REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 11800 OF 2013
[Arising out of C.C. No. 1297 of 2012]
Nagendrappa Natikar .. Petitioner
Versus
Neelamma .. Respondent
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Delay condoned.
2. The question that is raised for consideration in this case is whether
a compromise entered into by husband and wife under Order XXIII Rule 3 of
the Code of Civil Procedure (CPC), agreeing for a consolidated amount
towards permanent alimony, thereby giving up any future claim for
maintenance, accepted by the Court in a proceeding under Section 125 of the
Code of Criminal Procedure (CrPC), would preclude the wife from claiming
maintenance in a suit filed under Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (for short “the Act’).
3. The marriage between the petitioner (husband) and respondent (wife)
took place on 24.5.1987. Alleging that the petitioner is not maintaining
his wife, respondent filed an application under Section 125 CrPC for grant
of maintenance before the 1st Additional JMFC at Gulbarga, being Misc. Case
No. 234 of 1992. While the matter was pending, an application was
preferred by the parties under Order XXIII Rule 3 CPC on 3.9.1994 stating
that the parties had arrived at a compromise, by which the respondent had
agreed to receive an amount of Rs.8,000/- towards permanent alimony and
that she would not make any claim for maintenance in future or enhancement
of maintenance. Consent letter dated 30.3.1990, which is in Kannada, the
English translation of the same reads as follow:
“Consent letter:
I, Neelamma W/o Nagendra Natikar, Age 23 years, R/o Old
Shahabad, do hereby execute this consent letter in favour of my
husband Nagendra Natikar with free will and consent without coercion
and misrepresentation. After my marriage with Nagendra Natikar, I
could not lead marital life happy with my husband due to my ill
health as prior to my marriage I was suffering from backache,
Paralysis stroke to my left hand and left leg and was also suffering
from epilepsy (Fits disease) and therefore I have myself decided to
withdraw from marital life. I have given my consent for mutual
divorce. I have no objection if my husband would contract second
marriage with someone. Prior to my marriage I was suffering from
chronic disease. I had asked my father not to celebrate her marriage
with anyone. My father forcibly got marriage with Nagendrappa
Natikar. Henceforth I will not make any further claims and also
forfeit my rights in future and I will not claim compensation or
maintenance or alimony. I am satisfied with the payment of Rs.8000/-
and I will not make any further claims against my husband.
I have executed this consent letter in favoaur of my husband
without any force of anybody and free from misrepresentation or
coercion. My father-mother or nay other family members have no
objection for executing this consent letter.
Signature of Executant
Neelamma
(Signed in Kannada))
Signature of witnesses:
1. Tippanna (signed in Kannada)
2. Devindrappa (signed in Kannada)
3. Syed Zabiullah Sahab (signed scribe)”
The Court, on the same day, passed the following order:
“Parties both present. Both parties and advocates files compromise
petition. The contents of the compromise petition is read over and
explained to them. They admit the execution of the same before court.
Respondent paid Rs.8000/- (eight thousand) before court towards full
satisfaction of the maintenance as per compromise recorded. In view
of the compromise, petition dismissed.”
4. Respondent wife then filed a Misc. Application no. 34 of 2003 under
Section 127 Cr.P.C. before the Family Court, Gulbarga for cancellation of
the earlier order and also for awarding future maintenance, which was
resisted by the petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on 3.9.1994 and hence
the application for cancellation of the earlier order is not maintainable.
The Court accepted the plea of the husband and took the view that since
such an order was still in force and not set aside by a competent Court, it
would not be possible to entertain an application under Section 127 Cr.P.C.
The application was, therefore, dismissed on 31.7.2006.
5. We notice, while the application under Section 127 Cr.P.C. was
pending, respondent wife filed O.S. No. 10 of 2005 before the Family Court,
Gulbarga under Section 18 of the Act claiming maintenance at the rate of
Rs.2,000/- per month. The claim was resisted by the petitioner husband
contending that, in view of the compromise reached between the parties in
Misc. Case No. 234 of 1992 filed under Section 125 CrPC, respondent could
not claim any monthly maintenance and hence the suit filed under Section 18
of the Act was not maintainable. The question of maintainability was
raised as a preliminary issue. The Family Court held by its order dated
15.9.2009 that the compromise entered into between the parties in a
proceeding under Section 125 Cr.P.C. would not be bar in entertaining a
suit under Section 18 of the Act.
