# Maheswh Chandra Dwivedi Revisionist v. State of U.P. and another

- **Citation:** (2008) 3 ILRA 695
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-16
- **Case number:** Criminal Revision No. 3228 of 2007
- **Bench:** M.K. Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maheswh-chandra-dwivedi-revisionist-v-state-of-u-p-and-another-41128
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 125Maintenance claimed by wife-divorced
by mutual consent-even after divorce her
status as wife continued till remarriagerejection of claim for enhancement of
maintenance
or
the
ground
of
compromise before family court about
not
claiming
maintenance-held-being
against public policy hit by Section 23 of
Indian Contract Act-illegal-consequential
direction issued.

Held: Para 10

In view of this position, I come to the
conclusion that even if there was any
divorce by mutual agreement and the
husband Mahesh Chandra Dwivedi had
made
lumpsum
payment
to
Smt
Manorama, she was not debarred from
claiming maintenance under Section125
Cr.P.C. In the circumstances, the order
passed under Section 125 Cr.P.C. on
12.4.1994 and the enhancement order
passed on 26.7.1996 can not be said to
be illegal or without jurisdiction. Learned
Judge, family court, who rejected he
application filed by Smt Manorama for
enhancement
was
not
justified
in
rejecting that application on the ground
that parties had compromised in Civil
Suit and Smt Manorama had agreed not
to claim any maintenance in future.
Case law discussed:
(1995) 5 SCC 299, (2000) 3 SCC 180, (1987) 2
Hindu LR 334 (Kerala High Court), 2004,
Crl.L.J., 3690, (Punjab & Haryana High Court).

## Text

3 All] Mahesh Chandra Dwivedi V. State of U.P. and another
695
if it should be held possible to interfere
with those statutory rights by an exercise
of the inherent jurisdiction of the Court.
The functions of the judiciary and the
police
are
complementary
not
overlapping and the combination of
individual liberty with a due observance
of law and order is only to be obtained by
leaving each to exercise its own function,
always, of course, subject to the right of
the Court to intervene in an appropriate
case when moved under S.491, Criminal
P.C., to give directions in the nature of
habeas corpus. In such a case as the
present, however, the Court's functions
begin when a charge is preferred before it
and not until then."

13. For the reasons above, we don't
find any merit in this writ petition as the
reliefs prayed for can not be allowed and
hence we dismiss the writ petition as
merit less.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.07.2008

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Revision No. 3228 of 2007

Maheswh Chandra Dwivedi ...Revisionist
Versus
State of U.P. and another ...Respondents

Counsel for the Revisionist:
Sri. K.M. Asthana

Counsel for the Revisionist:
Sri. Bal Mukund
Smt. Arti Singh
A.G.A.

Code of Criminal Procedure-Section 125Maintenance claimed by wife-divorced
by mutual consent-even after divorce her
status as wife continued till remarriagerejection of claim for enhancement of
maintenance
or
the
ground
of
compromise before family court about
not
claiming
maintenance-held-being
against public policy hit by Section 23 of
Indian Contract Act-illegal-consequential
direction issued.

Held: Para 10

In view of this position, I come to the
conclusion that even if there was any
divorce by mutual agreement and the
husband Mahesh Chandra Dwivedi had
made
lumpsum
payment
to
Smt
Manorama, she was not debarred from
claiming maintenance under Section125
Cr.P.C. In the circumstances, the order
passed under Section 125 Cr.P.C. on
12.4.1994 and the enhancement order
passed on 26.7.1996 can not be said to
be illegal or without jurisdiction. Learned
Judge, family court, who rejected he
application filed by Smt Manorama for
enhancement
was
not
justified
in
rejecting that application on the ground
that parties had compromised in Civil
Suit and Smt Manorama had agreed not
to claim any maintenance in future.
Case law discussed:
(1995) 5 SCC 299, (2000) 3 SCC 180, (1987) 2
Hindu LR 334 (Kerala High Court), 2004,
Crl.L.J., 3690, (Punjab & Haryana High Court).

(Delivered by Hon'ble M.K.Mittal, J.)

