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Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     06 November 2011

Supreme court: "no alimony for woman who desert husband"

 

Supreme Court of India: ‘No alimony for woman who desert husband’

New Delhi, Nov 18

In an observation with far-reaching implications, the Supreme Court has said that a woman who deserted her husband and the matrimonial home and refused to return despite repeated requests was not entitled to maintenance.

Upholding a decision of the Punjab and Haryana High Court, a bench headed by Justice V S Sirpurkar said the law of the land did not allow maintenance in cases where the wife deserted her husband, children and the matrimonial home.

In the case before the Punjab and Haryana High Court, Poonam, who was married to Mahender Kumar of Jind on January 23, 1992, left her matrimonial home on March 18, 1998, alleging harassment and dowry demands. She also left her children.

Poonam later moved the family court, seeking divorce on grounds of cruelty. But Mahender Kumar filed an application before the court on February 20, 2002, praying for restoration of conjugal rights under the Hindu Marriage Act.

She did not respond to the application, and Kumar was granted ex parte decree as it was construed that Poonam would not return to her matrimonial home.

Fresh appeal

Two years later, Poonam approached the family court again, seeking divorce — on the ground that she was living separately — and demanding maintenance.

Though the court granted her divorce, her appeal for maintenance was turned down.

The Supreme Court bench said: “You left the matrimonial home on your own, and now you want maintenance. Is this the law of the country? What is the justification for your staying separately?”

No ill-treatment

When the case reached the Supreme Court, Poonam challenged the Punjab and Haryana High Court’s decision, seeking maintenance of4,000 per month from Mahender.

The high court judgment said she had failed to prove that she was ill-treated by her former husband.

Additionally, the court observed: “Failure of the petitioner-wife to justify her decision to stay away from the respondent-husband and two kids shows that she had left society of the respondent on her own accord.”

 



Learning

 17 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     06 November 2011

very good citation for all the husbands who have their cases in court. Put your mind properly to take benefit of this SC order.

pratik (self working)     06 November 2011

good decision by the SC.

sridhar pasumarthy (ADVOCATE)     06 November 2011

can you mention the citation.

N.K.Assumi (Advocate)     06 November 2011

 

SC- 'No alimony for woman who desert husband'

 
Here is the full text of the Punjab & Haryana HC judgment upheld by SC 

IN THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM   …PETITIONER

VERSUS

MAHENDER KUMAR   …RESPONDENT


Criminal Misc. No.M-24684 of 2008 (O&M)


Present:           Mr.P.L. Goyal,  Advocate,  for the  petitioner.

                       Mr. S.D. Bansal,  Advocate, for the  respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code') claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the  same  time,   affirming  the  finding    recorded    by  the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and  have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only  in  getting maintenance allowance and  taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon'ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the  above,    the present petition   is  dismissed being  without any merit.

March  19  , 2009.  

(   MOHINDER  PAL )
ak    JUDGE

N.K.Assumi (Advocate)     06 November 2011

But Karnataka High Court has given alimony to the wife from two husbands. 

Tajobsindia (Senior Partner )     06 November 2011

 

 

Originally posted by :N.K.Assumi

"


But Karnataka High Court has given alimony to the wife from two husbands. 

"

ha ha

NO (the decision is reserved is what I mean here)



Simply put Jstc Patil of K'taka HC stirred (challenged) the underdog there i.e. husband's adv. by his "oral observation" remarking in Jstc Dhingra (D HC) style 'so what if earlier husband is paying alimony' !


It was for our ld. brother there to stir fry servicing legal reasoning before Jstc Patil sooner than later to disallow such remarks and also now take interest to dig whereabouts of wife's earlier husband address / whereabouts and file in Jstc Patil's Court 'perjury' case on ex husband behalf for FREE :-)


But then who walks extra mile to reach to his kitchen when a cuppa Irish Coffee each early morning stimulates call of nature to many of us :-)


However what Bhaskar put before us and what your observation in K’taka HC ongoing case are on different footings as K’taka case is not about what Bhaskar says and or what Poonam’s case fortifies………….

 

N.K.Assumi (Advocate)     06 November 2011

I hope the KHC Judgment  which has been fully discussed and argued in the forum, will be in the line of  SC Judgment of Smt.Rohtash Singh of 2000.

Rajeev Kumar (Lawyer/Advocate)     06 November 2011

Its really a nice observation by supremecourt

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     06 November 2011

Assumi Ji,

What is in the SC Judgment of Smt.Rohtash Singh of 2000.Please provide if possible.

 

Tx
 

N.K.Assumi (Advocate)     07 November 2011

Already posted in the above given case.

