Admission of dues of maintenance cant be contempt

                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   MISC.CIVIL APPLICATION - FOR CONTEMPT No. 1308 of 2006
                               SPECIAL CIVIL APPLICATION No. 8143 of 2005

USHABEN CHANDUBHAI RAVAT & 1 - Applicant(s)

Versus

CHANDUBHAI BHIKHUBHAI RAVAT - Opponent(s)

Appearance: MR MR PRAJAPATI for Applicant(s) : 1 - 2. MR
HARSHADRAY A DAVE for Opponent(s) : 1,

CORAM: Hon’ble Mr. Justice D.A.Mehta & Hon’ble Mr. Justice Z.K.Saiyed

Date: 27/03/2008

ORAL: ORDER (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED)

1. The applicant has preferred this application seeking initiation of contempt proceedings against the opponent and after holding the opponent guilty of deliberate and willful disobedience of order dated 18.2.2006 made in Special Civil Application No. 8143 of 2005, punish the opponent.

2. Heard the learned advocate Mr. MR Prajapati for the applicants and Mr HA Dave for the opponent.

3. Both the parties are husband and wife. Due to constant harassment, the applicant no. 1 started to live separately with opponent no. 2 and after living separately from opponent, it was difficult for the applicant no. 1 to survive with minor daughter Yuti ? applicant no. 2 herein, and therefore, applicant no. 1 has filed Special Civil Suit No. 54 of 2001 before the 5th Jt. Civil Judge(JD), Junagadh, for getting maintenance amount of 36 months under section 18 and 20 of the Hindu Adoption and Maintenance Act, which was partly allowed on 8.10.2003 against which the opponent had preferred First Appeal No. 361 of 2004 before this Court which was withdrawn on 26.10.2004. It appears that during the pendency of the First Appeal, due to non-compliance of the order dated 27.2.2004, the applicant had initiated contempt proceedings against the opponent by filing Misc. Civil Application No. 1598 of 2005 but it was rejected on 23.8.2005. That after withdrawal of the First Appeal, the applicant no. 1 has initiated execution proceedings against the opponent in the trial court by filing Special Darkhast No. 2 of 2004 and after hearing both the parties, the trial court issued attachment warrant against the opponent. Against the order of attachment warrant, the present opponent has approached this Court by filing Special Civil Application No. 8143 of 2005 and obtained stay against execution proceedings. That after hearing learned advocates of both the parties, this Court has passed an order directing the opponent to pay an amount of Rs. 1 lac to the applicant on 24.10.2005. That before granting interim relief to the applicant, this Court has invited calculations regarding amount of maintenance from both the sides and after going through the said calculation, this Court has passed the said order dated 24.10.2005. In the above Special Civil Application No. 8143 of 2005, on 18.2.2006,this Court has passed the order, which reads as under:
1.Husband, petitioner is directed to pay Rs. 6000/- between 1st to 10th date of every month. The husband is directed to pay remaining amount i.e. Rs. 5,51,754/- within one month from the date of receipt of the writ.  If the husband neglected to pay the amount, then he will have to pay 12% interest on the same.??

 4. Despite the above order passed by this Court, the present opponent has not complied with the said order, therefore, the applicant has issued legal notice to the opponent but as the opponent is alleged to have deliberately and willfully disobeyed the order of this Court dated 18.2.2006, the contempt proceedings was launched against the present opponent.

5. After hearing the learned advocates appearing for both the sides, opponent has filed the statement of the amount paid to the applicant and the amount due to be paid, on page No. 33 of this application. We have perused the said statement. In view of the statement, the applicant no. 1, who is staying at Junagadh, has sent a letter and clarified all due amount and has contended in paragraph-2 of her letter that due to unavoidable circumstances, that is, examination of her daughter, she was unable to come before this court, but if, the Court is required to hear the applicant no. 2, she is ready to come before this court.

6. We have gone through the contents of the letter of applicant no. 1 and read the reply of opponent, it appears that there is delay in complying with the order passed by this Court, but from the contentions it appears that every person has a right to utilise the provisions of law. In the present case, opponent had challenged the order of the legal fraternity and try to get some justice in her favour. The conduct of the present opponent shows that when a person is utilising the provisions of law, then, none can say that he has disobeyed the order passed by this Court. From the statement in affidavit dated 9.3.2008 produced by the opponent, it appears that he has admitted all dues but from the said admission, it cannot be said that he has committed the contempt and willful disobedience of the order of this Court.

7. From the aforesaid discussion, it appears that the goal of the applicant which is fulfilled by opponent’s statement, then there is nothing on record to say that the opponent has disobeyed the order of this Court.

8. In view of aforesaid reasons, the present application is disposed of. No order as to costs. Notice discharged.

 (D.A. MEHTA, J.)

 (Z.K. SAIYED, J.)

Divorced women cant use x-name

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner
Mr. Milind N. Jadhav i/b Mr. Sagar
G. Talekar for the Petitioner.

Vs.

Dadasaheb Bandu Shewale .. Respondent
Mr. R. T. Lalwani for the Respondent.

Bench: R. S. Dalvi
CORAM : MRS. R. S. DALVI, J.
DATE : 17TH FEBRUARY, 2010

JUDGMENT:

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife's application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband's name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :
ORDER III :
1. Appearances, etc., maybe in person, by recognized agent or by pleader. - Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
(emphasis supplied)

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression "appearance, application or act in or to any Court". This is so because, the right of audience in Court, the right to address Court, the right to examine and cross-examine the witnesses are dealt with in other parts of Civil Procedure Code and not under Order 3. It was further held right of audience in Court is a part of pleading in Court and not "acting" as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be "appearing, applying or acting" on his behalf.

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression "practice" is wider than the expression "plead". Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties' constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner's life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

No interim maintenance to wife in DV for working in the past - DAMAN REET KAUR Vs INDERMEET SINGH JUNEJA

    
    IN THE COURT OF MS. POOJA TALWAR METROPOLITAN MAGISTRATE
                              (MAHILA COURT – SOUTH EAST DISTRICT)
                                SAKET COURTS COMPLEX. NEW DELHI
                                                     CCINOI 352/3
In the matter of: -

DAMAN REET KAUR….. .. . …. .. …… COMPLAI NANT

VS.

INDERMEET SINGH JUNEJA…….. ……. … RESPONDENT

DATE OF ORDER – 18.11.2010

ORDER ON INTERIM MAINTENANCE U/S 23 OF D. V. ACT

1. I shall dispose of an application filed for interim maintenance under Section 23 Protection of Women under Domestic Violence Act, (henceforth referred to as the D. V. Act).

2. The complainant has alleged that she has been subjected to various forms of domestic violence by her husband, the respondent. It has been argued that the respondent is working with Pitney Bose Software Company in Sector — 63, Noida and drawing an annual salary of Rs. 20 lacs per annum. Besides this, it is also argued that he is running a profitable business of computer software in a partnership along with his friend. Ld counsel for the complainant has prayed that the complainant is facing extreme hardship as the parties are habitual of enjoying a lavish life style, and therefore, suitable maintenance may be granted for food, clothing, residence apart from other basic necessities in accordance with the standard of living of the parties such as decent education of the child, clothes and toiletries of the child, her vaccination, maid servant and her expenses, car petrol and maintenance charges, mobile bills, electricity, water expenses and suitable Life Insurance Policies etc.

3. To support their averments both the parties have placed their salary slips on record. The complainant has also placed his ITRs for the last two years where his income is depicted to be approximately Rs. 14 lacs per annum.

4. In reply, Id counsel for the respondent has vehemently denied that any form of Domestic Violence has been ever committed upon the complainant. As regards the income, it has been denied that he is earning Rs. 20 lacs per annum and admitted that his monthly income is Rs. 85,000/- per month and also submitted that the complainant is presently working with Metlife and getting more than Rs. 50,000/- per month income and therefore, she is not entitled to get any maintenance as she is earning sufficiently to sustain herself.

5. The present application has been filed under Section 23 of the Domestic Violence Act for grant of maintenance. It would be essential to mention here that earlier application under Section 23 was filed along with main petition in which monetary relief was not claimed where as in the present application which is again filed under the same Section in which the monetary relief has been claimed. It has been objected to by the respondent in the reply to the application that the same does not lie and the application should have been filed under Section 25 (2) of D. V. Act. Without going into the technicalities, the application may be read as an application under the relevant provisions of the D. V. Act.

6. I have heard the submission advanced by counsels for both the parties. It has been stated by the counsel for the complainant that the complainant has all along been very fair and honest in her complaint by submitting that she was working and had means to sustain herself. She has not filed application for grant of interim maintenance for herself as she was earning sufficiently to maintain herself and take care of her daily needs but today the situation has changed and she is jobless and totally dependent on the mercy of her old and ailing parents.

