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2005 DIGILAW 799 (ALL)

STATE OF U. P. v. RAM SANEHI AND ORS.

2005-04-28

M.C.JAIN, M.CHAUDHARY

body2005
M. C. JAM, J. ( 1 ) THE accused-respondents, Ram Sanehi and Ram Vilas were tried in S. T. No. 121 of 1980 before the Sessions Judge Mainpuri for the offence punishable under Section 304 I. P. C. read with Section 34 I. P. C. By judgement dated 28. 9. 1981, he acquitted them and the State has preferred this appeal there against. During the pendency of the appeal, Ram Vilas died and the appeal abated respecting him under order dated 16. 10. 2003. The appeal, therefore, survives only in respect of other accused-respondent Ram Sanehi. ( 2 ) THE death of one Asgar was caused in this incident which took place on 17. 3. 1979 at about 3. 00 P. M. in Nagla Kothi, hamlet of village Habans, Police Station Alau District Mainpuri and the F. I. R was lodged on 18. 3. 1979 at 12. 30 A. M. at Police Station Kotwali Mainpuri by Kamaruddin PW I who claimed himself to be an eyewitness. The case as unfolded at the trial was like this. The deceased Asgar was co-sharer with the accused Ram Sanehi growing sugarcane crop in one plot of this accused Ram Sanehi. Asgar owned a sugar-cane crushing Koihu which he had installed in his village Nagla Kothi and he used to crush sugarcane of other persons also against payment. On the fateful day at about 3. 00 P. M. , Asgar was there at his Koihu. His cousin Kamaruddin PW 1 was picking green fodder in his adjacent plot. Both the accused Ram Sanehi and Ram Vilas came there. Ram Sanehi was armed with Hansiya i. e. sickle and questioned Asgar as to why he had not yet crushed his sugarcane. Asgar replied that his bullock was ill for this reason could not crush his sugarcane. Altercation took place between the two with trading of abuses. Then Ram Sanehi asked his companion Ram Vilas to catch hold of Asgar. Ram Vilas caught hold of Asgar and Ram Sanehi struck Hansiya blows on him causing injuries to him in his abdomen and the fingers/palm of his right hand. On being assaulted Asgar raised alarm attracting his cousin Kamaruddin PW 1, Nakse, Njibibux PW 2 and a few others. They challenged the accused and tried to apprehend them, but they made their escape good by running from the spot. On being assaulted Asgar raised alarm attracting his cousin Kamaruddin PW 1, Nakse, Njibibux PW 2 and a few others. They challenged the accused and tried to apprehend them, but they made their escape good by running from the spot. Kamaruddin PW 1 then took the injured Asgar from the place of occurrence to Kusmara and therefrom to Mainpuri city where he got him admitted in the District Hospital. ( 3 ) DR. S. C. Gupta, PW 7 examined the injuries of Asgar on 17. 3. 1979 at 10. 25 P. M. Following injuries were found on his person:1. Incised stitched wound 6 cm x 0. 25 cm on the left outer aspect of abdomen, 16 cm left and sightly above the umbilicus: Direction horizontal (under observation ). 2. Incised wound 1 cm x 0. 2 cm x skin deep on the palmer surface of little finger of right hand at its root. 3. Incised wound 15 cm x 0 25 cm x muscle deep on the palmer surface of ring finger over middle phalanx of right hand. 4. Incised wound 1. 5 cm x 0. 25 cm x muscle deep on the palmer surface of middle phalanx of middle finger of right hand. 5. Incised wound 0. 5 cm x 0. 25 cm x skin deep on the right palm, 2. 5 cm below the root-of little finger. 6. Abrasion 2. 5 cm x 1. cm on the back of left 10 cm above ankle joint. All the injuries except no. I were simple. Injury no. I was kept under observation of which Xray was advised. All injuries except injury no. 6 had been caused by a sharp edged weapon. Injury no. 6 had been caused by friction. ( 4 ) KAMARUDDIN. PW 1 prepared a written F. I. R. and he lodged the same at Police Station Kotwali Mainpuri, District. Mainpuri. Connected papers were transmitted to the concerned Police Station. Initially, the case under Section 307 I. P. C. was registered. Investigation was taken up by R. K. Misra PW 4. He went to District Hospital, Mainpuri and interrogated the injured, complainant and other witnesses. Asgar remained in the District Hospital Mainpuri for about 1 4 days and he ultimately succumbed to his injuries at 1. 00 A. M on 21. 3. 1979. Investigation was taken up by R. K. Misra PW 4. He went to District Hospital, Mainpuri and interrogated the injured, complainant and other witnesses. Asgar remained in the District Hospital Mainpuri for about 1 4 days and he ultimately succumbed to his injuries at 1. 00 A. M on 21. 3. 1979. A memo was sent to Police Station Kotwali for preparation of inquest report of the deceased Asgar. S. I. R. K; Gupta PW 6 was deputed for the purpose, After drawing inquest report of the deceased arid preparing other necessary papers, the dead body was sealed and sent for postmortem which was conducted by Dr. A. N. Saxena PW 3 on 21. 