THE HONBLE Dr. JUSTICE B.SIVA SANKARA RAO CRL.R.C. Nos.2188 OF2011AND bach 25-11-2014 A.Tirumal Raj Petitioner Smt. A.Anupama and two others. Respondents Counsel for the petitioner:Sri Suresh Shiv Sagar, Counsel for Respondents 1 to 3: Sri Erranki Phani Kumar. Counsel for Respondent No.4 : Public Prosecutor. ?. Cases referred:
01. 2002(2) SCC42202. AIR1989sc 232 03. 1994(1) ALT Criminal 542 04. 1996-11-13 Laws (HPH) 05. 1972 Crl.J.1270 (A) 06. 1993 DMC (2) 401 (Orrissa) 07. (SLP) Civil-11800 of 2013 (SC), dt.15.03.2013. 08. 1982 Crl.J.2033 (Gujarat) 09. Laws (Mad) 2011(6) page295 10. Civil Appeal No.4666 of 2008 dated 28.07.2008 THE HONBLE Dr. JUSTICE B. SIVA SANKARA RAO CRL.R.C. Nos.2188 OF2011AND959OF2013Common Order:
These revisions are filed by one and the same petitioner against the orders in Crl.M.P. No.1054 of 2010 and Crl.M.P. No.115 of 2013, in M.C. No.274 of 2007, dated 05.08.2011 and 16.04.2013 respectively. 02. The revision petitioner in both the revisions, by name A. Tirumal Raj, is no other than the husband of the revision first respondent and father of revision respondents 2 and 3. The revision first respondent, by name Smt. A. Anupama, for herself and for two minor children, filed M.C. No.274 of 2007 before the Additional Family Court, Hyderabad. The said maintenance case, after full dressed enquiry and on contest by order of the Judge, Additional Family Court, dated 25.02.2009, was allowed. 2(A). The operative portion of the order reads as under: In the result, the petition is partly allowed awarding a sum of Rs.4,000/- each to the petitioners towards their monthly maintenance from the date of the petition i.e. 01.11.2007. The second petitioner is entitled to maintenance till he attains his age of majority and the third petitioner is entitled till her marriage is performed. The respondent is directed to pay the said maintenance amount to the petitioners on or before 10th of every month. The first petitioner is directed to open a savings bank account on any bank of her choice and the respondent is directed to deposit the arrears of maintenance from the date of the petition till the date of the order in the said account and continue to deposit the regular maintenance amount in the said account. 2(B) Thus the maintenance award is @ Rs.4,000/- each to the three petitioners in M.C. No.274 of 2007 from the date of petition i.e. on 01.11.2007.
3. In M.C. NO.274 of 2007 undisputed facts as on date in nutshall are that i) The relationship between the parties from the marriage between MC first petitioner and MC respondent was performed in the year, 1995 under Hindu Law and in their wedlock they blessed with son and daughter, by names Mayuk and Sharanya (MC second and third petitioners) and by the time of filing the maintenance case they were aged 10 and 6 years respectively, pursuing their academics under the care of the mother. ii) Some time thereafter the MC first petitioner filed criminal case under Section 494 of the Indian Penal Code, 1860 (for short, I.P.C.) against the MC respondent (husband), for his alleged performance of second marriage wife one Saritha in Crime No.382 of 2006. iii) She also filed a suit for maintenance @ Rs.4,000/- per month, where interim maintenance was also granted in her favour. iv) Thereafter MC respondent - husband filed restitution of conjugal rights in O.P. No.760 of 2000 and from the wife expressed her willingness to join, the same was allowed by the Court. v) Thereafter she came forward with the maintenance case saying that her husband did not allow to enter the house and the civil suit for maintenance ultimately ended in dismissal from his defence that despite restitution of conjugal rights O.P. filed by him was allowed and even he issued notice, she failed to join his company. vi) On appeal, the High Court confirmed the same in directing the MC respondent to set up separate residence and to provide all means for living together that was complied with by her joining him. vii) Having considered all these, the maintenance case was allowed as referred supra by negating the contentions of the husband that the wife is not entitled to maintenance for no neglect on his part, with the observations particularly in paras 11 to 13 of the order that the petitioners are entitled to maintenance under Section 125 Cr.P.C., for the respondent married another women, by name Saritha, living with her and through said Saritha, he blessed with a baby girl, by name Kumari A. Nityasri covered by Ex.P.58 - birth certificate and the wife is justified in not joining the husband, for his living with said Saritha and blessed with a girl in that living, though not wife and though there is no proof of marriage between them, leave about alleged bigamous marriage, particularly, referring to earlier expression of the Apex Court in Jagdish Jugawat v. Manjulatha , minor son till attaining the age of majority and minor daughter till performance of marriage even became major, are also entitled to maintenance along with wife viii) The D.V.C. No.5 of 2008 filed by the wife against the husband, even allowed by the learned Judge awarding Rs.7,000/- per month, the appeal filed by the husband was closed as withdrawn. ix) During the course