Dismissed

Tariq Mehmood Bhat v. Zubaida Akhtar and Another.

J&K HC2 Sept 2021CRM(M)/139/2020

Case brief

AI extract

What is this about?

The High Court of Jammu & Kashmir dismissed an appeal against the setting aside of a compromise order. The court held that section 488 CrPC bars under section 369 Cr.P.C. do not apply, allowing recall of settlement if justice demands, particularly to protect women and children.

What did the court decide?

The maintenance order based on compromise was not recalled as the petitioner was not incapacitated by distress.

Tariq Mehmood Bhat Vs Zubaida Akhtar and Another. — Maintenance and Alimony | J&K HC (2021)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Reserved on 11.08.2021 Pronounced on: 02.09.2021

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CRM(M) No. 139/2020 CrlM No. 351/2020

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Tariq Mehmood Bhat

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…..Appellant(s)/Petitioner(s)

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Through: Mr. C. M. Koul, Sr. Advocate with Mr. A. R. Bhat, Advocate

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Zubaida Akhtar and another

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.…. Respondent(s)

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Through: Mr. R. K. S. Thakur, Advocate

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Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

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JUDGMENT

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The present petition has been filed by the petitioner under section 482 Cr.P.C. for setting aside the order dated 07.02.2020 passed by the 1^st Additional District Judge, Jammu (hereinafter to be referred as the revisional court) pursuant to which the revision petition filed by the respondents against the order passed by the JMIC (Sub Judge) Jammu dated 18.10.2019 (hereinafter to be referred as the trial court) was allowed.

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It is stated that the respondents filed an application under section 488 Cr.P.C. before the learned trial court and the petitioner and the respondents entered into a compromise with the respondents and

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2 CRM(M) No. 139/2020

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agreed to pay an amount of Rs. 15000/- per month to the respondents. The statement of the petitioner was recorded in support of the same and the learned trial court vide order dated 22.01.2018 disposed of the said application permitting the petitioner to pay a sum of Rs. 15,000/- per month to the respondents.

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It is further stated that thereafter the petitioner filed an application before the learned trial court for withdrawal/retraction of the consent accorded by the petitioner on the ground that father of the petitioner had passed away on 27.12.2017 and the petitioner was shattered and in distressed state of mind and the petitioner consented to pay Rs. 15,000/- per month to the respondents as maintenance in that distressed state of mind. The trial court vide order dated 18.10.2019 allowed the said application.

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The respondents assailed the said order in the revisional court and the revisional court vide order dated 07.02.2020 allowed the revision petition filed by the respondents and set aside the order dated 18.10.2019 passed by the learned trial court.

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The petitioner has raised the following questions in the present petition:

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i. Whether the proceedings under section 488 CrPC are entirely civil proceedings?

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ii. Whether an application in terms of section 151 of Civil Procedure Code to retract/recall the consent provided earlier in order to arrive at a compromise when such consent was the outcome of the disturbed/perturbed mind?

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iii. Whether the maintenance in terms of section 488 CrPC can be granted to a child who had already attained the age of majority

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3 CRM(M) No. 139/2020

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particularly in the face of requirement of law i.e. section 488 clause 1(c).”

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Mr. C. M . Koul, learned senior counsel appearing for the petitioner has vehemently argued that the findings returned by the revisional court are not tenable in the instant case as the proceedings under section 488 CrPC are not essentially criminal proceedings in nature and further that the revisional court has wrongly come to the conclusion that the reasons given by the learned trial court in justifying his view of treating the proceedings as civil proceedings are not valid and are not in consonance with the object of the provisions of section 488 Cr.P.C. Mr. Koul further argued that the learned revisional court has virtually granted the maintenance to the son who is major and is not entitled to maintenance. Mr. Koul has further vehemently argued that the revisional court has not decided the issue whether the proceedings under section 488 Cr.P.C. are civil in nature or not but has proceeded to set aside the order on the premise that section 488 Cr.P.C. is a social welfare legislation meant for the welfare of the children, wife and the parents so it is required to be interpreted in that manner.

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Per contra , Mr. R. K. S. Thakur, learned counsel for the respondents has vehemently argued that once the petitioner has entered into a compromise subsequently he cannot turn around and say that he was in extreme distress and that is why he entered into a compromise. Mr. Thakur further submits that the major son who is unable to maintain himself is also entitled to maintenance.

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4 CRM(M) No. 139/2020

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Heard and perused the record.

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From the record, it is evident that the petitioner had agreed to pay Rs. 15,000/- per month as maintenance to the respondents.

