# Smt. Kanchan Rawat & Anr v. State of U.P. & Anr. 540 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 7 ILRA 539
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-11
- **Case number:** Application U/S 482. No. 10718 of 2024
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kanchan-rawat-anr-v-state-of-u-p-anr-540-indian-law-reports-allahabad-series-52233
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 125, 125(3), 126, 127,
128 & 482 - Constitution of Indian,1950 -
Article 32, 226 & 227- Application U/s 482
Cr.P.C. - with a prayer to direct the Family court
below to pass appropriate order in a Case filed
u/s 125 Cr.P.C. as well as direction to pay the
interim maintenance allowance - preliminary
objection
-
regarding
maintainability
of
Application - court finds that, the purpose of
section 125 of Cr.P.C is to achieve a social
purpose in society - proceeding under section
125 Cr.P.C. is quasi Civil and quasi Criminal -
section 128 Cr.P.C provides for enforcement of
order of maintenance - against any quasi civil or
quasi criminal order no writ petition under
Article 226 of the COI or any application under
section
482
Cr.P.C
respectively
will
be
maintainable - consequently, present application
is dismissed - however, applicant to approach
the proper remedy available under section 128
of the Cr.P.C before the same court. (Para - 20,
23, 25, 29, 30)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

Radhey Shyam & anr. Vs Chhabi Nath &
ors.(2015-5-SCC-423),

## Text

7 All. Smt. Kanchan Rawat & Anr. Vs. State of U.P. & Anr.
539

(c) where an offence is a
continuing one, and continues to be
committed in more local areas than one, or

(d) where it consists of several
acts done in different local areas, it may be
inquired into or tried by a Court having
jurisdiction over any of such local areas.

6. Above submissions are opposed by
Sri D.P.S. Chauhan, learned A.G.A. that
complainant is a resident of DistrictGhaziabad and she after being deserted was
staying there only as such in view of
Sections 177 and 178 Cr.P.C. as referred
above, Court at District-Ghaziabad has
jurisdiction to summon the applicant.

7. In order to consider rival
submissions, I have carefully perused other
relevant Sections i.e. Section 182 (2)
Cr.P.C. also which states as under:

"182. Offence committed by
letters, etc.-(1) xxx

(2) Any offence punishable under
section 494 or section 495 of the Indian
Penal Code (45 of 1860) may be inquired
into or tried by a Court within whose local
jurisdiction the offence was committed or the
offender last resided with his or her spouse
by the first marriage, or the wife by the first
marriage has taken up permanent residence
after the commission of the offence."

8. I have carefully perused, material
available along with present application
that complainant was residing at the given
address at District-Ghaziabad for last many
years after being left by the applicant.

9. The Court also takes note of an
application
filed
by
applicant
under
provisions of Section 13 of Hindu Marriage
Act for dissolution of marriage where,
address of complainant is shown at
District--Ghaziabad.
Similarly
in
a
settlement agreement also, same address
has been mentioned, as such it is evident
that complainant is permanently residing at
the given address at District Ghaziabad,
therefore, in view of Section 182 (2) of
Cr.P.C. as referred above, Court within its
local jurisdiction, wife by first marriage has
taken up permanent residence after the
commission of offence punishable under
Sections 494 or 495 I.P.C, has jurisdiction,
i.e. in present case in District-Ghaziabad,
therefore, objection of learned counsel for
applicant in regard to jurisdiction has no
merit.

10. Court also takes note of contents of
statement of complainant recorded under
Section 200 and statement of witnesses
recorded under Section 202 Cr.P.C. as well as
order dated 3.3.2021 whereby applicant has
been summoned for an offence under
Sections 491, 406 and 506 I.P.C. and is of the
considered opinion that there are sufficient
ground to proceed against applicant and in
this regard Court takes note of judgment
passed by Supreme Court in Lalankumar
Singh and others vs. State of Maharashtra,
2022 SCC OnLine SC 1383.

