If husband and wife live separately by mutual consent, then the wife is not entitled to claim maintenance u/s 125(4) of CrPC
Criminal Procedure Code, Section 125
In the case of Amarendra Nath Bagui vs. Smt. Gouri Rani Bagui and another, (1990 CRI. L. J. 2415), the Calcutta High Court entertained the revision petition filed by the husband against the judgment, which the trial court passed under Section 125 of the CrPC. The order had directed the husband to pay maintenance to the wife from the date of filing the petition.
Here, through the petition, the husband opposed his wife’s claim on the ground that he and her wife are living separately by mutual consent, and that’s why she has no right to claim maintenance against him. She is not entitled to maintenance. Moreover, she has also consented to the second marriage of the petitioner.
The trial court held that the maintenance under Section 125 could not be defeated on the ground of the consent decree of the divorce petition, which the party filed. It passed the maintenance order in favour of the wife; the husband challenged such order given by the trial court.
Here in the case, the High Court rightly observed that it is an additional fact that the wife is living separately with her mutual consent. That’s the way she is not entitled to maintenance U/s.125 of the CrPC. The Court also noted that the wife might be entitled to maintenance under the provisions of the Hindu Marriage Act or in as appropriate action for enforcement of the alleged agreement made between them. However, according to the provisions of Section 125 (4), the whole criteria, and sub-sec (1) of S.125 is a clear bar to her claiming maintenance.
The Court also observed and found that the details of the agreement made between the parties are free to consent. A common desire came out on record to live separately—the spouses living separately by mutual consent. So then, the wife has no right to claim maintenance as she is not entitled to maintenance U/s.125 of the Criminal Procedure Code. To read the full judgment, click this link. Amarendra Nath Bagui vs. Smt. Gouri Rani Bagui and another.
