Whether Divorced Wife is Entitled to get Maintenance from Former Husband [Case Law]

Criminal Procedure Code, 1973 - Section 125(1) - Even a divorced wife is entitled to get maintenance from her husband.

2018 (2) KLT 503 : 2018 (2) KHC 824

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANNIE JOHN, J.

R.P.(F.C.).No.162 of 2018

Dated this the 13th day of April, 2018

AGAINST THE ORDER IN MC 87/2016 of FAMILY COURT, TRIVANDRUM DATED 06-03-2017 

PETITIONER/ PETITIONER

DEEPAK K.

BY ADVS.SRI.R.PARTHASARATHY SMT.SEEMA 

RESPONDENT/ PETITIONER

VEENA SEKHAR

R1 BY ADV. SRI.D.AJITHKUMAR 

J U D G M E N T

The Revision Petitioner is the respondent in M.C.No.87/2016 before the Family Court, Thiruvananthapuram filed by the respondent herein claiming maintenance under Section 125(1) of the Criminal Procedure Code. The parties got married on 22.01.2012 in accordance with the custom of their community. While they were living at the residence of the revision petitioner, she was subjected to mental and physical cruelty. Respondent had also threatened to commit suicide. Due to the unusual behaviour of the respondent, the revision petitioner took her to the parental home and the same was done only after giving intimation to the Ollur Police Station. Thereafter the revision petitioner filed O.P.No.210/2013 before the Family Court, Thrissur for dissolution of marriage on the ground of cruelty. Inspite of summon being sent to the respondent, she did not care to contest the original petition. Thus the ex parte decree was passed on 29.05.2013. Thereafter the revision petitioner remarried on 28.08.2014 and he is having a daughter in the said wedlock. The revision petitioner was forced to leave the respondent in her parental house because of the unusual behaviour of the respondent. The respondent is employed in a jewellery shop at the time of marriage. She is earning income for her livelihood. The revision petitioner earns only Rs.12,000/- per month and out of which he has to maintain his parents as well as his wife and child. Without looking into all this aspects, the court below ordered an award of Rs.4,000/- per month to the respondent. Aggrieved by the order passed by the Family Court, Thiruvananthapuram, the present revision petition has been filed. Respondent signed notice and service completed and Adv.D. Ajithkumar entered appearance for the respondent.

2. Heard both sides.

3. The Family Court, Thiruvananthapuram has passed an order on 6th March, 2017 in M./C.No.87/2016, granting Rs.4,000/- per month as maintenance to the respondent from the date of filing of the petition i.e. 02.03.2016. This petition has been filed under section 125(1) of the Cr.P.C. PW1 was examined on the side of the petitioner. CPW1 was examined and marked Exts.B1 to B3 on the side of the respondent. Petitioner's wife, who is the respondent herein has filed the present petition for getting maintenance under section 125 (1) of the Cr.P.C. stating that the revision petitioner has wilfully refused and neglected to maintain her. It is an admitted fact that the revision petitioner has got married after getting divorce from the respondent on 28.08.2014 and he is having a daughter in the said wedlock. He is unable to provide maintenance to the respondent. He has no case that respondent got remarried. Suppose the respondent is again married, the petitioner is exempted from paying maintenance. Ext.B1 is the order in O.P.No.210/2013 dated 29.05.2013 and Ext.B2 is the copy of the petition in O.P.No.210/2013 dated 06.02.2013 filed by the respondent. It is also borne out that an ex parte decree was granted by the Family Court, Thrissur and accordingly the petitioner has obtained ex parte decree against the revision petitioner. The respondent was examined as PW1 inorder to give evidence to prove that petitioner is presently earning income and he is working as a salesman in Nakshtra Gold & Diamonds, Perumbavoor and he is getting Rs.25,000/- per month. CPW1's case is that he is getting only Rs.12,000/- per month.

4. Therefore, there is no necessity to enquire further regarding the capability of the revision petitioner to give maintenance to the respondent. As per the law, even the divorced wife is entitled to get maintenance from her husband. Now the only arguments advanced by the petitioner's counsel is that the petitioner is only getting Rs.12,000/- per month as income and he is not able to give Rs.4,000/- as maintenance to the respondent and it is highly an exorbitant amount and he is having his present wife and child.

5. Any way on going through the arguments and the evidence, I find that Rs.4,000/- which was granted by the Family Court, Trivandrum is too meagre. In Shamima Farooqui v. Shahid Khan [2015 (5) SCC 705], it was held that “the wife has absolute right of maintenance and the husband is not absolved from his obligation to provide maintenance merely on his plea of financial constraints, so long as he is healthy, able-bodied and capable of earning for his own support”.

It is further held that “sustenance does not mean bare survival, that it gains more weightage when children are also with wife and that the quantum should be adequate so as to enable wife to live with dignity similar to standard with which she would have lived in her matrimonial home”. 

Inorder to consider the maintenance, the court has to consider the status of the couples and even though the respondent is divorced from the petitioner, she is entitled to live as the status of the petitioner. Therefore, after considering all these facts, the Family Court, Trivandrum has granted Rs.4,000/- per month to the petitioner and I do not find any ground to interfere with the order passed by the court below and the petitioner is bound to give @Rs.4,000/- to the respondent till the respondent get remarried.

In the result, this RP(FC) is dismissed.