Law of Maintenance by Shashi Kiran

Chapter 1

Alimony SYNOPSIS Introduction........................................1 Object .................................................4 Adultery ..............................................4 Agreement between parties ................6 Attachment of property ......................7 Cancellation of order .........................7 Christian law......................................8 Claim in appeal ..................................9 Conduct of parties ..............................9 Consent decree .................................12 Considerations for granting alimony13 Contracting out ................................14 Death of husband .............................15 Discretion of Court ..........................16 Disentitlement ..................................17 Dismissal of proceeding ...................17 Distinction with maintenance...........20 Divorce due to mental disorder .......21 Effect of desertion ............................22 Effective date of modification ..........23 Employed wife ..................................23 Entitlement only after divorce ..........24 Formal application ..........................24 Grant of alimony in civil suit ...........25

Insufficient income ........................... 25 Interim order .................................... 26 Lawyer wife ...................................... 26 Lump-sum payment .......................... 27 Maintenance continued as alimony ......................................................... 27 Meaning of ‘husband’ and ‘wife’..... 28 Modification of order ....................... 28 Nullity marriage............................... 29 Offer of re-union .............................. 32 Powers of Appellate Court ............... 33 Pregnant wife ................................... 33 Procedure ........................................ 34 Quantum .......................................... 34 Remarriage ...................................... 36 Resumption of cohabitation ............. 37 Right after passing of decree ........... 38 Stage of granting alimony ................ 38 Subsisting marriage ......................... 39 Territorial Jurisdiction .................... 39 Withdrawal of petition ..................... 40 Written Application .......................... 40 Young wife ....................................... 41

Introduction There are various provisions of different statutes dealing with personal laws which deal with the question of alimony. These statutes are Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act, 1936 and Indian Divorce Act. The relevant provision of these statutes are dealt with in this chapter with reference to the judicial precedents. These provisions are also being extracted hereafter. Section 25 of Hindu Marriage Act, 1955 is as under:

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Permanent alimony and maintenance.— (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. (2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the Court is that the party in whose favour an order has been made under this section has remarried, or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just. Section 31 of J&K Hindu Marriage Act, 1980 is also in verbatim with the above provision. However section 37 of Special Marriage Act, 1954 is as under: Permanent alimony and maintenance.— (1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree on application made to it for the purpose, order that the husband, shall secure to the wife for maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as having regard to her own property, if any, her husband’s property and ability, the conduct of the parties and other circumstances of the case it may seem to the Court to be just. (2) If the District Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the District Court is satisfied that the wife in whose favour an order has been made under this section has remarried, or, is

Alimony—Introduction

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not leading a chaste life, it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the Court may deem just. Section 40 of Parsi Marriage Act, 1936 is as under: Permanent alimony and maintenance.— (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as, having regard to the defendant’s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the respondent. (2) The Court if it is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party vary, modify or rescind any such order in such manner as the Court may deem just. (3) The Court if it is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just. Section 37 and 38 of Indian Divorce Act, 1869 are as under: 37. Power to order permanent alimony.— The High Court may, if it thinks fit, on any decree absolute a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties. Power to order monthly or weekly payments.— In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

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Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as to the Court seems fit. 38. Court may direct payment of alimony to wife or to her trustee.— In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do. The above provisions are though not identical except some discerning features which have been dealt with at appropriate places, but lay down provisions relating to Alimony.

Object Alimony is not a consequential order of a decree for divorce, but is a continuing obligation on the party. It is better to provide for the maintenance of the other party who is weaker between the two. 1

Adultery An applicant is entitled to maintenance notwithstanding the kind of matrimonial decree that is passed and the ground on which it is passed. A decree passed against the applicant on the ground of unchastity is no bar to his or her claiming maintenance either at the time of passing such decree or any time subsequent thereto. 2 The Court has ample discretion to grant or refuse maintenance, and the extent to which the grant the same, depending on the facts and circumstances of each case. The legislature did not intend to lay down a rule that in all cases where the claimant has been proved to be unchaste, he or she should be denied maintenance. On the contrary, the legislative approach on the subject appears to be liberal, reformative and conciliatory. The legislature had to be pragmatic on the subject since all acts of unchastity cannot be painted with the same brush. In one case, a single fall from virtue may brand a person unchaste while a persistent unchaste conduct in other case may remain unnoticed for a long time. Similarly, a person may become a victim of a helpless or an uncontrollable situation in one case while another case may reveal a 1 2

Raj Virendra Singh vs. Virendra Singh (Lt. Col.), 1985 (9) DRJ 288 See section 37 of Indian Divorce Act, 1869

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defiant debaucherous conduct. There may be cases where the opponent is directly or indirectly a contributory party to the unchaste conduct of the applicant. The circumstances in which decrees on the ground of unchastity are passed may also differ from case to case. No two situations are comparable much less similar. Life is complex and human behaviour inscrutable and complicated. What is more, in a country like ours inhabited by social groups with diverse social modes, customs and practices ethical norms, moral concepts and cultural patterns, no uniform standard of personal and social conduct including that a matrimonial fidelity can be laid down. Much less can such conduct be judged by a single norm. This consideration appears to have weighed with the legislature in refraining from being dogmatic on the subject, and in adopting a realistic approach in the matter. The deliberate change in the language brought about by the amendment amply proves the said intent. Hence, however repugnant of repulsive may appear the idea to a mind traditionally steeped in one set of moral code, the section does not disentitle a party to maintenance even if a decree is passed against him or her on the ground of unchastity. 1 This view need not therefore oppress even the orthodox mind. If according to the old law, even a woman who had left her home expressly for living an adulterous life and had persistently led it for some time, was entitled to at least a bare subsistence after she renounced it, there is much to be said in favour of the view that a decree passed on the ground of unchastity will not by itself be sufficient to disentitle her to maintenance under the present provisions. It is common knowledge that the Act has been placed on the statute book to reform the old law by removing some of its oppressive, unjust and outworn provisions and introducing modern and progressive measures. It will therefore be against both the letter and the spirit of the Act to hold otherwise. 2 In another case it was observed that ‘Court is in a dilemma as to whether to grant the relief of divorce to the appellant, while his hands are dirty with matrimonial offence. But the unfortunate respondent, who has suddenly became fertile and cannot resist another man, should not be allowed to be tied down with the appellant for life. No doubt, status quo is not the demand of justice. It is also not the demand of social norm. Status quo will further stagnate the life of these parties. Both need release from the religious and legal bondage, and to prevent further bigotry, falsehood and fornication, it is just and proper to separate them 1

2

Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985) DMC 83 Bombay. Gulab Jagdusa ibid

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now, before further damage is done. The real damage is done to Rajni, aged 5 years, innocent who does not even know as to who her father is. My heart bleeds for her. The legendary sexual urge of a female has burdened this society with Rajni. May God bless this innocent child and grant her with fortune, intelligence and diving and, thus, to become a legendary woman of this country. My heart goes out to her predicament. …. This decree of divorce of divorce is going to cost the appellant heavily. Keeping in view the appalling condition of inflation, under the provisions of Section 25 of the Act, it was directed that the appellant shall pay a permanent alimony to his wife-respondent, Rs. 150/- per month from the date of this judgment.’ 1

Agreement between parties Section 25 of the Hindu Marriage Act, 1955 postulates the exercise of an agreement fixing maintenance. It is by virtue of Section 25 of the Act that the amount of maintenance agreed to in the agreement can be altered provided there is material change in the circumstances. This is irrespective of any clause to the contrary in the agreement. When amount of maintenance has been fixed by the parties in an agreement not only the parties are entitled to the amount of maintenance but any party to the agreement can also approach the Court seeking alteration in the amount of maintenance due to change in circumstances. 2 In another case the parties entered into a compromise with regard to permanent alimony under Section 125 Criminal Procedure Code, 1973. Except the bald statement of the wife and the oral rebuttal of the husband, there was nothing before the Trial Court to infer as to how much earning the respondent was making. It was in this background that the Trial Court presumed the income of the respondent husband at Rs.3,000/- and awarded a sum of Rs.1,000/- as maintenance inspite of the fact that in her petition under Section 125 Criminal Procedure Code, 1973 she voluntarily accepted the maintenance of Rs.400/- per month. Therefore, it was held that there was no infirmity in the impugned order. 3 Transfer of property in lieu of maintenance in terms of the deed. Such document compulsorily requires registration under section 17 and

1

2

3

Hargovind Soni vs. Ramdulari, AIR 1986 MP 57: 1986 MPLJ 105: 1986 Mat LR 86: (1986) 1 DMC 457: (1986) 1 Civ LJ 665: (1986) 1 Hindu LR 543: 1986 Cur Civ LJ 228: (1986) 2 Hindu LR 1. Ravi Singhal vs. Manali Singhal, II (2000) DMC 732 Delhi: 2000(87) DLT 658. Asha Alias Darshan vs. Jai Dayal, 1997 (40) DRJ 1

Alimony—Cancellation of order

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49 of Registration Act, 1908. Such document cannot be looked into for ascertaining the nature of possession of property. 1

Attachment of property In one case the petitioner had asked for permanent alimony under Section 37 of the Act and in case she succeeded in getting the order of judicial separation under Sections 22 and 23 of the Act in her favour and against the respondent, she would be entitled to the grant of permanent alimony. It was held that therefore, there should be left some security in the form of immoveable properties or otherwise which should be sufficient and adequate enough for the grant of permanent alimony under section 37 of the Act and that the house of husband can be adequate security for the payment of permanent alimony to the petitioner in case it is granted by the Court because every Court has inherent power to grant relief during the pendency of the proceedings if the interest of justice so requires. 2

Cancellation of order Under Section 25(1) of Hindu Marriage Act, 1955, a gross sum can be decreed. In terms, sub-s. (3) does not restrict the powers of the Court to rescind only the payment of monthly and periodical sums. Subsection (3) has been widely couched and prima facie it might be made applicable to rescission of an order awarding a gross sum. Though the matter is not free from difficulty on account of the inartistic language in which the section has been worked and the absence of any authority on the point, on a close scrutiny, the view that a decree awarding gross sum cannot be rescinded appears to be more reasonable. The difference in wording in sub-sections (2) and (3) is somewhat significant. Under sub-s. (2), it the Court is satisfied that there is a change in the circumstances of either party at any time after the order has been made under sub-s. (1), it may vary, modify or rescind any such order in such manner as it may deem just. To illustrate, if the husband had higher income at the time of the decree, but he becomes indigent later on and is not in a position to pay the sums towards maintenance, the Court may step in to reduce the amount. Similarly if the wife gets an employment and earns a substantial income sufficient to maintain herself, the Court may rescind the order or decree granting maintenance. Thus in case of change in circumstances,

1

2

Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo, AIR 1981 SC 1937: 1981(4) SCC 613: 1982(1) SCR 417: 1981(3) Scale 1425 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185 Del.

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the Court has been given ample power either to vary, modify or rescind the order. 1 Under sub-section (3), however the Court has been given the power only to rescind. The word ‘rescind’ means to annual or cancel. If the conditions prescribed under sub-s. (3) exist, that is, if a party in whose favour the order has been made remarries, or, if such a party is the wife and she does not remain chaste, or, if such a party is the husband and he has had sexual intercourse with any woman outside wedlock, the Court shall rescind the order. In case of payment of monthly or periodical sums, the Court can rescind the order as such payments relate to future payments only. Conferring power on the Court to annul future payments after accrual of cause of action as prescribed in sub-s. (3) appears to be reasonable. The same argument does not, however, apply to rescission of an order granting gross sum, which would amount to annulment of a past liability and not a future one. Such annulment also would lead to an absurdity inasmuch as the past dues accruing in favour of the wife in between decree and the remarriage cannot be rescinded under the sub-section as such liability constituted an integral part of the gross sum decreed. The past and future liabilities constituting the gross sum are not severable. Rescission of such an indivisible liability cannot therefore be countenanced. 2

Christian law When the suit filed by the husband was dismissed hence the grant of maintenance is irregular. Section 36 of the Indian Divorce Act provides that the wife may present a petition for alimony pending the suit. The Court on being satisfied on the truth of the statement therein contained, may such order on the husband for payment to the wife of alimony pending the suit as it may deem just. Section 15 of the Indian Divorce Act also provides that in any suit instituted for dissolution of marriage, if the respondent opposes that relief sought on the ground, in case of such suit instituted by a husband, of his adultery, cruelty, or desertion without reasonable excuse, or in case of such suit instituted by a wife, on the ground of her adultery and cruelty, the Court may in such give to the respondent on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion. Thus, it is seen that the Court has power to grant maintenance pending suit under Section 1

2

Nanigopal Chakravarty vs. Renubala Chakravarty, AIR 1965 Orissa 154: 31 Cut LT 205. Nanigopal Chakravarty vs. Renubala Chakravarty ibid.

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36 of the Indian Divorce Act and has power to order maintenance under Section 37 of the Indian Divorce Act only when a decree is made absolute decelerating the marriage to be dissolved, or on any decree of judicial separation obtained by the wife. Permanent alimony and maintenance can only be granted in case divorce is granted and if the marriage between parties subsists. If the petition by the husband as in the instant case fails, then no decree is passed, i.e., the decree is denied to the husband. Alimony, cannot, therefore be granted in a case where a decree for divorce is reused. Ultimately alimony on a permanent basis as maintenance is given to an ex-spouse and if a petition fails, then the marriage still subsist unaltered by the intervention of any decree and the normal rights of the parties to be found in the legal system under which they are married has to prevail. Thee is no question of granting alimony in such cases, because the matrimonial rights of the parties are to be found in the legal system which operates, requiring one of the parties to support the other and if there is failure to do so, then the other partner can seek maintenance by recourse of the civil or criminal Court. There is no question of granting alimony in such cases. The word “decree” is used in matrimonial cases in special sense different from that in which it is used in Civil Procedure Code. 1

Claim in appeal Merely because a prayer can be made subsequently to the same court would not defeat the right of appeal of a party. Therefore, it is to be considered whether this appeal is maintainable. An appeal lies against an order under Section 25 as provided in Section 28(2). An order under Section 25 of the Act envisages either refusal of the relief or grant of the same. Therefore when a Court has power to deal with an application subsequent to the decree in a proceeding, ignoring the same cannot be said to be an order. In the circumstances there being no order under Section 25 of the Act, the appeal is not maintainable. 2

Conduct of parties Apart from the property or income available to either the husband or the wife, the relevant factor is the conduct of the parties by which one may reasonably understand the conduct not merely of a wife who applies

1

2

Winfred Dhanraj Sameul vs. Betsy Ratnakumari, II (1992) DMC 219 Mad. Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184: (1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Cut LT 417: (1987) 1 Hindu LR 222.

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for or claims alimony but also of the husband in relation to their life together as husband and wife. 1 In Patel Dharmshi Premji vs. Bai Sakar Kanji, 2 permanent alimony and maintenance were claimed long after the passing of the decree of divorce, and the person who claimed maintenance was also guilty of not obeying the decree for restitution of conjugal rights. When an objection was taken that Section 25 cannot be invoked by a wife after a decree of divorce had been passed against her and an erring wife cannot maintain an application under Section 25 of the Hindu Marriage Act, the Court held that under Section 25, permanent alimony can be granted to a wife even after a decree of divorce had been passed against her as that section specifically use the words “at any time subsequent threreto” and that maintenance can be granted thereunder even to an erring spouse and that the mere fact that the wife did not comply with the decree for restitution of conjugal rights and that was the cause for passing of a decree against her, cannot by itself disentitle her to claim permanent alimony under the section. In that case, Bhagwati, J., as he then was, referred to the following observations of Denning, LJ., in Sydenbam vs. Sydenbam and Illingworth. 3 “There is nothing in the statute to say that a wife against whom a decree has been made cannot be awarded maintenance, and there is nothing in it about discretion being exercised in favour of one side or the other or about a compassionate allowance. All it says is that on a decree of divorce the Court may award maintenance to the wife. This includes a guilty wife as well as an innocent one but, in awarding maintenance the Court must have regard, of course, to the conduct of the parties.” His lordship also referred to the observations of Hodson, LJ in Clear vs. Clear, 4 wherein a difference has been made in a common law right to get maintenance and the right to get maintenance arising by virtue of divorce legislation, and that even it the wife has forfeited her right to get maintenance under the common law, she is entitled to get maintenance under a provision of the divorce legislation. After making reference to the above observations of Denning LJ and Hodson LJ., it was pointed out in the Gujarat Case that under Section 25 Hindu Marriage Act, 1955, permanent alimony can be granted to even an erring spouse and that the fact that the wife was the guilty spouse can only be

1 2 3 4

Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB). AIR 1961 Gujarat 150 (DB) (1949) 2 All ER 196. (1938) 2 All ER 353

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taken as a relevant factor in assessing the conduct of the parties and in determining the amount of permanent alimony. 1 It may be noted that the conduct of the parties is otherwise a relevant criterion under section 37 of Divorce Act, 1869. In case, the marriage has been dissolved under Section 13(1) (ia) of Hindu Marriage Act, 1955 on the ground that the wife was living in adultery or was leading an immoral life, her application for permanent alimony may be dismissed on the ground that even after the decree of divorce she continues to lead such a life. 2 In case on non compliance of decree for restitution of conjugal rights, the wife could show that although she did not comply with the decree for restitution of conjugal rights she could provide some cause to live away from the husband by supporting the same by evidence. But she had not raised any plea whatsoever as to why she is willing to live away from her husband. In execution proceedings her stand was that she had danger to her life. In those proceedings, she led no evidence on that aspect of the matter and if on perusal of that evidence it could be concluded that there was really some apprehension to her from the side of the husband of her-in-law, probably, she would have had a good case but when no evidence having been brought on record, the fact remains that as a wife, she wants to live away whereas the dicta of law is that she must go with her husband. In such case of divorce the tie of marriage ceases to exist between the parties and after divorce, the former husband cannot say that he is prepared to keep his former wife in his house and will provide her all necessities of life. After divorce she has to live away and for that she becomes entitled to maintenance in law except in few cases like re-marriage, on becoming unchaste or for certain allied matters. But in the present case the tie of husband and wife still continues in spite of grant of decree for restitution of conjugal rights and for that reason the husband is very much right is saying that she should come and live with him so that he can provide her with all necessities of life. If in spite of being wife she does not want come and live with the husband, she is not entitled to claim permanent alimony. 3 Another view has been taken by Madhya Pradesh High Court holding that for determining the case for grant of application under 1

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Rajagopalan vs. Kamalammal, I (1982) DMC 171 Madras: AIR 1987 Mad 187: 94 Mad LW 695: (1981) 2 Mas LJ 359: 1982 Hindu LR 23. Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5: 1982 Rajdhani LR 622. Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H.

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Section 25 of the Act the effect of non-reconciliation on the part of the parties should not be blown out of all the proportions. In this case, the wife had deserted the husband and consequently a decree of divorce was granted. It was held that in a Court of law it would be almost impossible to find out the true facts regarding the justification of the conduct of wife. She was required to live with the parents of the husband. She would not able to prove fact for justifying her conduct. The fact remains that she was required to live in strange place without the support of the persons who could adjust with her despite her defects. In that situation refusal of wife to live with the husband may have some justification which she was unable to prove in accordance with law. Consequently, the Court may objectively consider conduct of the husband too along with that of wife or coming to just conclusion. The Court cannot take one sided view of the matter. 1 After adopting the above line of reasoning it was further held that the wife cannot permanently live with her parents for the simple reasons her parents are likely to out live her in normal circumstances where she will go. She is, therefore, entitled to maintenance and it is the legal duty of the husband under Section 25 of the Act to divorcee wife. Considering the case of the appellant with this circumstances along with other circumstances of the case it was held that the application of the wife was not rightly rejected by the Court below. 2

Consent decree The whole purpose of Section 19(2) of the Act was that if conciliation between the parties has been arrived at, the parties are bound by it and cannot wriggle out of it. This is the reason why it has been provided against a decree passed on the basis of compromise. If the arguments of learned Counsel for the appellant were to prevail it would mean that the object of the Act, i.e. conciliation and early settlement of disputes between the wife and husband would be fraught with danger and would be completely outside the aims and objects of the Act. We are accordingly of the considered opinion that in view of the provisions of Section 19(2) of the Act no appeal would be maintainable against the judgment decree of divorce based on conciliation between the parties. As the appeal itself is not maintainable the other submissions need not be considered. 3

1 2 3

Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP. Archana Singh vs. Dharampal Singh, ibid. Ajay Kapoor vs. Pramila Kapoor, I (1992) DMC 85 All.

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Considerations for granting alimony In the matter of payment of permanent maintenance by the Privy Council in Ekradeshwari vs. Rameshwar, 1 as under: “Maintenance depends upon a gathering together of all the facts of the situation, the amount of free state, the past life of the married parties, and the families, survey of the condition and necessities and rights of the members on a reasonable view of change of circumstances possibly required is the future, regard being of course had to the scale and mode of living, and to the age, habits, seats (?) and class of life of the parties. In short, it is out of a category of circumstances, small in themselves, that a safe and reasonable induction is to be made by a court of law in arriving at a fixed sum.” 2 While fixing permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, 1955, the court is expected to make detailed inquiry and has to take into account not only the income but other properties of the parties, their conduct and other circumstances of the case that the court might consider relevant. The following principles 3 would appear to be relevant for the purpose: (1) position and status of the parties; (2) reasonable want of claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); (3) income of the claimant; (4) income of the opposite party; (5) number of persons opposite party is obliged to maintain. Two corollaries may be added here: (1) In arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc. are to be excluded; and (2) though under the law opposite party may to be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable to maintain themselves, the court may in a given circumstance consider the expenses to be incurred on the maintenance of brother or sister by the opposite party.

1 2

3

(1929) 56 IA 182 Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984) DMC 11 Bombay. Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988 (2) DMC 110: 1988 RLR 428

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After all, court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act. 1 Where the parents were facing problem of life of such daughter in all matters and ultimately, in the net analysis, the divorced daughter would be left alone, cursed by the society and a burden on herself both, socially and economically. She may or may not have any shelter to live in it and bread to eat. In the instant case, she is illiterate admittedly and that would add insult to injury because she would not be able to earn anything. The remarriage is very difficult, for-fetched proposition in most of the communities amongst Hindus. In view of this, permanent alimony should be substantially a relief to her at least. 2

Contracting out The case of Hirabai Bharucha vs. Pirojshah Bharucha 3 stems from proceeding under Section 40 of the Parsi Marriage and Divorce Act 1936. under this provision, a Court is authorised to award permanent alimony to a wife either at the time of he passing of any decree under that Act or subsequently thereto. The wife is granted a decree of divorce. After the decree is passed, the husband and wife arrive at certain consent terms. One of the terms of the consent order is: “This Court both declare that the defendant hereby agree not to claim any alimony now or at any time in future”. The wife applied under Section 40 for alimony. It was held that on grounds of public policy the wife cannot enter into a contract that she will not claim any alimony in future. The contract was void and the Court will take notice of that and ignore that part of the order although it was made by consent. Reliance was placed upon a remark of Lord Atkin: “The wife’s right to future maintenance is a matter of public concern which she cannot barter away.” Accepting this proposition, the court in above case took the view that the wife can not barter away her right to future maintenance and enter into a contract to that effect and such a contract will be a void contract in the eye of law.

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3

Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988 (2) DMC 110: 1988 RLR 428 Shanti Devi vs. Raghav Prakash, II (1985) DMC 85 Raj: (1985) 1 WLN 437: 1985 Rajasthan LR 536: (1985) 2 Cur CC 305: (1985) 2 Hindu LR 301: AIR 1985 Raj 13 AIR 1945 Bombay 537

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In another case arising out of Hindu Marriage Act, 1955 it was held that assuming a wife gives up her right to claim a higher rate of maintenance allowance in future, her consent will not bring into existence a valid contract. Such an agreement will not only defeat the provisions of Sub-section (2) of Section 25 but will also frustrate the purpose of giving maintenance. Judicial notice can be taken of rising prices with the result that the cost of bare existence is regularly rising, rather mercurially. In principle, it makes no difference between an agreement by a wife not to claim any alimony at all and an agreement not to claim any enhancement of the rate of maintenance allowance, whatever be the change in the circumstances. 1

Death of husband One view is that the payment of alimony is, by its very nature, a personal obligation and this being so, it must inevitably come to an end with the deceased husband no longer being there to fulfil it. Further, it is equally clear that the amount payable as alimony does not ipso facto become a charge on the respondent’s property. A plain reading of Section 25 of the Act would show that such a charge can be created only by a specific order to that effect in terms of the provisions thereof. In other words, the section contains en enabling provision regarding creation of a charge on the immoveable property of the respondent to secure the payment of alimony, but it nowhere lays down that such a charge shall be inherent in an order awarding alimony. Admittedly, no such order had been passed in the present case. Alimony, being at any rate a right enforceable against the husband in personam, it must be deemed to have ceased with the death of the husband. 2 However another view is that there is no rationality in the contention that a decree for maintenance or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband’s property would not get so extinguished. A decree against the husband is executable against the estate of the husband in the hands of the heirs and there is no personal liability. In law a maintenance decree would not make any difference. The decree indicates that maintenance was payable during the life time of the widow. To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree and the appellant has

1 2

Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All. Mst. Gurdev Kaur vs. Mst. Channo, AIR 1986 P&H 251: (1985) 2 Hindu LR 591: ILT (1986) 1 P&H 208: 1985 Recent Laws 205: 1985 (2) 88 Pun LR 603: 1986 Marri LJ 371.

16

Law of Maintenance

taken a stand that though the widow is alive, the decree obtained by her would become ineffective with the passing away of the husband. 1 Where maintenance has been made a charge on the husband’s estate, the death of the husband would not at all affect the decree and not withstanding such death, the estate can be proceeded against for realization of the maintenance dues for post-death period. 2 In regard to the Special Marriage Act it was held that it was a statute of 1954 made by the Indian Parliament after independence. For the interpretation of a provision of this statute there is no warrant to be guided by English decisions. There is no ambiguity in Section 37 for the interpretation of which it is necessary to go beyond the provision itself. It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefit under a decree to be lost unless there be any special reason for it. In incorporating a provision like Section 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance. If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree. 3

Discretion of Court Sub-section (3) provides for varying, modifying or rescinding of the order of maintenance in two eventualities viz. the beneficiary of the maintenance order has remarried or has not remained chaste. Even in such case the maintenance order is not necessarily to be varied, modified or rescinded but may be varied or modified or rescinded or only varied or modified instead of being rescinded and that too in such manner as the court may deem just. The history of the sub-section shows that prior to its amendment by Act 68 of 1976, for the words “it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just” the words were ‘it shall rescind the order”. The deliberate change which the legislature has made in the language of the sub-section therefore shows that the Court is given a wife discretion in the matter depending upon the facts of each case. It is necessary to emphasize this discretion vested in the Court 4 discussed above, appear to 1

2 3 4

Aruna Basu Mullick vs. Dorothea Mitra, II (1983) DMC 289 Supreme Court. Aruna Basu Mullick vs. Dorothea Mitra, ibid Aruna Basu Mullick vs. Dorothea Mitra, ibid. the decisions in AIR 1967 Kerala 181 and AIR 1970 J&K 150 were dissented

Alimony—Dismissal of proceeding

17

have proceeded on the assumption that this sub-section vests no discretion in the Court and the court has to cancel the order of maintenance once unchastity of the party is proved. It has also to be remembered that these decision were prior to the amendment of subsection (3). 1

Disentitlement Wife committing act causing miseries to husband and continue to harass the husband even after the dissolution of marriage. Rarest of rare case in which wife extracted further sum with the help of police from the husband, it was held that the amount of alimony cannot be enhanced any further. 2 The effect of non-reconciliation on the part of the parties should not be blown out of all the proportions. In this case, the wife had deserted the husband and consequently a decree of divorce was granted. In a Court of law it would be almost impossible to find out the true facts regarding the justification of the conduct of wife. She was required to live with the parents of the husband. She would not able to prove fact for justifying her conduct. The fact remains that she was required to live in strange place without the support of the persons who could adjust with her despite her defects. In that situation refusal of wife to live with the husband may have some justification which she was unable to prove in accordance with law. Consequently, the Court may objectively consider conduct of the husband too along with that of wife or coming to just conclusion. The Court cannot take one sided view of the matter. Wife cannot permanently live with her parents for the simple reasons her parents are likely to out live her in normal circumstances where she will go. She is, therefore, entitled to maintenance and it is the legal duty of the husband under Section 25 of the Hindu Marriage Act, 1955 to divorcee wife. 3

Dismissal of proceeding The word ‘decree’ as used in Section 25 cannot be understood in a sense different from that, in which it is used in other provisions of the Act. No doubt, the Code of Civil Procedure gives a different definition to the word ‘decree’ than that in Hindu Marriage Act, 1955. Alimony can be granted on a proper construction of the Act only when a decree has been passed of the type mentioned earlier. If a decree has been passed of 1

2 3

Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985) DMC 83 Bombay. Kiran Mandal vs. Mohini Mandal, 1995 (1) DMC 312 P&H (DB) Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP.

18

Law of Maintenance

the type mentioned earlier. If a decree is refused, then no order for alimony can be passed. The word ‘decree’ is used in matrimonial cases in a special sense different from that in which it is used in the Code of Civil Procedure. There is no doubt that alimony cannot be granted in a case where a decree is for divorce other decree is refused because in such a case the marriage still subsists. 1 The fact that the petition of the petitioner spouse was dismissed would not be a bar to the granting of maintenance to the successful spouse. Depriving the respondent of the alimony granted to her would be to leave her destitute, for she certainly does not have the means to live. The only relation she has in the world is a brother who is not in a position to give her succour which is inferred from the fact that she was put up with all manner of humiliation rather than take a refuge with her brother. Where a woman is so defenceless, it would be a travesty of justice if technicalities prevail and deprive her of the small consolation which she has got by way of future alimony. 2 The other view is that when the application filed for divorce is dismissed, there is no decree within the meaning of “any decree” in Section 25 of “the Act”. Therefore, the application filed by the wife for permanent alimony under Section 25 of the “the Act” will not lie. 3 The expression “passing any decree” has been given a meaning of decree whereby relief has been granted, a decree as contemplated in Section 9 to 13 and this expression has not been given a meaning so as to include the dismissal of the petitions contemplated under Section 9 to 13. 4 The language of Section 25 is plain enough to indicate that the Court is not entitled to pass such an order while dismissing the petition. The words “at the time of passing any decree” do not include the case of a dismissal. The passing of an order of dismissal cannot be regarded of the passing of a decree. 5 1 2

3

4

5

Sushma vs. Satish Chander, II (1983) DMC 255 Delhi. Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR 1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495: (1989) 1 Hindu LR 708. P. Shankar vs. P. Vasanthi, AIR 1995 AP 155 (DB): 1995 (2) DMC 313 (DB) AP Darshan Singh vs. Mst. Daso, AIR 1980 Raj 102: 1979 WLN 412: 1979 Raj LW 546: 1980 Hindu LR 454: 1980 Mat LR 244: 1979 WLN 695. Akasam Chinna Babu vs. Akasam Parbati, AIR 1967 Orissa 163: ILR (1967) Cut 439.

Alimony—Dismissal of proceeding

19

The words, ‘at the time of passing any decree or any time subsequent thereto’ indicate that an order for permanent alimony or maintenance can only be made when a decree granting substantive relief is passed. However, the relief of permanent alimony cannot be given where the main petition for relief under the Act such a divorce judicial separation, etc. is dismissed or withdrawn. 1 When a Court has power to deal with an application subsequent to the decree in a proceeding, ignoring the same cannot be said to be an order. In the circumstances there being no order under Section 25 of the Act, the appeal is not maintainable. 2 Permanent alimony and maintenance under Section 25 of Hindu Marriage Act, 1955, can only by granted in case divorce is granted and not if the marriage subsists. The word ‘decree’ is used in matrimonial cases in a special sense different from that in which it is used in Civil Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means the passing of the decree of divorce, restitution of conjugal rights, or judicial separation and not the passing of a decree dismissing the petition. If the petition fails then no decree is passed, i.e., the decree is denied to the applicant. Alimony, cannot therefore, be granted in a case where a decree for divorce or other decree is refused because in such a case the marriage subsists. 3 The words “at the time of passing any decree or at any time subsequent thereto” contemplate that the jurisdiction under Section 25 can be exercised only when the main petition is allowed and a decree as contemplated by Section 9 to 13 is passed by the Court. For example, had the application for divorce been allowed, the Court would have been competent to pass an order under Section 25. The view that when the main petition is dismissed, the Court has no jurisdiction to pass any order under Section 25 of Hindu Marriage Act, 1955, is supported by a large number of authorities.4

1 2

3 4

Badri Prasad vs. Urmila Mahobiya, AIR 2001 Madhya Pradesh 106. Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184: (1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Vut LT 417: (1987) 1 Hindu LR 222. Ranganatham vs. Shyamala, AIR 1990 Mad 1. Darshan Singh v. Daso, 1 (1981) DMC 210. Gurcharan Kaur v. Ram Chand, AIR 1979 P&H 206, Hiralal v. Lilavati AIR 1961 Gujarat 202, Shantaram v. Hirabai, AIR 1962 Bom 27, Minarani v. Dasarath, AIR 1963 Cal. 428 and Akasam Chinna v. Parbati AIR 1967 Orissa 162.

20

Law of Maintenance

The divergence of judicial opinion of different High Courts as above, however, has been set at rest by the Apex Court in Chand Dhawan (Smt) vs. Jawaharlal Dhawan 1: “It is difficult to come to the view that a claim which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions & Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two i.e., Hindu Succession Act, 1956 and Hindu Minority & Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.” 2 Therefore in view of above a claim or an order granting alimony is not permissible if the original proceedings resulted in dismissal of petition of the plaintiff.

Distinction with maintenance Section 25 of Hindu Marriage Act, 1955 lays down that at the time of passing the decree or thereafter the Court is competent to pass an order for maintenance or support. This is to be on the basis of an application. Ss. 9 to 13 and 23-A use the word ‘petition’. Ss. 24 and 25

1

2

(1993) 3 SCC 406: 1993 AIR SCW 2548: 1993 (3) SCR 954: 1993 (2) DMC 110 Chand Dhawan vs. Jawaharlal Dhawan, SCR 1993(3) 954.

Alimony—Divorce due to mental disorder

21

use the word ‘application’. Thus, the Legislature made a distinction between a petition and an application. Section 25 does not envisage arrears of maintenance. This deals with the future. Moreover, the Legislature intends that the power under Section 25 to be exercised on the basis of an application. Application to a Court requires proper fee to be paid. He mandatory provision of Section 6, Court-fees Act, provides that no Court shall receive a document which is not supported by proper fee. Written statement does not require any fee. The assertion is that court-fee of about Rs. 2,000/- is payable. All these factors indicate that the claim is not one under Section 25 of the Act. Being a benevolent provision the prayer could have been considered liberally to convert the same to one under section 25 of the Act. 1

Divorce due to mental disorder In one case husband sought to deny the wife, the alimony on the ground that she was suffering from mental disorder. The husband had met his wife before the accepted the proposal of marriage with her. This being so, the husband had the opportunity to meet and talk to his wife before he accepted the proposal of marriage. In this background it was observed: ‘It cannot be said that the respondent-wife was guilty of any matrimonial offence or any blameworthy conduct and the ground for granting the decree of divorce is also not such. This being so, the exercise of discretion is granting permanent alimony must depend on property and moral justice. This is a case in which the respondent wife cannot be blamed for the marriage ending in a divorce. The husband himself did not choose to apply for a decree of nullity on the ground that the marriage was in contravention of the condition specified in Clauses (ii) of Section 5 of the Act, because the wife was suffering from mental disorder even prior to the marriage. This conduct of the husband indicates that the husband himself did not believe that the wife was suffering from mental disorder prior to the marriage. He applied for and obtained divorce on the basis that the marriage was valid. In view even of this conduct of the husband indicates that the husband himself did not believe that the wife was suffering from mental disorder prior to the marriage this position, it would not be just and proper to take into consideration the alleged earlier mental illness of the wife as a circumstance for determining the amount of permanent alimony. We much proceed on the basis that the mental disorder on which ground decree for divorce has been granted was not in existence prior to the marriage. In these circumstances, there can 1

Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184: (1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Cut LT 417: (1987) 1 Hindu LR 222.

22

Law of Maintenance

be no occasion to refuse to grant permanent alimony since exercise of discretion under Section 25 of the Act cannot justify a total refusal to grant any permanent alimony.’ 1

Effect of desertion No ‘dry and cut’ solution can be found out for measuring the conduct of desertion in terms of reduction in quantum of maintenance. However, when the legislature has introduced an amendment in Section 25 of Hindu Marriage Act, 1955, it cannot be treated as redundant and should be given effect to logically and legally. It was further held ‘Undoubtedly, the wife in the present case deserted the husband, did not reconcile and return to the husband during the pendency of the first litigation of restitution of conjugal rights. She insisted on remaining separately even when a decree for restitution of conjugal rights was passed, and forced the husband to file a petition for dissolution of marriage, and now the marriage has been dissolved, for which she alone is responsible, she cannot persuade this Court for grant of such maintenance which should be enough for maintaining her and also meeting the expenses should be enough for maintaining her, and also meeting the expenses of the medicines. It is self-invited trouble, for which none else but she is responsible. The act of desertion which was done initially and which has been consistently followed by her, in no case can put premium over her conduct.’ 2 The fact that the wife deserted the husband and that conduct should be considered while deciding the question of permanent maintenance now assumes importance, because admittedly the lower court has not considered this aspect of the matters. It is true that no ‘dry and cut’ solution can be found out for measuring the conduct of desertion in terms of the reduction in quantum of maintenance. However, when the legislature has introduced this amendment in Section 25, it cannot be treated as redundant and should be given effect to logically and legally. Undoubtedly, the wife in the present case deserted the husband, did not reconcile and return to the husband during the pendency of the first litigation of restitution of conjugal rights. She insisted on remaining separately even when a decree of restitution of conjugal rights was passed, and forced the husband to file a petition for dissolution of marriage, and now the marriage has been dissolved, for which she alone 1

2

Mukesh Mathur vs. Veena Mathur, II (1989) DMC 525 Raj: (1988) Raj LW 676: (1988) 1 Rajasthan LR 854: (1988) 2 Civ LJ 718: (1989) 2 Cur CC 499. Umesh Chand vs. Rameshwari Devi, I (1982) DMC 211 Raj: AIR 1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982 Hindu LR 172: 1982 Raj LR 21.

Alimony—Entitlement only after divorce

23

is responsible, she cannot persuade this Court for grant of such maintenance which should be enough for maintaining her, and also meeting the expenses of the medicines. It is self-invited trouble, for which none else but she is responsible. The act of desertion which was done initially and which has been consistently followed by her, in no case can put premium over her conduct. 1

Effective date of modification Sub-section (3) of Section 25 of Hindu Marriage Act, 1955 empowers the Court to rescind, vary or modify an order under Section 25(1) in certain conditions mentioned in Sub-section (3) itself at the instance of the other party i.e. party other than the party to whom alimony has been granted. That being so, the order varying, modifying or rescinding the order of alimony cannot go beyond the date of the application for varying, modifying or rescinding that order because it is only when such a motion is made that the Court gets jurisdiction to very, modify or rescind that order. 2

Employed wife To grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955 or not, is a discretion of the Court. Permanent alimony can be granted only when the wife has no sufficient independent source of income. In one case both the lower Courts, considering the evidence on record and particularly, the conduct of the wife, refused to grant permanent alimony to her. It was amply proved that the husband tried his level best to bring back the wife for leading a peaceful marital life. Similarly, efforts for reconciliation were made even after a decree of restitution of conjugal rights was passed by the lower Courts, but it was found that the wife was not ready to join the society of her husband though the husband was ready to join the society of his wife. The learned Counsel for the wife stated that the wife was working as a Laboratory Assistant in the school at Paratwada and getting more than Rs.2000/- pm. On these facts it was held that the wife being an earning member, she was not entitled for the permanent alimony under Section 25 of the Hindu Marriage Act, 1955. 3

1

2 3

Umesh Chand Sharma vs. Rmeshwari Devi, II (1982) DMC 261 Raj: AIR 1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982 Hindu LR 172: 1982 Raj LR 21. Mohinder Singh vs. Manjeet Kaur, II (1983) DMC 284 Raj. S. Rashmi Pradip Kumar Jian vs. Pradeep Kumar, 1994 (2) DMC 25 Bom

24

Law of Maintenance

Entitlement only after divorce Permanent alimony and maintenance under Section 25 of the Hindu Marriage Act can only be granted if divorce is granted but not during the subsistence of the marriage. The word ‘decree’ used in matrimonial cases in a special sense different from that in which it is used in the Code of Civil Procedure. The use of the words ‘decree’ in Section 25 of the Hindu Marriage Act means the passing of the decree of divorce, restriction of conjugal rights or judicial separation and not the passing of a decree through which the petition itself is dismissed because if the petition fails then no decree is passed. In other words, in such cases decree is denied to the applicant. Obviously, alimony cannot, therefore, be granted in a case where a decree for divorce is refusal because in such a case the marriage will subsist. 1 The power to grant alimony, contained in Section 25 of the Hindu Marriage Act, has to be exercised when the Court is called upon to settle the mutual rights of the parties after the marital ties have snapped by determination or variation by the passing of the decree, or a type mentioned in Section 10, 11, and 13 of the Act, read with Section 23, 26 and 27 of the Act, a decree can be assumed to have been passed when an application for divorce or similar other relief is granted but surely not when the application is dismissed. 2

Formal application The jurisdiction under Section 25 is attracted “on application made to it (Court) for that purpose by either the wife or the husband. In the absence of an application, the Court has no jurisdiction to pass an order under Section 25. 3 Claim under Section 25 of the Act has to be made on an application furnishing all details regarding his or her own income or other property. Further an opportunity to be given to the other side to put forth his/her defence. Only on application an order has to be passed by the Court granting, “permanent alimony” and “maintenance” under Section 25 of the Act. 4 The absence of an application under Section 25 Hindu Marriage Act, 1955 gave rise to want of essential preliminaries prescribed by the 1

2 3 4

Vinod Chandra Sharma vs. Rajesh Pathak, II (1987) DMC 150 All: (1987) 1 Hindu LR 558: (1987) 1987 Mad LR 369. Vinod Chandra Sharma vs. Rajesh Pathak ibid Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP. D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB): AIR 2001 Madras 147.

Alimony—Insufficient income

25

law for clothing the court with the jurisdiction to act under Section 25. This defect of jurisdiction made the order a nullity and so nonexecutable. Although the executing Court cannot go behind the decree or order which it is required to execute, it can examine the question whether the decree or order is a nullity or not for lack of jurisdiction. 1 However another view is that the Section 25 when it speaks of an application does not specify that the same has to be in writing. An application can be in writing as also by word of mouth. The fact that the trial Court passed an order for alimony would imply that an oral application had been made to it. 2

Grant of alimony in civil suit If Section 25 of Hindu Marriage Act, 1955 conferred a right that right could be worked out even in collateral proceedings if it be correct that the declaration of nullity of such a marriage could be rendered in such proceedings. Therefore, it will have to be found that widow is entitled to rely on the principles of Section 25 of the Hindu Marriage Act and to invoke the powers of the Court for making provisions for just and fair maintenance. 3 Even apart from Section 25 of the Hindu Marriage Act, in such matter the Court possesses the inherent power to make such orders in matter of maintenance as may be necessary so as to meet the ends of justice. The principles underlying Section 151 of the Civil Procedure Code are no more in doubt. Where the need and the circumstances to do justice require, the power to act ex debito justitiae exists and can be invoked. 4

Insufficient income It most cases the standard of living of one or both of the parties will have to suffer because there will be two families to support instead of one. When this occurs, the court clearly has to decide what the priorities are to be and where the inevitable loss should fall. The wife is the financially dependent spouse. She is potentially likely to suffer greater financial loss from the dissolution or annulment of the marriage 1 2

3

4

Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP. Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR 1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495: (1989) 1 Hindu LR 708. Rajeshbai vs. Smt. Shantabai, AIR 1982 Bombay 231: (1981) 83 Bom LR 327: 1981 Bom CR 699: 1981 Mah LJ 820: 1981 Mah LR 292: 1982 Mat LR 41: 1982 Hindu LR 445. Rajeshbai vs. Smt. Shantabai ibid

26

Law of Maintenance

than the husband. But her need cannot be denied. Having regard to all the circumstances of the case the court has to award a reasonable amount. 1 The fact that the salary of Rs. 328/- is insufficient for the maintenance of the father and his two sons in not a ground which ought to be taken against wife. 2

Interim order In one case the petitioner/wife had asked for permanent alimony under Section 37 of the Divorce Act and in case she succeeds in getting the order of judicial separation under Sections 22 and 23 of the Act in her favour and against the respondent, the petitioner will be entitled to the grant of permanent alimony. Therefore, there should be left some security in the form of immoveable properties or otherwise which should be sufficient and adequate enough for the grant of permanent alimony under section 37 of the Act and that aforementioned house in Green Park can be adequate security for the payment of permanent alimony to the petitioner in case it is granted by the Court. Every Court has inherent power to grant relief during the pendency of the proceedings if the interest of justice so requires. 3

Lawyer wife In one case Husband possessed Master Degree in Social Work and also Law Degree. Wife was an Advocate. However, she had started her professional career only after dissention arose between the parties. It is stated that husband was having no employment at present. In these circumstances it was held as under: ‘Be that as it may, a wife in such circumstances is always to be protected. In our Society a husband can get easily married but our Society has not changed far to accept a divorced wife to be married again in normal circumstances. Legal Profession for the beginner is very hard. Husband has liability to maintain a wife. Husband has approached Court for divorce. Therefore, he is to pay some alimony to the wife. With gradual experience wife will have her own income from the profession if she proves successful. She may also get married if a suitable match is available. Keeping all these circumstances a monthly payment of Rs. 500/- (five hundred) would be adequate. Monthly payment by itself is continuing process and may cause difficulty to both the parties.’ 1 2 3

Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi. Sheela vs. Tungal ibid Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185 Del

Alimony—Maintenance continued as alimony

27

It was also directed that the husband shall pay alimony of a consolidated sum of Rs. 50,000/- (fifty thousand) to the wife to be paid in four quarterly instalments of Rs. 12,500/- each quarter. It was also held that in default of payment of any two instalments, the balance amount can be realised by execution and if the respondent gets married during the period of one year, further instalment payable shall not be paid. 1

Lump-sum payment In one case wife, with whom the son born out of wedlock was living, has no income or property of her own has not been disputed. It appeared from the evidence on record that she has been living in the house of her brother. The son was aged twelve and was school going. The father of child and the husband used to serve in the Government of India Press and he had already retired on attaining the age of superannuation. It was also found that he made default in payment of alimony pendente lite. So in these facts and circumstances of the case it was held that it would be reasonable that a gross sum should be awarded as permanent alimony. Thus it was held to be reasonable to grant a gross sum of Rs. 30,000/- as permanent alimony to be paid by the petitionerhusband to the respondent-wife. 2

Maintenance continued as alimony In the social reality in the Indian Society a divorced wife would be materially at a great disadvantage. The Supreme Court in Saroj Rani’s case 3 directed that even after the final decree for divorce, the appellanthusband would continue to pay maintenance to the wife. This case was also followed by Kerala High Court and the amount of maintenance at the rate of Rs. 250/- per mensem was directed to be paid as alimony until wife remarries. It was also left open to the parties to file proper application before the lower Court for variation of the order if circumstances change necessitating variation. 4 While allowing the appellant’s prayer for granting alimony pendente lite, the Court below found that she did not earn any income and did not own and property and, therefore, directed payment to her at 1

2

3 4

Mahir Narayan Mohanty vs. Sadyalaxmi Patnaik, I (1991) DMC 425 Orissa. Amarendranath Sanyal vs. Krishna Sanyal, I (1993) DMC 565 Cal: 1993(2) CCC 195 Cal (DB). Saroj Rani vs. Sudarshan Kumar Chadha, AIR 1984 SC 1562 Radhakumari vs. K.M.K. Nair, AIR 1988 Kerala 235 (DB): (1988) 1 Ker LJ 246: (1988) 1 Ker LT 461: (1988) 24 Reports 162: (1988) 2 DMC 166: (1988) 2 Hindu LR 486.

28

Law of Maintenance

the rate of Rs. 300/- per month. During the pendency of the present appeal, the appellate court had directed that the appellant petitioner will continue to receive alimony pendente lite at the same rate. Ultimately it was held that she is entitled to receive permanent alimony from the respondent husband at the same rate and in case, there is any change of circumstance, either party was granted liberty to apply to the trial Court for variation, modification or rescinding the order under Section 25 as the said Court may deem just. 1

Meaning of ‘husband’ and ‘wife’ The provisions of Section 25 of the Hindu Marriage Act which relate to permanent alimony and maintenance use the expression “either the wife or the husband as the case may be” and these expression are used at the stage when the Court is exercising jurisdiction under the Act and the occasion arises at the time of passing any decree or at any time subsequent thereto. It would, therefore, follow that the expression “husband” or “wife” used in Ss. 24 and 25 are used in a descriptive sense in order to denote a party to the marriage and not necessarily as one who in the view of the Court at the time of passing of the order is entitled to the legal character of wife or husband. It is well settled that the cases of divorce and annulment of marriage have the effect of snapping the marriage tie. If these words are literally construed, it may lead necessarily to the confinement of Section 25 to the cases of restitution of conjugal rights and judicial separation, which could not have been the intention of the Legislature. 2 Therefore the terms “Wife” and “Husband” in the section 25 of Hindu Marriage Act, 1955 are merely terms to refer to parties who have gone through a ceremony of marriage and they do not signify an existing relationship as spouses. 3

Modification of order Statutory provision of Section 25 Hindu Marriage Act is no more than a codification of the existing provisions of the Hindu Law which 1

2

3

Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983 Calcutta 161 (DB): (1982) 1 Cal LJ 318: (1982) 86 Cal WN 665: (1982) 2 DMC 59: 1982 Hindu LR 430: 1982 Mat LR 237. Hemaraj Shamrao Umredkar vs. Leela, AIR 1989 Bombay 146: (1988) 2 DMC 325: (1988) 2 Cur CC 488: (1988) 2 Hindu LR 583: (1988) Mat LR 315. Sister Kumar v. Sabita Rani, AIR 1972 Calcutta 4 and Kuldip Chand v. Geetha , AIR 1977 Delhi 125 followed in Smritikana Bag vs. Dilip Kumar Bag, I (1982) DMC 146 Calcutta: II (1982) DMC 73 DB.

Alimony—Nullity marriage

29

always conferred power upon the court to alter the amount of maintenance where circumstances have altered. The point, however, is as to the procedure to be adopted in making such alteration. Briefly speaking the law before the introduction of the said Act was that, where a decree was passed for maintenance and it contained provisions for making an application to alter the quantum of the maintenance owing to change of circumstances, then and then only an application could be made. Otherwise, the court had no jurisdiction to alter the amount of a decree by means of an application, and it was always necessary to institute a suit for that purpose. 1

Nullity marriage Marriage is both a sacrament and a contract for the Hindus. The resultant relationship is both as also contractual. The grounds mentioned in Section 5(2) of the Act as invalidating a Hindu Marriage are incapacity to enter into a contractual relationship because of the minority or unsoundness of mind or an inherent incapacity to achieve the very purpose of the marriage, namely procreation, due to lack of capacity to consummate the marriage. These are considerations which may vitiate a contract. Invalidation due to any or all these grounds in virtually an annulment of the contractual relationship. It is only just and proper that a person who induced another to enter into a contractual relationship inspite of the existence and awareness of essentially invalidating circumstances compensates that other as an incidence of the decree of annulment which he obtains. It may be that because these jural and contractual relationships are so inter wined in Hindu Marriages the former also snaps when the latter is annulled. The obligation flowing out of the jural relationship which the court disrupts by its decree seems to be sufficient justification for an order to pay maintenance subject to reasonable restrictive conditions even after the decree of annulment. 2 Section 25(1) of the Hindu Marriage Act enjoins either on the husband or the wife even after a decree under the Hindu Marriage Act is passed, to pay maintenance to the order. In the instant case, it is not in dispute that a decree for annulment of marriage was passed by this Court MFA No. 387 of 1973 on 20-2-1976. That being so, it is obvious that the erstwhile wife in the instant case could maintain an application for maintenance. The different types of decrees that are contemplated under the Hindu Marriage Act: decree for judicial separation, decree for 1

2

Menokabala Dasi vs. Panchanan Seal, AIR 1966 Cal 228 (DB): 69 Cal WN 938. Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524 Kerala.

30

Law of Maintenance

restitution of conjugal rights, decree for annulment of marriage and decree for divorce. Section states in a general way, “at the time of passing any decree or at any time subsequent thereto”. Hence is obvious that the parties to a decree for annulment of marriage also are covered under Section 25(1) of the Hindu Marriage Act. 1 Hence it was therefore held that the petition of the wife for maintenance under Section 25(1) is maintainable. 2 In a case where the husband moves for declaration of nullity of the marriage, due to his own fault, his epilepsy, his impotency, and his inability to consummate the marriage, it is all the more reason why the court shall direct him, as incidental to the dispensation whereby he obtained what he wanted, to ensure that the person against whom the court passed a decree at his instance should be maintained by him till she remarried or till the court otherwise ordered. 3 Provisions of Section 25 are ancillary to the main proceedings under the Act and must be liberally construed and the limitation upon the exercise of power are contained in the provision itself and need not be discovered outside the Act. This is clarified by the provisions contained in sub-section (3) of Section 25 of the Act, where the circumstance in which the alimony is likely to be withdrawn are specified. In my opinion, there is no scope for enlarging the circumstances when alimony may not be granted and I have no doubt that the benefit of the provision is not to be denied to the parties who have suffered the misfortune to have their marriage dissolved by the decree or the court, merely on account of the passing of the decree, if they are otherwise entitled to the maintenance and it was certainly not the intention of law that the parties to the dissolved marriage must suffer further misery or starvation without grant of alimony. Passing of the decree of annulment of marriage, therefore, does not debar the court from granting alimony to the parties, who be otherwise entitled to it. 4

1

2

3

4

Kuldip Chand v. Geetha AIR 1977 Delhi 125, Govindarao v. Anandabai 79 Bom LR 73: AIR 1976 Bombay 433 and Muniswami Rajoo v. Hamsa Rani (1974) Madras LJ 273: AIR 1975 Madras 15. Smritikana Bag vs. Dilip Kumar Bag, I (1982) DMC 146 Calcutta: II (1982) DMC 73 DB. Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524 Kerala. Kuldip Chand Sharma vs. Geeta Sharma, AIR 1977 Delhi 124: (1976) 78 Pun LR (D) 168: 1976 Rajdhani LR 419: ILR (1976) 1 Delhi 854: (1976) 12 DLT 175: 1977 Mat LR 73: 79 Pun LR (D) 229.

Alimony—Nullity marriage

31

In regard to the rights of a woman whose marriage is void or declared void under the provisions of the Hindu Marriage Act it has been held 1: ‘1. Section 25 of the Hindu Marriage Act confers upon a woman, whose marriage is void or is declared to be void, a right to maintenance against her husband. 2. The right of maintenance can be enforced by her not only in proceedings under Section 25 of Hindu Marriage Act but also in any other proceedings where the validity of her marriage is determined 3. This right can be enforced by her not only during the lifetime of her husband but also after his death against the property of her husband after his death 4. Of course, this right of maintenance is available only during her life time ceases if remarries.’ Even when marriage dissolved by a decree passed that, was a nullity, the right to claim maintenance under Section 25 of the Act is not defeated. 2 Another view to the contrary is that section 25 of the Hindu Marriage Act, 1955, permits grant of permanent alimony to either the wife or husband. Thus, to get the alimony for maintenance under Section 25 of the Hindu Marriage Act, 1955, it is necessary that the parties were husband and wife. When there is a declaration given under Section 11 of the Hindu Marriage Act, 1955, by the court that the marriage between the parties was null and void it has effect of saying that there was no marriage at all. That being so, there was no relationship between the husband and wife at any time. Under the circumstances Section 25 of the Hindu Marriage Act, 1955, has no application and the court has no jurisdiction to grant of maintenance exercising the powers under Section 25 of the Hindu Marriage Act, 1955. 3 Similarly it has been held that the declaration of nullity of marriage has the effect that the marriage does not exist. Prayer for

1

2 3

Shantaram Tukaram Patil vs. Dagubai Tukaram, 1987 (2) AIHLR 343 Devinder Singh vs. Jaspal Kaur, 1999(3) CCC 531 (P&H). Bhaiyalal vs. Phoolwati Bai, 1993(3) CCC 10 (MP).

32

Law of Maintenance

alimony after such decree is not permissible which can only be granted where marriage is dissolved by decree of divorce or judicial separation. 1 A some what middle course has been adopted in a recent case. According to this case section 25 of Hindu Marriage Act, 1955 confers a statutory right on the wife and the husband and confers jurisdiction on the Court to pass an order of maintenance and alimony in proceedings under Section 9 to 14 of the Hindu Marriage Act. At any time before or after the decree is passed in such a proceeding, therefore, the wife or husband could make such a claim and the conditions of Section 25(1) will have to be satisfied. There must be a matrimonial petition filed under the Hindu Marriage Act, then, on such a petition, a decree must be passed by the Court concerning the material status of the wife or husband. It is only when such a decree is passed that the right accrues to the wife or the husband and confers jurisdiction on the Court to grant alimony. Till then, such a right does not take place. Not only that the Court retains the jurisdiction even subsequent to passing of such a decree to grant permanent alimony when moved by an application in that behalf by a party entitled to, the Court further retains the power to change or alter the order in view of the changed circumstances. Thus, the whole exercise is within the gamut of a broken marriage. Thus, the Legislature while codifying the Hindu Marriage Act, reserved the right of permanent maintenance in favour of the husband or the wife as the case may be depending on the Court passing of the kind as envisaged under Section 14 of the Act. Thus, Section 25 should not be construed in such a manner as to hold that notwithstanding the nullity of the marriage, the wife retains her status for purposes of applying for alimony and maintenance. In our view, the proper construction of Section 25 would be that where a marriage admittedly is a nullity, this section will have no application. But, where the question of nullity is in issue and in contentious, the Court has to proceed on the assumption until the contrary is proved, that the applicant is the wife. 2

Offer of re-union The wife could show that although she did not comply with the decree for restitution of conjugal rights she could provide some cause to live away from the husband by supporting the same by evidence. But she did not raise any plea whatsoever as to why she is willing to live away from her husband. In execution proceedings her stand was that she had danger to her life. In those proceedings, she led no evidence on that 1

2

Lydia Renuka vs. K. Soloman Raju, 1995 (2) DMC 619 AP: 1996(1) CCC 311 (AP). Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP.

Alimony—Pregnant wife

33

aspect of the matter and if on perusal of that evidence it could be concluded that there was really some apprehension to her from the side of the husband of her-in-law, probably, she would have had a good case but when no evidence having been brought on record, the fact remains that as a wife, she wants to live away whereas the dicta of law is that she must go with her husband. In such case of divorce the tie of marriage ceases to exist between the parties and after divorce, the former husband cannot say that he is prepared to keep his former wife in his house and will provide her all necessities of life. After divorce she has to live away and for that she becomes entitled to maintenance in law except in few cases like re-marriage, on becoming unchaste or for certain allied matters. But in the present case the tie of husband and wife still continues in spite of grant of decree for restitution of conjugal rights and for that reason the husband is very much right is saying that she should come and live with him so that he can provide her with all necessities of life. If in spite of being wife she does not want come and live with the husband, she is not entitled to claim permanent alimony. 1

Powers of Appellate Court Court in an appeal in granting the decree for restitution of conjugal rights has exercised jurisdiction under the Hindu Marriage Act within the meaning of Section 25 thereof, then the other relevant provisions of Section 25 would leave no room for doubt that the appellate Court can entertain the application under that Section for the grant for permanent alimony. The Section having clearly authorised the Court to order payment of alimony “at the time of passing any decree” and “on an application made to it”, unmistakably indicates that it is the Court, original or appellate, which has granted the decree, that would be entitled to order grant of alimony under Section 25 of Hindu Marriage Act, 1955. 2 It is also clear from Section 107 of the Code of Civil Procedure as well as the language used in Section 25 of the Hindu Marriage Act, 1955, the Appellate Court, has same powers as are conferred on the original Court. 3

Pregnant wife In case, the marriage has been dissolved under Section 13(1) (ia) of the Hindu Marriage Act, 1955 on the ground that the wife was living 1 2 3

Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H. Smyamali Sarkar vs. Ashim Kumar Sarkar, I (1989) DMC 40 Cal. D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB): AIR 2001 Mad 147 DB.

34

Law of Maintenance

in adultery or was leading an immoral life, her application for permanent alimony may be dismissed on the ground that even after the decree of divorce she continues to lead such a life. Where, however, the evidence is, like in the present case, that she had conceived during the period of desertion and delivered a child, her application for permanent alimony cannot be thrown out on that ground alone. It is well settled that illicit conception by itself is not “living in adultery”. It would, however, be open to a husband whose marriage has been dissolved on the ground that wife has deserted him to prove while contesting that application that the wife lives in adultery. 1

Procedure Under Section 36 of Divorce Act, wife alone has the right to file an application. Principle of natural justice has been reflected in the section itself which requires the copy of the application to be served on the husband. Trial Court is required to consider the truth of the statements made in the application and thereafter, on its findings shall make such order on the husband as it may deem just for payment of alimony to the wife, pending disposal of the suit. In the proviso clear restriction has been made that such pendente lite alimony shall not exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order. Thus, the Court considering such application is to determine the net income for three years and on the facts and circumstances of each case shall determine the quantum of alimony which shall not exceed one-fifth of the average thereof. 2

Quantum In order to grant permanent alimony to a divorced wife, the factors such as status of the parties, their sources of income, and properties, if any, held by them, their employment etc., are to be taken into consideration. 3 Taking all these factors into consideration, it was held that instead of directing the respondent to pay monthly to pay monthly maintenance to the appellant, the respondent could be directed to pay a lump sum amount towards permanent alimony to the appellant which could be just and reasonable for her maintenance. The facts of this case were that the wife was practising as qualified Post-graduate doctor in 1

2

3

Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5: 1982 Rajdhani LR 622. Jayanti Menjet vs. Asit Kumar Mohanty, AIR 1988 Orissa 195: (1988) 1 Orissa LR 277: (1988) 1 Cur CC 702: 1988 Mat LR 301 Lokeshwari vs. Srinivasa Rao, II (2000) DMC 351 AP.

Alimony—Quantum

35

Gynaecology and as such she was capable of earning substantial income through her profession. Whereas the respondent who was also a doctor by profession settled down in London, had to maintain his first daughter born through the appellant, his second wife and a son born through his second wife. In these circumstances it was held that, an amount of Rs. 5.00 lakhs (five lakhs only) could be awarded as permanent alimony to the appellant. While determining the above amount of permanent alimony, the amount of Rs. 3,31,500/- already paid by the respondent to the appellant during the pendency of these appeals was also taken into consideration and it was directed that the respondent to pay an amount of Rs. 5.00 lakhs to the appellant through Demand Draft drawn in her favour within a period of three months from the date of the order in addition to said amount already paid. It was also held that pending payment of the permanent alimony of Rs. 5.00 lakhs by the respondent, the respondent shall pay the maintenance at the rate of Rs. 5,000/- to the appellant per month which shall be paid on or before 5 th of every months from the month of January, 2000 onwards. The respondent husband was also directed to pay an amount of Rs. 5,000/- to the appellant towards her legal expenses which shall also be paid by him within a period of three months from to-day, apart from the above amounts. 1 Where the last drawn gross salary of the husband prior to his suspension was Rs. 6,780/- per month and he was aged 45 years and the wife was aged about 37 years, it was held that though the wife had claimed an amount of Rs. 3,00,000/- as permanent alimony, the husband could only be directed to pay an amount of Rs. 1,50,000/- towards permanent alimony to the wife. 2 One case had a special feature of its own inasmuch the alimony pendente lite was not for the wife alone but also for the young male child who had just started going to school. Even though 1/5 th is the rule ordinarily laid down for one head the is that wife who is living separate from the husband, if we calculate for two heads we cannot fix 1/5 th to be the ultimate ceiling. The legislature in its discretion has not fixed any guideline in this regard as in the case of Indian Divorce Act or the Paris Marriage and Divorce Act and here court is always to be guided by the wide discretion vested by the statute on the Court itself. Therefore the alimony pendente lite was increased to a sum of Rs. 1,200/- per month, Rs. 700/- for the wife and Rs. 500/- for the minor child which would be effective from the date of the application in the Court below. 3 1 2 3

Lokeshwari vs. Srinivasa Rao ibid S. Vijayalakshmi vs. Bheem Reddy, 1998(2) CCC 399 (AP). Rina Sen vs. Aloke Kumar Sen, II (1994) DMC 525 Calcutta.

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Law of Maintenance

Where the parties had agreed that a total consideration of Rs. 1,80,000/- would be paid to the minor daughter and the wife in settlement of all their claims with regard to maintenance, permanent alimony and Istridhan as well as in relation to the property, if any, owned and possessed by the husband and his family members. Out of this amount of Rs. 1,80,000/-, Rs. 50,000/- had been paid in cash and for the remaining amount of Rs. 1,30,000/- a post dated cheque was handed over and the husband had given an undertaking to the Court, which had been accepted by the wife, that the cheque would be positively honoured on presentation. It was held that all the cases filed by the parties against each other would be dismissed as withdrawn and/or pursued. 1 While allowing the appellant’s prayer for granting alimony pendente lite, the Court below found that she did not earn any income and did not own and property and, therefore, directed payment to her at the rate of Rs. 300/- per month. During the pendency of the present appeal, the appellate court had directed that the appellant petitioner will continue to receive alimony pendente lite at the same rate. Ultimately it was held that she is entitled to receive permanent alimony from the respondent husband at the same rate and in case, there is any change of circumstance, either party was granted liberty to apply to the trial Court for variation, modification or rescinding the order under Section 25 as the said Court may deem just. Therefore the order under Section 25 shall be deemed to have been made by the trial Court. 2

Remarriage The language of the section 25 of Hindu Marriage Act, 1955 is clumsy, though the clear intendment of the section is that any court exercising jurisdiction under the Hindu Marriage Act shall have the power to award maintenance in any proceeding, be it one for judicial separation or for restitution of conjugal rights or for dissolution of marriage by divorce or for annulment of marriage by a decree of nullity. This view is fortified both by the heading of the section and the language of the principal clause in the section. The heading in Section 25 runs as follows: ‘Permanent alimony and maintenance’. The heading suggests that it applies to all cases coming under the Hindu Marriage Act and not

1 2

Balwinder Singh vs. Raj Rani, I (2001) DMC 427 P&H. Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983 Calcutta 161 (DB): (1982) 1 Cal LJ 318: (1982) 86 Cal WN 665: (1982) 2 DMC 59: 1982 Hindu LR 430: 1982 Mat LR 237.

Alimony—Right after passing of decree

37

necessarily and exclusively to cases where the marital tie has been dissolved by an order of court. 1 In fact, the main clause in the section — ‘any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto ………………shall………….pay to the applicant for her or his maintenance’ etc. — indicates the Legislature intent to confer upon any court exercising jurisdiction under the Hindu Marriage Act, the power to award maintenance in any proceeding under the Act. But unfortunately, later on, in a subordinate clause, the Legislature uses the words “while the applicant remains unmarried”. This expression is not intended to cut down or curtail the scope of Section 25. Nor can it be construed as applying only to a case of a dissolution of marriage or an annulment of marriage. 2 It, is therefore, wrong to whittle down the scope of Section 25 of Hindu Marriage Act, 1955 by invoking the clumsy phrase ‘while the applicant remains unmarried’, a phrase, which has been inadvertently used by an unimaginative draftsman. The phrase ‘while the applicant remains unmarried’ was evidently intended to do duty for the expression ‘while the applicant remains without incurring any legal disability justifying the rescission of the allowance awarded under the decree’. It is the duty of the court to put a construction upon the section, which does not attribute absurdity to the legislature and which would advance the remedy and suppress the mischief. 3

Resumption of cohabitation The principle is whether there has been resumption of cohabitation so as to demolish the effect of the decree. Whether there has been resumption of the cohabitation or not does not depend upon the duration of the stay. It rather depends on the animus of the parties and their mental attitude in coming to gather again. When cohabitation is resumed, there is a waiver on the part of the wife of the cause of action on which the suit and the decree were founded. Whatever might be the ground on which the decree has been obtained, the same result follows, if subsequent to the decree there is a resumption of cohabitation. 4

1

2 3 4

A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87 Mad LW 537: (1974) 2 Mad LJ 237. A.R. Munuswamy Rajoo vs. Hamsa Rani ibid A.R. Munuswamy Rajoo vs. Hamsa Rani ibid. Bussa Ansuya vs. Bussa Rajaiah, AIR 1971 AP 296: (1971) 1 Andh WR 191.

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Law of Maintenance

Right after passing of decree When the language of sub-section (3) of Section 25 is taken along with the provisions of sub-section (1) of the same section, there can be no manner of argument that in Section 25 the statute has used the description of the parties as husband or wife to proceedings under the Act not only confined to a stage before or by the time of passing of a decree under the Act, but for the purposes of the grant of permanent alimony even after that. When there is an order granting permanent alimony to one of the spouse under sub-section (1), for his or her conduct referred to in sub-section (3) as husband or wife, as the case may be, the order can be rescinded. So that the description of the parties for the matter of Section 25 continues to be exactly the same as it was in the proceeding originally initiated under the provisions of the Act for any decree under those provisions. The fact that proceedings for the grant of permanent alimony are incidental to the main proceedings, merely lends support to this approach, which is even otherwise made clear, beyond the pail of controversy or argument, by sub-section (3) of Section 25 of the Act. 1

Stage of granting alimony Section 25 of the Hindu Marriage Act, 1955, empowers the Court to pass a decree for permanent alimony, while passing decree for divorce. The section, in turn requires an application to be made for this purpose. The application can be made either at the time of passing the decree of even thereafter. The decision on the question of alimony will have to take into consideration the earning of the husband, conduct of the parties and other facts and circumstances of the case. This cannot be done, unless both the parties are given opportunity to place material facts before the Court. Inspite of eagerness and willingness of the appellate court to grant some amount to the wife, as permanent alimony, it is not possible to fix the same in the absence of any material on record. But liberty was granted the appellant to file an application before the trial Court under Section 25 of the Act; and get an order for permanent alimony as provided in law. 2 Section 25 of the Hindu Marriage Act, 1955 very clearly states that any Court exercising jurisdiction under the Act, may at the time of passing any decree or at the time subsequent thereto, order that the husband shall pay to the wife maintenance. This clearly shows that an application u/s 25(1) of the Act can be made and decided at the time of 1

2

Durga Das vs. Tara Rani, AIR 1971 P&H 141 (FB): 70 Pun LR 923: ILR (1970) 2 Punj 551. Meerabai vs. Laxminarayan Mishra, I (1984) DMC 120 MP.

Alimony—Territorial Jurisdiction

39

passing of decree or at any time subsequent thereto. There is nothing in the aforesaid decision which takes away the right of wife to permanent alimony or maintenance to apply for it subsequent to passing of the decree. Therefore, a decree of divorce is not vitiated for nonconsideration of grant of permanent alimony. 1

Subsisting marriage Permanent alimony and maintenance under Section 25 of Hindu Marriage Act, 1955, can only by granted in case divorce is granted and not if the marriage subsists. The word ‘decree’ is used in matrimonial cases in a special sense different from that in which it is used in Civil Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means the passing of the decree of divorce, restitution of conjugal rights, or judicial separation and not the passing of a decree dismissing the petition. If the petition fails then no decree is passed, i.e., the decree is denied to the applicant. Alimony, cannot therefore, be granted in a case where a decree for divorce or other decree is refused because in such a case the marriage subsists. 2

Territorial Jurisdiction Referring to the phraseology of Section 25, stress was laid on the words “on application made to it for the purpose”. From these words it was sought to be inferred that ‘it’ is the Court, which passed the decree, and that court alone is entitled to entertain such application. It was held that ‘if this interpretation were to be placed on these words, it will lead to anomalous results as would be clear from the following example. Suppose, a divorce petition is dismissed by the first Court and the dismissal is confirmed by the High Court and the matter goes to the Supreme Court and the Supreme Court grants a decree of divorce. The interpretation sought to be placed on Section 25 of the Act and on the word ‘it’, would mean that a petition for grant of permanent alimony under Section 25 of the Act will have to be filed before the Supreme Court. Similarly, if the divorce petition was declined by the first Court, but was granted by this Court, the application for the grant of permanent alimony will lie to this Court. This is not the scope of either Section 25 or conveyed by Section 19 of the Act. Moreover, the opening part of Section 25 shows that the proceedings may be taken before ‘any’ Court exercising jurisdiction under this Act and the jurisdiction under this Act is exercised in view of Section 19 of the Act on matters arising under the

1

2

Ramadevi vs. Ashok Kumar Mohanlal Vyas, 1994 (1) DMC 286 (DB) MP. Ranganatham vs. Shyamala, AIR 1990 Mad 1.

40

Law of Maintenance

Act. Therefore, the reasonable interpretation to be placed, would be that Section 25 or for the matter any other section, should be read subject to Section 19 so far as the jurisdiction of the Court is concerned unless there is a specific provision to the contrary in any particular section. Therefore, on a plain reading of Section 19 and reading it harmoniously with Section 25 of the Act, the only conclusion to be drawn would be that even if a petition for divorce, or any other decree, is granted by one of the Courts having jurisdiction under Section 19 of the Act, it may give cause to the opposite party to move for the grant of permanent alimony or any other relief under Section 26 or 27 of the Act, again the jurisdiction will be governed by Section 19 of the Act and not merely by the passing of a decree by a particular Court.’ 1

Withdrawal of petition In a proceeding filed under the Act for divorce judicial separation or restitution of conjugal rights, the respondent in addition to opposing the claim made by the petitioners is entitled to make a counter claim for any relief under the Act on the ground of petitioner’s adultery, cruelty or desertion. Now the relief claimed by the respondent wife is permanent alimony for herself and for the minor child. This claim falls under Section 25 of the Act. Section 23-A of the Act, clearly provides that in a proceeding for divorce, judicial separation or restitution of conjugal rights, the respondent can make a counter claim for any relief under the Act on the ground of the petitioner’s adultery, cruelty or desertion. The contention raised in the application is that the petitioner husband has treated her with cruelty. Therefore the claim satisfies the requirements of Section 23-A of the Act. That being so, when there is a counter claim and that counter claim falls within the scope of Section 23-A read with Section 25 of the Act, in such a situation, if the petitioner is allowed to withdraw the main petition it will seriously affect the counter claim made by the respondent because the counter-claim can be entertained only when there is a proceeding for divorce or judicial separation or restitution of conjugal rights. 2

Written Application Section 25 of the Act contemplates an application for the said purpose. When the lower Court has not disposed of Section 24 application in time and has disposed of along with the main application, it should have disposed of the application under Section 25 also. 1 2

Darshan Kaur vs. Malook Singh, II (1983) DMC 302 P&H. C. Sannath vs. Padma, II (1982) DMC 121 Karnataka.

Alimony—Young wife

41

Therefore, one more litigation could be avoided and on the basis of very same order, the maintenance could be provided for the wife and child. From the conduct of the respondent, it is clear that he will not pay the maintenance which is legally due to the petitioner. Under these circumstances, asking the petitioner to file another application under Section 25 or asking to file a separate suit and again seeking indulgence of the Court below will be harsh. The Act does not say that there should be a written application. It only says that an application made to it. It can also be on the basis of oral application. 1 Section 25 of Hindu Marriage Act, 1955 when it speaks of an application does not specify that the same has to be in writing. An application can be in writing as also by word of mouth. The fact that the trial Court passed an order for alimony would imply that an oral application had been made to it. 2 Section 25 of the Hindu Marriage Act, 1955 gives inherent jurisdiction to the Court to grant permanent alimony to either spouse, at the time of passing any decree or at any time subsequent thereto, directing the respondent to pay to the applicant for her maintenance such amount as may appear to the Court to be just. Therefore even when no written application has been filed on behalf of the appellant for seeking an order of permanent alimony, yet the court can pass an order in respect thereof on the oral application of the appellant’s learned counsel. 3

Young wife If the wife is young it does not mean that she should not be awarded permanent alimony. Only on remarriage she will forfeit her right. It is general principle of the matrimonial legislation that, if a former spouse remarries, she (or he) must look to her new partner for financial provision for herself, and not to the old one. The court cannot suggest to the wife that she should remarry and that she will not be awarded maintenance because she is very young. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. 4 The primary consideration under Section 25 of Hindu Marriage Act, 1955 is to see whether the wife has anything for her support and 1 2

3 4

Umarani vs. D. Vivekannandan, II (2000) DMC 422 Madras. Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR 1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495: (1989) 1 Hindu LR 708. Indu Kumari Pathak vs. S.K. Pathak, II (1983) DMC 64 Raj. Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi.

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Law of Maintenance

maintenance. If not, she is entitled to a lump sum or a periodical payment. The consideration which the Court will keep in view are specified in the section. The court has to have regard to the respondent’s income and property, the income and property of the applicant, the conduct of the parties and other circumstances of the case. The sum to be rewarded to the applicant must be fair and reasonable. It has to be just in all the circumstances of the case having regard to the income of the parties, their means etc. 1

1

Sheela vs. Tungal Singh ibid.

Maintenance pendente lite—Young wife

43

Chapter 2

Maintenance pendente lite SYNOPSIS Introduction......................................44 Object ...............................................46 Allegation of adultery ......................49 Alternative forums............................50 Appeal ..............................................51 Appeal under Family Court Act .......51 Award to children ............................52 Burden of proof ................................53 Challenge in Appeal.........................54 Challenge in revision .......................56 Civil Procedure Code is applicable .56 Comparison between Hindu Adoptions & Maintenance Act & Hindu Marriage Act, 1955 ..........................................57 Compliance of order ........................57 Computation.....................................58 Conclusion of proceedings ...............59 Conditions for granting maintenance .....................................60 Conduct of parties ............................61 Consent order...................................62 Considerations for granting maintenance .....................................62 Date from which amount granted ....65 Delay in disposal..............................68 Denial of marriage...........................69 Determination of amount .................70 Discretion of Court ..........................71 Dismissal of main petition ...............73 Disputed marriage ...........................76 Distinction with alimony ..................77 Distinction with Section 125 Criminal Procedure Code ...............................78 Duration of payment ........................78

Duty of husband............................... 80 Effect of interim maintenance.......... 81 Effect of non payment on appeal ..... 81 Effect of operation of Hindu Adoptions & Maintenance Act .......................... 82 Enforcement of order....................... 82 Enhancement of amount of maintenance..................................... 84 Entitlement of children .................... 84 Filing of written statement............... 85 Form of order .................................. 86 Forum of appeal .............................. 86 Grant in Revision............................. 87 Independent income of wife ............. 87 Jurisdiction of Family Court ........... 88 Jurisdictional issue .......................... 89 Justification for living separately .... 89 Letters patent appeal ....................... 89 Litigation Expenses ......................... 90 Meaning of “Maintenance” ............ 90 Meaning of support ......................... 90 Modification of order ...................... 90 Multiple remedies ............................ 91 Necessity of affidavit ....................... 92 Necessity of reconciliation .............. 92 Necessity to grant maintenance ....... 93 Non working husband ...................... 93 Non-compliance............................... 93 Object of Hindu Adoptions & Maintenance Act .............................. 94 Order under Criminal Procedure Code, 1973 ................................................. 94 Pendency of proceedings ................. 94 Postponement of Application ........... 96

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Law of Maintenance

Power of Appellate Court ................97 Power of Court...............................100 Procedure for disposal of application .......................................................101 Proceeding for restitution of conjugal rights ..............................................102 Procedure of enquiry .....................102 Proof of marriage ..........................103 Quantum of interim maintenance...104 Quick disposal................................108 Reasonable amount ........................108 Reduction and enhancement of amount .......................................................108 Refusal of maintenance to pressurise .......................................................109 Resjudicata.....................................109 Retrospective effect ........................109 Right of Children............................109

Scheme under Hindu Marriage Act, 1955........................................ 112 Scope of enquiry ............................ 115 Scope of entitlement....................... 116 Scope of expenses .......................... 117 Scope of Liability ........................... 117 Second Appeal ............................... 118 Second marriage............................ 118 Striking off defence ........................ 119 Enforcement of order..................... 120 Unchastity...................................... 120 Urgency ......................................... 121 Waiver ........................................... 121 Withdrawal of application ............. 122 Withdrawal of main petition .......... 122 Working wife.................................. 123 Written statement ........................... 124

Introduction There are various provisions of different statutes dealing with personal laws which deal with the question of maintenance pendente lite. These statutes are Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act, 1936 and Indian Divorce Act. The relevant provisions of these statutes are extracted hereafter. Section 24 of Hindu Marriage Act, 1955 is as under: Maintenance pendente lite and expenses of proceedings.— Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable. Section 39 of Parsi Marriage & Divorce Act, 1936 is as under: Alimony pendente lite.— Where in any suit under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of the wife or the husband, order the defendant to pay

Maintenance pendente lite—Introduction

45

to the plaintiff, the expenses of the suit, and such weekly or monthly sum, during the suit, as, having regard to the plaintiffs own income and the income of the defendant, it may seem to the court to be reasonable. Section 36 of Indian Divorce Act, 1869 is as under: Alimony pendente lite.— In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present for alimony pending the suit. Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just: Provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be. Section 36 of Special Marriage Act, 1954 is as under: Alimony pendente lite.— Where in any proceeding under Chapter V or Chapter VI it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly, or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the Court to be reasonable. The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore, the husband is bound to defray the wife’s costs of any proceeding under the Act and to provide for her maintenance and support pending the disposal of such proceeding. The doctrine of alimony, which expression in this strict sense means allowance due to wife from husband or separation from certain causes, he its basis in social conditions in England under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her while prosecuting or defending proceedings under matrimonial law. In view of Section 24 of the Hindu Marriage Act and the decision rendered above that the law relating to matrimonial causes provides for rules for payment of maintenance pendente lite and express of proceeding by the husband to the wife. Section 24 of the Hindu Marriage Maintenance Act

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Law of Maintenance

adopts those principles and goes radical step further when it prescribes that any such order can be made not only in favour of the wife but also in favour of the husband. 1 The right of a wife is general for maintenance is an incidences of the status of matrimony. The husband in general is under an obligation to defray the wife’s cost to any proceedings and to provide her with maintenance and support during the pending legal proceedings under Hindu Marriage Act. Alimony strictly speaking is a maintenance allowance given to a wife by husband on separation. It is well recognised in civilised society that a wife having no independent means of subsistence and maintenance is entitled to alimony pending matrimonial proceedings and costs thereof. It is this principle which has been incorporated in Section 24 of the Hindu Marriage Act. As a matter of fact the section goes beyond the classical concept of the doctrine of alimony inasmuch as it recognises the right even of a husband who has no sufficient means for his support to claim alimony pending the proceedings from a wife having means. 2

Object The object of this Section is that neither party may suffer by her or his inability to conduct the proceedings for want of money for expenses. The real object of the maintenance is to support the party without means during pendency of proceedings. 3 Very purpose of grant of interim alimony the amount of costs under Section 24 of the Act is to see that the party who is helpless and unable to maintain oneself during pendency of the proceedings and who has no sufficient means for fighting the litigation, is, awarded interim alimony. Thus this provisions of Section 24 of the Act go to show the objection is to see that the litigation initiated by the other side could properly be defended and interim maintenance could be given it’s the applicant. Having once found by the trial court that the party is entitled to such fund of alimony and not paid by the party against whom the order is passed, has no other remedy for recovery of such amount or other remedy and if the proceedings are not stayed as requested by the party in whose favour the order is passed and which is not complied by other party, the very object of Section 24 may be frustrated. The object of Section 24 is no provide necessary funds to the needy spouse to 1

2 3

Jyotiben Samir Pawar vs. Samir Bhaskarrao Pawar, II (2001) DMC 84 Gujarat: AIR 2001 Gujarat 165. Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174. Jagmohan Verma vs. Sunita Verma, I (1983) DMC 176 Delhi.

Maintenance pendente lite—Object

47

prosecute the proceedings as well as to maintain himself or herself during pendency of the proceedings. The application preferred by the wife to stay the proceedings initiated by the husband, for non-compliance of the order of the court, is rejected without proper examination and appreciation of the facts and Section 24 by trial court is passing the impugned order. There fore, impugned order has resulted into miscarriage of justice. 1 The amount made out under section 24 of the Hindu Marriage Act is reasonable amount to meet the expenses to the Court proceedings and also of the maintenance regarding food, lodging, travelling expenses and other necessary expenses during the period of litigation. This is not mere maintenance allowance as is to be paid under any provision of the Hindu Adoptions & Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure. Under Section 24 of the Hindu Marriage Act the allowance which is to be allowed must be reasonable besides the maintenance, also to meet expenses of the Court proceedings. Therefore, in these circumstances, this has no relation to the mere maintenance of the child or the lady. 2 An order under Section 24, Hindu Marriage Act for maintenance pendente lite and expense of the proceeding in a matrimonial proceeding is obviously passed to provide the weaker spouse with such fund as may be reasonably necessary for her or his support and for the carriage of the litigation and such an order automatically comes to an end with the termination of the main proceeding in the Court which passed the order. The proceeding being rather summary in nature, the object of the order. The proceeding being rather summary in nature, the object of the order being ad hoc and duration of the order being temporary the approach of the Court to an order should be ut res magis valeat guam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law. 3 Whatever previously might have been the right of the wife to claim maintenance as an incident of the status of matrimony on the establishment of the relationship of wife and husband, now, under Section 18 (1) of the Hindu Adoptions & Maintenance Act, which came into operation on 21.12.1956, a Hindu wife, whether married before or after the commencement of that Act, shall be entitled to be maintained by 1 2

3

Shivilaben vs. Prahladbhai, 1995(3) CCC 466 Gujarat. Sangeeta Sexena vs. Gyanendra Saxena, II (1995) DMC 78 MP: 1996(3) CCC 178 (MP). Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC 276 Calcutta.

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Law of Maintenance

her husband during her lifetime. Section 18 (2) of that Act enumerates the circumstances, under which, a Hindu wife is entitled to live separately from her husband, without forfeiting her claim to maintenance. Thus, the right of the wife to claim maintenance from the husband, even in those cases falling under Section 18 (2) of the Hindu Adoptions and Maintenance Act, when she is obliged to live separately from her husband, is a statutory one. The method and manner of enforcing this right, would necessarily depend upon the circumstances obtaining in any particular case. It may be that in a given case, the wife may resort to proceedings under Section 125. Cr.P.C. in the hope and with the expectation that she would get quicker and speedier relief in those proceedings. Equally, it may well be that a wife may resort to proceedings before a Civil Court for the enforcement of such right. Those, however, may at best be characterized as the adoption of different methods for the enforcement of the right to maintenance. It is necessary in this connection to remember that the right conferred under Section 24 of Hindu Marriage Act, is in the nature of a special right, arising on initiation and during the pendency of the proceedings by one or the other of the parties to the marriage, under the provisions of that Act. Under Section 24 of the Hindu Marriage Act, the pendency of proceedings under that Act, is an essential condition for the exercise of the right either by the wife or the husband, as the case may be seek an order for payment of the expenses of the proceeding and a monthly sum sufficient for his or her support. It is thus clear that the right to claim maintenance or litigation expenses under Section 24 of Hindu Marriage Act, is not made available generally to the parties to a marriage, but only when a proceeding between the spouses is pending under that Act, and in that respect, the right conferred under Section 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions Section 24 of Hindu Marriage Act. The purpose behind Section 24 of Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under Section 24 of that Act and its purpose and borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either under Section 125, Cr.P.C. or under the ordinary law. 1 1

Vanaja vs. Gopu, I (1992) DMC 347 Mad.

Maintenance pendente lite—Allegation of adultery

49

Section 24, Hindu Marriage Act deals with maintenance pending in proceedings under this Act and expenses as such proceeding. This section enables the court on the application of either spouse to order that the expenses of the proceeding be paid to the applicant and likewise a monthly sum during the proceeding, having regard to the applicant’s own income and the income of the respondent. The object is to ensure that a party to a proceeding does not suffer during the pendency of the proceedings by reason of poverty and such party may be either the petitioner or the respondent in the petition in which the application is made. The grant of maintenance pendente lite and expenses under Section 24 is discretionary with the court though such discretion has to be judicially exercised. The guiding principle would appear to be that if the applicant has no independent means he or she is entitled to maintenance and expenses, unless good cause to shown to deprive the applicant of it. The order exhausts itself with the conclusion of the main proceedings including the appeal filed if any. 1

Allegation of adultery There is nothing in Section 24 to prevent a Court from taking into consideration the conduct of the parties. But that is too spacious a contention since at least in the original proceedings if this point is conceded, it would require the Court to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and if such an exercise is permitted the Court’s discretion would be fettered merely by the nature of the allegations made in the petition and would be compelled to examine the merits of the same at least prima facie. 2 Simply because a suit for divorce is filed on the allegations of adultery the wife will not be deprived off her right to get maintenance pendente lite and expenses of proceeding to defend herself. It is true that it suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance under Section 25 of the Hindu Marriage Act because adultery alleged against her is proved. But at the stage of the proceeding under Section 24 of the Hindu Marriage Act, 1955 adultery is only alleged. There is large 1

2

Shrichand vs. IV Additional Dist Judge, Allahabad, Santosh Kumari, I (1986) DMC 91 All: Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387: Ivan vs. Zena Eramus, I (1982) DMC 295 All: AIR 1982 All 194: 1982 All WC 163: 1982 (8) All LR 142: 1982 All CJ 193: 1982 Mat LR 174. Dwarkadas Gurumukhdas Agrawal vs. Bhanuben, I (1987) DMC 46 Gujarat.

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Law of Maintenance

gap between “adultery alleged” at the stage of proceeding under Section 24 of the aforesaid Act and “adultery found to be proved by Court trial” at the stage of proceeding under Section 25 of the said. Act. 1 The opening words of Section 24 invests a spouse lacking sufficient means for his or her support to claim maintenance pendente lite and the costs and expenses of the proceedings under the Act which includes, inter alia, for divorce or nullity of void or voidable marriage. On the plain regarding of Section 24, alimony is a concomitant of a marriage in fact. On an admission or proof of a factum of marriage, alimony is a right of either of the spouses lacking means of his or her support. It would be no answer to such claim that the marriage is void or voidable. It would be imprudent on the part of the Court to ignore the principle that a de facto marriage necessarily carries a right carries a right to alimony pendente lite for an incapacitated spouse and the ultimate outcome of substantive proceedings cannot have a back-fire so as to negative such a right. If the allegation, or for that matter the conduct of the party claiming maintenance or expenses pending the proceedings is allowed to have such an over-bearing effect so as to negative such a claim it would be tantamount to prejudging the issues which is to be tried in the substantive proceedings. 2 If the conduct of a spouse claiming such a right is to be considered so relevant in the original proceedings as to negative the right which the law has invested in a spouse lacking the capacity for his or her maintenance, the Legislature would have certainly provided to that effect as it has done in Section 25 of the Hindu Marriage Act. It can be urged with force that the conduct of a spouse claiming such a right is entirely irrelevant since otherwise the Legislature would have made an appropriate provision in Section 24 as it has done in Section 24. 3

Alternative forums The application filed under Section 24 of the Hindu Marriage Act cannot be rejected merely on the ground that an application earlier filed under Section 125 Criminal Procedure Code for maintenance was rejected. When the proceedings under Section 9 of the Hindu Marriage Act are pending in trial Court, the wife, under Section 24 of the above Act, is entitled to file an application for grant of maintenance of pendente lite. 4

1 2 3 4

Vinod Kumar vs. Kaushalya, I (1996) DMC 603 Raj. Gangu . Pundlik, AIR 1979 Bombay 264. Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174. Virender Kumar vs. Santosh Devi, I (1988) DMC 485 Raj.

Maintenance pendente lite—Appeal under Family Court Act

51

The cause of action for awarding maintenance in the original suit filed by the wife is altogether different from the right accrued to her to claim maintenance pending the proceeding instituted by the husband for restitution of conjugal rights. Her right to seek for interim maintenance and for costs of the proceeding arises under Section 24 of the Act, the provisions of which are altogether different from those of Section 18 of the Hindu Adoptions & Maintenance Act. There is nothing in the Hindu Marriage Act or in the Hindu Adoptions & Maintenance Act which bars the wife from claiming maintenance under Section 24 of the former Act, if she had preferred a suit for regular maintenance under the latter enactment. Where two different statutes provide specifically for two different claims if the conditions specified therein are satisfied, either of them cannot be denied to the claimant simply on the ground that two relief have been claimed at one and the same time. The intendment and object of granting maintenance under Section 18 of the Hindu Adoptions & Maintenance Act is different from that of awarding interim maintenance under Section 24 of the Act. The maintenance that can be granted under Section 24 of the Act is for the period during which the proceeding is pending before the Court. That apart, the right to claim expenses of the proceeding under Section 24 is an independent right given to the party. The very object and purpose of Section 24 appears to be to provide immediate relief for the respondent under the Act, to claim maintenance and expenses of the proceeding irrespective of other circumstances, as the regular maintenance suit may take considerable time for adjudication. 1

Appeal An appeal will lie, against an interlocutory order if it is a judgement. Clearly the order passed under Section 24 of the Hindu Marriage Act is a judgment as it decides the question of maintenance during the pendency of the suit and therefore, there is final adjudication so far this question is concerned and an appeal lies against such an order. 2

Appeal under Family Court Act A conjoint reading of sub-section (1) and sub-section (5) of Section 19 of Family Court Act makes crystal clear that only one appeal lies to the High Court; that no appeal or revision lies except as provided under sub-section (1) from any judgment, order or decree of a Family

1

2

Adigarla Simhachalam vs. Adigarla Papamma, AIR 1973 AP 31 (DB): (1972) 1 Andh LT 242: (1972) 2 Andh Pra LJ 216. Raghvendra Singh Choudhary vs. Seema Bai, I (1989) DMC 89 MP.

