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Madhya Pradesh High Court · body

2017 DIGILAW 385 (MP)

Anil Yadav v. Seema Yadav

2017-03-21

G.S.AHLUWALIA

body2017
ORDER 1. This petition under section 482 of CrPC has been filed against the order dated 16.5.2011 passed by Ist Additional Sessions Judge, Vidisha in Criminal Revision No.19/2011 affirming the order dated 13.1.2011 passed by JMFC, Vidisha in Criminal Case No.20/2011. 2. The necessary facts for the disposal of the present application in short are that an application under section 125 of CrPC was filed by the respondents before the Court of JMFC, Vidisha for grant of maintenance on the allegations that the respondent No.1 is the legally wedded wife of the applicant whereas the respondent No.2 is the daughter of the applicant and they have no source of livelihood. It was alleged in the application that the respondent No.1 was married to the applicant on 21.2.2002 as per Hindu rites and rituals. The entire marriage expenses were borne by her maternal uncles as the father of the respondent No.1 was not in a position to bear the marriage expenses. The respondent No.2 was born about 1½ year after the marriage and the delivery expenses were borne by the brother of the respondent No.1. After marriage, the applicant and her mother started treating her with cruelty. They were not allowing the respondent No.1 to even go to the kitchen. A false allegation of playing witchcraft was also leveled against her. The applicant also used to beat her without any reason. On 14.2.2006, the applicant left the respondent No.1 in the house of her maternal uncle and where she is residing alongwith her minor daughter with great difficulties. She has no source of income and is unable to maintain herself whereas the applicant has 5.134 hectares of land and is earning an amount of Rupees two lacs per year by way of profit. He is also earning Rs.5,000/- per month from other business. Accordingly, it was pleaded that the applicant is earning Rupees two lacs sixty thousand per annum. 3. The application was opposed by the applicant and he denied the allegations. He also denied that his yearly income is Two lacs sixty thousand. It was further pleaded that the respondent No.1 used to go to the house of her maternal uncle very frequently and without informing anybody in her matrimonial house. She also believes in playing witchcraft. 3. The application was opposed by the applicant and he denied the allegations. He also denied that his yearly income is Two lacs sixty thousand. It was further pleaded that the respondent No.1 used to go to the house of her maternal uncle very frequently and without informing anybody in her matrimonial house. She also believes in playing witchcraft. A decree under section 9 of the Hindu Marriage Act was also passed against her but she did not join the company of the applicant. In fact, it is the respondent No.1 who has deserted the applicant and, accordingly, she is not entitled for maintenance. 4. The trial Court, after recording the evidence of the parties, allowed the application filed under section 125 of CrPC and awarded a monthly maintenance of Rs.4,000/- to the respondent No.1 and Rs.1,000/- to respondent No.2. Being aggrieved by the order order dated 13.11.2011, passed by JMFC, Vidisha, the applicant filed a revision which too has suffered dismissal by order dated 16.5.2011. 5. It is contended by the counsel for the applicant that the trial Court had awarded the maintenance from the date of the order but without their being any revision by the respondents, the revisional Court has modified the order of the trial Court and has directed that the maintenance amount shall be payable from the date of the application. Furthermore, the effect of decree for restitution of conjugal rights as well as the income of the applicant has not been assessed properly. It is further submitted by the counsel for the applicant that during the pendency of the revision, a petition for divorce filed by the applicant has been allowed by the trial Court by judgment dated 27.10.2015 and the marital ties between the applicant and the respondent No.1 have been broken by holding that the behavior of the respondent No.2 was cruel towards the applicant. 6. Per contra, it is submitted by the counsel for the respondents that so far as the respondent No.2 is concerned, the submissions made by the applicant have no force as she cannot be held responsible if her parents are residing separately. 6. Per contra, it is submitted by the counsel for the respondents that so far as the respondent No.2 is concerned, the submissions made by the applicant have no force as she cannot be held responsible if her parents are residing separately. So far as the decree of divorce is concerned, it is submitted that this is a subsequent event which had taken place during the pendency of this petition and, therefore, the same cannot be taken into consideration and if the applicant wants to take advantage of the same, then he has to file a petition under section 127 of CrPC before the Court of Magistrate for alteration of allowance. It is further submitted that under the facts and circumstances of the case, the application is misconceived and is liable to be dismissed. 7. Heard the learned counsel for the parties. 