Legally speaking, she may be entitled to seek maintenance for the minor son who is living with her, even after filing of son’s custody case by you. However, it is up to the court whether or not to order maintenance, depending on the facts of the case.
For example, please note that a Proviso to Section 125(3) of the Criminal Procedure Code provides as under:
“Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”
This shows that the Magistrate can order maintenance in favour of the wife even if the wife refuses to live with her husband provided he is satisfied that she has a just ground for so doing. In your case, the maintenance is for the minor son, which may be on a better footing perhaps as there appears to be no such restrictive provision for such maintenance.
However, as I mentioned above, ultimately it is for the Magistrate to decide whether it is just to order maintenance for the minor son in the given facts and circumstances of the case.
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. List of his Quora Answers. List of his YouTube Videos.
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