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2018 DIGILAW 2370 (ALL)

Ran Vijay Singh v. State Of U. P.

2018-11-20

JAYANT BANERJI

body2018
JUDGMENT : Jayant Banerji, J. Heard Shri Raj Kumar Vaishya alongwith Shri Sanjay Kumar for the applicant and Shri Rahul Singh for the opposite party no.2. 2. Learned counsel for the opposite party no.2 has stated that he does not wish to file any counter affidavit in the matter and it may be decided on the point of law involved in this case. Accordingly, with the consent of the parties, this application is being decided on merits. 3. This application has been filed for quashing the order dated 27 April 2018 passed by the Principal Judge, Family Court, Mahoba in Case No.12 of 2018 (Smt. Ranjeeta Vs. Ran Vijay Singh) whereby, in proceedings under Section 128 Cr.P.C., the court below has directed the deduction of maintenance amount of Rs.5000/-per month to be made from the salary of the applicant and has further directed conducting an inquiry into the second marriage of the applicant and to send the inquiry report to the Court. 4. In the affidavit filed in support of this application, it is stated that proceedings for maintenance under Section 125 Cr.P.C. were initiated by the opposite party no.2 against the applicant for her maintenance being the legally wedded wife of the applicant. This case was registered as Case No.194 of 2013. The application for maintenance was allowed by means of an order dated 18 June 2015 and a sum of Rs.5000/-per month was awarded to the opposite party no.2 as maintenance. It is stated that later on both the applicant and the opposite party no.2 entered into a compromise and the applicant filed Marriage Petition No.35 of 2016 under Section 127 Cr.P.C (Ran Vijay Singh Vs. Smt. Ranjeeta) in the Family Court, Mahoba on the ground that the opposite party no.2 was willing to live with her husband and prayed for cancellation of the order of maintenance dated 18 June 2015. It is stated that this marriage petition was allowed by the court below by means of an order dated 12 November 2016. Prior to filing of Case No.35 of 2016, Case No.18 of 2015 was filed by the opposite party no.2 before the Principal Judge, Family Court, Mahoba under Section 128 Cr.P.C. for recovery of the amount of maintenance. It is stated that this marriage petition was allowed by the court below by means of an order dated 12 November 2016. Prior to filing of Case No.35 of 2016, Case No.18 of 2015 was filed by the opposite party no.2 before the Principal Judge, Family Court, Mahoba under Section 128 Cr.P.C. for recovery of the amount of maintenance. However, from the order dated 12 November 2016 passed in Case No.18 of 2015, it transpired that the entire money was recovered from the applicant by the opposite party no.2 and she had started to live with her husband and had requested for setting aside the case. It is stated that the order of maintenance dated 18 June 2015 was cancelled on the basis of the compromise filed by the parties and the applicant and the opposite party no.2 started to live together as husband and wife. Thereafter, it is stated that the opposite party no.2 again started quarreling with the applicant and without sufficient reason she went to her paternal house in the month of March 2018 and on 22 March 2018, she again filed a case being Case No.12 of 2018 (Smt. Ranjeeta vs. Ran Vijay Singh) under Section 128 Cr.P.C. claiming maintenance from the applicant in pursuance of the order dated 18 June 2015. By the order dated 27 April 2018, the court below directed the applicant to make payment to the opposite party no.2 at the rate of Rs.5000/-per month as maintenance in pursuance of the order dated 18 June 2015 passed in Case No.194 of 2013 and further called for the report regarding the re-marriage of the applicant. It is stated that the order dated 27 April 2018 is ex-parte and a final relief has been granted as an interim relief and the order is wholly without jurisdiction. 5. It is contended by the learned counsel for the applicant that in terms of the compromise entered into between the parties in pursuance of which the orders dated 12 November 2016 came to be passed, the order dated 18 June 2015 passed in Case No.194 of 2013 had lost its effect and the revival of that order by the court below by means of ex-parte order dated 27 April 2018 is totally illegal and without jurisdiction. It is further contended that in view of the compromise and the consequential order passed thereon by the court below, the order dated 18 June 2015 granting maintenance to the opposite party no.2 had lost its efficacy and only fresh proceedings under Section 125 Cr.P.C. could be initiated by the opposite party no.2. 