* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 3948/2008
Date of Decision: 18.05.2012
SANTOSH MALHOTRA ….. Petitioner Through: Ms. Nandita Rao, Advocate.
VED PRAKASH MALHOTRA AND OTHERS …. Respondents Through: Ms. Arati Mahajan,
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition under Section 482 CrPC assails the order dated 23.8.2008 of ASJ passed in criminal revision filed by the petitioner against the order of the M.M. dated 8.3.2007.
2. The petitioner is the wife of the respondent No. 1 and the mother of the respondents No. 2 & 3. She filed a petition under Section 125 CrPC against them seeking maintenance. In the said case, the learned M.M. declined the request of the petitioner for grant of interim maintenance vide his order dated 8.3.2007. The said order was taken in revision by the petitioner in the court of Additional Sessions Judge, who vide the impugned order dated 23.8.2008 granted interim maintenance to the petitioner against her husband (respondent No. 1) at the rate of Rs. 2000/-
Crl.M.C. 3948/2008 Page 1 of 8 per month from the date of the filing of the application. The petitioner has challenged the said order of the ASJ in the present petition and seeks enhancement of compensation against her husband (respondent No.1) as also compensation against her sons i.e. respondents No. 2 & 3.
3. It is noted that all the grounds which have been taken in the present petition under Section 482 CrPC are the same which were taken by the petitioner in the revision petition before the ASJ. Practically, the present petition though, filed under Section 482 CrPC is nothing, but a second revision petition against the order of the M.M. Though, the second revision petition was not maintainable, but having regard to the fact that no findings have been recorded by the ASJ qua the respondents No. 2 & 3 i.e. the sons of the petitioner and respondent No.1, I deem it a case warranting exercise of power of this court under Section 482 CrPC.
4. Before proceeding further, it may be noted that the petitioner and the respondent No. 1 are residing in the same house. This house is three storied comprising of ground, first and second floors. It is undisputed that both the parties are cooking and eating separately. Undisputedly, the respondent No.1 is meeting all the household expenses such as water, electricity charges, maintenance of house, payment of house tax etc. It is also undisputed that respondent No.1 is a person retired from Air India and also that the petitioner owns a house at Mumbai. It is also admitted case that under Section 24 of Hindu Marriage Act, the petitioner was granted Rs. 3500/- per month maintenance from the respondent No. 1 vide order dated 25.11.2009 of ADJ. In CM (M) No. 357/2010, this court enhanced the maintenance to Rs. 4500/- per month and undisputedly, the Crl.M.C. 3948/2008 Page 2 of 8 same is being paid by the respondent No. 1 to the petitioner. It is further undisputed that both the respondents No. 2 & 3, who are the sons of the petitioner and the respondent No.1 are not residing with them in the said house. Respondent No. 2 Prem Prakash is residing at Australia, while respondent No.3 Anil is living sometimes with his sister at Mumbai and sometimes in rented premises.
5. Having noted above the undisputed and admitted facts, the petitioner’s case as set out is that the maintenance of Rs. 4500/- per month is not sufficient and need to be enhanced. She has alleged her husband to be getting Rs. 10,000/- per month as pension and Rs. 15,000/- from the banks as interest on deposits and further, a sum of Rs. 3000/- per month from insurance. With regard to her son Prem Prakash (respondent No.2), who is residing at Australia, she alleged his income to be more than Rs. 2 lakhs per month. Regarding her son Anil (respondent No.3), she alleges him to be working at Mumbai and earning Rs. 30,000/- per month.
6. On the other hand, the respondents pleaded that the petitioner has F.D. to the tune of Rs. 10 lakhs from which, she was getting fixed interest @ Rs. 15,000/- per month. It is alleged that she owns a property at Mumbai, which is lying vacant and can be let out by her. The respondent No. 1 denied that he was earning Rs. 15,000/- per month as interest from bank. It is pleaded that he was getting only Rs. 5000/- per month on the investments made by him in addition to the sum of Rs. 3000/- which he was getting from LIC.
Crl.M.C. 3948/2008 Page 3 of 8
7. I have heard learned counsel for the parties and perused the impugned judgment and also the records.
8. This is a case of really one of the unfortunate family of scattered members. All the four members are living their independent lives. The petitioner seems to be trying to abuse the benevolent provisions of Section 125 CrPC. This Section is designed to help the needy and not the greedy. It is not meant for settling the personal scores, but it is experienced that it is often being misused and the present case is an instance. Here is a lady who owns a house at Mumbai, but is neither prepared to let it out on rent nor give it to her son who is living at the mercy of his sister and sometimes, in some rented house at Mumbai. Though, the petitioner has denied to be having F.D. of Rs. 10 lakhs in the different banks, but she, in any case has admitted the F.D. of Rs. 2 lakhs. She knows that her husband is a retired and ailing person. The pleas that her husband (respondent No.1) is getting Rs. 10,000/- p.m. as pension and Rs. 15,000/- from investments is nothing but a bundle of lies. The respondent No.1 is a retired person and has placed documentary evidence on record to show that he is getting Rs. 3086/- per month as pension through Employee Contributory Scheme based on his own contribution made after his retirement. This fact has already been taken note of by this court in CM (M) No. 357/2010. In the said case, it was the petitioner’s own submission that her husband was getting interest of Rs. 5000/- per month from deposits. Now, she has alleged that he was getting Rs. 15,000/- p.m. without there being any basis for the same. In fact, in the said petition, this court had enhanced the maintenance from Rs. 3500/- Crl.M.C. 3948/2008 Page 4 of 8 per month to Rs. 4500/- per month based on the material available on record to the effect that the income of the respondent No. 1 was Rs. 8000/- per month i.e. Rs. 5000/- as interest from deposits and Rs. 3086/- from Employee Contributory Pension Scheme. Neither before the courts below nor in the CM (M) No. 357/2010 nor in the present proceedings, the petitioner has been able to show her husband’s income as alleged by her. All that she has alleged is vague and baseless.
