Dwarku Devi vs Gursahai

A.L. Vaidya, J.—The present Petitioner is the wife of the Respondent. She preferred a petition u/s 125 of the Code of Criminal Procedure against her husband-Respondent, before the Sub-Divisional Judicial Magistrate, Sundernagar, on the ground that she was legally wedded wife of the Respondent who had contracted second marriage and was turned out from the matrimonial house by the Respondent. According to the Petitioner, she was residing with her father who had died and as she had no source of income, hence the petition was preferred. It was also pleaded in the petition that earlier the Petitioner had filed a suit for maintenance which was decreed but the execution proceedings preferred by her did not bear any fruit and the Respondent had not been paying the maintenance. One daughter was born out of the said wedlock who was married by the Petitioner and all the expenses were borne out by her. Husband-Respondent contested the petition.

The trial Magistrate framed the following points for determination:

Whether the Respondent has contracted second marriage and the Petitioner was turned out by the Respondent as alleged?

Whether the Respondent is having sufficient means who neglected or refused to maintain the Petitioner?

Whether the Petitioner is unable to maintain herself?

Final order.

All the aforesaid points were decided in the affirmative and the petition was allowed. The Respondent-husband was directed to pay Rs. 200 per month to the Petitioner for her maintenance from the date of filing of the petition.

The aforesaid order was assailed in a revision petition by the Respondent-husband before the learned Sessions Judge, Mandi who after hearing the parties came to the conclusion that the Civil Court''s decree in favour of the wife under the Hindu Adoptions and Maintenance Act was a bar to the filing of the petition u/s 125 of the Code of Criminal Procedure. However, it was held that the husband was possessed of means to provide maintenance to the wife, which means included income of Rs. 1,000 per month being earned by running a tea stall.

The aforesaid order passed by the learned Sessions Judge, has been assailed in the present petition on various grounds.

Learned Counsel for the parties have been heard and the entire record has been scrutinised minutely.

The sole point which requires determination in the present proceedings pertains to the effect of Civil Court''s decree for maintenance passed in favour of the present Petitioner and against the husband the present proceedings preferred u/s 125 of the Code of Criminal Procedure.

There is no dispute on factual side that the Civil Court had awarded maintenance at the rate of Rs. 50 per month in favour of the present Petitioner. There is also no dispute that this decree was passed somewhere in the early seventies. The certified copy of that decree has not been produced, but factual position as discussed above has not been disputed. The present petition u/s 125 of the Code of Criminal Procedure was filed in June 1988.

Needless to say, the provision envisaged u/s 125 of the Code of Criminal Procedure is a remedial measure which has been enacted with the object of enabling deserted wives, helpless and deserted children and destitute parents, to secure the much needed relief, so as to prevent vagrancy. This provision u/s 125 of the Code of Criminal Procedure is speedy remedy available to the aggrieved person and it is on account of that the maximum maintenance could not exceed Rs. 500 under this provision.

In order to have proper maintenance a party can take help of the Hindu Adoptions and Maintenance Act. The procedure under this Act to be followed is a lengthy one and has to be finally gone into to procure a decree of maintenance. This aspect of the matter is again not disputed.

There is no doubt that a decree for maintenance passed by a Civil Court at a later stage can be varied and the amount of maintenance fixed by a decree of the Court can be altered subsequently if there was a material change in the circumstances justifying such alteration. This is the provision envisaged u/s 25 of the Hindu Adoptions and Maintenance Act.

It is being argued in the present proceedings that remedy available to the Petitioner was u/s 25 of the Hindu Adoptions and Maintenance Act and she could ask for alteration in the amount of maintenance especially when after Civil Court''s decree circumstances have been changed so much especially price hike was there in every field and with that background Rs. 50 per month maintenance allowed awarded in early seventies could not be sufficient for a person to make both ends meet today at least at the time of tiling of the petition u/s 125 of the Code of Criminal Procedure.

