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How to drag and delay Maintenance even married another

Rajasthan High Court

Vasudev Pardasani
vs
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 the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C) is directed against the combined order dated August 8, 1995 whereby the learned Judge, Family Court at Ajmer decided non-petitioner’s Criminal Misc. Application No. 155 of 1991 Under Section 125, Cr.P.C. and three applications of the petitioner 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, relevant and sufficient to dispose all the points of controversy raised though this petition are these :

3. The parties to this petition are Hindu by faith and religion. The petitioner resides at Delhi and the non-petitioner at Beawar, District Ajmer, Rajasthan. They were married at Beawar on November 14, 1960. The wedlock gave them two children of whom one, born on October 11, 1970, is alive. Since she has become major she has ceased to receive maintenance allowance from the petitioner and there is no dispute between the parties about that

4. It appears that differences arose between the parties and their marriage was dissolved by the Civil Court at Delhi on January 17, 1977 on a petition filed Under Section 13 of the Hindu Marriage Act, 1956 by the petitioner. Appeal, being FAO No. 32/77 filed by the non-petitioner in the Delhi High Court against the order of the Civil Court, was also dismissed on August 9, 1977. The petitioner remarried on May 18, 1981 and is stated to be living happily with his second wife and grown up children.

5. On June 3, 1989 the non-petitioner filed an application Under Section 125, Cr. P.C. before the Family Court at Ajmer demanding maintenance for herself and her minor daughter from the petitioner. Allowing such application on October 26, 1991 partly, the Family Court ordered the petitioner to pay to the non- petitioner a monthly allowance for maintenance @ Rs. 400/- from June 3, 1989 i.e. from the date of the application. The Court further directed that the amount, if any, received by the non-petitioner from the petitioner under any order of the Courts at Delhi by way of maintenance allowance shall be deducted from the amount payable under the order passed Under Section 125, Cr.P.C. The petitioner is said to have made a payment of Rs. 2,400/- only towards the maintenance allowance of the non-petitioner upto the date of presentation of the present application Under Section 125(3) by the non-petitioner before the Family Court, Ajmer.

6. On December 3, 1991 the non-petitioner moved an application Under Section 125(3), Cr. P.C. before the Family Court, Ajmer demanding the arrear of maintenance allowance from the petitioner from 26.10.91 as per order of the Family Court of the even date as also maintenance allowance @ Rs. 400/- p.m. during the pendency of application and prayed for recovery and realisation thereof through the attachment and sale of movable and immovable properties belonging to the petitioner and/or attachment of his salary. In case of non-recovery of the arrear of the maintenance allowance through those modes prayer for arrest and detention of the petitioner in order to enforce the payment was also made.

7. The petitioner, besides opposing the application of the non-petitioner Under Section 125(3), Cr.P.C. as aforementioned, moved three applications, as mentioned above. The common pleas raised by the petitioner in opposition to non- petitioner’s application as also through his aforementioned three applications were that the Family Court at Ajmer had no territorial and/or pecuniary jurisdiction in the matter, that the claim for arrears of maintenance allowance was barred by limitation, that recovery of the arrears of the maintenance allowance cannot be effected through attachment of petitioner’s salary and that the non-petitioner has ceased to be his wife as the daughter living with her had added the surname of ‘Jotwani’ to her name. The learned Judge, Family Court, by his impugned judgment and order, dismissed all the objections of the petitioner save that regarding attachment of his salary, and directed that the arrears of the maintenance allowance be realised through attachment and sale of movable properties of the petitioner and in case the amount due from him could not be so recovered and realised the petitioner be arrested and produced before it.

8. Raising almost the same objections, as were raised by the petitioner before the learned Judge, it was urged by his learned Counsel that since the petitioner lived at Delhi no Court in Rajasthan had jurisdiction to entertain and hear the application Under Section 125(3), Cr. P.C. This argument is totally misconceived and deserves to be dismissed without loss of any time.

