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2022 DIGILAW 424 (GUJ)

PRAGNESHBHAI KIRITBHAI PARMAR v. STATE OF GUJARAT

2022-03-29

B.N.KARIA

body2022
JUDGMENT : 1. By preferring this application, applicant has requested to quash and set aside the judgement and order dated 18th January, 2018 passed in Criminal Misc. Application No. 104 of 2013 along with Criminal Misc. Application No. 368 of 2014 by learned Principal Judge, Family Court, Vadodara. 2. Heard learned advocates appearing for the respective parties as well as learned APP for the respondent-State. 3. Learned advocate for the applicant submits that respondent-wife was not interested in running marriage life with the present applicant. On 28.2.2010, their marriage was dissolved and applicant as well as respondent No.2 were agreed with certain conditions shown in the divorce deed. That, divorce deed was binding to both the parties, executed in presence of two witnesses . That, on 9.11.2012, divorce deed was executed by the applicant in favour of respondent No.2 on non judicial stamp paper of Rs.100/- and on the other-hand respondent No.2 also executed divorce deed in favour of applicant on non judicial stamp papers of Rs.100/- wherein, both the parties agreed to give absolute divorce to each other and also agreed with certain conditions. That, on 20th November, 2012, applicant had transferred his own house valued of Rs.30,00,000/- in favour of respondent No.2-wife as well as two daughters. That, inspite of settlement arrived at between the parties, on 27.2.2015, applicant had paid more amount of Rs. 3,00,000/- to the respondent No.2 by way of the account payee cheque. That, Family Court has committed an error in not considering the evidence on record and house having prize of around Rs.30,00,000/- given to respondent No.2 by way of permanent alimony of maintenance to her and two minor daughters. That, no order of maintenance could have been passed by the Family Court in favour of respondent No.2-wife, as the applicant is now residing in rented premises. Referring cross-examination of respondent-wife it is submitted that wife is residing with her father and house given by the present applicant was not used by her. That, respondent-wife has waived her rights to claim any maintenance from the present applicant, as per the agreement of divorce executed between them. Therefore, she cannot claim any maintenance amount from the applicant u/s. 125 of Cr.P.C. That, trial Court has not considered the said aspect. That, income part of the applicant is also overlooked by the Family Court as he is earning only Rs. 6,000/- to Rs.7,000/- per month. Therefore, she cannot claim any maintenance amount from the applicant u/s. 125 of Cr.P.C. That, trial Court has not considered the said aspect. That, income part of the applicant is also overlooked by the Family Court as he is earning only Rs. 6,000/- to Rs.7,000/- per month. That, granting maintenance to the respondents at Rs. 3,000/-, each, total Rs.9,000/- is exorbitant which can not complied with by the present applicant. Hence, it was requested by learned advocate for the applicant to quash and set aside the impugned order dated 18.1.2018 passed in Criminal Misc. Application No. 104 of 2013 along with Criminal Misc. Application No. 368 of 2014 by learned Judge, Family Court, Vaodadara and allow this application. 4. From the other-side, learned advocate appearing for the respondent No.2 has supported the reasons arrived at by learned Family Court granting maintenance to the respondents-original petitioners as Rs.9,000/- in total to the respondents and two minor daughters from the date of filing of the application. It is submitted that applicant has remarried with another lady and divorce deed was created by force. That, statutory rights given to the respondent- wife cannot be curtailed by the Court or taken away by the applicant on the ground that she would not claim any maintenance from the applicant being her husband. That, transferring a house by the present applicant and executing the registered sale deed in favour of respondent wife cannot absolve the present applicant paying the amount of maintenance to the wife and two minor children. That, respondent- wife has no source of income or she is not earning any amount of income. That, she herself and two minor daughters are depended upon her father. That, they are not in a position to maintain themselves. That, amount of Rs.9,000/- granted by the Family Court is also not sufficient to maintain herself and two minor daughters. That, applicant is remarried with one lady namely Nisha and respondent-wife being divorcee also entitled to claim maintenance from her husband. That, applicant is engaged in a business of computer and earning Rs.50,000/- to Rs.60,000/- per