Attar Singh vs Smt. Meena and Another

M.L. Singhal, J.—Meena was married to Attar Singh on 17.11.1991 according to the Hindu rites. They cohabited at Jind and Chandigarh. As a result of their cohabitation, a child was born to them whose name is Alka.

Divorce with mutual consent was given to Attar Singh. His marriage with Meena was dissolved u/s 13(3) of the Hindu Marriage Act with his consent and the consent of Meena, According to Smt. Meena, she was duped into giving her consent to the dissolution of marriage with mutual consent u/s 13(3) of the Hindu Marriage Act. She, accordingly challenged that decree dissolving their marriage with mutual consent in the Court of the Sub Judge Ist Class, Chandigarh through declaratory suit.

Smt. Meena after her marriage with Attar Singh had been dissolved with their mutual consent u/s 13(B) of the Hindu Marriage Act, instituted claim for maintenance u/s 125 of the Code of Criminal Procedure claiming maintenance for herself and the child urging that she was not possessed of any means wherewith to maintain herself and the child. Her husband on the other hand is a teacher having handsome salary. Besides, he augments his income by giving coaching to the students privately. He owns agricultural land. He raises income to the tune of Rs. 10,000/- from agricultural land. His salary is Rs. 3700/- per month approximately. He is in a position to maintain his wife whom he married according to the tenents of the society. He is in a position to maintain his child whom he brought forth into this world.

Attar Singh contested this claim urging that she had no right to be maintained. Her marriage with him was dissolved with mutual consent. At the time when her marriage with mutual consent was dissolved, she gave up her claim to maintenance. It was, however, admitted that he is a teacher employed in Government School

Alongwith this application for maintenance, she prayed for the grant of interim maintenance for herself and the child,

Judicial Magistrate 1st Class, Chandigarh vide order dated 23.3.1995 allowed interim maintenance to Smt. Meena and her child to the turn of Rs. 350/- per month each, payable w.e.f. 29.11.1994.

Aggrieved from this order dated 23.3.1995, Attar Singh has come up in revision to this Court.

I have heard the Learned Counsel for the parties and have gone though the record. So far as child is concerned, he is entitled to be maintained by his father who brought her forth into this world. No fault can be found with the impugned order so far as the award of maintenance to the child is concerned.

Learned Counsel for the Petitioner has submitted that the learned Magistrate should not have allowed maintenance to the wife when the wife''s marriage with the husband stood dissolved with their mutual consent u/s 13(B) of the Hindu Marriage Act.

While allowing dissolution of marriage with their mutual consent u/s 13(B) of the Hindu Marriage Act. no payment was made in lump sum by the husband to the wife in lieu of her claim to maintenance. It is the statutory right of the wife to be maintained by her husband. This statutory right of wife to be maintained cannot be taken away by pressing into service any agreement which nullifies this right.

In Ranjit Kaur v. Pavittar Singh 1991 (2) PLR 421 Division Bench of this Court was confronted with similar proposition of law viz. "whether a wife who has voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance u/s 125 of the Code of Criminal Procedure" and this proposition was answered by the Division Bench against the husband. It was held that such an agreement in addition to its being opposed to public policy would also be against the clear intendment of the provisions of Section 125 Code of Criminal Procedure which enjoins that a husband/father is bound to maintain his wife/child who has sufficient means to maintain and whom he has neglected and has refused to maintain. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Articles 15(3) reinforced by Article 9 of the Constitution.

Relying upon the aforesaid Division Bench judgment of this Court, I am of the view that the Magistrate has justifiably allowed maintenance, to the wife and the child. Impugned order, suffers from no infirmity whatsoever. This revision petition fails and is dismissed. Litigation expenses to the tune of Rs. 1000/- are awarded to the wife incurred by her in this Court.