Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 10212 of 2004 Petitioner :- Deena Nath Respondent :- State Of U.P. And Another Counsel for Petitioner :- I.K. Chaturvedi Counsel for Respondent :- Govt. Advocate,Archana Srivastvaa,Pankaj Srivastava
Hon'ble Aniruddha Singh,J.
1. Heard Sri Gopal Ji Srivastava, learned counsel holding brief of Sri I.K. Chatuvedi, learned counsel for the petitioner and learned AGA. Perused the record.
2. This petition has been preferred by Deena Nath against his wife Smt. Kanya and State of U.P. challenging order dated 7.6.2004 passed by Civil Judge(Sr. Div.), Chitrakoot in Case No. 31/XI/2002 whereby application under Section 125 Cr.P.C. was allowed and Rs.600/- per month as maintenance was awarded to Smt. Kanya from the date of application and order dated 30.10.2004 passed by District & Sessions Judge, Chitrakoot whereby revision was partly allowed and amount of maintenance has been reduced from Rs.600/- to Rs.500/- per month.
3. Learned counsel for the petitioner submitted that Smt. Kanya was neither wedded wife of the petitioner nor 'gauna' was solemnized. Hence impugned orders are illegal.
4. In the application of opposite party No.2, she stated that in the year 1993 in the month of 'Jeyesth” marriage of opposite party No.2 was solemnized with the petitioner
5. Learned AGA opposed the contention of learned counsel for the petitioner and submitted that impugned orders do not suffer from any infirmity of illegality.
6. Question is whether opposite party no. 2 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."
7. Question is whether a prudent man can believe that facts shown in the application of opposite party no. 2 do exist.
8. 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."
9. 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."
10. 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.
11. 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.
12. Therefore, all grounds are without substance. No other ground has been pressed before this Court. The Courts below have carefully noticed all facts and have given concurrent finding and view taken by both the Courts is plausible view. Hence no interference is called for in impugned orders.
13. The present petition is bereft of merit and is hereby dismissed.
14. Copy of this order be transmitted to the lower Court immediately.
Order Date :- 24.9.2018 P.P.