Mukesh Kumar Verma vs State of U.P. and Others

A.K. Roopanwal, J.—This application u/s 482, Cr.P.C. has been moved for quashing the order dated 22.9.05 passed by the Additional Sessions Judge, Court No. 3, Rampur (Annexure-24 to the affidavit filed with the application) and also the orders dated 27.4.02 and 15.9.03 passed by the trial court in case No. 454/02, Smt. Seema Verma v. Mukesh Verma and Ors. dated 7.2.04 and 15.6.04 passed in criminal revision No. 316/03 and order dated 15.6.04 passed in criminal misc. application No. 2/04.

The brief facts giving rise to this application are as under:

An application u/s 125, Cr.P.C. was filed by Smt. Seema Verma against her husband Mukesh Kumar Verma on 18.3.02. In this application a compromise was filed by the parties on 23.4.02. By this compromise it was agreed upon between the parties that the husband would not demand any dowry in future and would keep the applicant Smt. Seema Verma with him as his wife. If he fails to keep her as his wife then the wife would be entitled to a maintenance of Rs. 5,000/- p.m. from the date of the petition u/s 125, Cr.P.C. i.e. 18.3.02. On the basis of this compromise the trial court decided the application u/s 125, Cr.P.C. vide order dated 27.4.02. Later on an application u/s 125(3), Cr.P.C. was moved by the wife, Smt. Seema Verma alleging thereby that the husband did not comply with the conditions of the compromise, he neither kept her with him nor paid any maintenance. A prayer was made by her that she be paid maintenance allowance from 18.3.02 at the rate of Rs. 5,000/- p.m. as per compromise decree. This amount was Rs. 65,000/-.

The husband also blamed the wife for not complying with the terms and conditions of the compromise and he moved an application u/s 126(2), Cr.P.C. on 27.3.03 for setting aside the order dated 27.4.02 passed by the court below on the application u/s 125, Cr.P.C. It was alleged by the husband that his wife never came to him inspite of the several request made by him and therefore, it was necessary to set aside the order dated 27.4.02 and to decide the case on merits. This application of the husband was rejected by the trial court vide order dated 15.9.03. In the opinion of the court order dated 27.4.02 was not an exparte order and therefore, the application u/s 126(2), Cr.P.C. moved by the husband was not maintainable. The husband challenged the orders dated 27.4.02 and 15.9.03 by a revision which was registered as Criminal Revision No. 316/03, Mukesh Kumar Verma v. Smt. Seema Verma. This revision was decided by the Additional Sessions Judge, Court No. 3, Rampur vide order dated 7.2.04. The revision was dismissed and both the orders dated 27.4.02 and 15.9.03 were maintained. Against the order dated 7.2.04 an application for setting it aside was moved which was rejected by the same Sessions Judge on 15.6.04.

The husband being aggrieved came to the High Court and filed an application u/s 482, Cr.P.C. which was numbered as 5512/04, Mukesh Kumar Verma v. State of U.P. and Ors. This application was allowed by the High Court on 13.4.05 and orders dated 7.2.04 and 15.6.04 passed by the Sessions Judge concerned were set aside and the matter was remanded back to the Sessions Judge for afresh decision. This order was a conditional order on the condition that the husband deposits a sum of Rs. 65,000/- in the court of the Additional Sessions Judge, Court No. 3, Rampur. The husband deposited the amount as per directions of the High Court. Thereafter, the matter was heard and decided by the Sessions Judge after giving opportunity of hearing to both the parties. The Sessions Judge again dismissed the revision No. 316/03, Mukesh Kumar Verma v. Smt. Seema Verma vide order dated 22.9.05. In the opinion of the Sessions Judge the compromise in the case u/s 125, Cr.P.C. was voluntarily filed by the parties and was not based on any fraud committed upon the husband. Accordingly, the order dated 27.4.02 passed on the basis of this compromise was held to be a good order.

The Sessions Judge was also of the opinion that as the order dated 27.4.02 was not an exparte order, hence, the application moved by the husband u/s 126(2), Cr.P.C. was not maintainable and was rightly rejected by the trial court vide order dated 15.9.03.

Feeling aggrieved by the order dated 22.9.05 and all the above mentioned orders passed against the applicant by the trial court as well as by the revisional court he has come before this Court.

I have heard Mr. K.K. Mishra, learned Counsel for the applicant, Mr. B. Yadav for O.P. Nos.2 & 3, learned AGA for the State and perused the record.

Mr. Mishra argued that even if it be assumed that the compromise dated 23.4.02 was not based on fraud committed upon the husband, the application moved by the husband for setting aside the compromise decree dated 27.4.02 on the basis of such compromise was liable to be set aside as the wife had not complied with the terms of this compromise. According to him, it was the admitted case of the parties that they are living separately and in view of this matter, the wife can be granted maintenance only when she has sufficient ground to live separately. If it is found that she does not have a sufficient ground to live separately, she cannot be found entitled to get maintenance irrespective of the compromise decree and his application u/s 125(3), Cr.P.C. was liable to be rejected and the husband was entitled not to pay maintenance to her. As the above main question has not been decided by the trial court as well as by the revisional court, hence, all the orders passed against the husband (applicant) are liable to be quashed and the application u/s 482, Cr.P.C. is liable to be allowed.

By virtue of Section 125(4), Cr.P.C. a wife is not entitled to maintenance if she lives separately without sufficient reason and she could be found entitled to maintenance only when it was found that she was living separately for sufficient reasons, therefore, if the husband came with an allegation that the wife is living separately without sufficient reasons, then his application should not have been rejected merely on technical ground that this application was not maintainable u/s 126(2), Cr.P.C. as the order dated 27.4.02 was not an exparte order. In every order of maintenance the condition is inbuilt that the wife shall be entitled to maintenance only if she lives separately on sufficient reasons and thus, being the primary question to be decided should not have been lost sight of by the trial court as well as by the Sessions Court while deciding the application of the applicant moved for setting aside the order dated 27.4.02.

From the orders referred to above it is very much apparent that the trial court as well as the Sessions Court have not decided at all as to whether the wife is living separately with or without sufficient reason, hence, the application moved by the applicant u/s 126(2), Cr.P.C. on 23.7.03 for setting aside the order dated 27.4.02 has wrongly been decided by the trial court and the revisional court has also wrongly dismissed the revision on 22.9.05. Therefore, in view of the above, I feel it expedient to set aside the order dated 22.9.05 and 15.9.03 and to send the matter for reconsideration by the trial court.

Accordingly, the present application u/s 482, Cr.P.C. is allowed. Order dated 15.9.03 passed by the trial court on the application u/s 126(2), Cr.P.C. moved by the applicant and the order dated 22.9.05 passed by the revisional court are set aside. Matter is remanded back to the trial court to decide the application u/s 126(2), Cr.P.C. moved by the applicant in the light of the observations made above. The trial court is expected to decide this application as expeditiously as possible preferably within a period of 2 months from the date of the receipt of the certified copy of this order. Both the parties shall have an opportunity of hearing regarding this application.