If a divorced wife is entitled for maintenance, there is no reason why a wife who is judicially separated is not entitled for maintenance, the court said.
The Supreme Court has observed that a judicially separated wife is also entitled for maintenance.
The wife had approached the apex court after the order granting maintenance by the trial court was set aside by Patna High Court.
The bench of Justices Madan Lokur and Dipak Gupta was considering a submission put forth on behalf of the husband that there is already a decree of judicial separation and in view of Section 125(4) of the Code of Criminal Procedure, 1973, the wife is not entitled to any maintenance.
“We are noting this argument only to reject it since we find no substance in this argument. If a divorced wife is entitled for maintenance, there is no reason why a wife who is judicially separated is not entitled for maintenance,” the bench said.
It added that it does not subscribe to the view of the high court that merely because the trial court has not given a finding that the wife is not able to look after herself, she is not entitled for maintenance. The High Court is required to look into the question whether the petitioner is entitled to maintenance or not and, if so, the quantum of maintenance, the bench said.
Remanding the matter to the high court, the bench also asked it to take note of the submission that no maintenance has been paid for the last nine years.
The high court, by quoting the apex court decision in Chaturbhuj vs Sita Bai, had observed thus: “A duty is cast upon the Court that before maintenance allowance is awarded in favour of the wife, two conditions have to be satisfied. (i) There must be a finding of fact that the wife is unable to maintain herself and; (ii) that her husband has sufficient means but neglects or refuses to maintain the wife. Unless such findings of facts are recorded, the Court concerned cannot award maintenance allowance in terms of Section 125(1) of the Code of Criminal Procedure.”