MAMTA RANI Vs. SATISH KUMAR GOGIA

JUDGEMENT

(1.) THE petitioner is the wife of the respondent. Vide order dated 18th October, 1993, two applications for interim maintenance under Section 125 Cr. P. C. of the Code of Criminal Procedure one filed by the wife and the other filed by the minor daughter were dismissed by the Chief Judicial Magistrate, Ambala. The Court held that the wife and the minor child have voluntarily left the custody of the respondent as was apparent from the agreement deed, which had been put on record and as such there was no neglect or refusal on the part of the respondent to maintain them. Aggrieved by these orders the present petition and Criminal Revision No. 798 of 1993 have been filed.

(2.) MR . Malkeet Singh, learned Counsel for the petitioners has argued on the basis of certain authorities which have been cited by him that the statutory right given to the wife and the minor child to recover the maintenance under Section 125 Cr. P. C. could not be taken away by the agreement in question. He has further urged that where the marriage had been admitted and it had been found that the wife and the minor child were not in a position to maintain themselves, interim maintenance was to follow as a matter of course. This position has been controverted by the learned Counsel for the respondent and he has brought to my attention the provisions of Section 125 (4) of the Code of Criminal Procedure which provide that maintenance under Section 125 of the Act was not to be given in case it had been proved or admitted, that the parties were living separately by mutual consent. He has in this connection drawn my attention to the agreement deed in question in which it had been agreed that the marriage between the parties stood dissolved and the parties could go their own way. It has been urged that as they had parted company by mutual consent, no maintenance was in fact payable.

(3.) HOWEVER , I am of the view that the agreement in question would not bind the minor child Neha and keeping in view the facts and circumstances, I direct that she be paid interim maintenance at the rate of Rs. 500/- per month from the date of the application. Mr. A. S. Virk has pointed out that the application for interim maintenance had been filed in the year 1992 and that the respondent being a person of limited means was not in a position to pay all the arrears in lump sum. This request of the learned Counsel is justified and it is accordingly directed that arrears upto August, 1994 would be paid in six instalments to be determined by the Trial Court whereas the maintenance for the month of September, 1994 will be paid by 10th September, 1994, and all subsequent payments shall be paid to petitioner No. 2 i. e. the mother of the petitioner by 10th of every month by money order addressed to her name. Criminal Revision 798 of 1993 is allowed in the above terms.