1. Rule. Mr.H.L. Jani, learned Additional Public Prosecutor, waives service of notice of Rule for respondent No.1- State and Mr.Pramal Rachh, learned counsel, waives service of notice of Rule for respondent No.2.
2. By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, the applicant has prayed to quash and set aside the order dated 31st January, 2011 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar in Criminal Miscellaneous Application No.250 of 2006.
3. The short facts of the case is that during the marriage span of seven years of applicant and the respondent No.2, as the respondent No.2 wife could not able to deliver baby child, the applicant-husband driven her from the house. Therefore, in 1982 the respondent No.2-wife filed Criminal Miscellaneous Application No.166 of 1982 in which Rs.105/- per month was awarded as maintenance. Thereafter in the year 1987 Criminal Miscellaneous Application No.1135 of 1987 was filed by the respondent No.2-wife for enhancement of maintenance amount, in which the amount of maintenance was enhanced to Rs.150/- per month. Thereafter the applicant had given divorce to the respondent No.2-wife and at that time, Rs.2,000/- was given to respondent No.2-wife by saying that further amount will be sent to her. Because of this promise given by the applicant-husband, respondent No.2-wife had withdrawn the applications and entered into settlement.
4. Thereafter as the settlement was arrived at between applicant and the respondent No.2 and the applicant had paid life time maintenance amount to the respondent No.2-wife, in 1992 the applicant-husband had filed Criminal Miscellaneous Application No.1422 of 1992 under Section 127 of the Code of Criminal Procedure for cancellation of order of maintenance. The said application was allowed by the learned 2nd Joint Judicial Magistrate First Class, Jamnagar vide order dated 16th February, 1993 and cancelled the earlier order dated 14th July, 1992 passed in Criminal Miscellaneous Application No.1135 of 1987.
5. Thereafter, the respondent No.2-wife had filed Criminal Miscellaneous Application No.250 of 2006 under Section 125 of the Code of Criminal Procedure for maintenance amount without disclosing the fact of settlement arrived at between herself and the applicant-husband and that she had accepted Rs.21,000/- as life time maintenance amount from the applicant-husband. The applicant had filed his reply and objection in the said application stating the facts of settlement and payment of Rs.21,000/- as life time maintenance amount to the respondent No.2-wife.
6. After hearing both the sides, the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar vide order dated 31st January, 2011 partly allowed the said Criminal Miscellaneous Application No.250 of 2006 and directed the applicant- husband to pay Rs.3,000/- as maintenance amount to the respondent No.2-wife from 09th March, 2006 to 09th March, 2010 within a period of one month and to pay Rs.3,000/- per month towards maintenance regularly after 09th March, 2010.
7. Being aggrieved by and dissatisfied with the said order, the applicant-husband has preferred the present revision application.
8. Heard Mr.E.E. Saiyed, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State and Mr.Premal S. Rachh, learned counsel for the respondent No.2.
9. Mr.Saiyed, learned counsel for the applicant, states that order passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar is against the provision of law. The learned Judge has committed grave error in passing the order. When maintenance amount for life time is paid to the respondent No.2-wife by the applicant-husband, then the application preferred by the respondent No.2-wife ought to have been rejected by the learned Judge. He has further contended that as per order dated 06th February, 2012 passed by this Court, the applicant had deposited Rs.50,000/- and to the best of the knowledge of the applicant, respondent No.2-wife had already withdrawn the said amount. It is contended by Mr.Saiyed that as per provision of Section 125 of the Code of Criminal Procedure the learned Judge has allowed the application, but as per provision of Protection of Rights of Divorce Act, the respondent No.2-wife is not entitled to receive any maintenance amount from the husband in the facts of the case.
10. Mr.Rachh, learned counsel for the respondent No.2- wife, states that right of wife, mother, father and legal children is given under Section 125 of the Code of Criminal Procedure for maintenance and nobody has right to waive that right given by the Constitution. He has contended that it is established by the Apex Court that none can waive such right. He has contended that the applicant-husband had given only Rs.21,000/- as life time maintenance amount, which is not sufficient for the life time of the respondent No.2-wife. The applicant-husband had cheated the respondent No.2- wife by giving only a meager amount. He, therefore, contended that the respondent No.2-wife is entitled to maintenance amount as awarded by the learned Judge. He has further contended that the present revision application is not maintainable and is required to be dismissed.
