Meghalaya High Court
Smti. Shwetank Jindal vs Smti. Shivani Pde on 10 March, 2025
2025:MLHC:156
Serial No. 14
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. Petn. No.3 of 2024 Date of Order: 10.03.2025
Smti. Shwetank Jindal
S/o Shri. Rajkumar Jindal,
R/o A209, A, Sushant Lok I,
Near M.G. Road Metro Station, Chakarpur (74),
Gurugram, Haryana-122002
.....Petitioner
-VERSUS-
Smti. Shivani Pde
W/o Shri. Shwetank Jindal
R/o "Prasanti", House No.217 Upper Lachumiere,
Shillong-793001, East Khasi Hills District, Meghalaya
.....Respondent
Coram:
Hon’ble Mr. Justice B. Bhattacharjee, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Sen, Adv with
Mr. A. MominFor the Respondent(s) : Mr. M. Sharma, Adv
Ms. T. Buam, Adv(ORAL)
This Criminal petition is filed against the impugned order date
02.03.2023 and 20.10.2023 passed in C.R. Case No.57 (S) of 2022 under
Section-125 Cr.P.C by the Judicial Magistrate First Class, Shillong,
whereby the petitioner was directed to pay an amount of Rs.30,000/-
per month to the respondent as interim maintenance.
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The brief fact of the case is that the respondent has instituted C.R.
Case No.57 (S) of 2022 before the Court of the Judicial Magistrate First
Class, Shillong, against the petitioner under Section 125 Cr.P.C praying
for grant of maintenance for herself and her minor child. As the
petitioner herein defaulted in his appearance and did not file his
response within the time stipulated by the Trial Court, the ex-parte
order dated 02.03.2023 was passed against the petitioner directing
payment of an amount of Rs.30,000/- per month to the respondent as
interim maintenance. By the same order, the learned Trial Court issued a
bailable warrant of arrest against the petitioner. Thereafter, the
petitioner filed an application before the Trial Court praying for setting
aside of the ex-parte order dated 02.03.2023, which was rejected by the
Trial Court by order dated 20.10.2023. Hence, the present criminal
petition has been filed before this Court.
Mr. S. Sen, learned counsel for the petitioner has assailed the
impugned orders by contending that the mandate of law laid down by
the Apex Court in Rajnesh v. Neha, (2021) 2 SCC 324, reiterated in Aditi
Alias Mithi v. Jitesh Sharma (2023) SCC Online SC 1451 has not been
followed by the Trial Court in assessing the amount of maintenance
allowance, as the impugned orders do not refer to any affidavit of
Disclosure of Assets and Liabilities. He further contends that the learned
Trial Court has committed a grave error of law by issuing bailable
warrant of arrest against the petitioner without appreciating the fact
that the law does not permit Court to issue warrant for ensuring
appearance of a party in a maintenance matter. He submits that the only
provision which empowers Court to issue warrant in a maintenance
matter is under Section 125(3) Cr.P.C, and that also for the purpose of
recovery of amount due for payment of maintenance. He, thus, submits
that the impugned orders are not tenable in the eye of law and liable to
be set aside and quashed.
Mr. M. Sharma, learned counsel appearing for the respondent, on
the other hand, contends that the petitioner could not have approached
this Court without first exhausting the remedies available to him before
the Trial Court, more particularly, when the order dated 02.03.2023
stipulated that the amount of compensation was subject to alteration.
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He submits that the challenge to the legality of the order of issue of
bailable warrant also does not survive in view of the fact that the
bailable warrant has already been executed. He, therefore, submits that
the criminal petition is devoid of merit and requires no consideration by
this Court.
Submissions made by the learned counsel for the rival parties and
perusal of materials on record indicate that the learned Trial Court did
not take into consideration the affidavit of Disclosure of Assets and
Liabilities of the respondent while assessing the amount of interim
maintenance inasmuch as the impugned order dated 02.03.2023 has no
reference of the same. The manner in which maintenance payable is to
be assessed was considered by the Apex Court in Rajnesh (Supra) and
detailed guidelines were issued. While reiterating the said requirement,
the Apex Court in the case of Aditi Alias Mithi (Supra) made it clear that
no Court can pass an order of maintenance, either interim or final,
without there being any affidavit of Disclosure of Assets and Liabilities
on record. Although, in the present matter affidavit was filed by the
respondent, it appears that the learned Trial Court has not considered
the same while assessing the amount of maintenance. The filing of
affidavit of Disclosure of Assets and Liabilities is not an empty formality
as the purpose of such affidavit is to enable the Court to assess the just
and fair amount of maintenance allowance.
Furthermore, it appears that the learned Trial Court issued the
bailable warrant of arrest against the petitioner without considering the
fact that the proceedings under 125 Cr.P.C are primarily civil in nature,
though they can involve penal consequence for non-compliance of order
of payment of maintenance. Section 125(3) lays down that, if any person
fails without sufficient cause to comply with the order of payment of
maintenance, the Magistrate may issue a warrant for levying the amount
due in the manner laid down by law and may sentence any such person
to imprisonment if any amount remains unpaid after the execution of
the warrant. The first proviso to sub-section (3) of Section 125 lays down
that no warrant shall be issued for recovery of any amount due under
this Section unless application is made to the Court. It is, therefore, clear
that the aforesaid provision does not empower a Court to issue warrant
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of arrest for securing appearance of a party before the Court in a
maintenance case instituted under Section 125 Cr.P.C. The learned Trial
Court, therefore, could not have issued the bailable warrant against the
petitioner to secure his presence before the Court.
For what has been discussed above, this criminal petition
succeeds. Resultantly, the impugned order dated 02.03.2023 and
20.10.2023 passed in C.R. Case No. 57 (S) of 2022 are set aside. The
matter is remanded back to the Trial Court for fresh consideration in
accordance with law.
It is submitted by the learned counsel for the petitioner that the
petitioner has already filed his show cause and the affidavit of Disclosure
of Assets and Liabilities before the Trial Court. The learned Trial Court
shall take into consideration all the materials brought into record by the
rival parties while deciding the matter afresh including the question of
interim maintenance. It is further submitted by the learned counsel
appearing for the parties that the Court of Judicial Magistrate, which
passed the impugned orders, is on leave and not likely to resume
functioning immediately. In view of the submission, the matter can be
placed before any other Court of competent jurisdiction as deemed
appropriate by the learned Chief Judicial Magistrate, Shillong.
Judge
Meghalaya
10.03.2025
“Shrity”
Signature Not Verified
Digitally signed by SHRITY
CH MOMIN
Date: 2025.03.10 18:59:57 IST
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