Allahabad High Court
Charan Singh vs Jaya Wati And Anr. on 12 July, 1995
Equivalent citations: I(1996)DMC169
JUDGMENT N.B. Asthana, J.
1. Smt. Jaya Wati-Opposite Party No. 1 who is admittedly the wife of the revisionist filed an application under Section 125 Cr.P.C. which was registered as Case No. 353/11 of 1985. This application was allowed on 13.11.1987 by 1st Judicial Magistrate, Meerut and Smt. Jaya Wati was granted Rs. 250/- per month as maintenance allowance.
2. In the year 1986 the revisionist fild an application under Section 9 of Hindu Marriage Act against Smt. Jaya Wati for restitution of conjugal rights. This application was registered as Petition No. 596 of 1986 and was decided by VIth Additional Civil Judge, Meerut on 25.2.1989. The petition was allowed and Smt. Jaya Wati was directed to live with revisionist and to perform her marital obligations. Aggrieved by this judgment and order Smt. Jaya Wati filed Civil Appeal No. 264 of 1989 which was dismissed on 9.9.1993 by VIIIth Additional District Judge, Meerut.
3. On 4.12.1992 Smt. Jaya Wati filed an application under Section 127(3) Cr.P.C. in the Family Court, Meerut for the recovery of Rs. 19,750/- as arrear of maintenance allowance. The revisionist filed an objection against this application stating that since his suit for restitution of conjugal rights has been decreed, Smt. Jaya Wati is not entitled for maintenance allowance. Learned Judge Family Court placed reliance upon the case of Sardar Surjeet Singh v. Smt. Rajendra Kaur [(1989), Allahabad Criminal Ruling, 575] and dismissed the objection of the revisionist vide his order dated 12.9.1994. The lower Court was of the opinion that inspite of the decree for restitution of conjugal rights, Smt. Jaya Wati was entitled to claim maintenance allowance. On behalf of the revisionist the case of Smt. Mahtab Begum v. Ansar Ahmad (A.W.C. 398,1986) was cited. According to this ruling, the wife is not entitled for maintenance allowance after decree for restitution of conjugal rights has been passed against her. Learned Judge Family Court was of the opinion that since this judgment was delivered subsequent to the judgment delivered in the case of Smt. Mahtab Begum, hence this judgment is binding upon it. The result was that the objection of the revisionist was dismissed. Aggrieved by this judgment, husband has come to this Court in revision.
4. I have heard learned Counsel for the revisionist and have perused the records. It has been argued on behalf of the revisionist that the Trial Court was not justified in ignoring the law laid-down in A.W.C. 1986 in preference to law laid - down in 1989 Allahabad Criminal Ruling, 575; Jaisri Sahu v. Rajdewan Dubey and Ors. (A.I.R. 1962, S.C. 83) and Avyaswami Gounder and Ors. v. Munnuswamy Gounder and Ors. (A.I.R. 1984, S.C. 1789) have been relied upon. In the first ruling it was held that, when a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
5. Law, will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other.
6. In the second ruling it was held that, where a Single Judge does not agree with earlier decision of Single Judge of same High Court, he should refer the matter to Larger Bench, propriety and decorum, do not warrant Single Judge's holding to the decision of same High Court." Reliance has already been placed upon in Sundarjas Kanyalal Bhathija and Ors. v. The Collector, Thane, Maharashtra and Ors. (A.I.R. 1990 S.C. 261) in which it was hold that:
"Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority."
7. In Sardar Surjeet Singh case (supra), the Court was of the opinion that if decree for restitution of conjugal rights is not obeyed by the wife, the husband at best is entitled to obtain decree for divorce. The explanation added under Section 125 Cr.P.C. entitles a wife who herself sought divorce or who is divorced by the husband to be entitled to claim maintenance allowance. The wife is entitled to claim maintenance allowance even if a decree of divorce has been passed. It would be of no justification and proper to disentitle her to claim maintenance allowance, when she can claim such maintenance allowance even, if decree of divorce has been passed, against her. The Court was of the opinion in Surjeet Singh case that it is only the neglect or refusal to maintain which becomes paramount consideration available to the Magistrate in a proceeding under Section 125 Cr.P.C.
8. The 1st Judicial Magistrate, Meerut, while deciding the application under Section 125 Cr.P.C. was of the opinion that the husband neglected and refused to maintain his wife and on that ground application was allowed. In the ruling reported in A.W.C. 1986, 398, it was not considered as to what would be the result in case the decree for restitution of conjugal rights is not obeyed, whereas in Sardar Surjeet Singh's case, the result of refusing to obey the decree of restitution of conjugal rights was also considered and noted that even if decree for restitution of conjugal rights is not obeyed wife cannot be deprived of the maintenance allowance. These points were not considered in the ruling reported in A.W.C. 1986, 398. This ruling is, therefore, clearly distinguishable. It was no apparent from the material placed on record that after obtaining decree of restitution of conjugal rights, the revisionist moved any execution application for getting it executed. The appeal was dismissed on 9.9.1993. More than 20 months have since passed but it does not appear that any step has been taken for getting it executed. It may be that decree for restitution of conjugal rights was obtained only with a view to deprive the wife from maintenance allowance to which she may be entitled. It would not be out of place to point out here that the petition for restitution of conjugal rights was filed in the year 1986 while application under Section 125 Cr.P.C. was filed in the year 1985 and from the judgment delivered in proceedings under Section 125 Cr.P.C. It would appear that according to the revisionist, Smt. Jaya Wati left his house in the month of August, 1985. The Court was however, of the opinion that the revisionist deserted her in the month of August, 1985. No petition for restitution of conjugal rights was filed before the date of the application under Section 125 Cr.P.C.
9. In view of the discussion made above, I am of the view that law laid-down in Sardar Surjeet Singh case is based on entirely different footing than the law laid- down in Smt. Mahtab Begum's case, as fresh points were argued and considered in case of Sardar Surjeet Singh's case while these points were not argued in Smt. Mahtab Begum case. In the circumstances it is neither necessary to refer the matter to larger Bench nor it can be said that because decree for restitution of conjugal rights in favour of the revisionist was passed and, therefore, in the facts and circumstances of the case Smt. Jaya Wati is not entitled to get her decree of maintenance executed. The execution Court rightly dismissed the objection filed by the rexisionist. The revision has no force and is accordingly dismissed at the admission stage.