Reji Baby v. Subi Mary and Esha Mariyam Reji and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **Crl.MC.No. 8568 of 2017** **AGAINST THE ORDER/JUDGMENT IN MC 23/2017 of JMFC, KALAMASSERY (TEMPORARY)** ## **PETITIONER/S:** **REJI BABY, AGED 55 YEARS, S/O.LATE P.K.BABY, PATHIYIL PUTHENPEEDIKAYIL HOUSE, KURAMPALA EAST P.O., PANDALAM, PATHANAMTHITTA DISTRICT, PIN-689646.** **BY ADVS. SRI.D.KISHORE SMT.MEERA GOPINATH SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)** ## **RESPONDENT/S:** |**1**|**MRS.SUBI MARY,**| |---|---| ||**AGED 45 YEARS, D/O.KURUVILA MATHEW, RESIDING AT FLAT**| ||**NO.301, DREAM FLOWER VELVETTUDE, KOONAMTHAI, EDAPPALLY,**| ||**KOCHI-682024.**| |**2**|**ESHA MARIYAM REJI**| ||**AGED 20 YEARS, D/O.RAJI BABY, RESIDING AT FLAT NO.301,**| ||**DREAM FLOWER VELVETTUDE,KOONAMTHAI, EDAPPALLY, KOCHI-**| ||**682024.**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,**| ||**ERNAKULAM-682031.**| ||**BY ADVS.**| ||**SRI.GEORGE BRISTON**| ||**SRI.PREMCHAND R.NAIR**| ||**SRI.SUNIL PAUL**| Crl.M.C.No.8568/2017 2 ## **OTHER PRESENT:** ## **RAMESH CHAND PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 8/8/2018, THE COURT ON 26/10/2018 PASSED THE FOLLOWING:** ## **O R D E R** The petitioner is the sole respondent in MC No.23/2017 of JFMC, Kalamassery, filed under section 12 of the Protection of Women From Domestic Violence Act 2005(“DV Act” for brevity). 2. The petitioner herein married the first respondent on 31/12/1990. The second respondent daughter was born in the matrimonial relationship. Matrimonial relationship got strained leading to the filing of Annexure-1 O.P. No.259/2015 before the Family Court, Ernakulam seeking divorce. The matter was settled in mediation, evidenced by Annexure-2 report of the mediator. As per the terms of settlement, parties agreed to file an application for divorce on mutual consent. Annexure -3 is the copy of O.P.No.1418/2016 filed seeking divorce on mutual consent. Annexure-4 is an agreement stated to be entered into between the petitioner and the first respondent settling all the claims and liabilities between the parties on 23/7/2016. Annexure-5 is a copy of an affidavit executed by the first respondent filed along with Annexure-3 divorce petition. Annexure-6 is the affidavit affirmed by the Crl.M.C.No.8568/2017 3 petitioner herein reiterating the settlement of all claims and liabilities. By Annexure 7 judgment and Annexure 8 decree, divorce was granted by the Family Court, Ernakulam. 3. According to the petitioner herein, in the light of Annexures 3 to 6 documents, all the claims pending between the parties were amicably and mutually settled and no claim survives. Respondents herein were also not entitled to claim any maintenance, since on adequately compensating the respondents, relationship was brought to an end. According to the petitioner herein, notwithstanding the mutual agreement entered into between the parties and the settlement of all monetary claims evidenced by the above documents, respondents 1 and 2 filed MC No.23/2017 before the Magistrate seeking monthly maintenance, monthly house rent expenses, past maintenance, compensation for harassment, compensation for abuses committed against her and litigation expenses. According to the petitioner herein, it was intended to harass the petitioner and was an abuse of the process of law. It was further contended that, the second respondent was aged 20 years and was not a child as contemplated under the DV Act. Consequently, she was not entitled for any maintenance. Hence, learned counsel for the petitioner sought to quash the proceedings to meet the ends of justice invoking section 482 Cr.PC. 4. One of the contention set up by the learned counsel for the petitioner was that, a divorced woman was not entitled to seek any relief Crl.M.C.No.8568/2017 4 under the DV Act. To substantiate it, learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court in **Inderjit Singh Grewal v. State of Punjab and Another(2011 KHC 4730)** , wherein the court held that, in a case wherein all the matters were settled and divorce obtained by mutual consent, an application filed by the wife seeking relief under the Domestic Violence Act contending that the decree for divorce was obtained by playing fraud was not maintainable. It was held that, unless decree of divorce is declared null and void by a competent court, the petition of the wife under the Domestic Violence Act cannot be entertained. It was further held therein that, when divorce was granted by mutual consent by a court of competent jurisdiction to which wife was a party, that cannot be challenged in a collateral proceedings. **In Santosh Kumar v. State of Bihar and Others (2017 Legal Eagle 470)** , the precise question that came up before