3. 1979 at bout 3. 45 P. M. The case was converted under Section 304 I. P. C. ( 5 ) AS per the postmortem report, the deceased was aged about 60 years and about 3/4 day had passed since he died. The following ante-mortem injuries were found on his person. 1. Stitched wound 6 cm. long on anterior abdomen wall at 2 Oclock position, 16 cm away from umbilicus on left side containing 8 stitches. 2. Traumatic incised wound 1cm x 0. 2 cm x muscle deep on base of little finger of right hand at root on palmer, side. 3. Traumatic incized wound 1 cm x 0. 2 cm x muscle deep on middle phalanx of light hand ring finger palm side. 4. Abrasion 2 cm x 7. 5 cm. on back of left leg lower third. 5. Incised wound 7 cm. x 0. 2 cm skin deep on right palm. 2. 5 cm. below root of little finger. 6. Incise wound 1/2 cm. x 0. 2 skin deep on middle finger middle phalanx of right hand palmer side. The cause of death was shock and haemorrhage due to ante- mortem injuries. The accused were booked to face trial at the conclusion of investigation. The defence was of denial. ( 6 ) AT the trial, the prosecution examined Kamaruddin PW I and Nabibux PW 2. as eyewitnesses apart from adducing medical evidence and that related to the investigation of the case. The evidence did not find favour with the trial Judge who recorded acquittal which is assailed in this appeal. ( 7 ) WE have heard Ms. ( 6 ) AT the trial, the prosecution examined Kamaruddin PW I and Nabibux PW 2. as eyewitnesses apart from adducing medical evidence and that related to the investigation of the case. The evidence did not find favour with the trial Judge who recorded acquittal which is assailed in this appeal. ( 7 ) WE have heard Ms. Usha Kiran, learned A. G. A. for the applicant State and Sri Rakesh Pandey, learned counsel for the surviving accused respondent Ram Sanehi. The record of the case is before us which we have perused. The submission from the side of the State is that the trial judge wrongly discarded the testimony of the eyewitnesses which was in conformity with the medical evidence without any justification and the acquittal recorded by him is bad. The counsel for the accused respondent has tried to support the finding of acquittal recorded by the trial judge. ( 8 ) TO begin with, it deserves mention that motive may not be significant in a case of direct ocular account. But when the prosecution comes with a specific motive, it is desirable to test it on the anvil of reliability, more so when it is intimately associated with the start of the incident. In the case at hand the motive assigned by the prosecution against the accused for the commission of this crime was that he (Ram Sanehi) had asked Asgar as to why he had not crushed his sugarcane at his Koihu. Asgar had allegedly replied that he could not do so as his bullock was lying ill. Kamaruddin PW I and Nabibux PW 2 both further stated that, thereupon an altercation had taken placebetween the two with trading of abuses. Then Ram Vilas deceased accused respondent had allegedly caught hold of Asgar on the asking of Ram Sanehi and the latter had inflicted Hansiya blows upon him (Asgar), Kamarudin further deposed before the court below that the deceased Asgar had grown sugarcane crop that year as co-sharer with Ram Sanehi in a plot belonging to the latter. Ram Sanehi denied the allegation of the prosecution that the deceased Asgar had raised sugarcane crop as co- sharer with him in a plot belonging to him that Asgar owned a cane crushing Koihu in Nagla Kothi and that he used to crush the sugar cane crop of other persons at that Koihu on payment. Anyway. Ram Sanehi denied the allegation of the prosecution that the deceased Asgar had raised sugarcane crop as co- sharer with him in a plot belonging to him that Asgar owned a cane crushing Koihu in Nagla Kothi and that he used to crush the sugar cane crop of other persons at that Koihu on payment. Anyway. Kamaruddin PW 1 stated in his cross examination that the deceased Asgar had already crushed at his Koihu of the joint sugarcane crop {of Asgar and Ram Sanehi) and that sale proceeds of Gur which was prepared from the crop had been deposited with the father of Ram Sanehi accused. He also stated that only 1/4 of the crop of that plot remained to be crushed. He also stated that 1/4 of sugarcane crop was still standing and had not been cut. This being so, there could hardly be any question of Ram Sanehis asking Asgar as to why he had not crushed his sugarcane crop at his Koihu. To come to the point, the genesis of the incident entwined with motive did not answer the test of