7. The present application has been strongly opposed by the counsel for the respondent with a catena of judgements showing that having a capacity to work and choosing not to work is no ground for grant of maintenance, as, admittedly the complainant is well educated lady who has been earning approximately Rs. 50,000/- per month from her last job. If she has chosen not to work out of her own sweet will she cannot be permitted to take advantage of her own deed. In one of the judgments filed by the respondent it is well-established maxim of Anglo Saxon jurisprudence that ‘no person can be allowed to incapacitate himself”. The gist of all the judgments filed by the respondent is that when the complainant is an able bodied person having capacity to earn and has actually been earning in the past is not entitled to receive any maintenance. When she could sustain herself by earning handsome salary in the past she would be able to get a job if she earnestly tries to search one.

8. As regards the maintenance of the child, the respondent has conceded that he is ready and willing to bear the expenditure of the child by accepting the fact that he is equally liable to maintain his child as her mother is.

9. Pursuant to what has been stated by both the counsels for the parties, I am of the view that although the complainant has been working in the past but the situation today is that she is not earning and that she has no money to sustain herself but then it cannot be denied that she is in a capacity to work and with earnest effort she shall be able to search a suitable job for herself.

10. As far as the maintenance of the child is concerned, since she is not the petitioner in the present complaint I would not be able to pass any orders as regards the maintenance for the daughter of the parties. Since the respondent has conceded to the fact that he is ready to maintain the child, he can do so voluntarily of his own accord.

11. As far as the maintenance of the complainant is concerned I am not inclined to pass any orders for maintenance.

12. Accordingly, the present application is disposed of.
Announced in the open Court on 18.11.2010

No maintenance to wife - interim maintenance cancelled - Poonam Khanna Vs V P Sharma & Anr

                           IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           + CRL.M.C. No.2602/2010
                                                 % Judgment reserved
                 Dated: 06th January, 2012 Judgment delivered on:30th January, 2012


POONAM KHANNA      ..... Petitioner
                                          Through : Petitione r in person.

                                      versus

V P SHARMA & ANR      .... Respondents
                                          Through : Respondent No.1in person.
                                                          Mr.Navin Sharma, APP for State/R-2.

CORAM:

HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.

1. Instant petition is being filed under Section 482 Cr.P.C. against the impugned order dated 29.07.2010 passed by learned Additional Sessions Judge, whereby the revision petition of respondent No.1 was allowed and the order dated 23.01.2010 passed by learned Magistrate granting interim maintenance to the tune of ` 5,000/- per month to the petitioner was set aside.

2. Being aggrieved, on 24.02.2010, respondent No.1 filed Revision Petition No.19/2010 u/s 397 Cr. P.C. seeking dismissal of interim order of maintenance. The same was disposed of vide impugned order dated 29.07.2010 while setting aside the interim maintenance and allowed the revision petition of respondent.

3. It is pertinent to mention that petitioner and respondent No.1 both are appearing in person.

4. Petitioner has raised the issue that as per the settled law, the interlocutory order being the interim maintenance order cannot be challenged by way of revision petition under Section 397 Cr. P.C. Secondly, she has raised the issue that learned Additional Sessions Judge, while setting aside the order passed by learned Magistrate has ignored the fact that on the presumption that respondent may be able to prove the means of petitioner in future by placing additional material on record, which is against settled law that the interim maintenance must be decided on the material available on record and not on the hypothecation that the material likely to be adduced at the time of evidence.

5. Further petitioner has submitted that in Revision Petition No.19/2010, learned Additional Sessions Judge, has not considered this fact that petitioner being the wife of respondent is unemployed and is not earning her livelihood. Learned Additional Sessions Judge, has ignored the submission made by petitioner that the respondent / husband is having rental income from the properties.

6. Vide order dated 23.01.2010, interim maintenance was awarded in favour of petitioner on the basis of the material placed on record by both the parties. However, vide the impugned order, learned Additional Sessions Judge, has set aside the award of interim maintenance on the presumptive and hypothecated ground that the respondent may placed the requisite material required to cancel the interim maintenance before learned Trial Court. She has referred to Savitri v. Govind Singh Rawat AIR 1986 SC 984 and relied upon para No.6 thereof which reads as under:-
"In view of the foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the court. Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice Caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The magistrate, may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to the pending final disposal of the application. In taking this view we have also taken note of the provisions of section 7 (2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed recently by Parliament proposing to transfer the jurisdiction exercisable by magistrates under section 125 of the Code to the Family Courts constituted under the said Act."

7. The instant petition is being filed on the ground that the respondent has not placed any material on record showing the earning or employment of the petitioner. By quoting the qualification of the petitioner to earn is not contemplated under Section 125 (1) (a) Cr. P.C. and a wife, who sacrifices her lucrative career for the sake of her children besides herself being ill cannot be denied maintenance by her husband/respondent as held by various Courts in the decisions; Vijay Singh Yadav v Rajesh Yadav & Anr 2009 (III) DRJ 516 wherein para No.5 reads as under:-
"5. I have carefully considered the submissions made by counsel for the petitioner. There is no doubt that no revision is permissible under Section 397(2) Cr. P.C. against an interlocutory order. However, in appropriate cases, the High Court in exercise of its powers under Section 482 is competent enough to intervene or set aside or modify even an interlocutory order in case it has resulted in abuse of process of law or is causing grave miscarriage of justice. For this purpose, the judgments which have been relied upon by counsel for the petition in case of Krishnan & Anr. v. Krishnaveni & Anr. & in case titled Delhi Labour v. Raj (supra) are not in dispute."

8. She also relied upon Rakhi v. Pankaj Kumar 123 (2005) DLT 262 wherein in para No.5 this Court has held as under:- "5. Looking at the matter as it stands it appears that the judgment under challenge is erroneous and that the learned Additional Sessions ought not to have interfered at a stage when the Metropolitan Magistrate fixed only the interim amount in the proceedings under Section 125 Cr. P.C."

9. Petitioner has further pointed out that learned Additional Sessions Judge, vide the impugned order has cancelled the award of interim maintenance to the petitioner not on the basis of any material placed on record, but on the hypothecation that required material may be placed before the Court by respondent/husband later on in future.

10. On the other hand, respondent No.1 has filed his reply whereby he has taken preliminary objection about the maintainability of petition. He has submitted that the petitioner has concealed important / material facts from this Court because these facts render this petition to be non-maintainable. The said facts are as under:-
(i) The petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No. N-15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties.
(ii) The petitioner backtracked from the said settlement and continued with the litigation vigorously. Another settlement was executed on 02.04.2003 which was ultimately registered. Only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent.
(iii) On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life. (iv) The petitioner filed the application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.
(v) On the basis of settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 a petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner's appeal was dismissed, thus adding sanctity to the settlement.

11. Respondent has further stated in the reply on question of law that learned Additional Sessions Judge cancelled the interim maintenance on the basis of material placed on record including the registered settlement deed dated 02.04.2003 and para No.30 of the Trial Court order dated 24.07.2009 reads as under:-
"Thus, it is clear that grant of maintenance under Section 125 Cr. P.C. certain conditions are required to be fulfilled and it would be a matter of trial whether the respondent has refused or neglected to maintain the petitioner, whether the petitioner is unable to maintain herself and whether the respondent has sufficient means to maintain the petitioner ......"

12. It is further submitted that the question of law is not against the orders of learned Additional Sessions Judge dated 04.06.2010 as alleged and the petitioner has received most of the interim maintenance till the said order dated. Learned Additional Sessions Judge in para No.13.0 observed as under:-
"It is pertinent to mention here that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself."

13. Respondent has also filed additional submissions and submitted that in para No.12.2 of the impugned order, learned Additional Sessions Judge has opined as under:-
"I consider that in view of these peculiar fats and circumstances, parties are required to prove whether the settlement arrived into between them was only illusory and sufficient arrangement not made for the future maintenance of the respondent/ wife or that whether respondent/wife is unable to maintain herself or whether the petitioner/husband has sufficient means or not. I consider that parties are required to lead
evidence in this regard."

14. Respondent had handed over the shop in property No.N-15, Malviya Nagar, New Delhi and DDA flat in Khirki Village at the time of settlement/divorce by mutual consent. The petitioner has sold off these properties and purchased a double story 250 yards house bearing No.758, Sector 7, Punchkula and is getting rent of around ` 40,000/- per month. Proof thereof is annexed as Annexure R-1.

15. The petitioner continuously living in the same house and is maintaining the same living standard in contrast to the respondent, who has been forced to live in an unauthorised colony and that too on rent.

16. Learned Additional Sessions Judge in para No.13.0 observed that "that there is no mode of recovery, if later on it is found that respondent / wife has sufficient means to maintain herself."

17. During her cross-examination, in the petition under Section 125 Cr. P.C. on behalf of son, petitioner while asserting that she is living on the mercy of relatives, friends, but failed to name even a single person from whom she had taken debt or loan and this fact goes to prove that she has sufficient means to maintain herself.

