IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.915/2017 BETWEEN:
MR. PRAKASH RAO MAIRPADY AGED ABOUT 47 YEARS S/O LATE DR. M.V. RAO WORKING AT DOHA NOW IN INDIA AT 16-75/1-B-1 “ANNAPOORANA”
PADRE TEMPLE ROAD POST SRINIVASANAGAR SURATHKAL - 575 025.
... PETITIONER (BY SRI. ASHOK HARANAHALLI., SR. COUNSEL A/W SRI. A. RAVISHANKAR., ADVOCATE) AND:
SMT. SWATHI HEBBAR AGED ABOUT 39 YEARS W/O MR. PRAKASH RAO MAIRPADY C/O A.S.N. HEBBAR ADVOCATE, “NUDI”, MAIN ROAD KUNDAPURA - 576 201.
... RESPONDENT (BY SRI. HARIKRISHNA S HOLLA., ADVOCATE) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ORDER DATED:17.12.2015 PASSED BY THE ADDL. C.J. AND JMFC, KUNDAPURA IN CRL. MISC. NO.1975/2015 AND QUASH THE ORDER DATED:02.12.2016 PASSED BY THE ADDL. DIST. AND S.J., UDUPI (SITTING AT KUNDAPURA), KUNDAPURA IN CRL.R.P.NO.9/2016.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The marriage between petitioner and respondent came to be solemnised on 22.05.2002 and out of said wedlock a son and a daughter were born who are aged now 14 years and 11 years respectively. After marriage they were residing at Doha-Qatar and on account of certain differences of opinion and alleging that she (wife-respondent herein) being unable to continue to live with the petitioner-husband she is said to have returned back to India along with her children on 15.12.2015 and staying with her parents at Kundapura, Mangalore District.
2. A petition under Section 125 of Cr.P.C. came to be filed by the wife in C.Misc.No.1975/2015 seeking for a direction to her husband to pay a lump-sum amount of `1 Crore as security for her future settlement in India and a monthly maintenance of `2,00,000/- for her and their children livelihood and their expenses.
3. A joint memo came to be filed by the petitioner and respondent, which is the bone of contention in this petition and as such terms of settlement arrived at between parties is extracted hereinbelow for purposes of immediate reference:
“1. The dispute involved in the above petition has been amicably settled between the petitioner and the respondent at the intervention of the well-wishers of both the parties as follows and the parties have agreed to the same.
2. The respondent shall pay to the petitioner a monthly maintenance of Rs.2,00,000/- (Rs. Two Lacs), commencing from January, 2016 by the 10th of every month.
2. The respondent shall pay the sum of Rs.1 Crore to the petitioner as security fro settling herself with children in India. Out of this amount, he shall keep Rs.50,00,000/- (Rs. Fifty Lacs) in a fixed deposit in the name of the petitioner in a bank of the choice of the petitioner, within one month from this date and shall pay Rs.50,00,000/- in cash to the petitioner within one month from this date.
3. The respondent agrees to hand over to the petitioner the education records of the children, Vishnu Mairpady Rao and Varsha Prakash Rao, within fifteen days from this date.
4. The respondent would continue all the investment plans he has started in the petitioner’s and children’s names and will not deprive the petitioner’s rights in properties standing her name or in the joint names of the petitioner and the respondent.
5. The petitioner shall have the legal and de facto custody of both the children and the respondent shall not interfere with the said custody. The petitioner has no objection to the respondent visiting the children at any time at the place of residence of the petitioner for the time being, with due regard to the education schedule of the children.
6. Even if at any time in future the petitioner decides to go for a job or does any business activity, her earning capacity shall not be constructed as a change in circumstance and the respondent agrees to continue to pay the monthly maintenance to the petitioner and to abide by all the above terms without default, in spite of her earning.”
4. Learned trial Judge has accepted the said joint memo and allowed the petition filed under Section 125 of Cr.P.C. by the petitioner-wife. Order which came to be passed on 17.12.2015 allowing the petition, which is sought to be being quashed, being a short order, is also extracted hereinbelow for immediate reference:
“Case called out in the Open court at 3.00 P.M.
Petitioner is present. Sri.K.S.A. Advocate for the petitioner is present. Sri.
