SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dr. V.P. Sharma vs Manu Khanna on 24 May, 2018

Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRR(F) No.69 of 2015 (OM)
Date of Decision: 24.05.2018

Dr. V.P. Sharma
…Petitioner

Versus

Manu Khanna
…Respondent

with

CRR(F) No.70 of 2015 (OM)

Manu Khanna
…Petitioner

Versus

Dr. V.P. Sharma
…Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Argued by: Dr. V.P. Sharma in person.

Dr. Poonam Khanna, mother of Manu Khanna in person.

*****

ANITA CHAUDHRY, J.

These are two revisions assailing the order passed by the

Family Court, Saket, New Delhi in the petition filed under Section 125

Cr.P.C., decided on 27.08.2012.

1 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -2-

Assailing the orders, revisions were filed in the Delhi High

Court, which under the orders of the Supreme Court in Transfer Petition

(Civil) No. 960-963/2014 were transferred to the High Court of Punjab

Haryana, on 05.12.2014. The execution petition which was pending

before the Saket Court was also transferred to the Family Court at

Chandigarh.

It would be necessary to give the facts as presented in the

petition filed under Section 125 Cr.P.C. The petition was filed by the

minor through her mother, the natural guardian seeking maintenance for

the mentally challenged child.

Poonam Khanna claimed that she was married to V.P.

Sharma in 1981. Manu was the only child born to them. Though his

chronological age was 23 years but his mental age was less than 7

years. It was claimed that monthly income of the husband was more

than Rs.50,000/- as he was consulting doctor in various hospitals and

nursing homes. The petitioner had given the names of three nursing

homes. It was claimed that the husband owned a air conditioned car and

he had engaged a driver and he was also owner of the roof of C-18,

Shivalik, New Delhi and the value of the property was more than Rs.35

lacs and the purchaser could construct two floors. It was also pleaded

that the respondent was an income tax payee and he owned 30 bighas of

ancestral land.

The petitioner further claimed that a settlement was

effected on 02.04.2003 and she had taken the responsibility for the child

2 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -3-

and the respondent was breaching the conditions repeatedly. It was

pleaded that the medical expenditure of the child was Rs.1,500/- per

month and she was entitled to maintenance of Rs.25,000/- per month as

she required maintenance for the child, salary of the escort and medical

expenses.

The respondent-husband pleaded that the child was a slow

learner/mentally challenged and he had an IQ of 55 to 60 and his mental

age was 18 years and had passed his 10th examination from CBSC in

1997. He also gave his roll number. It was admitted that Manu was the

only child but it was pleaded that after their divorce he had remarried

and his father had retired and he was under a liability to maintain his

wife and aged parents. It was denied that his monthly income was

Rs.50,000/- per month. It was admitted that he was visiting nursing

homes as a consultant and his monthly income from all sources was

Rs.15,000-20,000/- and the net taxable income in the financial year

2004-2005 was Rs.1,09,924/-. He also enclosed its copy. It was

admitted that he owned a Santro car but stated it was of 2000 model and

not in use. It was denied that he had engaged a driver. It was pleaded

that the property C-18 at Shivalik, New Delhi was purchased out of

joint funds by Poonam and him and possession was with her and she

was enjoying it from the date of settlement and he was living in a flat in

an unauthorized colony. It was submitted that he had given up his share

in the jointly purchased plot and a shop at Malviya Nagar in lieu of

maintenance. He also gave his Permanent Account Number and

3 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -4-

admitted that he was an income tax payee for the last 10 years. It was

denied that he owned any ancestral property. It was pleaded that the

agricultural land was disposed of by his father. It was submitted that the

petitioner had not kept any escort for the child and the child was going

to school independently in a bus and he could go to the market to

purchase articles and no escort was required. It was admitted that the

child had epilepsy but it was denied that he was a patient of nephrotic

syndrome. It was pleaded that a settlement had been arrived at,

according to which petitioner no.2 (wife) had taken the responsibility of

looking after the child. It was denied that he had ever interfered in the

peaceful life of the petitioner or that he had breached any condition. It

was pleaded that there was also an agreement that she would not claim

any maintenance for her or on behalf of the child. It was pleaded that

the right to meet the child had been snatched under the agreement and

he was still complying with it and had not committed any breach till

date and petitioner no.2 after acting upon the settlement was backing

out and was harassing him in order to grab more share in the property

and he had already reduced his share from 50% to 45% in the second

settlement. It was claimed that he had given up his lien over DDA flat

and shop in Malviya Nagar as maintenance.

