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2008 DIGILAW 14 (PNJ)

Nirmal Singh v. Gurvinder Kaur

2008-01-07

R.S.MADAN

body2008
JUDGMENT R.S. Madan, J.:- By filing this petition under Section 482 Cr.P.C. the petitioner has prayed for quashing the petition dated 11.02.2004 filed under Section 125 Cr.P.C. (Annexure P1) titled as Gurvinder Kaur and another v. Nirmal Singh pending in the court of CJM, Nawanshahr as the same is an abuse of process of law since the amount of maintenance of respondent Nos.1 and 2, namely, Gurvinder Kaur and Harjinder Singh (both minors) has already been paid in lump-sum to’ their mother (respondent No.3) in divorce petition (HMA No.121 of 2001) filed by her against the petitioner on the basis of the compromise effected between the petitioner and respondent No.3 and the statement (Annexure P3) of Manjit Kaur (respondent No.3) suffered before the learned Additional District Judge/Presiding Officer. Lok Adalat, Nawanshahr on 17.03.2002. 2. The facts as disclosed in the petition are that respondent Nos.1 and 2 through their guardian filed a petition under Section 125 Cr. P.C. against the petitioner for grant of maintenance of Rs.2500/- per month to each of them. Their case is that they are the minor children of the petitioner. Respondent No.1 is studying in’ 6th standard at Village Kot Ranjha and respondent No.2 is studying in 5th standard at Village Chikran, Tehsil and District Nawanshahr. The expenses of their study are being borne by their maternal grand-parents. The petitioner is employed in DCM Mills at Village Ansron, Tehsil Balachaur and District Nawanshahr and is getting a salary of Rs.12.000/- per month. Besides this, he has also income from his agricultural land, whereas they hardly have their both ends meet; Thus, they pleaded they be allowed maintenance of Rs.2500/- per month to each of them. 3. Upon notice, Nirmal Singh petitioner filed reply by taking up the plea that he has been suspended by the DCM Management on 07.10.2003 and presently he is getting a salary of Rs.2500/- per month only. While taking into account the income of the petitioner, the learned Chief Judicial Magistrate, Nawanshahr, vide order dated 02.04.2005. allowed interim maintenance of Rs.600/- per month each to respondent Nos.1 and 2 from the date of application during the pendency of petition under Section 125 Cr.P.C. 4. While taking into account the income of the petitioner, the learned Chief Judicial Magistrate, Nawanshahr, vide order dated 02.04.2005. allowed interim maintenance of Rs.600/- per month each to respondent Nos.1 and 2 from the date of application during the pendency of petition under Section 125 Cr.P.C. 4. Aggrieved by order dated 02.04.2005, the petitioner filed revision before the learned Additional Sessions Judge, Nawanshahr, who has also dismissed the revision vide order dated 08.03.2007, and remitted the case to the learned CJM, Nawanshahr for its disposal in accordance with law. 5. It is Annexures P4 and P6 which are challenged before this court vide which interim maintenance was allowed to respondent Nos.1 and, 2 by the learned CJM, Nawanshahr and the revision filed against said order was dismissed by the learned Additional Sessions Judge. The plea of the petitioner is that at the time of compromise which took place in the Lok Adalat in a Hindu Marriage Act case, respondent No.3 Manjit Kaur took the responsibility to maintain the children (respondent Nos.1 and 2). She has received a lump-sum of Rs.70,000/- as maintenance for herself and for the children. The order passed in that case is reproduced as under :- “Parties have compromised and their statements have been recorded. In the light of above statement of the parties and their counsel, coupled with compromise, Ex.C1, this petition is accepted and as its consequence the marriage between the parties is dissolved by a decree of divorce, leaving the parties to bear their own costs.” 6. The petitioner has also placed on the record copy of statement of Manjit Kaur respondent No.3 (Annexure P3). The relevant part of their statement is reproduced as under :- “I have compromised with respondent and the compromise deed is Ex.C1. which I admit to be correct and it bears my signatures. I am accompanied by my counsel. I have received Rs.70,000/- in lump-sum by way of my claim regarding past as well as future maintenance. Both the minor children will remain with me and I will be responsible for their maintenance & education. My marriage may be dissolved.” 7. It was urged on behalf of the petitioner that since respondent No.3 Manjit Kaur has taken the responsibility to maintain and educate respondents No.1 and 2 therefore, no liability can be fastened against the petitioner. Both the minor children will remain with me and I will be responsible for their maintenance & education. My marriage may be dissolved.” 7. It was urged on behalf of the petitioner that since respondent No.3 Manjit Kaur has taken the responsibility to maintain and educate respondents No.1 and 2 therefore, no liability can be fastened against the petitioner. According to him, Annexure P3 shows that respondent No.3 has taken past as well as future maintenance for herself and the children. 8. I have perused the compromise (Ex.C1) today produced before me by the learned counsel for the petitioner. It nowhere reflects that respondent No.3 has accepted the maintenance amount in full and final settlement on behalf of respondents No.1 and 2 also. The receipt attached with Exhibit C1 reflects that a lump-sum amount of Rs.70.000/- was accepted by respondent No.3 as her past as well as future maintenance at the time of disposal of Hindu Marriage petition. It is a case where respondents No.1 and 2 were not party in the Hindu Marriage petition. No interim maintenance was allowed to them in that petition. It is not the case of the petitioner that a petition under Section 26 of the Hindu Marriage Act was filed wherein any interim maintenance was fixed for the children. In the absence thereof also, statement of wife Manjit Kaur is of no value that she will maintain and educate the minor children. 9. The question of grant of maintenance of the children is governed by the statutes under the The Hindu Adoptions & Maintenance Act. 1956. The plea of the petitioner is falsified from the receipt which forms part of compromise, Ex.C1, which shows that no maintenance was ever accepted by their mother Manjit Kaur on their behalf. The question of making any statement by wife Manjit Kaur against the interest of the children is also not to be taken into account, unless a certificate is issued by a counsel representing the minors that the compromise is for the welfare of the minors. Order 32 Rule 7 of the Code of Civil Procedure provides safeguard to the future interests of the minors. 10. Order 32 Rule 7 of the Code of Civil Procedure provides safeguard to the future interests of the minors. 10. In the absence of above said statutory requirements as well as that respondents No.1 and 2 are not the party in the Hindu Marriage petition, the statement made by Manjit Kaur (respondent No.3) has rightly been not taken into consideration by the learned Magistrate while fixing the interim maintenance under Section 125 Cr.P.C. The present proceedings cannot be quashed for the simple reason that the wife has made a statement in a Hindu Marriage Act case that she would provide education and maintenance to the children. The petitioner is father of respondents No.1and 2 and cannot take the benefit from the statement of respondent No.3 Manjit Kaur and wriggle out of his responsibility to maintain his legitimate children. The petitioner and respondent No.3 after taking divorce are living separately with their respective spouses and children are living at the mercy of their grand-maternal parents. 11. Taking into consideration the facts and circumstances of the case, no case for quashing Annexures P4 and P6 is made out. The petition is dismissed. ----------------