# Smt. Parul Tyagi v. Gaurav Tyagi

- **Citation:** (2023) 10 ILRA 403
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-04
- **Case number:** Matters Under Article 227 No. 8162 of 2023
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-parul-tyagi-v-gaurav-tyagi-49340
- **Pages:** 30

## Headnote

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
Code of criminal procedure, 1973 - Section
125 - Order for maintenance of wives,
children and parents, Section 128 -
Enforcement of order of maintenance -
law principle of "coverture" - Husband's
duty to support his wife - treated a
married couple as a single legal entity,
with the husband as head - maintenance
is a constitutional right and an element of
universal human rights - If the wife is
earning, it cannot operate as a bar from
being
awarded
maintenance
by
the
husband - Obligation of the husband to
provide maintenance stands on a higher
pedestal than the wife. (Para - 14
15,16,,44,54)

(B) The Constitution of India, 1950 -
Article 141, 144 - Section 125 Cr.P.C. is a
measure of social justice and is specially
enacted to protect women and children
falls within constitution sweep of Article
15(3) re-enforced by Article 39 of the
Constitution of India - Article 136 read
with Article 142 - uniform format of
Affidavit of Disclosure of Assets and
Liabilities to be filed in maintenance
proceedings. (Para -25, 38)

(C) The Code of Criminal Procedure, 1973
- Section 125 - Maintenance - order of
maintenance may be enforced like a
decree of a civil court
-
Contempt
proceedings for wilful disobedience may
be initiated before the appropriate court -
duty of High Courts to ensure that the
sub-ordinate
judiciary
under
their
supervision follows the law of the land.
(Para - 9, 54)

Petitioner filed an application for maintenance -
remained pending for four years and nine
months - respondent-husband challenger order -
leading to an execution petition - case was
listed 39 times - petitioner-wife sought early
disposal - court deemed it appropriate to create
mechanisms
for
sub-ordinate
courts
(in
background of Rajnesh Case) - to grant
maintenance,
pay
interim
maintenance,
determine maintenance quantum, and enforce
Family Court orders - allow for quicker
enforcement of maintenance orders - prevent
the need for multiple petitions for maintenance.
(Para - 32)

HELD:- Woman can't be denied alimony only
because she is working. Subordinate courts may
differ from higher courts' legal precedents,
leading to confusion and injustice. High Courts
may issue mandatory injunctions to maintain
the integrity of the legal system and ensure fair
and consistent justice across the board, despite
their independence. Rajnesh Case highlights the
importance of comprehensive guidelines for
Family Court Judges to effectively enforce
Supreme Court orders.(Para -44,83,87)

Petition disposed off. (E-7)

LIST OF CASES CITED:-

## Text

_Characters 0–39,953 of 97,113. This is a partial read: ask again with offset=39953 for what follows._

10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
403
Commercial Court at Lucknow rejecting
the objections filed by the petitioner.
Accordingly, the present applications are
dismissed.
----------
(2023) 10 ILRA 403
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2023
BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Matters Under Article 227 No. 8162 of 2023
(Criminal)

Smt. Parul Tyagi ...Petitioner
Versus
Gaurav Tyagi ...Respondent

Counsel for the Petitioner:
Sri Rajiv Sisodia, Sri Virendra Singh Tomar

Counsel for the Respondent:

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
Code of criminal procedure, 1973 - Section
125 - Order for maintenance of wives,
children and parents, Section 128 -
Enforcement of order of maintenance -
law principle of "coverture" - Husband's
duty to support his wife - treated a
married couple as a single legal entity,
with the husband as head - maintenance
is a constitutional right and an element of
universal human rights - If the wife is
earning, it cannot operate as a bar from
being
awarded
maintenance
by
the
husband - Obligation of the husband to
provide maintenance stands on a higher
pedestal than the wife. (Para - 14
15,16,,44,54)

(B) The Constitution of India, 1950 -
Article 141, 144 - Section 125 Cr.P.C. is a
measure of social justice and is specially
enacted to protect women and children
falls within constitution sweep of Article
15(3) re-enforced by Article 39 of the
Constitution of India - Article 136 read
with Article 142 - uniform format of
Affidavit of Disclosure of Assets and
Liabilities to be filed in maintenance
proceedings. (Para -25, 38)

