Mere decree under Section 9 of the Hindu Marriage Act (HMA) shall not ipso facto debar the wife from her statutory right of maintenance under Section 125 of the Code of Criminal Procedure (CrPC): Delhi High Court

The Delhi High Court has passed a judgment on 22-08-2022 in the case of Babita vs Munna Lal CRL.REV.P. 1001/2018. Justice Swarana Kanta Sharma disposed the petition.


The marriage between the parties was solemnized on 13.05.1993, and a daughter and a son were born out of their wedlock. The Petitioner/wife filed a petition under Section 125 Cr.P.C. against the Respondent for grant of maintenance for herself and children on 15.04.2009. Respondent was served, however he did not appear before the learned Trial Court on 01.10.2022 despite service of summons, therefore he was proceeded ex-parte by a order.

The matter was adjourned for recording ex-parte evidence of the petitioner to 30.11.2012. On 30.11.2012, the respondent alongwith his counsel appeared before the Trial Court and filed application under section 126 Cr.P.C. Thereafter the matter was adjourned and was listed for argument on application under Section 126 Cr.P.C to 04.03.2013. On 04.03.2013, respondent did not appear to address the arguments for setting aside the ex-parte order, Thereafter, respondent did not appear again to participate in the proceedings and only appeared on 14.08.2013 for filing of certified copy of a judgment.

Parallelly in 2009, the Respondent filed a petition under Section 9 of the Hindu Marriage Act, 1955 (hereinafter „HMA‟) before the Learned Family Court, Hamirpur for Restitution of conjugal rights. He was aware about the maintenance proceedings at Delhi in 2012, but chose not to join proceedings at Delhi and also did not disclose this fact to the court at Hamirpur. Later, by virtue of an ex-parte judgment dated 23.04.2013, the petition was decreed ex-parte in favour of the Respondent and consequently, the Petitioner/wife was directed to join the company of the Respondent. 

Meanwhile, the interim maintenance application of the wife came to be allowed by the trial court and the husband was directed to pay ₹1,300 per month each to the wife and the children. An appeal by the husband was dismissed by the Sessions Court in December 2013. The husband’s appeal before the High Court was also dismissed.

This petition has been filed under Section 397 read with Section 402 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter „Cr.P.C.‟) for setting aside impugned judgment dated 09.02.2018 passed by the Learned Judge, Family Court, Shahdara District, Karkardooma Courts, New Delhi in CC no. 364/2017 whereby the grant of maintenance under Section 125 Cr.P.C. to the Petitioner herein was declined on the ground that Respondent had obtained a decree for restitution of conjugal rights in his favour.

The question for consideration before this Court is:

“Whether the wife against whom decree for restitution of conjugal rights has been passed, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure?”


The High Court examined the factual matrix and held that while examining the claim for maintenance against a decree for restitution of conjugal rights, courts must keep in mind:

(i) the evidence led by the wife regarding harassment and physical and/or mental abuse due to which she is unable to reside with the husband;

(ii) whether the embargo contained in Section 125(4) i.e. “without any sufficient reason refuses to live with the husband” has been adjudicated on merits or ex parte, and if so, the monetary and other relevant circumstances of the wife because of which ex parte decree for restitution came to be passed against her;

(iii) the conduct of the wife as to whether she had sufficient reasons to not stay with husband, or husband creating such circumstances that she will not be able to stay with him;

(iv) whether the husband was ready to give effect to the decree for restitution of conjugal rights or that such a decree has been obtained solely to deny the claim of the wife for maintenance under Section 125 CrPC.

After examining the purpose and ingredients of Section 125 CrPC and its interplay with Section 9 of the HMA, the Court came to the conclusion that an ex-parte decree for restitution of conjugal rights held by the husband, wherein no execution proceedings have been filed, will not be a bar to the wife’s claim for maintenance.

The Court further directed that in the proceedings under Section 125 CrPC, the trial court ought to have conducted an independent inquiry and should have appreciated evidence to determine whether the complainant had made out a case for grant of maintenance under Section 125 CrPC or not. Only thereafter could it decide as to whether on the basis of ex-parte decree of restitution of conjugal rights, the wife has disentitled herself from grant of such relief.

The view taken by the trial court that an order of a civil court granting an ex-parte decree of restitution would automatically put an end to the right of the wife to grant of maintenance under Section 125 CrPC was held to be incorrect.

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