# Mudassir Khan Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-29
- **Case number:** Criminal Revision No. 3154 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mudassir-khan-revisionist-v-state-of-u-p-anr-46496
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Section 125 - Order for maintenance of wives ,
children and parents - power exercised under
Section 397/401 of the Code of Criminal
Procedure is limited - until and unless the order
so challenged therein passed by the Court is
perverse or the view taken by the Court wholly
unreasonable or there is non-consideration of
any relevant material or there is palpable
misreading of record - revisional court is not
justified in interfering with the order that too
merely because also another view is possible.
(Para -8 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 125 - laws relating
to maintenance - measure for social justice
to provide immediate relief to dependent
being wives and children for their family
support so as to prevent them from falling
into destitution and vagrancy - not a matter
of
right
that
a
dependent
can
claim
maintenance under Section 125 Cr.P.C. as
there are certain conditions - strict proof of
marriage should not be a pre-condition for
maintenance under Section 125 of the Cr.P.C
- long cohabitation between woman and man
leads to presumption of marriage entitling
maintenance for woman and children born to
them. (Para - 20,26,30,31)

Wife ( O.P. no.2 ) preferred an application under
Section 125 CrPC - seeking maintenance to the tune
of Rs.15,000/- per month - court below pass the
order granting maintenance to the tune of Rs.5000/-
to O.P. no.2 - from the date of the filing of
application - Aggrieved against the order - hence
revision by Husband (revisionist).

HELD:-Grant
of
a
maintenance
is
beneficial
legislation for the purposes of granting benefit to the
dependent, who are on the verge of the starvation
and who have been meted with a treatment, which
she was never intended to be given . Present case is
not a fit case, wherein this Court may exercise its
jurisdiction under Section 397/401 CrPC while setting
aside the order dated 27.10.2021, hence the present
criminal revision is liable to be dismissed. (Para -
32,34)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

11 All. Mudassir Khan Vs. State of U.P. & Anr.
253

25. A perusal of the judgment in the case
of Ramesh Chandra Srivastava (Supra) itself
reiterates the law laid down by the Hon'ble Apex
Court in the case of Hardeep Singh (Supra). In
the present case, the court finds there were
sufficient materials available with the court
below while exercising the powers u/s 319
Cr.P.C. Thus, this Court further finds that the
court below was satisfied while passing the
order under challenge that it was a fit case
wherein provisions contained u/s 319 Cr.P.C. are
to be invoked.

26. Resultantly, the present revision is
devoid of merit and it is accordingly, dismissed
as this court finds that there has been no
manifest error of law committed by the court
below while passing the order which is under
challenge.
----------
(2021)12ILR A253
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 3154 of 2021

Mudassir Khan ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Brajesh Kumar Solanki

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

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Section 125 - Order for maintenance of wives ,
children and parents - power exercised under
Section 397/401 of the Code of Criminal
Procedure is limited - until and unless the order
so challenged therein passed by the Court is
perverse or the view taken by the Court wholly
unreasonable or there is non-consideration of
any relevant material or there is palpable
misreading of record - revisional court is not
justified in interfering with the order that too
merely because also another view is possible.
(Para -8 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 125 - laws relating
to maintenance - measure for social justice
to provide immediate relief to dependent
being wives and children for their family
support so as to prevent them from falling
into destitution and vagrancy - not a matter
of
right
that
a
dependent
can
claim
maintenance under Section 125 Cr.P.C. as
there are certain conditions - strict proof of
marriage should not be a pre-condition for
maintenance under Section 125 of the Cr.P.C
- long cohabitation between woman and man
leads to presumption of marriage entitling
maintenance for woman and children born to
them. (Para - 20,26,30,31)

Wife ( O.P. no.2 ) preferred an application under
Section 125 CrPC - seeking maintenance to the tune
of Rs.15,000/- per month - court below pass the
order granting maintenance to the tune of Rs.5000/-
to O.P. no.2 - from the date of the filing of
application - Aggrieved against the order - hence
revision by Husband (revisionist).

