The Gauhati High Court recently held that right to receive maintenance from husband under Section 125 of the Code of Criminal Procedure (CrPC) is a statutory right of a wife and the husband cannot escape from his liability by signing an agreement to the contrary.
Such an agreement, the High Court said, is against public policy and would be void.
“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…It has also been held that an agreement by which the wife waived her right to claim maintenance would be a void agreement as against public policy,” single-judge Justice Rumi Kumari Phukan held.
In this regard, the Court placed reliance on the judgment of the Punjab and Haryana High Court in Ranjit Kaur v. Pavittar Singh in which it was held that maintenance is a statutory right, which the legislature has framed irrespective of nationality, cast or creed of the parties.
“The statutory liability under Section 125 is, therefore, distinct from the liability under any other law….. 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 Court made it clear.
Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision, the Court further said.
The Court was hearing a plea filed by a wife challenging orders of a trial court, which on June 26, 2019 denied her maintenance on the ground that she had entered into an agreement with her husband that her expenses would be looked after by her parents, till the time she stayed at her parental house.
The couple had gotten married on March 10, 2016. Within three months, the wife claimed that she was subjected to torture by the husband and her in-laws and there were dowry demands.
The wife lodged a criminal case and then the husband and his parents tried to settle the case. While settling the case, the wife allegedly agreed that till the time she would stay at her parents’ house, her expenses would be looked after her by parents.
She alleged that the husband never returned to take her back to the matrimonial house and accordingly, she sought maintenance for herself as she was pursuing her undergraduate studies.
On the other hand, the husband alleged that the wife was leading an adulterous life. He relied upon the personal diary of the wife, wherein she had confessed to having some inclination towards another man prior to the marriage.
The husband also cited the existence of the agreement.
The trial court rejected the argument of the husband regarding adultery stating that that the wife had such feelings for another person prior to her marriage and not after marriage with the husband and thus, it couldn’t be said that she was leading an adulterous life.
Despite that, the trial court ruled against the wife leading to the present appeal before the High Court.
The High Court noted that the wife was living at her parental house since January 2017 and that the husband hasn’t provided any maintenance to her since then despite the fact that she was pursuing her education.
“Peculiarly, in his cryptic written objection, he has not narrated any detail as to under what circumstances, she began to reside in the parental house and as to why the FIR was also filed against him and simply it is stated that the matter has been settled between the parties. Such an evasive denial on the part of the husband itself indicates that he has not taken proper care of his wife, while she was in her parental house,” the Court said.
The judge further noted that plea of the husband itself revealed that he had not bothered to maintain his legally married wife though he admitted that she was a college student with no source of income.
“More so, her husband did not even hesitate to raise the plea of adultery, simply on the expression she recorded in her diary that she had some inclination to another person, prior to her marriage,” the bench added.
As regards the agreement, the Court said the same would be void in view of Section 125 CrPc.
The judge noted that the husband was a teacher in a school and was earning around ₹22,000 per month.
“Going by the provisions of the Act and the pleadings and evidence on record and legal proposition, it can be held that the husband has not been able to prove that he has no sufficient means to discharge his obligation and that he did not neglect or refused to maintain his wife, whereas the wife has been able to prove that there is neglect on his part to maintain his legally married wife,” the bench said.
It, therefore, set aside the trial court order and directed the trial court to consider the matter afresh.
“Both the parties are directed to appear before the learned trial Court on June 14, 2022, to receive further order from the court,” the High Court said.
Advocates A Dutta and A Ganguly appeared for the wife while the husband was represented by advocate R K Bhatra.
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