S.S. Sandhawalia, C.J.
1. Whether the technicalities of construing civil pleadings are equally attracted to an application for maintenance by a wife under Section 125 of the Criminal P.C. 1973 is the significant question which has necessitated this reference.
2. For the limited purpose of adjudicating on the aforesaid issue it suffices to mention that the respondent-wife had claimed maintenance at the rate of Rs. 200/- per mensem under Section 125 of the Code. Her application was dismissed by the Judicial Magistrate, Ist class, primarily on the ground that the parties were living separately by mutual consent. On a revision preferred by the respondent-wife the Sessions Judge, Bhatinda, reversed the judgment and granted maintenance at the rate of Rs. 50/- per mensem only. He also specifically rejected the plea on behalf of the husband that because the wife had not expressly pleaded in her application that she was unable to maintain herself, this by itself would be fatal to her claim. Both the spouses have come up against the aforesaid order of revision which was first placed before my learned brother Tewatia, J. Noticing the significance of the question whether in the petition under Section 125 it was incumbent on the wife to plead that she was unable to maintain herself and some conflict of judicial opinion in the other High Courts on the said point the matter was referred for an authoritative decision.
3. As a matter of legislative history it may be noticed that Section 125 of the Code is the successor provision of Section 488 of Cr. P.C. of 1898. In the new Code this section along with the connected ones has been recast and rationalised and now incorporated in the self-contained Chapter IX thereof. As the heading plainly indicates it provides in a consolidated form for the maintenance of wives, children and parents. The detailed provisions contained in the five sub-sections of Section 125 spell out both the right and the pre-requisites for an order of maintenance. The succeeding Section 126 lays down the procedure to be followed in these proceedings including the mandate that the evidence therein shall be recorded in the manner prescribed for a summon case. Section 127 then provides for any alteration in the maintenance allowance ordered earlier on a proof of change in the circumstances whilst the last Section 128 in the Chapter empowers any Magistrate to enforce an, order of maintenance at any place where the person against whom it is made, may be.
4. Now a larger conspectus of the four sections contained in Chapter IX would leave no manner of doubt that these provide a self-contained Code for the right, procedure, grant, alteration, and execution, of an order of maintenance. Sub-section (2) of Section 126 provides that evidence under this Chapter has to be taken in the presence of the person against whom an order is claimed and is to be recorded in the manner prescribed for summons-cases. This in itself is ail indication that the proceedings are criminal proceedings and not civil proceedings. Attention is also called to Sub-section (3) of Section 125 which provides for the execution of an order of maintenance by issuing a warrant for levying the amount due in the manner provided for levying fines and further empowers the Magistrate to sentence such a person for the whole or any part of each month's allowance remaining unpaid. The forum for the adjudication of an order of maintenance is prescribed to be that of a Court of magistrate first class. The power of revision against the same would lie with the Court of session under Section 399. Equally, the High Court's power of revision thereof would be derived from Section 401 of the Code.
5. Within this jurisdiction the matter seems to be further reinforced by the provisions of Rule 1 in Chapter 7-A of the Rules and Orders of the Punjab High Court Vol. III dealing with the maintenance cases. Therein it has been provided in terms as follows:-
Proceedings under Section 488 of Cr. P.C. are of a criminal character, and its provisions must be strictly followed. The section is not intended to provide for all possible cases in which a wife may be entitled to receive separate maintenance from her husband and it in no way overrides the Civil law or excludes the jurisdiction of the civil Courts....
6. Reference inevitably must be made to Nand Lal Misra v. Kanhaiya Lal Misra : 1960CriLJ1246 , wherein a solitary passing observation was made that as the proceedings were of a civil nature, the Code did not contemplate any preliminary enquiry. In this case their Lordships were adjudicating 6n the narrow question whether under Section 488(6) of the old Code the Magistrate could hold a preliminary enquiry as to the paternity of the child claiming maintenance before issuing notice to the alleged putative father. It was in this context that their Lordships whilst holding that the provisions of Chapter XXXVI were a self-contained Code nevertheless drew the distinction that the proceedings were not pristinely criminal in the sense of a trial of an accused person on a charge. This, however, would indeed be a far cry from holding that these proceedings become inherently civil proceedings or further that the relevant provisions of the Civil P.C. or the niceties of construing pleadings thereunder would be attracted to this jurisdiction. It is true that the respondent in these proceedings is not an accused person facing trial, and consequent conviction and sentence, but that by itself does not take away from the essential character of the criminal nature of these proceedings for the reasons recorded earlier. Though the matter appears to be plain on principle and on the language of the relevant provisions, there is high authority for holding that these proceedings are in essence criminal. In Smt. Harbhajan Kaur v. Major Sant Singh : AIR1969Delhi298 , Dua C.J. after fully considering the observations in Nand Lal's case 1960 Cri LJ 1246 (SC) held as under (at Pp. 1244, 45) :-
I have little hesitation in holding that proceedings under Section 488, Cr. P.C. do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression 'criminal proceedings' in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrates initiated under Chapter XXXVI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to' a limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.
6-A. It would, thus seem manifest both on precedent and principle that theproceedings under Chap. IX specifically contained in the Criminal P.C. are, onthe face of it, criminal in nature.
