498-a/406 and 125 crpc
raahat
(Querist) 20 September 2012
This query is : Resolved
Respected Experts,
The above metioned cases are pending before the Hon'ble court for last 10 years.Today both the accused and complainant agreed to settle their disputes on payment of Rs. 3 lakh for full and final settlement of the entire claim of maintenance as wel as istridhan and entire maintenance of children which has to be paid in seven installments over a year.It is mentioned in the settlement statement that after the fourth instalment the complainent wil withdraw her executions and after the sixth instalment she wil withdraw her 125 crpc petition and also sign a mutual concent divorce documets. The seventh instalment wil be paid at the High court at the time of quashing of FIR.
My Quations is :
1. after such statement recorded at family court if the complainant defaults what remedies are available as per law for the other party.
2.Can the complainant file DV case
3.Can the complainant or her childern asked share in the property of acused or his family.
4.can the complinant asked for relief or modified the settle amount in higher courts.
Devajyoti Barman
(Expert) 21 September 2012
1. Nothing, she can after the expenditure of the amounts always come to court and file case for maintenance.
2.Yes
3. Only children.
4.No
raahat
(Querist) 21 September 2012
Berman Sir,
once the ful and final sattelment has made by the accused and the complainant withdraw all her executions, 125 petiotion and the 498-A/406 case after recieving the ful and final amount.
1 is she free to file maintinance case against the accused.
2.if once the complainant accept the divorce and sign the mutual concent divorce as per muslim law can she futher go for DV.
3. under these circumtances what remedies are available for the accused.
Guest
(Expert) 21 September 2012
Poor chaps! They would already have gone down below poverty line during these ten years of pendency of the case on account of heavy kitigation expenses. They would definitely have taken a good lesson 498a/406/125 case after which they would have got wisdom to settle the case with mutual consent.
But, from the nature of your query it reveals as if you have the intention to drag the parties to the court of law for some more years in future also. If so, what is the logic of final settlement?
Mr. Raahat, kya ab bhi aapko lagta hai ki unko 10 saal ke baad bhi raahat ki saans nahin laini chahiye? Just think what any one of them could gain on application of draconian provisions of law?
raahat
(Querist) 21 September 2012
Dhingra sir,
me to khud chahta hoon ki rahat ki saas mile lakin kuch aise sawalat he jo sata rahe he kyonki complainant bohat chatur he or wo settlement kerne ke baad b maintainance ke liye apply ker sakti he ye he mera sawal....
ajay sethi
(Expert) 21 September 2012
there is a judgement of gujrat high court that wherein cosent terms are signed and wife has waived her rights of future maintenance she can not agin claim maintenance . her application for maintenance would be dismissed
ajay sethi
(Expert) 21 September 2012
Gujarat High Court
Aiyubkhan vs Mumtaz on 3 July, 2012
Author: Bankim.N.Mehta,
CR.RA/34/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 34 of 2011
=========================================================
AIYUBKHAN
ISMAILKHAN PATHAN - Applicant(s)
Versus
MUMTAZ
SHAHBHAI SUMRA & 2 - Respondent(s)
========================================================= Appearance
:
MR
AMIT SHAH FOR MR. MANISH R RAVAL for
Applicant(s) : 1
MR NISHANT LALAKIYA for Respondent(s) : 1-2 MR.
N.J. SHAH, APP, for Respondent(s) : 3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 03/07/2012
ORAL
ORDER
The
petitioner has challenged the order of maintenance passed by learned Principal Judge, Family Court, Rajkot, on 25.10.2010 in Criminal Miscellaneous Application No. 218 of 2008 by preferring this Revision Application under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973.
