Mahafujur Rahaman vs State Of U.P. And 4 Others
2018 Latest Caselaw 2511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved on 13th August, 2018
 
Delivered on 12th September, 2018
 
Court No.44
 
Case:- CRIMINAL REVISION NO.- 2470 of 2018
 
Revisionist :- Mahafujur Rahaman
 
Opposite Party :- State of U.P. And 4 Others
 
Counsel for Revisionist :- Surya Pratap Singh Parmar, Adeel Ahmad Khan
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Rajeev Misra, J.

1. This criminal revision is directed against the judgment and order dated 16th May, 2018 passed by the Sessions Judge, Maharajganj in Criminal Appeal No. 51 of 2017 (Mahafujur Rahaman vs. Smt. Rehana & Others) filed by the revisionist under Section 29 of the Protection of Women from Domestic Violence Act 2005, and against the order dated 19th July, 2017 passed by the Additional Chief Judicial Magistrate, Maharajganj in Case No. 46 of 2010 (Rehana & Others vs. Mahafujur Rahman & Others) arising out of an order dated 15th November, 2007, under Section 12-A of the Protection of Women from Domestic Violence Act, 2005, Police Station Kotwali, District Maharajganj, as modified vide order dated 30th October, 2009.

2. I have heard Mr. Surya Pratap Singh Parmar, learned counsel for the revisionist and the learned A.G.A. for the State.

3. The facts giving rise to the present criminal revision may be summarized in a nut shell as under :

The revisionist Mahafujur Rahaman was married to the opposite party no.2 Rehana in accordance with the Muslim Rites and Customs. From this wed1-11lock, three children namely, Faisal, Nadeem and Nishat Khatoon were born. Subsequently, it appears that the revisionist deserted his wife and abandoned his children. As a consequence of the aforesaid, the opposite party nos. 2 to 5 herein, namely, Smt. Rehana and her children filed an application dated 15th June, 2007 in terms of Sections 12, 18,19, 20 & 22 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act of 2005"). This application filed by the opposite party no.2 came to be allowed by the Trial Court by means of the order dated 15th November, 2007. The Trial Court awarded compensation to the tune of Rs. 25,000/- and further directed that residential rights be granted to the opposite party nos. 2 to 5 herein in terms of Section 19 of the Act of 2005. This order dated 15th November, 2007 was carried in an appeal filed by the revisionist being Criminal Appeal No. 11 of 2009 (Mahafujur Rahman & Others vs. Rehana & Others) that was partly allowed by the Appellate Court vide order dated 30th October, 2009. The Appellate Court set aside the order dated 15th November, 2007 passed by the Magistrate, but directed that a sum of Rs. 1,200/- each i.e. Rs. 4,800/- shall be paid by the appellant nos.2 to 4 to the opposite party nos. 2 to 5 herein, out of the amount sent by the appellant no.1 Mahafujur Rahman from Saudia Arabia. As a result of the aforesaid, the residential rights granted by the Trial Court in favour of the opposite party nos. 2 to 5 herein came to an end. The amount of compensation as awarded by the Appellate Court was not paid. Consequently, the opposite party nos. 2 to 5 were compelled to file an application dated 8th January, 2010 for implementation of the order dated 30th October, 2009 for recovery of the amount payable to them in terms of the aforesaid order.

4. The Trial Court passed a detailed order dated 8th February, 2010 on the said application, whereby recovery warrant was issued against the revisionist and further a direction was issued to the opposite party no.2 herein to supply the details of the property of the revisionist, so that the same may be attached for recovering the amount payable in terms of the order dated 30th October, 2009. Thereafter, the Magistrate passed an order dated 24th November, 2010, whereby the application filed by the opposite party no.2 for service of warrant upon the revisionist through the Indian Embassy at Saudi Arabia or by registered post, was considered and it was directed that the recovery warrant may be served upon the revisionist through the Indian Embassy at Saudi Arabia and the matter was posted for 24th January, 2011. At this juncture, the revisionist appeared before the Court below and agreed to pay the entire amount payable in terms of the order dated 30th October, 2009 in 8 monthly installments. Consequently, the Magistrate recalled the recovery warrant and posted the matter for 28th March, 2011.

