CrPC | Order Of Maintenance Does Not Get Wiped Out Because Of Settlement During Pendency Of Execution Proceedings: J&K&L High Court

A bench comprising Justice Sanjay Dhar was hearing a plea in terms of which the petitioner had challenged an order passed by Judicial Magistrate in an execution petition filed by the respondents against the petitioner seeking execution of order of maintenance passed by a Magistrate Court in 2015.

The petitioner had challenged the order primarily on the ground that the Magistrate while passing the impugned order had ignored the fact that the petitioner and his wife along with respondents lived together from 06.07.2019 till 12.07.2020 pursuant to the settlement and, as such, during this period, the petitioner was not obliged to pay any maintenance to the respondents.

The petitioner further contended that pursuant to the terms of the settlement, an amount of Rs 3 Lakh had been paid by the petitioner to his wife. A further sum to his wife of Rs.1.00 lac on account of Mehar, the petitioner argued.

The petitioner further contended that once the matter was settled during the execution proceedings, the claim of maintenance of the respondents stood settled and without there being a fresh order of maintenance, the learned Magistrate was not justified in passing the impugned order against the petitioner.

Perusal of the record revealed that the petitioner, who happens to be husband developed a matrimonial discord with his wife. As a consequence of this discord, the respondents, who happen to be the minor children of the petitioner and aforenamed wife. Record also revealed that the wife filed a petition under Section 488 of the Jammu and Kashmir Code of Criminal Procedure which was disposed of on 21.12.2015 with a direction to the petitioner to pay an amount of Rs.9000/ each to the respondents as maintenance.

It was also brought to the notice of the court that during the pendency of the execution petition before the learned trial Magistrate, a compromise was arrived at between the petitioner and mother of the respondents and an agreement in this regard was executed by them. The execution petition, accordingly, came to be dismissed as settled in terms of order dated 18.07.2019 passed by the learned trial Magistrate.

Court also took note of the fact that the settlement could not work, as a result of which respondents again approached the learned trial Magistrate by way of an execution petition and accordingly the impugned order came to be passed by the trial Magistrate in the said execution petition in which a direction was issued to the DDO(Chief Medical Officer, Kupwara) to deduct an amount of Rs.18,000/ on account of monthly maintenance from the salary of the petitioner. Trial court also directed the DDO to deduct a further amount of Rs.30,000/ from the monthly salary of the petitioner on account of arrears of maintenance and it was this order which became the subject matter of challenge before the bench.

Adjudicating upon the matter Justice Dhar observed that it would be apt to make it clear that merely because a settlement has taken place between warring spouses or between the father and the minor children during the pendency of execution proceedings, the order of maintenance passed by a Magistrate under Section 488 of J&K CrPC does not get wiped out if the settlement does not work.

Buttressing the said position of law the bench found it worthwhile to record the observations of supreme court in Mahua Biswas(Smt) vs. Swagata Biswam and anr., (1998) wherein SC observed

"When a settlement has been arrived at in maintenance proceedings, the previous orders of maintenance in such a case could at best be taken to have been suspended but not wiped out altogether. Once settlement fails, the wife's claim to maintenance has to be activated so as to put her in the same position as before"

Dealing with the other contention of the petitioner that he had made a payment payment of Rs.3.00 lacs and Rs.1.00 lac to his wife pursuant to the settlement, the bench observed that the said payment has been made by the petitioner to his wife and not the other respondents who happen to be his minor children.

"So, while settling the claim of maintenance awarded in favour of the minor children, the petitioner cannot take benefit of the amount which he has paid to his wife," the bench underscored.

The fact that the respondents may have resided with the petitioner during the period the settlement was in operation, is immaterial as the order of maintenance remained only suspended and the same was not wiped out but got revived retrospectively after the failure of the settlement, the court concluded while dismissing the petition.

Case Title : Abdul Qayoom Bhat Vs Danish Ul Islam & Ors.

Citation : 2022 LiveLaw (JKL) 94

Click Here To Read/Download Judgment