18. Petitioner has filed her income tax returns till the year 2007-08. And declared her income to be ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent. Annexure R-3 has been placed on record in this regard.

19. It is further stated that because she initiated litigation on her income and the income of a practicing gynaecologist is always in cash, therefore, stopped filing her tax returns. Failing in her endeavour to fulfil her greed under Prevention of Domestic Violence against Women Act, because the case was ruled to be non-maintainable in the background of settlement dated 02.04.2003, she took the shelter of Section 125 Cr. P.C. and filed the petition, therein.

20. It is stated, the petitioner has concealed the fact that just before filing the petition mentioned above, she got admitted her adopted daughter to a prestigious, high end public school and is spending more than  30,000/- per month upon her.

21. The respondent has stated in the reply to the instant petition that the wife should maintain standard of living, comparable to the husband as per the provision enshrined under Section 125 Cr. P.C. In the instant case, the petitioner is living in partially self owned house, whose monthly rental is ` 80,000/- whereas respondent is living in a rented house in an unauthorised colony whose rental is ` 8,000/- per month. Moreover, she is running a nursing home in the basement of property No.C-18, Shivalik, New Delhi whose monthly rent is ` 25,000/- per month.
22. I note that the petitioner proposed a settlement deed in the Court of Smt.R.S.Nag on 27.05.2002 which envisaged that the parties will seek divorce, petitioner will not claim any maintenance and respondent will forego his lien over the DDA flat as also a shop in property No.N- 15, Malviya Nagar, and property No.C-18, Shivalik, shall be sold off and sale proceeds shall be divided equally between the parties.

23. Another settlement was executed on 02.04.2003 which was ultimately registered. The only difference between vis-a-vis previous settlement was that respondent reduced his share in the property C-18, Shivalik from 50 per cent to 45 per cent. On 03.05.2003, the divorce obtained by mutual consent in terms of settlement dated 02.04.2003 and petitioner withdrew her case in the guardianship court and petition under Section 125 Cr. P.C. on behalf of his son. The joint petition for mutual consent divorce, statement on oath as well as final order expressly stipulating that the petitioner shall not claim any maintenance through rest of the life.

24. Thereafter, the petitioner filed another application under The Protection of Women from Domestic Violence Act, 2005 claiming maintenance and same was dismissed by learned Trial Court as well as Sessions Court as non-maintainable in the background of settlement dated 02.04.2003.

25. It is pertinent to mention here that on the basis of the settlement dated 02.03.2003, this Court quashed four criminal cases in Criminal M.C.No.3337/2007 petition filed under Section 482 Cr. P.C. by respondent. The petitioner preferred to challenge the said judgment in the Supreme Court, whereupon the petitioner's appeal was dismissed.

26. It is also pertinent to mention that learned Trial Court recorded in its order dated 24.07.2009 that for grant of maintenance under Section 125 Cr. P.C. certain conditions are required to be fulfilled and it would be a matter of trial whether respondent has refused or neglected to maintain the petitioner whether the petitioner is capable to maintain herself and whether the respondent has sufficient means to maintain the petitioner.

27. Moreso, in the aforesaid order, learned Additional Sessions Judge has recorded his opinion that parties are required to prove that whether the settlement arrived at between them was only illusory and sufficient arrangements not made for the future maintenance of the wife or that whatever wife is unable to maintain herself or whether the husband has sufficient means or not. To this effect, parties are required to lead evidence. The petitioner during her cross- examination in petition under Section 125 Cr. P.C. on behalf of her son deposed that she was living on the mercy of the relatives, friends, however failed to name even a single person from whom she had taken debt or loan.

28. Moreso, annexure R-3 shows that her income tax returns till the year 2007-08 and her income was ` 3.31Lacs in comparison to ` 2.40Lacs of the respondent.

29. In view of above, I find no perversity in the impugned order passed by learned Additional Sessions Judge. I conquer with the same.

30. Keeping the above discussion into view, I find no merit in the case. Accordingly, Criminal M.C. No.2602/2010 is dismissed.

31. No order as to costs.

SURESH KAIT, J
JANUARY 30, 2012
Mk

No maintenance to divorced wife - Panditrao Chimaji Kalure Vs. Gayabai Panditrao Kalure

                                                       In the High Court of Bombay

Panditrao Chimaji Kalure

Versus

Gayabai Panditrao Kalure

Date: 27 February, 2001

Bench: S Radhakrishnan

JUDGMENT
1. The brief facts are that the appellant in Second Appeal No. 88/1984 viz. Gayabai w/o Panditrao Kalure (original plaintiff) had claimed that she was a legally wedded wife of Panditrao Chimajj Kalure (original defendant). Gayabai had filed a Regular Civil Suit No. 193/1969 for grant of maintenance from Panditrao Chimaji Kalure and also claimed maintenance for the previous three years. In the said Regular Civil Suit, Gayabai had contended that they have been married for 11 years an4 that she has been living with her husband for a period of five years and eight months. In the year 1963, Panditrao Kalure had obtained a job as a teacher and he had declined to take her with him at the place of service at village Bhogalwadi. Gayabai had alleged that Panditrao Kalure, had ill-treated her. It appears that said Gayabai had also filed an application for maintenance under Section 488 of Criminal Procedure Code. In the said proceedings Panditrao Kalure had produced a Divorce Deed, mentioning that the said marriage was mutually dissolved between the parties by consent on 5/5/1967. The Criminal Court had accepted the said Divorce Deed and had rejected the application of Gayabai for maintenance, in the aforesaid suit, Gayabai had contended that she had never given such a divorce and there, was no customary practice in her community to enter into any such Divorce Deed and also contended that the said Divorce Deed was a false and fabricated document, as such, same ought to be declared as null and void.

2. The main contention of Gayabai was that her husband was not maintaining her and that she was being maintained by her parents. She had also alleged that Panditrao Kalure receives a monthly salary of Rs. 200/- and that he is a member of a joint family which owns 45 acres of land and out of which 10 acres are irrigated land. Under these circumstances, Gayabai had claimed Rs. 100/- p.m. as maintenance and Rs. 3,600/- as past maintenance. She had also prayed for a declaration that the Divorce Deed dated 5/5/1967 to be declared null and void, being a false and fabricated document. She had also sought a declaration that she is a legally wedded wife of Panditrao Kalure.

3. The defendant Panditrao Kalure had filed his Written Statement contending that as per the prevailing custom, he had divorced his wife Gayabai by executing Divorce Deed on 5/5/1967. He had also contended that the marriage had taken place almost 15 years back when both of them were minors. He had strongly disputed that Gayabai was residing with him for five years and eight months, On the contrary, he had contended that Gayabai hardly resided with him for a period of two years or so after their marriage. Panditrao Kalure had strongly disputed that he had ever ill-treated Gayabai and he had strongly denied that he had ever deserted her and driven her out of the house.

4. Panditrao Kalure had contended that Gayabai very rarely came to his house at Ramwadi while the marriage was subsisting and in fact, her brother and other person used to bring her and she would not come on her own and she was very unwilling to come to the residence of Panditrao Kalure. Even the parents of Gayabai were not willing to send her, when Panditrao Kalure was living at Ramwadi, In view of this behaviour of Gayabai, finally, Gayabai and her parents had decided to take a divorce from Panditrao Kalure. The defendant Panditrao Kalure had contended that accordingly a special messenger by name Ramrao s/o Danreddy, r/o Yellamwadi was sent seeking a divorce from the defendant. Panditrao had contended that the Divorce Deed in favour of Panditrao Kalure was scribed by the brother of Gayabai viz. Ramrao Narsingrao Tandre and the said Divorce Deed was also attested by some witnesses. Panditrao Kalure contends that the Divorce Deed was executed as per the existing and prevailing custom in their community.

5. The trial Court, after hearing the panics had held that the plaintiff Gayabai had proved ill-treatment and also had proved that Panditrao Kalure had neglected and refused to maintain her. Accordingly, the trial Court had held that Gayabai was entitled to receive maintenance @ Rs. 60/- p.m. and also had granted, past maintenance for a period of three years.

6. Panditrao being aggrieved by the order of the trial Court, filed a Regular Civil Appeal No. 88/1975 in the Court of District Judge, Beed. The learned District Judge, Beed, had allowed the appeal and remanded the matter to the trial Court for a decision on an important issue, as to whether the marriage between the parties was subsisting on the date of filing of the suit and if the Deed of Divorce, produced by the appellant Panditrao Kalure was held to be proved, the relationship of husband and wife between the parties would come to an end and consequently, Gayabai would not be entitled to claim any maintenance. Thereafter, the plaintiff Gayabai had preferred an appeal against the said order of the District Judge, Beed, in Regular Civil Appeal No. 88/1975, before this Court in Appeal No. 205/1978. This Court, after upholding the order of remand of the District Court, Beed, directed the trial Court to record the evidence of the finger print expert and send the matter to the lower Appellate Court for its consideration. The trial Court had recorded the evidence of the finger print expert and had sent the same to the District Court. Under these circumstances, the lower Appellate Court viz. the District Judge, Beed, took up this matter and had framed the following points:--
(1) Does the Defendant prove that there was a divorce between the parties ?
(2) Does the Plaintiff prove that she was ill-treated and driven out by the defendant and that he has neglected or refused to maintain her ?
(3) Is she entitled for maintenance and if so, what should be the quantum ?
(4) If yes, whether she is entitled for back maintenance ?
(5) What orders ?
The learned District Judge, Deed, has answered first point in affirmative, second point in negative and so far as the third point is concerned, it was held that the Plaintiff Gayabai was entitled to receive maintenance and that she would be entitled to get Rs. 60/- p.m. by way of maintenance. So far as point no. 4 is concerned, the learned District Judge, Beed, has held that the Plaintiff Gayabai was not entitled for any back maintenance.

7. The learned District judge, after the aforesaid remand and the evidence of the finger print expert Shri A.N. Mujumdar, by a detailed examination of the same, by a cogent and proper reasoning, came to a conclusion that the thumb impression on the said document i.e. Divorce Deed was that of Gayabai. Accordingly, the finding was that the defendant Panditrao Kalure had proved the thumb impression on the Divorce Deed (Exh. 50) was that of Gayabai, accordingly there was a divorce between the parties as per the customary practice.

8. It appears that there was a contention raised by the learned counsel appearing for Gayabai that the said thumb impression on the Divorce Deed (Exh. 50) was not a voluntary one. The learned District Judge holds that all throughout Gayabai had contended that her brother had not obtained her thumb impression, whereas, it was sought to be argued that the thumb impression was not a voluntary one, which contention was rejected as the same was totally contradictory to each other, in the sense, if the case of Gayabai was that she had never given her thumb impression on the said Divorce Deed, then there was no question of her thumb impression being not a voluntary thumb impression. Ultimately, the learned District Judge, upholds the contention of Panditrao Kalure that the Divorce Deed was executed and Gayabai had affixed her thumb impression on the same.

9. The learned District Judge has, after appreciating all the evidence on record, came to the conclusion that Gayabai had failed to prove that her husband Panditrao Kalure was ill-treating her or that he had deserted or neglected her. On the contrary, the learned District Judge holds that Gayabai had agreed to a divorce on her own and that there was no ill-treatment. Finally, the learned District Judge holds that the Divorce Deed between Gayabai and Panditrao Kalure was established and proved.

10. The learned District Judge, thereafter, went into the issue of grant of maintenance. The learned District Judge after referring to the provisions of Section 25 of Hindu Marriage Act, 1955 as well as Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and also a judgment of this Court in the case of Govindrao Ranoji Musale v. Anandibai Govindrao Musale and Anr., 1977 Mh.LJ. 144 and also ,another judgment of this Court in the case of Smt. Rajeshbai and Ors. v. Smt. Shantabai, ; holds that in view of Section 25 of the Hindu Marriage Act, 1955 and in view of the provisions of Section 151 of Code of Civil Procedure, the Court had the right to grant maintenance, that is to say, the learned Judge had considered aforesaid judgments and had concluded that the petition for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 can be considered even under Section 25 of the Hindu Marriage Act, 1955 for grant of maintenance. To put in other words, the learned District Judge is of the view that even if Gayabai is held to be divorced, she is still entitled to claim maintenance, in view of Section 25 of Hindu Marriage Act, 1955 r/w Section 151 of Code of Civil Procedure. Accordingly, the lower Appellate Court had allowed the appeal filed by Gayabai and had directed Panditrao Kalure to pay Rs. 60/- p.m. from the date of institution of the suit. However, that part of the order of the trial Court, wherein, it was held that Gayabai was entitled to recover the back maintenance for the last three years, was set aside.

11. Aggrieved thereby, Panditrao had filed a Second Appeal No. 73/1984, before this Court challenging the direction of the lower Appellate Court, directing Panditrao to pay Rs. 60/- p.m. from the date of institution of the suit.

12. Gayabai had also filed a separate Second Appeal No. 88/1984, before this Court challenging the findings, mainly the finding given by the lower Appellate Court, to the effect that Panditrao Kalure had divorced Gayabai. The contention of Gayabai is that there was no divorce between Gayabai and Panditrao Kalure and (hat she had not executed the Divorce Deed at all and also that there was no customary divorce in their community.

13. Mr. Milind Patil, learned counsel, appearing for Panditrao Kalure appellant in Second Appeal No. 73/1984 has raised the following substantial questions of law viz.
(1) Once if the Court holds that there has been a divorce between husband and wife, whether a Court can grant maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956; and (2) Even assuming under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, a divorced wife could seek maintenance, in this case, when it is clearly established that Gayabai could not prove the necessary conditions, as contemplated under Section 18(2) (a) or (b) or (g) of the said Act, can the lower Court still grant such a maintenance?

14. Mr. N.H. Patil, learned counsel appearing for Gayabai appellant in Second Appeal No. 88/1984, had referred a judgment of this Court in the case of Govindrao Ranoji Musale (supra). It is pertinent to note that in that case the marriage was subsisting. The provisions of Section 18 of the Hindu Adoptions and Maintenance Act of 1956 as well as Section 25 of Hindu Marriage Act, 1955 were analyzed in depth and the Court has come to a conclusion that there was no inconsistency between both the provisions. In the said judgment, this Court has held that as far as maintenance under Section 18 of Hindu Adoptions and Maintenance Act, 1956 is concerned, the marriage has to be subsisting. On the contrary, under Section 25 of the Hindu Marriage Act, 1955, the power of the Court to grant maintenance is when the Court is exercising its jurisdiction under the Hindu Marriage Act, 1955 either at the time of passing of any decree under the said Act or at any time subsequent thereof, it can grant maintenance. Therefore, the view is that Section 25 of the Hindu Marriage Act, 1955 can come into play only in proceedings under Hindu Marriage Act, 1955 are filed and not otherwise.

15. Mr. Milind Patil, learned counsel, also referred to and relied upon a judgment of this Court in the case of Smt. Rajeshbai (supra). In this case, the claim of the wife was that the marriage itself was void under Hindu Marriage Act, 1955 and that she was entitled to claim maintenance out of the assets of her deceased husband. Here again, it is pertinent to note that the petition was filed, under Hindu Marriage Act, 1955 seeking a declaration that the marriage itself was void and also for maintenance, that is to say it was again a petition under Hindu Marriage Act, 1955. Shri Milind Patil, therefore, strongly contended that Hindu Marriage Act, 1955 operates on a different level and Hindu Adoptions and Maintenance Act, 1956, operates in a different sphere. Essential difference, as pointed out by Mr. Milind Patil, is that as far as maintenance under Hindu Adoptions and Maintenance Act, 1956 is concerned, the marriage has to be a subsisting one and the wording of Section 18 Hindu Adoptions and Maintenance Act, 1956 itself makes it abundantly clear that the marriage has to be a subsisting one and not in the case of a divorcee. On the contrary, in any proceedings, filed under Hindu Marriage Act, 1955, Court is empowered to grant interim maintenance (pendente lite) under Section 24 of the said Act or permanent maintenance under Section 25 of the Hindu Marriage Act, 1955. Therefore, Mr, Milind Patil, learned counsel, very strongly contends that once the Court, having given a categorical finding that a divorce had taken place between Panditrao and Gayabai, the Court could not, thereafter, exercise any powers and grant maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and there is no question of exercising the inherent powers under Section 151 of Code of Civil Procedure, 1908, which has no application whatsoever, and the same is a procedural power.

16. Mr. Milind Patil, learned counsel, further contends that Section 151 of Code of Civil Procedure, 1908, can only be exercised if there is some lacunae in. the Code of Civil Procedure and/to render justice, Court may resort to Section 151 of Code of Civil Procedure. But Section 151 of Code of Civil Procedure cannot be resorted to fill in any other lacunae or lack of any provision, in, Hindu Marriage Act, 1955.

17. Under these circumstances, Mr. Milind Patil, learned counsel, contend that the lower Appellate Court has completely misapplied the law and misconstrued the legal provisions, especially, in view of the finding that there has been a divorce between Panditrao Kalure and Gayabai, the Court could not have granted any maintenance in favour of Gayabai in a proceedings under Hindu Adoption and Maintenance Act, 1956.

