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Judgment
Rajesh Tandon, J.—Heard Sri Dinesh Chauhan, counsel for the revisionist, Mr. Atul Tripathi holding the brief of Sri B.D. Upadhyay, counsel for the opposite party No. 1 and A. G. A. for the State.
By the present revision, the revisionist has prayed for a setting aside the order dated 9th August, 2001 passed by the Sessions Judge, Almora in Misc. Criminal Case No. 34/93 by which the revision has been allowed and a direction for payment of Rs. 500/- per month in proceedings u/s 125 of the Code of Criminal Procedure has been set aside.
Briefly stated, an application was moved by Smt. Champa Devi in the Court of Judicial magistrate, Ranikhet District Almora on 23rd December, 1983 for the award of Rs. 500/- per month as maintenance under the provisions of Section 125 of the Code of Criminal Procedure. It was mentioned therein that the revisionist and the opposite party No. 1 were married in the year, 1969, but they could not live together as the opposite party No. 1 the husband was serving in CRPF and ultimately when there was no issue, the applicant was turned out from the house. It has also come in the evidence that the husband-opposite party No. 1 has remarried.
Trial Court vide order dated 13th August, 1999 has come to the conclusion that the applicant deserves to be maintained and she is entitled for getting the maintenance allowance in accordance with the provision of Section 125 of the Code of Criminal Procedure.
Section 125 of the Code of Criminal Procedure provides the order for maintenance of wife, children and parent. Section 125 of the Code of Criminal Procedure provides 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, or
(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or
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 childe 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, also 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 purpose 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.
Counsel for the revisionist has submitted that in view of the aforesaid fact that the husband has remarried and there was no rhyme or reason to neglect the revisionist and oust her from matrimonial house, the order passed by the revisional Court deserves to be set aside order passed by the revisional Court deserves to be set aside.
Counsel for the respondent has referred Clause 4 of the Section 125 of the Code of Criminal Procedure stating therein that once she has refused to live with her husband and is also living separately with her mutual consent outside her matrimonial house, she is not entitled for any maintenance.
In Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. AIR 1978 SC, the Apex Court has observed as under:
This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statues calling for construction by courts are not petrified print but vibrant words with social functions to fulfill The brooding presence of the constitutional empathy fro the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause-the cause of the derelicts.
In Rohtash Singh Vs. Smt. Ramendri and Others, , the Apex Court has observed as under:
Sub-section (4) of Section 125 Cr.P.C. provides as under:
(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.
Under this provision, a wife is not entitled to any maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance u/s 125 of the Code of Criminal Procedure.
A perusal of the record shows that there is no evidence on the record showing that she is living separately by mutual consent and Sub Clause (4), has no application in the present case.
In view of the aforesaid, order dated 09.08.2001 is quashed. The matter is sent back to the revisional Court for deciding afresh in the light of the observations made above.
Present Criminal Revision is allowed.