Case Note & Summary
The petitioner, Shivaji Tukaram Davargave, filed a Criminal Writ Petition before the Bombay High Court challenging the orders of the Magistrate and the Additional Sessions Judge rejecting his applications (Exhibit 15 and Exhibit 24) made in execution proceedings under Section 125(3) CrPC. The petitioner had offered to maintain his wife and children after a final order of maintenance had been passed against him under Section 125(1) CrPC. The core legal issue was whether such an offer could be considered under the Second Proviso to Section 125(3) CrPC after the maintenance proceeding had concluded. The petitioner argued that the offer should be considered and that no warrant for recovery should be issued. The respondents contended that the offer should have been made before the maintenance order was passed and that the execution proceedings could not reopen the merits. The court analyzed the scheme of Section 125 CrPC, noting that the Second Proviso to Section 125(3) applies only when the husband makes an offer to maintain his wife during the pendency of the maintenance proceeding under Section 125(1). Once a final order of maintenance is passed, the proceeding under Section 125(3) is only for enforcement, and the Magistrate cannot go behind the order. The court held that the petitioner's offer was made after the maintenance order had attained finality and therefore could not be considered. The writ petition was dismissed, and the orders of the lower courts were upheld.
Headnote
A) Criminal Procedure Code - Maintenance - Second Proviso to Section 125(3) - Offer to Maintain - The husband cannot make an offer to maintain his wife under the Second Proviso to Section 125(3) CrPC after the maintenance proceeding under Section 125(1) CrPC has concluded and a final order of maintenance has been passed. The offer must be made during the pendency of the maintenance proceeding. In execution proceedings under Section 125(3) CrPC, the only consideration is whether to issue a warrant for enforcement of the maintenance order, not to reopen the merits of the maintenance order. (Paras 5-10)
Issue of Consideration
Whether the husband can make an offer to maintain his wife under the Second Proviso to Section 125(3) CrPC after the maintenance proceeding under Section 125(1) CrPC is concluded, in a proceeding initiated by the wife for enforcement of the maintenance order under Section 125(3) CrPC.
Final Decision
The writ petition is dismissed. The orders of the Magistrate and the Additional Sessions Judge rejecting the petitioner's applications (Exh. 15 and Exh. 24) are upheld.
Law Points
- Second Proviso to Section 125(3) CrPC applies only during pendency of maintenance proceedings under Section 125(1) CrPC
- not after final order
- offer to maintain must be made before conclusion of maintenance proceedings
- execution proceedings under Section 125(3) CrPC cannot be used to reopen merits of maintenance order
Case Details
2019 LawText (BOM) (03) 21
Criminal Writ Petition No.1238 of 2018
Mr. Hanumant P. Jadhav (for petitioner), Mr. Vinod M. Vibhute (for respondent No.1)
Shivaji Tukaram Davargave
Chaya w/o Shivaji Davargave, Kunal s/o Shivaji Davargave, Omkar Shivaji Davargave
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Nature of Litigation
Criminal Writ Petition challenging rejection of applications (Exh. 15 and Exh. 24) made by husband in execution proceedings under Section 125(3) CrPC, seeking to offer maintenance after final order under Section 125(1) CrPC.
Remedy Sought
Petitioner husband sought to have his offer to maintain wife and children considered in execution proceedings, and to prevent issuance of warrant for recovery of maintenance.
Filing Reason
Petitioner's applications (Exh. 15 and Exh. 24) offering to maintain respondents were rejected by the Magistrate and confirmed by the Additional Sessions Judge in Criminal Revision Application No.4/2018.
Previous Decisions
Maintenance order under Section 125(1) CrPC was passed in favor of respondents; petitioner's applications in execution proceedings were rejected by Magistrate and confirmed by Additional Sessions Judge.
Issues
Whether the husband can make an offer to maintain his wife under the Second Proviso to Section 125(3) CrPC after the maintenance proceeding under Section 125(1) CrPC is concluded.
Submissions/Arguments
Petitioner: The offer to maintain was made via applications (Exh. 15 and Exh. 24) and should be considered under the Second Proviso to Section 125(3) CrPC; no warrant for recovery should be issued. Relied on Mohanlal Maganlal Vs. Savitaben (AIR 1965 Gujarat 281).
Respondents: The offer should have been made before the maintenance order under Section 125(1) CrPC was passed; the order has attained finality; execution proceedings under Section 125(3) CrPC cannot reopen merits; no illegality in rejecting applications.
Ratio Decidendi
The Second Proviso to Section 125(3) CrPC applies only during the pendency of the maintenance proceeding under Section 125(1) CrPC. Once a final order of maintenance is passed, the proceeding under Section 125(3) CrPC is only for enforcement, and the Magistrate cannot consider an offer to maintain made after the conclusion of the maintenance proceeding.
Judgment Excerpts
A very interesting point which arises for consideration in this Writ Petition is, as to whether the husband can make an offer to maintain his wife as contemplated in the Second Proviso to Sub Section 3 of Section 125 of the Code of Criminal Procedure even after the proceeding for maintenance under SubSection 1 of Section 125 is concluded, in a proceeding initiated by the wife for enforcement of the order of maintenance as contemplated under Section 125 (3).
Procedural History
Respondents filed application for maintenance under Section 125(1) CrPC; maintenance order was passed. Petitioner filed applications (Exh. 15 and Exh. 24) in execution proceedings under Section 125(3) CrPC offering to maintain respondents; Magistrate rejected applications. Petitioner filed Criminal Revision Application No.4/2018 before Additional Sessions Judge, which was dismissed. Petitioner then filed Criminal Writ Petition No.1238 of 2018 before Bombay High Court.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 125(1), 125(3), Second Proviso to Section 125(3)
