JUDGMENT
A. Barua, J.
1. This provisional application is directed against the Judgment and order date 25.2.99 passed by the learned additional District & Sessions Judge at Katwa, District Burdwan, in Criminal Motion No. 34 of 1998 in connection with the order dated 12.2.98 passed by the learned Sub-divisional Judicial Magistrate, Katwa in Misc. Execution Case No. 22 of 1996.
2. The petitioner Manoka Chatterjee was married to O.P. No. 1 Swapan Chatterjee. The O.P.–husband started torturing the petitioner-wife and had driven her out of his house for which she was compelled to stay in her parental house. The petitioner had no means to maintain herself and had, therefore, brought the case for maintenance under Section 125 Cr.PC against the husband. She was ordered to pay Rs. 200/- per month for her maintenance by the learned S.D.J.M., Katwa by his order dated 17.11.87. In pursuance of that the petitioner-wife filing an application under Section 128 Cr. PC, obtained an order by the learned S.D.J.M., Katwa for payment
of Rs. 2,400/- by the husband. By order dated 12.2.98 the learned S.D.J.M., Katwa ordered all payments of maintenance to be made to the wife by the husband. That order of the learned Magistrate was assailed by the O.P. husband and the learned Additional District & Sessions Judge in Criminal Motion No. 34 of 1998 passed the impugned order dated 25.2.99 whereby he allowed the said criminal motion and set aside the order of the learned S.D.J.M., Katwa in Misc. Execution Case No. 22 of 1996. On the grounds that the petitioner-wife had already filed a compromise petition with her husband before the Civil Court in connection with a Mat. Suit under Section 13 of the Hindu Marriage Act and that since the said compromise petition was allowed on payment of Rs. 62,000/- for future maintenance of the wife, Manoka Chatterjee, no further claim could be made by her.
3. The wife, that is the petitioner, Manoka Chatterjee, started a case for maintenance under Section 125 Cr.PC against her husband, Swapan Chatterjee, O.P. No. 1. She was granted maintenance @ Rs. 200/- per month by the learned Magistrate. Direction was also given in the execution case for payment of Rs. 2,400/- by the husband to the wife. Being aggrieved, the husband preferred a criminal motion before the learned additional District & Sessions Judge, Katwa before whom the point for consideration was whether the learned Magistrate erred in allowing the petition under Section 128 Cr.PC by wife, Manoka directing the husband, Swapan to pay the arrear maintenances prayed for. By his impugned judgment dated 25.2.99 the learned Additional District & Sessions Judge, Katwa allowed the criminal motion on contest and had set aside the order of the learned Magistrate. The only point for determination before us is whether the learned additional District & Sessions Judge, Katwa was justified in allowing the said criminal motion and thereby dismissing the wife Manoka Chatterjee’s claim for maintenance.
4. I have gone through the judgments and orders passed by the learned Sub-Divisional Judicial Magistrate and the learned additional District & Sessions Judge, Katwa.
5. The focal point of controversy before the learned Courts below was whether the wife, despite having entered into a mutual agreement with her husband whereby on consent of parties, she was to receive a sum of Rs. 62,000/- as future maintenance and to withdraw all cases pending in different Courts and whereby the marriage was dissolved by a decree of divorce by mutual consent, was debarred from claiming any maintenance allowance which was payable in accordance with the orders passed in connection with the previous maintenance case under Section 125 Cr. PC by the wife against the husband.
6. The learned Sub-Divisional Judicial Magistrate, Katwa appears to have relied upon case laws reported in (1986) I DMC page 129 which was to say that receiving a lump-sum maintenance on divorce was not tantamount to surrendering right to get maintenance under Section 125 Cr. PC and another case reported in (1987) Cr. LJ page 765 which was to say that if there was any agreement for foregoing right of maintenance, such agreement was against public policy and was hit by Section 23 of Cr.PC Act and that this agreement could not be enforced. The learned Magistrate,
therefore, found that the O.P. husband could not escape from the liability to make the payment of maintenance.
