Gajanan vs. Sheela Gajanan Solanke – Case Study – Maintenance law
Court – High Court of Bombay – Citations: II (2005) DMC 134, 2005 (1) MhLj 348
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(1) Section 125 of Criminal Procedure Code, 1973
(2) Section 127 of Criminal Procedure Code, 1973
If wife after taking divorce from husband agrees to stay separately and give up her claim of maintenance, can she claim maintenance under section 125 of Criminal Procedure Code, 1973 ?
If the wife after taking a divorce from her husband agrees to stay separately and give up her claim of maintenance, the wife is not entitled to claim maintenance under Section 125 of the Criminal Procedure Code, 1973
NB Associates is a leading law firm in Family law, Matrimonial cases, Divorce law, Maintenance cases etc. Clients can contact us for any query or issue related to these laws or cases.
Judicial Magistrate court
Husband and wife executed mutual deed of divorce as well as separate consent deed, Wife filed a case in the Court of Judicial Magistrate First Class claiming maintenance of Rs. 500/- per month for herself and Rs. 400/- per month for his child.
The learned Judicial Magistrate First Class dismissed the application filed by wife and child for maintenance.
The learned Judicial Magistrate First Class on the basis of evidence on record held that the husband and wife are separated by consent deed to which the father of respondent No. 1 (wife) was a signatory.
Revision court
The Revisional Court reversed the judgement of Judicial Magistrate First Class, and while reversing the judgment and order of the learned Magistrate held that even a divorced wife is not debarred from claiming maintenance in spite of the consent deed or relinquishment of maintenance.
The revision was allowed and maintenance of Rs. 500/- per month was granted in favour of respondent No. 1 and maintenance of Rs. 400/- per month was awarded in favour of respondent No. 2.
High Court of Bombay
The matter came up in High Court of Bombay.
In terms of consent deed respondent No. 1 (Wife) has given up her claim for maintenance and agreed to live separately from the date of execution of the said deed.
wife after executing document of divorce and mutual separation, she was not entitled to claim maintenance in terms of Section 125 of Code of Criminal Procedure.
If wife accepts that there is divorce by mutual consent on certain terms and conditions, and she gives up her claim for maintenance past and future, an application for claiming maintenance, under Section 125 of Code of Criminal Procedure is not maintainable.
On a plain reading of consent deed, which is on record, it is evident that respondent No. 1 (Wife) has agreed to stay separately from the present applicant and has agreed not to claim any amount by way of maintenance or otherwise in future from the present applicant
Respondent No. 1 (Wife) cannot claim any maintenance from the applicant (Husband) and to that extent, the Revisional Court was legally not justified in interfering with the judgment and order passed by the learned Judicial Magistrate First Class dismissing application filed by respondent No. 1 (Wife) on her behalf and on behalf of respondent No. 2.
(1) Smt. Sushilabai w/o Ravan Patil v. Shri Ravan Elji Patil and Anr. – High Court of Bombay
(2) Shrawan Sakharam Ubale v. Durga Shrawan Ubale and Ors – High Court of Bombay
In view of ratio laid down in the judgments cited by the learned counsel appearing for the applicant to the effect that if wife after taking divorce from her husband agrees to stay separately and give up her claim of maintenance, the wife is not entitled to claim maintenance under Section 125 of Criminal Procedure Code.
I am of the opinion that the submissions made by learned counsel appearing for the applicant are well founded and deserve to be accepted. Therefore, the judgment and order passed by the Revisional Court deserves to be set aside insofar the grant of maintenance to respondent No. 1 is concerned.
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