Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 257 (MP)

Ashok Chand Kothari v. Alpna And Another

2020-02-17

J.P.GUPTA

body2020
JUDGMENT J P Gupta, J. - This petition under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner for setting aside the order dated 13.4.2017 passed in MJC No.65/15 by the Principal Judge, Family Court, Harda and the proceeding thereof, with regard to recovery of the maintenance amount payable by the petitioner to the respondents on the ground that after a common order passed by this court in criminal revision no. 1344/2008 and 1345/08 on 11.11.2010 and modified by this Court in M.Cr.C.No.1440/2011 by order dated 4.2.2011 the petitioner was only bound to pay interim maintenance Rs.5000/- per month for each of the respondents from 16-1-2008 till 30.11.2010; as in the aforesaid order there is no direction to pay further maintenance amount to the respondents and the order dated 7.7.2008 passed by the Session Judge in criminal revision no. 28/08, whereby the order dated 16.1.2008 passed by the JMFC in MJC No.204/05 was set-aside. Therefore, there is no order for payment of interim maintenance further and the application for recovery of maintenance amount is filed without any ground by the respondents. The amount which was recoverable in compliance to the or-der of this court dated 11.11.2010 has been paid even excess amount has been paid. Therefore, the proceeding with regard to recovery of the amount be quashed. 2. Learned counsel for the respondents has submitted that the petition is misconceived and filed in the series of the petitions filed before the Executing court to create confusion. While the matter is very plain as earlier learned JMFC concerned directed to pay interim maintenance amount Rs.10,000/- per month to the wife Alpna and Rs.5000/- per month to the son Anuj by order dated 16.1.2008 which was setaside by the Session Judge, Harda in criminal revision no. 28/08 by order dated 7.7.2008, against which, criminal revision no. 1344/08 and 1345/08 were filed before this High Court which were disposed of by order dated 11.11.2010 in the following terms :- "Applicant Smt. Alpna Jain has filed by a case u/s 125 of Cr.P.C. against respondent no. 1. Learned Magistrate vide order dated 16/01/08 granted Rs.10,000/- to Smt. Alpna Jain and Rs.5000/- to son Anuj Jain towards interim maintenance from respondent. 1. Learned Magistrate vide order dated 16/01/08 granted Rs.10,000/- to Smt. Alpna Jain and Rs.5000/- to son Anuj Jain towards interim maintenance from respondent. Thereafter, a revision was filed before Session Judge who quashed the order dated 16/01/08 and directed trial court to pass appropriate order after taking evidence on merits hence, these petitions have been filed on the ground that if order of interim maintenance is passed after taking evidence then the very purpose of interim maintenance will be defeated. Learned counsel for respondent Shri Dixit has stated at bar that they will deposit total Rs.10,000/- for each of the applicants (Smt. Alpna Jain and Anuj Jain) from 16/01/2008. He further submitted that a FDR of Rs.2,50,000/- is also submitted before JMFC. Counsel for respondent assured that within 30 days from today he will deposit the total amount of interim maintenance from 16/01/08 to 30/11/2010 at the rate of Rs.10,000/-." The aforesaid order has been modified by order of this Court dated 4.2.2011 in M.Cr.C.No.1440/2011 in the following terms :- "The applicant has filed this M.Cr.C. for modification of order dated 11.11.2010 passed by this Court in Cr.R. No.1344/2008 and Cr.R. No.1345/2008. Learned counsel for the applicant has submitted that due to typographical error in third para of first page of the order dated 11.11.2010 'each' has been typed after the amount of Rs.10,000/-, therefore, the same may be corrected. In view of the above, it is directed that in second line of para 3 of the order dated 11.11.2010 in pace of "total Rs.10,000/- for each of the applicants" it be read as "total Rs.10,000/- for the applicants". This order shall be treated as part of the order dated 11.11.2010. No modification is required regarding other prayer about depositing half amount. Accordingly, this M.Cr.C. No.1440/2011 is hereby disp0sed of." Accordingly, there is no ambiguity in the order and the petitioner is bound to pay interim maintenance till the disposal of the case and the case has been finally disposed of by the Magistrate by order dated 26.6.2013 directing to the petitioner to pay the maintenance amount from the date of the order. Therefore, till 25.6.2013 the petitioner is bound to pay interim maintenance amount in compliance to the order dated 11.11.2010 passed by this Court. Hence, the petition be dismissed by directing the petitioner to pay remaining amount of maintenance. 3. Therefore, till 25.6.2013 the petitioner is bound to pay interim maintenance amount in compliance to the order dated 11.11.2010 passed by this Court. Hence, the petition be dismissed by directing the petitioner to pay remaining amount of maintenance. 3. Having heard the contentions of learned counsel for the parties and on perusal of the record, in view of this court, learned Family court has not committed any error in passing the order dated 13.4.2017 that the interim maintenance amount is payable till disposal of the case in accordance to the order passed by this court in criminal revision no. 1344/08 and 1345/08 by common order dated 11.11.2010 and modified the order vide order dated 4.2.2011. The interpretation done by the petitioner on the basis of the order dated 7.7.2008 passed by the Session Judge in criminal revision no. 28/08 is not correct. All the orders of both the courts below have been merged by a common order of this Court dated 11.11.2010 and modified the order vide order dated 4.2.2011, whereby both the criminal revisions have been disposed of regarding interim maintenance in terms of the order. It appears from the record that the petitioner is playing hide and seek by raising groundless objection that in the order of this court dated 11.11.2010 there is no further order to pay interim maintenance which is wrong. Therefore, in this regard, learned Family court has rightly rejected the contention of the petitioner. 4. In this case it is clear that the petitioner is liable to pay interim maintenance from 16.1.2008 till 25.6.2013 and a sum of Rs. Rs.1,73,000/- has already been deposited by the petitioner and rest of the amount is due over the petitioner to be paid to the respondents as interim maintenance amount. But according to the provisions of Section 125 (3) of Cr.P.C. proviso, the respondents are entitled to file application for getting arrears of one year till the date of filing of the application and if the application is pending and further payable amount is not paid then there is no need to file afresh application and the amount till the disposal of the application be recovered on the basis of the previous petition as laid down by Hon'ble the Apex court in the case of Shanta @ Ushadevi and another vs. B. G. Shivananjappa, 2005 4 SCC 468 . 5. 5. The documents filed before this court do not make clear that on which date the application for recovery of the maintenance amount was filed and it also appears that several applications were filed for execution and the courts below are making interpretation and taking different and inconsistent view on their own and the proceeding remained continued in various directions. 6. Hence, in view of the aforesaid circumstances, this petition is disposed of clarifying that interim maintenance amount is due till the date i.e. 25.6.2013 as on 26.6.2013 final order was passed and the amount is payable according to the aforesaid order which has been finally upheld with some modifications of this court in criminal revision No.1772/14; M.Cr.C. No.16359/14 and M.Cr.C.No.13132/2014. The amount which has been paid earlier by the petitioner is adjustable and rest of the amount is recoverable to the extent of one year back of the date of filing of the application for recovery of the due amount and the amount which is due from the date of filing of the application till the due date i.e. 25.6.2013. Learned Family court, Harda is directed to conduct the proceeding of the case in the aforesaid manner keeping in mind the aforesaid judgment of the Apex court. Accordingly, this petition is disposed of. A copy of this order be sent to the concerned court below for information.