9. Taking all these into consideration, the learned M.M. observed that she was capable of maintaining herself.
10. From the undisputed factual matrix, it comes out to be that the petitioner owns a house at Mumbai. She has some fixed deposits in the banks, which according to the respondents are worth Rs. 10 lakhs, which according to the petitioner, is only Rs. 2 lakhs. In any case, she is undisputedly getting some interests on these deposits, which has not been disclosed. No evidence has been adduced by either of the parties as regards to deposits amount or the interest therefrom. This emerges to be a triable issue. Undisputedly, she was living in a house where she was not incurring any expenses on rent or other amenities such as water, electricity, cable, house tax etc. She is continuously getting Rs. 4500/- per month from her husband. She was also entitled to the medical facilities of her husband as per his service rules.
11. With regard to the respondent No. 2, who is residing at Australia, it was submitted by the respondents that he is working in a remote area and was the only bread earner of his family and was not in a regular
Crl.M.C. 3948/2008 Page 5 of 8 permanent employment. His salary was stated to be about 800 Australian Dollars per week, which was stated to be insufficient for him and his family needs. With regard to the respondent No.3, it was stated that he is unemployed and even unable to maintain himself and is living at the mercy of his sister at Mumbai.
12. It is settled proposition of law that though the wife, who is unable to maintain herself is entitled to maintenance, both under Section 125 CrPC as also under Section 24, Hindu Marriage Act, but the maintenance claimed under one provision was subject to adjustment under the other provisions. Having regard to the fact that earlier, this court has assessed the entitlement of maintenance of the petitioner from her husband @ Rs. 4500/- per month under Section 24, Hindu Marriage Act, for the same reasons, I am also of the view that she would be entitled to interim maintenance under Section 125 Cr.P.C. at this rate from her husband (respondent No.1).
13. With regard to the claim of the petitioner from her sons (respondents No. 2 & 3), it was submitted on behalf of her son Prem Prakash that his weekly income was about 800 Australian Dollars. The details of the expenses of his family have also been submitted in writing. However, he has offered 100 Australian Dollars per month as maintenance to the petitioner, which according to me, at this stage, seems to be just and reasonable. The petitioner has claimed arrears of maintenance from him, but the same was outrightly refuted saying that this respondent was in a very bad financial condition to give any arrears. With regard to respondent No. 3 Anil also, there is nothing on record at Crl.M.C. 3948/2008 Page 6 of 8 this stage to see his income. But, since he is an able-bodied young boy, it is his moral as well as legal duty to give something to his mother. In the absence of there being any material available on record, he would be liable to pay maintenance to his mother (petitioner) @ Rs. 1500/- per month.
14. The matter does not end here. During the proceedings conducted on 26.3.2012, the respondent No. 1 had stated that he had let out the second floor of the premises to a tenant @ Rs. 10,000/- per month. He offered 50% of the rent i.e. Rs. 5000/- per month to be given to the petitioner w.e.f. 22.4.2012. The petitioner and her counsel agreed to this offer but later, she demanded the whole of the rent and also alleged the rent to be more than Rs. 10,000/- per month. In the proceedings conducted on 26.3.2012, the offer as given by her son Prem Prakash of 100 Australian Dollars per month as also of her husband of Rs. 5000/- per month out of the rent and to continue pay Rs. 4500/- per month as before, was outrightly declined by the petitioner in the subsequent proceedings. This shows the conduct of the petitioner, who seem to be not only greedy and trying to settle the scores, but was extremely aggressive also. However, irrespective of all that, I think that the offers given by the respondents No. 1 & 2 are quite just and reasonable given the facts and circumstances of the case.
15. In view of the above discussion, it comes out to be that the petitioner would be entitled to maintenance @ Rs. 4500/- per month from the date of this order from her husband (respondent No.1) under Section 125 CrPC. In addition, she would be entitled to maintenance of 100 Crl.M.C. 3948/2008 Page 7 of 8 Australian Dollars from her son Prem Prakash (respondent No.2) and Rs. 1500/- per month from her son Anil (respondent No.3). Having regard to the peculiar circumstances of the respondents No.2 and 3, they are directed to pay these amounts of maintenance to petitioner from the date of this order. The issues regarding claims of maintenance from them from the date of application, shall be determined at time of final disposal of the petition by the Trial Court. She would be also entitled to Rs. 5000/- per month w.e.f. 22.4.2012 being half of the rent of the premises of second floor let out by the respondent No. 1. It is clarified that in the event of any increase in the rent amount of the said premises at any point of time, half of the rent whatever may be, shall be continued to be paid to the petitioner by her husband (respondent No.1). Consequently, the impugned order stands modified in the manner as indicated above.
16. Petition along with miscellaneous applications stand disposed of.
M.L. MEHTA, J.
MAY 18, 2012
Crl.M.C. 3948/2008 Page 8 of 8
HC: It is the discretion of the trial Court to grant maintenance either from the date of order or from the date of application
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc.No.M-8902 of 2011 (O&M)
Date of decision: 18.5.2012
Smt. Sushila & another
CORAM:- HON’BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. J.P. Sharma, Advocate for the petitioners.
None for the petitioner.
RAKESH KUMAR GARG, J.
1. Petitioners are wife and daughter of respondent-
Suresh Kumar. They were provided maintenance allowance at
the rate of Rs.750/- per month each under Section 125 CrPC, to
be paid by the respondent vide order dated 22.8.2006.
Subsequently, in an application filed on 11.10.2008 under Section
127 Cr.P.C., the Sub Divisional Judicial Magistrate, Mohindergarh,
vide order dated 20.3.2010, enhanced maintenance allowance to
Rs.2,000/- per month to petitioner No.1 and Rs.1,000/- per month
to petitioner No.2, from Rs.750/-.
