Does Divorce On Ground Of Desertion Bar A Wife From Claiming Maintenance U/S 125 CrPC? Allahabad High Court Answers
The Allahabad High Court has held that a divorced woman can claim maintenance under Section 125 CrPC from her former husband even where the divorce was granted on the ground of her desertion, provided she has not remarried and is unable to maintain herself.
A bench of Justice Ram Manohar Narayan Mishra made the observation while allowing a criminal revision filed by a woman whose maintenance claim had been rejected by the Family Court, Sultanpur.
The Court relied on the Supreme Court's judgment in Rohtash Singh v. Smt. Ramendri 2000 and noted that a divorced woman continues to enjoy the status of a 'wife' for the limited purpose of claiming maintenance under Section 125 CrPC.
Case in brief
Briefly put, the Revisionist-wife (Suneeta) had initially filed a maintenance petition under Section 125 CrPC in 2009. She alleged that she had been married to the respondent according to Hindu rites and rituals and was sent to her matrimonial home after the gauna ceremony.
She alleged that after her husband joined the Indian Army, he and his family members subjected her to harassment and torture and demanded ₹1 lakh in cash, a Hero Honda motorcycle and a color television as additional dowry.
She further alleged that her husband subsequently claimed to have solemnized a second marriage and refused to maintain her and their child.
The husband disputed the allegations and claimed that the wife herself had deserted him and was unwilling to live with him. He also stated that he had filed proceedings for restitution of conjugal rights.
The maintenance proceedings were subsequently transferred to the Family Court, Sultanpur. The Family Court rejected the wife's claim, finding, among other things, that she had failed to establish sufficient and reasonable grounds for living separately from her husband.
Challenging the Family Court's order, the Revisionist-Wife moved the High Court.
During the proceedings before the High Court, it emerged that the husband had obtained an ex parte decree of divorce on September 25, 2014, on the ground of desertion.
The High Court also noted material indicating that the husband had subsequently remarried and that the name of the second woman had been recorded as his wife in his service records.
The question before the High Court was, therefore, whether the divorce decree, including the ground of desertion, prevented the woman from claiming maintenance as a divorced wife.
High Court's observations
The High Court referred to the Supreme Court's decision in Rohtash Singh, where the Court had considered whether a divorced woman could claim maintenance under Section 125 CrPC when the divorce had been granted on the ground of her desertion.
The Supreme Court had held that although the marital relationship comes to an end following divorce, a divorced woman continues to be a 'wife' within the meaning of Section 125 CrPC by virtue of Explanation (b) to sub-section (1).
It had further held that if the divorced wife is unable to maintain herself and has not remarried, she is entitled to maintenance. The fact that the divorce was granted on the ground of desertion does not, by itself, bar such a claim.
The Allahabad High Court accordingly observed thus:
"…the law is very clear on this aspect that a divorced woman is also entitled to maintenance until she gets remarried or she is capable to maintain herself by her own earning, if there is no legal embargo".
The High Court said that the Family Court's order rejecting the maintenance claim "in toto" could not be sustained and was vitiated by legal and factual errors.
It clarified that even if the woman was not found entitled to maintenance for the period prior to the divorce, she was entitled to seek maintenance from her husband from the date of divorce, i.e., September 25, 2014, onwards, provided she did not remarry.
The Court also held that the woman's minor son was entitled to maintenance until attaining majority, after accounting for the maintenance already received through the Army authorities.
The matter was remitted to the Family Court for fresh consideration. The High Court directed the parties to file affidavits disclosing their assets, income and liabilities in terms of the Supreme Court's directions in Rajnesh v. Neha.
Pending fresh adjudication, the husband was directed to pay ₹4,000 per month as interim maintenance to the woman.
The revision was accordingly allowed.
Case Title - Suneeta vs. State Of U.P. And Anr. 2026 LiveLaw (AB) 740
Case Citation: 2026 LiveLaw (AB) 740