Pankaj Varma vs Padma @ Payal Varma on 29 August, 2017

(1) CRR 1014/2015

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************

SB:- Present :- Hon’ble Shri Justice G. S. Ahluwalia

CRR 1014/2015

Pankaj Verma
Vs.
Padma @ Payal Verma Anr.

Shri VK Saxena, Senior Counsel with Shri Aditya Singh,
counsel for the applicant.
Shri MK Chaudhary, counsel for the respondents.

ORDER

(Passed on 29 /08/2017)
This Criminal Revision under Sections 397, 401 of
Cr.P.C. has been filed against the order dated 1-9-2015
passed by Principal Judge, Family Court, Ashoknagar in
M.Cr.C. No.84/2015 by which the application filed by the
respondents under Section 125 of Cr.P.C. has been allowed
and the applicant has been directed to pay Rs.7,000/- per
month to each of the respondents.

(2) The necessary facts for the disposal of the present
application in short are that the respondents filed an
application under Section 125 of Cr.P.C. alleging inter alia that
the respondent no.1 was married to the applicant on 22-6-
2003 and the respondent no. 2 has born out of the wedlock.
The respondent no.1 was kept properly in her matrimonial
house for 1 to 1 and a half months of the marriage and
thereafter the applicant and her in-laws started harassing the
respondent no.1 and were passing taunts that less dowry has
been given. The respondent no.1 informed her parents and
brother about the demand of dowry and when her parents and
brother expressed their inability to fulfill the demand of the
applicant, then the applicant and her in-laws started beating
and harassing the respondent no. 1. The respondent no.1
gave birth to the respondent no.2 on 7-8-2004. As the
harassment of the applicant did not come to an end,
(2) CRR 1014/2015

therefore, the respondent no.1 came to her parents house
along with respondent no.2 in the month of August 2004 and
from thereafter She is residing along with her parents. It was
further alleged that the respondent no.1 has no independent
source of income and is unable to maintain herself as well as
unable to maintain respondent no.2. It was further alleged
that the applicant is a jeweller and is running a jewellery
shop. It was further alleged that during the pendency of the
application under Section 125 of Cr.P.C., the applicant has
remarried with one Lalitabai and a criminal case for offence
under Section 494 of Cr.P.C. is pending against the applicant.
Thus, it was prayed that the respondents are entitled for total
amount of Rs.7000/- per month either Jointly or separetely.
(3) The applicant filed his reply and denied the allegations.
(4) The Trial Court after recording evidence and hearing both
the parties, allowed the application and directed that each of
the respondent is entitled for Rs.7000/- per month from the
date of the application.

(5) Being aggrieved by the order of the Trial Court, the
applicant has filed the present Criminal Revision.
(6) Challenging the order of the maintenance passed by the
Trial Court, the Counsel for the applicant has confined his
arguments on two points. Firstly, that the respondents had
demanded total amount of Rs. 7000/- per month either jointly
or separately and therefore, the Trial Court has wrongly
awarded the maintenance amount of Rs.7000/- per month to
each of the respondent and secondly, as the applicant was not
responsible for the delay in the disposal of the application,
therefore, the Court below should not have directed the
payment of maintenance amount from the date of the
application.

(7) Per Contra, it is submitted by the Counsel for the
respondents, that earlier, there was a cap of Rs. 500/- under
Section 125 of Cr.P.C. which was enhanced to Rs. 3000/- by
the State amendment and accordingly, in view of the
maximum amount which could have been granted under
Section 125 of Cr.P.C., a prayer was made for total amount of
(3) CRR 1014/2015

