Subhash Chand vs Neelam Devi

Anoop Chitkara, J

The petition coming on for admission this day, the Court passed the following:

Case no. & details of S. 125 CrPC application

Pet. No.5 of 2008 allowed on 30.4.2010 by learned JMFC, Court No.1, Hamirpur.

Details of order passed by Sessions Court

Cr. Revision No.8 of 2010 dismissed on 4.5.2012 by learned Sessions Judge, Hamirpur.

Challenging the order of release of maintenance to legally married wife, who lives separately, her husband came up before this Court by filing the present petition under Section 482 Cr.PC seeking reversal of the orders passed by JMFC and affirmed by the Sessions Court.

Brief facts of the case are that the petitioner had solemnized wedding with respondent-wife in accordance with Hindu rites and customs on 13.11.2000 and two daughters were born from this marriage. However, due to continuous ill-treatment, physical violence and taunts, the lady could not continue to stay and left her matrimonial home. Thereafter, she started residing with her brother. Unable to maintain herself, she filed above captioned petition for grant of maintenance.

I have heard learned counsel for the parties and have gone through the Court files and the pleadings.

ANALYSIS AND FINDING

After appreciating evidence and financial capacities of husband and wife, Ld. JMFC, Court No.1, Hamirpur awarded maintenance to the tune of Rs.2500/- per month from the date of filing of the petition.

Aggrieved by the said order, the husband challenged the same before Sessions Judge, who vide judgment captioned above, dismissed the petition. It would be appropriate to extract Para 12 of the judgment, which reads as follows:

"12. Regarding income of the petitioner the respondent has alleged that her husband is running a Hardware shop and he is hale and hearty and earing Rs. 40,000/- - Rs. 50,000/- per month. Though the factum of his income has been denied by the petitioner in his reply as well as statement in the court but he has not denied the fact that he is running Hardware shop. There is nothing on the record to show that he is not an able bodied person. It can also be inferred from the evidence on record that he is also owner of landed property. Due to all this, it can be said that the petitioner is having sufficient means to maintain the respondent."

Ld. counsel for the petitioner argued that wife cannot claim maintenance after passing of decree of divorce.

Mr. Vijay Bir Singh, learned Legal Aid Counsel, appearing for the respondent wife, argued that the application for maintenance was filed way back in 2008, whereas the decree of divorce was granted only on 18.3.2020. Ld. Counsel further argued that even after divorce, the wife who was legally wedded is entitled to maintenance subject to the stipulations of S. 125 CrPC.

In Rajnesh v. Neha, (2021) 2 SCC 324, Hon'ble Supreme Court holds,

[60]. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

[61] To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

Ld. Counsel for the petitioner has handed over a downloaded copy of the judgment dated 18-3-2020, passed by Family Court Hamirpur, HP, in HMA No. 101 of 2016, Subhash Chand v. Neelma Devi. Its perusal shows that Ld. Sessions Judge had considered the order granting maintenance. Thus, Ld. Court was aware of such maintenance and duly considered it while granting the maintenance under S. 125 CrPC.

Given above, the impugned orders are well reasoned and call for no interference.

In the facts and circumstances peculiar to this case, the petition is dismissed. However, this order shall not prohibit any of the parties to seek legal remedies under section 127 CrPC in accordance with law. Pending applications, if any, are also closed.