Allahabad High Court
Zulfiqar Ali Siddiqui Alias Pappu vs State Of Up And 3 Others on 12 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 13049 of 2020 Applicant :- Zulfiqar Ali Siddiqui Alias Pappu Opposite Party :- State Of Up And 3 Others Counsel for Applicant :- Sanjay Mishra Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
This application u/s 482 Cr.P.C. has been filed for quashing the impugned order dated 13.09.2019 passed by learned Principal Judge, Family Court, Court No. 4, Aligarh in Case No.952 of 2016 (Smt. Shakila alias Shaheen and others Vs. Zulfiqar), under Section 125 Cr.P.C., whereby interim maintenance @ Rs.3000/- per month has been granted to opposite party no.2 and Rs.1000/- per month each to opposite party nos.2 & 3.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
It has been argued by learned Counsel for the applicant that the impugned order is against facts and law. It is submitted that the opposite party no.2 is not ready to reside with the applicant. Learned Counsel for the applicant submitted that the applicant has filed a case for restitution of conjugal rights, which was decreed exparte but despite that the opposite party no.2 is not complying with the said order. Similarly a case of custody of children was also decided in favour of the applicant but it has also not been complied with by opposite party no.2. Learned Counsel submitted that opposite party no.2 is living separately without any sufficient cause, thus, she is not entitled to maintenance. It was submitted that the averments of applicant were ignored by the Court below and the amount of maintenance is excessive and arbitrary. It was submitted that the opposite party nos.2, 3 & 4 are not entitled for any maintenance and the impugned order is liable to be set aside.
Learned AGA has submitted that impugned order has been passed after considering all relevant facts and after hearing both the parties and that there is no illegality or perversity in the impugned order.
Chapter IX of Code of Criminal Procedure deals with the order for maintenance of wives, children and parents. As per section 125 of Cr. P. C. if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children whether married or not, and his father or mother unable to maintain themselves, the Magistrate First Class upon proof of such refusal or neglect direct such person to make monthly allowances and to pay the same to such persons from time to time. It is well established that object of grant of maintenance is to afford a subsistence allowance to the wife who is not able to maintain herself. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Maintenance awarded to a wife is not a bounty and it is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. The provisions of maintenance of wives and children intend to serve a social purpose (see Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521]. In Nanak Chand v. Chandra Kishore Aggarwal & Ors [1969 (3) SCC 802], the Supreme Court, discussing Section 488 of the old Cr.P.C, held that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], the Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It was observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], the Hon'ble Apex Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held:
"...The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective... "
It is also well settled that court has power, on being prima facie satisfied, to pass interim order directing the person from whom the maintenance is claimed to pay a reasonable sum by way of interim maintenance to the applicant pending final disposal of the application. ( Savitri v. Govind Singh Rawat (1985) 4 SCC 337). Further, though Section 125 CrPC as originally enacted did not expressly empower the Magistrate to direct payment of interim maintenance, but by the Amendment Act 2011, power and jurisdiction to grant interim maintenance has been conferred to Magistrate.
Keeping the above mentioned position of law in mind, in the instant case it may be seen that it is not disputed that opposite party no.2 is legally wedded wife of applicant and that opposite party no.3 & 4 are their minor children. The opposite party no.2 has alleged in application under Section 125 Cr.P.C. that her father had already died and she is providing education to her two minor children but she has not provided any maintenance so far. It was also alleged that she was harassed on account of dowry and deserted by her husband and his family members. Though the allegations made by opposite party no.2 are denied by the applicant and it was alleged that she was residing separately from the applicant without any just and sufficient cause but at this stage matter cannot be examined meticulously, rather the averment of parties are taken into consideration. Perusal of record shows that Court has considered all relevant facts and granted interim maintenance. In view of averments of the parties, the amount of maintenance awarded by Court below, can also not be said excessive or arbitrary.
No illegality or any abuse of process of court could be shown in respect of impugned order. It is well settled that powers under section 482 Cr.P.C. have to be exercised to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Though jurisdiction of the High Court under Section 482 Cr.P.C. is very wide, it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised exdebito justitiae to do real and substantial justice. In proceeding under section 482, the High Court will not enter into any finding of facts. In the instant case considering all relevant aspects of the matter, it is quite apparent that no such exigency could be shown so as to warrant any interference in the impugned order by invoking inherent powers. The amount of maintenance granted to applicant nos. 2 and 3 can also not be said arbitrary or excessive.
Instant application u/s 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 12.10.2020 S.P.