What is difference in scope of enquiry in criminal revision and application for setting aside exparte order passed U/S 125 of CRPC application?

Before disposing of this revision, I am bound, to answer the contention raised by respondents counsel that the petitioner ought to have chosen the remedy available to him under proviso to Section 126(2) of the Code of Criminal Procedure, without approaching this Court for exercise of revisional powers. This Court had occasion to consider this very question in Muthusamy v. Kalaarasi, 1989 Mad LW (Crl) 168. The observations made therein read as hereunder :-

"It is true that the petitioner could have as well filed a petition in the trial Court itself to have the ex parte order set aside. It is quite so. Such an application could have been filed. The law permits three month's time for the petitioner to have the ex parte order set aside by the trial Magistrate. However, the revision has been filed in this Court within such period of limitation of three months and obviously this revision has not been filed to evade the limitation bar contained in Section 126(2), Crl.P.C. It has not been brought to my notice that a revision is barred against an ex parte order." {Para 7}

8. A similar view is taken by another learned single judge of this Court in A. Simon v. Venkattamal, 1991 Mad LW (Crl) 113. Learned Judge stated as follows :-

"This revision was filed against an ex parte order of maintenance in favour of the petitioner's aged mother, viz. respondent herein. It was contended for the petitioner that though proviso (2) of Section 126 of the Criminal Procedure Code enables the petitioner to file an application before the Magistrate and have the ex parte order set aside, it was open to the petitioner to forego that remedy and file a revision under section 397, Cr.P.C., wherein also, he could challenge the correctness of the order, in so far as it related to setting him ex parte.

Held :- The existence of a remedy under proviso (2) Section 126 Criminal Procedure Code to have the ex parte order set aside by showing good cause, does not preclude the respondent from challenging in a revision under section 397 of the Code, the legality of the order setting him ex parte. The scope of scrutiny in the two proceedings however, would be different. While in an application under Section 126(2) proviso the Court is to find out, on the oral and documentary evidence adduced for the purpose, whether the respondent has shown good cause for his inability to receive service or his failure to attend Court, in a revision under section 397, the Court's scrutiny is limited to the regularity of the proceeding and the correctness, legality and propriety of the order and the respondent cannot offer to show good cause, which he could do only under section 126."

 IN THE HIGH COURT OF MADRAS

Crl. R.C. No. 269 of 1992

Decided On: 27.11.1995

Loganathan Vs. Dhanalakshmi and Ors.

Hon'ble Judges/Coram:

T.S. Arunachalam, J.

Citation: 1996 Cri L J 1896 (Mad),MANU/TN/0149/1995.

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What is procedure for execution of an order for maintenance U/S 125 of CRPC?

 As per the former part of Section 125 (3) regarding the recovery of maintenance, the recovery of maintenance or interim maintenance may be made by applying the procedure of issuing warrant for levying the amount due in the manner provided for levying fines i.e. by way of applying provisions of section 421 of Code of Criminal Procedure i.e. by way of:

1. Issuing a warrant of attachment and sale of any movable property belonging to defaulter.

2. Issuing a warrant to the Collector of the district for realizing the amount from movable or immoveable property of the defaulter;
   And as per the later part of Sec. 125(3) in case of maintenance or interim maintenance remaining unpaid after the execution of the warrant the Magistrate may -
   Sentence such person, for the whole or any part of each month's allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, to one month or until payment if sooner made.

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Can the court accept the applicant's affidavit regarding their residential proof in proceeding U/S 125 of CRPC?

 To summarize : Chapter XXXVI of the Code

of Criminal Procedure providing for maintenance of wives

and children intends to serve a social purpose. Section

488 prescribes alternative forums to enable a deserted

wife or a helpless child, legitimate or illegitimate, to get

urgent relief. Proceedings under the section can be taken

against the husband or the father, as the case may be, in

a place where he resides, permanently or temporarily, or

where he last resided in any district in India or where he

happens to be at the time the proceedings are initiated.

