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IN THE HIGH COURT OF ALLAHABAD
R. K. Shukia, J.
MOHAMMAD YAMEEN - Appellant
Versus
SHAMIM BANO - Respondents
Criminal Misc. Application 754 Of 1981
Decided On : 03/27/1984
MAINTENANCE - SECTION 125 CRIMINAL PROCEDURE CODE - ORDER PASSED BY SESSIONS JUDGE IN TERMS OF COMPROMISE - FINAL AND BINDING - CANNOT BE QUASHED UNDER SECTION 482 CRIMINAL PROCEDURE CODE - DIVORCED WIFE ENTITLED TO MAINTENANCE UNDER SECTION 125 CRIMINAL PROCEDURE CODE - HUSBAND'S RIGHT TO MAINTENANCE CEASES ONLY IF SHE REMARRIES OR LIVES IN ADULTERY OR VOLUNTARILY SURRENDERS HER RIGHT.
Fact of the Case:
Husband filed a petition under Section 482 Criminal Procedure Code to quash the orders passed by the Magistrate and the Sessions Judge granting maintenance to his divorced wife under Section 125 Criminal Procedure Code. The husband contended that the order of the Magistrate was illegal as he did not record evidence and that the order of the Sessions Judge was passed without his authority. He also claimed that his wife was not entitled to maintenance as she had remarried and was employed.
Finding of the Court:
The court found that the order of the Sessions Judge was passed in terms of a compromise between the parties and had become final and binding. It also held that the wife was entitled to maintenance under Section 125 Criminal Procedure Code even though she was divorced, as she had not remarried or lived in adultery. The court further held that the husband's right to maintenance would cease only if she remarried, lived in adultery, or voluntarily surrendered her right to maintenance.
Issues: 1. Whether the order of the Sessions Judge passed in terms of the compromise was illegal and could be quashed under Section 482 Criminal Procedure Code? 2. Whether the divorced wife was entitled to maintenance under Section 125 Criminal Procedure Code? 3. Whether the husband's right to maintenance would cease if the wife remarried, lived in adultery, or voluntarily surrendered her right to maintenance?
Ratio Decidendi: 1. The order of the Sessions Judge was passed in terms of a compromise between the parties and had become final and binding. It could not be quashed under Section 482 Criminal Procedure Code. 2. The divorced wife was entitled to maintenance under Section 125 Criminal Procedure Code even though she was divorced, as she had not remarried or lived in adultery. 3. The husband's right to maintenance would cease only if she remarried, lived in adultery, or voluntarily surrendered her right to maintenance.
Final Decision: The petition was dismissed. The stay order granted by the court was vacated.
( 1 ) BY this petition under section 482 Criminal Procedure Code the applicant has prayed for quashing the orders dated 16. 8. 1979 (Annexure I) passed by Sri Bahoran Singh, Munsif-Magistrate, Meerut in Criminal Case No. 222 of 1978 under section 125 Criminal Procedure Code and alleged order dated 23. 4. 1980 {annexure 4) passed by the learned III Additional Sessions Judge, Meerut in Criminal Revision No. 292 of 1979. It is further prayed that recovery proceedings in case of Mohammad Yameen v. Smt. Shamim Bano under section 127 Criminal Procedure Code pending in the court of the VI Additional Munsif Magistrate, Meerut be stayed during the pendency of this application. It is important to note that copy of the final order dated 1. 5. 1980 passed by the learned Sessions Judge, allowing the revision in favour of the applicant is neither attached with this application nor there is any prayer to quash it.
( 2 ) BRIEF facts of the case are that the opposite party No. 1 Smt. Shamim Bano wife of the applicant filed an application under section 125 Criminal Procedure Code against the applicant in the court of the Judicial Magistrate City, Meerut on 21. 4. 1978, which was allowed on 16. 8. 1979 and Smt. Shamim Bano was granted maintenance allowance at the rate of Rs. 100/-per month since 21. 41978. The applicant preferred a revision against the aforesaid order, which was allowed in bis favour in terms of compromise between the parties (paper No. 8-Ka) on the statements made on their behalf by their respective counsel in presence of their clients, who had seen and signed on the order sheet of Sessions Judge dated 23. 4. 80 of Criminal Revision No. 292 of 1979 wherein the following order was passed: 23. 4. 80: Aj yah nigrani pesh hui. Pakshkar apne. apne vakilon sahit hajir aye. Vakla farikain ka bayan 8-ka likba gaya. Adesh 1. 5. 80 ko sunaya jayaga. Sd. Shamim Baho Sd. Mohd. Yameen. Sd. Illegible III Addi. Sessions Judge.
( 3 ) FOR the sake of convenience the terms of the compromise (paper No. 8-Ka) dated 23. 4. 1980 are also reproduced: Crt. Rev. 292/79, Mohd. Yameen-Smt Shamim Bano: Vakla farikain ne bayan kiya ki Sri Mohd. Yameen, Smt. Shamim Bano ki uski darkhast dhara 125 ki tithi 21. 4. 78 se 20. 4. . 80 tak ka kul mutalba jo 75/-prati mah ke hisab se Rs 1800/- bota hai, ko Rs. 75/-mahwar pichhle wa Rs. 75/-mahwar agami 21. 4. 80 ae yani Rs. 150/-mahwar ada karega. Pichhla Rs. 1800/-ada hone ke bad phir agami Rs. 75/-mahwar ke hisab se ada karta rahega jab tak dhara 127 Criminal Procedure Code koi adesh Nyayalay ka ho, pahli kisht 21. 5. 80 tak ada hogi aur agami isi prakar har mahine ki 21 tarikh tak ki3hten ada hua karengi. Sd. Illegible for applicant Mohd. Yameen 23. 4. 80. Sd. Shamim Bano Identified Sd. Illegible 23. 4. 80 Sd. Illegible III Addi. Sessions Judge, 23. 4. 80.
( 4 ) ON 1. 5. 1980 the following order was passed by the learned Sessions Judge: Counsel for the parties gave the statement 8-Kha that the revision and the petition for maintenance may be decided in terms thereof. Order The revision and the petition for maintenance are decided in terms of the compromise 8- Kha given by the learned counsel for the parties on behalf of their respective clients. The revision stands allowed to that extent and the order passed is modified in terms of B-Ka referred to above. Sd. D;d. Srivastava (D. D. Srivastava) III Addi. Sessions Judge, Meerut. 1. 5. 80.
( 5 ) ON a perusal of the record, it is (ound that thereafter Smt. Shamim,bano. opposite party No. 1 moved an application dated 10. 7. 80 (paper No. 21-Ba) before the Magistrate, wherein she has stated that the learned Additional Sessions Judge, Meerui had mcdi. fied the order to the extent that a sum of Rs. 150/-per month (Rs. 75/-as maintenance for current monthly and Rs. 75/- for arrears) would be paid monthly. The first instalment Was to be paid on 21. 5. 80 and the second instalment by 21. 6. 80. Mohd. Yameen has not paid any money so far. She prayed that w
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