18. Mr. N.H. Patil, learned counsel for Gayabai brought to my notice a Judgment of the Apex Court in the case of Chand Dhawan v. Jawaharlal Dhawan, 1993 Mh.L.J. 1731. In this judgment, in paragraph No. 25, the Apex Court has very categorically held that by Court's intervention under the Hindu Marriage Act, affecting or disrupting the marital status has come about, at that juncture, while passing the decree, undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. The Apex Court has further held that without affectation or disruption of the marital Status, a Hindu wife sustaining that status can live in separation from her husband and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956. The Apex Court in very clear and unambiguous terms has held that the Court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in a proceedings under the other. The Apex Court also has held that as is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as tp destroy the distinction of the subject of maintenance. Mr. N.H. Patil, learned counsel, very fairly conceded that the aforesaid judgment of the Apex Court in Chand Dhawan's case (supra) very squarely covers the case of Panditrao Kalure.

19. Mr. N.H. Patil, learned counsel, also referred to and relied on a judgment of Gujarat High Court in the case of Chand Dhawan v. Jawaharlal Dhawan, 1993 Mh.L.J. 1731Vihalal Mangaldas Patel v. Smt. Maniben Vihalal Patel, of the said judgment, it is held that even a divorced wife can claim maintenance under Hindu Adoptions arid Maintenance Act, 1956. The learned Single Judge of the Guajarat High Court has concluded that even a divorced wife can claim maintenance under Hindu Adoptions and Maintenance Act. However, it may be noted here that in that case it was not brought to the notice of the learned Single Judge of the Gujarat High Court, the aforesaid judgment of the Apex Court in the case of Chand Dhawan (supra). In view of the very categorical ruling on the interpretation of Hindu Adoptions and Maintenance Act and Hindu Marriage Act, 1955 by the Apex Court, the judgment of the Gujarat High Court in the case of Vihalal Mangaldas Patel (supra) holding that even a divorced wife can claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, is per incuriam and cannot be sustained in law,

20. Mr. N.H. Patil, learned counsel, thereafter, contended that the customary divorce, as sought to be alleged by Panditrao Kalure, was really not prayed. On a perusal of the reasoning of the lower Appellate Court, it is vital to note that the very deed was scribed by the brother of Gayabai and a number of instances pf customary divorce have also been given. It is pertinent to note that Gayabai has never taken a stand that she was forced, by fraud or coercion, to put her thumb impression, on the Divorce Deed. What was contended by Gayabai was that she had never put her thumb impression on the said Divorce Deed, whereas, by a detailed analysis, the lower Appellate Court has analyzed evidence pf the finger print expert, holding that Panditrao Kalure has been able to establish that the thumb impression on the said Divorce Deed was that pf Gayabai and in view of the customary divorce prevailing in that community, the Court had also come to the conclusion that Panditrao Kalure was able to establish that there was a customary divorce between Panditrao Kalure and Gayabai.

21. Mr. N.H. Patil, learned counsel, also relied upon a judgment of this Court in the case of Nemichand v. Basantabai, 1994 Mh.LJ. 1078, In this case, there was no independent evidence pf customary divorce at all produced by the plaintiff and as such, this Court was, of the view that the plaintiff had failed to prove that there was any customary divorce. On the contrary, in the present case a number of witnesses have been examined and a number pf customary divorces which had taken place in the said community, were also adduced to in the evidence.

22. Shri N.H. Patil, learned counsel, finally referred the another judgment of this Court in the case of Damyanti (Smt) Kirit Jani v. Kirit Lalubhai Jani, 1993 Mh.LJ. 752. This judgment deals with the provisions of Hindu Marriage Act, 1955, Sections 13-B(2) and 23(l)(bb) i.e. divorce by mutual consent, wherein, duty is cast on the Court to examine the parties and to be satisfied that the consent of the parties was not obtained by fraud or undue influence. I am afraid that this judgment will not be of any help to Mr. N.H. Patil, inasmuch as, this is not a case of parties approaching for a decree of divorce with mutual consent, whereas, the contention of Panditrao Kalure is that as per the custom prevailing in their community, Divorce Deed was executed and divorce had taken place. There is no duty cast on the Court, with regard to the customary divorce, as in the case of the divorce being granted by the Court under the aforesaid provisions. This judgment will have no application in the instant case.

23. I have heard both the learned counsel at length, with regard to the aforesaid two substantial questions of law raised by Mr. Milind Patil, appearing on behalf of the appellant in Second Appeal No. 73/1984. The judgment of the Apex Court in the case of Chand Dhavan (supra) makes it abundantly clear that Section 18 of the Hindu Adoptions and Maintenance Act operates in a different level and the marriage has to be subsisting and in that case, the marriage was subsisting. In any event, in view of the judgment of the Apex Court in the case of Chand Dhawan (supra), there is absolutely no ambiguity. There is no question of inlerchangeability, the same cannot be permitted so as to destroy the distinction on the subject of maintenance. Therefore, once a wife is divorced, her remedy to seek maintenance is at the time of divorce in a matrimonial petition or subsequent thereto is only under Hindu Marriage Act, 1955 and she cannot have any recourse under Hindu Adoptions and Maintenance Act, 1956, inasmuch as, the precondition for application of Hindu Adoptions and Maintenance Act, 1956, for a wife to seek maintenance is that the marriage must be subsisting. Under these circumstances, I answer the first substantial question of law to the effect that a divorced wife cannot claim any maintenance under Hindu. Adoptions and Maintenance Act, 1956, and her only remedy is under Hindu Marriage Act, 1955.

24. The second substantial question of law raised by Mr. Milind Patil, learned counsel for the appellant is that even assuming that a divorced wife is entitled to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, in the instant case, Gayabai had failed to establish any case under Section 18(2)(a) or (b) or (g) of Hindu Adoptions and Maintenance Act. On this issue, the lower Appellate Court has gone into the entire evidence and has given a categorical finding that the said Panditrao Kalure had not illtreated her, so as to compel her to live separately. The lower Appellate Court came to the conclusion that the Panditrao Kalure had not deserted Gayabai wilfully or otherwise. Gayabai has also not been able to justify any other cause for living separately. Those are the findings of the facts based on evidence arrived at by the lower Appellate Court. This Court, while deciding a Second Appeal, cannot re-appreciate the said evidence, and come to a different finding which is impermissible. The scope of the Second Appeal is very limited unless the findings are based on no evidence or the findings are totally perverse or contrary to law. The lower Appellate Court has given cogent reasons and has come to a conclusion that Gayabai had on her own left Panditrao Kalure and has been living separately. I do not find any ground whatsoever to interfere and disturb the same. I fully agree with Mr. Milind Patil that Gayabai had failed to make out any case under Section 18(2) (a) or (b) or (g) of Hindu Adoption and Maintenance Act.

25. Under these circumstances, the lower Appellate Court's decree and order dated 16/11/1983 passed in Regular Civil Appeal No. 88/1975 requires to be set aside, especially, the directions directing Panditrao Kalure to pay Rs. 60/-from the date of the institution of the suit, which cannot be sustained in law. Second Appeal No. 73/1984 is, accordingly, allowed, however, there shall be no order as to the costs.

26. As far as Second Appeal No. 88 of 1984 is concerned the same challenges only various findings of fact and there is no substantial question of law involved in the same. Hence the Second Appeal No. 88 of 1984 is devoid of any merit, hence stands dismissed however, there shall be no order as to costs.

27. Issue of certified copy is expedited.

No interim maintenance to wife appeal by husband

                               IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          CRL.M.C. 1859/2008

RAJEEV PREENJA        ..... Petitioner
Through Mr. Sanjay Jain, Advocate

Versus

SARIKA & ORS        ..... Respondents
Through Mr. Manish Kapur, Advocate for R-1 & 2.
Mr. Sanjay Lao, APP for State.


AND


CRL.M.C. 3089/2008 & Crl M A 11390/2008 (stay)
RAJEEV PREENJA         ..... Petitioner
Through Mr. Sanjay Jain, Advocate

Versus
SARIKA & ORS         ..... Respondents
Through Mr. Manish Kapur, Advocate for R-1 & 2.
Mr. Sanjay Lao, APP for State.


CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes in Digest?


ORDER
26.02.200 9
1. Both these petitions arise out of the same set of facts and are being disposed of by this common order.

2. Crl M C No. 1859 of 2008 is directed against the order dated 28 th November 2007 passed by the learned Additional Sessions Judge Crl M C Nos. 1859/2008 & 3089/2008 Page 1 of 16 („ASJ‟) Delhi dismissing Criminal Revision No. 47 of 2007 filed by the Petitioner husband thereby affirming an order dated 29th August 2007 passed by the learned Metropolitan Magistrate („MM‟) Delhi directed the Petitioner to pay interim maintenance @ Rs.2,000/- per month to his wife Respondent No.1 Sarika and Rs.1,500/- per month to his minor son Respondent No.2 Master Anurag from 8th February 2004 till the disposal of the petition on merits.


3. Crl M C No. 3089 of 2008 also by the petitioner husband is directed against the order dated 14th August 2008 passed by the learned MM in execution proceedings directing issuance of warrant of attachment of the moveable property of the Petitioner towards realization of the interim maintenance awarded against him.