10. On perusal of the aforementioned finding

recorded by Hon’ble Supreme Court, since Section 125 of

Cr.P.C is a social measure providing immediate relief to

the destitute wife and children, prima-facie, accepting the

duly sworn affidavit by aggrieved parties (wife and

children) that they are residing away from the matrimonial

home and the address shown in the affidavit is to be

accepted. Indeed the Family Court ought to have accepted

the address provided in the petition supported by an

affidavit by the petitioners and should have issued notice

to the respondent. Raising objection with regard to

residential proof of the petitioners at that juncture itself

would defeat the very purpose of scope of Section 125 of

Cr.P.C. Undisputably, the affidavit is supported by an

application and the petition is preferred by the wife and

children seeking maintenance. It is also recorded by the

deponent in the said affidavit that they are residing

separately from the husband/father and therefore, I am of

the view that raising objection at the initial stage, directing

the petitioners to provide a residential address with regard

to the jurisdiction aspect, would defeat the entire

legislative intention of Section 125 of Cr.P.C. May be, the

jurisdictional aspect is required with regard to the

competency of the Court, however, such a requirement

may be an exception to the provisions under Section 125

of Cr.P.C. for the reasons mentioned above. If the

applicant/petitioner filed petition along with an affidavit

disclosing their residential address in the duly sworn

affidavit, that itself is sufficient to continue the

proceedings to provide immediate relief to the destitute

wife/children.  {Para 12}

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

SANGEETA W/O BAPU LAMANI Vs BAPU S/O SOMAPPA LAMANI

BEFORE

THE HON'BLE MR JUSTICE E.S.INDIRESH

DATED THIS THE 07TH DAY OF JULY, 2022

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What is the difference between rights of major unmarried daughter to claim maintenance from her father U/S 125 of CRPC and U/S 20 (3) of Hindu Adoptions and Maintenance Act?

Section 20 of the Hindu

Adoptions and Maintenance Act, 1956, needs to be

noted, which provides for maintenance of children and

aged parents, which is as follows:-

“20. Maintenance of children and aged

parents.— (1) Subject to the provisions of

this section a Hindu is bound, during his

or her lifetime, to maintain his or her

legitimate or illegitimate children and

his or her aged or infirm parents.

(2) A legitimate or illegitimate child may

claim maintenance from his or her father

or mother so long as the child is a minor.

(3) The obligation of a person to maintain

his or her aged or infirm parent or a

daughter who is unmarried extends in so

far as the parent or the unmarried

daughter, as the case may be, is unable to

maintain himself or herself out of his or

her own earnings or other property.

Explanation.— In this section “parent”

includes a childless step-mother.”

12. The Act, 1956 was enacted to amend and codify the

law relating to adoptions and maintenance among

Hindus. A bare perusal of Section 125(1) Cr.P.C. as

well as Section 20 of Act, 1956 indicates that

whereas Section 125 Cr.P.C. limits the claim of

maintenance of a child until he or she attains

majority. By virtue of Section 125(1)(c), an

unmarried daughter even though she has attained

majority is entitled for maintenance, where such

unmarried daughter is by reason of any physical or

mental abnormality or injury is unable to maintain

itself. The Scheme under Section 125(1) Cr.P.C.,

thus, contemplate that claim of maintenance by a

daughter, who has attained majority is admissible

only when by reason of any physical or mental

abnormality or injury, she is unable to maintain

herself. 

 Section 20(3) of Hindu Adoptions and Maintenance

Act, 1956 is nothing but recognition of principles of

Hindu Law regarding maintenance of children and aged

parents. Section 20(3) now makes it statutory

obligation of a Hindu to maintain his or her

daughter, who is unmarried and is unable to maintain

herself out of her own earnings or other property.

Unmarried

daughter is clearly entitled for maintenance from her

father till she is married even though she has become

major, which is a statutory right recognised by

Section 20(3) and can be enforced by unmarried

daughter in accordance with law.