In such circumstances can a deserted wife be asked to knock the door of Civil Court u/s 25 of the Hindu Adoptions and Maintenance Act and to undergo that lengthy procedure to procure the alteration of the maintenance amount especially when she has no other means to support herself and the Respondent even was not paying the said amount decreed in her favour? The Petitioner had to file execution proceedings which as stated by the husband himself were still pending. This Court is of considered view that in the case of present nature where right to maintenance was not being disputed and which otherwise legally stood established, wife has every right to approach Magistrate u/s 125 of the Code of Criminal Procedure to redress her grievance. It is correct that in case the Civil Court had not accepted right of Petitioner to be maintained by the husband, that finding of the Civil Court could be a bar for making approach u/s 125 of the Code of Criminal Procedure but in the present case factual position, as discussed above, is quite distinct.

Learned Counsel for the parties have tried to derive some benefit in support of the submissions put forth by them from the decided precedents.

In Vishwanath Pundlik Chavan Vs. Sau. Nirmala and others, . which has been relied upon on behalf of the Petitioner, it has been held that where maintenance has already been granted by Civil Court to the applicant under the Hindu Adoptions and Maintenance Act, 1956, application u/s 125 was not a bar because of decision of Civil Court. Para 5 of the aforesaid case is being reproduced herein below for the sake of convenience, which runs as under:

However, there is a later decision of this Court in re In Re: Taralakshmi Manuprasad, which the learned Counsel for the applicant was fair enough to refer to. That was a case in which the Court held that (at p 499 of AIR)- "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 under 488. Of course, the existence of such a decree is relevant when the Magistrate is considering what form of order he should ma ice u/s 488 and the Magistrate should make it clear in I is 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 Linga Gounder Vs. Raman, it has been held that existence of a decree for maintenance passed by a Civil Court does not bar the jurisdiction of a Magistrate to entertain a petition u/s 125 of the Code of Criminal Procedure. It has been further held that Civil Court''s decree for maintenance passed in 1970 and the proceedings u/s 125 of the Code of Criminal Procedure were taken in 1975 the quantum of maintenance could be fixed at a higher rate than what was granted in the decree.

On behalf of the Respondent, much reliance has been made upon 1986 Cri LJ 1216 (Bom HC), Murlidhar Chintaman Waghmare v. Smt. Pratibha Murlidhar Waghmare and Anr. The relevant observations made in this case are referred here as under:

The proceedings in the civil Court are substantial whereas the proceedings u/s 125 of the Code of Criminal Procedure are of a summary nature. Once the civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the Criminal Court u/s 125 cannot sit in appeal over the said decision. This itself, without anything more is sufficient to set aside the impugned order of maintenance in favour of the wife. Even Section 127(2) of the Code of Criminal Procedure contemplates cancellation of the order passed u/s 125 after the decision of the Civil Court.

Ratio of the aforesaid precedent is not at all applicable to the facts of the present case. In the above reported case, civil Court had held that wife was not entitled to maintenance and that finding shall be a bar for proceeding u/s 125 of the Code of Criminal Procedure. Here, in the present case the Civil Court held the wife to be entitled for maintenance, which aspect is not, in a way, in dispute so far as the present proceedings are concerned.

Learned Sessions Judge has been influenced by the decree of civil Court which according to the learned Judge amounted final determination of a civil right and that must prevail upon against the like decision by a criminal Court. There is absolutely no dispute to the proposition that rights held by a civil Court were final. So far as the parties were concerned in the present case right determined by the Civil Court was that the wife was legally entitled to maintenance under the Hindu Adoptions and Maintenance Act. That right so determined by the Civil Court was binding on the criminal Court but here in the background of the present case, the learned Sessions Judge fell into error that even Rs. 50 per month allowed by Civil Court''s decree was final and the only remedy open to the wife for enhancement of the maintenance was u/s 25 of the Hindu Adoptions and Maintenance Act. This aspect of the interpretation does rot appeal to reasoning at all especially when the wife cannot be forced to select a time consuming procedure to be adopted in preference to summary procedure which was otherwise available to her u/s 125 of the Code of Criminal Procedure.

In vieW of the foregoing reasons, order under reference passed by the learned Sessions Judge is accordingly quashed and the order of maintenance passed by the learned trial Magistrate is maintained. It may be referred here that amount of Rs. 200 per month awarded by the learned trial Magistrate would be in addition to Rs. 50 per month awarded by the Civil Court. Accordingly, petition stands disposed of.