KASTOORI DEVI Vs. CHHEDA LAL SHARMA

JUDGEMENT

(1.) THIS revision has arisen out of a case under Section 488 Cr.P.C. (old). The applicant (Smt. Kishori Devi) is the legally wedded wife of the opposite-party (Chheda Lal Sharma). They were married in the year 1932. They lived a happy married life for some time, but this marital bliss was not destined to last for long. Differences arose between them and eventually the opposite-party deserted the applicant. The applicant, therefore, filed an application under Section 488 Cr.P.C. in the Court of S.D.M. Bulandshahr for maintenance. The op posite-party contested that application, but eventually a compromise was arrived at between the parties in the year 1956. According to the compromise, the appli cant was to get Rs. 18/- per month by way of maintenance from the opposite party. It was also incorporated in that compromise that this amount will not be enhanced at any time in future. The opposite-party continued to pay Rs. 18/-per month by way of maintenance to the applicant. On 11-9-'74 the applicant gave an application in the Court of S.D. M. Bulandshahr to raise her amount of maintenance on the ground that all things of life had become very costly and it was humanly impossible for her to maintain herself in a meagre sum of Rs. 18/- per month. She prayed that her amount of maintenance be fixed at Rs. 200/- per month. The opposite-party contested the ap plication filed by the applicant. He al leged that in terms of the compromise arrived at between the parties the am ount of maintenance could not be en hanced and as such her application was liable to be thrown out. He also alleged that the amount of Rs. 200/- per month claimed by the applicant by way of maintenance was very exessive as the pay which he was getting was Rs. 450/-per month only. The learned Magistrate held that the compromise arrived at between the par ties in the year 1956 could not come in the way of the applicant to get her maintenance allowance raised by the Court. He also held that the opposite-party was possessed of sufficient means and he, therefore, raised the maintenan ce allowance to Rs. 150/- per month. The opposite-party went up in revision against the order passed by the Magis trate. The revisional Court held that the applicant was bound by the compromise arrived at in the year 1956 and, there fore, it was not open to her to claim en hancement of her maintenance allowan ce. Accordingly, he allowed the revision and set aside the order passed by the Magistrate enhancing the maintenance allowance from Rs. 18/- per month to Rs. 150/- per month. Aggrieved, the applicant has now come up in revision to this Court. There are certain facts in this case about which there is no dispute. It is common ground that in the year 1956 the applicant had filed a case against the oppsite-party under Section 488 Cr. P. C. and in that case a compromise was arriv ed at between them. That compromise is dated 14-8-'56 and a copy of it is on record. The compromise in the main stipulated two things : one was that the applicant will get Rs. 18/- per month from the opposite-party as maintenance allowance and the other was that it will not be open to the applicant to get this amount of maintenance enhanced in future. Now the question is whether the applicant is bound by this compromise or not. According to the learned coun sel for the applicant. She was bound by the first part of the compromise fixing Rs. 18/-per month by way of mainten ance, but she was not bound by the second part placing a clog on her right to get the amount of maintenance en hanced in future. THIS contention of the learned counsel is founded on the view that the bar placed on the right of the applicant to get her maintenance allowance enhanced would defeat the provisions of law regarding maintenance and as such would render the agreement with respect to the bar unlawful and void. I am afraid I cannot persuade my self to agree with this contention of the learned counsel. Section 10 of the Con tract Act describes what agreements are contracts. "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a law ful object, and are not hereby expres sly declared to be void." According to Section 11 of the Con tract Act, every person who is not a mi nor or lunatic or otherwise disqualified, is competent to contract. In this case it is not in dispute that the parties had entered into a compromise of their own accord and were persons who were com petent to contract. Sections 24 to 30 of the Contract Act deal with void agreements. According to Section 24, agreements are void if consideration and objects are unlawful in part. Section 25 deals with an agree ment without consideration. Section 26 relates to an agreement in restraint of marriage. Section 27 deals with an agreement in restraint of trade. Section 28 governs agreements in restraint of legal proceedings. Under Section 29, agreements are void for uncertainty. According to Section 30, agreements by way of wager are void. Sections 25 to 30 of the Contract Act have addmittedly no application to the present case. Section 23 of the Contract Act des cribes what considerations and objects are lawful and which are not lawful. Section 23 of the Act states :- "The consideration or object of an agreement is lawful, unless : - it is forbidden by law ; or is of such a nature that, if permit ted, it would defeat the provisions of any law ; or is fraudulent; or involves or implies injury to the person or property of another ; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consi deration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.'' Section 23 has got five clauses. Clause (i) deals with transactions forbidden by law. It has no application to the present case. Clause (iii) deals with fraudulent transactions. No question of fraud aris es in the present case. The transaction under consideration does not involve in jury to the person or property of another person. So clause (iv) also does not apply. The main question for consider ation in the present case is whether the second part of the agreement before us is hit by clauses (ii) and (v) of Section 23 of the Contract Act. According to the learned counsel for the applicant it is hit by these clauses and must, therefore, be struck down. The submission of the learned counsel is that in case this part of the agreement is allowed to stand, it will defeat