MANU/UP/0809/1982

Equivalent Citation: 1982(6)AC R520, 1983 (9) ALR 42, 1982 AWC 823 All

IN THE HIGH COURT OF ALLAHABAD

Criminal Misc. Application No. 8156 of 1981
Decided On: 21.10.1982
Appellants: Virendra Kumar Seth
Vs.
Respondent: Smt. Roopa Seth and Anr.
Hon'ble Judges/Coram:
Pratap Narain Bakshi, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.P. Singh, Adv.
For Respondents/Defendant: A.G.A. and K.K. Sangloo, Adv.
JUDGMENT
Pratap Narain Bakshi, J.
1. This is an application under Section 482 Code of Criminal Procedure for quashing
the impugned order passed by the court below awarding maintenance allowance to
Smt. Roopa Seth of Rs. 300- per month in proceedings under Section 125 Code of
Criminal Procedure.
2 . The Opposite Party Smt. Roopa Seth was married to the applicant Sri Virendra
Kumar Seth on 30th May 1987 . Sometime after the marriage a suit was filed by the
husband under Section 12/13 of the Hindu Marriage Act for annulling his marriage
and declaring it void on the ground of insanity. In the alternative a prayer was made
for a decree for divorce. This petition No. 237 was filed on 6-8-79 before the Civil
Judge Agra and is pending there. It appears that on 2-9-79 an application was filed
by Smt. Roopa Seth in the court of Judicial Magistrate Aligarh under Section 125
Code of Criminal Procedure on the allegation that she had been treated with cruelty
by her husband; that her husband had neglected and failed to maintain her; that he
was earning a sum of Rs. 1575/- per month as an employee of the Punjab National
Hunk; that she was unable to maintain herself and as such she prayed for
maintenance allowance of Rs. 500/-per month.
3 . The trial court allowed the application of Smt. Roopa Seth and awarded a
maintenance allowance of Rs. 300/-p. m. Aggrieved thereby Sri Virendra Kumar Seth
filed an application in revision, which was dismissed by the Addl. District Judge,
Aligarh on 4-l1-1981 hence the instant petition under Section 482 Code of Criminal
Procedure.
4. I have heard learned Counsel for the parties, and have also perused the impugned
order. Learned Counsel for the applicant has made two fold submissions. He has
argued that Smt. Roopa Seth has already applied for maintenance in the civil suit

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under Section 24 of the Hindu Marriage Act. Her application is still pending there. He
has stressed that in these circumstances she is not entitled to any maintenance
allowance under Section 125 Code of Criminal Procedure. The second submission of
the applicant's counsel is that in any event the amount of Rs. 300/- awarded as
maintenance by the court below is excessive.
5. In support of the first submission, the applicant's counsel has cited a single Judge
decision of this Court Smt. Premwati v. Mahesh Chandra 1980 Allahabad Criminal
Rulings 70. I have carefully perused this decision. In this case an application was
filed by Smt. Premwati in the year 1978 under Section 125 Code of Criminal
Procedure claiming maintenance allowance. That was dismissed by the trial court.
The revision court upheld the order of dismissal. Thereafter a petition was filed in
this Court under Section 482 Code of Criminal Procedure. It appears that on 30th May
1979, a petition for divorce was filed by the husband against the wife in the court of
the Civil Judge. The High Court after scrutinizing the judgments of the subordinate
courts came to the conclusion that the said orders were erroneous and should be set
aside, but the learned Judge observed further that since the matrimonial suit No. 176
of 1979 had already been filed on 30th May 1979, it would serve the cause of justice
if the proceedings under Section 125 Code of Criminal Procedure were altogether
quashed and the parties are left to pursue their remedies before the Civil Court in the
matrimonial suit. Considering the facts of the above case it has to be borne in mind
that the claim of the lady for maintenance allowance had been dismissed by the trial
court aswell as the revisional court, in other words the subordinate courts held that
the lady was not entitled to any maintenance allowance. The High Court while
exercising jurisdiction under Section 182 Code of Criminal Procedure was of the
opinion that the decision of the lower court was not correct. The learned Judge look
the view that since criminal proceedings Under Section 125 Code of Criminal
Procedure are summary in nature and since the matter was pending before the Civil
Court in the matrimonial case, therefore he thought it expedient in the interest of
justice to quash the proceedings under Section 125 Code of Criminal Procedure so
that these judgments may not stand in the way and the parties could claim their
remedies in the pending matrimonial suit.
6. In the instant case, however, the position appears to be slightly different. The civil
suit is still pending in the preliminary stage. The application for maintenance under
Section 24 of the Hindu Marriage Act is also pending there, but the criminal
proceedings under Section 125 Code of Criminal Procedure have already been
decided finally. The trial court vide its order dated 20th July, 1981 has already held
Smt. Roopa Seth to be entitled to maintenance allowance of Rs. 300/-. The revisional
court viz. Additional District Judge, Aligarh has maintained that order vide his
judgment dated 4th November 1981. Thus the proceedings under Section 125 Code
of Criminal Procedure are now over and the wife has been held entitled to
maintenance. In these circumstances it would not serve the cause of justice to quash
the order of maintenance merely because the proceedings under Section 24 of the
Hindu Marriage Act are pending in the matrimonial suit. Every case has to be judged
on its own merits. Brother Deoki Nandan, J. has not held as a question of law that
whenever civil proceedings in the Hindu Marriage Act are pending, criminal
proceedings under Section 125 Code of Criminal Procedure must necessarily be
quashed in all cases. It was only in the facts and circumstances of that case which I
have narrated above, which impelled the learned Judge to quash the criminal
proceedings. Obviously this was done with the intention that the decision in the
criminal case which he was prepared to upset may not stand in the way of the parties
in seeking their redress in the civil court, as such he quashed the criminal