7. The learned additional District & Sessions Judge does not seem to have given due consideration to the case laws cited above and relied on by the learned Magistrate. According to the learned additional District & Sessions Judge, Manoka Chatterjee got an order of maintenance already to the tune of Rs. 200/- per month from the learned Magistrate and subsequently while the learned additional District & Sessions Judge considering the compromise petition allowed the Mat. Suit on payment of Rs. 62,000/- for future maintenance of wife, Manoka Chatterjee, no further claim could be made by her.
8. I am afraid, I am not persuaded by the reasons afforded by the learned Additional District & Sessions Judge in dismissing the wife, Manoka Chatterjee’s claim for maintenance. In the first place, a mutual agreement in a divorce proceeding under Section 13B of the Hindu Marriage Act that spells out a condition that the wife on getting a lump sum amount of Rs. 62,000/- or whatever be the amount–perpetually binds herself not to claim any further maintenance allowance in future and also that she would withdraw all cases pending in different Courts is neither tenable in law nor should answer the Court’s good conscience. Section 125 of the Code of Criminal Procedure is a piece of welfare Legislation and its principal purpose is to protect the indigent wife from vagrancy and destitution. Even if a wife binds herself to such an agreement consciously or unconsciously, law must come to her aid to protect her statutory right of maintenance under Section 125 Cr.PC and also her right to life and live with dignity. It is also to save her interest–that of a divorced wife distressed and unable to maintain herself–in the larger Interest of the benefit of the society as a whole. The learned Magistrate rightly relied upon the decision in the case of Sadasivan Pillai v. Vijayalakshmi reported in 1987 Cri.LJ 765, wherein it was held thus:
The purpose of Section 125 is not to recognise or create a right as such in favour of wife. It is intended to ameliorate a social problem which concerns destitution or vagrancy. The primary object of Section 125 is to prevent starvation and vagrancy of persons unable to maintain themselves. Thus it is the public policy that a wife or child or father or mother who is unable to maintain herself or himself should be paid maintenance allowance by the husband or father concerned who can afford it. If he neglects to do so he must be made to do it. It is a basic principle of law that an agreement which is opposed to public policy cannot be enforced in a Court of law. Section 23 renders such an agreement void if its consideration or object is unlawful. If the object or consideration of an agreement would defeat the provisions of any law and if it is opposed to public policy the agreement would be treated as unlawful and consequently void. Therefore, a clause in an agreement that the wife shall not be entitled to claim maintenance from the husband cannot be used as a defence in proceedings under Section 125. The relinquishment of the right to maintenance by the wife will not bar proceedings under Section 125. That apart, the relevant clause in the Joint petition filed under Section 13B that neither
the wife nor the husband has any claim or right on each other’s person or property does not absolve the husband of his obligation to pay maintenance allowance to the wife in the event of her becoming unable to maintain-herself. For this reason also the said clause cannot be made available to the husband as a defence in the proceedings under Section 125.
9. It was also decided in the case of K. Pandian v. A. Savithiri reported in 1999 Cri. L.J. 8, that the mere fact some amount is given to wife for future maintenance would not disentitle her from claiming maintenance.
10. In my view, a so called “future maintenance” of a lump sum amount of money cannot be made frozen on time. It is flexible and changes from time to time according to the change of circumstances the wife is confronted with.
11. What the law does not dictate, what the public policy does not permit, cannot pass away in the name of equity, the concept of which, I am afraid, by the learned Additional District & Sessions Judge is throughly misplaced.
12. In my considered view, the learned Additional District & Sessions Judge was not justified in setting aside the order of the learned Magistrate dated 12.2.98.
Accordingly, this revisional application is hereby allowed on contest. The impugned order of the learned Additional District & Sessions Judge dated 25.2.99 is hereby set aside and that of the learned Sub-Divisional Judicial Magistrate, Katwa, dated 12.2.98 is hereby affirmed.
The criminal revision is accordingly disposed of.
Urgent xerox certified copy of this order, if applied for be given to the parties.