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S. 125 CrPC – ‘Granting Interim Maintenance Is Similar To Giving First Aid; Prevents Wives & Children From Vagrancy: HP HC

 

While giving a fresh impetus to the legal rights of wives and children under Section 125 of CrPC, the Himachal Pradesh High Court has been very forthright in candidly acknowledging that granting interim maintenance under Chapter IX of CrPC is like giving first aid which prevents wives and children from various modes of vagrancy and its consequences. We shall discuss about it exhaustively in para 16 which forms the real backbone of this cogent, candid, composed, commendable and convincing judgment. In a vibrant and democratic country like India we definitely need such commendable provisions that ensures that women and children are not left to the streets to suffer to the hilt without having any legal remedy to seek! To top it all, we need such Judges also and such judgments also as we see in this case where the legal rights of women and children are backed to the hilt as is needed also in similar such cases!

To start with, this learned, laudable, landmark and latest judgment titled Subhash Chand vs Krishani Devi in Criminal Misc. Petition (Main) u/s 482 CrPC No. 582 of 2018 delivered as recently as on September 20, 2021 by a single Judge Bench of Himachal Pradesh High Court comprising of Justice Anoop Chitkara sets the ball rolling by first and foremost observing in para 1 that, “The petitioner’s wife had filed an application under Section 125 CrPC, seeking monthly maintenance from the petitioner-husband. In the application, she averred that they had solemnized marriage on 22.09.2000 at Bilaspur. At the time of the wedding, she was a widow with three children. On his persuasion, she agreed to marry him. In the beginning, her marital life was good, but later on, his attitude changed, which led to discord, and he even withdrew his financial support. He would spend money on liquor instead of giving it to her and her children.”

While exacerbating more to it which tantamounts to further rubbing salt on the wounds already inflicted, the Bench then puts forth in para 2 that, “Furthermore, he would abuse, assault, and beat the petitioner on trivial matters. Given such behavior and the absence of financial support, it became impossible for her to reside with him in his house. Consequently, she was forced to shift to the house of her first husband, where Subhash Chand neither paid visit nor gave any money. The wife also alleged that her second husband is a driver by profession and earns sufficient money.”

On the contrary, the Bench then brings out in para 3 that, “The husband filed a reply and took a specific stand that Krishani Devi has played fraud upon him by preparing false documents with the connivance of the Notary Public. He stated that although the marriage is claimed to be solemnized on 22.09.2000, the certificate was allegedly obtained on 23.07.2010. Subhash Chand also claimed that Krishani Devi, in connivance with the priest of temple Lord Shri Laxmi Narayan Ji, Bilaspur, prepared false documents and affidavit. He further stated that she is still drawing benefits, which is being given to widows, and, as such, her drawing such benefits would show that she never solemnized marriage with him.”

Be it noted, the Bench then points out in para 4 that, “Vide above captioned order dated 18.04.2018, learned JMFC, granted interim maintenance to the wife by observing as under:-

“An assiduous perusal of the contents of the application as well as reply reflects that applicant is legally wedded wife of the respondent and further the applicant has alleged that she has no source of income to maintain herself. Though respondent has disputed the factum of marriage whereas respondent has not denied this fact that the applicant is unable to maintain herself. The question that whether the marriage between the parties has been legally solemnized only will be decided when both parties to lis lead cogent and convincing evidence. At this stage applicant able to established prima-facie case in her favour. Since the applicant has prima facie established that fact of marriage, as such, the respondent who is able bodied person and having good earning capacity under the legal as well as moral obligation to maintain his legally wedded wife to protect her from becoming destitute and respondent can easily spare Rs.2000/- per month to provide interim maintenance to his legally wedded wife, who has no source of income. As such, the respondent is directed to pay Rs.2000/- per month as interim maintenance to the applicant from the date of this order. Application disposed of accordingly.””

As a corollary, the Bench then observes in para 5 that, “The husband challenged the said order by filing criminal revision in the Court of learned Sessions Judge, Bilaspur. Vide above captioned order, the learned Sessions Judge, did not find merits in the petition and dismissed the same.”

As we see, the Bench then divulges in para  that, “Challenging both the orders, the husband is now before this Court by filing the instant petition under Section 482 of CrPC.”