reliability and appeared to be concocted. ( 9 ) SECONDLY, the presence of both the eyewitnesses Kamarudin PW 1 and Nabibux PW 2 was rightly held to be doubtful in our opinion. Kamaruddin PW 1 stated that he was picking grass inside his Arhar plot situated at a distance of 8-10 Steps from Asgars Koihu. In the FIR he stated that he was picking green grass in his own plot He then contradicted himself by saying that he was picking grass at the time of incident in the field of Asgar deceased situated at a distance of 8 or 10 steps towards east-south from Asgars Koihu whereas his own plot was situated towards the north of Asgars Koihu after the bamba (canal) It came in evidence that village Ilabans is situated at a distance of about two furlongs from Asgars Koihu. Nabibux PW 2 belonged to village Habans. Nabibux PW 2 stated, that he had no house or field near Asgars Koihu. In order to explain his presence at Asgars koihu. Nubibux stated that his own Koihu had gone out of order and he had gone to find put if the Koihu of Asgar was free and he could crush his own sugarcane crop at that Koihu. Nabibux PW 2 stated, that he had no house or field near Asgars Koihu. In order to explain his presence at Asgars koihu. Nubibux stated that his own Koihu had gone out of order and he had gone to find put if the Koihu of Asgar was free and he could crush his own sugarcane crop at that Koihu. He made varied statement that neither he had any field of his own nor any Koihu and that he had grown sugarcane crop in the plot of one Balakram Brahrnin belonging to his village on Batai basis and he was crushing that sugarcane crop at the Koihu of Balakram. It was Balakrams Koihu which had gone out of order at the time of the incident. He admitted that there were several Koihus in his own village Habans belonging to Thakurs and others. Under the circumstances, Nabibux could crush the sugarcane at one of these Kolhus in his own village Habans instead of going to the Kolhu of Asgar to find out if he could crush sugarcane at his Koihu. Needless to say, the crushing of sugarcane at the Koihu of Asgar was cumbersome as it required the carrying of Sugarcane to that spot. In natural course of things, one would avoid such extra and additional inconvenience and would prefer to crush the sugar-cane at any of nearby Koihu. There could be no particular reason for his haying gone at Asgars Koihu at that point of time. ( 10 ) IT is, however to be pointed but that both the eyewitnesses admitted before the lower court that they had not got the inspection of the place of the occurrence made by the Daroga. Kamaruddin PW 1 further stated that he had not shown to the Daroga the plot in which he was picking the green grass at the time of the incident. The scrutiny of the evidence of the two eyewitnesses indicated as if they did not know the accused Ram Vilas at any time before this incident. Then, his naming in the F. I. R. was shrouded in dubious circumstances. It also came down from the cross-examination of Kamaruddin PW 1 that he had reached at the spot 10-12 minutes after the incident to find Asgar lying, injured on the ground with his intestine coming out of his abdomen. Then, his naming in the F. I. R. was shrouded in dubious circumstances. It also came down from the cross-examination of Kamaruddin PW 1 that he had reached at the spot 10-12 minutes after the incident to find Asgar lying, injured on the ground with his intestine coming out of his abdomen. He also stated that Nabibux PW 2, Nekse, Shahabad and Kamaluddin had reached the spot about 15 minutes after his reaching there. His this admission indicated that neither he himself nor Nabibux PW2 had actually seen the incident. ( 11 ) KAMARUDDIN PW 1 stated that he first took the injured Asgar to his house and after about 1/2 hour he took him to Kusmara in bullockcart and thereafter to Mainpuri. Under the circumstances, Kamaruddin PW 1 would have admitted the injured in the District Hospital Mainpuri, but the truth of the matter was that he was admitted in the Hospital by Jumman, brother of the victim. He stated that he had got the wound stitched in Government Dispensary Kusmara before proceeding to Mainpuri. Dr. S. C. Gupta PW 7 examined the victim in the District Hospital Mainpuri on 17. 3. 1979 at 10. 