the Patna High Court was whether an ex-wife can file a complaint under the DV Act, when the relationship has come to an end with a decree of divorce. Petitioner therein, to buttress his arguments that once the domestic relationship came to an end after decree of divorce, a complaint under the DV Act could not have been filed, placed reliance on the decision of the Punjab and Haryana High Court **in Amit Agarwal and Ors. v. Sanjay Aggarwal(III (2016) DMC 97 (P & H)** as well as the decision in Inderjit Singh Grewal(cited supra). The court held that in the definition of “wife” in section 2(a) and 2 (f) of the DV Act, expressions Crl.M.C.No.8568/2017 5 were used in the present tense and consequently the wordings give an indication that **i** n case of ex- wife, she was not entitled to any relief under the DV Act **.** 5. Identical view was taken by a single Judge of this court in an unreported decision in **Crl.R.P.No.1881/2012** in **Sulaiman Kunju, v. Nabeesa Beevi and others,** wherein this court held that in the absence of existence of domestic relationship between the divorced wife and her former respondent, the divorced wife would not come under the definition of aggrieved person. Consequently, it was held that after divorce, wife cannot claim right under the marriage except the right to claim maintenance under Section 125 Cr.P.C. 6. However, the Hon'ble Supreme Court in **Juveria Abdul Majid Patni v. Atif Iqbal Mansoori & Anr.(2014 Legal Eagle 704),** had considered this question elaborately **.** It was held that an act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled to under the DV Act, including the reliefs under sections 20, 21,22 and section 23 of the Act. This court in **Bipin v. Meera D.S.and others (2016 (5) KHC 367)** , relying on Juveria 's case (supra) had held that a divorced wife is entitled to initiate proceedings under the provisions of the DV Act and any act of violence which has a rational nexus to the past matrimonial relationship, or which arises therefrom or as a sequel to that Crl.M.C.No.8568/2017 6 relationship, should conceptually fall within the provisions of the Domestic Violence Act. 7. The above decisions clearly show that, a divorced wife is entitled to sustain a claim in relation to the domestic violence that arose during the subsistence of the matrimonial relationship, or a claim which has a rational nexus to the past matrimonial relationship or which arises therefrom or as a sequel to that relationship. 8. Settlement between the parties was arrived on 20/7/2016 through mediation, pending Annexure -I divorce petition filed by the first respondent. Pursuant to settlement, Annexure III joint petition for divorce dated 24/7/2016 was filed. In Annexure-III, at paragraph 4, parties have asserted that all the claims and liabilities between them have been settled. The first respondent herein had reiterated that, she had relinquished her right to claim maintenance and agreed that there will not be any future claims or liabilities against each other. On the same day of Annexure-II, Annexure-IV agreement was entered into between the parties, by which all the mutual monetary claims between the parties were recorded as settled. The first respondent undertook to relinquish her right to claim maintenance. This settlement is reiterated also in Annexure-V affidavit dated 24/1/2017 signed by the first respondent. 9. Evidently, on the basis of the settlement arrived at between the parties, divorce was granted. It is seen that, none of the above Crl.M.C.No.8568/2017 7 documents evidencing settlement now relied on by the petitioner herein, has been disputed by the respondent in the Crl.M.C. It is true that, terms of the settlement are no where discernible. Benefits given to the respondents or the quantum of amount paid to them are not borne by any records. However, there was an unequivocal assertion of settlement by the first respondent in various documents of all the claims between the parties. Initial settlement was recorded in the mediation agreement. 10. The present MC is filed under DV Act seeking various reliefs on the basis of Domestic Violence allegedly committed during the subsistence of matrimonial relationship. The contention of the respondent is that, the petitioner herein had agreed to consent for mutual divorce, if she surrendered all the matrimonial rights. Finding no other way, she agreed to all illegal demands and surrendered all her claims. Virtually, the respondent No.1 is disputing the consent for mutual divorce as one obtained under coercion. However, the contention of the first respondent is that her consent for mutual divorce was obtained only if she surrenders her rights. It is pertinent to note that, in Annexure II mediation agreement the only