Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 9732 of 2005 Petitioner :- Heera Singh Yadav Respondent :- State Of U.P. And Others Counsel for Petitioner :- Pradep Chauhan,Smt. Kamla Singh Counsel for Respondent :- Govt. Advocate,A.N. Srivastava,S.N.Singh
Hon'ble Aniruddha Singh,J.
1. Heard learned counsel for the petitioner and learned AGA. Perused the record.
2. This petition has been preferred by Heera Singh Yadav against State of U.P., his wife Smt. Lalmani Devi and his son Manoj Kumar challenging order dated 23.11.2004 passed by Additional Civil Judge(Jr. Div.) II/Judicial Magistrate, Mohamdabad, Ghazipur in Criminal Case No.114 of 2003( Smt. Lalmani Devi & another vs. Heera Singh) directing the petitioner to pay maintenance of Rs.500/- per month to Smt. Lalmani Devi and Rs.200/- per month to her son Manoj Kumar w.e.f. 31.1.1985 and order dated 14.6.2005 passed by Sessions Judge, Ghazipur in Criminal Revision No 487 of 2000 whereby revision was dismissed and order dated 23.11.2004 was affirmed.
3. Learned counsel for the petitioner submitted that in compliance of order dated 20.9.2005 passed by this Court petitioner has already paid Rs.20,000/- and amount of Rs.700/- per month is being paid to his wife for her and her son.
4. Learned counsel for the petitioner further submitted that son was born in the year 1984 and now he has become major and he is not entitled to maintenance.
5. Learned AGA submitted that impugned orders do not suffer from any infirmity or 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. From perusal of record, it transpires that the petitioner is a Government servant and is posted in Cr.P.F.(Government Department). Hence, amount of maintenance is not excessive.
13. 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.
14. From perusal of record, It is clear that marriage between petitioner and opposite party No.2 is admitted. Under section 112 of Evidence Act, burden lies upon husband to prove the fact about son. So far as question of maintenance to son Manoj Kumar on his becoming major is concerned, At the time of payment, Trial Court under Section 126 and 127 Cr.P.C. is expected to decide on merit.
15. The present petition is bereft of merit and is hereby dismissed.
16. Copy of this order be transmitted to the lower Court immediately.
Order Date :- 24.9.2018 P.P.