9. Not only that the order dated 26.10.1991, whereby the application of the non-petitioner for grant of maintenance Under Section 125 Cr. P.C. was allowed and wherefrom the cause of action for the one application by the petitioner Under Section 125(3) and three applications by the petitioner himself arose, was passed by the Family Court at Ajmer, as averred in para 5 of the Memo of appeal, but also that no such objection was never raised by the petitioner either before the Judge, Family Court in the course of hearing of the original petition Under Section 125 Cr.P.C. or before this Court in appeal/revision preferred by the petitioner against the order passed by the Family Court on 26.10.91. Apart from this actual position the legal position is crystal clear from the language of Section 126(1) Cr.P.C. which reads as under: “Section 120(1). Procedure-Proceedings Under Section 125 may be taken against any person in any district. (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, as the case may be, with the mother of the illegitimate child.

10. The words “his wife” occurring in the language of Clause (b) of Sub- section (1) of Section 126 were not there in the language of old Section 488 of the Old Code of Criminal Procedure. The change brought about in the language of the corresponding Section of 125 of the New Code of Criminal Procedure clearly expresses the legislative intention to confer the jurisdiction of hearing the matters falling within the purview of Section 125 upon the Court of the District where the wife resides. This approach of the Legislature takes into account the difficulties of the neglected or deserted wife and her means to feed the litigation with her husband. I, therefore, hold that the Family Court at Ajmer did have the jurisdiction to entertain and decide the present matter. The argument raised is totally frivolous and baseless and is rejected accordingly.

11. It was next urged by Mr. Avasthi that the claim for realisation of the arrears of rent, as advanced by the non-petitioner, was barred by limitation. In this behalf reference was made to the first proviso to Sub-section (3) of Section 125, Cr. P.C., I find this argument too without any merits whatsoever. The relevant part of Section 125(3) reads as under : “125 (3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner for levying fines, and may, sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, imprisonment for a term which may extent, to one month or until payment, if sooner made. Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.”

12. A bare reading of the first proviso to Section 125(3) shows that for recovery of the amount due under an order passed Under Section 125(1) an application is required to be made within a period of one year from the date on which such amount has fallen due. The period of limitation of one year is this to commence from the date on which the amount of maintenance becomes due. The accrual of cause of action in favour of the applicant for recovery of the amount due would necessarily depend upon the order granting the maintenance allowance. Until and unless an order granting maintenance allowance has been made in favour of a person no question of recovery of any amount due would, therefore, arise. The expression “within a period of one year from the date on which it became due” used in the language of the first proviso to Section 125(3) pre- supposes the existence of an order Under Section 125(3) and the period of limitation of one year is to commence from the date of such order for the recovery of the amount of maintenance granted under such order. The amount granted under such order may relate to the arrears of the maintenance allowance which got accumulated during the pendency of the application in the Court. The provisions contained in Sub-section (2) of Section 125 take care of that situation. Section 125(2) provides that “such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.” “The discretion given to the Magistrate to make his order, granting maintenance, effective from the date of the application for maintenance shows that time consumed in the disposal of the application may not be attributed to the applicant in the facts and circumstances of a given case. The ordinary rule is that the order made by the Magistrate would become effective from the date on which it was made. However, it may be made effective retrospectively from the date of the application in which case the Magistrate is required to pass a specific order. In the instant case the order Under Section 125(1) was made by the Magistrate/Family Court on 26.10.1991. It was made effective from 3.6.89 i.e., the date of the application for maintenance. The application Under Section 125(3) for recovery of the amount due was filed on 3.12.91. The application was thus well within the prescribed time of one year as contem- plated by the proviso to Section 125(3), Cr.P.C.

13. On going through the prayer Clause as contained in non-petitioner’s application Under Section 125(3), it is gathered that she had not only prayed for the recovery of the amount due under the order passed Under Section 125(1), Cr.P.C. but also for the amount which would fall due during the pendency of the said application. The learned Judge, Family Court, has not denied or rejected any part of the relief as claimed by the wife-applicant. A question was raised that the impugned order should not cover the amount of maintenance which fell due during the pendency of the application Under Section 125(3), Cr.P.C.

