Wife Entitled To Maintenance When Promises Made By Husband In Agreement To Live Separately Not Complied With: MP High Court

Madhya Pradesh High Court has recently held that when the husband has taken a step back from the promises made in the agreement to live separately, then it can't be said that the wife is living separately by mutual consent.

The single-judge bench of Justice Vishal Dhagat also clarified that the wife will be entitled to maintenance in such instances.

“... Petitioner No.1 agreed to live separately on the basis of promises made in the agreement. Since respondent resiled from promises made in the agreement therefore, it cannot be said that petitioner is living separately by mutual consent”, the bench sitting at Jabalpur observed.

The court also added that the trial court has erred in dismissing the application filed by the wife for the grant of maintenance to her and her two children under Section 125(5) of Cr.P.C. The court accordingly directed the respondent-husband to pay the maintenance of Rs 5,000/- per month to the wife and Rs 2,500 each to the children aged 18 and 11 years.

The present revision petition under Section 397/401 of Cr. P.C was filed pursuant to the order passed by the First Additional District Judge, Family Court, Jabalpur. In the petition before the lower court for grant of maintenance, the respondent was proceeded against ex-parte.

According to the wife, the respondent-husband had an illicit relationship with another woman. Soon, the husband allegedly started harassing the wife; she was also forced by the respondent-husband to execute an agreement to live separately. As per the agreement, the respondent-husband was supposed to pay Rs 2000/- as maintenance with an annual increment of 10% and grant one acre of land for agriculture along with Bidi bundles. However, the petitioner allegedly refused to adhere to the terms and conditions of the agreement.

The lower court dismissed the application for maintenance on the ground that the decision to live separately as enunciated in the agreement was with mutual consent. The lower court also gave the wife liberty to assail the agreement separately in accordance with law.

Earlier, the counsel for the petitioner wife and children had submitted that the agreement is an unregistered document and not binding on other parties. According to Section 125(4), wife won't be entitled to receive maintenance if the spouses are living separately as per mutual consent. However, as per the wife, she has not received any amount as maintenance despite the agreement.

Advocate Shivendra Pandey appeared for the petitioners.

Case Title: Smt. Nagina Bano & Ors v. Mohd. Naeem Ali

Case No: Criminal Revision No. 2412 OF 2022

Citation: 2024 LiveLaw (MP) 21

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