Category Archives: sec 125 crpc

NO interim maintenance 2 qualified (doctor &498a) wife even IF husband can’t prove her earnings! P&H HC

Punjab and Haryana HC denies Interim maintenance to a well qualified doctor wife who files 498a and CrPC 125 cocktail !! Court categorically asserts that “…Everyone has to earn for himself or herself or at least make an effort and would not sit idle…..”

A classic case where a doctor wife is first refused maintenance by the Magistrate court, then on revision before the sessions court she is granted Rs 10000 p.m. and the P & H HC rightfully orders that she IS NOT ELIGIBLE for maintenance as she is a well qualified Physiotherapist doctor !!

The Hon HC orders and we quote “….The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside……”

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In the High Court of Punjab and Haryana at Chandigarh

Criminal Revision No. 2625 of 2014 (O&M)

Date of Decision: 29.09.2016

Monu Songra ….Petitioner

Versus

Pinki ….Respondent

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. Ashish Gupta, Advocate for the petitioner.

Mr. P.K.Ganga, Advocate for the respondent.


ANITA CHAUDHRY, J (ORAL)

The petitioner has assailed the order dated 13.6.2014 passed by the Additional Sessions Judge, Sirsa who allowed interim maintenance of Rs. 10,000/- per month to the wife reversing the order of the Magistrate who had dismissed the application filed under Section 125 Cr.P.C.

The parties were married on 27.11.2010. The husband is a Constable in Rajasthan. There is no child from this marriage. The wife had claimed that she had conceived but it resulted in miscarriage on 1.3.2011. Allegations were made that there were demands of dowry and she was not treated well. She claimed that she was thrown out of the matrimonial home. The petition under Section 125 Cr.P.C. was filed in February 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Chief Judicial Magistrate vide its order dated 3.10.2013 dismissed the application and the reasons are disclosed in para 8 of the order which reads as under:- “After hearing ld. Counsel for the parties and having gone through record carefully I am of the considered opinion that the application is liable to be dismissed. It is admitted case of the parties that they married to each other. It is also admitted case of the parties that they got strained relations between them. It is also admitted fact that no child was born out this wedlock. It is also admitted fact that criminal case u/s 498-A IPC has been registered against the respondent at the instance of the complainant. It is also admitted case that the petitioner filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 which was dismissed as withdrawn. No doubt there are counter allegations against each other and both the parties are trying to make the other party responsible for disturbing the matrimonial life. But in this application, only one this is to be examined as to whether the petitioner is unable to maintain herself or whether he or she is having any sufficient means of income. The copy of FIR mentioned above clearly shows that the petitioner has categorically stated therein that she is physiotherapist doctor meaning thereby that she is well educated and respondent has categorically stated that she is earning 25,000/- per month. Even this amount may be exaggerated however it can be easily inferred that she might have been earning sufficient income maintain herself.”

Aggrieved by the judgment, a revision was preferred by the wife. The Additional Sessions Judge, Sirsa vide its order dated 13.6.2014 was of the view that even if the wife had a professional degree it would not matter and she would have to gain sufficient experience to earn and there was no allegation that she was working as a doctor in an institute or had opened her own clinic. It allowed the revision and awarded Rs. 10,000/- per month as maintenance.

The petitioner claims that the wife did not want to live with him and she had filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights but later the petition was withdrawn as he had appeared and made a statement that he was willing to keep her at his place of posting but the wife refused to accompany him. It was pleaded that the wife had got an FIR registered against him. It was also pleaded that the petitioner had concealed that she was a Physiotherapist before her marriage and was working and she did not mention this fact in her petition and it was a case of concealment. It was pleaded that his basic salary was Rs. 8550/- per month and after deduction, the carry home salary was 15065/- and the Court below had allowed Rs. 10,000/- taking the major portion of his salary, when he had his old parents to look after.

I have heard submissions of both the sides.

Counsel for the petitioner has placed on record a copy of the judgment dated 30.4.2016 to show that the trial had ended in acquittal. He has placed on record a copy of the FIR where the wife had described herself as a physiotherapist (doctor).

