The High Court · 2025

THE HON'BLE SMT. JUSTICE RENUKA YARA CRIMINAL REVISION CASE No.374 OF 2O2S ORDER: This Criminal Revision Case is filed under Sections 438 and. 442 of the Bharatiya Nagarik Suraksha Sanhita 2023 (for short 'B.N.S.S') by the revision petitioner/respondent No' 1 aggrieved by the order passed by the learned II Additional Junior Civil Judge-cum X Addl. Judicia'l First Class Magistrate, Ranga Reddy District at Kukatpally in Crl-M'P'No'47 1 of 2024 in D.V.C.No.1 I ol 2O 16.

2. Heard Mr. Ch. Venu Kumar, learned counsel for the revision petitioner, Mr. B. Madhu Sudhan Rao, learned counsel for respondent No. 1 alld learned Assistant Public Prosecutor for respondent No.3 / State'

3. The parties are addressed as thev are addressed rn Cr1.M.P and D.V.C. The revision petitioner herein is referred as 'respondent No. 1 ' and respondent No. t herein is referred as 'petitioner'. 4 . The petitioner filed DVC case against her husband respondent No. 1/revision petitioner and mother-in-law vide J DVC No. tl of 2Ot6 seeking shared household and interim marntenance. The learned Magistrate vide order in Crl.M.p.No. 1249 of 2016 dated 26.1O.2O17 provided shared household to the petitioner and their child in the house of her husband or to pay monthly rent of Rs.15,O0O/ on or before Srh of every succeeding month. Further, vide orders tn Crl.M.p.No.483 of 2017, dated 26. 1O.2O12, the husband/ respondent No. I was directed to pay monthly to minor daughter Rs.15,OOO/- maintenance of on or before Srh of every 1S comlng for cross succeeding month. Currenfly, the DVC examination of pW2.

5. The respondent No.1 filed Crl.M.p.No.2 76g of2o19 to set aside the ex-parte order dated 1g.10.2019 passed against him and the sarne was ordered on 13.12.2019 subject to the condition that respondent No. I would pay arrears of marntenance of Rs. 7,3S,OOO/- as ordered in Crl.M.p.N os.7249 ot 2016 arrd 483 of 2077 Thereafter, the pet ilioner liled Crl.M.p.Nos.152O and l12l of 2O27 wherein the Court ordered payment of Rs.8,25,OOO/_ ana Rs.7,20,000/- vide order dated O3.O4.2024. However, said order was not complied bv respondent No.1. In the circumstances, the al _ ..--lvLqrrv\_o, Lrrc aoove petition under "/ 4 revision is filed under Order XV-A r/w Section i51 of CPC to direct respondent No.1 to pay arrears of Rs'14,95,000/-, failing which, the defence evidence be struck off' 6 . . Due to pending arrears, the counsel for petitioner informed that respondent No.1 cannot proceed with cross examination of PW2 by relying upon judgment of Kerala High court in case of Neethu v. Trijo Joseph 12o.22 SC'C OnLine Ker 328O|. A memo was filed on 16.04'2024 showing payment of only Rs.50,OO0/ - to the petitioner out of arrears of Rs.15,45,OOO/- payable. Therefore, there is objection to cross examination of PW2 by the petitioner' In said petition, respondent No' 1 opposed the relief sought 7. on the ground that the undisputed arrea-rs are paid up to date artd that in cross examination of PWl (petitioner), she admitted that she is not aware of residential orders passed by the Court but has been claiming rental amount for providing shared household. It is plead ed that the petitioner left residence at Hyderabad and living at Nellore for better employment and subsequently, residing at Guntur to pursue her employment as Senior Resident in Ramesh Multi Specialty Hospital, Guntur by 5 drawing sa,lary of Rs.2,OO,OOO/_ per month. The petitioner admitted that she purchased an apartment in Guntur and also a car besides owning a house at chirara. Therefore, the case oi respondent No.l is that the arrears claimed are imaginary. There is no order for payment of rentar amount and therefore, the right of cross examination of pW2 cannot be forfeited. The learned Magistrate allowed the petition by perusing the orders passed by the Court in Crl.M.p.Nos. 1249 of 2016 and 4g3 of 2Ol7 to pay the arrears lailing which respondent No. 1 is ordered to be committed to prison for a period of one month and the matter was posted on 25.03.2025 for compliance of the order. Aggrieved by the same, the present revision case is filed.

