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SUPREME COURT OF INDIA
MADAN B. LOKUR, DEEPAK GUPTA, JJ.
Sanju Devi - Appellant
Vs.
State of Bihar - Respondent
Petitions for Special Leave to Appeal (Crl.) No. 4057 of 2015
Decided On : 06-12-2017
Maintenance - Section 125 of the Code of Criminal Procedure, 1973 - The court held that a wife who is judicially separated is entitled to maintenance, rejecting the argument that a divorced wife is entitled but not a judicially separated wife. The High Court misdirected itself by not considering whether the petitioner is entitled to maintenance and the quantum of maintenance, leading to the setting aside of the impugned judgment and remanding the matter for fresh consideration.
Fact of the Case:
The petitioner applied for maintenance under Section 125 of the Code of Criminal Procedure, 1973 and was awarded maintenance by the Trial Judge. The respondent-husband preferred a revision petition in the High Court, which observed that the petitioner was not entitled to maintenance as the Trial Court did not find her unable to fend for herself.
Finding of the Court:
The Court found that the High Court misdirected itself on the issues and set aside the impugned judgment, remanding the matter for fresh consideration. It also noted that the argument that a judicially separated wife is not entitled to maintenance was rejected, and the High Court failed to consider the entitlement and quantum of maintenance.
Issues: Entitlement to maintenance for a judicially separated wife, misdirection by the High Court, non-payment of maintenance for nine years.
Ratio Decidendi: The court held that a wife who is judicially separated is entitled to maintenance, and the High Court misdirected itself by not considering the entitlement and quantum of maintenance.
Final Decision: The impugned judgment was set aside, and the matter was remanded to the High Court for fresh consideration, with a request to consider the non-payment of maintenance for the last nine years.
ORDER :
1. We have heard learned counsel for the parties.
2. The petitioner had applied for maintenance under Section 125 of the Code of Criminal Procedure, 1973. The Trial Judge had awarded maintenance of Rs. 4,000/- per month.
3. Feeling aggrieved, the respondent-husband preferred revision petition in the High Court. By the impugned judgment and order dated 17.12.2014, the High Court observed that the Trial Court has not given the finding that the petitioner was unable to fend for herself, therefore, she is not entitled for maintenance.
4. It is submitted by learned counsel for the respondent - husband that there is already a decree of judicial separation and in view of Section 125(4) of the Code of Criminal Procedure, 1973, the petitioner is not entitled to any maintenance. We are noting this argument only to reject it since we find no substance in this argument. If a divorced wife is entitled for maintenance there is no reason why a wife who is judicially separated is not entitled for maintenance.
5. We are also unable to subscribe to the view of the High Court that merely because the Trial Court has not given a finding that the petitioner is not able to look after herself, therefore, she is not entitled for maintenance. The High Court is required to look into the question whether the petitioner is entitled to maintenance or not and, if so, the quantum of maintenance. Since the High Court has misdirected itself on the issues before us, we set aside the impugned judgment and order dated 17.12.2014 and remand the matter to the High Court for fresh consideration.
6. It is stated by learned counsel for the petitioner that no maintenance has been paid for the last nine years. We request the High Court to keep this in mind while deciding the petition.
7. The special leave petition stands disposed of.
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