Karnataka High Court
Hanamant Basappa Choudhari Alias ... vs Smt. Laxmawwa And Anr. on 6 August, 2002
Equivalent citations: 2002CRILJ4397, ILR2002KAR4224, 2002(5)KARLJ405, 2002 CRI. L. J. 4397, (2003) 1 ALLINDCAS 672 (KAR), 2002 AIR - KANT. H. C. R. 2452, 2003 (1) ALLINDCAS 672, (2002) ILR (KANT) (3) 4224, (2002) 5 KANT LJ 405, (2002) 4 RECCRIR 730, (2002) 4 ALLCRILR 3
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER S.R. Bannurmath, J.
1. This petition is filed challenging the order dated 29-4-2000 passed by the Judicial Magistrate First Class, Basavana-Bagewadi, in Cr. Misc. No. 88 of 1997 awarding monthly maintenance at the rate of Rs. 300/- to the 1st respondent-wife and Rs. 150/- to the 2nd respondent-minor daughter as well as the order dated 6-10-2001 passed by the Principal Sessions Judge, Bijapur, in Cr. R.P. No. 131 of 2000 affirming the same.
2. The main grievance of the petitioner-husband is that, though there is no dispute regarding his relationship with the respondents as well as his liability to pay maintenance, in an earlier petition, viz., Cr. Misc. No. 40 of 1987, both the parties had entered into a compromise on 30-9-1988 in which the respondents had agreed to give up their entire claim of maintenance on receipt of a lump sum amount of Rs. 9,000/- as full and final settlement of the maintenance claim and as such the present petition once again claiming maintenance is illegal. It is contended that, as long as the respondents have not got the earlier compromise order cancelled and as long as it is not contended that the petitioner has committed any fraud, coercion or misrepresentation against the respondents while entering into the compromise, the same is binding on her and as such the respondents are not entitled to a fresh maintenance.
3. On the other hand, learned Counsel for the respondents appearing for the respondents relying on the pronouncement of the Hon'ble Supreme Court in the case of Bai Tahira v. Ali Hussain Fissalli Chothia and Another, , and the decision of the Andhra Pradesh High Court in the case of Daniatram Vyas v. Smt. Saraswati Bai and Another, 1978 Cri. L.J. 806(AP), contended that the obligation to pay maintenance under Section 125 of the Criminal Procedure Code is a statutory obligation and it cannot be bartered by any agreement between the parties as long as the need is, within the four corners of Section 125 of the Cr. P.C.
4. On consideration of the rival contentions of the learned Counsels on both sides, the question which is required to be considered is "whether a wife who has voluntarily surrendered her right to maintenance would not be entitled to claim maintenance subsequently under Section 125 of the Cr. P.C. once again".
5. To appreciate and answer the question posed one has to look into the scope and object of Section 125 of the Cr. P.C. especially Sub-section (1) thereof. Section 125(1) of the Cr. P.C. does obligate a person having sufficient means to maintain the person specified in Clauses (a) to (d) in case where his neglect or refusal to pay such maintenance on his part is established. It is well-established law as declared by the Hon'ble Supreme Court in a catena of decisions, right to claim maintenance is a statutory right which the Legislature has created irrespective of the nationality, caste or creed of the parties. As held by the Apex Court in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Others, . This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. Therefore, it is clear that the statutory liability imposed under Section 125 of the Cr. P.C. is a distinct from the liability under any other law. Wherever it is proved to the satisfaction of the Court that there is refusal or neglect on the part of a husband to maintain his wife, children or parents, the Court is bound to provide maintenance. The effect of Section 125 of the Cr. P.C. is to create a fundamental and natural duty of a man towards his wife, children and parents who are unable to maintain themselves. The object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support. This right being a right to survival or livelihood essentially survives and lives every moment of life of the person entitled to be maintained. The use of the words "and to pay the sum to such person as the Magistrate may from time to time direct" in the last part of Sub-section (1) of Section 125 of the Cr. P.C. clearly indicates this aspect. Therefore, in my view, this statutory right of wife and children to claim maintenance cannot be either taken away or curtailed, unless it is shown that either the wife is remarried or the children whether legitimate or illegitimate have become capable of maintaining themselves and in fact are maintaining themselves. Therefore, in my view, such a statutory right of wife or children to claim maintenance cannot be bartered, done away with or negatived by the husband for any reason other than those laid down under the provision itself or the law declared, 'including by setting up an agreement to the contrary'. Even if any such agreement is in existence, in my view, such agreement in addition to it being against public policy would also be against the clear intendment of this provision.
