P.N.Bakshi - (1.) THIS is an application under section 482 CrPC 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 CrPC.
(2.) THE Oppoiste Party Smt. Roopa Seth was married to the applicant Sri Virendra Kumar Seth on 30th May 1978. 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 25-9-79 an application was filed by Smt. Roopa Seth in the court of Judicial Magistrate Aligarh under Sec. 125 CrPC 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 Bank; that she was unable to maintain herself and as such she prayed for maintenance allowance of Rs. 500/-per month. 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 4-11-1981 hence the instant petition under section 482 CrPC. 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 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 CrPC. 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.
(3.) 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 CrPC 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 CrPC. It appearz 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 CrPC were altogether quashed and the parties are left to persue 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 as well 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 482 CrPC was of the opinion that the decision of the lower court was not correct. The learned Judge took the view that since criminal proceedings u/Sec. 125 CrPC 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 CrPC so that these judgments may not standi in the way and the parties could claim their remedies in the pending matrimonial suit. 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 CrPC have already been decided finally. The trial court vide its order dated 20th July, 1.981 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 CrPC 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 CrPC 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 proceedings.;