11. Accordingly, this application has
no force and is hereby rejected.
----------
(2024) 7 ILRA 539
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2024

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application U/S 482. No. 10718 of 2024

Smt. Kanchan Rawat & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
540 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicants:
Azad Khan

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 125, 125(3), 126, 127,
128 & 482 - Constitution of Indian,1950 -
Article 32, 226 & 227- Application U/s 482
Cr.P.C. - with a prayer to direct the Family court
below to pass appropriate order in a Case filed
u/s 125 Cr.P.C. as well as direction to pay the
interim maintenance allowance - preliminary
objection
-
regarding
maintainability
of
Application - court finds that, the purpose of
section 125 of Cr.P.C is to achieve a social
purpose in society - proceeding under section
125 Cr.P.C. is quasi Civil and quasi Criminal -
section 128 Cr.P.C provides for enforcement of
order of maintenance - against any quasi civil or
quasi criminal order no writ petition under
Article 226 of the COI or any application under
section
482
Cr.P.C
respectively
will
be
maintainable - consequently, present application
is dismissed - however, applicant to approach
the proper remedy available under section 128
of the Cr.P.C before the same court. (Para - 20,
23, 25, 29, 30)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

Radhey Shyam & anr. Vs Chhabi Nath &
ors.(2015-5-SCC-423),

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Heard Mr. Azad Khan, the learned
counsel for the applicant and the learned
A.G.A. for the State as well as perused the
record.

2. Prayer made in this application

This application under Section 482
Cr.P.C. has been filed with a prayer to
direct the court of Principal Judge, Family
Court, Ghazipur to pass appropriate order
in Misc. Case No. 57 of 2015 (Kanchan
Rawat Vs. Braijlal Rawat) under Section
125
Cr.P.C.,
Police
Station-Kotwali
Ghazipur, District-Ghazipur and also for a
direction upon the above court to pay the
interim maintenance allowance of Rs.
80,000/- in favour of the applicants in the
interest of justice.

3. Matrix of the Case

The marriage of applicant no. 1,
namely, Kanchan Rawat was solemnized
with the opposite party no. 2, namely,
Brijlal Rawat in accordance with Hindu
Rites and Rituals on 01.12.2009. In the said
marriage, father of the applicant no. 1 had
expend 7 to 8 Lakhs rupees. After
marriage, both the couple used to live
together with love, peace and pleaser as
husband and wife. When such additional
demand of dowry was not fulfilled, the inlaws of applicant no.1 used to torture and
harass her and the relationship between
husband and wife became strained and
incompatible and resultantly, she left the
house of her in-laws and started living at
her parental house during which she
delivered a male child, namely, Gaurav
Kumar on 2nd November, 2011. Applicant
no.1 and her parents made best effort to
convince the in-laws of applicant no.1 to
maintain her and her son but they could not
do the same. Resultantly, she filed a case
under Section 125 Cr.P.C. before the Court
of the Principal Judge, Family Court,
Ghazipur, which was registered as Misc.
Case No. 57 of 2015 (Kanchan Rawat Vs.
Brijlal) for grant of maintenance. The
applicant no. 1 had also moved an interim
maintenance application bearing no. 15B
before the court of Principal Judge, Family
Court, Ghazipur, which was allowed and a
direction has been issued to opposite party
no. 2 to pay Rs. 4,000/- per month to the
7 All. Smt. Kanchan Rawat & Anr. Vs. State of U.P. & Anr.
541
applicants towards maintenance allowance,
during the pendency of the case vide order
dated 27.06.2017. In compliance of the
interim order passed by the Family Court
dated 27th June, 2017, opposite party no.2
paid the interim maintenance allowance to
the applicants regularly till December,
2021 but in the year 2022, he stopped the
payment of such interim maintenance
allowance, as directed by the Family Court.
Whereafter
the
applicants
made
an
application before the Principal Judge,
Family Court for payment of interim
maintenance
allowance.
On
such
application being made, opposite party
no.2, after laps of one and half year, had
given Rs. 4,000/- to the applicants in the
court
but
arrears
of
such
interim
maintenance allowance to the tune of Rs.
80,000/- as on 17th December, 2023 has
not been paid by opposite party no.2 to the
applicants. As a result whereof, the
Principal Judge, Family Court directed
opposite party no.2 to give Rs. 10,000/- per
month
to
the
applicants
as
interim
maintenance allowance towards monthly
interim maintenance allowance of Rs.
4,000/- and arrears of interim maintenance
allowance of Rs. 80,000/-. However,
thereafter opposite party no.2 neither gave
arrears of interim maintenance allowance
of Rs. 80,000/- nor paid Rs. 10,000/- per
month towards maintenance allowance to
the applicants.

4. Now the applicants have approached
this Court by means of instant application
under Section 482 Cr.P.C. to pass appropriate
orders in Misc. Case No. 57 of 2015
(Kanchan Rawat Vs. Braijlal Rawat) under
Section 125 Cr.P.C., Police Station-Kotwali
Ghazipur, District-Ghazipur as also to direct
opposite party no.2 to pay the arrears of
interim maintenance allowance to the tune of
Rs. 80,000/- to the applicants.

