Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 1043 (MP)

Ram Singh v. Somat Bai

2002-11-25

NARAIN SINGH AZAD

body2002
JUDGMENT The petitioner seeks quashment of order dated 5th July, 2001, passed by J.M.F.C. Rehli, in M.Cri.C. No. 10-2001, wherein, on account of non-payment of maintenance by this petitioner to the non-applicants, as ordered on 7th August, 1999, in M.Cr.C. No. 7/98, registered on non-applicants application, filed U/s. 125 of the Code of Criminal Procedure, hereinafter referred to as Code, learned J.M.F.C. ordered the petitioner to pay an amount of Rs. 3,500/- to non-applicant No.1 else, he would have to undergo an imprisonment for a period of 5 months. The petitioner further seeks quashment of order dated 10th. April, 2002, wherein, his challenge to aforesaid order dated 5th July, 2001, stood negatived by IIIrd Addl. Sessions Judge, Camp Rehli, in petitioner's Cri.Rev. No. 13/2002. As per photocopy of certified copy of order dated 7th August, 1999, passed byJ.M.F.C. Rehli, in M.Cr.C. No. 7/98, this petitioner was ordered to pay maintenance to non-applicants U/s. 128 of the Code, since the date of order i.e. 7.8.1999. On account of non-payment of maintenance, the non-applicants filed a recovery petition, which stood registered as M.J.C. No. 1012001, and in this petition, filed under sub-section 3 of section 125 of the Code, it is ordered by the learned J.M.F.C. on 5.7.2001, that the petitioner shall pay to the non-applicants an amount of Rs. 3,500/- as arrears of maintenance else, he would have to undergo an imprisonment for a period of 5 months. The petitioner challenged the aforesaid order dated 5.7.2001, in Cri. Rev. No. 13/2002, on the ground that in his earlier Cri. Rev. No. 175/99, wherein, he challenged the order of maintenance dated 7.8.1999, passed in M.Cr.C. No. 7/98, a compromise took place between the parties on 22.2.2000 and hence, the non-applicants started living with him, therefore, the order of maintenance dated 7.8.1999, has no force. The learned IIrd A.S.J. turned down the aforesaid objection by order dated 10.4.2002, and hence this petitioner has knocked the door of this Court, seeking exercise of inherent powers on the aforesaid ground taken up in the Revisional Court. But affirming the view taken in the case reported in AIR 1932 Lahore 115, it is found dictated by their Lordships of the Supreme Court in Bhupindra Singh v. Daljit Kaur, reported in AIR 1979, page 442, that - "6. A contrary position has found favour with the Lahore High Court reported in AIR 1932 Lah 115. But affirming the view taken in the case reported in AIR 1932 Lahore 115, it is found dictated by their Lordships of the Supreme Court in Bhupindra Singh v. Daljit Kaur, reported in AIR 1979, page 442, that - "6. A contrary position has found favour with the Lahore High Court reported in AIR 1932 Lah 115. The facts of that case have close similarity to the present one and the head-note brings out the ratio with sufficient clarity. It reads: Shadi Lal, C.J. observed: "Now, in the present case the compromise, as pointed out above, was made out of Court and no order under S. 488, Criminal P .C. was made in pursuance of that compromise. Indeed, the order of the Magistrate allowing maintenance at the rate of Rs. 10 per mensem was neither rescinded nor modified, and no ground has been shown why that order should not be enforced. If the husband places his reliance upon the terms of the compromise, he may have recourse to such remedy in a Civil Court as may be open to him. The Criminal Court cannot, however, take cognizance of the compromise and refuse to enforce the order made by it. " This reasoning of the learned Chief Justice appeals to us. "7. We are concerned with a Code which is complete on the topic and any defence against an order passed under S. 125, CrPC, 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 the parties can hold good as a valid defence. " While disposing of petitioner's Criminal Revision No. 13/2002, it is found observed by the learned Revisional Court that between these parties, the compromise took place outside the Court and on account of compromise, the petitioner got his revision petition dismissed with this statement that he does not want any relief. Thus, it is clear that in the present case, the order of maintenance dated 7.8.1999 is not in any way modified, cancelled, varied or vacated under sub-section 4 or 5 of section 125 of the Code or u/s. 127 of the Code, on account of any compromise and hence its validity still survives. Consequently, the learned J.M.F.C. or the Revisional Court is found to have committed no illegality in passing orders dated 5.7.2001 and 10.4.2002, respectively. In result, in the absence of patent illegality, this petition does not merit which is accordingly disallowed and rejected at the stage of motion hearing.