Gujarat High Court
Hansaben Rameshkumar Patani vs Rameshkumar Ratilal Patani And Anr. on 18 March, 1992
Equivalent citations: 1992CRILJ3688, I(1993)DMC544, (1992)2GLR1404
JUDGMENT J.N. Bhatt, J.
1. This revision application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973, ('Code' for short hereinafter) the petitioner-original applicant, wife, has questioned the legality and validity of the composite order passed by the learned Additional Sessions Judge, at Mehsana, on 30-10-19S5, in Criminal Revision Application Nos. 163 of 1984 and 74 of 1985.
2. The resume of the material fact giving rise to the present revision, may be. shortly stated at this stage so as to appreciate the merits of the present revision and challenge against it. The petitioner is the original applicant-wife. who initiated legal battle by filing a Criminal Miscellaneous Application No. 42 of 1982 in the Court of learned Judicial Magistrate First Class, at Patan. under Section 125 of the Code for her maintenance, against the respondent No. 1. Rameshkumar Ratilal Patani, who is the original opponents-husband. They are hereinafter referred to as "husband" and "wife" for the sake of convenience and brevity.
3. The marriage of spouses took place, on 29-5-1975, according to the Hindu rites, at Patan. The wife thereafter went to her husband's house at Mount Abu. where her husband was serving as an Officer at that time. On account of disharmony and dissatisfaction between the spouses, the wife went to the place of her parents. The husband instituted a petition for divorce against the wife under Section 13 of the Hindu Marriage Act in District Court, at Pali, in Rajasthan. The wife Hansaben resorted to the provisions of Section 125 by filing aforesaid application for her maintenance alleging that she is entitled to maintenance as she is neglected and refused maintenance by her husband. The husband resisted the same application. On perusal of the facts and circumstances and evidence, the learned Trial Magistrate was pleased to fix maintenance at the rate of Rs. 125/- per month by passing an order, on 27-5-1983. There is no dispute about the fact that High Court of Rajasthan in a divorce petition under the Hindu Marriage Act had also fixed an interim alimony at the rate of Rs, 125/- per month and had directed the husband to pay the same to the wife. The wife thereafter was constrained to file an application bearing No. 103 of 1983 for the enforcement of the maintenance order passed in her favour in Criminal Misc. Application No. 42 of 1982. It was filed, on 14-12-1983, under Section 125(3) of the Code. In which she has contended that her husband failed to comply with the order of maintenance and she claimed an amount of Rs. 750/- by way of arrears of maintenance and Rs. 60/- by way of cost of the maintenance application as awarded by the Trial Magistrate. Thus in all she claimed Rs. 810/- under Section 123(3) of the Code from her husband. After hearing both the parties the learned trial Magistrate was pleased to pass an order that opponent has to pay the maintenance amount as per the order passed under Section 125 of the Code, which reads as follows :
"Opponent has to pay the maintenance amount as per the order passed under Section 125 of Criminal Procedure Code. Sd/-
Judicial Magistrate First Class Patan"
Being aggreived by the said order of the learned Judicial Magistrate First Class, Patan. under Section 125(3) of the Code. The original opponent husband preferred a Criminal Revision Application No. 163 of 1984 in the Sessions Court at Mehsana. Later on he also challenged the maintenance order passed in Criminal Misc. Application No. 42 of 1982 by filing a Criminal Revision Application No. 74 of 1985.. The learned Additional Sessions Judge disposed of the aforesaid two Criminal Revision Applications filed by the respondent husband by passing a composite order, on 30-10-1985. As per the final order the learned Additional Sessions Judge at Mehsana allowed both the revision applications. He clarified the order of the learned Trial Magistrate in Criminal Misc. Application No. 42 of 1982 stating that applicant-wife is entitled to claim maintenance amount of Rs.125/-. However, the opponent husband will be entitled to set off any amount deposited in the Rajasthan Court or paid to the wife by the husband. Thereafter the learned J.M.F.C. at Patan was directed to dispose of the Criminal Misc. Application No. 107 of 1983 in the light of the order of that Court. It is this order that is, now, under challenge before this Court by the original applicant wife.
