Future Salary can not be attached Under section 125(3) of Cr.P.C.

Madhya Pradesh High Court
Anil Jain vs Shilpa Jain on 11 November, 2014
                               1              Cri.Rev.No.941/13

        HIGH COURT OF MADHYA PRADESH
                  BENCH AT GWALIOR

                            ***

Present HON. SHRI JUSTICE B.D.RATHI *** (Cri. Rev. No.941/2013) Anil Jain Vs.

Shilpa Jain Shri R.K.Jain, Advocate for the petitioner.

Shri Pradeep Katare, Advocate for the respondent.

O rder (Passed on 11th of November, 2014) Per B.D.Rathi, J. –

By invoking the supervisory powers of this Court, petitioner has preferred this petition under Section 397/401 of Code of Criminal Procedure, 1973 (in short ‘the Code’) seeking the following relief:

“By allowing this petition, the order impugned dated 01-11-2013 passed by Executing Court and the letter dated 30-07-2013 issued by learned JMFC, Ambah District Morena be set aside.”

(2) Facts in brief are that respondent/wife has filed an application under Section 125 of the Code claiming maintenance from petitioner which was registered as MJC NO.95/2009. The aforesaid application filed by the respondent was allowed by the trial Court and petitioner was directed to pay maintenance to the tune of Rs.10,000/- per month from the date of filing of application. Since the order of trial Court was not complied with by the petitioner therefore, respondent has moved an application under Section 128 of the Code for the purpose of recovery of maintenance from the petitioner. On the aforesaid application, trial Court has issued a letter dated 30-07-2013 directing the Branch Manager to deduct Rs.10,000/- p.m. from the salary of petitioner and be credited in the account of respondent without issuing show cause notice to the petitioner.

(3) Counsel for the petitioner submitted that the order dated 30-07-2013 passed by learned trial Court ordering to deduct Rs.10,000/- per month under the head of maintenance from the account of petitioner is arbitrary and contrary to law. It is further submitted that since the respondent is living separately from the petitioner without any cause, therefore, she is not entitled for any maintenance. It is also submitted that since the decree of divorce has been passed between the parties, therefore, respondent is not entitled for any maintenance from the petitioner. Thus, the order/letter impugned passed/issued by the learned trial Court is sought to be set aside. It is also submitted that application of the petitioner to recall the letter dated 30/7/2013 was also dismissed vide order dated 1/11/2013 by the Executing Court.

(4) Combating the submission of petitioner’s counsel, counsel for the respondent submitted that the order dated 23-08-2012 passed by learned trial Court granting maintenance to the respondent has already been put to challenge by the petitioner up to this Court which was dismissed by this Court in M.Cr.C.No.7439/2012. Hence, he prayed for dismissal of petition.

(5) Having regard to the arguments advanced by learned counsel for the parties, entire record has been perused.

(6) The following incidental questions are arising in this petition to the effects:-

“(i) Whether without affording opportunity of hearing, the impugned order could be passed ?.

(ii) Whether ground of separate living without any sufficient reason by the respondent-wife had to be considered by the trial court before passing the impugned order?.

(iii) Whether, divorced wife has right to get maintenance ?.

(iv) Whether future salary could be ordered to be attached to meet out the maintenance amount ?.

Question No.(i) (7) To examine the principal controversy involved in the matter, the record of the trial court (MJC No.18/12) has been perused.

(8) On perusal of the record it seems that on 21/9/2012 an application under section 128 of Cr.P.C. was preferred for recovery of the awarded amount of maintenance. So, in order to understand the controversy, the provisions of sections 125(3) and 128 of Cr.P.C. are relevant to be considered. Both these provisions are supplementary to each other and show that the order of maintenance can be made enforceable with the help of these two provisions.

(9) Firstly, the provisions given in section 125(3) of Cr.P.C. is taken up. Same runs as follows:-

Order for maintenance of wives, children, and parents.-

Section 125.

      (1)     xxxx    xxxx        xxxx
      (2)     xxxx    xxxx        xxxx


(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(10) The opening word employed in section 125 (3) of Cr.P.C. lays down specifically that “if any person so ordered fails without sufficient cause to comply with the order, then Magistrate may, for every breach of the order, issue a warrant for levying the amount.

(11) On coming to this particular case, a perusal of the original record indicates that show-cause notice was not given to the petitioner before passing the order of attachment of his salary. Therefore, the impugned order is not sustainable in the eyes of law not only because the order impugned was passed in contravention of the provisions of section 125(3) of Cr.P.C. but on the ground that no opportunity of hearing was afforded to the petitioner before taking any stringent action against him. It clearly violates the principles of natural justice. Apart that under provisions of section 128 of Cr.P.C. it was also mentioned that until and unless the Magistrate is not satisfied with non-payment of allowance, he cannot proceed for enforcement of the order of maintenance by issuing attachment warrant, meaning thereby the satisfaction of the Magistrate is mandatory which could be achieved only after following due procedure as established by law. Therefore, on this sole ground, the impugned order cannot be allowed to stand and is liable to be set aside.

Question No.(ii) (12) Admittedly, the order passed in favour of the respondent-wife under section 125 of Cr.P.C. for grant of maintenance was challenged by the petitioner in Cri. Rev. No.168/12 and same was dismissed on 23/8/12 from the court of Additional Sessions Judge, Ambah, district Morena. Thereafter, M.Cri.C.No.7439/12 was preferred and same was again dismissed by this court vide order dated 13/8/2013 in conformity with the order of maintenance passed in favour of the respondent-wife. Therefore, at the time of recovery proceedings the second question was not germane to be considered.

