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2023 DIGILAW 636 (UTT)

Seema Devi v. State of Uttarakhand

2023-11-21

RAVINDRA MAITHANI

body2023
JUDGMENT : (Ravindra Maithani, J.) The challenge in this revision is made to the impugned order dated 29.07.2022, passed in Misc. Criminal Case No.105 of 2018, Smt. Seema & Others Vs. Yaspal Singh, by the court of Judge, Family Court, Kotdwara, District Pauri Garhwal (“the case”). By it, an application filed by the revisionists under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) has been rejected on the ground of maintainability. 2. Heard learned counsel for the parties and perused the record. 3. Facts necessary to appreciate the controversy, briefly stated, are as follows: the revisionist no.1 Smt. Seema Devi and the respondent no.2, Yaspal Singh, were married on 07.05.1996. They are blessed with three children. When there was a matrimonial discord, the revisionists filed an application under Section 125 of the Code on 25.03.2010, which was the basis of Maintenance Case No. 30 of 2010, Smt. Seema & Others Vs. Yaspal Singh, in the court of Judge, Family Court, Pauri Garhwal (“the first maintenance case”). The first maintenance case was decided on the basis of a compromise on 11.08.2010, by which the private respondent did agree to pay Rs. 6,000/- per month as maintenance to the revisionists. The private respondent has not been regularly making payment of the maintenance, as agreed between the parties in the first maintenance case. It is therefore, the revisionists filed an application under Section 128 of the Code for recovery of arrears, which was the basis of Misc. Criminal Application No.18 of 2012, Smt. Seema & Others Vs. Yaspal Singh, in the court of Judge, Family Court, Pauri Garhwal (“the recovery case”). The recovery case was finally decided on 20.09.2012 on full satisfaction. It appears that, thereafter, the parties entered into an agreement on 13.06.2015 and both the parties were reunited, but again the relations became strained. The revisionists, thereafter, again filed an application under Section 125 of the Code seeking maintenance, which is the basis of the case. 4. Learned counsel for the parties would submit that evidence was already lead in the case, arguments were heard, but at that stage, an application was filed by the private respondent for rejection of the application under Section 125 of the Code, filed by the revisionists, which was rejected by the impugned order. 4. Learned counsel for the parties would submit that evidence was already lead in the case, arguments were heard, but at that stage, an application was filed by the private respondent for rejection of the application under Section 125 of the Code, filed by the revisionists, which was rejected by the impugned order. It has been the case of the private respondent that since the order dated 11.08.2010, passed in the first maintenance case, was in existence, which was still enforceable, the subsequent application, under Section 125 of the Code is not maintainable. This contention was upheld by the impugned order. It is challenged in the instant revision. 5. Today, at the very outset, learned counsel for the revisionists very fairly conceded that in view of the judgment in the case of Bhupinder Singh Vs. Daljit Kaur, (1979) 1 SCC 352 , subsequent application for maintenance is not maintainable, but he would submit that the subsequent application filed by the revisionists under Section 125 of the Code, which is the basis of the case, ought not to have been rejected on this technical ground, instead, it could have been treated as an application under Section 127 of the Code, and parties should have been permitted to lead evidence on that aspect. In support of his contention, learned counsel for the revisionists has placed reliance on the principles of law, as laid down in the case of Chauhan Anjanaben Jayantibhai Vs. Chauhan Kanaiyalal Mohanlal, 2011 SCC OnLine Guj 4805. 6. In fact, in the case of Bhupinder Singh (supra), after maintenance order, the husband and wife both were reunited. The short question of law that was pressed before the Hon’ble Supreme Court in that case was that the order of maintenance under Section 125 of the Code is superseded by the subsequent living of the wife with the husband and is unavailable for enforcement. The Hon’ble Supreme Court held that an order remains operative until vacated or altered in terms of the provisions of the Code itself. In Paragraph Nos. 7 and 8, the Hon’ble Supreme Court observed as hereunder:- “7. We are concerned with a Code which is complete on the topic and any defence against an order passed under Section 125 of the Criminal Procedure Code must be founded on a provision in the Code. In Paragraph Nos. 7 and 8, the Hon’ble Supreme Court observed as hereunder:- “7. We are concerned with a Code which is complete on the topic and any defence against an order passed under Section 125 of the Criminal Procedure Code must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Section 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. In this view, we hold that the decisions cited before us in favour of the proposition contended for by the petitioner are not good law and that the view taken by Sir Shadi Lal, Chief Justice, is sound.” “8. A statutory order can ordinarily be demolished only in terms of the statute. That being absent in the present case the Magistrate will execute the order for maintenance. Our order does not and shall not be deemed to prejudice the petitioner in any proceedings under the law which he may start to vacate or vary the order for maintenance.” 