The main ingredients or requirements of Section 125 of the Criminal Procedure Code are as under:
(1) The husband has sufficient means
(2) He neglects or refuses to maintain his wife
(3) His wife is unable to maintain herself.
If these conditions are satisfied, then upon proof of such neglect or refusal, the Magistrate may pass order of maintenance in favour of the wife.
The Proviso to sub-section 125(3) is relevant in this regard, for your query, which is reproduced below:
“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.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
Sub-sections (4) and (5) of Section 125 are also relevant to your query, and are reproduced below:
(4) No wife shall be entitled to receive an allowance 5[for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
So, in view of what is mentioned above, the answer to your question depends on detailed facts of the case. The Magistrate has to be satisfied that the ingredients of this section are fulfilled and that maintenance needs to be awarded to her.
You may offer to maintain your wife if she lives with you, in that case you may not have to pay maintenance. If you offer to maintain her if she lives with you, in that case she will have to give some sufficient reason to live separately from you and also claim maintenance from you.
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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