A wife's statutory right to maintenance under Section 125, CRPC cannot be waived or altered by any agreement in a divorce deed, as such clauses are void for being against public policy.

ORDER :

J.C. DOSHI, J.

1. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs :-

“(A) Your Lordships may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or direction, any other appropriate writ, order or quashing and setting aside the order dated 05.07.2016 passed by the learned Additional Chief Judicial Magistrate First Class, Mehsana in Criminal Misc. Application No.774 of 2009 as well as the order dated 30.09.2021 passed by the learned Sessions Judge, Mehsana, in Criminal Revision Application No.78 of 2016;

(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the order dated 05.07.2016 passed by the learned Additional Chief Judicial Magistrate First Class, Mehsana in Criminal Misc. Application No.774 of 2009 as well as the order dated 30.09.2021 passed by the learned Sessions Judge, Mehsana, in Criminal Revision Application No.78 of 2016;

(D) Your Lordships may be pleased to grant any other and further relief/s which may be deemed fit by this Hon'ble Court be granted.”

2. The petitioner is represented by learned advocate Mr. Vicky B. Mehta. Notice was issued to the respondent as per the record and Mr.Kartikkumar G. Barot learned advocate has filed appearance for respondent No. 2. But when the matter was taken up for hearing, he did not remain present.

3. Learned APP Mr. Raval canvassed his submission in limited sphere as it is a dispute between husband and wife arising from the matrimonial discord.

4. The substantial submission of learned advocate Mr. Vicky Mehta appearing for the petitioner is that the petitioner and the private respondent are husband and wife. They were married since long but since their matrimonial cord did not go well they decided to separate from each other. Hence, way back in 1994 a deed was executed between them by which they took customary divorce from each other and the clause therein contains that the private respondent has received permanent alimony as well as all her belongings.

5.1 Learned advocate Mr.Mehta submits that despite the aforesaid facts and document between the parties, the private respondent raised the dispute and thus, one more time an agreement was executed between the parties. Again some fixed amount has been granted by the petitioner to the private respondent towards permanent alimony. Receipt thereof is also issued. He would further submit that the petitioner has previously filed Criminal Misc. Application under Section 125 of the Criminal Procedure Code before the Judicial Magistrate First Class, Kalol being Criminal Misc. Application No. 340 of 1993. It was decided in favour of the petitioner but all the proceedings came to an end once the parties took cutomary divorce from each other and settled in their life. Yet, private respondent preferred Criminal Misc. Application No. 774 of 2009 before Additional Judicial Magistrate, Mehsana under Section 127 of the Criminal Procedure Code for enhancement of the maintainance. In this petition a specific contention was raised by the petitioner that since the customary divorce has been taken place and as a one time settlement permanent alimony has been paid to the petitioner, she cannot claim enhancement in the maintainance under Section 127 of the CRPC.

5.2 Learned advocate Mr. Viral Dave submits that learned Additional Judicial Magistrate did not understand the legal aspects and enhanced the amount of maintainance by allowing the petition. The error continued to crop as learned S