VINITA DEVANGAN Vs. RAKESH KUMAR DEVANGAN

JUDGEMENT

(1.) THIS criminal revision is directed against the order dated 20-8-2007 passed in Case No. 75/05 by the 2nd Additional Principal Judge, Family Court, Raipur, whereby the application under Section 125 of the Code of Criminal Procedure for grant of maintenance filed by the Petitioner herein was dismissed on the ground that the Petitioner had income from a Boutique and was thus possessed of means of earning livelihood.

(2.) BRIEF facts are that the Petitioner was compelled by her family members to marry the non-applicant on 30-6-2001 even though she was in love with other person. Differences erupted within 3 months of her marriage to the non-applicant. The Petitioner left her matrimonial home and started living with her parents. A document Ex.D-8 was executed by the Petitioner whereby she agreed to give divorce to the non-applicant and also relinquished her right to claim maintenance thereafter. A decree for dissolution of marriage by mutual consent was passed in Civil Suit No. 297-A/2002 by judgment dated 16-6-2003 by the 5th Additional District Judge, Raipur. On 16-12-2003 an application under Section 125 of the Code of Criminal Procedure for grant of maintenance was filed by the Petitioner. On 30-3-2006 the non-applicant/husband was proceeded ex parte. On 1-4-2006 an order was passed by the 2nd Additional Principal Judge, Family Court, Raipur, whereby maintenance of Rs. 900/- was awarded to the Petitioner from the date of order. The ex parte order was set aside in M.J.C. No. 65/2006 on 8-5-2007. Repeated efforts for reconciliation between the parties by the Family Court failed. The Petitioner and the non-applicant adduced evidence by affidavits under Order 18 Rule 4 of the Code of Civil Procedure and were cross-examined. The non-applicant examined Md. Abdul Kaish to substantiate that the Petitioner was earning from the Boutique. By the impugned order, the application under Section 125 of the Code of Criminal Procedure. was dismissed.

(3.) HAVING considered the rival submissions, I have perused the record. I find myself in complete agreement with the view taken in Ranjit Kaur v. Pavittar Singh : 1992 Cri.L.J. 262 (supra) that a stipulation regarding relinquishment of the right to claim maintenance from the husband in an agreement between the two spouses which formed the basis for divorce by mutual consent is opposed to public policy and cannot be enforced or used by the husband as a shield for avoiding payment of maintenance to the divorced wife in a Court of law. I find myself unable to fall in line with the view taken by the Bombay High Court in Shrawmn Sakharam Ubhale v. Sau. Durga Shrawan Ubhale and Ors 1989 Cri.L.J. 211 (supra).