RAJESH KOCHAR Vs. REETA KUMARI

JUDGEMENT

(1.) This revision is directed against the order dated 19-5-2001 passed in Misc. Case No. 16/97/426A/2001 under S. 125, Cr. P.C.

(2.) By the aforesaid order, the Judicial Magistrate, 1st Class, granted maintenance allowance of Rs. 500.00 to the opposite party, Reeta Kumari, of this revision. The husband of Reeta Kumari is the revisionist before this Court. The concise facts which are relevant of this revision are that earlier there was a matrimonial suit between the parties (Suit No. 220/96) before the Family Court, Lucknow, which, by its order dated 28-3-87 dissolved the marriage of the parties under S.13-B of the Hindu Marriage Act (Annexure-1). At page 16, copy of the joint petition filed by the parties before the aforesaid Family Court has been tagged, which shows that the opposite party Reeta Kumari had agreed that she will not claim any maintenance allowance from her divorced husband. On the basis of this agreement it was submitted by the revisionist's lawyer, that Reeta Kumari was no longer entitled to claim any maintenance from him. Moreover, the judgment of the Family Court was the judgment of the Civil Court and, therefore, it must prevail upon the Magistrate in seisin of the case at Gaya. It was further submitted that under Ss. 7 and 8 of the Family Courts Act, the case under S. 125, Cr. P.C. was barred. In support of his contention, the revisionist's lawyer referred to the decisions as reported in 1981 Cri LJ 151 (Punj and Har), 1984 Cri LJ 211 (sic), 1978 Cri LJ 469 (Madras), 1992 Cri LJ 1315 (Andh Pra) and 1987 Cri LJ 765 (Ker).

(3.) However, I find that the decision reported in Cri LJ 1984 is not applicable to the facts of this case. The cases reported in Cri LJ 1978, 1992 and 1987 all are against the contention of the revisionist. In all these cases, it has been held that a case under S.125, Cr. P.C. is not barred under S. 8 of the Family Courts Act. In the instant case, there was no Family Court at Gaya and, therefore, petition for maintenance under S. 125, Cr. P.C. was very well maintainable before the Magistrate. Now, the question is whether in spite of the agreement arrived at between the parties, in the matrimonial Court at Lucknow, the case under S. 125, Cr. P.C. was maintainable. In this connection, all the decisions referred to above have laid down that if an agreement entered into between the parties is against the public policy or is against statutory law, that agreement is void under S. 23 of the Contract Act. So, if Reeta Kumari agreed not to claim any maintenance allowance and on account of this agreement, the Matrimonial Court of Lucknow granted the divorce under Section13-B of the Hindu Marriage Act and in its decree the agreement was incorporated, I do not think that this agreement would be binding upon Reeta Kumari not to claim any maintenance allowance in future. This is because the agreement of Reeta Kumari was against the spirit of statutory provision under S. 125, Cr.P.C. and it was also against the public policy. The spirit of S. 125, Cr.P.C. is to prevent destitution or vagrancy of divorced wife. So, any promise or agreement by any of the parties to the marriage would be against this spirit of law and it would also be opposed to the public policy, because it would be against the social order and, accordingly, opposed to public policy. I am, therefore, of the opinion that the agreement reached in the Family Court at Lucknow would not operate as bar to the maintainability of the maintenance case at Gaya preferred by Reeta Kumari. Divorce was obtained in the year 1987 and the maintenance case before the Court at Gaya was filed in the year 1997, nearabout 10 years after the divorce. It was the case of Reeta Kumari that after divorce, she was being maintained by her father. Now she felt the necessity to crave maintenance from her divorced husband because her father was no longer able to maintain her and also because she was unable to maintain herself. The Court on the basis of evidence held that Reeta Kumari was unable to maintain herself and, therefore, she was entitled to take maintenance allowance from the revisionist.