Wife Cannot Be Denied Maintenance Merely Because She Filed Restitution Petition After Husband Moved For Divorce: Bombay HC [Read Judgment]

The Bombay High Court, Nagpur Bench, on April 17, 2026 partly allowed a Criminal Revision Application filed by a husband challenging the quantum of maintenance awarded by the Family Court in favour of his wife and minor daughter, while firmly upholding their entitlement to maintenance under Section 125 of the Code of Criminal Procedure, in the matter of Criminal Revision Application No. 113 of 2024. Justice Urmila Joshi-Phalke held that a wife’s non-compliance with a decree for restitution of conjugal rights does not, by itself, disentitle her from claiming maintenance, and that the critical question is whether the husband genuinely offered to cohabit and the wife refused, a threshold that was not met on the facts of this case.

The applicant (husband) and non-applicant No. 1 (wife) were married on February 8, 2011 at Nagpur, and a daughter (non-applicant No. 2) was born from the wedlock. According to the wife, the husband was addicted to liquor, quarrelled with her on false pretexts, suspected her character and subjected her to insults and threats, while she continued to discharge her marital duties. She alleged that on November 5, 2012, he raised a quarrel over a trivial matter and directed her to leave the house, and when she accompanied by family members attempted to return on June 8, 2013, she was driven out and assaulted by her father-in-law.

The husband filed a petition for dissolution of marriage, to which the wife responded with a petition for restitution of conjugal rights. A decree of restitution of conjugal rights was passed in the wife’s favour, but she was not permitted to resume residence in the matrimonial home. The wife thereafter filed Petition No. E-477/2017 under Section 125 CrPC before Family Court No. 1, Nagpur, seeking maintenance for herself and her daughter. The husband resisted the claim, alleging that the wife had failed to comply with the restitution decree and that she was an educated, able-bodied woman capable of maintaining herself.

By a common judgment dated February 16, 2024, the learned Family Court awarded maintenance to the wife at Rs. 10,000 per month and to the daughter at Rs. 5,000 per month from the date of filing (October 9, 2017) through December 2020; Rs. 12,000 and Rs. 7,000 per month respectively from January 2021 through December 2023; and Rs. 15,000 and Rs. 10,000 per month respectively thereafter. Litigation costs of Rs. 10,000 were also imposed. Aggrieved, the husband preferred the present revision application before the High Court.

Justice Joshi-Phalke drew a careful distinction between a wife’s “failure” to live with her husband and her “refusal” to do so within the meaning of Section 125(4) CrPC. The Court held that a refusal presupposes a genuine offer by the husband, which the wife declines. On the evidence, it was the wife who had filed the petition for restitution of conjugal rights, and who made attempts to join the husband’s company, attempts that were rebuffed by him. The husband had filed for divorce without first issuing any notice to the wife, which itself signalled his unwillingness to cohabit. The Court observed: “Refusal pre-supposes an offer whereas, in case of failure, there may not be any offer. What is relevant under Section 125(4), is a ‘refusal to live’ with the husband and not mere ‘failure to live’ with him.”

The Court reiterated that the mere passing of a decree for restitution of conjugal rights, coupled with the wife’s non-compliance, is not a determinative factor to deny her maintenance or to attract the disqualification under Section 125(4) CrPC. The question must be answered on the distinctive facts and circumstances of each case, and it must be examined whether the wife had valid and sufficient reason to decline to reside with the husband notwithstanding such a decree.

The Court firmly rejected the contention that the wife’s post-graduate qualifications rendered her an “able-bodied” person incapable of receiving maintenance. Noting the prevailing unemployment even among highly educated persons, the Court held that educational qualification alone cannot be equated with the capacity to earn or maintain oneself. Section 125 CrPC is a measure of social justice intended to prevent vagrancy and destitution, and the phrase “unable to maintain herself” refers to the actual means available to the wife, not hypothetical earning capacity.

Applying the factors laid down by the Supreme Court in Rajnesh v. Neha and Another, (2021) 2 SCC 324, the Court found that the Family Court had erred in not accounting for the maintenance of Rs. 15,000 per month already granted to the non-applicants in Petition No. A-697/2013 as directed by the Principal Judge, Family Court, Nagpur on December 2, 2016. The guidelines in Rajnesh require courts to adjust or set off amounts awarded in earlier proceedings when determining maintenance in subsequent ones. Taking into account the husband’s gross salary of Rs. 85,000 per month (as per income tax returns for 2022-23), his compulsory deductions, and his responsibility for his widowed mother, the Court found it appropriate to moderate the amounts for the period after December 2023.

The Court partly allowed the revision application and modified the maintenance order as follows:

1. The applicant shall pay maintenance of Rs. 10,000 per month to non-applicant No. 1 and Rs. 5,000 per month to non-applicant No. 2 from October 9, 2017 till December 2020.
2. Thereafter, from January 2021, the applicant shall pay Rs. 12,000 per month to non-applicant No. 1 and Rs. 7,000 per month to non-applicant No. 2, in addition to the maintenance amount already granted in Petition No. A-697/2013. The enhancement to Rs. 15,000 and Rs. 10,000 per month for the subsequent period, as directed by the Family Court, was set aside.
3. The applicant shall pay litigation costs of Rs. 10,000 as directed by the Family Court, along with a further Rs. 10,000 towards the costs of the present revision application.

Case Details
Criminal Revision Application No. 113 of 2024, High Court of Judicature at Bombay, Nagpur Bench. Before Justice Urmila Joshi-Phalke. Reserved on March 12, 2026; Pronounced on April 17, 2026. Mr. Vishwadeep Mate, Advocate for the applicant; Mrs. Jyoti Dharmadhikari, Advocate for the non-applicants.

[Read Judgment]