1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 40 of 2005. Judgment reserved on: 24.07.2008. Date of Decision: July 31, 2008. ____________________________________________________________ Suresh Kumar. Petitioner. Versus Vidya and another. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the Petitioner : Mr. Naresh K.Thakur, Advocate. For the respondents : Mr. Rameshwar Sharma, Advocate. ______________________________________________________________ Surjnder Singh, J. The respondents, had filed the petition for maintenance under Section 125 Cr.P.C., against the petitioner herein, which was allowed by the trial court vide its order dated 31.5.2001, passed in Cr. Case No.310-IV/98, whereby the respondent wife was awarded the amount of Rs.400 and respondent No.2, minor son was awarded Rs.300/- per month, from the date of filing of the petition. The petitioner-husband filed an application under Section 127(3)(c) of the Code of Criminal Procedure, in short ‘the Code’ seeking cancellation of the maintenance order dated 31.5.2001 on the grounds that respondent wife, after the aforesaid order of maintenance, mutually dissolved her marriage with the petitioner husband by executing the deed on 5.7.2002 and voluntarily surrendered her right of maintenance. The father of petitioner also Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 executed gift deed with respect to 5 bighas of land in favour of the minor respondent and respondent No.1 wife. The respondent No.1 contested the application and submitted that foregoing the right of maintenance is opposed to the public policy and cannot negate the future right of maintenance. The learned trial court relied upon the judgment of this court delivered in case Jaipati vs. Gian Chand : Latest HLJ 2000 H.P.1, whereby it was held that such type of agreement is opposed to public policy which cannot be enforced and only defence against any order passed under Section 125 Cr.P.C. must be founded on the provision in the code. On the basis of the above judgment, the application was dismissed and the petitioner-husband unsuccessfully contested the said order in Revision Petition No.10/05/03 before the learned Additional Sessions Judge. Feeling aggrieved by the orders of both the courts below, the petitioner-husband has filed the instant petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India on the ground that impugned orders are against law and facts and the courts below wrongly ignored the fact that the respondent wife had voluntarily surrendered her right of maintenance and a gift deed qua 5 bighas was executed in favour of the minor respondent by his grandfather. I have heard the learned counsel for the parties and have legally examined their rival contentions. In the instant case both the parties are ‘Hindu’. The cancellation of maintenance order is sought firstly, on the ground 3 that both have divorced each other by an agreement and respondent wife has surrendered her rights of maintenance and secondly, on the plea of gift deed executed in favour of minor son by his grandfather. As far as the first plea is concerned, the petitioner has neither pleaded nor shown that such a divorce by an agreement can be sought. There is no pleading that the divorce was being sought as per the custom which is followed in their community. Section 13 of the Hindu Marriage Act, 1955 makes a provision for seeking divorce by any of the spouses on the grounds mentioned therein and the divorce as alleged is also not pleaded and proved to have been recognized by custom, therefore by virtue of Section 4 of the Hindu Marriage Act, it shall cease to have any effect. Further, in view of Jai Pati’s case supra, the agreement pleaded is opposed to the Public Policy and is against the intendment of Section 125 Cr.P.C., thus cannot be enforced or be a shield in the court of Law. Otherwise also the divorce as alleged is also not a legal divorce, therefore, in view of the above situation, it can not be said to be a case which is covered under Section 127(3) (c ) of the Code of Criminal Procedure, to cancel the maintenance to the wife. Secondly, the gift of the land in favour of the minor by his grandfather cannot be a hurdle in claiming the maintenance from his father (petitioner) by the minor respondent. Neither it can be forgone nor withdrawn by his mother, on behalf of the minor as it would certainly be against his interest To sum up, as already stated above, the agreement in question is opposed to public policy and also against the law, 4 therefore, the petition under Section 127(3) (c ) of the Code of Criminal Procedure was rightly dismissed by the courts below and I do not find any infirmity therein. Therefore, the present petition is dismissed. Send down the records. July 31, 2008. (Surinder Singh) ( Pds ) Judge.