25 P. M. and found the abdomen wound in stitched form, It appeared that wound of Asgar had been stitched by some private doctor, and not by the doctor of Government Dispensary as the doctor of the Government Dispensary would have examined all the injuries of Asgar preparing an injury report and would have thereafter referred him to District Hospital, Main pu ri. ( 12 ) ANOTHER factor is that his statement creates doubt about the genuineness of the F. I. R. also. He stated that several villagers including Ram Vilas Pandey were accompanying him when he was taking the injured Asgar from his village to Kusmara. Ram Vilas Pandey had obtained thumb impression of Asgar, saying that F. I. R. in respect of the incident would be lodged at Kusmara Police Station so that Asgars medical treatment could be held in Government Dispensary at Kusmara. He, too, had put signature on the said paper by way of a witness. He further stated that Ram Vilas Pandey had recorded the F. I. R. at that time and he could not deliver the same at the Police Station Kusmara outpost. He, too, had put signature on the said paper by way of a witness. He further stated that Ram Vilas Pandey had recorded the F. I. R. at that time and he could not deliver the same at the Police Station Kusmara outpost. That F. I. R. relating to the incident had been suppressed and not produced before the court at all. So, the genuineness of the present F. I. R. relied upon by the prosecution is rendered doubtful, casting cloud on the entire prosecution case. ( 13 ) THE site-plan of the place of occurrence allegedly prepared by the Investigating Officer was not produced before the trial court at all. ( 14 ) SO, looking to all above aspects and circumstances, the trial judge was perfectly justified in drawing conclusion that no reliance could be placed on the testimony of the two witnesses Kamarudin PW 1 and Nabibux PW 2. ( 15 ) THE trial judge, in our opinion also rightly disbelieved the so-called statement of Asgar allegedly recorded by the Investigating Officer R. K. Mishra PW 4 on 19. 3. 1979 under Section 161 Cr. P. C. which way sought to be relied upon as his dying declaration. As per the testimony of the Investigating Officer R. K. Misra. PW 4. he had interrogated; Asgar deceased in the District Hospital Mainpuri on 19. 3. 1979 and he had recorded his statement there. According to him he forwarded the parcha of his case diary dated 19. 3. 1979 to the C. O. s office on 20. 3. 1979. However, the perusal of the Case Diary dated 19. 3. 1979 showed that no date was mentioned beneath the endorsement of C. O. on the margin by the side of the statement of Asgar. The C. O. had thereafter made the endorsement to the effect that he had examined the statement of Kamaruddin and Nekse on 30. 4. 1981 and of Nabibux on 1. 5. 1981. According to the Investigating Officer R. K. Misra PW 4. he had got mentioned in the G. D. of Police Station Alau the fact that he had examined the prosecution witnesses including Asgar deceased on 19. 3. 1979 but the General Diary of Police Station Alau had not been produced before the court. In case he had interrogated Kamaruddin PW1 and others including the victim Asgar on 19. 3. he had got mentioned in the G. D. of Police Station Alau the fact that he had examined the prosecution witnesses including Asgar deceased on 19. 3. 1979 but the General Diary of Police Station Alau had not been produced before the court. In case he had interrogated Kamaruddin PW1 and others including the victim Asgar on 19. 3. 1979, then he would have inspected the site also on that very day in the presence of the complainant and the eyewitnesses. But he inspected the site as late as on 1. 5. 1979 allegedly in the presence of the complainant Kamaruddin PW. 1. As mentioned earlier Kamaruddin clearly stated that he never got the scene of occurrence inspected by the Daroga. We should record at the risk of repetition that the site plan, was not at all produced before the court below on the pretext that it was missing and it could not be traced in the office of the C. O. Seemingly, the statements of deceased Asgar. Kamaruddin etc. had been recorded by the Investigating Officer in accordance with the F. I. R. with slight variations. According to the Investigating Officer, he interrogated Asgar in the District Hospital with the permission of the doctor and also in the presence of that doctor. He could not tell name of that doctor nor could he file-any written permission of the doctor for the interrogation of Asgar. According to him he had put only one question to Asgar viz. , as to what incident happened with him and Asgar then made the entire statement. The copy of his statement was said to be Ext. Kha 4. The trial judge rightly observed that it was improbable and unbelievable that to answer a single question put to him by the Daroga, Asgar would have made the lengthy statement imputed to him. The perusal of language and wordings of the statement indicated that Investigating Officer had himself recorded this statement with a view to infuse strength in the prosecution case in his own way. ( 16 ) THE gist of the above discussion is that the testimony of the two eyewitnesses was not reliable. No reliance could be