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SCR.A/690/2005 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 690 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SHRIPATSINH
KESHRISINH RANAWAT - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
NV GANDHI for
Applicant(s) : 1,
MR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
RULE SERVED for Respondent(s) : 2,
MR
SHAKEEL A QURESHI for Respondent(s) : 2,
MR DEVENDRA K RATHOD for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 18/01/2010
ORAL
JUDGMENT
The
petitioner is before this Court being aggrieved by filing of
criminal proceedings under Section 125 of the Code of Criminal
Procedure being Criminal Misc.Application No.85 of 2002 in the Court
of learned JMFC, Rajpipla by respondent No.2 and also by judgment
and order passed therein, which was the subject matter of Criminal
Revision Application No.202 of 2004 before the learned Joint
District Judge & Additional Sessions Judge, Bharuch camp
Rajpipla, which was decided by judgment and order dated 7.4.2005.
The prayers made in the present petition read as under:-
A. Your
Lordships may be pleased to issue writ of certiorari or any other
appropriate writ in the nature of certiorari and be pleased to quash
and set aside the order dated 7th April, 2005 passed by
the Ld.Joint District & Additional Sessions Judge, Bharuch camp
at Rajpipla in Criminal Revision Application No.202 of 2004 and
further be pleased and set aside the order dated 18th
August 2004 passed by the Ld.J.M.F.C. at Rajpipla in Criminal
Misc.Application No.85 of 2002.
B. Your
Lordships may be pleased to issue writ of certiorari or any other
appropriate writ, order or direction and be pleased to quash and set
aside the proceedings of Misc.Criminal Application No.85 of 2002
pending before the Ld.J.M.F.C. at Rajpipla, Dist.Narmada.
C. Pending
hearing and final disposal of this petition, your lordships may be
pleased to stay the proceedings of Misc.Criminal Application No.85
of 2002 pending before the Ld.J.M.F.C., Rajpipla.
D. Pending
hearing and final disposal of this petition, your lordships may be
pleased to stay the orders at Annexure-A & B to this petition.
E. Any
other relief deemed just and proper may please be granted in the
interest of justice.
The
case of the petitioner as set-out in paragraphs 1 and 2 reads as
under, which is reproduced for the ready perusal:-
1. By
way of present petition, the petitioner challenges the legality and
validity of the order dated 7th April, 2005 passed by the
Ld.Joint District & Additional Sessions Judge, Bharuch camp
Rajpipla in Criminal Revision Application No.202 of 2004. Annexed
hereto collectively and marked as Annexure-A
are the copies of memo of Revision Application and order passed
therein. The Ld.Additional Sessions Judge by the impugned order
rejected the said application filed by the petitioner, wherein the
petitioner has challenged the validity and legality of the order
dated 18th
August, 2004 passed by Ld.J.M.F.C., Rajpipla in Criminal
Misc.Application No.85 of 2002 filed by the respondent No.2 U/s.125
of the Code of Criminal Procedure. Annexed hereto collectively and
marked as Annexure-B
are the copies of application for preliminary issue and order dated
18th
August, 2004 passed by the J.M.F.C., Rajpipla in Criminal
Misc.Application No.85 of 2002.
2. The
facts of the case are as under:-
A. The
marriage of the petitioner and the respondent No.2 was solemnized on
02.05.1955 according to hindu rites at Rajpipla. Due to wedlock
between the petitioner and respondent no.2, the respondent no.2 gave
birth to three children. Now all the children have become major and
they have settled in their life.
B. The
respondent no.2 wife Ushakumari had filed Civil Suit No.4745 of 1978
in the City Civil Court at Ahmedabad as a pauper seeking inter-alia
relief/s as under:
(a) allow
the plaintiffs applicants to file this suit as pauper and be pleased
to pass a decree directing to the defendant to pay Rs.1000.00 per
month as maintenance to the plaintiff no.1;
(b)
Rs.250.00 per month as maintenance to the plaintiff no.2;
(c) Directing
the defendant to pay Rs.98,000.00 as
maintenance from April, 1969 to May, 1977 for eight years and 2
months as the rate of Rs.1000.00 per month and Rs.250.00 as
maintenance of plaintiff no.2 at the rate of Rs.250.00 per month
with running interest at 12 percent;
C. The
petitioner submits that after hearing and recording evidence from
both the sides Ld.City Civil Judge, Court No.16, Ahmedabad vide his
judgment and order dated 20.08.1982 passed the following order.
The
suit is partly decreed with costs.
The
defendant husband, is hereby ordered to pay to the plaintiffs a
sum of Rs.1,10,376.00 ps. Towards the arrears which included past 3
years, arrears up to the date of the filing of the suit, as well as
from the date of the suit till the date of decree. The plaintiffs
are entitled to charge interest at the rate of 6% from the defendant
on the sum of Rs.72,625.00 from the date of the filing of the suit
till the passing of the decree.
The
defendant to pay to the plaintiffs a sum of Rs.1250.00 i.e.
