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Muhammed Siyad v/s Jasna

    RPFC. No. 457 of 2016

    Decided On, 28 January 2021

    At, High Court of Kerala

    By, THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    For the Petitioner: Dr. S. Gopakumaran Nair, Sr. Advocate, Sooraj T. Elenjickal, K. Arjun Venugopal, V.A. Haritha, Sidharth B. Prasad, R. Nandagopal, Gayathri Muraleedharan, Advocates. For the Respondent: A.S. Shammy Raj, Advocate.



Judgment Text

1. Order passed by Family Court, Nedumangad on 30.07.2016 in M.C.No.90 of 2016 is under challenge in the revision on hand.

2. For the sake of clarity, the parties to this revision will hereinafter be referred to as the respondent and the petitioner in accordance with their status in the M.C. before the Family Court.

M.C was filed under Section 125 of the Code of Criminal Procedure (for short 'Cr.P.C.') by the petitioner, who is the legally wedded wife of the respondent as per marriage solemnized on 29.09.2013 at Pothencode. She has been deserted and neglected to be maintained by the respondent from 12.09.2015 onwards. According to the petitioner, more dowry was demanded by the respondent and also threatened stating that she would be divorced if the demand for additional dowry is not met with. The respondent was alleged as having a salary of Rs.30,000/- from his job as a Civil Police Officer and monthly earning of Rs.1,00,000/- from the poultry and dairy farms conducted by him. Rs.15,000/- was claimed as monthly maintenance.

3. In the objection filed by the respondent, the marriage and the status of the petitioner as wife was admitted. The claim for maintenance was alleged as not maintainable for the reason that it was barred by estoppel. According to him, the adamant attitude of the petitioner and inability of the respondent on account of that, to proceed with the marital relationship, settlement talks at the intervention of Jama Ath authorities and mediators failed and ultimately the marital relationship was terminated by pronouncing Talaq on 22.01.2016. Due intimation of Talaq was also given to the petitioner. Thereafter an agreement was allegedly entered between the petitioner and the respondent whereby all financial claims including claim for maintenance were settled on 22.01.2016. Therefore, the petitioner is estopped from claiming monthly maintenance from the respondent under Section 125 Cr.P.C. It was also contended that the petitioner after completing her D Pharm, is working in a medical store at Pothencode Junction and earning Rs.7,500/- monthly as salary. According to him, the claim of the petitioner for monthly maintenance is defeated for her ability to maintain herself. He seeks for dismissal of the petition.

4. In the M.C., evidence was adduced by both parties. On the petitioner's side, PW1 and PW2 were examined and on the side of the respondent, CPW1 to CPW3 were examined. Exts.R1 to R3 were also marked.

5. The rival contentions were evaluated in the light of the evidence adduced by the parties and the Family Court has found ultimately that the claim of the petitioner is meritorious. Accordingly, petition was allowed in part and the respondent was directed to pay monthly maintenance at the rate of Rs.10,000/- to the petitioner from the date of the petition. Aggrieved by the above order and seeking to set it aside, revision on hand is filed.

6. The argument of the learned counsel for the respondent was that after sometime of the marriage, the marital relationship of the parties has been irretrievably broken and therefore the respondent had pronounced Talaq on 22.01.2016 with the consent of Jama Ath authorities and it was intimated to her. Consequent to that an agreement was also executed among the respondent and the petitioner, as Ext.R1. According to him, the entire financial claims including maintenance were settled and the terms and conditions were incorporated in Ext.R1. It was contended that the liabilities arising out of the matrimonial relationship, having been fully discharged by the respondent, the petitioner is not entitled to get monthly maintenance from the respondent and ought not to have raised a claim under Sub-section (1) of Section 125 Cr.P.C.

7. It is further contended by the learned counsel that though Ext.R1 was alleged as an agreement not properly executed by the petitioner, the execution was established as proper by the respondent by examining attestors thereto, before the Family Court, as CPW2 and CPW3. The petitioner when confronted with Ext.R1 during cross examination has stated that the signature found therein was affixed by her but, clarified that it was put only in blank papers. The respondent got it clarified through cross examination of CPW2 and CPW3 that the signature in Ext.R1 was put by the petitioner after reading the entire contents therein. The learned counsel has also relied on Bipin v. Meera D.S. and Others [2016 (5) KHC 367] to contend that Ext.R1 being an agreement executed after settling all claims of the parties mutually and satisfactorily, the petitioner is estopped from claiming monthly maintenance from the respondent.

