Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 11800 OF 2013
[Arising out of C.C. No. 1297 of 2012]
Nagendrappa Natikar .. Petitioner
Versus
Neelamma ..
Respondent
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Delay condoned.
2. The question that is raised for consideration in this case is
whether a compromise entered into by husband and wife under
Order XXIII Rule 3 of the Code of Civil Procedure (CPC), agreeing
for a consolidated amount towards permanent alimony, thereby
giving up any future claim for maintenance, accepted by the
Court in a proceeding under Section 125 of the Code of Criminal
Page 2
2
Procedure (CrPC), would preclude the wife from claiming
maintenance in a suit filed under Section 18 of the Hindu
Adoption and Maintenance Act, 1956 (for short “the Act’).
3. The marriage between the petitioner (husband) and
respondent (wife) took place on 24.5.1987. Alleging that the
petitioner is not maintaining his wife, respondent filed an
application under Section 125 CrPC for grant of maintenance
before the 1st Additional JMFC at Gulbarga, being Misc. Case No.
234 of 1992. While the matter was pending, an application was
preferred by the parties under Order XXIII Rule 3 CPC on
3.9.1994 stating that the parties had arrived at a compromise,
by which the respondent had agreed to receive an amount of
Rs.8,000/- towards permanent alimony and that she would not
make any claim for maintenance in future or enhancement of
maintenance. Consent letter dated 30.3.1990, which is in
Kannada, the English translation of the same reads as follow:
“Consent letter:
I, Neelamma W/o Nagendra Natikar, Age 23
years, R/o Old Shahabad, do hereby execute this
consent letter in favour of my husband Nagendra
Natikar with free will and consent without coercion
and misrepresentation. After my marriage with
Nagendra Natikar, I could not lead marital life happy
with my husband due to my ill health as prior to myPage 3
3
marriage I was suffering from backache, Paralysis
stroke to my left hand and left leg and was also
suffering from epilepsy (Fits disease) and therefore I
have myself decided to withdraw from marital life. I
have given my consent for mutual divorce. I have
no objection if my husband would contract second
marriage with someone. Prior to my marriage I was
suffering from chronic disease. I had asked my
father not to celebrate her marriage with anyone.
My father forcibly got marriage with Nagendrappa
Natikar. Henceforth I will not make any further
claims and also forfeit my rights in future and I will
not claim compensation or maintenance or alimony.
I am satisfied with the payment of Rs.8000/- and I
will not make any further claims against my
husband.
I have executed this consent letter in favoaur of
my husband without any force of anybody and free
from misrepresentation or coercion. My father mother or nay other family members have no
objection for executing this consent letter.
Signature of Executant
Neelamma
(Signed in Kannada))
Signature of witnesses:
1. Tippanna (signed in Kannada)
2. Devindrappa (signed in Kannada)
3. Syed Zabiullah Sahab (signed scribe)”
The Court, on the same day, passed the following order:
“Parties both present. Both parties and advocates
files compromise petition. The contents of thePage 4
4
compromise petition is read over and explained to
them. They admit the execution of the same before
court. Respondent paid Rs.8000/- (eight thousand)
before court towards full satisfaction of the
maintenance as per compromise recorded. In view
of the compromise, petition dismissed.”
4. Respondent wife then filed a Misc. Application no. 34 of
2003 under Section 127 Cr.P.C. before the Family Court,
Gulbarga for cancellation of the earlier order and also for
awarding future maintenance, which was resisted by the
petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on
3.9.1994 and hence the application for cancellation of the
earlier order is not maintainable. The Court accepted the plea
of the husband and took the view that since such an order was
still in force and not set aside by a competent Court, it would
not be possible to entertain an application under Section 127
Cr.P.C. The application was, therefore, dismissed on 31.7.2006.
5. We notice, while the application under Section 127 Cr.P.C.
was pending, respondent wife filed O.S. No. 10 of 2005 before
the Family Court, Gulbarga under Section 18 of the Act claiming
maintenance at the rate of Rs.2,000/- per month. The claim wasPage 5
5
resisted by the petitioner husband contending that, in view of
the compromise reached between the parties in Misc. Case No.
234 of 1992 filed under Section 125 CrPC, respondent could not
claim any monthly maintenance and hence the suit filed under
Section 18 of the Act was not maintainable. The question of
maintainability was raised as a preliminary issue. The Family
Court held by its order dated 15.9.2009 that the compromise
entered into between the parties in a proceeding under Section
125 Cr.P.C. would not be bar in entertaining a suit under Section
18 of the Act.
6. The suit was then finally heard on 30.9.2010 and the
Family Court decreed the suit holding that the respondent is
entitled to monthly maintenance of Rs.2,000/- per month from
the defendant husband from the date of the filing of the suit.
7. Aggrieved by the said order, petitioner took up the matter
before the High Court by filing an appeal, being M.F.A. No.
31979 of 2010, which was dismissed by the High Court by its
judgment dated 28.3.2011, against which this SLP has been
preferred.Page 6
6
8. Shri Raja Venkatappa Naik, learned counsel appearing for
the petitioner, husband, submitted that suit filed under Section
18 of the Act is not maintainable, in view of the order dated
3.9.1994, accepting the consent terms and ordering a
consolidated amount towards maintenance under Section 125
Cr.P.C.
9. We are in complete agreement with the reasoning of the
Family Court and confirmed by the High Court that the suit
under Section 18 of the Act is perfectly maintainable, in spite of
the compromise reached between the parties under Order XXIII
Rule 3 C.P.C. and accepted by the Court in its order dated
3.9.1994.
10. Section 125 Cr.P.C. is a piece of social legislation which
provides for a summary and speedy relief by way of
maintenance to a wife who is unable to maintain herself and her
children. Section 125 is not intended to provide for a full and
final determination of the status and personal rights of parties,
which is in the nature of a civil proceeding, though are governed
by the provisions of the Cr.P.C. and the order made underPage 7
7
Section 125 Cr.P.C. is tentative and is subject to final
determination of the rights in a civil court.
11. Section 25 of the Contract Act provides that any
agreement which is opposed to public policy is not enforceable
in a Court of Law and such an agreement is void, since the
object is unlawful. Proceeding under Section 125 Cr.P.C. is
summary in nature and intended to provide a speedy remedy to
the wife and any order passed under Section 125 Cr.P.C. by
compromise or otherwise cannot foreclose the remedy available
to a wife under Section 18(2) of the Act.
12. The above being the legal position, we find no error in the
view taken by the Family Court, which has been affirmed by the
High Court. The Petition is, therefore, dismissed in limine.
…………………………………J.
(K. S. RADHAKRISHNAN)
…………………………………J.
(DIPAK MISRA)
New Delhi,
March 15, 2013
