The Supreme Court has observed that a petition filed by a wife under Section 125 of the Code of Criminal Procedure who was earlier granted permanent alimony under Section 25 of the Hindu Marriage Act, cannot be entertained.
In this case, the wife's petition seeking divorce was allowed and the appeal against the same was pending before the High Court. The Court, while allowing the divorce petitions, also granted her permanent alimony under Section 25 of the Hindu Marriage Act. In parallel proceedings, the wife also preferred an application for maintenance under Section 125 CrPC. This was dismissed by the magistrate, and the High Court allowed the revision petition against this order.
The issue considered by the Apex Court in appeal thus was whether after grant of permanent alimony under Section 25 of the Act, a prayer can be made before the Magistrate under Section 125 of the Code for maintenance over and above what has been granted by the Court while exercising power under Section 25 of the Act. The bench comprising of Justices Uday Umesh Lalit and Vineet Saran, examined the scope of Section 25 and observed thus:
Section 25(1) of the Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court. At the stage of passing a decree for dissolution of marriage, the Court thus considers not only the earning capacity of the respective parties, the status of the parties as well as various other issues. The determination so made by the Court has an element of permanency involved in the matter. However, the Parliament has designedly kept a window open in the form of subsections (2) and (3) in that, in case there be any change in 5 circumstances, the aggrieved party can approach the Court under sub-section (2) or (3) and ask for variation/ modification. Since the basic order was passed by the concerned Court under Section 25(1), by very nature, the order of modification/variation can also be passed by the concerned Court exercising power under Section 25(2) or 25(3) of the Act.
The judgment in Sudeep Chaudhary vs. Radha Chaudhary [(1997) 11 SCC 286] was relied on by the High Court to grant maintenance to the wife. In the said judgment, the bench noted that, the initial order was passed by the Magistrate under Section 125 of the Code and subsequently in proceedings under the Act, interim maintenance was granted while exercising power under Section 24. It was in that context it was observed that despite the award of maintenance under Section 125 of the Code, the wife was competent to maintain the proceedings under Section 24 of the Act. But the present case is completely to the contrary, observed the bench and said thus:
Since the Parliament has empowered the Court under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act or similar such enactments. But the reverse cannot be the accepted norm.
The bench then set aside the High Court order and directed that the application preferred under Section 125 of the Code shall be treated and considered as one preferred under Section 25(2) of the Act.
Case name: RAKESH MALHOTRA vs. KRISHNA MALHOTRACase no.: Criminal Appeal No(s).246-247/2020Coram: Justices Uday Umesh Lalit and Vineet SaranCounsel: Advocates Abhay Gupta and Fauzia Shakil
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