6. The suit was then finally heard on 30.9.2010 and the Family Court
decreed the suit holding that the respondent is entitled to monthly
maintenance of Rs.2,000/- per month from the defendant husband from the
date of the filing of the suit.
7. Aggrieved by the said order, petitioner took up the matter before the
High Court by filing an appeal, being M.F.A. No. 31979 of 2010, which was
dismissed by the High Court by its judgment dated 28.3.2011, against which
this SLP has been preferred.
8. Shri Raja Venkatappa Naik, learned counsel appearing for the
petitioner, husband, submitted that suit filed under Section 18 of the Act
is not maintainable, in view of the order dated 3.9.1994, accepting the
consent terms and ordering a consolidated amount towards maintenance under
Section 125 Cr.P.C.
9. We are in complete agreement with the reasoning of the Family Court
and confirmed by the High Court that the suit under Section 18 of the Act
is perfectly maintainable, in spite of the compromise reached between the
parties under Order XXIII Rule 3 C.P.C. and accepted by the Court in its
order dated 3.9.1994.
10. Section 125 Cr.P.C. is a piece of social legislation which provides
for a summary and speedy relief by way of maintenance to a wife who is
unable to maintain herself and her children. Section 125 is not intended
to provide for a full and final determination of the status and personal
rights of parties, which is in the nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C. and the order made under Section
125 Cr.P.C. is tentative and is subject to final determination of the
rights in a civil court.
11. Section 25 of the Contract Act provides that any agreement which is
opposed to public policy is not enforceable in a Court of Law and such an
agreement is void, since the object is unlawful. Proceeding under Section
125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to
the wife and any order passed under Section 125 Cr.P.C. by compromise or
otherwise cannot foreclose the remedy available to a wife under Section
18(2) of the Act.
12. The above being the legal position, we find no error in the view
taken by the Family Court, which has been affirmed by the High Court. The
Petition is, therefore, dismissed in limine.
…………………………………J.
(K. S. RADHAKRISHNAN)
…………………………………J.
(DIPAK MISRA)
New Delhi,
March 15, 2013
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 11800 OF 2013
[Arising out of C.C. No. 1297 of 2012]
Nagendrappa Natikar .. Petitioner
Versus
Neelamma .. Respondent
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Delay condoned.
2. The question that is raised for consideration in this case is whether
a compromise entered into by husband and wife under Order XXIII Rule 3 of
the Code of Civil Procedure (CPC), agreeing for a consolidated amount
towards permanent alimony, thereby giving up any future claim for
maintenance, accepted by the Court in a proceeding under Section 125 of the
Code of Criminal Procedure (CrPC), would preclude the wife from claiming
maintenance in a suit filed under Section 18 of the Hindu Adoption and
Maintenance Act, 1956 (for short “the Act’).
3. The marriage between the petitioner (husband) and respondent (wife)
took place on 24.5.1987. Alleging that the petitioner is not maintaining
his wife, respondent filed an application under Section 125 CrPC for grant
of maintenance before the 1st Additional JMFC at Gulbarga, being Misc. Case
No. 234 of 1992. While the matter was pending, an application was
preferred by the parties under Order XXIII Rule 3 CPC on 3.9.1994 stating
that the parties had arrived at a compromise, by which the respondent had
agreed to receive an amount of Rs.8,000/- towards permanent alimony and
that she would not make any claim for maintenance in future or enhancement
of maintenance. Consent letter dated 30.3.1990, which is in Kannada, the
English translation of the same reads as follow:
“Consent letter:
I, Neelamma W/o Nagendra Natikar, Age 23 years, R/o Old
Shahabad, do hereby execute this consent letter in favour of my
husband Nagendra Natikar with free will and consent without coercion
and misrepresentation. After my marriage with Nagendra Natikar, I
could not lead marital life happy with my husband due to my ill
health as prior to my marriage I was suffering from backache,
Paralysis stroke to my left hand and left leg and was also suffering
from epilepsy (Fits disease) and therefore I have myself decided to
withdraw from marital life. I have given my consent for mutual
divorce. I have no objection if my husband would contract second
marriage with someone. Prior to my marriage I was suffering from
chronic disease. I had asked my father not to celebrate her marriage
with anyone. My father forcibly got marriage with Nagendrappa
Natikar. Henceforth I will not make any further claims and also
forfeit my rights in future and I will not claim compensation or
maintenance or alimony. I am satisfied with the payment of Rs.8000/-
and I will not make any further claims against my husband.
