Full Judgment
Pareed Pillay, J.
1. First respondent filed M.C. 27 of 1980 before theJudicial Magistrate of the First Class, Ambalapuzha claiming maintenance forher and her son (second respondent). Maintenance was granted and the petitioner was directed to pay monthly allowance of Rs. 100/- each to respondents 1 and 2. Contention of the petitioner is that on 9-11-1982 the matter wassettled out of Court and the first respondent executed an agreement in favourof the petitioner and a lump sum of Rs. 2,500/- was received by her from him.It is submitted that in view of the agreement whereby all the disputes regardingmaintenance were permanently settled and all legal proceedings closed, first,respondent cannot make any claim for maintenance from the petitioner. Sucha contention was raised when respondents 1 and 2 filed application underS. 128 Cr.P.C. to execute the order of maintenance granted by the Court.
1. Learned Counsel for the petitioner contended that the very fact thatCrl. M.P. 2769 of 1991 was filed under Section 128 Cr.P.C. on 29-6-1991 i.e.approximately 9 years after the date of agreement is by itself sufficient to holdthat the first respondent had voluntarily relinquished all her rights in view ofthe lump sum payment as per the agreement dated 9-11-1982. Learned Counselfor the respondents 1 and 2 pointed out that merely because Crl. M.P. 2769 of1991 was filed long after the agreement it is not possible to come to a conclusion that the right to claim maintenance recognised by the Court below nolonger exists. Counsel pointed out that the maintenance awarded under Section 125will continue to remain in force unless and until it is cancelled or varied and solong as that has not been done petitioner cannot advance a case on thestrength of the agreement entered into between the petitioner and the firstrespondent particularly in view of the fact that it is opposed to public policy.There is considerable force in the above contention.
2. As the statutory obligation is here on the part of the petitioner tomaintain his wife and minor son who are unable to maintain themselves hecannot he permitted to contract out of such an obligation. If he is allowed todo so, it would certainly defeat a legal right recognised by the Court underSection 125 of the Cr.P.C. The agreement propounded by the petitioner cannotannihilate the statutory right of respondents 1 and 2 in claiming maintenanceUnder Section 125 Cr.P.C. The agreement is certaintly opposed to public policy.Obviously the Court cannot enforce an illegal agreement. A waiver inderogation of a statutory right cannot be recognised by the Court as it affectsPublic Policy and as it is against the very statutory obligation imposed on ahusband to maintain his wife and children who are unable to maintainthemselves.
3. In Bhupinder Singh v. Daljit Kaur (1979 Crl.L.J. 198) the SupremeCourt had occasion to consider as to whether a compromise out of Court isa valid defence in the execution of maintenance awarded under Section 125 Cr.P.C.The Supreme Court held that if an order for maintenance has been madeagainst a person it would operate until it is vacated or altered in terms ofthe provisions of the Code itself. Section 125(4) provides that no wife shall beentitled to receive an allowance from her husband under the Section if she isliving in adultery or if without any sufficient reason she refuses to live withher husband or if they are living separately by mutual consent. Sub-Section(5) enables the Magistrate to cancel the order of maintenance on proof thatany wife in whose favour an order has been made is living in adultery or thatwithout sufficient reason she refuses to live with her husband. Section 127provides for certain contingencies whereby the Court can cancel the order ofmaintenance. As the original order of maintenance has not been modifiedor cancelled by a higher Court or is varied or vacated in terms of Section 125(4)or (5) or Section 127, its validity cannot be questioned on the strength of theagreement; entered into between the petitioner and the first respondent. Thelearned Magistrate was justified in ignoring the agreement and directing thepetitioner to make the payment of maintenance to respondents 1 and 2.
4. Learned Counsel for the petitioner submitted that the first respondent has recently married and so in view of the subsequent developments sheis not entitled to claim maintenance. He stated that a petition is pendingbefore the Court below in that regard. That is a matter to be considered bythe Court below.
5. There is no merit in the Criminal Miscellaneous Case and henceit is dismissed.