Statutory rights to maintenance under S.125 and 127 of the Code of Criminal Procedure cannot be waived or contracted out of, and any agreement attempting to do so is void under S.23 of the Indian Contract Act.

1. The two questions which arise for determination in these Criminal Revision Petitions, Crl. R. P. No. 57/77 filed by the husband and Crl. R. P. No. 64/77 filed by the wife, are whether a party can contract out of the statutory obligation to give maintenance arising under S.125 and 127 of the Code of Criminal Procedure and whether the maintenance awarded in the case is disproportionate to the income of the husband.

2. The petitioner in Crl. R. P. No. 57, now a Headmaster in an Upper Primary School, married the petitioner in Crl. R. P. No. 64/77 in the year 1963 and during their wedlock two daughters Vanaja and Thulasi, now aged 11 and 9 respectively, were born to them. Alleging neglect on the part of the husband to maintain, a petition was filed by the wife before the Additional Judicial Magistrate of the First Class, Tellicherry claiming maintenance for herself and the children. The Magistrate passed an order on July 1, 1974 granting maintenance at the rate of Rs. 40/- per mensem to the wife and Rs. 20/- each to the minor children. Thereafter, in the year 1975, the wife filed M. C. No. 57/75 before the same court under S.127 of the Code of Criminal Procedure claiming enhanced maintenance for herself and for her two minor children alleging change in their circumstances. This application was resisted by the husband on the

ground that as per Ext. D1 contract, the wife and the children have given up their right to claim enhanced maintenance and there has been no change of circumstance to warrant interference with the order of maintenance previously passed. The learned Magistrate, on a consideration of evidence adduced on both sides, held that the wife and children are not bound by Ext. D1 agreement and that there has been a change in the circumstance since the passing of the first order and awarded maintenance at the rate of Rs. 70/-per mensem to the wife and Rs. 40/-each to the two minor children. This order was challenged by both the parties before the Court of Session, Tellicherry, the husband filing Crl. R.P. No. 65/76, and the wife Crl. R. P. No. 77/76. That court disposed of these petitions by a common order holding that, although there has been a change in the circumstances, the wife is bound by Ext. D1 agreement and reduced the amount of maintenance granted to the wife to Rs. 40/- per mensem, but enhanced the maintenance granted to the minors by awarding Rs. 70/- and Rs. 60/- respectively per mensem.

3. This order is challenged by both parties, the husband on the ground that the minors are not entitled to enhanced maintenance and the quantum of maintenance awarded to them is excessive and the wife con tending that Ext. D1, which is inoperative and unenforceable under the Indian Contract Act cannot take away her right to claim enhanced maintenance under S.127 of the Code of Criminal Procedure.

4. The first question arising for decision is whether the wife is entitled to claim enhanced maintenance in view of the agreement in Ext. D1. It was contended on behalf of the wife that Ext. D1 agreement is clearly hit by S.23 of the Indian Contract Act and that a statutory right conferred on the wife cannot be taken away by a contract entered into between the parties.

5. It is not disputed that the wife was receiving a monthly allowance as ordered by the Magistrate. It is only on the ground that the wife is bound by Ext. D1 agreement that the husband is refusing to give her anything more than what has been agreed to in Ext. D1. Under S.127 (1) of the Code, on proof of a change in the circumstances of any person, receiving under S.125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, father or mother, as the case may be, the Magistrate can make such alteration in the allowance as he thinks fit. The child or mother receiving maintenance under S.125 of the Code has been given a right under S.127 to claim enhanced maintenance on proof of change in their circumstances. Before consideri