@JUDGMENTTAG-ORDER
C.V. Sirpurkar, J. - This criminal revision has been preferred on behalf of the petitioner/husband against order dated 30.3.2015 passed by the Court of Principal Judge, Family Court, Satna in M.J.C. No.532/2014, whereby the application dated 13.2.2015 filed on behalf of the petitioner/husband Yash Attri for dismissal of M.J.C. No.532/2014 on the ground of maintainability, was rejected.
2. The facts giving rise to this criminal revision may be summarised as hereunder: The respondent/wife filed an application under Section 125 of the Cr.P.C. for maintenance in the Court of Principal Judge, Family Court, Satna, on 30.8.2014. She also filed an application for interim maintenance, which was allowed by order dated 2.2.2015 and the petitioner/husband was directed to pay Rs. 4000/- per month from October, 2014. It was further directed that the aforesaid sum of Rs. 4000/- per month shall adjustable against the maintenance awarded to the respondent/wife by the judgment and decree dated 13.5.2014 passed by the Principal Judge, Family Court, Bhopal in Regular Civil Suit No.1009/2013 for restitution of conjugal rights.
3. It may be noted here that earlier, the petitioner/husband had filed a petition under Section 9 of the Hindu Marriage Act in the Court of Principal Judge, Family Court, Bhopal, which was registered as regular civil suit No.1009/2013. In that case, respondent/wife Tusharika Attri appeared on 13.5.2014 and filed a written reply to the effect that she was ready and willing to live with the petitioner/husband and discharge her marital obligations towards him as his wife; therefore, the petitioner/husband be directed to take her with him. In view of the reply filed by the respondent/wife, learned Principal Judge, Family Court, Bhopal passed a decree on 13.5.2014 under Section 15(1) of the C.P.C., directing petitioner/husband to take respondent wife with him and directing the respondent/wife to live in matrimony with him. In the alternative, the Court directed that if the petitioner/husband does not keep the respondent/wife with him and spend matrimonial life, he would pay Rs.4000/- per month to respondent wife.
4. Admittedly, the petitioner/husband did not take the respondent/wife with him so the conjugal life of the parties could not resume. Subsequently, the respondent wife filed this petition under Section 125 of the Cr.P.C. before the Principal Judge, Family Court, Satna on 14.8.2014; wherein the petitioner/husband has taken the objection with regard to the maintainability.
5. Placing reliance upon the judgment rendered by the Supreme Court in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others AIR 1978 S.C.1807, it has been contended on behalf of the petitioner/husband that a final determination of a civil right by a civil Court must prevail against a like decision by a criminal Court. The final determination of the civil right of the respondent/wife to receive maintenance was made by the learned Principal Judge, Family Court, Bhopal in Civil Suit No.1009/2014 for restitution of conjugal rights; as such, these proceedings under Section 125 of the Cr.P.C. for enforcement of the same right was not maintainable. Thus, learned Principal Judge, Family Court, Satna, has grossly erred in rejecting the application of the petitioner/husband for dismissal of the proceedings under Section 125 of the Cr.P.C. on the ground of maintainability.
6. Learned counsel for the respondent/wife has supported the impugned order urging that the decree dated 13.5.2014 passed by the learned Principal Judge, Family Court, Bhopal did not represent the final determination of the right of respondent/wife to receive maintenance; therefore, the dismissal of the objection by the Family Court regarding maintainability was perfectly justified.
7. After going through the record and on due consideration of the rival contentions, the Court is of the view that this criminal revision must fail for the reasons hereinafter stated:
8. The relevant part of the judgment in the case of Captain Ramesh Chander Kaushal (supra) reads as hereunder:-
"6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner''s own income and the income of the respondent. It may seem to the court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication.
7. Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a higher maintenance. We cannot, therefore, fault the Magistrate for giving Rs. 1000/- on this score.
9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15 (3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to the selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts."
9. It may be noted at the outset that in the case of Captain Ramesh Chander Kaushal (supra), the Supreme Court was considering the effect of an order of interim maintenance made under Section 24 of the Hindu Marriage Act in a proceeding taken under the Hindu Adoptions and Maintenance Act upon an interim order passed under Section 125 of the Cr.P.C. and it was observed that broadly stated and as abstract proposition, it is valid to assert that a final determination of a civil right by a civil Court must prevail against a like decision by a criminal Court. The crucial condition for determination of a civil Court to prevail over the determination of a criminal Court is that the determination by the civil Court must be final and not interim.
10. In the instant case, the respondent/husband had filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Since, respondent/wife expressed readiness and willingness to resume co-habitation with the petitioner/husband in writing, learned Principal Judge passed a decree of a restitution of conjugal rights under Section 15(1) of C.P.C on the same date as the parties were not at issue. To that extent no error was committed by the learned Principal Judge. However, in its zeal to ensure that the decree for restitution of conjugal rights is implemented, learned Principal Judge, gratuitously imposed a condition that in case, the petitioner does not take the respondent/wife with him and resume co-habitation, he will pay maintenance @ Rs.4000/- per month. This further direction was presumably made under Section 25 of the Hindu Marriage Act. It is not clear as to whether or not the respondent/wife had prayed for any amount by way of maintenance because she was prepared to live with the petitioner/husband and discharge her conjugal obligations but it is most certain that she had no opportunity of pleading and proving her requirements and the extent of financial means of the petitioner/husband. No reasons have been assigned by learned Principal Judge in the order dated 13.5.2014 to arrive at the rate of Rs. 4000/- per month. Thus, the order of maintenance at the rate of Rs. 4000/- per month by way of maintenance in the alternative, after passing the decree of restitution of conjugal rights was purely gratuitous and unwarranted. As it was not preceded by any judicial application of mind, such uncalled for direction can, under no circumstances, be held to be a final adjudication by a civil Court of the right of the respondent/wife to receive maintenance from petitioner/husband.
11. In aforesaid circumstances, learned Principal Judge, Family Court, Satna committed no illegality, irregularity or impropriety in holding that the proceedings instituted by respondent/wife for maintenance under Section 125 of the Cr.P.C. were maintainable. As such, no interference with the impugned order dated 30.3.2015 is warranted.
12. Consequently, this criminal revision deserves to be and is accordingly dismissed.
