Revision under CrPC
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This article is written by Bheeni Goyal, from Symbiosis Law School, Pune. It explains the scope of Section 125 of the Code of Criminal Procedure and the revision applications passed against the orders under Section 125.

Introduction

Section 125 of the Code of Criminal Procedure is one of the most invoked and discussed provisions of the code. This code provides that any person who has sufficient means to maintain himself cannot deny the maintenance to the wife, children, and parents if they are not able to maintain themselves. However, sometimes the husbands, against whom the order of maintenance is passed may not be satisfied with the judgment passed by the lower court and therefore, they should have a platform where they can put up their grievances against the order. Therefore they have the right to file the revision application in the court of law as provided under Section 397 of the Code. The scope of revision applications increased in recent times due to increasing awareness and improved outlook of the judiciary towards providing justice to such parties as well. Let’s look at the scope of the revision available against the order under Section 125 of the Code Of Criminal Procedure.

Section 125, defining scope and applicability

Section 125 of the Criminal Procedure Code provides for the maintenance to the wife, child, 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 favor 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.

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 either receiving the monthly allowances. This was laid down in the case of Vikas v. State of Uttar Pradesh. 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 v. K. Veeraswamy, 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.

Scope of revision under Section 125

Under Section 125 of the Code of Criminal Procedure, when the proceedings are conducted against the husbands, the court tends to decide the quantum of the maintenance, which has to be paid to the wife after considering the circumstances of the case. Although the maintenance declared by the court would satisfy the petitioners, what if the husband is not satisfied with the order of the court. As appeal under Section 125 of the court is not maintainable, the legal option which is available with the husband is to go for the revision proceedings. But it all depends on the merits of the case, whether the party has the right to file for the revision proceedings in the higher courts. But the jurisdiction of the higher courts is also limited, as they have to take into consideration certain aspects before proceeding with the revision of the case. One of the limitations is that the Higher Court cannot interfere when the evidence that has been presented by both parties is taken into consideration. The power of revision is available with Section 397 of the Code of Criminal Procedure.

The High Court or the sessions judge has the power to call for the examination of the record of any proceeding before any inferior court. However, the power of the revision will not be applicable concerning any of the interlocutory orders passed in any of the trial proceedings. In the case of Ashu Dhiman v. Jyoti Dhiman, which has been passed by the Uttarakhand High Court holding that an order passed by the trial court rejecting or allowing the application for the maintenance when the proceedings are pending in the court, cannot be considered as an interlocutory order and the higher court have the right to review the case which has been filed by the other party. In the case of Sunil Kumar Sabharwal v. Neelam Sabharwal, it was held that an order granting the interim maintenance under Section 125 is not an interlocutory order and therefore the revision of the same cannot be barred under Section 397(2). When the court has straightaway rejected or allowed the proceedings to be filed in the court of law then, the parties should have the right to go for the review by the court of law. Numerous judgments have been passed by the court and provided that even if the wife is capable of earning or is earning, cannot be denied the maintenance by the husband.

However, it is always necessary that the husband is more efficient in earning than the wife. In such cases, they need to approach the higher courts pleading the revision of the case. The Courts have been allowing the revision application when the wife is at fault herself. Sometimes the wife leaves their matrimonial houses without any sufficient reasons and for their ill motives to get the maintenance from their husband.

Landmark judgments

Numerous judgments have been passed by the courts supporting the contention of the husband when they file revision applications for setting aside or for the alteration of the maintenance amount when they are not satisfied with the order passed by the Trial Courts. This certainly increases the scope of the revision which is available under Section 125 of CrPC. 

The Patna High Court in the case of Masud Ahmed v. the State of Bihar, where the petitioner approached the High Court for setting aside the order which had been passed by the trial court directing the petitioner to pay the maintenance of Rupees 3000 per month to the ex-wife and Rupees 2000 per month as the maintenance for children. The petitioner had argued that his ex-wife, a teacher in a school, had been earning quite well. He contended that Section 125 of CrPC could only be invoked when the wife is not able to maintain herself. But, in this case, she had been earning sufficiently well by working in the school. The court in this case held that the wife should not be provided with the maintenance as after the divorce, the wife had sufficient means to maintain herself and therefore the court set aside the order for giving Rupees 3000 per month as the maintenance. 

In another case of Aarif v. Shajida, the revision petition was filed before the Madhya Pradesh High Court under Section 397 and Section 401 of the Code of Criminal Procedure for setting aside the order which had been passed by the lower court directing the petitioner to pay 3000 Rupees for the maintenance to his wife. It was contended by the husband that the wife had deserted him again and again and had been living away from him for a long time. She did not have sufficient reasons for staying away from the matrimonial house, then she even kept leaving and coming back to her matrimonial house. The court found that the action of the respondent-wife was contradictory. Hence, the court allowed for the revision of the application.

Revisional courts also have the power to set aside the findings of the fact recorded by the lower courts concerning Section 125 of the Code of Criminal Procedure. In the case of  Deb Narayan Halder vs. Anushree Halder, it was held that the High Court in the exercise of its revisional powers can set aside certain findings of facts found by the lower courts under Section 125 of the Code of Criminal Procedure. It was held by the court that, “it is well settled that the Appellate or Revisional Court while setting aside the finding recorded by the Court below must notice those findings, and if the Appellate or Revisional Court concludes that the findings recorded by the Trial Court are indefensible, they should record its reasons for coming to such conclusion. Where the findings are findings of fact it must discuss the evidence on record which justifies the reversal of the findings recorded by the Court below. This is particularly so when findings recorded by the Trial Court are sought to be set aside by any Appellate or Revisional Court. One cannot take exception to a judgment merely on the ground of its brevity, but if the judgment appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the Trial Court, the party aggrieved is entitled to ask for setting aside of such a judgment”. 

The court however does not have the power to exercise the powers under Section 125 of CrPC if the wife has been granted the alimony under Section 25 of the Hindu Marriage Act, 1955.  In this case, the wife has preferred alimony under the Hindu Marriage Act and at the same time, she opted for the maintenance under section 125 of CrPC. It was held by the Court that the wife has the right to opt for the maintenance under section 125 of CrPC and after that, she could opt for the interim maintenance under Hindu Marriage Act. However in this case it was the opposite where the wife opted for the Alimony under the Hindu Marriage Act and then opted for the maintenance. Therefore in such cases, she can only be granted one relief and that is of maintenance and that’s why the decree for the alimony under this case will be converted into the suit for the maintenance under section 125 of CrPC.The above-mentioned judges have provided us a glimpse of the changed outlook of the judiciary towards revision applications and further increasing the scope by setting up more precedents.

Conclusion

Although Section 125 of the Code of Criminal Procedure protects the right of the wife, and the parents to get the equitable amount of maintenance from the husband or their children respectively, there should not be any misuse of such a provision. Nowadays, the scope of revision against the order passed under Section 125 has increased, and the higher courts are increasingly accepting the revision applications under Section 397 for providing appropriate reliefs to the opposite party. There is no set rule which the courts have been following in allowing or rejecting the revision application, it all depends on the facts and circumstances of a certain case. Sometimes the wife, even after the separation, has enough means to maintain herself. Some High Courts had rejected the revision application filed by the husbands because even after their ex-wives had means to maintain themselves, they still were required to give them the maintenance. However, in the above-mentioned case laws, the High Courts have approved the revision application of the husbands because the wives could maintain themselves. Therefore the court decides it based on circumstances prevailing at that time. Hence, these precedents have increased the scope of the revision application against the order passed under Section 125 of CrPC. Although, the author believes that before invoking any such provisions, the parties should solve the matters among themselves.

References


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