Wife Can Claim Alimony If Husband Creates Situation Of No Return: Court

The mere existence of a judicial order asking a wife to restore the conjugal relationship with her husband does not disentitle her from claiming maintenance under the criminal law if he has created such circumstances that she cannot stay with him, the Delhi High Court has said.

The court observed that judges should keep in mind the need to give a dignified existence to those who need to be maintained by the persons bound to maintain them under the law as well as the objective behind Section 125 Criminal Procedure Code (CrPC) which provides for maintenance to wives in certain circumstances.

The court also emphasised that every case concerning maintenance "cannot be painted and penned with the same stroke of a brush and pen" and the courts concerned have to be "sensitive and cautious".

The court's observations were made on a petition by a woman against a trial court order which held that she was not entitled to claim maintenance under section 125 CrPC in view of a civil court order granting ex-parte decree of restitution of conjugal rights against her.

Stating that the view of the trial court was "incorrect", Justice Swarana Kanta Sharma observed that an ex-parte decree for restitution of conjugal rights is not an absolute bar for consideration of granting maintenance under the criminal law and if the court concerned is satisfied with the basis of evidence that the wife had justifiable grounds to stay away from the husband, maintenance can be granted.

"The mere presence of a decree of restitution of conjugal rights against the wife does not disentitle her to claim maintenance if the conduct of the husband is such as to ensure that she is unable to obey such a decree or it was the husband who had created such circumstances that she could not stay with him," the court said in an order released earlier this month.

Considering that the plea for maintenance by the petitioner was filed in 2009, the court also remarked that the present case "itself tells a story as to how a claim for maintenance became a battle for maintenance as it extended to nine long years before several courts" and highlights "the need for sensitization to dispose of such cases at the earliest".

The court noted that the petitioner had produced evidence before the trial court to contend that she had "every reason to stay away from the husband as there was a risk to her life" and therefore the trial court should have decided the issue of maintenance based on that evidence but the same did not happen.

"If the evidence on record shows that due to husband's conduct the wife has not been able to live with him and he has denied to maintain her and the minor children, maintenance cannot be refused to her," the judge said.

"The conduct of the husband of cruelty and attributing immorality to his wife and even questioning the paternity of the children born from the wedlock would justify her to live separately and claim maintenance. With this background when this court examines the facts of the present case as to whether she was entitled to maintenance or not, the answer has to be affirmative," the court stated.

While asking the trial court to consider the matter afresh, the court added: "Judges dealing with such cases should keep in mind the objective behind Section 125 Cr.P.C and the need to give a dignified existence to people who need to be maintained lawfully by the persons bound by law to maintain them expeditiously and with sensitivity".

"The canvas of every individual's life portrayed in every case is not similar and therefore every judgement though filed under the same section cannot be painted and penned with the same stroke of a brush and pen. Every case and every life portrayed therein needs to be dealt with according to the circumstances of that case," the court said.

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