ORDER
(Passed on 02/09/2014)
1. This revision is directed against the order dated 30/11/2007 passed by the Family Court, Raigarh in M.J.C No. 37/2006.
2. The present applicants were granted maintenance under Section 125 of the Criminal Procedure Code, 1973 (‘the Cr.P.C for brevity) by order dated 17/01/2006 and it has been held that each of the applicants are entitled for monthly maintenance of Rs. 1,000/- from the non-applicant.
3. The applicants levied execution for arrears of maintenance amount Rs. 40,000/-. In the said execution, the non-applicant filed an application (I.A No. 1) stating that a decree for restitution of conjugal rights has been passed in his favour directing the applicant No. 1 to live with him. Since she has failed to execute that decree, therefore, the non-applicant is not liable to make payment of the maintenance amount after the date of the impugned order i.e 30/11/2007.
4. The Family Court, by its impugned order allowed the application and held that since the applicant No. 1 has failed to comply the decree for restitution of conjugal rights as she is not residing with non-applicant and her appeal stood dismissed by this Court, therefore, the applicant No. 1 is not entitled to recover the amount of maintenance as per order dated 17/01/2006.
5. Appearing for the applicants Mr. Manoj Kumar Jaiswal, learned counsel would submit that the order passed by the Family Court is unsustainable in law as merely on passing of decree for restitution of conjugal rights, the order of maintenance granted under Section 125 of the Cr.P.C cannot be annulled.
6. No one appeared on behalf of the non-applicant to oppose the revision, though served.
7. I have heard learned counsel appearing for the applicants and perused the record with utmost circumspection.
8. From careful and close perusal of the record, it would appear that the decree for restitution of conjugal rights was passed by the Family Court in favour of the non-applicant and against the applicant No. 1 on 19/02/2004 in Civil Suit No. 3-A/2003 (Rakesh Kumar Jaiswal v. Smt. Santoshi Jaiswal), against which, First Appeal No. 91/2004 was preferred by applicant No. 1 (Santoshi Jaiswal v. Rakesh Kumar Jaiswal), which was dismissed for non-prosecution on 06/04/2005.
9. The impugned order passed by the Family Court, deserves to be set-aside for the following two reasons:-
9.1 Firstly that the application for maintenance was filed and finally decided on 17/01/2006, in which, the non-applicant/husband has clearly taken a plea that the applicant No. 1 has not complied the decree for restitution of conjugal rights and therefore, she is not entitled for maintenance. The said Family Court considered the said plea and ultimately over-ruled the said plea and granted maintenance by order dated 17/01/2006. This order of maintenance has not shown by either side that it has been set-aside by the higher Court or it has been annulled in proceeding under Section 127 of the Cr.P.C by the Family Court. Thus the order granting maintenance has attained finality and it cannot be ground for attack by non-applicant/husband to refuse maintenance already granted after considering the non-compliance of said decree.
9.2 Secondly that there is no such bar under Section 125 of the Cr.P.C to grant of maintenance to a wife against whom decree for conjugal rights have been passed and there is no express provision in the Cr.P.C and in absence of any express provision in the Cr.P.C, it is appropriate to conclude the provision contained in Chapter-IX empowers the Magistrate to direct the person against whom an application is made under Section 125 of the Cr.P.C According to [IX 74]:
The Manu-Smriti:-
“A husband, who had to go abroad for business, may depart after securing a maintenance for his wife, even though virtuous may go astray distressed by want of subsistence,” … ……
[Thus, Manu-Smriti enjoins a Hindu Husband to provide for maintenance of his wife, even while going abroad.]
10. Thus, taking a clue from the ancient Manusmriti and further taking into consideration the original order of the Family Court was granted by said Court after considering the effect of non-compliance of decree of conjugal rights by the present applicant No. 1, and that has become final as such non-applicant is not entitled to challenge the order granting maintenance in collateral proceeding (execution), this Court of considered opinion that the obligation of the non-applicant/husband to maintain his wife does not cease with the obtaining of decree for restitution of conjugal rights in his favour. The Family Court is absolutely unjustified in annulling the order of maintenance in execution proceeding merely on the basis of said decree and as such order passed by Family Court is clearly unsustainable in law and is hereby set-aside. The non-applicant is directed to deposit the entire amount from the date of order till this date within a period of two months from the date of passing of this order.
11. The revision is allowed to the extent indicated herein-above. No order as to cost(s).
HEAD-NOTE
An order of maintenance granted under Section 125(1) of the Cr.P.C to a wife cannot be challenged and set-aside in execution proceeding.
(By Order)
(Yogesh Tiwari) Private Secretary