     ANALYSIS AND REASONING

Needless to say, it cannot be glossed over that the Bench then envisages in para 10 that, “S. 125 (1) (a) of CrPC provides a grant of maintenance to the wife, unable to maintain herself. Section 18 of the Hindu Adoptions and Maintenance Act, 1956, mandates a wife’s lifetime maintenance rights from her husband. During the proceeding’s pendency, the Proviso to S. 125 CrPC empowers the Magistrate to order monthly allowance for the interim maintenance and the expenses of such proceeding. The following provisions of S. 18(2) of the Hindu Adoptions and Maintenance Act, 1956 entitles a wife to live separately from her husband without forfeiting her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(g) if there is any other cause justifying her living separately.”

Furthermore, the Bench then enunciates in para 11 that, “In Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, Para 8, Constitutional Bench of Hon’ble Supreme Court held that Sir James- Fitz James Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which Section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences’.”

Adding more to it, the Bench then while citing the other relevant case law states in para 12 that, “In Ramesh Chander Kaushal v. Veena Kaushal, AIR 1978 SC 1807, Hon’ble Supreme Court holds, “[9]. 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 the selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts.””

Going ahead, the Bench then hastens to add in para 15 that, “In Mohd Ali alias Barket Ram v. Mt Sakina Begum alias Shakuntla, 26-5-1943, Lahore High Court observed, “[2]. There is ample authority for the proposition that Section 488 provides only a speedy remedy against starvation for a deserted wife or child, that it is only a summary procedure which does not cover entirely the same ground as the civil liability of a husband or father under his personal law to maintain his wife or child, and that when substantial issues of civil law are raised between the parties their remedy lies only in the civil Courts: In re Kandasami Chetty A.I.R. 1926 Mad. 346, M. Bulteel v. Emperor (37) 1937 M.W.N. 1127 and Chantan v. C. Mathu A.I.R. 1917 Mad. 276 inter alia.””

Most significantly, what comes as an icing on the cake and what forms the cornerstone of this learned judgment is then waxed eloquently, elegantly and effectively in para 16 wherein it is held that, “Granting interim maintenance is similar to giving first aid. Chapter IX of Code of Criminal Procedure, 1973, provides a quick remedy by a summary procedure to protect the applicant against starvation and tide over immediate difficulties by a deserted wife or children to secure some reasonable sum by way of maintenance. S. 125 (1) (a) of CrPC provides a grant of maintenance to the wife, unable to maintain herself. Proviso to S. 125 CrPC empowers the Magistrate to order monthly allowance for the interim maintenance and also the expenses of such proceeding during its pendency. The foundation of the measures of social Justice enacted by the Legislature lay beneath the sweep of Article 15 (3) of the Constitution of India. It fulfills the concept of a welfare State in a vibrant democracy by safeguarding wives and children and preventing them from the modes of vagrancy and its consequences. Given above, it would be appropriate for the Courts to direct the person against whom an application is made under S. 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application.”

What’s more, the Bench then makes it clear in para 17 that, “The contents of the wife’s application, which is supported by her affidavit, prima facie make out just grounds for the wife to live separately and that she could not sustain financially, making out a case for interim maintenance. Although the marriage has been challenged as never solemnized yet it is subject to proof. In the present petition, the Court is concerned with interim maintenance and nothing more, nothing beyond.”

For the sake of clarity, the Bench then also points out in para 18 that, “There is neither any illegality nor the maintenance beyond the petitioner’s means; as such, there are no merits in the present petition. Furthermore, if the Court concludes that Krishani Devi played fraud upon Subhash Chand, it would undoubtedly have consequences. Given above, the impugned orders are well reasoned and call for no interference.”

To be sure, the Bench then also further ruled in para 19 that, “In the facts and circumstances peculiar to this case, the petitioner fails to make out a case at this stage. However, this order shall not prohibit any of the parties to seek legal remedies under section 127 CrPC in accordance with law.”

Finally, the Bench then disposes of the petition by holding in para 20 that, “I express gratitude to Ms. Seema Azad Advocate, Ld. Legal Aid Counsel, for excellent assistance. Petition dismissed. Pending applications, if any, are also closed.”

In conclusion, the sum and substance of this brief, brilliant, bold and balanced judgment by a single Judge Bench of Justice Anoop Chitkara of Himachal Pradesh High Court is that a prima facie case is made out for the wife to live separately and that she could not sustain financially. So granting interim maintenance is similar to giving first aid as is postulated also in Section 125 of the CrPC. It is a no-brainer that this notable judgment will definitely go a long way in preventing wives and children from vagrancy as was pointed out also in this judgment most prominently in para 16 as discussed hereinabove.

Sanjeev Sirohi

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