Spouse who has challenged the divorce decree and has not accepted everlasting upkeep below U/S 25 Hindu Marriage Act can apply for upkeep below U/S 125 CrPC: Allahabad HC

The Allahabad High Court recently granted the application for spousal maintenance under Section 125 of the CrPC, despite the Family Court’s granting of the divorce judgment, while noting that an appeal against the said judgment was pending before the court and this was not achieved Finality.

Judge Syed Aftab Husain Rizvi dismissed the husband’s claim that a divorced wife could not claim maintenance under Section 125 CrPC. It also rejected the argument that alimony could not be granted under CrPC as the family court had awarded permanent alimony under Section 25 of the Hindu Marriage Act. it observed

“IIt is clear that OP #2 (wife) did not accept the alimony payment as she challenged the divorce decree on appeal and the appeal is pending and she cannot accept the alimony payment under the circumstances. So it cannot be said that she has sufficient financial means as her permanent maintenance has been awarded. At present she has no source of income and no financial support to support her and falls into the category of destitute.”

Also Read: U/s 125 CrPC Maintenance Application Filed by Wife Granted Permanent Alimony Under U/s 25 Hindu Marriage Act Cannot Be Maintained: SC

The court considered an appeal filed by the husband against the judgment and order of the Family Court, in which the court lacs Rs. 25 as perpetual maintenance under Section 25 of the Hindu Marriage Act, while passing the divorce judgment in favor of the husband under Section 13 of the Hindu Marriage Act will.

Counsel for counterparty #2 (wife) stated that she had not accepted the alimony and that it was before the court, stating that accepting the alimony was tantamount to accepting the divorce decree. It has also been alleged that Counterparty No. 2 has never filed or filed an application for permanent alimony under U/s 25 of the Hindu Marriage Act and the court granted them of its own volition.

Results

At the outset, the court found that in the present case the divorce petition was filed by the husband. It is contested by the wife, who preferred an appeal and also did not accept the alimony filed with the Court of Appeals.

It then referred to the Rajnesh Vs. Neha case, where the Supreme Court issued guidance on the payment of alimony in matrimonial matters and found that a wife can claim alimony under various laws.

It then referred to the case of Rohtash Singh vs Ramendri [(2000) 3 SCC 180]where the Apex Court held that the divorced wife is entitled to maintenance if she is unable to support herself and if she has not remarried.

Applying the above legal basis to the facts of the case, the court held that the wife clearly did not accept the alimony as she challenged the pending divorce decree.

In view of the specific facts and circumstances of the case, the court determined that the order under appeal was not defective by defect or illegality and therefore dismissed the criminal appeal.

Case Title: Tarun Pandit vs. State of UP and Others

Citation:

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