Mudassir Khan vs State Of U.P. And Another
2021 Latest Caselaw 11396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 89
 

 
Case :- CRIMINAL REVISION No. - 3154 of 2021
 

 
Revisionist :- Mudassir Khan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Brajesh Kumar Solanki
 
Counsel for Opposite Party :- G.A
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri V.K. Solanki, learned counsel for the revisionist and Sri K.K. Rajbhar, the learned A.G.A, for O.P. no.1.

2. Challenge in the present revision purported to be under Section 397/401 of CrPC is to order dated 27.10.2021 passed by the Principal Judge, Family Court, Budaun, District Budaun, in Criminal Case No. 1307/2019, (Smt. Tabassum Vs. Mudassir), in the proceedings under Section 125 of CrPC, P.S. Wazirganj, District Budaun.

3. Brief facts of the case shorn off unnecessary details set forth in the application purported to be under Section 125 of CrPC is to the effect that the O.P. no.2 being Smt. Tabassum wife of Mudassir Khan and daughter of Wazir Khan, got married with the applicant herein on 11.5.2018 according to the rites and rituals as enshrined under the Muslim Law. Consequent to the solemnization of the marriage, the inlaws of O.P. no.2 as well as the revisionist, who happens to be the husband demanded dowry as according to them, the gifts, which the family of the O.P. no.2 had given to them was not commensurating to the status of the inlaws. Resultantly, threats were being sought to be administered upon O.P. no.2 and she was being harassed in all possible manner. When the O.P. no.2 narrated the entire story to her mother, then the mother of O.P. no.2 along with near relatives approached the revisionist and their parents requesting them that her daughter may not be harassed. It is also narrated in the application purported to be under Section 156(3) CrPC that on 20.9.2018, the inlaws of the O.P. no.2 as well as the husband of O.P. no.2 being the revisionist took O.P. no.2 to Bombay on 27.6.2018 and thereafter consequent to return from Bombay to Sahaswan on 20.9.2018, again O.P. no.2 administered beating and attempts were also made to kill her. Again the process of mediation for creating an environment, whereby the O.P. no.2 and the revisionist may live together peacefully, was undertaken. Again on 23.9.2018, at 8:00 O'clock in the morning beating was administered to O.P. no.2 and all the jewellery, which was available with the O.P. no.2 was taken away by the inlaws and she was ousted from the house with only the cloth, which she was wearing and she was sent from her inlaws' place in a hired taxi. Constraint with the same, the O.P. no.2, thereafter, preferred an application purported to be under Section 125 CrPC before the court below, which was numbered as Criminal Case No.1307 of 2019, CNR No. UPBN 02-001952-2019, seeking maintenance to the tune of Rs.15,000/- per month. The said application was presented before the court below on 28.9.2019. On being noticed, the revisionist filed its reply refuting the allegations and the averments contained in the application under Section 125 CrPC instituted by O.P. no.2. The O.P. no.2 also filed necessary documentary evidence in support of her case. Nonetheless, so far as revisionist is concerned, he did not submit any documentary evidence fortifying his stand.

4. Thereafter the court below has now proceeded to pass the order dated 24.10.2021, while granting maintenance to the tune of Rs.5000/- to O.P. no.2 from the date of the filing of application.

5. Aggrieved against the order dated 27.10.2021 passed by the Court of Principal Judge, Family Court, Budaun, District Budaun, in Criminal Case No. 1307/2019, (Smt. Tabassum Vs. Mudassir), in the proceedings under Section 125 of CrPC, P.S. Wazirganj, District Budaun, now the revisionist is before this Court.

6. Before proceeding further it is apt to reproduce the provisions contained under Section 397/401 CrPC, which reads as under: -

"397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.

(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

401. High Court' s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice

so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

7. A conjoint reading of the provisions contained under Section 397 as well as 401 of the Code of Criminal Procedure, it will clearly reveal that High Court of any Sessions Judge may call for and examine the record of any proceedings before any inferior criminal court situate within its or its local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or probability of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court.

8. It is well settled that the legal proposition so culled out by the Hon'ble Apex Court that the power so exercised under Section 397/401 of the Code of Criminal Procedure is limited and until and unless the order so challenged therein passed by the Court is perverse or the view taken by the Court wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of record, the revisional court is not justified in interfering with the order that too merely because also another view is possible.

9. In nutshell, the Hon'ble Apex Court has cautioned the High Court not to act as an appellate court as the whole purpose of revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal procedure.

10. In the light of the principles so enunciated by the Hon'ble Apex Court or by this Court, now the present case is to be dealt with.

11. Learned counsel for the revisionist has made manifold submissions, which are as under:-

(a) The court below has committed manifest error of law in awarding maintenance to the tune of Rs.5000/- per month as there was no determination of the actual income of the applicant/revisionist.

