THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA
RAO
CRIMINAL REVISION CASE Nos.1357
AND 1374 OF 2014
COMMON
ORDER:
The Crl.R.C.Nos.1357
and 1374 of 2014 is filed under Sections 397 and 401 Cr.P.C against the common
order dated 09.06.2014 in M.P.No.59 of 2013 and M.P.No.49 of 2014 for execution
and recovery pursuant to the order in Crl.M.P.No.29 of 2011 dated 26.09.2011 in
O.P.No.1503 of 2010 on the file of the Judge, Additional Family Court,
Vishakapatnam, by the respondent-husband in the said O.P. as well as in
Crl.M.P.Nos. 29 of 2011, 59 of 2013 and 49 of 2013 that are filed by his wife.
The M.P.59 of 2013 is filed by her under Section 128 of Cr.P.C. seeking
direction to the revision petitioner-husband to pay interim maintenance at
Rs.3,000/- per month as made in Crl.M.P.No.29 of 2011 dated 26.09.2011.
The M.P.No.49 of 2013 is filed by her to recover the arrears of
Rs.49,000/- payable by him towards the interim maintenance as awarded in
M.P.No.29 of 2011. The learned trial Judge after hearing both sides, held that
though the payments go to show that the revision petitioner-husband is paying
amounts but they were at his whims and fancies, but not as ordered by the High
Court and under those circumstances the interim suspension order passed by the
High Court deemed to have been vacated, as the revision petitioner-husband has to
pay an amount of Rs.3,000/- per month since 27.12.2010 for a total of
Rs.1,14,000/- due by 27.02.2014 and out of which, Rs.83,500/- shall be deducted
of what he paid and the balance due comes to Rs.30,500/- as on 27.02.2014 and by
27.06.2014 it is another Rs.3,000/-x 4= Rs.12,000/-, total of which comes to
Rs.42,500/- and allowed both the petitions by the common order in directing the
revision petitioner-husband to deposit Rs.42,500/- which he should clear in two equal monthly
instalments commencing from 27.06.2014 (1st instalment falls) and
27.07.2014(2nd instalment), otherwise he shall be sent to civil
prison. It is impugning the same the two revisions are maintained.
2.The common contentions
of the revision petitioner-husband in both the revisions are that the learned
judge failed to appreciate that the revision respondent-wife having received
the money for so many months, came up with the petition for extracting money
without performing the matrimonial obligation, that the learned judge failed to
appreciate the fact that the revision respondent-wife having accepted the money
in excess belatedly came up with the petition for alleged violation of the
orders of this Court. The revision petitioner-husband further submitted during
the hearing that his earnings are meagre and he was promptly depositing the
amounts, that the learned Judge failed to consider the amounts paid by the revision
petitioner-husband on 12.12.2011 though Demand Drafts No. 3658 for Rs.10,000/-
and wrongly come to the conclusion and gave verdict against the revision
petitioner-husband without there being any jurisdiction, that the learned Judge
ought to have directed the revision respondent-wife to seek clarification from
the High Court as the trial Judge cannot sit over for interpretation of the
High Court orders and hence to set aside the common orders dated 09.06.2014 in M.P.No.59
of 2013 and M.P.No.49 of 2013.
3. Whereas, it is the contention of the learned
counsel for the revision 1st respondent(wife of revision petitioner)
that there are no merits in the revision cases to sit against the well
considered common order of the trial judge and hence to dismiss the same.
4. Heard and
perused the material placed on record. The parties herein after are referred as
they were arrayed in M.P.Nos.59 of 2013 and M.P.No.49 of 2013 by the trial
Court as petitioner-wife and respondent-husband for sake of convenience.
5. Now the common points that arise
for consideration in both the revisions are:
1.
Whether the impugned common orders dt.09.06.2014 in M.P.Nos.59 of 2013 and 49
of 2013 passed by the learned Judge, Additional Family Court, Vishakapatnam, are
unsustainable, if so with what observations?
2. To what
result?
Point No.1:
6. The relationship between the parties and the
order made in Crl.M.P.No.29 of 2011,dated 26.09.2011 in the pending O.P.No.1503
of 2010 and the revision filed against said order in M.P.No.29 of 2011 in
Crl.R.C.No.2281 of 2011 and the interim order of stay granted therein
Crl.R.C.M.P.No.3428 of 2011 dated 07.11.2011 subject to payment of half of the
amount and to clear the arrears by 30.12.2011 not in dispute; but for the
dispute on the executability of the order in Crl.M.P.No.29 of 2011 dated
26.09.2011 by virtue of the order in Crl.R.C.M.P.No.3428 of 2011 saying the
same has been complied with and there are no arrears and as such the M.P.Nos.49
and 59 of 2014 won’t lie and the trial Judge did not properly consider those aspects.
