Date:July 3, 2022
Here we will discuss the question – can a wife claim maintenance after mutual divorce?
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Can wife claim maintenance after mutual divorce?
This question is important as there are maintenance laws in India, which provide that even after divorce, a wife is entitled to claim maintenance from the husband e.g. section 125(1) (b) of Code of Criminal Procedure 1973, Section 25(1) of Hindu Marriage Act, 1955 etc.
This question is also a much-debated question, as we see most judgments on maintenance applications filed under section 125(1) of CrPc after divorce by mutual consent.
However, when it comes to other maintenance laws e.g. section 25 of the Hindu Marriage Act 1955 after divorce by mutual consent, we face difficulty in finding concrete judgement on the issue.
Before we proceed further let us see what all are the maintenance laws In India in this prospect i.e. related to maintenance of wife after mutual consent divorce.
(Related to the maintenance of wife after mutual consent divorce)
There are various maintenance laws in India. Here we will confine ourselves to the maintenance laws available to the wife after mutual consent divorce.
Followings are the related maintenance laws in India:
Section 125 of CrPC applies to a wife. She can file an application for maintenance against her husband, irrespective of religion.
Relevant sections 125(1)(b), Section 125(4).
As per section 25 of HMA at the time of passing any decree or at any time subsequent thereto, the court may order the grant of maintenance of husband or wife.
Divorce Act 1869 is applicable to Christians
Section 37 provides about the permanent alimony.
As per Section 40 of the Parsi Marriage and Divorce Act at the time of passing any decree or at any time subsequent thereto, the court may order the grant of maintenance of husband or wife.
As per section 125 (1), the Wife can file an application for her maintenance before Magistrate First class. In Explanation (b) wife is defined to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
So, a woman who has been divorced by her husband can still claim maintenance from her husband if she is not remarried.
However, Section 125(4) of the Code of Criminal Procedure provides that:
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.
Thus as per section 125(4) if husband and wife are living separately by mutual consent, wife is not entitled to receive an allowance from her husband.
Section 125(4) is an explicit provision, and the courts in India have taken support of this section in disallowing wife’s claim of maintenance after mutual consent divorce.
Popat Kashinath Bodke vs Kamalabai Popat Bodke
In the case Popat Kashinath Bodke vs Kamalabai Popat Bodke [2003 (2) ALD Cri 63, 2003 BomCR Cri, II (2003) DMC 193, 2003 (2) MhLj 608], the Hon’ble Bombay High Court held as follows
1. If the spouses are residing separately permanently by consent, then in view of Section 125(4) of CrPC, the wife would not be having a right to claim alimony from the husband after the date of execution of the said agreement if that agreement has been acted on and appropriate provision for maintenance has been made.
2. When the spouses entered into an agreement after a matrimonial dispute, the texture of the document is to be seen. Words and sentences used are to be considered.
3. The intention expressed by the language of the document has to be noted and the Court should come to a conclusion as to what the spouses are expressing by such agreement and document executed between them.
4. The document may be a document of customary divorce, the document may be for the purpose of giving a lumpsum amount to the wife as alimony or the document may be for residing separately permanently and adjusting the assets and liabilities of the pair.
5. The agreement has to be read as a whole and the Court has to come to an appropriate conclusion.
6. If by such an agreement or document the spouses are expressing to live separately by consent, it has to be considered appropriately in a matrimonial cases.
Vitthal Hiraji Jadhav vs Smt. Harnabai Vitthal Jadhav
In the case Vitthal Hiraji Jadhav vs Smt. Harnabai Vitthal Jadhav [2003 (2) ALD Cri 81, 2003 BomCR Cri, I (2004) DMC 572, 2003 (4) MhLj 23] the Hon’ble Bombay High Court held as follows:
1. Provisions of Section 125(4), provide that, no wife shall be entitled to receive alimony from her husband under this section if she is living in adultery, or that without sufficient reason refuses to live with the husband, or if, they are living separately by mutual consent.
