Court:GUJARAT HIGH COURT
Bench: JUSTICE S.G. Shah
Ajay Bhaichandbhai Vora vs. Rupalben Ajaybhai Vora and Ors. On 08 January 2018
Maintenance does not include the provision or the right to seek lump sum amount for residential accomodation though the word ‘maintenance’ includes all benefits towards food, lodging, boarding, medicines, clothes, transportation, education, entertainment, etc.
1. Heard learned advocate Mr. Virat G. Popat for the applicant, learned advocate Mr. Hemal Shah appearing for Mr. Pankaj R. Desai for respondents No. 1 and 2 and learned APP Mr. Manan Mehta for the respondent – State being a formal party. The respondent No. 1 has filed an affidavit on 11.12.2017 disclosing that the applicant has yet not paid the amount of maintenance as per the impugned order. However, when court has issued notice by order dated 10.7.2017, it is made clear that interim relief is granted only to the extent of restraining the respondent – wife from recovering the amount of ` 7,50,000/- awarded towards provision of residential accommodation by the Family Court by impugned order dated 21.2.2017. The court has, while granting such relief in terms of paragraph 7(e) made it clear that such relief is granted on condition that the applicant shall pay regular maintenance as ordered by the learned trial Judge in the impugned order and shall clear the arrears, if any, within 45 days. In view of such clarity, the applicant herein is bound to pay the monthly maintenance as per the impugned order and to wipe out the arrears within 45 days.
2. The applicant has submitted that in fact, he has deposited different amounts and has filed an affidavit dated 15.12.2017, attaching certificates dated 4.12.2017 and 6.12.2017, disclosing that certain amounts are deposited by the applicant towards maintenance of respondents.
3. Therefore, now, when matter is to be finally disposed of, it is made clear that if any amount is unpaid by the applicant – husband, then wife is entitled to recover it in accordance with law. But, for such purpose, the present revision application cannot be kept pending like execution petition, more particularly, when applicant has on day one disclosed it before the court that he does not press this application qua monthly maintenance granted to the respondent – wife, but restricts the present Criminal Revision Application qua the lump-sum amount of ` 7.5 Lacs directed to be paid to the respondents towards residential accommodation. Therefore, there is no reason to keep this revision application pending any further except modifying the impugned order dated 21.2.2017 so far as direction No. 3 in operative part is concerned, whereby applicant is directed to pay a lump-sum amount of ` 7.5 Lacs to the applicant i.e. present respondents No. 1 and 2 towards residential accommodation. The law is well settled that the Magistrate or Family Court do not have jurisdiction to grant any lump-sum amount while dealing with the application u/s. 125 of the Criminal Procedure Code, 1973.
4. It is a settled legal position that the word ‘maintenance’ has no limited consideration, meaning thereby though the word ‘maintenance’ includes all benefits towards food, lodging, boarding, medicines, clothes, transportation, education, entertainment etc., in other words, it includes all the facilities that may be made available to the wife in her house with her husband, but in any case, the word ‘maintenance’ does not include the provision or a right to seek lump sum amount for residential accommodation.
5. For the purpose, reference of Section 125 of the Code of Criminal Procedure is material which speaks about the right of the person to get maintenance and though the word ‘maintenance’ is nowhere defined in the Code, it is clear and obvious that ‘maintenance’ means monthly amount to be paid by the husband or the concerned person to the wife or parents or children as the case may be; where the material part of Section 125 of the Code of Criminal Procedure reads as under:-
Section : 125. Order for maintenance of wives, children and parents:-
(1) xxxx xxxx xxxx
(a) xxxx xxxx xxxx
(b) xxxx xxxx xxxx
(c) xxxx xxxx xxxx
(d) xxxx xxxx xxxx
A Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay to such person as the Magistrate may from time to time direct;
6. Therefore, a bare reading of the relevant provision of Section 125 of Code of Criminal Procedure makes it clear that under such Section, right of the wife or the concerned person is to claim monthly allowance on such monthly rate that the Magistrate may think fit from time to time. Thus, in any case, the learned Family Court has no right or jurisdiction whatsoever, to direct the present applicant to provide lump sum amount to the wife for residential accommodation.
