Civil Procedure Code (CPC)

Interim order of maintenance u/s 125 crpc unconstitutional ?

Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Is Interim Order of Maintenance U/S 125 CrPC Unconstitutional and Against The Morality of UDHR?

       125 CrPC
I am writing this article by exercising my fundamental rights conferred by Article 19 sub section 1(a) of Constitution of India.

 

More clues on My Facebook link: - 

https://www.facebook.com/RockySmith4Calcutta/

 

Dear Friends,

I have collected some point by that it can be proved that interim order of maintenance u/s 125 CrPC is unconstitutional. Before we start we must have a close look thoroughly the UDHR , Constitution of India, CrPC 125 bare act and Indian Evidence Act from the following links. If somebody reads total 30 Articles of Universal Declaration of Human Rights (UDHR - link given below) of UNO (United Nations Organisation ) closely then he/she must understand that these are all gender, race, place of birth and religion neutral. These articles impede any nation (or its parliament) to create any such laws/acts by which they may rule like medieval barbaric and autocrat way (Like Taliban Law). India is also member of UNO and signatory of UDHR. Fundamental rights, Economic Social and Cultural rights conferred by Indian constitution is primarily the subset of these articles. However Not all. These Fundamental rights, Economic Social and Cultural rights conferred by Indian constitution impede Indian parliament to abridge human rights of Indian and autocracy of Indian parliament. Universal Declaration of Human Rights (UDHR) adopted by UNO is the prime law framework of every nation and the root node of law hierarchy of every nation. It is our absolute duty to establish Universal Declaration of Human Rights Adopted by UNO to everywhere on the globe .

INDIA IS A SIGNATORY OF UDHR.

UDHR (Universal Declaration of Human Rights)

http://www.claiminghumanrights.org/udhr_article_30.html

The Constitution of India.

https://indiankanoon.org/doc/237570/

CrPC 125 Bare Act.

https://indiankanoon.org/doc/1056396/

Indian Evidence Act

https://indiankanoon.org/doc/1953529/

 

Grounds of Public Interest Litigation(PIL) under Article 32 of Constitution of India.

 

Note: - Filing PIL is a fundamental right of all Indian under aforesaid article. There is no such law that hiring an advocate is necessary to plead any case. Any person can plead any case by securing power of attorney with the subject of "PERMISSION OF COUNCIL" u/s 32 of Advocate Act.

 

1) The basic concept of Indian Judiciary is presumption of innocence in criminal trials as per Article 11: Right to the presumption of innocence of UDHR. "It is better that ten guilty persons escape than that one innocent suffer" – Sir William Blackstone. “Our basic concept of Jurisprudence that let the 100 culprits may go free but no innocent should be punished.” The Supreme Court of India Sampath kumar -Vs- Inspector of police, krishnagiri which was decided by their Lordships of Apex court Justice T.S.Thakur.

However, Interim order of maintenance is awarded to wives by assuming that the submission of facts by them are true and by presuming guilty of all husbands.

 

2) As per Article 20(3) "No person accused of any offence shall be compelled to be a witness against himself."

However, husbands are pressurized to disclosed their private data like, income details, bank statements to extort them and wives are not pressurized.

 

3) As per CrPC 125 (4)" No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. "

However, interim order of maintenance is awarded without examining the truth of her submission of facts.

4) As per Indian Evidence Act; Section 101. Burden of proof.—"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

However, interim order of maintenance is awarded without examining her asserted facts on the petition where such fact exist or not where burden of proof of existences of such fact lies on her head.

5) As per Indian Evidence Act; Section 102. On whom burden of proof lies Illustrations (a) "A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. "

Here A is the petitioner wife and B is the responded husband. A asserts that matrimonial disputed facts exist due to the fault of B. A also asserts that she is unable to maintain herself without any valid reason and proofs. Before interim order "no evidence were given on either side" B should be entitled as innocent, however B is presumed as guilty and A is allowed to extort his money by Dacoity.

6) All are equal irrespective of race, s*x, religion and place of birth as per Article 7: Equality before the law of UDHR and Article 14. of Indian Constitution. Also as per Hindu Marriage Act (HMA) not only wives but also husbands are eligible for maintenance and alimony.

However, as per CrPC 125 section 1(a) only wives are entitled for maintenance. Also as per CrPC 125 secion 1(d) only son is liable to maintain his parents but not daughter.

7) Discrimination based on race, s*x, religion and place of birth is prohibited as per Article 15 on Indian Constitution. Limited discrimination is allowed only on public property as per Article 15(3) as the its limitation/scope is within Article 15(1) and (2)

However, maintenance/alimony laws are gender biased, where these are awarded from husband's personal property.

There is one good article on https://themalefactor.com/2013/12/29/article-153-of-indian-constitution-when-exception-is-the-rule/

8) Article 15(3) gives NO POWER to the state (The definition of the STATE is as per Article 12 of Indian Constitution) to abridge, truncate or narrow down any right conferred by Article 14 since its scope and limitation is withing within Article 15(1) and (2) . Hence all gender biased laws like 498A, PWDVA, 125 CrPC, 497, 495, all Rape related laws are unconstitutional.