placed on the alleged dying declaration either of the deceased. The view taken by the trial judge in acquitting the accused is a reasonable one based on judicious scrutiny of the evidence and attending circumstances. ( 16 ) THE gist of the above discussion is that the testimony of the two eyewitnesses was not reliable. No reliance could be placed on the alleged dying declaration either of the deceased. The view taken by the trial judge in acquitting the accused is a reasonable one based on judicious scrutiny of the evidence and attending circumstances. The genesis of the incident was concealed by the prosecution and twisted version was presented which did not answer the test of acceptability. The genuineness of the F. I. R. was shrouded in dubious circumstances. No doubt, Asgar was the victim of violence, but the prosecution could not prove the guilt of the accused respondent, namely. Ram Sanehi who alone now survives (other one Ram Vilas having died ). ( 17 ) IN the net conclusion, we do not find any merit in this appeal and we hereby dismiss it. The judgement be certified to the lower court. Appeal dismissed. 2005 (2) CRIMES (Article) THE PROVISIONS FOR MAINTENANCE UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE CODE, 1973 : A NEED TO REVIEW. *idt Kaur (1) INTRODUCTION The maintenance of wife, aged parents and minor children has all along been recognized as a personal obligation arising from the very existence of relationship. The maintenance of aged parents, infant children and wife is considered to be the greatest duty of a person to ones near relations. Manu declared : The aged parents, a virtuous wife and an infant child must be maintained even by doing hundred misdeeds. The concept of maintenance evolved at a very early period. Great sages handed it down to us. The Smrities, Commentaries and digests dealt with the subject of maintenance with deep interest. However it is a sensitive problem which has evaded just solution despite best efforts of legislators, jurists and judges. Maintenance can be claimed under various personal (Civil) and Criminal laws, but Section 125 of the Code of Criminal Procedure (Cr. P. C.), 1973, is the most popular because of universality of application, irrespective of caste, creed and religion. Provisions under Section 125 are intended to fulfill a social purpose. Maintenance can be claimed under various personal (Civil) and Criminal laws, but Section 125 of the Code of Criminal Procedure (Cr. P. C.), 1973, is the most popular because of universality of application, irrespective of caste, creed and religion. Provisions under Section 125 are intended to fulfill a social purpose. The basic object of the section is to compel a man to perform the moral obligation, which he owes to the society in respect of his wife, children and parents so that they are not left beggared and destitute on the scrap head of society and thereby driven to life of vagrancy, immorality, and crime for their subsistence. The Parliament in its desire to find a solution to this problem evolved a summary procedure that has found expression under Section 125 of the Code of Criminal Procedure. The section has nothing to do with the conjugal rights but deals with maintenance only. It provides summary procedure, which does not entirely cover the same grounds as civil liability of husband, father or son under personal laws. It only intends to provide speedy remedy against starvation. (2) ANALYSIS OF THE PROVISIONS FOR MAINTENANCE UNDER SECTION 125 OF CR. P. C. AND CERTAIN SUGGESTIONS FOR BETTER IMPLEMENTATION. Though the provisions under Section 125 regarding maintenance have been in force for the last 30 years, various infirmities have been found which need to be plugged to serve better, the purpose for which the Code has been enacted. In year 2000, an important modification was made in Section 125 of Cr. P. C. regarding the amount to be given by way of maintenance. Prior to the amendment a Magistrate of First class upon proof of neglect or refusal by a person having sufficient means could order such a person to make a monthly allowance at such rate not exceeding Rupees Five Hundred in the whole. Another benefit to the beneficiaries by amendment of year 2000 is the insertion of provision for interim awards. These amendments are infact highly beneficial and from the review of statutory provisions of the Code of Cr. P. C. , 1973. It is evident that maintenance is a subject which cannot be discussed in isolation, when it itself suffers from various infirmities. After a detailed study of the subject it is suggested that it would be in the interest of justice to make certain important changes in the Provisions. P. C. , 1973. It is evident that maintenance is a subject which