8. In grounds of revision, respondent No. 1/revision petitioner pleaded that in an application filed under Order XV_A of CpC, the Magistrate exceeded the scope of section and the prayer sought by ordering his arrest. Further, it is contended that as per Section 125(3) of Cr.p.C.or Section 144 of BNSS, warrant for recovery of arrears can be gralted only on an application ald no application was made for issuance of warralt for recovery of arrears of maintenance. Section 125(3) of Cr.p.C stipulates the procedure ald no warrant of recovery of unpaid arrears could .,, / .:, 6 be issued under Order XV-A of CPC. Further, the arrears have to be sought within one year from the date on which said arrears become due and the learned Magistrate has no power to issue warralt for recovery of arrears which are due for more than one year. It is also contended that the arrears of maintenance and residential order are two separate issues which cannot be clubbed and the trial court committed aII error by passing common order issuing warrant for recovery of arrears.

9. Further, respondent No.1 contended that a petition under Order XV-A of CPC is not maintainable whereas as the learned Magistrate has allowed the same without application of mind' Reference is made to Crl.M.P.No.3628 of 2024 filed by respondent No.1 under Section 25 of Protection of Women from Domestic Violence Act, 2OO5 to set aside the interim order dated

26.10.2017 in Crl.M.P.No.l249 of 2016 as the petitioner has been paying income tax of Rs.8O,OOO/- arrd that she is working as Freelalcer in addition to the stipend. Assets and liabilities submitted by the petitioner show that she is drawing salary of Rs.2,0O,O0O/- per month and owns a house and also a car' The \learned Maeistrate gave a finding that there is no material in \" \ 7 proof of petitioner,s lncome or assets and thereby, tailed to appreciate the testimony of petitioner as pWl, 10. In view of the admissions made by the petitioner, the Crl.M.P.No.3 626 of 2O24 was filed for modification of the orders dated 26.1O.2O17 ln Crl.M.p.No.483 of 2077 in changed clrcumstances. In addition, Crl.M.p. No.3627 of 2024 was filed to set aside the conditionar order passed in crr,M.p.N o.2T68 of 2O19, dated 13.l2.2}lg.It is pleaded the learned Magistrate has passed cryptic common order in all the Crl.M.ps without giving any reasoned order.

11. The respondent No. I pleaded that as per the order, for 5,OOO/- per month has to be paid only provide shared household. When there ioner that she is not aware of passing of enforcing the residence order at this shared household, Rs. I when there is failure to is admission by the petit the order of residence pornt of time does not arise. The petitioner shifted Hyderabad to Nellore handsome salary and malntenance and then to Guntur ald drawing therefore, she is not entitled to arry according to respondent No.l. In view of the 8 income of the petitioner, the respondent No.1 denied petitioner's entitlement to maintenance or providing shared househoid

12. Further, it is pleaded that when both spouses are earning, the maintenance of the child has to be shared. The fee receipts filed by PW2 show that the maintenance sought at Rs.15,0OO/- per month is at higher side. It is further contended by respondent No.1 that there is misleading of the Court by claiming that the child is sent to International School with expenditure of Rs.3,OO,OOO/- per annum. Lastly, it is pleaded that fraud vitiates the proceedings and that the petitioner has obtained orders of maintenance by misleading the Court about her income ald assets. As such, prayed that the order in Crl.M.P.No.471 of 2024 in DVC No.11 of 2016, dated

27.O2.2O25 be set aside.

13. During arguments, learned counsel for respondent No. I /revision petitioner argued that Maintenartce Case is a criminal proceeding, wherein, no petition cart be filed under Order XV-A of CPC which is applicable to civil proceedings in an eviction suit. It is further emphasized that a DVC case is criminai in nature, wherein, Criminal Miscellaneous Petitions \ \_ 9 are filed and not Interlocutory Applications. Further, it is argued that the learned Magistrate committed error in assessing the fact situation of the respondent No. I and petitioner who is having sufhcient income, as a qualified doctor, earning Rs.2,OO,00O/- per month. The petitioner owns a house and also a car as per her own admission made during her cross examination as PWl. Whereas, the learned Magistrate did not take any of the admissions of petitioner into consideration ald proceeded to allow the petition by ordering to pay arrears of maintenance and arrears of rent towards shared household. Further, it is argued that Section 12S (3) of the Code of the Criminal Procedure Code makes it clear that the arrears of maintenance to be sought within one year when such arrears become due. When an order is made for payment of such arrears atd there is failure on the part of the husband to pay maintenance, then, an order can be sought for his arrest for a period of one month in prison. This factor is not considered by the learned Magistrate while ordering arrears of maintenance amount of Rs.14,95,OO0/- much after the order of maintenance has been passed. On all the aforementioned counts, it is argued ?,, l0 that serious er:rors are committed and therefore, the impugned order is liable to be set aside. |4.LearnedcounselforrespondentNo.l/revisionpetitioner relied upon the judgment of the Honble Supreme Court of India in case of Amit Kapoor v. Ramesh Chander and anotherl, r,r,herein, it is held that while exercising jurisdiction under Section3gTand.Section4S2oftheCodeofCriminalProcedure, the records from an inferior court can be called for the purposes of satisfying itself as to the legatity and regularity of any proceedings or order made in any case.

