Maintenance Order Gained by Fraud is Not Maintainable

Rajasthan High Court

JUSTICE R.S. Chauhan

Rafique Mohammed Vs. Anisa & Ors. On 18 March 2013

Law Point:
Grant to second child — Second application by wife not maintainable qua wife — Respondent-wife hidden the fact that she had filed application under Section 125, Cr.P.C. on 12.6.1998 and was granted maintenance for Iddat period from 14.1.1999 — Respondent-wife procured order dated 27.10.2007 by playing fraud upon Court — Order dated 27.8.2009 passed by learned Judge legally untenable — First child always remained with petitioner-husband — Magistrate not justified in granting any maintenance in favour of first child — As far as second child is concerned, he would be entitled to maintenance till he reaches age of majority — Issue about payment of maintenance to respondent-wife settled by order dated 16.1.2001 passed by Special Judge could not be reopened by respondent-wife — Impugned order quashed and set aside qua respondent wife and confirmed qua second child.

JUDGEMENT

1.The petitioner is aggrieved by the order dated 27.10.2007 passed by the Judicial Magistrate, First Class, Khandar, District Sawai Madhopur whereby the learned Magistrate has directed the petitioner to pay a monthly maintenance of Rs. 700 each (total Rs. 2100) to his former wife, Anisa, and to his two children Raja and Sonu. The petitioner is also aggrieved by the order passed by the Additional Sessions Judge (Fast Track), Sawai Madhopur, dated 27.8.2009, whereby the learned Judge has dismissed the revision petition filed by the petitioner.

2. Mr. Amir Aziz, the learned Counsel for the petitioner, has contended that the respondent-wife, Mst. Anisa, had hidden certain material facts from the learned Magistrate while filing her application under Section 125, Cr.P.C. in 2005. According to him, on 12.6.1998, Mst. Anisa had filed an application under Section 125, Cr.P.C. against the petitioner. The said application was decided by the Civil Judge (Junior Division) and Judicial Magistrate, Khandar by order dated 11.5.1999, since the petitioner was aggrieved by the order dated 11.5.1999, he had filed a revision petition before the Special Judge, Sawai Madhopur while partly allowing the revision petition by order dated 16.1.2001, the Special Judge had clearly noted the fact that Mst. Anisa was divorced by the petitioner on 15.9.1998. The divorce became effective from 14.1.1999, the day when the petitioner had filed his reply to the application filed by Anisa under Section 125, Cr.P.C. Therefore, the learned Special Judge had modified the order dated 11.5.1999 passed by the learned Magistrate, he had limited the maintenance to be paid to Anisa only for the Iddat period of 90 days from 14.1.1999. The fact that she had filed an application under Section 125, Cr.P.C. was not revealed to the learned Magistrate when Anisa again filed her application on 26.4.2005. Moreover, even in her testimony and in the testimony of her witnesses, the fact about the earlier application filed under Section 125, Cr.P.C., and the fact that the special Judge had already granted her a maintenance for the Iddat period, were not revealed to the learned Magistrate, since the order dated 27.10.2007 had been passed ex parte, the learned Magistrate has been misled by the respondent-wife and by her witnesses.

3. Secondly, Raja, one of the two children, has always stayed with the petitioner. This fact has been mentioned in the judgment dated 16.1.2001 passed by the Special Judge. However, even this fact was hidden by the respondent-wife while filing her second application for maintenance. Thus, the learned Magistrate is not justified in granting a maintenance to Raja. Moreover, by now both the children have become major. Hence, they are not entitled to any maintenance from the petitioner.

4. Thirdly, once a judicial finding has been given that the petitioner had divorced his wife as far back as on 14.1.1999, obviously, she was entitled to the maintenance only for the Iddat period. Therefore, she could not have filed a second application under Section 125, Cr.P.C. on 26.4.2005.

5. Fourthly, these glaring facts have been ignored by the learned Judge while passing the impugned order dated 27.8.2009. Therefore, both the orders need to be interfered with.

6. On the other hand, Mr. Kuldeep Verma, the learned Counsel for the respondent-wife, has contended that in the case of Shabana Bano v. Imran Khan, I (2010) DMC 37 (SC)=VIII (2009) SLT 624=IV (2009) CCR 557 (SC)=IV (2009) DLT (Crl.) 877 (SC)=2010 (1) WLC (Cr.) 148 (SC), the Hon’ble Supreme Court has clearly held that maintenance cannot be restricted only to the Iddat period. Therefore, according to him, the learned Magistrate was certainly justified in granting maintenance to the respondent-wife. Secondly, that the petitioner had not brought it to the notice of the revisional Court that Raja was staying with him. Therefore, a new plea cannot be raised before this Court at this juncture. Therefore, he has supported both the impugned orders.

7. In rejoinder, Mr. Amir Aziz has contended that once a finding has been given by the learned Special Judge by his order dated 16.1.2001 with regard to Raja’s staying with the petitioner, the said finding cannot be ignored by this Court. Secondly, the case of Shabana Bano (supra), was decided by the Supreme Court on 4.12.2009. Since both the impugned orders were passed prior to 4.12.2009, the case of Shabana Bano (supra), cannot be given a retrospective effect.

8. Heard the learned Counsel for the parties and perused the impugned orders.

9. A bare perusal of the order dated 27.10.2007 clearly reveals that the respondent-wife had intentionally hidden the fact that she had filed an application under Section 125, Cr.P.C. on 12.6.1998. She had also hidden the fact that by order dated 16.1.2001, the Special Judge had granted her a maintenance for the Iddat period from 14.1.1999. Thus, the respondent-wife had procured the order dated 27.10.2007 by playing fraud upon the Court, it is, indeed, a settled position of law that once an order has been procured by fraud, the order becomes legally unsustainable.

10. Despite the fact that the fraud tactics employed by the respondent-wife was brought to the notice of the learned Judge, the learned Judge has ignored the fact. Hence, even the order dated 27.8.2009 is legally untenable. For, the streams of justice have to be kept pure and clean. Any attempt made by a litigant to pollute the streams of justice should have been deprecated in harshest terms by the learned Judge.

11. As far as the maintenance amount payable to Raja is concerned, a bare perusal of the judgment dated 16.1.2001 passed by the Special Judge clearly reveals that he has concluded that Raja has always stayed with the petitioner. Therefore, the learned Magistrate was not justified in granting any maintenance in favour of Raja. As far as the second child, namely Sonu, is concerned, he would be entitled to a maintenance till he reaches the age of majority.

12. The case of Shabana Bano (supra), does not rush to the rescue of the respondent-wife. The said case was decided by the Apex Court on 4.12.2009, whereas the impugned judgments were passed on 27.10.2007 and 27.8.2009 respectively. Therefore, the interpretation given by the Apex Court cannot be given a retrospective effect.

13. Lastly, once the issue about payment of maintenance to the respondent-wife was settled by the order dated 16.1.2001 passed by the Special Judge, obviously, the said issue could not have been re-opened by the respondent-wife.

14. For the reasons stated above, this Court quashes and sets aside the impugned orders dated 27.10.2007 and 27.8.2009 qua the respondent-wife and Raja. However, the orders dated 27.10.2007 and 27.8.2009 are confirmed qua Sonu.

The petition is, hereby, partly allowed.

DISCLAIMER: The above judgement is posted for informational purpose ONLY. Printout/ Copy from this website are not admissible citation in the Court of Law. For a court admissible copy contact your advocate.

You may contact me for consultation or advice by visiting Contact Us