Rs.1000.00 to the plaintiff no.1 wife and Rs.250.00 to the plaintiff
no.2 child till she marriages, towards, the maintenance on 5th
of every month from the date of the passing of the decree.
The
plaintiffs were permitted to file the present suit in forma pauper
is, and therefore, the court fees on the claim made by the
plaintiffs should be recovered, and the Registrar, should send to
the Government pleader, a memo of the court fees due and payable by
the plaintiffs.
D. Being
aggrieved by the said judgment and decree passed by the Ld.City
Civil Judge, Court No.16 at Ahmedabad in Civil Suit No.4745 of 1978,
the petitioner had filed First Appeal No.78 of 1983 before the
Hon’ble High Court of Gujarat at Ahmedabad. The petitioner had also
filed
Civil Application for stay of the impugned judgment and decree
passed by the Ld.City Civil Judge in favour of the respondent no.2
herein. The said appeal came up for hearing before the Division
Bench of Hon’ble High Court of Gujarat. Due to efforts put up by the
Hon’ble Court, relatives of the parties and advocates appearing in
the matter, the petitioner and respondent no.2 agreed to file
consent terms before the Hon’ble High Court of Gujarat. The
petitioner and the respondent no.2 on 21.02.1983 had signed the
consent terms before the Hon’ble High Court of Gujarat and requested
to the Hon’ble High Court to record the same and pass the decree and
terms of said consent terms. Annexed hereto and marked as Annexure-C
is
the copy of said consent terms filed before the Division Bench of
the Hon’ble High Court. As per the terms No.1 stated in the said
consent terms the decree of the trial court was confirmed, but if
the appellant paid a sum of Rs.1,50,000.00 to the respondents on or
before 31.08.1983 it shall be deemed to in full and final settlement
of their total claims in Civil Suit No.4745 of 1978. As per the term
stated at Clause No.III, the petitioner was required to deposit of
Rs.15,000.00 towards the total sum of Rs.1,50,000.00 within one week
and the petitioner was required pay remaining amount of
Rs.1,35,000.00 on or before 31.08.1983. The Division Bench
consisting (Coram: Hon’ble Mr.Justice P.D.Desai & Hon’ble
Mr.Justice R.C.Rathod, JJ.) vide their order dated 21.02.1983
recorded the consent terms and passed the order in accordance with
consent terms. The Hon’ble Court was pleased to substitute the
impugned decree passed by the Trial Court in terms of the said
order. Annexed hereto and marked as Annexure-D
is the copy of the order dated 21.02.1983 passed by this Hon’ble
Court.
E. As
stated and submitted earlier that the petitioner had paid an amount
against the arrears of the maintenance and amount against the future
maintenance to the respondent no.2 and settled the matter of
maintenance of the respondent no.2 amicably by obtaining the order
in terms of consent terms.
F. One
fine morning in the year 2002 after almost 20 years after settlement
of dispute of maintenance amicably before the Division Bench of the
Hon’ble High Court, the respondent no.2 Smt.Ushakumari filed an
application U/s.125 of the Code of Criminal Procedure being Criminal
Misc.Application No.85 of 2002 in the Court of Ld.J.M.F.C., Rajpipla
suppressing the facts of amicable settlement of the dispute of
maintenance prayed for maintenance of Rs.30,000.00 from the
petitioner. Annexed hereto and marked as Annexure-E
is a copy of the memo said Criminal Misc.Application No.85 of 2002.
G. Upon
service the process of the said Criminal Misc.Application, the
petitioner appeared with his advocate and raised preliminary
objection against the maintainability of the said Criminal
Misc.Application filed U/s.125 of the Code of Criminal Procedure
seeking maintenance at Rs.30,000.00 p.m. from the petitioner. The
Ld.J.M.F.C. without considering the earlier proceedings taken place
between parties before the Hon’ble Ahmedabad City Civil Court and
Hon’ble High Court of Gujarat rejected the application vide his
order dated 18th
August, 2004 mainly on the grounds that, (1) after consent decree
dated 21.02.1983 there is a change in the status of the parties and
the said consent decree was lesser than the present status and
income of the parties, (2) the Hon’ble Court has power to entertain
application U/s.125 of the Code of the Criminal Procedure filed by
the wife after consent decree as this is the first application
u/s.125 of the Cr.P.C.
H. Being
seriously aggrieved and dissatisfied by the impugned order dated
18th
August, 2004 passed by the Ld.J.M.F.C., Rajpipla in Criminal
Misc.Application No.85 of 2002, the petitioner had preferred
Criminal Revision Application No.202 of 2004 in the Court of
Sessions Judge at Bharuch on the grounds and submissions mentioned
in the memo of revision application. The Ld.Additional Sessions
Judge, Bharuch camp Rajpipla
vide his order dated 7th
April, 2005 rejected the said application on the ground that there
is no bar to file application u/s.125 of the Code of Criminal
Procedure after full and final settlement in the civil proceedings,
hence this Special Criminal Application.
