MYTHEEN Vs. SAPHIYA

JUDGEMENT

(1.) Parties in these two revisions were once husband and wife. They arc muslims. When their daughter reached the age of two, they decided to dissolve their marriage for reasons good or bad. On 13-6-1983, they brought about a dissolution of their marriage by executing a mutually agreed document (Ext.D1). Thereafter the woman (her name is Saphiya) remained unmarried, but the man (his name is Mytheen) secured another wife in whom he got two more children now. When the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act') came into force, Saphiya wanted to avail herself of the benefits under the Act. So she filed a petition claiming reasonable and fair provision envisaged in S.3 of the Act. Learned Magistrate, by the impugned order, directed Mytheen to pay a sum of Rs.21,000/- as reasonable and fair provision. Mytheen challenges the order in revision. Saphiya also challenges the order as she is aggrieved by the quantum fixed. According to her, the amount of reasonable and fair provision should be far higher than the amount now fixed.

(2.) If Saphiya is to succeed, she has to circumvent the principal impediment sprouted from Ext.D1 agreement as per which she acknowledged receipt of a sum of Rs. 11,000/- from Mytheen and relinquished her right to get future maintenance. There is no dispute that Ext.D1 was executed by both Mytheen and Saphiya. The document contains a recital that Saphiya received Rs.11,000/- from Mytheen in full and final settlement of all claims against him and that she shall not make any further claim against Mytheen either towards maintenance or any other count.

(3.) Learned counsel for Mytheen contended that the terms of the divorce agreement should be respected by both parties and one party cannot be permitted to unilaterally resile therefrom. On the other hand, counsel for Saphiya argued that the terms in Ext.D1 relinquishing the right to maintenance is opposed to public policy and hence that cannot be used, to scuttle the statutory right of divorced woman protected by S.3 of the Act. He relied on the decision of Khader, J. in Damodaran v. Lakshmikutty Amma ( 1979 KLT 543 ). It was held in the said decision that no party can be permitted to contract himself out of a statutory obligation and if permitted it would defeat the legal right statutorily confirmed in Chap.9 of the Code of Criminal Procedure (for short 'the Code').