JUDGMENT
S.T. Kharche, J.
1. Rule. Rule made returnable forth with and heard by consent of both the parties.
2. This criminal revision is directed against the order dated 18th April, 2002, passed by the learned Judge of the Family Court No. 2, Nagpur, below Exhibit-12, in Petition No. EP-266/2001, whereby it was directed to issue warrant of attachment of salary of the applicant @ Rs. 2,000/- per month towards amount, and Rs. 2,000/- towards arrears of maintenance amount, amounting total Rs. 4,000/- per month till recovery of Rs. 16,000/- and thereafter Rs. 2,000/- per month.
3. The learned Counsel for the applicant contended that the non-applicant Nos. 1 and 2 had filed petition claiming maintenance under Section 125 of the Code of Criminal Procedure, which was dismissed for default on 27.1.2002. He contended that restoration application has been filed by the non-applicants bearing No. 18/2002, which is pending in the Family Court.
4. The learned Counsel for the applicant/husband further contended that while the application for grant of maintenance was still pending for final disposal before the Family Court, the non-applicant No. 1 had filed an application under Section 125(3) read with Section 128 of the Code of Criminal Procedure for recovery of the amount of maintenance. He contended that the applicant resisted the claim by filing reply and contended that the order passed by the Counsellor is obtained by fraud and misrepresentation and the said compromise was not recorded by the Court, as is required as per the provisions of Rule 31 of the Maharashtra Family Courts Rules, 1987. He contended that in such circumstances the Compromise Deed dated 21.10.2000 cannot be enforced in law and the impugned order passed by the Family Court on 18.4.2002 is liable to be set aside.
5. The learned Counsel for the respondent/wife further contended that the Compromise Deed was reduced into writing in presence of the Counsellor of the Family Court and it was signed by the parties on 21st October, 2000, and by virtue of the terms and conditions of the Compromise Deed, the applicant-husband is liable to pay the maintenance @ Rs. 2,000/- per month. The learned Counsel for the non-applicants contended that as per the terms and conditions of Compromise Deed, they have to recover the arrears of maintenance as well as maintenance allowance per month and the impugned order passed by the learned judge of the Family Court is just, legal and sustainable in law.
6. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for both the parties. In order to appreciate the contentions, it may be useful to refer Rule 31 of the Maharashtra Family Courts Rules, 1987, which reads thus :
“31. When the parties arrive at a settlement before the Counsellor relating to the dispute or any part thereof such settlement shall be reduced to writing and shall be signed by the parties and counter-signed by the Counsellor, the Court shall pronounce a decree or order in terms thereof unless the Court considers the terms of the settlement unconscionable or unlawful or contrary to public policy.”
7. In order to make the compromise decree enforceable in law, it is necessary that the parties must arrive at some settlement before the Counsellor relating to the dispute or any part thereof. Secondly, such settlement is required to be reduced into writing and it should be signed by the parties and counter-signed by the Counsellor. Thirdly, the Court is required to pronounce a decree or order in terms thereof unless the Court considers the terms of settlement unconscionable or unlawful or contrary to public policy. In the present case, it appears that the parties had arrived at some settlement before the Counsellor relating to dispute regarding payment of maintenance and the said settlement was also reduced into writing and was also counter-signed by the parties and counter-signed by the Counsellor on 21st October, 2000. It is not disputed that this Compromise Deed which was reduced into writing was presented before the Family Court. But, the learned Judge of the Family Court did not explain the terms and conditions of the compromise to the parties, nor she has pronounced any decree or order in terms of the Compromise Deed, nor has passed any order thereon to show whether the terms and conditions were considered, and whether the terms of the settlement were lawful or unconscionable or unlawful or contrary to the public policy. Since the learned Judge of the Family Court did not pronounce any decree or order in terms of the Compromise Deed, it is not possible to accept that the said terms and conditions mentioned in the Compromise Deed could be enforced as per the provisions of Section 125(3) of the Code of Criminal Procedure. In view of the foregoing reasons, I am of the considered view that the impugned order dated 18.4.2002, passed by the learned Judge of the Family Court is unsustainable in law and is liable to be set aside.
8. In the result, this Criminal Revision is allowed, the impugned order, dated 18.4.2002, passed by the learned Judge of the Family Court, below Exhibit-12, directing attachment of the salary of the applicant on account of non-payment of arrears of maintenance by virtue of Compromise Deed is quashed and set aside. The Criminal Revision is disposed of Rule is made absolute in the aforesaid terms.