Can a husband escape from his liability to pay maintenance to his wife by signing an agreement to the contrary? Gau HC throws light

Gauhati High Court

Gauhati High Court: While addressing a matter with regard to maintenance of wife, Rumi Kumari Phukan, J., expressed that, the statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.

Petitioner has challenged the judgment passed by the Sub-Divisional Judicial Magistrate, in a case filed by the petitioner/wife under Section 125 of the CrPC, rejecting her prayer for maintenance by the impugned judgment.

Factual Background


After three months of the marriage of petitioner/wife and respondent/husband, the family members of the respondent started to torture the petitioner, both physically and mentally and demanded 5 lakhs dowry but as she could not fulfil their demand, the respondent abused the petitioner.

Petitioner also stated that the sister-in-law of the respondent also used to abuse the petitioner by using filthy language, assaulting her by pulling her hair and preventing her from talking to her husband.

On being aggrieved with husband’s behaviour, the petitioner lodged an FIR which was registered but on assurance of the family members of the respondent that they won’t harass her in future, the case was compromised, and she was allowed to stay at her parental house for the completion of her studies. Though the respondent never provided any maintenance, nor contacted her and since the petitioner had no income it became difficult for, her to bear the daily expenses.

In view of the above-said grievances, a petition under Section 125 CrPC was filed.

Husband’s Counsel submitted that there was no irregularity in the order so passed by the trial Court in as much as the petitioner herself resided in the parental house, admittedly by making an agreement that during her stay, her maintenance will be borne by her parents.

Analysis and Decision


High Court noted that the uncorroborated testimony of the 1st party and her witnesses established the fact that the 1st party was subjected to torture in her matrimonial house which gave her sufficient ground to live separately from the 2nd party.

The Bench noted that the respondent/husband in his cryptic written objection had not narrated any detail as to under what circumstances, the petitioner began to reside in the parental house and as to why the FIR was also against him and imply it was stated that the matter had been settled between the parties.

In Court’s view, such evasive denial on the part of the husband indicated that he had not taken proper care of his wife, while she was in her parental house.

Since after filing of the FIR, she began to reside in her parental house and that does not itself absolve the respondent/husband to provide maintenance to his wife, even though her parent might have maintained her.

On perusal of the facts and circumstances of the case, it was found that the petitioner had entered into marriage at her tender age, while she was a college-going student and due to some household conflict, the relation between the parties turned sour, as a result of which she returned to her parental house and also filed an FIR.

High Court expressed that,

“…the statutory right of a wife of a 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. Therefore, giving effect to an agreement, which overrides this provision of law, that is, Section 125 of Cr.P.C. would tantamount to not only giving recognition to something, which is opposed to public policy, but would also amount to negation of it.”

In the present matter, the respondent/husband could not prove that he had no sufficient means to discharge his obligation and that he did not neglect or refused to maintain his wife, whereas the petitioner had been able to prove that there was neglect on the part of the respondent.

Therefore, the trial Court’s decision was set aside, and a fresh Judgment will be passed in the instant case. [Bulbuli Saikia v. Jadav Saikia, 2022 SCC OnLine Gau 820, decided on 17-5-2022]


Advocates before the Court:

Advocate for the Petitioner: MR. A DUTTA

Advocate for the Respondent: MR. K K BHATRA

One comment

  • Good evening, this decision of the Gau High Court in connection with maintenance foregoing by the wife appears to have specific circumstances and as such the comment “agreement can’t override the Lagal provision” can’t applied as these situations can’t be generalized.

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