Divorce Granted On Grounds Of Desertion, Cruelty Would Not Absolve Husband Of His Duty To Pay Maintenance- Bombay HC
The Bombay High Court at Nagpur Bench upheld the order of the Family Court granting maintenance to the woman, whose husband contended that his wife was not entitled to maintenance as the divorce had been granted on the ground of desertion and cruelty.
The Bench of Justice G.A. Sanap observed that “merely because of the decree of divorce on the ground of desertion and cruelty, the husband would not be absolved of his duty to pay the maintenance to the wife under Section 125 of the Cr.PC.”
The Bench rejecting the husbands' argument that the wife left the matrimonial home without sufficient cause, noted that the husband had dropped his wife off to her parents and that a notice was also issued by the wife to resume cohabitation, but the husband never made serious efforts to fetch her back.
“the withdrawal of the petition for restitution of conjugal rights cannot be used against the petitioner No.1 to deny her the maintenance. The only inference in the backdrop of the above facts possible is that after all these efforts and settlement, she might have seen no change in the behaviour and attitude of the respondent and her mother and, therefore, she would have lost all the hopes to join and continue the company of the respondent.” observed the Court.
Advocate S.M. Bhangde appeared for the petitioner-husband and Advocate P.S. Tiwari appeared for the respondent-wife.
The Criminal Revision had been preferred by the husband-original respondent against the order of the Family Court whereby monthly maintenance to the tune of Rs. 7000/-each was awarded to the wife-original petitioner no.1 and to petitioner no. 2 his minor daughter.
The Court relied upon the decision of the Apex Court in the case of Rohtash Singh Vs. Ramendri (Smt.) and Others (2000) 3 SCC 180 and observed that “the decree of divorce granted on the ground of desertion in favor of the husband cannot be treated as a bar to the wife to claim the maintenance from the husband as a divorced woman.”
The Court further noted that the husband was employed in the Railways and had no other dependents than the petitioners and was well qualified with a salary of Rs. 45,000/- to Rs. 46,000/- per month and that he did not rebut her contentions regarding his liability to maintain her and her daughter and their inability to maintain themselves.
“The perusal of the affidavit of examination-in-chief of the respondent would show that he has not adduced evidence in rebuttal, to deny the claim of the maintenance made by the petitioner No.1 and petitioner No.2, his monthly income and the source of income of the petitioner No.1. In my view, therefore, this document would be evidence without pleading.” said the Court.
Therefore, the Court held that the wife, having not married again, was entitled to maintenance as a divorced woman and the amount of maintenance granted by the Family Court was just and reasonable.
Accordingly, the revision petition was dismissed.
Cause Title- Amit v. Rita