5. Before considering the present
application on merits by the Court, learned
A.G.A. has raised preliminary objection to
the
maintainability
of
the
present
application under Section 482 Cr.P.C. by
submitting that basically the applicants by
means of the present application seek for
execution of the interim order granted by
the Principal Judge, Family Court awarding
interim maintenance allowance in a case
instituted under Section 125 Cr.P.C. but
this Court in exercise of powers under
Section 482 Cr.P.C. cannot pass such order
for execution of an order passed under
Section 125 Cr.P.C which is a self-code
and a judicial order. He, therefore, submits
that
the
present
application
is
not
maintainable and liable to be dismissed.
The proper remedy available to the
applicants was file an application under
Section 128 Cr.P.C. for execution of an
order passed under Section 125 Cr.P.C.

6. In reply, the learned counsel for the
applicants submits that since the order
passed by the Principal Judge, Family
Court
awarding
interim
maintenance
allowance in favour of the applicants in a
case under Section 125 Cr.P.C. is an
interim order, therefore, no execution
application can be filed under Section 128
Cr.P.C. As such, the present application
under Section 482 Cr.P.C. is maintainable.

7. I have considered the submissions
advanced on behalf of the learned counsel
for the parties and have gone through the
records of the present application.

8. The issue which crops up before
this Court is as to whether the present
application under Section 482 Cr.P.C.
basically filed for execution of an order
passed under Section 125 Cr.P.C. is
maintainable or not?
542 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Before coming to the above issue,
it would worthwhile to reproduce Section
125 Cr.P.C. For ready reference, the same
is quoted hereunder:

"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 [* *
*]

[The words "not exceeding five
hundred rupees in the whole" omitted by
Act 50 of 2001, w.e.f. 24.9.2001.], 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 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. [Inserted by Act
50 of 2001, Section 2 (w.e.f. 24-9-2001).]

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 for 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.] [Substituted by Act 50 of 2001, Section
2 (w.e.f. 24-9-2001).]

(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,] [Substituted by Act 50 of 2001,
Section 2 for "allowance" (w.e.f. 24-9-
7 All. Smt. Kanchan Rawat & Anr. Vs. State of U.P. & Anr.
543
2001).]
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,]
[Substituted by Act 50 of 2001, Section 2
for "allowance" (w.e.f. 24-9-2001).] 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.

in sub-section (1), for the words
"five hundred rupees", substitute, "five
thousand rupees";

Vide U.P. Act No. 36 of 2000
following has been amended in Section 125
Cr.P.C. in the State of Uttar Pradesh:

(a) in sub-section (1), for the
words "five hundred rupees", substitute,
"five thousand rupees";

(b) after sub-section (5), insert
the following sub-section, namely :-

"(6) Where in a proceeding under
this section it appears to the Magistrate
that the person claiming maintenance is in
need of 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 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."

10. Section 125 of the Criminal
Procedure
Code
provides
for
the
maintenance to the wife, children, and
parents. The court after the party has
invoked Section 125 of the Code, may
order the respondent, that is the husband, to
maintain the wife who is unable to maintain
herself by providing monthly maintenance
to her. However, there is an exception in
the provision. For the purpose of providing
maintenance to the wife, the husband has to
be sufficient enough to support his wife
after the separation and at the same time,
the wife must not be living in adultery or
living separately with her husband without
any sufficient reasons. Even if they are
living separately in mutual consent, then
also the wife will not be entitled to any sort
of maintenance. Whenever the judgment is
passed in favour of the wife, the court has
to make sure that the husband has sufficient
544 INDIAN LAW REPORTS ALLAHABAD SERIES
means to provide maintenance to the wife.
The court also needs to make sure that the
wife after the separation does not have
enough money to maintain herself.

11. The aim and object of this
provision

Under Section 125 of the code, the
provision
is
available
for
interim
maintenance which means that during the
pendency of an application in the court of
law, the order may be passed by the
Magistrate directing the husband to pay the
monthly allowances to the wife. However,
the Magistrate has the right to alter the
amount of the maintenance to be paid, if he
thinks that there is a change in the
circumstances of the individual who has
been paying or receiving the monthly
allowances. All such applications of
maintenance can be filed in any district
where the person who is liable to pay
resides or where the wife resides or where
the person last resided with the wife or with
the mother or with the illegitimate child.
The purpose of Section 125 of CrPC is to
achieve a social purpose in society.

