SC To Examine If A Husband Who Obtained Decree Of Restitution Of Conjugal Rights Liable To Maintain Wife? [Read Order]

In the special leave petition challenging an order passed by Allahabad High Court, it was contended by the husband that the findings in the proceeding under Section 9 of the Hindu Marriage Act, 1955 are that the wife is staying away from the matrimonial home without any sufficient reason. Referring to Sub-section 4 of Section 125 of Cr.P.C. , it was urged that there is no liability of the husband to pay maintenance in case wife is staying away without any sufficient reason.

While issuing notice in Subrat Kumar Sen vs. State of UP, the bench comprising Justice Sanjay Kishan Kaul and Justice KM Joseph said:

We are faced with the scenario where there are conflicting views taken by the courts in proceedings under Section 125 Cr.P.C. and under Section 9 of the Hindu Marriage Act and the impugned order of the High Court in the Revision Petition does not really add to the discussion.

The impugned judgment by the Allahabad High Court is a brief one and does not address the legal issue at all. 

In a related issue, recently the Supreme Court had reiterated that a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.

There are conflicting rulings by High Courts on the issue of maintainability of Section 125 CrPC petition when there is a decree of restitution of conjugal rights in favour of husband. The judgment in this case might settle the conflict in this matter. 

Conflicting views by various High Courts

One important judgment which elaborately deal with this issue is that by a division bench of Punjab and Haryana High Court in Ravi Kumar vs.Santosh Kumari, 1997(3) RCR (Criminal). It was held thus:

• The wife against whom a decree of restitution of conjugal rights has been passed by the Civil Court, shall not be entitled to claim allowance under Section 125 of the Code of Criminal Procedure if in the proceedings of restitution of conjugal rights before the Civil Court, a specific issue has been framed that whether without sufficient reason, the wife refuses to live with the husband, and the parties have been given an opportunity to lead evidence and thereafter specific findings are recorded by the Civil Court on this issue;
• But in case the husband has got an ex-parte decree of restitution of conjugal rights from the Civil Court, such decree shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125 of the Code of Criminal Procedure;
• In case the decree for restitution of conjugal rights has been obtained by the husband subsequent to the order for maintenance passed by the Magistrate under Section 125, Criminal Procedure Code then the decree ipso facto, shall not disentitle the wife to her right of maintenance and in that case, the husband will have to approach the Court of the Magistrate under Sub- section (5) of Section 125 of the Code of Criminal Procedure for cancelling the order granting maintenance under Section 125, Criminal Procedure Code
• The wife against whom decree of restitution of conjugal rights in the manner indicated in our first conclusion has been passed, will get the right to claim maintenance from the husband with effect from the date when she is granted divorce and she will continue getting this maintenance till she re-marries.

The same view is seen reflected in Girishbhai Babubhai Raja v. Hansaben Girishchandra 1986 (l) Gujarat Law Reporter 630, which held that the decree passed by the Civil Court was binding on the Criminal Court and the same issue could not be tried once again by the Magistrate under Section 125 of the Code of Criminal Procedure.

The Himachal Pradesh High Court, in Hem Raj vs Urmila Devi, has held that, once a Civil Court has found in a contested proceeding on the basis of evidence that the wife had no just or reasonable cause to withdraw her society from the husband, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure. Distinguishing this judgment, the Kerala High Court in Haizaz Pashaw vs Gulzar Banu, has held that the ex parte decree for restitution of conjugal rights obtained by the petitioner against his wife is not an absolute bar to the consideration of the petition under Section 125 CrPC.

On the contrary, in Babulal vs. Sunita, a single bench of Madhya Pradesh High Court has held that, in the absence of any statutory bar, the wife's application for maintenance under that section cannot be rejected merely because the husband had obtained a decree of restitution of conjugal rights against her and she declined to comply with it.

The Andhra Pradesh High Court, in Maddina Subbamma v. Maddina Venkateswarlu, 1993(1) SLJ 92, held that a decree for restitution of conjugal rights is not an absolute bar to the consideration of a petition under Section 125 of the Criminal Procedure Code. Referring to certain rulings of other High Courts, it was held that though there was a decree for restitution of conjugal rights, the wife had justifiable grounds to stay away from the husband and in such circumstances, maintenance could be granted to her.

In Subal Das vs Mousumi Saha, a single bench of Tripura High Court had held that mere existence or non-compliance of a decree of restitution of the conjugal life by itself would not debar or disentitle the wife within the meaning of Section 125 of the Cr.P.C. from getting an order of maintenance.

Two single bench of Allahabad High Court has given conflicting views in this issue. In Charan Singh vs Jaya Wati, another single bench, without referring the issue to larger bench, sided with the view that the petition for maintenance can be maintainable even when there is a decree of restitution in favour of husband.

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