Chand Dhawan Vs Jawaharlal Dhawan [ SC ]

SMT. CHAND DHAWAN

Vs.


JAWAHARLAL DHAWAN [1993] RD-SC 303 (11 June 1993)

PUNCHHI, M.M.

PUNCHHI, M.M.

YOGESHWAR DAYAL (J)

CITATION: 1993 SCR (3) 954 1993 SCC (3) 406 JT 1993 (4) 22 1993 SCALE (3)1

ACT:

% Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any decree' in S. 25-Dismissing of matrimonial petition, held, does not constitute `only decree' for award of permanent maintenance or alimony--Marital status has to be affected or disrupted for maintenance to be awarded--Evidence Act, 1862, s. 41 Hindu Marriage Act, 1955--S.25-Hindu Adoptions and Maintenance Act, 1956--S.18--Held, Court cannot grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other-Code of Criminal Procedure 1973, s. 125.

Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25- Hindu Adoptions and Maintenance Act, 1956-S. 18-Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit interchangeabil- ity so as to destroy distinction.


HEADNOTE:

The parties were married in 1972 in Punjab. In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant-wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home. However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife. The appellant-wife refuted the charge. The Court granted her maintenance pendente lite at Rs. 1,000 p.m. The husband not paving this amount, the divorce proceedings stand stayed.

On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under S. 24. She also claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955.

On appeal, the High Court held that an application under S.

25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act.

Dismissing the appeal, this Court

HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss. 9to 14 of the Act.

In (other words, without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.

Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bom 27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428;

Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206;

Darshan Singh v. Mst. Daso., AIR 1980 Raj 102; Smt.

Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 and Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed.

Smt. Swaran Lata v.Sukhvinder Kumar (1986) 1 Hindu LR 363;

Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan v. Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla Jagannadha Prasad v. Smt. Shilla Lalitha Kumari 1988 Hindu LR 26, overruled.

Durga Das v. Smt. Tara Rani, AIR & H 141, referred to.

2.A Court intervening under the Hindu Marriage Act undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted. It also retains the power subsequently to be invoked on application by a party entitled to relief. A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.

3.While sustaining her marriage and preserving her marital status, a Hindu wife's claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder.

4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Carew, & Co. v. Union of India [1975] 2 SCC 791 and Motor Owners' Insurance Co. Ltd. v. Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to.

5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction. is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties.

By rejecting a claim, the matrimonial court does make an appealable decree. in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status.


CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of 1991.

From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990.

D.V. Sehgal and N.K. Aggarwal for the Appellant.

G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent.

The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos.

2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated.

The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab.

Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 (hereafter referred to as the Act') seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was not a consenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce.

On coming to know of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect:

"We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed.

We also agree that since the parties have not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed.

Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own costs.

On the basis of the above statement, the court passed the following order, the same day:

"The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties are left to bear their own costs. The file be consigned." It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and not peace as hoped.

Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there.

The wife then went in an offensive. She moved the court of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life.

Simultaneously she moved the court under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim contest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both counts. Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.

Hence these appeals.

959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder:

"25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, very, modify or rescind any such order in such manner as the court may deem just.

(3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just]." It is relevant to reproduce Section 28 as well:

"28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order." Right from its inception, at the unamended stage, the words "at the time of passing any decree or any time subsequent thereto" posed difficulty. The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn. It was also gathered that if no request for alimony was made at the time of passing the decree the same relief could be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression "any decree" was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent. Some of the High Courts also had occasion to distinguish between the expression "passing any decree" referred to in section 25 (1) with "decrees made" referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion.

A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR [1961] Gujarat 202; ruled that the words "at the time of passing any decree or any time subsequent thereto" occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto. It was viewed that the expression "any decree" did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed.

In Shantaram Gopalshet Narkar v. Hirabai, AIR [1962] Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the Hindu Marriage Act and one of the decrees can. be under section 10(1) (B). And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1).

In Minarani Majumdar v. Dasarath Majumdar AIR [1963] Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section. Harilal's case (supra) of the Gujarat High Court was noticed and relied upon.

A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR [1964] Bombay 83 - vol. 51 relying on the earlier decision of that court in Shantaram Gopalshet's case (supra) and kadia Hiralal's case (supra) reaffirmed the view that the expression "passing of any decree" only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony.

A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati & Another AIR [1967] Orissa 163 - Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view.

A three-Judge full bench of the Punjab and Haryana High Court in Durga 962 as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 - Vol. 58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub-section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce.

A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held not maintainable.

In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 - Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression "passing any decree" occurring in section 25 and the expression decree made" under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief.

A Division Bench of the Delhi High court too in Smt. Sushma v. Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa.

Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition. It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word "decree" in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.

Following Delhi High Court's decision in Sushma's case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 - Vol. 75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists.

963 A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible.

A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld.

A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on "necessity of the times" expressing that technicalities should not be allowed to away any court. In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse.

Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a "decree" for the purposes of section 25 of the Act, though a "decree" for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings.

A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 - Vol. 78 omitting the word "passing" from the expression, interpreted the expression "any decree" to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.

Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari [1988] 1 Hindu Law Reporter 26 and some other cases which need not be multiplied.

The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed.

Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965 with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage.

And in order to avoid conflict of perceptions the legislature while codifying the Hindu 'Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.

Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction.

We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features:

(i) the provision applies to all and not only to Hindus;

and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.

But this is a measure in the alternative to provide destitute wives.

This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India [1975] 2 SCC 791 at pages 803-804. Towards interpreting statutes, the court must endeavour to see its legislative intendment.

Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners' Insurance Company, Limited vs. Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.

On the afore-analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage.

It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.

On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.

Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Court's orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith.

U.R. Appeal dismissed.

Financially stable wife can’t claim maintenance: Bombay high court

Bombay High Court - Original Judgment
Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 144 OF 2013
IN

M.J.PETITION NO. A - 382 OF 2008 Madhu Gupta ]

Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)


Vs.


Pravin Kumar Gupta ]
Age 65 years, Retired ]
Residing at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)

WITH

CIVIL APPLICATION NO. 137 OF 2013
IN
F.C.A.NO. 144 OF 2013
IN
M.J.PETITION NO. A-382 OF 2008
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Bombay High Court

Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Applicant/Appellant
(Ori. Respondent)
IN THE MATTER BETWEEN:
Madhu Gupta ]
Age 61 years, Occ: Housewife ]
Residing at 504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Off. Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)

Vs.


