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Madhya Pradesh High Court · body

2015 DIGILAW 1086 (MP)

BHAIYALAL v. SUBHADRA BAI

2015-10-09

C.V.SIRPURKAR

body2015
JUDGMENT : 1. This criminal revision preferred on behalf of the applicant Husband Bhaiyalal is directed against order dated 2-8-2006 passed by the Court of Shri B. L. Prajapti, JMFC, Harda, in M.J.C. (Criminal) No. 30/2003, whereby the revision petitioner-Husband Bhaiyalal was directed to pay a sum of Rs. 50,000/- by way of expense of marriage of his major illegitimate daughter respondent No. 2 Anita. 2. The facts necessary for disposal of this criminal revision may briefly be stated thus : Revision petitioner Bhaiyalal had performed Natra marriage with respondent Subhadra Bai. Respondent No. 2 Anita was born from aforesaid union. By order dated 29-6-1991 passed by the Court of JMFC in M.J.C. (criminal) No. 204/1984, revision petitioner Bhaiyalal was directed to pay Rs. 100/- per month as monthly maintenance allowance under section 125 of the Criminal Procedure Code, to respondent Anita. He paid aforesaid sum till 21-12-2001, whereon, the payment was directed to be stopped by order dated 21-12-2001 passed in Recovery Case No. 184/1998 by Chief Judicial Magistrate, Harda, in view of the fact that Anita had attained majority. 3. On attaining the age of marriage, an application under section 125 of the Criminal Procedure Code was filed on her behalf by her mother Subhadra Bai stating that she has no means to marry her off. The estimated expenditure of marriage would be about Rs. 1,00,000/-. Since, the revision petitioner Husband Bhaiyalal, being a teacher, has sufficient means, revision petitioner be directed to pay a sum of Rs. 1,00,000/- for marriage ceremony of Anita. 4. The application was opposed inter alia on the grounds that under section 125 of the Criminal Procedure Code, only a monthly amount of maintenance is payable. Under aforesaid provision, revision petitioner Husband cannot be made to pay a lump sum towards estimated expenditure of marriage of his major illegitimate daughter. 5. Learned trial Court, placing reliance upon the judgment rendered by Rajasthan High Court in the case of Harish Chand vs. Baikunthi Devi and another, 1998 (3) Crimes 391 held that the responsibility for discharging marital obligation was upon the Husband. Therefore, revision petitioner was directed to pay Rs. 50,000/- to the respondents for aforesaid purpose. 6. The impugned order has been challenged before this Court on the sole ground that the learned trial Court had exceeded the legislative mandate of section 125 of Criminal Procedure Code, in awarding Rs. Therefore, revision petitioner was directed to pay Rs. 50,000/- to the respondents for aforesaid purpose. 6. The impugned order has been challenged before this Court on the sole ground that the learned trial Court had exceeded the legislative mandate of section 125 of Criminal Procedure Code, in awarding Rs. 50,000/- to the respondent Anita towards expenses of marriage. 7. In aforesaid circumstances, the question that arises for consideration before this Revisional Court is whether a lump sum by way of expenses of marriage to daughter can be granted under section 125 of the Criminal Procedure Code? 8. To begin with, it may be noted that it is settled position of law that section 125 is a measure of social justice falling within the constitutional sweep of Articles 15(3) and 39, enacted to protect the weaker sections like women and children. (Captain Ramesh Chander Kaushal vs. Mrs.Veena Kaushal and others, AIR 1978 SC 1807 ). The object of the provision is to compel a man to perform the moral obligations, which he owes to society in respect of his wife, children and parents so that they are not beggared and destituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality or crime for their subsistence. The jurisdiction of the Magistrate is preventive and not remedial and certainly not punitive. The scope is limited and orders passed by the Court, as section 127(2) expressly provides, are subject to any final adjudication by civil Court regarding status and civil rights (Bhagwan Dutt vs. Kamla Devi and anr., AIR 1975 SC 83 ), it may further be noted that section 125 only empowers the Magistrate of first class to "orders such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the sum to such person as the Magistrate may from time to time direct :......" 9. In view of the phraseology used in section 125, in the opinion of this Court, the Magistrate has no jurisdiction to travel any further and grant lump sum amount under the head of expenses of marriage of major daughter. In fact the major daughter, unless by reason of any physical or mental abnormality or injury is unable to maintain herself, is not even entitled to monthly maintenance. 10. In fact the major daughter, unless by reason of any physical or mental abnormality or injury is unable to maintain herself, is not even entitled to monthly maintenance. 10. In this regard, learned counsel for the respondent has invited attention of the Court to the judgment rendered by Rajasthan High Court in the case of Harish Chand (supra). In paragraph No. 9 of the aforesaid judgment, it has been held as follows : "Moreover, the responsibility for discharging marital obligations apart from the legal duties is always on the Husband/petitioner in such circumstances. It is accordingly directed that the Husband-petitioner shall deposit a sum of Rs. 1,00,000/- by way of two FDR's in the sum of Rs. 50,000/- each to be deposited in any Nationalized Bank of District-Bharatpur for performance of rituals and ceremonies connected with wedding of respondent No. 2 Miss Mohand Devi and that money shall be inclusively utilized by the respondent No. 1 for her marriage purpose alone." 11. With due respect, this Court is unable to persuade itself to subscribe to the view taken by the learned single Judge of Rajasthan High Court because the only reason advanced for taking such view is that "the responsibility for discharging marital obligations apart from the legal duties is always on the Husband/petitioner". The question to be considered in this regard is whether the marital obligations on the part of the Husband to incur expenses upon the marriage of his daughter and can be translated into a legally enforceable liability, taking the recourse to section 125 of the Criminal Procedure Code. The Court cannot legislate in the garb of interpretation. In the opinion of this Court, the plain wording of the provision cannot be stretched to include within its ambit, a lump-sum granted towards estimated expenditure on marriage of the daughter; therefore, the answer to the question would have been in the negative, in view of the clear object ambit and nature of provision as contained in section 125 of the Criminal Procedure Code. 12. In aforesaid view of the matter, in the opinion of this Court, learned Magistrate exceeded the legislative mandate of section 125 by stretching the provision so as to cover even the estimated expenditure upon the marriage of daughter of revision petitioner and in directing him to pay the same in lump sum. 12. In aforesaid view of the matter, in the opinion of this Court, learned Magistrate exceeded the legislative mandate of section 125 by stretching the provision so as to cover even the estimated expenditure upon the marriage of daughter of revision petitioner and in directing him to pay the same in lump sum. Thus, the impugned order is not sustainable in the eyes of law and deserves to be set aside. 13. Consequently, this revision petition is allowed and the impugned order is set aside.