Rule returnable forthwith and called out hearing.
2. Heard learned Advocate Mrs. Jyoti Dharmadhikari for the applicant and Shri R.R Srivastava, Advocate for the Non-applicant.
3. The chronological event as to the Court proceedings have to be narrated as below since the parties have chosen not to give them per se quatum. Those however, could be narrated as follows:
(i) Parties who were married as per Boudha rites and rituals on 22-10-2000 have been separated.
(ii) The applicant husband filed petition for dissolution of marriage in the Court of the Civil Judge Senior Division, Chandrapur some time in the year 2002 which proceeding was registered as HMP No. 42 of 2002 and has been re-numbered as 772 of 2002.
(iii) After knowing the motion for dissolution by the husband, wife present respondent has filed petition for restitution of conjugal rights before the Family Court, Nagpur which is registered as Case No. A-490 of 2002.
(iv) Since the wife's petition was later in time, it has been stayed.
(v) Wife then filed the proceeding under section 125 of Criminal Procedure Code before the Family Court Nagpur which is registered as Case No. E-427/2002.
(vi) 24-6-2003: Family Court passed an order of interim maintenance in the proceedings under section 125 of Criminal Procedure Code.
(vii) The petitioner has paid total sum of Rs. 16400/- between 9-7-2003 to 12-1-2004, towards interim maintenance from time to time, but not every month regularly.
(viii) 30-6-2003: Wife who had filed application under section 24 of Hindu Marriage Act for maintenance pending litigation in the Court of Civil Judge Senior Division, Chandrapur in applicant's petition for dissolution of marriage. The said Court ordered maintenance as follows:
Rs. 2000/- p.m
:
maintenance pendente lite.
Rs. 3000/-
:
Litigation expenses.
Rs. 300/- p.m
:
For every attendance by order dated 30-6-2003.
(ix) 3-7-2002: In the proceedings under section 125 of Criminal Procedure Code, the Parties filed consent pursis agreeing to pay maintenance at the rate of Rs. 1500/- p.m and the Family Court passed order thereon on 31-7-2002.
(x) 4-9-2002: The applicant herein deposited the arrears of maintenance under section 24 of the Hindu Marriage Act out of which Rs. 44,000/- were towards monthly maintenance.
(xi) The Wife had filed application under section 125(3) of Criminal Procedure Code seeking recovery of arrears of agreed maintenance of Rs. 1500 per month and claimed arrears of Rs. 24,800/-.
(xii) 24th February, 2005: The Principle Judge, Family Court, Nagpur has rejected the petitioner's objection raised in the reply to the wife's claim for arrears of amount of maintenance awarded pursuance to the consent order passed in the proceedings under section 125 of Criminal Procedure Code.
(xiii) Wife has also filed proceedings for monthly maintenance of Rs. 15000/- under the provisions of Hindu Adoption and Maintenance Act in Family Court which is case No. 1 of 2003.
(xiv) 31-1-2005: The applicant herein filed reply to wife's application before Family Court where she had claimed recovery of arrears of maintenance ordered under section 125, Criminal Procedure Code. Applicant herein claimed in his reply giving details about payments made by him and claimed that he was not bound to pay amount since the amount in the proceedings under section 125 of Criminal Procedure Code, since he was already paying higher amount of maintenance in compliance with the order passed under section 24 of Hindu Marriage Act by the Competent Criminal Court.
(xv) Family Court rejected petitioner's objection by order dated 24-2-2005.
4. In this petition, the petitioner is challenging the order passed in Execution Case No. ER-176/2004 decided by Family Court on 24-2-2005.
5. Heard both Learned Advocates at length.
6. The crux of the objection is that the petitioner-husband is claiming that his liability to pay maintenance furtherance to order under section 24 of Hindu Marriage Act would comprehend a liability to pay maintenance under section 125 of Criminal Procedure Code, though order under section 125, Criminal Procedure Code is later in date.
