Wife can proceed simultaneously under both the provisions of Sec.125 of CrPC and Sec.12 of The Protection Of Women From Domestic Violence Act

As far as other contention raised by learned Counsel for the petitioner that the orders/judgment passed by learned Courts below is not sustainable in view of the fact that the petitioner was also receiving Rs.3,500/­ per month under Section 125 of the Criminal Procedure Code Cr.P.C., is concerned,

the said plea of learned Counsel for the petitioner is also liable to be rejected. The provisions of Section 125 of the Criminal Procedure Code and Section 12 of the Protection of Women from Domestic Violence Act, 2005 are distinct and different. Law does not prohibits the wife to proceed under both of the said statutory provisions simultaneously or Otherwise.[Para No.11]

Agreement by wife for relinquishment of her right to claim maintenance is not enforceable even if voluntarily entered by her

Divorce by mutual consent - Wife agreed not to claim any maintenance including Streedhan, husband assured to continued marrital relationship and maintain her- Husband and wife continued their marrital relationship inspite of paper decree of divorce - After some years husband discontinued this relationship and not made any arrangement for maintenance of wife who has been divorced by him - Wife claimed maintenance u/s.125 of CrPC - Husband's defence that she had given up her claim for maintenance, when the decree for divorce by mutual consent was passed; and she has income source as she is running a beauty parlour.

Held:

   A woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.[Para No.20]

Qualification of wife and capacity to earn cannot be a ground to deny maintenance to wife who is dependent and does not have any source of income

Factors be considered in fixing the quantum of maintainable.

   It is also well settled principal of law that while granting the maintenance, following factors should be taken into consideration :

• (I) Income, property and capability of earning of both the parties.

• (ii) Living standard and need of the parties keeping in mind the principle that wife is entitled to get an amount of maintenance which will enable her to maintain almost the same standard of living to which she was entitled if she would have lived in the house of her husband. 

• (iii) Qualification of the wife and capacity to earn cannot be a ground to deny maintenance to a wife who is dependent and does not have any source of income. Whether Appellant is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant is capable of earning is not sufficient reason to reduce the maintenance awarded by the Family Court.[Para No.12]