- (1.) KAJESHWAR Singh, J. This is an application under Section 482, Criminal Procedure Code against the order of the Magistrate refusing to stay the proceed ings under Section 125, Criminal Procedure Code.
(2.) THE man (applicant) filed a suit against the woman (opposite party) saying that the marriage between him and the woman be declared nullity on the ground that the woman had been married to a third pasty who was alive on the date of marriage and the woman married the applicant concealing that fact. This suit was filed in the District where the man lived. THE woman filed an application in the High Court for transfer of that case from the district saying it was not safe for her to visit that district where the husband resided. In those proceedings the hearing of suit was stayed by the High Court. THE woman filed a case under Section 125, Criminal Procedure Code for maintenance in the district where her father resided. THE man applied that the proceedings of this case be stayed till the decision of the suit filed by him. THE trial court refused to stay the proceedings. Against than order the. man filed the present application. The first point that has been pressed is that proceedings under Sec tion 125, Criminal Procedure Code are not maintainable because the factum of marriage is denied by the man. The Section 125, Criminal Procedure Code says that if any person neglects to maintain his wife a Magistrate may order such person to make a monlhly allowance for maintenance. The section merely says that it is applicable when a person refuses to maintain his wife. It does not say that it is applicable when a person refuses to maintain one who is admittedly wife of that person. Even under Indian Penal Code when a section provides for punishment of an offence all ingredients of that section can normally be proved in the case itself and it is not expected that some ingredient of the section must previously be admitted by the accused or the prosecution. In the present case it is one of the ingredients of the section that the woman claiming maintenance is wife of the person against whom main tenance is claimed. This ingredient can be proved in proceedings under Section 125, Crimimal Procedure Code aud there does not appear any justifica tion of inferring that it should be admitted by the man, against whom the proceedings are started, that the person claiming maintenance is his wife. If it is otherwise then the very purpose of Section 125, Criminal Procedure Code would be defeated, because in every case it would be possible for the man to deny that the person claiming maintenance is his wife. So it appears that this section does not cease to operate when the relationship of the marriage is denied. It is competent to the Magistrate to allow an issue on the question to be raised and decided. The object of Section 125, Criminal Procedure Code is to avoid vagrancy and starvation by providing a speedy remedy for maintenance and as said earlier this object would be defeated if the proceedings can be obstructed by a simple denial by the man that the person claiming maintenance is not his wife.
(3.) IT is not the case that in case the Magistrate decides against the husband will be debarred from establishing his right in the Civil Court and he will suffer on account of a summary remedy. Section 127 (2), Cr. P. C. provides that in consequence of any decision of the Civil Court the order of maintenance passed under Section 125, Cr. P. C. can be cancelled o> varied. So in this case if the man succeeds in his suit that has been filed in. the Civil Court for declaring the marriage to be a nullity, he can get the order passed in proceedings under Section 125, Cr. P. C. varied. The case of Smt. Sumitra Devi v. Bhikhan Chaudhari, 1985 Uchchtam Nyayalaya Nirya Sar, page 148 may be referred. In this case a woman initiated proceedings under Section 125, Cr. P. C. The man took the plea that he was never married to that woman. The trial court decided the matter in favour of the women. The Additional Sessions Judge reversed the decision and revison by the High Court was dismissed. The matter went to Supreme Court. The Supreme Court set aside the judgment of High Court and sent back the case to the Magistrate with the directions that the point be decided aiter giving opportunity to the parties to lead further evidence. This means that the Supreme Court was of the view that the point whether the woman was wife of that man can be decided in proceedings under Section 125, Cr. P. C.;