15. Learned counsel for petitioner argued that the proceedings under DVC Act are civil in nature. In that Context, he referred to the judgment of the High Court of Judicature, Bangalore in the case between Sulochana and anothef v' Kuttappan and others2.

16. As per Section 125 (3) of Cr.P.C., arrears of rent have to be sought within a period of one year. Said Section and proviso are extracted and Produced below: ' zt.t t: 1e; scc +oo 'rool (:),cLt (crl.) I lo (s.8.) "If a-rry person so ordered fails without sufflcient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a wamart for levying the amount due in the manner provided for lelying hnes, and may sentence such person, for the whole or any part of each month's [a-llowaflce for the maintena,nce or the interim maintenance itnd expenses of proceeding, as the case may be,l [Substituted by Act 5O of 2OOl, Section 2 for "allowance" (w.e.fl 24-9 2OOl).1 remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until pa5rment if sooner made : Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to lely such arnount within a period of orre year from the date on which it became due: Provided further that if such person offers to marntain his wife on condition of her living with him, and she refuses to live with hirn, such Magistrate may consider any grounds of re fusal stated by her, ald may make an order under this section notwrthstanding such offer, if he is satisfied that there is just ground for so doing. Explanation. - If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him." Findings:

17. Coming to merits of the case, petitioner filed DVC No.11 of 2076 agatnst respondent No.l (revision petitioner) and his mother along with petitions seeking interim maintenance as well as residential order vide Crl.M.P.Nos. 1249 of 2016 and 483 of

2017. As per record, the Crl.M.P.No.1249 of 2016 was aflowed on 26.10.2017 directing the respondent No.1 to pay an amount of Rs.15,000/- towards monthly rent or to provide shared li. t2 household to petitioner and her child. Further, Crl'M'P'No 483 / of 2Ol7 was allowed on the same day directing the respondent No.l to pay an amount of Rs.15,OOO/- to his minor daughter toq,ards her maintenance from the date of filing of the petition' Consequently, the petitioner ought to have sought arrears of maintenance within one year i.e. by 25.1O-2OI8, whereas, petitioner did not seek arrears for almost three years until filing of Crl.M.P.Nos.152O and 1521 of 2021 . Said petitions were allovi,ed on 03.04.2024 directing the respondent No.1 to pay Rs.8,25,000 I and Rs.7,20,000/- respectively. The aforementioned sequence of events show that though orders for payment of maintenalce as well as providing shared household or monthly rent were made in the year 2017, Lhe petitioner did not take any steps for seeking arrears of amount up to the year 2O2l , whictr is more than four years of. passing of the order. Thus, the impugned order is in ciear violation of the statute r,r'hile providing relief of payment of arrears of majntenance as u,ell as rents in petitions filed four years after passing of the orders for providing maintenance a:rd shared household'

18. The learned Magistrate in Cr1.M.P'No.1249 of 2016 had ordered payment of rents of Rs.15,0OO/ per month as an IJ alternative in case shared household is not provided. In the instant case, petitioner had Iirst shifted to Nellore and then to Guntur for pursue of her profession as a practicing doctor. Also, petitioner as per her own evidence was not aware of the residential order passed by the learned Magistrate in Crl.M.P.No. 1249 of 2016, dated 26.10.2017. However, the learned Magistrate in spite of admissions made by the petitioner as PW 1 , did not consider whether the petitioner is in need of shared household or whether respondent No.1 ought to provide a residence wherever the petitioner was residing for the purpose of her profession. As a result, the learned Magistrate ordered payment of arrears of rent as well.