Question No.III.

(13) Before reaching on the conclusion to decide the aforesaid question as to whether a divorced wife can claim maintenance from her husband, the definition of wife has been given under the Explanation of provision under sub-section (1) of section 125 of Cr.P.C.

(14) The expression wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Aforesaid provision was enacted in order to provide a quick and summary remedy so that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, something is provided in advance to contemplate the future needs.

(15) Hence, a careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair amount of maintenance. Same would extend to the whole life of the divorced wife unless she gets married for a second time.

(16) Now the fourth question remains whether attachment of future salary could be ordered by the court under the Act.

(17) The future salary is not tangible corporeal property available for seizure. Only when the salary become payable and takes shape of tangible corporeal property, it can be attached for realisation of arrear as well as current maintenance according to provisions of section 421(1)a) of Cr.P.C.

(18) In this case by the letter dated 30/7/2013 addressed to the Branch Manager of Bank of India Krishi Upaj Mandi, Branch Narsinghgarh Road, Sihore, district Sihore the directions were issued to the concerning Bank to deduct monthly amount of Rs.10,000/- from the salary of the petitioner-Anil Jain to meet out the recovery sum and after deduction the amount be sent to the court. From the language it is clear that attachment order of future salary was passed against the petitioner. Attachment of future salary is not permissible under the law. On this count, the impugned letter dated 30/7/2013 (Annexure-A/1) is also liable to be set aside.

(19) Accordingly, the petition is allowed. The impugned letter dated 30/7/2013 (Annexure-A/1) stands hereby set aside to the extent that the amount if any deducted so far from the salary of the petitioner pursuant to such letter/impugned directions dated 30/7/2013 by the Bank, same be treated and adjusted from the total arrears of the maintenance amount outstanding against the petitioner. The Executing Court is directed to consider the matter afresh after giving due opportunity of hearing to both the parties and thereafter pass a fresh order in accordance with law. Parties are directed to remain present before the Executing court on 12/1/2015.

(20) The record of the case be sent back alongwith a copy of this order to the trial court for compliance.

(B.D.Rathi) Judge (Bu)

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Six month period can be waived off by family court in case of Mutual Consent Divorce

 IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO. 11158 OF 2017
                 (Arising out of Special Leave Petition (Civil)No. 20184 of 2017)



          Amardeep Singh                                              …Appellant

                                                 Versus

          Harveen Kaur                                                …Respondent

                                             JUDGMENT

ADARSH KUMAR GOEL, J.

1. The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.

Signature Not Verified Digitally signed by SWETA DHYANI Date: 2017.09.12 16:23:52 IST Reason:

2. Factual matrix giving rise to this appeal is that marriage between the parties took place on 16 th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28 th April, 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The respondent wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, HMA No. 1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8 th May, 2017 statements of the parties were recorded. The appellant husband has also handed over two cheques of Rs.50,00,000/-, which have been duly honoured, towards part payment of permanent alimony. Custody of the children is to be with the appellant. They have sought waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their re union. Any delay will affect the chances of their resettlement. The parties have moved this Court on the ground that only this Court can relax the six months period as per decisions of this Court.

3. Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali Kumar 1 wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.

The text of Section 13B is as follows:

“13-B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

4. There is conflict of decisions of this Court on the question whether exercise of power under Article 142 to waive the statutory period under Section 13B of the Act was appropriate. In 1 (2016) 13 SCC 383 Manish Goel versus Rohini Goel2, a Bench of two-Judges of this Court held that jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision. It was observed :

“14. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560]

15. A Constitution Bench of this Court in Prem Chand Garg v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12) “12. … An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.” (emphasis supplied) The Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P.

Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only 2 (2010) 4 SCC 393  through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.”

5. This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony 3. This view was reiterated in Poonam versus Sumit Tanwar4.

6. In Neeti Malviya versus Rakesh Malviya5, this Court observed that there was conflict of decisions in Manish Goel (supra) and Anjana Kishore versus Puneet Kishore6. The matter was referred to bench of three-Judges. However, since the matter became infructuous on account of grant of divorce in the meanwhile7.

3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995) 2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220;Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and Satish Sitole v. Ganga (2008) 7 SCC 734 4 (2010) 4 SCC 460 5 (2010) 6 SCC 413 6 (2002) 10 SCC 194 7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007

7. Without any reference to the judgment in Manish Goel (supra), power under Article 142 of the Constitution has been exercised by this Court in number of cases 8 even after the said judgment.

8. We find that in Anjana Kishore (supra), this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142in the facts and circumstances of the case. In Anil Kumar Jain versus Maya Jain9, one of the parties withdrew the consent. This Court held that marriage had irretrievably broken down and though the civil courts and the High Court could not exercise power contrary to the statutory provisions, this Court under Article 142 could exercise such power in the interests of justice. Accordingly the decree for divorce was granted. 8 Priyanka Singh v. Jayant Singh(2010) 15 SCC 390; Sarita Singh v. Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar(2011) 5 SCC 234; Veena v. State (Govt of NCT of Delhi) (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna (2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC 547; Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383 9 (2009) 10 SCC 415

9. After considering the above decisions, we are of the view that since Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for the purpose of waiver of the statute.

10. However, we find that the question whether Section 13B(2) is to be read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised. This Court observed :

“23. The learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.”

11. Accordingly, vide order dated 18th August, 2017, we passed the following order :

“List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to  waive the same having regard to the interest of justice in an individual case.

Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to furnish copy of necessary papers to learned Amicus”.

12. Accordingly, learned amicus curiae has assisted the Court. We record our gratitude for the valuable assistance rendered by learned amicus who has been ably assisted by S/Shri Abhishek Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.

13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

          i)     How long parties have been married?

          ii)    How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480  “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

23. The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

The appeal is disposed of accordingly.

…………………………………..J.

(ADARSH KUMAR GOEL) …………………………………..J.

(UDAY UMESH LALIT) NEW DELHI;

SEPTEMBER 12, 2017.

Wife is not entitle to get any maintenance from her husband if reside separately by way of mutual consent

Calcutta High Court
Amarendra Nath Bagui vs Gouri Rani Bagui And Anr. on 29 June, 1990
Equivalent citations: 1990 CriLJ 2415, 94 CWN 1120, I (1991) DMC 202
Author: J Hore
Bench: J Hore

JUDGMENT J.N. Hore, J.

1. The present Revisional Application at the instance of the husband is directed against the judgment and order dated 13-7-89 under Section 125, Criminal Procedure Code passed by the learned Judicial Magistrate, 6th Court, Sealdah directing the petitioner husband to pay maintenance to the O.P. wife Smt. Gouri Rani Bagui at the rate of Rs. 350/- per month from the date of filing of the petition.

2. O. P. No. 1 Smt. Gouri Rani Bagui filed an application under Section 125, Criminal Procedure Code for maintenance inter alia upon the allegations that she was married with the petitioner in May, 1966 according to Hindu Rites and Custom and that the petitioner for the reasons best known to him filed a matrimonial suit being No. 268 of 1967 under Section 12(1)of the Hindu Marriage Act, 1955 for a declaration that the marriage was nullity on the ground that opposite party No. 1 has no female organ except a small passage for passing urine and was incapable of sexual intercourse. That suit was withdrawn after the doctor who examined the O.P. No. 1 found that she had a normal female organ and was capable of sexual intercourse. After withdrawal of the aforesaid suit the present petitioner agreed to pay maintenance to the O.P. No. 1 at the rate of Rs. 300/- per month from February, 1969. The petitioner paid maintenance at the said rate from February, 1969 till December, 1978 and thereafter at the rate of Rs. 350/- per month from January, 1978 till December, 1985. From January, 1986 the petitioner stopped paying maintenance despite repeated demands and thus refused and neglected to maintain the O.P. No. 1, it was alleged that the O.P. No. 1 had no independent income and the petitioner’s monthly income was about Rs. 3,500/-.

3. The petitioner resisted the claim mainly on the ground that the O.P. No. 1 and the petitioner had been voluntarily living separately by mutual consent and O.P. No. 1 was not, therefore, entitled to get any maintenance. It was alleged that the petitioner withdrew the matrimonial suit on the request of the O.P. No. 1 and her other relations and through the negotiations of common welwishers of both the parties. It was mutually agreed and settled between the parties that the parties would live separately by mutual consent and the O.P. No. 1 would not claim any maintenance whatsoever from the petitioner and she also consented to the second marriage of the petitioner. The petitioner never paid any maintenance at the rate of Rs. 300/- or Rs. 350/- as alleged.

4. The learned Judicial Magistrate held that the claim of the wife/petitioner under Section 125, Criminal Procedure Code for maintenance could not be defeated on the strength of a constant decree in a divorce suit. He accordingly passed an order for maintenance in favour of the present O.P. No. 1. Being aggrieved the petitioner has moved this court in revision and obtained the present Rule.

5. Mr. Nandy, learned Advocate appearing for the petitioner has contended that the petitioner and the O.P. No. 1 are living separately by mutual consent, and so under Sub-section (4) of Section 125, Criminal Procedure Code, O.P. No. 1 is not entitled to maintenance. This contention has considerable force and merits acceptance. The learned Magistrate was obviously wrong in thinking that there was a consent decree passed in the matrimonial suit between the parties to the effect that O.P. No. 1 would not claim maintenance. The suit being Matrimonial Suit No. 20 of 1967 was withdrawn, and there is no question of passing any decree in that suit.

6. It is the case of the petitioner that after the withdrawal of the said suit the parties mutually agreed to live separately, and since then they have been living separately by mutual consent. The fact that the parties have been living separately on mutual consent is clearly admitted by the O.P. No. 1 in the last line of her cross-examination where she has stated that they were living separately on mutual consent after the withdrawal of the suit. The only point on which the parties appear to differ is that according to the petitioner there was no agreement as to the alleged payment of maintenance at the rate of Rs. 300/- whereas the claim of O.P. No. 1 is that at the time of agreement between the parties to live separately, the petitioner agreed to pay maintenance at the rate of Rs. 300/- per month and as a matter of fact it was paid at that rate till December, 1978 and at the rate of Rs. 350/- from January, 1978 till December, 1986. It is immaterial for the purpose of Sub-section (4) of Section; 125, Criminal Procedure Codewhether there was agreement to pay maintenance between the parties. In Sub-section (4) of Section 125, three contingencies have been provided where wife is not entitled to maintenance :

(i) When she is living in adultery;

(ii) When she refused to live with husband without any sufficient cause;

(iii) When she is living separately by mutual consent.

