MANU/MH/3866/2021

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition 692 of 2021
Decided On: 07.10.2021
Neha Vs. Rajnesh
Hon'ble Judges/Coram:
R.B. Deo, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.S. Sirpurkar
For Respondents/Defendant: Gopal Sawal
Case Category:
CRIMINAL MATTERS - MATTERS RELATING TO MAINTENANCE UNDER SECTION 125 OF
CR.P.C.
JUDGMENT
R.B. Deo, J.
1 . Heard Dr. Mrs. R.S. Sirpurkar, the learned counsel for petitioner and Mr. Gopal
Sawal, the learned counsel for respondent.
2 . Petitioner Mrs. "N" is the legally wedded wife of respondent Mr. "R". She has
preferred petition E-443/2013, under section 125 of Criminal Procedure Code, 1973
("Code" for short), seeking monthly maintenance of Rs. 35,000/- (Rupees Thirty Five
Thousand) and Rs. 15,000/- (Rupees Fifteen Thousand) for herself and petitioner 2,
who is the child born from the wedlock, respectively. Mrs. "N" preferred a separate
application seeking interim monthly maintenance.
3. Mrs. "N" is assailing as many as three orders of the learned Family Court, rendered
below applications Exhibit 329, Exhibit 337 and Exhibit 369.
4. Exhibit 329 is an application for striking out the defence of Mr. "R". Exhibit 337 is an
application seeking direction to Mr. "R" to deposit the arrears of interim monthly
maintenance before proceeding with the cross-examination and Exhibit 369 is an
application for amendment of the petition and to claim enhanced monthly maintenance
on the premise that with the passage of as many as seven years from the filing of the
application, the financial needs of Mrs. "N" and the child have augmented exponentially.
It is fairly stated by Dr. Mrs. R.S. Sirpurkar, the learned counsel appearing for Mrs. "N",
that no further or additional evidence will be adduced in support of the enhanced claim,
if the amendment application is allowed. In my considered view, it would not be
necessary to amend the petition if the enhanced claim is sought to be substantiated by
the evidence on record. The statutory scheme is that the learned Magistrate is obligated
to award just compensation, which may in a given situation, be more than the
compensation claimed. Such a view is taken by the learned Kolkata High Court in
Ganesh Bhakat .vs. Latika Bhakat and I respectfully agree. A similar issue, albeit in the
context of the provisions of the Land Acquisition Act, 1894 fell for my consideration in
Vidarbha Irrigation Development Corporation, Nagpur vs. Laxman Seetaram Neulkar and

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Anr., MANU/MH/1291/2020 : 2021(2) Mh.L.J. 198 and, relying on the decisions of the
Hon'ble Supreme Court in Ashok Kumar and another vs. State of Haryana,
MANU/SC/0225/2016 : 2016(6) Mh. L.J. (SC) 705 and Narendra and Others vs. State of
U.P. and Others, [MANU/SC/1205/2017 : 2018(2) Mh.L.J. (SC) 293], I held that the
duty of the Court determining the compensation is to determine just and fair
compensation, and to award compensation less than just and fair compensation on the
premise that the Court is powerless to grant compensation exceeding the amount
claimed, would be doing disservice to the statutory duty. Section 125 of the Code is a
social welfare legislation and the laudable object is to protect the aggrieved woman
from destitution. While section 127 of the Code does provide for enhancement of the
compensation in certain situations, it would be subversive of the legislative intent to
force the woman, who is seeking enhanced compensation due to change in
circumstances, to suffer an order and then institute separate proceedings under section
127 of the Code. In my considered view, the learned Magistrate shall be entitled to
award maintenance, more than the quantum claimed, if it is just to do so due to the
passage of time and the resultant change in circumstances. In this view of the matter,
no interference is necessary, subject to what is observed supra, in the order below
Exhibit 369.
5. The prayer in application Exhibit 337 seeks direction to Mr. "R" to deposit the arrears
of maintenance before proceeding with the cross-examination. The said prayer and the
order of rejection thereof need not detain me, since Dr. Mrs. R.S. Sirpurkar submitted
that Mrs. "N" is restricting the challenge to the refusal of the learned Family Court to
strike out the defence.