Rs. 7000/- to both of the respondents. However, as the
maximum limit of compensation which could have been
granted under Section 125 of Cr.P.C. was omitted, therefore,
the Trial Court did not commit any mistake in awarding the
maintenance amount to the tune of Rs.7000/- per month to
each of the respondent. Further, it is submitted that the
maintenance amount has to be fixed considering the financial
status of the parties and therefore, the Trial Court did not
commit any mistake in awarding Rs.7000/- per month to each
of the respondent. To buttress his contentions, the Counsel
for the respondents relied upon U. Sree V. U. Sriniwas
reported in (2013) 2 SCC 114; Neeta Rakesh Jain Vs.
Rakesh Jeetmal Jain, reported in AIR 2010 SC 3540;
Bhuwan Mohan Singh Vs. Meena and others, reported in
AIR 2014 SC 2875; Piyushkant Sharma Vs. Smt. Pragati
Sharma and another reported in 2010(1) MPWN 41, and
Shail Kumari Devi and another Vs. Krishan Bhagwan
Pathak reported in 2009(1) MPLJ (Cri) 14.
(8) The moot question for determination in the present case is
that whether the Court can award maintenance amount in
excess of what has been claimed by the respondents in their
application under Section 125 of Cr.P.C.?
(9) It is well established principle of law that while assessing
the maintenance amount to be paid by the husband, the Court
should keep in mind the status of the parties and further the
wife who is unable to maintain herself cannot be asked to lead
the life as a destitute. While considering the maintenance
amount, the Court is required to take note of the fact that the
amount of maintenance should be such as she can live in
reasonable comfort considering her status and the life she was
used to live in her matrimonial house. Similarly, the amount
so fixed cannot be excessive.

(10) In the present case, the claim made by the respondents
is important. In para 5 of the application, it is mentioned as
under :-

”5…….bl eagxkbZ ds ;qx es vkosndtu dks de ls de 7000
:i;s ekgokj dh vko’;drk vius Hkj.k iks”k.k gsrq gS ftlesa vkosfndk
(4) CRR 1014/2015

,oa mlds iq ds jgus] [kkus ihus ,oa diMs vkfn ,oa vkosnd dzekad 2
ds vPNs ykyu iks”k.k ,oa mldh f’k{kk nh{kk djkus gsrq dqy feykdj
7000 Hkj.k iks”k.k ikus ds vf/kdkjh gSA ftls nsus es vukosnd iw.kZr%
l{ke gSA”

The relief clause is as under :-

”vkosndtu dks ekuuh; U;k;ky; tks mfpr ik;s bl Hkh”k.k
eagxkbZ es thou mi;ksxh vko’;drkvksa dh iwfrZ o Hkj.k iks”k.k ds
fy;s vkosndtu dks la;qDrr% ;k i`Fkd i`Fkd dqy 7000 :i;s
ekfld Hkj.k iks”k.k dh jkf’k vkosndtu dks vukosnd ls
fnyok;s tkus dh d`ik djsaA”
(11) Thus, it is clear that the respondents had claimed total
amount of Rs.7000/- per month. From the the relief clause
and the averment made in para 5 of the application, it cannot
be inferred that the respondents had demanded Rs. 7000/- for
each of the respondent. In the evidence, the respondent
no.1 had claimed Rs.8000/- per month for each of the
respondents.

(12) It is submitted by the Counsel for the applicant, that
when the respondents themselves had demanded/claimed
total amount of Rs.7000/- per month, then he cannot be
taken by surprise by awarding double of the said amount.

Although for ascertaining or fixing the amount of
maintenance, the status of the parties is one of the important
aspect, but where the claimants/applicants themselves had
limited their claim to a particular amount, then no
maintenance amount in excess of the same can be granted.
(13) As pointed out earlier, the respondents have claimed
total amount of Rs. 7000/- per month. The Counsel for the
respondents submitted that earlier, an amount of Rs. 500/-
per month was provided under Section 125 of Cr.P.C. However,
by State amendment, the State of Madhya Pradesh, enhanced
the amount of Rs. 500/- per month to Rs. 3000 per month.
Thereafter, by Central amendment, the cap of Rs. 500/- was
deleted. Thus, under these circumstances, the Court below
did not commit any mistake in awarding Rs.7000/- per month
to each of the respondent.

(14) Initially, there was a cap of Rs. 500/- in Section 125 of
Cr.P.C. However, the words “not exceeding Rs.500 in the
(5) CRR 1014/2015

whole” were omitted vide Central Act 50 of 2001 w.e.f 24-9-
2001. The State Govt. by Madhya Pradesh Act 10 of 1998, had
enhanced the amount of Rs.500/- per month to Rs.3000/- per
month, thereafter by Act No. 15 of 2004, the upper limit was
also omitted. The Supreme Court in the case of Manoj Yadav
vs. Pushpa reported in (2011) 14 SCC 398 has held as
under :-

”3. Respondent 1 by means of her criminal
revision applied for enhancement of the
maintenance. By the impugned judgment the
High Court has granted a sum of Rs 4000 per
month as maintenance with effect from 1-1-2009
to the Respondent 1 wife in this case. That order
has been challenged before us.