14. The provisions contained in Sections 125 to 128 of Chapter IX of the Code of Criminal Procedure, 1973 are by way of measure of social justice falling within the purview of Articles 15(3) and 39 of the Constitution of India enacted to protect the weaker sections like neglected wife, children and parents and they provide a secular safeguard irrespective of the personal laws of the parties. The object underlying these provisions is to compel a man to perform the moral obligation, which he owes to the society in our socio-economic set-up and religon -cultural heritage, in respect of his wife, children and parents so that they should not be driven to a life of vagrancy, immorality and crime for their subsistence. These provisions confer a generous jurisdiction on the statutory functionary and, there- fore, a broader perception and appreciation of the facts must dictate the judgments in such cases. Therefore, in the interpretation of the language of these provisions the social purpose which they are intended to serve and a compassionate outlook, which the sense and meaning of the words used in the language of these provisions admit of should not be overlooked and ignored.

15. In the scheme of Section 125 it is implicit that by virtue of the discretion conferred by Sub-Section (2) thereof an order of granting maintenance may be made effective from the date of the application. Investment of such power in the Magistrate or Judge, Family Court, should serve as a guide to understand and appreciate the scope of the First Proviso to Section 125(3) which requires an application to be made for the recovery of the amount due under Section 125(1), Cr.P.C. An order passed under Section 125(1) cannot only be made retrospective in, effect by exercising the discretion vested in the Magistrate/Judge by Sub- section (2) of Section 125 but it also intended to remain in force until and unless the same is altered, cancelled or varied under Section 127, Cr. P.C. Such being the nature of the order passed under Section 125(1) it may be held that while making an application under Section 125(3), Cr.P.C. the applicant may not only ask for the recovery of the amount due at the time of making such application but may also pray to the Court to recover or enforce recovery of such amount also which falls due during the pendency of the application under Section 125(3). The obligation or liability to pay such amount is already contained in the order passed under Section 125(1) which is to remain in force until cancelled. It, therefore, logically follows that the amount of maintenance which falls due during the pendency of the application under Section 125(3) may also be included in the amount due at the time of passing the order for recovery thereof. In other words, at the time of passing an order under Section 125(3) for issuing a warrant for levying the amount due the whole of the amount comprising of the amount originally claimed in the application plus the amount fallen due upto the month of issuing the warrant under Section 125(3) may be recovered. In my opinion the interpretation of the words “issue a warrant for levying the amount due” made in the manner stated above would not only be in conformity with the spirit of Sub-sections (1) and (2) of Section 125 but would also do away with the avoidable necessity of presenting application for recovery of the “amount’ due for every 12 months even during the pendency of an application under Section 125(3), Cr.P.C. By such interpretation of the said words no harm is likely to be caused to the person liable to pay the amount of maintenance as it would in no way add to or increase his liability or obligation under Section 125(1) and instead would do away with the multiplicity of litigation and thus would be beneficial to the parties to the application under Section 125(3) as well as the Court concerned. The objection raised by the learned Counsel is, therefore, over-ruled.

16. Lastly, it was urged by the learned Counsel for the husband petitioner that the respondent has ceased to be his ‘wife’ within the meaning of the term used in the language of Section 125(1)(a) as their daughter living with the respondent has changed her surname from ‘Purdashani’to’Jotwani’. This argument, on the face of it, is totally misconceived and deserves to be out-rightly rejected without much comments.

