How to get stay order against section 125 CrPC

Question asked on: 27/01/2018

My wife filed a case under section 125 crpc for Maintenance in JMFC Court in the year 2013. The court has decided it ex-parte and granted to pay rupees 6000 per month as maintenance. In the meantime, the Family court has also granted alimony under section 24 of the Hindu marriage act.

The Family court has ordered to pay a monthly allowance of rupees 14000 per month. When the court did not take into account the order of family court while deciding the petition under section 125 crpc, she is trying to harass me by filing multiple cases. How could I get stay order?

Advised by: Shivendra Pratap Singh,

A wife is not entitled to get dual maintenance, whereas she is receiving the same in your case. It was the duty of your advocate to inform the court about the judgment of the family court. However, section 24 of the Hindu Marriage Act (HMA) provides interim maintenance, but the court considers it at the time of passing the order under section 125 crpc.

Well, at this stage, you should file an application under section 126(2) of the crpc for setting aside his ex-parte order. It is a rule that when the magistrate decides the alimony u/s 125, he should take evidence in the presence of the husband. Consequently, the ex-parte order is liable to be set aside because no evidence has recorded in your presence. You have three months limitation period to file such an application.

In the application above, you can submit the certified copy of the order of family court passed under section 24 HMA. You may request the court to consider both maintenance orders and amend its order with immediate effect.

Section 127 crpc empowers the Magistrate to modify the order of maintenance order if the circumstances of the parties satisfy to do so. The Magistrate can stay its order if he thinks that the wife has been receiving adequate maintenance. In the current scenario, your wife has been getting a massive amount as maintenance under section 24 HMA. Hence, the court may stay its ex-parte order passed under section 125 crpc.

Your wife did nothing wrong to filed both petitions simultaneously because she has the right. Indeed, it is your fault that you did not inform the court at the right time that one more order of maintenance has granted under section 24 HMA.

In Sanjay Kumar Sinha v. Asha Kumari, (2018) 5 SCC 333; the Supreme Court held that passing of maintenance under section 24 HMA stands superseded the order passed under section 125 and now no longer contains the field.

According to the judgment of the supreme court in Sanjay Kumar case, the maintenance under section 24 HMA may supersede the ex-parte order of 125 crpc. You should be borne in mind that order passed under section 125 is tentative in nature.

In N. Natikar Vs Neelamma (2015) 1 SCC (Civ) 346; the Supreme Court held that order made under Section 125 CrPC is tentative.

Unless and until the wife gets permanent alimony under section 25 HMA or section 18 of the Hindu Adoption and Maintenance Act or interim maintenance under section 24 of the HMA, the order under section 125 crpc shall remain in force.

In Pallavi v Sachin 2012 (3) MPLJ; the Madhya Pradesh High Court held that if interim maintenance granted under section 24 of the HMA is in force, the wife would not be entitled to separate alimony under section 125 CrPC.

Upon perusal of the above judgments, it is thus clear that in your case, the court should stay its ex-parte order of maintenance. You should move an application for setting aside the ex-parte order and stay of proceedings due to changes in circumstances of the case.

The court may stay the proceeding because your wife is already receiving enough maintenance. More importantly, she is getting gets dual maintenance, which indeed fails the object of section 125 CrPC.

In Sumita Ganguly v Debasish Ganguly (2010) 1 Cal LT 442; the Calcutta High Court held that maintenance granted under section 24 HMA then order pass under section 125 CrPC shall be adjusted against each other and the husband is only obliged to pay a higher amount of maintenance.

Your wife has been receiving higher maintenance under section 24 HMA besides an order under section 125. She has to stick with one and left the another. For the ends of justice, your wife has to withdraw maintenance under section 125 crpc.

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Shivendra Pratap Singh

Advocate, Lucknow

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