N.K.Assumi (Advocate)     07 November 2011

 

Here is the Judgment:

The Hindu Marriage Act, 1955

The Code Of Criminal Procedure, 1973

Section 13 in The Hindu Marriage Act, 1955

Section 13 in The Code Of Criminal Procedure, 1973

Article 39 in The Constitution Of India 1949

Citedby 28 docs - [View All]

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Valsarajan vs Saraswathy on 23 January, 2003

Sadanandan.K vs Mepparamban Sreeja, D/O.Velu on 2 July, 2009

Nanisseri Mukundan, ... vs M.Usha, D/O.Kannan on 4 December, 2007

Sajeev Kumar, Aged 26 Years vs P.Dhanya, Aged 20 Years on 8 February, 2008

Supreme Court of India

 

Rohtash Singh vs Smt. Ramendri & Ors. on 2 March, 2000

Equivalent citations: AIR 2000 SC 952, 2000 (2) ALD Cri 15, 2000 CriLJ 1498

Author: S S Ahmad

Bench: S Ahmed, D Wadhwa

JUDGMENT

S. Saghir Ahmad, J.

1. This Special Leave Petition was dismissed by us on 10-9-1999. We, hereinbelow, give our reasons for dismissing the Special Leave Petition.

2. The petitioner who is a member of the Indian Army was married with the respondent on 10th of May, 1990. Since the petitioner was posted away from his home, he left the respondent with his parents living jointly with his elder brother and his family at the family house in Village Kota, Police Station Galaoti, Tehsil and District Meerut. This, according to the petitioner, was not liked by the respondent who Insisted that the petitioner should take leave from Army and stay with her at her parent's house. It is said that in 1991, the respondent left the petitioner's family house and went away to her father's house. She refused to come back to the family house of the petitioner in spite of petitioner's father and elder brother having gone to the respondent to persuade her to come back. On her refusal to come back, a notice was sent to the respondent on 5th of August, 1991 for restitution of conjugal rights but the respondent still did not come back to the petitioner's family house in District Meerut and, therefore, in 1993, the petitioner filed a petition under Section 13 of the Hindu Marriage Act for dissolution of (he marriage on the ground of desertion. The respondent in her defence raised various pleas including mal-treatment and cruelty as also a demand by the petitioner for a sum of Rs. 21,000/- and a scooter. It was pleaded by her that she was always prepaid to come back to the petitioner but she was ill treated by the petitioner's parents who used to lock her up in a room as the demand for a cash amount of Rs. 21.000/- and a scooter was not met by the respondent. The Family Court, Meerut, decreed the suit of the petitioner on 15th of July, 1995 and passed the decree of divorce on the ground of desertion by the respondent.

3. During the pendency of the suit for divorce, the respondent had filed an application for maintenance under Section 125 of the CrPC on 28th of May, 1993 which was allowed by the Family Court, Meerut on 13th of March, 1997 in spite of the fact that the judgment by which a decree for divorce was passed in favour of the petitioner on the ground of respondent's desertion was brought to the notice of the Family Court. The judgment passed by the Family Court, Meerut was challenged by the petitioner in a Revision filed in the High Court but the Revision was dismissed on 23rd of March, 1992. It is against this judgment that the present petition has been filed.

4. The principal contention raised by the learned Counsel for the petitioner is that a decree for divorce having been passed under Section 13 of the Hindu Marriage Act on the ground of desertion by the respondent, an order for maintenance could not have been passed in favour of the respondent on account of Sub-section (4) of Section 125, Cr. P.C.

5. Sub-section (4) of Section 125, Cr. P.C. provides as under:

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

6. Under this provision, a wife is not entitled to any Maintenance Allowance from her husband it she is living in adultery or If she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of section. 125, Cr. P.O. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now. adultery is the s*xual Intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the CrPC.

7. The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation 'to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. "Sufficient reasons" have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom' a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125, Cr. P.C. and how far can the plea, of desertion be treated to be an effective plea] in support of the husband's refusal to pay her the Maintenance Allowance.

8. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court) under Section 13 of the Hindu Marriage Act, the respondent continues to be "wife" within the meaning of Section 125, Cr. P.C. on account of Explanation (b) to Sub-section (1) which provides as under:

Explanation.- For the purposes of this Chapter-

(a) ...

(b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

9. On account of the Explanation quoted;' above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. This Court in Ramesh Chander Kaushal v. Mrs. Veena Kaushal . observed as under

9. This provision Is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts.

9A. Claim for maintenance under the first part of Section 125, Cr. P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to; Sub-section (1) of Section 125, Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125, Cr. P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See : Sukumar Dhibar v. Smt. Anjali Dasi 1983 Cri LJ 36 (Cal). The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position.

10. Learned Counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her.

11. Learned Counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125, Cr. P.C. was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, learned Counsel appears to be correct. But for that short period, we would not be Inclined to interfere.

12. It was for these reasons that the Special Leave Petition, being without merit, was dismissed on September 10, 1999.

 

dr.pawan rajyan (member and secretory)     07 November 2011

a landmark decision ,with which we can slap ,canine money seeker greedy wivies.

Goddy (Manager)     07 November 2011

How to prove that its wife who destered the home at her free will? Can she not claim that she was thrown out or some stupid reason?

What is ill-treatment/mental-torchure... how to prove that? Wife's parents alleging mental-torchure, but wife is happily going to office regularly and involved in high paying job!!

N.K.Assumi (Advocate)     07 November 2011

IF SHE WANTS TO ASSERT THAT IN THE COURT ITS HER DUTY TO PROVE IT.


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