HIGHCOURT OFCHHATTISGARH. Bll-ASPUR (S.B.: Hon'ble ShriSunil Kumar Sinha, J.) W.P.No.1Si(»5bf2006 V. Prakash Rao Vs. V. Aruna & another ORDER POStforQrder:,2^708/2008 Sd/- SunaKumarSinha Judge ^-i.. HIGH GOURT OF CHHATTISGARH. BILASPUR (Single Bench: Hon'ble Shri Sunil Kumar Sinha. J.) PETItlONER RESPON&ENTS W.P.NO. 1905 Of 2006 V. Prakash Rao, aged about 32 years, Son of Shri V. Akkalu, resideht bf Adarshhagar, ,Camp-1, P.S. Ghhiawani; C.B. 10, Qr. N0. G, Bhilai, District Durg (Chhattisgarh) Versus 1. V. Aruna, aged about 28 years, wife ofY. Prakash Rao, 2. Ishwar Rao, aged 8 years, son 6f V. Prakash Rao, - Respdndent no. 2 being minCir, fhrough his natural guardian rniotherSfflt. V, Aruna? RaOy residenf of Slreet 31, Qr. No. 2/R/Zone 2, Khuj^ipar, Bhilai, P.S. Gt'ihawahi, District Durg (Chhattisgarh) (Petition underArticle2276ftheCon^titutionoflnida) ADOeararice: Shri H.B. Agrawal, Sr. Aavocate with Shri C.K. Sahu, counsel for the petitioner. Shri Uttam Pandey, counsel fbr the respondents. CJRDER r.08.2008) SunilKumarSihha.J. (1) Petitioner/husband hasfiled this petitibn challenging the validity of order dated 10.2.2006 passed by the FirSt Additiohal Principle Judge, Family Court Durgiri M.J.C. No.326/2Q05, whereby his objection raised against the executioh ofan earlier order passeaunder Section 125 of the Code of Criminal Prdcedure(hereinafter referred to as the 'Code') has been dismissed bythe Family Court. •s— W.P.No.1905 of2006 f^S &• (2) In M.J.C. (Crimihal) No. 33/96, the respondents were granted monthly maintenanceof Rs.400/- & Rs.300/-u/s 125 of Cr.P.C.Against the said order the petitioner filed a revision before the Sessions Gourt vide No. 187/98 and the said revision was dismissed 6n 19.9.98. Thereafter, the respondents filed an applicationu/s 127 Gr.P.C. for alteration of amount of maintenance vide M.J.C. No.215/98 on 30.10.98 but the samewas dismissed on 21.3.2005. In the meanwhile, the husband filed a petition for divorce vide Civil Suit No. 52-A/96, which ended in a compromise and a corripromise decreie waspassed in favour ofthe husband oh 22.10.99andthe divorcewasgranted to the husband in terms ofthe compromise andit was also made a part of decree that both the parties shall not make any claim in relation to property. Thereafter, the respondents filed M.J.C. No. 326/2005 claiming arrears of maihtenance as also current maintehance from the petitioner. It is in this case, an objection was raised by the petitioner against the execution that since the claims were abahdoned by both the parties as per the compromise decree passed in Civil Suit No. 52-A/96, therefore, in terms of the compromise, the executionproceedings cannot be continued. The husband raised other grounds also like changeof religion of wife and child and thatoflimitation. The Family Court rejected the objections by impugned order dated 10.2.2006 and directed the petitioner to comply with the order. (3) Shri H.B. Agrawat, learned senior couhsel, argued that oncethe compromise was enteredinto between the parties and a compromiSe decree was passedwhich includes the term that the parties will not make any claim against each other, then this execution proceedings s^'wSSSs' fc"3-s&w», W.P.No. 1905 of2006 f"^. ^- was not mairitainable. He alsoargued that the pbint of limitation was also notconsidered by the FamilyCourt. (4) On the dther hand, Shri Uttam Pandey, learned counsel for the respondents argued that the compromisedecree is silentonthe pointbf maintenance and the respondents had rightly claimed their arrears and current maintenance in the execution proceedings, therefore, the objection was rightly dismissed. (5) I have heard the learhed counsel for the parties at length and have also perused the records ofthe Writ Petition. (6) It is a settled principle thatany defence against ah order passed u/s 125 Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties likewife in y , the presentcase. If an order for maihtenance has been made against the deserter it will operate until vacated or altered in terms of the provisions ofthe Gode itself. Ifthe husband has a case u/s 125 (4), (5) 6r Section 127 of the Codeit is open to him tb initiate appropriate proceedings. But until the original order for maintenariee is modified or cancelled by ahigher court or isvaried dr vacated in terms of Section 125 (4) or (5)0r Section 127, its validity survives.It is ehforceable and no plea thatthere has been cohabitation in the interregnum dr that there has been a Gompromise between the parties can hold goodas a valid defence. {Please see AIR 1979 SC 442 {Bhuwnder SincihVs. DaliitKaurn, (7) Admittedly, in th®present case, the order of maintenance dated 23.3.98 has not beenset aside or varied by any Court under the Code W.P.NO. 1905 of 2006 ^ of Criminal Procedure. Even if we look into the terhns of the decree passed in Civil SuitNo. 52-A/96on 22.10.99 it says hothing about the monthly maintenance of the wife or child. For convenience the terms of the decreeare quoted below: "^I^TOT c^ SIlEfR XR PlMI'i'MI'i 31l5llfi<l Tfff^T ^t uIKftt- 1) S^K^ T?4 Sn^ff^T ^ ^IST §^ n? f^ricp 15-8-90 ^ 'f?|c|1?^E^ ^t fe^t ^t ^tt I 2) ^TO HSWR ^T WET ^ c^ <ft ^tftlT ^RT wf^f ^. TOcT^t^f 1 3) ^SSpR 3PNT 3PNT ^R cipf ^q ci^r q>^f | ^A ^f\ ^EFT siRr. lurar/wr ';?TraTE'Tt?T, ^f (tT.fl.)" (8) It is interesting to note that the objection which has been taken by the husband in the present execution proceedings were never taken by him in M.J.C. filed by the respondents u/s 127 of the Code for alteration of amount of maintenance. That M.J.C.was filed on 30.10.98 and was bi-parte decided on 21.3.2005, whereas the compromise decree was passed on 22.10.99 and the so-called defence was available to the petitioner. Therefore, the first ground raised by Shri Agrawal fails and is rejected. (9) As far asthe ground oflimitationis concerned.learned counsel for the petitioner has not shown that how the execution petition was time barred. Even no such ground has been taken by the petitioner in the objection filed before the Family Court, a copy of which is filed as Annexure-P/7. It only comes in 3 paragraph of the impugried order WJ'.No.l9Q5of2006 that the petitioner argued that the respondents have filed application for arrears afterthe period of4 years. (10) In view of the above, 1 do hot find any illegality in the order passed by the Family Court. The petition has no merit, the same is liable to be dismissedand is accordingly dismissed. However, ifso advised, the petitioner shall be at liberty toraise the ground of limitation byflling an appropriate application and if such an application isfiled, it shall be disposedof by the Family Court in accordance with law. (11) The interim order granted by this Court on 14.2.2008 stands vacated. (12) Nocosts. Sd/- Sunil Kumar Sinha Judge ks-.:..;^^,t--^~:'i-