5. It is the case of the revisionist that subsequently, the amount of Rs. 2,30,250/- was deposited by the revisionist through different modes before the Court below, details of which have been mentioned in paragraph-16 of the affidavit filed in support of the present criminal revision. Thereafter, the revisionist again defaulted in the payment of maintenance payable in terms of the order dated 30th October, 2009. It is alleged by the revisionist that on 4th April, 2016, a compromise was jointly filed by the husband and his wife in Criminal Revision No.102 of 2014 (Mahafujur Rahman vs. Rehana & Others), wherein it was agreed between the parties that the opposite party no.2 shall maintain the children and shall look after them and no amount is due between the revisionist and the opposite party no.2. Therefore, it was prayed that the revision may be decided on the basis of the compromise so entered into between the parties. However, as the amount of maintenance payable under the order dated 30th October, 2009 was not being paid, the opposite party no.2 filed an application dated 22nd February, 2017 for recovery of the maintenance amount payable in terms of the order dated 30th October, 2009 for the period between August, 2011 to January, 2017 i.e. Rs. 4,21,600/-. In opposition to the said application dated 22nd February, 2017, the revisionist filed an application dated 10th April, 2017 stating therein that no liability is standing against the revisionist as pursuant to the earlier recovery warrant issued against the revisionist, the entire liability has been satisfied and secondly, the parties have settled the dispute outside the Court under which the opposite party no.2 has agreed to maintain the children and bear the expenses, as is explicit from the joint application dated 4th February, 2016 filed in Criminal Revision No. 102 of 2014 (Mahafuzur Rahman vs. Rehana & Others). This application dated 10th April, 2017 was followed by another application dated 20th May, 2017 by which it was prayed that the application dated 22nd February, 2017 filed by the opposite party no.2 be rejected in view of the averments contained in the earlier application dated 10th April, 2017. The Additional Chief Judicial Magistrate, Maharajganj vide order dated 19th July, 2017 dismissed the applications dated 10th April, 2017 and 19th July, 2017 filed by the revisionist. Feeling aggrieved by the order dated 19th July, 2017, the revisionist filed a criminal appeal before the District and Sessions Judge, Maharajganj in terms of Section 29 of the Act of 2005, which was registered as Criminal Appeal No. 51 of 2017 (Mahafujur Rahman vs. Smt. Rehana & Others). The aforesaid criminal appeal came to be dismissed vide order dated 16th May, 2018. Thus aggrieved by the aforesaid orders dated 19th July, 2017 and 16th May, 2018 as detailed above, the revisionist has now come before this Court by means of the present criminal revision.

6. Learned counsel for the revisionist in challenge to the aforesaid two orders has submitted that by virtue of the provisions contained in Section 28 of the Act of 2005, the provisions of Code of Criminal Procedure, 1973 became applicable and, therefore, no amount exceeding the period of one year can be recovered by reason of sub-Section (3) of Section 125 Cr.P.C. Therefore, it is urged by the learned counsel for the revisionist that the recovery sought to be made from the revisionist in terms of the order dated 30th October, 2009 for the period between August, 2011 to January, 2017, is bad to that extent. He next submits that in view of the application dated 4th February, 2016, jointly filed by the revisionist and the opposite party no.2, which was described as a deed of compromise with the prayer that the revision be decided in accordance with the terms of the compromise as contained in the deed of compromise, no liability can be said to be outstanding against the revisionist as per the aforesaid application jointly filed in Criminal Revision No. 102 of 2014 (Mahafujur Rahman vs. Rehana & Others) on the basis of the compromise as contained in the said deed of compromise.

7. Before proceeding to consider the correctness of the aforesaid submissions made by the learned counsel for the revisionist, it is imperative to take notice of certain provisions of the Act of 2005, which are relevant in the context of the controversy in hand. Accordingly, Sections 12, 20, 28 and 36 of Act of 2005 and Rule 6 of the Protection of Women from Domestic Violence Rules, 2006 (hereinafter referred to as the "Rules of 2006") are quoted here-under:

"Section 12-. Application to Magistrate.--

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.

Section-20. Monetary reliefs.--

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to--

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

28. Procedure.--

(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

Section-36. Act not in derogation of any other law.--The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.

Rule-6. Application to the Magistrate: (1) Every application of the aggrieved person under Section 12 shall be in Form II or as nearly as possible thereto.

(2) An aggrieved person may seek the assistance of the Protection Officer in preparing her application under Sub-rule (1) and forwarding the same to the concerned Magistrate.

(3) In case the aggrieved person is illiterate, the Protection Officer shall read over the application and explain to her the contents thereof.

(4) The affidavit to be filed under Sub-section (2) of Section 23 shall be filed in Form III.

(5) The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)."

8. On a conjoint reading of Rule 6 of the Rules of 2006 and Sections 20 and 36 of the Act of 2005 as noted herein above, it is explicitly clear that the Act of 2005 has overriding effect over other provisions of law operating Pari Materia. Consequently, the Act of 2005 does not ipso facto incorporate the provisions of the Code of Criminal Procedure, but certain exception to the same have been carved out as is evident from the perusal of sub-section (2) of Section 28 of the Act of 2005. Sub-Section (2) of Section 28 clearly provides that nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of Section 23 of the Act of 2005. Section 36 of the Act of 2005 clearly provides that the provisions of Act, 2005 shall be in addition to and not in derogation of the provisions of any other law.

9. Thus, the argument raised by the learned counsel for the revisionist that no recovery of the amount payable towards maintenance in terms of the orders passed under the Act of 2005 is recoverable beyond the period of one year proceeds on a parochial interpretation of Section 28 of the Act of 2005. Section 28 of the Act incorporates the word "proceeding". Therefore, how the proceedings in respect of Sections 12, 18, 19, 20, 21, 22, 23 and 31 of the Act of 2005 shall be conducted, is provided for in Section 28 of the Act of 2005. However, sub-section (2) of Section 28 of the Act of 2005 clearly provides that what is contained in sub-Section (1) of Section 28 is not final. The use of the word "proceeding" in Section 28 of the Act of 2005 relates to the procedural part and does not create an injunction upon the power of the court in relation to Act of 2005 for enforcing its own orders. The intention of the Legislature is clear, as the Legislature has omitted to use the words ipso facto or mutatis mutandis in relation to Section 25 or Section 36 of the Act of 2005.

10. Revisionist before this Court in challenge to the recovery made in terms of the order dated 30th October, 2009 has also urged that in view of the application dated 4th April, 2016 jointly filed by the revisionist and the opposite party no.2 in Criminal Revision No. 102 of 2014 (Mahafujur Rahman vs. Rehana & Others), which was described as a deed of compromise and a prayer was also made that the said criminal revision be decided in terms of the compromise, no liability can be said to be standing against the revisionist towards the amount of maintenance payable to the opposite party nos. 2 to 5 herein in terms of the orders passed under the Act of 2005.

11. There is nothing on record to show that the alleged compromise application dated 4th April, 2016 filed in Criminal Revision No. 102 of 2014 was accepted by the court or acted upon. It is further not clear from the pleadings that on the basis of the aforesaid compromise, the effect of the orders passed in proceedings under the Act of 2005 was also got diluted by moving an appropriate application before the court concerned. Therefore, no benefit can be derived by the revisionist on the basis of the aforesaid compromise application.

12. It may be noted here that neither in the applications dated 10th April, 2017 and 19th July, 2017 filed before the Magistrate (Annexure No. 8 to the affidavit) in opposition to the impugned recovery proceedings nor in the memo of appeal filed before the court below by the revisionist against the order dated 19th July, 2017, this ground was taken. They are rather conspicuous by their absence. Therefore, the argument raised by the learned counsel for the revisionist, which is a factual argument, technically speaking cannot be raised for the first time before this Court.

13. At this stage, it will be useful to refer to the Division Bench judgment of this Court in the case of Nand Kishor Gaur vs. Regional Deputy Director of Education, Meerut & Others reported in 2017 (11) ADJ 606, wherein the following has been observed in paragraphs-60, 61, 62, 63, 64, 65 and 66 regarding the effect and nature of a compromise between the parties:

"60. This gives rise to a further question about the impact of the compromise between the private parties and the silent stand of the State without either approving or disapproving the said compromise. It is for this reason that we have to analyze the outcome of the said compromise, as the learned Single Judge has concluded that the appellant will be deemed to have abandoned his entire claim on the post of Head Master, and on account of his having attained the age of superannuation during the litigation, he cannot be granted the benefit of being appointed as a Sub-Deputy Inspector of Schools.

61. In order to appreciate the impact of the compromise, it would be necessary to deal with the theory, the practice and the applicability of the principles of compromise in order to apply them on the facts of the present case so as to deduce an opinion on the issue of abandonment as observed by the learned Single Judge.