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Law of Maintenance

Court; and further that no appeal lies against such judgment or order which is interlocutory. It cannot be said that the Legislature has created an appellate from in 1984 against the orders passed under Section 24 of the Hindu Marriage Act nullifying Section 28 of that Act contrary to the object of enactment of the Act as stated in the Bill. Thus the objection of the Stamp Reporter that the appeal is not maintainable under Section 19(1) of the Family Court Act, 1984 was upheld and appeal was dismissed as not maintainable. 1

Award to children The requirement of the husband or the wife would also include expenses required for the maintenance of the child. The interpretation of the provisions should not be too literal; but purposive and functional. As the provisions contained in Section 26 would go to indicate, the court is empowered to pass interim as it may deem just and proper with respect to maintenance of minor children. Section 26 operates also during the pendency of the proceeding under the Hindu Marriage Act. So, assuming that the provisions contained in Section 24 stricto sensu do not authorize grant of maintenance to child, Section 26 authorizes the grant of pendente lite maintenance by way of interim order during the pendency of the proceeding. , if the petition contains the averments, the court is empowered to grant maintenance under Section 24 or under Section 24 read with Section 26 of the Act 2 which is as under: ‘Custody of children.— In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provision in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.’ Therefore the power of court to award maintenance for children flows from the power of the court to give directions for the welfare of the children and court can give necessary directions in this regard if the circumstances of the court warrant it necessary. 1

2

Ravi Saran Prasad @ Kishore vs. Rashmi Singh, AIR 2001 All 227 (DB). Mehendra Kumar Mishra vs. Snehlata Kar, I (1983) DMC 219 Orissa: 1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254.

Maintenance pendente lite—Burden of proof

53

Burden of proof In proceeding under Section 24 of the Hindu Marriage Act the Court is not obliged to press for burden of proof. The Court in the case of Ravinder Kaur v. Makhan Singh, 1 following the principles laid down in the previous cases held that there is an implied obligation in law upon a party to produce the best evidence in its power and possession for proper determination of the matter in issue before the Court. The Court held as under: It is a settled principle of law that a person who approaches the Court has primary onus to prove the facts averred for the grant of the relief prayed for. But it is equally true that the parties have to discharge their respective onus in the proceedings under Section 24 of the Hindu Marriage Act. Such proceedings are kind of summary proceedings and are normally never put to regular trial. In these circumstances, it becomes necessary that the parties to these proceedings must come before the Court with clean hands and must discharge their respective onus. Merely vague denial or their being no affidavit in support of the case of either of the parties, cannot give advantage to that party in the event any party withhold the best evidence which in normal course he/she ought to have in power and possession the Court would be well within its jurisdiction to draw adverse inference against that party. In this regard, reference can be made to the case of. 2 It is expected from every litigant irrespective of the fact whether he is seeking relief from the Court or not that he would state true and correct facts. These is only implied but specific obligation upon every party who approaches the Court to verify the facts true to the knowledge and belief of the party specially in the cases of present kind where the Court has to take prima facie view keeping in mind the urgency of the matter regarding grant or refusal of maintenance. Primarily the onus has to be discharged by respective parties in support of the averments made in the application or reply as the case may be. Concept of heavy burden of proof would be applicable during the trial where the parties have the liberty to lead oral and documentary evidence in support of their case. The Court would be well within its jurisdiction to draw adverse inference against a party who actually or attempt to withhold the best evidence and true facts from the Court with intention to frustration the claim of others at this preliminary state of proceedings. 3

1 2 3

(1999) 1 PLR 389 Sangeeta vs. Ved Parkash, I (2000) DMC 470 P&H. Gurvinder Singh v. Harjit Kaur, (1998-2) 119 PLR 422.

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Law of Maintenance

For determining the claim for maintenance pendente lite and the expenses of proceedings as contemplated under Section 24 of the Act, what ought to be kept in mind is that in case the applicant has no independent means he or she is always entitled to the maintenance and expenses, unless good cause is shown to deprive him or her of it. The good cause for depriving an applicant for the maintenance and expenses of the proceedings could be the availability of the an assured independent income derived from the property, service, occupation, or other sources which may satisfy the genuine needs providing support to him or her keeping in view the status of the family to which he or she belongs and not the income of the wife’s parents or other relations which cannot be taken into account so as to constitute good cause for not granting interim maintenance and expenses of the proceedings. There may be cases where the character and gravity of the conduct is such which may be found repugnant to the concept and the institution of marriage and it may be wholly unjust to ignore them while considering the question of releasing or withholding the benefit contemplated under Section 24 of the Act, but it all depends on the facts of each case and cogent reasons have to be recorded for withholding the grant of the benefit secured under Section 24 of the Act. 1

Challenge in Appeal Section 24 of Hindu Marriage Act, 1955 is a provision for temporary alimony and does not entitle a Court to pass a decree and a decision given under Section 24 has been described as an order. Similar phraseology has been used in the language given in Ss. 25 and 26. There is, however, a difference between Section 24 and Ss. 25 and 26. An order passed under Section 24 is of a temporary nature and binds the parties so long as the matter is pending at the trial. Section 25 provide for permanent alimony and maintenance whereas Section 26 deals with custody of children. The Parliament having thought that orders provided for in Ss. 25 and 26 were of a more serious nature than that contemplated by Section 24, conferred rights of appeal against orders passed under them. It did not make any provision of appeal against an order passed under Section 24 of the Act. 2 No appeal lies from an order under Section 24 of the Hindu Marriage Act. An appeal is a creature of statute. This appeal is

1 2

Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 (MP). Ram Narain Pathak vs. Urmila Devi, AIR 1980 All 344: 1980 All WC 281.

Maintenance pendente lite—Challenge in revision

55

accordingly dismissed. There will be no order as to costs as the respondent was not represented in this Court. 1 An appeal is provided against decrees passed under the Hindu Marriage Act and against those orders only which are made under Section 25 and Section 26 of the Hindu Marriage Act, 1955 (provided they are not interim orders). A comparison of the new Section 28 with the original Section 28 shows that no appeal is contemplated under the amended law against an order under Section 24. What has not been expressly included in the new Section 28 must be implied to have been excluded. Therefore, having regard to the new Section 28, no appeal lies now against an order under Section 24. 2 In one case the application under Section 24 was made before the amendment was brought in. But Section 39(1)(i) of the Marriage Laws (Amendment) Act, 1976 declares that all petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Amendment Act shall be dealt with and decided by such court, if it is a petition or proceeding under the Hindu Marriage Act, then, so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended under this Act, Accordingly, the appeal against the order must now be considered in the light of the amendment Section 28 of the Hindu Marriage Act. 3 In another case the District Judge consigned the record and ordered that unless the amount of maintenance is deposited by the appellant, no further proceedings shall be taken. In appeal against this order, it was held that according to provisions of Section 28(2) of the Hindu Marriage Act, 1955 orders made by the Court in any proceedings under this Act, under Section 25 or Section 26, shall subject to the provision of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise or its original Civil Jurisdiction. It is thus apparent that though the appeal shall lie to this Court only if the impugned orders are passed under Section 25 or under Section 26 of the Act. When the appeal is not against the orders passed under Section 25 and 26 of the Act, this appeal is not maintainable. 4

1 2 3 4

Rajpal vs. Dharamavati, AIR 1980 All 350. Narain Singh vs. Rukmani, AIR 1977 AP 93. Narain Singh vs. Rukmani ibid Hari Ram vs. Mahila Pista Bai, I (1985) DMC 471 MP.

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Law of Maintenance

Challenge in revision The expression, or the word, ‘proceeding’ as used in Section 115 of Civil Procedure Code, 1908 has to be given the same meaning as in the opening part of Sub-section (1). It follows that ‘the other proceeding’ must be an original proceeding and not merely a proceeding in a suit or any other original proceeding. 1 The proceeding commenced with an application under Section 24 was a proceeding in the matrimonial proceeding or the matrimonial suit for divorce. The proceeding under Section 24 was not by itself an original proceeding. It was accordingly contended, and I think rightly, that this Court is precluded from varying or revising the order sought to be revised in the present case unless it could be shown under clauses (b) of the proviso that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. 2 An order granting interim maintenance is not an interlocutory order and revision there against is not barred under Section 397(2) of the Code. 3

Civil Procedure Code is applicable In terms of Section 21 of the Act, the proceeding under Section 24 shall be regulated as far as may be by the Code of Civil Procedure subject of course to the other provisions contained in the Act or the Rules framed by the High Court. There is no provision either in the Act or in the Rule that Order 11, Civil Procedure Code shall have no application to a proceeding under Section 24 of the Act. 4 Even assuming that Section 141, C.P.C. is also to be taken into consideration, it must be read subject to the special procedure prescribed under Section 21 of the Act. The maxim generalia specialibus non derogant (general provisions will not abrogate special provisions) or generalibus specialia derogant (Special things derogate from general) applies to matters of procedural law. Section 21 of the Act, which is a special provision, would therefore prevail over Section 141. C.P.C. which is a general provision. Moreover all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, and Section 141 would stand excluded as it would not be practicable to apply

1 2 3

4

Madhvi Sirothia vs. Narendra Nath, 1980 AWC 45. Iqbal Singh Cheema vs. Adarsh Cheema, I (1982) DMC 282 All. Sunil Kumar Sabharwal vs. Neelam Sabharwal, I (1991) DMC 547 P&H. Ganga Devi vs. Krushna Prasad Sharma, AIR 1967 Orissa 19: 31 Cut LT 294: ILR (1964) Cut 958: (1965) 7 OJD 322.

Maintenance pendente lite—Compliance of order

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it to the proceedings under the Act in view of Section 21. However Order 11 has full application to the proceedings under Section 24 of the Act. 1

Comparison between Hindu Adoptions & Maintenance Act & Hindu Marriage Act, 1955 There is no inconsistency between the provisions of sub-section (1) of Section 25 of the Hindu Marriage Act and those Section 18 of the Act 1956. Assuming that on a true construction of Section 18 of the Act of 1956 a right is conferred only on a lawfully married Hindu wife to claim maintenance, it does not follow that the provisions of another statute whereby parties to a Hindu marriage even other than a lawfully wedded Hindu wife are granted rights of maintenance would be inconsistent therewith. Moreover, it is not as if a wider construction of Section 25(1) of the said Act of 1955 would render the provision of Section 18 of the Act of 1956 redundant. Under sub-section (1) of Section 18 of the Act of 1956 a Hindu wife is entitled to claim maintenance from her husband even without filing any petition for nullity or divorce or judicial separation or restitution of conjugal rights, whereas there is nothing either in the provisions of Section 24 of Section 25 of the said Act of 1955 which confers any such right. 2

Compliance of order To get the order complied with the inherent power can be exercised by stay of the proceeding initiated by the defaulter or by striking out his defence where the proceeding has been initiated by the party in whose favour the order is passed or to dismiss the application of the defaulter initiating the proceeding. The normal rule of restraint to exercise inherent power in cases of availability of alternative forum would not be attracted to realise the money as per the order for pendente lite maintenance and litigation expenses, since the same is to be paid to a person having no sufficient means. Execution of the order for the same takes time in view of the procedure provided under O. 21, C.P.C. and without the maintenance and litigation expenses, the party in whose favour the order is passed does not get a fair chance to prosecute or defend the proceeding as the case may. Where a party does not get adequate opportunity natural justice is violated. Therefore, the court comes to the rescue of that person in exercise of the inherent power. However, the wider the power, the greater should be the restraint. Court having wide power, therefore, should carefully consider the facts and 1 2

Ganga Devi vs. Krushna Prasad Sharma ibid Govindrao Tanoji Musale vs. Sou. Anandibai, AIR 1976 Bombay 433.

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Law of Maintenance

circumstances to use only that much of power which would be sufficient for getting the order complied with and not beyond. It should be remembered that in absence of specific provision, the order should not be penal in nature. A just balance is to be struck. 1 Contumacious, conduct or deliberate act not to comply with the order can be dealt with stiffly by dismissing the application or striking of the defence of the defaulter as the case may be. Before exercising the said power, court is to give a clear finding based on reasons and material to that effect. 2 Since the Court has the power to stay the proceeding or dismiss the same, the power should be exercised by doses. It should first stay the proceeding and give opportunity to the defaulter to pay the same. In spite of it where the default continues it might dismiss the application initiated by the defaulter in case, it comes to the conclusion that the non-payment was deliberate and contumacious. However, the power should not be allowed to be utilised by a party to harass the other party to whom direction is given merely on account of non-payment where the circumstances would indicate that the non-payment was on account of reasonable cause. In such cases, the party entitled to receive pendente lite maintenance and expenses of the proceeding can be allowed to execute the order and till then the proceeding can be stayed. 3

Computation Maintenance depends “upon a gathering together of all the facts of the situation. The amount of free estate, the past life of the married parties and the families. A survey of the condition and necessities and rights of the members. On a reasonable view of change of circumstances possibly required in the future — Regard being of course had to the scale and mode of living and the age, habits and wants and class of life of the parties. 4

1

2 3 4

Binayak Chandra Pady vs. Kamala Padhy @ Padhiani, AIR 1987 Orissa 167: (1986) 2 Orissa LR 63: (1987) 63 Cut LT 245. Binayak Chandra Pady vs. Kamala Padhy ibid. Binayak Chandra Pady vs. Kamala Padhy ibid. Ekradeshwari vs. Homeshwar, AIR 1929 PC 128

Maintenance pendente lite—Conclusion of proceedings

59

Conclusion of proceedings The interim order passed under Section 24 could be passed in pending proceedings and once the proceedings come to an end, the order under Section 24 can no longer be passed. 1 The proceedings for maintenance pendente lite have to be concluded before the main petition is decided. However, the husband can snap the main proceedings while the application for fixation of maintenance pendente lite and litigation expenses is still pending either by absenting from the proceeding in case he is the applicant in the main case and by getting the same dismissed in default or where the main petitioner is filed by the wife, by making a statement confessing judgment in favour of the wife. In he first case, when the husband absent in the petition, where he is the applicant, the Court will have no option but to dismiss the petition in default but that would not mean that he can take away the right of the wife and the child given under Ss. 24 and 26 of the Act to continue with those applications and to have the amount determined. Similarly, if the husband is respondent in the main petition and he confesses judgment in favour of the wife, then two courses can be open to the Courts. One would be to dispose of the main petition on the consent of the husband and grant the decree to the wife but to continue to proceed with the petition under Ss. 24 and 26 of the Act for fixing maintenance pendente lite. The other would be if it the Court comes to the conclusion that the petition under Ss. 24 and 26 of the Act cannot continue if the main petition stand disposed of, then to keep the main petition in abeyance and first to decide the petition under Ss. 24 and 26 of the Act for granting maintenance pendente lite and litigation expenses and thereafter to decide the main petition on the concession of the husband. If the second course is open to the Court to follow, it would clearly mean that the liability of the husband to pay maintenance pendente lite continue so long as the petition under Ss. 24 and 26 of the Act is pending . It has been held that following the first course is neither illegal nor against any provision of the statute and if that course is followed by the Courts then there is no justification for not awarding maintenance pendente lite to the wife even beyond the conclusion of the main petition till proceeding under Ss. 24 and 26 of the Act are finalized. 2

1

2

Rajendra Singh vs. Patwant Kaur, II (1982) DMC 169 Raj; Nand Kishore Kapoor vs. Shanti Kapoor, II (1982) DMC 181 All. Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981 Hindu LR 345: ILR (1981) 2 P&H 400.

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The necessity for passing any interim orders would come to an end with the termination of the main proceedings and there would be no question of the appellant trying to defend any proceedings after her adversary had withdrawn from the contest. There would hardly be any occasion for making an interim provision for the defence of a case that had already concluded. 1 The procedure of law or the course of justice can be moulded at the sweet will of the husband in his favour and to the detriment of the wife. 2

Conditions for granting maintenance Expression ‘any proceedings under this Act’ appearing in Section 24 of Hindu Marriage Act, 1955 covers the proceedings under Section 25 thereof. Section 25 contemplates that an order for permanent alimony can be made at the time of the passing of any decree under the Act or any time thereafter. Now, if a spouse has to make an application after any decree under the Act has been passed and has no sufficient means of his/her own, such spouse has to be provided for prosecuting the application for permanent alimony when the other spouse opposes any grant thereof. Any other construction will be narrow and will lead to frustration of the provision. Section 25 is a continuation of the main proceedings. Placement or numbering of the Section or the description of one set of documents as petitions and the other set as applications does not alter this position. The purpose or using the words ‘husband’ or ‘wife’ is to identify the position occupied by the parties in the main proceedings, and not to exclude ex spouses. 3 For considering the application for grant of interim maintenance, only independent income of wife can be taken into account or the conduct of the applicant, who claims interim maintenance so as to debar her from getting the interim maintenance. The petitioner has placed nothing before the Trial Court or before this Court that the respondent has got an independent source of earning except the bare and vague affidavit filed before the Trial Court, which was not believed by the Trial Court. Nothing against the conduct of the respondent has also been pointed out so as to disentitle her from the interim maintenance. While hearing on an application for grant of interim maintenance, the law does not require holding of regular trial or recording of evidence, though in 1 2

3

Nirmala Devi vs. Ram Dass, AIR 1973 P&H 48: 1972 Cur LJ 34. Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981 Hindu LR 345: ILR (1981) 2 P&H 400. Dashrath vs. Saroj, I (1989) DMC 222 MP.

Maintenance pendente lite—Conduct of parties

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some cases it may be necessary to record evidence, but it depends on the facts of each case. 1

Conduct of parties The Court normally consider it prudent to adhere to the principle that a marriage de facto carries the right to alimony pendente lite; but this principle of matrimonial law has necessarily to be considered in the light of the attending circumstances, when the Court exercise its discretion as to whether the wife should be granted or not alimony pendente lite and expenses for litigation. The conduct of the parties cannot be ignored by the Court while passing the orders under Section 24 of the Hindu Marriage Act. In a case where the wife has brought cohabitation to an end by such misconduct for which the husband is not be blamed, the Court may well refuse to grant alimony and expenses for litigation pendente lite. 2 In the above case it was found that the wife’s claim for restitution of conjugal rights has already been dismissed by the trial Court and the appeal against the same has also been dismissed, after upholding the trial Court’s finding that the wife is leading a life of adultery by having regular illicit connections with Dhanraj Hirkane. In these circumstances it was held that the misconduct on the part of the wife, having thus been established, she has obviously no case for her claim for alimony and litigation expenses pendente lite. 3 It is within the discretion of the Court to make an order for pendente lite maintenance, and merely because two of the conditions, namely, the wife or the husband, as the case may be, has no independent income sufficient for her or his support and necessary expenses of the proceedings, and the other spouse has sufficient means, are satisfied, then it is not necessary for the Court to order payment of maintenance pendente lite and expenses of the proceedings. Therefore, though it is not specifically provided that the conduct of the applicant for maintenance pendente lite and expenses of the proceedings is also to be taken into consideration, but the fact that the discretion of the Court to make an order or not to make an order goes to show that the Court has to take the conduct and the other circumstances also into consideration while disposing of the application under Section 24 of the Act. 4

1 2 3 4

Dashrath vs. Saroj, I (1989) DMC 222 MP. Sulochana Bai vs. Tikaram, I (1986) DMC 351 MP. Sulochana Bai vs. Tikaram ibid. Balbir Singh vs. Swaran Kanta, AIR 1981 Raj 266: 1980 Raj LW 654.

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Consent order When the order clearly speaks that it was passed on the basis of the statement given by the parties at the time of hearing and it was found that the learned Trial Court rightly exercised its discretion in awarding the interim maintenance from the date of the order, interference was declined. 1

Considerations for granting maintenance While fixing permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, 1955, the court is expected to make detailed inquiry and has to take into account not only the income but other properties of the parties, their conduct and other circumstances of the case that the court might consider relevant. But that would not be so for the decision of the application under section 24 of the Act as in its very nature, the inquiry under section 24 has necessarily to be summary. The court cannot be bogged down to intricacies of a protracted trial for fixing maintenance pendente lite and expenses of the proceedings. Otherwise, the very object of the section would be frustrated which is that a party is not handicapped in prosecuting his or her case. But, then in deciding the application under Section 24 of the Act, the court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. 2 The following principles 3 would appear to be relevant for the purpose: (1) position and status of the parties; (2) reasonable want of claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); (3) income of the claimant; (4) income of the opposite party; (5) number of persons opposite party is obliged to maintain. Two corollaries may be added here: (1) In arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc. are to be excluded; and (2) though under the law opposite party may to be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family 1 2

3

Lata Saluke vs. Shivaji Rao Saluke, I (1995) DMC 42 Gwalior. Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988 (2) DMC 110: 1988 RLR 428 Pradeep Kumar Kapoor vs. Shailja Kapoor ibid

Maintenance pendente lite—Considerations for granting maintenance 63

and where either there are no parents or are unable to maintain themselves, the court may in a given circumstance consider the expenses to be incurred on the maintenance of brother or sister by the opposite party. After all, court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act. 1 Whilst deciding the case of maintenance under the Act, Courts do not apportion blame to the parties. What is to be seen is whether there has been a breakdown of marriage. If the parties do not find it feasible to live together then the wife would be entitled to maintenance unless her behaviour is such which would even disentitle her from claiming the relief of divorce. I am unable to hold that the behaviour of the wife is such that she would be wholly unjustified in leaving the matrimonial home. In any event, these are matters to be decided on the basis of evidence at the final decision of the suit. What is important in these proceedings is to see as to what is the status enjoyed by the parties and what is the relative income of the parties for the purpose of grant of maintenance. The husband has admitted that his income is Rs. 40,000/-. From a perusal of the accounts of the credit card produced by the husband it was apparent that he had quite expensive tastes. The restaurants frequented and the scope visited for the purchase left no manner of doubt that the husband is living a lavish life. Therefore, there may be some justification in the submission that the assessment of income by the husband at Rs. 40,000/- is not realistic. On the other hand it was seen that wife is also admittedly earning Rs. 12,000/- per month. She had also admitted that she is paying to a chauffeur a sum of Rs. 2,500/- per month. Certain medical bills which have been attached with the rejoinder indicated that perhaps the medical expenses are also being reimbursed. She was also holding a very high ranking position. Therefore, it would also not be possible to hold that the income of the wife has been correctly reflected. If the perquisites are included in the income it would perhaps be much higher than Rs. 12,500/-. Therefore it was held that wife was better off living with the parents in a bungalow at Juhu than in a cramped flat at Worli. In these circumstances the amount of maintenance was fixed as under: ‘The amount of maintenance would have to be fixed by taking a rational and balanced view of various factors. The Court has to be guided by the relevant provisions of the Act and the object of Section 18 and 23. Thus the Court has to bear in mind the status 1

Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988 (2) DMC 110: 1988 RLR 428

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of the parties, reasonable wants of the claimant, the income and property of the claimant and the number of persons whom the husband has to maintain. Whilst it is important to ensure that the maintenance amount is sufficient to enable the wife to live in somewhat the same degree of comfort, as in the matrimonial home, the amount of maintenance should not be so exorbitant that the husband is unable to pay. By adoption of such a course, no purpose would be served. In other words, the amount of maintenance should be punitive in nature. It should aid the wife to live in a similar style as she enjoyed in the matrimonial home. It should not expose the husband to unjustified contempt or other coercive proceedings. On the other hand, the amount of maintenance should not be so low, as to make the order meaningless. Naturally, there can be no mathematical exactitude, in these matters. The Court has to take a general view, and try to fix an amount which would be by and large acceptable to both the husband and the wife. A perusal of the order passed by Justice Kapadia at the ad-interim stage would show that a maintenance of Rs. 7,500/- at ad-interim stage was granted on the allegation that the income of the husband was Rs. 2 lakhs. At the same time it is to be noticed that the various factors which have been now brought out on affidavit were not before this Court at the adinterim stage. , income depicted by both the sides is very much on the lower side. The husband could not be enjoying such a high standard of living unless he was earning extremely well. On the other hand the wife could not possibly afford to keep a chauffeur if her income was only Rs. 12,500/-. It would however be difficult to put a figure on the income of both the parties. There appears to be hardly any change in the style of life enjoyed by the wife. She continues to live with her parents in a bungalow at Juhu. Parents of both the husband and the wife enjoy independent income. None is dependent on the husband or the wife. Keeping the aforesaid facts in view I am of the considered opinion that it would be just and proper that the husband be directed to pay a sum of Rs. 7,500/- per month as ordered in the ad-interim order. This would on the admitted fact give the wife an income of Rs. 20,000/- per month which should be sufficient to keep her in the style and status enjoyed by her, whilst living with the husband.’ 1 Actually according to Section 24 of the Hindu Marriage Acts Court has first to determine the income of the spouses and then in view of the income of the husband and wife coupled with the other facts and circumstances the alimony has to be passed. What the learned lower Court has done in the instant case is that the income of the joint family has been taken into consideration and from that income inferences have 1

Rekha Deepak Malhotra vs. Deepak Jagmohan Malhotra, II (1999) DMC 453 Bombay.

Maintenance pendente lite—Date from which amount granted

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been drawn and thereafter on the basis of the expenditure which according to the Court was incurred by members of the family, the order has been passed. The Court has not taken into consideration the material portions of the evidence and the documents on record showing the ownership of the watch-shop and the packaging. Unit of incense sticks. Although it is not necessary for the Court to critically examine the evidence on record while passing an order of maintenance pendente lite, however, the mandate of Section 24 of the Hindu Marriage Act should not be lost sight of and the Court is bound to arrive at a conclusion that the husband has a particular amount of income from which he can meet the expenses to a particular extent of his wife. In view of the aforesaid, in my opinion, the order impugned has been passed without taking into consideration the relevant circumstances as enumerated in Section 24 of the Hindu Marriage Act, the order is, therefore, against the provisions of law. It is accordingly quashed. The case is remanded to the lower Court for deciding the application afresh after determining the income of the applicant-husband and thereafter to determine the extent of maintenance amount which the non-applicant is entitled to get. 1

Date from which amount granted Ordinarily direction to pay interim maintenance is to take effect from the date of filling of application for the same unless the Court in exercise of its discretion for good reasons decided differently. 2 Even in England, law is that on petition for divorce, the Court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition and up to the date of determination of the suit as the Court thinks reasonable. In this case, the petitioner had claimed the alimony pendente lite from the date she made the application and it was held that the District Judge ought to have allowed the alimony pendente lite from the date the petitioner made the application for the said purpose and should not have allowed it from the date he passed the order, which order was passed after 10 months of the making of the application. 3

1 2

3

Rajendrakumar Jain vs. Sudha Jain, I (1992) DMC 240 MP. Sarojini Sarangi vs. Biswanath Sarangi, I (1989) DMC 53: Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: : AIR 1983 Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217: Kaushalya Singha vs. A.K. Singha, II (1983) DMC 323 Delhi. Saroj Devi vs. Ashok Puri Goswami, AIR 1988 Rajasthan 84.

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Law of Maintenance

Ordinarily, the amount of maintenance is required to be awarded from the date of the application but is not from the date of receipt of summons of the suit against the wife, by the respondent. In absence of any reasons whatsoever for not awarding amount of interim maintenance from the date of the application, the order can not be upheld. 1 While the discretion is conferred on the Court to fix a date for award of maintenance other than the one from the date of the filing of the petition for divorce, such discretion should be exercised reasonably, fairly and consistent with the right guaranteed to the wife to be maintained by her husband and the obligation cast on the husband to maintain his wife under Section 24 of the Act. Section 24 of the Act provides for grant of interim maintenance during the pendency of the proceedings initiated under the Act. Therefore, when the Court on the basis of the materials on record, finds that the wife is entitled for grant of maintenance, the maintenance awarded cannot be denied to the wife from the date of application filed by her seeking maintenance unless her conduct or the evidence on record discloses that the wife had sufficient financial capacity to maintain herself till the date of the order and she deserves to be awarded maintenance only from the date of the order. 2 Provision of Section 24 of the Act applies to both, the wife or the husband, as the case may be provided the spouse has no independent income sufficient to support and meet the necessary expenses of the proceedings. This being so, applied u/Sec 24 of the Act may be filed along with the suit by the plaintiff or even subsequently therefrom by the plaintiff. Similarly, the defendant may also avail of this provision by making application. Spouse who is claiming decree in his/her favour, if by some reason or the other, could not file such application along with the suit, may file application subsequently claiming maintenance pendente lite from the date of institution of the and the Court in its discretion may grant maintenance pendente lite payable from the date of the institution of the suit. But, the respondent cannot enjoy the same benefit claiming maintenance pendente lite from the date of institution of the suit. However, in the exercise of judicial discretion, Court may grant maintenance pendente lite in favour of the respondent from the date of his/her first appearance in the suit, if prayer is made specifically to this effect in the application or from the date of the application.

1

2

Padma Vishnu Pathak vs. Vishnu Vishwanath Pathak, 1995(1) CCC 235 Gujarat. Lakshmi Sharan vs. Anurag Sharan, I (2001) DMC 767 Kar.

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Therefore, normally the point of time for granting maintenance pendente lite would be from the date of application. But, if specific prayer is made in the application then the order may be made operative in consonance with the prayer made in the application i.e., either from the institution of the suit in favour of the plaintiff or first appearance made by the respondent. However, it is expected of the Matrimonial Court to decide such application on priority basis at its earliest opportunity on the basis of the affidavits and counter affidavits as far of possible so as to cut short the time. However, exception to above rule cannot be ignored where parties found guilty of protracting the proceedings by any manner and delay caused in deciding application on account of such a party, in such a case Court can certainly order for payment of maintenance amount from the date of prior. 1 However, where the application is kept pending and the party making application is not responsible for protracting the proceedings, in such cases Court has to bear in mind two maxims of equity which are well settled, namely, “Actus Curiae Neminem Gravabit” An act of the Court shall prejudice no one. In Broom’s Legal Maxims, 2 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is “Flat Justitia”, justice be done and that justice should be fair causing prejudice to no one. 3 Another view is taken by Madhya Pradesh High Court. According to it the maintenance allowance is normally granted from the date of the order. A special reason is, however, required to be recorded for granting maintenance allowance from the date of the filling of the application. When no special reason has been assigned by the Trial Judge for granting the interim maintenance allowance from the date of the filing of the application under Section 24 of the Hindu Marriage Act, it was held that the order was not sustainable. 4 Even though in an earlier case the same court had frowned upon the delay which takes place in disposal of application for maintenance and held to the contrary in following words: Spouse who is claiming decree in his/her favour, if by some reasons or the other, could not file such application along with 1

2 3 4

Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417 MP. 10th Edition, 1939 at page 73 Indira Gangele vs. Shailendra Kumar Gangele ibid Vinay Kumar vs. Muthileshbai, 1996(1) CCC 307 MP.

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Law of Maintenance

the suit, may file application subsequently claiming maintenance pendente lite from the date of institution of the suit and the Court in its discretion may grant maintenance pendente lite payable from the date of the institution of the suit. But, the respondent cannot enjoy the same benefit claiming maintenance pendente lite from the date of institution of the suit. However, in the exercise of judicial discretion, Court may grant maintenance pendente lite in favour of the respondent from the date of his/her first appearance in the suit, if prayer is made specially to this effect in the application or from the date of the application. 1 Yet another view of Punjab and Haryana High Court is that the section 24 of the Hindu Marriage Act was enacted with a view to provide necessary funds to the needy spouse to prosecute the matrimonial proceedings as also to maintain herself or during the pendency of the proceedings. If an application is filed under Section 24 of the Act maintenance pendente lite can be granted from the date of application or from the date of notice in a proceeding initiated by the husband or wife for divorce. 2 An application under Section 24 of the Act is not a suit by the wife for maintenance under the Hindu Adoptions & Maintenance Act, 1956. Therefore, the maintenance could not have been granted prior to the date of application under Section 24 of the Act. 3

Delay in disposal It is expected of the Matrimonial Court to decide such application on priority basis at its earliest opportunity on the basis of the affidavits and counter affidavits as far of possible so as to cut short the time. However, exception to above rule cannot be ignored where parties found guilty of protracting the proceedings by any manner and delay caused in deciding application on account of such a party, in such a case Court can certainly order for payment of maintenance amount from the date of order. 4 However, where the application is kept pending and the party making application is not responsible for protracting the proceedings. In such cases Court has to bear in mind two maxims of equity which are well settled, namely. “Actus Curiae Neminem Gravabit” An act of the Court shall prejudice no one. In Broom’s 5 this maxim is explained that 1

2 3 4 5

Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417 MP. Paramjit Kaur vs. Kashmir Singh, I (1994) DMC 504 P&H. Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa. Indira Gangele vs. Shailendra Kumar Gangele, ibid. Broom’s Legal Maxims, 10th Edition, 1939 at page 73

Maintenance pendente lite—Denial of marriage

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this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The other maxim is “Flat Justitia”, justice be done and that justice should be fair causing prejudice to no one. 1 Where a litigation is prolonged unduly, either on account of the conduct of the Opposite Party, on account of the heavy docket in Court or for other unavoidable reasons, it would be just and contrary to the very purpose of the provision to postpone the effectuation of the order to the date of the order. Such postponement deprives the claimant of the benefit of the fruits of a decree which he or she could have obtained through a Civil Court. Looking at the matter from this perspective also, there is justification to say that ordinarily the claimant who seeks an order for maintenance under Section 125 of the Code shall obtain the relief from the date when she or he approached the Court i.e. the date of application and only where there are circumstances justifying a contrary view, it can be postponed to the date of the order. 2 When inspite of delay, the learned Magistrate did not pass and order for interim maintenance. This is a mockery of the legislative intention to provide a summary, quick and comparatively cheap remedy. 3

Denial of marriage The object of this Section is that neither party may suffer by her or his inability to conduct the proceedings for want of money for expenses. The real object of the maintenance is to support the party without means during pendency of proceedings. Exercise of power under this section does not appear to be dependent on the defence raised by the opposite party. Even in cases where the factum of marriage is denied by the opposite party the court has jurisdiction to determine prima facie the factum of marriage on the basis of documents and affidavits that may be placed before the Court. The passing of an order under this Section further cannot be postponed till the final determination of the relationship of husband and wife. If it be so the purpose of this section would be frustrated. In a petition for restitution of conjugal rights if the defence taken is that there was no marriage between the parties, and the petitioner-wife had no means to support her or to conduct the legal proceedings she would be without any remedy. In proceedings for restitution of conjugal rights the factum and validity of marriage is 1

2 3

Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417 MP. Saroj Bai vs. Jai Kumar, 1994 JLJ 725 FB. Rafikunbai vs. Liyakat Khan, I (1996) DMC 317 MP.

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generally denied so that the party approaching the Court for relief may be harassed and on account of harassment, such party may not pursue the remedy. I am therefore, of the opinion that even if the factum or validity of the marriage is denied, the Court exercising jurisdiction under the Act has power to award maintenance and litigation expenses to the applicant i.e. the wife or the husband after prima facie determining whether there was marriage age or not. 1 To allow a defendant the bald plea of denial of status in the face of letters written by the defendant, in the face photograph showing the plaintiff and the defendant in intimate relationship would be to allow a prima facie case to be thwarted at the hands of a designing defendant. The device of a denial for the sake of suggesting that the Court has no jurisdiction to grant interim maintenance is to strike at the root of administration of justice and more so in a case where the plaintiff who claims to have lived with the defendant as husband and wife for years is now deserted by the defendant and is treated by the defendant as a woman without any status. It would allow injustice to be perpetrated by mere deliberate act of denial by the defendant. 2

Determination of amount The wife moved an application under Section 24 of the Act for fixation of maintenance pendente lite on the ground that she had no source of income whereas the husband was earning more than Rs. 1500/per mensem. She claimed maintenance allowance pendente lite at the rate of Rs. 500/- per mensem and litigation expenses of Rs. 2,000/-. The husband also moved an application under Section 24, of the Act against the wife on the ground that the wife was doing embroidery and tailoring work and was earning Rs. 2,000/- per mensem. He was unemployed and was dependent upon his poor parents. He claimed maintenance allowance pendante lite at the rate of Rs. 500/- per mensem and Rs. 2500/- as litigation expenses. The Matrimonial Court, on appraisal of the material placed before it, came to the conclusion that the wife had no source of income, whereas the husband was doing the business of radio and T.V. technician and was earning Rs. 1000/- per month. He fixed the maintenance pendente lite for the wife at rate of Rs. 300/- per mensem and also directed the husband to pay Rs. 1100/- as litigation expenses to her. The order was affirmed. 3

1 2 3

Jagmohan Verma vs. Sunita Verma, I (1983) DMC 176 Delhi. Nemai Chand vs. Lila Jain, AIR 1968 Cal 405 (DB). Baljore Singh vs. Alka, I (1991) DMC 318 P&H.

Maintenance pendente lite—Discretion of Court

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Discretion of Court Wide discretion is conferred on the Court to pass order for maintenance pendente lite and costs of the proceeding. But the discretion is judicial and not arbitrary or capricious. The initial words of the Section “in any proceeding under this Act” and the words “such sum as, income of the respondent, it may seem to the Court to be reasonable” are clearly suggestive of the wide amplitude of the discretionary power conferred on the Court. It is also clear from the Section 24 that the amount of maintenance that one spouse may be ordered to pay to the other must be such as appears to be reasonable to the Court in exercise of that discretion and the Court in doing so must have regard to the petitioner’s own income and the income of the respondent. Any decision on the subject of alimony under the Section must necessarily turn on the facts and circumstances of each case and no fixed rules can be expected on the question. While determining the quantum of maintenance the Court has not only to take into consideration the income of the applicant and the respondent as provided in the Section, but also relevant facts and circumstances in the case including the conduct of the parties. In its very nature the quantum of interim maintenance cannot be taken to be a fixed amount which. If determined once, can in no circumstance be altered. The change in the circumstances relevance to the matter may call for a revision of the order. No doubt Section 24 unlike Section 26 does not expressly provide that the Court may pass orders for interim maintenance/expenses of the proceeding from time to time. But there is no express or implied bar in the provision for exercise of such jurisdiction in a deserving case. Therefore, it will neither be legal nor just and proper to limit the wide discretionary power conferred on the Court by holding that the Court has no power to modify or vary its order awarding interim maintenance even on proof of changed circumstances. 1 Spouse who is claiming decree in his/her favour, if by some reasons or the other, could not file such application along with the suit, may file application subsequently claiming maintenance pendente lite from the date of institution of the suit and the Court in its discretion may grant maintenance pendente lite payable from the date of the institution of the suit. But, the respondent cannot enjoy the same benefit claiming maintenance pendente lite from the date of institution of the suit. However, in the exercise of judicial discretion, Court may grant maintenance pendente lite in favour of the respondent from the date of

1

Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491 Orissa.

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his/her first appearance in the suit, if prayer is made specially to this effect in the application or from the date of the application. 1 Normally the point of time for granting maintenance pendente lite would be from the date of application. But, if specific prayer is made in the application, then the order may be made operative in consonance with the prayer made in the application i.e., either from the institution of the suit in favour of the plaintiff or first appearance made by the respondent. 2 A bare look to the provision of Section 24 of the Act demonstrate that it has been enacted exclusively for the benefit of the poor spouse who is unable to maintain and contest the case. therefore, it is always for such a poor spouse to avail this statutory benefit. 3 It is expected of the Matrimonial Court to decide such application on priority basis at its earliest opportunity on the basis of the affidavits and counter affidavits as far as possible so as to cut short the time. However, exception to above rule cannot be ignored where parties found guilty of protracting the proceedings by any manner and delay caused in deciding application on account of such a party, in such a case Court can certainly order for payment of maintenance amount from the date of order. 4 Where the application is kept pending and the party making application is not responsible for protracting the proceedings, in such cases Court has to bear in mind two maxims of equity which are well settled, namely, “Actus Curiae Neminem Gravabit” An act of the Court shall prejudice no one. In maxims Broom’s Legal maxims, 5 the maxim is explained that this maxim was founded upon justice and good sense; and afforded safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is “Flat Justitia”, Justice, be done and that justice should be fair causing prejudice to no one. 6 No doubt, there is no specific provisions in Section 24 of the Act relating to the issuance of such direction in fixing the point of time from which date maintenance pendente lite be made operative i.e., either from 1

2 3 4 5 6

Indira Gangele vs. Shailendra Kumar Gangele, II (1991) DMC 401 MP. Indira Gangele vs. Shailendra Kumar Gangele ibid Indira Gangele ibid Indira Gangele ibid 10th Edition, 1939 to page 73 Indira Gangele ibid

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the date of application, from the date of order or from the date of institution of the suit. It however, leaves to the discretion of the Court. 1

Dismissal of main petition The main object of the Section is to provide some amount for the sustenance of parties who are unable to support themselves. Under Subsection (1) the provision can be made at the time of passing of this decree or at any time subsequent thereto. As seen from Section 25 of Hindu Marriage Act, 1955 the expression used is “at the time of passing of any decree”. The word “decree” is not defined under the Hindu Marriage Act. Therefore, we can borrow the definition under the Civil Procedure Code. In fact, under Section 25-A of the Act, the provisions of the Civil Procedure Code are made application for enforcement of decrees and order under the Hindu Marriage Act, Section 2(2) of Civil Procedure Code defines a “decree” as a formal expression of an adjudication which conclusively determine the rights of parties with regard to all or any of the matters is controversy in the suit and may be either preliminary of final.” Thus a decree means the expression of an adjudication. The suit or petition may either be dismissed or allowed. A relief may be given or refused. In either case, it is a decree. There is no reason to give a restricted meaning to the expression “decree”. In this connection the word “any” is also significant. It indicates either allowing or rejecting. Under Section 28 of the Act all decrees are made appeal-able. If the contention of the learned Counsel that a decree means only granting a relief, then no appeal would lie against an order dismissing the petition as the word used in Section 28, the appeal section, is decree. But it is submitted that Section 28 used the words “decree made” as distinguished from “passing of the decree” used in Section 25. In our view it is a distinction without any difference. The expression “ at the time of passing any decree” used in Section 25 only means “that at the time of disposal of the case”. The emphasis is on the time and this is evident from the later expression “or at any time subsequent thereto.” The further expression that “any court exercising jurisdiction under this Act” also lends support the this conclusion. This Section from its express language empowers every Court dealing a matrimonial matter to give the relief of maintenance to either party irrespective of the fact whether the petition for any of the relief mentioned in Section 9 to 13 is dismissed or allowed, whether the relief are granted or declined. 1

Indira Gangele vs. Shailendra Kumar Gangele, II (1991) DMC 401 MP.

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Section 23-A of the Hindu Marriage Act was introduced in 1976. This Section enables the opposite party not only to oppose the relief of divorce, judicial separation or restitution of conjugal rights, but also make a counter claim for any relief under the Act and proves that it was the petitioner who was guilty of adultery, cruelty or desertion he or she is entitled to that relief. The words used are “any relief” which includes a relief under Section 25 and if the opposite party makes a counter claim for the relief under Section 25 while opposing the petitioner’s claim for divorce this Section empowers the Court to grant such relief. The word “any relief” occurring in Section 23-A has been held to include not only the reliefs mentioned in Section 9 to 13, but also a relief under Section 25 of the Hindu Marriage Act. 1 The Court, during the pendency of the proceedings under the Act viz. for restitution of conjugal rights, judicial separation, divorce or nullity or marriage, can grant to a spouse having no sufficient income of maintain himself/herself and to meet the necessary expenses of the proceeding maintenance pendente lite and litigation expenses. The object of enacting the section is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her poverty. It is the duty of the Court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of funds. However, if the application under section 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse or for some unforeseen circumstances, the whole purpose of the section stands frustrated in case it is dismissed on the ground that after the decision of main petition it does not survive. Therefore even if the main petition is decided finally, the application under Section 24 which is pending decision can continue. Similarly, a revision petition filed against an order under section 24 can continue in spite of disposal of the main petition. 2 The following observations of D.S. Tewatia, J. in Amrik Singh vs. Smt. Narinder Kaur 3 are worth referring in this regard: “If the view is that the provisions of section 24 of the Act were intended by the legislature to enable the indigent spouse to secure wherewithal to defend the proceedings against oneself and to 1

2

3

Silla Jagannadha Prasad @ Ramu vs. Silla Lalitha Kumari, I (1988) DMC 319 AP. Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H 298: (1984) 86 Pun LR 485: AIR 1984 P&H 332. AIR 1979 (P&H) 211.

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maintain oneself during the pendency of the proceedings, then it is incumbent upon the Courts to take an immediate decision upon the petition under section 24 of the Act, otherwise the delay would defeat the very purpose. Otherwise in a case where the Court delays the decision on the application till the fag end of the trial of the main case, right to maintenance and litigation expenses would be denied to the applicant on the specious that she had been able to prosecute the litigation for all that long period and had survived and so she was not entitled to favourable order on her application, for the litigation expenses and the interim maintenance under Section 24 of the Act was intended merely to meet the contingency of an indigent spouse not being able to prosecute the case and survive during the pendency of the proceedings which contingency would no longer exist when the proceedings had reached the stage of conclusion though not finally concluded. I do not thing that the interim maintenance and litigation expenses could be denied to the applicant on such a ground when the applicant had been filed during the pendency of the main proceedings and it is the court which delayed its decision thereon. If the relief could not be denied in the above situation then surely the applicant would not be denied the same relief even after the conclusion of the main petition”. This judgment was followed in Sundershan Kumar Khurana vs. Smt. Deepak, 1 and Bhanwar Lal vs. Smt. Kamla Devi. 2 Gokul Chand Mital, J. in Sudershan Kumar Khuran’s case (supra) observed that section 24 and 26 were enacted to provide maintenance to wife and child pendente lite Generally, the petitions under these sections are decided first and should as a matter of fact be decided before conclusion of main petition. The word “proceeding” in the section appears at three places and it connotes the main proceedings, that is, proceedings other than proceedings under Section 24. The words “monthly during the proceedings such sum” are very important. These words show the intention of the legislature that it intended to give maintenance to the indigent spouse till disposal of the main petition. If the application under Section 24 is taken to be included in the word “proceeding”, anomalous results would follow. Therefore if the application under Section 24

1 2

AIR 1981 P&H 305. AIR 1983 Raj 229.

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continues after dismissal of the main petition, the applicant is entitled to the maintenance till the date of the decision of the main petition. 1 Section 24 only mandates that if it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and for necessary expenses of the proceedings the court may order the respondent to pay to the petitioner the expenses of the proceeding. Implicitly or explicitly the section did not say at what point of time a party who has got the entitlement to claim for an order for the expenses of the proceedings should apply. The language of the section may indicate that the application should be filed as an interlocutory application in the main proceedings. Certainly Section 24 does not contemplate the initiation of an independent proceedings. But it shall not be treated as an independent proceeding on the mere happening of an accident that such an application remained undisposed of when the main proceedings ended. Notwithstanding the disposal of the main proceedings the court should dispose of the petition under Section 24 on merits, if circumstances do require it. The Court has power to do so. 2

Disputed marriage The same expression “wife” and “husband” have been used in Section 24 of the Act and it is apparent that those expressions in that section on a parity of reasoning cannot be said to have been used in any difference sense than in section 25(1) of the Act. The expressions are wide enough to include any wife or husband who has brought a proceeding in the Court under the Act. In such case though the husband claimed that the wife had been divorced by writing made in May 1974, the wife denied the factum and validity of the divorce and that obviously would be an issue to be tried in the proceeding which the wife has brought before the relief can be granted to her. That, however, is a matter to be decided upon the merits of the case and as long as it is not decided, the proceeding cannot be terminated. Section 24 of the Hindu Marriage Act, makes provision for the interim alimony obviously in respect of such cases where pending the decision some provision has to be made for maintenance pendente lite and expenses of the proceedings. 3

1

2

3

Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H 298: (1984) 86 Pun LR 485: AIR 1984 P&H 332. Ellikkal Kuniyil Raghavan vs. K.K. Saroja, AIR 1987 Kerala 151: 1986 Ker LJ 1127: (1987) Ker LT 376: 1987 Mat LR 185: (1987) 2 DMC 408. Sou Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay.

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Distinction with alimony Under Section 24 of the ‘Act’ maintenance ‘pendente lite’ is to be granted while under Section 25 of the ‘Act’, provision has been made for grant of permanent alimony for a period after the passing of the decree. The above provisions are, therefore, distinct and independent of each other. 1 The object behind Section 24 of the Act providing for maintenance pendente lite to a party in matrimonial proceedings is obviously to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. When considering such a piece of legislation, it would not be right to adopt a narrow pedantic approach. On the other hand if the Court desires to gather the legislative intention from the provisions of such an Act, it must adopt a liberal and progressive approach keeping in mind that it was the liberal and progressive approach of the Legislature which led to the enactment being passed. It may be seen from the above mentioned provisions of the Act that even in a case of bigamous marriage one of the parties can seek a decree of nullity of marriage by way of petitioner or respondent which is permissible under Section 23-A of the Act. It may also be seen that in pending proceedings even at the instance of the second wife is a void bigamous marriage, the Court is empowered to make an attempt for re-conciliation, to pass necessary orders with regard to the custody of the children and disposal of the property exchanged at the time of marriage. The Court has also power in such proceedings to make an order of permanent alimony or maintenance under Section 25 of the Act. The Act confers wide powers on the matrimonial Court so as to regulate matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved bigamous marriage. In enacting Section 24 a special provision is made for ordering interim maintenance and the expenses of litigation to be provided for the contesting husband or wife if he or she had no independent sufficient income. I therefore, see no reason why the words “wife” or “husband” used in Section 24 should not be interpreted so as to include a man and woman who have gone through a ceremony of a Hindu Marriage which would have been valid but for the provisions of Section 11 read with Clauses (i) of Section 5 of the Hindu Marriage Act. These words have been used as convenient terms to refer the parties who have gone through a ceremony of marriage whether or not that marriage is 1

Ajay Ahuja vs. Manju Ahuja, II (2000) DMC 267 MP.

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valid or subsisting, just as the word “marriage” has been used in the Act to include a purported marriage which is void ab initio. 1

Distinction with Section 125 Criminal Procedure Code The proceedings under Section 125 Cr.P.C. are quite independent proceedings, even if she has been allowed maintenance pendente lite under Section 24 of Hindu Marriage Act. The maintenance allowance under Section 24 is for a temporary period. It is true that the Magistrate while passing an order may give such direction so that the amount warded by the Civil Court under Section 24 of the Hindu Marriage Act may be adjusted, during such period for which the maintenance allowance so awarded under Section 24 subsists. The provisions of Section 24 of the Hindu Marriage Act cannot override the provisions of Section 125, Cr.P.C. Section 24 of Hindu Marriage Act is for a period during which the matrimonial proceedings are pending in the Civil Court, whereas the allowance which is awarded by the Judicial Magistrate under Section 125, Cr.P.C. is not for a limited period, but is for a period during which the wife or other dependents of the husband are neglected by him and the wife refuses to live with her husband. 2

Duration of payment The marginal note of the section is very significant. It is “maintenance pendente lite and expenses of proceedings”. The section expressly says that the order of maintenance which the Judge makes under Section 24 of the Act is to last only for the period of the proceedings. The words “where in any proceedings under this Act” and the phrase “during the proceedings” clearly show that it is a temporary order the lite or which is coterminous with the proceedings. If there is no proceeding before the Judge, Section 24 cannot be invoked. The question is what is the meaning of term “proceedings” as used in Section 24. 3 Section 30 of J&K Hindu Marriage Act is a facsimile of Section 24 of the 1955 Act. This section makes maintenance payable to the wife or the husband as the case may be, during the proceeding, without further specifying the point of time during such proceeding from which the same is payable. Obviously, therefore, it does not empower the Court to grant maintenance either before the commencement of the proceeding, or after the same has ended. There is no warrant for the proposition that 1

2 3

Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC 221 Bombay. Pushpa Devi vs. Anup Singh, I (1985) DMC 175 All. Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984 Marriage LJ 316: AIR 1984 Delhi 320.

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proceeding in a suit commences only from the stage contemplated by Order 13. On the other hand, it commences with the filing of the plaint. On the plaint being filed, summons is issued to the defendant, who on its service appears in the Court and files his written statement. After the parties have filed their pleadings, the Court for the first time proceeds to apply its mind to the controversy raised in the suit. This controversy is then reduced to the form of distinct issues, which are framed by the Court, not only from the allegations made by them in their pleadings, but also from the allegations made by the parties on oath, and the contents of the documents produced by them. That is one of the reasons why production of documents is terms of Order 13 is insisted on or before this stage, which is called first hearing; the other reason being preventing production of fabricated documents. Then comes the next stage in the proceeding. The parties are asked to lead evidence in support of their respective cases. After they have let it, the Court proceeds to hear arguments and give its judgment in the case. This is the last stage in the proceedings, and last hearing in the suit. It is, therefore, obvious that proceeding in a suit does not commence on the first hearing, rather the first hearing is one of the various stages in that proceeding, which starts as soon as the plaint is filed in the Court. That apart, the word proceeding in Section 30 has to be given the same meaning, even keeping in view its intent and scope. The object behind the enactment is obviously two fold; firstly, to prevent vagrancy resulting from strained relations between the husband and wife; and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money. That is why Courts have always insisted that whenever an application is made under Section 30, it must be disposed of before any further steps are taken in the main case. They have been gone to the extent of holding that the Court in exercise of its inherent powers should stay further proceedings in the main petition till the order passed by it granting maintenance pendente lite or litigation expenses is complied with by the opposite party. 1 The words “During the proceedings” in Section 24 of Hindu Marriage Act, 1955 may in the first flush show that the party is entitled to claim maintenance only during the pendency of the proceedings, but on a close scrutiny these words clearly apply not only to the proceedings before the trial court but also during the pendency of proceedings in appeal as well as during the period between the termination of proceedings in the trial court and filing of appeal. The appeal is only continuation of the suit of proceedings in the trial court, without there 1

Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.

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being a suit or proceedings in the trial court there cannot be an appeal, therefore the proceedings in the appeal being continuation of the proceedings, the party is entitled to claim maintenance during the period between the date of the decree and the date of filling of the appeal. Merely because the party is unable to file an appeal within a particular period and that too after deducting the time for obtaining the copies, it does not mean that the party is not entitled to claim maintenance during that period. If this interpretation is accepted, it would be defeating the purpose of the provisions enabling a party to claim interim maintenance pending proceedings under this Act. ‘Proceedings’ means proceedings under the Act and it is referable to the Act only. 1 It is the legal obligation of the husband to maintain his wife. When the law provides for pendente lite maintenance it does not mean that the maintenance amount is to be paid only during the continuation of the proceeding. The general duty of maintaining wife, particularly when she has no means of her livelihood is merely re-emphasized by such a provision by pendente lite maintenance. Therefore, even for the period of pendency of appeal the husband is bound to pay the maintenance. Even otherwise the appeal is a continuation of the original proceeding and hence the husband is liable to pay the maintenance for the period. 2

Duty of husband A person is bound to maintain his wife is she if unable to maintain herself. In cases of desertion or abandonment a wife may seek maintenance allowance from the Court, but so long as that has not been granted she will definitely try to earn livelihood for her sustenance. It appears that Vidhyabai was forced to work as she was not being maintained by her husband. It also appears that learned Sessions Judge has taken into consideration this fact also and that is why lesser amount has been granted in her favour. This is also not but of place to mention here that while granting maintenance allowance if it is found that a person seeking such allowance is having some income & that is not sufficient, the person who is liable to maintain can be directed to compensate to the extent of insufficiency. 3

1 2

3

M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP). Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam Chaturvedi, II (1984) DMC 53 Delhi. Kailash vs. Vidhyabai, I (1993) DMC 594 MP.

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Effect of interim maintenance The fact that the non-applicant wife did not take any step against the impugned order cannot by itself lead to a conclusion that Rs. 100/per month was a sufficient amount for her maintenance. There can be many reason for her not taking any step in that behalf. The question of determination of maintenance pendente lite apart from evidence is not wholly but to a greater expend depend upon some fair approximation. 1

Effect of non payment on appeal In case the defaulting party happen to be the petitioner or the appellant the court may pass an order staying further proceedings till the order passed under Section 24 is complied and if the default is persistent it may dismiss the petition or appeal. In cases where the defaulting party is the respondent the court may refuse to hear it till the order passed under Section 24 of the Act is duly complied and may strike off the defence of the defaulting party. But the appellate court would not be justified in allowing the appeal on the ground that the respondent has failed to comply with the order passed under Section 24 of the Act. For the purpose of allowing the appeal the appellate court has to set aside the judgment of the court below and this can be done only if the appellate court reverses the findings recorded by the trial court. In view of the non-compliance of the order passed under Section 24 of the Act by the respondent the appellate court may refuse to hear the respondent and may proceed to hear the appeal ex parte and allow the appeal if the appellate court is satisfied that the judgment of the lower court cannot be sustained. But the appellant cannot ask for the appeal being allowed only because the respondent has failed to comply with the order passed under Section 24 of the Act. 2 In one case the original petition for the grant of a decree for divorce was filed by the wife herself which was dismissed by the trial Court on merits. In the appeal filed by her, she moved the application under Section 24 of the Act, which was allowed, but the husband did not pay the maintenance as ordered. It was held that even if his defence is struck off the appeal could not be allowed on that ground alone unless the Court is satisfied on merits of the claim made by the wife in her divorce petition. It was further held that the position would have been different if the original petition was filed by the husband and the same was either allowed or dismissed and the appeal was filed by either party who was not complying with court order therein. In case, court order

1 2

Mangli Lal vs. Mangibai, II (1987) DMC 172 MP. Kanta Choudhary vs. Rajendra Choudhary, I (1983) DMC 313 Raj.

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under Section 24 of the Act, was not complied with, by the husband, the appeal filed by him could be dismissed by the court, but since the original petition was filed by the wife and the same was dismissed by the trial court, in appeal it could not be allowed simply on the ground that no maintenance was paid by the husband. 1

Effect of operation of Hindu Adoptions & Maintenance Act The Hindu Adoptions & Maintenance Act, 1956 is retrospective is operation to the extent that it applies to pending litigations. It was consequently held that the plaintiff is entitled to maintenance, though she is living separately, and separate residence from the date on which the Hindu Adoptions & Maintenance Act, 1956 came into force, that is w.e.f. 25-12-1956. 2

Enforcement of order No doubt, wife can file a petition under O. 21, R. 37, Civil Procedure Code, 1908 for the recovery of this amount and the husband can be hauled up under the Contempt of Court also for disobedience of the aforesaid Court’s order, but Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time-consuming execution proceedings for realising this amount. The conduct of the husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defence can be struck out. 3 In order to obtain the enforcement of the order passed under Section 24 of the Act through the process of execution, the parties would be required to wait, in certain cases, till a number of years. The question 1

2 3

Sukhwinder Kaur vs. Harnek Singh, AIR 1988 P&H 208: (1988) 24 Reports 51: (1988) 1 Hindu LR 432: (1988) 1 DMC 476: (1988) 1 Cur LJ (C & Cri) 151: 1988 Marriage LJ 424. K.A. Singh vs. A. Ningoi, AIR 1965 Manipur 10. Bani W/o Parkash Singh vs. Parkash Singh, AIR 1996 P&H 175: See also Swarno Devi vs. Piara Ram, 1975 Hindu LR 15: Gurdev Kaur vs. Dalip Singh, 1980 Hindu LR 240: Smt. Surinder Kaur vs. Baldev Singh, 1980 Hindu LR 514: Sheela Devi vs. Madan Lal 1981 Hindu LR 126: Sumarti Devi vs. Jai Parkash, 1985 (1) Hindu LR 84: 1996 (2) Civil Court C 26: 1996 (1) Hindu LR 698: 1996 Marri LJ 549: ILR 1997 (1) P&H 118: 1996 (113) Pun LR 219: 1996 (2) RRR 120: 1996 (2) LJR 416: 1996 (3) ICC 114.

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is whether this particular procedure would enhance the object of the Act. Matrimonial proceedings by their very nature are expected to the expeditious because there would be absolutely no point in giving redress to a party in matrimonial proceedings after a number of years which would not stop the parties ageing. Asking a party to the matrimonial proceeding, to take resort to execution proceedings under Section 28 for the enforcement of order of interim alimony or expenses pendente lite, would be obviously resulting in frustration of justice. 1 The same can be said as regards the starting of contempt proceedings, because, contempt proceedings also are likely to take sufficiently long time for their culmination and during that time the original petition would be required to be stayed. Even thereafter it is doubtful whether in contempt proceedings the amount ordered to be paid under Section 24 of the Act would be paid or not. 2 Section 24 of the Act enables the court to pass an order directing payment of maintenance pendente lite and expenses of proceedings by one spouse to the other. Such an order is enforceable as a decree under Section 28-A of the Act. Since the aforesaid mode of enforcement may not, prove effective so as to enable the party in whose favour the order has been passed to avail the benefits of the said order during the pendency of the proceedings, the court in exercise of its inherent powers, can pass an appropriate order for securing the compliance with an order passed under Section 24 by the defaulting party. In case the defaulting party happen to be the petitioner or the appellant the court may pass an order staying further proceedings till the order passed under Section 24 is complied and if the default is persistent it may dismiss the petition or appeal. In cases where the defaulting party is the respondent the court may refuse to hear it till the order passed under Section 24 of the Act is duly complied and may strike off the defence of the defaulting party. But the appellate court would not be justified in allowing the appeal on the ground that the respondent has failed to comply with the order passed under Section 24 of the Act. For the purpose of allowing the appeal the appellate court has to set aside the judgment of the court below and this can be done only if the appellate court reverses the findings recorded by the trial court. In view of the non-compliance of the order passed under Section 24 of the Act by the respondent the appellate court may refuse to hear the respondent and may proceed to hear the appeal ex parte and allow the appeal if the appellate court is satisfied that the judgment of 1

2

Jai Singh vs. Khimi Bhiklu, AIR 1978 HP 45 (FB): 1978 Sim LC 227: ILR (1978) Him Pra 83. Jai Singh vs. Khimi Bhiklu, ibid.

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the lower court cannot be sustained. But the appellant cannot ask for the appeal being allowed only because the respondent has failed to comply with the order passed under Section 24 of the Act. 1

Enhancement of amount of maintenance When the husband was getting just about Rs. 675/-per month by way of salary, she had been allowed a maintenance amounting to a little less than 1/4 th of his salary. Later he was getting a salary of more than Rs. 2,000/-per month. Thus the amount if maintenance fixed at the rate of Rs. 350/-by the learned Additional Session Judge was considerably less than the 1/4 th of the salary, It was held that there could not be any dispute that cost of living had increased considerably over the past few years and it would be impossible for wife to survive with a meagre sum of Rs. 350/- per month by way of maintenance. Viewed in this perspective, the amount of maintenance viz., Rs. 350/- fixed by the Additional Session Judge was held to be inadequate. Accordingly the amount was enhanced to Rs.500/- per month. 2

Entitlement of children A bare perusal of Section 24 of the Act reveals that it does not envisage the grant of interim maintenance allowance of the minor children. Section 26 of the Act specifically deals with the custody of children, their maintenance and education. The ambit and scope of Section 24 and 26 of the Hindu Marriage Act are quite different. Section 26 specifically provide determination by the Court with regard to the custody, maintenance and education of minor children, consistently with their wishes. When admittedly no such enquiry was conducted by the Court, the grant of maintenance for the upkeep of children under Section 24 of the Hindu Marriage Act is wholly unwarranted. 3 Similarly the view of Orissa High Court is also that the award of maintenance for a child is not within the purview of S. 24 of the Hindu Marriage Act, 1955. 4 However the Madhya Pradesh High Court has held that the need of the child is as much the need of the mother, because a mother is not expected to neglect the need of the child and is on the contrary expected to meet the need of the child even at the expenses of her own maintenance. Therefore while granting maintenance under Section 24 of

1 2 3 4

Kanta Choudhary vs. Rajendra Choudhary, I (1983) DMC 313 Raj. Gurcharan Singh vs. Hardev Kaur, I (1993) DMC 213 P&H. Satya Pal vs. Sona Devi, II (1992) DMC 630 P&H. Purusottam Das Agarwala vs Puspa Devi, AIR 1982 Orissa 270.

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the Hindu Marriage Act, 1955 to a wife not only her own need for maintenance of herself would be considered but if she had a child to look after, need of the child shall also be taken into account. 1 Simply because the child is also living with the mother, it cannot be said that she has to be deprived of the maintenance. The father is bound to maintain his daughter wherever she is. 2 Section 24 of Hindu Marriage Act, 1955 makes provision for granting maintenance pendente lite to a party who has no independent income sufficient for his or her support. This section does not provide for granting maintenance for the children. Section 26 of the said Act provided for interim orders from time to time as also for making provision in the decree with regard to custody, maintenance and education of minor children consistently with their wishes. Section 26, therefore, empowered the Court to provide for the maintenance of minor children. It provided for maintenance both pendente lite as also after the passing of the decree. Therefore the order granting separate maintenance to each of the three adult children had clearly traversed beyond the scope of Section 24 and Section 26 of the said Act. 3

Filing of written statement The proceeding under Section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of Section 24 of the Act permit grant of maintenance pendente lite, but also it permits the Court to make an order with regard to necessary expenses of the proceedings. In a given case without provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouses even a file a written statement. The trial Court, which is moved by filing the application is bound to decide the application with regard the maintenance and the expenses. 4 The wife is not bound to file the written statement before moving the court for grant of maintenance pendente lite and expenses of the proceedings. The whole object of awarding expenses of proceedings is to enable the party to fight the case. 5 1 2 3

4

5

Rajendra Kumar vs. Savitribai, I (1992) DMC 567 MP. Sulaxmi Bai vs. Karre Sridhar, I (1993) DMC 473 AP. Kartarchand Dulliram Jain vs. Taravati Kartarchand Jai, I (1982) DMC 97 Bombay. Meena @ Pratibha Deshpande vs. Prakash Shriniwas Deshpande, II (1983) DMC 227 Bombay: AIR 1983 Bom 409: 1983 Mah LJ 821: 1983 Hindu LR 692. Jagdish vs. Hari Singh, II (1984) DMC 366 Delhi.

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Law of Maintenance

The Calcutta High Court has also held that it is not open to the learned Judge under the statute, as it stands, or, under the relevant law, to impose a condition on an applicant for alimony that her said application will not be heard unless she files her written statement. The statute nowhere permits such a course, which would be opposed to the equities of the instant case. 1

Form of order An order which does not contain either the facts or the grounds on which it is based is no order in the eye of law. 2 When the order is not supported by any reason and does not discuss the pros and cons of the rival versions of the parties relating to the quantum of income of the husband, the same is liable to be set aside. 3

Forum of appeal In respect of Madras City Civil Court it has been held that under section 4 of the Madras City Civil Court Act, the City Civil Court shall consist of the Principal Judge and such number of Additional or Assistant Judges as the State Government may from time to time appoint, and subject to the provisions of Section 15, each of the Judges may exercise all or any of the powers conferred on the court by this Act or any other law for the time being in force. By virtue of this provision, even without a notification by the Government, any Judge of the City Civil Court, whether he be the Principal Judge or the Additional Judges or the Assistant Judge, would be competent to entertain an application under the Hindu Marriage Act. But the right of appeal from the order passed by a Judge of the City Civil Court would be governed by Section 15 of the Act. Had the petition been disposed of either by the Principles Judge of the City Civil Court, or by the Additional Judge there of, an appeal would lie straightway to the High Court. if, on the other hand, it is disposed of in this case, by an Assistant Judge of the City Civil Court an appeal shall lie only to the Principles Judge, especially in a proceeding where the amount or value of the subject-matter does not exceed Rs. 5000. 4

1 2

3 4

Latika Ghosh vs. Nirmal Kumar Ghosh, AIR 1968 Calcutta 68:. Shakuntala vs. Amar Nath, AIR 1978 P&H 32: 79 Pun LR 405(1): 1977 Hindu LR 658. Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383. B. Balaji Singh vs. B. Raj Kumari, AIR 1972 Madras 278: 85 Mad LW 16: (1972) 2 Mad LJ 53.

Maintenance pendente lite—Jurisdiction of Family Court

87

Grant in Revision The Hindu Marriage Act, 1955 does not directly provide for an appeal or a revision from orders passed in proceedings under it. Section 21 of the Act provides that subject to the other provisions contained in the Act and of the rules made by the High Court all proceedings under the Act shall be regulated, as far as may be, by the Code of Criminal Procedure, 1908. Section 28 provides that all decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force. Appeals from decrees and orders made under the Act lie under the Code of Civil Procedure. Likewise, revisions also lie against orders made in proceedings under the Act under the Code of Civil Procedure. It is not disputed and there is good authority for the same that relief under Section 24 can be granted in an appeal from a decrees or order passed under the Act. I can see no reason why then relief under Section 24 cannot be granted in a revision against an order passed in a proceeding under the Act. The words “in any proceeding under this Act” have been used in a wider sense to include all proceedings arising out of orders passed in petitioner filed under the Act. To hold otherwise would defeat the very purpose of Section 24. Therefore, it is competent for High Court to grant relief on an application under Section 24 even in a revision filed under Section 115, Civil Procedure Code, against an order passed in proceedings under the Act. 1

Independent income of wife The jurisdiction to pass an order under Section 24 of the Hindu Marriage Act, 1955 arises as soon as any proceedings are instituted under the Act. The condition for the exercise of jurisdiction under this section is that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition is satisfied, the court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and/or monthly maintenance of such sum as may be found reasonable. Under the provision the sufficiency of independent income is the basis for holding whether it is sufficient for her maintenance and expenses. 2

1 2

Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110. Arjun Dev vs. Jai Kumar, II (1983) DMC 387 Delhi.

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Jurisdiction of Family Court The jurisdiction exercised by the Family Court under Section 7(2)(a) of the Family Court Act is the one exercisable by a Judicial Magistrate I Class under Criminal Procedure Code. Wherever a Family Court is established for any area, the jurisdiction of Judicial Magistrate I Class having territorial jurisdiction over that area ceases and the Family Court is entitled to exercise the said jurisdiction. No doubt under-Section 7(2)(a) of the Family Court Act, what is exercised by the Family Court is the jurisdiction exercisable by the Magistrate under Chapter IX of the Code of Criminal Procedure, 1973. Nevertheless it is not a Criminal Court. It is a Civil Court. There is an inherent jurisdiction in a Civil Court to pass ex parte orders and ex parte interim orders in aid of the main relief in order to protect the interest of the party who approaches the Court and/or to protect the subject matter of the suit, in order to ensure that the relief, which the party will be granted in the suit or a proceeding in not rendered infructuous. Thus in aid of the final relief, an interim ex parte order can granted. That it is so cannot at all be doubted. In the absence of such power the very jurisdiction to pass final order in many cases would be rendered ineffective. When the Court has jurisdiction to pass final order, the power to pass interim order stems from the very power to pass final order. Such a power is necessarily concomitant of the power to order maintenance. In the absence of such a power jurisdiction will not be meaningful and effective. A person approaches the Court for maintenance because he or she as the case may be is not in a position to maintain himself or herself. If such a person is required or made to wait for a considerable time and he has to be told only after a lapse of considerable period that he or she is entitled to certain amount of maintenance, how such a person could carry and live to know the decision of the Court which may take place in some cases several years. Such a situation would either result in miscarriage of justice of failure of justice. An interim order can also be modified, dissolved or vacated after hearing the respondent. Even the final order can be altered in the circumstances stated in Section 127 of the Criminal Procedure Code. It is not possible to hold that the Court has no power to revise the interim order. That being the position, the fact that Section 125 of the Criminal Procedure Code does not specifically provide for revision of the interim order, cannot be of any relevance. Further when it is the Court, whether Criminal or Civil, that exercises the jurisdiction, every details of the procedure need not be provided. The procedure consistent with justice and actuated by exigencies of the situation can he adopted even if there is no specific provision is provided in the statute governing or conferring the jurisdiction to award maintenance. In addition to this it is not the Criminal Court that exercises the

Maintenance pendente lite—Letters patent appeal

89

jurisdiction. It is a Civil Court that exercise the jurisdiction exercisable by the Court of the Judicial Magistrate I Class. As a matter of fact, Chapter IX of the Criminal Procedure Code does not relate to any criminal matter and it is certainly not punitive. It deals with civil liabilities only. In order to ensure expeditious decision so that a person in need of maintenance is able to get it within a short period, the subject of maintenance of wives, children and parents in included in the Criminal Procedure Code. The Judicial Magistrate I Class and the Family Court exercising jurisdiction under Section 125 of the Criminal Procedure Code in the light of the provisions contained in Section 7(2)(a) of the Family Court Act have jurisdiction to pass an order directing payment of maintenance pending final disposal of the petition filed under Section 125 of Criminal Procedure Code. 1

Jurisdictional issue The wife is entitled to have her application under Section 24 for award of expenses to be considered before the issue of jurisdiction is decided. She is entitled to have her expenses for the hearing on the question of jurisdiction. 2

Justification for living separately Whether the conduct of the husband in entering into an agreement with the purchasers of the house directing them to get his wife evicted from the house would amount to “a cause justifying her living separate.” The husband ought not to have exposed his wife to an action by third parties. His thoughtless action has inflicted a deep, wound in her. That is a justifying cause for the wife to live separately from him. She had also expressed before the court an apprehension that she would be physically harmed if she lives with her husband. Hence, on the facts of this case, it was held that the wife is entitled to live separately and claim maintenance from her husband. 3

Letters patent appeal The view taken by the Bombay High Court is that the maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955, raises controversy independently of the suit and decision thereon concludes controversy finally between parties and as such letters patent appeal is maintainable. 4

1 2 3 4

G.L. Jagadish vs. Shamantha Kumari, I (1990) DMC 552 Kar. Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110. Meera Nireshwalia vs. Nireshwalia, AIR 1994 Madras 168 (DB). Dinesh vs. Usha, AIR 1979 Bom. 173

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Law of Maintenance

Litigation Expenses Normally, expenses of the proceeding would include remuneration to the Lawyer, court-fees, stamp and paper, clerical expenses, cost of stationeries, expenses to be incurred for journey from the place of residence for instructing the lawyer and attending the court for summoning the witnesses to depose in court and their expenses and for obtaining and proceeding and documents in support. Besides these normal expenses, there may be special nature of expenses which can also be considered on the availability of materials on record. But when no material is available on record, there is no scope for the trial court to arbitrarily fix the expenses of the proceeding. 1

Meaning of “Maintenance” Heading of Section 24 of the Hindu Marriage Act, 1955 is “Maintenance pendente lite and expenses of proceedings”. The section, however, does not use the word “maintenance”, but it appears that the words “support” and “maintenance” are synonymous. “Support” means “to provide money for a person to live on”, like “he supports a family” or “he supports his old mother”. Maintenance is “an act of meaning”, i.e. to support with money. For example, “he is too poor to maintain his family”. 2

Meaning of support Section 24 of Hindu Marriage Act, 1955 uses both terms, “Maintenance” in the margin and “Support” in the body of the section. The word “support” is doubtless one of the most elastic in the language. “Maintenance” means the act of maintaining, and denotes the regular supply of food, clothing and lodging, the provisions of the necessaries and the conveniences of life. These will in each case depend in part on the standing of the parties, their wealth and the environment to which they in their married state have been accustomed, as every case will be different and no case may be decided except upon its particular facts. 3

Modification of order Section 24 of the Hindu Marriage Act, 1955 vests a wide discretion in a Court in the matter of fixation of pendente lite 1

2 3

Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa; Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984) DMC 11 Bombay; V. Chandra vs. S. Venugopal, II (1984) DMC 72 Kerala. Pardeep Kumar Kapoor vs. shaailja Kapoor, AIR 1989 Delhi 10. Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984 Marriage LJ 316: AIR 1984 Delhi 320.

Maintenance pendente lite—Multiple remedies

91

maintenance and costs of the proceedings. The discretion, however, has to be exercised judicially. If there is no enabling provision in the Act for changing such an order by the Court, there is at the same time no disabling provisions either and, therefore, the Court can in appropriate case exercise its inherent powers to vary an order of maintenance provided there is a change in circumstances justifying variation of the order. If that were not so, it may lead to manifest injustice in some cases, for example, at the time of granting of maintenance the other spouse may be having a substantial income and after sometime if that income were to be lost by change of fortune or on account of some accidental causes then the continuance of the same maintenance may result in hardship to the other spouse who is to pay the maintenance. Therefore in an appropriate case the Court should be able to exercise its inherent powers under Section 151 Civil Procedure Code. 1 An application under Section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses was ordered to be listed for hearing alongwith the main case. When there is no averment, least the proof, in the application made by her that the income of the husband-respondent increased after she was allowed maintenance by the Trial Court, she cannot get beyond what was granted to her and the children by the Trial Court. 2

Multiple remedies An order under Section 125 of the Code for maintenance and an order under Section 24 of the Hindu Marriage Act, are distinct orders in separate proceedings. It is not open for Court under Section 125 to grant set off any amount paid by the husband to the wife or deposited in any Court against the substantive order passed under Section 125 of the Code. Order under Section 24 of the Hindu Marriage Act is for interim alimony which would terminate on termination of the proceedings. Order under Section 125 of the Code is substantive order which can be terminated or altered only in the light of the provisions under Section 125(3) or under Section 127 of the Code. Mere passing of an order under Section 24 of the Hindu Marriage Act for interim alimony would not operate as set off against the order of maintenance under Section 125 of the Code. There can be no difficulty on the part of the wife for pursuing remedies under both the provision simultaneously.

1

2

Devki vs. Purshotam Kewalia, AIR 1973 Rajasthan 2: 1972 WLN 750. Parveen Bala @ Veena vs. Jagdish Rai, I (1994) DMC 319 P&H.

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The nature of the respective case in both these proceedings are different. Under Section 24 of the Hindu Marriage Act, the concerned spouse has only to show that or she has no independent source of income sufficient for his or her maintenance. Once this is shown, interim alimony can be awarded, keeping in mind the economic status and conditions of the respective parties. While in so far as the provision under Section 125 of the Code are concerned only one spouse, namely, the wife would be entitled to maintenance. She can be awarded maintenance if she can show that she no independent sources of income of her own. Of course, she has to show that she is refused and neglected maintenance by her husband and her husband has sufficient means to maintain her. In the facts and circumstances both the proceedings could be pursued by the wife and there is no ban or bar in any one of the provisions unlike provision under Section 10 of the Civil Procedure Code, whereby, subsequent proceedings can be stayed if conditions under Section 10 are established. 1

Necessity of affidavit Omission to comply with the requirements of rules provided for presentation of plaints like absence of verification, does not affect jurisdiction of the Court. Therefore, absence of affidavit of the applicant in her application for interim maintenance does not affect the initial jurisdiction of the Court. With these observations the wife was grant further opportunity to regularize the matter by giving an affidavit in support of her application. 2

Necessity of reconciliation An order passed under Section 24 of the Hindu Marriage Act, 1955, could not be termed as illegal only because the court did not make any endeavour to bring about a reconciliation between the parties. The provision of Section 23(2) are not absolute in nature. While casting a duty upon the court to make every endeavour to bring about reconciliation between the parties a discretion is left to the Court, by the use of the qualifying phrase, ‘where it is possible to do consistently with the nature and circumstances of the case’. Similar provision is made in Order XXXII-A of Code of Civil Procedure for the suits relating to matters concerning family. An attempt to bring about a reconciliation is always laudable but failure to do so, before granting maintenance pendente lite, will not vitiate the order, passed under Section 24 of the 1

2

Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani, I (1993) DMC 544 Guj. Bhalu Naik vs. Hemo Naikant, AIR 1969 Orissa 236: 35 Cut LT 532.

Maintenance pendente lite—Object of Hindu Adoptions & Maintenance Act 93

Act. To say the least, Section 24 is independent of other provisions of the Act, and is not controlled by Section 23. The order passed under Section 24 is interim in nature and does not amount to final determination of the right or of the case. This incidental and interim direction to pay maintenance pendente lite is not a final and comprehensive adjudication of the rights of the parties within the contemplation of Section 23 of the Act. 1

Necessity to grant maintenance The dismissal of the wife’s application under Section 24 is not justified and so long as that application was not decided, the suit could not proceed. The matrimonial jurisdiction is in certain matters different from ordinary civil jurisdiction. 2

Non working husband In one case where husband claimed maintenance from wife and it was pleaded that the husband was not working it was held that the husband was mentally and physically well bodied person. He also had a skill of a particular business. There was no handicap for him to earn bare minimum to support his livelihood. Merely because his business is closed, it cannot be held that he has no source to earn. Since the wife is in the employment, the husband cannot make himself wholly dependent on her income through a device of Section 24 of the Act. In absence of any handicap or impediment to earn, to grant maintenance to such able bodied person equipped with skill would promote idleness. It is opposed to spirit of Section 24 of the Act. The trial Court was wholly without justification in awarding maintenance in favour of the nonworking husband. 3

Non-compliance The effect of non-compliance of the order passed on the application under Section 24 of the Hindu Marriage Act for the grant of maintenance pendente lite is that the defence is to be struck off. 4

1

2 3 4

Dilipbhai Chhanganlal Patel vs. State of Maharashtra, AIR 1983 Bombay 128: 1983 ACJ 192. Ram Rati vs. Mata Prasad, I (1983) DMC 376 All. Kanchan vs. Kamalendra Kamalakar, I (1993) DMC 288 Bom. Sadhana Deepak Naik vs. Deepak Laxman Naik, I (1993) DMC 112 Bom.

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Law of Maintenance

Object of Hindu Adoptions & Maintenance Act These provisions have purported to give effect to trends of what is claimed to be progressive thought in this country of placing woman or a par with men in the matter of their marital rights. But divorce is not always an efficacious remedy, for the right to obtain it may be lost by laches, delay or condonation. The Legislature, evidently thought that it should be open to the wife to claim to live separately from her husband, in case he has got another wife living. Where, therefore, the wife does not want to seek divorce or, where she could not, by reason of some conduct on her part, obtain such divorce or where she only desires to live separately from her husband, she could by applying under Section 18(2) of Act 78 of 1958, claim from him maintenance and provision for separate residence. If that be the true principle behind Section 18(2) as indeed we conceive it to be, its operation cannot be restricted to marriage which took place subsequent to the year 1946. 1

Order under Criminal Procedure Code, 1973 In such case keeping in view the status of the parties, the income of the husband and the standard of life to which parties are used to it was held that the fixation of maintenance under the Code of Code Criminal Procedure, can be taken note of, for assessing the maintenance pendente lite under Section 24 but the same cannot be the sole basis as under the Criminal Procedure Code, maximum maintenance which can be allowed is Rs. 500/-. So the criminal Courts grant maintenance keeping in view the maximum limit of maintenance which can be granted in proceedings under Section 125 of the Code of Criminal Procedure can be treated as bar for granting higher amount. 2

Pendency of proceedings A proceeding under Order 9 Rule 13 of the Civil Procedure Code is a proceeding under the provisions of the Hindu Marriage Act if the proceeding is initiated for setting aside a decree obtained ex parte in a proceeding under the said Act. Accordingly, an application under Section 24 of the Hindu Marriage Act is maintainable in such a proceeding. If such an application is filed it is open to the Court to decide the same on merit but it cannot be held that such application cannot be disposed of

1

2

A. Annamai Mudaliar vs. Perumayee Ammal, AIR 1965 Madras 139 (DB): ILR (1964) 1 Mad 845: 77 Mad LW 548: (1965) 1 Mad LJ 122. Savita Aggarwal vs. R.C. Aggarwal, I (1991) DMC 18 P&H.

Maintenance pendente lite—Pendency of proceedings

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till the proceedings under Order 9 Rule 13 terminates and the decree is set aside. 1 This question was also considered with slightly different line of reasoning by Punjab and Haryana High Court 2 with following observations: ‘The challenge to the impugned order was founded upon the wholly untenable premises that an application under O. 9, R. 13 of the Code of Civil Procedure for setting aside an ex parte decree for divorce, could not be taken to be proceedings under the Act so as to extend to it the applicability of the provisions of Section 24 of the Act. The argument being that while seeking and obtaining a decree for divorce, be it ex parte or after contest, would be “proceedings” under the Act, an application for setting aside such a decree would be one under the Code of Civil Procedure and thus not one under the Act, and therefore, the provisions of Section 24 of the Act, would not be available in respect thereof. There is a patent fallacy in this contention inasmuch as, the provisions of the Code of Civil Procedure, in the Hindu Marriage Act, 1955, are there merely to regulate the proceedings therein and not as substantive law separate and distinct from it, as would be apparent from a plain reading of Section 21 of the Act. Further, the object and rationale of Section 24 of the Hindu Marriage Act, 1955 is to provide against lack of financial means operating to the detriment of a party to proceedings under the Act. In other words, to obviate against the financial handicap of a party to the litigation. Seen from his angle too, the provisions of Section 24 of the Act cannot be construed to take an application for setting aside of an ex parte decree under the Act as outside the purview thereof. To hold otherwise, could mean grave prejudice to an innocent party against whom an ex parte decree has been wrongly passed inasmuch as lacking the financial means to challenge such an ex parte decree, it may be constrained to suffer it. Nothing could have been further from the intention of the legislature in this behalf.’ Section 21 of the Hindu Marriage Act, engrafts the relevant provisions of Code of Civil Procedure into the Act for regulating the procedure, and independently of Section 21 of the Civil Procedure Code would have no application. Therefore, though the procedure for setting aside the ex parte decree would be regulated by the Civil Procedure 1

2

Dipti Ghosh vs. Swapan Kumar Ghosh, I (1991) DMC 135 Calcutta. Madan lal vs. Meena, AIR 1988 P&H 31: (1986) 90 Pun LR 601: (1986) 2 Hindu LR 344: (1987) 3 Cur LJ (Civ & Cri) 505: ILR (1987) 2 P&H 102: 1988 Marriage LJ 341.

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Code it would only be a proceeding under the Act by virtue of Section 21 of the Act. 1 The court can grant maintenance pendente lite and litigation expenses in any proceedings under the Act. The proceedings in an application under Section 25 are proceedings under the Act. The object of enacting Section 24 is that an indigent spouse not suffer during the pendency of the proceedings because of his/her poverty. In case it is held that a spouse cannot make an application under Section 24 in proceedings under Section 25 of the Act, he/she may not be able to prosecute the proceedings under the latter section. The consequence may be that he/she may have to starve throughout the life. That could not be the intention of the Legislature. Therefore, a spouse can file application under Section 24 in proceedings under Section 25. 2 In view of the fact that the provision for permanent alimony is incidental to the granting of a decree for divorce etc. and the proceedings under Section 25 are in the nature of continuation of the main proceedings, it would be just to hold that proceedings under Section 25 are ‘proceedings under the Act’ in the context of the application of Section 24 thereto. 3 Any proceeding under this Act’ appearing in Section 24 will cover the proceedings under Section 25 thereof. Section 25 contemplates that an order for permanent alimony can be made at the time of the passing of any decree under the Act or any time thereafter. Now, if a spouse has to make an application after any decree under the Act has been passed and has no sufficient means of his own. Such spouse has to be provided for prosecuting the application for permanent alimony when the other spouse opposes any grant thereof. Any other construction will be narrow and will lead to frustration of the provision. 4

Postponement of Application The jurisdiction to pass an order under Section 24 of the Hindu Marriage Act, 1955 arises as soon as any proceedings are instituted

1

2

3

4

Hemaraj Shamrao Umredkar vs. Leela, AIR 1989 Bombay 146: (1988) 2 DMC 325: (1988) 2 Cur CC 488: (1988) 2 Hindu LR 583: (1988) Mat LR 315. Krishan Lal vs. Kamlesh Rani, AIR 1989 NOC 154 (P&H): 93 Pun LR 361. Chuni Lal Gulati vs. Krishana Rani, AIR 1983 P&H 241: 1983 Hindu LR 24. Yogeshwar Prasad vs. Jyoti Rani, AIR 1981 Delhi 99.

Maintenance pendente lite—Power of Appellate Court

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under the Act in the court and lasts so long as the proceedings are pending. The conditions circumscribing the exercise of jurisdiction are that the applicant should not have any independent income sufficient for her or his support or necessary expenses of the proceedings. If the said condition are satisfied, the Court has jurisdiction and power to order the opposite party to pay expenses of the proceedings and monthly maintenance of such sum as may be found reasonable by the court. This provision is wider and different from the provisions contained in Section 25 of the Act, which deals with permanent alimony and maintenance. The object of Section 24 of the Act is to provide a monthly income and expenses of the litigation to an indigent spouse to enable it to prosecute or defend the proceedings under the Act and the law sees that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lacks of funds. 1 Therefore when the question of facts between the parties are seriously disputed and it will take some time to be decided and in fact, this is a major issue disputing the marriage had been raised by the respondent which could, be decided along with the whole petition and the trial cannot take place piecemeal, it was held that even to fight out the aforesaid issue, the appellant is entitled to a decision of her application under Section 24 of the Act and the Court below had acted with material irregularity in postponing the orders on this application till the decision of the issue of the legality of the marriage which will virtually terminate the proceedings. 2

Power of Appellate Court A reading of Section 25 and 26 of the Hindu Marriage Act makes it abundantly clear that pending appeal, the Court has got power to make such interim orders and also make such provisions in the decree, with regard to the maintenance of the wife and children as well as for the education of the children and their expenses, without insisting on separate application. After the appeal is disposed of, at times on application by the party, similar directions or provisions in the decree can also me made. Thus, the maintenance granted earlier pending the appeal can be directed to be paid even after the disposal of the appeal, depending on the circumstances of the case, and the said direction can even form a part of the decree. 3 1

2 3

Arti Singh vs. Lt. Co. Kanwar Pal, AIR 1977 Delhi 76: 1976 Hindu LR 646: (1976) 12 Delhi LT 169: (1976) 78 Pun LR (D) 268. Arti Singh vs. Lt. Co. Kanwar Pal, ibid. Chigurupati Sambasiva Rao vs. Chigurupati Vijayalakshmi, 1994(1) CCC 458 (AP).

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Law of Maintenance

On the question of maintainability of application for maintenance during the appeal it was held that whatever way the problem is approached, the answer to the question must be in the affirmative. Firstly, in the words of the relevant sections of the Act, there is not only no bar of the maintainability of such an application but there are sufficient indications in support of it. Secondly, in the interest of broad justice between the parties, the Court has a discretion to continue the payment of the maintenance, during the pendency of the cause in appeal. When the appeal does not appear to be a vexatious one. Thirdly, the cause becomes pending as the husband appellant does not only not obey the decree of the Court below but seeks to stay the operation of the judgment and decree appealed against, as well as of all further proceedings for permanent alimony in the Court below. Fourthly, the relief in the nature of alimony is really a relief which is incidental to the passing of the decree. Fifthly, for the present purpose a decree for nullity stands on the same footing as a decree for dissolution of marriage. Sixthly and lastly, the respondent does not become a maiden or another man’s wife so long the appeal remains pending. 1 The words “During the proceedings” in Section 24 of Hindu Marriage Act, 1955 may in the first flush show that the party is entitled to claim maintenance only during the pendency of the proceedings, but on a close scrutiny these words clearly apply not only to the proceedings before the trial court but also during the pendency of proceedings in appeal as well as during the period between the termination of proceedings in the trial court and filing of appeal. The appeal is only continuation of the suit of proceedings in the trial court, without there being a suit or proceedings in the trial court there cannot be an appeal, therefore the proceedings in the appeal being continuation of the proceedings, the party is entitled to claim maintenance during the period between the date of the decree and the date of filling of the appeal. Merely because the party is unable to file an appeal within a particular period and that too after deducting the time for obtaining the copies, it does not mean that the party is not entitled to claim maintenance during that period. If this interpretation is accepted, it would be defeating the purpose of the provisions enabling a party to claim interim maintenance pending proceedings under this Act. ‘Proceedings’ means proceedings under the Act and it is referable to the Act only. 2 It is the legal obligation of the husband to maintain his wife. When the law provides for pendente lite maintenance it does not mean 1 2

Arya Kumar Bal vs. Ila Bal, AIR 1968 Calcutta 276. M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP).

Maintenance pendente lite—Power of Appellate Court

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that the maintenance amount is to be paid only during the continuation of the proceeding. The general duty of maintaining wife, particularly when she has no means of her livelihood is merely re-emphasized by such a provision by pendente lite maintenance. Therefore, even for the period of pendency of appeal the husband is bound to pay the maintenance. Even otherwise the appeal is a continuation of the original proceeding and hence the husband is liable to pay the maintenance for the period. 1 The terms ‘proceeding’ and ‘court’ are not defined in the section. Those terms, would, having regard to the object of the enactment and the setting in which they are employed, take in respectively the appeal and the appellate court. That a petition for interim maintenance could be filed in the appellate court was the view taken by the Rajasthan High Court in Mukan Kanwar vs. Ajit Chand. 2 Another decision of the Himachal Pradesh High Court adopting that view is reported as Smt. Sarve Devi vs. Lakashmi 3 wherein the court had granted interim maintenance during the pendency of appeal before Court. Thus section 24 would permit the appellate Court to award maintenance to a wife or minor children during the pendente lite of the appeal from an order in proceedings initiated under the Act. 4 Section 30, as its language suggests, empowers the Court to grant maintenance and litigation expenses during the pendency of the proceeding in that Court. It does not restrict its application to the proceeding before the trial Court alone, but applies with equal force to the proceeding before the appellate Court as well. It, however, leaves no room for doubt that the Court empowered to grant maintenance is empowered to do so for that period only during which proceedings in the main case remain pending before it, and not for the period subsequent thereto. The order of the trial Court passed by it under Section 30 cannot, therefore, remain effective, after the main proceeding before it comes to an end. If the aggrieved party to the main petition challenges the trial Court’s decree or order in appeal, a fresh application under Section 30 by the party seeking relief under that Section, has to be made by it to the appellate Court. The order passed by the trial Court under this Section cannot survive the decision of the main petition by it on the principle that an appeal is merely a continuation of the original lis, meant for its 1

2 3 4

Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam Chaturvedi, II (1984) DMC 53 Delhi. AIR 1961 Rajasthan 51. AIR 1984 NOC 138 (HP). Thankamma vs. Kuttan, II (1984) DMC 440, Kerala.