The petitioner filed rejoinder and took an objection that

there was only one petitioner and she had been wrongly labeled as

petitioner no.2 and the claim filed was only with respect to petitioner

no.1. It was denied that the IQ of the child was between 55 to 60. It

4 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -5-

was pleaded that IQ test was done on the directions of the SDM and it

came out to be 44, therefore, he was mentally challenged with severe to

moderate condition and was under a disability and was entitled to claim

maintenance. It was pleaded that the child had attended a special school

from 1987 to 2000 and had only cleared his 7th class. It was pleaded that

the monthly income of the respondent from all sources was more than

Rs.60,000/-. It was pleaded that the respondent (husband) was a

member of Vasant Vihar Club in Delhi and owner of a flat in Malviya

Nagar, which he had purchased in 2004.

The parties led evidence. Poonam Khanna appeared and

tendered her affidavit and introduced some documents in evidence. No

evidence was led by the respondent.

The Family Court noted that the father was a professionally

qualified consultant and was visiting various nursing homes, therefore,

assessed his income as Rs.45,000/- per month and allowed Rs.10,000/-

per month for the child w.e.f. 15.12.2004.

I have heard both the parties.

Both the parties had placed their written submissions and

referred to judgments and orders passed in various cases instituted by

them.

Some facts need to be delineated, which are not disputed.

Dr. Poonam was married to Dr. V.P. Sharma in 1979. Manu was born in

November 1981. It is not disputed that the child is mentally challenged.

However, there is a dispute with respect to the percentage of disability. It

5 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -6-

is not disputed that a settlement had been effected between the parties.

Proceedings under Section 107/151 Cr.P.C. were initiated and an FIR was

also registered in 2001 in Police Station Malviya Nagar at the instance of

the husband. The wife got a FIR registered under Section 498, 406 IPC in

2002. Civil suits were also filed. Good sense prevailed upon the parties

and a settlement was effected. The proposal for settlement came during

the proceedings, however, one of the parties is said to have backtracked

from the settlement but in March 2003 another settlement was effected,

which was signed by the parties and witnesses.

It is not disputed that Poonam was a Senior Gynecologist in

Delhi. The husband worked as a free lance Anesthetist. The mother had

adopted a daughter after the divorce. It is not in dispute that she shifted to

Panchkula and bought a property. She however failed to disclose her

source of income.

It is necessary now to delineate the settlement and it reads as

under:-

“Whereas, the parties to this Memorandum were husband and
and wife. The parties were married to each other on
18.1.1979 and thereafter have continued to reside together
upto May, 2001.

Whereas, the parties while living together were professionally
qualified as Doctor and from their income and savings from
their profession have purchased immovable property bearing
No. C-18, Shivalik, Malviya Nagar, New Delhi-110017;

Whereas, the parties had been certain misunderstanding as a
result of which the parties have separated and also both the
parties have initiated certain legal proceedings against each

6 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -7-

other. The details of the proceedings are as follows:-

FIR No.49/2001 P.S. Malviya Nagar, U/s. 323,
341, 452, 506 IPC FIR No.422/2002, U/s
498/406 Complaint case U/s. 341, 323, 452, 506,
427, FIR No.299/2002 U/s. 324, case for custody
of child in Guardianship Court, Case U/s. 125
Cr.P.C. for maintenance, Civil Suit No.
249/2002, 250/2002, for property;

