1. Heard on admission.

2. This revision is directed against the order dated 18.2.2003 passed in Criminal Case No. 77/2002 by the Presiding Officer, Family Court, Rewa, whereby she has directed the applicant to pay maintenance allowance at the rate of Rs. 400/- per month each to his minor children non-applicants No. 1 to 4.

3. The applicant was married to Mumtaz. He has now divorced her. Non-applicant Nos. 1 to 4 are their minor children. Mumtaz and non-applicant Nos. 1 to 4 filed an application for grant of maintenance allowance under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The trial Court has held that the applicant despite having sufficient means is not maintaining the non-applicant Nos. 1 to 4 without any justified cause. The trial Court has also held that the non-applicant No. 1 to 4 are unable to maintain themselves. The trial Court has directed the applicant to pay maintenance allowance at the rate of Rs. 400/- per month each in favour of non-applicant Nos. 1 to 4 and rejected the claim of Mumtaz for maintenance allowance on the ground that she, having been divorced, is not entitled .for maintenance allowance under section 125 of the Code. Mumtaz has not come up in revision.

4. The applicant is an able-bodied person. The non-applicant Nos. 1 to 4 are admittedly his minor children who are unable to maintain themselves. The applicant is, therefore, under a statutory obligation to give maintenance allowance to them as directed by the trial Court. The trial Court has rightly held that Mumtaz could not have agreed vide Ex. D1 with the applicant discharging him of his liability to give maintenance allowance to the non-applicant No. I to 4 in the event of divorce. Maintenance is a statutory right which the legislature has framed irrespective of the nationality, caste or creed of the parties. The statutory liability imposed by S. 125 is therefore, distinct from the liability under any other law. Thus, where it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the maintenance.

This right being a right to survival or livelihood essentially survives and lives every moment of life of the person entitled to be maintained. The use of the words "and to pay the sum to such person as the Magistrate may from time to time direct", in the last part of sub-section (1) of S. 125 (earlier to proviso to the same), clearly indicates this. Therefore, this statutory right of children to maintenance cannot be bartered, done away with or negatived by the father by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Therefore, giving effect to an agreement which overrides this provision of law, that is, S. 125, Code of Criminal Procedure, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and void but legal agreement. In the form case, the legislature penalizes it or prohibits it, in the later case, it merely refuses to give effect to it. This is what exactly S. 23 of the Contract Ac provides for. Thus the agreement whereby this statutory right of children to maintenance was relinquished may not per se be illegal but it cannot b given effect to being a negation of the statutory right as provided for in this section and being opposed to public policy. Clauses (b) and (c) of S. 127 (3) do not annihilate or defeat the right of the children to future maintenance.

5. The affidavit, Ex.D1, therefore, does not disentitle the non-applicant Nos. 1 and 2 of their legitimate claim of maintenance allowance from the applicant.

6. The impugned order does not suffer from any illegality nor