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2015 Supreme(MP) 801
MADHYA PRADESH HIGH COURT
Rohit Arya, J.
Mohan Swaroop Chauhan v. Smt. Mohini Chauhan
Writ Petition No.1835 of 2014 (Gwalior) : against the order dated 4.3.2014, passed by Additional Principal Judge, Family Court, Gwalior; Decided on 7.8.2015.
Prashant Sharma for petitioner;
Vivek Khedkar for respondent.
Headnote:Criminal P.C., 1973 -- Ss.125(4), (5) and 127 -- Hindu Marriage Act, 1955 -- Ss.25 and 13 -- Constitution of India -- Arts.227, 15(3) and 39 -- application for adjustment of amount deposited under section 125 of Code, 1973 against decretal amount of permanent alimony -- rejected by Family Court -- challenged -- permanent alimony awarded in decree of divorce challenged by petitioner in first appeal which was dismissed already by Division Bench, Gwalior -- and found no fault with grant of permanent alimony in addition to maintenance under -- order of maintenance shall continue to operate until vacated or altered -- and its validity survives -- no plea of either of cohabitation or compromise can hold good as a valid defence to order passed -- amount awarded under section 125 of Code, 1973 -- can be adjusted against amount awarded in metromonial proceedings -- but there is no thumb rule to adjust amount to be granted in each and every case -- contentions to advanced are misconceived and deserve rejection -- impugned order not suffered by any illegality or jurisdiction error -- petition dismissed.
Held : An order of maintenance under section 125 CrPC against the person shall continue to operate until vacated or altered in terms of the provisions as contemplated under section 125(4) and (5) or section 127 of the Criminal Procedure Code, as it is open to the person to initiate proceedings for its variation or cancellation under the circumstances enumerated in the aforesaid provision, but until the original order for maintenance is modified or cancelled by the higher Court or is varied or vacated in terms of Section 125(4) and (5) or section 127 CrPC, its validity survives. It is enforceable and no plea of either of cohabitation or compromise can hold good as a valid defence to the order passed. AIR 1979 SC 442, (2011)13 SCC 112, AIR 1975 SC 83 and AIR 1999 SC 536 referred to. (2013)2 SCC 114 followed.
naM izfØ;k lafgrk] 1973 && /kkjk 125¼4½] ¼5½ rFkk 127 && fganw fookg vfèkfu;e] 1955 && /kkjk 25 rFkk 13 && Hkkjr dk lafo/kku && vuq-227] 15¼3½ rFkk 39 && LFkk;h fuokZg&O; dh fMØh ls lacaf/kr jde ds fo#} lafgrk] 1973 dh /kkjk 125 ds v/khu fu{ksfir jde ds lek;kstu ds fy, vkosnu && dqVqaac U;k;ky; }kjk [kkfjt && vk{ksfir && fookg&foPNsn dh fMØh esa vf/kfu.khZr LFkk;h fuokZg&O; ;kph }kjk izFke vihy esa vk{ksfir tks fd [kaM U;k;ihB] Xokfy;j }kjk igys&gh [kkfjt && rFkk mica/kksa ds v/khu Hkj.k&iks"k.k ds vfrfjDr LFkk;h fuokZg&O; ds eatwj gksus esa dksbZ =qfV ugha ikbZ && Hkj.k&iks"k.k dk vkns'k izofrZr gksuk tkjh jgsxk tc rd fd jn~n ;k ifjofrZr ugha dj fn;k tkrk rFkk bldh oS/krk cph jgrh gS && lgokl ;k le>kSrk dk dksbZ Hkh vfHkokd~ ikfjr vkns'k ds fy, fof/kekU; cpko dh rjg leqfpr ugha Bgjk;k tk ldrk && lafgrk] 1973 dh /kkjk 125 ds v/khu vf/kfu.khZr jde && fookg&fo"k;d dk;Zokfg;ksa esa vf/kfu.khZr jde ds fo#} lek;ksftr gks ldrh gS && ysfdu gj ,d ekeys esa jde lek;ksftr djus ds fy, eatwj gksuk dksbZ O;ogkfjd ugha && bl izdkj izLrqr izfrfojks/k mfpr :i ls fopkj ugha fd;k x;k rFkk [kkfjth ;ksX; gS && vk{ksfir vkns'k fdlh voS/krk ;k vf/kdkfjrk =qfV ls xzflr ugha && ;kfpdk [kkfjtA
vfHkfu/kkZfjr % naM izfØ;k lafgrk dh /kkjk 125 ds v/khu Hkj.k&iks"k.k vkns'k dk O;fDr ds fo#} izorZu tkjh jgsxk tc rd fd mica/kksa ds fuca/kuksa ds vuqlkj tSlk fd naM izfØ;k lafgrk dh /kkjk 125¼4½ rFkk ¼5½ ;k /kkjk 127 esa vuq/;kr gS] jn~n ;k ifjofrZr ugha dj fn;k tkrk] D;ksafd ;g O;fDr ds fy, blds :i Hksn ;k jn~n fd, tkus ds fy, iwoZ dfFkr mica/k esa izxf.kr ifjfLFkfr;ksa ds v/khu dk;Zokgh izkjaHk djus ds fy, [kqyk gS ijarq tc rd Hkj.k&iks"k.k dk ewy vkns'k mPp U;k;ky; }kjk mikarfjr ;k jn~n ugha fd;k tkrk ;k naM izfØ;k dh /kkjk 125¼4½ rFkk ¼5½ ;k /kkjk 127 ds fuca/kuksa ds vuqlkj Qsj&Qkj ;k jn~n ugha fd;k tkrk bldh oS/krk cph jgrh gSA ;g ykxw djus ;ksX; gS rFkk lgokl ;k le>kSrk dk dksbZ Hkh vfHkokd~ ikfjr vkns'k ds fy, vPNk fof/kekU; cpko dh rjg ugha Bgjk;k tk ldrkA , vkb vkj 1979 ,l lh 442] ¼2011½ 13 ,l lh lh 112] , vkb vkj 1975 ,l lh 83 rFkk , vkb vkj 1999 ,l lh 536 fufnZ"VA ¼2013½ 2 ,l lh lh 114 vuqlfjrA
