well settled by few decisions of different Courts
viz.
[1] Rajesh R Nair v. Meera Babu reported in
2013 Cri. L.J. 3153, wherein Division Bench of
Kerala High Court has held that waiver of right
to maintenance by an agreement is not permissible
because such agreement would be void agreement as
against public policy. It would amount to ousting
of jurisdiction of Magistrate and Family Court to
entertain maintenance claim which cannot be
permitted by law. Therefore, such agreement being
void would be unenforceable and hence claim for
maintenance cannot be rejected on the basis of
such agreement of waiver of right to maintenance.
Paragraphs 8 and 9 of such judgment read as
under:-
“8 The respondent has filed Exh.P1 claim
for maintenance under Section 125 of Cr. P.C.
Section 125 of Cr. P.C provides that if any
person having sufficient means neglects or
refuses to maintain his wife, unable to
maintain herself, a Magistrate of the first
class may, upon proof of such neglect or
refusal, order such person to make a monthly
allowance for the maintenance of his wife at
such monthly rate, as such Magistrate thinks
fit, and to pay the same to such person as
the Magistrate may from time to time direct.
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. Under this Section, a wife who
is unable to maintain herself can claim a
monthly allowance for her maintenance from
her husband having sufficient means when he
neglects or refuses to maintain her. Thus,
the right to claim maintenance provided to
the wife is a statutory right created by the
Parliament. This is for achieving the goal of
protecting a wife who is unable to maintain
herself to claim maintenance from her husband
having sufficient means when he neglects or
refuses to maintain her. The public policy of
protecting such women is reflected in Section
125 of Cr. P.C. In other words, 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 given up her right to claim
maintenance from the husband is void and
hence, unenforceable.
9 A Magistrate of the First Class is
conferred with jurisdiction to deal with a
claim for maintenance under Section 125 of
Cr. P.C. Now, a Family Court can also
exercise the jurisdiction exercisable by a
Magistrate of the First Class under Section
125 of Cr. P.C. as provided under clause (a)
of sub-section (2) of Section 7 of the Family
Courts Act. Thus, a Magistrate or a Family
Court has jurisdiction to deal with the claim
of a wife for maintenance. This jurisdiction
is conferred on such courts by the
Parliament. By the act of parties, the courts
cannot be deprived of such jurisdiction. In
other words, the parties cannot agree to oust
the jurisdiction of a Magistrate or a Family
Court to entertain a claim for maintenance
preferred by a wife against her husband. For
this reason as well, the clause of waiver
incorporated in Ext.P4 agreement by which the
respondent has given up her right to claim
maintenance from the petitioner cannot hold
good in the eye of law. Therefore, the
contention raised by the learned counsel for
the petitioner that in view of the waiver of
the right to claim maintenance by the
respondent, Ext.P1 claim preferred by her is
not maintainable is liable to be rejected and
hence, we do so.”
[2] In Rishikesh Singh alias T.R. Singh v.
Kiran Gautam reported in 2015 Cri.L.J. 126,
Chhattisgarh High Court has confirmed that decree
of divorce obtained by mutual consent would be no
ground to deny maintenance until wife has not
remarried after divorce. It is further held that
even if wife is junior advocate, it cannot be
held that she is able to maintain herself and,
therefore, she would be entitled for the
maintenance.
[3] Smt. Vanamala v. H.M. Ranganatha Bhatta
reported in [1995] 5 SCC 299, wherein the Hon’ble
Supreme Court has also taken the same view that
wife, who obtains divorce by mutual consent
cannot be denied maintenance by virtue of section
125[4] and thereby restored the order of the
Sessions Court, which has concluded that wife was
entitled to maintenance notwithstanding divorce
by mutual consent and remanded the matter to the
trial Court for determining quantum of
maintenance. Thereby, the Hon’ble Supreme Court
has set aside the order of the High Court which
held that wife is not entitled to maintenance
once she has divorced her marriage by mutual
consent. It would be appropriate to recollect
here that for coming to such conclusion, the
Hon’ble Supreme Court has relied upon as many as
three other decisions of different High Courts,
which are quoted in such reported case and
approved by the Hon’ble Supreme Court.
Therefore, as on date, there are at least as many
as five judgments including judgment of the
Hon’ble Supreme Court, which confirm that a wife
who obtains divorce by mutual consent cannot be
denied maintenance by virtue of section 125 [4]
of the Cr. P.C.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1095 of 2011
MR.JUSTICE S.G.SHAH
VARSHABEN HIMANTLAL VEJANI.
