C.A. No. 843 of 1990

6th February, 1991.

Petitioner Counsel: Non-applicants 1 and 2 served

Cases Cited:
1986 Cri LJ 1216,1985 Mah LJ 958 (Bom) [Para 6]
1979 Cri LJ 3,AIR 1978 SC 1807 [Para 7]
(1939) 40 Cri LJ 91,AIR 1938 Bom 499 [Para 5]
(1930) 31 Cri LJ 609,AIR 1930 Bom 144 [Para 4]

JUDGMENT

ORDER:-This is an application under Section 482 of the Code of Criminal Procedure by the husband against whom an order of maintenance has been passed by the learned Magistrate. The learned Magistrate has also passed an order of maintenance in favour of the child. That was in Misc. Criminal Case No. 450/87 decided on 15-7- 1988 and each of them, namely, wife and the child was awarded Rs. 250/- per month by way of maintenance.

2. The applicant-husband challenged the order of the learned Magistrate by filing Criminal Revision Application No. 221/88 which came to be, however, dismissed on 17-6-1989. Aggrieved by these two orders, the present application has been filed.

3. The learned Counsel for the applicant- husband stated that the wife on her behalf and on behalf of the child filed a suit bearing Regular Civil Suit No. 103/76 for maintenance and the learned Civil Judge on 22-12-1978

awarded maintenance amount of Rs. 50/- per month to the wife and Rs. 25/- per month to the child. The applicant-husband once again appealed, but his Regular Civil Appeal No. 81/79 came to be dismissed. The submission made on behalf of the applicant is that in view of the decision of the Civil Court awarding maintenance to the wife and the child under the Hindu Adoptions and Maintenance Act, the application under Section 125 of the Code of Criminal Procedure was barred. It has to be noted in a suit filed in 1976 and decided in 1978, though a sum of Rs. 50/- per month and Rs. 25/- per month came to be awarded to the wife and child respectively, it is not necessary to state that this amount is far too inadequate to meet the present day needs of the wife and child. The learned counsel for the applicant further submits that it was open to the wife and child to approach the Civil Court again under Section 25 of the Hindu Adoptions and Maintenance Act for alteration of the amount of maintenance awarded. He submits that an independent remedy under Section 125 of the Code of Criminal Procedure could not be availed of by such a wife and child.

4. In this connection, two decisions of this Court assume relevance. In the case of Mohomed Ali Mithabhai, in re AIR 1930 Bombay 144 : (31 Cri LJ 609) a similar situation arose and it has been held that (at page 609 (of Cri LJ)-

"A mere decree of a Civil Court awarding maintenance which has become unexecutable owing to the pendency of the insolvency proceedings against the husband is not equivalent to maintaining the wife. Therefore, the Magistrate has jurisdiction under Section 488 to pass an order for maintenance in favour of the wife."

There the husband who had become unsuccessful in getting rid of the order passed by the Civil Court applied for insolvency adjudication. It is, therefore, submitted on behalf of the applicant that the decree had become unexecutable and, therefore, the Court has held that the application under Section 125 of the Code of Criminal Procedure was maintainable.

5. However, there is a later decision of this Court in re Taralakshmi Manuprasad, AIR 1938 Bombay 499: (40 Cri LJ 91), which the learned Counsel for the applicant was fair enough to refer to. That was a case in which the Court held that (at page 499 (of AIR) -

"The mere existence of a decree of a Civil Court directing a certain sum to be paid for maintenance does not, oust the jurisdiction of a Magistrate in a proper case to make an order under Section 488. Of course, the existence of such a decree is relevant when the Magistrate is considering what form of order he should make under Section 488 and the Magistrate should make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid."

In my view, this later authority clearly answers the point raised on behalf of the applicant-husband. It is true that an application for alteration of the amount awarded could have been and could be made by the wife and child in the Civil Court under Section 25 of the Hindu Adoptions and Maintenance Act. Whether that remedy is by way of an application for alteration or a separate suit is not so very relevant at this stage. However, even if either of the two remedies are open to the wife and child, it does not mean that remedy under Section 125 of the Code of Criminal Procedure is not available to them. It is well known that the civil litigation takes long time and the remedy under Section 125 of the Code of Criminal Procedure is a summary and speedy remedy. The learned Counsel for the applicant, however, points out that an interim order for maintenance could be made in other of those proceedings. All said and done, it is not possible to uphold the contention that the remedy under Section 125 of the Code of Criminal Procedure was barred because of the decision of the Civil Court under the Hindu Adoptions and Maintenance Act.

6. This Court had an occasion recently to deal with a similar point raised in Murlidhar Chintaman Waghmare v. Pratibha Murlidhar Waghmare, 1985 Mah LJ 958: (1986 Cri LJ 1216). There, the suit filed by the wife

under the Hindu Adoptions and Maintenance Act claiming maintenance came to be dismissed. Thereafter, an application under Section 125 of the Code of Criminal procedure was filed which was resisted by the husband on a similar contention raised herein. The Court held that (at page 1217 (of Cri LJ)) -

"the proceedings of the Civil Court are substantial whereas the proceedings under Section 125 of the Code of Criminal Procedure of a summary nature. Where the Civil Court of a competent jurisdiction comes to the conclusion that the wife was not entitled to maintenance the Criminal Court cannot sit in appeal over the said decision. This itself was sufficient to set aside the decision of the Additional Sessions Judge granting maintenance."

In that case, an attempt was made to contend in the proceedings under Section 125 of the Code of Criminal Procedure that there was no neglect and refusal to maintain the wife. In regard to that the decision of the Civil Court was relied upon and it is under these circumstances this Court took the view that the existence of a decree of a Civil Court by which it was held that the wife was not neglected was coming in the way of the wife in claiming maintenance under Section 125 of the Code of Criminal Procedure. In the present case, it is precisely the other way. The Civil Court held that the wife and child were entitled to maintenance under the provisions of the Hindu Adoptions and Maintenance Act on the ground that there was neglect and refusal to maintain the wife and the findings will have to be respected in the proceedings under Section 125 of the Code of Criminal Procedure as has been held in Waghmare's case. Therefore, the principle enunciated applies with equal force in the present case before me.

7. The learned Counsel for the applicant then relied upon certain observations made by the Supreme Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 : (1979 Cri LJ 3) that (at page 5 (of Cri LJ)):

"broadly stated and as an abstract proposition, it is valid to assert, that a final determination of a civil right by a civil Court must prevail against a like decision by a criminal Court."

It, with respect, does not go to lay down a rule that the application under Section 125 of the Code of Criminal Procedure is not maintainable if there is a decision inter parties of a Civil Court. Considering therefore, the submissions made on behalf of the applicant, I find that no interference of this Court is called for under Section 482 of the Code of Criminal Procedure in this case.

8. The learned Counsel for the applicant, however, rightly submitted that the Courts below have not taken into account the amount of maintenance awarded to the wife and child while making award in the present proceedings. He is right in seeking a direction of this Court while confirming the order passed by the learned Magistrate and the learned Sessions Judge that the amount of maintenance of Rs. 250/ - per month awarded to each of them, namely, wife and child, is subject to the reduction of the sum of Rs. 50/ - and Rs. 25/- per month respectively awarded by the Civil Court. This of course is subject to the actual payment by the husband of this amount awarded by the Civil Court. If he does not pay as ordered by the Civil Court, the entire amount awarded by the learned Magistrate becomes recoverable. The orders as passed are confirmed with the above modification.

Order Accordingly