2. Feeling aggrieved from the aforesaid order, the
petitioners filed revision petition before the Sessions Judge, CRM No.M-8902 of 2011 2
Narnaul by raising grievance that petitioner No.2-Monika was also
entitled to maintenance allowance at the rate of Rs.2,000/- per
month instead of Rs.1,000/- per month. Vide order dated
27.11.2010, maintenance allowance of Monika was enhanced to
Rs.2,000/- per month, but it was ordered that the enhanced
amount would be payable to both the petitioners with effect from
20.3.2010 i.e. date of order passed by the Sub Divisional Judicial
Magistrate, Mohindergarh. Whereas the enhanced maintenance
allowance should have been awarded from the date of application
i.e. 11.10.2008 instead of date of order.
3. From the aforesaid facts, as narrated above, it may be
noticed that only grievance of the petitioner is that the enhanced
maintenance should have been allowed from the date of
application instead of the date of order of Sub Divisional Judicial
4. It is useful to refer to Section 127 CrPC, which reads
127. Alteration in allowance.- (1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance, or interim CRM No.M-8902 of 2011 3
maintenance, as the case may be.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (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) The woman has, after the date of
such divorce, remarried; cancel such
order as from the date of her
(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
(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
to the woman;
(c) The woman has obtained a divorce
from her husband and that she had
voluntarily surrendered her rights to maintenance or interim maintenance,
as the case may be after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any CRM No.M-8902 of 2011 4
person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance, in pursuance of the said order.”
5. The plain import of Section 127 is that a provision is
made therein for an alteration of the maintenance allowance
consequent upon a change in the circumstances of either party at
the time of application for alteration. However, mere allegation of
change in circumstances in the application are not enough and
the same requires to be proved. Thus, while dealing with such an
application, the Magistrate should consider the matter in the light
of criteria which usually weighs with Court in the proceedings u/s
125 CrPC and after an inquiry, an appropriate order for alteration
can be passed. It may further be noticed that the aforesaid
provision has put no bar on the powers of the Court to order
alteration in the maintenance allowance from the date of
application. In other words, the order for payment of enhanced
maintenance allowance can be made from the date of application,
for the reasons established on the record.
6. In the facts and circumstances of the case, it has
been established that there exists reasons for enhancing the
maintenance allowance from the date of application.
7. At this stage, it is useful to refer to judgments of this
Court in the case of Smt. Tripta v. Sat Parkash 1984 CCC 482, CRM No.M-8902 of 2011 5
wherein it has been observed that it is the discretion of the trial
Court to grant maintenance either from the date of order or from
the date of application and in the case of Bhagat Singh v. Smt.
Parkash Kaur 1972 Vol.LXXIV PLR 952, wherein it has been
held that the Magistrate had the power to make alteration in the
maintenance from the date of application.
8. Thus, keeping in view the aforesaid judgments of this
Court and the discussion, as above, this petition is allowed and
the impugned order is modified to the extent that the enhanced
maintenance allowance to the petitioners shall be payable from
the date of application instead of the date of order of Sub
Divisional Judicial Magistrate, Mohindergarh.
May 18, 2012 ( RAKESH KUMAR GARG ) ak JUDGE
Calcutte HC: Even after grant of divorce, divorcee wife is entitled to grant a maintenance under CrPC 125
CRR No.2716 of 2012
In re: Arabinda Mallick
- And -
In the matter of : An application under Section 482 of the Code of Criminal Procedure, 1973.
Mr. Haradhan Banerjee,
Mr. Partha Pratim Mukherjee
…… For the Petitioner.
Present petition has been filed under Section 482 of the Code of Criminal Procedure praying that the impugned order dated 16th July, 2012 passed by Judicial Magistrate, Second Court at Sealdah in Miscellaneous Execution Case No.8 of 2012, be set aside, whereby Warrant of Arrest was issued against the petitioner.
Counsel for the petitioner contended that divorce was granted to the petitioner on the ground of desertion by the wife. Hence, divorced wife is not entitled to grant a maintenance.
This Court relying upon Rohtash Singh Vs. Ramendri (Smt) and Ors., (2000) 3 Supreme Court Cases 180 had already held that after grant of divorce, divorcee wife is entitled to grant a maintenance. It will be apposite to reproduce paragraph 10 of Rohtash Singh (supra) and the same reads as under: 2
” Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case, has taken a similar view. We approve these decisions as they represent the correct legal position. “
At this stage, Counsel for the petitioner submits that this Court need not adjudicate the right of deserted wife to get maintenance as already Criminal Revision No.1251 of 2011 filed by the petitioner is pending in this Court. However, Counsel for the petitioner states that he will limit his prayer to urge that there is no justification for the trial Court to issue Warrant of Arrest as no notice was served upon the petitioner earlier. Counsel has further undertaken that petitioner shall appear before the trial Court on 14th August, 2012, date fixed for appearance.
In view of the undertaking given by the Counsel for the petitioner, present petition is disposed of by issuing a direction that the Warrant of Arrest issued against the petitioner be kept in abeyance till 14th August, 2012 to enable the petitioner to appear before the trial Court on the date fixed, i.e., 14th August, 2012. However, it is made clear that in case petitioner fails to appear before the trial Court on 14th August, 2012, trial Court shall be 3
well within its right to initiate all coercive action against the petitioner to secure his presence.
Let a photostat copy of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Counsel for the petitioner on usual undertakings.
( Kanwaljit Singh Ahluwalia, J. )
Husband ordered to pay 1.5 lakh per month by HC though wife has 2 crores, plot and stays in husbands house
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th February, 2012
+ FAO 448/2011
% ASHWANI MEHTA ….Appellant Through: Mr. Vikas Arora, Adv.
MRS. VIBHA MEHTA ….. Respondent Through: Mr. K.K. Manan, Adv. with Mr. Mustafa Arif & Mr. Nipun Bhardwaj,
+ FAO 521/2011
% MRS. VIBHA MEHTA ….. Appellant Through: Mr. K.K. Manan, Adv. with Mr. Mustafa Arif & Mr. Nipun Bhardwaj,
ASHWANI MEHTA ….Respondent Through: Mr. Vikas Arora, Adv.
