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SUPREME COURT OF INDIA
UDAY UMESH LALIT, VINEET SARAN, JJ.
Rakesh Malhotra - Appellant
Versus
Krishna Malhotra - Respondent
Criminal Appeal No(s).246-247 of 2020 (@ SLP (Crl.)Nos. 1248-1249 of 2020 [Diary No(s). 1000 of 2019]
Decided on : 07-02-2020
Criminal Procedure Code, 1973 – Section 125 – Hindu Marriage Act, 1955 – Section 25(2) – Application for maintenance – Maintainability – Whether after grant of permanent alimony under Section 25 of the Act, prayer can be made before Magistrate under Section 125 of Code for maintenance over and above what has been granted by Court while exercising power under Section 25 of the Act – At the stage of passing a decree for dissolution of marriage, Court considers not only earning capacity of respective parties, status of parties as well as various other issues – Determination so made by Court has element of permanency involved in the matter – However, in case there be any change in circumstances, aggrieved party can approach Court under sub-section (2) or (3) and ask for variation/ modification – Since basic order was passed by concerned Court under Section 25(1), by very nature, order of modification/variation can also be passed by concerned Court exercising power under Section 25(2) or 25(3) of Act – Since Parliament has empowered Court under Section 25(2) of Act and kept a remedy intact and made available to concerned party seeking modification, logical sequittor would be that remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance – There can be a situation where considering exigencies of situation and urgency in the matter, a wife initially prefers application under Section 125 of Code to secure maintenance in order to sustain herself – In such matters wife would certainly be entitled to have a full-fledged adjudication in form of any challenge raised before a Competent Court either under the Act or similar such enactments – But reverse cannot be accepted norm – Application preferred under Section 125 of Code shall be treated and considered as one preferred under Section 25(2) of Act. (Paras 8, 10, 11, 15 and 16)
Facts of the case:
Application seeking maintenance under Section 125 Code of Criminal Procedure was preferred by respondent-wife, which was dismissed by 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.
Findings of Court:
Matter that was considered by 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 High Court.
Result : Appeals allowed.
Key Points: - The Court holds that an application under Section 125 CrPC can be treated and considered as one under Section 25(2) of the Hindu Marriage Act. (!) - After grant of permanent alimony under Section 25, a maintenance claim under Section 125 CrPC can be pursued only through the Section 25(2) route, not as a separate Section 125 application, per the preferred interpretation and remedy alignment. (!) - Section 25(2) empowers the court to vary, modify, or rescind a maintenance order upon a change in circumstances, and such modification can be done by the same court exercising powers under Section 25(2) or 25(3). (!) - The decision directs that the 125 CrPC petition be treated as a Section 25(2) petition and that the High Court consider the pending matter within six months. (!) (!) - The appeal was allowed and the High Court’s view was set aside in favor of treating the 125 application as Section 25(2) maintenance proceedings. (!) - The court noted the permanency element in the Section 25 order while allowing modification only upon change in circumstances. (!) (!) - The matter includes additional guidance on evaluating maintenance quantum, accounting for earnings, status, and alimony already awarded, with directions to proceed accordingly. (!) (!)
ORDER :
Delay condoned.
Leave granted.
2. 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.
3. 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.
(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.”
4. 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.
5. 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.”
6. In these
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