(C) The Code of Criminal Procedure, 1973
- Section 125 - Maintenance - order of
maintenance may be enforced like a
decree of a civil court
-
Contempt
proceedings for wilful disobedience may
be initiated before the appropriate court -
duty of High Courts to ensure that the
sub-ordinate
judiciary
under
their
supervision follows the law of the land.
(Para - 9, 54)

Petitioner filed an application for maintenance -
remained pending for four years and nine
months - respondent-husband challenger order -
leading to an execution petition - case was
listed 39 times - petitioner-wife sought early
disposal - court deemed it appropriate to create
mechanisms
for
sub-ordinate
courts
(in
background of Rajnesh Case) - to grant
maintenance,
pay
interim
maintenance,
determine maintenance quantum, and enforce
Family Court orders - allow for quicker
enforcement of maintenance orders - prevent
the need for multiple petitions for maintenance.
(Para - 32)

HELD:- Woman can't be denied alimony only
because she is working. Subordinate courts may
differ from higher courts' legal precedents,
leading to confusion and injustice. High Courts
may issue mandatory injunctions to maintain
the integrity of the legal system and ensure fair
and consistent justice across the board, despite
their independence. Rajnesh Case highlights the
importance of comprehensive guidelines for
Family Court Judges to effectively enforce
Supreme Court orders.(Para -44,83,87)

Petition disposed off. (E-7)

LIST OF CASES CITED:-

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

2. Kusum Sharma Vs Mahinder Kumar Sharma,
(2017) SCC Online Del 11796
404 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Chaturbhuj Vs Sita Bai, (2008) 2 SCC 316

4. Capt. Ramesh Chander Kaushal Vs Veena
Kaushal , 1978 4 SCC 70

5. Savitaven Somabhai Bhatia Vs St. of Guj. ,
2005 3 SCC 636

6. Rajnesh Case Vs Neha & anr. (2021) 2 SCC
324

7. Menka Ghandi Vs U.O.I. , (1978) 1 SCC 248

8. Vishaka Vs St. of Raj , (1997) 6 SCC 241

9. D.K. Basu Vs St. of W.B. , (1997) 1 SCC 416

10. J.J.C. Vs U.O.I. , (2017) 8 SCC 705

11. Medha Kotwal Lele & ors. Vs U.O.I. & ors., (2013)
1 SCC 311

12. N.L.S.A. Vs U.O.I. , (2014) 5 SCC 438

13. Sheela Barse Vs St. of Maha. , (1983) 2 SCC 96

14. Jasbir Kaur Sehgal Vs District Judge, Dehradun,
(1997) 7 SCC 7

15. Vinny Parmvir Parmar Vs Parmvir Parmar,(2011)
13 SCC 112

16. Reena Salkan Vs Sumer Singh Salkan, (2019) 12
SCC 303

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

18. Sunita Kachwah Vs Anil Kachwaha , (2014) 16
SCC 715

19. Shamima Farooqui Vs Shahid Khan , (2015) 5
SCC 705

20. Chandra Prakash Vs Shila Rani, (1968) SCC online
Del 52

21. Badshah Vs Urmila Badshah Godse , (2014) 1
SCC 188

22. Sushila Viresh Chhadva Vs Viresh Nagshi Chhadva
,(1995) SCC Online Bom 315

23. Rajnesh Vs Neha , (2021) 2 SCC 324
24. Satendra Kumar Antil Vs C.B.I. & anr. , (2023)
SCC Online SC 758

25. Moti Lal Vs St.through Smt. Sagarwati, AIR 1952
AII 558

26. TNG Kumar Vs St.of kerala & ors. , (2011) 2 SCC
772

27. Jasbir Singh Vs St. of Punj. , (2006) 8 SCC 294

28. Krishna Beni Nigam Vs Harish Nigam , (2017) 4
SCC 150

29. Cognizance for Extension of Limitation, In-re;
(2020) 9 SCC 468

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Shri Rajiv Sisodia, learned
counsel for the petitioner and perused the
record.

2. This petition stems from a series of
miscellaneous ineffective orders passed by the
Principal Judge, Family Court, Muzaffarnagar
in O.S. No.976/11 of 2022. The petitioner has
invoked Article 227 of the Constitution of India,
seeking a direction to expedite disposal of the
aforesaid O.S. No.976/11 of 2022 titled as
Parul Tyagi Vs. Gaurav Tyagi. For clarity,
the relief sought before this Court is
outlined below:

"i. Issue an order or direction,
directing the Principal Judge, Family
Court No.2, Muzaffarnagar to expedite
proceeding of Original Suit No.976/11 of
2022 (Parul Vs. Gaurav), under Section
128 Cr.P.C.

ii. Issue any other order or
direction which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of this case."