cannot be discussed in isolation, when it itself suffers from various infirmities. After a detailed study of the subject it is suggested that it would be in the interest of justice to make certain important changes in the Provisions. It has been observed that majority of cases under Section 125 do not reach cannons of judiciary because of cumbersome procedure and legislative conflicts and overlapping of different enactments on the subject. It is felt that the law pertaining to maintenance under Section 125 needs to be amended and revised by incorporating certain provisions with a view to update the law. Certain suggestions for modifications are being made so as to make the existing provisions more beneficent. A number of problems fall in the way of starving wives, discarded children and helpless parents coming to claim maintenance under Section 125 of Cr. P. C. in the course of working of said provisions. The loopholes in the provisions impose various hurdles in the way of needy claimants. Though the purpose of Section 125 of the Code of Cr. P. C. is to afford swift and quick relief to the claimants, it is a matter of common observation that in actual practice the cases are not being disposed off for a number of years. By the very nature of proceedings, it is the basic requirement that the claim of maintenance should be expeditiously determined. But due to certain lacunae in the working trends in the courts, the proceedings under Section 125 remain pending for years in the courts. The nature of proceedings demand an expeditious determination of the claim for maintenance. People coming with hope of getting quick relief under Section 125 have to face unwarranted problems and to their utter dismay their cases remain pending for years together in court of law. Therefore it is desired that the summary trial suggested in the statute should be followed in letter and spirit. There is a dire need to devise a procedure with dimensions to provide quick relief to the claimants, which will solve many ancillary problems faced by the claiming parties during the lengthy proceedings. It is suggested that certain steps should be introduced to speed up the trial as : (1) prescribing time limit for filing of written statement. There is a dire need to devise a procedure with dimensions to provide quick relief to the claimants, which will solve many ancillary problems faced by the claiming parties during the lengthy proceedings. It is suggested that certain steps should be introduced to speed up the trial as : (1) prescribing time limit for filing of written statement. (2) Deciding the matter on affidavit with the opportunity to the other side to cross-examine the witness of deponents. (3) Requiring Magistrate to dispose of the matter within 6 months after day-to-day hearing. Grave injustice is caused due to strained construction of the expression unable to maintain themselves in Section 125 (1), as a result of which maintenance has been denied to the claimants on the ground that even though they may not be having any earning in present, if the claimant is an able bodied person he or she could earn their living. An explanation should be added to Section 125 (1) that the expression unable to maintain herself concerns itself with actual separate incoming if any, of the wife and not both possibility or potentiality of the claimants being able to earn for her self by securing employment or by exerting herself. Section 125 (2) provides that maintenance allowance shall be payable from the date of application of maintenance or if so ordered by the magistrate. This provision is usually construed as implying that ordinarily the maintenance amount is payable from the date of passing of the order disposing the proceedings by the magistrate unless the magistrate expressly states for payment of monthly allowance from the date of institution of petition for maintenance. Infact the right to claim maintenance exists on the date of institution of petition and it does not come into existence years later on the date on which the magistrate could dispose of the proceedings. Therefore it should be made mandatory by way of amendment of sub-section (2) of Section 125 that the order of maintenance operates from date of filing of application claiming maintenance and the magistrate has no option or discretion to make it operative from the date of magistrates order awarding maintenance. Therefore it should be made mandatory by way of amendment of sub-section (2) of Section 125 that the order of maintenance operates from date of filing of application claiming maintenance and the magistrate has no option or discretion to make it operative from the date of magistrates order awarding maintenance. It is suggested that provision of