4. The learned counsel for the appellant
submitted that the amount which could be
granted as maintenance under Section 125 CrPC
in the State of Madhya Pradesh could at the
most be Rs 3000 in view of the amendment to
Section 125 CrPC by Madhya Pradesh Act 10 of
1998.

5. It appears that Section 125 CrPC has been
further amended in Madhya Pradesh by a
subsequent amendment by Madhya Pradesh Act
15 of 2004 which does not contain any upper
limit in the maintenance to be granted under
Section 125 CrPC and it is left to the discretion
of the Magistrate. Hence, there is no substance
in the submission of the learned counsel for the
appellant. Moreover, we are of the opinion that
after the amendment to Section 125 CrPC, which
is a Central Act, by the Code of Criminal
Procedure (Amendment) Act, 2001 which deleted
the words “not exceeding five hundred rupees in
the whole”, all State amendments to Section 125
CrPC by which a ceiling has been fixed to the
amount of maintenance to be awarded to the
wife have become invalid.”

(15) In the present case, the application under Section 125
of Cr.P.C. was filed in the year 2007 i.e., much after the upper
ceiling was deleted. Where the respondents had decided to
limit their claim to the extent of total amount of Rs. 7000/-
per month, then the application cannot be read to mean that
they had claimed Rs.7000/- per month for each of the
respondents. When the respondents themselves have claimed
(6) CRR 1014/2015

that they are in need of total amount of Rs. 7000 per month
for meeting the expenses, then the applicant cannot be taken
by surprise by awarding more than Rs. 7000/- per month. In
the present case, the Trial Court has awarded total amount of
Rs.14,000/- to the respondents by way of maintenance, which
is more than what was claimed by the respondents. Thus, in
absence of a prayer in that regard, award of maintenance
amount of Rs. 7000/- per month to each of the respondents
by the Trial Court is erroneous. The Trial Court could not have
awarded more than total amount of Rs. 7000/- per month.
(16) It is, next contended by the Counsel for the applicant,
that the Trial Court committed material illegality by awarding
maintenance amount from the date of application.
(17) In the present case, the application was filed on 6-1-
2007. From the order sheets it is clear that the applicant
could be served by publication and it took more than 1 and a
half years to serve the applicant. On 18-10-2011, an amount
of Rs. 2,500 was fixed by way of interim maintenance and the
said order was challenged by filing Criminal Revision which too
was dismissed by order dated 27-3-2012. Thereafter the case
was fixed for recording of evidence. It also appears that the
applicant did not pay the interim maintenance amount, and
therefore, by order dated 22-8-2014, the applicant was
directed to pay the arrears of interim maintenance and was
directed to remain present in the Court. Thereafter, on 14-10-
2014, an amount of Rs. 5000 was paid to the respondent no.1
and a prayer was made that the applicant would pay the
remaining maintenance in each installments of Rs. 10000/-.
On 24-1-2015, the respondent no.1 and her witnesses were
present but the matter was got adjourned by the applicant.
With great difficulties, the applicant cross examined the
respondent no.1 and her witnesses on 21-4-2015, on which
date, the respondents closed their evidence. Thus, it is clear
that all sorts of delaying tactics were adopted by the applicant
to keep the matter pending. Even the interim maintenance
amount was not paid.

(7) CRR 1014/2015

(18) The Supreme Court in the case of Jaiminiben
Hirenbahi Vyas Vs.Hirenbhai Rameshchandra Vyas

reported in (2015) 2 SCC 385 it has been held as under :-

5. Section 125 CrPC, therefore, impliedly
requires the court to consider making the order
for maintenance effective from either of the two
dates, having regard to the relevant facts. For
good reason, evident from its order, the court
may choose either date. It is neither appropriate
nor desirable that a court simply states that
maintenance should be paid from either the date
of the order or the date of the application in
matters of maintenance. Thus, as per Section
354(6) CrPC, the court should record reasons in
support of the order passed by it, in both
eventualities. The purpose of the provision is to
prevent vagrancy and destitution in society and
the court must apply its mind to the options
having regard to the facts of the particular case.