A. Brief Facts and Background of
The Case
10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
405

3. The petitioner, Smt. Parul Tyagi,
entered
into
matrimony
with
the
respondent,
Gaurav
Tyagi,
on
17th
February, 2009, adhering to Hindu rituals
and ceremonies in Muzaffarnagar, Uttar
Pradesh.
During
the
marriage,
the
petitioner's family spent approximately
Rs.15 lacs, and dowry items were presented
to the respondent's family within their
means. Subsequently, the respondent and
his family subjected the petitioner to both
mental and physical torment, demanding an
additional dowry of Rs.5 lacs. No child was
born from this union. In an attempt to meet
the in-laws' demands, the petitioner's family
gave Rs.50,000/- twice and even gave/gifted a
RITZ car; however, the demands remained
unsatisfied. Following this, the respondent and
his family expelled the petitioner from their
residence, issuing threats to kill her if she failed
to give Rs.5 lacs. Since then, the petitioner has
been residing with her parents.

4. The petitioner claims that she has been
living with her parents since 23.7.2017, and is
unable to sustain herself. Her husband does not
support her or pay maintenance to meet-out her
daily chores. The petitioner contends that her
husband earns almost Rs.26 lacs a year,
whereas, even though she is doctorate from IIT,
but is unemployed and finding it hard to
sustain herself; besides these contentions, other
disputed facts have also been raised by both the
parties before the Principal Judge, Family
Court, Muzaffarnagar (hereinafter referred to as
the "Family Court").

5. By order dated 10.5.2022, the learned
Family
Court
awarded
maintenance
of
Rs.20,000/- per month since 22.8.2017, i.e. the
date of filing of the application under section
125 Cr.P.C.

6. The husband-respondent challenged
the order dated 10.5.2022 before this Court in
Criminal Revision No.2780 of 2022. This
Court, vide order dated 17.5.2023, dismissed
the aforesaid revision petition and upheld the
order passed by the Family Court. The relevant
portion is extracted herein below:

"1. Learned counsel for revisionist
and learned counsel for opposite party no.2 are
present.

2. This Criminal Revision has been
preferred against order dated 10.05.2022
passed by Additional Principal Judge, Family
Court, Court No.2, Muzaffarnagar in Case
No.510 of 2017 (Smt. Parul Tyagi vs. Gaurav
Tyagi) by which application under Section 125
Cr.P.C. has been allowed and revisionist has
been directed to pay Rs.20,000/- per month as
maintenance allowance from the date of
application i.e. 22.08.2017 and amount
deposited by the revisionist as maintenance in
other case shall be adjusted.

3. Learned counsel for revisionist
submitted that there is no question of quantum.
Revisionist is working as General Manager and
opposite party no.2 is a highly educated lady
doing PhD. from I.I.T., Delhi and at present
doing research in I.I.T., Roorkee and getting
Rs.50,000/- per month and Rs.2,00,000/-
annually for research purpose. She was also
posted in Lovely Professional University,
Jalandhar, Punjab as Assistant Professor from
where she has resigned. It is also submitted that
there is no child between the parties and
Rs.15,000/- has been paid by the revisionist
under Section 24 of Hindu Marriage Act for
maintenance and litigation. Case under Section
13 of Hindu Marriage Act has also been filed
by the revisionist. Income tax return of the
opposite party no.2 has also been filed and
in the income tax return income of opposite
party
no.2
has
been
shown
above
Rs.6,00,000/-. It is further submitted that
Rs.6,80,000/- has already been deposited in
favour of opposite party no.2 up till
February, 2023.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for opposite
party no.2 submitted that opposite party
no.2 is doing research work in I.I.T.,
Roorkee and the amount of money received
by the opposite party no.2 is with regard to
research work. At present she is not doing
any job and Rs.16,00,000/- is due on
revisionist.

