Case Note & Summary
The litigation arose from a maintenance application filed under Section 125 of the Code of Criminal Procedure, 1973 by the appellant wife after the dissolution of her marriage by mutual consent. The appellant was married to the respondent in 1971 and later entered into a divorce agreement due to irrecoverable differences, in which she stated she had no objection to divorce and no claim or demand from the husband; the respondent was at liberty to remarry and did so. The wife filed the maintenance application on July 21, 1988 seeking maintenance for herself and her minor son. The Magistrate by order dated February 28, 1990 awarded Rs.200 per month to the wife and Rs.100 per month to the minor son with effect from the date of order. On revision, the Additional Sessions Judge, Kapurthala held that the wife was not entitled to maintenance and granted only Rs.100 per month to the son. The High Court by order dated July 2, 1991 confirmed the denial of maintenance to the wife on the ground that she was residing separately by mutual consent and hence not entitled under Section 125(4) CrPC; the High Court enhanced the son's maintenance to Rs.150 per month. The wife appealed by special leave to the Supreme Court. The core legal issue was whether a wife who had agreed to divorce by mutual consent and declared no claim against the husband could claim maintenance under Section 125 once the marriage was terminated. The Supreme Court considered Section 125(4) CrPC, which bars a wife from receiving maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or is living separately by mutual consent. The Court reasoned that the concept of living separately by mutual consent arises only so long as the marriage subsists; during subsistence, no party can claim maintenance from the other. However, in view of the divorce agreement, the marital relations had come to a terminus; the respondent had already contracted a second marriage, putting the first marriage to an end. Consequently, the appellant became entitled to claim maintenance and would continue to be so entitled so long as she remained unmarried and unable to maintain herself. The respondent's contention that the appellant owned two kanals of land and was not totally dependent was rejected; the Magistrate had already considered this aspect and awarded Rs.200, and mere ownership of two kanals was not sufficient ground to disentitle her. The Supreme Court allowed the appeal, set aside the orders of the Additional Sessions Judge and the High Court to the extent they denied maintenance to the appellant, and confirmed the Magistrate's award. The appellant and her minor son were held entitled to Rs.200 and Rs.150 per month respectively.
Headnote
A) Criminal Procedure - Maintenance - Section 125(4) Code of Criminal Procedure, 1973 - The bar against maintenance for a wife living separately by mutual consent applies only while the marriage subsists; once a divorce agreement terminates the marriage, the wife becomes entitled to claim maintenance under Section 125, provided she remains unmarried and unable to maintain herself. In this case, the High Court wrongly relied on mutual consent separation to deny maintenance after the marriage had ended; the divorce agreement and the husband's remarriage established that marital relations had come to a terminus. Held, the appeal was allowed and the wife's maintenance restored. B) Criminal Procedure - Maintenance - Quantum and Wife's Dependence - Section 125 Code of Criminal Procedure, 1973 - Possession of two kanals of land by the wife did not, by itself, disentitle her to maintenance; the Magistrate had considered her financial position and awarded Rs.200 per month for the wife and Rs.100 for the minor son. The appellate courts failed to appreciate this aspect; the High Court enhanced the son's maintenance to Rs.150 but denied the wife's claim. Held, the Magistrate's award for the wife was restored and the son's enhanced maintenance upheld.
Issue of Consideration
Whether a wife who entered into a mutual consent divorce agreement and declared no claim or demand from her husband is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973 after the marriage has been terminated by that agreement and the husband's subsequent remarriage; whether ownership of two kanals of land disentitles her from claiming maintenance.
Final Decision
Appeal allowed; orders of Additional Sessions Judge and High Court denying maintenance to appellant set aside; Magistrate's order awarding Rs.200 per month to wife restored; appellant and minor son entitled to Rs.200 and Rs.150 per month respectively.
Law Points
- Living separately by mutual consent under Section 125(4) CrPC applies only during subsistence of marriage
- Divorced wife entitled to maintenance under Section 125 CrPC if she remains unmarried and unable to maintain herself
- Possession of two kanals of land does not automatically disentitle wife to maintenance
