Jasprit Kaur And Others vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

A very interesting but an intricate situation which has emerged to be considered by this Court in the present Criminal Revision, is an interse claim of

determination of permanent alimony to be granted under Section 25 of the Hindu Marriage Act vis-Ã -vis its affect on determination of maintenance

claimed under Section 125 CrPC, when it is being determined to be granted by the Criminal Courts in exercising its powers under Section 125 CrPC,

particularly determining the maintenance payable in relation to the child.

Brief facts as involved in the instant case which have emerged consideration are that the revisionist herein, who is the wife, she has filed an

application under Section 125 of CrPC, for grant of interim maintenance. The application was filed by her on her behalf as well as on behalf of the

respondent Nos. 2 and 3, who are the minor children, born out of the matrimony with the opposite party to the Misc. Criminal Case No. 340 of

2015, Smt. Jaspreet Kaur and others v. Shri Paminder Singh, which was instituted by her on 17th June 2019 before the Court of Additional Judge,

Family Court, Dehradun.

In the pleadings raised in 125 CrPC application, she has contended that she got married with the opposite party i.e. respondent No. 2 herein in

accordance with the Hindu rites and rituals on 10th December 1995 at Chandigarh, Punjab, and as a consequence of the marriage, out of the

matrimony, two children were born i.e. the applicant Nos. 2 and 3 to the application filed under Section 125 CrPC. Based on the various factual

backdrops, the revisionist herein, after portraying the income, accruing to the husband (respondent No. 2 herein), had prayed for that she may be

granted maintenance to maintain herself, as well as her children in accordance with the social status which they would otherwise have enjoined had

the matrimony subsisted between her and respondent No. 2.

She has further contended in her pleadings that she would be entitled for the maintenance under Section 125 CrPC, because there was an act of

desertion at the behest of respondent No. 2, as she was thrown out of the matrimonial home from 25th July 2014, and thereafter he i.e. Respondent

No. 2, has not discharged his matrimonial obligations. The proceeding was contested by respondent No. 2 by filing an objection to the application being

paper No. 19 (ka) on 26.05.2016, and later on, after the contest put in, the learned Family Court, by the judgement impugned under challenge i.e. dated

17th June 2019, had partially allowed the application under Section 125 CrPC, and as a consequence thereto, after recording all the finding of facts

pertaining to the income accruing to the respondent No. 2, and all the controversial backdrops of matrimonial relationship between them has ultimately

decided the application under Section 125 CrPC by virtue of the following directions:-

“16. -125 , 1973,

0 821/2015 25,00,000/- ( )

-

â€

The learned Family Court, Dehradun has rejected the application filed by the revisionist under Section 125 CrPC on the ground that since the

revisionist was the recipient of a permanent alimony under Section 25 of the Hindu Marriage Act as rendered on in Original Suit No. 821 of 2015,

Jasprieet Kaur v. Paminder Singh under Section 13 to be read with Section 25 of Hindu Marriage Act. The Court has drawn an inference that in

accordance with the decision rendered in Section 25, proceedings of the Hindu Marriage Act, since the permanent alimony, which has been settled to

in the following manner (as quoted hereunder) had held that the application under Section 125 CrPC, claim for maintenance for herself and for the

minor children that deserves to be rejected. Particularly, the inference which has been sought to be harped upon by the learned counsel for the

respondent/husband is that in view of the findings which has been recorded by the learned Family Court in the impugned judgement rendered in 125

CrPC proceedings dated 17th June 2019, the permanent alimony of Rs. 25,00,000/- (Rupees Twenty Five Lakh) which has been determined as to be

made payable for maintenance of the child as well as the wife. The operative portion of the judgement dated 17th June 2019 is quoted hereunder:-

“

13

- 821/2016, ,

10.12.1995 -

35.

25,00,000/- ( )

- â€

An interesting question, which has emerged for consideration is as to whether while adjudicating upon the proceedings by the learned Family Court

under Section 13 for dissolution of marriage, when the provisions contained under Section 25 of the Hindu Marriage Act is taken into consideration for

awarding permanent alimony, as to whether at all even if there is a determination of maintenance directed to be made payable to the wife, as well as

to the child, whether the said judgement settling the maintenance accordingly could be created as an embargo to deny the maintenance to the child

claimed by invoking the provisions contained under Section 125 of the CrPC?

The learned counsel for the respondent submitted that since it is a permanent settlement of a relationship with a condition by paying of a permanent

alimony to the tune of Rs. 25,00,000/-(Rupees Twenty Five Lakh), it would be inclusive of the maintenance, which was to be paid towards the child,

because in accordance with the finding recorded in the judgement of the learned Family Court dated 17th June 2019, the said determination was made

by the Court by keeping the maintenance of child also in mind. On the contrary, the learned counsel for the revisionist has submitted that if she is not

entitled for maintenance under Section 125 CrPC, in the light of permanent alimony which has been settled to her under Section 25 of the Hindu

Marriage Act to the tune of Rs. 25,00,000/-(Rupees Twenty Five Lakh), in that eventuality also, the maintenance payable to the children could still be

claimed by invoking the provisions contained under Section 125 CrPC, it cannot be denied to the children, merely on account of the permanent

alimony, granted by the judgement dated 17th June 2019, under Section 25 of the Hindu Marriage Act.