5. As revisionist is giving Rs.15,000/-
to opposite party no.2 under Section 24 of
Hindu Marriage Act which is adjusted towards
this payment, remaining amount to be paid by
the revisionist is only Rs.5,000/- per month after
deducting the amount paid under Section 24 of
Hindu Marriage Act. Amount to be paid by the
revisionist in this maintenance case is a meager
amount of Rs.5,000/-. Revisionist is working as
General Manager and getting a handsome
salary.

6.
In
the
present
facts
and
circumstances, there appears no illegality,
material irregularity or manifest error in the
impugned order. Interference by this Court is
not required in this case. Both the parties are
highly educated and may settle their dispute
peacefully. This Criminal Revision lacks merit
and is liable to be dismissed.

7.
Accordingly,
this
Criminal
Revision is dismissed."

7. Because of the non-payment of the
maintenance, the petitioner preferred O.S.
No.976/11 of 2022, under Section 128 Cr.P.C.,
for the realisation of the maintenance. The
instant case was, first time, listed on 17.8.2022,
and since then, the matter has been listed before
the Family Court as many as 39 times, and
aggrieved by ineffective orders passed by the
Family Court, the petitioner has preferred the
present petition.

8. For the sake of clarity, it is judicious to
have a comprehensive overview over the facts
of the case:

a. On 17.9.2009, marriage between
the parties was solemnised as per Hindu rites
and customs.

b. Since 23.7.2017, the petitionerwife has been residing with her parents.

c. On 22.8.2017, the petitioner-wife
preferred an application under section 125
Cr.P.C. before the Family Court for the award
of maintenance.

d. On 10.5.2022, after a long and
arduous hearing of four years and nine
months,
the
Family
Court
awarded
maintenance of Rs.20,000/- per month to the
petitioner-wife.

e. On 26.6.2022, the respondenthusband preferred a Criminal Revision
No.2780 of 2022 before this Court for setting
aside the judgment and order dated 10.5.2022
passed by the Family Court.

f. On 17.5.2023, the aforesaid
criminal revision was dismissed.

g. On 17.8.2022, the petitionerwife preferred O.S No.976/11 of 2022, under
Section 128 Cr.P.C., before the Family Court,
and since then, the aforesaid O.S. is
pending disposal.

h. On 28.7.2023, aggrieved by
thirty-nine ineffective orders by the Family
Court, the petitioner preferred the instant
petition
under
Article
227
of
the
Constitution of India seeking a direction for
expeditious disposal of the proceeding
under section 128 Cr.P.C., pending before
the Family Court.

9. From the time when the petitionerwife initially approached the Family Court
under
Section
125
Cr.P.C.
for
a
maintenance order on 22nd August, 2017,
until the filing of the captioned petition
under Article 227 of the Constitution of
India, nearly six years have been elapsed.

B. Submissions of the Petitioner
10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
407

10. Shri Rajiv Sisodia, learned
counsel appearing on behalf of the
petitioner-wife,
made
the
following
submissions:

a. On 17.9.2009, the petitionerwife married the respondent-husband as per
Hindu rites and ceremonies at Jai Hind
Inter College, Kasba Charthawal, District
Muzaffarnagar, and the parents of the
petitioner expended nearly Rs.15 lacs in the
solemnisation of marriage, besides the
amount expended on other necessary
arrangements.

b. Since the in-laws were not
happy with the dowry brought by the
petitioner-wife, they raised an additional
demand of Rs.5 lacs and started to harass
the petitioner to build up pressure to meet
out the said demand. The parents of the
petitioner gave Rs.50,000/- each on two
occasions to the in-laws and also purchased
a RITZ car to their satisfaction after the
solemnisation of the marriage.

c. The petitioner contends that her
husband is incapable of conceiving his
wife. She requested her husband and inlaws to seek a medical opinion for curing
her husband's incapacity as would be
advised by the doctor. Rather than visiting
a doctor, the petitioner-wife was taunted for
not delivering a child.

d. On 23.7.2017, the petitionerwife was thrown out of her matrimonial
house after beating her, and since then, she
has been living with her parents at her
parental house.

e. The respondent-husband is a
bodily abled person and has done an M.Sc.
in Agriculture and an MBA. To supplement
his arguments, the counsel further submits
that the respondent-husband is working as a
General Manager in Papertech Nova X
Company situated at B-10, Sec-9, HUDA
City Centre, Gurugram, Haryana, and also
earning a handsome amount from real
estate and share market.

f. The order dated 10.5.2022
passed by the Family Court has not been
complied by the respondent-husband till
date, and the petitioner-wife is facing
financial hardship and is unable to maintain
herself.

g. The Family Court is passing
routine ineffective orders, which in-effect,
are causing further financial distress to the
petitioner-wife.

h. Section 125 Cr.P.C. read with
Section
128
Cr.P.C.
have
lost
its
constitutional
objectivity
in
factscircumstances of the case and invites this
Court's power of superintendence over all
courts in relation to which it exercises its
jurisdiction.