In deciding the same, it is
important to note how far said order is in compliance. For that the calculation
memo filed by the revision petitioner-husband in both the revisions is one and
the same and the same is as follows:-
|
Sl.No.
|
Date
|
Amount
Rs.
Ps.
|
|
1
|
28-12-2011
|
10,000/-
|
|
2
|
12-04-2012
|
15,500/-
|
|
3
|
25-06-2012
|
18,500/-
|
|
4
|
07-07-2012
|
1,500/-
|
|
5
|
16-08-2012
|
1,500/-
|
|
6
|
04-09-2012
|
1,500/-
|
|
7
|
15-10-2012
|
1,500/-
|
|
8
|
05-11-2012
|
1,500/-
|
|
9
|
14-06-2013
|
18,500/-
|
|
10
|
10-08-2013
|
3,000/-
|
|
11
|
18-10-2013
|
3,000/-
|
|
12
|
15-01-2014
|
3,000/-
|
|
13
|
15-03-2014
|
3,000/-
|
|
14
|
04-04-2014
|
1,500/-
|
|
15
|
25-06-2014
|
21,250/-
|
|
16
|
28-07-2014
|
21,250/-
|
|
17
|
01-09-2014
|
3,000/-
|
|
|
Total
|
1,29,000/-
|
7. Out of the
said amount, the last three items(15 to 17) viz., payment of Rs.21,250/- on each
occasion on 25.06.2014 and 28.07.2014 and Rs.3,000/- on 01.09.2014 are the
payments subsequent to the impugned common order of the trial Judge, dated
09.06.2014 undisputedly. If and when
such is the case, and among the items 2 to 14, all the 13 payments are clearly
reflected in para-10 of the common order of the learned Family Judge, now
impugning in the revisions. So far as
the first item is concerned, as mentioned in the impugned common order paras-8
and 9, the M.P.No.29 of 2011 order granting interim maintenance was dated
26.09.2011 to pay Rs.3,000/- since 27.12.2010.
Thus by the date of said order on 26.09.2011, the respondent-husband to
the Crl.M.P.No.29 of 2011 was to pay for the 9 months total of Rs.27,000/-
whereas, what he paid is shown in item No.1 supra on 28.12.2011 was only
Rs.10,000/- but not even half of the amount that comes to Rs.13,500/- pursuant to the compliance of the
order of the High Court in Crl.R.C.M.P.No.3428 of 2011, dated 07.11.2011 to pay
by 30.12.2011. From the above so far as
one year at the rate of Rs.1,500/- p.m. pursuant to the High Court order in
Crl.R.C.M.P.No.3428 of 2011 dated 07.11.2011 concerned, for one year from
27.12.2010 as per the direction of the High Court to pay arrears by 30.12.2011,
it is Rs.18,000/- undisputedly. From the calculation memo, the payments
commencing from Sl.No.2 of Rs.15,500/- was dated 12.04.2012 and noting by end
of December,2011. Therefrom, it was held by the learned trial Judge that the
order passed in Crl.R.C.M.P.No.3428 of 2011 supra was not complied with and
violated and that the subsequent payments will not revive the order in view of
the very order of the High Court speaks that in default, interim suspension
stands vacated. It is not even the case
of the revision petitioner-husband that he obtained any order for extension of
time to pay the arrears. It is the contention of the revision petitioner that if
at all there is any doubt the petitioner-wife of Crl.M.P.No.59 and 49 of 2014
should have been driven to approach the High Court for clarification instead of
saying the High Court order in Crl.R.C.M.P.No.
3428 of 2011 not complied with. The said contention is untenable and baseless
as the very order of the High Court is crystal clear an automatic vacation of
the stay for any non-compliance and it is for him if at all choose to seek for
extension of time and he neither paid within the time stipulated nor complied
as required pursuant to the order. Thus, he cannot take advantage in saying the
order benefit still available to him much less to contend non-executability of
the order in Crl.M.P.No.29 of 2011 dated 26.09.2011 to recover interim
maintenance at Rs.3,000/- p.m. When such is the case, when the applications are
filed by the wife, the order was properly passed by the Court below, there is
nothing to interfere for this Court while sitting in revisions. It is needless
to say the payments covered by serial numbers 15 to 17 can be given deduction
equally any of the further payments to pay the arrears for executability. Accordingly, point No.1 is answered.
Point No.2:
8. In the
result, both the revisions are dismissed.
Consequently, miscellaneous petitions, if any, pending in these two
revisions shall stand closed. The trial Court is directed to dispose of the
main O.P.No.1503 of 2010 by giving preference at least within four months from
the date of receipt of this order.
___________________________
Dr. B.SIVA SANKARA RAO J,
Date:02.12.2014.
vvr
