By Shamindra Kadian and Devender Singh Aswal
The judgment of the Supreme Court in Ganesh vs Sudhirkumar Srivastava and Ors (2019) continues to cause apprehension about the right of a divorced woman to get alimony. Justices Indu Malhotra and UU Lalit held that it “was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter (a minor) insofar as maintenance and other issues are concerned”. Many jurists strongly feel that the very proposition that it would be acceptable for a woman to waive the right to her own maintenance goes against settled law and public policy.
It would be pertinent to mention that the parties to the case were married as per Hindu rites and had a minor daughter born out of the wedlock. Due to irreconcilable differences, they consented for a divorce. The divorce agreement included, among other things, withdrawal by the wife of criminal proceedings against the husband and the relinquishing of her right to alimony and maintenance as well as the right to her daughter’s maintenance.
A petition was filed for divorce under the Hindu Marriage Act, 1955, in the family court in Aurangabad. While the case was pending, both the parties were sent to a counsellor but the attempt at conciliation failed. As there was no possibility of co-habitation, the Court passed the order of divorce in mutually agreed terms—namely that the wife had released the right of monthly maintenance, permanent alimony and stridhan, and also released the right of monthly maintenance to the daughter.
After the divorce decree was passed, the husband filed a contempt petition in the Bombay High Court as the criminal proceedings against him by the ex-wife were not withdrawn as per the mutually agreed terms. The petition was dismissed by the High Court and the husband appealed to the Supreme Court.
The apex court observed that if the parties had arrived at a settlement and decided to withdraw the cases filed by each other, the compromise ought to be effectuated. The Supreme Court quashed the criminal proceedings, but expressed reservation about relinquishment of the right of the minor child to get maintenance from the father even though the mother had agreed to this demand. The Court observed that while it was open to the wife to give up any claim of maintenance or permanent alimony or stridhan, she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned. Exercising the power under Article 142, the apex court set aside the clause of the consent terms.
What is a matter of societal concern is that the approval given by the apex court to the voluntary relinquishment of the statutory right to maintenance by a woman is in conflict with public policy and judicial principles.
In Rajesh R. Nair vs Meera Babu (2013), a division bench of the Kerala High Court held that an agreement by which the wife waived her right to claim maintenance would be void as it was against public policy. Such an agreement would amount to ousting of the jurisdiction of the magistrate and the family court to entertain maintenance claims, which cannot be permitted by law.
The Bombay High Court in Ramchandra Laxman Kamble vs Shobha Ramchandra Kamble and Anr (2016), while dealing with the right to maintenance under Section 125 of the Criminal Procedure Code (CrPC) had held that even if the wife gave up or relinquished her right to claim maintenance, at any time in the future, it was opposed to public policy and therefore such an agreement, even if voluntarily entered into, would not be enforceable.
Likewise, the Punjab and Haryana High Court in the matter of Ranjit Kaur vs Pavittar Singh (1992), held that the right of maintenance is a statutory right which the legislature had framed obliterating the cast or creed of the parties, and, therefore, was distinct from liability under any other law. If it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the statutory protection of maintenance. Therefore, “the statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision”. Obviously, an agreement which over-rides a statutory provision negates public policy and thwarts legislative intent.
The right to maintenance, a substantive measure of social security, is enshrined in various statutes. Section 125 of the CrPC provides that “if any person, having sufficient means, neglects or refuses to maintain….his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife”.
Further, “if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing. ‘Wife’ includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried”. More so, the CrPC is based on an unexceptionable principle and makes no distinction between caste, creed or religion.
Under the Hindu Marriage Act, 1955, an order for maintenance, interim or temporary, may be made by the Court under Section 24 and for monthly maintenance and alimony under Section 25. Under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife shall be entitled to be maintained by her husband during her life time. Under Section 19 of the Act, the responsibility for maintenance of the widowed wife rests upon her father-in-law.
Notably, a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance subject to laid down conditions under the law. Under Section 20 of the Protection of Women from the Domestic Violence Act, 2005, the magistrate has the power to grant fair, adequate and reasonable maintenance or monetary relief to not just the wife but every woman who has been in a relationship in the nature of marriage and has been the victim of domestic violence. Under the Parsi Marriage Act,1869, and the Special Marriage Act,1954, a wife can seek maintenance from the husband on specified grounds.
The Muslim Women (Protection of Rights on Divorce) Act, 1986, provides that the Muslim woman be provided with fair and reasonable maintenance within the “iddat” period by her former husband. But in the famous Shahnaz Bano vs Babbu Khan (1985), the Supreme Court’s path-breaking judgment held that even in a case where the wife has surrendered her rights voluntarily, and if after waiving her right to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under Section 125 of the CrPC. Later, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act,1986, which diluted the Supreme Court judgment. But subsequent judgments of the Court make it clear that the civil law of the land would prevail over all personal laws.
It’s abundantly clear from various judgments and the provisions of personal laws and the overarching CrPC that there can be no relinquishment of the statutory right to maintenance. A woman may choose not to take alimony or maintenance from her husband but there can be no relinquishment of the statutory right to maintenance in the future. If the parties to a divorce by mutual consent incorporate a clause in which the woman waives her right to maintenance, the waiver will not be enforceable.
However, in Gian Singh vs State of Punjab (2012), the apex court observed that in disputes of a purely private nature, and not heinous, the court should ordinarily accept the terms of the compromise, but the express provision of law which gives a person anything cannot be taken away. The right to maintenance, being a statutory right, irrespective of compromise between the parties, can be agitated at a subsequent stage, subject to fulfillment of specified grounds enshrined in the law. The law of maintenance grounded on public policy is a bulwark of social security and justice and courts exist for advancement of justice.
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—Shamindra Kadian is a Delhi-based advocate and Devendra Singh Aswal is ex Addl Secretary, Lok Sabha and a legal scholar. The views expressed are personal.