Smt. Kokla Devi Verma vs Sh. Uttam Singh Verma

V.K. Sharma, Judge

The petitioner and respondent are related to each other as wife and husband, respectively. However, the relations between them turned sour long back. Resultantly, the wife obtained maintenance from the husband u/s 125 of the Code of Criminal Procedure, 1973 (in short ''Cr.PC''). Initially, monthly maintenance of Rs. 100/- was granted in her favour, which was later on enhanced to Rs. 200/- and thereafter to Rs. 500/- and ultimately to Rs. 1,000/- . Against the above backdrop, the wife sought maintenance from the husband u/s 18 of the Hindu Adoptions and Maintenance Act, 1956 (in short ''1956 Act'') and was granted monthly maintenance of Rs. 3,000/- . When she sought to implement this order, the husband raised an objection that the earlier amount of monthly maintenance of Rs. 1,000/- being received by the wife u/s 125 Cr.PC ought to have been adjusted against the monthly maintenance amount ordered in her favour u/s 18 of the 1956 Act. Her prayer in this regard has found favour with the learned Executing Court. Being aggrieved, the wife is before this court in the present revision petition.

It is not disputed that on or about the relevant time the husband was working as Superintendent Grade-II in the office of the Deputy Commissioner, Shimla, H.P. He has since retired from service on attaining the age of superannuation in the year 2007. While in service, he was drawing monthly salary of more than Rs. 10,000/- . Even after retirement he is receiving monthly pension of Rs. 8,000/- approximately, which by now must have gone up.

I have heard the learned counsel for the parties and gone through the impugned order dated 7.12.2009.

There is no dispute with the proposition that ordinarily the amount of maintenance u/s 125 of the Code is taken into consideration at the time of granting maintenance pendente lite and permanent alimony under the provisions of the Hindu Marriage Act, 1956 and may be u/s 18 of the 1956 Act. However, it is done keeping in view the facts and circumstances of each case and on and overall view of the matter. In the present case, admittedly a plea to this effect was raised by the respondent-husband during trial of the petition u/s 18 of the 1956 Act that the amount of monthly maintenance being received by the wife u/s 125 Cr.PC should be adjusted against the amount of maintenance to be awarded to her u/s 18 of the 1956 Act. However, on consideration, such plea did not find favour with the court. It is not disputed that the order of maintenance u/s 18 of the 1956 Act attained finality without being challenged by the husband in the higher court. In such circumstances, as is the settled proposition in common law that the Executing Court cannot go beyond the decree would apply to the present case as well and more so when the husband has an alternative remedy u/s 25 of the 1956 Act, wherein he may apply for alteration of the maintenance amount, particularly in view of changed circumstances such as his subsequent retirement from service. Furthermore, the total amount of maintenance to which the wife is entitled u/s 125 of the Code and Section 18 of the 1956 Act comes to Rs. 4,000/- per month and cannot be said to be on a higher side in the facts and circumstances of the case. In view of the above, the petition is allowed and the impugned order dated 7.12.2009 is quashed.