J&K HC Upholds Bar on Maintenance for Wife Living Separately by Consent, Orders Rs. 2.5 Lakh One Time Payment to Prevent Destitution

The High Court of Jammu & Kashmir and Ladakh has directed a husband to pay Rs. 2.5 lakh as a one-time settlement to his wife while upholding a revisional court’s finding that she was not entitled to maintenance under Section 488 of the Code of Criminal Procedure, noting that the parties had been living separately by mutual consent for several years.

The Court observed that although such consensual separation disentitles a wife from claiming maintenance under the statutory provision, courts must still remain mindful of circumstances that may lead to financial hardship or destitution.

Justice Sanjay Parihar passed the direction while deciding two connected petitions arising from maintenance proceedings between the parties.

"It is well settled that a private agreement cannot defeat or nullify the operation of statutory provisions meant to secure maintenance and prevent destitution, particularly when such arrangements may run contrary to public policy", it was observed.

While dismissing the wife’s challenge to the revisional court order which had denied maintenance, the Court exercised its jurisdiction to advance the cause of justice and directed the respondent-husband to pay Rs. 2.5 lakh to the petitioner within six months as a one-time settlement.

The dispute between the parties arose from a marriage solemnised in 1990, from which a son was born who has since attained majority.

According to the record, the relationship between the spouses deteriorated and they entered into a settlement on 28.08.1995.

Under the terms of that arrangement, the petitioner-wife withdrew earlier criminal proceedings and a maintenance petition after receiving Rs. 10,000 as full and final settlement.

A document described as a “farkhati” was executed and the parties thereafter began living separately.

For several years following the settlement, the petitioner did not claim maintenance for herself. Instead, subsequent proceedings were initiated only for the maintenance of the minor son, which were settled before the Lok Adalat with the respondent agreeing to pay monthly maintenance for the child until he attained majority.

During these proceedings, the petitioner described herself as divorced and sought relief only for the child.

More than a decade after the initial settlement, the petitioner instituted fresh maintenance proceedings under Section 488 CrPC.

The Chief Judicial Magistrate, Ramban eventually allowed the petition in 2020 and directed the respondent to pay Rs. 2,000 per month as maintenance from the date of filing of the petition along with an annual enhancement of ten percent.

The respondent challenged this order before the Principal Sessions Judge, Ramban, who set aside the maintenance order on the ground that the parties had been living separately by mutual consent since 1995.

The revisional court held that in such circumstances, the statutory bar contained in Section 488(5) CrPC would apply and the petitioner was not entitled to maintenance.

When the matter came before the High Court, the petitioner argued that there had been no legally valid dissolution of marriage and that the alleged customary divorce had not been proved.

It was contended that in the absence of a decree of divorce from a competent court, the marital relationship continued to subsist and the petitioner was therefore entitled to maintenance.

After examining the record, the bench observed that the revisional court had correctly concluded that the petitioner was living separately from the respondent by mutual consent.

The Court noted that the petitioner had earlier withdrawn proceedings after accepting monetary settlement and had lived separately from the respondent for many years without asserting her claim to maintenance.

These circumstances, the Court held, attracted the bar under Section 488(5) CrPC, which disentitles a wife from claiming maintenance where spouses are living apart by mutual agreement.

At the same time, the Court emphasised that maintenance laws are intended to prevent destitution and that courts must remain sensitive to the economic realities faced by dependent spouses.

It observed that although the revisional court’s finding denying maintenance did not warrant interference, the circumstances of the case required a measure of equitable relief.

The Court noted that during earlier proceedings in 2013 the respondent had agreed to pay Rs. 2.5 lakh as a full and final settlement when the matter was referred to the Lok Adalat.

Although the settlement did not materialise due to subsequent litigation, the respondent had not withdrawn his consent to the proposed payment. In view of this background, the Court considered it appropriate to revive that arrangement to ensure that the petitioner was not left without financial support.

Accordingly, the High Court directed the respondent to pay Rs. 2.5 lakh to the petitioner as a one-time settlement within six months from the date of receipt of the certified copy of the judgment.

The Court further ordered that if the payment was not made within the stipulated time, the petitioner would be entitled to recover the amount along with interest at the rate of six percent per annum until full realisation.

The Court also directed that an amount already deposited in the proceedings be released to the petitioner along with accrued interest, with the remaining balance to be paid by the respondent in accordance with the directions issued by the Court.

With these observations, the High Court dismissed the wife’s petition challenging the revisional court order and held that the connected petition filed by the respondent had become infructuous.

Case Title: Sarita Devi v. Mohan Singh

Bench: Justice Sanjay Parihar

Date of Judgment: 06.03.2026