Sanjay vs Smt. Pratibha
2023 Latest Caselaw 10168 MP

                                                1
 IN     THE           HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR
                             BEFORE
              HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                ON THE 5 th OF JULY, 2023
                      CRIMINAL REVISION No. 386 of 2021

BETWEEN:-
SANJAY S/O LATE SHRI BHRAGUNATH SHRIVASTAVA,
AGED ABOUT 57 YEARS, OCCUPATION: SERVICE R/O
SRIRAM    COLONY    AHEAD   WAREHOUSE    P.S.
GOPALGANJ DISTRICT SAGAR (MADHYA PRADESH)

                                                                                           .....APPLICANT
(BY SHRI SMT. AMRIT KAUR RUPRAH - ADVOCATE)

AND
SMT. PRATIBHA W/O SANJAY SHRIVASTAVA, AGED
ABOUT 50 YEARS, R/O WARD NO. 6 REHLI TEH. REHLI
DISTRICT SAGAR (MADHYA PRADESH)

                                                                                        .....RESPONDENT
(BY SHRI PRIYANK CHOUBEY - ADVOCATE)

      Reserved on                   : 12.06.2023
      Pronounced on                : 05.07.2023
      .................................................................................................

      This revision coming on for hearing this day, the Court passed the
following:
                                                 ORDER

This revision petition has been preferred to seek interference in the order passed under Section 125 of Cr.P.C. by First Additional Sessions Judge, Rehli, District Sagar on 22.01.2021 in Criminal Revision No.1/2020. By this order, the learned revisional Court has set-aside the order of JMFC, Rehli, District Sagar passed on 12.12.2019 in RCT No.69/2005. The JMFC Court had dismissed

the application filed by respondent under Section 125 of Cr.P.C. but under the impugned order, she is allowed maintenance @ Rs.10,000/- per month from the date of filing of revision petition.

2. The parties before this Court have seen long series of litigation which started in the year 2003. On 24.09.2003, both the parties filed a joint application under Section 13(b) of Hindu Marriage Act seeking divorce with mutual consent but that application was rejected on technical reason. They again moved similar kind of application which again saw the same fate. Third time on 04.09.2004, parties filed the application of divorce with mutual consent under which statements of both the parties were recorded on 06.04.2005 and decree of

divorce based on mutual consent was passed in their favour. On 18.07.2005, a criminal complaint was filed by the respondent/wife under Section 498-A, 420, 323, 294 and 506B of IPC in which police report was called and JMFC, Rehli ordered the registration of criminal case vide order dated 09.12.2005. This order was challenged before the High Court in M.Cr.C.No.8855/2006 by the present applicant and an order was passed on 25.03.2019 in his favour of quashing the complaint.

3. In between these proceedings, an application under Section 125 of Cr.P.C. was filed by respondent/wife seeking maintenance. This case was registered as M.J.C. No.60/2005 and was decided on 20.01.2007 by dismissing the petition. Record shows that the case was decided thrice in dismissal as on every dismissal it was being remanded by the revisional Court. The last remand order passed in Criminal Revision No.137/2012 on 25.07.2012 was challenged before the High Court in Criminal Revision No. 1584/2012 which was disposed of with the direction that the applicant would be at liberty to file review petition before the Family Court for modification/ correction/amendment of divorce

decree and once applicant would get an order from the Family Court, the trial Court shall proceed with the M.J.C. No.60/2005 and shall decide it on merits.

4. Under these directions of the High Court, the applicant filed a review petition seeking changes in the divorce decree and that petition was decided as M.J.C. No.02/2014 on 12.12.2014 by Presiding Judge of Family Court, Sagar allowing that review petition and amending the divorce decree with the observation that respondent had obtained Rs.50,000/- from the applicant as one time alimony. In the light of this modification, the application under Section 125 of Cr.P.C. filed by the respondent on 18.07.2005 was reconsidered by J.M.F.C. Court, Rehli in M.J.C. No.69/2005 and by the order dated 12.12.2019, it was dismissed. Against this order, a revision petition was filed by the respondent which was allowed by the impugned order.

5. In the backdrop of this litigation, the applicant/husband has challenged the impugned order on the ground that the revisional Court failed to acknowledge the facts mentioned in the joint application filed on third occasion by the parties for seeking divorce with mutual consent. It failed to appreciate that a lump-sum amount towards permanent alimony was already paid by the applicant-husband, therefore, no claim for maintenance survived. The finding of Family Court, Sagar regarding divorce decree has been totally ignored by the learned Judge while passing the impugned order. It is, therefore, prayed that the

revision be allowed and the impugned order be set-aside.

6. The respondent-wife has vehemently opposed the revision petition claiming that it does not deserve any interference as the impugned order is in conformity with the facts proved and the legal provisions applicable.

7. The facts narrated above tell that the parties have been engaged in a

long litigation which has completed almost 20 years and yet their disputes are persisting. After getting a divorce decree with mutual consent respondent/wife started criminal proceedings against the applicant/husband seeking his conviction and praying for punishment under various offences of IPC. That dispute was settled finally on 25.03.2019 by quashment of complaint itself. Prior to this, in the year 2005 itself, the respondent/wife moved an application under Section 125 of Cr.P.C. for seeking maintenance, that case has seen decision by JMFC Court, Rehli four times, order of Additional Sessions Judge in revision petition again four times and has come up before this High Court twice. It needs to be mentioned here that on all the four occasions, the application under Section 125 of Cr.P.C. was dismissed by the JMFC Court, Rehli, District Sagar, it was remanded back to JMFC Court on three occasions and it is allowed by the revisional Court only once and that is the under impugned order.