of evidence in the maintenance case, the MC first petitioner wife was examined as P.W.1 and placed reliance upon the documents Exs.P.1 to P.59 and MC respondent - husband was examined as R.W.1 and placed reliance upon the documents Exs.R.1 to R.5. x) The MC respondent - husband preferred Criminal Revision case No.575 of 2009 against the said maintenance order dated 25.02.2009 in M.C. No.274 of 2007 before this Court, by order of this Court (another Bench) dated 02.07.2009, the said appeal was partly allowed, modifying the maintenance @ Rs.4,000/- per month confirming to the wife, however, reducing the maintenance to the children i.e. minor son and unmarried daughter (minor) @ Rs.4,000/- to Rs.3,000/- per month. It is, thus, the order in M.C. No.274 of 2004, dated 25.02.2009, is merged with the order in revision case No.575 of 2009, dated 02.07.2009, under which the wife is granted maintenance @ Rs.4,000/- per month and two children each @ Rs.3,000/- per month that is under execution from time to time. xi) It is important to note further that the husband filed Crl. M.P. No.1054 of 2010 for cancellation of the maintenance order in view of order in O.P. No.760 of 2002 for restitution of conjugal rights allowed in his favour on 24.06.2004 and by order, dated 11.05.2006, in O.P. No.594 of 2004 negated the maintenance filed by the wife directing the husband to take a separate residence and asking her to join him for living together. xii) The learned Judge, Additional Family Court, dismissed the application in Crl. M.P. No.1054 of 2010 by order, dated 05.08.2011, with an observation that the orders in O.P. No.760 of 2002 and O.P. No.594 of 2004 were considered in the order, dated 25.02.2009, in M.C. No.274 of 2007, for awarding maintenance in favour of the MC petitioners, thereby he cannot re-agitate the said orders covered by previous proceedings and as such he is not entitled to cancellation of monthly maintenance on the basis of the said orders. xiii) It is impugning the dismissal order in Crl.M.P. No.1054 of 2010, the husband filed the Crl.R.C. No.2188 of 2011.
4. As referred supra, the order in M.C. No.274 of 2007 is merged with the order, dated 02.07.2009, in Crl.R.C. No.575 of 2009, wherein the wife is entitled @ Rs.4,000/- per month and the children each @ Rs.3,000/- per month. 4(a). Therefrom, the wife filed execution application in Crl.M.P. No.115 of 2013 and from the contest on both sides, order was passed on 16.04.2013. The order reads that the application filed by the wife along with two children against the husband for claiming arrears of maintenance Rs.1,00,000/- from January, 2012 to October, 2012 for 10 months (each month @ Rs.10,000/- ) and the husband was served with notice on 12.02.2013, thereby he opposed the petition saying as per the restitution of rights decree, dated 24.06.2004, in O.P. No.760 of 2002, directing the wife to join him, as she failed to join and thereby not entitled to claim maintenance and in support of said contention, he placed reliance upon some expressions of the Apex Court and also claimed that he paid Rs.82,000/- from 10.09.2011 to 10.10.2012. It was observed, after contest, in the order of the learned Judge, Additional Family Court, that the M.C. No.274 of 2007 was allowed subsequently on 25.02.2009 and the same was confirmed with modification of the quantum in Crl.R.C. No.575 of 2009, by order, dated 02.07.2009, as per which the M.C. respondent has to pay Rs.10,000/- per month to the wife and two children and restitution of conjugal rights in O.P. No.760 of 2002 was part of consideration in passing the orders and the wife is justified in not joining the husband after the restitution of conjugal rights order for that facts that he is living with one Saritha and blessed with a child at Vijayameri Hospital, where he signed as father of the child covered by Ex.P.59 hospital record and the birth certificate of the child Nityasri covered by Ex.P.58. She also cross examined him in this regard in the maintenance case and as Section 125 Cr.P.C. explanation enables the same as a just ground for the wife to refuse to live with him, whether he married or living with another women by keeping a mistress, as that was considered in passing the order, dated 25.02.2009, in M.C. No.274 of 2007 and as such on that ground there is no authenticity for him to oppose the execution proceedings. 4(b) On the other ground regarding C.C. No.524 of 2007 filed by wife against him under Section 494 I.P.C., the case ended in conviction, against which there were departmental proceedings against him and he was removed from service by order, dated 10.10.2012, and he claims that he has no employment, and thereby having no means to provide maintenance; that also can be negated for he being an Engineer and got income from other source and got immovable properties and receiving rents from immovable properties and in a position with sufficient means and thereby by negating the said contention and holding him liable for the amount of Rs.1,00,000/- being arrears due, however granted time with installments to pay. 4(c). It is impugning the said order in Crl.M.P. No.115 of 2013, dated 16.04.2013, the husband filed the Crl.R.C. No.959 of 2013.
