Husband Still Liable To Maintain Ex-Wife After Divorce? Calcutta High Court Says She Remains A ‘Wife’ Until Remarriage

A husband had already obtained an ex parte divorce, but could his former wife still continue maintenance proceedings against him? The Calcutta High Court has explained that divorce ends the marriage but not the statutory maintenance liability.

KOLKATA: The Calcutta High Court has held that merely obtaining a divorce decree does not automatically end a husband's statutory obligation to maintain his divorced wife if she has not remarried and satisfies the legal requirements for maintenance.

At the same time, the Court gave important relief to the husband by holding that his major unmarried daughter, who had no physical or mental abnormality, could not claim maintenance under Section 125 CrPC merely because she was unmarried.

Justice Uday Kumar partly allowed a criminal revision filed by Samar Paul, who had challenged maintenance and execution proceedings initiated by his wife, Jyotsna Paul, before the Judicial Magistrate, 1st Court, Uluberia, Howrah.

The couple married on February 11, 1995 and had two children. Their daughter, Sangita Paul, was born on October 15, 1999. After serious matrimonial disputes arose, the wife initiated criminal proceedings following an incident in July 2018. The husband later filed matrimonial proceedings seeking divorce.

Meanwhile, in 2019, the wife initiated proceedings under Section 125 CrPC. An interim maintenance order directed the husband to pay ₹3,500 per month, consisting of ₹1,500 for the wife and ₹2,000 for the daughter.

The husband's matrimonial case proceeded ex parte, and the court passed a decree of divorce on June 20, 2022. The wife then applied under Order IX Rule 13 CPC to set aside the ex parte decree.

The husband argued before the High Court that once the marriage was dissolved, his former wife could no longer claim maintenance as his wife.

The High Court rejected this argument. It referred to Explanation (b) to Section 125(1) CrPC, under which the expression “wife” also includes a woman who has been divorced by her husband, or has obtained divorce from him, and has not remarried.

The Court held:

“The dissolution of a marriage, even though a decree secured by the husband, does not ipso facto wipe out his statutory obligation to maintain his former wife,”

The Court relied upon the Supreme Court decisions in Vanamala v. H.M. Ranganatha Bhatta and Rohtash Singh v. Smt. Ramendri, which recognise the statutory right of a divorced woman who has not remarried to seek maintenance under Section 125 CrPC.

The High Court, however, did not accept disputed claims about the parties' income and property at the revision stage.

It observed:

“The factual disputes concerning rental incomes, property ouster, and the merits of the pending setting-aside application under Order 9 Rule 13 of the Code of Civil Procedure... are matters meant for trial,”

The husband succeeded on an important part of his challenge concerning his daughter. She had already become a major in October 2017, nearly two years before the maintenance case was filed, and there was no claim that she suffered from any physical or mental disability.

Under Section 125(1)(c) CrPC, a major child can claim maintenance under this provision when a physical or mental abnormality or injury makes the child unable to maintain itself.

Following the Supreme Court ruling in Abhilasha v. Parkash, the High Court held that the daughter's maintenance under Section 125 CrPC could not continue.

The Court said:

“Her inclusion in the maintenance order is therefore wholly without jurisdiction and cannot be sustained in law,”

The Court clarified that an unmarried Hindu daughter may independently seek maintenance under Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956, subject to that law's requirements. However, that separate civil right cannot enlarge the scope of Section 125 CrPC.

The High Court also examined the coercive recovery proceedings against the husband. Distress warrants were issued after disputes arose over maintenance arrears. The husband claimed that he had lost his livelihood, while the wife claimed that he continued to run a business and had sufficient financial means.

Referring to Rajnesh v. Neha, the Court found that such conflicting financial claims required proper determination rather than assumptions. It held that execution proceedings could not become a “blind, punitive tool”.

The Court therefore stayed the coercive execution proceedings and distress warrants, subject to the husband depositing 50% of the genuine accumulated arrears payable to the wife, after excluding the daughter's share, within four weeks.

The revision was accordingly partly allowed, and the Magistrate was directed to decide the main maintenance proceeding through a reasoned final order as early as possible.

EXPLANATORY TABLE OF LAWS AND SECTIONS

CASE DETAILS

KEY TAKEAWAYS

1. Divorce Over, Liability Not Over: An ex-wife can still claim maintenance if she has not remarried.
2. Adult Daughter Is Not Endless Liability: A healthy major daughter cannot claim under Section 125(1)(c) merely because she is unmarried.
3. Men Must Pay Only What Law Requires: The Court struck down the adult daughter’s legally unsustainable maintenance.
4. Maintenance Cannot Become Punishment: Recovery cannot turn into a “blind, punitive tool” against the husband.
5. Husband Is Not an Unlimited ATM: Liability must follow law and proven finances, not assumptions.