Divorce Granted on Ground of Desertion Does Not Bar Wife's Maintenance Under Section 125 CrPC — Allahabad HC

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Overview

The Allahabad High Court (Lucknow Bench) has held that a woman divorced by her husband on the ground of her own desertion does not lose her right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) — so long as she has not remarried and remains unable to maintain herself. The Court set aside a Family Court order that had dismissed a wife’s maintenance application and remitted the matter for a fresh decision.

Case: Smt. Suneeta v. State of U.P. and Anr.
Citation: Neutral Citation 2026:AHC-LKO:65964 (reported as 2026 LiveLaw (AB) 740)
Bench: Justice Ram Manohar Narayan Mishra
Date: Reserved 19 June 2026; delivered 18 September 2026

Note on date: the judgment itself, as reproduced on Indian Kanoon, records delivery on “September 18, 2026.” A secondary LiveLaw report of the same case states the decision date as 22 September 2026. This article follows the date recorded in the judgment text.

Facts

The proceeding originated as a maintenance application filed under Section 125 CrPC in 2008–09 by a wife before a Magistrate, later transferred to and renumbered before the Family Court. The wife alleged matrimonial cruelty and abandonment, and stated that her husband — serving in the Army — had contracted a second marriage. The husband denied the allegations and contended that the wife had herself left the matrimonial home without sufficient reason.

The Family Court dismissed the maintenance application, recording that the wife had not proved a reasonable cause for living separately from her husband as on the date of filing. Separately, the husband had obtained an ex-parte decree of divorce from the Family Court on the ground of the wife’s desertion, with effect from 25 September 2014, and later remarried. A minor child born of the marriage had, in the interim, been receiving a share of the husband’s Army salary as maintenance, deducted departmentally.

The wife challenged the dismissal of her own maintenance claim in a criminal revision under Section 19(4) of the Family Courts Act, 1984 before the Allahabad High Court. The revision proceeded independently of, and after, the divorce decree had already taken effect; the divorce itself was not under challenge before the High Court.

What the Court Held

1. A divorced wife remains a “wife” for Section 125 CrPC purposes. Relying on Explanation (b) to Section 125(1) CrPC and the Supreme Court’s decision in Rohtash Singh v. Smt. Ramendri, the Court held that “the respondent continues to be ‘wife’ within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1),” and that “a woman who has been divorced by her husband on account of a decree passed by the Family Court, continues to enjoy status of a wife for the limited purpose of having maintenance allowance from her ex-husband.”

2. The bars under Section 125(4) CrPC apply only while the marriage subsists. Following the Supreme Court’s reasoning in Rohtash Singh, the Court reasoned that “all the circumstances contemplated by Sub-section (4) of Section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end.” Once a decree of divorce has been granted, a claim for maintenance is no longer governed by the bars in Section 125(4) (living in adultery, refusal without sufficient reason to live with the husband, or living separately by mutual consent) but rests instead on the divorced-wife Explanation.

3. Desertion as the ground for divorce does not bar post-divorce maintenance. The Court held: “Even if on the basis of contention of opposite party no.2 and on account of grant of a decree of divorce by a Family Court against the revisionist on the ground of desertion, by order dated 25.09.2014, the revisionist is not found to be entitled for maintenance of herself, yet she is entitled to seek maintenance from her husband after divorce which has been effective since 25.09.2014.” The Court’s discussion of Rohtash Singh further indicates that a wife divorced for desertion may not be entitled to maintenance for the period before the divorce decree, but that this does not affect her entitlement as a divorced wife thereafter.

4. The Family Court’s finding on inability to maintain herself was not disturbed. The Court observed that “the finding of learned trial court that she is not able to maintain herself is correct and need not be interfered,” while setting aside the Family Court’s ultimate dismissal of the claim, which had rested on the desertion/no-sufficient-reason finding rather than on this point.

5. Disposal. The revision was allowed. The Family Court’s order was set aside and the maintenance application remitted for a fresh decision, to be made preferably within six months, with liberty to both sides to lead further evidence. Pending that fresh decision, the husband was directed to pay interim maintenance of ₹4,000 per month. The Court also directed that the wife would be entitled to maintenance for herself from the date the divorce took effect (25 September 2014) until she remarries, and that the minor child’s entitlement would run from the date of filing until majority, excluding periods already covered by the Army-deducted maintenance. Both parties were directed to file affidavits of disclosure of assets, income and liabilities in line with the Supreme Court’s directions in Rajnesh v. Neha.

Which provision applied — Section 125 CrPC or Section 144 BNSS

The maintenance application in this case was filed in 2008–09 and was pending when the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force on 1 July 2024, repealing the CrPC. Section 531(2)(a) BNSS — the repeal and savings clause — provides that any application pending immediately before that commencement “shall be disposed of, continued, held or made… in accordance with the provisions of the Code of Criminal Procedure, 1973… as if this Sanhita had not come into force.” Consistently with this, the judgment applies Section 125 CrPC throughout, including on remand, and does not refer to Section 144 BNSS. Section 144(4) BNSS, the successor provision, reproduces the same three bars found in Section 125(4) CrPC (living in adultery, refusal without sufficient reason to live with the husband, or living separately by mutual consent) in identical terms, so the outcome would not differ if the case had instead fallen to be decided under the BNSS.

Precedents Relied On

Rohtash Singh v. Smt. Ramendri and others, AIR 2000 SC 952 — the Supreme Court’s decision holding that a wife divorced on the ground of desertion continues to be a “wife” under Explanation (b) to Section 125(1) CrPC for the purpose of claiming maintenance as a divorced woman, and that the bars in Section 125(4) apply only to a subsisting marriage. This was the central authority applied by the Allahabad High Court.
Rajnesh v. Neha, (2021) 2 SCC 324 — relied on only for the direction that both parties file a standardised Affidavit of Disclosure of Assets and Liabilities before the Family Court on remand, not for the substantive question of entitlement.

The judgment also records that the husband’s counsel had relied on decisions of the Madras and Delhi High Courts concerning the validity of a remarriage contracted during the period for appealing a divorce decree (Section 15, Hindu Marriage Act, 1955). This was the opposite party’s submission on a distinct point going to his own remarriage; the Court’s operative findings on the wife’s maintenance entitlement do not turn on, or adopt, that line of authority.

Pending proceedings — a note on finality

This decision is not a final determination of the wife’s maintenance entitlement. The High Court has remitted the matter to the Family Court for a fresh decision on merits, with liberty to both parties to lead further evidence and file additional affidavits. The ₹4,000 monthly amount ordered by the High Court is expressly interim, pending that fresh adjudication. The underlying facts also involve allegations of matrimonial cruelty and dowry demand that were disputed between the parties and were not conclusively adjudicated in this revision; this article expresses no view on those disputed allegations and has minimised identifying detail about the parties and the minor child.

Takeaway

The decision applies settled Supreme Court law rather than departing from it: a divorce decree — even one granted against the wife on the ground of her desertion — does not by itself extinguish her right to claim maintenance under Section 125 CrPC (or its identical successor, Section 144(4) BNSS, as to the bars in question). The statutory bars in Section 125(4)/144(4) operate only where the marriage subsists; once it has ended by divorce, a wife’s claim rests on the divorced-wife Explanation, subject to two limits the Court recognised: she must not have remarried, and she must remain unable to maintain herself. The judgment also illustrates the BNSS transitional rule in practice — a maintenance application filed under the old CrPC continues to be governed by the CrPC, including on remand after BNSS came into force, because Section 531(2)(a) BNSS saves pending proceedings from the repeal.

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