Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA? All HC decides

Allahabad High Court: Syed Aftab Husain Rizvi, J., addressed a revision petition filed by the husband who claimed that the Family Court could not have granted maintenance to wife under Section 125 CrPC when divorce was already granted in his favour under Section 13 of Hindu Marriage Act.

Instant criminal revision was directed against the decision of the Family Court. By the said impugned order, maintenance application under Section 125 CrPC of OP 2 was allowed and a maintenance amount of Rs 25,000 was awarded.

OP 2 submitted that she was mentally and physically tortured and later was left at her maternal house with her father. Opposite Party started ignoring her and not maintaining her, in fact deserted her. Further, she added that she had no source of income while the opposite party was Squadron Leader in Air Force, and his salary was Rs 80,000 per month. Hence, OP 2 had claimed a maintenance allowance of Rs 40,000.

Jurisdiction

High Court stated that, an application under Section 125 CrPC can be moved at a place where the applicant was temporarily residing. It had been alleged in counter affidavit that applicant was temporarily residing at Gautam Budh Nagar and pursuing a course in J.P. Institute of Information Technology at Gautam Budh Nagar. Hence, the ground that Court at Gautam Budh Nagar lacked jurisdiction had no force.

Permanent Alimony

The revisionist husband contended that Family Court, Meerut in divorce petition under Section 13 of Hindu Marriage Act had granted divorce decree in favour of the revisionist and had also awarded Rs 25 lacs as permanent alimony under Section 25 of the Hindu Marriage Act while passing the decree of divorce and hence, no maintenance under Section 125 CrPC could be awarded and application was not maintainable.

Hence, OP 2 had Rs 25 lakhs at her disposal and it could not be said that there were no financial resources and there was no question of non-sustenance.

The Court below lost its sight in not considering the legal proposition that a divorced wife can claim maintenance under Section 25 of the Hindu Marriage Act and not under Section 125 CrPC. 

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

It is only such court which passed the divorce decree who is alone competent to grant maintenance under Section 25 of the Hindu Marriage Act.

Therefore, the impugned order was absolutely illegal, arbitrary and against the said principles of law.

As per the Supreme Court’s decision in Rajnesh v. Neha, (2021) 2 SCC 324, a wife can make a claim for maintenance under different statutes and there was no bar to seek maintenance both under the protection of Women against Domestic Violence Act, 2005 and Section 125 of CrPC or under Hindu Marriage Act.

Bench noted that, in the present set of facts, it was clear that the wife did not accept the alimony as she had challenged the divorce decree and the same was pending and in those circumstances, she could not have accepted the amount of alimony.

In view of the above, she had no source of income and financial support to maintain her and hence came under the category of destitute. Therefore, the impugned order did not suffer from any illegality or infirmity.

Since no infirmity was found in the order of the Court below, the revision was liable to be dismissed. [Tarun Pandit v. State of U.P., 2022 SCC OnLine All 38, decided on 6-1-2022]


Advocates before the Court:

Counsel for Revisionist:- Amit Krishna

Counsel for Opposite Party :- G.A., Siddharth Khare

One comment

  • Please provide original order so that we may have it for general filing etc

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