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Himachal Pradesh High Court · body

2022 DIGILAW 14 (HP)

Subash Chand S/o Prem Chand v. Kiran Bala W/o Subash Chand

2022-01-06

TARLOK SINGH CHAUHAN

body2022
ORDER : 1. The petitioner is present in person and admittedly is an able-bodied person. Henceforth, he shall not be entitled to any legal aid from the H.P. State Legal Services Authority. 2. It needs to be noticed that on account of legal aid being provided by the H.P. State Legal Services Authority, the petitioner has encouraged himself to multiply the litigation. Henceforth, the Secretary, H.P. Legal Services Authority shall ensure that merely on account of a person being eligible for legal aid that too an able bodied person like the petitioner, legal aid shall not be granted. 3. Prima-facie, satisfaction must be recorded to ensure that the purpose of litigation is bona fide and not mala-fide as is in the instant case, where the petitioner despite being ablebodied person, has sought maintenance from his wife, who is working with some contractor in the Project, thereby, trying to make both ends meet. 4. In case, the facts of the case are adverted to, it would be noticed that the petitioner-husband has filed the petition under Section 125 Cr.P.C. against his wife seeking maintenance to the tune of Rs. 10,000/- per month. Unfortunately, despite being not maintainable, on the fact of it, the learned Court below, for some strange reasons, has chosen to entertain the petition. 5. Section 125 Cr. P.C. reads as under: 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. (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself. (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. (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself. (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. (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 sub-section, 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 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. 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. (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 months [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 wifes 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. (5) On proof that any wife in whose favour an order has been made under this section in 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. 6. (5) On proof that any wife in whose favour an order has been made under this section in 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. 6. It is apparent from the bare perusal of Section 125 Cr.P.C. that the application for maintenance under this Section normally be made by the wife herself or child or either both of them to claim maintenance and in no event can husband, that too able bodied person, file the petition seeking maintenance under Section 125 Cr.P.C. 7. This section is a measure of social justice and special enactment to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. The object of this Section is to provide speedy justice to those, who are in distress, by a summary procedure to enforce liability in order to avoid vagrancy. They are intended to achieve the social purpose. This Section gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves and not intended to give final determination of the rights of the parties. 8. Bearing in mind intention of the legislature and taking into consideration the expressed language of Section 125 Cr.P.C. it can conveniently be held that right to claim maintenance is conferred only to those persons, who have been specifically mentioned in this section. Since the husband does not find any place in the section, obviously the claim of maintenance by the petitioner is not maintainable. 9. That apart, as observed above, the petitioner-husband is able-bodied person and it has to be inferred that he has the means to maintain himself rather to claim maintenance. 10. The Court have gone to the extent to hold that even if the husband may be insolvent or a professional beggar, or a minor or a monk, but he must support his wife so long as he is able-bodied and can eke out his livelihood. It is solemn duty of the husband and he cannot run away from the duty by simply saying that he has no means. 11. It is solemn duty of the husband and he cannot run away from the duty by simply saying that he has no means. 11. To say the least, the proceedings initiated by the petitioner, that too after availing the benefit of legal aid, is nothing but the grossest abuse of the process of the Court, therefore, cannot be countenanced. 12. This Court need not to go into the question of legality of the order impugned herein as proceedings initiated before the learned court below itself are without jurisdiction and are ordered to be quashed in its entirety. 13. It is made clear that the petitioner shall not indulge in such misadventure in future or else the court shall be constrained to take strict action against him. 14. The petition is dismissed, in the aforesaid terms, so also the pending applications, if any. 15. A copy of this order be sent to the H.P. Legal Services Authority for compliance.