4. It appears that the clarification of the learned Additional Sessions Judge in the final order has created confusion. The clarification made by the learned Additional Sessions Judge in the final order as aforesaid is also not legal and valid. It was not open for the learned Additional Sessions Judge to clarify in the manner as it is done. Opponent husband would not be entitled to set off any amount deposited by him in Rajasthan Court or paid by him to the wife pursuant to an order passed under Section 24 of the Hindu Marriage Act by way of interim alimony in a divorce petition under Section 13 of the Hindu Marriage Act. It appears that the learned Additional Sessions Judge, with due respect to him, over looked the relevant provisions. An order under Section 125 of the Code for maintenance and an order under Section 24 of the Hindu Marriage Act, are distinct orders in separate proceedings. It is not open for Court under Section 125 to grant set off any amount paid by the opponent husband to the wife or deposited in any Court against the substantive order passed under Section 125 of the Code. Order under Section 24 of the Hindu Marriage Act is for interim alimony which would terminate on termination of the proceedings. Order under Section 125 of the Code is substantive order which can be terminated or altered only in the light of the provisions under Sec-125(3) or under Section 127 of the Code. Mere passing of an order under Section 24 of the Hindu Marriage Act for interim alimony would not operate as set off against the order of maintenance under Section 125 of the Code. There can be no difficulty on the part of the wife for pursuing remedies under both the provisions simultaneously. This proposition of law is very well settled. It appears that the attention of the learned Additional Sessions Judge was not drawn to this proposition of law. The nature of the respective case in both these proceedings are different. Under Section 24 of the Hindu Marriage Act, the concerned spouse has only to show that be or she has no independent source of income sufficient for his or her maintenance. Once this as shows, interim alimony can be awarded, keeping in mind the economic status and conditions of the respective parties. While in so far as the provision under Section 125 of the Code are concerned only one spouse, namely, the wife would be entitled to maintenance. She can be awarded maintenance if she can show that she has no independent sources of income of her own. Of course, she has to show that she is refused and neglected maintenance by her husband and her husband has sufficient means to maintain her. In the facts and circumstances both the proceedings could be pursued by the wife and there is no ban or bar in any one of the provisions unlike provision under Section 10 of the Civil Procedure Code, whereas, subsequent proceedings can be stayed if conditions under Section 10 are established.
5. Therefore it is always open for the wife to pursue both the remedies. The maintenance order passed in Criminal Misc. Application No. 42 of 1982 by learned J.M.F.C. Patan fixing maintenance at the rate of Rs. 125/- per month in favour of the wife is passed after considering the facts and circumstances of the case and especially the fact that interim alimony of Rs. 125/- was passed under Section 24 of the Hindu Marriage Act. The amount of maintenance awarded to the wife at the rate of Rs. 125/-per month cannot be said to be unreasonable or unjustified. Wife is entitled to get the maintenance order enforced under the provisions of Section 125(3) of the Code. The maintenance amount was not paid as ordered by the Court and it was in arrears, and, therefore, wife was constrained to initiate enforcement proceedings by filing Criminal Misc. Application No. 107 of 1983 in respect of the amount of Rs. 810/-. The learned trial Magistrate was pleased to pass an order for enforcement of maintenance order under Section 125(3) of the Code on 15-9-1984 below Ex. l.of the said application for recovery of arrears of maintenance. Several contentions were raised on behalf of the opponent husband and they were all rejected. It was also contended that the wife was awarded interim alimony under Section 24 of the Code by the District Court at Pali in Rajasthan and therefore, application for enforcement of arrears of maintenance should not be granted. It was also contended in that proceedings that in view of the pendency of the proceedings between the parties no order may be passed. Having examined and considered rival contentions the order in application for enforcement for the arrears of maintenance, was passed. It was observed by the learned trial Magistrate that unless and until order under Section 125 of the Code is altered or modified the trial Magistrate Court can proceed for enforcement of the maintenance order. This view of the learned trial Magistrate appears to be fully justified. In fact the maintenance order fixing quantum at the rate of Rs. 125/- per month against the husband was passed considering all the relevant facts and circumstances including the factum of passing of interim alimony under Section 24 of the Hindu Marriage Act.
6. Unfortunately, the learned Additional Sessions Judge while, making an attempt to clarify the order of maintenance created confusion which has resulted into miscarriage of justice. The Direction of the learned Additional Sessions Judge that wife will be entitled to only maintenance at the rate of Rs. 125/- it justified. However, the clarificatory direction that the said amount of Rs. 125/-will be subject to payment of any amount to the wife or any deposit of any amount in the Rajasthan Court is not justified. The observation of the learned Additional Sessions Judge that any amount deposited by the husband in the Rajasthan Court or any amount paid to the wife by the respondent pursuant to the order of interim alimony under Section 24 passed by the District Court at Rajasthan will be set off against the payment of Rs. 125/- per month fixed in Criminal Misc. Application No. 42 of 1982 is neither legal nor justified. Therefore. that part of the order of the learned Additional Sessions Judge is required to be quashed.
