AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.540 OF 2007 Mr. Prakash Gurbax Navani ... Applicant Vs. Mrs. Neha Navani, @ Jyoti Motiram Makhija & Anr. ... Respondents Ms. S.S. Gokhale for the applicant. Mr. H.S. Anand for respondent 1. CORAM : SMT. RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ. DATED : 6TH MAY, 2008. P.C.:- 1. The applicant had challenged order dated 3/2/2007 passed by the Family Court in Criminal Misc. Application No.103 of 2003 in Petition E/54 of 2002. Respondent 1 is the wife of the applicant. The applicant was married to one Ms. Juhi on 15/5/1993. According to the applicant, he got separated from Juhi in October, 1994. In October, 1997, he got introduced to respondent 1. On 20/12/1997, he initiated divorce proceeding as regards his marriage with Juhi. It is the case of the applicant that respondent 1 was pressurizing him to marry her. Because of the pressure exerted by her, on 25/12/1997 he got engaged AJN 2 to her. The case of respondent 1 is, however, that on 25/12/1997 she got married to him. On 1/11/1998, respondent 1 gave birth to a baby boy – Dhiraj. The applicant is denying the paternity of the said child. 2. On 31/1/2002, respondent 1 filed proceedings for maintenance for her son - Dhiraj under section 125 of the Criminal Procedure Code (for short, “the Code”) being Petition No.E-54 of 2002. It appears that on 14/3/2002, the applicant's marriage with Juhi was dissolved by a decree of divorce. It is the applicant's case that on 12/8/2002, with an intention to put an end to the disputes, he agreed to pay Rs.1,500/- per month to Dhiraj though he is not his son. Consent terms were filed in the Family Court at Bandra. Under the consent terms, the applicant agreed to pay Rs.1,500/- per month to Dhiraj. The applicant also agreed to pay Rs.12,000/- as arrears of maintenance from the period January, 2002 to August, 2002 in four equal instalments. On 3/10/2002, respondent 1 filed criminal proceedings under section 495 of the Code read with section 34 of the Indian Penal Code (for short, “the IPC”) against the applicant in the Metropolitan Magistrate Court at Kurla. In 2003, respondent 1 filed petition bearing No.A/188/2003 for declaration that her marriage with the applicant is null and void. She prayed for maintenance of Rs.15,000/- per month for herself and Rs.4,500/- per month for her son. AJN 3 3. According to the applicant, in view of the above conduct of respondent 1, he filed Writ Petition No.438 of 2003 in this court for setting aside the consent terms dated 12/8/2002 filed in Petition No.E- 54 of 2002. The said petition was disposed of by the Division Bench of this court on 24/6/2003. The Division Bench observed that the consent order was an order in proceeding under section 125 of the Code. The Division Bench further observed that under section 127(1) of the Code, there is a provision for approaching the concerned court in the event of change of circumstances and, therefore, approaching the concerned court under section 127(1) of the Code is a course which is open to the applicant. After so observing, the petition was rejected. 4. On 23/7/2003, the applicant, in pursuance of the order of this court mentioned hereinabove, filed Misc. Application No.103 of 2003 in the Family Court at Bandra. The Family Court dismissed the application and directed the applicant to pay costs of Rs.3,000/- to respondent 1. Being aggrieved by this corder, the applicant has approached this court. 5. We have heard, at some length, Ms. Gokhale, learned counsel appearing for the applicant. She submitted that after having entered into the consent terms with the applicant, respondent 1 could not have AJN 4 filed a criminal proceeding against the applicant. She submitted that respondent 1 committed breach of the consent terms and filed petition for declaration that the marriage between her and the applicant is null and void. In that petition, respondent 1 prayed for maintenance for herself at the rate of Rs.15,000/- per month and Rs.4,500/- for her son. Respondent 1 has, therefore, committed breach of the consent order. The consent order is, therefore, liable to be set aside. 