4. On the first date of hearing of Crl M C No. 1859 of 2008 on 28th May 2008 this Court had directed that "the petitioner shall continue to pay interim maintenance as awarded by the trial court" during the pendency of this petition. However, despite two adjournments since then, the Petitioner has not complied with this direction. As a result despite, succeeding in her petition for interim maintenance before the learned MM and in the revision petition by the husband before learned ASJ, Respondents 1 and 2 date have till date not received any amount whatsoever from the Petitioner. Further, till date there has never been a stay of the order of the learned MM. The reason offered for non- Crl M C Nos. 1859/2008 & 3089/2008 Page 2 of 16 compliance is the petitioner‟s financial incapacity. This is the same ground urged before and rejected by the learned ASJ. Also, it is not as if the petitioner has made payment of a portion of the amount due to Respondents 1 and 2 and is willing to pay the balance in a reasonable time. It is a blunt refusal to make any payment whatsoever, even to the minor son. This conduct of the petitioner in making no attempt whatsoever to comply with this Court‟s direction is unacceptable and should disentitle the petitioner to relief. Nevertheless learned counsel for the Petitioner has been heard at length on the merits of the case as well.


5. The petitioner and Respondent No.1 were married on 23 rd November 2000. The child Anurag was born to them on 4 th October 2001. According to Respondent No.1 soon after the marriage she began to be harassed by the Petitioner husband and his family members for dowry. In particular they demanded that her parents should give a residential flat. Respondent No.1 was beaten several times and left at her parents‟ place. Later a compromise was effected on 15th July 2002 but this was short lived. On 11th June 2003 after being beaten up by her in-laws, Respondent No.1 along with her minor son again came to her parents‟ house. For a second time a compromise appears to have been reached before the police on 6th August 2003 with the Petitioner agreeing that he, respondent No.1 and the child would live in a separate flat within six months. On this assurance, Respondent No.1 agreed that her complaint made to the police should be treated as closed. Subsequently the Special Crl M C Nos. 1859/2008 & 3089/2008 Page 3 of 16 Executive Magistrate also closed the proceedings under Sections 107/151 CrPC by an order dated 21st September 2003. Even this apparently did not work out. Respondent No.1 was back in her parents‟ house on 8th February 2004 with the child.


6. In the meanwhile in Complaint Case No.445/3/03 was filed by Respondents 1 and 2 against the Petitioner under Section 125 CrPC seeking maintenance. Respondent No.1 stated that she was not earning and also had no source of income whereas the Petitioner was employed in a book publication house earning around Rs. 12000 per month. Accordingly Respondent No.1 claimed maintenance of Rs. 4,000 per month for herself and Rs. 3,000 per month for the child (Respondent No.2). The Petitioner filed a written statement not denying the relationship with Respondents 1 and 2 but pleading financial incapacity as he was without employment since 23rd December 2003 on account of the threats received from Respondent No.1 and her family members. His father had retired from a private job and was not earning pension. His mother was working in the MTNL.


7. During arguments before the Learned MM, Mahila Courts in the application for interim maintenance filed by Respondent No.1, the Petitioner‟s counsel submitted that Respondent No.1 had left the matrimonial home of her own accord and was therefore living separately "without any sufficient reason." It was submitted that she was not Crl M C Nos. 1859/2008 & 3089/2008 Page 4 of 16 entitled to even interim maintenance in terms of Section 125 (4) CrPC. It was further submitted that due to the behavior of Respondent No.1, the Petitioner was under mental depression. Medical certificates dated 15th March 2005 and 25th July 2005 issued by the Psychiatrists at the Institute of Human Behaviour and Allied Sciences (IHBAS) to that effect were produced. The learned MM after perusing the certificates noticed that it had not been stated therein that the Petitioner was behaving in an abnormal way or that his situation was such that he was incapacitated from taking up any employment. While the certificates showed that he underwent treatment till 25th July 2005, they did not indicate that he required to be treated even thereafter. On the basis of the earning capacity of the Petitioner as evidenced by his recent employment, the learned MM, by the impugned order dated 29th August 2007 directed him to pay interim maintenance of Rs.2000 per month to Respondent No.1 wife and Rs. 1500 per month to the Respondent No.2 child from 8 th February 2004 (excluding the period between 15 th March to 25th July 2005 when the Petitioner was receiving treatment at IHBAS). The aforementioned order was affirmed by the learned ASJ by the dismissal of the revision petition filed against it by the Petitioner by the impugned order dated 28th November 2007.


8. It is first submitted by learned counsel for Petitioner that under Section 125 (4) CrPC no order for interim maintenance can be passed if the Court is satisfied that the wife is, "without any sufficient reason" Crl M C Nos. 1859/2008 & 3089/2008 Page 5 of 16 refusing to live with her husband. It is submitted that in the instant case, although the Petitioner has always been willing to take back Respondent No.1, it is she who has been unreasonably refusing to come back to the matrimonial home.


9. This argument is without merit. At the outset it requires to be noticed that the above argument would be relevant, if at all, only in the context of the grant of interim maintenance to Respondent No.1 wife. In fact, the Petitioner offers no justification whatsoever for not paying till date any interim maintenance to the child as directed. The learned MM while deciding the question of payment of interim maintenance to a wife is only expected to form a prima facie opinion whether such wife was staying away from the husband without any sufficient reason. If the argument of the Petitioner has to be accepted then it is only after the entire evidence is led that an order for interim maintenance can be passed. That would defeat the very purpose of providing for payment of interim maintenance in Section 125. What the learned MM is required to determine at the stage of grant of interim maintenance is to be prima facie satisfied, on the basis of the pleadings and any other material on record, that the wife has not stayed away from the husband without sufficient reason. Applying such yardstick, it cannot be said that in the instant case the respondent No.1 wife stayed away from the husband without sufficient reason. On the other hand, even on the petitioner‟s own showing, she came back to the matrimonial home after two Crl M C Nos. 1859/2008 & 3089/2008 Page 6 of 16 attempted compromises, both of which unfortunately did not last long. Without at this stage determining which of the parties was responsible for the situation in which they were unable to stay together, it is held that the pleadings do not prima facie show that the Respondent No.1 stayed away from the husband without sufficient reason. This submission of the learned counsel for the Petitioner is therefore rejected.


10. As regards the financial incapacity, and the mental unsoundness of the petitioner, this Court finds that these grounds were rejected by the learned MM for cogent reasons. The view taken by the learned MM and affirmed by the learned ASJ on this aspect cannot be said to be perverse and warranting any interference. The grant of interim maintenance to Respondent No. 1 wife and Respondent No.2 minor son as ordered by the learned MM cannot be said to be excessive or unreasonable.


11. For these reasons, the is no merit in any of the grounds raised in Crl.M.C No. 1859 of 2008 and it is accordingly dismissed with costs of Rs.10,000 which will be paid by the petitioner to Respondent No.1 within a period of four weeks from today.


12. This brings for consideration the next issue concerning the implementation of the order of the learned MM directing the payment of interim maintenance. This is the subject matter of challenge in the other petition Crl.M.C. No. 3089 of 2008. Court finds that the Petitioner by his Crl M C Nos. 1859/2008 & 3089/2008 Page 7 of 16 conduct of refusing to comply with the orders of interim maintenance passed against him, particularly when there was no stay of those orders, has driven the Respondents 1 and 2 to further despair. It would be indeed be a travesty of justice that an indigent wife who has been awarded interim maintenance on merits by the learned MM, and has thereafter succeeded before the learned ASJ with the dismissal of the husband‟s revision petition, is unable to get the order implemented for over eighteen months.


13. The facts as far as the present case is concerned are stark. The wife filed an application for interim maintenance way back in 2003 when the relationship with her the petitioner husband was already in trouble. Admittedly she has not been living with the petitioner since 8th February 2004. The burden of looking after the child has been entirely hers since then. She could get an award of interim maintenance only after three and a half years i.e. on 29th August 2007. Yet, till date she has not been able to get the said order implemented. The Respondent No.1 has therefore been compelled to go back to the court of the learned MM in 2007 itself for implementation of the order of interim maintenance passed in her favour by that court. Those proceedings were resisted by the petitioner for over a year. Ultimately by the impugned order dated 14th August 2008 the learned MM, after noting that no payment had been made by the petitioner till then, issued warrants for attachment of the moveable property of the petitioner.
Crl M C Nos. 1859/2008 & 3089/2008 Page 8 of 16


14. The petitioner questions the device of an execution petition before the learned MM as being without the authority of law and with no statutory backing of the CrPC. While it is true that the legislature has not provided for a separate execution proceedings to enable the wife in whose favour an order of interim maintenance has been passed to get the said order implemented, the provision contained in Section 125 (1) CrPC indicates that the learned MM is expected to keep the proceedings pending before that court for the purpose. In Section 125 (1) CrPC the words used are:" ...a Magistrate ...may, upon proof of such neglect or refusal, order such person to make a monthly allowance...at such monthly rate ...as the Magistrate may from time to time direct." A similar expression is used in the second proviso to Section 125 (1) CrPC in the context of interim maintenance. The expression "from time to time" is intended to enable the Magistrate to monitor the implementation of the orders passed by the learned MM including the orders awarding interim maintenance. That is the only way that the orders awarding interim maintenance can be expected to be implemented. Otherwise, an unscrupulous husband will be under no pressure of compliance despite suffering an adverse order. To regale such a remedy to the wife will defeat the very purpose of the provision. Therefore the objection raised by the petitioner husband on the ground of lack of jurisdiction in the learned MM to entertain an execution petition is without merit and is rejected as such.