Whereas, serious disputes have arisen amongst the
parties hereto with regard to the aforesaid properties
also and in order to avoid any further complication and
with a view to resolve the dispute and differences to
preserve the family honour and dignity the parties have
expressed their willingness to settle the matter
pertaining to the above said immovable-movable
property for all time to come;

And nowhere as, after series of discussions and
negotiations held amongst the parties, all the disputes
and differences have been resolved amicably without
any pressure and voluntarily and a settlement is arrived
at between the parties on the single condition that the
first party will never interfere in the peaceful living of
the second party with her handicap son and will never
claim the custody and meeting rights of a child Manu
on any grounds in future. The first party will never say
that the second party has called the first party to meet
the child Manu. The first party will pay damages to
five lakhs to the second party for raising any issue
which has been settled in the settlement deed again.

7 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -8-

NOW THIS DEED OF SETTLEMENT WITNESSETH
AS UNDER:-

1. That it has been agreed and mutually decided by and
between the parties that the custody of male child Manu
will shall remain with second party. The first party
(Dr.V.P. Sharma) shall never claim the custody of the
said child nor shall ever claim meeting rights of said
child on any grounds. In case the second party decides
for remarriage the custody of the son will be handed
over to the first party.

2. That it has been agreed and mutually decided by and
between the parties that both the parties who own their
respective portion in C-18, Shivalik, New Delhi,
Malviya Nagar, New Delhi 110017, shall procure a
suitable buyer to dispose off their property. All the
proceeds thus received shall be distributed in the ratio
of 45% and 55%. First party will get a share of 45%
and the second party shall get a share of 55% of the
total amount they will receive after selling.

3. That both the parties will move in the matrimonial
Court petition under Section 13-B(2) of HMA for grand
of divorce.

4. That it has agreed and mutually decided between the
parties that after doing the exercise as spelt out in para
no.2 as stated herein above the parties shall withdraw
their respective cases as filed in various courts.

5. That Dr. Poonam will lookafter the son Manu for whole
of the life, she shall never claim any maintenance either
for herself or for the son Manu.

6. That the second party will never claim any jewellery or
any other moveable property Istridhan in future.

8 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -9-

The statement regarding the custody of child and
voluntary surrender of meeting rights will be given by
the first party in the Guardianship Court of Ms. Neena
Bansal Krishna, in the Court of Ms. Pinky MM Patiala
House, and in the Court of ADJ.

That since all the disputes between the parties have been
settled as stated above, neither party shall file or involve
either party in respect of any suit complaint and shall
not claim any right, title or interest in respect of any
property purchased earlier.

This agreement supersedes all the earlier settlement as
made between the parties and this agreement shall be
binding upon the parties.

That this agreement has been executed by the parties or
their own sweet will and without any pressure/coercion
and they have well understood the contents of
settlement.

That it is once again made clear that parties have also
exchanged their respective documents in respect of the
portions, properties etc. falling into their shares with
each other and however any document(s) paper(s) bills,
authorisation of left or lying with any party concerned
will return the same to other party and further in future
if required both the parties shall execute all the requisite
documents, applications, indemnity bond, declarations,
NOC etc. as and when required without hesitation.
In witnesses, whereof, the parties named hereinabove
have set hands on the said Agreement at Delhi on the
presence of the following witnesses.”

9 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -10-

Despite the above written agreement the dispute between

the parties did not come to an end. Cases were filed for custody of the

child, maintenance, partition of the property etc. The matter went up to

the Delhi High Court and the orders passed by the Delhi High Court are

available in CRR-69-2015. The orders subsequently were challenged in

the Supreme Court. In the case decided by the Delhi High Court on

22.11.2013 the Delhi High Court did not permit Poonam Khanna to set

up a new case contrary to the agreement and assert different rights in

respect to the property bearing C-18, Shivalik, New Delhi. It would be

necessary to notice para 31 to 40 of the judgment:-

31. On the basis of the above settlement, the mother of the

Plaintiff and the Defendant filed another divorce petition

(HMA No. 415 of 2003) for divorce by mutual consent under

Section 13 (B) (2) of the Hindu Marriage Act, 1955. Para 7 of

the petition virtually set out the entire terms of the

aforementioned settlement. It was supported by both the

affidavits of the Defendant and Dr. Poonam Khanna.

