Important points:
There is statutory obligation of the husband to maintain his wife and minor son and he cannot be permitted to contract out of such an obligation and such agreement is opposed to public policy. It was held that a waiver in derogation of a statutory right cannot be recognised by the court as it affects public policy and as it is against the very statutory obligation imposed on a husband to maintain his wife and children who are unable to maintain themselves.

JUDGMENT :

1. The petitioner is the husband and the respondent is the wife.

2. The respondent filed M.C.No.231/2014 in the Family Court under Section 125(1) Cr.P.C seeking maintenance from the petitioner. The application for maintenance was allowed by the Family Court on 25.06.2016, directing the petitioner to pay maintenance at the rate of Rs.5,000/-per month to the respondent.

3. The respondent filed an application as C.M.P.No.763/2017 under Section 125(3) Cr.P.C for execution of the order granting maintenance to her. While so, the dispute between the parties were settled and Ext.P2 agreement was executed by them on 03.10.2018.

4. The respondent had filed O.P.No.460/2014 also for realisation of past maintenance from the petitioner. She had also filed O.P.No.422/2013 against the petitioner for restitution of conjugal rights.

5. As per Ext.P2 agreement, the respondent agreed to withdraw the execution petitions filed by her for enforcement of the order passed by the court in her favour in O.P.No.460/2014. She also agreed that the relief granted to her in O.P.No.422/2013 is not required by her. The respondent further agreed that she did not want any relief as per the order in M.C.No.231/2014. It was also agreed by her that she would co-operate with the petitioner to cancel the order of the court in M.C.No.231/2014.

6. As per Ext.P2 agreement, the petitioner and the respondent had also agreed that they would live together in the house taken on rent by the petitioner.

7. Subsequently, the parties fell apart. The respondent filed an application as C.M.P.No.423/2019 in the Family Court under Section 125(3) Cr.P.C for realisation of the arrears of maintenance due from the petitioner for the period from 03.01.2018 to 04.04.2019.

8. The petitioner filed counter statement in C.M.P.No.423/2019 contending that, in view of Ext.P2 agreement, the respondent is estopped from claiming maintenance from him in execution of the order passed by the court in M.C.No.231/2014.

9. As per Ext.P4 order, the Family Court negatived the contention raised by the petitioner and found that the order in M.C.No.231/2014 is enforceable against the petitioner and that he is liable to pay the arrears of maintenance claimed by the respondent and directed him to pay the aforesaid amount within a period of two weeks.

10. The legality and propriety of Ext.P4 order are challenged by the husband in this original petition filed under Article 227 of the Constitution of India.

11. Heard learned counsel for the petitioner and also the respondent.

12. Learned counsel for the petitioner contended that, as per Ext.P2 agreement, the respondent had given up her claim for maintenance and she had agreed that she did not want the relief which was granted in her favour in M.C.No.231/2014 and therefore, the application made by the respondent for execution of the order in M.C.No.231/2014 is not maintainable.

13. Per contra, learned counsel for the respondent contended that, as long as the order in M.C.No.231/2014 is in force, the respondent is entitled to execute it against the petitioner. Learned counsel for the respondent also contended that, as per Ext.P2 agreement, the respondent had not permanently given up her right to claim maintenance from the petitioner.

14. There is no dispute between the parties with regard to the facts earlier narrated in this order. The only question to be considered is, what is the effect of Ext.P2 agreement on the order passed by this Court in M.C.No.231/2014 and whether, in view of Ext.P2 agreement, the respondent is estopped from executing the order granting maintenance against the petitioner.

15. There is no dispute with regard to the fact that, on the basis of Ext.P2 agreement, the respondent had withdrawn the application C.M.P.No.763/2017, which was pending before the court at that time.

16. True, as per Ext.P2 agreement, the respondent had agreed that she did not want the relief granted in her favour in M.C.No.231/2014 and that she would co-operate with the petit