Jaipati vs Gian Chand

R.L. Khurana, J.—The Petitioner aggrieved by the order dated 1.9.1998 of the learned Additional Chief Judicial Magistrate, Rohru, is before this Court by way of the present revision petition.

Briefly stated the facts of the case, leading to the present revision petition, are these. The Petitioner is the wife of the Respondent. She preferred a petition u/s 125, Code of Criminal Procedure, against the Respondent before the learned Sub Divisional Judicial Magistrate, Rohru on 24.7.1989. This petition came to be registered on the files of the ''earned Magistrate as case No. 94/ 4 of 1989, vide order dated 31.12.1990. The petition u/s 125, Code of Criminal Procedure, preferred by the Petitioner was allowed and maintenance at the rate of Rs. 250/- per month was granted in her favour. It appears that during the course of the proceedings for the enforcement of the order dated 15.12.1990 some compromise was arrived at between the parties whereby a lump sum amount of Rs. 10,000/- was paid to the Petitioner by the Respondent towards the maintenance and on receipt of such amount the Petitioner is alleged to have given up her right to future maintenance.

On 26.7.1997 the Petitioner again approached the learned Additional Chief Judicial Magistrate by way of the petition u/s 125, Code of Criminal Procedure, seeking enhancement in the amount of maintenance of Rs. 250/- per month, which was granted in her favour on 25.12.1990, on the ground that keeping in view the high cost of living and the constant rise in prices maintenance amount awarded to her be enhanced to Rs. 500/-per month.

Such petition was opposed by the Respondent inter alia on the ground that since the Petitioner had received a sum of Rs. 10,000/ - earlier and had foregone her future right of maintenance, as such, she was not entitled to claim any maintenance from him.

The learned Magistrate vide the impugned order upheld the objection raised by the Respondent and consequently dismissed the petition of the Petitioner by holding that in view of the compromise and the receipt of lump-sum amount of Rs. 10,000/- she is estopped from claiming any further amount towards maintenance.

At the very outset, it may be stated that the impugned order of the learned Magistrate on the face of it, is bad and cannot be sustained. An agreement like the one in the present case is opposed to public policy and as such, it cannot be enforced by the Respondent against his wife-Petitioner thereby dis-entitling her to claim maintenance.

The Supreme Court in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, has held that no settlement of claims which does not have the special statutory right of the divorce u/s 125 can operate to negate that claim. Again in Bhupinder Singh Vs. Daljit Kaur, it has been held that any defence against an order passed u/s 125 must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserted husband, it will operate until vacated or altered in terms of the provisions contained in the Criminal Procedure Code, itself. If the husband has a case u/s 125(4), (5) or Section 127 of the Code, it is open to him to initiate appropriate proceedings. But until the original order of the maintenance is modified or cancelled by a higher Court or is varied or vacated in terms of Section 125(4) or (5) or Section 127, its validity survives, and it is enforceable and no plea that there has been a compromise between the parties can hold good as a valid defence.

A question whether a wife who has voluntarily surrendered her right to maintenance in divorce proceedings would not be entitled to claim subsequently maintenance allowance u/s 125, Code of Criminal Procedure, arose before the Division Bench of the Punjab and Haryana High Court in Ranjit Kaur Vs. Pavittar Singh, The Division Bench following the ratio laid down by the Supreme Court held that the jurisdiction of the Magistrate u/s 125, Code of Criminal Procedure, is not ousted by any agreement between the parties if the facts and circumstances of the case otherwise justify the grant of maintenance. In every case the Magistrate is bound to examine whether there has been neglect or refusal on the part of the husband to maintain the wife. If the Magistrate finds that the wife is being so neglected or so refused to be maintained despite the agreement for grant of maintenance at a particular rate of denying the same, he is duty bound to award appropriate maintenance under this Section. The agreement pleaded being opposed to public policy and against the clear intendment of Section 125, Code of Criminal Procedure, cannot be enforced or be a shield in a Court of law. To the similar effect is the decision in Smt. Shakshi v. Vijay Kant 1998 (1) P.L.R. 684.

In view of the law stated above, it is held that the agreement alleged to have been arrived at between the parties during the execution proceedings whereby the Petitioner is alleged to have received a lump-sum amount of Rs. 10,000/- towards maintenance will not debar her either to enforce the order of maintenance dated 15.12.1990 or in claiming enhancement in the amount of maintenance.

Resultantly, the present petition is allowed. The order dated 1.9.1998 of the learned Additional Chief Judicial Magistrate is set aside and the case is remanded to the learned-Magistrate for proceeding therewith on merits, in accordance with law.

The parties through their counsel are directed to appear before the learned Magistrate on 3rd January, 2000. The record of the case be returned to the concerned Court forthwith, so as to reach well before the date fixed.