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apoorindian (System Admin)     24 March 2010

Maintenance after Mutual Divorce Agreement

Dear All,

I am a victim of false 498a. Now I am working out a compromise. My lawyer says that even if girl signs agreement that she will not claim maintenance in the future she can still claim. He says that such an agreement is no longer foolproof.

he showed me an article in the legal lawjournal where it is stated that even if girl signs a no maintenance claim agreement she can claim maintenance after Mutual Divorce.

Please educate

regards



Learning

 11 Replies

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     24 March 2010

Dear Author,

I want to talk to u in person as there are some queries from my side to u. My no. is 9871158578.


(Guest)

1. Your Lawyer is 100% right.
2. It is other matter that past trend shows that out of some 1000 mutual consent agreed divorce cases 2-3 cases have opened up.
3. But given to understand the changing dianamics in women centric laws as in present tense there will atleast 20% rise in above quoted numbers each year in each State.
4. The only 'unfortunate solution" to your question lies in "winning a divorce as well as S. 125 CrPC and DV cases in yoru favour" then she can't claim maintenance under any Act post decree. But if couple have child out of the marriage and custody is granted to mother (ex wife) then till 18 years can always approach Court under enhancement of maint to child and lookign at rising price index even Hon'ble SC have re-opened those case.
BTW the solution I suggested is the most painful and long drawn contest suggestion which very few can dare to walk the talk.
Rgds.


(Guest)

There are some instances, where the court granted maintenance to the divorcee after the decree in the mutual consent divorce decree is granted.  Those are exceptions.  But even then you can safeguard yourself by clearly mentioning in the agreement that she would not seek maintenance under any provisions of any law existing at present (clearly mention the provisions of various Acts, i.e., S.125 etc.) or in future enacted and under any changed circumstances.  The amount that is being received in the settlement is full and final and there will be no claim to the wife from husband etc. etc. clearly and explicitly and not impliedly.  Then she will not have any change to claim maintenance.


(Guest)

Sh. Prabhakar ji,

STATE can't be made party to "criminal maint. settlements" as in alimony (be it U/s 125 CrPC and or even under recently enacted DVA) 

I tried that practically in my own case and STATE refused to be party to it saying how Chief Secretary (of Delhi State) can take burden of enhancement of one time alimony amount for State subjects (wife) when price index in future rises and or when ex wife who remained un married falls sick and or ex wife having custody of child and remaining un married is not able to maintain the child and or ex wife left with looking after her widowed mother is not able to pay for her medicals post all settlement between parties previously?. 

Sir these are some of the grounds SC and some of the State HC's says to grant relief post all well drafted settlement deeds. I am not making any of these up? Read yourself.

Criminal maint. part is always continuous which even Hon'ble SC says when SC opened all those past well settled MC D cases (1 of the case opened was of after 17 years after a well settled MC D happend between parties and ex lady suddenly woke up after a decade to claim enhancement of maint alimony can you believe that it happened) and for confirmation you may refer to my own posts on same subject here where I asked the same question and invited ld. members for further debate and not many showed interest.
PS.: These re-opened cases are less in number currently and I will not be surprised if I see rise in these reopenning of cases very soon the way binding law of SC and or some of the States are curning their own interpretations.
Rgds.

apoorindian (System Admin)     24 March 2010

Dear All,

Thanks everybody for your answers. Mr. Prabhakar Sir we are not paying any money as full and final settlement. This wont be mentioned in the agreement. Can this not paying any full and final amount

lead to any further problemsbut girl as of now has agreed).

regards


(Guest)

Mr. Apoorindian,

Generally in those cases full and final settlement is made.  In your case if it is not there, it is o.k.  No need to mention.  But her relinquishment to file maintenance application / suit / case / writ / SLP under the provisions of existing present Acts and Future Acts have to be mentioned.


(Guest)

Mr. D. Arun Kumar,

If there is an application for enhancement of maintenance in the changed circumstances, it is a statutory right and it can be given.  Similarly, if a person is not relinquishing his/her right to get maintenance in Mutual consent divorce petition and later on seek the same, it can also be understood.  If any express agreement has been made by the party relinquishing the right for getting maintenance in the open court and later on come and seek maintenance without having any plea that earlier settlement was made under duress, then it would be except in exceptional cases will be allowed.  I have not seen many cases pertaining to latter category. 

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     29 March 2010

I want to talk 2 u in person, der r some queries to ask from u. my no. is 9871158578

Rajadiraja (Advocate/consultant )     02 April 2010

Would suggest both the parties together discuss with an advocate and as Mr.Prabhakar suggested, you can safeguard yourself by clearly mentioning in the agreement that she would not seek maintenance under any provisions of any law existing at present (clearly mention the provisions of various Acts, i.e., S.125 , DV Act, etc.) or in future enacted and under any changed circumstances.  The amount that is being received in the settlement is full and final and there will be no claim to the wife from husband etc. etc. clearly and explicitly and not impliedly.  It should also be mentioned that the settlement is not out of duress and that she is fiancially capable of maintaining herself.  There should be a clear  relinquishment of his/her right to get maintenance in Mutual consent divorce petition. 


 

Devajyoti Barman (Advocate)     02 April 2010

Yes, your advocate is absolutely correct as all agreement in restraint of legal proceeding is not enforcible. The Supreme Court in catena of decisions has clearly mentioned that the wife can not waive her right of maintenance by sighning any agreement .

Bidhan Dave (Advocate)     14 April 2010

I agree with Adv Devajyoti Barman. An agreement against the law is not enforceable.


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