The Calcutta High Court in its recent order dated June 24, 2021 ruled that a divorced wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure (CrPC) even if the divorce had been unilaterally initiated by her and until she gets remarried.
Both the lower courts had refused to grant maintenance in favour of the petitioner wife on the ground that she unilaterally granted divorce to her husband (talaq) and the conduct of the wife was not inspiring. Therefore, the orders stated that the husband of the petitioner was not entitled to pay maintenance to the petitioner wife. However, Calcutta High Court has overruled this order and allowed maintenance to woman.
In 2011, wife had filed for maintenance under Section 125 CrPC at 1st Court of the Learned Judicial Magistrate, Berhampore, Murshidabad. The learned Magistrate refused the prayer for maintenance for the petitioner but allowed the said prayer for the minor daughter of the parties.
The petitioner then challenged the said order by filing Criminal Revision in 2015 which was heard and disposed of by the Learned Additional Sessions Judge, 5th Court, Murshidabad affirming the order passed by the Learned Judicial Magistrate in November 2017.
The Additional Sessions Judge had rejected such a prayer for maintenance on the ground that the petitioner had herself unilaterally granted divorce to the respondent i.e. her husband. Thus, she could not be considered to be a ‘destitute’ as she had ‘wilfully neglected’ her husband. The Sessions Court had also reaffirmed the ruling that since the petitioner was allegedly found to be in a compromising position, such a claim for maintenance could not be granted to her. The Additional Sessions Judge had observed:
Learned Magistrate has observed that conduct of wife was not inspiring and she was not considered to be a destitute as wilful neglect on part of her husband so to maintain her was not being proved, for the same maintenance in her favour was denied. I do not find that any interference is required by this Court regarding such observation.
This Court concurs with the observation of the Court below that the revisionist/wife who voluntarily granted talaq is not entitled to claim maintenance from her husband as because I do not find any act of violence or cruelty that the opposite party has perpetrated upon the revisionist so to compel her to leave her matrimonial home.
The petitioner wife once again challenged this 2017 order whereby maintenance under Section 125 of the CrPC had been denied to her.
Calcutta High Court
Justice Bibek Chaudhuri noted that under the inherent power of the High Court as envisaged under Section 482 of the CrPC, the High Court could rectify any wrong committed by the Trial Court as well as the Revisional Court. Reflecting on the illegality of the impugned order, Justice Chaudhuri observed,
The Learned Trial Judge committed illegality when she held that a divorced wife is not entitled to get maintenance. The petitioner moved in revision for redressal of the said wrong but she was again wronged by the Learned Revisional Court on the ground that the petitioner was allegedly found in compromise situation with a third person by the opposite party and accordingly she was not dutiful to her husband.
The High Court also reiterated that the law is absolutely settled to the extent that a divorced wife shall always be entitled to maintenance till her remarriage if she is unable to maintain herself. It was also observed that the impugned order had not made any determination as to whether the petitioner had the means to maintain herself independently. Accordingly, the impugned order was set aside and the Sessions Court was directed to issue a new order on the basis of the facts and circumstances of the case.
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