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HIGH COURT OF MADHYA PRADESH
N.K. Gupta, J.
Leela Bai v. Ganpati and another
Criminal Revision No.1169 of 2008 (Jabalpur) : against the order dated 31.3.2008, passed by the Additional Sessions Judge, Multai in Criminal Revision No.78 of 2007; Decided on 31.10.2014
(1) Criminal P.C., 1973 -- Ss.125 and 127-- application submitted under -- compromise took place between parties and a lump sum maintenance paid to applicant -- trial Court found evidence of respondent not trustworthy and granted maintenance -- alleged memo of agreement and copy of order-sheets not properly proved before trial Court -- order of Lok Adalat was not an order on merits but was a simple pronouncement of disposal of case on basis of agreement -- wife is entitled to get modification in maintenance order -- Additional Sessions Judge committed error of law in setting aside order passed by trial Court and order suffers from illegality and perversity -- hence set aside -- order of trial Court restored.
Held : The Additional Sessions Judge, Multai has committed an error of law in setting aside the order passed by the trial Court and therefore, the order passed by the revisionary Court cannot be maintained. The applicant was entitled for enhancement in maintenance amount and, therefore, she was competent to move an application for maintenance though she had received a full and final payment towards the maintenance. Under these circumstances, the order passed by the revisionary Court suffers from illegality and perversity and therefore, the revision filed by the applicant can be accepted. The order dated 31.3.2008 passed by the Additional Sessions Judge, Multai is hereby set aside whereas, the order dated 5.5.2007 passed by the JMFC, Multai is hereby restored. 1999(II) MPWN 28 referred to.
(2) Contract Act, 1872 -- S.28 -- any contract taken place which extinguished rights of any party -- such portion which violates statutory provision is void -- agreement took place between parties valid for amount of maintenance and payment but condition for not to ask for further maintenance is violative -- therefore, that portion of contract is void.
Held : If any agreement is done defeating any statute then such an agreement cannot be considered as a valid contract. According to the provisions of section 28 of the Indian Contract Act, 1872 if any contract takes place which extinguishes the right of any party then such portion of the contract which violates the statutory provision is void, which is not enforceable. In the present case, an agreement took place between the parties was valid for the amount of maintenance and payment of maintenance but, the condition that the applicant could not ask for further maintenance was violative to the provisions of section 127 of the CrPC and, therefore, that portion of contract was void under section 28 of the Indian Contract Act.
[Para 9
¼1½ naM+ izfØ;k lafgrk] 1973 && /kkjk 125 rFkk 127 && ds v/khu vkosnu izLrqr fd;k && i{kdkjks ds chp le>kSrk gqvk rFkk ,deq’r Hkj.k&iks”k.k jkf’k vkosfndk dks lanŸk dh xbZ && fopkj.k U;k;ky; us izR;FkhZ dh lk{; dks fo’okl ;ksX; ugh ik;k rFkk Hkj.k&iks”k.k iznku fd;k && vfHkdfFkr djkj dk fooj.k rFkk vkns’k if=dk dh izfr fopkj.k U;k;ky; ds le{k mfpr :i ls lkfcr ugha dh xbZ && yksd vnkyr dk vkns’k xq.kkxq.k ij ugha Fkk cfYd djkj ds vk/kkj ij ekeys ds fuiVkjs dh lk/kkj.k ?kks”k.kk Fkh && iRuh Hkj.k&iks”k.k vkns’k esa ifjorZu djkus dh gd~nkj gS && vij l= U;k;k/kh’k us fopkj.k U;k;ky; }kjk ikfjr vkns’k dks vikLr djus esa fof/k dh Hkwy rFkk vkns’k voS/krk rFkk foi;ZLrrk ls xzLr gS blfy, vikLr fd;k tkrk gS && fopkj.k U;k;ky; dk vkns’k voS/krk rFkk foi;ZLrrk ls xzLr gS blfy, vikLr fd;k tkrk gS && fopkj.k U;k;ky; dk vkns’k izR;kofrZrA vfHkfu/kkZfjr % vij l= U;k;k/kh’k] eqYrkbZ us fopkj.k U;k;ky; }kjk ikfjr fd, x, vkns’k dks vikLr djus esa fof/k dh Hkwy dh rFkk blfy, iqujh{k.k U;k;ky; }kjk ikfjr fd;k x;k vkns’k iksfjr ugha gks ldrkA vkosfndk Hkj.k&iks”k.k dh jde esa o`f) ds fy, gd~nkj Fkh rFkk blfy, og Hkj.k&iks”k.k gsrq lekosnu djus ds fy, l{ke Fkh ;|fi og Hkj.k&iks”k.k gsrq iw.kZ rFkk vafre lank; izkIr dj pqdh FkhA bu ifjfLFkfr;ksa es] iqujh{k.k U;k;ky; }kjk ikfjr vkns’k voS/krk rFkk foi;ZLrrk ls xzLr gS blfy, vkosfndk }kjk nkf[ky iqujh{k.k Lohdkj dh tk ldrh gS vij l= U;k;k/kh’k] eqYrkbZ }kjk ikfjr vkns’k fnukad 31-3-2008 ,rn~}kjk vikLr fd;k tkrk gS tcfd U;kf;d naM+kf/kdkjh izFke Js.kh] eqYrkbZ }kjk ikfjr vkns’k fnukad 5-5-2007 ,rn~}kjk izR;kofrZr fd;k tkrk gSA 1999¼2½ e-iz- ohDyh uksV~Lk 28 fufnZ”VA ¼2½ lafonk vf/kfu;e] 1872 && /kkjk 28 && dksbZ Hkh fd;k x;k djkj tks fdlh Hkh i{kdkj ds vf/kdkjks dks fuokZfir djrk gS ,slk va’k tks dkuwuh mica/k dk vfrØe.k djrk gS ‘kwU; gS && i{kdkjksa ds chp gqvk djkj Hkj.k&iks”k.k dh jde rFkk lank; ds fy, oS/k gS ysfdu