17. The term ‘wife’ has been used in language of Section 125(1) in a specific sense and meaning. Explanation (b) below the proviso to Sub-Section (1) of Section 125 defines the term ‘wife’ as used in Chapter IX of the Code of Criminal Procedure 1973, and says that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. This definition clearly shows that a divorce does not affect the marital status of a woman and she does not cease to be the wife of the person, she had been married to, for the purposes of Chapter IX of the Code of Criminal Procedure 1973 till she remarries after the divorce. The case of Mohd. Ahmed Khan, 1985 Cr. L.J. 875 (SC), (though the effect of that decision of the Supreme Court has since been nullified in the cases of Muslim Women by the Muslim Women (Protection of Rights on Divorce) Act, 1986) may be referred to in this behalf. In the instant case it is not the case of the husband petitioner that the respondent has remarried after the decree of divorce obtained by the petitioner against her from the Delhi Civil Court. The respondent, therefore, continues to be the wife of the petitioner despite her having been divorced by the petitioner as per the decree of divorce passed by the Delhi Civil Court.

18. Coming to the other limb of the argument of the learned Counsel for the petitioner it is not his case that the respondent has in any way brought about any change in her personality or marital status, as explained above. It is not alleged that the respondent has renounced her religion, or has been deprived of her caste so as to entail a forfeiture of her rights and property and deprive her of her right of inheritance from the petitioner. Even if that had been so the consequences flowing from renunciation, exclusion or deprivation would cease to be enforced as law after the coming into force of the Caste Disabilities Removal Act, 1850. That apart, the right of a Hindu wife to separate maintenance and residence was regulated by the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 which now stands repealed by Section 29 of the Hindu Adoption and Maintenance Act, 1956 Section 18 whereof lays down that the wife, whether married before or after commencement of the Act, is entitled to be maintained by her husband during her lifetime unless she is unchaste or has ceased to be a Hindu by conversion to another religion, which is not alleged to be the position in the present case. This argument too is rejected.

19. The last argument in the series was that the change of the surname from ‘Purdashini’ to ‘Jotwani’ by the daughter o of the parties must be read as a change in the personality and status of the respondent herself. This argument may be rejected for more than one reasons.

20. Name is a word by which individual person, animal, place or thing is spoken of or is called. Names are arbitrary labels given to existing or non-existing objects, articles, places, persons or things. It is used to identify a person, place or thing etc. and in that sense of the matter is simply a mark of identification. Its change.in relation to that person, place or thing etc. does not bring about any change in the existence of the object concerned or the personality of the individual person concerned. It matters not whether a person is called by the name of Ram or Rahim insofar as the individual personality of that person is concerned. The mere change of name does not affect the civil, legal constitutional rights of that person. It does not affect his social status either, as a member of the society when the change of the name does not bring about any change in the individual personality of the person himself, obviously such a change can have no conceivable effect on the personality of another person and the relationship of that another person with other member of the society. A surname is simply an attribute to the name of a person and is normally used to denote or tell his sect, sub-Sect, cast or sub-caste and is totally irrelevant to affect the civil, legal or constitutional rights of a person unless a law specifically provides to the contrary.

21. In the instant case the daughter of the parties has since become major. Change of Surname by her of her own or even with the advice, efforts, instructions or even orders from the respondent does neither affect her individual personality nor that of the respondent. Even if the surname in the case of the daughter indicates a change in her social status such change does not and cannot bring about any change in the social status of her mother i.e. the respondent particularly in the relationship of her mother with her father i.e. the petitioner.

22. The conclusion of the foregone discussion is that not only totally false, vexatious and irrelevant objections, were raised by the husband-petitioner against respondents’ application under Section 125(3) but also that the proceedings were un-necessarily multiplied and prolonged by moving three separate applications. The learned Judge, Family Court, Ajmer has rightly observed that the objections raised and the three applications moved by the petitioner were quite malafide and baseless. The trial Judge was, therefore, justified in awarding costs to the respondents. In this Court too the petitioner behaved in the same manner without paying a morsel to the respondent for her maintenance. Time is perhaps ripe to discourage such frivolous and mala fidely harassing litigation by awarding befitting costs to the harassed neglected wife.

23. In view of the above, this composite revision petition is hereby dismissed with costs of Rs. 3,000/- to the respondent. The learned trial Judge shall proceed to recover the maintenance allowance due and the costs of this litigation from the petitioner in accordance with law.

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