Criminal Revision No.1693 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: November 20, 2008 Rajesh Kumar .....Petitioner VERSUS Sahil Sawhney & another ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Raman Mahajan, Advocate, for the petitioner. Mr.Y.P.Singla, Advocate, for the respondent. **** RANJIT SINGH, J. Sahil Sawhney, a young minor child of the petitioner, is in the corridors of the court to seek, maintenance from his father. Matrimonial dispute between parents of this young child, has left him to fend for himself in formative years of his life. It should have been a time for him to play but he is in the amidst of a legal bout to make his life and future. Vigorous persuasion by the court with the petitioner (father of the child) to see reason and to maintain his own child in need, would not have any effect on him. Offer made by the Criminal Revision No.1693 of 2007 : 2 : petitioner for the child to come and stay with him got a reply, which was rather touching and moving. Anguished response from the young child perhaps left every one without any answer. Said he, that his parents left him to have their independent life, when he was to be reared and now he can not be ungrateful to his maternal grand parents who brought him up and would rather repay them back instead of looking for greener pasture for himself. This young child, despite being deprived of love and affection of his parents, has inculcated traditions Indian cultural values, would go as tribute to his grand parents. This may be a solace but still would not be a solution to problems of a child whose parents decide to fight and leave their off-springs on to their fate. To get the hang of issues agitated in this revision petition, the facts may need a notice in brief. The petitioner married one Rajni on 3.12.1989. Respondent child was born on 15.4.1991 out of this wedlock. Differences arose between this married couple and it is alleged by the petitioner that his wife Rajni left his house and company. He claims to have made an effort at reconciliation, but remained unsuccessful. Ultimately, they filed a petition for divorce under Section 13-B for dissolution of this marriage on the ground of mutual consent. This marriage, thus, was dissolved on 7.8.1995. Respondent-child at that time was four years and four months old. Rajni, his mother, accepted a sum of Rs.60,000/- as a permanent alimony for settling all the claims of maintenance in future for herself and her child which was to remain with her as per the arrangement. Petitioner claims that he had handed over two drafts of sum of Rs.20,000/- and Rs.40,000/- as permanent alimony for the lady as Criminal Revision No.1693 of 2007 : 3 : well as the respondent-child. He, thus, would plead that he is now left with no responsibility to look after this child. He is rather technical and mechanical in his approach. He refers to the action on the part of Rajni to withdraw application filed by her seeking maintenance under Section 125 Cr.P.C. which was then pending before the Court of CJM, Jagadhri. Rajni has re-married and so too the petitioner. The respondent-child, who is presently staying with his maternal grand- parents, had been forced to seek help of the court to ensure his subsistence and maintenance. Respondent child filed a petition before JMIC, Jagadhri, for his maintenance under Section 125 Cr.P.C. Petitioner (father) impleaded as respondent, filed an application for dismissing this petition pleading that earlier judgment dated 7.8.1995 and order dated 17.2.1997 passed by ACJM, Jagadhri. It may be noticed that petition for maintenance filed by Rajni for herself and for the respondent, Rajesh, was dismissed as satisfied on 17.2.1997 in view of alimony of Rs.60,000/- paid while settling the matrimonial dispute by decree of divorce. The Magistrate has viewed that a payment of Rs.60,000/- which was accepted by mother of the respondent-child would estop the child from filing the present petition by his own act and conduct. Thus, a child, who was four years and four months old when his mother accepted a sum of Rs.60,000/- as permanent alimony, is being attributed a conduct to debar him from seeking maintenance from his natural father. What a father who is seen fighting the prayer of the child tooth and nail and has even dragged this young child to this Court. What a fortune which the petitioner claims to have paid to his wife and child for a life? A sum of Rs.60,000/- is what, the petitioner think would be Criminal Revision No.1693 of 2007 : 4 : enough for this young child to survive for life or at least till he attains his majority. The child was rightly advised to impugn this order passed by insensitive Magistrate and so he filed a revision before Additional Sessions Judge. The Sessions Court rightly appreciated the problematic issue and posed itself an apt question to say if this compromise effected between the parents of this child would be sufficient to deny the statutory right of maintenance under Section 125 Cr.P.C. to the child. Judgments were also referred to by the Court to observe that where the wife has given up her claim for maintenance but later filed an application under section 125 Cr.P.C., she still would have a statuary right of maintenance by her husband, which can not be taken away by pressing into service any agreement, which nullifies her rights. Number of authorities are noticed in this regard, which may be noted here. The same are Bai Tahira Vs. Ali Hussain Fissalli Chothia and another, AIR 1979 Supreme Court 362, Rajesh Kochar Vs. Reeta Kumari, 2002 (4) RCR (Criminal) 395, Sushil Kumar Vs. Neelam, 2004 (2) RCR (Criminal) 760, Des Raj Vs. Sita Devi, 2007 (2) PLR 31 and Nizumal Haq Vs. Phool Begum and others, 2006 (2) RCR (Criminal) 106. Noticing that the previous revision petition was not decided on merit but was withdrawn with mutual consent, the Court observed that the same would not operate as resjudi-cata. The court further observed that this prayer of the petitioner could not have been rejected at the threshold at the preliminary stage and, thus, the action of the Magistrate has resulted in miscarriage of justice. The Criminal Revision No.1693 of 2007 : 5 : Revision Petition was accordingly allowed and the order passed by the Magistrate was set-aside. The matter was remitted back to the Magistrate for fresh decision. This order passed by Additional Sessions Judge should atleast have made the petitioner to relent and wait for