A mutual divorce decree under Section 13-B of the Hindu Marriage Act is necessary to extinguish the right to maintenance under Section 125 of the Criminal Procedure Code.

Kailash Chandra Joshi, J.

Heard learned counsel for the parties.

2. By the instant Cri. misc. petition under Section 482 Criminal Procedure Code the petitioner has challenged the order dated 27.01.2009, passed by the Addl.Sessions Judge (Fast Track), Anoopgarh, H.Q. Suratgarh. in Cri. Revision No. 07/2008, whereby he dismissed the revision petition filed by the petitioner and confirmed the order dated 21.03.2007 passed by the learned Addl. Chief Judicial Magistrate, Suratgarh.

3. The brief, facts of the case are the respondent No. 1 on her behalf and on behalf of her minor children, filed an application under Section 125 Criminal Procedure Code wherein it was averred that she was married to Sarjeet Singh about 10-11 years back and out of the wedlock three children were born to them. It was averred in the application that her in-laws were regularly harassing and demanding dowry and finally she was deserted from her in-laws' house. Two of their children are living with her and the elder son is living with her husband, the petitioner. Further it was averred that she was unable to maintain herself and her two minor children and the petitioner has sufficient means and prayed that Rs. 5,000/- may be paid as maintenance per month. Notice was issued to the petitioner on this application and the petitioner denied all the charges and averred that he has not contracted second marriage and respondent No.1 had executed an agreement wherein she admitted that she received Rs. 2,25,000/- as full time maintenance and by concealing this fact she has filed the application under Section 125 Criminal Procedure Code The learned trial court vide its order dated 21.03.2007 allowed the application and awarded Rs. 4,000/- as maintenance for herself and her children. Against that order, the petitioner filed a revision petition before the revisional court, which was dismissed by the revisional court vide its order dated 27.01.2009. Being aggrieved by the aforesaid order the petitioner has preferred this criminal misc. petition.

4. The learned counsel for the petitioner contended that the learned trial court while allowing the maintenance application of the respondents did not take into consideration the fact that by Ex.D.1 affidavit, both the parties took divorce and in lieu of the maintenance, the present petitioner paid Rs. 2,25,000/- as the maintenance allowance one time and further after the divorce as per the Ex.D.1, respondent No.1 along with two children, respondent No.2 and 3, are not entitled to get any maintenance allowance from the petitioner, but the learned trial court as well as the learned revisional court allowed the maintenance to all the three respondents ordering to pay Rs. 2,000/- monthly as maintenance allowance to respondent No.1 and Rs. 1,000/- monthly each to respondent No.2 and 3. The order of the learned trial court, as affirmed by the learned revisional court, cannot be said to be legal and it is per se illegal, perverse, improper and only abuse of process of law, because when once the relationship of husband and wife ended with the execution of affidavit Ex.D.1, then there is no question of entitlement of maintenance allowance by the wife for herself and for the children.

5. The learned counsel for the petitioner vehemently contended that Ex.D.1 is a document by which both the parties mutually agreed for divorce and, therefore, after the mutual divorce, no question of maintenance can arise between the parties.

6. The learned counsel for the respondents vehemently defended the order of the learned trial court as well as that of the learned revisional court and contended that by the execution of Ex.D.1 affidavit, it cannot he said that it was a mutual decree as prescribed under Section 13-B of the Hindu Marriage Act and it cannot have the effect of the decree of divorce and in the absence of dissolution of valid marriage between the parties, the contentions as raised by the learned counsel for the petitioner cannot have any