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How to get maintenance after the withdrawal of an application under section 125 crpc

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Maintenance

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Sir, I want to know that How to get maintenance after the withdrawal of application under section 125 crpc? My husband cheated me and deceitfully took my consent in the compromise deed. He promised to pay 45 lakh rupees as one-time settlement for the divorce and relinquishment of maintenance. I was in deep frustration because my husband has an extramarital relationship and my marriage was broke out within one and a half years.

My parents were also not ready but due to immense pressure from all the sides, they gave consent. He filed that compromise deed in the court and disposed of all the litigations. After getting divorced and settlement of all the legal proceedings he refused to perform the terms of compromise deed. Now I am facing a financial crisis and he refused to give any assistance what should I do?

Question from: Uttar Pradesh

In this situation, you should move a civil suit under Section 18 of the Hindu adoption and maintenance act 1956. However, you have withdrawn all the cases from the court but your right to maintenance is still subsisting. You are entitled to get maintenance under Section 18 despite you have withdrawn your application under section 125 crpc.

Your husband played fraud and deceitfully took your signature on compromise deed. A compromise is a contract therefore consent of parties must be free. Free consent of both parties the mandatory for a valid compromise.

Withdrawal of an application under section 125 crpc

The order of maintenance made under section 125 of the code of criminal procedure is tentative and subject to the final determination of maintenance by a competent Civil Court. This is the scope of section 125 CrPC so far as related to the nature of the order. Therefore, section 125 CrPC does not impose any restriction on claiming maintenance under Section 18 of the Hindu adoption and maintenance act. You can claim maintenance under Section 18 even though you have withdrawn the MC under section 125 CRPC.

In Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452 Supreme Court has held that section 125 CrPC does not intend to provide a full and final determination of the status and personal rights of the parties, which is in the nature of a civil proceeding, though are governed by the provisions of CrPC and the order made under Section 125 CrPC is tentative and is subject to the final determination of the rights in a civil court.

Compromise deed is void under the contract act

The compromise deed is void according to the provisions of the Indian Contract Act. Your husband has cheated you by making false promises in the compromise deed. He had no intention to perform his promise at the time of the making of that compromise deed. Therefore that deed is void under section 19 of the Indian Contract Act.

You should file an appeal before the appellate court to set aside the consent decree. Your husband has played fraud which you can prove by his subsequent conduct. He did not perform his promise which he made in the compromise deed. All the promises are false and frivolous. He had no intention to perform his promise despite that he signed the compromise deed. All these facts are sufficient to set aside the consent decree.

How to get maintenance?

According to Section 18 Hindu Adoption and Maintenance Act, a Hindu wife is entitled to be maintained by her husband during her lifetime. Hindu wife has the right to maintenance however she is living separately from her husband. If she has reasonable ground to live separately from her husband then she is entitled to the maintenance. She is not entitled to maintenance if she is unchaste or ceases to be a Hindu by conversion to another religion. The husband is bound to maintain his wife in the following conditions.

  • If he has deserted his wife without reasonable cause or her consent or against her will.
  • When the husband has committed cruelty to such an extent which causes reasonable apprehension in the mind of wife that it will be harmful or injurious to live with her husband.
  • If the husband is suffering from a virulent form of Leprosy.
  • When the husband is living with a concubine in the same house in which his wife is living.
  • If the husband habitually resides with a concubine at any other place.
  • If the husband has any other wife living.
  • When the husband is ceased to be a Hindu by conversion to another religion.
  • There is another cause justifying for the wife to live separately.

You should file a civil suit under Section 18(2) of the Hindu adoption and maintenance act. Your petition is maintainable and you will get the maintenance from your husband.

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shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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