Pravin Kumar Gupta ]
Age 65 years, Retired ]
Residing at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
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WITH
CIVIL APPLICATION NO. 16 OF 2014
IN
F.C.A.NO. 144 OF 2013
Pravin Kumar Gupta ]
1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Off Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]
Temporarily Residing at ]
40, Denzil Ave, ]
St. Clair, NSW 2759, ]
Sydney, Australia ]..Applicant/Respondent
IN THE MATTER BETWEEN:
Madhu Gupta ]
504, Sheetal `A' Wing ]
Swami Samarth Nagar, ]
Four Bungalows Andheri West ]
Mumbai-400 053 ].. Appellant
(Ori. Respondent)
Vs.
Pravin Kumar Gupta ]
at 1105, 11th floor ]
Panchavati C.H.S. Ltd. ]
Yari Road, Versova ]
Andheri (West), Mumbai-400 061 ]..Respondent
(Ori. Petitioner)
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.....
Mrs. Mrunalini Deshmukh and Ms. Devika Deshmukh along with
Mr. Mahesh Londhe and Ms. Radha Ved Advocates i/b M/s.
Sanjay Udeshi and Co. for Appellant in FCA No. 144 of 2013 and
Applicant in CAM No. 137 of 2013 and Respondent in CAM No.
16 of 2014
Mr. Dattatray P. Adarkar Advocate for Respondent in FCA No.
144 of 2013 and CAM No. 137 of 2013 and Applicant in CAM
No. 16 of 2014
.....
CORAM : SMT.V.K.TAHILRAMANI AND
SHRI. P.N.DESHMUKH, JJ.
DATED : FEBRUARY 11, 2014
JUDGMENT: [PER SMT. V.K.TAHILRAMANI,J.] :
1 Heard the learned counsel for the appellant-wife and
the learned counsel for the respondent-husband. By consent of
the parties, the matter is taken up for final hearing and
disposal. For the sake of convenience, hereinafter, the
appellant will be referred to as "the wife" and the respondent
will be referred to as "the husband".
2 This Family Court Appeal has been filed by the wife
against the judgment and order dated 22.10.2012 passed in
M.J. Petition No. A-382 of 2008 by the Family Court No.2,
Bandra, Mumbai, whereby her counter-claim for maintenance
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was dismissed. Admitted facts in this matter are that they
have two children i.e. one son Anindya and one daughter. Both
the children are married and they are settled abroad. The
husband had filed a petition for divorce on the ground of
cruelty which came to be dismissed. He has not challenged the
said decision in the petition for divorce. The wife had filed
counter-claim seeking judicial separation and maintenance of
Rs.15,000/- per month. The husband contested the counterclaim
by filing his Written Statement. The husband's petition
for divorce was dismissed on 13.1.2009 by the Family Court.
Thereafter, the wife adduced her evidence claiming for a
decree of judicial separation and maintenance of Rs.15,000/-.
On 13.8.2008, the Family Court exparte decreed the counterclaim
and accordingly decree of judicial separation was passed
and the husband was directed to pay Rs.25,000/- per month as
maintenance to the wife. The husband preferred Misc. Civil
Application for setting aside exparte decree passed on
13.8.2008. However, he did not challenge the decree of
judicial separation and he had only prayed for setting aside the
order relating to the maintenance. Misc. Civil Application was
granted on 19.3.2012. Thus, the decree passed on 13.8.2008
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in relation to maintenance, was set aside by order dated
19.3.2012. Thereafter, the wife led her evidence and the
evidence of her son Anindya and the husband adduced his
evidence.
3 It is well settled law that a wife who has no sufficient
permanent source of income, can only claim and get
maintenance from her husband who is having sufficient means.
The burden lies on the wife to prove that the husband has
refused and neglected to maintain her though he is having
sufficient means. The evidence of the wife and son Anindya
shows that the wife is staying separate since 2007 and the
husband has not given any amount to her towards
maintenance. It is an admitted fact that both the parties are
staying separately since the year 2007. As the decree for
judicial separation was granted in favour of the wife and the
decree of judicial separation has not been challenged by the
husband, on this ground the wife has a right to live separately
from husband. The husband has stated in his evidence that he
is staying in Australia and he is doing part-time work at Local
Community College (Nepean Community College). He has
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further stated that he was teaching three courses based on his
skills in Sales and Computers. Each course is of 8 lecturers of 2
hours duration each. He is paid 500 Australian Dollars post-tax
for the full course. His average monthly income post-tax was
400 Australian Dollars.
4 The learned counsel for the wife produced some
documents to show that the husband was a C.E.O. in XL2WIN
CONSULTANCY PVT. LTD. in Australia The said business is
conducted from 40 Denzil Avenue, St. Clair, NSW 2759. She
pointed out that one other firm i.e. Architectural Drafting and
Design Services also carries out business from the very same
address which shows that the husband is connected with the
said business. In order to support the claim that the husband is
connected with both the businesses, she pointed out that the
address of the said two businesses is the same as the
residential address of the husband. As far as these documents
are concerned, they were not produced before the Family
Court. No evidence was led in respect to these documents.
Even if the said documents are taken into consideration, they
do not show the income of the respondent-husband. Hence,
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these documents would be of no use to the appellant-wife.
5 In considering the prayer for maintenance, two issues
have to be considered viz. (1) whether the husband has
capacity to pay maintenance ? and (2) whether the wife has
any source of income to maintain herself ? The evidence of
the husband shows that he was earning an amount of 400
Australian Dollars per month. The wife has to prove that she
does not have any permanent source of income to maintain
herself. The wife is required to prove that she is not having
any permanent source of income and she is unable to maintain
herself. In order to prove the same, the wife has adduced her
evidence and evidence of her son Anindya. It is pertinent to
note that the wife has not specifically pleaded and stated in her
evidence that she is not having any permanent source of
income and that she is unable to maintain herself. It is further
pertinent to note that she has admitted in her crossexamination
in paragraph 52 that near about Rs.50 lakhs have
been deposited in the Banks as Fixed Deposits. As per Section
58 of the Evidence Act, admitted facts need not be proved.
Even otherwise the learned counsel for the appellant-wife has
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admitted that about Rs.50 lakhs is in the name of the wife in
the Bank. The evidence of the wife clearly shows that the wife
has invested Rs.50 lakhs in the Banks in Fixed Deposits and
she is getting interest on the said Fixed Deposits. In such case,
the appellant-wife could have produced and proved the Fixed
Deposit Certificates and rate of interest which she is getting.
Admittedly, she has not produced the Fixed Deposit
Certificates, therefore, it has not come on record that how
much interest she is getting. It is an admitted fact that the
wife is a senior citizen. In such case, she would get more
interest than the other depositors. If 9% is held to be the rate
of interest, then the wife would get Rs.4,50,000/- per year
which means that she would get Rs.37,500/- per month as
interest on Fixed Deposits of Rs.50 lakhs. The wife has stated
in her cross-examination at paragraph 48 that she is ready to
produce the Statements of Accounts of Mutual Funds standing
in her name alone but she has not produced the Statements of
Accounts of Mutual Funds. This shows that she has also made
investments in Mutual Funds in addition to Fixed Deposits
which clearly stand in her name but she has not produced the
same. If she would have produced the Statements of Accounts
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of Mutual Funds, then it would have gone against her,
therefore, she has not produced the same. In such
circumstances, an adverse inference is required to be drawn
against the appellant-wife and it is required to be held that she
is getting some dividends regularly from the investments made
in the Mutual Funds.
6 The wife has admitted in her evidence that she is
staying in Sheetal Apartment at Andheri, Mumbai. The flat in
Sheetal Apartment at Andheri, according to her, was bought
out of the money put in by her and her husband. The husband
has another flat which is also in Andheri in Panchavati Building.
The learned counsel for the respondent-husband has stated
that the flat has been given exclusively to the wife and she is in
exclusive possession of the same. This fact is admitted by the
learned counsel for the appellant-wife. In such case, there is
no question of giving rent for accommodation to the wife.
7 The learned counsel for the appellant-wife submitted
that though the Family Court had held that the wife has to
incur medical expenses, daily expenses, maintenance of
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society etc. yet, the Family Court has not awarded any
maintenance to the wife. She further pointed out that on
30.11.2013 the wife was required to undergo surgery for both
knees and the expenses for the said surgery came to about
Rs.10,39,000/-. She has further stated that the flat in which
the wife is staying is in dire need of repairs and she has
produced a copy of a letter of the Architect dated 9.1.2004
which shows that the flat needs repairs. Thus, it was submitted
that the wife would be required to incur expenses in relation to
the repairs of the flat also. As far as the documents relating to
the medical expenses for knee replacements are concerned,
the said expenses were incurred on 30.12.2013 which was
after the judgment and decree was passed in the present case.
The judgment and decree in the present case was passed on
22.10.2012 and the events mentioned in the documents have
occurred after the judgment and decree has been passed. In
view of this subsequent developments, the judgment passed
by the learned Judge of the Family Court cannot be faulted.
Similar is the situation in respect of the expenses for repairs of
the flat.
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8 It was contended on behalf of the wife that amount
was siphoned off by the husband from their joint account. The
said amount was about Rs.19,85,641/-. It is interesting to note
that the wife herself had not made any mention about the
same in her evidence. The son Anindya has made some
reference to such fact, however, no witness from the Bank has
been examined to prove that the husband had siphoned off
such amount from the joint account.
9 The learned counsel for the appellant-wife reiterated
time and again that the appellant wife was and is a home
maker and she has no independent source of income. It is also
an admitted fact that the wife has Rs.50 lakhs in Bank
Accounts, obviously, as the wife was not earning, the said
amount of Rs.50 lakhs must have come out of the husband's
earning. Besides the amount of Rs.50 lakhs which is deposited
in the Fixed Deposits in the name of the wife, it may be stated
that the husband had deposited Rs.2,00,000/- by way of
interim maintenance for the wife. The wife was allowed to
withdraw the said amount. She has deposited the said amount
in the Bank as Fixed Deposits which is admitted by her in her
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cross-examination in paragraph 58. If really the wife was in
need of money for her maintenance, then definitely she would
have spent the amount and would not have invested it in Fixed
Deposits in the Bank. This shows that the wife is having
sufficient money for her maintenance. The wife is getting at
least an amount of Rs.37,500/- per month from the Fixed
Deposits. In addition, she is getting some additional amount
of interest on Rs.2,00,000/- which has been invested by her
which was received by her by way of interim maintenance. In
addition to this amount, she is getting some amount by way of
interest on the money she has invested in Mutual Funds. All
these amounts are more than sufficient for her maintenance. It
is seen that the wife is having sufficient permanent source of
income to maintain herself.
10 The learned counsel for the respondent-husband
submitted that the wife is having sufficient means for her
survival and therefore, she is not entitled to get maintenance.
He has placed reliance on the ratio laid down by this Court in
the case of Shehnaz Arvind Mudbhatkal Vs. Arvind
Ramkrishna Mudbhatkal reported in 2011(6) Mh. L. J. 719.
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In the said case, this Court observed that the wife was earning
Rs.45,000/- per month as salary and she has received Rs.11
lakhs as back-wages. Her daughters were not dependent on
her. Therefore, this amount is sufficient to the wife for her
maintenance. This Court observed that in such case, the wife
is not entitled for maintenance from the husband. In the
present case, it is seen that the wife is getting more than
Rs.37,500/- per month as interest. She has more than 50 lakhs
in the bank. In addition, the applicant's son is providing money
for her maintenance and other expenses. No one is dependent
on her. Thus, the facts in the decision relied upon and the
facts in the present case are quite similar and the ratio would
apply to the facts of the present case.
11 Looking to the evidence on record, we are of the
opinion that the Judge of the Family Court has rightly held that
the appellant-wife is having sufficient income for her survival
and she has failed to prove that she is entitled for any
maintenance. Thus, we find no merit in the present Appeal.
Appeal is, therefore, dismissed.
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12 In view of dismissal of the Family Court Appeal, Civil
Application Nos. 137 of 2013 and 16 of 2014 do not survive and
are disposed of as such.
[SHRI. P.N.DESHMUKH, J.] [SMT. V.K.TAHILRAMANI, J.]
kandarkar
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Sm. Swastika Sen vs The State Of West Bengal And Sri Pritam Sen (Defendent Argument)

