Shamsi Azmi & Ors. vs State & Anr.
2018 Latest Caselaw 4976 Del

$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 23.08.2018

+       CRL.M.C. 2585/2005
SHAMSI AZMI & ORS.                                    ..... Petitioners

                          versus

STATE & ANR.                                          ..... Respondents
Advocates who appeared in this case:
For the Petitioner(s) :   Mr. Mr.Satish Tamta, Sr.Adv. with Mr.Dhruv
                          Tamta and Ms.Nisha Narayana, Adv. for petitioner
                          Nos.1 to 3/non-applicant.
                          Mohd.Nizam Pasha, Adv. for the applicant.

For the Respondent(s):    Mr.Kamal Kr.Ghai, Addl. PP for the State.
                          Ms.Nooreen Sarna, Adv. for R-2.

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                             JUDGMENT

23.08.2018

SANJEEV SACHDEVA, J. (ORAL)

Crl.M.A.19659/2017

1. The applicant in Crl.M.A.19659/2017 seek modification of order dated 31.05.2005. By the said order, the present petition was disposed of on a compromise between the petitioner No.1/husband and respondent No.2/wife.

2. The petitioner No.1 as well as respondent No.2 had entered into a settlement whereby it was agreed that a sum of Rs.12 lakhs shall be paid to her in full and final settlement of all her claims as well as the claims of the child of the parties (i.e. the applicant herein). Apart from the said amount of Rs.12 lakhs it was also agreed in the settlement that the petitioner No.1 shall pay a sum of Rs.8,000/- per month towards maintenance of the applicant till she attained the age of 21 years or she got married whichever was earlier.

3. The present application has been filed by the daughter claiming reimbursement of educational expenses incurred on her education as well as maintenance. It is contended that the applicant has an independent right of maintenance and reimbursement of education expenses and any agreement entered into by the mother crystallizing her claim and/or giving up right to her claim amount over and above the agreed amount was not legal and the applicant is entitled to claim maintenance independent of the said compromise.

4. Learned senior counsel appearing for the petitioner No.1 opposes the application and he submits that the applicant is bound by the settlement. He submits that the settlement specifically stipulated that the petitioner shall pay the said amount of Rs.8000/- per month till the applicant attained the age of 21 years or got married whichever was earlier and this settlement was duly acted upon. He further submits that the application is highly belated having been filed after

the applicant turned 18 years.

5. I am of the view that the present application would not be maintainable before this Court. In case the applicant has any independent claim to maintenance or reimbursement, the applicant would have to approach the Court of the Metropolitan Magistrate under appropriate provisions of the Code of Civil Procedure for establishing her right. It is also noticed that the agreement between the petitioner no. 1 and respondent no. 2 did contain a stipulation contemplating a repudiation of the settlement by the applicant on attaining the age of majority and also provides for consequences thereof.

6. In view of the above, the application is disposed of with liberty to the applicant to avail of her remedies under the Code of Criminal Procedure in accordance with law before an appropriate forum.

7. It is clarified that this Court has neither considered nor expressed any opinion on the merits of the claim of the applicant. On such proceedings being initiated, the concerned Court would be empowered to consider the same in accordance with law. The objection raised by the petitioner No.1 with regard to maintainability, limitation and the quantum is left open.

8. It is further clarified that the order dated 31.05.2005 and the settlement agreement between the petitioner No.1 and respondent

No.2 shall not come in the way of the Trial Court in considering the application in accordance with law, however the effect, if any, of the agreement made by the mother on behalf of the applicant shall be taken into consideration.

9. It is further clarified that the period spent by the applicant in pursuing the remedy before this Court, by way of this application, shall be excluded while computing the limitation by the Trial Court on an application being filed by the applicant. This direction is being issued in view of the fact that order dated 31.05.2005 has deemed the settlement between the parties to be an order under Section 125 Cr.P.C and that is stated to be the reason as to why the applicant approached this Court.

10. The application is disposed of in the above terms.

11. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J August 23, 2018 rk