2. When the husband and wife are residing separately by mutual consent, such wife looses the right to claim alimony from such husband, in view of provisions of Sub-section (4) of Section 125 of the code.
3. The language of Sub-section (4) is very clear on this point and there is no scope to deviate from it.
Gajanan Panduraang Solanke v. Sheela Gajanan Solanke
In the case Gajanan Panduraang Solanke v. Sheela Gajanan Solanke [2005(1) Mh.L.J. 348 – 2005 All MR (Cri) 314] this Court observed that:
Wife after taking divorce agreed to stay separately and give up her claim of maintenance such a wife is not entitled to claim maintenance under section 125 of the Code of Criminal Procedure.
Shashi Alias Mala vs State And Anr
In the case Shashi Alias Mala vs State And Anr [RLW 2007 (1) Raj 672] the Rajasthan High Court observed that:
A holistic reading of the provisions would clearly reveal that in case a wife is divorced on the ground of mutual consent, then she is disentitled from claiming any maintenance or interim maintenance and expenses of proceedings from the husband.
Section 25(1) provides that
“Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance…..”
Under this provision, the court at the time of passing of any decree may pass an order of maintenance. The court may also pass an order of maintenance subsequent to the passing of a decree.
Thus an application for maintenance by the wife can be moved even after passing of the decree of mutual divorce as per section 25(1) of the Hindu Marriage Act 1955.
Geeta Satish Gokarna vs Satish Shankarrao Gokarna [AIR 2004 Bom 345, 2004 (3) MhLj 159]
Brief facts of the case :
1. Marriage was dissolved by mutual consent under Hindu Marriage Act, 1955
2. There was consent terms which contained that the petitioner (wife) will not claim any maintenance or alimony in future.
3. After mutual consent divorce wife filed an application for maintenance under section 25 of the Hindu Marriage Act 1955, and the family court fixed maintenance of Rs. 2,000/-
4. Wife filed an appeal in Bombay High Court for enhancement of maintenance granted by the family court. The husband contended that as the wife had signed the consent terms which contain a provision that she would not claim maintenance in future she is estopped from claiming maintenance.
The husband also contended that it is not open to the appellant to call on the Court to reopen the consent terms which is already concluded by the order of the Court in which maintenance was not granted in terms of the consent terms.
Questions before the court :
1. Whether in a case where consent terms were filed that provided that the wife would not claim maintenance or alimony in future whether it is still open to the wife to claim maintenance
2. Whether considering the consent terms under this case the appellant is entitled to maintenance.
Court held :
1. A perusal of Section 25(1) will show that the power to grant alimony or maintenance is not only at the time of passing of a decree. It is in the alternative i.e. at any time subsequent thereto.
2. This expression “or at any time subsequent thereto” can only mean after the decree for divorce has been passed, provided that no maintenance was provided for in the order granting the decree for divorce.
3. In terms of the express language of the section itself any of the parties if no maintenance has been granted under Section 25(1) may at any time subsequent thereto move an application.
4. The question really would be whether under Section 25(1) a party who has been divorced is entitled to maintenance even if in the consent terms had agreed not to claim alimony/maintenance. The language of Section 25(1) shows that it is a power conferred on the Court at the time of passing of the decree or at any time subsequent thereto on an application made to award alimony or maintenance. This is a jurisdiction to be exercised by the Court. The parties, therefore, cannot by an agreement between themselves, agree to oust the jurisdiction of the Court which otherwise Parliament has conferred
5. On the facts and circumstances court held that the appellant was not barred from applying under Section 25(1).
Arjun Roy vs. Dr. Niranjana Kumar [Miscellaneous Appeal No. 292 of 2010]
Brief fact of the case
1. Mutual consent divorce was granted under section 13B of the Hindu Marriage Act 1955
2. Parties agreed to the payment of permanent alimony of Rs. 3,11,000/- and education to daughter during the mutual divorce process.
