Wife to claim maintenance even when appeal is pending against divorce: Allahabad HC

Wife to claim maintenance even when appeal is pending against divorce: Allahabad HC

The Allahabad High Court has held that the wife can claim maintenance even when appeal is pending against divorce.

A revision petition filed by the husband who claimed that the Family Court could not have granted maintenance to the wife under Section 125 CrPC when divorce was already granted in his favour under Section 13 of Hindu Marriage Act. The criminal revision was directed against the decision of the Family Court. By the said impugned order, maintenance application under Section 125 CrPC of OP 2 was allowed and a maintenance amount of Rs25,000 was awarded.

The wife submitted that she was mentally and physically tortured and later was left at her maternal house with her father. Opposite Party started ignoring her and not maintaining her, in fact deserted her. Further, she added that she had no source of income while the opposite party was Squadron Leader in Air Force, and his salary was Rs 80,000 per month. Hence, OP 2 had claimed a maintenance allowance of Rs 40,000.

The husband contended that Family Court, Meerut in divorce petition under Section 13 of Hindu Marriage Act had granted divorce decree in favour of the revisionist and had also awarded Rs 25 lacs as permanent alimony under Section 25 of the Hindu Marriage Act while passing the decree of divorce and hence, no maintenance under Section 125 CrPC could be awarded and application was not maintainable.

Hence, OP 2 had Rs 25 lakhs at her disposal and it could not be said that there were no financial resources and there was no question of non-sustenance.

The Court below lost its sight in not considering the legal proposition that a divorced wife can claim maintenance under Section 25 of the Hindu Marriage Act and not under Section 125 CrPC. 

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled married can claim maintenance under Section 25 of Hindu Marriage Act.

It is only such court which passed the divorce decree who is alone competent to grant maintenance under Section 25 of the Hindu Marriage Act.

Therefore, the impugned order was absolutely illegal, arbitrary and against the said principles of law.

As per the Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324, a wife can make a claim for maintenance under different statutes and there was no bar to seek maintenance both under the protection of Women against Domestic Violence Act, 2005 and Section 125 of CrPC or under Hindu Marriage Act.

The Bench of Justice Syed Aftab Husain Rizvi noted that, in the present set of facts, it was clear that the wife did not accept the alimony as she had challenged the divorce decree and the same was pending and in those circumstances, she could not have accepted the amount of alimony.

The High Court stated that she had no source of income and financial support to maintain her and hence came under the category of destitute. Therefore, the impugned order did not suffer from any illegality or infirmity.

Since no infirmity was found in the order of the Court below, the revision was liable to be dismissed. 

Case: Tarun Pandit v. State of U.P.

Citation: Criminal Revision No. 1154 of 2021, decided on 6-1-2022

Click Here To Read Judgement / Order

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