6 . The only order which survives for adjudication is the order below Exhibit 329
whereby the prayer for striking out the defence of Mr. "R" is rejected.
7 . Perusal of the application Exhibit 329 reveals that Mrs. "N" sought striking out the
defence alleging wilful disobedience of two separate orders. The first order of which
wilful disobedience is alleged is the order dated 24.8.2015 rendered by the learned
Family Court whereby Mr. "R" was directed to pay interim monthly maintenance of Rs.
15,000/- (Rupees Fifteen Thousand) to Mrs. "N" and interim monthly maintenance of
Rs. 5,000/- (Rupees Five Thousand) to the child for the period 1.9.2013 to 31.8.2015
and monthly interim maintenance of Rs. 10,000/- (Rupees Ten Thousand) from
1.9.2015 till further orders. The other order of which wilful disobedience is alleged is
the order dated 15.7.2017, rendered by the learned Family Court directing Mr. "R" to
pay to Mrs. "N" monthly sum of Rs. 25,000/- (Rupees Twenty Five Thousand) towards
monthly rental compensation.
8 . It is irrefutable that Mr. "R" has not complied with the order of payment of interim
maintenance. The order of payment of interim maintenance was challenged by Mr. "R"
in Criminal Writ Petition 875/2015, which this Court dismissed vide judgment dated
14.8.2018. Mr. "R" approached the Hon'ble Supreme Court in Criminal Appeal
730/2020, which came to be dismissed vide order dated 4.11.2020. While dismissing
the appeal, the Hon'ble Supreme Court directed Mr. "R" to clear the arrears of
maintenance, which then were Rs. 5,05,000/- (Rupees Five Lacs Five Thousand) till
27.1.2021. Mr. "R" approached the Hon'ble Supreme Court seeking extension of time to
clear the arrears. The Hon'ble Supreme Court, vide order dated 19.2.2021, directed Mr.
"R" to pay the first installment of Rs. 2,00,000/- (Rupees Two Lacs) within three weeks,
the second installment of Rs. 2,00,000/- (Rupees Two Lacs) within four weeks and the
third installment of the balance amount, within four weeks, thereafter. According to Mrs.
"N", the said direction of the Hon'ble Supreme Court was not complied with. On the

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premise that Mr. "R" committed contempt of the order of the Hon'ble Supreme Court,
Mrs. "N" has raised such ground in the application for striking out the defence. Dr. Mrs.
R.S. Sirpurkar submits that the application for striking out the defence is not pressed
qua the refusal of Mr. "R" to clear the arrears of interim monthly maintenance since Mrs.
"N" has initiated proceedings seeking intervention of the Hon'ble Supreme Court.
9. Mrs. "N" is restricting the challenge to the order impugned to the extent the defence
is not struck out despite the admitted non payment of the amount towards monthly
rental compensation. According to Mrs. "N", the arrears towards the payment of the
monthly rental compensation, as on 27.9.2021 were Rs. 10,00,000/- (Rupees Ten
Lacs). Mr. "R" has placed on record an affidavit dated 16.10.2021 admitting that as on
31.10.2021, he was in arrears of Rs. 9,00,000/- (Rupees Nine Lacs). It is, therefore, an
admitted position on record that Mr. "R" has not complied with the order of payment of
monthly rental compensation. The only issue which falls for consideration is whether
the violation of the judicial order is wilful and whether the conduct of Mr. "R" is such as
would impel this Court to direct striking out the defence, which undoubtedly is a drastic
step.
10. Conduct of Mr. "R"
10.1) The conduct of Mr. "R" is noted and telling observations are made by this
Court (Coram: Shri Manish Pitale, J.) while dismissing Criminal Writ Petition
875/2015, and upholding the order of the learned Family Court of payment of
interim monthly maintenance. It is tersely observed thus:
"Yet, such conduct of the petitioner does indicate that he is not sparing
any effort to deprive the respondents of enjoying relief granted by
competent courts. Although it is correct that material placed on record
before the Family Court and this court by the parties would be subject
matter of scrutiny and the final decision in the main application filed
under section 125 of the Cr.P.C. by the respondents, which is pending,
in order to decide the quantum of interim maintenance, the
respondents have certainly succeeded in demonstrating that the
petitioner has sufficient financial capacity to pay the amount of
maintenance directed to be paid by the Family Court in the impugned
order."
