Rajendra Prasad Gupta Vs. State of U.P. and ors. - Court Judgment

Giridhar Malaviya, J.

1. This application under Section 482 Code of Criminal Procedure has been filed by one Rajendra Prasad Gupta for quashing the maintenance proceedings initiated by his wife Smt. Mamta Devi, Opp. Party No. 2 under Section 125 Cr.P.C. before Munsif Magistrate I, Gyanpur, Varanasi in Criminal Case No. 10 of 1987 (Smt, Mamta Devi alias Tota v. Rajendra Prasad Gupta). When this application came up for admission before one of us (Giridhar Malaviya, J.) learned counsel for the applicant placed reliance on the observations of Hon. Deoki Nandan, J, in the case of Smt. Premwati v, Mahesh Chandra, reported in 1980 Allahabad Criminal Rulings, page .70 wherein the Hon'ble Judge had quashed the proceedings under Section 125 Cr.P.C. on the ground that the husband had filed a suit for divorce against his wife. As there were large number of cases of the Allahabad High Court as also the other High Courts which had taken a contrary view, the case was referred to large bench at the stage of admission itself so that the controversy may be decided. That is how this petition is now before us for admission.

2. It will be useful to consider the facts of the instant case. The applicant claims to have married opposite party No. 2 in Gyanpur on 23.2.1984. Thereafter the husband and wife lived in Allahabad where the applicant was posted, who is a resident of Mirzapur. It is claimed that in August, 1986, the ' real brother of Opp. Party No. 2 took her away to her father's place in the garb of visiting her ailing mother. When the applicant later went to the house of his father-in-law in Gopiganj, district-Varanasi he found that his mother-in-law wal hail and hearty and also learnt that his in-law would not send opposite party no. 2 with him on account of some mis-understanding. As 'his repeated efforts to bring back his wife failed he sent a registered legal notice through his counsel to opposite party No. 2 on 14.5.1987 asking her to join him without delay failing which he proposed to take legal action. A reminder sent on 15.6.1987 also yielded no result. Ultimately on 3.11.1987 applicant claims to have filed a suit under Section 9 of the Hindu Marriage Act against opposite party No. 2 and his father-in-law in the Court of District Judge, Allahabad which was registered as Matrimonial Petition No. 148 of 1987 (Rajendra Prasad Gupta v. Smt. Mamta Devi). Despite several notices to opposite party No. 2, it is claimed by the applicant she did not appear in matrimonial suit, but instead opposite party No. 2, with the object of harassing the applicant, filed an application claiming maintenance from the applicant Under Section 125 Cr.P.C. which was numbered as Case No. 10 of 1987. On getting the notice of proceedings Under Section 125 Cr.P.C. from the Court of Munsif Magistrate I, Gyanpur, Varanasi, the applicant moved an application before him to drop the proceedings Under Section 125 Cr.P.C. on the ground that he had already filed a petition under Section 9of the Hindu Marriage Act for restitution of conjugal rights with the result that opposite party No. 2 could claim the maintenance in the matrimonial proceedings itself.. According to the applicant since opposite party no. 2 could seek the same relief in the matrimonial proceedings pending since before the initiation of proceedings Under Section 125 Cr.P.C., it was nothing but an abuse of process of Court as also in unnecessary multiplicity of proceedings. The said application moved by the applicant having been dismissed by the Munsif Magistrate, I, Gyanpur, Varanasi by an order dated 23.2.1988, the applicant has filed the present application in the High Court under Section 482 Code of Criminal Procedure for quashing the proceedings before the magistrate.

3. Learned counsel for the applicant has argued not only the law point involved in this case viz. whether in view of pendency of a petition under The Hindu Marriage Act an application Under Section 125 Cr.P.C. can still be maintained or not, he has also challenged the correctness of the impugned order dated 23.2.1988. According to learned counsel for the applicant the Court below erred in almost believing the plea and the contention of the learned counsel for the opposite party No. 2 that he had instituted matrimonial petition for restitution of conjugal rights in the Courts at Allahabad after getting the notice from the Court of the magistrate in proceedings Under Section 125 Cr.P.C. learned counsel says that whereas his suit under Section 9 of the Hindu Marriage Act had been instituted on 3.11.1987 and was registered as Matrimonial Petition No. 148 of 1987, the opposite party no. 2 had moved her application Under Section 125 Cr.P.C. in the Court of Munsif Magistrate I, Gyanpur, Varanasi on 1.12.1987 i.e. almost 28 days after filing of the .matrimonial suit. Learned counsel further contends that the observation by the learned magistrate that the applicant's counsel had failed to show the provision under which proceedings Under Section 125 Cr.P.C. would be dropped, could not be good ground for the magistrate to reject his application for dropping the proceeding Under Section 125 Cr.P.C. Since we are going to consider the question whether the pendency of a matrimonial petition before the matrimonial Court should or should not be treated as a bar on the maintenance of a proceeding Under Section 125 Cr.P.C. we will obviously consider both these aspects while disposing of this matter.