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Now, the following issue arises for consideration:

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Whether the order passed under section 488 Cr.P.C. on the basis of a compromise can be recalled at the instance of the party and if so, under what circumstances the same can be recalled?

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The Hon’ble Apex Court in Sanjeev Kapoor Vs Chandana Kapoor, 2020(13) SCC 172 examined as to whether embargo contained in section 362 Cr.P.C. prohibiting the court to alter or review its judgment or final order disposing of the case is applicable to an order of maintenance passed under section 125 Cr.P.C. or not and the Hon’ble Apex Court observed that embargo as contained in 362 Cr.P.C. is clearly relaxed in the proceedings so far as proceedings under section 125 Cr.P.C. are concerned. Section 362 Cr.P.C. corresponds to section 369 Cr.P.C. as was applicable in the erstwhile State of Jammu and Kashmir. It reads as under:

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362. Court not to alter judgment

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Save as otherwise provided by this Code or by any other law for the time being in force or in the case of High Court, by the Constitution of High Court, no court, when it has signed its judgment, shall alter or review the same except to correct the clerical error.

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There is a distinction between 362 of the Central Cr.P.C. and 369 of the Cr.P.C. Section 362 provides for that no judgment or final order

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disposing of the case can be altered or reviewed except to correct clerical or arithmetic error whereas under section 369 Cr.P.C., the only reference has been made to alteration or review of judgment and no reference has been made to the order disposing of the case finally. The Hon’ble Apex Court in Sanjeev Kapoor’s case (supra) has held that the bar contained in section 362 is not applicable to the proceedings under section 125 Cr.P.C. On the same analogy, the bar contained in section 369 Cr.P.C. shall not be applicable in the proceedings under section 488 Cr.P.C.

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In Sanjeev Kapoor’s case (supra), the parties had entered into a settlement before a family court in which the husband agreed to pay maintenance to his wife and children and as the husband did not comply with the said terms and conditions of settlement with regard to payment, the wife filed an application for recalling of that order on the ground that her husband has not complied with the order and the family court recalled the order, that order was impugned by the husband unsuccessfully before the High Court and thereafter before the Supreme Court Hon’ble Apex Court. The Hon’ble Apex Court in para 30 has observed as under:

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“30. It has come on the record that after passing of the above order on settlement, the appellant according to his own case has paid only an amount of one lakh rupees i.e. maintenance of four months after May 2017. The arrears from July 2015 to April 2017 has not been paid by the appellant within six months which was the time allowed by the court. When the appellant did not honour its commitment under settlement, can the wife be left in the lurch by not being able to press for grant

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of maintenance on non-compliance by the appellant of the terms of settlement. The answer is obviously “No”. Section 125 CrPC has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted.”

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Now it is to be seen whether the petitioner has succeeded in carving out a good ground for recalling the order or not. The only ground that has been raised by the petitioner that due to demise of his father he was in great distress and due to that reason he entered into a settlement. This Court is of the view that it was not the case of the petitioner that he suffered from any mental disorder or infirmity that incapacitated him from thinking rationally. Rather the petitioner agreed to pay maintenance to his wife and child by paying an amount of Rs. 15,000/- per month as maintenance and it cannot be said that because of his grief, the petitioner has not acted rationally and in fact he has acted like a responsible father and husband as the case may be by agreeing to pay the maintenance to his wife and child. In judgment mentioned above, the Hon’ble Apex Court has observed that the provisions of section 125(488) CrPC are to be interpreted into a manner so as to advance justice and protect the woman for whose benefit the provisions have been enacted and the learned revisonal court has rightly come to the conclusion that the provisions under section 488 CrPC are for the benefit of parents, wife and children and they are required to be interpreted the manner that serve the purpose and not defeat the purpose for which they have been incorporated.

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7 CRM(M) No. 139/2020

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The last contention that has been raised by Mr. Koul is that the petitioner has been forced to pay maintenance to major son. Needless to say, that the petitioner can approach the trial court for alteration of the order under section 489 Cr.PC. so as to demonstrate that the major son is capable to maintain himself. There is nothing on record to show that the major son of the petitioner is gainfully employed or has attained such qualification so as to maintain himself, as such, the petitioner is left free to avail remedy as available under law.

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Viewed thus, there is no merit in this petition and the same is dismissed.

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Jammu 02.09.2021 Rakesh

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(Rajnesh Oswal)
Judge
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No

Tariq Mehmood Bhat v. Zubaida Akhtar and Another.

Case brief

What is this about?

What did the court decide?

Tariq Mehmood Bhat v. Zubaida Akhtar and Another.

Case brief

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