Madras High Court
K. Pandian vs A. Savithiri on 2 September, 1998
Equivalent citations: I(2000)DMC514
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The order in M.C. No. 31/97 on the file of Judicial Magistrate, Melur awarding maintenance to the respondent/wife of Rs. 300/- per month from the date of the application, namely 23.5.1997, is being challenged in this Revision by the petitioner/husband.
2. The respondent/wife got married to the petitioner on 12.6.1995. Since the respondent was subject to torture and she was driven out of the matrimonial home, she filed a petition claiming for maintenance from the petitioner/husband.
3. The lower Court, after enquiry, concluded that the respondent is entitled to maintenance of Rs. 300/- per month.
4. Mr. Sekaran, the learned Counsel appearing for the petitioner, mainly argued on the basis of Ex. R1 that already there was an agreement between the petitioner and the respondent for divorce and thereby she was living separately and that in pursuance of the said agreement, the respondent had received Rs. 25,000/- as future maintenance and as such, under Section 125(4), Cr.P.C., the respondent cannot claim maintenance.
5. The learned Counsel would further contend that the lower Court, having placed reliance upon the said document Ex. R1 regarding divorce, ought to have invoked Section 125(4), Cr.P.C. to hold that the respondent is not entitled to any maintenance.
6. Arguing contra, Mr. Mahendran, the learned Counsel appearing for the respondent/wife, would contend that the respondent was not a willing party to the said agreement and she was made to sign in the agreement without informing the contents of the same and that, therefore, the respondent could maintain the application for maintenance.
7. The short point that arises in this revision is whether under Section 125(4), Cr.P.C., the petitioner/husband could be proceeded with, claiming maintenance, in the light of the agreement between the parties.
8. Section 125(4), Cr.P.C. reads as under :
"No wife shall be entitled to receive an allowance 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."
9. Though the contention of the respondent/wife is that she did not know the contents of the document Ex. R1, the lower Court concluded that the said document was a valid one and, as such, the divorce deed was registered and signed by both the parties and even then the respondent is entitled to maintenance as a divorced wife. Therefore, the contention of the Counsel for the respondent that the said deed Ex. R1 should be excluded for consideration cannot be accepted.
10. However, the submission made by the Counsel for the petitioner is that once Ex. R1 has been accepted as a valid document by the Court, then automatically Section 125(4), Cr.P.C. would come into play and as such, the respondent will not be entitled to receive any allowance from her husband.
11. This submission, in my view, lacks substance. On a plain reading of the Section, it is clear that the word 'wife' in the said sub-section does not have the extended meaning including a woman who has been divorced. In other words, the wordings contained in the said sub-section "if they are living separately on mutual consent" would apply to the wife who is not divorced. After divorce there is no question of "mutual consent to live separately". Therefore, Section 125(4), Cr.P.C. does not operate in this case, once it has been established, according to the lower Court, that Ex. R1 is a valid document by which the respondent got divorce.
12. In view of the above legal situation, even accepting that Ex. R1 was executed by both the parties willingly, that would only show that there is a divorce on mutual consent. Section 125(4), Cr.P.C. will be applicable to the parties only when they decide to live separately by mutual consent temporarily. Once the marriage is dissolved, in my view mutual consent for living separately as contemplated under Section 125(4), Cr.P.C. would not come into play at all.
13. This view of mine is supported by the decision of the Apex Court reported in (1996) 1 Mad. LW (Crl.) 7=IV (1995) CCR 1 (SC), Smt. Vanamala v. H.M. Ranganatha Ehatta. The relevant observation is this :
"After divorce where is the occasion for the woman to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, Sub-section (4) of Section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded."
14. In the above said decision, the authorities of various High Courts, namely, Kongini Balan v. M. Visalakshy, 1986 Cr. L.J. 697 (Kerala); Krishnan Kumar v. Kiran, (1991) 1 DMC 248 (Madh. Pra.); and M. Ramakrishna Reddy v. T. Jayamma, 1992 Cri. L.J. 1368 (Andh. Pra.), supporting the above view, have been referred.
15. Therefore, when this view is in conformity with the plain language of Section 125(4), Cr.P.C., there is no difficulty in coming to the conclusion that the respondent is entitled to maintenance, even though there is an agreement for divorce. It is also to be pointed out that mere giving of lumpsum amount to the respondent for future maintenance as referred to in the said document would not preclude the respondent from approaching the Court by invoking Section 125, Cr.P.C. for claiming maintenance.
16. This Court in Ramasami v. Rukmani, (1995) 1 Mad. LW (Crl.) 177, would hold that mere settlement of claim for maintenance by giving a lumpsum amount could not disentitle the wife making claim again for maintenance due to change in circumstances.
17. So, in that view of the matter, even assuming that some amount was given by the petitioner to the wife for future maintenance, the wife cannot be restrained from approaching the Court to claim maintenance.
18. In the result, the Revision, which has no merit, is liable to be dismissed and, accordingly, the same is dismissed.