5. The contentions in the grounds of revision in Crl.R.C. No.959 of 2013 opposing the execution petition are that the lower court failed to consider the defence raised by him in the execution petition, on the aspects of restitution of conjugal rights O.P. direction given for their living together and civil maintenance O.P. filed by the wife negated by directing the couple to join together, as such she is not entitled to maintenance under Section 125 Cr.P.C. and equally to execute the order of maintenance also, by saying further that even the wife preferred appeal against dismissal of the civil maintenance suit that was confirmed by this Court in F.C.A. No.157 of 2006, dated 02.01.2007, and the wife also filed M.C. No.274 of 2007 on 01.11.2007 and the husband filed O.P. No.470 of 2008 for divorce though it was ended in dismissal and that against application filed by him in Crl.M.P.No.1054 of 2010 to cancel the maintenance order that was dismissed on 05.08.2011, he preferred Crl.R.C.No.2188 of 2011 and thereby during pendency, the maintenance order is unexecutable. It is also his contention that D.V.C. No.5 of 2008 was filed on the file of VIII Additional Chief Metropolitan Magistrate for protection orders under Sections 18 to 20 and 22 of Domestic Violence Act, 2005 and the order of the Magistrate, dated 30.09.2008, granting monthly maintenance @ Rs.3,000/- to the wife and Rs.2,000/- each to the children in the D.V.C. Impugning the same D.V.C. Appeal No.330 of 2008 also filed by him on the grounds that she also filed maintenance case and receiving maintenance referred supra in M.C. No.274 of 2007 and the D.V.C. appeal was allowed setting aside the D.V.C. Order, dated 30.09.2008 that shows the vindictive attitude of his wife - M.C. first petitioner in misusing the provisions of law. His further contention is that his services are terminated from BSNL, where he was working as Junior Telecom Officer from the complaint she lodged and the trial court in the criminal case filed by her wrongly concluded in convicting him and even he filed maintenance modification order and also opposed the maintenance execution petition, the learned Judge, Additional Family Court, went wrong in saying he got immovable property and receiving rents without any proof in that regard and hence, to set aside the same.
6. The grounds raised in Crl.R.C.No.2188 of 2011 against dismissal of Crl.M.P. No.1054 of 2010 which was against the cancellation of maintenance order in M.C. No.274 of 2007, are the self same referred supra and nothing beyond including mainly of he lost job and the Court went wrong in holding that he got means and properties to pay maintenance.
7. Heard both sides at length and in the course of hearing the husband (revision petitioner in the two revisions) reiterated the said contentions. Whereas it is the contention of the counsel for the revision respondents 1 to 3 (wife and two children) that there is nothing to interfere with the impugned orders of the lower court and hence to dismiss the two revision cases.
