Bombay High Court
Shri Namdeo Sheshrao Dinde, Medical ... vs Sau. Rekha W/O Namdeo Dinde on 28 March, 2008
Equivalent citations: 2008(110)BOM.L.R.1139
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
Page 1141
1. Heard.
2. Question involved in this petition is whether the conditional order of maintenance rendered as a result of settlement is executable or that it is only a term of an agreement, which can be considered in afresh proceeding of Criminal Application under Section 125 of the Criminal Procedure Code or may be in a Suit filed under Section 18 of the Hindu Adoption and Maintenance Act, 1956 ?
3. Undisputedly, the parties are husband and wife and are at logger heads. The marriage ties received set-back and, therefore, the wife filed proceedings under Section 125 of the Criminal Procedure Code (M.A. No. 120 of 2001). There took place compromise between the spouses. A Compromise Petition was filed on 21-02-2002. The husband agreed to pay maintenance allowance at rate of Rs. 5000/- p.m. in the event he would not maintain the wife after the settlement. The proceedings under Section 125 of the Criminal Procedure Code came to be disposed of as per the compromise though the terms of the compromise have not been incorporated in the final order rendered by the learned Magistrate. Needless to say, the agreement was between the spouses for payment of maintenance allowance and the amount was payable on failure of the husband to maintain the wife. The order is conditional, likewise decree nisi.
4. The wife filed application under Section 128 of the Criminal Procedure Code seeking enforcement of the term of the agreement. The learned Magistrate issued recovery warrant, rejecting the objection raised by the husband. The said order dated 13th May, 2005 is subject matter of challenge in this petition.
5. The tenor of final order rendered in the proceedings under Section 125 of the Criminal Procedure Code would explicitly indicate that the amount of maintenance was not payable immediately as per the agreement. The first condition was that if the wife was not maintained by the husband, then only she was entitled to recover such agreed amount. Obviously, it was necessary to prove that the husband declined to maintain her or refused to maintain her. Unless such precondition is fulfilled, the right of wife to claim maintenance allowance cannot be translated into action.
6. The conditional order of such kind, as is apparent in the present case, is outside the pale of Section 125 of the Criminal Procedure Code. The learned advocate for the petitioner would rely on "Jamini Mohan Debnath & Ors. v. Sukhlal Debnath 1994 (3) CRIMES 406", "Nathuram v. Smt. Ramsri " and "Smt. Bhanwari Bai v. Bheroon Lal 1973 CRI.L.J. 804", in support of his contention that such a conditional order is inexecutable in the exercise of powers under Section 128 of the Criminal Procedure Code.
Page 1142
7. On behalf of the respondent - wife, learned advocate Mr. Biradar, would strenuously argue that when the amount of maintenance is settled between the spouses, then it can be recovered under Section 128 of the Criminal Procedure Code. He seeks to rely on "Padmanabhan v. Bama 1988 CRI.L.J.1386", "Hashim Hussain v. Smt. Rukaiya Bano 1979 CRI.L.J.1143" and "Dagdubai Mohanrao Shinde v. Mohanrao Sajirao Shinde and Anr. 1996 (1) B.Cri.C. 111".... There is no difficulty in accepting the proposition laid down in these three (3) authorities. It is held that whenever a settlement is arrived and is accepted by the Court, in terms whereof, maintenance allowance is fixed, then it would be permissible to order recovery thereof or seek enhancement under Section 127 of the Criminal Procedure Code. The fact situation in these cases, however, was altogether different. The proceedings under Section 125 of the Criminal Procedure Code, if are terminated on strength of compromise terms which became part and parcel of the final order, then there is no difficulty in executing such an order. The settlement between the spouses, which is superimposed by the order of the Court, no doubt, becomes executable. Still, however, there is subttle distinction between such executable order and a term in the compromise petition which allows the maintenance allowance on fulfilment of certain conditions. The wife is entitled to claim such benefit on the ground that it is a part of the agreement, but surely, it is not the order rendered under Section 125 of the Criminal Procedure Code and, hence, cannot be executed under Section 128 of the Criminal Procedure Code. The impugned order, therefore, is unsustainable. The respondent - wife is at liberty to file afresh proceeding under Section 125 of the Criminal Procedure Code or to file a Suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956, as may be permissible and would be found desirable to her. She may claim interim alimony in such proceedings. The execution of the conditional order is, therefore, outside the pale of Section 128 of the Criminal Procedure Code.
8. In the result, writ petition is allowed. The Rule is made absolute. The impugned order stands quashed. No costs.