When a petition filed by a wife under Section 125 of the CrPC can’t be entertained?
A petition filed by a wife under Section 125 of the CrPC can’t be entertained if she had previously granted permanent alimony under Section 25 of the Hindu Marriage Act.
The bench comprising of Justices Uday Umesh Lalit and Vineet Saran of Apex Court ruled this in the case of RAKESH MALHOTRA vs. KRISHNA MALHOTRA [Criminal Appeal No(s).246-247/2020].
Issue before the Court in this case
Whether after grant of permanent alimony under Section 25 of the Act, a prayer can be made before the Magistrate under Section 125 of the Code for maintenance over and above what has been granted by the Court while exercising power under Section 25 of the Act.
Finding and observation of the Apex Court
- The Court while scrutinizing the scope of Sec 25 of the Hindu Marriage Act observed that: Section 25(1) of the Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court. At the stage of passing a decree for dissolution of marriage, the Court thus considers not only the earning capacity of the respective parties, the status of the parties as well as various other issues. The determination so made by the Court has an element of permanency involved in the matter. However, the Parliament has designedly kept a window open in the form of subsections (2) and (3) in that, in case there be any change in 5 circumstances, the aggrieved party can approach the Court under sub-section (2) or (3) and ask for variation/ modification. Since the basic order was passed by the concerned Court under Section 25(1), by very nature, the order of modification/variation can also be passed by the concerned Court exercising power under Section 25(2) or 25(3) of the Act.Advertisement
- Since the Parliament has empowered the Court under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act or similar such enactments. But the reverse cannot be the accepted norm.
- The bench further held that the application preferred under Section 125 of the Code shall be treated and considered as one preferred under Section 25(2) of the Act.
[When a petition filed by a wife under Section 125 of the CrPC can’t be entertained?]
Also Read: Maintenance under Section 125 of CrPC