6. Countering the submissions made by learned counsel for the applicant, learned counsel appearing for the opposite party no.2 has stated that the order of maintenance dated 18 June 2015 was passed by the court below after categorically recording its findings that (a) the applicant and the opposite party no.2 were legally married, (b) the applicant had entered into a second marriage during the subsistence of the marriage with the opposite party no.2, and that (c) the opposite party no.2 is unable to maintain herself. It is contended that when the applicant failed to comply with the order of maintenance dated 18 June 2015, the opposite party no.2 was constrained to file Case No.18 of 2015 for execution of that order under Section 128 Cr.P.C. However, the applicant, since he was seeking appointment in Government service, fraudulently and in a mala fide manner approached the opposite party no.2 for settlement, and the opposite party no.2 not having the ability to maintain herself and wishing to continue with her marital life with the applicant, readily agreed to live with him and, therefore, proceeded to sign the compromise which was filed in the court below by means of an application under Section 127 Cr.P.C. being Case No.35 of 2016 (which appears at page no.29 of the affidavit filed along with the application). It is stated that the opposite party no.2 was lulled into believing the devious compromise held out by the applicant and, therefore, she signed the compromise. It is further contended that the compromise so entered into between the parties and the consequential orders passed thereon by the court below would not have the effect of wiping out the order of maintenance dated 18 June 2015 passed by the court below. 7. From a perusal of the documents filed alongwth the affidavit, it appears that an application under Section 128 Cr.P.C. was filed in the Court of Principal Judge, Family Court, Mahoba which was registered as Case No.194 of 2013 (Smt. Ranjeeta Vs. Ran Vijay Singh). 7. From a perusal of the documents filed alongwth the affidavit, it appears that an application under Section 128 Cr.P.C. was filed in the Court of Principal Judge, Family Court, Mahoba which was registered as Case No.194 of 2013 (Smt. Ranjeeta Vs. Ran Vijay Singh). This application came to be allowed by an order dated 18 June 2015 and the applicant was directed to pay monthly maintenance of Rs.5000/-(Annexure-1 to the affidavit). A perusal of this order of maintenance reveals that clear findings were recorded by the court below that the applicant and the opposite party no.2 are illegally wedded, that dowry was demanded, that the applicant entered into a second marriage during the subsistence of his marriage with the opposite party no.2, and that the opposite party no.2 was entitled for maintenance as she does not have any means to maintain herself. It appears that since the applicant did not comply with the order of maintenance, an application under Section 128 Cr.P.C., bearing Case No.18 of 2015 was filed by the opposite party no.2 in the court below for recovery of the amount of maintenance. Thereafter, an application under Section 127 Cr.P.C. (Case No.35 of 2016, Ran Vijay Singh Vs. Smt. Ranjeeta) was filed in the court of Principal Judge, Family Court, Mahoba that was titled 'Sulahnama' (compromise) dated 10 November 2016 which bore the signatures of the applicant and the opposite party no.2. This application appears at page no.29 of the affidavit. In this compromise application, it was stated by the contesting parties that the parties have entered into a compromise and they wish to get the order dated 18 June 2015 cancelled, that in future no kind of dispute would be raised by them, that they would look-after and maintain themselves, that the applicant or his family did not demand any dowry from the opposite party no.2 and, therefore, it would be in the interest of justice that the compromise of the parties be accepted and the case be disposed of. It was, therefore, prayed that the compromise of the parties be accepted and the case be disposed of. 8. In pursuance of the compromise application dated 10 November 2016, the court below considered the record of the case in the National Lok Adalat and the compromise application was verified by the court below. It was, therefore, prayed that the compromise of the parties be accepted and the case be disposed of. 8. In pursuance of the compromise application dated 10 November 2016, the court below considered the record of the case in the National Lok Adalat and the compromise application was verified by the court below. Accordingly, by means of an order dated 12 November 2016 (at page no.27 to the affidavit), the compromise application was accepted and both the parties were directed to appear before the court below on 28th of every month for a period of one year. The Superintendent of Police was directed to issue necessary instructions to the concerned Station House Officer to look after the parties for a period of one year and submit weekly reports to the court so that no untoward incident occurs. The applicant was also directed not to harass the opposite party no.2 and to fulfill her wishes and was also directed to fulfill his duties while staying with the applicant. The record of the case was consigned. 