vfrfjDr Hkj.k&iks”k.k ds fy, ek¡x u djus dh ‘krZ vfrØe.kh; gS && blfy, djkj dk og va’k ‘kwU; gSA vfHkfu/kkZfjr % ;fn dksbZ djkj dkuwu dks foQy djrs gq, fd;k tkrk gS rc ,slk djkj oS/k djkj ugh ekuk tk ldrkA Hkkjrh; lafonk vf/kfu;e] 1872 dh /kkjk 28 ds mica/kks ds vuqlkj] ;fn dksbZ djkj gksrk gS tks fdlh i{kdkj ds vf/kdkjksa dks fuokZfir djrk gS rc djkj dk ,slk va’k tks dkuwuh miac/kks dk vfrØe.k djrk gS] ‘kwU; gS Tkks fd izorZuh; ugha gSA orZeku ekeys es] i{kdkjks ds chp djkj gqvk tks Hkj.k&iks”k.k dh jde rFkk Hkj.k&iks”k.k ds lank; ds fy, oS/k gS ysfdu ‘krZ fd vkosfndk vfrfjDr Hkj.k&iks”k.k dh ek¡xa ugh dj ldrh] naM+ izfØ;k lafgrk dh /kkjk 127 ds mica/kks ij vfrØe.kh; gSA djkj dk va’k Hkkjrh; lafonk vf/kfu;e dh /kkjk 28 ds v/khu ‘kwU; gSA ¼iSjk 9
1. The applicant has preferred the present revision being aggrieved with the order dated 31.3.2008 passed by the Additional Sessions Judge, Multai in Criminal Revision No.78 of 2007 whereby the order dated 5.5.2007 passed by the JMFC, Multai in MJC No.49/2003 was set aside in which a maintenance of Rs.1000/- per month was granted to the applicant.
2. The facts of the case in short are that, the marriage of the parties took place on 5.5.1983 and after some time the applicant was ousted from the house of the respondent No.1. A compromise took place between the parties and again the applicant resided with the respondent No.1 up to 1996. In the year 1997, the applicant was again sent to the house of her parents. The applicant has filed an application under section 125 of the CrPC on the basis of these facts and with a pleading that the respondent No.1 kept one Munni as a wife in his house and, therefore, the applicant was entitled to get maintenance from him without residing with him. The salary and income of the respondent was pleaded and a maintenance of Rs.2000/- per month was demanded in the application.
3. The respondent No.1 in his reply has submitted that in various proceedings compromise took place between the parties. On 3.11.1996, a compromise took place in MJC No.161/1991 that the applicant received a sum of Rs.18,000/-as a lump sum maintenance and her maintenance application was disposed off in Lok Adalat therefore, now she was not entitled for any maintenance. It is also pleaded that a decree of divorce has already been passed in favour of the respondent No.1.
4. After considering the evidence adduced by the parties, the trial Court granted a maintenance of Rs.1000/- per month to the applicant whereas, the revisionary Court set aside the order passed by the trial Court.
5. I have heard the learned counsel for the parties at length.
6. The only question in the case is that whether theapplicant is entitled to get any maintenance from the respondent No.1, when a compromise took place between them and a lump sum maintenance was paid to the applicant. The learned counsel for the respondent No.1 has submitted that the applicant could get the maintenance after a decree of divorce until she remarries. He has placed reliance on the order passed by the Single Bench of this Court in the case of Leeladhar v. Laxmibai [1999(II) MPWN 28]. It is an admitted position that the applicant was entitled to get maintenance as a divorced wife under section 125 of the CrPC. In the present case, it is to be seen that when the applicant accepted a lump sum of Rs.18,000/- as a full and final maintenance then whether she could file a fresh application of maintenance. The JMFC, Multai found that the evidence given by the respondent/witnesses was not trustworthy and therefore, a maintenance of Rs.1000/- was granted whereas, the revisionary Court found that when a lump sum maintenance was granted to the applicant then shecannot demand any further maintenance.
7. It was pleaded by the respondent No.1 that in MJC 169/1991, a compromise took place between the parties and on the basis of that compromise, on 14.11.1996 the case was disposed off before the Lok Adalat and a lump sum payment of Rs.18,000/- was given to the applicant as maintenance. However, if the entire record of the trial Court is perused then, it would be apparent that copy of the judgment passed by the IIIrd Joint Civil Judge, Senior Division, Nagpur was exhibited to show that the decree of divorce was granted in favour of the respondent but, no order of Lok Adalat is exhibited. However, a plain copy of order-sheet dated 14.11.1996 along with an agreement is placed in ‘B’ file of the trial Court. During the cross-examination of the applicant, such documents were not shown to the applicant and, therefore, the alleged memo of agreement and copy of the order sheets were not properly proved before the trial Court.
8. Order-sheet of a Court or Lok Adalat is a public document which can be ac
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