The petitioner has challenged the order of maintenance passed by learned Principal Judge, Family Court, Rajkot, on 25.10.2010 in Criminal Miscellaneous Application No. 218 of 2008 by preferring this Revision Application under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973.
2. According to the petitioner, respondent No. 1 was his wife and respondent No. 2 was his minor daughter. Respondent No. 1 filed Criminal Miscellaneous Application No. 218 of 2008 claiming maintenance for herself and for minor daughter alleging that after marriage she was ill-treated and was driven out of the house when she was pregnant and since then she has been residing with her parents. It was also alleged that the petitioner obtained her signature on divorce Deed illegally against the provision of law on the promise that the petitioner would give Rs. 1 lakh each by way of fixed deposit but did not pay the amount and hence the divorce document is illegal and not binding the respondents. Therefore, the application to obtain maintenance under Section 125 of the Code of Criminal Procedure was filed in the Court of learned Chief Judicial Magistrate at Rajkot by filing Criminal Miscellaneous Application No. 289 of 2007.
3. On establishment of Family Courts at Rajkot, the said proceedings came to be transferred to the Family Court and it was registered as Criminal Miscellaneous Application No. 218 of 2008.
4. The petitioner appeared in the said proceedings and contested the same by filing written statement at Exh. 13 mainly contending that respondent No. 1 has been divorced by him on 17.9.1991 in presence of two witnesses and in the proceeding of Criminal Miscellaneous Application No. 299 of 2000 filed under Section 127 of the Code of Criminal Procedure the disputes were settled between the parties and the settlement was produced at Exh. 6 in the said proceedings and according to the settlement Demand Draft of Rs. 75,000/- towards the amount of future maintenance was given to the respondents and respondent No. 1 accepted the same for self and as guardian of minor daughter and agreed that no amount of maintenance is to be claimed in future. Therefore, the respondents are not entitled for the amount of maintenance and these facts of compromise have been suppressed by the respondents. Therefore, they are not entitled for maintenance and hence this application is required to be dismissed.
5. The trial Court, after considering the evidence produced on record of the case, by impugned judgement awarded maintenance at the rate of Rs. 3000/- per month to respondent No. 1 and at the rate of Rs. 2500/- per month to respondent No. 2 from the date of application and also awarded cost of Rs. 1000/-. Being aggrieved by the said decision, the present application has been filed.
6. I have heard learned advocate Mr. Amit Shah for learned advocate Mr. Manish Raval for the petitioner and learned advocate Mr. Nishant Lalakiya for the respondent Nos. 1 and 2. I have also perused the impugned judgement and copy of the evidence annexed with the compilation and shown to me at the time of hearing of the Revision Application.
7. Learned advocate Mr. Shah submitted that the petitioner gave divorce to his wife and after several proceedings there was settlement between the parties and amount of Rs. 75,000/- was paid to the respondents towards full and final settlement in respect of maintenance and respondent No. 1 accepted the said amount. Therefore, she could not have filed proceedings under Section 125 of the Code of Criminal Procedure to obtain maintenance. He also submitted that the respondents suppressed the fact of payment of maintenance amount and therefore learned trial Judge though the evidence with regard to the payment of lumpsum amount of maintenance was on record, failed to appreciate the same and therefore the impugned judgement is required to be set aside. He relied on the decision of this Court in the case of SHRIPATSINH KESHRISINH RANAWAT VS. STATE OF GUJARAT reported in 2010 Cr. L.R. (Guj.) 81.
8. Learned advocate Mr. Lalakiya for respondent Nos. 1 & 2 submitted that the amount paid to the respondents was not substantial amount to meet with the future demands. Therefore, the respondents were entitled to claim future maintenance. He also submitted that learned trial Judge after considering the evidence produced on record of the case and considering the compromise pursis Exh. 6 filed in the proceedings before learned Magistrate, recorded that despite divorce, the respondents were entitled for maintenance. Therefore, learned trial Judge appreciated the evidence produced on record of the case and hence no interference is warranted in the impugned judgement. Hence the Revision Application is required to be dismissed.
9. It appears that in the oral evidence respondent No. 1 showed her ignorance about the fact that the petitioner filed proceedings in the Rajkot Court to set aside the order of maintenance passed earlier by filing Miscellaneous Criminal Application No. 299 of 2000 but admitted that there was settlement in the said proceedings and she accepted the Demand Draft of Rs. 75,000/- towards settlement but vounteered that the said amount was given towards the amount given by her father. The witness also admitted that in para 6 of the settlement she agreed to withdraw all the pending cases but volunteered that on account of pressure she withdrew the cases. The witness also admitted that at the time of settlement her advocate was also present and as she admitted compromise, the Court passed order thereon. The witness volunteered that in order to extract money she admitted the settlement.
10. In view of above evidence it is clear that respondent No. 1 admitted that she received the amount of Rs. 75,000/- from the petitioner and withdrew the proceedings of maintenance filed by her. Respondent No. 1 tried to give explanation in respect of receipt of amount by saying that the said amount was given towards re-payment of the amount given by her father. However, no evidence in that regard was produced. On appreciation of the evidence as a whole it emerges that the respondent received amount towards full and final settlement of her claim of maintenance and admitted the said fact before the Court. Therefore, in my view, though the respondents received the amount of future maintenance, she claimed maintenance by filing the present proceedings.
11. The petitioner produced a copy of the settlement between the parties in the trial Court at Mark 12/2. The said settlement was made in Criminal Miscellaneous Application No. 299 of 2000 filed in the Court of learned Chief Judicial Magistrate, Rajkot. Learned trial Judge has relied on this document, though it is not admitted in evidence. The respondents have also not disputed this settlement. Therefore, there is no reason to dispute the settlement. On perusal of the said document, it appears that respondent No. 1 accepted the amount of Rs. 75,000/- towards settlement of future maintenance for herself and her daughter. It also indicates that the respondents agreed not to claim any maintenance in future. Therefore by said settlement, the respondents obtained lumpsum amount towards future maintenance and waived their right to claim future maintenance. It appears that learned trial Judge committed serious error in appreciating the evidence produced on the record of the case. Therefore, in my view, the impugned judgement is required to be set aside.
12. In the decision of SHRIPATSINH KESHRISINH RANAWAT VS. STATE OF GUJARAT (supra) this Court ruled that when civil matter was settled in the year 1983, and after long period of 9 years, proceeding under Section 125 of the Criminal Procedure Code was filed, the respondent was not entitled to any maintenance as once matter is settled, right of respondent to get maintenance under Section 125 of the Criminal Procedure Code does not survive as relation between the parties comes to an end. In the present case it emerges that the amount of future maintenance was received by the respondents in the year 2000 by way of settlement in the proceedings and on account of such settlement, the proceedings for claiming maintenance were withdrawn by the respondents. Thereafter, in the year 2007 proceeding under Section 125 of the Code of Criminal Procedure was filed. Therefore, in view of this judgement, the respondents are not entitled to claim maintenance as they received the amount of future maintenance.
13. In view of above, learned trial Judge committed error in awarding the amount of maintenance to the respondents. Therefore, the impugned judgement is required to be set aside.
14. In the result, the Revision Application is allowed. The judgement and order dated 25.10.2010 passed by learned Principal Judge, Family Court, Rajkot, in Criminal Miscellaneous Application No. 218 of 2008 is set aside. Rule is made absolute.
(BANKIM N. MEHTA, J) (pkn) Top