# Mithilesh Maurya v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Application U/S 482 Cr.P.C. No. 19612 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithilesh-maurya-v-state-of-u-p-anr-46854
- **Pages:** 7

## Headnote

(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)
602 INDIAN LAW REPORTS ALLAHABAD SERIES
Present application filed , seeks quashing of an order
passed by the Additional Principal Judge, Family Court
, filed under Section 125 of Cr.P.C. - order which is
sought to be quashed, the application (paper no.
18Kha) filed by the opposite party no.2 seeking
interim maintenance, has been allowed.(Para -2,3)

HELD:- An order granting interim maintenance is
subject to final adjudication on the main petition and
the interim maintenance granted during the
pendency of the proceedings is only a provisional
maintenance subject to final determination to be
made on the conclusion of the proceedings. This
Court is not inclined to exercise its inherent
jurisdiction under Section 482 of the Code of Criminal
Procedure, 1973, in respect of the reliefs prayed
for.(Para - 19,20)

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

List of Cases cited:-

## Text

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)
602 INDIAN LAW REPORTS ALLAHABAD SERIES
Present application filed , seeks quashing of an order
passed by the Additional Principal Judge, Family Court
, filed under Section 125 of Cr.P.C. - order which is
sought to be quashed, the application (paper no.
18Kha) filed by the opposite party no.2 seeking
interim maintenance, has been allowed.(Para -2,3)

HELD:- An order granting interim maintenance is
subject to final adjudication on the main petition and
the interim maintenance granted during the
pendency of the proceedings is only a provisional
maintenance subject to final determination to be
made on the conclusion of the proceedings. This
Court is not inclined to exercise its inherent
jurisdiction under Section 482 of the Code of Criminal
Procedure, 1973, in respect of the reliefs prayed
for.(Para - 19,20)

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

List of Cases cited:-

1. Bhuwan Mohan Singh Vs. Meena & ors. , (2015) 6
SCC 353

2. Smt. Dukhtar Jahan Vs Mohammed Farooq ,
(1987) 1 SCC 624

3. Vimala (K.) Vs Veeraswamy (K.) , (1991) 2 SCC
375

4. Kirtikant D. Vadodaria Vs St. of Guj. , (1996) 4 SCC
479

5. Smt. Dukhtar Jahan Vs Mohammed Farooq ,
(1987) 1 SCC 624

6. Vimala (K.) Vs Veeraswamy (K.) , (1991) 2 SCC
375

7. Kirtikant D. Vadodaria Vs St. of Guj. , (1996) 4 SCC
479

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

1. Heard Sri Moti Lal, 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 filed under
Section 482 Cr.P.C., seeks quashing of an order
dated 15.10.2020, passed by the Additional
Principal Judge, Family Court No. 1,
Azamgarh, in proceedings in Case No. 56 of
2018 (Drumlata Maurya vs. Mithlesh Maurya)
filed under Section 125 of Cr.P.C., Police
Station- Deedarganj, District Azamgarh.

3. In terms of the order dated 15.10.2020,
which is sought to be quashed, the application
(paper no. 18Kha) filed by the opposite party
no.2- Smt. Drumlata Maurya, seeking interim
maintenance, has been allowed.

4. Learned Additional Advocate General
appearing for the State respondents, has raised
an objection with regard to the maintainability
of the present petition on the ground that the
order dated 15.10.2020, which is sought to be
challenged, relates to grant of interim
maintenance, which is subject to final
adjudication on the main petition filed under
Section 125 Cr.P.C. It is submitted that it is
open to the applicant to raise all his objections
before the Family Court, and the present
application under Section 482 Cr.P.C., is not
liable to be entertained.

5. In order to appreciate rival contentions,
the relevant statutory provisions relating to
maintenance of wives, children and parents
under the Code of Criminal Procedure, 1973,
may be referred to.

6. 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.
2 All. Mithilesh Maurya Vs. State of U.P. & Anr.
603

7. 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
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
604 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

8. The second proviso to Section
125 Cr.P.C. was inserted by the Code of
Criminal Procedure (Amendment) Act,
20011 [w.ef. 24.9.2001] and in terms
thereof, the Magistrate may, during the
pendency of the proceedings regarding
monthly allowance for the maintenance
under sub-section (1) of Section 125,
order such person to make a monthly
allowance for the interim maintenance of
his wife or his 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.

9. In terms of the third proviso, an
application for the monthly allowance for
the interim maintenance and expenses of
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.

