Ratnakar Gupta vs Smt. Shanti Devi Gupta

Rajeshwar Singh, J.—This is an application u/s 482 Code of Criminal Procedure against the Order of the Magistsate refusing to stay the proceedings u/s 125 Code of Criminal Procedure.

The man (applicant) filed a suit against the woman (opposite party) saying that the marriage between him and the woman be declared nullity on the ground that the woman had been married to a third party who was alive on the date of marriage and the woman married the applicant concealing that fact. This suit was filed in the district where the man lived. The woman filed an application in the High Court for transfer of that case from the district saying it was not safe for her to visit that district where the husband resided. In those proceedings the hearing of suit was stayed by the High Court. The woman riled a case u/s 125 Code of Criminal Procedure for maintenance in the district where her father resided. The man applied that the proceedings of this case by stayed till the decision of the suit filed by him. The trial Court refused to stay the proceedings. Against that Order the man filed the present aplication.

The first point that has been pressed is that proceedings u/s 125 Code of Criminal Procedure are not maintainable because the factum of marriage is denied by the man. The Section 125 Code of Criminal Procedure says that if any person neglects to maintain his wife a Magistrate may Order such person to make a monthly allowance for maintenance. The section merely says that it is applicable when a person refuses to maintain his wife. It does not say that it is applicable when a person refuses to maintain one who is admittedly wife of that person. Even under Indian Penal Code when a section provides for punishment of an offence all ingredients of that section can normally be proved in the case itself and it is not expected that some ingredient of the section must previously be admitted by the accused or the prosecution. In the present case it is one of the ingredients of the section that the woman claiming maintenance is wife of the person against whom maintenance is claimed. This ingredient can be proved in proceedings u/s 125 Code of Criminal Procedure and there does not appear any justification for inferring that it should be admitted by the man, against whom the proceedings are started, that the person claiming maintenance is his wife. If it is otherwise then the very purpose of Section 125 Code of Criminal Procedure would be defeated, because in every case it would be possible for the man to deny that the person claiming maintenance is his wife. So it appears that this section does not cease to operate when the relationship of the marriage is denied. It is competent to the Magistrate to allow an issue on the question to be raised and decided.

The object of Section 125 Code of Criminal Procedure is to avoid vagrancy and starvation by providing a speedy remedy for maintenance and as said earlier this object would be defeated if the proceedings can be obstructed by a simple denial by the man that the person claiming maintenance is not his wife.

It is not the case that in case the Magistrate decides against the husband the husband will be debarred from establishing his right in the Civil Court and he will suffer on account of a summary remedy. Section 127(2) Code of Criminal Procedure provides that in consequence of any decision of the Civil Court the Order of maintenance passed u/s 125 Code of Criminal Procedure can be cancelled or varied. So in this case if the man succeeds in his suit that has been filed in the. Civil Court for declaring the marriage to be a nullity, he can get the Order passed in proceedings u/s 125 Code of Criminal Procedure varied.

The case of Smt. Sumitra Devi v. Bhikhan Chaudhari 1985 AWC 231 : 1985 ACR 143 may be referred. In this case a woman initiated proceedings u/s 125 Code of Criminal Procedure. The man took the plea that he was never married to that woman. The trial Court decided the matter in favour of the woman. The Additional Sessions Judge reversed the decision and revision by the High Court was dismissed. The matter went to Supreme Court. The Supreme Court set aside the judgment of High Court and sent back the case to the Magistrate with the directions that the point be decided after giving opportunity to the parties to lead further evidence. This means that the Supreme Court was of the view that the point whether the woman was wife of that man can be decided in proceedings u/s 125 Code of Criminal Procedure.

Another point that has been pressed is that the Magistrate was not justified in refusing to stay the proceedings of the case till the decision of the Civil suit. Section 125 Code of Criminal Procedure is meant for providing the speedy remedy to save the wife from starvation. In the case of Savitri Devi v. Sri. Govind Singh Rawat 1985 AWC 906 the Supreme Court held that even interim relief could be granted ex-parte. This was considered necessary because if it was not done then in many cases the wife may not remain even alive to reap the fruits of the Order of the Magistrate that may ultimately be passed in her favour. If proceedings u/s 125 Code of Criminal Procedure are stayed for long time the same difficulty will arise and ''the same considerations are available which are available for granting interim maintenance to the wife. On account of stay of proceedings the wife may starve and may not remain alive to see the ultimate result of the proceedings. Hence it is not proper in such a case to stay the proceedings.

No doubt the woman filed an application for transfer of the suit filed by the man and obtained a stay Order in that case. But it can not be said that the application of the woman was frivolous. Woman in India belong to weaker Section. It is not possible for them to go to other district and do pairvi of the case. The apprehension that it is unsafe for her to go to that district may be very much genuine. So it can not be said that the woman has got the proceedings of the suit stayed with ulterior motive and on account of this stay Order Court can not create a condition under which the woman may Starve and may not get Maintenance for long time to come. If the man wants to expedite the proceedings, he should appear in the transfer application pending before the High Court and get the matter expedited, but it will not be a ground for staying the proceedings u/s 125 Code of Criminal Procedure. So it does not appear that the Order passed by the Magistrate refusing Jo stay the proceedings u/s 125 Code of Criminal Procedure is unjust or much less perverse.

Therefore, there should be no interfernce by this Court in proceedings u/s 482 Code of Criminal Procedure. The application u/s 482 Code of Criminal Procedure is dismissed.