Criminal Writ Petition No.524 of 2005

19th June, 2013

Petitioner Counsel: Mr S.V. NATU
Respondent Counsel: Mr V.B. THOMBRE, Mr B.V. WAGH

Cases Cited:
Bhupinder Singh Vs. Daljit Kaur, AIR 1979 SC 442 [Para 3]

JUDGMENT

JUDGMENT :- The petitioner (husband) in maintenance proceedings M.A.No.105 of 2004 prays to quash and set aside order dated 1.9.2005 passed below Exh.14 by the learned Judicial Magistrate, First Class, II Court, Shelgaon.

2. Petitioner - Pandurang and respondent - Savita are husband and wife, respectively and Archana - respondent No.2 is their daughter. It appears that respondent No.1 Savita had filed an application under Section 125 of the Cr.P.C. bearing No.14/1994, which was allowed and maintenance was granted in the sum of Rs.200/- for wife and Rs.100/- for daughter. It is case of the petitioner that husband and wife during the interregnum period entered into compromise, whereby both of them decided to cohabit each other while wife had surrendered her right to claim maintenance and also agreed to withdraw prosecution under Section 496 read with Sec.500 of Indian Penal Code. It is submitted on behalf of petitioner that petitioner-husband had agreed to sell a plot situated at Chitegaon, Aurangabad, which was in the name of his father to the applicant - wife Savita. Under these circumstances, petitioner and his wife had filed compromise at Exh.8 in Misc.Cri.Application No.74/1997 in the Court of Judicial Magistrate, First Class, Shevgaon. Learned Judicial Magistrate, First Class, Shevgaon, on 22.9.1997 had passed following order :

"Applicant and opponent both are present before court alongwith her advocate. They filed compromise at Exh.8 and admit its contents. Hence, application is disposed of in view of compromise."

The contention on behalf of petitioner is that the earlier order passed under Section 125 of Cr.P.C. is, therefore, not subsisting and further according to petitioner, wife left her matrimonial home and started residing separately. Therefore, she is not entitled to move for alteration of maintenance allowance under Section 127 of Cr.P.C. Learned Advocate for the petitioner, therefore, submitted that the impugned order below Exh.14 in M.A.No.105/2004 rejecting the application of the petitioner raising dispute as to maintainability of the application filed by respondent-Savita under Section 127 of Cr.P.C. is not sustainable.

3. While according to learned Advocate for the respondents since earlier, learned Judicial Magistrate, First Class had granted maintenance and did not cancel that order notwithstanding the compromise praecipe filed before learned Judicial Magistrate, First Class, it was open for the respondents to bring change in the circumstances, to the notice of the learned Magistrate granting maintenance so as to pass an appropriate order in respect of the claim of the respondent - wife and her daughter. Learned Advocate for the respondent brought to my notice ruling in Bhupinder Singh v. Daljit Kaur, reported in AIR 1979 SC 442, in which Honourable Supreme Court observed thus :

"7. We are concerned with a Code which is complete on the topic and any defence against an order passed under S.125, Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under S.125 (4), (5) or S.127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Section 125 (4) or (5) or S.127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the4 parties can hold good as a valid defence. In this view, we hold that the decisions cited before us in favour of the proposition contended for by the petitioner are not good law and that the view taken by Sir Shadi Lal Chief Justice is sound.

8. A statutory order can ordinarily be demolished only in terms of the statute. That being absent in the present case the Magistrate will execute the order for maintenance. Our order does not and shall not be deemed to prejudice the petitioner in any proceedings under the law which he may start to vacate or vary the order for maintenance. Leave refused."

The observations would indicate that subsequent cohabitation between the husband and wife or the fact of compromise between them cannot be held as valid defence, when wife has sought alteration in the maintenance allowance granted earlier because judicial order once passed will operate until it is cancelled or modified or varied. In the present case, order referred above dated 22.9.1997 only record the fact that compromise was filed by parties with their Advocates at Exh.8 admitting its contents, but the application was simply disposed of in view of compromise. The order does not indicate as to whether the learned Magistrate had cancelled or modified or altered earlier order granting maintenance under Section 125 of Cr.P.C. Looking to the ruling in Bhupinder Singh cited on behalf of the respondents, one cannot dispute that Section 125 of Cr.P.C. is a provision protecting neglected wife. The relief is available against deserting husband and order granting maintenance will have to operate until it is vacated or altered in terms of the provisions of Criminal Procedure Code itself. The petitioner could have moved application under Section 125 (4) or under Section 125 (5) or under Section 127 of Cr.P.C. to get the order cancelled in view of the compromise purshis but that was not done in this case. Therefore, the validity of the order granting maintenance must be held as subsisting and enforceable, of course the learned Judicial Magistrate, First Class can inquire about the period of cohabitation in the interregnum between husband and wife so as to exclude such period from enforceability of the order. Learned Magistrate may also consider the effect of compromise between husband and the wife to decide as to whether it would amount to valid defence for the husband to claim exemption from liability to pay the maintenance. Section 127 of the Cr.P.C. allows learned Magistrate to consider the evidence regarding change in the circumstances so as to alter the earlier order or modify the same to meet the ends of justice. Suffice it to say that a party cannot be allowed to take advantage of its own wrong.

4. In view of the above ruling, contention on behalf of the petitioner that earlier order granting maintenance lasted only until filing of the compromise on 22.9.1997 in the Court of Judicial Magistrate, First Class, Shevgaon cannot be accepted for the reasons stated above. No fault can be found with the impugned order rejecting the application challenging maintainability thereof. Hence petition is dismissed. Rule discharged. Interim relief is vacated. Learned Magistrate shall dispose of the proceeding under Sec.127 of Cr.P.Code on merits and in accordance with law. Petition stands disposed of accordingly.

Petition dismissed.