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1994 Supreme(Cal) 124
High Court Of Calcutta
NRIPENDRA KUMAR BHATTACHARYYA
JOYDEL KUMAR BISWAS - Appellant
Versus
MADURI BISWAS - Respondent
CRI. R. 579 Of 1993
Decided On : 04/11/1994
A.GANGULY, ANANDA MOHAN BISWAS, DIPAK SENGUPTA
A compromise between parties in an application under Section 125, Cr. P. C. does not operate as a bar for an application under Section 127 of the Cr. P. C.
Headnote:
MAINTENANCE - SECTION 127 - SECTION 125 - CHANGE IN CIRCUMSTANCES - COMPROMISE - ESTOPPEL - WAIVER - PUBLIC POLICY - INDIAN CONTRACT ACT, SECTION 23 - A compromise between parties in an application under Section 125, Cr. P. C. does not operate as a bar for an application under Section 127 of the Cr. P. C.
Fact of the Case:
The wife filed an application under Section 127, Cr. P. C. for enhancement of maintenance allowance from Rs. 100/- to Rs. 400/- per month. Earlier, upon an application under Section 127, Cr. P. C. the matter was compromised between the parties, and the husband agreed to pay Rs. 100/- per month as maintenance. The husband challenged the maintainability of the second application under Section 127, Cr. P. C., arguing that it was barred by the principles of estoppel and waiver.
Finding of the Court:
The court held that the compromise between the parties in the earlier application under Section 127, Cr. P. C. did not operate as a bar for the wife's subsequent application under Section 127, Cr. P. C. The court relied on the provisions of Section 127(1), Cr. P. C., which allows for alteration of maintenance allowance upon proof of a change in circumstances. The court also held that the wife's right to maintenance under Section 125, Cr. P. C. could not be bartered away or negated by an agreement between the parties, as such an agreement would be against public policy and void under Section 23 of the Indian Contract Act.
Issues: Whether the compromise between the parties in the earlier application under Section 127, Cr. P. C. operated as a bar for the wife's subsequent application under Section 127, Cr. P. C.
Ratio Decidendi: The court held that the compromise between the parties in the earlier application under Section 127, Cr. P. C. did not operate as a bar for the wife's subsequent application under Section 127, Cr. P. C. The court relied on the provisions of Section 127(1), Cr. P. C., which allows for alteration of maintenance allowance upon proof of a change in circumstances. The court also held that the wife's right to maintenance under Section 125, Cr. P. C. could not be bartered away or negated by an agreement between the parties, as such an agreement would be against public policy and void under Section 23 of the Indian Contract Act.
Final Decision: The court dismissed the husband's revision application.
( 1 ) THE present revision is directed against the judgment and order dated 6-1-1993 passed in Misc. Case No. 535 (IV)/ 91 by the learned Judicial Magistrate, 1st Class, Krishnanagar, 4th Court, Nadia upon an application under S. 127, Cr. P. C. enhancing the maintenance allowance of the wife opposite party from Rs. 100/- per month to Rs. 400/ -.
( 2 ) THE short background of the case is that the petitioner-opposite party No. 1 is the married wife of the petitioner herein and out of the wedlock a daughter was born. The petitioner failed and neglected to maintain the wife-opposite party and the daughter and for that the wife-opposite party No. 1 herein filed a petition under S. I25, Cr. P. C. before the court of the Sub-Divisional Judicial Magistrate, Krishnanagar Nadia and a case being No. 133 (IV) of 1978 was registered in that court and the learned Magistrate by his order dated 12-6-1980 allowed the application of the wife and directed the husband to pay Rs. 100/- per month to the wife and Rs. 75/- per month to her daughter as maintenance. The order was challenged before this Hon'ble Court and this Hon'ble Court by the judgment dated 16-4-1984 in Criminal Rev. 1117 of 1980 modified the order of the learned Sub-Divisional Judicial Magistrate by granting maintenance allowance to the wife and the minor daughter at the rate of Rs. 150/- per month instead of Rs. 175/- per month as was directed by the learned Magistrate.
( 3 ) THEREAFTER the wife made an application under S. 127, Cr. P. C. against the husband for modification of the order of the maintenance praying for enhancement of the said maintenance and ultimately on compromise it was settled that the petitioner shall pay Rs. 6, 000/- for the marriage of his daughter and he shall also go on paying maintenance allowance of Rs. 100/- per month to the wife. Sometime thereafter the wife-opposite party No. I herein made a second application under S. 127 of the Code of Criminal Procedure praying for modification of the order of maintenance by enhancing the maintenance allowance from Rs. 100/- to Rs. 400/- per month and that prayer was allowed by the learned Magistrate by his order and judgment dated 6-1-1993. The husband has challenged this judgment and order in this revision and also prayed for quashing of the proceeding. 1t will be appropriate to mention here that the said order was passed in Misc. Case 535 (IV); 91.
( 4 ) THE sole contention which was raised before the trial court has been raised here by Mr. A. Biswas, learned Advocate for the husband-petitioner. According to him as there was a compromise between the husband and the wife upon hearing an application under S. 127, Cr. P. C. earlier the second application under S. 127, Cr. P. C. by the wife is not maintainable and that is barred by the principles of estoppel and waiver. Mr. Biswas, learned Advocate though took time to place authority in support of his contention but submitted that in spite of his best effort he could not find out any authority on the point.
( 5 ) MR. Dipak Sen Gupta, learned Advocate for the wife-opposite party No. 1 herein, on the other hand, contended that there cannot be any estoppel against the Statute and also the question of waiver does not come as it directly militates against S. 23. of the Indian Contract Act as it is against the public policy. In support of his contention Mr. Sen Gupta placed reliance on a Madras decision in the case of Padmanabham v. Bama, reported in 1988 Cri LJ 1386. He also placed reliance on another decision in the case of Ranjit Kaur v. Pavittar Singh reported in 1992cri LJ 262 (Punj and Har ).
( 6 ) AFTER hearing the submissions of the learned Advocate for the parties and considering the materials on record I am unable to accept the contention as raised by Mr. Biswas, learned Advocate for the following reasons.
( 7 ) SUB-SECTION (1) of S. 127,cr. P. C. reads as follows "on proof of a change in the circumstance of any person, re