7. In the case of Chauhan Anjanaben Jayantibhai (supra), in a similar circumstances when order for maintenance was granted, parties reunited, but again when the wife filed application seeking maintenance, it was rejected on the ground that it is not maintainable. The Hon’ble Gujarat High Court observed that such a technical view should be avoided and instead such subsequent application under Section 125 of the Code may be treated under Section under Section 127 of the Code. In Para 5.1 of the judgment, the Hon’ble Gujarat High Court observed as hereunder:- “[5.1] Even otherwise, it appears to the Court that the learned Magistrate has taken a too technical view in rejecting the application qua applicant Nos. In Para 5.1 of the judgment, the Hon’ble Gujarat High Court observed as hereunder:- “[5.1] Even otherwise, it appears to the Court that the learned Magistrate has taken a too technical view in rejecting the application qua applicant Nos. 1 and 2 claiming maintenance under Section 125 of the CrPC. It is to be noted that even the learned Magistrate has observed that at the most applicant Nos. 1 and 2 can and/or could have submitted the application under Section 127 of the CrPC. By observing so the learned Magistrate has rejected the said application by observing that present application is under Section 125 of CrPC and not under section 127 of the CrPC. Looking to the object and purpose of providing maintenance under section 125 of the CrPC, which is to protect the interest of the two parties, the neglected wife, the learned Magistrate could have treated the said application under Section 127 of the CrPC and ought to have decided the same on merits. Under the circumstances, on the aforesaid ground also, the impugned order cannot be sustained.” 8. Learned counsel for the private respondent would submit that in order to treat an application under Section 127 of the Code, there should be allegations to that effect; there should be material before the Court. He would submit that the order is in accordance with law, which does not warrant any interference. He would also submit that in case the application is allowed to be treated under Section 127 of the Code, the order of interim maintenance should remain unenforceable and the amount that has been paid pursuant to the interim order passed in the case should be permitted to be adjusted in the amount that may become payable by the private respondent to the revisionists. 9. Learned counsel for the revisionists has no objection to the proposition with regard to the interim order and adjustment of the amount of maintenance, as proposed by the learned counsel for the private respondent. 10. In the instant case, admittedly, earlier the revisionists did file first maintenance case, which was decided on the basis of amicable settlement between the parties on 11.08.2010. By this order, the private respondent had agreed to pay Rs. 6,000/- per month as maintenance to the revisionists. Fact remains that this order has never been set aside, altered or modified in accordance with any provision of the Code. By this order, the private respondent had agreed to pay Rs. 6,000/- per month as maintenance to the revisionists. Fact remains that this order has never been set aside, altered or modified in accordance with any provision of the Code. In view of the settled law, if the parties have resumed cohabitation after passing of the order dated 11.08.2010 in the first maintenance case, it does not alter the statutory nature of the order dated 11.08.2010, passed in the first maintenance case. In view of it, the order dated 11.08.2010, passed in the first maintenance case, is still operative, and this being so, subsequent application seeking maintenance under Section 125 of the Code is not maintainable. Therefore, the impugned order, to that extent, does not warrant any interference that the subsequent application under section 125 of the Code is not maintainable. But, does it mean that the entire proceedings of the case, which is based on the subsequent application under Section 125 of the Code, filed by the revisionists, should be set aside? The application that was filed subsequently by the revisionists is on record. The revisionists did not hide anything. In Para 6 of her application under Section 125 of the Code dated 03.12.2018, the revisionists have stated that earlier there were maintenance applications filed by the revisionists, but they were followed by the settlement between the parties. In this application, the revisionists have requested for Rs. 30,000/- per month, as maintenance. The initial compromise order was passed on 11.08.2010 in the first maintenance case. In the year 2018, the revisionists did file an application seeking Rs. 30,000/- per month. This application has been filed under Section 125 of the Code. Such application under Section 125 of the Code is not maintainable. 11. Learned counsel for the revisionists seeks permission to lead evidence for enhancement of the maintenance that was granted in the first maintenance case. He would submit that the application under Section 125 of the Code, which is the basis of the case, may be treated under Section 127 of the Code, and parties may be permitted to lead evidence. 12. It is true that the application is filed under Section 125 of the Code, but it is also true that in the first maintenance case, the revisionists were granted Rs. 6,000/- per month as maintenance. As stated, the second application for maintenance is not maintainable. 12. It is true that the application is filed under Section 125 of the Code, but it is also true that in the first maintenance case, the revisionists were granted Rs. 6,000/- per month as maintenance. As stated, the second application for maintenance is not maintainable. In the second maintenance application, the revisionists have sought Rs. 30,000/- per month as maintenance. 13. Under the facts and circumstances of this case, this Court is of the view that the subsequent application under Section 125 of the Code may be treated as an application under Section 127 of the Code, and the parties may be permitted to lead evidence on that aspect. 14. The application filed by the revisionists under Section 15 of the Code, which is the basis of the case, shall be treated as an application under Section 127 of the Code. Parties shall be permitted to lead evidence afresh, accordingly. 15. Any interim order, that has been passed in the case shall come to an end, but any payment, that has been received by the revisionists pursuant to interim order passed in the case shall not be refunded instantly, instead, it may be adjusted against any amount, that may be payable by the private respondent to the revisionists pursuant to order dated 11.08.2010 passed in the first maintenance case or any order that may be passed in future. 16. The revision stands disposed of, accordingly.