Private Agreement Cannot Dissolve Marriage But Can Establish Mutual Separation To Bar Maintenance Claim: J&K And Ladakh High Court
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Sanjay Parihar, held that while a private agreement between spouses cannot dissolve a statutory marriage in the absence of a court decree or proved custom, such an agreement remains relevant to determine whether the parties were residing separately by mutual consent — a circumstance that disentitles a wife from claiming maintenance. The Court directed the husband to pay a one-time settlement of ₹2.50 lakhs to the wife, who had been living separately since 1995 following a compromise deed.
The dispute arose from two connected petitions concerning maintenance proceedings between a wife and husband who were married in 1990 and had one son from the marriage. The wife alleged that the husband had contracted a second marriage and initiated criminal proceedings under Sections 494 and 109 RPC along with a petition seeking maintenance under Section 488 Cr.P.C. before the competent court. Subsequently, the parties entered into a compromise on 28.08.1995, under which the wife withdrew the complaint and maintenance petition after receiving ₹10,000 as full and final settlement. It was also alleged that a customary divorce document was executed and the parties began living separately.
Later, the wife sought maintenance only for the minor child in 2003, which was settled before a Lok Adalat with the husband agreeing to pay monthly maintenance that was subsequently enhanced in later proceedings. In 2008, the wife filed another petition under Section 488 Cr.P.C. without disclosing earlier proceedings. The Chief Judicial Magistrate initially dismissed the petition, holding that the subsistence of marriage had not been established and that the husband had produced material suggesting dissolution of marriage by mutual arrangement. The matter was remanded in revision for reconsideration. After rehearing, the Magistrate granted maintenance of ₹2,000 per month with annual enhancement, but the Revisional Court later set aside this order holding that the spouses were living separately by mutual consent, thereby disentitling the wife from claiming maintenance.
The Court examined the issue relating to proof of customary divorce and the entitlement of the wife to maintenance in circumstances where the spouses had been living separately for a prolonged period. The Court recorded that “there is not any dispute on the settled law that custom must be specifically pleaded and strictly proved.” It further stated that “in absence of proof of such custom or decree of divorce from competent Court, the marital tie cannot be said to have been lawfully severed.”
However, the Court considered the effect of consensual separation between the parties. It observed that “Section 488(5) Cr.P.C. independently disentitles a wife from maintenance if she is living separately by mutual consent.” Referring to the record, the Court noted that “the petitioner withdrew earlier proceedings upon compromise dated 28.08.1995; admitted separation in subsequent proceedings; sought maintenance for the child describing herself as divorced; and remained separate for over a decade.”
The Court also examined the evidentiary value of admissions made in earlier proceedings. It recorded that “an admission constitutes substantive evidence against its maker unless satisfactorily explained,” and further stated that “the petitioner had earlier withdrawn proceedings, accepted monetary settlement, described herself as divorced, and remained separate for a considerable period.” These circumstances, according to the Court, constituted “clear admissions of consensual separation.”
While analysing the scope of revisional jurisdiction in maintenance proceedings, the Court noted that “such a proceedings are summary and preventive in nature, intended to provide a swift remedy against destitution.” It further stated that the Magistrate’s inquiry is limited to determining “whether the parties were married, whether they lived together as husband and wife, and whether the husband neglected or refused to maintain the wife.”
The Court also considered the legal consequences of agreements between spouses to live separately. It recorded that “even if such an agreement does not amount to a valid dissolution of marriage, it can be relied upon to ascertain the intention of parties and the nature of separation.” Further, the Court observed that “where separation is by mutual consent, the statutory bar under sub-section (5) applies.”
Examining the conduct of the parties, the Court noted that “the petitioner cannot be permitted to approbate and reprobate by asserting divorce in earlier proceedings and later claiming desertion.” It also stated that “her consistent admissions in judicial proceedings that she was divorced and living separately disentitle her from now asserting that she was deserted without cause.”
The Court further recorded that although the marriage might not have been legally dissolved, “the petitioner’s long-standing conduct, admissions and acquiescence demonstrate that she was residing separately by mutual consent and not on account of proved neglect.”
The Court directed that “the respondent to pay a sum of ₹2.50 lakhs to the petitioner as a one-time settlement. The said amount shall be paid by the respondent within a period of six months from the date of receipt of a certified copy of this order. In the event of failure to comply within the stipulated period, the petitioner shall be entitled to recover the said amount along with interest at the rate of 6% per annum until its realization in full.”
“An amount of ₹1,40,091/- is presently lying in the form of an FDR. The said amount, along with the interest accrued thereon, shall stand released in favour of the petitioner. The remaining balance, if any, shall be paid by the respondent in the manner and within the time frame indicated hereinabove.”
“CRM(M) No. 444/2020 stands dismissed. Consequently, CRM(M) No. 279/2021 also stands dismissed, having been rendered infructuous upon the dismissal of the former petition.”
Advocates Representing the Parties
For the Petitioners: Mr. Jasbir Singh Jasrotia, Advocate
For the Respondents: Mr. Vishal Kapur, Advocate
Case Title: Sarita Devi v. Mohan Singh
Neutral Citation: 2026:JKLHC-JMU:734
Case Number: CRM(M) No. 444/2020 c/w CRM(M) No. 279/2021
Bench: Justice Sanjay Parihar
