Chimata Nagarathnamma Vs. Chimata Nathanail and anr. - Court Judgment

Excerpt:
criminal - maintenance - sections 125 and 127 of criminal procedure code, 1973 - whether wife is entitled to invoke section 125 where husband fails to pay monthly maintenance under agreement or remedy is open by way of suit of specific performance of agreement - respondent questioned applicability of section 125 - non-payment of maintenance as per terms of agreement amounts to negligence on part of husband as contemplated in section 125 - held, wife was entitled to seek maintenance under provision of said section even though she had right to approach civil court for grant of maintenance. - - 6. the case of the petitioner is that after the marriage they lived happily for some time, that two daughters were born to them, that thereafter as they were not getting on well, the agreement (ex. in the absence of any money order receipt, the evidence of the husband seems to be not reliable. therefore, i hold that since the husband failed to pay maintenance to the wife, the wife is certainly entitled to approach the court for the relief of maintenance under section 125, cr.order1. in this revision filed by the wife, the twin questions that arise are : (i) whether the wife is entitled to invoke section 125, cr.p.c. for grant of maintenance in a case where the husband fails to pay the monthly agreed amount under an agreement entered into between the parties for their living separately consequent upon certain differences that arose between them; and (ii) if the agreement entered into between the spouses for their living separately is committed breach of by non-payment of agreed monthly amount to the wife, whether the remedy open is only by way of a suit for specific performance of the agreement. 2. the facts of the case in brief are : the respondent is the husband of the petitioner herein. their marriage as per hindu rites took place on 4-5-1961. after the marriage they lived amicably for some time. two female children were born to them. thereafter, differences arose. both of them agreed to live separately. an agreement (ex.p. 3) dated 12-10-1971 was entered into between them. under the agreement, the husband agreed to pay the wife rs. 50/- per month. the husband paid as that rate up-till 1985 and thereafter did not pay. therefore, the wife filed m.c. no. 14/87 under section 125, cr.p.c. on the file of the second additional munsiff-magistrate, tenali, claiming maintenance of rs. 400/- per month. the husband filed a counter contending that he was paying the maintenance as per the agreement entered into between them and that if there is breach of the agreement the remedy open to the wife is to approach the civil court by filing a suit and it is not open to her to resort to the proceedings under section 125, cr.p.c. it was also contended by the husband in the counter that both of them were living separately with consent and that the wife was unchaste. the wife was working as a coolie and the earnings derived therefrom were sufficient for her, that the daughters were married and that there are no grounds in the petition filed by her for grant of maintenance and it is liable to be dismissed. 3. on behalf of the wife, besides herself examined as p.w. 1, another witness was examined and exs.p. 1 to p. 6 marked. the respondent examined himself as r.w. 1 and another as r.w. 2. ex. d1 was marked. the trial court, having considered the rival contentions of the parties, found that the agreement was entered into between the parties with consent and the agreement is genuine. it also found that the allegation of unchastity of the wife is not proved and the said allegation amounts to legal cruelty. the husband has not proved that he was paying rs. 50/- per month from 1985 onwards. it also found that the husband neglected the wife and that he was getting a salary of rs. 2,025/- per month. accordingly it awarded rs. 300/- per month. 4. against that order, the husband preferred a revision. the revisional court, relying upon a judgment of this court rendered in kamatham venkatamma v. kamatham buruju ramanna, 1989 (2) ap law journal 186 : (1989 cri lj 2416) held that the proceedings under section 125, cr.p.c. cannot be maintained even if there is a breach of the agreement executed between the parties. accordingly, it set aside the order of the trial court and allowed the revision. hence the present revision by the wife. 5. the learned counsel for the petitioner-wife contended that the wife was neglected by her husband as no maintenance, though agreed to, was paid to her and therefore, the proceedings under section 125, cr.p.c. are maintainable. the learned counsel for the respondent on the other hand contended that once there is an agreement the wife is not entitled to file a petition under section 125, cr.p.c. and that the only remedy available to the wife is to seek specific performance of the agreement. 6. the case of the petitioner is that after the marriage they lived happily for some time, that two daughters were born to them, that thereafter as they were not getting on well, the agreement (ex.p. 3) was executed between them, under which the husband agreed to pay her maintenance at the rate of rs. 50/- per month, which he did up to june, 1985 and thereafter did not pay the same. 7. section 125, cr.p.c. says that if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, can claim maintenance and on proving that she was neglected and had no means to maintain herself and that her husband had got sufficient means, then the court will award maintenance. a reading of the agreement shows that the husband agreed to pay rs. 50/- per month to the wife towards maintenance. the husband examined as r.w. 1 deposed that he sent the money by money order but the same was refused by his wife. no evidence, however, was produced to prove the said fact excepting his self-serving testimony. the money order receipt is not filed. the wife specifically stated that the husband was not paying her maintenance from june, 1985 onwards and she was doing nursing work getting rs. 50/- which is not sufficient for her. in the absence of any money order receipt, the evidence of the husband seems to be not reliable. if