Sm. Swastika Sen vs The State Of West Bengal And Sri Pritam Sen on 3/12/2002

JUDGMENT

M.K. Basu, J.

1. This revisional application under Sections 482 Cr.PC is directed against
the order dated 7.1.2002 passed by the learned SDJM, Alipur in Case No. M-244/01
pending before that Court under Section 125 CrPC rejecting a prayer for interim
maintenance of the petitioner and interim award of Rs. 1500/- per month on
account of the child till the hearing and disposal of the main petition. The
case of the petitioner is as follows.

She was married to the opposite party No. 2 Promit Sen according to Hindu
rites. On 18th June, 1998 soon after the marriage she was subjected to severe
mental and physical torture by the opposite party No. 2 and her in-laws. The
opposite party No. 2 was whimsical, selfish and irresponsible and he used to
abuse the petitioner and to pick up quarrel with her every now and then on
baseless and false accusations. She used to be constantly intimidated,
threatened and assaulted by the opposite party No. 2 on a number of occasions on
the ground of his dissatisfaction in respect of articles given by her parents
during their marriage. Ultimately she was sent by the opposite party No. 2 and
her in-laws to her parental home where she has been residing till now and the
expenses of her and her child's maintenance are being borne by her father. The
opposite party No. 2 neither care to bear any such expense nor paid any visit to
her father's house nor take any information about them. She has no independent
source of income. Under such circumstances she has filed the petition under
Section 125 Cr.PC in question claiming maintenance from the opposite party No. 2
on account of herself as well as the child who was born out of this wedlock. The
petitioner also filed a criminal case against the opposite party No. 2 and the
other in-laws under Sections 498A and 406 IPC which is in the Court of the
learned Magistrate being Jadavpur P.S. Case No. 190/2000. The Police after
investigation has submitted a charge sheet in that case against the opposite
party No. 2 and the other in-laws and that case is still pending in the Court of
SDJM, Alipur for trial. The opposite party No. 2 is a professional singer and is
the owner of an Export oriented Concern Style as M/s. Super Exports having its
office at Mission Road, Bangalore-56, He is also a major shareholder of M/s.
Super Plastic wherefrom he earns more than Rs. 1 1/2 lakhs per month. The
petitioner has 10% share in a Travel Agency Firm under this Style M/s. Capri
International which is owned by her mother but the form of business of that Firm
is absolutely uncallable and since July 2001 she did not receive any
remuneration from that firm in any manner. She has prayed for grant of
maintenance to the tune of Rs. 20,000/- per month for herself and Rs. 10,000/-
per month for the child.