2. According
to the petitioner, respondent No. 1 was his wife and respondent No. 2 was his minor daughter. Respondent No. 1 filed Criminal Miscellaneous Application No. 218 of 2008 claiming maintenance for herself and for minor daughter alleging that after marriage she was ill-treated and was driven out of the house when she was pregnant and since then she has been residing with her parents. It was also alleged that the petitioner obtained her signature on divorce Deed illegally against the provision of law on the promise that the petitioner would give Rs. 1 lakh each by way of fixed deposit but did not pay the amount and hence the divorce document is illegal and not binding the respondents. Therefore, the application to obtain maintenance under Section 125 of the Code of Criminal Procedure was filed in the Court of learned Chief Judicial Magistrate at Rajkot by filing Criminal Miscellaneous Application No. 289 of 2007.
3. On
establishment of Family Courts at Rajkot, the said proceedings came to be transferred to the Family Court and it was registered as Criminal Miscellaneous Application No. 218 of 2008.
4. The
petitioner appeared in the said proceedings and contested the same by filing written statement at Exh. 13 mainly contending that respondent No. 1 has been divorced by him on 17.9.1991 in presence of two witnesses and in the proceeding of Criminal Miscellaneous Application No. 299 of 2000 filed under Section 127 of the Code of Criminal Procedure the disputes were settled between the parties and the settlement was produced at Exh. 6 in the said proceedings and according to the settlement Demand Draft of Rs. 75,000/- towards the amount of future maintenance was given to the respondents and respondent No. 1 accepted the same for self and as guardian of minor daughter and agreed that no amount of maintenance is to be claimed in future. Therefore, the respondents are not entitled for the amount of maintenance and these facts of compromise have been suppressed by the respondents. Therefore, they are not entitled for maintenance and hence this application is required to be dismissed.
5. The
trial Court, after considering the evidence produced on record of the case, by impugned judgement awarded maintenance at the rate of Rs. 3000/- per month to respondent No. 1 and at the rate of Rs. 2500/- per month to respondent No. 2 from the date of application and also awarded cost of Rs. 1000/-. Being aggrieved by the said decision, the present application has been filed.
6. I
have heard learned advocate Mr. Amit Shah for learned advocate Mr. Manish Raval for the petitioner and learned advocate Mr. Nishant Lalakiya for the respondent Nos. 1 and 2. I have also perused the impugned judgement and copy of the evidence annexed with the compilation and shown to me at the time of hearing of the Revision Application.
7. Learned
advocate Mr. Shah submitted that the petitioner gave divorce to his wife and after several proceedings there was settlement between the parties and amount of Rs. 75,000/- was paid to the respondents towards full and final settlement in respect of maintenance and respondent No. 1 accepted the said amount. Therefore, she could not have filed proceedings under Section 125 of the Code of Criminal Procedure to obtain maintenance. He also submitted that the respondents suppressed the fact of payment of maintenance amount and therefore learned trial Judge though the evidence with regard to the payment of lumpsum amount of maintenance was on record, failed to appreciate the same and therefore the impugned judgement is required to be set aside. He relied on the decision of this Court in the case of SHRIPATSINH KESHRISINH RANAWAT VS. STATE OF GUJARAT reported in 2010 Cr. L.R. (Guj.) 81.
8. Learned
advocate Mr. Lalakiya for respondent Nos. 1 & 2 submitted that the amount paid to the respondents was not substantial amount to meet with the future demands. Therefore, the respondents were entitled to claim future maintenance. He also submitted that learned trial Judge after considering the evidence produced on record of the case and considering the compromise pursis Exh. 6 filed in the proceedings before learned Magistrate, recorded that despite divorce, the respondents were entitled for maintenance. Therefore, learned trial Judge appreciated the evidence produced on record of the case and hence no interference is warranted in the impugned judgement. Hence the Revision Application is required to be dismissed.
9. It
appears that in the oral evidence respondent No. 1 showed her ignorance about the fact that the petitioner filed proceedings in the Rajkot Court to set aside the order of maintenance passed earlier by filing Miscellaneous Criminal Application No. 299 of 2000 but admitted that there was settlement in the said proceedings and she accepted the Demand Draft of Rs. 75,000/- towards settlement but vounteered that the said amount was given towards the amount given by her father. The witness also admitted that in para 6 of the settlement she agreed to withdraw all the pending cases but volunteered that on account of pressure she withdrew the cases. The witness also admitted that at the time of settlement her advocate was also present and as she admitted compromise, the Court passed order thereon. The witness volunteered that in order to extract money she admitted the settlement.