4. It will be relevant to consider the scheme relating to alimony, so far as it is relevant for the present controversy, under the Hindu Marriage Act. Section 9 of the Hindu Marriage Act provides a petition to the district Court by either of the spouse for restitution of conjugal rights. Once the Court comes to the conclusion that either of the spouces had no reasonable excuse to withdraw from the society of the other it has to pass a decree for restitution of conjugal rights. Similarly Section 13 of the Hindu Marriage Act provides for a decree for divorce. By a series of decisions alimony and ad-interim maintenance to the aggrieved party has been held to be payable under Section 24 of the; Hindu Marriage Act during the pendency of a proceedings Under Section 9 of the Hindu Marriage Act. Alimony during the proceedings as also after the decree for divorce have also been held to be admissible to an aggrieved party under Sections 24 and 25 of the said Act.

5. The contention of learned counsel for the applicant is that as the opposite party No. 2 could have claimed alimony in the proceedings under the Hindu Marriage Act, there was no question of her seeking the same relief twice by filing a separate application under Section 125 Cr.P.C.

6. Section 125 Cr.P.C. contemplates that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself then the magistrate may make an order directing such person to make amonthly allowance for the maintenance of his wife at a rate not exceeding Rs. 500/- in whole. Sub-clause (4) of Section 125 Cr.P.C. provides that no wife could get an allowance from her husband under Section 125 Cr.P.C. if she was living in adultery or. if without any specific reason she had refused to live with .her husband or if they had started living separately by mutual consent.

7. In other words the contention of learned counsel for the petitioner is that since in both these proceedings the question will have to be considered whether the wife living separately from her husband without any specific reason or not, there was no point in permitting the proceedings Under Section 125 Cr.P.C. to continue when they were filed at a later stage. It has also been suggested by the learned counsel for the petitioner that the present proceedings Under Section 125 Cr.P.C. having been initiated .after the opposite party No. 2 had come to know about the matrimonial suit, her action was clearly mala-fide and as mala-fides vitiate every action in the eyes of law the present proceedings Under Section 125 Cr.P.C. initiated by opposite party No. 2 against the applicant should be quashed. We will examine the contentions.

8. Although it is true that opposite party No. 2, the wife, could come to the Allahabad Courts and could claim pendentelite maintenance from her husband by filing an application Under Section 24 of the Hindu Marriage Act, the question to be considered is whether in view of a previously instituted proceeding against her under the Hindu Marriage Act. She is to be deprived other right to claim maintenance under Section 125 Cr.P.C. from the Court where she is residing or not. The proceedings under Section 125 Cr.P.C. are always treatedas summary proceedings. The Supreme Court has also now made it clear that during the pendency of an application Under Section 125 Cr.P.C. a wife is entitled to receive interim maintenance vide the case of Savitri v. Govind Singh reported in 1986 Supreme Court page 984. The provision for some amount of maintenance under Section 125 Cr.P.C. has apparently been made looking at the peculiar circumstances under which neglected women, minor children and poor parents have been living in the society since long. This relief can be claimed by the aggrieved person Under Section 125 Cr.P.C. at the place of their own residence. Consequently to deny the said remedy to a neglected and hard pressed wife merely on the ground that she could claim it in a suit which she could defend and which may sometimes be pending at a place different from her place of residence, would almost render the facility and benefit which has been provided to her Under Section 125 Cr.P.C. nugatory. Consequently we have no hesitation to hold that a proceeding under the provisions of Hindu Marriage Act can not operate as a bar to a proceeding of maintenance Under Section 125 Cr.P.C. .

9. Coming to the case of Premwati v. Mahesh Chandra (supra) we find that the application moved Under Section 125 Cr.P.C. by the wife in that case had been rejected by the Magistrate on the ground that she had not stated in the application that she was unable to prove that the opposite party was a bad 'character who beat her and was not maintaining her inspite of his having means to do so. Hon'ble Deoki Nandan, J. deciding that case found that the assertions of the Court below that Premwati had not stated in her application that she was unable to maintain herself was factually incorrect. The Hon'ble Judge also found that the finding of the Court below, that in the absence of a first information report against her husband and in getting herself medically examined the wife had failed to prove the allegations that her husband was a bad character and had beaten her, were bad as in this country the common conduct of such aggrieved wives was to quietly go back to their father's place and lodging a report against her husband was uncommon. The Hon'ble Judge. while settingaside the judgments of the two Courts below had observed in the last paragraph as follows : .

