The object of the maintenance proceedings is not to punish a person for his past neglecti but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support.


CASE BRIEF: Mohd. Hussain Nizampasha Patil V/s Nilofar @ Farheen (Gori) Mohammadhusain Patil and Ors.


CASE NAME: Mohd. Hussain Nizampasha Patil V/s  Nilofar @ Farheen (Gori) Mohammadhusain Patil and Ors.

CITATION: WRIT PETITION NO. 6101 OF 2018

COURT: THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH: AKIL KURESHI, J

S.J. KATHAWALLA, J.

DECIDED ON: 8TH AUGUST, 2019

RELEVENT STATUTES: Constitution of India

The Criminal Procedure Code, 1973

The Hindu Marriage Act, 1955

Domestic Violence Act, 2005

The Indian Penal Code, 1860


BRIEF FACTS & PROCEDURAL HISTORY:

1. The petitioner and respondent no. 1 got married on 25th December, 2011 as per Islamic rites. The marital dispute surfaced within a short time. Respondent wife filed an application for maintenance under section 125 of the Criminal Procedure Code, 1973 (‘Cr.PC’ for short) on 22nd July, 2014 before the Family Court, Solapur claiming maintenance of Rs.25,000/- from her husband for herself and Rs.25,000/- for her son.

2. The wife also instituted two separate proceedings against the husband under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘DV Act’) before the Court of Judicial Magistrate, First Class, Solapur. The wife has also filed an FIR against the Petitioner before Vijapur Naika Police Station at Solapur on 1st May, 2013 alleging commission of offence punishable under section 498A of the Indian Penal Code, 1860.

3. The Family Court, Solapur in the application for maintenance filed by the wife directed the husband to pay Rs.30,000/- to the wife and Rs.10,000/- to the son by an order dated 24th February, 2017. Against the said order dated 24th February, 2017, the petitioner filed a revision petition before the High Court. Revision petition was dismissed by an order dated 26th July, 2017.

4. The learned Single Judge of the High Court confirmed the order of the Family Court. The learned Single Judge noted that the Family Court had awarded 1/3rd of the petitioner’s income by way of maintenance to the wife and son. It was recorded thatthe wife was not employed.

5.  Thereafter, the petitioner filed the present petition, in which he has made the noted prayers. The prayers made by the petitioner can be divided in three parts. In prayer clause (a), the petitioner has challenged the constitutional vires of section 125 of Cr.PCr. In prayer clause (b), the petitioner seeks a direction to the Union of India or the State of Maharashtra to formulate guidelines, which would be followed by the Courts while granting maintenance under different statutory provisions such as section 125 of Cr.PCr, section 24 of Hindu Marriage Act, 1955 and section 12 of the DV Act. Prayer clause (c) is in the nature of alternate to prayer (b) urging this Crourt to lay down guidelines for the purpose of awarding such maintenance.


ISSUES:

1. Is section 125 of Cr.P.C. ultra-vires of the Constitution of India and does the same  discriminates between men and women and thus is against the constitutional mandate contain under Article 14 of the Constitution of India?


RATIO OF THE COURT:

1. In all sub clauses of section 125 of Cr.P.C , the legislature has used the words “unable to maintain” himself or herself as the case may be. Thus it is understood firstly that the provision is made for maintenance of a special class of persons and secondly the maintenance would be awarded if such person is unable to maintain himself or herself.

2. The Statement of Objects and Reasons for introducing the said provision, provides inter alia that :“It has been observed that an applicant after filing application in a Court under section 125 of the Code of Criminal Procedure 1973 has to wait for several years for getting relief from the Court. It is therefore felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonablei to the aggrieved person. It is also proposed that this order be made ordinarily within sixty days from the date of the service of the notice.”

3. Section 125 of Cr.PC thus makes a welfare provision for protection of the needy and weaker section of the society. The Court in case of Chaturbhuj v. Sita Bai (2008) 2 Supreme Court Cases 316 observed that the object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those, who can provide support to those, who are unable to support themselves and who have a moral claim to support. It was further observed that where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn.

4. In the case of Danial Latif v. Union of India, the Supreme Court made following observations : “A comparison of these provisions with Section 125 Cr.PC will make it clear that requirements provided in Section 125 and the purpose object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its significance.

5. In other words, there is no merit in the contention raised by the learned counsel for the petitioner in this regard. Article-14 of the Constitution of India as is well-known, prohibits classes legislation but not reasonable classification.


DECISION HELD:

1. The constitutionality of section 125 of Crr.PCr thus has been tested and upheld.The challenge to the vires of section 125 of Crr.PCr must fail.

2. Prayer clause (b) needs to be summarily rejected. No executive instructions can be issued to govern the discretion of any Court.

3. The occasion for the court to lay down any guidelines as prayed for in prayer clause(c) has not arisen. This petition is not filed in the nature of public interest petition. Petition is therefore dismissed.

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