[1.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicants herein original applicants to quash and set aside the impugned order dated 25.06.2012 passed by the learned Family Court, at Ahmedabad passed below Exh.15 in Criminal Miscellaneous Application No.171 of 2011 by which the learned Judge has allowed the said application preferred by the respondent No.1 herein and has dismissed the said Criminal Miscellaneous Application No.171 of 2011 on the ground that the same is not maintainable. [2.0] Facts leading to present Criminal Revision Application in nutshell are as under:
[2.1] That proceedings were pending between the applicants and respondent No.1 under the Hindu Marriage Act, CrPC etc. and the applicant herein preferred Transfer Petition No.21 of 1997 before the Hon'ble Supreme Court. In the transfer petition a joint application of the parties for recording of the compromise was submitted by the learned advocates appearing on behalf of the respective parties on 05.02.1988 along with the terms of settlement between the parties and it was requested to dispose of the proceedings in terms of the settlement arrived at between the parties. It appears that under the terms of settlement between the parties, both the parties agreed to dissolve their marriage by obtaining divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as “Act”). The parties prayed to the Hon'ble Supreme Court to treat divorce petition pending before the Family Court at Ajmer in Case No.134 of 1996 as a petition for divorce by mutual consent under Section 13B of the Act and withdraw the same to the Hon'ble Supreme Court. The parties further prayed to the Hon'ble Supreme Court to pass a decree for divorce for dissolution of marriage between the petitioner and the respondent. It was also agreed that upon divorce the custody of the minor son Master Aditya shall remain with the petitioner wife and the said son shall be entitled to use the name of natural father Shri Manoj Khandelwal for all purposes in life. It was also agreed between the parties that the respondent husband will be free to meet the minor son with prior intimation to the petitioner wife for convenience sake. It was agreed between the parties that upon divorce, respondent husband shall give Rs.3 lacs as permanent alimony on one time settlement basis to the petitioner wife (which is reported to have been paid at the relevant time). It was also agreed between the parties that the proceedings initiated by the wife for maintenance pending before the Court of Civil Judge, Senior Division, Porbandar and the application under section 125 of the CrPC being Case No.427 of 1996 pending before the Court of JMFC, Porbandar be dismissed by the Hon'ble Supreme Court has having become infructuous in view of the settlement more particularly as per clause v. It was also agreed between the parties that upon divorce the respondent husband shall give Rs.1.25 lacs as one time settlement for welfare and education of the son which shall be kept in a Fixed Deposit Receipt with Nationalized Bank and the said amount of money along with accrued interest be given to minor son upon his attaining majority. That the said settlement signed by the respective parties was placed before the Hon'ble Supreme Court in the aforesaid proceedings and the Hon'ble Supreme by order dated 06.02.1998 disposed of the said transfer petition in terms of the settlement arrived at between the parties. The Hon'ble Supreme Court also further passed an order for a decree of divorce by treating the pending application as an application made under Section 13B of the Act. That thereafter the applicants preferred Criminal Miscellaneous Application No.171 of 2011 against respondent No.1 husband for claiming maintenance under Section 125 of the CrPC. In the said application respondent No.1 husband – original opponent submitted the application Exh.15 and to treat the said application as preliminary issue and to dismiss the said application submitting that in view of the order passed by the Hon'ble Supreme Court dated 06.02.1998 passed in Transfer Petition No.21 of 1996 and earlier settlement arrived at between the parties, the said maintenance application is not maintainable. The said application was opposed by the petitioners by filing the reply at Exh.20 submitting that under the settlement and even the order passed by the Hon'ble Supreme Court in the aforesaid proceedings, the right of the wife and the minor to seek maintenance in future are not taken away. It was submitted that the maintenance which was paid to the applicants herein paid at the time of settlement in the year 1998 was not for all time to come and therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Bai Tahira vs. Ali Hussain Fissalli Chothia and Anr. reported in AIR 1979 SC 362 as well as the decision of the learned Single Judge of this Court in the case of Bai Laxmiben D/o. Ramabhai Hirabhai v. Bharatbhai Vechatbhai Patel & Anr. reported in 1986(1) GLR 272, it was requested to dismiss the said application and to proceed with the hearing of the main maintenance application.
[2.2] That the learned Judge, Family Court by impugned order has allowed the application Exh.15 and has dismissed the maintenance application as not maintainable in view of the order dated 06.02.1998 passed by the Hon'ble Supreme Court in Transfer Petition No.21 of 1996 as well as in view of the settlement entered into between the parties before the Hon'ble Supreme Court and the order passed by the Hon'ble Supreme Court passed in terms of the said settlement.
[2.3] Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge, Family Court, Ahmedabad, the applicants have preferred the present Criminal Revision Application.
[3.0] Shri Dastoor, learned advocate appearing on behalf of the applicants has as such reiterated what was submitted before the learned Family Court. He has submitted that as such the applicants have submitted the present application for maintenance after the period of approximately 14 years as in these hard days it is very difficult for them to maintain themselves. It is submitted that as such amount of maintenance which was paid to the applicants at the time when the settlement was entered into in 1997 was not towards the maintenance for all time to come and as such was not sufficient and the amount which has been paid in the year 1997 has been spent towards the maintenance and therefore, as such the application submitted by the applicants claiming maintenance under Section 125 of the CrPC is maintainable and therefore, the learned Judge has committed an error and/or illegality in dismissing the said application as not maintainable.
