The Allahabad High Court while dismissing the petition observed that when there is a change in circumstances entitling a person to be a claimant as per provisions of section- 125 CrPC, he or she can very well apply for maintenance.
A Single Bench of Justice Jyotsna Sharma passed this order while hearing a petition filed by Shyam Bahadur Singh.
The writ petition has been filed by the petitioner to issue a writ, order or direction in the nature of certiorari quashing the order dated 31.01.2006 and 22.01.2004 passed by Additional District Judge/ Special Judge (SC/ST Act), Banda and Additional Chief Judicial Magistrate, North-East Railway, District Banda respectively.
The facts of the petition are as below:-
The respondent no 2 filed an application under Section 125 CrPC claiming maintenance from her husband, which was dismissed on 31.01.1995 on certain grounds; the criminal revision filed by the respondent/wife was also dismissed; the respondent no 2 again moved a second application under Section 125 CrPC on a premise that there have been change in circumstances, therefore, she is entitled to claim maintenance from her husband and that second application came to be allowed directing her husband to pay Rs 1,500/- per month; the opposite party aggrieved by the above order dated 22.01.2004, preferred a criminal revision which was dismissed on 31.01.2006, now the petitioner husband is before this court challenging the order passed by the trial court as well as the order passed by the revisional court.
The main crux of the argument of the petitioner is that the respondent’s wife never challenged the order of the revisional court by which the earlier order passed by the trial court rejecting the first application under Section 125 Cr.P.C was affirmed, therefore, the order passed against the wife became final and therefore, the matter cannot be agitated again by filing another application under Section 125 Cr.P.C.
It is argued that the entire proceeding subsequently initiated by respondent no 2 is barred by principle of constructive res-judicata and hit by the provisions of Constitution of India, therefore, it is liable to be quashed.
It is further argued that the subsequent orders granting maintenance are passed ignoring the factual and legal positions; the trial court as well as the revisional court passed an illegal order, therefore the orders cannot be sustained.
The contentions of the petitioner is opposed by respondent no 2 on the ground that in a judicial order this Court is not allowed to interfere while exercising writ jurisdiction under Article 226 of the Constitution of India. Hence, the petition should be dismissed at the very threshold.
Thus it has been clearly laid down that order of civil court could be challenged under Article 227 of the Constitution of India and not under original writ jurisdiction under Article 226 of the Constitution of India.
The Court noted that the second application for grant of maintenance was filed by respondent no 2 in the year 2003 and the same was decided by an order dated 22.01.2004. The revision filed against that order was dismissed in January 2006. The petition under Article 226 of the Constitution of India came to be filed by the husband with a prayer to quash those orders in 2008 and since then the matter is pending. Almost 14 years have gone since then and all this while, this legal issue was neither raised nor realised that the writ petition seeks to invoke powers under Article 226 instead of Article 227 of the Constitution of India.
“It is settled law that non-mentioning or wrong mentioning of provisions of law should not be treated as an obstacle in proceeding with a case. In my view, an ordinary litigant cannot be expected to have too minute knowledge of provisions of law and that the court shall be failing in its duty if the case is thrown in the waste paper basket on a technical point or on the basis of mentioning a wrong provision of law. In such matters, a Judge ought to play its expected role. In this view of the matter, I find it fit to treat this petition as one moved under Article 227 of the Constitution of India”, the Court observed.
The Court said that, it is not disputed that the earlier proceeding initiated by the wife under Section 125 CrPC came to be dismissed and the revision filed by her also came to be dismissed. It is not disputed that a subsequent case under Section 125 CrPC was filed by the wife on the premise that there has been a change in circumstances.
“It may be noted that the solemn aim of the proceedings under Section 125 CrPC is to prevent vagrancy and destitution. Section 125 CrPC is a piece of social legislation introduced in CrPC to grant a quick relief to the members of the society. At the same time, it may be noted that the procedure which shall be adopted in such cases is a summary one. This is a settled legal position that any matter which has been decided in a summary manner shall not have an effect of res-judicata, hence in my view this argument is misconceived. More so because the application has been moved on the ground that there has been change in circumstances i.e remarriage by the husband. Though the petitioner has objected to the fact of remarriage, however, this court in exercise of writ jurisdiction is not permitted to go into the disputed questions of fact.
There may be instances where the person who falls within the purview of section 125 CrPC as being one who has been neglected or refused maintenance during a certain period of time. There may be some instances where a person, for the time being able to maintain himself or herself loses her/his resources because of changed circumstances. In such cases a fresh right to claim maintenance may accrue. Legally the liability to maintain under section 125 CrPC is continuing one. In my view, when there is a change in circumstances entitling a person to be a claimant as per provisions of section- 125 CrPC, he or she can very well apply for maintenance. If such an option is foreclosed, it shall frustrate the very purpose of section- 125 CrPC. I do not find any good ground to interfere in the order of the trial court or of the revisional court in exercise of writ jurisdiction of the court”, the Court further observed while dismissing the petition.
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