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BOMBAY HIGH COURT
M.S. Sonak, J.
Ramchandra Laxman Kamble —Petitioner
versus
Shobha Ramchandra Kamble
and Anr. —Respondents
Writ Petition No.3439 of 2016
Decided on 21.12.2018
Held: In the present case, it does appear that a joint pursis was filed by the Petitioner and Respondent No.1 before the lokadalat to dissolve their marriage. In the pursis, there is a line, which states that both parties give up their rights to claim maintenance against one another. Based upon such pursis, Civil Judge, Senior Division at Sangli in Hindu Marriage Petition No.48 of 2009 made a consent decree, in which, even the term about the parties giving up their rights to claim maintenance against each other appears to be recorded.
Admittedly, Respondent No.1 has taken out Miscellaneous Application No.229 of 2012, which is pending before the Civil Judge, Senior Division at Sangli, seeking recall of the consent decree at least to the extent it records that Respondent No.1 is giving up her right to seek maintenance from the Petitioner. It is the case of Respondent No.1 that there was no such agreement between the parties and the line recording the giving up of rights to give maintenance was inserted fraudulently in the joint pursis filed in the lokadalat. However, the fact remains that as yet the consent decree or the term in the consent decree in relation to maintenance stands.
The consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super-added to them. Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.
There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable. The two courts in the present case have basically relied upon such rulings and held that even if it is assumed that the parties had voluntarily agreed to give up their time to claim maintenance from each other, such agreement is opposed to public policy and, therefore, the same is not enforceable, or the same does not bar the maintainability of an application under Section 125 of Cr.P.C. There is no jurisdictional error in the view taken by these two courts so as to warrant interference under Article 227 of the Constitution of India. (Paras 10 to 13)
Result: Petition dismissed.
M.S. Sonak, J.—Heard Mr. Sandeep Koregave for the Petitioner-husband and Mr. Nagesh Chavan for Respondent No.1.
2. The challenge in this petition is to the orders dated 13 October 2011 and 31 January 2013 passed by the Judicial Magistrate, First Class and Additional Sessions Judge rejecting the Petitioner’s contention that the Respondent’s application seeking maintenance under Section 125 of Cr.P.C. be dismissed or be not proceeded with, since, the Respondent had specifically waived her right to claim for any maintenance.
3. Mr. Koregave, learned Counsel for the Petitioner, submits that in lokadalat proceedings, the Petitioner and Respondent No.1 filed a consent pursis, in which they not only agreed to dissolve from marriage, but also agreed not to claim any maintenance from each other. Based upon such pursis, Civil Judge, Senior Division of Sangli made a decree for divorce by incorporating agreement arrived at between the parties in the pursis submitted before the lokadalat.
4. Mr. Koregave points out that the Respondent-wife made false allegations that her consent was obtained by fraud, and on such basis, appealed to the District Court to set aside the consent decree made by Civil Judge, Senior Division at Sangli. Such appeal was dismissed as not maintainable in view of the provisions in Section 96(3) of the Civil Procedure Code. Against such dismissal, the Respondent instituted Writ Petition No.1931 of 2012, which was also dismissed by this Court vide order dated 15 October 2012. However, this Court, granted liberty to the Respondent to take out proceedings before the Civil Judge, Senior Division at Sangli to seek recall of the consent decree.
5. Mr. Koregave submits that he is not sure whether any such proceedings have been taken out by the Respondent. However, he submits that as yet the consent decree stands and has not been set aside. He, therefore, submits that in terms of the agreement recorded in the consent decree, the Respondent, having waived her right to receive maintenance, cannot now maintain an application under Section 125 of Cr.P.C. He submits that Respondent’s application under Section 125 of Cr.P.C. was, therefore, required to be dismissed, or, in any case, stayed until Civil Judge, Senior Division at Sangli decides the issues as to whether the consent decree is liable to be recalled or set aside.
6. Mr. Chavan, learned Counsel for Respondent No.1-wife, submits that a consent decree in the present case, was a result of fraud, and, therefore, the Respondent has already taken out Miscellaneous Application No.229 of 2012 before the Civil Judge, Senior Division at Sangli for recall of the same or at least recall of the term relating to alleged waiver of the right to receive maintenance. Such application has been taken out in pursuance of liberty granted by this Court in its order dated 15 October 2012 passed in Writ Petition No.1931 of 2012.
7. Mr. Chavan submits that irrespective of pending Miscellaneous Application No.229 of 2012, and the so called consent decree, any agreement for waiver to receive maintenance is void, since, it is opposed to public policy. He submits that there can be no agreement in derogation of the provisions of Section 125 of Cr.P.C., since, such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.
8. Mr. Chavan relies upon several decisions to point out that even assuming that right to claim maintenance was voluntarily given up by the wife, that by itself does not bar the wife from seeking maintenance, provided the circumstances prescribed in Section 125 of Cr.P.C. stands fulfilled. For these reasons, Mr. Chavan submits that there is absolutely no error in the impugned orders and this petition may, therefore, be dismissed.
9. Rival contentions now fall for determination.
10. In the present case, it does appear that a joint pursis was filed by the Petitioner and Respondent No.1 before the lokadalat to dissolve their marri
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