V
STATE OF GUJARAT &
CORAM: MR.JUSTICE S.G.SHAH
Date : 15/07/2016
Citation: 2017 CRLJ869 Guj HC
2 Both these petitions are arising out of
the same impugned judgment and order dated
31/3/2011 rendered in consolidated judgment in
Criminal Revision Application No. 23 of 2010 and
Criminal Revision Application No. 34 of 2010 by
the Sessions Judge, Bhavnagar and, therefore,
they are heard together and being decided by this
common judgment.
3 Before the Sessions Court, Criminal
Revision Application No. 23 of 2010 was preferred
by Varshaben Himatlal Vejani; whereas Criminal
Revision Application No. 34 of 2010 was preferred
by her husband Rameshkumar Manubhai Sanghavi,
wherein both of them have challenged the judgment
and order dated 4/3/2010 rendered in Misc.
Criminal Application No. 496/2008 by the Judicial
Magistrate First Class, Bhavnagar, which was
preferred by wife Varshaben with her two minor
daughters under section 125 of the Code of
Criminal Procedure [for short ‘Cr. P.C.’] for
maintenance of all of them from her husband and
father of minor daughters, namely Rameshbhai
Sanghavi. By such order dated 4/3/2010, the
Magistrate has directed to increase the amount of
maintenance of minor daughters only from Rs.500/-
pm to Rs.2,500/- pm so far as minor daughter
Sonal is concerned and from Rs.500/- pm to
Rs.2,000/- pm so far as minor daughter Anjali is
concerned. Whereas the Magistrate has rejected
the application for enhancement of maintenance so
far as wife Varshaben is concerned. Therefore,
wife has preferred revision before the Sessions
Court for her maintenance and husband has
preferred revision before the Sessions Court to
quash and set aside such order of enhancement of
maintenance. However, the Sessions Court has
dismissed both the revision applications and,
therefore, order of Magistrate dated 4/3/2010 is
confirmed. In view of such situation, before this
Court, again husband has challenged both the
orders, as aforesaid, regarding enhancement of
maintenance in favour of the daughters; whereas
wife has challenged both the orders by which
amount of maintenance is refused to be enhanced
in her favour.
4 Special Criminal Application No. 1095
of 2011 is preferred by wife Varshaben, whereas
Special Criminal Application No. 1765 of 2011 is
preferred by husband Rameshbhai.
5 I have heard learned advocates for both
the parties at length and perused the impugned
orders and available record. Since such
applications are pending for last five years and
notices were already issued before five years, it
would not be appropriate to dispose of them on
technical ground that practically the impugned
orders are not subject to challenge under Article
226 of the Constitution by such Special Criminal
Application, but considering the fact that there
are concurrent findings of similar nature against
both the sides and considering restriction of
second revision in case of concurrent findings,
such Special Criminal Applications might have
been preferred and probably it may be the reason
for issuing the notice to the otherside,
otherwise there is no reason to entertain any
such Special Criminal Application in absence of
any glaring illegality or irregularity or
miscarriage of justice or arbitrariness or
perverseness in the concurrent findings by two
Courts below. It is also quite clear and obvious
that in such Special Criminal Application, it
would not be appropriate for this Court to
reappreciate the evidence only because such
petitions are filed and to interfere or to modify
the impugned judgment and order only because of
possibility of arriving at some different
interpretation and conclusion based upon the
available evidence on record. In other words,
the prayer in the petitions is to quash and set
aside the impugned orders and, therefore, though
these are Special Criminal Applications,
practically right and jurisdiction of this Court
is almost similar to that of revisional Court to
verify that whether there is any irregularity or
illegality on the face of the record so as to
interfere with the impugned judgment and order.
6 At the same time, it cannot be ignored
that when maintenance is awarded in favour of
minor daughters and that too meagre amount of
Rs.2,500/- and Rs.2,000/- pm, practically there
is no substance even on merits so as to interfere
with such order when there are two concurrent
decisions against the father. There are also
other reasons to say so viz. [1] the father has
got alternative remedy under the provisions of
the Cr. P.C in the form of Section 127 to apply
for modification of such order if there is any
change in circumstances and that there might be
change in circumstances inasmuch as minor
daughters would now have been probably married.
In that case, considering the provisions of the
statute, when adult son and married daughter are
not entitled to claim maintenance from father,
the father should have approached the trial Court
with requisite evidence for modification of
impugned order of maintenance in favour of minor
daughters. Therefore, practically there is no
substance in the Special Criminal Application No.