10. The aforementioned provision
with regard to interim maintenance was
inserted taking into consideration that an
applicant, after filing application in a
Court under Section 125 Cr.P.C., had to
wait for several years for getting relief
from the Court and for the said reason,
the provision for grant of interim
maintenance was considered necessary to
obviate the difficulties.

11. The Statement of Objects and
Reasons appended to the Bill in terms of
which the amendment was made, reads as
follows :-

"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 reasonable, to the aggrieved
person. It is also proposed that this order be
2 All. Mithilesh Maurya Vs. State of U.P. & Anr.
605
made ordinarily within sixty days from the
date of the service of the notice."

12. Chapter IX of the Code of
Criminal
Procedure,
1973
contains
provisions
for
making
orders
for
maintenance of wives, children and parents.
The subject matter of the provisions
contained
under
the
chapter
though
essentially of a civil nature, the justification
for their inclusion in the Cr.P.C., is to
provide a more speedy and economical
remedy than that available in civil courts
for the benefit of the persons specified
therein. The provision for grant of interim
maintenance in terms of the second proviso
to Section 125 Cr.P.C. is for providing a
simple and speedy remedy, and to ensure
that the neglected wife, children and
parents are not left destitute and without
any means for subsistence.

13. 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. An application under
Section 125 Cr.P.C. can be moved by the
wife on fulfilment of two conditions :- a)
the husband has sufficient means and; (b)
he neglects or refuses to maintain his wife,
who is unable to maintain herself. The
Magistrate, in such a case, may direct the
husband to pay such monthly sum of the
money,
as
deemed
fit
taking
into
consideration the financial capacity of the
husband and other relevant factors.

14. 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
Amendment Act, 2001 and an express
provision was introduced for grant of
interim maintenance. In terms of the second
proviso inserted by means of Amendment
Act, 2001 the Magistrate has been vested
with the power to order the husband to
make a monthly allowance towards interim
maintenance during the pendency of the
proceedings.

15. The third proviso of Section 125
mandates that the application for grant of
interim maintenance must be disposed of as
far as possible within 60 days from the date
of service of notice of the application on
the husband.

16. The provisions with regard to
grant of maintenance under Section 125
Cr.P.C. and the duty of the husband
towards the wife in regard thereof, came up
for consideration in the case of Bhuwan
Mohan Singh vs. Meena & others2, and
referring to the earlier decisions in Smt.
Dukhtar Jahan v. Mohammed Farooq3,
Vimala (K.) v. Veeraswamy (K.)4 and
Kirtikant D. Vadodaria v. State of
Gujarat5 it was held that the proceedings
are summary in nature and they intend to
provide a speedy remedy and achieve a
social purpose. The observations made in
the judgement in this regard are as follows
:-

"7. We are obliged to reiterate the
principle of law how a proceeding under
Section 125 of the Code has to be dealt
with by the court, and what is the duty of a
Family Court after establishment of such
courts by the Family Courts Act 1984. In
Smt. Dukhtar Jahan v. Mohammed Farooq
(1987) 1 SCC 624, the Court opined that:
(SCC p. 631, para 16)

"16.
.....Proceedings
under
Section 125 of the Code, it must be
remembered, are of a summary nature and
606 INDIAN LAW REPORTS ALLAHABAD SERIES
are intended to enable destitute wives and
children, the latter whether they are
legitimate
or
illegitimate,
to
get
maintenance in a speedy manner."

8. A three-Judge Bench in
Vimala (K.) v. Veeraswamy (K.) (1991) 2
SCC 375, while discussing about the
basic purpose under Section 125 of the
Code, opined that: (SCC p. 378, para 3)

"3. Section 125 of the Code of
Criminal Procedure is meant to achieve a
social purpose. The object is to prevent
vagrancy and destitution. It provides a
speedy remedy for the supply of food,
clothing and shelter to the deserted wife.

9.
A
two-Judge
Bench
in
Kirtikant D. Vadodaria v. State of
Gujarat (1996) 4 SCC 479, while
adverting to the dominant purpose behind
Section 125 of the Code, ruled that: (SCC
p. 489, para 15)

"15. ... While dealing with the
ambit
and
scope
of
the
provision
contained in Section 125 of the Code, it
has to be borne in mind that the dominant
and primary object is to give social
justice to the woman, child and infirm
parents etc. and to prevent destitution and
vagrancy by compelling those who can
support those who are unable to support
themselves but have a moral claim for
support. The provisions in Section 125
provide a speedy remedy to those women,
children and destitute parents who are in
distress. The provisions in Section 125
are intended to achieve this special
purpose. The dominant purpose behind
the benevolent provisions contained in
Section 125 clearly is that the wife, child
and parents should not be left in a
helpless state of distress, destitution and
starvation."