2. The learned SDJM after hearing both sides and perusing a document filed by
both the parties passed the impugned order rejecting the prayer of the
petitioner for grant of interim maintenance and directing payment of Rs. 1500/-
per month by way of interim maintenance for the child. Being aggrieved by this
order the petitioner has preferred this revisional application challenging the
same as erroneous and unjustified being passed on the basis of vague surmises
and conjectures.

3. The contention of Mr. Basu, the learned advocate for the petitioner has
been that it is not understood wherefrom the learned Magistrate could draw the
conclusion that the petitioner was not a destitute lady and need not require any
maintenance. Mr. Basu has criticised the impugned order as improper and perverse
and his findings that the petitioner had some income of her own as totally
unwarranted. According to Mr. Basu, the learned SDJM has not given any reason
for coming to such finding and passing the impugned order and being a non-
speaking order it has been rendered liable to be set aside. In support of his
contention he refers to the decision

wherein it has been held that assigning of reason in an order passed by an
Administrative Authority or a judicial forum is of utmost importance and
necessity. This is so because giving of reason is the sine qua non of ajudicial
order and is a consequence of the principle of natural justice. Mr. Basu then
submits that the provisions of the Cr.PC having been amended by the Act No. 50
of 2001, a Magistrate is no longer required to keep the amount of maintenance
confined within the limit of Rs. 1500/- and in view of such Amending Act, the
limit is only reasonableness. According to him, considering the standard of
living of the parties and the rising price index in respect of the essential
articles which are being necessaries the learned Magistrate ought to have
awarded a much higher amount by way of maintenance for the child. So far as the
wife is concerned, according to Mr. Basu, she having no independent source of
income is entitled to get a reasonable amount of maintenance from the opposite
party No. 2 whose income has already been mentioned above. Mr. Basu refers to a
number of decisions of the Apex Court to bring home his point that the husband
is under a statutory duty to provide maintenance to his married wife and under
the shastric mandate also such an obligation has been cast upon the husband
irrespective of whether the wife has got any stridhan properties or even any
earnings. Mr. Basu's further contention is that in view of the Central Amendment
of Section 125 of the Cr.PC the limit of award of maintenance under the said
section need not be confined to Rs. 1500/- and the learned Magistrate is now at
liberty to award a higher amount if found justified or necessary. The question,
however, has been raised as to whether the said amendment has got any
retrospective effect, that is to say, whether the pending proceedings should be
governed by the same. Inasmuch as, it came into force with effect from 24th
September, 2001 when this proceeding had already been pending. Mr. Basu has
strenuously argued that such a beneficial legislation will have retrospective
effect and such pending proceedings will come under its purview. In this
connection he refers to the decision reported in (1) , (2) . (3) , (4)

AIR 1978 SC 741 & 1807, (5) AIR 1991 SC 1256 and (6) 2000 CCrLr (Cal) 179.

4. As against this, Mr. Gooptu, the learned advocate for the opposite party
No. 2 has argued that the petitioner cannot be entitled to get any award of
maintenance for herself, because she has an independent source of income, a fact
which is prima facie established from the document, namely, Income Tax Return
submitted by her before the Income Tax Authority and the learned Magistrate was
perfectly right refusing to award any interim maintenance at this stage after
being satisfied prima facie from the documents filed by the parties that the
petitioner having submitted Income Tax Return had definitely some source of
income of her own and in view of the legal position she could not be entitled to
get any maintenance from the husband. Mr. Gooptu draws my attention to pages 80
to 83 of the LCR. The Income Tax Statement pertaining to the Assessment Year
1999-2000. The next contention of Mr. Gooptu is that the amount of Rs. 1500/- as
awarded for the child would not be enhanced, inasmuch as, the amendment of
Section 125, Cr.PC as pointed out by Mr. Basu cannot have any retrospective
effect. In support of the contention he cites the following reference:

(1) (Y. Arul Nadar v. Authorised Officer, Land

Reforms, Thanjavur) wherein it has been held that as per the general rule
when an amendment is introduced in the statute governing the case already
pending, the rights and obligations of parties should be decided only according
to the law which existed when the action was begun unless a clear contrary
intention is evident in the Amending Act and there could not be any imputation
of retrospective operation to an Amending Act and that could be done only by the
Amending Act either expressly or by necessary implication; (2) (Bhagat Ram
Sharma v. Union of India and Ors.)

wherein it has been held that it is a matter of legislative practice to
provide while enacting an amending law that an existing provision shall be
deleted and a new provision substituted and such deletion has the effect of
repeal of the existing provision and such a law may also provide for the
introduction of a new provision. It bas been further held therein that amendment
is in fact a wider term and includes abrogation or deletion of a provision in an
existing statute and an amendment of substantive law is not retrospective unless
expressly laid down or by necessary implication inferred; (3) AIR 1924 All 563
(Kashmiri Lal v. Kishen Deb wherein it has been held that inasmuch as the
accused had incurred the liability to have his prosecution sanctioned and the
complainant on the dismissal of his application by the subordinate Judge had
acquired a right to apply for sanction to the Appellate Court, Section 6(sic) of
the General Clauses Act applied to the case and the repeal of the old Section
195 did not affect the investigation and (4) AIR 2000 Mad 167 wherein it has
been held that in case of Motor Vehicles Act being amended and each amending
provision providing for no fault liability cannot be given retrospective effect,
because if such retrospective effect was given, then it would definitely affect
existing right or obligation of the owner of the vehicle in question and the
insurer for no fault of theirs and it has to be decided in consonance with the
law as it stands on the day of its moving, since it is a matter pertaining to
procedure. It has been further held in this judgment that when two
interpretation are found possible regarding the question of retrospectivity, the
interpretation that the provision is prospective will be preferred.

5. Mr. Gooptu placing reliance upon the decision (Bhagban Dutt v. Sm. Kamala
Devi and Anr.) contends that a wife's right to maintenance is not absolute and
in determining the amount of maintenance a Magistrate is competent to take into
consideration the separate income and means of wife. Their Lordships in this
case have further observed that any other construction would be subversive of
the primary purpose of the section and encourage vindictive wives having ample
income and means of their own to misuse the section as a punitive weapon against
their husbands.

6. Mr. Gooptu then contends that Section 125 CrPC is not intended to provide
for a full and final determination of the status and personal rights of the
parties at the interim stage and the jurisdiction conferred by this eection on
the Magistrate is more in the nature of the preventive rather than a remedial
jurisdiction and it is certainly not punitive.

7. He then submits that his client is suffering from chronic thyroid problems
due to which he is undergoing medical treatment under the supervision of various
doctors and a large amount of money has to be mobilised in order to continue his
treatment and such facts are borne out from the medical documents annexed to the
written objection filed by this opposite party No. 2 before the trial Court and
due to such continued ailment and long absence from this city he is unable to
derive any income from his profession, namely, singing Rabindra Sangeet and
consequently he has to depend on others for his subsistence and medical
treatment as has been stated by him on oath in the affidavit.

