In a recent judgement, the Himachal Pradesh High Court has held that an agreement for payment of maintenance between a divorced couple in contravention of a court order of maintenance is not allowed.

In this case, a court had passed an order of permanent alimony and maintenance in the favour of a woman after her divorce as per Section 25 of the Hindu Marriage Act.

Subsequently, the parties entered into a compromise/agreement and decided that the woman’s ex-husband would pay her an additional sum of money apart from the maintenance amount already ordered by the court. It was also decided that the woman will no longer claim any maintenance thereafter. Therefore, the parties approached the court seeking recall of its earlier order.

The High Court held that the purpose of maintenance under Section 25 of the Hindu Marriage Act is to ensure that a woman, after divorce, is not left destitute and can continue to live in the same way as she did during her marriage.

Therefore, when a law confers jurisdiction upon a court for deciding maintenance payable to a woman, such jurisdiction of the court cannot be taken away by a contract between parties.

Judgement details :

• Beasa Devi v. Shiv Dayal [CMP 8958/2019, HP High Court].

Judgement link :
https://highcourt.hp.gov.in/cmis/casest/cis/generatenew.php?path=../../orders/orders/2019/&fname=203000089582019_5.pdf&smflag=N

The Supreme Court, vide its judgement of Vineeta Sharma v. Rakesh Sharma, has enlarged the scope of daughters availing equal rights of coparcenary property as those of sons under the Hindu Succession Act, 1956. The main provision in this regard is Section 6 of the Act, which states how interest in a coparcenary property devolves.

Before 2005, only male members of Hindu families (specifically, Mitakshara families) were eligible to hold interest in coparcenary properties. Therefore, the joint family properties of Hindus would have generally gone to male descendants only, because daughters were not eligible to become coparceners.

Thereafter, by way of an amendment in 2005, the law granted a daughter equal rights to become coparceners as her male counterparts in her own right as if she were a son. This was a monumental change, which some states had already introduced under their own laws.

However, the main issue in interpretation of this provision was that it granted this right to daughters from the date on which this amendment was given effect, i.e. since 9th September, 2005. There was some confusion in this regard because in some judgements had created some differences of opinion as to whether this provision applies only to daughters taking birth after the amendment, whether it grants rights to daughters even if their fathers were alive on that date, and other such issues, all of which were clarified by the Supreme Court under this judgement.

The court held that :

• Section 6 has retrospective effect. This means that the rights under it can be claimed by daughters who were born before the 2005 amendment also.
• Since these rights arise simply by the birth of daughters, it is not necessary that father coparceners should be alive on 9th September, 2005 for daughters to get those rights.

This judgement can be accessed here :
https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf