Deba Prasad Palei vs Sabitarani Palei and Another

L. Rath, J.

This revision u/s 19(1) of the Family Courts Act assails the order passed by the Judge, Family Court, Rourkela directing payment of maintenance of Rs. 300/- per month to opp. party No. 1 and Rs. 200/- per month to opp. party No. 2 by the present petitioner with effect from 4-11-1992 on which date the application was made. The opp. parties have not appeared in spite of notice. The admitted facts are that the petitioner and opp. party No. 1 had married on 26-2-1990 and opp. party No. 2 is the son born to them. The petitioner filed O.S. No. 54 of 1992 before the Subordinate Judge, Khurda seeking dissolution of the marriage by divorce. In the suit, the opp. party No. 1 appeared and filed written statement that there was ill-feeling between the parties because of dowry demand of the petitioner and that there had been an amicable settlement effected by gentlemen of the village but that failed as the petitioner did not went to keep opp. party No. 1 as his wife, and that for such reason there had been a mutual agreement for divorce at the intervention of gentlemen. The opp. party No. 1 wanted to be free from the clutches of the petitioner because of his ill-treatment and wanted to reside with her parents. She also filed an application on 18-9-92 that it was impossible for her to remain as the wife of the petitioner and that she had no objection for a decree of divorce to be passed and that in future she would not claim any maintenance nor would resort to any legal action against the petitioner. She prayed in the petition that a decree for divorce be passed. The suit was decreed ex parte against opp. party No. 1 on 30-1-1993. In the meantime the opposite parties filed the petition u/s 125, Cr.P.C.on 4-11-1992 before the Judge, Family Court claiming maintenance at the rate of Rs. 500/- per month for each of them. The petitioner filed after the petition was filed by opp. party No. 1 on 18-9-1992 before the Subordinate Judge, Khurda. The petitioner though received notice in the case did not appear but sent time petitions on 2-12-1992 and 4-1-1993 through post on the ground, on the first occasion, that he had not been able to arrange necessary papers to file his written statement and that two months'' time might be granted for the purpose and on the second occasion on the ground that he being ill was not able to obtain the copies of different applications that had been made by opp. party No. 1 in different cases. The second application for time was taken by the learned Judge on 4-1-1993, the date fixed when it was submitted on behalf of the opp. party No. 1 that a divorce proceeding between the parties was sub-judice before the Subordinate Judge, Khurda and that unless maintenance was granted to her, she could not sustain herself nor can contest the divorce suit. The learned Judge considering the facts treated the petitioner as wilfully avoiding to appear in the case and set him ex parte and passed final orders on 25-1-1993.

Mr. Mukherjee, learned Counsel for the petitioner, has urged in pressing the revision that since the opp. party No. 1 herself had filed written statement and petition in the divorce suit that a decree for divorce might be passed and that she would not claim any maintenance from the petitioner nor would resort to any legal action against him and the decree for divorce had been passed on her request, the Judge, Family Court was bound by the decree and no order of maintenance could be passed in view of the very stand adopted by opp. party No. 1. It is his further submission that the petitioner was not able to appear before the Family Court because of threat and risk to his life and that even though he had appeared on 11-2-1993 risking his life and had filed a petition the set aside the ex parte order and had produced documents, yet he was orally advised by the Judge to file a revision.

Before the question urged at length by Mr. Mukherjee regarding the relative weight and consequence of the decree for divorce passed by the Civil Court as well as the petition filed by opp. party No. 1 disclaiming maintenance there is considered, the other submission made by him may be disposed of. There is absolutely no material to support the case of the petitioner, as is made out here, that he did not appear before the Family Court because of threat and risk to his life. This submission is plainly an afterthought. The two adjournment petitions sent by him through post did not mention any such ground. There is also no other material brought forth that the petitioner had anytime suffered any threat to his life by the opposite parties and that his life was in danger if he came to Rourkela.

The further submission of Mr. Mukherjee that the petitioner did appear before she Family Court on 11-2-1993 and had filed a petition for setting aside the ex parte order is also factually not correct, as the records of the Family Court do not bear out such statement. No petition was filed on 11-2-1993. This aspect assumes importance since Section 126(2) in its proviso makes the provision that an ex parte order passed by a Magistrate may be set aside by him for good cause shown if an application for the purpose is made within three months from the date of the order. The petitioner though admittedly had the opportunity to file such a petition before the Family Court to set aside the ex parte order, yet did not avail the opportunity and instead the present application has been filed by way of a revision on merits.

