Spousal maintenance claims are valid when a husband deserts his wife, even if she lives separately.

ORDER

This revision petition has been filed challenging the order dated 06.10.2021 passed by the Family Court, Nedumangad, in M.C.No. 539 of 2018, declining maintenance to the wife.

2. The petitioner is the wife of respondent No.2. She had filed M.C.No. 539 of 2018 against respondent No.2 claiming maintenance at the rate of Rs.25,000/- per month, under Section 125 of Cr.P.C. After trial, the Family Court dismissed the maintenance case on the ground that the petitioner was living separately from respondent No.2 without sufficient reason. The said order is under challenge in this revision petition.

3. I have heard both sides.

4. Respondent No.2 does not have any case that the petitioner has any job or source of income. Admittedly, respondent No.2 was employed in the Gulf. According to him, he has come down from the Gulf and thereafter he has no job.

5. It is true that the obligation of a husband to maintain his wife is not absolute. It is subject to the corresponding marital obligation of the wife to reside along with him and to discharge her marital obligations. However, if the wife chooses to live separately for valid and sufficient grounds such as cruelty or desertion, still she can claim maintenance. In the petition itself, the petitioner has taken a definite contention that since 2014, respondent No.2 has deserted her and their children and has not maintained them. In the objection filed by the respondent No.2, this specific allegation has not been specifically denied, but he has contended that the petitioner left his company without any valid reason. In her chief affidavit, the petitioner has specifically stated that respondent No.2 deserted her and the children on 14.10.2014 and thereafter did not maintain them at all. It is further stated that she and her children have been depending on her brother and other relatives. This positive evidence given in chief-examination has not been challenged in cross-examination at all. On the other hand, during cross- examination, respondent No.2 put a question to the petitioner whether she is prepared to go and reside with the respondent No.2. To the said question, the petitioner answered in the negative.

6. It has come out in evidence that respondent No.2 had deserted the petitioner and the children since 2014. Desertion by the husband is a sufficient ground for the wife to live separately. Since desertion continued for long period, the petitioner cannot be found fault with in refusing the offer made by the respondent No.2 during cross-examination. The said answer given by the respondent No.2 cannot be viewed in isolation. The entire facts, circumstances and evidence on record have to be appreciated in a holistic manner. When the evidence is evaluated in such a manner, it is clear that the respondent No.2 had deserted the petitioner. Therefore, I am of the view that the petitioner is justified in living separately. The finding of the Family Court that the petitioner is not entitled for maintenance thus cannot be sustained.

7. As stated already, the respondent No.2 does not have any case that the petitioner has any job or income. On the other hand, it is an admitted case that the respondent No.2 was employed at Gulf. The respondent No.2 does not have any case that he has any physical inability to go for work. In Rajnesh v. Neha and Another [ (2021) 2 SCC 324 ], the Supreme Court has held that an able-bodied person cannot take a contention that he does not have any job and thus cannot maintain his wife and children.

8. Considering the requirements of the petitioner and the ability and means of the respondent No.2, I am of the view that Rs.5,000/- would be reasonable. Hence