8. From the order of the trial Magistrate, it is clear that the Magistrate had awarded the maintenance amount from the date of the order. It was specifically mentioned in the paragraph 15 of the order dated 13.1.2011 passed by the Magistrate that the maintenance amount shall be payable from the date of the order. However, it appears that while dismissing the criminal revision, the revisional Court has directed that the maintenance amount shall be payable from the date of the application i.e., 20.9.2007. It is clear that the respondents were not aggrieved by the order of the Magistrate by which the maintenance was directed to be paid from date of the order and not from the date of the application. For directing that the maintenance amount shall be payable, the Court has to assign specific reasons. It appears that without there being any counter revision by the respondents seeking the payment of maintenance amount from the date of the application i.e., 20.9.2007 and without assigning any reasons for awarding maintenance from the date of the order, the revisional Court should not have modified the order of the Magistrate and, therefore, direction given in paragraph 22 of the order dated 26.5.2011 passed by revisional Court is liable to be interfered with. 9. Accordingly, the observation made by the revisional Court that the maintenance amount shall be payable from 20.9.2007, is set aside and the direction given by the Magistrate for payment of maintenance amount from the date of the order is restored. 10. 9. Accordingly, the observation made by the revisional Court that the maintenance amount shall be payable from 20.9.2007, is set aside and the direction given by the Magistrate for payment of maintenance amount from the date of the order is restored. 10. So far as the passing of the judgment of divorce is concerned, it is clear that the said judgment has been passed on 27.10.2015 i.e., during the pendency of this petition. 11. Section 127 of CrPC reads as under :- 127. Alteration in allowance.- [(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.] (2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that - (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where, such sum was paid before such order, from the date on Which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order. 12. Under section 127(2) of CrPC, the Magistrate, in consequence of any decision of a competent civil Court, may cancel or vary the order passed under section 125 of CrPC. 13. What would be the effect of the judgment of divorce is yet to be considered by the Magistrate. 14. So far as the contention of the applicant that even after passing of a decree under section 9 of the Hindu Marriage Act for restitution of conjugal rights that the respondent No.1 did not join his company is concerned, suffice it to say that there is nothing on record to show that the applicant had also ever made any efforts to bring the respondent No.1 back to her matrimonial house. Even if a decree of divorce under section 9 of Hindu Marriage Act has been passed against the respondent No.1, then still the applicant cannot be absolved from his liability to make efforts to bring her back to her matrimonial house. There is nothing on record to show that the applicant ever made any attempt for execution of decree passed under section 9 of the Hindu Marriage Act. 15. The counsel for the applicant fairly conceeded that an application under Order 21 rule 32 of CPC could have been filed by him but even that step was not taken by the applicant. Thus, it is clear that after obtaining decree under section 9 of Hindu Marriage Act, the applicant did not take any steps to bring the respondent No.1 back to her matrimonial house. It cannot be said that merely because a decree under section 9 of Hindu Marriage Act has been passed, therefore, only conclusion which can be drawn against the respondent No.1 is that she is residing separately without any reasonable reason. 16. It cannot be said that merely because a decree under section 9 of Hindu Marriage Act has been passed, therefore, only conclusion which can be drawn against the respondent No.1 is that she is residing separately without any reasonable reason. 16. Under these circumstances, this Court is of the considered opinion that merely because a decree under section 9 of Hindu Marriage Act has been passed against the respondent No.1 and if she did not join the company of the applicant, therefore, that by itself would not be sufficient to disentitle her to receive maintenance amount. 17. So far as the income of the applicant is concerned, two Courts below have given a concurrent findings of facts which do not require any reconsideration by this Court in exercise of power under section 397/401 of CrPC. 18. Thus, this petition is partially allowed. 19. The direction given by the revisional Court for payment of maintenance amount from the date of application is hereby set aside and the direction given by the trial Court for payment of maintenance amount from the date of the order is hereby restored. 20. As the decree for divorce has been passed during the pendency of this application, therefore, the applicant shall be at liberty to file an application under section 127 of CrPC for alteration of allowances bringing in notice to the Magistrate about the judgment of divorce passed by a Court of competent jurisdiction. 21. With the aforesaid liberty, the application is partially allowed.