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rehearing. The object behind the aforesaid principle is two fold: firstly, to see whether the judgment given by the trial court was right when it was given: and secondly, to mould the relief by taking into account the events that have happened after the judgment came to be passed by the trial Court. A proceeding under Section 30 is an independent proceeding, which has nothing to do with the merits of the main case. Correctness of the judgment of the trial Court in the main case with reference to the point of time when it was passed cannot be, therefore, determined in appeal in the light of the findings recorded by it in the application under Section 30. Nor has any subsequent change in the financial position of the parties anything to do with the moulding of the relief in the main petition come to an end, right of the party to enforce the order passed in its favour under S. 30 also ceases, in the sense, that it cannot claim maintenance for a period posterior to the decision of the main petition. This, however, does not mean that even if proceedings in the main petition have come to an end, the party in whose favour an order under Section 30 have been passed, cannot execute the same for recovery of the amount due till the date of the final decision of the main petition. Nor does the decision of the main petition take away the power of the Court to dispose of on merits the application made to it under Section 30 during the pendency of the main proceeding. 1 There is amply authority for the aforesaid view. 2

Power of Court The ground of maintenance pendente lite and expenses of the proceeding does not depend on merits of the case nor the jurisdiction of the Court is controlled by the defences raised by the respondent which is the substantive matter before the Court. It is, however, circumscribed only of the condition laid down in Section 24 of Hindu Marriage Act, 1955 itself as regards the sufficiency or otherwise, of the income of the party applying for the benefit of Section 24. In a case where the factum of marriage is acknowledgement or proved the allowance necessarily follows subject to the discretion of the Court in the matter having regard to the means of the parties. The subsequent dismissal of the substantive or main petition does not absolve a party from the liability already incurred under an order made under Section 24. Normally, the Court would not be in a position to judge the merits of the rival contentions of the parties when deciding an application for maintenance pendente lite and would not allow its discretion 1 2

Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K. Mukan Kanwar vs. Ajit Chand, AIR 1961 Raj 51; Tarlochan Singh vs. Smt. Mohinder Kaur; AIR 1963 Pun. 249 Amrik Singh vs. Smt. Narinder Kaur; AIR 1979 Punj & Har. 211. and B.M. Muniratnam Naidu vs. Shantamma, AIR 1971 Mys. 25.

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to be fettered by the nature of the allegations made by the parties in their respective pleading and, therefore, the Court is not supposed to examine the merits and demerits of the main petition while deciding the application under Section 24. The question, therefore, that the petition under Section 9 of the Act is maintainable or not or the question, whether the Court has jurisdiction to entertain and try the same, would not be a determining factor in passing an order under Section 24. If the wife is made to defend herself in any proceedings under the Act, for example, restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriage, the benefit of provisions of Section 24 may be extended if the wife had no independent income sufficient for her support and the necessary expenses of the proceedings, irrespective of the fact that the Court ultimately found that it had no jurisdiction to entertain and try the substantive petition which may ultimately result a dismissal on that Court.1 In one case the proceedings started on an application under Section 25 of the Act and not by a suit where under maintenance could be claimed in accordance with the provisions of the Hindu Adoptions & Maintenance Act, 1956. It was held that nevertheless the discretion under Section 25 of the Act vested in a Court which has awarded a decree of conjugal rights or any other decree under the Act is wider. Such a discretion is not controlled by the provisions of the Hindu Adoptions & Maintenance Act, 1956. Nonetheless the principles governing the award of maintenance enshrined in Section 23 of the Hindu Adoptions & Maintenance Act, 1956 could usefully be kept in mind by the Court in dealing with an application under Section 25 of the Act. 2

Procedure for disposal of application It is noteworthy that the main petition under Section 10 of the Indian Divorce Act is not required to be supported by an affidavit. Therefore it was held that the idea in enacting the Rule 801 (b) requiring the affidavit seems to be that the matter arising under Section 24 of the Act has, by and large to be decided on the basis of affidavits. This is, however, not to say that no evidence ever should be recorded. In an appropriate case where the courts finds that the matter cannot be disposed of properly on the basis of affidavits alone then it may proceed to record evidence and then decide the matter. The section vests and the Court with the widest discretion regarding the award of pendente lite maintenance and costs of the proceedings, but the discretion has to be exercised judicially. One may draw an analogy from the way the Courts 1 2

Kamlesh vs. Virendra Kumar Uiks, I (1992) DMC 67 MP. Seeta Ram vs. Phooli, AIR 1972 Raj 313: 1972 WLN 390: 1972 Raj LW 398: 1972 Ren CR 865.

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decide the applications for grant of temporary injunctions and the like. Such matters too are normally decided on affidavits. The Section lays down when an order for maintenance pendente lite and the expenses can be passed. Firstly, the spouse concerned should have no independent income sufficient for her or his support and the necessary expenses of the proceedings and then secondly for passing an appropriate order the Court should have regard; (1) to the petitioner’s own income, and (2) to the income of the respondent, and then it should award such sum as may seem to the Court reasonable. A passing of an order under this section will necessarily turn on the circumstances of each case and no fixed rules can be expected on the subject. In cases of ordinary income a rough working rule has been adopted by some courts on the analogy of other enactments, such as the Indian Divorce Act, but that is not a hidebound formula though the working rule may be of some use in fixing the amount of interim maintenance. In cases of substantial income the court need not have regard to any notional rule in exercising its discretion in the matter regarding what proportion of the income of one spouse has to be awarded by way of maintenance to be other. 1 In another case arising out of Hindu Marriage Act, 1955 it was held that if the averments of the petitioner contained in her affidavit are not considered enough, she should be afforded an opportunity to give supplementary affidavit or affidavits on any point required by the Court or if the Court so required even to lead evidence in the course of a summary inquiry, at the end of which proper order should have been passed. 2

Proceeding for restitution of conjugal rights The terms of Section 24 do not lend support of the claim of the revision petitioner that no order for interim maintenance could be passed when the husband has filed an application for restitution of conjugal right. Further it is significant to note that the amount of interim maintenance that one spouse may be ordered to pay the other must be such as appears reasonable to the Court in the exercise of its discretion and when this discretion has been exercised not arbitrarily but properly, the husband cannot have any grievance. 3

Procedure of enquiry The Matrimonial Court is to follow the provisions of Section 21 of Hindu Marriage Act, 1955 which requires the Matrimonial Court to adhere to the provisions of Code of Civil Procedure as far as may be 1 2 3

Vinay Kumar vs. Purnima Devi, AIR 1973 Raj 32: 1972 WLN 698. Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383. Gansan vs. Rasammal, AIR 1994 Madras 366.

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possible and in the interest of justice. The payment of maintenance pendente lite and litigation expenses could, therefore, have been decided by the Matrimonial Court on the affidavits of the parties. There is, thus, no error of procedure. 1 The enquiry contemplated under Section 24 of the Hindu Marriage Act, 1955 is of a summary nature and the dispute between the parties in this regard can be resolved on the basis of affidavits filed by the parties to the proceedings. In this case the petitioner has filed no affidavit in support of his reply and there was nothing on record to show that he was prevented to do so or to lead evidence in support of his case. Hence, it was held that his grievance in this regard had no force. However, since the case had to be remanded for fresh decision on the wife’s application under Section 24 of the Act, liberty was granted to the husband to submit counter affidavit or to lead evidence in support of his case. 2

Proof of marriage The object of this section is that neither party may suffer by her or his inability to conduct the proceedings for want of money for expenses. The real object of the maintenance is to support the party without means during pendency of proceedings. Exercise of power under this section does not appear to be dependent on the defence raised by the opposite party. Even in cases where the factum of marriage is denied by the opposite party the Court has jurisdiction to determine prima facie the factum of marriage on the basis of documents and affidavits that may be placed before the Court. The passing of an order under this section further cannot be postponed till the final determination of the relationship of husband and wife. If it be so the purpose of this section would be frustrated. In a petition for restitution of conjugal rights if the defence taken is that there was no marriage between the parties, and the petitioner-wife has no means to support her or to conduct the legal proceedings she would be without any remedy. In proceedings for restitution of conjugal rights the factum and validity of marriage is generally denied so that the party approaching the Court for relief may be harassed and on account of harassment, such party may not pursue the remedy. I am therefore, of the opinion that even if the factum or validity of the marriage is denied, the Court exercising jurisdiction under the Act has power to award maintenance and litigation expenses to the applicant i.e. the wife or the husband after prima facie determining whether there was marriage or not. The Court however has to be very careful and cautious in considering the affidavits, the documents and other material 1 2

Siremal Burad vs.Shakuntala Devi Burad, II (1994) DMC 9 MP. Nishan Singh vs. Bhupendra Kaur, II (1985) DMC 124 MP.

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brought to its notice while determining the factum of marriage even prima facie, otherwise the provision is liable to be misused. 1 In one case the non-applicant had sexual relation with claimant and had also begotten a daughter from her. In such a situation, when there is no answer given to the plea that the applicant was minor at the time she was given away in marriage by her father to the non-applicant on certain conditions, the applicant can not be deprived of maintenance only on the ground that she is not legally wedded wife of the nonapplicant. In these circumstances of the case the applicant who alleged that at the time of giving away in marriage to the non-applicant she was a minor cannot be blamed for the situation and the non-applicant cannot be allowed to take advantage of his own wrong in taking the applicant as second wife or a concubine. The non-applicant’s acceptance of the fact that he had relations with the applicant and a daughter was born out of these relations should be enough at this stage of the case to ask him to pay maintenance to the applicant. 2 It was also held that the question of enforcement of an agreement contrary to law or opposed to public would also not arise in the case because the applicant has alleged that when she was given away in marriage by her father to the non-applicant she was a minor. She can not therefore, be punished by depriving her of maintenance on the ground that she was trying to enforce an agreement which is opposed to public policy. 3

Quantum of interim maintenance While fixing quantum of maintenance the Court has to take into account not only the needs of person who claim maintenance but also the capacity, status, commitments and the obligations of person who has to pay it. If the husband has to maintain other persons like his parents, his own children etc. reasonable allowance for their maintenance shall have to be made. It would be unjust to grant maintenance in an arbitrary manner. The party who has to pay maintenance is also not to be virtually rendered a destitute. A fair balancing all the relevant factors is to be done by the Courts without the making an emotional approach to the problem. The Court shall have to keep in the mind that what is to be provided is the maintenance and it cannot have saving element in it nor is it the purpose of the legislature to put the claimant in a luxurious

1

2 3

Jagmohan Verma (Lt.Cdr.) vs. Sunita Verma, 1983 (1) DMC 176: 1983 (4) DRJ 144: 1983 RLR 140. Durga Bai vs. Mangi Lal, I (1993) DMC 174 MP. Durga Bai vs. Mangi Lal, ibid.

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position. The definition of “maintenance” given by the Act makes this position amply clear. 1 Similarly if the claimant is residing in a village where the cost of living is comparatively cheaper than in the cities and towns, the Court shall have to take that facts also into account. In such case it also had to be accepted that the wife is required to stay with her parent and that she had to undergo medical treatment as she was suffering from psychic disease which may recur. She may have to resort to sedatives. From the history of her ailment as narrated by the husband in his reply, it became clear that the wife required medical treatment spread over a long period and therefore, reasonable provision shall have to be made for her medical treatment also. At the same time, it was also to be kept in mind that the husband is required to maintain himself, his aged mother and two grown up children. It was therefore held that, the income of the husband was required to be divided into five units, and reasonable provision is required to be made for all those who are dependent upon the husband. Taking all the aforesaid factors into consideration the amount of Rs. 1500/-p.m. for the wife who was residing in a village was held to be slightly on the higher side inasmuch as the husband who resides in the City shall have also to make provision for his aged mother and two grown up children besides himself. Since the purpose of maintenance is not to make the wife, in any way, richer or to put her in luxurious condition and since the actual amount being spent by her towards medical treatment could not be determined at this stage it was held that the amount of Rs. 1,250/-p.m. towards maintenance would be just and proper to the wife. 2 Courts have to steer clear of two extremes, namely, they should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation. They should also steer clear of the other extreme, namely penuriousness. 3 Where it is a stage of grant of interim maintenance, a reasonable sum to be awarded towards interim maintenance pending the final decision of the suit for maintenance. In this case it was held that the learned trial Court had not considered that Rs. 300/- p.m. was hardly 1

2

3

Kailashchandra Guptra vs. Chamanlal Gupta, 1985 (1) Hindu Law Reporter 411 Dharamsi Dahyabhai Patel vs. Devyani Dharamsi Patel, I (1993) DMC 605 Guj. Kashinath Sahu vs. Devi, AIR 1971 Orissa 295: (1971) 1 Cut WR 543.

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sufficient in these days of high price of essential commodities to meet out even one time meal expenses. Food, clothes and house are the three basic needs of a man/woman. While arriving at a reasonable figure of interim maintenance, the Court should have taken care of all these requirements. In addition to this, medical expenses may also be necessary. The amount of Rs. 300/- p.m. is not even sufficient to make it easy for the lady, the petitioner herein to have three times tea. Normal living cost in these days is very high. Taking into consideration the totality of the facts of this case, it is in the interest of justice and to provide a reasonable sum of interim maintenance to the petitioner the respondent is directed to pay Rs. 2,000/- p.m. as interim maintenance to the petitioner. 1 Sub-sec. (2) read with Sub-sec. (1) of Section 23 leaves the matter of fixation of amount of maintenance to the discretion of the Court while stressing that the position and status of the parties, reasonable wants of the claimant, the income and the property of the claimant and the number of person when the husband is bound to maintain are among the factor and circumstances which must be takes into consideration by the Court. In fixing the quantum of maintenance it would be necessary and of primary importance to consider the overall financial position of the husband. The words “position and status of the parties” in Sub-sec (2) are wide enough to include the financial position of both the parties as a matter of vital consideration in the matter. 2 While considering the aforesaid factors, and mainly question as to what is required by the wife to maintain herself, the Court have to steer clear of the two extremes, namely, they should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation. They should also steer clear of the other extreme, namely, penurious-ness, i.e., not to drive the wife in penury. 3 In another case testimony of the wife was that when she filed the application for maintenance husband was village pradhan. He carries on trade of grain and has monthly income of Rs. 5000/-. In her crossexamination it was elicited that the husband has 33 bighas of land; the three brothers have 100 bighas of land. There was no cross-examination on the point of trade carried on by the husband. Testimony of the husband was that he has only two acres of land yielding meagre income. 1

2 3

Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya, AIR 2001 Gujarat 157. Chandrapal vs. Harpyari, I (1993) DMC 346 All. Kasind Sahu vs. Smt. Devi, AIR 1971 Orissa 295.

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He had no other sources of income. Suggestion put in his crossexamination that he can pay maintenance of Rs.500/-per month to his wife was denied by the husband. This was all the evidence about the sources of income of the husband. Then there was one very important circumstance related to the means of the husband. It was consistent finding of the two lower Court that he married with another woman from whom he has a child. In face of this circumstance testimony of the husband that he has only two acres of land and has meagre income is suppression of his tangible means of income. His status has been that of village pradhan. He has capacity to keep another woman and beget a child from her whom he is liable to maintain. He did not specifically denied his trade of grain. Considering all these circumstances, testimony of the wife that the husband has income of Rs. 5000/-per month may be exaggeration, it was held that excluding the exaggeration the husband cannot be expected to have income of less than Rs. 500/-per month therefore, it was not proper to interfere in the enhancement of the maintenance allowance of the wife to Rs. 200/-per months. 1 In one case the Court below came to the conclusion that the husband gets Rs. 2,500 per month as income. Further, admittedly apart from the petitioner-husband being a salaried employee, he is also owning lands, where several crops are cultivated and income is earned therefrom. The Court below pointed out the evidence given by P.W. 2, the Village Administrative Office regarding the extent of the land owned by him and the crops raised therein. He has also given details of his earnings from the abovesaid lands and he has also produced Exs. A-1 to A-4. Onitta and Adangal extract relating to the lands owned by the petitioner. All these were mentioned in details in the Order of the Court below. It was held that the Court below rightly rejected Ex. P-1 filed by the petitionerhusband to contend that his salary was only Rs. 250/- per month, and came the conclusion that he was earning at least Rs. 2,500/- per month. So, taking all these into consideration, the Court held that he would be entitled to Rs. 30,000 per year, in other words, Rs. 2,500 per month. 2 In one case the appellant had stated that he was holding the post of Revenue Inspector and was getting a salary of Rs.. 2000/-per month. The wife claimed maintenance pendente lite of Rs. 800/-for her self and her daughter and in addition litigation expenses of Rs. 1000/-. On a just and fair consideration, commensurate with the earning of the appellant it was deemed fit to order that the husband shall pay to the wife through Court a monthly amount of Rs. 600/- as maintenance during the 1 2

Chandrapal vs. Harpyari, I (1993) DMC 346 All. C. Krishnan vs. Ponmudi, I (1993) DMC 502 Mad.

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proceedings in the appeal i.e., from the date from which the wife contested this appeal after service of notice of this appeal till the date of the order and in addition a sum of Rs. 600/-as litigation expenses for defending this appeal. 1

Quick disposal An application under section 24 is to be quickly decided as a summary proceeding and that it could not be made to wait until an issue on merits was taken up for consideration. The proceeding will not cease to be a proceeding for the purpose of section 24 of the Hindu Marriage Act, if the proceeding was for the relief which could be granted under the Hindu Marriage Act. 2

Reasonable amount What Section 30 of J&K Hindu Marriage Act requires is that the amount awarded by way of compensation should be reasonable. The expression “reasonable” is a relative term. What may be reasonable in one case may not be necessarily reasonable in another case. Reasonableness of the quantum of compensation has not to be determined by merely having regard to the petitioner’s own income and the income of the respondent but also by having regard, as far as may be, to the standard of life maintained by the family to which the parties belong. The rule that is no case maintenance should be granted at a rate or more than one-fifth of the husband’s income is not only unreasonable, but also irrational which may some time defeat the very object of avoiding vagrancy; the reason d’etre of Section 30 of the Act. 3

Reduction and enhancement of amount In the changed circumstances, the power has to be implied in the Court to reduce or change the rate of maintenance, because maintenance to be paid is only during the proceedings. Such a power of variation of the rate of maintenance pendente lite is to be inferred in the Court, is the view of High Courts of Orissa and Delhi. 4

1 2 3

4

Ramesh Chandra vs. Padmabai, I (1992) DMC 24 MP. Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay. Rakesh Chandok vs. Vinod, II (1982) DMC 325 J&K.: AIR 1982 J&K 95: 1982 Srinagar LJ 127. Laxmi Priya Rout v. Kama Prasad Rout, AIR 1992 Orissa 88; Anuradha v. Santosh Nath Khanna, AIR 1976 Delhi 246: 1976 Rajdhani LR 74: (1976) 78 Pun LR (D) 53: (1976) 12 DLT 26.

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In case the suspension of the husband from service is revoked, it was held that it would be open to the wife to approach the Court for restoring the earlier rate of maintenance. 1

Refusal of maintenance to pressurise To refuse maintenance pendente lite and expenses of litigation to the wife and her minor child, merely to pressurise the wife to reconcile her differences with her husband cannot, but be branded as a patent misuse of the provision of Section 24 of the Hindu Marriage Act, 1955. 2

Resjudicata The application filed under Section 24 of the Hindu Marriage Act cannot be rejected merely on the ground that an application earlier filed under Section 125, Cr.P.C. for maintenance was rejected. When the proceedings under Section 9 of the Hindu Marriage Act are pending in the trial Court, the wife, under Section 24 of the above Act, is entitled to file an application for grant of maintenance of pendente lite. Therefore it was held that the trial Court had rightly heard the matter and decided the same on merits as the earlier decision under Section 125, Cr.P.C. is no bar in deciding the application under Section 24 filed by the wife in the trial Court. It was also be pointed out that the denial of factum of the marriage by the husband was yet to be proved by him in the trial court and merely because he has denied the factum of marriage, the right of wife to get maintenance of pendente lite cannot come to end till the same is finally decided by the trial court. 3

Retrospective effect An application under Section 24 of the Act is not a suit by the wife for maintenance under the Hindu Adoptions & Maintenance Act, 1956. Therefore, the maintenance could not have been granted prior to the date of application under Section 24 of the Act. 4

Right of Children In one case the trial court had before it an application only under Section 24 of the Act for pendente lite maintenance both for the wife and the minor child. After referring to the decisions of the other High Courts and while upholding the grant of maintenance to minors it has been held as under

1 2 3 4

Neelam vs. Kailash Bajpai, II (1994) DMC 188 MP. Gurmeet Kaur vs. Gur Raj Singh, AIR 1989 P&H 223. Virendra Kumar vs. Santoshi Devi, AIR 1988 Rajasthan 127 (DB). Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa.

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‘It is also true that Section 24, in terms, provide for pendente lite maintenance for the spouse only and not for the children of marriage. But Section 26 invests the Courts with full jurisdiction to pass, from time to time, such interim order for maintenance of minor children as the Court may deem just and proper. It should also be noted that while Section 24 requires for its operation on application from the spouse concerned, the provision of Section 26, so far it relates to interim maintenance may be invoked even without any application in writing and a formal application in writing is necessary under Section 26 only for awarding maintenance and other reliefs after the decree. The learned Judge, therefore, had perfect jurisdiction to grant pendente lite maintenance to the minor child even without a formal application and, therefore, his granting such interim maintenance even when moved by an application labelled as one under Section 24 only, can not be branded as without jurisdiction or to involve any jurisdiction question even though Section 24 does not provide for maintenance for children. As already indicated, when the Court had jurisdiction under Section 26 to grant pendente lite maintenance to the minor child the court could exercise its jurisdiction even without any formal application, it would be putting too much premium on technicalities to strike down an order for maintenance for the child solely on the ground that the application invoking such jurisdiction quoted a wrong section or did not quote the right section. The tendency of the courts, as pointed out by the Supreme Court in Pratap Singh vs. Shri Krishna Gupta, 1 towards technicalities is to be deprecated because it is the substance that counts and must take precedence over mere form. If in substance the wife has applied for maintenance of the child also and the materials on record also justify such a grant, then the application being labelled as one under Section 24 only is only a matter of form and the application could very well be treated as an application for the purpose of Section 26 also, even if an application was necessary for pendente lite maintenance of children under Section 26. It is true that some High Court have taken the view that while allowing an application under Section 24 of the Hindu Marriage Act, the Court has no power to grant pendente lite maintenance for the minor children and reference in this connection may be made, among others, to a Division Bench decision of the Orissa High Court Akasam Chinna v. Akasam Parbati, 2 and to a singleJudge decision of the Patna High Court in Bankin Chandras v. Anjali. 3 We have examined those decisions and we have felt, and this we have felt, and this we say with great respect, that these 1

2 3

Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 at page 141 AIR 1967 Orissa 163 at 164. AIR 1972 Patna 80 at 81.

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decisions have adopted a rather technical and literal approach and the effect and impact of Section 26 of the Hindu Marriage Act have not at all been considered in these decisions. The SingleJudge decision of the Karnataka High Court in D. Thimmappa v. R. Nagaveni 1 is, however, in full accord with our view where it has been held (at 217) that when the wife makes an application under Section 24 of the Act to the Court for the grant of interim maintenance for the children also, the Court can grant the relief to the children also in exercise of its power under Section 26 wherever it considers it to be just and proper. The Single-Judge decision of the Rajasthan High Court in Babolal v. Prem Lata, 2 is also to the same effect where it has been held that if a case is made out to that effect, interim maintenance can be granted to the minor children while considering an application under Section 24 by the wife even in the absence of separate application under Section 26 of the Act. We are, therefore, of the view that in granting maintenance to the minor daughter, while disposing of and allowing the application under Section 24 by the wife, the learned Judge has not made any illegal assumption or illegal exercise of jurisdiction to warrant our intervention in revision. 3 In order to claim maintenance for children as contemplated under Section 26, no separate application is required to be made and on the application of the wife moved under Section 24 in the proceeding for dissolution of marriage under Section 13 of the Act, interim maintenance may be granted for the children also. 4 The requirement of the husband or the wife would also include the expenses required for the maintenance of the child. The interpretation of the provisions should not be too literal; but purposive and functional. As the provisions contained in Section 26 would go to indicate, the court is empowered to pass interim orders as it may deem just and proper with respect to maintenance of minor children. Section 26 operates also during the pendency of the proceeding under the Hindu Marriage Act. So, assuming that the provisions contained in Section 24 stricto sensu do not authorise grant of maintenance to child. Section 26 authorises the grant of pendente lite maintenance by way of interim orders during the pendency of the proceedings. If the petition contains the averments, notwithstanding the fact that the petition for maintenance pendente lite is not made under Section 26, but only under Section 24, the court is 1 2 3

4

AIR 1976 Karnataka 215. AIR 1974 Rajasthan 93. Purshottam Das Aggarwala vs. Pushpa Devi, I (1983) DMC 100 Orissa; Manjo KR. Jaiswal vs. Lila Jaiswal, II (1986) DMC 269 Calcutta. Harpal Singh vs. Additional Session Judge, 1999(3) CCC 232 All.

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empowered to grant maintenance under Section 24 or under Section 24 read with Section 26 of the Act. Being of the view that the provisions contained in Section 24 and 26 are beneficial provisions and literal interpretation would be unsound, it was held that on an application claiming maintenance for the husband or the wife, as the case may be and for the child, maintenance can be granted to the child howsoever labelled the petition may be. The substance matters, not the form. If there be authority under the provisions, there is end of the matter. 1 Where an application is filed under Section 24 and there is an averment of existence of minor child, the Court having regard to the provisions of Section 26 can make an order awarding maintenance pendente lite in respect of minor of child as well as the applicant. 2 The jurisdiction to pass orders with respect to the custody maintenance and education of minor children continues even after the main proceeding, initiated under the Act, has come to an end. The expression that “the court may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children etc:” and “that the court may also from time to time revoke, suspend of vary any such orders” would show that the decree in the main proceeding does not terminate the power of the court to pass suitable orders relating to the custody, maintenance and education of the minor children. These orders are essentially in the nature of interim orders and are liable to be modified, revoked or suspended if there be a change in the relevant circumstances of the parties. 3

Scheme under Hindu Marriage Act, 1955 S 24 of Hindu Marriage Act, 1955 is as under: “24. Maintenance, pendente lite and expenses of proceedings— Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses for the proceeding such sum as, having 1

2

3

Mahendra Kumar Mishra vs. Snehalat Kar, AIR 1983 Orissa 74: 1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254: (1983) 1 DMC 219. Subhasini vs. B.R.Umakanth AIR 1981 Kant 115 (DB): ILR (1980) 1 Kant LJ 734. A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87 Mad LW 537: (1974) 2 Mad LJ 237.

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regard to the petitioner’s own income and the income of the respondent. It may seen to the Court to be reasonable” The Section 24 is in two parts. The first part of the Section provides for enquiry to be held by the Court in regard to the income of the wife or husband (applying under Section 24), as the case may be, as to whether her or his income is sufficient for her or his support. Once after such an enquiry it is held that the wife or the husband, as the case may be, has no sufficient income to support herself or himself, the Court will proceed to make an order directing the other side to pay maintenance pendente lite as well as expenses of the proceeding. At that stage, which will constitute the second stage of enquiry, the Court will, for the purpose of determining the sum of the maintenance or the expenses, take into consideration the own income of the wife or husband, as the case may be, as well as the income of the other side. In my opinion, the expression “having regard to’ occurring in the second part of Section 24 refers to and is relevant only for the purpose of quantification of the sum, which is to be paid by the husband or the wife. In a case where there is no dispute that the petitioner of the application under Section 24, in the instant case the wife-opposite party, has no income of her own, the order in terms of Section 24 directing payment of maintenance pendente lite and the expenses of the proceeding should ordinarily be made. 1 In this connection it would not be put of place to mention that the history of law of alimony or maintenance can/be traced back to the conditions then prevailing in England where the wife was considered to be a tutelage to and economically dependent on her husband and was thus to be maintained so long she was the wife. The conditions prevailing in India even now, by and large, are no better. In many English decision it has been held that the wife is the privileged suitor. Therefore, having regard to the conditions prevailing in India the provisions of Section 24 have to be liberally constructed as to make them vibrant rather then dormant. In the instant case, there is no dispute that the wife has no income of her own. The factum of marriage is also not in dispute. It was accordingly, held that there was no infirmity in the order granting interim maintenance and expenses of the proceedings. 2 Depending in the eligibility as visualised under the Section to the benefits under it, either the wife or the husband can be directed to pay the other side: (1) the expenses of the proceeding; and (2) reasonable sum to be paid monthly during the pendency of the proceeding, for his or 1 2

Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna. Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.

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her support. The monthly sum so paid is obviously towards maintenance during the proceeding. The Court adjudicates the amount necessary and allowable to the respondent as the maintenance and support and directs the respondent to pay the same. Hence what is determined by the Court is actually the amount which becomes payable to the applicant for his or her support. The words “during the proceeding” only indicates the period till which the payment is to be directed. The right to get the sum, as is directed, is independent of the continuance or otherwise of the proceeding itself. But the monthly sum so fixed would not continue to be chargeable beyond the conclusion of the proceeding, but the liability to pay, as determined, is independent of the continuance of the proceeding. The word do not have any other meaning except that. Hence the responsibility to pay the maintenance fixed independently survives the closer or lapse of the proceeding and can be proceeded with for enforcement by the party in whose favour the order has been made. This conclusion is irresistible since the event for payment of interim maintenance is the initiation of the proceeding against the other side in which he or she is made to appear and defend himself which necessarily involves incurring expenditure for the purpose, and if he or she has no independent source of income sufficient for support, the law casts responsibility on the other side having regard to the respective income of the parties, to pay the maintenance. The provision is independent of the provisions of Section 25 of the Act or the provisions of Hindu Adoptions & Maintenance Act or Section 125 of the Code of Criminal Procedure. 1 The right of a wife for maintenance is an incident of the status or estate of matrimony. In general, therefore, the husband is bound to defray the wife’s costs of any proceeding under the Act and to provide for her maintenance and support pending the disposal of such proceeding. The doctrine of alimony, which expression in its strict sense means allowance due to wife from husband on separation from certain causes, has its basis in social conditions in England under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her while prosecuting or defending proceeding under matrimonial law. It is also recognised that when the wife has separate means sufficient for her defence and subsistence she should not be entitled to alimony nor costs during the proceeding and if the husband has neither property nor earning capacity, the courts would not award any interim alimony. It is on these principles that the law relating to matrimonial causes provides

1

Parchuri Rajya Lakshmi vs. Parchuri Viswa Sankara Parasad, I (1995) DMC 630 AP: 1995(2) CCC 487.

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for rules for payment of maintenance pendente lite and expenses of proceedings by the husband to the wife. Section 24, Hindu Marriage Act, 1955 adopts the above principles and goes one radical step further when it lays down that any such order can be made not only in favour of the wife but also in favour of the husband. The expression ‘respondent’ and ‘petitioner’ in the section obviously refer to the respondent and petitioner to the interlocutory application for pendente lite and for provision for cost and not to the petitioner and respondent to the substantive petition. 1

Scope of enquiry While fixing permanent alimony and maintenance under Section 25 of the Act, the court is expected to make detailed inquiry and has to take into account not only the income but other properties of the parties, their conduct and other circumstances of the case that the court might consider relevant. But that would not be so for the decision of the application under Section 24 of the Act as in its very nature, the inquiry under Section 24 has necessarily to be summary. The court cannot be bogged down to intricacies of a protracted trial for fixing maintenance pendente lite and expenses of the proceedings. Otherwise, the very object of the section would be frustrated which is that a party is not handicapped in prosecuting his or her case. But, then in deciding the application under Section 24 of the Act, the court has to act in accordance with sound judicial principles and cannot act in an arbitrary fashion to the prejudice of either of the parties. 2 The following principles would appear to be relevant for the purpose: (1) position and status of the parties; (2) reasonable wants of the claimant (towards food, clothing, shelter, medical attendance and treatment, education and the like); (3) income of the claimant; (4) income of opposite party; (5) number of persons opposite party is obliged to maintain. Two corollaries may be added here: (1) In arriving at the income of a party only involuntary deductions like income-tax, provident fund contribution, etc., are to be excluded; and (2) though under the law opposite party may be obliged to maintain brother or sister but if that brother or sister having no income is living with the opposite party as member of his family and where either there are no parents or are unable 1

2

Rajambal vs. Murugappan, I (1986) DMC 59 Madras; Amrik Singh @ Bhalla vs. Lakhwinder Kaur, II (1985) DMC 143 P&H. Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10.

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to maintain themselves, the court may in a given circumstances consider the expenses to be incurred on the maintenance of brother or sister by the opposite party. After all, court cannot be expected to adopt a mechanical approach while interpreting the provisions of law incorporating principles of social justice like Section 24 of the Act. 1

Scope of entitlement An order of maintenance pendente lite and costs of the proceedings can be made only in a proceeding under the Hindu Marriage Act and only for the period “during the proceedings”. The term “during the proceedings” would cover the proceedings from the start till the end or at least from the date of the application under Section 24 till the termination of the proceedings in the Court. Section 24 of Civil Procedure Code confers general power of transfer and withdrawal of suits and proceedings up on the High Court and the District Court. There is no substance in the contention raised on behalf of the applicant that this application under Section 24 of C.P.C. is part of the proceedings initiated by the opposite party for the annulment of the marriage under the provision of Hindu Marriage Act but assuming without deciding that it is part of the proceedings so initiated under the provisions of the Hindu Marriage Act, the applicant cannot claim expenses for the application and monthly allowance independent of the initial proceedings. Under Section 24 of the Hindu Marriage Act one can claim maintenance pendente lite and expenses for the entire proceedings and not for each and every application and step taken in those proceedings. 2 So even if it is assumed that this transfer application is a step taken in the initial proceedings or is a part of the initial proceedings which are pending in the court below, then the applicant cannot claim separate expenses for this application. In this view of the matter, the applicant was held to be not entitled for maintenance pendente lite and expenses of proceedings for this transfer application even if it is assumed that it is a part of the proceedings initiated against her by the opposite party under the Hindu Marriage Act. 3 A wife cannot be held to be entitled to maintenance pendente lite under Section 24, Hindu Marriage Act solely or simply on the ground that she is running in deficit in running her separate household. The trial court would have jurisdiction to award maintenance under that section 1 2

3

Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10. Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302: 1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450. Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302: 1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.

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only on the finding that the applicant-wife has no independent income sufficient for her support and what amount would be sufficient for the support of the wife must be determined on the basis of the income of the husband. Where the trial court did not determine as to what amount the wife-applicant can reasonably claim for her support as the wife of the husband-opposite party and not having found that she does not earn that income, the absence of the jurisdictional fact to invest the Court with the jurisdiction to invoke Section 24 is apparent on the face of the record. 1

Scope of expenses In so far as the word “expenses” is a word of wider connotation and includes “costs”, but is not limited to the costs that would be payable on a party-and-party taxation under the rules of the Court. This view of the word “expenses” used in Section 36 is supported by the very object of the provision that is to be found in that section which is to enable the wife to contest the proceeding without being at the disadvantage of suffering from want of means. That object would not be served if the word “expenses” in Section 36 is construed as limited to the amount that would be payable by way of costs on a party-and-party taxation. In my opinion, having regard both to the language of the section as well as its object, the Court has power under Section 36 to order payment pendente lite of all or such part of the attorney and client costs incurred by the wife as it may consider to be reasonable. 2

Scope of Liability Any one who claims himself to be a married man should be able to pay that much for the support of his wife and if the husband is not in a position to pay even that much to the wife he has no right to the society of wife even if the marriage between them was valid in law. When it is the case of the husband that the wife was over 18 years of age when the marriage took place and the marriage was right and proper he should have instead of filing this application against the order under Section 24, tried to have the main petition for divorce decided as early as possible because his liability for maintenance will continue only up to the date of the decision of the main petition. 3 1

2

3

Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC 276 Calcutta. Louise Dinshaw Cambata vs. Dinshaw S. Cambata, AIR 1974 Bombay 82: 75 Bom LR 532; 1973 Mah LH 1051. Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452: 1982 Hindu LR 387; Ram Babu vs. Second Additional Civil Judge, Kanpur, I (1983) DMC 196 All.

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Second Appeal Any proceeding under the Act is a proceeding in respect of a right conferred under the Act and touches, in most cases, the marital status of the party to the marriage. Such a proceeding starts in the Trial Court and continues till the rights status of the parties is finally adjudicated. Thus, an appeal, and for that matter even a Second Appeal would obviously relate to the adjudication of the rights of the parties to the main petition and it can hardly be said that a first appeal or even a second appeal is not a proceeding under the Act. 1 The right of second appeal conferred by Section 28 is limited to the grounds set out in Section 100 of the Code of Civil Procedure and can, therefore, be exercised only on questions of law and not on question of fact. What should be the quantum of the amount of permanent alimony on a consideration of the factors set out in Section 25 is essentially a question of fact and no Second Appeal can lie to challenge the determination of the amount of permanent alimony made by the lower appellate Court unless the complaint be that the lower appellate Court has failed to take into account any factors set out Section 25 or taken into account any extraneous or irrelevant factors. 2

Second marriage The respondent is primarily liable for the maintenance of the petitioner so long as she does not re-marry. The respondent is claimed to be supporting his sister and mother. But the mother has no ration card with the respondent and the sister is also married. Therefore, there is no other liability resting on the shoulders of the respondent. Taking into consideration the total income of the respondent, it was held that maintenance at the rate of Rs. 450/-would be just and reasonable. The fixation of the maintenance allowance at the rate of Rs. 150/- per month from the date of the application seems to be justified in the totality of the circumstances of the case. 3 The object behind Section 24 of the Act providing for maintenance pendente lite to a party in matrimonial proceedings is obviously to provide financial assistance to the indigent spouse to 1

2

3

Sunita Anilkumar Agrawal vs. Anilkumar Balmukund Agrawal, 1998(2) CCC 479 Gujarat. Patel Dharamshi Premji vs. Bai Sakar Kanji, AIR 1968 Gujarat 150 (DB): ILR (1967) Guj 866: 8 Guj LR 888. Surinder Kaur vs. Manohar Singh, II (1991) DMC 84 Delhi.

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maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. When considering such a piece of legislation, it would not be right to adopt a narrow pedantic approach. On the other hand if the Court desires to gather the legislative intention from the provisions of such an Act, it must adopt a liberal and progressive approach keeping in mind that it was the liberal and progressive approach of the Legislature which led to the enactment being passed. 1 Even in a case of bigamous marriage one of the parties can seek a decree of nullity of marriage by way of petitioner or respondent which is permissible under Section 23-A of the Act. It may also be seen that in pending proceedings even at the instance of the second wife is a void bigamous marriage, the Court is empowered to make an attempt for reconciliation, to pass necessary orders with regard to the custody of the children and disposal of the property exchanged at the time of marriage. The Court has also power in such proceedings to make an order of permanent alimony or maintenance under Section 25 of the Act. The Act confers wide powers on the matrimonial Court so as to regulate matrimonial relationship between the parties and such powers are to be exercised by the Court even in a case of alleged or proved bigamous marriage. In enacting Section 24 a special provision is made for ordering interim maintenance and the expenses of litigation to be provided for the contesting husband or wife if he or she had no independent sufficient income. There is no reason why the words “wife” or “husband” used in Section 24 should not be interpreted so as to include a man and woman who have gone through a ceremony of a Hindu Marriage which would have been valid but for the provisions of Section 11 read with Clauses (i) of Section 5 of the Hindu Marriage Act. These words have been used as convenient terms to refer the parties who have gone through a ceremony of marriage whether or not that marriage is valid or subsisting, just as the word “marriage” has been used in the Act to include a purported marriage which is void ab initio. 2

Striking off defence “He who seeks equity, must do equity”, is another maxim of equity. Still another maxim “Equity imparts an intent to fulfil an obligation”. And a person who is not equitable in discharging his family 1

2

Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC 221 Bombay. Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC 221 Bombay.

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obligation is not entitled to any relief from a matrimonial court. All these maxims of equity are invoked while exercising inherent powers of the court, for staying the proceedings, striking off the defence or dismissing the suit. By just passing the said orders, only the dignity of the Court is ensured, while by enforcing the order obligations to the family, wife and children are saved from vagrancy. These are two sets of obligations and they obviously require two remedies. As such, two sets of civil remedies should not be equated with double penalty. 1 Where the husband was afforded more than ample opportunities for making the payment but he did not pay the maintenance pendente lite allowed to the wife under Section 24 of the Act, it was held that the Judge, Family Court thereupon rightly struck off the defence of the appellant who was respondent in the divorce petition. 2

Enforcement of order Maintenance pendente lite and expenses of the proceedings are ordered to be paid under Section 24 of the ground that the spouse in whose favour the order has been made is without necessary means to maintain herself and bear the expenses defending herself. Section 28-A of the Hindu Marriage Act provides that all decrees and orders made by the Court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction for the time being enforced. It cannot be disputed that order under Section 24 is passed during the pendency of the proceeding under the Act. Therefore, it is executable as decree passed by Civil Court in exercise of original civil jurisdiction. 3 The Bombay High Court in Sarla Devi vs. Bharat Kumar 4 went to the extent of holding that wilful disobedience by the husband to pay the maintenance pendente lite and expenses of the proceedings would be guilty of contempt and proceedings for contempt is not vitiated by parallel proceeding under Order 21 Rule 37.

Unchastity If a subsequent conduct of the wife who has become unchaste can form the basis for cancellation of an order passed under Section 25(1), a finding recorded during the judicial separation proceedings, regarding the unchastity of the wife must and should be taken into account even in 1

2 3 4

Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66) DLT 460. Om Prakash vs. Babli, II (1999) DMC 619 Rajasthan. Kishan Lal vs. Longa Bai, I (1993) DMC 93 MP. Sarla Devi vs. Bharat Kumar, I (1988) DMC 487

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the first instance, when an order is being passed under Section 25(1) of the Act. Otherwise it will lead to a very incongruous situation namely, that it is only when a wife becomes unchaste after the award of maintenance she is disabled from continuing to receive that maintenance, whereas a wife who has been held guilty by the Court of unchastity even in the main proceedings, will nevertheless be entitled to get maintenance, in the first instance, under Section 25(1) of the Act. 1

Urgency The object of Section 24 is to provide a monthly income and expenses of the litigation to an indigent spouse to enable it to prosecute or defend the proceeding under the Act and the law sees that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lack of funds. It is true that the Court exercises wide discretion in the matter of granting maintenance pendente lite, but the discretion is judicial and not arbitrary and capricious. 2 In enacting Section 24, a special provision is made for ordering interim maintenance and the expenses of litigation to be provided for the contesting husband or wife if he or she had no independent sufficient income. The very purpose of an order under Section 24 would be frustrated if the manner of granting interim maintenance and of providing the requisite expenses for the conduct of the proceedings itself is deferred till the final stage of the proceeding. The direction for interim alimony and expenses of litigation under Section 24 is one of urgency and it must be decided as soon as it is raised and then only the other matters in controversy can be gone into. 3

Waiver The wife got a lump sum amount of Rupees 9000/- in execution of the order passed in her favour under Section 125, Cr.P.C. At the time when this amount was paid to her, only a sum of Rs. 6450/- was due to her, but the husband in order to settle the matter finally paid a sum of Rs. 9000/- and got an undertaking from the wife that no she would not 1

2

3

Raja Gopalan vs. Rajamma, AIR 1967 Ker 181: ILR (1966) 2 Ker 291: 1966 Ker LJ 856: 1966 Ker LT 891: 1966 Ker LR 518. Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996 Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700: 1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996 (1) All Mah LR 136. Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996 Bombay 94: 1996 (2) Bom CR 531: 1996 (1) CCC 700: 1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996 (1) All Mah LR 136.

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claim any type of maintenance etc. against him i.e. her husband. It was on account of this undertaking that the amount which was not been even due at that time, was paid to the wife. In view of that undertaking, it was held that the wife could not claim separate maintenance under Section 24 of the Act, though, she may be entitled to the litigation expenses. 1

Withdrawal of application Dismissal of the earlier application as withdrawn without permission to file a fresh application would be deemed to have been dismissed on merits. The underlying idea of order 23, Rule 1 of the C.P.C. is that unless specific permission is sought from the Court to file a fresh suit on the same cause of action, second suit would not be maintainable to avoid multiplicity of proceedings and harassment to the opposite party. But those principles are not applicable when the application of the husband for the grant of restitution of conjugal rights is still pending and Section 24 of the Act clearly allow the wife to claim maintenance pendente lite as also the litigation expenses. It was held that unless her claim under Section 24 of the Act is declined on merits by a speaking order, she cannot be denied the benefit of Section 24 of the Act. 2

Withdrawal of main petition The Trial Court gave a detailed order considering the income tax returns and the fact that the petitioner was in business and had some rental income and the wife was living in one room of her matrimonial home. The main plea of the petitioner in the revision petition was that the impugned order could not have been passed against him after the withdrawal of the main petition filed by him under Section 13(1) of the Hindu Marriage Act. It was held that this plea was without substance as it is not stated at all whether after the withdrawal of the petition the wife and the daughter were being maintained by him. It was further held that irrespective of the withdrawal of the main petition by the husband, his liability towards maintenance of his wife subsists and her right cannot be defeated by this hyper-technical plea. 3 Normally the plaintiff of a suit has absolute and unqualified right to withdraw from the suit. His liability is two-fold liability, i.e., 1

2 3

Pritam Singh vs. Rajinder Kaur, AIR 1983 P&H 239: 1983 Hindu LR 264: 1983 Marri LJ 300: 1983 Cur LT (Civ & Cri) 570: 1983 Mat LR 218. Devinder Kaur vs. Gurcharan Singh, II (1983) DMC 63 P&H. Kamal Seth vs. Saroj Seth, 1999(1) HLR 513 Delhi: 1999(1) DMC 267.

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(i) to pay such costs as the Court may award and (ii) he becomes precluded from instituting any fresh suit in respect of that subject-matter under Sub-rule (3) of Rule 1. Excepting the above twin liabilities, the right of the plaintiff to withdraw from a suit is absolute and unqualified. However, there are certain circumstances were different considerations may arise. As for example, where a set off is claimed under Order 8 of Civil Procedure Code or where a counter-claim is filed or where in a suit for partition a preliminary decree is passed declaring and defining shares of several parties or where and a partnership suit and suit for accounts defendants too may be entitled to some relief’s in their favour as a result of settlement of accounts. 1 Similarly it has been held that when during the pendency of the proceedings under Section 9 of Hindu Marriage Act, application made by the wife under Section 24 of Hindu Marriage Act, 1955, and by virtue of statutory right recognised by Section 24 of the Act a right has accrued to the wife to receive maintenance pendente lite least from the date of her application and the costs of litigation, it shall have to be decided as to whether the right of plaintiff (petitioner) to withdraw from the suit or petition for restitution of conjugal rights remains uncontrolled and absolute or it gets settled by the right of the other spouse to get maintenance pendente lite at least upto the date of application for withdrawal of suit/petition. 2

Working wife All the High Courts in India have generally held that wife is entitled to maintenance pendente lite to the extent of 1/3rd to 1/5th of the income of the husband under Section 24 of the Act. The word “sufficient” is a relative term and has to be considered on the facts of each case. In this case it was held that if the wife was not employed she would have been entitled to at least Rs. 1500/- to Rs. 2000/- per month as maintenance pendente lite because the income of the petitioner has been assessed at Rs. 8000/- per month. It was held that merely because the respondent had chosen to work it does not mean that she is to be put at a disadvantage and the husband is entitled to the benefit. It was further held that he may be entitled to the benefit to the extent of her

1

2

Pratapbhai V. Trivedi vs. Priyamvada Ghamu Pratapbhai Trivedi, II (1993) DMC 25 Gujarat. Pratapbhai V. Trivedi vs. Priyamvada Ghamu Pratapbhai Trivedi, II (1993) DMC 25 Gujarat.

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independent income but that does not mean that the income of husband become irrelevant. 1

Written statement The wife was not bound to file the written statement before moving the court for grant of maintenance pendente lite and expenses of the proceedings. The whole object of awarding expenses of proceedings is to enable the party to fight the case. 2

1 2

Ashok Kumar vs. Satwant Kuar, I (1983) DMC 27 Delhi. Jagdish w/o Hari Singh vs. Hari Singh, I (1985) DMC 100 Delhi.

Interim maintenance—Object

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Chapter 3

Interim maintenance SYNOPSIS Introduction....................................125 Object .............................................125 Appropriate forum .........................127 Conditions for granting maintenance .......................................................127 Effective date..................................128 Hardship ........................................128 Inherent powers .............................128 Necessity of detailed enquiry .........130 Need for liberal approach ..............131

Powers under Criminal Procedure Code, 1973..................................... 131 Pauper wife.................................... 134 Power under Section 151 Civil Procedure Code ............................. 134 Power under Hindu Marriage Act, 1955 ............................................... 134 Quantum ........................................ 134 Scope of adjudication .................... 135

Introduction Various enactments provide different provisions for maintenance of wife by her husband. Some of these provisions provide for maintenance during pendency of litigation between the parties while other during the subsistence of marriage. Very often the application seeking fixation for maintenance itself takes considerable time. Therefore in order to do justice to the parties especially to the weaker party it has been held by the courts that the matrimonial court is also empowered to grant ad interim maintenance to the wife. This chapter deals with such cases.

Object Provisions under Sections 24, 25, 26 of the Hindu Marriage Act, 1955; Sections 18, 19, 20 and 22 of the Hindu Adoptions & Maintenance Act, 1956; and Section 125 Criminal Procedure Code, 1973 as well as similar provisions in other enactments, indicate a definite intention of the Legislature to project and pursue a public policy against vagrancy. 1 Neither by forced separation, nor by staying the proceedings under the Hindu Marriage Act, 1955 or any other similar provision, 1

Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66) DLT 460

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hunger is stopped. Hunger does not breed reform, it breeds madness and all the ugly distempers that make an ordered life impossible. Similarly nor the needs of clothing and shelter are suspended during the stay. Consequently, complementary moral and legal obligation on the husband to support his wife does not cease to exist, by staying the proceedings. Section 24 and other similar provisions just recognize and enforce this obligation. Court dealing with matrimonial matters while staying proceedings and while refusing to allow defence, are not enforcing this obligation. They are just enforcing rules of equity. Equity acts on the conscience and conduct of a person who is guilty of neglecting his family, wife and children, is so unconscionable that the court feels that he should not be allowed to pursue his case. 1 Hindu Marriage Act, 1955 is a socio-welfare legislation and is intended to protect the women and children whose very existence is threatened because of non-availability of requisite means. Extent of their destitution compels them to take recourse to process of law founded on dis-reformative legislative. To deny an interim protection which the applicant may be intended to as a final relief in the petition would be a approach which would decimate the very legislative purpose behind this legislation. The legislative intend to protect the right of maintenance is unambiguously codified in the language of Section 18 and 20 of the Act. Absence of a specific provision for grant of maintenance pendente lite would no way exclude the power of the Court to grant such a relief depending on the facts and circumstances of each case. It would amount to frustrate the very legislative intent behind these provisions if the interim maintenance is to be declined to the wife or the children in face of the provisions of Section 18 and 20 of the Act. It will not only be unfortunate but even with respect illogical to hold that the grant of maintenance pendente lite is not permissible under the provisions of this Act. A child who approaches the Court for grant of maintenance under the provisions of this Act would not be even able to contest and take the suit instituted to its final culmination if he or she was not granted interim maintenance, particularly when the application satisfied the basic ingredients spelt out by the Legislature for the grant of such relief finally. 2 It is a settled principle of law that a relief which cannot be granted while passing the final decree cannot be granted by way of interim relief in those proceedings, but converse thereof is not true. 1

2

Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66) DLT 460. Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H.

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Depending on the facts and circumstances of given case, the Court would grant interim order if such relief can be granted to the applicant upon final determination of the matter in issue. The provisions of Section 18 and 20 Hindu Adoptions & Maintenance Act, 1956 have to be given a wider meaning so as to provide interim maintenance pendente lite by necessary implication. These provisions do not prohibit or exclude or any settled principle the jurisdiction of the Court to entertain and decide an application for interim or maintenance pendente lite. The Court would normally exercise its inherent powers to aid the ends of justice and to achieve the object of legislation. The exception being exercise of such inherent powers, it should not be in conflict with or destroy the intents behind the substantive provisions of the law or code, which governs and control the matter under adjudication. 1

Appropriate forum A petition seeking interim maintenance has to be filed by the wife or the children under Section 18 of Hindu Adoptions & Maintenance Act. If a divorce petition or any other petition contemplated under the Hindu Marriage Act is filed, then the interim maintenance can only be granted under Section 24 of the Hindu Marriage Act and if a decree is finally passed in that event the party who is entitled to claim maintenance can file a petition under Section 25 of the Hindu Marriage Act. There is no provision is law enabling the claim of maintenance under Section 151, Civil Procedure Code. 2 However another view is that power to grant interim maintenance is incidental and ancillary to the substantive relief of maintenance envisaged in section 18 of the Act and if the ends of justice so warrant the court is competent to grant it in a suit for maintenance. 3 For more cases see under Inherent Powers.

Conditions for granting maintenance Expression ‘any proceedings under this Act’ appearing in Section 24 of Hindu Marriage Act, 1955 covers the proceedings under Section 25 thereof. Section 25 contemplates that an order for permanent alimony can be made at the time of the passing of any decree under the Act or any time thereafter. Now, if a spouse has to make an application after any decree under the Act has been passed and has no sufficient means of his/her own, such spouse has to be provided for prosecuting the 1 2 3

Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H. Avula Subrahmanyam vs. Avula Rama Devi, II (2000) DMC 71 AP. Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993 (3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR 69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR 577.

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application for permanent alimony when the other spouse opposes any grant thereof. Any other construction will be narrow and will lead to frustration of the provision. Section 25 is a continuation of the main proceedings. Placement or numbering of the Section or the description of one set of documents as petitions and the other set as applications does not alter this position. The purpose or using the words ‘husband’ or ‘wife’ is to identify the position occupied by the parties in the main proceedings, and not to exclude ex spouses. 1

Effective date In one case the learned Magistrate had not given any specific reason for his direction for payment of interim maintenance from the date of filing of the application under Section 125 Criminal Procedure Code and not from the date of the application for interim maintenance or from the date of the order. Though the position was not disputed that the Magistrate had the competence to direct payment of interim maintenance from the date of filing of the application under Section 125, Criminal Procedure Code it was held that ordinarily the direction for payment of interim maintenance is either from the date of the order or from the date of application for interim maintenance. If the Magistrate considering the facts and circumstances of the case before him deems it just and proper to direct that interim maintenance should be paid not from the date of the order or from the date of application for interim maintenance but from the anterior date of filing of the application under Section 125 Criminal Procedure Code he should discuss the reasons for such direction. This will not only convince the parties that the jurisdiction vested in him has been exercised properly and on sound judicial principles but it will also avoid criticism of arbitrariness against his order. While deciding a case it is important to determine whether the Court has the power/jurisdiction to grant the prayer of the applicant and it is equally important to exercise such power legally and properly. 2

Hardship The order for payment of interim maintenance allowance can be passed only in the case of great hardship. 3

Inherent powers There is no separate provision in the Hindu Adoptions and Maintenance Act, 1956 (for short the ‘Act’), for grant of maintenance 1 2

3

Dashrath vs. Saroj, I (1989) DMC 222 MP. Sabita Sahoo vs. Captain Khirod Kumar Sahoo, I (1991) DMC 307 Orissa. Hukum Singh vs. Satya Bhama, II (1995) DMC 502 MP.

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pendente lite. Section 18 of the Act, under which the case of the plaintiff in essence is based, only provides for maintenance to a Hindu wife, subject however to the two exceptions, carved out in sub-section (3) of section 18 of the Act, which extinguish the right of a Hindu wife to a separate residence and maintenance. Provisions of Sub-section (1) of the said section make it obligatory for the husband to maintain the wife during her lifetime. Her claim to maintenance is not forfeited even if she resides separately on account of any of the grounds mentioned in Subsection (2) of the said Section. In other words, the obligation to maintain the wife would still remain on the husband even though the wife might be living separately from the husband until it is proved that the wife is residing separately from the husband not under any of the circumstances enumerated under Sub-section (2) of the said Section or is unchaste or has ceased to be a Hindu by conversion to another religion. 1 That being the position in law, when it is imperative for the husband to maintain his wife, it does not stand to any reason that during the pendency of the suit for grant of maintenance, which may take decades to attain finality, the wife in the first instance be forced to face starvation and then subsequently is granted maintenance from the date of the filing of the suit, if she is fortunate enough to survive till then. I feel that such a view will be against the very intent and spirit of section 18 of the Act. Even though there is no specific provision in the Act for grant of maintenance pendente lite, the Court is amply empowered to make such orders as may be necessary in the ends of justice. It is a trite proposition of law that a court empowered to grant a substantive relief is competent to award it on interim basis as well, even though there is no express provision in the Statute to grant it. Power to grant interim maintenance is incidental and ancillary to the substantive relief of maintenance envisaged in section 18 of the Act and if the ends of justice so warrant the court is competent to grant it in a suit for maintenance. 2 In one case the petitioner had asked for permanent alimony under Section 37 of the Act and in case she succeeded in getting the order of judicial separation under Sections 22 and 23 of the Act in her favour and against the respondent, she would be entitled to the grant of permanent alimony. It was held that therefore, there should be left some security in the form of immoveable properties or otherwise which should be 1

2

Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993 (3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR 69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR 577. Neelam Malhotra vs. Rajinder Malhotra, ibid.

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sufficient and adequate enough for the grant of permanent alimony under section 37 of the Act and that the house of husband can be adequate security for the payment of permanent alimony to the petitioner in case it is granted by the Court because every Court has inherent power to grant relief during the pendency of the proceedings if the interest of justice so requires. 1 In the case of Rama Chandra Behera and others v. Smt. Snehalata Dei, 2 Orissa High Court held as under: “……..We agree that there may be cases where taking the extra ordinary aspects into consideration, the Court may proceed to exercise inherent powers to grant interim relief. It is not appropriate to set limitation on count’s inherent powers by interim relief. It is not appropriate to set limitations on court’s inherent power by indicating circumstances where it can be and where it cannot be exercised……” The power to make an interim order for maintenance pending an application under Section 18 of the Act is implicit in the section. Such a relief must be held to be ancillary and the power would be necessary corollary to the power of the Court to entertain the application for substantive relief. There have been a series of decision of this Court taking the aforesaid view which in my opinion is also in consonance with the spirit of the law. 3 However in a case involving Muslim Law it has been held that the nature of the suit for restitution of conjugal rights is different from the suit for maintenance which a Mohammedan is entitled to file under the Mohammedan Law. There is also remedy to the wife to claim maintenance under Section 125 of the Code of Criminal Procedure which in fact the non-applicant/wife has resorted to. Therefore the Civil Court had no jurisdiction to grant any interim relief by way of maintenance pending the decision of the case. 4

Necessity of detailed enquiry A detailed inquiry is not contemplated while deciding an application for interim maintenance. Where the trial Court had gone into details about the dispute between the parties and about the source of income of both the parties, It was held that it had adopted a hyper1

2 3

4

Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185 Del. AIR 1977 Orissa 96. Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114 Orissa. Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13.

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technical attitude by stating that the affidavit filed in support of the interim application was not in first person but was in third person. It was held further that the learned Additional Session Judge had, therefore, rightly in interfered with the order and has assessed the grant of interim maintenance by adopting the correct approach. The learned Additional Session Judge had also observed that the application for interim maintenance was supported by an affidavit though the affidavit was in third person and not in first person but the husband has neither gives his own affidavit not has filed affidavit of any other person to support his contentions. Further It was held that in any case, it was not a fit case for interference by the High Court. In the very nature of things an order of interim maintenance has to be based on best judgment assessment and the High Court cannot substituted its own assessment in place of the assessment of the lower Courts unless such assessment is shown to be perverse or based on no material at-all. 1

Need for liberal approach Wife without paying any Court-fees or bearing out any expenses of the litigation only on a simple application could have been granted the maintenance under Section 125 of the Criminal Procedure Code by the Criminal Court. It is also no more in dispute that pending decision of the substantial application under Section 125 of Criminal Procedure Code, the Court has all power to grant the interim maintenance to the wife also. In the context of this legal position and keeping in view the benevolent provisions of the maintenance to be granted to the wife, it was held that the Court should have been liberal in their approach while dealing with the application for grant of interim maintenance and should have made justice-oriented efforts and the technicalities if any comes in their way to grant interim maintenance, as it is sought to be raised by the husband than those should have been excluded or given go-by in view of the provisions as contained Article 21, Article 39-A of the Constitution as well as the provisions as contained in the Act and Order 3 of the Civil Procedure Code. 2

Powers under Criminal Procedure Code, 1973 There is no express provision in the Code which authorises a Magistrate to make an interim order directing payment of maintenance pending disposal of an application for maintenance. The Code does not also expressly prohibit the making of such an order. In order to enjoy the

1 2

Purushottan vs. Jayanti Bai, I (1992) DMC 266 MP. Amankumar Latibhai Parekh vs. Pritiben Amankumar Parekh, II (2000) DMC 433 Gujarat.

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fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, concidetur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. Having regard to the nature of the jurisdiction exercised by a Magistrate under Section 125 of the Code, it was held that the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to the pending final disposal of the application. 1 It is the duty of the Court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common 1

Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984: 1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR (SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160: 1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2) Scale 697: 1986 Pat LJR (SC) 6.

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that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, concediture et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order. Such an order may also be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the respondent is heard. If a civil court can pass such interim orders on affidavits, there is no reason why a Magistrate should not rely on them for the purpose of issuing directions regarding payment of interim maintenance. The affidavit may be treated as supplying prima facie proof of the case of the applicant. If the allegations in the application or the affidavit are not true, it is always open to the person against whom such an order is made to show that the order is unsustainable. 1 A bare perusal of the provision of Section 125 Criminal Procedure Code spells out that there is no specific provision for awarding interim maintenance pendente lite. However, the Court, under the facts and circumstances of the case, is not lagging behind in suitable cases to pass such an order keeping in view the object of Section 125 1

Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984: 1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR (SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160: 1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2) Scale 697: 1986 Pat LJR (SC) 6.

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Criminal Procedure Code that the proceedings for maintenance under Section 125 Criminal Procedure Code are to prevent vagrancy by compelling a person to support his wife, children or parents as the case may be. 1

Pauper wife When wife is declared to be pauper by the court but maintenance denied, such order is patently inconsistent and wife entitled to maintenance. 2

Power under Section 151 Civil Procedure Code The nature of the suit for restitution of conjugal rights is different from the suit for maintenance which a Mohammedan is entitled to file under the Mohammedan Law. There is also remedy to the wife to claim maintenance under Section 125 of the Code of Criminal Procedure which in fact the non-applicant/wife has resorted to. Therefore the Civil Court had no jurisdiction to grant any interim relief by way of maintenance pending the decision of the case. 3

Power under Hindu Marriage Act, 1955 No doubt Section 24 unlike Section 26 does not expressly provide that the Court may pass orders for interim maintenance/expenses of the proceeding from time to time. But there is no express or implied bar in the provision for exercise of such jurisdiction in a deserving case. Therefore, it will neither be legal nor just and proper to limit the wide discretionary power conferred on the Court by holding that the Court has no power to modify or vary its order awarding interim maintenance even on proof of changed circumstances. 4

Quantum Where the High Court fixed up a sum of Rs. 3,500/- and It was held that that it is far too low. The wife had claimed that at least a sum of Rs. 10,000/- should be granted by way of interim maintenance as she had not only to maintain herself but to bring up the only child in the standard in which child of a D.I.G. has to be brought up. The husband submitted that the entire amount which he gets is by way of salary only and the take of amount cannot exceed Rs. 16,000/-. This was disputed by 1 2

3 4

Hemlata vs. Ram Nihore, I (1991) DMC 546 MP. Lata alias Hemlata vs. Civil Judge, Bulandshahr, AIR 1993 All 133: 1993 All LJ 510: 1992 All CJ 933: 1992 All WC 1878. Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13. Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491 Orissa.

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saying that the respondent is getting other income by way of house rent, etc. In this background the Supreme Court permitted the wife to prove all such facts for a decision at the final stage when the Court will be in a position to fix the sum which in the circumstances be reasonable to be given by way of maintenance to the wife/appellant and the child. But at this stage the Supreme Court deemed it sufficient to fix a sum of Rs. 6,000/- as interim maintenance in place of Rs. 3,500/-. This enhancement will work from 1 st July, 2000. It was however made clear that the High Court shall not in any way be influenced by that amount in fixation in the sum at the final stage as the Supreme court was not fully in possession of the materials and the documents to ascertain the exact amount of income of the respondent. Hence, when final amount is fixed the High Court will certainly look into the other aspects of the matter. 1

Scope of adjudication The appellant filed a petition for judicial separation and other reliefs. In the said petition, the appellant claimed interim maintenance. The Family Court partly allowed the application to the extent of the claim of interim maintenance in respect of the two minors daughter. As a counter-blast the respondent filed a petition in the Family Court for declaration that the marriage with the appellant was nullity. Both the petitions— one filed by the appellant and the other by the respondent were yet to be decided on merits by the Family Court. Under the circumstances, it was held that it was not appropriate for the High Court to record any concluded opinion about the legal position of the marriage between both the parties. 2 In a case under Section 125, Criminal Procedure Code it was held that the Trial Court is to take prima facie views of the mater and it is not necessary for the Court to go into the matrimonial dispute between the parties in detail. 3

1

2

3

Shivani Chattopadhyaya vs. Siddarth Chattopadhyaya, I (2001) DMC 57 Supreme Court. Madhavi Ramesh Dudani vs. Ramesh Dudani, I (2000) DMC 692 Supreme Court. Jagdish Kuar @ Rama vs. Vijay Kumar, I (2000) DMC 703 P&H.

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Chapter 4

Disabilities depriving maintenance SYNOPSIS Introduction....................................136 Abandonment of claim ...................137 Adultery ..........................................137 Agreement to live separately ..........142 Annulment of marriage ..................142 Cancellation ...................................143 Co-habitation by divorced wife ......143 Conduct of wife ..............................144 Consent to live separately ..............147 Decree for restitution of conjugal rights .......................................................147 Demand of separate residence .......150 Dependence on parents ..................150 Dependence on parties ...................150 Dispute about validity of marriage 151 Divorced wife .................................152 Earning wife ...................................154 Effect of caste .................................154 Explanation for living separately...155 Fixed properties .............................155 Illegitimate child ............................156 Illegitimate wife .............................156 Independent income of wife ...........157 Inherited fixed assets......................159 Invalid marriage ............................160 Justification to live separately .......161

Legitimacy of child ........................ 163 Living in adultery .......................... 165 Living separate by mutual consent 166 Living with father .......................... 167 Maintenance by others .................. 167 Necessity of consummation of marriage ....................................................... 168 Nullity marriage ............................ 168 Ornaments ..................................... 169 Ownership of property................... 169 Paternity of child ........................... 170 Pre-existing order.......................... 170 Prior marriage .............................. 170 Proof of divorce ............................. 170 Proof of marriage .......................... 171 Refusal to co-habit......................... 174 Restitution of conjugar rights ........ 147 Right over property ....................... 184 Second marriage............................ 184 Second wife .................................... 190 Sufficient income ........................... 191 Temporary Employment ................ 191 Unproved illicit relation ................ 192 Unreasonably attitude ................... 193 Validity of marriage ...................... 193 Working wife.................................. 200

Introduction Different provisions of the various Acts governing personal laws provide for maintenance pendente lite as also permanent maintenance or alimony. These provisions refer to various factors, which have to be

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considered by the courts. Some of these factors are the income, status and conduct of the parties. These factors as interpreted by court as also section 18 of Hindu Adoptions & Maintenance Act, 1956 lays down the circumstances in which the spouse shall not be entitled to maintenance. This chapter deals with such disabilities, which affect the grant of maintenance.

Abandonment of claim Simply because the wife has not claimed maintenance for a long period, it does not mean that she has completely abandoned her right or voluntarily given up her right to claim maintenance. In her application she pleaded that she has no other source of income and she is unable to maintain herself. She might be living with her parents to the utter humiliation of other ladies and without any courtesy and respect which a daughter is entitled to in her parental house if she is living quite happily and peacefully with the husband, with the only fond of reunion. But when all her hopes are shattered away, and when there is no other source of income and when she feels herself burdensome to her parents or brothers, she has approached the Court claiming maintenance. Apart from that, Section 125 Criminal Procedure Code has not restricted the period of limitation to claim maintenance. When the statute has not prohibited any wife to claim maintenance with any period of limitation, the petitioner is not entitled to plead that she has waived her right to claim maintenance due to the long lapse of 10 or 12 years after she left his house. Due to the changed circumstances in her parents house, her parents may not be willing to maintain her and they may not be in a position to maintain her since other children have grown up and some other problems might have cropped up in her family. Under these circumstances, the petitioner is not entitled to raise the plea that the respondent has waived her right to claim maintenance after a long lapse of 12 years. 1

Adultery The word “adultery” has been considered in many decisions since a century. The words “is living in adultery” in Sub-section (4) of Section 125 Criminal Procedure Code would not take into their fold stray instance of lapses from virtue, it would not also mean that the wife should be living in adultery on the date of the petition. The proper interpretation would be that there should be proof of adulterous living shortly before or after the petition, shortly being interpreted in a reasonable manner viewing it in the light of the face of the case. 1

Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP.

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Kanaasami Pillai v. Murugamal, 1 suit was filed in 1887 by a Hindu wife against her husband and a decree for maintenance was obtained and the judgment-debtor sued to have the decree set aside, alleging that his wife had since committed adultery and given birth to an illegitimate child. The wife denied adultery and stated that her husband had become reconciled to her and that the child was legitimate. But is was found that the case of the judgment-debtor was established and that defendant’s misconduct had been recent, open and continuous. In those circumstances the court set aside the decree passed in the previous suit granting maintenance and held that the defendant was not entitled even to a bare maintenance. In Kista Pilia v. Amirthammal, 2 Panduranga Row, J., observed thus: “Emphasis no doubt to be laid on the words ‘living in adultery’. in other words, as was pointed out by the Bombay high court in re Fulchand Maganlal AIR 1928 (52) Bombay. 160 the clear implication from the words used by the legislature in this section (section 488 of the old criminal procedure code) is that, unless the wife is actually living in adultery at or about the time of the application, she is not disentitled to obtain maintenance. it is nowhere said in the section, and there is no need to introduce additional words therein, that living in adultery must be in the house of adulterer. the words “living in adultery” are, in my opinion, merely indicative of the principle that occasional lapses from virtue are not a sufficient reason for refusing maintenance. continued adulterous conduct is what is meant by “living in adultery”. the question, therefore, for the magistrate to decide in this case was whether there had been such adulterous conduct on the part of the petitioner at or about the time of the application, that is to say, shortly before or shortly after the application was made, interpreting the word ‘shortly’ in a reasonable manner……… my opinion is that in a case of claim for maintenance like this, the “respondent (husband)” who puts forward a charge of “living in adultery” against the petitioner (wife) as his only defence to the claim for maintenance, ought to begin his case, and the petitioner against whom the charge is made ought to have been an opportunity of adducing rebutting evidence.” In M.A. Mya Khin v. N.N. Godenho, 3 it was held that words “living in adultery” in Section 488(5) denoted a continuous course of conduct and not isolated acts of immorality. One or two lapses from 1 2 3

1896 ILR 19 Madras 6. 1938 Madras Weekly Notes (Crl.) 145 AIR 1936 Rangon 446.

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virtue could be acts of adultery, but would be quite insufficient to show that the woman was living in adultery, which means that she must be living in the state of quasi-permanent union with the man with whom she is committing adultery. Further, it has been pointed out that there is a great distinction between the words ‘committing adultery’ and ‘living in adultery’ and that the ratio is that a solitary lapse from virtue, as distinguished from contumacious immoral conduct, should not be a ground for denying maintenance. The same court in M.A. Thein v. Maung Mya Khin, 1 observed that the phrase “living in adultery” refers to course of guilty conduct and not a single lapse from virtue. It was held that the fact(herein) that a child was begotten when the husband could not get access to the wife showed that the wife must have been guilty of adultery on more than one occasion and therefore she was not entitled to maintenance, apparently on the presumption that it is extremely rare that conception happens after one solitary intercourse. Ramaswami, J. in M. Kanniappan v. Akilandammal, 2 observed that occasional lapses from virtue are not a sufficient reason for refusing maintenance and that the continuous adulterous conduct at or about the time of the application is what is meant by “living in adultery” and the court may in its discretion refuse to grant the allowance in cases where, apart from the fact that living in adultery in the sense of a course of continuous adulterous conduct has not been proved, there may exist circumstances which would justify such refusal. Regarding the interpretation of the term “living in adultery”, after referring to the various decisions, the learned Judge observed as follows: “On as analysis of the case-law and the proposition deducible there from, the conclusion of the learned Chief Presidency Magistrate granting maintenance on the ground that though and adulterous conduct on the part of the petitioner has been proved, it has not been further proved that she was living in adultery at the time of the petition, cannot be upheld.” Pursuant to the above observation, the learned Judge set aside the finding of the Magistrate and ordered for a further enquiry since the parties in that case had not come to grips on the point which should not be proved and rebutted in regard to the award of and withholding of maintenance and since they might also like to adduce further evidence in support of their respective contentions. 3

1 2 3

AIR 1937 Rangoon 67. 1953 Madras Weekly Notes (Crl). 48. M. Kanniappan v. Akilandammal, 1953 Madras Weekly Notes (Crl). 48.

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In S.S. Manickam v. Arputha Bhavani Rajan, 1 the facts were: the wife was living in adultery with her husband’s brother. Many letters written by the wife to her paramour were marked. One of the letters disclosed that she conceived through R.W.2 which had resulted in the birth of her second child, now alive. The learned Judge observed that the temporary cessation of relationship between the respondent and her paramour cannot be said to be due to the fact that the respondent has returned to a life of purity or that she has turned a new virtuous life…… Further more, there was no evidence that she ever repented or attempted to obtain any pardon from her husband. It was finally concluded by observing that the petitioner had established that the respondent was leading a continuous adulterous life and also was living in such adultery even at or about the filing of the application for maintenance. It is not necessary that the wife should live in adultery as on the date of the petition. It is the evidence as a whole that has to be taken into consideration. In Mariyumma v. Mohd. Ibrahim, 2 it was observed: “Section 125(1) of the new Code obliges a person who refuses or neglects to maintain a woman who has his wife and who had been divorced to maintain her if she is unable to maintain herself. Such obligation is to last unless she remarries. The scope of the term “wife” is enlarged to take in the case of such a woman and this is by Explanation (b) to Section 125(1). Explanation (b) to that Subsection reads thus: “Explanation:— For the purposes of this Chapter:— (a) …………………… (b) “wife” includes a woman who has been divorced by, has or obtained a divorce from , her husband and has not remarried. The effect of the Explanation is evidently to read the term ‘wife’ in Chapter IX of the Code as meaning not only the wife as generally understood but also a woman who has been divorced but who has not remarried. In may be noticed that Section 125(1) deals with the obligation of a “person” and not of a husband or of a father or of a son. The scope of the Explanation is not to create a jural relationship between the divorced woman and the erstwhile husband. No new obligation outside the scope of the Code is sought to be imposed either on the divorced woman or her erstwhile husband by reason of the Explanation. The object of the Explanation is only to enable such a divorced woman to claim maintenance from her erstwhile husband until her re-marriage. The very object of the provision in Section 125 of the Code is to 1 2

1980 Crl.LJ. 354. AIR 1978 Ker. 231.

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provide for a minimum obligation on the part of a person to maintain his wife, children, parents and his divorced wife who is not remarried under certain circumstances.” A woman whose martial tie does not subsist cannot be guilty of adultery much less can she be said to be living in adultery. She may live a promiscuous life, but that would not render her guilty of adultery, for ‘adultery’ is a term that denotes an offences against the institution of marriage. It is only under the inclusive definition of “wife” in Section 125(4) the divorce is entitled to claim. When the “wife” includes “woman” who has been divorced, the incidents that accrued to the term “wife” also must follow. A divorcee cannot take advantage of the inclusive definition of “wife” and can claim maintenance even though she was living in adulteries after the divorce to the knowledge of on and all. The other incidents and the liabilities that have to be attached to the term “wife” shall also follow in the event of claiming maintenance from her former husband. A divorcee cannot commit an offence of adultery as such, but if we take into consideration the inclusive definition and if we give her the status of wife for the limited purpose of claim. There is no difficulty to extend the same analogy to the offence that has been committed by her which may attract the ingredients of adultery, if she was not divorced. If the divorcee has to be treated as a wife, her living in adultery after the divorce also has to be taken into account. There need not be a specific provision that the divorcee is not entitled for maintenance, is she lives in adultery. What considerations have to be taken into account by applying Section 125, 126 and 127, Criminal Procedure Code with regard to wife also, have to be applied in the case of a wife who claims the benefit or the advantage that accrued to her after the divorce, by virtue of Explanation (b) to Section 125, Criminal Procedure Code. When the inclusive definition is there and the right to claim arose under the inclusive definition and the wife claimed right on that basis, the offences which she committed will generally fall if she was treated as a wife also have to be taken into consideration. 1 If the wife was living in adultery and continues to live in adultery even after the divorce, she is not entitled to claim maintenance on the ground that she has not remarried. The legislature never contemplated that what normally a wife is not entitled, would be given to the divorce the benefit under the provision of Section 125, Criminal Procedure Code. If a divorcee who is leading a promiscuous life approaches the court for maintenance, she is not entitled for maintenance on the basis of the inclusive definition of “wife”. What normally could not have been

1

Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP.

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granted in the normal course to a wife, could not be expected to be granted to a divorced wife in whose favour a limited benefit has been conferred under the inclusive definition of Section 125 Explanation (1) (b) of the Criminal Procedure Code. 1

Agreement to live separately In one case the wife had launched the criminal prosecution against the husband for the offence of bigamy. That case was dismissed as she could not produce evidence. Thereafter the husband filed a petition for dissolution of marriage alleging unchastely to the wife shows that she was subjected to cruelty. Having alleged unchastely to the wife, he failed to substantiate that ground. It was held that even assuming that the finding of the Civil Court is binding, the finding is that the wife had deserted the husband for more than three years prior to the presentation of the petition in pursuance of an agreement, with her consent, that may be a ground for dissolution of marriage, but does not afford a ground for refusing award of payment of maintenance to the wife from the date of the petition. The act of living separately is not by mutual consent when as per agreement, the mutual consent is only for taking divorce. In the absence of any allegation that the wife had means to maintain herself, it was held that the liability of the husband to maintain the wife is not discharged. 2 Refusal by the Courts to entertain the application of the applicant on the ground that she had accepted a sum of Rs. 1500/- as full and final settlement of her claims cannot be upheld. 3

Annulment of marriage The right of the wife to maintenance depends upon the continuance of her marriage status and once the status of husband and wife is declared to be null and void, the effect would be the same as in the case of void marriage under Section 11 of the Act. The legislature has given the benefit of the provisions of Section 125 Cr. P.C. to a divorced woman as long as she did not remarry by including Clause (b) of the Explanation, but, not such provision has been brought in so as to apply in the case where the marriage is declared null and void. The legislature decided to bestow the benefit of the section on a illegitimate child by express words, but, none are found to apply to a de facto wife where the marriage is void, ab initio or voidable and declared void by a decree of nullity. The benefit of maintenance under Sub-section (1)(a) is 1 2 3

Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP. K. Ramakrishna Reddy vs. T. Jayamma, I (1992) DMC 146 AP. Molyabai vs. Vishram Singh, II (1992) DMC 33 MP.

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available only if the applicant is the wife of the person concerned. Therefore It was held that the distinction drawn by the learned Magistrate that the marriage in the instant case being voidable, the wife was entitled to get the maintenance even after the decree of nullity was wholly erroneous in law. He should have given the effect to the decision of the Civil Court and on the basis of that, the proper course was to cancel the order of maintenance. 1

Cancellation The order of cancellation under Sub-section (2) of the Section 127 Cr. P.C. normally is effective prospectively. The language of Subsection (2) of Section 127 empowers the Magistrate to cancel or vary the order according to the decision of the competent Civil Court and till then the order passed by him remains effective. So far the language used in the provision, was stated that the order that may be passed under Subsection (2) of Section 127 shall be prospective in operation. 2

Co-habitation by divorced wife The normal rule for a wife is to live with the husband. It is the husband’s right to have her company and, therefore, a corresponding liability of the wife to fulfil that obligation. This also is confined to a wife properly so-called, but in the case of a divorced wife, this normal assumption can never be invoked. She, from the very nature of severance of the bonds of marriage, expected to live separately and the question of consent or no consent in the matter of separate residence does not stand envisaged or conceived. 3 While making provision for this third part of sub-section (4), the Legislature was carving out an exception to the normal situation. It, therefore, provides that a wife who is normally expected to stay with the husband under the common roof and thereafter claim maintenance will not be entitled to claim maintenance if the common roof is not shared by them because of their mutual under standing or contract or consent. To me it appears that like the second part of sub-sec. (4), this third part is also confined to the wife proper and not to a divorced wife. The third part pre-supposes as a necessary condition the normal situation of cohabitation between the male and the female, who are tied together by marital bonds. While dealing with an exceptional special situation the Legislature provides that if this normal cohabitation is avoided by mutual consent, then that mutual consent will go to rob the woman of her 1 2 3

Madan vs. State of Rajasthan, I (1993) DMC 71 Raj. Madan vs. State of Rajasthan, ibid. Natvarlal Jekisandas vs. Bai Girja, I (1984) DMC 160

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normal right of maintenance provided for and protected by sub-sec. (1) of Section 125 of the Code. This is the inevitable interpretation of the third part of sub-section (4) of Section 125. 1 Part 3 of sub-sec. (4) of Section 125, namely, “if they are living separately by mutual consent” is confined to the case of a wife proper, and her husband and it has no application to the case of a divorced wife vis-à-vis her ex-husband. 2 The Code is complete on the topic and any defence against an order passed under Section 125, Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Sections 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. A statutory order can ordinarily be demolished only in terms of the statute. That being absent in the present case the Magistrate will execute the order for maintenance. 3

Conduct of wife In England in one case a question arose in regard to section 3(1)(g) of the Domestic Proceedings and Magistrates’ Court Act 1978 which contained a provision which, although differently worded was of the same effect. This provision provided the following as one of the matters to be taken into consideration: ‘any other matter which in the circumstances of the case the court may consider relevant, including, so far as it is just to take it into account, the conduct of each of the parties in relation to the marriage’. In Wachtel v. Wachtel, 4 Ormord, J. said:

1 2 3

4

Natvarlal Jekisandas vs. Bai Girja, I (1984) DMC 160 Natvarlal Jekisandas vs. Bai Girja, ibid. Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: AIR 1979 SC 442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377: 1979(1) APLJ 31 (1973) 1 All ER 113 at 119.

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“The court can only approach this issue in a broad way. It should bear in mind the new basis of divorce which recognises that, generally speaking, the cause of breakdown are complex and rarely to be found wholly or mainly on one side, and that the forensic process is not well adapted to fine assessments or evaluations of behaviour, and that it is not only conduct in relation to the breakdown which may have to be considered. Conduct subsequent to the separation by either spouse may affect the discretion of the court in many ways, e.g. the appearance of signs of financial recklessness in the husband or of some form of socially unacceptable behaviour by the wife which would suggest to a reasonable person that in justice some modification to the order ought to be made. In my experience, however, conduct in these cases usually proves to be marginal issue which exerts little effect on the ultimate result unless it is such both obvious and gross.” In delivering the judgment of the Court of Appeal in the same case Lord Denning MR, picking up the words of Ormord J. 1, said: ‘There will be many cases in which a wife (although once considered guilty or blameworthy) will have cared for the home and looked after the family for very many years. is she to be deprived of the benefit otherwise to be accorded to her by Section 5(1)(f) because she may share responsibility for the breakdown with her husband ? There will no doubt be a residue of cases where the conduct of one of the parties is in the judge’s words (1973) 1 All ER 113 at 119, “both obvious and gross”, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provisions merely because of what was formerly regarded as guilt or blame.’ In Armstrong v. Armstrong,2 a decision of the Court of Appeal, which was cited by Wood J in Kohosinski v. Kokosinski,3 Buckley LJ said: ‘The expression “obvious and gross”, as I ventured to say in the course of the argument, obviously is not a definitive expression. The Court of Appeal there, I think, indicated clearly what they had in mind by the use of those words, which they borrowed from the judgment of Ormrod (in Wachtel) which was there under appeal. They said in the judgment of the court that it was not right for a court before whom an application came under Section 4 of the Matrimonial Proceedings and Property Act, 1970 to 1 2 3

(1973) 1 All ER 829 at 835-836 (1974) 118 SJ 579. (1980) 1 All ER 1106 at 1116.

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conduct a post-mortem into the matrimonial affairs of the parties; but that, if the conduct known to the court was such that it would be repugnant to anyone’s sense of justice to say that it ought not to be taken into account in considering what financial provision should be made by one party for another, it was proper that it should be taken into account.’ Stephenson LJ., in the course of is judgement said: ‘On the first point as to the wife’s conduct, bearing in mind what was said by Ormrod J and by Lord Denning MR in giving the judgment of this court in Wachtel v. Wachtel, 1 and what was said by Cairns and Roskill JJ in Harnett v. Harnett, 2 the question we have to ask ourselves seems to me to be: Would it offend a reasonable man’s sense of justice that this wife’s conduct should be left out of account in awarding her maintenance by a lump sum out of the proceeds of this sale and that it should have no effect on the financial provision which the husband ought to be ordered to pay her ? Would it be inequitable or unjust to disregard her conduct?” The trial Judge had found that by far the greater burden of responsibility for the failure to start the marriage was on the wife, but decided that the conduct did not quite reach the pitch which would render it within the description in Wachtel v. Wachtel. On appeal Sir John Pennycuick 3 held: ‘I do not think the Judge was right when he held that the wife’s conduct in this matter, as he found it as a fact, was not obvious and gross misconduct in relation to this marriage. I find it difficult to think of any conduct more gross than totally to fail to set up any married life at all where it is not fault of anyone else, but for the reasons which the judge held to be predominantly her own fault. It seems to me that that was a gross and obvious misconduct and once that is accepted then the whole attack on the judge’s conclusion goes, though he may not have reached that conclusion be quite the right route. I suspect that the word “gross” has given rise to some misunderstanding in this connection, and that the word “gross” has been given an imputation of moral blame. In fact, I do not think the word “gross” really carries any sort of moral judgment. It means I think no more than “of the greatest importance.” Section 3 of the 1978 Act was concerned with the exercise of discretion, and once it is established that the facts are such that the case is capable of coming within the test set out in the cases above, the

1 2 3

(1973) 1 All ER 829. (1974) 1 All ER 764. Seee (1977) 2 All ER 705 at 711

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appellate court should not interfere with the discretion of the magistrate unless it is clearly satisfied that they were wrong. 1

Consent to live separately Right granted to the wife and children for maintenance under Section 125, Criminal Procedure Code is very serious and valuable right. There must be cogent evidence to show that this right had been given up by the wife or the child’s mother as the case may be. Husband has not stated about the differences between them which had made their living together impossible and therefore, document cannot be viewed as operating as mutual consent between them for their living separate. 2

Restitution of conjugal rights It is not expected, either by construction of the decree or according to custom generally prevalent among the Hindu that the wife herself would go and report to her husband at his house for restitution of conjugal right. The was, therefore, under legal obligation to take back the plaintiff as he was guilty of the withdrawing himself from the society of the plaintiff for which a decree for restitution of conjugal rights has been passed against him. 3 In this case instead of making any effect to obey the decree it appeared that the advocate for the defendant filed hazira in Court and on that date the Court passed an order that the present plaintiff did not turn up and therefore, she may execute a decree if she so likes. It was held that the oral evidence adduced on behalf of the defendant does not prove that there was any bona fide attempt by the defendant to bring the plaintiff to his house. The conduct of the defendant, therefore, amounts to abandoning the plaintiff without reasonable cause and against her will. In this view of the matter the wife is entitled to claim maintenance from the defendant. 4 The conduct of the parties would always be relevant in such cases because the rights and obligations of the parties to a marriage are mutual and reciprocal and where a party claims the right of maintenance, it is expected to discharge his or her martial obligations in a proper manner. A decree for restitution of conjugal rights against the petitioner may be a circumstance enabling the Court to judge the conduct of the parties, but there is no authority for the proposition that such a decree against the

1 2 3

4

Robinson vs. Robinson, 1 All ER 391 (CA): (1983) II DMC (BJ) 33. Harvinder Kaur vs. Paramjit Singh, 1999(1) HLR 260 P&H. Laxmi Sahunai vs. Maheswar Sahu, AIR 1985 Orissa 11: (1984) 1 Orissa LR 518: (1985) 2 DMC 176. Laxmi Sahunai vs. Maheswar Sahu, ibid.

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petitioner would be a complete bar to his or her claim for permanent alimony or maintenance. 1 The matter was considered by Balraj Tuli, J. as far back as 1974 in Atma Ram Sharma v. Manjit Rani alias Ram Murti 2 and it was held that when there was a decree for restitution of conjugal rights passed by a Civil Court in favour of a person against his wife which was not being complied with, the wife could not apply to the Magistrate for the grant of maintenance under Section 488 of Criminal Procedure Code (old Code). The Magistrate was not justified in granting maintenance allowance. Similar view was taken by K.S. Tiwana, J. in Surjit Singh v. Gurmel Kaur and others, 3 and Joginder Singh v. Dalbir Kaur alias Balbir Kaur. 4 Therefore ihas been held that the wife could not be allowed maintenance under Section 125 of the Code of Criminal Procedure for the simple reason that a decree for conjugal rights was passed against her which was not being complied with. 5 A wife, who during subsistence of marriage is disentitled to claim maintenance because of a decree for restitution of conjugal right on the ground of desertion against her, commits a wrong if she refuses to comply with the decree and, therefore, if after the dissolution of marriage because of her not complying with the decree for restitution of conjugal rights, she is allowed to claim maintenance, it would tantamount to allowing her to take advantage of her own wrong which law has always viewed with disfavour. It is no doubt true that the benign provisions of Section 125 Criminal Procedure Code was enacted to ameliorate the economic condition of neglected and discarded wives and the object was to prevent destitution and vagrancy. But if in spite of such statutory object, the claim of the wife for maintenance during subsistence of marriage can be defeated on the basis of a decree for restitution of conjugal rights on the ground of desertion, it does not stand to reason that she should be allowed to claim maintenance after the marriage is dissolved because of her flouting the decree for restitution of conjugal rights passed against her. 6 Another view is that even if decree for restitution of conjugal rights is not obeyed wife cannot be deprived of the maintenance 1

2 3 4 5 6

Ram Piari vs. Piara Lal P.C.S. Divisional Agriculture Officer, Patiala, AIR 1970 P&H 341: 1969 Cur LJ 959. 1974 Chandigrah Law Reporter 217 1977 PLJ 293. 1980 PLR 665. Piara Singh vs. Satwant Kaur, I (1989) DMC 472 P&H. Rabindra Nath Roy; In re:, II (1995) DMC 91 Calcutta.

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allowance. When these points were not considered such decision 1 is distinguishable. In this case it was not apparent from the material placed on record that after obtaining decree of restitution of conjugal rights, the revisionist moved any execution application for getting it executed. The appeal was dismissed and more than 20 months had passed but it did not appear that any step had been taken for getting it executed. In these circumstances it was held that it may be that decree for restitution of conjugal rights was obtained only with a view to deprive the wife from maintenance allowance to which she may be entitled. 2 In Sharadchandra Satbhal vs. Indubal Satbhal, 3 a Division Bench held that where on a petition by the husband for judicial separation under Section 10 of the Hindu Marriage Act on the ground that the wife had deserted the petitioner a decree for judicial separation is passed, the wife is not entitled to claim maintenance under Section 125 of the Criminal Procedure Code. When the Civil Court has determined the issue of desertion and held that the wife has left her husband without reasonable cause and against his wish and without his consent, it is plain and simple that she has refused to live with her husband without any sufficient reason, and therefore, the wife is not entitled to receive maintenance under Section 125. The fact that a decree for judicial separation has been passed in favour of the husband on the ground of desertion means that the wife is guilty of refusing to live with her husband. In another case the decree of divorce was obtained by the husband during the pendency of proceedings. On the date on which the application under Section 125 of the Criminal Procedure Code was made, the position that there was no refusal and neglect to maintain the wife on account of wife’s deserting the husband has been concluded by the decree for restitution of conjugal rights. Once one of the essential ingredients to be established under Section 125(1) was not shown to exist, the respondent could not have continued these proceedings. 4

Demand of separate residence In this case the submission was that a wife is entitled to demand her husband to provide a separate residence where both of them (and 1 2 3 4

1986 A.W.C. 398 Charan Singh vs. Jaya Wati, I (1996) DMC 169 All. 1978 Mh. LJ 123. Kalidas vs. Parvatibai, I (1985) DMC 511 Bombay; Rahimbi vs. Mohammed Rahimkhan, II (1985) DMC 56 Bombay: Ramesh Chandra Mishra vs. Kanchan Bala Mishra, II (1986) DMC 362 Orissa: Sukhminder Kaur vs. Sadhu Singh, I (1984) DMC 354 P&H.

