Durga Dutta Jha Late Dayanand Jha Vill-Shiv Nagar, Via-Basaith v. Smt.Asha Devi Late Rup Kant Jha Vill-Dhanga (West)

Maintenance Case No. 12/88 was filed by his wife/OP, Smt. Asha Devi which was allowed vide order dated 08.03.1995 directing him to pay Rs.300/- per month in lieu of maintenance and the order was made operative from the date of filing of petition. It has further been submitted that in due course of time there was proposal on behalf of his wife to pay a lump sum so that she be 2 able to procure interest of Rs. 500/- or 600/- per month to be sufficient for her livelihood and in exchange thereof, she also agreed to give up her claim whatever found acknowledged under Maintenance Case No. 12/88 as well as future claim. The proposal was accepted by him and a consolidated amount of Rs. 55,500/- was paid in instalments and in the aforesaid background she had sworn an affidavit to this effect.

3. Later on, Smt. Asha Devi developed ill design after receiving the aforesaid consolidated amount of Rs. 55,500/- and filed a petition on 03.09.2004 to enhance the quantum of maintenance from Rs. 300/- to 2500/-. However, no order was passed thereupon. Again on 05.09.2008, she had prayed for enhancement of maintenance amount from Rs. 300/- to Rs. 3000/- whereupon the learned court below enhanced the amount of Rs. 300/- to Rs. 7000/- by the order impugned which was never demanded or claimed by Smt. Asha Devi.

4. In the aforesaid backdrop, it has also been submitted that from the order impugned, it is evident that learned lower court had duly acknowledged the receipt granted by Asha Devi, in token of receiving of amount appertaining to Rs.55,500/- accepted the averments on affidavit, then in that circumstance, the theme of one time settlement is found fully proved but the learned 3 lower court deflected therefrom and took a contrary view which the learned lower court should not have done. It has further been submitted that Asha Devi never claimed enhancement to the extent of Rs.7000/-. As such, allowing the same to that extent, shows the conduct of the P.O. to be more docile than expected in favour of Asha Devi. Hence, the order is suffering from arbitrariness as well as based upon unfounded conclusion and is fit to be set aside.

5. The Opposite Party is not found to be properly represented at the time of hearing of the petition on account of absence of learned counsel. Hence, with the assistance of learned counsel for the petitioner, the records along with the order impugned have been gone through.

6. From the order impugned, it is apparent that petitioner/husband never remained pious in his conduct because of the fact that the order dated 08.03.1995 was never complied with at his end in its true spirit. It is also apparent from the order impugned that a full fledged enquiry was conducted over enhancement of maintenance amount whereunder petitioner/husband made protest on the basis of one time settlement. It is an admitted fact that no petition in any form was ever filed before the learned lower court on behalf of either of the party to rescind the order dated 08.03.1995 in the background of 4 so called one time settlement.

7. From the lower court record, it is further evident that on 11.12.95, a petition was filed on behalf of wife for execution of order dated 08.03.95 whereupon O.P. husband was noticed, who appeared and contested the prayer over factum of one time settlement and the same was negativated vide order dated

11.10.96. However, the aforesaid order was set aside vide order dated 26.02.98 passed in Cr. Revision No. 1328/96 by the learned Sessions Judge, directing to conduct full fledged enquiry which was accordingly taken up and vide the order impugned, the same has been decided. It is further evident from the order impugned that altogether Rs. 75,100/- is due on account of non payment of arrear. It is also evident that from the order dated 08.03.1995 that the order which has been made operative from the date of filing of petition, huge arrear stood and so a liberty was granted to the husband to clear the arrear in two instalments or so agreed in between the parties. It is also evident from the order impugned that amount appertaining to Rs. 55,500/- was paid in instalments in the year 1995 itself and the court adjusted the same towards outstanding dues.

8. In the aforesaid background, one has to see the impact of suggestion made on behalf of petitioner/husband that on 5 account of one time settlement, prayer for enhancement should not have been entertained.

9. In the case of Nagendrappa Natikar v. Neelamma as reported in AIR 2013 SC 1541 the instant issue has been taken into consideration under paragraphs-10 and 11 which are as follows:-

10. Section 125 Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.

11. Section 25 of the Contract Act provides that any agreement which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful. Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 or otherwise cannot Cr.P.C. foreclose the remedy available to a wife under Section 18(2) of the 1956 Act. by compromise

10. Therefore, the plea of the petitioner/husband that on account of one time settlement arrived at in between the parties the effect and impact as well as relevance of order dated

08.03.1995 has evaporated, is legally not at all sound. 6

11. Now coming to the propriety of the order, it is apparent that enhancement is permissible in the eye of law and accordingly made on behalf of wife on that very score is maintainable. It is also evident from the order impugned that at the time of passing of order petitioner/husband was drawing monthly salary appertaining to Rs. 28,000/-. However, the petition dated

05.09.2008 which has been taken into consideration under order impugned as well as taking into account the evidence of Asha Devi whereunder she had not stuck herself to the extent of Rs. 7000/- per month, for the present appears to be excessive and further considering the materials available on the record as well as the reason assigned by the learned lower court, it looks desirable to have some sort of reduction over quantum of maintenance and is accordingly, reduced to Rs. 5000/- per month in stead of Rs. 7000/- as directed by learned lower court even taking in account the time spent during having the prayer inconsonance with the date of passing of order. However, the wife will be at liberty to ask for enhancement whenever situation so arises.

12. The revision petition is dismissed with the modification as aforesaid. (Aditya Kumar Trivedi, J) Patna High Court October 30th 2013 Perwez/AFR