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. Both parties, being husband and wife, are dissatisfied with the order dated 09.09.2011 of the Family Court in exercise of powers under Section 125 of the Cr.P.C. awarding a sum of `60,000/- per month as maintenance FAO Nos.448/2011 & 521/2011 Page 1 of 9 to be paid by the husband to the wife from the date of filing of the petition i.e. 09.08.2005. When the appeal preferred by the husband came up before this Court, on the objection of the Registry as to the maintainability of the appeal, vide order dated 19.10.2011 the appeal was held to be maintainable and notice thereof was issued and the order of the Family Court in so far as qua the payment of arrears, was stayed.
2. The counsels have been heard. After hearing arguments on 03.01.2012, the husband was given an opportunity to sort out certain matters. Thereafter again on 18.01.2012, the counsels were heard.
3. The wife had claimed maintenance at the rate of `1,50,000/- per month. She is aggrieved from the grant of maintenance at the rate of `60,000/- per month only and in her appeal seeks maintenance at the rate of `1,50,000/- as claimed.
4. The Family Court has in the impugned order noticed/observed held:
(i) that the parties were married on 19.01.1981 and have two children from the wedlock;
(ii) they have been living separately in the same house;
(iii) that the matter regarding maintenance was settled on 01.02.2002 when the husband had agreed to pay maintenance of `1,50,000/- per month to the wife;
(iv) that the maintenance in fact was so paid at the said rate for four months but subsequent payments were stopped;
FAO Nos.448/2011 & 521/2011 Page 2 of 9 (v) the wife is not working and has no source of income;
(vi) the husband is a well qualified Doctor running Kolmet Hospital at Pusa Road, New Delhi and earning `35/- lakhs per annum as per income tax record and also holds several other properties;
(vii) it was the case of the husband that he was looking after all the financial needs of the wife and as such she did not require any maintenance;
(viii) that the wife was an active partner of hotel Marina and had 8% profit sharing in the said partnership;
(ix) that in a dispute relating to the partnership of hotel Marina, a sum of `2/- crores had been deposited in the Court to be withdrawn by the wife;
(x) that the wife also owned a 1000 sq. yards plot at Faridabad and an Opel Astra car;
(xi) that though the wife had led evidence but no evidence was led by the husband;
(xii) that the needs of the wife like food, electricity, residence etc. were being looked after by the husband since she was staying in the same house;
The Learned Family Judge arrived at the figure of `60,000/- per month as maintenance.
FAO Nos.448/2011 & 521/2011 Page 3 of 9
5. We will first deal with the argument of the need of the wife for maintenance when she is residing in the matrimonial house and when admittedly she has not to spend any amount on her food, residence and residential amenities. We are unable to accept the contention of the husband that, the husband if provides food and residence, owes nothing further to the wife. Attention of the counsel for the respondent is invited to age old concept of “Kharcha-i-Pandan” as also noticed by privy council in Nawab Husaini Begam v. Nawab Khwaja Muhammad Khan MANU/PR/0007/1910. The women, even when rarely going out of the house and when the entire expense of the household was met by the husband, were still found entitled to an amount for their own spending. In certain regions, the said amount also went by the name of “Hath Kharch”. The expression used in the English system was “Pin Money”. Even otherwise, it is unbelievable that if the relations had been good, the husband if had been providing boarding and lodging, would not have provided anything further to the wife. The Supreme Court recently in Vinny Parmvir Parmar v. Parmvir Parmar (2011) 7 SCALE 741 has reiterated that the test to be applied in adjudication of maintenance is, to place the wife in the same position as she would have been if the relationship had continued. It has come on record that the wife has a car which she states is thirteen years old, however money is required for running the car. Similarly, money is required to fulfill the other day-to-day needs including of clothing, personal effects etc. of the wife. Similarly money is required for entertainment. A life on alimony is not to be a life different from what the wife would have led if the relationship had not gone sour. The quantum of maintenance inter alia depends upon the status of the husband.
FAO Nos.448/2011 & 521/2011 Page 4 of 9
6. During the hearing before us also, it was admitted that the wife is not working. It was further admitted that she was a partner in hotel Marina. However, it is further admitted that disputes and differences had arisen with respect to the said partnership in which the father of the husband and certain other persons are other partners. While the father of the husband claims that the „wife‟ in a litigation with respect to the said partnership had agreed to dissolution thereof on receipt of `2/- crores and which was deposited, the wife controverts the same. The fact remains that the said sum of `2/- crores has not come into her hands and the dispute relating to partnership is still pending. It is also a fact that owing to the said dispute, the wife is not getting any share of profits of the said partnership. Thus the wife has no source of income.
7. The wife, as aforesaid is the owner of a plot of land ad-measuring 1000 sq. yards at Faridabad. However the said plot also is not earning her any income. The argument is that she can sell the same and would get enough sale consideration, to be not entitled to any maintenance. On the contrary, the wife contends that neither she is in possession of the documents of title of the said plot and nor she is in a position to immediately sale the same owing to her husband and his family members having allowed some other persons to encroach thereon. After the hearing on 03.01.2012, we had adjourned the matter to explore the possibility of sale of the said plot. However, no possibilities thereof emerged. The ownership of the said plot thus cannot be a factor influencing the quantum of maintenance.
8. That leaves us with the question of quantum of maintenance. The wife has predicated her claim at `1,50,000/- per month on the basis of FAO Nos.448/2011 & 521/2011 Page 5 of 9 agreement of the year 2002. The said agreement was proved by the wife in her evidence before the Family Court. The said agreement is as under:-
“We, Ashwini and Vibha are married and we
confirm that we would like to continue loving and living with each other.
We also confirm that we will like to live our lives in absolute harmony and perform all the responsibilities of a husband and wife.
We, commit to be faithful in our married life,
provide financial, emotional and mental support in all times.
In case of any breach of trust on account of being unfaithful, Ashwini would provide his wife, Vibha Mehta.
i) Continue to live on the 2 nd Floor of D- 196/D-197, Defence Colony, New Delhi, freely.
ii) Provide financial monthly support of `1,50,000/- (Rupees One Lakh Fifty Thousand
Only) to Vibha.