Thereafter, an order was passed on 3 May 2003 in the
rd

second motion noting that the parties had settled all their

disputes and claims as well as “for permanent alimony as

well as about the custody of the child as detailed in

paragraph No. 6 of the petition.” The Court noted that “the

Petitioner undertake to abide by the terms and conditions as

10 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -11-

settled by them.” Accordingly, the petition was allowed and

the marriage between the parties was dissolved with

immediate effect.

32. Neither the Defendant nor Dr. Poonam Khanna has

questioned the aforementioned judicial order which puts a

judicial stamp on the agreement dated 2nd April 2003. The

contention of Dr. Poonam Khanna that the above settlement

is not binding on the Plaintiff, i.e., son of the parties, cannot

be accepted. Even at the time of entering into the settlement,

Dr. Poonam Khanna was recognized as the guardian of the

Plaintiff. The situation thereafter continues to be what it was

when the settlement was arrived at. The Plaintiff was

represented then and continues to be represented by his

mother, Dr. Poonam Khanna, as the natural guardian. It is

not as if Dr. Poonam Khanna has subsequently discovered

some new fact that she was not aware of when she entered

into the settlement.

33. Subsequent proceedings show that the settlement between

the mother of the Plaintiff and the Defendant was referred to

and relied upon. As already noted by the Court, Dr. Poonam

Khanna subsequently had a change of mind and was not

prepared to abide by the said settlement. By an order dated

13 April 2006, the learned MM dismissed the application
th

filed by the Defendant for dropping the proceedings against

11 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -12-

him under Section 125 CrPC. The learned ASJ passed an

order dated 10th May 2006 upholding the order of the learned

MM. On 26th June 2006, an order was passed by the learned

MM awarding the Plaintiff interim maintenance @ Rs. 5,000

per month. This order was upheld by an order dated 30th

October 2006 by the learned ASJ. On 9th July 2007, the High

Court dismissed the revision petition filed by the Plaintiff

through his mother on the ground that the maintenance fixed

was very low. Aggrieved by the above order, the Plaintiff filed

Crl. M.A. No. 1919 of 2008 before the Supreme Court. The

Supreme Court recorded the statement of the Defendant

herein on 5th December 2008 that he has offered to pay Rs.

7,500 per month to the Plaintiff herein. The Court was of the

view that the said payment will be adequate and appropriate

as interim maintenance.

34. In the entire proceedings there was no attempt made to

restructure the terms of settlement arrived at between the

parties on 2nd April 2003. Thereafter, Crl. M.A. No. 3337 of

2007 was filed by Dr. V.P. Sharma seeking quashing of the

FIR against him. The above petition was entirely based on the

settlement dated 2nd April 2003. In its order dated 23rd

January 2009, the Court noted that acting on the said

settlement, Dr. Poonam Khanna withdrew the maintenance

petition under Section 125 CrPC. Likewise, she withdrew the

petition under Sections 7 and 10 of the Guardian Wards

12 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -13-

Act and admitted her signature in the divorce proceedings

and in the settlement dated 2nd April 2003.

35. The Defendant, in adherence to the compromise deed,

filed an application before the learned MM in FIR No. 299 of

2004 registered in Police Station Malviya Nagar (which was

a complaint against Dr. Poonam Khanna) for an offence

under Section 324 Cr.PC seeking permission to compound the

offence. However, Dr. Poonam Khanna objected to it stating

that the terms and conditions of the compromise have not

been adhered to. She also failed to withdraw her criminal

complaint registered by her against her husband. It appears

that the present suit was also filed on behalf of the Plaintiff by

Dr. Poonam Khanna.

