Case Note & Summary
The applicant, Lata Khandare, filed a petition under Section 125 of the Code of Criminal Procedure, 1973, seeking maintenance from her husband, Shriram Khandare, a teacher. The trial court in Misc. Criminal Case No. 70 of 2004 granted maintenance at Rs.1,200/- per month. The husband challenged this order in Criminal Revision No. 56 of 2006 before the Additional Sessions Judge, Akola. The Revisional Court upheld the finding that the wife was not living in adultery and was entitled to maintenance, but set aside the maintenance order solely because the wife was already receiving interim maintenance of Rs.1,000/- per month in proceedings under the Hindu Marriage Act. The wife then filed the present criminal revision before the Bombay High Court at Nagpur. The High Court found that the Revisional Court committed a serious error. It noted that the husband's net salary was Rs.8,890/- per month and he also had agricultural land. The High Court held that the total maintenance of Rs.2,200/- per month (Rs.1,000 under HMA + Rs.1,200 under CrPC) was not excessive in view of the husband's income and rising prices. The Revisional Court's order was illegal and incorrect. Consequently, the High Court allowed the revision, set aside the Revisional Court's order, and restored the trial court's order granting maintenance of Rs.1,200/- per month under Section 125 CrPC.
Headnote
A) Criminal Law - Maintenance - Section 125 Code of Criminal Procedure, 1973 - Concurrent Maintenance - The Revisional Court erred in setting aside maintenance under Section 125 CrPC merely because the wife was already receiving Rs.1,000/- per month as interim maintenance under the Hindu Marriage Act. The High Court held that the total maintenance of Rs.2,200/- per month (Rs.1,000 under HMA + Rs.1,200 under CrPC) was not excessive given the husband's net salary of Rs.8,890/- and landed property. The order of the Revisional Court was illegal and incorrect. (Paras 4-5)
Issue of Consideration
Whether the Revisional Court was justified in setting aside the maintenance order under Section 125 CrPC solely on the ground that the wife was already receiving interim maintenance under the Hindu Marriage Act
Final Decision
The High Court allowed the revision, set aside the order of the Additional Sessions Judge dated 20.11.2006 in Cri. Revision No.56 of 2006, and restored the order of the trial court granting maintenance of Rs.1,200 per month under Section 125 CrPC.
Law Points
- Maintenance under Section 125 CrPC is independent of maintenance under Hindu Marriage Act
- concurrent maintenance orders are permissible
- quantum must consider total income and needs
Case Details
2010 LawText (BOM) (01) 54
Criminal Revision No. 28 of 2007
Mr. A.S. Sonare, A.P.P. for Res. no.2
Lata w/o Shriram Khandare
Shriram Shivram Khandare, State of Maharashtra
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Nature of Litigation
Criminal revision against order of Additional Sessions Judge setting aside maintenance under Section 125 CrPC
Remedy Sought
Restoration of maintenance order of Rs.1,200 per month under Section 125 CrPC
Filing Reason
Revisional Court set aside maintenance order solely because wife was already receiving interim maintenance under Hindu Marriage Act
Previous Decisions
Trial Court granted maintenance of Rs.1,200 per month in Misc. Cri. Case No. 70 of 2004; Revisional Court set aside that order in Cri. Revision No. 56 of 2006
Issues
Whether the Revisional Court was justified in setting aside the maintenance order under Section 125 CrPC merely because the wife was already receiving interim maintenance under the Hindu Marriage Act
Submissions/Arguments
Applicant argued that the Revisional Court erred in denying maintenance under Section 125 CrPC due to concurrent maintenance under Hindu Marriage Act
Ratio Decidendi
Maintenance under Section 125 CrPC is independent of maintenance under the Hindu Marriage Act. The mere fact that a wife is receiving interim maintenance under the Hindu Marriage Act does not bar her from claiming maintenance under Section 125 CrPC. The quantum of maintenance must be determined based on the husband's income and the wife's needs, and the total maintenance from both proceedings should be considered together to ensure it is not excessive.
Judgment Excerpts
In my opinion, the Revisional Court committed serious error in not granting maintenance in the proceedings under Section 125 Code of Criminal Procedure merely because the applicant Lata was getting maintenance Rs.1,000/ per month in the proceedings under Hindu Marriage Act.
Looking to the net salary received by the husband/respondent no.1 and the agricultural lands shown at Ex.14, the quantum of maintenance awarded to the applicant Lata together with maintenance in the proceedings under Hindu Marriage Act and the maintenance under Section 125 Code of Criminal Procedure at the rate of Rs.2200/ per month in these days of soaring prices cannot be said to be too much.
Procedural History
The trial court in Misc. Criminal Case No. 70 of 2004 granted maintenance of Rs.1,200 per month to the wife under Section 125 CrPC. The husband challenged this in Criminal Revision No. 56 of 2006 before the Additional Sessions Judge, Akola, who set aside the maintenance order on 20.11.2006. The wife then filed Criminal Revision No. 28 of 2007 before the Bombay High Court, Nagpur Bench, which allowed the revision and restored the trial court's order on 05.01.2010.
Acts & Sections
- Code of Criminal Procedure, 1973: 125
- Hindu Marriage Act, 1955:
