Chattisgarh High Court
Dharampal vs Smt. Shakun Bai 18 Crr/645/2013 ... on 22 April, 2019
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.823 of 2018
Order Reserved on : 14.1.2019
Order Passed on : 22.4.2019
Dharampal, S/o Sukhram Patel, aged about 55 years, R/o Village Janta
(Garra) Post Barhapur, Police Station and Tahsil Dhamdha, District Durg,
Chhattisgarh
---- Applicant
versus
Smt. Shakun Bai, W/o Dharampal, aged about 45 years, R/o Village Takam,
Post Patora, Police Station Berla, District Bemetara, Chhattisgarh
--- Respondent
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For Applicant : Shri H.B.Agrawal, Senior Advocate with Smt. Prabha Sharma, Advocate For Respondent : Shri P.R. Patankar, Advocate
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Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER
1. This revision has been preferred against the order dated 19.7.2018 passed by the Family Court, Bemetara in Criminal M.J.C. No.159 of 2017, whereby the Family Court has allowed the application under Section 125 Cr.P.C. and granted monthly maintenance of Rs.5,000/- in favour of the Respondent.
2. Before the Family Court, the Respondent filed an application under Section 125 Cr.P.C. for grant of maintenance with averments that her marriage was performed with the Applicant according to their customs 34-35 years back. Thereafter, she resided with him for about 2 years. Saying that he does not like her, he did not talk to her. He was also saying that he was having a relationship with another woman. Thereafter, when she went to her maternal house on tija festival, he did not come to take her back. When her family 2 members took her to her matrimonial house, he did not allow her to enter his house and locked the door of his house from outside. Since then she is residing separately from him. He has also performed second marriage. Presently, she is unable to maintain herself. He owns 80-90 acres of agricultural land and earns Rs.50- 60 Lakhs per year. In his reply, the Applicant has admitted the fact that his marriage was performed with the Respondent 30-35 years back. After the marriage, she lived with him at his house for about 1 week only and thereafter she returned to her maternal house. Thereafter, he tried to bring her back many times, but she did not return. It was further pleaded by him that on 3.12.2002, the wife sent him a legal notice for maintenance through her Advocate. Thereafter, on 24.3.2003, a village meeting took place in which with the consent of the Respondent and the Applicant, the community members executed divorce between them. In that meeting, a compromise deed was also executed in which a permanent alimony of Rs.2,20,000/- was settled to be given by the Applicant to the Respondent and on that day itself the Respondent was given a sum of Rs.1,10,000/- by the Applicant. Thereafter, on 9.5.2003, the remaining amount of Rs.1,10,000/- was given by the Applicant to the Respondent. Since the divorce took place between them with their consent and after the divorce the Applicant has given permanent alimony to the Respondent in full and final, the Respondent is not entitled to get any maintenance. It was further pleaded that the Respondent has 5 acres of land in Village Takam from which she earns sufficient income. Therefore, she is not entitled to get any maintenance.
3. Before the Family Court, the Respondent examined herself as 3 Applicant Witness No.1. She also examined Laxman Patel as Applicant Witness No.2 and Netram as Applicant Witness No.3. The Applicant examined himself as Non-Applicant Witness No.1. Both the parties have also submitted certain documents before the Family Court. After recording of the evidence and hearing arguments on their behalf, the Family Court, vide the impugned order dated 19.7.2018 has allowed the application and granted monthly maintenance of Rs.5,000/- in favour of the Respondent. Hence, this revision by the husband/Applicant.
4. Learned Senior Advocate appearing for the Applicant submitted that the Respondent has admitted the execution of agreement dated 24.3.2003 (Ex.D2), according to which a final settlement had taken place between her and the Applicant and the Applicant had paid her a permanent alimony of Rs.2,20,000/- as a full and final settlement and by virtue of the said agreement the Applicant and the Respondent have also arrived at the conclusion of dissolution of their marriage and they are residing separately with their consent. Therefore, the Respondent is not entitled to get any maintenance from the Applicant.
5. Learned Counsel appearing for the Respondent submitted that though the Respondent has admitted the execution of the said agreement dated 24.3.2003, in that agreement it is not contained that the payment of Rs.2,20,000/- by the Applicant to the Respondent was a full and final settlement. Therefore, the Family Court has rightly granted the maintenance in favour of the Respondent.