62. It would therefore be apt to begin with the proposition that a settlement can be arrived at even without a dispute or after a dispute has arisen. The settlement can be private and also with the aid of external agencies including a Court. In the instant case the settlement is an outcome of a dispute already raised that had taken the shape of a writ petition. During the course of the pendency of the writ petition, the application for disposing of the writ petition accompanied by the terms of settlement was filed, and the writ petition was dismissed as infructuous while noticing the said fact. This was, therefore, a settlement arrived at in a Court proceeding but the compromise was not made with the State that was also a respondent in the writ petition and secondly, it was not with the aid of the Court but an out of Court settlement on the strength whereof the cause was treated as infructuous.

63. The passing of the order of the Court, therefore, brought to an end the litigation that was being pursued by the parties on acknowledging reciprocal terms whereby certain rights were given up in lieu of substituted rights. To understand this in the light of the claim and in the light of the word "abandoned" used in paragraph 4 of the compromise affidavit, it is necessary to observe that the aforesaid term "abandonment" as a term of compromise in the present case has to be understood not as a unilateral surrender or complete renunciation of rights but as an agreement by way of commitments that are laced with yielding opposite claims. It is a mutual concession and an adjustment amicably arrived at in order to compose differences by waiving certain rights and substituting the same by a new promise. The outcome of such a settlement is to give up all future litigation for the same cause of action, and to the extent of surrender made, no legal retention of rights in respect of such surrender stands acknowledged. The claims admitted as per the paragraphs of the affidavit in the present case amount to avoiding a suit and end litigation on the strength whereof new rights flow. It precludes the parties from bringing any fresh cause of action on the same grounds in future but at the same time it does not amount to an admission of either the validity or invalidity of the orders that were under challenge giving rise to the cause of action.

64. A compromise is a bilateral surrender giving away partly something to the other side on commonly accepted terms. The word compromise in Latin is spelt as compromittere (comp=mutually; promittere=promise). According to the definition of the word compromise in Black's Law Dictionary (8th South Asian Edition), it is an agreement between two or more persons to settle matters in dispute between them either on a real or supposed claim in which each party surrenders something in concession to the other. It is a middle course.

65. It is a pledge whereby parties amicably divest themselves to have the best of bargain. A mutual waiver with adjustments that seeks to enforce a substituted position agreed to by both parties is the object of a compromise. The dispute is harmonized in a legally designed way to draw the curtain for all times in future. Reference be also had to paragraph no.27 of the decision in the case of Bimal Kumar and another Vs. Shakuntala Debi and others, reported in 2012 (3) SCC, 548 extracted hereinunder :

"It is to be borne in mind that the term 'compromise' essentially means settlement of differences by mutual consent. In such process, the adversarial claims come to rest. The cavil between the parties is given a decent burial. A compromise which is arrived at by the parties puts an end to the litigative battle. Sometimes the parties feel that it is an unfortunate bitter struggle and allow good sense to prevail to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory process commences and eventually, by consensus and concurrence, rights get concretised. A reciprocal settlement with a clear mind is regarded as noble. It signifies magnificent and majestic facets of the human mind. The exalted state of affairs brings in quintessence of sublime solemnity and social stability."

66. Reference be also had to paragraph no.7 of the decisions in the case of State of Punjab and others Vs. Phulan Rani and another, 2004 (7) SCC, 555 and in the case of State of Punjab and others Vs. Ganpat Raj, 2006(8) SCC, 364."

14. Thus, when the application dated 4th April, 2016, which is alleged to be a deed of compromise and jointly filed by the parties is examined in the light of the observations made by the Division Bench of this Court in the case of Nand Kishor Gaur (Supra), the Court finds that the said application is totally unilateral in character on account of which the Court does not find any good reason to believe the same.

15. From the discussions made herein above, it is explicitly clear that the prohibition contained in Section 125 (3) Cr.P.C. curtailing the right of recovery of the amount of maintenance beyond the period of one year, cannot be made applicable in the present case. As already stated above, the Act of 2005 is not in derogation of any other existing law but in addition to the existing law. Therefore, unless the Act of 2005 itself provides for the curtailment of the benefits admissible under the Act after the expiry of certain period then simply on the basis of a provision alleging it to be Pari Materia, the benefits admissible to an aggrieved person under the Act of 2005 cannot be denied or curtailed.

16. For the reasons given herein above, the present criminal revision fails. The same is, accordingly, dismissed.

(Rajeev Misra, J.)

Order Date :- 12.09.2018

Sushil/-