Jagdish Singh Negi vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

Section 125 of the CrPC, which, for the purposes of brevity to adjudicate the present Criminal Revision, is quoted hereunder:-

"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 not exceeding five hundred rupees in the whole, 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.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(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 allowances 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, suchMagistrate 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.

(4) No Wife shall be entitled to receive an allowance 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."

It contemplates that the principal proceeding for determination of the maintenance to be payable to the applicant to the application under Section 125 Cr.PC, its payable only on its final determination. The determination of application under Section 125 Cr.PC, by way of its final adjudication, would entail the consideration of all the evidences, and contentions of the parties, which are adduced in support of the application or in defence of their respective cases, and once its ultimate determination is made after considering the rival contentions and merits of the respective parties, it goes without saying that the said reasoning has had to be with a rationale application of mind by the Court because if falls to be an adjudication of liability and right while quantifying the maintenance to be payable by the adversary to the applicant under Section 125 Cr.PC.

The interpretation to the provisions contained under Section 125 Cr.PC for the purposes of present Criminal Revision, has to be splitted into two parts for its consideration. At present, what we are concerned is, with the provisions contained under sub Section (2) of Section 125 Cr.PC, which was substituted by the Act No. 50 of 2001, which provided for the payment of interim maintenance or expenses to the applicant to the application under Section 125 Cr.PC. Sub Section (2) of Section 125 CrPC, still could be further be sub divided into two parts as it deals with the payments of the allowance of "maintenance", and the "interim maintenance". The determination of "maintenance", the determination of "interim maintenance", and determination of "payable allowances", cannot be considered in its equivalent parameters and same yardstick, the consideration while deciding the main application under Section 125 Cr.PC. An "interim maintenance", in its literal meaning would be a maintenance, which has to be determined by the Family Court in order to make the applicant to the application under Section 125 CrPC, to sustain himself or herself in order to meet bare necessities, during the pendency of the consideration of the main application under Section 125 Cr.PC. The implications of the interim maintenance that it has had to be a reason assigned therein cannot be considered in its equivalent parlance for the consideration of the final adjudication of the application.

The learned counsel for the revisionist herein while assailing the impugned order under challenge i.e. dated 1st October 2019, as rendered by the Judge Family Court, Kotdwar, District Pauri Garhwal in Miscellaneous Case No. 97 of 2018, Smt. Mala Negi v. Jagdish Singh Negi, the Court has determined an interim maintenance only payable during the process while deciding the application paper number 5 (kha), which has been assessed as to be a sum of Rs. 14000/- per month, and the same was determined on the basis of the evidences adduced by the applicant/respondent No. 2 herein by producing the salary bill of the revisionist on record, showing that the income, accruing to the revisionist happens to be of Rs. 67,857/- per month.

What would be significant to record is that the counsel for the revisionist had made a reference to a judgement reported in 2015 (2) SCC Criminal 92, Jaiminiben Hirenbhai Vyas and another v. Hirenbhai Rameshchandra Vyas and another, particularly, he has made reference to the contents of para 4 of the said judgement and has drawn the attention of this Court to the concluding part of the said paragraph which contemplates that while deciding an application under Section 125 CrPC, there must be a prior determination of essential points thereof and reasons for such decision. Para 4 of the said judgement reads as under:-

"4. The relevant part of Section 125 reads as follows:

"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 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."

The provision expressly enables the Court to grant maintenance from the date of the order or from the date of the application. However, Section 125 of the Cr.P.C. must be construed with sub-section (6) of Section 354 of the Cr.P.C. which reads thus:

"354 (6) Language and contents of judgment

(6)- Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision."

(emphasis supplied)

Therefore, every final order under Section 125 of the Cr.P.C. [and other sections referred to in sub-section (c) of Section 354] must contain points for determination, the decision thereon and the reasons for such decision. In other words, Section 125 and Section 354 (6) must be read together."

What is being sought to be argued by the learned counsel for the revisionist is that since sub Section (2) of Section 125 CrPC contains the determination of both "maintenance", or "interim maintenance", and hence when an adjudication is made under sub Section (2) of Section 125 CrPC in relation to an interim maintenance, the parameters provided therein for consideration and for assigning reasons, laying down the point of determination becomes essential. This Court is not agreeing with the argument as extended by the learned counsel for the revisionist that for deciding an application of grant of interim maintenance point of determination has to be framed, the reason being that the Hon'ble Apex Court in aforesaid case was ceased with the matter, where the determination was contemplated to be a final determination under Section 125 CrPC, and obviously where it's a final determination then the Courts are required to consider and reasons for its determination. It didn't contemplated the stage of consideration of interim maintenance.

But any tentative determination of interim maintenance which is to be paid an elaborates consideration of the case on its merits is not mandated by the provisions contained under sub Section (2) of Section 125 CrPC, in a manner in which it has to be sought to be argued by the learned counsel for the revisionist. He further submits that under sub Section (2) of Section 125 CrPC, as to what would be the parameters to be considered for awarding the maintenance either from the date of the order or from the date of the application. He submits that the direction to make the payment from the date of application has to assign reasons, though apparently it would seem to be quite laudable argument, but this Court is not agreeing to accept the said arguments for the reason being particularly in the facts of the present case, the application under sub Section (2) of Section 125 CrPC, for the grant of interim maintenance takes the shape of determining the certain apparent facts and circumstances which is being considered by the Court, prior to the adjudication under Section 125 CrPC. Hence, it cannot be said that it is the case where there is a merit adjudication of rights by way of final determination which would entail the determination of points of consideration and assigning of the detailed reasons therein.

The aforesaid logic and reasoning as it has been argued by the learned counsel for the revisionist that even when interim application is for the grant of maintenance is being decided, there has had to be a point of determination in the light of the judgement of Hon'ble Apex Court in the case of Jaiminiben Hirenbhai Vyas and another (supra), is not acceptable because if at the stage of considering the application for the grant of interim maintenance, if the Court scrutinises the controversy with all intricacies involved in it by framing the point of determination, it may have an adverse affect in long run at the stage when the principal application under Section 125 Cr.PC is being adjudicated on merits because any finding, if at all would have a possibility of prejudicing the minds of the Court which may ultimately cease with the final adjudication of the case. Hence, I hold that at the stage when the interim application is being considered, there is no requirement as such to frame a point of determination to adjudicate the same, as it does not affect or determine a right or a liability of a party to the proceedings.

Furthermore, the argument of the learned counsel for the revisionist is not accepted by this Court for the reason being that if the finding recorded by the Court below is taken into consideration, particularly, as that recorded in para 3 to the effect that as against the application filed under Section 125(2) CrPC i.e. paper No. 25 (kha), the said application was not objected in writing by the present revisionist by filing any objection to it. Furthermore, the determination since was made by the learned Family Court only for granting an interim maintenance based upon the salary bill, presented by the applicant respondent herein so as to assist the Court to determine and compute the interim maintenance payable based on the actual income accruing to the revisionist, there was material on record, which has been considered by the Court for granting of an interim maintenance @ Rs. 14000/- per month directed to be made payable to the respondent No. 2, hence since the Court has considered the evidence on record, since the pleading and the evidence remained uncontroverted by revisionist, this Court holds that the order dated 1st October 2019, determining the maintenance @ Rs. 14000/- per month does not suffer from any mistake or an apparent error calling for an interference under Section 397 of CrPC.

In view of the aforesaid observations, the revision lacks merits and the same is accordingly dismissed.