Calcutta High court : Wife is entitled for maintenance even if she unilaterally divorces her husband
July 5, 2021 Kolkatta , West Bengal
On Thursday, the Calcutta High Court made a judgement that the divorced wife is entitled for the maintenance under Section 125 of the Code of Criminal Procedure (Cr PC) even if the divorce has been unilaterally initiated by her.
In the case of Rehena Khatoon vs Jargis Hossain, the petitioner challenged an order dated of 18th November, 2017 passed by the Additional Sessions Judge, 5th Court, Murshidabad , the maintenance under the Section 125 of the Criminal Procedure code has been denied to the petitioner.
The Additional Sessions Judge rejected the plea for maintenance on the grounds that the petitioner had herself unilaterally granted divorce to the respondent i.e. her husband. Thus, she could not be considered as she '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 with the third person , such a claim for maintenance could not be granted to her.
The Learned Magistrate has also observed that the conduct of wife was not inspiring and she was not considered as the wilful neglect was on part of her husband so as to maintain herself was not being proved, as for the same maintenance that was in her favour was denied.
The Court does not found any interference that would be required regarding such observation. This Court concurs with the observation of the Court below that the wife who voluntarily granted talak is not entitled to claim maintenance from her husband as because they do not found any violent act or cruelty through which the opposite party has perpetrated upon the revision to compel her to leave the Matrimonial home , the Additional Sessions Judge observed.
Justice Bibek Chaudhuri noticed that the inherent power of the High Court as envisaged under Section 482 of the Criminal Procedure Code , the High Court could rectify any wrong committed by the Trial Court as well as the Revision Court. The illegality was reflected in the impugned order, Justice Chaudhuri observed.
The Learned Trial Judge committed the illegality when she held that a divorced wife is not entitled to get maintenance. The petitioner moved the case in revision where the redressal of the said wrong but she was again wronged by the Learned Revisional Court on the grounds that the petitioner was allegedly found in the compromising situation with a third person by the opposite party and in accordance with she was not dutiful with her husband.
The High Court observed that the law was absolutely settled to that 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 has not made any determination as to whether the petitioner had the means to maintain herself independently.
Therefore, 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.