N.P.N. Advocate filed Vakalath for Respondent. The Respondent is also present. The Counsel for the petitioner and respondent filed Joint memo. perused the same.
On enquiry with both petitioner and respondent who are present before the Court they have admitted the contents of the joint memo to be true and correct. The Respondent has agreed to pay monthly maintenance of Rs.2 lakhs per month and a sum of Rs.1 Crore as security as mentioned in the joint memo. In view of the consent given by the respondent and petitioner and also in view of the joint memo filed on this day I proceed to pass the following order ORDER The petition filed by the petitioner under sec.125 of Cr.P.C. is allowed.
The respondent is directed to pay a sum of Rs.2 Lakhs per month commencing from January 2016 by 10th of every month.
The respondent is directed to pay a sum of Rs.1Crore in terms of the joint memo.
Sd/- 17/12/2015”
5. It is to be noticed at the outset that inspite of two attempts being made by this Court for a settlement being arrived at between parties same was futile and as such matter has been heard on merits.
6. I have heard the arguments Sri. Ashok Haranahalli, Learned Senior Counsel appearing for petitioner and Sri.Harikrishna S. Holla, learned counsel appearing for respondent. Parties are referred to as per the rank before lower Court.
7. It is the contention of Sri.Ashok Haranahalli, learned Senior Counsel appearing for petitioner that trial Court had committed a serious error in passing the impugned order in quick and rapid succession without giving reasonable time to the petitioner to understand the contents of the joint memo and the fact that petitioner is an outsider, who had just then arrived from Doha-Qatar and as such trial Court could not have passed such an order in haste. He would also contend that father of respondent is a Senior Member of the Bar practicing at Kundapura and as such he ought to have persuaded learned trial Judge to postpone the matter so as to enable petitioner understand the proceedings or the contents of joint memo. He would further contend that alleged compromise petition came to be signed by the petitioner with utmost faith and belief in respondent and he had not imagined that she would stoop to the level of extracting money from petitioner in the manner as reflected in the said compromise petition. He would also submit that petition under Section 125 of Cr.P.C. came to be filed by respondent herein on 17.12.2015 and compromise petition was also filed on the same day at 3.00 p.m. and matter came to be taken up by the Court at the instance of the Advocate appearing for respondent (her father) and entire proceedings was concluded within a span of 45 minutes. Hence, he contends it smacks of bonafides being exhibited by respondent. He would also contend that respondent herself had engaged the services of an Advocate on behalf of petitioner also and it is in this background confusion was prevailing in the mind of petitioner and impugned order came to be obtained by the respondent by keeping the petitioner in dark about the outcome of such settlement.
7.1 He would further contend that petition filed under Section 125 Cr.P.C. having been allowed, trial Judge ought to have considered as to whether the respondent would be entitled to the relief sought for by keeping in mind criteria/conditions prescribed under Section 125 Cr.P.C. being satisfied and essential ingredient for seeking maintenance was clearly lacking in the petition itself and as such impugned order could not have been passed. He would also submit that respondent had intentionally suppressed about she being an employee of Multi National Company and drawing good and reasonable salary, which disentitled her to claim maintenance. He would also contend that condition in the joint memo, whereunder petitioner has agreed to pay a sum of `1 Crore as security for settling the respondent and their children in India, was completely outside the scope of Section 125 Cr.P.C. proceedings.
7.2 He would further elaborate his submission by contending that trial Judge ought to have interacted with parties independently and only on satisfying himself about such compromise/settlement having been entered into between parties being voluntary and it was without any threat, coercion or under duress should have proceeded to accept the same and not otherwise and this fact having not been recorded is conspicuous by its absence in the order sheet.
7.3 He would also contend that Revisional Court erred in arriving at a conclusion that revision petition is not maintainable in law, by giving a narrow interpretation to provision of Section 397 of Cr.P.C.
7.4 He would also contend that even according to respondent they were all living together and there being no neglect on the part of petitioner in not maintaining respondent and children, trial Court could not have exercised the jurisdiction under Section 125 Cr.P.C. to award maintenance that too in the absence of such pleading.
