BAKHSHISH SINGH Vs. HARJIT KAUR

JUDGEMENT

(1.) THE short question that falls for decision in this revision petition is 'whether the fact that the respondent was living separately from the petitioner in terms of this stipulations contained in the deed evidencing dissolution of their marriage, would constitute at a bar under Section 125 (4) of the Code of Criminal Procedure (for short, the Code) to her claim for maintenance under Section 125 (1) of the Code.'

(2.) AT the very outset I would wish to record that for the detailed reasons stated hereinafter, the answer to the aforesaid question has to be rendered in the negative because of the massive weight of precedents, the clear and the specific provision of Section 125 (1) of the Code and upon larger principle. The view I am inclined to take has the support of a Division Bench decision of Allahabad High Court in Prakash Chandra Verma v. Praksashwati alias Krishna Devi 1983 Hindu Law Reporter 613 and a single Bench decision of this Court in Balbir Singh v. Shmt Cahhno alias Jagir Kaur 1982 Marriage Law Journal 265.

(3.) THE learned counsel for the petitioner has pointed out that a divorced wife is a person living separately by mutual consent and is, therefore, not entitled to any maintenance from her former husband. the learned counsel submits that tin view of the terms in the Deed of Divorce and the statements of the parties marked 'A' and 'B' the respondent has waived her right to maintenance. I reget my inability to accept this contention. The legislature in its wisdom conferred that right upon the 'wife'(which expression includes under the new Case a divorced wife) to claim maintenance from her former husband notwithstanding the dissolution of the marriage. Therefore, there was no question of waiver of any right which was vested in the wife. The question of waiver can arias only when a person consciously abandons or waives a right to which he or she in law was entitled to. In the circumstance it cannot be validly contended that the wife had waived any right. Under Section 125 of the Code, a divorced wife is entitled to claim maintenance.