36. It was noticed in para 13 of the order passed by this Court

on 23 January 2009 in Crl.M.C. No. 3337 of 2007, as under:

rd

“13. Thus, it is clear that even after arriving at
an amicable settlement in terms of compromise
deed dated 2nd April 2003, Respondent No. 2 was
not in peace and continued to prosecute the
criminal cases filed by her against the Petitioner,
even civil litigation was also initiated by
Respondent No. 2 against the Petitioner. A Civil
Suit No. 138 of 2008 was filed by Respondent No.
2 after the settlement of 2nd April 2003 and
similar another Civil Suit No. 721 of 2005 was
filed by her for declaration of rights of the
disabled son in the Malviya Nagar residential
property. It is a settled law that once parties
reconcile their disputes and execute a document
containing the terms and conditions of the

13 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -14-

reconciliation which is partly acted upon, a party
cannot withdraw from the compromise and
refuse to perform its part of the obligation
because it would tantamount to misuse of process
of law.”

37. Consequently, the FIRs registered against the Defendant,

i.e., 49 of 2002, 422 of 2002 and 299 of 2002 were quashed

by the Court inter alia for the following reasons:

“18. Under these circumstances, when dispute
was amicably settled, it is in the interest of
justice as well as parties that criminal litigation
inter se them is brought to an end. It would bring
more amicable and peaceful relationship
between the parties which would be far more
beneficial to the interest of the child who is
mentally retarded and needs protection and care
in amicable and peaceful atmosphere.
Respondent No. 2 has already obtained an
injunction order against the Petitioner, thereby
restraining him not to visit within the radius of
100 meters of the property. With an end to all the
litigations inter se the parties, a congenial
platform would be built for the parties to initiate
efforts for sale of the house, sale proceeds of
which are to be divided in the ratio of 45:55
between the Petitioner and Respondent No. 2. In
the backdrop of chequered history of litigation
Respondent No. 2 cannot be allowed to continue
with the cases with a hostile attitude; might be
with a view to grab whole of the property.

19. It is the Petitioner who has been rendered
homeless in this entire litigation even when he
has shown his bona fides in executing his part of
the compromise. Hence, under the circumstances
of this case, where parties have been litigating

14 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -15-

with each other over a long period to the
detriment of the interest of a mentally retarded
child and dispute now seems to be more of
property dispute, it is in the interest of justice to
bring this entire litigation to an end and to
ensure that the relevant clause of the agreement
which has become bone of contention; property
is sold and sale proceeds are distributed as per
respective shares agreed between the parties;
that is computed with, this petition is accordingly
allowed.

20. FIR No. 49 of 2002 registered at Police
Station, Malviya Nagar under Sections
323/341/506 IPC, another FIR No. 422 of 2002
under Sections 498A/406 IPC, complaint case
under Sections 323/341/506 IPC, FIR No. 299 of
2002 and respective proceedings conducted
therein are hereby quashed. Attested copy of the
order be sent to the State as well as the
concerned trial courts accordingly for
information and compliance.”

38. Aggrieved by the above order, Criminal Appeal No. 1625

of 2009 was filed by Dr. Poonam Khanna. On 17 th March

2011, the following order was passed by the Supreme Court:

“1. We have heard the parties appearing in person very
carefully.

2. The primary grievance of the Appellant i.e. wife is
that despite the comprehensive deed of settlement dated
2nd April 2003, the Respondent had continued to pursue
the litigations that were pending and has in fact filed
some additional cases as well. We put it to the
Respondent as to whether he would be filing to
withdraw all the cases which had been initiated by him.

He categorically stated that he would do so but when a

15 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -16-

similar query was put to the Appellant she, at the initial
stage, said that she would not withdraw them but when
told that we were inclined to dismiss the appeal, she
said that she would withdraw the cases that she had
filed but would continue to pursue some of the
applications that had been filed on behalf of the child
and would continue to seek additional maintenance.

3. In the circumstances, we are not inclined to interfere
in this matter. The appeal is dismissed.”

39. Another consequence of the settlement was that an order

dated 29th July 2010 was passed by the learned ASJ allowing

the revision petition by the Defendant and setting aside the

order dated 23rd January 2010 passed by the learned MM

granting interim maintenance of Rs. 5,000 per month.

