T. Kochu Thommen, J.
1. In this petition under Section 482 of the Cr. P.C., 1973 (the 'new Code') the petitioner challenges the order of the learned Sessions Judge affirming in revision the order passed by the trial court under Section 125 of the new Code whereby maintenance was ordered to be paid by the petitioner (whom I shall call 'the husband') to the respondent (whom I shall call 'the wife').
2. In earlier proceedings under Section 488 of the Cr. P.C., 1898l ,(the 'old Code') maintenance to the children had been ordered by the court in terms of Ext. D2 divorce deed whereby the marriage between the parties was dissolved and maintenance for their children was stipulated. Ext. D2 had also stated that, in view of the agreement between the parties, the wife had no further claim against the husband. Under Section 488 of the old Code the wife had no right to be maintained once she was divorced,
3. Section 125 of the new Code provides for maintenance to the wife by the husband, and stipulates that the expression 'wife' includes a woman who has been divorced, but has not re-married. Sub-section (4) of Section 125 however provides:
(4) No wife shall be entitled to receive an allowance 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.
4. Counsel for the revision petitioner, Shri Nandakumara Menon, points out that a divorced wife is a person living separately by mutual consent and is therefore not entitled to receive any maintenance from her former husband. Counsel submits that in the light of Exts. D2 and D4, the wife is deemed to have waived her right to maintenance, It is further submitted that in view of Section 484(2)(b) of the new Code, an order passed under Section 488 of the old Code is a ban on any further application by the wife for maintenance under Section 125 of the new Code.
5. A divorced spouse cannot be characterised as a wife living separately by mutual consent. She is a person who lives separately from her former husband by virtue of a change in status consequent upon the dissolution of the marriage.
6. Ext. D4 compromise petition dated 15-6-19176 incorporates the provisions of Ext. D2 divorce deed, and it contains a statement by the wife that, in view of the divorce and the agreement to maintain the children by the husband, she had no further subsisting rights. It has to be noticed that there was a no legal right at the relevant time for a wife to claim maintenance after the dissolution of the marriage. But the legislature in its wisdom conferred that right upon a 'wife' (which expression includes under the new Code a divorced wife) to claim maintenance from her former husband, notwithstanding the dissolution of the marriage. This is a right which did not exist at the time of Ext. D2 or Ext. D4. Therefore there was no question of any waiver of any right which was vested in the wife at that time. The question of waiver can arise only when a person consciously abandons or waives a right to which he or she was in law entitled. In the circumstances it cannot be validly contended that the wife had waived any right.
7. Under Section 125 of the new Code, a divorced wife is entitled to claim maintenance. This is in fact what the wife did by her petition from which the present proceedings arose. Counsel however submits that an order made under Section 488 of the old Code is an order which is saved under Sub-section (2) (b) of Section 484 of the new Code. The relevant provision of that sub-section says that orders made under the old Code and which were in force immediately before the commencement of the new Code shall be deemed to have been made under the corresponding provisions of the new Code. According to counsel, the effect of this saving provision is that an order made under Section 488 of the old Code prohibits another order by way of maintenance being made under the new Code. I do not see any substance in that contention. Section 484(2)(b) only says that an order which is made under the old Code is saved under the new Code and therefore any order of maintenance made under the old Code is not affected merely because the old Code is no longer in existence and the new Code has come into force. Therefore the agreement for maintenance in terms of Exts. D2 and D4 remains unaffected. The children continue to be the beneficiaries of those agreements, But the wife is entitled to enforce her right for maintenance which is now conferred upon her under the new Code, notwithstanding her divorce. This is what she has done, and in my view for good reasons. It is the concurrent finding of the courts below that the wife in the circumstances of this case is entitled to be maintained by her husband. The criminal miscellaneous petitioner seeking interference by this Court under Section 482 of the new Code with the orders of the courts below has in the circumstances of this case, no merits. It is therefore dismissed and the petitioner will pay the respondent her costs here and in the courts below.