Case Note & Summary
The case involves a criminal revision application filed by the husband, Vilas Bhagaji Aware, against the judgment of the Sessions Judge, Buldana, which affirmed the trial Magistrate's order awarding maintenance of Rs. 300 per month to his wife, Durgabai Dnyanba Dodke, under Section 125 of the Code of Criminal Procedure, 1973. The husband argued that the parties had executed a registered Farkatnama (divorce deed) wherein the wife agreed to forgo her right to claim maintenance. He contended that the wife was estopped from claiming maintenance and that he had remarried and had three children to support. The wife did not appear before the High Court. The court examined the Farkatnama (Exh.18) and found that it only evidenced a divorce between the parties. The court held that the validity of the divorce could not be determined in summary proceedings under Section 125 CrPC. The court further held that the wife's agreement to forgo maintenance did not create an estoppel against her statutory right to claim maintenance under Section 125 CrPC, as there can be no estoppel against the law. The court noted that the courts below had already found that the husband had refused and neglected to maintain the wife, satisfying the ingredients of Section 125 CrPC. Consequently, the High Court dismissed the revision application, upholding the maintenance award.
Headnote
A) Criminal Procedure - Maintenance - Section 125 CrPC - Waiver by Agreement - A wife's agreement in a Farkatnama to forgo maintenance does not bar her claim under Section 125 CrPC, as there can be no estoppel against statute. The court must only examine whether ingredients of Section 125 CrPC (refusal/neglect) are satisfied. (Paras 1-4) B) Criminal Procedure - Summary Proceedings - Validity of Divorce - Section 125 CrPC - The validity of a divorce cannot be decided in summary proceedings under Section 125 CrPC. The factum of divorce does not preclude maintenance claim if neglect is proved. (Para 4)
Issue of Consideration
Whether a wife who has executed a Farkatnama (divorce deed) agreeing to forgo maintenance is estopped from claiming maintenance under Section 125 CrPC
Final Decision
The High Court dismissed the criminal revision application, upholding the order of maintenance of Rs. 300 per month awarded to the wife under Section 125 CrPC.
Law Points
- Maintenance under Section 125 CrPC is a statutory right
- cannot be waived by private agreement
- estoppel does not apply against statute
- validity of divorce not determinable in summary proceedings
