Like a divorced wife, a wife separated from her husband by a decree of judicial separation is also entitled for maintenance. She can maintain such a claim by filing petition before the competent court. This has been ruled by the Supreme Court very recently in a matrimonial dispute.
At the outset, it can be well-said that in a suit where a decree of divorce has been granted in favor of the wife, she is also entitled to maintenance from her husband. The ground of divorce has been explaine in Section – 13 of the Hindu Marriage Act – 1955. Similarly, the ground of judicial separation has been explained in Section – 10 of the Act. The grounds are if one spouse after the solemnization of marriage had voluntary sexual intercourse with any person other than his or her spouse. Secondly after the marriage, the petitioner was treated with cruelty by the opposite party. Thirdly one spouse has deserted the company of the petitioner for a continuous period of not less than two years immediately before filing the petition for divorce or judicial separation.
Fourthly one party to the marriage has ceased to be a Hindu by conversion to another religion or has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. That apart, a spouse can seek for divorce or judicial separation by the order of the court if one party has been suffering from a virulent and incurable form of leprosy or has been suffering from venereal disease in a communicable form or one party has renounced the world by entering into any religious order. Lastly a divorce or judicial separation can be granted if one spouse has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him had that spouse been alive.
In this backdrop, it is gratifying to note that the grounds seeking for a decree of divorce by any spouse is the same as that of a prayer for grant of a decree of judicial separation by the order of the competent court. Recently, the Supreme Court observed that a judicially separated wife is also entitled to maintenance while dealing with a woman’s plea challenging the Patna High Court judgment of 2014 which ruled that a judicially separated wife is not entitled for maintenance. The Patna High Courts’ order was pronounced basing on a petition filed by the husband of the lady who had challenged the trial courts’ order, awarding maintenance of Rs 4,000 per month in favour of the wife.
As a matter of fact, the grounds for divorce and for a decree of judicial separation are the same and for this reason, the apex court observed that there is no reason or plausible explanation as to why when a divorced wife is getting maintenance from her husband, a judicially separated wife of court will be refused this claim for maintenance. It is stated that both a divorced wife and judicially separated wife stand on the same footing. Therefore, recently a Bench of Justice Modan B Lokur and Justice Deepak Gupta set aside the Patna High Courts’ order and remanded the case to it for fresh consideration.
It may be mentioned that at the time of hearing before the apex court, the lawyer appearing for the husband submitted that the wife was not entitled for any maintenance as there was already a decree of judicial separation granted by the competent court. Such an argument of the husband was repelled by the apex court.
The court held that merely because the lower court had not given any finding that the woman was not able to look after herself is not a ground that she was not entitled for maintenance. The court further observed that in such matrimonial cases, the High Court is called upon to look into such question whether the woman is entitled to maintenance or not and if so the quantum of maintenance has to be fixed. It is worthy of mention that in that case, the woman had not been paid any maintenance for the last nine years.
Therefore, the apex court directed the High Court to keep this aspect in mind while deciding the case. It may be mentioned that the woman had filed an application claiming for maintenance under Section – 125 of the code of criminal procedure. In this context, it can be well said that the object of such a provision is to save the affected/victim wife from vagrancy and destitution. Accordingly, the Supreme Court granted relief to the woman who had knocked at the door of the Supreme Court seeking for the justice.
Concluding, the judgment of the apex court giving relief to the legally separated wife and granting maintenance in her favour would certainly open a new vista and go a long way in the matter of settlement of matrimonial disputes in favour of the aggrieved woman of our society craving for justice. The judgment is hailed as a new charter in the areas of woman empowerment and gender justice.
(The writer is ex-Special Judge, CBI, who lives in Bhubaneswar, Mob: 9437022723)