Crl.M.C. No. 2602 of 2010 was dismissed by the Court on 31st

January 2012. The Court in that process took note of the fact

that the settlement has been arrived at between the parties.

Paras 22 to 25 of the said order read as under:

“22. I note that the Petitioner proposed a settlement
deed in the Court of Smt. R.S. Nag on 27th May 2002
which envisaged that the parties will seek divorce,
Petitioner will not claim any maintenance and
Respondent will forgo, his lien over the DDA flat as
also a shop in property No. N-15, Malviya Nagar, and
property No. C-18, Shivalik, shall be sold off and sale
proceeds shall be divided equally between the parties.

23. Another settlement was executed on 2nd April 2003
which was ultimately registered. The only difference
between vis-a-vis previous settlement was that
Respondent reduced his share in the property C-18,
Shivalik from 50 per cent to 45 per cent. On 3rd May
2003 the divorce obtained by mutual consent in terms

16 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -17-

of settlement dated 2nd April 2003 and Petitioner
withdrew her case in the guardianship court and
petition under Section 125 CrPC on behalf of his son.
The joint petition for mutual consent divorce, statement
on oath as well as final order expressly stipulating that
the Petitioner shall not claim any maintenance through
rest of the life.

24. Thereafter, the Petitioner filed another application
under the Protection of Women from Domestic
Violence Act, 2005 claiming maintenance and same
was dismissed by learned Trial Court as well as
Sessions Court as non-maintenance in the background
of settlement dated 2nd April 2003.

25. It is pertinent to mention here that on the basis of
the settlement dated 2nd March 2003, this Court
quashed four criminal cases in Criminal M.C. No. 3337
of 2007 petition filed under Section 482 CrPC by
Respondent. The Petitioner preferred to challenge the
said judgment in the Supreme Court, whereupon the
Petitioner’s appeal was dismissed.”

40. It is, therefore, seen that the fact of the settlement

having been arrived at between the parties has been

recorded in several judicial orders. The parties have been

bound by the terms of the settlement. The settlement records

the position of the respective parties, and their acceptance of

the factual position that prior to the settlement C-18,

Shivalik was in fact jointly purchased by the parties. This

Court, therefore, cannot permit Dr. Poonam Khanna by

herself or acting as guardian of the Plaintiff, at this stage to

resile from and set up a case contrary to the said agreement

entered into between the parties. (Emphasis is mine)

17 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -18-

While dismissing the suit, the Delhi High Court held that

the plaintiff (Dr. Poonam) had filed the suit without any legal basis and

with a purpose to overcome the settlement deed which was binding

upon the parties and it imposed costs on her. No material is available to

show if this judgment was challenged. A settlement had been effected

and the parties are bound by them and the issue had been decided

against Poonam and it is binding on her.

As per Clause 5 of the settlement, Poonam had agreed to

look-after the child for whole of her life and she had stated that she

would not claim any maintenance neither for herself or for her son for

the rest of her life. There was an agreement as to how the property was

to be divided.

The property admittedly even till now has not been sold.

The father claims that Poonam was not allowing the property to be

given on rent or sold, purposely and she was creating hindrances. Even

despite the divorce and the settlement, there is a visible acrimony

between the parents.

When a query was posed to the mother as to how she was

maintaining herself and her two children, Poonam was evasive and did

not commit that she had stopped practice. She has not filed any

affidavit to assert that she was not working. V.P. Sharma had stated

that he had got married after the divorce and had twins in 2013 and they

were now 4 years old.

18 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -19-

The right of a child to claim maintenance cannot be denied

and it is the responsibility of both the parents where the mother is also

working. The child admittedly is handicapped. The father disputes the

percentage of disability. The father had offered to train the son so that

he could be self sufficient and work on a photostat machine but the

mother did not accept the offer.