8. Mr. Gooptu then refers to the decision

to bring home the point that when affidavits are submitted by the parties in
a proceeding for disposal of interim application under Section 125 CrPC, in the
event one version is rejected being untrue or not credible at the interim stage
pending trial, the other is to be accepted prima facie by the trial Court as
proved. Mr. Gooptu has further submitted that the Income Tax Statement of the
petitioner pertaining to the relevant year in question, that is, 2000-2001 has
not been produced before this Court, though the learned counsel of the
petitioner was so directed and on behalf of the petitioner the submission having
been made that no return has been filed by her for the subsequent Assessment
Year it should be taken that the petitioner having violated the mandatory
provisions of the law as she has not submitted the Income Tax Return for the
said Assessment Year, she is liable to serious penal consequences under the
Income Tax Act and the Indian Partnership Act.

9. The question for determination in this revisional application is whether
the impugned order suffers from any impropriety. By this order the learned
Magistrate has refused to grant any interim maintenance in favour of the
petitioner-wife, though he has allowed such maintenance for the child. The
ground on which her prayer for interim maintenance has been rejected appears to
have been couched in the following language.

"Some unproved documents are filed by both parties in the form of
affidavits and counter affidavits. These documents give some hints from which I
prima facie find that the 1st party has some income of her own ................
In view of the above discussed circumstances I think that the 1st party is not a
destitute lady required to be saved from vagrancy....."

10. Such a finding perhaps owes its origin to the existence of the Income Tax
Return (annexed to the affidavit) submitted by the petitioner, Swastika Sen, for
the Assessment Year 1999-2000, that is, for the period from 1.4.1998 to
31.3.1999. However, the learned Magistrate has not made it clear by using
express words and that omission has quite pertinently given rise to such a
criticism levelled by Mr. Basu against the order. This lapse may of course be
due to a poor power of expression on the part of the Magistrate concerned, but
the question which seriously arises is whether owing to such a reason, owing to
the Presiding Officer's inability to apply the appropriate words in the
reasoning part of his order which may be due to his poor expressive capacity,
the order should be thrown away, even though there are good grounds transpiring
from the materials on record justifying the passing of such an order.

11. Section 125(1)(a) CrPC clearly provides that a wife will be entitled to
get an award of maintenance, If, inter alia, she is unable to maintain herself.
It follows that if a wife is an employed person or has a business and earns a
definite sum by way of regular income and.if the Court finds such income as
sufficient for the purpose of enabling her to earn her livelihood, then
certainly she cannot claim maintenance from the husband. This is the clear
dictate of the law and a departure therefrom cannot be permissible. Otherwise,
the expression, "if she is unable to maintain herself' would lose all its
meanings. In the present case, the case of the opposite party-husband is that
the petitioner is a 50% partner of a Travelling Agency along with her mother
running in the name and style of M/s. Capri International and moreover, she is a
dance-teacher and her collective income from the aforesaid sources is not less
than Rs. 1,20,000/- per annum and this would be disclosed from the I.T. Return
submitted by her. A xerox copy of the I.T. Return submitted by the petitioner
before the Income Tax Authority for the Assessment Year 1999-2000 relating to
the period from 1st April, 1998 to 31st March, 1999 has been filed (vide page 80
of the LCR). This return shows that the gross income which she earned during the
said year from her business or profession amounted to Rs. 54,140/- and she paid
income tax of Rs. 414/- on this amount during that year. As against this, the
petitioner has stated in her counter-affidavit (vide page 68 of the LCR) that
the said Travel Agency has become sick industry and the petitioner only has a
share to the extent of 10% on the business of that Travel Agency and she gets
only Rs. 600/- per month. As regards the Income Tax Return purportedly filed by
her, her case is that she was forcibly made to sign this I.T. Return, although
she had no income of her own and she wrote a letter to the Income Tax
Commissioner dated 18.8.1999 stating that the I.T. Return in question had not
been submitted by her since she had no taxable income at all and she was a mere
student, but it was actually filed by her husband and further that the said
Return though filed does not reflect the correct position. A copy of this letter
bearing the stamp of the office of the Income Tax Commissioner initiating its
receipt by the officer has been filed. But this letter practically takes us
nowhere. Along with this Income Tax Return mentioned above statement that (sic)
has been submitted showing that the petitioner earned a gross income of Rs.
54,000/- and odd and paid income tax of Rs. 414/- and they included a balance-
sheet, self-assessment challan and a valuation return and the said Income Tax
Return appears to have been signed by the petitioner herself. It has got some
sanctity in the eye of law. As per the Income Tax Rule an assessee who starts
submitting Income Tax Return has to continue submitting such returns every year.
If she ceases to earn any income, even then she has to file a Nil Statement by
way of Return. Moreover, in her petition the petitioner's own case is that she
has 10% share in the said business and she earns only Rs. 600/- per month. In
such an event also she is required to submit a Income Tax Return although her
income may not be taxable. But curiously enough, the petitioner does not make
any whisper in her affidavits as to whether she has submitted any such Income
Tax Return in the subsequent years. During hearing of argument, on being
approached by me. Mr. Basu, the learned counsel submitted that his client would
not file any copy of such Income Tax Return before this Court relating to the
current year. It is not understood whether she has submitted before the Income
Tax Authority any such Income Tax Return at all during the current year or the
year in question because of her silence in her petition as to this aspect of the
matter. As a result, it is not clear as to whether any Return has at all be
filed, by her for the relevant year before the Income Tax Authority and
accordingly, as argued by the learned advocate for the opposite party, the
question of drawing adverse presumption arises. As per the Rule, once a Return
has been filed, one is required to go on submitting such Returns every year
irrespective of whether one's income has fallen or decreased. Under such
circumstances from the fact that the petitioner has not filed any such Income
Tax Return for the relevant year, not she has stated on affidavit that she has
not submitted any such Return before the Income Tax Authority for the relevant
year, it is to be presumed prima facie that she is witholding the same and . had
it been produced, sufficiently rebutted is a question of fact and cannot be
determined without reference to the evidence which may be adduced by the parties
during the inquiry to be held in the main proceeding.

