Narrower Than It Looks: Why DV Act territorial Jurisdiction Is Tighter Than Section 125 CrPC"

 

A recurring battleground in matrimonial litigation is the courtroom itself — quite literally, which court has the power to hear the case. A recent appellate order arising out of a Protection of Women from Domestic Violence Act (PWDVA) proceeding throws sharp light on why the territorial jurisdiction clause under the DV Act is drafted narrower than its cousin provision for maintenance under Section 125 of the Code of Criminal Procedure (CrPC). Litigants, and even trial courts, often assume the two provisions operate identically. They do not, and the difference can determine whether an application survives a preliminary objection or collapses at the threshold.

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Supreme Court direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein

 Directions on overlapping jurisdictions

It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 730 OF 2020

RAJNESH  Vs  NEHA & Anr

Dated: November 4, 2020.

Citation: MANU/SC/0833/2020 : (2021) 2 SCC 324

Read full judgment here: Click here.

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Madhya Pradesh HC: Step father is not liable to maintain his step children

As per the said section, it reveals that the legislative stress is on his wife, his legitimate or illegitimate child or his father or mother. When the stress is on the word 'his', it obviously means that it would include only the person who procreates, begets or brings forth offspring. It will not include a child of another father or mother of another person.

10. In the present case, non-applicant No. 2 is the daughter of 1st marriage of non-applicant No. 1 and not of the applicant, therefore, the Family Court has erred in awarding the maintenance to non-applicant No. 2.

11. The Punjab and Haryana High Court in the case of Annu Bala (supra) in para 4 and 5 has held as under:-

"4. Perusal of the relevant provisions referred to above reveal that legislative stress is on his wife, his legitimate or illegitimate child or his father or mother. When the stress is on the word 'his', it obviously means that it would include only the person who procreates, begets or brings forth offspring. It will not include a child of another father or mother of another person. 

 IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Criminal Revision No. 704/2015

Decided On: 05.07.2018

Pradeep Jain Vs. Manjulata Jain Modi and Ors.

Hon'ble Judges/Coram:

Vandana Kasrekar, J.

Citation:MANU/MP/0248/2018.

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Supreme Court: The revisional court should apply liberal approach while considering the question of limitation in regard to the time barred criminal revision

The Supreme Court noted that the High Court should have exercised its discretion to condone the delay given the “facts and circumstances of the present case.” It found that the interests of justice required the matter to be decided on merits rather than disposed of on a technical ground. Consequently, the Court set aside the High Court’s order and remitted the revision petition for fresh consideration on its substantive merits.

Ratio: Hon’ble Supreme Court observed that criminal revision cannot be dismissed on technical ground like limitation otherwise if the order passed by Lower Court is illegal that illegality will perpetuate and survive if the power of revision is not exercise by the revisional court for technical reason like limitation. The revisional court should apply liberal approach while considering the question of limitation in regard to the time barred criminal revision.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 558 and 559 of 2000

Decided On: 21.07.2000

Shilpa and Ors. Vs. Madhukar and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik and U.C. Banerjee, JJ.

Citation: 2001 SUPREME 4 4892001 BOMCR SC SUPP 2 498,2001 (1) JIC 588 (SC),MANU/SC/3177/2000

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Supreme Court: Under which circumstances Wife, Separated From 1st Husband, Can Claim Maintenance U/S 125 of CRPC From 2nd Husband Though 1st Marriage is Not Legally Dissolved?