6. Though the phrase "public policy" or "opposed to public policy" has neither been defined in the Contract Act nor anywhere else, yet, by now in the light of various authoritative pronouncements of different Courts, including the Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another, it has come to acquire a definite meaning. It connotes some matter which concerns the public good and the public interest. In any case, it can broadly be stated to be equivalent to the policy of law. Therefore, giving effect to an agreement which overrides this provision of law, i.e., Section 125 of the Cr. P.C., would tantamount to not only giving recognition to something which is opposed to public policy but also would amount to negation of it.
7. The law makes a clear distinction between a void and illegal agreement and a void but legal agreement. In the former case, the Legislature penalises it or prohibits it. In the latter case, it merely refuses to give effect to it. That is what exactly Section 23 of the Contract Act provides for. I am thus clearly of the opinion that the agreement of the type referred to in the question posed may not per se be illegal but it cannot be given effect to being a negation of the statutory right as provided for in this section and being opposed to public policy. In an almost similar situation in the case of Bat Tahira, cited supra, wherein the suit relating to the flat in which the husband had housed the wife resulted in a compromise decree which also settled the matrimonial dispute whereun-der the wife declared that she has now no claim or right whatsoever against the defendant (husband) or against the estate and the properties of the defendant. But, nonetheless, later when the wife filed an application under Section 125 of the Cr. P.C. and the same was challenged by raising the contention of the agreement or compromise, the Hon'ble Supreme Court negatived the contention holding thus:
"No settlement of claims which does not have the special statutory right of the divorcee under Section 125 can operate to negate that claim (....). The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by fulfillment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the Court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under Section 125 - not mathematically but fairly - then Section 127(3)(b) subserves the goal and relieves the obligor, not pro tanto but wholly (...). The proposition, therefore, is that no husband can claim Under Section 127(3)(b) absolution from his obligation under Section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance".
(emphasis supplied) Though the above noted observation of the Hon'ble Supreme Court was while dealing with the content and scope of Section 125 vis-a-vis Section 127(3)(b) of the Cr. P.C., yet, that to my mind makes no difference in the principle when the matter is examined. What ultimately the Hon'ble Supreme Court laid down is that even any customary or contractual settlement has taken place, the same can never annihilate or defeat the right of the wife to future maintenance. The words, as noted by the Hon'ble Supreme Court especially referring to "the payment of illusory amounts by way of customary or personal law" in Bat Tahira's case, cited supra, in my view, clearly indicates that the Court should also take into consideration whether the agreement entered into between the parties would indicate fulfilment of the requirement under Section 127(3) as well as first to find out whether such payment is illusory payment or not.
8. Keeping in view these aspects, if one considers the case on hand, it is clear that on an earlier occasion as long back as in the year 1987 the respondents herein had filed a maintenance application and at that stage the same came to be withdrawn or dismissed as withdrawn on entering into a compromise by both parties. The learned Counsel for the petitioner has produced the copy of the compromise petition which indicates that the wife was agreeable for dismissal of the maintenance application at that stage as she was satisfied with the payment of Rs. 9,000/-as a lump sum payment. In my view, this payment of Rs. 9,000/- cannot be by any stretch of imagination considered as a full settlement of the maintenance as long as the respondents, wife and children, survive. Further, as the 2nd respondent is a minor daughter, the 1st respondent could not have entered into such an agreement on her behalf also. At any rate this amount of Rs. 9,000/- as stated, if taken as a one time payment as long as the petitioner survives would, in my view, amount to an illusory payment. Taking into consideration that the compromise was entered into in the year 1987 or 1988 and the present petition was filed in the year 1997 almost 10 years later, it is to be interpreted that the settlement amount was or at the most could be for the need of that period only. As prayed for by the respondents in the present maintenance application she has noted the present need of maintenance of herself and her minor child, I am of the view that awarding of maintenance by the learned Magistrate and affirmed by the learned Sessions Judge is the just and proper course adopted.
9. Hence, for the reasons stated above in detail, I am of the view that the jurisdiction of the Magistrate under Section 125 is not ousted by any agreement between the parties especially if it is illusory and, if 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 give maintenance. If the Magistrate finds that the wife and children are being neglected or so refused to be maintained despite the agreement, he is duty-bound to award appropriate maintenance under Section 125 of the Cr. P.C. Moreover, as already held, the agreement pleaded being opposed to public policy and against the clear intendment of Section 125 of the Cr. P.C. cannot be enforced or be a shield in Court of law. There fore, in the light of the foregoing discussion, in my view, the question posed is to be answered negative as indicated above. As such, this criminal petition is dismissed.