In its recent judgement dated September 02, 2021, the Calcutta High Court referred to a larger Bench the legal issue as to ‘whether a wife can claim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) after the marriage has been dissolved by a divorce decree on mutual consent under Section 13B of the Hindu Marriage Act and the payment of a lump sum amount has been made to the wife as full and final settlement for past, present and future maintenance.’
Case:
In 2014, the wife had filed an application under Section 125 of the Code of Criminal Procedure, demanding an interim maintenance of Rs 10,000 per month to be paid during pendency of the case.
In the instant case, the husband had been instructed by the Alipore Magistrate Court on May 4, 2015 to pay Rs 3,000 as interim maintenance per month from the date of the order till disposal of the case after his wife had made an application under Section 125, CrPC seeking maintenance.
On May 5, 2015 an application for dissolution of marriage had been moved by the husband under Section 13B of the Hindu Marriage Act, 1955. Consequently, the Court was apprised that both the parties had arrived at an amicable settlement wherein it was agreed that the husband would pay a sum of Rs 2.5 lakhs as a full and final settlement for past, present and future maintenance. The order then stated,
The husband shall once and for all pay a consideration amount of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) only to the petitioner no.2 i.e. the wife as full and final settlement for past Present and future maintenance and this is unequivocally agreed in presence of the parents, well-wishers and friends of both the parties that henceforth the petitioner No.2 shall stated absolutely ceased, relinquished and forego from any claims and demands against the petitioner no.1 for her maintenance as well as in respect of any of his movable and immovable properties.
Mutual Consent Divorce Granted
In November 2015, the Additional District and Sessions Judge, Chandannagore had passed a decree of divorce on mutual consent. During cross-examination, the wife also confirmed before the Court that she had indeed received Rs 2.5 lakh as lumpsum maintenance. This was also recorded in the November 2015 order.
Husband Moves Court For Alteration In Maintenance Order
After the mutual consent divorce was granted, the husband moved an application under Section 127 CrPC (alteration in allowance) before the Alipore Court seeking the setting aside of the earlier proceedings for maintenance since he had already paid Rs 2.5 lakh as lumpsum maintenance.
However, the Alipore Magistrate declined to entertain the application after observing that there was ‘no whisper’ of the Section 125, CrPC proceedings in the application made under Section 13B of the Hindu Marriage Act. After the dismissal of the Section 127, CrPC application, the husband moved the High Court for relief.
Calcutta High Court
Before the High Court, Advocate Pratim Priya Dasgupta, the counsel for the husband asserted that once the wife made a declaration and accepted on oath before the Civil Court regarding the amount of maintenance she is subsequently debarred from making any claim under the provisions of Chapter IX of the Code of Criminal Procedure.
On the other hand, Advocate Ayan Bhattacherjee, counsel for the wife, contended that even after a lump-sum amount is received under Section 13B of the Hindu Marriage Act, she would still be entitled to claim maintenance under Section 125, CrPC.
Both parties relied upon a series of judgments to support their contentions.
The High Court noted that there existed contradictory rulings on this issue and further took into consideration that recently the Supreme Court in the case of Rajnesh v. Neha had laid down extensive guidelines on payment of maintenance in matrimonial matters.
Legal Position Before Court
Once it comes to the knowledge of the Magistrate that the marriage between the parties have been dissolved by a decree of divorce under the relevant provisions of Section 13B of the Hindu Marriage Act and it is found that the wife has received a lump-sum amount as onetime payment towards maintenance, what would be the procedure adopted in the following circumstances?
(a) A fresh case under Section 125 of the Code of Criminal Procedure is filed.
(b)The proceedings under Section 125 of the Code of Criminal Procedure was pending and the Civil Court has dissolved the marriage by decree of divorce and there was no information before the Civil Court regarding the pendency of the proceedings under Section 125 of the Code of Criminal Procedure.
(c) Procedure/steps to be adopted by the Magistrate if the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under Section 13B of the Hindu Marriage Act (which has already been decided) are in different sub-divisions or different districts or different States.
As the aforesaid questions involve serious ramification so far as the proceedings under Section 125 of the Code of Criminal Procedure are concerned, I am of the view that the same is to be referred and settled by a Larger Bench (as there are conflicting judgments of this Court on the point). Accordingly, the record of the case be placed before The Hon’ble The Chief Justice (Acting), High Court at Calcutta.
The matter was thus referred to a larger Bench.
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Another case of Judicial incompetence. The entire matter rests on the primary relationship of matrimony. 125 CrPC is just a cheap and convenient mode of enforcing maintenance. I can guess why these CrPC proceedings was not mentioned in the Compromise Memo for the fact there is an archaic principle that criminal proceedings cannot be compromised unless specifically permitted to do so under CrPC. Maybe 125 CrPC cannot be compromised under that rule. Or maybe it is case of oversight and bad drafting in not mentioning it in the Compromise Memo. But whatever the case may be, once comprehensive alimony is paid and the civil court has concluded decisively, there is no reason for this CrPC proceeding to be kept pending. The Judiciary is moaning about backlog and CJI has recently said ADR must be actively pursued. How can that be achieved if the Judiciary is so technical in its approach?