Ami Chand vs Shakuntala Devi and another

Dr. Sarojnei Saksena, J.

Petitioner''s learned counsel relying Jai Kaur v. Ajaib Singh, 1988(1) All India Hindu Law Reporter 340 and Piara Singh v. Satwant Kaur and others, 1988(2) Punjab Law Reporter 579 contended that a decree for restitution of conjugal rights is passed in favour of the petitioners on 20th August, 1990 by the Additional District Judge, Jind. The respondentwife has not obeyed this decree. Hence, she is not entitled to claim maintenance from the petitioner under Section 125 of the Code of Criminal Procedure even on the interim basis. The second contention is that the Courts below have fallen into an error in straightaway issuing warrant of arrest against the petitioner for realisation of arrears of the maintenance under section 125(3) of the Code of Criminal Procedure. Instead of arresting the petitioner, in the first instance, Magisterial court ought to have issued warrant of attachment of moveable/immoveable property of the petitioner. To buttress this contention, he has relied on Raj Kumar v. Smt. Krishna Kumari and another, 1984(2) CLR 396. Hence, he prays that the impugned orders be quashed whereby for recovery of the arrears of maintenance granted by the Courts below in favour of the respondents warrant of arrest is being executed by sending him to jail.

Respondents learned counsel contended that respondents filed a petition under Section 125 of the Code of Criminal Procedure against the petitioner on 26th July, 1989. During the pendency of that petition, another petition was moved for grant of ad interim maintenance which was allowed by the order dated 15th March, 1990. The petitioner was ordered to pay interim maintenance of Rs. 200/ per month to the wiferespondent No. 1 and Rs. 100/ per month to the child Rakeshrespondent No. 2 with effect from 26th July, 1989. As a counterblast to this order, the petitioner filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and obtained a decree on 20th August, 1990. Till today, he has not paid any amount towards maintenance to the respondents. It is further pointed out that the petitioner has not come to the Court with clean hands. The respondent No. 1 was given severe beating by the petitioner and was compelled to bring more cash as dowry on 16.7.1989. The respondent''s father along with other persons went to Jind and with the intervention of police got freed the respondent from the clutches of the petitioner and brought her to Kaithal on 17.7.1989. Thereafter, on her complaint dated 19th September, 1989 a criminal case under Sections 363/406/498A and 506 of the Indian Penal Code is registered against the petitioner by the police station, Kaithal and that criminal case is pending against the petitioner. So far as the decree passed under Section 9 of the Hindu Marriage Act is concerned, on 16.3.1992 the petitioner filed an Execution Petition in the Court of the Additional District Judge, Jind. The said Court held that the execution petition filed by the petitioner is not maintainable and it was dismissed on 27th July, 1992, a copy of that order is filed as Annexure R2. His revision against grant of maintenance order was also dismissed by the Additional Sessions Judge, Kaithal vide order Annexure P5 wherein the Court held that the revision petition is meritless. The petitioner has no justifiable cause to get the execution proceedings of recovery of maintenance quashed.

Respondent learned counsel contended that the authorities relied on by the petitioner''s counsel are distinguishable as in this case the petitioner has not paid a single paisa towards maintenance to the respondents. The Magistrate''s order of issuing warrant of arrest against the petitioner was the only course open to the Court.

