December 07, 2017
Date of Judgment: December 06, 2017
In this recent case taken up by the Supreme Court yesterday the Court rejected High Court’s order whereby the Petitioner was disentitled from maintenance under Section 125 of the Code of Criminal Procedure, 1973 on the ground that the husband and wife had already judicially separated.
Background- In the case, the Petitioner had applied for maintenance under Section 125 of the Code of Criminal Procedure, 1973, wherein the Trial Court had awarded maintenance of Rs.4,000/- per month to the Petitioner.
Aggrieved by Trial Court’s award of maintenance, the Petitioner’s husband preferred revision petition in the High Court. By the impugned order the High Court observed that the Trial Court has not given the finding that the petitioner was unable to fend for herself, therefore, she was not entitled for maintenance.
The aggrieved Petitioner appealed in the Supreme Court. The Respondent in the case contended that there is already a decree of judicial separation and in view of Section 125(4) of the CrPC the petitioner was not entitled to any maintenance.
The Two-Judge Bench of Supreme Court in the case in view of the aforesaid contention categorically stated that the aforesaid view of the Respondent is rejected and opined that if a divorced wife is entitled for maintenance then there is no reason why a wife who is judicially separated is not entitled for maintenance.
Here it will be relevant to mention that Section 125(4) of the CrPC stated that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.
The Apex Court also stated that in the case the High Court should have enquired into the question whether the petitioner is entitled to maintenance or not and, if so, the quantum of maintenance and should have not rejected the Petitioner’s appeal merely because the Trial Court had not given a finding that the petitioner was not able to look after herself, therefore, she was not entitled for maintenance.
In view of the aforesaid, the Supreme Court has set aside High Court’s impugned order and has remanded the matter to the High Court for fresh consideration.
Also read Judicial Separation and Divorce in India.