In order to further elucidate his arguments, he has made reference to the provisions contained under Section 25 of the Hindu Marriage Act itself,

which is quoted hereunder:-

“25 Permanent alimony and maintenance.

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to

it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall (The words “while the applicant

remains unmarriedâ€​ omitted by Act 68 of 1976) pay to the applicant for her or his maintenance and support such gross sum or such monthly or

periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the

income and other property of the applicant , the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and

any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it

may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that

she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the

instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].â€​

This Court is of the view that, on a simpliciter reading of the provisions contained under Section 25 of the Hindu Marriage Act, it contemplates a

settlement of consolidated amount of maintenance by way of alimony which could be directed to be made payable on an application of either of

spouse for the purposes either by the wife or by the husband as the case may be by way of a settlement of all the terms and conditions of the

matrimonial relationship, in order to meet up the amount which was to be incurred by either of the parties to the proceedings subsequent to the final

culmination by way of dissolution of the matrimonial dispute by way of a maintenance.

I am of the view that, the provisions contained under Section 25 of the Hindu Marriage Act, in itself where it contemplates a settlement by way of

permanent alimony and maintenance, it only contemplates a determination of maintenance vis-Ã -vis the wife or the husband as the case may be and

that too in the light of the liability to be accrued for maintenance with either of the parties to the matrimony. On analysis of Section 25 of the Hindu

Marriage Act, it is found that the provision under Section 25 of the Hindu Marriage Act in itself does not speak about that it has got any bearing with

regards to the determination of maintenance which is likely to be payable towards the children, who are otherwise covered under Section 125 of the

CrPC, but they do not fall within the ambit and scope of consideration in the application filed under Section 25 of the Hindu Marriage Act. Section 125

(1) Cr.PC reads as under:-

“125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental

abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such

person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred

rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that

the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the

Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. “

The learned counsel for the respondent/husband had placed reliance on a Division Bench judgement dated 13.05.2019, rendered in First Appeal

No. 1 of 2013, Smt. Himani @ Suman v. Sri Rohit Bish.t In the said case which was arising out of the proceedings for dissolution of marriage under

Section 13 of the Hindu Marriage Act, at the first appellate stage a final determination was made in the Appeal and as a consequence of the applying

the principles contained under Section 125 CrPC and as a consequence thereto, the Division Bench of this Court, in its judgement dated 13th May

2019 has made the following observations:-

“6. Having said this we do consider it necessary that a permanent alimony be fixed. The husband is already paying an amount of Rs.4,000/-

(Rupees Four Thousand Only) under Section 125 of CrPC to the wife. We deem it fit to grant a permanent alimony of Rs.5,50,000/ - (Rupees Five

Lakh Fifty Thousand Only) to the wife, which shall be given by the respondent to the appellant within a period of three months from today. As this is a

one time permanent alimony this shall also bring to a closure the proceedings under Section 125 of CrPC. All the same for this the parties may move

an appropriate application before the court concerned.

In the aforesaid First Appeal the Division Bench of this Court, while settling the amount by way of permanent alimony under Section 25 of Hindu

Marriage Act, the Court has held that as far as the wife is concerned, after the settlement of permanent alimony under Section 25 of Hindu Marriage

Act, whose claim for maintenance would otherwise falling within the ambit of determination to be made under Section 125 CrPC, will not be entitled

for any further maintenance under Section 125 of the CrPC, after the settlement of the permanent alimony made under Section 25 of the Hindu

Marriage Act. The said judgement was not at all determining the impact of maintenance payable towards child under Section 125 CrPC, viz-a-viz its

effect due to determination of permanent alimony to wife under Section 25 of the Hindu Marriage Act. Hence, I am of the view that the said

judgement would not apply at all in the present case.

With all due reverence at my command to the said judgement of the Division Bench of this Court, on which the reliance has been placed by the

learned counsel for the respondent, I too agree with the said legal preposition to the effect that as soon as the permanent alimony is settled, which

considers the determination of maintenance payable to the wife within the ambit of Section 25 of the Hindu Marriage Act, if it is decided by the Courts

of law then the wife would not be entitled for any maintenance under Section 125 CrPC. Consequently, while accepting the said preposition of law

that as far as the application for the maintenance filed under Section 125 CrPC by the wife, which is a subject matter of consideration in the present

revision, would be treated to be rejected as far as it relates to the claim of maintenance by wife.

The second consideration, which falls into within the domain of consideration is as to whether in such an eventuality, where permanent alimony has

been determined under Section 25 of the Hindu Marriage Act, for the grant of maintenance to the wife. Whether the maintenance still could be

claimed under Section 125 of CrPC for the children? Whether maintenance could be denied to the child merely on the pretext that the wife has been

awarded with the permanent alimony under Section 25 of the Hindu Marriage Act?