The present case does not concern a live-in relationship. The Family Court made a factual finding that Appellant No. 1 married the Respondent and that finding is not disputed by the Respondent. Instead, the Respondent seeks to defeat the right to maintenance by claiming that his marriage to Appellant No. 1 is void ab initio as her first marriage is still subsisting. Two other pertinent facts must be considered: firstly, it is not the case of the Respondent that the truth was concealed from him. In fact, the Family Court makes a specific finding that Respondent was fully aware of the first marriage of the Appellant No. 1. Therefore, Respondent knowingly entered into a marriage with Appellant No. 1 not once, but twice. Secondly, Appellant No. 1 places before this Court an MoU of separation with her first husband. While this is not a legal decree of divorce, it also emerges from this document and other evidence that the parties have dissolved their ties, they have been living separately and Appellant No. 1 is not deriving maintenance from her first husband. Therefore, barring the absence of a legal decree, Appellant No. 1 is de facto separated from her first husband and is not deriving any rights and entitlements as a consequence of that marriage. {Para 17}

18. In the opinion of this Court, when the social justice objective of maintenance Under Section 125 Code of Criminal Procedure is considered against the particular facts and circumstances of this case, we cannot, in good conscience, deny maintenance to Appellant No. 1. It is settled law that social welfare provisions must be subjected to an expansive and beneficial construction and this understanding has been extended to maintenance since Ramesh Chander (supra). An alternate interpretation would not only explicitly defeat the purpose of the provision by permitting vagrancy and destitution, but would also give legal sanction to the actions of the Respondent in knowingly entering into a marriage with Appellant No.1, availing its privileges but escaping its consequent duties and obligations. The only conceivable mischief that could arise in permitting a beneficial interpretation is that the Appellant No.1 could claim dual maintenance--however, that is not the case under the present facts. We are aware that this Court has previously denied maintenance in cases of subsisting marriages (See Yamunabai (supra) and Bakulabai (supra)). However, a plea of separation from the first marriage was not made in those cases and hence, they are factually distinguishable.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 515 of 2025.

Decided On: 30.01.2025

N. Usha Rani and Ors. Vs. Moodudula Srinivas

Hon'ble Judges/Coram:

B.V. Nagarathna and S.C. Sharma, JJ.

Author: S.C. Sharma, J.

Citation: MANU/SC/0142/2025.

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Supreme Court: Whether woman in live in relationship is entitled to get maintenance under S 125 of CRPC?

41. Most significantly, the Act gives a very wide interpretation to the term 'domestic relationship' as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of 'domestic relationship' under Section 2(f) of the Act.

42. Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act.

43. We are thus of the opinion that if the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. It seems to us that the same view is confirmed by Section 26 of the said Act of 2005.

44. We believe that in light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C. and accordingly, a broad interpretation of the same should be taken.

45. We, therefore, request the Hon'ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

46. We are of the opinion that a broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.

 IN THE SUPREME COURT OF INDIA

Decided On: 07.10.2010

Civil Appeal No. ... of 2010 (Arising out of SLP (C) No. 15071 of 2009)

Chanmuniya Vs. Virendra Kumar Singh Kushwaha and Ors.

Hon'ble Judges/Coram:

G.S. Singhvi and A.K. Ganguly, JJ.

Author: A.K. Ganguly, J.

Citation:  MANU / SC / 0807 / 2010

( 2011 ) 1 SCC 141

[ 2010 ] 12 SCR 223

( 2011 ) 2 SCC(Cri) 666

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Bombay HC: Whether the court can grant maintenance U/S 125 of CRPC to wife after her divorce if she fails to incorporate this fact by amending her application?

Since there was no dispute about divorce and it was a ground available for maintenance under Section 125 Explanation (b), the learned Magistrate could have considered these subsequent developments. Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code was dealt with by the Hon'ble Supreme Court in Rohtash Singh (supra) and recorded the finding in para 9 that on account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. {Para 7}

8. There is no dispute on the law that such a right of divorcee exists till she remarries. There is no such averment that the respondent/wife was remarried. In view of the facts of the case and admitted position, the Court is of the view that the rule of pleading would not strictly apply in such cases. Therefore, the subsequent development of divorce has been correctly considered by the learned Revisional Court. Though the respondent/wife failed to establish that she was refused and neglected to maintain, the subsequent facts of divorce gave her a new ground which may be considered during the pendency of the application and the learned Magistrate ought to have considered it. The learned Revisional Court has corrected the errors of law of the Magistrate. However, the learned Revisional Court erred in granting the maintenance from 21.11.2005. If the right of the wife was accrued under Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code after the divorce and she was not entitled to the maintenance on the ground available under Section 125(1), she would not be entitled to the maintenance from the date of the desertion or filing the petition. Except this error, the judgment and order of the learned Revisional Court is legal, proper and correct. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 250 of 2008

