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Wife can seek maintenance even after agreeing not to claim it: Bombay HC

Even if a woman agrees to waive her right to claim maintenance from her husband, her right to demand it under the Code of Criminal Procedure (CrPC) remains, the Bombay High Court has held.

In a judgement last week, Justice M S Sonak observed that section 125 of the CrPC, which provides for maintenance to wife, was enacted in public interest.

The HC was hearing a petition filed by a resident of Sangli in Maharashtra, challenging a lower court’s order to pay maintenance to his estranged wife under the CrPC.

As per the petition, the couple filed a joint plea before a Lok Adalat in 2012, seeking that their marriage be dissolved. They also signed a ‘consent decree’ giving up their right to claim maintenance from each other.

A year later, the wife initiated proceedings under the Hindu Marriage Act and the CrPC, claiming that the husband had obtained her consent for the decree “fraudulently”, and demanded a monthly maintenance from him.

After the magistrate and the sessions court upheld the wife’s plea, the petitioner moved the HC, arguing that the wife had earlier voluntarily waived her right to maintenance.

Justice Sonak said in the ruling that maintenance under the CrPC is a matter of public policy, and a private consent deed cannot be allowed to override a public policy enacted for the larger good.

“Giving effect to an agreement, which overrides the provision of the law…would amount to not only giving recognition to something that is opposed to public policy but it would also amount to the negation of such policy,” the HC held.

Consent decrees are nothing but private contracts, and if their terms are opposed to the public policy, then such terms are void, the judge said while dismissing the petition.

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