HELD:-Grant
of
a
maintenance
is
beneficial
legislation for the purposes of granting benefit to the
dependent, who are on the verge of the starvation
and who have been meted with a treatment, which
she was never intended to be given . Present case is
not a fit case, wherein this Court may exercise its
jurisdiction under Section 397/401 CrPC while setting
aside the order dated 27.10.2021, hence the present
criminal revision is liable to be dismissed. (Para -
32,34)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Rajnesh Vs Neha , Criminal Appeal No. 730 of 2020

2. Captain Ramesh Chander Kaushal Vs Mrs. Veena
Kaushal , 1978 (4) SCC 70
254 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Shri Bhagwan Dutt Vs Smt. Kamla Devi Vs anr. ,
(1975) 2 SCC 386

4. Chaturbhuj Vs Sita Bai ,(2008) 2 SCC 316

5. Chanmuniya Vs Virendra Kumar Singh Kushwaha
Vs anr., 2011 (1) SCC 141

6. Kamla Vs others Vs M.R. Mehar , 2019 (2) SCC 491

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri V.K. Solanki, learned counsel
for the revisionist and Sri K.K. Rajbhar, the
learned A.G.A, for O.P. no.1.

2. Challenge in the present revision
purported to be under Section 397/401 of CrPC
is to order dated 27.10.2021 passed by the
Principal Judge, Family Court, Budaun, District
Budaun, in Criminal Case No. 1307/2019, (Smt.
Tabassum Vs. Mudassir), in the proceedings
under Section 125 of CrPC, P.S. Wazirganj,
District Budaun.

3. Brief facts of the case shorn off
unnecessary details set forth in the application
purported to be under Section 125 of CrPC is to
the effect that the O.P. no.2 being Smt.
Tabassum wife of Mudassir Khan and daughter
of Wazir Khan, got married with the applicant
herein on 11.5.2018 according to the rites and
rituals as enshrined under the Muslim Law.
Consequent to the solemnization of the
marriage, the inlaws of O.P. no.2 as well as the
revisionist, who happens to be the husband
demanded dowry as according to them, the gifts,
which the family of the O.P. no.2 had given to
them was not commensurating to the status of
the inlaws. Resultantly, threats were being
sought to be administered upon O.P. no.2 and
she was being harassed in all possible manner.
When the O.P. no.2 narrated the entire story to
her mother, then the mother of O.P. no.2 along
with near relatives approached the revisionist
and their parents requesting them that her
daughter may not be harassed. It is also narrated
in the application purported to be under Section
156(3) CrPC that on 20.9.2018, the inlaws of the
O.P. no.2 as well as the husband of O.P. no.2
being the revisionist took O.P. no.2 to Bombay
on 27.6.2018 and thereafter consequent to return
from Bombay to Sahaswan on 20.9.2018, again
O.P. no.2 administered beating and attempts
were also made to kill her. Again the process of
mediation for creating an environment, whereby
the O.P. no.2 and the revisionist may live
together peacefully, was undertaken. Again on
23.9.2018, at 8:00 O'clock in the morning
beating was administered to O.P. no.2 and all the
jewellery, which was available with the O.P.
no.2 was taken away by the inlaws and she was
ousted from the house with only the cloth, which
she was wearing and she was sent from her
inlaws' place in a hired taxi. Constraint with the
same, the O.P. no.2, thereafter, preferred an
application purported to be under Section 125
CrPC before the court below, which was
numbered as Criminal Case No.1307 of 2019,
CNR No. UPBN 02-001952-2019, seeking
maintenance to the tune of Rs.15,000/- per
month. The said application was presented
before the court below on 28.9.2019. On being
noticed, the revisionist filed its reply refuting the
allegations and the averments contained in the
application under Section 125 CrPC instituted
by O.P. no.2. The O.P. no.2 also filed necessary
documentary evidence in support of her case.
Nonetheless, so far as revisionist is concerned,
he did not submit any documentary evidence
fortifying his stand.

4. Thereafter the court below has now
proceeded to pass the order dated 24.10.2021,
while granting maintenance to the tune of
Rs.5000/- to O.P. no.2 from the date of the filing
of application.

5. Aggrieved against the order dated
27.10.2021 passed by the Court of Principal
Judge, Family Court, Budaun, District Budaun,
11 All. Mudassir Khan Vs. State of U.P. & Anr.
255
in Criminal Case No. 1307/2019, (Smt.
Tabassum Vs. Mudassir), in the proceedings
under Section 125 of CrPC, P.S. Wazirganj,
District Budaun, now the revisionist is before
this Court.