1. Criminal Revision No. 1145 of
2005 has been filed by Smt. Manorama
for setting aside the order dated 18.1.2005
passed by Principal Judge, Family Court,
Kanpur Nagar, in Misc. Case No. 33 of
2002 whereby he rejected the application
filed by Smt. Manorama under Section
127 Cr.P.C. for enhancement of the
maintenance
amount
awarded
under
Section 125 Cr.P.C. by order dated
12.4.1994 @ Rs.200/-per month and
earlier enhanced to Rs.300/- by order
696 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
dated 26.7.1996 under Section 127
Cr.P.C. Criminal Revision No. 3228 of
2007 has been filed by Mahesh Chandra
Dwivedi for setting aside the order dated
19.7.2007 passed by Principal Judge,
Family Court, Kanpur in Misc. Case No.
35 of 2006 whereby he rejected the
application filed by husband Mahesh
Chandra Dwivedi against Smt. Manorama
under Section 127 Cr.P.C. for cancelling
the order dated 26.7.1996 whereby the
maintenance amount was enhanced from
Rs.200/- to Rs.300/- per month under
Section 127 Cr.P.C. Since these two
revisions arise between the same parties
and the facts are common they have been
heard together and are being decided by
one order.

2. I have heard Sri Bal Mukund,
learned counsel for Smt. Manorama, Sri
K.M.
Asthana.
learned
counsel
for
Mahesh
Chandra
Dwivedi,
learned
A.G.A. and perused the material on
record.

3. Brief facts of the case are that
Smt. Manorama filed an application under
Section 125 Cr.P.C. for maintenance and
the same was allowed by order dated
12.4.1994 and maintenance was awarded
@ Rs.200/- per month. Later on Smt.
Manorma
filed
an
application
for
enhancement of the maintenance amount
under Section 127 CR.P.C. and by order
dated 26.7.1996 same was enhanced to
Rs.300 per month. Again Smt. Manorama
filed an application for enhancement
under Section 127 Cr.P.C. as cost of
living had increased and it had become
difficult for her to maintain herself.
According
to
Smt.
Manorama
her
husband Mahesh Chandra Dwivedi a
Class IV employee in a college, was
getting Rs.6000/- per month as salary and
was also earning from private tuition and
had agricultural income and she prayed
that amount be enhanced to Rs.1000/- per
month. In reply Mahesh Chandra Dwivedi
pleaded that it was wrong to say that Smt.
Manorama was not able to maintain
herself because of poverty. She is living
with her father and he has no son and also
has agricultural land as well as works in a
private job. Smt. Manorama was also
working in a private company and had
good
financial
condition.
Mahesh
Chandra Dwivedi also pleaded that he
was hardly getting Rs.4600/- per month
and had to maintain his wife, children and
aged mother. He also pleaded that in
original suit no. 97 of 1989, Mahesh
Candra Dwivedi Vs. Smt. Manoram,
parties had entered into a compromise in
the Court of Civil Judge, which was
accepted and the suit for divorce was
decreed. It was also agreed that they
would have no concern with each other
and at that time he had also paid
Rs.10,000/- as maintenance allowance in
lumpsum and Smt. Manorama had agreed
that she would never file any claim in
future regarding maintenance. In that
matter learned Judge, Family Court held
that there was a compromise between the
parties
and
the
application
for
enhancement was filed against the terms
and conditions of the compromise and
therefore he rejected the application under
Section 127 Cr.P.C.

4. Mahesh Chandra Dwivedi filed an
application under Section 127 Cr.P.C. on
6.3.2006 and prayed that on the basis of
the compromise decree passed in the
Original Suit No. 97 of 1989 recovery
warrant issued against him as well as the
enhancement order dated 26.07.1996
passed in Case No. 64 of 1996 be
cancelled. He contended that the parties
3 All] Mahesh Chandra Dwivedi V. State of U.P. and another
697
had agreed in the divorce case and that
was decided on the basis of mutual
consent and Smt. Manorama had taken
Rs.10,000/-
as
final
payment
for
maintenance and was not entitled to claim
any thing in future. He has also contended
that in petition under Section 125 Cr.P.C.
an order was passed on 12.4.1994 and an
amount
of
Rs.200
was
fixed
for
maintenance and due to his ignorance he
started making payment of that amount
and also paid the enhanced amount till
2005 whereas Smt. Manorama has good
financial condition. Smt. Manorama filed
objection in this case and contended that
the application under Section 125 Cr.P.C.
was decided on merits and the order
enhancing the amount was also justified.
There was no ground to cancel the earlier
order and also there was no ground to
cancel the recovery warrant. It had also
been contended that the compromise
entered in the divorce proceedings did not
effect the proceedings under Section 125
Cr.P.C.

