Case Note & Summary
The applicant, Sau. Alka w/o Hemraj Khode, filed a criminal revision application under Section 19(4) of the Family Courts Act, 1984, aggrieved by the judgment dated 21-2-2017 in Petition No. E-489/2013, whereby the Family Court dismissed her application for maintenance under Section 125 of the Code of Criminal Procedure, 1973. The applicant married the non-applicant, Hemraj S/o Keshaoraoji Khode, on 31-3-2009. Due to differences, the non-applicant filed a divorce petition on 17-6-2010 under Sections 13(1)(ia), 12(1)(a), and 13(1)(iii) of the Hindu Marriage Act, 1955. The parties led evidence, and on 4-2-2013, the divorce petition was dismissed. An appeal against that dismissal is pending. On 26-9-2013, the applicant filed a maintenance application under Section 125 CrPC, which was opposed. The Family Court held that the applicant proved the non-applicant had sufficient income to maintain her and that she had no source of income. However, the court dismissed the application on the ground that the applicant was not interested in residing with the non-applicant and had not given any notice for restitution of conjugal rights. The High Court noted that the non-applicant did not contest the revision despite service. The court found that the Family Court erred in law by not considering whether the wife had a valid reason to live separately. The court held that the wife's refusal to live with the husband must be justified, and the Family Court should have examined the conduct of the parties and the reasons for separation. The High Court set aside the impugned judgment and remanded the matter to the Family Court for fresh consideration, directing the Family Court to decide the maintenance application afresh after giving both parties an opportunity to be heard.
Headnote
A) Family Law - Maintenance under Section 125 CrPC - Wife's Right to Maintenance - The Family Court dismissed the wife's maintenance application solely on the ground that she was not willing to reside with the husband and had not given notice for restitution of conjugal rights, despite finding that the husband had sufficient income and the wife had no income. The High Court held that the Family Court erred in law as the wife's refusal to live with the husband must be justified, and the court must consider whether there is a valid reason for separate residence. The matter was remanded for fresh consideration. (Paras 1-7) B) Family Law - Maintenance under Section 125 CrPC - Justified Refusal to Live with Husband - The High Court observed that the Family Court did not examine whether the wife had a valid reason to live separately from the husband, especially since the husband's divorce petition had been dismissed. The court must consider the conduct of the parties and the reasons for separation before denying maintenance. (Paras 4-6)
Issue of Consideration
Whether the Family Court was justified in dismissing the wife's application for maintenance under Section 125 CrPC on the ground that she was not willing to reside with the husband and had not given any notice for restitution of conjugal rights.
Final Decision
The High Court allowed the criminal revision application, set aside the impugned judgment dated 21-2-2017 passed by the Family Court, and remanded the matter to the Family Court for fresh consideration. The Family Court was directed to decide the maintenance application afresh after giving both parties an opportunity to be heard.
Law Points
- Maintenance under Section 125 CrPC is not dependent on wife's willingness to reside with husband
- wife's refusal to live with husband must be justified
- Family Court cannot deny maintenance solely on ground of no notice for restitution of conjugal rights