7. We are concerned with the last contingency in this case. Admittedly the parties are living separately by mutual consent. The O.P. No. 1 is not, therefore, entitled to maintenance under Section 125, Criminal Procedure Code. She may be entitled to maintenance under the Hindu Marriage Act or in an action for enforcement of the alleged agreement for maintenance but Sub-section (4) of Section 125 which governs the whole of Section 125 including Sub-section (I) is a clear bar to her claim for maintenance. In Nathuram v. Smt. Atar Kurwar, it has been held that where the separate living proceeds from the common desire of the husband and the wife live separately whatever the reason for the desire may be, it is certainly by mutual consent. Where, therefore, since the passing of the consent decree for judicial separation, the parties have been living separately by mutual consent the wife is not entitled to receive any maintenance under Section 488 Criminal Procedure Code (present Section 125) she may pursue such remedies as may be available under Hindu Marriage Act. In this case separate living proceeded from the common desire of the husband and the wife to live separately and was in face an outcome of a free agreement between the parties. The parties are living separately on mutual consent and O.P. No. 1 is not entitled to maintenance under Section 125,Criminal Procedure Code.

8. The impugned order is, therefore, illegal and liable to be set aside. The Revisional Application is, therefore, allowed and the impugned order is set aside and the Rule is made absolute.

Future Salary can not be attached Under section 125(3) of Cr.P.C.

Madhya Pradesh High Court
Anil Jain vs Shilpa Jain on 11 November, 2014
                               1              Cri.Rev.No.941/13

        HIGH COURT OF MADHYA PRADESH
                  BENCH AT GWALIOR

                            ***

Present HON. SHRI JUSTICE B.D.RATHI *** (Cri. Rev. No.941/2013) Anil Jain Vs.

Shilpa Jain Shri R.K.Jain, Advocate for the petitioner.

Shri Pradeep Katare, Advocate for the respondent.

O rder (Passed on 11th of November, 2014) Per B.D.Rathi, J. –

By invoking the supervisory powers of this Court, petitioner has preferred this petition under Section 397/401 of Code of Criminal Procedure, 1973 (in short ‘the Code’) seeking the following relief:

“By allowing this petition, the order impugned dated 01-11-2013 passed by Executing Court and the letter dated 30-07-2013 issued by learned JMFC, Ambah District Morena be set aside.”

(2) Facts in brief are that respondent/wife has filed an application under Section 125 of the Code claiming maintenance from petitioner which was registered as MJC NO.95/2009. The aforesaid application filed by the respondent was allowed by the trial Court and petitioner was directed to pay maintenance to the tune of Rs.10,000/- per month from the date of filing of application. Since the order of trial Court was not complied with by the petitioner therefore, respondent has moved an application under Section 128 of the Code for the purpose of recovery of maintenance from the petitioner. On the aforesaid application, trial Court has issued a letter dated 30-07-2013 directing the Branch Manager to deduct Rs.10,000/- p.m. from the salary of petitioner and be credited in the account of respondent without issuing show cause notice to the petitioner.

(3) Counsel for the petitioner submitted that the order dated 30-07-2013 passed by learned trial Court ordering to deduct Rs.10,000/- per month under the head of maintenance from the account of petitioner is arbitrary and contrary to law. It is further submitted that since the respondent is living separately from the petitioner without any cause, therefore, she is not entitled for any maintenance. It is also submitted that since the decree of divorce has been passed between the parties, therefore, respondent is not entitled for any maintenance from the petitioner. Thus, the order/letter impugned passed/issued by the learned trial Court is sought to be set aside. It is also submitted that application of the petitioner to recall the letter dated 30/7/2013 was also dismissed vide order dated 1/11/2013 by the Executing Court.

(4) Combating the submission of petitioner’s counsel, counsel for the respondent submitted that the order dated 23-08-2012 passed by learned trial Court granting maintenance to the respondent has already been put to challenge by the petitioner up to this Court which was dismissed by this Court in M.Cr.C.No.7439/2012. Hence, he prayed for dismissal of petition.

(5) Having regard to the arguments advanced by learned counsel for the parties, entire record has been perused.

(6) The following incidental questions are arising in this petition to the effects:-

“(i) Whether without affording opportunity of hearing, the impugned order could be passed ?.

(ii) Whether ground of separate living without any sufficient reason by the respondent-wife had to be considered by the trial court before passing the impugned order?.

(iii) Whether, divorced wife has right to get maintenance ?.

(iv) Whether future salary could be ordered to be attached to meet out the maintenance amount ?.

Question No.(i) (7) To examine the principal controversy involved in the matter, the record of the trial court (MJC No.18/12) has been perused.

(8) On perusal of the record it seems that on 21/9/2012 an application under section 128 of Cr.P.C. was preferred for recovery of the awarded amount of maintenance. So, in order to understand the controversy, the provisions of sections 125(3) and 128 of Cr.P.C. are relevant to be considered. Both these provisions are supplementary to each other and show that the order of maintenance can be made enforceable with the help of these two provisions.

(9) Firstly, the provisions given in section 125(3) of Cr.P.C. is taken up. Same runs as follows:-

Order for maintenance of wives, children, and parents.-

Section 125.

      (1)     xxxx    xxxx        xxxx
      (2)     xxxx    xxxx        xxxx


(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(10) The opening word employed in section 125 (3) of Cr.P.C. lays down specifically that “if any person so ordered fails without sufficient cause to comply with the order, then Magistrate may, for every breach of the order, issue a warrant for levying the amount.

