A man with the means to maintain himself cannot deny maintenance to wife and children: High Court of Jammu and Kashmir

Any man who has the means to financially maintain himself cannot deny maintenance to his wife and children upon deserting his wife. This was held by the single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Irshad Ahmad Sofi v Afshana Shah [CRM no. 34/2019 IA, no. 01/2019] pronounced on 25th August 2021.

The petitioner, Irshad Ahmad Sofi filed the present petition requesting the Court to set aside the order of the Trial Court which granted a monthly maintainance of Rs. 4,000 in addition to the maintenance granted to the child by the sub-court of Sub-Judge, 13th Finance. The petitioner contended that both the Trial Court and the Appellate Court ignored the fact that no maintenance had been prayed for the child and further that the child was not even a party before the Trial Court. The petitioner contended that the amount prescribed by the previous courts was excessive and that it would be unreasonable to direct him to pay such a large amount despite only earning a meagre salary.

The court stated that when a man has lived with a woman for a long period of time, even if they have not undergone the legal necessities of a valid marriage, he will be made liable to pay for the woman’s maintenance if he deserts her. It was observed that no man should be allowed to enjoy the benefits of having a wife, without the responsibility towards her and their children. The case of Mohammad Ahmed Khan v Shah Bano Begum & others [1985 (2) SCC 556] was cited by the Court, where the Supreme Court of India declared that the provision of Section 125 of the 1973 Code of Criminal Procedure was completely secular in nature and therefore would apply to all men irrespective of their personal laws.

Justice Vinod Chatterji Koul came to the conclusion that “any person, who has sufficient means to maintain himself, cannot deny maintenance to his wife and children. The object is to prevent vagrancy and destitution. It provides a speedy remedy for supply of food, clothing and shelter to deserted wife. The term ‘wife’ in Section 125 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her”.

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