Court:KARNATAKA HIGH COURT
Bench: JUSTICE B.N. Mallikarjuna
MALAYAIAH Vs. G.S. VASANTHA LAKSHMI & ORS. On 12 August 1996
No maintenance if separation by mutual consent –– Wife living separately from her husband by consent –– Cannot enforce her right and ask for maintenance u/Section 125, Cr.P.C.
This revision is by the husband questioning the legality and correctness of the order of the District and Sessions Judge, Mandya dated August 7, 1993 in Cr.R.P. No. 66(A)/91 arising out of the order dated April 1, 1991 in C. Mis. No. 75/88 on the file of the Learned Magistrate, Srirangapatna granting maintenance of Rs. 300/- per month to each one of three respondents with further direction that the amount awarded in favour of 1st respondent to be paid from April 1, 1991. Learned Magistrate had refused maintenance to the 1st respondent and had ordered maintenance at the rate of Rs. 250/- each for respondents 2 and 3.
2. I would refer to the parties hereinafter as they are arrayed in the original petition before the learned Magistrate.
3. Petitioners made an application under Section 125 of Cr.P.C. against the respondent praying for atleast a sum of Rs. 1500/- per month for their maintenance. It is undisputed that 1st petitioner G.S. Vasanthalakshmi and the respondent Malayaiah belonging to different communities married on April 12, 1981 and their marriage came to be registered in the office of the Registrar of Marriages at Mysore on April 25, 1981. They continued to live together for about 6 years after the marriage and during which time they had two daughters and they are petitioners 2 and 3. It is only thereafter the dispute arose since the husband suspected the fidelity of the 1st petitioner. It is also alleged that since then the husband having sufficient means neglected to maintain his wife and two daughters. Respondent resisted the application contending inter alia that on March 28, 1988 a mutual agreement was entered into between the husband and wife styled as “Agreement for divorce by consent” and since then they have agreed to live separately by mutual consent and therefore wife is not entitled for maintenance.
4. Petitioner examined herself, produced documents Exs. P-1 to 18 in support of their case. Respondent examined himself, another witness by name Narasimharaju, produced documents Exs. R-1 to 5. Learned Magistrate after considering both oral and documentary evidence and also after hearing the Counsel for the parties, by order dated April 1, 1991 rejected the claim of the wife, granted Rs. 250/- each for petitioners 2 and 3.
5. Aggrieved by the order, wife questioned it before the District & Sessions Judge, Mandya in Cr.R.P. 66(A)/91. The learned Sessions Judge by order dated August 7, 1993 allowed the revision in part, granted maintenance even to the wife, enhanced the maintenance granted to the daughters and directed that a sum of Rs. 300/- each shall be paid and for the wife it shall be paid from April 1, 1991 Correctness of this order is under challenge.
6. Sub-section (4) of Section 125 of Cr.P.C. disentitles a wife from claiming maintenance under Section 125, Cr.P.C. in cases where the husband and wife live separately by mutual consent. Sub-section (5) further provides for cancellation of any such order under Section 125, Cr.P.C. subsequently, on proof that husband and wife are living separately by mutual consent. It is thus clear that a wife living separately from her husband by consent cannot enforce her right and ask for maintenance under Section 125, Cr.P.C.
Ex. R-4 is die agreement alleged to have been executed by the wife expressing her willingness to live separately from the husband. RW-1 husband and RW-2 Narasimharaju, Senior Assistant in Maharaja’s College, Mysore, speak to the execution of the document Ex. R-4. 1st petitioner-wife contends that it is created by her husband to avoid payment of maintenance. However, it is elicited in cross-examination of the petitioner that she had no ill-will or dispute with RW-2 Narasimharaju, that her mother has signed the agreement Ex. R-4 as a witness and both of them signed it at Vontikoppalu on March 28, 1988. Mother of the wife is literate and a retired school teacher. No acceptable or satisfactory evidence is placed on record to substantiate the statement of the wife that document Ex.R-4 is created for the purpose of avoiding payment of maintenance. In the circumstances, it is rather difficult to accept the statement of 1st petitioner-wife that document Ex. R-4 is created by the husband-revision petitioner to avoid his liability to pay her.
7. Learned Sessions Judge while referring to this document holds that it is an agreement unenforceable as opposed to public policy. True, there cannot be any written agreement between husband and wife for divorce contrary to the provisions contained in Hindu Marriage Act, both spouses being Hindus. Learned Sessions Judge, however, holds that document can be considered for a limited purpose. Even then, he fails to appreciate that this document is executed by mutual consent and since then they live separately by consent. Ignoring this aspect of the matter, Learned Sessions Judge interferes with the order of the Learned Magistrate refusing to grant maintenance to the wife which is neither proper nor correct. Therefore, as far as the grant of maintenance to the wife by the Learned Sessions Judge cannot be maintained.
8. Learned Counsel for the revision petitioner while arguing brought to my notice that in the year 1991 revision petitioner-husband made an application in the Court of Civil Judge, Srirangapatna under Section 13 of the Hindu Marriages Act for divorce. In that application, a joint petition was filed both by the husband and wife and on January 2, 1995 the Court recorded the compromise and granted decree of divorce dissolving the marriage by decree of divorce since the husband paid a lumpsum of Rs. 75,000/- and that was agreed to by the wife, certified copy of the order-sheet is produced in Court today.
9. In regard to the grant of maintenance for respondents 2 and 3, the order under challenge cannot be disturbed for more than one reason. The Learned Magistrate granted maintenance to daughters at the rate of Rs. 250/- each per month and that has not been challenged by the father viz., revision petitioner. Learned Sessions Judge enhances that amount by another 50/- directing the husband to pay a sum of Rs. 300/- each per month. It is clear from the evidence that revision petitioner is working as a lecturer and his salary is Rs. 4100/- a month. In the circumstances and having regard to the cost of education, cost of living, Rs. 300/- each to the petitioner’s two daughters cannot be held to be excessive. Therefore, the order granting maintenance to respondents 2 and 3 cannot be disturbed.
10. In the result and for the reasons stated above, this revision is allowed in part. Order directing the revision petitioner to pay Rs. 300/- a month to his wife-1st respondent by the order impugned is set aside. Revision petitioner shall pay respondents 2 and 3 maintenance at the rate of Rs. 300/- a month.
Revision partly allowed.