Even if wife waives off her right to maintenance in agreement with husband, her statutory right to maintenance under S.125 of CrPC can’t be bartered

Ramchandra Laxman Kamble Vs Shobha Ramchandra Kamble And Anr

Bombay HC

21/12/2018

WRIT PETITION NO.3439 OF 2016

About/from the judgment:

The High Court held in a petition by relying on several decisions that, “an agreement, in which wife gives up or relinquish her right to claim maintenance at any time in the future,is opposed to public policy and therefore, such an agreement, even if voluntarily entered, is not enforceable.”

 

The facts in the present case are as follows, Learned Counsel Sandeep Koregave placed his submissions for the petitioner that, during the Lok Adalat proceedings, petitioner and respondent 1 filed a consent pursis, in which they not only agreed to dissolve their marriage but also agreed not to claim any maintenance from each other. Further, he stated that respondent-wife had made false allegations that her consent was obtained by fraud. The main contention placed by the learned counsel for the petitioner was that, in terms of agreement recorded in the consent decree, respondent having waived her right to receive maintenance, cannot now maintain an application under Section 125 CrPC.

 

Counsel for the respondent-wife Mr Nagesh Chavan stated that there can be no agreement in derogation of the provisions of Section 125 CrPC since such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.

 

The High Court, relied on various decisions, such as Shahnaz Bano v. Babbu Khan ; 1985 SCC OnLine Bom 200, wherein it was observed: “even in a case covered by Clause (c) of Section 127 (3) of CrPC, where the wife has surrendered her rights voluntarily, in a given case, if after waiving her rights to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under Section 125 of CrPC.”

 

and Ranjit Kaur v. Pavittar Singh; 1991 SCC OnLine P&H 693 for the proposition that: “The statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision”

 

After so referring, the Court stated that there is no reason to interfere with the views taken by the two courts in the present matter. Therefore, application of respondent 1 under Section 125 CrPC is held as maintainable and there is no doubt that the Magistrate will dispose of the application under Section 125 CrPC, in accordance with law and on its own merits. Further, learned Judicial Magistrate in the present case is directed to dispose of application of respondent 1.

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