Husband's economic progress alone cannot be
reason for enhancement !! Also, as a prerequisite for enhancement using 127 CrPC.,
wife should be receiving maintenance under 125 CrPC. only !! Maintenance
ordered in a civil case can NOT be attacked by 127 CrPC petition!
* wife wins Sec 125 maintenance, initially 250/ p.m. , then 400/- and
finally 500/- p.m. under Sec 125 CrPC
* Then wife files civil case for divorce and gets enhanced
maintenance of 1200/- p.m. and then divorce
* some years later, wife files enhancement u/s 127 Crpc seeking
10000 p.m!!
* court dismisses wife's case saying for invoking 127 Cr.P.C. a
prerequisite that wife should b receiving maintenance under under 125 Cr.P.C.
only !! and civil case decrees cannot be attacked thru a CrPC 127 petition
The Hon HC says and we quote
"...husband's economic progress
alone cannot be subject matter of filing any application under section 127
Cr.P.C. for enhancement. Assuming that there exists some right or semblance of
right, then also, unless & until it is established beyond doubt that the
wife is unable to carry out her regular life out of maintenance amount agreed
upon in a civil court and in case if the maintenance fixed by civil court is
also not found to be adequate in light of the galloping inflation, then only
under section 25 of the Hindu Marriage Act the Court has adequate remedy to
enhance the maintenance and/or adjudicate upon wife's seeking appropriate
relief thereof...."
"...On plain reading of the
language one would comes to clear conclusion that for invoking section 127
Cr.P.C. it is a prerequisite that wife should have been receiving maintenance
under order of the court under section 125 Cr.P.C. only. In the instant case as
could be seen from developments, of instances and orders it cannot be said that
wife was receiving Rs.1200/- under section 125 Cr.P.C. and therefore the court
before which the Misc. Criminal Application was filed under section 127 Cr.P.C.
being Criminal Misc. Application No. 3016 of 2005 has no jurisdiction to
entertain the application as if it had been an inherent lack of jurisdiction on
account of there existing an order of civil court under which maintenance was
fixed. Now that maintenance was rightly fixed or wrongly fixed or not
adequately fixed is not a question which can gone into on an application made
under section 127 Cr.P.C...."
“….The order in the field was the
order passed by the civil court which govern the relationship of two parties,
namely husband and wife and therefore civil court order could not have been
subject matter of any further scrutiny and or examination in the criminal proceedings
in exercise of power under section 127 Cr.P.C….”
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******************************************************************
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 47 of 2012
*************************************************
HANSABEN RAMJIBHAI PITHWA
- Applicant
Versus
STATE OF GUJARAT & 1 -
Respondents
*************************************************
Appearance :
MR JA ADESHRA for Applicant:
PUBLIC PROSECUTOR for Respondent: 1,
MR BP GUPTA for Respondent : 2,
*************************************************
CORAM
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 09/04/2012
ORAL ORDER
Heard learned advocates for the parties.
The petitioner by way of this petition approached this Court for
following reliefs :-
"(A) The Hon'ble Court be pleased to
issue appropriate writ, order or direction by quashing and setting aside the
impugned order dtd. 30.08.2011 passed by the Learned Judge, Family Court No.4,
Ahmedabad below application Exh. 40 in Criminal Misc. Application No. 3016 of
2005 at Annexure - A and further be pleased to order / direct the Family
Court,Ahmedabad to hear and decide Criminal Misc. Application No. 3016 of 2005,
on merits as expeditiously as possible and further be pleased to order /
direct the respondent no.2 to regularly pay to the petitioner interim
maintenance @ Rs.10,000/- per month.
(B) Pending admission hearing & final
disposal of this petition the Hon'ble Court be pleased to order / direct the
respondent no.2 to regularly pay to the petitioner interim maintenance @
Rs.10,000/- per month."
In short the order dated 30/8/2011 is under challenge in this
proceeding, where under the application filed by the present respondent no.2
under exhibit-40 in Criminal Misc. Application No. 3016 of 2005 is accepted and
application filed by the petitioner under section 127 Cr.P.C. is rejected.