sub-sec (2) of Section 125 (3) relating to consideration of the offer of person (against whom an order for monthly allowance by way of maintenance is claimed) to maintain his wife after the passing of order may be deleted. The existence of this provision serves no better purpose than providing a weapon for harassment to the errand husband in as much as the husband can always make an application just in order to tire out the wronged claimant who has won a decision in her favour after a prolonged, costly and unequal battle. It is therefore recommendable to delete this provision altogether. The limitation imposed by Section (4) and (5) of Section 125 on the wifes right to receive maintenance particularly in the context of the rider that she should not be allowed to such allowance, if she is living in adultery works in an oppressive manner in so far as the wife is concerned. A wife can be embarrassed to no end by cross-examination being directed on this aspect. Such course may be adopted with a view to intimidate the wife and make her abandon the proceedings or submit to unfair settlement. Even if a wife is living in adultery in the sense in which the courts have interpreted the expression, it would scarcely be possible to establish it in a court of law by leading satisfactory evidence. A strict proof is required in order to establish such a serious allegation which it is very easy to make and very difficult to prove, even if true. Therefore from practical point of view and in the interest of justice, it is suggested that sub-section (4) and (5) of Section 125 deserves to be amended by deleting the phrase if she is living in adultery occurring in the aforesaid sub-sections. In determining the amount of maintenance, usually the magistrate takes into account the monthly income and not all the resources of non-claimant. It appears that magistrate co-relates the monthly allowance to the monthly income of the husband or the person liable to pay. In determining the amount of maintenance, usually the magistrate takes into account the monthly income and not all the resources of non-claimant. It appears that magistrate co-relates the monthly allowance to the monthly income of the husband or the person liable to pay. It is usually ignored that person liable to pay would have properties and other resources from which adequate allowance can be paid by him. The assets, movable and immovable from which such person can meet the liability perhaps do not enter the reckoning. Moreover, in cases where the non-claimants are salaried class the magistrate, while determining the amount of maintenance is granted, relies on income-tax return as a proof of salary and accordingly calculates the amount to be given by way of maintenance. It is submitted that the return, so given as proof of salary may not be very authentic due to various tactics, which can be practiced by the person liable to pay. It is therefore essential to provide by a suitable amendment that in determining the quantum of maintenance not only the current income of the person liable to pay allowance but also his other resources as existing on the date of institution of petition for maintenance may be taken into account with the end of view to award a sum considered just and fair to enable the claimant to meet his or her basic requirements. It has been gathered that insurmountable problems are placed in the way of awardees for recovering the monthly allowance from the person held liable to pay. The monthly allowance being payable from time to time (month to month), the non-applicant usually make default in making the payment on a number of occasions periodically. Every time proceedings have to be instituted to recover the amount which tends to fall in arrears, entailing unbearable time, cost and money. Further if awardnees are unable to approach the court within one year of the decision of award of maintenance or the last default, the claim of awardees becomes unenforceable. An order passed in favour of claimants can be easily defeated by transferring the properties possessed by the liable person with object to deprive the awardees of benefit of order secured by the awardees on investing considerable time money and effort in procuring the same. The problems of awardees are not over on securing an order for monthly allowance from the court. The problems of awardees are not over on securing an order for monthly allowance from the court. Invariably the awardees are faced with the plea that the claim has been satisfied by a compromise or arrangement arrived at between the parties after the passing of order. It provides scope for another round of litigation and harassment to the awardees. To avoid all such situations it is necessary that a