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The Bombay High Court has given a landmark judgment as it has upholded the sanctitity of the provisions of Right to maintenance under S.125 of CrPC even if the wife waives off her right to maintenance.
Justice MS Sonakhas played the most significant role by considering the writ petition filed by one RamchandKamble. Kamble had challenged two orders, i.e. the orders given by the Judicial Magistrate, First Class and Additional Sessions Judge respectively. This catered to the fact that if a wife claims maintenance under the statutory provisions of S.125 of CrPC after an agreement with husband that her maintenance rights would be waived off, then she won’t be able to take the maintenance under S.125 of CrPC ,thus, this order got challenged.
The facts suggest that Kamble’s advocate Sandeep Koregave submitted that a false allegation was made by respondet wife that the consent to waive off her maintenance was obtained by fraud. The appeal made by her was dismissed as not maintainable in view of the provisions in Section 96(3) of the Civil Procedure Code. In lieu of the same a writ petition was filed which was also dismissed by the High Court. It was argued by Koregave that the application which caters to the statutory provisons of S. 125, CrPC should be dismissed or stayed till the magnitude of the consent decree is proved.
NageshChavan who had appeared on behalf of respondent wife drew the attention to the fact that S.125 CrPC has a social sanctity as the provision has been made to support and render help to the women and protecting them from vagrancy. Chavanhad reamarkably quoted the examples of the following landmark judgements –
In Shahnaz Bano d/o Aslam Khan (Smt.) vs. Babbu Khan s/o NanhekhanPathan& Another, judge of Bombay High Court held that the provisionscovered by Clause (c) of Section 127(3) of CrPC, which mentions that if the wife has surrendered her rights voluntarily, and has waived off her right to maintenance but has turned destitute; she would be able to claim maintenance underS.125 of CrPC because of its social sanctity. In the case of Rameshwar s/o Sandu Kachkure vs. State of Maharashtra & Anr, another Single Judge Court has given a similar viewpoint.In Tejaswini d/o Anandrao Tayade And Anr. vs. Chandrakant Kisanrao Shirsat And Anr, another Single Judge refused to reject an application under Section 125 CrPC on the grounds of relinquishing of customary deed. In Mahesh Chandra Dwivedi vs. State of UP & Anr similar decision was laid down and also in Rajesh R. Nair vs. Meera Babu, a division Bench of Kerala High Court had held that the agreement by which wife would waive off her right to maintenance would be a void agreement as against public policy.
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