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Madhya Pradesh High Court

Ashok Chand Kothari vs Smt. Alpana on 27 March, 2023

Author: Vishal Dhagat

Bench: Vishal Dhagat

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                           WRIT PETITION No. 5838 of 2021

                          BETWEEN:-
                          ASHOK CHAND KOTHARI S/O SHRI LABH CHAND
                          KOTHARI, AGED ABOUT 60 YEARS, OCCUPATION:
                          BUSINESS NAVAKAR TRADERS KOTHARI CORNER
                          KHAJANCHI MARKET BEAWAR DISTT. AJMER
                          RAJASTHAN (RAJASTHAN)



                                                                                            .....PETITIONER
                          (PETITIONER IS PRESENT IN PERSON )

                          AND
                          1.    SMT. ALPANA D/O KEWAL CHAND BAFNA, AGED
                                ABOUT 51 YEARS, NAVAKAR TRADERS KOTHARI
                                CORNER KHAJANCHI MARKET BIAVAR DISTT.
                                AJMER RAJASHTAN AT PRESENT R/O KEWAL
                                CHAND WAFNA MAIN ROAD HARDA (MADHYA
                                PRADESH)

                          2.    ANUJ S/O ASHOK CHAND KOTHARI, AGED ABOUT
                                18    YEARS, NAVAKAR TRADERS KOTHARI
                                CORNER     KHAJANCHI   MARKET     BIAVAR
                                DISTT.AJMER AT PRESENT KEWAL CHAND
                                WAFNA MAIN ROAD HARDA (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                          (BY SHRI SHASHANK VERMA - ADVOCATE FOR RESPONDENT NO.1)

                                Reserved on:        28/02/2023
                                Pronounced on: 27/03/2023
                                This petition having been heard on admission and reserved for orders,
                          coming on for pronouncement this day, the court pronounced the following:
                                                           ORDER

1. Petitioner has filed this writ petition under Article 226 of the Constitution of India challenging order dated 13.2.2021 contained in Annexure P/1 passed in Signature Not Verified Signed by: ARVIND KUMAR DUBEY Signing time: 3/28/2023 12:22:29 PM 2 MJC No. 151/2015 by Principal Judge, Family Court Harda District Harda.

2. Trial Court vide order dated 29.1.2021 directed petitioner to deposit interim maintenance of Rs. 14,66,000/- which is to be paid to respondents. Trial court further gave reference to order dated 17.2.2020 passed in M.Cr.C. no. 10466/2017 by which direction was given to petitioner to pay interim maintenance. Further direction was given in Criminal Revision No. 1772/2014, M.Cr.C.Nos. 16359/2014 and 13132/2014 dated 17.2.2020. In Criminal Revision No. 1772/2014, M.Cr.C. Nos. 16359/2014 and 13132/2014 by order dated 17.2.2020 direction was given to take strict action if petitioner do not pay maintenance. Petitioner has not challenged the order dated 29.1.2021 passed by Family Court. By interim application, prayer was made for staying the payment of amount. Court arrived at finding that I.A.No. 5 was only filed so that execution of orders of payment f or maintenance amount can be stalled. In view of the aforesaid facts, application I.A. No.5 was dismissed and order was passed to issue attachment and auction warrants against petitioner.

3. Counsel for the petitioner submitted that Court below failed to take into consideration the change circumstances. Warrant for recovery of amount for more than one year is contrary to law. Order passed by trial Court is a non speaking order. Warrant for recovery of Rs. 14,66,000/- cannot be issued as maximum amount of one year maintenance granted to respondent no.1 is Rs.

1,20,000/- and t o respondent no.2 is Rs. 78,000/-, total comes to Rs. 1,98,000/-. Hence, warrant issued for recovery of more than aforesaid sum is unsustainable in eyes of law and same deserves to be set aside. It is also argued that no finding has been given regarding the fact that whether an amount of Rs.

1,73,000/- which has been deposited by petitioner as a cheque has been adjusted or not. In these circumstances, impugned order may be set aside.

4. Counsel for the respondents supported the order passed by trial Court. It is submitted order by trial Court is passed as per order of High Court wherein it was held that petitioner is required to pay interim maintenance and application is means to delay the process of execution. Order passed by Family Court is a well reasoned order and, therefore, writ petition may be dismissed.

5. Heard learned counsel for the parties.

6. Controversy between the parties is settled by this Court in M.Cr.c. No. 10466/2017 by order dated 17.2.2020. Said order has been referred to by the trial court in the impugned order. Relevant part of the said order i.e. para 2 is quoted below:-

Learned counsel for the respondents has submitted that the petition is misconceived. Number of petitions are filed before to create confusion. Actually matter is plain and simple. Learned JMFC directed husband to pay interim maintenance amount Rs.10,000/- per month to his wife Alpana and Rs.5000/- per month to son Anuj by order dated 16.1.2008. Said order was set aside by the Session Judge, Harda in Criminal Revision No. 28/08 by order dated 7.7.2008. This order was challenged in Criminal Revision Nos. 1344/08 and 1345/08 before High Court. Revisions were disposed of by order dated 11.11.2010 in the following terms:-

Applicant Smt. Alpana Jain has filed by a case u/s 125 of Cr.P.C. against respondent no. 1. Learned Magistrate vide order dated 16/01/08 granted Rs.10,000/- to Smt. Alpana Jain and Rs.5000/- to son Anuj Jain towards interim maintenance from Signature Not Verified Signed by: ARVIND KUMAR DUBEY Signing time: 3/28/2023 12:22:29 PM 4 respondent. Thereafter, a revision was filed before Session Judge who quashed the order dated 16/01/08 and directed trial court to pass appropriate order after taking evidence on merits hence, these petitions have been filed on the ground that if order of interim maintenance is passed after taking evidence then the very purpose of interim maintenance will be defeated. Learned counsel for respondent Shri Dixit has stated at bar that they will deposit total Rs.10,000/- for each of the applicants (Smt. Alpna Jain and Anuj Jain) from 16/01/2008. He further submitted that a FDR of Rs.2,50,000/- is also submitted before JMFC. Counsel for respondent assured that within 30 days from today he will deposit the total amount of interim maintenance from 16/01/08 to 30/11/2010 at the rate of Rs.10,000/-.