8 . O n perusal of the impugned order, it is revealed that the learned Judge was impressed by the fact that payment of Rs.50,000/- in the year 2005 could not have settled the lifelong needs of the respondent about maintenance. In paragraphs-24 and 25 of the impugned order, it is discussed that the amount of Rs.50,000/- paid in the year 2005 comes to a maintenance amount of Rs.300/- per month for the period foregone. It appears that the learned Judge failed to appreciate the principles of economics regarding inflation and devaluation of money. The value of Rs.50,000/- in the year 2005 cannot be appreciated in the scales of current value of money. The question of legality of contract arrived at between the parties regarding payment of Rs.50,000/- as lifelong maintenance also seems to have weighed heavily in passing the impugned order.

9. It was observed by learned Court below that Section 125 of Cr.P.C. is a piece of Social Welfare Legislation to protect the wife from vagrancy and destitution and any contract in restriction of that right is not enforceable for being against the public policy. For this, learned Judge has relied upon several judgments of various High Courts and also of Hon'ble Supreme Court. The whole discussion entered upon in the impugned order, does not refer even once to the finding given by Family Court in MJC No.02/2014 decided on 12.12.2014, wherein the learned Principal Judge of Family Court allowed the application moved under Order 47 Rule 1 r/w Sections 151 and 152 of C.P.C. and amended the divorce decree passed in Civil Suit No.43-A/2004 dated 06.04.2005.

10. In the light of this amendment, the divorce decree between the parties now reads as under:-

"T h e marriage solemnized between the parties on 20.02.2003 is declared to be dissolved. Applicant No.2 (respondent herein) Smt. Pratibha Shrivastava has received Rs.50,000/- from Applicant No.1 (applicant herein), Sanjay Shrivastava against the onetime payment of her maintenance amount."

11. This finding of Family Court was based upon the evidence of both the parties and also the facts mentioned in their joint application filed for seeking divorce. Learned Family Court had also arrived at the finding that there was no undue duress, pressure or threat involved in arriving at this agreement and accordingly, the respondent had surrendered her right to further maintenance on her free will and volition. The finding of Family Court leaves no doubt that the agreement, under which the respondent surrendered her further right of

maintenance, was not affected by any coercion or threat. This finding based on appreciation of facts and evidence, was not at all considered in the impugned order discussing various citations. The impugned order emphasizes that under the public policy, the right to maintenance cannot be curtailed, but the learned Court below failed to appreciate that the said right was not at all curtailed in the present case and the respondent/wife had very evidently exercised that right at the time of making decision of divorce. Since there is no finding that the option of surrendering her maintenance by the respondent was affected by any undue influence, the learned Court below had no grounds to substitute his feelings or emotions against the finding which was already delivered by the Family Court on the merits of the case.

12. On the basis of foregoing discussion, this Court comes to the conclusion that the dispute about future maintenance was already settled by the decision of Family Court given in the year 2014 and the respondent/wife did not opt to challenge that finding before the higher Court, hence, there was no reason

to revive her right of future maintenance, which had already attained finality. The respondent/wife has relied upon the decision in the case of Molyabai Vs. Vishram Singh reported in 1991 SCC OnLine MP 303, S m t. Manoka Chatterjee v. Sri Swapan Chatterjee and another (2002) 2 CALLT 336 HC, Sadasivan Pillai v. Vijayalakshmi 1987 Cr.L.J. 765 a n d Rohtash Singh v. Ramendri (Smt.) and others (2000) 3 SCC 180. T he first three citations are of different High Courts while the last one is of Hon'ble the Supreme Court. In the last citation, Hon'ble the Supreme Court has held that even if the divorce decree becomes final, the husband remains under a statutory duty to provide maintenance allowance to his former wife and she is entitled to maintenance unless she suffers from any of the disabilities as indicated in

section 125(4) of Cr.P.C. So far as the decisions of other High Courts are concerned, there have been conflicting views on this point for e.g. in the judgment o f Jatinder Kumar Gabha v. Usha Gabha 1998 SCC Online P&H 1158 it has been held that if the wife has accepted in lump-sum the amount of alimony only her right to future maintenance is put to an end while the minor children continue to have the right of maintenance against their father.

13. The decision in Molyabai (supra) is of M.P. High Court but the facts of that case are entirely different. In that case, payment of lump-sum future maintenance allowance was challenged and was not found proved. Therefore, the divorced wife was held to be entitled to maintenance.

14. It may be convenient to mention here the provision of section 127(3)(c) of Cr.P.C. which reads as under:

127 Alteration in allowance.- (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that

-

(a)........................

(b) ......................

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be, after her divorce, cancel the order from the date thereof.

15. Hon'ble the Supreme Court while deciding Criminal Appeal No.730/2020 in the recent case of Rajnish v. Neha has held that "while it is proved that a party is not precluded from approaching the Court under one or more enactments since the nature and purpose of relief under each Act is

distinguishable and independent, it is equally proved that simultaneous operation of these Acts, would reach to multiplicity of proceedings and conflicting orders. This would have the inevitable effect of over-laping jurisdiction. This process requires to be streamlined so that the respondent/husband is not obligated to comply with the successive orders of maintenance passed under different enactments.

16. In the light of this settled legal position, this Court is of the view that there was a finding of Family Court regarding payment of one time lump-sum amount towards the maintenance of wife and it is further proved that she voluntarily relinquished her right to future maintenance, therefore, the applicant/husband should not have been saddled with new liability of paying the monthly maintenance amount to the respondent-wife. Based on this appreciation of facts and law, the impugned order awarding maintenance to the wife is hereby set aside.

17. The revision petition is accordingly allowed.

(ANURADHA SHUKLA) JUDGE ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.07.06 11:21:58 +05'30' Adobe Reader version: 11.0.23