Maintenance can not be denied on the ground of exparte decree for restitution of conjugal rights against wife

2012 CRI.L.J.2815 (GAUHATI HIGH COURT ) (AGARTALA  BENCH) S. TALAPATRA, J.                  
  Smt. Pinki Das (Sarkar) V. Swapan Sarkar. Cri. Revn. P.No.86 of 2009 D/- 23.4.2012.

Criminal P.C. (2 of 1974), S.125 (4) Maintenance-- Entitlement to Wife living separately from husband as husband was having illicit relationship with his aunt --Husband not ready to forgo that relationship--In such situation, wife's living separately from husband would not disentitle her from maintenance--Exparte decree for restitution of conjugal right would also not create an absolute bar for passing or sustaining an order of maintenance.  (Paras 18,19,20,23).

Since the respondent works as a police constable, he used to be all the time at peak of his temper and did not care for the emotion and sensitivity of the petitioner. 

It is admitted by the parties that in absence of the aunt they were leading peaceful life.  If it is shown that the parties are locked in a strife, it is no defence for the husband to say that he is prepared to take his wife back.  Unless the root of the discord is removed or the discord is otherwise resolved, it is not expected that petitioner would comprehend that on her return, no such conduct would be repeated.   In such situation, her living separately from the husband would not disentitle her from claiming maintenance. 

The exparte decree for restitution of conjugal rights does not create an absolute bar for passing or sustaining an order of maintenance.

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