Dilshad Haji Risal v. State of U.P. : 2006 Cri.L.J 228 : AIR 2005 AII 403 : 2005 (53) ACrC 680 (1) DMC 461 : 2006 (1) HLR 717 : 2006 (1) 2006 (1) MarLJ 480 : 2006 (1) RCR (Cri) 179 : 2006 (2) LRC 97 (All)
Section 125(3)-Maintenance of wife and children-Recovery warrant-Objection to maintenance order under s. 125(3). Cr.P.C. offering his willingness to maintain wife and children and to keep them with him-magistrate without deciding the objection ordering issue of recovery warrant- Error of Jurisdiction-Under the second proviso to s. 125(3), Magistrate to decide the offer of husband and it is only when wife gives adequate reasons for refusing to live with husband, she not deprived of her right to maintenance-Order of Magistrate set aside and case remanded to decide the objection first and if same found unsustainable, to decide application for execution.
Held : The second proviso to sub Section 3 of Section 125 enunciates a salutary principle of courts having to consider the offer made by the husband to take back the wife and maintain her and if necessary uphold the wife's right to refuse such an offer only when the court is satisfied that there is just ground for so refusing. The intendment of this provision is for affording as many opportunities as possible by the Court for composing the differences between the husband and the wife. When such is the purpose, the dutly cast upon the court to enquire into the matter arising out of such an offer or to state reasons for refusal of that offer should not be brushed aside merely on the ground that on earlier occasions or in original applications demanding maintenance such offer or offers have been considered. But the second proviso to sub Section 3 has been added in the interests of the wife and not the husband. It is to stop a Magistrate from too readily accepting the proposition that as soon as a husband offers to maintain his wife, if she lives with him, he ceases to 'neglect' or to 'refuse to maintain' his wife. It was a recognition of the principle that a woman is entitled to live with that amount of decency and dignity which prevails in her class and if the treatment of the husband towards his wife does not permit her to lead such a life, his conduct amounts to a 'neglect' and 'refusal to maintain' within the meaning of Section 125(1) such an offer is, therefore, to be carefully tested and if the wife gives adequate reasons for refusing to live with her husband, she is not to be deprived of her right to maintenance. It is only when her reasons are insufficient that her claim can be denied. This proviso gives another opportunity to the husband to make a genuine bonafide offer to maintain his wife on condition of her living with him.
. The application under Section 482 Cr.P.C. is allowed and the impugned order dated 8.6.2005 and order dated 4.4.2005 are set aside and the learned Magistrate is directed to first decide the objection as filed by the applicant Dilshad under Section 125(3) Cr.P.C, second proviso within a period of one month after the copy of the order is filed in his Court by the applicant. The applicant shall file the certified copy of the order in the trial court within seven days from today and shall cooperate in early disposal of the objections. If the learned Magistrate finds that the objections as filed by the applicant is not sustainable, learned Magistrate shall decide the applications dated 28.8.2000 and 13.2.2004 in the light of observations made above and shall pass suitable orders afresh after merging the files of miscellaneous case No. 58 of 2004, 59 of 2004 under Section 125(3) Cr.P.C.