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proceedings.
7. In case Danda Chenchaih v. Danda Mangamma MANU/AP/0152/1967 : 1969 CriL J
684, it was observed by Chinnappa Reddy, J. as follows:
Pendency of petition for restitution of conjugal rights in Civil Courts and the
availability of a remedy under Section 24 of the Hindu Marriage Act for
maintenance during the pendency of the proceedings is no bar to the wife
claiming maintenance under Section 488 Code of Criminal Procedure. Section
488 Code of Criminal Procedure is not inconsistent with Section 24 of the
Hindu Marriage Act and hence by reason of Section 4(b) of the Hindu
Marriage Act, Section 24 does not prevail over the provision under the Code
of Criminal Procedure.
It was further observed by the learned Judge that "the object of Section 488 Code of
Criminal Procedure is the prevention of vagrancy and to provide neglected wives and
children a cheap and speedy remedy. This remedy is irrespective of other remedies
such neglected wives and children may have under their personal law or under any
statute".
8. A similar view has been expressed by Hon. M. C. Desai, J. as he then was in Ramji
Malaviya v. Munni Devi Malaviya MANU/UP/0226/1959 : AIR 1959 All 767:
The right given by Section 488 Code of Criminal Procedure to a wife to claim
maintenance from her husband is a statutory right which is independent of
the personal law of the parties and is not effected or governed by it.
I am in respectful agreement with the view expressed by Hon. Chinnappa Reddy, J.
as he then was and Hon. M. C. Desai, J. as he then was. In my opinion the pendency
of civil proceedings under the Hindu Marriage Act is no bar to the maintenance of an
application under Section 125 Code of Criminal Procedure, filed by the wife against
he? husband. I may, however, mention in this connection that if the decision of the
criminal court precedes that of the civil court and an order for maintenance allowance
has been made under Section 125 Code of Criminal Procedure in favour of the wife,
then in proceedings under Section 24 of the Hindu Marriage Act, the civil court would
be certainly entitled to take that circumstance into consideration in deciding whether
the wife should be paid maintenance allowance at all or not, and if so how much
under the Hindu Marriage Act. The question of expenses of litigation under Section 24
of the Hindu Marriage Act is a different question altogether which has to be assessed
on the facts and circumstances of that case. In this view of the matter, it can not be
successfully argued that the wife would be placed in a very advantageous position by
being granted maintenance allowance both under Section 125 Code of Criminal
Procedure as well as under Section 24 of the Hindu Marriage Act. These reasonable
adjustments and suitable orders to meet the ends of justice can only be passed in
civil proceedings even after the final determination of the maintenance allowance
under Section 125 Code of Criminal Procedure.
9 . With regard to the second submission of the applicant's counsel concerning the
quantum of maintenance allowance I find that there is enough material on the record
to indicate that the income of the husband is atleast about Rs. 900/- if not more. It is
true that the trial court has not given specific finding with regard to the actual income
of Sri Virendra Kumar Seth, but that is nothing more than an inadvertent error. He
has considered the evidence on record and I have also looked into the material which
has been placed before me in these proceedings under Section 482 Code of Criminal

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Procedure including the impugned orders. In my opinion, there is ample justification
for the payment of Rs. 300/- as maintenance allowance.
10. For the reasons given above, this application under Section 482 Code of Criminal
Procedure is hereby dismissed. The interim order passed by this Court on 26-11-1981
is hereby vacated.

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