If husband and wife lived 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 judgement, which the trial court passes under section 125 of the CrPC. The order had directed the husband to pay maintenance to the wife from filing the petition.
Here through the petition, a 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 force based on the consent decree of the divorce petition, which the party files. And 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 additive 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 provision of the Hindu marriage act or in as appropriate action for enforcement of the alleged agreement made between them. However, according to the provision of section 125 (4), is covered the whole criteria, and sub-sec (1) of S.125 is clear bar to her claiming maintenance.
The Court also observed and found the details of the agreement made between the parties are free to consent. A common desire came out on record to live separately—the spouse living separately by mutual consent. So then, after 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.