Satya Prakash alias Lalloo vs Smt. Sushila Devi alias Munni and Another

B.P. Singh, J.—This is an application for revision against the judgment and order dated 30th November, 1988 passed by Additional Sessions Judge, Varanasi in Criminal Revision No. 244 of 1988 (Sushila Devi, alias Munni v. Satya Prakash alias Lalloo).

The facts of the case may briefly be stated as follows:

Smt. Shushila Devi (Opposite party No. 1) was married with Satya Prakash (the applicant) on 19-2-1984 in accordance with Hindu religious rites and ceremonies. Both the parties to the marriage were invalids. Smt. Sushila Devi had only one eye while Satya "Prakash''s left hand was missing.

An application u/s 125 Code of Criminal Procedure was moved by Smt. Sushila Devi in the court of II Munsif Magistrate, Varanasi claiming Rs. 500/- per month by way of maintenance allowance on the ground that due to insufficiency of dowry Satya Prakash was treating her with cruelty and had finally turned her out of the house. She had no means of livelihood and Satya Prakash was bound to provide for her maintenance. The application was opposed by Satya Prakash who, in his written statement, amongst other pleas, had taken the plea that Sushila Devi was living separately from him in pursuance of a registered agreement which was executed by her after receiving a sum of Rs. 10000/- from him. It was also agreed between the parties that Smt. Sushila Devi will have no claim over Satya Prakash and the parties were free to remarry.

During the pendency of the proceedings Smt. Sushila Devi moved an application before the learned magistrate for interim maintenance. This application was supported by an affidavit and it was alleged that he was not possessed of any means as in addition to the daily maintenance she had to meet the expenses of litigation also and for this it was necessary that an interim maintenance of Rs. 300/- per month be granted to her. This application was moved by Smt. Sushila Devi on 21-5-1987. This application was also opposed by Satya Prakash, learned magistrate rejected the application of Smt. Sushila Devi. Aggrieved by the order of the magistrate dated 14-7-1988 Smt. Sushila Devi went in revision and her revision-Criminal Revision No. 244 of 1988 was allowed by II Additional Sessions Judge on 30-11-1988 and an interim maintenance allowance at the rate of Rs. 300/- per month was granted to her. It is against this order that Satya Prakash has come in revision.

I have heard learned Counsel for the parties and have gone through the record of the case. The first contention of the learned Counsel for the applicant was that there was no provision in the Code of Criminal Procedure under which an interim maintenance allowance could be granted to a wife who had come to the court with her claim for maintenance u/s 125 Code of Criminal Procedure. It is no doubt true that Code of Criminal Procedure does not have any provision which empowers the Magistrate to grant interim maintenance allowance to a wife. But the Supreme Court in the case of Savitri Rawat Vs. Govind Singh Rawat, , has laid down that a court trying an application u/s 125 Code of Criminal Procedure has inherent powers to grant interim maintenance provident an application to this effect is moved by the aggrieved party and the said application is supported by an affidavit. In the present case the order of the magistrate dated 14-7-1988 clearly mentions that the application for interim maintenance moved by Smt. Sushila Devi was supported by an affidavit. Thus, where there is no provision in Code of Criminal Procedure for granting an interim maintenance allowance to the wife, the court has power to grant such an interim maintenance allowance in case the court is satisfied that there are sufficient reasons to do so.

The second contention of the applicants'' counsel is that a registered agreement had come in existence on 5-2-1986 under which Smt. Sushila Devi had agreed that parties were to live separately in future and in future they would have no right or claim over each other. It was further agreed by Smt. Sushila Devi that parties were free to re-marry and no legal relationship of husband and wife would remain between the parties. A sum of Rs. 10,000/-was also received by Smt. Sushila Devi. Basing his case upon the contents of this agreement, learned Counsel for the applicant has argued that it was now not open for the wife to claim any maintenance allowance. The above contention has no force. Firstly, I may mention here that this agreement dated 5-2-1986 was not filed by the husband in the courts below. Secondly, the photostat copy of the agreement, which has been filed before me, is quite revealing. A bare glance through the agreement in question would show that it came in existence under some what strange circumstances as would appear from the fact that although page Nos. 1, 2, 4, 5, 6 and 7 are on stamp papers and there are blank spaces upon paper No. 4, 5 and 6 in the upper part of the pages, page No. 3 is upon a plain paper. Learned Counsel for the opposite party No. 1 has challenged the genuineness of this document. The question, if this document was genuine and if genuine what would be the effect of this agreement upon the claim of the wife for maintenance, would be decided at the trial before the concerned magistrate.

Thus, too much reliance cannot be placed upon this agreement while deciding the question of interim maintenance.

Learned Counsel for the opposite party No. 1 has placed relevance upon the case of Sadasivan Pillai v. Vijaylakshmi 1986 (3) Crimes 508. In this case the Kerala High Court has taken the view that even if parties, to whom the provisions of Hindu Marriage Act, 1955 are applicable, are living separately by mutual consent after divorce, the bar contained in Section 125(4) of Code of Criminal Procedure is not applicable and the wife was entitled to claim maintenance from her husband. Section 125(1)(d) clearly provides that the wife, for the purposes of Section 125 of Code of Criminal Procedure, includes a woman who has obtained a divorce from her husband and is not remarried. In the present case there has been no legal divorce as yet and the learned Counsel for the applicant was relying upon the agreement in question. Even if it was considered for the sake of argument that Smt Sushila Devi was no more the legal wife of Satya Prakash, her right of maintenance would be there unless she re-marries.

It may also be mentioned here that the provisions of Section 125 are not dependant upon the religion of a wife. The aim of Section 125 is to safeguard the interest of a wife and to provide for maintenance because in many cases she, by herself, may not be in a position to maintain herself. The aim is to prevent the starvation vagarancy and other such ills. The cases are not wanting where woman, left to themselves with no means to support, have been exploited by unsocial elements of society. In the present case only an interim maintenance has been fixed by the sessions judge after considering all the relevant factors of the case and it cannot be said that learned sessions Judge has; in any way, committed any illegality or has exceeded his jurisdiction.

Under these circumstances the application for revision has no force and is hereby dismissed.