6. Before proceeding further it is apt to
reproduce the provisions contained under
Section 397/401 CrPC, which reads as under: -

"397. Calling for records to exercise
powers of revision.

(1) The High Court or any Sessions
Judge may call for and examine the record of
any proceeding before any inferior Criminal
Court situate within its or his local jurisdiction
for the purpose of satisfying itself or himself as
to the correctness, legality or propriety of any
finding, sentence or order,- recorded or passed,
and as to the regularity of any proceedings of
such inferior Court, and may, when calling for
such record, direct that the execution of any
sentence or order be suspended, and if the
accused is in confinement, that he be released on
bail or on his own bond pending the
examination of the record.

Explanation.- All Magistrates whether
Executive or Judicial, and whether exercising
original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge for
the purposes of this sub- section and of section
398.

(2) The powers of revision conferred
by sub- section (1) shall not be exercised in
relation to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding.

(3) If an application under this section
has been made by any person either to the High
Court or to the Sessions Judge, no further
application by the same person shall be
entertained by the other of them.

401. High Court' s Powers of
revisions.

(1) In the case of any proceeding the
record of which has been called for by itself or
Which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any
of the powers conferred on a Court of Appeal by
sections 386, 389, 390 and 391 or on a Court of
Session by section 307 and, when the Judges
composing the Court of revision are equally
divided in opinion, the case shall be disposed of
in the manner provided by section 392.

(2) No order under this section shall
be made to the prejudice of the accused or other
person unless he has had an opportunity of
being heard either personally or by pleader in
his own defence.

(3) Nothing in this section shall be
deemed to authorise a High Court to convert a
finding of acquittal into one of conviction.

(4) Where under this Code an appeal
lies and no appeal is brought, no proceeding by
way of revision shall be entertained at the
instance of the party who could have appealed.

(5) Where under this Code tan appeal
lies but an application for revision has been
made to the High Court by any person and the
High Court Is satisfied that such application
was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the
interests of justice so to do, the High Court may
treat the application for revision as a petition of
appeal and deal with the same accordingly."

7. A conjoint reading of the provisions
contained under Section 397 as well as 401 of
the Code of Criminal Procedure, it will clearly
reveal that High Court of any Sessions Judge
may call for and examine the record of any
proceedings before any inferior criminal court
situate within its or its local jurisdiction for the
purposes of satisfying itself or himself as to the
correctness, legality or probability of any
finding, sentence or order recorded or passed
and as to the regularity of any proceedings of
such inferior court.

8. It is well settled that the legal
proposition so culled out by the Hon'ble Apex
256 INDIAN LAW REPORTS ALLAHABAD SERIES
Court that the power so exercised under Section
397/401 of the Code of Criminal Procedure is
limited and until and unless the order so
challenged therein passed by the Court is
perverse or the view taken by the Court wholly
unreasonable or there is non-consideration of
any relevant material or there is palpable
misreading of record, the revisional court is not
justified in interfering with the order that too
merely because also another view is possible.

9. In nutshell, the Hon'ble Apex Court has
cautioned the High Court not to act as an
appellate court as the whole purpose of
revisional jurisdiction is to preserve the power in
the court to do justice in accordance with the
principles of criminal procedure.

10. In the light of the principles so
enunciated by the Hon'ble Apex Court or by this
Court, now the present case is to be dealt with.

11. Learned counsel for the revisionist has
made manifold submissions, which are as
under:-

(a) The court below has committed
manifest error of law in awarding maintenance
to the tune of Rs.5000/- per month as there was
no determination of the actual income of the
applicant/revisionist.

(b) The O.P. no.2 (wife) has sufficient
means to sustain herself, thus she is not entitled
to maintenance.

(c) Assuming without admitting that
the O.P. no.2 is entitled to maintenance, then the
same should be from the date of passing of the
order and not from the date of filing of the
application..

12. Learned A.G.A, who appears for O.P.
no.1 has supported the order under challenge,
while contending that there is no error apparent
on the face of record committed by the court
below in passing the order under challenge,
particularly in the proceedings under revisional
jurisdiction has pure finding of fact based on
documentary evidence on record is there.