7. It is seen that both the parties have preferred to withhold some information from the Court. The petitioner has pleaded that the wife has suppressed the information of the interim maintenance being received by her in the proceedings under section 125 of Criminal Procedure Code. At the same time, it is not clear as to what prevented the husband from placing on record the copy order of interim maintenance ordered in proceedings under section 125, Criminal Procedure Code by Family Court before Civil Judge, Senior Division, Chandrapur. The explanation that the husband applicant is offering is that he serves in a private job at Mumbai and he is facing the proceedings at Nagpur as well as Chandrapur.
8. In the judgment rejecting objection, the Principal Judge, Family Court has observed in para 5 of the judgment, the reasoning of the order is as follows:—
“5………………………………………… It is true that the order of interim maintenance under section 24 of Hindu Marriage Act is passed earlier to the order under section 125 of Criminal Procedure Code. However, both the parties has ignored the fact that the order of maintenance in this case was passed by the consent of both the parties. It is clear from the order dt. 31-7-2004 that the said order came to be passed on the basis of joint pursis of the parties wherein the non-applicant has agreed to pay maintenance @ Rs. 1500/- p.m The non-applicant was aware about the order of the maintenance pendente lite passed on 30-6-2003. In my opinion, the non-applicant has filed joint Pursis agreeing for the maintenance @ Rs. 1500/- per month with the full knowledge of previous order of maintenance pendente-lite.”
9. The petitioner is, claiming right and entitlement to adjustment of the liability of the amount both under section 125 of Criminal Procedure Code in the Criminal proceedings and under Civil Liability relying upon two reported Judgments (1) AIR 1999 SC 536, Sudeep Chaudhary v. Radha Chaudhary and (2) 2001 (Supp.) BCR 739, Sanjay Chopra v. Shyam Chopra.
10. In both these Judgments, Lordships of Supreme Court have held that when the liability to pay maintenance under section 24 of Hindu Marriage Act exists, the amount of maintenance awarded under section 125 of Criminal Procedure Code is required to be adjusted.
11. The plea raised by the petitioner is opposed by the wife on various grounds inter alia.
(a) the husband applicant is estopped from claiming adjustment in liability under order under section 24, as he had complied with the order under section 125, Criminal Procedure Code, without demur.
(b) That the liability under section 125 of Criminal Procedure Code was bound to be answered without any fetters as it was independent of other orders.
(c) That amongst two Judgments relied upon by the petitioner, the judgment in case of Sanjay Chopra, 2001 (Suppl.) BCR 739 is a judgment of consent and would not operate as a precedent.
(d) The case of Sudeep Choudhari, AIR 1999 SC 536 will not govern the case at hand in present case the husband has suffered order under section 24 of Hindu Marriage Act first in order of events and has later in date agreed to pay Rs. 1500/- under section 125, Criminal Procedure Code.
12. Learned Advocate Shri Srivastava further placed reliance on two reported judgments of this Court.
(i) 2000 (2) Mh. L.J 1, Leena w/o Chandrakant @ Balasaheb Chavan v. Chandrakant @ Balasaheb Arjunrao Chavan, (ii) 2000 (3) Mh. L.J 512, Alka w/o Vardhaman Bamb v. Vardhaman @ Pushkaraj @ Narendra s/o Nemichand Bamb.
13. It is clear from the case of Leena w/o Chandrakant, 2000 (2) Mh. L.J Page 1 relied upon by Advocate Shri Shrivastava that the liability under section 125 of Criminal Procedure Code was already adjudicated and on the face of such liability, Court had granted further additional amount of maintenance under section 24. Thus this is a fact Judgment between the parties involved in said case and would govern the cases of like nature.
14. Second case relied upon by the respondent namely of Alka w/o Wardhaman Bamb, 2000 (3) Mh. L.J 512 does not in any manner apply to present case on facts or even on law.
15. Moreover, both the Judgments relied upon by the respondent which are discussed in foregoing sub-para do not refer to and discuss as to what shall be the effect of Judgment of Hon'ble Supreme Court in case of Sudeep Choudhary v. Radha Choudhary, AIR 1999 SC 536.
