maintenance as the earlier two maintenance applications were not decided on
its merit. Any compromise for not suing the matter for maintenance is against
the law and the same cannot be acted upon.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 333 of 2016
Umashankar Bisai
V
Smt. Savita Bisai
Hon'ble Shri Justice Chandra Bhushan Bajpai
Dated:16/03/2016
Citation: 2016 CRLJ(NOC)232 chh
1. Heard the instant Cr.M.P. on admission.
2. Facts in brief required for disposal of the instant Cr.M.P. are that the
petitioner and respondent No.1 are husband and wife. Respondents 2 and 3
are minor and born out of the wedlock between the petitioner and respondent
No.1. Respondents 1 and 2 had filed an application for maintenance under
Section 125 of the Code of Criminal Procedure, 1973 (in short 'the Code')
before the C.J.M., Jagdalpur, C.G., the same was registered as Criminal
M.J.C. No.116/2002. During hearing of the said Criminal M.J.C., both the
parties had filed a compromise petition and prayed that the same may be
allowed and order be passed accordingly. The Court below vide order 04-03-
2003 held that as the compromise petition is filed voluntarily, the application formaintenance is hereby dismissed, the applicants 1 and 2/respondents 1 and 2
will not file any application under Section 125 of the Code for the maintenance
in future. The Court below also held that the other terms and conditions are
against the law and the same were rejected.
3. Thereafter, all the present respondents had again filed an application
under Section 125 of the Code for maintenance against the present petitioner,
the same was registered as Criminal M.J.C. No.56/08. The
respondents/applicants on 06-02-2009 prayed before the Judicial Magistrate
First Class, Jagdalpur that they do not want to press the said Criminal M.J.C.,
hence, the Court below dismissed the said application for maintenance as not
pressed.
4. Thereafter, the present respondents had filed again an application under
Section 125 of the Code for maintenance before the Judge, Family Court
Jagdalpur, C.G. against the present petitioner and the same is registered as
Misc. Criminal Case No.45/2015. Against filing of the said miscellaneous
criminal case for the maintenance the present petitioner/non-applicant filed the
instant Cr.M.P. invoking the jurisdiction available under Section 482 of the
Code to quash the proceeding regarding Misc. Criminal Case No.45/15 on the
ground that the same is hit by law of estoppel, the parties entered into
compromise, the respondent No.1 agreed that she will not file any
maintenance application against the petitioner and as this is third round of
litigation for the maintenance and as both the parties entered into the
compromise, the instant Misc. Criminal Case No.45/15 may be quashed.
5. Heard learned counsel for the petitioner on admission.
6. Learned counsel for the petitioner submits that the third application for
maintenance is barred by law of estopple; both the parties agreed mutually and
voluntarily to not to file any maintenance application against the present
petitioner and now the respondents are again praying for maintenance. Once
the parties entered into the compromise to not to sue for maintenance, therespondents cannot file the present Misc. Criminal Case 45/15. Hence, the
same may be quashed.
7. To appreciate the arguments advanced in this behalf, the instant
Cr.M.P., impugned orders as mentioned above and the other documents are
perused.
8. As per settled law, the respondents may file as many as application for
maintenance as the earlier two maintenance applications were not decided on
its merit. Any compromise for not suing the matter for maintenance is against
the law and the same cannot be acted upon.
9. For relevance, sub-section 2 of Section 125 of the Code is required to
be perused which reads as under :-
“125. Order for maintenance of wives, children and parents. –
(1) xxxxxx xxxxx xxxxx
(2) Any such allowance for the maintenance or interim
maintenance and expenses of proceeding shall be payable from the
date of the order, or, if so ordered, from the date of the application
for maintenance or interim maintenance and expenses of
proceeding, as the case may be.”
10. From perusal of the above provisions, it goes to show that whenever
interim maintenance application is filed, the Court orders regarding
maintenance from the date of order, or, if so ordered, the same shall be
payable from the date of the application for maintenance. The third application
for maintenance shows to be filed on 16-07-2015 as apparent from AnnexureP/6,
though no any order sheet regarding presentation of the said application
has been filed, but from perusal of Annexure-P/6, prima facie, it goes to show
that the application has been filed by the respondents, which is registered as
Misc. Criminal Case No.45/2015 on or after 16-07-2015. So far as provision of
Section 125(2) of the Code is concerned, at the most, the Court may grant
maintenance from the date of presentation of the application not before that as
the above mentioned two criminal M.J.C. Nos. 116/02 and 56/08 are not
disposed of on their merit. From perusal of the Annexure-P/6, it goes to showthat the element of the compromise have been mentioned in para 4 of the said
application. The M.J.C. No.56/08 was also disposed of as the
applicants/respondents had not pressed the said application, hence, the Court
below vide order dated 06-02-2009 dismissed the application as the same was
not pressed. The respondents /applicants are entitled for the maintenance, if
any, from the date of presentation of the application as the earlier applications
were not disposed of on their merit. Any terms and conditions in the
compromise against the law cannot be maintainable. The law of estoppel with
the facts of the present case is not attracted. If the applicants prove the
ingredients of Section 125 of the Code as the respondents/applicants are
unable to maintain themselves, the petitioner is having sufficient means,
willfully neglecting or refused to maintain the applicants/respondents as
required under Section 125(1) of the Code, the Court may grant maintenance
only from the date of presentation of the application at the best.
11. On due consideration, as the law of estoppel, Section 11 of the Code of
Civil Procedure and and any other relevant provision is not attracted in the
matter, in the considered view of this Court, the petitioner failed to demonstrate
any reason for the prayer that the proceeding before the Court below be
quashed. I do not see any illegality or impropriety for continuation of the said
proceeding before the Court below. Consequently, the instant petition is
dismissed as not maintainable in the motion stage itself.
12. The petition dismissed.
Sd/-
(Chandra Bhushan Bajpai)
JUDGE
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