The main legal point established is that an order for maintenance under Section 125 of the Code remains operative until vacated or altered in accordance with the provisions of the Code.

JUDGMENT :

(Ravindra Maithani, J.)

The challenge in this revision is made to the impugned order dated 29.07.2022, passed in Misc. Criminal Case No.105 of 2018, Smt. Seema & Others Vs. Yaspal Singh, by the court of Judge, Family Court, Kotdwara, District Pauri Garhwal (“the case”). By it, an application filed by the revisionists under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) has been rejected on the ground of maintainability.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows: the revisionist no.1 Smt. Seema Devi and the respondent no.2, Yaspal Singh, were married on 07.05.1996. They are blessed with three children. When there was a matrimonial discord, the revisionists filed an application under Section 125 of the Code on 25.03.2010, which was the basis of Maintenance Case No. 30 of 2010, Smt. Seema & Others Vs. Yaspal Singh, in the court of Judge, Family Court, Pauri Garhwal (“the first maintenance case”). The first maintenance case was decided on the basis of a compromise on 11.08.2010, by which the private respondent did agree to pay Rs. 6,000/- per month as maintenance to the revisionists. The private respondent has not been regularly making payment of the maintenance, as agreed between the parties in the first maintenance case. It is therefore, the revisionists filed an application under Section 128 of the Code for recovery of arrears, which was the basis of Misc. Criminal Application No.18 of 2012, Smt. Seema & Others Vs. Yaspal Singh, in the court of Judge, Family Court, Pauri Garhwal (“the recovery case”). The recovery case was finally decided on 20.09.2012 on full satisfaction. It appears that, thereafter, the parties entered into an agreement on 13.06.2015 and both the parties were reunited, but again the relations became strained. The revisionists, thereafter, again filed an application under Section 125 of the Code seeking maintenance, which is the basis of the case.

4. Learned counsel for the parties would submit that evidence was already lead in the case, arguments were heard, but at that stage, an application was filed by the private respondent for rejection of the application under Section 125 of the Code, filed by the revisionists, which was rejected by the impugned order. It has been the case of the private respondent that since the order dated 11.08.2010, passed in the first maintenance case, was in existence, which was still enforceable, the subsequent application, under Section 125 of the Code is not maintainable. This contention was upheld by the impugned order. It is challenged in the instant revision.

5. Today, at the very outset, learned counsel for the revisionists very fairly conceded that in view of the judgment in the case of Bhupinder Singh Vs. Daljit Kaur, (1979) 1 SCC 352, subsequent application for maintenance is not maintainable, but he would submit that the subsequent application filed by the revisionists under Section 125 of the Code, which is the basis of the case, ought not to have been rejected on this technical ground, instead, it could have been treated as an application under Section 127 of the Code, and parties should have been permitted to lead evidence on that aspect. In support of his contention, learned counsel for the revisionists has placed reliance on the principles of law, as laid down in the case of Chauhan Anjanaben Jayantibhai Vs. Chauhan Kanaiyalal Mohanlal, 2011 SCC OnLine Guj 4805.

6. In fact, in the case of Bhupinder Singh (supra), after maintenance order, the husband and wife both were reunited. The short question of law that was pressed before the Hon’ble Supreme Court in that case was that the order of maintenance under Section 125 of the Code is superseded by the subsequent living of the wife with the husband and is unavailable for enforcement. The Hon’ble Supreme Court held that an order remains operative until vacated or altered in terms of the pr