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RAJASTHAN HIGH COURT, Jaipur Bench
Honble M.A.A. KHAN, J.
Vasudev Pardasani - Appellant
Versus
Smt. Nirmala - Respondents
S.B. Criminal Misc. Revision Petition No. 409 of 1995
Decided On : May 27, 1996
The words ``his wife occurring in the language of Clause (b) of Sub-Section (1) of Section 126 were not there in the language of old Section 488 of the Old Code of Criminal Procedure. The change brought about in the language of the corresponding section of 125 of the New Code of Criminal Procedure clearly expresses the legislative intention to confer the jurisdiction of hearing the matters falling within the purview of Section 125 upon the Court of the District where the wife resides. (Para 10)
The expression ``within a period of one year from the date on which it became due used in the language of the First Proviso to Section 125(3) pre-supposes the existence of an order u/s. 125 (3) and the period of limitation of one year is to commence from the date of such order for the recovery of the amount of maintenance granted under such order. The amount granted under such order may relate to the arrears of the maintenance allowance which got accumulated during the pendency of the application in the court. The provisions contained in sub-section (2) of Section 125 take care of that situation. Section 125(2) provides that ``such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
The ordinary rule is that the order made by the Magistrate would become effective from the date on which it was made. However, it may be made effective retrospectively from the date of the application in which case the Magistrate is required to pass a specific order. (Para 12)
The interpretation of the words ``issue a warrant for levying the amount due made in the manner stated above would not only be in conformity with the spirit of sub-sections (1) and (2) of Section 125 but would also do away with the avoidable necessity of presenting application for recovery of the `amount due for every 12 months even during the pendency of an application under Section 125(3) Cr.P.C. By such interpretation of the said words no harm is likely to be caused to the person liable to pay the amount of maintenance as it would in no way add to or increase his liability or obligation under Section 125(1) and instead would do away with the multiplicity of litigation and thus would be beneficial to the parties to the application under Section 125(3) as well as the court concerned. (Para 15)
The term `wife has been used in language of Section 125(1) in a specific sense and meaning. Explanation(b) below the Proviso to sub-section (1) of Section 125 defines the term `wife as used in Chapter IX of the Code of Criminal Procedure 1973, and says that `wife includes a woman who has been divorced, by or has obtained a divorce from, her husband and has not re-married. This definition clearly shows that a divorce does not affect the marital status of a woman and she does not cease to be the wife of the person, she had been married, to for the purposes of Chapter IX of the Code of Criminal Procedure Code 1973 till she remarries after the divorce. (Para 17)
(2). Facts, relevant and sufficient to dispose of all the points of controversy raised through this petition, are these :–
(3). The parties to this petition are Hindu by faith and religion. The petitioner resides at Delhi and the Non-petitioner at Beawar, Distt. Ajmer, Rajasthan. They were married at Beawar on November 14, 1960. The wedlock gave them two children of whom one, born on October 11, 1970, is alive. Since she has become major she has ceased to receive maintenance allowance from the petitioner and there is no dispute between the parties about that.
(4). It appears that differences arose between the parties and their marriage was dissolved by the Civil Court at Delhi on January 17, 1977 on a petition filed u/s. 13 of the Hindu Marriage Act 1956 by the petitioner. Appeal, being FAO No. 32/77 filed by the non-petitioner in the Delhi High Court against the order of the Civil Court, was also dismissed on August 9, 1977. The petitioner remarried on May 18, 1981 and is stated to be living happily with his second wife and grown up children.
(5). On June 3, 1989 the non-petitioner filed an application u/s 125 Cr.P.C. before the Family Court at Ajmer demanding maintenance for herself and her minor daughter from the petitioner. Allowing such application on October 26, 1991 partly, the Family Court ordered the petitioner to pay to the non- petitioner a monthly allowance for maintenance Rs. 400/- from June 3, 1989 i.e. from the date of the application. The Court further directed that the amount, if any, received by the non- petitioner from the petitioner under any order of the Courts at Delhi by way of maintenance allowance shall be deducted from the amount payable under the order passed u/s. 125 Cr.P.C. The petitioner is said to have made a payment of Rs. 2400/- only towards the maintenance allowance of the non-petitioner upto the date of presentation of the present application u/s. 125(3) by the non-petitioner before the Family Court, Ajmer.
(6). On December 3, 1991 the non-petitioner moved an application u/s. 125 (3) Cr.P.C. before the Family Court, Ajmer demanding the arrear of maintenance allowance from the petitioner from 26.10.91 as per order of the Family Court of the even date as also maintenance allowance @ Rs. 400/- P.M. During the pendency of the application and prayed for recovery and realisation thereof through the attachment and sale of moveable and immoveable properties belonging to the petitioner and/or attachment of his salary. In case of non-recovery of the arrear of the maintenance allowance through those modes prayer for arrest and detention of the petitioner in order to enforce the payment was also made.
(7). The petitioner, besides opposing the application of the non- petitioner u/s. 125 (3), Cr.P.C. as aforementioned, moved three applications, as mentioned above. The common pleas raised by the petitioner in opposition to non-petitioners application as also through his aforementioned three applications were that the Family Court at Ajmer had no territorial and/or pecuniary jurisdiction in the matter, that the claim for arrears of maintenance allowance was barred by limitation, that recovery of the arrears of the maintenance allowance cannot be effected through attachment of petitioners salary and that the non-petitioner has ceased to be his wife as the daughter living with her had added the surname of `JOTWANI to her name. The learned Judge, Family Court, by his impugned judgment and order, dismissed all the objections of the petitioner sa
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