13. Learned counsel for the revisionist has
firstly argued that the revisionist is a labour,
whose monthly income varies from Rs.7000/- to
8000/- per month and thus the imposition of a
condition for payment of maintenance to the
O.P. no.2 (wife) to the tune of Rs.5000/- is quite
excessive and not commensurate to the income
of the revisionist.

14. In order to buttress the said
submission, the learned counsel for the
revisionist has referred to various paragraphs
of the judgment under challenge so as to
contend that the allegations so sought to be
made by O.P. no.2 to the extent that the
revisionist has a business of effecting POP on
the ceiling as well as a Dharamkanta by the
name of Anjum is factually incorrect. The
court below after analyzing the evidence
available on record in paragraph-35 of the
order dated 27.10.2021, which is under
challenge has taken note of the fact that the
revisionist
during
the
cross-examination
admitted the fact that he has a Dharamkanta
by the name of Anjum Dharamkanta. Further
the court below has also recorded a finding
that the revisionist is a hale and hearty person
having sufficient means to sustain himself and
also to provide maintenance to his wife being
O.P. no.2.

15. The learned counsel for the revisionist
on pointed query made to him could not dispute
the said factual aspect. As from the perusal of
the pleadings setforth before the court below as
before this Court, there is no document to show
that the finding is perverse or incorrect. As
already noticed earlier, this Court cannot
substitute its own finding while upsetting the
finding of the court below, even if another view
is possible. Obviously, exception is to the said
11 All. Mudassir Khan Vs. State of U.P. & Anr.
257
effect that there should be material available on
record to show perversity committed by the
court below.

16. The learned counsel for the revisionist
has next argued that O.P. no.2 (wife) has sufficient
means to sustain herself, and she cannot be made
dependent upon maintenance, which is to be
granted to her by the revisionist. The court below
has dealt with the said issue and in paragraph-22 of
the order under challenge has recorded a
categorical finding that the allegations so made by
the revisionist with regard to the fact that the O.P.
no.2 had taken jewellery and money for running
the business of distribution of milk was found to be
incorrect has the revisionist had completely failed
to produce any document to the said effect. Rather
to the contrary, it was the consistent case of O.P.
no.2 that she is not doing any business and she is
also not well-versed with the art of knitting also.
Accordingly, the court below found it proper to
award her maintenance.

17. Lastly, the learned counsel for the
revisionist has argued that assuming without
admitting that the O.P. no.2 is entitled to
maintenance, then the maintenance can be granted
from the date of passing of the order and not from
the date of the application. The said argument so
raised by the learned counsel for the revisionist
appears to be attractive, but is liable to be rejected,
particularly, in view of the fact that now the
Hon'ble Apex Court in the case of Rajnesh Vs.
Neha decided in Criminal Appeal No. 730 of
2020 on 4.11.2020, has clearly mandated that
maintenance is to be granted from the date of
application and not from the date of the order. The
operative portion of the order dated 4.11.2020 is
quoted hereinunder:-

" Discussion and Directions

The judgments hereinabove reveal the
divergent views of different High Courts on the
date from which maintenance must be awarded.

Even though a judicial discretion is
conferred upon the Court to grant maintenance
either from the date of application or from the
date of the order in S. 125(2) Cr.P.C., it would
be appropriate to grant maintenance from the
date of application in all cases, including
Section 125 Cr.P.C. In the practical working of
the provisions relating to maintenance, we find
that there is significant delay in disposal of the
applications for interim maintenance for years
on end. It would therefore be in the interests of
justice and fair play that maintenance is
awarded from the date of the application.

In Shail Kumari Devi and Ors. v
Krishnan Bhagwan Pathak 2008 9 SCC 632, this
Court held that the entitlement of maintenance
should not be left to the uncertain date of
disposal of the case. The enormous delay in
disposal of proceedings justifies the award of
maintenance from the date of application. In
Bhuwan Mohan Singh v Meena61, this Court
held that repetitive adjournments sought by the
husband in that case resulted in delay of 9 years
in the adjudication of the case. The delay in
adjudication was not only against human rights,
but also against the basic embodiment of dignity
of an individual. The delay in the conduct of the
proceedings would require grant of maintenance
to date back to the date of application.

