A second appeal was dismissed holding that a Civil Court can create a charge on the husband's property to secure maintenance under Section 125 CrPC. The concurrent finding of fact regarding the wife's right over the property was not open to challenge.
Application for condonation of delay allowed; Second appeal dismissed as no question of law arose.
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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
R.S.A. No. 3248 of 2008 (O&M) Date of Decision : 14.1.2009
Nathu Ram
.......... Appellant
Versus
Smt. Ratni
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Babbar Bhan, Advocate for the appellant.
VINOD K. SHARMA, J. (ORAL)
C.M. No. 9737-C of 2008
This is an application for condoning the delay of 53 days in refiling of the isntant appeal.
For the reasons stated in the application, sufficient ground is made out for condoning the delay. Consequently, C.M. is allowed. The delay of 53 days in refiling the appeal is ordered to be condoned. R.S.A. No. 3248 of 2008
This regular second appeal is directed against the judgments and decrees passed by the learned Courts below vide which charge has been created on the property of the appellant-plaintiff to secure the maintenance granted by the Court in favour of the respondent-wife.
The respondent-wife filed a petition under Section 125 of the Code of Criminal Procedure seeking maintenance from the appellanthusband. The application was allowed and maintenance @ Rs. 100/- per
R.S.A. No. 3248 of 2008 (O&M) -2-
month to the respondent-wife and Rs. 50/- per month to her minor daughter was granted vide order dated 15.9.1997. However subsequently, vide order dated 5.8.1999, the maintenance stands enhanced to Rs. 500/-. The appellant-defendant failed to make any payment towards maintenance.
The learned Courts below on the evidence brought on record have recorded a finding that it was not open to the husband to alienate his property, when such alienation would result in depriving the wife and other dependents of their maintenance. The wife and children were held to be having a charge over the property to satisfy the order of maintenance.
The learned Courts below, thus, decreed the suit and created a charge on the property of the husband-defendant.
The learned counsel for the appellant also contends that once the maintenance was granted under Section 125 of the Code of Criminal Procedure it was not open to the Court to have created a charge over the property as the remedy available to the wife was to get the same executed by invoking the provisions of the Cr.P.C.
It is also the contention of the learned counsel for the appellant that the execution is pending.
On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The wife has not sought enforcement of the order of Criminal Court but in order to secure the maintenance, the plaintiff wife claimed a charge over the property of the husband so that her right of maintenance is not defeated by alienation.
R.S.A. No. 3248 of 2008 (O&M)
-3-
It is settled law that charge can always be created on the property by wife or other dependent to secure the maintenance.
The concurrent finding of fact recorded by the learned Courts below is not open to challenge in regular second appeal.
No question of law much less substantial question of law arises
for interference by this Court.
Dismissed.
14.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE
2 issues framed by the court
Whether it is open to a Civil Court to create a charge on the husband's property to secure a maintenance order passed under Section 125 CrPC when execution of the maintenance order is pending.
Whether the husband was estopped from alienating his property when such alienation would defeat the wife's right to maintenance.
2 provisions across 1 enactments
Nathu Ram
Smt. Ratni
Vinod K. Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
