A divorced wife may still claim maintenance under Section 127 of Cr.P.C. despite previously surrendering her rights, provided there is a change in circumstances.

1Petitioner and R - 1 were husband and wife. Their marriage was solemnized on 30-7-1980. A joint petition for consent divorce was filed by the petitioner and R - 1 in M.C. 222/88 on the file of the Family Court at Bangalore and the marriage was dissolved on 31-10-1988. On the date of the presentation of the joint petition, petitioner and R - 1 had two children viz., R - 2 son who was born on 28-5-1984 and a daughter by name Anitha who had born on 28-9-1981. In the divorce proceedings, R - 1 declined to claim any maintenance from the petitioner as she was gainfully employed. In the year 2002, respondents herein filed a petition under S.127 of Cr. P.C. claiming maintenance from the petitioner herein. In the proceedings, an application for interim maintenance was also filed claiming monthly maintenance of Rs. 4000/- per month for R - 1 and Rs. 1500/- per month to R - 2 son. On the application filed by the respondent, trial Court has awarded a sum of Rupees 2500/- to R - 1 herein. This order is called in question in this writ petition.

2. Heard the learned counsel for the parties.

3. Learned counsel appearing for the petitioner contends that respondent who had declined to claim maintenance from the petitioner herein in a consent divorce petition, at a later stage cannot file an application under S.127 of Cr. P.C. since she had voluntarily surrendered her rights to maintenance after her divorce. Therefore, relying upon S.127(3)(c) of Cr. P.C. he requests this Court to set aside the order passed by the trial Court. In support of his arguments, he has relied upon a judgment of Bombay High Court in Shrawan Sakharam Ubhale v. Sau. Durga Shrawan Ubhale , 1989 CriLJ 211. Relying upon this decision, he contends that a divorced wife who has voluntarily surrendered to claim maintenance cannot be permitted to file a petition under S.127 of Cr. P.C. claiming maintenance. Per contra, Smt. Jayna Kothari, learned counsel appearing for R - 1 relying upon the judgment of the Calcutta High Court in Joydel Kumar Biswas v. Maduri Biswas , 1994 CriLJ 3342, contends that even though R - 1 voluntarily surrendered to claim maintenance while obtaining divorce from the petitioner, still she can maintain a petition under S.127 of Cr. P.C. According to her Cl. (c) of sub-section (3) of S.127 of Cr. P.C. has no application for the present case. Therefore, she requests this Court to dismiss this petition.

4. Having heard the learned counsel for the parties, the only question to be considered by this Court is whether R - 1 can maintain a petition under S.127 of Cr. P.C. even though she had voluntarily surrendered to claim maintenance from the petitioner. Whether Cl. (c) of sub-section (3) of S.127 of Cr. P.C. can be a bar for R - 1 to maintain a petition under S.127 of Cr. P.C.

5. The relationship between the parties are not in dispute. The facts of this case are also not in dispute. It is true that R - 1 who was gainfully employed on the date of obtaining a consent divorce had voluntarily surrendered her rights to claim maintenance from the petitioner - husband and later on she has filed a petition under S.127, Cr. P.C. claiming maintenance from the divorced husband alleging that she is unable to maintain herself. In the said proceedings, petitioner - husband has taken up a contention that R - 1 is not entitled to claim maintenance under S.127 in view of Cl. (c) of sub-section (3) of S.127 of Cr. P.C. In order to appreciate the case of the parties, it is better to understand Cl. (c) of sub-section (3) of S.127 of Cr. P.C. which reads as hereunder :

"127. Alteration in allowance. -

[(1) On proof of a change in the circumstances of any person, receiving, under S.125 a monthly allowance for the maint