Parshuram vs Indu Devi

Petitioner has filed this petition with a prayer for setting aside the notice dated 24.08.2022 issued by the Family Court, Durg for appearance of petitioner in proceeding under Section 125(3) of CrPC filed by respondent.

The main contention of the learned counsel for petitioner is that respondent, wife of petitioner, has filed an application under Section 125 of the CrPC along with application for grant of interim maintenance. Application for grant of interim maintenance was allowed and the learned Family Court directed the petitioner to pay some of ₹ 7,000/-per month. The order of interim maintenance was challenged before this Court in CRR No. 844/2022 for enhancement of amount of interim maintenance in which the High Court directed the Family Court to expedite the proceedings and to conclude the same within a period of three months, however, thereafter the respondent did not appear before the Family Court and the proceedings under Section 125 of CrPC came to be dismissed. He submits that as the main proceeding itself came to be dismissed, the proceedings under Section 125(3) of CrPC cannot be permitted to be continue.

I have heard learned counsel for petitioner.

The relationship of petitioner and respondent is not in dispute and further it is not in dispute that learned Family Court has passed the order for grant of interim maintenance to the respondent. The copy of the application under Section 125(3) of CrPC is placed on record as Annexure A-3 along with notice issued to petitioner. In the application, respondent has prayed for the arrears of ₹ 84,000/- which was due for the last 12 months. The provisions under Section 125 of CrPC reads as under:

“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 1* * * 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[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.]

(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 4[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.

Application under Section 125(3) of CrPC is dated 17.08.2022 and as submitted by learned counsel for petitioner that the application under Section 125 of CrPC came to be dismissed on 06.09.2022 for want of prosecution. The provision under Section 125(3) of CrPC is with regard to passing appropriate orders for breach of order issued by the Court including the amount of interim maintenance and further consequences is also provided if after service of notice the amount remain unpaid.

Considering the provisions under Section 125(3) of CrPC, submission of learned counsel for petitioner that upon dismissing an application under Section 125 of CrPC for want of prosecution, the proceedings under Section 125(3) of CrPC will automatically come to an end is not sustainable and it is hereby repelled.

For the foregoing discussion, I do not find any merit in this petition which is liable to be and is hereby dismissed accordingly.