Uttarakhand High Court
Jitendra Pal Singh vs State Of Uttarakhand And Another on 4 August, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 292 of 2022
Jitendra Pal Singh ........Revisionist
Versus
State of Uttarakhand and another ........Respondents
Present:-
Mr. Aditya Pratap Singh, Advocate for the revisionist.
Mr. V.K. Jemini, Deputy Advocate General with Ms. Meena Bisht, Brief
Holder for the State.
Mr. Harshpal Sekhon, Advocate for the respondent no. 2.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) The challenge in this revision is made to the order dated 26.05.2022 passed in Criminal Misc. Case No. 214 of 2021, Km. Rashmeet Kaur v. Jitendra Pal Singh, by the court of Judge, Family Court I, Rudrapur, District Udham Singh Nagar. By the impugned order, an application for interim maintenance filed by the respondent no. 2 ("the private respondent" - she is minor daughter of the revisionist) has been allowed and the revisionist has been directed to pay Rs. 20,000/- per month interim maintenance to her.
2. This case has a history. Initially, in the year 2012, an application for maintenance was filed by the 2 mother of the private respondent, for herself and for the private respondent, seeking maintenance from the revisionist. It was registered as Family Suit No. 88 of 2012, Smt Saranjeet Kaur and another v. Jitendra Pal Singh ("the case"). The case was decided on 20.09.2014 and the revisionist was directed to pay total Rs. 8,000/- per month to the private respondent and her mother, as maintenance.
3. It appears that in the meanwhile, the mother of the private respondent, who was wife of the revisionist, filed an FIR against the revisionist and others, in which after investigation, charge sheet was submitted and cognizance taken. Those proceedings were challenged by the revisionist before this Court in Criminal Misc. Application No. 387 of 2015, Narendra Singh and another v. State and others ("the petition"). The parties entered into a compromise in the petition on 09.05.2015. They recorded the following settlement:
"Parties are present Ms. Sharanjeet Kaur is present with her father Mr. Baldev Singh, Mr. Jitendra Pal Singh is present with his Ld. Counsel, J.S. Virk. Parties have agreed to settle all their disputes which have arises between them. As per terms of the compromise the parties have agreed in following terms.3
(1) The custody of minor child Rashmeet Kaur will maintain with the mother only till the time she attains majority.
(2) Jitendrapal Singh was agreed to give Rs.21,50,000/- (Twenty one Lakhs Fifty Thousand only) as full and final settlement amount towards maintenance alimony to Ms. Sharanjeet Kaur for which she has also agreed. She will not claim anything from Jitendrapal Singh in further towards maintenance alimony and property etc. (3) Ms. Sharajeet Kaur has agreed to withdraw all cases filed by her against her husband father in law, mother in law and maternal uncle S. Singh. The details of the case are Criminal Case No.163/12, titled as Sharanjeet Kaur vs. Jitendrapal Singh others, u/s 498A, 323, 504, 506 IPC. Maintenance case under section 125 Cr.P.C. bearing no.88/12 pending in the family court of Khatima will be withdrawn by her. She has also agreed to withdraw the execution proceedings filed in family court Khatima. She has also agreed to withdraw Domestic Violence Case bearing no. 303/12 pending in the court of JM Khatima.
(4) Jitenderpal Singh has also agreed to withdraw all the cases which he has files against Ms. Sharanjeet Kaur and her family members. He will withdraw his application u/s 340 CrPC pending in family court, Khatima.
(5) In the light of above both the parties with go for quashing of the Misc. application bearing no.384/2015 is pending in the High Court.
(6) Parties have agreed that they will now file mutual divorce (13B HMA) in the Family court Khatima and parties have agreed that the agreed amount of Rs. (21,50,000/-) will be given as her for mutual divorce.
(7) Once mutual divorce is granted by the family court the parties shall withdraw all cases against each other.4
(8) Parties have made the terms of the compromise and agreed to abide by the terms of the compromise.
(9) Compromise has been enters into without fear, undue influence coercion, etc. (10) Parties shall move the court within two months for mutual divorce and thereafter for withdrawal of all cases filed against each other.
