Rajasthan High Court
Smt. Nirmala on 27 May, 1996
Criminal Misc. Revision Petition No. 409 of 1995
Equivalent citations: II (1996) DMC 309, 1996 WLC Raj UC 209, 1996 (1) WLN 661
Bench: M Khan
JUDGMENT M.A.A. Khan, J.
1. This Composite Petition Under Section 397 of a Code of Criminal Procedure, 1973 (for brief ‘the Cr.P.C) is destined opposite a total sequence antiquated Aug 8, 1995 whereby a schooled Judge, Family Court during Ajmer motionless non-petitioner’s Criminal Misc. Application No. 155 of 1991 Under Section 125, Cr.P.C. and 3 applications of a postulant being Criminal Misc. Appli- cation No. 208 of 1994 Under Sections 128, Cr. P.C., 209 of 1994 Under Section 127, Cr. P.C. and 333 of 1995 Under Section 125(3), Cr. P.C.
2. Facts, applicable and sufficient to dispose all a points of debate lifted yet this petition are these :
3. The parties to this petition are Hindu by faith and religion. The postulant resides during Delhi and a non-petitioner during Beawar, District Ajmer, Rajasthan. They were married during Beawar on Nov 14, 1960. The nuptials gave them dual children of whom one, innate on Oct 11, 1970, is alive. Since she has turn vital she has ceased to accept upkeep stipend from a postulant and there is no brawl between a parties about that
4. It appears that differences arose between a parties and their matrimony was dissolved by a Civil Court during Delhi on Jan 17, 1977 on a petition filed Under Section 13 of a Hindu Marriage Act, 1956 by a petitioner. Appeal, being FAO No. 32/77 filed by a non-petitioner in a Delhi High Court opposite a sequence of a Civil Court, was also discharged on Aug 9, 1977. The postulant remarried on May 18, 1981 and is settled to be vital happily with his second mom and grown adult children.
5. On Jun 3, 1989 a non-petitioner filed an focus Under Section 125, Cr. P.C. before a Family Court during Ajmer perfectionist upkeep for herself and her teenager daughter from a petitioner. Allowing such focus on Oct 26, 1991 partly, a Family Court systematic a postulant to compensate to a non- postulant a monthly stipend for upkeep @ Rs. 400/- from Jun 3, 1989 i.e. from a date of a application. The Court offer destined that a amount, if any, perceived by a non-petitioner from a postulant underneath any sequence of a Courts during Delhi by ensue of upkeep stipend shall be deducted from a volume payable underneath a sequence upheld Under Section 125, Cr.P.C. The postulant is pronounced to have done a remuneration of Rs. 2,400/- usually towards a upkeep stipend of a non-petitioner upto a date of display of a benefaction focus Under Section 125(3) by a non-petitioner before a Family Court, Ajmer.
6. On Dec 3, 1991 a non-petitioner altered an focus Under Section 125(3), Cr. P.C. before a Family Court, Ajmer perfectionist a arrear of upkeep stipend from a postulant from 26.10.91 as per sequence of a Family Court of a even date as also upkeep stipend @ Rs. 400/- p.m. during a pendency of focus and prayed for liberation and realization thereof by a connection and sale of mobile and determined properties belonging to a postulant and/or connection of his salary. In box of non-recovery of a arrear of a upkeep stipend by those modes request for detain and apprehension of a postulant in sequence to make a remuneration was also made.
7. The petitioner, besides hostile a focus of a non-petitioner Under Section 125(3), Cr.P.C. as aforementioned, altered 3 applications, as mentioned above. The common pleas lifted by a postulant in antithesis to non- petitioner’s focus as also by his aforementioned 3 applications were that a Family Court during Ajmer had no territorial and/or financial office in a matter, that a explain for balance of upkeep stipend was barred by limitation, that liberation of a balance of a upkeep stipend can't be effected by connection of petitioner’s income and that a non-petitioner has ceased to be his mom as a daughter vital with her had combined a surname of ‘Jotwani’ to her name. The schooled Judge, Family Court, by his impugned visualisation and order, discharged all a objections of a postulant save that per connection of his salary, and destined that a balance of a upkeep stipend be realised by connection and sale of mobile properties of a postulant and in box a volume due from him could not be so recovered and realised a postulant be arrested and constructed before it.
8. Raising roughly a same objections, as were lifted by a postulant before a schooled Judge, it was urged by his schooled Counsel that given a postulant lived during Delhi no Court in Rajasthan had office to perform and hear a focus Under Section 125(3), Cr. P.C. This evidence is totally misconceived and deserves to be discharged yet detriment of any time.