9. On the same day, by means of an order dated 12 November 2016 (at page no.31 to the affidavit) passed in the National Lok Adalat, the Case No.18 of 2015 filed by the opposite party no.2 under Section 128 Cr.P.C. was considered by the court below. The court below observed that the opposite party no.2 had received the entire amount of maintenance from the applicant and was residing with him since the past two months and wanted to end the case as she did not wish to make any recovery in future. The court below observed that the parties had appended their signatures on the order-sheet and it appeared that they did not wish to press the case and, therefore, there was no justification for proceeding with the matter. The court below, therefore, directed that the case was being disposed of since the opposite party no.2 did not wish to press the same. The records of the case were consigned. 10. Thereafter, the opposite party no.2 filed an application dated 22 March 2018 under Section 128 Cr.P.C. (Smt. Ranjeeta Vs. Ran Vijay Sngh) claiming maintenance in pursuance of the order dated 18 June 2015 passed in Case No.194 of 2013 under Section 125 Cr.P.C. This application has been enclosed as Annexure-3 to the affidavit. 10. Thereafter, the opposite party no.2 filed an application dated 22 March 2018 under Section 128 Cr.P.C. (Smt. Ranjeeta Vs. Ran Vijay Sngh) claiming maintenance in pursuance of the order dated 18 June 2015 passed in Case No.194 of 2013 under Section 125 Cr.P.C. This application has been enclosed as Annexure-3 to the affidavit. In this application, the opposite party no.2 stated that the applicant is residing with his second wife in Hamirpur and is the driver of the Additional District Magistrate. It was stated that the applicant in order to save himself from responsibility of paying maintenance to the opposite party no.2 had stated that he was willing to keep his wife and, therefore, despite the objection of her father, the opposite party no.2 came to court on 10 November 2016 and signed all the papers including the compromise gladly and willingly and after getting the case closed went with her husband to stay at his house. It was stated in the application that the applicant is a devious person and only to annul proceedings instituted by her under the provisions of the Indian Penal Code, defrauded the opposite party no.2 in getting the matter closed. The applicant kept the opposite party no.2 for a period of three months where, for most of the times, she used to stay alone but in February 2015, the applicant came prior to Holi festival and took her to her father's house and thereafter did not return for taking her back and also did not pay any maintenance. The court below by means of the impugned order dated 27 April 2018 clearly observed that there was no material on record to show that the order dated 18 June 2015 passed under Section 125 Cr.P.C. was cancelled and, therefore, the applicant was directed to file his objections to the application of the opposite party no.2. The court below further observed that the order dated 18 June 2015 passed in Case No.194 of 2013 under Section 125 Cr.P.C. continued to be in existence and the opposite party no.2 was entitled to monthly maintenance of Rs.5000/-and, therefore, the District Magistrate, Hamirpur was directed to deduct a sum of Rs.5000/-per month from the salary of the applicant and send it to the court below and further directed an inquiry into the second marriage of the applicant. 11. 11. The point for consideration by the Court would be whether, in view of the compromise application dated 10 November 2016 and the consequential orders passed by the court below, both on 12 November 2016, in Marriage Petition No.35 of 2016 and Case No.18 of 2015, the order for maintenance dated 18 June 2015 passed in Case No.194 of 2013 continues to remain in existence. A perusal of the compromise application dated 10 November 2016 itself reveals that though the parties had expressed their desire to get the order dated 18 June 2015 cancelled, but they had prayed for disposal of the case. On 12 November 2016, the joint application filed in Marriage Petition No.35 of 2016 was accepted by the court below conditionally. Further, by the order dated 12 November 2016 passed in Case No.18 of 2015, the case filed by the opposite party no.2 under Section 128 Cr.P.c. was disposed of on the ground that the opposite party no.2 did not wish to press the