Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 AGAINST THE ORDER/JUDGMENT IN MC 54/2014 OF FAMILY COURT, TRIVANDRUM REVISION PETITIONER/COUNTER PETITIONER: RAJEEV R. AGED 34 YEARS S/O.RAGHAVAN, RESIDING AT CHERUMANKARAVILA VEEDU, VADAKKE PUTHU VEEDU, ERICHALLOOR, PLAMOOTTUKKADA P.O., KARODE VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SMT.M.BINDUDAS SRI.R.T.PRADEEP RESPONDENTS/PETITIONERS: 1 SHIMI D/O.STEPHEN, SHIBU NIVAS, THATHIYOOR, MANCHAVILAKOM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695121. 2 ROHITH S. AGED 3 YEARS (MINOR) RESIDING AT SHIBU NIVAS, THATHIYOOR, MANCHAVILAKOM P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM, REPRESENTED BY IST RESPONDENT BY ADVS. SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CR
ORDER
Dated this the 28th day of October, 2022 This revision petition filed under Section 19(4) of the Family Courts Act, is at the instance of the respondent-husband in M.C.No.54/2014, on the file of the Family Court, Thiruvananthapuram, where the petitioners are the respondents herein.
2. Order dated 05.01.2016 in M.C.No.54/2014 is
under challenge in this revision petition, on the ground that the Family Court wrongly granted maintenance to the first respondent, who is the petitioner-wife in the MC, at the rate of Rs.2,500/-, ignoring the admission of the 1st respondent in Ext.R1, the copy of petition for divorce filed under Section 10A of the Indian Divorce Act and Section 7 of the Family Courts Act.
3. Three questions arise for consideration in this petition are;
1) Can a wife living separately by mutual consent claim allowance of maintenance? 2) Living separately after divorce is akin to living separately by mutual consent ? 3) Whether a divorced wife can claim allowance of maintenance after filing joint petition admitting that all claims except the claim of maintenance of the child were settled?
4. It is submitted by the learned counsel for the revision petitioner that the revision petitioner has no objection in so far as the amount of maintenance
granted in favour of the minor child at the rate Rs.3,000/-. However, as per the recitals in the joint petition filed under Section 10A of the Indian Divorce Act produced as Ext.R1, the entire dispute has been settled in between the husband and the wife and mutual divorce also was obtained. In paragraph No.7 of Ext.R1, it has been categorically stated as under:
“There is nothing to be recovered from the 1 st petitioner to the 2nd petitioner. All claims between the petitioners are settled, except the claim for maintenance of the child.”
5. After referring paragraph No.7 of Ext.R1 as
extracted above, the learned counsel for the revision respondent submitted that since the first petitioner received Rs.6,00,000/- and thereby all claims between the parties (the revision petitioner and the first respondent herein) settled, except the claim for maintenance of the child. Therefore, the order, granting maintenance to the first respondent, is legally unsustainable.
6. The learned counsel for the respondents would
submit that even after divorce, for the purpose of claiming maintenance under Section 125 of Cr.P.C., the first petitioner’s status is as that of “a wife” and therefore, the settlement and receipt of Rs.6,00,000/- by itself is not a reason to deny maintenance to the wife.
7. The court below, while adjudicating this
contention, held that the contention of the revision petitioner relying on Ext.R1 could not be accepted, since the definition of ‘wife’ coming under Section 125 Cr.P.C. includes, ‘a wife who obtained divorce by mutual agreement’.
8. Having appraised the rival contentions, it is
relevant to note that, admittedly, the parties dissolved the marriage by mutual consent and in Ext.R1, the joint divorce petition, all claims were submitted to be settled, except the maintenance for the child. In this connection, Section 125(4) of Cr.P.C. is relevant. Section 125 (4) Cr.P.C. is as follows: “125.Order for maintenance of wives, children and parents.
(1) xxxx
(2) xxxx
(3) xxxx
(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.”
9. In fact, no wife living separately by mutual
consent is entitled for the allowance of maintenance. Indebutably, living separately after effecting divorce by ‘mutual consent’ is akin to living separately by ‘mutual consent’. Here, the first respondent is a divorced lady, thus living separately by mutual consent. Therefore, going by the mandate of Section 125(4) of Cr.P.C. itself, the first respondent is not entitled to get maintenance. Similarly, a divorced wife, who effected divorce by ‘mutual consent’ on admitting that all her claims were settled, cannot claim allowance of maintenance as she
admittedly settled the entire claims against the husband. Therefore, in view of the settlement of the claim as recited in Ext.R1. , the first respondent herein is not entitled to get allowance of maintenance. Therefore, the Family Court went wrong in granting maintenance to
the first respondent herein. Therefore, the said order
stands set aside. However, no objection raised in so far as grant of maintenance to the second respondent, and the scope of objection is negligible, the same stands confirmed. In the result, this revision petition stands allowed in part. The order of maintenance in favour of the first respondent shall stand set aside, while confirming the
order of maintenance in favour of the second
respondent. It is submitted by the learned counsel for the respondents that huge amount towards the allowance of maintenance to the child in arrears and the said aspect required to be considered by this Court. Therefore, there shall be a direction to the revision petitioner to deposit the entire arrears, within a period of one month from today. On failure to do so, the 2 nd respondent is at liberty to execute the order, as per law.
Registry is directed to forward a copy of this order
to the Family Court concerned, within two weeks for information and compliance. Sd/- A. BADHARUDEEN JUDGE nkr