Wife claiming alimony 5 years after MCD

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  • #2814

    Can a divorcee wife file for alimony under CrPc or HMA or any other, 5 years after MCD through court mediation and after getting one time full and final settlement?

  • #2825

    It may look strange, but it is true that it may perhaps be possible for a divorced wife to claim maintenance from her former husband in certain circumstances even after mutual consent divorce, and may be, when she had agreed that she would not claim maintenance in future and had agreed to take a one-time settlement.

    In fact, the Explanation (b) to Section 125(1) of Cr.P.C. clearly states that a divorced wife is also “wife” for the purposes of that section:

    “(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

    Therefore, it should legally be possible for a divorced wife to claim maintenance under Section 125 Cr.P.C. from her former husband if she has not remarried and if she is unable to maintain herself.

    Likewise, Section 25 of the Hindu Marriage Act is reproduced as below:

    25. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

    (2) If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

    (3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.”

    Sub-section 25(1) clearly shows that “at the time of passing any decree or at any time subsequent thereto” the court has the power to grant maintenance. Thus, even after passing a decree of divorce (which may also be on the basis of a mutual consent decree), the court has the legal power to grant maintenance subject to the conditions mentioned therein.

    Likewise, sub-section 25(2) also gives power to the court to modify an order of maintenance, etc., passed under sub-section 25(1), and such modification can be made “at any time after it has made an order under sub-section (1)”.

    There are some judgments to support the above view. For example, see the case of Geeta Satish Gokarna v. Satish Shankarrao Gokarna, AIR 2004 Bom 345, in which a division bench of Bombay High Court upheld the right of a divorced wife to claim maintenance under Section 25(1) of the Hindu Marriage Act, even though she had earlier agreed to the consent terms at the time of mutual consent divorce, including a condition that she will not claim any maintenance or alimony in future from the husband.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.

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