8. Both the revision cases are taken up together to pass common order at request. Perused the material on record. Now the common points that arise for consideration are, 01. Whether the impugned orders contain any illegality or irregularity or impropriety, for this Court while sitting in revision to interfere and if so to what extent?. 02. To what result?. POINT No.1:
9. Insofar as the criminal revision case No.959 of 2013, which is a revision impugning the order in Crl.M.P. No.115 of 2013, which is an execution order of M.C. No.274 of 2007, merged with the modified revision order in Crl.R.C. No.575 of 2009 is concerned, practically there is nothing to interfere for this Court with the execution proceedings as admittedly M.C. No.274 of 2007 was filed on 01.11.2007 and the order in M.C. was passed on 25.02.2009 and the modified order in the revision preferred by him was also passed on 02.07.2009. In fact, as discussed supra and also by the lower court in the impugned orders, the trial court in passing the orders in M.C. No.274 of 2007, dated 25.02.2009, categorically discussed the earlier civil maintenance claim dismissal order in the O.P. as well as restitution of conjugal rights order allowed in the O.P. and also the wifes appeal confirmed against the dismissal of the said civil maintenance claim in directing the husband to provide separate residence with all provisions, for the wife to join him and the same were prior to the filing of maintenance case on 01.11.2007. Apart from it, after consideration of those orders only and particularly with reference to the scope of Section 125 Cr.P.C. and its proviso, the orders are not a bar from the subsequent events, more particularly, covered by Exs.P.58 and P.59 of M.C. No.274 of 2007 that was also confronted to the husband, who admitted in his cross examination also of the child born to him through the said Saritha also in the birth certificate he was shown as father of the child and the bygomous marriage case filed by the MC first petitioner against him (husband) for his alleged marriage second time with Saritha that was ended in conviction. It makes no difference in so far as execution and maintainability of maintenance order under execution concerned. In fact, once the maintenance order passed by the Court confirmed in revision by him upholding the maintenance filed by wife including on the quantum by the revision Court and that reached finality there is resjudicate and obitor against the husband with bar against his re- agitating the same on that ground including by invoking Section 127 Cr.P.C. but for any other grounds like he lost Job. Thus even coming to the Crl.R.C. No.2188 of 2011 against the order in Crl.M.P. No.1054 of 2010, dated 05.08.2011, he is not entitled to urge the self same grounds of restitution of conjugal rights filed by him was granted in his favour in directing him to provide separate residence and means for their living together and even the wife not joined, she is justified from the subsequent consequences supra of husband living with one Saritha and he blessed with female child which are also proved by Exs.A.58 and A.59 marked during the course of her evidence in the M.C. and also admitted when confronted to him, particularly, birth certificate - Ex.P.59, during his cross-examination. Even coming to his claim of modification of maintenance from he lost his job after filing of the criminal case under Section 494 I.P.C. by the wife against him saying he married Saritha second time that was ended in conviction in the trial court and from which his services are terminated concerned, with the application he did not file even a scrap of paper in modification of the order in Crl.M.P. No.1054 of 2010 on lack of means. In fact, so far as the order in Crl.M.P. No.1054 of 2010 is concerned, there is a clear observation that he got immovable properties also and receiving rents therefrom and he is also a qualified Engineer and got other avocation and earnings.
10. Having regard to the above, there is nothing to interfere, but for the said order no way impediment for his filing a fresh petition under Section 127 Cr.P.C. by giving him opportunity by virtue of this order, if he is able to show he has no means to pay the said quantum of maintenance to reduce for he is able bodied to maintain the wife that too qualified Engineer and having shown some properties and receiving rents, but for if at all to reduce the quantum to the wife and the children. Needless to say that he is entitled by virtue of the very original maintenance order in M.C. No.274 of 2007 to seek non liability, if the son attained majority and the marriage of the daughter if shown performed.