The purpose of Section 125 CrPC
was explained in the case of K. Vimal Vs.
K. Veeraswamy reported in 1991 SCC (2)
375 where it was held that Section 125 of
the Code had been introduced for achieving
a social purpose. The aim of this section is
the welfare of the wife by providing her
with the required shelter, food after the
separation from the husband. It was held in
this case that if the wife has lived like a
wife and the husband had treated her like a
wife for all the years before their
separation, then, the wife cannot be denied
maintenance by her husband.

Grants of maintenance are a
metric of social justice. A man's essential
obligation is to provide for his wife, kids,
parents, close relatives, etc, while they are
incapable of providing for themselves.
Preventing immorality and poverty while
improving the economic standing of
women and children is the motive behind
the concept of maintenance. The Cr.P.C.
requirements obligate a person to fulfil the
moral duty which he owes the community
in regard to his wife, children and parents.
The obligation is unquestionably lawful
and binding on the person.

All communities in India are
subject to the Cr.P.C's. provisions, and
therefore are very much secular, safe and
all-encompassing in character and apply to
all faiths, castes and creeds. Whatever
personal law is used to guide and control
the
respective
persons
affected,
the
provisions of Section 125 of the Cr.P.C. are
enforceable. However, procedures provided
under Section 125 of Cr.P.C. are of a
summary nature and apply to everyone
regardless of caste, creed, or religion.
Maintenance can be sought under the
individual personal laws of people of
different religions, and processes under
such personal laws are civil in nature.

The provision found in Chapter
IX of Cr.P.C. seeks to shield the neglected
wife, parent and children (minor) from
complete ruin and destitution through a
straightforward,
quick
and
effective
restricted relief. Section 125 of CrPC offers
a swift solution to prevent famine and
social unrest. It differs from a husband's
civil liability. It serves as a straightforward
summary procedure. It puts into practice a
man's fundamental obligation to support
his wife, kids and elderly parents who are
self-supporting.

The fundamental tenets of the
maintenance stance under Section 125 of
the Cr.P.C. is that no wife, young children,
or elderly parents should be left without
and succumb to complete pressure of wants
7 All. Smt. Kanchan Rawat & Anr. Vs. State of U.P. & Anr.
545
in order to be persuaded to resort to crimes,
etc. A Magistrate of the First Class may
take swift action to avoid poverty under a
provision in Section 125 of the Cr.P.C.

12. Purpose of Section 125 Cr.P.C

The intent behind Section 125 of the
Cr.P.C. is to protect dependents who are
unable
to
support
themselves
from
starvation, misery and vagrancy. It is social
justice legislation that was specifically
passed to safeguard women, children and
elderly parents.

The main goal of Section 125 of
the Cr.P.C. of 1973 is to support abandoned
and impoverished wives, neglected and
abandoned children, and vulnerable, elderly
and disabled parents. As a result, this
provision promotes social welfare and
social service. The Magistrate's authority is
primarily preventative in character rather
than penal or punitive.

The
time-consuming,
troublesome, heavy, process of civil law
and litigation was sought to be avoided by
providing a simple, quick, limited relief.
This is because compulsion is (to some
extent) imposed upon those persons whose
duty it is to support their dependents who
are unable to support themselves.

No wife, child, or parent should
be abandoned on the scrap heap of society
to beg or to lure others to commit crimes
against
them
or
to
commit
crimes
themselves. A contract that violates this
responsibility and totally waives the right
to support one's own wife and young
children cannot be regarded as legal.

13. Features of Section 125 Cr.P.C.

Previously, while discussing legal
terms that have been used in making up
Section 125, some of the features that will
be discussed below have already been
referred to. Readers will therefore now be
able to understand the features of the
maintenance provision better.

14. Need for sufficient means for
maintenance

The most important requirement is that
a person cannot be ordered to pay
maintenance to another person unless they
themselves have 'adequate resources to
support' the person who has the claim and
neglects or refuses to do so. The person
asserting that he lacks sufficient means to
sustain has the burden of evidence. The fact
that he is unemployed does not excuse him
from the requirement. In the instance of
Hardev Singh And Anr. vs The State Of
Punjab reported in 1975) 3 SCC 731, the
Apex Court held that if a person cannot pay
such maintenance allowance because he is
a monk, then it is his obligation to cast off
the yellow robe and labour. The High
Courts
have
been
tougher
in
their
interpretation. The social justice component
and the protection of the society's weaker
members, namely, women, children, and
the elderly, are cited as the causes of this
interpretation.

