In this revision, the High Court upheld the appellate court's order granting maintenance to a divorced wife and minor daughter, rejecting a flattag agreement as contravening public policy and Section 125 CrPC.
Maintenance of Rs.500 per month to both respondents affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
Crl.P.No. 7913 of 2007
Date: 15-07-2010
Between: Kotpati Ramesh
………. Petitioner
and
Kotapati Rama and others
…………. Respondents
HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.P.No. 7913 of 2007
ORDER:
This Revision Petition is filed by husband/father against order dated 14-03-2007 passed by the IV Additional Sessions Judge, Nellore, in Crl.R.P.No.89 of 2006 reversing order dated 06-102006 passed by Judicial Magistrate of the First Class, Kota, in M.C.No.8 of 2001.
The first respondent is divorced wife of the petitioner. After divorce, she remained unmarried. The second respondent is minor daughter of the petitioner and the first respondent. As the matter now stands, the petitioner married second wife after divorce and he has got two children through his second wife. The Magistrate refused to grant maintenance to the respondents 1 and 2 under Section 125 Cr.P.C. Whereas in Revision, the Additional Sessions Judge granted maintenance of Rs.500/- each per month to the respondents 1 and 2 from the petitioner.
Ex.R-1 is divorce decree granted between the petitioner and the first respondent in Senior Civil Judge’s Court, Srikalahasti. Ex.R-2 is agreement said to have been entered into between the petitioner and the first respondent, under which the petitioner is stated to have paid Rs.70,000/- to the first respondent. According to the petitioner, the said amount of Rs.70,000/- was paid towards permanent alimony payable to the respondents 1 and 2. On the other hand, the Additional Sessions Judge pointed out that out of Rs.70,000/- mentioned in Ex.R2 agreement, Rs.35,000/- was noted to be paid towards future
maintenance to the respondents 1 and 2 and Rs.35,000/- was paid towards repayment of the amounts which the petitioner received from the first respondent’s father, perhaps towards dowry. The Additional Sessions Judge, after surveying case law on the subject and citing decisions of Patna, Karnataka and Kerala High Courts, came to the conclusion that there cannot be an agreement against law and that agreement relinquishing rights as per law is contrary to law and opposed to public policy. This Court is also of the view that insofar as the right to claim maintenance under Section 125 Cr.P.C. is concerned, there cannot be contracting out of the said provision between the parties. Past possession of property or cash with the claimants is not the criterion under Section 125 Cr.P.C. The requirement under Section 125 Cr.P.C. is whether the claimants have present means to maintain themselves. In the absence of proof of possession of any property or money with the claimants, they cannot be thrown out of Criminal Court from the proceedings under Section 125 Cr.P.C. RW-5, who is scribe of Ex.R-2 and who is also father of the first respondent, did not speak to passing of any amounts thereunder. Admittedly, the petitioner is now married again and is living with his wife and children.
A divorced wife is entitled to claim maintenance from her quondam husband in case she is unmarried and is unable to maintain herself. The second respondent, being a minor daughter, certainly has no means to maintain herself. When the petitioner is able to maintain his new family consisting of new wife and two children, he cannot say that he has no means to maintain the respondents 1 and 2. Admittedly, the petitioner has got landed properties. In these circumstances, the Additional Sessions Judge is legally justified in awarding maintenance to the respondents 1 and 2. After all, the amount of maintenance granted to the respondents 1 and 2 @ Rs.500/- per month works out at Rs.16-66 ps per day to each of them. The said paltry maintenance amount is not at all excessive and it was granted in accordance with law.
Hence, the Criminal Petition is dismissed.
___________________________ SAMUDRALA GOVINDARAJULU ,J
Date: 15-07-2010 YCR
1 issue framed by the court
Whether a divorced wife and minor daughter can claim maintenance from former husband agreeing to pay only a sum in lieu of permanent alimony
1 provisions across 1 enactments
Kotpati Ramesh
Kotapati Rama
SAMUDRALA GOVINDARAJULU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