month. That, he has no other responsibility on his shoulder, as he has sufficient source of income . That, no error is committed by the Family Court in allowing the application preferred by the respondents granting maintenance at Rs.3,000/- per month to the respondent-wife and Rs.3,000/- per month to each daughters. That, he has no other responsibility on his shoulder, as he has sufficient source of income . That, no error is committed by the Family Court in allowing the application preferred by the respondents granting maintenance at Rs.3,000/- per month to the respondent-wife and Rs.3,000/- per month to each daughters. Hence, it was requested by learned advocate for the respondent to dismiss the present application. 5. Learned APP for the respondent-State has requested to pass necessary order as it is a dispute between private parties. 6. Having gone through the facts of the present case and submissions made by learned advocates appearing for the respective parties as well as learned APP, it is not in dispute that present applicant married with respondent No.2 on 9th May, 2004 at Vadodara by Hindu Rites and Rituals. Out of wedlock between the applicant and respondent No.2, there are two daughters, i.e. elder Hani aged about 10 years and younger Hetavi aged about 6 years. At the time of filing this petition, both the daughters were residing with respondent No.2. As per submission of the applicant, on 28th February, 2010, their marriage was dissolved and applicant as well as respondent No.2 are agreed with certain conditions and executed one divorce deed under their signature in presence of two witnesses. Thereafter, on 9.11.2012, applicant executed one divorce deed with respondent No.2 on non judicial stamp paper of Rs.100/-, and on the other hand, the respondent No.2 also executed divorce deed in favour of the applicant No.1 on non judicial stamp paper of Rs.100/- wherein, both the parties were agreed to give absolute divorce to each other and also agreed certain conditions mentioned in the said agreement. On 20th November, 2012, applicant had transferred his residential house situated at House No. B-15, Sayaji Township, Vadodara in favour of respondent No.2 as well as two daughters wherein, it is mentioned that the property has been transferred to respondents for permanent alimony. After said settlement arrived at between the parties, as per submission of the applicant, on 27.2.2015, applicant had paid more amount of Rs. 3,00,000/- to the respondent No.2 by way of account payee cheque which was deposited in the account of respondent No.2. Thereafter, respondent No.2 filed one complaint being Criminal Misc. After said settlement arrived at between the parties, as per submission of the applicant, on 27.2.2015, applicant had paid more amount of Rs. 3,00,000/- to the respondent No.2 by way of account payee cheque which was deposited in the account of respondent No.2. Thereafter, respondent No.2 filed one complaint being Criminal Misc. Application No. 1792 of 2014 under the provisions of D.V.Act and one complaint was filed by the respondent no.2 being C.R.I-No. 29 of 2016 for the offences punishable under Sections 465, 568, 471, 494, 506(2), 181, 177 and 114 of the IPC registered with Vaso Police Station, Dist. Kheda. Another application was filed by respondent No.2 u/s. 125 of Cr.P.C praying for maintenance for herself and her two minor daughters. Learned Family Judge passed common judgement and order dated 18th January, 2018 directing applicant to pay an amount of Rs.3,000/- per month to respondent No.2 and Rs.3000/- per month (each) to respondent Nos. 3 and 4 towards maintenance with effect from the date of filing of an application together with cost towards proceeding of amount of Rs.2000/- . From the record, it appears that there are two documents produced on record before the Court below, out of which, one document was executed on 28.2.2010 dissolving marriage of the applicant and respondent No.2. In the said document at condition No.4, it was written that for the maintenance of the minor children, present applicant and respondent No.2 had decided one fixed amount which was to be paid by the present applicant within a period of 2 months. After accepting amount as agreed between the parties, respondent No.2 would maintain herself and two minor children. In Condition No.5, both the parties agreed that after accepting the amount to be paid by the present applicant, respondent No.2 would sole responsible to maintain herself and minor children. There would be no liability of present applicant to maintain them. It appears from the entire agreement that no specific amount was mentioned in the divorce deed executed on 28.2.2010. Further, it appears from the record that another divorce deed was executed between the parties