It is well settled, as held by Hon'ble Supreme Court in Vanamala v. H.M. Ranganatha Bhatta,(1995) 5 SCC 299 that a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of Section 125(4) of the Code. If the marriage between the parties is terminated by a decree of consent divorce, that would not amount to live separately by mutual con-sent.
Now the question which remains to be answered is whether the respondent-former wife is debarred or estopped from claiming the said maintenance on the plea that at the time of granting of decree of divorce by mutual consent, she had agreed not to claim the maintenance from the petitioner in future. In my opinion, the aforesaid contention of the petitioner cannot be accepted. The right to claim maintenance by the wife, children and the old parents, who are not capable to maintain themselves, has been provided under Section 125 of the Code as a public policy by the State. The definition of "wife" has also been given extended meaning by the statute in order to provide security in life to a wife whose marriage has been dissolved by a decree of divorce and who being a destitute is unable to maintain herself. This is a matter of public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by mutual agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872, and the same cannot be enforced in a Court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. In a similar situation, the Kerala High Court in Sadasivan Pilial v. Vijayalakshmi, (1987) 2 Hindu LR 334 : (1987 Cri LJ 765), has held that merely the wife in the joint application filed by both the parties under Section 13-B of the Hindu Marriage Act, relinquished her right on each other person or property, is not a bar for claiming maintenance under Section 125 of the Code.
Now the question which remains to be answered is whether the respondent-former wife is debarred or estopped from claiming the said maintenance on the plea that at the time of granting of decree of divorce by mutual consent, she had agreed not to claim the maintenance from the petitioner in future. In my opinion, the aforesaid contention of the petitioner cannot be accepted. The right to claim maintenance by the wife, children and the old parents, who are not capable to maintain themselves, has been provided under Section 125 of the Code as a public policy by the State. The definition of "wife" has also been given extended meaning by the statute in order to provide security in life to a wife whose marriage has been dissolved by a decree of divorce and who being a destitute is unable to maintain herself. This is a matter of public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by mutual agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872, and the same cannot be enforced in a Court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. In a similar situation, the Kerala High Court in Sadasivan Pilial v. Vijayalakshmi, (1987) 2 Hindu LR 334 : (1987 Cri LJ 765), has held that merely the wife in the joint application filed by both the parties under Section 13-B of the Hindu Marriage Act, relinquished her right on each other person or property, is not a bar for claiming maintenance under Section 125 of the Code.
Punjab-Haryana High Court
Sushil Kumar vs Neelam on 18 March, 2004
Equivalent citations: 2004 CriLJ 3690, I (2005) DMC 619
1. The petitioner, who is former husband of the respondent, has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') challenging the order dated 8-2-2000 passed by the Judicial Magistrate 1st Class, Chandigarh (Annexure P-1) granting an amount of Rs. 200/- per month as interim maintenance, on an application filed by his divorcee wife; and the order dated 30-8-2001 (Annexure P-2) passed by the learned Additional Sessions Judge, Chandigarh, confirming the aforesaid order.
2. The sole question involved in this petition is, whether a former wife is entitled for maintenance under Section 125 of the Code when the marriage between the parties was dissolved by decree of consent divorce, and at that time it was agreed between the parties that the respondent wife will not claim maintenance in future.
3. In this case, the marriage between the parties was solemnised on 11 -10-1993. Two issues were born out of the said wedlock. Subsequently, relations between the parties became strained and ultimately on their joint application under Section 13-B of the Hindu Marriage Act, a decree of divorce by mutual consent was passed by the learned District Judge on 23-11-1995. In their joint petition for divorce, there was an averment that the respondent-wife would not claim any maintenance from the petitioner-husband at any time or in future under any provisions of law. In her statement before the Court, the respondent wife also stated that she would not claim any maintenance from the petitioner in future. Admittedly, after the mutual divorce, the respondent-wife has not remarried. She is living alone. However, the husband has contracted the second marriage.
4. After the divorce, the respondent wife was not able to maintain herself. In spite of her request, the petitioner had refused to maintain her. Hence, on 2-6-1999, the respondent wife field an application under Section 125 of the Code for maintenance alleging therein that she was the former wife of the petitioner, she did not contract any re-marriage. She was unable to maintain herself, and the petitioner had refused to maintain her.
