DHANESWAR DAS v. SULOCHANA DAS — 1994 DIGILAW 298 (ORI)

P. C. NAIK, J. ( 1 ) THIS order shall also govern the disposal of Criminal Revision No. 534/91 Dhaneswar Das v. Saraswati Das. The present proceedings arise out of a proceeding for maintenance initiated by Opposite Parties 1 and 2 before the court Of the Judicial Magistrate, 1st Class, Bhadrak. The facts giving rise to this petition are not disputed and are hereinafter stated. ( 2 ) SARASWATI Das for self and on behalf of her minor daughter Sulochana Das filed an application under section 125 of the Code of Criminal Procedure against the petitioner for maintenance. According to her, she was married to opposite party in the year 1977 in accordance with Hindu rites and customs and out of this wedlock, opposite party NO. 2 Sulochana was born. It is further averred that the parties lived as a family in the matrimonial home till 1989. Thereafter as the petitioner took a mistress, the opposite parties were ill-treated and driven out of the matrimonial home. Since then, she along with her daughter is staying in her parental home. Alleging that the petitioner has agricultural fields and an income of about Rs. 30,000/-peryear, the petitioner prayed that maintenance at the rate of Rs. 600/- per month be awarded to her and her daughter. ( 3 ) THE claim for maintenance was resisted by the petitioner herein (who is the opposite party in the 125 Cr. P. C. proceeding ). According to him, he was never married to Saraswati who it is alleged does not bear a good character and has therefore filed a false case against him. The petitioner alleges that he is married to one Sumitra Das, daughter of Bansidhar Pas of Bilana Sasan and out of that wedlock, he has 3 sons and one daughter who are living with him. He denies that he has agricultural land and submits that he is earning his livelihood by working as a labourer. ( 4 ) BOTH the parties adduced evidence in support of their respective contentions. On the basis of the material on record, the learned Trial Magistrate held that the petitioner had, in fact, married one Sumitra Das some times in the year 1973 and, as such, his marriage with Saraswati was null and void and she not being a legally married wife of the petitioner was not entitled to claim any maintenance from the petitioner. However, on a finding that the petitioner was the father of Sulochana, she was held entitled to maintenance. The petitioner was accordingly directed to pay a sum of Rs. 150/- per month as maintenance to Sulochana Das. Aggrieved by the order awarding maintenance to Sulochana, the petitioner preferred a revision before the Additional District and Sessions Judge, Bhadrak which was registered as Criminal Revision No. 18 of 1990. Likewise, against the order rejecting her claim for maintenance, Saraswati preferred a revision before the Additional Sessions Judge, Bhadrak which was registered as Criminal Revision No. 23 of 1990. ( 5 ) DURING the pendency of the Criminal Revisions a compromise was effected between the parties on 18. 5. 1991 to the following effect. That is in Oriya but an English translation thereof has been placed on record by the learned counsel for the petitioner. The relevant extracts read as under:1. The petitioner - Dhaneswar Das is paying in court Rs. 5,250/- towards the maintenance, marriage expenses and other expenses of opposite party No. 2 Sulochana Das, and in view of the fact that the opposite party NO. 2 being a minor is residing under the guardianship of opposite party No. 1, Saraswati, the opposite party NO. 1 on behalf of the opposite party No. 2 had received this Rs. 5,250/- in court in cash. 2. The opposite party No. 2 has no further right of maintenance against Dhaneswar Das and she cannot put forth any sort of claim against the petitioner in future, and in case he puts forth such claim either directly or through anybody else, such claim would not be entertained in view of this compromise. 3. The opposite party No. 1 has no right of maintenance or any other type of claim against the petitioner. The opposite party No. 1 gives up all her claim against the petitioner. 4. The Criminal Revision No. 23/90 filed by the opposite party No. 1 in this Court is hereby withdrawn in view of this compromise, and the judgment delivered by the lower court as against opposite party No. 1 is hereby confirmed. 5. In view of this compromise hence forward there is no relationship whatsoever in between the petitioner and the opposite parties. 6. 5. In view of this compromise hence forward there is no relationship whatsoever in between the petitioner and the opposite parties. 