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Wife who agrees to forego maintenance after divorce is no longer entitled to it: Madras HC

Madras High Court dismissed a revision petition brought by a woman who was contesting a family court’s refusal to order her ex-husband to pay her a monthly maintenance payment of Rs. 1 lakh and to make a lump sum payment of Rs. 5.80 crore rupees for the treatment of their 35-year-old son.

In this instance, the couple divorced each other amicably in 2005. The father had custody of the child at that time. The wife had turned down alimony, arguing that if the child was being raised properly, there was no need for it.

In 2011, the mother obtained custody of the child on the grounds that the father was failing to provide for the child’s needs. The wife then brought a maintenance lawsuit before the family court.

In his decision Justice Bharatha Chakravarthy issued a ruling “The right to alimony does not exist if the woman is living independently and was divorced by mutual consent.” he further said, “if the woman has declined alimony on her own, she cannot claim it again.”

If the mother is caring for the child and the father has not assumed responsibility for the child, only the child receives maintenance. The judge rejected the woman’s argument but mandated that the child receive Rs 80,000 a month in medical expenses.

The Court states that a divorced wife has a full right to claim maintenance from her husband under section 125(4) of CrPC, but if the woman is already living separately based on the mutual divorce, then she is not entitled to such maintenance.

“Second, the default position is addressed in the judgement of the petition for mutual consent. Therefore, in that perspective of the case as well, which is also the mother’s own doing in opting for such arrangements, the contention cannot be accepted. 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. “

Finally, the court disagreed to order the husband to pay any alimony or maintenance to the wife, and further stated that the son’s treatment in the USA is not urgent when similar treatment is available in India.

Ahir Mitra
Ahir Mitra

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