The facts in brief leading to filing this petition deserve to be
set out as under.
The petitioner, an ex-wife of respondent no.2 had filed
proceedings under Section 125 of Criminal Procedure Code for seeking
maintenance from respondent no.2, wherein the competent court passed an order
on 22/2/1990, ordering interim maintenance of Rs.250/- per month which
had culminated into final order of Rs.400/- per month vide order dated
26/4/1991. The said order was subject matter of challenge before this Court in
Criminal Revision Application No. 1017 of 1991, which was turned down by this
Court in its order dated 13/7/1994. Thereafter the wife applied for enhancement
under section 127 Cr.P.C. and that application was allowed and maintenance
was enhanced from Rs.400/- to Rs.500/- vide order dated 18/3/1997. Thereafter
the wife had filed Hindu Marriage Petition No. 315 of 1995, wherein on
31/3/1998 an interim order was passed taking into consideration that wife is
ordered to be paid Rs.500/- by way of maintenance under section 125 Cr.P.C.
and Rs.1200/- was ordered and ultimately application made being Hindu
Marriage Petition No. 315 of 1995 seeking divorce from husband came to be
disposed by decree of divorce dated 8/12/1998 on the basis of the
purshish filed by the husband and endorsed by the wife through her advocate. The
decree was thus passed and the marriage got dissolved vide order & decree
dated 8/12/1998. The wife filed another application under section 127
Cr.P.C. being Criminal Misc. Application No. 3016 of 2005 seeking
enhancement of maintenance for receiving Rs.10,000/-, in which exhibit-40
came to be filed inter alia contending that said application was not
maintainable in view of the fact that it was agreed for paying Rs.1200/- in
civil proceedings and therefore this application under section 127 Cr.P.C. is
not competent and was required to be disposed of. Said application below
exhibit-40 is accepted by the Family Court and an order was passed on 30/8/2011
which is subject matter of challenge in this petition as stated herein above. http://evinayak.tumblr.com http://vinayak.wordpress.com http://fromvinayak.blogspot.com
Learned advocate for the petitioner has relied upon decision of
this Court in case of Hansaben, wife of Rameshkumar Ratilal Patani Vs.
Rameshkumar Ratilal Patani and another, reported in 1993 (1) G.L.H. pg.886,
and contended that the two proceedings namely civil proceedings under Hindu
Marriage Act 1955 and under Criminal Procedure Code are distinct and separate
and that the Court was not justified in accepting the submission of husband in
rejecting application under section 127 Cr.P.C. made by the wife / petitioner
herein. Learned advocate for the petitioner relied upon another decision of the
Apex Court in case of Ramesh Chandra Vs. Beena Saxena, reported in 1982(0)
GLHEL-SC 41633, and contended with special emphasis in respect to
observation made in para no.5, and contended that in view of those observations
it was not open to the Court to reject the petition filed by the wife for
enhancement under section 127 Cr.P.C.
Learned advocate for the petitioner further relying upon
observations of this Court in case of Ranjanaben Bachubhai Vs. Dilip
Ramniklal Katarmal, reported in 2011 (0) GJHEL-HC 225589 contended that the
order passed under section 24 of Hindu Marriage Act cannot be looked into while
deciding application filed under section 125 Cr.P.C. Therefore this petition is
required to be allowed.
Learned advocate for the petitioner contended that the purshish
submitted by husband, whereof endorsement made by advocate for the wife is
eloquently clear that the wife has agreed for Rs.1200/- for the present (in
vernacular 'Halpurto'), and therefore the order made under section 125 Cr.P.C.
is not set aside or cancelled by any competent court. Therefore it is
absolutely justified in seeking relief under section 127 Cr.P.C.
Learned advocate Shri. Gupta for respondent / husband contended
that section 127 does not envisage repeated applications for enhancement. The
entire purport of section 125 to 128 Cr.P.C. indicate that wife be a divorcée,
deserted or turned out, such wife is entitled for maintenance so that she may
not have to live the life of vagaries. This section cannot be turned out to
be an instrument of persistent harassment to husband, whose subject matter is
set at rest by competent civil court, wherein the civil court after taking into
consideration the wife's plea with regard to maintenance passed an order and
decree of divorce wherein maintenance is accepted at Rs.1200/- per month.
