Basant Lal vs State Of U.P. And Anr.

2. The appeal is directed against the judgment of a learned Single Judge of the Allahabad High Court dated 8-2-1995. The learned Single Judge was hearing a criminal revision petition directed against the judgment and order of the Family Court at Agra wherein, on the application of the respondent-wife under Section 125 of the Criminal Procedure Code, maintenance was granted to her at the rate of Rs 500 p.m. from the date of the application. The order was challenged before the High Court by the appellant-husband as being contrary to the provisions of Section 125(2). The learned Judge, having referred to the authorities cited before him, found that "it was never considered whether the provisions contained in Sub-section (2) of Section 125 CrPC were ultra vires on the touchstone of reasonableness as enshrined under Article 14 of the Constitution of India".

He then proceeded to do so and held it to be "obnoxious, unreasonable, arbitrary and unfair". He, therefore, declared it ultra vires Article 14 of the Constitution, so that it could not be pleaded as a ground to challenge the validity of the order of maintenance payable from the date of the application.

3. It apparently needs to be stated that statutory provisions are to be assumed to be constitutional, that constitutionality is to be considered only where absolutely necessary, that a statute cannot be struck down unless notice has been given to the Attorney General in the case of a Central statute, as here, or the Advocate General in the case of a State statute. According to learned counsel for the husband-appellant, the contention that Section 125(2) was unconstitutional had not even been raised in the pleadings. There is no doubt that the judgment must be set aside insofar as it holds that Section 125(2) is unconstitutional.

4. Learned counsel for the wife urged that the High Court had also considered the merits of the matter. Having regard to the great emphasis that has been placed in the impugned judgment upon the unconstitutionality of Section 125(2), we think it would be in consonance with justice that the entire judgment and order that is impugned should be set aside and the criminal revision application restored to the file of the High Court for being decided afresh without reference to the impugned judgment.

5. The appeal is allowed, the judgment and order under appeal is set aside and Criminal Revision Application No. 1362 of 1994 is restored to the file of the High Court to be considered afresh as aforesaid, after giving to the parties an opportunity of being heard.

6. Pending the disposal of the criminal revision application by the High Court, the husband-appellant shall pay to the respondent-wife interim maintenance in the sum of Rs 500 per month regularly and all arrears thereof, if any, shall be cleared within six weeks from today. Learned counsel for the husband-appellant undertakes to court that interim maintenance and arrears shall be paid as aforestated.

7. The husband-appellant shall pay to the respondent-wife the costs of this appeal, quantified in the sum of Rs 3000.