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2012 DIGILAW 1413 (RAJ)

Manbhar v. State of Rajasthan

2012-05-30

SANDEEP MEHTA

body2012
ORDER : Sandeep Mehta, J. Heard learned counsel for the parties. 2. The present misc. petition has been filed by the petitioners, the wife and daughter respectively of the respondent no.2, against the order dated 17.10.2005.passed by the learned Additional Sessions Judge No.2, Bhilwara Camp Shahpura, District Bhilwara whereby the order dated 25.7.2003 passed by the learned Judicial Magistrate, Jahajpur, District Bhilwara, awarding maintenance to the petitioner no.1 Smt. Manbhar was set aside. 3. Succinctly stated the facts necessary for the disposal of the instant misc. petition are that Smt. Manbhar was married to Ramdev and Sunita was born from the wedlock. An application under Section 125 Cr.P.C. was preferred by the petitioners Smt. Manbhar and Sunita in the Court of Judicial Magistrate, Jahajpur claiming maintenance at the rate of Rs. 1,000/- per month each. The specific pleading in the application was that the respondent no.2 Ramdev was a Government teacher and was earning salary at a rate of Rs. 11,000/- per month. 4. The respondent no.2 contested the application filed under Section 125 Cr.P.C. and contended in the reply that there was no valid marriage between him and Smt. Manbhar and, therefore, she was not entitled to receive maintenance from him. It was also mentioned in the reply that he was married to one Rampyari from whom four children were born, who are also being maintained by him. It was also stated by the respondent no.2 in the reply that he was working as a Teacher Grade-III and was earning a salary of Rs. 7,300/- per month. A specific reference in the reply was made to an alleged agreement arrived at between the parties in relation to an earlier application for maintenance wherein Smt. Manbhar agreed to withdraw the application under Section 125 Cr.P.C. after receiving a sum of Rs. 19,000/-. Thus, it was claimed that once she agreed to receive a lumpsum amount towards her lifeling maintenance, thereafter she was not entitled to receive any further maintenance from the respondent no.2. 5. The application filed by the petitioners was accepted by the learned Judicial Magistrate and it was directed that the petitioners would be entitled to receive maintenance amount of Rs. 500/- per month from the respondent no.2 from the date of filing of the application. The petitioner no.2 was directed to be paid maintenance till the date of attaining majority. 5. The application filed by the petitioners was accepted by the learned Judicial Magistrate and it was directed that the petitioners would be entitled to receive maintenance amount of Rs. 500/- per month from the respondent no.2 from the date of filing of the application. The petitioner no.2 was directed to be paid maintenance till the date of attaining majority. The order granting maintenance was assailed by the respondent no.2 by filing a revision and the revisional court has quashed the order directing payment of maintenance to the petitioner no.1 Smt. Manbhar whilst upholding the order directing payment of maintenance to the petitioner no.2 Sunita. 6. The petitioners have approached this Court challenging the revisional Court's order to the extent the claim of the petitioner no.1 has been rejected. 7. Learned counsel for the petitioners submits that the respondent no.2 has falsely denied his marriage with the petitioner no.1, which fact itself is sufficient to entitle her to receive maintenance. It is submitted that in the earlier proceedings under Section 125 Cr.P.C., the respondent no.2 admitted that the petitioner no.1 is his wife and made a payment of Rs. 19,000/- as one time alimony but the said amount of Rs. 19,000/- was not sufficient to sustain the two petitioners. Therefore, a fresh application was filed which was rightly allowed by the learned Magistrate. It is submitted that merely because earlier an agreement was entered into and the petitioner no.1 received a gross sum of Rs. 19,000/- towards maintenance in the year 1996, that by itself would not disentitle her to claim maintenance in future. It is, therefore, submitted that the order of the learned Magistrate directing payment of maintenance to the petitioner no.1 at the rate of Rs. 500/- per month has wrongly been reversed by the learned revisional court. He also submits that the amount of maintenance granted by the magistrate was a paltry sum of Rs. 500/- per month which is thoroughly inadequate and deserves to be enhanced as well. 8. Counsel for the respondent no.2 on the other hand contended that the petitioner no.1 received one time maintenance in the earlier proceedings under Section 125 Cr.P.C. and as such any further claim in this regard by way of a fresh application could not have been entertained by the learned Magistrate. 