Case Note & Summary
The petitioners, including the wife and her relatives, sought quashing of criminal proceedings initiated by the husband (respondent no.1) under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) for maintenance. The marriage between petitioner no.1 and respondent no.1 was solemnized on 19/6/1998. After marriage, the wife joined her husband but later left the matrimonial home. On 26/6/2001, she filed a divorce petition (Divorce Petition No. 18/2001) before the Civil Judge, Senior Division, Amravati, which was decreed on 21/12/2002. The husband filed an appeal (Regular Civil Appeal No. 28/2003) against the decree before the District Judge, Amravati, along with an application for stay under Order 41 Rule 5 of the Code of Civil Procedure, 1908 (CPC). On 16/1/2003, the husband also filed a criminal complaint for maintenance under Section 125 CrPC, which led to Criminal Case No. 170/2003 before the Judicial Magistrate, First Class, Warud. The Magistrate passed an order on 25/8/2003, which was confirmed by the 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 120/2003 on 10/2/2004. The petitioners then approached the High Court under Article 227 of the Constitution of India read with Section 482 CrPC to quash the proceedings. The High Court examined the issue and held that since the civil court had already granted a decree of divorce, the marriage stood dissolved. The mere filing of an appeal against the decree does not revive the marriage, and the stay application under Order 41 Rule 5 CPC does not operate to stay the decree itself. Therefore, the criminal proceedings for maintenance under Section 125 CrPC were not maintainable. The High Court quashed the order dated 10/2/2004 passed by the 2nd Additional Sessions Judge, Amravati and the order dated 25/8/2003 passed by the Judicial Magistrate, First Class, Warud, and allowed the petition.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 CrPC - Quashing of Proceedings - After a decree of divorce was granted by the civil court, the husband filed a criminal complaint for maintenance under Section 125 CrPC - The High Court held that the criminal proceedings were not maintainable as the marriage had been dissolved by a competent civil court - The mere filing of an appeal against the divorce decree does not revive the marriage - The criminal proceedings were quashed to prevent abuse of process of court (Paras 1-6).
Issue of Consideration
Whether criminal proceedings for maintenance under Section 125 CrPC can continue after a civil court has granted a decree of divorce and the husband has filed an appeal against the decree.
Final Decision
The High Court allowed the petition and quashed the order dated 10/2/2004 passed by the 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 120/2003 and the order dated 25/8/2003 passed by the Judicial Magistrate, First Class, Warud in Criminal Case No.170/2003.
Law Points
- Maintenance under Section 125 CrPC cannot be claimed after divorce decree
- Criminal proceedings can be quashed under Section 482 CrPC if civil court has already decided the matter
- Order 41 Rule 5 CPC stay does not revive a marriage after divorce decree
Case Details
2006 LawText (BOM) (09) 131
Criminal Writ Petition No.142 of 2004
Mr. Anil S. Mardikar for petitioners, Respondent No.1 in person, None for respondent no.2/State
Sau. Saroj Ganesh Kale @ Sau. Saroj Sunil Borode and others
Ganesh Manikrao Kale and State of Maharashtra
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution and Section 482 CrPC seeking quashing of criminal proceedings for maintenance.
Remedy Sought
Petitioners sought to quash and set aside the order dated 10/2/2004 passed by the 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 120/2003 confirming the order dated 25/8/2003 by Judicial Magistrate, First Class, Warud in Criminal Case No.170/2003.
Filing Reason
The husband filed a criminal complaint for maintenance under Section 125 CrPC after the civil court had granted a decree of divorce in favor of the wife.
Previous Decisions
The Judicial Magistrate, First Class, Warud passed an order on 25/8/2003 in Criminal Case No.170/2003, which was confirmed by the 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 120/2003 on 10/2/2004.
Issues
Whether criminal proceedings for maintenance under Section 125 CrPC can be maintained after a civil court has granted a decree of divorce.
Whether the filing of an appeal against the divorce decree and an application for stay under Order 41 Rule 5 CPC revives the marriage for the purpose of maintenance.
Submissions/Arguments
Petitioners argued that since the marriage was dissolved by a decree of divorce, the criminal proceedings for maintenance were not maintainable.
Respondent no.1 argued that he had filed an appeal against the divorce decree and an application for stay, so the decree was not final.
Ratio Decidendi
A decree of divorce granted by a civil court dissolves the marriage, and the mere filing of an appeal against the decree does not revive the marriage. An application for stay under Order 41 Rule 5 CPC does not operate to stay the decree itself. Therefore, criminal proceedings for maintenance under Section 125 CrPC are not maintainable after the marriage has been dissolved by a competent civil court.
Judgment Excerpts
By this petition under Article 227 of the Constitution of India r/w Sec. 482 of the Code of Criminal Procedure the petitioners seek to quash and set aside the order dated 10/2/2004 passed by 2nd Additional Sessions Judge, Amravati in Criminal Revision No. 120/2003 confirming the order dated 25/8/2003 by Judicial Magistrate, First Class, Warud in Criminal Case No.170/2003.
The marriage between petitioner no.1 and respondent no.1 was solemnized on 19/6/1998.
On 26/6/2001 she filed Divorce Petition No. 18/2001 against respondent no.1 before Civil Judge, Senior Division, Amravati.
The said divorce petition was decreed by the Joint Civil Judge, Senior Division, Amravati on 21/12/2002.
On 16/1/2003 respondent no.1 preferred Regular Civil Appeal No. 28/2003 against the said judgment and decree before the District Judge, Amravati.
He also moved an application for stay under Order 41 Rule 5 of the Code of Civil Procedure.
Procedural History
The marriage between petitioner no.1 and respondent no.1 was solemnized on 19/6/1998. On 26/6/2001, the wife filed Divorce Petition No. 18/2001, which was decreed on 21/12/2002. On 16/1/2003, the husband filed Regular Civil Appeal No. 28/2003 against the decree and an application for stay under Order 41 Rule 5 CPC. On the same day, the husband also filed a criminal complaint for maintenance under Section 125 CrPC, leading to Criminal Case No. 170/2003. The Magistrate passed an order on 25/8/2003, which was confirmed by the 2nd Additional Sessions Judge in Criminal Revision No. 120/2003 on 10/2/2004. The petitioners then filed the present writ petition on 2004.
Acts & Sections
- Code of Criminal Procedure, 1973: 125, 482
- Code of Civil Procedure, 1908: Order 41 Rule 5
- Constitution of India: Article 227