(11) On coming to this particular case, a perusal of the original record indicates that show-cause notice was not given to the petitioner before passing the order of attachment of his salary. Therefore, the impugned order is not sustainable in the eyes of law not only because the order impugned was passed in contravention of the provisions of section 125(3) of Cr.P.C. but on the ground that no opportunity of hearing was afforded to the petitioner before taking any stringent action against him. It clearly violates the principles of natural justice. Apart that under provisions of section 128 of Cr.P.C. it was also mentioned that until and unless the Magistrate is not satisfied with non-payment of allowance, he cannot proceed for enforcement of the order of maintenance by issuing attachment warrant, meaning thereby the satisfaction of the Magistrate is mandatory which could be achieved only after following due procedure as established by law. Therefore, on this sole ground, the impugned order cannot be allowed to stand and is liable to be set aside.

Question No.(ii) (12) Admittedly, the order passed in favour of the respondent-wife under section 125 of Cr.P.C. for grant of maintenance was challenged by the petitioner in Cri. Rev. No.168/12 and same was dismissed on 23/8/12 from the court of Additional Sessions Judge, Ambah, district Morena. Thereafter, M.Cri.C.No.7439/12 was preferred and same was again dismissed by this court vide order dated 13/8/2013 in conformity with the order of maintenance passed in favour of the respondent-wife. Therefore, at the time of recovery proceedings the second question was not germane to be considered.

Question No.III.

(13) Before reaching on the conclusion to decide the aforesaid question as to whether a divorced wife can claim maintenance from her husband, the definition of wife has been given under the Explanation of provision under sub-section (1) of section 125 of Cr.P.C.

(14) The expression wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Aforesaid provision was enacted in order to provide a quick and summary remedy so that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, something is provided in advance to contemplate the future needs.

(15) Hence, a careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair amount of maintenance. Same would extend to the whole life of the divorced wife unless she gets married for a second time.

(16) Now the fourth question remains whether attachment of future salary could be ordered by the court under the Act.

(17) The future salary is not tangible corporeal property available for seizure. Only when the salary become payable and takes shape of tangible corporeal property, it can be attached for realisation of arrear as well as current maintenance according to provisions of section 421(1)a) of Cr.P.C.

(18) In this case by the letter dated 30/7/2013 addressed to the Branch Manager of Bank of India Krishi Upaj Mandi, Branch Narsinghgarh Road, Sihore, district Sihore the directions were issued to the concerning Bank to deduct monthly amount of Rs.10,000/- from the salary of the petitioner-Anil Jain to meet out the recovery sum and after deduction the amount be sent to the court. From the language it is clear that attachment order of future salary was passed against the petitioner. Attachment of future salary is not permissible under the law. On this count, the impugned letter dated 30/7/2013 (Annexure-A/1) is also liable to be set aside.

(19) Accordingly, the petition is allowed. The impugned letter dated 30/7/2013 (Annexure-A/1) stands hereby set aside to the extent that the amount if any deducted so far from the salary of the petitioner pursuant to such letter/impugned directions dated 30/7/2013 by the Bank, same be treated and adjusted from the total arrears of the maintenance amount outstanding against the petitioner. The Executing Court is directed to consider the matter afresh after giving due opportunity of hearing to both the parties and thereafter pass a fresh order in accordance with law. Parties are directed to remain present before the Executing court on 12/1/2015.

(20) The record of the case be sent back alongwith a copy of this order to the trial court for compliance.

(B.D.Rathi) Judge (Bu)

The mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child.

IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on: 11th October, 2017

+        CRL.REV.P. 117/2015 & CRL.M.A. 2941/2015, 19194/2016

1.       DR. NIHAL SINGH                                      ..... Revisionist

                            Through      Mr. Vinay Sharma with Mr.Rahul
                                         Sharma, Advocates

                            versus

1.       DR. (MRS.) PRIYANKA SINGH BADALIA
2.       BABY HARSHA                                          ..... Respondents

                            Through      Mr.Panna Lal Sharma, APP for State
                                         Mr. K. G. Sharma, Advocate with
                                         Mr.K.S. Badatia, Advocate.



         CORAM:
         HON'BLE MR. JUSTICE I.S.MEHTA

                                  JUDGMENT

I. S. MEHTA, J.

1. The instant revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 has been preferred by the revisionist, i.e. Dr. Nihal Singh, for quashing/setting aside of the impugned order dated 21.11.2014 passed by the learned Additional Sessions Judge-3, Dwarka Courts, New Delhi, in Criminal Appeal No. 42/2014.

2. The brief facts stated are that, the revisionist was married to the respondent No.1, i.e. Dr. Priyanka Singh Badalia, on 22.11.2009 as per Hindu rites and customs at Dwarka, New Delhi and out of the said wedlock one female child was born to them on 29.10.2010, i.e. Baby Harsha/respondent No.2. Thereafter, on 12.12.2010 families of both the parties had altercation among themselves as a result of which the respondent no.1 left the matrimonial house along with the newly born child, i.e. respondent no. 2, and since 13.12.2010 both the parties are living separately.

3. On 06.05.2011, the respondent no.1 filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 bearing Complaint Case No. 1003/1/2011 for maintenance for herself and her minor child/respondent no.2 before the Court of the learned Metropolitan Magistrate, Dwarka Courts, New Delhi. Consequently, the learned Metropolitan Magistrate vide order dated 24th June, 2011 directed the present revisionist to pay Rs. 15,000/- (Rupees Fifteen Thousand Only) per month to respondent no.2 only through respondent no.1 since the date of filing of the case, i.e. 06.05.2011.

