1. Application for maintenance under Section 125 CrPC by wife and minor daughter — denial of maintenance to wife on grounds of marital status. (Para 4 , 5 )
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2019 Supreme(SC) 264
SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
Manik Kutum – Appellant(s)
Versus
Julie Kutum – Respondent(s)
Criminal Appeal No. 448 of 2019 (Arising out of SLP(Criminal) No. 3652 of 2018)
Decided on : 07-03-2019
Advocates Appeared:
For the Appellants :Ms. Seema Sharma, Somiran Sharma, Advocates.
For the Respondent:Sahil Tagotra, Advocate
For the Appellants :Ms. Seema Sharma, Somiran Sharma, Advocates.
For the Respondent:Sahil Tagotra, Advocate
IMPORTANT POINT
Need to remand case to SDJM is called for only when some factual inquiry is required to be held to decide any factual issue involved in the case.
Headnote:Criminal Procedure Code, 1973 – Section 125 – Maintenance – Claimants are wife and minor daughter of appellant – Dispute over factum of marriage – Need to remand case to SDJM is called for only when some factual inquiry is required to be held to decide any factual issue involved in the case which cannot be undertaken at revision stage or when it is noticed that there is no finding on any particular factual issue(s) recorded by SDJM or when additional evidence is filed for first time at appellate/revision stage which requires examination by SDJM in first instance and to record a finding in light of such additional evidence – Such is not the case here because all material for fixing maintenance was on record – High Court having recorded finding of fact in impugned order that respondent-wife is legally wedded wife of appellant, it should not have then remanded the case to SDJM for any inquiry and instead should have fixed maintenance payable by appellant (husband) to respondent (wife) in revision itself – It is more so because respondent is not earning and has no independent source of any income to maintain herself – Appellant is working as Constable in RPF and his monthly salary is between Rs.30,000/- to Rs.35,000/- per month – Appellant (husband) will pay sum of Rs.8,000/- towards maintenance for respondent (wife) and Rs.2,000/- towards maintenance for minor daughter. (Paras 10 to 15)
Facts of Case:
Maintenance case. SDJM partly allowed application and awarded Rs.2000/- per month towards maintenance for her minor daughter but rejected application insofar as it relates to award of maintenance to respondent-wife on the ground that she is not the legally married wife of appellant herein. It is against this order, respondent-wife filed revision in Gauhati High Court. By impugned order, High Court remanded case to SDJM to decide application afresh.
Findings of Court:
Having regard to all facts and circumstances of case, we consider it just and proper to fix Rs. Eight Thousand as monthly maintenance payable by appellant (husband) to respondent (wife).
Result : Appeal disposed of.
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2. Husband challenges High Court's order remanding the maintenance application for fresh inquiry after the High Court had already found the wife to be legally wedded. (Para 2 , 6 , 7 )
3. Remand is unnecessary when factual findings are already recorded and all material for determining maintenance is on record, as it only prolongs litigation. (Para 10 , 11 , 12 )
4. A case should not be remanded for fresh inquiry if the revisional court has already recorded factual findings and the record contains sufficient material for decision. (Para 11 , 12 )
5. Appeal allowed to modify the order; maintenance fixed for the wife in addition to the amount already awarded to the minor daughter. (Para 9 , 14 , 15 , 16 , 17 )
6. When is remanding a case to a trial court justified during revision proceedings?
Remand is justified when a factual inquiry is required that cannot be undertaken at the revision stage, when there is no finding on a particular factual issue, or when new evidence is filed requiring first-instance examination. (Para 12 )
7. Should a revisional court remand a case if it has already recorded a finding of fact?
No. If the revisional court has already recorded a finding of fact and all material for deciding the issue is on record, it should decide the matter itself to avoid prolonging litigation. (Para 11 , 12 )
JUDGMENT
Abhay Manohar Sapre, J.
Leave granted.
2. This appeal is directed against the final judgment and order dated 01.08.2017 passed by the Gauhati High Court at Guwahati in Criminal Revision Petition No.102 of 2012 whereby the High Court while disposing of the Criminal Revision Petition filed by the respondent herein, set aside the order dated 21.11.2011 of the sub-Divisional Judicial Magistrate (SDMJ), Gossaigaon, Assam in Misc. Case No. 28/2009 and remanded the case to the SDMJ to decide the application filed by the respondent herein afresh.
3. A few facts need mention for the disposal of this appeal.
4. The appellant is the husband and the respondent is the wife. The respondent (wife) filed an application under Section 125 of the Code of Criminal Procedure, 1973 claiming maintenance from the appellant (husband) for herself and for her minor daughter.
5. By order dated 21.11.2011, the SDJM partly allowed the application and awarded Rs. 2000/- per month towards maintenance for her minor daughter but rejected the application insofar as it relates to award of maintenance to the respondent-wife on the ground that she is not the legally married wife of the appellant herein. It is against this order, the respondent-wife felt aggrieved and filed revision in the Gauhati High Court.
6. By impugned order, the High Court remanded the case to the SDJM to decide the application afresh. The concluding part of the impugned order remanding the case to SDJM reads as under:
"In view of the impugned order passed by the learned court is hereby set aside. The matter is remanded to the learned trial court to declare the respondent (petitioner in the misc. case) to be the legally married wife of the present petitioner and to decide the quantum of maintenance by recording proper evidence only on the point of income and to award proper maintenance to the petitioner as well as the minor child afresh within a period of three months of receiving the order of this court. In the meantime the petitioner is directed to clear all the arrear maintenance towards the child that was granted earlier by the learned trial court till the court decides the matter afresh."
7. It is against this order, the appellant (husband) has filed this appeal by way of special leave in this Court.
8. Heard Ms. Seema Sharma, learned counsel for the appellant and Mr. Sahil Tagotra, learned counsel for the respondent.
9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to modify the impugned order and fix the maintenance payable by the appellant (husband) to the respondent (wife) in addition to what has already been awarded by the SDJM payable for the minor daughter.
10. In our considered opinion, the High Court erred in remanding the case to the SDJM for fresh inquiry and for fixing the maintenance for the respondent (wife).
11. The High Court having recorded a finding of fact in Para 22 of the impugned order that the respondent-wife is the legally wedded wife of the appellant, it should not have then remanded the case to the SDJM for any inquiry and instead should have fixed the maintenance payable by the appellant (husband) to the respondent (wife) in the revision itself. It is more so because we find that the respondent is not earning and has no independent source of any income to maintain herself.
12. In our view, the need to remand the case to the SDJM is called for only when some factual inquiry is required to be held to decide any factual issue involved in the case which cannot be undertaken at the revision stage or when it is noticed that there is no finding on any particular factual issue(s) recorded by the SDJM or when additional evidence is filed for the first time at the appellate/revision stage which requires examination by the SDJM in the first instance and to record a finding in the light of such additional evidence. Such is not the case here because all the material for fixing the maintenance was on record. It is for t
