Nanak Chand vs. Chandra Kishore Agarwal (AIR
1970 SC 446) wherein the Hon'ble Apex Court has held
that
the word “child” in Section 488 of the Code of
Criminal Procedure, 1898 did not mean a minor son or
daughter and that the real limitation was contained in
the expression “unable to maintain itself”. Irrespective
of whether a son or daughter was a major or minor, a
father was bound to maintain the son or daughter if
such son or daughter was unable to maintain himself
or herself.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.676 OF 2013
Ankush s/o Sheshrao Wayal,
Vs
Sau. Ranjana w/o Ankush Wayal
Date of pronouncing the judgment : 13/10/2014
CORAM : P.N. DESHMUKH, J.
DATED : OCTOBER 13, 2014
Citation; 2015 ALLMR(cri)1560
The petitioner has challenged the order dated
6/8/2011 passed by the learned Principal Sessions
Judge,
Buldhana
in
Criminal
Revision
Application
No.39/2008 whereby by partly allowing the revision,
the revisional Court rejected the claim of respondent
no.1 and confirmed the order passed by the learned
trial Court granting maintenance of Rs.1500/- per
month to respondent no.2, who is a minor daughter of
appears
that
before
filing
petitioner, from the date of filing application. It
present
petition,
the
petitioner had filed an application under Section 482 of
Code of Criminal Procedure being Criminal Application
No.104/2012 challenging the order passed by the
revisional Court, which application was, however,
writ
petition
allowed to be withdrawn with leave to file appropriate
against
the
impugned
order
and
accordingly, the present petition came to be filed.
3)
To understand the controversy involved in this
petition, few facts are stated as follows :
The petitioner married to respondent no.1 in the
year 1996 and on 18/9/1997, respondent no.2 was
born out of their wedlock.
In 1999, respondent no.1
left the company of petitioner and started residing with
her parents.
Miscellaneous
On 11/8/2004, respondent no.1 filed
Criminal
Case
No.208/2004
for
maintenance under Section 125 of Code of Criminal
Procedure
Chikhli
before
claiming
respondent
Judicial
Magistrate,
maintenance
no.2,
which
was
for
First
Class,
herself
4
and
contested
by
the
petitioner by filing reply and simultaneously the
petitioner initiated proceedings under Section 13(1)(ia)
No.51/2005
Buldhana.
with
before
respondent
ig
marriage
Civil
Judge,
no.1
vide
Senior
H.M.P.
Division,
of
and (ib) of the Hindu Marriage Act, 1955 for dissolution
It is the case of the petitioner that in these
proceedings, the parties arrived at a compromise,
according to which it was agreed between the parties
that petitioner would pay lumpsum amount as full and
final maintenance amount for respondent nos.1 and 2
to the extent of Rs.1,50,000/- and that respondent no.2
shall not claim any other benefits arising out of
marriage between petitioner and respondent no.1.
was
also
agreed
that
respondent
no.1
It
shall
withdraw Miscellaneous Criminal Case No.208/2004
unconditionally. The terms of compromise were duly
signed by the petitioner and respondent no.1.
According to petitioner, in view of above
4)
5
compromise terms, he has paid Rs.1,50,000/- in cash
before the Court of Civil Judge, Senior Division,
Buldhana on 12/7/2005 for which respondent no.1 has
issued acknowledgment before the said Court and as
such, according to petitioner, in view of terms of
compromise, respondent no.1 has specifically agreed
claim any maintenance
that in future, she will not
amount. On the basis of the terms of compromise as
the
learned
above,
Buldhana
passed
Civil
Judge,
consent
Senior
decree
in
Division,
H.M.P.
No.51/2005. However, to the surprise of the petitioner,
even after passing consent decree as aforesaid,
respondent
no.1
did
not
withdraw
Miscellaneous
Criminal Case No. 208/2004 from the Court of Judicial
Magistrate, First Class, Chikhli, which was fixed for
hearing on 16/7/2005 and petitioner had also placed
on record before the said Court consent decree passed
in H.M.P. No.51/2005.