[3.1] It is submitted by Shri Dastoor, learned advocate appearing on behalf of the applicants that as such there is no decree of divorce passed by any competent Court after the order passed by the Hon'ble Supreme Court and after the parties agreed to get the divorce by mutual consent. It is submitted that no decree for divorce has been produced and therefore, the marriage between the petitioner No.1 and respondent No.1 still subsist and therefore, the applicants are entitled to maintenance under Section 125 of the CrPC.
[3.2] Relying upon the decision of the Hon'ble Supreme Court in the case of Bai Tahira (Supra) and decision of the learned Single Judge of this Court in the case of Bai Laxmiben D/o. Ramabhai Hirabhai (Supra) and the decision in the case of Sankar Soren vs. State of West Bengal reported in 2004 Cri.L.J. 3088 in support of his submissions that despite the earlier statement and payment of lumpsum maintenance, subsequent application for maintenance under Section 125 of the CrPC by the wife would be maintainable.
Making above submissions and relying upon above decisions, it is requested to admit/allow the present Criminal Revision Application.
[4.0] Heard Shri Dastoor, learned advocate appearing on behalf of the applicants at length, perused and considered the impugned order passed by the learned Family Court No.3, Ahmedabad as well as the settlement entered into between the parties before the Hon'ble Supreme Court in the year 1997 and the order passed by the Hon'ble Supreme Court dated 06.02.1998 in Transfer Petition No.21 of 1997. Before considering the present application on merits, the relevant terms and conditions of settlement entered into between the parties which was submitted before the Hon'ble Supreme Court and in terms of which the Hon'ble Supreme Court disposed of the Transfer Petition are required to be considered and reproduced which are as under:
(ii) The parties wish to dissolve their marriage by obtaining Divorce by mutual consent under section 13B of the Hindu Marriage Act, 1955 as it is not possible to live together and they have been living separately for a period of more than one year i.e. from 26.11.1995 till date and have not lived as husband and wife during this period and it is also not possible to live together as husband and wife in future. The parties therefore, pray to the Hon'ble Supreme Court to treat the divorce petition pending before the Family Court at Ajmer in Case No.134 of 1996 as a petition for Divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 and withdraw the same to the Hon'ble Supreme Court. The parties further request and pray to the Hon'ble Supreme Court that a decree of divorce for dissolution of marriage between the petitioner and the Respondent be passed under section 13B of the Hindu Marriage Act, 1955 by the Hon'ble Supreme Court.
(v) Upon divorce, the Respondent – husband shall give Rs.3.00 lakhs as Permanent alimony on a one time settlement basis to the petitioner – wife within one week of the decree of Divorce being passed by the Hon'ble Supreme Court by way of Bank draft in favour of the petitioner – wife on a Nationalized Bank payable at Porbandar, Gujarat.
(vi) The Petitioner has filed against the respondent, only the Suit No. (unnumbered) of 1996 [being in defect] for maintenance pending before the Court of civil Judge (Sr. Division), Porbandar and the Application under section 125 of the CrPC being Case No.427 of 1996 pending before the Court of Judicial Magistrate (1st Class), Porbandar. In view of the settlement as per clause (v) above, these proceedings be rendered infructuous and be dismissed by the Hon'ble Supreme Court.
(vii) Upon divorce, the Respondent – husband shall give Rs.1.25 lakhs as one time settlement for the welfare and education of the son within one week of the decree of Divorce being passed by the Hon'ble Supreme Court by way of Bank draft in favour of the minor son through the petitioner as natural guardian on a Nationalized Bank payable at Porbandar, Gujarat.
(viii) The amount of Rs.1.25 lakhs towards the welfare of the son to be paid as aforesaid shall be kept in an FIXED DEPOSIT RECEIPT with a Nationalized Bank and the said amount of money along with accrued interest be given to minor son upon his attaining majority, with the exception that if the said amount is required for any of the unforeseen needs of the son only, before the son attains majority, the same can be met by raising loan against the FDR and will be paid back out of the same as per convenience.
(ix) The petitioner – wife shall be responsible for care and education to the son till the custody of the son is with the petitioner wife. In case the option under clause (iv) above is exercised and accepted by the Respondent – husband, it shall be the responsibility of the Respondent – husband thereafter.
(x) the respondent hereby agree to return within one week of the decree of divorce passed by the Hon'ble Supreme Court, to the petitioner through her authorized representative/s the articles exchanged between them on account of marriage or thereafter in the present condition as per the list accepted by and between the parties. However the petitioner has retained only the Mangalsutra and no other jewelery of the Respondent – husband.
(xii) Upon divorce and performance of the aforementioned terms and fulfillment of the respective obligations of the parties, as set out hereinabove, there remains no claim whatsoever between the parties including the minor son on either side or any of the family members of the parties as a result of this dissolution of marriage, either civilly or criminally.
