IN RE : HUSSAIN SAHEB Vs. STATE

JUDGEMENT

(1.) In this Writ Petition, the constitutional validity of Sub-section (3) of Section 125 of the Criminal P. C. 1973, is called in question. The contention is that, the said subsection is violative of the fundamental rights guaranteed by Articles 14 and 21 of the Constitution. I find no substance whatsoever in this contention. Section 125, in so far as it is relevant, reads as follows:

(2.) The power to grant maintenance is to be exercised by a Magistrate of the First Class, i.e., a Judicial Magistrate. He shall order the maintenance to be paid only where he is satisfied that the wife, or minor child, or parent, as the case may be, has been neglected or refused to be maintained by the person concerned, and he shall fix the amount of maintenance at such monthly rate not exceeding Rs. 500/- in the whole, as he thinks fit, which means that he shall have due regard to the evidence adduced, before him with respect to the means and needs of both the parties, and arrive at an amount. According to Explanation (b), 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband but has not remarried. Sub-section (3) only provides for implementation of the order passed under Sub-section (1). It prescribes the mode in which an order of maintenance shall be executed.

(3.) The petitioner in this case does not challenge - and indeed he cannot challenge - the validity of Sub-section (1) of Explanation (b); he only challenges the validity of Sub-section (3), which merely provides for execution. The substantive provision is Sub-section (1); Sub-section (3) is merely procedural. On this ground alone the writ petition is liable to fail.