It is rightly pointed out on behalf of the petitioner that the husband may, under certain circumstances, seek maintenance from his wife under sections 24 and 25 of the Hindu Marriage Act, 1955, but not under section 125 of the Code. On plain reading of section 125(1) of the Code, right to seek maintenance is available only to the persons named therein. That being an independent right, the respondent No. 1 in his capacity as the husband of the petitioner cannot maintain his claim for maintenance under section 125 of the Code.
12. When there is a legal bar to claim maintenace under section 125 of the Code by the husband against his wife, his application purported to be an application under section 125 of the Code is certainly not maintainable under the Code. He may go to Civil Court for establishing his right to claim maintenance, but the Magistrate in exercising his power under section 125 of the Code cannot pass an order for maintenance in his favour. That means the Magistrate who entertains such an application from husband under section 125 of the Code is not competent to pass an order for maintenance.
Bombay High Court
Smt. Jayashri D/O Padmakar ... vs Vibhas S/O Kalyanrao Kulkarni And ... on 4 August, 1994
Equivalent citations: 1995 (2) BomCR 588, I (1995) DMC 5
1. This criminal writ petition arises out of proceeding under section 125 of the Code of Criminal Procedure, 1973 (for short the Code) initiated by the respondent No. 1 against the petitioner. This writ petition is filed for quashing of the said proceeding which is pending before the Judicial Magistrate, First Class, Edlabad.2. The petitioner married the respondent No. 1 on 15-5-1978 according to Hindu rites and ceremonies. One son was born to them out of the said wedlock. It appears that the marriage was broken when the consent decree of divorce was obtained by parties in Hindu Marriage Petition No. 140/1981 on 18-3-1981. After the dissolution of the marriage, the petitioner filed Miscellaneous Criminal Application No. 150/1982 under section 125 of the Code for maintenance for and on behalf of her minor son. In that criminal application, a compromise was arrived at. The respondent No. 1 agreed to transfer part of his land in the name of minor. Though the mutation was effected in the revenue record, the income of the land was never given to the petitioner being the guardian of the minor. The petitioner, therefore, filed another Miscellaneous Application No. 208 of 1986 in the Court of Judicial Magistrate (F.C.), Aurangabad, inter-alia, for maintenance for and on behalf of the minor. By order dated 17-3-1987, the Magistrate granted the maintenance allowance at the rate of Rs. 300/- per month. That order has become final.
3. The respondent No. 1, however, filed Miscellaneous Criminal Application No. 35/1989, inter-alia, claiming monthly maintenance allowance from the petitioner under the provision of section 125 of the Code, on the ground that he is unable to maintain himself as a poor agriculturist, but the petitioner is earning by working as a Clerk. The respondent No. 1, therefore, claimed monthly maintenance at the rate of Rs. 500/- per month.
4. The notice of that proceedings was received by the petitioner. The petitioner, therefore, challenges said proceedings as without jurisdiction of the Court of Judicial Magistrate to entertain the respondent No. 1's application under the provisions of section 125 of the Code.
5. The notice of this writ petition was issued to respondent No. 1. He has been duly served, but has chosen to remain absent.
6. Smt. Bade, the learned Counsel, submits that the learned Magistrate committed an error of law in entertaining the application of the respondent No. 1 under the provisions of section 125 of the Code in as much as no such application can be filed for maintenance allowance by a husband against a wife under provisions of section 125 of the Code. It has been submitted that section 125(1) of the Code only entitles those persons who are included in sub-section (1) of section 125 of the Code to claim maintenance. The respondent No. 1 is not one of those persons included in sub-section (1) of section 125 and was, therefore, not entitled to avail the remedy under section 125 of the Code.
7. The learned Counsel further argued that the learned Magistrate was not competent to entertain the application for maintenance under the Code filed by respondent No. 1 as the husband of petitioner. According to the learned Counsel, the respondent No. 1 has launched the aforesaid proceeding as a vendetta against the petitioner and, therefore, in order to prevent the abuse of process of law or to secure the ends of justice, this Court would be justified in exercising powers under section 482 of the Code for quashing the said proceeding.
8. Shri Varale, the learned Additional Public Prosecutor, virtually supported the submission of Smt. Bade, the learned Counsel appearing for the petitioner.
9. Section 125(1) of the Code of Criminal Procedure, 1973, so far as it is relevant, reads as follows :-
125. (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, 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 not exceeding five hundred repees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Explanation.-For the purposes of this Chapter.--
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875, is deemed not to have attained his majority;
(b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.
(2) ... ... ... ...
(3) ... ... ... ...
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) ... ... ... ..."
10. The aforesaid provisions of section 125 of the Code give effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. In this context, it may be stated that a married daughter is also not excluded from her moral obligation to maintain her parents. The very object of this section is to provide a speedy remedy against starvation for the persons named therein. The remedy as provided in section 125(1) of the Code is, however, open only to a wife or child either legitimate or illegitimate or to the parents of male or female, as the case may be, who are unable to maintain themselves. But by no stretch of imagination, it can be said that the remedy is also open to a husband who is unable to maintain himself.
11. It is rightly pointed out on behalf of the petitioner that the husband may, under certain circumstances, seek maintenance from his wife under sections 24 and 25 of the Hindu Marriage Act, 1955, but not under section 125 of the Code. On plain reading of section 125(1) of the Code, right to seek maintenance is available only to the persons named therein. That being an independent right, the respondent No. 1 in his capacity as the husband of the petitioner cannot maintain his claim for maintenance under section 125 of the Code.
12. When there is a legal bar to claim maintenace under section 125 of the Code by the husband against his wife, his application purported to be an application under section 125 of the Code is certainly not maintainable under the Code. He may go to Civil Court for establishing his right to claim maintenance, but the Magistrate in exercising his power under section 125 of the Code cannot pass an order for maintenance in his favour. That means the Magistrate who entertains such an application from husband under section 125 of the Code is not competent to pass an order for maintenance.
13. There is also merit in the submission of the learned Counsel for the petitioner that the application which is filed by respondent No. 1 under the provisions of section 125 of the Code is with intent to harass the petitioner and to deprive her minor son from recovering the maintenance allowance. That again indicates that the present proceeding appears to have been launched as a personal vendetta against the petitioner.
14. It is well settled that where the criminal proceeding is filed as a personal vendetta or to harass the other party, the High Court would be justified in quashing such proceeding in exercise of powers under section 482 of the Code to prevent the abuse of process of law or to secure the ends of justice. In my opinion, in the circumstances of the case, the writ petition must be allowed.
15. The result is that the writ petition is allowed. The proceeding in Miscellaneous Criminal Application No. 35 of 1989 pending before the learned Judicial Magistrate, First Class, Edlabad, Dist. Jalgaon, is hereby quashed and set aside. Rule is accordingly made absolute. There shall be no order as to costs.
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