Recently, the Delhi High Court has observed that rejection of an application for maintenance in a divorce petition, would not disentitle the wife to seek maintenance under Section 125 of CrPC.

Justice Yogesh Khanna was dealing with a plea filed by a husband challenging the order and the maintenance petition under Sec. 125 Cr.P.C. pending before the Family Court.

The Counsel for the petitioner (husband) submitted that the parties have acted upon the consent terms and the wife cannot be allowed to flout the said terms and embroil the petitioner in multiple cases.

High Court found that it was the petitioner himself who had voluntarily agreed to make payment of the school fee of both their children but such consent could not have been given at the cost of maintenance payable to the respondent wife and such a concession given by the petitioner cannot be read as contrary to the right of his wife to seek maintenance.

Noting that the petitioner husband was not making any payment towards the maintenance of his wife on the pretext that he was making payment of school fee of both his children, the Court was of the view that the Supreme Court order revealed that it was the petitioner himself who had voluntarily agreed to make payment of the school fee of both their children.

The bench stated that “No fault can be found in her action since it is at the first place the petitioner had failed to comply with the consent order thus, he cannot allege the respondent must act under the consent order. Pendency of a petition for divorce and rejection of an application for maintenance in such petition, would not disentitle the respondent to seek maintenance under Section 125 Cr.P.C. looking at its scope and ambit. The respondent cannot be left in a lurch by denying her maintenance on the ground the petitioner is paying school fee.”

In view of the above circumstances , High Court dismissed the petition of the husband.

Case Title: Soumitra Kumar Nahar v. Parul Nahar