4. Aggrieved from the aforesaid order dated 24.06.2011, the revisionist as well as the respondents filed Criminal Appeal Nos. 73/11 and 54/11 respectively before the Court of the learned Additional Sessions Judge/Special Judge (NDPS), Dwarka Courts, New Delhi and the learned Additional Sessions Judge remanded back the case to the learned Metropolitan Magistrate with the direction to hear the arguments on the application under Section 23 of Protection of Women from Domestic Violence Act, 2005 and then decide the interim relief to be awarded to the respondents herein.

5. The learned Metropolitan Magistrate after hearing both the parties and pursuing the respective affidavits of income of both the parties vide order dated 03.06.2014 awarded a maintenance of Rs. 10,000/- per month in favour of respondent no.1 towards her maintenance, Rs. 10,000/- towards rent/alternative rental accommodation and Rs.5000/- per month towards maintenance of their minor daughter i.e. respondent no.2, from the date of filing of petition, i.e. 06.05.2011, till the disposal of the petition on merits. It was further ordered that the aggrieved person shall be entitled to 10% yearly increase in the awarded maintenance.

6. Aggrieved form the aforesaid orders dated 03.06.2014 the present revisionist filed a Criminal Appeal No. 42 of 2014 in the Court of learned Additional Sessions Judge-3, Dwarka Courts, New Delhi on the ground that the interim maintenance awarded by the learned Trial Court, is excessive in view of the fact that the revisionist/appellant is unemployed having no source of income. Consequently, the learned Additional Sessions Judge dismissed the said Criminal Appeal No.42 of 2014 of the present revisionist vide order dated 21.11.2014 for want of merit.

Hence the present revision petition.

7. The learned counsel for the revisionist has submitted that the revisionist is the husband, a doctor MBBS and is unemployed and the respondent No.1 is physiotherapist; running a clinic from House No. 740, Palam Extn., Dwarka, Delhi. It is further submitted that since the revisionist is qualified MBBS, does not tantamount any capacity on part of the revisionist whereas the wife, i.e. respondent no.1, is a physiotherapist and running her clinic and earning handsome amount by practicing physiotherapy.

8. The learned counsel for the revisionist has further submitted that the revisionist is suffering from moderate depression, which fact is supported by the medical certificate issued by the Board of AIIMS. Further, the revisionist is unable to pay any maintenance amount to the wife but is ready and willing to pay an amount of Rs.5,000/- per month towards maintenance of minor daughter, i.e. respondent No2.

9. The learned counsel for the revisionist has relied upon the following judgments in support of his arguments:-

1) Rupali Gupta v. Rajat Gupta; 2016 Law Suit (Del) 5143.

                2) Damanreet        Kaur    v.   Indermeet   Juneja     &     Anr.;
                      Manu/DE/2693/2012.

3) Sanjay Bhardwaj & Ors. v. The State; Crl. M.C. No. 490/2009 decided by this Court on .

4) Mamta Jaiswal v. Rajesh Jaiswal; AIR 2005 MP 227.

5) Nisha Jain v. Amit Jain; APP. (F.C.) 106/2015 decided by this Court on 24th August, 2016.

10. The learned counsel for the revisionist has further submitted that the orders passed by learned Metropolitan Magistrate, i.e. order dated 03.06.2014, and the learned Additional Sessions Judge, i.e. order dated 21.11.2014, are harsh and the Court below deviated from the material evidence placed on record to reach the conclusion of maintenance amount which is liable to be set aside.

11. On the other hand, the learned counsel for the respondents has submitted that the impugned maintenance awarded is under Section 23 of the Protection of Women from Domestic Violence Act, 2005. He further submitted that it is an admitted fact on record that the revisionist is the husband and respondent No.1 is the wife and minor daughter-Baby Harsha respondent No.2 was born out of the wedlock and there is no dispute of paternity qua respondent no.2.

12. The learned counsel for the respondents further submitted that the revisionist being husband is under legal obligation to maintain his wife as well as the minor daughter. He further submitted that though it is an admitted fact that the wife/respondent No.1 has qualified physiotherapy examination as an education qualification; that educational qualification ipso facto does not brings any competency or capacity to earn any livelihood. It is for the husband to maintain his wife and minor daughter.

13. The learned counsel for the respondents has submitted that the revisionist is doing medical practice apart from rental income and earning huge amounts through investments and the revisionist has himself admitted earning an amount of Rs. 7 lakhs per month. It is submitted that the orders of the Courts below are based on evidence available on record and it is prayed that the present revision petition be dismissed for want of merit.

14. The learned counsel for the respondents has relied upon the following judgments:-

1) Shalija & Anr. v. Khobbanna, MANU/SC/0537/2017.

2) Sunita Kachwaha & Ors. v. Anil Kachwaha; 2014 42 SCD

15. It is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means. The mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child.

16. It is an admitted fact coming on record that the main application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is pending before the Trial Court. The determination of the same will be done by the Trial Court after leading of evidence by the respective parties and on the basis of material documents and income affidavits of the parties.

17. The Apex Court in Noor Khatoon vs. Mohd. Quasim; 1997 Crl. L.J. 3972 has made the observation that a father having sufficient means has the obligation to maintain his minor children who are unable to maintain themselves till they attain majority and in case of females till they get married.

18. Furthermore, in the instant petition it is an admitted case on record that the minor child is staying with the respondent No.1/mother, and since the respondent No.1 and the minorchild/respondent No.2 are to be maintained by the revisionist and even the paternity is not disputed therefore, in the absence of denial of existence of the marriage and denial of paternity of the minor child the revisionist cannot shy away from his statutory obligation of maintaining his legally wedded wife and his minor child.

19. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds. Reliance is placed on the judgment of the Hon’ble Punjab and Haryana High Court in the case Dr. R.K. Sood vs. Usha Rani Sood; 1996 (3) 114 PLR 486 and the relevant paragraph is reproduced as under:-

“17. Under the Hindu Law father not only has a moral but even a statutory obligation to maintain his infant children. The scope of his duty is to be regulated directly in relation to the money, status, that the father enjoys. The right of maintenance of a child from his father cannot be restricted to two meals a day but must be determined on the basis of the benefit, status and money that the child would have enjoyed as if he was living with the family, including his mother and father. Irrespective of the differences and grievances which each spouse may have against the other, the endeavour of the Court has to be to provide the best to the child in the facts and circumstances of each case and more so keeping the welfare of the child in mind for all such determinations. Liability to maintain one’s children is clear from the text of this statute as well as the various decided cases in this regard. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds.”

20. The contention of the learned counsel for the revisionist that the revisionist is unemployed and he is unable to pay the maintenance amount is a matter of dispute which will be determined by the Trial Court during the course of trial and not by this Court at this stage.

21. However, the order dated 03.06.2014 passed by the learned Metropolitan Magistrate is an interim maintenance and the determination of the main maintenance application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is yet to be decided. The interim maintenance granted by the trial Court is without prejudice to the rights and contentions of the parties.

22. In view of the aforesaid discussion, I find no infirmity in the impugned order dated 21.11.2014 passed by the learned Additional Sessions Judge-3, Dwarka Courts, New Delhi in Criminal Appeal No. 42 of 2014. The present revision petition filed by the revisionist is dismissed.

However, this judgment shall not affect the merits of the case, application under Section 12 of DV Act pending between the parties as the determination of the maintenance amount will be done by the Trial Court after considering the evidence on record and income affidavits of the parties.

23. The present petition is disposed of in the above terms. The Trial Court is directed to dispose of the application under Section 12 of DV Act filed by the respondent-wife as soon as possible and preferably within a period of six months from the date of this judgment.

24. Let one copy of this Judgment be sent to the concerned Court(s).

25. Trial Court Record be sent back to the concerned Court forthwith.

26. All the pending applications (if any) are disposed of accordingly. No order as to Costs.

I.S.MEHTA, J.

OCTOBER 11, 2017

Despite specific direction to surrender before the court of magistrate, the prayer of anticipatory bail is maintainable.

Calcutta High Court (Appellete Side)
An Application For Anticipatory … vs Unknown on 22 September, 2017
                                1




22.09.2017

C.R.M. 8216 of 2017 In the matter of: An application for anticipatory bail Under Section 438of the Code of Criminal Procedure, 1973.

In the matter of: Siraj Roy ….Petitioner Mr. Milan Kumar Mukherjee, Ms. Ruby Mukherjee ….for the petitioner.

Mr. P. K. Dutta, Ld. Addl. PP Mr. Subrata Roy ….. for the State.

Mr. Sandipan Ganguly Mr. Saryati Dutta …..for the de facto complainant.

Apprehending arrest in connection with Amherst Street Police Station FIR No. 343 of 2016 dated 25.10.2016 under sections 506/509/114 of the Indian Penal Code (hereafter the IPC), with added Section 376 of the IPC, the petitioner has approached this Court for a pre-arrest direction of bail under Section 438 of the Code of Criminal Procedure (hereafter the Cr. P.C.).

The case of the prosecution in brief is that the aforesaid FIR was registered on the basis of an information given by the defacto complainant to the effect that the accused persons being aided and abetted by one another used abusive language towards the defacto complainant and thereby they have interfered with her modesty. Moreover, the petitioner including the other accused persons have also threatened the defacto complainant with dire consequences.

In course of investigation, the defacto complainant was produced before the learned magistrate and her statement was recorded under Section 164 of the Cr.P.C. In the meantime, all the accused persons surrendered before the learned Court below and they have been granted bail till 28th November, 2017.

During investigation, the investigating officer submitted a prayer for adding Section 376 of the IPC against Siraj Roy. Pursuant thereto, Section 376 of the IPC was added against the petitioner and his bail was cancelled. The learned magistrate issued warrant of arrest against the petitioner.

Challenging the said order of the learned magistrate, the criminal revisional jurisdiction of this Court was invoked by filing CRR 1255 of 2017. A learned Judge of this Court was pleased to reject the said application holding inter-alia that the learned magistrate was perfectly justified in cancelling the bail of the petitioner and as follow up action, by issuing warrant of arrest against the him. While passing such order, the learned Judge granted liberty to the petitioner to surrender before the Court of the learned Magistrate and pray for regular bail in accordance with law, if so advised.

In this backdrop of facts and circumstances, the petitioner has filed this application.

Mr. Sandipan Ganguly, learned senior advocate appearing on behalf of the defacto complainant has raised the question of maintainability of the application on the ground that the petitioner did not comply with the direction given by the learned Judge in CRR 1255 of 2017 and that the petitioner cannot pray for anticipatory bail since His Lordship specifically directed the petitioner to surrender before the Court of the learned Magistrate. He further contended that the scope of prayer for bail under Section 438 of the Cr.P.C. may be restricted, which would be evident from the decision reported in (2012) 8 SCC 730 (Lavesh Vs. State). He vehemently contended that the learned Judge has virtually restricted the scope of taking recourse to the provision of Section 438 of the Cr.P.C. in view of the specific direction for surrender before the Court of the learned Magistrate.

