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Allahabad High Court · body

2021 DIGILAW 39 (ALL)

Mithilesh Maurya v. State of U. P.

2021-01-08

YOGENDRA KUMAR SRIVASTAVA

body2021
JUDGMENT : 1. Heard Sri Moti Lal, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General, assisted by Sri Arvind Kumar, learned A.G.A., for the State opposite party no.1. 2. The present application filed under Section 482 Cr.P.C., seeks quashing of an order dated 15.10.2020, passed by the Additional Principal Judge, Family Court No. 1, Azamgarh, in proceedings in Case No. 56 of 2018 (Drumlata Maurya vs. Mithlesh Maurya) filed under Section 125 of Cr.P.C., Police StationDeedarganj, District Azamgarh. 3. In terms of the order dated 15.10.2020, which is sought to be quashed, the application (paper no. 18Kha) filed by the opposite party no.2Smt. Drumlata Maurya, seeking interim maintenance, has been allowed. 4. Learned Additional Advocate General appearing for the State respondents, has raised an objection with regard to the maintainability of the present petition on the ground that the order dated 15.10.2020, which is sought to be challenged, relates to grant of interim maintenance, which is subject to final adjudication on the main petition filed under Section 125 Cr.P.C. It is submitted that it is open to the applicant to raise all his objections before the Family Court, and the present application under Section 482 Cr.P.C., is not liable to be entertained. 5. In order to appreciate rival contentions, the relevant statutory provisions relating to maintenance of wives, children and parents under the Code of Criminal Procedure, 1973, may be referred to. 6. Section 125 Cr.P.C. falls under Chapter IX of the Code of Criminal Procedure, 1973 and it contains provisions whereunder, an order for maintenance of wives, children and parents can be made. The object of the provisions contained under Chapter IX is to provide a speedy and effective remedy against persons, who neglect or refuse to maintain their dependant wives, children and parents. 7. The provisions contained under Section 125 Cr.P.C., as they stand today, are extracted below : 125. Order for maintenance of wives, children and parents. The object of the provisions contained under Chapter IX is to provide a speedy and effective remedy against persons, who neglect or refuse to maintain their dependant wives, children and parents. 7. The provisions contained under Section 125 Cr.P.C., as they stand today, are extracted below : 125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order 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 same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means : Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation. Explanation. For the purposes of this Chapter, (a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment 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 levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding 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. (4) No Wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (4) No Wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." 8. The second proviso to Section 125 Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 2001[Amendment Act, 2001] [w.ef. 24.9.2001] and in terms thereof, the Magistrate may, during the pendency of the proceedings regarding monthly allowance for the maintenance under subsection (1) of Section 125, order such person to make a monthly allowance for the interim maintenance of his wife or his child, father or mother and the expenses of such proceeding, which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct. 9. In terms of the third proviso, an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. 10. The aforementioned provision with regard to interim maintenance was inserted taking into consideration that an applicant, after filing application in a Court under Section 125 Cr.P.C., had to wait for several years for getting relief from the Court and for the said reason, the provision for grant of interim maintenance was considered necessary to obviate the difficulties. 11. The Statement of Objects and Reasons appended to the Bill in terms of which the amendment was made, reads as follows : "It has been observed that an applicant, after filing application in a court under section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the Court. It is, therefore, felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. It is, therefore, felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that this order be made ordinarily within sixty days from the date of the service of the notice." 12. Chapter IX of the Code of Criminal Procedure, 1973 contains provisions for making orders for maintenance of wives, children and parents. The subject matter of the provisions contained under the chapter though essentially of a civil nature, the justification for their inclusion in the Cr.P.C., is to provide a more speedy and economical remedy than that available in civil courts for the benefit of the persons specified therein. The provision for grant of interim maintenance in terms of the second proviso to Section 125 Cr.P.C. is for providing a simple and speedy remedy, and to ensure that the neglected wife, children and parents are not left destitute and without any means for subsistence. 