Decided On: 25.09.2024

Kishor Fulchand Pawar Vs. Nanda

Hon'ble Judges/Coram:

S.G. Mehare, J.

Citation:  MANU/MH/6101/2024,2024 SCC OnLine Bom 3115,2024:BHC-AUG:23068

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Whether Parents-in-law can claim for maintenance from their widowed daughter-in-law under Section 125 of CRPC?

This Court has considered the submission and the judgment in the case of Saroj W/o. Govind Mukkawar (supra). In the case of Saroj W/o. Govind Mukkawar (supra), the distinguishing factor was that the widow of the deceased son was appointed by the department, where the deceased was serving, on a compassionate ground, wherein she was required to give an undertaking that she will maintain the members of the family who were dependent on the deceased. In this case, there is nothing to indicate that the job secured by the petitioner is on a compassionate ground. Even by looking at the application, it is clear that deceased husband was working in MSRTC, whereas now the petitioner is appointed in health department of the State Government. Thus it is clear that the appointment is not on a compassionate ground. The submission that the petitioner would succeed the property of deceased need not be considered in the proceedings under Section 125 of Cr.P.C. The categories of persons entitle to claim maintenance are already mentioned in Clause (a) to (d) of Sub-Section 1 of Section 125. This Court has already held in Criminal Revision Application No. 139/2017 that maintenance under the said section can be claimed only by the persons falling in the category mentioned in the Section. {Para 8}

9. Thus considering this legal position and the facts of the case it is clear that the respondents are not entitled to receive maintenance from the petitioner on the counts firstly that they are not coming under the relation mentioned in Section 125. Secondly the appointment of the petitioner was not on a compassionate ground in place of her husband. Thirdly on the count that the respondent no. 2 has also received an amount of Rs. 1,88,000/- after the death of deceased son. The fact that the couple have a land and have their own house, is also not disputed. So even on facts this Court finds that no case is made out by the respondents to claim maintenance from the petitioner. In view of the above discussion, this Court finds that the continuance of the proceeding of Criminal M.A. No. 25/2019 pending in the Court of Learned Nyayadhikari Gram Nyayalaya, Jalkot, Dist. Latur would be an abuse of process law and therefore the same is quashed.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 1092 of 2022

Decided On: 12.04.2023

Shobha Vs. Kishanrao and Ors.

Hon'ble Judges/Coram:

Kishore C. Sant, J.

Citation:  MANU/MH/1469/2023.

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Whether the court can grant maintenance to wife under DV Act on the ground of neglect and refusal if she has failed to prove domestic violence?

However, the learned Additional Sessions Judge, Bhokar affirmed the finding of the learned Judicial Magistrate First Class for non-commission of domestic violence, but considered the case as if it is an application under Section 125 of the Criminal Procedure Code. He held that the present applicant refused and neglected to maintain the respondent/wife and granted her the maintenance.

9. The law is well settled that a person having remedies under the various Acts may exercise it independently. The Domestic Violence Act is a law in addition to and not in derogation of the provisions of any other law, for the time being in force. The wife may simultaneously claim the reliefs under Domestic Violence Act as well as under Section 125 of Criminal Procedure Code. The tests to prove the domestic violence and refusal and neglect to maintain are different. There were no provisions in the Domestic Violence Act to test the refusal and neglect to maintain. The concept of domestic violence is specific as provided in D.V. Act. It could not be compared with the concept of Section 125 of Criminal Procedure Code. She never pleaded that the applicant/husband refused and neglected her. It was not also the issue before the trial Court. Therefore, this Court is of the view that the subordinate appellate Court cannot travel beyond the pleading and the laws involved in the case. Considering the concept of refusal and neglect and granting the maintenance to wife in D.V. Act case is out of jurisdiction and exaggeration. The order of the learned Additional Sessions Judge, Bhokar is illegal, erroneous and improper and liable to be set aside. 