Admitted facts of this case are that the respondentwife filed a petition under section 125 of the Code of Criminal Procedure in the Court of Sub Divisional Judicial Magistrate, Kaithal on 26.7.1989. On 15.3.1990 an order for payment of interim maintenance, as is stated above, was passed in favour of the respondents at the rate of Rs. 200/ + Rs. 100/ per month. Till today, the petitionerhusband has not paid anything to the respondents. No doubt, after this order, the petitioner filed a petition under Section 9 of the Hindu Marriage Act and obtained a decree for restitution of conjugal rights on 20th August, 1990. But before that on the complaint of respondent No. 1 dated 19.9.1989 a criminal case is registered by the police station, Kaithal against the petitioner under Sections 363/406/498A and 506 of the Indian Penal Code, which is still pending. He has deliberately not mentioned this fact in his petition. He has also not disclosed this fact in his petition that he filed an execution petition of his aforesaid decree in the Court of Additional District Judge, Jind which was dismissed as not maintainable by the order stated 27th July, 1992, a copy of which is filed by the respondents as Annexure R2. Thereafter, the petitioner never filed any other execution petition to execute the said decree nor he filed any appeal/revision assailing the said order Annexure R2, thereby he has failed to satisfy the Court that he was genuinely interested in enforcing the decree by making sincere efforts for reunion for which he was required to show that it was not merely a paper decree obtained only to frustrate the order of maintenance. Thus, it is obvious that he filed this petition under Section 9 of the Hindu Marriage Act as a counterblast to the respondents'' petition filed under Section 125 of the Code of Criminal Procedure. He has not disclosed as to on what ground he obtained the decree of restitution of conjugal rights.

From the order dated 27th July, 1992 (Annexure R2) it is evident that even in the Executing Court the respondent No. 1 pleaded that she is ready and willing to go with the petitioner but his only intention is to keep the children with him and to turn her out. She further pleaded that she was mercilessly beaten by the petitioner for not bringing sufficient dowry. She has pleaded all these facts in her reply as well which are not controverted by the petitioner.

Only interim maintenance is granted to the respondents. Parties are yet to adduce their evidence to prove that the husband has not obtained this decree for restitution of conjugal rights as a camouflage to defeat her claim for maintenance but he has a sincere desire to resume cohabitation. The wiferespondent has yet to prove whether there is sufficient cause for her separate living and not joining him in the matrimonial home. If he has engineered any reasonable cause for her to live separately, he can''t be allowed to take advantage of his own wrong in defeating her claim for maintenance on this count. I find support from the judgments Kundan Lal v. Smt. Shanti Devi, 1988(2) Recent Criminal Reports 219 : 1988 Cr. L.J. 987 , Jhanwarlal v. State of Rajasthan , AIR 1969 Rajasthan 29, Madhusudan Mishra v. State of U.P., 1988(2) Crimes 402 and Sampuran Singh v. Gurdev Kaur, 1985(1) Recent Criminal Reports 490 : 1985 Crl. L.J. 1072 .

The object of this provision (Section 125 Cr.P.C.) is to provide a speedy remedy to the neglected wife and minor children to avoid destitution and vagrancy. Despite the aforesaid order of interim maintenance the respondents are still not paid a single paisa by the petitioner. Till today they are distitutes, without any means of sustenance. His contumacy in not paying maintenance is writ large on the record. Hence, in my considered view, the Courts below have not fallen into any error in executing the order of maintenance.

Continuous absence of the husband has compelled the Sub Divisional Judicial Magistrate to issue warrant of arrest against him. Even in this Court the petitionerhusband has failed to appear and has not paid anything to the respondents by way of maintenance. It cannot be said that these proceedings are an abuse of the process of the Court. If really, the petitionerhusband wanted to rehabilitate respondent No. 1 and if with that intention he would have obtained decree for restitution of conjugal rights, he would have filed another execution petition or would have filed a petition for divorce on that ground but till today, he has not adopted that course. That further indicates that his contention of obtaining a decree under Section 9 of the Hindu Marriage Act was only to whittle down the respondents'' legal proceedings to recover maintenance from him.

Further even if it is to be considered that after that decree passed under Section 9 of the Hindu Marriage Act dated 20th August, 1990, respondent No. 1 wife is not entitled to claim maintenance from the petitioner it is obvious that till that date respondnet No. 1 is entitled to recover maintenance from the petitioner at the rate of Rs. 200/ per month with effect from 26th July 1989. Even this amount was not paid by the petitioner to the wife, so far as respondent No. 2 is concerned, there is no legal bar and the minor son is entitled to recover maintenance at the rate of Rs. 100/ per month with effect from 26.7.1989 from the petitioner as per impugned order.

Hence, in view of the above facts, there is no justifiable reason to quash the proceedings pending in the Courts below. The petition is hereby dismissed.