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they alone) could live together and bring up a family of their own. No doubt that may be an ideal condition, but is one not always feasible and very often impossible, especially when the husband is not financially well off and has to look after his aged parents. Times are yet to come in our country when aged parents could be shoved off to infirmaries, be it that such days are signs of progress as some claim to be of retrogression as some other view it. In proceedings for the restitution conjugal rights, courts are to be guided by the fundamental and basic rule of matrimonial law that it is the right of each spouse to have the society and comfort, consortium of the other. The husband is entitled to it; equally so, the wife. So long as the residence of the aged parents of the husband under the same roof with him is not provocative of creating circumstances grave enough to subvert, the wife’s right to consortium of her husband, the court cannot accept the arguments regarding her right to separate residence with her husband away from his parents. 1

Dependence on parents In one case the wife was forced to life as parasite with her parents. She was forced to do agriculture work for her father. This was considered by trial court to be sufficient means of earning livelihood. This sort of reasoning and conclusion is nothing but the result of pervert way of looking at the life. It was held that the learned Magistrate ought to have realised that one does not live the life of parasite out of volition. The fact that she is required to live her life as destitute and if she helps in the agriculture work of her father, it can never be said that she had sufficient means to earn her livelihood. The fact that she is forced to go to her parents’ place and live there as parasite itself should be considered sufficient to hold that she was unable to maintain herself. 2

Dependence on parties The wife is required to aver that (i) she is the wife of the nonapplicant; (ii) that the non-applicant has sufficient means, yet he is refusing or neglecting to maintain her; and (iii) that she herself is unable to maintain herself. However, the Revisional Court completely misdirected itself in considering the recitals in the application for maintenance filed by the wife under Section 125 of Criminal Procedure Code as well as the statements made by her in her deposition. The applicant in her deposition had stated that “she was not doing any work and she was completely dependent upon her parents”. It was held that 1

2

K. Kanthimathi vs. S. Parameswara Iyer, AIR 1974 Kerala 124 (DB): (1974) 1 Ker LJ 22. Bai Laxmiben vs. Bharatbhai Vechatbhai Patel, I (1986) DMC 129 Gujarat.

Disabilities depriving maintenance—Dispute about validity of marriage 151

this statement clearly demonstrates that the applicant in no uncertain terms deposed that she does not have any means to maintain herself and is totally depending upon her parents for her maintenance. It was further held that the Revisional Court completely misread the deposition of the applicant and further came to a wrong conclusion that the applicant has not specifically complied with mandatory requirement of Section 125 of Criminal Procedure Code. Therefore the impugned order was held to be misconceived and unsustainable in law. 1

Dispute about validity of marriage In this case the Public records including voters’ lists described them as husband and wife. The competent witnesses of the village of the wife as also the husband had supported the factum of marriage. Witnesses had also spoken about the reputation of the appellant being known in the locality as the wife of the respondent. It was held that these facts should not have been totally overlooked while considering the case of marriage. It is possible that on account of the lawyer’s mistake the appellant’s witnesses have not referred to the religious rites which might have been performed at the time of marriage. It is equally possible that the learned Magistrate while recording the evidence has not specifically recorded the details and has only indicated that witnesses have spoken to the fact of marriage. Since the form of marriage has not been found that traditional marriage according to Hindu law requires performance of certain religious rites, it was considered proper in the peculiar facts of the case to remit the matter to the learned Magistrate for a fresh inquiry at which apart from the evidence already on record both sides should be entitled to lead further evidence particularly in support of their respective stands relating to the factum of marriage. 2 It was further held that the role of the Court is not that of silent spectator or of a passive agency, when a dispute is brought before the Court, particularly of this type, where maintenance of a neglected wife or a minor child is in issue, the Court must take genuine interest to find out the truth of the matter. If the learned Magistrate had asked proper questions to the witnesses when they were before him and deposing about the marriage, the relevant evidence would have come one way or the other. It was also held that the duty of the lawyer appearing for the appellant also to have played his role properly at the right time. A lot of

1 2

Bhagirathibai @ Bhagwati vs. Ashok, II (1999) DMC 429 Bombay. Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC 765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985 Pat LJR 11: 1985(2) Rec Cr R 61

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time had been lost and if the wife was entitled to maintenance she had been deprived of it for all these years. 1

Divorced wife The disqualification attempted to put forward against wife was that after the order for restitution of conjugal rights she filed a petition and obtained an order for divorce from the husband. Such an argument is not available to the husband in view of the extended definition of ‘wife’ mentioned above. It is immaterial as to who moved for divorce. The extended definition includes within its ambit a lady, who has divorced by her husband as well as one who obtained a divorce from her husband on her own violation in spite of the opposition from the husband. If so, a divorce by mutual consent must also come within the provision and a wife who joined with the husband in effecting divorce also will come within that definition. In order to put forward a claim for maintenance as a divorced wife, it is immaterial how the divorce came into being. If she has no disability in claiming maintenance under any other provision, her claim must stand. 2 Originally, the Hindu marriage, succession, minority guardianship, adoption and maintenance were part of the Hindu Code Bill and later on they took statutory form by different Acts, but Legislative intention to provide maintenance to spouse even after divorce which is contained in Section 25 of the Hindu Marriage Act, has to be read into both the sections and provisions in both the Acts. Same Legislature cannot be imputed with two different intentions in respect of the same couple on the same question. Under Section 25 of the Hindu Marriage Act, if the provision regarding maintenance is to be applicable, both to a wife and a divorced wife, there is no reason why the same word “wife” which is used in Section 18 should not be read in the same manner because both these provisions deal with the question of maintenance between a husband and wife. Under Section 25 of the Hindu Marriage Act, there cannot be any doubt or dispute that the wife would necessarily include a divorced wife for the purpose of maintenance and alimony even through the section uses the word “wife” or “husband” and not “divorced wife” or “divorced husband” and it also provides for maintenance not exceeding the life of the applicant. Similarly, in Section 18 of the Hindu Adoptions & Maintenance Act, 1956, though the words 1

2

Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC 765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985 PatLJR 11: 1985(2) Rec Cr R 61 Mampekkattu Nanu vs. Mampekkat Vasantha, II (1986) DMC 109 Kerala.

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used are “wife and husband” the maintenance is provided by the husband during the lifetime of the wife. Thus, the scheme of both these sections is the same; the purpose is the same; the words used are the same. Therefore, when the word “wife” in Section 25 of the Hindu Marriage Act includes a divorced wife, so also in Section 18 of the Hindu Adoptions & Maintenance Act, the word “wife” has to be interpreted to mean a divorced wife. Any other construction would lead to anomalous and contradictory situations and orders. If the wife makes an application under Section 25 of the Hindu Marriage Act for maintenance even after divorce, that would be maintainable, but if she makes an application for the same purpose under Section 18 of the Hindu Adoptions & Maintenance Act, it would not be maintainable even though both the provisions have same purpose in mind and the same intention to provide maintenance to the wife. Therefore, it was held reasonable to hold that the words “wife” and “husband” are used to describe the relationship to provide for maintenance during the life-time of the wife and it includes a divorced wife and by doing so, there is no violation done of the language or the meaning because the meaning is always to be taken from the context and intention. For example, a married woman living happily with her husband with her husband can be held to be a widow on the question of succession to the property of her former deceased husband and by describing her as widow, there is no evidence done to her present marital status of having a husband and happily living with the husband because the meaning has to be given in the context of the purpose and the intention. Similarly, when a question of maintenance arises between a husband and a wife, it arises only in a situation where there are serious disputes between the husband and a wife and which may arise before divorce or thereafter and the Legislature makes the provision for the time.1 It is not every divorced wife who can claim maintenance under Section 125(1) of the Code. A woman who has been divorced by her husband is included in the first part of Explanation (b) to Section 125(1). She can claim maintenance under Section 125(1). It this category would, normally, fall the case of a Muslim women who has been unilaterally divorced by her husband in accordance with the Muslim Personal Law. This category may also include a woman who, under the customary law applicable to some Hindus, has been unilaterally divorced by her husband. The second category falling under Explanation (b) to Section 125(1), who can claim maintenance under the said section, consists of a woman who has obtained divorce from her husband meaning

1

Vihalal Mangaldas Patel vs. Maiben Vihalal Patel, I (1996) DMC 432 Gujarat.

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thereby that the wife has initiated proceedings for obtaining divorce from the husband. 1

Earning wife There is social and moral obligation of the husband to maintain his wife and child and not to leave them at the mercy of her parent. Where the wife is a qualified lady and even if she is making an attempt to earn some money to bring up her child in a better way, this would not be a factor which would disentitle her from claiming maintenance for herself as well as for her child from the husband because she is entitled to live the same lie in terms of social and financial status in which she would have enjoyed if the continued to live with her husband. Whether he was forced to leave the matrimonial home because of the cruelties of husband or was it her act of desertion is the matter which has to be decided by the Court at the time of final decision of the main petition. 2 In another case the wife filed the revision petition praying for enhancement of maintenance pendente lite as well as litigation expenses. It was not denied by the wife even in the revision that the husband was maintaining the minor child. She had also not disputed the fact that she was M.A. in Economics. In these circumstances, it was held that it is difficult to believe that the wife is not having any income whatsoever. Presumption of reasonable conduct and capacity to earn reasonably are equally applicable to either of the spouses to the marriage. There is an obligation on the part of the husband to maintain his wife but he certainly cannot ignore his other obligations and such maintenance cannot be at the cost of every other moral and legal duty which the husband may owe towards his minor child and his parents. 3

Effect of caste The claim of maintenance cannot be defeated on account of caste of the woman. This position remained unaffected by provisions of Hindu Adoptions and Maintenance Act, 1956. Concubine has a right to seek maintenance. A Brahmin woman and her illegitimate son of Sudra father are entitled to maintenance from the Estate after the death of father. 4

1

2 3

4

Bhagwan Raoji Dale vs. Sushma @ Nanda Bhawan Dale, 1999(1) HLR 579 Bombay. Prem Kumari vs. Om Parkash, I (2001) DMC 399 P&H. Kuldip Kaur @ Charanjit Kaur vs. Karam Singh, II (2000) DMC 691 P&H. Amireddy Raja Gopala Rao vs. Amireddi Sitharamamma, AIR 1965 SC 1970: 1965(2) SCWR 889: 1965(3) SCR 122

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Explanation for living separately In the face of explanation and the admission by the husband that he had contracted second marriage, the Judicial Magistrate was held to be legally in error in holding that the wife was living separately from the husband without sufficient reason. 1

Fixed properties In the normal course the Court should have granted maintenance to the wife also having regard to the earning capacity of the husband but what weighed in the mind of the Court was that there is a house in the name of the wife which has been sold for Rs. 2 Lacs and, therefore, according to the trial Court she is not without any income. The flat in was purchased in her name on the basis of the power of attorney but it does not show that it belongs to her. It is also not shown as to from where the assets have come to the wife for the purchase of the flat. It is admitted by the husband that he gave Rs. 20,000/- and the balance amount was spent by the father of the petitioner’s wife. Which money appeared to have been returned. It was held that at any rate the wife is without any income and it is the duty of the husband to provide maintenance to her in addition to the child. The wife had asked for Rs. 1,000/- per month for herself and the child Rs. 2,000/- for litigation expenses. Having regard to the fact that the respondent husband is also only drawing Rs. 2300/- it was held to be expedient in the interest of justice to direct the husband to pay to the wife Rs. 400/- as maintenance and Rs. 300/- as maintenance of the child already granted by the trial Court i.e. Rs. 700/- in all with Rs. 1,000/- towards litigation expenses. 2 Section 24 states that where in any proceedings under the Act, it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband order the respondent to pay to the petitioner the expenses of the proceeding and monthly, during the proceeding such sum as having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable. If the wife or the husband, as the case may be, has no independent income sufficient for her or his support and necessary expenses of the proceeding, the court can pass appropriate order having regard to the income of the spouses. It would be worthwhile to compare the provision in Section 24 with that in Section 25 dealing with permanent alimony and maintenance. That

1 2

Islam Bi vs. Nawab Khan, I (1992) DMC 270 MP. Indu Gupta vs. Sanjay Kumar Gupta, I (1992) DMC 164 Del.

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section requires the court to have regard to the income and other property of the spouses. It is significant to note that Section 24 refers only to income and not other property. Therefore, in considering a case arising under Section 24 of the Act, it is only the income and not other property which requires to the considered. 1

Illegitimate child The questions whether the one claimant was the married wife of the respondent and whether the other claimant was the legitimate or illegitimate child of the respondent, are pre-eminently questions of fact. The learned Magistrate after considering the evidence, as adduced by the parties, held that the appellant No. 1 was not the wife of the respondent. He further held on the basis of the evidence on record that the appellant No. 2 was the illegitimate child of the respondent. After considering the evidence on record it was held that the learned Judge of the High Court committed an error in making a re-assessment of the evidence and coming to a finding that the appellant No. 2 was not the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. 2

Illegitimate wife For a woman claiming maintenance under Section 488, Criminal Procedure Code it is essential for her to establish that she was the wife of the opposite party in accordance with the provisions of the personal or the Civil law applicable regarding the marriage between the parties. It follows, therefore, that what is contemplated by the term ‘wife’ referred to in Section 488, Criminal Procedure Code is legally wedded wife in accordance with the Personal Law of the parties or the Civil Law governing the marriage between the parties. It would not, therefore, cover the case of a women whose marriage with the respondent is void ab initio being in contravention of the personal or the Civil Law governing their marriage. A woman would be deemed to be a wife for the purpose of this section to be that woman who is a legitimate wife by reason of a valid marriage according to the law governing the parties. It the legislature had intended to give the benefit of this section for the grant of maintenance to all such woman who were not legally wedded wives but otherwise married to the respondent, then no distinction could 1

2

Hema vs. S. Lakshmana Bhat, II (1986) DMC 235 Kerala: 1985 Ker LJ 681: ILR (1986) 1 Ker 288: (1986) 2 Hindu LR 14: AIR 1986 Ker 130. Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986(1) Scale 603: 1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj LJ 788.

Disabilities depriving maintenance—Independent income of wife

157

have been made between the wife and the child, held entitled to claim maintenance by making a reference of entitlement to “legitimate or illegitimate child.” It becomes very clear from the expression used in the second part thereof were a reference is made to “legitimate or illegitimate child” who can claim maintenance under Section 488(1) of the Code. The legislature was clear in its mind to apply this provision in respect of child either legitimate or illegitimate born of a woman neglected or refused to be maintained by his or her father. If it was intended to include any illegitimate wife, the legislature could have said so, just as it said in respect of children. It follows therefore, that no illegitimate wife or a woman claiming to be the wife whose marriage is ex facie illegal can claim any maintenance under this section. 1 If it is held that any woman who has solemnized the marriage with the respondent would be deemed to be a wife for the purposes of this section, the same would amount to doing violence to the provisions of Section 488, Criminal Procedure Code and would also lead to disastrous results which would be against the public interest and the social object sought to be achieved by making a provision attaching sanctity to the institution of marriage. Law cannot be interpreted in a manner which leads to immorality by permitting the woman to lead immoral life with the hope that if subsequently deserted, they would be entitled to claim maintenance for leading immoral life with the man. 2

Independent income of wife Where income of wife is not proved to be less then the husband, the wife is not entitled to maintenance. 3 Where it was stated that the wife had completed her Law education and had started practice, it was held that no case was made out for interference with the quantum fixed either for the maintenance or for the expenses of the proceedings. It was further held that this was a clear case where the wife had no independent income sufficient for her support and the necessary expenses of the proceedings as contemplated by the provision of Section 24 of the Hindu Marriage Act. The husband has not come out with a definite case about his income and has merely tried to find fault with the finding of the learned trial Judge. Indeed, it is not even suggested that the wife, who had joined the legal profession last year, has independent income sufficient for her support and for the necessary expenses of the proceedings. Thus, having regard to the 1 2 3

Titroo vs. Mst. Morni, II (1988) DMC 162 J&K. Titroo vs. Mst. Morni, ibid Suresh Kumar vs. Kamaljit Kaur, 1985 (9) DRJ 68.

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income of the husband and the position of the wife, it was held that there is no reason to interfere with the findings of the learned trial Judge. 1 Normally, application under Section 24 of the Hindu Marriage Act, 1955 should be decided only on the bass of the affidavits but in the peculiar facts and circumstances of this case where both the parties have not placed the material on record for the just determination of the income of the wife and the husband, the matter required fresh determination and was therefore remanded. 2 The claim of the petitioner-wife for maintenance pendente lite was declined, primarily on the ground that she is earning a sum of Rs. 1500/-per month and, therefore, was not entitled to any maintenance. But it was held that the wife is entitled to maintenance pendente lite for maintenance of her two minor children, who were admittedly living with her. The husband is bound in law to maintain his minor children. He has sufficient means and, therefore, is liable to pay some amount for maintenance of the two minor children, but the wife is not entitled to any maintenance pendente lite as she was already earning a sum of Rs. 1500/-per month. 3 In another case, except the ipse dixit of the revision petitioner there was no proof forthcoming to show that the respondent is drawing salary of Rs. 1687.50 from her employment in a school. The wife denied the said payment of Rs. 1,687.50 by the school but she has stated that she is paid a sum of Rs. 20.- per day if she went to the said school to attend to the duties of an “Aya”. Therefore the contention of the revision petitioner that the respondent herein is living in affluent circumstances drawing a monthly salary of Rs. 1,687.50 is not entitled to any acceptance in this case was not accepted and it was held that the maintenance payable to the respondent by the revision petitioner and the order of maintenance passed against the revision petitioner cannot be cancelled under Section 127 of Criminal Procedure Code. 4 If a wife is being paid social security benefit or supplementary benefit, as the case may be, the amount could be recovered from the husband if he was in that country because after all it was the duty of the husband to maintain his wife and the child if they had no independent 1

2 3 4

Vinod Kumar Kehriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32 Bom: 1992 (2) Bom CR 648: 1993 (1) Civ LJ 854: 1993 (1) Cur CC 69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bombay 160. Sushma Bawa vs. Ravinder Nath, I (1992) DMC 455 P&H. Arti Chopra vs. Sudhir Chopra, I (1993) DMC 58 P&H. Saleem Basha vs. Mumtaz Begum, II (1999) DMC 206 Madras.

Disabilities depriving maintenance—Inherited fixed assets

159

income sufficient for their support and the necessary expenses of the proceedings. State funding of social security programme is at the cost of taxpayers’ money. If the husband is in that country where the wife is also living he can be burdened with expenses which the State is incurring for payment of social security benefit to his wife and child. Merely because husband is living in this country and the Government of a foreign country does not or is unable to enforce a claim against the husband, which it could have done in its own country, there is no reason why the husband living in this country should escape his responsibility and obligation imposed upon him under the law. Therefore the supplementary benefit or social security benefit conferred on a spouse in a foreign country should not be taken into consideration while deciding the application under Section 24 of the Act. Whatever amount is awarded to the spouse under this section, to that extent the social security benefit or supplementary benefit would abate, subject, however, to the condition that the balance of the income of the spouse in this country should not be less than the standard laid (not the amount) for grant of social security benefit or supplementary benefit allowable to the spouse in the foreign country. This would also be further subject to the condition that the claim of the spouse in this country as regards his expenses, is taken into account. 1 In another case it was claimed by the husband that the wife derives income from tuition and some knitting work which she does in addition. The mere fact that the income from the father’s shop is taken into account for deciding the means of the wife is sufficient to show that the finding on this question is vitiated. It was therefore held that that in these circumstance it is unnecessary to examine the other meagre sources mentioned by the husband which may have been adopted for the time being by the wife to save herself from starvation. This part of the order was therefore set aside. 2

Inherited fixed assets The property and income of the wife which can be taken into account under the Hindu Marriage Act is the property and income which is exclusively that of the wife. It is not proper to take into account the possibility of the wife inheriting property from her relation like the father. 3

1 2 3

Vijaylaxmi vs. Majit Singh Bhalla, I (1989) DMC 495 Delhi. Gayatri Devi vs. Laxmikant, II (1986) DMC 214 MP. Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB).

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But in another case when the wife did not deny specifically the property inherited by her from her father, the allegation of the husband was taken as correct. It was held that it was within the special knowledge of the wife regarding the actual income received from the house. In the revision petition filed by the husband an effort was made to produce material that from the said house there was income of about Rs. 1,650 per mensem, but it was not considered appropriate at that stage to make any enquiry regarding the actual income from the said house which is stated to be with the tenants. It is the wife who is to suffer on that account as she did not disclose about the house owned by her and the income derived by her there from. She was supposed to approach the Court with clean hands and when she had concealed the source of income, and particularly in view of the broad facts on which the petition has been filed i.e. concealment of her previous marriage by obtaining consent of the present petitioner for marriage, she disentitled herself for the interim maintenance during pendency of the proceedings. 1

Invalid marriage The attempt to exclude altogether the personal law applicable to the parties from consideration should be repelled. The section 125 of Criminal Procedure Code, 1973 has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. 2

Justification to live separately The husband deposed that only with the consent of the first wife he married again. The first wife stoutly denied the suggestion that she 1

2

Brijinder Bir Singh vs. Mst. Vinod @ Parminder, I (1992) DMC 591 P&H. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644: 1988(1) SCC 530: 1988 SCR 809: 1988(1) Scale 184: 1988(1) JT 193.

Disabilities depriving maintenance—Justification to live separately

161

gave consent to the respondent. The evidence on record clearly showed that either under cl. (d) or cl. (e) of sub-sec. (2) of Section 18, the first wife had a right to live separately without forfeiting her claim for maintenance. 1 The fact that a wife puts up with violence from her husband for over a period of a year is no reason to justify a finding that on the last occasion when she decided that she could tolerate it no longer, she was not entitled to pray in aid this section to indicate that her husband’s behaviour was such that she should not reasonably by expected to live with him. 2 For awarding maintenance to a wife living separately, the Court has to come to the conclusion that she is justified in living separately. 3 In a case of maintenance under Section 125 Cr.P.C. the husband deposed in such a manner as if it were a case of divorce. He said in his depositions that his marital relation with wife remains now only as his ceremonial wife. He further deposed that he lived as husband and wife minus conjugal life and that there was no free and fair marriage between him and his wife. He explained what he means by “free and fair marriage” as that the wife was not given to him as a wife as she lacked certain feminine qualities. To a query put by the trial Court he had stated that his wife was disabled for being a wife and according to his personal opinion the marriage was not free and fair as she failed to respond to his conjugal demands. Like a Hindu marriage, a Christian Marriage is also a sacrament. If there by any, diriment impediment it will render a person incapable of validly contracting a marriage and, therefore, before the celebration of a marriage they are bound to reveal to the parish priest or the local Ordinary such impediments as they may know about. In the case in hand a valid Christian marriage has been solemnised. Both the spouses had the occasion of knowing each other before the marriage and there is admission from the side of the husband that before the celebration of the marriage they had been to the church on 3 occasions. Monika has forcefully asserted that she had conceived to co-habitation with Issac. In her cross-examination had stated that she informed her husband in the last part of April 1988 about the fact that she had conceived and that the baby in her womb was two months old when she suffered the abortion. Dr. P.R. Sarkar was not examined as a witness on 1

2 3

A. Bhagavathi Ammal vs. Sethu, AIR 1987 Madras 224: (1987) 100 Mad LW 419: (1987) 18 Lawyer 25: (1987) 2 DMC 292: (1987) 2 Cur CC 871. Bergin vs. Bergin (1983) I All ER 905: (1983) II DMC (BJ) 28. N.P. Abu vs. Vellan Thotti Asma, 1999(1) HLR 32 Kerala.

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the side of Monika to prove that he gave some medicine which aborted the foetus in the womb of Monika. As such it was difficult to come to a definite conclusion as to whether such an abortion really took place. There is of course, admission on the part of the Monika that she was under the treatment of a doctor and that her husband also had borne some medical expenses. However, she had stated in her cross-examination that she had no objection to be examined by a medical expert. In this back ground it was held as under: ‘As such the ball is now in Issac’s Court. Inspite of all evidence on record, the Court is in the dark as to the real state of affairs that stands like the Berlin Wall between the newly married couple. Even the Berlin’s wall is now broken. If the allegation of the husband regarding Monika’s lacking femininity is true then surely there is a way out as Monika herself is prepared to undergo medical examination under an expert physician. If there be any cosmetic unpleasantness, modern medical science is so advanced that such an unpleasantness may be set right by use of proper medicine or by plastic surgery or by any, method known to modern medical science. Then a day will come when this unhappy couple may find the true meaning of conjugal life. Having overcome their traumatic experiences, they may emerge as a couple rejuvenated. They must not forget that the marriage according to their faith is a sacrament. There is incontrovertible proof that without any just cause the husband. having sufficient means, has neglected and refused to maintain his wife. 1 On the question of drunkenness it was observed that drunkenness of the husband, particularly of a chronic and excessive character, can lead to repeated acts of cruelty towards the wife. It is not to be expected that the wife should be a silent sufferer for ever of such a cruel treatment. It is true that wife beating had been prevalent from early times among all classes without distinction. Following reference was made to the picture portrayed by Frederick Rogers in his book ‘Labour, Life and Literature’ ‘Memories of 60 years’, holding that it may be a familiar one irrespective of time or clime: “wife beating was never a monopoly of working classes and it has all but disappeared from every form of social life that I know. it is quite an ancient custom, dating probably from primitive times, and all classes have indulged in it. there is an entry in the church books of john bunyan’s chapel at bedford which tells how a member of the congregation was reprimanded at a church meeting for beating his wife when she did not deserve it. in the street where I lived as boy and young man we were is an atmosphere of 1

Issac Harold Gomes vs. Monika Sylvia Gomes, II (1992) DMC 62 Cal.

Disabilities depriving maintenance—Legitimacy of child

163

wife-beating, and yet it was a street that prided itself on its respectability. at a house next door to so a man flung his wife out of a ground-floor window, and one man I know, in a good position if life, intellectual and educated, who was kind to us as a boy, was in the habit of giving his wife periodical thrashings. nor female neighbours used to say she richly deserved them and she certainly was a confirmed divorce. people seldom interfered between a man his wife, it was a dangerous thing to do as the contending parties usually joined forces and turned on the person who interfered with. “and pray, what business is it of yours ?” Repetitive acts of battering by an alcoholic would justify a wife entertaining a reasonable apprehension of harm or injury in living with the husband. Social conditions are such that even after repeated agonizing situations the woman puts up a façade that everything is normal in her home. She even builds up an appearance of a happy home, even while carrying sorrow’s. It is only when even the last straw is broken, she parts company with the husband and leaves the matrimonial home. The court while enquiring into the requirement of Section 18(2)(b) of Hindu Adoptions & Maintenance Act, 1956, should therefore insist only on such proof as would show that the apprehension entertained by the complaining spouse is not illusory or imaginary, and that the proved events objectively viewed, are such as to cause apprehension about a harm or injury in living with the husband. It is not reasonable to expect that neighbours would be available, and be ready and willing, to give useful evidence about such sensitive domestic incidents. Where a pregnant wife gives evidence about her husband being a drunkard, and about the repeated sufferings she had at his hands almost regularly, and when there is corroboration of the ill treatment by her husband, the requirement of Section 18(2)(b) is satisfied. 1

Legitimacy of child On the sole ground that the child had been born in about 7 months’ time after the marriage it cannot be concluded that the child should have been conceived even before the respondent had consummated the marriage. Giving birth to a viable child after 28 weeks’ duration of pregnancy is not biologically an improbable or impossible event. It was held that the learned Judge had completely lost sight of Section 112 of the Evidence Act, lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the 1

See Siva Raman Rajendran vs. Janaky Sumathy, I (1985) DMC 220 Kerala; Riyasatbi Shaikh Jani vs. Shaikh Jani Shaikh Kasam, I (1984) DMC 225 Bombay; Satish Kumar Arora vs. Varsha Arora, II (1983) DMC 445 All.

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mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. 1 If the wife was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the husband would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the wife or reported the matter to the village elders and relatives and sought for a divorce. On the contrary the respondent had continued to lead life with the appellant in a normal manner till the birth of the child. Even the confinement appears to have taken place in his house as otherwise the child’s birth would not have been registered in his village. The husband had not disowned the child immediately after its birth or sent away the wife to her parents’ house. Such would not have been his conduct if he had any doubt about the paternity of the child. Moreover, there is an entry in the birth register setting out the respondent as the father of the child. Though the husband attempted to neutralise this entry by examining a witness and making it appear that the entry had been made on the basis of information given by a third party, the lower Courts refused to give credence to the vague and uncorroborated testimony of this witness. It is also significant to note that the husband had allowed eleven months to pass before effecting a divorce. It was held that by his inaction for such a long period the husband had given room for inference that the divorce may have been effected for other reasons and not on account of the wife giving birth to a child conceived through some one else. It was also held that even if the child had been born after a full-term pregnancy it has to be borne in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving in close terms. All these 1

Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237: 1987 All WC 627.

Disabilities depriving maintenance—Living in adultery

165

factors negate the plea of the respondent that the minor child was not fathered by him. The proper course for the High Court, even if entitled to interfere with the concurrent findings of the Courts below in exercise of its powers under Section 482, Cr.P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full-fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings under Section 125, Cr.P.C. are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. 1

Living in adultery Assuming for the sake or argument that the wife committed a lapse in her life and became pregnant which would not mean that she was living in adultery. A village woman, if she lives in adultery, would never go unnoticed by the villagers unlike what happens in an urban area. If the wife was really living in adultery with someone it would have been definitely come to the noticed of the husband and/or his relatives and in that case it would not have been at all difficult for the husband to adduce evidence in that regard. That being the case, the husband miserably failed to prove that his wife was living in adultery. And it is only when the husband proves it satisfactorily that the wife was living in adultery the wife would disentitle herself to maintenance under Section 125 of the Criminal Procedure Code. 2 In Hiraman Laxman Jadhav vs. Sou. Balubai Hiraman Jadhav 3 it was observed as under: ‘In order to show that the decision arrived at by the learned Session Judge, with reference to the evidence relating to the wife “living in adultery”, has been correctly taken, it is quite appropriate to refer to some of the decisions rendered by High Court are: (1) Pattayee Amma vs. Manickam Gounder 4; (2) Papammal vs. Dharman; 5 (3) S.S. Manickam vs. Arputha Bhavani Rajam. 6 1

2 3 4 5 6

Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237: 1987 All WC 627. K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras. I (1987) DMC 226 Bombay. AIR 1967 Madras 254. 1970 (2) MLJ 81. 1979 Madras Law Weakly (Cri) 143.

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(4) S. Gulam Mohindeen vs. Rasheeda Fatima Niga Begam; 1 (5) Mathein vs. Maung Myakhin. 2 The essence of judicial pronouncements is to the effect that when the husband challenges the claim for maintenance of his wife alleging that his wife is “living in adultery”, the husband should prove that there is continued adulterous conduct. The phrase ‘living in adultery’ refers to course of guilty conduct and not a single lapse from virtue. The term “adultery” is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie. “Living in adultery” — mere friendship with a man does not amount to adultery within the meaning of Section 125(4), Criminal Procedure Code. “Living in adultery” means the following of a course of continuous adulterous conduct. While determining the factum of “living in adultery” the Court must consider evidence on record to ascertain as to whether the wife was living in quasi-permanent union with a man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously committing violation of the married bed, indulging in adulterous life, by living in quasi permanent union with her paramour. In other words, “living in adultery” means an outright adulterous conduct where the wife lives in a quasi permanent union with a man with whom she is committing adultery, ‘shortly’ before or after the petition for maintenance.’ It is only when the husband proves satisfactorily beyond reasonable doubt that his wife was living in adultery, she will not be entitled to maintenance and not otherwise. When an allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of “living in adultery”. 3

Living separate by mutual consent The concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. In other words, during the subsistence of the marriage, if the parties agree to live separately by mutual consent, no party is entitled to lay any claim for maintenance from the other party. In this case on the basis of the divorce agreement, it was held that the marital relation’s had come to terminus. By virtue thereof, the husband had already contracted the second marriage. In other words, the first marriage has been put to an 1 2 3

1981 TLNJ 7. AIR 1937 Rangoon 67. K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.

Disabilities depriving maintenance—Necessity of consummation of marriage

167

end. The wife was therefore held to have become entitled to claim maintenance and will continue to do so, so long as she remains unmarried and she is unable to maintain herself. 1

Living with father It is not the law that an indigent wife when turned out of the house by the husband must starve on the streets. In such a situation she could certainly go and live with her father but that does not mean that she cannot claim maintenance against the husband. Moreover the language of Section 24 of the Hindu Marriage Act is clear. It speaks of the “wife having no independent income sufficient for her support”. The income has to be independent and must be sufficient for her support. This language shows that the income must be the wife’s own. 2 A wife has a right to be maintained by her husband and the fact that her father is supporting her could never be a ground for depriving her of maintenance as contemplated under Section 24 of the Act, which clearly stipulates that where the wife has no independent income sufficient for her support and to meet the necessary expenses of the proceedings, she may maintain an application under this provision. If the object of the Legislature had been to deprive the wives who were being maintained by their parents for the maintenance and expenses the word ‘independent’ would not have been used in the aforesaid provision. 3

Maintenance by others Considering the fact that when in the course of the evidence it was made clear that the wife had absolutely no means to maintain herself and as she being maintained by others from the day she was neglected by the husband the Courts are justified in recording the finding that she is unable to maintain herself and then awarding maintenance. On a mere technical ground High Court will not interfere under Section 482 Cr.P.C. to set aside the order of maintenance. 4

Necessity of consummation of marriage In one case the learned Judge held that ‘valid marriage should be a condition precedent’, and this invalidity of marriage was sought to be supported by the fact that there was no consummation of marriage 1

2

3 4

Gurmit Kaur vs. Surjit Singh @ Jeet Singh, 1996 (1) SCC 39: I (1996) DMC 354 SC. C.B. Joshi vs. Ganga Devi, AIR 1980 All 130: 1980 Mat LR 217: 1994(2) Cur CC 279. Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 MP. P. Lakshminarayana vs. P. Lalithamma, I (1992) DMC 308 AP.

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between the parties. It was held that one fails to see how could this factor go to affect the validity of marriage; although it may be a ground for other relief’s under the law. 1 Therefore non-consummation of marriage does not affect claim of maintenance.

Nullity marriage The right of a wife for maintenance is an incident of the status or state of matrimony. Section 24 of the Hindu Marriage Act, which provides for maintenance pendente lite and expenses of proceedings, clearly applies to all proceeding under the Act. An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly state, be made in any proceeding under the Act, viz. for restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriage. 2 It was therefore held that the Family Court was not right in taking into consideration the allegation of fraud and deception made in the petition for the purpose of deciding the prayer of interim alimony. The fact that there is a strong possibility of the marriage being declared as a nullity is no ground for declining even the basic right to claim interim alimony and expenses of the litigation. It was also held that the Family Court was clearly wrong in postponing the determination of interim alimony till the trial of the main petition. The trial Court cannot postpone its decision on the application for interim maintenance and costs till the disposal of the main issue in the substantive matter. 3 Section 11 of the Hindu Marriage Act specifically declares any marriage contravening any one of the conditions specified in Clauses (i) (iv) and (v) of Section 5 to be null and void and on a petition presented by either party to the marriage against the other will be declared by a decree of nullity. Clause (i) of Section 5 of the Hindu Marriage Act lays down that for a lawful marriage, the necessary condition is that neither party should have a spouse living at the time of marriage. Obviously, therefore, a marriage in contravention of this condition is null and void. If, therefore, the finding of the Subordinate Judge on the ex parte evidence of the petitioner is sustained, then the marriage between the petitioner and opposite party be held to be null and void. There is no doubt that the expression “wife” used in Section 125 of the Code means 1 2

3

Kamla Bai vs. Amritram, I (1992) DMC 283 MP. Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996 Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700: 1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996 (1) All Mah LR 136. Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, ibid.

Disabilities depriving maintenance—Paternity of child

169

a legally married wife not covered by Section 11 of the Hindu Marriage Act. In this view of the matter, where a decree of annulment of marriage has been obtained, a Magistrate would be entitled to cancel an earlier order passed under Section 125 in exercise of his powers under Subsection (2) of Section 127 of the Code. 1 Under Criminal Procedure Code wife or divorced wife is entitled to claim maintenance. When the marriage between the first petitioner and the respondent is null and void as it has contravened Section 5(i) of the Hindu Marriage Act ex-wife is not entitled to claim maintenance from the respondent. Section 11 of the Hindu Marriage Act provides that any marriage solemnised after the commencement of the Act shall be null and void if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. A void marriage does not create any right and obligation which normally arise from a valid marriage. A reading of Section 125 Criminal Procedure Code, shows that a legally wedded wife or legitimate or illegitimate child could claim maintenance from the husband or the father when he having sufficient means neglects or refuses to maintain them. 2

Ornaments Section 24 does not envisage the substitution of the customary ornaments for the income nor can the Court refuse to make a grant maintenance for support simply because the wife can pull on for some time by selling the ornaments. 3

Ownership of property Mere possession of land by the father of wife does not mean that the daughter by virtue of a right for share in the property can be presumed to have sufficient means to maintain herself. A mere existence of a share in some property and the contingency of securing that is not conclusive of the question whether she had means to maintain herself. 4

Paternity of child There is presumption against bastardy. When dispute about paternity raised without displacing the presumption by proving that the father had no access during the period in question, it was held that there

1 2 3

4

Purna Chandra Digal vs. Sila Digal, II (1989) DMC 12 Orissa. Moni vs. State, II (1987) DMC 133 Kerala. Radhikabai vs. Sadhuram Awatrai, AIR 1970 MP 14: 1969 Jab LJ 537: 1969 MPLJ 565: 1979 MPWR 1004. Vemulapalli Rajanikumar vs. Vemulapalli Sarath Babu, II (2000) DMC 199 AP.

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is no provision in Indian law for such test and therefore paternity test could not be directed. 1

Pre-existing order A mere pre-existing order under the Criminal Procedure Code for payment of maintenance does not oust the jurisdiction of the Civil Court to allow maintenance pendente lite under Section 24 of the Act. 2

Prior marriage Only legally wedded wife is entitled to get maintenance allowance under Section 125 of the Code from her husband. When apart from the pleadings of the petitioner herself that her husband was earlier married to some other woman, there was positive evidence of the judgement of divorce showing that husband was earlier married to another woman and that this marriage was subsisting when he allegedly married the petitioner, it was held that under these circumstances, the withdrawal of this allegation by the petitioner, even if allowed, would be no consequence. 3

Proof of divorce Where in proceeding started under Section 488(old): 125(new), Cr.P.C. by a Mohammedan wife against her husband for her maintenance, the husband states in the written statement that he had already divorced his wife and the Court comes to the conclusion that divorce pleaded is not proved, then such a statement in the written statement itself operates as an expression or declaration of divorce by talak, and the divorce would be held to take effect at least from the date on which the written statement was filed by the husband. The reason for the decision is that the statement made by the husband orally in the deposition or in his written statement that he had divorced his wife in an acknowledgement of talak alleged to have effected by him already and, therefore, the divorce would be held to have effect at least from the date upon which the acknowledgement in made. 4 Another view is as under:

1

2

3 4

Goutam Kundu vs. State of West Bengal, AIR 1993 SC 2295: 1993(3) SCC 418: 1993(3) SCR 917: 1993(3) JT 443: 1993(2) SCR 253. Surjit Kaur vs. Tirath Singh, AIR 1979 P&H 112: 1977 Cur LJ (Civil) 490: 79 Pun LR 621: 1977 Rev LR 606: 1977 Mat LR 154: 1977 Hindu LR 793: 80 Pun LR 371: 1978 Marr LJ 47. Veena Kumari vs. Kashmir Singh, I (1991) DMC 538 P&H. Asmat Ullah v. Mst. Khatun Unnisa, AIR 1939 All 592; Wahab Ali v. Qamro Bi, AIR 1951 Hyderabad 117, Chand Bi v. Bandesha, AIR

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‘Written statement is a pleading. Pleading is one thing and proof is another. Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is to be expected at trial. Proof is establishment of a fact by evidence or matter before the Court or legal Tribunal . Where the parties are in dispute as regards a material fact, in averment in the pleading does not constitute evidence, as what is stated in the pleading is recital of past even which is required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it follows that the Court considers or believes that the fact does not exist. Therefore averment in the pleading cannot be used in favour of the maker. This being the position, statement made by the husband in his pleading or deposition that he has divorced his wife is recital of past event, and, if talak pleaded is not proved such statement shall be of no consequence. In that view of matter, if statement made by the husband that he had divorced his wife in his pleading or deposition is considered as an acknowledgement of divorce by talak, it will be against the policy of law, and it would also amount to furnishing or providing evidence to talak, which is against the rule of pleading and proof.’ 1 Therefore divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference, if the statement made orally in evidence or in the written statement that the husband his divorced his wife in a proceeding under Section 125 Criminal Procedure Code, 1973 will be valid talak from the date of making statement cannot be sustained as it would be contrary to above conclusion. 2

Proof of marriage In order to succeed in her claim for maintenance from the opposite party the petitioner/wife has to establish that she is legally married wife. Where the factum of marriage is denied, it must be proved satisfactorily that there was a valid marriage the onus being on the wife, applying for an order under Section 125 Criminal Procedure Code. It is also an accepted position that in a proceeding under Section 125 Criminal Procedure Code the Magistrate is not expected to go into the question relating to the validity of the marriage. Living as husband and wife and being treated by other as such, is quite sufficient for award of maintenance under the section. In other words, strict proof of marriage is not necessary in a proceeding under Section 125 of the Criminal Procedure Code. The Standard of proof of marriage need not be so high as in a proceeding under Section 494, Indian Penal Code for bigamy or a

1 2

1961 Bombay 121; Abdul Shakoor v. Kulsum, 1962(I) CrLJ 247; and Mohammad Ali v. Fareedunisa, AIR 1970 AP 199. Zeenat Fatema Rashid vs. Iqbal Anwar, II (1993) DMC 49 Gauhati. Zeenat Fatema Rashid vs. Iqbal Anwar, II (1993) DMC 49 Gauhati.

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proceeding for divorce, Court have also accepted that even the opinion expressed by conduct of persons having special means of knowledge is sufficient for the purpose of satisfying the requirement of Section 125, Criminal Procedure Code. 1 The standard of proof required to establish a valid marriage for claiming maintenance under Section 125 of the Criminal Procedure Code cannot be the same as required in matrimonial cases on in criminal cases where the matter involves punishment of the accused on proof of marriage. In a claim for maintenance the applicant has to make out a prima facie case to support that claim. If sufficient material is brought into indicate the factum of marriage the power under section 125 of the Criminal Procedure Code can be exercised. 2 The question of appreciation of evidence in this regard and the defence of invalid marriage on account of prior marriage, was dealt with as under: ‘Leaving aside the minor discrepancies in the statement of Shrimati Surjit Kaur which have been highlighted by the Counsel for the appellant with a view to distract the Court from evaluating the entries with regard to the birth of a son Ex.P-1, voters lists Ex.P-3 and photograph of the plaintiff defendant and a child Ex.P-4, no material evidence has been referred to by which it could be deducted that factum of marriage as set up by the plaintiff did not take place. One cannot lose sight of the fact that entry with regard to the birth of a son (plaintiff No. 3 Azad Singh) is duly recorded in the register of Municipal Committee, Ropar, on 31.1.1967 as entry long before the filing of the suit or even before Shrimati Surjit Kaur was alleged to have been turned out from the house of the defendant. Even entry in the voters list Ex.P-2 for the year 1970 record plaintiff No.1 and defendant as wife and husband. Not only this, photograph Ex.P-4 shows plaintiff No.1, and defendant along with a child who is stated to be plaintiff No. 3. Defendant when appeared as a witness has admitted the correctness of this photograph. Defendant has also admitted that plaintiff No. 1 appears along with him in this photograph. This evidence itself belies the stand of the defendant that they were never married and so never lived as husband and wife. Even the case set-up by the defendant that in fact he was married to one Champa who hailed from Chhalware in Madya Pradesh was found without any substance by the trial Court. on re-appraisal of this evidence, I also find no infirmity in the same. In fact the trial Court has threadbare discussed the testimony of

1 2

Ratna Pradhan vs. Abhi Pradhan, II (1987) DMC 1 Orissa. Shobha vs. Bhaiya Lal, II (1987) DMC 85 Bombay.

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witnesses examined by defendant and found the some un-worthy of credence.’ 1 In regard to the claim of husband that marriage was not solemnised it was held that no marriage by affidavits can take place and the marriage must have been solemnised as alleged by the wife. The husband has, therefore, put up a totally false case. When he himself has admitted that the wife lived with him after marriage, it is difficult to believe that a girl will live in her husband’s house for such a long time without any marriage having taken place. He has further admitted that she has been holding out that she was his wife. If she were not he would not allow her to do so. He cannot be asked to take advantage of his own fraud. In such a case, even after the passing of the Hindu Marriage Act, 1955, the doctrine of factum violet should be invoked. If the parties are recognised as man and wife, there is a strong presumption in favour of the validity of marriage, form and ceremony of the marriage and the legitimacy of its offspring. Where a man and woman had lived together as man and wife, the law will presume, until the contrary is proved that they were living together by virtue of a legal marriage and not in concubinage. Such presumption can be rebutted only by showing that the marriage was most highly improbable and not reasonable possible, marriage can be proved by repute and intention to enter into wedlock. After all rites and ceremonies only serve to provide proof of marriage as registration does. It is otherwise very difficult after some lapse of time to lead a Pandit to the witness box to prove that the marriage had been solemnised. No documentary evidence is even possible to find. Many of the witnesses die in the meanwhile. No evidence except the hard fact of living together survives. 2 A custom which has been recognised and affirmed in a series of decisions each of them based on evidence adduced in a particular case may become incorporated in the general law and without proof in each case. This principle will be equally applicable even where the community is very small and limited within a small area. At the same time the Court cannot ignore the well-established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those should have been based on evidence adduced in respect of the cases. When their Lordships of Supreme Court discussed about the text books and other materials to hold that such a custom was prevalent in that community, it was held that in view of the definite finding of the

1 2

Mohinder Singh vs. Surjit Kaur, I (1994) DMC 163 P&H. Ashok Kumar vs. Usha Kumari, AIR 1984 Del 347: 1984 (26) DLT 199: 1984 (2) DMC 210: 1984 (2) ILR 429 (Del): 1984 RLR 663.

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Apex Court, it has become a law of the country and it can always be relied on by the Courts without much evidence. 1 Once the marriage procedure and paternity of child was admitted, it does not lie in the mouth of husband/father to contend that no valid marriage came into existence as essential rites were not performed. 2

Refusal to co-habit The husband had a liability to maintain his lawfully married wife and children under Section 125 of Criminal Procedure Code. The husband cannot escape that liability to maintain by alleging that he was harassed by his wife and by resorting to the subterfuge of filling Hindu Marriage Petition for restitution of conjugal right in a Civil Court. In the facts and circumstances of the case, it is found that the petition for restitution of conjugal rights was filed with ulterior motive to avoid the liability to pay maintenance to the wife under Section 125 Criminal Procedure Code. It was observed that looking at the record of the husband, it is quite possible that to avoid paying maintenance to the wife under this order, he may agree to take the wife for some time and torture or drive her out later. Further the wife would be fully justified in refusing to live with the husband in view of the allegations that he is living with another woman and has an issue by her. In law, the position is absolutely clear that a wife can refuse to live with the husband and yet claim maintenance under Section 125 of Criminal Procedure Code, if he has re-married or is living in adultery with another woman. A wife has a right to exclusive association of her husband under filed and unpolluted by any other woman. 3 If there was a reasonable apprehension of physical ill-treatment in the mind of the wife was a just ground on her part for refusal to live with her husband despite the offer made by him now. She could not be deprived of the maintenance by reasons of such refusal. Under such circumstances, it must be held that the husband had neglected to maintain his wife. 4

1

2 3

4

Gurubasawwa vs. Irawwa w/o Chinnappa Barashetti, AIR 1997 Kant 87. Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, 1999 (7) SCC 675 Dharmishthaben Hasmukhbai vs. Hasmukhbhai Pradhandas Ranpur, I (1990) DMC 202 Gujrat. Sundarmmal v. Palaniandi Mudali, AIR 1940 Mad 292 and Samuel Stephen Richard v. Stella Richard, AIR 1955 Mad 451.

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Thus, the husband’s cruelty towards the wife was a sufficient ground which justified her separate residence and could not prejudice her claim for maintenance. 1 In fact in another case the act of mental cruelty was also held to be sufficient for wife to refuse co-habitation with her husband: ‘Taking a snap in the nude by itself may not constitute an immoral act. Surrounding circumstances and the intention of the photographer must be taken together to come to a correct finding. Here the photographer is his husband and the photographed is his wife. I searched the records in vain to locate the place where the snap was taken. If may be the hotel where the newly married couple stayed or it may be the sea beach which provided an idyllic background. Even if the second possibility is presumed there is no evidence that the photograph was taken in full view of other people who might be present at the sea beach at that particular time and place. There is no evidence that the husband wanted to keep these photographs at conspicuous places in his residence for public view. There is no evidence that the husband wanted to make clandestine business by selling nude picture. It is a matter between the husband and the wife and there is no evidence that the husband had done this with some evil design or that he is a man of perverse taste. This reminds me of a world famous painting under the title “The Birth of Venus drawn by Bottichelli, the favour 15 th Centaury Italian Painter. The Venus was born and was rising from the sea with all her naked grandeur. The background was probably the Mediterranean sea. I do not know whether in the instant case before me the husband was imbued with the spirit of Bottichelli and whether he wanted to immortalise his wife in her naked beauty. From the facts and circumstances of the instant case I find no reason to hold that the taking of photograph of the wife in her nude by her husband amounted to mental cruelty. So I am left with the other aspect of the question, i.e., whether the respondent’s addressing his wife as ‘Kept’ amounted to mental cruelty. Nowhere it is denied by the respondent that he had not called her as his ‘Kept’. The petitioner examining herself as P.W.1 has deposed that her husband used to call her ‘Kept’. The statement of the petitioner on oath was never challenged in her cross-examination. It is really a very serious matter for a legally married wife to be called ‘Kept’ by her own husband. It hurts the sentiments and the wifely pride of any woman. In my opinion this amounts to mental cruelty which in turn give rise to a just cause to the wife to live separately from her husband.’ 2

1 2

Sumer Singh Parihar vs. Kalpna, II (1990) DMC 266 All. Chitra Lekha Banerjee vs. Rana Banerjee, II (1991) DMC 377 Cal.

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Once, there is a clear finding of the Civil Court on the point of desertion, neglect and cruelty which is answered in the negative, it is not open for the Criminal Court to give different finding on the same issue. The findings recorded by the Civil Court are binding on the Criminal Court for the purpose of deciding application for maintenance under Section 125 of Criminal Procedure Code.1 It has been held that T.B. is contagious disease. It might have created a sort of apprehension in the mind of the wife, by living together under the same roof as husband and wife and subjecting to conjugal rights she may also contract the disease. Even if no obligation of conjugal rights is complied with by the wife, living under the same roof is not free from the danger of contracting the contagious disease.2 When evidence is available that the wife was not only ill-treated by her husband but dowry demand was also made, his inhuman behaviour is so patent. Further, the case of the wife through her father, that she was sent away from the matrimonial home, only on that score, has also been accepted. There is no gainsaying of the fact that only because of the conduct of the husband the wife had become mentally deranged and became incapacitated. It was held that the behaviour of the husband is nothing short of wilful neglect and the wife and the minor daughter have a right to be maintained by the husband, who is under a legal as well as moral obligation to do so.3 In another case it was seen that, the main problem of the husband was the failure on his part in respect of sexual life. The wife however did not immediately rushed to severe her marital relations but had waited for sufficiently long time to see whether there would be any improvement in the potency of the husband. Having found no hope, she chose to live separately from the husband. Therefore, it was concluded that the wife having tried all means the marital relations but having found that it was impossible for the husband to gain potency, she had chosen to live apart from him. In these circumstances it was held that there was sufficient ground for the wife to live separately.4 In one case the learned Magistrate in his order found that the petitioner left her matrimonial home without any sufficient reason and she refused to live with her husband, the opposite party. In coming to such a finding he considered the evidence of the wife in its proper perspective and also noted from her deposition that she was willing to 1

2 3 4

Tulsidas Madhavdas Sharma vs. Shantiben Tulsidas Sharma, II (1991) DMC 397 Gujarat. Veeranna vs. Sumitrabai, I (1990) DMC 49 Kar. Palanivel vs. B. Saraswathi & 2 Minors, I (1994) DMC 120 Madras. Major Ashok Kumar Singh vs. Additional Session Judge, Varanasi, 1996 CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4) CCR 68: I (1996) DMC 115 SC: 1996 (1) SCC 554.

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live with her husband if the opposite party stay at Calcutta with her. The learned Magistrate also observed that the factum of torture on her by the opposite party and his family members was disclosed to the neighbouring Bengali families who reside within the same campus. The appraisal of evidence by the learned Magistrate was not interfered with in revision by learned Session Judge as he found that there was no perversity in such appreciation of the evidence by the learned Magistrate and as there was no other illegality in the matter. It was held that in revision reappraisal of the evidence as recorded by the learned Magistrate is not permissible under the law unless such appraisal is perverse and illegal. The Revisional Court below did not find any perversity or illegality in appraisal of the evidence or any illegality in the judgment of the learned Magistrate, therefore the order was affirmed. 1 Even if there be custom of second marriage in the community of the petitioner and opposite party and that has been performed in accordance with the customary law but the fact remains that the second marriage has taken place and the first wife is justified in refusing to live with her husband who had taken second wife as living with second wife itself amount to cruelty. Therefore, the question of validity of marriage is not relevant for the purpose of correct justification of separate living. 2 In one case the husband admitted the status of the opposite party as his wife. He also admitted that after going to her father’s house in ‘Dasahara’ 1990 (i.e. about eight months after the marriage) she was staying there all along. But he has not stated that he has provided any maintenance to her during all those years. Husband had not produced any convincing evidence that he made any sincere effort to restore the conjugal life. Contention of the husband that wife refused to join him because his sister rebuked her (petitioner) by saying ‘Kala Jivi’ held to be highly improbable. In that context, if petitioner’s evidence will be assessed then the factum of ill-treatment and cruelty on account of dowry demands held to be true and believable. 3 Normally a pregnant wife will not leave the house of the husband on her own and more so when the husband is Professor, having good income and sufficient means to maintain her and child. She delivered a female child as said earlier and there is no material that the respondent after the birth of the child at all went to Ajmer to see the child atleast once. The wife filed an application for restitution of conjugal rights. A

1 2 3

Rina Sarkar vs. Paritosh Sarkar, II (1994) DMC 392 Calcutta. Hari Rajwar vs. State of Bihar, 1999(1) HLR 460 Patna. Jadumani Sahu vs. Brundabati Sahu, 1999(1) HLR 628 Orissa.

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decree for restitution of conjugal rights in her favour was made and even than no efforts have been made by the husband to see that his wife returns to him. In these circumstances it was observed as under: ‘If the husband does not care for his wife, does not care to maintain his minor daughter, it is a case of neglect or refusal to maintain his wife and child. A look at the reply to the application under Section 125 Cr.P.C. will show that the respondent has even gone to the extent of levelling the allegations of unchastity against the appellant. A look at the additional pleas of the reply will show that it is clearly mentioned therein that three letters by same unnamed lover of the appellant were received at the address of the father of the respondent, two of them have been destroyed and third was produced, but was not proved. Though the name of the lover is not named in the letter was received, it was read in the presence of the respondent and the appellant had admitted that she was having illicit relation with that man. The allegations of this nature, there can be no dispute amount to mental cruelty. Thus, even if during the proceedings under-Section 125 Cr.P.C. the respondent would have offered that he is willing to maintain the appellant his life in case she lives with him. All that was required by law was that the offer should have been considered and still an order for maintenance can be made. The learned Judge, Family Court surprisingly did not take into consideration this aspect to the matter merely on the ground that allegations of cruelty as contained in the application are not proved and arrived at a conclusion that is no proof of neglect or refusal to maintain the appellant by the respondent and, therefore, dismissed the application u/Sec. 125 Cr.P.C. as for as the appellant is concerned. This approach of the learned Judge to us does not appear to be correct. As said earlier, a Hindu wife, more so pregnant one and more so one who belongs to poor family having no income of her does not dessert her husband who is of better status in the society, is well placed and there must be some reason for her to leave the house of the husband. From the facts on record, we are satisfied that it is a case of refusal or neglect by the respondent to maintain his wife and, therefore, the learned Judge, Family Court was wrong in rejecting the application of the appellant so far as maintenance to her is concerned.’ 1 When the plaintiff has satisfactorily proved that during the relevant period, the defendant/husband was having sexual relationship with another lady Padmavati in the same house, under Section 18(2) of the Hindu Adoptions & Maintenance Act, the plaintiff was entitled to

1

Jaspal Kaur vs. Manjeet Singh, I (1992) DMC 439 Raj.

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live separately from the husband without forfeiting her claim to maintenance and provision for separate residence. 1 The woman would go to the marital home of her husband, with a fond hope and expectation that she would have not only a happy but also peaceful conjugal society with her husband. When she found that her husband is unable to perform sexual obligation, while is one of the important factors to cement bondage of affection and cordial relationship in marital home, it would be perpetual agony for the wife to continue to live in peace in the conjugal home. Cruelty is a ground for divorce or judicial separation in civil law. Under these circumstances, she would be well justified live separately with the husband and at the same time keep maintaining married status. 2 In respect of same question arising under Muslim law it was held as under: ‘If the husband was impotent and unable to discharge his marital obligations, how could be fulfil the main object of marriage, more particularly, under the Mohammedan law where marriage is a sacrosanct contract and not a purely religious ceremony as in the case of Hindu Law. This would certainly be a very just and reasonable ground on the part of the wife for refusing to live with her husband, as also in cases under the Hindu Law or other laws. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband’s parents or relations, such apprehension also would be manifestly a reasonable justification for the wife’s refusal to live with her husband. Instances of this nature may be multiplied but was have mentioned some of the circumstances to show the real scope and ambit of the proviso 1

2

Purna Chandra @ Purnananda Mohapatra vs. Malati Mohapatra, I (1991) DMC 555 Orissa. Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, AIR 1996 SC 333: 1996 CrLJ 392: 1996 SCC (Cr) 161: 1995 (4) CCR 68: I (1996) DMC 115 SC: 1996 (1) SCC 554.

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and the Amending provision which is, as already indicated, by no means exhaustive. In other words, where a husband contracts a marriage with another woman or keeps a mistress this would be deemed to be a just ground within the meaning of the second proviso so as to make the refusal of the wife to live with her husband fully justified and entitled to maintenance. The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same.’ 1 Same question was considered by Supreme Court again and it was reiterated as under: ‘Can it be said by any stretch of imagination that where a wife refuses to live with her husband, if he is impotent and unable to discharge his marital obligation, this would not be a just ground for refusing to live with her husband when it seems to us that the ground of impotence which had been held by a number of authorities under the civil law to be a good ground not only for restitution of conjugal rights but also for divorce. Indeed, if this could be a ground for divorce or for an action for restitution of conjugal rights, could it be said with any show of force that it would not be a just ground for the wife to refuse to live with her husband. The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of the perpetual torture, which is not only mentally or psychologically injurious but even from the medical point of view, is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same. The wife would be entitled to maintenance under Section 125(1) of the Code. The woman would go to the marital home of her husband, with a fond hope and expectation that she would have not only a happy but also peaceful conjugal society with her husband. When she found that her husband is unable to perform sexual obligation, which is one of the important factors to cement bondage of affection and cordial relationship in marital home, it would be perpetual agony for the wife to continue to live in peace 1

Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan, AIR 1981 SC 1972: 1981 CrLJ 1430: 1981 CrLR (SC) 554: 1981 CAR 399: 1981 SCC (Cr) 829.

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in the conjugal home. Cruelty is a ground for divorce or judicial separation in civil law. Under these circumstances, she would be well justified to live separately with the husband and at the same time keep maintaining married status.’ 1 In case of remarriage by the husband, the wife has justification to refuse to live with husband and the wife is entitled to maintenance from the husband. 2 In another case wife alleged that her husband had contracted a second marriage. She filed a complaint for an offence under Section 494 of the Indian Penal Code. The complaint was dismissed and husband was acquitted. High Court took this circumstance against the wife and adversely commented on her refusal to live with her husband. It was held as under: ‘High Court, it would appear, lost sight of the fact how it would be difficult for the wife to prove the second marriage. This Court has held that to prove the second marriage as a fact essential ceremonies constituting it must be proved and if second marriage is not proved to have been validly performed by observing essential ceremonies and customs in the community conviction under Section 494 IPC ought not to be made. The fact, however, remains in the present case that the husband is living with another woman. Proviso to sub-section (3) would squarely apply and justify refusal of the wife to live with her husband. There can be however, other grounds for the wife to refuse to live with her husband, e.g., if she is subjected to cruelty by him. It was a case where the husband neglected or refused to main his wife. High Court did not consider the question if husband was having sufficient means. It rather unnecessarily put the burden on the wife to prove that she was unable to maintain herself. The words ‘unable to maintain herself’ would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 is enacted on the premise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. High Court also observed that the wife did not plead as to since when she was living separately. This is not quite a relevant consideration. Even though wife was unable to prove that husband has remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife to 1

2

Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, 1996 CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4) CCR 68: I (1996) DMC 115 SC: 1996 (1) SCC 554. Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 CrLJ 1089: 1974 CAR 400: 1974 Cr LR (SC) 408.

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live separately and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise. We may also have a look at the provisions of the Hindu Adoptions and Maintenance Act 1956, which provides for maintenance to a Hindu wife. Under Section 18 of this Act a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life-time. Under sub-section (2) she will be entitled to live separate from her husband without forfeiting her claim to maintenance,—(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; and (g) if there is any other cause justifying her living separately. Under sub-section (3) a Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be Hindu by conversion to another religion. It will be apposite to keep these provisions in view while considering the petition under Section 125 of the Code.’ 1 In a case relating to ill-treatment of wife it was held that the nonapplicant/husband was annoyed with his wife for various reasons and, therefore, it cannot be said that the applicant/wife has come out with a false case that she was being ill-treated by her husband, and the question is the extent of ill-treatment and whether the applicant/wife was justified in leaving the house of the non-applicant/husband in such a situation. It was also held that when there is no other evidence on record, there is no reason to disbelieve the applicant/wife when she has made specific allegations of ill-treatment at the hands of the non-applicant/husband which made her take such an important decision so as to leave her husband’s house. It was also found that after the applicant lodged a complaint with the police, the non-applicant did not go to take her back or made any other efforts so as to resume the marital life. In the circumstances, It was held that the non-applicant/husband cannot take an advantage of the situation and blame the applicant/wife, for which there is no material on record that the wife is guilty of desertion without any 1

Rajathi vs. C. Ganesan, AIR 1999 SC 2374: 1999 CrLJ 3668: 1999 CrLR (SC) 451: 1999 SCC (Cr) 1118: 1999(3) Crimes 189: 1999(2) Raj LW 313.

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justification. It was also held that the fact remains that even after filing of the application for maintenance, the non-applicant/husband took the plea that the applicant/wife is able to maintain herself as she is taking tuitions and also doing job work in typing, rather than offering to maintain her. Thus It was held that this, itself indicates that the nonapplicant/husband chose to refuse and neglect to maintain the applicant/wife. 1 The treatment with cruelty is itself a sufficient ground for the wife to decline to live with the husband even if he offered to keep her and to maintain her. 2 The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of illtreatment by the husband, wife is not entitled to maintenance. In this case the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice. Wife was not able to establish that she had been neglected by her husband. As a matter of fact she was living with her parents of her own accord, therefore she was held to be not entitled for maintenance allowance for herself. 3 The effect of non-reconciliation on the part of the parties should not be blown out of all the proportions. In this case, the wife had deserted the husband and consequently a decree of divorce was granted. In a Court of law it would be almost impossible to find out the true facts regarding the justification of the conduct of wife. She was required to live with the parents of the husband. She would not able to prove fact for justifying her conduct. The fact remains that she was required to live in strange place without the support of the persons who could adjust with her despite her defects. In that situation refusal of wife to live with the husband may have some justification which she was unable to prove in accordance with law. Consequently, the Court may objectively consider conduct of the husband too along with that of wife or coming to just conclusion. The Court cannot take one sided view of the matter. Wife cannot permanently live with her parents for the simple reasons her parents are likely to out live her in normal circumstances where she will go. She is, therefore, entitled to maintenance and it is the legal duty of 1 2 3

Babinanda vs. Vijay Kumar, I (2000) DMC 549 Bombay. Rajmati vs. Mithai, II (2000) DMC 694 Allahabad. Bheekha Ram vs. Goma Devi, I (2000) DMC 76: 1999(1) HLR 543 Rajasthan.

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the husband under Section 25 of the Hindu Marriage Act, 1955 to divorcee wife. 1 Allegation against the character of lady by itself is cruelty and is a sufficient ground for her to refuse staying in company of husband. However in another case, inspite of that, the wife did not deny to stay in company of the husband. All that she asserted was that she would stay in the quarter allotted to respondent No. 2 which was in her occupation. She even showed readiness to snap relations with her maternal cousin, if the husband was ready to stay in the quarter. In this case reliance was placed upon the previous decision 2 of the Court, and the ratio was followed. 3

Right over property The husband of the plaintiff had properties. If the husband would have been alive, plaintiff could have been maintained by him. In absence of the husband, a widow is entitled to be maintained from out of the properties of her husband. In absence of person having statutory or pious obligation to maintain her persons who are in possession of the properties of her husband are liable to maintain the widow, if the circumstances so call for. 4

Second marriage Instances are not infrequent when the wife’s application for maintenance under Section 125, Criminal Procedure Code is contested on the plea that her marriage being the second marriage of the opposite party and took place during subsistence of the earlier marriage it is null and void and she is not eligible to get any maintenance under the provision. In such a case it is incumbent on the part of the Magistrate to consider the question carefully and record a finding whether the first marriage of the opposite party was a valid marriage and was subsisting by the date of the second marriage. On the finding depends the maintainability of the application under Section 125, Criminal Procedure Code and the competence of the Magistrate to award compensation to the applicant wife.5 The attempt to exclude altogether the personal law applicable to the parties from consideration has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, 1 2 3

4 5

Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP. Khadijabibi v. Husen Yusuf Umar Aliya, 1993 (1) GLR 437. Safiyaben Mohamed Sahid Ansari vs. State of Gujarat, II (2000) DMC 494 Gujarat. Kapila Pradhan vs. Parcha Pradhan, II (1992) DMC 393 Orissa. Tankadhar Nath vs. Prabhahati Nath, I (1991) DMC 336 Orissa.

Disabilities depriving maintenance—Second marriage

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that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. While the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception. It was urged that the appellant was not informed about the husband’s prior marriage when she married him who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. But it was held that the wife cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it was held that it is of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party. 1 Merely by reason of the fact that the first wife is living, the second marriage will not be null and void; because the expression ‘spouse’ as used in Section 5(i) of the Hindu Marriage Act means lawfully married wife or husband. Therefore, it necessarily follows, before deciding the validity of otherwise of the second marriage. The solemnization of the first marriage in due form has also to be established. If the first marriage itself is void, either because of the violation of the conditions in Clauses (iv) and (v) of Section 5 of the Act, the parties to the marriage being within the prohibited degrees of relationship or being sapindas of each other; or because of the nonperformance of the marriage in due form with essential customary rites, the second marriage will not be null and void. Therefore, before the second marriage was held to be null and void, the performance of the first marriage with requisite conditions and essential customary rites and ceremonies has to be established. 2 In another case it was found that the husband suppressed the fact of the first wife living and on misrepresentation that she was dead, the husband got married with the present wife and only, of late, just five days prior to filing of the petition before the Court of Enquiry, the wife came to know about the first wife of her husband living. On the basis of material on record it was held that this had to be accepted since absolutely no iota of evidence is made available from any quarter contra 1

2

Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93: 1988 CrLR (SC) 182: 1988(1) Crimes 594: 1988(1) Ker LT 416. Rudramma vs. H.R. Puttaveerabhadrappa, II (1986) DMC 272 Karnataka and Mohammed Sharif vs. Raisa Begum, II (1986) DMC 456 Bombay.

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to the effect that the first wife of the respondent was also living with them, nor any attempt had been made on the part of the respondent in proof of the same. Hence, It was held that the reason attributed for the wife consenting to get married with the respondent has to be believed and accepted under such circumstances. After all, the marriage held between the parties could only be treated as a valid marriage, since the fact of the subsistence of the first marriage and her suppressed on representation that she was dead. Under these circumstances, the marriage could only be treated void-able one, and the option of getting the same declared void was left with the wife. However, for the purpose of Section 125 of Criminal Procedure Code, the law is settled long back that the marriage in between the parties though plays an integral part in deciding the question of maintenance, even if the marriage strictly does not come to be proved, it is sufficient if evidence is available to the effect that the parties have lived together for a considerable time. As such, when it was established that the wife had been living with the respondent for a considerable period and continuously so as to give way for a child to be born, this status of the wife itself was sufficient for the grant of maintenance not only for her but also for her child the second petitioner. Therefore it was held that the petitioner was the wife of the respondent and the other petitioner was their legitimate child and the respondent was duty bound to maintenance them. 1 In the decision of Vimala v. Veeraswamy, 2 the Supreme Court specifically observed that it was for the husband to prove that marriage was void due to subsistence of an earlier marriage and burden of proof of the earlier marriage shall be entirely upon husband. The relevant portion of the observation is as follows:

had the the the

“Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her a kept-mistress on the specious plea that he was already married, the Court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a 1

2

Mallika vs. P. Kulandai, I (2001) DMC 354 Mad; See also Manulal vs. Kunti Behera, I (1986) DMC 22 Orissa. 1991 (2) SCC. 375.

Disabilities depriving maintenance—Second marriage

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wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. However, under the law a second wife those marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Criminal Procedure Code, for the sole reason that the marriage ceremony though performed in the customary form lack legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue.” In the light of these principles propounded by the Apex Court, the Madras High Court in another case concluded that the petitioner/husband failed to discharge the burden by proving subsistence of the earlier legal and valid marriage. 1 In another case the second marriage of husband was sought to be justified by claiming that the claimant wife was suffering from T.B. It was held that in the absence of any evidence and proof on record it cannot be held that the non-applicant was suffering from T.B. In fact it appears that the applicant has taken this plea to find excuse for performing ‘Natra’ and keeping the non-applicant away from the home. It was also observed that it is a known fact that T.B. is curable ailment and, therefore, this cannot be a ground for the husband to desert the wife instead of maintaining and providing medical help. Law permits to the non-applicant to refuse to live with the husband on the ground of “Natra” second marriage and under such circumstances the husband cannot compel the wife to live with him and cannot refuse to maintain her and cannot avoid the liability. 2 The Explanation to Section 125 of Criminal Procedure Code, 1973 places a second wife and a mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal 1 2

Samidurai vs. Rajalakshmi, I (2000) DMC 252 Madras. Chandarsingh vs. Nanibai, II (2000) DMC 660 MP.

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footing the matrimonial injury suffered by the first wife on account of the husband marrying against or taking a mistress during the substance of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. It can be said that a second wife would be more tolerant and sympathetic than a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife in one and the same house. It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband’s right to marry again. 1 The Explanation has, therefore, to be seen in its full perspective and not disjunctively. Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. Approaching the matter from this angle, comparison of Muslim wives with Hindu wives or Christian wives was held to be not necessary to restrict the comparison to Muslim wives themselves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination. A right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress. 2 Section 488(2) of the old Code also provided to the extent that if a husband has contracted marriage with another woman, it shall be considered to be a just ground for his wife’s refusal to live with him. In 1

2

Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987 SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543: 1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246. Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987 SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543: 1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.

Disabilities depriving maintenance—Second marriage

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one case it was, however, urged that there was no legal evidence of the second marriage and therefore the wife was not entitled to maintenance on the ground that her husband had contracted a second marriage. It was held that the evidence of the wife, her father and of a neighbour was enough to prove that a lawful marriage had taken place between the husband and the second wife. It was further held that as the wife was justified in refusing to live with the husband, the latter was under a legal obligation to maintain her. When he neglected to maintain her the High Court was justified in passing the order for maintenance. 1 In order to be eligible to receive maintenance under Section 125, Criminal Procedure Code the wife must establish that she is the legally married wife of the opposite party or that after her marriage she has been divorced and has not re-married. Under the provision in Section 11 of the Hindu Marriage Act, 1955 read with those in Section 5 of the Act any marriage solemnized after commencement of the Act shall be null and void if either party has a spouse living at the time of the marriage. The Calcutta High Court in the case of Kalyani Sen vs. Radhakant Sen, 2 taking a different view held that a second marriage is a voidable one, it is valid and can be relied upon for the purpose of grant of maintenance under Section 125, Criminal Procedure Code till it is annulled by a decree in an appropriate proceeding under the Hindu Marriage Act. The position has now has been settled by the Apex Court in the case of Yamunabai Anantroa Adhav vs. Anantrao Shivram Adhav, 3 wherein the Court in categorical and unequivocal terms held that the second marriage in such circumstances is null and void and cannot be treated as voidable under Section 12 of the Hindu Marriage Act notwithstanding the fact that the wife was not informed about the husband’s earlier marriage when she got married him. A similar view has been taken in the case of Manulal alias Manulal Behera vS. Kunti Behera, 4 and in the case of Sri Ram Prasanna Dash v. Bhabani Devi. 5 Section 125 of the code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected 1

2 3 4 5

Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 Mah LJ 437: 1974 MPLJ 470: 1974(4) SCC 610. (1987) 2 Reports (Cal.) 615. AIR 1988 SC 644. 1985 (II) OLR 262. 1990 (I) OLR 548.

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wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has nor remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125 Cr.P.C. for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect woman and children. 1 In one case plaintiff stated in application that the right to claim separate maintenance from her husband accrued to her by reason of the second marriage of her husband. It was held that the right would not have accrued to her as the marriage was a void marriage since under the provision of Hindu Adoptions & Maintenance Act that right to separate maintenance would accrue only if the second marriage was a good marriage, and there was a clear recognition of the validity of that marriage from the pleading. 2

Second wife The entire section 125 of Criminal Procedure Code, 1973 either with reference to wife or children or father or mother is couched in singular form. If the interpretation of the learned Magistrate is considered in its setting, then only one child is entitled to maintenance, and such interpretation of Section 125 Criminal Procedure Code, leads to absurdity. Section 13(2) of the General Clauses Act, 1897 is as follows:—“Words in the singular shall include the Plural, and Vice Versa”. Therefore, the ‘wife’ occurring in Clauses (1) of sub-section (1) of Section 125 Criminal Procedure Code, includes wives as also minor ‘child’ in Clauses (b) includes children. Therefore, it was held that the order of the Magistrate in holding that the second wife is not entitled to maintenance is clearly contrary to the provisions of Section 125 Criminal

1 2

K. Vimla vs. K. Veeraswamy, I (1991) DMC 518 SC. Saraswathamma vs. Bhadrama, AIR 1970 Mysore 157.

Disabilities depriving maintenance—Temporary Employment

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Procedure Code. 1 The Supreme Court however without adverting to this decision or its reasoning, has held that the second marriage being null and void, the second wife is not entitled to maintenance. 2

Sufficient income Where the wife in her examination admitted that she was working as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it was held that the object of Section 125, Criminal Procedure Code is to prevent vagrancy, by compelling a person to support his wife or child, or father or mother, unable to support itself. The maximum amount payable under this Section is Rs. 500/- p.m. This amount is not intended for leading a luxurious life. The powers of the Criminal Court under Chapter IX are limited in scope and orders passed thereunder are subject to any final adjudication that may be made by a Civil Court between the parties respecting their civil rights and status. Since the wife is getting Rs. 735/p.m. which is sufficient to keep her from starvation. She is not entitled to claim maintenance from the husband. 3

Temporary Employment In regard to the interim maintenance provided in Section 24 of the Hindu Marriage Act, 1955, the Court’s approach to the problem should be that a marriage do facto carries with it the right to interim maintenance in matrimonial proceeding. The only consideration which should weigh with the judicial mind is whether the applicant is possessed of sufficient means for his or her support and necessary expenses of the proceeding. The word ‘sufficient’ is of some significance and it connotes that the income of the applicant must be such which would be sufficient for a normal person for his or her sustenance as well as to meet the necessary expenses of the proceeding. It does not contemplate ‘some income’ by the applicant howsoever meagre it may be, would disentitle the application from getting relief under Section 24 of the Act. At the same time, the Court should also bear in mind another principle, namely, that the order should not work out as a penalty crippling the party from prosecuting the proceeding. The Court undoubtedly exercises a wide discretion in these matters but the discretion is judicial and not an arbitrary or capricious one. It is to be guided on sound principles of matrimonial law and should be exercised within the ambit of the provisions in the section and having regard to the object of the Act. Keeping the aforesaid principles in view, it was held that a temporary 1 2

3

Mala Balakistaiah vs. Peeda Moulalamma, I (1987) DMC 245 AP. Khemchand Om Prakash Sharma vs. State of Gujarat, 2000 (3) SCC 753: 2000 SCC (Cr) 748 Manikkuttan Nair vs. Girija Amma, I (2001) DMC 117 Kerala.

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appointment of the wife as a teacher which is of very shaky tenure would not disentitle her to receive maintenance under Section 24 of Hindu Marriage Act, 1955 Act. 1

Unproved illicit relation In one case in the additional pleas it was mentioned that three letters by some unnamed lover of the wife were received at the address of the father of the husband, two of them had been destroyed and third was produced, but was not proved. Though the name of the lover is not named in the letter was received, it was read in the presence of the respondent the appellant had admitted that she was having illicit relation with that man. The allegations of this nature, there can be no dispute amount to mental cruelty. Thus, even if during the proceedings u/Sec. 125 Cr.P.C. the respondent would have offered that he is willing to maintain the appellant his wife in case she lives with him. All that was required by law was that the offer should have been considered and still an order for maintenance can be made. The learned Judge, Family Court surprisingly did not take into consideration this aspect of the matter merely on the ground that allegations of cruelty as contained in the application are not proved and arrived at a conclusion that is no proof of neglect or refusal to maintain the appellant by the respondent and, therefore, dismissed the application under section. 125 Cr.P.C. as far as the appellant is concerned. The approach of the learned Judge to us does not appear to be correct. As said earlier a Hindu wife, more so pregnant one and more so one who belongs to poor family have no income of her does not desert her husband who is of better status in the society, is well placed and there must be some reason for her to leave the house of the husband. From the facts on record, we are satisfied that it is a case of refusal or neglect by the respondent to maintain his wife and, therefore, the learned Judge, Family Court was wrong in rejecting the application of the appellant so far as maintenance to her is concerned. 2

Unreasonably attitude Taking Rs. 760/- to be the monthly income of the petitioner, it was held that it will be in the fitness of the things if the wife and the two children together receive Rs. 300/- for their monthly maintenance. It was also held that the attitude of the wife in such case cannot be said to be quite reasonable. She had made serious allegations against the husband alleging the acts of criminality against him. Probably she is justified in

1

2

Krishnapriya Mohapatra vs. Birakishore Mohapatra, II (1986) DMC 96 Orissa. Jaspal Kaur vs. Manjeet Singh, II (1992) DMC 17 Raj.

Disabilities depriving maintenance—Validity of marriage

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making those allegations. But the point noted by the court was that inspite of her conviction relating to criminal tendencies of the husband, she wants to keep herself wedded to him for all his life. The husband had made a clear statement before the court that he was prepared to make sufficient provision for the maintenance of his wife and children if the wife was prepared to separate herself from the husband by a decree of divorce by consent and to start a fresh life, thus allowing him to lead a free life of his own. The wife did not accept this suggestion, whereupon it was held that there was no reason, logic or rationale, for this conduct of the wife. If she did not want to stay with the husband, she could not be blamed for that. She wanted maintenance from the husband. She could not be blamed even for that. But when the husband had made a reasonable suggestion that she could get the same thing by allowing him and her to live a life of their own by taking a divorce, it would have resulted in freedom and consequent happiness for both of them. It was held that just with a view that the husband should not be happy in his future life, the wife wanted to continue to be unhappy herself. There was no justification for this attitude of the wife at all. It was also held that the wife had not shown that she was unable to maintain herself. No effort is made by her to satisfy the Court in this behalf. Therefore a sum of Rs. 100/- was held to be the maximum sum that should be awarded to the wife by way of monthly maintenance. 1

Validity of marriage The Kerala High Court in a case where the claim for maintenance of the wife was disputed on the ground that there was no valid marriage between the parties because the husband had earlier married and that marriage was subsisting on the date of his marriage with the applicantwife in that case. After considering the observations of the Supreme Court in the case of Yamunabai (supra), the Kerala High Court in the case of Raman Pillai v. Subhadra Amma, 2 has held: “This means, a lady who wants to claim maintenance from the man should establish that she has lawfully married him in conformity with the provisions contained in Section 5(1) of the Act as well. In other words, in the absence of proof that the marriage between the parties was not void on account of the contravention of the provisions contained in Section 5, the lady will not be entitled to claim maintenance Marriage of a woman, even if it in accordance with Hindu rites, with a man, having a spouse living at the time of the marriage, is a nullity in the eye of 1

2

Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC 26 Bombay. 1989 Cri.LJ 1274.

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law. The lady will not get the status of a legally wedded wife. She is accordingly not entitled to the benefit of Section 125 of the Code of Criminal Procedure.” It would thus means that the spouse approaching the Court under Section 125 of the Cr.P.C. will have to establish at trial that there was a lawful marriage between the spouses and that there was no impediment existing at the relevant time which would invalidate their marriage. 1 It is not necessary for the wife that the she must prove that she was legally wedded. Strict and literal construction should not be preferred. 2 There is no rule of Hindu Law sanctioning early marriage of male children and there is no duty upon parents or guardians to marry their sons or male wards before they attain majority. The practice of early marriage of Hindu minors may be sanctioned by usage; but it has been disapproved by the passing of the Child Marriage Restraint Act of 1929. 3 The child marriage has not been invalidated by the provisions of the Hindu Marriage Act. Section 11 of the Act deals with void marriages. That section relates only to marriages held in contravention of Clauses (I), (iv) and (v) of Section 5. That section does not refer to Clause (iii) of Section 5. Section 12 refers to voidable marriage. That sections deals only with marriages in contravention of the conditions specified in clause (ii) of Section 5. The section does not also deal with clause (iii) of section 5. Thus the marriage in contravention of Clause (iii) of Section 5 is neither void nor voidable under the provisions of the Hindu Marriage Act. The only other relevant provision is Section 18 of the Act, which provides for punishment for contravention of the conditions specified in Section 5(iii) also. The punishment will be imprisonment, which may extend to 15 days or with fine, which may extend to Rs.1,000/- or both. Thus, the only provision which will come into play in the event of contravention of Section 5(iii) is Section 18 of the Hindu Marriage Act, 1955 and nowhere does the Act declare the marriage to be illegal or invalid or void. 4 The only provision attracted in Sub-section 5(iii) of the Hindu Marriage Act, 1955, which by virtue of Section 18 thereof at best can 1

2 3

4

Kantilal Punjaji Chavda vs. Nanubhai Kantilal Chavda, II (1993) DMC 551 Gujarat. Laxmibai vs. Ayodhya Prasad alias Ramadhar, AIR 1991 MP 47. Ram Jash Agarwalla vs. Chand Mandal, ILR (1937) 2 Cal 764: 41 CWN 1176. Seema Devi alias Sirmaran Kaur vs. State of H.P., 1998 (2) Crime 168 (H.P).

Disabilities depriving maintenance—Validity of marriage

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lead to imprisonment of upto 15 days and/or fine which may extend to Rs.1,000/- or both. 1 Wife can not seek divorce or judicial separation on the ground of child marriage. The plea of child marriage can also not be raised as a defence to seek relief of restitution of conjugal rights. 2 A marriage solemnised in contravention of the age mentioned in Clause (iii) of Section 5 of the Hindu Marriage Act, 1955 can neither be declared ab initio void nor voidable. The consequences, if any, which flow from that contravention are given in Section 18 and that is that a person who procures a marriage of himself or herself in such contravention shall be punishable with imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both. No other result is stated in the Act to flow from the contravention. 3 The minority of the wife or of her guardian in marriage was by itself not a ground for getting it declared null and void under Section 11 or its annulment under Section 12. 4 However there is a different view also. A marriage between the bridegroom and the bride, if their ages do not satisfy the requirements of clause (iii) of Section 5, cannot be solemnised as it is prohibited under clause (iii) of Section 5, and that it is not necessary that, in the event of contravention of clause (iii) of Section 5, either party to the marriage should rush to the Court for declaring that marriage as null and void and that such a marriage is void ab initio and is no marriage in the eye of law. 5 The marriage under the Hindu Law is a sacrament and not a contract. The minority of an individual may operate as a bar to his or her incurring contractual obligations. But it cannot be impediment in the matter of performing a necessary ‘samskars’. A minor’s marriage without the consent of the guardian can be held to be valid also on the application of the doctrine of factum valet. Consequently the marriage of Hindu minor cannot be held to be invalid for want of proof that his guardian consented to it. 6 1 2 3 4 5

6

Neetu Singh vs. State, 1999 (49) DRJ 70. Mohinder Kaur vs. Major Singh, AIR 1972 P&H 184. Gindan vs. Barelal, AIR 1976 MP 83. Naumi vs. Narotam, AIR 1963 HP 15. P.A. Saramma vs. G. Ganapatulu, AIR 1975 AP 193: (1975) 1 APLJ 37. Sivanandy vs. Bhagvathyamma, AIR 1962 Mad 400.

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There can be no doubt that a Hindu marriage is a religious ceremony. According to all the tests it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious rites prescribed for purification of the soul. It is binding for life because the marriage rite completed by saptapadi or the waling of seven steps before the consecrated fire creates a religious tie, and a religious tie when once created, cannot be united. It is not a mere contract in which a consenting mind is indispensable. The person marrying may be a minor or even of unsound mind, and yet, if the marriage rite is duly solemnised, there is a valid marriage. 1 In regard to customary marriage it has been held that upon the proof of custom such marriage can not be disputed after a long time. 2 But where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. 3 The doctrine of factum valet was quite well known to Hindu Law test writers and the relevant Sanskrit quotation is — ‘a fact cannot be altered by a hundred texts’. The doctrine in the case of the marriage of a minor was that the factum of marriage, which was solemnised, could not be undone by reason of a large number of legal prohibitions to the contrary. Under Section 4 of the Hindu Marriage Act, it is only when there is a clear provision in the Hindu Marriage Act that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Act shall cease to have effect in so far as it is inconsistent with any of the provisions of the Act. 4 Threat of physical violence or death will constitute “force”. The force may be physical or moral and not as defined under Section 349 IPC. Therefore, in the facts and circumstances of the case what the court has to see, whether any threat was held out to the wife, may be prior to the date of marriage. It was her case that her objectionable photographs were taken by the respondent after intoxicating her. Under fear that her objectionable photographs would be made public, 1

2

3 4

Venkatacharyulu vs. Rangacharyulu 1891 ILR 14 Mad 316: 1 Mad LJ 85. Shakuntalabai vs. L.V. Kulkarni, AIR 1989 SC 1359: 1989(2) SCC 526: 1989(2) SCR 70: 1989(1) Scale 737: 1989(1) JT 607: 1989(1) DMC 536 Mookka Kone vs. Ammakutti Ammal, AIR 1928 Mad 299 (FB) Pinninti Venkataramna vs. State, AIR 1977 AP 43.

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the respondent started blackmailing her. He also extended threat of kidnapping her younger sister. Under fear and threat, she involuntarily and under pressure agreed to perform marriage ceremonies at the Mandir as well as before the Registrar of marriage. Therefore, in view of this statement of the appellant, it was held that the Court below erroneously presumed that since she appeared before the Registrar of Marriage and did not complaint to him about the threat, therefore, her marriage was performed with her consent. This presumption, it was held, was based on the imagination of the Trial Court himself and was not borne from the record. 1 Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to Section 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in Section 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnised in violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a

1

Anuj Sharma vs. Suresh Kumar, AIR 1998 Del 47: 1997 (3) AD 504 (Del): 1997 (67) DLT 127.

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wife, and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained. 1 The Court arrived at a finding that the marriage of the plaintiff with the defendant as null and void. It was held that the judgment, order or decree in exercise of matrimonial jurisdiction which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character not as against any specified person but absolutely could be rendered only by a competent Court having jurisdiction and it is a decision in rem and not in personem alone. Both the Courts adverted to the contentions raised by the husband to the factum of his marriage with the plaintiff as being null and void and in view of the contravention of clauses (i) of Section 5 of the Hindu Marriage Act. But the findings of the Courts that the petition under Section 18 of the Hindu Adoptions & Maintenance Act as being maintainable was held to be not legally sustainable. In view of the fact that the plaintiff whose marriage was a nullity, she cannot be construed as a wife under Section 18 of the Hindu Adoptions & Maintenance Act for the purpose of seeking maintenance. Section 18 contemplates a valid marriage solemnized under the Act and not a marriage of nullity as envisaged under Section 11 of the Hindu Marriage Act. In view that, the precondition for the plaintiff to claim maintenance under Section 18 of the Hindu Adoptions & Maintenance Act is that her marriage should be a marriage de hors Section 11 of the Hindu Marriage Act. The question of any further declaration by the plaintiff that her marriage as being null and void would not arise since her marriage is non est as in the eye of law and she could not be characterized as a wife for the purpose of entitlement to the maintenance under Section 18 of the Hindu Adoptions & Maintenance Act, 1956. 2 If the consent of the spouse was obtained by fraud as to the nature of the ceremony as to the nature of the material fact or circumstance concerning the respondent, the marriage can be annulled. It is not necessary that consent is obtained by practicing fraud at the time of solemnization of the marriage. It is enough if it was obtained even at an 1

2

Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93: 1988 CrLR (SC) 182: 1988(1) Crimes 594: 1988(1) Ker LT 416. Basappa vs. Siddagangamma, II (1992) DMC 167 Kar.

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earlier stage. In these circumstances It was held that the consent of the husband was obtained by fraud and misrepresentation as to material facts concerning the respondent and that he is entitled to a decree for annulment under Section 12(1)(c) of the Act. 1 In view of the specific finding that the question of marriage of plaintiff with defendant as being null and void the Civil Court’s power to adjudicate factum of maintenance under Section 18 of Hindu Adoptions & Maintenance Act, 1956 cannot be legally sustained. Therefore it was held that in all cases, where marriage is a nullity as envisaged under clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act the question of a wife claiming maintenance under Section 18 of the Hindu Adoptions & Maintenance Act, 1956 would not arise. 2 A voidable marriage has to be regarded as good for all purpose until annulled by a decree of nullity the Court. It is the option of the parties to the marriage whether they want to declare the marriage a nullity or not. A voidable marriage means that it was valid at the time it takes place but subsequently, it becomes a nullity on certain facts coming to the notice of one of the parties to the marriage and then that party can get a declaration to the effect that the marriage is an nullity. It cannot be said that the marriage was a nullity from the very inception so as to say that the relationship of husband and wife did not come into existence. When once the relationship of husband and wife is to be accepted then either party can be granted maintenance in accordance with provisions of Section 25 of the Hindu Marriage Act. 3 In one case it was held that assuming that the non-applicant was below 15 years of age, the married was not void under Section 11 of the Hindu Marriage Act. It may be that the marriage was voidable at the instance of the applicant. Therefore if was held that if the marriage was voidable at the instance of the applicant the marriage would continue to be valid unless it was declared to be void by the appropriate court by initiation of proceedings under the relevant provisions of the Hindu Marriage Act. 4

Working wife In one case the opposite party admitted to be working as an Anganbadi worker and getting salary of Rs. 500/-, but learned Magistrate after taking into consideration her circumstances as well as the 1 2 3 4

Brijinder Bir Singh vs. Vinod alias Parminder, AIR 1995 P&H 42. Basappa vs. Siddagangamma, ibid. Hashish Sharma vs. Sushma Sharma, I (1996) DMC 303 Raj. Babarao vs. Shobhatai, II (1985) DMC 161 Bombay.

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necessities has granted a sum of Rs. 300/-. Petitioner has not led any evidence to prove that income of Rs. 500/- of the opposite party was sufficient to sustain her livelihood. On the other hand, opposite party has stated in her evidence that due to insufficiency of income she is unable to sustain her livelihood. In that respect, she was not at all crossexamined. It was therefore held that, learned Magistrate was justified in granting the monthly maintenance @ of Rs. 300/- in favour of the opposite party. 1 An applicant is not entitled to maintenance if she is a working lady, even if, she is not attending the office for one reason or the other. However, she was held to be entitled to litigation expenses to the tune of Rs. 1000/-. It was further observed that the wife may either apply for her transfer to the concerned authorities on compassionate grounds and the Court expressed hope that if a good case for transfer is made out, she would be accommodated because according to her, the husband was not permitting her to attend the office. 2

1

2

Sarat Chandra Pattnaik vs. Binodini Pattnaik, II (1999) DMC 356 Orissa. Pushplata Sharma vs. Yash Paul Sharma, I (1990) DMC 517 P&H.

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Chapter 5

Duty to maintain SYNOPSIS Introduction....................................201 General ..........................................203 Burden of proof ..............................205 Daughter in law .............................206 Determination of neglect................207 Duty of married daughter ..............207

Duty of son..................................... 209 Duty to maintain children.............. 210 Effect of support of relatives.......... 211 Nature of obligation ...................... 212 Refusal to join................................ 212 Scope of obligation of husband ..... 213

Introduction The ancient Hindu Society has always placed the wife on a high pedestal. It is said that, ‘the house (building) is not the house. The mistress of the house is said to be the house. A house without the lady of the house is worse than a dreary forest’. Manava Dharma Sastra or the Institutes of Manu with the Gloss of Kulluka, comprising the Indian system of duties, religious and civil, translated by Sir Willian Jones and collated with the Sanskrit Text by Grayes Chammey Hughten, Esq. Third Edition, Chapter 3 verses 55 to 60 read as follows:— 55. Married women must be honoured and adorned by their fathers and brethren, by their husbands, and by the brethren of their husbands, if they seek abundant prosperity. 56. Where females are honoured there the deities are pleased; but where they are dishonoured, there, all religious acts become fruitless. 57. Where female relations are made miserable, the family of him who makes them so, very soon wholly perishes; but, where they are not unhappy, the family always increases. 58. On whatever houses the women of a family, not being duly honoured, pronounce an imprecation, those houses, with all that belong to them, utterly perish, as if destroyed by a sacrifice for the death of an enemy. 59. Let those women, therefore be continually supplied with ornaments, apparel and food at festivals and at jubilees, by men desirous of wealth.

