Allahabad High Court
Jayant Yadav vs State Of U.P. And Another on 21 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. - 12662 of 2020 Applicant :- Jayant Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bharat Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
This application has been preferred by applicant for quashing the impugned order dated 22.04.2019 passed by the learned Principal Judge, Family Court, Bulandshahar in maintenance case no. 103 of 2018 (Smt. Shuchi Yadav Vs. Jayant Yadav) under Section 125 Cr.P.C., whereby applicant was directed to pay Rs.4,000/- per month as maintenance to his wife/ opposite party no.2.
It has been argued by learned counsel for applicant that impugned order is against facts and law and thus, liable to be set aside. It was submitted that the opposite party no.2 is a highly educated lady and B.Tech degree holder and that from year 2010 to 2014, she has worked as software developer and she is capable of earning and maintaining herself and thus, she is not entitled for any maintenance. Learned counsel submitted that impugned order has been passed ex-parte and that no notice or summon was served upon the applicant and thus, he was not provided any opportunity of hearing before passing the impugned order. However, when the applicant came to know about the impugned order, he has paid Rs. 12,000/- in compliance of the impugned order. Learned counsel submitted that the court below has overlooked the material available on record and that the impugned order has been passed in a mechanical manner and that the maintenance awarded by the court below is highly excessive and arbitrary.
Learned AGA has opposed the application and submitted that there is no illegality or error of jurisdiction in the impugned order.
Heard learned counsel for applicant, learned AGA for State and perused the record.
Chapter IX of Cr.P.C 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 court 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 but 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 and provide a summary remedy and are applicable to all persons belonging to any religion. These provisions have no relationship with the personal law of the parties.
In case of Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], it was observed that 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], it was 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.
Thus, it is clear Section 125 of the Cr.P.C. is an ameliorating provision and is designed as a measure of social justice which is specially meant to protect women and children. It is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself. In fact maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him and a moral as well legal obligation is cast upon the husband to maintain his wife and minor children.
Keeping the above mentioned position of law in mind, in the instant case it may be seen that it is not disputed that the opposite party no. 2 is legally wedded wife of applicant. In her application under section 125 CrPC, she has inter-alia alleged that her marriage with applicant was solemnized in year 2014 but after marriage, applicant and his family members have harassed her for dowry and they used to demand cash of Rs 5,00,000/ from her. It was alleged that applicant used to pressurize her to establish physical relation against order of nature. On 20.07.2016, she was turned out of matrimonial home and since then she is residing with her parents and that she has no source of income to maintain herself, whereas the applicant is working as an Auditor in well known company Pepsy and gets Rs. 50,000/ per month from there and that he has about 100 bighas agriculture land and earning Rs 25,00,000/- per annum from that land.
In support of her case, the opposite party no.2 has been examined PW-1 and her father Kailash Chand Yadav has been examined as PW-2. It been observed by the court below that applicant did not appear and contest the proceedings despite service of notice upon him and thus, proceedings were conducted ex-party. The court below has considered entire facts and evidence of opposite party no. 2 and rendered findings that she has sufficient and just cause to live separately from her husband and that she has no source of income to maintain herself. It was also held that applicant has neglected her maintenance and that she has not been provided any maintenance. As the applicant did not appear before the court below to contest the case, there were no reasons to disbelieve the version of opposite party no. 2. So far as this contention is concerned, that the opposite party no.2 is a highly educated lady and that earlier she has worked as software developer and thus, she is capable of earning, it cannot be ground deprive her from claiming maintenance from her husband. Merely she is capable of earning it is no ground to reject a claim under section 125 Cr.P.C., unless it is shown that she is working or earning or that she has means to maintain herself.
So far the contention, that the impugned order has been passed ex-parte and that no notice or summon was served upon the applicant, is concerned, the applicant is free to invoke provisions of section 126(2) Cr.P.C, for setting aside the impugned order, but it is no ground to quash the impugned order on merits of the matter. Considering entire facts of the matter it cannot be said that impugned order is against facts or law. The amount of interim maintenance awarded by the court below can also not be said excessive or arbitrary.
It is well settled that The inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal case. Such powers have 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 for the administration of which alone, courts exist. Ordinarily in a proceeding under section 482, the High Court will not enter into any finding of facts. In the instant case in view of the aforesaid facts and circumstances of the case, no such exigency could be shown so as warrant any interference in the impugned order in exercise of powers under section 482 Cr.P.C.
Thus, prayer for quashing the impugned order is refused.
However, it is provided that in case the applicant moves an application under section 126(2) Cr.P.C. against the ex-parte judgment and order dated 22.04.2019 in accordance with law, within a period of one month from today, his application shall be decided by the court below expeditiously in accordance with law and that the observations of this court made in this order would have no bearing on the court below while considering application under section 126(2) Cr.P.C. If case for recalling the impugned ex-parte order is made, the court below could pass order accordingly without being influenced by any observations of this Court.
With aforesaid observations, the instant application is disposed off finally.
Order Date :- 21.10.2020 Mohit