IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No.236 of 2008 Subhash Mandal ………. Revisionist Versus Smt. Tripti Mandal ..…. Respondent Dated: December 20, 2011 Hon’ble Servesh Kumar Gupta, J. Heard Mr. S.K. Mandal, Advocate for the revisionist and Mr.M.K. Ray, Advocate for the respondent and perused the entire material available on record. This revision has been directed against the judgment and order dated 4.8.2008 passed by the Judge, Family Court, U.S. Nagar in criminal miscellaneous case no.247 of 2006, titled as Smt. Tripti Mandal Vs. Subhash Mandal, vide which the learned Judge has allowed the petition u/s 125 Cr.P.C. and awarded maintenance to the tune of Rs.1500/- per month to Smt. Tripti Mandal from the date of application, i.e. 15.12.2006. Having heard the learned counsel of both the parties, it transpires that the marriage between the parties was solemnized sometimes in the year 1984 and soon after a couple of months of the wedding, she had to leave her matrimonial house due to insatiable conduct referring the demand of dowry by her in-laws. At the time of her alleged expulsion from her matrimonial house, she was on her family way, so she was blessed with a son at her parents’ home, who was named as Haridas Mandal. Smt. Tripati Mandal filed a miscellaneous case no.24/88 claiming maintenance from her husband u/s 125 Cr.P.C. and the same was awarded to the tune of Rs.400/- per month. But the revisionist Subhash Mandal did not pay even a penny, so the recovery proceedings were commenced by Smt. Tripati Mandal. To avert the coercive recovery, the revisionist entered into a compromise with respondent out of the court, granting a lumpsum amount of Rs.4000/- and in lieu thereof, he also procured an undertaking from the respondent, stating the waiver to recover the amount anymore. It is pertinent to mention here that this undertaking, reduced into writing by the respondent, was out of the court, so no judicial order was ever passed in this regard. Both the parties left in segregation to each other and the revisionist even re-married with another woman. He alleges that the composite grant to the tune of Rs.4,000/- was paid to the respondent, there was also a compromise between the parties, having its effect like a decree of divorce. After a lapse of considerable time, when the respondent was unable to manage her both ends meal, she filed another application u/s 125 Cr.P.C. on 15.12.2006 in the court of Family Judge, which was resisted by way of filing the written statement by the revisionist on 21.4.2007. Both the parties adduced their evidence. The learned Judge, vide the impugned judgment, awarded the maintenance as aforementioned. Feeling disgruntled, the revisionist has come up in this revision u/s 397 r/w Section 401 Cr.P.C. Learned counsel for the revisionist has relied upon a galaxy of precedents of various High Courts and that of the Apex Court. This Court, while adjudicating the revision, is not inclined to burden the judgment with the plethora of precedents relied upon by the revisionist, inasmuch as, the same would unnecessarily make the judgment lengthy. However, the pivot of his arguments is that once the matter was adjudicated u/s 125 Cr.P.C. in miscellaneous case no.24/88, then the second litigation, by way of launching the miscellaneous case no.247/2006 u/s 125 Cr.P.C., should not have been permitted by the court, as the principle of Res judicata, as envisaged u/s 11 of the Code of Civil Procedure, is equally applicable in the criminal proceedings. The ratio of applicability of principle of res judicata has been propounded in the Authorities relied upon by learned counsel for the revisionist. The Hon’ble Apex Court has categorically held the principle of “autre fois acquit and autre fois convict” is applicable in the criminal proceedings, as envisaged u/s 300 of the Code of Criminal Procedure. The ratio, as laid down by the Hon’ble Apex Court and various High Courts, is healthy in its place where the question is to be determined for acquittal or conviction of an accused after a retrial. The proceedings of Section 125 Cr.P.C., which are summary one and semi-civil in nature, cannot be equated with a criminal trial where the adjudication is based upon a strict proof. The next argument, which has been vociferously contended by learned counsel for the revisionist, is that the second proceedings of misc. case no.247/06 were barred by principle of Estoppel, as envisaged u/s 115 of the Indian Evidence Act, 1872, inasmuch as, the respondent Tripti Mandal had waived her right of claiming the maintenance anymore, after having received a cumulative amount of Rs.4,000/- by way of compromise entered into between the parties on 8.12.1989. This argument is also not acceptable, firstly, because the compromise, if any, did not have any legal sanctity, since it was entered outside the court and Subhash Mandal allured Tripti Mandal by way of granting Rs.4,000/-, as a composite grant, in order to save his skin