Wife living separately by mutual consent is disentitled to maintenance under Section 488(5) Cr.P.C. despite subsisting marriage.

The parties married in 1990.

In 1995, the petitioner (wife) withdrew bigamy and maintenance proceedings after receiving ₹10,000 as a full settlement and executing a customary divorce (farakhtnama).

Between 1995 and 2007, she lived separately and only sought maintenance for her son, describing herself as a divorcee.

In 2008, she filed a fresh petition under Section 488 Cr.P.C.

After multiple rounds of litigation and a failed Lok Adalat settlement of ₹2.5 lakhs, the Trial Court granted maintenance in 2020.

However, the Revisional Court set this aside, holding the parties lived separately by mutual consent.

The petitioner challenged this reversal, while the respondent challenged a salary deduction order.

1. Whether a wife is entitled to maintenance under Section 488 Cr.P.C. (equivalent to Section 125 Cr.P.C.) when she resides separately by mutual consent following a voluntary settlement.

2. Whether an informal agreement or customary divorce, absent strict proof of custom, can dissolve a marriage under the J&K Hindu Marriage Act, 1980.

3. Whether the High Court can exercise inherent jurisdiction under Section 482 Cr.P.C. to award a lump-sum settlement to prevent destitution despite a statutory bar to monthly maintenance.

The Court applied Section 488(5) of the Cr.P.C., which mandates that no wife shall be entitled to receive maintenance if she is living separately by mutual consent.

It relied on *Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi*, establishing that clear admissions are the best evidence against the maker.

Regarding the validity of marriage, it noted that under the J&K Hindu Marriage Act, 1980, a marriage can only be dissolved by a decree of divorce or a strictly proved custom.

Furthermore, it applied the principle from *Vijay Kumari v. Ashwani Kumar*, holding that a wife’s right to future maintenance is a matter of public policy and cannot be entirely bartered away via private agreement if circumstances change.

The Court found that while the respondent failed to prove a valid customary divorce to legally dissolve the marriage, the petitioner’s conduct since 1995—accepting a lump sum, describing herself as "divorced" in court filings, and remaining separate for over a decade—constituted clear evidence of living separately by "mutual consent" under Section 488(5).

The Revisional Court did not err in its jurisdiction because it relied on the petitioner's own judicial admissions.

However, the Court observed that the petitioner is currently destitute and the 1995 settlement of ₹10,000 was meager by modern standards.

Drawing from Section 31(2) of the Hindu Marriage Act, the Court reasoned that statutory provisions for maintenance aim to prevent vagrancy, and a husband’s subsequent financial improvement (securing government employment) justifies an upward revision of the one-time settlement amount originally agreed upon in later failed mediation.

However, invoking inherent powers to ensure substantial justice and prevent destitution, the Court directed the respondent to pay a one-time settlement of ₹2.50 lakhs.

CRM(M) No. 444/2020 and CRM(M) No. 279/2021 were dismissed with the direction that the lying FDR of ₹1.40 lakhs be released to the petitioner, and the balance be paid within six months.