Rejection Of Maintenance Application In Divorce Proceedings Does Not Disentitle Wife To Seek Maintenance U/S 125 CrPC: Delhi High Court

The Delhi High Court has observed that the pendency of a divorce petition and rejection of an application for maintenance in such petition, would not disentitle the wife to seek maintenance under Section 125 of CrPC.

Justice Yogesh Khanna was dealing with a plea filed by a husband challenging the order and the maintenance petition under Sec. 125 Cr.P.C. pending adjudication before the Family Court.

It was the husband's case that the impugned order and the maintenance petition were in direct violation of the consent order duly clarified and reiterated by a Division Bench of High Court and the judgment passed by the Supreme Court. It was submitted that the Family Court, without appreciating the orders passed on the issue, in a mechanical manner had dismissed the application filed by the husband for dismissal of the maintenance petition filed by the respondent wife.

Noting that the petitioner husband was not making any payment of maintenance to his wife on the pretext that he was making payment of school fee of both his children, the Court was of the view that the Supreme Court order revealed that it was the petitioner himself who had voluntarily agreed to make payment of the school fee of both their children.

However, the Court also noted that such consent could not have been given at the cost of maintenance payable to the respondent wife and such a concession given by the petitioner husband cannot be read as contrary to the right of his wife to seek maintenance.

"Hence where the petitioner had himself violated the consent order with impunity, he cannot say the respondent has no right to seek the remedial measures. Admittedly, he has not paid any maintenance to the respondent for the last two years on the pretext he is making payment of school fee," the Court said.

It added "If he had any reservations, he could have intimated the Hon'ble Supreme Court at the time he volunteered to make payment of school fee of his children. Later he cannot allege because of school fee he is unable to pay any amount to his wife. The petitioner had stopped making payment of maintenance of respondent and thus finding no other alternative, the respondent moved an application under Section 125 Cr.P.C."

The Court said that no fault can be found in wife's action, since it was the petitioner husband who had first failed to comply with the consent order and thus he cannot later allege that the wife must act under the consent order.

"Pendency of a petition for divorce and rejection of an application for maintenance in such petition, would not disentitle the respondent to seek maintenance under Section 125 Cr.P.C. looking at its scope and ambit. The respondent cannot be left in lurch by denying her maintenance on the ground the petitioner is paying school fee," the Court observed.

Accordingly, the Court disposed of the plea by directing the trial court to refix the wife's maintenance considering effect of order of Supreme Court qua the petitioner's contribution towards educational expenses.

"… hence her maintenance be fixed again in view of these changed circumstances. Pending application(s), if any, also stands disposed of," the Court ordered.

Case Title: SOUMITRA KUMAR NAHAR v. PARUL NAHAR

Citation: 2022 LiveLaw (Del) 731

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