Private Agreement Cannot Dissolve Marriage But Can Be Relied On To Prove Mutual Separation, Act As Bar To Maintenance: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court has held that even though a private agreement cannot dissolve a statutory marriage, such agreement can be relied upon to determine whether the spouses were living separately by mutual consent, in which case the bar under Section 488(5) Cr.P.C. (Pari Materia with Sec 125 CrPC) would operate to deny maintenance.Conversely, the court clarified, if neglect and refusal on the part of the husband is established and separation is not by mutual consent, the statutory right to maintenance would subsist notwithstanding any informal arrangement.The Court was hearing petitions under Section 482 Cr.P.C. challenging the order of the Revisional Court which had set aside the grant of maintenance under Section 488 Cr.P.C. and held that the petitioner was not entitled to maintenance on the ground that the parties were living separately by mutual consent.A Bench of Justice Sanjay Parihar observed, “... While an agreement per se may not dissolve a statutory marriage unless backed by a decree under the Hindu Marriage Act or by a proved custom, such agreement is certainly relevant to determine whether the parties are residing separately by mutual consent. If it is found, on appreciation of evidence, that the spouses have voluntarily agreed to live apart and the agreement has been acted upon with due settlement of rights and liabilities, the bar under Section 488(5) Cr.P.C. would disentitle the wife from claiming maintenance thereafter”Background:The marriage between the parties was solemnised in 1990 and a son was born from the wedlock. Proceedings under Section 488 Cr.P.C. and Section 494 RPC were earlier compromised in 1995, where the petitioner stated that she had received ₹10,000/- as full and final settlement and would not pursue further proceedings, after which the parties started living separately. In subsequent proceedings relating to maintenance of the minor child, the petitioner described herself as divorced and did not claim maintenance for herself for several years. In 2008, the petitioner filed a fresh petition under Section 488 Cr.P.C. The Chief Judicial Magistrate granted maintenance, but the Revisional Court set aside the order holding that the parties were living separately by mutual consent and therefore the petitioner was disentitled to maintenance under Section 488(5) Cr.P.C. Aggrieved, the petitioner invoked the inherent jurisdiction of the High Court.Court's Observation:The Court first noted that both courts below had recorded a concurrent finding that the respondent failed to prove existence of a valid custom permitting dissolution of marriage, and therefore the settlement deed executed between the parties could not by itself dissolve the marriage under the J&K Hindu Marriage Act. However, the Court clarified that the question of dissolution of marriage was distinct from the issue whether the petitioner was living separately by mutual consent, which is relevant under Section 488(5) Cr.P.C. It was observed that the record showed that the petitioner had withdrawn earlier proceedings after compromise, accepted monetary settlement, described herself as divorced in later proceedings, and remained separate for a long period without asserting marital rights. These admissions formed substantive evidence against her, the Court opined. The Court reiterated that proceedings under Section 488 Cr.P.C. are summary in nature and the Magistrate is only required to see whether there was marriage, whether the parties lived together, and whether neglect or refusal to maintain was established. Questions relating to strict validity of marriage fall within the domain of civil courts, it underscored. Referring to precedents, the Court held that even if an agreement does not legally dissolve the marriage, it may still be relied upon to ascertain the intention of the parties and the nature of their separation, and where spouses have agreed to live apart permanently and acted upon the arrangement, the statutory bar under Section 488(5) Cr.P.C. would apply. Applying these principles, the Court found that the petitioner's own conduct showed that the parties had acted upon the settlement of 1995 and had been living separately by consent. The finding recorded by the Revisional Court that there was no proof of neglect or refusal was based on the record and did not suffer from perversity, the Court maintained. Observing that although the marriage was not legally dissolved, the court stated that the material on record established that the parties were living separately by mutual consent, attracting the bar under Section 488(5) Cr.P.C., and therefore the petitioner was not entitled to maintenance.In consonance with these findings the petition was dismissed and the order of the Revisional Court was upheld.Case Title: Sarita Devi Vs Mohan SinghCitation: 2026 LiveLaw (JKL) Click Here To Read/Download Judgment

Private Agreement Cannot Dissolve Marriage But Can Be Relied On To Prove Mutual Separation, Act As Bar To Maintenance: J&K&L High Court

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