Sri Shibnath Khan vs Smt. Sakuntala Kunti and Another

Joymalya Bagchi, J.—The order dated September 19, 2012 passed by the learned Judicial Magistrate, Second Court at Uluberia, Howrah, in Misc. Case No. 177 of 2012 rejecting the petitioner''s prayer for dropping the proceeding u/s 125 of the Criminal Procedure Code has been assailed in this application. The husband/petitioner has again approached this court after his prayer for dropping the impugned proceeding u/s 125 of the Criminal Procedure Code filed pursuant to the order dated August 13, 2013 passed in C.R.R. 2813 of 2012 was turned down. The petitioner contends that the opposite party has been abusing the provisions of Section 125 of the Criminal Procedure Code in an illegal and harassive manner.

It has been pleaded that the parties had arrived at an amicable settlement with respect to their matrimonial dispute before this court, whereby by order dated December 4, 2009 in C.R.R. 2870 of 2009 all proceedings including the maintenance proceedings u/s 125 of the Code of Criminal Procedure were dropped on payment of a sum of Rs. 3,50,000/- as full and final settlement for all claims of present and future maintenance.

Mr. Tapas Kumar Ghosh, learned advocate appearing in support of this application, has eloquently argued that the provisions of Section 125 of the Criminal Procedure Code cannot be permitted to be misutilised by the opposite party/wife. It is his contention that nothing has been indicated in the petition u/s 125 of the Criminal Procedure Code as to how there has been a substantial change in circumstances, which necessitated her to file the application for maintenance after receipt of the aforesaid sum in full and final settlement of all claims in that regard. He, emphatically, submits that as the settlement had been arrived at and the earlier maintenance proceeding was quashed by this court, the action of the opposite party/wife in instituting the impugned proceeding is also an affront to the order passed by this court in earlier revisional application.

I have considered the submissions of Mr. Ghosh. I find from the impugned order dated September 19, 2012 that the learned Magistrate has declined to grant such prayer on the ground that claim for future maintenance for the child cannot be said to be foreclosed for all times due to amicable settlement arrived at by and between the parents. I am of the view that the claim for maintenance is a continuing liability and any order of maintenance is always subjected to variation u/s 127 of the Criminal Procedure Code on substantial change of circumstances. It is true that the parties had settled the dispute amongst themselves and the opposite party/wife had accepted a sum of Rs. 3.5 lakhs in full and final settlement of all claims for maintenance, present and in future, for herself and the child. However, in the present application she has pleaded as follows:-

That it is unfortunate to the petitioner no. 1 after this agreement this O.P. being father of petitioner no. 2 never kept contact with her minor baby the O.P. never took any news about the present condition of the petitioner''s. That upon massive pressure petitioner no. 1 was compelled to enter into the said agreement but she never things this O.P., would be de-touched from minor female baby forever. That the petitioner fully depend upon the O.P.''s income and from the said amounts Rs. 3.5 Lakhs the petitioner no. 1 only get Rs. 2,800 (Two thousand eight hundred) per month under the (M.I.S.) monthly income scheme which for it is not possible to maintain both from the said M.I.S. amounts. The present market price day to day increase which for it''s not possible to petitioner no. 1 that she will maintain herself and her min or female baby by the aforesaid M.I.S. amounts. Moreover petitioner no. 2 now student of English Medium School under the I.C.S.C. Board. The petitioner is compelled to bear the amount of Rs. 5,000/- per month for her education purpose. The others expenses for her books, tuition fees, doctors treatment, clothing''s, and others would not be properly maintain by the petitioner no. 1 for insufficient income. As a result both the petitioner are passing their days with very poor condition and compelled to begging from their relative circle. Though the opposite party being a Govt. employee and sufficient capacity to maintain his divorcee wife and her minor female child.

From the pleadings, as aforesaid, it appears that the opposite party/wife has indicated escalation of financial liability with regard to the educational needs of the child and other expenses, which necessitated her to make a further claim for maintenance. At this premature stage, in exercise of my inherent powers, I would be hazardous to assess the genuineness of such contention on behalf of the opposite party/wife. Such issues are to be thrashed out on evidence and it would be the duty of the court to adjudicate as to whether such claims for future maintenance is merely to upset the agreement arrived at by and between the parties before this court or a genuine claim due to change of circumstances. However, it cannot be said that as because a settlement was arrived at by and between the parties and monies paid to the opposite party/wife in respect thereof, no further claim for maintenance in future can ever be filed at her behest for herself and for the minor child due to change of circumstances. Coming to such a conclusion would operate against the statutory mandate and would render such agreement between the couple as violative of public policy.

For the aforesaid reasons, I am unwilling to interfere with the order impugned in this application. I, however, make it clear that I have not expressed any opinion as to the genuineness of the claim of the opposite party/wife for maintenance. It would be open to the petitioner to agitate before the learned Magistrate the issues canvassed before me and the learned Magistrate will deal with the same on merits and in accordance with law. With the aforesaid direction, the application is disposed of.