A.P. Ravani, J.
1. Substitute illusion for reality : Such is the claim made by the petitioner-husband, who has succeeded in getting divorce and discharging his liability for future maintenance of the divorcee by paying lump sum amount of Rs. 901/- in all. Can law countenance illusory payment of lump sum amount as future maintenance and discharge the husband from his liability to provide necessary wherewithal for the maintenance of the divorcee?
2. The petition arises out of maintenance proceedings instituted by the petitioner-wife against opponent 1 husband. The petitioner filed Criminal Misc. Application No. 35 of 1983 in the Court of JMFC, Kalol. She claimed that earlier she had filed an application for maintenance being Criminal Misc. Application No. 50 of 1979. In that application there was a compromise between the parties and the application was dropped. The marital tie was dissolved by executing a deed of divorce dt. Dec. 21, 1981 which is produced at Exh. 14. As per the deed of divorce, the opponent-husband had paid Rs. 901/- towards maintenance. Thereafter, the petitioner filed an application for maintenance and submitted that, though she was divorced, she was entitled to claim maintenance at the rate of Rs. 150/-per month. She had no means of earning. She was staying with her parents as parasite. Of course, she was helping in the agriculture work of her parents, but she had no independent source of earning. She had examined herself and her father in support of her claim. The opponent-husband examined himself and relied upon the deed of divorce produced by both the sides. The opponent-husband stated that he had already paid an amount of Rs. 901/-as and by way of maintenance for past as well as future. Therefore, there was no liability on him to pay any amount of maintenance.
3. The trial Court, on appreciation of evidence, came to the conclusion that the petitioner-wife was employed with her parents and was doing some agriculture labour work. Thus the parents of the petitioner-wife were getting some labour work done free of charge and in consideration thereof, they were maintaining her. Therefore, according to the learned Magistrate, she had sufficient means of livelihood and therefore, she was not entitled to claim any maintenance. The learned Magistrate also held that there was no evidence on record to show as to what was the extent of income of the opponent-husband and he also held that in view of the divorce deed the petitioner-wife had voluntarily surrendered her right of maintenance and therefore, she was not entitled to claim any maintenance. This judgment and order was delivered by the trial Court on Feb. 23, 1984, against which the petitioner-wife preferred Criminal Revision Application No. 51 of 1984 in the Court of Sessions Judge at Panchamahals at Godhra. The learned Sessions Judge disposed of the revision application only on one ground. In his view, as per the provisions of Section 127(3)(c) of the Cr. P.C. the application for maintenance, filed by the petitioner was not maintainable at all. Hence, without going into other aspects of the case, the learned Sessions Judge rejected the revision application as per his judgment and order dt. Aug. 16, 1984. Being aggrieved by the aforesaid judgments and orders passed by the lower courts, the petitioner-wife has preferred this special criminal application.
4. It appears that the lower Courts have completely gone wrong in applying the provisions of Section 127(3)(c) of the Cr. P.C. Section 127(3)(c) of the Cr. P.C. reads as follows:
127(3). Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that -
(a)&(b) XXX XXX XXX
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
For the applicability of the aforesaid provisions, the pre-requisite condition is that there should be an order under Section 125 of the Cr. P.C. In the instant case, there is no order whatsoever under the provisions of Section 125 of the Code. In the earlier proceedings of Criminal Misc. Application No. 50 of 1979, the Court had not passed any order in favour of the petitioner-wife granting maintenance. Parties had arrived at settlement and the application was dropped, without there being any order directing the opponent-husband to pay any amount of maintenance. Therefore, both the lower Courts have gravely erred in applying the provisions of Section 127(3)(c) of the Cr. P.C.
5. The learned Counsel for the opponent-husband submitted that the principle underlying the provisions of Section 127(3)(c) of the Code should be applied. According to him, if wife obtains an order in her favour under Section 125 of the Code and thereafter obtains divorce and voluntarily surrenders her right to future maintenance, then she would not be entitled to claim any maintenance whatsoever under the provisions of Section 125 or under Section 127 of the Code. Similarly, according to him, in the instant case, the petitioner-wife has, at the time of executing the divorce deed, accepted certain ascertained amount towards future maintenance and has surrendered her right to claim maintenance and therefore, she should not be granted any maintenance whatsoever. I am afraid, this proposition cannot be accepted.
6. In respect of the rights of the Muslim women, the Supreme Court has made the legal position clear in the case of Bai Tahira v. Ali Hussain Fissalli, reported in : 1979CriLJ151 , and in the case of Mohd. Ahmed Khan v. Shah Bano Begum, reported in : 1985CriLJ875 . In Bai Tahira's case (supra), the Supreme Court has stated that the payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate, but cannot annihilate that rate unless it is a reasonable substitute. The purpose of the payment 'under any customary or personal law' must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. There must be a rational relation between the sum so paid and its potential as provision for maintenance. In the latter case, i.e. in Mohd. Ahmed Khan's case (supra), the Supreme Court has clarified the meaning of the term 'Mehr' with which we are not concerned.