really he sent the money by money order, he ought to have produced the receipt. the evidence of the wife reposes confidence and appears to be true. the trial court rightly held that the husband was not paying her maintenance. further, the unchastity alleged by the husband is also not proved. he made wild allegations against his wife. the non-payment of agreed amount towards maintenance surely amounts to negligence attracting the provisions of section 125, cr.p.c. 8. the next question for consideration is whether ex.p. 3 agreement will come in the way of the court in awarding maintenance. since the husband is held to have neglected to maintain his wife by not paying her the maintenance in terms of the agreement, the wife is certainly entitled to approach the court under section 125, cr.p.c. for the said relief. the learned counsel for the respondent-husband seeks to rely upon the judgment of this court reported in kamatham venkatamma v. kamatham buruju ramanna and another (supra), wherein it was held : 'it is an admitted case of both parties that a gift deed was executed after a panchayat was convened and in that connection and when both parties agreed for that settlement, viz., the husband parting with ac. 150 cents of land, 40 tolas of silverware and separate room for residence. the compromise that has been arrived at by both the parties cannot be said to be a compromise that has been made under section 125, cr.p.c. the compromise arrived at between the parties is outside the purview of the criminal court and it does not form part of the decree that has been passed by any court. if the original order was passed on the basis of a compromise, it can be enhanced under section 127, cr.p.c.' in the aforesaid decision, the wife was given land, silver and a residential room under a gift deed after settlement of disputes. thereafter she claimed enhancement of maintenance. in those circumstances, this court held that when the execution of the gift deed was in pursuance of a compromise, the same cannot be deemed to be one in term of section 125 for being enhanced under section 127, cr.p.c. the facts of that case are thus quite different. 9. the learned counsel for the respondent cited another judgment of the madras high court in krishnappa chettiar v. sivagami achi, : air1953mad549 . in that case, a petition for enhancement of maintenance was filed by the wife. it was held that there was no negligence on the part of the husband in paying the amount as agreed under the agreement involved in that case. in the present case, the husband, though paid the maintenance to the wife up to june, 1985 as per the terms of ex.p. 3, neglected to do so thereafter. hence the facts in the aforesaid decision are not applicable to the facts of the present case. 10. the learned counsel for the petitioner, on the other hand relied upon a decision of this court rendered in cri. revision case nos. 219 and 218/88 dated 31-3-1989, wherein this court held that the agreements involved therein are against public policy and the same are not a bar for the maintainability of the petition for maintenance. in the above cases, this court held that the compromise entered into between the parties was opposed to public policy as it amounts to bartering away the parties rights to claim maintenance which is provided under law and such a compromise was opposed to public policy and it cannot be utilised as defence in a court of law. therefore, the agreements in those cases were held to be not a bar to the petition for claiming maintenance under section 125 cr.p.c. 11. even assuming that ex.p. 3 agreement is not hit by section 23 of the contract act, when once the husband violated the terms thereof, it follows that there was negligence on his part. therefore, i hold that since the husband failed to pay maintenance to the wife, the wife is certainly entitled to approach the court for the relief of maintenance under section 125, cr.p.c. the trial court was right in finding the husband to be negligent in not paying her the maintenance amount as agreed to under ex.p. 3 from june, 1985 onwards and in awarding her maintenance. 12. in view of the above discussion, i hold that non-payment of maintenance as per the it terms of ex.p. 3 agreement amounts to negligence on the part of the husband as contemplated under section 125, cr.p.c. and the wife consequently entitled to seek maintenance under the provisions of the said section. 13. it is next contended by the learned counsel for the respondent that both the wife and husband were living separately with consent after the ex.p. 3 agreement and hence the wife is not entitled for maintenance. it is a fact that once the parties are living separately with consent there is no negligence. but in a case where the parties agree to live separately on condition of payment of maintenance and the condition is violated, the agreement to live separately with consent comes to an end and the bar to claim maintenance will extinguish. 14. it is lastly contended that if as per the terms of the agreement the maintenance amount is not paid, the wife has to go to civil court and cannot seek recourse to proceedings under section 125, cr.p.c. the hindu adoptions and maintenance act provides for a right to claim maintenance to the wife under section 18. the remedy under section 125, cr.p.c. is summary in nature and quicker than the one provided under the act. therefore, the courts below rightly held that merely because the party can approach the civil court, the same is not a bar to claim maintenance under section 125, cr.p.c. but however, if a party approaches the civil court after maintenance is granted under section 125, cr.p.c. and gets the decree for maintenance then the decree of the civil court prevails. therefore, it has to be held that even in the case of negligence in payment of maintenance as per the terms of the agreement between the parties, the wife can claim maintenance under section 125, cr.p.c. even though she has a right to approach the civil court for grant of maintenance. 15. in the result, the order of the revisional court is set aside and that of the trial court is restored. the cri. revision case is accordingly, allowed. 16. revision allowed.

