1. The marriage of the parties to this litigation was dissolved by a decree of divorce on October 4, 1978. The respondent-wife moved an application on September 13, 1979 under Section 25 of the Hindu Marriage Act, 1955(for short, the Act) for the grant of permanent alimony and as a result thereof she has been granted Rs. 150/- per month as maintenance till the time of her death or she remarries. The case of the appellant was that as a matter of fact during the pendency of proceedings under Section 9 of the Act initiated by him, the parties had come to a settlement in the form of an agreement (R.1) whereby the appellant had foregone his rights to claim the custody of the child (admittedly a daughter was born to the parties as a result of their wedlock) and the respondent-wife had relinquished her all rights of maintenance under Section 125, Cr. P.C. and S. 25 of the Act. The execution of this agreement is not in dispute. It is only its validity which is seriously being disputed. The learned lower Court has absolved the respondent of her liabilities under the agreement on the ground that the same was void as the matter was violative of a public policy. which according to the Court is to grant maintenance in favour of wife.
For this conclusion, the lower Court has primarily depended on a judgment of the Bombay High Court in Hirabai v. Pirojshah, AIR 1945 Bom 537, wherein it is said while considering the implications of Section 40 of the Parsi Marriage and Divorce Act, 1936 that 'Section 40 is based on grounds of public policy and based directly on the principles of not allowing parties whose martial ties are severed to become a burden on the charitable institutions of the community like the Parsi Panchayat who are really the guardians of Poor Relief of the community. The wife's right to future alimony under Section 40 after dissolution of marriage is a matter of public concern which she cannot barter away.'
2. After hearing the learned counsel for the parties at some length, I find it difficult to reconcile with the ratio of the above-noted judgment of the Bombay High Court and the conclusion of the lower Court. The test as to when an agreement can be said to be violative of public policy has been so well enunciated by the Supreme Court in Lachoo Mal v. Radhye Shayam, AIR 1971 SC 2213, in the following words (Para 7):--
'What makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law. Clearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement.'
3. A bare reading of Section 25 of the Act discloses that it confers no absolute right on any of the spouses to maintenance or permanent alimony at the time of passing of decree under the Act. In the given facts and circumstances of a case, the Court may decline to grant the maintenance, if that is the legal position or implication of the section then a spouse throw away his or her right to maintenance by entering into an agreement with the other. Even the learned counsel for the respondent concedes that in case the Court comes to a conclusion that a wife who makes an application under S. 25 of the Act is possessed of enough means or is financially affluent the Court may decline to grant maintenance or permanent alimony in her favour at the time of granting of a decree for divorce. If that can be the position why cannot a wife having the same affluent means barter away her right to claim maintenance through an agreement. To my mind, the entering into an agreement of the type, the one (R.1) has been entered into between the parties, violates no provision of law nor any public policy. As already indicated, the provisions of S. 25 are only enabling ; enabling a Court as well as the applicant to seek maintenance in accordance with the same.
4. For the reasons recorded above, I allow this appeal and set aside the order of the trial Court and disentitle the respondent-wife from any maintenance or alimony in view of the agreement Ex. R. 1 which she entered into with the appellant. No costs.
5. Appeal allowed.