15. Neglect and refusal to be
maintained

The term 'neglect' fundamentally
refers to a disregard of responsibility that
may be either unintentional or purposeful
and is used to refer to a failure to maintain
even when no such demand is made against
the maintainer. Whereas, the 'refusal' to
maintain occurs when there is a clearly
stated purpose to not carry out his
responsibility. This intention may be
expressed or even suggested by the
husband's behaviour. The claimant has the
onus of establishing this. The requirement
that the wife lives with her husband is
initially necessary for her to be able to
546 INDIAN LAW REPORTS ALLAHABAD SERIES
claim maintenance, but if the Magistrate
finds that she has a valid reason for doing
so for instance, if her husband has taken in
a new wife and if it is ritually permitted by
their personal law, the condition may be
removed from her claim.

16. Quantum of maintenance

Up until the Amendment Act No. 50
of 2001, the Magistrate was obligated to
grant maintenance not to exceed Rs. 500.
There isn't a cap on the maximum amount,
instead, the Magistrate is free to decide the
monthly rate in accordance with the
circumstances of the case. The rate can
occasionally be changed in accordance with
Section 127, but it must be fixed,
predictable, and not gradually growing. If
both the wife and the child are suing the
same individual, it is against the law to pay
them both jointly, instead, each has a
distinct claim that can be paid separately.

17. Claimant of maintenance under
Section 125 must be unable to maintain
himself/herself:

The incapacity of a woman to
support herself is one of the requirements
for claiming maintenance. She need not
expressly request that she be allowed to
care for herself. However, if the woman is
healthy, educated, and still unable to
support herself, she may still request
maintenance, but the amount awarded to
her will depend on these circumstances.

18.

In
Section
126
Cr.P.C.,
procedures for institution of any case under
Section 125 Cr.P.C. have been prescribed,
whereas in Section 127 Cr.P.C., alteration
in allowance has been provided.

19. For deciding the present issue, it
would be worthwhile to reproduce Section
128 Cr.P.C. wherein enforcement or
execution of order of maintenance to be
passed under Section 125 Cr.P.C., as the
case may be, has been provided. For ready
reference Section 128 Cr.P.C. reads as
follows:

"128. Enforcement of order of
maintenance.--A copy of the order of
[maintenance or interim maintenance and
expenses of proceedings, as the case may
be] shall be given without payment to the
person in whose favour it is made, or to his
guardian, if any, or to the person to [whom
the allowance for the maintenance or the
allowance for the interim maintenance and
expenses of proceeding, as the case may
be] is to be paid; and such order may be
forced by any Magistrate in any place
where the person against whom it is made
may be, on such Magistrate being satisfied
as to the identity of the parties and the nonpayment of the [allowance, or as the case
may be, expenses, due]."

20. Bearing that (provisions above
Sections) in mind, let me state that a
proceeding under Section 125 Cr.P.C. is
quasi civil and quasi criminal. It is civil in
nature, since, it decides the civil rights of
the parties to claim maintenance. When the
order is not obeyed by the person against
whom the same has been made, then the
Court
is
empowered
to
impose
a
punishment of imprisonment for every
breach of the order for a term which may
extend to one month or until payment is
sooner is made. To that extent, it is
criminal
in
nature.
To
put
it
comprehensively, the proceeding is quasi
civil and quasi criminal in nature.

21. Where an order is passed directing
to pay maintenance, the party in whose
favour such an order has been passed has
7 All. Smt. Kanchan Rawat & Anr. Vs. State of U.P. & Anr.
547
got two options. The first one is the party
can choose to approach the Court under
Section 125 (3) Cr.P.C. requesting the
Court to punish the defaulter by imposing
appropriate imprisonment; the second one
is to approach the Court under Section 128
of Cr.P.C.

22. A comparison of Sections 125 (3)
and 128 of Cr.P.C. would keep things beyond
any doubt that insofar as the proceeding
under Section 125 (3) is concerned, the
statute has prescribed a period of limitation of
one year, whereas in respect of a proceeding
under Section 128 of Cr.P.C., there is no
limitation provided at all. It follows,
therefore, by the terms of the statute, that, for
initiating a proceeding for enforcing an order
by invoking Section 128 of Cr.P.C., I find no
provision providing for limitation as it is
provided in respect of proceedings under
Section 125(3) of Cr.P.C.

