Criminal Revision No.2362 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.51282-83 of 2008 and Criminal Revision No.2362 of 2008 Date of Order: 1st July, 2009 Usha Devi ....Petitioner Versus Mahinder Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Vijay S,Kajla, Advocate for the petitioner. Mr. Arvind Bansal, Advocate for the respondent RAJIVE BHALLA, J. Criminal Misc. No.51283 of 2008 Allowed as prayed for. Criminal Misc. No.51282 of 2008(O&M) and Criminal Revision No.2362 of 2008 Usha Devi, the petitioner challenges the order dated 01.09.2008, passed by the Additional Sessions Judge, Kaithal, accepting the revision filed by the respondent and as a result, setting aside the order dated 04.07.2008, passed by the Judicial Magistrate, Ist Class, Kaithal, granting interim maintenance to the petitioner. The petitioner and the respondent were married on 28.02.1990. On account of matrimonial differences, the petitioner filed a petition under Section 125 of the Cr.P.C. (hereinafter referred to as the 'Code') for grant of maintenance and a criminal complaint under Sections 406/498-A of the IPC. It appears that pursuant to an alleged settlement between the parties, the petitioner made a Criminal Revision No.2362 of 2008(O&M) -2- statement that as she had received Rs.1,50,000/- from the respondent, she did not wish to pursue the application filed under Section 125 of the Code. The application was, therefore, withdrawn on 21.3.2006. As agreed between the parties, they filed a petition for grant of a decree of divorce by mutual consent, under Section 13-B of the Hindu Marriage Act, before the District Judge, Kaithal. The petitioner alleges that her statement that she had received Rs.1,50,000/- is incorrect as no such payment was received and, therefore, the petition filed under Section 13-B was dismissed on 5.3.2007. The petitioner, thereafter filed a petition under Section 13 of the Hindu Marriage Act, for grant of a decree of divorce on the grounds of cruelty and desertion. The respondent was proceeded against ex-parte on 09.06.2008 and eventually the District Judge, Kaithal granted a decree of divorce on 21.07.2008. As the petitioner could not maintain herself she filed a fresh application under Section 125 of the Code, for grant of maintenance and pending final adjudication of the petition prayed for grant of interim maintenance. In opposition to the prayer for maintenance, the respondent-husband pleaded that as he had already paid Rs.1,50,000/- as full and final settlement of all claims of maintenance, the petition should be dismissed. The Judicial Magistrate Ist Class Kaithal, vide order dated 04.07.2008 directed the respondent to pay interim maintenance of Rs.1000/- per month. Aggrieved by the aforementioned order, the respondent filed a revision. The Additional Sessions Judge, Kaithal accepted the revision and reversed the order passed by the Judicial Criminal Revision No.2362 of 2008(O&M) -3- Magistrate Ist Class, Kaithal by holding that in view of her statement, that she had received Rs.1,50,000/- as full and final settlement of future maintenance, the petitioner was not entitled to interim maintenance. Counsel for the petitioner submits that the revisional Court failed to comprehend that the statutory right conferred by Section 125 of the Code cannot be waived by agreement and even if it is accepted, though not admitted, that the petitioner received Rs.1,50,000/-, in the earlier proceedings, this would not operate as an estoppel against the petitioner claiming maintenance interim or final. Reliance for this argument is placed upon a Division Bench judgment of this Court reported as Ranjit Kaur vs. Pavittar Singh, 1991 (3) RCR (Criminal), 212 and a Single Bench judgment of this court reported as Sushil Kumar vs. Neelam, 2004 (2) RCR (Criminal), 760. It is further submitted that the petitioner was duped by the respondent into making a statement that she had received Rs.1,50,000/- but in fact no such amount was ever paid to the petitioner. Counsel for the respondent, on the other hand, submits that as the petitioner has admitted the receipt of Rs.1,50,000/- as future maintenance, she is estopped from filing a fresh application. It is submitted that the law of estoppel applies to the petitioner and not to the provisions of Section 125 of the Code and therefore, the judgments relied upon by the petitioner are irrelevant. I have heard counsel for the parties and perused the impugned judgment as also the order passed by the trial court. Criminal Revision No.2362 of 2008(O&M) -4- It is not disputed by either party that the word 'wife' appearing in Section 125 of the Code includes a divorced wife. It is not denied that the petitioner made a statement, in prior proceedings under Section 125 of the Code, that she has received Rs.1,50,000/-, though the petitioner alleges that she was duped into making the statement though no such amount was ever received. It is not denied that parties filed a petition for grant of divorce by mutual consent, which was dismissed.It is also accepted that thereafter the petitioner filed a petition for grant of a decree of divorce. The respondent was proceeded against exparte and eventually a decree for divorce was passed. It is not denied that the petitioner has not re- married. Shorn of the factual matrix of the case, the question that requires consideration is whether a wife can surrender her right to future maintenance, conferred by Section 125 of the Code. A similar question came up for consideration before a Division Bench in Ranjit Kaur vs. Pavittar Singh (supra) in the following terms:- “Whether a wife who has voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance under Section 125 of the Code of Criminal Procedure.” After considering the nature of the proceedings and the statement made by the wife that she relinquishes her right to