15. The other phenomenon that requires to be discouraged is that a mere filing of a revision petition by a husband against an order granting interim maintenance to the wife and/or child is construed as an implied stay of that order. As a result the wife has to wait for an even longer period for the implementation of the order in her favour. The method that should be deployed to overcome this hurdle is for the revisional court to insist that the husband‟s revision petition will not be entertained till such time the husband against whom the order of interim maintenance has been passed, deposits the entire arrears of interim maintenance up to date in terms of the said order of the learned MM in the court of the learned ASJ. Otherwise the husband will be able to indefinitely postpone the implementation of the orders of interim maintenance by driving the wife from one court to another without her receiving any payment whatsoever. This only compounds the agony of the wife and serves to defeat the interest of justice. This situation ought not to be allowed to continue if justice in the real sense should be done to an Indian wife who is in dire straits and unable to survive with her child for want of economic means of subsistence. Given the huge pendency of work in the courts of the learned MM, an application under Section 125 CrPC is unable to be disposed of within a year. Even an order of interim maintenance is able to be passed only after a year.


16. It is accordingly directed that when a revision petition is filed by husband in the court of the learned ASJ against an order of interim maintenance passed by a learned MM in favour of the wife, the said revision petition will not be entertained by the learned ASJ till the entire amount of interim maintenance due under the order of the learned MM up to the date of filing of the revision petition is first deposited in the court of the learned ASJ. The respondent wife and child, if any, should be permitted by the learned ASJ to withdraw the whole or part of the said sum, upon such terms and conditions as may be determined by the learned ASJ.


17. This Court has, in the decision of Gaurav Sondhi v. Diya Sondhi 120 (2005) DLT 426 in the context of an application for interim maintenance under Section 24 of the Hindu Marriage Act, 1955 („HMA‟) issued certain guidelines. This Court finds that the said guidelines could be implemented by learned MM dealing with application under Section 125 CrPC seeking enforcement of orders awarding interim maintenance or maintenance. The relevant guidelines read as under:
"4. The matrimonial courts should follow the following procedure while granting interim maintenance/ maintenance:
(i)Whenever maintenance/interim maintenance is ordered, the Court will direct that it will be paid on or before 10th day of every month Crl M C Nos. 1859/2008 & 3089/2008 Page 11 of 16 unless the Court finds that the nature of the employment of the husband and his manner of income makes such monthly payments impractical. In such a situation appropriate orders may be passed which shall take into account the circumstances of the husband which warrant departure from the time bound monthly payment directions contained in this
order. ;
(ii) whenever the wife has a bank account and indicates it, such payment may directly be deposited in such bank account every month before the 10th day of the month.
(iii) The payment shall be made to the wife/child and in case of any difficulty in receiving or tendering the payment, it should be made through counsel. The order of deposit in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court's registry. If for good reasons upon finding difficulty in payment to a wife and her counsel the deposits in Court are made such deposits should be in the name of the wife by a draft/crossed cheques, which may be retained on the court file for retrieval by the wife without the time consuming process of deposit in the Court account and subsequent withdrawal by the recipient;
(iv) In case there is first default for payment of maintenance, the Court may condone it. However, in case of second default without  justification, it will be open to the Court to impose a penalty up to 25% of the amount of monthly maintenance awarded;
(v) In case there is third or fourth default, the penalty may go up to 50% of the monthly amount of maintenance upon the court finding that the default was not condonable or contumacious in nature.
(vi) The Court must ensure that the orders of maintenance are not a mere rhetoric and are meaningful and effective and give real sustenance and support to the destitute wife and/or the child.
(vii) In case interim maintenance is being paid and adequate litigation expenses have been awarded to the wife, it should be ensured that the written statement/reply is filed within a reasonable time.
(viii) However, in judging the nature of default the relative affluence of the husband and the regular nature of his occupation and income will be taken into account. Obviously husbands having irregular employment and/or daily wages or those having casual employment would be entitled to have their defaults viewed more liberally."
The above directions are reiterated and it is expected that the learned MMs dealing with applications under Section 125 CrPC will ensue their compliance.


18. In the context of the desired time limit for disposal of application for interim maintenance, Radhika Narang & Ors. v. Karun Raj Narang & Anr (decision dated 16th January 2009 in FAO (OS) No. 139 of 2006) the Division Bench of this Court has observed as under:
"14. .............. in matrimonial disputes, the interim maintenance and custody issues deserve the most expeditious disposal. We are further of the view that maintenance and custody cases must take precedence over matters of property or money claims. The learned Single Judge in the above judgment had rightly recorded the expectation that period for award of interim maintenance to be one month from the date of filing the application. However, in view of the pressure of work on matrimonial courts due to proliferation of matrimonial disputes and considerable shortage of judicial manpower, a more realistic time frame has to be prescribed. In our view the interim maintenance applications in matrimonial disputes ought to be disposed of with dispatch and certainly should not take in any event more than 1 year at the highest. The very purpose of interim maintenance is defeated if it takes about 3 years, as in the present case as an interim application for maintenance filed on 23rd May, 2003 came to be disposed of only on 16th February, 2006. We therefore direct that all the Courts in Delhi, therefore, must keep the need for urgent disposal of such applications in mind, and ensure the disposal of the interim maintenance applications within one year from the date of filing of such applications inmatrimonial matters."


19. Keeping in view the fact that interim maintenance applications are likely to take a year for being disposed of and that the payment to the wife is likely to be made only thereafter, it is only just and fair that the revisional court should insist on the deposit in Court of the interim maintenance payable in terms of the order under challenge as a pre- condition to entertaining the revision petition. Otherwise a recalcitrant husband can, despite suffering an adverse order, defeat that order merely by filing a revision petition and not being burdened with the responsibility of complying with it.


20. Keeping in view the facts and circumstances of the case, this petition is dismissed with cost of Rs.10,000/- which will be paid by the Petitioner to Respondent No.1 within four weeks from today. The learned MM will ensure that these costs are paid and a proof of deposit of payment be furnished to the learned MM by the Petitioner.

21. Accordingly, both these petitions are dismissed with costs of Rs.10,000/- each in the manner as indicated hereinabove. The costs will be paid by the Petitioner to Respondent No.1 within four weeks from today and a proof of the same be furnished to the learned MM.


22. The directions issued in paras 16 to 19 of this judgment should be followed strictly by the courts of the learned MMs and learned ASJs. A copy of this order be sent to the learned District Judge for issuing appropriate directions and for being circulated to all the courts hearing matrimonial matters for information and compliance.

S. MURALIDHAR, J.

FEBRUARY 26, 2009

rk

 

No Double Maintenance to wife (125 CrPc and HMA 24)

                                                           In the Bombay High Court

Ravindra Haribhau Karmarkar    … Petitioner

Vs

Mrs. Shaila Ravindra Karmarkar ... Respondent

JUDGMENT: dated on 17 July, 1991


Bench: B Wahane


1. In the instant application, the substantial question of law, in the public interest, has been raised and requires decision from this Court. The substantial question of law raised is as under :
"Whether a Judicial Magistrate First Class trying an application under Section 125 of Cr.P.C., is obliged under law, to stay the proceedings, on the ground that a Civil Court of competent jurisdiction has seized the matter in a suit, in which identical pleadings are made, and same reliefs are claimed by one and the same applicant/plaintiff, in whose favour the Magistrate has already awarded interim maintenance ?"


2. The facts giving rise to the above question of law, in nutshell, are as under :
The applicant and the non-applicant are the legally married spouses. Their marriage was solmnised as per the customs and rites of Hindu Religion, some times in the year 1969 at Buldana. Out of the wed-lock, they have two issues viz. first issue is a son - Sagar who is living with the applicant while the second issue a daughter Miss Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar. The couple had been to Canada and U.S.A. where they stayed for 12 to 13 years along with their children. Both returned some time in the year 1984 to India and stayed at Buldana till 1986. During this period, their relations became strained and ultimately on 19/5/86, the non-applicant filed an application u/S. 125 of Cr.P.C. against the applicant for maintenance for her and the daughter. Along with the application for maintenance, the wife had also filed an application for interim maintenance @ Rs. 500/- p.m. for both the non-applicants, on the very day. The learned trial Court, after hearing the parties and considering the facts, awarded Rs. 250.0 p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim relief. Since the day of the order, the applicant has paid Rs. 24,000/- to the non-applicants as maintenance allowance and that too in advance. Mr. Vidwanash, the learned counsel for the applicant submitted that the applicant has made the payment in advance till October 1991.


