Restitution of Conjugal Rights vs. Maintenance under Section 125 CrPC/ 144 BNSS

-By Atul Singh, Advocate

When a marriage breaks down, different proceedings are filed before different courts. One such remedy is the Restitution of Conjugal Rights (RCR), which is filed when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other. The aggrieved party may file a petition under the relevant provision given below and seek a decree for restitution of conjugal rights, seeking directions for the spouse to return to the marital union. In such proceedings, the burden of proving a reasonable excuse is on the person who has withdrawn. The said proceedings can be filed under:

a.       Hindus, Buddhists, Jains, Sikhs under Section 9 of the Hindu Marriage Act, 1955

b.       Christians under Section 32 of the Indian Divorce Act, 1869

c.        Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936

d.       Muslims in a suit for restitution of conjugal rights

It is often seen that the said provisions are not invoked with the real intent to reunite the spouses, but only as a legal strategy, as the initial onus will be on the spouse to prove that the separation is due to a reasonable excuse/ground. The non-compliance of the decree for restitution of conjugal rights can be a ground to seek divorce in a subsequent divorce case filed thereafter.

More than this, these proceedings are seen to be used as a shield for maintenance claims under Section 125 of the Criminal Procedure Code (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023). Under Section 125 CrPC/Section 144 BNSS, a wife, minor children, adult children with disabilities, and dependent parents, having no sufficient means, can approach the court seeking monthly maintenance from a person with sufficient means who refuses or neglects to support them. However, as per Section 125(4) CrPC, which is now Section 144(4) BNSS, no wife shall be entitled to receive an allowance for maintenance, or interim maintenance and expenses of proceedings, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. The RCR decree is expected to be used as a safeguard, suggesting that its non-compliance will disentitle the wife to claim maintenance under Section 125(4) CrPC/Section 144(4) BNSS.

The moot question is:

If a court has ordered a wife to return to the matrimony and she refuses to comply with the said directions, does that automatically mean that she will lose her right to maintenance under Section 125(4) CrPC/Section 144(4) BNSS?

In most cases, the proceedings for restitution of conjugal rights are filed with this foresight/strategy.

The Hon’ble Himachal Pradesh High Court in Hem Raj vs. Urmila Devi & Ors. (1997) 1 HLR 702 held that once a court found in a contested proceeding that the wife had no just or reasonable cause to withdraw her society from the husband, she cannot claim maintenance under Section 125 CrPC. It was further observed that the wife had not pleaded any subsequent event or circumstance which justified her staying away from her husband despite the decree for restitution of conjugal rights passed against her.

Similarly, the Hon’ble Punjab & Haryana High Court in Ravi Kumar vs. Santosh Kumari (1997) 3 RCR (Cri) 3 (DB) held that a wife against whom a decree for restitution of conjugal rights has been passed would not be entitled to claim maintenance under Section 125 CrPC unless the husband got an ex parte decree for restitution. The judgment also observed that an RCR decree passed in favor of the husband will not lead to automatic cancellation of the maintenance already decided before the passing of the decree of RCR, and the husband will have to approach the Magistrate to get the order granting maintenance cancelled.

In an earlier judgment titled Sampuran Singh vs. Gurdev Kaur & Anr 1985 Cri LJ 1072 (P&H), the Hon’ble Punjab & Haryana High Court observed that a wife can still claim maintenance if she shows that the conduct of the husband obstructs her from obeying the decree.

In K. Narayana Rao vs. Bhagyalakshmi 1983 SCC OnLine Kar 190, the Karnataka High Court observed that the court dealing with a maintenance claim under Section 125 CrPC will take into consideration the non-compliance of the decree for restitution of conjugal rights, but the said court will not be bound by all the findings therein, including findings on questions such as whether the wife withdrew from the society of the husband, deserted him, or led an adulterous life.

In January 2025, the Hon’ble Apex Court, while considering the aforementioned judgments and numerous other decisions rendered by different High Courts, ruled that an RCR decree does not automatically cancel a spouse’s right to maintenance under Section 125(4). The said decree may be relevant for arriving at a fresh assessment by the concerned court as to whether there is a “sufficient reason” for living apart, based on the evidence in that case. However, the RCR decree cannot be considered binding on the court deciding maintenance under Section 125 CrPC/144 BNSS.

Therefore, if the wife has genuine reasons for living separately such as cruelty, neglect, unsafe conditions, or loss of dignity, the maintenance court is to consider the same and not rely solely on the RCR decree.

The Hon’ble Supreme Court in Para 29 of its judgment dated 10.01.2025 in Rina Kumari @ Rina Devi @ Reena Versus Dinesh Kumar Mahto @ Dinesh Kumar Mahato & Anr. (2025 INSC 55), it was held:

29.  Thus, the preponderance of judicial thought weighs in favour of upholding the wife’s right to maintenance under Section 125 CrPC, and the mere passing of a decree for restitution of conjugal rights at the husband’s behest and non-compliance therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4) CrPC. It would depend on the facts of the individual case, and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree. There can be no hard and fast rule in this regard, and it must invariably depend on the distinctive facts and circumstances obtaining in each particular case. In any event, a decree for restitution of conjugal rights secured by a husband, coupled with non-compliance therewith by the wife, would not be determinative straightaway either of her right to maintenance or the applicability of the disqualification under Section 125(4) CrPC.

Thus, there can be no mechanical application of a decree for restitution of conjugal rights, and its non-compliance does not automatically disentitle the wife from claiming maintenance under Section 125 (now Section 144), if she has sufficient and bona fide reasons to refuse compliance.

7336_2024_1_1501_58403_Judgement_10-Jan-2025.pdf

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