Divorce with mutual consent-view points
VISHNU
(Querist) 03 December 2011
This query is : Resolved
sir
1. A husband and B wife decided to put petition for divorce with mutual consent. B wife is living with daughter aged 11 yrs in her mother's house. kindly note that in her earlier maintenance petition under civil law, B was denied maintenance because of her deserting husband and also false allegation of dowry demand but child granted maintenance.
Query:
(a) After taking mutual divorce by wife with a sum of Rs 2 Lakh by waiving her right of maintenance after divorce, can she again entitled to claim maintenance as a divorcee from ex husband under cr pc.?
(b) Supply if there is any sample deed of agreement that should be mentioned in mutual divorce case, so that after divorce maintenance proceedings shall not start.
(c) Can lump sum maintenance be given to child in same divorce deed between couple?
(d) If an application is filed in same court by wife u/s 125 Cr pC that her right to claim maintenance after divorce be decided as per her undertaking that she will not claim any maintenance as a divorcee, as she likely to get lumpsump payment from husband. Can court after granting mutual divorce can decide this application also please.
ajay sethi
(Expert) 03 December 2011
1)once wife has waived her right of maintenance and taken lumpsum amount she cant claim maintenance again
2) have a clause insetted in agreement between parties that she accepts x amount as lumpsum payment in full and final settlement and that she shall not be entitled to claim any maintenance amount
3)it would depend upon terms agrred upon between parties for welfare of child
4) an application can be filed under section 127 of the CrPC to modify or cancel the order of maintenance, if changed circumstances are pointed out. For a divorced wife, it would be if she has remarried or has received a lump-sum payment on divorce or if she has surrendered her maintenance rights.
the family court judge was then well within his powers to order interim maintenance, even ex parte. An application could be filed to seek alteration of the terms of maintenance,.
Advocate M.Bhadra
(Expert) 03 December 2011
A divorced wife has a claim of maintenance,on a simple reading of explanation (b) to sec.125 Cr.P.C. it becomes clear that every divorced wife otherwise eligible is entitled to the benefit of Maintenance allowance.Even where the marriage has been dissolved by mutual divorce,the divorced wife unable to maintain herself can claim maintenance till she re-marries.(Ref :Sadasivam Pillai Vs. Vijaya Lakshmi 1987 Cr LJ 765:1986, 3 Crimes 508:1987,1 Ker LT 381)
VISHNU
(Querist) 07 January 2012
sir
The question is not fully answered
thanks
