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2014 DIGILAW 384 (HP)

Bagga v. Karmi Devi @ Karmi

2014-04-11

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. This appeal is admitted on following substantial question oflaw: - Whether the Courts below have wrongly decided the question of law regarding initiation of proceedings for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act by a person, who has already availed the relief of maintenance under Section 125 of Cr.P.C.? With the consent of learned counsel for the parties, the case was taken up for final hearing. 2. A short question arises for determination in the present appeal. The respondent was awarded a sum of ‘400/- per month in the proceedings under Section 125 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) while in the proceedings arising out of the Hindu Adoptions and Maintenance Act, 1956, she was awarded a sum of `1,500/- per month by the learned trial Court. The learned lower appellate Court affirmed the said findings by making following observations in paragraph-19 of the judgment. “19. Since the income of the defendant is proved to be `12,000/- per month, the maintenance allowance of `400/- per month which has been awarded to the plaintiff in a petition under Section 125 of the Code of Criminal Procedure can be safely held to be disproportionate to the income of the defendant. The learned trial court has awarded maintenance at the rate of `1500/- per month to the plaintiff from the date of filing of the suit and since it is established that the defendant is having sufficient means and properties and thus awarding of maintenance at the rate of `1500/- per month to the plaintiff in the present suit by the learned trial court cannot be held to be beyond his means and same also cannot be held to be unreasonable.” 3.Now the question arises as to whether the respondent would be entitled to claim by way of maintenance both the amounts i.e. ‘400/- per month awarded under Section 125 Cr.P.C. and ‘1500/- per month in the proceedings initiated under Section 18 of the Hindu Adoptions and Maintenance Act. 4.Shri R.K. Gautam, Senior Advocate, assisted by Mr.Gaurav Gautam, Advocate, has strenuously argued that the amount awarded under Section 125 Cr.P.C. for maintenance has to be adjusted against the amount awarded in the proceedings initiated under Section 18 of the Hindu Adoptions and Maintenance Act and was not required to be given over and above the same. 4.Shri R.K. Gautam, Senior Advocate, assisted by Mr.Gaurav Gautam, Advocate, has strenuously argued that the amount awarded under Section 125 Cr.P.C. for maintenance has to be adjusted against the amount awarded in the proceedings initiated under Section 18 of the Hindu Adoptions and Maintenance Act and was not required to be given over and above the same. It is the precise question on which the appeal has been admitted today. 5. The question is no longer res integra in view of the judgment of the Hon’ble Supreme Court, as has been relied upon by learned counsel for the appellant. In Sudeep Chaudhary versus Radha Chaudhary AIR 1999 SC 536 wherein the Hon’ble Supreme Court has held as under:- “6. We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. 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.” 6. In Sanjay Chopra versus Shyama Chopra 2001 (1) HLR 481, the Hon’ble Supreme Court held:- “The appellant is the husband and the respondent is the wife. The husband was directed to pay, under Section 125 of the Code of Criminal Procedure, maintenance to the wife and the child of the marriage in the sums of Rs.300/- and Rs.400/- respectively. Thereafter, by the order under challenge, the High Court directed the husband to pay maintenance, under Section 24 of the Hindu Marriage Act, in the sums of Rs. 1,000/- and Rs. 800/- respectively. It is the submission on behalf of the husband that the amounts of maintenance granted under Section 125, as aforestated, should be adjusted against the maintenance granted under Section 24 by the impugned order. This is, fairly, not disputed. 2. Accordingly, the order of the High Court is modified to the aforesaid extent. The effect will be that the husband will now only be liable to pay maintenance to the wife and the child in the sums of Rs. 1,000/- and Rs.800/- respectively.” 7.nfact, a co-ordinate Bench of this Court ( Hon’ble Justice Kuldip Singh, J., as his Lordship then was) has placed reliance on the aforesaid judgments in case Vivek Sharma versus Smt. Rajni Bala 2012 (2) Shim. 1,000/- and Rs.800/- respectively.” 