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Judgments of Supreme Court of India and High Courts

Jayashree Ramdas Kharmale vs Ramdas S/O. Muktaji Kharmale And … on 20 July, 2018

Cri.W.P. No. 1219/17
1

IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1219 OF 2017

Jayashree Ramdas Kharmale,
Age 40 years, Occu. Nil.,
R/o. Jakhangaon, Tq. and
Dist. Ahmednagar. ….Petitioner.

Versus

1. Ramdas s/o. Muktaji Kharmale,
Age 44 years, Occu. Service,
R/o. Adarsh Madhyamik Vidyalaya,
Mumbra, Tq. Kalyan,
District Thane.

2. The State of Maharashtra,
Through : The D.G.P.
Ahmednagar. ….Respondents.

Mr. S.D. Kotkar, Advocate for petitioner.
Mr. R.K. Temkar, Advocate for respondent No. 1.
Mr. M.M. Nerlikar, APP for respondent No. 2/State.

CORAM : T.V. NALAWADE, J.
DATED : July 20, 2018.

JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

2) The petition is filed to challenge the judgment and

order of Criminal Revision No. 34/2014, which was pending in

the Court of learned Sessions Judge, Ahmednagar. The Sessions

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Cri.W.P. No. 1219/17
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Judge has allowed the revision and has set aside the order of

learned Judicial Magistrate, First Class, Ahmednagar given in a

proceeding filed under section 125 of Cr.P.C. in favour of wife and

the proceeding which was allowed by the Magistrate is

dismissed.

3) The submissions made and the record show that the

proceeding under section 125 of Cr.P.C. was filed on 9.3.2012 by

wife. By the order dated 20.11.2013 the learned Magistrate

granted maintenance at the rate of RS.3,000/- p.m. in favour of

wife. During pendency of the maintenance proceeding filed under

section 125 of Cr.P.C., the wife had filed a proceeding for civil

maintenance under section 18 of Hindu Adoption and

Maintenance Act on 6.8.2012. The civil proceeding came to be

allowed on 9.5.2014 and the maintenance at the rate of

Rs.5,000/- p.m. is granted by Civil Court. The appeal filed

against the said decision is dismissed and the decision of the

Civil Court has become final.

4) The revision is allowed by the Sessions Court by

observing that there is decision of Civil Court granting

maintenance and so, the order of maintenance made by J.M.F.C.

under section 125 of Cr.P.C. cannot be kept in existence. It is

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surprising that by making such observation and by placing

reliance on some observations made by this Court in case

reported as 1991 Mh.L.J. 1312 [Ravindra Haribhau

Karmarkar Vs. Mrs. Shaila Ravindra Karmarkar and Anr.],

the Sessions Court has dismissed the proceeding which was

allowed by the J.M.F.C. The learned Judge of the Sessions Court

has not taken care to go through the scheme of maintenance

made under Cr.P.C. In section 127 (4) of Cr.P.C., it is made clear

that when order of maintenance is made by J.M.F.C. under

section 125 of Cr.P.C. while deciding civil maintenance, the Civil

Court needs to consider the maintenance granted by J.M.F.C. The

only interpretation of this provision is that the wife can get the

amount awarded by J.M.F.C. by using provisions of Cr.P.C. and

after recovery of that amount, the remaining amount which can

be recovered under civil maintenance decree can be recovered

by using provision of Civil Procedure Code. The provision of

sections 125 to 128 of Cr.P.C. were made with the purpose that

wife gets relief of maintenance immediately and the recovery is

also immediate. That is why the provision is made to keep the

husband in prison for every default committed in making

payment of maintenance. This purpose was not kept in mind by

the learned Sessions Judge. Even when there is no provision in

Cr.P.C. or in Civil Law to set aside the decision of J.M.F.C. on the

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ground that civil maintenance is there, the learned Sessions

Judge has set aside the order made by J.M.F.C. The order of Civil

Court will prevail over the order of J.M.F.C., but meaning of that

proposition is that if the amount granted by the Civil Court is

more, that amount also can be recovered by the wife and if there

is finding of Civil Court in respect of entitlement of maintenance

of the wife, then that finding needs to be considered by Criminal

Court. In the present matter, the wife can in all recover the

amount of Rs.5000/- as monthly maintenance. She can recover

Rs.3000/- by using decision of J.M.F.C. and she can recover

Rs.2000/- by using decree of Civil Court. Thus, the Sessions

Judge has committed error in interpreting the provisions and also

the case decided by this Court. There is one more circumstance

like the proceeding was filed before J.M.F.C. on 9.3.2012 and the

maintenance is granted by J.M.F.C. from the date of application.

Proceeding before Civil Court was filed on 6.8.2012 and in that

proceeding also the maintenance will be recoverable from

6.8.2012. This simple circumstance is also not considered by the

learned Sessions Judge. In the result, following order.

ORDER

(I) The petition is allowed.

(II) The decision of the learned Sessions Judge,

Ahmednagar given in Criminal Revision No. 34/2014 is set aside

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Cri.W.P. No. 1219/17
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and the judgment and order of learned J.M.F.C., Ahmednagar

delivered in Criminal Application No. 220/2012 is restored.

Rule is made absolute in aforesaid terms.

[T.V. NALAWADE, J.]

ssc/

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