Case name: Rakesh Malhotra (Appelant) Vs Krishna Malhotra (Respondant)
Case no.: Criminal Appeal No(s).246-247/2020 SC
Coram: Justice Uday Umesh Lalit and Justice Vineet Sharan
Let us first understand what Section 25 of Hindu Marriage Act 1955 states in brief and then will discuss the facts and order given by Hon’ble Supreme Court.
Section 25 (Hindu Marriage Act): Permanent alimony and maintenance:
Section 25(1) states that any court exercising jurisdiction under this Act may on application made to it for the purpose by either the wife or the husband, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, the conduct of the parties and other circumstances of the case it may seem to the court to be just, and any such payment may be secured (means if amount is not paid then that property may be sold for proceeds of maintenance), by a charge on the immovable property of the respondent.
Section 25(2) states that the court may vary, modify or rescind any order made under sub-section (1) in case there is change in circumstances.
Section 25(3) states that the court may vary, modify or rescind any order made under sub-section (1) in case other party has remarried or not remained unchased or if party is husband, he had sexual intercourse with any woman outside wedlock.
Section 125 of CrPC states the maintenance of wives, children and parents.
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 Hindu Marriage Act 1955???
The marriage was dissolved between the parties on 20.02.2013, in which the Addl. District Judge ordered the husband to pay Rs.13,750/- per month (throughout the life if she does not marries). The husband approached in appeal against the order of the judge, which is still pending.
An application seeking maintenance under Section 125 Code of Criminal made by the wife, which was dismissed by the concerned Court (filed in 2005 but rejected in 2014). The challenge was raised in 2014 by the wife against such rejection before the High Court and which was allowed. The court on the basis of her earlier permanent alimony (Rs.13,750/- per month) awarded her further amount of Rs.5000 per month under Section 125 from the date on which application was rejected by lower court.
Further, now applications has been made by the appellant-husband before the Apex Court seeking variation/modification in the sum of permanent alimony on the basis that after passing of the order, the appellant has retired from Army and as such is not getting emoluments at the same rate.
1. The Supreme Court referred to the case of Supreme Court Sudeep Chaudhary vs. Radha Chaudhary [(1997) 11 SCC 286] on which High Court relied in appeal while granting an amount of Rs.5000 (in addition to 13,750). In Sudeep Chaudhary, the initial order was passed by the Magistrate under Section 125 of the Code and subsequently in proceedings under the Act, interim maintenance was granted while exercising power under Section 24. It was in the context of these facts, this Court observed that despite the award of maintenance under Section 125 of the CrPC, the wife was competent to maintain the proceedings under Section 24 of the Act. However, this view was rejected by the Supreme Court in this case because circumstances in this case were contrary as in the present case.
2. The Supreme Court held that since the Parliament has empowered the Court under Section 25(2) of the Hindu Marriage Act 1955 and kept a remedy intact (complete) and made available to the concerned party seeking modification, the logical conclusion would be that the remedy so prescribed (u/s 25 HMA) ought to be exercised rather than creating multiple channels (for maintenance u/s 125) of remedy seeking maintenance. The Court here is trying to say that multiple channels for claiming the maintenance should not be used. In present case, the wife has already got maintence under section 25 of HMA but subsequently she made another application for maintenance under Section 125 CrPC.
3. On the basis of these circumstances, the Supreme Court set aside the view taken by the High Court and directed 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. Which means modification or vary or rescind the order of maintenance in the case of change in the circumstances. Therefore, after grant of permanent alimony under Section 25 of the Act, a prayer cannot 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 Hindu Marriage Act 1955.
Read Complete Order: Click Here