5. The petitioner contested the aforesaid application on two grounds. Firstly that since the marriage between the parties was dissolved by mutual consent, therefore, in view of Sub-section (4) of Section 125 of the Code, the respondent former wife is not entitled for maintenance as both the spouses were living separately by mutual consent. Moreover, the petitioner is looking after the two children born out of the wedlock between the parties. Secondly that in view of the earlier compromise effected between the parties and the statement made by the wife in the Court that she will not claim maintenance in future from the petitioner, she is estopped from claiming the maintenance.
6. The learned trial Court repelled both the contentions of the petitioner and held that the respondent-former wife was entitled for maintenance and accordingly an amount of Rs. 200/- per month was granted as an interim maintenance vide order dated 8-2-2000. On revision filed by the petitioner, the said order of the learned Judicial Magistrate 1st Class was affirmed by the learned Additional Sessions Judge vide order dated 30-8-2001, Still feeling aggrieved against the award of meagre amount of Rs. 200/- to the respondent former wife, the petitioner has filed the instant petition under Section 482 of the Code.
7. After hearing the learned counsel for the parties and perusing the record of the case, I do not find any merit in this petition. As far as the facts are concerned, there is no dispute. The marriage between the parties was dissolved by a decree of divorce by mutual consent under Section 13-B of the Act. It was also agreed between the parties that the respondent former wife will not claim any maintenance from the petitioner in future but it is also a fact that the respondent former wife did not contract remarriage. Both the Courts have also come to the conclusion that she was unable to maintain herself. In such situation, whether the respondent-former wife can claim maintenance from her husband. Explanation (b) to Sub-section (1) of Section 125 of the Code clearly provides that the expression wife includes a woman who has been divorced or has obtained a divorce from her husband and has to remarried.
8. It is well settled, as held by Hon'ble Supreme Court in Vanamala v. H.M. Ranganatha Bhatta,(1995) 5 SCC 299 that a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of Section 125(4) of the Code. If the marriage between the parties is terminated by a decree of consent divorce, that would not amount to live separately by mutual con-sent. Similarly, in Rohtash Singh v. Ramendri (Smt.) (2000) 3 SCC 180 : (2000 Cri LJ 1498), the Hon'ble Apex Court has held that on account of explanation (b) to Sub-section (1) of Section 125 of the Code, a woman, who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. The claim of maintenance under Section 125 of the Code by a divorced wife is based on the foundation provided under Explanation (b) to Sub-section (1) of Section 125 of the Code. If the divorced wife is unable to maintain herself, and if she has not re-married, she will be entitled to claim maintenance allowance. A woman after divorce became a destitute. If she is not able to maintain herself and remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her. So as far as the first part of the question raised by the learned counsel for the petitioner is concerned, the same is squarely covered by the aforesaid decisions of the Hon'ble Apex Court.
9. Now the question which remains to be answered is whether the respondent-former wife is debarred or estopped from claiming the said maintenance on the plea that at the time of granting of decree of divorce by mutual consent, she had agreed not to claim the maintenance from the petitioner in future. In my opinion, the aforesaid contention of the petitioner cannot be accepted. The right to claim maintenance by the wife, children and the old parents, who are not capable to maintain themselves, has been provided under Section 125 of the Code as a public policy by the State. The definition of "wife" has also been given extended meaning by the statute in order to provide security in life to a wife whose marriage has been dissolved by a decree of divorce and who being a destitute is unable to maintain herself. This is a matter of public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by mutual agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872, and the same cannot be enforced in a Court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. In a similar situation, the Kerala High Court in Sadasivan Pilial v. Vijayalakshmi, (1987) 2 Hindu LR 334 : (1987 Cri LJ 765), has held that merely the wife in the joint application filed by both the parties under Section 13-B of the Hindu Marriage Act, relinquished her right on each other person or property, is not a bar for claiming maintenance under Section 125 of the Code.
10. In the instant case, the respondent former wife, who is living in destitute and has not re-married, and is not capable to maintain herself, cannot be denied the bare minimum of the life to survive in the "survival of the fittest society". A former husband, though he has divorced his wife, cannot be discharged from his statutory duty and obligation to provide the minimum amount of maintenance to his former wife. In my opinion, the amount of Rs. 200/- per month is a meagre amount. With this small amount, no one can survive in this world. Therefore, it will be open for the respondent to move to the Judicial Magistrate for enhancement of the amount of interim maintenance.
11. In view of the aforesaid, there is no merit in this petition and the same is hereby dismissed.
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