11. Before I discuss the law and its
application, I must say that a delay in the
disposal of cases erodes public faith in the
judicial process. The idea of awarding
maintenance is based on the principle of
ensuring financial support for spouses, who
may not have the means to support
themselves. The intent to provide instant
financial stability is to prevent any undue
hardship to the impecunious spouse.

C. Constitutional Objectivity of
Section 125 Cr.P.C. and Purposive
Interpretation

12. Section 125 Cr.P.C., provides for
maintenance of wives, children and parents
if any person has sufficient means still
neglect or refuses to maintain- his wife, his
legitimate
or
illegitimate
child,
his
legitimate or illegitimate child (not being a
married daughter), who has attained
majority and by reason or any physical or
mental abnormality or injury unable to
maintain herself, and or her father or
408 INDIAN LAW REPORTS ALLAHABAD SERIES
mother, who is unable to maintain
himself/herself.

13.

In
the
current
context,
maintenance, referred to as spousal support
or alimony, represents a legal duty wherein
one spouse is obligated to offer financial
support to the other after separation or
divorce. The underlying principle of
maintenance
is
to
alleviate
the
repercussions of a marriage dissolution,
especially when one spouse has relied on
the other for financial support throughout
the marriage. This obligation may persist
even after divorce, subject to specific
conditions
established
by
statutory
regulations or judgments.

14.

Historically,
English
law
recognised a husband's duty to support his
wife, rooted in the common law principle
of "coverture", which treated a married
couple as a single legal entity, with the
husband as head. However, as societal
norms evolved, so did the legal landscape,
leading to changes in spousal maintenance.

15. The origins of coverture can be
traced back to medieval times when society
was largely hierarchical. Under feudalism,
women were considered the property of
their fathers until they were transferred to
their husbands upon marriage. This transfer
of ownership was legally formalised
through coverture, which subsumed in the
wife's legal entity into that of her
husband's.

16. The common law principle of
coverture began to erode in the 19th
century as legal reforms and social
movements gained traction. In England,
landmark legislation such as the Married
Women's Property Act of 1870 and
subsequent Acts granted married women
limited property rights and the ability to
own
property
separately
from
their
husbands.

17. Prior to Married Women's
Property Rights Act, 1874, and Indian
Succession Act, 1865 with regard to
maintenance and inheritance of property by
women in colonial India, historically,
marriage is considered a sacred and
essential institution in India. The marriage
is considered a samskara, one of the sacred
rites
of
passage. The
institution
of
marriage, as described in the ancient text,
reflects a complex interplay of social,
spiritual
and
familial
responsibilities.
Historical
norms
often
circumscribed
women's rights, there are references for
provisions for allotment of property for
wives in Ya'jnyawlcya1 text. Their rights to
property, maintenance and respect were
recognised. The husband's solemn duty was
to maintain a wife during her lifetime, and
there was no concept of divorce. The wife
was entitled in the share of the husband's
estate after his demise, according to old
Hindu Dharmshashtra.

18. In 1868, the British Parliament
introduced the Married Women's Property
Bill, which aimed to grant married women
the same legal rights as unmarried women.
After two years of revisions, the Parliament
passed the Married Women's Property Act
of
1870.
This
landmark
legislation
permitted the married women to retain
control over their earnings and investments
independently of their husbands, inherit
modest sums, hold property acquired
through rental or inheritance from close
family members, and established joint
parental
liability
for
their
children.
However, it should be noted that despite
these advances, married women still did not
enjoy complete financial independence, as
10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
409
the majority of their finances and property
were still legally under the control of their
husbands. Additionally, these provisions
applied only to marriages contracted after
the Act's implementation, leaving women
already married without the ability to
reclaim their property rights.