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 233 of 2018

Decided On: 16.03.2023

Sunil  Vs. Jayashri 

Hon'ble Judges/Coram:

S.G. Mehare, J.

Citation: MANU/MH/1633/2023.

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What is distinction between grant of maintenance to wife u/s. 18 of The Hindu Adoption and Maintenance Act, u/s. 25 of The Hindu Marriage Act and u/s. 125 of The Code of Criminal Procedure?

 Maintenance for a wife in India can be sought under various legal provisions, depending on the circumstances and the specific law applicable. The Hindu Adoption and Maintenance Act, the Hindu Marriage Act, and the Code of Criminal Procedure (CrPC) each provide a distinct framework for the grant of maintenance to a wife. Here's a distinction between these three provisions:

1. The Hindu Adoption and Maintenance Act, 1956 (Section 18):

• Applicability: This Act applies to Hindus, including Sikhs, Jains, and Buddhists, and is primarily concerned with maintenance obligations within the family.

• Eligibility: Section 18 of the Hindu Adoption and Maintenance Act primarily deals with the maintenance of a wife by her husband. A wife, who is unable to maintain herself, can seek maintenance from her husband under this provision.

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What are rights of illegitimate child to get maintenance under S 125 of CRPC?

 Here's an overview of the rights of an illegitimate child to claim maintenance under the CrPC:

• Maintenance under CrPC (Section 125): Section 125 of the CrPC provides for the maintenance of wives, children (including legitimate and illegitimate), and parents. It allows any child, whether legitimate or illegitimate, to claim maintenance from their parents if they are unable to maintain themselves.

• 
  

• Eligibility: To claim maintenance under Section 125 of the CrPC, an illegitimate child must establish that he is unable to maintain himself and that his parents have the means to provide support. The illegitimacy of the child does not affect his right to claim maintenance. He must prove that his or her parents have refused or neglected to maintain him or her.

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Supreme Court: Divorced Muslim woman is entitled to get maintenance from her husband U/S 125 of CRPC as long as she does not remarry

Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. {Para 29}

30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2309 of 2009 

Decided On: 04.12.2009

Shabana Bano Vs. Imran Khan

Hon'ble Judges/Coram:

B. Sudershan Reddy and Deepak Verma, JJ.

Author: Deepak Verma, J.

Citation:2010 ALL MR (cri)278 , MANU/SC/1859/2009

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Notes on grant of maintenance as per S 125 of CRPC

 Chapter IX

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

125. Order for maintenance of wives, children and parents.—(1) If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 66[* * *], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

66. The words “not exceeding five hundred rupees in the whole” omitted by Act 50 of 2001, S. 2(i)(a) (w.e.f. 24-9-2001).

67[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

67. Ins. by Act 50 of 2001 (w.e.f. 24-9-2001).

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Whether muslim mother can claim maintenance from her children U/S 125 of CRPC?

 Section 4(1) of the Act contains the provision for maintenance to the divorced woman from her children but this does in fact not debar the divorced Muslim woman from invoking the provision of Section 125 of Cr. PC against her children. Even under the Act the application of the provisions of Section 125 of Cr. PC has been contemplated and the Act has not specifically made any ouster of the application of Section 125 Cr.PC Section 5 of the Act has imposed one condition for the application of sections 125 to 128 of Cr. P C against former husband of the divorced Muslim woman but it is conspicuously silent as regards their application against others. The framework of the Act itself and the ratio decided in the case of Danial Latifi (supra) which we have discussed above will show that the Act itself is not a substituted measure of Section 125 of Cr. P C but in addition thereto. This suggests that the proceeding under Section 125 of Cr.PC against children of the respondent mother is quite maintainable despite the pendency of the proceeding under sections 3, 4 of the Act against her husband.

