Khalid vs Smt. Yasmeen
2022 Latest Caselaw 16325 MP

                                     1
 IN       THE       HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                              BEFORE
                  HON'BLE SHRI JUSTICE SHEEL NAGU
                      ON THE 9 th OF DECEMBER, 2022
                   CRIMINAL REVISION No. 2969 of 2022

BETWEEN:-
KHALID S/O SHRI SAHJADE, AGED ABOUT 32 YEARS,
OCCUPATION: PRIVATE JOB RAFIKIYA SCHOOL
CHOUKI,   EMAMBADA,    BHOPAL    (M.P), SONA
GARMENTS MARWADI ROAD, BHOPAL (M.P) (MADHYA
PRADESH)

                                                                 .....PETITIONER
(BY SHRI LALJI KUSHWAHA- ADVOCATE)

AND
SMT. YASMEEN W/O KHALID D/O SHRI MOHAMMAD
RAEES, AGED ABOUT 30 YEARS, HOUSE NO. 4, JHADA
COLONY, JAHAGIRABAD, BHOPAL (M.P) (MADHYA
PRADESH)

                                                              .....RESPONDENTS
(BY SHRI D.K. SHAH- ADVOCATE)

         T h is revision coming on for orders this day, t h e cou rt passed the
following:
                                      ORDER

Present Criminal Revision has been filed assailing the order dated 14.02.2022 passed in MJCR No. 107/2020 whereby interim maintenance of Rs.5000/- per month in favour of wife has been passed.

2. The petitioner husband is before this Court aggrieved by the aforesaid order.

3. The sole contention of learned counsel for the petitioner husband is that while deciding the question of interim maintenance, necessary pleadings for

the same as laid down by the Apex Court in the case of Rajnesh v. Neha and another [(2021) 2 SCC 324] were not brought on record. It is submitted that without ensuring filing of affidavits in their prescribed proforma by the rival parties as laid down by the Apex Court in the said case from wife as well as husband, the impugned order has been passed.

4. It is pertinent to mention that the order in the case of Rajnesh (supra)

was passed on 4th November, 2020 and the same has been made applicable even to pending proceedings u/S.125 of Cr.P.C. before the Family Court which is evident from the following paragraphs:

"VI. Final Directions

127. In view of the foregoing discussion as contained in Part B â€ÂÂ" I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :

(a) Issue of overlapping jurisdiction

128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

128.1 Where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

128.2 It is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

128.3 If the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(b) Payment of Interim Maintenance

129. The Affidavit of Disclosure of Assets and Liabilities annexed as

Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court/Magistrates Court, as the case may be, throughout the country.

(c) Criteria for determining the quantum of maintenance

130. For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B â€ÂÂ" III of the judgment. The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

131. We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B â€ÂÂ" IV above.

(e) Enforcement/Execution of orders of maintenance

132. For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

133. Before we part with this judgment, we note our appreciation of the valuable assistance provided by the Ld. Amici Curiae Ms. Anitha Shenoy and Mr. Gopal Sankaranarayanan, Senior Advocates in this case.

134. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts / Family Courts / Courts of Judicial Magistrates for awareness and implementation."

5. It is obvious that the direction for specific pleadings by both the

parties in matter concerning maintenance became necessary so as to instil objectivity in the proceedings as well as the final orders passed.

6. The aforesaid decision of the Apex Court is a judgment in rem and is the Law of the Land under Article 141 of the Constitution.

7. Learned counsel for the respondent wife does not dispute that the aforesaid procedure as laid down by the Apex Court for seeking grant of and objecting to the same was not followed by the rival parties, which is evident from the application filed by the wife under Section 125 Cr.P.C and also the reply to the same filed by the husband

8. In view of the above this Court disposes of this petition with a direction to the Family Court to direct the rival parties to submit appropriately drafted pleadings in respect of interim maintenance as per law laid down by the Apex Court in Rajnesh (supra) within a period of one month and thereafter decide the question of interim maintenance afresh without being prejudiced by the order passed on 14.2.2022 which is impugned herein.

9. Let the exercise be completed within a further period of one month.

10. To enable the Family Court to decide the matter regarding interim maintenance afresh, impugned order dated 14.02.2022 passed in MJCR No. 107/2020 of interim maintenance is set aside. However, setting aside the impugned order shall not prejudice the rights of wife to keep receiving maintenance at the same rate of Rs.5,000/- per month subject to final order which is passed by the Family Court in compliance of this order.

(SHEEL NAGU) JUDGE

vivek VIVEK KUMAR TRIPATHI 2022.12.12 16:01:28 +05'30'