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60. In whatever family the Husband is contented with his wife, and the wife with her husband, in that house will fortune be assuredly permanent. It was in the background of above Hindu shastric Law that sections 18 to 21 of Hindu Adoptions & Maintenance Act, 1956 were enacted. These sections are as under: 18. Maintenance of wife.—(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. 19. Maintenance of widowed daughter-in-law.— (1)A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance— (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughterin-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

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20. Maintenance of children and aged parents.— (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation: In this section “parent” includes a childless stepmother. 21. Dependants defined— For the purposes of this Chapter "dependants" mean the following relatives of the deceased:— (i) his or her father; (ii) his or her mother; (iii) his widow, so long as she does not re-marry; (iv) his or her son or the son of his predeceased son or the son of a predeceased son of his predeceased son, so long as he is a minor: provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's estate, and in the case of a great-grandson, from the estate of his father or mother or father's father or father's mother; (v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased …………………………………… Similarly section 125 of Criminal Procedure Code, 1973 also cast a duty to maintain to prevent vagrancy and destitution. This has been dealt with in more detail in the chapter relating to ‘Summery Remedy’. This chapter relates to the duty of various persons to maintain the dependants especially the husband to maintain the wife.

General It is the duty of husband especially under Hindu law to maintain his wife. A matrimonial alliance which is nurtured and sustained through love and affection is like a tender plant which withers away in the absence of sun and water for its growth. In the words of Sprat. “A great proportion of the wretchedness which has embittered married life, has originated in a negligence of trifles. Connubial happiness is a thing of too fine a texture to be handled roughly. It is a sensitive plant. Which will not bear even the touch of unkindness; a delicate flower, which indifference will chill and suspicion blast. It must be watered by the showers of tender

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affection, expanded by the cheering glow of kindness, and guarded by the impregnable barrier of unshaken confidence. Thus matured it will bloom with fragrance in every season of life, and sweeten even the loneliness of declining years”. 1 The ancient Hindu Society has always placed the wife on a high pedestal. It is said that , “, ‘the house (building) is not the house’. The mistress of the house is said to be the house. A house without the lady of the house is worse than a dreary forest”. Manava Dharma Sastra or the Institutes of Manu with the Gloss of Kulluka, comprising the Indian system of duties, religious and civil 2, read as follows:— 55. Married women must be honoured and adorned by their fathers and brethren, by their husbands, and by the brethren of their husbands, if they seek abundant prosperity. 56. Where females are honoured there the deities are pleased; but where they are dishonoured, there, all religious acts become fruitless. 57. Where female relations are made miserable, the family of him who makes them so, very soon wholly perishes; but, where they are not unhappy, the family always increases. 58. On whatever houses the women of a family, not being duly honoured, pronounce an imprecation, those houses, with all that belong to them, utterly perish, as if destroyed by a sacrifice for the death of an enemy. 59. Let those women, therefore be continually supplied with ornaments, apparel and food at festivals and at jubilees, by men desirous of wealth. 60. In whatever family the Husband is contented with his wife, and the wife with her husband, in that house will fortune be assuredly permanent. 3 Under the old Hindu Law a person was under personal obligation to maintain the wife from the moment of marriage, whether he is possessed of any property or not. Though under the Hindu Women’s 1

2

3

Manali Singhal vs. Ravi Singhal, 1998 (6) AD 749: 1999 (77) DLT 700: AIR 1999 Del 156: 1998(6) AD(Delhi) 749: 1999(77) DLT 693: 1999(1) DMC 355: 1999 RLR 133: 1999(1) RCR(Civil) 436. translated by Sir Willian Jones and collated with the Sanskrit Text by Grayes Chammey Hughten, Esq. Third Edition, Chapter 3 verses 55 to 60 Meera Nireshwalia vs. Sukumar Nireshwalia, AIR 1994 Mad 168 (DB).

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Rights to Property Act of 1937, women were conferred with rights of succession, their rights of maintenance were not affected. But option was given to the Hindu widow to claim a share in the property or maintenance, whichever was more favourable to her. After the Hindu Married Women’s Rights to Separate Residence and Maintenance Act, 1946, which came into force on 23.4.1996, every married woman becomes entitled to separate residence and maintenance against her husband on one or more of the seven grounds mentioned therein. Thereafter, in 1956, the Hindu Adoptions & Maintenance Act was enacted. 1 Similar duty has been cast on dependents of a Muslim women under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986.

Burden of proof It is not possible to take a view that to constitute desertion under Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act, not only desertion but desertion with the animus to do so has to be established by the plaintiffs in a suit for maintenance. It has to be noticed that Section 18 of the Maintenance Act has been enacted exclusively for the benefit of the Hindu wife, who might be required to live separately from her husband; and Clauses (a) of Sub-section (2) thereof provides that if a Hindu wife lives separately from her husband, for that reasons alone she would not forfeit her right to claim maintenance in case her husband is guilty of desertion without reasonable cause and without her consent or against her wish or wilfully neglecting her. The Parliament has taken care to make clear what in the context the expression ‘desertion’ means. The expression ‘that is to say’ of abandoning her after the word ‘desertion is of great significance. 2 The expression ‘desertion’ as a ground for divorce between the parties to the marriage, need not be identical to that of the expression ‘desertion’ in the context of the claim for maintenance by the wife, deserted or neglected. For the purpose of ‘divorce’ under Section 13 of the Marriage Act, the petition could be either by the husband or wife; and the desertion could be either by the husband or the wife. Divorce cuts away the matrimonial tie completely; and the desertion to be used as a ground for such a relief should be of a higher degree; naturally it has to be desertion coupled with the animus to do so. That appears to 1 2

Neelakanta Muthuraja vs. Chinnammal, II (1999) DMC 176. Raghavan Radhakrishnan vs. Satyabhama Jayakumari, I (1986) DMC 87 Kerala.

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have been the legislative policy behind the rigidity in the matter of proof in regard to the expression ‘desertion’ as used in Section 13 of the Marriage Act in contrast to the expression used in Clauses (a) of Sub-section (2) of Section 18 of the Maintenance Act. If that rigidity by reading into the clause the word ‘animus’, which the Legislature has not chosen to incorporate, is insisted upon, it would defeat the very purpose of the legislation for protecting the interests of the abandoned and neglected wives. 1

Daughter in law Under Section 19 of the Hindu Adoptions & Maintenance Act, 1956, the liability of the father-in-law to maintain the widowed daughter-in-law arises only if he is in possession of coparcenary property. No liability arises when the father-in-law is not in possession of coparcenary property. The statutory liability of the father-in-law to maintain the widowed daughter-in-law in the event of his having coparcenary property passed on his death to the heirs inheriting his property. This is what is provided under Section 22. If there is no statutory liability for the father-in-law to maintain his widowed daughter-in-law the heirs taking his property cannot be saddled with any such obligation. Section 22 does not create any independent statutory obligation for the father-in-law to maintain the widowed daughter-in-law. The statutory obligation is created only under Section 19 and if he dies leaving no coparcenary property his heirs inheriting his property are under no legal obligation to maintain the widowed daughter-in-law. A harmonious construction of Section 19 to 22 can only lead to such interpretation. Otherwise we see the anomaly of a father-in-law having no coparcenary property and having no legal obligation to maintain his widowed daughter-in-law during the lifetime and yet, after his death, his heirs taking his property are statutorily made liable to maintain the daughter-in-law. The legislature would not have intended such an anomalous situation and an interpretation leading to an illogical conclusion should not be favoured. It follows that as the father-in-law died without leaving any coparcenary property, his heirs inheriting his self-acquired property, namely, the appellant is under no obligation to maintain the widowed daughter-in-law. 2

1

2

Raghavan Radhakrishnan vs. Satyabhama Jayakumari, I (1986) DMC 87 Kerala. M. Janakiraman vs. Meenakshi Ammal, II (1986) DMC 45 Madras.

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Determination of neglect When husband failed to examine himself to prove that divorced wife was duly maintained, neglect by husband can be inferred and claim of maintenance can not be denied on the ground of divorce. 1

Duty of married daughter Clause (a) deals with the right of the wife who is unable to maintain herself to claim maintenance from her husband. Clause (b) deals with the right of the children, who are minor, to get maintenance from their parents. Within the import of Clauses (b) even a married daughter is included. Clause (c) deals with a disabled child who has attained majority. The bracketed portion “not being a married daughter” covers only Clause (c) and not the other sub-clauses of Section 125(1) of the Code. This is obvious from the use of specific expression “whether married or not” in Sub-clauses (b) of Section 125(1). Then comes Subclause (d) which confers a right upon a father or mother unable to maintain himself or herself to claim maintenance. The word “person” he not defined in the Code, nor the expression “his” is defined. However, by Section 2(y) it is laid down that the words and expression used therein and not defined but defined in the Penal Code have the meaning respectively assigned to them in that Code Section 8 of the Penal Code have the meanings respectively assigned to them in that Code. Section 8 of the Penal Code reads as under:— “Gender. The pronoun ‘he’ and its derivatives are used of any person, whether male or female. Section 11 of General Clauses Act, 1897 defines the word “person”, which includes any Company or Association, or body of persons, whether incorporated or not. The definition of the word “person” is inclusive and, therefore, obviously not exhaustive. Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. The word “person” is defined in Section 3(42) of the General Clauses Act and the definition is akin to the definition in Section 11 of the Penal Code. Further, by Section 2(y) of the Cr.P.C. it is provided that the words and expression used in the Code are to be understood as defined by the Penal Code. Therefore, it is quite clear that the pronoun “he” and its derivatives as used in Section 125 of the Cr.P.C. would include in its import, both a male or a female. Section 125(1)(d) contains no words of

1

Bai Tahira vs. Ali Hussain Fissalli Chothia, AIR 1979 SC 362: 1979 CrLJ 151: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC) 616.

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limitation to justify the exclusion of a married daughter from the scope of the said section. 1 “Section 125, Cr.P.C. does not contain any provision prohibiting a father from claiming maintenance from a married daughter. The submission that once a daughter is married, she belongs to a different family and has, therefore, no liability to maintain her father, has no merit in it. The daughter does not cease to be the daughter after she is married into another family. If she has sufficient means of her own, the obligation is cast on her to took after her parents who are otherwise unable to maintain themselves.” Further, the Andhra Pradesh High Court has also observed: “It cannot be that if there are no sons but daughters, the parents have to remain destitute though the married daughters have sufficient means of their own to provide for maintenance of their destitute parents.” A similar view is taken by the Kerala High Court in M. Areefa Beevi v. Dr. K.M. Sahib. 2 In that case the Kerala High Court has considered the decision of the Punjab and Haryana High Court in Raj Kumari v. Yashodha Devi. The decision of the Punjab and Haryana High Court is based on a passage from the report of the Joint Committee of the Parliament. The said report reads as under:— “The Committee considers that the right of the parents not possessed or sufficient means, to be maintained by their son should be recognized by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means if there are two or more children the parents may seek the remedy against any one or more of them.” After quoting this part of the report, the Kerala High Court observed:— “Here instead of using the expression ‘sons’, the expression used is ‘children’. This is indicative of the intention of the legislature that no distinction was intended to be made between son and daughter. The cumulative effect of all these leads me to the conclusion that under Section 125 of the Cr.P.C. a daughter also has the liability to maintain her parents who have no ostensible means of livelihood.” 1

2

As observed by the Andhra Pradesh High Court in Repalli Masthanamma’s case (1982) 1 Andh WR 393. 1983 Crl. LJ 412.

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Therefore no distinction can be made between a married on an unmarried daughter in that behalf, since even after the marriage the daughter continues to be the daughter and her obligation to maintain her infirm parents, who are unable to maintain themselves, does not come to an end. 1 It is true that Cl. (d) of section 125 of Criminal Procedure Code, 1973 has used the expression ‘his father or mother’ but the use of the word ‘his’ does not exclude the parents claiming maintenance from their daughter. Section 2(y), Cr. P.C. provides that words and expressions used herein and not defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 8 of the Indian Penal Code lays down that the pronoun ‘he’ and its derivatives are used for any person whether male or female. Thus, in view of Section 8, IPC read with Section 2(y), Cr. P.C. the pronoun ‘his’ in Cl. (d) of Section 125(1), Cr. P.C. also indicates a female. Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Therefore, the pronoun ‘his’ as used in Cl. (d) of Section 125(1), Cr. P.C. includes both a male and a female. In other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. Before ordering maintenance in favour of a father or a mother against their married daughter, the Court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself. 2 Thus with this caveat the Supreme Court affirmed the above decision of High Court.

Duty of son Whether a son is liable to maintain his mother during the life time of his father, the law appears to be in complete agreement with the Hindu social morality. Now both our statutory law and case law on this point fully recognize the obligation of the son to maintain both during the life time of the father and even thereafter his mother. In Mulla’s Principles of Hindu Law (Paragraph 548) it is stated:

1

2

Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai, II (1986) DMC 370 Bombay. Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, AIR 1987 SC 1100: 1987(2) SCC 278: 1987(2) SCR 331: 1987(1) Scale 379: 1987(3) J.T. 46: 1987 Mat. L.R. 139.

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“A son is under a personal obligation to maintain his aged father. He is also under a similar obligation to maintain her, whether or not he has inherited property from his father.” Subbarayana vs. Subbakka 1 and Satyanarayana Murthy vs. Ram Subbamma 2 are cited by Mulla for this Principle of Hindu Law. Section 20(1) of the Hindu Adoptions & Maintenance Act gives a statutory recognition to this obligation of son to maintain his mother. According to this section ‘a Hindu is bound during his or her life time to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.’ The language of this section is clear in casting an immediate and unalterable duty on the son to maintain his aged or infirm parents. The section casts an obligation on a son to maintain his mother without reference to the fact whether the father is alive or dead. The obligation of the son to maintain his aged or infirm parents extends even when both parents are alive. Enforcement of that obligation cannot be postponed till the death of one of the parents. 3

Duty to maintain children Section 3(1) of Muslim Women (Protection of Rights on Divorce) Act, 1986, deals with “Mahr” or other properties of a Muslim woman to be given to her at the time of divorce. It lays down that a reasonable and fair provision has to be made for payment of maintenance to her during the period of Iddat by her former husband. Clause (b) of Section 3(1) (supra) provides for grant of additional maintenance to her for the fosterage period of two years from the date of birth of the child of marriage for maintaining that child during the fosterage. Maintenance for the prescribed period referred to in Clause (b) of Section 3(1) is granted on the claim of the divorced mother on her own behalf for maintaining the infant/infants for a period of two years from the date of the birth of the child concerned who is/are living with her and presumably is aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infant/infants upto a period of two years. It has nothing to do with the right of the child/children to claim maintenance under Section 125, Cr. P.C. So long as the conditions for the grant of maintenance under Section 125, Cr. P.C. are satisfied, the rights of the minor children, unable to maintain themselves, are not affected by Section 3(1)(b) of the 1986 Act. Under Section 125, Cr. P.C. 1 2 3

1885 Mad. 236. AIR 1964 AP 105. Vishnuvajhula Venkata vs. Subrahmanyam, II (1985) DMC 201 Hyderabad.

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the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125, Cr. P.C. which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125, Cr. P.C. to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125, Cr. P.C., cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125, Cr. P.C. where they are minor and are unable to maintain themselves. Muslim father’s obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125, Cr.P.C. is absolute and is not at all affected by Section 3(1)(b) of the 1986 Act. Indeed a Muslim father can claim custody of the children born through the divorced wife to fulfil his obligation to maintain them and if he succeeds, he need not suffer an order or direction under Section 125, Cr.P.C. but where such custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that he has divorced their mother. The right of the children to claim maintenance under Section 125, Cr.P.C. is separate, distinct and independent of the right of their divorcee mother to claim maintenance for herself for maintaining the infant children upto the age of 2 years from the date of birth of the concerned child under Section 3(1) of the Act. There is nothing in the 1986 Act which in any manner affects the application of the provisions of Sections 125-128 of the Cr.P.C. relating to grant of maintenance insofar as minor children of Muslim parents, unable to maintain themselves, are concerned. 1 While it is both possible and desirable to bring about a clean break as between husband and wife, it is neither possible nor desirable to bring about a clean break between father and son.

Effect of support of relatives In one case the wife had candidly stated that she had been solely depending on her parents for her livelihood. The fact that even after the 1

Noor Sabba Khatoon v. Mohd. Quasim, 1997 CrLJ 3972: 1997 AIR (SC) 3280: 1997 CrLR (SC) 536: 1997 SCC (Cr) 924: 1997(3) Crimes 106: 1997(2) Ker LT 363: 1997(2) Pat LJR 110.

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impact of modern life, familial nexus is cherished and nurtured in this country, and consequently a helpless daughter and grandchildren happen to be cared for and looked after, by the parents or grandparents, as the case may be, is no ground for the husband to disown his own legal responsibility in the matter. 1

Nature of obligation Under the Hindu law the liability to maintain others arises in a two-fold manner: (a) from the existence of a particular relationship independent of the possession of any property, (b) on possession of property. In the first category fall the cases of the liability to maintain a person’s wife, minor sons, and unmarried daughters and aged parents. Here the obligation is personal and is brought into existence by the relationship. In the other category are those where the liability is dependent on the possession of coparcenary property. Assuredly the liability to provide for the maintenance of the disqualified heir under the Hindu law would fall under the latter category also, i.e., it is not confined to the particular relationships which cast the obligation to maintain. Thus a brother would have to be maintained out of the joint property where he is disqualified from claiming partition. No doubt, the texts deny him the right to partition but that is not the subject matter of the discussion here. If the right to be maintained is traceable to his right to the property in which he is excluded from participating in full, it would not be a violent inference to hold that he has an incipient and vestigial interest in that property which is not capable of being asserted against other coparceners, but when there is none entitled to enjoy it as coparcener, blossoms into a full right. 2

Refusal to join The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live

1

2

Radha Kumari vs. K.M.K. Nair, I (1983) DMC 432 Kerala: AIR 1983 Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217. Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349: 1965(2) MadLJ (SC) 122: 1965(2) SCJ 638.

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with husband without any just cause and there is no evidence of illtreatment by the husband, wife is not entitled to maintenance. 1 In this case, it was noticed that the husband had even sent a registered notice to the wife asking her to stay with him but she refused to accept the notice. She was therefore held to be not entitled to maintenance. 2

Scope of obligation of husband The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognize the subordinate interest of the wife in her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependents of their maintenance. They further treat her as a member of a Hindu joint family entitled to be maintained out of joint funds. The decisions of the various High Courts to the same line, recognize her subordinate interest in her husband’s property, and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore, is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of Section 39 of the T.P. Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim. 3 When the husband is alive, he is personally liable for the wife’s maintenance, which is also a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband’s property. But after his death, his widow’s right of maintenance becomes limited to his estate, which when it passes to any other heir, is charged with the same. There cannot be any doubt that under Hindu Law, the wife’s or widow’s maintenance is a legal charge on the husband’s estate, but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely, a claim against the husband’s heir, or an equitable charge on his estate; hence the husband’s debts are held to have priority, unless it is made a charge on the property on the property by a decree. 4

1 2 3 4

Bheekha Ram vs. Goma Devi, 1999(1) HLR 543 Rajasthan. Bheekha Ram vs. Goma Devi, ibid. Banda Manikyam vs. Banda Venkayamma, AIR 1957 AP 710. Vaddeboyina Tulasamma vs. V. Sesha Reddi, 1977 (3) SCR 261; AIR 1977 SC 1944; 1977 (3) SCC 99.

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Therefore, according to Sastri’s interpretation of Shastric Hindu Law the right to maintenance possessed by a Hindu Widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband’s property though in a subordinate sense i.e. the wife has no dominion over the property. The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkaya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right. 1 Under the Hindu law the liability to maintain others arises in a twofold manner: (a) from the existence of a particular relationship independent of the possession of any property, (b) on possession of property. In the first category fall the cases of the liability to maintain a person’s wife, minor sons, and unmarried daughters and aged parents. Here the obligation is personal and is brought into existence by the relationship. In the other category are those where the liability is dependent on the possession of coparcenary property. Assuredly the liability to provide for the maintenance of the disqualified heir under the Hindu law would fall under the latter category also, i.e., it is not confined to the particular relationships which cast the obligation to maintain. Thus a brother would have to be maintained out of the joint property where he is disqualified from claiming partition. No doubt, the texts deny him the right to partition but that is not the subject matter of the discussion here. If the right to be maintained is traceable to his right to the property in which he is excluded from participating in full, it would not be a violent inference to hold that he has an incipient and vestigial interest in that property which is not capable of being asserted against other coparceners, but when there is none entitled to enjoy it as coparcener, blossoms into a full right.2

1

2

Vaddeboyina Tulasamma vs. V. Sesha Reddi, 1977 (3) SCR 261; AIR 1977 SC 1944; 1977 (3) SCC 99. Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349: 1965(2) Mad LJ (SC) 122: 1965(2) SCJ 638.

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Chapter 6

Persons entitled to maintenance SYNOPSIS Introduction....................................215 Aspiring wife ..................................215 Children .........................................216 Concubine ......................................216 Coparcener ....................................217 Daughter-in-law.............................218 Divorced wife .................................219 Father of illegitimate child ............221 Finding of legitimacy .....................221 Husband .........................................222 Illegitimate child ............................223 Major children ...............................225 Masculine includes feminine ..........226 Minor children ...............................228 Mother ............................................228

Non working husband .................... 229 Parents of married daughter ......... 230 Right of divorced wife.................... 231 Right of Hindu widow .................... 231 Right of husband ............................ 232 Right of illegitimate son ................ 232 Right of unmarried daughter ......... 233 Siblings .......................................... 233 Statutory right................................ 233 Unborn child.................................. 234 Unmarried daughter ...................... 234 Widowed daughter ......................... 235 Widowed daughter-in-law ............. 235 Wife................................................ 236 Wife from void marriage ............... 238

Introduction Every person is not entitled to maintenance. It only certain class of persons who have been considered socially and economically weaker and therefore been provided maintenance from different sources. The source of this legislation is generally custom, shastric law, as also social practices etc. as prevail in the country.

Aspiring wife The non-applicant did not claim to be the legally wedded wife of the applicant Suresh and claimed relief of prohibitory injunction against non-applicantthat he should not marry elsewhere. In view of the aforesaid fact, it was held that the non-applicant is not entitled to get any maintenance under any law for the time being in force during the pendency of the suit filed by the non-applicant. As such, the impugned order of the Trial Court awarding maintenance pendente lite is prima

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facie illegal and in excess of the jurisdiction vested in the Court and deserves to be set aside. 1

Children It is the duty of father to maintain the children. Where wife is carrying on business, she is prima facie not entitled to maintenance but children are entitled to maintenance. 2 The need of the child is as much the need of the mother, because a mother is not expected to neglect the need of the child and is on the contrary expected to meet the need of the child even at the expenses of her own maintenance. It was therefore held that there is no doubt that while granting maintenance under Section 24 of the Act to a wife not only her own need for maintenance of herself would be considered but if she had a child to look after, need of the child shall also be taken into account.3 The word ‘wife’ or the ‘husband’ should not be interpreted in such a strict and literal sense so as to rule out grant of maintenance to the children who live with the wife and are dependent upon her. When the children live with the wife and in the very nature of the circumstances, the requirement of wife will include the requirement of minor children dependent on her and living with her. That is borne out from the reading of Section 24 of the Hindu Marriage Act, 1955. 4

Concubine If a man and a woman choose to live together and indulge into sex no such married status can be conferred automatically by their so living upon such a woman. No legal status of a wife she is entitled to in the eyes of law and society. Both law and society treat such woman either a concubine or a mistress of that person with whom she is so living. The two may also agree to live together to satisfy their animal needs. But such a union is never called a married nor a woman leading such life is bestowed with the sacrosanct honour of a wife. No marital obligations accrue to such a woman against her husband. Secondly such a life is called adultery. The applicant has to prove her status under personal law before she can legally be entitled to maintenance from her spouse. 5

1 2

3 4 5

Suresh vs. Nanubai, I (2001) DMC 426 MP. Pushpa Kathju vs. Amit Mohan S. Dahiya Badshad, 1996 (62) DLT 525: 1996 MLR 258: 1996(3) AD(Delhi) 353. Rajendra Kumar vs. Savitribai, I (1992) DMC 567 MP. Pushpa Devi vs. Om Prakash, II (1985) DMC 107 Raj. Malti vs. State of Uttar Pradesh, I (2001) DMC 204 All.

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In one case the alleged husband claimed that he was not married to her at all. She was working in his house as a cook and in the process an illicit intimacy developed between them. They started living together as husband and wife due to the aforesaid illicit relationship. It was held that it was not enough to declare that they are married person or applicant was married to the opposite party. While denying the maintenance, it was observed as under: ‘The applicant has proved, by evidence, that she initially was married to one Devi Das and from his house she had eloped and lived, in between with several persons before becoming intimate with the applicant. This in law is not enough to declare any woman a legally wedded wife. Wife means a legally wedded wife according to Section 125, Criminal Procedure Code. There ought to be married according to religion or customs prevalent amongst their community. A marriage carries a legal social or religious sanction behind it. It can be broken only in the manner prescribed either by law, religion or custom prevalent amongst the parties to any such marriage. It provides a guarantee and also a sense of security to the woman why enters into such nuptial bondage especially. In the present case there is evidence on record, as admitted by her, that she was turned out of the applicant’s house by his wife after the administration of beating to her. 1 A Brahmin woman and her illegitimate son of Sudra father are entitled to maintenance from the Estate after the death of father. The claim of maintenance cannot be defeated on account of caste of the woman. This position has remained unaffected by provisions of Hindu Adoptions and Maintenance Act, 1956. 2

Coparcener In the case of an ordinary joint family property, the members of the family can claim four rights: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; (4) the right of survivorship. 3

1 2

3

Malti vs. State of Uttar Pradesh, I (2001) DMC 204 All. Amireddy Raja Gopala Rao v. Amireddi Sitharamamma, AIR 1965 SC 1970: 1965(2) SCWR 889: 1965(3) SCR 122. Mirza Raja Pushpavathi Vijayaram vs. Sri Pushavathi Visweswar, AIR 1964 SC 118: 1964(2) SCR 403; Shiba Prasad Singh vs. Rani Prayag Kumari Debi, AIR 1932 PC 216.

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The characteristic feature of ancestral coparcenary property is that members of the family acquire an interest in the property by birth or adoption and by virtue of such interest they can claim for right: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. 1 Though a coparcener has a right to seek maintenance. The member is entitled to maintenance so long as the family remains joint. 2

Daughter-in-law Under the Hindu law there is a moral obligation on the father-inlaw to maintain the daughter-in-law and the heirs who inherit the property are liable to maintain the dependants. It is the duty of the Hindu heirs to provide for the bodily and mental or spiritual needs of their immediate and nearer ancestors to relieve them from bodily and mental discomfort and to protect their souls from the consequences of sin. They should maintain the dependants of the persons of property they succeeded. Merely because the property is transferred by gift or by will in favour of the heirs the obligation is not extinct. When there is property in the hands of the heirs belonging to the deceased who had a moral duty to provide maintenance, it becomes a legal duty on the heirs. It makes no difference whether the property is received either by way of succession or by way of gift or will, the principle being common in either case. The moral obligation of a father-in-law possessed of separate or self-acquired property to maintain the widowed daughter-in-law ripens into a legal obligation in the hands of persons to whom he has either bequeathed or made a gift of his property. 3 Under section 19 of Hindu Adoptions and Maintenance Act one of the conditions for the father-in-law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents. A clear finding is necessary whether her parents have estate sufficient to maintain her and on what circumstances, she is unable to maintain herself or by her parents. For this purpose parents of plaintiff are required to be heard. This is possible if they are made parties to the suit. In their absence any finding will not bind them. Where, from the estate of the parents, the daughter-in-law can maintain herself, question of obligation of father-in-law does not arise. It is also to be found out 1

2 3

Maharaja Pratap Singh vs. Maharani Sarojini Devi, 1993 Supp(1) SCR 607: 1994 Supp (1) SCC 734: 1993 (2) HLR 272. Parbati Devi (Mt.) vs. Bansi Dhar, AIR 1943 All 360. T. A. Lakshmi Narasamba vs. T. Sundaramma, AIR 1981 AP 88 (FB).

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whether there is any coparcenary property in the hands of the father-inlaw from which daughter-in-law is deprived of her share. 1

Divorced wife Right of divorced wife to seek maintenance is not affected under the new Code wherein dissolution of marriage makes no difference on right to seek maintenance. 2 The word ‘wife’ in the sub-section does not have the extended meaning including a woman who has been divorced. In other words, the wordings contained in the said sub-section “if they are living separately on mutual consent” would apply to the wife who is not divorced. After divorce there is no question “mutual consent to live separately”. Therefore, Section 125(4), Criminal Procedure Code, does not operate. 3 After divorce the concept of living together being not enforceable under law, custom or practice, the factum of separate living does not by itself disentitle the divorce to claim for maintenance under Section 125 of the Code. Thus on a logical corollary it can well be recorded that the fact of desertion on which a decree of divorce was granted against the wife i.e., the divorced wife, the fact cannot be extended to post decree period. The factum of divorce and the change of the status from wife to divorced wife is a supervening circumstance which the Court, adjudicating the claim of maintenance under Section 125 of the Code, should not ignore. In this case it was held that no doubt, learned Magistrate did not specifically record about the supervening circumstance, but it is apparent from the impugned order the notwithstanding the separate living of the opposite party, her claim for maintenance was allowed because she is a divorced wife. 4 Even accepting that an agreement was executed by both the parties willingly, that would only show that there is a divorce on mutual consent. Section 125(4), Criminal Procedure Code will be applicable to the parties only when they decide to live separately by mutual consent temporarily. Once the marriage is dissolved, mutual consent for living

1 2

3

4

Raj Kishore Mishra vs. Meena Mishra, AIR 1995 All 70 (DB). Bai Tahira v. Ali Hussain Fissalli Chothia and another, 1979 CrLJ 151: AIR 1979 SC 362: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC) 616. K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras: 1999(1) HLR 3. Jashelal Agrawal @ Jain vs. Puspabati Agarwala, I (2000) DMC 592 Orissa: 1999(1) HLR 175.

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separately as contemplated under Section 125(4), Criminal Procedure Code would not come into play at all. 1 The legal position so far as the right of divorced wife to get maintenance under Section 125 of Criminal Procedure Code has practically been crystallised. The Hindu Marriage Act speaks of a decree in connection with a Hindu Marriage on a number of circumstances. As a matter of fact, there may be a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. There can also be a decree for judicial separation in terms of Section 10 of the Hindu Marriage Act. There may be decree passed in accordance with Section 11 of the Hindu Marriage Act declaring a marriage as null and void. There may be a decree under Section 12 of the Hindu Marriage Act where the marriage was otherwise valid but due to the presence of the ground mentioned in the said section it could be declared as void at the instance of one of the parties to the marriage. There may also be a decree of divorce under Section 13 of the Hindu Marriage Act at the instance of either of the parties for contravention of the different provisions mentioned in the said section. While an application under Section 25(1) maintainable by either party to the marriage and the Court having jurisdiction can pass an order under the section either at the time of passing the decree or at any time subsequent thereto, the scope of an application under Section 125 of Criminal Procedure Code is not so wide. Such an application is obviously guided by Section 125(1) of the Criminal Procedure Code since in case of husband and wife it can be preferred by the wife which includes a woman who has been divorced by or has obtained a divorce from her husband and has no re-married. Thus a wife during the continuance of a valid marriage as also a divorcee in terms of the explanation given in Clauses (b) to Section 125(1) of the Criminal Procedure Code are eligible to maintain an application under Section 125 of the Criminal Procedure Code. By implication in the event of a marriage being declared null and void under Section 11 of the Hindu Marriage Act or in the event of a marriage having been annulled in terms of Section 12 of the Hindu Marriage Act an application under Section 125 of the Criminal Procedure Code at the instance of the wife is not maintainable. 2

1

2

K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras: 1999(1) HLR 3. Rampada Biswas vs. Dolly Mitra, II (1999) DMC 689 Calcutta; See also Babulal vs. Sunita I (1986) DMC 256

Persons entitled to maintenance—Finding of legitimacy

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Father of illegitimate child In one case it was held that assuming that the petitioner was fathered by the respondent, even the admission of the petitioner’s mother that she was married as a second wife, the marriage is a nullity. Nowhere Section 125 Criminal Procedure Code contemplates that a person is entitled to claim maintenance against his illegitimate daughter or son. 1

Finding of legitimacy In one case the admitted facts were that the appellant and the respondent were close relations and not strangers before marriage. They were married on 11-5-1973 and the girl child was born on 5-12-1973. The respondent did not divorce the. appellant immediately after the child birth or even two or three months later but he divorced her only on 1610-1974. The child birth took place in the house of the respondent himself and hence there is no question of the birth of the child not being known to the respondent immediately. It was held that if the appellant was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the respondent would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the appellant or reported the matter to the village elders and relatives and sought for a divorce. On the contrary the respondent had continued to lead life with the appellant in a normal manner till the birth of the child. Even the confinement appears to have taken place in his house as otherwise the child’s birth would not have been registered in his village. The respondent had not disowned the child immediately after its birth or sent away the appellant to her parents’ house. Such would not have been his conduct if he had any doubt about the paternity of the child. On the sole ground that the child had been born in about 7 months’ time after the marriage it cannot be concluded that the child should have been conceived even before the respondent had consummated the marriage. Giving birth to a viable child after 28 weeks’ duration of pregnancy is not biologically an improbable or impossible event. 2 In “Combined Textbook of Obstetrics and Gynaecology” by Sir Gugald Baird 3 it is reported as under:— “In the case of Clark v. Clark (1939) 2 All ER 59 an extremely small baby, born alive 174 days after last possible date when intercourse with the husband could have taken place, and which 1 2

3

K. Kamaldevi vs. Kammala Kumara Sekhar, I (1994) DMC 183 AP. Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049: 1987 (1) SCR 1086: 1987 (2) DMC 225 SC. 7th Edition at page 162

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survived, was held to be legitimate. While it is most unusual for babies of this weight or gestation period to survive it does occasionally happen”. It was held that the learned Judge ought not, therefore, to have rushed to the conclusion that a child born in about 7 months’ time after the marriage of the parents should have necessarily been conceived even before the marriage took place. Section 112 of the Indian Evidence Act lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. 1 Lastly It was held that even if the child had been born after a fullterm pregnancy it has to be borne in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving in close terms. All these factors negate the plea of the respondent that the minor child was not fathered by him. 2

Husband Section 125 of the Code gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. In this context, it may be stated that a married daughter is also not excluded from her moral obligation to maintain her parents. The very object this Section is to provide a speedy remedy against starvation for the persons named therein. The remedy as provided in Section 125(1) of the Code is, however, open only to a wife or child either legitimate or illegitimate or to the parents of male of female, as the case may be, who are unable to maintain themselves. But by no stretch of imagination, it can be said that 1

2

Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049: 1987 (1) SCR 1086: 1987 (2) DMC 225 SC. Dukhtar Jahan vs. Mohammed Farooq ibid

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that remedy is also open to a husband who is unable to maintain himself. The husband may, under certain circumstances, seek maintenance from his wife under-Section 24 and 25 of the Hindu Marriage Act, 1955 but not under Section 125 of the Code. On plain reading of Section 125(1) of the Code, right to seek maintenance is available only to the persons named therein. 1 When there is a legal bar to claim maintenance under Section 125 of the Code by the husband against his wife, his application purported to be an application under Section 125 of the Code is certainly not maintainable under the Code. He may go to Civil Court for establishing his right to claim maintenance, but the Magistrate in exercising his power under Section 125 of the Code cannot pass an order for maintenance in his favour. That means the Magistrate who entertains such an application from husband under Section 125 of the Code is not competent to pass an order for maintenance. 2

Illegitimate child In view of the conclusive proof of legitimacy of a child born during the continuance of a marriage in the absence of proof of no access, the petitioner was entitled to the benefit of Section 112 of the Evidence Act. Wisely enough and in view of the gynaecological science, Section 112 of the Evidence Act contemplated the duration of pregnancy of 280 days or 9 months and 10 days. On this understanding it was observed, in view of the facts and circumstances of the case, as under: ‘Therefore, the maximum outer period of the pregnancy or gestation in case of the petitioner should have been till 21 st June, 1988. In such a situation it was possible for the respondent No. 1 to inquire and produce evidence to show that the petitioner was born after June, 1988 to put him out of the period of gestation and the evidence under Section 112 of the Evidence Act. Even then both the science and law in regard to period of gestation appears to be something different. Two hundred and eighty days as the possible duration of pregnancy appears to be not an invariable rule. Actually it may be more and in several cases, the birth could be beyond that period. Although fertilization generally takes place at the time of coitus, there will be some interval between insemination and fertilization when the sperm during its journey meets the ovum. The medical evidence appear to be that such interval may be as long as 21 days. The child born after 305 to 346 days after the last sexual intercourse or the access for sexual

1 2

Jayashri vs.Vibhas, I (1995) DMC 5. Jayashri vs.Vibhas, ibid.

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intercourse has been held to be legitimate, having due regard to the facts and circumstances of particular cases.’ 1 In another case it was held that even assuming that the child born was an illegitimate child, unless and until a finding to that effect is given by the Court, the claim for maintenance is liable to be entertained. 2 The object of Section 125 of the Code is to provide a summary remedy to save dependants fro destitution and vagrancy and this is to serve a social purpose, apart from independent of the obligation of the parties under their personal law. The right of the child legitimate or illegitimate under the Code is an individual right of the child in his or on her own right, independent of the mother. When a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the on us is on her to show that the child could only have been born through the alleged father under the circumstances of an exclusive relationship. 3 In such a case the woman being a highly interested person, the Court has a duty to see that her statement gets some independent corroboration, direct or circumstantial, that the claimant could have conceived the child when she and the alleged father had access to each other. Section 125 aims not to punish for the past, but to prevent future vagrancy by compelling those who are capable, to support those who are unable to support themselves and have a moral claim to support. 4 While deciding the case of entitlement of a child paternity and not legitimacy has to be seen. Where maintenance is claimed for an illegitimate child from an alleged father, it is not enough that the defendant would have been the father, but the Court has to find out that in all reasonability no one else could have been the father. 5 It is true that the courts should spare no pains to obviate a situation where a child is likely to suffer in respect of its reputation. It will, however, be cruel and unjust to an innocent person toiling hard in the desert regions, to be undeservedly attributed the paternity of a child, for whose birth he had no part to play nor any responsibility to shoulder. Difficult indeed is the life of many a wife who eagerly awaits the return 1

2 3

4 5

Abdul Khadar Munwar vs. Mohd. Iqbal Pasha, II (1995) DMC 250 AP. Vijay Motiram Awarkar vs. Pushpa, I (1990) DMC 592 Bombay. B. Mahdeva Roa vs. Yasoda Bai, AIR 1962 Mad. 141 and Durairaju vs. Neela, 1976 Crl. LJ. 1507. Jagir Kaur (Mst.) vs. Jaswant Singh, AIR 1963 SC 1521 Ahalya Bariha @ Barihani vs. Chhelia Padhan, I (1992) DMC 158 Ori.

Persons entitled to maintenance—Major children

225

of the dear ones after long periods of separation from home. The psychological and sociological problems which sometimes lead to domestic disturbances, have been, in recent times, the subject-matter of studies by researchers in the respective disciplines. Woman, whose intrinsic virtue and normal fidelity could be beyond question, may, occasionally though extremely rarely, have a fatal fall along the steep and slippery slopes of temptation. While one may sympathise with the victim, it will, at the same time, be unjust to make an innocent person pay for such a lapse of the other spouse. 1 In one case it was held that the perusal of the evidence led by the husband itself shows that he was only harbouring suspicion against the wife on the basis of some anonymous letters received by him. In his written statement, he had not alleged any facts or circumstances which led him to believe that suspicion either. For the first time in his deposition, he has stated that on a particular day, he returned home suddenly and had seen his wife with a stranger. Firstly, he has not seen anything incriminating. Only a person was sitting. But this fact is not alleged in his written statement. Then, he has adduced evidence to show that she was moving out and attending cinema with one Rokde. This specific fact is also not stated in his written statement. Moreover, no questions to that effect were asked to the applicant during her crossexamination on his behalf. In view of this fact it was held that it was more than obvious that the husband had started doubting the chastity of the wife on the basis of these anonymous letters received by him and had therefore, driven her out of the house and had not cared for the maintenance of the wife and children. The reasoning’s of the trial Judge was held to be sound and rational and the view taken by the trial Court that presumption which arises for the legitimacy of the children under section 112 of the Evidence Act has not been rebutted by the husband was held to be justifiable. 2

Major children The rule of law must run close to rule of life. The idea of granting maintenance is to see that the wife and children get a standard of living on par with the husband. Whether it is a full meal or half a meal, each one is entitled to a share. If a son reaches the age of eighteen, it does not mean that as from that date he has to starve. That is not the law. It only means that as from the age of eighteen the law takes note of the fact that he has capacity to earn. But if he still depends on his mother either for 1

2

Kathichal Puthyapurayil Pathumma vs. Thundakachi Abdulla, I (1985) DMC 231 Kerala. Chakor vs. Prerna, I (1985) DMC 249 Bombay.

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study or for shelter, that fact will have to be taken into account, when a mother (of wife) is given maintenance. He is not given any maintenance. But the one who looks after him gets it. 1 Another view is that a child is entitled to maintenance as long as it is minor. Exception has been carved out in Sub-section (3) which covers an unmarried daughter, but as far as a major son is concerned there is no exception. A major son will not come within the purview of Section 24 of the Act, to be entitled to maintenance from the father. 2 Under the new Code only minor children unable to maintain themselves would come under this section and in the case of major children only those who are suffering from some mental or physical defect or injury and are unable to maintain themselves are eligible to get the benefit under Section 125, Criminal Procedure Code. 3 As per Section 125 Criminal Procedure Code, it is clear that the maintenance can be awarded only to minor children under Section 125 Criminal Procedure Code, whether married or not, when they are not able to maintain themselves. Only in special circumstances the maintenance can be awarded even after attaining the majority where such child is, by reason of any physical or mental abnormality or injury unable to maintain herself.4

Masculine includes feminine The definition of “person” is distinguished from “man” and “women” “Person” may include a natural person, may be “male or “female”, it will also include a juristic person as given in the General Clauses Act. But where Legislature specifically intends to refer to male human being, it may use as “man” or “women”. Taking into view these definition and explanation in the I.P.C as well as the General Clauses Act for the purpose of Section 125 when Section 125 uses the word “person”, it has to be taken to include both “male” and “female”. It means that if any “male” or “female” having sufficient means neglects or refuses to accept “his” or “her” liability to maintain then if other conditions of either Clauses (a), (b) or (c) of Section 125 are shown to exist, liability may be fastened to maintain. 5 As regards child, legitimate or illegitimate child, male or female, unable to maintain itself has got the right to be maintained by his parents 1

2 3 4 5

Gitanjali Gajanan Tendulkar vs. Gajanan Dinkar Tendulkar, I (1990) DMC 59 Bombay. Avnish Pawar vs. Sunita Pawar, II (2000) DMC 283 MP. Ashan Ali vs. Musstt. Junagar Begum, I (2000) DMC 680 Gauhati. K. Sivaram vs. K. Mangalamba, II (1989) DMC 452 AP. S.K. Chandrika vs. Byamma, I (2000) DMC 185 Karnataka

Persons entitled to maintenance—Masculine includes feminine

227

male and female, and expression “his” has to be read as “her” also. In the same way, under Clauses (c) expression used in legitimate or illegitimate child, exception has no doubt been made to it clearly, by expression not being a married daughter which is clearly indicative of the fact that the person who has sufficient means if he has got legitimate or illegitimate child, male or female, who has attend majority, who has physical or mental abnormality and is unable to maintain himself or herself, liability is of the person concerned to maintain with exception to the case of a married daughter who has attained majority. But, in case of minor children, no exception has been provided. In view of Section 8, when “he” or “his” is used, it has to be read including in itself “she” or “her”. If we look to Sub-section (3) as well, the Legislature has used the word, “if any person so ordered” means where a person having sufficient means be a father or mother neglects to maintain his or her children, legitimate or illegitimate, minor or major, with exception to Clauses (c) and he has been ordered to maintain them without any sufficient cause, fails to comply with the order, the Magistrate has been given power to issue warrant. When Legislature has not used the expression of “man” but used “person”, it includes “male” or “female” and it cannot be read to be referring to “man” only. The provisions of Section 125 are social welfare legislation. The object of such a provision has been considered to be that such persons who are not able to maintain themselves, they should not be left to the agony of starvation, frustration or of destitution and in case of female destitution, which may lead to prostitution. To avoid such a situation, the Legislature has enacted this provision. A social welfare legislation has to be interpreted keeping in view the object of the provision. If a female person is earning and she has got minor children to maintain and she refuses to maintain the minor children, be it be male or female then definitely she is liable to maintain them as the Legislature has not used the expression “man” or “woman”, but “person”, it has to be taken that person includes both male or female, “his” may also be interpreted as “her” in view of the above provisions of the General Clauses Act as well as provision of he I.P.C referred to above. In subsection, the legislature has used the expression “any person”. So a petition for maintenance under Section 125 is maintainable against again the mother irrespective of the fact that mother belongs to feminine gender. Here “person” includes both “male” and “female” and “his” is to be read as “her” also. 1

1

S.K. Chandrika vs. Byamma, I (2000) DMC 185 Karnataka; → → →See also Repalli Masthanamma v. Thota Sriramuu., 1982 Madras LJR (Cri) 313 (AP)

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Minor children The obligation of father or mother of unmarried daughter or minor son to maintain them is not joint but several. If they are not maintained adequately by either of them, they can certainly make good the deficit by seeking maintenance from the other. The question of double maintenance does not arise in such a situation. Further if the minors sue either of the parents for maintenance it is open to either of them to contend that they cannot sue him or her seeking maintenance since they were maintained by the other till then. That is so because, the liability of each of the parents to maintain their unmarried daughters or minor sons is not joint but several. 1

Mother If the sons effect a partition between themselves, the mother is entitled at the time of partition to a share equal to the share of a son which she receives in lieu of maintenance. The joint family in the instant case has been severed by the filing of the suit. The applicant is entitled to her share in lieu of the maintenance which she is otherwise entitled to. 2 Right of maintenance against the property does not entitle a share to the wife/mother in the joint family property in lieu of maintenance. The fact that she had, as on 15.2.1970, a right to maintenance against this property which later crystallised into the allotment of this property in her favour on 24.9.1970 is not sufficient. Neither under the customary Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions & Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held by her husband nor to a mother in the joint family property allotted to her son in a partition. 3 Bearing in mind the general social purpose of Section 125 Cr.P.C., it was reasonable to construe the different word used in it as per their natural meaning and there existed no justification for construing them in any special sense in which they were understood under any particular personal law. The natural meaning of the word ‘mother’ as contained in any standard dictionary was a female parent i.e. a woman who has given birth to a child. But, then, it was significant that the 1

2 3

Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka; relying upon Kaniki Subraya Gowda’s case 1964 Mysore LJ Supp 375 Parbati Devi (Mt.) vs. Bansi Dhar, AIR 1943 All 360. A.G. Vardarajulu vs. State of Tamil Nadu, 1998(4) SCC 231: AIR 1998 SC 1388: 1998 (2) Scale 441.

Persons entitled to maintenance—Non working husband

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words ‘father’ and ‘mother’ have been used in the same context in the particular part of the Section. In the case of the word ‘father’, there being nothing repugnant in the ‘subject’ or ‘context’, there was no reason to think that the word did not have the same meaning as it had as per its definition contained in Clauses (20) of Section 3 of the General Clauses Act. As per its definition in the said Clauses, ‘father in case of anyone whose personal law permits adoptions shall include an adoptive father’. It was true that there was no similar definition of the word ‘mother’ contained in the General Clauses Act. But, then, again, there was no reason to think that the word ‘mother’ as used in the particular part of the Section did not have as wide a meaning as the word ‘father’ used in the said part of the Section had. There was no reason to think that when an ‘adoptive father’ is entitled to claim maintenance from his ‘adoptive son’ under the provision an ‘adoptive mother’ should not be similarly entitled to do so. However, the case of a ‘step mother’ was altogether different. As already mentioned above, as per its natural meaning, the word ‘mother’ meant a female parent i.e. a woman who has given birth to a child. As per the said meaning it did not include a ‘step mother’. 1 Again, as in the particular context the word ‘mother’ received colour from the word ‘father’, its natural meaning got extended so as to include an adoptive mother’. But, then, there was nothing in the particular context which could provide a reason for extending the abovesaid extended meaning of the word ‘mother’ any further so as to include a ‘step mother’ also within its compass. 2 When Section 125, Cr.P.C. provided that a ‘mother’ unable to maintain herself was entitled to claim maintenance under the said section it meant that a ‘natural’ ‘mother’ i.e. the woman who had given birth to the child and an ‘adoptive mother’ i.e. the woman who had taken the child in adoption were alone entitled to make such a claim against the ‘natural son’ and the ‘adopted son’ respectively. A ‘step mother’ was not entitled to make any such claim against her ‘step son’ under the said Section. 3

Non working husband It is true that Section 24 of the Hindu Marriage Act, 1955 entitles either party to move an application for maintenance provided such party has no means of subsistence and the other party is in a position to provide maintenance. But it does not mean that the husband who is 1 2 3

Ramabai vs. Dinesh, 1976 Mah LJ 565 Rewalal vs. Kamla, II (1986) DMC 53 MP. Rewalal vs. Kamla ibid affirmed in Kirtikant D. Vadodaria vs. State of Gujarat, 1996 (4) SCC 479

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otherwise capable of earning his living should stop earning the living and start depending on earning of his wife. 1 In One case if was found that the husband had incapacitated himself by stopping the running the auto-rickshaw on hire. It was observed that it was a well-established maxim of Anglo-Saxon jurisprudence that no person can be allowed to incapacitate himself. The maxim is applicable to the case of earning husband. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse. 2

Parents of married daughter There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm. It is true that Clause (d) has used the expression “his father or mother” but the use of the word ‘his’ does not exclude the parents claiming maintenance from their daughter. Section 2(y), Cr.P.C. provides that words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 8 of the Indian Penal Code lays down that the pronoun ‘he’ and its derivatives are used for any person whether male or female. Thus, in view of Section 8, IPC read with Section 2(y), Cr.P.C. the pronoun ‘his’ in Clause (d) of Section 125(1), Cr.P.C. also indicates a female. Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Therefore, the pronoun ‘his’ as used in Clause (d) of Section 125(1), Cr.P.C. includes both a male and a female. In other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled. The father or mother, unable to maintain himself or herself, can claim maintenance from their son or daughter. The expression “his father or mother” is not confined only to the father or mother of the son but also to the father or mother of

1 2

Govind Singh vs. Vidya, II (2000) DMC 693 Rajasthan. Govind Singh vs. Vidya ibid

Persons entitled to maintenance—Right of Hindu widow

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the daughter. In other words, the expression “his father or mother” should also be construed as “her father or mother”. 1

Right of divorced wife Section 125 Criminal Procedure Code is a salutary provision intended to granting maintenance for wives, children and parents. For the purpose of the provisions of this Chapter, it is explained that ‘wife’ includes a woman who been divorced by or has obtained a divorce from, her husband and has not remarried. So under Section 125 Criminal Procedure Code a divorced wife also can maintain an application. Under Section 125(4) it is stated that “no wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, of if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent”. 2 Section 125(4) itself has no application to a woman who has already been divorced by her husband for the simple reason that a divorced woman can never be said to be committing adultery even if she has got promiscuous sexual relationship with other person. In Oxford English Dictionary the word ‘adultery’ is defined as “violation of the marriage bed. Voluntary sexual intercourse of a married person with one of opposite sex, whether unmarried or married to another”. Violation of marriage bed is not only the ordinary meaning of the word ‘adultery’ but it is also the legal meaning of that word. The cardinal points for consideration is whether woman has “defied her marriage” bed and if she is no longer a wife there cannot be any defilement or disowning of her marriage bed as she is a single woman then and has no marriage bed and married home. So, the term ‘wife’ used under Section 125(4) Criminal Procedure Code would only mean a woman whose marriage relationship is in existence. A divorced woman will not come within the amplitude of Section 125(4). 3

Right of Hindu widow The coparceners of her deceased husband who have taken his properties by survivorship, have no right to prescribe and arbitrary standard as regards the comforts the widow is entitled to have or the style in which she should live. It is not open to them to say that even though they are getting a large income from family properties, as they 1

2 3

Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987 CrLJ 977: AIR 1987 SC 1100: 1987 CAR 87: 1987 (2) SCC 278: 1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553. Alavi vs. Safia, II (1992) DMC 311 Kerala. Alavi vs. Safia, ibid.

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are living frugally widow also must be content with the barest necessities of life. The Shastraic Injunction that the widow’s life should be one austerity and semi starvation is not a legal injunction and ought not to be considered at all. 1 Hindu widow is not bound to reside with the same relatives of her husband, the relatives of her husband have no right to compel her to live with them and she does not forfeit her right to property or maintenance merely on account of her going and residing with the family or separately or leaving her husband’s residence from any other cause than unchaste and improper purposes. Unless there is waiver or abandonment of her right to maintenance by the widow she is entitled to maintenance from the death of her husband. As rule, widow cannot claim arrears of maintenance for the period her husband’s family unless she was kept under circumstances of extreme penury and oppression. However, she is entitled to arrears from the time, she change her residence, and under no circumstances can the right be post-dated from the institution of suit for maintenance. The amount of maintenance is liable to be increased with the increase in the value of the estate or the cost of living or decreased with the reduction in the value of the estate or its income due to cause beyond the holder’s control. 2

Right of husband The husband was mentally and physically well bodied person. He had a skill of a particular business. There was no handicap for him to earn bare minimum to support his livelihood. Merely because his business is closed, it cannot be held that the he has no source to earn. Since his wife was in the employment, the husband cannot make himself wholly dependent on her income through a device of Section 24 of the Hindu Marriage Act, 1955. In absence of any handicap or impediment to earn, to grant maintenance to such able bodied person equipped with skill would promote idleness. It is opposed to spirit of Section 24 of the Act. 3

Right of illegitimate son As per Mitakshara Law an illegitimate son is entitled to maintenance as long as he lives in recognition of the status as a member of family and by reason of his exclusion from inheritance among the 1 2 3

R.B. Gurubasvaiah vs. M.G. Preme, II (1992) DMC 191 Kar. R.B. Gurubasvaiah vs. M.G. Preme, ibid. Kanchan vs. Kamalendra, I (1992) DMC 619 Bombay.

Persons entitled to maintenance—Statutory right

233

regenerate classes. 1 But irrespective of validity of marriage an illegitimate minor child is entitled to maintenance. 2

Right of unmarried daughter Under the Hindu Adoption & Maintenance Act, 1956 it is the obligation of a parent to maintain his unmarried daughter if she is unable to maintain herself. Where the wife has no income of her own, it was the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Hindu Marriage Act, 1955 no doubt talks of maintenance of wife during the pendency of the proceedings but this section, it was held that, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. 3

Siblings The father or mother unable to maintain himself or herself can claim maintenance from the son or daughter, as the case may be. None of the Clauses (a) to (b) of Sub-section (1) relate to claim by a brother or a sister. Therefore, claim of maintenance by brothers and sister has no leg to stand. 4

Statutory right In order to constitute a joint family, it is not always necessary that there should be two male coparceners. Even prior to the Hindu Succession Act, 1956, in a joint family property a wife or other female members were entitled to maintenance under the Hindu Women’s Right to Property Act, 1937. This Act introduced an important change in law relating to the rights of women succession, which came into force from April 14, 1937. This Act gave at least a limited right to property to certain classes of the women members of the joint family. This limited

1

2

3

4

Mothey Anja Ratna Raja Kumar vs. Koney Narayana Rao, AIR 1953 SC 433: 1952 SCJ 507 Sumitra Devi v. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC 765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985 PatLJR 11: 1985(2) Rec Cr R 61. Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC 3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2) Orissa LR 379. Saudamini Tripathy vs. Pramila Dibya, II (1995) DMC 492 Orissa.

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right has been converted to a full right as per section 14 of the Hindu Succession Act. 1

Unborn child Application on behalf of an unborn child is not maintainable because no refusal or neglect on the part of father to maintain such child can be proved or proved or inferred. Moreover, due to natural or unforeseen circumstances, the birth of a child alive cannot be taken for granted. Thus, due to such like contingencies the filling of application on behalf of the child still in the womb of the mother would introduce vagueness in such like proceedings and such was not the intention of the legislature in enacting this provision providing for speedy maintenance allowance in order to save the wives, children or parents from becoming destitute. It was further held that no doubt, it will result in hardship to the minor child if the order of cancellation of his maintenance allowance is upheld, yet all the same there is no option but to do so because the application on his behalf was not maintainable till he was born, although the mother had claimed maintenance allowance on behalf of the unborn child in the original application. It was however held that the mother can file a fresh application on behalf of the minor child. 2

Unmarried daughter Under the Hindu Adoption & Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. In one case, the wife had no income of her own, it was held that it was the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Hindu Marriage Act, 1955 no doubt talks of maintenance of wife during the pendency of the proceedings but this section cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. 3

1

2 3

CIT vs. Arun Kumar Jhunjhunwalla and Sons, 1997(223) ITR 45 (Gau). Pushpinder Kaur vs. Balbir Singh, II (1992) DMC 483 P&H. Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC 3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2) Orissa LR 379.

Persons entitled to maintenance—Widowed daughter-in-law

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Widowed daughter Maintenance by a man of his dependants is, with the Hindus, a primary duty. They hold that he must be just, before he is generous, his charity beginning at home; and that even sacrifice is mockery, if to the injury of those whom he is bound to maintain. Nor of his duty in this respect are his children the only objects, co-extensive as it is with the family whatever be its composition, as consisting of other relations and connections, including (it may be) illegitimate offspring. It extends according to Manu and Yajnavalkya to the outcast, if not to the adulterous wife; not to mention such as are excluded from the inheritance, whether through their fault, or their misfortune; all being entitled to be maintained with food and raiment. 1 A destitute widowed daughter has a right of maintenance against her brothers after the death of her father when she could not get sufficient provision from her deceased husband’s family for her maintenance. The case law mostly relates to matters pertaining to the rights of the daughter-in-law against her father-in-law and his estate. The reason, still, for their reference is the unusual paucity of case-law governing the rights of daughter against her father, brothers, etc. for her maintenance. This scantiness of case law is more due to the devotional character and spiritual belief of the Hindu population and also due to the fact that the law-abiding nature of the Hindus have precluded brothers from disputing the right of maintenance of their widowed sister. More over, the analogy in the case-law with reference to the daughter-in-law can be and in fact has been also extended to the destitute widowed daughter. 2

Widowed daughter-in-law The widowed daughter-in-law can claim maintenance from her father-in-law only where she is unable to maintain herself out of her property or our of estate of her husband, father, mother, son or daughter. It is also provided that father-in-law shall be under no obligation to maintain his daughter-in-law except in cases where there is some ancestral or coparcenary property in his possession from which daughterin-law has not obtained any share. 3 In one case the father in law was in possession of co-parcenary property in which daughter-in-law not obtained any share. Proviso (a) to 1

2 3

Kota Varaprasada Rao vs. Kota China Venkaiah, AIR 1992 AP 1 (DB). Kota Varaprasada Rao vs. Kota China Venkaiah, ibid. Jit Singh vs. Gurmeet Kaur, II (1999) DMC 671 P&H.

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Section 19 of the Act came up for consideration before a Division Bench of the Court 1 and it was ruled therein that expression ‘obtain maintenance from her father or mother’ does not merely mean that the widow is somehow managing to live with or is being maintained by her father or mother. There must be a legal right in the widowed daughter to demand maintenance from her father or mother or from their estate, as the case may be, and she must in assertion of that right be able to obtain maintenance. It is only when she can obtain maintenance in pursuance of a lawful right that the operation of the proviso can be said to be attracted. 2

Wife The Hindu Law as well as the common law caste a duty on the husband to maintain the wife. In India, long before 1955, when the Hindu Marriage Act was brought into force, such a duty of the husband was given statutory recognition in the Indian Divorce Act, the Parsi Marriage and Divorce Act and the Special Marriage Act. 3 Section 18 of the Hindu Adoptions & Maintenance Act, 1956 puts an obligation on the husband to maintain the wife during her life-time. In a case as given out in Sub-section (2) of Section 18, the wife shall during her life-time. In a case as given out in Sub-section (2) of Section 18, the wife shall be entitled to live separately from her husband and can claim the maintenance. So the first and primary duty and obligation to maintain the wife is on husband. Section 20 of the Act carves out an exception and it will apply only in case where the husband is not alive or otherwise he is not capable of or not having the source of income to maintain his wife, then the obligation to maintain the mother may fall on the shoulder of the son. Section 20 of the Act makes a provision for maintenance of children and aged parents. In this case the Trial Court mechanically read this provision and was influenced by the fact that the mother is aged and the son who is earning member has an obligation or pious duty to maintain her. Subsection (3) of Section 20 of the Act, 1956 was not taken into consideration and looked into. Sub-section (3) of Section 20 of the Act, 1957 puts obligation on son to maintain his aged or infirm parents where the parents are unable to maintain himself or herself or have not their own source or properties. When it was not in dispute that the husband is 1 2

3

in Jai Kaur vs. Pala Singh, AIR 1961 Punjab 391 Jai Kaur vs. Pala Singh, AIR 1961 Punjab 391 as relied in Jit Singh vs. Gurmeet Kaur, II (1999) DMC 671 P&H. Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.

Persons entitled to maintenance—Wife

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able to maintain his wife, it was held that section 18 and 20 of the Act, 1956 are to be read together and if are read so, Section 20 will come into picture or can be put into service or applied only where the husband i.e., the father is unable to maintain his wife. Though these are socioeconomic provisions and same are to be read to extend the benefits to the beneficiaries as provided, but where the husband is an earning member having sufficient means to maintain his wife the liability to maintain the mother under Section 20 of the Act cannot be fasten on son. 1 The Hindu Law recognised that the right of maintenance is a substantive and continuing right and the quantum and maintenance is variable from time to time. 2 The amount of maintenance, whether it is fixed by a decree or agreement is liable to be increased or diminished whenever there is a change of circumstances as would justify a change in the rate…..It may be asked why it is that the rate of maintenance, though fixed by agreement may be varied by the Court in a suit brought for that purpose. The answer is that the right to maintenance does not rest on contract, but on the provisions of the Hindu Law which expressly govern the rights and duties of different members of the Hindu family. 3 In one case the suit was filed by wife during life-time of husband and not as his widow. Therefore it was held that on the death of the husband, her status as wife and right to receive maintenance could not be affected for the purposes of deciding this suit. 4 In a suit for maintenance the written statement was filed only by one of the defendants-respondents which was later on adopted by other defendants. In this written statement there was no pleading that they had no notice of the right of maintenance of the plaintiff. In the absence of such a pleading it was held that the Court below, on the basis of the evidence on record, rightly held that the defendants had notice of the right of the plaintiff to receive maintenance from her husband. In the facts and circumstances of the case, the transfer can only be treated as gratuitous when the evidence of passing consideration is not of any

1

2 3 4

Merubhai Mandanbhai odedara vs. Raniben Merubhai Odedara, I (2001) DMC 164 Gujarat. Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All. Mulla Hindu Law Thirteenth Edition Para 568. Hari Lal vs. Balvantia, AIR 1998 All 211: 1998 (2) CCC 277 All (DB).

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definite nature. Thus, the suit of the plaintiff was rightly been decreed for maintenance. 1

Wife from void marriage It is no doubt true that Maintenance Act is a piece of beneficial legislation conferring additional rights on women and children. But, it cannot be construed as conferring maintenance rights on a woman whose marriage is void under Hindu Marriage Act. While a legislative enactment may be liberally construed, the liberality cannot over-step the legislative limits of interpretation, putting to the legislation something which is not there. If it is felt that a particular enactment causes hardship or inconvenience, it is for the Legislature to redress it, but, it is not open to the Court to ignore the legislative injunction. By codifying the personal laws prevailing and application to Hindus, the Parliament intended to have monogamy among the Hindus and therefore, Hindu Marriage Act was passed to prevent Bigamous marriage and for that purpose, it is enacted that a Bigamous marriage is void and also constituted such a marriage as crime for which punishment has been provided. Therefore, it does not appear to be the intention of the Parliament that while such a Bigamous marriage is rendered void, the Bigamous relationship should be recognised for purpose of maintenance. 2 A Hindu is under an obligation to maintain his wife, his minor sons, unmarried daughters and aged parents. The obligation is personal. It arises from the very nature of the relationship and exists whether he possesses any property or not. The Maintenance Act gives statutory form to that obligation. The right of a Hindu wife for maintenance is an incident of the status of matrimony. Sub-section (1) of Section 18 of the Act substantially reiterates that right and lays down the general rule that a Hindu wife whether married either before or after the commencement of the Act is entitled to be maintained by her husband during her life-time. 3 The rule laid down in this section is subject to the exceptions stated in Sub-section (3) which lays down that she cannot claim separate residence and maintenance if she is unchaste or ceases to be Hindu by conversion to another religion. Under Sub-section (2) of Section 18, wife is entitled to live separately from her husband without forfeiting her claim for maintenance, in the circumstances stated in Clauses (a) to (g) 1 2

3

Hari Lal vs. Balvantia ibid Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266: 1999(1) HLR 68 AP. Abbayolla M. Subba Reddy vs. Padmamma, ibid.

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mentioned in that sub-section. Under Clause (d), wife is entitled for separate residence without forfeiting her claim for maintenance if her husband has any other wife living. The claim for maintenance is maintainable under this section irrespective of the fact that the marriage had taken place after or before the marriage of the applicant-wife, provided the other wife is living. The ground laid down in this section can, obviously, exist only in case of any marriage solemnised before the Hindu Marriage Act came into operation. It is obviously for the reason that the Hindu Marriage Act, 1955 laid down monogamy as a rule of law and Hindu husband cannot marry another wife after the commencement of that Act. A Bigamous marriage contracted after the coming into force of that Act, would be null and void and no question of having another wife can arise. Therefore, the word “Hindu wife” in Section 18(1) connotes only a legally wedded wife of a Hindu and such wife alone is entitled to claim maintenance from her husband under this section. If her marriage is void ab initio, she is not entitled to claim maintenance under this section. “Hindu wife” in this section only means a wife whose marriage is valid under the provisions of the Hindu Marriage Act, 1955. The wife whose marriage has been solemnised, but is void on the ground that the first wife of the husband is living at the time of marriage, is not entitled to claim maintenance under this provision. 1

1

Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP: 1999(1) HLR 68 AP.

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Chapter 7

Determination of income SYNOPSIS Introduction....................................240 Absence of evidence .......................241 Adverse inference ...........................241 Appreciation of evidence................242 Carry home salary .........................243 Considerations ...............................243 Cross Examination .........................245 Deductions from income ................245 Deduction for maintenance for parents .......................................................247 Determination of income................247 Determination of resources............248 Fixed assets ....................................248 Income of wife ................................248 Income from immovable property ..249 Income of second wife ....................249 Income tax return ...........................250 Joint family.....................................250 Labourer ........................................252 Medical Officer ..............................252

Necessity of evidence ..................... 252 Necessity of finding about income . 253 Necessity of income ....................... 253 Non working husband .................... 254 Ownership of land ......................... 254 Potential income ............................ 254 Power under Hindu Adoptions & Maintenance Act ............................ 255 Power under Section 151 Civil Procedure Code ............................. 257 Presumption of income .................. 258 Prima facie case ............................ 259 Proof of employment ..................... 259 Renunciation of world ................... 259 Step son.......................................... 260 Suppression of income ................... 261 Uncorroborated testimony of wife . 263 Unnatural conduct ......................... 263 Unskilled Labourer........................ 264 Vague denial .................................. 264

Introduction While claim of maintenance is based on requirement of claimant the quantum of maintenance depends upon various factors. The Income of the person being saddled with the liability of maintenance is the single most important factor because it is not the object of the law providing for maintenance to create new class of paupers while taking care of the earlier. Therefore the amount of maintenance has to be fixed in proportion to the income. This chapter deals with the principles of determining the income.

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Absence of evidence In one case there was no evidence on record about the income of the husband. According to the wife, the husband was working as a mechanic, but no attempt had been made to lead any evidence about the earnings of the husband. It was held that even if it is assumed that the husband is working only as a labourer he would at least earn Rs. 12/- per day and taking 25 days in moths as working days, he would be able to earn near about Rs. 300/- per month. Under these circumstances, the quantum of maintenance awarded to the wife at the rate of Rs. 125/ p.m. was held to be a bit on higher side as if the husband has to pay Rs. 125/per month to the wife and Rs. 75 per month to the child only Rs. 100/would be left for himself. That definitely would not be sufficient to maintain himself. Under these circumstances, it was held to be proper to reduce the quantum of maintenance to Rs. 100/- per month. 1

Adverse inference In one case the husband examined himself as a witness before the Court below but did not depose a single word about his income. According Section 106 of the Indian Evidence Act the amount of income of the petitioner is a fact which is within his special knowledge and when he himself does not tell about his income, it means that he is hiding the truth. The wife stated in her examination-in-chief in that the income of the petitioner was Rs. 3,000/- per month. A suggestion was given to her in the cross-examination that the petitioner was getting only Rs. 1,500/per month as his salary. The husband was a railway employee and the best evidence could be the document from his department. It was held that he has withheld such a documentary evidence which he could have obtained from his department and produced before the Court. Therefore, his plea that he has getting a salary of Rs. 1,500/- per month was not accepted. Secondly, even if the income of Rs. 1,500/- is accepted, there is no evidence as to how many people he had to feed. The Court had granted a sum of Rs. 350/- to each of the children which was held to be not excessive. 2 In another case apart from the income of the disclosed house properties the admitted fact which also appeared from the evidence was that the husband built a residential house after the decision was given by the High Court in earlier appeal granting interim alimony to the wife. On behalf of husband, it was however contended that this house was not tenanted and is used for residential purpose and the husband acquired 1

2

Sairabanu Mudassar Sayyed vs. Mudassar Salar Sayyed, I (1991) DMC 342 Bom. Shamlal vs. Mansha Bai, 1999(1) HLR 571 Rajasthan.

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this properly after incurring loan of heavy amount from Life Insurance Corporation of India. In this background it was held as under: ‘Even if it is so, the appellant did not disclose this properly nor any papers or documents in support of the statement now made before us. The appellant has also not produced the income-tax return relating to his income from his properties and assets at the material time. It is, however, contended that income-tax papers are no longer confidential documents and the respondent could have caused those papers to be produced from the authorities concerned. We think, in the facts and circumstances revealed in this case, it is not for the respondent but for the appellant to produce the relevant paper including the income-tax assessment of relevant periods to show his income. The appellant has also failed to produce as noticed by the trial Court, his Bank accounts or books of accounts and other material documents relating to all his properties and income thereof. So, from the conduct of the appellant it would be perfectly legitimate to draw an adverse inference against him for his failure to produce the above papers from his custody.’ 1

Appreciation of evidence The affidavit of the wife stated that the income of the husband during the year was Rs. 30,000/- out of which Rs.15,000/- was his share of profits from the partnership business, while 15,000/- was the income from the other business. It has also been stated on behalf of the wife that there are houses and shops belonging to the husband, which were fetching rental income but no details in respect thereof have been supplied. In this case, however the court refused to rely on the statement of the wife instead relied upon the Income Tax returns by observing 2 as under: ‘The affidavit to the wife about the income of the husband being Rs. 30,000/- per year cannot be accepted in view of the fact that the husband has produced the income-tax authorities accepted the income of the husband from the partnerships business and from the other business as Rs. 9,134/- during the assessment year 1980-81. The husband filed an affidavit in the trial Court in which he has admitted that his income was Rs. 9,000/- to 10,000/per year. The income-tax assessment order relating to the assessment year 1980-81 has been produced, while we are concerned with the subsequent assessment year 1980-81. It may be considered that there might be slight increase in the income of 1 2

Jagdish vs. Manjula, AIR 1975 Calcutta 64 (DB). Bhanwar Lal vs. Kamla Devi, II (1983) DMC 144 Raj: AIR 1986 Raj 229: 1983 Raj LW 314: 1983 Rajasthan LR 640: 1983 ELN 322: 1983 Mah LR 268: 1983 (2) Civ LJ 220.

Determination of income—Considerations

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the husband during the next following year, but it cannot be presumed in the absence of any cogent material that there was a steep rise in the husband’s income in the next following year, after the year for which income tax assessment order has been produced. In the face of the affidavits of the parties and the income-tax assessment order produced by the husband it appears that the income of the husband could be fairly considered to be about Rs. 12,000/- per year. We have held in similar cases that 1/5 th of the income of the husband should be considered as reasonable for fixation of interim maintenance. As such the wife is entitled to get 1/5 th of the sum of Rs. 12,000/- i.e. Rs. 2400/per year by way of interim maintenance. Thus, the interim maintenance which the wife is entitled to get in the present case, is determined as Rs. 200/- per month.’

Carry home salary For determination of the amount of maintenance it should be determined what is the carry home salary of the person concerned so that a reasonable amount for payment may be determined. At the time of determining the carry home salary the amounts of deduction or expenses incurred by the opposite spouse which are optional may also be taken into consideration. Further it must also be seem whether the optional expenses or deductions were made as a result of the litigation between the parties with a view to deprive the applicant under Section 24 of the Act. The bona fides of the parties are taken into consideration. There cannot be any hard and fast rule that the Provident Fund and life insurance premium should not be taken into consideration while determining the disposable income. The contribution to Provident Fund may be optional or compulsory. Similarly if the amount of life insurance premium was being paid prior to the disputes between the parties, payment of premium should be taken into consideration and deducted from the gross income to determine the disposable income unless some male fides are alleged. 1

Considerations In the case of Chameli vs. Gajraj Bahadur, 2 the Court held that in fixing the maintenance under Section 488 the Court has to take into consideration not only the needs of the applicant but also the paying capacity and the circumstances of the person liable to pay maintenance.

1

2

Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982 Rajdhani LR 47. 1954 (55) CrLJ 19.

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In another case 1 It was observed.— “It was necessary for the learned Magistrate before determining what maintenance should be allowed to have determined the actual means of the husband of Parwatibai an allocate proper part of it for maintenance. It is true that a person taking on the responsibility of marriage has to maintain his wife and mere minority or the fact that the husband does not work cannot come in the way of the maintenance of the wife, but it is in all cases necessary to ascertain the feasible means and the earning capacity of the husband if he is compelled to work.” In the case of Ashish v. D.C. Tewari, 2 it was held by Delhi High Court that in awarding maintenance under Section 488 Criminal Procedure Code all the circumstances of the case including the standard of the person liable to maintain should be taken into consideration. It is wrong to presume that unless the father can spare some money after maintenance himself, his old mother and the brother, he has legal obligation to maintain his own minor son, of course in accordance/with status and standard. In the case of Mohammad Ayyub v. Zaibul Nissa, 3 the Allahabad High Court held that the quantum of allowance directed to be paid by the husband to the wife has relevance to his means. Where the Magistrate does not give any thought to the question as to what are the means existing or potential of the husband justifying an order for payment of allowance to his wife, the order is liable to be set aside. Again in the case of Smt. Alimunissa vs. State of U.P., 4 the Court emphasised the status and income of the husband as the criteria for allowing maintenance to the wife. These cases show the principles that maintenance allowable to the wife must have relevance to the means of the husband; that under Section 125 Criminal Procedure Code the amount of maintenance allowable to the wife should not exceed Rs. 500/-; that the Magistrate must discuss the evidence and determine the means of the husband for fixing the amount of maintenance; means not only mean the tangible property or sources of income of the husband but also mean his capacity, potentiality and status. 5

1 2 3 4 5

Prabhulal vs. Parwatibai, 1952 (53) Cr LJ 868. 1970 Cr LJ 670 Del. 1974 Cr LJ 1237 All 1987(24) All Cr Cases 304. Chanderpal vs. Harpyari, II (1991) DMC 481 All.

Determination of income—Deductions from income

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Cross Examination For the grant of maintenance under Section 24 of the Hindu Marriage Act, 1955, apart from other thing, the income of the husband is one of the very material consideration. In one case, the wife had alleged that the husband was running his own business and was earning Rs. 40,000/- to Rs. 50,000/- per year whereas the husband had denied these facts and had alleged that he was only serving with a private firm earning Rs. 400/- p.m. Thus there was a big gap between the income of the husband alleged by the wife and stated by the husband alleged by the wife and stated by the husband and in the circumstances, in order to arrive at a correct decision about the income of the husband, the crossexamination of the husband on the affidavit filed by him, was held to be necessary. The learned District Judge had declined to do so on the ground that such a course should be discouraged in miscellaneous petition and that the prayer for cross examination was not bonafide but High Court did not find force in either of these two grounds. It was held that when there was such a divergence, there was no ground for refusing cross examination on the affidavit merely on the ground that such a course should be discouraged. On the other hand, this court has been allowing the cross examination of affidavits in proceeding under Section 24 of the Act as would be clear from Bhanwarlal vs. Smt. Kamal Devi. 1 The other ground that the application was not bonafide was also held to be not acceptable because it did not appear that as a matter of fact, that the wife was trying to prolong the proceedings. What she was trying to do was to arrange for the expenses which were payable to her under Section 24 of the Act in order to contest the application filed by the husband for divorce against her and if with that intention, she made applications from time to time, even before filing her reply, she cannot be held guilty of any malafides. 2

Deductions from income What has been taken in advance cannot be considered to be a liability. After giving proper deductions for the mandatory and necessary cuts in the salary it was held that the husband’s carry home salary would be around Rs. 10,200/- per month. Taking into consideration the carry home salary and the requirement of the wife who was living with her parents and brothers and also taking into consideration that she had nowhere stated that she would leave the custody and company of her

1 2

1981 R.L.W. 464. Shobha vs. Dharmi Chand, I (1986) DMC 369 Raj.

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parents and brother, it was held that if the maintenance amount is fixed at Rs. 2,500/- per month, the same would meet the ends of justice. 1 The husband had produced his salary certificate which showed that he was drawing of salary of Rs. 8,868/-, from which he was getting deductions to the extent of Rs. 6,107/- towards various saving and return of house building loan. The wife was also looking after a minor son and a minor daughter in additional to maintaining herself in the high prices. It was held that the husband could not take advantage of the heavy deduction from his salary as almost all these deductions were voluntary and were primarily on account of savings or house construction loan taken by the husband. 2 In another case the gross salary of the husband was Rs. 7228 and after deductions, the take-home salary was Rs. 4169. The relevant document also suggested that the deduction against advance was to the tune of Rs. 936 and odd while there was a further deduction to the extent of Rs. 2000/- towards ad hoc salary recovery. The circumstances under which this particular deduction of Rs. 2000 was made from the gross salary due for the month in question had not been explained by the husband. Going by the particulars appearing in the role, it seemed that this deduction of Rs. 2000/- was meant only for that month perhaps against some excess drawl of pay and allowance made earlier. The Trial Court, however, did not consider this respect of the matter and relied on the figure mentioned in the column meant for net amount as the real income of the husband in determining the quantum of enhancement. It was undisputed that the husband was also a licensed draughtsman holding some engineering degree or certificate. According to the wife, the husband’s income from the professional service that he renders towards his clients on account of this engineering degree or certificate is Rs. 7000 to 10,000. The husband, however, denied the fact that he had such income. According to the wife, the husband has another income by running tutorial home. However the husband was not required to maintain anybody else. Regard being had to the status of the wife and her needs as revealed from the materials on record and upon consideration of all the facts and circumstances which are relevant for the purpose of determining the income of the husband, especially the fact that there was a deduction of Rs. 2000 from the gross salary of the husband for the particular month was towards the ad hoc salary recovery. 3 1 2 3

Sanjay Kumar Jain vs. Maya Jain, II (2000) DMC 768 MP. Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H. Dibyendy Mukherjee vs. Sudipta Mukherjee, 1999(1) HLR 216 Calcutta.

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It has been held that when there was no evidence to the effect that opponent-husband was contributing anything towards provident fund, even assuming for a moment that the husband was contributing an amount of Rs. 80/- per month towards provided fund, then also this amount cannot be deducted. 1

Deduction for maintenance for parents Whether any maintenance is paid or not to the parents is immaterial, but husband as a son is under an obligation to maintain them if they are unable to maintain themselves. Considering the facts of the case it was held that the trial court rightly determined the monthly maintenance of Rs. 450 out of the disposable income of Rs. 1,537 of the husband. 2

Determination of income The husband was healthy person of 26 years of age, therefore, a young and healthy person, who claimed in his statement that he was earning with his parents in the field and was also tending the animals. It clearly shows, that he had joint earning with his parents. He was putting in his labour. In that sense, the wife has right to claim maintenance from those earnings. What would be the extent of those earnings should have been decided by trial Magistrate or at least by the Session Court. Some fair estimate on day to day expenses of life, could be made. The Session Court dealt with the matter in a non-serious manner by merely referring to the fact that no specific amount of earning has been stated. The legal position has to be that, a person who is capable of earning has to earn for his dependents i.e. for his wife and child. The evidence of the wife and her witnesses was that the husband works on land and tends milk animal with his parents. This was admitted by the husband also. It was held that ‘the Trial Magistrate should have assessed, what would be considered as fair earning out of labour put in by this respondent. In such type of case, a wife can hardly be expected to produce specific evidence of earning of husband not it can be said that the labour of the husband is producing no earning. In fact, an able person is expected to work for his wife. The respondent is, after all living, eating and clothing himself. … … … The matter is remanded back to the trial Magistrate to reach a conclusion of 1

2

Sakinabibi Gulabbhai Chauhan vs. Hasamkhan Rahimkhan, II (1985) DMC 489 Gujarat, See also Vinaben Jivanlal Suthar vs. Yaswant Kumar Pannalal Suthar, II (1983) DMC 234 Gujarat.; Saryuben vs. Bharat Kumar Mukundrai Vyas, II (1985) DMC 193 Gujarat. Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982 Rajdhani LR 47.

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the extent of the earnings of the husband, on the basis of the evidence existing on this record and then to fix maintenance payable to the petitioner-wife by the husband.’ 1

Determination of resources Where a man or a woman is on supplementary benefit, then it must be assumed that he is not working. That assumption cannot be made in realistic terms in modern conditions. There are many persons who can be shown to be working and earning money albeit they are on supplementary benefit, and it is for the justice to make inquiry to see whether that is the case or not. For those reasons, the appeal was allowed to this limited extent and the matter remitted to the justices for further inquiry in relation to the resources of husband. 2

Fixed assets In one case the husband is not in possession of any of the properties. No evidence whatsoever was adduced by the wife to show that the husband in fact got any income either from his brother or his other relatives who were in possession of those landed-properties. It was held that it will be unfair to assume that the husband must have been enjoying enough income from these landed properties, when the property did not stand in his name nor there was any evidence to show that any income was received by him from persons who were in possession of the property. There was no evidence to show that there is any litigation instituted against them by the husband to get income from the share of the property. It was necessary for the wife to adduce evidence in the first instance to show as to how much was the income that he was entitled to receive from the property and further that he was in fact receiving such income. There is a well recognized difference between the fact of receipt of income and the right to receive the same. Merely proving that a person has got the right to receive the income does not means that he is receipt of the same. 3

Income of wife Except making the allegations against the wife in regard to her income etc. the petitioner had not placed any document or affidavit of any other person to show that the wife was actually earning what had been averred against her. It was held that even if it was so, the obligation 1

2 3

Shyamkali d/o Vidyathi Ram vs. Bhaiyalal @ Ganesh s/o Yamuna Prasad, 1999(1) HLR 300 MP. Burridge vs. Burridge, (1983) II DMC (BJ) 42. Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC 26 Bombay.

Determination of income—Income of second wife

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of the petitioner-husband to maintain his minor children would always be there. It was further held that even for the sake of arguments it is assumed that wife has some source of income, that per say would not disentitle the wife from claiming maintenance for herself and more particularly for her children from the marriage. Meagre income of the wife cannot be treated as an absolute bar for claiming maintenance from her husband. 1

Income from immovable property The plea that the immovable property or the assets could not be taken into account is misconceived in as much as in one case, the said asset had been liquidated and the amount was available to the petitioner. It was held that the finding and observations of the learned Additional District that ‘having regard to the prevailing prices of property in Delhi, the actual value of the property could have been much higher as against the disclosed sale consideration of only Rs.1,90,000/-, for a DDA flat in Rohini, cannot be faulted with. It was further held that in any case, upon liquidation of the said asset, the sale proceeds of Rs.1,90,000/- or Rs.10 lacs as claimed by wife, were available and can safely be presumed to be yielding returns in the absence of anything to the contrary. The sale of the flat after receipt of notice of application for maintenance and alleged payment of the sale consideration to petitioner’s father can be viewed as a machination to avoid the liability for payment of maintenance. Considering the attendant circumstances, viz. petitioner staying with his parents in the same house, petitioner claiming to have paid Rs.1,75,000/to his father, the withdrawals from the firm for house expenses, it would appear that the income is being pooled in for the benefit of the family. The impugned order awarding Rs.1,500/- per month as maintenance in such circumstances cannot be said to be unreasonable or vitiated with material irregularity. 2

Income of second wife The one third approach is always taken on the husband’s or exhusband’s gross earnings, without having regard in the calculation to the new wife’s earnings, either gross or net. But of course of the new wife’s earnings can be taken into account to this extent that he has a person, a new wife, a woman, who is either keeping herself or contributing

1 2

Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H. Pominder Kumar Chhabra vs. Asha Devi, 1997 (6) AD 846 Del: 1997 (43) DRJ 790: 1998(1) CCC 3 : 1997 (70) DLT 764.

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towards her own keep. It is something to which one should have regard in the overall picture. 1

Income tax return Whether to accept or not to accept the income of a dependant as given in income tax assessment order, for purposes of determining the financial position of a dependant will also depend on facts and circumstances of each case. On this aspect also no broad proposition or hard and fast rule can be laid down. In one case income given in Incometax assessment order may be accepted and in another case, it may not be accepted. No rigid formula about what percentage of income should be fixed as maintenance can be laid down. In one case it may be 25% in another it may be 50% or even less or more. The quantum of maintenance depends upon the position and status of the parties including financial position of the defendant as also on the reasonable demands of the claimants or any other relevant factor. 2 In one case the court took into consideration the household expenses for some earlier months, the maintenance charges of the flat occupied by the wife and the tuition fees of the son. The learned Judge therefore come to the conclusion that the income-tax returns filed by the husband were not conclusive of the true income of the husband and his income has to be assessed in the light of the said other consideration as well. It was held that there was nothing wrong in this approach, and as is common knowledge, income-tax returns do not reflect the true position of the income of a party for several reasons, and cannot be taken as the sole guide for determining it in proceedings. 3

Joint family In one case the husband was working in a Primary School and was earning Rs. 400/- per month by way of salary. However, it appeared that his salary is not the only source of livelihood for the husband. It had come on record that there was a family business of printing press, which is run by the family. The husband failed to prove that he had separated from his family or there was any partition effected. He was the only son of his parents. Therefore, it was held that the income from the printing press will have to be taken into account, though the husband is on his 1 2

3

Campbell vs. Campbell, 1 (1977) All ER 1: (1982) 2 DMC (BJ) 31. Baby Rashmi Mehra vs. Sunil Mehra, AIR 1991 Del 44: 1989 (4) DL 65: 1990 (40) DLT 152: 1990 (1) DMC 94: 1989 (2) ILR (Del) 304: 1989 RLR 449. Vinod Dulerai Mehta vs. Kanak Vinod Mehta, AIR 1990 Bombay 120 (DB): (1989) 2 Bom CR 217: 1989 Mah LJ 600: 1989 Mah LR 1522.

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salary which he is getting from the Saraswati School. In fact, it has to be stated that the main income is from the printing press and the salary of Rs. 400/- per month, which the husband is getting, is an additional income. 1 The husband left the wife and went and stayed with the parents in the Tagore Garden House. He never cared for the wife and did not pay any maintenance to her. He withheld the FDR and the savings bank passbook and falsely alleged that she had the income of her own. He had not paid the maintenance amount as directed by the Court in spite of the fact that the Court had permitted him to make the payments in instalments. On his own he was contributing only Rs. 250/- as the mess charges to the joint family and was not paying anything for his accommodation. It was held that if the husband was claiming his joint family connection for showing that the business and the properties did not belong to him, he cannot deny that most of his expenses are borne by the joint family. His child was about four years old. The child also required to join some school. His school expenses, expenses on clothing, medicine, toys, etc. for the children of this age are very large. It was held that the rising prices and the high cost of maintenance would show that a sum of Rs. 750/- is not even sufficient for bare maintenance and the wife and the child are entitled to live according to the status of the husband. It was further observed that ‘considering the past experience the respondenthusband is warned that if the amount of maintenance of Rs. 1,500/- per month is not paid punctually before 10 th day of each month, the Court will be constrained to take strong action for compliance of its order.’ 2 It can not be laid down as a rule of law that if a person is working with his father, he has no income. In that context, it may be a relevant consideration that a person is an able bodied one and is capable of working even as an ordinary labourer or otherwise. It cannot be argued on behalf of the husband in such case that simply because he is working with his father, he has no independent income and it is itself sufficient to deprive his wife to claim maintenance under Section 24 of Hindu Marriage Act, 1955. It is all the more so in the case when the Court has

1

2

Prashant Mallikarjun Mendhapoorkar vs. Sou. Pragati Prahsant Mendhapoorkar, II (2000) DMC 696 Bombay. Renu Jain vs. Mahavir Prasad Jain, AIR 1987 Delhi 43: (1986) 2 Hindu LR 148: 1987 Marri LJ 34: (1987) 2 Cur LJ (Civ & Cri) 386: (1987) 92 Pun LR (D) 1.

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come to the conclusion that there is nothing on the file to hold that the husband has got no independent source of income. 1

Labourer The allegations made by the wife in her application under Section 24 of the Hindu Marriage Act, 1955 went unrebutted. Taking the facts stated in the application under Section 24 of the Hindu Marriage Act, 1955 to be correct, it was found that husband was a man of substantial means. Trial Court has erred in taking his monthly income to be Rs. 1,000 only. Statutorily minimum wages payable to a labourer in Punjab have been fixed at more than Rs. 800. under the circumstances, Trial Court erred in fixing the income of the husband-respondent at Rs. 1,000 per month. 2

Medical Officer Any medical practitioner around the age of 37 and actually having private practice, must be in receipt of income from that source also. That such income would be substantial, (even when he is on leave; during the leave period he can devote more time for private practice) is a fair inference in the circumstances. It may also be noted that even in the main petition, he had expressed his willingness to put the two children in a boarding house. This was also taken as indicative of the financial capacity of the husband even on his own showing. It was held that he cannot grudge a payment direct to the wife, when he was prepared to pay a boarding house, for their stay and other expenses. Regard being had to the fact that the husband was in the medical profession and was having private practice and was in receipt of income from immovable property, which thus remain uncontradicted, it will be safe and reasonable to come to the conclusion that he in receipt of a sufficiently high income. It was therefore held that the capacity of the husband to maintain the wife and children cannot be disputed. 3

Necessity of evidence Mere fact that the wife has not been able to lead any evidence with regard to the means of her husband, could furnish no justification for the Session court to remand the case. The Session Court ought to

1

2 3

Gurmail Singh vs. Bhuchari, AIR 1980 P&H 120 (DB): 1980 Rev LR 171: 1980 Marriage LJ 367: 1980 Cur LJ (Civil) 193. Surita Singh vs. Mahabir Singh, II (1991) DMC 409 P&H. Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983 Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.

Determination of income—Necessity of income

253

have decided the case on the basis of the evidence led and already on record. 1

Necessity of finding about income Where the family Court, having taken into consideration the facts and evidence, fixed the quantum of monthly maintenance after being satisfied about the source of income of the husband, it was held that the order of maintenance is not liable to be set aside only because of nonrecording a specific finding about the monthly annual income of the petitioner. However, it was observed that justice must only be done, but it should appear to have been done. In that sense it was observed that if the Trial Court would have recorded a specific finding regarding the quantum of income, then the impugned order of maintenance would have been a better speaking order, conveying the manner in which the Court has satisfied the sufficiency of means with the petitioner and the reason why the impugned quantum of maintenance was granted in favour of the opposite party members. But for want of this there is nothing to interfere with the impugned judgment by exercising revisional jurisdiction. 2

Necessity of income Under law, the burden initially lies in the first place upon the wife to show that the means of the husband are sufficient. But, if the initial onus is discharged, the husband is not relieved of the obligation to maintain his wife on the ground that the wife is having means to support herself by her own labour or that the wife is having able and willing relatives to maintain her. Merely because she refuses to earn does not mean that she is not entitled to maintenance. So far as the wife is concerned, her potential earning to capacity is not a relevant consideration. The word ‘means’ in the section does not signify only means such as real property or definite employment. It a man is healthy and able bodied, he must be considered to have the means to support his wife and he cannot be relieved of the obligation on the ground that he is unemployed. The words “sufficient means” includes the capacity to earn money and if a man is capable of earning money, he has to earn the means to maintain his wife, child or parents. The possession of property is not at all a criterion for awarding maintenance. It is independent of possession of property. It a person is capable of doing labour, the fact that he is not earning anything is not at all the criterion for not awarding maintenance. 3 1 2 3

Bharat vs. Suhana bai, I (1991) DMC 289 MP. Ramesh CH. Ojha vs. Rangalata Ojha, I (2000) DMC 588 Orissa. T. Buvaneshwari vs. V. Ramakrishnan, I (1989) DMC 269 Madras.

