Court:Bombay High Court
Bench: JUSTICE B Chavan
Dattatrey S/O Champatgir Giri Vs. The State Of Maharashtra On 24 September 1992
Grant of maintenance – Where wife has no justification for withdrawal from the company of her husband, grant of maintenance liable to be set aside.
1. By this application under S. 482 of Code of Criminal Procedure, the applicant challenges the order of maintenance dated 13-7-1987 passed by the Judicial Magistrate, First Class, Dharni, awarding maintenance of Rs. 300/- per month to non-applicant No. 2 as confirmed by the Additional Sessions Judge, Achalpur in Revision Application No. 113/91.
2. The undisputed facts are that, the applicant and non-applicant No. 2 are husband and wife. They were married on 9-12-1984. In December 1985 non-applicant No. 2 left the residence of the applicant. The applicant, therefore, filed a Hindu Marriage Petition bearing No. 103/86 for restitution of conjugal rights under S. 9 of the Hindu Marriage Act, 1956. The learned Trial Judge held that the applicant had failed to prove his case and, therefore, he dismissed the restitution application on 5-2-1987. The applicant, therefore, filed Civil Appeal No. 69/87. While the said appeal was pending, non-applicant No. 2-wife on 18-3-1987 filed an application for maintenance under S. 125 of Criminal Procedure Code. Notice in the said application was sought to be served by Registered Post. On receiving an endorsement of the postal authorities “Refused”, the learned Magistrate passed an order on 16-6-1987 to proceed the applicant ex parte. The learned Judicial Magistrate, First Class thereafter proceeded to decide the said application under S. 125 of Criminal Procedure Code and by mainly relying on the finding recorded in H.M.P. No. 103/86, he held that the non-applicant No. 2 had proved her case of cruelty and therefore she was justified in living separate from the applicant, and consequently awarded a maintenance of Rs. 300/- per month plus Rs. 100/- by way of costs. This order was passed on 13-7-1987. In the meantime, applicant who was pursuing his Civil Appeal No. 69/87 against the adverse order in H.M.P. No. 103/86 succeeded in his appeal and the learned Appellate Judge holding that the wife i.e. Non-applicant No. 2 had no reasonable cause to withdraw from the society of her husband – the applicant, allowed the said appeal, set aside the order of the trial court and passed the decree for restitution of conjugal rights in favour of the present applicant. Non-applicant No. 2 filed Second Appeal No. 192/89 but it came to be summarily dismissed.
3. When the non-applicant No. 2 tried to execute the order of maintenance passed in her favour, the applicant challenged the original order of maintenance dated 13-7-1987 by filing Criminal Revision Application No. 113/91 mainly on the ground of defective service, but the said revision came to be dismissed on 26-9-1991. It is in these circumstances that the Criminal Application No. 9/92 came to be filed.
4. However, there are certain events which are required to be taken note of, which admittedly have taken place and with which both the applicant and the non-applicant No. 2 are undoubtedly concerned and which have also a bearing on the eventual order to be passed in the present application. The applicant after getting the decree for restitution of conjugal rights and being unsuccessful in securing the company of the non-applicant No. 2, filed H.M.P. No. 77/90 for divorce under S. 13 of the Hindu Marriage Act. A decree for divorce was passed in his favour on 12-11-1991. After the said decree for divorce was passed, the non-applicant No. 2 remarried on 16-5-1992. Therefore, as the position stands today, in no case the liability of the applicant can extend beyond 16-5-1992 which is the date on which non-applicant remarried.
5. Shri Mohta, the learned counsel for the applicant urged in the first instance that if the endorsement made on the postal packet is seen, it is doubtful whether the applicant had really refused the service and in any case even assuming that service was effected and the applicant refused to accept service, the said service was not in accordance with the provisions of Sections 61, 62 and 63 of the Code of Criminal Procedure which provides for the service only through a Police Officer or any other Officer as prescribed by the State Government. He contended that in no case, service by Registered Post is permissible. Consequently the whole proceeding was liable to be quashed and the matter will have to be started afresh by allowing the applicant to participate in the enquiry. In support of this argument of defective service, Shri Mohta relied upon a number of decisions in which a view has been taken that service in proceedings under S. 125 of the Code of Criminal Procedure can be effected only under sections 61 and 62 of the Code of Criminal Procedure and service by registered post is not permissible.