7.5 He would submit that petitioner has never stated that he would not maintain children and condition to be satisfied by an applicant for grant of relief under Section 125 Cr.P.C. is; (i) unable to maintain herself, and (ii) proof of neglect, which were not pleaded or present. He would also submit that consent does not confer jurisdiction and to show the bonafides of petitioner, a joint memo had been filed in this petition on 01.02.2009 whereunder petitioner had agreed to pay a sum of `65,000/- per month as maintenance to respondent and the children, which is continued to be paid as on date, which shows the bonafides of petitioner and as such learned trial Judge could not have allowed the petition and he prays for setting aside the impugned order and remitting the matter back to trial Court for disposing of the same on merits and in accordance law. In support of his submission he has relied upon following judgments:
(i) (1979) 2 SCC 316: BAI TAHIRA vs. ALI HUSSAIN FIDAALLI CHOTHIA AND ANOTHER (ii) (1993) 2 SCC 507: CHIRANJILAL SHRILAL GOENKA (DECEASED ) THROUGH LRs vs. JASJIT SINGH AND OTHERS (iii) (2015) 2 SCC 385: JAIMINIBEN HIRENBHAI VYAS AND ANOTHER vs. HIRENBHAI RAMESHCHANDRA VYAS AND ANOTHER (iv) (2013) 10 SCC 136: JAGMITTAR SAIN BHAGAT AND OTHERS vs. DIRECTOR, HEALTH SERVICES, HARYANA AND OTHERS 8. Sri Harikrishna S Holla, learned Advocate appearing for respondent would support the impugned order and would contend that the criminal petition itself is not maintainable for the reason that petitioner has acted upon the order which was passed on the basis of joint memo filed by the parties and for three months maintenance had been paid and now he cannot turn around and contend that compromise was entered under duress. He would also submit that as per impugned order petitioner has now stopped paying maintenance to respondent and children and as such, he prays for dismissal of the petition.
8.1 He would also submit that petitioner is not an uneducated person or being unaware of the consequences of signing a joint memo and being fully aware of the consequences flowing from filing such joint memo, petitioner had affixed his signature to the same and as such, he cannot now resile from the stand taken by him in filing the joint memo. He would also submit with an intention to cause utmost inconvenience to the respondent and her children who have been neglected from the year 2015, petitioner is now attempting to contend contrary to what has been agreed to under the joint memo. He would also submit that petitioner is working in a multi-national company earning more than Rs.6 lakhs income per month and as such, he has agreed to pay maintenance in a sum of Rs.2 lakhs per month to petitioner and her children by considering their status as also the status in which they lived till December, 2015 and as such, no infirmity can be found in the impugned order. Hence, he prays for dismissal of the petition.
9. Having heard the learned Advocates appearing for the parties and on perusal of the records, it would emerge there from that marriage between petitioner and respondent came to be solemnised on 25.02.2002 as per Hindu Custom and rites at Hangalur of Kundapur Taluk. A son and a daughter were born out of said wedlock who are now aged 14 years and 11 years respectively.
10. There is no dispute between the parties that after marriage, they were residing at Doha, Qatar on account of work exigency of the petitioner. However, respondent – wife returned from said country along with her children on 15.12.2015 due to alleged mental incompatibility and has been residing at her parental home at Bajpe, Mangalore.
11. She had filed a petition under Section 125 Cr.P.C. before the JMFC, Kundapura in Crl.Misc.1975/2015 to direct the petitioner to pay a lumpsum amount of Rs.1 Crore as security for her future settlement in India and a monthly maintenance of Rs.2 lakhs for her livelihood and expenses for herself and her children. As already noticed herein above, a joint memo came to be filed on 17.12.2015 by virtue of which, learned trial Judge has accepted the said joint memo on the ground that parties had arrived at a settlement as per the terms set out in the said joint memo. Undisputedly joint memo is duly signed by both parties. Based on the said joint memo, order came to be passed on 17.12.2015 by the learned trial Judge which is also noticed herein above and any further enumeration of facts in this regard would only burden the record and as such, same is not delved upon.
12. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of the legal battle.
