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Divorced wife entitled to maintenance: SC

Our Legal Correspondent

NEW DELHI, March 7

A WIFE, even though legally divorced on the ground of `desertion', would be entitled to maintenance, in case she has not remarried and is unable to maintain herself.

``A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man, who was once her husband, continues to be under a statutory duty and obligation to provide maintenance to her'', the court said.

The ruling was given by a Division Bench comprising Mr. Justice S. Saghir Ahmad and Mr. Justice D.P. Wadhwa, while dismissing a special leave petition by a husband against a judgment of the Allahabad High Court dismissing his revision.

The petitioner, Mr. Rohtash Singh, a member of the Indian armed forces, was married to respondent, Ms. Ramendri, on May 10, 1990. Since, the petitioner was posted away from his home, he left the respondent with his parents living jointly with his elder b rother and his family at his family house in Kota village of Meerut district in Uttar Pradesh.

The respondent wanted to live with the petitioner, which did not appear possible. She, therefore, left her marital home and shifted to her father's house in 1991 never to return. This led the husband to file a suit for divorce in 1993 under Section 13 of the Hindu Marriage Act on the ground of desertion.

A Meerut family court decreed the suit of the husband on July 15, 1995.

During the pendency of the suit for divorce, the respondent had filed an application for maintenance under Section 125 CrPC on May 28, 1993 which was allowed by the family court on March 13, 1997, in spite of the fact that the decree of divorce in favour of the petitioner on the ground of respondent's desertion was brought to the notice of the court.

The grant of maintenance by the family court was challenged by the petitioner in the High Court in revision, which was dismissed. Hence, the special leave petition before the Supreme Court.

The only question to be settled by the apex court was whether a wife against whom a decree for divorce had been passed on account of her deserting the husband could claim maintenance allowance under Section 125 CrPC and how far could the plea of desertio n be treated to be an effective plea in support of the husband's refusal to pay her the maintenance allowance. The court answered the question in favour of the wife.

``On account of explanation (b) to sub-section (1) of Section 125 CrPC, a woman, who has been divorced on account of a decree passed by a family court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claimi ng maintenance allowance from her ex-husband'', the Supreme Court judges observed.

The court noted that the Calcutta High Court in an identical case had held that the wife even though divorced on the ground of deserting her husband, she was nonetheless was entitled to maintenance.

``The Allahabad High Court also had taken a similar view in the present case. We approve these decisions'', the judges added.

A woman, the court said, has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers any of the disabilities indicated in Section 125(4). In another capacity, namely as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife, the judges pointed out.