Case at a Glance
A Family Court in Sultanpur had dismissed a wife’s Section 125 CrPC maintenance claim, holding she had no sufficient reason to live apart from her husband, a soldier who later obtained an ex parte divorce on the ground of desertion and remarried. The Allahabad High Court set aside that order, holding that a divorced woman remains entitled to maintenance until she remarries or is able to maintain herself, and that a desertion-based divorce does not bar maintenance after the decree. The matter was remitted for fresh decision within six months, with interim maintenance of Rs. 4,000 a month in the meantime.
The marriage was solemnised in childhood according to Hindu rites, and the gauna took place about nine years later. The husband joined the EME Corps of the Indian Army. The wife alleged dowry demands of Rs. 1,00,000 in cash, a motorcycle and a colour TV, an attempt to set her on fire on 12 February 2007, and a second marriage by the husband in 2008. The husband admitted the marriage but said she had deserted him, relied on a compromise dated 16 February 2007, and put his income at Rs. 23,000 a month.
From 2008 the Army deducted 15% of the husband’s pay as maintenance, but its records were inconsistent about whether it covered the wife, the son or both, and the payments stopped after his discharge on 31 December 2018. Meanwhile, the husband obtained an ex parte divorce decree under Section 13 of the Hindu Marriage Act on 25 September 2014 on the ground of desertion, and remarried. On 22 December 2018 the Principal Judge, Family Court, Sultanpur dismissed the wife’s maintenance claim, finding that she had not shown sufficient reason for living apart. She filed a revision under Section 19(4) of the Family Courts Act, 1984.
The Key Question Before the Court
Does a decree of divorce on the ground of the wife’s desertion, followed by the husband’s remarriage, disentitle her from claiming maintenance under Section 125 CrPC?
A Divorced Wife Is Still a ’Wife’ for Section 125
The husband relied on decisions of the Madras High Court (Maheswari v. Ayyappan) and the Delhi High Court (Seema Devi v. Shree Ranjit Kumar Bhagat, (2023) 04 DEL CK 0100) on the effect of remarriage after an ex parte divorce. Considering those decisions, Section 15 of the Hindu Marriage Act and Krishnaveni Rai v. Pankaj Rai, (2020) 02 SC CK 0089, (2020) 11 SCC 253, Justice Ram Manohar Narayan Mishra concluded that “a divorced woman is also entitled to maintenance until she gets remarried” or is able to maintain herself.
Relying on Rohtash Singh v. Smt. Ramendri, (2000) 03 SC CK 0019, AIR 2000 SC 952, the Court noted that a divorced woman continues to be a “wife” under Explanation (b) to Section 125(1) CrPC, and that a divorce on the ground of desertion does not bar maintenance after the decree, though, as held in Shiv Kumar Dheer v. Anjali Rani, 1983 CRLJ 36 (Calcutta High Court), it may affect the period before the decree. The Family Court’s own finding that she had no independent income was upheld. The Court held that “The revisionist is entitled to receive maintenance from her husband from the date of divorce”, that the son is entitled to maintenance until majority (excluding the period covered by Army deductions), and, following Rajnesh v. Neha, (2020) 11 SC CK 0009, (2021) 2 SCC 324, directed both sides to file affidavits of assets and liabilities.
What the Court Actually Held
- A divorced woman remains entitled to maintenance under Section 125 CrPC until she remarries or becomes able to maintain herself.
- A divorce decree on the ground of desertion does not bar maintenance for the period after the decree.
- The Family Court order dated 22 December 2018 was set aside and the matter remitted for fresh decision within six months, with liberty to both sides to lead further evidence and file asset-liability affidavits as per Rajnesh v. Neha.
- The husband must pay Rs. 4,000 a month as interim maintenance during the remand; amounts paid under earlier interim orders will be set off against arrears.
Why This Judgment Matters
- Husbands often treat an ex parte divorce as the end of all maintenance liability; this judgment confirms it is not.
- It clarifies the different treatment of the pre-decree and post-decree periods where divorce is granted for desertion.
- It applies Rajnesh v. Neha disclosure norms even at the revision-and-remand stage.
What Should Advocates Take Away From the Judgment?
For Wives
- A divorce decree, even one passed ex parte, does not by itself end your right to maintenance under Section 125 CrPC.
- Lack of independent income must be shown; keep evidence ready of your means and the husband’s earnings.
For Counsel
- Distinguish the claim for the period before and after the decree when divorce was granted for desertion.
- Cite Rohtash Singh v. Ramendri and Explanation (b) to Section 125(1) CrPC; file Rajnesh affidavits early.
Key Takeaways
- A divorced wife is a ’wife’ for Section 125 CrPC until she remarries.
- Desertion-based divorce does not bar maintenance after the decree.
- Children’s maintenance continues till majority, subject to adjustment of amounts already paid.
- Interim maintenance of Rs. 4,000 per month was ordered pending a fresh decision within six months.
Frequently Asked Questions
Can a wife claim maintenance after her husband gets an ex parte divorce?
Yes. The Allahabad High Court held that a divorced woman is entitled to maintenance under Section 125 CrPC until she remarries or can maintain herself, and that a desertion-based divorce does not bar maintenance after the decree.
Does the husband’s remarriage affect the first wife’s maintenance?
No. In this case the husband had remarried, but the Court still held the divorced wife entitled to maintenance from the date of divorce.
What did the High Court finally order?
It set aside the Family Court’s order, remitted the case for decision within six months, directed both parties to file asset and income affidavits, and ordered Rs. 4,000 per month as interim maintenance.
Conclusion
The judgment protects women who are divorced in their absence and then left without support. A decree of divorce changes the marital status, but under Section 125 CrPC it does not extinguish the duty to maintain a former wife who has not remarried and cannot support herself.
Practical takeaway: When a husband pleads an ex parte desertion decree as a bar, respond with Rohtash Singh and claim maintenance at least from the date of the divorce decree.
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