same. In none of these two orders, both dated 12 November 2016, is there any observation or direction that the order of maintenance dated 18 June 2015 passed in Case No.194 of 2013 was cancelled. An order of maintenance made under Section 125 Cr.P.C. can be cancelled or modified on the grounds mentioned in sub-section (5) of Section 125 or sub-sections (2) and (3) of Section 127 Cr.P.C. There is no averment in the application or in the affidavit filed in support thereof that any of the grounds mentioned in sub-section (5) of Section 125 or in sub-sections (2) and (3) of Section 127 Cr.P.C. existed that could merit the cancellation of the aforesaid order of maintenance dated 18 June 2015. The relevant provisions of Sections 125 and 127 are quoted below: “125. Order for maintenance of wives, children and parents: ….................... …................... (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 127. Alteration in allowance: …..................... ….................... …................... (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 127. Alteration in allowance: …..................... ….................... (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that- (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof. …................” 12. Neither has it been stated in the application/affidavit nor has it been contended by learned counsel for the applicant that the order of maintenance dated 18 June 2015 has been challenged and, therefore, this Court cannot but presume that the aforesaid order of maintenance dated 18 June 2015 has attained finality. The two orders dated 12 November 2016 in Marriage Petition No.35 of 2016 and in Case No.18 of 2015 passed by the court below under Sections 127 and 128 Cr.P.C. respectively would not and cannot have the effect of cancelling the order of maintenance dated 18 June 2015. 13. The two orders dated 12 November 2016 in Marriage Petition No.35 of 2016 and in Case No.18 of 2015 passed by the court below under Sections 127 and 128 Cr.P.C. respectively would not and cannot have the effect of cancelling the order of maintenance dated 18 June 2015. 13. The Supreme Court in the case of Bhupinder Singh Vs. Daljit Kaur, (1979) 1 SCC 352 has observed that 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 Section 127 Cr.P.C., its validity survives and 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. In this case before the Supreme Court also, the wife had resumed cohabitation with her husband which was followed by an application by the wife praying that her application for maintenance be dismissed and the execution proceedings for recovery of arrears of maintenance be withdrawn. The wife was betrayed because her allegation was that her husband was keeping a mistress making it impossible for her to live in the conjugal home and, therefore, she proceeded to enforce the order of maintenance. 14. In another case of Mahua Biswas (Smt.) Vs. Swagata Biswas & Anr., (1998) 2 SCC 359 the Supreme Court observed that in the case before the High Court it was noticed that the matrimonial case between the parties stood compromised and one of the terms was that she would go and live with her husband. She had in terms thereof come to live with her husband but later the spouses fell apart. On that basis it was urged that the orders of maintenance could not be revived as there had arisen a fresh cause of action. The High Court agreed with the husband and set aside the orders of maintenance leaving the wife to approach again the criminal court for appropriate relief. The Supreme Court observed that the previous orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out altogether. 15. The High Court agreed with the husband and set aside the orders of maintenance leaving the wife to approach again the criminal court for appropriate relief. The Supreme Court observed that the previous orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out altogether. 15. In view of the aforesaid, this Court has no hesitation in holding that the order of maintenance dated 18 June 2015 came to be eclipsed, in view of the two orders dated 12 November 2016 passed as a consequence to the compromise dated 10 November 2016, but was not cancelled and it continues to be in existence. The order impugned dated 27 April 2018 has been passed in fresh proceedings initiated by the opposite party no.2 under Section 128 Cr.P.C. for recovery of maintenance amount granted by the court below by means of its order dated 18 June 2015 passed in Case No.194 of 2013. Thus, there is no illegality or infirmity in the impugned order dated 27 April 2018. It is, however, open for the applicant to approach the court below and file his objections/reply. 16. For the reasons aforesaid, the Court finds no merit in this application. It is, accordingly, rejected.