Full Judgment Text
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PETITIONER:
GURMIT KAUR
Vs.
RESPONDENT:
SURJIT SINGH @ JEET SINGH
DATE OF JUDGMENT28/11/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
MAJMUDAR S.B. (J)
CITATION:
1996 SCC (1) 39 JT 1995 (9) 138
1995 SCALE (6)739
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay condoned.
Leave granted.
The appellant was married to the respondent in the year
1971. She filed an application under Section 125, Code of
Criminal Procedure, 1973 [for short, "the Code"] for
maintenance on July 21, 1988. The learned Magistrate by
order dated February 28, 1990 granted a sum of Rs.100/- per
month, i.e., Rs.200/- to the wife and Rs.100/- to his minor
son with effect from the date of the order. On revision, the
learned Additional Sessions Judge, Kapurthala held that the
wife was not entitled to the maintenance and granted
Rs.100/- per month only in favour of the son. By its order
dated July 2, 1991, the High Court confirmed the same on the
ground that the appellant was residing separately by mutual
consent and that, therefore, she is not entitled to the
maintenance. The maintenance to the son was enhanced to
Rs.150/- per month. Thus this appeal by special leave.
We have seen the agreement for divorce by mutual
consent under which the parties have settled their terms.
The parties have not challenged the validity of the
agreement of divorce. Therefore, we proceed on the premise
that it is a valid agreement and the appellant has stated
thereunder that due to irrecoverable differences between her
and her husband, she has no objection to the divorce and she
has no claim or any demand from him. She has also stated
that the respondent is at liberty to marry anyone of his
choice. He accordingly married another lady.
Section 125 [4] of the Code provides as under:
"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
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separately by mutual consent."
The concept of living separately by mutual consent arises so
long as the marriage subsists and the parties agree to live
separately by consent. In other words, during the
subsistance of the marriage, no party is entitled to lay any
claim for maintenance from the other party.
In view of the divorce agreement referred to
hereinabove, the marital relations have come to a terminus.
By virtue thereof, the respondent had already contracted the
second marriage. In other words, the first marriage has been
put to an end. The appellant thereby became entitled to
claim maintenance and will continue to do so, so long as she
remains unmarried and she is unable to maintain herself.
It is contended that the appellant is having two kanals
of land and that, therefore, she is not totally dependent on
the respondent. This aspect of the matter was considered by
the learned Magistrate and after due consideration, he
awarded the sum of Rs.200/- towards maintenance to the
appellant and Rs.100/- to the minor son. Therefore, the mere
fact that she is having two kanals of land is not a
sufficient ground to disentitle her to receive maintenance.
The appeal is accordingly allowed. The orders of the
Additional Sessions Judge and the High Court to the extent
of maintenance to the appellant are set aside and that of
the Magistrate is confirmed. In other words, the appellant
and her minor son are entitled to Rs.200/- and Rs.150/- per
month respectively in terms of the order of the learned
Magistrate and the High Court for maintenance of the son.