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 in-laws 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 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

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. 24-9-2001).] 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 subsection, 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 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 allencompassing 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 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 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 non-payment 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 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 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.