The judgment established that a woman's waiver of future maintenance does not preclude her from claiming maintenance under Section 125 of the Code, and illusory amounts cannot be considered as reasonable substitutes for maintenance.

JUDGMENT

Jay Sengupta, J. - This is an application challenging an order dated 31.07.2017 passed by the learned Additional Sessions Judge, 2nd Court, Uluberia, Howrah in Criminal Revision No. 6 of 2016/12 of 2016 arising out of order dated 19.10. 2015 passed by the learned Judicial Magistrate, 1st Court, Uluberia, Howrah in Misc. Case No. 158 of 2018 (T.R. No. 174 of 2012).

2. The marriage between the petitioner and the opposite party no. 2 was solemnized in 1995. A child was born to the couple who is aged about 24 years now. On March 10, 2007 the said marriage was dissolved by way of a divorce on mutual consent. An amount of Rs. 90,000/- was purportedly agreed to be the full and final settlement of the claims of the wife. However, in 2012, a wife filed an application under Section 125 of the Code in Misc. Case No. 158 of 2012 seeking maintenance allowance at the rate of Rs. 20,000/- per month for herself and her minor son. On October 19, 2015 the learned Magistrate directed payment of maintenance allowance at the rate of Rs 1000/- from the date of order for the wife while maintenance for the son was rejected as he had become a major by then. The petitioner filed a revision before the learned Sessions Court challenging the said order. The learned revisional Court directed the husband to pay maintenance allowance at the rate of Rs. 5,000/- per month from the date of the impugned order in favour of the wife.

3. Learned Senior counsel appearing on behalf of the petitioner/husband submitted as follows. Although the opposite party no. 2 had waived her right to future maintenance from her husband by accepting a sum of Rs. 90,000/- as a full and final settlement in 2007, in 2012 she again filed an application under Section 125 of the Code claiming maintenance for herself and her minor son. The amount was received by the wife by way of full and final settlement with an affidavit made before the learned Judge, Lok Adalat in Howrah in MAT Suit No. 116 of 2007. The claim of the son was rejected in 2015 as he had become an adult by then. But, a sum was erroneously granted by the learned Trial Court as maintenance allowance for the former wife and was subsequently affirmed and enhanced by the learned Revisional Court. Reliance was placed on a decision of this Court in Sri Subhankar Majumder vs. Smt. Banani Majumder, 2016 SCC OnLine Cal 8937, of the Punjab and Haryana High Court in Puran Chand vs. Smt. Palo, 1986 (2) Crimes 177 and on a Division Bench of the Hon'ble Bombay High Court in Shrawan vs. Sau Durga & Ors., 1988 (3) BomCR 343.

4. Learned counsel appearing on behalf of the opposite party no. 2 submitted as follows. An agreement to waive right to future maintenance is against public policy and could not be sustained in the eye of law. Reliance was placed on a decision of this Court in Joydel Kumar Biswas vs. Maduri Biswas, 1994 SCC OnLine Cal 307.

5. The issue at hand relates to Clause (c) of Sub-Section (3) of Section 127 of the Code. The same may be quoted as under:-

'127. Alteration in allowance.- ..........

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- .........

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.

........'

6. In Shri Subhankar Majumder Versus Banani Majumder (supra), an Hon'ble Single Bench of this Court took a view that if the wife voluntarily surrendered her right to maintenance or interim maintenance at the time or after her divorce obtained from her husband, then she could not again claim maintenance under Section 125 of the Code. This is in keeping with what is laid down in clause (c) of sub-section (3) of Section 127 of the Code.

7. Earlier, although an Hon'ble Single Judge in Joydel Kumar Biswas (supra) ref