S. R. BANNURMATH, J.

( 1 ) THIS petition is filed challenging the order dated 29-4-2000 passed by the Judicial Magistrate First Class, Basavana Bagewadi. In Cr. Misc. No. 88 of 1997 awarding monthly maintenance at the rate of Rs. 300/- to the 1st respondent/wife and Rs. 100/- to the 2nd respondent/minor daughter as well as the order dated 6-10-2001 passed by the Principal Sessions Judge, Bijapur, in Cri. R. P. No. 131 of 2000 affirming the same.

( 2 ) THE main grievance of the petitioner/husband is that, though there is no dispute regarding his relationship with the respondent as well as his liability to pay maintenance, in an earlier petition, viz. , Crl. Misc. No. 40 of 1987 both the parties had entered into a compromise on 30-9-1988 in which the respondents had agreed to give up their entire claim of maintenance on receipt of a lump sum amount of Rs. 9,000/- as full and final settlement of the maintenance claim and as such the present petition once again claiming maintenance is illegal. It is contended that, as long as the respondents have not got the earlier compromise order cancelled and as long as it is not contended that the petitioner has committed any fraud, coercion or misrepresentation against the respondents while entering into the compromise, the same is binding on her and as such the respondents are not entitled to a fresh maintenance.

( 3 ) ON the other hand, learned counsel for the respondents appearing for the respondents relying on the pronouncement of the Hon'ble Supreme Court in the case Bai Tahira v. Ali Hussain Fissalli Chothia, AIR 1979 SC 362 and the decision of the Andhra Pradesh High Court in the case Daniatram Vyas v. Smt. Saraswati Bai (1978 Cri LJ 806) contended that the obligation to pay maintenance under S. 125 of the Criminal Procedure Code is a statutory obligation and it cannot be bartered by any agreement between the parties as long as the need is, within the four corners of S. 125, Cr. P. C.

( 4 ) ON consideration of the rival contentions of the learned counsel on both sides, the question which is required to be considered is "whether wife who has voluntarily surrendered her right to maintenance would not be entitled to claim maintenance subsequently under S. 125, Cr. P. C. once again. "

( 5 ) TO appreciate and answer the question posed one has to look into the scope and object of S. 125, Cr. P. C. especially sub-section (1) thereof. Section 125 (1), Cr. P. C. does obligate a person having sufficient means to maintain the person specified in Cls. (a) to (d) in case where his neglect or refusal to pay such maintenance on his part is established. It is well established law as declared by the Hon'ble Supreme Court in a catena of decisions, right to claim maintenance is a statutory right which the Legislature has created irrespective of the nationality, caste or creed of the parties. As held by the Apex Court in the case Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807. This provision is a measure of social justice and specially enacted to protect woman and children and falls within the constitutional sweep of Art. 15 (3) reinforced by Art. 39 of the Constitution. Therefore, it is clear that the statutory liability imposed under S. 125, Cr. P. C. is distinct from the liability under any other law. Wherever it is proved to the satisfaction of the Court that there is refusal or neglect on the part of a husband to maintain his wife, children or parents, the Court is bound to provide maintenance. The effect of S. 125, Cr. P. C. is to create a fundamental and natural duty of a man towards his wife, children and parents who are unable to maintain themselves. The object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support. This right being a right to survival or livelihood essentially survives and lives every mome

Click Here to Read the rest of this document