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Anonymous
Asked August 03, 2016

Divorce, desertion and Alimony

  • 1 Answer
  • 361 Views

My wife left me in 1996 leaving my twin children aged 3 years with me.She went away with another man which she has admitted in a letter written to me and also said sorry for leaving me like this.This letter has been produced in court and she has admitted this in court. I have brought up my children from age 3 years till date all alone.She was working in faridabad all these years and in spite of trying my level best she did not come back. She is well qualified and has worked for more than 15 years.Suddenly she quit her job on her own citing health grounds and filed a case after 13 years i.e. 2009 for divorce claiming interim relief under section 24 and also permanent relief. Again after 2 years of filing this case she filed another case in 2011 under DV act 15 years after sepeartion for which I am paying Rs. 8500 per month as interim relief. I also lost my job in 2011 as she wrote a letter to my employer. Now I have no fixed income. She has not been able to give any proof about torture, abuse or any such thing. Please help me by saying under desertion which is proved or leaving on her own being qualified and capable of earning is she entitled to pendente lite or permanent alimony? If she can fight 2 legal battles in two different courts why cannot she work since she is qualified and has sufficient experience?She has abandoned her own small children aged 3 years. Now she is also having a son who is illegitimate which is also proved through face book posts of both the son and the mother.She has said that the child is adopted, but does not have any paper to prove the same.Please give me correct advise so that I am not penalised for no fault of mine.If possible please cite judgements of similar cases where pendente lite was denied under section 24.I shall be highly obliged for your reply

Answer 1

In a Delhi District court case[1], the wife, at the moment, had no independent source of income and demanded for maintenance from her husband, even though she was a well qualified engineer. Accordingly, it was observed by the court that being a well qualified engineer, there was no need for the wife to sit idle at home waiting for the maintenance from the husband. It was hence, held that the wife being well qualified can earn handsome amount by working and there is no need for her to be financially dependent upon her husband, and hence, she is not entitled for any maintenance. Going on the same lines, in a judgement by the Madhya Pradesh High Court[2], it was observed that  S. 24 of Hindu Marriage Act, 1955[3] (HMA), dealing with Pendente Lite Alimony, is not meant for supporting idle yet qualified spouses, rather S. 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting herself in spite of sincere efforts. In your case, it is clear that your ex-wife is a qualified woman, capable of supporting herself and hence, pendent lite can be denied.           

Moreover, in a Delhi High Court case[4], it was observed by the court that the benefits granted under S. 24 are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA.

Firstly, for permanent alimony, inability of wife to maintain herself is an essential pre-requisite. In your case, this requirement for permanent alimony is negated in the first place as indicated by your ex-wife’s job for 15 years and her following voluntary leave from the job.

Secondly, S. 25(3) of HMA [5]clearly sets down that the court can rescind an order of permanent alimony in case of the wife not remaining chaste, i.e., not abstaining from extramarital sexual intercourse. Now, based on the fact that she had admittedly left with another man and also that she has an illegitimate son out of this relationship with another man, the court can very well rescind the case of permanent alimony.

 

 

[1]  Sh. Neeraj Aggarwal v. Mrs. Veeka Aggarwal, M No. 28/07

[2] Mamta Jaiswal Vs. Rajesh Jaiswal, II (2000) DMC 170

[3] Available at: https://indiankanoon.org/doc/1449825/

[4] Manish Kumar v. Mrs. Pratibha, CM(M) 949/2008

[5] Available at: https://indiankanoon.org/doc/95286/

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