The submission on behalf of the petitioner was that the wife had deserted the husband and she did not want to go and live in Rajasthan and she herself withdrew the petition and it was a case of concealment of fact. It was urged that the wife had done her diploma in Physiotherapy after her 12th class and thereafter had completed her Graduation sometime in 3 of 5 2007 and the marriage took place in 2010 and the wife was working even before marriage and the Revisional Court assumed that it would take a number of years for her to settle in her profession. It was urged that the Court did not consider the fact that there was an admission that she was a Physiotherapist and this information was given by her at the time of lodging of the FIR in September 2013. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The submission, on the other hand, was that the respondent was not earning and the husband is under a duty to provide for the wife.

The wife in her petition filed under Section 125 Cr.P.C. did not disclose that she was a Physiotherapist or was earning but in the First Information Report lodged with the police in September 2013 she had mentioned that she was a Physiotherapist (doctor). The information was provided by the complainant. There was no reason for the complainant to mention that. When it has been specifically mentioned it can be assumed that she was a practicing Physiotherapist. The husband is posted in Rajasthan. It is not possible for him to collect the information whether she was running a clinic or about her income. The trial Court had noted this and had declined the application for interim maintenance and rightly so. The Revisional Court based on assumptions wrongly allowed maintenance at the interim stage. It should have taken some affidavit from the wife. The wife had to explain how that fact was introduced in the FIR. There was a categoric assertion in the FIR that she was a Physiotherapist, it appears that the wife was hiding facts. She is capable of earning. The trial Court is yet to consider the case on merits. It will have to determine whether a qualified woman who can get a job can sit idle and insist on maintenance. Everyone has to earn for himself or herself or at least make an effort and would not sit idle. See Mamta Jaiswal versus Rajesh Jaiswal 2000(3) MPLJ 100. The order passed by the Revisional Court is set aside.

Before parting with the order, it is necessary to mention that the petition filed in 2013 has still not been decided. The litigation can really corrode human relationship and it is the duty of the Court to curtail it. There is no need to hurry but procrastination should not be manifest. The Courts should be in complete control over the proceedings and should not permit the lis to be prolonged and if either party is delaying the proceedings, necessary steps should be taken.

The petition is allowed. Order dated 13.6.2014 passed by the Additional Sessions Judge, is set aside.

Nothing contained in this order shall be taken as an opinion on merits. The trial Court would independently decide the case on the basis of the evidence that shall be adduced by the parties.

(ANITA CHAUDHRY)
JUDGE

September 29, 2016

Gurpreet


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Sessions & HC have concurrent revisionary jurisdiction, so IF you loose @ sessions use 482 @ HC

Wife has been awarded maintenance in 2013 ! Husband delaying maintenance by filing revision, 482 etc etc !!

However this case illustrates an important point of law, as extracted below

Key excerpts :
“….4. The Sessions Court and the High Court have concurrent revisional jurisdiction and if a person elects to move the Sessions Court, he is precluded from filing a second revision petition before the High Court under Section 397(3) Cr.P.C. However, a petition under Section 482 Cr.P.C. is maintainable, when it is shown that grave illegality has been committed by the Courts below, resulting in undue prejudice to the party…..”

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 19.09.2016

CORAM

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH

CRL.O.P.No.21143 of 2016

Elumalai .. Petitioner
Vs

A.Mangathal .. Respondent

Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records and order dated 03.12.2015 in CRP.No.21/2014, on the file of the II Additional District Judge, Tindivanam, confirming the order dated 08.10.2013 in M.C.No.9 of 2012, on the file of the Judicial Magistrate No.1 and to set aside the same.

For Petitioner : Mr. J.Antony Jesus

O R D E R

This Criminal Original Petition has been filed to call for the records in CRP.No.21 of 2014 on the file of the II Additional District Judge, Tindivanam, confirming the order dated 08.10.2013 in M.C.No.9 of 2012, on the file of the Judicial Magistrate No.1 and to set aside the order dated 03.12.2015.

  1. For the sake of convenience, the parties will be referred to by their name. Mangathal got married to Elumalai in the year 1970 and they have two children through their wedlock. Their matrimonial life ran into rough weather, resulting the spouses getting estranged.
  2. Mangathal filed MC.No.9 of 2012 before the Judicial Magistrate No.1, Tindivanam under Section 125 Cr.P.C. against Elumalai. The learned Magistrate by order dated 08.10.2013, has directed Elumalai to pay a sum of Rs.1,000/- as maintenance per month. Aggrieved by the order, Elumalai preferred CRP.No.21 of 2014, which was dismissed by the learned II Additional District Judge, Tindivanam on 03.12.2015, confirming the order passed by the learned Judicial Magistrate, Tindivanam. Now, Elumalai is before this Court under Section 482 Cr.P.C.