33. There may be a case where the Family Court has

jurisdiction to decide a case under Section 125

Cr.P.C. as well as the suit under Section 20 of Act,

1956, in such eventuality, Family Court can exercise

jurisdiction under both the Acts and in an

appropriate case can grant maintenance to unmarried

daughter even though she has become major enforcing

her right under Section 20 of Act, 1956 so as to

avoid multiplicity of proceedings as observed by this

Court in the case of Jagdish Jugtawat (supra).

However the Magistrate in exercise of powers under

Section 125 Cr.P.C. cannot pass such order.

 The maintenance as contemplated under Act, 1956

is a larger concept as compared to concept of

maintenance under Section 125 Cr.P.C. Section 3(b) of Hindu Adoptions and Maintenance Act while defining maintenance gives an inclusive definition including marriage expenses 

The purpose and object of Section 125 Cr.P.C. as

noted above is to provide immediate relief to

applicant in a summary proceedings, whereas right

under Section 20 read with Section 3(b) of Act, 1956

contains larger right, which needs determination by a

Civil Court, hence for the larger claims as enshrined

under Section 20, the proceedings need to be

initiated under Section 20 of the Act and the

legislature never contemplated to burden the

Magistrate while exercising jurisdiction under

Section 125 Cr.P.C. to determine the claims

contemplated by Act, 1956.

 We, thus, accept the submission of the learned

counsel for the appellant that as a preposition of

law, an unmarried Hindu daughter can claim

maintenance from her father till she is married

relying on Section 20(3) of the Act, 1956, provided

she pleads and proves that she is unable to maintain

herself, for enforcement of which right her

application/suit has to be under Section 20 of Act,

1956.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 615 o f 2020

ABHILASHA  Vs  PARKASH 

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Supreme Court: Major unmarried daughter not suffering from any physical or mental abnormality can not claim maintenance from her father U/S 125 of CRPC

1) By virtue of Section 125(1)(c), an

unmarried daughter even though she has attained

majority is entitled for maintenance, where such

unmarried daughter is by reason of any physical or

mental abnormality or injury is unable to maintain

itself. The Scheme under Section 125(1) Cr.P.C.,

thus, contemplate that claim of maintenance by a

daughter, who has attained majority is admissible

only when by reason of any physical or mental

abnormality or injury, she is unable to maintain

herself. 

2)  The purpose and object of Section 125 Cr.P.C. as

noted above is to provide immediate relief to

applicant in a summary proceedings, whereas right

under Section 20 read with Section 3(b) of Act, 1956

contains larger right, which needs determination by a

Civil Court, hence for the larger claims as enshrined

under Section 20, the proceedings need to be

initiated under Section 20 of the Act and the

legislature never contemplated to burden the

Magistrate while exercising jurisdiction under

Section 125 Cr.P.C. to determine the claims

contemplated by Act, 1956.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 615 o f 2020

ABHILASHA  Vs  PARKASH 

Author: ASHOK BHUSHAN,J.

Dated:September 15, 2020.

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Whether court can revive application for maintenance U/S 125 of CRPC disposed of due to compromise between the parties?

We have noticed the judgment of this Court in Mahua Biswas (Smt.) (supra) where this Court had activated the wife's claim of maintenance to put her at same position before parties compromised in proceeding Under Section 125 Code of Criminal Procedure. Although learned Counsel for the Appellant submits that the judgment of this Court in Mahua Biswa (Smt.) is not applicable, we do not agree with the submission. In the above case, order was passed by the Magistrate giving maintenance of token amount against which she moved to the High Court for revision where it was noticed that matrimonial case between the parties had stood compromised and one of the terms was that wife would go and live with her husband. The wife went to live with husband but later the spouse fell apart. Husband contended that the orders of maintenance could not be revived as there had arisen a fresh cause of action. The High Court had set aside the order of maintenance leaving the wife to approach again the Criminal Court for appropriate relief. This Court allowing the appeal had activated the wife's claim of maintenance and put her in the same position as before. The above judgment clearly indicates that this Court adopted the Course which avoided injustice to the wife.

