Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 102 of 2003 Petitioner :- Smt. Pushpa Devi Respondent :- Additional Sessions Judge, Court No. 3, Pilibhit And Others Counsel for Petitioner :- Ved Byas Mishra Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1- None is present on behalf of the opposite party no. 2-Phool Chandra in spite of notice has been served personally.
2- Heard learned counsel for the petitioner and learned A.G.A. for the State and perused the record.
3- This criminal writ petition has been filed by the petitioner- Smt.Pushpa Devi against opposite party no.2-Phool Chandra against the order dated 25.7.2002 passed by Additional Sessions Judge, Court No. 3, Pilibhit in Criminal Revision No. 48 of 2001 filed by opposite party no.2-Phool Chandra, which was allowed and the order dated 6.6.2001 passed by the IIIrd Additional Chief Judicial Magistrate, Pilibhit under Section 125 Cr.P.C. filed by the petitioner was rejected whereby the opposite party no.2- Phool Chandra was directed to pay Rs.300/-per month as maintenance to the petitioner from 23.2.2000.
4- Learned counsel for the petitioner submitted that the marriage between the petitioner and Phool Chandra was admitted and Phool Chandra is a healthy person and the revision filed by Phool Chandra was allowed only on the ground that Smt. Pushpa Devi is living separately without any cogent reason i.e. illegal.
5- Petitioner examined as A.P.W.-1 herself and one witness A.P.W.-2 Bhagwan Das was also examined. From the side of opposite party, Phool Chandra examined himself as O.P.P.W.1 and one witness O.P.P.W.-2 Ram Prasad was examined.
6- After considering the material available on record and hearing the parties, the impugned orders were passed.
7- Learned A.G.A. supported the orders of the courts below.
8- Supreme Court in Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70, held that proceeding for maintenance to the wife and minor children falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. Again in Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7 has held that the court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 it has been ruled that Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children. In Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, from the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her faith in life reduces. Sometimes, she feels that she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.
10- According to Section 125(4) Cr.P.C. only on three grounds the maintenance can be refused:-
(i) She is living in adultery.
(ii) If without any sufficient reason she refuses to live with her husband.
(iii) If they are living separately on mutual consent.
11- The revisional court has refused to maintenance of the petitioner only on the ground that she is living separately.
12- In view of the aforesaid mentioned discussions, the writ petition is allowed. The impugned order dated 25.7.2002 passed by Additional Sessions Judge, Court No. 3, Pilibhit is set aside.
13- The matter is remanded back to the court concerned to consider and decide the case of the petitioner afresh on merit after adducing the evidence in support thereof and after giving opportunity of hearing to both the parties.
Order Date :- 24.8.2018 OP