1. The applicant has preferred the present revision being aggrieved with the order dated 31.3.2008 passed by the Additional Sessions Judge, Multai in Criminal Revision No.78 of 2007 whereby the order dated 5.5.2007 passed by the JMFC, Multai in MJC No.49/2003 was set aside in which a maintenance of Rs.1000/- per month was granted to the applicant.
2. The facts of the case in short are that, the marriage of the parties took place on 5.5.1983 and after some time the applicant was ousted from the house of the respondent no.1. A compromise took place between the parties and again the applicant resided with the respondent no.1 up to 1996. In the year 1997, the applicant was again sent to the house of her parents. The applicant has filed an application under Section 125 of the Cr.P.C on the basis of these facts and with a pleading that the respondent no.1 kept one Munni as a wife in his house and therefore, the applicant was entitled to get maintenance from him without residing with him. The salary and income of the respondent was pleaded and a maintenance of Rs.2000/- per month was demanded in the application.
3. The respondent no.1 in his reply has submitted that in various proceedings compromise took place between the parties. On 3.11.1996, a compromise took place in MJC No.161/1991 that the applicant received a sum of Rs.18,000/- as a lump sum maintenance and her maintenance application was disposed off in Lok Adalat therefore, now she was not entitled for any maintenance. It is also pleaded that a decree of divorce has already been passed in favour of the respondent no.1.
4. After considering the evidence adduced by the parties, the trial Court granted a maintenance of Rs.1000/- per month to the applicant whereas, the revisionary Court set aside the order passed by the trial Court.
5. I have heard the learned counsel for the parties at length.
6. The only question in the case is that whether the applicant is entitled to get any maintenance from the respondent no.1, when a compromise took place between them and a lump sum maintenance was paid to the applicant. The learned counsel for the respondent no.1 has submitted that the applicant could get the maintenance after a decree of divorce until she remarries. He has placed reliance on the order passed by the single Bench of this Court in the case of "Leeladhar Vs. Laxmibai" [1999 (II) MPWN Note 28]. It is an admitted position that the applicant was entitled to get maintenance as a divorced wife under Section 125 of the Cr.P.C. In the present case, it is to be seen that when the applicant accepted a lump sum of Rs.18,000/- as a full and final maintenance then whether she could file a fresh application of maintenance. The JMFC, Multai found that the evidence given by the respondent/witnesses was not trustworthy and therefore, a maintenance of Rs.1000/- was granted whereas, the revisionary Court found that when a lump sum maintenance was granted to the applicant then she cannot demand any further maintenance.
7. It was pleaded by the respondent no.1 that in MJC 169/1991, a compromise took place between the parties and on the basis of that compromise, on 14.11.1996 the case was disposed off before the Lok Adalat and a lump sum payment of Rs.18,000/- was given to the applicant as maintenance. However, if the entire record of the trial Court is perused then, it would be apparent that copy of the judgment passed by the IIIrd Joint Civil Judge, Senior Division, Nagpur was exhibited to show that the decree of divorce was granted in favour of the respondent but, no order of Lok Adalat is exhibited. However, a plain copy of order sheet dated 14.11.1996 along with an agreement is placed in 'B' file of the trial Court. During the cross examination of the applicant, such documents were not shown to the applicant and therefore, the alleged memo of agreement and copy of the order sheets were not properly proved before the trial Court.
8. Order sheet of a Court or Lok Adalat is a public document which can be accepted in evidence at any stage and therefore, the Additional Sessions Judge has rightly found that the applicant had received a lump sum payment of Rs.18,000/- and the case was disposed off.
9. The wife after getting a maintenance order under Section 125 of the Cr.P.C is entitled to get modification in that order under Section 127 of the Cr.P.C. on the basis of the increase in the income of her husband or increase in her expenditure or on the basis of any other reason and therefore, after passing the order under Section 125 of the Cr.P.C there is a provision of law for enhancement of the maintenance amount. The order dated 14.11.1996 passed by the Lok Adalat was not an order on merits. It was a simple pronouncement of the disposal of the case on the basis of an agreement which took place between the parties. However, the wife was entitled to get modification in the maintenance order under Section 127 of the Cr.P.C. If any agreement is done defeating any statute then such an agreement cannot be considered as a valid contract. According to the provisions of Section 28 of the Indian Contract Act, 1872 if any contract takes place which extinguishes the right of any party then such portion of the contract which violates the statutory provision is void, which is not enforceable. In the present case, an agreement took place between the parties was valid for the amount of maintenance and payment of maintenance but, the condition that the applicant could not ask for further maintenance was violative to the provisions of Section 127 of the Cr.P.C and therefore, that portion of contract was void under Section 28 of the Indian Contract Act. Under such circumstances, if the maintenance application of the applicant was disposed off due to agreement then the applicant was not prohibited to move a fresh application under Section 125 or 127 of the Cr.P.C. If the void portion of the contract between the parties is removed then certainly the applicant was entitled to file a fresh application of maintenance. Since no modification was possible in the order dated 14.11.1996, the applicant was not bound to move the application under Section 127 of the Cr.P.C and she could file an application under Section 125 of the Cr.P.C with help of provision under Section 127 of the Cr.P.C.
10. On the basis of the aforesaid discussion where the trial Court had granted the maintenance at the rate of Rs.1000/- per month to the applicant after considering that the full and final settlement took place between the parties then such order should not be set aside by the revisionary Court only on the basis that an agreement took place contrary to the statutory provisions of Section 127 of Cr.P.C. The Additional Sessions Judge, Multai has committed an error of law in setting aside the order passed by the trial Court and therefore, the order passed by the revisionary Court cannot be maintained. The applicant was entitled for enhancement in maintenance amount and therefore, she was competent to move an application for maintenance though she had received a full and final payment towards the maintenance. Under these circumstances, the order passed by the revisionary Court suffers from illegality and perversity and therefore, the revision filed by the applicant can be accepted. The order dated 31.3.2008 passed by the Additional Sessions Judge, Multai is hereby set aside whereas, the order dated 5.5.2007 passed by the JMFC, Multai is hereby restored.
11. Copy of the order be sent to both the Courts below along with their records for information and compliance.