The Allahabad High Court has ruled that a divorced wife is entitled to seek maintenance under Section 125 of the Code of Criminal Procedure (CrPC) from the date of dissolution of marriage, even if a decree of divorce was granted against her on the ground of desertion. Setting aside an order of the Family Court, Sultanpur that had dismissed her claim in its entirety, a single judge bench of Justice Ram Manohar Narayan Mishra held that while desertion may disentitle a wife to maintenance during the subsistence of marriage, she retains the status of a “wife” under Explanation (b) to Section 125(1) CrPC after divorce until she remarries or is capable of maintaining herself.
Background of the Case
The revisionist solemnized her marriage with the opposite party during childhood according to Hindu rites and rituals, and her gauna ceremony was performed nine years later. Following the ceremony, the husband secured employment in the EME Corps of the Indian Army as a Naik/Driver. A child was born from the wedlock.
The revisionist alleged that in 2007, the husband and his family members began subjecting her to cruelty and harassment while demanding additional dowry comprising Rs. 1,00,000 in cash, a motorcycle, and a colour television. She further alleged that on February 12, 2007, an attempt was made to set her ablaze, prompting complaints to police authorities. In 2008, the husband allegedly assaulted her, asserted that he had contracted a second marriage, and brought the second woman to his parental and in-laws’ residence while refusing to maintain the revisionist and her child.
In October 2008, the revisionist approached the Army Wives Welfare Association seeking maintenance. Subsequently, she initiated proceedings under Section 125 CrPC in 2009 before the Additional Chief Judicial Magistrate, Sultanpur, which was later transferred to the Family Court, Sultanpur and registered as Criminal Case No. 1304 of 2014.
In his written statement, the husband admitted the factum of marriage and gauna but contended that the revisionist had deserted him without reason and refused to reside at his parental home. He claimed that a compromise had been arrived at before the police on February 16, 2007, wherein she agreed not to leave his parental home without permission, yet she refused to return. He also stated that he had initiated proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Later, the husband instituted a divorce suit under Section 13 of the Hindu Marriage Act, which was decreed ex-parte on September 25, 2014, on the ground of desertion. The husband subsequently remarried and entered his second wife’s name in his army service records.
On December 22, 2018, the Principal Judge, Family Court, Sultanpur dismissed the revisionist’s application under Section 125 CrPC, holding that she had failed to prove sufficient and reasonable grounds for living separately and noting that 15% of the husband’s salary was being deducted through army authorities for maintenance. Aggrieved, the revisionist approached the High Court in revision.
Arguments of the Parties
Counsel for the revisionist submitted that the Family Court rejected her maintenance claim on a non-existent ground. It was pointed out that the army authorities had sanctioned a 15% deduction from the husband’s pay and allowances exclusively for the maintenance of their minor son pursuant to an order dated July 12, 2011, and that no maintenance had been granted to the revisionist herself. Furthermore, by a communication dated January 19, 2019, the army authorities discontinued this deduction following the husband’s discharge from military service on December 31, 2018, advising her to approach the civil court since maintenance could not be deducted from pension.
On the other hand, counsel for the husband contended that 15% of his salary had been regularly remitted for the maintenance of both the revisionist and the child since 2008. The respondent also relied on the ex-parte divorce decree dated September 25, 2014, granted on the ground of desertion, arguing that the revisionist had voluntarily deserted the matrimonial home without valid justification and was therefore barred from claiming maintenance. The respondent cited the Madras High Court decision in Maheswari versus Ayyappan @ Kumar, which discussed the validity of remarriage under Section 15 of the Hindu Marriage Act after the expiry of the limitation period for challenging an ex-parte decree, referencing the Delhi High Court decision in Seema Devi V. Shree Ranjit Kumar Bhagat and Supreme Court rulings in Krishnaveni Rai v. Pankaj Rai, Anurag Mittal v. Shaily Mishra Mittal, and Lila Gupta v. Laxmi Narain.
The Court’s Analysis
Examining the record, the High Court observed that army communications contained contradictory statements regarding whether the 15% salary deduction was remitted for the minor child alone or jointly for both mother and son. However, the Court observed that the trial court’s finding that the revisionist had no independent source of income to maintain herself was supported by the evidence, as the husband failed to substantiate his assertion that she earned Rs. 15,000 per month from teaching, tailoring, or selling milk.
The Court then addressed the core legal issue: whether a wife against whom a decree of divorce has been passed on the ground of desertion can claim maintenance under Section 125 CrPC.
The Court observed:
“Therefore, the law is very clear on this aspect that a divorced woman is also entitled to maintenance until she gets remarried or she is capable to maintain herself by her own earning, if there is no legal embargo.”
In analyzing the statutory framework, the High Court placed extensive reliance on the Supreme Court judgment in Rohtash Singh versus Smt. Ramendri and others (AIR 2000 SC 952). The Supreme Court had established that the disqualifications enumerated under Section 125(4) CrPC—including living in adultery, refusing to live with the husband without sufficient reason, or living separately by mutual consent—presuppose the subsistence of matrimonial relations. When the marriage is dissolved by a decree of divorce, the requirement of having a “sufficient reason” to live separately becomes irrelevant.
The High Court noted that by virtue of Explanation (b) to Section 125(1) CrPC, a divorced woman continues to enjoy the status of a “wife” for the limited purpose of claiming maintenance from her former husband until she remarries. The Court also took note of the Calcutta High Court judgment in Shiv Kumar Dheer versus Anjali Rani (1983 CRLJ 36), which held that a decree of divorce obtained on the ground of desertion is not a bar to a claim for maintenance as a divorced wife under Section 125 CrPC.
Applying these precedents, the High Court held:
“Even if on the basis of contention of opposite party no.2 and on account of grant of a decree of divorce by a Family Court against the revisionist on the ground of desertion, by order dated 25.09.2014, the revisionist is not found to be entitled for maintenance of herself, yet she is entitled to seek maintenance from her husband after divorce which has been effective since 25.09.2014.”
The Court further observed:
“The revisionist is entitled to receive maintenance from her husband from the date of divorce i.e. 25.09.2014 onwards during her life till she gets remarried.”
Regarding the minor child, the Court held that he was entitled to maintenance from the date of the application until he attained majority, excluding the period during which maintenance was received through army authorities.
Decision of the Court
Holding that the Family Court’s complete rejection of the maintenance application was vitiated by legal and factual errors, the High Court set aside the order dated December 22, 2018.
The High Court allowed the criminal revision and remitted the matter to the Family Court, Sultanpur for a fresh decision on the maintenance petition in accordance with law, directing that the proceedings be concluded expeditiously and preferably within six months.
The parties were directed to submit affidavits disclosing their assets, income, and liabilities before the Family Court at the commencement of rehearing, in compliance with the Supreme Court’s directives in Rajnesh versus Neha ((2021) 2 SCC 324).
Pending final disposal before the Family Court, the High Court directed the husband to pay Rs. 4,000 per month as interim maintenance to the revisionist, with a stipulation that payments made pursuant to earlier interim orders would be adjusted against any final arrears awarded.
Case Title: Smt. Suneeta Versus State Of U.P. And Anr.
Case No.: Criminal Revision No. 254 of 2019
Bench: Justice Ram Manohar Narayan Mishra
Date: September 18, 2026
