Thursday, 13 February 2020

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.
2
(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.
(c) In case respondent Smt. Krishna Malhotra does not go
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
4
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.
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, we request
the High Court to consider disposing of First Appeal No.109/2013
alongwith all pending applications as early as possible and
preferably within six months from today.
Before we part, we must record that by way of order dated
13.12.2019, we had directed the respondent-husband to file an

affidavit giving details about the amounts that he had made over to
the respondent-wife by way of maintenance as awarded by order dated
20.02.2013. In pursuance of said directions, an affidavit has been
filed by the appellant on 03.02.2020 indicating that till now he
has deposited Rs.11,44,916/- in respondent-wife’s account, in terms
of order dated 20.02.2013.
Finally, we must express our sincere gratitude for the
assistance rendered by Ms Fauzia Shakil, learned amicus curiae.
These appeals are allowed in aforesaid terms. No costs.
........................J.
(UDAY UMESH LALIT)
.......................J.
( VINEET SARAN)
New Delhi
February 7, 2020

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