He will be responsible in bringing up the children and provide for them.
FAO Nos.448/2011 & 521/2011 Page 6 of 9 This document cannot be used in any form or forum without the consent of Anil Taneja, the arbitrator for this document.
This entire document has been written by arbitrator Anil Taneja, in his own handwriting.
This document is signed on 18 th Feb’ 2002 in New Delhi at D-196/197, Defence Colony.”
9. We have asked the counsel for the husband as to why the husband should not be held bound by the same.
10. He contends (i) that the said agreement is forged, (ii) that the same was not to be used before any fora, (iii) that the husband had thereunder agreed to provide financial support of `1,50,000/- only in the event of being unfaithful and it has not been proved that he was unfaithful.
11. We have perused the cross examination of the wife by the counsel for the husband on the aspect of the said agreement. Therefrom, we are unable to hold that there is any challenge to the genuineness of the same. It has not been so contended strenuously either. The husband did not step into the witness box to deny the said argument. Once the agreement is established, mention therein of the condition of being unfaithful, for such financial support or not to use the same in any Court are meaningless and not found to be relevant as far as the quantum of maintenance is concerned. The financial support of `1,50,000/- per month which the husband in the said agreement had agreed to pay cannot be said to be a compensation for being unfaithful which in any case is an offence in law. The word unfaithful in FAO Nos.448/2011 & 521/2011 Page 7 of 9 the said agreement connoted the parties being unable to stay as husband and wife and which admittedly they are not. The term therein of non use thereof in Court without permission of Mr. Anil Taneja also has not been established. As aforesaid, the husband has chosen not to come in the witness box. The husband has not established that Mr. Anil Taneja has any objection to the use of the said document in the Court. Moreover, it is quite evident that the document was created to bind the husband and hence the clause therein to the effect that it cannot be used in Court without the consent of Mr. Anil Taneja is found to be not preventing the wife from relying thereon.
12. The husband as aforesaid has failed to appear in the witness box. The only inference which can be drawn is that had he so appeared, he would have been forced to admit his income and assets to be enough to justify what he had agreed to pay i.e. `1,50,000/- p.m.
13. The Family Court however in the judgment impugned in these appeals has not given any reason to not bind the husband to the rate of maintenance which he had agreed in the said agreement.
14. We do not see any reason to differ from the quantum of maintenance agreed by the parties themselves specially when we have nothing before us to show that there is any reduction in the income of the husband since the year 2002 when he had agreed to the said quantum. Rather with the passage of time in the normal course, the income of the husband would have gone up.
FAO Nos.448/2011 & 521/2011 Page 8 of 9
15. However, since maintenance is in the form of subsistence, we are of the view that while the arrears in terms of order of the Family Court should be confined to maintenance at the rate of `60,000/- per month, the future maintenance should be in terms of the agreement at the rate of `1,50,000/- per month.
16. Accordingly, the husband is directed to pay the arrears of maintenance at the rate of `60,000/- per month within six weeks hereof and if has not paid maintenance since then @ ` 1.50 lac p.m. to pay difference between `60,000/- and `1,50,000/- with effect from the date of the order of the Family Court and till the end of February, 2012 within four weeks hereof and to with effect from the month of March, 2012 pay maintenance at the rate of `1,50,000/- per month, to the wife.
17. FAO 448/2011 preferred by the husband is accordingly dismissed and FAO 521/2011 preferred by the wife is partly allowed. The matters having been disposed of expeditiously, no order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
FEBRUARY 17, 2012
FAO Nos.448/2011 & 521/2011 Page 9 of
If order of maintenance is passed under section 18 HAMA or section 125 Cr.PC then wife can file for divorce under section 13(2)(iii)
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT APP. No.20/2011 & CM No. 5645/2011
Judgment delivered on: 02 November, 2011
Satinder Singh ……Petitioner Through: Mr. Hari Shankar, Adv.
Bhupinder Kaur ……Respondent Through: Mr.Shailender Dahiya, Adv.
HON’BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 read with section 151 CPC, the Appellant seeks to challenge the Order dated 16.8.2010 passed by the learned trial court whereby a decree of divorce under Section 13(2)(iii) of the Hindu Marriage Act was passed in favour of the respondent.
2. Brief sequence of events that has led to the filing of the present appeal is that the respondent filed a petition for divorce under section 13(2)(iii) of the Hindu Marriage Act and MAT APP.20/2011 Page 1 of 11 the appellant filed an application under Order VII rule 11 for rejection of the plaint which was dismissed vide order dated 13.11.2009. A revision was filed against the said order which was dismissed by this court vide order dated 17.12.2010. Thereafter the petition for divorce was decided and the respondent was granted divorce vide order dated 16.8.2010 and feeling aggrieved by the same, the appellant has preferred the present appeal.
3. Assailing the said judgment and decree, learned counsel representing the appellant submits that the order passed under Section 125 Cr.PC was an interim order and based on the interim order the learned matrimonial court could not have exercised jurisdiction to grant a decree of divorce in terms of section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that any interim order passed in any proceedings will always remain an interim order which would ultimately be subject to passing of a final order and the final order can always vary and in a given case may be against the party in whose favour an interim order has been passed. Counsel thus submits that jurisdiction under Section 13(2) (iii) of the Hindu Marriage Act may be exercised by the matrimonial court only when a final order was passed under Section 125 Cr.PC and, therefore, the MAT APP.20/2011 Page 2 of 11 expression ‘order’ referred to under section 13(2) (iii) of the Hindu Marriage Act must be read as a final order and not as an interim order. Counsel also submits that the respondent has also misled the matrimonial Court by not disclosing the fact that she got remarried and due to such suppression of a material fact on the part of the respondent she was not entitled to the grant of decree under section 13(2) (iii) of the Hindu Marriage Act. Counsel also submits that the learned matrimonial court has also not appreciated that the earlier divorce petition filed by the respondent under section 13(1) (ia) of the HM Act was dismissed and the said finding being against the respondent and in favour of the appellant, the learned trial court ought not to have passed a decree in favour of the respondent under section 13(2) (iii) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant has placed reliance on the following judgments :-
1.Gita Massant vs. Narain Dass, 27 (1985) DLT 374
2.Snehlata Seth vs. V.Kewal Krishan Seth, 27(1985) DLT 449.
