Marimuthu vs Janaki (Madras HC) (Crl.R.C. No. 1491 of 2005)
6. The learned counsel for the revision petitioner, drawing the attention of the Court to Sub Clause 4 of Section 125 Cr.P.C., contended that a wife who is living away from her husband by mutual consent between the husband and wife, would not be entitled to an order of maintenance under Section 125 Cr.P.C; that even if an order of maintenance happened to be passed under Section 125 Cr.P.C. earlier in point of time and subsequently they continued to live separately by mutual consent, Sub Section 5 provided for cancellation of such an order of maintenance and that hence, the order of the Judicial Magistrate passed in utter disregard of the said provisions and Exhibit R.1 should be held discrepant, unsustainable in law and liable to be set aside in exercise of the revisional powers of this Court.
7. On the other hand, the learned counsel for the respondent contended that the mutual consent for separate living, as found in Sub clauses 4 and 5 of Section 125 Cr.P.C., to be effective and acted upon by the Court dealing with the petition under Section 125 Cr.P.C. should have been incorporated in a decree or order of a competent Court and otherwise the same would be ineffective.
10. A bare reading of the said sub Sections will make it clear that the said provisions did not require the incorporation of the mutual consent arrived between the parties for living separately in any decree or order of a competent Court to constitute a valid defense in a petition under Section 125 Cr.P.C. claiming maintenance. Therefore, this Court is not in a position to countenance the above said argument advanced by the learned counsel for the respondent (wife). As rightly pointed out by the learned counsel for the revision petitioner, the genuineness of Exhibit R.1 has not been disputed by the respondent. Of course, the said document which contains recitals to the effect that each of the parties to the said document was free to contract marriage with the person of his/her choice, the same cannot be construed to be a valid document bringing about the dissolution of marriage. However, clear recitals have been found in the said document evidencing mutual consent between the revision petitioner and the respondent to live separately.
11. The said document was dated 21.10.2002. It clearly spells out the mutual consent of the parties to live separately. The learned Judicial Magistrate, without properly appreciating the said document and without applying the principle of law found in Sub-Section 4 of Section 125 Cr.P.C., has erroneously held that the respondent (wife) was entitled to maintenance. The said order passed by the learned Judicial Magistrate, which is against the spirit of the statute and passed in ignorance of the said statutory provision, is definitely infirm and discrepant. The non- application of the said statutory provision to the case on hand by the learned Judicial Magistrate will make his order unsustainable. This Court is satisfied that the said order has got to be set aside in exercise of the revisional powers of this Court.