7.nfact, a co-ordinate Bench of this Court ( Hon’ble Justice Kuldip Singh, J., as his Lordship then was) has placed reliance on the aforesaid judgments in case Vivek Sharma versus Smt. Rajni Bala 2012 (2) Shim. LC 1111, and held as follows:- “7. In Sudeep Chaudhary (supra) the Supreme Court has observed as follows:- “We are of the view that the High Court was in error. The amount awarded under Section 125 of the Cr.P.C. 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”. In Sanjay Chopra (supra) the Supreme Court has observed as follows:- “The appellant is the husband and the respondent is the wife. The husband was directed to pay, under Section 125 of the Code of Criminal Procedure, maintenance to the wife and the child of the marriage in the sums of Rs.300/- and Rs.400/- respectively. Thereafter, by the order under challenge, the High Court directed the husband to pay maintenance, under Section 24 of the Hindu Marriage Act, in the sums of Rs. 1,000/- and Rs.800/- respectively. It is the submission on behalf of the husband that the amounts of maintenance granted under Section 125, as aforestated, should be adjusted against the maintenance granted under Section 24 by the impugned order. This is, fairly, not disputed. 2. Accordingly, the order of the High Court is modified to the aforesaid extent. The effect will be that the husband will now only be liable to pay maintenance to the wife and the child in the sums of Rs. 1,000/- and Rs. 800/- respectively”. 8. It is thus clear that the maintenance fixed in 125 Cr.P.C. and the amount fixed under Section 24 of the Act are to be taken into consideration while granting maintenance. In the present case, the District Judge, Kangra vide order dated 23.6.2010 has allowed maintenance at the rate of Rs.3,000/- per month and Rs. 1,200/- per month to each of the respondents. The Chief Judicial Magistrate in the order dated 30.9.2010 has noticed that the District Judge has already granted Rs.4,200/- to the respondents under Section 24 of the Act. In the present case, the District Judge, Kangra vide order dated 23.6.2010 has allowed maintenance at the rate of Rs.3,000/- per month and Rs. 1,200/- per month to each of the respondents. The Chief Judicial Magistrate in the order dated 30.9.2010 has noticed that the District Judge has already granted Rs.4,200/- to the respondents under Section 24 of the Act. The Chief Judicial Magistrate has observed that the amount of proceeding under Section 125 Cr.P.C is adjustable against the amount awarded in matrimonial proceedings and not to be given over and above the same. The Chief Judicial Magistrate ultimately allowed the maintenance at the rate of Rs.1,000/- each respectively to the respondents from the date of filing of the petition i.e. 24.10.2009. The Chief Judicial Magistrate has adjusted Rs.4,200/- (Rs.3,000/- + Rs. 1,200/-) maintenance allowed by the District Judge. The learned Counsel for the parties have stated that the order dated 23.6.2010 has not been assailed by either party and it has become final. 9. The respondents challenged the order dated 30.9.2010 of the Chief Judicial Magistrate and the Sessions Judge on 29.7.2011 has increased the amount to Rs.2,500/- per month to each of the respondents from the date of filing of the revision petition. The Sessions Judge in the order dated 29.7.2011 has not noticed that the District Judge under Section 24 of the Act has allowed maintenance at the rate of Rs.4,200/- (Rs.3,000/- + Rs. 1,200/-) in favour of the respondents. In other words, the Sessions Judge has allowed the maintenance of Rs.2,500/- per month to each of the respondents over and above the amount allowed by the District Judge in the order dated 23.6.2010. This is not permissible. The parties are not entitled to maintenance under different provisions separately. The party is entitled to maintenance but while fixing amount, the amount of maintenance awarded in one proceeding is to be taken into consideration in the other proceeding. In the present case, the Sessions Judge has not taken into consideration the amount fixed by the District Judge on 23.6.2010. In these circumstances, order dated 29.7.2011 is not sustainable and it requires modification. 10. In the facts and circumstances, the respondents are entitled to maintenance as fixed by the Sessions Judge, Hamirpur on 29.7.2011 but it will include the amount fixed by the District Judge, Kangra at Dharamshala on 23.6.2010 in CMA No.742 of 2009. In these circumstances, order dated 29.7.2011 is not sustainable and it requires modification. 10. In the facts and circumstances, the respondents are entitled to maintenance as fixed by the Sessions Judge, Hamirpur on 29.7.2011 but it will include the amount fixed by the District Judge, Kangra at Dharamshala on 23.6.2010 in CMA No.742 of 2009. The order dated 29.7.2011 is modified to that extend only. The modified maintenance shall be paid by petitioner to respondents from 24.10.2009 the date of filing of the petition in the Court below.” 