8. The learned counsel for the respondent has cited Shyam Telelink Ltd. now Sistema Shyam Teleservices Ltd. v. Union of India [2010 KHC 4747] to contend that a party cannot accept what is favourable to him and reject what is unfavourable to him at the very same time.

9. The learned counsel for the petitioner has contended that the right to claim maintenance under Section 125 Cr.P.C being a right conferred by the Code, it cannot be waived or relinquished by the party entitled to it by executing an agreement of the nature as Ext.R1. According to him, an agreement by which the right to claim monthly maintenance guaranteed under Section 125 Cr.P.C was allegedly waived being opposed to public policy, is void. According to him, the Family Court has correctly found that the petitioner is not estopped from claiming maintenance by waiving her right under Ext.R1 agreement. Accordingly the impugned order is sought to be maintained.

10. In the backdrop of the arguments advanced as above, the evidence available on record was scrutinised. It is true that after termination of the martial relationship, the parties have executed an agreement and all disputes have been settled, based on some terms and conditions. Though execution of Ext.R1 was denied by the petitioner, during the course of examination, the signature in Ext.R1 was admitted as affixed by her. Petitioner had taken the plea of ignorance of the contents of Ext.R1. But the respondent by examining CPW2 and CPW3, made the court convince that the signature in Ext.R1 was affixed by the petitioner voluntarily, knowingly of its contents. The evidence tendered by CPW2 and CPW3 were found by the Family Court as reliable and held on its basis that Ext.R1 was executed by the petitioner and the respondent, mutually and voluntarily. It is found that a term incorporated in Ext.R1 has the impact of relinquishing a claim for future monthly maintenance under Section 125 Cr.P.C. The right conferred under Section 125 Cr.P.C is a statutory right and it enables a wife, who is unable to maintain herself to raise a claim for monthly maintenance from her husband who played a major role in making her a destitute by his desertion and neglect. The right was recognised by law and accordingly incorporated in the Cr.P.C by the Parliament. When the wife was successful in establishing that her husband has sufficient means, that he neglects or refuses to maintain her and that she is unable to maintain herself, a claim preferred by her under Section 125 Cr.P.C. cannot be dismissed by the Court. Only when the husband establishes after passing of an order granting monthly maintenance that the wife is living in adultery with a man, or that without any sufficient reason, she refuses to live with him or that she is living separately by mutual consent, she would be disentitled to receive the monthly maintenance ordered in her favour and the order passed will be cancelled by the Court.

11. The right envisaged under Section 125 Cr.P.C being a statutory right, it cannot be waived or relinquished by the party entitled for that or made to waive or relinquish by a party obliged to pay that, by executing an agreement. Waiving of a statutory right is opposed to public policy and under Section 23 of the Indian Contract Act, 1872 an agreement having that impact is void in the eye of law. Though Ext.R1 was established as properly executed by the petitioner, to the extent it incorporate a term, which would have the consequence of waiving or relinquishing the statutory entitlement for monthly maintenance is opp

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osed to public policy. Therefore, agreement to that extent is void and will not act as estoppel. 12. In the impugned order, the Family Court has rightly found that Ext.R1 to the extent it relinquishes the right of a wife to get monthly maintenance is opposed to public policy and is void and it does not have the impact of estoppel. The Family Court has also found that petitioner is entitled to get monthly maintenance from the respondent under Section 125 Cr.P.C. Accordingly, the application seeking monthly maintenance was allowed by the Family Court and Rs.10,000/-, was fixed as monthly maintenance payable to her. A direction was also issued to the respondent to pay the monthly maintenance at the rate fixed to the petitioner, from the date of the petition. The Family Court is perfectly justified in doing so. The impugned order is only to sustain. R.P.(F.C) fails for the reason and is dismissed.
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