Mohinder Pal Singh vs Manjit Kaur and another

Swatanter Kumar, J.

This revision is directed against the order of the learned Additional Sessions Judge, Amritsar dated 20.5.1994. Vide this order the learned Additional Sessions Judge while sitting in revision against the order of the learned Magistrate dated 20.5.1995 awarded maintenance under Section 125 Cr.P.C enhancing the amount from Rs. 350/to Rs. 500/ per month to the wife and from Rs.150/ to Rs. 300/ per month to the child.

The facts in this case are hardly controverted between the parties. Petitioner Mohinder Pal Singh was married to Mst. Manjit Kaur on 13.12.1985. It is stated that in the month of August, 1989 the wife was turned out of the house in three clothes which she was wearing alongwith a minor child and she was sent to her parents home. All efforts of reconciliation went in vain. The husband filed divorce petition against the wife in August, 1990 for seeking a divorce. A divorce deed alleged to have been executed between the parties on 12.7.1988 was also produced in Court. The divorce proceedings are pending between the parties. According to the respondentwife, the document dated 12.7.1987 is a false document and in the alternative it is stated that the alleged document of mutual divorce was obtained by fraud as the husband wanted to go to United States and wanted to show that he was married to American girl and then he was to call both the petitioners there. The learned Magistrate passed a detailed order dated 20.5.1994 after hearing the parties at length and came to the conclusion that the income of the husband was not less than Rs. 1500/ per month and gave the aforesaid maintenance to the petitioners before her respectively. The said order was assailed in a revision petition filed by the wife and the child, which was disposed of vide order dated 25.5.1995 wherein the learned Additional Sessions Judge enhanced the maintenance as mentioned above.

While challenging the order of the learned Additional Sessions Judge, the contentions of the learned counsel for the petitioner are :

(i) No revision could be filed before the learned Additional Sessions Judge because awarding of interim maintenance was an interlocutory order and no criminal revision lies against such an order;

(ii) There was a divorce between the parties by mutual consent by executing a deed of divorce dated 12.7.1987. There was no sufficient reason for the wife and the child to live away from the petitioner and a divorced wife would not be entitled to any maintenance;

(iii) The wife had given up all her claims by executing the document dated 12.7.1987.

Now I proceed to discuss the first submission made by the learned counsel for the petitioner. If the argument of the learned counsel for the petitioner is accepted, in that event even the present revision petition filed by the petitioner himself would also not be maintainable. The submission being that the revision would not lie against grant of interim maintenance because it is an interlocutory order and revision before the Sessions Judge was not maintainable. If the said revision was not maintainable in that event the present revision of the petitioner would also not be tenable because it is against an interlocutory order. Thus, this argument of the learned counsel for the petitioner is a selfdestructive submission.

Learned counsel for the petitioner relies upon a judgment of this Court in the case of Harjit Singh v. Jasjit Kaur, 1989(2) Recent Criminal Report 191 : 1989(2) PLR 465 where the Court held that grant of interim maintainance is an interlocutory order and no revision against the same is maintainable. While the counsel for the respondent has relied upon the view taken by learned Judge of this Court in the case of Sumer Chand alias Sumer Nath v. Sandhuran Rani and another, 1987(2) Recent Criminal Reports 357 : 1987 (Vol.10) Marriage Law Journal 436 . In this case it was held that by an order of interim maintenance the rights of the parties are affected and decided and it cannot be called an interlocutory order. The revision in such circumstances would be maintainable. It is clear from the above facts that application for interim maintenance has been finally decided by the Court so as to give finality to the rights and obligations between the parties during the pendency of the main petition which obviously is likely to take considerable time. This order of granting or declining to grant maintainance cannot be termed as an interlocutory order simlicitor so as a bring it within the mischief of Section 397(2) of the Code of Criminal Procedure. This order cannot be termed as a step for advancement of proceedings but is a definite determination of the rights and obligations of the parties for considerable period. With respect to the view expressed by S.S. Grewal, J.in the case of Harjit Singh (supra) I would prefer to follow the view of Ujjagar Singh, J. in Sumer Chand''s case (supra). Justice S.S. Grewal, while passing the judgment in the above case, did not consider the view expressed by Justice Ujjagar Singh in Sumer Chand''s case (supra) which was the existing view of this Court.