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Non working husband In one case the wife was not ready to live with her husband as he was not doing any service and was having no independent income. The court below held that the opposite party husband has no independent source of income and is still prosecuting his study and is dependent on his father. The High Court however observed that it is true that even the husband has no independent source of income or earning, but is capable of earning being an able-bodied person fit enough to work is liable to maintain his wife and cannot deny payment of maintenance pendente lite. It was also observed that the opposite party husband was prosecuting his study, the marriage was solemnized, but the petitioner refused to live in the matrimonial house on the ground that the opposite party husband is not doing any service. It is also evidence that the opposite party repeatedly requested the petitioner to live with him in his parents house, but she refused to do so. Ultimately, the opposite party instituted the suit for restitution of conjugal right and the suit was decreed, but even then the petitioner did not resume conjugal right. Therefore in these circumstances the order denying the maintenance, was affirmed. 1

Ownership of land A poultry farm was being run in the land of the husband himself and, therefore, he cannot simply withdraw from the partnership unless it was discontinued. Secondly the husband was owning land which would show that the husband was having sufficient income from other sources to be able to purchase the said land. The possible sources of other income were not at all consider or even touched in the judgment of the Session Court. The Sessions Court has simply considered the source of income from the salary which the husband was getting. In that view of it was held that the learned Additional Session Judge was justified in reducing the amount of maintenance granted by the Trial Court from Rs. 500/- to Rs. 400/- per month. 2

Potential income In Mohammed Ayub vs. Jaibul Nissa, 3 the learned Judge of the Allahabad High Court has observed as followed:— “It may be mentioned here that is assessing the means of a husband the court is not confined to taking into account his actual earning for the time being. There may be cases where an able 1 2

3

Sadhana Devi vs. Bijendra Kumar, 1998(4) CCC 319 (Patna). Drakshayanu Balkrishna Patil vs. Balrishna Virupakasha Patil, I (2001) DMC 430 Bombay. 1974 Crl LJ 1237.

Determination of income—Power under Hindu A & M Act

255

bodied and qualified person may not earn anything merely because he is either too lazy to put to use his resources or because he has indulgent relations to provide for his requirements. In such cases, the court must also take into account the potential earning capacity of the husband. In Kandasami Moopan vs. Anjammal, 1 Ramaswami, J., has observed as follows:— “So long as a man is able bodied and can work and can work and earn his livelihood, if it his duty to support his wife. Therefore, our courts have gone to the extent of laying down that notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu or a monk, he must support his wife so long as he is able bodied and can eke out his livelihood and support his wife. These observation made with reference to the wife would apply with greater force to minor children unable to maintain themselves. Husband cannot contend that he is unfit to take up any employment. His potential capacity to earn has to be taken as the basis. 2

Power under Hindu A & M Act Section 18 of Hindu Adoptions & Maintenance Act, does not authorize the award of interim maintenance pending decision on the claim to maintenance in contest in the suit. The right of the wife to be maintained by the husband should not be confused with the power of the court to award interim maintenance pending an action for maintenance where such right is in dispute. The court has no power unless statute expressly confers such a power on it. For example a power to award maintenance pendente lite is expressly conferred by Section 24 of the Hindu Marriage Act. The Hindu Adoptions & Maintenance Act does not contain a similar provision. 3 Thus there is no separate provision in the Hindu Adoptions and Maintenance Act, 1956, for grant of maintenance pendente lite. Section 18 of the Act only provides for maintenance to a Hindu wife, subject however to the two exceptions, carved out in sub-section (3) of section 18 of the Act, which extinguish the right of a Hindu wife to a separate residence and maintenance. That being the position in law, when it is imperative for the husband to maintain his wife, it does not stand to any reason that during 1 2 3

1960 MLJ Crl 839. Jagannathan vs. Sundari, II (1987) DMC 168 Madras. Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971) 2 Andh Pra LJ 330: (1972) 1 Andh WR 195.

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the pendency of the suit for grant of maintenance, which may take decades to attain finality, the wife in the first instance be forced to face starvation and then subsequently is granted maintenance from the date of the filing of the suit, if she is fortunate enough to survive till then. I feel that such a view will be against the very intent and spirit of section 18 of the Act. Even though there is no specific provision in the Act for grant of maintenance pendente lite, the Court is amply empowered to make such orders as may be necessary in the ends of justice. It is a trite proposition of law that a court empowered to grant a substantive relief is competent to award it on interim basis as well, even though there is no express provision in the Statute to grant it. Power to grant interim maintenance is incidental and ancillary to the substantive relief of maintenance envisaged in section 18 of the Act and if the ends of justice so warrant the court is competent to grant it in a suit for maintenance. 1 In the case of Rama Chandra Behera vs. Smt. Snehalata Dei, 2 a Bench of Orissa High Court held: “We agree that there may be cases where taking the extra ordinary aspects into consideration, the Court may proceed to exercise inherent powers to grant interim relief. It is not appropriate to set limitation on count’s inherent powers by interim relief. It is not appropriate to set limitations on court’s inherent power by indicating circumstances where it can be and where it cannot be exercised” The power to make an interim order for maintenance pending an application under Section 18 of the Act is implicit in the section. Such a relief must be held to be ancillary and the power would be necessary corollary to the power of the Court to entertain the application for substantive relief. There have been a series of decision of this Court taking the aforesaid view which was held to be in consonance with the spirit of the law.3 The absence of a specific provision in the Hindu Adoptions & Maintenance Act, 1956, is immaterial and that the civil Court has jurisdiction to grant interim maintenance. 4 However in a case involving Muslim Law it has been held that the nature of the suit for restitution of conjugal rights is different from 1

2 3

4

Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993 (3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR 69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR 577. AIR 1977 Orissa 96. Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114 Orissa. Deivasigamani Udayar vs. Rajarani Ammal, AIR 1973 Madras 369: (1973) 1 Mad LJ 383: 86 Mad LW 209.

Determination of income—Power under Section 151 Civil Procedure Code257

the suit for maintenance which a Mohammedan is entitled to file under the Mohammedan Law. There is also remedy to the wife to claim maintenance under Section 125 of the Code of Criminal Procedure which in fact the non-applicant/wife has resorted to. Therefore the Civil Court had no jurisdiction to grant any interim relief by way of maintenance pending the decision of the case. 1 In another case the petitioner had asked for permanent alimony under Section 37 of the Act and in case she succeeded in getting the order of judicial separation under Sections 22 and 23 of the Act in her favour and against the respondent, she would be entitled to the grant of permanent alimony. It was held that therefore, there should be left some security in the form of immoveable properties or otherwise which should be sufficient and adequate enough for the grant of permanent alimony under section 37 of the Act and that the house of husband can be adequate security for the payment of permanent alimony to the petitioner in case it is granted by the Court because every Court has inherent power to grant relief during the pendency of the proceedings if the interest of justice so requires. 2

Power under Section 151 Civil Procedure Code The inherent powers recognised by the Section 151 cannot extend to matters other than procedural. The Court cannot resort to the provisions of Section 151 to encroach upon substantive rights of parties or, in an Interlocutory Application, upon matters which await adjudication in the suit. No order under Section 151, Civil Procedure Code can be made except ‘in aid of the suit.’ Such an order may be a step towards obtaining a final adjudication in the suit or it may be with a view to ‘rendering the judgement effective, if obtained’ 3 The award of interim maintenance pending decision of suit in which the right to maintenance is in contest cannot certainly be called a procedural matter. An order awarding interim maintenance can neither be said to be a step towards final judgment nor intended to render such judgment effective. It can not be said to be “in aid of the suit” at all. Such an order cannot be made under Section 151, Civil Procedure Code. It can no more be made in exercise of the inherent powers under Section 151, Civil Procedure Code than a defendant can be directed to pay straightway to the plaintiff in a suit for money the amount admitted by 1 2

3

Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13. Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185 Del. Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971) 2 Andh Pra LJ 330: (1972) 1 Andh WR 195.

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him to be due to the plaintiff or which the Court may prima facie find the plaintiff to be entitled, or a defendant can be directed to deliver straightway to the plaintiff in a suit for possession of several properties, the items admitted by him to belong to the plaintiff or which the court may find him to be prima facie entitled. In cases where the defendant admits part of the claim of the claim of the plaintiff, the latter may ask the court to pronounce judgement and pass a decree to the extent of the admitted claim while postponing adjudication in regard to the rest of the claim. 1

Presumption of income A person having his own independent business, belonging to an affluent business family, which resides at a prima locality in Bombay, maintain a car and has other luxuries of life, can hardly be heard to say that he is in no position to meet the order of maintenance of Rs. 4,000/per month for his minor child and Rs. 2,000/- per month for his estranged spouse. If at all there was any truth in this contention, he should have availed of the opportunity given to him by producing his books of account, so that the veracity of this defence could have been tested. Therefore it was held that prima facie, at least at this juncture, financial stringency was a bogey being put forward only to bolster the contumacious conduct and stand adopted by the husband. 2 If a person is an able-bodied person capable of working, then, he is supposed to maintain his wife and to pay the maintenance as required under Section 24 of Hindu Marriage Act, 1955. It is for the purposes of fixing the amount under Section 24 that the applicant’s own income and that of the respondent is to be taken into consideration. In the absence of any income as such of either party, the husband being an able-bodied person and capable of maintaining his wife is liable to pay the interim maintenance under Section 24 of the Act. 3 When there is no evidence that the petitioner is not capable of earning more, if an able-bodied man capable of earning more without any lawful excuse does not earn enough as in expected of him, it is not a 1

2

3

Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971) 2 Andh Pra LJ 330: (1972) 1 Andh WR 195. Vinodchandra Gajanan Deokar vs. Anupama Vinodchandra, AIR 1993 Bombay 232: 1992 (3) Bom CR 129: 1993 (2) Civ LJ 608: 1993 (1) Cur CC 166: 1993 (1) Hindu LR 67. Urmila Devi vs. Hari Parkash Bansal, AIR 1988 P&H 84: (1987) 91 Pun LR 553: (1987) 6 Reports 217: (1987) 1 Hindu LR 458: (1987) 2 Cur LJ (C & Cri) 221: (1987) 2 Cur CC 803: ILR (1987) 2 P&H 495.

Determination of income—Renunciation of world

259

ground for reduction of the quantum of maintenance payable to the wife. However it was also observed that in these days, a sum of Rs. 75/- per month is grossly inadequate as a maintenance amount for any standard of living. 1

Prima facie case In one case the husband did not dispute that the opposite party was his wife. It was held that once this fact stands admitted, then under sub-section (1) of Section 18 of Hindu Adoptions & Maintenance Act, 1956, itself she became entitled to be maintained by her husband during her lifetime”. Sub-section (2) however gives further right to a wife to live separately from her husband without forfeiting her claim to maintenance on any of the grounds enumerated therein. One of them being where the husband keeps a concubine, as alleged by the plaintiffs in the present case. The scheme of Section 18, therefore, confers a general right on the wife to claim maintenance. This right continues and is enforceable even during the pendency of the suit as she has got to be maintained by the husband even during the pendency of the suit and in that view of the matter the court not only can pass an order for interim maintenance but, should pass such an order where the relationship of husband and wife between the parties is undisputed, as that by itself established a prima facie case for grant of interim maintenance. 2

Proof of employment The applicant, in one case, stated that her husband had previously taken training and that he was now working an Engineer and, hence, she was entitled to Rs. 500/- per month as maintenance allowance from her husband. It was held that it cannot be imagined that an Engineer would be without any employment and would even then going for the second marriage, if he was unemployed. It appears that the stand taken by husband that he was unemployed was only taken to avoid his liability to pay maintenance allowance to his first wife who was living with her father and brother. On taking a conspicuous view it was held that the order granting maintenance is not illegal. 3

Renunciation of world In one case the contention was that the husband had renounced the world and he become a Sadhu and therefore, he was not liable to pay 1 2

3

Lalit Amonatya vs. Dimabati Amonatya, I (1990) DMC 100 Orissa. Bailiram Ram vs. Radhika Devi, AIR 1980 Patna 67: 1979 BBCJ (HC) 510: 1979 BLJR 583: 1979 BLJ 546: 1980 Mat LR 161. Shiv Narain vs. Dasodiya, II (1994) DMC 554.

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any maintenance to his wife. The wife had stated that her husband sometimes puts on the traditional dress of Sadhus and sometime he is dressed in Dhoti-Kurta. In the same paragraph the wife had stated that her husband is having illicit relations with several woman and spends Rs. 1000/- on those women. She had also stated that in order to throw dust in the eyes of the police her husband puts on the robes of a ‘Babaji’. In these circumstances it was held that it cannot be said by any stretch of imagination that wife has admitted that her husband has renounced the world and has become a Sahdu. In this connection the attention of court was also invited to a police report on the back of the summon in which the learned Magistrate had recorded that the warrant of arrest for the recovery of the amount had been returned by the police unexecuted with a note that Hardev Singh has become a Saint and has transferred his entire property. It was held that, the report on the warrant was not sufficient to prove that Husband had become a Sadhu and further that even if it is assumed for the sake of argument that he had become a Sadhu that does not absolve him from the duty to maintain his wife and children. 1 Reliance was placed on a rather old case 2 that a man is not, and ought not to be, permitted by his own voluntary act to free himself from the elementary duty of maintaining his wife and children and he is amenable to the provisions of Section 488 of Criminal Procedure Code, notwithstanding the fact that he has adopted the yellow robe and had become a member of the ‘Sangha’.

Step son A step son is not bound to maintain his step mother, as long as he has not taken or asking for the share of her husband who is alive. It is also well settled that a son has to maintain his mother irrespective of the fact whether he inherits any property or not from his father, as he has, on the basis of relationship, the obligation to maintain his mother who has given life to him; where as the position of a step-son is altogether different. Equally so, there can be no dispute with the proposition that the obligation to maintain the Hindu widow depends on the taking of the deceased husband’s share in the family estate and to whomsoever her husband’s share is allotted, that person will have to maintain her. 3

1 2 3

Hardev Singh vs. State of U.P., II (1995) DMC 624 All. Maungtin v. Madmin, 34 Crl.LJ. 815, decided in 1942 Pokuru Rangaiah vs. Pokur Chinnaiah, AIR 1970 AP 33.

Determination of income—Suppression of income

261

Suppression of income Privy Council 1 has observed as hereunder: “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough: they have no responsibility for the conduct of the suit: but with regard to the parties to the suit it is, in their Lordship’s opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.” These observations were endorsed by the Privy Council again in Rameshwar Singh vs. Bajit Lal Pathak, 2 and have now been quoted with the approval by the Supreme Court in Hiralal vs. Badkulal, 3 and relied by Calcutta High Court in the following case: ‘Monthly income of a husband may not very often be within the knowledge of the wife, particularly in a case like this where the relation is considerably strained and the spouses are living a part for a considerably long period, the wife staying in India and the husband in the United Kingdom. In a case like this, the amount of the husband’s income would be within the special knowledge of the husband and when the issue before the Court is the amount of such income, the onus, under S. 106, Evidence Act, would be on the husband to disclose the same and if the fails to do so without any good reasons, the Court would be entitled to presume against him and to accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her. More so, where, as here, the husband does not even deny on oath the correctness of the amount alleged by the wife to be his income but only seeks to take shelter behind legal technicalities.’ 4 It is well known that in a case of this nature diverse claims are always made when one inflates the income and other suppresses. An element of conjectures and guess work has to be done by Court. The Court should keep in mind that an order under Section 24 of the Act does not become a windfall for one of the applicants and nor does it become a 1

2 3 4

in Murugesam Pillai vs. Gnana Sambandha Pandana, AIR 1917 PC 8. AIR 1929 PC 99. AIR 1953 SC 225 at p. 227. Chirta Sengupta vs. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98 (DB): (1987) 1 Cal HN 450: (1987) 2 DMC 163: 187 Mat LR 306: (1988) 92 Cal WN 54.

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harsh penalty for the other. A golden balance has to be struck while expressing discretion in the matter. 1 In one case the wife had stated the income of husband to be Rs. 10,000/- p.m. from the auto advisory service and Rs. 14,000/- per year as agricultural income. On behalf of respondent it was submitted that for this income of the respondent, the wife had not produced evidence. It was held that the husband was the person who was in possession of best evidence, but had not produced any evidence and felt contended and satisfied by stating that his earning from the work of auto advisor was only Rs. 2000/- p.m. So far as the agricultural income is concerned, he denied the same. So this was a case where there is word against word. But the husband who is the person in possession of best evidence of his income, has not produced the same. The income as given by the petitioner should have been taken as the income of the respondent. In a matter where wife is claiming maintenance, the husband makes all the efforts to see that she gets a meagre amount of maintenance by concealing true income. 2 Where the husband is a medical practitioner, the quantum of income in absence of any definite evidence, has to be determined by this Court on some guess work. A skilled labour even earns more than Rs. 1,500/- per month today. Therefore, it is not possible to believe that a doctor cannot earn an amount an amount more than a skilled labourer. Therefore the court would have no hesitation in drawing somewhat adverse inference against the husband for not disclosing the correct income and placing on record the relevant documents. Thus, it was concluded that the income of the husband is not less than Rs. 2,000/- per month even if he is practising in a remote place. 3 In another case it was held there was blissful non-disclosure of his true assets and his real income. In certain respects, there has been a modus operandi of Suppessin veri and Suggestio falsi and the approach generally is one of evasion and avoidance to place the truth before the Court. 4

1 2

3 4

Raghubir Yadav vs. Purnima Kharga (Yadav), II (2001) DMC 79 MP. Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya, AIR 2001 Gujarat 157. Sangeeta vs. Ved Parkash, I (2000) DMC 470 P&H. Gunvnati C. Patel vs. Meena G. Patel, I (1984) DMC 92 Bombay; see also Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984 Marriage LJ 316: AIR 1984 Delhi 320.

Determination of income—Unnatural conduct

263

Uncorroborated testimony of wife In one case it was observed that it is not understandable as to how a house-wife would prove that her husband was often going for Mujras, that he was travelling by Air, that he was drinking and serving costly liquor to his friends, that he was smoking 555 cigarettes, that he was throwing lavish parties, that he was visiting race-courses and was gambling with very heavy stakes. These are some of the activities of a husband which a wife would naturally know and if one gives evidence from her personal knowledge, why should the same be not relied upon. Why should there be insistence upon substantiating much evidence ? Why should her evidence be taken with a pinch of salt ? In Indian set up, a woman very much belongs to weaker section. She needs protection especially in a litigation like the present one. She has to fight a legal battle against a mighty husband. It is a fight between two unequals. She may not be able to substantiate many facts which she personally knows. In a given case, woman may be more than a match for a man but generally she is suffers, oppressed and suppressed. There is no necessity to suspect her veracity unless the Court is convinced that her evidence is false and there are reasons for her to harass her husband. Of course, there is no universal standard or yard stick to measure the truth-fullness of the evidence of a particular woman — witness in a matrimonial litigation like the present one as everything depends upon the facts and circumstances of each individual case but in the case in question it was categorically held that there was no evidence on record that the wife was interested in harassing her husband for any oblique purpose. 1

Unnatural conduct The husband, in one case contended that that he had been running a business in the name of Avinash Hana & Co. in parental premises A 731, Prem Nagar. Since he was suffering losses he sold it to his brother Subhash for Rs. 2000/- but the deed of transfer shows Rs. 5500/-. He joined the service with M/s. Naveen Industries, a firm owned by his brother Subhash at Rs. 300/- p.m. They both were living at A-732, Prem Nagar. But he deposed against his written statement that Brij Mohan Sethi was the sole proprietor of that firm Naveen Industries which manufactures cash boxes and safe. He produced Brij Mohan Sethi (RW7) who deposed that he was the owner of Naveen Industries and he had employed Avinash Handa (husband) on Rs. 300/- p.m. raised now to Rs. 350/- p.m. His job is to sell and purchase goods, but he does not say which goods. He is yet maintaining a telephone which he got in the 1

Vishnu Shankerdan Adnani vs. Nansiha Vishnu Adnani, II (1984) DMC 11 Bombay.

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Law of Maintenance

category of social workers. It was held that if he was believed then apparently he could not maintain a phone in his merger salary. It shows that he earns much more. He had a scooter which he sold to his brotherin-law for Rs. 5000/-. He had a refrigerator which he sold to his sister for Rs. 1500/-. It was held that all this evidence shows that he had sold out everything to show that he no more has any disposable income. He denied that he had a television set, tape-recorder, etc. The wife alleged that he had an insurance of Rs. 50,000/-. Which was not denied by the husband. The family had extensive properties at prime places. The wife alleged that her husband had a share in all of them, but the husband denied it all. The learned trial Judge doubted the husband and remarked that there was truth in the allegations of the wife. Considering all the evidence, he fixed the income of the husband at Rs. 2000/- p.m. Upon a survey of the evidence, one is struck with the amount of lies which the husband has spoken. In order to defeat the claim of the wife for maintenance of herself and the child, he has taken care to divest himself of all his possession in favour of his close relatives. His whole case stands demolished because he has recently contracted a second marriage which he would not have done if he were just earning what he says he does. All his evidence is phoney and the amount of income fixed by the Judge was held to be rather on the low side and extremely moderate. 1

Unskilled Labourer The wife had stated in the affidavit that the husband was engaged in the business of bardona and was earning therefrom Rs. 3,000/- per mensem. The husband had denied this fact and stated in his affidavit that he is a daily wage worker. It was held that even an unskilled labourer earns Rs. 50/- per day and the monthly income of the husband will not be less than Rs. 1,500/-. It was also not denied that he is not able-bodied person and could not work as an unskilled labourer. Under these circumstances, It was held that it will meet the ends of justice if the husband is directed to pay Rs. 750/- per month as maintenance pendente lite to the wife with Rs. 1,000/- as litigation expenses. 2

Vague denial In case of Gurvinder Singh vs. Harjit Kaur: 3, it was held as under:

1 2

3

Veena Handa vs. Avinash Handa, AIR 1984 Delhi 445. Seema W/o Devinder Vohra vs. Devinder Vohra s/o Late Dharam Chand Vohra, I (1992) DMC 264. (1998-2) 119 PLR 422.

Determination of income—Vague denial

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“…….It is expected from every litigant irrespective of the fact whether he is seeking relief from the Court no not that he would state true and correct facts. There is not fully only implied but specific obligation upon every party who approaches the Court to verify the fact true to the knowledge and belief of the party specially in the cases of present kind where the Court has to take prima facie view keeping in mind the urgency of the matter regarding grant or refusal of maintenance. Primarily the onus has to be discharge by respective parties in support of the averments made in the application or reply as the case may be. Concept of heavy burden of proof would be applicable during the trial where the parties have the liberty to lead oral and documentary evidence in support of their case. The Court would be well within its jurisdiction to draw adverse inference against a party who actually or attempt to withhold the best evidence and true facts from the Court with intention to frustrate the claim of others at this preliminary stage of proceedings………” In one case it was observed that the husband was definitely attempting to withhold correct facts from the Court. He cleverly stated the he was not the sole proprietor of the business or sole owner of the house. He also stated that he used to do cycle work but said nothing about the present. It was held that the vague averments in fact amounted to an implied admission on the part of the husband, who apparently had interest and rights in the properties mentioned but the nature of the interest may not have been definitely established on record. It was held that this clever attempt on the part of the husband was rightly frustrated by the learned Trial Court in coming to a reasonable conclusion that the income had to be taken at least at the rate of Rs. 3,500/- per month and may not be at Rs. 8,000/- per month, as averred by the wife. 1 It has been held that it is settled principle of regulating the construction of pleadings that every averment must be specifically admitted or denied and dealt with. The vague denial cannot come to the rescue of the non-applicant to avoid liability. Even if it is expected that the husband is a daily wager, still it cannot be believed that he earns only Rs. 30-40 per day. It was pointed out by the Counsel for the wife the husband is a Carpenter and was so working when they were living together. Even if it is assumed for the sake of consideration that the husband is a simply unskilled labourer even then in the present day of high prices, no skilled or unskilled labour is available to work at the amount quoted by the husband. This is matter of fact and common knowledge, of which the Court would not hesitate to take judicial notice of. In these proceedings stringent proof of income may not be insisted at this stage of proceedings. Prima facie view have to be taken 1

Ashok Kumar vs. Santosh Kumari, I (2000) DMC 129 P&H.

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by the Courts on the basis of the pleadings, facts, documents, if any, produced on record and the well enunciated principles of law governing the subject matter with some accepted canon of common behaviour and living conditions.1 Even if, the Court proceeds on the accepted premises that the wife with the help of her family is trying to make her both ends meet can no way be construed as disqualification of her right to seek relief of maintenance from her husband at best it would affect the quantum of maintenance and cannot be a bar specific or implied to the maintainability of such application. There are serious allegations made by the wife regard to the manner in which husband behave. She has pleaded danger to her life. In any case this is not the appropriate stage when the, Court should appreciate his contention in one way or the other as the main appeals itself is pending hearing. The husband owes a duty and responsibility to maintain his wife specially when she is in a destitute condition, obligation to maintain arises at the very outset. If the wife is staying with the husband, she is entitled to be maintained and looked after by her husband keeping in view the economic and the social status which the husband enjoys. These are the factors which are of great relevancy and carrying significant meaning in fixation of quantum of maintenance, even when the wife is living separately from the husband. The only exception to such claim would be where claim of maintenance is barred by law or the compelling facts and circumstances of a given case which justifies denial of maintenance. 2 A mere vague denial and vague allegations cannot ever make foundation for denial of claim of maintenance. The averment of the wife that the husband owns land cannot be brushed aside in the entirely. Some element of acceptance has to be attached to the same as the parties have lived together for a consideration time and normally they would be knowing the source of income of each other. The allegations of the husband that the wife is able to earn from the land owned by her family itself shows that she is entirely dependent upon her family and at their discretion. 3

1 2 3

Surjit Kumar vs. Amarjit Singh, 1999(1) CCC 642 P&H. Surjit Kumar vs. Amarjit Singh, ibid Surjit Kumar vs. Amarjit Singh, ibid.

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Chapter 8

Quantum of maintenance SYNOPSIS Introduction....................................267 Alternative sources of income ........267 Bare minimum requirements ..........268 Benefit of doubt ..............................268 Compromise ...................................268 Conduct & status of parties ...........269 Consideration for determining quantum .......................................................270 Date from which payment is to be made .......................................................279 Dependents.....................................279 Earning spouse...............................279 Enhancement ..................................279 Excessive amount ...........................280 Half share .....................................281 Income of claimant/wife .................282 Increase or decrease ......................283 Interference in Revision .................283 Irregular income ............................284 Joint family.....................................284 Judicial notice of inflation .............285

Lump sum payment ........................ 286 Maintenance of children ................ 286 Maintenance of parents ................. 288 Maximum amount .......................... 289 Minor children............................... 289 Nominal amount ............................ 290 Number of dependents ................... 290 One fifth of pay .............................. 290 One fourth of pay ........................... 292 One third of pay ............................. 292 One third or one fifth of income .... 295 Persons of royal descent................ 296 Precedents ..................................... 296 Principle for computation.............. 297 Proper proportion ......................... 298 Provisions for rent ......................... 298 Requirement of other relatives ...... 299 Right of minors .............................. 299 Standard of living .......................... 300 Status ............................................. 300 Working wife.................................. 300

Introduction The amount which is fixed for payment as maintenance is arrived at with reference to various considerations. One important consideration is of course, the income of the paying party. This factor has already been dealt with in the previous chapter. This chapter deals with other considerations which prevails upon the court while fixing the amount of maintenance.

Alternative sources of income Mere existence of Fixed Deposit Receipt or immovably property will not be sufficient to deny the claim of the spouse for maintenance pendente lite. It was not the intention of the Legislature that the

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applicant should be penniless person to ask for maintenance. What Section 24 of Hindu Marriage Act, 1955 requires is that there should be independent source of income. Therefore when the wife had filed an affidavit that she had spent the sum of Rs. 35,000 and the only other evidence of income which had been produced was a sum of Rs. 292 per months, interest on some amount which may also belying to her credit. It was held that it is only the interest which can be treated as source of income available to her month. 1

Bare minimum requirements It cannot be said that the Court has only to consider the bare minimum requirements of the wife and the children but they have to be put almost at the same position as they would have enjoyed had there been no separation between the spouses. It need hardly be said that the wife and the children have to be put on the same position as the petitioner/husband/father and the amount of maintenance to be awarded under Section 24 & 26 of the Act has to be in tune with their status and the mode of living to which they were used to before separation between the spouses and the wife and the children accorded the same standard of living which they enjoyed till the date of separation. 2

Benefit of doubt In one case the Court below accepted the income of the respondent to be Rs. 3,000/- to Rs. 5,000/- p.m. It was held that the benefit of doubt has to go in favour of the wife it was considered to be a fit case where the income of the husband has to be taken to be Rs. 5,000/- p.m. and out of this amount he had to part with a reasonable sum for his wife and child. Normal rule is to award 1/3 rd of this amount to the wife as interim maintenance per month. Similarly, a reasonable sum is also to be awarded to the child. In this case, it was considered to be appropriate and reasonable that the mother and child be given Rs. 3,000/- p.m. as interim maintenance, from the date of application 3

Compromise Where parties compromised on payment of lump-sum amount to wife for maintenance of child, the order was passed in terms of settlement.4 1 2

3

4

Gurveen Kuar vs. Ranjit Singh Sandhu, I (1992) DMC 49 P&H. K. Lalchandani vs. Meenu Lalchandani, 1998(1) CCC 383 (Delhi): 1997(68) DLT 712: 1997(6) AD(Delhi) 44: 1997(2) DMC 363. Kaliben Kalbhai Desai vs. Alabhai Karamshibhai Desai, I (2001) DMC 295 Gujarat. Boomi vs. Leela Rajan, 1977 CrLJ 342: 1977 AIR (SC) 700: 1977 (4) SCC 596 (3).

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Conduct & status of parties In each case, the conduct of the husband must be looked into. In one case he went abroad for the purpose of further studies leaving the wife and two minor daughters who were only a year and two old. There he sought divorce from the Supreme Court of Nova Scotia on a ground contrary to the provisions of the Act in this country and then got remarried. He had no consideration for the wife and two small daughter and never bothered to pay any maintenance to them. It was only when the wife wrote to the Court in Canada that maintenance of Rs. 1000/- was fixed. That too was not paid regularly and for years it was not paid at all. He did not tell this Court of his true income or the assets. He was living in the United States. The second respondent with whom he claimed to have married was also a doctor. It was held that it was a matter of common knowledge that doctors in United State are quite well and effluent people. During course of proceedings when the wife moved application for enhancement of interim maintenance he withdrew from the proceedings as otherwise he would have to tell the Court his true income and assets. This, it was concluded that he never wanted to tell. Calamity fell on the wife when one of her two daughters died in an accident. Her second daughter was of marriageable age. The wife had demanded permanent alimony and expenses of the marriage of her daughter at US dollars two lakhs. It was held that if one converts this amount into Indian rupees it would appear to be a large figure, but then considering the status of the husband his conduct it should not be too great a figure for him to pay and the wife is also entitled to live in comfort as does the husband. Considering all the relevant circumstances like the status of the parties, their financial condition, their means, their way of life, their future necessities, the claim of maintenance by the wife for herself and daughter at the rate of Rs. 10,000/- per month was held to be fully justified. 1 As regard the spreading of the amount as interim maintenance and alimony it was observed as under: ‘I will award this maintenance first as an interim maintenance under Section 24 of the Act as from the date of the application which is 1 November, 1986, and then convert the same into permanent alimony under Section 25 of the Act. This maintenance shall stand enhanced at the rate of 12% per annum taking into account the inflation element which is double figure these days. If, however, the first respondent pays US dollars 33,000 to the appellant in lump sum towards permanent alimony

1

Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996 Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR 102(N): 1995 MLR 385.

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her claim for increase in monthly maintenance will stand waived.’ 1

Consideration for determining quantum There are several factor which would influence the mind of the Court while fixing the quantum of maintenance under Section 125 of the Code. These considerations have been described 2 as under: (1) The earnings of the person bound to provide maintenance or his capacity to earn. (2) The status of the parties. (3) The basic requirement of the person entitled to maintenance. (4) The liabilities on the part of the person to provide maintenance. (5) Independent source of earning of the person entitled to maintenance and its quantum. (6) Inflationary trends prevalent in the market and the value of rupee. The aforesaid points are required to be considered seriously while fixing the quantum of maintenance. It is true that the amount of maintenance should not be luxurious so as to prompt the wife to remain away from the husband not it should be penurious so as to deprive the wife or children the basic necessities of life. The Court is obliged to address itself to all these important aspect while determining the quantum of maintenance. In the background of the parties and the objects for which provisions of Section 125 of the Code are incorporated. It may be noted that the provisions of Section 125 of the Code are benevolent provisions designed to prevent vagrancy and destitution. It is found from the evidence on record that the educational expenses for the minors per month came to almost to Rs. 40/- for each at the relevant time. Needless to repeat that minor son was studying in 6 th Standard and minor daughter was studying in 4 th Standard at the relevant time. Receipts for the educational expenses were also produced. Apart from the expenses pertaining to term fees, tuition fees, the expenses for uniform, books, for better private tuition, for transport charges for residence to school and back, etc., are also to be considered. The amount of Rs. 50/- to each child, practically, would be wiped out by the education expenses. What about the food, clothing, medical and other expenses of life which are basic necessities of life? Similarly, a rejected and dejected wife who is at the mercy of her brother staying at his residence, cannot get her two ends 1

2

Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996 Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR 102(N): 1996 AIR(Del) 54: 1995 MLR 385. in Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II (1991) DMC 485 Guj.

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meet within a paltry amount of Rs. 100/-. In fact she is entitled to reasonable expenses for residence, for her food, clothing and other such expenses of day-to-day life so as to prevent vagrancy and Section 125 of the Code is, in reality, intended for ensuring reasonably supply of food, clothing and shelter to such deserted wife and children. That is the reason why the Parliament in its wisdom incorporated these provisions in Section 125 of the Code so as to provide speedy and summary remedy against vagrancy and starvation for a deserted wife, child or indigent parents. These are the important questions to which the Court while dealing with an application for maintenance should invariably be looked into. Unfortunately, in the present case, the Courts below have failed to properly examine and appreciate the aforesaid points. The expression “means” in Section 125 of the Code does not signify only the visible income, such as, real property or regular source of income or a definite employment. A person who is able-bodied and who does not suffer from any physical or mental incapacity can be considered as a person who has the capacity to earn sufficient income because his physical and mental capacity provide him the capacity to earn. Therefore, even if a person who has no definite source of income or a regular source of income, he cannot escape his liability to pay maintenance. It cannot be contended, even for a moment, that the person who is not earning or who is not sufficiently earning, cannot be fasten with the liability for providing maintenance to his wife or children. He is liable to pay reasonable maintenance to the wife and children so as to see that they get their two ends meet. 1 A person, who has the capacity to earn, is liable under Section 125 of the Code, even if he is an insolvent, unemployed, a professional beggar, highly, a Sadhu or a Monk. It is for the husband to show that he has incurred capacity or he has no sufficient means and he has no capacity to earn. In a Division Bench decision of the Bombay High Court in the case of Muni Kantivijayaji vs. Emperor 2 it was held that a ground by merely becoming a Sadhu (Jain Sadhu) is not an excuse for not maintaining his wife. It was further held in the said case that it is for the husband to show that is not an able bodied minor that he has incurred incapacity to earn. Therefore, the rightful claim for maintenance cannot be refused on the ground that the person who is liable for payment of maintenance is not earning. What is required to be considered is the 1

2

Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II (1991) DMC 485 Guj. AIR 1932 Bombay 285.

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capacity to earn. The quantum of maintenance is required to be fixed in the light of the aforesaid all relevant facts and circumstances. 1 Where it is a stage of grant of interim maintenance, a reasonable sum to be awarded towards interim maintenance pending the final decision of the suit for maintenance. It was held that the learned trial Court has not considered that Rs. 300/- p.m. is hardly sufficient in these days of high price of essential commodities to meet out even one time meal expenses. Food, clothes and house are the three basic needs of a man/woman. While arriving at a reasonable figure of interim maintenance, the Court should have taken care of all these requirements. In addition to this, medical expenses may also be necessary. The amount of Rs. 300/- p.m. is not even sufficient to make it easy for the lady, to have three times tea. Normal living cost in these days is very high. It was held that it is in the interest of justice and to provide a reasonable sum of interim maintenance and the husband directed to pay Rs. 2,000/- p.m. as interim maintenance. 2 In another case the carry home salary of the husband was Rs. 1,300/- and he had to support aged parents. It was held that it is on a consideration of the totality of facts and circumstances of each case that a fair and reasonable amount of maintenance has to be fixed. By initial order, the learned Magistrate fixed Rs. 300/- per mensem for the wife and yet at the time of final determination the amount was hiked to Rs. 400/- without there being any additional material on record such as that in the interregnum period the salary of the husband had increased. This was held to be arbitrary as there was hardly any justification for increasing the amount. It was clarified that technically, no doubt, interim maintenance in the nature of things was only tentative, but a perusal of the order recorded in this behalf by the learned Magistrate shows that the he had taken into consideration the relevant facts and material on the file at the time of fixing the interim maintenance. Therefore keeping in view the carry home salary and the liability of the husband, an allowance of Rs. 200/- per mensem for the minor in addition to the allowance fixed for the wife was held to be on the higher side. The maintenance allowance for the wife is fixed at the rate of Rs. 300/- per mensem and that for the child at the rate of Rs. 100/- per mensem. 3

1

2

3

Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II (1991) DMC 485 Guj. Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya, AIR 2001 Gujarat 157. Ramesh Kumar vs. Shushma Ram, I (1992) DMC 200 P&H.

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The amount of which a widow is entitled to recover for maintenance includes not only that which is sufficient for her food, clothing and residence but also an amount necessary for the comfort and maintenance of her position as her husband surviving half. In fixing rate of maintenance to be paid to a widow in joint family the income of the family at the time institution of the suit and not on the date of husband’s death is to taken into consideration as the date. Maintenance awardable to a Hindu widow depends upon gathering together of all the facts of the situation, the amount of free estate, the past life of married parties and families, a survey of the condition and necessities and rights of member on a reasonable view of change of circumstances, possibly required in the future regard being had to the scale and mode of living and to age, habit, wants and class of life of the parties. It is out of great category of circumstances, small in themselves that a safe and reasonable induction is to be made by a Court of law in arriving at any fixed sum. The test in determining the allowance is whether the scale is suited to her husbands position in life. 1 The sum awarded must enable the lady to live consistently with the position of a widow in something like the same degree of comfort and with the same reasonable luxury of the life as she had in her husband life time provided that sum awarded does not exceed the annual profits on the share to which the husband would have been entitled on portion of living. 2 While fixing the amount of maintenance it is necessary to take into consideration (1) status of the parties (2) wife who was then living with her husband and luxurious and necessary amenities provided to her during that period, (3) Necessities of life, though some of the items might be luxurious, but, now a days they have become necessities of life, and lastly, (4) her social status. On these considerations it was held that no doubt that the non-applicant enjoyed all these facilities when the relations between the parties were cordial. However, one cannot bank upon and insist that despite unfortunate separation she is entitled to take same such treatment which she enjoyed previously. At the same time one will have to give some latitude to the earning of the applicant and the contingent unforeseen expenses in his profession. Simply because the wife was moving in car before the proceedings that does not mean that the husband should provide car to her. In view of the changing circumstances, certainly the non-applicant will have to adjust herself to

1 2

R.B. Gurubasvaiah vs. M.G. Preme, II (1992) DMC 191 Kar. R.B. Gurubasvaiah vs. M.G. Preme, ibid.

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the situation and the amount that will be received by her under Section 24 of the Hindu Marriage Act. 1 Thereafter it was held that even after giving some latitude to the income of the applicant, certainly, the amount of Rs. 7,000/- per month claimed by the non-applicant is ordinarily heavy and even beyond her requirement. It cannot be forgotten that the applicant is to maintain himself, his residence, his clinic, pay for education of his two children. So called luxurious items as stated by the non-applicant cannot be treated so because even for the medical profession of the applicant these are the necessary amenities. There may be VCR, Television, cooking range at the residence, air-conditioner, cooler etc; some times in the past these items might have been treated as luxurious but in present days they have become necessities of life. 2 In another case it was held that the quantum of maintenance at the rate of Rs. 8000/- per month is certainly not on the high side. The instant proceedings are after all for interim maintenance pending the hearing and final disposal of the main matrimonial proceedings. The amount, to which the wife would be entitled pending the main proceedings, should be a fair and reasonable amount satisfactory enough to maintain herself as the wife of her husband and in a manner and style in consonance with their status. Interim maintenance proceedings cannot be equal with proceedings akin to partition and possession of a share in the family properties. All that the Court has to consider is what, in the facts and circumstances of each case, would be an amount fair and just which should be awarded by way of interim maintenance to the wife in consonance with the status of her matrimonial home and of course, in consonance with the life style of her own husband whose wife she continues to be. It was observed as under: ‘One is unhappy to see the extent to which the husband is wiling to go in order to avoid in a reasonable manner his liabilities to maintain his wife. One who has been continuously over the years exclusively enjoying large benefits of very valuable properties in Bombay and Ahmedabad as also the large benefits of a running cinema theatre and one who is a managing director of a private limited company in which he hold over 90% interest and one who has been paying as such as Rs. 2,40,000/- on salary, can as well afford to pay a fair, just and reasonable sum by way of maintenance to his own wife. It is also worth noting that for the last ten years the husband has been staying separately from his wife. All these long years, the husband has been staying 1 2

Narendra Vidyadhar Sardesai vs. Shaila, II (1992) DMC 598 Bom. Narendra Vidyadhar Sardesai vs. Shaila, ibid.

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separately from his wife. All these long years, the husband did not even bother to help her. And like every other estranged Hindu wife, the wife here also has somehow managed to live perhaps under heavy obligations of her relations. She even faithfully and devotedly looked after and brought up her son born of this matrimonial tie. It is only now when the husband has chosen to a drag his wife to a Court of law by way of the present matrimonial petition — which was literarily the last straw on the camel’s back — that she, perhaps unable to hear the sufferings any longer, has chosen to take out the present notice of motion for maintenance. Even in these proceedings, she has expressed her willingness to go back and stay with her husband if only he gives up, according to her, his adulterous life with one Rita, a former employee in an Attorney’s firms. An amount of Rs. 5000/- per month would be a fair, just and reasonable award in favour of the wife by way of maintenance. Indeed, the husband himself seems to suggest maintenance of Rs. 4500/- per month vide ground (aj) of the memorandum of appeal.’ 1 In another case a question was posed by the High Court in these words: ‘Having regard to the necessities of life given the walk of life of these people, with him working in an insurance office as a salaried employee, with the wife living at home with the onerous duty of bringing up these three young children, does the order produce a result in which the husband on the one hand in his home, the bed sitter, has a comparable standard of living to the wife and children in their home?’ Then the court went on to answer this question as under: ‘One starts from the position that on this sort of salary scale the family is going to have a significant drop in the standard of living as a result of divorce because the income, which is really only enough to keep the family comfortably in one house, has to be split up so that the family can live in two places. There is a difficulty in the presentation of the facts, that on the figures that we were given first it looked as if the wife had a surplus of income over expenditure of ₤ 6 a week or so, but when her affidavit was scrutinised it appears that the figure given as her expenditure does not, with any accuracy, disclose the breakdown of her overhead expenses on rates, water rates, telephone, ground rent, heating, lighting and a thing called ‘maintenance contract’. These were items that were covered by the original voluntary payment of ₤ 40 a month for those purposes, and there is not anything before us, nor have we received any information about 1

Gunvnati C. Patel vs. Meena G. Patel, I (1984) DMC 92 Bombay; Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984 Marriage LJ 316: AIR 1984 Delhi 320.

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the evidence below, sufficient to enable us to know what the real outgoings on those important expenses is and ought to be. For myself, I would say that the family cannot afford a telephone any longer, given the realities of their difficulties. Whether the can afford the amenity of very much gas central heating to be seen. I would approach those elements which are not precisely quantified by saying that, taking the factors of weekly expenditure which are disclosed in the wife’s affidavit, obviously some pounds a week must be added for those items that were not precisely quantified.’ 1 In another it was observed from the pleadings and the evidence adduced during trial it was patently clear that the respondent runs a business in plywood and furniture as a partner. Besides, the respondent’s parents have two separate establishments in their respective names dealing with furniture’s. Record further showed that the family of the husband had a flat of their own. The husband, however, sought to assert that his monthly income was only Rs. 700/- to Rs. 800/- per month but it was observed that he was not detailing the correct facts about his income and even though he had in his written statement carved leave to refer to and rely upon the profit and loss account of his business, the same was not produced before the Court. In these circumstances it was held as under: ‘Considering the nature of the business the petitioner has had been carrying on, we find no hesitation in concluding that the income, as stated by the petitioner, is absolutely incorrect and he earns a much larger income than what he was claimed. Admittedly, the appellant who lives in Bombay has no independent source of income. It would, therefore, be difficult, if not impossible, for her to make both ends meet with the meagre sum of Rs. 400/- per month. Considering this aspect of the matter and considering the income which the respondent is earning from his own business and that of his parents with whom he is living, we feel that he should pay a sum of Rs. 1,200/- per month to the appellant.’ 2 In another case husband was serving the Central Government in the pay scale of Rs. 2200-4000 since before 1986 and the learned Judges has also took into consideration that at the time of hearing the proceedings, he was getting 80 per cent dearness allowance in addition to the basic pay in that scale and consequently he has determined the monthly maintenance allowance. It was held that on an income of Rs. 4000/- per month, he could very well pay Rs. 500/- per month to his 1 2

Scott vs. Scott, (1978) 3 All ER 65 (CA): (1982) 2 DMC (BJ) 80. Pushpa Anil Sharma vs. Anil Shivmurthy Sharma, I (1994) DMC 583 Bombay.

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divorced wife until she remarries. Liberty was granted to the husband to approach the Family Court for modification or cancellation of the maintenance allowance in the event of the lady entering into remarriage. 1 In another case the gross salary of husband was Rs. 2,733/-. The net pay available to him was Rs. 2,163/-. Thereafter, he has made certain deductions and the take home pay is found to be Rs. 1,039/-. It was held that for computing income in such cases, the deductions made by the husband by way of contribution towards benevolent funds, contribution towards GPF, repayment of advance, etc. cannot be taken into consideration. Therefore, his gross salary can be taken into consideration as Rs. 2,733/. It also transpires from the pay slip produced on record that he is paying a rent of Rs. 45/- per month for the quarter he is occupying. Therefore it was held that even if the gross salary that was earned by the husband is taken into consideration, deduction of Rs. 1,200/- from that amount would leave behind an amount of Rs. 1,500/-. Therefore it was held that an amount of Rs. 500/-, by way of maintenance, would meet the ends of justice. 2 In another case the husband was getting Rs. 4,000/- per month as salary. The wife was also receiving a salary of Rs. 879/- per month, as a teacher. Considering the huge income which the husband is receiving and considering the paltry sum of the salary which the wife is receiving as a teacher, it was held just and proper that alimony pendente lite of Rs. 500/- per month, should be granted and she should also be granted the litigation expenses of Rs. 5,000/- considering the fact that the husband dragged her to Court not only in the matrimonial proceedings, but also in other proceedings. 3 In another case the husband was a Driver in the Roadways and his monthly income was Rs. 1500/- per month, according to the wife, while according to the husband it was only Rs. 1090.90 per month. That apart, there was also evidence that he also owned a Bus from which he had income of Rs. 2000/- per month. However, considering the income of Rs. 1090.90 per monthly only, the court below in view of the fact that the husband was neither maintaining his wife nor his two minor children awarded Rs. 300/- per month to the wife and Rs. 100/- each to the two

1 2

3

Ram Ashrey Prasad vs. Pawan, II (1995) DMC 121 All. Safiyaben Mohamed Sahid Ansari vs. State of Gujarat, II (2000) DMC 494 Gujarat. Joykutty Mathew vs. Valsamma Kuruvilla, I (1991) DMC 479 Ker.

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minor children, total Rs. 500/- which amount was held to be not erroneous or suffering from any illegality. 1 In one case evidence showed that the husband and his second wife were living in a large and sumptuously furnished house, and that in each of the last two years the husband had spent, from one spouse or another over ₤ 60,000 on himself, his second wife and her children. It was observed as under: ‘In order to enable the wife to enjoy during her lifetime the same sort of standard of living as MRs. L. enjoys now is likely to enjoy in the future, she should in addition to having transferred to her the husband’s half share in Pilgrim’s Wood, be awarded a lump sum of such an amount as will meet two requirements: firs, a sum sufficient to put Pilgrim’s Wood into proper condition, and to furnish its interior in a reasonably sumptuous way; and, secondly, a further sum sufficient, if she chooses to apply it in that way, to purchase for her an annuity of ₤ 30,000. As regards the first sum, I should regard ₤ 75,000 as a fair figure on the evidence available. As regard the second sum, actuarial tables indicate that the capital cost of providing an annuity of ₤ 30,000 after deduction of tax on the taxable part of the annual sum provided, is of the order of ₤ 310,000. On these figures it seems that the proper lumps sum to award is ₤ 385,000. neither of the constituent figures is exact, however, and in all the circumstances of the case, including, in particular, the indebtedness of the wife, and the fact that the sum is being paid by instalments, I think it would be fair to round off the figure at ₤ 400,00. I would not, however, regard that sum as including in it any amount in respect of the future maintenance of Simon, which should for the reasons which I gave earlier, be dealt with by an appropriate order for periodical payments payable directly to him.’2 In yet another case materials were brought to record to prove that husband was sufficient means. What is sufficient in a particular case would depend upon the social and economic status of persons. Petitioner ought to have brought to record materials to show how his other family members are maintained so that Court could have considered the equal scope for maintenance of wife. In absence of any material, finding of the trial Court that Rs. 200/- per month would be just allowance cannot be said to be unreasonable even keeping the minimum standard of 1985 in view. 3

1

2 3

Dinesh Kumar Singh Rathore vs. State of U.P., I (1991) DMC 638 All. Preston vs. Preston, (1982) LR Fam. 19 (CA): (1986) I DMC (BJ) 25. Neheru Bag vs. Tapaswini Bag, I (1992) DMC 197 Orissa.

Quantum of maintenance—Enhancement

279

Date from which payment is to be made There is no legal impediment in directing that maintenance should be paid, to be effective from the date of service of summons of the main petition for restitution of conjugal rights, on the wife. Accordingly it was held: ‘The petitioner was awarded future maintenance at the rate of Rs. 200/- per mensem as per orders of this Court dated 17-21984. She has claimed maintenance at the same rate for the entire period from the date of filing of the main petition 3-3-1980. As stated earlier, the quantum can be fixed only on the basis of the averments contained in the affidavits filed by the parties in his court. In all the circumstances of the case, and in the light of the fact brought out in the various affidavits filed by the parties. I am of opinion, that a sum of Rs. 100/- per mensem is a fair and reasonable amount to be awarded towards maintenance for the period, 13-3-1980 to 17-2-1984. Accordingly I fix a sum of Rs. 4,700/- towards maintenance for the said period plus a sum of Rs. 500/- towards expenses for contesting the proceedings in the court below, totalling to Rs. 5,200/-’ 1

Dependents In one case the wife has four grown up children who were receiving education and a sum of Rs. 1700/- which was being paid to the wife and her four children was held to be not sufficient. Therefore it was directed that the husband shall pay a total sum of Rs. 3,000/- per month as maintenance to the wife and her four children. 2

Earning spouse In one case the claimant’s mother was earning a monthly income of Rs. 8,000/- out of which Rs. 4,000/- was being paid as rent and considering the fact that the plaintiffs are two unmarried daughters who stay with their mother who had to incur expenses for their upkeep and education, it was held that the interest of justice would warrant that an interim maintenance of Rs. 1,500/- per month should be granted to each of the plaintiffs payable from the date of filing of application besides a sum of Rs. 5,000/- towards litigation expenses. 3

Enhancement A perusal of sub-section (1) of Section 127 of the Criminal Procedure Code, 1973 leaves no manner of doubt that on proof of a 1

2 3

Nalini vs. Velu, II (1984) DMC 434 Kerala: 1984 Ker LJ 438: 1984 Ker LT 790: AIR 1984 Ker 214. Sheela vs. Rajveer Singh, I (2000) DMC 733 (SC). Radhika vs. LT. Col. J.C. Dhir (Retd), II (2000) DMC 232 Delhi.

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Law of Maintenance

change in circumstances of any person receiving under Section 125 of the Code the monthly allowance or ordered under the same section to pay a monthly allowance to his wife the Magistrate may make such an alteration in the allowance as he deems fit. It is thus quite apparent that there would be no legal bar for alteration in the maintenance allowance already fixed in favour of the wife under Section 125 of the Code merely because the said order was passed on the basis of compromise between the parties. Nor it would be obligatory for the wife to first get the order under Section 125 of the Code set aside in her favour and then apply for alteration of the maintenance allowance under Section 127 of the Code. 1 The Hindu Law recognised that the right of maintenance was a substantive and continuing right and the quantum of maintenance was variable from time to time. Neither the provisions of Section 11 of the Code of Civil Procedure nor the principles of res judicata will bar a suit for maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree had been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final. 2

Excessive amount Maintenance allowance granted at the rate of Rs. 500/- per month cannot in anyway be said to be excessive. 3 Where income of husband was only Rs. 360/ p.m., grant of Rs. 200/- as maintenance was held to be excessive and amount was reduced to Rs.150/- p.m. 4 In another case the husband was a Medical Officer getting a salary @ Rs. 5000/- per mensem as determined by the Matrimonial Court. The maintenance pendente lite @ Rs. 1000/- fixed by the Matrimonial Court was held to be excessive. It was held that the Matrimonial Court did not take into consideration the fact that the progenies from the wedlock were being maintained by the husband. 5

Half share 1 2 3

4

5

Jaswant Singh vs. Ranjit Kaur, I (1991) DMC 528 P&H. Ram Shanker Rastogi vs. Vinay Rastogi, AIR 1991 All 255 (DB) Mahesh Babu Saxena vs. Additional Chief Judicial Magistrate, Bareily, I (1996) DMC 594 All. Ganeshbhai Keshavabhai vaghari vs. State of Gujarat, I (1986) DMC 20 Guj Ramesh Kumar Leekha vs. Raj Kumari, I (1992) DMC 311 P&H.

Quantum of maintenance—Half share

281

According to the Hindu Mythology, wife has been given the status of ‘Ardhangni (Half Part) and as such she shares sweet or sour equally alongwith her husband and therefore, so far as the income of the husband is concerned, she is also entitled to share equally. Thus, the wife is justified to have equal share in the income of her husband. 1 There is no hard and fast rule, and each case depends on its own facts, and the Court has been given wide discretion to fix the amount of maintenance, keeping in mind the provisions of Section 23(2) of the Act. If the income of the husband is on the higher side and if he has no obligation to maintain any other persons except himself, and if the wife is neglected, who has to maintain two children, the share from the income of the husband to which the wife should be entitled may be considered to the extent from one-third to one-half, depending upon the circumstances of the case and the need of the family. In the instant case, the net income of the husband is assessed at Rs. 2,000/- per month plus income from the joint family properties. The amount of Rs. 1,000/- per month claimed by the plaintiff-wife is less than one-eighth of the net income of the defendant-husband and, therefore, it is not necessary, in the instant case, to decide the percentage to which the plaintiff-wife will be entitled to. At least, she is entitled to Rs. 1,000/- as maintenance per month from the date of the suit till she alive, subject to her right to apply for enhancement of maintenance in accordance with the income of the defendant-husband under Section 25 of the Act. 2 In Radhikabai @ Ambika vs. Sadhuram Awatrai, 3 the Court held that after deducting amount for uncertainties the total income of the husband is to be divided equally amongst the dependents of the husband, if any, including himself and in this way the wife shall be entitled to have her proportionate share. In another case, the material on record did not show that there were dependents of the husband. Therefore, if an amount of Rs. 100/- is deducted out of the income Rs. 1500/-, for uncertainties, then the -wife was accordingly held entitled to receive maintenance at the rate of Rs. 700/- per month as alimony. 4

1 2

3 4

Pratima Singh vs. Abhimanyu Singh Parihar, I (1986) DMC 301 MP. Maganbhai Chhotubhai Patel vs. Maniben, AIR 1985 Gujarat 187: 1985 Guj LH 181: 1985 (1) 26 Guj LR 271. AIR 1970 MP 14. Pratima Singh vs. Abhimanyu Singh Parihar, ibid.

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Income of claimant/wife Very often financial support is given to the wife by her father. It has been held that the sum received by wife from her father is not her income but only a bounty which she may or may not get. 1 The mere fact that the language of Section 488(1) of the old Code does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife’s own separate income or means of support. There is a clear distinction between a wife’s locus standi to file a petition under Section 488 and her being entitled, on merits, to a particular amount of maintenance thereunder. 2 There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband, alone, and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in the language of the associate Section 489(1) of the old Code, that the financial resources of the wife are also a relevant consideration in making such a determination. Section 489(1) provides, inter alia, that “on proof of a change in the circumstances of any person receiving under Section 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit”. The “circumstances” contemplated by Section 489(1) must include financial circumstances and in that view, the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife. 3 Under the Hindu Adoption & Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. It has been held that where the wife has no income of her own, it is the obligation of the husband to maintain her and her two unmarried daughters one of whom is living with wife and one with him. Section 24 of the Hindu Marriage Act, 1955, no doubt talks of maintenance of wife during the pendency of the proceedings but this section cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her 1

2

3

Kulbhushan Kunwar Dr. vs. Raj Kumari, AIR 1971 SC 234: 1971 All LJ 1047: 1970(3) SCC 129: 1971(2) SCR 672. Bhagwan Dutt vs. Kamla Devi, 1975 CrLJ 40: AIR 1975 SC 83: 1975(2) SCC 386: 1975(2)SCR 483: 1975Mad LJ (Cr) 81. Bhagwan Dutt vs. Kamla Devi, ibid.

Quantum of maintenance—Interference in Revision

283

daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. 1

Increase or decrease No criteria has been laid down to be taken into account while considering the application under Section 127 of the Code and the ground on which reduction or enhancement of the amount may be made. A change in the circumstance of any person appears to be the sine qua non for vesting power in the Magistrate to deal with the matters regarding alteration of quantum of maintenance. In these circumstances it has been held reasonable to read Section 125 and 127 of the Code together since both the section deal with the same subject object matter and one is an off shoot from the other. This position becomes particularly clear since the Magistrate is vested with power both to enhance and reduce the quantum of maintenance as evident from the provisions of the Sub-section (1) of Section 127 of the Code. It is therefore necessary that in order to deal with the application filed under Section 127(1) for modification of the order of maintenance, the Magistrate should consider the matter in the light of the criteria which usually weigh with the Court in the proceeding under Section 125. 2 In the proceeding under Section 125, the Magistrate is to consider the reasonable requirement of the wife for her proper maintenance considering the standard of living which she was enjoying/would have enjoyed in the house of her husband, the reasonable amount required for her separate maintenance considering the prevailing cost of living, price of essential commodities, etc., and also the income of the husband and income, if any of the wife. Unless this position is accepted it will lead to a mechanical disposal of the application filed under Section 127 simply on the ground that there has been a change in the circumstance subsequent to passing of order under Section 125. 3

Interference in Revision In one case Rs. 1300/- per month as maintenance pendente lite as also litigation expenses of Rs. 2200/- was fixed by consent of both the parties. The wife then brought certain more facts to the notice of the learned ADJ like that he was actually drawing salary of Rs. 4300/- per 1

2

3

Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC 3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2) Orissa LR 379. Santilata Pradhan vs. Mrutunjaya Pradhan, I (1991) DMC 256 Orrisa. Santilata Pradhan vs. Mrutunjaya Pradhan, ibid.

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month and was also, getting bonus of Rs. 14000/- to Rs. 15000/- per year. In addition the husband was alleged to be recovering Rs. 1500/- per month as rent. The learned ADJ carefully considered these circumstances some of which were also admitted in the reply filed by the husband. He came to the conclusion that husband was actually receiving Rs. 14000/to Rs. 15000/- approximately per annum as bonus. Thus adding this income he came to the conclusion that the monthly income of the husband was round about Rs. 5000/- per month and, therefore, increased and maintenance allowance from Rs. 1300/- to Rs. 1600/- per month. It was held that there was no jurisdictional error in the conclusion arrived at by learned Additional District Judge. 1

Irregular income While considering the irregular nature of income it was observed as under: ‘The error committed by the Revisional Court is that although the husband was receiving Rs. 620.65 p. per month, his salary has been considered as Rs. 1,000/- per month. Secondly, the extra work which the husband undertakes on holiday cannot be said to be any fixed income. No fixed income is proved on record and therefore, the uncertainly of the income cannot be taken into consideration to enhance the quantum.’ 2

Joint family In one case husband was residing with his parents and his brother in a flat which was a luxurious one having air-conditioner. The husband was working as a Director of a firm and his family belongs to the business community and the income appeared to be quite substantial. It was held that even assuming that the net income of husband is about Rs. 2500/- per month, still there is nothing wrong if the learned Judge awarded Rs. 100/- to the wife and Rs. 500/- each to the two children. It was also held that the husband must thank himself for the situation as it is of his own making and should have exercised more restraint and should have also advised his parents to do so while dealing with his wife. 3 In another case the husband was in service in a private auto company and is drawing a salary of Rs. 500/- p.m. and was a member of the joint Hindu Family which was possessed of certain agricultural lands

1 2 3

Shashi Bawa vs. Rumneek Bala, I (1991) DMC 386 Delhi. Kanhaiya Lal vs. Sau. Suman, I (1989) DMC 157 Bombay. Suren Chndrakant Shah vs. Rita Suren Shah, II (1985) DMC 329 Bombay.

Quantum of maintenance—Judicial notice of inflation

285

giving two crops in a year. Under the circumstances, the amount of interim alimony to the extent of Rs. 75/- per month was held to be unreasonably low. Treating the total monthly income of the nonapplicant to be Rs. 750/- p.m., monthly interim alimony of Rs. 150/- was held to be reasonable and proper and the litigation expenses of Rs. 200/was held to be very meagre and therefore was enhanced to Rs. 350/-, in the peculiar facts and circumstances. 1 In one case the plaintiff/wife had given details of the properties and business activities of the defendant. She had also given the details of the business which was being run by the family. It was not disputed by the defendant that he was part and parcel of a joint family. It was also not disputed that he is married for the second time. Therefore, it was held that the contention that he had no independent income to provide for maintenance of the wife, cannot be accepted. It was also held that once the details of the properties and the business had been specifically mentioned in the petition, it was for the defendant to disclose the income. He had chosen not to give any details of the income. He merely stated that he is only helping in the business of his parents. When the plaintiff had made allegations that the parents of the defendant were constantly demanding dowry, it was stated by the Counsel for the defendant that the family is well off that therefore, there is no need to make any demands for dowry. Yet on the other hand in reply to the plea for maintenance it is stated by the defendant that he has no independent income. In this background it was held that the plaintiff had made out a prima facie case for interim maintenance. The defendant was directed to pay maintenance to the plaintiff in the sum of Rs. 2,500/- per month from the date of the application. 2

Judicial notice of inflation The Court can also take judicial notice of the cost of living and also the inflation. The maintenance can be fixed with reference to the cost of living as of today and future rise in the cost of living on approximate basis. It is not that the wife has to come to the Court again and again with increase in cost of living. The maintenance can be linked to the inflation. Of course, if there is some substantial change in application could be filed for modification of the maintenance awarded. 3 1 2

3

Bandna vs. Ramnaresh Shivhare, II (1994) DMC 161, MP. Tabassum Shaikh vs. Shaikh S.J. Shaikh, I (2000) DMC 95 Bombay. Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996 Marri LJ 423: 1995(3) AD (Delhi) 1: 1995(59) DLT 635: 1995 RLR 102(N): 54: 1995 MLR 385.

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Law of Maintenance

Judicial notice can be taken of rising prices with the result that the cost of bare existence is regularly rising, rather mercurially. 1 Having regard to the rising cost of living at the relevant point of time, which the Court can take judicial notice at least Rs. 250 to 300/per month if nor more, was held to be required for the maintenance of the children, the expression ‘maintenance’ being understood as defined in Section 3(b) of the Act. The question of adequacy is not to be tested by the fact that they were not subjected to abject starvation, but the same will have to be tested by the standard reflected in the definition of ‘maintenance’. 2

Lump sum payment The payment of maintenance to the wife by way of lump sum can, by no stretch of imagination, be stated to be contracting out of the legal obligation to maintain the wife. To put it otherwise such payment is sine qua non of taking cognizance of the legal obligation of the husband to maintain the wife. However such lump sum payment in a sum of Rs. 5000/- paid in the year 1967 can, by no stretch of imagination, be stated to be so merger or inadequate, so that it can be stated that by the investment of the said sum, the wife cannot meet out her requirements towards her maintenance. 3

Maintenance of children Under Section 3(b) of the Hindu Adoptions & Maintenance Act ‘maintenance’ includes— (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. 4 Reasonable expenses of and incidents to their marriage also would come under the definition of ‘maintenance’. Looked at from any point of view and from any angle, therefore, it is not at all possible to say that the plaintiff were adequately maintained. Even otherwise, as pointed out earlier, it is not open to the defendant to say that because they were maintained till the date of the suit by the mother they should be continued to be maintained by her only. Such cannot be the stand of

1 2 3 4

Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All. Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka. Palanimmal vs. K. Chinnusamy, II (1995) DMC 140 Madras. Gurupadayya vs. Ashalata, ibid.

Quantum of maintenance—Maintenance of children

287

the defendant because, as pointed our earlier, the liability of each of the parents is several. 1 The husband was a Medical Officer getting a salary @ Rs. 5000/per mensem as determined by the Matrimonial Court. The maintenance pendente lite @ Rs. 1000/- fixed by the Matrimonial Court was held to be excessive. It was held that the Matrimonial Court did not take into consideration the fact that the progenies from the wedlock were being maintained by the husband. It was not disputed that the progenies are being educated in Public School and the husband had to incur expenditure on the maintenance of the children. Under these circumstances, it was held that it will meet the ends of justice if the husbands is directed to pay the interim maintenance at the rate of Rs. 750/- per mensem till the final disposal of the petition under Section 25 of the Act. However the husband was permitted to deduct the maintenance allowance @ Rs. 400/- per mensem payable under the orders of the Judicial Magistrate under Section 125, Criminal Procedure Code. 2 In another case the Supreme Court directed the father who had married again, to deposit a sum of Rs. 30,000/- for each of the two daughters who were with their mother as the husband had married again and had paid only Rs. 50/- per month to each of the daughters which amount was also enhanced to Rs. 1000/- per month from the January of the year of the decision. 3 In yet another case while granting decree of divorce the father was directed to pay Rs. 4000/- for maintenance of the two daughters till they are married or are able to earn their livelihood.4 In this case the children were living with their mother who was also earning about Rs. 4000/- per month. 5 In yet another case the monthly maintenance granted to the son was Rs. 1000/- which was enhanced to Rs. 3000/- per month till he attains the age of 27 years. 6 In a rather latest case the Supreme Court has held that the liability to maintain the children, under section 26 of Hindu Adoptions & Maintenance Act, 1956, is mutual and both the parents should contribute towards their maintenance, and the amount of Rs. 3000/- fixed for

1 2 3 4 5 6

Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka. Ramesh Kumar Leekha vs. Raj Kumari, I (1992) DMC 311 P&H. S. Jayalakshmi vs. T. Prakash Rao, 1996 (8) SCC 501 Sneh Prabha vs. Ravinder Kumar, 1995 Supp (3) SCC 440 Sneh Prabha vs. Ravinder Kumar, ibid. Kirti Malhotra vs. M.K. Malhotra, 1995 Supp (3) SCC 522

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Law of Maintenance

maintenance was directed to be shared by both in a ratio of 2:1 as per their respective incomes. 1

Maintenance of parents In fixing maintenance but allowance the court has to Take into account not only the needs of the person who claims maintenance but also the capacity, status, commitments and the obligations of the person who is to pay it. It is to be recalled that the applicant has two infants who are to be looked after by him and this is the stage when he is to bring them up and also to give them proper education so that they grow in the manner in which every parent would like their children to grow. The court while dealing with such matters should not only take into account the respective needs and requirements of the parties but should also take into account the status, the capacity to pay, commitments and the obligations of the person held guilty of neglect. It would be unjust to grant maintenance in an arbitrary manner. In certain circumstances it might have the effect of virtually rendering the other side a destitute. In dealing with this aspect of the case the courts below have made an emotional approach and that is how the quantum of maintenance was fixed. 2 In this case while allowing this allowance the courts below had taken into consideration that the income of the husband is about Rs. 3,000/- per month. There was also a mention of the fact that the wife of the petitioner was also earning about Rs. 1,000/- per month. It is true that the income of the wife was not taken into consideration while fixing the quantum of maintenance but then it appears that this has affected the minds of both the courts below. The husband had submitted a chart of his latest income before High Court wherein he had pointed out to various deductions he has to make from his pay and had stated that after making the compulsory deduction he is only left with Rs. 1,300/-. He has placed his total income at Rs. 3,349/-. He has further stated therein that after paying Rs. 900/- to his parents he is left with only Rs. 400/- to maintain himself, his wife and two children. It was held that the only consideration in allowing the quantum of maintenance that seems to have weighed with the courts below was the income of the petitioner and they have not taken into consideration the compulsory deductions which the petitioner had to make from his income as an employee. Both the courts below have failed to take into consideration some both factors while fixing the quantum of allowance. It was also held that it had been totally 1 2

Padmaja Sharma vs. Ratan Lal Sharma, 2000 (4) SCC 266 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116 Delhi.

Quantum of maintenance—Minor children

289

forgotten that the respondents to whom the maintenance is being granted have to live together under one roof and one hearth because the idea is to provide for their maintenance and not to make provisions for saving. 1

Maximum amount In one case the applicant was an illiterate old woman without means. The husband was an employee of the vehicle factory, and according to his own admission, he was getting Rs. 3,500/- per month as salary. It was held that must have been before the revision of pay under the Fifth Pay Commission and he had no other liability as all his six children are major and married. Maintenance of Rs. 500/- per month to the wife was affirmed. 2

Minor children In ordinary circumstances, the expenses on a child which belongs to such a family whose parents are indisputably deriving more than Rs. 4000/- per month as income, should not be less than Rs. 1000/- per month in any case. When the learned Magistrate after taking notice of the factual position in this case has held that both the father and mother are equally liable to support and maintain the petitioner, then they should bear the expenses for the maintenance of the child in equal shares. Therefore it was directed that it will be in the interest of justice if the father is ordered to pay maintenance of Rs. 400/- per month. 3 The father has given evidence that his per day income was only Rs. 20/-. The learned Trial Judge, on scanning the evidence, came to the conclusion that even if the father was a driver of a taxi, his income per month would not be less than Rs. 1,000/- to Rs. 1,200/-. The conclusion drawn by the learned Trial Judge was held to be correct. But, it was pointed out that the Counsellor’s Report also shows that the father was working as a driver in a private sector and he was earning approximately Rs. 1350/- to Rs. 1400/- per month. That being the monthly income of the father, a maintenance at the rate of Rs. 200/- p.m. in favour of a minor child cannot be said to be excessive in any manner. 4 It is the bounden duty of the father to maintain his wife and minor children. When it was fully proved that he had neglected and refused to maintain them it was held that in these days, the amount of 1

2 3 4

Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116 Delhi. Prema Bai vs. Kanchhedilal, I (2000) DMC 183 MP. Kumari Salon vs. Surjit Kumar Ratti, I (1996) DMC 156 P&H. Wahid Rajjak Sawar vs. Shahanaz Wahid Sawar, II (1994) DMC 4 Bombay.

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Law of Maintenance

Rs. 250/- allowed to each child is not enough for their maintenance, particularly when they are to get proper education. 1

Nominal amount In one case the husband was working as Station Superintendent in South Central Railway. Although his Pay Certificate was not filed, his pay was stated to be Rs. 3,500/- per month. The wife claimed Rs. 700/per month for his maintenance, but only Rs. 500/- was the maximum that can be allowed under Section 125 of Code of Criminal Procedure. It was submitted that the husband had since retired and that he was paralysisstricken and was hospitalised and, therefore, he himself needed a lot of money for his treatment etc. It was held that in any case the wife was entitled for maintenance and even if nominal amount is to be awarded, the wife was held to be entitled to a minimum of Rs. 300/- per month. But since he was paralysis-stricken, he was permitted to pay the arrears of maintenance in 12 equal monthly instalment, failing which the wife will be entitled to enforce the maintenance order for full amount. 2

Number of dependents In one case the salary of husband was Rs. 1675/- considering the fact that he was required to maintain family of 6 persons, therefore, it was held to be just and reasonable to pass an award of maintenance at the rate of Rs,. 200/- per month. 3

One fifth of pay There is no rational basis for this rule which prevents the wife from claiming more than 1/5 th , even when her needs, and capacity of the husband, warrant awarding large amount. This amounts almost to be rule of the thumb. Such a provision in the Act of 1869, may have a been based on then notions and concepts, as to a woman’s status and position in the society and her claims against the husband. The provisions of the Hindu Marriage Act enacted in 1955 are, on the other hand, based on the recognition of the wife as equal partner of her husband in life. This is just in keeping with the guarantee of equality to every citizen afforded by the Constitution. It does not depend on whether the wife chooses to devote her talents to household work or to sphere outside. This Act does not permit denying her right to share the husband’s earnings, like his 1 2 3

Santosh Kumari vs. Satish Kumar, I (2000) DMC 660 P&H. Anil Kumar vs. Turaka Kondala Roa, II (1999) DMC 683 AP. Takhatben vs. Jashubhai Prabhatsingh Rathod, II (1984) DMC 437 Gujarat; Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387.

Quantum of maintenance—One fifth of pay

291

fortunes or misfortunes, on the footing of equality. This Act enables even the husband to claim maintenance from the wife when former has no source of subsistence and the latter has. Such a rule, apart from being unreasonable and irrational, also cuts at the root of such equality. Such a rule also militates against the reasonableness of approach conceived under this section. 1 This rule of thumb, so far as 1/5 th of the amount of income is concerned, has no reasonable basis except following the provisions of Indian Divorce Act, 1869. Whenever Courts award even interim alimony, social status of the parties, earnings of the husband who has to pay maintenance, liability of the wife, require of particular treatment, etc. all are to be considered while awarding interim alimony or even at the time of passing the final order of maintenance. Section 24 of the Hindu Marriage Act, 1955, speaks of fixing a reasonable amount, and that reasonableness has to be considered from some of the factors mentioned above and also other factors which may crop up in peculiar case. Alongwith that, the Court also should ignore the legal obligations of the husband to earn and maintain the wife. It should not be forgotten that there may be obligations of the husband to maintain other members of his family, and the Court cannot overlook them even through they may not be legal obligations. Court has also see whether the wife is earning so that the husband may not be saddled with the expenses, and ultimately the Court will pass the order considering all the aforesaid relevant factors. For considering those factors, there cannot be any specific formula which will be available in all cases, but each case will depend on its particular set of circumstances. Therefore, this rule of thumb of 1/5 th cannot be applied in all cases and should not be encouraged also. 2 In another case even though, the wife claimed that the husband had been getting a monthly salary of Rs. 7,000/-, there was no evidence adduced in support of the claim. Appellant-husband produced a certificate from the Company in which he is employed showing that his normal monthly salary, including D.A. and allowance would come to Rs. 3,062/-. It was also stated therein that in addition to the above he earns production incentive which will very every month, depending upon the production. He did not disclose as to how much he will be receiving 1

2

Dinesh Gijubhai Mehta vs. Usha Dinesh Mehta, AIR 1979 Bombay 173 (DB): 1978 UCR (Bom) 650: 1979 Mah LJ 367: 1979 Mat LR 209. Ravi Parkash vs. Shakuntala Devi, II (1984) DMC 64 Delhi; Dhirajben Prabhudas Parmar vs. Rameshchandra Shambhulal Yadav, II (1983) DMC 56 Gujarat: AIR 1986 Guj 215: 1983 Guj LJ 455: 1983 (2) 24 Guh LR 860: (1983) Hindu LR 471.

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Law of Maintenance

as production incentive, even though, this was within his knowledge. Under Section 36 of the Indian Divorce Act, alimony pendente lite should not exceed 1/5 th of the husband’s average net income. Learned Single Judge granted Rs. 770/- p.m. taking into consideration certain amount which the husband would have received as production incentive also. The view taken by the learned Single Judge was affirmed by Division Bench. 1

One fourth of pay In one case the husband was leading a fairly comfortable life. He maintained a car and had a telephone. He paid Rs. 4,000/- towards the rent alone which was disputed by the plaintiff. According to her he was paying between Rs. 15,000/- and Rs. 20,000/- rent per month. The defendant did not file lease deed despite opportunity was granted to him. His share of rent of factory premises according to him was Rs. 2,000/-. Two daughters of the second wife of the defendant/husband were studying in private English medium Schools. The entire expenses were also borne by the defendant/husband who was also maintaining his parents. It was held that all the expenses cumulatively demonstrated that the husband had fairly good income. It was held that the total income of the defendant should be at least Rs. 30,000/- per month. In this view of the matter, the wife was held entitled to a reasonable standard of living. She was held entitled to Rs. 5,500/- per month towards maintenance and Rs. 2,000/- per month towards her separate residence. The plaintiff was thus held cumulatively entitled to Rs. 7,500/- per month from the date of the institution of the suit. The defendant who had been paying Rs. 2,000/- as interim maintenance per month to the plaintiff for some time was held entitled to deduct from the total balance amount to be paid to the plaintiff. It was held that there shall be an escalation clauses and according to that the plaintiff shall be further entitled to 12% increase after every three years towards the maintenance and separate residence from the date of this order. 2

One third of pay There is no fixed formula for allowing maintenance out of the income of the husband to the wife. In some cases 1/3 rd of the income of the income of the husband had been allowed as maintenance to the wife and in some cases one-half of the income. The maintenance for the wife is to be fixed keeping in view all the facts and circumstances, of each 1 2

Benny vs. Raichel Bindu, II (1999) DMC 464 Kerala. Sushmita Ghosh vs. G.C. Ghosh, 1999(1) HLR 262 Delhi: 1999(1) CCC 593 (Delhi): 1998(75) DLT 420: 1998(6) AD(Delhi) 91: 1998(4) CLT 313: 1999(1) JCC(Delhi) 119.

Quantum of maintenance—One third of pay

293

case. In this case the wife had joined the profession of advocate. Therefore taking into consideration that even after the marriage the wife had started visiting High Court and that she may be earning some amount in the profession and that she has also got about a sum of Rs. 300 per month as interest. She had to maintain herself and the child and the amount so earned was not considered sufficient for her maintenance. The husband had sufficient regular income from his properties. He also had some income from his profession although his standing was not much. Taking his savings from the income from the properties at the minimum at Rs. 3,000 per mensem and having no other liabilities, except as discussed above, it was held to be fair if a sum of Rs. 1,500 per mensem is fixed as maintenance to be paid by him to his wife during pendency of the petition filed under Section 13 of the Hindu Marriage Act. 1 One third in many cases is a very useful starting point for the court in deciding what would be the final figure. It is a useful proportion to take and then adjust one way or another as the case demands. But it is in no way a rule of law. It is an aid to the mental process when arriving at the appropriate figure and there are many cases where the ‘one third’ figure would not enter the mind of the court, because it would be obvious from the start that the proportion would be nothing like that. For example, the young marriage that lasts but a day or two. It is an extreme case but it is not unknown in this court. 2 It was observed in one case that the normal rule is of 1/3 rd of net income may be granted as interim maintenance to the wife. In this case, the husband very conveniently did not produce his pay slip. In the revision application also, he did not disclosed what is his gross month emolument. However, it was not in dispute that he was an employee of the Water Supplies Board and is a sufficiently senior person. His pay was stated to be Rs. 6,000/- p.m. The son was also employed and his income is stated to be Rs. 7,000/- p.m. To controvert these figures, the petitioners before High Court did not produce anything on record and as such it was held that this amount had to be taken to be a net monthly income. Going by the principle of 1/3 rd of net income, it was held that Rs. 2,000/- was reasonable sum which has to be awarded to the wife as interim maintenance. Further even if Rs. 500/- is deducted from this amount, the amount comes to Rs. 1,500/- as the amount of interim maintenance to be awarded to the wife. Even after taking into consideration the amount of maintenance which she is getting under Section 125, Criminal Procedure Code, this would be more than 1 2

Gurveen Kuar vs. Ranjit Singh Sandhu, I (1992) DMC 49 P&H. Foley vs. Foley, (1981) 2 All ER 857: (1982) 1 DMC (BJ) 41.

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Rs. 1,000/- p.m. and therefore it was held that no interference is called for with the order of the Court to the extent it relates to the direction to pay Rs. 1,000/- p.m. as interim maintenance. 1 In another case it was held that there is no good reason to interfere with the finding of the court below that the evidence available shows that the husband’s income would be Rs. 3,000/- per month and even though the husband pays a sum of Rs. 1,200/- per month by way of rent for the house in which he is presently living, out of the remaining amount he can easily pay Rs. 1,000/- to the wife in as much as the spouses were earlier living with all comforts. 2 In another case the salary of the husband was Rs. 1,066/- p.m. and from this, he had to maintain himself, his parents, his second wife and children. Bearing that in mind, the maintenance order was marginally modified passed in favour of the applicants. In spite of that, the husband was paying Rs. 310/- p.m. in all to the wife and considering his total salary and his liabilities, it was held that the said modification cannot be said to be incorrect and improper. 3 In view of the fact that the wife was given Rs. 500/- p.m. under Section 125, Criminal Procedure Code and looking to the salary of the husband amounting to Rs. 6000/- p.m. and that he was also earning Rs. 2,000/- p.m. from letting out a portion of his house, the award of Rs. 1,500/- in addition to Rs. 500/-, was held to be not excessive. 4 The Matrimonial Court, on appreciation of the evidence, came to the conclusion that the husband had income from his handloom factory, agriculture and also by way of interest on the principal amount of Rs. 2,40,000/- which he got in family partition. His monthly income from all the sources was assessed at Rs. 7500/- and on this basis, the maintenance allowance for the wife and her two children was assessed at Rs. 2225/- per mensem. It was held that there was no infirmity in the order. 5 Rule as to one third of the income which is a rule of the thumb can not be applied since in a case where the husband has relatively low income but has substantial capital assets in the form of three bed-room 1

2 3 4

5

Merubhai Mandanbhai odedara vs. Raniben Merubhai Odedara, I (2001) DMC 164 Gujarat. Meera Nireshwalia vs. Nireshwalia, AIR 1994 Madras 168 (DB). Sou. Leelavati vs. Nivrutti, 1999(1) HLR 559 Bombay. Gandadhar Rai Jadhav vs. Asha Lata Ghatge, I (2000) DMC 199 MP. Surinder Katyal vs. Vaneet Rani, I (1991) DMC 334 P&H.

Quantum of maintenance—One third or one fifth of income

295

flat, which was being occupied by the husband, his son by the previous wife and the son’s family. Notionally the son would be required to contribute for such occupation but then according to the husband the son was maintaining the father. Therefore the rule of 1/3 rd was inapplicable in such case. 1 He was getting a salary of Rs. 1016.35. The entire is to be considered for, the purpose of maintenance. He has also admitted that Shobha Kumari was continuously ill. He has also admitted that formerly. She was also employed as a teacher in a school but at present she was unemployed. Under the circumstances even if the wife has failed to prove any other source of income for Narender Kumar, it was held that that a maintenance allowance of Rs. 300/- per month is just and proper. 2

One third or one fifth of income P.K. Bahri, J. 3 observed that “That maintenance allowance should be usually granted to the extent of one-fifth of the salary to the wife”. It is pertinent to note that the decision of Avadh Behari, J. 4 was not brought to the notice of P.K. Bahri, J. In a reasoned judgment Avadh Behari, J. has concluded that one-third of the salary which is being received by the husband is the starting point. The amount of maintenance which may be awarded can be more or less, depending upon the circumstances of each case. There is no support for the conclusion arrived at by P.K. Bahari, J. that the maintenance allowance which should be granted should be only to the extent of one-fifth. There can be no mathematical basis in calculating the amount of maintenance which should be allowed. What has to be awarded must necessarily depend upon facts of each case. The court has to take the totality of the circumstances into consideration and then find a just and equitable solution to a very vexed problem. 5 Maintenance allowance pendente lite has to be decided on the facts of each case. The Statute does not provide for allowing 1/5 th or 1/4 th or 1/3 rd of the income of the husband as maintenance allowance. Ample discretion has been conferred on the Court. The Court has to 1

2 3 4 5

Dayaram T. Aswaney vs. Veenu, I (1985) 97 Bombay; Naresh Kumari vs. Dharm Pal Gulati @ Neeru Gulati, II (1985) DMC 128 P&H; Dushiant Sabharwal vs. Santosh Gulati, I (1985) DMC 190 P&H; Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984 Marriage LJ 316: AIR 1984 Delhi 320; Kuldip Singh vs. Satwant Kaur @ Kanwal Jit Kaur, I (1983) DMC 476 P&H. Narendra Kumar vs. Shobha Kumari, II (1994) DMC 192 All. order dated 28th October, 1987 in CR 1032/85 of Delhi High Court in Devi Dutt Singh’s case reported at AIR 1984 Delhi 320 Promila Nangia vs. Baldev Raj Nangia, I (1989) DMC 547 Delhi.

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strike a balance so that spouses can live with dignity according to the social status. 1 There is no inflexible rule. There may be cases where more that one-third is right. There are likely to be many others where less than one-third is the only practicable solution. Cases show that “one-third rule” as a flexible starting point is in general more likely to lead to the correct final result than a starting point of equality, or a quarter. In any calculation the court has to have a starting point. If it is not one-third, should it be one half or one quarter ? One-third is a good and rational starting point, remembering that it is not an inflexible rule but only a starting point. Here the husband is earning for more than the wife. She can only keep up the standard of living with his help. Inflation has already values considerably. 2 In the light of all the circumstances of the particular case the court has to arrive at a figure for the maintenance and support of the wife which is reasonable having regard to the income of the parties. In all these cases it is necessary at the end to view the situation broadly and see if the proposals meet the justice of the case. Rough justice according to common sense may be the best that the court can in many cases achieve. 3

Persons of royal descent Persons of Royal descent are commensurate to their position and status. 4

entitled

to

maintenance

Precedents The decisions of courts can never be better than guidelines. They are not precedents in the strict sense of the word. 5 There is no hard and fast rule, and each case stands on its own merits. There is no fixed rule and no certain proportion. The allowance is entirely in the discretion of the court and, if the husband’s income is very large, the proportion, if the court thinks that the appropriate approach in any given cause is to have regard to a proportion, may be smaller whilst it may be necessary to ignore all questions of proportion when the means are very small. The overriding consideration is the actual needs of the parties pending 1 2

3 4

5

Raghubir Yadav vs. Purnima Kharga (Yadav), II (2001) DMC 79 MP. Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I: 1984 Marriage LJ 316: AIR 1984 Delhi 320. Dev Dutt Singh vs. Rajni Gandhi, ibid. Bhanu Kumari vs. Prakaram Singh (Dr.) , 1991 (3) DL 311: 1991 (Supp) DRJ 213. Martin v. Martin, (1977) 3 All ER 762 at p. 768 CA, relied

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proceedings. If there are children of the marriage their needs have also to be provided. The principles enumerated in Section 25 are much wider because they provide for a permanent alimony. Under Section 24 it is not necessary to take a long term view. But the principles enumerated in post-decree cases may be helpful. The matter is one of discretion. The court has an unfettered discretion to award what sum it considers just. 1

Principle for computation Maintenance depended ‘upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties.’ 2 Sub-section (2) of Section 23 makes no departure from the principles enunciated by the Board, except perhaps to a limited extent envisaged in sub-clauses (d) and (e) of the said sub-section. It was held that some of these deductions were not allowable for the purpose of assessment of ‘free income’ as envisaged by the Judicial Committee. Income-tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of husband’s practice as a physician would be deductible only so for as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car. 3 In this case, the claim to maintenance was first laid by a lawyer’s notice of 1951 but the suit was filed in 1954. The trial court decreed maintenance from the date of the decree in 1957 but the High Court thought fit to allow maintenance from the date of the institution of the suit as the terminus a quo for the maintenance claimed by the respondent. It was therefore held that the High Court very rightly fixed

1

2

3

Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984 Marriage LJ 316: AIR 1984 Delhi 320. Kulbhushan Kunwar vs. Raj Kumari, AIR 1971 SC 234: 971 All LJ 1047: 1970(3) SCC 129: 1971(2) SCR 672. Kulbhushan Kunwar vs. Raj Kumari, ibid.

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that sum making it subject to the limit of 25 per cent of the income as found by the Income-tax authorities. 1

Proper proportion What is a proper proportion of the husband’s income to be given to the wife as maintenance pendente lite is a question to be determined in the light of all the circumstances of a particular case; the very fixable and wide ranging powers vested in the court make it possible to do justice. It is the essence of such a discretionary situation that the court should preserve, as far as it can, the utmost elasticity to deal with each case on its own facts. It would be unfortunate if the wide powers of the court are cut down by case law. Or put in a straight jacket or reduced of cast-iron rules. 2 In Preeti Archana Sharma vs. Ravind Kumar Sharma, 3 it was observed that “Section 24 uses the word “support” and does not uses the word “standard” or “status”. Dissenting from this decision it was held that the word “support” is of wide import. Support has to be according to the standard of the parties. Maintenance has to be fixed according to the standing of the parties, their wealth and the environment to which they in their married state have been accustomed. 4 Maintenance depends upon a gathering together of all the facts of the situation, the income of the parties, a survey the conditions and necessities, regard being had to the scale and mode of living, and to the age, habits wants and class of life of the parties. 5

Provisions for rent If the wife continues to reside in the matrimonial home due allowance will be made for that fact. In these days of housing shortage many couples live under the same roof though their married life has been disrupted. But where the husband asks the wife to leave his house and is not prepared to give her shelter the court will make a suitable provision

1

2

3 4 5

Kulbhushan Kunwar vs. Raj Kumari, AIR 1971 SC 234: 971 All LJ 1047: 1970(3) SCC 129: 1971(2) SCR 672. Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I: 1984 Marriage LJ 316: AIR 1984 Delhi 320. AIR 1979 Allahabad 29. Dev Dutt Singh vs. Rajni Gandhi, ibid. Mt. Ekradeshwari vs. Homeshwar, AIR 1929 PC 128 approved in Dr. Kulbushan Kunwar vs. Raj Kumari AIR 1971 SC 234 at 239.

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for accommodation if the husband’s income is large enough for an allowance to her on this score. 1

Requirement of other relatives The quantum of maintenance is to be fixed on the basis of requirements and needs of the non-applicant wife to maintain her standard of living, which is neither luxurious nor penurious but is consistent with the status of the family. It is to be determined after taking into consideration the earnings of the husband and his commitments to the family. 2 With respect of the commitments of husband, the trial Court in one case was of the opinion that the he alone was not the only earning member of the family; his mother was in service and the father was a pensioner. The income of the parents must be just enough for their own maintenance since they were living separately. Even though the three younger brothers were living with him, it was held that it may be the moral obligation upon him to educate and maintain them but such commitments cannot be taken into consideration even though established in the case. 3

Right of minors In the wife’s application under Section 24 of the Hindu Marriage Act, 1955, the provision for necessities of the minor children can also be taken into account while fixing the quantum or rate of interim maintenance. 4 According to the provisions of Section 20 of the Hindu Adoptions & Maintenance Act, 1956, a Hindu a bound during his or her lifetime to maintain his or her legitimate or illegitimate children and the obligation continues so long as a child is a minor. The father, therefore, cannot escape his liability to maintain his children and cannot legitimately refuse to maintain them only on the ground that they are not under his custody. The application moved by the wife for the claim of maintenance is inclusive of what she is spending for the maintenance of the children. Section 26 of the Act lays down that in any proceeding under the Act the Court may from time to time pass such interim orders as it may deem just and proper with respect to the custody, maintenance and education of 1

2 3 4

Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984 Marriage LJ 316: AIR 1984 Delhi 320. Ramesh Narayan vs. Sau. Pratima, II (1985) DMC 97 Bombay. Ramesh Narayan vs. Sau. Pratima, ibid. Bibi Balbir Kaur Kathuria vs. Raghubir Singh Kathuria, AIR 1974 P&H 225.

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minor children, consistently with their wishes, wherever possible. Section 26, therefore, vests a discretion in the Court to make an order for the maintenance pendente lite for the children. 1

Standard of living The personal income of the wife will be taken into consideration in fixing the quantum of maintenance; but then the standard of living of the parties, their status, their background and their outlook in life have got to be considered while fixing the maintenance. In other words, the quantum of maintenance must be commensurate with the standard of living which should be neither luxurious nor penurious. 2

Status In one case the total salary of the husband was between Rs. 1300/- and Rs. 400/-. Having regard to the status of the husband who was serving as Assistant Engineer it was held necessary that the wife should also live the life in the way that would be fit the status of the husband. It was held that in these hard days of rising cost, at least an amount of Rs. 450/- per month should be awarded to the petitioner-wife so as to maintain herself with ordinary comforts which could be expected of a wife of an Assistant Engineer serving with the Government. Moreover, this amount would be only 1/3 rd of the total salary of the husband, as was found by the learned Magistrate. 3

Working wife Marital relationship and birth of child who are separate, are facts which are to be noted. In one case Wife was a Post Graduate degreeholder. Her husband was an officer in a Bank. Child was studying in Nursery standard in the school where her mother was a teacher. In these circumstances it was held this was sufficient to hold that the amount of Rs. 400/- only would not be sufficient for their maintenance. It was required to be supplemented. Source of supplementing this amount was the income of the husband who was legally bound to maintain at least the child even though the mother might not be entitled to maintenance immediately. Clear materials were, not on record to come to the conclusion as to the requirement of the wife and the child. In such circumstanced, it was held ends of justice would be best served with the direction that the opposite party shall open an account in any Bank where the wife stays to commute the distance to School in the name of the child 1 2 3

Baboolal vs. Prem Lata, AIR 1974 Raj 93: 1974 Raj LW 56. Saraswathi vs. Sivaswami, II (1987) DMC 5 Madras. Chandrikaben Chhanalal Patel vs. Rameshchandra Chandilal Patel, I (1986) DMC 232 Gujarat.

