# Alakhram v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 597
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Application U/S 482 Cr.P.C. No. 19600 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alakhram-v-state-of-u-p-anr-46853
- **Pages:** 5

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 - Order for
maintenance of wives , children and
parents - Section 125 of the Code of
Criminal Procedure enacted to achieve a
social purpose - primary object - to
render social justice to the woman, child
and infirm parents so as to prevent
destitution and vagrancy compelling those
who can support those who are unable to
support themselves but have a moral
598 INDIAN LAW REPORTS ALLAHABAD SERIES
claim for support. - aims to provide a
speedy remedy to the women, children
and
destitute
parents
who
are
in
distress.(Para -12)

An application under Section 125 moved by the
opposite party no. 2 (wife) - order passed,
allowing the said application - directing payment
of maintenance - breach of the aforesaid order
- an application(paper no. 14 kha) under
Section 125(3) was moved by the opposite party
no. 2, upon which the order dated 18.11.2019,
has been passed - applicant herein claims to
have filed an application dated 6.1.2020 (paper
no. 17 kha) for recall of the said order and the
said application is stated to be pending.(Para -
3,5)

HELD:- The liability to pay maintenance under
Section 125 Cr.P.C. being in the nature of
continuing liability; accordingly, in case of a
default in complying with an order passed under
Section 125(1) for payment of maintenance or
for any breach thereof, the invocation of the
exercise of power under Section 125(3) by the
Magistrate, cannot be faulted with - In the
event the applicant has made any payment in
respect of arrears of maintenance, as claimed
by him, and in regard to which, he has filed a
recall application (paper no. 17 kha), it is always
open to him to pursue the aforesaid application
before the court below.(Para -15,16)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of Cases cited:-

## Text

2 All. Alakhram Vs. State of U.P. & Anr.
597
& others, reported in 1998 UPCrR 118"
Hon'ble Supreme Court held :-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning the accused. Magistrate
had to carefully scrutinize the evidence
brought on record and may even himself
put questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused."

12. In light of the judgments referred
to above, it is explicitly clear that the order
dated 20th January, 2020 passed by the
concerned Magistrate is cryptic and does
not stand the test of the law laid down by
the Apex Court. Consequently, the order
dated 20th January, 2020 cannot be legally
sustained, as the Magistrate failed to
exercise the jurisdiction vested in him/her
resulting in miscarriage of justice.

13. Accordingly, the present criminal
misc. application succeeds and is allowed
at the admission stage without issuing
notice to the prospective opposite parties,
as opposite party no.2 has no right to be
heard at pre-cognizance stage. Order dated
20th January, 2020 is, hereby, quashed.

14. The Judicial Magistrate, Mathura
is directed to exercise his discretionary
power and decide afresh the application for
summoning
the
applicants
and
pass
appropriate orders in accordance with law
keeping in view the observations made by
this Court as well as the direction contained
in the judgments referred to above within a
period of two months from the date of
production of a certified copy of this order.
----------
(2021)02ILR A597
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19600 of 2020

Alakhram ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Virpratap Singh, Sri Rajat Agarwal

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 - Order for
maintenance of wives , children and
parents - Section 125 of the Code of
Criminal Procedure enacted to achieve a
social purpose - primary object - to
render social justice to the woman, child
and infirm parents so as to prevent
destitution and vagrancy compelling those
who can support those who are unable to
support themselves but have a moral
598 INDIAN LAW REPORTS ALLAHABAD SERIES
claim for support. - aims to provide a
speedy remedy to the women, children
and
destitute
parents
who
are
in
distress.(Para -12)

An application under Section 125 moved by the
opposite party no. 2 (wife) - order passed,
allowing the said application - directing payment
of maintenance - breach of the aforesaid order
- an application(paper no. 14 kha) under
Section 125(3) was moved by the opposite party
no. 2, upon which the order dated 18.11.2019,
has been passed - applicant herein claims to
have filed an application dated 6.1.2020 (paper
no. 17 kha) for recall of the said order and the
said application is stated to be pending.(Para -
3,5)

