Wife has right to maintenance, even if withdraws divorce petition: Karnataka High Court


The Karnataka High Court has dismissed the petition saying that maintenance under Section 125 CrPC is a matter of right to a neglected wife, even in cases where she withdraws the petition seeking divorce.

A Single Bench of Justice M. Nagaprasanna said that the order of the Trial Court on an application filed by the wife under Section 125(1) CrPC cannot be taken exception merely because the petitioner is ready and willing to take her back. So long as the respondent remains the wife, it is the duty of the petitioner to maintain his wife.

The petitioner challenging the order dated 11-07-2022 passed in Criminal Miscellaneous pending before the Additional Principal family Judge, Mysore in an application filed under Section 125(1) of the CrPC.

The facts that lead the petitioner to the Court in the subject petition, are as follows:-

The petitioner aged 66 years old and the respondent aged 60 years old got married on 13-03-2020 when they were 64 and 58 years old respectively.

The averments in the petition are that the petitioner was wanting a companion and the respondent, a divorcee was also wanting a companionship and accordingly by mutual consent got married. On 29-04-2020 the innings of the couple began and on 29-05-2020 the respondent deserted the petitioner and left the matrimonial home. After leaving the matrimonial home after staying for one month, the respondent institutes two proceedings – one seeking divorce from the hands of the petitioner and the other under Section 125 of the CrPC seeking maintenance.

It appears that the petition seeking divorce was withdrawn by the complainant. The criminal miscellaneous petition so filed seeking maintenance is considered on an application filed under Section 125(1) of the CrPC and an order is passed directing payment of interim maintenance of Rs 7,000/- per month from the date of the application till disposal of the petition. The petitioner challenges the said order before the Court in the subject petition.

The counsel appearing for the petitioner submitted that interim maintenance is to be paid to a wife who has been neglected and deserted by the husband, but even as on date the petitioner is ready and willing to welcome the respondent back and lead a happy married life as both of them got married only for companionship and submit that despite these submissions interim maintenance is granted by the trial Court and the divorce case filed is also withdrawn by the respondent.

On the other hand, the respondent refute the submissions to contend that though she stayed for a month with the petitioner it becomes impossible for her to live with him as he was constantly harassing the respondent/wife and therefore, a notice was caused upon the petitioner prior to registration of the claim for divorce which was also replied to by the petitioner. The affidavit on assets and liabilities of the respondent is also filed before the concerned Court as is necessary in law.

Therefore, the counsel for the respondent submitted that the subject petition be dismissed and interim maintenance so awarded be confirmed.

The Court noted that the factum of marriage between the petitioner and the respondent on 13-03-2020 is not in dispute and the wife/ respondent begins to live with the petitioner on 29-04-2020 and leaves the matrimonial house a month thereafter is also not in dispute. The allegation of the wife is constant torture from the hands of the husband and therefore she has left the house.

The Court said that,

Both the proceedings are instituted by the wife against the petitioner – one seeking divorce and the other seeking maintenance in Criminal Miscellaneous. The divorce petition being withdrawn by the wife is of no avail as the wife is still in the matrimonial fold with the husband. So long as the respondent remains a legally wedded wife of the petitioner and the fact that she has been deserted by the husband, interim maintenance is a matter of right to the wife.

The order of the trial Court on an application filed by the wife under Section 125(1) CrPC cannot be taken exception merely because the petitioner is ready and willing to take her back. If that be so, the petitioner could have preferred a petition for restitution conjugal rights, which he has not preferred till date. So long as the respondent remains the wife, it is the duty of the petitioner to maintain his wife.

Any other interpretation that the counsel for the petitioner would seek to render to the provision i.e, Section 125 of the CrPC or the order passed by the concerned Court answering the application under Section 125(1) of the CrPC would defeat the object of the provision itself. The petitioner has not placed on record his assets or liabilities. The amount of maintenance awarded is Rs 7,000/-. The Court while awarding such maintenance has taken note of the fact that the petitioner and the respondent both are senior citizens.

"A perusal at the reason so rendered would demonstrate application of mind on the part of the Judge to the issue before him and by balancing the right of both the petitioner and the respondent has awarded a sum of Rs 7,000/- to be paid to the respondent as interim maintenance. The reasons rendered are cogent and coherent, which would not call for any interference at the hands of the Court", the Court said, while dismissing the petition.