The question for decision in this case is whether the mother

subsequent to an agreement with a husband could claim maintenance

for the child when she had settled all claims with the husband. It stands

settled that be it the father or the mother they cannot settle the claim of

minor child/handicap child with respect to his/her maintenance. So far

as claim of maintenance of the child is concerned, the agreement could

not bind the child and he can claim maintenance. However, the

settlement binds the mother.

Mere fact that the child’s mother in the agreement between

herself and her husband had undertaken the responsibility of

maintaining the child would not preclude the child from claiming

maintenance against the father. Reference can be made to

Thulasikumar Vs. Raghavan, AIR 1985 Kerala 20. Similarly, the

Hyderabad High Court in Anjayya Vs. Parutal, 1952 Cri.L.J. 577

concluded that an agreement between the father and the natural mother

of the child cannot be ipso facto binding on the minor child. The

Karnataka High Court in Raja N. Vs. Master Dheeraj 2015(35) RCR

(Criminal) 552 held that the agreement between the parents would not

19 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -20-

bind the minor son. It was held that the child would still claim

maintenance from the parents even if the mother had income. The

obligation of the father would still remain.

In the given facts, the evidence led has to be seen. The

mother had only examined herself and had produced photocopies of

documents which though were exhibited but had not been proved.

Probing questions were put to elicit information from her with respect

to the persons hired as escort for the child but Poonam did not give

way. There is no evidence to show that the mother had kept a

permanent escort for the child. The petitioner (Poonam) wants the Court

to assume higher income because the father was member of a Delhi

Club. The membership was taken years ago, only a single receipt of

payment of Rs.500/- in the year 1989 was tendered which can not be a

basis to assess the income.

No other witness was examined by the mother. The father

did not lead evidence. There is an admission by the father in the written

statement that he had been visiting several clinics and according to him

his income was Rs.20,000/- per month.

Maintenance has been claimed from date of institution of

the petition in 2004. It needs to be noted that the earlier petition for

maintenance had been withdrawn after the settlement in 2003. The

mother in her wisdom took a call to withdraw then because she was

getting something out of the second settlement.

20 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -21-

V.P. Sharma had claimed that his net taxable income in the

financial year 2004-2005 was Rs.1,09,924/-. He had also given his

Permanent Account Number. It was for the mother to summon the

record and prove higher income. No witness was summoned, no

evidence was led to show that the father owned any ancestral property

or had any agricultural income. The argument that the second wife was

earning would not make any difference as her income is not added or

considered. It was claimed that the income of the father was

Rs.50,000/- per month but the petitioner failed to lead evidence to prove

it. At the interim stage, interim maintenance of Rs.5,000/- was allowed.

The interim order was challenged in revision which was dismissed. An

offer was made by father and the interim maintenance was enhanced to

Rs.7,500/- per month in the criminal appeal when it was pending before

the Supreme Court. The income of the father if taken even at

Rs.25,000/- to 30,000/- per month in 2004, the amount allowed

(Rs.10,000/-) by the trial Court is on the higher side. The trial Court in

my opinion made no attempt to analyze the facts and awarded

maintenance taking into consideration that the father alone was to be

the provider. The Court could not have ignored the fact that the mother

was earning. The mother is working. She had not disclosed her income

and what amount she is getting from the properties she had received.

Were they rented out or sold? She has chosen to completely keep silent

on that. She is also under an obligation to contribute as the

responsibility would be jointly on both the parents, therefore, the

21 of 22
09-07-2018 00:58:35 :::
Crl. Revision (F) No. 69 of 2015 (OM)
with
Crl. Revision (F) No. 70 of 2015 (OM) -22-

maintenance of Rs.7,500/- per month would be adequate. Any amount

paid in excess would be adjusted.

The trial Court’s order is modified. The revision filed by

Dr. V.P. Sharma (CRR-(F)-69-2015) is partly allowed. The revision

filed by Manu Khanna(CRR-(F)-70-2015) is dismissed.

(ANITA CHAUDHRY)
JUDGE
24.05.2018
‘Sunil’

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No

22 of 22
09-07-2018 00:58:35 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh