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Minni Chaudhary vs Iqbal Singh @ Iqbal Ahmed on 24 September, 2018

*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 05th July, 2018
Judgment delivered on: 24th September, 2018

+ CRL.REV. P.172/2015 Crl. M.A. 4220/2015 3871/2017
MINNI CHAUDHARY ….. Petitioner

versus

IQBAL SINGH @ IQBAL AHMED ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Medhanshu Tripathi, Mr. Satish Rana, Mr.
Ashiwan Mishra and Mr. A.K. Singh, Advs.

For the Respondent : Mr Sunil Mittal, Sr. Adv. with Mr. Anupam S.
Sharma and Mr. Parkash Aran, Advs.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J.

1. Petitioner impugns order dated 19.01.2015, whereby the family
court has rejected the application filed by the petitioner under Section
125(3) Cr. P.C. and held that she has waived and surrendered her right
to maintenance on permanent footing.

2. It is contended by the petitioner that she got married with
respondent on 31.12.1992 as per Hindu rites and ceremonies. On
joining the matrimonial home, she realized that it was the second
marriage of her husband and the first wife was alive and he had not
yet divorced from her. It is alleged that both the parties embraced
Islam and got married as per the Muslim Law on 02.01.1993. The

Crl.Rev.P.172/2015 Page 1 of 9
Mehar amount fixed for the marriage was Rs. 2 lakhs.

3. It is contended that on 27.06.2001, parties were divorced in
accordance with Muslim Law after declaring Talaq; respondent paid
the Mehar amounts of Rs. 2 lakhs and Rs. 7 lakhs to the petitioner,
which was received by the petitioner in the form of cash at the time of
execution of the Talaqnama.

4. The petition under Section 125 Cr.P.C. was filed by the
petitioner for herself as well as for her daughter. Later, the daughter
by her statement dated 28.05.2014 withdrew her petition on the
ground that she had attained majority and was residing with her
father-the respondent, who was maintaining her well.

5. The family court by order dated 25.03.2013 declined to grant
any maintenance to the petitioner on the ground that she was not the
legally wedded wife of the respondent and that the respondent had
made sufficient provisions for her maintenance at the time of Talaq.
Said order was taken up in Revision by the petitioner and by order
dated 21.07.2014, order of the family court was set aside by holding
that the petitioner was covered under Section 125 Cr. P.C. and the
question as to whether she has already settled her dues with the
respondent was remitted to the family court to be considered and
decided.

6. By impugned order dated 19.01.2015, the family court has held
that the petitioner has duly waived and surrendered her right to

Crl.Rev.P.172/2015 Page 2 of 9
maintenance on permanent footing and accordingly declined to grant
any maintenance to the petitioner.

7. Nikahnama of the parties dated 01.01.1993 records the Mehar
amount as Rs. 2 lakhs. Parties were divorced on 27.06.2001 and deed
of divorce by mutual consent – Talaqnama dated 27.06.2001 and
agreement dated 28.06.2001 was executed between the parties.

8. The terms of deed of divorce dated 27.06.2001, inter-alia, read
as under:

“5. That the party of the Second Part i.e. wife received
in cash the amount of Mehr i.e. Rs. 2,00,000/- and
Rs. 7,00,000/- i.e. for the maintenance of the wife
during the Iddat period as per Muslim Rites and
Customs and she hereby admits the same received
in cash.

6. It is hereby agreed that there is no surviving claim,
dispute or demand between the parties from each
other since both the parties have received their
respective ornaments valuable goods and articles,
Mehr Iddat and the parties of the Second Part
hereby acknowledge the amount so received in
cash.

7. That the right of maintenance, if any, under
Section 125 of the Code of Criminal Procedure of
1974 has been duly waived or surrendered on
permanent footing by the parties under Section
127 (3) (C) of the Code of Criminal Procedure of
1974.”

9. Terms of agreement dated 28.06.2001, inter-alia, read as under:

“3. That second party has already retained with all

Crl.Rev.P.172/2015 Page 3 of 9
her jewellery and personal belongings consisting
of her istridhan. The second party has received,
Vide two Account Payee Cheques numbering
290676 and 290677 drawn on Standard Chartered
Bank, Vasant Vihar, new Delhi cheque dated
01.09.2001, the Mehr amount of Rs. 2,00,000/-
and a sum of Rs. 7,00,000/- as amount for
settlement of all future claims against the first
party with regard to the marriage between the
parties. That this permanent settlement is with
regard to the second party and not for the minor
daughter of the parties.

That a sum of Rs. 6.00 Lacs is being paid in
lumpsum as far as the minor daughter Baby
Divyanshi is concerned, who was born as a result
of a consummation between the parties. The first
party will utilize the said 6.00 Lacs for taking steps
for education, maintenance, and up bringing of the
said child. Although the child will remain in the
custody of the second party but the first party will
be entitled to meet and maintain the child and from
time to time as the biological father of the said
child. The child can be brought by the first party if
required at his home in case of any vacations,
festivals or religious functions.

The child will be brought up in a loving and
congenial atmosphere and both the parties will
take care that their personal conflicts do not
impress upon the child. When the child is of an age
that she can avail the option of selecting her
guardian, she would be free to choose with whom
she wants to live and the manner of life she wants
to adopt.”

10. Sections 127 Cr. P.C. 1973 read as under
“127. Alteration in allowance.

Crl.Rev.P.172/2015 Page 4 of 9

(1) .On proof of a change in the circumstances of any
person, receiving, under section 125 a monthly
allowance, or ordered under the same section to pay a
monthly allowance to his wife, child, father or mother, as
case may be, the Magistrate may make such alteration in
the allowance he thinks fit: Provided that if he increases
the allowance, the monthly rate of five hundred rupees in
the whole shall not be exceeded.

(2) *****

(3) Where any order has been made under section 125
in favour of a woman who has been divorced by, or has
obtained a divorce from, her husband, the Magistrate
shall, if he is satisfied that-

(a) *****
(b) the woman has been divorced by her husband and

that she has received, whether before or after the
date of the said order, the whole of the sum which,
under any customary or personal law applicable to
the parties, was payable on such divorce, cancel
such order,-

(i) in the case where, such sum was paid before
such order, from the date on Which such
order was made,

(ii) in any other case, from the date of expiry of
the period, if any, for which maintenance
has been actually paid by the husband by the
woman;

(c) the woman has obtained a divorce from her
husband and that she had voluntarily surrendered
her rights to maintenance after her divorce, cancel
the order from the date thereof.

(4) *****”

Crl.Rev.P.172/2015 Page 5 of 9

11. As noticed hereinabove, the eligibility of the petitioner to
receive maintenance under Section 125 Cr. P.C. has already been
settled in between the parties in the earlier round of litigation, by
order dated 21.07.2017 in Crl. Rev. P. 308/2013. This Court had held
that the petitioner was covered under the provisions of Section 125
Cr.P.C. to receive maintenance and the matter was remitted to the
family court to ascertain as to whether in the facts of the present case,
she had already settled her dues with her husband.

12. Section 127(3) (b) Cr. P.C. stipulates that where any order has
been made under Section 125 Cr. P.C. in favour of a woman who has
been divorced by, or has obtained a divorce from her husband and that
she has received whether before or after the date of said order the
whole of the sum which under any customary or personal law was
payable under such order cancelling such order under Section 125 Cr.
P.C. and further, Section 127(3) (c) stipulates that where a woman has
obtained a divorce from her husband and she has voluntarily
surrendered her right to maintenance or interim maintenance after her
divorce, the order under Section 125 be cancelled from the date
thereof.

13. In the facts of the present case as noticed above, two
agreements were entered into between the parties; one on 27.06.2001
i.e. deed of divorce by mutual consent/Talaqnama and agreement
dated 28.06.2001 which, inter-alia, record that the petitioner has
received the Mehar amount of Rs. 2 lakhs which was agreed under the

Crl.Rev.P.172/2015 Page 6 of 9
nikahnama and Rs. 7 lakhs at the time of the execution of the
Talaqnama. Parties have specifically agreed that the said amount is
the maintenance amount of the wife during the Iddat period as per
Muslim Rites and Customs and it specifically records that the
petitioner has waived and surrendered, on permanent footing, her right
to maintenance under Section 125 Cr. P.C. in accordance with Section
127(3) Cr. P.C.

14. Petitioner had agreed to accept the sum of Rs. 7 lakhs as
amount for settlement of future claims for herself towards
maintenance. Petitioner specifically waived and surrendered her right
in terms of Section 173 Cr. P.C. on permanent footing to claim
maintenance under Section 127 Cr. P.C.

15. Argument of learned counsel for the petitioner that since
Section 127 Cr. P.C. deals with alteration of allowances granted under
Section 125 Cr. P.C., for an order under Section 127 Cr. P.C. to be
passed, there has to be an order under Section 125 Cr. P.C., does not
have any merit.

16. It would be preposterous to hold that if a wife, on obtaining
divorce has specifically waived her right to maintenance, then the
family court would be entitled to cancel an order passed under section
125 but where no order has been passed under section 125 Cr.P.C.,
then the family court would have to first pass an order under Section
125 Cr. P.C. granting maintenance and then simultaneously in the
next breath pass an order under Section 127 (3) (C) Cr. P.C.

Crl.Rev.P.172/2015 Page 7 of 9

cancelling the order under Section 125 Cr. P.C.

17. Therefore, even in a case where no order has been passed under
Section 125 Cr. P.C., by applying the principles of Section 127(3)(c)
Cr. P.C., family court can decline to pass an order under Section 125
Cr. P.C., if it is shown, as in the present case, that the wife has
obtained divorce and has voluntarily surrendered her right to
maintenance or interim maintenance as the case may be after her
divorce.

18. Judgment of the Supreme Court in Bai Tahira Vs. Ali Hussain
1979 (2) SCR 75, cited by the learned counsel for the petitioner to
contend, that payment of illusory amounts by way of customary or
personal law requirement would be considered in the reduction of
maintenance rate but cannot annihilate that rate, is not applicable in
the facts of the present case. The petitioner has not only received the
Mehar amount, which is the customary and personal law requirement
but has also received an amount of Rs. 7 lakhs towards maintenance
and specifically given up her right under Section 127 (3) (C) Cr. P.C.

19. Judgment in the case of Nagendrappa Natikar Vs. Neelamma
2014 (14) SCC 452 relied on by the learned counsel for the petitioner
is once again not applicable in the present case, in as much as, the
same was in the context of Hindu Adoption Maintenance Act. It has
been held that proceedings under Section 125 Cr. P.C. being summary
in nature and intended to provide a speedy remedy to wife, any order
passed under Section 125 Cr. P.C. by a compromise could not

Crl.Rev.P.172/2015 Page 8 of 9
foreclose the remedy of the wife under Section 18(2) of Hindu
Adoption Maintenance Act. Waiver or surrender of right under
Section 127(3) (c) was not in consideration in the said case.

20. Judgment in the case of Maria Abhishegam Vs. Joyce
Ebeneezer Anr. 2005 Crl. L.J. 4182 (5) of the Karnataka High
Court is also not applicable in the facts of the present case, in as much
as, in the said case wife had surrendered her right to maintenance as
she was gainfully employed and thus the Court held that in view of
the changed circumstances she could maintain a petition under
Section 125 Cr. P.C. Unlike the present case where the petitioner has
received maintenance amount and has specifically waived her rights
under section 127(3) Cr.P.C.

21. I find no infirmity in the view taken by the family court holding
that the petitioner has waived and surrendered her right to
maintenance on permanent basis.

22. In view of the above, I find no merit in the petition. The
petition is accordingly dismissed with no order as to costs.

23. Order Dasti under the signatures of Court Master.

SANJEEV SACHDEVA, J
SEPTEMBER 24, 2018
‘rs’

Crl.Rev.P.172/2015 Page 9 of 9

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