3.Prem Chandra Agarwal vs. U.P. , JT 2009(8) SC 118
4. Amarjeet Singh vs. Devi Ratan, AIR 2010 SC 3676
5. Kalabharati Advertising vs. Hemant Vimalnath, AIR 2010 SC 3745
4. Opposing the present appeal, counsel for the respondent submits that the appeal filed by the appellant is a MAT APP.20/2011 Page 3 of 11 gross abuse of process of law and the appellant has suppressed from this court that he had filed an application under Order VII Rule 11 CPC before the matrimonial Court to seek rejection of the said petition filed by the respondent under section 13(2) (iii) of the HM Act and that the said application of the appellant was dismissed by the trial court. Counsel further submits that against the said order the appellant had also filed a revision petition before this Court which was also dismissed vide order dated 17.12.2010. Counsel thus submits that because of suppression of these vital facts, the appellant is not entitled to the grant of any relief by this Court in the present appeal. Counsel further submits that in the order passed by the Hon’ble High Court in the said revision petition, the finding has already been given by this Court that the interim order passed under section 125 Cr.PC would give jurisdiction to the matrimonial court to pass a decree under section 13(2) (iii) of the HM Act and the said finding not being challenged by the appellant, the same attained finality and in view of this also the appellant now cannot agitate the same grievance again before this Court. Counsel also submits that so far as the remarriage of the respondent is concerned, same has taken place after the passing of the decree of divorce in favour of the respondent.
MAT APP.20/2011 Page 4 of 11
5. I have heard counsel for the parties at considerable length and gone through the records.
6. The Law Commission in its 59th report recommended adding section 13(2)(iii) to the Act wherein it provided an additional ground of divorce to the wife. The intent of introducing the said section was to give the wife the right to seek divorce if she has been neglected or not maintained by her husband after an order of maintenance has been passed in her favour. There was discussion with regard to the said provision being made available to the husband equally but it was concluded that such right would ultimately lead to the husband misusing the provision, who in the bid to get rid of his wife would abandon her and compel the wife to move the court for the grant of maintenance and thereafter himself fully submit to the order of payment of maintenance knowing that he would be entitled to get a decree of divorce after the said period of one year has elapsed. Therefore the said provision was brought on the statute book to enable only the wife to seek a decree of divorce if after passing of the order of maintenance there has been no cohabitation for one year which would mean that the husband has ceased to value the society of the wife and their need for each others company has MAT APP.20/2011 Page 5 of 11 prima facie come to an end. Earlier it was suggested that the period under the section be of three years but later on it was reduced to one year as being appropriate. Thereafter Section 13(2)(iii) of the Hindu Marriage Act in its present form was introduced in the Act through the Marriage Laws (Amendment ) Act, 1976 (Act 68 of 1976). Hence by virtue of the said provision, an additional ground of divorce has been made available to the wife to seek dissolution of her marriage by a decree of divorce on the ground that a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife either in a suit filed by the wife under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure and since the date of passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. For better appreciation, Section 13(2) (iii) is reproduced as under: “Section 13(2): A wife may also present a petition for dissolution of her marriage by a decree of divorce on the ground,-
(iii) that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the corresponding section 488 of the Code of
Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the MAT APP.20/2011 Page 6 of 11 wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards;”
7. It would be evident from a plain reading of the above provision that for a wife to claim divorce under the said provision she is required to satisfy the following conditions: (a) A decree or order has been passed in her favour and against the husband awarding maintenance to her either in a suit filed by her under Section 18 of the Hindu Adoptions and Maintenance Act or in the proceedings under Section 125 of the Code of Criminal Procedure; and
(b) That the wife has been living apart since passing of such a decree or order; and
(c) There has been no resumption of cohabitation between the parties for a period of one year or upwards. Hence, in a petition filed by the wife under the said section if she is able to satisfy the aforesaid three conditions, then she would be entitled to a decree of divorce. In the facts of the case at hand, the contention raised by the counsel for the appellant is that the order which gives a right to the wife to seek divorce under the said section is a final order and not an interim order. The appellant had urged this ground for filing an application MAT APP.20/2011 Page 7 of 11 under order 7 rule 11 for rejection of the petition for divorce filed by the wife on the basis of the interim order dated 2.3.2005 under section 125 CrPC where the court while dismissing the said application vide order dated 13.11.2009 held that the word ‘order’ would include an interim order as well and the appellant herein had then challenged the order before this court in the revision petition which was also dismissed by this court vide order dated 17.12.2010 with the following observations: “As per this Section, wife is entitled to file a petition for dissolution of marriage by a decree of divorce on the basis of proceedings under Section 125 Cr.P.C. wherein a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife. The word “order” appearing in this Section includes the interim order as well as the final order and does not speak only of the final order passed on a petition under Section 125 Cr.P.C. for seeking dissolution of marriage by a decree of divorce under the above provisions of law” Admittedly, the above said order of this court was not challenged by the appellant and thus attained finality laying the controversy to rest to whether the order under the said section would mean an interim order as well and the ground cannot be allowed to be reagitated by the appellant herein.
8. Even otherwise, a bare look at the section13(2)(iii) would manifest the intention of the legislature as two separate expressions have been used in the said Section i.e. ‘decree’ or MAT APP.20/2011 Page 8 of 11 ‘order’, which would necessarily mean either an interim or a final order. The intention of the legislature is to give a right to the wife to invoke the said provision in a case where even an interim order has been passed in either of the said proceedings, which is also clear from the language used in the said section beginning with the words “in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure , wherein the words ‘in a suit or in a proceeding’ would clearly mean that the order passed during the pendency of the proceedings either under Section 18 or under Section 125 of the Code of Criminal Procedure. There is thus no room to interpret the said provision in a manner suggested by the counsel for the petitioner which otherwise would defeat the very purpose and object of the said section.