term in the settlement is to file a mutual divorce petition. In the divorce petition Annexure III, there is no averment that all the monetary claims of respondents have been settled for a mutually accepted amount. The averment in the petition is one mere relinquishment of rights of the first respondent. In Annexure IV agreement also, there is no mention about Crl.M.C.No.8568/2017 8 the actual monetary transaction. This court in Bipin's case (cited supra) has also held that, an agreement, by which parties voluntarily agree to relinquish various statutory benefits and claims, was held to be void. It was held that, contracting out of the statutory rights conferred on the wife under sections 19 to 22 of the DV Act was against public policy and cannot be recognized, unless it was held that there was a mutualy satisfactory settlement of all the claims. Hence, it would be open to the parties to contend before the court below that the settlement arrived at between the parties have been mutually agreed and to satisfy the court below that the rights have been validly settled for a mutually agreeable amount, having regard to all the components to which the aggrieved women is entitled to . 10. Claim for maintenance under section 125 Cr.P.C. also stands on a totally different footing. It has been consistently held that, the wife is not entitled to contract out of the right of maintenance under section 125 Cr.P.C. It has also been held that, on the other hand, the parties can mutually agree for a lump sum amount as a pre quantified lump sum, in lieu of future maintenance, which should be a rough equivalent to the actual maintenance, which she is entitled to as maintenance. The Hon'ble Supreme Court in _**Bai Tahira Vs Ali Hussain Fidaalli Chothia ((1979)2 Supreme Court Cases 316)**_ had held that the payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of Crl.M.C.No.8568/2017 9 maintenance rate, but cannot annihilate that rate, unless it is a reasonable substitute. It was held that no construction which leads to frustration of the statutory right can secure validation, if the court was to pay true homage to the Constitution. It was concluded that no husband can claim under section 127 (3) (b) Cr.P.C absolution from his obligation under section 125 Cr.P.C, towards a divorced wife, except on proof of payment of a sum stipulated by customary or personal law, whose quantum is more or less sufficient to do duty for maintenance allowance. 11. **In Sadasivan Pillai Vs. V.Vijayalakshmi (1987 KHC 122),** a single Judge of this court had held that it is the public policy that a wife or a child or father or mother, who is unable to maintain herself or himself, should be paid maintenance allowance by the husband or father concerned, who can afford it. If he neglects to do so, he must be made to do it. It is a basic principle of law that an agreement which is opposed to public policy cannot be enforced in a court of law. Relying on the decision in **Damodaran Vs Lakshmikutty Amma (1979 KLT 543),** it was held that no party can be permitted to contract out of an obligation under section 125 Cr.P.C, which was based on section 23 of the Contract Act. The said view was reiterated by a Division Bench of this court in **Rajesh R Nair Vs Meera Babu Laws (KERALA) 2013 3 140** ,) wherein it was held that maintenance cannot be denied to the wife on the ground of waiver of right to maintenance by the wife. Having considered the above facts, Crl.M.C.is liable to fail. It is Crl.M.C.No.8568/2017 10 accordingly dismissed. However, the petitioner will be entitled to contend that settlement was for due consideration, for a pre-quantified amount, having regard to the requirements of the respondents. **Sd/-** **SUNIL THOMAS JUDGE** Crl.M.C.No.8568/2017 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE I TRUE COPY OF THE O.P.259/2015 FILED BEFORE THE FAMILY COURT, ERNAKULAM. ANNEXURE II TRUE COPY OF THE REPORT OF MEDIATION DATED 20-7-2016. ANNEXURE III TRUE COPY OF THE PETITION DATED 23-7-2016 FILED AS O.P.1418/2016 BEFORE THE FAMILY COURT, ERNAKULAM. ANNEXURE IV TRUE COPY OF THE AGREEMENT DATED 23-72016 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT. ANNEXURE V TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT IN O.P.1418/2016. ANNEXURE VI TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN O.P.1418/2016. ANNEXURE VII TRUE COPY OF THE JUDGMENT DATED 30-1-2017 IN O.P.1418/2016 OF FAMILY COURT, ERNAKULAM. ANNEXURE VIII TRUE COPY OF THE DECREE DATED 30-1-2017 IN O.P.1418/2016 OF FAMILY COURT, ERNAKULAM. ANNEXURE IX CERTIFIED COPY OF THE PETITION FILED AS M.C.23/2017 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY DATED 30-1-2017 IN O.P.1418/2016 OF FAMILY** Crl.M.C.No.8568/2017 12 **COURT, ERNAKULAM.**