Gujarat High Court
Rafikbhai Ibrahimbhai Noyda vs State Of Gujarat on 9 March, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/1194/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1194 of 2019
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RAFIKBHAI IBRAHIMBHAI NOYDA
Versus
STATE OF GUJARAT
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Appearance:
MR MAKBUL I MANSURI(2694) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 09/03/2020
ORAL ORDER
The applicant has challenged the judgment and order dated 28.06.2019 passed by learned Principal Judge, Family Court, Junagadh in Criminal Misc. Application No.83 of 2018.
Heard learned advocate for the applicant.
It is submitted by learned advocate for the applicant that respondent is the daughter of the present applicant. That, initially the applicant was agreed to enhance the amount of Rs.150/- per month and learned JMFC was pleased to enhance the maintenance amount up to Rs.1000/- per month to the respondent-daughter. Thereafter, the mother of the respondent-daughter has preferred Criminal Misc. Application No.824 of 2010 before the learned Chief Judicial Magistrate for enhancement of the maintenance amount for daughter. That, during the said proceedings on 07.06.2010 an agreement was Page 1 of 6 Downloaded on : Sun Jun 14 11:51:31 IST 2020 R/CR.RA/1194/2019 ORDER executed between the applicant and mother of the respondent No.2, that the present applicant will pay of Rs.1,00,000/- as permanent maintenance for the daughter and Rs.80,000/- as the maintenance amount for the wife for the period of Iddat. That, now the respondent No.2-minor daughter is not entitled to claim any amount of maintenance as awarded by the learned Family Court, Junagadh to the tune of Rs.2500/- per month. That full and final settlement was arrived at between the applicant and mother of the respondent No.2 and permanent alimony was paid to the respondent No.2. That, at least an amount of Rs.1,00,000/- was paid by the present applicant to the daughter at the time of settlement. It was further submitted by learned advocate for the applicant that wife of the applicant has suppressed the fact of receiving amount of Rs.1,00,000/- towards respondent No.2-minor daughter. Hence, it was requested by learned advocate for the applicant to admit this revision application as the impugned order is illegal and erroneous.
Having considered the facts of the case and submissions made by learned advocate for the applicant, as the impugned order was passed by the learned Family Court, Junagadh granting maintenance of Rs.2500/- per month towards minor daughter with effect from filing of the application, this Court deems not it fit to issue any notice to the respondent No.2 as small and meager amount was awarded. It appears that, Page 2 of 6 Downloaded on : Sun Jun 14 11:51:31 IST 2020 R/CR.RA/1194/2019 ORDER Criminal Misc. Application No.361 of 2005 for maintenance was preferred by the mother and daughter. But, application of the mother was rejected while maintenance was granted to the respondent No.2-minor daughter at Rs.600/- per month. Thereafter, Criminal Revision Application No.51 of 2007 was preferred by the mother of the respondent No.2-minor daughter against the same order which was also rejected by the learned Sessions Court, Junagadh. Thereafter, again Criminal Misc. Application No.697 of 2008 for enhancement of maintenance of minor daughter was preferred wherein the present applicant agreed to enhance the amount of Rs.250/- and therefore, the amount of maintenance was enhanced by the Court up to Rs.850/- per month in favour of the minor daughter. Another Criminal Misc. Application No.454 of 2009 was preferred by the minor daughter for enhancement of the maintenance amount wherein also, present applicant agreed to enhance the amount of Rs.150/- per month and therefore, amount of maintenance was increased up to Rs.1000/- per month in favour of the respondent No.2- minor daughter. At the time of preferring the application i.e. Criminal Misc. Application No.83 of 2018, minor daughter was studying in 8th standard at the age of 14 years.
In the case of Noor Saba Khatoon v. Mohd Ouasim reported in 1997 Law Suit (SC) 987 it is held as under:
both under the personal law and the statutory law (Sec. 125 Cr. P. C.) the obligation of a muslim father, having sufficient means, to maintain his minor children, Page 3 of 6 Downloaded on : Sun Jun 14 11:51:31 IST 2020 R/CR.RA/1194/2019 ORDER unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife. The children of muslim parents are entitled to claim maintenance under Section 125 Cr. P. C. for the period till they attain majority or are able to maintain themselves, whichever is earlier and in case of females, till they get married, and this right is not restricted, affected or controlled by divorcee wife's right to claim maintenance for maintaining the infant child/children in her custody for a period of tow years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced muslim parents to claim maintenance from their father under Section 125 Cr. P. C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married.
In the case of Nizumalhaq v. Phool Begum reported in 2005 Law Suit (MP) 142 it is held as under:
maintenance is a statutory right which has been framed by the legislature irrespective of the nationality, caste or creed of the parties. The statutory liability imposed by Section 125 is, therefore, distinct from the liability under any other law. Thus, where it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the maintenance. 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' the last part of sub-section (1) of Section 125 (earlier to proviso to the same) clearly indicates this. Therefore, this statutory right of children to maintenance cannot be bartered, done away with or negatived by the father by setting up an Page 4 of 6 Downloaded on : Sun Jun 14 11:51:31 IST 2020 R/CR.RA/1194/2019 ORDER agreement to the contrary. Such an agreement in addition to it being against public police would also be against the clear intendment of this provision. Therefore, giving effect to an agreement which overrides this provision of law that, Section 125, Code of Criminal Procedure, would tantamount to not only giving recognition to something which is opposed to public policy but would also amount to negation of it. The law makes a clear distinction between a void and illegal agreement and void but legal agreement. In the former case, the legislature penalises it or prohibits it. In the later case, it merely refuses to give effect to it. This is what exactly Section 23 of the Contract Act provides for.
Thus an agreement whereby this statutory right of children to maintenance was relinquished may not per se be illegal but it cannot be given effect to being negation of the statutory right as provided for in this section and being opposed to public policy. Clauses (b) and (c) of Section 127 (3) do not annihilate or defeat the right of the children to future maintenance.
In the case of Mahesh Handa v. Harshit (Minor) Through His Mother Shweta and Another reported in 2013 Law Suit (P & H) 5924 it is held as under:
It is settled law that the minor has an independent right under Section 125 Cr.P.C. for maintenance. As per provisions of Section 125 Cr.P.C. minor child is entitled to maintenance from his father if he/she is unable to maintain himself/herself. It is no where the allegation of the petitioner that the minor child is possessing any movable or immovable property to maintain himself or the minor child has any source of income to maintain himself. There is no allegation that any amount in the name of minor child has been deposited by way of fixed deposit, out of the amount paid by the petitioner to his wife before the birth of minor child. The wife has no Page 5 of 6 Downloaded on : Sun Jun 14 11:51:31 IST 2020 R/CR.RA/1194/2019 ORDER right to bound down the minor child even before his/her birth. The wife has also no right to enter into compromise on behalf of the unborn child. This compromise is, therefore, against the provisions and spirit of Section 125 Cr.P.C.
Such an agreement paying lump sum amount of Rs.1,00,000/- to minor daughter itself is against public policy and against the clear intendant of this provision. Therefore, giving effect to something, which is opposed to public policy would also amount to negation of it. Thus, the agreement whereby this statutory right of children to maintenance was relinquished may not per se be illegal but it cannot be given effect to being negation of the statutory right as provided for in this Section and being opposed to public policy.
Considering the facts of the case and submissions made by learned advocate for the applicant as well as ratio laid down in the aforesaid citations and as discussed above, the impugned order does not suffer from any illegality nor there is any erred of jurisdiction. This Criminal Revision Application stands dismissed. Notice, if any, stands discharged.
(B.N. KARIA, J) SUYASH Page 6 of 6 Downloaded on : Sun Jun 14 11:51:31 IST 2020