Mr. Milan Kumar Mukherjee, learned senior advocate appearing on behalf of the petitioner contended that the question of maintainability in the similar fact situation was dealt with by a coordinate Bench of this Court in C.R.M. 11409 of 2015 (Sayantan Chatterjee v. State) wherein Their Lordships held that despite direction by the Single Bench to surrender before the Court of the learned Magistrate, the prayer for anticipatory bail is maintainable. He has further relied on the decisions reported in AIR 1980 SC 1632 (Shri Gurbaksh Singh Sibbia and Ors. Vs. State of Punjab), (2011) 1 SCC (Cri) 514 (Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others) and (2016) 1 SCC 152 (Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another) in support of his contention. He candidly contended that the Hon’ble Apex Court has specifically observed in Siddharam Satlingappa Mhetre (supra) that the Hon’ble Court cannot even give direction for surrender in the Court below even after granting of anticipatory bail since such order amounts to interference with the liberty of the citizen. Also, in the similar fact situation the Hon’ble Supreme Court, in Bhadresh Bipinbhai Sheth (supra) has granted anticipatory bail setting aside the order of the High Court. In the premises set forth above, he submitted that no such direction can be given for surrender in the Court below even after grant of anticipatory bail, far to speak of rejection of such prayer for anticipatory bail.

A Constitution Bench of the Hon’ble Supreme Court dealt with Section 438 of the Cr.P.C. in Shri Gurbaksh Singh Sibbia (supra) and has enunciated the principle of law of anticipatory bail in paragraphs 40 to 44, which may be set out hereunder:-

“40. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must; show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail H will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

41. Secondly, if an application for anticipatory bail made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned Under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.

42. Thirdly, the filling of a First Information Report is not a condition precedent to the exercise of the power Under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.

43. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.

44. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he ‘is arrested, are concerned. After arrest, the accused must seek his remedy Under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.”

The aforesaid decision is an authority for the proposition that even filing of an FIR is not a condition precedent to the exercise of power under Section 438 of the Cr.P.C. The imminence of likely arrest founded on a reasonable belief can be shown to exist, even if an F.I.R. is not yet filed.

Admittedly, a warrant of arrest has been issued against the petitioner and, therefore, the petitioner has reasonable apprehension that he may be arrested by the police in terms of the warrant of arrest issued by the learned magistrate. In view of the ratio in Shri Gurbaksh Singh Sibbia (Supra), the petitioner is thus entitled to apply for anticipatory bail under Section 438of the Cr.P.C.

In Siddharam Satlingappa Mhetre (supra), it has been observed by the Apex Court in paragraphs 112 and 113 as follows:

“112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of Section 438 Code of Criminal Procedure. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

113. It is a settled legal position crystallized by the Constitution Bench of this Court in Sibbia’s case (supra) that the courts should not impose restrictions on the ambit and scope of Section 438 Code of Criminal Procedure which are not envisaged by the Legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.”

Moreover, in the decision reported in (2003) 2 SCC 649 (M. C. Abraham and Anr. Vs. State of Maharashtra and Ors.) it has been observed that even rejection of anticipatory bail does not give the jurisdiction to the Court to direct the petitioner to surrender in the Court below. The last portion of paragraph 15 may be quoted from the said decision for proper appreciation:

“The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the Court on mere apprehension that he may be arrested. The Court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the Court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations.”

It is therefore clear from the aforesaid decisions that the instant application is maintainable in law and we cannot subscribe to the views expressed by Mr. Ganguly in respect of the maintainability of the application under Section 438 of the Cr.P.C. The objection is overruled.

We now proceed to decide the application on merits.

Mr. Mukherjee appearing on behalf of the petitioner contended that he has been falsely implicated in connection with this case and long after registration of the FIR a case under Section 376 of the IPC has been made out by the defacto complainant only to feed fat her grudge against the petitioner and to keep him behind the bar.

Mr. Dutta, learned Additional Public Prosecutor appearing on behalf of the State raised objection to the prayer for anticipatory bail on the ground that the defacto complainant has stated in the statement recorded under Section 164 of the Cr.P.C. that she was subjected to sexual assault by the petitioner.

We have carefully gone through the materials collected in course of the investigation. The case under reference was started on 25th October, 2016 with the allegations that on 22nd October, 2016 the accused persons insulted the defacto complainant with abusive languages and thereafter the accused persons surrendered before the learned magistrate and they were accordingly granted bail. The statement of the defacto complainant was recorded under Section 164 of the Cr.P.C. on 27th November, 2016 and thereafter the investigating officer prayed for adding Section 376 of the IPC. On careful scrutiny of such statement of the defacto complainant, the question of consent cannot be ruled out. Moreover, the principal dispute between the parties revolves round taking of loan and non-payment of such loan amount etc.In the context of the given facts and circumstances of this case, we are of considered view that custodial interrogation of the present petitioner is not required for effective and meaningful investigation of this case. Thus, we direct that in the event of arrest the petitioner may be released on bail with two sureties of Rs.10,000/- each on condition that the petitioner shall not enter the jurisdiction of Amherst Street Police Station for the coming six months or till date of filing of the report in final form under Section 173(2) of the Cr.P.C., whichever is earlier, and on conditions as stipulated under Section 438(2) of the Cr.P.C.

The prayer for anticipatory bail is allowed and the application, accordingly, stands disposed of.

Urgent photostat copy of this order be supplied to the parties, if applied for, upon compliance with all requisite formalities.

(Debi Prosad Dey, J.) (Dipankar Datta, J.)