An
order
of
maintenance
granted
under
Section
125(1) of the Cr.P.C. to a wife cannot be challenged
and set-aside in execution proceeding.
HIGH COURT OF CHHATTISGARH AT BILASPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL.
CRIMINAL REVISION NO. 468/2008
Santoshi Jaiswal and another
Versus
Rakesh Jaiswal
(CRIMINAL REVISION UNDER SECTION 19(4) OF THE FAMILY
COURTS ACT.)
(Passed on 02/09/2014)
1.
This revision is directed against the order dated
30/11/2007
passed
by
the
Family
Court,
Raigarh
in
M.J.C. No.37/2006.
2.
The present applicants were granted maintenance
under Section 125 of the Criminal Procedure Code, 1973
(‘the Cr.P.C.’ for brevity) by order dated 17/01/2006
and it has been held that each of the applicants are
entitled for monthly maintenance of Rs. 1,000/- from
the non-applicant.
3.
The applicants levied execution for arrears of
maintenance
execution,
amount
the
Rs.
40,000/-.
non-applicant
filed
In
an
the
said
application
(I.A. No. 1) stating that a decree for restitution of
2
conjugal
rights
has
been
passed
in
his
favour
directing the applicant No. 1 to live with him. Since
she has failed to execute that decree, therefore, the
non-applicant is not liable to make payment of the
maintenance
amount
after
the
date
of
the
impugned
order i.e. 30/11/2007.
4.
The Family Court, by its impugned order allowed
the application and held that since the applicant No.
1 has failed to comply the decree for restitution of
conjugal
rights
applicant
and
as
her
she
is
appeal
not
residing
stood
with non-
by this
dismissed
Court, therefore, the applicant No. 1 is not entitled
to
recover
the
amount
of
maintenance
as
per order
Manoj Kumar
dated 17/01/2006.
5.
Appearing
for
the
applicants
Mr.
Jaiswal, learned counsel would submit that the order
passed by the Family Court is unsustainable in law as
merely
conjugal
on
passing
rights,
of
the
decree
order
of
for
restitution
maintenance
of
granted
under Section 125 of the Cr.P.C. cannot be annulled.
6.
No one appeared on behalf of the non-applicant to
oppose the revision, though served.
7.
I have heard learned counsel appearing for the
applicants
and
circumspection.
perused
the
record
with
utmost
3
8.
From careful and close perusal of the record, it
would
appear
conjugal
that
rights
the
was
decree
passed
by
for
restitution
the
Family
Court
of
in
favour of the non-applicant and against the applicant
No. 1 on 19/02/2004 in Civil Suit No. 3-A/2003 (Rakesh
Kumar
which,
Jaiswal
First
applicant
No.
v.
Smt.
Appeal
1
Santoshi
No.
(Santoshi
Jaiswal),
91/2004
was
Jaiswal
against
preferred
v.
Rakesh
by
Kumar
Jaiswal), which was dismissed for non-prosecution on
06/04/2005.
9.
The impugned order passed by the Family Court,
deserves
to
be
set-aside
for
the
following
two
reasons:-
9.1 Firstly that the application for maintenance was
filed and finally decided on 17/01/2006, in which, the
non-applicant/husband has clearly taken a plea that
the applicant No. 1 has not complied the decree for
restitution of conjugal rights and therefore, she is
not entitled for maintenance. The said Family Court
considered the said plea and ultimately
over-ruled
the said plea and granted maintenance by order dated
17/01/2006. This order of maintenance has not shown by
either side that it has been set-aside by the higher
Court
or
it
has
been
annulled
in
proceeding
under
Section 127 of the Cr.P.C. by the Family Court. Thus
the order granting maintenance has attained finality
4
and
it
cannot
be
applicant/husband
ground
to
refuse
for
attack
by
maintenance
non-
already
granted after considering the non-compliance of said
decree.
9.2
Secondly that there is no such bar under Section
125 of the Cr.P.C. to grant of maintenance to a wife
against
passed
whom
and
decree
there
for conjugal
no express
is
rights
have
provision
been
in
the
Cr.P.C. and in absence of any express provision in the
Cr.P.C., it is appropriate to conclude the provision
contained
in
Chapter-IX
empowers
the
Magistrate
to
direct the person against whom an application is made
under Section 125 of the Cr.P.C. According to [IX 74]:
The Manu-Smriti:-
“A husband, who had to go abroad for business,
may depart after securing a maintenance for
his wife, even though virtuous may go astray
distressed by want of subsistence,” .........
[Thus, Manu-Smriti enjoins a Hindu Husband to
provide for maintenance of his wife, even while going
abroad.]
10. Thus, taking a clue from the ancient Manusmriti
and further
taking
into
consideration
the
original
order of the Family Court was granted by said Court
after
considering
the
effect
of
non-compliance
of
5
decree
of
conjugal
rights
by
the
present
applicant
No.1, and that has become final as such non-applicant
is
not
entitled
to
challenge
the
order
granting
maintenance in collateral proceeding (execution), this
Court of considered opinion that the obligation of the
non-applicant/husband to maintain his wife does not
cease with the obtaining of decree for restitution of
conjugal rights in his
absolutely
unjustified
maintenance
basis
of
favour. The Family Court is
in
said
in
execution
decree
and
annulling
proceeding
as
such
the
order
merely
order
on
passed
of
the
by
Family Court is clearly unsustainable in law and is
hereby
set-aside.
The
non-applicant
is
directed
to
deposit the entire amount from the date of order till
this date within a period of two months from the date
of passing of this order.
11.
The revision is allowed to the extent indicated
herein-above. No order as to cost(s).
JUDGE
Tiwari
6
HEAD-NOTE
An
order
of
maintenance
granted
under
Section
125(1) of the Cr.P.C. to a wife cannot be challenged
and set-aside in execution proceeding.
ifRu dks n-iz-l- dh /kkjk 125(1) ds varxZr iznku fd, x, Hkj.k iks"k.k ds vkns'k
dks fu"iknu dk;Zokgh esa pqukSrh ugha nh tk ldrh rFkk vikLr ugha fd;k tk ldrk gS A
(By Order)
(Yogesh Tiwari)
Private Secretary
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