The rationale of granting maintenance
from the date of application finds its roots in the
object of enacting maintenance legislations, so
as to enable the wife to overcome the financial
crunch which occurs on separation from the
husband. Financial constraints of a dependant
spouse hampers their capacity to be effectively
represented before the Court. In order to
prevent a dependant from being reduced to
destitution, it is necessary that maintenance is
awarded from the date on which the application
for maintenance is filed before the concerned
Court.

In Badshah v Urmila Badshah Godse
(2014) 1 SCC 188 , the Supreme Court was
258 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the interpretation of Section 125
Cr.P.C. The Court held :

"13.3. ...purposive interpretation needs
to be given to the provisions of Section 125
CrPC. While dealing with the application of a
destitute wife or hapless children or parents
under this provision, the Court is dealing with
the marginalised sections of the society. The
purpose is to achieve "social justice" which is
the constitutional vision, enshrined in the
Preamble of the Constitution of India. The
Preamble to the Constitution of India clearly
signals that we have chosen the democratic path
under the rule of law to achieve the goal of
securing for all its citizens, justice, liberty,
equality and fraternity. It specifically highlights
achieving their social justice. Therefore, it
becomes the bounden duty of the courts to
advance the cause of the social justice. While
giving interpretation to a particular provision,
the court is supposed to bridge the gap between
the law and society." (emphasis supplied)

It has therefore become necessary to
issue directions to bring about uniformity and
consistency in the Orders passed by all Courts,
by directing that maintenance be awarded from
the date on which the application was made
before the concerned Court. The right to claim
maintenance must date back to the date of
filing the application, since the period during
which the maintenance proceedings remained
pending is not within the control of the
applicant."

Final Directions

In view of the foregoing discussion as
contained
of
this
judgment,
I
deem
it
appropriate to pass the following directions in
exercise of our powers under Article 142 of the
Constitution of India:-

(a)......................

(b).......................

(c)...........................

(d) Date from which maintenance is
to be awarded

We make it clear that maintenance in
all cases will be awarded from the date of filing
the application for maintenance."

18. Brief background of the statutory
enactments so made from time to time are
germane for adjudication of the controversy in
question and hence the same are reproduced
hereinbelow:-

Section 488 of the Cr.P.C. 1898:-

Section 488-Order of maintenance
of wife & children

"(1) If any person having sufficient
means neglects or refuses to maintain his wife or
his legitimate or illegitimate child unable to
maintain itself, the District Magistrate, a
Presidency
Magistrate,
a
Sub
divisional
Magistrate or 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, at
such monthly rate, not exceeding fifty rupees in
the whole, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate
from time to time directs.

(2) Such allowance shall be payable
from the date of the order, or if so ordered from
the date of the application for maintenance.

(3) If any person so ordered wilfully
neglects to comply with the order, any such
Magistrate may, for every breach of the order,
issue a warrant for levying the amount due in
manner hereinbefore provided for levying fines,
and may sentence such person, for the whole or
any part of each month's allowance 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, 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 mate an order under this
11 All. Mudassir Khan Vs. State of U.P. & Anr.
259
section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

(4) No wife shall he 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) 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.

(6) All evidence under this Chapter
shall be taken in the presence of the husband or
father, as the case may be, or, when his personal
attendance is dispensed with, in the presence of
his pleader, and shall be recorded in the manner
prescribed in the case of summons-cases:

Provided that if the Magistrate is
satisfied that he is wilfully avoiding service, or
wilfully neglects to attend the Court, the
Magistrate may proceed to hear and determine
the case ex parte. Any order so made may be set
aside for good cause shown, on application
made within three months from the date thereof.

(7) The accused may tender himself as
a witness, and in such case shall be examined as
such.

(8) The Court in dealing with
applications under this section shall have power
to make such order as to costs as may be just.

(9) The accused may be proceeded
against in any district where he resides or is, or
where he last resided with his wife, or, as the
case may be, the mother of the illegitimate
child."

Section 125(1) of the Cr.P.C. 1973

(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

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 not exceeding
five hundred rupees 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:

Section
125
Cr.P.C.
1973
as
amended w.e.f. 24.9.2001 -

Section 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 1[***] 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.
260 INDIAN LAW REPORTS ALLAHABAD SERIES

[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 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.";]

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 port of each
month's 4[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 4[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.