6. Mr. Anand, learned counsel appearing for respondent 1, on the other hand, submitted that the applicant is in arrears of maintenance and, hence, no indulgence be shown to him. He submitted that the applicant had only prayed for maintenance for her son. Meager amount of Rs.1,500/- is granted to him. That order does not merit any interference from this court. He also drew our attention to order dated 17/3/2008 passed by the learned Single Judge of this court in Writ Petition No.16 of 2008. He submitted that the learned Single Judge has set aside the order passed by the Family Court at Bandra on Interim Application No.38 of 2003 filed by respondent 1 and directed the Family Court to re-hear the matter. He submitted that in the circumstances, in view of this order, the matter should be heard afresh. However, this court should not interfere with the consent order under which Rs.1,500/- are directed to be paid to Dhiraj. AJN 5 7. At the outset, we must note that serious allegations are levelled by the applicant and respondent 1 against each other. But, we are of the opinion that for the disposal of this criminal revision application, it is not necessary to express any opinion on the rival contentions particularly because the petition filed by respondent 1 for seeking declaration that the marriage is null and void is pending in the trial court. Therefore, it is improper to express any opinion on the merits of the case. 8. It is well settled that so far as the orders regarding maintenance are concerned, they are always flexible. They are never in the nature of final orders. They can be varied according to the change in the circumstances. It is precisely for this reason, the Division Bench has directed the applicant to approach the Family Court for appropriate order under section 127(1) of the Code. In the circumstances of the case, we are not inclined to set aside the consent order. 9. In the earlier proceeding under section 125 of the Code, the respondents had only prayed for maintenance of her son – Dhiraj. Subsequently, in the petition filed by her for a declaration that the marriage between the applicant and respondent 1 should be declared AJN 6 as null and void, she made an application under section 24 of the Hindu Marriage Act. In that application, the Family Court had directed the applicant to pay interim maintenance of Rs.5,000/- per month to respondent 1 and Rs.3,000/- per month to son – Dhiraj from the date of application. The Family Court has also observed that the said maintenance to the child is including the maintenance granted in “E” petition by the court i.e. petition under section 125 of the Code. 10. While granting maintenance under section 24 of the Hindu Marriage Act, if there is any order passed under section 125 of the Code granting maintenance, the maintenance so granted will have to be taken into consideration. In such a situation, the court may have to do some adjustment. In this connection, we may usefully refer to the judgments of the Supreme Court in Sanjay Chopra v. Shyama Chopra, I (2001) DMC 510 (SC) and in Sudeep Chaudhary v. Radha Chaudhary, 1999 AIR (SC) -0- 536. 11. It appears that the order passed by the Family Court dated 20/11/2007 was impugned by the applicant by filing Writ Petition No.16 of 2008 in this court. After hearing learned counsel for the parties, this court by order dated 17/3/2008 set aside the order of the Family Court dated 20/11/2007 and directed that the Interim Application No.38 of AJN 7 2003 be heard on merits and in accordance with law. This development is, of course, subsequent to the filing of the present criminal revision application. In view of the order passed by this court in Writ Petition No.16 of 2008, in our opinion, this petition will have to be, in fact, disposed of in terms of the said order. Hence, we pass the following order. 12. The Family Court shall dispose of Interim Application No.38 of 2003 as directed by this court in its order dated 17/3/2008. After considering the materials brought on record by the parties before the court and after hearing the parties, the Family Court shall decide as to what maintenance should be awarded to respondent 1 and son – Dhiraj. The Family Court shall do so independently and in accordance with law. So far as the earlier consent order awarding maintenance at Rs.1,500/- is concerned, we are not inclined to disturb the same. That order has already taken effect and we are informed by learned counsel for the applicant that it has been complied with though learned counsel for respondent 1 states that it has not been fully complied with. We need not go into this aspect. If it is not complied with, respondent 1 will have her remedy. We do not want to express any opinion on this aspect. The Family Court shall decide what future maintenance should be awarded for respondent 1 and son - Dhiraj. If the Family Court is of the AJN 8 opinion that the order passed in the consent terms should continue, then in the light of the judgments to which we have made reference hereinabove, it shall pass appropriate order making necessary adjustments. The Family Court will be free to decide the quantum of maintenance for the son – Dhiraj afresh. All contentions of both sides are kept open. The criminal revision application is disposed of. [SMT. RANJANA DESAI, J.] [SMT. R.P. SONDURBALDOTA, J.]