10. In
view of above evidence it is clear that respondent No. 1 admitted that she received the amount of Rs. 75,000/- from the petitioner and withdrew the proceedings of maintenance filed by her. Respondent No. 1 tried to give explanation in respect of receipt of amount by saying that the said amount was given towards re-payment of the amount given by her father. However, no evidence in that regard was produced. On appreciation of the evidence as a whole it emerges that the respondent received amount towards full and final settlement of her claim of maintenance and admitted the said fact before the Court. Therefore, in my view, though the respondents received the amount of future maintenance, she claimed maintenance by filing the present proceedings.
11. The
petitioner produced a copy of the settlement between the parties in the trial Court at Mark 12/2. The said settlement was made in Criminal Miscellaneous Application No. 299 of 2000 filed in the Court of learned Chief Judicial Magistrate, Rajkot. Learned trial Judge has relied on this document, though it is not admitted in evidence. The respondents have also not disputed this settlement. Therefore, there is no reason to dispute the settlement. On perusal of the said document, it appears that respondent No. 1 accepted the amount of Rs. 75,000/- towards settlement of future maintenance for herself and her daughter. It also indicates that the respondents agreed not to claim any maintenance in future. Therefore by said settlement, the respondents obtained lumpsum amount towards future maintenance and waived their right to claim future maintenance. It appears that learned trial Judge committed serious error in appreciating the evidence produced on the record of the case. Therefore, in my view, the impugned judgement is required to be set aside.
12. In
the decision of SHRIPATSINH KESHRISINH RANAWAT VS. STATE OF GUJARAT (supra) this Court ruled that when civil matter was settled in the year 1983, and after long period of 9 years, proceeding under Section 125 of the Criminal Procedure Code was filed, the respondent was not entitled to any maintenance as once matter is settled, right of respondent to get maintenance under Section 125 of the Criminal Procedure Code does not survive as relation between the parties comes to an end. In the present case it emerges that the amount of future maintenance was received by the respondents in the year 2000 by way of settlement in the proceedings and on account of such settlement, the proceedings for claiming maintenance were withdrawn by the respondents. Thereafter, in the year 2007 proceeding under Section 125 of the Code of Criminal Procedure was filed. Therefore, in view of this judgement, the respondents are not entitled to claim maintenance as they received the amount of future maintenance.
13. In
view of above, learned trial Judge committed error in awarding the amount of maintenance to the respondents. Therefore, the impugned judgement is required to be set aside.
14. In
the result, the Revision Application is allowed. The judgement and order dated 25.10.2010 passed by learned Principal Judge, Family Court, Rajkot, in Criminal Miscellaneous Application No. 218 of 2008 is set aside. Rule is made absolute.
(BANKIM N. MEHTA, J)
Guest
(Expert) 21 September 2012
Dear Raahat,
Your query did not reveal whether you were any accomplice or relative of the complanant, the opposite party to the complainant, or some adviser to any party who would be interested in the litigations to continue between the parties.
Anyway, the replies to your supplementary queries are as follows:
1) Although chances are remote, but in case of default or whenever she feels inadequacy of relief for her survival, she has the liberty and right to approach the court for revision of maintenance allowance for herself and monor children.
2) DV case won't have sufficient standing after mutual settlement that too when it has not been taken up any time during the last 10 years of litigation. It can be taken up as an afterthought just to resort to causing intentional harassment to husband.
3) No remedy, except to effectively justify your stand.
raahat
(Querist) 21 September 2012
I am very much thankful to all respected experts specialy Ajay sir, Dhingra sir and Burman sir. I am heartly thankful to Ajay sir for his valuable advice and citation of Gujrat High court and Dingra sir advice too are near to my heart.
