Wife, Who Deserts Husband, Entitled To Maintenance After Divorce: Gujarat HC [Read Judgment]

‘Section 125(4) CrPC presupposes a right and an obligation to live with the husband’

Holding that the term ‘wife’ in Section 125(4) of the CrPC would not include a divorced wife, the Gujarat High Court has observed that a lady, from whom the husband obtained divorce on the ground of desertion, would still be entitled to maintenance.

Justice JB Pardiwala was considering the scope of the Section 125(4) of CrPC which says that no wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery or if without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.

One of the issues raised was whether the term “wife” in Section 125(4) of the CrPC includes a divorced wife.

The court observed that Subsection (4) of Section 125 conceives refusal to live with the husband without sufficient reason as sufficient justification for refusing maintenance and it presupposes a right and an obligation to live with the husband.

“Such a right and an obligation cannot be assumed in the case of divorced woman nor can a corresponding obligation in the erstwhile husband to keep the woman in his house be assumed. If so such a ground available for refusing allowance contemplated in Section 125(4) becomes inapplicable to the case of a divorced woman,” the court observed.

Referring to various apex court decisions, the court said after divorce, the concept of living together being not enforceable in law, custom or practice, the factum of separate living does not by itself disentitle the divorcee to claim for maintenance under Section 125 of the Code.

Recently, the apex court, in Manoj Kumar vs Champa Devi, upheld a Himachal Pradesh High Court order directing a husband to grant maintenance to his deserter wife, whom he had divorced, from the date when the divorce was decreed.

Read the Judgment here.