Maintenance rights under Section 125 of the Criminal Procedure Code are statutory and cannot be waived through mutual agreements, protecting the interests of both divorced spouses and their children.

ORDER :

J. C. DOSHI, J.

1. The petitioner in this petition filed under Article 227 of the Constitution of India prays for following reliefs :

(a) Your Lordships may be pleased to admit and allow the present petition;

(b) Your Lordships may be pleased to quash and set aside the impugned order dated 31.3.2017 passed by the Principal Judge, Family Court at Rajkot in Cr.M.A no.815 of 2013 Annexure-A;

(c) Your Lordships may be pleased to remand back the matter and direct the Family Court at Rajkot to hear the matter afresh and also consider also to consider the evidence that may be produced by the petitioner;

(d) Pending the admission, hearing and final disposal of this petition, be pleased to stay the further execution, implementation and operation of impugned order dated 31.3.2017 passed by the Principal Judge, Family Court at Rajkot in Cr.M.A no.815 of 2013 Annexure-A;

(b) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice.

2. The factual aspects necessary to decide this petition are as under :

2.1 The marriage between the petitioner and respondent to.2 had been solemnized at Bhavnagar on 25.6.1999 and out of the said wedlock they had two children one being girl Vidisha aged 13 years and boy aged Dharmanshu aged 10 years. It is stated that initially both were residing happily together after sometime, they both have decided to leave each other due to minor altercation and the respondent no.2 went to Rajkot at her parental home in the year 2007 and since then they are residing separately.

2.2 It is submitted that after one year of the separation, the respondent no.2 had filed the complaint against husband and all other family members u/s.498 of the Cr.P.C. with Bhavnagar B division police Station being I-CR no.123/2008.

2.3 It is submitted that the husband as well a as other family members had filed quashing petition before this Honourable Court being Cr.M.Ano.11624 of 2008 which by order dated 20.9.2013 had been pleased to allow by the consent of the respondent no.2.

2.4 It is further submitted that the present petitioner had also filed the quashing petition being Cr.M.A.no.3912 of 2013 and this Honourable Court was pleased to stay the proceedings against the present petitioners by order dated 24.9.2013.

2.5 It is stated that in the year 2009, the respondent no.2 had also filed an maintenance u/s.125 of application for Cr.P.C. being Cr.M.A. no.43 of 2009 before the Family Court, Rajkot. It is submitted that both the parties had filed an application for divorce u/s.13-B of HINDU MARRIAGE ACT on 26.4.2012 being Family Suit no.99 of 2012 before Family Court at Rajkot and on the same date, both had also made a customary divorce before the notary. It is submitted that as in the the divorce petition, respondent no.2 had filed an affidavit stating that the disputes between her and the petitioner are now settled and she had waived her rights and with an understanding that the custody of both the children to be kept with her.

2.6 It is submitted that the divorce petition filed by the parties came to be allowed vide order dated 26.6.2013 and from the said order, it is clear that the wife had waived her right for permanent alimony. It is further submitted that pursuant to the settlement, the respondent no.2 had withdrawn the maintenance application being Cr.M.A. no.43 of 2009 on 26.4.2012.

2.7 It is submitted that after 1 ½ year, once, again the respondent no.2 had filed an application for maintenance before the family court, Rajkot being Cr.M.A. no.815 of 2013.

2.8 It is submitted that the petitioner had appeared before the family court and had given his reply at Exh. 12 and had clearly stated that as per the settlement, she had