Agreement By Which Wife Waives Right Of Maintenance Under Section 125 CrPC Not Enforceable, Kerala High Court Reiterates

The Kerala High Court on Thursday said the law is well settled that an agreement by which a wife waives her right of maintenance under Section 125 of CrPC is an agreement against public policy and the same is ab initio void and not enforceable.

"Therefore, the claim for allowance of maintenance by the wife cannot be disputed or denied on the basis of a void agreement and the wife is entitled to get maintenance ignoring the said void agreement," said Justice A. Badharudeen.

The Court in this case was dealing with a revision petition filed by the husband against the order of the Family Court, contending that as talaq had been pronounced on the wife, and they had entered into an agreement for return of gold ornaments and an amount of Rs. 25,000/- to her, she could not claim further maintenance.

The Court said there was no talaq as contended by the husband, and he cannot deny her maintenance. 

"Even otherwise, a divorced Muslim wife is entitled to get maintenance, till she will get remarried unless the claim for 'a reasonable and fair provision and maintenance' to be paid under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 to the divorced wife, not paid," it ruled. 

The Case 

The wife had earlier moved the Family Court at Tirur for the grant of maintenance under Section 125 CrPC alleging that she did not have any means. Before the Family Court, she pressed for a monthly maintenance amount of Rs.7,500/- from the husband, submitting that he is running a supermarket in Gulf and is also the proprietor of other business. He was earning Rs 90,000 per mont, the court was told.

The man in response submitted that talaq was pronounced and as per the agreement entered into between hims and the woman, five sovereigns of gold ornaments and Rs.25,000/- were given to her. She cannot not claim further maintenance, it was argued.

The Family Court granted Rs.4,500 as maintenance to the wife. It said he had failed to prove that there was talaq, although he had produced 13 documents in support of the same. He also could not prove that he had returned Rs.25,000/- and 5 sovereigns of gold ornaments. 

Challenge

Challenging the Family Court's order, the husband contended that it had erred in holding that he neglected to maintain the wife since it failed to take note that she had left the marital home on her own volition, and was "having extramarital relationship". The counsels also pointed out that he had been constrained to marry another person due to her "dishonest behaviour". He also said he only has a small job abroad and cannot not pay Rs.4,500 as maintenance.

Findings of the Court

Justice Badharudeen said findings of the Family Court appear to be convincing. The court also said there had been no evidence adduced to hold that she was living separately without any justification, and, on the contrary, the evidence suggests she has been "living separately along with her brothers, since she could not live along with the revision petitioner, who is cruel towards the respondent". 

Relying on decisions in Rajesh R. Nair v. Meera Babu (2013), and Vikraman Nair & Anr. v. Aishwarya & Ors. (2018), the court said the claim for maintenance could not be denied as the agreement by which the wife waives her right of maintenance protected under Section 125 CrPC is an agreement against public policy and is void ab initio. 

The court also said no such agreement was produced. It further took note that he had not raised any contention before the Family Court that she is capable of maintaining herself. 

"In fact, the Family Court granted only Rs.150/- per day to the respondent as maintenance and therefore, the monthly maintenance of Rs.4,500/- alone was granted. Going by the facts of this case, it cannot be said that the amount of Rs.4,500/- is on higher side. In view of the matter, the order impugned does not require any interference and the same stands confirmed," it observed while dismissing the review petition. 

The revision petitioner was represented by Advocates P.T. Sheejish, Parvathy S. Krishnan, Harikiran, Varnibha T., and A. Abdul Rahman. Advocates Binu V.V., S.K. Premjith Menon, Maneksha D., and P.J. Stephen appeared on behalf of the respondent. 

Case Title: xxx v. yyy

Citation: 2023 LiveLaw (Ker) 60 

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