Woman Who Deserted Husband Not Entitled to Past Maintenance for Period of Separation: Kerala HC [Read Judgment]

Kerala: The Kerala High Court has observed that a woman who has deserted her husband is not entitled to claim past maintenance for the period during which she lived separately from him.

A Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar made the observation while partly allowing matrimonial appeals filed by the husband against a common judgment of the Family Court, Muvattupuzha.

The case arose out of two original petitions filed before the Family Court. While the husband had approached the Family Court seeking dissolution of marriage, the wife filed a separate petition seeking return of money and gold ornaments allegedly entrusted at the time of marriage, along with a claim for past maintenance for herself and the minor child.

By a common judgment, the Family Court granted a decree of divorce on the ground of desertion. It also allowed the wife’s claim for return of gold ornaments and money and awarded past maintenance to both the wife and the minor child. Though the husband succeeded in obtaining a decree of divorce, he challenged the grant of past maintenance to the wife before the High Court.

Before the High Court, the husband contended that once the Family Court had recorded a finding of desertion against the wife and granted divorce on that ground, she was disentitled from claiming past maintenance for the period of separation. It was further submitted that the finding of desertion had attained finality, as the wife had not preferred any appeal against the decree of divorce.

On the other hand, the wife argued that the Divorce Act, 1869 does not expressly state that desertion must be without reasonable cause and, therefore, the mere finding of desertion would not automatically disentitle her from claiming maintenance.

After examining the statutory scheme and precedents, the High Court held that the expression “desertion” under the Divorce Act cannot be interpreted in a purely literal manner. The Court observed that desertion necessarily implies abandonment without reasonable cause, and a contrary interpretation would lead to unconstitutional consequences by penalising a spouse who lives separately for justifiable reasons.

The Court noted that once the decree of divorce on the ground of desertion had become final, it must be presumed that the wife deserted the husband without reasonable cause. In such circumstances, the conduct of the wife becomes a relevant consideration while deciding her entitlement to maintenance.

Referring to Section 37 of the Divorce Act, which mandates that the conduct of the wife must be considered while awarding alimony, the Court held that the Family Court erred in granting past maintenance to the wife despite a categorical finding of desertion against her.

Accordingly, the High Court set aside the direction to pay past maintenance to the wife, while upholding the award of maintenance granted to the minor child and the directions relating to the return of money and gold ornaments.

Appearances:
Advocate M.P. Ramnath appeared for the appellant-husband. Advocate N.K. Subramanian appeared for the respondent-wife.

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