19. In the Indian context, the Married
Women's Property Act of 1874 was an
extension of similar principles, but adapted
to address the distinct cultural and social
norms prevailing in colonial India. These
legislative advancements were part of a
broader global movement in the 19th
century
aimed
to
recognizing
and
promoting women's rights.

20. In India, the maintenance of a
wife or spouse, in general, is governed by
statutes, case laws and equity principles. As
societal norms continuity evolved, the
concept of spousal maintenance continued
to be adopted, ensuring that it remains
relevant and just in the ever-changing
landscape of family law.

21. Section 125 Cr.P.C., as amended
from time to time, and State amendment2
provides for immediate relief for his/her
support and necessary expenses of the
proceedings during the pendency of the
proceedings as such monthly allowance and
such expenses of the proceedings as the
court consider reasonable, and such order
shall be enforceable as an order of
maintenance.

22. In case of spouse, the purpose and
object of Section 125 Cr.P.C. is to provide
immediate relief to an applicant. An
application under Section 125 Cr.P.C. is
predicated on two conditions; i) the
husband has sufficient means, ii) and
"neglects" to maintain his wife, who is
unable to maintain herself. The relevant
portion of section 125 Cr.P.C, and Code of
Criminal
Procedure
(Uttar
Pradesh
Amendment Acts, 1999, 2000 & 2011) is
extracted herein below;

"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 rate1* *
* 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
410 INDIAN LAW REPORTS ALLAHABAD SERIES
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
part of each months 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 wifes refusal to
live with him.

(4) No wife shall be entitled to
receive an 5[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 in 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

In section 125 of the Code of
Criminal Procedure, 1973, hereinafter
referred to as the principal Act -

(a) in sub-section (1), for the
words "five hundred only" the words "five
thousand only" shall be substituted.

(b) after sub-section (5), the
following sub-section shall be inserted,
namely:- "(6) Where in a proceeding
10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
411
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, in
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.

[Vide Uttar Pradesh Act 36 of
2000, s. 2]

Uttar Pradesh

In section 125 of the Code of
Criminal Procedure, 1973 as amended in
its application to Uttar Pradesh hereinafter
referred to as the principal Act in subsection (6) the words "not exceeding five
thousand rupees" shall be omitted.

[Vide Uttar Pradesh Act 15 of
2011, s. 2]"

23. Section 125 of Cr.P.C. was
conceived to alleviate the agony, anguish,
and financial suffering of a woman who has
left her matrimonial home for the reasons
set-forth in the provision so that the court
can make appropriate arrangements for her
and her children if they are with her. The
term "sustenance" does not always imply
that one is living an animal's existence. She
has the legal right to conduct her life in the
same manner as she would have in her
husband's home3.

24.

The
maintenance
is
a
constitutional right and an element of
universal human rights. The purpose of
paying maintenance is twofold; i) First, to
prevent vagrancy as a result of strained
husband-wife relationships, ii) and to
guarantee that the poor litigating spouse is
not crippled as a result of a lack of funds to
defend or prosecute the case4.

25. The object of maintenance
proceeding 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
support5. Section 125 Cr.P.C. is a measure
of social justice and is specially enacted to
protect women and children falls within
constitution sweep of Article 15(3) reenforced by Article 39 of the Constitution
of India, and the object of maintenance is
to prevent the vagrancy and destitution of a
deserted wife by providing her food,
clothing, and shelter through a speedy
remedy6. It gives effect to fundamental
rights and natural duties of a man to
maintain his wife, children and parents who
are unable to maintain themselves7.

26. Where the personal income of the
wife
is
insufficient
she
can
claim
maintenance under section 125 CrPC. The
test is whether the wife is in a position to
maintain herself in the way she was used to
in the place of her husband5.

27. The Supreme Court has got the
occasion to frame cogent and wellstructured
guidelines
in
celebrated
judgement of Rajnesh Case v. Neha and
another8, the Supreme Court considered
the framing of guidelines in certain aspects
pertaining to grant of maintenance/interim
maintenance against a person having
sufficient means, and neglect or refuse to
maintain his wife, children and parents.
There are different statutes providing for
making an application for grant of
maintenance/interim maintenance, which
provides an independent and distinct
412 INDIAN LAW REPORTS ALLAHABAD SERIES
remedy
with
specific
objective
and
purpose. The Supreme Court by invoking
extraordinary power vests under Article
136 & 144 of the Constitution of India,
issued comprehensive guidelines to the
Family Courts.

