Amarnath Yadav vs State Of U.P. And Another
2019 Latest Caselaw 5076 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 65
 

 
Case :- APPLICATION U/S 482 No. - 20347 of 2019
 

 
Applicant :- Amarnath Yadav
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Harish Chandra Shukla,Arvind Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 of Cr.P.C. has been moved seeking the quashing of impugned order dated 29.11.2018 passed by the Principal Judge, Family Court, Azamgarh in Case No.787 of 2016 (Smt. Shashikala Yadav vs. Amarnath Yadav) u/s 125 of Cr.P.C., Police Station-Tahbarpur, District-Azamgarh, whereby Rs.1500/- per month has been awarded to the wife- opposite party no.2 as interim maintenance.

Heard learned counsel for the applicant.

Submission of learned counsel for the applicant is that the allegedly neglected wife has already availed remedy under Section 24 of the Hindu Marriage Act and she is already getting Rs.2,000/- per month as interim maintenance amount. In that view of the matter, the fixation of the interim maintenance amount in the present proceedings, which are going on under Section 125 Cr.P.C., is bad in the eyes of law. In this regard reference was given by the counsel to the case of Patna Improvement Trust vs. Lakshmi Devi, 1963 AIR (SC) 1077. It has also been submitted by the counsel that the factum of the relief which has already been granted under Section 24 of the Hindu Marriage Act was never considered by the court below while fixing the amount of interim maintenance in the present case.

Heard learned A.G.A. and perused the record.

So far as the case law relied upon by the counsel for the applicant is concerned, attention of the Court was specifically drawn to the observation made by the Supreme Court in Para-12 of the aforesaid case Patna Improvement Trust vs. Lakshmi Devi, 1963 AIR (SC) 1077 and on the basis of the same it was sought to be argued by the counsel for the applicant that the general law must yield place to the specific law and therefore if the wife was getting her maintenance amount under the Hindu Marriage Act, she would forfeit her right to get any maintenance under the provisions of Section 125 of the Criminal Procedure Code. It shall be appropriate at this stage to quote para-12 of aforesaid judgement which reads as follows :

"12.The law on the subject is very well settled and, in my view, the learned judges of the High Court have correctly appreciated it and applied it to the facts of the case. Two principles noticed by the High Court are apposite. The first principle is generalia specialibus non derogant. This principle is exemplified by the decision of the Privy Council in Secretary of State v. Hindustan Co-operative Insurance Society Ltd. (1). The second principle is that if a statute directs a thing be done in a certain wax that thing shall not, even if there be no negative words,, be done in-any other way. This principle is illustrated by the decision in Ex parte Stephens (2). A combined effect of the said two principles may be stated thus : a general Act must yield to a special Act dealing with a specific subject- matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way. Under the Act, the Trust is authorized to implement the improvement schemes in a particular way and for the purposes of implementing them to acquire land in a prescribed manner. If that be so, the Trust is bound to implement the scheme in the manner prescribed and cannot resort to any other method, that is to say it can acquire land for trust purposes only by resorting to the provisions of the Land Acquisition Land as modified and incorporated by reference in the Act."