6. We, the petitioner and the opposite parties after fully understanding all the terms and import of the compromise are executing this compromise petition knowing the contents of the petition to be Correct. TI the compromise petition was signed by the petitioner and it was also signed by the opposite party No. 1 for self and on behalf of her minor daughter-opposite party NO. 2 in the presence of her counsel and was identified by Sri J. M. Das, Advocate, Copy of the compromise deed was filed by both the parties in the court of the Additional District and Sessions Judge, Bhadrak where the above mentioned revision petitions were pending. In view of the compromise, the learned Addi. District and Sessions Judge, Bhadrak disposed of the Criminal Revision No. 18 of 1990 filed by the petitioner - Dhaneswar Das in the following terms: both the parties filed a compromise petition before this Court. The parties and their respective counsel are present. The contents of the compromise petition are read and explained to the parties (petitioner and opposite party No. 1 on behalf of her minor daughter, opposite party No. 2) to which they admitted to be Correct. The guardian of opposite party No. 2 namely her mother Saraswati has admitted to have received a sum of Rs. 5,250/- on behalf of her minor daughter Sulochana Das. In view of the compromise, the parties do not want to contest the case further. Accordingly, the Revision is dismissed and the order passed by the learned Trial Court in the Misc. Case is confirmed. This order has given rise to Criminal Misc. Case No; 1588 of 1991. ( 6 ) IN Criminal Revision No. 23 of 1990, as is clear from order No. 15 dated 11. 7. 1991 recorded by the learned Sessions Judge, the counsel filed an application stating that the Criminal Revision has been compromised between the parties. The parties were heard on this application and the Criminal Revision was fixed for 22. 7. 199 1 for judgment. On that date, the learned Addi. District and Sessions Judge passed an order allowing the revision petition of Saraswati Das and reversed the order of the learned Magistrate whereby her claim for maintenance was rejected. The learned Addi. The parties were heard on this application and the Criminal Revision was fixed for 22. 7. 199 1 for judgment. On that date, the learned Addi. District and Sessions Judge passed an order allowing the revision petition of Saraswati Das and reversed the order of the learned Magistrate whereby her claim for maintenance was rejected. The learned Addi. Sessions Judge held that Saraswati (opp. party No. 1 herein) was also entitled to claim maintenance at the rate of Rs. 150/-per month from the petitioner. This order has given rise to Criminal Revision No. 534 of 1991. ( 7 ) THE contention of Sri PK Dhal, learned counsel for the petitioner is that the claim of maintenance having been compromised and the fact of compromise having been admitted by Smt. Saraswati Das before the court, the learned Additional Sessions Judge erred in passing the impugned orders by ignoring the compromise. It is contended that having accepted the compromise, the learned Addi. Sessions Judge was in error in dismissing Criminal Revision No. 18 of 1990 filed by the petitioner - Dhaneswar Das and in confirming the order passed by the Magistrate. The submission is that by dismissing the petition and confirming the order of the learned Magistrate, the Addi. Sessions Judge has, in fact, held that the minor Sulochana Das will be entitled to maintenance inspite of the compromise under which all the claims of maintenance were given away. ( 8 ) WITH reference to the order passed by the learned Addi. Sessions Judge in Criminal Revision No. 23 of 1990, it is contended that though a compromise petition was filed on 11. 7. 1991, yet the Additional Sessions Judge completely overlooked and proceeded to decide the revision filed by Saraswati Das on merits and has reversed the order of the learned Magistrate and has held that she is entitled to claim maintenance at the rate of Rs. 150/-per month. The revisional order passed by the Addi. Sessions Judge is also challenged on merits on the ground that the learned Addi. Sessions Judge has mis-interpreted the documentary and oral evidence on record and has thus arrived at a conclusion which cannot be supported. The opposite parties 1 and 2, however, inspite of notice chose not to appear and be represented the proceeding. Sessions Judge is also challenged on merits on the ground that the learned Addi. Sessions Judge has mis-interpreted the documentary and oral evidence on record and has thus arrived at a conclusion which cannot be supported. The opposite parties 1 and 2, however, inspite of notice chose not to appear and be represented the proceeding. Having heard the learned counsel for the petitioner and after perusal of the record and the impugned orders, I am of the opinion that the orders deserve to be set aside and the matter requires to be sent back to the learned Addi. Sessions Judge, Bhadrak for a fresh decision. ( 9 ) THE impugned order dated 18. 