28. The Rajnesh Case (supra) is not a
stand-alone case where the Supreme Court
has exercised its power enshrined under
Article 136 read with Article 142 of the
Constitution of India, to issue guidelines.

29. Over the years, the Supreme Court
has adverted to several landmark judgments
that
have
significantly
impacted
the
interpretation and application of Article 141
of the Constitution of India. In Menka
Gandhi Case9, the Supreme Court has
expanded the scope of Article 141 and laid
down the principle that the procedure
established by law must be reasonable, fair
and just. The judgment re-enforced the
principles of judicial review and the court's
role
in
interpreting
and
protecting
fundamental rights. In Vishaka Case10, the
Supreme
Court
has
laid
down
the
guidelines to prevent and address sexual
harassment in the work place. Again in the
celebrated judgment of D.K. Basu Case11
the
Supreme
Court
has
laid
down
guidelines to prevent custodial torture and
protected the rights of the arrested
individuals. The Supreme Court issued
guidelines for the implementation of the
Juvenile Justice (Care and Protection of
Children) Act, 2015 in the Juvenile Justice
Committee Case12. Medha Kotwal Lele
Case13 led to the formulation of guidelines
for ensuring proper implementation of the
Right to Education Act, 2009. In National
Legal Service Authority Case14, the
Supreme Court issued guidelines for the
protection of the rights of a transgender
individual, recognising their rights to selfidentification
and
protection
from
discrimination. Likewise, in Sheela Barse
Case15,
the
Supreme
Court
issued
guidelines for the inhumane treatment of
women prisoners, including pregnant and
lactating women and children in jails.

30. It's important to note that when
the Supreme Court provides guidelines in
the judgments, the interpretation and
uniform application of these guidelines by
sub-ordinate courts may vary in special
facts-circumstances of the case, but the
binding nature of these guidelines ensures
that they are considered and, uniformly and
consistently followed by lower courts in
their decision-making process.

31. In spite of the time-frame being
scribed by the various statutes and
guidelines by the Supreme Court for
disposal
of
interim
applications,
the
Constitutional Courts noticed, in the vast
majority of the cases, the applications are
not disposed off within the time frame
prescribed. Such a lackadaisical approach
of the subordinate courts invited the
attention of the Supreme Court in Rajnesh
Case
(supra),
and
by
invoking
extraordinary powers under Article 136
read with Article 142 of the Constitution of
India, issued well-structured guidelines to
the sub-ordinate courts.

32. In the instant case, the petitioner
had filed an application under section 125
Cr.P.C. for the award of maintenance,
which remained pending before the court
for about four years and nine months. The
respondent-husband challenged the order
passed by the learned Family Court through
Criminal Revision No.2780 of 2022, and
after dismissal by this Court, the petitionerwife filed an execution petition for
compliance of enforcement of order dated
10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
413
10.5.2022, the case was listed as many as
39
times.
Aggrieved
by
ineffective
hearings, the petitioner-wife preferred a
petition
under
Article
227
of
the
Constitution of India seeking early disposal
of the aforesaid execution petition. The
petitioner-wife
was
forced
to
move
successive petitions before the court for
award of maintenance time to time. In the
foregoing, this Court deems it appropriate
to devise certain mechanisms for the subordinate courts in the background of
Rajnesh Case (supra), enabling the courts
to grant of maintenance, payment of
interim
maintenance,
criteria
of
determining the quantum of maintenance
and speedy enforcement of the order of
maintenance passed by Family Courts.

33. The Supreme Court in Rajnesh
Case (supra), in the opening paragraph, has
administered the philosophy behind the
enactment of maintenance laws in India.
The relevant portion of the judgment is
extracted herein below:

"13. Maintenance laws have been
enacted as a measure of social justice to
provide recourse to dependent wives and
children for their financial support, so as to
prevent them from falling into destitution
and
vagrancy. Article
15(3)
of
the
Constitution of India provides that:

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

Article 15(3) reinforced by Article
39 of the Constitution of India, which
envisages a positive role for the State in
fostering change towards the empowerment
of women, led to the enactment of various
legislations from time to time.

14. Krishna Iyer, J. in his
judgment in Ramesh Chander Kaushal v.
Veena Kaushal [Ramesh Chander Kaushal
v. Veena Kaushal, (1978) 4 SCC 70: 1978
SCC (Cri) 508] held that the object of
maintenance laws is: (SCC p. 74, para 9)

"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 advances the
cause- the cause of the derelicts."