16. Upon examination of submissions of both the parties and upon careful consideration of the precedents what reveals is as follows:
17. The law as laid down by the Supreme Court in AIR 1999 SC 536, Sudeep Chaudhary v. Radha Chaudhary is the binding precedent. In the latter Judgment of Supreme Court though the Lordship of Supreme Court proceeded to record statement of the petitioner not being disputed by the opponent, ultimately is that Judgment what is ruled by the Lordships of Hon'ble Supreme Court, is in keeping with the earlier reported precedent, in Sudeep Chaudhary's case. Hon'ble Supreme Court has ruled in no ambiguous terms in AIR 1999 SC 536 as follows:
“6……………………………………. We are of the view that the High Court was in error. The amount awarded under section 125 of the Criminal Procedure Code for maintenance was adjustable against the amount awarded in the matrimonial proceedings and was not to be given over and above the same. In the absence of the wife, we are, however, not inclined to go into any detailed discussion of the law.
7……………………………………… At the same time, we feel that the claims of the husband and the wife are to be balanced. We, therefore, direct that the husband shall pay to the wife towards maintenance (which now comprehends both the amount awarded under section 125 of the Criminal Procedure Code and the amount awarded in the matrimonial proceedings) the sum of Rs. 1,000/- p.m commencing from 3rd July, 1990. The arrears, if any, shall be paid within 8 weeks.”
18. Now coming back to the facts of the case on hand it is seen that may be as is permissible in law, the wife was claiming maintenance before three different fora. It is also seen that parties are playing the game of hide and seek by each amongst them withholding some facts from the Courts. It is impossible to adjudicate as to who is fair or otherwise to the Court. Court is, therefore, left to decide upon the controversy between the parties as is disclosed from record.
19. All that emerges is that until interim order under section 125 of Criminal Procedure Code was in operation the petitioner has paid the amount by depositing it in Family Court. Thereafter, when constrained he has deposited the arrears in the matrimonial proceedings initiated by him at Chandrapur. In the proceedings under section 125(3) Criminal Procedure Code the husband has claimed adjustment of said dues, paid by him in Civil Court.
20. The Family Court examined the aspect and found that consent for liability of Rs. 1500/- was given knowing fully well about the existing liability. The question is whether the order under section 24 of Hindu Marriage Act was passed while taking into consideration the existing liability i.e the fact that the husband was under obligation to pay interim maintenance under section 125, Criminal Procedure Code. Answer to this question is in negative namely that the Civil Judge Senior Division had no occasion advert to the interim order passed by the Family Court directing payment of Rs. 1500/- per month. It can thus be concluded that award of Rs. 2000/- by Civil Court under section 24 of Hindu Marriage Act was not in addition to Rs. 1500/- awarded to wife under section 125, Criminal Procedure Code by way of interim arrangements.
21. Therefore, what shall govern the situation is the law as laid down by the Supreme Court in Sudeep Chaudhary's case - AIR 1999 SC 536.
22. In the result, the present petition calls for interference. The order passed by the Family Court deserves to be reversed, as the objection raised by the husband was liable to be accepted. In the result, petition is allowed.
23. Order passed by the Principal Judge, Family Court in case No. E.R No. 176/2004 is hereby set aside. It is clarified that the respondent wife shall not be entitled to claim execution order under section 125 of Criminal Procedure Code until she receives or continues to receive the amount of maintenance under section 24 of Hindu Marriage Act.
24. Learned Advocate for the petitioner prays for stay of this order for a period of eight weeks for enabling him to approach the Apex Court.
25. Learned Advocate for the petitioner has made a solemn statement that until the order under section 24 of Hindu Marriage Act is in force, the husband shall without failure continue to pay/deposit the amount of Rs. 2000/- per month regularly. Request for stay cannot be granted, since it would mean permitting the execution proceedings to proceed when the impugned order is set liable, and it shall generate anomalous situation. Moreover, now there is a solemn assurance to pay maintenance as ordered in the matrimonial proceedings which protects the wife sufficiently. In the result the prayer for stay of this Judgment is hereby declined. Certified copy is expedited.
Petition allowed.