Law Web: Whether wife is entitled to get maintenance U/S 125 of CRPC if she is granted permanent alimony?

Since the Parliament has empowered the Court under Section

25(2) of the Act and kept a remedy intact and made available to the

concerned party seeking modification, the logical sequittor would

be that the remedy so prescribed ought to be exercised rather than

creating multiple channels of remedy seeking maintenance. One can

understand the situation where considering the exigencies of the

situation and urgency in the matter, a wife initially prefers an

application under Section 125 of the Code to secure maintenance in

order to sustain herself. In such matters the wife would certainly

be entitled to have a full-fledged adjudication in the form of any

challenge raised before a Competent Court either under the Act or

similar such enactments. But the reverse cannot be the accepted

norm.

In the circumstances, we allow these appeals, set aside the

view taken by the High Court and direct that the application

preferred under Section 125 of the Code shall be treated and

considered as one preferred under Section 25(2) of the Act.

Since the matter pertains to grant of maintenance.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s).246-247/2020

RAKESH MALHOTRA Vs KRISHNA MALHOTRA

Dated:February 7, 2020

Delay condoned.

Leave granted.

These appeals arise out of the Judgment and Final Order dated

14.12.2017 passed by the High Court of Madhya Pradesh, Bench at

Gwalior in Criminal Revision No.807/2014 and also out of the Order

dated 02.05.2018 in Misc. Crl. Case No.4414 of 2018.

In the present case, in matrimonial proceedings initiated by

the respondent-wife seeking dissolution of marriage under Section

13(1)(i-a) & (i-b) Hindu Marriage Act, 1955 [“the Act” for short] ,

decree for dissolution was passed by the Court of First Additional

District Judge, Vidisha (M.P.) in Case No.87-A/2011 to the

following effect:

“ (a) Marriage solemnized between petitioner Rakesh

Malhotra and respondent Smt. Krishna Malhotra on 21.09.1999

is declared dissolved after expiry of limitation period.

After expiry of limitation period of appeal, petitioner and

respondent would not remain husband and wife any more.

(b) In compliance of the order dated 23.01.2012 passed by

the Hon’ble M.P. High Court, Gwalior Bench in Writ Petition

No.6762/11 Rakesh Malhotra versus Smt. Krishna, in case

amount of maintenance allowance payable during pendency of

the case is due, petitioner would pay the same within the

period of one month.

for second marriage, petitioner would pay Rs.13,750/- per

month to respondent by 05th of each month throughout her

life.”

The aforesaid decree passed on 20.02.2013 is presently subject matter of challenge

before the High Court in First Appeal No.109/2013. Said appeal is still pending consideration

before the High Court.

It must be stated that sometime in 2005, application seeking maintenance under

Section 125 Code of Criminal Procedure [“the Code”, for short] was preferred by the

respondent-wife, which was dismissed by the concerned Court vide order dated 30.06.2014.

The challenge was raised by the respondent-wife against such rejection by way of Criminal

Revision No.807/2014. Said revision was allowed by the High Court by its order dated

14.12.2017 which is presently under appeal. While considering the claim made by the

respondent-wife, the High Court observed as under:-

“8.5 So far as the question of quantum of maintenance

is concerned, the respondent has stated in his evidence

that his gross monthly income is Rs.44,000/-, out of which

an amount of Rs.24,000/- is being deducted and his take

home salary is Rs.20,000/-. The respondent has not placed

his salary slip on record to show that under which head the

amount of Rs.24,000/- is being deducted. Voluntary

deduction under different heads and compulsory/statutory

deduction are two different things. For determining the

take home salary, voluntary deductions cannot be taken into

consideration because in some of the cases like loan or

finance it can be said that the husband has already taken

his salary in advance in the form of loan, which he is now

repaying in the form of loan deductions, however, the

compulsory deductions are beyond the control of an

employee. Since in the present case the respondent has not

placed his salary slip on record, therefore, an averse

inference has to be drawn against him and it has to be

presumed that out of total deduction amount of Rs.24,000/-,

most of the deductions must be the voluntary deductions.

Furthermore, as the applicant has already been awarded an

amount of Rs.13,750/- per month by way of permanent alimony

and that part of the judgment has not been stayed by this

Court, therefore, taking into consideration the amount of

Rs.13,750/-, which has been awarded to the applicant by

way of permanent alimony and considering the status of the

parties, price index, price of goods of daily needs,

inflation rate etc. , it is directed that the applicant

shall be entitled for a further amount of Rs.5,000/- per

month. The said amount shall be payable by the

respondent/husband from 30.06.2014, i.e. the date on which

the application filed by the applicant was rejected by the

court below.”

In these appeals challenging the decision of the High Court,

notice was issued to the respondent. However, no appearance was

entered on behalf of the respondent-wife and as such Ms. Fauzia

Shakil, learned advocate was requested to assist the Court as

amicus curiae which request she graciously accepted.

We heard Mr. Abhay Gupta, learned advocate in support of the

appeals and Ms. Fauzia Shakil, amicus curiae.

The basic issue that arises for consideration is whether after

grant of permanent alimony under Section 25 of the Act, a prayer

can be made before the Magistrate under Section 125 of the Code for

maintenance over and above what has been granted by the Court while

exercising power under Section 25 of the Act. At this juncture,

Section 25 of the Act may be extracted as under:-

“25 Permanent alimony and maintenance .

(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 shall 55 [***] 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 applicant 56 [, 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.

(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.

(3) If the court is satisfied that the party in whose

favour an order has been made under this section has remarried

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].”

Section 25(1) of the Act empowers the Court, while passing

any decree, to consider the status of the parties and whether any

arrangement needs to be made in favour of the wife or the husband;

and by way of permanent alimony, an order granting maintenance can

also be passed by the Court.

At the stage of passing a decree for dissolution of marriage,

the Court thus considers not only the earning capacity of the

respective parties, the status of the parties as well as various

other issues. The determination so made by the Court has an

element of permanency involved in the matter. However, the

Parliament has designedly kept a window open in the form of subsections

(2) and (3) in that, in case there be any change in

circumstances, the aggrieved party can approach the Court under

sub-section (2) or (3) and ask for variation/ modification.

Since the basic order was passed by the concerned Court under

Section 25(1), by very nature, the order of modification/variation

can also be passed by the concerned Court exercising power under

Section 25(2) or 25(3) of the Act.

In the present case, the matter that was considered by the

High Court was one which was filed in the year 2005 when the

matrimonial dispute between the parties was yet to be adjudicated

upon while the decree for dissolution and direction for permanent

alimony came to be passed in the year 2013 against which the First

Appeal is pending in the High Court.

We have been apprised that certain applications have been

preferred by the appellant-husband seeking variation/modification

in the sum of permanent alimony submitting, inter alia, that after

passing of the order, the appellant has retired from Army and as

such is not getting emoluments at the same rate.

Ms. Shakil, amicus curiae invited our attention to some

decisions including the decision of this Court in Sudeep Chaudhary

vs. Radha Chaudhary [(1997) 11 SCC 286]. This decision was relied

upon by the High Court while passing the order under appeal. In

Sudeep Chaudhary, the initial order was passed by the Magistrate

under Section 125 of the Code and subsequently in proceedings under

the Act, interim maintenance was granted while exercising power

under Section 24. It was in the context of these facts, this Court

observed that despite the award of maintenance under Section 125 of

the Code, the wife was competent to maintain the proceedings under

Section 24 of the Act. But the present case is completely to the

contrary.