1. Heard learned counsel for the petitioner and learned counsel for the opposite party.
2. Petitioner, in the present case, is aggrieved by and dissatisfied with the order dated 08.12.2017 passed in Maintenance Case No. 296/2013 passed
by learned Principal Judge, Family Court, Purnea whereby and whereunder the learned Family Court has been pleased to dismiss the maintenance
case.
3. Learned counsel for the petitioner submits that the impugned order suffers from illegality and infirmity inasmuch as the learned Principal Judge,
Family Court has refused to allow any amount of maintenance to the applicant â€" wife on the solitary ground that she has not come herself to depose
in course of evidence and therefore the deposition of the witnesses in her support would not carry any weight.
4. Learned counsel submits that on a bare perusal of the application under Section 125 Cr.P.C. (Annexure ‘1’), it would appear that the said
application was duly supported by an affidavit.
5. In response thereto the husband â€" opposite party admitted in his reply that he had performed a second marriage with a widow but his allegation
was that the applicant â€" wife had refused to serve the old aged parents of the husband and had been living in her Naihar. This allegation of the
husband â€" opposite party was made to oppose the case of the applicant â€" wife that she had been in fact ousted from the matrimonial house after
her husband brought a Sautan in the matrimonial home and she was being tortured by her husband and the Sautan.
6. Learned counsel further submits that admittedly the husband â€" opposite party is working as a compounder and is employed in the clinic of a
private physician doctor. It is his submission that the applicant has got two minor children. It is lastly submitted that in support of the case of the
applicant three witnesses had been examined and because of unawareness and lack of legal advise she was not examined in course of evidence. It is,
however, his submission that a proceeding under Section 125 Cr.P.C. is a summary proceeding and on the face of the statement of the applicant duly
supported by her affidavit and the deposition of the three witnesses, the case of the petitioner could not have been rejected on the solitary ground that
she had not come herself to depose.
7. Learned counsel further submits that a provision for maintenance under Section 125 Cr.P.C. has been brought in the statute book to take care of
the neglected women having no income to maintain herself. It is based on the principle of equity as well. Those women facing hardship in her life are
provided some succor in a summary proceeding. According to him, perhaps, the learned Principal Judge, Family Court, Purnea has failed to take note
of the object and purpose behind providing such a provision under the Cr.P.C.
8. This application has been contested by learned counsel for the opposite party no. 2. It is submitted that the learned Family Court has taken note of
the stand of the opposite party as disclosed in his show cause. It is stated that the wife had taken divorce and she is residing separately and she had
been earning her livelihood by doing some daily wages work.
Consideration
9. Having heard learned counsel for the petitioner â€" opposite party and on perusal of the records, this Court finds that the application of the applicant
â€" wife has been rejected mainly on the ground that the applicant â€" wife had not come to depose in course of evidence. The learned court has
taken note of the stand of the opposite party as disclosed in his show cause but could not appreciate that the applicant had also filed her application
duly supported by an affidavit. The court could not appreciate that a proceeding under Section 125 Cr.P.C. is a summary proceeding and in such
proceeding the case is not to be conducted by way of a long drawn trial. In appropriate cases evidence may be led by way of affidavit because under
the Code of Civil Procedure one of the modes of leading evidence is by way of affidavit. In this case, the applicant â€" wife had in fact adduced
witnesses in support of her application and there was no reason for the learned Principal Judge, Family Court to refuse to look into the deposition of
those witnesses. The show cause of the husband â€" opposite party itself admits in paragraph ‘7’ that he wanted his wife to stay in his house to
serve his parents. It further says that the husband had performed a second marriage with a widow and at this stage there is no averment that this
second marriage was performed after taking divorce from the applicant â€" wife. The Further conduct of the husband â€" opposite party may be
found on perusal of paragraph ‘10’ of his show cause in which he states that his house is situated in the village but he stays in connection with
his job in the clinic of a doctor and goes to his village once in a week and this was not acceptable to the applicant â€" wife, therefore, she proposed a
divorce to the husband â€" opposite party and the opposite party gave divorce to the applicant â€" wife on 13.04.2010.
10. A conjoint reading of the various paragraphs of the show cause of the husband â€" opposite party would make it crystal clear that the husband â€
opposite party had performed a second marriage, he was living at his place of work and he wanted his applicant â€" wife to stay in his village to serve
his parents and those were the cause of matrimonial dispute. This court is, therefore, of the considered opinion that the Principal Judge, Family Court,
Purnea should have been sensitive enough to protect the interest of the applicant â€" wife taking into consideration the object and purpose behind
providing a provision like section 125 Cr.P.C. in the statute book as well as the principle of equity. The learned court below has, in the opinion of this
court, failed to appreciate this aspect of the matter and chose it to dismiss the complaint. For these reasons, this Court sets-aside the impugned
judgment.
11. In the case of Rajnesh Versus Neha and Another reported in (2021)2SCC 324 their lordships of the Hon’ble Supreme Court have stated once
again that Section 125 Cr.P.C. is a measure of social justice and especially enacted to protect women and children, and falls within the constitutional
sweep of Article 15(3), reinforced by Article 39. of the Constitution. (para 37). paragraph 38 of the said judgment of the Hon’ble Supreme Court
is recorded as under:-
“38. Proceedings under Section 125 CrPC are summary in nature. In Bhuwan Mohan Singh v. Meena 2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 :
(2015) 4 SCC (Cri) 200] this Court held that Section 125 CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who
had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the
sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical
labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.â€
12. This Court finds that the application in this case was filed in the year 2013. Nine years have gone past and the applicant â€" wife is not getting a
single farthing to support herself. This Court is, therefore, of the considered opinion that relegating the applicant â€" wife to the court below once
again would not serve the interest of justice. This Court is a constitutional Court and their lordships have held in the case of Chaturbhuj V. Sita Bai
reported in (2008) 2 SCC 316 that Section 125 Cr.P.C. falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the
Constitution. The judicial conscience of this court keeping in mind the law on the subject and the equity which also favours the applicant â€" wife
suggests that the application as contained in Annexure ‘1’ preferred under Section 125 Cr.P.C. is to be allowed and a reasonable amount of
maintenance be fixed for the applicant â€" wife.
13. Considering that the husbandâ€"opposite party is involved in skilled work and the learned counsel has in fact indicated that he is rendering services
as compounder and has employed in the clinic of a doctor, now he is a quite experienced compounder and about nine years back he on his own
declared his income as Rs. 5000/- per month. This Court would at this stage assess his income as not less than Rs. 20,000/- per month. The opposite
party has deprived his wife from any assistance/help in her living for about a decade. This Court, therefore, directs the husband â€" opposite party to
pay a sum of Rs. 5000/- per month to the applicant â€" wife with effect from 16.11.2013 that is the date on which the application seeking maintenance
was filed in the learned court below. He will pay the arrears of maintenance in the equal monthly installments of Rs. 3000/- each month till such
arrears are fully paid. The arrear installment and the current maintenance amount together being Rs. 8000/- per months shall be paid to the applicant
â€" wife every months within first ten days of the month. Such payment shall starts forthwith and the first installment must be paid in the month of
July, 2022 itself.
14. This application stands allowed as indicated above.
