MOKSHED ALI Vs. SAFURA KHATOON

JUDGEMENT

(1.) It saddens me to watch and see the multifold increase of Criminal Revisions against orders granting or refusing to grant maintenance under S.125, Cr. P. C., 1973, for short 'the Code' and to note the plight of the parties, who are utterly poor, more particularly the neglected wives. S.125 of 'the Code' enables a wife or a child or parents to get maintenance upon proof of neglect or refusal by the husbands, parents and sons, who having means to sustain them do not provide the maintenance. It is thus clear that those unable to maintain themselves ask for and get maintenance under S.125. I also find that they get minimal or inconsequential maintenance allowances. It is well-nigh impossible for them to contest the proceedings in Court.

(2.) Now, the problem is how to provide justice? What should be done under similar circumstances say, in the instant case? Can the neglected wife getting a paltry sum of Rs. 175/- per month to sustain herself and her child fight this litigation? This is just an illustrative case. In my opinion the wretched, the poor and the neglected must be given legal aid or assistance by the State. It is the Constitutional obligation of the State, rather it is the Constitutional right of the poor to demand legal assistance upon the State. The poor cannot be denied justice merely because they are poor. The solemn pledges imprinted in the preamble to the Constitution are to ensure justice, liberty, equality and dignity to the citizen of India. It is the Constitutional, right of the poor to demand the legal assistance from the States. They are not to beg for free legal aid. One is only to look at Art. 39-A and Art. 14 of the Constitution, the spirit of the Constitution, to realise that the time has come when the poor must be provided with, appropriate legal assistance by the State. It is high time to realise that it is the right of the poor to get equal justice and the said right has been denied to them so long. If, in such cases, the poor divorcee, the neglected children and parents do not get free legal assistance from the State to vindicate their rights I feel that sleeping over the matter would be "anti Constitutional inaction". We should not forget that the Constitution is the Great Charter of Indian social, economic and political liberties. I earnestly desire that all should understand and know the spirit of the Constitution and perform duties strictly in accordance with the letters and spirit thereof. It is high time to recall what Aristotle informed the civilized world way back in mid 300 B.C. : He said :

(3.) I am of the opinion that in the cases of the nature with which I am presently, concerned, it is the right of the neglected and utterly poor persons to have free legal assistance from the State. It is the minimum that the State is obliged to do by and under the Constitution. I feel that necessary orders, circulars or directions may be issued by the Governments to enable the High Court and the Courts subordinate to it to provide free legal assistance to these neglected persons from the original Court to the highest Court of the region. In anticipation of an order from the Government empowering the Court to appoint advocates at the costs of the States. I propose to appoint Amicus Curiae in all such cases.