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Madras HC: Woman Can’t Demand Maintenance Once She Previously Waived her Right to Maintenance

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Madras High court law insider

Priyanka Singh

Published on: September 22, 2022 at 19:49 IST

The Madras High Court held that once a woman waives her right to maintenance from her husband, she cannot opt for the same after a divorce under mutual consent according to the CrPC.

Justice Bharatha Chakravarthy rejected a revision petition filed by a woman who challenged the decision of a family court that rejected her monthly maintenance by her ex-husband of Rs. 1 Lakh and a lump sum of Rs. 5.80 Cr. for the treatment of their 35-year-old son.

Nevertheless, the Court upheld the family court’s direction asking the husband to pay an amplified amount of Rs. 80,000 to the son suffering from the health issues that include the condition of ‘Refractory Seizure Disorder’.

There were two revision petitions being heard, by the woman and by the husband. The woman sought the maintenance to be given to her which was set aside by the family court, while the husband prayed for the increased amount of maintenance to be stayed.

Background –

In 2005, the couple got separated by mutual consent u/s 13B of the Hindu Marriage Act, when the husband had the custody of the son and took total care of him. The wife had given up on her maintenance at the time of divorce, wanting only her son to be taken care of.

However, the wife had to take the custody of the son in the year 2011, stating that the husband, instead of taking care of the son, had gotten him admitted to a medical care centre.

On the other hand, the husband contends that the wife had previously given upon her maintenance and should not ask for it presently, which the Court upheld quoting the Section 125(4) of the CrPC, clarifying that if a woman lived separately from her husband based on mutual consent.

She won’t be entitled to any maintenance, and highlighted that,

“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 rejected the contention of the payment of Rs.5.8 Crores by the husband considering he was not capable of it financially, also negating the need of medical expertise from the United States since the same, even though not at the same degree, was available in India.

The judgment was passed on 16th September.