Question: Maintenance order passed to pay rupees 6500 to my wife. The court gave that order; even my wife refused to live with me. She has been living separately. She voluntarily refused to live with me. If a wife refuses to live with her husband, then is she entitled for maintenance?
Asked from: Rajasthan
In India, under Section 125 of the code of criminal procedure, a wife is entitled to maintenance from her husband if she is unable to maintain herself. This includes situations where a wife is unable to earn a livelihood due to physical or mental incapacity, or if she is a stay-at-home and has no means of support.
However, if a wife has voluntarily left her husband and is living separately, the question of maintenance becomes more complex. The court will take into consideration the reasons for the separation, such as domestic violence, cruelty or desertion by the husband, before deciding on the maintenance amount.
In cases where a wife has voluntarily left her husband and is living separately, it is possible for the court to reject the claim of maintenance. The wife is bound to perform her marital responsibility. Stay with husband in the matrimonial home is one of the marital responsibilities. It is also possible for the court to invoke Section 127 crpc and modify the maintenance order, if the court finds that wife has no sufficient reason to live separate from husband.
It’s worth noting that the maintenance order passed by the court is not a punishment on husband but its a financial support to wife to maintain herself. It’s also worth noting that the maintenance order can be reviewed and modified by the court if there is a change in circumstances.
The wife must have a good reason for living separate from husband
Wife is not entitled to maintenance if she has no reasonable cause to live separate. The wife can claim alimony under section 125 of the code of criminal procedure (crpc) if her husband refuses or neglects to maintain her. Section 125 also requires that the wife should be ready to live with her husband. She cannot get hot and cold water simultaneously.
In one hand she refuses to live with her husband without any reasonable cause and on the other hand, claiming maintenance. Sub-section 4 of section 125 crpc itself enumerates that wife is not entitled to alimony if she, without any sufficient reason, refuses to live with her husband.
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.Section 125(4) CrPC
File a revision against the order of Section 125 CrPC
The Magistrate should have rejected your wife’s petition for maintenance. The provisions of section 125(4) does not allow the Magistrate to grant alimony if wife without any sufficient reason refuses to live with her husband. The order of maintenance is passed in violation of statutory provision i.e. section 125(4) CrPC. Therefore, you should immediately file a revision for setting aside this order. You should also seek an interim relief from the revisional court i.e. to stay the order of monthly allowance with immediate effect.
The litigant must approach the court with his clean hands. If a wife is not ready to live with her husband, then she has no right to claim maintenance. Your wife is a guilty parte because she is refusing to perform her matrimonial obligation. Therefore, the guilty party is not entitled to get any relief from the court. Section 125 (4) thus, embodies this principle. When the wife is living separately, the court must satisfy itself whether she has sufficient reason thereof. If the answer is no, the court cannot pass any order of alimony or monthly allowance.
Where to file revision petition
If a Magistrate has passed this order the revision will lie in Court of Sessions. In case the family court has passed the order, then you can file a revision before the High Court. Section 397 CrPC deals with the revision regardless the order is passed by the Magistrate or Family Court. It is an erroneous order, therefore, liable to be set aside.