Vandana Shah vs Jamuna Prasad Shah

ORDER

“3.

It is submitted that once the application under Section 125 of Cr.P.C. has been dismissed, therefore, the arrears of interim maintenance cannot be recovered. ---

6.

Furthermore, counsel for applicant could not point out any provision of law which requires that in case if application under Section 125 of Cr.P.C. is dismissed, then applicant shall also stand absolved from his liability to pay arrears of interim maintenance

7.

Under these circumstances, this Court is of considered opinion that Trial Court did not commit any mistake by issuing an arrest warrant for recovery of arrears of interim maintenance.”

“12.

The respondent in her application for execution of the interim order has stated that the husband had not complied the order of maintenance. It is also stated that the application u/s 12 of the Protection of Women From Domestic Violence Act, was dismissed for default on 15.12.2014. She had preferred restoration petition, which was registered as Criminal Miscellaneous Application No.36 of 2015, which was withdrawn with permission of the Court. Liberty was granted to prefer fresh application. The husband was a mute spectator to the order dated 3.9.2012. His appeal was dismissed for default. The proceedings were transferred by consent of both the parties in the application preferred by the husband. The husband could not get any relief from the High Court. He is reluctant to pay maintenance. It was therefore, prayed that the husband be directed to pay maintenance amount. The Family Court decided the objection petition preferred by the petitioner. The said application was filed on 21.3.2016. The respondent opposed the same on the ground that it is misconceived. The provisions of Code of Civil Procedure are not applicable to the execution under the Protection of Women From Domestic Violence Act. The execution of maintenance order is required to be considered in accordance with provisions of Code of Criminal Procedure and not Code of Civil Procedure. Thus, it is apparent that the execution was qua the order of maintenance. The Family Court rejected the objection petition vide order dated 23.6.2016. The Court has also considered the objection regarding jurisdiction of the said Court in entertaining the said application. The Court observed that though the application under the provisions of the Protection of Women From Domestic Violence Act was filed at Nanded, the same was transferred to the Family Court by the High Court. The application was dismissed for default on 15.12.2014. As the matter was transferred to the said Court, it has jurisdiction to execute the order passed in the said matter. Although the main application was dismissed, the applicant wife is entitled to recover the arrears of interim maintenance till the date of dismissal. The contention of the petitioner that on account of dismissal of the main application, the claim of interim maintenance gets frustrated, was rejected. It was further observed that the execution orders passed under the Protection of Women From Domestic Violence Act, are guided by the Code of Criminal Procedure and not Code of Civil Procedure.”

“2.3.

The learned Family Court, however, addressed the issue with due care and consideration. Upon detailed examination of the facts and legal position, the learned Judge held that the interim maintenance order remained effective and executable, notwithstanding the subsequent dismissal of the main petition for want of prosecution.”

“8.

There is no dispute regarding legal proposition that Magistrate exercising powers under Section 125(2) Cr.P.C. is entitled to specify the date from which the applicant would be entitled for maintenance. It is not in controversy that Magistrate has got a power to grant interim maintenance w.e.f. any date during pendency of the proceedings under Section 125 Cr.P.C. There is also no dispute regarding legal position that the interim order merges into final order and the interim orders cease to exist when final order is passed but the said principle of law cannot be applied in the present case to nullify the relief which has been granted to the wife as interim maintenance @ Rs.15,000/- per month from 05.01.2012 i.e. the date of application. The principle of merger of interim order into final order would mean that interim relief granted to a party will cease to exist on the day when the final order is passed and that from the date final order is passed, the rights conferred upon a party would be enforceable as per the final order. It does not mean that the interim order would be nullified on passing of the final order. In case the proposition propounded by the learned counsel for the petitioner is accepted, it will tantamount to holding that on passing of the final order, the interim relief which has been granted to a party would be null and void. 9.---

10.

It is a settled principle of law that while interpreting the judgment of Supreme Court by a High Court, the facts and circumstances of the case in which the order is passed; have to be carefully scrutinized while following the dictum. The judgment of the Apex Court cited by the learned counsel for the petitioner does not lay down a rule of law that interim order will be nullified on passing of the final order. Only interpretation of the words used in the judgment would be that the interim relief granted to a party will cease to exist after the passing of a final order but any benefit accrued out of interim order will not cease to be executable. The principle of merger if applied in the present case would mean that the wife-respondent is entitled to interim maintenance @ Rs.15,000/- per months from 05.01.2012 till 22.07.2014 but she is entitled to maintenance @ Rs.20,000/- per month w.e.f. 22.07.2014 as the interim order merges into the final order and would cease to exit. The words "cease to exist" will not be meant to nullify the interim relief granted to the respondents vide interim order dated 12.06.2012”