the provisions of Section 489 Cr.P.C. and will also not be consistent with public policy. In support of her view she drew my attention to certain rulings. The first ruling relied upon by her was Moti Chand v. Ikram Ullah Khan(1). It was a case dealing with Agra Tenancy Act. The policy of the Agra Tenancy Act was to Secure and preserve to a proprietor whose proprie tary right in a Mahal or any portion of it tranferred otherwise than by gift or exchange between co-sharers in the Mahal, a right of occupancy in his sir lands and in lands continuously cultivat ed by him for 12 years at the date of the transfer, irrespective of whether he wish ed it to be secured and preserved to him or not and notwithstanding any agree ment to the contrary between him and the transferee. THIS policy is not to be defeated by any ingenious devices, arran gements or agreement of relinguishment by a vendor of his sir lands. All such devices, arrangements and agreements in contravention of the policy were held to be illegal and void by the Privy Council. THIS ruling has no application to the facts of a present case, because the se cond part of the agreement before us cannot be said to be in contravention of any law concerning maintenance. The next case relied upon by the learned counsel for the applicant was Hirabai Bharucha v. Pirojeshah Bharucha(2). It was a case under Parsi Mar riage and Divorce Act. The petitioner of the case had filed a petition for disso lution of her marriage and in that case a compromise was arrived at between the wife and the husband. On the basis of that compromise a decree for divorce was passed. One of the terms of the compromise was that the petitioner wife would not claim alimony at any time in future. THIS stipulation was found to be void as it was in contravention of the provisions contained in Section 40 of Parsi Marriage and Divorce Act. Be sides such a stipulation was also held to be against public policy. In the instant case, the second part of the agreement is not in contravention of any statute. It cannot also be said to be against public policy because the applicant is getting maintenance from the opposite-party, though not at a rate satisfactory to her. Next my attention was drawn to Madan Mohan v. Ram Chander Rao(3), and Smt. Mukul Dutta Gupta and others v. Indian Airlines Corporation (4). These ruling lay down that it is not open to the parties to contract themselves out of statute. Here none of the parties have contracted themselves out of any statute. There is no statute which prohibits hus band and wife entering into an agree ment to the effect that maintenance allowance once fixed will not be en hanced. From the discussion made above it is clear that none of the rulings relied upon by the learned counsel for the applicant is applicable to the facts of the present case. The term "law" in clause (ii) of section 23 Contract Act, in my opinion, should be understood in a somewhat limited sense. It covers statute law. If any agreement is arrived at in contravention of a statute, that agreement would be void and not en forceable under law. The question is whether the second part of the agree ment before us contravenes the provisions of section 489 of the Code of Criminal Procedure which is undoubt edly a statute. All that section 489 provides is that on proof of a change in the circumstances of any person receiving maintenance allowance under section 488, the Magistrate may make such alteration in the allowance as he thinks fit. The provision contained in this section, to my mind, is an empower ing one, and not a mandatory one. It just gives a power to the aggrieved spouse to move the Magistrate for making alteration in the allowance when there is a change of circumstances. The aggrieved spouse may or may not move the Court even when the change has taken place. There is no element of compulsion placed on any of the parties in this regard. Further, one will notice that it nowhere prohibits husband and wife entering in to an agreement to the effect that maintenance allowance once fixed will not be altered. Therefore, if husband and wife enter into an agree ment and make a stipulation in that agreement that maintenance allowance once fixed will not be altered, that agreement cannot be said to be in con travention of the provisions of section 489 Cr. P. C. Therefore, as it is, I am certain in my mind that the second part of the agreement in the present case in no way defeats the provisions of section 489 Cr. P. C. It is a valid agreement and the parties are bound by it. The learned counsel for the appli cant next contended that placing a bar on the right of the wife to get her maintenance allowance enhanced was contrary to public policy and the Court, therefore, should frown upon that bar. What is "public policy" is neither de fined, nor formulated anywhere. One has, therefore, to be very cautious in applying its doctrine. It has to be invoked only in those cases in which the harm to the public is in contestable. In the instant case, I do not think any question of public policy is involved at all. Had the agreement arrived at between the parties carried a condition that the applicant would not be entitled to get any maintenance from the oppo site-party, then in that event, one could have said that agreement was opposed to public policy because the wife would have become a burden on the society and that was certainly a matter of public concern. Here the applicant has been given a maintenance allowance of Rs. 18/- per month. THIS amount had been arrived at by the parties freely and after keeping in view all the facts and circumstances existing at that time. They must have also looked into the future when it was agreed between them that this amount would not be enhanced at any time. That being so, the parties are bound by what they had agreed and the amount of Rs. 18 per month by way of maintenance allow ance is not open to enhancement. Thus, from a perusal of what I have stated above, it is clear that the applica tion made by the applicant for enhance ment of her maintenance allowance in the teeth of the agreement arrived at between the parties was not maintain able. The lower revisional Court, there fore, rightly dismissed that application. In my opinion, this revision is without substance and must, therefore, fail. In the result, I find no force in this revision and dismiss it accordingly.