Divorce On Ground Of 'Desertion' By Wife Doesn't Absolve Husband From Providing Her Maintenance U/S 125 CrPC: Orissa High Court

The Orissa High Court has held that merely because divorce was granted in favour of husband on the ground of desertion by wife, it per se does not bar grant of maintenance to the wife subsequent to the divorce. Clarifying the position of law, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi was of the opinion that–“Under the BNSS, the maintenance provision stands renumbered as Section 144. The Explanation continues to include within the expression “wife” a divorced woman who has not remarried… In view of the above authorities, the legal position is clear that the decree of divorce on the ground of desertion does not, by itself, create a statutory bar to post-divorce maintenance. Therefore, the petitioner cannot succeed on the broad proposition that the present proceeding is inherently non-maintainable merely because the finding of desertion has attained finality.”The petitioner-husband and the opposite party-wife got married as per Hindu rituals and customs on 05.12.2003. The wife allegedly left the matrimonial home on 15.01.2004 and never returned thereafter despite efforts for restitution of conjugal life. Ultimately, the petitioner filed a divorce petition, during the pendency of which the wife was granted pendente lite maintenance.Subsequently, due to the failure of the petitioner to comply with maintenance order, his pleading in the divorce proceeding was struck off and the petition was dismissed. The opposite-party initiated separate proceedings under Section 125 CrPC in which she was granted maintenance of ₹20,000/- per month. The petitioner challenged the said order before the High Court. After compliance with the maintenance arrears, the dismissed divorce proceeding was restored. The wife thereafter filed an application under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. The Family Court dismissed the petitioner's prayer for divorce and allowed the wife's counter-claim for restitution of conjugal rights.The High Court by an order dated 14.07.2022 dismissed the petitioner's challenge to the maintenance order and affirmed the grant of maintenance under Section 125, CrPC. Thereafter, while deciding the husband's matrimonial appeal against dismissal of divorce petition, the High Court on 21.11.2023 reversed the Family Court's decision by allowing divorce on the ground of desertion, and observed that the amounts already paid by the husband would constitute permanent alimony.Pursuant to the aforesaid order, the petitioner stopped paying maintenance to the wife from November 2023. Against the said order, the wife filed a special leave petition before the Supreme Court which though did not reverse the High Court's order, granted liberty to the parties to avail appropriate remedy before competent forum. Therefore, the wife filed another application under Section 125 CrPC/Section 144 BNSS seeking post-divorce maintenance, which has been assailed by the petitioner in this application under Section 528 BNSS before the High Court.The questions which arose for consideration were as to whether after a decree of divorce on the ground of desertion, the bar under Section 125(4) CrPC/Section 144(4) BNSS can be invoked to defeat the wife's post-divorce claim for maintenance and whether the High Court's observation that the amounts already paid would constitute permanent alimony automatically extinguishes the earlier maintenance order under Section 125 CrPC.To answer the first question, the Court resorted to the meaning of 'wife' as per Section 125 CrPC/Section 144 BNSS, which includes divorced wife for the limited purpose of maintenance. Thereafter, the Court relied upon the judgments of the Apex Court in Rohtash Singh v. Ramendri (2000) and Dr. Swapan Kumar Banerjee v. State of West Bengal (2019), which commonly held that desertion as a ground for divorce is not per se a bar to post-divorce maintenance.So far as the claim of the petitioner that the High Court's observation to the effect of permanent alimony extinguished the wife's claim for continued maintenance in the post-divorce scenario, the Court held that such claim cannot be decided by the High Court in exercise of its inherent jurisdiction under Section 528, BNSS. It thus held–“The petitioner has full liberty to raise all objections available in law before that forum, including objections founded on the divorce decree, the observation regarding permanent alimony, the payments already made, the plea of satisfaction or adjustment, and the statutory consequence flowing from Section 146 BNSS or any other applicable provision…Where the dispute is whether an earlier final maintenance order survives, stands satisfied, or requires variation in view of subsequent matrimonial adjudication, the proper course is to permit the competent court to examine the matter on its own statutory terms rather than foreclose the inquiry at threshold.”Accordingly, liberty was granted to the petitioner to file an application for cancellation or variation of ...

Divorce On Ground Of 'Desertion' By Wife Doesn't Absolve Husband From Providing Her Maintenance U/S 125 CrPC: Orissa High Court

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