The Bombay High Court at Nagpur Bench while dealing with a case under Section 125 of the Code of the Criminal Procedure Code held that a husband is liable to pay the maintenance to the estranged wife even if he has made attempts to cohabit with her.

The Court said that the application for maintenance had several grounds that justify the wife and children to stay away from the applicant i.e., the husband.

A Single Bench of Justice Bharati Dangre said, “Section 125(4) of the Cr.P.C. dis-entitled a claimant to claim maintenance under this section if she is living in adultery, or if, without any sufficient reason, refuses to live with her husband, or if they are living separately by mutual consent. None of the above ingredients are established by the applicant-husband as merely saying that he was and is always ready and willing to cohabit is not sufficient ground to absolve himself of the liability to pay maintenance by projecting that without any sufficient reason wife has left his company.”

The Bench was not at all convinced with the argument of the counsel for the applicant that sub-section (4) of Section 125 is applicable in this case.

“Since the husband has not disputed his liability towards the amount of maintenance as well as educational expenses, it is morale and legal responsibility to maintain a wife who is unable to maintain herself. In these circumstances, I do not find any legal lacuna in the judgment of Family Court directing the applicant-husband to pay maintenance of Rs.8,000/- per month to his wife”, the Court further observed.

Advocate R.R. Vyas appeared for the applicant/husband while Advocate I.A. Fidvi appeared for the non-applicants.

In this case, the order passed by the Family Court on an application filed by the wife and the children under Section 125 of the CrPC was assailed in the revision application filed by the husband. The non-applicant i.e., the wife along with her two minor children approached the Family Court by filing an application claiming maintenance of Rs. 39,000/- per month to maintain herself as well as her two minor children.

The amount was claimed in the backdrop of contention that she was unable to maintain herself and her children and their requirement demanded that an amount of Rs.7,000/- per month shall be paid for her children, whereas she should be paid an amount of Rs. 20,000/- per month. The Family Court awarded maintenance of Rs. 8,000/- per month to the wife and Rs. 5,000/- to the minor children.

The High Court after hearing the contentions of both the counsel asserted, “I am unable to accept the said submission of the learned counsel for the applicant, after hearing learned counsel for the non-applicant-wife and on perusal of the application filed before the J.M.F.C. Bhandara claiming maintenance under Section 125.”

The Court also noted that the wife faced mental and physical torture by the husband when she was in cohabitation with him and hence took shelter with her parents.

“Considering the fact that the wife was unable to maintain herself and it is not the case of the applicant-husband that the wife has her independent earnings, particularly by making reference to the gala/shops owned by the non-applicant No.1’s father which has been turned down on the ground that has not connected with her when the wife is claiming maintenance to maintain herself and her minor children. … even if he is in financial distressful condition, he cannot avoid to maintain his wife as well as his children”, the Court said.

The Court further directed the applicant to obey the order passed by the Family Court and clear all the arrears by March 31, 2023.

Accordingly, the Court dismissed the revision application and upheld the order of the Family Court.

Cause Title- Mudassir s/o. Yousuf Khan v. Shirin w/o. Mudassir Khan and others

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Bombay HCJustice Bharati DangreMaintenanceSection 125 of Cr.PC

Swasti Chaturvedi