So far as the observations of the Apex Court made in aforesaid paragraph is concerned, this Court finds it difficult to bring them into application in the facts and circumstances of this case. The propositions of law as have been referred to and observed by the Hon'ble Apex court are with regard to the situations where there is some general law and then some specific law with regard to the same has been enacted. It is difficult to accept the contention of the counsel that Section-24 of the Hindu Marriage Act is a special law while Section 125 of the Criminal Procedure Code should be described as a general law. The provisions of Section 125 of the Criminal Procedure Code and other related provisions in that regard are basically meant to provide succour to the neglected wives, children and others who otherwise have a right to be maintained by the husband or the father etc. The provisions to provide interim maintenance are also basically meant to avert the eventuality of destitution and vagrancy, in which otherwise a neglected party is likely to be driven. A similar kind of beneficial provision may be found in more than one legislations. Unless it is provided specifically by the statute it is difficult to accept the contention of the counsel that two beneficial legislations claiming to provide a similar kind of relief should be deemed to be mutually exclusive to each other and only one should be allowed to be availed. Contention of the counsel also appears to be not very sound when he seeks to contend that if interim maintenance under Section 24 of the Hindu Marriage Act has already been availed then the jurisdiction of the court undertaking the proceedings under Section 125 of the Criminal procedure Code should stand ousted. In the considered opinion of this Court both the provisions, as they have been provided by the legislation, must be allowed to co-exist for the simple reason that the legislation in its wisdom has not laid down any such rule or provision of exclusion. The maximum that can be said with some degree of reasonableness in this context is that if a particular relief has already been granted to a party then while deciding upon the question of granting another relief contemplated under a different legislation, the court must keep in perspective the earlier relief which is already being availed by a particular party. The two similar beneficial statutes should be treated as complementary to each other and one should be read in addition to other and not in derogation of the same. If an interim relief can be granted under two legislations then it will be certainly in the fitness of things to keep the earlier relief already granted to a particular party in perspective and the amount of compensation or expenses or the maintenance amount etc. should not be fixed in ignorance of the earlier orders by way of which similar reliefs have been conferred upon a party. In the present matter it has been made to appear that under the provisions of Section 24 of the Hindu Marriage Act Rs.2,000/- per month were fixed by the court dealing with that matter. Subsequently in the proceedings which were undertaken under Section 125 of Criminal procedure Code an amount of Rs.1500/- as interim maintenance has further been fixed by the court below. This Court while exercising its inherent jurisdiction aims not only to see that the process of the court below should not be abused, it also makes it a point to see that the ends of justice are also met with. In that view of the matter this Court does in appropriate cases take into account the quantum of amounts that might have been fixed by the two courts under two legislations. It is quite possible that if sufficient amount of interim maintenance has already been provided by a particular court under a particular legislation then the subsequent similar relief under a different legislation may be treated to be excessive and may be seen as something which is likely to cause excessive hardship to the other side and this Court in that situation may proceed to mitigate, extenuate, lessen or in a given case even put an end to the subsequent relief in order to meet the ends of justice. But there may be cases where the aggregate of amounts that have been fixed as interim measure under the scheme of two legislations may be so meagre that this Court may not proceed to disturb either of them. It all depends upon the facts and circumstances of each case. When we advert to the facts of the present case it is found that the allegations that have been made by the wife are about the cruel treatment which was meted out to her. The allegations of demand of dowry are also there. According to the allegations the wife was leading miserable life and at some stage of her disgruntled matrimonial life she was ousted from her matrimonial home and was living a life of utter neglect at the hands of her husband. In a situation like this if Rs.1500/- have been fixed as an interim maintenance amount in the subsequent proceedings u/s 125 of Criminal Procedure Code, prima facie the same cannot be said to be either excessive or disproportionate. But these observations of this Court are not being given as a final finding on the point. This is actually for the court below to see all these aspects and come to its own conclusion. So far as the other limb of the argument raised by the counsel for the applicant is concerned, whereby he has sought to show from the impugned order that the factum of the earlier relief which the wife is already receiving under Section-24 of the Hindu Marriage Act was never considered by the court below (while fixing the interim maintenance amount in the proceedings u/s 125 of Criminal Procedure Code) seems to have substance. The perusal of the impugned order shows that this aspect of the matter was either never brought to the notice of the court on behalf of applicant or his counsel or was at any rate never considered by the court concerned. This Court does not propose to take it upon itself to consider these aspects and enter into those factual details but leaves it open for the applicant to move an application before the concerned court below and bring the aforesaid fact to the notice of the court and seek a relook of the court concerned to all these aspects of the matter. The applicant shall have the liberty to move a proper application before the court concerned and bring the necessary relevant facts in this regard to its notice and if any such application is moved before the court below, then the court below shall look into same and would pass appropriate orders as it may deem fit in accordance with law and would have the liberty to amend the amount of interim maintenance, if it deems it proper to do so.

With the aforesaid observations this application stands disposed off.

Order Date :- 28.5.2019

M. Kumar/CPP