7. Now once it is held as above, it would necessarily follow that the niceties of construing formal civil pleadings would not be attracted to an application under Section 125 of the Code. Even assuming that a written application may be necessary thereunder, the said section does not prescribe its contents or any formal mode of presentation, plainly enough it has not to be verified as a formal civil pleading. Consequently, neither the Civil P.C. nor the principles thereunder can in any way be attracted nor the strict rules of civil law that evidence beyond pleadings should be ignored can come into play. This view seems to be sound on principle and is equally buttressed by authority. In Norbet Kispatta v. Mst. Tersa Kerketa 1971 Cri LJ 1496 (Orissa) while construing the analogous provisions of Section 488 of the old Code it was observed as follows (Para 2):-
But all the same the proceedings under the said Chapter are not civil proceedings so as to attract the provisions of the Civil P.C. as the said proceedings are wholly governed by the provisions of the Cr. P.C. That being so, the provisions of Orders VI, VII and VIII, Civil P.C. relating to pleadings in a civil suit, do not apply to a petition under Section 488 Cr. P.C.
7-A. Again reference to Section 125 makes it plain that the cornerstone of the right is the neglect or refusal of a person having sufficient means to maintain his wife or child or parent, as the case may be. This is, indeed, well-settled and it is not necessary to elaborate the same in view of the recent reiteration by the final Court itself in Bai Tahira v. Ali Hussain Fissalli Chothia : 1979CriLJ151 in the following words (Para 8):-
Section 125 requires, as a sine qua non for its application, neglect by husband or father. The Magistrate's order proceeds on neglect to maintain.
Therefore, once such neglect or refusal has been established before the Magistrate, he is empowered to make an order for monthly allowance for maintenance. The quantum of such an allowance is, however, a subsidiary issue to be based upon the status and the' means of the parties. On larger principle, it appears to me that an application under Section 125, Cr. P.C. has implicit in itself the essential ingredient that the claimant is unable to maintain herself. This inability or absence of means is a negative incident and usually, if not inflexibly, the burden of proving the negative is not to be rested on a party. Once the claimant establishes neglect or refusal which is the foundation-stone of the claim, it is for the respondent to show positively that she has ample means to maintain herself.
8. Lastly, it must be borne in mind that the provisions of Chapter IX of the Code have a larger social purpose behind them. They are intended to provide immediatesuccors to destitute wives, children and parents. It is apt that such beneficent legislation should not be narrowly construed so as to defeat its purpose on mere technicalities. This aspect has been equally highlighted by Bai Tahira's case 1979 Cri LJ 151 (SC) (supra) by the following observations (Para l):-
In this appeal, by special leave, we are called upon to interpret a benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees, namely, Section 125, Cr. P.C. Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Article 15(3) of the Constitution must belight the meaning of the Section. The Consitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. So, Section 125 and sister clauses must receive a compassionate expansion of sense that the words used permit.
And, again (Para 8):-
In this generous jurisdiction, a broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof.
9. Adverting now to the precedent directly governing the point it would appear that the weight of authority is tilted heavily in favour of the view I am inclined to take. In a recent Division Bench judgment of the Karnataka High Court in Smt. Malan v. Baburao Yeshwant Jadhav, 1981 Cri LJ 184, all discordant notes have been set at rest by the following authoritative enunciation (at p. 188):-
If that is so, the strict rules of pleadings applicable to the pleadings in a civil suit cannot be applied to a petition under Section 125 of the new Code. Hence, merely because the wife has not averred in her petition that she is unable to maintain herself, her petition cannot be dismissed. It is for both the parties to adduce evidence on that point and it is for the Court to decide whether the wife is able or unable to maintain herself.
The Division Bench expressly overruled the contrary Single Bench view both in Smt Zubedabai v. Abdul Khader 1978 Gri LJ 1555 (Kant) and in Smt. Haunsabai v. Balkrishna Krishna Badigar, 1981 Cri LJ 110 (Kant).
10. A contrary view, however has undoubtedly been expressed by a learned single Judge of the Allahabad High Court in Bishambhar Dass v. Smt. Anguri 1978 Cri LJ 385. A perusal of the judgment, however, reveals that the matter was not adequately canvassed and neither principle nor precedent has been cited for what appears to me as an overly strict view. The issue seems to have been treated as one of first impression and with the greatest deference I would record a dissent therefrom. It calls for notice that opinion does not appear to be uniform in the Allahabad High Court as well, because a learned single Judge of the said High Court in Abdul Salim v. Smt. Najima Begum, 1980 Cri LJ 232 has upheld the order of maintenance, even though in the application under Section 125 of the Code it was not even remotely pleaded that the wife was unable to maintain herself.
To conclude, the answer to the question posed at the very outset is rendered in the negative and it is held that the technicalities of construing civil pleadings are not attracted to an application under Section 125 of the Code. Consequently, it is further held that in such an application, the absence of an express pleading that the claimant is unable to maintain herself or himself is in no way fatal to the claim.
11. The meaningful legal question having been settled as above, both the criminal revision petitions would now go back before the Single Bench, for a decision on merits, in accordance therewith.
D.S. Tewatia, J.