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No Maintenance if separated by Mutual consent

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF JULY 2013

BEFORE

THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

CRIMINAL PETITION NO.1318 OF 2009

BETWEEN:

SMT.PUSHPA
W/O VASANTHA BANGERA
AGED 49 YEARS
HONNAIAH KULAL COMPOUND,NEAR BAWA TILES
ASHOK NAGAR, MANGALORE – 6 … PETITIONER

[BY SRI.K.SHRIHARI & VIJAYKUMAR P.P., ADVS.,]

AND:

SRI.VASANTHA BANGERA
S/O LATE THIMMAYYA MOOLYA
MAJOR
4TH BLOCK, KATIPALLA POST
KRISHNAPURA,MANGALORE , D.K. …RESPONDENT

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C. WITH A PRAYER TO QUASH THE ORDER DATED 20.09.08 IN CRL.REV.PET.NO.24/2006 PASSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE, D.K., MANGALORE, BY CONFIRMING THE ORDER DATED 30.12.2005 IN M.C.NO.525/2002 PASSED BY THE LEARNED JMFC, III COURT, MANGALORE, THEREBY DISMISSING THE COMPLAINT OF THE PETITIONER.

THIS CRIMINAL PETITION COMING FOR ORDERS ON
THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER
In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner has questioned the legality and correctness of the order dated 20.09.2008 passed by the learned Principal Sessions Judge, D.K., Mangalore in Crl.R.P.No.24/2006 dismissing the said revision petition and affirming the order dated 30.12.2005 passed by the Civil Judge (Jr.Dn.) and JMFC in Mangalore in M.C.No.525/2002 dismissing the said petition filed by her under Section 125 of the Code of Criminal Procedure.

2. The petitioner was married to respondent on 30.01.1981, thereafter for about one year they lived as husband and wife. However, the couple on account of certain incompatibility could not live together. The dispute between the couple was resolved at the intervention of a common well-wisher and both parties decided to live separately by mutual consent. The terms agreed to were reduced into writing and the said document was duly signed by both the parties in the year 1982. Since then, the parties lived separately. However, in the year 2002, petitioner filed a petition under Section 125 of Cr.P.C against the respondent seeking an order of monthly maintenance. The said petition was opposed by the respondent inter alia on the ground that the petitioner is not entitled for an order of maintenance in view of the bar created under Section 125(4) of Cr.P.C, since she has been living separately by mutual consent. During enquiry, respondent produced the original agreement entered into between the parties as Ex.R1. The learned Magistrate after referring to the contents of the agreement Ex.R1 and the evidence of the petitioner as well as her witness, came to the conclusion that the petitioner has admitted the execution of the agreement Ex.R1 and the contents of Ex.R1 would clearly indicate that for the last more than 20 years, petitioner has been living separately from her husband by mutual consent. Therefore, relying on the provisions of Sub-Section (4) of Section 125 of Cr.P.C and also relying on the decision of this Court in MALAYAIAH vs. SMT.G.S.VASANTHA LAKSHMI AND OTHERS reported in 1997(1) KLJ 232, the learned Magistrate held that the petitioner-wife is not entitled for an order of maintenance under section 125 of Cr.P.C. Consequently, the petition came to be dismissed. Aggrieved by the said order, the petitioner preferred a revision petition before the learned Sessions Judge, who on re-appreciation of the evidence on record concurred with the finding recorded by the learned Magistrate and held that the learned Magistrate is justified in dismissing the petition in view of the bar created by Section 125(4) of Cr.P.C. Consequently, the revision came to be dismissed. Questioning the legality and correctness of these orders, petitioner has presented this petition.

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I have heard the learned counsel for the petitioner. As noticed by the Courts below, the evidence on record would clearly establish that in the year 1982 the differences between the petitioner and the respondent was settled at the intervention of a common well-wisher and they entered into an agreement as per Ex.R1 and pursuant to such agreement, the petitioner started living separately from her husband. From 1982 to 2002, the petitioner lived separately from the respondent is an undisputed fact. The petitioner during her evidence before the learned Magistrate has admitted the execution of the agreement. The contents of Ex.R1 would clearly indicate that by mutual consent the petitioner has been living separately from her husband for more than twenty years prior to the petition. According to Section 125(4) of Cr.P.C no wife who is living separately by mutual consent is entitled to receive an allowance from her husband under Section 125 of Cr.P.C. This Court though has held that such an agreement between the husband and wife to live separately is not enforceable for seeking a decree for divorce, however, has held that in a proceeding for grant of maintenance under Section 125 of Cr.P.C such a document can be considered for limited purpose of evidence of fact that they are living separately by mutual consent. Both the Courts below have properly applied the law to the facts of the case and has rightly held that in view of the fact that the petitioner is living separately from her husband by mutual consent for over 20 years is not entitled for an order of maintenance. The orders passed by the Courts below does not suffer from any perversity or legality warranting interference by this Court in exercise of the inherent powers saved under Section 482 of Cr.P.C. Therefore, I find no justifiable grounds to entertain this petition. Accordingly, petition is rejected.

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SD/-

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