on 9th November, 2012. If we refer second divorce deed as stated above, they decided to end their marriage life with their consent. It appears from the entire agreement that no specific amount was mentioned in the divorce deed executed on 28.2.2010. Further, it appears from the record that another divorce deed was executed between the parties on 9th November, 2012. If we refer second divorce deed as stated above, they decided to end their marriage life with their consent. As per condition No. 4 of this second divorce deed, it was agreed by the applicant that he would pay Rs.15,00,000- to the respondent No.2 by way of maintenance of the minor children. After accepting this amount from the applicant by respondent No.2, she would maintain herself and her minor children. It was also agreed by respondent No.2 that after accepting amount of maintenance from the applicant, it would be her sole liability to maintain minor children as well as their education. Applicant would be free from any liability as per condition No.6. On the basis of this divorce deed, respondent No.2 was free to use the amount which was to be paid by the applicant after consulting her father. In condition No.9 it was stated that in case respondent No.2 would remarry, custody of the minor children would be handed over to the applicant as well as what ever the amount paid by the applicant by way of permanent alimony, her rights will automatically be cancelled. Thereafter, only both daughters would be entitled for claiming maintenance. Undisputedly, respondent No.2 has not remarried thereafter. Further it appears that condition No.4 was amended and in place of maintenance amount of Rs.15,00,000/- which was agreed to be paid by the applicant, it was amended and replaced as immovable property. In condition No.5 word amount was amended as from the use of the property. It is understood that thereafter, instead of Rs.15,00,000/- which was agreed to be paid by the present applicant to respondent No.2, he was agreed to transfer an immovable property in favour of respondent No.2 and after accepting the said property and using the same, respondent No.2 would maintain herself and accept the liability of two minor daughters. Thereafter, it appears that on 20th November, 2012, one document was executed by the present applicant in favour of respondent No.2 transferring the residential house bearing Block No. B/15 admeasuring constructed area 52.51 sq. Thereafter, it appears that on 20th November, 2012, one document was executed by the present applicant in favour of respondent No.2 transferring the residential house bearing Block No. B/15 admeasuring constructed area 52.51 sq. mtrs situated at Sayajipura Town Ship having Municipal Tenament No. 09/00001/020 which was duly registered before the office of Sub Registrar at Vadodara District without any consideration from respondent No.2. It appears that First divorce deed was executed on 28.2.2010 as Exh. 68. Further, it appears that after executing said divorce deed in the year 2010, present applicant remarried with a lady namely Nisha in the year 2011 and started his marriage life with her. No complaint was filed by respondent No. 2 up to 2011 i.e. up to second marriage solemnized by the applicant. Respondent No.2 in her cross-examination has admitted that she was not staying in the house which was transferred by the applicant nor it was rented to anybody. She was staying with her father with two minor daughters and they were visiting their school from the house of her father. Now, the question would be once respondent-wife is agreed to waive her rights of maintenance after accepting immovable properties from the applicant instead of fixed amount of permanent alimony as amended in the second divorce deed, whether she would be entitled to claim her maintenance from applicant-husband u/s. 125 of Cr.P.C.? 7. At this juncture, this Court would like to refer judgement of the decision of Punjab & Haryana High Court in case of Ranjit Kaur Vs. Pavittar Singh reported in 1992 (1) ILR 448 wherein :- “Held, that statutory right of wife to maintenance cannot be bartered, away or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to its being against public policy would also be against the clear intendment of S.125. Therefore, giving effect to an agreement which over-rides Section 125 would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it. The agreement of the type referred to in this case may not per se be illegal but it cannot be given effect to being a negation of the statutory right. The agreement of the type referred to in this case may not per se be illegal but it cannot be given effect to being a negation of the statutory right. Held, further that the jurisdiction of the Magistrate under Section 125 is not ousted by