31. We, thus, are of the considered opinion that the order passed in present case by Family Court reviving the maintenance application of the wife Under Section 125 Code of Criminal Procedure by setting aside order dated 06.05.2017 passed on settlement is not hit by the embargo contained in Section 362 Code of Criminal Procedure. The submission of learned senior Counsel for the Appellant that Section 362 Code of Criminal Procedure prohibit the Magistrate to pass the order dated 05.01.2019 cannot be accepted.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 286 of 2020 

Decided On: 19.02.2020

Sanjeev Kapoor  Vs.  Chandana Kapoor and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and R. Subhash Reddy, JJ.

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Whether family court can permit filing of affidavit of examination in chief in proceeding U/S 125 of CRPC?

The limited controversy to be addressed is whether it is open for the learned Family Court to accept the claimant's evidence by way of affidavit.

In view of the above, this Court finds no infirmity with the decision of the Family Court in accepting evidence by way of an affidavit; permitting the respondent to tender the same in her examination-in-chief; and providing an opportunity to the petitioner to cross-examine the respondent.

IN THE HIGH COURT OF DELHI

Crl. Rev. P. 523/2019 and Crl. M.A. 9437/2019

Decided On: 30.04.2020

 Ajay Gupta Vs.  Sonia Gupta

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

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Important Judgments on maintenance U/S 125 CRPC, S 24 of Hindu Marriage Act and DV Act

1)When second wife is entitled to get maintenance? 

https://www.lawweb.in/2013/12/husband-can-not-refuse-to-pay.html?m=0

2)Leading Supreme Court Judgment on grant of permanent alimony

https://www.lawweb.in/2019/07/leading-supreme-court-judgment-on-grant.html?m=0

3) When husband can claim maintenance from wife?

https://www.lawweb.in/2017/05/when-husband-can-claim-maintenance-from.html

4) Supreme Court: Amount awarded u/ S 125 of Cr.P.C. for maintenance was adjustable against amount awarded in matrimonial proceedings

https://www.lawweb.in/2014/04/amount-awarded-u-s-125-of-crpc-for.html

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Supreme Court: Subsequent applications U/S 125 CRPC for payment of maintenance amount is maintainable if first application was made within limitation

It is true that the amount of maintenance became due by virtue of the Magistrate's order passed on 20th January, 1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl. Misc. Petition No. 47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed I.A. 1 in Crl. Misc. Petition No. 47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125(3). Thus, I.A. 1 was filed even when Crl. Misc. Petition 47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl. Misc. Petition of 47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending although. The purpose of filing I.A. on 1st September, 1998 was only to mention the amount due upto date. The fact that the additional amount was specified in the I.A. does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent I.A. in 1998 was only to specify the exact amount which accrued due upto that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs. 5,365/- representing the arrears of eight months was mentioned therein does not curtail the scope of Crl. Misc. Petition filed in 1993 more so when no action was taken thereon and it remained pending.

8. We are, therefore, of the view that in the peculiar circumstances of the case, the bar under Section 125(3) cannot be applied and the High Court has erred in reversing the order of Sessions Judge. It must be borne in mind that Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife and daughter. It is unreasonable to insist on filing successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) is a continuing liability. For the above reasons, we set aside the impugned order of the High Court and restore the order passed by the Additional District Judge, Tumkur in Crl. R.P. No. 194 of 2000. The learned Magistrate shall take appropriate steps under Section 125(3) in case the arrears of maintenance is not paid within three months.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 673 of 2005 

Decided On: 06.05.2005

 Shantha   Vs.  B.G. Shivananjappa

Hon'ble Judges/Coram:

P. Venkatarama Reddi and A.K. Mathur, JJ.

Citation: 2005 (4) SCC 468,

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Supreme Court: Strict proof of Marriage is not required in proceeding U/S 125 of CRPC

 Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings Under Section 125 Code of Criminal Procedure, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit MANU/SC/0673/1999 : (1999) 7 SCC 675, this Court held that "the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence Under Section 494 Indian Penal Code. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application Under Section 125 does not really determine the rights and obligations of the parties as the Section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached." When the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance of wife Under Section 125 Code of Criminal Procedure

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2368-2369 of 2009

Decided On: 24.10.2018

Kamala Vs.  M.R. Mohan Kumar

Hon'ble Judges/Coram:

R. Banumathi and Indira Banerjee, JJ.

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Supreme Court: Marriage performed during pendency of appeal is not void if appeal is filed after expiry of period of limitation

The short question in this appeal is, whether

the Appellant could have been denied maintenance under Section

125 of the Cr.P.C. on the ground that her marriage with the

Respondent No.1 was a nullity, just because the marriage had taken

place while an appeal filed by the Appellant against a decree of

dissolution of marriage with her first husband was still pending. In

other words, is a second marriage performed during the pendency of

an appeal from a decree of divorce a nullity, even though there were

no stay of operation of the decree.

 In any case, the bar of Section 15 of Hindu marriage Act is not at all attracted in the

facts and circumstances of this case, where the appeal from the

decree of divorce had been filed almost a year after expiry of the

period of limitation for filing an appeal. Section 15 permits a

marriage after dissolution of a marriage if there is no right of appeal

against the decree, or even if there is such a right to appeal, the time

of appealing has expired without an appeal having been presented, or

the appeal has been presented but has been dismissed. In this case

no appeal had been presented with the period prescribed by

limitation.

35. The bar, if any, under Section 15 of the Hindu Marriage Act

applies only if there is an appeal filed within the period of limitation,

and not afterwards upon condonation of delay in filing an appeal

unless of course, the decree of divorce is stayed or there is an interim

order of Court, restraining the parties or any of them from remarrying

during the pendency of the appeal.

36. As observed above, the appeal was infructuous for all practical

purposes, from the inception, since the Appellant’s ex-husband had

lawfully remarried after expiry of the period of limitation for filing an

appeal, there being no appeal till then.

37. It could never have been the legislative intent that a marriage

validly contracted after the divorce and after expiry of the period of

limitation to file an appeal from the decree of divorce should rendered

void on the filing of a belated appeal. If the marriage of the

Appellant’s ex-husband in 2006 was a valid marriage in law

recognizing that he had no living spouse, the subsequent re-marriage

of the Appellant could also not be void. We are in full agreement

with the view of this Court in Leela Gupta (supra) that the effect of

the prohibition against one of the parties from contracting a second

marriage for a certain period is not to nullify the divorce and continue

the dissolved marriage, as if the same were subsisting.

38. Learned counsel appearing on behalf of the Appellant has also

argued that maintenance cannot be refused on the ground of nullity

of marriage, until there is a declaration of nullity of marriage by a

competent Court, in appropriate proceedings under Section 11 of the

Hindu Marriage Act. We need not go into this question in view of our

finding that a marriage contracted during the pendency of an appeal

from a decree is not ab initio void, and certainly not when such an

appeal is filed after expiry of the period of limitation.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 321 OF 2020

Krishnaveni Rai Vs  Pankaj Rai 

Indira Banerjee, J.

Dated:FEBRUARY 19, 2020

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Whether magistrate can review order passed U/S 125 of CRPC?

 In Section 125 Cr.P.C. uses the expression used is “as the Magistrate from time to time direct”. The use of expression ‘from time to time’ has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time. Use of expression ‘from time to time’ in is

exercise of jurisdiction of Magistrate in a particular case. Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd edition defines ‘time to time’ as follows: -

“Time to time. As occasion arises”

25. The above Legislative Scheme indicates that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions.

26. Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125. The Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or

final order disposing the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding under Section 125 Cr.P.C. as indicated above.

