Dismissed

Saurabh Negi v. State of Uttarakhand

Uttarakhand HC3 May 2024CRLR/544/2023

Case brief

AI extract

What is this about?

This Court dismissed criminal revision petitions challenging orders in maintenance recovery proceedings under the Domestic Violence Act. The Court held the revisionist must pay the original maintenance amount despite an interim stay and ruled that immovable property can be attached for recovery.

What did the court decide?

Revisions dismissed; revisionist liable to pay original maintenance amount; immovable property attachable for recovery.

Saurabh Negi Vs State of Uttarakhand — Maintenance and Alimony | Uttarakhand HC (2024)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Revision No.544 of 2023

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Saurabh Negi …….....Revisionist

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Vs.

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State of Uttarakhand and another …...... Respondents

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Mr. Raman Kumar Shah, Advocate for the revisionist. Mr. M.A. Khan, AGA for the State/respondent no.1. Mr. G.S. Negi, Advocate for respondent no.2.

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With

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Criminal Revision No.545 of 2023

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Saurabh Negi …….....Revisionist

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Vs.

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State of Uttarakhand and another …...... Respondents

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Mr. Raman Kumar Shah, Advocate for the revisionist. Mr. M.A. Khan, AGA for the State/respondent no.1. Mr. G.S. Negi, Advocate for respondent no.2.

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JUDGMENT

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Hon’ble Ravindra Maithani, J. (Oral)

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Since common questions of facts and law are involved in both these revisions, they are heard together and are being decided by this common judgment.

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In Criminal Revision No.544 of 2023, the challenge is made to the following:-

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i. Order dated 17.07.2023, passed in Misc. Criminal Case No.14 of 2018, Smt. Vibha Negi vs. Saurabh Negi and others, by the court of Judicial Magistrate, Kotdwar, District Pauri Garhwal, whereby the

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application moved by respondent no.1 under Sub Rule (5) of Rule 6 of the provisions of the Protection of Women From Domestic Violence Rules, 2006 has partly been allowed.

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In Criminal Revision No.545 of 2023, the challenge is made to the following:-

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i. Order dated 17.07.2023, passed in Misc. Criminal Case No.22 of 2019, Smt. Vibha Negi vs. Saurabh Negi and others, by the court of Judicial Magistrate, Kotdwar, District Pauri Garhwal, whereby the application moved by respondent no.1 under Sub Rule (5) of Rule 6 of the provisions of the Protection of Women From Domestic Violence Rules, 2006 has partly been allowed.

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Heard learned counsel for the parties and perused the record.

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The respondent no.2 (“the applicant”) filed an application under Section 12 of the Protection Of Women From Domestic Violence Act, 2005 inter alia seeking maintenance from the revisionist, which was basis of Misc. Criminal Case No.97 of 2013, Smt. Vibha vs. Saurabh Negi and others in the court of Additional Chief Judicial Magistrate, Kotdwar District Pauri Garhwal (“the case”). The case was decided on

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27.09.2016. The court issued various directions including payment of `40,000/- maintenance amount. Order 27.09.2016, passed in the case was unsuccessfully challenged by the revisionist in Criminal Appeal No.78 of 2018, Saurabh Negi vs. Smt. Vibha Negi, in the court of Sessions Judge, District Pauri Garhwal (“the appeal”).

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Both the judgments and orders passed in the case and in the appeal were challenged by the revisionist in Criminal Misc. Application No.366 of 2019 (“the petition”) before this Court. On 14.03.2019, while admitting that petition the Court had stayed the operation of the impugned order subject to the revisionist paying `30,000/- per month as maintenance. The petition filed by the revisionist was finally dismissed on 23.12.2022.

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The applicant filed an application for execution of order of maintenance for the period beginning from 27.09.2016 till 12.02.2018. The application for recovery was registered as Misc. Criminal Case No.14 of 2018, Smt. Vibha Negi vs. Saurabh Negi and others.

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For recovery of arrears from 19.02.2018 till 27.03.2019, the applicant’s application for recovery of

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maintenance was registered as Misc. Criminal Case No.22 of 2019, Smt Vibha Negi vs. Saurabh Negi and others. Both these Misc. Cases were decided by the impugned orders. They have been challenged in these two revisions.

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Learned counsel for the revisionist would

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submit that :-

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a) The order granting maintenance was passed by the Magistrate court, which was confirmed in appeal was challenged in the petition. On 14.03.2019, this Court has ordered for interim maintenance of 30,000/-per month. Therefore, from 14.03.2019, when the order for grant of interim maintenance of 30,000/per month was awarded, till the petition was decided on 23.12.2022, the revisionist is liable to pay the maintenance @ `30,000/- per month only; and

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b) In the recovery proceedings, the movable property alone may be attached, immovable property cannot be attached, in view of Form 19 of the Schedule of the Code.