1. By this Writ Petition under Article 227 of the Constitution of India challenge is made to the order dated 4.3.2014 passed by the Additional Principal Judge, Family Court, Gwalior, dismissing the application dated 4.9.2013 for adjustment of the amount deposited in the Family Court, Jhansi under section 125 of CrPC at the rate of Rs.12,000/- per month in favour of respondent-applicant and two children against the decreetal amount of permanent alimony under section 25 of the Hindu Marriage Act (hereinafter referred to as ‘the Act’) at the rate of Rs.10,000/- per month, as ordered in the divorce decree.
2. Facts relevant and necessary for disposal of the writ petition are in narrow compass. The Additional Principal Judge, Family Court, Gwalior, vide judgment and decree dated 10.9.2010 in Case No.25-A/2010 HMA awarded decree of divorce under section 13 of the Act to petitioner Mohan Swaroop Chauhan (husband) and granted permanent alimony to respondent-Smt. Mohini Chauhan (wife) at the rate of Rs.10,000/- per month.
3. First Appeal No.251/2010 (Mohan Swaroop Chauhan v. Smt. Mohini Chauhan) was preferred by the petitioner/husband against grant of permanent alimony under section 25 of the Act and First Appeal No.267/2010 (Smt. Mohini Chauhan v. Mohan Swaroop Chauhan) was preferred by respondent/wife against the decree of divorce under section 13 of the Act. Both appeals were heard analogously and decided vide judgment and decree dated 9.4.2013 by the Division Bench of this Court.
4. Wife Smt. Mohini Chauhan after arguing for a while before the Division Bench expressed her wish not to challenge the decree of divorce. Accordingly, First Appeal No.267/2010 preferred by Smt. Mohini Chauhan was dismissed as not pressed.
5. The Division Bench while addressing upon the challenge made to the judgment and decree dated 10.9.2010 on the question of grant of permanent alimony at the rate of Rs.10,000/- per month under section 25 of the Act has dealt with in detail various relevant facts for reaching the conclusions that :
(i) the respondent wife Smt. Mohini Chauhan has any source of income (para 12 of the judgment);
(ii) income of the petitioner/husband Mohan Swaroop Chauhan is found to be Rs.35,000/- per month (para 19 of the judgment);
(iii) maintenance amount of Rs.12,000/- per month granted by the Family Court, Jhansi, under section 125 CrPC is for the respondent/wife and her two daughters residing with her: it is relevant to mention that the order passed by the Family Court, Jhansi has also been confirmed by the High Court of Allahabad vide order dated 3.4.2012 dismissing the Criminal Revision No.4854/2009;
(iv) it has, therefore, been held that respondent/wife’s share was Rs.4,000/- per month (para 20 of the judgment);
(v) the Division Bench though by referring to the judgment cited by learned counsel for the petitioner viz. Sudeep Chaudhary v. Radha Chaudhary [AIR 1999 SC 536], held that amount under section 125 CrPC can be adjusted against the amount awarded in the matrimonial proceedings, however, in the facts and circumstances of the case has held that there cannot be a thumb rule that in each and every case such adjustment has to be granted;
(vi) the Division Bench further elaborated the concept, object and purpose of grant of permanent alimony drawing guidance by the judgment of Hon’ble Supreme Court in the case of U. Sree v. U. Srinivas [(2013)2 SCC 114], and held that there cannot be any arithmetical formula of mathematical exactitude and it depends on various facts viz. social status, family background, financial capacity of husband and such other relevant facts; and,
(vii) thereafter, in para 22 the Division Bench has concluded its findings as under :
“22. As noticed earlier, the appellanthusband is working as accountant in a private company, he owns a car as well as house, he advanced loan to his mother-in-law and brother-in-law, his daughters have passed MCA and BCA from a college, he himself agreed to pay Rs.10,000/- per month in t
