Neither Union Nor State Has Power To Issue Guidelines To Govern Judicial Discretion Of Courts While Hearing Case Of Maintenance: Bombay HC [Read Judgment]

Bombay High Court has dismissed a petition filed by a man who challenged the constitutional validity of Section 125 of CrPC and held that neither the Union nor the State has any power to issue guidelines to govern judicial discretion of courts.Court was responding a prayer in the petition which sought guidelines to be issued by the Centre or State for awarding maintenance under Section 125.Division bench of Justice Akil Kureshi and Justice SJ Kathawalla were hearing a writ petition filed by Mohd.Hussain Patil challenging the vires of Section 125 of CrPC. Petitioner had alleged that the said provision discriminates between men and women and is thus against Article 14 of the Constitution.Case BackgroundThe petitioner and his wife got married on December 25, 2011. As per Islam rituals. The dispute started within a few months of marriage, and finally the petitioner's wife Nilofar filed an application for maintenance under section 125 of CrPC on July 22, 2014, before the Family Court, Solapur claiming maintenance of Rs.25,000 from her husband for herself and Rs.25,000 for her son.She also filed two separate proceedings under the Protection of Women from Domestic Violence Act, 2005 before the Court of Judicial Magistrate, First Class, Solapur. An FIR was filed against the petitioner before Vijapur Naika Police Station at Solapur on May 1, 2013 alleging offence punishable under section 498A of the Indian Penal Code.Family Court, directed the husband to pay Rs.30,000 to his wife and Rs.10,000 to the son by an order dated February 24, 2017. Against the said order, the petitioner filed a revision petition before the High Court which was dismissed by an order dated July 26, 2017. Court noted that the Family Court had awarded 1/3rd of the petitioner's income by way of maintenance to the wife and son. It was recorded that the wife was not employed.Thereafter, the present petition was filed with following prayers-(a) the petitioner has challenged the constitutional vires of section 125 of CrPC.(b) the petitioner seeks a direction to the Union of India or the State of Maharashtra to formulate guidelines, which would be followed by the Courts while granting maintenance under different statutory provisions such as section 125 of CrPC, section 24 of Hindu Marriage Act, 1955 and section 12 of the DV Act.(c) urging this Court to lay down guidelines for the purpose of awarding such maintenance.JudgmentAdvocate Subhash Jha appeared on behalf of the petitioner. Jha contended that section 125 of CrPC is discriminatory and violative of the Articles 14, 15, 20 and 21 of the Constitution of India. He submitted that section 24 of the Hindu Marriage Act, 1955 gives right either to the wife or the husband to seek maintenance pendente lite without any discrimination on the gender of the claimant. Section 125 removes this equality and brings the angle of providing maintenance only to a wife. He therefore contended that section 125 is violative of equality clause enshrined in Article-14 of the Constitution of India lay down guidelines for the purpose of awarding such maintenanceAt the very outset, Court noted –"We have noticed that the petitioner has not challenged any specific order, adverse to him. All these three prayers are therefore in the nature of abstract prayers without any consequential reliefs, which may flow to the Petitioner. The petitioner has thus challenged the virus of a central legislation and prayed for issuing guidelines without challenging any order adverse to him. These prayers therefore cannot be entertained."Further, Court perused through the said provision (Section 125) and observed-"Firstly, this provision is made for maintenance of a special class of persons and secondly the maintenance would be awarded if such person is unable to maintain himself or herself. The legislature has thus clubbed wife, minor children, major children who on account of physical or mental abnormality or injury are unable to maintain themselves and the father and mother of a person for awarding maintenance."Thereafter, Court examined various judgements of the Supreme Court that have laid down the law in terms of Section 125-"In Chaturbhuj v. Sita Bai observed that 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.In Shabana Bano v. Imran Khan, Supreme Court held that the provisions of section 125 would also apply to a divorced Muslim woman as long as she does not remarry, the same being the beneficial legislation."Thus, the bench held-"The constitutionality of section 125 of CrPC thus has been tested and upheld. In other words, we find absolutely no merit in the contention raised by the learned counsel for the petitioner in this regard. Article 14 of the Constitution of India as is well-known, prohibits classes legislation but not...

Neither Union Nor State Has Power To Issue Guidelines To Govern Judicial Discretion Of Courts While Hearing Case Of Maintenance: Bombay HC [Read Judgment]

nitish kashyap

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