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2013 Supreme(UK) 223
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice U.C. Dhyani
ARASHAD – Revisionist
Versus
ADDL. FAMILY JUDGE & ORS. – Respondents
Criminal Revision No. 31 of 2007
Decided on : 11.06.2013
For the Revisionist :Mr. Siddhartha Sah, Advocate
For the State : Mr. P.S. Saun, AGA
For the Respondents No. 1 & 2:Mr. Piyush Garg, Advocate
Headnote:(A) Criminal Procedure Code, 1973, Sec. 127 — Proceedings under — Enhancement in the maintenance allowance — Held that the Court has ample jurisdiction to alter amount of monthly allowance u/s 127, Cr.P.C. (Para 11)
(B) Criminal Procedure Code, 1973, Sec. 125 — Claim for maintenance under — Barring of — Held even if the husband had made lump sum payment to his wife in the proceedings of divorce by mutual agreement — Then, also the wife was not debarred from claiming maintenance u/s 125, Cr.P.C. (Para 10)
(C) Criminal Procedure Code, 1973, Secs. 125 and 127 — In the instant case, the children were not party to the earlier proceedings between the husband and wife — Later wife claimed maintenance allowance for her daughters that was allowed by the learned court below — Held that if the husband and wife entered into an out of court settlement between them — Then same will not estop the daughters from claiming maintenance allowance from their father — Also, it is the fundamental principle of law that no compromise can take place, which is adverse to the interest of a minor — And even if a compromise took place on behalf of minor daughters, the same carries no meaning, if the compromise is prejudicial to their interest — In other words, the minor daughters are entitled to claim maintenance from their father, on their own right — No infirmity and illegality in the impugned order. (Paras 12, 13)
¼v½ n.M izfØ;k lafgrk] 1973] /kkjk 127 & dk;Zokgh & Hkj.k iks”k.k HkÙks esa o`f) & /kkfjr fd U;k;ky; ds ikl iw.kZ vf/kdkfjrk fd og ekfld HkÙks dh jkf’k dks cny lds u/s 127, Cr.P.C. ¼izLrj 11½
¼c½ n.M izfØ;k lafgrk] 1973] /kkjk 125 & Hkj.k iks”k.k ds fy, nkok & oftZr & /kkfjr vxj ifr }kjk ,d eq’r jkf’k vnk dj nh xbZ gks iRuh dks fookg foPNsnu dk;Zokgh esa vkilh le>kSrs ls rc Hkh iRuh }kjk Hkj.k iks”k.k dk nkok u/s 125, Cr.P.C. oftZr ughaA ¼izLrj 10½
¼l½ n.M izfØ;k lafgrk] 1973] /kkjk 125 vkSj 127 & izLrqr okn esa ifr&iRuh ds eè; dk;Zokgh esa cPps i{kdkj ugha Fks & ckn esa iRuh us viuh csfV;ksa ds fy, Hkj.k iks”k.k dk nkok fd;k tks fd ekuuh; fupyh vnkyr }kjk LohÑr & /kkfjr fd vxj ifr iRuh ds e/; U;k;ky; ds ckgj O;oLFkkiu gksrk gS] rc ;g csfV;ksa ds fy, foca/ku ugha] firk ls Hkj.k iks”k.k HkÙkk dk nkok djus ds fy, ;g ekSfyd fof/k dk fl)k¡r gS fd dksbZ le>kSrk lEHko ugha tks fd vo;Ld ds fgr ds izfrdwy gks & vkSj vxj le>kSrk vo;Ldksa dh vksj ls fd;k x;k gks rc ;g vFkZghu gS] vxj ;g le>kSrk muds fgr ds izfrdwy gks & ;kfu fd vo;Ld csfV;k¡ gdnkj Fkha vius firk ij Hkj.k iks”k.k nkok djus ds fy, & ikfjr vkns’k esa dksbZ v’kDrrk ;k voS|rk ughaA ¼izLrj 12] 13½
Hon’ble U.C. Dhyani, J. (oral)
Km. Sabia and Km. Sabnam, both daughters of Arshad Hasan, moved an application before the Addl. Judge, Family Court, Roorkee, through their guardian mother (Smt. Mohsina) for awarding the maintenance. Such an application was directed against Arshad Hasan, father of Km. Sabia and Km. Sabnam and husband of Smt. Mohsina, the guardian. It was stated, among other things, in the application that both the daughters were living under the guardianship of their mother in village Dandera, District Haridwar. Sabia passed class V and Sabnam passed class I. They were residing with their mother since birth. Opposite Party (father) Arshad Hasan was a tailor working in Saudi Arabia. His monthly income was Rs. 20,000/- per month. When he comes to Haridwar, then also he earns Rs. 10,000/- per month. The daughters of the opposite party are not inclined to stay with their father. They are minor. The mother of the daughters has no means of livelihood and therefore, maintenance allowance was sought from the opposite party, who is father of the applicant daughters.
2. The move of the applicant was contested by the opposite party, who filed written statement, stating therein, inter alia, that he is a labourer and has no means of his livelihood. The applicant has deliberately avoided making the daughters party to the petition. The opposite party also said that Smt. Mohsina received a sum of Rs. 45,000/- for the maintenance of her daughters.
3. The applicants, by way of objections, stated that the mother of the daughters received a sum of Rs. 45,000/- by the directions dated 05.09.2003 of the Court. No compromise could be done against the interest of the minor children. Even if there was any out of court settlement between Smt. Mohsina and Arshad Hasan, the same has no binding effect upon the applicant daughters.
4. The court below after considering the pleadings of the parties coupled with the evidence, came to the conclusion that the minor daughters are entitled to maintenance from their father (opposite party). The application under Section 125 of Cr.P.C. was allowed. The opposite party was directed to pay Rs. 600/- per month (Rs. 300/- each to each daughter) as maintenance allowance. The order was made effective from the date of passing of the order i.e. 12.12.2006. Aggrieved against the impugned order, present criminal revision was preferred by the opposite party Arshad (revisionist).
5. Learned counsel for the revisionist drew attention of this Court towards the order dated 16.07.2004, passed by the court below in the proceedings under Section 125 of Cr.P.C. initiated by Smt. Mohsina against Arshad Hasan. It may be noted here that the daughters of Smt. Mohsina were not party to the proceedings, which terminated on 16.07.2004, by way of out of court settlement between the parties. In those proceedings, a compromise was entered into between the estranged husband and wife. It was agreed between them that the wife would not be entitled to any maintenance allowance from her estranged husband. Subsequently, application under Section 125 Cr.P.C. was moved on behalf of the daughters of Smt. Mohsina, in which learned court below directed the opposite party to pay maintenance allowance of Rs. 600/- per month to them (daughters) from the date of passing of the order i.e. 12.12.2006.
6. The moot question is –whether the out of court settlement entered into between the wife and husband will also bind their daughters, so far as the payment of maintenance allowance to them is concerned? While learned counsel for the revisionist submitted that once the parties have entered into compromise, the said issue cannot be agitated time and again, learned counsel for respondents no. 2 and 3 submitted that Section 125 of Cr.P.C. is a welfare legislation and their interest cannot be compromised.
7. Learned counsel for the revisionist also drew attention of this Court towards the ruling of Sailendra Narayan vs State of Orris