13. It would be apt and appropriate to note at this juncture that no appeal would lie from a decree passed by the Court with the consent of parties vide Section 96(3) CPC. However, after the amendment to CPC in the year 1976 has been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23 CPC and a right has been given under Rule 1A(2) of Order 43 CPC to a party who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against such decree. Section 96(3) CPC would not bar to file such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. As such, a party challenging a compromise can file a petition under Proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of CPC, in which he can question the validity of the compromise in view of Rule 1A of Order 43 CPC.
14. Hon’ble Apex Court in the case of BYRAM PESTONJI GARIWALA vs UNION BANK OF INDIA AND OTHERS reported in AIR 1991 SC 2234 has held that expression “in writing and signed by the parties” occurring in Order 23 Rule 1 CPC includes counsel and agent of party-compromise decree signed by counsel and not by parties in person is binding, executable and operates as res judicata even if extends beyond subject matter of suit. It came to be held by Apex Court in said judgment to the effect:
“40. Accordingly, we are of the view that the words ‘in writing and signed by the parties’, inserted by the C.P.C (Amendment) Act, 1976, must necessarily mean, to borrow the language of O. III, R. 1, C.P.C.:
“any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person”.
15. There is always a presumption when agreement is reached between the parties which culminates in filing a compromise petition or a joint petition, which has been accepted by the Court. There would be no need or necessity for the use of express words “with regard to satisfaction” to be found in the order of the Court recording such compromise petition. In this regard, it has been held by Hon’ble Apex Court in the matter of AMTESHWAR ANAND vs VIRENDER MOHAN SINGH AND OTHERS reported in (2006)1 SCC 148 as under:
“25. The next question raised by the appellants relates to Order 23 Rule 3 of the Code. According to them the procedure envisaged under that provision had not been complied with either in passing the orders on 18-3-1993 and 27-5- 1993 when the agreements were taken on record or when the final decree was passed on 25-8- 1993. It is a matter of record that when the appellants filed applications (IAs Nos.1860 and 4252 of 1993) for accepting the first two agreements under Order 23 Rule 3, the applications set out the clauses of the agreements verbatim. The applicants had affirmed separate affidavits in support of their respective applications, affirming on oath that they were fully conversant with the facts and circumstances of the case and that the applications had been drafted and filed under their instructions and that the statements of facts contained in the applications were true and correct to their knowledge. Order 23 Rule 3 casts an obligation on Court to be satisfied that a suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties. On the material before it, the High Court would have had no reason to hold that the suits had not been adjusted as affirmed by the parties to the application. It was not necessary for the Court to say in express terms that it was satisfied that the compromise was a lawful one. There is a presumption that the Court was so satisfied unless the contrary is proved . No doubt in Ajad Singh Vs. Chatra this Court has said that the suit could not have been disposed of except by recording its satisfaction as contemplated by Rule 3 of Order 23 of the Code. However, in that case there was in fact no proceeding under Order 23 Rule 3 at all. There the suit was decreed by the trial court on the basis of a compromise which had been entered into during the pendency of the suit which was not only on plain paper but was executed in a police station. This Court held that the suit could not have been disposed of except by recording the compromise and by following the procedure contemplated by Rule 3 of Order 23. The decision is therefore distinguishable on facts.
16. In the instant case, as already noticed herein above, both parties have appeared before the learned trial Judge and they have filed a joint memo reporting settlement of their disputes as per the terms enumerated in the joint memo and as such, learned trial Judge has made enquiry with both petitioner and respondent who were present before Court with regard to the contents of the joint memo and had recorded his satisfaction. Same requires to be noticed at the cost of repetition and it reads:
“On enquiry with both petitioner and respondent who are present before the Court they have admitted the contents of the joint memo to be true and correct. The Respondent has agreed to pay monthly maintenance of Rs.2 lakhs per month and a sum of Rs.1 Crore as security as mentioned in the joint memo. In view of the consent given by the respondent and petitioner and also in view of the joint memo filed on this day I proceed to pass the following order.”
17. Thus, there has been satisfaction recorded by the learned trial Judge with regard to the execution of the joint memo by the parties with reference to the contents of joint memo and only when they were ad idem to the terms set out in the joint memo and on being satisfied with the due execution of the joint memo, learned trial Judge has accepted the same and prima facie no fault can be found with the trial Court in that regard.