 IN THE HIGH COURT OF CALCUTTA

C.R.R. No. 516 of 2001

Decided On: 10.12.2001

Makiur Rahaman Kha and Ors. Vs.  Mahila Bibi

Hon'ble Judges/Coram:

N.C. Sil, J.

Citation: MANU/WB/0390/2001.

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Whether Muslim children are entitled to claim maintenance U/S 125 of CRPC?

Clause (b) of Section 3(1) (supra) provides for grant of additional maintenance to her for the fosterage period of two years from the date of birth of the child of marriage for maintaining that child during the fosterage. Maintenance for the prescribed period referred to in Clause (b) of Section 3(1) is granted on the claim of the divorced mother on her own behalf for maintaining the infant/infants for a period of two years from the date of the birth of the child concerned who is/are living with her and presumably is aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infant/infants upto a period of two years. It has nothing to do with the right of the child/children to claim maintenance under Section 125, Cr. P.C. So long as the conditions for the grant of maintenance under Section 125, Cr. P.C. are satisfied, the rights of the minor children, unable to maintain themselves, are not affected by Section 3(I Mb) of the 1986 Act. Under Section 125, Cr. P.C. the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own. it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125. Cr. P.C. which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125, Cr. P.C. to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125, Cr. P.C., cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125, Cr. P.C. where they are minor and are unable to maintain themselves. Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125, Cr.P.C. is absolute and is not at all affected by Section 3(1)(b) of the 1986 Act. Indeed a Muslim father can claim custody of the children born through the divorced wife to fulfil his obligation to maintain them and if he succeeds, he need not suffer an order or direction under Section 125, Cr.P.C. but where such custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that he has divorced their mother. The right of the children to claim maintenance under Section 125, Cr.P.C. is separate, distinct and independent of the right of their divorcee mother to claim maintenance for herself for maintaining the infant children upto the age of 2 years from the date of birth of the concerned child under Section 3(1) of the Act. There is nothing in the 1986 Act which in any manner affects the application of the provisions of Sections 125-128 of the Cr.P.C, relating to grant of maintenance insofar as minor children of Muslim parents, unable to maintain I themselves, are concerned.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1197 of 1995

Decided On: 29.07.1997

Noor Saba Khatoon  Vs.  Mohd. Quasim

Hon'ble Judges/Coram:

Dr. A.S. Anand and K. Venkataswami, JJ.

Author: Dr. A.S. Anand, J.

Citation:  MANU/SC/0827/1997.

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Can the court issue an arrest warrant against the Non-applicant for recovery of the maintenance amount without issuing a distress warrant?

On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is

apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the  amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable

property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such

person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence.

It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance

of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant.

In view of aforesaid, this Court finds that the Principal Judge, Family Court, Kasganj has not followed the establish procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 30.11.2021 is hereby set aside.

ALLAHABAD HIGH COURT

Case :- APPLICATION U/S 482 No. - 4483 of 2022

Applicant :- Vipin Kumar

Opposite Party :- State of U.P. and Another

Coram: Hon'ble Ajit Singh,J.

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Whether court can review its own order passed in proceeding U/S 125 of CRPC?

  At the outset, this Court finds it pertinent to state that the embargo contained in Section 362 Cr.P.C., which prohibits the Court from altering or reviewing its judgement or final order disposing of the case, is inapplicable to an Order of maintenance passed under Section 125 Cr.P.C. The Saving Clause contained in Section 362 Cr.P.C. entails that the rigour of the provision is relaxed in two conditions, i.e. save as otherwise provided by (i) the Code of Criminal Procedure or (ii) any other law for the time being in force.

