Husband living with another woman still ‘duty-bound’ to provide residence to wife: Himachal Pradesh High Court

“The learned trial Court had rightly awarded the maintenance at the rate of Rs 1000 per month (additional to Rs 2000) to the applicant. She was compelled to reside separately from the respondent, and the respondent was duty-bound to provide residence to her. Therefore, the learned trial court had rightly passed an order for providing the residence. There was no infirmity in the order passed by the learned trial court; hence, the appeal was dismissed,” the May 4 order read. 

Justice Rakesh Kainthla noted that the husband admitted that he was living with another woman.

‘Residence order justified’

• The high court noted that the husband admitted that he was living with another woman and claimed that the second marriage had been performed at the wife’s suggestion.
• The Himachal Pradesh High Court noted that the wife was previously receiving Rs 2,000 monthly maintenance and observed that the amount was “hardly sufficient” considering the prevailing minimum wages fixed by the state government.
• The Himachal Pradesh High Court pointed out that there is no bar in claiming maintenance under the different laws, and the wife was within her rights to claim maintenance from the husband under the Protection of Women from Domestic Violence Act, 2005. 
• The high court found that the husband failed to prove that the wife had any accommodation available with her. 
• The Himachal Pradesh High Court, therefore, found that the trial court was justified in providing a residence order in favour of the wife.
• The high court dismissed the revision petition filed by the husband and upheld the appellate court’s order of September 2016.  

30 years of marriage, second marriage 

The facts giving rise to the present plea were that the wife filed an application under the Protection of Women from Domestic Violence Act 2005 (DV Act). It was asserted that the wife was the legally wedded wife of the man. 

The marriage between the couple was solemnised about 30 years before filing the petition, according to Hindu rites and customs. It was alleged that the husband started humiliating and harassing the wife soon after the marriage. 

The husband allegedly developed extramarital relations and ousted the wife from her matrimonial home. It was also claimed that the husband failed to provide any maintenance to the wife.

Subsequently, the wife filed a petition seeking maintenance, and the court directed the husband to pay her Rs 2000 monthly.

The wife, however, claimed that she is residing in her parental home, which is not sufficient for her residence, and she had to rent an accommodation.

It was further added that the wife is unemployed, while the husband had retired as Naib Subedar from the Indian Army. 

The wife claimed that he was getting more than Rs 25,000 per month as a pension and has a land in his name, and he is getting Rs 5000 per month from agricultural activities. 

The wife claimed that the husband had a total income of more than Rs 38,000 per month and prayed that monetary relief, a residence order and a restraint order be passed in her favour.  

The trial court partly allowed the wife’s plea in January 2016 and granted a protection order, residence order and additional maintenance of Rs 1,000 per month under the DV Act. The appellate court upheld the order.

Challenging these concurrent findings, the husband approached the Himachal Pradesh High Court through a criminal revision petition. 

Arguments 

Appearing for the petitioner, advocate B S Chauhan argued that the wife was already getting the maintenance at the rate of Rs 2,000 per month from the husband, which was sufficient to maintain her. 

Chauhan added that his client has to maintain his second wife and the children, which was not appreciated by the family court.  

It was further added that the wife had left her matrimonial home without any justifiable reason, and the family court erred in awarding maintenance in her favour. 

It was also added that the wife had filed a false petition to harass the husband. 

Representing the state, advocate Atul Verma submitted that the husband admitted the solemnisation of a second marriage, which is sufficient for the wife to reside separately from him and claim maintenance.

It was further added that the wife had no residence, and the family court rightly passed the residence order.