High Court of Delhi was dealing with a criminal revision petition filed by the Revisionist Petitioner, an Indian Army colonel, with a prayer to set aside the order dated 30.5.2018 passed by Ld. Family Court wherein the Court passed an order under Section 125 Cr.P.C directing the Petitioner to pay a monthly maintenance of Rs.33,500/- to the Respondent.
Brief Facts:
The marriage of the Petitioner was solemnized according to Sikh rites and rituals in accordance with the Hindu Marriage Act, 1955. The Revisionist Petitioner and the Respondent were peacefully married and residing happily together until 2015 where the Petitioner alleges that he found that the Respondent was in an adulterous relationship with one of the petitioner’s seniors in the army, who was married and close with the family as well. The Petitioner hosted a dinner party where he had invited both his and Respondent’s respective parents and had invited his army superior/ paramour of the Respondent and his spouse. Admittedly, after the dinner party the Petitioner made his intentions very clear of wanting to separate from the Respondent. The Petitioner firmly stated before the families that he would have the custody of the children. It is stated that the Respondent tried to apologize numerous times but the same was not accepted by the Petitioner and all attempts of reconciliation made by Respondent had failed. In the petition for maintenance, the learned Family Court has granted Rs. 9000/- per month as ad interim maintenance to the respondent. The Ld. Principal Judge, on 30.05.2018 in the proceedings initiated under Section 125 Cr.P.C has passed an order directing the Revisionist Petitioner to pay a sum of Rs. 35,300/- per month as interim maintenance to the respondent till the final disposal of the case and retrospective maintenance of the amount of Rs. 9,000/- p.m. as directed by the learned Family Court. The petitioner has approached this Court challenging the order of maintenance.
Petitioner’s Contention:
The counsel for the petitioner submitted that the respondent is disqualified from being given maintenance as she was in an adulterous relationship and was living in adultery with an army senior of the Petitioner. He submitted that the Respondent and her paramour were having an affair behind his back and the paramour was known to the couple as a family friend from the time they had gotten married in 2002. He submitted on this ground itself the sub-section (4) of Section 125 CrPC is attracted which states that a person living in adultery would not be eligible for claiming maintenance from her separated spouse.
It was submitted that the respondent has an earning capacity and can maintain herself without the financial support of the Petitioner. The submission of the Petitioner is that since the Respondent’s maintenance claim is to be decided in accordance with the Army Order, the same would be decided by the Army officials of the Armed Tribunal and the jurisdiction exercised by the Family Court is wrong and improper.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the Petitioner had deserted the respondent without giving her a reason. She submitted that she was in a loveless marriage for resorted to initiate divorce, custody and maintenance proceedings against him. She submitted that there is no infirmity in the impugned order granting maintenance of Rs.35,300/- and the revision petition is without any merits. She submitted that the Petitioner is under an obligation imposed by CrPC to maintain her and he cannot escape his responsibility even though their marriage has fallen apart.
She submitted that the Petitioner has been an uncaring spouse who neglected her and the children throughout the marriage and when the she decided to live separately the Petitioner foisted the wild charge of adultery to avoid paying maintenance to her. She submitted that she was working as a teacher in a school in New Delhi only for a short period and the salary she was receiving not enough to sustain herself and live as per the same standard as she lived during her marriage. She submitted that one single incident adultery would not disqualify a person from getting maintenance under Section 125 CrPC.
HC’s Observations:
After hearing both the sides Court stated that the material on record discloses that the children are with the petitioner herein from 2015 and, therefore, the respondent is not entitled to two shares. Court found that the contention of the petitioner that he is covered by the Army Order 02/2001 and therefore the order passed by the learned Trial Court, fixing maintenance is contrary to the Army Order 02/2001 does not hold water.
Court stated that the object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child.
Court stated that the provisions of Section 125 Cr.P.C are in addition to other provisions which provide for maintenance. However, the amount given under Section 125 Cr.P.C is always taken into account before fixing maintenance in other proceedings like the proceedings under the Protection of Women from Domestic Violence Act, 2005, proceedings under Section 24 of the Hindu Marriage Act etc. It cannot be said that the Army Order would over-ride the provisions of Section 125 Cr.P.C and that the Army personnel are covered only by the Army Order and that Section 125 Cr.P.C would not apply to Army Personnel.
HC Held:
After evaluating submissions made by both the parties the Court held that “the fact that the respondent is capable of earning is also no ground to deny interim maintenance to the respondent herein. The respondent has raised a very interesting argument stating that even if the case of the petitioner is accepted then also one incident of adultery cannot lead to a conclusion that the respondent is living in adultery. If it is conclusively proved that the respondent was living in adultery and was not entitled to maintenance at all, the learned Trial Court can pass appropriate order for return of the maintenance amount if it deems it fit and keeping in mind the object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife.”
HC allowed the revision petition.
Bench: Hon'ble Mr. Justice Subramonium Prasad
Case Title: Col Ramnesh Pal Singh v. Sugandhi Aggarwal
Case Details: CRL.REV. P. 710/2018 & CRL.M.As. 30389/2018, 12577/2021, 14363-65/2021
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