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No upkeep if subdivision by mutual consent


Bench: JUSTICE B.N. Mallikarjuna



This rider is by a father doubt a legality and exactness of a sequence of a District and Sessions Judge, Mandya antiquated Aug 7, 1993 in Cr.R.P. No. 66(A)/91 outset out of a sequence antiquated Apr 1, 1991 in C. Mis. No. 75/88 on a record of a Learned Magistrate, Srirangapatna extenuation upkeep of Rs. 300/- per month to any one of 3 respondents with serve instruction that a volume awarded in foster of 1st respondent to be paid from Apr 1, 1991. Learned Magistrate had refused upkeep to a 1st respondent and had systematic upkeep during a rate of Rs. 250/- any for respondents 2 and 3.

2. we would impute to a parties hereinafter as they are decorated in a strange petition before a schooled Magistrate.

3. Petitioners done an focus underneath Section 125 of Cr.P.C. opposite a respondent praying for atleast a sum of Rs. 1500/- per month for their maintenance. It is undisputed that 1st postulant G.S. Vasanthalakshmi and a respondent Malayaiah belonging to opposite communities married on Apr 12, 1981 and their matrimony came to be purebred in a bureau of a Registrar of Marriages during Mysore on Apr 25, 1981. They continued to live together for about 6 years after a matrimony and during that time they had dual daughters and they are petitioners 2 and 3. It is usually afterward a brawl arose given a father suspected a fealty of a 1st petitioner. It is also purported that given afterwards a father carrying sufficient means neglected to say his mom and dual daughters. Respondent resisted a focus contending inter alia that on Mar 28, 1988 a mutual agreement was entered into between a father and mom styled as “Agreement for divorce by consent” and given afterwards they have concluded to live alone by mutual agree and therefore mom is not entitled for maintenance.

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4. Petitioner examined herself, constructed papers Exs. P-1 to 18 in support of their case. Respondent examined himself, another declare by name Narasimharaju, constructed papers Exs. R-1 to 5. Learned Magistrate after deliberation both verbal and documentary justification and also after conference a Counsel for a parties, by sequence antiquated Apr 1, 1991 deserted a explain of a wife, postulated Rs. 250/- any for petitioners 2 and 3.

5. Aggrieved by a order, mom questioned it before a District Sessions Judge, Mandya in Cr.R.P. 66(A)/91. The schooled Sessions Judge by sequence antiquated Aug 7, 1993 authorised a rider in part, postulated upkeep even to a wife, extended a upkeep postulated to a daughters and destined that a sum of Rs. 300/- any shall be paid and for a mom it shall be paid from Apr 1, 1991 Correctness of this sequence is underneath challenge.

6. Sub-section (4) of Section 125 of Cr.P.C. disentitles a mom from claiming upkeep underneath Section 125, Cr.P.C. in cases where a father and mom live alone by mutual consent. Sub-section (5) serve provides for termination of any such sequence underneath Section 125, Cr.P.C. subsequently, on explanation that father and mom are vital alone by mutual consent. It is so transparent that a mom vital alone from her father by agree can't make her right and ask for upkeep underneath Section 125, Cr.P.C.

Ex. R-4 is die agreement purported to have been executed by a mom expressing her eagerness to live alone from a husband. RW-1 father and RW-2 Narasimharaju, Senior Assistant in Maharaja’s College, Mysore, pronounce to a execution of a request Ex. R-4. 1st petitioner-wife contends that it is combined by her father to equivocate remuneration of maintenance. However, it is elicited in interrogate of a postulant that she had no malignity or brawl with RW-2 Narasimharaju, that her mom has sealed a agreement Ex. R-4 as a declare and both of them sealed it during Vontikoppalu on Mar 28, 1988. Mother of a mom is lettered and a late propagandize teacher. No excusable or acceptable justification is placed on record to justify a matter of a mom that request Ex.R-4 is combined for a purpose of avoiding remuneration of maintenance. In a circumstances, it is rather formidable to accept a matter of 1st petitioner-wife that request Ex. R-4 is combined by a husband-revision postulant to equivocate his guilt to compensate her.

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7. Learned Sessions Judge while referring to this request binds that it is an agreement unenforceable as against to open policy. True, there can't be any created agreement between father and mom for divorce discordant to a supplies contained in Hindu Marriage Act, both spouses being Hindus. Learned Sessions Judge, however, binds that request can be deliberate for a singular purpose. Even then, he fails to conclude that this request is executed by mutual agree and given afterwards they live alone by consent. Ignoring this aspect of a matter, Learned Sessions Judge interferes with a sequence of a Learned Magistrate refusing to extend upkeep to a mom that is conjunction scold nor correct. Therefore, as distant as a extend of upkeep to a mom by a Learned Sessions Judge can't be maintained.

8. Learned Counsel for a rider postulant while arguing brought to my notice that in a year 1991 rider petitioner-husband done an focus in a Court of Civil Judge, Srirangapatna underneath Section 13 of a Hindu Marriages Act for divorce. In that application, a corner petition was filed both by a father and mom and on Jan 2, 1995 a Court available a concede and postulated direct of divorce dissolving a matrimony by direct of divorce given a father paid a lumpsum of Rs. 75,000/- and that was concluded to by a wife, approved duplicate of a order-sheet is constructed in Court today.

9. In courtesy to a extend of upkeep for respondents 2 and 3, a sequence underneath plea can't be uneasy for some-more than one reason. The Learned Magistrate postulated upkeep to daughters during a rate of Rs. 250/- any per month and that has not been challenged by a father viz., rider petitioner. Learned Sessions Judge enhances that volume by another 50/- directing a father to compensate a sum of Rs. 300/- any per month. It is transparent from a justification that rider postulant is operative as a techer and his income is Rs. 4100/- a month. In a resources and carrying courtesy to a cost of education, cost of living, Rs. 300/- any to a petitioner’s dual daughters can't be hold to be excessive. Therefore, a sequence extenuation upkeep to respondents 2 and 3 can't be disturbed.

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10. In a outcome and for a reasons settled above, this rider is authorised in part. Order directing a rider postulant to compensate Rs. 300/- a month to his wife-1st respondent by a sequence impugned is set aside. Revision postulant shall compensate respondents 2 and 3 upkeep during a rate of Rs. 300/- a month.

Revision partly allowed.

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