As already observed above that as far as the provisions contained under Section 25 of the Hindu Marriage Act, is concerned, the Court has

already held that it only considers the determination of interse alimony, interse payable between the husband and the wife only, and any determination

which is made under Section 25 of the Hindu Marriage Act will not fall to be taken into consideration or create any embargo or restriction in the

determination of maintenance, which is to be payable to the children as the same would fall to be exclusively within the ambit of Section 125 CrPC.

The learned counsel for the revisionist has placed reliance on a judgement rendered by Gauhati High Court in the case of Rupak Chowdhury v.

State of Assam and Another, reported in 2019 SCC Online Gau 933, wherein the co-ordinate Bench of Gauhati High Court, in an identical

situation was dealing with the situation when a wife has been awarded permanent alimony under Section 25 of the Hindu Marriage Act, in the

proceedings under Section 13 of the Hindu Marriage Act for the dissolution of marriage, it has held therein that as far as the maintenance of the

children under Section 125 CrPC is concerned, that will still continue to subsist to be considered on its exclusive merits and the same cannot be denied

by the Courts on the pretext that the determination of permanent alimony between the husband and the wife has taken place under Section 25 of the

Hindu Marriage Act. In relation thereto, a reference may be had to the contents of para 3 as well as para 6 of the said judgement, which read as

under:-

“3. To make a brief of the matter it can be seen from the record that owing to the marital dispute between the parties, there was divorce in

between them as on 03.10.2013, as per order and decree in F.C. (Civil) No.473/2008, under Section 13 of the Hindu Marriage Act. The present

petitioner paid Rs.5 lacs to the respondent as a permanent alimony. At the relevant point of time, there was another petition pending before the same

Family Court praying for maintenance for the respondent/ wife as well as her minor son which was also disposed of on 10.09.2013, in F.C. (Crl.)

No.22/2009 (prior to disposal of the divorce case), where in the learned Trial Court grant the maintenance of Rs.2500/- to the wife and Rs.2000/- to

the minor child of the parties, by its order.

The learned counsel for the respondent/wife however contended that such an objection raised by the petitioner towards the maintenance of the

child is not maintainable as because he being the father has failed to discharge his liability in proper manner and the respondent/wife is to incur lots of

expenses while upbringing the child who is a student of Class-III and has to bear much expenses towards the education like quarterly fees, uniforms,

annual fees, school bus fare @ Rs.1200/- per month and other miscellaneous expenses apart from fooding and lodging etc.â€​

In the case at hand, at the time when the revisionist has filed the application for the grant of maintenance in consonance to the income accruing to

the respondent/husband, wherein she has projected that on account of his profitable engagement the income which was accruing to him on account of

having sufficient immovable property and being the owner of a Departmental Store from where the income is shown to have been accruing to him @

Rs. 1,50,000/- and apart from various other businesses in which the respondent/husband is said to be engaged, the revisionist-wife has claimed for

payment of maintenance of Rs. 1,00,000/- lakh per month. The said application filed by the revisionist under Section 125 CrPC has been compositively

rejected by the learned Family Court by the impugned judgement dated 17th June 2019, on the ground that since the permanent alimony under Section

25 of the Hindu Marriage Act has been accorded, there could not be any further determination of maintenance either permanent or interim at the

behest of the revisionist which included the minor children also. Since having already held that the determination of permanent alimony under Section

25 of the Hindu Marriage Act, will not have any bearing as far as the claim of maintenance of the children under Section 125 CrPC are concerned,

because their claim does not fall to be within the ambit of consideration under Section 25 of the Hindu Marriage Act. Thus, this revision is partly

allowed only to the extent that the claim of maintenance raised by the wife under Section 125 CrPC for the children after the grant of permanent

alimony in the proceedings under Section 13 of the Hindu Marriage Act, by the judgement dated 17th June 2019, that would too stand covered by the

Division Bench judgement rendered by this Court, as referred in para 6 of the said judgement Rupak Chowdhury (supra), which has already been

quoted in earlier paragraph of this judgement. The children claim for maintenance, is held to be independent to the maintenance determined to wife

under Section 25 of Hindu Marriage Act, and would still fall for determination under Section 125 CrPC.

But as far as the determination of maintenance for the children are concerned, by invoking the providence contained under Section 125 CrPC, its

quantification is concerned, this Court is of the view that the decision rendered in a regular proceeding by implications of Section 25 of the Hindu

Marriage Act will not cloud the claim of maintenance for the children for grant of maintenance the under Section 125 of CrPC, hence, the rejection of

their claim by impugned order is faulted of and that part of the judgement rejecting the application under Section 125 CrPC so far it related to the

children is hereby quashed and the revision is partly allowed.

The matter is remitted back to the learned Family Court, Dehradun only to the limited extent to reconsider the claim of maintenance of the children

in accordance with the Section 125 CrPC and to make a fresh determination as far as their maintenance is concerned.

Thus, revision partly succeeds, the impugned judgement stands modified accordingly. However, there would be no order as to cost.