27. The submissions which have been pressed by the learned counsel for the appellant were founded only on embargo of Section 362 and when embargo of Section 362 is expressly relaxed in proceeding under Section 125 Cr.P.C., we are not persuaded to accept the submission of counsel for the appellant that the Family Court was not entitled to set aside and cancel its order dated 06.05.2017 in facts and circumstances of the present case.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.286 OF 2020

SANJEEV KAPOOR  Vs  CHANDANA KAPOOR 

ASHOK BHUSHAN, J.

Dated:19 -2-2020

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Whether wife is entitled to get maintenance U/S 125 of CRPC if she is granted permanent alimony?

Since the Parliament has empowered the Court under Section

25(2) of the Act and kept a remedy intact and made available to the

concerned party seeking modification, the logical sequittor would

be that the remedy so prescribed ought to be exercised rather than

creating multiple channels of remedy seeking maintenance. One can

understand the situation where considering the exigencies of the

situation and urgency in the matter, a wife initially prefers an

application under Section 125 of the Code to secure maintenance in

order to sustain herself. In such matters the wife would certainly

be entitled to have a full-fledged adjudication in the form of any

challenge raised before a Competent Court either under the Act or

similar such enactments. But the reverse cannot be the accepted

norm.

In the circumstances, we allow these appeals, set aside the

view taken by the High Court and direct that the application

preferred under Section 125 of the Code shall be treated and

considered as one preferred under Section 25(2) of the Act.

Since the matter pertains to grant of maintenance.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s).246-247/2020

RAKESH MALHOTRA Vs KRISHNA MALHOTRA 

Dated:February 7, 2020

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Whether muslim wife aged 15 years can file application for maintenance U/S 125 of CRPC without next friend?

Section 2 of the Indian Majority Act, 1875 lays down that nothing contained therein shall affect the capacity of any person to act in matters of marriage, dower, divorce, and adoption. Clause (b) of this section excepts the religion or religious rights and usages also of any class of citizens of India from the provisions of that Act. So, the provisions of Section 3 of that Act that every person domiciled in India shall be deemed to have attained his majority by having completed the age of 18 years and not before, has no application to this case. That the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce amongst Mohammadan's and that a Mohammadan wife, who has attained publicity, may file a suit for divorce without a next friend, even after she is under 18 years of age has been well recognised and can also be seen from page 283 of Mulla's Principles of Mohammadan Law Eighteenth Edition. Section 251 of the said principles dealing with capacity for marriage, would show that every Mohammadan of sound mind, who has attained puberty, may enter into a contract of marriage, while it can be seen from the Explanation to that section that puberty is presumed in the absence of evidence, on completion of the age of fifteen years. So, if a Mohammadan woman could validly contract a marriage on attainment of 15 years, I fail to understand how she could be barred from maintaining an action under Section 125, Cr. P. C. unless she is represented by a guardian more so, when there is no such disabling provision either in that section or anywhere else in the Code. If the Legislature intended that a wife, who is under 18 years of age, should not be permitted to start proceedings under Section 125 Cr. P. C. for maintenance against her husband, it would have certainly made the necessary provision therefore in that section itself, as in the case of certain other proceedings covered by the Code. Reference may be made to Sections 198 and 199 of the Code to illustrate the same-S. 198, dealing with prosecution for offences against marriage, lays down that where the aggrieved person happens to be under the age of 18 years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. There is a similar provision in Section 199 dealing with prosecutions for defamation. When it is thus seen that the legislature has taken care to provide for representation of certain categories of persons by others in proceedings under Sections 198 and 199 of the Cr. P. C, it would have done the same thing even in the case of applications under Section 125, Cr. P. C. But the conspicuous absence of any such embargo on a wife, who is below the age of 18 years, against applying for relief under Section 125, Cr. P. C. is in my opinion, sufficient to reject the contention urged for the petitioner that the respondent is not competent to apply for maintenance under Section 125, Cr. P. C. unless she is represented by a guardian, for the simple reason that she was only 15 years old at the date of her application.

IN THE HIGH COURT OF ANDHRA PRADESH

Decided On: 04.04.1979

Gulam Mustafa Vs. Tahara Begum and Ors.

