Krishan Lal vs Ram Piari

P.K. Jain, J.—This petition has been filed u/s 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') for quashing the order dated June 9,1995 (Annexure P.12) passed by the Judicial Magistrate, Abohar, whereby conditional warrants of arrest for the realisation of the maintenance amount of Rs. 3,900/- have been ordered to be issued against the petitioner.

The necessary facts for the disposal of this petition are that the petitioner was married with respondent No. 1 in the year 1980. Out of this wedlock two children were bom i.e. respondents Nos. 2 and 3. It appears that the relations between the two spouses became strained on account of some family dispute and respondent No. 1 alongwith her two children, respondents Nos. 2 and 3 are alleged to have been turned out of her matrimonial house.

On 31.7.1995, the respondent wife filed an application u/s 125 of the Code seeking maintenance for herself and her two minor children respondents Nos. 2 and 3. The petitioner remained ex-parte in those proceedings. The Judicial Magistrate by order dated 28.11.1994, granted maintenance of Rs. 150/- per month to respondent No. 1 and Rs. 50/- per month to each of the two children i.e. respondents Nos. 2 and 3 with effect from the date of application i.e. 31.7.1991. Dissatisfied with the quantum of maintenance granted to them, the respondents went in revision before the Sessions Court. By order dated 14.12.1992, the Additional Sessions Judge, Ferozepur, enhanced the maintenance allowance from Rs. 100/- per month to Rs. 250/- per month to respondent No. 1 and from Rs. 50/- to Rs. 100/- per month to each of the two children-respondents Nos. 2 and 3. The enhancement was made applicable with effect from 31.7.1991 i.e. date of the original application.

It may be noted that the petitioner remained ex-parte in the revision proceedings as well.

In the meanwhile the petitioner filed a petition for restitution of conjugal rights on 10.9.1991. In these proceedings, respondent No. 1 filed an application u/s 24 of the Hindu Marriage Act claiming expenses of the litigation and maintenance pendente lite. Byorderdatedl6.11.1991 (Annexure P.3) with the mutual consent of the petitioner and respondent No. 1, the Additional Sessions Judge, Sirsa, directed the petitioner to pay Rs. 500/- per month as maintenance pendente lite to respondent No. 1 w.e.f. 16.11.1991. Those proceedings were terminated by judgment dated 25.8.1992. Thereafter, the petitioner filed a petition u/s 13 of the Hindu Marriage Act, for a decree of divorce on 4.10.1993, in which proceedings the maintenance pendente lite has been granted by the Additional Sessions Judge, Sirsa. It is conceded at the Bar that the decree of divorce has been passed by the Court on 4.5.1996.

Respondent No. 1 took out execution for enforcing the maintenance order passed by the Judicial Magistrate for the period 31.7.1991 to 28.2.1993 at the rate of Rs. 450/- per month i.e. Rs. 250/- per month to respondent No. 1 and Rs. 100/- per month to each of the two children-respondents Nos. 2 and 3. The petitioner paid a sum of Rs. 8,550/- to respondent No. 1 on 7.5.1994 for the satisfaction of the claim of the respondents for the said period. The respondents again applied for enforcing the order passed by the Magistrate for the period 1.3.1993 to 28.3.1994, thereby claiming a sum of Rs. 5,400/-. Out of this amount the petitioner paid a sum of Rs. 1,500/- and filed an application objecting to the payment of the remaining amount on the ground that he has already paid the maintenance allowance as per order of the Additional District Judge during the proceedings for restitution of conjugal rights, and thus there was an over-payment which ought to be adjusted towards the arrears now being claimed in the execution proceedings. This objection of the petitioner has been over-ruled by the Judicial Magistrate by the impugned order dated 9.6.1995 (Annexure P.12) and conditional warrants of arrest have been ordered to be issued against the petitioner for realisation of the balance amount of Rs. 3,900/-. The Judicial Magistrate has held that the present execution application has been filed for the period 1.3.1993 to 28.2.1994 for which period the petitioner has not paid any amount of maintenance during the earlier proceedings under the Hindu Marriage Act. Hence the present petition.

I have heard the learend Counsel for the parties and have perused the record.

Mr. O.P.Sharma, Advocate, learned Counsel for the petitioner has argued that order u/s 125 of the Code as well as the order u/s 24 of the Hindu Marriage Act were in force during the period 16.11.1991 to 25.8.1992. It has been further argued that this period is overlapping and once the petitioner has made payment of the maintenance allowance for this period during the proceedings under Hindu Marriage Act, he cannot be asked to pay maintenance again in execution of the proceedings u/s 125 of Code and the petitioner is entitled to the adjustment of over payment made by him earlier in the present executive proceedings taken out for the period 1.3.1993 to 28.2.1994.

On the other hand Mr. S.S. Sidhu, Advocate, learned Counsel for the respondents, has argued that the respondents have taken out execution for enforcing the order of the Magistrate passed u/s 125 of the Code for the period 1.3.1993 to 28.2.1994 for which the petitioner has not made any payment. It has been further argued by the learned Counsel that if the petitioner was aggrieved by any of the two orders passed by the Criminal Court as well as the Civil Court, his remedy was u/s 127 of the Code and he is not entitled to claim, any amount whatsoever. It has been contended by the learned Counsel that the Judicial Magistrate was justified in rejecting the plea raised by the petitioner and in directing the issuance of bailable warrants for realisation of the amount.

I have considered the respective arguments advanced at the Bar.

