Section 125 CrPC: Divorced Woman Entitled To Maintenance Even If Husband Got Divorce On Desertion Ground, Says Allahabad HC

The Allahabad High Court has held that a divorced woman can seek maintenance from her former husband under Section 125 of the Code of Criminal Procedure [now Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)] even where the divorce decree was obtained by the husband on the ground of her alleged desertion.

The bench of Justice Ram Manohar Narayan Mishra set aside a family court order that had rejected revisionist Suneeta's maintenance claim and remitted the matter for fresh consideration. During the pendency of the proceedings, court had directed her former husband, Rajesh Kumar Yadav, to pay her Rs 4,000 per month as interim maintenance.

Case background

Suneeta had approached the court seeking maintenance for herself and her son under Section 125 CrPC. She had alleged that her husband and his family had harassed her over dowry and that her husband had subsequently brought another woman home, claiming her to be his wife.

Rajesh denied the allegations and claimed that Suneeta had deserted him and was unwilling to live with him. He also said he was willing to maintain her but could not keep her at his Army posting because he had not been allotted family accommodation.

The dispute eventually reached the family court, which acknowledged that Suneeta was Rajesh's legally wedded wife but rejected her maintenance application. Court relied, among other things, on the fact that 15% of Rajesh's salary was being deducted through Army authorities and paid towards maintenance.

The high court, however, found that the Army records themselves contained contradictory accounts about whether the deduction was meant for Suneeta, her son or both. It noted that one Army communication recorded that the amount was being paid for the son's maintenance.

Divorce on desertion ground does not by itself defeat maintenance claim

A significant development during the case was that Rajesh obtained an ex-parte divorce decree against Suneeta on September 25, 2014, on the ground of desertion. The high court noted that evidence also indicated that he subsequently remarried and had the name of Neelam Yadav recorded as his wife in his service records.

The high court relied on the Supreme Court's ruling in Rohtash Singh v. Ramendri (2000), which had clarified that a woman divorced by her husband continues to fall within the definition of "wife" under Section 125 CrPC for the limited purpose of claiming maintenance.

The Supreme Court had held that if a divorced woman is unable to maintain herself and has not remarried, she can claim maintenance. The fact that the husband obtained the divorce on the ground of her desertion does not, by itself, bar such a claim after the divorce.

Applying this principle, the high court observed that "a divorced woman is also entitled to maintenance until she gets remarried or she is capable to maintain herself by her own earning", subject to the applicable legal conditions.

The high court said the family court's decision to reject Suneeta's maintenance claim "in toto" could not be sustained and was vitiated by legal and factual errors.

It noted that there was no evidence on record establishing that Suneeta had an independent income sufficient to maintain herself. At the same time, court held that the maintenance already paid through Army authorities had to be accounted for while determining arrears.

It therefore held that Suneeta could seek maintenance from her former husband from the date of divorce, September 25, 2014, and continue to receive it during her lifetime until remarriage. Her son was also held entitled to maintenance from the date of filing of the maintenance petition until he attained majority, excluding periods for which maintenance had already been paid through the Army.

The high court directed both sides to disclose their assets, income and liabilities before the family court and ordered the court to reconsider the matter, preferably within six months. It also permitted the parties to lead further oral or documentary evidence if necessary.

The revision was accordingly allowed and the family court's order was set aside.

Case title: Smt. Suneeta v. State of U.P. and Another

Judgment date: September 18, 2026

Bench: Justice Ram Manohar Narayan Mishra