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Aijaz Ahmad Lalri Vs. Smt. Shajehan Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1982CriLJ1022
AppellantAijaz Ahmad Lalri
RespondentSmt. Shajehan Begum and ors.
Cases ReferredManmohan Singh v. Smt. Mahindra Kaur
Excerpt:
.....the allegation made as condition precedent is not refuted nor repelled, the condition for allowing maintenance is satisfied. 5. the observation if considered in its context may rather indicate that even if it was not stated in the application, had it been so stated in the statement before the court, the condition would have been..........under section 125, cr.p.c. (annexures '2' and '1' respectively).2. it would appear that the opposite party no. 1, who is the wife of the applicant, moved an application seeking maintenance for herself as well as for the daughter, born to applicant and opposite party no. 1. a maintenance of rs. 50/- per month was allowed to opposite party no. 1 while a maintenance of rs. 30/- per month was allowed for opposite party no. 2.3. it is urged that in the application it was not alleged by the opposite party no, 1 that she is unable to maintain herself and that was fatal and the application could not have been entertained. i may at the very outset observe that this ground would apply only to opposite party no. 1 and not at all to opposite party no. 2.4. the provisions under section 125,.....
Judgment:
ORDER

M. Wahajuddin, J.

1. This is an application for quashing the orders dt. 9-8-1979 and 14-8-1980 of the Magistrate and the Additional Sessions Judge in revision respectively in a proceeding Under Section 125, Cr.P.C. (Annexures '2' and '1' respectively).

2. It would appear that the opposite party No. 1, who is the wife of the applicant, moved an application seeking maintenance for herself as well as for the daughter, born to applicant and opposite party No. 1. A maintenance of Rs. 50/- per month was allowed to opposite party No. 1 while a maintenance of Rs. 30/- per month was allowed for opposite party No. 2.

3. It is urged that in the application it was not alleged by the opposite party No, 1 that she is unable to maintain herself and that was fatal and the application could not have been entertained. I may at the very outset observe that this ground would apply only to opposite party No. 1 and not at all to opposite party No. 2.

4. The provisions Under Section 125, Cr.P.C. are based on a public policy, Dependants like wife and children are not to be rendered destitute and that is the object behind the enactment of such provisions. I was referred to the judgment of the Additional Sessions Judge in revision, in which it was observed that although in the application itself it was not specifically stated that the wife has no means to maintain herself, the matter did arise for consideration during the hearing as the present applicant took a stand that the wife has means to maintain herself and that was contested by the wife and evidence was led on the point. With the counter-affidavit, the copy of the application preferred Under Section 125, Cr.P.C. has also been annexed. In para. 4 of the application, it was expressly stated by the opposite party No. 1 that she was sent to her parents' place in Aprl 1973, and her father Sri Mahboob Ah is maintaining her since then. This by necessary implication amounted to an assertion that she has no independent means of living, but is being maintained by her father. The proceeding Under Section 125, Cr. P. d, may be akin to civil proceedings,' but one important distinction between the two cannot be overlooked, namely, the object behind the enactment of maintenance provisions in the Cr.P.C. The crux of the matter always is whether the party claiming maintenance has the means or not. The law of pleading in civil cases may be more strict, but it may not be so when the matter of public policy and its objective are involved. Apart from that, the powers Under Section 482, Cr.P.C. are exercised to secure the ends of justice and to prevent abuse of the process of any law and when the clear finding of fact is that the opposite parties have no means to maintain themselves, the Court will not exercise any such inherent powers in favour of the applicant on account of any defect in pleadings. Reliance was placed upon two cases by the learned Counsel for the applicant. The first case is of Munni Devi v. Om Pal (1980 All LJ 296). It has no doubt been mentioned in the pronouncement that the condition precedent for making an application Under Section 125, Cr, P. C, is that the wife is unable to maintain hereself, that observation was made in another context. What transpired was that the husband did not come forward. The aforesaid averment as Prevention of Black-marketing and condition precedent was there in the application and it was held that even if evidence is not led, when the allegation made as condition precedent is not refuted nor repelled, the condition for allowing maintenance is satisfied. The other pronouncement relied upon is the case of Manmohan Singh v. Smt. Mahindra Kaur (1976 Cri LJ 1664)(All). What has been laid down in that ruling is that maintenance cannot be allowed to every neglected wife. After, the enforcement of new Cr.P.C. such maintenance can be granted only to a wife who is unable to maintain hereself. In the body of the judgment the following observations were made:

It was not alleged... in her appication ... and it was also not stated in her statement...that she was unable to maintain herself.

5. The observation if considered in its context may rather indicate that even if it was not stated in the application, had it been so stated in the statement before the Court, the condition would have been satisfied. In that particular case, it was not so stated before the Court also. So far as the present case is concerned finding based on such evidence has been recorded by the Magis trate and has been upheld by the Court of revision and the matter stands final ly concluded. Once from the finding of fact so recorded, it appears that the wife has no means to maintain herself, in herent powers Under Section 482, Cr.P.C. would not be exercised in favour of the applicant. I may also observe that only bare subsistence al lowance has been allowed.

6. The application is, accordingly rejected. The order dt. 9-7-1981 is vacated.


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