Court No. - 41 Case :- CRIMINAL MISC. WRIT PETITION No. - 7197 of 2003 Petitioner :- Bhopal Singh Respondent :- Smt. Neelam & Another Counsel for Petitioner :- P.K.S. Paliwal Counsel for Respondent :- A.G.A.
Hon'ble Aniruddha Singh,J.
1- None is present even in the revised list/call and the writ petition is being decided in the absence of learned counsel for the petitioner.
2- Heard learned A.G.A. and perused the record.
3- This criminal writ petition has been preferred by the petitioner-Bhopal Singh against opposite parties no. 1 and 2 ( Smt. Neelam, wife of petitioner and Km. Sonam (minor- daughter), challenging the order dated 8.8.2003 passed by Additional Sessions Judge (F.T.C.), Court No. 18, Bulandshahar in Criminal Revision No.115 of 2003 (Bhopal Singh vs. State of U.P. and others) and order dated 29.3.2003, in Case No. 326 of 2002 (Smt. Neelam Vs. Bhopal), under Section 125 Cr.P.C. whereby an application filed by opposite party no.1-Smt. Neelam was allowed and the petitioner-Bhopal Singh was directed to pay Rs.1000/- per month as maintenance to his wife and Rs.1000/- per month as maintenance to his minor daughter till she attains the age of majority from the date of application. Against which, the petitioner filed Criminal Revision Nos.115 of 2003, which was partly allowed and maintenance was awarded from the date of judgment dated 29.3.2003 instead of from the date of application, and the petitioner was directed to pay Rs.1000/- per month as maintenance to his wife and Rs.1000/- per month as maintenance to his minor daughter till she attains the age of majority.
4- In brief, the facts are that Smt. Neelam, wife of petitioner, has filed an application under Section 125 Cr.P.C. for maintenance against the petitioner. Petitioner has submitted written statement but he admitted that his marriage was solemnized with opposite party no.1-Smt. Neelam on 20.6.1995 and he stated that his wife left the house of the petitioner along with ornaments and Rs.5000/- cash and living in her parental house and also made an allegation against his wife that she was having love affairs with another person and she performed love marriage with him and is living with her, hence she does not want to return his house. The petitioner is doing nothing and he has no source of income.
5- From the perusal of the record, it transpires that concurrent findings have been recorded by both the courts below that Smt. Neelam and her minor daughter are living separately and the marriage between the parties was admitted and respondent no.2-Km. Sonam is daughter of the petitioner.
6- From perusal of the record, it also transpires that one compromise was taken place between the parties. According to compromise, a sum of Rs.2,00,000/- was paid to Smt. Neelam and Rs.50,000/- was paid to her minor daughter-Km. Sonam, which was deposited in the bank in the form of F.D. for separation of marriage but the compromise did not take place.
7- Complainant examined herself as A.P.W.1 and one witness A.P.W.2- Suresh Singh was also examined. From the side of opposite party, Petitioner examined himself as O.P.W.1 and two witnesses O.P.W.2- D.C. Sharma and O.P.W.-3 Veer Singh were also examined.
8- After considering the material available on record and after hearing the parties, the impugned orders were passed. The allegation made by the petitioner was found false and maintenance of Rs.1000/- per month was awarded in favour of opposite party no.1-Smt Neelam and Rs.1000/- per month to her minor daughter.
9- Marriage between the parties was admitted. The opposite party no.1-Smt. Neelam was having love affairs with another person and she married with him were not proved by the petitioner. The burden lies upon the petitioner to prove this fact that his wife has love affairs with another person and she married with him. It is admitted fact the petitioner is a healthy person, hence in the opinion of the Court that the amount awarded by the courts below in favour of opposite party no.1- Smt. Neelam and her daughter are not excessive.
10- In the memorandum of petition, the petitioner has narrated the grounds as follows:
(i) The impugned order is bad in law, against the evidence on record, illegal and arbitrary.
(ii) Respondent no.1 has love affairs with another person and married with him. She went her parental house and did not return in spite of several attempts made by the petitioner and his family members.
(iii) The maintenance awarded by the courts below is excessive.
11- Learned A.G.A. submitted that the ground raised in the petition is without substance. The courts below have recorded specific findings on this point and the revision has been dismissed. Due to misbehaviour of the petitioner, the wife of the petitioner is living separately.
12- Question is whether opposite party no. 1 has succeeded to prove her case. Prove is defined under Section 3 of Evidence Act which is quoted here as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
13- Question is whether a prudent man can believe that facts shown in the application of opposite party no. 1 do exist.
14- Proceeding under Section 125 Cr.P.C. is summary proceeding. Order does not determine rights of parties as it was held by the Apex Court in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348, wherein following has been observed:-
"It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a Civil Suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."
15. In the case of Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC 1807) Krishna Iyer, J dealing with interpretation of Section 125 Cr.P.C. observed (at Para 9) thus:-
"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 statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for 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 of the derelicts."
16- Section 125 Cr.P.C. is a measure of social justice on this point. It is also pertinent to mention here that intention of legislature also shows that this provision is measure of social justice because initially amount of maintenance was fixed to Rs.500/- per month. Subsequently, it was enhanced upto Rs.5000/- per month and later on these words have been deleted and present position is that there is no financial limit for maintenance under this section.
17- In my opinion even if there is a valid decree of divorce, still the wife is entitled to maintenance till she gets remarried and becomes the wife of another person, if she qualifies all other aspects of Section 125 Cr.P.C. because explanation (b) of Section 125 Cr.P.C. specifically says that wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried.
18- Therefore, all grounds are without substance. No other ground has been pressed before this Court. The Courts below have carefully noticed all facts and has rightly decided the case in favour of opposite parties no. 1 and 2. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present revision is bereft of merit and is hereby dismissed. Stay order, if any, stands vacated.
19-. Certify this judgment to the lower Court immediately.
Order Date :- 24.8.2018 OP