Point of Law: An agreement by which a wife waives her right of maintenance protected under Section 125 of Cr.P.C is an agreement against public policy and the same is ab initio void and not enforceable.

ORDER :

This revision petition has been filed under Section 19(4) of the Family Court Act and this revision is at the instance of the respondent in M.C.No.121/2015 on the files of the Family Court, Tirur. Revision Petitioner herein is the respondent in the above M.C. The respondents herein is the petitioner in the above M.C.

2. Heard the learned counsel for the revision petitioner as well as the learned counsel appearing for the respondent.

3. Short facts:

The respondent herein, who admittedly is the wife of the petitioner, moved before the Family Court and pressed for grant of allowance of maintenance under Section 125 of Cr.P.C, alleging that she did not have any means of maintenance. Further the respondent contended before the Family Court that the revision petitioner had been running a supermarket in Gulf; owned vehicles and he was the proprietor of other business. Therefore, he had been earning Rs.90,000/-per month. Accordingly, the respondent/petitioner pressed for Rs.7,500/-as monthly maintenance from the revision petitioner.

4. The revision petitioner herein, the respondent in the M.C filed objection denying the contentions. According to the revision petitioner, talaq was pronounced and agreement was executed. Further it was contended by the revision petitioner before the Family Court that since the respondent was a divorced woman and as per agreement executed in between them, 5 sovereigns of gold ornaments and Rs.25,000/-were given to the respondent herein, she could not claim maintenance further.

5. The Family Court tried O.P.No.177 of 2015 along with M.C.No.121/2015.

6. The Family Court recorded evidence confined to PW1 to PW4 and Exts.P1 and P2 on the side of the respondent herein.

Similarly, RW1 to RW5 were examined and Exts.R1 to R13 were marked on the side of the revision petitioner.

7. The Family Court appraised the contentions. Thereafter, the Family Court granted Rs.4,500/- as maintenance to the respondent herein.

8. While impeaching the veracity of the above order of the Family Court, the learned counsel for the revision petitioner argued that the Family Court erred in holding that the revision petitioner neglected to maintain the respondent herein, after ignoring the fact that the respondent is a lady having extra marital relationship and she had left the matrimonial home on her own volition. Further, the revision petitioner was constrained to marry another person due to the inimical and dishonest behaviour of the respondent. The Family Court ignored the contentions raised by the revision petitioner that he had only a small job abroad and he could not pay Rs.4,500/- as maintenance.

9. I have perused the impugned order. In the petition, the respondent raised a contention that she had no means of maintenance and the revision petitioner, who had been employed abroad and had been working in a supermarket, would get Rs.90,000/-per month and, therefore, he could pay Rs.7,500/-as monthly maintenance to her.

10. In the objection, the revision petitioner would contend that since the revision petitioner paid Rs.25,000/-and given her gold ornaments at the time of offering talaq, the respondent herein could not claim maintenance. The Family Court found that the revision petitioner miserably failed to prove that there was talaq/divorce, though he had produced 13 documents in support of the said contention. The Family Court also found that the revision petitioner failed to prove that he had returned Rs.25,000/-and 5 sovereigns of gold ornaments. Further, the Family Court found that an agreement in this regard relied on by the revision petitioner also was not produced before the court. On perusal of the materials available, the said finding appears to be convincing. Further no evidence available in this matter to hold that the respondent has been living separately without any justification, as the evidence would suggest that she has been living separately along with her brothers, since she could not live along with the revision petit