3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed a regular Civil Suit No. 227/86 for permanent alimony and also for arrears of maintenance. Along with the plaint, an application for the attachment of the property before judgment was also filed. On 28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following order on the said application :
"Perused the application and say at Exh. 64. The prayer of the applicant is that Order of attachment before Judgment be passed or direct the defendants to furnish solvent surety of Rs. one lakh. By way of Exh. 64, the defendants showed their willingness to furnish surety of one lakh. Hence, the defendants are directed to furnish solvent surety of Rs. one lakh".
In compliance with the above order, on behalf of the defendants, Shri W. Y. Godbole, resident of Nagpur has furnished the solvent surety before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the applicant has filed his written statement in the said Civil Suit, denying the claim of the non-applicants. The case is now posted for filing the documents.


4. The applicant filed an application to stay the proceedings of Misc. Criminal Case No. 114/86 before the Judicial Magistrate, First Class, Buldana, till the decision of the Regular Civil Suit No. 227/86. The application was opposed. After hearing the parties, the learned J.M.F.C., Buldana, rejected the application filed by the applicant for stay of the Misc. Criminal Case No. 114/86 vide his order dated 24-1-1991.


5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant approached this Court.


6. Mr. Vidwans, the learned counsel for the applicant submitted that though the non-applicant wife instituted two proceedings, one in the Criminal Court and another in the Civil Court, but the reliefs are one and the same. The relief sought in the application u/s. 125 of Cr.P.C. is to the following effect "to direct the opponent to pay the subsistence allowance of Rs. 500/- p.m. each to both the applicants Nos. 1 and 2".
In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause (i) is that "It is, therefore, prayed that this Hon'ble Court be pleased to decree the claim of the plaintiffs by passing necessary orders of maintenance against the defendant, directing him to pay arrears of Rs. 7000/- to the plaintiffs and further be ordered him to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs i.e. total Rs. 1000/- p.m. from the date of filing of this suit and onwards permanently".
The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg. C.S. No. 227/86 are one and the same.


7. Mr. Vidwans, the learned counsel for the applicant submitted that practically pleadings are identical and verbatim in both the cases. He took me through the pleadings of both cases and demonstrated that practically the paras are identical as much as they are in verbatim. Following paras of the application u/S. 125 of Cr.P.C. are identical to the paras of the plaintiff in Reg. Civil Suit.
Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.
4 6 5 7 6 8 7 9 8 10 9 11 10 12 11 13 12 14 13 15 14 16
Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.


8. The findings given by the Civil Court are binding on the Criminal Court. Therefore, as the matter is seized with the Civil Court i.e. in respect of the maintenance allowance and that too the similar amount which she alleged to be entitled in the application u/s. 125 of Cr.P.C., instead multiplying the litigations and to harass the applicant to lead the evidence in different two courts, in the interest of justice, the application pending in the court of J.M.F.C., Buldana be stayed till the decision in the Reg. C.S. No. 227/86. It is further submitted that any verdict given by the Criminal Court is not binding on the Civil Court but it is vice versa. The reliefs being the one and the same, the evidence will be common, so also the documents, it is the interest of both the parties to get the verdict from the Civil Court.


9. Mr. Vidwans, the learned counsel for the applicant relied upon the case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in para 7 as follows (at page 348) :
"I fail to understand what is the qualitative difference between the two stands. The parties are merely formulating the same propositions in the two proceedings in different words. The distinction made by the learned Judge is without any difference, as observed by the learned Magistrate and as is also apparent from the record, the dispute in the criminal complaint also revolves on the pivot whether or not respondents are the sole agents of the petitioners for sale and export of the petitioner's goods to the countries concerned. The learned Addl. Sessions Judge's interpretation is clearly wrong so far as this aspect is concerned".
In para 8, Their Lordships observed that :
"The other two reasons given by the learned Magistrate and indicated in para 6 supra, are also sound and the learned Addl. Judge has not bothered himself to consider them. The learned Magistrate's order staying the prosecution was eminently just and the learned Addl. Sessions Judge should not have interfered with it in revision".
The reliance also been placed on the case of William J. W. Ross v. Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri LJ 548). In that case before their Lordships, the wife instituted the proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already instituted the proceedings for divorce in the Divorce Corut. Their Lordships observed that -
"I am of opinion that the learned Magistrate would have exercised a better discretion on receiving an application u/s. 488 against a husband who had already instituted proceedings in the divorce Court, if he had referred the applicant for her remedy to the Civil Court. I do not think that it was the intention of the legislature in S. 489 to encourage applicants to resort to criminal Courts up to the very time when an order was passed by a competent Civil Court. As the Civil Court was seized of the matter, it seems to me clear, it is better that the Civil Court should dispose of it, and in the circumstances which have arisen in the present case, I am of opinion that a High Court would stay proceedings in a criminal Court until the conclusion of the divorce petition. We accordingly direct the learned Magistrate to stay the hearing of the application u/s. 488, Cr.P.C., by adjournment from time to time until the conclusion of the divorce petition".


10. On behalf of the non-applicants, Mr. Khapre, the learned counsel, opposed the application and submitted that the remedies in the criminal Court and Civil Court are altogether different. According to him, the proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are the summary proceedings for the immediate relief to the wife and other dependents. In the proceedings u/s 125 Cr.P.C. the Court has jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to each claimant. If this amount is inadequate according to clainming spouse or other claimants, the only remedy available is Civil Suit or petition u/s. 25 of the Hindu Marriage Act, 1955.


11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila Karmarkar, entered in the witness box and now the case is posed for her cross-examination. He further submitted that the principles of res judicata are not applicable in the instant case because though the reliefs claimed in both the proceedings are one and the same, the effect is not one. He further submitted that this Court has no power under any statute to stay the proceedings. To substantiate his submissions, he placed reliance on the case of Mohanlal v. Sau. Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the case before his Lordship, the wife instituted the proceedings u/s. 125 of Cr.P.C. and also husband filed an application for Judicial Separation and alimony in the Civil Court against the applicant under the provisions of the Hindu Marriage Act. An ex parte order was passed against the husband and she was awarded maintenance of Rs. 300/- p.m. The Civil Court granted Rs. 100/- p.m. as permanent alimony to the wife. In that case, the issue was raised to the effect that the principle of res judicate is applicable. His Lordship held that the Section 11 of the C.P.C. as such, is not, in terms, applicable to the proceedings u/s. 125 of Cr.P.C.


12. In the instant case before me, the question of res judicata is not involved. Shri Vidwans, the learned counsel for the applicant also has not raised this issue. Therefore, the observations made in the case supra are not of any assistance to the non-applicants.

13. Reliance also been palaced on the case of In re Taralakshmi Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91). In that case their Lordships observed that :
"The mere existence of a decree of a Civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order u/s. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make u/s. 488 and the Magistrate should make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid".
In the instant case before me, there is no decree passed by the Civil Court. For the same relief, the non-applicant wife knocked the doors of the Civil Court as well as of Criminal Court. So, the facts of the case which was before their Lordships of the Bombay High Court are altogether different having no relation with the facts and circumstances before me and, therefore, it is also not of any assistance.


14. Reliance has also been placed on the case of A. Joseph Fernando v. Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held that :
"The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier though the order in the civil suit was passed earlier. In such circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is perfectly maintainable notwithstanding a Civil Court's order for maintenance. The criminal proceedings can not be quashed".
In the instant application, the applicant has not prayed for quashing the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C. The only limited prayer is that the matter being seized with the Civil Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the case decided by the learned Court in the case supra and the facts before me, being altogether different, this case is also not of any assistance to the non-applicants.


15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (DB), in respect of the same subject matter, there were two suits instituted though the relief was based on different cause of action. The subject-matter in controversy in both the suits being the same, arises out of the same contract and from the same transaction, the later suit was stayed till the decision of the earlier suit.


16. Considering the facts and circumstances and the submissions made by the learned counsel for the parties, the relief in both the cases, being one and the same, and the Civil Court being seized with the matter, in the interest of justice, the proceeding pending in the court of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No. 277/86.


17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.


18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the matter. Staying the proceedings pending in the Court of J.M.F.C., Buldana, will not cause any pre-judice to the non-applicants because they are already receiving the maintenance allowance @ Rs. 250/- p.m. for wife and Rs. 150/- p.m. for the daughter.


19. In these terms the application is allowed. Rule made absolute.