Divorce on grounds of desertion subject to maintenance: Supreme Court

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The Supreme Court on Saturday ruled that a wife, who has been divorced on the ground of desertion, is entitled to claim maintenance from her ex-husband.

A bench headed by Justice Deepak Gupta dismissed the petitioner's (husband) plea to refer the matter to a larger bench.

"This view has been consistently taken by this Court and the said view is in line with both the letter and spirit of the Code of Criminal Procedure," said the court.

The apex court evaluated the issue by answering a question whether a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the CrPC.

According to the petitioner (husband) in terms of sub-section (4), a wife who has deserted her husband cannot claim maintenance under Section 125 of the CrPC.

"His further submission is that since in terms of the explanation wife includes a divorced woman, therefore, even a wife who has been divorced on the ground of desertion would not be entitled to maintenance in view of sub-section (4)," noted the court recording the husband's submission.

The court noted that this case will put to test how courts' deal with those women against whom a decree for divorce has been obtained on the ground that they have deserted their husband.

"Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband," observed the court.

The apex court declined to entertain the contentions raised by the husband that the wife being a qualified architect from a reputed university would be presumed to have sufficient income.

"No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself," said the court dismissing the husband's plea.

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