HELD:- The liability to pay maintenance under
Section 125 Cr.P.C. being in the nature of
continuing liability; accordingly, in case of a
default in complying with an order passed under
Section 125(1) for payment of maintenance or
for any breach thereof, the invocation of the
exercise of power under Section 125(3) by the
Magistrate, cannot be faulted with - In the
event the applicant has made any payment in
respect of arrears of maintenance, as claimed
by him, and in regard to which, he has filed a
recall application (paper no. 17 kha), it is always
open to him to pursue the aforesaid application
before the court below.(Para -15,16)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of Cases cited:-

1. Shantha & ors. Vs B.G. Shivananjappa , (2005)
4 SCC 468

2. Poongadi & ors. vs Thangavel , (2013) 10 SCC 618

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Virpratap Singh, learned
counsel for the applicant and Sri Vinod Kant,
learned
Additional
Advocate
General,
assisted by Sri Arvind Kumar, learned
A.G.A., for the State- opposite party no.1.

2. The present application has been
filed seeking to quash the order dated
18.11.2019 passed by Principal Judge,
Family Court, Mahoba, as well as entire
proceedings of Case No. 189 of 2019 (Smt.
Uma Devi vs. Alakhram), stated to be
pending before Family Court, Mahoba.

3. The aforementioned order dated
18.11.2019 has been passed upon an
application (paper no. 14 kha) under Section
125(3) Cr.P.C. The applicant herein claims to
have filed an application dated 6.1.2020
(paper no. 17 kha) for recall of the said order
and the said application is stated to be
pending.

4. Learned Additional Advocate
General has raised an objection with regard to
the maintainability of the present application
filed under Section 482 Cr.P.C. on the ground
that the order dated 18.11.2019 passed by the
Family Court is in exercise of powers under
Section 125(3) Cr.P.C. on account of default
made by the applicant in complying with the
earlier order dated 20.10.2016 directing
payment of maintenance to the opposite party
no. 2, and that the applicant having already
filed a recall application before the court
below, and the court below being seized with
the matter, it is open to the applicant to
pursue the matter before the family court.

5. The admitted facts of the case are
that in proceedings under Section 125
initiated upon an application moved by the
opposite party no. 2 (wife), an order dated
20.10.2016 was passed, allowing the said
application and directing payment of
maintenance. Alleging breach of the
aforesaid order, an application under
Section 125(3) was moved by the opposite
party no. 2, upon which the order dated
18.11.2019, has been passed.
2 All. Alakhram Vs. State of U.P. & Anr.
599

6. In order to appreciate the
controversy in the present case, the relevant
statutory provisions may be adverted to.

7. Section 125 Cr.P.C. falls under
Chapter IX of the Code of Criminal
Procedure, 1973 and it contains provisions
whereunder, an order for maintenance of
wives, children and parents can be made.
The object of the provisions contained
under Chapter IX is to provide a speedy
and effective remedy against persons, who
neglect
or
refuse
to
maintain
their
dependant wives, children and parents.

8. The provisions contained under
Section 125 Cr.P.C., as they stand today,
are extracted below :-

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, 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 :

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.

Explanation.- For the purposes of
this Chapter,-

(a) " minor" means a person who,
under the provisions of the Indian Majority
Act, 1875 (9 of 1875 ); is deemed not to
have attained his majority;

(b) " wife" includes a woman
who has been divorced by, or has obtained
a divorce from, her husband and has not
remarried.

(2) Any such allowance for the
maintenance or interim maintenance and
expenses of proceeding shall be payable
from the date of the order, or, if so ordered,
from the date of the application for
maintenance or interim maintenance and
expenses of proceeding, as the case may be.

(3) If any person so ordered fails
without sufficient cause to comply with the
order, any such Magistrate may, for every
600 INDIAN LAW REPORTS ALLAHABAD SERIES
breach of the order, issue a warrant for
levying the amount due in the manner
provided for levying fines, and may
sentence such person, for the whole, or any
part of each month's allowance for the
maintenance or the interim maintenance
and expenses of proceeding, as the case
may be, remaining unpaid after the
execution of the warrant, to imprisonment
for a term which may extend to one month
or until payment if sooner made:

Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be
made to the Court to levy such amount
within a period of one year from the date
on which it became due:

Provided further that if such
person offers to maintain his wife on
condition of her living with him, and she
refuses to live with him, such Magistrate
may consider any grounds of refusal stated
by her, and may make an order under this
section notwithstanding such offer, if he is
satisfied that there is just ground for so
doing.

