Madhya Pradesh High Court
Pankaj Varma vs Padma @ Payal Varma on 29 August, 2017
(1) CRR 1014/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Present :- Hon'ble Shri Justice G. S. Ahluwalia
CRR 1014/2015
Pankaj Verma
Vs.
Padma @ Payal Verma & Anr.
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Shri VK Saxena, Senior Counsel with Shri Aditya Singh,
counsel for the applicant.
Shri MK Chaudhary, counsel for the respondents.
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ORDER
(Passed on 29 /08/2017) This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 1-9-2015 passed by Principal Judge, Family Court, Ashoknagar in M.Cr.C. No.84/2015 by which the application filed by the respondents under Section 125 of Cr.P.C. has been allowed and the applicant has been directed to pay Rs.7,000/- per month to each of the respondents.
(2) The necessary facts for the disposal of the present application in short are that the respondents filed an application under Section 125 of Cr.P.C. alleging inter alia that the respondent no.1 was married to the applicant on 22-6- 2003 and the respondent no. 2 has born out of the wedlock. The respondent no.1 was kept properly in her matrimonial house for 1 to 1 and a half months of the marriage and thereafter the applicant and her in-laws started harassing the respondent no.1 and were passing taunts that less dowry has been given. The respondent no.1 informed her parents and brother about the demand of dowry and when her parents and brother expressed their inability to fulfill the demand of the applicant, then the applicant and her in-laws started beating and harassing the respondent no. 1. The respondent no.1 gave birth to the respondent no.2 on 7-8-2004. As the harassment of the applicant did not come to an end, (2) CRR 1014/2015 therefore, the respondent no.1 came to her parents house along with respondent no.2 in the month of August 2004 and from thereafter She is residing along with her parents. It was further alleged that the respondent no.1 has no independent source of income and is unable to maintain herself as well as unable to maintain respondent no.2. It was further alleged that the applicant is a jeweller and is running a jewellery shop. It was further alleged that during the pendency of the application under Section 125 of Cr.P.C., the applicant has remarried with one Lalitabai and a criminal case for offence under Section 494 of Cr.P.C. is pending against the applicant. Thus, it was prayed that the respondents are entitled for total amount of Rs.7000/- per month either Jointly or separetely. (3) The applicant filed his reply and denied the allegations. (4) The Trial Court after recording evidence and hearing both the parties, allowed the application and directed that each of the respondent is entitled for Rs.7000/- per month from the date of the application.
(5) Being aggrieved by the order of the Trial Court, the applicant has filed the present Criminal Revision. (6) Challenging the order of the maintenance passed by the Trial Court, the Counsel for the applicant has confined his arguments on two points. Firstly, that the respondents had demanded total amount of Rs. 7000/- per month either jointly or separately and therefore, the Trial Court has wrongly awarded the maintenance amount of Rs.7000/- per month to each of the respondent and secondly, as the applicant was not responsible for the delay in the disposal of the application, therefore, the Court below should not have directed the payment of maintenance amount from the date of the application.
(7) Per Contra, it is submitted by the Counsel for the respondents, that earlier, there was a cap of Rs. 500/- under Section 125 of Cr.P.C. which was enhanced to Rs. 3000/- by the State amendment and accordingly, in view of the maximum amount which could have been granted under Section 125 of Cr.P.C., a prayer was made for total amount of (3) CRR 1014/2015 Rs. 7000/- to both of the respondents. However, as the maximum limit of compensation which could have been granted under Section 125 of Cr.P.C. was omitted, therefore, the Trial Court did not commit any mistake in awarding the maintenance amount to the tune of Rs.7000/- per month to each of the respondent. Further, it is submitted that the maintenance amount has to be fixed considering the financial status of the parties and therefore, the Trial Court did not commit any mistake in awarding Rs.7000/- per month to each of the respondent. To buttress his contentions, the Counsel for the respondents relied upon U. Sree V. U. Sriniwas reported in (2013) 2 SCC 114; Neeta Rakesh Jain Vs. Rakesh Jeetmal Jain, reported in AIR 2010 SC 3540; Bhuwan Mohan Singh Vs. Meena and others, reported in AIR 2014 SC 2875; Piyushkant Sharma Vs. Smt. Pragati Sharma and another reported in 2010(1) MPWN 41, and Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak reported in 2009(1) MPLJ (Cri) 14.
(8) The moot question for determination in the present case is that whether the Court can award maintenance amount in excess of what has been claimed by the respondents in their application under Section 125 of Cr.P.C.?
(9) It is well established principle of law that while assessing the maintenance amount to be paid by the husband, the Court should keep in mind the status of the parties and further the wife who is unable to maintain herself cannot be asked to lead the life as a destitute. While considering the maintenance amount, the Court is required to take note of the fact that the amount of maintenance should be such as she can live in reasonable comfort considering her status and the life she was used to live in her matrimonial house. Similarly, the amount so fixed cannot be excessive.