9. Not usually that a sequence antiquated 26.10.1991, whereby a focus of a non-petitioner for extend of upkeep Under Section 125 Cr. P.C. was authorised and wherefrom a means of movement for a one focus by a postulant Under Section 125(3) and 3 applications by a postulant himself arose, was upheld by a Family Court during Ajmer, as averred in para 5 of a Memo of appeal, yet also that no such conflict was never lifted by a postulant possibly before a Judge, Family Court in a march of conference of a strange petition Under Section 125 Cr.P.C. or before this Court in appeal/revision elite by a postulant opposite a sequence upheld by a Family Court on 26.10.91. Apart from this tangible position a authorised position is transparent clear from a denunciation of Section 126(1) Cr.P.C. that reads as under: “Section 120(1). Procedure-Proceedings Under Section 125 might be taken opposite any chairman in any district. (a) where he is, or (b) where he or his mom resides, or (c) where he final resided with his wife, as a box might be, with a mom of a deceptive child.
10. The difference “his wife” occurring in a denunciation of Clause (b) of Sub- territory (1) of Section 126 were not there in a denunciation of aged Section 488 of a Old Code of Criminal Procedure. The change brought about in a denunciation of a analogous Section of 125 of a New Code of Criminal Procedure clearly expresses a legislative goal to consult a office of conference a matters descending within a reach of Section 125 on a Court of a District where a mom resides. This ensue of a Legislature takes into comment a problems of a neglected or forlorn mom and her means to feed a lawsuit with her husband. I, therefore, reason that a Family Court during Ajmer did have a office to perform and confirm a benefaction matter. The evidence lifted is totally whimsical and groundless and is deserted accordingly.
11. It was subsequent urged by Mr. Avasthi that a explain for realization of a balance of rent, as modernized by a non-petitioner, was barred by limitation. In this interest anxiety was done to a initial portion to Sub-section (3) of Section 125, Cr. P.C., we find this evidence too yet any merits whatsoever. The applicable partial of Section 125(3) reads as underneath : “125 (3). If any chairman so systematic fails yet sufficient means to approve with a order, any such Magistrate may, for any crack of a order, emanate a aver for levying a volume due in a demeanour for levying fines, and may, judgment such person, for a whole or any partial of any month’s stipend remaining delinquent after a execution of a warrant, seizure for a tenure that might extent, to one month or until payment, if earlier made. Provided that no aver shall be released for a liberation of any volume due underneath this territory unless focus be done to a Court to levy such volume within a duration of one year from a date on that it became due.”
12. A unclothed reading of a initial portion to Section 125(3) shows that for liberation of a volume due underneath an sequence upheld Under Section 125(1) an focus is compulsory to be done within a duration of one year from a date on that such volume has depressed due. The duration of reduction of one year is this to embark from a date on that a volume of upkeep becomes due. The accrual of means of movement in foster of a applicant for liberation of a volume due would indispensably count on a sequence extenuation a upkeep allowance. Until and unless an sequence extenuation upkeep stipend has been done in foster of a chairman no doubt of liberation of any volume due would, therefore, arise. The countenance “within a duration of one year from a date on that it became due” used in a denunciation of a initial portion to Section 125(3) pre- supposes a existence of an sequence Under Section 125(3) and a duration of reduction of one year is to embark from a date of such sequence for a liberation of a volume of upkeep postulated underneath such order. The volume postulated underneath such sequence might describe to a balance of a upkeep stipend that got amassed during a pendency of a focus in a Court. The supplies contained in Sub-section (2) of Section 125 take caring of that situation. Section 125(2) provides that “such stipend shall be payable from a date of a order, or, if so ordered, from a date of a focus for maintenance.” “The option given to a Magistrate to make his order, extenuation maintenance, effective from a date of a focus for upkeep shows that time consumed in a ordering of a focus might not be attributed to a applicant in a contribution and resources of a given case. The typical sequence is that a sequence done by a Magistrate would turn effective from a date on that it was made. However, it might be done effective retrospectively from a date of a focus in that box a Magistrate is compulsory to pass a specific order. In a benefaction box a sequence Under Section 125(1) was done by a Magistrate/Family Court on 26.10.1991. It was done effective from 3.6.89 i.e., a date of a focus for maintenance. The focus Under Section 125(3) for liberation of a volume due was filed on 3.12.91. The focus was so good within a prescribed time of one year as contem- plated by a portion to Section 125(3), Cr.P.C.