Hon'ble Judges/Coram:

Y. Venkateswara Rao, J.

Citation: 1980 CRLJ 124 AP

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Bombay HC: Wife is not entitled to maintenance if divorce is on ground of adultery

 Learned counsel for the Petitioner-wife would urge that,

even if the Petitioner is a divorcee, having regard to the provisions of

Sub-section (4) of Section 125 of the Code of Criminal Procedure,

1973 she is entitled for maintenance as she continues, to be a woman,

within the meaning of Sub-section (4) of Section 125 of the Act.

6. He would draw support from the Judgments of the Apex

Court in VANAMALA VS H.M.RANGANATHA BHATTA reported in 1995

DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000

DGLS (SC) 450 so as to support his aforesaid contentions. The sum

and substance of the submission is even if there is a decree of divorce

passed on the allegation of adultery, still bar under Sub-section (4) of

Section 125 of the Act, will not be attracted, as even after divorce, she

ceases to have the status of a wife but, she continues to be a woman.

 In the aforesaid background, both these Judgments will be

hardly of any assistance to the Petitioner. Considering the expressed

embargo on the right of the Petitioner, to claim maintenance

particularly, divorce was ordered on 27.4.2000 based on the allegation

of adultery, the Court below has rightly held that the Petitioner-wife is

not entitled for maintenance.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2547 OF 2016

Sanjivani Ramchandra Kondalkar vs.  Ramchandra Bhimrao Kondalkar & anr 

CORAM : NITIN W.SAMBRE,J

DATED : 18th DECEMBER, 2019

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Supreme Court: Divorced wife can not be denied maintenance U/S 125 even if divorce was on ground of desertion

The short question raised in these appeals is whether a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance Under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C.).

 No doubt, as urged by Mr. Debal Banerjee, explanation II to Section 125 of the Code of Criminal Procedure by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance Under Section 125 of the Code of Criminal Procedure The question is how we should read the provisions of Sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr. Debal Banerjee.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 232-233 of 2015

Decided On: 19.09.2019

 Swapan Kumar Banerjee  Vs.  The State of West Bengal 

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: AIR 2019 SC 4748

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Bombay HC judgment for recording of evidence on affidavit in proceeding U/S 125 of CRPC

It may be mentioned that the object of the Family Courts is

inter alia to secure speedy settlement of the disputes relating to

marriage and family affairs and the object of Chapter IX of the

Cr.P.C., as set out by the learned Magistrate in his opinion under

reference, is the speedy remedy provided to women and children

to obtain maintenance to prevent vagrancy and destitution.

Therefore, the provisions of the Family Courts Act so far as they

relate to the procedure set out in Chapter fV thereof must be

followed by the Magistrates who try applications under Chapter

IX which are essentially civil in nature and analogous to

proceedings under the Family Court's Act. Consequently in the

matters which go to trial under Chapter IX of the Cr.P.C the

Magistrate shall take "all the evidence" by affidavit of

examination- in-chief produced in support of the application. 

IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

CRIMINAI, APPELLATE JURISDICTION

CRIMINAL REFERENCE NO.3 OF 2OO7

Mr. K.V. More

3.d Jt. Civil Judge (J.D.)

& J.M.F.C., Baramati

Dist: Pune

Vs.

The State of Maharashtra

CORAM: DR. S. RADHAKRISHNAN &

SMT.ROSHAN DALVI, JJ.

DATED: 23RD OCTOBER, 2007

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Supreme Court: Magistrate can not grant maintenance U/S 125 of CRPC after declining relief under Domestic violence

Once the learned Magistrate declined to grant

maintenance for reasons specified, it was not open for him

to assume jurisdiction in a proceeding under section 125

of the Cr.P.C. which was not pending before him and was a

completely independent proceeding to direct grant of

maintenance under the same. The two being independent

proceedings, the learned Magistrate wrongly assumed

jurisdiction under Section 125 Cr.P.C in a proceeding

under the Act. In effect, what the magistrate directly

declined to the respondent, he granted indirectly by

observing that till the proceedings under section 125 of

Cr.P.C. is not decided, the appellants shall pay

maintenance at a rate of Rs.2,000/- per month to the

respondent.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1613 OF 2019

P. RAJKUMAR & ANR.  Vs YOGA @ YOGALAKSHMI 

Dated:OCTOBER 23, 2019.

