Does a woman lose her right to maintenance because her husband obtained a divorce on the ground that she deserted him? Not entirely, the Allahabad High Court has held. A wife who deserts her husband may not be entitled to maintenance while the marriage subsists; but once she is divorced, a different right comes into play, that of a divorced wife who is unable to maintain herself and has not remarried, and that right survives even a divorce granted on the ground of her desertion.
Prayagraj: The Allahabad High Court has set aside an order of the Family Court, Sultanpur that had rejected a woman’s claim for maintenance under Section 125 of the Code of Criminal Procedure, holding that a divorced wife is entitled to maintenance so long as she is unable to maintain herself and has not remarried, even where the divorce decree was passed on the ground of her desertion [Smt. Suneeta v. State of U.P. and Another].
Justice Ram Manohar Narayan Mishra, allowing a criminal revision, remitted the matter to the Family Court for a fresh decision.
The case
The revisionist, married to the respondent, a soldier in the EME Corps of the Army, and mother of a child from the marriage, had filed a maintenance petition under Section 125 CrPC, alleging that her husband and his family had harassed her over dowry demands and that he had later contracted a second marriage, brought the second wife home, and refused to maintain her and their child. The husband denied the allegations, contending that it was the wife who had deserted him and declined to live at his parental home, and that he had always been willing to keep and maintain her; he had also filed a petition for restitution of conjugal rights. These allegations, on both sides, were the pleadings in the maintenance case and were not, in these proceedings, adjudicated as established facts.
During the pendency of the maintenance proceedings, a decree of divorce was passed, on September 25, 2014, on the ground of the wife’s desertion. The Family Court subsequently rejected her maintenance claim, and it was that rejection which she challenged before the High Court.
A divorced wife’s independent right
The Court distinguished between two different bases of a maintenance claim under Section 125. A claim by a wife during the subsistence of the marriage rests on that subsistence, and may be defeated where she, without sufficient reason, refuses to live with her husband or deserts him. But the claim of a divorced wife stands on a separate footing: under the scheme of Section 125, a divorced wife who is unable to maintain herself and has not remarried is entitled to maintenance, and this entitlement is not lost merely because the divorce was granted on the ground that she had deserted her husband.
Relying on the line of authority, including the Supreme Court’s decision in Rohtash Singh v. Ramendri, holding that a woman against whom a decree of divorce has been passed on account of her deserting the husband can nonetheless claim maintenance as a divorced wife under Section 125, the Court held that the Family Court had committed a legal and factual error in rejecting the claim outright. Desertion, the Court reasoned, may bar maintenance for the period the marriage subsisted, but does not extinguish the right of a divorced wife to be maintained thereafter, if she is unable to maintain herself and has not remarried.
What the Court directed
Applying this, the Court held that even if the revisionist was not found entitled to maintenance for the period before the divorce, on account of the desertion, she was entitled to seek maintenance from her husband from the date the divorce became effective, September 25, 2014. It further held that her minor son was entitled to maintenance until he attains majority, from the date of filing of the petition, subject to an adjustment for any period during which the son had already received maintenance from the Army authorities, so as to avoid a double payment for the same period.
The Court set aside the impugned order and remitted the matter to the Family Court for a fresh decision on the maintenance petition in the light of its observations, directing the parties to appear before that court. It also recorded that the interim maintenance of Rs 4,000 per month already paid to the revisionist under an earlier order of the High Court would be set off against any arrears of maintenance ultimately awarded. The revision was allowed on these terms.
Why it matters
For women navigating maintenance after a divorce, the ruling clears up a common misconception, that a wife found to have deserted her husband, and divorced on that ground, is left with nothing. Section 125 CrPC extends its protection not only to a wife within a subsisting marriage but expressly to a divorced wife who has not remarried and cannot maintain herself. The two claims are governed by different considerations: what disentitles a wife during the marriage, such as desertion or a refusal to cohabit without sufficient reason, does not automatically carry over to bar the independent, post-divorce claim of a divorced wife.
The order also marks out the timeline of the entitlement. A wife who deserted her husband cannot claim maintenance for the period the marriage still subsisted; her right, on this reasoning, begins from the date of divorce. From that point, so long as she remains unmarried and unable to support herself, the obligation to maintain her revives in the form of a divorced wife’s entitlement. The position of a child is separate and stronger still: a minor child’s right to be maintained by a parent is not affected by the disputes between the spouses, and continues until the child attains majority, subject only to adjustment for maintenance received from another source, here, the Army.
It should be kept in mind that the High Court has not itself fixed any amount; it has corrected the legal error in rejecting the claim and sent the matter back for the Family Court to decide afresh, assessing the wife’s inability to maintain herself, the husband’s means, and the appropriate quantum, in light of the principles the High Court laid down. The allegations of dowry harassment and of a second marriage remain the parties’ contentions in the maintenance case, to be weighed by the Family Court, and nothing in this order determines their truth or the criminal liability, if any, of anyone.
Case Title: Smt. Suneeta v. State of U.P. and Another [Criminal Revision No. 254 of 2019]
Bench: Justice Ram Manohar Narayan Mishra, High Court of Judicature at Allahabad, Lucknow Bench
Reserved: June 19, 2026 | Delivered: September 18, 2026
Appearances: Advocate Shankar Lal Pandey, with others, for the revisionist; Government Advocate for the State and Advocates for the respondent.
Status: Revision allowed. Family Court’s rejection of the maintenance claim set aside; divorced wife held entitled to maintenance from the date of divorce and the minor son till majority; matter remitted for fresh decision on quantum.