5. Learned Judge, Family Court by
order dated 19.7.2007 held that earlier it
was held in the case between the parties
that the right under Section 125 Cr.P.C.
would not be curtailed on the basis of the
compromise entered into between the
parties and that the order passed under
Section 125 Cr.P.C. and the order dated
26.7.1996 under Section 127 Cr.P.C. had
become final as the same were not
challenged.
Therefore
learned
Judge
rejected the application filed by Mahesh
Chandra Dwivedi, under Section 127
Cr.P.C.

6. Feeling aggrieved the revisions
have been filed by both the parties. The
main question involved in these revisions
is whether the wife is entitled to claim
maintenance under Section 125 Cr.P.C.
even after the compromise decree has
been passed between them wherein the
wife accepts the lump sum amount for her
maintenance and agrees not to file any
claim for maintenance in future.

7. Learned counsel for Mahesh
Chandra Dwivedi has contended that the
compromise was based on mutual consent
and therefore in view of Section 125 (4)
Cr.P.C. Smt. Manorama is not entitled for
any
maintenance
or
enhanced
maintenance under Section 125 Cr.P.C. or
127 Cr.P.C . As against it learned counsel
for Smt. Manorama has contended that
the provisions of Section 125 Cr.P.C. are
independent of divorce proceedings and
the words "living separately by mutual
consent" do not cover divorce or
settlement for maintenance in divorce
case by mutual consent.

Section 125 (4) Cr.P.C. reads as
under:-

"No wife shall be entitled to receive
an allowance for the maintenance or the
interim maintenance and expenses of
proceedings as the case may be from her
husband under this Section if she is living
in adultery, or if, without any sufficient
reason, she refuses to live with her
husband, or if they are living separately
by mutual consent."

8. In the case of Vanamala Vs.
H.M. Ranganatha Bhatta (1995) 5 SCC
299, it has been held by Hon'ble Apex
Court that a wife who obtains divorce by
mutual
consent
cannot
be
denied
maintenance by virtue of Section 125(4)
of the Code. If the marriage between the
parties is terminated by a decree of
consent divorce, that would not amount to
698 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
live separately by mutual consent. In the
case of Rohtash Singh Vs. Ramendri
(Smt), (2000) 3 SCC 180, Hon'ble Apex
Court has held that on account of
explanation (b) to Sub section 1 of
Section 125 of the Code, a woman, who
has been divorced by her husband on
account of a decree passed by the Family
Court under the Hindu Marriage Act,
continues to enjoy the status of a wife for
the
limited
purpose
of
claiming
maintenance allowance from her exhusband. The claim of maintenance under
Section 125 of the Code by a divorced
wife is based on the foundation provided
under explanation (b) to Sub Section 1 of
Section 125 of the Code. If the divorced
wife is unable to maintain herself, and if
she has not re-married, she will be entitled
to claim maintenance allowance. A
woman after divorce becomes a destitute.
If she is not able to maintain herself and
remains unmarried, the man who was
once her husband continues to be under a
statutory duty and obligation to provide
maintenance to her. Therefore I am of the
view that even if compromise decree has
been passed between the parties, it is not
effected by Section 125 (4) of the Code
and Smt. Manorama is entitled to claim
maintenance
from
Mahesh
Chandra
Dwivedi till she re-marries and is unable
to maintain herself.