Learned advocate for respondent husband further submitted that
section 127 Cr.P.C. presupposes existence of payment of maintenance. In the
instant case under section 125 Cr.P.C. maintenance was ordered to be paid.
Thereafter maintenance application made under section 127 was allowed and that
order did not remain in force in view of the fact that competent civil court
had adjudicated upon this aspect of maintenance and the litigation came to an
end wherein the wife had agreed for Rs.1200/- per month. Now, if the wife was
aggrieved on account of any misconception of operation of the order it is open
to the wife to approach for appropriate remedy including invoking section 25 of
Hindu Marriage Act.
This Court is of the considered view that the petitioner wife had
no right to maintain the original application in view of the following facts.
(1) The petitioner wife in fact filed petition for divorce being
Hindu Marriage Petition No.315 of 1995 in which proceedings of interim
maintenance was fixed by the court on 31/3/1998 and in that order maintenance
of Rs.500/- was considered and thereafter when the wife, i.e. present
petitioner had agreed for maintenance of Rs.1200/- per month in the subsequent
civil proceeding, it can well be said that she had accepted the order of divorce
and maintenance both. The husband's economic
progress alone cannot be subject matter of filing any application under section
127 Cr.P.C. for enhancement. Assuming that there exists some right or semblance
of right, then also, unless & until it is established beyond doubt that the
wife is unable to carry out her regular life out of maintenance amount agreed
upon in a civil court and in case if the maintenance fixed by civil
court is also not found to be adequate in light of the galloping inflation, then
only under section 25 of the Hindu Marriage Act the Court has adequate remedy
to enhance the maintenance and/or adjudicate upon wife's seeking appropriate
relief thereof.
The plain language of section 127(1) is required to be set out as
under.
"Sec. 127. Alteration in allowance - (1)
On proof of a change in the
circumstances of any person, receiving, under
section 125 a monthly
allowance for the maintenance or interim
maintenance, or ordered
under
the same section to pay a monthly allowance for the
maintenance, or interim maintenance, to his
wife, child, father or
mother,
as the case may be, the Magistrate may make such alteration,
as he
thinks fit, in the allowance for the maintenance or the interim
maintenance, as the case may be."
On plain reading of the language one would comes to clear
conclusion that for invoking section 127 Cr.P.C. it is a prerequisite that
wife should have been receiving maintenance under order of the court under
section 125 Cr.P.C. only. In the instant case as could be seen from
developments, of instances and orders it cannot be said that wife was
receiving Rs.1200/- under section 125 Cr.P.C. and therefore the court before
which the Misc. Criminal Application was filed under section 127 Cr.P.C. being
Criminal Misc. Application No. 3016 of 2005 has no jurisdiction to entertain
the application as if it had been an inherent lack of jurisdiction on account
of there existing an order of civil court under which maintenance was fixed. Now
that maintenance was rightly fixed or wrongly fixed or not adequately fixed is
not a question which can gone into on an application made under section 127
Cr.P.C. http://evinayak.tumblr.com
http://vinayak.wordpress.com http://fromvinayak.blogspot.com
In light of the aforesaid reasonings the decisions cited at the
bar would have no applicability to the peculiar facts & circumstance of the
present case, wherein it is said that wife could not have invoked section 127
Cr.P.C. repeatedly when the wife was not receiving maintenance under order made
under section 125 Cr.P.C. The order in the field was the order passed by the
civil court which govern the relationship of two parties, namely husband and
wife and therefore civil court order could not have been subject matter of any
further scrutiny and or examination in the criminal proceedings in exercise of
power under section 127 Cr.P.C. The judgments cited therefore in my view
have no application on present case and therefore
the application deserves to be dismissed being bereft of merits. Hence the
application is rejected. Notice discharged. There shall be no order
as to costs.
However the Court has not opined on merits of wife's claim for
receiving enhanced maintenance if permissible under section 25 of Hindu
Marriage Act.
[S.R. BRAHMBHATT, J ]
/vgn
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