13. On going by a request Clause as contained in non-petitioner’s focus Under Section 125(3), it is collected that she had not usually prayed for a liberation of a volume due underneath a sequence upheld Under Section 125(1), Cr.P.C. yet also for a volume that would tumble due during a pendency of a pronounced application. The schooled Judge, Family Court, has not denied or deserted any partial of a service as claimed by a wife-applicant. A doubt was lifted that a impugned sequence should not cover a volume of upkeep that fell due during a pendency of a focus Under Section 125(3), Cr.P.C.
14. The supplies contained in Sections 125 to 128 of Chapter IX of a Code of Criminal Procedure, 1973 are by ensue of magnitude of amicable probity descending within a reach of Articles 15(3) and 39 of a Constitution of India enacted to strengthen a weaker sections like neglected wife, children and relatives and they yield a physical guarantee irrespective of a personal laws of a parties. The intent underlying these supplies is to make a male to perform a dignified obligation, that he owes to a multitude in a socio-economic set-up and religon -cultural heritage, in honour of his wife, children and relatives so that they should not be driven to a life of vagrancy, filth and crime for their subsistence. These supplies consult a inexhaustible office on a orthodox functionary and, there- fore, a broader notice and appreciation of a contribution contingency foreordain a judgments in such cases. Therefore, in a interpretation of a denunciation of these supplies a amicable purpose that they are dictated to offer and a merciful outlook, that a clarity and clarification of a difference used in a denunciation of these supplies acknowledge of should not be abandoned and ignored.
15. In a intrigue of Section 125 it is substantial that by trait of a option conferred by Sub-Section (2) thereof an sequence of extenuation upkeep might be done effective from a date of a application. Investment of such energy in a Magistrate or Judge, Family Court, should offer as a beam to know and conclude a range of a First Proviso to Section 125(3) that requires an focus to be done for a liberation of a volume due underneath Section 125(1), Cr.P.C. An sequence upheld underneath Section 125(1) can't usually be done retrospective in, outcome by sportive a option vested in a Magistrate/Judge by Sub- territory (2) of Section 125 yet it also dictated to sojourn in force until and unless a same is altered, cancelled or sundry underneath Section 127, Cr. P.C. Such being a inlet of a sequence upheld underneath Section 125(1) it might be hold that while creation an focus underneath Section 125(3), Cr.P.C. a applicant might not usually ask for a liberation of a volume due during a time of creation such focus yet might also urge to a Court to redeem or make liberation of such volume also that falls due during a pendency of a focus underneath Section 125(3). The requirement or guilt to compensate such volume is already contained in a sequence upheld underneath Section 125(1) that is to sojourn in force until cancelled. It, therefore, logically follows that a volume of upkeep that falls due during a pendency of a focus underneath Section 125(3) might also be enclosed in a volume due during a time of flitting a sequence for liberation thereof. In other words, during a time of flitting an sequence underneath Section 125(3) for arising a aver for levying a volume due a whole of a volume comprising of a volume creatively claimed in a focus and a volume depressed due upto a month of arising a aver underneath Section 125(3) might be recovered. In my opinion a interpretation of a difference “issue a aver for levying a volume due” done in a demeanour settled above would not usually be in consent with a suggestion of Sub-sections (1) and (2) of Section 125 yet would also do divided with a avoidable prerequisite of presenting focus for liberation of a “amount’ due for any 12 months even during a pendency of an focus underneath Section 125(3), Cr.P.C. By such interpretation of a pronounced difference no mistreat is expected to be caused to a chairman probable to compensate a volume of upkeep as it would in no ensue supplement to or boost his guilt or requirement underneath Section 125(1) and instead would do divided with a multiplicity of lawsuit and so would be profitable to a parties to a focus underneath Section 125(3) as good as a Court concerned. The conflict lifted by a schooled Counsel is, therefore, over-ruled.
16. Lastly, it was urged by a schooled Counsel for a father postulant that a respondent has ceased to be his ‘wife’ within a clarification of a tenure used in a denunciation of Section 125(1)(a) as their daughter vital with a respondent has altered her surname from ‘Purdashani’to’Jotwani’. This argument, on a face of it, is totally misconceived and deserves to be out-rightly deserted yet most comments.
