Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajit Singh, JJ., while setting aside a decree of divorce addressed the issue of granting maintenance to a widowed wife.
Present application was filed for modification of Court’s earlier order whereby the appellant wife’s appeal against the divorce decree granted to the husband was dismissed as withdrawn.
An appeal that was filed in the year 2009 challenged the decree of divorce passed in favour of the respondent-husband. The said appeal was pending for a period of 9 years.
The appeal came up before the Court on 12-04-2018, Court inquired from the appellant and counsel for the respondent-husband as to whether there was any chance of settlement between the parties, to which both parties agreed to live together.
Pursuant to that, both parties resumed cohabitation. The appellant wife requested for withdrawing her appeal as no dispute survived since both parties were now happily living together.
The High Court allowed the withdrawal of appeal, however, without interfering in the decree of divorce already granted in favour of the husband.
Subsequently, the respondent-husband passed away. The appellant wife now claimed maintenance under Hindu Adoption and Maintenance Act as his widowed wife. Consequently, she sought the modification of the Court’s earlier order dismissing her appeal as withdrawn without interfering in the decree of divorce passed by the trial court.
Analysis and Decision
In the present scenarios, except the son and the appellant, there was no one else to claim as the heir of the deceased respondent and hence the only legal heir entitled to inherit the estate of the deceased is the appellant and her son.
During the time period of 20 years of litigation, the wife never sought maintenance but now claimed the same under the Hindu Adoptions and Maintenance Act, 1956.
Bench cited the Supreme Court decision in Rohtas Singh v. Sant Ramendri, (2000) 3 SCC 180 and Swapan Kumar Banerjee v. State of West Bengal, 2019 SCC OnLine SC 1263, with respect to the status of the divorced wife.
High Court held that in view of the above-stated cases, the appellant would be entitled to the maintenance as per the Hindu Adoptions and Maintenance Act, 1956 as she was dependent on the deceased.
The Bench held that it cannot be said that the appellant was a divorced wife. Being a Hindu wife, the appellant has condoned all the misdeeds of the respondent and if her husband did not cohabit with her and has thereafter, started co-habiting with her, in that view of the matter, the decree of divorce both on merits and on cohabiting and condonation of misdeeds, if any, both by the husband and the wife, the decree is liable to be set aside.
The husband after 30.07.2018 had never came up before the Court to complain that she had again deserted him or what is the status of the matrimonial relations between them, which means he had also condoned misdeed of the appellant (wife), if any.
According to the Court, a case for setting aside the impugned decree of divorce was made out.
Hence the divorce decree was set aside. The earlier order of the High Court which was sought to be modified was also set aside.[Jyotsna Verma v. Ashok Kumar, First Appeal No. 432 of 2009, decided on 10-03-2021]
Advocates before the Court:
Counsel for Appellant:- In-Person, Ms. Jyotsna Verma (In Person)
Counsel for Respondent:- B. D. Mishra, Syed Fahim Ahmed