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PAYMENT OF LUMPSUM AFTER MUTUAL DIVORCE
The Calcutta High Court recently referred to a larger Bench the question of whether a wife can claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) after the marriage has been dissolved by a divorce decree on mutual consent under Section 13B of the Hindu Marriage Act and the payment of a lump sum as full and final settlement. (Prasenjit Mukherjee v. State of West Bengal and Ors.)
Justice Tirthankar Ghosh made the reference upon finding conflicting High Court judgments on the issue.
Once it comes to the knowledge of the Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances?
(a) A fresh case under Section 125 of the Code of Criminal Procedure is filed.
(b)The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure.
(c) Procedure/steps to be adopted by the Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.
The background of the case ;
In the case before the Court, a husband had earlier been ordered by an Alipore Magistrate Court to pay Rs 3,000 as interim maintainance after his wife made an application under Section 125, CrPC (order for maintenance of wives, children and parents). An order to this effect has passed on or around May 4, 2015.
Around May 5, 2015, an application was moved for the dissolution of the marriage under Section 13B of the Hindu Marriage Act by the husband. The Court was told that both parties had amicably settled the matter and that it was agreed that the husband would pay a sum of ? 2.5 lakhs as a full and final settlement for past, present and future maintenance. Upon this payment, it was submitted that the wife would relinquish and forego any other claims and demands.
In November 2015, the Additional District and Sessions Judge, Chandannagore passed a decree of divorce on mutual consent. In cross-examination, the wife also told the Judge that she had received Rs 2.5 lakhs as lumpsum maintanance. This was recorded in the November 2015 order.
Following this development, the husband filed an application under Section 127, CrPC (alteration in allowance) calling on the Alipore Court to set aside the earlier proceedings for maintanance since he had paid Rs 2.5 lakhs as lumpsum maintanance. The Alipore Magistrate, however, declined to acede to the plea, observing that there was no whisper of the Section 125, CrPC proceedings in the application made under Section 13B of the Hindu Marriage Act. As such, the Section 127, CrPC application was dismissed by the Alipore Court in 2017, prompting the husband to move the High Court for relief.
The High Court, in turn, was faced with conflicting judgments on the issue.
The husband asserted that the wife was debarred from making any further maintenance claim under Chapter IX of the CrPC (dealing with provisions relating to maintenance of wives, children and parents).
On the other hand, the wife contended that even after a lump-sum amount is received under Section 13B of the Hindu Marriage Act, she would be entitled to claim maintenance under Section 125, CrPC.
Both parties relied on various case laws supporting their respective stands.
Given that there were contradictory rulings on the topic, and also bearing in mind the SC recent judgement which laid down guidelines in maintenance cases, including in cases where jurisdiction overlaps, the High Court proceeded to refer the issue for conclusive determination by a larger Bench.
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