Sd/ 09.05.2015"
4. In fact, prior to that, the private respondent and her mother had filed an application for recovery of arrears of maintenance that was awarded to them by order dated 20.09.2014 passed in the case. The said application was registered as Misc. Criminal Case No. 362 of 2014, Smt. Sharanjeet Kaur and another v. Jitendra Pal Singh before the court of Judge, Family Court, Rudrapur, District Udham Singh Nagar ("the recovery case"). Pursuant to the compromise entered into between the parties in the petition on 9.5.2015, the mother of the private respondent did not press the recovery case. On 28.1.2016, in the recovery case, the court observed that since the applicant does not want to press the case, the application under Section 125 CrPC is accordingly rejected.5
5. Thereafter, again on 18.10.2021, the private respondent filed an application seeking maintenance from the revisionist through her mother, which was registered as Family Suit No. 214 of 2021, Km. Rashmeet Kaur v.
Jitendra Pal Singh in the court of Judge, Family Court I, Rudrapur, District Udham Singh Nagar ("the second case"). In the second case, the private respondent also filed an application for interim maintenance, which has been allowed by the impugned order dated 26.5.2022.
6. Heard learned counsel for the parties and perused the record.
7. Learned counsel for the revisionist would submit that in the petition, the parties have already entered into a compromise. It is argued that the private respondent was then represented by her mother. The custody of the private respondent was given to her mother and keeping in view this fact, the revisionist had agreed to pay Rs. 21,50,000/- to the mother of the private respondent. It is argued that, in fact, the amount of Rs. 21,50,000/-, which was paid by the revisionist to the mother of the private respondent included the expenses/maintenance of the private respondent.6
8. Learned counsel for the revisionist would also argue that had it been not so, the mother of the private respondent would have withdrawn the recovery case only qua her and not qua the private respondent. Learned counsel also raised the following points:-
(i) After the compromise in the petition, both the parties moved. The revisionist is married. The mother of the private respondent has also married.
(ii) The private respondent is being represented by her mother now. She was being represented in the case by her mother in the year 2010. In the compromise, which was entered into between the parties in the petition on 09.05.2015, the custody of the private respondent was given to her mother. The mother of the private respondent was given Rs. 21,50,000/-, but in the maintenance application which has been filed by the private respondent through her mother, nothing has 7 been mentioned as to where the money has been utilized? Whether it has been kept in term deposits or invested otherwise?
9. In view of what is argued hereinbefore, learned counsel for the revisionist would submit that the second application for maintenance is not maintainable. Hence, the impugned order deserves to be set aside.
10. On the other hand, learned counsel appearing for the private respondent would submit that the compromise dated 9.5.2015, which was entered into between the parties in the petition was not qua the private respondent. It is argued that para 2 of the compromise categorically speaks that Rs. 21,50,000/-
was agreed to be given by the revisionist as full and final settlement amount towards maintenance alimony to the mother of the private respondent and not to the private respondent.
11. Learned counsel for the private respondent has also placed reliance on the principle of law as laid down by the Hon'ble Supreme Court in Ganesh v. 8 Sudhirkumar Shrivastava and others, 2020(20) SCC 787, Vikraman Nair and another v. Aishwarya and others, 2018 SCC OnLine Ker 3492 and Fateh Saharan v. Rohit Saharan, 2022 SCC Online Del 205.
12. In the case of Ganesh (supra), the Hon'ble Supreme Court, inter alia, observed as hereunder:-
"7. Before we part with, we must also express our reservation insofar as Para 6 is concerned, which was incorporated in the order on 8-11-2017 by the Principal Judge, Family Court, Aurangabad. It was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan is concerned but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned."
13. In the case of Vikraman Nair, the Kerala High Court in para 24 has observed as hereunder:-
"24. When an agreement is entered into by the wife and the husband, as a part of compromise filed in the court or otherwise, whereby the wife relinquishes or waives the right to claim maintenance in future from the husband, for herself or for the minor children, such an agreement is opposed to public policy and it does not preclude her from claiming maintenance under Section 125 of the Code of Criminal Procedure. This is the consistent view taken by various High Courts. It has been held that statutory right which has been conferred on a 9 person under a public policy, cannot be waived by the said person by an agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872 and the same cannot be enforced in a court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. This is a matter of public policy and not of an individual (See Ranjit Kaur v. Pavittar Singh, 1992 Cri.L.J 262, Hanamant Basappa Choudhari v. Laxmawwa, 2002 Cri.L.J 4397, Rajesh Kochar v. Reeta Kumari, 2002 Cri.L.J 3357, Sushil Kumar v. Neelam, 2004 Cri.L.J 3690, Mahesh Chandra Dwivedi v. Manorma, 2009 Cri.L.J 139 and Varshaben Himantlal Vejani v. State of Gujarat, 2017 Cri.L.J 869)."