It has been tenaciously submitted by Mr. Mukherjee that the order passed by the Civil Court is of paramount importance and that it is to be followed by Criminal Court. Reliance for the purpose is placed on 87 (1931) Crl. LJ 151 (Bhagwant Singh v. Surjit Kaur), a judgment of the Punjab and Haryana High Court, wherein it was observed that where the decree of Civil Court is directly on the issue of the liability of the quantum of maintenance, it is obviously a judgment of a Court of competent jurisdiction and that in view of Section 127(2), Cr.P.C. it would be obligatory for a Magistrate to follow the judgment of a competent Civil Court specifically on the point of maintenance and consequently cancel or vary the earlier order. The decision has no relevance to the present case. Section 127(2), Cr.P.C. provided that where it appears to the Magistrate that in consequence of any decision of a competent Civil Court any order made u/s 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. The power is ordinarily to be exercised at the level of the Magistrate making the order u/s 125, Cr.P.C. The discretion so vested in the Magistrate is not proper to be appropriated by this Court at the revisional stage. It is open to the petitioner to approach the learned Judge, Family Court, with the decree of the Civil Court, for whatever it is worth and urge u/s 127(2), Cr.P C. for a consequential order as may be appropriate, if at all and if such a petition is filed, that Court is best suited to consider the question. I would not like to interfere with the discretion while exercising jurisdiction u/s 19(1) of the Family Courts Act.

A further fact which is also to be kept in view in dealing with this aspect is that by the date the order of maintenance was passed by the learned Judge, Family Court, the divorce had not been decreed and it came only on 20-1-1993. Even a further fact which assumes importance is that even though opp. party No. 1 had filed a application for passing of decree of divorce and had also stated that she would not claim any maintenance in future or take legal action against the petitioner, yet had reversed her stand and had initiated the 125, Cr.P.C proceeding and intended to contest it by all means as is evident from the order dated 4-1-1993 of the Family Court. It can hence be held that she no longer desired to bind herself to the waiver made by her in the divorce suit. Again whatever may be the relative rights the petitioner and opp. party No. 1 as regards the claim of maintenance, yet there is no denying the fact that opp, party No. 2 as the son of the petitioner is entitled to maintenance and that could never be defeated by the outcome of the decree in the divorce suit.

Now the question of effect of the decree of divorce may be considered. The claim of maintenance u/s 125, Cr. P.C. is also available to a divorced wife until she has remarried because of the definition of ''wife'' in Explanation (b) to the proviso to Section 125(1), Cr.P.C. The right to get maintenance u/s 125, Cr.P.C. is an independent statutory right of the wife apart from her entitlement to it u/s 26 of the Hindu Marriage Act. The provisions of Section 125 are available to all wives irrespective of their religious faith. The right to get the maintenance is not always the same as the right to get maintenance under the Hindu Marriage Act. The question was considered by a learned Single Judge of this Court in Sarojini Sahu and Another Vs. Siba Prasad Sahu, , wherein it was held that the provision of Section 125 has been engrafted as serving a social purpose and specially meant to protect the women and children. The right of maintenance granted under personal law is not enforceable u/s 125, Cr.P.C. and that the Section as is enacted in the Code of 1973 makes a departure of the old corresponding Section, i.e. Section 488 of the 1898 Code, inasmuch as whereas in the old Section a wife whose marriage had ceased was automatically disentitled to maintenance, under the new Section even a divorced wife continues to be entitled to receive maintenance until she is remarried.

It is however the submission of Mr. Mukherjee that after the Civil Court has adjudicated the case between the parties and not only decreed divorce but also held the wife as not entitled to maintenance, it is an order which is to be respected by the Criminal Court. Developing the point he also submitted that where the marriage itself has been anulled being void, the wife should not be entitled to maintenance in a proceeding u/s 125, Cr.P.C. The first part of the submission cannot be acceded as axiomatic. Every case has to be decided on its own facts and it would be hazardous to lay down a general proposition, but this much can be said that merely because the Civil Court comes to hold while directing divorce that the wife is not entitled to maintenance, it would not deprive her of her statutory right to claim maintenance in a Criminal Court, though the Criminal Court has to consider the order of the Civil Court when an application is made before it u/s 127(2) and pass appropriate order either reversing or modifying the order of maintenance. The question may be different when the marriage itself has been anulled as being void. So far as the proceeding u/s 125, Cr.P.C. is concerned, it has been uniformly held that strict proof of marriage is not necessary and that where the parties were living as husband and wife and the fact appears from evidence, the lady, for the limited purpose of Section 125, will be held as the wife and would be entitled to maintenance. The position also holds good where a strict form or marriage has not been undergone between the parties but it is shown that there was some form of marriage between the parties and thereafter they lived as husband and wife. Their relationship as such would be accepted for the purpose of Section 125, Cr.P.C. But all such decisions substantiate the fact and the thought underlying all of them is that in fact the lady was the wife of the person concerned. If however it is shown that she was in fact never the wife or that their relationship as husband and wife was void ab initio, she may well become disentitled to maintenance. Hence, where a Civil Court decides that the marriage between the parties was void, such decision has to be respected by the Criminal Court and no finding can be reached over and above it of parties having the relationship as husband and wife entitled the wife to maintenance.

After giving my anxious consideration, I do not find any merit in the revision which is dismissed.