9. Now it has to be seen whether
Smt. Manorama is debarred or stopped
from claiming the said maintenance on
the plea that at the time of granting of
divorce decree by mutual consent she had
agreed not to claim maintenance from the
petitioner in future. Right to claim
maintenance by the wife, children and the
old parents who are not capable to
maintain themselves has been provided
under Section 125 of the Code as public
policy by the State. Definition of wife has
also been given extended meaning by the
Statute in order to provide the security in
life to a wife whose marriage has been
dissolved by a decree of divorce and who
being destitute is unable to maintain
herself. This is matter of public policy and
not
of
an
individual.
In
such
circumstances, the statutory right which
has been conferred on a person under
public policy cannot be waived by the
said person by mutual agreement. It is
also well settled that any contract which is
opposed to public policy is void under
Section 23 of the Indian Contract Act
1872, and the same cannot be enforced in
a Court of Law. If the object or
consideration of an agreement would
defeat the provisions of any law, and if it
is against the public policy, the agreement
will be treated as unlawful and void. In a
similar situation in the case of Sadasivan
Pillai Vs. Vijayalakshmi, (1987) 2
Hindu LR 334 (Kerala High Court),
and Sushil Kumar Vs. Neelam 2004,
Crl. L. J., 3690, (Punjab & Haryana
High Court) it has been held that inspite
of any such agreement wife could not be
debarred from claiming maintenance
under Section 125 Cr.P.C.

10. In view of this position, I come
to the conclusion that even if there was
any divorce by mutual agreement and the
husband Mahesh Chandra Dwivedi had
made
lumpsum
payment
to
Smt.
Manorama, she was not debarred from
claiming maintenance under Section125
Cr.P.C. In the circumstances, the order
passed under Section 125 Cr.P.C. on
12.4.1994 and the enhancement order
passed on 26.7.1996 can not be said to be
illegal or without jurisdiction. Learned
Judge, family court, who rejected he
application filed by Smt. Manorama for
3 All] National Insurance Co. Ltd. V. Riyasat Ali and others
699
enhancement was not justified in rejecting
that application on the ground that parties
had compromised in Civil Suit and Smt.
Manorama had agreed not to claim any
maintenance in future. Therefore the
impugned order dated 18.1.2005 is to be
set aside and the Criminal Revision No.
1145 of 2005 is to be allowed. The Judge,
family court has rightly rejected the
application filed by Mahesh Chandra
Dwivedi under Section 127 Cr.P.C. and
the Criminal Revision No. 3228 of 2007
being devoid of merits is liable to be
dismissed.

11. Criminal Revision No. 1145 of
2005 is hereby allowed. Order dated
18.1.2005 is set aside and the case is
remanded to learned Trial Judge, Family
Court, Kanpur Nagar, who shall decide
the application under Section 127 Cr.P.C.
for
enhancement
of
maintenance
allowance on merits. Parties are directed
to appear in the Trial Court for further
orders on 11.8.2008.

12. Criminal Revision No. 3228 of
2007 is hereby dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE A.P. SAHI, J.

First Appeal From Order No. 1791 of 2008

National Insurance Company Ltd.

...Appellant
Versus
Riyasat Ali and others ...Respondents

Counsel for the Appellant:
Sri. K.S. Amist

Counsel for the Respondents:
Sri. Nigamendra Shukla

Motor vehicle Act 1988- Rule2(44)-
Tractor for agricultural purpose-accident
caused due to hit by train-Tribunal fixed
joint
liability-appeal
by
insurance
company-disputing the use of tractor for
purpose other than agriculture-total non
consideration
of
this
aspect-case
remitted back for fresh consideration.

Held: Para 8

Hence in totality, we dispose of the
appeal at the stage of admission without
imposing any costs giving liberty to the
appellant to make an application before
the Tribunal which would be heard upon
notice and giving opportunity of hearing
to
all
the
parties
but
under
no
circumstances
the
payment
of
compensation to the claimants should be
stalled

(Delivered by Hon'ble Amitava Lala, J.)

1. This appeal is arising out of a
judgment and order passed by the
concerned
Motor
Accident
Claims
Tribunal, Bulandshahar, dated 20.2.2008
in M.A.C. No. 152 of 2000. Two persons
died and one injured when the Tractor
was hit by a Train on the way. It has been
contended
by
the
learned
counsel
appearing for the insurance Company
here as well as in the court below that the
Tractor is meant for agricultural purpose
but when it was carrying some household
material like cement and sands etc. for the
construction of the house, it has been
proceeded
in
contravention
of
the
insurance Policy for which either the
owner has to pay the compensation or the
insurance Company will pay with the
right of recovery of the same from the
owner. The claimants are represented by
Sri Nigamendra Shukla, the learned