34. Part B of the Rajnesh Case
(supra) deals with general guidelines and
directions to the Family Courts containing
the issue of overlapping of jurisdiction of
the Family Courts created in respect of
statutory
provisions
under
various
enactments viz;

i. Special Marriage Act, 1954,
Hindu Marriage Act, 1955, Hindu Adoption
Act, 1956, Section 24 Cr.P.C., and
Protection of Women from Domestic
Violence Act, 2005.

ii.
Payment
of
interim
maintenance,

iii.
Criteria
for
determining
quantum of maintenance

iv. Date from which maintenance
to be awarded

v.
Enforcement
of
order
of
maintenance

vi. Final directions

35. In the wake of Rajnesh Case
(supra), it's high time to deliberate upon
414 INDIAN LAW REPORTS ALLAHABAD SERIES
the measures that need to be adopted by the
Family Courts for early disposal of the
interim
maintenance/maintenance
application, and enforcement of the order
of maintenance so passed.

36. Despite the statutory provisions
granting a time-bound period for disposal
proceedings for interim maintenance, the
Supreme
Court
observed
that
the
applications remained pending for several
years in most cases. The delays are caused
by various factors, such as tremendous
docket pressure on the Family Courts,
repetitive adjournments sought by the
parties,
enormous
time
taken
for
completion of pleadings at the interim stage
itself, etc. The pendency of applications for
maintenance at the interim stage for several
years defeats the very object of the
legislation.

37. The Supreme Court in para-65 of
the Rajnesh Case (supra) observed the
requirement of pleadings and inter-alia
held as under:

"65.The
party
claiming
maintenance either as a spouse, or as a
partner
in
a
civil
union,
live-in
relationship, common law marriage, should
be required to file a concise application for
interim
maintenance
with
limited
pleadings, along with an Affidavit of
Disclosure of Assets and Liabilities before
the court concerned, as a mandatory
requirement. On the basis of the pleadings
filed by both parties and the Affidavits of
Disclosure, the court would be in a position
to make an objective assessment of the
approximate
amount
to
be
awarded
towards maintenance at the interim stage."

38. While deliberating upon the
various facets of the issues that may
preclude courts from passing reasoned
orders, framed necessary guidelines by
invoking powers vests under Article 136
read with Article 142 of the Constitution of
India. A need for a uniform format of
Affidavit of Disclosure of Assets and
Liabilities to be filed in maintenance
proceedings invited the attention of the
court, and thus, the Supreme Court framed
the following guidelines:

"72.1.
(a)
The Affidavit
of
Disclosure
of
Assets
and
Liabilities
annexed at Enclosures I, II and III of this
judgment, as may be applicable, shall be
filed by the parties in all maintenance
proceedings,
including
pending
proceedings
before
the
Family
Court/District Court/Magistrate's Court
concerned, as the case may be, throughout
the country;

72.2. (b) The applicant making
the claim for maintenance will be required
to file a concise application accompanied
with the Affidavit of Disclosure of Assets;

72.3. (c) The respondent must
submit the reply along with the Affidavit of
Disclosure within a maximum period of
four weeks. The courts may not grant more
than two opportunities for submission of
the Affidavit of Disclosure of Assets and
Liabilities to the respondent. If the
respondent delays in filing the reply with
the affidavit, and seeks more than two
adjournments for this purpose, the court
may consider exercising the power to strike
off the defence of the respondent, if the
conduct is found to be wilful and
contumacious in delaying the proceedings
[Kaushalya v. Mukesh Jain, (2020) 17 SCC
822 : 2019 SCC OnLine SC 1915] . On the
failure to file the affidavit within the
prescribed time, the Family Court may
proceed to decide the application for
maintenance on the basis of the affidavit
10 All. Smt. Parul Tyagi Vs. Gaurav Tyagi
415
filed by the applicant and the pleadings on
record;

72.4. (d) The above format may
be modified by the court concerned, if the
exigencies of a case require the same. It
would be left to the judicial discretion of
the court concerned to issue necessary
directions in this regard.

72.5. (e) If apart from the
information contained in the Affidavits of
Disclosure, any further information is
required, the court concerned may pass
appropriate orders in respect thereof.

72.6.