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The Supreme Court has recently observed that the maintenance can be claimed by a judicially separated by wife.
The women was granted the maintenance by the trial court but the order of maintenance by the trial court was reversed by the Patna High Court and thus the present case was filed by the woman against the order of Patna High Court.
The husband submitted before the court that because decree of judicial separation has already been obtained by him and his wife and therefore his wife is not entitled to maintenance as per the section 125(4) of the Code of Criminal Procedure, 1973. The case was heard by Justice Madan Lokur and Justice Dipak Gupta.
Rejecting the submission of the husband, the court said that there is no point in the argument put forth by the husband, if the divorced wife is entitled to maintenance and then so is a wife who is judicially separated.
The court further said that while deciding the plea of maintenance the HC should sought answer to the question whether the wife is entitled to maintenance or not. The rejection of maintenance by the HC merely because trial court in its order did not record that wife is unable to maintain herself.
The matter has been remanded back to Patna HC by the Supreme Court with a note that the wife has not been paid maintenance for last nine years.
The High Court had rejected the maintenance to the wife based on two points- that there should be a finding that the wife is unable to maintain herself and husband neglect or refuse to maintain the wife even when he has sufficient means to do so.