9. The essence of the said provision is that there should be no resumption of cohabitation between the parties for a period of one year or upwards from the date of the passing of such an order, so this one year gap has to be reckoned from the date of the passing of an order under Section 125 of the Code of Criminal Procedure or under Section 18 of the Hindu Adoptions MAT APP.20/2011 Page 9 of 11 and Maintenance Act and not necessarily a final order or decree. The section does not talk about the payment or non payment of the maintenance amount but of the non resumption of cohabitation of the parties. Clearly, in the facts of the present case the appellant had admitted that there was no resumption of cohabitation for a period of more than one year after the order dated 02.03.2005 under Section 125 Cr.P.C. was passed by the court of the learned Metropolitan Magistrate.
10. It is quite pertinent to note that section 13(2)(iii) talks about section 18 under the HAMA and section 125 Cr.PC, which are both the provisions for grant of maintenance available to the wife only unlike section 24 or 25 of the HMA wherein any party can approach the court for the grant of maintenance. It is thus manifest that the order of maintenance passed in the favour of the wife in her petition under section 18 HAMA or section 125 Cr.PC would make her available the right to file for divorce under section 13(2)(iii). If the contention of the counsel for the appellant is accepted and the order in the section is meant to be only a final order then the purpose of the said provision would be negated as the wife who seeks a decree of divorce under the said section would have to wait till a final order under section 18 or MAT APP.20/2011 Page 10 of 11 section 125, as the case may be, which would certainly mean insisting on an invariably long waiting period, which is certainly not the object of the said section. The only desideratum is that the parties have ceased to live together for one year or more and to save the wife from vagrancy she has a order or decree of maintenance in her favour. The judgments relied upon the counsel for the appellant would not be applicable to the facts of the case at hand as they sought to carve a different legal proposition altogether.
11. In the light of the above discussion, this court does not find any merit in the present appeal and the same is hereby dismissed.
November 02, 2011 KAILASH GAMBHIR,J MAT APP.20/2011 Page 11 of 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Rev. P. 726/2010 & Crl. M.A. 17479/2011 % Reserved on: 8th August, 2011 Decided on: 4th November, 2011
ANITA ….. Petitioner Through: Mr. Ratnesh Bansal, Advocate
RATI RAM CHAUHAN ….. Respondents Through: Mr. Shailender Dahiya, Advocate with Respondent in person.
HON’BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?
MUKTA GUPTA, J.
1. By this petition the Petitioner seeks quashing of the Judgment dated 10th September, 2010 passed in case number 95/2010 by the learned Additional Principal Judge dismissing the application of the Petitioner seeking maintenance from the Respondent under Section 125 Cr. P. C. Crl. Rev.P. No.726/2010 Page 1 of 8
2. Briefly the facts are that the marriage between the parties was solemnized on 23rd February, 1996. The Petitioner claims that the Respondent and his family members were not satisfied with the dowry articles presented at the time of marriage. They started ill treating her and raised a demand of Rs. 1 Lac and a car. On 17th April, 1996 the Respondent, his father and sister pushed her down from the roof of the matrimonial home resulting in serious injuries to the Complainant. She was then removed by the neighbors to Gupta Nursing Home. The nursing home however did not admit her and referred her instead to Mata Chanan Devi Hospital. On 27th April, 1996 the Petitioner was discharged from Mata Chanan Devi Hospital and since then she has been staying in her parental home. After about 17-20 months, the Petitioner lodged a complaint with the police for the said incident and a case FIR No. 34/98 was registered under Section 498A/307/406/34 IPC. In the said trial the Respondent and his family members were acquitted by the learned Additional Session Judge. The Respondent in May, 1998 filed a petition for dissolution of marriage on the ground of cruelty and the marriage was dissolved by learned District Session Judge vide Judgment and decree dated 26th May, 2007. Vide this Judgment, the Petitioner was granted Rs. 3,000/- per month as alimony. There is however an appeal pending in this court filed by the Petitioner vide Mat. App. 46/2007. The Petitioner Crl. Rev.P. No.726/2010 Page 2 of 8 claims that after her injury, she is unable to move and the Respondent has not made any provision for her medical treatment or maintenance and is refusing to maintain her without any sufficient cause. Hence the present petition.
3. The learned Counsel for Petitioner contends that the learned Additional Principal Judge in the impugned Judgment has placed great reliance on the fact that the Respondent and his family members have been acquitted by the learned Additional Session Judge. According to him this acquittal was not binding on the family court and therefore the maintenance application should have been decided on its own merits de- hors the findings of the learned Additional Sessions Judge in the criminal trial.
4. It is stated that as per Section 125 Cr. P. C if a person with sufficient means neglects or refuses to maintain his wife then he is liable to pay her maintenance. Learned Counsel states that the learned Additional Principal Judge failed to appreciate the fact that during trial the Respondent admitted his liability to maintain the Petitioner but had not shown any intention to take the Petitioner back to the matrimonial home.
Crl. Rev.P. No.726/2010 Page 3 of 8
5. Learned Counsel for Petitioner further states that the Petitioner has appealed against the Judgment dated 26th May, 2007 passed by the learned Additional Session Judge dissolving her marriage which is still pending in this Court. Under these circumstances the alimony of Rs. 3,000/- per month granted to the Petitioner in the divorce proceedings should have been disregarded by the learned Additional Principal Judge while deciding the petition for maintenance.
6. Learned Counsel for Respondent on the other hand contends that the Respondent had never neglected to maintain the Petitioner. On the 17th April 1996, the Petitioner slipped from the stairs when the Petitioner and his father were not at home. The entire medical expenses were borne by the Respondent. The Respondent being a Government employee is entitled to all the facilities of medical treatment under CGHS and had repeatedly asked the Petitioner to get treated at any CGHS hospital. But all she did was demand money in lieu of medical expenses, trying to cause the Respondent wrongful loss. The Petitioner was never meted with cruelty. It is the Petitioner who has deserted the Respondent as she was not interested in maintaining the relations.