simplified procedure should be provided provided for recovering the amount awarded. It is recommended that an order for maintenance should be final and permanent. It is also recommended that an order maintenance will not be treated as having been discharged or satisfied unless an application is made to the court of magistrate which passed the original order signed by both the parties recording any arrangement which might have been arrived at between them with reasons. The concerned magistrate upon being satisfied that the arrangement is genuine and voluntary, for good consideration, just and fair should record the same. It would be better if the respondent were asked to deposit some amount in the court at time of first appearance for securing the recovery of amount awarded. A person aggrieved by the order of maintenance passed by the magistrate shall have the right to appeal in court of sessions. However, when the appeal is directed against an order awarding maintenance, the appeal shall not be maintainable unless the appellant deposits the amount of arrears from the date or order under appeal in the Court Sessions and produces along an affidavit to the effect that such amount has been deposited and future amount will deposited regularly. The purpose of Section 125 can be served much better and effectively if the Section 125 of the code are made available to the claimant free of cost as a measure of social welfare and legal aid obligation of state. However it would be in the better interest of litigants to establish family courts in all districts, to hear and decide cases relating to maintenance whether under Civil or Criminal Procedure Code such courts require a less formal and more active investigation and inquisition far simplified procedure. The concept of family courts imparts an integrated, broad based service to families in trouble. In such courts the aim of action is finding a solution to the problems engaging the attention of courts. The concept of family courts imparts an integrated, broad based service to families in trouble. In such courts the aim of action is finding a solution to the problems engaging the attention of courts. Thus the family courts can help in avoiding frivolous litigation, if the procedure is made flexible, standard forms to meet all situations be drafted and pre-trial process be laid down, free advice be made available as to the right of the parties as well as their responsibilities and obligations. It is therefore recommended that establishment of the family courts should be made mandatory in every district so as to give broad based service to the parties. Last but not the least it is heart felling to know that amount of maintenance being given to the children at monthly rate is too less to meet the basic requirements of the children. The helpless children who cannot rather should not be made to work to fulfill their needs should be given the basic sufficient amount for their survival. In my submission children should be given the sufficient amount so that they can get proper education, food and clothes. Besides this, the parents who even if, are unable to maintain themselves seem to be reluctant to move for their rights against the children. It is opined that parents should be made aware of their rights to maintenance and should be encouraged to claim the subsistence allowance from their children. (3) CONCLUSION The detailed analysis of the Provisions for maintenance lead to the conclusion that these Provisions and the working of Section 125 Cr. P. C. need to be universally reconditioned so that maintenance is not just a paper right but significantly in practice without any hurdles in the way of needy claimants. Besides that people should be made aware of their rights so that they dont have to starve and fight for their existence. Print and visual media should play a positive and active role in making aware these people about their rights. NOTES AND REFERENCES Tuteja, Rajinder. Commentary on Marriage, Divorce and Maintenance, Ahuja Publishing House, Rohtak, 1998. Lal Rattan and Dhiraj Lal, The Code of Criminal Procedure, 1973 Wadhwa and Company, Nagpur, 2002. Sharm a Preeti. Hindu Womens Right to Maintenance, Deep and Deep Publications, New Delhi, 1994. 41st Report of Law Commission of India. 132nd Report of Law Commission of India. Commentary on Marriage, Divorce and Maintenance, Ahuja Publishing House, Rohtak, 1998. Lal Rattan and Dhiraj Lal, The Code of Criminal Procedure, 1973 Wadhwa and Company, Nagpur, 2002. Sharm a Preeti. Hindu Womens Right to Maintenance, Deep and Deep Publications, New Delhi, 1994. 41st Report of Law Commission of India. 132nd Report of Law Commission of India. Lecturer in Laws, G. N. D. U. Regional Campus, Jalandhar.