from the recovery proceedings, initiated by the court. Secondly, the right, which has been granted by the Statute to a person, cannot be got waived by way of any agreement and that too which has been arrived at outside the court. Such an agreement, if any, is void ab initio and patently impermissible in the eyes of law. Learned counsel for the revisionist has relied upon a precedent of Hon’ble Apex Court in the case of Krishna Beharilal vs. Gulabchand and others reported in AIR 1971 Supreme Court 1041, wherein it was held that if a person having full knowledge of his rights as a possible reversioner, enters into a compromise which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens. This ratio laid down by the Hon’ble Apex Court in the said precedent in fact is in a different context. It was related to the facts where the property among the Hindu coparceners was distributed on account of the family arrangement. In that case, it was held that if a widow in the family got certain property, and she gave up her claim to other properties of the family, then in that perspective, the Hon’ble Apex Court was of the view that the widow was now estopped to claim and enhance her right over other properties. The context in the instant revision is quite of a different nature and it cannot be placed on parity so that to invoke the principle of Estoppel, as was propounded by Hon’ble Apex Court in the above precedent. Fortiori, while contesting the misc. case no.247/2006, which is a second litigation, claiming maintenance u/s 125 Cr.P.C., revisionist Subhash Mandal filed his written statement but he did not make a single averment with regard to the principle of estoppel. Rather, he contested that petition with full vigour, cross-examined Tripti Mandal and adduced his own evidence pertaining to the ingredients of Section 125 Cr.P.C. Even his counsel argued the matter in the court resisting the grant of maintenance on other grounds. So, in these circumstances, the principle of estoppel and acquiescence ought to be applied against Subhash Mandal rather than against Tripti Mandal. Therewithal, both the parties also agreed upon the issue that no record of misc. case no.24/88 is available in the court below nor any certified copy of the order granting maintenance @Rs.400/- per month is available, either before the court below or with any party. That be the case, this Court does not find any illegality or irregularity if a fresh application, with a heading of Section 125 Cr.P.C., has been entertained by the court of competent jurisdiction, instead of having the title of Section 127 Cr.P.C. The fate would have been the same, notwithstanding the fact whether the application bears the quoting of Section 125 or Section 127 Cr.P.C. , inasmuch as, the matter has been heard afresh after giving full opportunity of hearing. In the above circumstances and that too after giving the full opportunity of filing the written statement, cross- examining Tripti Mandal and adducing his own evidence by Subhash Mandal, what more scope the revisionist might have entertained, while resisting the application u/s 127 Cr.P.C. (if any). Learned counsel has relied upon another precedent of Hon’ble Apex Court in the case of Deb Narayan Halder Vs. Anushree Halder (Smt) reported in 2004 SCC Criminal 164, wherein the Hon’ble Apex Court was of the view that if the wife had left her matrimonial home without any justifiable ground and was residing for 25 years long in segregation, then she was debarred from claiming maintenance u/s 125 Cr.P.C. This precedent has also got no applicability in the facts and circumstances of the case for the reason that there is no evidence before this Court that Smt. Tripti Mandal left the matrimonial house at her own volition. She has alleged that she was forced to leave her matrimonial house even at a stage when she was under conception of four months. Revisionist Subhash Mandal did not initiate any proceeding of restitution of conjugal rights, expressing any will to keep Tripti Mandal with him. Rather, he solemnized another marriage with a new woman without any valid decree of divorce ever granted by any court. So, in these circumstances, this precedent relied upon by learned counsel is not attracted in the instant controversy. Another argument put forth by learned counsel is that the son Haridas Mandal is now a grown up and educated person and he is able to maintain his mother. The Court is at all not inclined to accept this argument for the reason that it is the primary responsibility of the revisionist to maintain the respondent, which he failed to do so and there is nothing wrong, if being constrained to meet the both ends meal, she has filed the petition u/s 125 Cr.P.C. on 15.12.2006. This way, as stated above, the Court feels that the revision is meritless and liable to be dismissed. It is dismissed accordingly. Interim order dated 11.3.2010 granted by this Court is hereby vacated. (Servesh Kumar Gupta, J.) 20.12.2011 Rajeev Dang