Full Judgment
N.L. Tibrewal, J.
1. The petitioner has filed this petition under Section 482, Cr.P.C. with a prayer to quash the pending proceedings under Section 125, Code of Criminal Procedure in the Court of Munsiff and Judicial Magistrate Baman was. The necessary facts leading to the present petition may be narrated, in brief, as under :-
The wife non-petitioner filed petition under Section 125, Cr.P.C. in the Court of Munsiff and Judicial Magistrate, Bamanwas on June 5, 1992. Vide order dated January 13, 1993, the learned Magistrate granted interim maintenance at the rate of Rs. 350/- per month from September 16, 1992. During pendency of the above petition, the parties filed a petitioner in the Court of District Judge, Alwar seeking dissolution of the marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955. This petition was moved on 14.10.1993 and it was duly verified by the Court. On the basis of mutual agreement a decree of divorce was granted by the learned District Judge under Section 13B of the Hindu Marriage Act. The petitioner also paid Rs. 55,000/- to non-petitioner wife as gross sum for her permanent alimony and maintenance and this fact was categorically mentioned in the petition, affidavit of the wife and the order granting divorce passed by the learned District Judge. The wife has also admitted before the District Judge to have received Rs. 55,000/- as gross sum towards her maintenance. In view of the aforesaid facts and the order and on decree of divorce by mutual consent between the parties, the petitioner moved an application before the learned Magistrate to drop the proceedings under Section 125, Cr.P.C. The learned Magistrate, however, rejected the said application vide order dated, May 26, 1994. Hence this petition under Section 482, Cr.P.C.
2. It was contended by Mr. Gupta, learned Counsel for the petitioner, that after having paid a gross sum of Rs. 55,000/- towards maintenance to the wife under Section 25 of the Hindu Marriage Act, the present petition under Section 125, Cr.P.C. does not survive. Learned Counsel contended that order of the Civil Court has an over-riding effect on the proceedings under Section 125, Cr.P.C. which is of summary nature. Mr. Gupta also pointed out that approach of the learned Magistrate in rejecting the prayer for dropping the proceedings under Section 125, Cr. P.C. is erroneous when he observed that the petitioner should not have paid Rs. 55,000/- to the wife as gross sum towards maintenance without prior withdrawal of the petition Under Section 125, Cr. P.C. pending in the Court of the learned Magistrate.
3. In my view the contentions made by Mr. Gupta have merit and deserve to be accepted. The proceedings under Section 125, Cr. P.C. are of a summary nature, whereas the proceedings in the Civil Court are substantial. A Criminal Court cannot sit in appeal over the decision of a Civil Court and a decision of the Civil Court in relation to maintenance is binding in a proceeding under Section 125, Cr. P.C. As stated above Section 125 prescribes a summary procedure and the findings in such proceedings are not final. The parties can still agitate their rights in a Civil Court. On the other hand a decree or an order of a Civil Court is binding on a Criminal Court. Once a gross sum towards permanent alimony and maintenance is paid to a wife under Section 25 of the Hindu Marriage Act, the proceeding under Section 125, Cr. P.C. does not survive after the order of the Civil Court. Section 25 of Hindu Marriage Act reads under :
'25. Permanent alimony and maintenance.
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just.'
4. The above section makes it clear that a gross sum towards permanent alimony and maintenance can be paid to the wife and if any party wants any change in the order he/she can approach to the concerned Court as provided in Sub-section (2) and Sub-section (3) empowers the Court to partly vary, modify or rescind any such order.
5. In view of this, after judgment and order of the Civil Court whereby a decree of divorce was granted and Rs. 55,000/- were paid as gross sum towards permanent alimony and maintenance of the wife, the present petition under Section 125, Cr. P.C. does not survive.
6. Consequently, this petition is allowed. The impugned order of the Magistrate is hereby set aside and the pending proceedings under Section 125 Cr.P.C. in his Court are dropped. The interim maintenance as per order of the Magistrate dated January 13, 1993 shall be payable upto the order and decree passed by the Civil Court, i.e., October 15, 1993.