{Para 4}

5. In Sanjeev Kapoor v. Chandana Kapoor and Ors., (2020) 13 SCC 172, the Supreme Court had observed that the legislature was aware that there were situations where altering or reviewing of criminal court judgement were contemplated in the Code itself or any other law for the time being in force. Noting that Section 125 Cr.P.C. was a social justice legislation, the Supreme Court held that a closer look at Section 125 Cr.P.C. itself indicated that the Court after passing judgment or final order in the proceedings under Section 125 Cr.P.C. did not become functus officio, and that the Section itself contains express provisions wherein an Order passed under Section 125 Cr.P.C. could be cancelled or altered, and that this was noticeable from Sections 125(1), 125(5) and 127 Cr.P.C. Therefore, the legislative scheme as delineated by Sections 125 and 127 Cr.P.C. clearly enumerates circumstances and incidents provided in the Code where the Court passing a judgement or final order disposing of the case can alter or review the same. The embargo as contained in Section 362 is, thus, relaxed in proceedings under Section 125 Cr.P.C.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  IN THE MATTER OF:

  CRL. REV. P. 549/2018

 URVASHI AGGARWAL Vs  INDERPAUL AGGARWAL

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Whether family court can strike off defence for non payment of interim maintenance granted U/S 125 of CRPC?

  It is pertinent to note that in the above cases, the

Hon'ble Supreme Court has considered the question of interim

maintenance which was not provided under the statute at that

time. Referring to the object of the statute, it was held that the

object of the statute was to compel a man to perform the

moral obligation which he owed to Society in respect of his

wife and children to ensure that they are not driven to a life of

destitute. Section 125 confers a summary procedure for

maintenance. The Court held that       courts must     have an

implied power to give effect to all its orders. However, the

court concluded that such a power may not be admissible in

all cases.   In the case dealt with by the Supreme Court, it

was held that the very object of the statutory provision was to

provide maintenance to deserted wife and children. However,

the Supreme Court found that normally the procedure takes

long time for final determination. During the above period, the

wife and children cannot be forced to lead a life of penury.

Hence, the court held that the courts have implied power to

grant interim maintenance which was a power embedded in

Section 125 Cr.P.C. and will advance the object of the statue.

Evidently, an implied power can be assumed only          as an

ancillary or derivate power or a concomitant power derived

from a specific authority conferred by Statue. Implied power

should always be a derivate power arising from an existing

provision and should be in accordance with the purpose and

object of the statutory. The power cannot be extended to a

case which is a power independent by itself and not visualized

or contemplated by the statute. Striking off defence is a very

exceptional jurisdiction which takes away a very valuable right

of party and which result in very serious consequences on

the litigant. Such an extreme step is not contemplated by the

statute.  Time and again courts have held that striking of

pleadings has very serious impact on the rights of party.{See

Abdul Razak v. Mangesh Rajaram Wagle [(2010) 2 SCC

432)] and Jayasree's case (Supra}. Further there is effective

remedy available for enforcement of interim maintenance.

Hence, in a proceeding under Section 125 Cr.P.C., which is

governed by the provision of Criminal Procedure Code, power

to strike off defence does not exist, either by       specific

statutory provision or by necessary implication. It cannot be

assumed to exist as an      inherent or   implied power also.

Hence, the Family Court, in exercise of the power under

Section 125 of the Code of Criminal Procedure, cannot

exercise a jurisdiction to strike off the defence which is not

contemplated under the statute. Consequently, the decision in

Savitri's case (cited supra) is only to be held as the correct

law. However, that will not preclude courts from exercising

such implied power which are essential and concomitant with

the main powers and object of statute. In the light of the

above discussion, the decision of the Family Court to strike off

the defence and thereafter to pass an order of maintenance is

not legally sustainable and is liable to be set aside.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

              MR. JUSTICE SUNIL THOMAS

 8TH DAY OF SEPTEMBER 2016

                       RPFC.No. 177 of 2016

                      

    SAKEER HUSSAIN T.P, Vs NASEERA 

                

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