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Miss Soumya Pandey vs Dr. Girija Nand Pandey on 11 September, 2024 cites

Smt. Rohini Kumari vs Narendra Singh on 5 October, 1968

Sub-section (2) gives her a right to live separately from her husband without forfeiting her claim to maintenance provided any of the conditions mentioned in clauses (a) to (g) exist or are specified. The, essential ingredient of desertion, animus deserendi i.e. intention on the part of the deserting spouse to remain separated permanently or to bring cohabitation to an end for ever need not exist in case of a wife who has been given the right to live separately in certain circumstances without forfeiting her claim to maintenance. The Act and the Maintenance Act provide different remedies to a wife whose husband has been guilty of desertion. Under the Act she can sue for judicial separation if the conditions laid down in section 10 (1) (a) of the Act read with the Explanation are satisfied. She can without resorting to that remedy choose to live separately from her husband who would be bound to maintain her if it is proved that he has been guilty of desertion and the other conditions laid down in section 10(2) (a) are satisfied. It is significant that under section 13(2) of the Act a wife may present a petition for dissolution of marriage by a decree of divorce on the ground that the husband had married again before the commencement of the Act or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. But this can be done only if the marriage with the petitioner was also solemnized before the commencement of the Act. For instance in the present case the wife could have asked for dissolution of her marriage under the aforesaid provisions because the marriage of the husband with Countess Rita was performed before the Act came into force. If she, however, did not choose to resort to that remedy she could decide to live separately under section 18 (2) (d) of the Maintenance Act. This shows the sharp contrast in the provisions of the two enactments. When the wife chooses to live separately under section 18(2) (d) in the circumstances Page 12 of 13 mentioned before she would be entitled to maintenance from the husband. He could not compel her to return to him so long as his marriage with the other wife is not dissolved but if that marriage is dissolved the husband can call upon the wife to return to him and if she does not return it is very doubtful if she can still claim maintenance from him under section 18 of the Maintenance Act. However, this is a matter on which we need express no final opinion. All that we are concerned with, in the present case, is whether the provisions of section 18(2) of the Maintenance Act can affect the matters provided for by section 10 of the Act. It is quite obvious that section 18 of the Maintenance Act does not amend or abrogate the provisions of section 10 of the Act which alone must be looked at for the purpose of disposing of the appeal before us. We have no hesitation, therefore, in upholding the view of the High Court with the result that the appeal fails and it is dismissed. The parties are left to bear their own costs in this Court."
Allahabad High Court Cites 14 - Cited by 20 - Full Document
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