I have executed this consent letter in favoaur of my husband
without any force of anybody and free from misrepresentation or
coercion. My father-mother or nay other family members have no
objection for executing this consent letter.
Signature of Executant
Neelamma
(Signed in Kannada))
Signature of witnesses:
1. Tippanna (signed in Kannada)
2. Devindrappa (signed in Kannada)
3. Syed Zabiullah Sahab (signed scribe)”
The Court, on the same day, passed the following order:
“Parties both present. Both parties and advocates files compromise
petition. The contents of the compromise petition is read over and
explained to them. They admit the execution of the same before court.
Respondent paid Rs.8000/- (eight thousand) before court towards full
satisfaction of the maintenance as per compromise recorded. In view
of the compromise, petition dismissed.”
4. Respondent wife then filed a Misc. Application no. 34 of 2003 under
Section 127 Cr.P.C. before the Family Court, Gulbarga for cancellation of
the earlier order and also for awarding future maintenance, which was
resisted by the petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on 3.9.1994 and hence
the application for cancellation of the earlier order is not maintainable.
The Court accepted the plea of the husband and took the view that since
such an order was still in force and not set aside by a competent Court, it
would not be possible to entertain an application under Section 127 Cr.P.C.
The application was, therefore, dismissed on 31.7.2006.
5. We notice, while the application under Section 127 Cr.P.C. was
pending, respondent wife filed O.S. No. 10 of 2005 before the Family Court,
Gulbarga under Section 18 of the Act claiming maintenance at the rate of
Rs.2,000/- per month. The claim was resisted by the petitioner husband
contending that, in view of the compromise reached between the parties in
Misc. Case No. 234 of 1992 filed under Section 125 CrPC, respondent could
not claim any monthly maintenance and hence the suit filed under Section 18
of the Act was not maintainable. The question of maintainability was
raised as a preliminary issue. The Family Court held by its order dated
15.9.2009 that the compromise entered into between the parties in a
proceeding under Section 125 Cr.P.C. would not be bar in entertaining a
suit under Section 18 of the Act.
6. The suit was then finally heard on 30.9.2010 and the Family Court
decreed the suit holding that the respondent is entitled to monthly
maintenance of Rs.2,000/- per month from the defendant husband from the
date of the filing of the suit.
7. Aggrieved by the said order, petitioner took up the matter before the
High Court by filing an appeal, being M.F.A. No. 31979 of 2010, which was
dismissed by the High Court by its judgment dated 28.3.2011, against which
this SLP has been preferred.
8. Shri Raja Venkatappa Naik, learned counsel appearing for the
petitioner, husband, submitted that suit filed under Section 18 of the Act
is not maintainable, in view of the order dated 3.9.1994, accepting the
consent terms and ordering a consolidated amount towards maintenance under
Section 125 Cr.P.C.
9. We are in complete agreement with the reasoning of the Family Court
and confirmed by the High Court that the suit under Section 18 of the Act
is perfectly maintainable, in spite of the compromise reached between the
parties under Order XXIII Rule 3 C.P.C. and accepted by the Court in its
order dated 3.9.1994.
10. Section 125 Cr.P.C. is a piece of social legislation which provides
for a summary and speedy relief by way of maintenance to a wife who is
unable to maintain herself and her children. Section 125 is not intended
to provide for a full and final determination of the status and personal
rights of parties, which is in the nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C. and the order made under Section
125 Cr.P.C. is tentative and is subject to final determination of the
rights in a civil court.
11. Section 25 of the Contract Act provides that any agreement which is
opposed to public policy is not enforceable in a Court of Law and such an
agreement is void, since the object is unlawful. Proceeding under Section
125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to
the wife and any order passed under Section 125 Cr.P.C. by compromise or
otherwise cannot foreclose the remedy available to a wife under Section
18(2) of the Act.
12. The above being the legal position, we find no error in the view
taken by the Family Court, which has been affirmed by the High Court. The
Petition is, therefore, dismissed in limine.
…………………………………J.
(K. S. RADHAKRISHNAN)
…………………………………J.
(DIPAK MISRA)
New Delhi,
March 15, 2013
