MAKARCHAND KANHAIYA GAULI Vs. LEELABAI MAKARCHAND GAULI

JUDGEMENT

(1.) THIS revision is referred to the larger bench to determine the following question :

(2.) RIGHT to get maintenance to wife, children and parents who are unable to maintain themselves is given under Chapter IX of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

(3.) IN the case of Bhaggobai Vs. State of M.P., 1984 MPWN Note 504 , it is held that remedy under section 125 of the Code is intended to be speedy remedy for the protection of a deserted wife or a neglected child from starvation, while the civil liability of the father or the husband to maintain his child or wife has to be determined by the Civil Court in accordance with the personal law applicable to the parties. The functions of the Magistrate and the Civil Court are distinctly different. The Magistrate has to deal with the emergency while the Civil Court is required to enforce strict legal rights according to the personal law of the parties. A wife, who files an application after maintaining herself for 10 or 15 years, certainly is not entitled to get relief under the emergency provisions of section 125 of the Code. The powers vested in the Magistrate under section 125 of the Code are discretionary. If there is inordinate delay in filing an application under section 125 of the Code, by the wife, without there being any cogent reason or explanation for the delay; the Magistrate in the judicious exercise of discretion, would be fully justified in dismissing the application under section 125 of the Code. In the case of Ambaram (supra) it is held that the wife after a period of 12 years of separately residing again started living with the husband and has also conceived a child from him. Thereafter, due to neglect of husband again, the wife was compelled to prefer an application for grant of maintenance. It was held that in these circumstances it cannot be said that the petition was filed belatedly by her and accordingly the wife could not be faulted with therefor.