Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 7341 of 2005 Petitioner :- Kripal Singh Respondent :- State Of U.P. And Another Counsel for Petitioner :- Jai Shanker Audichya,Hari Prakash Mishra Counsel for Respondent :- Government Advocate,Satendra Gupta
Hon'ble Aniruddha Singh,J.
1- List has been revised. Learned counsel for the petitioner is not present and the case is being decided on merit in his absence.
2- Heard learned A.G.A. and perused the record.
3- This writ petition has been filed by the petitioner challenging the order dated 4.12.2004 passed by the Judicial Magistrate, Etah in case no. 3263 of 2003 and order dated 3.6.2005 passed by the Additional Sessions Judge, Etah in Criminal Revision No. 46 of 2005 whereby the application under Section 125 Cr.P.C. was allowed and the petitioner was directed to pay Rs.900/- per month as maintenance to Smt. Anisha Devi, wife of the petitioner, from the date of application that is 26.3.2002. Against which, the petitioner filed Criminal Revision No. 46 of 2005 which was dismissed. Hence this writ petition.
4- From perusal of the record, it transpires that Smt. Anisha Devi was married with Kripal Singh in the year 1998 and for demand of dowry he tortured his wife; hence she was living separately from her husband and filed an application under Section 125 Cr.P.C. for maintenance.
5- The petitioner filed written statement alleging that Smt. Anisha Devi is literate lady and earning money from sewing and knitting and her father has 20 Bighas land, she is able to maintain herself and getting Rs.500/- per month. She is living separately on her on will.
6- From the side of opposite party, Smt. Anisha Devi examined herself as A.P.W.1 and one witness Tota Ram as A.P.W.2 was also examined. The petitioner examined himself as O.P.W.1 and two witnesses Hari Singh as O.P.W.2 and O.P.W.3 Puttu Lal were also examined.
7- After hearing learned counsel for both the parties, the impugned order was passed and revision was dismissed. Both the courts below have recorded concurrent findings of fact and the view taken by both courts below are plausible view. Hence no interference is called for.
8- 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.2 went her parental house and did not return in spite of several attempts made by the petitioner and his family members.
9- Petitioner is a healthy person. He was unable to prove that her wife is able to maintain herself. This burden was not properly discharge by the petitioner in both the lower courts.
10- Considering that the petitioner is healthy person, 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 finding 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. 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."
13- Question is whether a prudent man can believe that facts shown in the application of opposite party no. 2 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 party no.2. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present petition is bereft of merit and is hereby dismissed.
19- Copy of this order be transmitted to the court concerned to proceed in accordance with law.
Order Date :- 12.9.2018 OP