'In the result this application must succeed and the orders of the two Courts below must be set aside, but the question still remains whether I should look into the evidence and decide the case here and now or remand it to the learned magistrate for a fresh inquiry. Keeping in view the object of the provision of Section 125 Cr.P.C. and the summary nature of the proceedings, and the fact that the husband has already filed a petition for divorce against the wife in the Court of Civil Judge, Aligarh being Matrimonial Case No. 126 of 1979, as recently as 30th May, 1979, I am of the view that the ends of justice would be served if the present proceedings Under Section 125 are altogether quashed and the parties are left to, pursue their remedies before the civil Court in the said Matrimonial Case No. 126 of 1979, in the Court of Civil Judge, Aligarh, or in any other proceeding which they may like to institute, as may be permissible in law. I order accordingly.'

10. Although in Premwati's case (supra) parties were left to pursue their remedies before the Civil Court in the matrimonial case the judgment gives no reason nor is there any discussion in the said judgment why the Hon'ble judge had arrived at that conclusion while making such an observation. On the other hand we find that out Court in the case of Nathu Ram v. Smt. Atar Kunwar, reported in A I. R. 1969, Allahabad page 191, Pushpa Devi v. Anoop Singh, reported in 1985 (1) Crimes page 375 and Mst. Devmania v. Manna reported in 1985 (1) Crimes, 556 has clearly held that despite proceedings under Section 24 of the Hindu Marriage Act, the proceedings Under Section 125 Cr.P.C. are maintainable and that the proceedings under Section 125 Cr.P.C. are independant of the proceedings under she Hindu Marriage Act. We are of the opinion that the direction in Premwati's case (supra) directing parties to pursue their remedies in the Civil Court in the matrimonial Court was not a sound direction and the observation to that effect in the judgment is not in accordance with law.

11. Learned counsel for the applicant wanted to draw an analogy from the judgment of the Supreme Court in the case of Ram Sumer Puri Mahant v. State of U.P. and others, reported in AIR 1985 S.C. page 472 and contended that as a parallel proceeding-in a Civil Court has been held to bar the proceedings Under Section 145 Cr.P.C., similarly parallel proceedings Under Section 125 Cr.P.C. and under the Hindu Marriage Act should also be treated to be barred. The case of Ram Sumer Puri Mahant was concerned only with the question of possession about a dispute of property as to which of the two parties was in possession over it. We are of the view that the proceedings under Section 145 Cr.P.C. vis-a-vis an injunction suit in a civil Court in respect of the same subject matter cannot be treated to be at par with a proceedings for maintenance Under Section 125 Cr.P.C. vis-a-vis the proceedings under the Hindu Marriage Act. We have discussed earlier that proceedings Under Section 125 Cr.P.C. are aimed at ameliorating the hardships of a weaker Section of the society, who deserve sympathy. The two proceedings are entirely different in their nature as also on its effect on the respective parties. We are certain that judgment of the Supreme Court in the case of Ram Sumer Puri Mahant does not help the petitioner in the controversy involved in the present case.

12. Coming to the point of malafides in moving an application Under Section 125 Cr.P.C. after getting the notice of a petition moved under the Hindu Marriage Act, we fail to understand how such an application can be termed tobe a malafide application. In every such case obviously a wife must have started liying separately from her husband. If a wife for any reason which may include lack of knowledge on her part that she was entitled to get maintenance from, her husband, did not move an application Under Section 125 Cr.P.C. earlier and moved it even on a legal advice after consluting a lawyer on getting a notice under the Hindu Marriage Act, her inaction upto that stage would not render her belated action malafide. Thus a notice of a petition under the Hindu Marriage Act could become an immediate cause for the application Under Section 125 Cr.P.C. but any such application so moved cannot be treated as a malafide application.

13. Consequently holding that a proceeding between the same parties under the Hindu Marriage Act does not bar a proceedings under Section 125 Cr.P.C., we find that there is no merit in this petition, which is accordingly dismissed. The stay order granted in this case is vacated.

14. As the other side has not put in appearance in this case, the office of the High Court is directed to communicate of the Munsif Magistrate I, Gyanpur, Varanasi that the stay order granted in Criminal Case No. 10 of 1987 (Smt. Mamta Devi v. Rajendra Prasad (Gupta) has been vacated.