11. Mr.Jani, learned Additional Public Prosecutor for respondent No.2-State, read the order of the learned Judge and also contended that it is true that between the parties settlement was arrived at Rs.21,000/- as life time maintenance amount, which is paid to the respondent No.2-wife by the applicant-husband. In this matter legal question arise is that whether divorcee wife has right to file application under Section 125 of the Code of Criminal Procedure in a matter where compromise is already settled?
12. Heard learned counsel for the respective parties and also perused papers produced before me. I have perused Section 125 of the Code of Criminal Procedure, which reads as under:
“125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter.”
I have also perused Criminal Miscellaneous Application No.250 of 2006, in which the learned Judge has considered the issue involved in the matter. So far as argument of Mr.Saiyed, learned counsel for the applicant, that the matter is already settled between the applicant and respondent No.2 and life time maintenance amount is already paid by the applicant to respondent No.2, respondent No.2 is not entitled to any maintenance is concerned, the amount paid by the applicant, i.e. Rs.21,000/-, is very meager amount and is not sufficient amount to maintain herself for life time. As per the provision of Section 125 of the Code of Criminal Procedure it is a right given by the Constitution. The only question arise as to whether the applicant has right to waive the right given to her by the Constitution or not. To consider the said issue I have perused the judgment delivered by the Apex Court in the case of Basheshar Nath Vs Commissioner of Income-tax, Delhi and Rajasthan and another reported in AIR 1959 Supreme Court 149 in which the Apex Court has considered that none has right to waive fundamental right conferred by the Constitution. I have also perused the judgment in the case of Olga Tellis and others Vs Bombay Municipal Corporation and others reported in AIR 1986 Supreme Court 180 wherein the Apex Court has observed that there can be no waiver of fundamental rights. There can be no estople against the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. It is also considered by the Apex Court that none can waive such fundamental right. I have also perused decision of the Allahabad Court rendered in the case of Mahesh Chandra Dwivedi Vs State of U.P. And another reported in 2009 CRI.L.J. 139, in which the Allahabad Court has observed that if the wife is not able to maintain herself and remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her. Therefore even if compromise decree has been passed between the parties, it is not effected by Section 125(4) of the Code of Criminal Procedure and wife is entitled to claim maintenance from the husband till she re-marries and is unable to maintain herself. It is also observed by the Allahabad High Court that it is a public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under 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. Even it is held by the Kerala High Court and Punjab and Haryana High Court that in spite of any such agreement wife could not be debarred from claiming maintenance under Section 125 of the Code of Criminal Procedure.
It is also laid down by the Apex Court that divorcee wife, who has settled the matter with the husband for maintenance amount for life time, she cannot waive right given under the provision of Section 125 of the Code of Criminal Procedure. The said right is constitutional right. In the present case, the respondent No.2-wife was paid an amount of Rs.21,000/- by the applicant-husband towards maintenance for life time, but the same is not sufficient to maintain the respondent No.2-wife for her life time. Right given by the Constitution cannot be waived by any one. The respondent No.2-wife can file application under Section 125 of the Code of Criminal Procedure for amount of maintenance though she has settled the matter with husband for maintenance amount for her life time period.
As against this, applicant-husband has right to file application under Section 127 of the Code of Criminal Procedure against the enhancement of maintenance amount awarded to the respondent No.2-wife.
13. In view of this position, I come to the conclusion that even if there was divorce by mutual agreement and the applicant-husband has paid lump sum payment to respondent No.2-wife, she has right to claim maintenance under Section 125 of the Code of Criminal Procedure. In the circumstances, present revision application deserves to be dismissed and is hereby dismissed. The order dated 31st January, 2011 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar in Criminal Miscellaneous Application No.250 of 2006 is hereby confirmed. Rule is discharged.
(Z. K. Saiyed, J) Anup