30 May 2020

Agreement by wife for relinquishment of her right to claim maintenance is not enforceable even if voluntarily entered by her

Divorce by mutual consent - Wife agreed not to claim any maintenance including Streedhan, husband assured to continued marrital relationship and maintain her- Husband and wife continued their marrital relationship inspite of paper decree of divorce - After some years husband discontinued this relationship and not made any arrangement for maintenance of wife who has been divorced by him - Wife claimed maintenance u/s.125 of CrPC - Husband's defence that she had given up her claim for maintenance, when the decree for divorce by mutual consent was passed; and she has income source as she is running a beauty parlour.

Held:

   A woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.[Para No.20]

Agreement by wife for relinquishment  of her right to claim maintenance is not enforceable even if voluntarily entered by her
   The statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under section 23 of the Indian Contract Act, being opposed the public policy. The fact that the said agreement was recorded in the decree of divorce passed by the Family Court does not carry the matter any further. It is trite that when a decree is passed on the basis of the consent terms, the consent terms constitute nothing but contract with the imprimatur of the Court. If a term of the contract is void, being opposed to the public policy, the fact that a consent decree rests on it does not add any sanctity to such contract, nor the decree insulates it from the consequence of being declared as void.[Para No.22]

   An agreement in which the wife gives up or relinquishes her right to claim maintenance at any time in future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.[Para No.23]

   The fact that the wife carries on some business and earns some money is not the end of the matter. Neither the mere potential to earn nor the actual earning, howsoever meager it may be, is sufficient to deny the claim of maintenance.

   In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.[Para No.32]

Bombay High Court

Sanjay Damodar Kale
Vs.
Kalyani Sanjay Kale

Decided on 26/05/2020


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