10.2) This Court further observed that from lifestyle of Mr. "R", it is evident
that he can certainly afford to pay the quantum of maintenance and that the
material on record clearly shows that Mr. "R" is suppressing relevant
information from the Court only to deprive Mrs. "N" and the child from interim
maintenance. This Court inter alia noted the visits of Mr. "R" to several foreign
destinations like United Kingdom, Kenya, Zimbabwe and Botswana.
10.3) As noted supra, the judgment rendered by this Court refusing to interfere
with the order of interim monthly maintenance is upheld by the Hon'ble
Supreme Court. The finding that Mr. "R" is leading a lavish lifestyle and is a
gentleman of means, is equally relevant to determine whether Mr. "R" can
possibly justify the non compliance with the direction to pay rental
compensation on the ground of financial inability. I have no hesitation in
holding that there is no justification for disobeying the judicial order, and the
disobedience is clearly wilful.
11. Whether the striking out the defence of Mr. "R" is necessary to uphold the majesty

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and sanctity of the due process of law:
11.1) Conscious of the serious consequences of striking out the defence, I
gave several opportunities to Mr. "R" to demonstrate bona fides and to
undertake to clear the arrears in a time bound manner.
11.2) It would be apposite to note the order dated 4.10.2021, which reads
thus:
"1. Prima facie, a case is made out for striking out the defence.
2 . The persistent and repeated violation of the judicial orders, is writ
large.
3 . A statement is made, which is not rebutted that the arrears of Rs.
10,00,000/- (Rupees Ten Lakhs) is due and payable towards the rental
compensation directed by the Family Court and affirmed by this Court.
This amount of Rs. 10,00,000/- (Rupees Ten Lakhs) is in addition to
the arrears towards payment of interim maintenance, which is
confirmed in favour of the wife by this Court and then by the Hon'ble
Supreme Court of India.
4. On the last date of hearing, I sought to verify the bona fides of the
husband and asked the learned counsel whether he is ready to deposit
at least 50% of the arrears immediately or within a particular time-
frame and then pay the rest in equal installments.
5. The response which is conveyed to the Court by the learned counsel,
mocks at the attempt of the Court to give the benefit of the doubt to
the husband and to give an opportunity to the husband to comply with
the judicial orders. The response is that nothing more than 25% of the
amount due shall be paid as the first installment and that too after
thirty days. The husband is not willing to give any timeline for the
payment of the balance arrears.
6 . I was inclined to pass an order of striking out the defence today.
However, since striking out the defence has serious consequences, I am
adjourning the matter till 6-10-2021 to give a final opportunity to the
husband to make amends and to give some semblance of assurance to
the Court that he is not taking the judicial process for granted or for a
ride.
7. Stand over to 6-10-2021."
11.3) Mr. "R" filed on record an undertaking on 6.10.2021 stating that an
amount of Rs. 50,000/- (Rupees Fifty Thousand) was transferred to the bank
account of Mrs. "N", and further amount of Rs. 1,50,000/- (Rupees One Lac
Fifty Thousand) shall be paid within thirty days and Mr. "R" shall try to clear the
balance amount of arrears of Rs. 7,50,000/- (Rupees Seven Lacs Fifty
Thousand) in installments over a period of eight months.
11.4) I noted in the order dated 6.10.2021, thus:
"3. A statement is made, which is not rebutted that the arrears of Rs.
10,00,000/- (Rupees Ten Lakhs) is due and payable towards the rental

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 compensation directed by the Family Court and affirmed by this Court.
This amount of Rs. 10,00,000/- (Rupees Ten Lakhs) is in addition to
the arrears towards payment of interim maintenance, which is
confirmed in favour of the wife by this Court and then by the Hon'ble
Supreme Court of India.
4. On the last date of hearing, I sought to verify the bona fides of the
husband and asked the learned counsel whether he is ready to deposit
at least 50% of the arrears immediately or within a particular time-
frame and then pay the rest in equal installments.
