If a woman agrees to waive her right to claim maintenance from her husband, and opts for a divorce by mutual consent, she cannot later demand maintenance under the Code of Criminal Procedure (CrPC), the Madras High Court has held.
In a judgment passed on September 16, Justice Bharatha Chakravarthy rejected a revision petition filed by a woman challenging the decision of a family court that had refused to direct her ex-husband to pay her a monthly maintenance of ₹1 lakh, and to pay a lump sum amount of ₹5.80 crore for the medical treatment of their 35-year-old son.
Justice Chakravarthy, however, upheld the family court’s direction asking the husband to pay an enhanced monthly maintenance of ₹80,000 to the son, who suffers from ‘Refractory Seizure Disorder,’ and has other related health issues.
The Court was hearing two revision petitions, one filed by the woman seeking that the family court order denying her maintenance be set aside, and another filed by the husband, seeking that the family court order asking him to pay monthly maintenance of ₹80,000 instead of the current ₹20,000 to his son, be stayed.
The couple got divorced in 2005 by mutual consent under Section 13B of the Hindu Marriage Act. At the time, the husband had custody of their son and he undertook to take full care of him. The wife gave up her claim to maintenance at the time, saying that she did not need anything else except that her son be taken care of.
However, in 2011, the wife took custody of the son, claiming that the husband did not keep his word on looking after their son, and had instead got him admitted to a medical care centre.
Before the High Court, the wife claimed that she had forgone her rights to maintenance trusting that the father will continue to maintain the son properly. But, to her shock, the father had “dumped” the son in the said institution, she said.
On the contrary, the husband argued that once the wife had given up her claim to maintenance, she could not ask for it now.
The Court said that while a divorced wife had a right to maintenance, Section 125(4) of the CrPC made it clear that if a woman was living separately from her husband based on mutual consent, she was not entitled to any maintenance. Referring to the judgment in the mutual consent petition, the Court highlighted,
“Secondly, even in the judgment of mutual consent petition, the default situation is also taken care of. If the father has not taken care of the son and if the mother takes custody of the child, then the maintenance is payable only to the child and therefore, in that view of the matter also, which is also the own doing of the mother herself in agreeing for such arrangements, the contention cannot be accepted.”
The Court also refused to direct the husband to pay ₹5.8 crore as a lumpsum for medical expenses of their child, saying that it could not conclude that he was financially capable of paying such an amount.
Besides, just because the wife had claimed that the medical expertise was more and the risk factor for treatment was lesser in the United States, the same could not be held as an essential need.
“Treatment in the U.S.A cannot be held by this Court as an essential need when the same is available with proper experts in India itself, though not of the same degree as in the United States of America as per the perception of the mother,” the judgment said.
The wife appeared in person, while Advocate N Manoharan appeared for the husband.