Calcutta High Court | Maintenance Under Section 125 CrPC Cannot Be Denied for Husband’s Unemployment | Mere Inability to Adjust With In-Laws Leading Wife to Live Separately Is Not Mental Cruelty
Sanchayita Lahkar
The High Court at Calcutta Single Bench of Justice Dr. Ajoy Kumar Mukherjee set aside the Family Court’s order declining maintenance and directed the husband to pay his wife ₹4,000 per month under Section 125 of the Code of Criminal Procedure. The Court held that an able-bodied husband cannot avoid his statutory obligation by citing unemployment, and that modest earnings of the wife do not bar entitlement to support. It further clarified that a wife’s choice to live separately due to difficulties with her in-laws does not amount to mental cruelty under Section 498A of the Indian Penal Code
The proceedings arose from a matrimonial dispute following the marriage of the parties solemnised under the Special Marriage Act, 1954 on 4 August 2012. The wife alleged that after registration, the husband assured a social marriage ceremony would follow and that she would be permanently taken to her matrimonial home. The couple stayed together intermittently at the wife’s paternal home, and the marriage was consummated. The wife alleged repeated requests to the husband and his parents to take her to her matrimonial home were ignored. In August 2013, the husband allegedly stated that his parents were unwilling to accept her. The wife claimed that when she expressed willingness to live with him in Panagarh, the husband and his family demanded mutual divorce and denied her entry to her matrimonial home at Taltala, Kolkata. Her stridhan articles were allegedly withheld.
On 16 August 2013, the wife lodged a written complaint. She subsequently filed a petition under Section 125 Cr.P.C. seeking Rs. 10,000 per month as maintenance and interim relief. The Family Court granted interim maintenance of Rs. 4,000 per month and litigation cost of Rs. 5,000 by order dated 6 January 2015. Challenges by the husband were rejected by the High Court and later by the Supreme Court. Parallel proceedings were initiated: under Section 12 of the Protection of Women from Domestic Violence Act, 2005, where interim relief of Rs. 1,500 and Rs. 3,000 towards accommodation was granted; and a matrimonial suit by the husband for nullity on grounds of refusal to consummate, which was dismissed. An alimony pendente lite application by the wife in the matrimonial suit resulted in a grant of Rs. 4,000 monthly and Rs. 10,000 litigation cost, affirmed up to the High Court.
The wife contended that the Family Court’s dismissal of her main maintenance application was mechanical, arbitrary, and ignored the husband’s status and her financial hardship. She argued that the principle of social justice underpinning Section 125 Cr.P.C. was disregarded. She further submitted that her limited income of Rs. 12,000 did not absolve the husband’s responsibility. The husband, on the other hand, claimed that though the marriage was registered, the parties never lived together and the marriage was not consummated. He argued that the wife was a working woman with sufficient income and that he had been unemployed since 2014 after termination from his service.
Justice Mukherjee stated that in order to succeed under Section 125 Cr.P.C., a petitioner must prove four factors: "(i) The petitioner is the wife of the opposite party. (ii) Such wife is unable to maintain herself. (iii) The opposite party husband have sufficient means. (iv) He has refused and neglected to maintain his wife."
The Court noted: "there are allegation and counter allegation and during evidence it has practically become oath Vs. Oath." The Court stated that the wife admitted income of Rs. 12,000 per month, while the husband was an able-bodied person claiming unemployment. The Court recorded that interim relief had been granted earlier in different proceedings despite the husband’s defence being the same.
Justice Mukherjee observed: "One of the tests for making sound order is the probability of it being executed. No useful purpose is ever served by directing a poor penniless person to maintain his wife who has at least some income."
The Court observed: "His decision to remain unemployed cannot be used as a shield against his legal obligation and also cannot be a ground for compelling the wife to survive her hardship ignoring the lifestyle and strata of the wife, which she is entitled to."
The Court noted: "The issue of maintenance can hardly be decided on pleadings and the court below with some amount of guess work and on the basis of scanty material which does not disclose the correct details have come to an objective assessment in favour of not granting maintenance to the petitioner/wife."
The Court observed: "an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard."
Justice Mukherjee recorded: "The mere fact that the petitioner/wife is earning some amount of money to survive, since she has been allegedly thrown out of her matrimonial home, cannot be a reason to deny maintenance, which is husband’s social, legal and moral responsibility."
The Court stated: "The impugned order passed by the Family Court dated 8th June, 2023 in Misc. Case no. 62 of 2013 is hereby set aside. The husband/opposite party herein is directed to pay Rs. 4,000/- per month from the date of filling the maintenance application towards maintenance to the wife within 10th of each succeeding month." Arrears be cleared: "by twelve equal monthly instalments within 31st October, 2026, failing which the petitioner/wife shall be at liberty to execute the order before the executing court in accordance with law."
Advocates Representing the Parties:
For the Petitioner: Mr. Satadru Lahiri, Ms. Mahua Chattopadhyay, Mr. Safdar Azam
For the Respondents: Mr. Sandipan Ganguly, Mr. Debajyoti Deb, Mr. Shyamal Mondal, Mr. Somdyuti Parekh
Case Title: Rinki Chakraborty Nee Das vs. The State of West Bengal & anr.
Neutral Citation: 2025: CHC-AS:1792
Case Number: CRR 2556 of 2023
Bench: Justice Dr. Ajoy Kumar Mukherjee