14. In the case of Fateh Saharan, the Delhi High Court in para 2 observed as hereunder:-
"2. We may observe that when the respondent's spouse i.e., the mother of the appellant obtained the divorce by mutual consent, the maintenance was fixed in respect of the appellant minor child at the rate of Rs. 5,000/- per month. It goes without saying that the appellant being a minor, is not bound by that settlement, and he is entitled to claim maintenance for himself for his upbringing from the respondent i.e., his father."
15. Learned counsel for the revisionist would submit that proposition of law is not in dispute. The mother cannot relinquish the rights of her minor child by 10 any agreement that may be entered into by her. But, it is argued that in the instant case, the mother of the private respondent, in fact, has received the entire maintenance for herself and for the child. It is argued that it is not a case of relinquishment of right. In fact, it is acceptance of all the dues on behalf of the child also.
16. A very small question needs interpretation that revolves around the interpretation of compromise entered into between the parties on 9.5.2015 in the petition. Admittedly, in the case, the maintenance was granted to the private respondent and her mother on 20.09.2014. The private respondent was to be paid Rs. 5,000/- per month maintenance. When arrears was not paid, the mother of the private respondent moved an application for recovery of arrears of maintenance, which is the basis of the recovery case.
17. The revisionist and the mother of the private respondent entered into a compromise in the petition. It has already been extensively quoted hereinbefore. Paragraph Nos. 1 and 2 have been discussed widely during the course of arguments. Paragraph 1 of the compromise provides for the custody of the child with the 11 mother. Paragraph 2 of the compromise is important. At the cost of repetition, it may be stated that according to it, the revisionist had agreed to give Rs. 21,50,000/- as full and final settlement amount towards maintenance alimony to Ms. Sharanjeet Kaur, the mother of the private respondent, for which she had also agreed.
18. Section 91 of the Indian Evidence Act, 1872 ("the Evidence Act") inter alia, provides that the term of any contract, etc. may be produced by production of the document itself or by secondary evidence, if permissible. The document has been produced in the instant case, but it is being read with the intention of the parties. Section 92 of the Evidence Act makes provision with regard to exclusion of oral evidence when there is a document.
19. Sections 91 and 92 of the Indian Evidence Act are as follows:
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. -- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, 12 except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.-- Wills admitted to probate in India may be proved by the probate."
* * * * * "92. Exclusion of evidence of oral agreement.
-- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
...........................
..........................."
20. In the instant petition, alimony was agreed to be paid to the mother of the private respondent. It does not speak of any maintenance for the private respondent, though it makes provision for the custody of child.
21. The agreement dated 09.4.2015 cannot be read by inferring the intention of the parties. It has to be read 13 as written in it and what is written in it with regard to maintenance has already been quoted above. The revisionist agreed to pay maintenance alimony to the mother of the private respondent. It is specific to the mother of the private respondent. It is not with regard to the private respondent.
22. It has also been argued on behalf of the revisionist that had the agreement dated 9.5.2015 be entered in the petition only on behalf of the mother of the private respondent, she would not have withdrawn the recovery case in full. It is argued that in such eventuality, she would have withdrawn the recovery case qua her alone. It is true that recovery case was not pressed by the mother of the private respondent and accordingly it was disposed of. But, it cannot be interpreted to infer that, in fact, the claim of the private respondent had also been settled by her mother.
23. Although the order dated 20.01.2016 passed in the recovery case records that in view of the fact that the mother of the private respondent no. 2 does not intend to press the application, the application under Section 125 of the Code is rejected accordingly. This observation 14 perhaps is against the factual and legal context because what the mother of the private respondent had not pressed was an application for arrears of maintenance. Based on it, the application under Section 125 of the Code could not have been rejected because it had already been allowed by order dated 20.09.2014 passed in the case.
24. In view of what is stated hereinabove, this Court is of the view that, in fact, based on the settlement entered between the revisionist and his wife, who is the mother of the private respondent, it cannot be said that claims of the private respondent had already been settled by the revisionist with her mother.
25. The mother of the private respondent had settled her claim. She could not have proceeded further to claim maintenance pursuant to the order dated 20.09.2014 passed in the case, but the private respondent, who was also given Rs. 5,000/- per month maintenance by that order, cannot be deprived of to recover that amount. In fact, the order dated 20.09.2014 passed in the case is still in existence in so far as it relates to the private respondent. Therefore, the second 15 maintenance application was not maintainable and on that ground, the impugned order deserves to be set aside.
26. The impugned order dated 26.05.2022 for the above reason, is set aside.
27. The revision is disposed of accordingly.
(Ravindra Maithani, J.) 04.08.2022 Avneet/