Remedy open to wife in case of breach of agreements.

In this revision filed by the wife, the twin questions that arise are :

(i) Whether the wife is entitled to invoke Section 125, Cr.P.C. for grant of maintenance in a case where the husband fails to pay the monthly agreed amount under an agreement entered into between the parties for their living separately consequent upon certain differences that arose between them; and

(ii) If the agreement entered into between the spouses for their living separately is committed breach of by non-payment of agreed monthly amount to the wife, whether the remedy open is only by way of a suit for specific performance of the agreement.

2. The facts of the case in brief are :

The respondent is the husband of the petitioner herein. Their marriage as per Hindu rites took place on 4-5-1961. After the marriage they lived amicably for some time. Two female children were born to them. Thereafter, differences arose. Both of them agreed to live separately. An agreement (Ex.P. 3) dated 12-10-1971 was entered into between them. Under the agreement, the husband agreed to pay the wife Rs. 50/- per month. The husband paid as that rate up-till 1985 and thereafter did not pay. Therefore, the wife filed M.C. No. 14/87 under Section 125, Cr.P.C. on the file of the Second Additional Munsiff-Magistrate, Tenali, claiming maintenance of Rs. 400/-per month. The husband filed a counter contending that he was paying the maintenance as per the agreement entered into between them and that if there is breach of the agreement the remedy open to the wife is to approach the civil Court by filing a suit and it is not open to her to resort to the proceedings under Section 125, Cr.P.C. It was also contended by the husband in the counter that both of them were living separately with consent and that the wife was unchaste. The wife was working as a coolie and the earnings derived therefrom were sufficient for her, that the daughters were married and that there are no grounds in the petition filed by her for grant of maintenance and it is liable to be dismissed.

3. On behalf of the wife, besides herself examined as P.W. 1, another witness was examined and Exs.P. 1 to P. 6 marked. The respondent examined himself as R.W. 1 and another as R.W. 2. Ex. D1 was marked. The trial Court, having considered the rival contentions of the parties, found that the agreement was entered into between the parties with consent and the agreement is genuine. It also found that the allegation of unchastity of the wife is not proved and the said allegation amounts to legal cruelty. The husband has not proved that he was paying Rs. 50/- per month from 1985 onwards. It also found that the husband neglected the wife and that he was getting a salary of Rs. 2,025/- per month. Accordingly it awarded Rs. 300/- per month.

4. Against that order, the husband preferred a revision. The revisional Court, relying upon a judgment of this Court rendered in Kamatham Venkatamma v. Kamatham Buruju Ramanna, 1989 (2) AP Law Journal 186 : (1989 Cri LJ 2416) held that the proceedings under Section 125, Cr.P.C. cannot be maintained even if there is a breach of the agreement executed between the parties. Accordingly, it set aside the order of the trial Court and allowed the revision. Hence the present revision by the wife.

5. The learned counsel for the petitioner-wife contended that the wife was neglected by her husband as no maintenance, though agreed to, was paid to her and therefore, the proceedings under Section 125, Cr.P.C. are maintainable. The learned counsel for the respondent on the other hand contended that once there is an agreement the wife is not entitled to file a petition under Section 125, Cr.P.C. and that the only remedy available to the wife is to seek specific performance of the agreement.

6. The case of the petitioner is that after the marriage they lived happily for some time, that two daughters were born to them, that thereafter as they were not getting on well, the agreement (Ex.P. 3) was exec