Maintenance granted to wife cannot be canceled in view of husband’s obtaining a decree for restitution of conjugal rights:Tripura HC quashes Family Court’s Order Without considering wife’s explanation

Without taking consideration of wife’s explanation, maintenance granted to wife cannot be canceled in view of husband’s obtaining a decree for restitution of conjugal rights: Tripura HC

The Tripura High Court ruled that without taking consideration of wife’s explanation, maintenance granted to wife cannot be canceled in view of husband’s obtaining a decree for restitution of conjugal rights

Background 

Petitioner Sanjita Roy filed a petition in the Family Court, Agartala claiming maintenance allowance for herself and her minor son from her husband. Petitioner made some allegations of matrimonial cruelty against her husband. She alleged that after solemnization of her marriage with the respondent she accompanied her husband to his place. Few months thereafter, her respondent husband started committing torture on her for dowry. He demanded a sum of Rs.1,00,000/- in cash. Petitioner having failed to meet his demand, he committed physical assault on her on several occasions. However, in the midst of matrimonial discord and differences, she conceived and gave birth to a son. Even after the birth of their child, her respondent husband did not change his attitude towards her. Ultimately, she returned to her parents along with her son to get rid of torture of her husband. Having no means of earning, she claimed maintenance allowance from her husband. 

Arguments 

Advocate P.K. Ghosh, appearing for the petitioner wife, contended that the Family Court did not consider the fact that the amount of maintenance allowance which was granted by the Family Court also include the maintenance allowance payable to the son of the petitioner which cannot be canceled on the ground of failure of the petitioner wife to restore conjugal relationship with her husband.

Advocate R.G. Chakraborty, appearing for the respondent husband, argued that in terms of section 125(4) Cr.P.C, a wife who refuses to live with her husband without sufficient reason is not entitled to maintenance allowance under section 125 Cr.P.C.

Decision 

The single judge bench of Justice S.G. Chattopadhyay noted that after the ex-parte decree for restitution of conjugal rights was passed in favour of the husband, he did not call upon his wife to resume conjugal life through the process of executing the decree.

The court said that the Family Court did not consider the fact that the decree was passed ex-parte and her husband did not come out with an offer to her to return to the conjugal life through the process of execution of the decree. As a result, the wife could not come forward with her explanation as to why she was declining to return to her husband.

The court set aside the impugned order passed by the Additional Judge, Family Court, Agartala and restored the order with regard to payment of maintenance allowance to the wife and son of the petitioner.

Case title: Smti Sanjita Roy (Das) and Ors. v/s Sri Swapan Ch. Das and Ors. 

Citation: Crl. Rev. P. No. 18 of 2020 

Click here to read the Order/Judgment

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