The Bombay High Court in Ramchandra Laxman Kamble vs. Shobha Ramchandra Kamble has observed and held that even when a wife enters into an agreement with her husband waiving off her right to maintenance, her statutory right to maintenance under Section 125 CrPC cannot be bartered, done away with or negatived by the husband even on the basis of an agreement.

The Petition-Husband was challenging the orders 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 on account of the Respondent having  specifically waived her right to claim for any maintenance. The said agreement in question arose from a consent decree filed in the court of Civil Judge Senior Division at Sangli but was contended by the Respondent-Wife that the consent was obtained by fraud. On challenging the decree at the lower court and the same being rejected, the Respondent filed an appeal at the High Court which granted leave to take out appropriate proceedings at the Lower Court to remedy the consent decree. The Counsel for the Petition contended that the application for maintenance under Section 125 needs to be dismissed or stayed until Civil Judge, Senior Division at Sangli, decides whether the consent decree is liable to be recalled or set aside. The Counsel for the Respondent that even though right to claim maintenance was voluntarily given up by the Respondent, that by itself does not bar the Respondent from seeking maintenance, provided the circumstances prescribed in Section 125 of Cr.P.C. stands fulfilled and therefore the present petition ought to be dismissed.

The Bench of Justice MS Sonak dismissed the petition on the basis of various judgments which state that all those agreements are not enforceable in which a wife gives up her right to maintenance as it amounts to violation of public policy.

1. In Shahnaz Bano d/o Aslam Khan (Smt.) vs. Babbu Khan s/o Nanhekhan Pathan & Another 1985 Mh.L.J. 853, The Supreme Court held that even in a case where the wife has surrendered her rights voluntarily, and if after waiving her rights to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under Section 125 of Cr.P.C.
2. In Rameshwar s/o Sandu Kachkure vs. State of Maharashtra & Anr. 2018(4) Mh.L.J.(Cri.), the Supreme Court has held that an agreement, by which the wife relinquishes her right to receive maintenance any time in future, is contrary to public policy and consequently unenforceable.
3. In Tejaswini d/o Anandrao Tayade And Anr. vs. Chandrakant Kisanrao Shirsat And Anr. 2005(3) Mh.L.J. 137, the Supreme Court refused to reject an application under Section 125 Cr.P.C. on the ground that wife in the customary divorce deed and consent deed executed by her relinquished her claim for past and future maintenance.
4. In Rajesh R. Nair vs. Meera Babu 2013 CRI. L.J. 3153, the Kerala High Court has held that an agreement, by which the wife waived her right to claim maintenance, would be a void agreement as against public policy. Such an agreement would amount to ousting of jurisdiction of Magistrate and Family Court to entertain maintenance claim, which cannot be permitted by law. Therefore, the claim for maintenance cannot be rejected on the basis of such agreement of waiver of right to maintenance.

The Bench further referred to the Division bench judgment of the Punjab and Haryana High Court in Ranjit Kaur vs. Pavittar Singh 1992 CRI. L.J. 262 which held that maintenance is a statutory right which has been framed by the legislature irrespective of the nationality, caste or creed and held as follows:

“The statutory liability under Section 125 is, therefore, distinct from the liability under any other law. Therefore, the statutory right of a wife of a maintenance cannot be bartered, done away with or negatived by the husband 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, Section 125 of Cr.P.C. 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……”

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