The Delhi High Court has held that merely because a husband and wife have been living separately for several decades, the latter's statutory right to claim maintenance is not extinguished so long as the marriage continues to subsist.

Justice Madhu Jain made the observation while dismissing a petition filed by a retired Army personnel challenging an order of the Family Court directing him to pay ad-interim maintenance of Rs. 15,000 per month to his wife.

The parties had married in 1975 and had been living separately since around 1985. The husband contended that his wife had voluntarily left the matrimonial home and had remained separate from him for more than four decades. He also relied upon the delay in approaching the Court for maintenance.

The wife, however, alleged that she had been compelled to leave the matrimonial home on account of cruelty and ill-treatment.

Dismissing the plea, the Court noted that the circumstances in which the wife started living separately were seriously disputed by the parties.

It said that the question as to whether the wife left the matrimonial home of her own accord, whether she had sufficient reason to live separately, and whether the parties were living separately by mutual consent were matters which require appreciation of the pleadings and evidence.

It observed that at the stage of considering ad-interim maintenance, the Court is not required to finally adjudicate these disputed questions.

“The mere assertion of the husband that the wife deserted him cannot, by itself, defeat her claim for interim maintenance,” the Court observed.

On the issue of delay, the Court held that a long delay in seeking maintenance cannot, by itself, operate as a complete bar to the claim.

It said that maintenance is a continuing obligation, and the absence of an earlier claim does not necessarily establish that the wife had voluntarily relinquished her right to maintenance for all times to come.

The Court said the effect of the delay would have to be assessed along with the explanation furnished by the wife and other material available on record.

Further, Justice Jain noted that the parties continue to be husband and wife in the eyes of law and the husband cannot contend that merely because the wife has been living separately for several decades, her status as his wife has ceased or that her claim for maintenance is extinguished.

“Whether her separate residence falls within any of the exceptions under Section 125(4) Cr.P.C./Section 144(4) BNSS is a matter to be determined on the basis of evidence and the circumstances of the case,” the Court said.

It concluded that the husband's objections regarding desertion, delay, past employment and discrepancies in the affidavits did not justify setting aside the ad-interim order.

“The impugned order is an interim arrangement and does not prevent the petitioner from placing all relevant material before the learned Family Court or from seeking modification of the amount upon disclosure of the complete financial circumstances of both parties,” it said.

The Family Court was directed to proceed with the matter uninfluenced by the observations made by the High Court and to consider the affidavits, documents and objections of both parties while determining the further quantum of maintenance.

Title: X v. Y

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