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301

with guardianship of mother and deposit Rs. 500/- (five hundred) each month in such account till disposal of the application under Section 125 Criminal Procedure Code. Court could permit withdrawal of amounts from out of the deposited amount as and when mother guardian applies for such amount for proper maintenance of the child determining the nature of necessity. 1 In fixing the quantum of maintenance, the living standard of the parties and the income of the petitioner and the number of persons liable to be maintained out of that income are to be considered. The assertion of the wife in her application under Section 125 of the Code that the husband gets a salary Rs. 1000/- per month gets has not been denied. It is merely pleaded by the husband that the wife herself a salary of about Rs. 200/- as a teacher under the Angabadi Scheme. The wife, in her evidence, had stated that she was in fact serving as a teacher but she had given up that job after serving for one year. Her father also deposed that she gave up the job after serving for 7 months. Thus, it was found that both the witnesses the unanimous that by 1987 when they were examined the wife was not having any income. That husband did not deny such evidence. The persons who were dependent on the income of the husband are the husband himself and his two sons. Taking all these factors into consideration and also the income of the O.P. the quantum of maintenance was fixed at Rs. 200/- per months. 2 Relevant point as to the ability or otherwise of the wife to maintain herself is the date when an order on the application under Section 125 of the Code of Criminal Procedure is made, and not when the application is filed, because in terms of Section 125, Criminal Procedure Code any order regarding payment of maintenance is liable to be changed in consequence of changed circumstance occurring subsequent thereto. If the date of filing of the application could be the only relevant point for deciding the question of inability or otherwise of the applicant, there was no need to enact Section 127 of the Code that on proof of change in the circumstance of any person receiving under Section 125 a monthly allowance or ordered under the same to pay monthly allowance to his wife, children, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he deems fit. Therefore, when from the evidence adduced on behalf of the petitioner, it was fully established that the wife was not able to maintain herself, whereas the opposite party had sufficient means and was still neglecting to maintain her, it was held that even if it is found that the 1 2

Swasti Kar vs. Girija Shankar Kar, II (1992) DMC 425 Ori. Anupama Pradhan vs. Sultan Pradhan, II (1991) DMC 618 Ori.

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wife was earning Rs. 300/- per month as a teacher in a private school, that amount cannot be considered to be sufficient to maintain her keeping in view the soaring prices of the essential commodities these days. She had claimed a sum of Rs. 1,000/- (Rupees one thousand) per month by way of maintenance but under Section 125, Criminal Procedure Code the amount of maintenance could not exceed Rs. 500/- (Rupees five hundred). The opposite party, was drawing a net salary of Rs. 5,500/-. Therefore, he was directed to pay a sum of Rs. 500/- (five hundred) only out of that salary by way of maintenance. 1

1

Veena Devi vs. Ashok Kumar Mandal, I (2001) DMC 177 Patna.

Summery remedy—Working wife

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Chapter 9

Summery remedy SYNOPSIS Introduction....................................304 Object .............................................308 Adultery ..........................................311 Affidavits ........................................311 Alternate remedy ............................312 Arrears ...........................................313 Amendment of complaint................314 Annulment of marriage ..................314 Application by lunatic ....................314 Application of Civil Procedure Code .......................................................316 Attachment of property ..................316 Attachment of future salary ............317 Burden of proof ..............................317 Cancellation ...................................318 Cancellation if necessary ...............319 Cancellation on the basis of divorce deed ................................................321 Challenge to ex parte order ...........322 Change in circumstances ...............322 Child...............................................322 Christian Marriage ........................323 Compromise ...................................324 Co-habitation or Compromise between parties ............................................325 Constitutional goal.........................326 Customary divorce .........................326 Date for determining eligibility .....327 Date from which payment is to be made .......................................................328 Decree of civil court.......................331 Decree of judicial separation.........331 Defence ..........................................332 Delay in making claim ...................333

Determination by civil court.......... 334 Determination of paternity ............ 334 Disentitlement to avail remedy ...... 335 Dismissal in default ....................... 335 Divorced wife ................................ 337 Dropping of proceedings ............... 342 Effect of Act of 1986 ...................... 343 Effect of custody of children .......... 344 Effect of divorce............................. 344 Effect of Section 24 of Hindu Marriage Act.................................................. 345 Effective date of modification ........ 346 Enforcement by imprisonment ....... 346 Enforcement of order..................... 348 Ex parte order ............................... 350 Ex parte order & inherent powers. 352 Finding of Civil Court ................... 353 Finding of Cruelty ......................... 354 Formal application ........................ 355 Fraudulent marriage ..................... 356 Illegitimate marriage ..................... 356 Ingredients to be proved ................ 358 Interference in inherent powers..... 359 Interim maintenance ...................... 361 Interpretation................................. 361 Irregularity in recording evidence 361 Justification to live separately ....... 361 Legally wedded wife ...................... 363 Legitimacy of child ........................ 363 Limitation ...................................... 365 Limitation for enforcement ............ 366 Living in adultery .......................... 369 Living separately by mutual consent369 Locus standi of step mother ........... 370

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Major-child ....................................370 Modification of order .....................371 Modification in revision .................372 Multiple applications .....................373 Multiple orders...............................374 Necessity of proof of marriage .......374 Non compliance .............................375 Nullity Marriage ............................375 Offer of re-union ............................377 Order without evidence ..................378 Paternity of child............................379 Payment of cost ..............................380 Payment under personal law .........381 Pecuniary jurisdiction ....................381 Pleading .........................................382 Pleading of neglect ........................383 Power to impose conditions ...........383 Presumption of paternity................384 Procedure of proceedings ..............384 Proceedings under old Code ..........385 Proof of marriage ..........................386 Proof of neglect ..............................387 Reconciliation ................................387 Reconsideration .............................387 Recording of evidence ....................388 Recovery and modification ............390 Refusal co habit..............................391 Res judicata....................................392 Restoration of ex parte order .........393

Review and recall .......................... 394 Revision ......................................... 394 Right of children ............................ 394 Satisfaction of ex-parte order ........ 395 Scheme ........................................... 396 Scope of jurisdiction ...................... 399 Scope of revision ........................... 400 Second marriage of husband ......... 400 Second revision.............................. 403 Sentence ......................................... 403 Separate living by agreement ........ 404 Service by post ............................... 404 Service of process .......................... 405 Service of summons on witnesses .. 407 Stay of order .................................. 408 Stay of proceedings ....................... 408 Subsequent events .......................... 409 Sufficient income ........................... 409 Summoning of complainant ........... 409 Temporary arrangement................ 411 Territorial Jurisdiction .................. 411 Territorial Jurisdiction for attachment of salary ......................................... 414 Time barred revision ..................... 414 Transfer of proceedings................. 415 Void marriage................................ 415 Voidable marriage ......................... 415 Wife abandoning husband ............. 415

Introduction Section 125 of Criminal Procedure Code, 1973 provides a summery remedy that is aimed at preventing vagrancy and destitution. This provision is as under: 125. Order for maintenance of wives, children and parents.— (1) If any person having sufficient means neglects or refuses to maintain— (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by

Summery remedy—Introduction

305

reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married is not possessed of sufficient means Explanation.— For the purposes of this Chapter,— (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority; (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a terms which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds or refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.— If a husband has contracted marriage with another woman or keeps mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (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. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without

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sufficient reasons she refuses to live with her husband, or that they living separately by mutual consent, the Magistrate shall cancel the order. The procedure for disposal of the petition under section 125 of Criminal Procedure Code, 1973 has been laid down in section 126 which is as under: 126. Procedure.— (1) Proceedings under Section 125 may be taken against any person in any district— (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with application under Section 125 shall have power to make such order as to costs as may be just. The amount of maintenance fixed by the Magistrate under section 125 can be modified or varied. Section 127 provides in this respect. Section 127 is as under: 127. Alteration in allowance.— (1) On proof of a change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceed. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

Summery remedy—Object

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(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that— (a) the woman has, after the date of such divorce, remarried cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,— (i) in the case where such sum was paid before such order, from the date on which order was made; (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under Section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order. The order of maintenance passed under section 125 of the Code can be enforced in the manner provided in section 127 of the Code. This section is as under: 128. Enforcement of order of maintenance.— A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due. A conspectus of above provisions provides a comprehensive but summary remedy for the classes of persons mentioned therein to seek maintenance to the person entitled. Presently it provides a pecuniary limit of Rs.500/- as the maximum amount which can be awarded but a bill is pending in the parliament which if passed, would abolish this limitation.

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Object The right of a wife for maintenance is an incidence of the status or estate of matrimony; that according to the text of Hindu Law to which the parties belong, the obligation to maintain the wife arises from the very existence of the relationship between the parties and that apart from the liability which the husband incurs under personal law or maintaining his wife, the provisions of Section 125 Criminal Procedure Code independently vest the statutory right in a wife to claim maintenance from her husband. 1 A divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under Section 125(1), Criminal Procedure Code. 2 It is one of the fundamental duties of every citizen of country to uphold and protect the sovereignty, unity and integrity of India, to promote common brotherhood and preserve the rich heritage of our culture and to strive towards excellence in all sphere of individual and collective activity. It therefore, follow that how can one be expected to strive towards excellence in case he fails to maintain his wife & child. Strictly speaking the right of the wife, child and parents for maintenance is a distinct statutory right recognised by the Legislature. 3 Section 125 is designed to prevent vagrancy and destitution and provide a summary and speedy remedy to get maintenance. Thus it has a social purpose to fulfil and in arriving at any finding in relation to an application there under, the Court must look to the substance rather than to the form, must avoid strict technicalities of pleading and proof and must make a realistic approach to the material on record so that the purpose aforesaid is not frustrated. 4 The object of a proceeding under Section 125, Criminal Procedure Code is not to punish the husband or the father, as the case may be, for his wilful neglect, but in intended to prevent vagrancy by compelling him to maintain his wife and minor daughter, who are unable to maintain themselves. The Section was introduced in the Criminal Procedure Code as a quick and effective remedy and obviously as a welfare measure with a social purpose behind it which cannot be overlooked by Courts on a hyper technical legal ground, especially when 1 2 3 4

Saraswati Meher v. Jadumani Mehar, 62 (1986) CLT 92. Bai Tahira v. Ali Hussain Fissali Chothia, AIR 1979 SC 362. Alimun Nisa vs. State of U.P., II (1987) DMC 195 All. Aruna Kar vs. Sarat Kumar Dash @ Sachhi, II (1995) DMC 244 Orissa.

Summery remedy—Object

309

the section itself does not prohibit such a course. Liberal interpretation is bound to be adopted. 1 In Pandurang Baburao vs. Baburao Bhaurao. 2 it was contended by the son, that the obligation of a son to maintain his father is preceded by the fulfilment of the parental obligation to maintain and bring up the children during the childhood of the children. If the father fails to carry out this obligation, then he is not entitled to claim any maintenance even from his son under Section 125 of the Criminal Procedure Code. While negativing this contention, the Division Bench of this Court had an occasion to consider the true scope of Section 125(1) of the Code. The Division Bench has observed in this context in para 9 of the judgment as under:— “The provision in Section 125(1) is a very special provision enabling the Magistrate to make an order against a son or daughter for payment of a monthly allowance for the maintenance of the father or mother who is unable to maintain himself or herself. The provision in Section 125 is one of general application and is not related to the personal law of the parties. Implicit in the provision, therefore, is the statutory recognition of the obligation that a son who has sufficient means is bound to maintain a father or mother who is unable to maintain himself of herself. The provision is really in the nature of an ameliorative provision made for the first time recognizing the right of infirm parents who are unable to maintain themselves to be maintained by their son or daughter who is possessed of sufficient means as also providing a remedy to enforce that right. It may be noted that the corresponding provisions in Section 488 of Cr.P.C. 1898, did not make any provision with regard to providing maintenance to parents.” The liability to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of law and morality cannot be clubbed with religion or personal law. Thus, the provisions of Section 125 are truly secular in character. To say the least, it may be described as a step towards the common Civil Code within the contemplation of Article 44 of the Constitution, though in a limited sense. The maintenance of close relatives who are indigent so as to prevent vagrancy and destitution is not dependent upon the personal law of the parties, but is founded upon the individual’s obligation to the society.3

1 2 3

Palanivel vs. B. Saraswathi & 2 Minors, I (1994) DMC 120 Madras. 1980 Cr LJ 256. Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai, II (1986) DMC 370 Bombay’ Chirukandoth Poujil Leela vs. Mambally Bhaskaran, I (1985) DMC 425 Madras; Hem Chandra Shridhar vs. Hemangi

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In the summary inquiry under Chapter IX of the Code entitled ‘Order for maintenance of wives, children and parents’ technicalities of all sorts have to be eschewed and a just conclusion has to be reached. The proceedings under the chapter do not faintly determine the status and the rights of the parties. They have the object of providing speedy relief to prevent vagrancy. 1 However no wife shall be entitled to receive maintenance from her husband under Section 125, Criminal Procedure Code, if she refuse to live with her husband without any sufficient reason which principle is incorporated in Sub-section (4) of Section 125. When the specific question that arises for consideration is whether the wife’s claim for maintenance is to be rejected summarily since similar plea made by her in the Civil Court has been rejected and since her husband’s plea that she deserted him has been accepted by the Civil Court, it was held that it is an accepted principle that the finding of the Civil Court in a matrimonial proceeding is binding on the Criminal Court and the Criminal Court is not entitled to question the correctness of validity of the Civil Courts’ decision. 2 The proceedings under Section 125 are summary in nature and they are not equal to civil suit for maintenance. The order under this Section is just a temporary and tentative order subject of course to the final determination of the rights of the parties by Civil Court. Further this order is subject to the change of the circumstances pointed out under Section 127. 3 In regard to the provisions of the old Code it was held that the sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption "Of the maintenance of wives and children". This chapter, in the words of Sir James Fitzstephen provides "a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral

1 2

3

Hemchandra Nair, I (1983) DMC 1 Bombay; Shrichand vs. IV Additional Dist Judge, Allahabad, Santosh Kumari, I (1986) DMC 91 All. Babu Lal vs. Munnibai, I (1987) DMC 101 MP. See (1989) 3 OCR 142, Purna Chandra Digal v. Sila Digal @ Tube Digal and Another; (1990) 3 OCR 344, Sri Ram Prasannd Das v. Bhabani Devi; 72 (1991) CLT 104; Neheru Bag v. Tapaswaini Bag and Another; 1981 Cri.LJ. 1467, Taja Singh v. Smt. Chhot; 1988(2) Crimes 599, Hari Kishan v. Smt Shanti Devi; Jasholal Agarwala @ Jain vs. Puspabati Agarwala, II (1994) DMC 169 Orissa. Alimun Nisa vs. State of U.P., II (1987) DMC 195 All.

Summery remedy—Affidavits

311

obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, S. 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson's case 6 NWP 205 the scope of the 'Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub-sec. (2) of S. 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights. 1

Adultery In one case the wife was found to be not a reliable witness. There was medical evidence as to her having become pregnant. Her case was not of pregnancy by the applicant or even of a solitary lapse on her part resulting in pregnancy. On a cumulative consideration the totality of the facts and the circumstances of the case, it was held that that the material placed by the husband was sufficient for the conclusion in the summary inquiry that the wife was living in adultery so as to entitle him to an order cancelling the earlier order under Section 125(1) of the Code passed against him for asking a monthly allowance for the maintenance to her. 2 Sub section (4) does not apply to divorced wife therefore there can be no question of her living in adultery or refusing to live with husband without sufficient cause. 3

Affidavits Affidavits can be admitted in evidence if they are properly sworn, and, while appreciating the evidence, the Magistrate applies his judicial mind to affidavits along with other documentary or other evidence. In this case, the Magistrate had discussed the documentary evidence and the affidavits. It was held that the Magistrate can determine the evidentiary value of the affidavits even by assigning common ground. All that is 1

2 3

Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 at 486: AIR 1975 SC 83 at p. 85. Babu Lal vs. Munnibai, I (1987) DMC 101 MP. Vanamala vs. H.M. Ranganatha Bhatta, 1995 (5) SCC 299

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necessary is that order passed by the Magistrate should show that he has brought his judicial mind to hear upon the content of the affidavits. 1

Alternate remedy Section 488 in Old Cr.P.C was already there and was in force when Hindu Adoptions & Maintenance Act, 1956 was enacted and brought in to force. Similarly, it is also to be noted that even in the year 1973 when old Cr.P.C. was amended, the provision under Section 488 were retained in the Cr.P.C. by way of Section 125, and at that time, the Hindu Adoptions & Maintenance Act, 1956 was already there. Thus, it is clear that the remedies under both these laws are available to the wife and these remedies are coexistent, mutually complementary, supplementary and in aid and addition of each other. Hence the remedy resorted to under either of two cannot foreclose the remedy under other Act. The very fact that despite the provisions for maintenance of wife being there under the Cr.P.C., while enacting the Hindu Adoptions & Maintenance Act, 1956 through Section 18 thereunder, the specific provision was made for maintenance of wife, goes to show that Section 18 is a specific provision with regard to the maintenance of wife in this special enactment as compared to the provision in the Cr.P.C. with regard to the wives, children and parents and that the provisions under the Cr.P.C. have to be read only in aid and addition to the specific right conferred with regard to the maintenance of wife under Section 18 of the Hindu Adoptions & Maintenance Act, 1956 and not in derogation or denial thereof. The concept of maintenance to the wife is based on the matrimonial tie and obligation the husband to maintain his wife during his life time. This moral and social obligation has been incorporated as a legal liability in the Act because according to our social values, a nonearning wife without any means is considered to be dependent on the husband and the question of her maintenance consequential to the dependence cannot be left at the sweet will of the husband. 2 Apart from the ground of inability of the wife to maintain herself, in case a husband with sufficient means neglect or refuses to maintain her as contemplated under Section 488/125 of old/new Cr.P.C., under Section 18 of the Hindu Adoptions & Maintenance Act, 1956, a Hindu wife is entitled to live separately from her husband without foregoing her claim for maintenance on grounds enumerated under Section 18(2). Such grounds include desertion or abandonment by the husband without reasonable cause, cruelty, suffering of the husband from a virulent form of leprosy, in case the husband has any other wife living or keeps a 1 2

Husnain vs. State of U.P., I (1985) DMC 160 All. Aher Mensi Ramsi vs. Aherani Bai Mini Jetha, AIR 2001 Guj 148.

Summery remedy—Amendment of complaint

313

concubine or ceased to be a Hindu by conversion or any other cause justifying her living separately. Thus, the provisions of Section 18 are far wider as compared to the provisions of Section 488/125 of the Cr.P.C. old and new. It is, therefore, clear that any order of maintenance under Section 488/125 of Cr.P.C. old and new cannot foreclose the wife’s remedy under Section 18(2) of the Hindu Adoptions & Maintenance Act, 1956 and vice versa. These provisions do reflect the compassion of Law for Women and for their protection in conformity with the concept of reasonable classification against discrimination as provided in Art. 15(3) of the Constitution of India which makes it permissible for State to make special provisions for women. 1 The scope of the two inquiries under section 24 of Hindu Marriage Act, 1955 and section 125 of Criminal Procedure Code, 1973 is entirely different. The grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act cannot possibly thwart the claim of the wife under Section 125 of the Code of Criminal Procedure, which settles the matter finally. 2

Arrears Court has not taken care of complying with the proviso to Subsection (3) of Section 125, Criminal Procedure Code. According to the proviso no arrears beyond a period of twelve months from the date it falls due can be recovered. As a matter of fact an application for the recovery of arrears of maintenance amount beyond one year is barred by the proviso. 3 In one case it was directed that the husband shall pay to the wife maintenance allowance of Rs. 1,500/- (fifteen hundred) per month payable from the date of filing of the application under Section 125, Criminal Procedure Code before the learned Magistrate the first of such monthly payment to be made within the 15 th of April and thereafter within the 15 th of each succeeding month, month by month. In regard to arrears it was directed that the petitioner shall also pay monthly instalment of Rs. 1,000/- per month for the arrears of maintenance alongwith the current maintenance allowance till the entire arrear of maintenance is liquidated. 4

1 2 3 4

Aher Mensi Ramsi vs. Aherani Bai Mini Jetha, AIR 2001 Guj 148. Devinder Kumar vs. Asha Rani. II (1988) DMC 165 P&H. Ganga Prasad vs. Gomti, I (2001) DMC 241 All. Narayan Ch. Das vs. Madhabi Das, II (1999) DMC 131 Cacutta.

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Amendment of complaint In one case the trial Magistrate while granting amendment application has observed the since the fact of second marriage of the husband with second wife came to her knowledge after the filing of the Application, the first wife was justified in making an application for amendment and taking up the new ground of second marriage. The trial Magistrate also permitted the wife to amend his written statement so that no prejudice would be caused to him. It was held that it would be too technical to direct the wife to file another application taking up this ground separately and then go for trial in these applications. This would lead to multiplicity of proceedings. Therefore the amendment was held to be rightly allowed. 1

Annulment of marriage The right of the wife to maintenance depends upon the continuance of her marriage status and once the status of husband and wife is declared to be null and void, the effect would be the same as in the case of void marriage under Section 11 of the Act. The legislature has given the benefit of the provisions of Section 125 Cr. P.C. to a divorced woman as long as she did not remarry by including Clause (b) of the Explanation, but, not such provision has been brought in so as to apply in the case where the marriage is declared null and void. The legislature decided to bestow the benefit of the section on a illegitimate child by express words, but, none are found to apply to a de facto wife where the marriage is void, ab initio or voidable and declared void by a decree of nullity. The benefit of maintenance under Sub-section (1)(a) is available only if the applicant is the wife of the person concerned. Therefore, the distinction drawn by the learned Magistrate that the marriage in a particular case being voidable, the wife was entitled to get the maintenance even after the decree of nullity is wholly erroneous in law. He should have given the effect to the decision of the Civil Court and on the basis of that, the proper course was to cancel the order of maintenance. 2

Application by lunatic Chapter IX of the Criminal Procedure Code deals with an order for maintenance of wives, children and parents. The provisions contained in Section 125 to 128 of the Criminal Procedure Code the self contained Code as far as the proceedings for maintenance are concerned. There is 1

2

Jaiprakash Sumantro Kale vs. Chandrakala Jayprakash Kale, II (1984) DMC 233. Madan vs. State of Rajasthan, I (1993) DMC 71 Raj.

Summery remedy—Application by lunatic

315

nothing in Section 125 or 126 of the Code to show that the application on behalf of the lunatic, cannot be filed by next friend or by a guardian of a lunatic. The underlying object of the provisions regarding maintenance is to prevent vagrancy by compelling a person to support his wife or father or mother unable to support herself/itself. The object is to device the speedy summary remedy so that an adequate provision is made for supply of food, clothing and shelter to a deserted wife, or children who are not taken care of. That is the reason why Section 125 of the Code empowers the Magistrate to grant maintenance upon proof of neglect or refusal to maintain. The only requirement is that the Magistrate concerned should be satisfied about the neglect or refusal to provide maintenance by the person who is liable to provide for the maintenance of the wife, children or parent. In fact, in Section 125 of the Code, nowhere it is provided that an application is necessary. Even without a formal application, if the learned Magistrate is satisfied that there was neglect or refusal on the part of the person to provide for the maintenance, he would be in a position to direct the payment of maintenance. Of course, before passing such an order he will have to follow the necessary procedure. 1 The provisions of Section 125(1)(c) indicates that an application on behalf of lunatic is maintenance. Section 125(1)(c) of the Code reads as under:— “125(1) if any person having sufficient means neglects or refuses to maintain xx xx xx xx (c)

his legitimate or illegitimate child (not being married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormally or injury unable to maintain to maintain itself”.

If an application can be filed by and/or on behalf of a child who has not attained majority or who is physically or mentally abnormal child, why such an application cannot be filed for and on behalf of wife who is mentally incapable to initiate and/or conduct the maintenance proceeding. Similar will be the position with regard to parents entitled to claim maintenance. This is no reason to hold that an application filed by next friends on a guardian is not maintainable. If this logic is applied, the application filed by any person who is clever and shrewd can never be entertained. A clear and shrewd person is likely to present facts so as 1

Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai, I (1986) DMC 103 Gujarat.

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to suit himself/herself. When the evidence is given by such a person it will always be difficult to find out the truth. Simply because it is difficult to find out the truth, it can never be said that the application filed by such a person is not maintainable. It is only when the task is difficult, the common sense coupled with judicial acumen and experience of life should be called to aid and the problem posed before the Court should be resolved. The Court cannot shelve the problem because it appears to be intractable or difficult to be resolved. If an application can be filed by a next friend or a guardian of a minor, similarly such an application can also be filed by a next friend or a guardian of a lunatic. 1 Section 125 Criminal Procedure Code does not contain any bar which would prohibit the father and then custodian of his mentally deranged daughter, who became so incapacitated, because of the cruelty inflicted by her husband, to move the Court of the first instance pleading for a maintenance allowance for his daughter and grand-daughter. When even in the petition for maintenance, it has been specifically mentioned that the father was initiating action as next friends and guardian of his incapacitated daughter and his minor grand-daughter and there was no dispute by the husband about the incapacity of his wife due to mental derangement, the application was held to be maintainable. 2

Application of Civil Procedure Code The proceedings are not civil proceedings so as to attract the provisions contained in the Code of Civil Procedure. It was, therefore, held that the provisions contained in Order 1, Rule 10 of the Code of Civil Procedure that relate to impleading of parties to a civil suit cannot apply to an application filed under Section 125 of the Code. 3 However in regard to a petition on behalf of lunatic through next friend it has been held that it is required to keep in mind the principles underlying the relevant provisions of the Civil Procedure Code. 4

Attachment of property Section 421(2), Criminal Procedure Code speaks of summary determination of any claim made by any person other than the defaulter in respect of any property attached in execution of such warrant. This is procedure for determining the claim of the third party. The Magistrate 1

2 3 4

Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai, I (1986) DMC 103 Gujarat. Palanivel vs. B. Saraswathi & 2 Minors, I (1994) DMC 120 Madras. Muniswamappa vs. Nagamma, II (1987) DMC 261 Karnataka. Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai, I (1986) DMC 103 Gujarat.

Summery remedy—Burden of proof

317

proceeded to summarily determine the claim and hence accepted the affidavits in evidence. It was held that there was no impropriety or illegality therein. If he was aggrieved by summary determination of his claim, he could very well go to civil court for the determination of his rights and claim. 1

Attachment of future salary In one case the warrants were issued by the Magistrate for certain periods for attachment of salary when due found in the office of the petition after it had been withdrawn from the Government Treasury. These warrant could, by no means, be called affecting the attachment of future salary. It is precisely for this reason that Section 466 of the Code regarding objections to writs of attachment is brought in. For in cannot be forgotten that Section 125 Criminal Procedure Code, provides a summary remedy to the wife or a child to claim maintenance for herself in a standard of living which is neither luxurious nor penurious but is moderately consistent with the status of the family. No technical impediment in that direction, as is the mandate of the Code, can be allowed to frustrate that object or to elongate the process or proceedings. 2

Burden of proof The burden of the proving all requirements of Section 125 Criminal Procedure Code being on the applicant, she will have to establish the same by leading acceptable evidence in that behalf. 3 It was held that it within their special knowledge as to what she is earning from this machine since she is possessed of it. She has not adduced any evidence whatsoever. When she filed application under Section 125 Criminal Procedure Code. It was her burden to discharge by showing that she is not able to maintain herself. She does not discharge this burden, especially after having got the machine. It was necessary for her to have made a statement or adduced evidence to show as to how much work she is taking from this machine and what it is fetching to, her and also to show that after paying instalment and interest, if any, what still is left with her for her maintenance. It was found there was nothing on record to show as to since when she is possessed of this machine and how much money she has already earned. Under these circumstances, she

1 2

3

Husnain vs. State of U.P., I (1985) DMC 160 All. Madhav Kumar Anand vs. Sudesh Kumar, Advocate, II (1984) DMC 45 P&H. Nasreen Siddigui vs. Syed Mohd. Fazil, II (1991) DMC 139 MP.

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was held not entitled to any maintenance because she had failed to prove that she is unable to maintain herself. 1 The proceedings under Section 125 of the Code for maintenance are not essentially criminal proceedings and he standard of proof required to prove the guilt of the accused in criminal cases cannot be applied to a petition under Section 125 of the Code for maintenance. It was held that for want of correct approach for appreciating the evidence in proceeding under section 125 of the Code, the learned Magistrate fell into error and it has resulted into wrong appreciation of evidence and consequently resulted in flagrant miscarriage of justice. Therefore it was held learned Session Judge considered the evidence on record in the proper perspective and reached to a different conclusion, which was necessary for doing justice to a lady who was driven away by the husband after giving her ill-treatment. Consequently, it was held that there was no legal infirmity in the approach and also in the finding reached by the learned Session Judge. 2 Once the marriage procedure and paternity of child was admitted, it does not lie in the mouth of husband/father to contend that no valid marriage came into existence as essential rites were not performed. Strict proof of performance of essential rites is not required. 3

Cancellation The first three sub-sections of Section 127 deal with circumstances under which the Magistrate could bring about with alteration in, cancellation of or variation in the order under Section 125, Sub-section (1) deals with alternation in the allowances as the Magistrate thinks fit, on proof of a change in the circumstances of any person receiving, or ordered to pay monthly allowance. It was held that under this provision, an order directing payment of maintenance could even set be at naught, on proof of change in the relevant circumstance. The expression “alteration” used in sub-section (1) would contemplate such an order also. 4

1 2

3 4

Meera Devi vs.Chandraher Vishwakarma, II (1988) DMC 533 All. Shivaji vs. Radhabai, I (1985) DMC 155 Bombay: Balkirshna Jagannath Mangsule vs. Kalpana & State., II (1984) DMC 257 Bombay: Padminibai @ Panabai vs. Sambaji Dhondiram Bhosle, I (1983) DMC 264 Bombay. Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, 1999 (7) SCC 675 Mambakkattua Manu vs. Mambakkattu Vasantha, I (1984) DMC 425 Kerala.

Summery remedy—Cancellation if necessary

319

Cancellation if necessary The Magistrate having jurisdiction, can cancel the order of maintenance only if his wife in whose favour the maintenance has been granted is living in adultery or without sufficient cause refused to live with her husband or if the parties are living separately by mutual consent. In view of the case in hand, it was held that if the facts are tested, no such order has been passed by the trial magistrate, nor the petitioner has invoked the provisions of Clauses (5) of Section 488 quoted above. The order of want for cancellation under the above provision remains in tact and no other provision can be applied to the execution proceedings because the order has not been cancelled in this case. The husband cannot take the plea that the parties have reunited and resumed cohabitation as a consequence birth of a child took place cannot be a valid defence available in the execution proceeding for the mere fact that the husband has to take recourse to Clauses (5) of Section 488 Cr.P.C. It is immaterial that the parties reunited after the maintenance order was passed which appears a temporary phase as the relations of the parties got strained again, the wife took recourse to file execution application for recovery of arrears of maintenance. 1 The proceedings under the Hindu Marriage Act are quite independent inasmuch as the interim maintenance granted under Section 24 of the Hindu Marriage Act is only for a temporary period during the pendency of the proceedings before the Matrimonial Court, whereas the amount awarded by the Judicial Magistrate under Section 125 is not for a limited period, but is for period during which the wife and another dependants of the husband are neglected. It is only after final verdict of the Civil Court, declaring of their respective rights, the husband may approach the Criminal court to cancel or vary the order of maintenance. 2 The proceedings under Section 24 of the Hindu Marriage Act and under Section 125 Cr.P.C. are different and that they are invoked for different purpose before the courts of competent jurisdiction. They do not overlap over the other. The proceedings under Section 24 of the Hindu Marriage Act are only invoked to meet a special situation where the proceedings are pending before the Matrimonial Court and to withstand the litigation the uncared wife is provided with succour (maintenance) pendente lite. The benefit granted under Section 24 is purely temporary in nature and gets extinguished after the matter is finally decided. It is only after the rights of the parties are finally 1 2

Ram Lal vs. Kiran Bala, II (1985) DMC 232 J&K. T. Rajender Singh vs. Maya Devi @ Gayatri, Hyderabad, 1996(2) CCC 318 (AP).

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decided, the party seeking cancellation or variation can approach the criminal court under Section 126 of the Cr.P.C. 1 Following observations considerations for cancellation:

may

also

be

seen

in

regard

to

‘Assuming that the petitioner’s income has gone down in the meantime, still it will be appropriate that he pays certain amount to his wife towards maintenance. I am unable to find any fault with the impugned order on this account. The petitioner has produced a certificate from the said Phosphate Company Limited purporting to show that after deduction of provident fund and pension scheme, his salary received from the Company for one year was Rs.34,755/–. Assuming that salary is as low as reflected in the said certificate and accepting the fact that both petitioner as well as the respondent who are living alone, but one fact that cannot be lost sight of the fact that she is meeting all the parental obligations towards the daughters. In that view and in view of other facts noticed above, it will be desirable and appropriate that the petitioner should pay a certain part out of his income to her. I consider that taking an over all view of the circumstances brought on record, it will be fair if the petitioner pays to the respondent, from the date of her superannuation, maintenance at the rate of Rs.700/- p.m. Ordered accordingly. The respondent is given liberty to move for enhancement of this maintenance in case there is any evidence of the increase in petitioner’s income.’ 2 The order of cancellation under Sub-section (2) of the Section 127 Criminal Procedure Code, 1973 is normally effective prospectively. The language of Sub-section (2) of Section 127 empowers the Magistrate to cancel or vary the order according to the decision of the competent Civil Court and till then the order passed by him remains effective. So far the language used in the provision, it may be stated that the order that may be passed under Sub-section (2) of Section 127 shall be prospective in operation. 3 If it is a disqualification for maintenance it could be properly urged that the date on which this disqualification is found to have been incurred should be the date from which the cancellation should operate. In other words the Magistrate who cancels the maintenance should mention the date the date from which it should operate: otherwise it

1

2

3

T. Rajender Singh vs. Maya Devi @ Gayatri, Hyderabad, 1996(2) CCC 318 (AP). Devinder Nath Sondhi vs. Raj Sondhi, 1997 (1) AD 81 (Del): 1997 (1) DMC 298: 1996 (39) DRJ 639: 1997 JCC 96. Madan vs. State of Rajasthan, I (1993) DMC 71 Raj; Harikishan vs. Shanti Devi, I (1989) DMC 29 Raj.

Summery remedy—Challenge to ex parte order

321

would be the date of the cancellation itself. There may be cases in which the husband is satisfied that the wife may live separately; but after the order for maintenance is made he offers to take her back. In such a situation it would be obviously unjust to cancel the grant of maintenance with effect from the date of the original order. 1

Cancellation on the basis of divorce deed Under Section 127(3)(c) of the Code of the Magistrate is empowered to cancel the order of maintenance passed under Section 125 if he is satisfied that— (1) the woman had obtained divorce from her husband and (2) she had voluntarily surrendered her right to maintenance after her divorce. In this case the alleged divorced deed was produced on record. It was held that looking to the tenor of the said deed it cannot be said that the wife had obtained divorce from the husband. It only provided that both the parties to the deed willingly and with free consent took the divorce from each other. The wife had not taken any part at the time of execution of divorce deed. It was her husband who had obtained divorce from the petitioner/wife even if it is assumed that the alleged divorce deed is signed by the petitioner/wife voluntarily because in the summery proceedings it was not necessary to decide whether the said divorce deed is voluntarily and willingly signed by the wife. It was not alleged that the wife obtained divorce because she wanted to remarry. Therefore it was held that once it is held that the petitioner wife had not obtained divorce from her husband then she is entitled to have maintenance and provisions of Section 127(3)(c) would not be applicable. 2 It was further held in this case that it cannot be said that there was any reason for the wife to surrender her right to maintenance under Section 125 of the Code. When it was clear that the wife had not engaged any advocate or had taken any legal advice and it was an admitted position that the husband had not paid any lump sum amount for the maintenance of wife, it was held that it would be difficult to gulp down the contention of the husband that the wife had willingly voluntarily surrendered her right to maintenance under Section 125 of the Code. 3

1

2

3

Sadashiv Nathu vs. Parubai W/o Sadashiv, AIR 1967 MP 85: 1966 Jab LJ 658: 1966 MPLJ 1065: 1967 Cri LJ 379. Sitaben vs. Rameshbhai Maganbhai Parmar, II (1985) DMC 147 Gujarat. Sitaben vs. Rameshbhai Maganbhai Parmar, ibid.

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Law of Maintenance

Challenge to ex parte order The existence of a remedy under proviso (2) Section 126 Criminal Procedure Code to have the ex parte order set aside by showing good cause, does not preclude the respondent from challenging it in a revision under Section 397 of the Code, the legality of the order setting him ex parte. The scope of scrutiny in the two proceedings however, would be different. While an application under Section 126 (2) proviso the Court is to find out, on the oral and documentary evidence adduced for the purpose, if the respondent has shown good cause for his inability to receive service of his failure to attend Court, in a revision under Section 397, the Court’s scrutiny is limited to the regularity of the proceeding and the correctness legality and property of the order and the respondent cannot offer to show good cause, which he could do only under Section 126. 1

Change in circumstances It is the duty of the Court to see that the amount of maintenance is not only the same in nominal terms but remains the same in real terms. In the case of salaried people, the restoration of the salary to the real terms is achieved by way of grant of dearness allowance. Enhancement of maintenance on account of rise of cost of living index would serve the same purpose and does not bring about any modification of the real amount and does not require any special change in the circumstances of the person. The simple fact that the nominal amount does not represent the same real amount as granted, is a sufficient change in the circumstances. 2

Child The fact that such an interpretation would be expedient and convenient is not always a sure guide, as the legislature, if necessary, can intervene to fill up any lacuna. In this view it was held that the expression “child” in Section 488 Crl. P.C. while it postulates the immediate relationship of the claimant for maintenance with the person who is called upon to pay maintenance by the closely following neutral pronoun “itself” signifies and emphasizes the infancy of the claimant. The inability to maintain “itself” is related to infancy. The expression “child” of course cannot be confined to a child of tender years, a person below 14 or 16, as has been contended for in some cases, since in that case there can be no doubt about its inability to maintain itself. The question of ability to maintain one-self can arise only in the case of 1 2

A. Simon vs. Venkatammal, II (1991) DMC 66 Mad. Subbayal vs. Muhuswamy, II (1986) DMC 63 Madras.

Summery remedy—Christian Marriage

323

young persons during adolescence. The meaning of the word ‘child’ in Section 488 must be taken to be a minor whether under the Indian Majority Act or the Court of Wards Act or the Guardians & Wards Act and, thus the court differed from the decisions which have taken the view that any person who is unable to maintain himself or herself of whatever age, without limit would be a child under Section 488, because he is a child of his father. The result would be a son or daughter under 18 would be a child under the Act and where a guardian is appointed by court, the childhood for the purpose of Section 488 would continue during the nonage or legal infancy, that is, till the completion of 21 years. 1

Christian Marriage It is the public policy in this Republic to give protection to woman who are treated to be a class of suffers. While considering right and liabilities, this is to be kept in mind by Courts. Section 125, Criminal Procedure Code has created a forum where all wives are given maintenance on proving circumstances. However, the same is not conclusive in view of the nature of enquiry conducted by it. Relationship can be proved in a Civil Court contrary to the finding of the Criminal Court. Finding of a Criminal Court would not be res judicata in respect of relationship between the parties. Since Criminal Court gives temporary relief, the maximum amount of maintenance it can grant is limited. When there is a divorce proceeding, Court competent to grant divorce is vested with powers to grant alimony. Both Criminal Court and the matrimonial court can grant alimony or maintenance as an interim protection. This clearly leads to the conclusion that a Christian wife has right to be maintained by her Christian husband which is a part of the right and obligation of marriage. No custom is required to be pleaded or proved in support of the same. This is a need of the society without which a good society shall perish. Accordingly, a person who contests the right of the Christian wife has to prove that there is either a statutory or customary prohibition for a Christian wife to get maintenance from a Christian husband. 2 When there is no such evidence, a Christian wife has a right maintenance from her Christian husband where he is responsible for a situation under which the wife is compelled to leave the roof of her to set husband. 3 1

2 3

Amirthammal vs. K. Marimuthu, AIR 1967 Madras 77 (DB): 1966 Mad LW (Cri) 153: (1966) 2 Mad LJ 506: 1966 Mad LJ (Cri) 832: 1967 Cri LJ 205. Manikya Devi vs. Pabitra Swaishing, II (1990) DMC 302 Orissa. Manikya Devi vs. Pabitra Swaishing, II (1990) DMC 302 Orissa.

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Law of Maintenance

Right of such wife for maintenance has also been accepted by the Madras High Court. 1

Compromise A perusal of Section 488, Criminal Procedure Code shall make it clear that it contemplates of only two kinds of orders. The application can be allowed and the amount of maintenance determined or the application can be dismissed. A Magistrate cannot pass an order not allowing maintenance for the present but to direct that in the event of certain conditions coming into existence maintenance allowance shall be payable. Consequently, such order shall amount to dismissal of application under Section 488, Criminal Procedure Code on account of the husband and wife coming to terms and the wife going back to live with her husband. When the application under Section 488 had in substance been dismissed, there could be no question of the execution of the order passed thereon. 2 In other words, on the basis of this order the Magistrate can not direct the recovery of the maintenance allowance as agreed upon between the parties. To say that after the parties have come to a compromise, the Criminal Court ceases to have jurisdiction, shall be against the law. Section 488, Criminal Procedure Code gives a summary power to the Magistrate. His orders are not final, in the sense that they can be reconsidered by a civil Court in a suit instituted by the wife or by the husband. The jurisdiction of the civil Court is unlimited; while the Magistrate can pass an order for the maintenance of the wife and children for the period that no order to the contrary is passed by the Court. In the circumstances, there was no illegality by the Magistrate in taking cognizance of a second application under Section 488, Criminal Procedure Code. 3 Any decision in an earlier proceeding shall be binding on the parties, but a relief previously refused can be prayed for and granted on fresh grounds or on similar grounds having come into existence since after the dismissal of the earlier application. Consequently, where an application under Section 488 Cr.P.C. is dismissed on the ground that the husband and the wife had come to terms and the wife had started living with the husband, she can make another application if the husband later

1 2

3

Stella Pakaim vs. K.P.P. Rajaih Ratnam, AIR 1966 Mad 225. Nathuram vs. Ramsri, AIR 1965 All 129: 1964 All LJ 72: 1965 (1) Cri LJ 273. Nathuram vs. Ramsri, ibid.

Summery remedy—Co-habitation or Compromise between parties

325

refuses or neglects to maintain her. The cause of action would be fresh one and second application is not barred. 1

Co-habitation or Compromise between parties The basis of the provision contained in Section 488 Criminal Procedure Code, 1898 is that a husband is entitled for cohabitation with his wife, so long as he does not disqualify himself to the enjoyment of this right, and the wife has the right to be maintained by him, so long as she does not become disentitled to the same, in any of the ways stated in the said section. These rights are reciprocal. 2 Subject to the provisions of this section, the husband can at any time during the subsistence of the marriage demand that his wife should live with him; and similarly a wife can demand that she should be maintained by her husband. These mutual rights arise out of the legal status of being husband and wife; and so long as that relation subsists, it is open for a wife to revoke or withdraw the consent which she had given to live separate from the husband and claim to be maintained by him. The mutual consent only keeps in abeyance the wife’s right to get maintenance from her husband, and the moment she withdraws or revokes her consent she becomes entitled to get maintenance from her husband and also subjects herself to the obligations to him as wife. 3 In one case, after the passing of order of maintenance, there was a genuine effort by wife to rehabilitate herself in her matrimonial home but in vain. It was held that the previous orders of maintenance could at best be taken to have been suspended but not wiped out altogether. The other view can be that the maintenance order stood exhausted and thus she be left to fight a new litigation on a fresh cause of action. It was held that out of the two courses, first course should be preferred because resort to the second option would lead to injustice. 4 The Code is complete on the topic and any defence against an order passed under Section 125, Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two 1

2

3

4

Nathuram vs. Ramsri, AIR 1965 All 129: 1964 All LJ 72: 1965 (1) Cri LJ 273. Ammukutty Amma Ponnamma vs. Narayana Panikkar Neelakantan, AIR 1967 Ker 216: 1967 Ker LT 258: ILR (1967) 1 Ker 607: 1967 Ker LR 232: 1967 Ker LJ 379: 1967 Mad LJ (Cri) 305: 1967 Cri LJ 1334. Ammukutty Amma Ponnamma vs. Narayana Panikkar Neelakantan, ibid. Mahua Biswas vs. Swagata Biswas, 1998 (2) SCC 359: 1998 (1) MPWN 186.

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Law of Maintenance

parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Sections 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. A statutory order can ordinarily be demolished only in terms of the statute. That being absent the Magistrate will execute the order for maintenance. 1

Constitutional goal Though Section 125 benefits a distressed father also, main thrust of the provision is to assist woman and children in distress. That is fully consistent with Article 15(3) of the Constitution which states that the prohibition contained in the Article shall not prevent the State from making any special provision for woman and children. Article 39 of the Constitution may be noted which states, inter alia, that the State shall, in particular, direct its policy towards securing that the citizens, men and woman equally, have the right to an adequate means to livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 2

Customary divorce In Are Lachiah vs. Are Raja Mallu, 3 it has been laid down with reference to Section 29 (2) of the Hindu Marriage Act: “Nothing contained in this Act shall be deemed to affect any right recognized by custom or recognized by any special enactment to obtain dissolution of a Hindu Marriage, whether solemnized before or after the commencement of the Act. Thus, the Act does not disturb the position which a customary divorce occupied 1

2

3

Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: 1979 AIR (SC) 442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377: 1979(1) APLJ 31. Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238 Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker 479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All Cri LJ 224. (1963) 1 Andh WR 295.

Summery remedy—Date from which payment is to be made

327

before the enactment of the Act. What has to be found as a fact for this exception to operate is, whether there had been as a fact such customary divorce or dissolution of a Hindu marriage. Therefore the customary divorce can be pleaded and proved in accordance with law. 1

Date for determining eligibility There is no legal restriction or bar placed on the right of the aggrieved “wife” to apply before the Magistrate for the maintenance under Section 125 Cr.P.C. The maintainability of her application has to be judged on the date when such application is filed. The stage of proving the allegations of neglect and refusal is a subsequent stage upon the proof of which or otherwise her claim would either be allowed or disallowed by the Court. It is significant to note in this connection that under the Explanation (b) of Section 125(1) Cr.P.C. “wife” includes a woman, who has been divorced or has obtained a divorce from her husband, and has not remarried. On the basis of this explanation it can be argued that a wife, who has remarried, ceases to be “wife”. But the question is on what date does this relationship of husband and wife terminate for purpose of Section 125 Cr.P.C. If the divorced wife files an application for maintenance under Section 125 Cr.P.C. and till that date she has not remarried, then in those circumstances she would continue to be the wife and her application claiming maintenance from her husband would be legally maintainable. But if the divorced wife remarried and subsequent to her remarriage she files and application under Section 125(1) Cr.P.C., in those circumstances she having ceased to be the wife on the date of application, in view of the explanation, her application would not be maintainable. 2 Thus the status of wife has got to be seen on the date when the application under Section 125 Cr.P.C. is filed. If she retains that status the application is maintainable and if she loses that status, the application is not maintainable as on the date it is filed. 3

1

2 3

Edamma vs. Hussainappa, AIR 1965 AP 455: (1965) 2 Andh LT 212: 1965 (2) Cri LJ 712. Ramesh Chandra vs. Beena Saxena, II (1982) DMC 341 All. Ramesh Chandra vs. Beena Saxena, ibid.

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Law of Maintenance

Date from which payment is to be made It is within the discretion of the Court making the order of maintenance to award a sum either from the date of the application or from the date on which the order is passed. 1 In this case, the trial Court had dismissed the application of the application of the Revisional Court, has made the order of maintenance, making it retrospective in effect in such matter. It was held that it was expected of the Revisional Court to take a realistic view of the matter as the proceedings, at times, consume considerable time before an order is passed, accumulation of arrears of maintenance allowance, in case the order is made retrospective in effect, at times results in great deal of hardship. To avoid this, the Court should consider awarding of interim maintenance, which has been held to be awardable by the Supreme Court, but if such interim maintenance as not asked for and awarded, atleast the Revisional Court should, in the event of making the order retrospective in effect, record reasons for doing so lest it results in not merely a great deal of hardship to the husband but also deprives forums of granting the grounds or reasons on the basis of which a retrospective maintenance order is passed. 2 Therefore in this case when no reasons were indicated, it was held that the ends of justice would be sufficiently met if the order is made effective from the date it was made. 3 Section 125 of the Cr.P.C gives discretion to the Magistrate for imposing sentence of imprisonment for a term which may extend to one month or until payment, when the person cause fails to comply with the order without sufficient. The question was that the learned Session Judge should have considered whether the learned Magistrate has properly exercised the discretion or not. The learned Session Judge had not given any reason for the same, but the reason given by the learned Sessions Judge to modify the order of the learned Magistrate was that if the period of imprisonment is reduced perhaps he would earn money and pay to the original applicant wife. It may, be otherwise also, if he is kept in the jail for a long period within the permissible limit under Section 125(3) then the defaulting husband against whom the order is passed and/or any of his relatives may come and pay up the arrears of maintenance amount. It is, therefore, clear that the reasoning given by the learned Session Judge

1 2 3

Ramesh Chandra vs. Beena Saxena, II (1982) DMC 341 All. Ramesh Chandra vs. Beena Saxena, ibid. Ramesh Chandra vs. Beena Saxena, ibid; See also Gafoor Ahmad vs. Amnabai, II (1986) DMC 389 MP.

Summery remedy—Date from which payment is to be made

329

cannot be sound reasoning on which the order passed by the learned Magistrate can be modified. 1 The date from which interim maintenance can be granted has been subject-matter of several controversies. There is no hard and fast rule as to from what date the grant can be made. It would depend on the facts and circumstances of each case. There is no legal bar for granting it prior to date of application. 2 Reference in this context may also be made to some other decisions of this High Court 3. In Gouri Das’s case 4, it was held that though the date could be fixed from the date of service of summons, yet no hard and fast rule can be laid down and the Court has to decide the date from which the maintenance is payable having regard to the facts and circumstances of each case and the conduct of the parties. In Sarojini’s case 5, it was held that in case of laches and inordinate delay in making the application, the same may be taken into consideration for not allowing the claim prior to the date of application. Another view that payment could be effective from the date of service of summons was indicated by Punjab and Haryana High Court in the cases of Sudershan Kumar Khurana vs. Smt. Deepak: 6 and Sarita Mehta vs. Arvind K.Mehta: 7 and by the Calcutta High Court in the case of Smir Kr.Banerjee vs. Smt. Sujata Banerjee. 8 Another view is that the interim maintenance should be payable from the date of order. 9 But this view was expressly dissented from by the Orissa High Court 10 by observing as under:

1

2 3

4 5 6 7 8 9

10

Chandrikaben Navnitlal vs. State of Gujarat, I (1989) DMC 35 Gujarat. Yudhisthir Nayak v. Smt. Rukmini Nayak 32 (1990) OJD 94 Crl Gouri Das v. Pradyumna Kumar Das, 62 (1986) CLT 218; Samru Singh v. Dhanmani Singh 62 (1986) CLT 419:II (1986) DMC 189; and Sarojini Sarangi v. Dr. Bishwanath Sarangi 66 (1988) CLT 593 593:II (1986) DMC 152 ibid ibid AIR 1981 P&H 305. (1978) 80 PLR 211. Vol. 70 CWN 633. Ramesh vs. Chitra, II (1988) DMC 502 MP; Madhu Sudan vs. Pushpa Bahwana II (1987) DMC 461 Raj Ram Chander Agarwalla vs. Mrudula Poddar @ Agarwalla, II (1991) DMC 48 Orissa.

330

Law of Maintenance

‘The view indicated by the learned Single Judge of the said Court is that under Section 21 of the Act ordinarily the amount of maintenance is granted from the date of the order passed by the Court. Section 24 of the Act nowhere postulates such a condition. The foundation for the view has not been indicated in the judgment. Therefore, the decision of Madhya Pradesh High Court in this regard is of no assistance to the petitioner. So far as the decision of the Rajasthan High Court is concerned, the only principle laid down by the Court seems to be that grant of maintenance pendente lite is discretionary which as to be exercised on sound legal principles and not on caprice or humour. As a general principle, there can be no reason to differ with the view expressed, but there is nothing is the decision which throws any light on the controversy relating to the date from which the interim maintenance can be awarded. 1 Clause (2) of Section 125 stated that the Court can order maintenance from the date of the order or if so ordered, from the date of the petition. Therefore the discretion is given to the Court. Merely because of the words ‘so ordered’ contained in Section 125(2) Crl. P.C., ‘from the date of the application for maintenance’, it cannot be said the date of the petition. If the Court considers the circumstances of a particular case and order maintenance from the date of the petition, it cannot be said that the Court exercised the discretion which is not vested in it. It must be noted that in cases where special reasons are to be assigned, the Criminal Procedure Code has specifically stated so in the provisions. But, there is no mention specifically in Section 125(2) Criminal Procedure Code that the Court must give special reasons for awarding maintenance from the date of the petition. 2 It is generally expected that maintenance shall be payable from the date of the order. If the Magistrate wants that the maintenance can be awarded from the date of the filling of the application, the Magistrate can do so, by invoking the provisions of Section 125(2) Criminal Procedure Code. If no mention has been made in the order of the Magistrate about the date of the commencement of the claim, it has to be construed that it will take effect from the date of the order. In this case, the Magistrate passed the order granting maintenance with effect from the date of filing of the petition. No where the Session Judge has mentioned that the order of maintenance will take effect from the date of filing of the revision or from the date of passing the order. It is only the figure of maintenance that has been substituted by enhancement of the 1

2

Ram Chander Agarwalla vs. Mrudula Poddar @ Agarwalla, II (1991) DMC 48 Orissa. K. Sivaram vs. K. Mangalamba, II (1989) DMC 452 AP.

Summery remedy—Decree of judicial separation

331

amount. When two views are possible basing on the facts and circumstances in awarding the maintenance, the view that in favourable to the maintenance-holder has to be preferred. 1 It is perfectly permissible under Section 125 Sub-section (2) of the Criminal Procedure Code to grant maintenance from the date of application. 2

Decree of civil court A final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But certain factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication. Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a higher maintenance. 3

Decree of judicial separation A decree of judicial separation should not be passed if the wife without sufficient reason does not live with her husband. The fact that a decree for judicial separation has been passed means that the wife has no reasonable ground not to live with her husband. In such a case it is clear that sub-section (4) of Section 488, Criminal Procedure Code applies, and the wife is not entitled to maintenance. In such a case, therefore, the order for maintenance must be cancelled. 4 But Allahabad High Court has taken a different view which is discussed hereafter. There is a basic difference between a decree for divorce and a decree for judicial separation as in case of divorce the status of husband and wife comes to an end whereas in case of judicial separation the 1 2 3

4

M. Shobha vs. Mysker Madhusudhan Rao, I (1988) DMC 131 AP. Dashrath vs. Sou. Kusum, I (1988) DMC 133 Bombay. Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ 3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978 SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1. Dahyalal Amarthalal Bhagat vs. Bai Madhukanta W/o Dayalal Amarthalal, AIR 1965 Guj 247: ILR (1964) Guj 968: (1964) 5 Guj LR 895: 1965 (2) Cri LJ 497 (2).

332

Law of Maintenance

status of wife and husband continues. Even in case of a decree for judicial separation passed on the ground of desertion of wife the fact of desertion of the wife before the decree is passed cannot be taken into consideration after the decree is passed as the liability of the husband to maintain his wife continues under Section 125(1)(a) of the Code and it cannot be held that he is not liable to maintain her in view of Section 125(4) of the Code as there is sufficient cause for the wife not to live wit the husband after the decree for judicial separation has been obtained by the husband against her. 1 It is significant to note that the words used in Section 125(4) of the Code are “without any sufficient reasons she refuses to live with her husband” and not “without sufficient reason has refused to live with her husband”. It is obvious that after the decree for judicial separation has been passed there is sufficient reason for the wife to refuse to live the husband although before the said decree is passed there may not have been sufficient reason for her to refuse to live with her husband if she deserted him. The decree for judicial separation itself is a sufficient cause for the wife not to live with her husband. If the husband is not maintaining his wife after judicial separation he is obviously either neglecting her or refusing to do so. The finding of desertion by the wife in granting a decree for judicial separation is, therefore, of no consequence in proceedings under Section 125 of the Code, initiated after the decree for judicial separation is granted as the decree itself is sufficient reason for the wife not to live with her husband after it is passed. 2

Defence The Code is complete on the topic and any defence against an order passed under Section 125, Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Sections 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties 1

2

Prakash Chandra Verma vs. Prakashwati @ Krishna Devi, I (1983) DMC 454 All. Prakash Chandra Verma vs. Prakashwati @ Krishna Devi, ibid.

Summery remedy—Delay in making claim

333

can hold good as a valid defence. A statutory order can ordinarily be demolished only in terms of the statute. 1 One of the grounds on which a wife’s claim for maintenance allowance under Section 125 of the new Code would be defeated is if a wife refuses without sufficient reason to live with her husband. It seems to me that sufficiency of reason contemplated therein in a question of fact. But that is not to say that any and every reason or pretext put forth on behalf of a wife should be accepted in satisfaction of such a requirement. The cause shown must be reasonable and must have some relation to the health and safety of the wife. The section does not contemplate any reason, by way of inconvenience, hardship or such other, which is purely based on economic or financial grounds. The section further merely enacts an exception to the rule governing grant of maintenance under the main Clause of Section 125 of the Code new and does not expressly give any indication as to where the burden lay to establish, or to disestablish, such a fact. But going by the general principles of law, and especially when the said provision is viewed as an exception, to my mind, the burden of establishing it, lies on the husband who has been found by the Court to have deserted the wife as a matter of fact. But such proof may consist of admissions to be gleaned from the evidence adduced on behalf of the wife in support of her claim for maintenance allowance. 2

Delay in making claim Woman folk in our country are very modest and shy and a vast majority of them do not move out of their domesticity. They do not like to go in for litigation which is tiring, time consuming and expensive. A deserted wife may be able to sustain herself for sometime but when she reaches a breaking point and is no more able to bear the pangs of hunger and pennilessness she is entitled to approach the Court. Her right of claiming maintenance is a continuing one and the legislature has taken care by not providing any period of limitation for making an application under-Section 125 Criminal Procedure Code. 3 Section 125 Criminal Procedure Code has not restricted the period of limitation to claim maintenance. When the statute has not 1

2

3

Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: AIR 1979 SC 442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377: 1979(1) APLJ 31. Gurmit Kaut @ Pritam Kaur vs. Harjit Singh, II (1982) DMC 24 P&H. Ratan Lal vs. 2nd Addl . Session Judges, Mathura, I (1994) DMC 20 All.

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Law of Maintenance

prohibited any wife to claim maintenance with any period of limitation, the husband is not entitled to plead that she has waived her right to claim maintenance due to the long lapse of 10 or 12 years after she left his house. Due to the changed circumstances in her parents house, her parents may not be willing to maintain her and they may not be in a position to maintain her since other children have grown up and some other problems might have cropped up in her family. Under these circumstances, the petitioner is not entitled to raise the plea that the respondent has waived her right to claim maintenance after a long lapse of 12 years. 1 Delay simplicitor is no ground to reject the claim for maintenance because there is no limitation prescribed for making an application under Section 125, Cr.P.C. The true question that has to be considered is whether the delays shows the conduct of the claimant to waive her right to maintenance. 2

Determination by civil court A final determination of a civil right by a civil court must prevail against a like decision by a criminal court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite, under Section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. Secondly, this amount does not include the claim for maintenance of the children although the order does advert to the fact that the respondent has their custody. This incidental direction is no comprehensive adjudication. Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a higher maintenance. 3

Determination of paternity When there was no evidence to show that the mother of the minor-applicant was having sexual intercourse with any other person, it was held that when it was proved that she had sexual intercourse with the applicant alone, it cannot be said that the evidence led on behalf of the

1 2 3

Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP. Manohar vs. Usha, II (1985) DMC 267 Bombay. Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ 3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978 SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1.

Summery remedy—Dismissal in default

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non-applicant cannot establish the paternity of the minor-applicant vis-àvis the applicant. 1

Disentitlement to avail remedy See under the chapter 4 relating to ‘Disabilities depriving maintenance’

Dismissal in default Order 9, Rule 9, Civil Procedure Code, 1908 provides that where a suit has been dismissed for the plaintiff’s non-appearance even though the defendant had appeared when the suit was called for hearing, the plaintiff is not eligible to bring a fresh suit on the same cause of action but may apply to set aside the order of dismissal on showing sufficient cause for his non-appearance. The bar contemplated under the provision is a prohibition to bring a new suit on the same cause of action. On the face of it, the provision cannot apply to an application under Section 125, Criminal Procedure Code and hence even if a suit is dismissed for default and another suit on the same cause of action would be barred, yet an application under the Criminal Procedure Code statutorily provided for would not suffer from any disqualification. 2 In the case of Raju vs. State, 3 it was held that in view of the provisions of Section 362 of the Criminal Procedure Code, 1973 the Court’s power to alter or review its judgment or order, through which a case is finally disposed of was limited only to the correction of clerical or arithmetical errors. It had no other power to recall its own judgment or order or set it aside in exercise of its inherent powers. Again, earlier in the year 1980 vide the case of Shymta vs. Dangra, 4 the Court was dealing with a similar application under the old provision of Section 488 Criminal Procedure Code. It was a wife’s maintenance petition and it was specifically held that the court had no power to restore it if it had been dismissed for default. It was also observed that Section 488 Criminal Procedure Code contemplates only on situation in which the restoration of an order passed under that provision of law can be made and it is only when an ex parte order has been passed against a husband. Reference was made to the case of Krishna Rao Palne vs. Pramila Bai, 5 and it was held that the Magistrate had no power under Section 561-A to order restoration. The inherent powers were possessed only the by the 1 2 3 4 5

Chandrakumar vs. Shailendrakumar, II (1985) DMC 350 Bombay. Rabindra Biswal vs. Hemalata Biswal, II (1989) DMC 418 Orissa. 1982(19) ACC. 138. 1980(17) ACC 14. 1976 Cr.LJ. 1819.

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powers High Court and even if the proceedings under Section 488 Criminal Procedure Code are quasi judicial in nature, that will not mean that the Magistrate can get all the powers of the Civil Court. Reliance was also placed on the case of Hakimi Jan Bibi v. Mouza Ali, 1 in which a Division Bench of Calcutta High Court had held that the law does not empower the Magistrate to hear an application for maintenance under Section 488 Criminal Procedure Code dismissed for non-appearance. A similar point was considered by the Supreme Court 2 the Court held that so far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code a Magistrate cannot exercise any inherent, jurisdiction to restore the case. A second complaint is permissible in law if it could be brought within limitations imposed by the Supreme Court. 3 Filing of a second complaint in not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the Criminal Courts to exercise such inherent power. What the Court has to see is not whether the Criminal Procedure Code contain any provision prohibiting the Magistrate from entertaining an application to restore a dismissed complaint, but the basic task should be to find out whether it contains any provision enabling the Magistrate to exercise the inherent jurisdiction which he otherwise does not have. An earlier decision of the Supreme Court in earlier case, 4 was quoted and relied upon. This being the legal position, it was held that it is not open to the learned Magistrate to direct the restoration of the petition under Section 127 Criminal Procedure Code. 5 Keeping in view the benign provisions in Section 125 enacted to ameliorate economic condition of neglected wife and discarded divorces and to save enumerated persons from vagrancy and destitution, welfare laws must be so read as to be effective delivery systems of salutary objects sought to be served by the legislature. When beneficiaries are weakens sections like destitution woman, spirit of Article 15(3) of the Constitution must be light meaning of Section 125 and its sister clauses

1 2 3

4 5

2 Cr.LJ. 213. Maj. Gen. A.S. Gauraya v. S.N. Thakur, AIR 1986 SC 1440. Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876. Bindeshwari Prasad Singh vs. Kali Singh, AIR 1977 SC 2432. Pramod Kumar Mittal vs. Kanchan Devi, I (1988) DMC 289 All.

Summery remedy—Divorced wife

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and provisions must receive compassionate expansion of sense that the words used permit. With these observations it was observed as under: ‘Two decades of litigation has not been sufficient to weaken the spirit with which parties have been litigating. The fact that interim maintenance was granted by the learned Judge, Family Court, shows existence of prima facie material regarding entitlement of the appellant during pendency of the proceeding. The reason advanced by the appellant to justify her nonappearances does not appear to be so absurd and unreasonable as to warrant outright rejection. A party does not gain by not attending the Court on the date fixed. Unless a callous and negligent attitude is borne out from record, a liberal attitude has to be adopted when a party shows cause for no appearance. A rigidistic approach while dealing with cause of non-appearance in a case for maintenance under Section 125 of the Code is likely to frustrate the very purpose for which the provision was enacted. Any hair splitting of facts situation would not further ends of justice. True it is, the Court has to be satisfied about justifiable reason for non-appearance. But such matters cannot be weighed in golden scales. On the scales of justice and equity, the balance learn heavily in favour of the appellant. therefore, we set aside the order of learned Judge. Family Court rejecting the application for restoration.’ 1

Divorced wife Explanation (b) appended to Section 125 Criminal Procedure Code lays down that a ‘wife’ includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Subclause (4) will also be clearly application to her case and she will have to show that she is not returning back to husband for sufficient reasons. Only then she will be entitled to maintenance till the time she remarries. A wife who has applied for maintenance under Section 125 is not disentitled to maintenance if she has not remarried, merely on account of the fact that the husband has obtained a decree of divorce or a decree for judicial separation on the ground of desertion. It was observed:— “Under Section 125(1)(a) a person having sufficient means is under an obligation to maintain not only his wife but also his divorced wife who has not remarried. The ground on which the decree for divorce was obtained is immaterial. Thus even though the decree for divorce was obtained by the husband on the ground of desertion of the wife he is required to maintain the divorced wife under Section 125(1)(a). Similarly, the finding of desertion by the wife in granting a decree for judicial separation is no consequence in proceedings under Section 125 initiated after the 1

Aruna Kar vs. Sarat Dash Nachhi, I (1993) DMC 153 Orissa.

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decree for judicial separation in granted as the decree itself is sufficient reason for the wife not to live with her husband after it is passed.” 1 In case of Bai Tahira vs. Al Hussain Fissalli Chothie, 2 the effect of Explanation (b) to Section 125(1) of the Code was considered and it was held that it was clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the Code. In another case of Sayead Mukhtar Ahmad vs. Smt. Moonia Fatma, 3 the observation was to the effect that once the husband divorces his wife or the wife obtains a divorce from her husband she becomes entitled to claim maintenance from ex-husband provided she is unable to maintain herself and the husband has neglected to maintain her. Her right to claim maintenance would come to an and only if she remarries or lives in adultery or if she voluntarily surrenders her right to maintenance. 4 Therefore, the matter rests here and it has been held that a divorced wife is also entitled to maintenance provided she is unable to maintain herself and the husband in neglecting her to do so and she has not remarried or surrendered her right or is not living in adultery. 5 In all those case where the husband has divorced his wife, it will be assumed that the wife is not living separately by mutual consent. On the same logic the divorced wife can not be held to be living separately ‘without sufficient reason’. Clearly therefore, condition Nos. (2) and (3) are not attracted in cases where the husband has divorced the wife. Can a different conclusion be reached where the wife and not the husband, has obtained divorce? No personal law has, so far, given such a right to the wife and hence such cases, if at all, can arise only under the statutory laws. In all statutes, whether it be the Hindu Marriage Act, 1956 or any other law, the right given to the wife to obtain a decree for divorce is limited and is available only when the husband treats her with cruelty etc. Unless the husband is held guilty of delinquency, no court would grant divorce to the wife. In all such cases, the right of the wife to receive maintenance under Section 125 of the Code would remain intact and would not be defeated under Sub-section (4) thereof. Indeed Subsection (4) of Section 125 of the Code would not be attracted in cases where the wife obtain a decree of divorce on proof of husband’s 1 2 3 4 5

Prakash Chandra Verma v. Smt. Prakashwati, 1983 ALJ 766 AIR 1979 SC 363. 1981 ACC 224. Shanti Devi v. Basant Lal, 1984 (21) ACC105. Madhusudan Misra vs. State of U.P., I (1988) DMC 525 All.

Summery remedy—Divorced wife

339

delinquency. In this view of the matter, it was held that a divorced wife is not living separately with the husband ‘by mutual consent’ and would therefore be entitled to receive maintenance under this provision. 1 Mere divorce does not end the right to maintenance. 2 Claim for maintenance under the first part of Section 125, Criminal Procedure Code is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125, Criminal Procedure Code. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce n the ground of desertion by wife but she was held entitled to maintenance allowance as a divorced wife under Section 125, Criminal Procedure Code and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. 3 The Allahabad High Court also took a similar view. These decisions were approved as representing the correct legal position. 4 The wording used by the Legislature is not a woman against whom a decree of divorce was obtained by her husband but the woman who has been divorced by her husband. If the Legislature had wanted to include a woman against who a decree of divorce is obtained by her husband, the Legislature would have used the appropriate phraseology to cover such woman as done in the second limb of the explanation to cover the case of a woman who herself obtains divorce from her husband. The fact that different phraseology has been used for the first limb of Explanation (b) would mean that Legislature never intended to include woman against whom decree of divorce was obtained by her husband from a Court of Law proving some fault on the part of the wife. The words used by the Legislature in the said explanation would not justify different interpretation. On the contrary, the words are very clear which do not include a woman whose marriage has been dissolved by decree of divorce at the instance of her husband. If the interpretation which was placed by some of the Courts is accepted so as to include woman against 1 2

3 4

Atjunlal Thawait vs. Shashikala, I (1990) DMC 158 MP. Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal, AIR 1978 SC 1807: 1978(4) SCC 70: 1978(3) SCR 782: 1979 MLR 30. Sukumar Dhibar vs. Anjali Dasi, 1983 Crl.LJ. 36 Rohtas Singh vs. Ramendri, I (2000) DMC 338 SC: 2000(3) SCC 180.

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whom divorce was obtained by her husband from a Court of Law, it would certainly lead to a very anomalous situation. If such a woman against whom decree of divorce was obtained by the husband is included in the extended definition of the wife under Section 125(1) of the Code of Criminal Procedure it would mean that the woman who was wrongdoer or was guilty of desertion or cruelty against her husband would be entitled to claim maintenance after a decree of divorce is passed against her, though undisputedly, she would not be entitled for maintenance before such divorce was granted by virtue of Sub-section (4) of Section 125 of the Code of Criminal Procedure. To hold that a woman against whom a decree of divorce was obtained by the husband is entitled for maintenance; would go not only against the express words of Explanation (b) to Section 125(1) of the Code of Criminal Procedure but also would create an anomalous situation as pointed out above. Happily the Legislature itself has taken care to see that such incongruous position does not arise by using appropriate phraseology. 1 When a decree for divorce has been passed, whatever be the reasons for the passing of the decree, the divorced wife has statutorily been conferred a power to claim maintenance from her ex-husband, subject to other conditions fulfilling, under section 125, Criminal Procedure Code. The clear language in that regard is available in part (b) of the Explanation appearing under Section 125, Criminal Procedure Code. It has specifically been provided therein that the wife includes a divorced wife. Her claim to maintenance could only be negatived if she had received some compensation for maintenance from her husband. 2 Sub section (4) does not apply to divorced wife therefore there can be no question of her living in adultery or refusing to live with husband without sufficient cause. Therefore a wife who had been divorced by mutual consent, is also entitled to maintenance. 3 In the case of Captain Ramesh Chander Kaushal vs. Veena Kaushal, 4 a question arose ‘whether maintenance allowance under 1

2

3 4

Bhagwan Raoji Dale vs. Sushma @ Nanda Bhawan Dale, 1999(1) HLR 579 Bombay. Raj Kumari vs. Rajinder Lal Mehta, II (1985) DMC 126 P&H; Ameer Amanullah vs. Padikkaru Manaim Beevi, II (1985) DMC 220 Madras; Prakash Chandra Verma vs. Prakashwati @ Krishna Devi, I (1983) DMC 454 All; K. Shanmukhan vs. G. Sarojini, I (1983) DMC 477 Kerala; Khem Chand Kataria vs. Shakuntala Devi, II (1983) DMC 201 Delhi; Shahzadi Begum vs. Mohd. Abdul Ghaffar, II (1982) DMC 171 AP. Vanamala vs. H.M. Ranganatha Bhatta, 1995 (5) SCC 299 AIR 1978 SC 1807

Summery remedy—Divorced wife

341

Section 125 Criminal Procedure Code can be at the rate higher than the rate at which interim maintenance is granted in divorce proceedings pending in a Civil Court?’ The question was answered in the affirmative and after considering the scheme and purpose of Section 125 Criminal Procedure Code in the concluding paragraph and it was observed: “We have been told by S.T. Desai that the divorce proceeding terminated adversely to his client but an appeal in pending. If the appeal ends in divorce being decreed, the wife’s claim for maintenance qua wife comes to an end and under Section 127 of the Code the Magistrate has the power to make alterations in the allowance order and cipherise it. We make the position clear that confusion should breed fresh litigation.” Later on noting a patent error which unfortunately crept in the above observations, the legal position was clarified after hearing both sides and a new paragraph was substituted in place of the above paragraph with the following observation: “The last paragraph in the judgement concludes with the statement—‘If the appeal ends in divorce being decreed, the wife’s claim for maintenance qua wife comes to an end under Section 127 of the Code, the Magistrate has the power to make alterations in the allowance order and cipherise it.” The judgment would seem to indicate that once divorce is decreed the wife ceases to have any right to claim maintenance and that such an impact can be brought about by an application under Section 127 of the Code. It is clear that this conclusion contradicts the express statutory provision. The advocates on both sides agree that this is a patent error and further agree that the law may be correctly stated and the contradiction with the statute eliminated. Therefore, we direct that in substitution of the last paragraph, the following paragraph will be introduced: We have been told by Shri S.T. Desai that the divorce proceeding has terminated adversely to his client but that an appeal is pending. Whether the appeal ends in divorce or no, the wife’s claim for maintenance qua wife under the definition contained in the Explanation (b) to Section 125 of the Code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. We make the position clear that mere divorce does not end the right to maintenance.” The italicised portion should remove doubt if any on the true legal position on the question involved. 1 Where a divorce had taken place between the parties and the parties were living separately because of the divorce, it cannot be said

1

Shrawan vs. Sau. Durga, II (1988) DMC 89 Bombay.

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that they are living separately by mutual consent as husband and wife and, therefore, the applicant is disentitled from receiving maintenance. Though the definition of wife by virtue of Explanation-B to Section 125(1) includes a woman who has been divorced by or has obtained a divorce from her husband and has not re-married in the very nature of thing, in Sub-section 4 of Section 125, the word ‘wife’ so for as the question of living separately by mutual consent is concerned, cannot be said to include a divorce wife also. Reading in the proper context, a wife who has been divorced by her husband, or has obtained a divorce from her husband and has not remarried, is by the very fact of divorce, has to live separately from her husband, she is not expected at all to live, with her husband and, therefore, the question of her living separately by mutual consent does not arise. Consent to live separately is required only when there is an obligation to live together. When the obligation to live together itself has come to an end, living separately on a divorced couple cannot be said to be living separately by mutual consent for the purpose of Sub-section 4 of Section 125 disentitling the divorced wife from claiming maintenance. The very purpose of the Explanation B to subsection (4) of Section 125 of the Cr.P.C. shall be defeated it a divorced wife is expected to live or in taken to be living separately from her husband by mutual consent. The harmonious construction of the two provisions can only be that a divorced wife shall not be deemed to be living separately from her husband by mutual consent, she has to be taken to be living separately from her husband under the compulsion of failure of her marriage which is acknowledged by the decree of divorce. 1

Dropping of proceedings Neither Section 244, nor Section 245 Criminal Procedure Code can be made applicable to proceedings under Section 125 Cr.P.C. Section 244 and 245 Cr.P.C. apply to the cases tried for criminal offences and that is a general procedure applicable to all such category of cases instituted otherwise than on a police report. But, a special procedure is carved out in so far as Section 125 Cr.P.C. proceedings are concerned. It cannot be equated to private complaint so that theory of Section 244 and 245 Cr.P.C. can be imported. In fact, for Section 125 Cr.P.C. proceedings, a separate and specific procedure has been formulated and provided under Section 126 of Cr.P.C. The Magistrate trying a maintenance case under Section 125 Cr.P.C. shall follow the procedure contemplated only under Section 126 Cr.P.C. and not otherwise. Under Section 126 Cr.P.C. either application of Section 245(1) Cr.P.C. or even the analogy of the same cannot be pressed into service. Procedure under 1

Molyabai vs. Vishram Singh, II (1992) DMC 33 MP.

Summery remedy—Effect of Act of 1986

343

Section 126 Cr.P.C. will not approve any such action by the Magistrate to drop the proceedings without taking the evidence. The evidence to be taken is both, oral and documentary and the said procedure cannot be dispensed with. 1 In the above case, the Court of Magistrate adopted a very strange policy of hearing the arguments advanced on behalf of the parties merely basing on some documents filed by the respondent. It was held that such a procedure is unknown to Section 125 Cr.P.C. proceedings. It was further observed as under: ‘In fact, it is apt to state that the Magistrate has adopted shortcircuit method to terminate the proceedings and in that process succumbed to the dilatory tactics of the 1 st respondent to avoid the enquiry and to circumvent the orders previously passed this Court on 30.1.1992 dismissing the quash proceedings. The 1 st respondent cannot avoid the enquiry and he has to face the same. There is no option for the Magistrate, but to take the evidence both, oral and documentary, hear the arguments and pass a reasoned order on merits.’ 2

Effect of Act of 1986 A plain reading of the Muslim Women Act would show that it has provided a particular procedure to be followed by a Magistrate while dealing with an application under Section 125 Criminal Procedure Code by a divorced Muslim lady and the procedure is almost a time bound programme. Under Section 7 of the Act, every application by a divorced woman under Section 125 or 127 of the Code of Criminal Procedure, 1973 (2 of 1974), pending before a Magistrate on the commencement of this Act, had been directed to be decided and disposed of in accordance with the provisions of that Act. It would in effect means that where the proceedings are pending before a Magistrate on the date of enforcement of the Act they would be disposed of according to the provisions of that Act and for that disposal the provisions of the act would over ride the provisions of the Code of Criminal Procedure. Under Section 3 of the Act, the provisions have been made for recovery of maintenance for the period of date or the return of dowry and payment of dower within a short time. That time can not be obtained again. If there have been no payment of dower or return of articles of dowry because at that time they were all redundant for the purposes of maintenance all that cannot be done now. It would be only after the return of those articles that the provisions of Section 4 (payment of maintenance) would be applicable, 1 2

Sahira Banu vs. Shaik Basheer Ahmed, I (1996) DMC 382 AP. Sahira Banu vs. Shaik Basheer Ahmed, ibid.

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and therefore, the provisions of this Act would not be available. Not only this, after the enactment of this under Section 5 therefore, the parties could have had an option to convey before the Magistrate as to whether they would like to be governed by the provisions of Section 125 to 128 of the Code of Criminal Procedure. 1

Effect of custody of children It is very likely that the wife may be insisting that the custody of the children should be with her, while she wants to live separate from the husband for her own reasons. But that does not mean that the husband has neglected or refused to maintain them. In the absence of any cogent evidence to show that the children were also neglected and refused to be maintained by the husband, no order of grant of maintenance can be made under Section 125 of the Code of Criminal Procedure. 2 When it was not the case before the Trial Court that the children were driven out by the husband and for which he has never bothered to pay the maintenance or has neglected them, it was held that no case has been made out by the wife on behalf of her children to seek entitlement of maintenance on behalf of the children. 3

Effect of divorce Claim for maintenance under the first part of Section 125, Criminal Procedure Code is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125, Criminal Procedure Code. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. 4 The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to maintenance allowance as a divorced wife under Section 125, Criminal Procedure Code and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. 5

1

2 3 4

5

Syed Akbar Ali vs. Session Judge, Moradabad, II (1991) DMC 626 All. Raj Bahadur Sinha Singhel vs. Sona, II (1984) DMC 41 Bombay. Raj Bahadur Sinha Singhel vs. Sona, ibid. Rohtas Singh vs. Ramendri, I (2000) DMC 338 SC: 2000(3) SCC 180. Sukumar Dhibar v. Smt. Anjali Dasi, 1983 Crl.LJ. 36.

Summery remedy—Effect of Section 24 of Hindu Marriage Act

345

The wording used by the Legislature is not a woman against whom a decree of divorce was obtained by her husband but the woman who has been divorced by her husband. If the Legislature had wanted to include a woman against who a decree of divorce is obtained by her husband, the Legislature would have used the appropriate phraseology to cover such woman as done in the second limb of the explanation to cover the case of a woman who herself obtains divorce from her husband. The fact that different phraseology has been used for the first limb of Explanation (b) would mean that Legislature never intended to include woman against whom decree of divorce was obtained by her husband from a Court of Law proving some fault on the part of the wife. The words used by the Legislature in the said explanation would not justify different interpretation. On the contrary, the words are very clear which do not include a woman whose marriage has been dissolved by decree of divorce at the instance of her husband. If the interpretation which was placed by some of the Courts is accepted so as to include woman against whom divorce was obtained by her husband from a Court of Law, it would certainly lead to a very anomalous situation. If such a woman against whom decree of divorce was obtained by the husband is included in the extended definition of the wife under Section 125(1) of the Code of Criminal Procedure it would mean that the woman who was wrongdoer or was guilty of desertion or cruelty against her husband would be entitled to claim maintenance after a decree of divorce is passed against her, though undisputedly, she would not be entitled for maintenance before such divorce was granted by virtue of Sub-section (4) of Section 125 of the Code of Criminal Procedure. To hold that a woman against whom a decree of divorce was obtained by the husband is entitled for maintenance; would go not only against the express words of Explanation (b) to Section 125(1) of the Code of Criminal Procedure but also would create an anomalous situation as pointed out above. Happily the Legislature itself has taken care to see that such incongruous position does not arise by using appropriate phraseology. 1

Effect of Section 24 of Hindu Marriage Act The remedies under Section 24 of the Hindu Marriage Act and under Section 125, Cr.P.C. are not alternative but they are concurrent and optional to the party entitled to make avail of. They are remedial measures intended to alienate the hardship that may be caused to either spouse i.e., the applicant under Section 125 Cr.P.C. or the respondent under Section 24 of the Hindu Marriage Act. Therefore, the mere 1

Bhagwan Raoji Dale vs. Sushma @ Nanda Bhawan Dale, 1999(1) HLR 579 Bombay.

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possibility of availability of the remedy under Section 24 of the Hindu Marriage Act does not take away the power and jurisdiction of the Court under Section 125 Cr.P.C. to grant relief. 1

Effective date of modification Section 127(2) of the Code enjoins that where after an order for maintenance passed in favour of the wife under Section 125(2) of the Code, the husband obtains a decree necessitating the cancellation of the order, the Court shall cancel or vary the order. The legislature under Section 125(2) of the Code has given power to the Magistrate to date back the order of the application but does not give any such power under Section 127(2) of the Code. 2 In the case in Satteyya vs. Malsoor, 3 also it is held that the order of cancellation of maintenance always operates prospectively and not retrospectively. 4 Similar view is taken in some other cases. 5

Enforcement by imprisonment Imprisonment is a means of enforcement of payment, and an order for imprisonment can be passed, only, after there has been negligence to pay the maintenance. The material question to the considered is whether such an order of imprisonment can be passed without, at first, issuing the warrant for levying the amount due. It is no doubt true that the normal rule is, at first, to try to seek enforcement of the order by issuing the distress warrant in the manner provided in the Code for levying fines; but, this rule, is not mandatory, that is, to be necessarily followed in each and every case without considering the attending circumstances of the particular case. 6 Section 125 of the Code has been enacted with the object of enabling the helpless and deserted wife and children to secure the much needed relief. It has a special social purpose behind it to subserve the interest of the weaker sections of society i.e. the woman class. The husband, once the maintenance order is passed against him, cannot be allowed to play hide and seek by adopting delaying tactics and thus, 1

2 3 4

5

6

Ajjarapu Surya Sriramchandra Murthy vs. Ajjarappu Tejo Satyasathimani, I (1984) DMC 406 AP; C.M. Mani vs. Esther Pachikara, I (1983) DMC 409 Kerala. J.H. Amroon vs. Miss R. Sassoon, AIR 1949 Cal 584. AIR 1959 Hyd. 53. Balraj Singh vs. Balkar Singh, II (1983) DMC 159 P&H; Ismail Kasam Khokhar vs. Khatun Alarakha, II (1983) DMC 216 Gujarat. Bhagat Singh v. Smt. Parkash Kaur, 1972 PLR 952 and Ved Parkash v. Smt. Chanchal Kumari, 1980 PLR 304. Bhure vs. Gomatibai, I (1982) DMC 20 MP.

Summery remedy—Enforcement by imprisonment

347

make the life of his deserted wife, miserable and reckless for want of necessary amount to feed herself and her children, if any. The law must subserve the social purpose and the subtle technicalities of law cannot be allowed to stand in the way of help and succour which the wife is entitled to receive by speedy means through the agency of the Court. 1 Section 125(1) opens with the words “if any person having sufficient means neglects or refuses the maintenance” and Sub-section (3) of Section 125 provides that “if any person so ordered, fails without sufficient cause to comply with the order”. Reading these two expression together, it is obvious that the power under Section 125(3) of the Code would be exercised and the husband could be detained in jail provided it is established that at the time of passing the order he has means to pay and still he declines to comply with the order. Unless the Magistrate records the finding that the petitioner has means to pay and still declines to pay, the petitioner could not have been ordered to be detained in jail. 2 In one case it was submitted that under Section 125(3), in the first instance a warrant to levy the amount as fine should be issued and the sentence of imprisonment could be passed only if the amount remains unpaid after the execution of the warrant. Section 421 Criminal Procedure Code, 1973 provides the procedure for issuing a warrant for levy of fine. In this case, no such warrant were issued but the order of the learned Magistrate showed that the husband who appeared in the Court in response to a notice issued in a miscellaneous petition admitted that the amount has not been paid and he also had a representation to make. Under these circumstances, it was held that no useful purpose would have been served by issuing warrant. 3 However it was observed that in the first instance, a warrant of attachment of the moveable and immoveable properties must be issued to satisfy the arrears of maintenance and if after the execution of the warrant, the whole or any part of the arrears remains unpaid, then and then alone imprisonment of the defaulter can be ordered by the Magistrate. The words “for the whole or any part of each month’s allowance remaining unpaid after execution of the warrant” in Section 125(3) of the Code, will have no meaning if it was the intention of the legislature that even without recourse to a warrant of attachment a warrant for imprisonment could be issued. The issue of warrant of attachment of property is a condition precedent to the issue of a warrant 1 2

3

Bhure vs. Gomatibai, I (1982) DMC 20 MP. Abdul Afif Puddan Ansari vs. Jubedabai, II (1982) DMC 448 Bombay. P. Ataullah vs. Memunisa Begum, II (1984) DMC 448 AP.

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to imprisonment. The warrant of arrest directed to be issued without first having issued a warrant of attachment of property is illegal. 1 Section 488 (3) dealing with the enforcement of the order of maintenance only provides that the Magistrate may “for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines……..” “Hereinbefore provide” means the procedure laid down for warrants for levy of fine under Chapter XXVIII of the Cr.P.C. relating to execution. That only means that the amount under order for maintenance is realizable only in the manner provided for levying fines. That does not make the maintenance a fine within the meaning of either the Indian Penal Code or the Criminal Procedure Code. It is only realizable in the manner fines are realized. Therefore, section 67 I.P.C. cannot limit the right of the Magistrate to pass the sentence under Section 488 (3) Cr.P.C. to pass a sentence other than simple. On the other hand section 53 under Chapter III of the Indian Penal Code in describing the punishment mentions under the fourth head “Imprisonment which is of two description, namely (1) rigorous, that is with hard labour; (2) simple”. If that is in the dictionary provided by the Statute itself, the word “imprisonment” may mean either simple of rigorous as the case be, and unless the language of the section either by expressly or by most compelling necessity limit the type of imprisonment then the right to pass an order of sentence cannot be limited and may be either simple or rigorous. 2

Enforcement of order Section 67 of the Indian Penal Code begins with the significant expression “If the offence be punishable with fine only”. A violation under Section 488 (3) of the Code of Criminal Procedure 1898 is not an “offence punishable with fine only” within the meaning of that expression. Indeed it is not an “offence” in the sense understood in the Indian Penal Code or under the Criminal Procedure Code, 1898. Section 488 really is a speedy way of providing for the maintenance of neglected wives and children under Chapter 36, Criminal Procedure Code. From that point of view it was held that it was strictly not an offence within the meaning of section 67 of the Indian Penal Code. 3 If an offer is made to maintain a wife by the husband on condition of her living with him and the wife refused to live with him, 1

2

3

Amarjit Kaur @ Ajmer Kaur vs. Baldev Singh, II (1982) DMC 426 P&H. Moddari Bin vs. Sukdeo Bin, AIR 1967 Cal 136 (DB): 70 Cal WN 686: 1967 Cri LJ 335. Moddari Bin vs. Sukdeo Bin, ibid.

Summery remedy—Enforcement of order

349

the Magistrate has to consider grounds of refusal stated by her. If the Court is satisfied that there is just ground for so doing, the Court may, in spite of such offer made by the husband, make an order regarding enforcement. It is, therefore, evident that the Magistrate has got to make an inquiry when such offer is made. No doubt, it will be for the husband to show that there was sufficient cause for non-compliance with the order. The burden will lie on the husband to prove sufficient cause. Thus, the Magistrate must hold an inquiry as to sufficiency of the cause shown by the husband and he cannot order the issue of a distress warrant without satisfying himself as the sufficiency of the cause shown. 1 An order for maintenance remains in force unless it is cancelled by the Magistrate in appropriate proceedings under sub-section (5) of Section 488 of the old Code. The mere fact that after the passing of such an order, the parties had lived together and resumed cohabitation for a few months, does not make the order inexecutable. 2 However in another case it was held that it would not lie in the mouth of such husband to say that even after he has given divorce, he is prepared to take his wife back and prepaid to maintain her if she is prepared to stay as his wife because she has not accepted the divorce. Any reasonable and prudent man in such sets of circumstances will refuse to ask the wife whether she is willing to go with her husband or not end if she is not ready and willing them on what ground she is not ready and willing? Because when the answer is so obvious that any woman would not like to go and stay with such a husband who has already given her divorce and had driven her our with the clothes put on by her. Therefore, it was held that the learned Magistrate is not required either to hold an inquiry or to call upon the wife to ascertain whether she is ready and willing to go to her husband’s house or not and if she is not ready and willing to go to her husband’s house, then why she is not prepared to go to her husband? 3 The second question arises in the matter is that when she, herself filed a Recovery Application and in the same if the husband comes with such type of lame excuses and defences that he wants to take back his wife, only with a view to avoid payment of maintenance, in such case the learned Magistrate is not required to call upon the wife to assert from her whether she is ready and willing to go to her husband or not? Such type 1

2

3

Nileshkumar Rameshchandra Dhruv vs. State of Gujarat, I (1991) DMC 280 Guj. I.D. Singh vs. Prabha Singh, AIR 1967 P&H 374: 1967 Cri LJ 1050. Gani Ali vs. Savabai Gani, I (1993) DMC 238 Guj.

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of inquiry or exercise by the learned Magistrate is contemplated in cases where once the learned Magistrate has awarded maintenance and thereafter some special further development has taken in the matter and the circumstances have been changed, and if the husband comes out with a bona fide offer to maintain his wife on condition of her living with him in such cases only and if the Magistrate is satisfied, that the wife is required to say whether she is ready and willing to stay with her husband in the changed circumstances. But before that the Magistrate has to see that the husband was regularly paying the maintenance amount which is awarded against him till the date on which the comes out before the Magistrate with her offer to maintain his wife on condition of her living with him. Second proviso to Sub-section (3) of Section 125, Cr. P.C. does not provide that in each and every case, the learned Magistrate has to hold an inquiry. It all depends upon the facts and circumstances of the case. In each the learned Magistrate has to come to his own conclusion that whether he should call upon the wife when the offer is made by the husband to maintain his wife on condition of living with him and if he is satisfied that in the case before him, the wife is required to be called upon then only he has to call upon the wife to state that she is willing to stay with her husband or not. If the wife refuses to live with her husband, then the learned Magistrate has to consider the ground of refusal stated by the wife and thereafter the learned Magistrate has to pass an appropriate order. Second proviso to Sub-section (3) of Section 125 Cr. P.C. itself also provides that notwithstanding such offer made by the husband to maintain his wife, on condition of her living with him, the learned Magistrate can pass such order under Section 125 Cr. P.C. 1

Ex parte order The Family Court exercising the jurisdiction under Section 7(2)(a) of the Family Court Act in a petition filed under Section 125 of the Criminal Procedure Code, 1973 for maintenance, on being satisfied that there is a prima facie case for maintenance and it is necessary to pass ex parte order of maintenance has the jurisdiction to pass ex parte order of interim maintenance. Such interim order can also be revised on being requested by the respondent by filing an application. Such an order of maintenance shall always be subject to the final adjudication on the main petition. 2

1 2

Gani Ali vs. Savabai Gani, I (1993) DMC 238 Guj. G.L. Jagadish vs. Shamantha Kumari, I (1990) DMC 552 Kar.

Summery remedy—Ex parte order

351

On a plain interpretation of sub-section (2) of section 126 made in Smt Sulochana Sahu vs. Baman Ch. Sahu, 1 it has been observed as under:— “Thus the sum and substance of the principle of law is that if that person against whom and order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting at attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Before proceeding to hear and determine the case ex parte, a specific order has to be recorded by the Magistrate to the effect that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court. An ex parte order of maintenance may be set aside for good cause shown on an application made within the period of limitation subject to such terms including terms as payment of costs.” It is clear and mandatory on the part of the Judicial Magistrate to record the evidence of the proceeding under Section 125 of the Code in the presence of the person against whom an order for payment of maintenance is proposed to be made or in the presence of his pleader if he is exempted from personal appearance and has been permitted to be represented by his pleader. The exception to the above rule finds in the proviso below it. If the Judicial Magistrate finds that the person against whom an order for payment of maintenance is proposed to be made is wilfully neglecting to attend the court, in that event, he may proceed to hear and determine the case ex parte, but before doing so the Judicial Magistrate must record his satisfaction that the person is wilfully neglecting to attend the court. 2 In one case the personal attendance of the petitioner/nonapplicant had not been dispensed with by the court. That being so, it was held that it was the responsibility and duty of the petitioner to be present in court. The court under the relevant provision of Section 125 of the Code had already issued, the first notice for his appearance and in response to that the petitioner had appeared. Thereafter, sending of any notice whatsoever is neither contemplated under Section 125 of the Code nor there is any provision, whatsoever, for sending such notices in the entire Criminal Procedure Code. Even in a case where there is a death of a party, there is no provision to send any notice whatsoever to the heirs

1 2

1986(1) OLR 558 Biswanath vs. Susama Devi, I (1988) DMC 43 Orissa.