17. The tenure ‘wife’ has been used in denunciation of Section 125(1) in a specific clarity and meaning. Explanation (b) next a portion to Sub-Section (1) of Section 125 defines a tenure ‘wife’ as used in Chapter IX of a Code of Criminal Procedure 1973, and says that ‘wife’ includes a lady who has been divorced by, or has performed a divorce from her father and has not remarried. This clarification clearly shows that a divorce does not impact a marital standing of a lady and she does not stop to be a mom of a person, she had been married to, for a functions of Chapter IX of a Code of Criminal Procedure 1973 compartment she remarries after a divorce. The box of Mohd. Ahmed Khan, 1985 Cr. L.J. 875 (SC), (though a outcome of that preference of a Supreme Court has given been nullified in a cases of Muslim Women by a Muslim Women (Protection of Rights on Divorce) Act, 1986) might be referred to in this behalf. In a benefaction box it is not a box of a father postulant that a respondent has remarried after a direct of divorce performed by a postulant opposite her from a Delhi Civil Court. The respondent, therefore, continues to be a mom of a postulant notwithstanding her carrying been divorced by a postulant as per a direct of divorce upheld by a Delhi Civil Court.
18. Coming to a other prong of a evidence of a schooled Counsel for a postulant it is not his box that a respondent has in any ensue brought about any change in her celebrity or marital status, as explained above. It is not purported that a respondent has renounced her religion, or has been deprived of her standing so as to entail a damage of her rights and skill and dispossess her of her right of estate from a petitioner. Even if that had been so a consequences issuing from renunciation, ostracism or damage would stop to be enforced as law after a entrance into force of a Caste Disabilities Removal Act, 1850. That apart, a right of a Hindu mom to apart upkeep and chateau was regulated by a Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 that now stands repealed by Section 29 of a Hindu Adoption and Maintenance Act, 1956 Section 18 whereof lays down that a wife, possibly married before or after derivation of a Act, is entitled to be confirmed by her father during her lifetime unless she is indecent or has ceased to be a Hindu by acclimatisation to another religion, that is not purported to be a position in a benefaction case. This evidence too is rejected.
19. The final evidence in a array was that a change of a surname from ‘Purdashini’ to ‘Jotwani’ by a daughter o of a parties contingency be review as a change in a celebrity and standing of a respondent herself. This evidence might be deserted for some-more than one reasons.
20. Name is a word by that particular person, animal, place or thing is oral of or is called. Names are capricious labels given to existent or non-existing objects, articles, places, persons or things. It is used to brand a person, place or thing etc. and in that clarity of a matter is simply a symbol of identification. Its change.in propinquity to that person, place or thing etc. does not move about any change in a existence of a intent endangered or a celebrity of a particular chairman concerned. It matters not possibly a chairman is called by a name of Ram or Rahim insofar as a particular celebrity of that chairman is concerned. The small change of name does not impact a civil, authorised inherent rights of that person. It does not impact his amicable standing either, as a member of a multitude when a change of a name does not move about any change in a particular celebrity of a chairman himself, apparently such a change can have no fathomable outcome on a celebrity of another chairman and a charge of that another chairman with other member of a society. A surname is simply an charge to a name of a chairman and is routinely used to imply or tell his sect, sub-Sect, expel or sub-caste and is totally irrelevant to impact a civil, authorised or inherent rights of a chairman unless a law privately provides to a contrary.
21. In a benefaction box a daughter of a parties has given turn major. Change of Surname by her of her possess or even with a advice, efforts, instructions or even orders from a respondent does conjunction impact her particular celebrity nor that of a respondent. Even if a surname in a box of a daughter indicates a change in her amicable standing such change does not and can't move about any change in a amicable standing of her mom i.e. a respondent utterly in a charge of her mom with her father i.e. a petitioner.
22. The end of a foregone contention is that not usually totally false, resentful and irrelevant objections, were lifted by a husband-petitioner opposite respondents’ focus underneath Section 125(3) yet also that a record were un-necessarily double and enlarged by relocating 3 apart applications. The schooled Judge, Family Court, Ajmer has righteously celebrated that a objections lifted and a 3 applications altered by a postulant were utterly malafide and baseless. The hearing Judge was, therefore, fit in awarding costs to a respondents. In this Court too a postulant behaved in a same demeanour yet profitable a taste to a respondent for her maintenance. Time is maybe developed to daunt such whimsical and mala fidely badgering lawsuit by awarding fitting costs to a tormented neglected wife.
23. In perspective of a above, this combination rider petition is hereby discharged with costs of Rs. 3,000/- to a respondent. The schooled hearing Judge shall ensue to redeem a upkeep stipend due and a costs of this lawsuit from a postulant in suitability with law.