8. Counsel for the respondent no.2 on the other hand contended that the petitioner no.1 received one time maintenance in the earlier proceedings under Section 125 Cr.P.C. and as such any further claim in this regard by way of a fresh application could not have been entertained by the learned Magistrate. It is, therefore, submitted that the revisional court has rightly reversed the order granting maintenance to the extent of the petitioner no.1. 9. After having considered the arguments advanced at SB Criminal Misc. Petition No. 1700/2009 Smt. Manbhar and anr. v. State of Rajasthan and anr the bar and upon perusing the record of the case as well as the order impugned, this Court is of the opinion that even a final order of maintenance awarded under Section 125.Cr.P.C. is not the last word. The Legislature itself has provided for alteration in the amount of maintenance by way of the provision under Section 127 Cr.P.C. which can be preferred by either of the parties. Thus, merely because the petitioner no.1 in the earlier application filed under Section 125 Cr.P.C. made an agreement and withdrew her application after receiving an amount of Rs. 19,000/- as one time alimony, that fact by itself could not be considered to be an embargo against her from filing a fresh application for maintenance. Fresh facts were demonstrated in the subsequent application filed in the court of Judicial Magistrate and it was specifically pleaded that the amount of Rs. 19,000/- received in the earlier proceedings could not sustain two ladies because the same had to be spent on the education of the petitioner no.2 and towards the medical expenses incurred by them. 10. Otherwise also, it does not appeal to conscience that a paltry sum of Rs. 19,000/- could be considered sufficient to maintain two ladies over a long span of time. 11. Another important fact which entitled the petitioners to claim maintenance despite the settlement of the earlier claim is that when the earlier application was filed and decided, there was a cap of Rs. 500/- per month in Section 125 Cr.P.C. for which a claim could be made. Thereafter, the State of Rajasthan has amended the provision and the limit of Rs. 500/- has now been lifted from the year 2001. Thus otherwise also, a fresh application could very well have been brought after the amendment. 500/- per month in Section 125 Cr.P.C. for which a claim could be made. Thereafter, the State of Rajasthan has amended the provision and the limit of Rs. 500/- has now been lifted from the year 2001. Thus otherwise also, a fresh application could very well have been brought after the amendment. The court below, therefore, rightly entertained the same. Apparently while agreeing to withdraw the earlier proceedings, the petitioner no.1, who is admittedly an illiterate lady, was not aware of the consequences of such an agreement. As has been stated above, even a final order of maintenance, if the circumstances so require, can be altered by virtue of Section 127 Cr.P.C. Therefore, in the opinion of this Court, the learned Magistrate did not commit any error in granting maintenance to the petitioners. The order of the revisional court reversing the same is totally illegal and perverse. 12. Resultantly, the present misc. petition is allowed and the order dated 17.10.2005 passed by the learned Additional Sessions Judge No.2, Bhilwara Camp Shahpura, District Bhilwara qua the petitioner no.1 is hereby quashed and the order dated 25.7.2003 passed by the learned Judicial Magistrate, Jahajpur, District Bhilwara is restored. 13. The learned trial court is directed to enforce the order of maintenance. The respondent no.2 is given an opportunity of depositing the amount of arrears of maintenance accrued till date in four equal installments. If the respondent no.2 does not deposit the installments of maintenance accrued till date within a period of five months from the date of this order and if the payment of the monthly maintenance amount to the petitioners is not made by the respondent no.2 by tenth day of each month, then the learned trial court shall forthwith issue a warrant for recovery of the maintenance amount and thereafter have the amount disbursed to the petitioners. However, as regards the prayer for enhancement, the petitioner no.1 is given a liberty to move the learned Magistrate by way of an application under Section 127 Criminal Procedure Code. Record of the trial court be sent back forthwith.