any agreement between the parties if the facts and circumstances of the case otherwise justify the grant of maintenance. In other words, in every such case the Magistrate is bound to examine whether there has been neglect or refusal on the part of the husband to maintain the wife.” 8. Again same question was arisen before the Hon’ble High Court of Bombay in case of Ramchandra Laxman Kamble Vs. Shobha Ramchandra Kamble and Anr reported in 2018 SCC ONLINE Bom: 7039. In cited case, joint pursis was filed by the Petitioner and Respondent No.1 before the Lok Adalat to dissolve their marriage. In the pursis, there was a line, stating that both parties give up their rights to claim maintenance against one another. Based upon such pursis, Civil Judge, Senior Division at Sangli in Hindu Marriage Petition No.48 of 2009 made a consent decree, in which, even the term about the parties giving up their rights to claim maintenance against each other appears to be recorded. Thereafter, Respondent No.1-wife filed Miscellaneous Application No.229 of 2012, seeking recall of the consent decree at least to the extent it records that Respondent No.1 is giving up her right to seek maintenance from the Petitioner. It was the case of Respondent No.1 that there was no such agreement between the parties and the line recording the giving up rights to give maintenance was inserted fraudulently in the joint pursis filed in the Lok Adalat. However, the fact remains that as yet the consent decree or the term in the consent decree in relation to maintenance stands. 9. Hon’ble Bombay High Court in cited case observed as under:- 13. There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable. 9. Hon’ble Bombay High Court in cited case observed as under:- 13. There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable. The two courts in the present case have basically relied upon such rulings and held that even if it is assumed that the parties had voluntarily agreed to give up their time to claim maintenance from each other, such agreement is opposed to public policy and, therefore, the same is not enforceable, or the same does not bar the maintainability of an application under Section 125 of Cr.P.C. There is no jurisdictional error in the view taken by these two courts so as to warrant interference under Article 227 of the Constitution of India. 10. Even if respondent No.2 consented for divorce as per deed and matter was settled with the present applicant and respondent No.2-wife waived her rights for maintenance, though she cannot be debarred to file an application u/s. 125 of Cr.P.C praying for amount of maintenance for herself and her minor daughter. It appears from the record that applicant is educated person and engaged in business of computer hardware having degree of I.T. in addition to his service, he was earning Rs.25,000/- to Rs. 30,000/- per month. Daughter Hetvi was studying in Bright School and her annual fees is of Rs. 28,000/-. Desertion part is clearly proved by the respondent-wife as she is staying with her parental home along with two daughters. Applicant is staying with her second wife at another place. No income proof was produced by the applicant before the trial Court. It appears that interim maintenance was granted for two daughters i.e. Rs.3,000/- per month (each) which was not challenged by the present applicant. Respondent no.2 being divorcee shall be entitled to claim maintenance under Section 125 of Cr.P.C for herself and two minor daughters though she allegedly waived her rights of claiming maintenance from the applicant in the divorce deed. 11. Considering the documents produced on record, this Court is in complete agreement with the findings arrived at by the trial Court vide order dated 18.1.2018 passed below in Criminal Misc. Application No. 104 of 2013 along with Criminal Misc. 11. Considering the documents produced on record, this Court is in complete agreement with the findings arrived at by the trial Court vide order dated 18.1.2018 passed below in Criminal Misc. Application No. 104 of 2013 along with Criminal Misc. Application No. 368 of 2014 by the Principal Judge, Family Court Vadodara granting maintenance of Rs.3,000/- per month to the respondent-wife from the date of filing of the application. This Court has not found any substance in the submissions made by learned advocate for the applicant and thus no interference with the impugned order passed by the trial Court is required. Therefore, present Revision Application is ordered to be dismissed. Interim relief if any, stands vacated. ORDER IN CRIMINAL MISC. APPLICATION NO. 1 OF 2019 12. In view of the order passed in the main matter i.e. Criminal Revision Application No. 168 of 2018, this application does not survive, stands disposed of accordingly.