19. The learned Magistrate apparently failed to peruse the counter filed by respondent No. 1 opposing grant of arrears of maintenance and rents. The counter clearly contained the objections taken on the basis of admissions made by petitioner about her income ald ownership of a flat. The learned Magistrate passed an order without referring to the petitioner,s admissions. Said order is extracted ald produced below: "7. Heard both sides. The counsel for the respondent No. 1 submitted that the petitioner is not aware of the residence orders, dated 26.IO.2OlZ ald now the l+ t4 petitioner hled the present petition claiming the arrears of the anount and the petitioner is a doctor and earning more thErn Rs.2,OO,OO0/- which is sufficient income arrd claiming maintenance in the name of the child ald the respondent No. 1 is earning minimum sa1ar5z. In support of his contention, the respondent No.l failed to hle anv material bcfore this court."

20. The above order clearly reveals that the learned Magistrate did not consider the admissions made by the petitioner as P.W. 1 with respect to her income, owner ship of a flat, house ald a car. The learned Magistrate held that respondent No. 1 failed to file any material before it to prove the income and property owned by the petitioner by clearly disregarding the legal precedents that the admitted facts need not be proved.

21. Lastly, the learned Magistrate failed to consider the maintainabilitv of the petition under Order XV-A of CPC in a DVC case filed for seeking maintenance and shared household In this context, it is pertinent to note that as per judgment of this Court in the case of M.B.Chander v. Balakrishna Rao Charitable Truste, to invoke Order XV-A of CPC, there must have been a suit filed for recovery of possession of a property for eviction, there must be prayer for recovery of rent or compensation for use and occupation arld there must be 2017) I At-l) (r8 15 pleading that no arrears or low arrears be paid to the landlord which needs examination by the Courts about admitted arrears of rent. In the instant case, the Crl.M.P.No.47l of 2024 is l:].ed in a DVC case as opposed to a suit for eviction. Further, there is no landlord, tenant relationship or there is a case of admitted rents between respondent No. 1/revision petitioner and petitioner who are husband ald wife involved in a family dispute. The.Order XV-A of CPC is applicable to cases involving landlord, tenant relationship but not in family disputes between husband and wife.

22. The Delhi High Court in case of Vasu Bajaj v. Rakesh Bajaja held that the maintenance does not have its roots in any contractual obligation and is thereby not a "civil debt", but once it is determined and concretized by any Order or a Decree, it becomes a def,rnite amount payable to the wife, children and parents, thus acquires the character of a "debt", which can be recovered by way of a civil suit. As held by the Hon'be Supreme Court in case of Poongodi v Thangavels, in cases where maintenance cannot be recovered under Section 125(3) of ' 2021 sCC Online Dcl 5124 '(20.!rro scc 618 I i6 Cr.P.C., the ordinary remedy to recover the amount of maintenance is by a civil action, i.e. by filing a civil suit

23. In the instant case too, when petitioner failed to recover arrears of maintenance under Section 125(3) of Cr.p.C r.r,ithin one year of passing of the order by the learned Magistrate in Crl.M.P.Nos.1249 of 2016 and 483 of 2OI7. both dated

26.10.2017, she has an option of filing a suit for recovery of amount under impugned order and decree, but a petition under Order XV-A of CPC '"vithin a DVC case is not maintainable.

24. To sum up, the learned Magistrate failed to peruse the pleadings of the counter, failed to appreciate the admissions made by petitioner as PWl in her cross examination and a_lso failed to apply the lar,r,. In view of the foregoing discussion, the impugned order rs liable to be set aside

25. In the result, this Criminal Revision Case is allowed by setting aside the impugned order in Crl.M.P.No.47l of 2024 in DVC No. 1 1 of 2O 16, dated 27.O2.2O25 on the file of the learned II Additional Junior Civil Judge cum-X Addl. Judicial First Class Magistrate. Ranga Reddy District at Kukatpally. t7 Miscellaneous applications pending, if aly, shall stand clo sed To, Sd/. N. CHANDRA SEKHAR RAO EPUTY REGISTRAR //TRUE COPY// SECTION OFFICER Magistrate, Rangareddy District ;t Kukatoallv.

1. The ll Additional Junior civil Judge-cum-X Additional Judicial First class 2. Two ccs to the Pubric prosecutor, High cour[ for the state of rerangana at 3. One CC to Sri CH.Venu Kumar, Advocate IOpUCt 4. One CC to Sri B. Madhu Sudhan Rao, Advbcate tbpucl 5. Two CD Copies Hyderabad [OUT] NVB/gh HIGH COURT DATE D:0 410812025 4ISEH-t r(' Ro a o o GUII1 2ffi o€sp lil C ilEo (\ (-. ^ ,ti ORDER CRLRC.No.374 o12025 ALLOWING THE CRIMINAL REVISION CASE I \q (