Agreement to Waive Right to Maintenance by Wife is Unenforceable- Bombay HC

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December 28, 2018

In an interesting judgment, the Bombay High Court has ruled that an agreement wherein the wife waives her right to claim maintenance under section 125 of Code of Criminal Procedure is opposed to Public Policy and hence in unenforceable.

Case name: Ramchandra Laxman Kamble  vs. Shobha Ramchandra Kamble And Anr.

The Petitioner husband in the case challenged order passed by the Lower Court has set aside Petitioner’s contention that Respondent’s application seeking maintenance under Section 125 of CrPC shall be dismissed as the Respondent had specifically waived her right to claim for any maintenance .

Bench’s Verdict

The High Court of Bombay in view of precedents dismissed the Petitioner’s plea and upheld the Lower Court’s decision. The High Court observed as under:

  • That the consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super­added 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.

Also read What is Public Policy?

  • 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.
  • 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 CrPC.

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