While rejecting the first contention of learned counsel for the petitioner it is held that the order passed by the Court fixing an interim maintenance during the pendency of a petition under Section 125 Cr.P.C. after taking into consideration the application and affidavit filed in support of the respective cases by the parties are revisable by the Court of competent jurisdiction.

The other two submissions of the learned counsel for the petitioner are also liable to be rejected at this stage. The parties have yet to lead oral and other documentary evidence. The pleas that have been raised in regard to the execution of the document dated 12.7.1988 includes the plea that the said document was executed as a result of misrepresentation and a fraud, the document is not legally binding upon the parties. The question is not only pending before the learned trial Magistrate but is also involved in other civil/matrimonial proceedings which are pending between the parties. Thus, it will not be proper even for this Court to comment upon the merits of the case in this regard because there is a likelihood of such findings/observations adversely affecting the rights of either of the parties. The alleged documents dated 12.7.1988 may also not bind the parties specially in view of the fact that the provisions of the Hindu Marriage Act do not permit dissolution of marriage otherwise than the grounds and procedure provided in this special Act. The parties admit to have been married in accordance with Hindu rites and it is not the case of either of them that they would not be governed by the provisions of the said Act.

There are serious allegations made by the wife against the husband. There is a child born to the parties from marriage. It is also stated by the wife that she stayed with the petitioner as his lawfully wedded wife even after the fake document dated 12.7.1988 is stated to have been executed. The wife is stated to have been turned out of her matrimonial home in bare three clothes and there was demand of dowry and money made by the husband. She has to look after herself and her eight years old child who is studying in second standard. The bar of Section 125(4) of Criminal Procedure Code does not apply in the present case because the wife appears to have disclosed a sufficient ground for not living with the husband. Even if the alleged document of 12.7.1988 is taken into consideration still the wife would be entitled to claim maintenance as per the principles of law settled by the Supreme Court in Bai Tahira v. Ali Hussain Fidaalli "1979 Supreme Court Cases 316 where the court held that every divorcee otherwise eligible is entitled to the benefit of maintenance allowance and the dissolution of marriage makes no difference to this right." The counsel for the respondent has relied upon the judgments of this Court in the case of Smt. Parbati v. Fakkar Singh, 1991(2) P.L.R. 330 and Ajaib Din v. Janki, 1994(1) Recent C.R. 664 . In these cases the Court had directed the payment of maintenance to the wife irrespective of the claim raised by the husband that the wives were not entitled to maintenance. In the present case it is stated that the husband is running a video shop and also does repairing work of electrical equipments. His income is stated to be more than Rs. 2000/ per month. Another factor which has weighed with this Court is that while the learned Additional District Judge had granted maintenance under Section 24 of Hindu Marriage Act against the petitioner assessing his income of Rs. 2000/, the said order was not assailed by the petitioner either on the ground that the wife was not entitled to get maintenance legally or that the amount assessed by the Additional District Judge was not proper. Even the order of the Magistrate was not assailed before the Additional Sessions Judge by the husband. It is only when the amount was enhanced by the learned Additional Sessions Judge that the present revision petition has been filed. In the present day it is not so easy to bring up a child and educate him. By no stretch the amount of maintenance fixed by the learned Additional Sessions Judge can be termed as unreasonable or unjustifiable on any ground whatsoever.

In view of the facts and circumstances stated above the revision petition is dismissed. There shall be no order as to costs. The petitioner shall pay the arrears within one month from today and would pay regularly the monthly maintenance as directed by the Court below