12. At this stage when the question of payment of interim maintenance is
under consideration and the evidences are yet to be adduced by the parties such
documents and circumstances should serve as yardstick, only prima facie, to
enable the Court to come to a finding and pass an order touching the question of
interim relief. The question raised by the petitioner that the Income Tax Return
submitted by her was the result of force or coercion applied by her husband can
be decided only after taking evidence from both sides and cannot be adjudicated
upon at this stage simply on the basis of a copy of letter allegedly written by
the petitioner to the Income Tax Authority, particularly when such an allegation
does not find place in her affidavit. It would be unsafe and improper to hold
without taking evidence that the Income Tax Return filed by her before the
Income Tax Commissioner, which is an official and authentic document, is
falsified by a mere letter allegedly written by her to that Authority,

13. The Income Tax Return prima facie shows that she had an average income of
about Rs. 4500/- per month and in view of such earnings of the petitioner being
prima facie found from the record, the Court below was not unjustified in
refusing to award any interim maintenance for the wife so long as the main
matter as not heard and disposed of by obtaining evidence from the parties on
the prima facie substantial ground that she could not be said to be unable to
maintain herself during the interim period. However, the manner In which the
ordering part has been expressed by the learned Magistrate is not happy. Without
holding an enquiry he cannot come to such a finding, viz. "..... the 1st party
is not a destitute lady required to be saved from vagrancy." He ought to have
used the phrase, "prima facie" otherwise such an observation conveys a wrong
signal, as if he is disposing of the issue in the main proceeding once for all
-- a course which is fraught with the danger of prejudging of the issue which Is
to be decided after hearing of the main proceeding. It should not be forgotten
that interim orders in respect of such matters are only provisional until final
orders are made and such interim relief is granted only subject to what is found
and enjoined in the final orders and interim orders which are passed on a prima
facie satisfaction of the presiding officer of the concerned Court on the basis
of documents or affidavits may very well be altered, varied or even totally
vacated after considering the evidence both oral and documentary adduced by the
parties during hearing of the main matter.

14. It is true, as has been argued by Mr. Basu, that the learned Magistrate
has not assigned reasons for coming to his conclusions, for example, he has said
that the first party is found to have some income, but he does not discuss from
which documents he makes this observation, although the fact remains, as I have
discussed above, the petitioners drawing an Income regularly has been shown by
the document called Income Tax Return. Similarly, the learned Magistrate has
made the observations that from some 'unproved documents' it has been shown that
the lady was not a destitute person. Here again he ought to have elaborately
made a discussion about such documents which he was referring to. In the absence
of doing that his findings have been rendered unreasoned. Another instance of
the impugned order's being vague and confusing is where the learned Magistrate
uses the expression 'gives some hints'. Giving of hints and furnishing of proof
are totally different concepts and on the basis of the former a Court of law
cannot pass its verdict either granting or denying a relief sought by any party.
Then again, in the concluding part of his order he says that in view of the
'abovediscussed circumstances' he thinks that "the 1st party is not a destitute
lady required to be saved from variance". According to Mr. Basu, there is no
discussion on this point in the least in the body of the judgment and hence the
learned Magistrate's referring to the 'above discussed circumstances' is
absolutely hollow. He argues that due to such paucity of reasoning the order
becomes perverse and on that score alone it should be given a go-by. But this
contention of Mr. Basu is not acceptable to my mind. Simply because reasons have
not been assigned by the trial Court for arriving at a particular finding,
although from the materials on record it is prima facie found that there exist
some good grounds for drawing such conclusions, the said order cannot be set
aside on the sole ground that the Court below has not recorded such reasons or
grounds. This finding may or may not remain unaltered after evidence as adduced
by the parties are considered by the learned Magistrate during the main hearing,
but as an interim order it is quite justified. Since this part of the order does
not suffer from any illegality or infirmity of law I do not find anything to
interfere with the same.

15. The next point urged on behalf of the petitioner is relating to the
second part of the impugned order and is on the alleged inadequacy of the amount
of maintenance that has been awarded by the learned Magistrate on account of
maintenance of the child, namely, Rs. 1500/-. According to Mr, Basu, on the date
on which this order was passed, that is, 7th January, 2002 the amendment of the
CrPC in respect of Section 125(d) of the Code had already come into operation
and therefore, the learned Magistrate's hands were not tied and he was not to be
restricted regarding the quantum of maintenance to be awarded by him under this
section within an amount not exceeding Rs. 1500/-. In other words, since by
virtue of the said amendment a Court of Magistrate under this section became
entitled to award any sum by way of maintenance which would be deemed to be
reasonable in the circumstances, there was nothing to debar the learned
Magistrate from fixing an amount by way of maintained exceeding Rs. 1500/- in
order to do justice to the rising price and cost of living index and also to the
status and standard of living of the petitioner in particular. In support of his
argument Mr. Basu refers to a host of decisions of the Apex Court as well as of
different High Courts. Thus he cites the decision reported in AIR 1991 SC 1256
(Amirtham Kudumbah v. Sarnam Kudumban) wherein it has been held that in case of
a beneficial legislation whatsoever gives restriction use or constitutes an
embargo in the way of giving effect to such a welfare enactment should be
removed and according to Mr. Basu by stretching this logic to the present case,
the benefit of this amendment should be extended to the pending cases also. It
may be mentioned here that the above mentioned amendment came into operation on
and from 24.9.2001 (vide the Government Notification concerned). Mr. Basu also
refers to the decision wherein it has been held that

the words of remedial statute should be so construed as to ensure that the
relief contemplated under the status in the question may not be denied to the
clash intended to be relieved and on the basis of this ruling it should be taken
that the amendment of the CrPC in question should have retrospective operation
even though nowhere that has been mentioned in express terms. Then Mr. Basu
relies upon another ruling (Bengal Immunity Co. Ltd. v. State of

Bihar and Ors.) whereunder Their Lordships enunciated certain principles on
the strength of which propagated that ail beneficial status should be
retrospective operation. The next ruling cited by Mr. Basu is (Muktinarain Jha
v. State of

Bihar) and (Captain R.C. Kaushal v. Mrs. V. Kaushal) whrerein it was held
that the provisions of Section 125 formed a major of social justice for the
purpose of protection the weaker section and with that end in view, according to
Mr. Basu, any legislation containing beneficial provisions should have
retrospective operation.

16. The second line of Mr. Basu's argument consists in the point raised by
him that even if such a legislation is taken to be prospective, even then there
will be no difficulty In granting the relief at the new rate and at the same
time maintaining its prospectivity if with regard to a pending proceeding the
new rate is applied only on and from the date when the amendment takes effect.
In support of this contention he relies upon the decision reported in 1999 CCrLr
116 (Cal HC) and 2000 CCrLr (Cal) 179 (Dhananjoy Samanta v. Sobitri Samanta).

17. As against this, Mr. Gooptu vehemently argues that this petition for
maintenance having been filed on 13.4.2001 this amending provision which came
into effect on 24.9.2001 cannot govern this pending proceeding because of the
general principle that unless a clear, contrary intention is evident in the
amending Act, it cannot be retrospective and must be prospective. In support of
this contention, the decision (Y.A. Nadar v. The

Authorised Officer, Land Reforms, Thanjavur) is referred to wherein it has
been held that when an amendment is introduced in the statute governing the
cases already pending, the rights and obligations of parties should be decided
only according to the law which existed when the action was begun, unless a
clear and contrary intention is evident in the provisions of the amending Act
and there could not be imputation of retrospective operation to an amending Act.
He also cites a further couple of reported judgments to get his argument
strengthened, namely, (1) (Bhagat Ram Sharma v. Unions of India) & (2) AIR 1924
Allahabad 563 which I have already discussed above.