6. On the other hand, Shri Vidwans, the learned counsel for the non-applicant No. 2 urged that S. 125 of Criminal P.C. is a special provision made for granting maintenance in an expeditious manner and since it is in the nature of a quasi civil proceeding service by post should be held to be a good service just as in case of a civil proceeding. In any case, Shri Vidwans submitted that the applicant who got the rule issued in thus matter from this Court subject to certain conditions, having failed to comply with those conditions strictly should not be heard unless he complies with those conditions or accepts that he has not complies with them.
7. It appears that when the Rule was granted in this matter, stay of recovery of amount was subject to condition that all the arrears will be paid within six weeks from 3-1-1992 and in the meanwhile the applicant will continue to deposit at the rate of Rs. 200/- per month in the trial Court until final adjustment is made pending the decision of the present application. Shri Mohta, the learned advocate for the applicant pointed out that no doubt he has not fully complied with the order, but he has deposited an amount of Rs. 2,000/- after the passing of this order and in case applicant succeeds on merits as is bound to succeed, in view of the order passed in the civil proceeding, an action will have to be taken and ultimately non-applicant No. 2 will be required to refund the amount that she has received which may be considered while passing the final order in this case.
8. As stated earlier, now the parties have permanently separated. Not only that, but non-applicant No. 2 has remarried. There is no longer any liability on the part of the applicant to provide any maintenance to non-applicant No. 2 even assuming that non-applicant No. 2 had a valid claim against him. I do not wish to enter into the controversy whether service by registered post in a proceeding under S. 125 of Criminal P.C. is in accordance with law. But for the purpose of the present proceeding. I will assume that it was a valid service and consider the merits of the case. While narrating the facts I have already said that the order of maintenance that was passed on 13-7-1987 was mainly on the basis of the finding given by the trial Court in H.M.P. No. 103/86. However, in Appeal No. 69/87 that finding was upset and on the contrary, the Appellate Court held that the wife-non-applicant No. 2 had no reasonable cause to withdrawn from the society of her husband, which finding has been confirmed by this Court in Second Appeal. Therefore, the final position that obtained was that the non-applicant No. 2 has been held by a competent Civil Court that she had no justification for withdrawing from the company of her husband and that being the factual position, non-applicant No. 2 would not have been able to claim any order of maintenance under S. 125 of Criminal Procedure Code. It is on this narrow ground, the order passed on 13-7-1987 awarding maintenance in favour of the non-applicant No. 2 is liable to be set aside. However, while setting aside that order, I must say that Shri Mohta for the applicant in fairness submitted that his client was ready to forego whatever amount he has already deposited though as a result of the success in the present application, he would have been entitled to withdraw amounts lying in court and refund of the amounts withdrawn by the non-applicant No. 2. He said that roughly an amount of Rs. 8,100/- was deposited by him and he has no objection for the non-applicant No. 2 to withdraw all these amounts which are lying in deposit in the trial Court. In the circumstances, the following order is passed.
9. The application is allowed. The order of maintenance dated 13-7-1987 passed in Miscellaneous Criminal Application No. 3/87 by Judicial Magistrate, First Class, Dharni is set aside and quashed. It is however, directed that all the amounts deposited by the applicant in any proceeding whatsoever for being payable to the non-applicant No. 2 shall be paid to non-applicant No. 2 and she will be entitled to withdraw those amounts from whichever Court they are deposited by virtue of this order notwithstanding the fact that the original maintenance order is quashed. It is needless to say that the non-applicant is made entitled to withdraw this amount on the basis that she will have no claim for any maintenance against the applicant including for the period 12-11-1991 the date of the divorce decree and 16-5-1992 the date of her remarriage.
10. Application allowed.