Research › Search › Judgment

Orissa High Court · body

2002 DIGILAW 690 (ORI)

HEMALATA SAHOO v. MADAN MOHAN SAHOO

2002-10-28

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - In this application u/s 19 of the Family Courts Act, read with Section 482, Code of Criminal Procedure, Petitioner challenges the judgment dated 10.7.2000 of the Judge, Family Court, Cuttack in Criminal Proceeding No. 111 of 1998. That proceeding was initiated by the Petitioner, as noted in her application, u/s 125 read with Section 127, Code of Criminal Procedure and Section 7 of the Family Courts Act. That application of the Petitioner was rejected by the lower Court on the ground that she has forfeited her right to claim for fresh maintenance or enhancement of maintenance because of execution of the compromise vide Ext. A. 2. A flash back of fact discloses that Petitioner claiming to be the wife of the opposite party filed application u/s 125, Code of Criminal Procedure and that was registered as Criminal Misc. Case No. 39 of 1978 in the Court of S.D.J.M., Bhadrak. That application was allowed granting monthly maintenance ' Rs. 250/-. As against that, opposite party was unsuccessful in the Criminal Revision No. 241 of 1982 filed in this Court. Application u/s 128, Code of Criminal Procedure was filed by the Petitioner vide Criminal Misc. Case No. 111 of 1985 in the Court of S.D.J.M., Bhadrak for realisation of arrear maintenance to the tune of Rs. 21,625/-. On 15.10.1985 a compromise was effected between the parties in that proceeding (under Section 128, Code of Criminal Procedure). According to the terms of the compromise opposite party made payment of Rs. 18,000/- and agreed to pay further monthly maintenance ' Rs. 20/- and that is how the Petitioner conceded in that compromise petition not to claim any further monthly maintenance beyond Rs. 20/- (Twenty). Thereafter, Petitioner shifted her residence to Cuttack and in the year 1998 filed the aforesaid Criminal Proceeding No. 111 of 1998 claiming for maintenance/enhancement of maintenance. 3. Learned Judge, Family Court, Cuttack after taking note of all the aforesaid admitted facts rejected Petitioners claim for maintenance on the ground of settlement vide the document of compromise Ext. A. 4. Learned Counsel for the Petitioner advanced a strenuous argument contending that terms of settlement of the compromise vide Ext. 3. Learned Judge, Family Court, Cuttack after taking note of all the aforesaid admitted facts rejected Petitioners claim for maintenance on the ground of settlement vide the document of compromise Ext. A. 4. Learned Counsel for the Petitioner advanced a strenuous argument contending that terms of settlement of the compromise vide Ext. A is neither absolute nor operates as estoppel to debar the legal right of the Petitioner to claim for enhancement of maintenance in changed circumstance and, therefore, learned Judge, Family Court was wrong in dismissing her application. In that context the opposite party supported the impugned judgment of learned Judge, Family Court, Cuttack. During the course of hearing, the moot point which cropped up for consideration are: (i) Whether recording of compromise in the proceeding u/s 128 amounts to an order under Sub-sections (1) or (2) of Section 127, Code of Criminal Procedure; (ii) Whether the compromise effected in the proceeding u/s 128, Code of Criminal Procedure has taken away the right of the Petitioner to claim for enhancement of maintenance. 5. The legal issues as noted above are no more res integra. In the case of Benudhar Tanty Vs. Sunabati alias Nalini Dei a Division Bench of this Court has held that: 8. u/s 128 of the Code, the Magistrate (in the present case the Family Court) is required to enforce an order of maintenance passed u/s 125 of the Code and the Section does not contemplate a proceeding either for reconciliation or for compromise in the matter to nullify the order passed for maintenance. The order of the competent Court u/s 125 remains valid and enforceable unless and until it is modified or annulled by a higher forum or it is varied or vacated under Sub-sections (4) or (5) of Section 125 or u/s 127. The plea, therefore, of the Appellant that there was a compromise during the proceeding u/s 128 and the conjugal relationship was revived for sometime in terms of such compromise and as such the order cannot be enforced u/s 128, Code of Criminal Procedure does not stand to reason and has to be rejected. We do not appreciate the procedure adopted by the learned Judge, Family Court for conciliation and a compromise in a proceeding u/s 128, Code of Criminal Procedure was not in accordance with any law. We do not appreciate the procedure adopted by the learned Judge, Family Court for conciliation and a compromise in a proceeding u/s 128, Code of Criminal Procedure was not in accordance with any law. But however, on ultimate analysis, the Court has rightly rejected the petition for compromise and directed compliance of the order of maintenance through the District Inspector of Schools, the Pay Disburshing authority of the Appellant. 6. Similar view has been expressed by this Court in the case of Prafulla Kumar Panda v. Smt. Amari Kumari Panda, (1995) 9 OCR 540, with respect to consideration of the question of enhancement of maintenance notwithstanding an agreement between the parties. In that context also see the cases of Jasbir Singh v. Hardeep Kaur, II (1993) DMC 70, Joydel Kumar Biswas v. Madhuri Biswas, 1995 (1) Crimes 207 , Srikanta Padhy Vs. Prabasini Dixit alias Padhy. In that context, ratio in the case of Ananth Gopal Pai v. Gopal Narayan Pai, 1985 Cri.L.J. 152 and Smt. Kastoori Devi v. Sri Chheda Lal Sharma, 1978 Cri.L.J. 703 are found distinguishable and not applicable. 7. On the back drop of the aforesaid fact and the position of law the impugned order of Judge, Family Court, Cuttack, disentitling the Petitioner from claiming for maintenance/enhancement of maintenance on the basis of Ext. A is found to be illegal and accordingly the impugned judgment is set aside and the revision is allowed. In the result, the Judge, Family Court, Cuttack is now required to consider the application of the Petitioner on merit and in accordance with law as provided in Chapter IX of the Code of Criminal Procedure 8. Once the Petitioner has obtained an order of maintenance and that has not been rescinded or altered or modified to make it ineffective, that order of maintenance is still enforceable in accordance with law. In view of that if the application filed by the Petitioner in the Court below is only for maintenance u/s 125 and not for enhancement of maintenance u/s 127, Code of Criminal Procedure, then it is open to the Judge, Family Court, Cuttack to consider the question, if raised, as to whether a second application for maintenance is maintainable when the first order of maintenance u/s 125, Code of Criminal Procedure is subsisting and enforceable. 9. 9. If the aforesaid application filed in the Court of Judge, Family Court, Cuttack, is for enhancement of maintenance then in view of the fact that order of maintenance was passed by the S.D.J.M., Bhadrak in Criminal Misc. Case No. 111 of 1985, the Judge, Family Court, Cuttack may also consider whether an application for enhancement of maintenance shall lie in this Court when the Court of S.D.J.M., Bhadrak, does not come within his jurisdiction. 10. In the aforesaid two aspects Petitioner may take proper recourse, if so advised, and if any such application shall be moved by the Petitioner that shall be considered by the Court below in accordance with law. This observation is made on the aforesaid two aspects because of the argument which was advanced in that connection though that was not a point in controversy considered by the Judge, Family Court, Cuttack while passing the impugned judgment. 11. As noted above, the Criminal Revision is allowed by setting aside the impugned judgment of the Judge, Family Court, Cuttack with a direction to him to proceed with the Criminal Proceeding No. 111 of 1998 in accordance with law. 12. Crl. Revision allowed. Final Result : Allowed