However, the learned trial
Court without considering the same, ordered petitioner
to pay amount of Rs.1500/- per month each to both the
respondents from the date of application. It is the case
of the petitioner that the order of the learned trial
Court is thus contrary to the terms of the consent
decree and thus, he assailed the same by filing
being
Criminal
Revision
revision
Application
No.39/2008 before the Sessions Judge, Buldhana,
which revision by the impugned order dated 6/8/2011
came to be partly allowed, thereby quashing the order
by
the
learned
trial
Court
granting
passed
maintenance to respondent no.1 and recording a
finding that the respondent no.2 alone is entitled for
maintenance.
The petitioner has assailed the said
order vide present petition.
5)
The respondent no.2 has resisted the petition
by filing reply contending that petition is without any
substance since respondent no.2 is minor daughter of
petitioner and hence, being father, the petitioner is
duty-bound to make payment of maintenance of
Rest of the facts about
Rs.1500/- per month to her.
wp676.13
marriage between petitioner and respondent no.1 and
birth of respondent no.2 out of the said wedlock are
not disputed.
The respondent no.2 has also admitted
fact of filing Miscellaneous Criminal Case No.208/2004
petitioner
filing
No.51/2005
for
grant
Hindu
of
Marriage
divorce
and
Petition
about
ig
knowledge
for maintenance, however, has denied for want of
compromise, if any, arrived at between petitioner and
respondent no.1. The respondent no.2 has specifically
denied that she is not entitled for any benefit or
maintenance from petitioner. She has also denied for
want of knowledge that in terms of compromise,
amount
of
Rs.1,50,000/-
was
deposited
by
the
petitioner. According to respondent no.2, at no point
of time, she had given consent to withdraw the case
filed for grant of maintenance and has thus, contended
that the trial Court rightly awarded maintenance to her
at the rate of Rs.1500/- per month from the date of
application.
According to respondent no.2, she was born to
6)
wp676.13
respondent no.1 in her maternal grandfather's house
and since then, continued to reside there till July 2009
when petitioner took her with him on the false pretext
to provide education, etc.
However, since petitioner
failed to provide even basic needs and ill-treated her,
she left his house while she was in Standard VII and
alone came to the house of her maternal grandfather
at Chikhli in September 2009 on her own will.
7)
According to respondent no.2, her mother has
performed second marriage in June 2009
and she is
also neglecting to maintain her and that petitioner has
also performed second marriage and is having issues
from the said wedlock.
It is the case of respondent
no.2 that she is without any financial assistance and is
residing with her maternal grandfather, who is an aged
person. It is the specific case of respondent no.2 that
she
is
not
given
any
share
in
the
amount
of
Rs.1,50,000/- as claimed to be paid by the petitioner to
respondent no.1 in H.M.P. No.51/2005 in terms of
settlement. It is thus the case of respondent no.2 that
since she is prosecuting her education and as her
grandfather is not in a position to provide her any
financial assistance, the petition may be dismissed as
even otherwise, the petitioner has failed to pay
ig
maintenance amount to her in spite of orders passed
by the learned Courts below.
Having considered the facts involved in the
8)
petition and controversy involved, short point, which
needs consideration, is whether in view of terms of
settlement
arrived
at
between
petitioner
and
respondent no.1 in H.M.P. No.51/2005 filed by the
petitioner for divorce, same terms of compromise are
binding
upon
respondent
no.2
particularly
with
reference to her case under Section 125 of Code of
Criminal Procedure, which was admittedly filed by
respondent no.1 for herself and respondent no.2
before learned Judicial Magistrate, First Class, Chikhli.
In view of above, when scheme of Section 125
9)
10
of Code of Criminal Procedure is considered, it saddles
a person with duty to maintain his legitimate or
illegitimate minor child subject to conditions laid down
therein. The provision vests corresponding right in the
child to claim maintenance from his father in the event
the child is unable to maintain itself. The obligation of
father to maintain his child does not at any point of
time shift to any other person including mother having
custody of the child. In other words, even if the child is
temporarily living with mother or in custody of any
other person,
the father
continues
to be under
statutory duty to maintain the child. As such, the right
with which the child is vested under Section 125
cannot
be
bartered
away,
surrendered, even by his mother.
compromised
or
The language of
Section 125(1)(b) makes abundantly clear that the law
makers under this Section has cast duty upon father
to maintain the child.
