Allowed

Gyanendra Asthana v. State of U.P. and Another

Allahabad HC21 Jul 2023/269/2020

Case brief

AI extract

What is this about?

This criminal revision challenged an order enhancing a wife's maintenance under Section 125 Cr.P.C. after a divorce decree and permanent alimony under Section 25 Hindu Marriage Act were passed. The High Court held the Section 125 proceeding unsustainable as it had merged into the civil decree.

What did the court decide?

The impugned order enhancing maintenance under Section 125 Cr.P.C. was set aside and the revision was allowed.

Gyanendra Asthana Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2023)

¶1

Neutral Citation No. - 2023:AHC-LKO:48062

¶2

A.F.R.

¶3

Reserved on :- 03.07.2023

¶4

Delivered on :- 21.07.2023

¶5

Court No. - 29

¶6

Case :- CRIMINAL REVISION No. - 269 of 2020 Revisionist :- Gyanendra Asthana

¶7

Opposite Party :- State of U.P. and Another

¶8

Counsel for Revisionist :- Anurag Shukla,Abhishek Mishra,Anil Kumar Jaiswal,Mohammad Hamza Beg

¶9

Counsel for Opposite Party :- Govt. Advocate,Bahar Ali,Prasoon Srivastava

¶10

Hon'ble Mrs. Renu Agarwal,J.

¶11

Heard learned counsel for the revisionist, learned AGA for the State and learned counsel for the opposite party No. 2.

¶12

The present revision is preferred under Section 397 read with 401 Cr.P.C. read with Section 19(4) of Family Courts Act against the impugned judgment and order dated 07.02.2020, passed by Additional Chief Judicial magistrate, Family Court, Court No. 2, Sitapur in Criminal Case No. 1850 of 2014 pertaining under Section 125 Cr.P.C. by means of which the revisionist has been ordered to give maintenance to his ex-wife in absolutely illegal, improper and unfounded manner.

¶13

It is submitted that judgment and order passed by the Court below is illegal and perverse as the trial court has not taken into consideration that decree of divorce has been passed in Regular

¶14

1 of 12

¶15

Civil Suit No. 18 of 2005 under Section 13 of Hindu Marriage Act and proceeding under Section 125 Cr.P.C. is summary in nature and the established legal yardsticks postulates that the criminal proceedings are always subsidiary to civil proceedings. In compliance of the decree of divorce passed in Regular Civil Suit No. 18 of 2005 passed by the Court below, revisionist has paid permanent alimony amounting to Rs. 2,00,000/- (Two Lacs) through Bank Draft No. 065192. Section 27 of the Hindu Marriage Act itself provides that the escalation/variation in the quantum of permanent alimony, therefore, the proceeding of Section 125 Cr.P.C. is not maintainable. It is further submitted that revisionist and opposite party No. 2 had entered into compromise agreement dated 03.04.2010 and had mutually agreed that revisionist would pay the amount of Rs. 1,50,000/- (One Lakh Fifty Thousand) to opposite party No. 2 who, in turn, will withdraw all the pending cases against the revisionist and her right to claim maintenance will also be waived. In compliance of the compromise agreement, revisionist has returned all the gifts and other articles to the opposite party No. 2, therefore, the impugned order dated 07.02.2020 is liable to be setaside.

¶16

On the other hand, learned counsel for opposite party No. 2 submitted that revisionist has not approached before Hon’ble Court with clean hands as the basis behind the enhancement of maintenance order from Rs. 1,000/- to Rs. 4,000/- per month is the concealment of income/salary by the revisionist in Civil Suit No. 1611 of 2005 and the change in circumstances as to the price index,

¶17

2 of 12

¶18

day to day expenses etc. Therefore, the present revision petition must be dismissed in limine . It is further submitted that criminal case No. 1850 of 2014 under Section 125 Cr.P.C. is filed by the opposite party No. 2 to modify the judgment passed by the learned Judicial Magistrate-I, Sitapur in Civil Suit No. 1611 of 2005 on the basis of change in circumstances in the income of revisionist, hence the impugned order is passed in accordance with the provisions of Section 125 Cr.P.C.

¶19

Opposite party No. 2, relying upon the case law passed by Hon’ble the Supreme Court in case of S.P. Chengalvaraya Naidu (Dead) Vs. Jagannath (Dead) reported in AIR 1994 SC 853 and K.D. Sharma Vs. Steel Authority of India Ltd. & Ors . reported in (2008) 12 SCC 481 submitted that no litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. It is further submitted that opposite party No. 2 has already filed an appeal No. 200011 of 2012 against the judgment and order dated 07.11.2011 passed by learned Civil Judge, Bahraich in regular suit No. 15 of 2005 which is still pending. It is argued that opposite party No. 2, wife of revisionist is not able to maintain herself as the inflation has increased so much from the date when permanent alimony was awarded and the respondent’s widowed mother is also living with her, hence, it is prayed that revision should be dismissed.

¶20

I have heard the rival submissions advanced on behalf of the parties and perused the entire record.