6. I have heard Learned Counsel appearing for the parties and 4 perused the record with due care.
7. During her cross-examination, the Respondent has admitted the fact that her marriage was solemnised in the year 1982 and she left the house of the husband in the year 1985. Since then she is residing separately. Thereafter, she first filed an application for grant of maintenance in the year 2017. In paragraph 12 of her deposition, she has also admitted that on 24.3.2003, a social meeting was convened at Durg (Chhattisgarh). She has also admitted that she herself had purchased the stamp paper for execution of the agreement. She has also admitted that on 24.3.2003 she had received a sum of Rs.1,10,000/- paid by the Applicant and thereafter again on 9.5.2003 she received a sum of Rs.1,10,000/- from the Applicant. The agreement (Ex.D2) dated 24.3.2003 reads thus:
"bdjkj ukek i{kdkj ua-1- %& Jherh 'kdqu tkSts /kjeiky yks/kh mez yxHkx 32 o"kZ lkfdu rkde rglhy csjyk] ftyk nqxZ i{kdkj ua-2- %& /kjeiky vk- Jh lq[kjke yks/kh lkfdu tkrk/kjkZ rglhy /ke/kk] ftyk nqxZ N-x-
ge i{kdkj ua- 1 ,oa 2 bdjkj djrs gSa fd i{kdkj dzekad 1 ,oa 2 dk fookg yxHkx 21 o"kZ iwoZ gqvk Fkk A nksuksa i{kdkj yxHkx 20 o"kZ ls vyx fuokl dj jgs gSa A bl ifjfLFkfr esa i{kdkj dz-2 Hkj.k iks"k.k gsrq i{kdkj dz-1 dks 2]20]000@&:- v{kjh nks yk[k chl gtkj :i;k nsxkA i{kdkjx.k ,d nwljs ds izfr oSokfgd laca/k foPNsn dj jgs gSa A vc iwjk jde izkIr djus ds i'pkr i{kdkj dz- ,d nwljs ds fo:) fdlh Hkh izdkj dk nkok ugha djsaxsA i{kdkj ua-1 dks vkt fnukad 24 ekpZ 2003 fnu lkseokj dks 1]10]000@&:- v{kjh ,d yk[k nl gtkj :i;k x;k 'ks"k 1]10]000@&:- v{kjh ,d yk[k nl gtkj :i;k lkr ebZ 2003 rd fn;k tk;sxkA ¼7-5-2003½ ge i{kdkj x.k bdjkjukek i<+dj] le>dj LosPNk ls Lohdkj dj vkt fnukad 24 ekpZ 2003 dks gLrk{kj djrs gSa A ,d yk[k nl gtkj :ih;k uxn izkIr fd;k xokg gLrk{kj 'kdqu ckbZ 1- Mk- th-,l- lqeu i{kdkj dz-1 2 jlhnh fVdV 2- fxj/kjyky oekZ i{kdkj dz-2 gLrk{kj /kjeiky oekZ"5
8. The execution of the said agreement has been admitted by the Respondent, but before the Family Court, she has deposed that she was not read over the contents of the agreement. She has further deposed that in the social meeting held on 24.3.2003, the Applicant had stated that he will give her 10 acres of land or cash of Rs.20,00,000/-. But, during her cross-examination, in paragraph 24, she has categorically admitted the fact that no direct talk had taken place between her and the Applicant about giving of 10 acres of land or cash of Rs.20,00,000/- to her by the Applicant. Though her witnesses Laxman Patel and Netram have also deposed that the Applicant had averred about giving of 10 acres of land or cash of Rs.20,00,000/- to the Respondent, both these witnesses have admitted the fact that this talk of giving of land or cash of Rs.20,00,000/- was not done in their presence. As stated by witness Laxman Patel, this was told to him by the Respondent. But, the Respondent herself has admitted that no such direct talk had taken place between her and the Applicant. Thus, talk of giving of 10 acres of land or cash of Rs.20,00,000/- by the Applicant to the Respondent had taken place between them cannot be relied upon. Had such talk taken place between them, the Respondent, at the time of receiving the first installment of Rs.1,10,000/- on 24.3.2003 from the Applicant would have raised an objection regarding giving of 10 acres of land or cash of Rs.20,00,000/- to her by the Applicant or would have raised such objection even thereafter on 9.5.2003 at the time of receiving the second installment of Rs.1,10,000/- by her from the Applicant. 14 years thereafter, she directly filed the application under Section 125 Cr.P.C. for grant of maintenance and in between she never raised any objection or made any claim regarding 10 acres of land 6 or cash of Rs.20,00,000/-. This conduct of the Respondent also goes to show that no such talk had taken place between her and the Applicant.
9. Thus, it is clear that giving of the amount of Rs.2,20,000/- by the Applicant to the Respondent is full and final settlement arrived at between them and from the agreement dated 24.3.2003 (Ex.D2), it is also established that vide the said agreement with their mutual consent they dissolved their marriage and are residing separately since then. Therefore, as provided in Section 125(4) Cr.P.C., the Respondent is not entitled to get any maintenance. Thus, the finding of the Family Court is perverse and not in accordance with law.
10. Consequently, the revision is allowed to the extent indicated above.
11. Record of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel) JUDGE Gopal