Wife Can Seek Maintenance Under Section 125 CrPC If She Has Challenged Divorce Decree And Hasn’t Accepted Permanent Alimony Under Section 25 Hindu Marriage Act.
Despite the Family Court’s grant of a divorce order, the Allahabad High Court recently awarded a wife’s claim for maintenance under Section 125 of the CrPC, noting that an appeal against the decree was pending before the Court and had not reached finality.
In this case, revisionist Tarun Pandit filed a criminal revision case against The State of U.P. and in another here the husband’s argument that a divorced wife cannot demand support under Section 125 CrPC was dismissed by Justice Syed Aftab Husain Rizvi. It further dismissed the claim that because the Family Court had granted permanent alimony under Section 25 of the Hindu Marriage Act, no maintenance could be granted under the CrPC.
It was noted, “It is apparent that O.P. No. 2 (wife) has not accepted the amount of alimony because she has appealed the divorce order and the appeal is still pending, and she cannot accept the amount of alimony in those circumstances. As a result, she does not have sufficient financial resources because she has been awarded perpetual alimony. She is currently destitute since she lacks a source of income and financial support to support herself.”
The Court was hearing a revision case brought by the husband against the Family Court’s judgment and decision, in which the court granted Rs. 25 lacs in perpetual alimony under Section 25 of the Hindu Marriage Act while granting the husband’s divorce under Section 13 of the Hindu Marriage Act.
The lawyer for Opposite Party No. 2 (wife) claimed that she has not accepted the amount of alimony, which is now pending in court, and that accepting the alimony would imply approval of the divorce order. It was further claimed that Opposite Party No. 2 never requested or submitted an application for permanent alimony under Section 25 of the Hindu Marriage Act and that the court granted it of its own volition.
The Court stated at the outset that the husband had filed a divorce petition in this instance. It is being challenged by the wife, who has filed an appeal and has refused to accept the permanent alimony that has been deposited in the lower court.
It then referred to the case of Rajnesh vs. Neha, in which the Supreme Court provided rules on matrimonial maintenance payment and held that a wife can file a claim for maintenance under various statutes.
It then cited the case of Rohtash Singh vs. Ramendri [(2000) 3 SCC 180], in which the Supreme Court declared that if a divorced wife is unable to support herself and has not remarried, she is entitled to maintenance. The Apex Court ruled that Claim for maintenance under the first part of Section 125 Cr.P.C. is predicated on the continuation of the marriage, whereas the divorced wife’s claim for maintenance is based on Explanation (b) to sub-section (1) of the Constitution provides a solid foundation.
If the divorced wife is unable to work, Section 125 Cr.P.C. applies. She will be able to support herself if she hasn’t remarried. A woman has two distinct rights for maintenance. As
a wife, she is entitled to maintenance unless she suffers
from 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. A woman after divorce becomes 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 essential question to be considered is whether, after the Court has granted permanent alimony under Section 25 of the Act, a Magistrate can make a request for maintenance in excess of what has been granted by the Court while exercising power under Section 25 of the Act.
Applying the aforementioned proposition of law to the facts at hand, the Court concluded that it is apparent that the wife has not accepted the amount of alimony because she has appealed the divorce decree.
Applying the aforementioned proposition of law to the facts at hand, the Court concluded that it is apparent that the wife has not accepted the amount of alimony because she has appealed the divorce decree.