SUPREME COURT TO EXAMINE IF A HUSBAND WHO OBTAINED A DECREE OF RESTITUTION OF CONJUGAL RIGHTS LIABLE TO MAINTAIN WIFE?

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The Supreme Court will now examine the issue whether a husband who has acquired a decree of restitution of conjugal rights is still liable to maintain his wife who filed a petition of seeking maintenance under section 125 of Code of Criminal Procedure.

In the special leave petition provocation an order passed by the Allahabad High Court, it was contended by the husband that the filings in the proceedings under Section 9 of the Hindu Marriage Act, 1955 are that the wife is staying away from the matrimonial home without any adequate reason.

While issuing notice in Subrat Kumar Sen v. State of UP, the bench comprising Justice Sanjay Kishan Kaul and Justice KM Joseph said:

“We are faced with the scenario where there are conflicting views taken by the courts in proceedings under Section 125 Code of Criminal Procedure and under Section 9 of the Hindu Marriage Act and the impugned order of the High Court in the Revision Petition does not really add to the discussion.”

The impugned judgement by the Allahabad High Court is a brief one and does not address the legal issue at all.

In a related issue, recently the Supreme Court had reiterated that a wife, who has been divorced on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.

There are conflicting rulings by High Courts on the issue of pass ability of Section 125 of the Code of Criminal Procedure petition when there is a decree of restitution of conjugal rights in favour of husband. The judgement in this case might settle the conflict in this matter.

Conflicting Views by Various High Courts on this matter:

One important judgement which elaborately deal with the issue is that by a division bench of Punjab and Haryana High Court in Ravi Kumar v. Santosh Kumar, 1997 (3) RCR (Criminal). It was held:

  • the wife against who a decree of restitution of conjugal rights has been passed by the Civil Court, shall not be entitled to claim allowance under Section 125 of the Code of Criminal Procedure if in the proceedings of restitution of conjugal rights before the Civil Court, a specific issue has been framed that whether without sufficient reason, the wife refuses to live with the husband, and the parties have been given an opportunity to lead evidence and thereafter specific findings are recorded by the Civil Court on this issue
  • But in the case of the husband has got an ex-parte decree of restitution of conjugal rights from the Civil Court, such decree shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125 of the Code of Criminal Procedure.
  • In case the decree for restitution of conjugal rights has been obtained by the husband subsequent to the order for maintenance passed by the Magistrate under Section 125, Code of Criminal Procedure then the decree ipso facto, shall not disentitle the wife to her right of maintenance and in that case, the husband will have to approach the Court of Magistrate under Sub-Section (5) of Section 125 of the Code of Criminal Procedure for cancelling the order granting maintenance under Section 125, Code of Criminal Procedure.
  • The wife, against whom decree of restitution of conjugal rights in the manner indicated in our first conclusion has been passed, will get the right to claim maintenance from the husband with effect from the date when she is granted divorce and she will continue getting this maintenance till she re-marries.

The same view is seen reflected in Girishbhai Babubhai Raja v. Hansaben Girishchandra 1986 (1) Gujarat Law Reporter 630, which held that the decree passed by the Civil Court was binding on the Criminal Court and the same issue could not be tried once again by the Magistrate under Section 125 of the Code of Criminal Procedure.

The Himachal Pradesh High Court, in Hem Raj v. Urmila Devi, has held that, once a Civil Court has found in a contested proceeding on the basis of evidence that the wife had no just or reasonable cause to withdraw her society from the husband, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure. Distinguishing this judgement, the Kerala High Court in Haizaz Pashaw v. Gulzar Banu, has held  that the ex parte decree for restitution of conjugal rights obtained by the petitioner against the his wife is not an absolute bar to the consideration of the petition under Section 125 Code of Criminal Procedure.

On the contrary, in Babulal v. Sunita, a single bench of Madhya Pradesh High Court has held that, in the absence of any statutory bar, the wife’s application for maintenance under that section cannot be rejected merely because the husband had obtained a decree of restitution o of conjugal rights against her and she declined to comply with it.

By-

NANDINI SHARMA

STUDENT REPORTER, INBA