Ganesh v. Sudhirkumar Srivastava and Ors: The court must clarify its stand on the wife’s right to maintenance

[dropcap]T[/dropcap]HE Supreme Court of India has held that while a mother cannot give up the right to claim maintenance of her minor child even when the divorce has been obtained by mutual consent, she is open to relinquish her own claim for maintenance, permanent alimony or stridhan.

While the court’s statement on the maintenance rights of a minor child is certainly welcome, what is  disturbing and will likely open itself up to misinterpretation is what the judges have said in relation to the woman’s own right to maintenance, even though it is a remark made in passing .

That it would be acceptable for a  woman to waive the right to  her own maintenance goes against established law which says the statutory right to maintenance cannot be relinquished or bartered away as that would be against public policy.

Justices Indu Malhotra and U. U. Lalit held in Ganesh v. Sudhirkumar Srivastava and Ors., Civil Appeal No. 4031-4032 of 2019  that it “ was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned.”



Background of the case



The parties, in this case,  were married as per Hindu rites and had a minor daughter together. Due to differences they entered into consent terms for a divorce. The agreement included among other things the withdrawal by the wife of criminal proceedings against the husband and the relinquishing of her right to alimony and maintenance as well as the right to her daughter’s maintenance.

On the wife’s refusal to withdraw the criminal proceedings against her husband, the latter approached the court after the divorce was entered into, with a plea to quash the criminal case.





While quashing the criminal proceedings the court observed:

“Before we part with, we must also express our reservation insofar as Term No.6 is concerned, which was incorporated in the order on 08.11.2017 by the Principal Judge, Family Court, Aurangabad. It was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned.”



Public Policy – the governing law



The Bombay High Court, in the matter of Ramchandra Laxman Kamble vs Shobha Ramchandra Kamble and Anr, Writ Petition No 3439 of 2016, while dealing with the right to maintenance under Section 125 CrPC, had held that even if the wife gave up or relinquished her right to claim maintenance, at any time in the future, it was opposed to public policy and therefore such an agreement, even if voluntarily entered into, would not be enforceable.

In the matter of Ranjit Kaur vs Pavittar Singh, 1992 CriLJ 262, a division bench of Punjab and Haryana High Court had to decide whether a wife who had voluntarily surrendered her right to maintenance in divorce proceedings, would not be entitled to claim subsequently maintenance allowance under Section 125 of the Code of Criminal Procedure. The court held:

“That right under S125 is a statutory right which the legislature has framed irrespective of the nationality, cast or creed of the parties. The statutory liability imposed by this Section is, therefore, distinct from the liability under any other law. Thus, where it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the maintenance. This right being a right to survival or livelihood essentially survives and lives every moment of life of the person entitled to be maintained. Therefore, this statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision. Giving effect to an agreement which over-rides this provision of law, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it.





“… such an agreement may not per se be illegal, but it cannot be given effect to being a negation of the statutory right as provided for in S. 125 of the Code of Criminal Procedure and being opposed to public policy.”

Similarly, in Rajesh R. Nair vs Meera Babu, 2013 CriLJ 3135, a division bench of the Kerala High Court held that an agreement, by which the wife waived her right to claim maintenance, would be a void agreement as against public policy. Such an agreement would amount to ousting of jurisdiction of Magistrate and Family Court to entertain maintenance claim, which cannot be permitted by law.  The Kerala High Court had relied on the ruling of the

The Supreme Court in Bai Tahira vs Ali Hussain Fidaalli Chothia and Anr, (1979) 2 SCC 316, in which apex court while rejecting mehar – the mandatory payment, in the form of money or possessions paid by the groom, to the bride at the time of marriage – defence used by the husband said Section 127 of Cr.P.C. could not rescue the husband from his obligation.

In Rameshwar vs State of Maharashtra and Anr 2018 (4) MhLJ (Cri), also the court said any agreement by which the wife relinquished her right to maintenance at any time in future was contrary to public policy and consequently unenforceable. 

A woman may, therefore, choose not to take alimony or maintenance from her husband but there can be no relinquishment of the statutory right to maintenance in the future. In other words,  if the parties to a divorce by mutual consent incorporate a clause in which the woman waives her right to maintenance, the agreement in so far as that waiver is concerned will not be enforceable.



Maintenance is a statutory right



Right to maintenance of a wife is governed by the following statutes:

Code of Criminal Procedure, 1973

Section 125 of the Code provides that “if any person, having sufficient means, neglects or refuses to maintain….his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.

Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation – “wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.”

Hindu Marriage Act, 1955

Under the Hindu Marriage Act, an order for maintenance may be made by the Court for maintenance pendente lite (interim or temporary) and expenses of the proceedings under Section 24 and for permanent maintenance and alimony under Section 25.

Hindu Adoptions and Maintenance Act, 1956





Section 18 of the Act provides for maintenance to wife

“1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.

  1. If he is guilty of desertion or of willfully neglecting her.
  2. If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
  3. If he is suffering from a virulent form of leprosy.
  4. If he has any other wife living.
  5. If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.
  6. If he has ceased to be a Hindu by conversion to another religion.
  7. If there is any other cause justifying living separately.

(3) (Forfeiture of the claim of maintenance). A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.”

Protection of Women from the Domestic Violence Act

Under this enactment, maintenance will be granted under Section 20 of the Act to not just the wife but every woman who has been in a relationship in the nature of marriage and has been the victim of domestic violence.

While protecting the rights of a minor child, Justices Indu Malhotra and U. U. Lalit, have created uncertainty with regard to a woman’s right to maintenance. The order leaves room for an interpretation of the law which will put the woman at a disadvantage, unless the Supreme Court issues a necessary clarification at the earliest.

The Leaflet