The Gauhati High Court has recently held that the right to receive maintenance from husband under Section 125 CrPC is a statutory right of a wife and the husband cannot escape from his liability by signing an agreement with the wife to the contrary.

The bench of Singh judge, Justice Rumi Kumari Phukan was hearing a plea filed by a wife challenging the orders of a trial court, which on June 26, 2019 denied her maintenance on the ground that she had entered into an agreement with her husband that her expenses would be looked after by her parents, till the time she stayed at her parental house.

The couple got married on March 10, 2016. But within three months of their marriage, the wife claimed that she was subjected to torture by her husband and her in-laws and thy were demanding dowry.

The wife lodged a criminal case against them. And then the husband and his parents tried to settle the case. While settling the case, the wife allegedly agreed that till the time she would stay at her parents’ house, her expenses would be looked after her by parents.

She alleged that the husband never returned to take her back to the matrimonial house and accordingly, she sought maintenance for herself as she was pursuing her undergraduate studies.

On the other hand, the husband alleged that the wife was leading an adulterous life. He relied upon the personal diary of the wife, where she had confessed to having some inclination towards another man prior to the marriage.

The husband also cited the existence of the agreement.

The trial court rejected the argument of the husband regarding adultery stating that that the wife had such feelings for another person prior to her marriage and not after marriage with the husband and therefore it couldn’t be said that she was leading an adulterous life.

Despite that, the trial court ruled against the wife leading to the present appeal before the High Court.

The High Court noted that the wife was living at her parental house since January 2017 and that the husband hasn’t provided any maintenance to her since then despite the fact that she was pursuing her education.

The court observed:
“Peculiarly, in his cryptic written objection, he has not narrated any detail as to under what circumstances, she began to reside in the parental house and as to why the FIR was also filed against him and simply it is stated that the matter has been settled between the parties. Such an evasive denial on the part of the husband itself indicates that he has not taken proper care of his wife, while she was in her parental house.”

The judge further noted that plea of the husband itself revealed that he had not bothered to maintain his legally married wife though he admitted that she was a college student with no source of income.

“More so, her husband did not even hesitate to raise the plea of adultery, simply on the expression she recorded in her diary that she had some inclination to another person, prior to her marriage,” the bench added.

Regarding the agreement between the wife and the husband about non payment of maintenance, the Court said the same would be void in view of Section 125 CrPc.

The judge noted that the husband was a teacher in a school and was earning around ₹22,000 per month.

“Going by the provisions of the Act and the pleadings and evidence on record and legal proposition, it can be held that the husband has not been able to prove that he has no sufficient means to discharge his obligation and that he did not neglect or refused to maintain his wife, whereas the wife has been able to prove that there is neglect on his part to maintain his legally married wife,” the bench said.

The court therefore, set aside the trial court’s order and directed the trial court to consider the matter afresh.

“Both the parties are directed to appear before the learned trial Court on June 14, 2022, to receive further order from the court,” the High Court said.