Maintenance a right even if wife agrees to waive it, says HC
Rebecca.Samervel@timesgroup.com
Mumbai28.12.2018
: In a significant order, the Bombay high court has held that a woman’s right to maintenance cannot be done away with even if she had specifically waived off such a right in an earlier agreement with her husband. In the judgment pronounced recently, Justice M S Sonak said, “There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.” The HC in its judgment cited observations of another such ruling which said the statutory right of a wife for maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.
In the judgment, the HC dismissed the writ petition submitted by a man who said that his former wife’s application seeking maintenance be dismissed since she had specifically waived her right to it in the consent terms for divorce. The woman had moved the maintenance plea before a magistrate court in 2010. The man sought a dismissal of the plea and cited the consent terms. On October 13, 2011, the court rejected the man’s application. He then challenged it before the sessions court which too rejected his plea. In 2016, the man submitted a writ petition before the HC.
The HC has also directed the magistrate to dispose of the woman’s application for maintenance in accordance with law and on its own merits. The court said it was to be decided as expeditiously as possible and, in any case, within a year.
The woman had earlier told the HC that in 2009 she had filed a divorce petition. It was further stated that the court referred the couple for mediation where they reached a compromise on October 27, 2010. It was further stated that while the woman put her thumb impression on the consent terms, her husband signed it. Under the terms of the compromise their marriage was annulled. The compromise recorded that the woman was giving up her right to maintenance and property. The court then passed the decree based on the consent terms. The woman said she then moved the magistrate court seeking maintenance. The plea was moved under Section 125 of the Criminal Procedure Code which provides for maintenance of wives, children and parents.
She alleged that during the proceedings, the man contended that she cannot claim maintenance since she had given up her right to it. The woman claimed this was the first time she had heard this and said that she had never agreed to give up such a right. She claimed that the lines mentioning this were fraudulently included in the consent terms.
Rebecca.Samervel@timesgroup.com
Mumbai28.12.2018
: In a significant order, the Bombay high court has held that a woman’s right to maintenance cannot be done away with even if she had specifically waived off such a right in an earlier agreement with her husband. In the judgment pronounced recently, Justice M S Sonak said, “There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.” The HC in its judgment cited observations of another such ruling which said the statutory right of a wife for maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.
In the judgment, the HC dismissed the writ petition submitted by a man who said that his former wife’s application seeking maintenance be dismissed since she had specifically waived her right to it in the consent terms for divorce. The woman had moved the maintenance plea before a magistrate court in 2010. The man sought a dismissal of the plea and cited the consent terms. On October 13, 2011, the court rejected the man’s application. He then challenged it before the sessions court which too rejected his plea. In 2016, the man submitted a writ petition before the HC.
The HC has also directed the magistrate to dispose of the woman’s application for maintenance in accordance with law and on its own merits. The court said it was to be decided as expeditiously as possible and, in any case, within a year.
The woman had earlier told the HC that in 2009 she had filed a divorce petition. It was further stated that the court referred the couple for mediation where they reached a compromise on October 27, 2010. It was further stated that while the woman put her thumb impression on the consent terms, her husband signed it. Under the terms of the compromise their marriage was annulled. The compromise recorded that the woman was giving up her right to maintenance and property. The court then passed the decree based on the consent terms. The woman said she then moved the magistrate court seeking maintenance. The plea was moved under Section 125 of the Criminal Procedure Code which provides for maintenance of wives, children and parents.
She alleged that during the proceedings, the man contended that she cannot claim maintenance since she had given up her right to it. The woman claimed this was the first time she had heard this and said that she had never agreed to give up such a right. She claimed that the lines mentioning this were fraudulently included in the consent terms.
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