Having this in mind, reference
to “legitimate or illegitimate child” has been made in
10)
Section 125(b) and (c) of Code of Criminal Procedure.
The case of petitioner based on compromise
arrived at between him and respondent no.1 in H.M.P.
No.51/2005 can in no way hamper the right of
no.2 to claim maintenance from the
respondent
vagrancy
Procedure
of
is
Criminal
petitioner. As the spirit of Section 125 of the Code of
divorced
to
prevent
wife,
any
starvation
compromise
and
or
agreement by any of the parties to the marriage would
in fact be against the spirit of law and would also be
opposed to the public policy as it would be against the
social order.
It is a basic principle of law that an
agreement which is opposed to public policy cannot be
enforced in a Court of law.
Section 23 of the Indian
Contract Act, 1872 renders such an agreement void if
its consideration or object is unlawful. If the object or
consideration of an agreement would defeat the
provisions of any law and if it is opposed to public
policy, the agreement would be treated as unlawful
and consequently void.
Therefore, a clause in an
agreement that the wife shall not be entitled to claim
maintenance from the husband cannot be used as a
defence to proceedings under Section 125 of the Code
of Criminal Procedure. The relinquishment of the right
to maintenance by the wife will not bar proceedings
11)
under Section 125 of the Code of Criminal Procedure.
Section 23 of Indian Contract Act, 1872 is
reproduced below :
“Section 23 – What considerations and objects
are lawful and what not - The consideration or
object of an agreement is lawful, unless -
it is forbidden by law; or
is of such a nature that, if permitted, it would
defeat the provisions of any law; or
is fraudulent; or
involves or implies injury to the person or
property of another; or
the Court regards it as immoral, or opposed to
public policy.
In each of these cases, the consideration or
object of an agreement is said to be unlawful.
Every agreement of which the object or
12)
In
view
of
above
entered
into
respondent no.1 cannot
respondent no.2 being
stated
provisions,
be
acted
and
upon
and
against
void
and,
ig
unlawful
the
petitioner
between
agreement
consideration is unlawful is void.”
therefore, clause in the agreement that respondent
respondent
no.2 shall not be entitled or even, in that case,
no.1
shall
not
be
entitled
to
claim
maintenance from the petitioner husband cannot be
used as a defence to proceedings under Section 125 of
Code of Criminal Procedure as relinquishment of right
of maintenance as above will not bar proceedings for
maintenance.
Moreover,
by
entering
into
such
agreement, petitioner cannot absolve his liability or
obligation maintenance
to
pay
allowance
to
respondent no.2, who though admittedly is in the
custody of her maternal grandfather, has come out
with a specific case that now for the purpose of her
better education, she needs monetary assistance and
provide the same.
her grandfather being an aged person is unable to
For this reason also, the recitals in
the agreement relied upon by the petitioner cannot be
In the background of above circumstances, I
13)
for grant of maintenance.
made available to him as a defence to the proceedings
find it useful to refer to the decision in the case of
Nanak Chand vs. Chandra Kishore Agarwal (AIR
1970 SC 446) wherein the Hon'ble Apex Court has held
that
the word “child” in Section 488 of the Code of
Criminal Procedure, 1898 did not mean a minor son or
daughter and that the real limitation was contained in
the expression “unable to maintain itself”. Irrespective
of whether a son or daughter was a major or minor, a
father was bound to maintain the son or daughter if
such son or daughter was unable to maintain himself
or herself.
Having considered the above facts, I find no
substance in the criminal writ petition since it is based
on the fact of respondent no.1 being mother of
respondent no.2, relinquishing the right of respondent
no.2 to claim maintenance from her father as mother
cannot be competent to relinquish such right.
I am,
therefore, of the opinion that the agreement reached
between petitioner and respondent no.1 before the
learned Civil Judge, Senior Division, Buldhana would
not operate as a bar to maintainability of maintenance
case of respondent no.2.
15)
In
the
result,
criminal
writ
petition
is
dismissed. Rule is discharged. No order as to costs.
The request made by the learned Counsel for
the petitioner to stay this judgment for a period of
eight weeks is rejected.
JUDGE
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