Explanation.- If a husband has
contracted marriage with another woman or
keeps a mistress, it shall be considered to
be just ground for his wife' s refusal to live
with him.

(4) No Wife shall be entitled to
receive an allowance for the maintenance
or the interim maintenance and expenses of
proceeding, as the case may be, 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) On proof that any wife in
whose favour an order has been made
under this section is living in adultery, or
that without sufficient reason she refuses to
live with her husband, or that they are
living separately by mutual consent, the
Magistrate shall cancel the order."

9. The procedure for enforcement of
an order passed under Section 125 Cr.P.C.
with regard to maintenance, is provided for
under sub-section (3) of Section 125. A
perusal of the provisions contained under
Section 125(3) indicates that if any person
ordered to pay monthly allowance for
maintenance under Section 125(1) fails
without sufficient cause to comply with the
order, the Magistrate is empowered for
every breach of the order to issue a warrant
for levying the amount due in the manner
provided for levying fines, and is further
empowered to sentence such person, for the
whole, or any part of each month's
allowance for the maintenance or the
interim maintenance and expenses of
proceeding, as the case may be, remaining
unpaid after the execution of the warrant, to
imprisonment for a term which may extend
to one month or until payment if sooner
made.

10. The proceedings for maintenance
under Section 125 Cr.P.C. are of a
summary nature and the purpose and object
of the same is to provide immediate relief
to the applicant. The object of the provision
being to prevent vagrancy and destitution,
the hardship faced by the wife in having to
wait for several years before being granted
maintenance, was taken note of in the
Statement of Objects and Reasons of the
Code of Criminal Procedure (Amendment)
Act, 20011 [w.e.f. 24.9.2001] whereunder,
the
provision
relating
to
interim
maintenance allowance was introduced.

11. In terms of the Amendment Act,
2001, the word 'allowance' occurring in
sub-section (3) of Section 125 Cr.P.C. has
been given a wider meaning, so as to mean
2 All. Mithilesh Maurya Vs. State of U.P. & Anr.
601
"allowance for the maintenance or the
interim maintenance and expenses of
proceeding."

12. Section 125 of the Code of Criminal
Procedure, has been enacted to achieve a
social purpose with the primary object to
render social justice to the woman, child and
infirm parents so as to prevent destitution and
vagrancy compelling those who can support
those who are unable to support themselves
but have a moral claim for support. It aims to
provide a speedy remedy to the women,
children and destitute parents who are in
distress.

13. In Shantha and Ors. vs B.G.
Shivananjappa2, Section 125 Cr.P.C. has
been held to be a measure of social legislation
which has to be construed liberally for the
welfare and benefit of the persons referred
therein and the liability to pay the
maintenance as per the order passed under
Section 125(1) has been held to be a
continuing liability.

14. The provisions contained under
Section 125(3) and the first proviso thereto
came up for consideration in Poongadi and
Ors. vs Thangavel3, and it was held that the
proviso to Section 125(3) signifies that it is a
mode of enforcement and does not create any
bar or affects rights to claim arrears of
maintenance. It lays down the procedure for
recovery of maintenance by construing
maintenance to be a levy of fine.

15. The liability to pay maintenance
under Section 125 Cr.P.C. being in the nature
of continuing liability; accordingly, in case of
a default in complying with an order passed
under Section 125(1) for payment of
maintenance or for any breach thereof, the
invocation of the exercise of power under
Section 125(3) by the Magistrate, cannot be
faulted with.

16. In the case at hand, in the event
the applicant has made any payment in
respect of arrears of maintenance, as
claimed by him, and in regard to which, he
has filed a recall application (paper no. 17
kha), it is always open to him to pursue the
aforesaid application before the court
below.

17. With the aforesaid observations,
the present application filed under Section
482 Cr.P.C. stands dismissed.
----------
(2021)02ILR A601
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19612 of 2020

Mithilesh Maurya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Aradhana Singh, Sri Moti Lal Yadav

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 - Order for
maintenance
of
wives,
children
and
parents - Object - To provide a speedy
and effective remedy against persons,
who neglect or refuse to maintain their
dependant wives, children and parents -
proceedings
for
maintenance
under
Section 125 Cr.P.C. are of a summary
nature. (Para - 6,13)