5. The response which is conveyed to the Court by the learned counsel,
mocks at the attempt of the Court to give the benefit of the doubt to
the husband and to give an opportunity to the husband to comply with
the judicial orders. The response is that nothing more than 25% of the
amount due shall be paid as the first installment and that too after
thirty days. The husband is not willing to give any timeline for the
payment of the balance arrears.
6 . It was inclined to pass an order of striking out the defence today.
However, since striking out the defence has serious consequences, I am
adjourning the matter till 06.10.2021 to give a final opportunity to the
husband to make amends and to give some semblance of assurance to
the Court that he is not taking the judicial process for granted or for a
ride.
7. Stand over to 6-10-2021."
1 2 . The outright refusal of Mr. "R" to even give an unconditional and genuine
undertaking to clear the arrears has left me with no option but to order striking out the
defence. The stubborn refusal to give even a commitment that the arrears shall be
positively cleared, mocks at the majesty of the judicial process.
1 3 . The learned counsel Mr. Gopal Sawal invites my attention to the decision of a
learned Single Judge in Vinod vs. Chhaya, MANU/MH/0481/2002 : I (2003) DMC 580
which purports to hold that the Family Court has no power to strike out the defence.
Similar view is taken by the Madhya Pradesh High Court in Vyankateshwar Dwivedi vs.
Ruchi Dwivedi & anr., MANU/MP/1083/2017 : II (2018) DMC 103 (MP). Mr. Gopal Sawal
relies on the decision of the Hon'ble Supreme Court in Ashapura Minechem Ltd. vs.
pacific Basin IHX (UK) Ltd., MANU/MH/0173/2013 : 2013(4) Mh. L.J. 103 which
articulates that an order for striking out cannot be passed as a matter of course and that
such power should be exercised where default is wilful and the conduct of the
defaulting party contemptuous.
14. Several High Courts have held that if maintenance is not paid, and the conduct of
the husband is contemptuous, the defence can be stuck out. Reference may be made to
Rani vs. Prakash Singh, Satish Kumar vs. Meena [MANU/DE/0771/2001 : 2001(60) DRJ
246], Mohindeer Verma vs. Sapna. In Rajnesh vs. Neha and Anr. MANU/SC/0833/2020 :
(2021) 2 SCC 324, the Hon'ble Supreme Court has noted the decisions by various High
Courts which recognizes the power of the Court to strike out the defence in view of
wilful disobedience of the order of payment of maintenance. The contrarian view is also
noted. The Hon'ble Supreme Court declares the position of law thus:
"125. The order or decree of maintenance may be enforced like a decree of a

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 civil court, through the provisions which are available for enforcing a money
decree, including civil detention, attachment of property, etc. as provided by
various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read
with Order 21.
126. Striking off the defence of the respondent is an order which ought to be
passed in the last resort, if the Courts find default to be wilful and
contumacious, particularly to a dependent unemployed wife, and minor
children. Contempt proceedings for wilful disobedience may be initiated before
the appropriate Court."
15. In my considered view, since default is wilful and contemptuous and the sufferers
are the wife and child, a case is made out for striking out the defence.
16. However, I propose to pass a conditional order of striking out the defence to give a
final opportunity to Mr. "R" to make amends. Mr. "R" shall clear 50% of the arrears of
the amount due and payable as rental compensation on or before 15.11.2021 and shall
clear the balance amount in four equal monthly installments. Needless to direct, Mr. "R"
shall punctually and regularly pay the monthly rental compensation. The defence shall
be struck out if Mr. "R" fails to pay the 50% of the arrears on or before 15.11.2021 or
commits default in payment of the further installment/s.
17. The petition is partly allowed in the following terms:
(i) The order dated 24.9.2021, below Exhibit 369, whereby the application
seeking permission to amend the prayer clause and seeking enhanced
maintenance, is not interfered with, in view of the settled position of law that
the quantum claimed by the applicant will not fetter the power of the Court to
grant just compensation which may be more than the compensation claimed.
(ii) The order dated 23.6.2021, rendered by the learned Judge, Family Court -
3, Nagpur, below Exhibit 329, rejecting the application for striking out the
defence is set aside and an conditional order striking out the defence is passed
which shall come into effect in the eventualities referred to in paragraph 16 of
the judgment.
(iii) The proceedings in E-Petition Number 443/2013 shall remain stayed for the
period of six weeks.
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