7. The principle underlying the lump sum payment as laid down by the Supreme Court in Bai Tahira's case (supra) can be equally applied to the facts and circumstances of this case. The basic principle is that the object of the lump sum payment to be made is to obviate the destitution of the divorcee and to provide her with the wherewithal to maintain herself. As laid down by the Supreme Court, there must be a rational relation between the sum so paid and its potential as provision for maintenance. In the instant case the petitioner-wife was forced to go to Court for claiming her maintenance. Under the circumstances, then prevailing she gave up her right to claim future maintenance 'voluntarily' for lump sum amount and executed the deed of divorce. Now, when she has preferred an application for maintenance, it cannot be said that the application at the instance of the petitioner-wife claiming maintenance is not maintainable because she had surrendered her future right of maintenance. Whenever in application for maintenance it is contended that because lump sum amount is paid towards the claim of future maintenance and therefore the application is not maintainable, it would be the bounden duty of the Court to examine whether the lump sum amount of maintenance mentioned in the deed of divorce or claimed to have been paid otherwise, had any rational connection with the necessities of life to be provided for in future and was it not an illusory amount or was it sufficient amount to maintain herself for the entire life?
8. This principle has its roots in the public policy and the provisions of law. Underlying public policy, behind the provisions of law regarding maintenance is that one who is destitute should be provided maintenance by the person whose duty it is to maintain such person. This public policy cannot be circumvented and the object of law cannot be frustrated by making a payment of illusory amount of maintenance. As far as the surrender of future right to maintenance is concerned, answer is very simple. Agreement to surrender such right of future maintenance for illusory amount of maintenance would be unfair and unconscionable. Such agreement is entered into between two unequals. One (i.e. wife, child or parents, as the case may be) is destitute and helpless and another (i.e. husband, father or son as the case may be) relatively stronger and better placed in the society. Ordinarily this will be the position, though exception cannot be ruled out completely. In this background, if the amount determined for future maintenance is illusory, the agreement to surrender the right to maintenance also would be unlawful as it would be against the public policy and also unconscionable and unfair. Both the courts below have failed to examine the question from this angle. Thus, both the Courts below have failed to exercise the jurisdiction vested in them and have completely misdirected themselves. This has resulted into miscarriage of justice and hence it is necessary to exercise powers under Article 227 of the Constitution..
9. An amount of Rs. 901/- was paid to the petitioner-wife at the time of execution of deed of divorce. By no stretch of reasoning, it can be said that an amount of Rs. 901/- would be sufficient amount to maintain oneself for the whole life. An amount of Rs. 901/- would not be even sufficient for maintaining oneself for a period of even one year. The so-called compromise was arrived at on Dec. 21, 1981. The application was filed on April 18, 1983. The amount of Rs. 901/- would have been spent on the bare necessities of life in the very first year. By no stretch of reasoning, it can be said that the amount was sufficient to meet with the maintenance liabilities for the entire period of life. The amount of Rs. 901/- was an illusory amount and both the courts below have come to grossly erroneous finding that the application was not maintainable on account of the fact that an amount of Rs. 901/-was determined as lump sum payment towards future maintenance. In view of the aforesaid position of law and in view of the fact that the lower Courts have proceeded on wholly erroneous basis, this Court will have to examine the record and pass appropriate order with regard to maintenance.
10. The trial Court has held that the petitioner-wife had sufficient means to earn her livelihood. The reasoning adopted by the trial Court, to say the least, is perverse. The petitioner was forced to live as parasite with her parents. She was forced to do agriculture work for her father. This is considered to be sufficient means of earning livelihood. This sort of reasoning and conclusion is nothing but the result of pervert way of looking at the life. The learned Magistrate ought to have realised that one does not live the life of parasite out of volition. The fact that she is required to live her life as destitute and if she helps in the agriculture work of her father, it can never be said that she had sufficient means to earn her livelihood. The fact that she is forced to go to her parents' place and live there as parasite itself should be considered sufficient to hold that she was unable to maintain herself.
11. One question has been put in the cross-examination of the petitioner-wife from which it can be safely inferred that the opponent-husband has agricultural land. It has been brought out as follows : 'It is true to say that during the married life with the opponent, I was doing the agricultre work of the opponent'. This fact has been brought out in the cross-examination of the petitioner-wife, meaning thereby, it was the suggestion of the opponent that even when she was living at the place of the opponent-husband, she was doing agriculture work. But, implicit is the fact that the opponent-husband had also some agricultural land and therefore, it can be safely inferred that the opponent-husband has different sources of income and one of them is agriculture. Not a word regarding his income from agriculture has been stated by the opponent-husband. However, from the description of the occupation given by him, it becomes clear that the opponent is serving as a Teacher. When a person is serving as a Teacher, it can safely be inferred that his income would at least be Rs. 550/- (Rupees Five hundred and fifty) per month. This will be the income of even a Primary School Teacher. On this basis, leave apart the income from agriculture, the petitioner-wife would be entitled to claim at least Rs. 130/- per month as and by way of maintenance.
12. In the result, the application is allowed. The judgment and order passed by the lower Courts are quashed and set aside. The opponent-husband is directed to pay an amount of Rs. 130/- per month to the petitioner-wife as and by way of maintenance from the date of application, i.e. April 18, 1983. However, the amount of arrears shall be paid by instalment of Rs. 170/- per month, that is to say, the opponent-husband shall, in all, pay an amount of Rs. 300/- per month till the arrears are wiped out. After the arrears are wiped out, the opponent-husband shall pay the maintenance of Rs. 130/- per month regularly.
Rule made absolute to the aforesaid extent only.