1984 Supreme(MP) 240

S. K. Seth, J.
Bhaggo Bai v. State of M. P.
C. R. No. 455 of 1982 (J); Decided on 6-4-1984.

Headnote:Criminal P. C., 1973 -- S. 125 -- provision under -- intends to protect a deserted wife or neglected child by speedy remedy -- application made after 10 or 15 years -- not maintainable.

        Applicant No. 1 Smt. Bhaggobai acting for herself and her minor son applicant No. 2 Munnalal made an application under section 125 Cr. P. C. in the court of Judicial Magistrate First Class, Jabalpur on 16-11-1979 praying that her husband non-applicant Parasram be ordered to pay, Rs. 200/- as monthly allowance for her maintenance and that of the minor son. The Judicial Magistrate vide his order dated 12-10-1981, passed in Criminal Case No. 127 of 1979 allowed the application partly and ordered the non-applicant to, pay to the two applicants monthly allowance of Rs. 75/- and Rs. 50/d`respectively for their maintenance with effect from the date of the application. However, on a revision having been filed by the non-applicant in the Court of Session, the Sessions Judge, Jabalpur vide his order dated 22-5-1982 passed in Crim. Revision No. 131 of 1981 set aside the order passed by the Judicial Magistrate and dismissed the application under section 125 Cr.P.C., made by the applicants. It is being aggrieved by it that the applicants have filed the present second revision in this Court.

        Held : Having heard the learned counsel for the parties and perused the record, this Court is of the opinion that in the facts and circumstances of the case the order of the Judicial Magistrate directing the non-applicants to pay maintenance to the applicants under section 125 Cr.P.C., was rightly set aside by the Sessions Judge in exercise of his revisional powers and that there is no case made out for this Court interfering with the order of the Sessions Judge in this second revision.

        The marriage between the applicant No. 1 and the non-applicant had taken place about thirty years prior to the making of the application under Sec. 125 Cr. P. C., by the applicants. It was established form the evidence produced in the case that the applicant No. 2 had been born to the applicant No. 1 about fourteen years prior the making of the application under Sec. 125 Cr. P. C., by the applicants and that at the time of his birth the applicant No. 1 had been Li"Ving with her parents in village Deorikala. It was also established from the evidence produced in the case that the question relating to the legitimacy of the child had immediately become a bone of contention between the husband and the wife with the result that after the birth of the child the applicant No. 1 had not returned to her marital home and continued to Li"Ve along with the child with her parents in village Deorikala. The case of the non-applicant was that on the question relating to the legitimacy of the child raised by him, there had been a caste Panchayat held in Village Deorikala on 8-11-1965, and that the said Panchayat had accepted chhod-chhulti between him and the applicant No. 1. In the said connection, he relied on document Ex. D-2 proved in the case. His further case was that it was in the abovesaid circumstances that he had thereafter kept another woman and was Li"Ving with her for the last several years. According to him, there was no neglect or refusal to maintain on his part and that the applicant No. 1 was maintaining herself and the minor son very well from the income of the dairy business which she did.

        It was not disputed by applicant No. 1 in her application under Sec. 125 Cr. P.C. that the non-applicant did nothing to maintain her and the applicant No. 2 for the last about twelve years. There was an implied admission that she managed to maintain herself and the applicant No. 2 on her own for the last about twelve years. There was absolutely no explanation given by her as to why suddenly after a long lapse of so many years there arose any emergency for her to make the present application under section 125 Cr. P. C., in fact, the casualness of her approach in the matter was evident from the fact that she had earlier also made an application under Section 125 Cr. P. C., in the year 1979 and the said application had to be dismissed by the Judicial Magistrate on account of default of appearance committed by her.

        This Court, in Thakurdin v. Mst. Ratania (Cr. Revn. No. 167 of 1981 decided on 17-10-1981) had an occasion to consider the scope of the remedy provided under section 125 Cr. P. C. It was pointed out by this Court that the remedy under the said section is intended to be a speedy remedy for the protection of deserted wife or a neglected child from starvation. The provisions of the said section do not cover entirely the same grounds as the civil liability of a husband or father under his personal law to maintain his wife or child. The function of the civil Courts when they are properly invoked is to decree that a man should pay his wife or child maintenance according to their necessities and circumstances. The two functions are quite distinct. The Magistrate has to deal with emergency while the civil Court deals with strict legal rights of the parties. The powers of the Magistrate under Sec. 125 are discretionary. He has to exercise his discretion judicially and reasonably. The section aims at prevention of vagrancy by compelling the husband who can and must support his wife. It was found by this Court in Thakurdins case (Supra) that the application made by the wife after about 10-15 years of maintaining herself separately did not disclose any emergency or any case for exercise of his discretionary powers by the Magistrate under Sec. 125 Cr. P. C. and that the application made by her was liable to be dismissed summarily on that ground alone. In the opinion of this Court, the same is the situation in the present case. Cr. R. No. 167 of 1981, D/- 17-10-1981 relied on. Revision dismissed.