Neeta Chauhan vs Mahipal Singh Chauhan

Sharad Kumar Sharma, J

The provisions contained under Section 125 of the Cr.P.C. contemplates grant of maintenance to either of the spouse only in an eventuality when the applicant for the claim of maintenance succeeds to show that there bas been deliberate avoidance on the part of either to sustain and maintain the spouse. Section 125 of the Cr.P.C. 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 [***], 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.

[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

Explanation.-For the purposes of this Chapter.-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

[(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month's allowance [allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

In the case at hand, there has been chain of litigation, which is going inter se between the parties, for example, the proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was initiated by the present revisionist and the same has been dismissed and an appeal against it is pending consideration before this Court and as informed to this Court that is yet to be admitted. There has also been proceedings under Section 13 of the Hindu Marriage Act, which has been drawn by the respondent, which was decreed, against which, yet again, an appeal at the behest of the revisionist, the same is too pending consideration.

According to the finding which has been recorded in the impugned order, it shows that the applicant has also drawn proceedings under the Protection of Women from Domestic Violence Act, in which, the Court of Chief Judicial Magistrate, Dehradun had passed an order and had awarded a maintenance of Rs.10,000/- p.m. to the revisionist by an order dated 4th October, 2016. However, its application has been kept in abeyance in an appeal preferred at the behest of the respondent. Be that as it may.

By virtue of the impugned order, which has been rendered by the Principal Judge Family Court, Dehradun in Case No.118 of 2011, Smt. Neeta Chauhan Vs. Mahipal Singh Chauhan, the Court while considering the application under Section 125 of the Cr.P.C. has awarded maintenance of Rs.5,000/- p.m., which is subject matter of consideration in the present revision at the behest of revisionist claiming enhancement of maintenance.

The Court while assigning its reason had taken into consideration that the applicant is already the beneficiary of grant of maintenance under the Domestic Violence Act, though it might be that it had been momentarily stayed in appeal by this Court, but its consequence would abide by the decision likely to be taken by the Appellate Court.

It has been argued by the learned counsel for the respondent that the parties to the proceedings are parents to the minor children, who in accordance with the argument, which has been extended by Mr. S.K. Jain, learned Senior Counsel, based on the statement recorded before the Court below, the children right from the initial stage have been residing with the father only and, on scrutiny of the statement, what he wants to portray is that looking to the statement which has been recorded, since she herself has voluntarily declined to discharge her matrimonial obligations, which has resulted into the grant of decree of divorce, she would not be even entitled for the maintenance already granted @ Rs.5,000/- p.m. under Section 125 of the Cr.P.C. But as far as the propriety of the grant of maintenance is concerned, at this stage, it can not be questioned at the behest of the respondent for the reason being that the judgment of 31st July, 2017, has not been put to challenge by the respondent against grant of maintenance under Section 125 Cr.P.C..

This Court at this stage would only be concerned as to whether the quantum of maintenance which has been awarded by the Family Court commensurate with the probability of maintenance by the wife, which she would be entitled to receive. Maintenance provided under different provisions of law cannot be permitted to be utilized by either of the party as a profit orientation scheme and various factors and circumstances are to be considered by the Court before granting the maintenance.

Considering the stage at which the parties have reached and also considering the fact that the respondent happens to be a retired person now and also in view of the fact that the matrimony already stands dissolved, this Court is of the view that the maintenance, which has been granted to the tune of Rs.5,000/- and which is being paid by the respondent need not to be interfered by this Court, while exercising its revisional jurisdiction, as it does not satisfy the parameters which are required to be considered for the grant of maintenance but still, since the said order has not been challenged by the respondent, the same is maintained and the revision is dismissed for enhancement of the amount, considering the effect of various proceedings already going on.

Thus the Revision is dismissed. There would be no order as to costs.