  3. The Sessions Court and the High Court have concurrent revisional jurisdiction and if a person elects to move the Sessions Court, he is precluded from filing a second revision petition before the High Court under Section 397(3) Cr.P.C. However, a petition under Section 482 Cr.P.C. is maintainable, when it is shown that grave illegality has been committed by the Courts below, resulting in undue prejudice to the party.

  4. Mr.J.Antony Jesus, learned counsel appearing for Elumalai submitted that Elumalai had already settled some properties in favour of Mangathal as permanent alimony and therefore, he cannot be directed to pay further maintenance under Section 125 Cr.P.C. Both the Courts below have gone into this factual aspect and negatived the claim of Elumalai.

  5. The Courts below have awarded a paltry maintenance of Rs.1,000/- in favour of Mangathal. This Court does not find any serious illegality in the orders passed by the Courts below warranting interference under Section 482 Cr.P.C.

In the result, the petition is devoid of merits and dismissed.

19.09.2016 ds To

1.The II Additional District Judge, Tindivanam.

2.The Judicial Magistrate, Tindivanam,

  1. The Public Prosecutor, High Court, Madras.

P.N.PRAKASH, J.

ds Crl.OP.No.21143 of 2016 19.09.2016

Even callous husband NOT paying maintenance, CAN’T b arrested b4 coercive measures u/Sec 421 exhausted. P & H HC

Any husband (even callous husband ) NOT paying maintenance under Sec 125 CrPC, CANNOT be arrested BEFORE other coercive measures u/Sec 421 CrPC, like attaching property etc, are exhausted. Punjab-Haryana High Court

In this classic case the Hon P & H HC states that unless other modes of recovery (as contemplated under sec 421 are ) are exhausted a husband CANNOT be arrested for NON payment of arrears maintenance !! So the executive magistrate has (a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender or (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. Also, NO warrant could be issued if the arrears is MORE than 1 year !!

This is VERY useful case for husbands to use when they are unable to pay maintenance i/s 125 CrPC !!

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Punjab-Haryana High Court

Om Parkash vs Vidhya Devi on 21 March, 1991

Equivalent citations: 1992 CriLJ 658

Author: J Sekhon

Bench: J Sekhon

ORDER J.S. Sekhon, J.

 

