ORDER
1. In this Writ Petition, the constitutional validity of sub-section (3) of S. 125 of the Criminal P.C. 1973, is called in question. The contention is that, the said sub-section is violative of the fundamental rights guaranteed by Articles 14 and 21 of the Constitution. I find no substance whatsoever in this contention. Section 125, in so far as it is relevant, reads as follows :-
“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, not exceeding five hundred rupees in the whole, 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.
Explanation : For the purposes of this Chapter :-
(a) “minor” means a person who, under the revisions of the Indian Majority Act (19 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 remarried.
(2) XX XX XXX
(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 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 ……….”.
2. The power to grant maintenance is to be exercised by a Magistrate of the First Class, i.e., a Judicial Magistrate. He shall order the maintenance to be paid only where he is satisfied that the wife, or minor child, or parent, the case may be, has been neglected or refused to be maintained by the person concerned, and he shall fix the amount of maintenance at such monthly rate not exceeding Rs. 500/- in the whole, as he thinks fit, which means that he shall have due regard the evidence adduced before him with respect to the means and needs of both the parties, and arrive at an amount. According to Explanation (b), ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband but has not remarried. Sub-section (3) only provides for implementation of the order passed under sub-section (1). It prescribes the mode in which an order of maintenance shall be executed.
3. The petitioner in this case does not challenge – and indeed he cannot challenge – the validity of sub-section (1) of Explanation (b); he only challenges the validity of sub-section (3), which merely provides for execution. The substantive provision is sub-section (1); sub-section (3) is merely procedural. On this ground alone the writ petition is liable to fail.
4. It is, however, contended by Sri K. N. Jwala, the learned counsel for the petitioner, that, according to Muslim law – the petitioner is a Muslim, as also his wife, the 2nd respondent – a divorced wife is not entitled to maintenance and that, S. 125 in so far as it entitles a divorced wife also to maintenance, is inconsistent with Muslim Personal Law and is, therefore, violative of the religious rights guaranteed by the Constitution. Obviously, the reference is to Article 25 to 30. But, the learned Counsel has been unable to pinpoint precisely the particular limb of any particular Article which can be said to have been violated by the said provision. Indeed, such an argument is not at all open to the petitioner in view of the decision of the Supreme Court in Nanak Chand v. Chandra Kishore, . It was contended there that, S. 488 of the Code of Criminal Procedure, 1898 (which corresponds to present Section 125) stands impliedly repealed by S. 4 of the Hindu Adoptions and Maintenance Act, 1956, in so far as it is applicable to Hindus. Reliance was placed upon S. 4 of the Hindu Adoptions and Maintenance Act, which gives an overriding effect to that Act. This contention was rejected by the Supreme Court, holding that there is no inconsistency between both the enactments and that, both can stand together. The Court observed :
“The Maintenance Act is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, in so far as it dealt with the maintenance of children was in any way inconsistent with S. 488, Criminal Procedure Code. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties ……..”
The Supreme Court approved the decisions of the Allahabad, Calcutta and Patna High Courts, taking the same view. In this view of the matter, the very argument that there is some inconsistency between Muslim law and S. 125, Cr.P.C. cannot be entertained, nor can any limb of S. 125 be struck down on the ground of such inconsistency. It may also be noted that, the right of a divorced wife to maintenance is only till such period as she remarries. This has been provided to prevent vagrancy and to see that unprovided persons are properly maintained by the persons responsible therefor, which is the main object underlying S. 125. The view taken by the Supreme Court is also echoed by several other High Courts, both before and after the said decision, but I think it unnecessary to refer to them in view of the decision of the Supreme Court.
5. The Writ Petition, accordingly, fails and is dismissed.
6. Petition dismissed.
