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Deepak Panchal vs Smt.Bhawna Panchal And Another on 24 January, 2018

CRM-M Nos.45337 45447 of 2017 1

245 IN THE HIGH COURT OF PUNJAB HARYANA
AT CHANDIGARH

Date of decision : 24.01.2018
1. CRM-M-45337-2017

Deepak Panchal
……Petitioner(s)

Versus

Smt. Bhawna Panchal and another
…Respondent(s)

2. CRM-M-45447-2017

Deepak Panchal
……Petitioner(s)

Versus

Smt. Bhawna Panchal and another
…Respondent(s)

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. J.S. Duhan, Advocate
for the petitioner(s).

Mr. Vivek Goyal, Advocate
for the respondents.

ANITA CHAUDHRY, J.

The petitioner has placed on record a schedule, showing the

detail of payments. A copy of it has also been supplied to the other side.

Learned counsel for the respondents states that there is a

mistake in the calculations. The petitioner has also placed on record the

orders passed in various petitions in the litigation pending between the

parties.

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CRM-M Nos.45337 45447 of 2017 2

The petitioner has challenged the order dated 16.11.2017

passed by Chief Judicial Magistrate, Kurukshetra in the execution vide

which the petitioner was taken into custody for non-payment of

maintenance allowance under Section 125 Cr.P.C.

The facts are not disputed. The parties were married in the year

2006 and a child was born to them. In the year 2009, the wife filed a petition

under Section 125 Cr.P.C. The husband appeared and filed the written

statement and thereafter no one appeared and he was proceeded against

ex parte and five years later, the petition was allowed and 1/3rd share of his

salary was ordered to be paid to both the applicants.

The wife filed an Execution Petition seeking recovery of the

amount and Executing Court noted that the husband had paid only

Rs.75,000/- out of the balance amount of over Rs.7.5 lacs and also noted his

conduct and directed him to be sent to civil imprisonment for non-

compliance. The husband was committed to civil imprisonment till

14.12.2017. The order was made by the Chief Judicial Magistrate on

16.11.2017. The petitioner filed this petition and the order passed by the

Coordinate Bench reads as under:-

“Learned counsel for the petitioner contends that
petitioner is presently lodged in Kurukshetra jail for non
payment of maintenance allowance. He further submits
that petitioner does not have sufficient funds. However, to
show his bona fide, he is ready and willing to pay 75% of
the total amount within a period of one week.

Notice of motion for 7.12.2017.

Process dasti as well.

A photocopy of this order be placed on the
connected file.”

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CRM-M Nos.45337 45447 of 2017 3

On the adjourned hearing, another counsel appeared and

filed the power of attorney and stated that earlier counsel had made a

statement which was against the instructions and stated that there was

chances of amicable settlement and he handed over two drafts of

Rs.50,000/- each. It was prayed that if the petitioner remained inside it

would be difficult for him to arrange the payment and had sought interim

bail. Further order was made to show his bona fide that he would also pay

Rs.1 lac on or before the next date of hearing.

Another petition, meanwhile, had been filed bearing CRM-

M-45447-2017, which was ordered to be taken up along with this case.

Interim bail was allowed and the case was adjourned to 08.01.2018.

The petitioner moved an application seeking modification of

the order and for extension of bail for three more days as there were

directions to him to surrender before the Jail on 06.01.2018, since the

interim bail was granted for four weeks to enable the petitioner to make

the payment.

On 11.01.2018, two drafts of Rs.50,000/- each were handed

over to the counsel for the respondents and the case was listed for today

for final arguments.

The petitioner was also called for today. He states that they

filed an application for setting aside the ex parte order and a sum of over

Rs.9,40,000/- was due and he would be able to clear the same in

instalments within three years. Counsel for the petitioner further states

that the petitioner was ready even for conciliation and stay with the

respondents. Counsel had pointed out to the offer made earlier before the

Courts below and the response of his wife. He had referred to Annexure

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CRM-M Nos.45337 45447 of 2017 4

P-9 wherein the wife had stated that she was not interested for any

reconciliation and was not interested in giving divorce.

The counsel was asked to make his submission on the merits

of the petition. The counsel states that an application has been filed for

setting aside the ex parte order, till that application is decided, the matter

may be stayed. It was urged that today they have given the details of

payment which is around 7.35 lacs. It was urged that on coming to know

of the ex parte order, they had filed initially a revision which was

withdrawn and direction was sought to file an application for setting aside

the ex parte judgment and the matter is pending and the petitioner had

paid the amount ordered in the petition filed under Section 9 of the Hindu

Marriage Act. The counsel had urged that the petitioner was not shirking

from his responsibility and was only seeking time and at present he was

not earning and the Court below had taken a harsh view by sending the

petitioner in custody for non-payment.

Counsel for the respondents urges that the parties have been

litigating for a number of years and it has been clarified earlier that the

payment which was made in the petition filed under Section 9 of the

Hindu Marriage Act was not to be counted and, therefore, on the last date

the petitioner was asked to give the details of the payments made in the

petition filed under Section 125 Cr.P.C. and as per their own admission a

sum of over Rs.9 lacs is due. The counsel further submits that the total

calculation given in the schedule today is wrong and the total amount

paid, according to the petitioner is Rs.7,11,000/-. Counsel further submits

that the petitioner cannot approach this Court for stay and it is the

Executing Court who could have stayed the proceedings and the

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CRM-M Nos.45337 45447 of 2017 5

petitioner has to show that the order passed by the Court below was

illegal.

A petition under Section 125 Cr.P.C. had been filed seeking

maintenance in 2008. Same was allowed ex parte in 2014. Since the

payment was not made, the wife approached the Executing Court. The

Executing Court issued conditional warrants but the husband failed to

appear nor paid the amount. The husband then came forward for

compromise but compromise could not be effected. The Executing Court

then again gave time to the husband to make the payment but he failed to

appear. All these facts are noted in the impugned order. Having exhausted

all the remedies, the wife then filed an application for sending the

husband to civil imprisonment as he was a chronic defaulter and the

amount due was touching Rs.8 lacs. The Executing Court sent the

petitioner to civil imprisonment on account of non-payment of the

maintenance. The petitioner was given an opportunity to clear all the

arrears, he has still not cleared them.

There is no illegality in the order. Petition is dismissed.

Petitioner would surrender before the Executing Court within

a period of one week to undergo the remaining part of custody.

Both the petitions are dismissed.

January 24, 2018 (ANITA CHAUDHRY)
ps-I JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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