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It is argued that in the instant case, in the execution proceedings, the house of the revisionist has been attached, which cannot be done. It is bad in the eyes of law.

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Learned counsel for the applicant would submit that interim order passed in the petition on 14.03.2019 has merged in the final order dated 23.12.2022. It is argued that the order of maintenance awarded by the court of Magistrate in the case on 27.09.2016 has finally been upheld by this Court on 23.12.2022. Therefore, for the entire period from 22.09.2016, the revisionist is liable to pay maintenance @ `40,000/- per month and not less than it.

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It is argued that in so far as the proceedings of recovery is concerned, in view of Rule 6 to the Protection of Women From Domestic Violence Act, 2005 (“the Act”), the order passed under Section 12 of the Act can be enforced in the same manner, as laid down under Section 125 of the Code. It is argued that accordingly, the recovery has been done.

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The sole question is, as to whether the revisionist is liable to pay @ `40,000/- per month from the period beginning from 14.03.2019 till 23.12.2022, when finally the petition was decided.

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Maintenance order was passed in the case on 27.09.2016 by the court of Magistrate. It was upheld in the appeal by the court of Sessions. When these both

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orders were challenged in the petition, on 14.03.2019, the court passed the following order:-

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“List this matter on 23.04.2019.

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Till next date of listing, effect and operation of the impugned orders dated 27.09.2016 and 11.01.2019 rendered by learned Court below shall remain stayed, provided the applicant pays `30,000/- per month, as maintenance to respondent no.2 on or before 7^th day of each month.”

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A bare perusal of the above order reveals

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that by it, the court has not directed for payment of interim maintenance as such. What the Court did was, it stayed the operation of the impugned order, subject to the condition, that the revisionist shall continue to pay 30,000/- as maintenance. The fact remains that the petition was finally dismissed by this Court on 23.12.2022. The order dated 14.03.2019 was an interim arrangement so as to stay the operation of impugned order. It looses its significance the moment, the final order was passed in the petition. Therefore, the revisionist is liable to pay the maintenance @ 40,000/per month from 14.03.2019 till the petition was decided on 23.12.2022. The argument that has been made on this aspect has less merit for acceptance.

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In the impugned order the calculation has been made. Accordingly, the recovery order has been passed. Therefore, the impugned order may not be said to be illegal, wrong or improper.

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During the course of hearing, learned counsel for the revisionists would submit that for recovery of the maintenance amount attachment warrants for immovable property has been issued, which is bad in the eyes of law. It is argued that in the Form 19, which is meant for recovery of maintenance amount, only movable property can be attached. This issue is not involved in the revision. The Court can make reference to it. It is true that Form 19 Schedule II to the Code is for payment of maintenance by attachment and sale and it is restricted to movable property alone.

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The question is, as to whether immovable property cannot be attached in a recovery proceeding under Section 125 of the Code. Before the provision of Section 125 of the Code is discussed, reference to Rule 6 of Rule 5 of the Rules is necessary. It is as follows:-

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6 . Applications to the Magistrate .–(1) ……………….

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(2) ……………………………………………………………….

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(3) …………………………………………………………………

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(4) …………………………………………………………………

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(5) The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973.

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Maintenance order passed on an

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application under Section 12 of the Act, can be enforced as the maintenance, passed under Section 125 of the Act. In this sequel Section 125(3) reads as follows:-

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“(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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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:

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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:

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Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

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A bare perusal of Sub Section (3) of Section 125 of the Code makes it abundantly clear that warrants for recovery of arrears may be issued, as if it is recovery of fine. Recovery of fine is made under Section 421 of the Code. It reads as follows:-

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“ 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—

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( a ) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

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( 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:

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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.

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(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.

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(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

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the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:

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Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.”

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Section 421 of the Code authorizes

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issuance of warrants, attachment and sale of the movable as well as the immovable property. When these lines were dictated, learned counsel for the revisionists would still invite the Court’s attention that the attachment warrant would go to the Collector.

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Undoubtedly, the warrants under Section 421 of Code for attachment and sale of the immovable property is issued through Collector. The fact remains that in view of a conjoint reading of Section 125 with Section 421 of the Code it is abundantly clear that a warrant for attachment and sale of the immovable property can be issued for recovery of arrears of maintenance.

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In view of foregoing discussion, this Court is of the view that there is no merit in the case. Accordingly, the revisions deserve to be dismissed.

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The revisions are dismissed.

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Sanjay

Saurabh Negi v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Saurabh Negi v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

What the court decided

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