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high court himachal

On grounds of public policy, the wife cannot enter into a contract that she will not claim any alimony in future: High Court of Himachal Pradesh

Such contract is void and the Court will take notice of that and ignore such an agreement even though it was made by consent. The wife cannot barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law. This remarkable judgment was passed by the High Court of Himachal Pradesh in the matter of BEASA DEVI V SHIV DAYAL [CMP NO. 8958 OF 2019 IN FAO (HMA) NO. 50 OF 2001] by Honourable Justice Tarlok Singh Chauhan.

This application was filed under Section 25 (2) of the Hindu Marriage Act, 1955 for the enhancement of the permanent alimony and seeking clarifications in terms of the liberty reserved vide judgment dated 19.11.2001.

The facts of the case are such that the parties to this application got separated from each other and their marriage was dissolved by a decree of divorce granted by this Court vide judgment which was later upheld and application under Section 25 of the Act instituted by the appellant for permanent alimony was allowed by this Court. 

As per the compromise, the respondent agreed and undertook to deposit a further sum of Rs.1,50,000/- in addition to already deposited by him as per a previous. The Court held that the applicant is entitled to interest on the total sum till her life time or till her remarriage. In addition, thereto, respondent also agreed to pay a sum of enhanced maintenance to the applicant. The Court while disposing of the appeal observed that in case of any difficulty liberty was reserved to the parties to approach the Court for seeking further clarifications. Hence the instant application was filed under Section 25 (2) for the enhancement of the permanent alimony.

The High Court in this case faced two issues, whether the jurisdiction of the court is ousted by agreement and whether the right to future maintenance is transferable and if not, is the settlement void as far as the terms of maintenance are concerned.

The Court observed that by agreement, jurisdiction of the court which has been created by a statute cannot be taken away. Section 25 as a whole confers the jurisdiction on the competent court to provide permanent alimony and maintenance at the time of passing any decree or at any time subsequent thereto.

 The Court further observed that even if, a fixed maintenance allowance is agreed upon towards a decree of divorce, the quantum if accorded and recorded by the court, has to be understood for purpose of maintenance within the ambit of Section 25(1) of the Hindu Marriage Act and with the change in the circumstances the same shall be liable to be re-assessed under Section 25(2) of the Hindu Marriage Act.

For the second issue, the HC stated that, “The wife applies under S. 40 for alimony. It is held that on grounds of public policy the wife cannot enter into a contract that she will not claim any alimony in future. The contract is void and the Court will take notice of that and ignore that part of the order although it was made by consent. Wife cannot barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law.”

Also, considering the contractual aspect assuming a wife gives up her right to claim a higher rate of maintenance allowance in future her consent will not be regarded as lawful. Also, such an agreement will not only defeat the provisions of subsection (2) of Section 25 but will also frustrate the purpose of giving maintenance allowance.

The purpose is to achieve ‘social justice’ in interpreting provisions relating to maintenance, the Court is expected to bridge the gap between law and the society. Provisions relating to maintenance fall in category of legislation which is aimed at empowering the destitute and achieving the social justice, equity and dignity of the individual. In dealing with such cases there is necessity for drift from the ‘adversarial litigation’ to social context adjudication’, which is the need of the hour.

HC stated, “In granting permanent alimony no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs and financial capacity of the husband and other obligations. The Court is required to take note of the fact that amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party.

The Court adverting to the facts of the present case observed that the respondent in the instant case is a retired Shashtri teacher and is currently drawing a pension of about Rs.32,000/-. whereas the applicant has admittedly no independent source of income and is receiving interest of Rs.1240/- per month which is accruing on the amount invested in the bank.

The Court thus held “the present application is allowed and the respondent is directed to pay a further sum of Rs. 8000/- per month to the applicant. The concerned Treasury Officer is directed to henceforth deduct a sum of Rs.8000/- per month from the pension of the respondent and remit the same directly to the bank account of the applicant.”

Hence, the application was dismissed.

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