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2016 DIGILAW 90 (RAJ)

Savitri v. Vijaypal

2016-01-13

SANDEEP MEHTA

body2016
JUDGMENT Sandeep Mehta, J. By way of this revision petition, the petitioner Smt. Savitri Devi has approached this Court being aggrieved of the order dated 28.02.2014 passed by the learned Judge, Family Court, Churu in Criminal Misc. Case No. 43/2013 whereby, the application for maintenance submitted by the petitioner under Section 125 Cr.P.C was rejected. 2. The petitioner was married to the respondent Vijaypal in the year 2005. Vijaypal allegedly turned the petitioner out of the matrimonial home. The petitioner, filed an FIR under Sections 498-A and 406 IPC against her in-laws but, Vijaypal and his family members, gave her false assurances and thereby, managed to have the proceedings of the FIR terminated through a compromise. The petitioner was not paid any subsistence upon which, she was constrained to move an application under Section 125 Cr.P.C. in the Court of the learned Family Judge, Churu. Such application was decided by the Family Court, vide order dated 28.02.2014 and the prayer for maintenance made on behalf of the petitioner was turned down. Being aggrieved, the petitioner has approached this Court by way of this revision petition. 3. I have heard the arguments advanced by the learned counsel for the petitioner and the learned counsel representing the respondent. 4. Counsel for the petitioner urged that the document (Ex.D/3) on the basis whereof, the Family Court, rejected the application preferred by the petitioner is of no consequence whatsoever. The said document whereby, allegedly the parties decided to mutually terminate their matrimonial ties, has no sanctity in law and is nothing but an unconscionable contract on the face of it. He relies on the judgment rendered by the Hon'ble Supreme Court in the case of Nagendrappa Natikar v. Neelamma, reported in 2013(2) R.C.R.(Civil) 469 : 2013(2) R.C.R.(Criminal) 424 : 2013(2) Recent Apex Judgments (R.A.J.) 390 : 2013 (1) TCR 212 and urges that in spite of such an agreement, the remedy of the wife to seek maintenance cannot be foreclosed forever. He thus prays that the order under challenge deserves to be quashed and set aside. He contends that admittedly, the respondent, without legally divorcing the petitioner, has remarried. This amounts to a cruelty on the petitioner, who has an absolute right to live separately and claim maintenance from the respondent. 5. Per contra, Shri Rakesh Matoria, learned counsel representing the respondent vehemently opposed the arguments advanced by the learned counsel for the petitioner. He contends that admittedly, the respondent, without legally divorcing the petitioner, has remarried. This amounts to a cruelty on the petitioner, who has an absolute right to live separately and claim maintenance from the respondent. 5. Per contra, Shri Rakesh Matoria, learned counsel representing the respondent vehemently opposed the arguments advanced by the learned counsel for the petitioner. He urged that the petitioner, voluntarily executed the document (Ex.D/3) whereby, the matrimonial ties between the parties were terminated with consent and they decided to part their ways and to proceed in their life as per their own wishes. The respondent has thereafter remarried and has two children from the second marriage. He further contended that the petitioner had agreed in the said document that she would not claim any maintenance from the husband in future and thus, she is precluded from claiming any maintenance from the respondent. 6. I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record. 7. The Hon'ble Supreme Court, in the case of Nagendrappa Natikar (supra), relied upon by the counsel for the petitioner's counsel, held that a compromise arrived between the parties in one proceeding cannot forever foreclose the claim of maintenance available to the party under law. 8. The petitioner, during her cross-examination was confronted with certain potions of the document (Ex.D/3) but, significantly, the recital made in the said document, as per which, the petitioner allegedly gave up her claim for maintenance was not put to her. Though it is claimed that a sum of Rs.2,50,000/- was paid to the petitioner but, the respondent failed to establish such claim by any convincing evidence. 9. In this background, this Court is of the firm opinion that the learned Judge, Family Court, Churu was thoroughly unjustified in dismissing the application for maintenance filed by the petitioner solely by relying on the document (Ex.D/3). The document (Ex.D/3) has no sanctity in law at all whatsoever. Admittedly, the respondent has remarried and therefore, the possibility of the petitioner resuming the matrimonial ties with him has been extinguished. In this background, this Court is of the opinion that the order under challenge is totally illegal and cannot be sustained. 10. The revision petition thus deserves to be and is hereby allowed. The respondent shall make payment of Rs.2,000/- per month to the petitioner by way of maintenance. In this background, this Court is of the opinion that the order under challenge is totally illegal and cannot be sustained. 10. The revision petition thus deserves to be and is hereby allowed. The respondent shall make payment of Rs.2,000/- per month to the petitioner by way of maintenance. The direction to make payment shall be effective from the date of this order. The respondent shall deposit the maintenance amount in the Family Court by 10th day of each month, failing which the Family Court shall take steps for enforcing the order of maintenance and for recovering the maintenance amount from the respondent. Stay application stands disposed of.