STATE AMENDMENTS

Uttar Pradesh:

"(6) where in a proceeding under this
section it appears to the Magistrate that the
person claiming maintenance is in need to
immediate relief for his support and the
necessary expenses of the proceeding, the
Magistrate may, on his application, order the
person against whom the maintenance is
claimed, to pay to the person claiming the
11 All. Mudassir Khan Vs. State of U.P. & Anr.
261
maintenance, during the pendency of the
proceeding
such
monthly
allowance
not
exceeding five thousand rupees and such
expenses of the proceeding as the Magistrate
consider reasonable and such order shall be
enforceable as an order of maintenance."

19. The incorporation of the provisions
pertaining to maintenance has been well
recognized and the provisions so contained
under Section 488 of the Cr.P.C. 1898 which is a
pre-constitution enactment has been given
recognition and endorsed while giving it up
proper place and status in Section 125 of the
Cr.P.C., 1973.

20. The laws relating to maintenance have
been enacted as a measure for social justice to
provide immediate relief to dependent being
wives and children for their family support so as
to prevent them from falling into destitution and
vagrancy.

Article 15(3) of the Constitution of
India provides that:

"Nothing in this article shall prevent
the State from making any special provision for
women and children."

21. Thus it can be safely said that the
Constitution of India, 1950 has envisaged a
devise setting up a positive role for the State in
fostering change towards the empowerment of
women leading to amendment in various
legislation and introduction of new legislation.

22. As noticed earlier the pre-constitutional
law being the Code of Criminal Procedure, 1898
relating to Section 488 has been followed in
Section 125 Cr.P.C. before its amendment in the
year 2001 as in other words it can be said that
Section 125 Cr.P.C. is an incarnation of Section
488 of the old Act except the fact that now
parents also are brought into category of persons
eligible for maintenance and further legislative
cognizance has also been taken of the
devaluation of the rupees and escalation of
living cost by raising maximum allowance from
100 to 500. However, now after amendments
made in the year 2001 the ceiling limit for
maintenance has been done away.

23. The Hon'ble Supreme Court in the case
of Captain Ramesh Chander Kaushal Vs.
Mrs. Veena Kaushal reported in 1978 (4) SCC
70 in para 9 has observed as under:-

"9. This provision is a measure of
social justice and specially enacted to protect
women and children and falls within the
constitutional sweep of Article 15(3) reinforced
by Article 39. We have no doubt that sections of
statutes calling for construction by Courts are
not petrified print but vibrant words with social
functions to fulfil. The brooding presence of the
constitutional empathy for the weaker sections
like
women
and
children
must
inform
interpretation if it has to have social relevance.
So viewed, it is possible to be selective in
picking out that interpretation out of two
alternatives which advance the cause--the cause
of the derelicts."

24. The basic idea behind insertion of the
provisions relating to grant of maintenance is to
prevent vagrancy and destitution of the
dependents so as to create an atmosphere
whereby a dependent is not allowed to starve or
lead a life which cannot be termed to be a
respectable living.

25. Section 125 of the Cr.P.C. is a selfcontained code which finds presence under
Chapter IX of 1973 Code for the aid of wife,
children
and
parents
in
the
matter
of
maintenance that to in summary proceedings.
Maintenance under Section 125 of the Cr.P.C.
can be claimed by a person irrespective of
belonging to any religious community and the
object of the said Section is to provide
262 INDIAN LAW REPORTS ALLAHABAD SERIES
immediate relief to an applicant meaning
thereby that it is a beneficial legislation in
favour of the dependents.

26. It is not a matter of right that a
dependent can claim maintenance under Section
125 Cr.P.C. as there are certain conditions. It is
further not matter of mere asking that the
maintenance can be claimed by a dependent as
for the said purpose, there are certain prerequisite conditions which have to be satisfied
namely;

(i) the husband must have sufficient
means;

(ii) the husband neglects to maintain
his wife, who is unable to maintain herself

27. Yet the Hon'ble Supreme Court in the
case of Shri Bhagwan Dutt Vs. Smt. Kamla
Devi and another reported in (1975) 2 SCC
386 while dealing with the
provisions
contained under Section 488 of the old Act
held as under:-

"20. The object of these provisions
being to prevent vagrancy and destitution, the
Magistrate has to find out as to what is
required by the wife to maintain a standard of
living
which
is
neither
luxurious
nor
penurious, but is modestly consistent with the
status
of
the
family.
The
needs
and
requirements of the wife for such moderate
living can be fairly determined, only if her
separate income, also, is taken into account
together with the earnings of the husband and
his commitments."