(xv) The present Transfer Petition be disposed of in terms of this settlement as a full and final settlement between the parties and these terms of settlement be treated as a part of the Order/Decree of the Hon'ble Supreme Court.
[4.1] That the said settlement was placed before the Hon'ble Supreme Court in the Transfer Petition No.21 of 1997 and the Hon'ble Supreme Court disposed of the said Transfer Petition vide order dated 06.02.1998 and passed the following order:
During the pendency of this Transfer Petition No. 21 of 1997 before this Court, both the parties have tried to settle their disputes and it is stated by the learned counsel for both the parties that the parties have settled their disputes mutually and a joint petition incorporating the terms of the settlement has been filed before this Court. The parties are also personally present in court today. Both the parties have also filed affidavits in support of the application containing the terms of the settlement. It has been indicated in the said terms of settlement that such settlement has been arrived at voluntarily and keeping in mind the interests of both the parties and the minor son. It appears to us that the terms of settlement are beneficial to the interests of both the parties and also the interests of the minor son. A prayer has also been made before us as contained in the terms of settlement that the divorce petition bearing case No.134 of 1996 pending before the Family Court at Ajmer may be treated as a divorce petition by mutual consent under Section 13B of the Hindu Marriage Act, 1955 and a decree of divorce be granted. As it appears to us that in the facts of the case, such decree of divorce will be beneficial to the interests of both the parties, we direct for a decree of divorce by treating the pending application as an application made under Section 13B of the Hindu Marriage Act, 1955.
The transfer petition stands disposed of in terms of the settlement arrived at between the parties and the terms of the settlement affirmed by both the parties will form part of this order.
[4.2] That thereafter, after a period of approximately 14 years, the applicants have preferred present application under Section 125 of the CrPC before the Family Court, Ahmedabad which has been dismissed by the learned Family Court by impugned order on the ground that in view of the order passed by the Hon'ble Supreme Court in Transfer Petition No.21 of 1996 and the settlement entered into between the parties before the Hon'ble Supreme Court in terms of which Hon'ble Supreme Court has disposed of the Transfer Petition, the present maintenance application is not maintainable. Considering the aforesaid settlement and terms of settlement reproduced herein above and the order passed by the Hon'ble Supreme Court, the learned Judge, Family Court has rightly dismissed the maintenance application by observing that the same is not maintainable. At the relevant time in the year 1997, the applicant No.1 has been paid Rs.3 lacs as permanent alimony on a one time settlement basis and even applicant No.2 minor has been paid Rs.1.25 lacs as one time settlement for his welfare and education. Even at the relevant time also it was agreed to dismiss the maintenance application pending before the Court of learned Civil Judge, Senior Division, Porbandar and pending before the Court of learned JMFC, Porbandar as infructuous in view of the settlement entered into between the parties and in view of the payment of Rs.3 lacs towards permanent alimony to applicant No.1 wife and Rs.1.25 lacs as one time settlement to original applicant No.2. The learned Judge has rightly observed that if the said maintenance application is entertained, it will be contrary to the order passed by the Hon'ble Supreme Court. Under the circumstances, as such no illegality has been committed by the learned Judge in dismissing the maintenance application.
[4.3] Now, so far as the contention on behalf of the applicants that as such there is no decree of divorce passed by any competent Court after the order passed by the Hon'ble Supreme Court and as such the marriage between petitioner No.1 and respondent No.1 still subsist is thoroughly misconceived and has no substance. It is required to be noted that under the terms of settlement, the respective parties requested the Hon'ble Supreme Court to pass the decree of divorce by mutual consent and the Hon'ble Supreme Court has not only disposed of the transfer petition in terms of the settlement arrived at between the parties but even the Hon'ble Supreme Court has directed for a decree of divorce by taking pending application as an application made under Section 13B of the Act and considering that as such the Court before which the Transfer Petition was pending, disposed of the same as no further order was required to be passed. Under the circumstances, as such pursuant to the order passed by the Hon'ble Supreme Court in terms of the settlement arrived at between parties, the marriage between petitioner No.1 and respondent No.1 stood dissolved. Under the circumstances, it is now not open for the applicants to submit that still marriage between petitioner No.1 and respondent No.1 subsist.
[4.4] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Bai Tahira (Supra) and the decision of the learned Single Judge of this Court in the case of Bai Laxmiben D/o. Ramabhai Hirabhai (Supra) in support of his submission that despite the earlier settlement and despite payment of lump sum maintenance, subsequent application claiming maintenance would be maintainable is concerned, considering aforesaid decisions the same shall not be applicable to the facts of the present case. In the case before the Hon'ble Supreme Court as well as this Court it was found that lump sum payment of maintenance was absolutely inadequate and as such there was no such order passed by the Hon'ble Supreme Court as passed in the present case. Payment of Rs.3 lacs towards permanent alimony as one time settlement in the year 1997 cannot be said to be inadequate at the relevant time. In the year 1997, payment of Rs.3 lacs was a substantial amount. Under the circumstances, aforesaid decisions would not be of any assistance to the applicants.
[5.0] In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application which deserves to be dismissed and is, accordingly, dismissed.
(M.R. Shah, J.) menon