Spouses cannot be considered as living apart by mutual consent if man breaks promise to maintain wife: Madhya Pradesh High Court

The Madhya Pradesh High Court recently observed that a wife cannot be considered as living apart from her husband by "mutual consent" if the husband breaks a promise to pay her maintenance as laid down in a separation agreement between them..Notably, one of the grounds on which a wife is disqualified from seeking maintenance from her estranged husband is if she is living apart from him by consent. However, Justice Vishal Dhagat observed that such a ground cannot be cited to disentitle a wife to maintenance, if a husband had made a promise to pay maintenance in their separation agreement and later broken that promise. Dealing with one such case, the judge observed:"Petitioner No.1 (wife) agreed to live separately on the basis of promises made in the agreement. Since respondent resiled from promises made in the agreement therefore, it cannot be said that petitioner is living separately by mutual consent.".The Court was dealing with a case where a woman alleged that her husband had coerced her into signing an agreement to separate, after he allegedly engaged in an extramarital relationship. The wife further claimed that her estranged husband had promised to maintain her and their children under the terms of the separation agreement. According to the separation agreement, the husband was allegedly obligated to provide maintenance of ₹2,000 with an annual increment of 10 percent to his wife and children and allocate one acre of agricultural land.However, when the husband did not adhere to these terms and conditions, the wife approached a family court with an plea for maintenance under Section 125 of the Code of Criminal Procedure (CrPC).In May 2022, the family court dismissed this plea for maintenance after taking note of the separation agreement between the spouses. The family court opined that the two spouses were living apart by mutual consent and, hence, the wife was not entitled to claim any maintenance from her husband. This ruling was challenged by the wife before the High Court..The wife's counsel argued that the separation agreement was not a registered document and, therefore, there was no legal separation of the two spouses. The lawyer added that, in any case, no maintenance was paid to the wife, despite such an agreement. The High Court found merit in the wife's case since the husband had broken the terms of the separation agreement. In view of the same, the Court opined that it could no longer be said that the spouses were living apart by "mutual consent."Therefore, the Court ordered the husband to pay the wife a maintenance of ₹5,000 per month and ₹2,500 per month to their children. Accordingly, the Court allowed the revision petition filed by the wife. .[Read Order]