28. The Hon'ble Apex Court had even
put a caveat and has cautioned that the
proceeding under Section 125 of the Cr.P.C.,
1973 is not with an object to punish a person
but prevent vagrancy by compelling who can
provide support to those who are unable to
support themselves.

29. Hon'ble Supreme Court in the case of
Chaturbhuj Vs. Sita Bai (2008) 2 SCC 316 in
para 6 has observed as under:-

6. 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. The phrase
"unable to maintain herself" in the instant case
would mean that means available to the deserted
wife while she was living with her husband and
would not take within itself the efforts made by
the wife after desertion to survive somehow.

Section 125 Cr.P.C. is a measure of
social justice and is specially enacted to protect
women and children and as noted by this Court
in Captain Ramesh Chander Kaushal v. Mrs.
Veena Kaushal and Ors (1978) 4 SCC 70) falls
within constitutional sweep of Article 15(3)
reinforced by Article 39 of the Constitution of
India, 1950. It 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. It gives effect to fundamental
rights and natural duties of a man to maintain
his wife, children and parents when they are
unable to maintain themselves. The aforesaid
position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005) 3
SCC 636.

30. Reiterating the principles of law as laid
down in the aforesaid decisions the Hon'ble
Apex Court in the case of Chanmuniya Vs.
Virendra Kumar Singh Kushwaha and
another 2011 (1) SCC 141 has even gone into
the
marital
status
with
regard
to
long
cohabitation and in para 42 observed as under :-

"42. We are of the opinion that a
broad and expansive interpretation should be
given to the term 'wife' to include even those
11 All. Mishri Lal Vs. State of U.P. & Anr.
263
cases where a man and woman have been living
together as husband and wife for a reasonably
long period of time, and strict proof of marriage
should not be a pre-condition for maintenance
under Section 125 of the Cr.P.C., so as to fulfil
the true spirit and essence of the beneficial
provision of maintenance under Section 125.We
also believe that such an interpretation would be
a just application of the principles enshrined in
the preamble to our Constitution, namely, social
justice and upholding the dignity of the
individual."

31. In the case of Kamla and others Vs.
M.R. Mehar reported in 2019 (2) SCC 491 the
Hon'ble Apex Court has gone to the extent that
long cohabitation between woman and man
leads to presumption of marriage entitling
maintenance for woman and children born to
them.

32. Hence it can be safely said that the
grant of a maintenance is beneficial legislation
for the purposes of granting benefit tot he
dependent, who are on the verge of the
starvation and who have been meted with a
treatment, which she was never intended to be
given.

33. Further no other point has been raised
by the learned counsel for the revisionist.

34. Looking in the totality of the matter,
this Court finds that the present case is not a fit
case, wherein this Court may exercise its
jurisdiction under Section 397/401 CrPC while
setting aside the order dated 27.10.2021, hence
the present criminal revision is liable to be
dismissed.

35. The revision is accordingly dismissed.

36. No order as to cost.
----------
(2021)12ILR A263
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2021

BEFORE

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

Criminal Revision No. 3260 of 2021

Mishri Lal ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Kamal Dev Rai

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

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Sections 307, 504 - a
person whose name does not appear even in
the FIR or in the charge-sheet or whose name
appears in the FIR and not in the charge-sheet,
can still be summoned by the court provided
the conditions under the section stand fulfilled.
(Para - 7 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - Power to
proceed against other persons appearing to be
guilty of ofence - discretionary and an extraordinary power - doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when
guilty is acquitted) - Section 319 CrPC allows
the court to proceed against any person who is
not an accused in a case before it..(Para - 3)

Revisionist named in F.I.R. - assigned a role in the
incident - testimony of P.W.-1 and P.W.-2 - indicative
of the complicity of the revisionist - present at spot -
licensed weapon of the revisionist used by principal
accused for causing firearm injuries - court below
summoned revisionist under section 319 Cr.P.C. - on
an application moved by opposite party no.2 - hence
revision.

HELD:-The power under Section 319 of the Code to
summon even those persons who are not named in