- (1.) J. C, Mishra, J. This revision is directed against the order dated 26-3-98 passed by the Judge, Family Court Gorakhpur awarding Rs. 500/- per month to Smt. Sunita Gupta and Rs. 400/- per month to the minor son Sonu from the date of application.
(2.) THE learned Counsel for the revisionist contended that the learned Judge committed illegality in awarding more maintenance than demanded by the opposite parties and, therefore, the order is erroneous. Reliance was placed on copy of the application annexed with the stay application. THE prayer clause discloses that a sum of Rs. 300 per month was prayed as maintenance for the son Sonu. The opposite party seriously dis puted this contention and pleaded that copy of the application filed by the revisionist is incorrect. The opposite party filed copy of the application supported by affidavit. Which indicates that the amount demanded was Rs. 500/- for herself and Rs. 500/- for her son. No rejoinder af fidavit has been filed. There is no reason to disbelieve the specific averment made in the affidavit that Rs. 500/- was demanded as maintenance for her son. The learned Counsel then con tended that the parties were residing separately with consent and, therefore, the wife is not entitled to any main tenance. Reliance has been placed on a decision of the Supreme Court in Gurmit Kaur v. Surjeet Singh alias Jeet Singh, 1996 FLC 195. A perusal of the decision relied on by the learned Counsel would show that the parties had by mutual consent agreed for divorce and had settled their terms. It was held that the consent of living separately by mutual consent arises if the marriage subsists and parties agree to live separately by consent. The validity of divorce was not challenged. The Supreme Court held that the Magistrate committed no illegality in awarding the maintenance to the wife and the order passed by the Additional Sessions Judge which was affirmed by the High Court was held to be erroneous.
(3.) IN the case before us even if the agreement is accepted that by mutual agreement the parties had decided to severe their marital relations even then the wife was entitled to get maintenance in view of decision of the Supreme Court referred to above. The Supreme Court held that any agreement to live separately may be valid during the period when the marriage subsists and not thereafter. IN that case the Supreme Court held that on account of divorce the wife had no option but to live separately and, therefore, till she was re-married she was entitled to receive maintenance. The above decision applies with full force to the facts before us. Moreover the alleged agreement has been seriously disputed and was not held to be genuine document by the learned Judge. He also accepted the case of the applicant that the revisionist has remar ried in view of the admission of the revisionist and, therefore, he could not compel his wife to live with him. The learned Counsel contended that the learned Judge committed error in awarding maintenance from the date of application, which he could not do without recording reasons. This conten tion is without any force in view of the decision of the Division Bench of this Court in Jagat Narain v. Sessions Judge, Mainpuri, From the facts and circumstan ces the awarding of maintenance from the date of application appears to be justified.;