maintenance, the Division Bench held as follows:- “In nutshell, it is a statutory right which the Criminal Revision No.2362 of 2008(O&M) -5- legislature has framed irrespective of the nationality, caste or creed of the parties. The statutory liability imposed by this section is, therefore, distinct from liability under any other law. Thus, where it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the maintenance. This right being a right to survival or livelihood essentially survives and lives every moment of life of the person entitled to be maintained. The use of the words ' and to pay the sum to such person as the Magistrate may from time to time direct” in the last part of Sub-section (I) (earlier to proviso to the same), clearly indicate this. Therefore, this statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to its being against public policy would also be against the clear intendment of this provision. Though the phrase “public policy” or “opposed to public policy” has neither been defined in the Contract Act nor anywhere else. Yet by now in the light of various authoritative pronouncement of different Courts, including the Criminal Revision No.2362 of 2008(O&M) -6- final one, (Central inland Water Transport Corporation ltd. and another v. Tarun Kanti Sengupta and another, AIR 1986 Supreme Court 1571), it has come to acquire a definite meaning. It connotes some matter which concerns the public good and the public interest. In any case, it can broadly stated to be equivalent to the policy of law. Therefore, giving effect to an agreement which overrides this provision of law, that is, Section 125 Code of Criminal Procedure, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and a void but legal agreement. In the former case, the legislature penalises it or prohibits it. In the later case, it merely refuses to give effect to it. That is what exactly Section 23 of the Contract Act provides for. We are thus clearly, of the opinion that the agreement of the type referred to in the question posed may not per se be illegal but it cannot be given effect to being a negation of the statutory right as provided for in this Section and being opposed to public policy. XX XX XX XX XX XX As has been pointed out earlier, the Criminal Revision No.2362 of 2008(O&M) -7- jurisdiction of the Magistrate under this Section is not ousted by any agreement between the parties if the facts and circumstances of the case otherwise justify the grant of maintenance. In other words, in every such case the Magistrate is bound to examine whether there has been neglect or refusal on the part of the husband to maintain the wife. If the Magistrate finds that the wife is being so neglected or so refused to be maintained despite the agreement for grant of maintenance at a particular rate or denying the same, he is duty bound to award appropriate maintenance under this Section. The agreement pleaded being opposed to public policy and against the clear intendment of this Section cannot be enforced or be a shield in a Court of law.” In Sushil Kumar (Supra), while considering a similar controversy it was held as follows:- “Now the question which remains to be answered is whether the respondent-former wife is debarred or estopped from claiming the said maintenance on the plea that at the time of granting of decree of divorce by mutual consent, she had agreed not to claim the maintenance from the petitioner in future. In my opinion, the aforesaid contention of the petitioner cannot be accepted. The right to Criminal Revision No.2362 of 2008(O&M) -8- claim maintenance by the wife, children and the old parents, who are not capable to maintain themselves, has been provided under Section 125 of the Code as a public policy by the State. The definition of “wife” has also been given extended meaning by the statute in order to provide security in life to a wife whose marriage has been dissolved by a decree of divorce and who being a destitute is unable to maintain herself. This is a matter of public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under a public policy cannot be waived by the said person by mutual agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872, and the same cannot be enforced in a Court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. In a similar situation, the Kerala High Court in Sadasivam Pillai v. Vijayalakshmi, 1987(2) All India Hindu Law Reporter 334, has held that merely the wife in the joint application filed by both the parties under Section 13-B of the Hindu Marriage Act, relinquished her right on each Criminal Revision No.2362 of 2008(O&M) -9- other's person or property, is not a bar for claiming maintenance under Section 125 of the Code.” A perusal of these extracts leaves no manner of doubt that a statement made by a wife, giving up her right of maintenance or an agreement to that effect would not estop a wife, whether divorced or otherwise, from filing a petition under Section 125 of the Code. Such a statement or agreement would be opposed to public policy and would violate Section 23 of the Indian Contract Act , 1872 being an agreement unenforceable in law. Any conclusion to the contrary would be opposed to the statutory provisions of the Act and would be violative of the public policy that underlines the provisions of Section 125 of the Code. In view of the legal and factual position referred to herienabove, it would necessarily follow that the Additional Sessions Judge, Kaithal, committed an error of jurisdiction in holding that the petitioner is estopped from claiming interim maintenance. Consequently the revision petition is allowed, the order dated 01.09.2008, passed by the Additional Sessions Judge, Kaithal is set aside and the order dated 04.07.2008 passed by the Judicial Magistrate Ist Class, Kaithal, is restored. July 1st, 2009 (RAJIVE BHALLA) nt JUDGE