29 Jan 2023 4:01 AM GMT
The Bombay High Court has upheld the grant of maintenance to a woman, whose husband's petition for divorce was allowed by the family court on the ground of desertion and cruelty.Dealing with the argument that prior to the decree of divorce she had refused to live with the husband without a sufficient reason and thus cannot be held to be entitled to maintenance, the court said when she had...
The Bombay High Court has upheld the grant of maintenance to a woman, whose husband's petition for divorce was allowed by the family court on the ground of desertion and cruelty.
Dealing with the argument that prior to the decree of divorce she had refused to live with the husband without a sufficient reason and thus cannot be held to be entitled to maintenance, the court said when she had gone back to her matrimonial home but possibly saw no change in her husband's behaviour and left again, she cannot be said to have refused cohabitation without sufficient reasons under Section 125(4) of the Cr.P.C.
Justice G. A. Sanap of the Nagpur bench, while upholding the family court order, said if the wife had no desire at all to establish the cohabitation with the husband, she would not have at all agreed to join his company.
"The withdrawal of the petition for restitution of conjugal rights cannot be used against the petitioner No.1 [wife] to deny her the maintenance. The only inference in the backdrop of the above facts possible is that after all these efforts and settlement, she might have seen no change in the behaviour and attitude of the respondent and her mother and, therefore, she would have lost all the hopes to join and continue the company of the respondent [husband," the court said.
The court noted that the husband has no other dependents, and he is well qualified with a salary of Rs.45,000/- to Rs.46,000/ per month.
"The petitioner No.1 (wife) is also qualified woman. She is holding a diploma in pharmacy. Considering her background and the social status, she must be accustomed to lead standard lifestyle. She is entitled to live, befitting her qualification and position of the respondent (husband). The learned Judge has taken all these facts into consideration in quantifying the maintenance. In this backdrop, applying any standard and particularly the rise in prices of the essential commodities, the monthly maintenance quantified at the rate of Rs.7,000/- per month is just, reasonable and proper," the court said.
Her husband did not rebut her contentions regarding his liability to maintain her and her daughter and their inability to maintain themselves, the court noted.
"The perusal of the affidavit of examination-in-chief of the respondent would show that he has not adduced evidence in rebuttal, to deny the claim of the maintenance made by the petitioner No.1 and petitioner No.2, his monthly income and the source of income of the petitioner No.1. In my view, therefore, this document would be an evidence without pleading," it said.
The wife claimed that after one or two months of their marriage, her husband and mother-in-law started quarrelling with her and her husband also beat her on several occasions. Further, her husband and his mother used to taunt her for not giving dowry and were unhappy with the birth of a female child. She further said that her husband dropped her at her parents’ place and did not make any effort to establish cohabitation. She filed a petition for restitution of conjugal rights and a settlement was arrived at through mediation. However, she said, the husband and his mother drove her out by ill-treating her again and she withdrew her restitution petition.
The husband, who is employed in the Railways, claimed that after a few months of marriage his wife was not doing household work, and was quarrelling with him and his mother. She went to her parents’ house without informing him and did not respond properly when he went to pick her up. Even after the settlement, she did not change her behaviour and caused mental torture and cruelty to him and his mother and deprived him of his daughter’s company, he said.
The family court granted divorce in the husband’s case on grounds of desertion and cruelty. It also awarded Rs. 7000/- monthly maintenance each to the wife and minor daughter. Hence, he approached the high court in the revision application challenging order of maintenance to his wife.
The husband argued that his wife is not entitled to maintenance as the divorce has been granted on the ground of desertion and cruelty. The court was also told she is a registered pharmacist and has been working with a pharmaceutical company at Nagpur.
The court relied on Apex Court judgment Rohtash Singh v. Ramendri and concluded that divorce on grounds of desertion and cruelty would not free the husband of his duty to pay maintenance to his wife. “…merely because of the decree of divorce on the ground of desertion and cruelty, the husband would not be absolved of his duty to pay the maintenance to the wife under Section 125 of the Cr.P.C.”
The court noted from the husband’s evidence that he was under the control of his mother. He admitted in his affidavit that he dropped his wife to her parents’ house on his own. It further said that his wife issued notice to him to resume cohabitation, but he made no serious efforts to fetch her back. Thus, the court rejected his contention that the wife is not entitled to maintenance as she refused to live with him without a sufficient reason.
The court did not comment on the divorce decree granted in the husband’s petition as it is under challenge in an appeal. The court said that the wife, not having remarried, is entitled to maintenance as a divorced woman.
The court noted that the wife’s evidence to substantiate her claim has gone unchallenged. Her claim cannot be denied only on the ground that she is holding a diploma in pharmacy, the court said.
Further, the court noted that their daughter would be more than 10-years-old now and is taking education, but the husband has not made any maintenance provision for her. The court concluded that the wife proved that she has no source of income to maintain herself and her daughter and the husband failed in maintaining them despite having sufficient means.
Advocate S. M. Bhangde represented the husband while advocate P. S. Tiwari represented the wife.
Case no. – Criminal Revision No. 216 of 2019
Case Title – Amit S/o. Suresh Pali v. Rita D/o. Ramavtar Pal
Citation: 2023 LiveLaw (Bom) 59