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Whether wife who has obtained divorce on ground of desertion is entitled to get maintenance?

Thereafter, in Rohtash Singh Vs. Ramendri & Ors . (2000) 3 SCC 180, this Court took a similar view:
"11. Learned counsel for the petitioner then
submitted that once a decree for divorce was
passed against the respondent and marital
relations between the petitioner and the
respondent came to an end, the mutual rights,
duties and obligations should also come to an
end. He pleaded that in this situation, the
obligation of the petitioner to maintain a
woman with whom all relations came to an end
should also be treated to have come to an end.
This plea, as we have already indicated above,
cannot be accepted as a woman has two distinct
rights for maintenance. As a wife, she is
entitled to maintenance unless she suffers from
any of the disabilities indicated in Section
125(4). In another capacity, namely, as a
divorced woman, she is again entitled to claim
maintenance from the person of whom she was
once the wife. A woman after divorce becomes a
destitute. If she cannot maintain herself or
remains unmarried, the man who was once her
husband continues to be under a statutory duty
and obligation to provide maintenance to her."
This view, which was taken by two-Judge Benches has
been confirmed in Manoj Kumar Vs. Champa Devi (2018) 12 SCC 748 by a three
judge bench, though, no specific reasons have been
recorded in the judgment. Mr. Debal Banerjee urged that
the matter requires reconsideration. We are not in

agreement with him for two reasons. Firstly, the view
taken in the first two judgments has been confirmed by a
three-judges Bench and, therefore, we cannot refer it to
a larger Bench.
Even otherwise, this view has been consistently
taken by this Court and the said view is in line with
both the letter and spirit of the Cr.P.C.
No doubt, as urged by Mr. Debal Banerjee,
explanation II to Section 125 of the Cr.P.C. by deeming
fiction includes a divorced woman to be a wife and,
therefore, a woman who has been divorced by her husband
can still claim maintenance under Section 125 of the
Cr.P.C. The question is how we should read the provisions
of sub-section (4) in this regard, especially when we
deal with those women, against whom a decree for divorce
has been obtained on the ground that they have deserted
their husband. Once the relationship of marriage comes to
an end, the woman obviously is not under any obligation
to live with her former husband. The deeming fiction of
the divorced wife being treated as a wife can only be
read for the limited purpose for grant of maintenance and
the deeming fiction cannot be stretched to the illogical
extent that the divorced wife is under a compulsion to
live with the ex-husband. The husband cannot urge that he
can divorce his wife on the ground that she has deserted
him and then deny maintenance which should otherwise be
payable to her on the ground that even after divorce she

is not willing to live with him. Therefore, we find no
merit in the contention of Mr. Debal Banerjee.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S).232-233 OF 2015

DR. SWAPAN KUMAR BANERJEE Vs  THE STATE OF WEST BENGAL 

DEEPAK GUPTA, J.
Dated:September 19, 2019.

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Supreme Court: Maintenance order passed under S 125 of CRPC should be stayed in exceptional circumstances

 We are constrained to observe that this order

shows total non-application of mind on the part of

the High court. This was a case where maintenance

had been granted to a wife and to a minor son. The

High Court without recording any reason whatsoever,

has stayed the grant of maintenance both to the wife

and to the minor son. This should not be done. A

husband/father is duty bound to maintain his wife and

child. Unless there are very special reasons, the

higher Court should not normally stay such an order.

In the present case no reason has been mentioned

justifying the grant of the stay order.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1399 OF 2019

PRATIMA DEVI Vs  ANAND PRAKASH 

Dated: SEPTEMBER 16, 2019.

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