An agreement waiving the right to maintenance under Section 125 Cr.P.C. is against public policy and thus void.

JUDGMENT

[OP(Crl.) Nos.665/2022, 580/2022]

Dated this the 21st day of February, 2023 These Original petitions are filed challenging the interim order of maintenance passed by the Family Court, Ernakulam in M.C. No. 69 of 2021. The husband is assailing the order on the ground that the direction to pay monthly maintenance at the rate of Rs.7,000/- was issued without considering the fact that the wife was gainfully employed and had sufficient income to maintain herself. On the other hand, the wife is aggrieved by the quantum being fixed at Rs.7,000/-, as against her claim for monthly maintenance allowance at the rate of Rs.50,000/-.

2. Apart from the rival contentions urged on the financial capacity of the husband and wife, learned counsel for the husband relied on agreement dated 16.09.2019 entered between the husband and wife, as per the terms and conditions of which the husband returned the gold belonging to the wife and paid an amount of Rs.6,00,000/-. The husband also agreed to pay an additional amount of Rs.1,00,000/- and 4 sovereigns of gold. By virtue of the agreement, custody of the two children born in the wedlock was given to the husband. As per clause 8, the wife relinquished all other claims against the husband and both parties agreed that they will have no further claim for gold, money or any compensation or other claim civil or criminal or under any other head against each other. It is contended that the maintenance case filed after receiving the amounts as per the terms of the agreement, ought to have been rejected outright.

3. In reply to the above contention, learned counsel for the wife submitted that the mental and physical torture meted out to his client by the husband and his parents had caused so much pain and suffering to her that she slipped into depression and developed other ailments also. The agreement was executed under threat and coercion during the period when the wife was undergoing depression. The agreement is loaded in favour of the husband and is vitiated by coercion and fraud. Relying on the Division bench decision inRajesh R. Nair v. Meera Babu ( 2013 (1) KLT 899 ), it is argued that an agreement by which a wife waives her right guaranteed under Section 125 Cr.P.C. will only be an agreement against public policy and therefore void.

4. The challenge in these original petitions being against an interim order, any finding by this Court on the factual contentions raised would have an impact on the final decision in the maintenance case and should therefore be avoided. Hence, I refuse to venture into the contentions regarding the financial capacity of the husband ad the wife and leave it for the Family Court to take a decision based on the evidence tendered. As regards the contention based on the agreement, I do not find any specific clause preventing the wife from claiming maintenance allowance. Even if the terms and conditions of the agreement is understood to prevent the wife from claiming maintenance, such term is void, being against public policy.

For the aforementioned reasons, the Original petitions are dismissed without entering into the merits and granting liberty to the parties to let in evidence and raise all contentions before the Family Court. The Family Court shall endeavour to dispose of the maintenance case at the earliest. Till a final decision is taken in the maintenance case, the husband shall pay maintenance to the wife as directed in the impugned order.

Sd/-

V.G.ARUN JUDGE

sb

APPENDIX OF OP(CRL.) 580/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITION IN M.C. NO. 69 OF

2021 DATED 15.12.2021 FILED BEFORE THE FAMILY COURT, ERNAKULAM Exhibit P2 A TRUE COPY OF THE PETITION IN M.P. NO. 811 OF 2021 IN M.C. NO. 69 OF 2021 DATED

15.12.2021 FILED BEFORE THE FAMILY COURT, ERNAKULAM Exhibit P3 TRUE COPY OF OBJECTION DATED 2.7.2022 IN M.C.

NO. 69/2021 FILED BY THE PETITIONER HEREIN Exhibit P4 CERTIFIED COPY OF ORDER DATED 6.8.2022 IN M.P. NO. 811/2021 IN M.C. NO. 69 OF 2021 OF THE FAMILY CO