3. The permanent alimony was paid and accepted by wife.
4. Pursuant to the passing of the decree of divorce, the court awarded maintenance to the wife @ Rs. 7,000 per month.
Court held :
1. The joint petition filed on behalf of the parties under Section 13B clearly lays down in paragraph 5 that the husband was paying a lump sum amount of Rs. 3,11,000/- against maintenance and education of child. That amount has already been paid and there is no whisper in the joint petition regarding further payment of maintenance save and except the statement made in paragraph 6 wherein it is stated that the opposite party will generously support the daughter at time of her marriage based on the relationship.
2. In such a situation, in our opinion, no further amount of maintenance was required to be paid by the husband to the wife under Section 25 of the Hindu Marriage Act.
3. In the joint petition the quantum of alimony which was to be paid to the wife against the maintenance has been mentioned. From the statement made in paragraph 5, it cannot be construed that said amount was for the purpose of maintenance and education of the child only. Otherwise the wife, at the relevant point of time, could have raised such grievance for the amount of maintenance to be paid to her as a condition precedent for divorce on mutual consent. In the absence of that it has to be understood that no further grievance was left to be adjudicated after agreeing for divorce on mutual consent and as such, the court below was not at all justified to open the issue of grant of alimony under Section 25of the Hindu Marriage Act once divorce was granted under Section 13B of the Act.
Thus the role of the express consent or settlement terms in mutual consent divorce is very important. Such settlement terms can either be incorporated in the joint petition itself or by way of a separate settlement agreement filed along with the joint mutual divorce petition.
Further, settlement terms should be carefully worded. The mutual understanding of the husband and wife should be incorporated in clear terms and should be in a manner not leaving any room for future dispute(s) between husband and wife.
Settlement terms not carefully worded in the joint petition or in the settlement agreement filed with the joint petition, or not incorporating mutually agreed terms between the husband and wife will lead to disputes.
If permanent alimony is being granted, that should be expressly worded and the wife must accept it as a full and final settlement.
In case permanent alimony is not granted or the joint petition or settlement agreement is silent on this, the scope of filing of an application under section 25(1) of the Hindu Marriage Act shall be open.
In the following circumstances wife can claim maintenance after mutual consent divorce:
1. If the Wife was granted one-time permanent alimony at the time of mutual consent divorce, and she received it as a full and final settlement, the wife cannot claim maintenance after mutual consent divorce.
2. If a provision is made in the settlement agreement for future payment of maintenance, and the same is agreed by the wife as full and final settlement of her right to permanent alimony or the wife has expressly repudiated any further or future claim.
In the following circumstances wife can claim maintenance after mutual consent divorce:
1. If no permanent alimony is granted in mutual consent divorce.
2. If a wife has reserved her right to claim maintenance under the settlement agreement.
3. If a provision is made in the settlement agreement for future payment of maintenance.
4. If a joint petition or settlement agreement filed along with the joint petition is silent on permanent alimony to the wife.
Whether Wife can claim maintenance after mutual consent divorce depends on facts and circumstances of each case.
If Wife was granted one time permanent alimony at the time of mutual consent divorce, and she received it as full and final settlement, wife cannot claim maintenance after mutual consent divorce.
If Wife was not granted one time permanent alimony at the time of mutual consent divorce, she may claim maintenance after mutual consent divorce.
If wife reserved her right to claim maintenance under the settlement agreement filed in mutual consent divorce or otherwise, she may claim maintenance after mutual consent divorce.
If a provision is made in the settlement agreement filed in mutual consent divorce process for future payment of maintenance, wife can claim maintenance after mutual consent divorce.
Whether settlement agreement filed in mutual consent divorce is silent on permanent alimony to wife, wife can claim maintenance after mutual consent divorce.
It is important that while filing mutual consent divorce, the settlement agreement is carefully drafted to avoid any future dispute or claim.
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