The Bombay High Court on February 18, 2019, in the case of Shivaji Tukaram Davargave v. Chaya, has held that offer of maintenance under Section 125 of the Code of Criminal Procedure, 1973, by the husband cannot be filed after proceedings initiated by the wife was concluded and maintenance order in her favour has attained finality.
The point of consideration that came before Justice Mangesh S. Patil was whether the husband can make an offer to maintain his wife as contemplated in the Second Proviso to Sub Section 3 of Section 125 of the Code of Criminal Procedure even after the proceeding for maintenance under Sub-Section 1 of Section 125 is concluded, in a proceeding initiated by the wife for enforcement of the order of maintenance as contemplated under Section 125 (3)?
In this case, the wife had succeeded in her claim of maintenance made under Section 125 (1) CrPC made before a Magistrate. When the order was at the stage of execution, the husband filed an application invoking the second proviso to Section 125(3) CrPC, offering to maintain his wife.
The learned counsel, appearing for the petitioner contended before the court that the wife and child of the petitioner-husband were not entitled to claim the maintenance passed in their favour, since they were refusing the offer to maintain them and staying separately without sufficient reason.
However, the magistrate rejected his application, as did the Additional Sessions Court in a plea for revision. Aggrieved by the said order, the petitioner moved to Bombay High Court.
The court noted that the phrasing of the proviso invoked itself indicated that a husband’s offer to maintain his wife should be madebefore the final order is passed in the maintenance claim initiated by the wife.
“Use of the word ‘section’ in this proviso and not ‘sub section’ is conspicuous and makes it abundantly clear that such an offer by the husband and the refusal by the wife is to be considered while considering the latter’s request/claim for maintenance. In my considered view, it cannot be interpreted to mean that even after the Magistrate has awarded maintenance and the proceeding under Sub Section 1 of Section 125 is concluded in favour of the wife, her husband could raise an offer to maintain her while she is seeking to execute the order,” the judgment reads.
The court also made an observation that “…The proviso cannot be interpreted to mean that the parties are to be relegated to the initial stage allowing them to lead evidence to prove and disprove the offer being made by the husband. Otherwise, there would be no finality and it would be always open for the husband to make an offer at every attempt by the wife to recover the allowance and protract the matter incessantly.”
Further, the court also said that “One cannot forget that in Chapter IX, a summary proceeding and a speedy remedy is contemplated to enable a wife and minor children and parents who have been neglected or refused, to claim maintenance. Any interpretation sought to be placed on Second Proviso of SubSection 3 which runs counter to the object of providing for a speedy remedy to recover maintenance needs to be scuttled down.”
In view of the observations made, the court held that “… any offer to be made by the husband to maintain the wife as contemplated under Second Proviso to SubSection 3 of Section 125 has to be made only during the hearing of a proceeding under SubSection 1 of Section 125. Once that proceeding is decided, no such offer can be made or entertained in a proceeding under SubSection 3 for issuance of warrant for recovery of maintenance allowance.”
The court, therefore, affirmed the lower court rulings in the case and dismissed the husband’s petition.
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