Judgment:
ORDER

1. In this revision filed by the wife, the twin questions that arise are :

(i) Whether the wife is entitled to invoke Section 125, Cr.P.C. for grant of maintenance in a case where the husband fails to pay the monthly agreed amount under an agreement entered into between the parties for their living separately consequent upon certain differences that arose between them; and

(ii) If the agreement entered into between the spouses for their living separately is committed breach of by non-payment of agreed monthly amount to the wife, whether the remedy open is only by way of a suit for specific performance of the agreement.

2. The facts of the case in brief are :

The respondent is the husband of the petitioner herein. Their marriage as per Hindu rites took place on 4-5-1961. After the marriage they lived amicably for some time. Two female children were born to them. Thereafter, differences arose. Both of them agreed to live separately. An agreement (Ex.P. 3) dated 12-10-1971 was entered into between them. Under the agreement, the husband agreed to pay the wife Rs. 50/- per month. The husband paid as that rate up-till 1985 and thereafter did not pay. Therefore, the wife filed M.C. No. 14/87 under Section 125, Cr.P.C. on the file of the Second Additional Munsiff-Magistrate, Tenali, claiming maintenance of Rs. 400/- per month. The husband filed a counter contending that he was paying the maintenance as per the agreement entered into between them and that if there is breach of the agreement the remedy open to the wife is to approach the civil Court by filing a suit and it is not open to her to resort to the proceedings under Section 125, Cr.P.C. It was also contended by the husband in the counter that both of them were living separately with consent and that the wife was unchaste. The wife was working as a coolie and the earnings derived therefrom were sufficient for her, that the daughters were married and that there are no grounds in the petition filed by her for grant of maintenance and it is liable to be dismissed.

3. On behalf of the wife, besides herself examined as P.W. 1, another witness was examined and Exs.P. 1 to P. 6 marked. The respondent examined himself as R.W. 1 and another as R.W. 2. Ex. D1 was marked. The trial Court, having considered the rival contentions of the parties, found that the agreement was entered into between the parties with consent and the agreement is genuine. It also found that the allegation of unchastity of the wife is not proved and the said allegation amounts to legal cruelty. The husband has not proved that he was paying Rs. 50/- per month from 1985 onwards. It also found that the husband neglected the wife and that he was getting a salary of Rs. 2,025/- per month. Accordingly it awarded Rs. 300/- per month.

4. Against that order, the husband preferred a revision. The revisional Court, relying upon a judgment of this Court rendered in Kamatham Venkatamma v. Kamatham Buruju Ramanna, 1989 (2) AP Law Journal 186 : (1989 Cri LJ 2416) held that the proceedings under Section 125, Cr.P.C. cannot be maintained even if there is a breach of the agreement executed between the parties. Accordingly, it set aside the order of the trial Court and allowed the revision. Hence the present revision by the wife.

5. The learned counsel for the petitioner-wife contended that the wife was neglected by her husband as no maintenance, though agreed to, was paid to her and therefore, the proceedings under Section 125, Cr.P.C. are maintainable. The learned counsel for the respondent on the other hand contended that once there is an agreement the wife is not entitled to file a petition under Section 125, Cr.P.C. and that the only remedy available to the wife is to seek specific performance of the agreement.

6. The case of the petitioner is that after the marriage they lived happily for some time, that two daughters were born to them, that thereafter as they were not getting on well, the agreement (Ex.P. 3) was executed between them, under which the husband agreed to pay her maintenance at the rate of Rs. 50/- per month, which he did up to June, 1985 and thereafter did not pay the same.

7. Section 125, Cr.P.C. says that if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, can claim maintenance and on proving that she was neglected and had no means to maintain herself and that her husband had got sufficient means, then the Court will award maintenance. A reading of the agreement shows that the husband agreed to pay Rs. 50/- per month to the wife towards maintenance. The husband examined as R.W. 1 deposed that he sent the money by money order but the same was refused by his wife. No evidence, however, was produced to prove the said fact excepting his self-serving testimony. The money order receipt is not filed. The wife specifically stated that the husband was not paying her maintenance from June, 1985 onwards and she was doing nursing work getting Rs. 50/- which is not sufficient for her. In the absence of any money order receipt, the evidence of the husband seems to be not reliable. If really he sent the money by money order, he ought to have produced the receipt. The evidence of the wife reposes confidence and appears to be true. The trial Court rightly held that the husband was not paying her maintenance. Further, the unchastity alleged by the husband is also not proved. He made wild allegations against his wife. The non-payment of agreed amount towards maintenance surely amounts to negligence attracting the provisions of Section 125, Cr.P.C.

