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Maintenancevictim (Own)     30 October 2014

Query on section 13 2 iii of hma

Hi

Section 13 2 iii HMA states that " wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

 
24 [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; "
 
My query to the legal experts is whether this is applicable on all maintenance orders passed against the husband or if this is applicable only to those cases where the maintenance order is passed by the courts after establishing that the husband has wilfully neglected the wife.
 
Further, will this be applicable if the husband contests the maintenance order in a higher court?


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 2 Replies

Adv. Chandrasekhar (Advocate)     30 October 2014

1.  To get the benefit of this section the following are the requirements:

(a)  the maintenance order shall be passed under Section 18 of HAMA or Section 125 Cr.P.C.  Only these two Acts apply.  Maintenance order passed under any other Act, like S. 24 or DV Act will not attract this section.

(b) the maintenance order  can be either interim or final.  It can be either order or decree. 

(c) only women can get benefit of this section.   Men are not entitled to file divorce petition under this section.  Men who obtained maintenance under Section 24 cannot get benefit. 

(d) there shall be no cohabitation one year from the date of order/decree. 

There are not so many cases on this provision.  I attach one Delhi H.C. judgment for your reference.


Attached File : 107577054 13.doc downloaded: 66 times

Maintenancevictim (Own)     12 November 2014

@ Adv Chandrasekhar - Thanks for the above.

I have a related question for all legal experts - so basically this section says no co-habitation for one year after award of maintenance means its a ground for divorce. In other words, can we say that based on this section that it is not necessary that wife has to live separately even after MC order is passed?

So, if seen in conjunction with CrPC 125, does it mean that even after a MC order is passed, wife can still stay with the husband? Can a husband demand , not just request, co-habitation in CrPC 125 based on this section?


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