The main legal point established is that a wife who has deserted her husband and refused to live with him is not entitled to claim maintenance for the period prior to the divorce decree, but is entitled to claim maintenance as a divorced woman from the date of the decree of divorce.

1. Here is the peculiar case wherein the question arises for consideration is whether the husband, who obtained decree for divorce on the ground of refusal on the part of the wife to live with her husband is liable to pay any maintenance and if so, the period from which his liability to pay maintenance commences.

2. The facts, which are relevant for consideration herein are that the petitioner-husband and the respondent-wife got married on 10.07.2003 and the wife left the husband on her own and the parties started living separately from 12.02.2004. The husband filed a petition for divorce on 27.11.2004 on the file of Sub-Court, Chingleput on two grounds, namely, desertion and act of cruelty on the part of wife. During pendency of the divorce petition, wife also came forward with M.C.No.41 of 2005 filed on 2.8.2005 petition under Section 125 of Criminal Procedure Code for monthly maintenance before the learned Chief Judicial Magistrate, Vellore. The wife, on service of notice appeared in the Divorce petition and also filed Transfer C.M.P.No.343 of 2007, seeking transfer of HMOP to different Court, but the transfer CMP was after hearing both sides, dismissed on 29.10.2008. In the meanwhile, M.C.No.41 of 2005, after due contest was ordered on 13.03.2007 thereby directing the petitioner-husband to pay monthly maintenance of Rs.1,000/-to his wife from the date of petition for maintenance. Subsequently, the divorce petition was also disposed of on 30.03.2009 by granting a decree of divorce in favour of the husband on both grounds.

3. Aggrieved against the award of maintenance, the petitioner-husband preferred this Criminal Revision Petition No.694 of 2007 and the same was admitted on 25.04.2007. The petitioner-husband was also granted an interim order of stay on condition to deposit 50% of the maintenance arrears. Accordingly, the petitioner-husband has deposited Rs.48,500/-(Rupees Forty Eight Thousand and Five Hundred only) till August, 2013 towards maintenance arrears. It is not in dispute that no appeal is filed by the wife against the divorce decree. At this juncture, learned counsel for the respondent-wife would submit that the decree granted in H.M.O.P. is an exparte decree and the wife has been taking steps to have it set aside on the issue of jurisdiction as well as on merits. Whereas learned counsel for the petitioner-husband would read out the final order made in the divorce petition in support of his contention, that the decree of divorce is granted on merits, that too, after hearing both sides and cannot be construed as an exparte award.

4. In my considered view, the issue as to whether the decree for divorce is exparte or contested one need not be gone into at this stage and unless and until it is set aside, the exparte decree is as good as contested one. As of now, the divorce decree remains in force.

5. The learned counsel for the petitioner-husband would in this criminal revision seriously question the validity and correctness of the award of maintenance, mainly on the ground that as the husband and wife had been contesting the petition for divorce on the ground of act of cruelty and act of desertion on the part of wife and as under Section 125(4) of Cr.P.C., the wife, who refuses to live with her husband without any sufficient reason is not entitled to receive any allowance for maintenance, the learned Magistrate ought to have dismissed the claim for maintenance made by the wife or ought to have postponed the disposal of the maintenance case till disposal of the divorce petition. It is contended by the learned counsel for the petitioner-husband that the wife, being not entitled to claim maintenance for the period prior to the date of decree of divorce on the ground of desertion is not entitled to conduct proceedings for maintenance pending divorce petition. The learned counsel for the petitioner-husband has also cited the authority of the Hon'ble Supreme Court reported in 2000 (3) SCC 180, Rohtash Singh