However, ministry of women and child exceeds its power limits and created gender biased laws.

9) No maintenance for wives who cant prove cruelty: BOMBAY HC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO.226 OF 2002

Sanjay Sudhakar Bhosale, Age : 35 years, Occu.Service,

However, interim order of maintenance is awarded to wives by presuming husband as guilty without examining truth of submitted disputed facts.

 

10) This is very unfortunate that Indian male are prosecuted on such laws those are not only unconstitutional but also against the moral value of human rights (UDHR). These entire story deprives Article 3: Right to life of UDHR and Article 21(Right to life) of Indian Constitution.

 

Jai Hind!

Rocky Smith.

https://www.facebook.com/RockySmith4Calcutta/

 


Total likes : 1 times

 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Dear Friends,

 

One Important thing I forgot to mention here,

 

Please use Protection of Human Right Act 1993Hindu Marriage Act, Indian Evidence Act and CrPC 125 Bare Act on the subject matter of the petition along with Article 14, 15, 19 and 21 of Indian constitution along with Article 32 of Constitution of India. Else our smart judges of the constitutional bench of Apex court may argue with you like - “We don’t have determination of UDHR on this constitutional bench” wink.

 

Please check the Section 2(d) and 2(f) of Protection of Human Right Act 1993 for the definition of human rights. Link given below.

 

https://indiankanoon.org/doc/87575/

 

embodied in the International Covenants and enforce­able by courts in India” – here

International Covenants” means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966 and such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify

 

Hence “International Covenants” means UDHR.

 

Also includes prayer section like –

 

1) To declare interim order of 125 CrPC as unconstitutional.

 

2) If complainant cannot prove the guilt of accused, then the petition should be auto-disposed-off with accused (husbands) favor within 6 months as per section 21-B of Hindu marriage act from the date of the case has been registered.

3) Anymore relieves that honorable SC may deem fit. 

 
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It would also apply to domestic violence.
 
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It would also apply to domestic violence.
 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Originally posted by : Hb
It would also apply to domestic violence.

 

 

Yes Correct.  yes

 

The STATE (as per Article 12 of Constitution of India) has NO POWER to abridge, truncate or take away any single human right of men in the name of "Women Empowerment" (Article 15(3) of Constitution of India) under Article 30 of UDHR.

This is
Crime Against Humanity. We also can appear before International Criminal Court (ICC not ICJ). 

 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

HUMAN RIGHTS MUST DOMINATE OVER SOCIAL JUSTICE.

Dear friends,

The parliament is the temple of “social justice”. Legislatures of the parliament are elected by majority of vote of the people. It is the duty of legislatures to understand and respect peoples’ demand and act accordingly.

However,
The Supreme Court is the temple of “human rights”. It is also possible that those majority of people may be illiterate, under-educated, criminal minded or not enough competent to judge larger scale of public interest and welfare. That is the reason, there are 30 articles of UDHR. 

If tomorrow majority of people says that theft is a virtuous deed,  their elected legislatures in the  parliament accept the same and amend Indian law accordingly then, is it right?

Hence,

the parliament has freedom to create any rule/act/laws as per public demand however, no such rule/act/laws can narrow down or take away any human rights written on UDHR.

There should be always a BALANCE between Parliament and Supreme Court. It is the duty of SC to check if any such rule/act/laws passed by parliament is breaching UDHR or not as SC is the guardian of UDHR and the temple of "human rights".

These BALANCE is a necessity and part of infrastructure of democracy.

IT HAS LOST IN INDIA NOW-DAYS.

Please think about it deeply.

Thanks,
Rocky. 

 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Originally posted by : Adv Kamakshi (Nellore)
What ever citation you want to give.  However best you argue.  Yo ufall to the judges feet.  Nothing will work due to article 226.  I have experienced it myself.  So I am telling.

 

We all forget that there are both options in law. To get away easily.  To fight and get away.

Always the mutual divorce is best option.  Nobody can complain or hold grudge.

On other hand Rockys method is also good, but it may work. It may not work.  There is very good relationship between judges and advocates.  They both support each others bums.  They will ensure that justice is delayed to the point that their tummies become full and the petitioners will be left in lurch.

 

Best way is opt for mutual divorce and finish matter instead of feeding advocates and judges. Feed some poor ppls. That is more benevolent act than anything else.

Since, there is a good nexus between advocates and judges, never go for mutual, I have advised about "Negative Rights" on my page. Please check that.

Matrimonial advocates have no solution of matrimonial disputes except "Mutual".

Also be prepared to file petition before ICC as we don't have trust on Suprme Court also. 

 
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Instructor @ Calcutta (rockysmith4calcutta@gmail.com)

Originally posted by : Adv Kamakshi (Nellore)
Why boss international criminal court you are suggesting? Instead of that it is better to adjust with each other as even in SC there are crooks sitting to judge your case. Better not go to court is your suggestion?

Thanks boss for your question, I think I have already written the answer of your question above.

One additional doubt, that I have, is, even though, SC gave judgement to establish “Human Rights Courts” at the district level, no such court has been established yet, that means, I doubt both Govt. and SC never honestly wish human rights to be establish every geographical point of India.

 
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