S 125 CrPC – Maintenance Petition Filed After Mutual Consent Divorce

Is Section 125 CrPC maintenance petition filed after a mutual consent divorce + final settlement maintainable?

Section 125(4) provides that 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.

Therefore, the question is whether Section 125(4) CrPC will be attracted in this situation?

There is an old judgment of the Supreme Court in Vanamala vs H.M.Ranganatha Bhatta 1995 SCC (5) 299, wherein it was held that Section 125(4) does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In the said judgment, the Supreme Court had approvingly taken note of some decisions of the High Courts on the issue of mutual consent divorce.

This judgment is seen followed by the Chhattisgarh HC in Rishikesh Singh alias T.R. Singh v. Kiran Gautam 2015 Cri.L.J. 126 and by Gujarat HC in Varshaben Himantlal Vejani Vs State of Gujarat on 15 Jul 2016

When an agreement is entered into by the wife and the husband, as a part of compromise filed in the Court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance under Section 125 Cr.P.C (See Vikraman Nair v. Aishwarya : 2018 (5) KHC 156: 2019 (1) KLT 826). This decision refers to so many caselaws on this issue and is a good read.

There is an interesting development in Calcutta HC regarding this issue. In Prasenjit Mukherjee v. State of West Bengal, a single judge has referred the following question to a larger bench: “Once it comes to the knowledge of the learned Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances: (a) A fresh case under Section 125 of the Code of Criminal Procedure is filed. (b) The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure. (c) Procedure/steps to be adopted by the learned Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.”