Kaur Vs. Surjit Singh @ Jeet Singh  INSC 753 (28 November 1995)
K. Ramaswamy, K. Majmudar S.B. (J)
1996 SCC (1) 39 JT 1995 (9) 138 1995 SCALE (6)739
O R D
appellant was married to the respondent in the year 1971. She filed an
application under Section 125, Code of Criminal Procedure, 1973 [for short,
"the Code"] for maintenance on July 21, 1988. The learned Magistrate by order
dated February 28, 1990 granted a sum of Rs.100/- per
month, i.e., Rs.200/- to the wife and Rs.100/- to his minor son with effect
from the date of the order. On revision, the learned Additional Sessions Judge,
Kapurthala held that the wife was not entitled to the maintenance and granted
Rs.100/- per month only in favour of the son. By its order dated July 2, 1991, the High Court confirmed the same
on the ground that the appellant was residing separately by mutual consent and that,
therefore, she is not entitled to the maintenance. The maintenance to the son
was enhanced to Rs.150/- per month. Thus this appeal by special leave.
have seen the agreement for divorce by mutual consent under which the parties
have settled their terms.
parties have not challenged the validity of the agreement of divorce.
Therefore, we proceed on the premise that it is a valid agreement and the
appellant has stated there under that due to irrecoverable differences between
her and her husband, she has no objection to the divorce and she has no claim
or any demand from him. She has also stated that the respondent is at liberty
to marry anyone of his choice. He accordingly married another lady.
125  of the Code provides as under:
wife shall be entitled to receive an allowance from her husband under this Section
if she is living in adultery, or if, without any sufficient reason, she refuses
to live with her husband, or if they are living separately by mutual
consent." The concept of living separately by mutual consent arises so
long as the marriage subsists and the parties agree to live separately by
consent. In other words, during the subsistance of the marriage, no party is
entitled to lay any claim for maintenance from the other party.
view of the divorce agreement referred to hereinabove, the marital relations
have come to a terminus.
virtue thereof, the respondent had already contracted the second marriage. In
other words, the first marriage has been put to an end. The appellant thereby
became entitled to claim maintenance and will continue to do so, so long as she
remains unmarried and she is unable to maintain herself.
contended that the appellant is having two kanals of land and that, therefore,
she is not totally dependent on the respondent. This aspect of the matter was
considered by the learned Magistrate and after due consideration, he awarded
the sum of Rs.200/- towards maintenance to the appellant and Rs.100/- to the
minor son. Therefore, the mere fact that she is having two kanals of land is
not a sufficient ground to disentitle her to receive maintenance.
appeal is accordingly allowed. The orders of the Additional Sessions Judge and
the High Court to the extent of maintenance to the appellant are set aside and
that of the Magistrate is confirmed. In other words, the appellant and her
minor son are entitled to Rs.200/- and Rs.150/- per month respectively in terms
of the order of the learned Magistrate and the High Court for maintenance of