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: Bombay HC [Read Judgment]

In a significant judgment, the Bombay High Court has held that even when a wife enters into an agreement with her husband waiving off her right to maintenance, her statutory right to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

Justice MS Sonak was hearing a writ petition filed by one Ramchand Kamble. In the petition, Kamble challenged two orders, one by the Judicial Magistrate, First Class and Additional Sessions Judge dated October 13, 2011 and January 31, 2013, respectively. Both rejected the petitioner's contention that respondent wife's application seeking maintenance under Section 125 of CrPC must be dismissed since she had specifically waived her right to claim for any maintenance.

Kamble’s advocate Sandeep Koregave submitted that the respondent wife had made false allegations that her consent in waiving off her right to maintenance was obtained by fraud. She then filed an appeal before the District Court to set aside the consent decree made by Civil Judge, Senior Division at Sangli. This appeal was dismissed as not maintainable in view of the provisions in Section 96(3) of the Civil Procedure Code. Against such dismissal, the respondent filed a writ petition which was also dismissed by the high court in an order dated October 15, 2012.  However, the court granted liberty to the respondent to take out proceedings before the Civil Judge, Senior Division at Sangli, to seek recall of the consent decree. Thus, Koregave argued that such application seeking maintenance under S.125 of CrPC needs to be dismissed or stayed until Civil Judge, Senior Division at Sangli, decides whether the consent decree is liable to be recalled or set aside.

Nagesh Chavan appeared on behalf of the respondent-wife and argued that irrespective of the pending application before the Civil Judge and the so-called consent decree that was obtained fraudulently, any agreement for waiver to receive maintenance is void since it is opposed to public policy.  He submitted that there can be no agreement in derogation of the provisions of Section 125 of CrPC, since such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.

Chavan relied upon several decisions to point out that even assuming that right to claim maintenance was voluntarily given up by the wife, that by itself does not bar the wife from seeking maintenance, provided the circumstances prescribed in Section 125 of CrPC stands fulfilled.

The court examined three decisions of the Bombay High Court in similar cases:

(1)    In Shahnaz Bano d/o Aslam Khan (Smt.) vs. Babbu Khan s/o Nanhekhan Pathan & Another, wherein a single judge of Bombay High Court held, that he was firmly of the view that 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.

(2)    In Rameshwar s/o Sandu Kachkure vs. State of Maharashtra & Anr, another Single Judge Court has taken a view that an agreement, by which the wife relinquishes her right to receive maintenance any time in future, is contrary to public policy and consequently unenforceable.

(3)    In Tejaswini d/o Anandrao Tayade And Anr. vs. Chandrakant Kisanrao Shirsat And Anr, another Single Judge refused to reject an application under Section 125 CrPC on the ground that wife in the customary divorce deed and consent deed executed by her relinquished her claim for past and future maintenance.

To the same effect are the observations of a learned Single Judge of Allahabad High Court in Mahesh Chandra Dwivedi vs. State of UP & Anr. In Rajesh R. Nair vs. Meera Babu, a division Bench of Kerala High Court has held that an agreement, by which the wife waived her right to claim maintenance, would be a void agreement as against public policy, the court noted.

It then referred to a judgment of the Punjab and Haryana High Court in Ranjit Kaur vs. Pavittar Singh, wherein it was held that maintenance is a statutory right, which the legislature has framed irrespective of nationality cast or creed of the parties. Justice Sonak observed:

“The statutory liability under Section 125 is, therefore, distinct from the liability under any other law. Therefore, the statutory right of a wife of a 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.   Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of CrPC would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and void but legal agreement.”

Thus, the court held that respondent wife’s application for maintenance under S.125 of the CrPC was maintainable and Ramchand Kamble’s petition was dismissed.