6. In Shail Kumari Devi vs. Krishan Bhagwan
Pathak (2008) 9 SCC 632 this Court dealt with
the question as to from which date a Magistrate
may order payment of maintenance to wife,
children or parents. In Shail Kumari Devi (supra)
this Court considered a catena of decisions by
the various High Courts, before arriving at the
conclusion that it was incorrect to hold that, as a
normal rule, the Magistrate should grant
maintenance only from the date of the order and
not from the date of the application for
maintenance. It is, therefore, open to the
Magistrate to award maintenance from the date
of application. The Court held, and we agree,
that if the Magistrate intends to pass such an
order, he is required to record reasons in support
of such order. Thus, such maintenance can be
awarded from the date of the order, or, if so
ordered, from the date of the application for
maintenance, as the case may be. For awarding
maintenance from the date of the application,
express order is necessary.”
The Supreme Court in the case of Bhuwan Mohan
Singh Vs. Meena reported in (2015) 6 SCC 353 has held as
under :-

”16. In the present case, as we find, there was
enormous delay in disposal of the proceeding
under Section 125 of the Code and most of the
time the husband had taken adjournments and
sometimes the court dealt with the matter
showing total laxity. The wife sustained herself
(8) CRR 1014/2015

as far as she could in that state for a period of
nine years. The circumstances, in our considered
opinion, required grant of maintenance from the
date of application and by so granting the High
Court has not committed any legal infirmity.

Hence, we concur with the order of the High
Court.”

(19) Considering the totality of the Circumstances, this Court
is of the view that the Trial Court did not commit any mistake
in awarding maintenance amount from the date of the
application i.e., 6-1-2007.

(20) However, this Court cannot ignore one disturbing fact in
the matter. During the pendency of the application filed under
Section 125 of Cr.P.C., it was alleged that the applicant has
remarried and accordingly he was also facing trial for offence
under Section 494 of Cr.P.C. Further, this Court by interim
order dated 1-3-2016, had directed the applicant to pay Rs.
7000 per month to the respondents. However, it appears that
the applicant did not pay the maintenance amount. On 1-4-
2016, the Counsel for the applicant had sought time to
produce the receipt depositing the maintenance amount.
Again, a statement was made by the Counsel for the
respondents on 8-11-2016 that the applicant is not regularly
depositing the maintenance amount. On 30-11-2016, the
applicant sought time to produce the receipt. Thereafter, this
Court by order dated 9-1-2016, had directed the applicant to
deposit the entire arrears of maintenance within a period of
one week and to submit the receipts. On 9-1-017, as
statement was made by the Counsel for the respondents that
the applicant has not paid the maintenance amount and after
calculating the maintenance at the rate of Rs. 7000/- per
month, a total amount of Rs.7,84,000 is payable. Again, time
was sought to produce the receipts. Again, by order dated 30-
6-2017, the applicant had sought time to clear the dues.
However, no receipts have been filed by the applicant. Thus,
it is clear that in spite of the clear and repeated directions by
this Court, the applicant has not paid the arrears of
maintenance amount. Thus, it is directed that in case,
(9) CRR 1014/2015

proceedings for recovery of the arrears of maintenance
amount are initiated, then the same shall be decided by the
Court below without considering the period of limitation.
(21) Accordingly, this application is partially allowed. Instead
of maintenance amount of Rs.7000/- per month to each of the
respondents, it is directed that the respondent no.1 shall be
entitled for Rs.5,000/- per month and the respondent no.2
shall be entitled for Rs. 2,000/- per month.
(22) At this stage, the Counsel for the respondents seek
permission to file an application under Section 127 of Cr.P.C.
seeking enhancement of maintenance amount considering the
hike in price of the goods of daily need as well as the
educational expenses. As an application under Section 127 of
Cr.P.C. can always be filed by any of the party for alteration of
maintenance amount, therefore, no fresh permission is
required.

(23) As the applicant has not paid the maintenance amount
regularly, therefore, the cost of this litigation is fixed at Rs.
10,000/- which shall also be liable to be paid by the applicant
to the respondents.

(24) With aforesaid modification in the order dated 1-9-2015
passed by the Family Court, Ashoknagar, the Revision
succeeds and is partially allowed.

(G.S. Ahluwalia)
Judge
29/08/2017

*MKB*

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