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ratna chaudhuri (adg)     18 May 2013


wife is working and is a cancer patient. husband is a senior govt. officer. husband filed the divorce case on cruelty and desertion ground and won the case. he got remarried within a month of decree. wife wanted to book a flat as she is not staying in the house constructed by her husband. can she asked for amount of money needed to purchase the flat as alimony. she is a cancer patient and she is not in a position to purchase the flat or repay the loan to purchase the flat. if yes, then how much she can get?


 11 Replies

Adv Archana Deshmukh (Practicing Advocate)     18 May 2013

The wife may not get anything. You said that the wife is working but did not mention whether there is any appeal filed by the wife against the decree, so from the given facts, I assume that there is no appeal filed and the only concern here for the wife is alimony for the purchase of flat. A wife cannot get alimony merely bcoz she is a cancer patient, bcoz point to be noted here is that the husband has successfully got divorce on the ground of desertion. The wife who herself wilfully deserts her husband without reasonable cause is not entitled to alimony from him. There are judgments of SC and HCs to that effect.

ajay sethi (lawyer)     18 May 2013

when was divorce decree passed? did wife contest divorce proceedings ? has wife filed appeal against said order? you have not mentioned how much is wife earning and what is husband salary? if wife wilfully deserts her husband is not entitled to maintenance .

Vinayak (self)     18 May 2013

whaaat ? 

this wife just deserted the husband ??

did she NOT file other cases like 498a ? DV case etc etc which are generally filed these days 

What's the matter ?

unable to understand anything 




satya prakash (Clerk)     18 May 2013

Dear Vinayak

Looks like u r new to this forum or you just joined this forum time passing, nowadays its quite common wife is Deserting husbands life later files so many false cases

ratna chaudhuri (adg)     19 May 2013

wife filed an appeal against the decree at high court. it was a contested case.Now husband wants to convert the case as mutual consent case and is puting condition that he will give alimony and wants to  convert the case if  wife will not file any case against him as there are incidences that wife had already reported to CAW Cell  before husband filed the case  and informed the police against the husband as he is threatning her.So husband wants to withdraw the cruelty ground but desertion ground he do not want to withdraw. desrtion ground was allowed in the lower court when wife was staying at govt. quarter while husband being a senior govt officer left the govt. residence and stayed at rented accommodation.

Tajobsindia (Senior Partner )     19 May 2013

1.    Your first brief does not tally with last one at all.

2.    If there is no Order in Appeal from a superior Court how one can convert already decreed case into that of mutual consent and again seek decree and that also removing one reason out of the two based on which earlier decree sheet made by trail Court?
Under the Appeal a superior Court should explicitly mention 'stay' or give finding of ‘set aside’ then only thoughts of mutual consent creeps up but I am not able to understand how in your last reply that is happening as private offer from husband side? You need to share little more if you feel like in open forum to understand your questions in better light.

3.    Also if the accommodation was in wife’s name (say) then husband cannot live in wife’s allotted government accommodation as ‘rights’ and several Court decisions are there to such effect. If it (accommodation) was not so (means it was in husbands name) and wife did not live in it then the finding itself speaks how case got decreed and I need not have to add anything more to it.