18. Mr. Gooptu raises the question that if the argument of Mr. Basu is taken
to its logical extreme, then by virtue of following of such a principle, namely,
giving retrospective effect to such an amending provisions we may be led to an
irreconcilable situation. Those cases which were filed before the coming into
operation of such a legislation, but which were pending at the time when it came
into operation and as disposed of without getting the benefit of this enactment
will be discriminated against and there may be the emergence of a spate of
applications seeking the newly awarded benefit-- an exigency which the law never
encourage.

19. Be that as it may, it should not be forgotten that after all this is an
application for interim maintenance and the main maintenance application is yet
to be heard. If this question, namely, whether the abovementioned amendment of
Section 125 CrPC should have retrospective effect or not is decided at this
stage, then that may involve the risk of pre-judging of the point falling for
determination in the main application under Section 125 CrPC before the learned
Magistrate. This is a stage wherein the question of granting of interim relief
is taken up for determination and for that purpose such thread-bare analysis of
the materials on record, vis-a-vis, the legal position will be highly
undesirable and also impermissible. The learned Magistrate has awarded a sum of
Rs. 1500/- on account of maintenance of the child by way of interim relief only
and that is not the be-all and end-all of the respective cases of the parties
and that amount has been fixed only as a provisional one in view of meet the
urgency of the situation and the proper and final order as regards all related
questions touching this application for maintenance will be passed by the Court
of Magistrate after taking evidence from both sides and after hearing their
arguments. Hence any observation or verdict given on the controversies raises by
the parties on the questions in issue at this stage will be bound to have
repercussions on the merits of the matter when the learned Magistrate will take
up the same for final hearing and in order to avoid such a possibility of pre-
judging of the issues awaiting determination by the learned Magistrate I refrain
myself from expressing my views on the contentions of the learned advocate for
both sides on this question as to whether the said amendment to Section 125 of
the CrPC in question will have retrospective effective or prospective operation
and (sic) the learned Magistrate could have granted an award of interim
maintenance for the child exceeding Rs. 1500/- a month.

20. Instead, I am inclined to fix a time-limit within which the main
proceeding under Section 125 CrPC in question may be finally disposed of by the
Court below, leaving the impugned order intact.

21. Accordingly, I do not interfere with the impugned order but I direct the
learned Magistrate to finally dispose of the main proceeding, that is, the
application for maintenance under Section 125 CrPC pending before it, within two
months from the date of receipt of the LCR without fail. If any of the parties
does not cooperate, the case may proceed according to law notwithstanding such
non-participation. While disposing of the main matter on merits the Court below
shall not be influenced by any observation made in this judgment regarding the
merits and shall adjudicate upon the same quite independently according to the
law and as per the evidence that may be adduced by the parties before him.

In the result, the revisional application be dismissed. The LCR be sent back
immediately to the Court below along with a copy of this judgment and order.

Interim order of stay, if there is any, be vacated.

Xerox certified copies, if applied for by any party, may be supplied without
delay.

HC: Litigant can not ride two horses simultaneously

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991

JUDGMENT

1. In the instant application, the substantial question of law, in the
public interest, has been raised and requires decision from this Court.
The substantial question of law raised is as under :

"Whether a Judicial Magistrate First Class trying an application
under Section 125 of Cr.P.C., is obliged under law, to stay the
proceedings, on the ground that a Civil Court of competent
jurisdiction has seized the matter in a suit, in which identical
pleadings are made, and same reliefs are claimed by one and the same
applicant/plaintiff, in whose favour the Magistrate has already
awarded interim maintenance ?"

2. The facts giving rise to the above question of law, in nutshell, are
as under :

The applicant and the non-applicant are the legally married spouses.
Their marriage was solmnised as per the customs and rites of Hindu
Religion, some times in the year 1969 at Buldana. Out of the
wed-lock, they have two issues viz. first issue is a son - Sagar who
is living with the applicant while the second issue a daughter Miss
Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar.
The couple had been to Canada and U.S.A. where they stayed for 12 to
13 years along with their children. Both returned some time in the
year 1984 to India and stayed at Buldana till 1986. During this
period, their relations became strained and ultimately on 19/5/86,
the non-applicant filed an application u/S. 125 of Cr.P.C. against
the applicant for maintenance for her and the daughter. Along with
the application for maintenance, the wife had also filed an
application for interim maintenance @ Rs. 500/- p.m. for both the
non-applicants, on the very day. The learned trial Court, after
hearing the parties and considering the facts, awarded Rs. 250.0
p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim
relief. Since the day of the order, the applicant has paid Rs.
24,000/- to the non-applicants as maintenance allowance and that too
in advance. Mr. Vidwanash, the learned counsel for the applicant
submitted that the applicant has made the payment in advance till
October 1991.

3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed
a regular Civil Suit No. 227/86 for permanent alimony and also for
arrears of maintenance. Along with the plaint, an application for the
attachment of the property before judgment was also filed. On
28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following
order on the said application :

"Perused the application and say at Exh. 64. The prayer of the
applicant is that Order of attachment before Judgment be passed or
direct the defendants to furnish solvent surety of Rs. one lakh. By
way of Exh. 64, the defendants showed their willingness to furnish
surety of one lakh. Hence, the defendants are directed to furnish
solvent surety of Rs. one lakh".

In compliance with the above order, on behalf of the defendants, Shri
W. Y. Godbole, resident of Nagpur has furnished the solvent surety
before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the
applicant has filed his written statement in the said Civil Suit,
denying the claim of the non-applicants. The case is now posted for
filing the documents.

4. The applicant filed an application to stay the proceedings of Misc.
Criminal Case No. 114/86 before the Judicial Magistrate, First Class,
Buldana, till the decision of the Regular Civil Suit No. 227/86. The
application was opposed. After hearing the parties, the learned
J.M.F.C., Buldana, rejected the application filed by the applicant for
stay of the Misc. Criminal Case No. 114/86 vide his order dated
24-1-1991.

5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana
in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant
approached this Court.

6. Mr. Vidwans, the learned counsel for the applicant submitted that
though the non-applicant wife instituted two proceedings, one in the
Criminal Court and another in the Civil Court, but the reliefs are one
and the same. The relief sought in the application u/s. 125 of Cr.P.C.
is to the following effect "to direct the opponent to pay the
subsistence allowance of Rs. 500/- p.m. each to both the applicants
Nos. 1 and 2".

In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause
(i) is that "It is, therefore, prayed that this Hon'ble Court be
pleased to decree the claim of the plaintiffs by passing necessary
orders of maintenance against the defendant, directing him to pay
arrears of Rs. 7000/- to the plaintiffs and further be ordered him
to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs
i.e. total Rs. 1000/- p.m. from the date of filing of this suit and
onwards permanently".

The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg.
C.S. No. 227/86 are one and the same.

7. Mr. Vidwans, the learned counsel for the applicant submitted that
practically pleadings are identical and verbatim in both the cases. He
took me through the pleadings of both cases and demonstrated that
practically the paras are identical as much as they are in verbatim.
Following paras of the application u/S. 125 of Cr.P.C. are identical to
the paras of the plaintiff in Reg. Civil Suit.

Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.