8. The next question for consideration is whether Ex.P. 3 agreement will come in the way of the Court in awarding maintenance. Since the husband is held to have neglected to maintain his wife by not paying her the maintenance in terms of the agreement, the wife is certainly entitled to approach the Court under Section 125, Cr.P.C. for the said relief. The learned counsel for the respondent-husband seeks to rely upon the judgment of this Court reported in Kamatham Venkatamma v. Kamatham Buruju Ramanna and another (supra), wherein it was held :

'It is an admitted case of both parties that a gift deed was executed after a panchayat was convened and in that connection and when both parties agreed for that settlement, viz., the husband parting with Ac. 150 cents of land, 40 tolas of silverware and separate room for residence. The compromise that has been arrived at by both the parties cannot be said to be a compromise that has been made under Section 125, Cr.P.C. The compromise arrived at between the parties is outside the purview of the Criminal Court and it does not form part of the decree that has been passed by any Court. If the original order was passed on the basis of a compromise, it can be enhanced under Section 127, Cr.P.C.'

In the aforesaid decision, the wife was given land, silver and a residential room under a gift deed after settlement of disputes. Thereafter she claimed enhancement of maintenance. In those circumstances, this Court held that when the execution of the gift deed was in pursuance of a compromise, the same cannot be deemed to be one in term of Section 125 for being enhanced under Section 127, Cr.P.C. The facts of that case are thus quite different.

9. The learned counsel for the respondent cited another judgment of the Madras High Court in Krishnappa Chettiar v. Sivagami Achi, : AIR1953Mad549 . In that case, a petition for enhancement of maintenance was filed by the wife. It was held that there was no negligence on the part of the husband in paying the amount as agreed under the agreement involved in that case. In the present case, the husband, though paid the maintenance to the wife up to June, 1985 as per the terms of Ex.P. 3, neglected to do so thereafter. Hence the facts in the aforesaid decision are not applicable to the facts of the present case.

10. The learned counsel for the petitioner, on the other hand relied upon a decision of this Court rendered in Cri. Revision Case Nos. 219 and 218/88 dated 31-3-1989, wherein this Court held that the agreements involved therein are against public policy and the same are not a bar for the maintainability of the petition for maintenance. In the above cases, this Court held that the compromise entered into between the parties was opposed to public policy as it amounts to bartering away the parties rights to claim maintenance which is provided under law and such a compromise was opposed to public policy and it cannot be utilised as defence in a Court of law. Therefore, the agreements in those cases were held to be not a bar to the petition for claiming maintenance under Section 125 Cr.P.C.

11. Even assuming that Ex.P. 3 agreement is not hit by Section 23 of the Contract Act, when once the husband violated the terms thereof, it follows that there was negligence on his part. Therefore, I hold that since the husband failed to pay maintenance to the wife, the wife is certainly entitled to approach the Court for the relief of maintenance under Section 125, Cr.P.C. The trial Court was right in finding the husband to be negligent in not paying her the maintenance amount as agreed to under Ex.P. 3 from June, 1985 onwards and in awarding her maintenance.

12. In view of the above discussion, I hold that non-payment of maintenance as per the it terms of Ex.P. 3 agreement amounts to negligence on the part of the husband as contemplated under Section 125, Cr.P.C. and the wife consequently entitled to seek maintenance under the provisions of the said section.

13. It is next contended by the learned counsel for the respondent that both the wife and husband were living separately with consent after the Ex.P. 3 agreement and hence the wife is not entitled for maintenance. It is a fact that once the parties are living separately with consent there is no negligence. But in a case where the parties agree to live separately on condition of payment of maintenance and the condition is violated, the agreement to live separately with consent comes to an end and the bar to claim maintenance will extinguish.

14. It is lastly contended that if as per the terms of the agreement the maintenance amount is not paid, the wife has to go to Civil Court and cannot seek recourse to proceedings under Section 125, Cr.P.C. The Hindu Adoptions and Maintenance Act provides for a right to claim maintenance to the wife under Section 18. The remedy under Section 125, Cr.P.C. is summary in nature and quicker than the one provided under the Act. Therefore, the courts below rightly held that merely because the party can approach the Civil Court, the same is not a bar to claim maintenance under Section 125, Cr.P.C. But however, if a party approaches the Civil Court after maintenance is granted under Section 125, Cr.P.C. and gets the decree for maintenance then the decree of the Civil Court prevails. Therefore, it has to be held that even in the case of negligence in payment of maintenance as per the terms of the agreement between the parties, the wife can claim maintenance under Section 125, Cr.P.C. even though she has a right to approach the Civil Court for grant of maintenance.

15. In the result, the order of the revisional Court is set aside and that of the trial Court is restored. The Cri. Revision case is accordingly, allowed.

16. Revision allowed.