IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH THURSDAY THE SEVENTEENTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION NO.7835 OF 2012
Between:
Veerla Rama Mohanarao … Petitioner/Respondent V/s.
The State of Andhra Pradesh Represented by Public Prosecutor High Court of Andhra Pradesh Hyderabad & Ors. … Respondents/Petitioners Counsel for Petitioner : Sri GL. Nageswara Rao Counsel for Respondents : Public Prosecutor The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL PETITION NO.7835 OF 2012
O R D E R :
This Criminal Petition is filed to quash Proceedings in MC.No. 1 of 2012 on the file of Additional Judicial Magistrate of First Class, Gudiwada, Krishna district.
2. Heard both sides.
3. The petitioner herein is respondent in MC.No. 1 of 2012 which is filed by second respondent herein. It is the contention of petitioner, section 125 Cr.P.C. enables grant of maintenance to wife, children and parents and there is no obligation on the part of father- in-law or grand father under section 125 Cr.P.C. It is further contended that husband of second respondent had already taken Rs.1,25,000/- from the petitioner towards his share in the property and executed a relinquishment deed in the year 2002. It is submitted that husband of second respondent died in the year 2004. It is further contended that eight years after the death of her husband, second respondent filed MC.No.1 of 2012 and that the same is not maintainable and continuation of proceedings would amount to abuse of process of court.
4. I have perused the material papers filed along with this criminal petition.
5. There is no dispute with regard to relationship between the parties. According to the petition averments, after the death of husband of second respondent, she was harassed and that she was neglected to maintain. It is averred in the petition, being head of family, petitioner herein is liable to maintain her and her son. But he intentionally refused and neglected to pay maintenance.
6. It is necessary to extract the provisions of Section 125 Cr.P.C., which reads as hereunder:
CHAPTER-IX : ORDER FOR MAINTENANCE
OF
WIVES, CHILDREN AND
PARENTS.
Section 125: Order for maintenance of wives, children and parents: [1] If any person having sufficient means neglects or refuses to maintain ---
a) his wife, unable to maintain herself, or
b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
c) his legitimate or illegitimate child [not being a married daughter] who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
d) his father or mother, unable to maintain himself or herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, [the words “not exceeding five hundred rupees in the whole” omitted by Act 50 of 2001 section 2 (i) (a) [w.e.f. 24/9/2001], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct;
Provided that the Magistrate may order the father of a minor female child referred to in clause [b] to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means’ Provided further that the Magistrate may, during the pendency of the proceedings regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct;
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation :- For the purpose of this Chapter ---
[a] “minor” means a person who, under the provisions of the Indian Majority Act, 1875 [9 of 1875] is deemed not to have attained his majority;
[b] “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made;
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due;
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just grounds for so doing.
Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] 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.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
6. It is clear from the above provisions, a person is bound to maintain his wife, children [both legitimate and illegitimate] and parents. Admittedly, petitioner is not ‘husband’ of second respondent. He is also not ‘father’ of third respondent. Petitioner is ‘father-in-law’ of second respondent and ‘grand father’ of third respondent. In the capacity of father-in-law and grand father there is no obligation on petitioner to provide maintenance as per section 125 Cr.P.C. The second respondent may have a remedy under some other law to proceed against the petitioner but she cannot invoke section 125 Cr.P.C. for the relief of maintenance, since the claim is not covered under section 125 Cr.P.C. As rightly pointed out by advocate for petitioner, continuation of such proceedings would amount to abuse of process of court.
7. For the above reasons, this Criminal Petition is allowed and the proceedings in MC.No.1 of 2012 on the file of Additional Judicial Magistrate of First Class, Gudiwada, Krishna district are quashed.
JUSTICE S. RAVI KUMAR .
17/07/2014
I s L
HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL PETITION NO.7835 OF 2012 Circulation No. 21
Date: 17 /07/2014 Court Master : I s L Computer No. 43