Samriti Sharma vs Chander Kumar Sharma

M.M. Punchhi, J.

This petition under section 482, Code of Criminal Procedure, is at the instance of a wife who has been denied maintenance in proceedings under section 125, Code of Criminal Procedure.

To dispose of this petition, the cause of estrangement between the spouses need not be noticed. Minimal facts enabling in that regard only would require attention.

Application for maintenance under section 125, Code of Criminal Procedure, was made by the wife against the husband on 7th November, 1981, before a Judicial Magistrate 1st Class, Nabha. Before hand, as it appears the husband had filed a petition for divorce against the wife in the Court of the Additional District Judge, Chandigarh. In those proceedings, the wife had claimed maintenance pendants lite. The Additional District Judge vide order dated November 30, 1981 fixed maintenance pendente lite at Rs. 200/ per mensem. The husband preferred Civil Revision No. 3105 of 1981 before this Court which was allowed on February 18,1982, by G.C. Mital, J. The wife was not allowed maintenance pendente lite because G.C. Mital, J. was of the view that it could not be believed that the wife had not an income of Rs. 450/500 per mensem as that was her earlier statement in guardianship proceedings and which statement of her''s had not been controverted by her till 11th September, 1981, the day the guardianship proceeding culminated in favour of the husband. Finally it was opined by G.C. Mital, J. that the wife had thus sufficient means to maintain herself as also to fight the litigation. The guardianship proceedings referred to by the Hon''ble Judge pertained to the only offspring born out of the wedlock named Annu. Seemingly, the wife in support of her claim to the guardianship of the child had given out that she was doing tuition work which fetched her about Rs. 450/500 per mensem. On that basis the learned trial Magistrate took the view the findings recorded by G.C. Mital, J. in Civil Revision No. 3105 of 1981 were binding on him and support for the view was obtained from a Division Bench Judgment of this Court reported in Bhagwant Singh v. Surjit Kaur, 1981 P.L.R. 219. In the late precedent, it was held that it would be obligatory for a Magistrate to follow the judgment of a competent Civil Court, specifically on the point of maintenance and consequently to cancel or vary the earlier order of the Criminal Court under section 125 of the New Code, accordingly. The dictate of the Division Bench was obviously in keeping with the language of section 127(2) of the Code of Criminal Procedure. The wife''s revision petition before the Additional Sessions Judge, Patiala, to have the order of the learned Magistrate upset was dismissed and the view reiterated. This has given rise to the present petition.

It may mentioned that the petitioner by now is a divorced wife. On 12th February,1982, the husband''s petition for divorce was dismissed by the Additional District Judge, Chandigarh. However, in F.A.O. No. 6/11 of 1982, that order was upset by this Court at the instance of the husband and divorce granted. But that would not make any difference. In Chapter IX of the Code of Criminal Procedure the word wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Since the petitioner has not so far remarried, she would ordinarily be entitled to maintain a petition under section 125, Code of Criminal Procedure. But here it has to be seen whether the judgment in Civil Revision 3105 of 1981 scuttles that claim.

The operation of an order under section 24 of the Hindu Marriage Act is coterminus with the conclusion of the litigation during which it arose. Such an order cannot operate beyond the date on which the main proceedings conclude. See in this regard a Division Bench judgment of this Court, to which I was a party in Sohan Lal v. Kamalesh, A.I.R. 1984 Punjab & Haryana 332. On the interpretation of S.24 it was held that the legislature intended to give maintenance to the indigent spouse only till disposal of the main petition. Thus the order passed in Civil Revision 3105 of 1981 which was conversely an upsetting of the order of grant of maintenance, could not operate for all the time, for the order which it had sought to upset was itself operative till 12th February, 1982, the date when the divorce petition was dismissed. In other words, the basis of granting or nongranting of maintenance pendente lite cannot have permanent binding influence for all times to come. That even cannot be called the decision of a competent Civil Court in the sense in which the Division Bench in Bhagwant Singh''s case (supra) understood it. The Courts below having put that decision on the pedestal of a decision of competent Civil Court having a binding value for all times to come, attracting thereto the ratio of Bhagwant Singh''s case (supra) appears to me negation of justice and not in keeping with the object and spirit for which section 125, Code of Criminal Procedure, was enacted. That benign provision has remained on the statute book to provide succour and relief to destitute wives and children and now to parents also. These views of mine are in consonance with the law laid down by the Supreme Court in Captain Ramesh Chander Kaushal v. Mr. Veena Kaushal and others, AIR 1978 Supreme Court 1807. It has been held therein that the principle that a decision regarding maintenance by a Civil Court of competent jurisdiction must prevail against a like decision by a Criminal Court has no application to a case where pending proceedings under section 125, Code of Criminal Procedure, a Civil Court passes an interim order for maintenance to a wife in proceedings for divorce by the husband. The reasoning given by Supreme Court was that such decision by the Civil Court is not a final determination under the Hindu Adoption and Maintenance Act but merely an order pendente lite under section 24 of Hindu Marriage Act. Out of the two alternatives the one which advanced the causethe cause of the derelictswas adopted by the Court. And in this regard, and it appears to me, the decision of a Civil Court under the Hindu Adoption and Maintenance Act for Hindus is a decision of a competent Civil Court within the concept as understood by the Bench in Bhagwant Singh''s case (supra). Thus the decision in C.R. 3105 of 1981 is not and was never intended to be final between the parties so as to bar the petition and discretion of the Criminal Court. Thus I am of the considered view that the claim of the wife could not have been negatived solely on the existence of decision in Civil Revision 3105 of 1981 and had otherwise to be adjudicated upon on its own merits having regard to the circumstances prevailing till the date of the decision. It is not unknown that in order to obtain relief from Guardian and Matrimonial Courts. Courts often of sentimentality impromptu devices are adopted and statements made to gain an advantage or to avoid suffering of a disadvantage. Admissions made in pursuits of those designs often are withdrawn and Courts have permitted them to be withdrawn, though normally not giving any credit to the withdrawal of those admissions. The wife may have been activated with some such motives. She cannot for ever be made to pin down to those. She has in the instant proceedings claimed herself now to be destitute. In this situation : the trial Magistrate as also the Additional Sessions Judge were in error, in my view, in not judging the claim of the petitioner on its own merits. In the matter of relief, however, if the wife was found entitled to maintenance, the Court could have even curtailed the period on striet construction (though it is not a must) so as to take out therefrom the period during which the decision in Civil Revision 3105 of 1981 was legally to operate. But that again was for the Court.

For the foregoing reasons, I am of the considered view that there has been a failure of justice in this case requiring interference under section 482, Code of Criminal Procedure. This view of mine also meets the preliminary objection made by the learned counsel for the respondent that interference should not be caused in such proceedings when two Courts on facts have decided in his favour; more so when a second revision petition is barred. But this is not a second revision petition. It is a petition invoking inherent powers of this Court which comes to be deployed always to secure the ends of justice. Failure of justice, as in the present case cannot be allowed to escape. Thus I order quashing both the impugned orders. Sequally the matter is remitted back to the learned trial Magistrate to redecide the case in accordance with law and in the light of the observations aforemade. It is made clear that it would be open to the parties to amend their pleadings and lead such further evidence which they may deem proper so as to apprise the Court their latest financial position, for in the presence of the decree of divorce, neglect or refusal to maintain the wife is legally writ large on the face of it. JUDGMENTed accordingly. The parties through their counsel are directed to put in appearance before the trial Magistrate on 11th February, 1985.

JUDGMENT accordingly.