The aforesaid order was modified vide order dated 4.2.2011 in M.Cr.C.No.1440/2011 in the following terms :-

The applicant has filed this M.Cr.C. for modification of order dated 11.11.2010 passed by this Court in Cr.R. No.1344/2008 and Cr.R. No.1345/2008. Learned counsel for the applicant has submitted that due to typographical error in third para of first page of the order dated 11.11.2010 each has been typed after the amount of Rs.10,000/-, therefore, the same may be deleted.

Court directed that in second line of para 3 of the order dated 11.11.2010 in pace of total Rs.10,000/- for each of the applicants be read as total Rs.10,000/- for the applicants. This order shall be treated as part of the order dated 11.11.2010. Prayer regarding depositing of half amount was rejected.

With the aforesaid direction, M.Cr.C. No.1440/2011 was disposed Signature Not Verified Signed by: ARVIND KUMAR DUBEY Signing time: 3/28/2023 12:22:29 PM 5 of.

Court held that there is no ambiguity in the order and the petitioner is bound to pay interim maintenance till the disposal of the case and the case has been finally disposed of by the Magistrate by order dated 26.6.2013 directing to the petitioner to pay the maintenance amount from the date of the order. Therefore, till 25.6.2013 the petitioner is bound to pay interim maintenance amount in compliance to the order dated 11.11.2010 passed by this Court. Petition was dismissed directing the petitioner to pay remaining amount of maintenance.

7. In para 2 of the said order, it has been held that there is no ambiguity in the order and petitioner is bound to pay interim maintenance till disposal of the case and case has been finally disposed off by Magistrate by order dated 26.6.2013 directing petitioner to pay amount from the date of order. Therefore, till 25.6.2013 petitioner is bound to pay interim maintenance amount in compliance to order dated 11.11.2010 passed by this Court. Direction was given to petitioner to pay remaining amount of maintenance. Further in para 4 of the said order, it has been held that petitioner is entitled to pay interim maintenance amount from 16.1.2008 to 25.6.2013. Sum of Rs. 1,73,000/- has already been deposited by petitioner and rest of the interim maintenance amount is due to be paid to respondents.

8. Hon'ble Supreme Court in case of Shanta @ Usha Devi and another Vs. B. G Shivananjappa reported in (2005) 4 SCC 468 has held that successful party in maintenance proceedings can file an application for getting arrears of maintenance of one year from the date of filing of application. If application is pending and further amount is not paid then there is no need to file fresh application and the amount till disposal of the application be recovered on basis of pending application. Writ Petition No. 10466/2017 disposed off vide order dated 17.2.2020 and held in para 6 as under :-

"6. Hence, in view of the aforesaid circumstances, this petition is disposed of clarifying that interim maintenance amount is due till the date i.e. 25.6.2013 as Signature Not Verified Signed by: ARVIND KUMAR DUBEY Signing time: 3/28/2023 12:22:29 PM 6 on 26.6.2013 final order was passed and the amount is payable according to the aforesaid order which has been finally upheld with some modifications of this court in criminal revision No.1772/14; M.Cr.C. No.16359/14 and M.Cr.C.No.13132/2014. The amount which has been paid earlier by the petitioner is adjustable and rest of the amount is recoverable to the extent of one year back of the date of filing of the application for recovery of the due amount and the amount which is due from the date of filing of the application till the due date i.e. 25.6.2013. Learned Family court, Harda is directed to conduct the proceeding of the case in the aforesaid manner keeping in mind the aforesaid judgment of the Apex court."

9. On perusing the provision of Section 125(3) Cr.P.C., it is clear that warrant is to be issued for levying the amount due in the manner provided for levying of fines. Person can be sentenced for whole or any part of each months allowance for maintenance or interim maintenance to imprisonment for a term which may extend for one month or till payment if sooner made. Warrant shall be issued for recovery amount due under Section 125(3) of the Cr.P.C. if application is filed within a period of one year from the date when maintenance or interim maintenance became due.

10. Trial Court can issue warrant for levying of fine for arrears of one year from due date and not beyond that. However, there is no limitation for recovery of defaults made for payment after filing of the application. During pendency of application all successive defaults can be recovered. Court can issue warrant for recovery of all maintenance amount for successive defaults after filing of application and limitation of one year will not be applicable.

Trial Court has merely complied with the orders passed by High Court in execution. Order passed in M.Cr.C.No. 10466/2017 has become final. For successive defaults during pendency of execution of order for payment of maintenance there will be not bar of one year and provisions of Section 125(3) of Cr.P.C. does not bar for recovery of same.

11. Writ Petition is dismissed.

(VISHAL DHAGAT) JUDGE DUBEY/-