8. Shri Dinesh Bhanot, Advocate, learned counsel for the respondent, on the other hand, has sought to rely upon the judgment rendered by this Court in Dwarku Devi versus Gursahai 1997(1) Sim. L.C. 374, Kamlesh Kumari versus Aman Kishore Latest HLJ 2012 (HP) 626 and the judgment of the Hon’ble Apex Court in Inderjit Kaur versus Union of India and others (1990) 1 SCC 344 . I am afraid that none of the cases relied upon by learned counsel for the respondent deals with the fact situation as obtaining in the present case and moreover in these cases this question of law did not even arise for consideration. 9.Shri Dinesh Bhanot, learned counsel for the respondent has then canvassed that even this Court could suitably fix the maintenance. For this purpose, he relied upon Para-7 of the judgment in Sudeep Chaudhary’s case (supra) which reads as follows:- “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 Cr.P.C. 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.” 10.I am afraid that the aforesaid directions by the Hon’ble Supreme Court have been issued in order to meet the ends of justice in exercise of powers under Article 142 of the Constitution of India and same cannot be held to be the ratio of the judgment. The ratio of this judgment has already been extracted above and is contained in Para-6 of the judgment. The ratio of this judgment has already been extracted above and is contained in Para-6 of the judgment. 11.The Hon’ble Supreme Court in Ambica Quarry Works v. State of Gujarat and others (1987) 1 SCC 213 has held that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem (1901) AC 495, it has been held that the case is only an authority for what it actually decides, and not what logically follows from it. 12. Lord Halsbury in the case of Quinn (supra) has ruled thus:- “.....there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” (Emphasis supplied) 13.In Krishena Kumar v. Union of India and others (1990) 4 SCC 207 , the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker’s Trustees (1882) 7 App Cas 259 :46 LT 826 (HL) and Quinn (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows:- “The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre­existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre­existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol.26, para 573) “The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal’s duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.” (Emphasis added) 14.In State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275 , it has been stated by the Hon’ble Supreme Court thus:- “12. According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment.” 15.In Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697 , the Hon’ble Supreme Court has made the following observations:- “2..... The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment.” 16.The said authorities have been relied upon in Natural Resources Allocation, in Re, Special Reference No.1 of 2012 (2012) 10 SCC 1 . 17. Further, the judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda and another (2004) 3 SCC 75 , it has been stated that observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. The observations must be read in the context in which they appear to have been stated. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. 18. The Hon’ble Supreme Court in Som Mittal v. Government of Karnataka (2008) 3 SCC 574 observed that judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation.(See:Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited AIR 2014 SC 525 .) 19. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation.(See:Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited AIR 2014 SC 525 .) 19. Thus, taking into consideration the settled law, the respondent would nly be entitled to a maintenance of ‘1,500/- per month and the sum of ‘400/- awarded as maintenance under Section 125 of Cr.P.C. would be deemed to be included in this amount of ‘1,500/- per month. 20.Accordingly, the substantial question of law is answered in favour of the appellant and the judgments and decrees passed by the learned Courts below are modified accordingly. The parties are left to bear their own costs. The pending applications are also disposed of accordingly. 21.However, before parting, it may be observed that this judgment and decree will not come in the way of the respondent to lay claim for enhancement of the maintenance or a separate claim for maintenance incase the same is available to her in accordance with law. Costs easy.