Naresh Kumar Rai v. Mamta Rai

1. The petitioner seeks quashment of ex-parte order of maintenance passed by J.M.F.C., Bhopal, on 11-1-2002, in respondent's application moved under Section 125 of the Code of Criminal Procedure, hereinafter referred to as Code, which stood registered as R.T. No. 829/2000.

2. According to the petitioner, he was married to non-applicant No. 1 on 6-5-90, but this marriage tie stood annulled by a judgment and decree dated 18-8-99, passed by Tenth Addl. District Judge, Bhopal, in petitioner's Civil Suit No. 69-A/98, filed under Section 13(1-A) and (1-B) of the Hindu Marriage Act, 1955, which shall hereinafter referred to as Act. Thereafter, non-applicant No. 1 filed a petition under Section 25 of the Act, against this petitioner, seeking the relief of permanent alimony, which stood registered as M.J.C. No. 96/99, and disposed of in his favour on 31-3-2001, by Fourth Addl. District Judge, Bhopal. The learned Fourth Addl. District Judge, Bhopal, ordered the petitioner to pay an amount of Rs. 2,000/- per month to non-applicant by way of alimony. This petitioner challenged the aforesaid order in First Appeal No. 221/2001, wherein, as interim relief, this Court reduced the amount of alimony from Rs. 2000/- p.m. to Rs. 1000/- p.m., by order dated 19-7-2001 and this First appeal is still pending for disposal.

3. After the judgment and decree in Civil Suit No. 69/98, and during the pendency of First Appeal No. 221/2001, the non-applicant instituted proceedings under section 125 of the code, against this petitioner which were registered as R.T. No. 829/2000, and in these proceedings, by an exparte order dated 11-1-2002, the learned J.M.F.C. ordered the petitioner to pay a total amount of Rs. 1,800/- p.m., to both the non-applicants.

4. It is submitted on behalf of the petitioner that on account of order of permanent alimony, under Section 25 of the Hindu Marriage Act, as ordered in M.J.C. No. 96/99, on 31-3-2001, the exparte maintenance order dated 11-1-2002, passed in R.T. No. 829/2000, is liable to be quashed, because respondent No. 1 cannot claim maintenance under two different Acts.

5. But it is found explained in Hansa Ben v. Ramesh Kumar, reported in 1992 Cr.LJ 3688, that the nature of proceedings under Hindu Marriage Act, and that of maintenance proceedings under Code of Criminal Procedure, are different and hence a wife can pursue both the remedies simultaneously. It is also found explained that the amount of maintenance under section 125 of the cr.pc, cannot be set of against the alimony awarded under a different proceedings and order of maintenance under section 125 of the code, can only be modified, altered or set aside under Section 125 (4) and (5) and/or under Section 127 of the Code. Their Lordships of the Supreme Court also while affirming the view taken in AIR 1932 Lahore, arc found to have dictated in Bhupinder Singh v. Daljit Kaur ., reported in AIR 1979 SC page 442, that-

"6. A contrary position has found favour with the Lahore High Court reported in AIR 1932 Lah 115. The facts of that case have close similarity to the present one and the head-note brings out the ratio with sufficient clarity. It reads:--

Shadi Lal, C.J., observed :--

"Now, in the present case the compromise, as pointed out above, was made out of Court and no order under Section 488, Criminal Procedure Code was made in pursuance of that compromise. Indeed, the order of the Magistrate allowing maintenance at the rate of Rs. 10 per mensem was neither rescinded nor modified, and no ground has been shown why that order should not be enforced. If the husband places his reliance upon the terms of the compromise, he may have recourse to such remedy in a Civil Court as may be open to him. The Criminal Court cannot however take cognizance of the compromise and refuse to enforce the order made by it."

This reasoning of the learned Chief Justice appeals to us/'

"7. We are concerned with a Code which is complete on the topic and any defence against an order passed under Section 125, Cr.PC, must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in term of the provisions of the Code itself. If the husband has a case under Section 125 (4) and (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a Higher 'Court or is varied or vacated in terms of Section 125 (4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence."

6. Then, it is noted on photo-copy of exparte order dated 11-1-2002, passed in R.T. No. 829/2000, that maintenance application under section 125 of the code, was filed on 24-11-99, when the order of permanent alimony dated 31-3-2001, passed in M.J.C. No. 96/99, was not in existence and thus non-applicant No. 1 is found to have been persuading both these proceedings simultaneously in the present case also. It is further noteworthy that the aforesaid order of permanent alimony dated 31-3-2001, is assailed by the petitioner in F.A. No. 221/2001, and as such, it has not become final.

7. Since a maintenance order passed under section 125 of the code, may be modified, altered or set aside under the provisions of sub-section (4) or (5) of Section 125 or Section 127 of the Code only, and not merely on the basis of grant of alimony under the Hindu Marriage Act, this petition does not merit which is accordingly disallowed and rejected at the stage of motion hearing.