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Wife Entitled To Maintenance Even If She Unilaterally Divorces Her Husband If She Is Unable to Maintain Herself: Calcutta High Court

Socio Legal Corp

Written By – Arshita Anand

On 1st July, 2021, the Calcutta High Court ruled that a divorced wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure (CrPC) even if the divorce had been unilaterally initiated by her.

In this case the petitioner had challenged an order passed by the Additional Sessions Judge, 5th Court, Murshidabad whereby maintenance under Section 125 of the CrPC had been denied to the petitioner. This order as passed on 18th November, 2017.

 Since the petitioner could not be considered to be a ‘destitute’ as she had herself unilaterally granted divorce to the respondent, I.e., her husband, which meant that she ‘willfully neglected’ her husband, the Additional Sessions Judge had rejected such a prayer for maintenance on this ground. Moreover, the Sessions Court reaffirmed the ruling a claim for maintenance could not be granted to the petitioner since she was allegedly found to be in a compromising position.

However, Justice Bibek Chaudhary observed that under Section 482 of the CrPC, the High Court was entrusted with inherent powers that it could rectify any wrong committed by the Trial Court as well as the Revisional Court. Reflecting on the illegality of the impugned order, Justice Chaudhuri observed,

“The Learned Trial Judge committed illegality when she held that a divorced wife is not entitled to get maintenance. The petitioner moved in revision for redressal of the said wrong but she was again wronged by the Learned Revisional Court on the ground that the petitioner was allegedly found in a compromise situation with a third person by the opposite party and accordingly she was not dutiful to her husband.” The High Court declared that till the case of inability to maintain oneself, a divorced wife shall always be entitled to maintenance.

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