The present Petition has been filed by the Petitioner under Articles 226 / 227 of the Constitution of India as well as under Section 482 of the Criminal Procedure Code challenging the impugned order passed in Revision Application No. 73 of 2011 by the learned Additional Sessions Judge, Morbi dated 5.4.2012 regarding the maintenance on the grounds stated in the Petition.
Heard learned Advocate Mr. Paresh M. Darji for the Petitioner and learned APP Mr. H.L.Jani for the Respondent No.1-State of Gujarat.
Learned Advocate Mr. Darji has raised the contention about the customary divorce and tried to emphasize referring to the writing (Exh.20) that customary divorce was granted and the Respondent - Wife herein has accepted the divorce with the liability of maintenance of the child. He has therefore contended that the Respondent - wife is now stopped from raising any contention and therefore this order is erroneous. Though such contention has been raised, the impugned order passed by the learned Additional Sessions Judge, Morbi in Revision Application No.73 of 2011 clearly refers to the fact that the writing (Exh.20), which is stated to be the writing for customary divorce is disputed by the Respondent - wife. It also reflected that the wife is stated to have accepted this customary divorce for alimony of Rs.4000/- only for herself as well as for the minor child, which is unbelievable. Infact reference is made to the judgment of the High Court of Gujarat, reported in case of Bai Laxmiben D/o, Ramabhai Hirabhai v. Bharatbhai Vechatbhai Patel & Another, 1986 (1) GLH 272, wherein the High Court of Gujarat has clearly made the observations referring to Section 125 of the Criminal Procedure Code regarding maintenance. The contentions raised by the learned Advocate for the Petitioner that the Respondent-wife had given up the claim for maintenance in writing was considered. It has been observed:
"The Court should see whether the agreement is conscionable or unconscionable. It is stated that if sufficient provision for the future maintenance is not made, the agreement should be ignored and the application should be allowed.
These observations have been made with reference to the public policy and this principle has its roots in the public policy and the ultimate object of the law. It has also been reflected in paragraph 8 of the judgment . Referring to this aspect, it has been observed:
"Agreement to surrender such right of future maintenance for illusory amount of maintenance would be unfair and unconscionable. Such agreement is entered into between two unequals. One (I.e. wife, child or parents, as the case may be) is destitute and helpless and another (I.e. husband, father or son as the case may be) relatively stronger and better placed in the society. Ordinarily this will be the position, though exception cannot be ruled out completely. In this background, if the amount determined for future maintenance is illusory, the agreement to surrender the right to maintenance also would be unlawful as it would be against the public policy and also unconscionable and unfair."
Therefore, in light of these observations, the contention raised by learned Advocate Mr. Darji for the Petitioner cannot be accepted. Moreover, the submission made by learned Advocate Mr. Darji referring to the promissory estoppel also is misconceived in light of the provisions of the Contract Act where such a contract would be void ab initio having entered into between two unequals and the law frowns upon any such contract which has been forced upon the party. Therefore, such an agreement is not an agreement which can be believed or accepted.
It is in these circumstances, the contentions of the estoppel does not come into play at all though such submissions have been made. Infact it is only a camouflage and therefore the present Petition cannot be entertained either in exercise of extraordinary jurisdiction under Article 226 of 227 of the Constitution of India or in exercise of inherent jurisdiction under Section 482 of Cr.PC. The present Petition therefore deserves to be dismissed and accordingly stands dismissed in limine.
It goes without saying that it would be open for the Respondent Nos. 2 and 3 to take appropriate measure as may be advised in future.
(Rajesh H. Shukla,J) Jayanti* Top