Saturday 24 March 2012

agreement to surrender to maintaince is against public policy.hence does not bind party

Patna High Court
Rajesh Kochar vs Reeta Kumari on 18 March, 2002
Equivalent citations: 2002 CriLJ 3357, I (2003) DMC 284
Bench: S N Pathak
1. This revision is directed against the order dated 19.2.2001 passed in Misc. Case No. 16/1997/426A/2601 under Section 125, Cr.P.C.
2. By the aforesaid order, the Judicial Magistrate, 1st Class, granted maintenance allowance of Rs. 500/- to the opposite party, Reeta Kumari, of this revision. The husband of Reeta Kumari is the revisionist before this Court, The concise facts which are relevant of this revision are that earlier there was a matrimonial suit between the parties (Suit No. 220/1996) before the Family Court Lucknow, which, by its order dissolved the marriage of the parties under Section 13-B of the Hindu Marriage Act (Annexure-1). At page 16, copy of the joint petition filed by the parties before the aforesaid Family Court has been tagged, which shows that the opposite party Reeta Kumari had agreed that she will not claim any maintenance allowance from her divorced husband. On the basis of this agreement, it was submitted by the revisionist's lawyer, that Reeta Kumari was no longer entitled to claim any maintenance from him. Moreover, the judgment of the Family Court was the judgment of the Civil Court and, therefore, it must prevail upon the Magistrate in seisin of the case at Gaya. It was further submitted that under Sections 7 and 8 of the Family Courts Act, the case under Section 125, Cr.P.C. was barred. In support of his contention, the revisionist's lawyer referred to the decisions as reported in P. Jayalakshmi v. V. Ravichandran, I (1992) DMC 273=1992 Cri. LJ 1315, (Andh. Pra.); Sadasivan Pillai v. Vijaya Lakshmi, 1987 Cri. LJ 765 (Ker.); Bhagwant Singh v. Surjit Kaur, 1981 Crl. LJ 151 (Punj. & Har.); Linga Gounder v. Raman, 1978 Cri. LJ 469 (Mad.).

3. However, I find that the decision reported in Cri. LJ 1984 is not applicable to the facts of this case. The cases reported in Cri. LJ 1978, 1992 and 1987 all are against the contention of the revisionist. In all these cases, it has been held that a case under Section 125, Cr.P.C. is not barred under Section 8 of the Family Courts Act. In the instant case, there was no Family Court at Gaya and, therefore, petition for maintenance under Section 125, Cr.P.C. was very well maintainable before the Magistrate. Now, the question is whether in spite of the agreement arrived at between the parties, in the Matrimonial Court at Lucknow, the case under Section 125, Cr.P.C. was maintainable. In this connection, all the decisions referred to above have laid down that if an agreement entered into between the parties is against the public policy or is against statutory law, that agreement is void under Section 23 of the Contract Act. So, if Reeta Kumari agreed not to claim any maintenance allowance and on account of this agreement, the Matrimonial Court of Lucknow granted the divorce under Section 13-B of the Hindu Marriage Act and in its decree the agreement was incorporated. I do not think that this agreement would be binding upon Reeta Kumari not to claim any maintenance allowance in future. This is because the agreement of Reeta Kumari was against the spirit of statutory provision under Section 125, Cr.P.C. and it was also against the public policy. The spirit of Section 125, Cr.P.C. is to prevent destitution or vagrancy of divorced wife. So, any promise or agreement by any of the parties to the marriage would be against this spirit of law and it would also be opposed to the public policy, because it would be against the social order and, accordingly, opposed to public policy. I am, therefore, of the opinion that the agreement reached in the Family Court at Lucknow would not operate as bar to the maintainability of the maintenance case at Gaya preferred by Reeta Kumari. Divorce was obtained in the year 1987 and the maintenance case before the Court in Gaya was filed in the year 1997, nearby about 10 years after the divorce. It was the case of Reeta Kumari that after divorce, she was being maintained by her father. Now she felt the necessity to crave maintenance from her divorced husband because her father was no longer able to maintain her and also because she was unable to maintain herself. The Court on the basis of evidence held that Reeta Kumari was unable to maintain herself and, therefore, she was entitled to take maintenance allowance from the revisionist.
4. In this connection it was further submitted by the revisionist's lawyer that change of circumstances may entitle the revisionist to seek cancellation of the maintenance order. For this he relied on the judgment reported in 1981 Cri. LJ 151. In this judgment, it was held that the Magistrate is bound to vary or cancel the order passed for maintenance under Section 125, Cr.P.C. in the light of the Civil Court's judgment. Perhaps, this decision was passed on account of the law mentioned in Section 127(2), Cr.P.C. Section 127(2), Cr.P.C. has laid down that the Magistrate may cancel an order made under Section 125, Cr.P.C. in view of a decision of the competent Civil Court. Such a situation would arise when the Civil Court grants maintenance allowance in a civil suit and in that case the maintenance allowance granted under Section 125, Cr.P.C. may be varied, revised or cancelled. The Magistrate having made an order under Section 125, Cr.P.C. may also cancel, vary or revise this order when the Civil Court holds that the party claiming maintenance refused to live (with) the aforesaid spouse in spite of direction of the Court. Normally such eventualities occur when orders are passed under cases demanding restitution of conjugal right and the parties violate the decree of the Civil Court. In the aforesaid circumstances, the Magistrate who made the order under Section 125, Cr.P.C. is bound to cancel the order. This, however, does not mean that the Magistrate cannot assume jurisdiction under Section 125, Cr.P.C. simply there has been a divorce between the parties by a decree of a Family Court. under Section 125, Cr.P.C, even a divorcee is entitled to maintenance and in case of divorce, separate living by mutual consent does not arise. Moreover, maintenance allowance granted under Section 125, Cr.P.C. may also be cancelled if the wife who obtained divorce from her husband has voluntarily surrendered her right to maintenance under Section 127(3)(c), Cr.P.C. So, in the instant case, pertinent question was whether Reeta Kumari had surrendered her right of maintenance contemplated within Section 127(3)(c). It was the case of Reeta Kumari that the alleged agreement surrendering her right of maintenance was obtained under duress. Moreover, simply because in the divorce case before the Lucknow Family Court, the party had filed an agreement paper, that in itself will not suggest that Reeta Kumari had voluntarily surrendered right of maintenance to be claimed under Section 125, Cr.P.C. Voluntary surrender had to be substantiated on the basis of evidence on record. The Court held on the basis of evidence that there was no such case of voluntary surrender of the right of maintenance by Reeta Kumari.
5. The above discussion has shown that the impugned order passed by the Magistrate at Gaya was neither vitiated by any legal flaw nor the jurisdiction of the Court was barred under the Family Court Act or under any other law. The Court was, rather, judicious in allowing maintenance of Rs. 500/- per month taking into account the overall circumstances of the case and the liabilities of the revisionist to maintain his second wife and children as also his earnings.
6. In the result, this revision is dismissed.
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