It
is thereafter that respondent No.2 filed the aforesaid proceedings
u/s.125 of the Criminal Procedure Code.
Heard
learned advocate Mr.N.V.Gandhi for the petitioner and learned
advocate Mr.Shakeel Qureshi for respondent No.2. Learned A.P.P.,
Mr.Sejpal, assisted the Court appearing for respondent No.1.
From
the perusal of the facts of the case, it is not in dispute that the
civil suit filed by the respondent No.2 being Civil Suit No.4745 of
1978 which gave rise to First Appeal No.78 of 1983 was settled
between the parties and at relevant point of time, it was agreed
that a total amount of Rs.1,50,000.00 will be paid to respondents,
and out of the said amount, Rs.1,20,000.00 will be towards right of
the wife and Rs.30,000.00 will be payable to the minor girl. That
being so, to file proceedings under Section 125 of the Cr.P.C. is
uncalled for. The petitioner is aged about 71 years and respondent
No.2 is aged about 68 years. This Court (Coram: K.S.Jhaveri, J.)
passed order on 21.03.2007 as under;
1.
Heard. As a result of perusal of records, it is borne out that the
issue between the parties was settled by way of consent terms and by
way of decree in
First Appeal No. 78 of 1983 before this Court whereby the decree of
the trial court was confirmed but if the appellant paid a sum of Rs.
1,50,000/- to the respondents on or before 31.08.1983 the
said payment was to be considered full and final settlement of their
total claims in Civil Suit No. 4745 of 1976 in the City Civil Court,
Ahmedabad.
2.
However, the argument advanced by Mr Shakeel Qureshi, learned
advocate appearing for respondent no.2 is that in view of the changed
circumstances, an application by the respondent no.2 under
section 125 of the Criminal Procedure Code is maintainable.
3.
Prima facie, in view of the fact that the matter is settled between
the parties by way of consent terms in First Appeal decree, this
contention shall not sustain. However if the applicant is ready
to return the corresponding rupee value, as on today, of the amount
of Rs. 1,20,000/- paid to the respondent no.2 by the applicant in
1983, this Court is of the view that the application can
be considered on merits.
4.
In that view of the matter, with a view to enable Mr Qureshi to take
instructions matter is adjourned to 29.03.07.
Learned
advocate Mr.Qureshi for respondent No.2 has not spelt out as to what
will be the value of Rs.1,20,000.00 which was paid to respondent
No.2 in the year 1983 while settling the matter and as to whether
respondent No.2 is in a position, with willingness, to return that
amount to the petitioner herein, so that she is able to claim
maintenance under Section 125 of the Cr.P.C.
This
Court is of the opinion that the decisions which are relied upon by
respondent No.2, which are produced by the learned advocate for
respondent No.2 herein along with the reply dated 30.3.2009, has no
application to the facts of the present case. If such a stand is
allowed to be taken by any party, it will render all matters which
stood finalised on entering a compromise and that will give rise to
an atmosphere of uncertainty which will not be good for the people
and the Society. Generally when any matter is compromised, parties
do take that the matter has come to an end and it is finally
concluded. It is very easy to say that Section 125 of Cr.P.C.
operates in a different field, than the field which is covered by
civil matter. But in fact, what was compromised by settled by
respondent No.2 in civil matter was her right of maintenance. That
being so, once that matter is settled, the right of respondent No.2
to get maintenance u/s.125 of the Cr.P.C. does not survive because
interse relationship between the parties comes to an end. Respondent
No.2 cannot have best of both the worlds. She cannot after having
settled the matter in Civil Court as a full and final settlement of
her right of can file proceedings under Section 125 of Cr.P.C.
7.1 The
complexion of the matter would have been different, if respondent
No.2 had obtained an order of grant of maintenance in the civil
Court and the matter was not settled, as a ‘full and final
settlement’, then possibly it would have been possible for
respondent No.2 to invoke Section 125 of the Cr.P.C.. The Court
would have examined this question if the facts would have been so.
The Court is of the opinion that when the parties have settled their
interse rights in a Civil Court, one cannot have recourse under
Section 125 of the Cr.P.C.
Besides
the civil matter was settled in the year 1983 and it is only after
long nine years that the proceedings under Section 125 of the
Cr.P.C. is filed, in 2002. This itself speaks about the intention of
respondent No.2 which cannot be said to be bonafide by any
standards.
In
view of the aforesaid observations, this petition is allowed. The
judgment and order passed by the learned JMFC, Rajpipla in Criminal
Misc.Application No.85 of 2002 and confirmed by learned Joint
District & Sessions Judge, Bharuch camp Rajpipla in Criminal
Revision Application No.202 of 2004 are hereby quashed and
set-aside.
9.1 Taking
into consideration the aforesaid discussions and the position of
law, relief as prayed for in Clause-B is also granted and the
proceedings of Criminal Misc.Application No.85 of 2002 are quashed
and set-aside. Rule is made absolute with no order as to cost.
(Ravi
R.Tripathi, J.)
(binoy)
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