Criminal P.C. 1973 – S. 125 – Maintenance to wife – compromise between the parties – agreement for a meager amount as a full and final settlement – not a registered document – Application filed after a period of 20 years – wife has not re-married – seriously disputed the agreement – husband has driven out the wife and the children which has necessitated the wife to claim maintenance – Whether wife is entitled to seek a maintenance – Held, a woman who is a wife as per the explanation of Section 125 continues to be the wife even if divorced and not remarried and she cannot be denied the maintenance under Section 125. A right of a wife who is in destitute condition to get the maintenance from her husband is always available to her. Any compromise or a condition contained in the agreement held to be against the public policy and not valid.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
SPECIAL CRIMINAL APPLICATION NO. 2267 of 2011
RAJENDRABHAI VIRJIBHAI MAVADIA….Applicant(s) Versus STATE OF GUJARAT & 3….Respondent(s)
Appearance: MR SHAKEEL A QURESHI, ADVOCATE for the Applicant(s) No. 1 MR VH KANARA, ADVOCATE for the Respondent(s) No. 2 – 4
1. Present petition is filed for the purpose of seeking quashing and setting aside the judgment and order dated 30.7.2012 passed in Criminal Misc. Application No.224 of 2007 by the learned JMFC, Mangrol, as also the judgment dated 21.7.2011 passed by the learned Additional Sessions Judge, Junagadh in Criminal Revision Application No.99 of 2010.
2. While challenging the said concurrent decisions, the petitioner has brought the case on premise that on 13.4.2007, marriage between the petitioner and respondent No.2 came to an end by virtue of execution of divorce deed. It was the case of the petitioner that said deed contains full and final compensation which has been arrived at and paid by the petitioner. It has been stated that on 27.11.2007, immediately thereafter by suppressing the fact of divorce deed, an application for seeking maintenance came to be filed by respondent No.2. On 10.6.2010, vide Exh.22 the petitioner has filed detailed reply before the learned Magistrate and by opposing the application for maintenance, it has been stated that overall settlement had already taken place wherein, as a full and final settlement amount has already been determined not only with respect to the petitioner but for children as well and therefore, contended before the Court below that respondent No.2 is not entitled to seek any maintenance further. The petitioner’s case is that despite the aforesaid fact having been brought to the notice of the learned Magistrate, vide order dated 30.7.2010, the learned Magistrate was pleased to order an amount of maintenance and ordered to pay Rs.3000/- per month to respondent No.1, namely, wife and Rs.2000/- p.m. for original applicant No.2 – minor Surbhi and also amount of Rs.2000/- is ordered to be paid to original applicant No.3, who is also a minor son and therefore, has awarded a total sum of Rs.7000/- per month from the date of application to be paid continuously and Rs.500/- is awarded by way of cost while passing said order.
3. It is this judgment and order dated 30.7.2010 was made the subject matter of Criminal Revision Application No.99 of 2010 filed before the learned Sessions Judge, Junagadh, inter- alia, reiterating that by virtue of divorce deed, every right is extinguished by way of volition and therefore, none of the applicants are entitled to seek any maintenance. The detailed adjudication has already been taken place by leading evidence before the learned Magistrate and therefore, in Revision the petitioner has contended that gross material irregularity is committed and requested the learned Sessions Judge to set aside the order passed by the learned Magistrate in exercise of revisional jurisdiction. The said Revision Application came up for consideration before the learned 6th Ad-hoc Additional Sessions Judge, Junagadh in the month of July,2011 and vide order dated 21.7.2011, said Revision Application came to be dismissed and by virtue of which, the order passed by the learned Magistrate came to be confirmed. It is this order as also the order of learned Magistrate are made the subject matter of the present petition by invoking jurisdiction of this Court under Article 227 of the Constitution of India and in the background of this fact, the present petition is taken up for hearing.
4. Mr.Shakeel Qureshi, learned counsel appearing on behalf of the petitioner – husband has contended that both the courts below have grossly erred in ignoring the material aspect of the matter and has committed an error. It has been contended by learned counsel for the petitioner that the divorce has already taken place on 13.4.2007 and the said agreement came to be deduced in writing which is signed by the respondent for herself as well as on behalf of the children as guardian of them and has readily agreed to arrive at a figure which is mentioned in the agreement as a full and final settlement and therefore, now to turn around from the said agreement, is nothing but an abuse of process of law by the respondents. It has also been contended by learned counsel for the petitioner that said agreement was very much part of the proceedings before the learned Magistrate wherein, the respondent – wife has not disputed her signature nor has disputed the factum of separation. The marriage in the instant case solemnized on 24.5.1991 and since the marriage itself has been broken down and as a part of full and final settlement, amount is secured by the respondents, counsel for the petitioner has urged the Court not to allow the respondents to turn around from the binding given in the aforesaid writing, namely, the agreement.
4.1 Learned counsel for the petitioner has submitted that for the purpose of setting aside an agreement, a civil suit also came to be filed by respondent – wife which has been dismissed by the civil court. The learned counsel candidly submitted that no doubt, the appeal against the said dismissal of the suit is pending for further adjudication but, has contended that no stay is granted by the appellate court. It has also been contended that the learned Magistrate has committed a material irregularity in ignoring the material on record which is prima facie established the fact as mentioned as above and therefore, that material irregularity in exercising jurisdiction ought to have been corrected by the revisional authority, namely, revisional court. Learned counsel further submitted that even the error which has been committed by the learned Magistrate is reiterated and repeated by the revisional court as well and therefore, both the orders passed by the courts below are not tenable in the eye of law, based upon material irregularity and the finding arrived at being perverse, deserves to be corrected by allowing the petition.
4.2 Learned counsel submitted that respondent – wife with the children has long back separated herself from the petitioner in April,2007 and thereafter, there is no relationship of husband and wife subsisting and therefore, in the absence of that, allowing the maintenance to the wife is impermissible in law. To substantiate this contention, learned counsel for the petitioner is relying upon the decision delivered by the Punjab and Haryana High Court in case of