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High Court Of Madhya Pradesh
K. L. SHRIVASTAVA
RAMESHWAR - Appellant
Versus
RAMIBAI - Respondents
CRI. PETN. 938 Of 1983
Decided On : 03/28/1986
MAINTENANCE - S. 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SUMMARY OF THE ACTS AND SECTIONS REFERRED AND DISCUSSED BY THE COURT - KEY LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION - LEGAL FRAMEWORK APPLIED BY THE COURT IN REACHING ITS DECISION.
Fact of the Case:
The petitioner, the husband, challenged the order of the lower courts granting maintenance to his wife under Section 125 of the Code of Criminal Procedure, 1973. The petitioner argued that the lower courts erred in their findings and that no reasons were given for granting maintenance from the date of the application.
Finding of the Court:
The court held that the lower courts did not err in their findings and that the impugned order was sustainable on the material on record. The court also held that the general rule is to order payment of maintenance from the date of the order and that deviation from the rule and making allowance payable from the date of the application without recording reasons for so doing introduces arbitrariness in the order.
Issues: 1. Whether the lower courts erred in their findings and in granting maintenance from the date of the application. 2. Whether the impugned order was sustainable on the material on record.
Ratio Decidendi: 1. The court held that the lower courts did not err in their findings and that the impugned order was sustainable on the material on record. The court noted that the non-applicant wife had stated in her application that she earns nothing and engages herself in work at hand, and that her father has four bighas of land and she engages herself in agricultural operations. The court also noted that the petitioner husband had not furnished reliable proof of his income. 2. The court held that the general rule is to order payment of maintenance from the date of the order and that deviation from the rule and making allowance payable from the date of the application without recording reasons for so doing introduces arbitrariness in the order. The court modified the impugned order to the extent that the maintenance allowance shall be payable from the date of the Magistrate's order.
Final Decision: The court partly allowed the petition under Section 482 of the Code of Criminal Procedure, 1973, and modified the impugned order to the extent that the maintenance allowance shall be payable from the date of the Magistrate's order.
( 1 ) THIS petition under S. 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is directed against the order dated 25-10-1983 passed by the Additional Sessions Judge, Ratlam Camp Jaora in Criminal Revision No. 8 of 1981 maintaining the order Dt. 28-9-1981 passed by the Judicial Magistrate First Class Jaora under S. 125 of the Code for making a monthly allowance for the non-applicant's maintenance in the sum of Rs. 150/ -.
( 2 ) THE non-applicant is the wife of the applicant. By his order Dt. 28-9-81 the learned Magistrate has ordered the applicant to make a monthly allowance of Rs. 150/- for the maintenance of the non-applicant. It has been made payable from 25-11-78 which is the date of application under S. 125 of the Code.
( 3 ) THE applicant has urged that on the material on record the learned lower courts have erred in arriving at the conclusions they did. It was also urged that no reasons have been assigned for granting maintenance from the date of the application. ( 4 ) THE only right a party has in revision is to bring its case before the Court and it has no right to demand adjudication on questions of fact or law or both. It is well settled that quantum of allowance made for, cannot be challenged in an application for revision which is not to be regarded as some sort of appeal.
( 5 ) THE main question to which the Court exercising revisional jurisdiction has to address itself is whether substantial justice has been done. It is only in exceptional cases when there is glaring defect in the procedure or there is manifest error on point of law and consequently there has been flagrant miscarriage of justice, that the revisional Court steps in to interfere. In this connection the decision in Thakur Das v. State of M. P. , AIR 1978 SC 1 is pertinent.
( 6 ) IN the instant case, it is no doubt true that the non-applicant did not specifically plead in her application that the applicant has contracted a second marriage or that he has sufficient means to provide maintenance as claimed by her. However, on the facts of the case this omission can have no fatal consequences.
( 7 ) AS pointed out in the decision in Ashfaque Mohd's case 1983 Jab LJ 55 proceedings contained in Chapter IX of the Code (Ss. 125 to 128) under the caption 'order for Maintenance of Wives, Children and Parents" may be described as quasi Criminal or quasi Civil. Therefore, an application is not to be strictly construed as a pleading in a civil litigation. The allegation of existence of sufficient means with the applicant is implicit in the prayer for order for grant of allowance by him. In the decision in Mohd. Inayatulla Khan's case (1985 MPWN 365) it has been held that for S. 125 (1) of the Code proof of the essential requirement by evidence would suffice. In the decision in Vijay Shankar's case (1984 MPWN 62) it has been pointed out that it is actually for the husband and not for the wife to furnish reliable proof of his income as the latter is not expected to know his exact income.
( 8 ) FURTHER the object of pleading is to avoid surprise to the opponent. In the instant case parties were alive to the aforesaid aspects of the matter and have led evidence. There is no question of surprise or prejudice.
( 9 ) ON a cumulative consideration of the evidence on record it does appear that the applicant has contracted a second marriage. Further it may be pointed out that the explanation below the second proviso to S. 125 (3) of the Code provides that if a husband keeps a mistress, it shall be construed as a just ground for his wife's refusal to live with him. The learned Addl. Sessions Judge, in revision ought not to have disturbed the finding of the learned Magistrate on the point of second marriage and the impugned order is sustainable on this ground too.
( 10 ) AS to her inability to maintain herself, in para 3 of the application under S. 125 of the Code the non-applicant has stated that she earns nothing and engages herself i
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