Ashok Kumar Kashyap vs State of U.P. and Others

Jayashree Tiwari, J.—The present criminal revision has been filed against the order dated 24.12.1999 by Additional Sessions Judge (Family Court, Moradabad) in Case No. 38/11/2000 awarding Rs. 300 in respect of Respondent No. 2 and Rs. 300 in respect of Respondent No. 3 in proceeding u/s 125, Cr. P.C.

Briefly, the facts of the case as alleged are that the order of the learned lower court is illegal and without jurisdiction. Admittedly a case u/s 639 of 1999 was filed by the revisionist on 24.12.1999 for restitution of conjugal rights and after receiving notices of said suit the Respondent has filed the present case u/s 125, Cr. P.C. on 4.2.2000. In the said case u/s 24 of Hindu Marriage Act for pendente lite amount as well as interim maintenance. The trial court awarded Rs. 500 as maintenance vide order dated 12.9.2001 as interim maintenance till the decision of the case, the said amount regularly been paid to the revisionist and the suit for conjugal rights is pending.

The impugned order passed by the learned trial court u/s 125, Cr. P.C. is in violation of the principles of natural justice. The revisionist has already filed an application u/s 126, Cr. P.C. for setting aside the ex parte order but the execution proceedings of the order dated 27.10.2004 is still going on and the warrant of arrest has been issued. The Respondent No. 2 is living at her parents place out of her own sweet will, that in suit for restitution of conjugal rights opp. party No. 2 is regularly getting Rs. 250 from the revisionist, hence she is not entitled to another maintenance in the present proceeding.

Since the maintenance has been awarded from the date of the application and no reason has been assigned or recorded by the trial court.

In this connection provisions as enunciated in Section 125, Cr. P.C., was considering which lays down as follows:

Section 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 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 for proceeding under the second proviso shall, as far as possible be disposed of within sixty days from the date of the service of the 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 for 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.

(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.

Alteration in allowance. -(1) On proof of a change in the circumstances of any person, receiving, u/s 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made u/s 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

So far as the question of maintenance from the date of order is concerned, it is in the discretion of the Magistrate and from the perusal of the record, it appears that discretion has been judicially exercised, hence on that account, the revision appears to be not maintainable but so far as contention of the revisionist is concerned, that under the suit for restitution of conjugal rights revisionist has been awarded regular maintenance of Rs. 250 per month, in that case award of Rs. 300 as maintenance granted by Magistrate u/s 125, Cr. P.C. is varied to the extent that instead of paying Rs. 300 per month to the Respondent No. 2. Revisionist be allowed to be paid Rs. 150 per month to Respondent No. 2 as maintenance. Instead of granting Rs. 300 per month as maintenance to Respondent No. 3 considering the fact that by family court under the restitution for conjugal rights she has been granted Rs. 250 as maintenance, it is directed that she be paid Rs. 150 per month as maintenance instead of Rs. 300.

The revision is partly allowed to the extent that alleged order of learned lower court directing revisionist to pay Rs. 300 per month is modified to the extent that he is directed to pay Rs. 150 per month as maintenance under the proceeding u/s 125, Cr. P.C.

With these observations, the present criminal revision is partly allowed.