¶21

3 of 12

¶22

There are few admitted facts which needs to be taken into consideration. Marriage between the revisionist and opposite party No. 2 is not denied. The case was filed by opposite party No. 2 under Section 125 Cr.P.C. before the Judicial Magistrate-I, Sitapur as Civil Suit No. 1611 of 2005 for maintenance and the maintenance of Rs. 1,000/- per month was paid to opposite party No. 2 till the decree of divorce on 07.11.2011 was passed by the competent court and the revisionist paid permanent alimony to opposite party No. 2 as per the order of Family Court awarded in Suit No. 15 of 2005. The revisionist produced before the court details of amount paid to opposite party No. 2 and cheque number vide which the maintenance amount was paid till 02.09.2011. It is not denied by opposite party No. 2 that in compliance of the decree of divorce, revisionist has already paid a sum of Rs. 2,00,000/- (Two Lacs) to her and later on Misc. Application No. 1850 of 2014 is filed by opposite party No. 2 against the revisionist to enhance the maintenance amount from Rs. 1,000/- to Rs. 5,000/- per month and modify the order dated 07.02.2020 passed in Criminal Case No. 1850 of 2014.

¶23

On the contrary, revisionist moved a Misc. Application No. 1852 of 2014 to reject the maintenance order. Learned Additional Principal Judge, Family Court No. 2, Sitapur allowed the application of the opposite party no. 2 and enhanced the amount of maintenance from 1,000/- to Rs. 4,000/-. By way of this revision, the revisionist challenged the impugned order of enhancement. The main contention of learned counsel for the revisionist is that matrimonial

¶24

4 of 12

¶25

relation between the parties have already been dissolved by way of decree of divorce passed by the Civil Court in Civil Suit No. 18 of 2005 and he paid the total amount of maintenance awarded by Judicial Magistrate-I vide order dated 04.09.2006 by cheque and bank draft till the date of decree of divorce. It is further contended that the revisionist was directed by Family Court to pay Rs. 2,00,000/- towards the permanent maintenance of opposite party No. 2 which he paid to opposite party No. 2 through bank draft. Parties have entered into compromise agreement to withdraw all the cases running at the time of compromise and right to maintenance after permanent alimony shall also be waived. It is notably true that the criminal proceedings are subsidiary to the civil proceedings and when the legal right of parties have been decided by the Civil Court of competent jurisdiction, the interim relief awarded during the criminal proceedings merges into final judgment. The proceedings under Section 125 Cr.P.C. are summary in nature which are postulated by legislature with the motive of social welfare that no one to be kept destitute and a wife should have so much amount of maintenance which is sufficient to maintain herself. Hon’ble High Court and Hon’ble Supreme Court in plethora of cases have ruled that the wife who is unable to maintain herself should be awarded such quantum of maintenance which is sufficient for maintaining herself as per the stature of her husband. Therefore, the learned Judicial Magistrate has directed the revisionist to pay Rs. 1,000/- per month on 04.09.2006. It is also apparent from the impugned judgment that opposite party has received Rs. 2,00,000/- as a

¶26

5 of 12

¶27

permanent alimony by the Bank Draft No. 065192 on 30.11.2011. It is not disputed that parties have entered into compromise and the decree of divorce was passed on the condition to pay permanent alimony to wife, thereafter, the decree of criminal court has merged in the decree of Civil Court. Hence, there was no occasion for the Court to enhance/modify or alter the order passed by Judicial Magistrate on 04.09.2006 allowing the application of opposite party No. 2 for maintenance.

¶28

8. Section 25 of the Hindu Marriage is reproduced hereinbelow:-

¶29

“ 25 Permanent alimony and maintenance .

¶30

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall⁵⁵ [***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant⁵⁶ [, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

¶31

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

¶32

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock,⁵⁷ [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just]. ”

¶33

6 of 12

¶34

If the court is satisfied that there is change in the circumstance of either party at the time after it has made an order under sub-Section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. Once the order passed in criminal proceedings is merged into Civil case in the judgment of Civil Suit, opposite party No. 2 has an efficacious remedy available vide Section 25(2) of the Hindu Marriage Act to vary, modify or rescind the order passed by the Civil Court. It is argued on behalf of opposite party No. 2 that in S.P. Chengalvaraya Naidu (supra) it has been held by Hon’ble Supreme Court that “ Fraud avoids all judicial acts, ecclesiastical or temproal-observed Chief Justice Edward Coke of England about three centuries ago. It is settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment or decree passed by first court or by highest court has to be treated as a nullity by every court, whether superior or inferior.”. Learned counsel for opposite party No. 2 argued that revisionist did not disclose his income at the time of passing the decree of maintenance and he played fraud upon the court regarding his salary, hence, the court has inherent power to recall the order.

¶35

From the perusal of materials available on record, it is apparent that the revisionist disclosed his income as Rs. 1,300/- per month, however, when she procured the information through R.T.I. she came to know that his income was Rs. 9,348/- per month. Learned counsel for the revisionist submitted that if there are changes in

¶36

7 of 12

¶37

circumstances and if the opposite party wants to enhance, alter or modify the order of Civil Court. Opposite party No. 2 can avail the opportunity of filing petition under Section 25 (2) of Hindu Marriage Act and it was not open for her to move petition for enhancement of maintenance under Section 125 Cr.P.C. which has already been merged in the civil proceedings according to the agreement between the parties.