(b) The O.P. no.2 (wife) has sufficient means to sustain herself, thus she is not entitled to maintenance.

(c) Assuming without admitting that the O.P. no.2 is entitled to maintenance, then the same should be from the date of passing of the order and not from the date of filing of the application..

12. Learned A.G.A, who appears for O.P. no.1 has supported the order under challenge, while contending that there is no error apparent on the face of record committed by the court below in passing the order under challenge, particularly in the proceedings under revisional jurisdiction has pure finding of fact based on documentary evidence on record is there.

13. Learned counsel for the revisionist has firstly argued that the revisionist is a labour, whose monthly income varies from Rs.7000/- to 8000/- per month and thus the imposition of a condition for payment of maintenance to the O.P. no.2 (wife) to the tune of Rs.5000/- is quite excessive and not commensurate to the income of the revisionist.

14. In order to buttress the said submission, the learned counsel for the revisionist has referred to various paragraphs of the judgment under challenge so as to contend that the allegations so sought to be made by O.P. no.2 to the extent that the revisionist has a business of effecting POP on the ceiling as well as a Dharamkanta by the name of Anjum is factually incorrect. The court below after analyzing the evidence available on record in paragraph-35 of the order dated 27.10.2021, which is under challenge has taken note of the fact that the revisionist during the cross-examination admitted the fact that he has a Dharamkanta by the name of Anjum Dharamkanta. Further the court below has also recorded a finding that the revisionist is a hale and hearty person having sufficient means to sustain himself and also to provide maintenance to his wife being O.P. no.2.

15. The learned counsel for the revisionist on pointed query made to him could not dispute the said factual aspect. As from the perusal of the pleadings setforth before the court below as before this Court, there is no document to show that the finding is perverse or incorrect. As already noticed earlier, this Court cannot substitute its own finding while upsetting the finding of the court below, even if another view is possible. Obviously, exception is to the said effect that there should be material available on record to show perversity committed by the court below.

16. The learned counsel for the revisionist has next argued that O.P. no.2 (wife) has sufficient means to sustain herself, and she cannot be made dependent upon maintenance, which is to be granted to her by the revisionist. The court below has dealt with the said issue and in paragraph-22 of the order under challenge has recorded a categorical finding that the allegations so made by the revisionist with regard to the fact that the O.P. no.2 had taken jewellery and money for running the business of distribution of milk was found to be incorrect has the revisionist had completely failed to produce any document to the said effect. Rather to the contrary, it was the consistent case of O.P. no.2 that she is not doing any business and she is also not well-versed with the art of knitting also. Accordingly, the court below found it proper to award her maintenance.

17. Lastly, the learned counsel for the revisionist has argued that assuming without admitting that the O.P. no.2 is entitled to maintenance, then the maintenance can be granted from the date of passing of the order and not from the date of the application. The said argument so raised by the learned counsel for the revisionist appears to be attractive, but is liable to be rejected, particularly, in view of the fact that now the Hon'ble Apex Court in the case of Rajnesh Vs. Neha decided in Criminal Appeal No. 730 of 2020 on 4.11.2020, has clearly mandated that maintenance is to be granted from the date of application and not from the date of the order. The operative portion of the order dated 4.11.2020 is quoted hereinunder:-

" Discussion and Directions

The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded.

Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.

In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak 2008 9 SCC 632, this Court held that the entitlement of maintenance should not be left to the uncertain date of disposal of the case. The enormous delay in disposal of proceedings justifies the award of maintenance from the date of application. In Bhuwan Mohan Singh v Meena61, this Court held that repetitive adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application.

The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.

In Badshah v Urmila Badshah Godse (2014) 1 SCC 188 , the Supreme Court was considering the interpretation of Section 125 Cr.P.C. The Court held :

"13.3. ...purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society." (emphasis supplied)

It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant."

Final Directions

In view of the foregoing discussion as contained of this judgment, I deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India:-

(a)......................

(b).......................

(c)...........................

(d) Date from which maintenance is to be awarded

We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance."

18. Brief background of the statutory enactments so made from time to time are germane for adjudication of the controversy in question and hence the same are reproduced hereinbelow:-

Section 488 of the Cr.P.C. 1898:-

Section 488-Order of maintenance of wife & children

"(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub divisional Magistrate or 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, at such monthly rate, not exceeding fifty rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered wilfully neglects to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance 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, 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 mate an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

(4) No wife shall he entitled to receive an allowance 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.

(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:

Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.

(7) The accused may tender himself as a witness, and in such case shall be examined as such.

(8) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.

(9) The accused may be proceeded against in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child."

Section 125(1) of the Cr.P.C. 1973

(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

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 not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Section 125 Cr.P.C. 1973 as amended w.e.f. 24.9.2001 -

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 rate 1[***] 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.";]

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 port of each month's  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 wife's refusal to live with him.

