Divorced Wife Can Continue To Claim Maintenance If She Has Not Remarried: Calcutta High Court
The Calcutta High Court has held that an ex parte decree of divorce obtained by a husband does not, by itself, extinguish his statutory obligation to maintain his former wife if she has not remarried and is unable to maintain herself.
At the same time, the Court held that an unmarried daughter who had already attained majority before the filing of a Section 125 CrPC maintenance petition and was not suffering from any physical or mental abnormality could not claim maintenance under the provision.
Justice Uday Kumar made the observations while partly allowing a criminal revision petition filed by Samar Paul challenging the continuation of maintenance proceedings initiated by his wife, Jyotsna Paul, as well as consequential execution proceedings before the Judicial Magistrate, 1st Court, Uluberia, Howrah.
The dispute arose from Miscellaneous Case No. 41 of 2019 under Section 125 CrPC and Miscellaneous Execution Case No. 61 of 2021. The husband had challenged an interim maintenance order dated October 15, 2019, a subsequent order dated October 6, 2023, rejecting his plea that the proceedings had become non-maintainable following his divorce, and an order dated March 2, 2024, which ultimately led to the issuance of distress warrants on April 4, 2024.
The couple had married on February 11, 1995, and had two children, a son born in 1996 and a daughter, Sangita Paul, born on October 15, 1999.
The marriage deteriorated over the years and resulted in multiple civil and criminal proceedings. Following an incident on July 15, 2018, the wife lodged an FIR alleging physical assault and acid-related violence against her. The husband subsequently initiated matrimonial proceedings seeking dissolution of marriage.
The husband's matrimonial suit proceeded ex parte and resulted in a decree of divorce on June 20, 2022. The wife thereafter filed an application under Order IX Rule 13 CPC seeking setting aside of the ex parte decree, which remained pending.
Meanwhile, the wife had obtained an interim maintenance order in 2019 directing payment of Rs. 3,500 per month in aggregate, comprising Rs. 1,500 for herself and Rs. 2,000 for the daughter.
The husband argued before the High Court that the divorce decree had extinguished the matrimonial relationship and, consequently, his obligation to pay maintenance to his wife. He also argued that the daughter had attained majority in October 2017, before the Section 125 proceedings were instituted, and was a healthy individual pursuing education.
Rejecting the challenge concerning the wife's maintenance claim, Justice Kumar referred to Explanation (b) to Section 125(1) CrPC, which expressly includes within the definition of “wife” a woman who has been divorced by her husband and has not remarried.
“The dissolution of a marriage, even though a decree secured by the husband, does not ipso facto wipe out his statutory obligation to maintain his former wife,” the Court held, subject to the statutory requirements.
The Court relied on the Supreme Court judgments in Vanamala v. H.M. Ranganatha Bhatta and Rohtash Singh v. Smt. Ramendri, which recognise that a divorced woman who has not remarried continues to fall within the statutory definition of “wife” for the purposes of Section 125 CrPC.
The High Court also refused to determine disputed questions concerning the parties' respective financial circumstances at the stage of exercising its jurisdiction under Section 482 CrPC.
“The factual disputes concerning rental incomes, property ouster, and the merits of the pending setting-aside application under Order 9 Rule 13 of the Code of Civil Procedure... are matters meant for trial,” the Court observed.
However, the Court accepted the husband's challenge insofar as it concerned the daughter.
The Court noted that Sangita had attained majority in October 2017, almost two years before the maintenance petition was filed in 2019. It further recorded that she was a healthy individual without any physical or mental disability.
Under Section 125(1)(c) CrPC, maintenance can be granted to a major child only where, by reason of physical or mental abnormality or injury, the child is unable to maintain itself.
Relying on the Supreme Court's decision in Abhilasha v. Parkash, the Court held that the daughter's claim could not be sustained under Section 125 CrPC.
The Court clarified that an unmarried Hindu daughter may have a separate civil remedy under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956, but such a right cannot be used to expand the scope of Section 125 CrPC.
“Her inclusion in the maintenance order is therefore wholly without jurisdiction and cannot be sustained in law,” the Court held.
The Court also considered the husband's challenge to the coercive execution proceedings in light of the Supreme Court's directions in Rajnesh v. Neha concerning disclosure of assets and liabilities in maintenance proceedings.
The High Court observed that the interim maintenance order in the present case dated back to 2019, before the Supreme Court's 2021 directions. It noted that the parties had presented sharply conflicting accounts regarding the husband's financial position, with the husband claiming that he had lost his livelihood while the wife alleged that he continued to run his business and had sufficient means.
The Court held that such factual disputes could not be resolved through guesswork and that execution proceedings could not become a “blind, punitive tool”.
It consequently stayed the coercive execution proceedings and distress warrants, subject to the husband depositing 50% of the genuine accumulated arrears payable to the wife, excluding the daughter's share, before the trial court within four weeks.
The Court directed the trial Magistrate to endeavour to dispose of the main maintenance proceeding by a reasoned final order as expeditiously as possible.
Accordingly, the High Court partly allowed the revision petition. The wife's Section 125 maintenance proceedings and execution proceedings were permitted to continue, while the maintenance award and consequential execution proceedings concerning the major daughter were set aside.
Case: SAMAR PAUL VS. THE STATE OF WEST BENGAL AND ANR.
Case No: CRR 1438 OF 2024