7. I have heard learned Counsels for the parties. While adjudicating any issue it is the responsibility of the Judge to consider all the facts and circumstances. Proceedings under Section 125 CrPC are summons trial Crl. Rev.P. No.726/2010 Page 4 of 8 proceedings. The Court is justified on relying upon the findings of the competent Court in a criminal trial for the offences alleged and regarding cruelty by the matrimonial Court. In Inderjit Kaur vs. Union of India (1990) 1 SCC 344 it was held that, that Section 125 CrPC provides a speedy remedy against starvation of the civil liabilities of the parties, the order made thereunder is tentative and is subject to final determination of the rights in civil court. Further in Teja Singh vs. Chhoto 1981Crl. L.J. 1467 (Punjab & Haryana) while dealing with a similar issue it was held that even if an order granting maintenance had been passed in favour of the wife and if thereafter a decision between the parties is rendered by the civil court which has a bearing on the question which came up for consideration earlier before the Court dealing with the petition under Section 125 of the Code of Criminal Procedure, it has to give effect to the civil court order by cancelling the order granting maintenance if such is the import of the judgment of the civil court. In case of Sri Jasholal Agrawala @ Jain vs. Smt. Puspabati Agrawala, 1994 Crl.LJ 185 the High Court of Orissa it was held that it has to be taken as an accepted principle that the finding of the civil court in a matrimonial proceeding is binding on the criminal court and the criminal court is not entitled to question the correctness or validity of the civil court decision. Crl. Rev.P. No.726/2010 Page 5 of 8
8. The learned Additional Principal Judge was therefore justified in relying on the fact that the learned Additional District Judge by Judgment dated 26th May, 2007 had dissolved the marriage of the parties on the ground of cruelty by the Petitioner and had the Respondent actually been harassing or neglecting the Petitioner then he would have never succeeded in the divorce petition. The fact that the Respondent allowed bed ridden Petitioner to go to her parental home so that she could be looked after by her mother was also found to be convincing since the Respondent had no female member in his family.
9. It is relevant to note that the Petitioner in her statement has admitted before doctor in the Hospital that she had slipped from the stairs on the day of incident. The Petitioner has not placed anything on record to show that there was any pressure from the side of Respondent on her to give that statement. Further, the father of the Petitioner in his statement before Court admitted that when he visited his daughter in the Hospital she did not tell him anything. From a perusal of the statements of witnesses, it is clear that the claim of the Petitioner that Respondents failed to maintain her and willfully neglected her is not substantiated.
10. As per the record the Respondent had filed the medical bills of Mata Chanan Devi Hospital as evidence of making payment of the same. The father of the Petitioner in his explanation for the bills being in Crl. Rev.P. No.726/2010 Page 6 of 8 possession of the Respondent had stated that the respondent had stolen the bills from him. But this story is completely contradictory to his other statement wherein he had said that the Respondent never visited the Petitioner in the hospital or thereafter. Thus the Respondent had no occasion to commit the theft of the bills from the Petitioner or her father. Therefore it can be safely held that the Respondent bore the expenses of the Petitioner’s treatment in the hospital and he was not negligent in his responsibilities towards the Petitioner.
11. The Petitioner has not been able to adduce any evidence to support her contention of being neglected by the Respondent. Moreover there is no explanation rendered by the Petitioner as to why she did not inform her neighbour or any other person who allegedly removed her to the nursing home that she was thrown by the Respondent or his father. Further the fact that the Complaint under Sections 498A, 406, 307 & 34 IPC was filed by the Petitioner after about 17-20 months of the incident shows that the same was an after thought. The Respondent on the other hand has adduced evidence to show that he had not neglected to maintain the Petitioner and is even paying Rs. 3,000/- per month regularly as directed by the learned Additional District Judge vide the Judgment dated 26th May, 2007.
Crl. Rev.P. No.726/2010 Page 7 of 8
12. Learned Additional Principal Judge has considered all the relevant issues and scrutinize the matter. I do not find any infirmity in the Judgment dated 10th September, 2010.
The revision petition and the application are accordingly dismissed. (MUKTA GUPTA)
NOVEMBER 04, 2011
Crl. Rev.P. No.726/2010 Page 8 of 8
Equivalent citations: AIR 1999 SC 536, 1999 CriLJ 466, JT 1998 (9) SC 473
Bench: S Bharucha, F Uddin
Sudeep Chaudhary vs Radha Chaudhary on 31/1/1997
S.P. Bharucha, J.
1. Special leave granted.
2. The respondent-wife has been served by substituted service but does not appear.
3. The appellant-husband and the respondent-wife are estranged. The wife filed an application under Section 125 of the Criminal Procedure Code for maintenance which was awarded at the rate of Rs. 350/- p.m. with effect from 3rd July, 1990, and was subsequently enhanced to Rs. 500/- p.m.
4. In proceedings under the Hindu Marriage Act the wife sought alimony. It was granted at the rate of Rs. 600/- p.m. on 11th August, 1987, and the amount, thereof was subsequently enhanced to Rs. 800/- p.m.
5. Since the husband failed to pay the amount of maintenance as aforesaid, the wife started recovery proceedings. The husband contended that the maintenance amounts should be adjusted against the interim alimony and the Magistrate before whom the recovery proceedings were pending upheld the contention. The High Court, in the order which is under appeal, held that the Magistrate was in error in directing adjustment of the maintenance amount awarded under Section 125 of the Cr.P.C. against the amount awarded under Section 24 of the Hindu Marriage Act.
6.We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however not inclined to go into any detailed discussion of the law.
7. At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under Section 125 of the Cr.P.C. and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m. commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.
8. This order will be subject to such orders as may be passed at the stage of final disposal of the matrimonial proceedings.
9. The appeal is disposed of accordingly.
10. No order as to costs.