Court No. - 41
Case :- CRIMINAL REVISION No. - 4025 of 2005 Revisionist :- Gautam Sharma Opposite Party :- State Of U.P. And Others Counsel for Revisionist :- S.K. Pal,Prem Prakash Tiwari Counsel for Opposite Party :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
None is present on behalf of revisionist as well as opposite party No.2 even in the revised list. Heard learned AGA and perused the record.
This criminal revision has been filed against judgment and order dated 29.7.2005 passed passed by Civil Judge(Jr. Division) Court No.1/Judicial Magistrate, Ghaziabad in Case No.19 of 2004 thereby Rs.500/- per month as maintenance was awarded in favour of Sakshi Sharma from the date of judgment.
From the perusal of record, it transpires that marriage of Sakshi was solemnized with Gautam Sharma on 4.2.1995, hence it is admitted that she is wife of revisionist. She was bound to live separately due to misbehaviour of revisionist. The revisionist is unemployed, hence Rs.2500/-3000/- per month income was assessed by the trial Court. Main ground made in revision is that opposite party No.2 had already solemnized marriage on 12.7.2003 with one Ajay Kumar without getting decree of divorce from the revisionist and thereafter marriage certificate was issued to her by the office of Hindu Marriage Registrar, Ghaziabad on 24.11.2003 and it is alleged that it is strict proof of adultery.
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."
Under Section 125 Cr.P.C."a person having sufficient means" means a person who has capacity to earn. When actual income could not be proved by the wife, the average income of husband is to be assessed; and following this principle, Court below has rightly held that income of revisionist is Rs.2500-3000/- per month and awarded Rs.500/- per month from the date of order.
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."
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.
Question is whether the allegation that wife is living in adultery, has been proved by the revisionist or not. In this regard it is pertinent to quote Section 125 (4) Cr.P.C.
"(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."
Provision of Section 125(4) Cr.P.C. is an exception to general rule. Burden lies on husband to prove that his wife is living in adultery.
In the case of Laharam v. Melan Bai, 1987(2) Crimes Page 560 (Madhya Pradesh), it has been held that charge of adultery must be proved by cogent and reliable evidence.
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.
This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. The present revision is bereft of merit and is hereby dismissed.
Copy of this judgment be transmitted to the Court concerned immediately.
Order Date :- 26.7.2018 P.P.