23. Chapter IX of the Code of Criminal
Procedure hereinafter referred as the 'Code' in
its Section 128 provides for enforcement of
order of maintenance, but how was the order
to be enforced has not been provided.

24. Section 128 Cr.P.C. only provides
for furnishing of copy of the order. It also
provides that such order could be enforced by
any Magistrate at any place where the person
against whom it was made may be, which
only means that any Magistrate of the place
where the person may be may enforce the
order on being satisfied, about the identity of
the parties and also that the dues had not been
paid. As said before how was the due to be
recovered i.e. the procedure was not
provided.

25. I have no room to doubt that the
High Court Article 226 of the Constitution
of India in civil matters and under Section
482 Cr.P.C. in criminal matters has
extraordinary
power
to
examine
the
correctness or otherwise of any orders
passed by civil courts, as the case may be.
However, against any quasi judicial civil
order or any quasi judicial criminal order,
no writ petition under Article 226 of the
Constitution of India or any application
under Section 482 Cr.P.C. respectively will
be maintainable. Against such order, only
revision or petition under Article 227 of the
Constitution of India will be maintainable.

26. The Hon'ble Apex Court in the
case of Radhey Shyam & Another Vs.
Chhabi Nath & Others reported in (2015)
5 SCC 423 in paragraph no.18 has opined
that challenge to judicial orders could lie by
way of an appeal or revision or under
Article 227 of the Constitution of India and
not by way of a writ under Article 226 and
32 of the Constitution of India.

27. I may further refer to paragraph
nos. 11 and 25 of the above judgement of
the Hon'ble Apex Court, wherein it has
been clarified that orders of the judicial
courts like civil courts stand on different
footing from the quasi-judicial orders of the
authorities or tribunals or courts other than
judicial/civil courts. In paragraph no.25, the
Hon'ble Apex Court has further opined that
the expression "inferior court" is not
referable to the judicial courts.

28. For ready reference paragraph 25
of the above judgment reads as follows:

"It is true that this Court has laid
down that technicalities associated with the
prerogative writs in England have no role
to play under our constitutional scheme.
There is no parallel system of King's Court
in India and of all other courts having
limited jurisdiction subject to supervision
548 INDIAN LAW REPORTS ALLAHABAD SERIES
of King's Court. Courts are set up under
the Constitution or the laws. All courts in
the jurisdiction of a High Court are
subordinate to it and subject to its control
and supervision under Article 227. Writ
jurisdiction is constitutionally conferred on
all High Courts. Broad principles of writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction
orders
of
Tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India for
High Courts to issue writs to subordinate
courts. Control of working of subordinate
courts in dealing with their judicial orders
is exercised by way of appellate or
revisional
powers
or
power
of
superintendence under Article 227. Orders
of civil court stand on different footing
from the orders of authorities or Tribunals
or courts other than judicial/civil courts.
While appellate or revisional jurisdiction is
regulated
by
statutes,
power
of
superintendence under Article 227 is
constitutional. The expression "inferior
court" is not referable to judicial courts, as
rightly observed in the referring order in
paras 26 and 27 quoted above."

29. From bare perusal of the provisions
of Sections 125 to 128 Cr.P.C. as also the
judgment of the Hon'ble Apex Court in the
case of Radhey Shyam (Supra), I am of the
view that since the order passed by the
Principal Judge, Family Court, granting
interim maintenance to the applicants in a
proceeding under Section 125 Cr.P.C. is a
quasi judicial civil and criminal order, no
application under Section 482 Cr.P.C. either
for quashing the same or for enforcing the
same, is maintainable.

30.

Consequently,
the
present
application filed by the applicants for
enforcing the order passed by the Family
Court
granting
interim
maintenance
allowance to them is dismissed. The proper
remedy available to the applicants to
approach the Family Court under Section
128 Cr.P.C. before the same court.

31. This judgment is also being
written in Hindi as well as in Sanskrit
languages and the copies of the same shall
also be attached along with this judgment.
----------
(2024) 7 ILRA 548
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 11672 of 2024

M/s Parthas Textiles & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nikhil Mishra

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 420 - Cheating and
dishonestly inducing delivery of property,
The Code of criminal procedure, 1973 -
Section 63 - Service of summons on
corporate bodies and societies, Section
305 - Procedure When corporation or
registered society is an accused - A
company arraigned as accused in a
complaint is served summons through its
Principal Officer or Local Manager (Section
63 Cr.P.C.) - Company can then appoint a
representative to appear in court, who will
be examined on its behalf, the proceeding
before him would be deemed to be the