13. The proceedings for maintenance under Section 125 Cr.P.C. are of a summary nature and the purpose and object of the same is to provide immediate relief to the applicant. An application under Section 125 Cr.P.C. can be moved by the wife on fulfilment of two conditions :a) the husband has sufficient means and; (b) he neglects or refuses to maintain his wife, who is unable to maintain herself. The Magistrate, in such a case, may direct the husband to pay such monthly sum of the money, as deemed fit taking into consideration the financial capacity of the husband and other relevant factors. 14. The object of the provision being to prevent vagrancy and destitution, the hardship faced by the wife in having to wait for several years before being granted maintenance, was taken note of in the Statement of Objects and Reasons of the Amendment Act, 2001 and an express provision was introduced for grant of interim maintenance. In terms of the second proviso inserted by means of Amendment Act, 2001 the Magistrate has been vested with the power to order the husband to make a monthly allowance towards interim maintenance during the pendency of the proceedings. 15. In terms of the second proviso inserted by means of Amendment Act, 2001 the Magistrate has been vested with the power to order the husband to make a monthly allowance towards interim maintenance during the pendency of the proceedings. 15. The third proviso of Section 125 mandates that the application for grant of interim maintenance must be disposed of as far as possible within 60 days from the date of service of notice of the application on the husband. 16. The provisions with regard to grant of maintenance under Section 125 Cr.P.C. and the duty of the husband towards the wife in regard thereof, came up for consideration in the case of Bhuwan Mohan Singh vs. Meena & others, (2015) 6 SCC 353 , and referring to the earlier decisions in Smt. Dukhtar Jahan v. Mohammed Farooq, (1987) 1 SCC 624 , Vimala (K.) v. Veeraswamy (K.), (1991) 2 SCC 375 and Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479 it was held that the proceedings are summary in nature and they intend to provide a speedy remedy and achieve a social purpose. The observations made in the judgment in this regard are as follows : "7. We are obliged to reiterate the principle of law how a proceeding under Section 125 of the Code has to be dealt with by the court, and what is the duty of a Family Court after establishment of such courts by the Family Courts Act 1984. In Smt. Dukhtar Jahan v. Mohammed Farooq (1987) 1 SCC 624 , the Court opined that: (SCC p. 631, para 16) “16. .....Proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.” 8. A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) (1991) 2 SCC 375 , while discussing about the basic purpose under Section 125 of the Code, opined that: (SCC p. 378, para 3) "3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. 9. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. 9. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat (1996) 4 SCC 479 , while adverting to the dominant purpose behind Section 125 of the Code, ruled that: (SCC p. 489, para 15) “15. … While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.” 17. It is, therefore, seen that Section 125 Cr.P.C. is in the nature of a benevolent provision having a social purpose with the primary object to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy. 18. The third proviso to Section 125 Cr.P.C. gives a timeframe by providing that the proceedings for interim maintenance, shall, as far as possible, be disposed of within 60 days' from the date of service of notice on the husband. This is in conformity with the object of the provision, which is in the nature of a social legislation providing for a summary and speedy relief by way of grant of maintenance to a wife, who is unable to maintain herself and her children. 19. An order granting interim maintenance is subject to final adjudication on the main petition and the interim maintenance granted during the pendency of the proceedings is only a provisional maintenance subject to final determination to be made on the conclusion of the proceedings. 20. 19. An order granting interim maintenance is subject to final adjudication on the main petition and the interim maintenance granted during the pendency of the proceedings is only a provisional maintenance subject to final determination to be made on the conclusion of the proceedings. 20. Having regard to the aforesaid, this Court is not inclined to exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973, in respect of the reliefs prayed for. 21. Counsel for the applicant at this stage, makes a prayer that he may be permitted to withdraw the present application and states that applicant would contest the proceedings before the court below. 22. The present application filed under Section 482 Cr.P.C. stands, accordingly, dismissed.