Tripura High Court: S.G. Chattopadhyay, J., decided on a petition which was filed by the petitioner challenging order passed by the Additional Judge, Family Court which stated that the petitioner was not entitled to any maintenance allowance under section 125 Cr.P.C from her husband in view of her refusal to restore conjugal relationship with her husband pursuant to the judgment and decree passed by the District Judge for restitution of conjugal rights.
Petition was filed claiming maintenance allowance for herself and her minor son from her husband. Petitioner made some allegations of matrimonial cruelty against her husband. Ultimately, she returned to her parents along with her son to get rid of torture of her husband. Having no means of earning, she claimed maintenance allowance from her husband. Respondent denied all allegations of his wife. Respondent husband of the petitioner claimed before the Family Court that he was living on subsistence allowance and unable to provide any maintenance allowance to his son and wife. The Family Court however, on appreciation of pleadings and evidence granted a sum of Rs.2,000/- to the petitioner for maintenance of herself and her son. Thereafter, the petitioner filed a petition under section 127 Cr.P.C seeking enhancement of the maintenance allowance on various grounds.
The Family Court came to a finding that petitioner was a Panchayet Secretary whose monthly gross salary was Rs.25,715/- and after deductions he was drawing carry home salary of Rs.18,117/- per month. Family Court by order granted a consolidated sum of Rs.7,000/- per month to the petitioner for maintenance of herself and her son. This order was challenged by the respondent seeking cancellation of the maintenance order under section 127 Cr.P.C on the ground that a decree for restitution of conjugal rights was passed in his favour and despite such decree, the petitioner declined to restore conjugal relationship with her husband.
Family Court thereafter, cancelled the maintenance allowance payable to her viewing that in view of the decree passed she was not entitled to any maintenance allowance from her husband.
Counsel appearing for the petitioner wife contends that the Family Court did not consider the fact that the amount of maintenance allowance which was granted by the Family Court also include the maintenance allowance payable to the son of the petitioner which cannot be cancelled on the ground of failure of the petitioner wife to restore conjugal relationship with her husband.
Counsel appearing for the respondent husband on the other hand submits that in terms of section 125(4) Cr.P.C, a wife who refuses to live with her husband without sufficient reason is not entitled to maintenance allowance under section 125 Cr.P.C.
The Court noted that respondent was granted an ex-parte decree for restitution of conjugal rights on the basis of which Family Court passed the impugned order cancelling the maintenance allowance granted to the wife.
In Sanjay Chopra v. Shyama, 1999 SCC OnLine P&H 12 held that in such facts and circumstances, obtaining the decree of restitution of conjugal rights by the husband would have no effect on the wife’s claim to maintenance wherein he did not call upon his wife to resume conjugal life through the process of executing the decree. As a result, it could not be ascertained as to whether the husband was genuinely willing to take back his wife since the matter proceeded ex parte. Moreover, the wife also did not have any opportunity to offer any explanation as to why she refused to resume conjugal life.
The Court finally was of the view that the Family Court did not consider the fact that the decree was passed ex-parte and her husband did not come out with an offer to her to return to the conjugal life through the process of execution of the decree. The impugned order was set aside and order with regard to payment of maintenance allowance at an enhanced rate to the wife and son of the petitioner was restored.[Sanjita Roy v. Swapan Ch. Das, 2022 SCC OnLine Tri 53, decided on 02-02-2022]
Suchita Shukla, Editorial Assistant has reported this brief.
For Petitioner(s) : Mr P.K. Ghosh
For Respondent(s) : Mr R.G. Chakraborty
