The Supreme Court on April 22, 2019, in the case of Ganesh v. Sudhirkumar Shrivastava & Ors., has observed that the wife cannot give up the rights which vest in the daughter insofar as maintenance and other issues are concerned, during divorce by mutual consent.
While hearing an appeal, a Bench comprising of Justice Uday Umesh Lalit and Justice Indu Malhotra expressed its reservations against one of the terms agreed between the parties which reads thus:
“The applicant has released the right of monthly maintenance to the daughter with the non-applicant. The applicant has fully accepted responsibility for the child’s livelihood, education and health.”
In this regard, the court said 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."
Therefore, exercising its powers under Article 142 of the Constitution of India, the court set-aside the said Clause.
The impugned Clause in the consent terms due to which the husband moved the apex court was that the wife will take back the complaint she had filed against the husband and his relatives. However, when she did not withdraw the complaint, a contempt petition was filed by the husband, which got dismissed.
To this, the court said that "If the parties had arrived at a settlement and decided to withdraw the cases filed by each of the parties against the other, the compromise ought to be effectuated in complete sense."
The court, thus, quashed the FIR registered against the husband and relatives in this regard.