¶38

From the perusal of impugned judgment and order of the trial court, it transpires that Family Court discussed all the facts in the impugned judgment, but, it could not appreciate the fact that parties have entered into compromise for final settlement/permanent alimony. Learned counsel for the revisionist submitted that opposite party No. 2 is working as a teacher, she has regular income and she possess her own house worth Rs. 5,00,000/- (Five Lacs). Learned Family Court did not appreciate the fact that opposite party No. 2 herself was working as a teacher and the fact that criminal proceedings have merged into civil proceedings.

¶39

In the case of Rajesh Vs. Neha Passed in Criminal Appeal No.

¶40

730 of 2020 on the issue of overlapping of jurisdiction in grant of maintenance the Hon’ble Supreme Court has held as under :-

¶41

“ (a) Issue of overlapping jurisdiction

¶42

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

¶43

8 of 12

¶44

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

¶45

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

¶46

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding. ”

¶47

The Hon’ble Apex Court has thus held that a wife can make a claim for maintenance under different statutes. There is no bar to seek maintenance both under the protection of Women against Domestic Violence Act, 2005 and Section 125 of the Cr.P.C., or under Hindu Marriage Act”

¶48

Opposite party no. 2 made reliance on Rajnish Vs. Neha’s case (supra) in which Hon’ble Supreme Court has held that it is well settled that wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding for maintenance, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the

¶49

9 of 12

¶50

subsequent proceeding, the civil/family court shall take into account the maintenance awarded in any previously instituted proceeding.

¶51

This case is no benefit to opposite party No. 2. The case law discussed the grant of maintenance during the proceedings pending in different court simultaneously. However, in the impugned case, case has been finally compromised and in consonance with the compromise, the decree of divorce is passed with an order to pay permanent alimony to the opposite party No. 2.

¶52

In Vishal Prajapati Vs. Smt. Monika Prajapati passed in First Appeal No. 70 of 2020 decided on 30.09.2021, rulings relied on by the learned counsel for the revisionist a Division Bench of Allahabad High Court has followed the aforesaid principle laid down by Hon'ble Apex Court and has held that the court would consider an adjustment or set of the amount awarded in previous proceedings.

¶53

So there is no bar to seek maintenance both U/s 125 Cr.P.C. or Hindu Marriage Act but the court will have to adjust or set of the amount awarded in previous proceedings.

¶54

In Surendra Kumar Bhansali Vs. The Family Judge Court and another reported in 2004 AIR (Rajasthan) 257 it has been held that pendency of appeal does not preclude wife from filing of application U/s 25 of the Hindu Marriage Act. While in Har Charan Singh Vs. Kamal Preet Kaur (Supra) it has been held that court can grant maintenance and permanent alimony to wife without specific application.

¶55

10 of 12

¶56

In this case, the opposite party No. 2 has withdrawn the amount of permanent alimony awarded under Section 25 of the Hindu Marriage Act, hence, there is no question of adjustment or recovery under both the orders. However, she has challenged the divorce in appeal and appeal is pending, but she has accepted the amount of permanent alimony, furthermore, she is working as a teacher and it cannot be said that she is destitute after divorce.

¶57

Present issue has been well addressed by Hon’ble the Supreme Court in its Judgment in case of Rakesh Malhotra Vs. Krishna Malhotra, passed in Criminal Appeal No(s). 246-247/2020, decided on 07.02.2020. Hon’ble Supreme Court, after considering the law has held that “Application under Section 125 Cr.P.C. cannot be filed after the order has been passed under Section 25 of the Hindu Marriage Act.” Hon’ble Supreme Court further held that “ In view of Section 25(2) of the Hindu Marriage Act, wife can file appropriate application before concerned court” .

¶58

Learned trial court did not deal with the aforesaid point in its judgment and enhanced the amount of maintenance stating that it is for the welfare. Learned Family Court did not consider the fact that the appeal 18 of 2005 is challenged by way of appeal in the High Court and it is also open for the opposite party No. 2 to move again an application under Section 25 of the Hindu Marriage Act which is also not considered by the Family Court.

¶59

11 of 12

¶60

The finding of learned Family Court is not in consonance with the evidence available on record and the impugned order suffers from infirmity and illegality, therefore, it is liable to be set-aside.

¶61

In view of the discussions as above, instant revision is allowed .

¶62

(Renu Agarwal,J.)

¶63

Order Date :- 21.7.2023 Karan

¶64

12 of 12

¶65

Digitally signed by :- KUMAR KARAN RAO High Court of Judicature at Allahabad, Lucknow Bench

Gyanendra Asthana v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Gyanendra Asthana v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ram Autar Vs Union of India

Smt. Suyashi Jaiswal Vs Shri Ajay Jaiswal and Another

Santosh Kumar and Another Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

Ram Prakash Achari Vs State of U.P. Thru. Its Secy. Deptt. of Home Affaira, Lko. and Another

Satya Narain Vs State of U.P. and Others

Mata Prasad Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and 4 Others