5. 1991 passed by the learned Addi. Sessions Judge in Criminal Revision No. 18 of 1990 disclose that the learned Additional Sessions Judge has accepted the compromise and considered the fact that the parties do not wish to contest the matter further but inspite of this final order is of dismissal of the revision and thereby affirming the order of the learned trial court. The learned counsel for the petitioner submits that this order, if allowed to remain may give rise to further litigation between the parties as in the garb of revisional order, Sulochana Das (minor), opposite party NO. 2 may execute the order of the trial Magistrate and claim maintenance though the matter has been compromised which has been admitted by Sulochana Das in the court of Addi. Sessions Judge, as is clear from a mere perusal of the impugned order. ( 10 ) AS regards the impugned order dated 22. 7. 1991 passed in Criminal Revision No. 23 of 1990 (Saraswati Das v. Dhaneswar Das), the learned counsel for the petitioner contends that though the compromise petition was filed before the court on 11. 7. 199 1 (which fact is clear from the order sheet of that date) and the learned Addi. Sessions Judge has referred to it while disposing of Criminal Revision No. 18 of 1990, yet the learned Addi. Sessions Judge did not make any reference to this compromise petition in the impugned order the revision but on the contrary, proceeded to dispose of the revision petition on merits, and ultimately reversed the order of the learned Magistrate whereby the claim of Saraswati Das for maintenance as the wife of Dhaneswar was rejected. Sessions Judge did not make any reference to this compromise petition in the impugned order the revision but on the contrary, proceeded to dispose of the revision petition on merits, and ultimately reversed the order of the learned Magistrate whereby the claim of Saraswati Das for maintenance as the wife of Dhaneswar was rejected. He submits that in view of the compromise, the learned Sessions Judge erred in not dismissing the revision in exercising its powers under Sec. 397/401 of the Code of Criminal Procedure. ( 11 ) THIS court would normally not interfere with the findings recorded by a court below in a proceeding under Sec. 482 or Sec. 397/401 of the Code of Criminal Procedure but as the learned Additional Sessions Judge has, in one case considered and accepted the compromise yet has in the other reversed the order pf the trial court and allowed the prayer for maintenance without making any reference to the compromise between the parties though the fact was brought to its notice (as is clear from the order sheet dated 11. 7. 1991), a case for interference has been made out by the petitioner. However, I would not reverse the orders and allow the Criminal Revision No. 534/91 and set aside the order in Misc. Case No. 1588/91 and thereby reject the claim of the opposite parties which would have the effect of rejecting the claim for maintenance. However, I would under the circumstances of the case, set aside the impugned orders passed by the Additional Sessions Judge, Bhadrak and remand the matter to it for a fresh decision in accordance with law. Needless to say, the learned Additional Sessions Judge shall link both the revisions for hearing, so that no contradictory orders are passed. It will be open to the opposite parties to raise all pleas/contentions which are available to it under the law. The learned Addi. Sessions Judge will hear the parties and will dispose of the revision in the light of the provisions contained in Chapter IX of the Criminal Procedure Code 1973. The learned Additional Sessions Judge will also consider the question whether or not a compromise petition between the parties can hold good as a valid defence or will be binding till such time as it is set aside or altered in exercise of powers under the relevant provisions. The learned Sessions Judge may refer. The learned Additional Sessions Judge will also consider the question whether or not a compromise petition between the parties can hold good as a valid defence or will be binding till such time as it is set aside or altered in exercise of powers under the relevant provisions. The learned Sessions Judge may refer. to the decision in the case of Bhupinder Singh v. Ranjit Kaur the petitioner is directed to appear before the learned Addi. Sessions Judge, Bhadrak on 1. 11. 1994. The learned Addi. Sessions Judge will issue notice to Saraswati Das and Sulochana Das and will give them reasonable time for appearance. Thereafter, as the matter is old the learned Addi. Sessions Judge will proceed to dispose of the revisions expeditiously within a reasonable period Lower Court record be sent back forthwith. Ordered accordingly. .