Balkar Singh vs Harvinder Kaur

Harmohinder Kaur Sandhu, J.—Amarjit Kaur Respondent was married to Balkar Singh on 21.3.1983 and out of this wedlock a daugher named Harvinder Kaur was born. On 31.1,1989 marriage of Amarjit Kaur and Balkar Singh was dissolved by a decree of divorce. Amarjit Kaur alleged that she had not remarried and after dissolution of marriage she was unable to maintain herself and her minor daughter. She, therefore, filed application u/s 125 of the Code of Criminal Procedure against her former husband Balkar Singh for grant of maintenance to her and her daughter. She also prayed for interim maintenance alleging that she has no source of income, while her husband Balkar Singh who owned agricultural land measuring 36 bigha 12 biswas and was also running a dairy, had a monthly income of Rs. 2500/-. She prayed for grant of interim maintenance at the rate of Rs. 500/- per month for herself and also for her daughter. The application was decided by Shri G.C. Bedi, Judicial Magistrate 1st Class, Patiala vide his order dated 16.1.1990 whereby he allowed interim maintenance at the rate of Rs. 300/- per month each to Amarjit Kaur and Harvinder Kaur. Against this order a Revision petition was filed by Balkar Singh Which was partly accepted by Additional Sessions Judge, Patiala, as Amarjit Kaur had remarried in March 1990. Order regarding granting of ad interim maintenance to Amarjit Kaur was set aside but that relating to Harvinder Kaur was maintained. Balkar Singh has now filed the present petition u/s 482 of the Code of Criminal Procedure for setting aside the order passed by Judicial Magistrate 1st Class, Patiala Annexure P.1 an Order passed by Additional Sessions Judge, Patiala Annexure P.2 whereby interim maintenance was granted to Harvinder Kaur Respondent.

I have heard the counsel for the parties.

It was argued on behalf of the Revision- Petitioner that marriage of Amarjit Kaur was dissolved by mutual consent and at that time all the disputes were settled. Amarjit Kaur had made a statement to the effect that she will keep her daughter with her and she will not claim any maintenance for herself and for Harvinder Kaur Respondent. In view of that statement she was not competent to file any application for grant of interim maintenance. Moreover the Petitioner was ready to keep his daughter with him and for that purpose he had already moved a petition for her custody which was pending in a court Amarjit Kaur had remarried and she was also in possession of 7 Bigha - 4 Biswas of land.

It was urged on behalf of the Respondent that even if Amarjit Kaur had made some statement that she will not claim a maintenance for herself and for the minor daughter, she was not debarred from claiming maintenance for the daughter when she was unable to maintain her, as statutory right to maintenance could not be bartered or negatived by an agreement to the contrary. It was further contended that the provisions u/s 125 of the Code of Criminal Procedure is a measure of social justice and specially enacted to protect women and children. The purpose of the Section is to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and have a moral claim to such a support. I find that this contention of the learned Counsel is quite valid. As per allegations in the application Amarjit Kaur was unable to maintain after she obtained a divorce from the Revision Petitioner and she had also no means to support her minor daughter. Subsequently she remarried. So, order granting maintenance was to her set aside by the learned Additional Sessions Judge but so far as the daughter is concerned, the fater is under an obligation to maintain her even though some statement was made by Amarjit Kaur that she will not claim maintenance for her. In the case Ranjit Kaur v. Pavittar Singh 1991 (3) RCR 212 the controversy in question was whether the wife who has voluntarily surrendered her right in divorce proceedings was not entitled to claim subsequently maintenance allowance u/s 125 of the Code of Criminal Procedure. The answer to the question was given in negative. It was held that wife who was unable to maintain herself was entitled to claim maintenance even after divorce as her statutory right to maintenance could not be bartered or negatived by an agreement to the contrary. So when a wife herself after voluntarily surrendering her right of maintenance can seek the benefit of provisions of Section 125 of the Code of Criminal Procedure the daughter who had never surrendered her right could not be debarred from claiming maintenance. In this view of the matter, I find no force in this petition and dismiss the same.