7. It is a settled proposition of law that unless and until the order of maintenance passed under Section 125 of the Code is varied, altered or set aside under the provisions of the Code, it is not open for the husband to contend that be is not 1iabb to make payment of maintenance allowance. The learned Additional Sessions Judge has not applied his mind to the settled legal proposition. An application for enforcement of maintenance allowance is not an application for execution. As such it is the duty of the Court to see that its order of maintenance under Section 125 of the Code is complied with unless and until that order is modified or altered or set aside in the competent proceedings under the provisions of Section 125(4)(5) and/or under Section 127 of the Code. It is also settled proposition of law that any defence against an order passed under Section 125 of the Code ought to be founded on a provision in the Code. Section 125 of the Code is devised and designed to protect the weaker of the two parties, namely, the rejected or dejected wife. There can be no any other dispute about the settled proposition of law that if an order for maintenance has been passed under Section 125 of the Code, against the deserter it shall be binding and operating until it is altered or vacated in terms of the provisions of the Code itself. Code is complete on the topic and any defence against an order passed under Section 125 of the Code must be founded on a provision in the Code itself. Until that is done it is enforceable and no plea that there has been change in circumstances of passing of any order under Section 24 of the Hindu Marriage Act or any other plea can be permitted to be raised. This proposition of law is very well settled and the view of this Court is very much reinforced by the decision of the apex Court in the case of Bhupinder Singh v. Dalit kaur, reported in AIR 1979 SC 442.
8. A statutory order can ordinarily be demolished or disturbed only pursuant to the provisions of the statute itself. In the present case the contention of the wife stands on a higher pedestal. The contention that wife is not entitled to double maintenance was seriously considered by the trial Magistrate in Criminal Misc. Application No. 42 of 1982 before fixing up the amount of Rs. 125/- per month under the provisions of Section 125 of the Code Such a contention was not open or permissible to be raised. Rightly, it was not accepted by the learned Trial Magistrate and. unfortunately it was wrongly considered and accepted by the learned Additional Sessions Judge. That being the position in the present case, the learned Trial Magistrate was competent to pass order for the enforcement under Section 125(3) of the Code in respect of the arrears of maintenance plaint in Criminal Misc. Application No, 107 of 1983. However learned Additional Sessions Judge committed serious error by observing and directing that the amount of maintenance under Section 125 of the Code, fixed by the Trial Magistrate at the rate of Rs. 125/-per month shall be set off and subject to any payment or deposit by the husband in the Rajasthan Court pursuant to the order passed in interim alimony under Section 24 of the Act. Such direction is patently illegal and is required to be quashed.
9. In the facts and circumstances of the present case the order of the learned Trial Magistrate for enforcement of maintenance order in Criminal Misc. Application No. 107 of 1983 was fully justified. In proceedings for enforcement of an order for maintenance the person against whom the order has been passed is not entitled to challenge the correctness or otherwise of the order, unless and until modification, variation or cancellation is made under the provisions of the Code by taking recourse to statutory proceedings.
10. An order for payment of maintenance may be cancelled for any other reasons contained in Sub-section (5) of Section 125. So under Section 125 such an order can be varied or even cancelled on the grounds mentioned therein but as long as such an order is subsisting there are on no ground the respondent could be allowed to object the enforcement of the maintenance order. It appears that the learned Additional Sessions Judge committed serious error in passing impugned order in Crl. Misc. Application Nos. 163 of 1984 and 74 of 1985.
11. With the result the said order of the learned Additional Sessions Judge is required to be quashed. The original complainant-wife will be entitled to pursue the legal remedy available to her for enforcement in the Court. In the facts and circumstances, the Criminal Misc. Application No. 107 of 1983 for the enforcement of the maintenance order filed by the wife shall revive. The learned J.M.F.C. at Patan will proceed with the said application in accordance with law. Obviously, it will also be open for the wife to pursue appropriate legal remedies for the enforcement of an order of interim alimony under Section 24 of the Act, passed in her favour in Rajasthan Court against the husband by taking appropriate proceedings before the competent Court. It need not be emphasised that an application for enforcement of arrears of maintenance under Sec 125(3) of the Code will not be a ban or bar for recovery of the amount of interim alimony by the wife from the husband by invoking the aids of the appropriate legal remedies before the competent Court.
12. In view of the aforesaid observations the present Criminal Revision Application is allowed. The impugned common order passed by the learned Additional Sessions Judge in Criminal Misc. Application Nos. 163 of 1984 and 74 of 1985 is quashed. The learned J.M.F.C. at Patan is directed to proceed with the proceedings of Criminal Misc. Application No. 107 of 1983 in accordance with law as expeditiously as possible, in view of the long standing pendency of dispute between the parties. Rule made absolute.
13. The office is directed to transmit the record and proceedings to the Court of learned J.M.F.C. at Patan immediately so that the further proceedings can be taken in the Trial Court.