Court:PUNJAB AND HARYANA HIGH COURT
Bench: JUSTICE Paramjeet Singh
SAROJ BALA @ GEETA Vs. ASHOK KUMAR KALYAN On 5 February 2013
Divorce by mutual consent — Wife residing separately by mutual consent and accepted lump sum amount of maintenance as full and final settlement as paid — Wife not entitled to maintenance.
1. 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 20.9.2010 (Annexure P/l) 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 the Code has been ordered to be dismissed.
2. Brief facts of the case are that marriage between the petitioner and respondent was solemnized on 4.11.1996 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 13B 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.Cl. I had received Rupees one lac from petitioner Ashok Kumar towards full and final claim of my maintenance, etc. and have already withdrawn complaint under Sections 498 and 498A, IPC, which was pending at Jammu.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 I had also withdrawn the maintenance petition filed by me and the copy of said order is Ex.C3.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.”
3. The petitioner has received Rs. 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 20.9.2010 of the learned Judicial Magistrate, First Class. Hence, this instant petition.
4. I have heard learned Counsel for the parties.
5. 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 v. Neelam, I (2005) DMC 619=2004 Cr.LJ 3690 (1) and judgment of Calcutta High Court in the case of Sankar Soren v. State of W.B. and Another, 2004 Cr.LJ 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.
6. 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 Rs. 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 and 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 @ Mala v. State and Another, 2007 (2) RCR (Cr.) 144, judgment of this Court in the case of Gurmail Singh v. Ramanjee Kaur, 2007 (2) RCR (Civ.) 2, and judgment of Madras High Court in the case of Rathina Marie Prema v. Marcel Fernandos, 1997 (3) RCR (Cr.) 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.
7. I have considered the rival contentions of the learned Counsel for the parties and perused the record.
8. Admittedly, the marriage has been dissolved by decree of divorce with mutual consent under Section 13B 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 Rs. l.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).
9. 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 sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”
10. 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 of maintenance as a full and final settlement and that stands paid.
11. 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.
12. In the result, I do not find any reason to interfere in the impugned order.
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