1765 of 2011 preferred by the father against the
order of enhancement of maintenance in favour of
his minor daughters. Whereas so far as denial of
maintenance to the wife is concerned, we have to
scrutinize the available facts, circumstances and
evidence on record and, therefore, it is
scrutinized for all purpose and for all claimants
i.e. wife and minor daughters of the husband. On
scrutiny of available record, it transpires that
when the parties have matrimonial dispute,
initially husband has agreed to pay Rs.2 lakhs to
the wife towards lumpsum maintenance, but
ultimately the competent Court has awarded an
amount of Rs.1,500/- pm towards maintenance of
all the petitioners and such order was in force
for pretty long time. Whereas during pendency of
Criminal Misc. Application No. 1050 of 1996 there
was again compromise between the parties whereby
husband has paid Rs.2,50,000/-, but wife has
failed to disclose such facts while praying for
enhancement of amount of maintenance in this
round of litigation. Thereafter, again there was
further litigation between the parties in the
form of Special Civil Suit No. 247 of 2001,
wherein also wife has entered into some
settlement and let gone her right of maintenance.
Therefore, the trial Court has held that when
wife has agreed for settlement and accepted
amount for let going her right of maintenance,
now she is not entitled to further maintenance.
7 As against that, it is contended by wife
before the trial Court that she has entered into
compromise for herself only when amount of
permanent maintenance has been exhausted and
utilized and she has not settled the dispute
regarding right of maintenance of her minor
daughters and that she has not signed as their
guardian in any such compromise and, therefore,
minor daughters are certainly entitled to get
maintenance from their father. Therefore, the
trial Court has considered that even if there is
a disclosure in the divorce deed that wife has
let gone the right of maintenance for all of
them, it is not binding to minor daughters and,
therefore, minor daughters are entitled to
claim /maintenance, but the wife is not entitled.
8 However, the trial Court has though held
that wife is not entitled to maintenance, it is
observed in the impugned judgment that submission
by the husband that second application for
maintenance is not maintainable when initially
application for maintenance has been settled by
let going right of maintenance.
9 In any case, all such issues are now
well settled by few decisions of different Courts
viz.
[1] Rajesh R Nair v. Meera Babu reported in
2013 Cri. L.J. 3153, wherein Division Bench of
Kerala High Court has held that waiver of right
to maintenance by an agreement is not permissible
because such agreement would be void agreement as
against public policy. It would amount to ousting
of jurisdiction of Magistrate and Family Court to
entertain maintenance claim which cannot be
permitted by law. Therefore, such agreement being
void would be unenforceable and hence claim for
maintenance cannot be rejected on the basis of
such agreement of waiver of right to maintenance.
Paragraphs 8 and 9 of such judgment read as
under:-
“8 The respondent has filed Exh.P1 claim
for maintenance under Section 125 of Cr. P.C.
Section 125 of Cr. P.C provides that if any
person having sufficient means neglects or
refuses to maintain his wife, unable to
maintain herself, a Magistrate of the first
class may, upon proof of such neglect or
refusal, order such person to make a monthly
allowance for the maintenance of his wife at
such monthly rate, as such Magistrate thinks
fit, and to pay the same to such person as
the Magistrate may from time to time direct.
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. Under this Section, a wife who
is unable to maintain herself can claim a
monthly allowance for her maintenance from
her husband having sufficient means when he
neglects or refuses to maintain her. Thus,
the right to claim maintenance provided to
the wife is a statutory right created by the
Parliament. This is for achieving the goal of
protecting a wife who is unable to maintain
herself to claim maintenance from her husband
having sufficient means when he neglects or
refuses to maintain her. The public policy of
protecting such women is reflected in Section
125 of Cr. P.C. In other words, 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 given up her right to claim
maintenance from the husband is void and
hence, unenforceable.
9 A Magistrate of the First Class is
conferred with jurisdiction to deal with a
claim for maintenance under Section 125 of
Cr. P.C. Now, a Family Court can also
exercise the jurisdiction exercisable by a
Magistrate of the First Class under Section
125 of Cr. P.C. as provided under clause (a)
of sub-section (2) of Section 7 of the Family
Courts Act. Thus, a Magistrate or a Family
Court has jurisdiction to deal with the claim
of a wife for maintenance. This jurisdiction
is conferred on such courts by the
Parliament. By the act of parties, the courts
cannot be deprived of such jurisdiction. In
other words, the parties cannot agree to oust
the jurisdiction of a Magistrate or a Family
Court to entertain a claim for maintenance
preferred by a wife against her husband. For
this reason as well, the clause of waiver
incorporated in Ext.P4 agreement by which the
respondent has given up her right to claim
maintenance from the petitioner cannot hold
good in the eye of law. Therefore, the
contention raised by the learned counsel for
the petitioner that in view of the waiver of
the right to claim maintenance by the
respondent, Ext.P1 claim preferred by her is
not maintainable is liable to be rejected and
hence, we do so.”
[2] In Rishikesh Singh alias T.R. Singh v.
Kiran Gautam reported in 2015 Cri.L.J. 126,
Chhattisgarh High Court has confirmed that decree
of divorce obtained by mutual consent would be no
ground to deny maintenance until wife has not
remarried after divorce. It is further held that
even if wife is junior advocate, it cannot be
held that she is able to maintain herself and,
therefore, she would be entitled for the
maintenance.