7. The respondents as well as Family Court has placed reliance upon an unreported judgment dated 19.4.2016 between Sandip Pramodrai Jani v. State of Gujarat & Ors. decided in Special Criminal Application No. 1129 of 2016, wherein the Single Judge of this court has, relying upon the decision of Komalam Amma v. Ku-mara Pillai Raghavan Pillai reported in MANU/SC/8262/2008 : 2008 (4) R.C.R. (Civil) 900 : AIR 2009 SC 636 and Mangat (dead) and Anr. v. Punna Devi (Smt.) (Dead) and Ors. reported in MANU/SC/0040/1996 : 1995 (3) R.R.R. 632 : (1995) 6 SCC 88 held that order of payment of lump sum amount towards provision for residential accommodation is proper and thereby, refused to quash such order by dismissing the petition. However, judgment of Komalam Amma (supra) does not confirm that the Family Court or the Magistrate has power to grant lump-sum amount towards provision for residential accommodation in favour of wife, more particularly with reference to Section 125 of the Code of Criminal Procedure. Though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over the head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump-sum amount in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act, 1956 and not under provisions of Section 125 of the Code of Criminal Procedure, 1973. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act, 1956 and the Protection of Women from Domestic Violence Act, 2005, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
8. It cannot be ignored that decision in Komalam Amma (supra) though discussion is there with reference to the maintenance, ultimately, Hon’ble Supreme Court has remanded the matter back to the High Court to consider the issue by re-hearing the appeal, making it clear that they have not expressed any opinion on merits. Therefore, this judgment cannot be considered as a judicial dictum.
9. Similarly, in decision in Mangat (supra), the real dispute before the Hon’ble Supreme Court was u/s. 14 of the Hindu Succession Act, 1956 and that too when particular property was assigned to a widow for her lifetime maintenance with some lump-sum payment in lieu of monthly maintenance and therefore, both things cannot go together, i.e. lump-sum payment for residential accommodation so also monthly allowances towards maintenance. Moreover, though there is reference of the word ‘maintenance’ in the judgment, it is not with reference to the provision of Section 125 of the Cr.P.C., but with reference to the award by arbitrator for the maintenance of widow and consideration was of the Hindu Adoption and Maintenance Act, 1956.
10. Therefore, it cannot be ignored that provision in above-referred statutes are of civil nature where liability of the husband is based upon his properties and not regarding his personal liberty because of the provision of Cr.P.C. is to send the husband behind the bars for non-payment of amount of maintenance and therefore, if court awards the lump-sum payment of Lacs of rupees, then, no payment of such amount by a salarised or labour class people would result into attack on their freedom to survive, whereby they are entitled to work and maintain his wife regularly though they may not have huge properties or savings to make lump-sum payment towards residential accommodation as ordered by impugned order.
11. Therefore, none of judgments relied upon in Sandip Pramodrai Jani (supra), make it clear that the trial Court has absolute and uncontrolled jurisdiction to grant lump sum amount towards residential accommodation also though the phrase used in Section 125 of the Code is quite clear that a Magistrate may order to make a monthly allowance as maintenance at monthly rate. It is also evident that in all such cited cases, the Court has relied upon the provisions of Hindu Adoption and Maintenance Act, 1956 and not under the provisions of Section 125 of the Code.
12. Therefore, when Family Court has relied upon the judgment in the case of Sandip Pramodrai Jani (supra), it becomes clear that Family Court has misinterpreted the concept of maintenance to be awarded under the provisions of Section 125 of the Code where there is specific disclosure about monthly allowances at monthly rate and therefore, there cannot be an award of lump-sum amount towards residential accommodation. It cannot be ignored that judgment in the case of Sandip Pramodrai Jani (supra) has been challenged before the Hon’ble Supreme Court of India in SLP (Criminal) No. 451 of 2017, which is pending before the Hon’ble Supreme Court after condoning the delay in filing such SLP.
13. In view of above facts and circumstances, when even applicant has not pressed for quantum of maintenance except lump-sum award of ` 7.5 Lacs towards residential accommodation, I have no option, but to partly allow the Criminal Revision Application so as to modify the impugned order dated 21.2.2017, whereby the operative paragraph 3 of such order is hereby quashed and set-aside, while confirming rest of the order.
14. However, it is made clear that such order would not preclude and disturb or restrict in any manner whatsoever the right of the respondents No. 2 and 3 being wife and minor son of the applicant to claim appropriate relief for residential accommodation under any another enactment viz. Hindu Adoption and Maintenance Act, 1956, Protection of Women from Domestic Violence Act, 2005 etc. If respondents initiate any such proceedings under any appropriate enactment, then, in that case, the competent court shall decide such litigation purely based upon evidence and applicable law at the relevant time. In view of the above, the present Criminal Revision Application is partly allowed.
Ajay Bhaichandbhai Vora vs. Rupalben Ajaybhai Vora and Ors. (08.01.2018 – GUJHC) : MANU/GJ/0329/2018