However, I have a persuasive thought seeing your medical condition than ignoring needs for roof to be straight forward here, that is hope should not be lost of a patient ex wife, you can plead for issuing directions to trial Court to re-look alimony rights based on pecuniary grave medical conditions (omitting from pleadings needs for flat – installments blah blah).
I feel if plead well at Hon’ble HC you may have chance to get alimony inspite of trial Court decreeing suit on ‘desertion’ as well as on ‘mental cruelty’ grounds for a persuasive reason I will tell those here;  law says after passing decree one should wait for its Appeal period before re-marriage which is a very strong ground herein to get admission of your appeal ( I’m assuming that is how Appeal got admitted). Now since such check and balances in Law is there husband is worried about his immediate re-marriage status which he did immediately withotu waiting for appeal period limitation and he feels shaky may be superior Court may 'set aside' trial Court decree or in leave send case for afresh view back to trial Court and further r/w that he has got divorce + remarried but still some CAW case pending as you inform us in your second reply so such divorce – remarriage are still not peaceful ending to him!
That may be the reason he is offering MCD but I still donot understand how that may happen without a superior Court giving any finding?
Coming back to alimony persuasive pleadings when such faulty offers (for MCD - remove one grounds and retain another in decree) from husbands side is in air I recall several cases from Hon’ble SC where in a null and void - meaning non-existent in eye of law or non est marriages, ex-wife have been granted alimony to which everyone will say in a null and void marriage where the marriage itself never existed how alimony can be given similar to what @ Archana sais I do agree to her that in a desertion finding no alimony to wife, but the reasoning given for allowing alimony by Hon’ble SC in null and void cases are; it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent for such and such reasons (here your reason is terminal illness which is not alien to what Hon'ble SC even says); it is with the purpose of not rendering a financially dependent spouse destitute that S. 25 HMA (alimony) enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship etc. etc.
Coming back to yoru two briefs; I see here is a case most probably or for sure during and or even prior to litigation start your cancer (medical status) was known to husband and without getting into controversies how a trial Court arrived at desertion – mental cruelties grounds my limited persuasion point here for your favour is
OK now you refer to a decree in hand but I am for god sake ‘cancer patient’ no doubt I am earning but does this superior Court may come to an opinion that a ‘deserted – mental cruelty’ proved by trail Court ex wife should be left hanging dry in society and do I deserve such in-humane treatment that my ex-husband does not even wait for appeal period and gets himself a healthy wife before one month of passing of decree of trial Court?
This is I feel start of sound persuasive statement, feel free to tweak same in consultation with your advocate at superior Court and plead accordingly and I am hopeful HC will definitely look into a particular Article of COI and grant some relief in your favour pertaining to ‘alimony’ provided your side speak – stress of your terminal illness and not flat purchase.

All the best.

ratna chaudhuri (adg)     19 May 2013

its not the wife , husband deserted wife because he had an extra marital affairs and having a son from his girl friend whom he married within a month of decree of divorce.during the time of marriage , their son was 2+ years old. husband bought a flat in his name with the financial support from wife was not allowed to enter the house because it was in the name of husband. husband filed divorce case on cruelty and desertion ground, which he won thecase. but when she was thrown out of husband's house before he filed the case  , she filed a complaint at CAW cell,which is still pending. she want to purchase a flat as she had no permnant residence to stay, she contested the case because the allegations are false. is she  eligible for alimony, as the medical expenses are very high. if she is well, then she may  not need any alimony from husband who made a false complaint just to fulfill his bad intentions.  

Vinayak (self)     20 May 2013


Dear Vinayak

Looks like u r new to this forum or you just joined this forum time passing, nowadays its quite common wife is Deserting husbands life later files so many false cases///////////

I am NOT new here

I am NOT here just for passing time or time passing

read my question carefully and you will understand

see the word NOT written in caps on my original question





ashoksrivastava (scientist)     20 May 2013

Ratna court accepted that wife deserted husband and wife believes that husband made her desert him.isn't it?

mod/admin is requested to delete this repeated post of mine which got inadvertently posted twice

regards ASHOK

ashoksrivastava (scientist)     20 May 2013

Ratna court accepted that wife deserted husband and wife believes that husband made her desert him.isn't it?

No husband can win a divorce case on grounds of desertion in Indian court if wife tells the court that she wants to join her husband. but husband is thwarting attempts of cohabitation by her.

Tmely filing of RCR  by wife would have proved your point that wife didn't desert husband  but its the other way round.

regards ASHOK


^ ^ ^

Desertion cannot be proved?

No need.

There is no law written which could make husband and wife stay together.

When things have become so worse, even if desertion cannot be proved, one can always get divorce by proving to the court that one is not willing to accept her back at any cost.  Things will take a lot of time in such cases, but eventually, court will grant divorce [ for eg: irretrivable breakdown of marriage]

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