Ashok Yeshwant Samant v. Smt. Suparna Ashok Samant & Anr., 1991 CriLJ 766, (Husband is not bound to deposit amt. of arrears of maintenance when appeals)

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Citation:1991 CriLJ 766

Petitioner: Ashok Yeshwant Samant

Respondent: Smt. Suparna Ashok Samant & Anr.

Bench: J. S Puranik

Introduction:

The case is an important remark on how husbands cannot be compelled to deposit the amount of arrears as maintenance as a condition precedent to follow up with the application and various of these provisions which are relevant in such forms of appeal are dealt by Code of Criminal Procedure under Sec. 125 (3) and Sec. 127 which talks of recovery of the said amount. The  petitioner in the instant case however was not aware of ex-parte order directing him to pay maintenance to his wife and gives point of view of HC dealing with the situation.

Facts:

• The Respondent filed a suit u/s 125 of Code of Criminal Procedure claiming maintenance from petitioner in 1979. The proceedings were decided in absentia of husband and an order awarding maintenance of ₹500/- per month was passed in favour of wife. He was not intimated about this order hence he failed to pay the said amount of maintenance. The wife approached the trial court u/s 125(3) of Cr.P.C. for recovery of awarded amount along with attachment of property of petitioner.
• Petitioner was sentenced to imprisonment but since payment of arrears were due and in default, he had to suffer a subsequent imprisonment. On 1^st December,1987 the petitioner filed an application u/s 127(1) of Cr.P.C seeking modification in maintenance awarded which was served to respondent. The counsel for the respondent relied on the judgement of SC in Smt. Kuldip Kaur v. Surinder Singh[1] and urged that present petition must be stayed and followed.
• However the petitioner contended that relies case is only  important to the extent of deciding the liability of husband against whom the maintenance amount has been awarded cannot be waived off merely because he suffered imprisonment for default of arrears and not in circumstances of the present case. Since revision came into picture, High Court’s jurisdiction under Art. 227 of Constitution was reiterated and that this shall not be carried out on any assumptions. Bombay HC took further charge of the suit.

Issue:

• Whether recovery u/s 125(3) independent of section 127 of Cr.P.C?

Contentions of Petitioner:

1. It was found out by the petitioner that the circumstances had so altered that it was necessary to get the order of maintenance modified in view of the changed circumstances. The application was preferred on 1st December, 1987 and was in fact under consideration of the trial Court.
2. They also urged that both the Courts below have completely misunderstood the case and have not applied their mind to the pleadings of the petitioner in his application u/S. 127 for modification. He also contended that the case law relied upon by the Courts namely the judgment of the Supreme Court in was not at all applicable in the facts and circumstances of the present case.
3. The said case merely decides that the liability of the husband against whom the maintenance amount has been awarded is never wiped out merely because he has suffered jail sentence for default of arrears.

Contentions of Respondent:

1. The respondent had filed her say and evidence of the petitioner and his witnesses had also been recorded and the respondent had entered the witness box. During these proceedings the respondent/wife had filed an application for recovery of arrears for the period 1st January, 1985 to 29th February, 1988.
2. Having done so she did not also ask the recovery proceedings to be taken up first, but continued with the petitioner’s proceedings for modification.

Judgement:

Since the application preferred on 1^st December, 1987 was under consideration in trial court, the HC observed that petitioner in reply to the recovery had shown sufficient cause in writing which he could have mitigated with reasonable evidences. Both the courts failed to look into the pleadings which were available on record. There is no provision both in Sec. 125(3) or Dec  127(1) of Cr.P.C that enables trial judge to go ahead with applications on deposit condition of either a part or entire amount of arrears. The inherent powers are only vested with High Court under Section 482 and in absence of any such provision  it was incorrect on the part of trial judge to direct the petitioner to deposit arrear amount as a condition precedent. Therefore the orders which although are concurrent in nature were directed to be quashed. The parties can adduce evidence and the court by a common order will dispose off the applications within three months.

Conclusion:

So this gives the impression that recovery under Sec. 125(3) are independent of Sec. 127, thus husband cannot be directed to deposit the arrear as condition to proceed with his application of Sec. 127 of the Code. It is also believable that ordinarily this Court would not exercise its writ jurisdiction if the two Courts below have passed concurrent orders on facts and law. But it can never be said that merely because a second criminal Revision is barred under the Code of Criminal Procedure, the High Court’s jurisdiction under Art. 227 of the Constitution is extinguished and it also cannot be said since it is only for purposes of circumventing the bar that a petition under Art. 227 is preferred in this Court.

[1] Kuldip Kaur v. Surinder Singh (1989) AIR 232

This article is written by Gargi Nagpal, IV Semester, Alliance School of Law intern under Legal Vidhiya

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