The factual position regarding the three litigations between the petitioner and respondent No. 1, as detailed above, is not disputed before me. The simple question for decision is whether the petitioner is entitled to claim any adjustment on account of the payment of maintenance allowance during the proceedings under the Hindu Marriage Act in execution of the proceedings for the enforcement of an order u/s 125 of the Code. Sub-section (2) of Section 127 of the Code reads as under :

"(2) Where it appears to the Magistrate that, in consequences 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."

From a bare perusal of this provision, it is evident that on order or decree of a competent Civil Court does not automatically put an end to the jurisdiction of a Criminal Court or wipe out an order when made u/s 125 of the Code. A judicial discretion has been conferred upon the Magistrate to take into consideration all the attending circumstances including the order of the Civil Court to decide as to whether he should cancel or vary the order already passed by him u/s 125 of the Code.

A somewhat similar conflict arose before a Single Bench of the Madras High Court in Nagendra Iyer Vs. Premavathi and Others, . In that case, the order u/s 488 of the Old Code was passed against the husband directing him to pay Rs. 35/- p.m. by way of maintenance to his wife and Rs. 15/- per month to his daughter. Thereupon, the husband filed a suit for fixing the amount of maintenance u/s 23 of the Hindu Adoption and Maintenance Act. A decree was passed declaring the wife and daughter to be entitled to a consolidated amount of Rs. 50/- per month. Thereafter the husband filed an application before the Magistrate for cancellation of the order passed by him earlier u/s 488 of the Old Code. The Magistrate, after hearing the parties, dismissed the application. The husband approached the High Court in its revisional jurisdiction. After considering the provisions of Sub-section (2) of Section 489 of the Old Code (which correspond to Sub-section (2) of Section 127 of the present Code) and certain judgments available on such a conflict, observed as under:

"An order for maintenance is not automatically wiped out by a subsequent Civil Court decree for maintenance. Although the Magistrate has jurisdiction to entertain a petition for alteration of the allowance, even after the Civil Court has quantified the maintenance, yet he will not be exercising his jurisdiction judicially, if, without referring the parties to the Civil Court, he should proceed to consider the altered circumstances with a view to alter the quantum of maintenance already fixed by the Civil Court. In order to prevent conflict of decisions and with a view to avoid an unseemly confrontation between the Civil and the Criminal Courts, the Magistrate will be wise in such circumstances to refuse to reduce or enhance the allowance. When there is a binding Civil-Court''s decree fixing the quantum of maintenance, the proper thing for the Magistrate to do is to refer the party to the Civil Court."

The learned Single Judge concluded the matter as under :

"In the result, I hold that the Magistrate was right in holding that order passed in the M.C. 7 of 1957 did not stand automatically wiped out as a result of the Civil Court decree. He was, therefore, right in refusing to cancel the order passed in MC 7 of 1957. But, if any enforcement of that order is prayed for concurrently with execution of the Civil Court''s decree, he will not be exercising his discretion judicially, if he orders enforcement except, under circumstances which I have already enumerated in this order, viz. in case of insolvency or pauperism. Crl.R.C. 1221 of 1971 will, therefore, stand dismissed."

From the above conclusion, it becomes clear that when there are two orders for maintenance i.e. one passed by the Magistrate u/s 125 of the Code and the other passed by a Civil Court regarding the same period, that in itself will not wipe out the order of the Magistrate and the Magistrate would be justified in refusing to cancel or vary his order in certain circumstances like insolvency or pauperism of the husband. However, regarding the enforcement of the order passed u/s 125 of the Code concurrently with the order of the Civil Court, the Magistrate would not be justified to enforce his order for the same period and he would refer the parties to the Civil Court.

In the case in hand, from a careful perusal of the various payments made by the petitioner to respondent No. 1 from time to time, which fact stands admitted by the respondents, it is evident that a period of 9 months from 16.11.1991 to 25.8.1992 is overlapping. In other words, the order passed u/s 125 of the Code as well as the order passed u/s 24 of the Hindu Marriage Act granting maintenance to respondent No. 1 for the period 16.11.1991 to 25.8.1992 is concurrent. Respondent No. 1 could enforce either of the two orders claiming maintenance for the said period. Admittedly, respondent No. 1 enforced and obtained the maintenance allowance for the said period in the proceedings u/s 24 of the Hindu Marriage Act as well as in execution proceedings filed earlier u/s 125 of the Code. Thus, the petitioner has made an excess payment of Rs. 2,250/- to respondent No. 1 for which he is entitled to the adjustment in the present execution application. In other words, respondent No. 1 can claim a sum of Rs. 750/- after giving adjustment of the over-payment for the period 1.3.1993 to 28.2.1994 whereas respondents Nos.2and 3 are entitled to recover a sum of Rs. 2.400/-. The petitioner has paid only a sum of Rs. 1,500/ - as is evident by the impugned order (Annexure P.12). A sum of Rs. 1,650/- still remains due from the petitioner to the respondents by way of maintenance for the period 1.3.1993 to 28.2.1994.

As a result of the above discussion, this Cri. Miscellaneous application is allowed in part and the petitioner is allowed the adjustment of Rs. 2,250/- towards the maintenance allowance to respondent No. 1 during the period 1.3.1993 to 28.2.1994. As calculated above, a total sum of Rs. 1,650/- becomes due from the petitioner to the respondents for the said period. The petitioner is directed to deposit the said amount in the Court of the Judicial Magistrate for payment of respondents Nos. 1 to 3.

With this modification, the petition stands disposed of.