11. Needless to say sending him to the jail for execution of the order no way absolve him from the liability of the recovery as per the expression of the Apex Court in Kuldeep Kaur v. Surinder Singh holding the default in payment in the proceedings for recovery of arrears of maintenance to the wife and children, sending of husband to jail is not a mode of discharging the liability being a mode of recovery and not a substitute for recovery, the Apex Court directed to put the husband in jail till he makes payment and application for recovery of arrears by wife, the husband cannot be absolved from liability merely because he prefers to go to jail. Even the expression of this Court in Medarmatla Krishna Reddy v. Medarmatla Padmavathi is that as per Sub-Section 3 of Section 125 Cr.P.C. proviso (2), if there is a justifiable cause to the wife to stay away, the husband cannot raise the issue of non liability of maintenance and he even offers maintenance to the wife, unless she joins, she can enforce the maintenance by execution as such an offer during execution is untenable, however, a person cannot be imprisoned straight away under Section 128 Cr.P.C. for non payment of maintenance unless his properties, if not attached and sold in the first instance and if the sale proceeds are not sufficient to meet the arrears accrued as then only he should be imprisoned. In fact, the expression of this Court in Krishna Reddy supra, the expression of the Apex Court in Smt. Kuldeep Kaurs case supra was not referred and there was no such prohibition to send to jail without destraint warrant and proceeding against properties. Furthermore, the wording of Section 128 Cr.P.C. says a copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such, Magistrate being satisfied as to the identity of the parties and the non- payment of the allowance due. It is to say Section 128 of Cr.P.C. not provided with procedure of destraint warrant against properties to recover before seeking to send to jail as mode of recovery. Pursuant to the expression of the Apex Court in Smt. Kuldeep Kaurs case supra, for the default in payment in the recovery proceedings initiated by wife and children, the husband can be straight away sought to be sent to jail till he makes payment and there is no provision specifically of firstly for proceeding against the properties by destraint warrant and only after exhausting that remedy or by showing of no properties to seek for sending to civil prison. In view of the said expression of the Apex Court and in the absence of specific provision to that extent the expression in Krishna Reddy (supra) is not serving as a precedent, but for to say from the Division Bench of this Court in 2004(1) Law Summary 63 in interpreting Section 125(3) Cr.P.C. and payment of maintenance does not automatically makes liable to imprisonment on passing order of maintenance, but for execution, whether there is an order in issuing of warrant to undergo the imprisonment for default in payment and the imprisonment term may extend to one month or until payment, if sooner and even Magistrate has no power to imprison beyond one month in each of the execution petitions for breach of non - payment of the order of maintenance, as the wife and children can approach Magistrate again for similar relief, it is to say for each of the month claim, a separate petition can be filed, however, if maintenance is not paid and not filed separate petition for each month, if consolidated for several months, one application can be filed, where the period of imprisonment can be maximum one month to each application.
12. Having regard to the above, the contention that without destraint warrant, the Magistrate cannot pass any order to send him to civil prison is also not tenable, but for to say in each of the execution application, the imprisonment period shall not exceed more than 30 days.
13. Even a perusal of the expression place reliance with memo by revision petitioner of Hemraj v. Urmila devi , Chand Begum v. Hyderbeig , Muralidhar Ghadei v. Smitra Ghadei , Nagendrappa Natikar v. Neelamma Harish v. Hansagauri , M.Ganeshan v. Ganganaiki though speak on the principle of a civil court decree is relevant and binding to some extent on the criminal court here the facts are different as detained supra to say no application. Even coming to another expression of the Apex Court in Shail Kumari Devi & Another V. Krishan Bhagwan Pathak @ Kishun B.Pathak, Civil Appeal No.4666 of 2008, dated 28.07.2008, it was the expression in relating to the order in payment of maintenance where from the date of petition or from the date of order bears on facts of each case where interim maintenance order passed was confirmed from the date of petition pending final adjudication and thereby held from the date of order final maintenance that can be passed. Even the decision has no application for the present facts much less to agitate the main order of maintenance that was made final, modifying the order in the revision preferred by the husband and reached finality as such, not open for challenge in the execution but for liberty is given for any changed worthy circumstances to show and prove to reduce the quantum, if at all so far as against the wife and for non liability also, if at all the marriage of the daughter is shown performed or son became major and not otherwise. Accordingly, point No.1 is answered. POINT No.2:
14. In the result, both the revisions are dismissed, however, giving liberty to the revision petitioner in Crl.R.C. No.2188 of 2011 impugning the order in Crl.M.P. No.1054 of 2010 that no way a bar to his filing fresh application under Section 127 Cr.P.C. for alteration of the maintenance order, if he is able to show that son attained majority by virtue of the original maintenance order till then he is liable and if the daughters marriage shown performed pursuant to the maintenance order, apart from which if he is able to show that he was removed from service and what are the terminal benefits he received and what is the avocation he is pursuing and what are the properties in his name, what rents he is receiving and from which and how much quantum that can be reduced in the maintenance claim of the wife and the children to consider afresh for the prospective liability from date of such petition and till then it no way shelters the existing liability of maintenance to pay else to execute and recover. So far as existing arrears concerned, the revision petitioner (husband) is granted two months time from today dated 25.11.2014 to pay all arrears including of the pending execution petition, if not, trial court can proceed with the execution after expiry of two months period according to law.
15. Miscellaneous petitions, if any, pending in these revisions shall stand cancelled. There is no order as to costs in these two revisions. ______________________________ Dr. B. SIVA SANKARA RAO, J Date:25-11-2014