17. It is, therefore, seen that Section
125 Cr.P.C. is in the nature of a benevolent
provision having a social purpose with the
primary object to ensure social justice to
the wife, child and parents, who are unable
to support themselves so as to prevent
destitution and vagrancy.

18. The third proviso to Section 125
Cr.P.C. gives a timeframe by providing that
the proceedings for interim maintenance,
shall, as far as possible, be disposed of
within 60 days' from the date of service of
notice on the husband. This is in
conformity with the object of the provision,
which is in the nature of a social legislation
providing for a summary and speedy relief
by way of grant of maintenance to a wife,
who is unable to maintain herself and her
children.

19. An order granting interim
maintenance is subject to final adjudication
on the main petition and the interim
maintenance granted during the pendency
of the proceedings is only a provisional
maintenance subject to final determination
to be made on the conclusion of the
proceedings.

20. Having regard to the aforesaid,
this Court is not inclined to exercise its
inherent jurisdiction under Section 482 of
the Code of Criminal Procedure, 1973, in
respect of the reliefs prayed for.

21. Counsel for the applicant at this
stage, makes a prayer that he may be
permitted
to
withdraw
the
present
application and states that applicant would
contest the proceedings before the court
below.

22. The present application filed
under
Section
482
Cr.P.C.
stands,
accordingly, dismissed.
----------
2 All. Ashok Ram Dular Vishwakarma @ Ashok Kumar Vishwakarma Vs. State of U.P. & Anr. 607
(2021)02ILR A607
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2021

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 25059 of 2019

Ashok Ram Dular Vishwakarma @ Ashok
Kumar Vishwakarma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ram Manohar Mishra, Smt. Ushma
Mishra, Ms. Monika Jaiswal, Sri Sarveshwari
Prasad

Counsel for the Opposite Parties:
A.G.A., Sri Ganesh Shanker Srivastava, Sri
Om Prakash Kannaujia

(A) Criminal Law - Negotiable Instrument
Act - Sections 118 - Presumptions as to
negotiable instruments , Sections 138 -
Dishonour of cheque for insufficiency, etc.,
of funds in the account , Sections 139 -
Presumption
in
favour
of
holder
-
Complainant being holder of cheque and
the signature appended on the cheque
having not been denied by the Bank -
presumption shall be drawn that cheque
was issued for the discharge of any debt
or other liability - Presumption under
Section 139 is a rebuttable presumption
(Para - 13)

Present matter relates to dishonour of cheque -
accused-applicant caused wrongful loss to the
complainant - failed to make payment of
cheques as demanded by the legal notice -
hence a case for the offence punishable under
Section 138 N.I. Act is made out against him -
Application filed for quashing the summoning
order as well as the entire proceedings of the
Complaint Case under Section 138 of Negotiable
Instrument Act, pending in the Court of
Additional Chief Judicial Magistrate.

HELD:- This Court does not deem it proper to
have a pre-trial before the actual trial begins .
The perusal of the complaint case filed by
opposite party no.2 and the statements of the
complainant and her witnesses under Sections
200 and 202 Cr.P.C. makes out a prima facie
case against the accused at this stage and
there appear to be sufficient ground for
proceeding
against
the
accused.
No
justification to quash the summoning order
and the entire proceedings of the aforesaid
complaint
case
initiated
against
the
applicant.(Para -33)

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

List of Cases cited:-

1. Kali Ram Vs St. of H.P. , (1973) 2 SCC 808

2.
Bharat
Barrel
&
Drum
Manufacturing
Company Vs Amin Chand Pyarelal , (1999) 3
SCC 35

3. M.S. Narayana Menon @ Mani Vs St. of
Kerala & anr. , (2006) 6 SCC 39

4. Krishna Janardhan Bhat Vs Dattatraya G.
Hegde , (2008) 4 SCC 54

5. Kumar Exports Vs Sharma Carpets , (2009) 2
SCC 513

6. Rangappa Vs Sri Mohan , (2010) 11 SCC 441

7. Dashrath Rupsingh Rathod Vs St. of Mah. ,
MANU/SC/0655/2014

8. R.P. Kapur Vs. St. of Punj. , AIR 1960 SC 866

9. St. of Har. & ors. Versus Ch. Bhajan Lal &
ors. , 1992 Supp.(1) SCC 335

10. St.of Bihar & anr. Vs. P.P. Sharma & anr. ,
1992 Supp (1) SCC 222

11. Zandu Pharmaceuticals Works Ltd. & ors.
Vs. Mohammad Shariful Haque & anr. , 2005 (1)
SCC 122