  1. In proceedings under Section 125 of the Code of Criminal Procedure, 1973, Smt. Vidya Devi was awarded maintenance allowance at the rate of Rs. 150/- per month for herself and Rs. 100/ – per month for her minor daughter against her husband Om Parkash from the date of application, i.e., 9-5-1984. It is not disputed that the order of the Judicial Magistrate has become final as the revision petition filed against it has since been dismissed by the Additional Sessions Judge and petition under Section 482 of the Code was also dismissed by the High Court in Cr. Misc. 4919-M of 1989. Om Parkash, husband or the father, as the case may be, failed to pay the amount of maintenance allowance to his wife and daughter which resulted in taking execution proceedings by Vidya Devi respondent against him. On 25-1-1990, Om Parkash, the husband failed to turn up before the Court of the Additional Chief Judicial Magistrate, Kurukshetra, despite service inferred from the refusal to accept service. The trial Cour under these circumstances, ordered the arrest of Om Parkash, and issued conditional warrants of arrest for 16-2-1990 stating that if he pays Rs. 15,500/- as arrears of maintenance allowance he shall not be arrested. Aggrieved against this order, the husband-petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, contending that without exhausting coercive methods provided under Section 421 of the Code of Criminal Procedure like attachment of property etc. etc., the arrest of the petitioner could not be ordered. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  2. I have heard the learned counsel for the parties besides perusing the record.
  3. The provisions of Sub-section (3) of Section 125 of the Code read as under:–
    • (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 provided 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, to imprisonment for a term which may extend 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.
    • Provided further that if such person offers to maintain his wife on condition of her living with him and she refused to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
    • Explanation : If a husband has contracted marriage with another woman or keeps a mistress  it shall be considered to be just ground for the wife’s refusal to live with him.
    • A bare glance through the same leaves no doubt that if any person fails to comply with the order of the Magistrate to pay maintenance allowance without sufficient cause, such Magistrate may issue warrant for levying the amount due in the manner provided 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, to imprisonment for a term which may extend to one month or until payment if sooner made.
  4. The procedure for levying fine is contained in Section 421 of the Code of Criminal Procedure which reads as under:–
    • 421. Warrant for levy of fine.
    • (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may–
    • (a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender.
    • (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.
    • Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
    • (2) The State Government may make rules regulating the manner in which warrants under Clause (a) of Sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the Offender in respect of any property attached in execution of such warrant.
    • (3) Where the Court issues a warrant to the Collector under Clause (b) of Sub-section (1), the Collector shall realise the amount in, accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law; Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.”
    • The perusal of the above-quoted Section 421 reveals that there are two methods for levying fine and the Court has been empowered to opt for either of these two modes or both at one and the same time. One of these modes provided under Sub-section (1) (a) is to issue a warrant for levy of the amount by attachment and sale of movable property belonging to the offender and the other being issuance of a warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable property, or both. In the case in hand, the trial Court had not resorted to any of these coercive measures for the recovery of the arrears of maintenance allowance although it is mentioned in the impugned order of the trial Court that the husband is a man of means. Thus, legally the impugned order of the trial Court being not sustainable calls for quashment.
  5. Before parting with the judgment, I am constrained to remark that Om Parkash petitioner appears to be a callous sort of person as he failed to pay even half of the maintenance allowance, as ordered by this Court, to his wife and daughter. Although he deserves no sympathy yet all the same in view of the legal position, there is no option but to accept this petition and quash the impugned order of the trial Court. The petitioner is directed to appear before the trial Court on 26-4-1991 and furnish details of the movable and immovable property owned by him to the trial Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  6. The trial Court is directed to dispose of the execution petition expeditiously preferably within six months.

 


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Arrears under S125 CrPC. NO arrests for execution beyond 1 year arrears 

Arrears under Sec 125 CrPC
NO arrests for execution beyond 1 year (of arrears) !!
NO arrest BEFORE other coercive measures completed
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* As far as I know, under sec 125, though the maintenance liability may continue, “…No application for execution of the maintenance order can be entertained for a period exceeding 12 months immediately preceding the date of application…” Meaning the “…the wife the maintenance-holder cannot accumulate the maintenance for a period beyond 12 months…..”
* I have the following cases in support of this claim.
* There are also other SC and HC cases which support this claim. Could some one add to this repository with other (stronger) cases
 
Andhra HC
———————
Wife cannot accumulate maintenance for more than 12 months and claim recovery by arresting husband. No execution for maint older than 12months in 125(3).AP HIgh court
.
Karnataka HC
———————-
Max one month arrest for unpaid maintenance under sec 125 CrPC. Husband cannot be arrested again for the same arrears. Arrest cannot be extended
..
Madras HC
———————–
Arrest for non pmt maint us 125 CrPC within MAX 1yr, but NO TIME LIMIT FOR RECOVERY u/s 128 CrPC. Madras HC
 
Punjab & Haryana HC
——————————
Any husband (even callous husband ) NOT paying maintenance under Sec 125 CrPC, CANNOT be arrested BEFORE other coercive measures u/Sec 421 CrPC, like attaching property etc, are exhausted. Punjab-Haryana High Court
 
May I request regular readers to add to this list …thank you

Sec 125 : Husband can be arrested ONLY 1 month AT A TIME for non payment of maintenance

Supreme Court of India

Shahada Khatoon And Ors. vs Amjad Ali And Ors. on 7 April, 1999

Equivalent citations: 2000 (1) ALD Cri 305, 1999 CriLJ 5060, I (2000) DMC 313 SC, JT 1999 (10) SC 260, 2000 (1) KLT 696 SC, 2000 (2) MPHT 1, 1999 (2) MPLJ 448, 1999 II OLR SC 333, (1999) 5 SCC 672

Bench: G Pattanaik, M Shah

ORDER

The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted Sub-section (3) of Section 125 of the Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned Counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made.

We are unable to accept this contention of the learned Counsel for the appellants.

The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed.


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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