4 6 5 7
6 8 7 9
8 10 9 11
10 12 11 13
12 14 13 15
14 16

Therefore, according to Mr. Vidwans, in both the litigations, the fate
would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal
Court. Therefore, as the matter is seized with the Civil Court i.e. in
respect of the maintenance allowance and that too the similar amount
which she alleged to be entitled in the application u/s. 125 of
Cr.P.C., instead multiplying the litigations and to harass the
applicant to lead the evidence in different two courts, in the interest
of justice, the application pending in the court of J.M.F.C., Buldana
be stayed till the decision in the Reg. C.S. No. 227/86. It is further
submitted that any verdict given by the Criminal Court is not binding
on the Civil Court but it is vice versa. The reliefs being the one and
the same, the evidence will be common, so also the documents, it is the
interest of both the parties to get the verdict from the Civil Court.

9. Mr. Vidwans, the learned counsel for the applicant relied upon the
case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported
in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in
para 7 as follows (at page 348) :

"I fail to understand what is the qualitative difference between the
two stands. The parties are merely formulating the same propositions
in the two proceedings in different words. The distinction made by
the learned Judge is without any difference, as observed by the
learned Magistrate and as is also apparent from the record, the
dispute in the criminal complaint also revolves on the pivot whether
or not respondents are the sole agents of the petitioners for sale
and export of the petitioner's goods to the countries concerned. The
learned Addl. Sessions Judge's interpretation is clearly wrong so
far as this aspect is concerned".

In para 8, Their Lordships observed that :

"The other two reasons given by the learned Magistrate and indicated
in para 6 supra, are also sound and the learned Addl. Judge has not
bothered himself to consider them. The learned Magistrate's order
staying the prosecution was eminently just and the learned Addl.
Sessions Judge should not have interfered with it in revision".

The reliance also been placed on the case of William J. W. Ross v.
Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri
LJ 548). In that case before their Lordships, the wife instituted the
proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already
instituted the proceedings for divorce in the Divorce Corut. Their
Lordships observed that -

"I am of opinion that the learned Magistrate would have exercised a
better discretion on receiving an application u/s. 488 against a
husband who had already instituted proceedings in the divorce Court,
if he had referred the applicant for her remedy to the Civil Court.
I do not think that it was the intention of the legislature in S.
489 to encourage applicants to resort to criminal Courts up to the
very time when an order was passed by a competent Civil Court. As
the Civil Court was seized of the matter, it seems to me clear, it
is better that the Civil Court should dispose of it, and in the
circumstances which have arisen in the present case, I am of opinion
that a High Court would stay proceedings in a criminal Court until
the conclusion of the divorce petition. We accordingly direct the
learned Magistrate to stay the hearing of the application u/s. 488,
Cr.P.C., by adjournment from time to time until the conclusion of
the divorce petition".

10. On behalf of the non-applicants, Mr. Khapre, the learned counsel,
opposed the application and submitted that the remedies in the criminal
Court and Civil Court are altogether different. According to him, the
proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are
the summary proceedings for the immediate relief to the wife and other
dependents. In the proceedings u/s 125 Cr.P.C. the Court has
jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to
each claimant. If this amount is inadequate according to clainming
spouse or other claimants, the only remedy available is Civil Suit or
petition u/s. 25 of the Hindu Marriage Act, 1955.

11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila
Karmarkar, entered in the witness box and now the case is posed for her
cross-examination. He further submitted that the principles of res
judicata are not applicable in the instant case because though the
reliefs claimed in both the proceedings are one and the same, the
effect is not one. He further submitted that this Court has no power
under any statute to stay the proceedings. To substantiate his
submissions, he placed reliance on the case of Mohanlal v. Sau.
Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the
case before his Lordship, the wife instituted the proceedings u/s. 125
of Cr.P.C. and also husband filed an application for Judicial
Separation and alimony in the Civil Court against the applicant under
the provisions of the Hindu Marriage Act. An ex parte order was passed
against the husband and she was awarded maintenance of Rs. 300/- p.m.
The Civil Court granted Rs. 100/- p.m. as permanent alimony to the
wife. In that case, the issue was raised to the effect that the
principle of res judicate is applicable. His Lordship held that the
Section 11 of the C.P.C. as such, is not, in terms, applicable to the
proceedings u/s. 125 of Cr.P.C.

12. In the instant case before me, the question of res judicata is not
involved. Shri Vidwans, the learned counsel for the applicant also has
not raised this issue. Therefore, the observations made in the case
supra are not of any assistance to the non-applicants.

13. Reliance also been palaced on the case of In re Taralakshmi
Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91).
In that case their Lordships observed that :

"The mere existence of a decree of a Civil Court directing a certain
sum to be paid for maintenance does not oust the jurisdiction of a
Magistrate in a proper case to make an order u/s. 488. Of course the
existence of such a decree is relevant when the Magistrate is
considering what form of order he should make u/s. 488 and the
Magistrate should make it clear in his order that anything paid
under the decree of the Civil Court will be taken into account
against anything which he may order to be paid".

In the instant case before me, there is no decree passed by the Civil
Court. For the same relief, the non-applicant wife knocked the doors of
the Civil Court as well as of Criminal Court. So, the facts of the case
which was before their Lordships of the Bombay High Court are
altogether different having no relation with the facts and
circumstances before me and, therefore, it is also not of any
assistance.

14. Reliance has also been placed on the case of A. Joseph Fernando v.
Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held
that :

"The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier
though the order in the civil suit was passed earlier. In such
circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is
perfectly maintainable notwithstanding a Civil Court's order for
maintenance. The criminal proceedings can not be quashed".

In the instant application, the applicant has not prayed for quashing
the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C.
The only limited prayer is that the matter being seized with the Civil
Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings
instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the
case decided by the learned Court in the case supra and the facts
before me, being altogether different, this case is also not of any
assistance to the non-applicants.

15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt.
Ltd. (DB), in respect of the same subject matter,
there were two suits instituted though the relief was based on
different cause of action. The subject-matter in controversy in both
the suits being the same, arises out of the same contract and from the
same transaction, the later suit was stayed till the decision of the
earlier suit.

16. Considering the facts and circumstances and the submissions made by
the learned counsel for the parties, the relief in both the cases,
being one and the same, and the Civil Court being seized with the
matter, in the interest of justice, the proceeding pending in the court
of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No.
277/86.

17. The non-applicants could not be allowed to ride two horses at a
time (two simultaneous proceedings in two different Coruts) and could
not be permitted to continue the maintenance proceedings u/s. 125 of
Cr.P.C. when they had already chosen the alternative remedy in Reg.
C.S. No. 227/86. It is well settled law that the judgment of Civil
Court shall prevail over the judgment of Criminal Court. The natural
justice demands that parallel proceedings cannot be allowed to continue
in different Courts.

18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the
matter. Staying the proceedings pending in the Court of J.M.F.C.,
Buldana, will not cause any pre-judice to the non-applicants because
they are already receiving the maintenance allowance @ Rs. 250/- p.m.
for wife and Rs. 150/- p.m. for the daughter.

19. In these terms the application is allowed. Rule made absolute.

20. Ordered accordingly.