If parties are living separately after getting MCD and receiving lumpsum amount, wife is not entitled to maintenance.

CRM M-37915 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM M-37915 of 2011
Date of Decision: February 05, 2013
Saroj Bala @ Geeta
… Petitioner
Versus
Ashok Kumar Kalyan
… Respondent
CORAM: HON’BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. P.C. Suman, Advocate,
for the petitioner.
Mr. J.S. Saneta, Advocate,
for the respondent.
Paramjeet Singh, J.
Present petition has been filed under Section 482 of the Code
of Criminal Procedure (hereinafter referred to as the “Code”) read with
Article 227 of the Constitution of India, challenging order dated
15.11.2011 (Annexure P/4) passed by the learned Sessions Judge, Ambala,
whereby order dated 20.09.2010 (Annexure P/1) passed by learned Judicial
Magistrate First Class, Ambala Cantt. in an application under Section 125
of the Code has been set aside and the application under Section 125 of theCRM M-37915 of 2011 2
Code has been ordered to be dismissed.
Brief facts of the case are that marriage between the petitioner
and respondent was solemnized on 04.11.1996 according to Hindu Rites
and Ceremonies. No issue was born from the marriage. Initially,
respondent – Ashok Kumar Kalyan filed a petition under Section 13 of the
Hindu Marriage Act, 1955 (hereinafter referred to as the “Act”). During
the pendency of that petition, the parties jointly moved an application
under Section 13-B of the Act for grant of decree of divorce by mutual
consent. During the course of those proceedings, a compromise was
effected between the parties and the statements of the parties were
recorded. Statement of the petitioner recorded before the learned
Additional District Judge, Ambala reads as under:-
“I have heard the above recorded statement of petitioner
Ashok. The same is correct. It is true that we after
marriage could barely lived together for 20 days and
could not adjust with each other’s temperament. I had
left the matrimonial home on account of grave
differences and is living separately since 12.2.1999. We
had entered into compromise Ex.C1. I had received
rupees one lac from petitioner Ashok Kumar towards full
and final claim of my maintenance etc. and have already
withdrawn complaint u/s 498 and 498-A IPC which was
pending at Jammu. The copy of said order is Ex.C2. I
had also withdrawn the maintenance petition filed by me
and the copy of said order is Ex.C3. It is not possible for
us to live together as husband and wife and, therefore,
our marriage may be dissolved by granting a decree of
divorce.”CRM M-37915 of 2011 3
The petitioner has received ` 1.00 lac from the respondent
towards full and final claim of maintenance etc. and all the other
proceedings had been withdrawn between the parties. Even the
maintenance petition filed by the petitioner was also withdrawn. On
considering these facts, the learned Sessions Judge set aside order dated
20.09.2010 of the learned Judicial Magistrate First Class. Hence, this
instant petition.
I have heard learned counsel for the parties.
Learned counsel for the petitioner vehemently contended that
if the mutual divorce is granted and the amount is received in lump sum in
lieu of maintenance as full and final settlement, even then divorced wife is
entitled to maintenance till she remarries. Learned counsel for the
petitioner relied upon judgment of this Court in the case of Sushil Kumar
versus Neelam, 2004, Crl. L.J., 3690(1) and judgment of Calcutta High
Court in the case of Sankar Soren vs. State of W.B. and another, 2004,
Crl. L.J., 3088 to contend that the petitioner is entitled to maintenance
and the order of the learned Sessions Judge is not sustainable in the eyes of
law.
Per contra learned counsel for the respondent has vehemently
opposed the contentions of the learned counsel for the petitioner. Learned
counsel for the respondent submitted that divorce has been granted with
mutual consent. The petitioner has accepted the maintenance in lump sum
to the tune of ` 1.00 lac as per status of the parties and the said amount of
maintenance has been paid by the respondent to the petitioner in full andCRM M-37915 of 2011 4
final settlement. The withdrawal of the application for maintenance by the
petitioner in pursuance of the compromise is also indicative of the fact that
the petitioner has accepted the amount as a full and final settlement which
includes maintenance and the parties are residing separately. Learned
counsel for the respondent has relied upon judgment of Rajasthan High
Court in the case of Shashi alias Mala vs. State and another, 2007(2)
R.C.R. (Criminal) 144, judgment of this Court in the case of Gurmail
Singh vs. Ramanjeet Kaur, 2007(2) R.C.R. (Civil) 2, and judgment of
Madras High Court in the case of Rathina Marie Prema vs. Marcel
Fernandos, 1997(3) R.C.R. (Criminal) 791. Learned counsel for the
respondent further submitted that when the wife is staying separately by
mutual consent, then she is not entitled to maintenance as per Section 125
of the Code.
I have considered the rival contentions of the learned counsel
for the parties and perused the record.
Admittedly, the marriage has been dissolved by decree of
divorce with mutual consent under Section 13-B of the Act, wherein the
parties have effected compromise and the statements have been recorded
before the Matrimonial Court that the petitioner has accepted a lump sum
amount of ` 1.00 lac as a full and final settlement for maintenance etc.
Learned counsel for the petitioner has also admitted this fact, but states
that the petitioner being still unmarried is entitled to maintenance under
Section 125 of the Code. Specific emphasis has been put in this regard by
citing the judgment of this Court in Sushil Kumar’s case (supra). CRM M-37915 of 2011 5
I have perused the judgment in Sushil Kumar’s case (supra).
Perusal of said judgment shows that although wife was granted divorce by
mutual consent but in that case she had waived her right to claim
maintenance. Her agreement not to claim maintenance in future was held
invalid under Section 23 of the Contract Act. The ratio of this judgment
does not apply in the facts and circumstances of the case in hand. Here is a
case where the maintenance has been paid by the respondent to the
petitioner wife in lump sum according to their status and the same was
accepted by the petitioner as a full and final settlement. Petitioner cannot
approbate and reprobate. The parties are bound by the terms of the
compromise as well as the statements made before the Matrimonial Court
at the time of grant of divorce by mutual consent.
Section 125(4) of the Code reads as under:-
“125(4)- No wife shall be entitled to receive an
allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case
may be, from her husband under this section if she is
living in adultery, or if, without any suf icient reason, she
refuses to live with her husband, or if they are living
separately by mutual consent.”
Perusal of Section 125(4) of the Code reveals that wife
residing separately by mutual consent is not entitled to maintenance. The
case of the respondent is on higher pedestal. Firstly because the petitioner
got the divorce by mutual consent. Thereafter, she is residing separately
by mutual consent. Secondly, she had accepted a lump sum amount ofCRM M-37915 of 2011 6
maintenance as a full and final settlement and that stands paid.
In view of this, this Court is of the view that after divorce by
mutual consent and when the parties are residing separately and lump sum
amount of maintenance as a full and final settlement has already been
accepted, petitioner-wife is not entitled to maintenance.
In the result, I do not find any reason to interfere in the
impugned order.
Dismissed.
February 05, 2013 [Paramjeet Singh]
vkd Judge

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