[3] Smt. Vanamala v. H.M. Ranganatha Bhatta
reported in [1995] 5 SCC 299, wherein the Hon’ble
Supreme Court has also taken the same view that
wife, who obtains divorce by mutual consent
cannot be denied maintenance by virtue of section
125[4] and thereby restored the order of the
Sessions Court, which has concluded that wife was
entitled to maintenance notwithstanding divorce
by mutual consent and remanded the matter to the
trial Court for determining quantum of
maintenance. Thereby, the Hon’ble Supreme Court
has set aside the order of the High Court which
held that wife is not entitled to maintenance
once she has divorced her marriage by mutual
consent. It would be appropriate to recollect
here that for coming to such conclusion, the
Hon’ble Supreme Court has relied upon as many as
three other decisions of different High Courts,
which are quoted in such reported case and
approved by the Hon’ble Supreme Court.
Therefore, as on date, there are at least as many
as five judgments including judgment of the
Hon’ble Supreme Court, which confirm that a wife
who obtains divorce by mutual consent cannot be
denied maintenance by virtue of section 125 [4]
of the Cr. P.C.
10 In view of such facts and circumstances,
so far as observations regarding wife, confirming
that she is not entitled to maintenance by the
trial Court as well as the Sessions Court are
unwarranted and to that extent those observations
are hereby quashed and set aside. However, so far
as enhancing the amount of maintenance or
awarding maintenance is concerned, in absence of
any cogent and reliable evidence on record, it
would not be possible for this Court to evaluate
the requirement of the wife and capacity of the
husband and, therefore, it would not be possible
to fix any amount of maintenance, that can be
enhanced or paid in favour of the wife. At the
same time, it is also clear that if the amount of
maintenance is decided at this stage in Special
Criminal Application, then the husband would lose
his right to challenge such quantum of
maintenance before a Court within his reach i.e.
either Sessions Court or High Court in
appropriate revisional jurisdiction and,
therefore, so far as the amount of maintenance in
favour of the wife is concerned, though that part
of order refusing maintenance to wife is quashed
and set aside; for the aforesaid reason, the
matter needs to be remanded to the Court of
Judicial Magistrate First Class, else wife would
not be entitled to any amount of maintenance from
the date of filing of such application till date,
if we direct her to file fresh application for
enhancement of amount of maintenance before the
Competent Court. To that extent, Special
Criminal Application No. 1095/2011 is allowed and
thereby order dated 4/3/2010 in Criminal Misc.
Application No. 496 of 2008 by the Judicial
Magistrate First Class, so also order in Criminal
Revision Application No. 23 of 2010 by the
Sessions Court, Bhavnagar, are quashed and set
aside and the matter is remanded to the Court of
the Judicial Magistrate First Class, Bhavnagar,
for deciding amount of maintenance for wife
purely on evidence that may be adduced by both
the parties before it, in accordance with law.
Rule made absolute accordingly.
11 For the purpose, both the parties are at
liberty to adduce evidence before the trial
Court. The trial Court shall decide such
application within six months from the date of
receipt of writ of this order. However, it is
also made clear that if the trial Court is unable
to proceed with such application in reasonable
time, then wife may be free to file fresh
application with relevant facts and evidence for
modification of earlier order or for getting
maintenance afresh.
12 So far as revision against order of
maintenance in favour of minor daughters is
concerned, considering the amount of maintenance
being Rs.2,500/- and Rs.2,000/- pm, there is no
substance in such petition so as to interfere
with the same after five years. On the contrary,
after such long time, in fact even such amount of
maintenance needs to be enhanced or increased
considering the inflation and devaluation of
rupee, so also requirement of daughters because
of their age. However, it is made clear that if
at all daughters are married in between, then it
would be appropriate for the petitioner – father
to apply for cancellation of such order before
the trial Court and in that case, the trial Court
shall decide it in accordance with law. It cannot
be ignored that for increasing the amount of
maintenance in favour of daughters, the trial
Court as well as the Sessions Court have
considered the available evidence on record,
wherein it has been recorded that the petitioner
– husband is earning Rs.11,000/- pm at the
relevant time. Therefore, amounts of Rs.2,500/-
and Rs.2,000/- pm are reasonable amounts for
maintenance of minor daughters.
13 Therefore, there is no substance in
Special Criminal Application No. 1765 of 2011 and
hence it stands dismissed. Rule is discharged in
Special Criminal Application No. 1765 of 2011,
whereas Rule is made absolute in above terms so
far as Special Criminal Application No. 1095 of
2011 preferred by wife is concerned.
(S.G.SHAH, J.)
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