(10) In the present case, the claim made by the respondents is important. In para 5 of the application, it is mentioned as under :-
''5.......bl eagxkbZ ds ;qx es vkosndtu dks de ls de 7000 :i;s ekgokj dh vko';drk vius Hkj.k iks"k.k gsrq gS ftlesa vkosfndk (4) CRR 1014/2015 ,oa mlds iq= ds jgus] [kkus ihus ,oa diMs vkfn ,oa vkosnd dzekad 2 ds vPNs ykyu iks"k.k ,oa mldh f'k{kk nh{kk djkus gsrq dqy feykdj 7000 Hkj.k iks"k.k ikus ds vf/kdkjh gSA ftls nsus es vukosnd iw.kZr% l{ke gSA'' The relief clause is as under :-
''vkosndtu dks ekuuh; U;k;ky; tks mfpr ik;s bl Hkh"k.k eagxkbZ es thou mi;ksxh vko';drkvksa dh iwfrZ o Hkj.k iks"k.k ds fy;s vkosndtu dks la;qDrr% ;k i`Fkd i`Fkd dqy 7000 :i;s ekfld Hkj.k iks"k.k dh jkf'k vkosndtu dks vukosnd ls fnyok;s tkus dh d`ik djsaA'' (11) Thus, it is clear that the respondents had claimed total amount of Rs.7000/- per month. From the the relief clause and the averment made in para 5 of the application, it cannot be inferred that the respondents had demanded Rs. 7000/- for each of the respondent. In the evidence, the respondent no.1 had claimed Rs.8000/- per month for each of the respondents.
(12) It is submitted by the Counsel for the applicant, that when the respondents themselves had demanded/claimed total amount of Rs.7000/- per month, then he cannot be taken by surprise by awarding double of the said amount.
Although for ascertaining or fixing the amount of maintenance, the status of the parties is one of the important aspect, but where the claimants/applicants themselves had limited their claim to a particular amount, then no maintenance amount in excess of the same can be granted. (13) As pointed out earlier, the respondents have claimed total amount of Rs. 7000/- per month. The Counsel for the respondents submitted that earlier, an amount of Rs. 500/- per month was provided under Section 125 of Cr.P.C. However, by State amendment, the State of Madhya Pradesh, enhanced the amount of Rs. 500/- per month to Rs. 3000 per month. Thereafter, by Central amendment, the cap of Rs. 500/- was deleted. Thus, under these circumstances, the Court below did not commit any mistake in awarding Rs.7000/- per month to each of the respondent.
(14) Initially, there was a cap of Rs. 500/- in Section 125 of Cr.P.C. However, the words "not exceeding Rs.500 in the (5) CRR 1014/2015 whole" were omitted vide Central Act 50 of 2001 w.e.f 24-9- 2001. The State Govt. by Madhya Pradesh Act 10 of 1998, had enhanced the amount of Rs.500/- per month to Rs.3000/- per month, thereafter by Act No. 15 of 2004, the upper limit was also omitted. The Supreme Court in the case of Manoj Yadav vs. Pushpa reported in (2011) 14 SCC 398 has held as under :-
''3. Respondent 1 by means of her criminal revision applied for enhancement of the maintenance. By the impugned judgment the High Court has granted a sum of Rs 4000 per month as maintenance with effect from 1-1-2009 to the Respondent 1 wife in this case. That order has been challenged before us.
4. The learned counsel for the appellant submitted that the amount which could be granted as maintenance under Section 125 CrPC in the State of Madhya Pradesh could at the most be Rs 3000 in view of the amendment to Section 125 CrPC by Madhya Pradesh Act 10 of 1998.
5. It appears that Section 125 CrPC has been further amended in Madhya Pradesh by a subsequent amendment by Madhya Pradesh Act 15 of 2004 which does not contain any upper limit in the maintenance to be granted under Section 125 CrPC and it is left to the discretion of the Magistrate. Hence, there is no substance in the submission of the learned counsel for the appellant. Moreover, we are of the opinion that after the amendment to Section 125 CrPC, which is a Central Act, by the Code of Criminal Procedure (Amendment) Act, 2001 which deleted the words "not exceeding five hundred rupees in the whole", all State amendments to Section 125 CrPC by which a ceiling has been fixed to the amount of maintenance to be awarded to the wife have become invalid.'' (15) In the present case, the application under Section 125 of Cr.P.C. was filed in the year 2007 i.e., much after the upper ceiling was deleted. Where the respondents had decided to limit their claim to the extent of total amount of Rs. 7000/-
per month, then the application cannot be read to mean that they had claimed Rs.7000/- per month for each of the respondents. When the respondents themselves have claimed (6) CRR 1014/2015 that they are in need of total amount of Rs. 7000 per month for meeting the expenses, then the applicant cannot be taken by surprise by awarding more than Rs. 7000/- per month. In the present case, the Trial Court has awarded total amount of Rs.14,000/- to the respondents by way of maintenance, which is more than what was claimed by the respondents. Thus, in absence of a prayer in that regard, award of maintenance amount of Rs. 7000/- per month to each of the respondents by the Trial Court is erroneous. The Trial Court could not have awarded more than total amount of Rs. 7000/- per month. (16) It is, next contended by the Counsel for the applicant, that the Trial Court committed material illegality by awarding maintenance amount from the date of application. (17) In the present case, the application was filed on 6-1- 2007. From the order sheets it is clear that the applicant could be served by publication and it took more than 1 and a half years to serve the applicant. On 18-10-2011, an amount of Rs. 2,500 was fixed by way of interim maintenance and the said order was challenged by filing Criminal Revision which too was dismissed by order dated 27-3-2012. Thereafter the case was fixed for recording of evidence. It also appears that the applicant did not pay the interim maintenance amount, and therefore, by order dated 22-8-2014, the applicant was directed to pay the arrears of interim maintenance and was directed to remain present in the Court. Thereafter, on 14-10- 2014, an amount of Rs. 5000 was paid to the respondent no.1 and a prayer was made that the applicant would pay the remaining maintenance in each installments of Rs. 10000/-. On 24-1-2015, the respondent no.1 and her witnesses were present but the matter was got adjourned by the applicant. With great difficulties, the applicant cross examined the respondent no.1 and her witnesses on 21-4-2015, on which date, the respondents closed their evidence. Thus, it is clear that all sorts of delaying tactics were adopted by the applicant to keep the matter pending. Even the interim maintenance amount was not paid.