18. A compromise may incorporate not only matters falling within the subject matter of the suit or proceedings but also other matters which are collateral to it. In a somewhat similar situation, the Hon’ble Apex Court in the matter of Bhupinder Singh Vs. Daljith Kaur reported in 1979 Crl.L.J.198 while examining the issue as to whether subsequent cohabitation of compromise is a valid defence to execute the order passed under Section 125 of Cr.P.C. has held that if the husband has a case of Section 125 (4), (5) or Section 127 of the Code it would open to him to initiate appropriate proceedings and until the original order of 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, said order would be valid and it survives. It is further held that such order is enforceable and no plea can be allowed to be raised that there has been cohabitation in the interregnum period or that there has been a compromise between the parties and thereby it would be valid defence for not paying maintenance. Such a contention was not entertained and plea of the husband, who attempted to stave off the liability to pay maintenance ordered under Section 125 contending interalia that there has been cohabitation between him and his wife was tuned down. It was held that same is not a valid defence and as such passed the following order:
“7. We are concerned with a Code which is complete on the topic and any defence against an order passed under S. 125, Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under S. 125 (4), (5) or S.127 of the Code it is open to him to initiate appropriate proceedings. But 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 S.127, its validity survives. It 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 view, we hold that the decisions cited before us in favour of the proposition contended for by the petitioner are not good law and that the view taken by Sir Shadi Lal Chief Justice is sound.”
18.1 Section 125 of Cr.P.C. does not prescribe any particular form in which final order of the Magistrate should be passed while granting maintenance or allowance to the wife. Where the Magistrate mentions in the order that case was decided “in terms of compromise or in terms of joint memo” and the terms of the compromise was not vague it obviously implies that each and every condition incorporated under the compromise petition will be a part of order and binding upon the parties.
19. Rajasthan High Court in the case of Kaur Singh Vs. State of Rajasthan reported in 1989 (3) Crimes 709 while examining the claim of husband where he refused to implement the terms agreed to under the compromise on the ground that it is a conditional decree, had refused to entertain such plea on the ground that until and unless order passed under Section 125 by virtue of a compromise entered into between the parties is varied, vacated or reversed it would be binding on the parties by referring to BHUPENDRA SING’s case referred to herein supra. Thus, it boils down to the fact the order of maintenance passed on the basis of compromise would be very much enforceable.
20. In the light of aforestated facts, when the contention raised by the learned Sr.counsel appearing for petitioner which is to the effect that despite filing of a joint memo, it was incumbent upon the learned trial Judge to have examined the plea for grant of maintenance in the teeth of Section 125 Cr.P.C. when examined, it requires to be brushed aside for the simple reason that such an exercise was not required to be undertaken by the learned trial Judge particularly when the parties thereunder were at ad idem, until and unless such compromise or such settlement being unlawful and opposed to public policy vide Section 23 of the Indian Contract Act, 1872.
21. Apart from the above discussion, it requires to be noticed that in the event of wife in whose favour order has been made for grant of maintenance is living in adultery or without sufficient reasons refused to live with her husband or that they are living separately by consent, the jurisdictional Court would always be empowered to cancel said order as provided under sub- section(5) of Section 125 Cr.P.C. In that view of the matter, contention raised by the learned Senior Counsel appearing for petitioner that trial Judge ought not to have accepted the joint memo and passed an order does not appeal to logic in the light of aforestated discussion and the only irresistible which requires to be drawn in the factual matrix obtained is to reject said contention and consequently, following order is passed:
ORDER (i) Criminal petition is dismissed.
(ii) Order dated 17.12.2015 passed by the Judicial Magistrate First Class, Kundapura in Crl.Misc.No.1975/2015 and order dated 02.12.2016 passed by Additional District and Sessions Judge, Udupi (sitting at Kundapura), Kundapura in Crl.R.P.No.9/2016 are confirmed.
(iii) Petitioner would be at liberty to file appropriate application as provided under the Code to seek for variations, modifications or setting aside the same in the light of observations made herein above, if so advised and no opinion is expressed in that regard.
SD/- JUDGE DR/sp/MBM