Maintenance cannot be denied to a wife living separately if she has sufficient grounds

Asmita Kuvalekar | Government Law College, Mumbai | 30th April 2020. 



Saygo Bai, mother of two minor children, filed for maintenance against her husband Chueeru Bajrangi (the children’s father), alleging that he had taken a second wife. This application was made under Section 125 of the Criminal Procedure Code, 1973. She accused him of neglecting her as well as their children. Despite a cordial relationship till 1989, the marriage broke down when the Respondent started avoiding his family and eventually took a second wife in 1990. Subsequently, the appellant and the two minors were thrown out of the house. 

On the other hand, the Respondent accused Saygo Bai of leaving the matrimonial house and refusing to come back to marital life, five years before he was compelled to take a second wife for the sake of his children. He further submitted that during their marital strife, the children were always with him and therefore, no question of abandonment of the minors could arise. 

This case assumes importance not only for the Supreme Court’s interpretation of Section 125 CrPC but also for its reappreciation all the evidence to come to a final decision. 


  1. Whether a wife loses her right to maintenance because she lives separately? 


The Court noted that the appellant as well as her witnesses unequivocally stated that the second marriage contracted by the Respondent during the pendency of the first was a fact. One of her witnesses also testified in support of the Appellant’s claim that she was thrown out of the house. The Respondent on his behalf stressed upon the fact that Saygo bai left for 5 years, leaving their married life and children behind. She gave no reason for the same and did not come back despite her his bidding. She waited for 5 years till the second marriage was contracted and then filed a maintenance application. 

Having noted these facts, the Supreme Court turned its attention towards the judgements from the lower courts which ultimately led the parties to its doorstep. It was appalled to see that the Trial Court raised questions on Saygo Bai’s failure to report her troubles to the Panchayat. The Trial Court further held that she did not approach the Court with clean hands as she abandoned her children and falsely averred that her husband threw her out. It was concluded that she had no reason to leave the marital home the way she did and she had no right of maintenance left as her minor children cannot be said to be dependent upon her. Her application was dismissed while upholding the second marriage of the Respondent. 

In a revision against this judgement, it was submitted on behalf of the then Petitioner (here, appellant) that even if the 5 years period of separate living was accepted, she was still entitled to maintenance from the date of the application on grounds that she could live separately because of her husband taking another wife. This submission was rebutted by Chueeru. He pleaded that he was rendered helpless because of her abandonment and had to marry again for the children’s welfare, not for his own sake. The Revision Court accepted his plea and held that his second marriage was compelled by the wrongful actions of Saygo Bai. The same arguments were raised before the High Court, invoking its inherent jurisdiction under Section 482 CrPC. Once again, the appellant’s claim was overturned. It was held by the High Court that she did not leave the marital home because her husband married someone else. Rather, he married another woman because she left him for no reason discernible, in total violation of her marital obligations. 

The Supreme Court expressed its shock at the above judgements where all three Courts failed to interpret Section 125 CrPC and the second proviso to Section 125 (3) correctly. The second proviso to Section 125 (3) states that if a wife refuses her husband’s offer to stay with him in return for maintenance on a just and proper ground, the Magistrate may order maintenance in her favour irrespective of the offer having been made. The adjoining explanation clarifies that a just ground to refuse such an offer by the husband is his marriage to another woman. All three judgements erroneously ignored this proviso and focused instead on sub-section 4 which takes away a woman’s maintenance rights if her adulterous comportment can be proved, if the separation is by mutual consent or if her reason to stay away from the marital home is not sufficient. 

In the present case, the second marriage of the Respondent was never disputed. In fact, the Respondent admitted to the same in his written statement. Whatever his justification for the second marriage may be, the mere fact that he had taken a second wife was enough grounds to award maintenance to Saygo Bai. All three courts seriously misinterpreted the law by holding that the second marriage was valid because the husband was alone for 5 years. Furthermore, they decided that even if the second marriage was contracted, Saygo Bai should be denied maintenance because she left the marital home earlier. 

In that regard, the Court re-examined the evidence on record and acknowledged the honest character of the woman whereby she admitted that the children were with her the first 4 years of separation while the last was spent with their father. She also stated that the Respondent was educating their children. Only during her cross-examination did she say that she lived separately for 4-5 years and then her husband married another woman. On this statement alone, all 3 Courts decided against her. The Supreme Court deemed the same as a “perverse appreciation of the evidence”, explaining that one statement cannot overrule an entire testimony. Evidence should be considered in its entirety and not in isolation, not in bits and pieces. To ignore a whole body of testimony wherein the appellant specifically detailed being thrown out of the house to focus on two stray sentences in her cross examination is a wrong approach in appreciation of evidence. Additionally, blaming the wife for not calling a Panchayat in no way justifies the husband’s act of contracting a second marriage and throwing her out. To say that once a woman has left the marital house, her right to maintenance is forever waived is a stance that simply cannot be upheld in law. 

The fact of the second marriage clearly entitles her to some maintenance and her earlier refusal to live with her husband would not affect the same. Moreover, it is unnatural for her to have left her children behind when she decided to live separately. In fact, she even admitted that at the time of her application, her children were being looked after by the second wife; a statement that shows honesty on her part. All these factors were completely overlooked by the Courts before.  

In light of its observations, the Apex Court explained that although it doesn’t appreciate facts at this stage, this case warranted a change of policy because of the perverse and twisted reading of facts. It decided in Saygo Bai’s favour. Acknowledging that she was living in extreme poverty without even an interim maintenance, the maintenance amount was also fixed so as to save her the trouble of waiting some more. 

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