(7) CRR 1014/2015(18) The Supreme Court in the case of Jaiminiben Hirenbahi Vyas Vs.Hirenbhai Rameshchandra Vyas reported in (2015) 2 SCC 385 it has been held as under :-
5. Section 125 CrPC, therefore, impliedly requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354(6) CrPC, the court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of the particular case.
6. In Shail Kumari Devi vs. Krishan Bhagwan Pathak (2008) 9 SCC 632 this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumari Devi (supra) this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such order. Thus, such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary.'' The Supreme Court in the case of Bhuwan Mohan Singh Vs. Meena reported in (2015) 6 SCC 353 has held as under :-
''16. In the present case, as we find, there was enormous delay in disposal of the proceeding under Section 125 of the Code and most of the time the husband had taken adjournments and sometimes the court dealt with the matter showing total laxity. The wife sustained herself (8) CRR 1014/2015 as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court.'' (19) Considering the totality of the Circumstances, this Court is of the view that the Trial Court did not commit any mistake in awarding maintenance amount from the date of the application i.e., 6-1-2007.
(20) However, this Court cannot ignore one disturbing fact in the matter. During the pendency of the application filed under Section 125 of Cr.P.C., it was alleged that the applicant has remarried and accordingly he was also facing trial for offence under Section 494 of Cr.P.C. Further, this Court by interim order dated 1-3-2016, had directed the applicant to pay Rs.
7000 per month to the respondents. However, it appears that the applicant did not pay the maintenance amount. On 1-4- 2016, the Counsel for the applicant had sought time to produce the receipt depositing the maintenance amount. Again, a statement was made by the Counsel for the respondents on 8-11-2016 that the applicant is not regularly depositing the maintenance amount. On 30-11-2016, the applicant sought time to produce the receipt. Thereafter, this Court by order dated 9-1-2016, had directed the applicant to deposit the entire arrears of maintenance within a period of one week and to submit the receipts. On 9-1-017, as statement was made by the Counsel for the respondents that the applicant has not paid the maintenance amount and after calculating the maintenance at the rate of Rs. 7000/- per month, a total amount of Rs.7,84,000 is payable. Again, time was sought to produce the receipts. Again, by order dated 30- 6-2017, the applicant had sought time to clear the dues. However, no receipts have been filed by the applicant. Thus, it is clear that in spite of the clear and repeated directions by this Court, the applicant has not paid the arrears of maintenance amount. Thus, it is directed that in case, (9) CRR 1014/2015 proceedings for recovery of the arrears of maintenance amount are initiated, then the same shall be decided by the Court below without considering the period of limitation. (21) Accordingly, this application is partially allowed. Instead of maintenance amount of Rs.7000/- per month to each of the respondents, it is directed that the respondent no.1 shall be entitled for Rs.5,000/- per month and the respondent no.2 shall be entitled for Rs. 2,000/- per month. (22) At this stage, the Counsel for the respondents seek permission to file an application under Section 127 of Cr.P.C. seeking enhancement of maintenance amount considering the hike in price of the goods of daily need as well as the educational expenses. As an application under Section 127 of Cr.P.C. can always be filed by any of the party for alteration of maintenance amount, therefore, no fresh permission is required.
(23) As the applicant has not paid the maintenance amount regularly, therefore, the cost of this litigation is fixed at Rs. 10,000/- which shall also be liable to be paid by the applicant to the respondents.
(24) With aforesaid modification in the order dated 1-9-2015 passed by the Family Court, Ashoknagar, the Revision succeeds and is partially allowed.
(G.S. Ahluwalia) Judge 29/08/2017 *MKB*