One time settlement and maintenance

One time settlement is only to ease up the pain in your arse.  Paying wife monthly alimony and also hefty money as one time settlement is utterly nonsense.  

Either take time to gather money and pay such money in 2-3 installments which amounts to lumpsum final settlment towards permanent alimony after getting divorce.  Or pay her monthly maintenance.

Such one time settlement money can be arrived at taking into consideration your income, if you ask for intervention of judge, judge will come at a reasonable figure as one time permanent settlement, taking into consideration your income, her income, kids out of marriage etc.

Opinion:   Go for one time settlement than paying wife life long.

If you are the husband, be CAREFUL with one time payment. There are judgments in certain states/jurisdictions that even after one time payment, the wife may qualify for maintenance later as maintenance until she is remarried cannot be waived or settled. Sounds strange but there is at least one High Court judgment to this effect. I mean what happens if she runs out of that one time payment... I repeat that I came across one judgment a long time back and this may be an exception but if it was from your state you better consult some advocate before entering into a settlement.

Helping hand & Samir N : Many thanks for the valuable suggestions.

I am still learning, I have time to decide.

O.P.(FC) No. 3174 of 2012 Kerala Hi Court Judgement dated 5th March 2013 is a recent one similar to the one Samir pointed out. In this case

1)     Wife agrees to forgo her right to claim maintenance on condition of Rs.1,50,000/- to her in full and final settlement of all her claims.

2)     The husband agreed also to pay Rs.12,000/- as monthly maintenance to the child; agreement made and submitted to the family court along with receipt of 1.5 Lacs.

3)     The wife , thereafter, has filed M.C.No.123 of 2012 under Section 125 of Cr.P.C. before the Family Court claiming a monthly maintenance of Rs.75000/-.

4)     FC accepts MC 123 and orders husband to pay an interim maintenance of Rs.15,000/- per month to the wife and husband approaches HC.

5)     HC refused maintenance not because of the agreement or the payment but because of clause 4 of Sec.125.

Hi Court’s Observations and Judgement :-

 “Section 125 of Cr.P.C. is a provision incorporated in the Cr.P.C. by the Parliament enabling certain categories of persons including a wife to claim maintenance. It is a benevolent provision enabling a weaker section of the society to earn their livelihood. An agreement by which a wife waives her right guaranteed under Section 125 of Cr.P.C. will only be an agreement against public policy. An agreement against public policy is void. Therefore, a clause of waiver incorporated in Ext.P4 agreement by which the wife has [O.P.(FC) No.3174/2012] 9 given up her right to claim maintenance from the husband is void and hence, unenforceable.”

One clause in Ext.P4 agreement itself is sufficient for finding that the petitioner and the respondent have decided to live separately by mutual consent with effect from 30.4.2011. Now, the question arises for consideration is whether the respondent is entitled to receive maintenance or interim maintenance from the petitioner after they have been living separately by mutual consent i.e., from 30.4.2011 onwards.

Section 125(4) of Cr.P.C. reads as follows: No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Going by the above sub-section, no wife is entitled to receive [O.P.(FC) No.3174/2012] 12 maintenance from her husband if they are living separately by mutual consent.

The general principle is to word the one-time settlement in a manner that it says that the wife agrees to deposit the monies in some investment of her choice and maintain herself from the interest and blah... bla.. bla...  This way the language in the Act is satisfied. The use of words such as "waiver" of maintenance is fatal to such one-time agreements. Unfortunately, our advocates are not savvy enough to word the one-time settlement properly and then comes a wise advocate on the wife's side who tears apart the settlement agreement burdening the ex-husband all over again.

The Kerala High Court judgment appears to be logically correct but the judgment of Hon'ble Apex Court has got more force of law as is decided inNagendrappa Natikar vs Neelamma on 15 March, 2013 by the bench of Hon'ble  K.S. Radhakrishnan, Dipak Misra in CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 11800 OF 2013 [Arising out of C.C. No. 1297 of 2012]. The crux of the judgment is reproduced below:

"We are in complete agreement with the reasoning of the Family Court and confirmed by the High Court that the suit under Section 18 of the Act is perfectly maintainable, in spite of the compromise reached between the parties under Order XXIII Rule 3 C.P.C. and accepted by the Court in its order dated 3.9.1994.
10. Section 125 Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties,which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.
11. Section 25 of the Contract Act provides that any agreement which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful.Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.
12. The above being the legal position, we find no error in the view taken by the Family Court, which has been affirmed by the High Court. The Petition is, therefore, dismissed in limine."

I feel that instead of one time payment to the wife, keep the money in bank and pay her each month through ECS from the accrued interest so that you do not have to lose the huge money at a time .If she wants revised maintenance she will have to again go to the court and fight a legal battle which will be bothersom for her.