List revised.
This revision has been filed by the revisionist - Ashfaque Hussain against Smt. Nasreen Akhtar and another against the order dated 20.05.1997 passed by Additional Principal Judge, Family Court, Kanpur Nagar in Case No. 342 of 1996 (Smt. Nasreen Akhtar Vs. Ashfaque Hussain under Section 125 of Cr.P.C, whereby the learned Court granted Rs.500/- as maintenance to Smt. Nasreen Akhtar.
The brief facts of the case are as follows:-
Smt. Nasreen Akhtar moved an application under Section 125 Cr.P.C. against the revisionist on the ground that she is legally married wife to Ashfaque Hussain. In spite of her best efforts the relation with the husband was not proper and also used to say that she is not a beautiful as per his wishes. He used to torture physically as well as mentally. After exchange of pleadings and taking evidences of the parties, the learned Judge found that applicant is unable to maintain her as there is no source of income of the applicant. The opposite party has enough resources to maintain the applicant - wife.
Section 125 in The Code Of Criminal Procedure, 1973 are 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
1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ).
(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. 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) 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, 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 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.
Learned court has also observed that the same was dismissed. So there was sufficient ground for making an application for maintenance where from the opposite party - revisionist herein. Respondent - wife moved a divorced petition, which was dismissed.
The main contention of the revisionist is regarding the facts, which is admitted to the opposite party / wife that she was divorced lady, but this fact is herself refuted by the opposite party - husband during the proceedings before the learned judge, so this fact can not interfere.
It is also argued that opposite party - wife has already married, but I think this point cannot be raised in this revision. The application before the competent court under Section 127.
Section 127 in The Code Of Criminal Procedure, 1973 are as follows:-
"127. Alteration in allowance.
(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Magistrate may make such alteration in the allowance he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-
(i) in the case where, such sum was paid before such order, from the date on Which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order."
It is also argued by the learned counsel for the revisionist that there is no source of income of revisionist and he is unable to maintain the opposite party - wife. In this case Rs.500/- is fixed for maintenance and I think that any person can very well manage that money and on this ground the impugned order cannot be quashed. Moreover there is no perversity in the order and hence no interfere in the matter is required.
Keeping in view of the discussion made as above I do not find any good ground to interfere in the impugned order. The revision lacks merits and is dismissed.
The interim order dated 23.07.1997 passed by this Court is vacated and hereby discharged.
The revisionist is directed to make the payment as per judgement and order dated 20.05.1997 passed by Additional Principal Judge, Family Court Kanpur Nagar.
Order Date :- 2.5.2016 Vinod.