decision, specially so when he was defending a morally undefendable cause. The petitioner, however, has continued his fight regardless and has brought his minor son to this Court. Apparently, notice was issued in this case with an aim to see if some solution could still be found. This, to an extent, is reflected in an order dated 6.5.2008, when this Court noticed the contention of the parties that the matter can be patched up in the present proceedings. While adjourning the case, the Court stayed the proceedings before the Magistrate. It is then that efforts were made to find an acceptable solution but the father has remained reluctant to discharge his legal as well as moral liability. What all transpired before this court to an extent has been noticed in the earlier part of this order. Once the father has refused to show any consideration, this petition is being decided on merit. The stand of the petitioner to decline his moral and legal liability would defy any logic. Time and again, it was stressed before this Court that the petitioner has paid a sum of Rs.60,000/- to Rajni, his ex-wife as a full and final payment towards maintenance including that of the respondent-child and as such, he would be under no obligation to pay any maintenance to the child. The petitioner seems to be considering a sum of Rs.60,000/-, which he has paid, to be a fortune. A four and a half years old child and his mother were paid Criminal Revision No.1693 of 2007 : 6 : Rs.60,000/-, which is cited now as a reason to just ignore and leave the child to his fate. It may be that the grand father is looking after the child but would that be a reason for the father to be totally oblivious of his responsibility. He is the one who has brought this child in this world. Can he now ignore his off-spring completely in this manner? Additional Sessions Judge has referred to number of precedents to observe that mother has no right to relinquish the right of maintenance on behalf of her child who was at that time so young and incapable for taking any decision for himself. It has also been observed on the basis of judgment noticed by the Revisional Court that surrender of a right of maintenance by an agreement would be against the spirit of law and opposed to the public policy. In Rajesh Kochar's case (supra), it is held that spirit of Section 125 Cr.P.C. is to prevent destitution or vagrancy of divorced wife. So, any promise or agreement by any of the parties to the marriage would be against this spirit of law and it would also be opposed to the public policy because it would be against the social order and, thus opposed to public policy. In Hanamant Basappa Choudhari @ Bennur Vs. Smt.Laxmawwa and another, 2002 (4) RCR (Criminal) 730, it is held that the wife who has accepted a sum of Rs.9,000/- for herself and her minor child to forego maintenance was an amount which was illusory. Agreement in this case was also said to be opposed to the public policy. In Bai Tahira's case (supra), the Hon'ble Supreme Court held that payment of illusory amounts by way of customary or personal law requirement will be considered in reduction in Criminal Revision No.1693 of 2007 : 7 : maintenance rate but can not annihilate that rate unless it is a reasonable substitute. It is further observed that there must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret otherwise is to stultify the project. It is in this background to be seen that whether a sum of Rs.60,000/- paid in the year 1997 in the instant case for lumpsum maintenance for the wife and the minor child would be illusory having regard to the cost of living and subsistence in the present day scenario. This amount, which is being pressed, as if it is a fortune, would sound certainly illusory. If it is interpreted in any other manner, it would lead to stultifying the scheme of maintenance manifestly recognised under the provisions of Section 125 and 127 of the Code of Criminal Procedure. In Sushil Kumar's case (supra), this Court viewed that a statutory right which is conferred on a person under the public policy can not be waived by mutual agreement. In Des Raj 's case (supra) right to receive maintenance was held to be statutory right of the wife and that this can not be taken away by pressing into service any agreement between the parties, which nullifies the said right. In Nizumal Haq's case (supra), Madhya Pradesh High Court has held that the agreement whereby wife has relinquished the claim of maintenance in respect of children would not override the provisions of Section 125 Cr.P.C and is opposed to public policy. It is further held that the children are entitled to claim maintenance from father and their right to maintenance can not be battered, done away with or negatived. The submissions by counsel for the petitioner to wish away the liability can not be accepted. The observation by the lower Revisional Court that the magistrate has to decide if Criminal Revision No.1693 of 2007 : 8 : sum of Rs.60,000/- was illusory or not is also not a course which will lead to doing justice between the parties in this case. The respondent young child can not be made to suffer more in the corridors of the Courts and his right to receive maintenance need to decided and determined without putting him to any further rigors of procedure. While up-holding the judgment of the Additional Sessions Judge whereby he has set-aside the order passed by the Magistrate, the part of the direction issued by the Court remanding the case back for further trial by Magistrate would call for interference. This Court, while exercising its revisional jurisdiction, would have suo-motu power to do substantial justice between the parties. To bring an end to the agony of this young child, the proceedings need to be brought to an end. He need not to establish his right any further before the Magistrate. Considering the prayer made in the petition and the requirement of respondent-child, I am of the view that sum of Rs.2,500/- be paid as maintenance to the child from the date of application till the date he is entitled to receive the same. The prayers made in the present revision petition are dismissed but with a direction that the petitioner would pay a sum of Rs.2,500/- per month as a maintenance from the date of application filed by the respondent child. The proceedings pending before the Magistrate would stand decided and disposed off in the above terms. November 20, 2008 ( RANJIT SINGH ) khurmi JUDGE