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

STATE AMENDMENTS

Uttar Pradesh:

"(6) where in a proceeding under this section it appears to the Magistrate that the person claiming maintenance is in need to 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."

19. The incorporation of the provisions pertaining to maintenance has been well recognized and the provisions so contained under Section 488 of the Cr.P.C. 1898 which is a pre-constitution enactment has been given recognition and endorsed while giving it up proper place and status in Section 125 of the Cr.P.C., 1973.

20. The laws relating to maintenance have been enacted as a measure for social justice to provide immediate relief to dependent being wives and children for their family support so as to prevent them from falling into destitution and vagrancy.

Article 15(3) of the Constitution of India provides that:

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

21. Thus it can be safely said that the Constitution of India, 1950 has envisaged a devise setting up a positive role for the State in fostering change towards the empowerment of women leading to amendment in various legislation and introduction of new legislation.

22. As noticed earlier the pre-constitutional law being the Code of Criminal Procedure, 1898 relating to Section 488 has been followed in Section 125 Cr.P.C. before its amendment in the year 2001 as in other words it can be said that Section 125 Cr.P.C. is an incarnation of Section 488 of the old Act except the fact that now parents also are brought into category of persons eligible for maintenance and further legislative cognizance has also been taken of the devaluation of the rupees and escalation of living cost by raising maximum allowance from 100 to 500. However, now after amendments made in the year 2001 the ceiling limit for maintenance has been done away.

23. The Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal reported in 1978 (4) SCC 70 in para 9 has observed as under:-

"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 advance the cause--the cause of the derelicts."

24. The basic idea behind insertion of the provisions relating to grant of maintenance is to prevent vagrancy and destitution of the dependents so as to create an atmosphere whereby a dependent is not allowed to starve or lead a life which cannot be termed to be a respectable living.

25. Section 125 of the Cr.P.C. is a self-contained code which finds presence under Chapter IX of 1973 Code for the aid of wife, children and parents in the matter of maintenance that to in summary proceedings. Maintenance under Section 125 of the Cr.P.C. can be claimed by a person irrespective of belonging to any religious community and the object of the said Section is to provide immediate relief to an applicant meaning thereby that it is a beneficial legislation in favour of the dependents.

26. It is not a matter of right that a dependent can claim maintenance under Section 125 Cr.P.C. as there are certain conditions. It is further not matter of mere asking that the maintenance can be claimed by a dependent as for the said purpose, there are certain pre-requisite conditions which have to be satisfied namely;

(i) the husband must have sufficient means;

(ii) the husband neglects to maintain his wife, who is unable to maintain herself

27. Yet the Hon'ble Supreme Court in the case of Shri Bhagwan Dutt Vs. Smt. Kamla Devi and another reported in (1975) 2 SCC 386 while dealing with the provisions contained under Section 488 of the old Act held as under:-

"20. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments."

28. The Hon'ble Apex Court had even put a caveat and has cautioned that the proceeding under Section 125 of the Cr.P.C., 1973 is not with an object to punish a person but prevent vagrancy by compelling who can provide support to those who are unable to support themselves.

29. Hon'ble Supreme Court in the case of Chaturbhuj Vs. Sita Bai (2008) 2 SCC 316 in para 6 has observed as under:-

6. The object of the maintenance proceedings 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 support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.

Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors (1978) 4 SCC 70) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005) 3 SCC 636.

30. Reiterating the principles of law as laid down in the aforesaid decisions the Hon'ble Apex Court in the case of Chanmuniya Vs. Virendra Kumar Singh Kushwaha and another 2011 (1) SCC 141 has even gone into the marital status with regard to long cohabitation and in para 42 observed as under :-

"42. We are of the opinion that a broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.We also believe that such an interpretation would be a just application of the principles enshrined in the preamble to our Constitution, namely, social justice and upholding the dignity of the individual."

31. In the case of Kamla and others Vs. M.R. Mehar reported in 2019 (2) SCC 491 the Hon'ble Apex Court has gone to the extent that long cohabitation between woman and man leads to presumption of marriage entitling maintenance for woman and children born to them.

32. Hence it can be safely said that the grant of a maintenance is beneficial legislation for the purposes of granting benefit tot he dependent, who are on the verge of the starvation and who have been meted with a treatment, which she was never intended to be given.

33. Further no other point has been raised by the learned counsel for the revisionist. 

34. Looking in the totality of the matter, this Court finds that the present case is not a fit case, wherein this Court may exercise its jurisdiction under Section 397/401 CrPC while setting aside the order dated 27.10.2021, hence the present criminal revision is liable to be dismissed.

35. The revision is accordingly dismissed.

36. No order as to cost.

Order Date :- 29.11.2021

N.S.Rathour