Can wife file 498a case against husband after mutual divorce ?

906 votes

A decree of divorce obtained by a person, either ex-parte or after effective contest, would not absolve him of the liability to pay monthly maintenance amount to his wife if such amount had been awarded by a judicial magistrate by invoking Section 125 of the Code of Criminal Procedure, the Madras High Court Bench here has held.

Justice M. Venugopal passed the ruling while disposing of a criminal revision petition filed by a Tuticorin shopkeeper challenging an order passed by a judicial magistrate in Tiruchendur on July 21, 2011 directing him to pay Rs. 2,000 a month to his estranged wife. The petitioner claimed immunity from paying the amount on the basis of a divorce decree obtained by him on August 14, 2009.

Disagreeing with the plea taken by him, the judge pointed out that Section 125 of Cr.P.C. empowers a judicial magistrate to direct an individual to pay monthly allowance for the maintenance of his wife, children (both legitimate and illegitimate) and parents if there was sufficient evidence to prove that he had either neglected or refused to maintain them.

An explanation appended to the provision defined the term ‘wife’ to include even a woman who had been divorced by or had obtained divorce from her husband and had not remarried. Further, Section 127 of Cr.P.C. states that a maintenance order could not be altered unless the woman had remarried or given up her claim voluntarily or agreed for receiving a lump sum amount as per personal or customary law.

Therefore, “Divorce per se is not a ground for alteration in maintenance allowance and a decree of divorce obtained by the petitioner on the ground of desertion cannot affect the order of maintenance under Section 125 Cr.P.C.,” the judge said and directed the petitioner to pay entire arrears of maintenance amount to his wife within six weeks.

Stating that generally a woman, having no independent means of income, was entitled to one-fifth or one-third of the husband’s income, the judge said that in the present case, the petitioner had failed to prove that his wife had sufficient means to maintain herself. On the other hand, there was sufficient evidence in the present case to prove that the petitioner had neglected to take care of his wife.

One of the witnesses before the lower court had concurred with the claim made by the petitioner’s wife that he had asked her to live in a thatched shed without toilet and electricity supply despite having sufficient means to provide a better housing. Even the petitioner himself had admitted that he never use to bother whether his wife had taken food or bath.

“From this, it is quite clear that the petitioner had not evinced interest about her daily needs or welfare. The petitioner/husband has not performed his matrimonial duty of attending to the needs of the respondent/wife in this regard,” the judge observed. However, he reduced the monthly maintenance amount to Rs.1,500 as the shopkeeper was suffering from a physical abnormality.

I hope this should give you an idea.

Advocate Aveek Bose LawRato

751 votes

Sir, I suppose you are talking about Sec.-498A of Indian Penal Code not, Sec-498 of IPC. Let me know how many years back the old case was lodged? First, you have to know whether police already completed its investigation or not. If already completed, collect the copy of Charge Sheet. It is true that your ex-wife can not file any 498A case after divorce. But, old case is regarding a past offence. Police has no bar to investigate it if the date of occurrence is not too old. Consult a criminal lawyer for further details.Thank you.

Advocate Aniket Joardar LawRato

712 votes

This is just a matter of course. May be some ulterior aspects are been activated here. We can always get you the best of relief, but for that we need to sit down and strategize. You can get the contact details from the site. Feel free to contact.

Advocate Debangshu Dinda LawRato

510 votes

Good question.
Look, once the Marriage tie has been dissolved in between the Parties. Then the gravity of the section 498(A) IPC will lose its force. But the Court in which the 498(A) is pending, who he knows it that, Divorce already been done in between the parties.
It is the duty of the Accused to submit Certified Copy of the Judgment before the Magistrate Court in which said 498(A) is pending at the time of Prosecution Witness.
If you ex wife did not agree to withdraw the Case. Don't worry about it. At the time of Cross Examination, you Advocate definitely put the question relating to the Mutual Divorce and that time, the 498(A) loose its gravity.
So, don't take any sort of tension. Best of luck. Ok, Thanks you.

Advocate Sanjoy Acharjee LawRato