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High Court Of Rajasthan
Judgename : N.L.Tibrewal
MADAN - Appellant
Versus
STATE OF RAJASTHAN - Respondent
S. B. Cri. Misc. Petition 412 Of 1991
Decided On : 08/28/1992
(ii) Criminal Procedure Code, 1973- Sections 125 and 127 (2) - Obligation of the Magistrate to cancel or vary the order of maintenance according to the decision of a competent Civil Court - Order of cancellation normally is effective prospectively - Marriage of petitioner declared nullity by order dated 16.2.1990 Earlier Magistrate had granted maintenance in favour of respondent on 8.2.1990 - Petitioner moved an application on 3.1.1991 for cancellation of maintenance - Non-petitioner is entitled to get maintenance allowance till 3.1.1991.
Result: Petition allowed accordingly.
Certainly. Here are the key points derived from the provided legal document:
The case concerns whether a wife is entitled to maintenance under section 125 of the Criminal Procedure Code (Cr. P.C.) when her marriage is voidable and has been annulled by a decree of nullity under the Hindu Marriage Act (!) (!) .
The facts involve a marriage where both parties were minors. The wife sought maintenance under section 125 Cr. P.C., which was granted before the marriage was annulled by a civil court decree of nullity (!) (!) .
The civil court declared the marriage null and void under the Hindu Marriage Act, which affects the wife’s status and her entitlement to maintenance under section 125 Cr. P.C. once the marriage is declared void (!) (!) .
Section 125 Cr. P.C. defines a wife to include a woman who has been divorced and has not remarried. However, once a marriage is annulled by a decree of nullity, the woman no longer remains a wife for the purposes of section 125 (!) (!) .
The law provides that the Magistrate must cancel or vary maintenance orders in accordance with the decision of a competent civil court, especially when the marriage is declared null and void. The order of maintenance is generally effective prospectively from the date of the civil court’s decision (!) (!) (!) .
In this case, the civil court’s decree of nullity rendered the marriage void ab initio, and the wife’s entitlement to maintenance under section 125 Cr. P.C. ceased from the date of that decree. The Magistrate’s earlier order of maintenance was therefore to be canceled from that date (!) (!) (!) .
The distinction between void and voidable marriages is significant: a void marriage is considered non-existent from the outset, whereas a voidable marriage remains effective until annulled. Once annulled, the marriage is treated as never having existed (!) (!) .
The argument that a woman in a voidable marriage should continue to be entitled to maintenance even after annulment was rejected. The legal effect of annulment is that she no longer retains the status of a wife (!) (!) .
The court clarified that the benefit of maintenance under section 125 Cr. P.C. is contingent upon the continued marriage status. Once the marriage is declared null and void, the entitlement to maintenance ceases from the date of the civil court’s decree (!) (!) .
The order of cancellation of maintenance should normally be prospective, taking effect from the date the civil court’s decree of nullity is passed. In this case, the maintenance allowance was to be paid up to the date of the civil court’s order, and thereafter, the order was to be canceled (!) (!) .
The petition was partially allowed, with the order of the Magistrate modified to reflect that the wife was entitled to maintenance up to the date of the civil court’s decree, after which the order was canceled (!) (!) .
These points summarize the legal reasoning and the outcome based on the marriage’s annulment and its impact on the entitlement to maintenance under section 125 Cr. P.C.
N. L. TIBREWAL, J.
( 1 ) AN important question of general importance has been raised in the present petition which has been filed u/s. 482 Cr. P. C. by the husband in a proceeding u/s. 125 Cr. P. C. The question which calls for consideration is whether a wife is entitled to get maintenance u/s. 125 Cr. P. C. even her marriage was voidable and annulled by a decree of nullity u/s. 12 of the Hindu Marriage Act?
( 2 ) IN order to appreciate the controversy involved in the present case, the necessary facts may be given. Non-petitioner Smt. Uganti was married to the petitioner when both of them were minors. Thereafter, she moved an application u/s. 125 Cr. P. C. for grant of maintenance which was allowed by the learned Munsif and Judicial Magistrate, Hindauncity on Feb. 8, 1990, and the husband was directed to pay her maintenance allowance at the rate of Rs. 400/- per month from the date of filing the application. For the arrears of the maintenance, three instalments were fixed by the Magistrate, but, it appears that the petitioner (husband) did not pay any amount towards the maintenance inspite of the order of the Magistrate.
( 3 ) DURING the pendency of the maintenance, proceedings, the husband petitioner filed a petition u/s. 12 of the Hindu Marriage Act to annual the marriage by a decree of nullity, and this petition was allowed, though by an ex-parte order, by the court of Addi. District Judge, Kerauli dated 16. 2. 1990.
( 4 ) IN the background of the above facts, the wife moved an application under sub-section (3) of Section 125 Cr. P. C. to issue a warrant for realisation of the maintenance allowance and sentence the petitioner to imprisonment if the maintenance amount is not paid. The petitioner husband also moved an application under subsection (3) of Section 127 Cr. P. C. to cancel the order granting maintenance.
( 5 ) TO resolve the controversy raised in the petition, it is necessary to consider the relevant provision of the Code of Criminal Procedure and Hindu Marriage Act, 1955. Chapter IX of the Code provides for maintenance of wives, children and parents and the procedure of the same. D/s. 125, if the wife is neglected or refused to be maintained by her husband, and she is unable to maintain herself, the Magistrate may order her husband to make a monthly allowance for the maintenance of his wife, at such a monthly rate not exceeding 500/- rupees in the whole. Then, sub-section (3) provides for the recovery of maintenance allowance due and also to sentence the husband to imprisonment if the maintenance allowance is not paid after the execution of the warrant. The explanation given u/s. 125 defines the wife as wifet includes a woman who has been divorced by or has obtained divorce from her husband and has not remarried. Section 126 sides the procedure of the proceedings under this Chapter. In Section 127 empowers the Magistrate to alter or cancel order passed by him u/s. 125 Cr. P. C. under some circumstances, section (2) and sub-section (3) of Section 127 are relevant the present petition and they are reproduce, as under: p127 Alteration in allowance. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Sec. 125 should be cancelled or varied, he shall cancel the order, or as the case may be, vary the same accordingly. (3) Where any order has been made under Sec. 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that (a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her marriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, (i) in the case where such sum was paid before such order, from
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