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Law of Maintenance

of the deceased. Such provisions are only available in the Civil Procedure Code. 1 Before proceeding to hear and determine the case ex parte, the Magistrate has to apply his mind to the question whether the opposite party is wilfully avoiding service or wilfully neglecting to attend Court and be satisfied that there has been such wilful conduct on the part of the opposite party. The Magistrate cannot proceed ex parte without arriving at such satisfaction. It is desirable for the Magistrate to pass a formal order recording such satisfaction and giving reasons for such satisfaction. However, the condition precedent for proceeding ex parte is the satisfaction based on reasons and not the formal order. The satisfaction must be discernible from the circumstances evident from the record. There is a conflict of opinion among various High Court on the need for a formal order. We think that the more informed view is that a formal order is desirable, but the absence of a formal order would not vitiate the order or the proceedings, so long as the record evidences circumstances which show the existence of reasons to satisfy the Magistrate on this score and which imply such satisfaction. 2

Ex parte order & inherent powers Under Section 125 the person who is proceeded ex parte has the remedy to apply to the magistrate that for a stated good cause he was unable to appear and that the ex parte order may be set aside against him. If the party does not follow that remedy provided by the Code the power under Section 482 is not to be resorted to because there is a specific provision in the Code for the redress of the grievance of the aggrieved party. Power under Section 482 has to be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice. 3 It a party makes an application to the Magistrate for setting aside the ex parte order and he does not accede to the request the party may file a revision under Section 397 and also invoke the powers of High court under Section 482 because he can well content that there has been a denial of justice to him because his application for setting aside the ex parte order has wrongly been rejected. 4

1 2

3 4

Sardar Harvindar Singh vs. Amrit Kaur, II (1983) DMC 364 Patna. Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238 Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker 479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All Cri LJ 224. Makhdum Ali vs. Nargis Bano, I (1983) DMC 40 Delhi. Makhdum Ali vs. Nargis Bano, ibid.

Summery remedy—Finding of Civil Court

353

When the husband chose not to take this remedy, exercise of the inherent powers was declined for following two reasons: ‘One that the remedy under Section 126 has not been pursued. Secondly the husband’s conduct throughout the proceedings over a period of nearly three years has not been meritorious. He has been appearing, disappearing and reappearing in the case at his will and pleasure. In a word his behaviour is not deserving of meritorious consideration.’ 1

Finding of Civil Court Section 127(2) does not require that the order of the civil court should be subsequent to the order of the Magistrate. The sub-section will apply even where the order of the civil court is antecedent but was brought to the notice of the Magistrate later on. It is urged on this basis that if an order made under Section 125 of the Code has got to be varied or cancelled in consequence of a decision of a competent civil court, then such an order can not should not be made at all. In respect of Section 488 of the Repealed code 9the predecessor of Section 125), it was observed 2 that the Magistrate’s jurisdiction to settle maintenance is only auxiliary to that the civil court: ‘The order to the Magistrate under Section 125 of the Code is a summary order. The Magistrate cannot usurp the jurisdiction in matrimonial disputes possessed by the civil court and the provisions Chapter IX (New) of the Code are subjected to any final adjudication made by a civil court between the parties regarding status and civil rights.’ 3 Desertion has not been defined in the Hindu Marriage Act. Essence of desertion is forsaking and abandonment of one spouse by the other without reasonable cause and without consent and against the wish of the other. It is a total repudiation of obligation of marriage. When the Matrimonial Court decreed the suit for divorce on the finding that the wife has deserted the petitioner for a continuous period for more than two years it has to be accepted that she refused to live with her husband without any sufficient reason. The question therefore was if this finding 1 2 3

Makhdum Ali vs. Nargis Bano, I (1983) DMC 40 Delhi. Raghubar v. Emperor, AIR 1915 Oudh 113. Sethurathinam Pillai vs. Barabara and Dolly Sethurathinam, 1971 (3) SCC 923: 1970 CAR 245: 1970 UJ 505: (1970) 1 SCWR 589; See also Bhagwan Dutt vs. Kamala Devi, 1975 Mad LJ (Cri) 81: 1974 Pun LJ 495: 1975 (2) SCR 483: 1975 (2) SCC 386: AIR 1975 SC 83 : (1974) 2 SCWR 469 and Venkayya v. Paidanna AIR 1923 Madras 707 relied in Kuldeep Kumar vs. Chander Kanta, I (1984) DMC 48 Delhi.

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of the Matrimonial Court was binding on the learned Magistrate while dealing with an application under Section 125 Cr.P.C. It was observed: ‘The factor to be considered by the learned Magistrate in dealing with an application under Section 125 are those which are prevailing at least on the date of the order. As it a appears the suit was decreed on 14-1-1983. The impugned order under Section 125 was passed on 5-10-85. Therefore on the date of order there was no obligation on the part of the wife to live with her husband. Accordingly Sub-section (4) of Section 125 will have no application in the facts of the instant case. It is true that even though the husband has obtained a decree of divorce against the wife on the ground that she refused to live with him without any sufficient reasons even then he will have to suffer an order under Section 125 Cr.P.C. The erring party in such cases even though the wife, the husband has to maintain her for no fault of his own. Since Section 125 Cr.P.C. was meant to prevent destitution and vagrancy. Even in such a case the wife will be entitled to an order. Section 125 (1) has provided that the wife includes a woman who has been divorced by or has obtained a divorce, from her husband and has not remarried. Accordingly, the expression “wife” for the purpose of Section 125 includes a divorced woman and the ground of divorce is not a matter for consideration.’ 1

Finding of Cruelty In one case it was found that if the evidence of the husband is read as a whole, it becomes clear that he never wanted to admit nor has be admitted that he was beating his wife. He only wanted to show that he was willing to keep her on any terms. He was even wiling to stay separately from his parents if that was the desire of the wife. He also showed his willingness to execute any type of writing if that would satisfy his wife. Therefore, his willingness to keep her after executing a writing that he would not beat her cannot be said to be an admission on his part that he was in the past beating his wife. It also appears that the learned Magistrate was not inclined to give due importance to the admission made by the father of the applicant that it was the husband who had brought wife on scooter to his house and he left her there. The learned Magistrate held that her version that she was beaten and driven out from the house is quite consistent with the circumstance that her husband had taken her to her father’s house on a scooter. It was observed:

1

Biswanath Saha vs. Sikha Saha, II (1986) DMC 321 Calcutta and Goswami Babupuri Shankarpuri vs. Bhawatiben, II (1983) DMC 29 Gujarat relied in Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai, I (1986) DMC 103 Gujarat.

Summery remedy—Formal application

355

‘It appears that the learned Session Judge in view of these two infirmities in the judgment of the learned Magistrate thought it fit to re-appreciate the evidence and record his own findings. It cannot be said that the learned Session Judge has committed any error in re-appreciating the evidence and recording his own finding in view of the aforesaid infirmities in the judgment of the trial court. That which was regarded as an admission cannot be regarded as the admission of beating nor is it possible to believe the version of the appellant that she was beaten and driven out from his house is consistent with the circumstances that it was her husband who had brought her on a scooter to her father’s house and left her there. The learned Session Judge after reappreciating the evidence on record, recorded a finding that it is not proved that she was beaten and driven away by the husband. That is finding of fact and unless it is shown that the finding is unreasonable this Court will not interfere.’ 1

Formal application The Section 126 opens with the words “Proceedings may be taken against any person.” The phrase “proceedings may be taken against any person” is very important. It does not indicate that the proceedings be taken on an application being filed by a person who claims maintenance. Either Section 125 or Section 126 does not contemplate any formal application to be filed by any person whomsoever. In a given case the attention of the learned Magistrate may be drawn by some welfare institution or by any public spirited social worker that a helpless wife or the helpless children or parents as the case may be are being neglected by a person who is otherwise bound to maintain them under the law and that such person is neglecting and refusing to maintain them. On such information being received the learned Magistrate himself may draw a memorandum of the information received by him and may direct the office to treat such memorandum of information as an application for maintenance. On such memorandum which is treated as an application he can issue a notice against the person, liable to provide maintenance. There is nothing in the Code to show that such a procedure cannot be adopted by the learned Magistrate. This view is in consonance with the basic object underlying the provisions for providing maintenance. The basis object is to prevent vagrancy by compelling a person to support his wife or child or father or mother unable to support himself/herself. Another principal object is to device speedy summary remedy for providing maintenance. When such is the benevolent object underlying the provisions of maintenance, ‘Setan’ of technicality cannot be allowed 1

Dhanlaxmiben Anilkumar Padhiar vs. Anilkumar Chaturbhai Padhiar, II (1986) DMC 311 Gujarat.

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to stand in the way of dispensation of justice. The halpless lunatic cannot be asked to wait indefinitely or to wait till next birth. If that be so, the entire provision of Section 125 to 128 would become a dead letter of law. 1

Fraudulent marriage Where consent to a marriage has been obtained by force or fraud, such a marriage is invalid unless ratified after the coercion has ceased or the duress has been removed, or when the consenting party being undeceived, has continued the assent. 2 In this case, it was found that the material on record was totally short coming to any finding either on the question of force or fraud. The respondent’s own case on oath in the proceedings had been that petitioner was his wife. It was therefore held that the present proceedings would, therefore, have to be considered as decided on the assumption that respondent and petitioner are husband and wife of each other. It was however clarified that the above construction was placed only in the extremely limited context of a summary proceeding for maintenance under Section 125 of the Code of Criminal Procedure. It was held that nothing stated or observed in the proceedings can in the least affect the rights and liabilities of either of the parties in any matrimonial proceedings as such instituted by one against the other. If any such proceedings are instituted the same will have to be decided on their own merits and in accordance with law irrespective of the observations made in summary proceedings and irrespective of the order passed in the present proceedings. 3

Illegitimate marriage For a woman claiming maintenance under Section 488, Criminal Procedure Code it is essential for her to establish that she was the wife of the opposite party in accordance with the provisions of the personal or the Civil law applicable regarding the marriage between the parties. It follows, therefore, that what is contemplated by the term ‘wife’ referred to in Section 488, Criminal Procedure Code is legally wedded wife in accordance with the Personal Law of the parties or the Civil Law governing the marriage between the parties. It would not, therefore, cover the case of a women whose marriage with the respondent is void 1

2

3

Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai, I (1986) DMC 103 Gujarat. Meharunnishabai vs. Andul Razak Mohammed Ayub, II (1983) DMC 306 Bombay. Meharunnishabai vs. Andul Razak Mohammed Ayub, ibid.

Summery remedy—Illegitimate marriage

357

ab initio being in contravention of the personal or the Civil Law governing their marriage. A woman would be deemed to be a wife for the purpose of this section to be that woman who is a legitimate wife by reason of a valid marriage according to the law governing the parties. It the legislature had intended to give the benefit of this section for the grant of maintenance to all such woman who were not legally wedded wives but otherwise married to the respondent, then no distinction could have been made between the wife and the child, held entitled to claim maintenance by making a reference of entitlement to “legitimate or illegitimate child.” It becomes very clear from the expression used in the second part thereof were a reference is made to “legitimate or illegitimate child” who can claim maintenance under Section 488(1) of the Code. The legislature was clear in its mind to apply this provision in respect of child either legitimate or illegitimate born of a woman neglected or refused to be maintained by his or her father. If it was intended to include any illegitimate wife, the legislature could have said so, just as it said in respect of children. It was held therefore, that no illegitimate wife or a woman claiming to be the wife whose marriage is ex facie illegal can claim any maintenance under this section. 1 If it is held that any woman who has solemnized the marriage with the respondent would be deemed to be a wife for the purposes of this section, the same would amount to doing violence to the provisions of Section 488, Criminal Procedure Code and would also lead to disastrous results which would be against the public interest and the social object sought to be achieved by making a provision attaching sanctity to the institution of marriage. Law cannot be interpreted in a manner which leads to immorality by permitting the woman to lead immoral life with the hope that if subsequently deserted, they would be entitled to claim maintenance for leading immoral life with the man. 2 Taking a contrary view it has been held that the husband is not without any remedy in that behalf. He is always at liberty to agitate and get the marriage cancelled if he thought it necessary under a regularly constituted suit or petition under the Hindu Marriage Act or any other law for the time being in force. The provisions under Section 125 are summary in nature, and provides for swift and cheap remedy against a person who deprives his wife or neglects or refuses to maintain her or his minor child, legitimate, or illegitimate, unable to maintain itself. Section 125 prescribes a summary procedure. The findings are not final and the parties are at liberty to agitate their rights in a civil court. The summary 1 2

Titroo vs. Mst. Morni, II (1988) DMC 162 J&K. Titroo vs. Mst. Morni, ibid.

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Law of Maintenance

procedure does not cover entirely the same ground as the civil liability of the husband or father or son under Personal Law to maintain his wife, child or parent. When substantial issue of civil nature are raised, the remedy lies only in civil courts. If that is so, there is no substance in the contention of the husband that the revisional court has not considered the legal issue involved in the case. The husband is not without any remedy and this case being one of summary nature and when the point, now raised, was not raised at the earliest point of time, this court would not entertain the said ground at this belated stage. 1 However the view of the Supreme Court is that the attempt to exclude altogether the personal law applicable to the parties from consideration should be repelled. The section 125 of Criminal Procedure Code, 1973 has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where applicant establishes her status on (or) relationship with reference to the personal law that an application for maintenance can be maintained. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. 2

Ingredients to be proved The wife is required to aver in the petition following things: (i) she is the wife of the non-applicant; (ii) that the non-applicant has sufficient means, yet he is refusing or neglecting to maintain her; and (iii) that she herself is unable to maintain herself. To attract the provisions of Section 125 of the Code, it is necessary to establish that a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. Subsection (4) of the said section provides that a wife who is living in

1 2

Siddalingappa vs. Yellabai, I (1983) DMC 278 Karnataka. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644: 1988(1) SCC 530: 1988 SCR 809: 1988(1) Scale 184: 1988(1) JT 193.

Summery remedy—Interference in inherent powers

359

adultery or without sufficient reasons refuses to live with her husband or if they are living separately by mutual consent, will not be entitled to receive any allowance from her husband. This provision provides a speedy remedy against starvation by way of a summary procedure. It is not co-extensive with the civil liability of a husband. It gives effect to the fundamental and natural duty of a man to maintain his wife. The basic idea behind this provision is that no wife should be left helpless so that she may be tempted to commit crime. This provision enables a magistrate to take summary action for prevention of destitution. 1 In one case there was abundant evidence that the parties were not residing together. There was evidence that the petitioner husband illtreated the wife and has been living with another woman. So, the wife had sufficient reason for not living together with the husband. It was held that all the requirements of Section 125 were fulfilled. 2 However it was found in one case that the Revisional Court had completely misdirected itself in considering the recitals in the application for maintenance filed by the wife under Section 125 of Criminal Procedure Code as well as the statements made by her in her deposition. The applicant in her deposition stated that “she was not doing any work and she was completely dependent upon her parents”. It was held that this statement clearly demonstrated that the applicant in no uncertain terms deposed that she did not have any means to maintain herself and it totally depending upon her parents for her maintenance. It was held that the Court completely misread the deposition of the applicant and further came to a wrong conclusion that the applicant had not specifically complied with mandatory requirement of Section 125 of Criminal Procedure Code, therefore, the impugned order was held to be misconceived and unsustainable in law. 3

Interference in inherent powers It is not for High Court to go through the whole case over again or to find out whether this court could interfere with the findings on a different approach to the question which this Court may choose to make. Such an exercise would be uncalled for and beyond the scope of the power under Section 482. The Court should guard against such a situation and should not be tempted to interfere merely because, if the

1

2 3

Purnamasi Pradhan vs. Suresh Pradhan, I (1986) DMC 79 Orissa; Nasimbanu Minor Girl Through Fatmaben vs. Yusufbhai Ismailbhai Munshi, I (1985) DMC 90 Gujarat. Edul Zamina vs. Shekila Begum, II (1986) DMC 290 Calcutta. Bhagirathibai @ Bhagwati vs. Ashok, II (1999) DMC 429 Bombay.

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Law of Maintenance

court has occasion to go through the evidence afresh perhaps it may choose to take a view different from that taken by the court below. 1 Where right of maintenance to a woman is denied on untenable grounds, quashing such an order can be considered the object of securing the ends of justice within the meaning of Section 482 of Criminal Procedure Code. 2 The wife in order to claim maintenance from her husband has to prove that her husband, having sufficient means, has neglected or refused to maintain her and further that she was unable to maintain herself. The ingredients of Section 125(1) Criminal Procedure Code, which the wife has to prove is the neglect or refusal on the part of the husband to maintain her and further that she is unable to maintain herself. In the instant case, there is dispute regarding the fact the petitioner/husband has neglected or refused to maintain the respondent/wife. There is also dispute regarding the fact that the respondent/wife is unable to maintain herself. Till the respondent/wife proves these ingredients against the husband and shows that she has legal and justifiable reasons for living separately from her husband and that she is unable to unable to maintain herself, the petitioner/husband would be required to pay maintenance to her till the reasons for separate living disappear and the husband is willing to keep his wife with him. The ingredients of Section 125(1) Criminal Procedure Code are dependents upon proof of the allegations contained in the petition. Undoubtedly, Section 397(3) Criminal Procedure Code bars a second revision filed by the same person, who has already availed the remedy of a revision before the Sessions Judge. There is also no dispute about the fact that the bar of Section 397(3) Criminal Procedure Code cannot be overcome merely by filling an application under Section 482 Criminal Procedure Code if in substance and reality the intention of the party is to file a second revision. In case the learned Additional Session Judge while dealing with the revision has not decided the revision according to law, then this Court can certainly intervene under its inherent powers under Section 482 Criminal Procedure Code. 3

Interim maintenance The proceeding under Section 125 Criminal Procedure Code are of a summary nature. They are for the protection of deserted wife, minor 1 2

3

M. Chandran vs. B. Jagadamma, II (1982) DMC 174 Kerala. Vemulapalli Rajanikumar vs. Vemulapalli Sarath Babu, II (2000) DMC 199 AP. Kulwant Singh Bhullar vs. Sukhwant Kaur, 1999(1) HLR 155 P&H.

Summery remedy—Justification to live separately

361

children, mother or father and to save them from starvation. When the learned Magistrate himself found that the petitioner was adopting delaying tactics in disposal of the case, it was held that Magistrate himself should have awarded the interim maintenance to the mother, irrespective of the fact whether such application was made or not. 1

Interpretation Section 125 Cr.P.C., having a social purpose, its various clauses in their interpretation must receive a compassionate expanse by the Court in its generous jurisdiction, a broader perspective and appreciation of facts and their bearing on essential ingredients must govern the ultimate verdict not chopping little logic or tinkering with the niceties of interpretation and technicalities of law. 2

Irregularity in recording evidence Section 465, Criminal Procedure Code is clear on the point that the form must not override the substance and such error in procedure, even if any, is curable unless it has resulted in failure of justice Section 465(2) Criminal Procedure Code lays down the test about the failure of justice: it has been pointed out that even such objection could and should have been raised at an earlier stage in that proceedings and had not been raised it shall be presumed that there was no failure of justice; since such objection was never raised on behalf of the revisionist in the court below so this irregularity even, if any, is not sufficient to reverse the impugned order. 3

Justification to live separately When the petitioner has made a false allegation of adultery in the written statement, this itself constitutes mental cruelty to the wife even though physical cruelty as such has not been found proved. 4 If the false allegation of unchastity has been made with a view to defeat the wife’s genuine claim of maintenance or to defame her before the public, it will certainly give a reasonable ground for woman to refuse to go with her husband and still to claim maintenance. But if it has been 1

2 3 4

Monoharlal Mulchand Gandhi vs. Savitaben Mulchand, I (1994) DMC 352 Gujarat. Gafoor Ahmad vs. Amnabai, II (1986) DMC 389 MP. Moti Lal vs. Lal Mani, II (1984) DMC 159 All. Jarinaben Jafarbhai Ajmeri vs. Jafarbhai Abdulbhai Ajmeri, II (1985) DMC 415 Gujarat; Subhashchandra vs. Vimla, I (1985) DMC 496 MP; Urmila Devi vs. Ravi Prakash, II (1984) DMC 339 Delhi; Madan Mohan Maity vs. Rita Rani Maity, II (1982) DMC 1 Calcutta.

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Law of Maintenance

made not by any such motive but under pressing circumstances and with the aim of getting back the wife from the possession of others, and further if the husband recants that allegation and is sincerely willing to keep the woman with him, there will be no justification for the woman within the meaning of Section 488, Criminal Procedure Code to refuse to go with the husband. 1 The crucial date for ascertaining whether a wife is entitled to live separately and maintenance is the date on which the Magistrate passes the order. The Magistrate is required to take into consideration the facts and circumstances existing on that date. In this case it was found that even assuming that the wife was in the wrong in leaving the husband, still on the date when the Magistrate passed the order, she was entitled to live separately because of the action of the husband in contracting second marriage. The husband contracted second marriage during the pendency of proceedings under Section 125 of the Code. Once the husband contracted the second marriage then the first wife was entitled to live separately. Therefore it was held that whatever may have transpired earlier, that loses all its relevance when on the date of the order passed by the Magistrate the husband had contracted second marriage. 2 The separate living must be the result of a deliberate and express agreement between the parties. A hasty rejoinder to a husband, who in the course of a quarrel was manoeuvring for a consent from a wife, is not a consent within the meaning of the section. Similarly, living separately under an agreement settled by a panchayat to whom disputes between the husband and wife had been referred is not living separately by mutual consent. “Mutual consent” as used in sub-section (4) means a consent on the part of the husband and wife to live apart, no matter what the circumstances may be. Where a wife refuses to live with the husband on some specific ground such as cruelty, or the fact that he is keeping another wife, it cannot be said that the husband and wife are living apart by mutual consent if the husband does not insist that the wife should live with him. Where a husband is unwilling to allow his wife to live him, or has taken a second wife, the only course open to such wife would be to live apart and if she, under such circumstances agreed to accept maintenance and live apart, such separate living would not be deemed to be the result of mutual consent. The test therefore should be to find out if 1

2

Prabhawati Devi vs. Radhey Shyam Tripathi, AIR 1965 All 598: 1965 (2) Cri LJ 705 (2). Mustafa Shamsuddin Shaikh vs. Shamshed Begum Mustafa Shaikh, I (1991) DMC 34 Bom.

Summery remedy—Legitimacy of child

363

the agreement for separate living and payment of maintenance was the outcome of the desire of both parties, independently reached by each of them, or if one of the parties was forced to submit by circumstances to such agreement. Where the wife is not prepared to live in a separate house but insists on living with the husband, but he starts living separate, or where the husband having an option to live with his wife chooses to live separate, it cannot be said that they are living separately by mutual consent. But where each party finds it impossible to live amicably and comfortably with the other and each party and there is consent that they should live separately, the separate living is by mutual consent. If the Court finds that the husband and wife are living separately by mutual consent, no order can be passed under the section, as the Criminal Court is not intended to be used for creating facilities for separation between husband and wife or for fixing alimony. 1

Legally wedded wife The term “wife” appearing in Section 125(1) of the Code means only a legally wedded wife. 2

Legitimacy of child The questions whether the one claimant was the married wife of the respondent and whether the other claimant was the legitimate or illegitimate child of the respondent, are pre-eminently questions of fact. When the learned Magistrate after considering the evidence, as adduced by the parties, held that the appellant No. 1 was not the wife of the respondent and he further held on the basis of the evidence on record that the appellant No. 2 was the illegitimate child of the respondent; after considering the evidence on record it was held that the learned Judge of the High Court committed an error in making a re-assessment of the evidence and coming to a finding that the appellant No. 2 was not the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. 3 On the sole ground that the child had been born in about 7 months’ time after the marriage it cannot be concluded that the child should have been conceived even before the consummation of the 1

2

3

Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi, AIR 1965 Manipur 49: 1965 (2) Cri LJ 785. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, II (1982) DMC 434 Bombay. Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986(1) Scale 603: 1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj LJ 788.

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Law of Maintenance

marriage. Giving birth to a viable child after 28 weeks’ duration of pregnancy is not biologically an improbable or impossible event. It was held that the learned Judge had completely lost sight of Section 112 of the Evidence Act, lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. 1 If the wife was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the husband would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the wife or reported the matter to the village elders and relatives and sought for a divorce. On the contrary, in this case, the respondent had continued to lead life with the appellant in a normal manner till the birth of the child. Even the confinement appears to have taken place in his house as otherwise the child’s birth would not have been registered in his village. The husband had not disowned the child immediately after its birth or sent away the wife to her parents’ house. It was held that such would not have been his conduct if he had any doubt about the paternity of the child. Moreover, there was an entry in the birth register setting out the respondent as the father of the child. Though the husband attempted to neutralise this entry by examining a witness and making it appear that the entry had been made on the basis of information given by a third party, the lower Courts refused to give credence to the vague and uncorroborated testimony of this witness. It is also significant to note that the husband had allowed eleven months to pass before effecting a divorce. It was held that by his inaction for such a long period the husband had given room for inference that the divorce 1

Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR (SC) 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237: 1987 All WC 627.

Summery remedy—Limitation for enforcement

365

may have been effected for other reasons and not on account of the wife giving birth to a child conceived through some one else. It was also held that even if the child had been born after a full-term pregnancy it has to be borne in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving in close terms. All these factors negate the plea of the respondent that the minor child was not fathered by him. In these circumstances it was held that the proper course for the High Court, even if entitled to interfere with the concurrent findings of the Courts below in exercise of its powers under Section 482, Cr.P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full-fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings under Section 125, Cr.P.C. are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. 1

Limitation Section 125 Criminal Procedure Code has not restricted the period of limitation to claim maintenance. When the statute has not prohibited any wife to claim maintenance with any period of limitation, a party is not entitled to plead that claimant has waived her right to claim maintenance due to the long lapse of 10 or 12 years after she left his house. 2 In this case it was held that it was possible that due to the changed circumstances in her parents house, her parents may not be willing to maintain her and they may not be in a position to maintain her since other children have grown up and some other problems might have cropped up in her family. Under these circumstances, the husband was held not entitled to raise the plea that the wife had waived her right to claim maintenance after a long lapse of 12 years. 3

Limitation for enforcement If the maintenance amount is directed to be paid from the date of its order, an application made under Section 125 (3) Criminal Procedure Code within one year from such date of grant for realisation of 1

2 3

Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237: 1987 All WC 627. Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP. Golla Seetharamulu vs. Golla Rathanamma, ibid.

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Law of Maintenance

maintenance amount so granted is well within the period of limitation contemplated by the first proviso to Section 125 (3) Criminal Procedure Code it is only in cases where the order directs payment of maintenance from the date of application under Section 125(1) Criminal Procedure Code the question arises as to whether the petition under Section 125 (3) Criminal Procedure Code for realisation of the maintenance amount granted is barred for the period beyond one year, though the petition is filed within one year from the date of grant of maintenance. Section 125(1) pre-spouses existence of a right to seek maintenance whereas Section 125 (3) contemplates an order granting maintenance. In the absence of an order granting maintenance, there does not lie a petition under Section 125(3) in as much as there is no maintenance amount due for being realised. Maintenance amount becomes due if only an order is made granting maintenance. It is from such date on which it became due that the period of one year as contemplated by the proviso to Section 125(3) has to be reckoned. The expression used in the proviso is ‘within a period of one year from the date on which is became due’. In Stroud’s Judicial Dictionary 1, the term ‘Due and payable’ is referred to mean liability in respect of which there had to be payment. In another case 2 the word ‘due’ was interpreted to mean that dividends are due under the Income Tax Act when they became payable and not at the time they are declared. So much so, the term ‘becomes due’ under the Income Tax Act means 3, a dividend became due on the day it was declared payable and not at the time it was first announced. In Law Lexicon the word ‘Due’ is given the meaning as an existing obligation, an indebtedness a debt ascertained and fixed though payable in future, and owing and unpaid. According to Bourvier’s Law Dictionary ‘due’ means what ought to be paid, what may be demanded. Thus, it was held 4 that the maintenance amount becomes due only after it is ascertained and fixed by the Court and payable on a date later to such grant. The right to seek maintenance under Section 125(1) is thus quite distinct and different from the right to realise the maintenance amount under Section 125 (3) after it became due.

1 2 3

4

5th Edition Potel vs. IRB (1990) TR 325 as interpreted in (1971) 2 All ER page 504 between the same parties Takkelapally Laxmamma vs. Takkelapally Rangaiah, II (1991) DMC 628 AP.

Summery remedy—Limitation for enforcement

367

The Court is empowered to grant maintenance either from the date of its order or from the date of application for maintenance. This power would get rendered nugatory if the past maintenance is limited to one year in terms of the first proviso to Section 125(3) Criminal Procedure Code. The Section as a whole has got to be given a harmonious reading. The interpretation sought to be given by the Public Prosecutor to the first proviso to Section 125(3) Criminal Procedure Code by limiting the power under Section 125(2) Criminal Procedure Code, to one year instead of ‘from the date of application for maintenance’ was held to amount to permitting a self contradictory reading to Section 126 Criminal Procedure Code. 1 Section 125 is a beneficial provision intended to help the wife being saved from destitution in a case where the husband neglects or refuses to maintain the wife and, therefore, ordinarily, a liberal interpretation to the said provision can be given, but not at the cost of violence to the express language used in the provision. The proviso to sub-section (3) of Section 125 of the Code is clear and categorical terms puts an embargo on the power of the Magistrate to issue any warrant for recovery of the amount due unless the application is made to the Court within a period of one year from the date on which it became due. Therefore, the Magistrate has a duty to find out the date on which the amount become due. 2 The order of the Magistrate in this case granting maintenance was dated 26-4-1978. The matter remained pending in revision before the learned Section Judge for more than a year, but all the same it cannot be said that the amount in question was not due during that period. It was conceded before High Court that the learned Sessions Judge had not passed any order staying the operation of the Magistrate’s order. In that view of the matter, it was not possible to hold that the amount in question did not become due during the period the matter was pending in revision before the learned Session Judge. 3 Section 125 of the Code is designed to place the right to maintenance on the pedestal of a statutory right and thereby prevent destitution. It is in this back ground that the relevant provision has to be construed. The proviso is only to ensure that the person who has the order under Section 125(1) of the Code does not sleep over and allow the arrears to grow. It cannot certainly be construed as giving a technical 1

2 3

Takkelapally Laxmamma vs. Takkelapally Rangaiah, II (1991) DMC 628 AP. Bimla Devi vs. Karna Mulia, II (1985) DMC 200 Orissa. Bimla Devi vs. Karna Mulia, ibid.

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Law of Maintenance

defence to the defaulting husband to deprive the wife who has been vigilant and has come to the Court with an application for recovering the amount of arrears and for an order for the monthly allowance being regularly paid to her. The prayer for recovering the amounts as and when they fall due is implicit in the application. In the circumstances of the case, there was no need during its pendency to multiply applications for the purpose. Any fresh application would only have been in continuation of the prayer already made. 1 The first proviso to Sub-sec. (3) of Section 125 Cr.P.C. is clear and unambiguous. Acquiescence of the opposite party cannot confer jurisdiction on the Magistrate to enlarge the same. In certain circumstances, an application can be made for a period beyond one year, e.g., where a pending application has been closed for statistical purposes and fresh application is filed for the period covered by earlier application and the period subsequent thereto etc. 2 The provision has been enacted to prevent person in whose favour an order for maintenance has been made from being negligent and allowing the arrears to pile up so that their recovery becomes a hardship so far as the person from whom recovery is to be made is concerned. The Court does not enforce more than one year’s arrears. 3 Section 6 dealing with legal disability is applicable in view of Section 29(2) of Indian Limitation Act, 1963 as the application of Section 6 there of is not specially excluded under Chapter IX of Criminal Procedure Code. The minors are not sui juris and the mere fact that they can be represented by mother, father or other guardians is of no consequence. Section 6 of the Indian Limitation Act, 1963 keeps the limitation in abeyance if the person is a minor, insane or an idiot. In so far as the other order of maintenance under Chapter IX of Criminal Procedure Code is concerned, once a minor attains majority and if the said person after attaining of majority is not suffering from any mental or physical handicap, the maintenance order passed in his favour automatically disappears. Even then for arrears accrued by the time of his attaining the majority, petition can be filed within one year of the attaining of said majority. But, so long as the said minor does not attain the majority for the enforcement of the order of maintenance, there can be no fetter of limitation prescribed under the 1 st proviso to Sub-section 1

2

3

Loolnchand vs. Hemkanta, I (1986) DMC 431 MP: Bimla Dei vs. Karna Mulia, II (1985) DMC 327 Orissa. Hagiri Dei vs. Budhiram Behera, I (1982) DMC 332 Orissa: II (1982) DMC 193. Hagiri Dei vs. Budhiram Behera, ibid.

Summery remedy—Living separately by mutual consent

369

3 of Section 125 Criminal Procedure Code and the said provision has to be read down that the said limitation is only applicable to majormaintenance holders and not minor-maintenance holders. 1

Living in adultery In M. Kanniappan vs. Akhilanadammal 2 it was observed that a husband is absolved from obligation to maintain a wife living in adultery on the principle that when the wife has a ‘de facto’ protectorate then the obligation of the husband to maintain the wife ceases when it has been voluntarily assumed by some man other than the woman’s husband. This would be the position when the wife starts living with the one with whom she committed adultery and is being maintained as if she were his wife. As the obligation has been fastened on the husband to maintain a wife due to the anxiety of the Legislature to protect a deserted wife from the bitter necessity of earning a living by trading on their sex, that obligation would no longer exist if the same has been voluntarily assumed by some other man. 3

Living separately by mutual consent The expression ‘living separately by mutual consent’ occurring in the provision does not cover living separately due to divorce. In this case there was a decree of divorce based on mutual consent and this fact, even in the absence of pleadings, could be considered in the proceeding under Section 125 of the Code. It was held that the non-applicant being a divorcee, was under no obligation to live with the petitioner. 4 Where the parties were living separately by mutual consent, the wife was held not entitled to maintenance under Section 125 Criminal Procedure Code. It was further held that she may be entitled to maintenance under the Hindu Marriage Act or in an action for enforcement of the alleged agreement for maintenance but sub-section (4) of Section 125 which governs the whole of Section 125 including Sub-section (1) is a clear bar to her claim for maintenance. 5 Where the separate living proceeds from the common desire of the husband and the wife live separately whatever the reason for the desire may be, it is certainly by mutual consent. Where, therefore, since 1 2 3

4 5

Laxmi vs. Nakka Narauan Goud, I (1994) DMC 224 AP. AIR 1956 Madras 427. Saru Bala Medhi vs. Sudhi Chandra Medhi, II (1985) DMC 248 Gauhati. Krishna Kumar vs. Kiran, I (1991) DMC 248 MP. Amarendra Nath Bagui vs. Gouri Rani Bagui, I (1991) DMC 202 Cal.

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Law of Maintenance

the passing of the consent decree for judicial separation, the parties have been living separately by mutual consent the wife is not entitled to receive any maintenance under Section 488 Criminal Procedure Code (present Section 125) she may pursue such remedies as may be available under Hindu Marriage Act. 1

Locus standi of step mother The words “his mother” includes natural mother and not step mother. The right of the step mother in the coparcenary property does not justify her claim under Section 125, Cr.P.C. It has for this reason that no explanation was appended in this Section to show that even a step mother is included within the connotation of mother. 2

Major-child The Parliament in its wisdom has enabled only a minor child whether legitimate or illegitimate to claim maintenance under Section 125(1)(b) and only one exception has been made by enacting Sub-section (c) which enables the child which has attained majority to claim maintenance. That is a case where the child by reason of any physical or mental abnormality or injury is unable to maintain itself. 3 When it was not the case of any of the claimants that they have any physical or mental abnormality or injury on that account they are unable to maintain themselves, it was held that the case of claimants do not come under either Sub-clause (b) or (c) of Section 125(1) and the case of the 3 rd claimant subsequent to becoming major does not come under any of these Sub-section. 4

Modification of order Section 127 Cr.P.C. which is for alteration in the amount is completely different and for this Section 126 Cr.P.C. has no application. Section 127(1) Cr.P.C. provides that upon a proof of change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance in the allowance as he thinks fit. The words “the Magistrate” would mean the Magistrate who had passed the first order of maintenance, because this interpretation is strengthened by the fact that Section 128 Cr.P.C. which is the section for 1 2 3 4

Nathuram vs. Atar Kurwar, AIR 1969 All 191 Sarju Prasad vs. Damyanti, II (1984) DMC 251 All. L. Usharani vs. D.S. Lakshmaiah, I (1993) DMC 269 Kar. L. Usharani vs. D.S. Lakshmaiah, ibid.

Summery remedy—Modification of order

371

enforcement of the order of maintenance specifically provides that such petition under Section 125 Cr.P.C. may be presented before “any Magistrate”. Therefore, in these circumstances the petition under Section 127 Cr.P.C. will have to be filed before the Magistrate who has passed the first order of maintenance. 1 Although the Magistrate has jurisdiction to entertain a petition for alteration of maintenance allowance fixed under Section 125 even after a decree of Civil Court fixing the quantum of maintenance, the proper thing for the Magistrate to do is to refer the party to the Civil Court and not to proceed to decide the application in order to prevent conflict of decisions between two Courts of co-ordinate jurisdiction. The Magistrate will not be exercising his discretion judicially, if, without referring the parties to Civil Court, he proceeds to consider the altered circumstances with a view to alter the quantum of maintenance fixed by a binding decision of the Civil Court. 2 However mere pendency of the Civil suit in the matter of maintenance is no ground against the enforcement of an order of maintenance. Since the Civil Court is not sitting in judgment over the Magistrate, so as to decide if he should have made the order under Section 125, Criminal Procedure Code., the Court cannot entertain a suit for the relief that the Magistrate should not have passed the order, or that the order should be set aside, or that there should be an injunction upon the realizations under the order. 3 However the party could seek a declaration about the status of the parties, or a disqualification which, under the personal law of the parties, would disentitle the defendant to get maintenance irrespective of the Magistrate’s opinion in the criminal proceedings and armed with that declaration, he can approach the Magistrate under Section 127 (2) and get the order cancelled or modified, as the case may be so as to accord with the decision of a competent Civil Court. 4 In this regard the decision in Mailappa Chettiar vs. Sivagami Achi, 5 may also be seen. Sub-Section (3) of Section 127 provision which provides for the maintenance passed under Section 125 the three contingencies specified in 1 2 3 4 5

Criminal Procedure Code is a new cancellation of an order for in favour of a divorced wife under Clauses (a), (b) and (c). Under

G. Balraj vs. Mallamma, II (1984) DMC 232 AP. Nagendra Iyer v. Premavathi ,1973 Mad LW (Cri) 74. Mahbub Sultan vs. Qutub Din, 31 Crl LJ 770: AIR 1930 Lahore 230 Dahyalal Amathalal vs. Bai Madhukanta, 1965 (2) Crl LJ 497. 1964 (1) Crl. LJ 242.

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Law of Maintenance

Clause (a) if the Magistrate is satisfied that the woman has remarried after the divorce, the Magistrate has to cancel the order from the date of her remarriage. Clause (b) provides for cancellation of order from the dates specified in Sub-clauses (i) and (iii) where the divorced woman has received either before or after the date of order the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce. 1 It is not possible for the High Court to investigate whether the particular amount has or has not been received by the divorced wife or whether that was the sum which was to her payable under the personal law applicable to the parties. It is open to the former husband to approach the Magistrate for an order in terms of Section 127(3)(b)(ii). Clauses (c) provides for the cancellation of the order where the woman has voluntarily surrendered her rights to maintenance after her divorce. 2

Modification in revision It there was any change in the circumstances of the applicant after the passing of the order for maintenance the non-applicant has a right to submit an application under Section 127, Cr.P.C. to the Magistrate for the alteration in the allowance payable to the applicant. The Magistrate on proof of the changed circumstances is empowered to make such alteration in the allowance as he thinks fit under Section 127 of the Cr.P.C. In the absence of material before the Revisional Court it was held not justified in modifying the order passed by the trial Magistrate. 3

Multiple applications A reading of the procedure contemplated under Section 125 of Criminal Procedure Code does not prohibit a party from filing any number of maintenance petition seeking maintenance so long as the granting of amount does not exceed Rs. 500/- in favour of each of the petitioners. Code of Criminal Procedure, 1973 provides for filling of an application under Section 127 seeking alteration/modification of the 1 2

3

See Qayyum Khan vs. Noorunnisa Begum, 1978 Crl. LJ 1476. Manmonth Mohan Nath vs. Purnamasi Devi, II (1986) DMC 305 Gauhati; Mahadeo vs. Bhimabai, II (1986) DMC 315 Bombay; Kailashben Arvindkumar Joshi vs. Arvindbhai Ratilala Joshi, I (1985) DMC 414 Gujarat; Sudhangshu Sekhar Ganguli vs. State, I (1985) DMC 464 Calcutta; Mohanlal vs. Sau. Kamlabai, II (1985) DMC 322 Bombay; Mambakkattua Manu vs. Mambakkattu Vasantha, I (1984) DMC 425 Kerala; Dnyanoba Phirangoo Katore vs. Housabai, II (1983) DMC 133 Bombay; Doraisami vs. Vasantha, II (1986) DMC 258 Madras. Indrabai vs. Govindram Sharma, II (1984) DMC 175 MP.

Summery remedy—Multiple applications

373

order passed under Section 125 of Criminal Procedure Code. Therefore, it is open to the parties to seek appropriate modification as provided in terms of Section 127, but that provision ipso-facto is not an embargo for filling separate applications for maintenance as long as the granting of maintenance does not exceed Rs. 500/- per month as prescribed by the Code. 1 The order of maintenance granted pendente lite under Section 24 of the Hindu Marriage Act by its very nature last during the pendency of the main proceedings before the Court. Such a grant of interim maintenance in itself cannot be a ground for rejecting a petition filed under Section 125 of Criminal Procedure Code for maintenance. However, if passing of an order granting maintenance under Section 24 of the Hindu Marriage Act calls for any alteration of the quantum of maintenance allowed under Section 125 of Criminal Procedure Code or justifies its cancellation during the period of pendency of the main proceedings before the Family Court it is for the petitioner to approach the Court under Section 127 of Criminal Procedure Code for alteration in the maintenance ordered under Section 125, Criminal Procedure Code. 2 In another case the wife was getting only Rs. 175/- p.m. from the husband, who was a railway employee at the time of passing the order. Later he retired from service. Petitioner filed an application under Section 126, Criminal Procedure Code to enhance the rate of maintenance. That was dismissed. The wife was getting only Rs. 175/per month for maintenance which was not sufficient for her hand-tomouth existence. Considering the cost of living and price-hike, even the maximum amount provided under Section 125, Criminal Procedure Code itself is very low. The right to live is a fundamental right guaranteed under Article 21 of the Constitution of India. With the merger amount of Rs. 175/- p.m. she is not able to survive. Therefore, she filed petition claiming maintenance from her daughter who is an employee in the Accountant General’s office. The Court awarded only Rs. 200/- per month. Thus the total amount awarded comes to only 375/-. Petitioner was awarded Rs. 175/- p.m. in an earlier case considering the financial capacity of the husband and also the number of persons whom her husband has to maintain. Probably that may be the reason for rejecting the wife’s claim for getting enhanced maintenance. The wife is entitled to get maintenance from the daughter if she is employed. Therefore, in 1

2

Shiv Raj vs. IX Metropolitan Magistrate, Hyderabad, II (1995) DMC 1: I (1996) DMC 180 AP. Vallabhaneni Yedukondalu @ Karunakara Rao vs. Vallabhaneni Nageswaramma @ Karuna Kumari, II (2000) DMC 90 AP.

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Law of Maintenance

order to realise some more amount for her livelihood she is entitled to file a case against the daughter. 1

Multiple orders The order passed by the learned Magistrate with regard to maintenance under Section 125, Criminal Procedure Code shall be kept in abeyance so long the wife gets alimony pendente lite under Section 24 of the Hindu Marriage Act. The order made under Section 125, Criminal Procedure Code will become operative as soon as the order under Section 24 ceases to exist. 2

Necessity of proof of marriage A proceeding under Section 125 of the Code is of summary nature and that the intricacies of the law are not required to be gone into and that where the man and woman lived together as husband and wife and treated as such by the community and the man treated the woman as his wife, marriage between them has to be inferred for the limited purpose of Section 125 of the Code. 3 It is not necessary to have conclusive evidence of marriage under Section 125, Cr.P.C. to award maintenance to a destitute wife from her husband. After all, Section 125, Cr.P.C. “is a measure of social justice and specially enacted to protect woman and children” 4 Section 25 of the Hindu Marriage Act, 1955 empowers the Court exercising jurisdiction under the Act to make a provision for permanent alimony and maintenance at the time of passing of the decree or at any time subsequent thereto. That Section therefore clothes the Civil Court with the right of providing permanent alimony at the time of passing a decree for divorce. But, in this case, the petition for divorce filed by the husband was dismissed and the marriage was still subsisting. It was held that till the High Court reverses the decision of the Subordinate Judge, the marriage between the petitioner and the respondent continues to subsist. Therefore, it was held that it could not be said that the criminal

1 2

3

4

P.V. Susheela vs. Komalavally, I (2000) DMC 376 Kerala. Haridas Bhattacharjee vs. Suparana Bhattacharjee, II (2000) DMC 611 Calcutta. Anupama Pradhan vs. Sultan Pradhan, II (1991) DMC 618 Orissa relying upon Saudamini Devi vs. Bhagirathi Raj, 53 (1982) CLT 93: 1 (1982) DMC 333 Per U.L. Bhat, J. in Balan Nair vs. Valsalamma, 1986 Ker LT 1378 relied in K. Selvaraj @ Surendran vs. P. Jayakumary, II (2001) DMC 13 Ker (DB).

Summery remedy—Nullity Marriage

375

Court has no jurisdiction to entertain the petition filed under Section 125 Cr.P.C. 1

Non compliance Non-compliance of order to pay interim maintenance is not a situation envisaged to pass ex parte order. Specific provision for ex parte order having been made by Parliament, there is no scope for Courts to read into the provision something which is not consistent with the language of the said provision. Power to set a party ex-parte is not ancillary to exercise main power. Civil Courts might have jurisdiction in just cases to impose restriction on defaulting husband from contesting in exercise of inherent power. Such power has not been vested in criminal courts since inherent power is vested with High Courts only under Section 482 Criminal Procedure Code. Same principle is not possible to be applied to proceedings before Criminal Courts. Drastic power to take away the right to defend ought not to be invoked unless language of the statute does not envisage the same. 2

Nullity Marriage The wife as defined under Section 125 of the Code of Criminal Procedure continues to be wife and eligible for maintenance under Section 125 notwithstanding divorce. Dissolution of marriage as a sequel to divorce should not be equated to decree of nullity. Section 13 of the Hindu Marriage Act, 1955 is concerned with dissolution of marriage by a decree of divorce on the grounds enumerated therein. Section 15 permits either party to remarry again in the event of there being no right of appeal against decree, or time for appeal expired without any appeal having been presented, or appeal which has been presented has been dismissed. The proviso to Section 15 prohibits performance of marriage within one year from the date of decree for dissolution of marriage or divorce in the court of the first instance. Therefore the distinction between dissolution of marriage on divorce and nullity of marriage is clearly discernible. In the event of dissolution of marriage on divorce the remarriage by either party is intertwined by certain strings and conditions and the mere decree for divorce does not result in fanning the wings and getting away from the tie unless the conditions stipulated in Section 15 are fulfilled. In the event of a decree for nullity, the association of marriage is irrevocably terminated with immediate effect. The explanation under Section 125 of the Code relating to ‘wife’ is 1

2

B. Lokhanadhan @ B. Lokeshwara Rao vs. State, I (1992) DMC 1 AP. Jayaram Thkra @ Jhagara vs. Sabitrai Thakra, II (1991) DMC 594 Orissa.

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Law of Maintenance

solely confined to the situation of divorce only till remarriage and definition aimed at a singular situation cannot be stretched, associated or linked to nullity of marriage envisioned under Section 11 or Section 12 of the Act. 1 Section 11 of the Hindu Marriage Act specifically declares any marriage contravening any one of the conditions specified in Clauses (i) (iv) and (v) of Section 5 to be null and void and on a petition presented by either party to the marriage against the other will be declared by a decree of nullity. Clause (i) of Section 5 of the Hindu Marriage Act lays down that for a lawful marriage, the necessary condition is that neither party should have a spouse living at the time of marriage. Obviously, therefore, a marriage in contravention of this condition is null and void. If, therefore, the finding of the Subordinate Judge on the ex parte evidence of the petitioner is sustained, then the marriage between the petitioner and opposite party he held to be null and void. There is no doubt that the expression “wife” used in Section 125 of the Code means a legally married wife not covered by Section 11 of the Hindu Marriage Act. In this view of the matter, where a decree of annulment of marriage has been obtained, a Magistrate would be entitled to cancel an earlier order passed under Section 125 in exercise of his powers under Subsection (2) of Section 127 of the Code. 2 Under Criminal Procedure Code wife or divorced wife is entitled to claim maintenance. When the marriage is null and void as it had contravened Section 5(i) of the Hindu Marriage Act ex-wife is not entitled to claim maintenance from the respondent. Section 11 of the Hindu Marriage Act provides that any marriage solemnised after the commencement of the Act shall be null and void if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Act. A void marriage does not create any right and obligation which normally arise from a valid marriage. A reading of Section 125 Criminal Procedure Code, shows that a legally wedded wife or legitimate or illegitimate child could claim maintenance from the husband or the father when he having sufficient means neglects or refuses to maintain them. 3 Therefore if marriage is annulled wife is not entitle to maintenance under Section 125 Criminal Procedure Code. 4 Section 11 of the Hindu Marriage Act provides that any marriage solemnised after the commencement of the Act shall be null and void if it 1 2 3 4

K. Sivarama Krishna Prasad vs. K. Bharath, II (1985) DMC 505 AP. Purna Chandra Digal vs. Sila Digal, II (1989) DMC 12 Orissa. Moni vs. State, II (1987) DMC 133 Kerala. Thulasi Bai vs. C.V. Manoharan, I (1990) DMC 61 Kerala.

Summery remedy—Offer of re-union

377

contravenes any one of the conditions specified in Clauses (1) (iv) and (v) of section 5 of the Act. A void marriage does not create any right and obligation which normally arise from a valid marriage. 1 Under Section 125 of the Criminal Procedure Code wife or divorced wife is entitled to claim maintenance. when the marriage between the petitioner and the respondent is null and void as it has contravened section 5(1) of the Hindu Marriage Act petitioner is not entitled to claim maintenance from the respondent. 2 Karewa marriage is a nullity in the eyes of law and thus wife is not entitled to interim maintenance under Section 125 of the Code. 3

Offer of re-union An offer by the husband to keep the wife may be made before the application is filed. It may be made after the application is filed and before the order is passed. It may be made after the order is passed and during the enforcement of the order. It may be a conditional offer or it may be an unconditional offer. It may be bone fide or it may not be a bone fide offer. The offer can also be made after the order is passed, and such a contingency is contemplated in sub-s. (3) of Section 48 Criminal Procedure Code. For the purpose of sub-s. (4) of Section 488, Criminal Procedure Code it is not sufficient that there is a conditional offer, the condition being that the wife should behave well. If the husband tells wife that he is willing to take her if she behaves well, the wife as well can reply that she is willing to live with the husband if he behaves well. It is very difficult to see whether the condition has been fulfilled or not fulfilled. A conditional offer would not invite an application of sub-s. (4) of Section 488, Criminal Procedure Code. 4 Where the petitioner had during the proceedings, made a false accusation of adultery, the offer to take the wife back was not a genuine one and it was a device to evade the payment of maintenance and further that the aforesaid fact constituted a sufficient cause for the wife to live separately from her husband and a false accusation of adultery was a just ground for a wife declining to stay with her husband. 5

1 2 3 4

5

K. Moni vs. State, I (1987) DMC 36 Kerala. K. Moni vs. State, ibid. Dharam Singh vs. Chandro Devi, I (1994) DMC 111 P&H. Mohanlal Maganlal vs. Savitaben, AIR 1965 Guj 281: 1965 (2) Cri LJ 638: (1965) 6 Guj LR 876. Madan Lal vs. Smt. Rajni Bala, 1970 (72) PLR 12 (Del)

378

Law of Maintenance

In another case 1, in the petition under Section 428 of the previous Code of Criminal Procedure 1898, the husband made a formal application offering to keep his wife in his house and on that ground it was urged that the wife’s petition for maintenance should be dismissed, it was held as follows:— “…..The husband has at the stage of his evidence, as mentioned earlier, made an accusation of adultery against the wife and if on account of this accusation, which is denied by the wife and was not even contained in his reply, the wife declines to go and live with the husband, she is, in my opinion, amply justified in doing so. But this apart, the offer seems to me to be far from genuine and bona fide, and coming, as it does, only in answer to the present claim, it creates an impression of its being a mere device to avoid the liability of maintenance in these proceedings. Under Section 488(3) Cr.P.C. it is permissible to the Court to make an order of maintenance even if the husband offers to maintain his wife on the condition of her living with him, if the Court is satisfied that there is just ground for doing so. In the present case, I have no hesitation in holding that the wife has a just ground declining to live with the husband if he has no scruple in making the accusation of adultery against her on oath in Court.” 2

Order without evidence The learned Magistrate should have examined witnesses to come to the conclusion as to which of the parties had broken the terms of the agreement and only on consideration of the proper evidence he should have passed an order for the maintenance, that is, the order under Subsection (1) of Section 125 of the Code. 3

Paternity of child The object of Section 125 of the Code is to provide a summary remedy to save dependants from destitution and vagrancy and this is to serve a social purpose, apart from and independent of the obligations of the parties under their personal law. The right of the child legitimate or illegitimate under the Code is an individual right of the child in his or on her own right, independent of the mother. When a woman claims maintenance on behalf of a minor child out of wedlock against his alleged putative father, the onus is on her to show that the child could

1

2

3

Chander Parkash Bodh Raj vs. Shila Rani Chander Prakash, AIR 1968 Del 174 Ravinder Nath Sharma vs. Nirmal Sharma, I (1985) DMC 446 Delhi. Banshi Das vs. Jitni Debi, II (1983) DMC 198 Patna.

Summery remedy—Payment of cost

379

only have been born through the alleged father under the circumstances of an exclusive relationship. In such a case the woman being a highly interested person, the Court has a duty to see that her statement gets some independent corroboration, direct or circumstantial that the claimant could have conceived the child when she and the alleged father had access to each other. 1 Ratnavel Pandian J. has observed: 2 “To decide the paternity of the child it is prima facie improper to accept the mere statement of the mother, upon whom lies the burden to establish the paternity of the child. It is true that corroborative evidence is not usually forthcoming and therefore the Magistrate has to rely upon other corroborating circumstances if they are available. But at the same time it is not correct to say that unless the child is admitted by the putative father to be his illegitimate child, the Magistrate has no power to make an order for payment of maintenance. The basis of an application the maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. Therefore, it is the duty of the Court, before making the order, to find definitely though in a summary manner, the paternity of the child………… The burden of proof is not upon the father of the child in such cases. It is for the mother claiming maintenance to show that the child was born to the alleged father and the circumstances of the exclusive relationship.” In another case Anant Narayanan, J. 3 has also held as under: “No presumption of paternity can arise in a proceeding under Section 488, Cr.P.C. with regard to children born out of wedlock merely upon the entries found in certain birth registrar extracts where there is no evidence to show that the alleged father was the informant or that he gave some information constituting admission of paternity.” In one case, the child was born while the relationship of husband and wife between the petitioner and the first respondent subsisted. It was held that the presumption is that the child was born to the petitioner unless the contrary is established. 4

1 2 3 4

Ahalya Bariha vs. Chhelia Padhan, I (1992) DMC 453 Ori. Durairaju vs. Neela, 1976 LW (Cri) 113. Mahadeva Rao vs. Yasaoda Bai, 1961 MWN (Cri) 164. Udayakumar vs. R. Kalavathi, I (1985) DMC 430 Mad.

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Law of Maintenance

Payment of cost The words used in the proviso to Section 126(2), Criminal Procedure Code require the party on whom costs has been imposed by the order setting it aside to pay the same in cash if he wants to participate in the proceeding by contesting the application for maintenance made against him. The proviso for setting aside the ex parte decree to impose costs, which obviously has the purpose of compensating the party in whose favour the ex parte order had been made. Payment of costs under the proviso is, in fact, a condition precedent for availing the order setting aside the ex parte judgment given under Section 125, Criminal Procedure Code. The power to impose costs on the court has been given to a court for making payment of compensation. In this case an interpretation was canvassed that the amount could be realized only as fine is not acceptable on account of the language of the proviso not permitting the same. The language apart, the intention also of the legislature could not be that a party remaining absent may get ex parte order set aside and thereafter harass the applicant who has applied for maintenance under Section 125. By executing order of costs as provided by Section 421, Criminal Procedure Code the intention is that if costs are paid the proceedings under Section 125, Criminal Procedure Code could be gone into and the rights of the parties could be decided on merits. The proviso is that on payment of costs written statement could be filed. The purpose of the legislature can be achieved only if interpretation is that costs is to be paid in cash. It was therefore held that there was no substance in the submission that costs could be realized by resorting to the method of execution of an order under Section 125, Criminal Procedure Code or by availing Section 421 of the Code of Criminal Procedure. 1

Payment under personal law Section 127(3)(b) is telescoped into Section 125 and is to be read and understood as proviso to the latter Section. The dismissal of the application by the Court below was therefore correct, and calls for no interference. Even if Section 127(3)(b) were to be construed as an independent Section, it might require the entertainment of an application under Section 125 followed by a cancellation immediately thereafter under Section 127(3)(b) which only speaks of “a sum, which under the customary or personal law applicable to the parties, was payable on divorce”. This was held to be a clumsy and circuitous way of referring to the well known expression ‘maintenance’ which could certainly have been done it such was the legislative intent, in plainer and simpler, and 1

Kamla vs. R.L. Bilgainyan, II (1984) DMC 1 All.

Summery remedy—Pleading

381

more direct language. It was held that the sum referred to by Section 127(3)(b) need not be restricted to maintenance in the well understood sense of the term, but may cover any sum or amount payable on divorce under the customary or personal law of the parties. Therefore Section 127(3)(b) was held to be attracted. 1

Pecuniary jurisdiction Although what the section 125 of Criminal Procedure Code, 1973 plainly means is that the Court cannot grant more than Rs. 500/-for each one of the claimants. “In the whole” in the context means taking all the items of maintenance together, not all the members of the family put together. 2 If a woman has a dozen children and if the man neglects the whole lot and, in his addiction to a fresh mistress, neglects even his parents and all these members of the family seek maintenance in one petition against the delinquent respondent, can it be that the Court cannot award more than Rs. 500/- for all of them together? On the other hand if each filed a separate petition there would be a maximum of Rs. 500/each awarded by the Court. Therefore, this obvious jurisdictional inequity was refused to be read in the provision by reading a limitation of Rs. 500/- although what the section plainly means is that the Court cannot grant more than Rs. 500/- for each of the claimants. ‘In the whole’ in the context means taking all the items of maintenance together, not all the members of the family put together. This interpretation accords with social justice and semantics and, more than all, is obvious. 3

Pleading The law of civil pleading should not be rigidly and blindly applied to a case under Section 125 Cr.P.C. if there is no specific pleading regarding inability to maintain, the same can be gathered from the evidence and circumstances of the case. 4

1

2

3 4

Kamalakshi Vasantha Kumari vs. Sankaran Sadasivan Trivandrum, AIR 1979 Ker 116 (FB): 1979 Ker LT 5: ILR (1979) 1 Ker 148: 1979 Cri LJ (NOC) 113: 1979 Mad LJ (Cri) 325. Captain Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ 3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978 SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1. Captain Ramesh Chander Kaushal vs. Veena Kaushal, ibid. Ramayan vs. Tapiya, I (1986) DMC 313 All; See also Shuamapada Banerjee vs. Reba Banerjee, II (1984) DMC 172 Calcutta; Sant Kaur vs. Gurmukh Singh, II (1984) DMC 417 P&H; Kewaldas

382

Law of Maintenance

In Santosh Kumari vs. Jaswant Rai, 1 that the absence of the plea that wife was unable to maintain herself will not be fatal to the grant of the relief under Section 125 of the Code of Criminal Procedure. It has then been held in Smt. Munni Devi vs. Sri Om Pal, 2 that a wife’s claim in her application for maintenance a under Section 125(1)(a) of the Code of Criminal Procedure on the ground that she was unable to maintain herself could not be refused on the ground that she did not lead evidence in proof of the fact that she was unable to maintain herself where she had raised a plea to that effect in her application which was not controverted at any stage by her husband. 3 In one case, in the written objection the petitioner had not stated that she has means to support herself and her daughter and did not even make any such allegations in his evidence nor was it suggested to the opposite party when she was examined as witness that she has means to support herself and her child. In the situation even though the learned Magistrate has not recorded a finding on this point still it does not appear that it has causes any failure of justice and therefore there need not be any revisional interference by this Court. 4 Rule of pleadings had not to be strictly enforced in an application under Section 125 of the Code Criminal Procedure. It was the contention of the non-applicant that the applicant is not entitled to maintenance because of the decree passed against her. It is not his case that he has been providing any maintenance to her after passing of the decree. He disowns his liability to maintain her. In it was held that in the circumstances, it will be assumed that there is not only neglect but refusal to maintain the applicant. 5 In an application for maintenance under Section 125 of the Cr.P.C. it was not pleaded to the effect that the earlier marriage of the petitioner was not a valid marriage. It was held that omission at the most would make pleadings loose. Looseness in her pleading would not come in her way in claiming maintenance. If it did not come in her way in

1 2 3 4

5

Pandurang Avale vs. Kunda Kewaldas Avale, II (1982) DMC 150 Bombay. 1981 PLR 712. 1980 All. LJ 296. Surjit Kaur vs. Natha Singh, I (1983) DMC 154 P&H. Sambhunath Jaiswal @ Sambhu Jaiswal vs, Anjana Jaiswal, II (1990) DMC 354 Cal. Sushila vs. Namdeo, II (1991) DMC 31 Bombay.

Summery remedy—Power to impose conditions

383

claiming maintenance itself, it cannot come in her way in claiming interim maintenance. 1 In Arunabehn T. Ramanuj vs. Vasudev P. Nimavat, 2 also it has been held that the law of pleadings as applicable to civil proceedings is not applicable to maintenance proceedings under Section 125 of the Cr.P.C. It has further been held therein that loose pleadings of a party claiming maintenance under Section 125 of the Cr.P.C. would not be fatal to the claim of maintenance.

Pleading of neglect The order of maintenance under Section 125 Code of Criminal Procedure is a temporary one and the proceeding being a summary one the order is granted to provide only an emergent relief to person in need. The permanent rights of the parties have to be decided by the appropriate Court, especially after the advent of the Hindu Adoptions & Maintenance Act and more recently the Family Court Act, 1984. A person coming before the Magistrate for an order of maintenance should plead that she is neglected and that the party bound to maintain refuses to do so. There has been such an allegation by the wife/petitioner before the Magistrate. The husband in such a case can resist the petition for maintenance in offering to maintain his wife on condition of her living with him. When such an offer is made, it is still open to the wife to refuse it in which case she will have to substantiate her ground of refusal. 3

Power to impose conditions Under Section 126 of the Code of Criminal Procedure it is open to the court for setting aside ex-parte order, to impose condition and even costs. It would be hardly material as to whether such condition has been imposed by the Magistrate himself or the Revisional Court which was giving relief under Section 126 Cr.P.C., so it was for the court which could also impose conditions and even impose costs. Expression used in Section 126(2) Cr.P.C. is subject to such terms and conditions. In this case it was held that the terms in this case is otherwise reasonable. Children will not be made to starve on account of lingering on the proceeding, so if any precautions have been taken in that regard, the order cannot be interfered with particularly when it has been made clear that the amount payable by any final order. 4 1

2 3 4

Kantilal Punjaji Chavda vs. Nanubhai Kantilal Chavda, II (1993) DMC 551 Gujarat. 1992 (2) GLH (148). Nagappan vs. Vijaya Visalakshi, I (1986) DMC 124 Madras. Mustaq Ahmad vs. State of U.P., II (1985) DMC 1 All.

384

Law of Maintenance

Presumption of paternity In one case, after the marriage the opposite party lived together with the petitioner at his house. It was observed that, had the opposite party became pregnant before it may that would not escape the notice of the present petitioner and in that case he certainly would have behaved in other way towards the opposite party long before the Child’s birth. In this case, however, it was not disputed that the present petitioner nor any member of his family never misbehaved with the opposite party till after the birth of the child. In that view of the matter from the very behaviour of the petitioner himself it was held that there is no merit in the petitioner’s denial of paternity of the child in question. 1

Procedure of proceedings Section 126 of the Code prescribes the procedure which is to be followed. In particular, Sub-sec. (2) of Section 126 says that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. It is, however, further provided that if the Magistrate is satisfied that the person against whom an order for maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. However, this does not mean that the Magistrate shall pass an order without recording evidence as required in the main part of Sub-sec. (2) of Section 126. The proviso only dispenses with the necessity of recording evidence in the presence of the other side if that other side is wilfully avoiding service or wilfully neglecting to attend the Court. Section 126 (9) itself provides that all the evidence shall be recorded in the manner prescribed for summons cases. 2

Proceedings under old Code Proceedings initiated under Section 488 of the old Code, before the date on which the present new Code of Criminal Procedure, 1973 had come into force, were required to be continued and disposed of, in accordance with the provisions of the old Code only. Provisions of Section 488 of the old Code are in pari materia with those of the new Code, except that, under the new Code the divorced wife who had not remarried, has also now, become entitled to maintenance which she was denied under the provisions of the old Code. This is substantive change

1

2

Asraf Ali Molla vs. Mst. Manowara Khatoon Bibi, II (1986) DMC 99 Calcutta. Ramesh Laxman Contractor vs. Jayshreeben Ramesh Contractor, II (1982) DMC 344 Bombay.

Summery remedy—Proceedings under old Code

385

brought about in the new Code i.e. Section 125 ibid broadening the spectrum of “wife” so as to ensure the benefit of maintenance, also to a divorced woman; but this new benefit could be availed of only by the claimants, initiating proceedings under the new Code, and not by those who might have started the proceedings under the provisions of the old Code and continued them as such, even after the repeal of the said Code by the new Code, which does not contain any provision to extend the benefit of the provisions of the new Code, more particularly of Section 125 bid to the proceedings instituted under the provisions of the old Code, now repealed. It was therefore held that non-applicant wife’s prayer to treat the proceedings under Section 488 of the old Code as the proceedings under Section 125 of the new Code is just on humanitarian grounds with no legal sanction behind it; and as such, cannot be accepted. 1 The proceeding under Section 125 of the Code may be not strictly proceedings where a party is termed as an accused or a complainant, yet the same have to be tried in accordance with the procedure prescribed for summons cases. 2 Delhi High Court has held 3 that proceedings under Section 488 of the Old Code of Criminal Procedure, which was similar to the Section 125 of the New Code, are criminal in nature and still the proceedings are to be tried as summons case although provisions of Section 242 of the Old Code, which are similar to provision of Section 313 of the Code, are not applicable. The procedure prescribed for summons case is incorporated in Section 251 to 259 of the Code and Section 256 lays down that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. Proviso to this Section lays down that where the complaint is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The petitioner in this case is represented by a counsel before the trial Court. Thus, the Magistrate could dispense with the attendance of 1 2

3

Mohd. Jalil Khan vs. Anwari Begum, I (1982) DMC 338 MP. Usha Kumari vs. Parmanand @ Preme Swami, II (1990) DMC 360 Delhi. Harbhajan Kaur vs. Major Sant Singh, AIR 1969, Delhi 298

386

Law of Maintenance

the complainant during the hearing of the petitioner under Section 125, Code but it does not dispense with the discretion of the Magistrate to insist upon the presence of the complainant on any date of hearing if the interests of justice so require. So, as a matter of fact, by passing the impugned order the Magistrate is enforcing the main Section 256(1) and is revoking the permission envisaged in proviso to Section 256(1). There is no illegality or impropriety committed by the Magistrate in passing the impugned order for seeing that the petitioner appears on a date fixed when the evidence from the office, where she is alleged to be employed, is to be recorded in order to see that the identity of the petitioner is fixed. Rather it is one of the points to be seen in the proceeding under Section 125 of the Code, whether the petitioner is a destitute and is not earning anything and in case the petitioner was not employed anywhere as alleged by the opposite party, the petitioner ought to have filed on affidavit in contesting the affidavit filed by the other side. 1

Proof of marriage In our practical life, that even if the daughters are married, for long time they are described as daughter of so and so in the official record. For one reason or the other, such record are not changed and entries are often times made in such record identifying girls as daughters of their fathers instead of wives of their husbands. And what is wrong if a particular woman is described as a daughter of so and so instead of wife of so and so, although in our society, normally, the woman are described by the names of their husbands. But, just because in the electoral roll, the wife was described as the daughter of her father, it was held that it does not mean that she was not the wife of Respondent. 2

Proof of neglect In Bai Tahira vs. Ali Hussain Fissally Chothia 3 it has been observed therein that— “Section 125 requires, as sine qua non for its application, neglect by husband or father. Where in a petition by a divorced wife under Section 125, the husband did not examine himself to prove that he was giving allowances to the divorced wife, his case, on 1

2

3

Usha Kumari vs. Parmanand @ Preme Swami, II (1990) DMC 360 Delhi. Bhagirthi Bai vs. Ramrao Kadaji Warpade, I (1985) DMC 285 Bombay; see also Mohammed vs. Sulekha & Pathumma vs. Mohammed, I (1984) DMC 453 Kerala; Purna Bhadur Bista vs. Santa Bista, II (1984) DMC 189 Sikkim; Saudamini Devi vs. Bhagirath Raj, 1 (1982) DMC 333 Orissa. AIR 1979 SC 362.

Summery remedy—Recording of evidence

387

the contrary, was that she had forfeited her claim because of divorce and the earlier consent decree held that the husband had no case of non-neglected and hence, the basis condition of neglect to maintain was satisfied.” 1 A divorced wife is under no obligation to live under the roof the husband. Equally, the husband cannot forestall the claim of maintenance by making a suggestion that he has willing to keep her. The nuptial tie has been dissolved once for all. It is the new status of the wife as a divorced wife which gives her the right of maintenance. No specific words of neglect or refusal need in such a case be pleaded on proved. 2

Reconciliation Unlike the procedure prescribed under the Hindu Marriage Act, Section 125 and 126 Criminal Procedure Code do not prescribe that the Court should make any effort for reconciliation by talking to the parties. In any case, the Revisional Court ought to have recorded a note in detail duly signed by both the parties as to what had transpired in the chambers, if at all this procedure had not been objected by the parties and it could be only thereafter that he could have treated it as evidence in setting aside the order of the Magistrate on that point. 3

Reconsideration Once an order for maintenance is passed in favour of an minor on change of circumstances that order can annulled or altered only under Section 127 Cr.P.C. when an application under Section 127 Cr.P.C. is made for altering or annulling an order, Magistrate can make elaborate inquiry and then only an appropriate order for annulment or alteration can be passed. 4

Recording of evidence An application for maintenance is not a complaint within the meaning of section 4(h), Criminal Procedure Code, and, therefore, the husband is not in the position of an accused. It was found that there was nothing on the record to show that the husband was forced to adduce any evidence, even though the wife had not examined herself or any of the witnesses. Thus it was held that the evidence of the husband and his witnesses formed a part of the evidence in the case and therefore the

1 2 3 4

Sushila vs. Namdeb, II (1991) DMC 570 Bombay. Darshan Pal vs. Darshana, II (1985) DMC 135 P&H. Dhiraj Singh vs. Rajeshwari Devi, II (1989) DMC 133 All. Preetpal Singh vs. Ishwari Devi, II (1991) DMC 460 All.

388

Law of Maintenance

learned Magistrate was absolutely justified in taking the same into consideration and acting upon the admissions made therein. 1 Section 540, Criminal Procedure Code does not debar a court from examining a party as a court witness, if the court considers the evidence of that party essential to the just decision of the case. Of course, the wife had to prove neglect or refusal on the part of the husband to maintain her but, when the husband volunteered to given evidence before the evidence of the wife, the latter can take advantage of the husband’s evidence in support of her case and the Court was justified in taking into consideration the entire evidence on the record for decision of the controversial question. 2 Proceedings under Chapter IX of the Code stand on a different footing. The person against whom claim for maintenance is made is not accused of any offence; nor can he be convicted or sentenced. The proceedings against him are essentially of a civil nature, since the claim against him is essentially of a civil nature. The Court, naturally, has a duty to inform him about the proceedings and of his right to appear and contest. The normal duty of the Court is to record evidence in the presence of the person against whom the claim is made. That does not and cannot mean that the Court can compel his appearance. Whether he should appear or not is a matter left to his own decision. A person against whom a claim is made may not desire to contest the case at all. He cannot be compelled to appear in Court and to be present during the recording of the evidence. If he cannot be so compelled, the Court cannot have power to compel his appearance. This is the rationale for the provision in the proviso to Section 126(2) which empowers the Court under certain circumstances to proceed ex parte. The circumstances are where the Court is satisfied that person against whom the claim for maintenance is made is wilfully avoiding service or wilfully neglecting to attend the Court. Of course, it is not mere avoiding of service of failure to attend the Court which attracts the operation of the proviso. Avoiding of service or failure to attend the Court must be wilfully, that it, deliberate. Where such a person wilfully avoid service or neglects to attend the Court, the law enables the Magistrate to determine the case ex parte, after recording the evidence in his absence. This would also indicate that the Magistrate cannot compel appearance of such a person in the same manner in which he can compel appearance of an accused

1

2

Nalini Ranjab Chakravarty vs. Kiran Rani Chakravarty, AIR 1965 Patna 442 (DB); 1965 BLJR 582: 1965 (2) Cri LJ 530. Nalini Ranjab Chakravarty ibid.

Summery remedy—Recording of evidence

389

person by resorting to provisions relating to summons, warrant of arrest, proclamation and attachment contained in Chapter VI of the Code. 1 In the proceedings under Section 125 Cr.P.C. the manner of recording the evidence in the presence of the opposite party or of his pleader will be the same as prescribed for summons cases. Section 254 of the Code of Criminal Procedure provides that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. It further provides that the Magistrate may if it think fit, on the application of the prosecution on the accused issue a summons to any witness directing him to attend or to produce any document or other thing. It further provides that the reasonable expenses of the witness incurred in attending for the purposes of the trial may be got deposited in the Court before summoning of the witness. Section 274 requires the Magistrate to make a memorandum of the substance of the evidence of each witness as the examination proceeds in the language of the Court, and if he is unable to do so he may cause such memorandum to be made in writing from his dictation in open Court and sign the memorandum which shall form part of the record. It simply provides that the Magistrate shall record all such evidence as may be produced by the prosecution as well as by the accused. All this procedure can be adopted when the opposite party in the proceedings under Section 125 Cr.P.C. is either personally present or represented by his pleader. But if the opposite party absents himself and no pleader appears on his behalf, the manner for recording of the evidence as required for summons cases need not be resorted to. In the ex-parte proceedings, the Magistrate under the proviso to Sub-section (2) has to satisfy himself that the opposite party is wilfully avoiding service and wilfully neglecting to attend the Court. On his satisfaction the Magistrate may proceed to hear and determine the case ex-parte. In such ex-parte proceedings the Magistrate has got the discretion either to record the statement of the applicant and the witness on oath or direct or permit them to file affidavits before the Court. There is no illegality if the learned Magistrate either directs or permits the applicant or any witness to file an affidavit in proof of the facts contained in the application under Section 125 Cr.P.C. If the opposite party appears he can have the right of cross-examination of the deponent in respect of the

1

Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238 Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker 479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All Cri LJ 224.

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Law of Maintenance

averments made n the affidavit. But if he does not appear there is no illegality in relying upon the affidavit as the evidence. 1 The expression “shall” used under Sub-section (2) of Section 126, Criminal Procedure Code is to be read with reference to proviso of Subsection (3) of Section 125, Criminal Procedure Code which envisages that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, any may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. At this stage it is to be seen that if the expression “shall” used under Sub-section (2) of Section 126, Criminal Procedure Code is read with reference to Sub-section (3) of Section 125, Criminal Procedure Code it will lead towards an irresistible conclusion that the Legislature has insisted to record the evidence of wife in presence of her husband in a proceeding under Section 125 so that the husband may be provided with an indirect opportunity to patch up the differences with his wife and to effect a change of heart and restore a life of conjugal happiness by offering to maintain his wife. Not only this, it is also possible to envisage a situation where by the intervention of relations of either parties in such proceedings, the husband and wife may be mutual consent agree to live separately. The word “shall” used under Subsection (2) of Section 126, Criminal Procedure Code imposes a mandatory duty upon the Court to record the evidence in the presence of the husband. 2

Recovery and modification The proceedings under Section 127 Criminal Procedure Code are independent proceedings vis-à-vis the recovery proceeding under Section 125(3) of Criminal Procedure Code. It was held that even assuming that the two can be taken up together then it is for the trial Judge to decide the manner in which the recovery proceedings should be initiated. If the Magistrate decided to give priority to the recovery proceedings rather than the proceedings for modification then he must follow the tenet of Section 125(3) of Criminal Procedure Code which says that if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to 1

2

Jagdish Prasad vs. 4th Additional Session Judge, Varanisi, I (1996) DMC 496 All. Nand Kumar vs. Gauatri, I (2000) DMC 291 Rajasthan.

Summery remedy—Res judicata

391

imprisonment for a term which may extend to one month or until payment if sooner made. The words “without sufficient cause” emphasise that even while proceeding to direct recovery by a coercive process or for sending a defaulter to prison, the trial Judge must afford opportunity to the defaulter to show cause why the warrant for levying the amount or for sentencing him to imprisonment should not be issued. It is only if the defaulter fails to show sufficient cause that he may then take the steps for recovery by coercive process or by sentencing to imprisonment. 1

Refusal co habit At the stage when the Magistrate is considering whether an order under sub-section (1) should be passed or not, it is not relevant to consider whether there is just ground for the wife to refuse to live with him. What the Magistrate has to consider at this stage is whether the husband, though possessed of sufficient means, has neglected or refused to maintain his wife, and not whether the wife has just ground for refusing to live with the husband, because, there may be cases where the husband does not neglect or refuse to maintain his wife even though she may have just ground for refusing to live with him. To put it shortly, the jurisdiction of the criminal court to make an order of maintenance against a person having sufficient means arises only upon proof of neglected on his part to maintain his wife. In the absence of such proof it is not open to the Magistrate to make any order of maintenance. 2 Merely because wife and children left the home of husband/father, of their own accord, is no ground to refuse maintenance. 3

Res judicata One of essentials for the applicability of the general principles or res judicata is that the matter had been heard and finally decided in the earlier case. The matter should be one upon which the court had exercised its judicial mind and had come to a conclusion. The decision must have been on merit on the question in issue. In other words there must exist a final adjudication on the merits before the principle of res judicata can be involved. In this case the earlier petition filed by the wife was dismissed as withdrawn. Therefore, it was held that it was not a

1

2

3

Ashok Yeshwant Samant vs. Suparna Ashok Samant, II (1991) DMC 132 Bombay. Subhagi Devi vs. Murli Pradhan, AIR 1968 Patna 139: (CN 46) 1968 Cri LJ 539: 1968 BLJR 650. Mannava Satyawati vs, Mannava Malleswara Rao, 1995 Supp (3) SCC 259

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Law of Maintenance

decision on merit and for that reason also the subsequent petition was not barred. 1 There is no provision in the Code which bars a second application under Section 488 Cr.P.C. But when an application under this section has been heard and adjudicated upon, it is against the general principle of the rule of ‘res judicata’ that a subsequent application on the same facts should be entertained. Subject to this principle, a prior application is no bar to a subsequent application if that application was dismissed for default and there was no adjudication on the merits. On the perusal of the records, it was found that the previous case was dismissed in default and there was no adjudication on the merits, therefore it was held that there was no bar against the second application. 2 In another case it was observed as under: ‘The matter can be viewed from either angle. It can be viewed that there was a genuine effort by wife to rehabilitate herself in her matrimonial home but in vain. The previous orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out altogether. The other view can be that the maintenance order stood exhausted and thus she be left to fight a new litigation on a fresh cause of action. Out of the two courses, we would prefer to adopt the first one, for if we were to resort to the second option, it would lead to injustice.’ 3 It will thus seen that the second application by the wife is not barred. In any case either the earlier order of maintenance stood revived and could also be modified by the Magistrate to suit the present needs of the wife and the child. In alternative, the wife could renew her prayer on fresh cause of action and make fresh application for maintenance. 4

Restoration of ex parte order The proviso says that the order could be set aside for good cause shown on an application presented within three months. In a case in which the person against whom the order was made had no knowledge of the proceedings or the order, the filing of a restoration petition within three months from the date of the order does not arise at all. If at all, he 1

2

3

4

Khem Chand Kataria vs. Shakuntala Devi, II (1983) DMC 201 Delhi; Maniben vs. Manibhai Mohangir Goswami, I (1983) DMC 416 Gujarat; Vishramji vs. Kausalyabai, II (1984) DMC 227 Bombay. Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi, AIR 1965 Manipur 49: 1965 (2) Cri LJ 785. Mahua Biswas vs. Swagata Biswas, 1998 (2) SCC 359: 1998 (1) MPWN 186. Govind Singh vs. Sunita Devi, I (2001) DMC 490 MP.

Summery remedy—Revision

393

need file only a petition on getting knowledge of the order. He can only do so. Normally that provision may be intended to be applicable only in cases coming within the proviso. Otherwise the provision to file an application to set aside the ex parte order and too within three months of the order cannot have any meaning. “Good cause” mentioned in the proviso must have some nexus with the wilful avoidance of service or wilful neglect to attend the court. There is no question of a person to whom no notice was taken or who did not avoid the notice and did not refuse to appear before court showing “good cause” within three months. At any rate three months provided from the date of the order cannot be applied in such case. The provision for filing a restoration application may be intended only in cases of persons coming within the first part of the proviso, because compliance of that part of the proviso is an essential ingredient for empowering the Magistrate to proceed ex parte. When a Magistrate proceeds ex parte, without satisfaction of either of those conditions, the ex parte order itself become illegal. In such cases, it cannot be held that the person against whom the ex parte order is passed is bound to appear before the Magistrate and file an application for restoration as a condition precedent to approaching higher authorities in revision. It was held that, the illegal order could be challenged by person against whom the order was made by filing a revision before the Session Judge, who is competent to entertain the revision. If he chooses, he is also entitled to file an application for restoration before the Magistrate himself. 1

Review and recall Review is a creature of the statute in absence of which such power cannot be exercised. Where, however, Magistrate or his successor finds that the disposal was without jurisdiction which under no circumstances could have been passed in exercise of the power vested, to recall such order would be ancillary to the power to dispose of the application on merits. Such ancillary power is not inherent power. 2

Revision While exercising Revisional powers, the court is not expected to act as if it is hearing an appeal and to reappreciate the evidence. 3

1 2 3

Sumathi vs. N.J. Pater, II (1985) DMC 406 Kerala. Sabitri Barik vs. Siba Barik, II (1989) DMC 376 Orissa. Saeeda Khatun Mohmad Athar vs. Mohmad Athar Monhad Taher, II (1983) DMC 1 Gujarat.

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Law of Maintenance

The questions whether the one claimant was the married wife of the respondent and whether the other claimant was the legitimate or illegitimate child of the respondent, are pre-eminently questions of fact. When the Magistrate after considering the evidence, as adduced by the parties, held that the applicant was not the wife of the respondent and further held on the basis of the evidence on record that the other applicant was the illegitimate child of the respondent. After considering the evidence on record it was held that the learned Judge of the High Court committed an error in making a re-assessment of the evidence and coming to a finding that the second applicant was not the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. 1

Right of children The key to this provision is furnished in the case of the child by the words “unable to maintain itself”. In different communities and different circumstances these words may mean different thing. Among the labouring classes it may even be possible to hold that a healthy boy aged 16 is not unable to maintain himself. On the other hand, regard being had to the circumstances of the family of the petitioner it cannot be said that a girl aged 19 studying in the Intermediate classes is able to maintain herself. The Legislature purposely omitted reference to any particular age. The emphasis is on the words “unable to maintain itself”. It is a question to be decided on the evidence of each case whether a particular child is or is not able to maintain itself. For that, regard must be had to the particular circumstances obtaining in each family and its status. 2 The liability of the petitioner under Section 125 of the Code of Criminal Procedure to maintain his son is not diminished in any manner because he is living with mother who is also an earning hand. Even if it may be accepted that under the Hindu Law a mother is liable to maintain a child but this principle cannot be applied to the proceedings under Section 125 of Code of Criminal Procedure. Taking into consideration the income of the petitioner, it could not be held that he has no means to maintain his minor son. 3 1

2

3

Pathumma and another v. Muhammad, AIR 1986 SC 1436: 1986(1) Scale 603: 1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj LJ 788. Abdul Hai Qadir Bux vs. Km. Azra Sikander, AIR 1965 All 125:1965 (1) Cri LJ 269. Amarjit Pal Singh vs. Pankaj Puri, I (1994) DMC 414 P&H.

Summery remedy—Scheme

395

Satisfaction of ex-parte order In one case the order passed by the Magistrate did not show that he had the satisfaction of either of the grounds according to the proviso to Section 126(2). Without any basis he has simply stated that the respondent in evading service and he was wilfully neglecting to appear before court. Whether the Magistrate could conduct an independent enquiry on a miscellaneous petition to see whether the counter petitioner is avoiding summons or wilfully neglecting to appear before court, was a matter that was held to be doubtful. Anyhow for the purpose of entering the satisfaction the Magistrate will have to confine himself to the evidence in the case. If the petitioners are allowed to file miscellaneous petitions and adduce evidence regarding extraneous matters in proof of avoidance of service or wilful neglect in appearing before court, they may be able to manipulate evidence in the absence of the person against whom the decision is taken to proceed ex parte in the matter. Appearance in the civil cases and other matters were extraneous to the scope of the enquiry by the Magistrate. The fact that he accepted summons in another proceeding cannot show that the notice from the maintenance case was served on him or that he avoided the same. The records in the case showed that no notice was served on the respondent or that he avoided service or wilfully neglected to appear before court. If so, it is clear that the Magistrate proceeded ex parte without the satisfaction required under the proviso to sub-section (2) Section 126. His action was held to be illegal. 1

Scheme Section 125 Criminal Procedure Code contemplates that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself then the magistrate may make an order directing such person to make a monthly allowance for the maintenance of his wife at a rate not exceeding Rs. 500/- in whole. Sub-clause (4) of Section 125 Criminal Procedure Code provides that no wife could get an allowance from her husband under Section 125 Criminal Procedure Code if she was living in adultery or if without any specific reason she had refused to live with her husband or if they had started living separately by mutual consent. 2 The provision for some amount of maintenance under Section 125 Criminal Procedure Code has apparently been made looking at the peculiar circumstances under which neglected women, minor children

1 2

Sumathi vs. N.J. Pater, II (1985) DMC 406 Kerala. Rajendra Prasad Gupta vs. State of U.P., II (1991) DMC 113 All.

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Law of Maintenance

and poor parents have been living in the society since long. This relief can be claimed by the aggrieved person under Section 125 Criminal Procedure Code at the place of their own residence. Consequently to deny the said remedy to a neglected and hard pressed wife merely on the ground that she could claim it in a suit which she could defend and which may sometimes be pending at a place different from her place of residence, would almost render the facility and benefit which has been provided to her under Section 125 Criminal Procedure Code nugatory. Consequently it was held that a proceeding under the provisions of Hindu Marriage Act can not operate as a bar to a proceeding of maintenance under Section 125 Criminal Procedure Code. 1 In another case, on behalf of the husband two facts were brought to notice of the Court, namely, (1) that in divorce petition the wife had been awarded interim maintenance of Rs. 450/- per month; (2) that the children had attained majority and each of them was above 18 years of age. It was held that both these facts are not relevant to an application for setting aside of ex parte order of maintenance which has to be decided only on the basis of presence or absence of good cause. Facts touching the grounds on which maintenance can be awarded are not relevant to an application for setting aside of ex parte order. Any order of the civil Court regarding maintenance overrides the order of maintenance under Section 125 Criminal Procedure Code. If there is already an interim order for maintenance the Civil Court the maintenance paid thereunder has to be taken into account in proceedings under Section 125 Criminal Procedure Code also. 2 In this case there was a maintenance order. There was an existing maintenance order under Section 125 Criminal Procedure Code it was only in realisation proceedings that any payment made under the order of civil Court for interim maintenance has to be taken into account. It was held that so far as the question of majority of the children is concerned that can be a ground for cancellation of maintenance order passed in their favour. If the husband so chooses he can file an application under Section 127 Criminal Procedure Code for cancellation of the maintenance order in favour of the children on the ground that they have attained majority. In cancellation proceedings the Magistrate can even pass order of cancellation with retrospective effect the date each of the child attained majority. 3

1 2 3

Rajendra Prasad Gupta vs. State of U.P., II (1991) DMC 113 All. Raja Ram vs. Jain Mala Jain, II (1991) DMC 252 All. Raja Ram vs. Jain Mala Jain, ibid.

Summery remedy—Scheme

397

Another view is that if there is a discretion vested in the Magistrate, then no obligation can be imposed upon him to follow the judgment of a competent civil court. The two jurisdictions are independent of each other and where a person refuses or neglects to maintain the parents the wife even though divorced, and children even though illegitimate, the Magistrate, subject to the conditions and limitations stated in the Code has an obligation to make provision for them in order to prevent penury, vagrancy and misery. These wholesome provisions were enacted as early as the Act 25 of 1861. Even Section 4 of the Act does not stand in their way. That Section renders all laws inapplicable if made before the Act and are in consistent with any provisions of the Act. Section 125 was enacted after the Act and was not inconsistent with Section 125 of the Code can stand side by Act and Section 125 of the Code can stand side by side. 1 Their scope and purpose are different. A mere order of permanent alimony or maintenance is not equivalent to maintaining the wife and cannot oust or take away the jurisdiction of the Magistrate. 2 Such an order will of course be relevant only in considering what form of order the Magistrate should make Section 125 contains no direction that an order under that Section cannot be made if there is a decree for maintenance of a civil court. 3 Even an agreement between the parties will not of itself be a bar to an order under Section 125 of the Code. 4 The Magistrate has a real discretion and though he must exercise it judicially, he cannot be asked to surrender it even where the civil court is satisfied that the husband is bona fide prepared to maintain the wife. Therefore, it has been held that a decree of restitution of conjugal rights obtained with the object to get the Magistrate’s order for cancelled, with not justify the Magistrate to cancel his order., 5 where a decree passed by the civil court becomes in executable for some reason or other, an order under Section 125 can be made and maintained. 6 Even where there is no strict proof of marriage and parties went through some form of marriage 1 2 3 4 5

6

Nanak Chand v. Chandra Kishore Aggarwal , AIR 1970 SC 446. E.C. Kent vs. E.E.L. Kent, AIR 1926 Mad 59. Taralakshmi Nanuprasad, AIR 1938 Bom 499. Prabhu Lal vs. Rami Pavakkal vs. Athappa Goundan, AIR 1925 Mad 1218; Fakruddin Shamsuddin Salyed vs. Bai Janab, AIR 1944 Bom 11; Kuti Bala Dassi vs. Nabin Chandra Das AIR 1955 Cal 108 Mohamed Ali Mithabai, AIR 1930 Bom 144; Govindasmi Mudaliar vs. Muthulaksmi Ammal, 1966 Cr. LJ 732.

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Law of Maintenance

and lived as husband and wife the Magistrate can apply factum valet and raise a presumption of a valid marriage. 1 The question whether a decree or an order of civil court would bear an order under Section 125 of the Code would, therefore, depend upon the facts and circumstances of each case. Nataranjan J. in Linga Gounder v. Raman, 2 held that Section 125 does not lay down either that the existence of a decree for maintenance passed by a civil court will bar the jurisdiction of a Magistrate to entertain a petition for maintenance or that if there had been an earlier decree by a civil court, a Magistrate must confine his award only to the quantum fixed by the civil court. 3 Section 125(1) of the Code prescribes that Magistrate can order a person to make a monthly allowance for the maintenance of his wife or child, if such person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. The power to grant maintenance is conferred on a Magistrate provided two basic requirements are established. The first requirements is that the wife is unable to maintain herself and the second is that her husband has sufficient means but neglects or refuses to maintain the wife. The Explanation to Sub-section (3) merely provides the guideline to the Court and prescribes that when husband contracts second marriage, then the wife is entitled to live separately from her husband. The Explanation by, itself does not enable the wife to claim maintenance under Subsection (1). A wife may be entitled to live separately from her husband because the husband has contracted second marriage but that fact by itself is not enough for a Magistrate to award maintenance. The wife has to establish that she is living separately and she is unable to maintain herself and her husband has neglected or refused to maintain her. Unless these facts are established, the wife is not entitled to claim maintenance merely because the husband has contracted second marriage and that fact entitles her to live separately. 4

Scope of jurisdiction In a proceeding under Section 125 of the Criminal Procedure Code the Court does not determine the status of parties and it does not 1

2 3

4

Parvathy Amma vs. Gopal Gounder, 1956 MLJ 408 and Pachigolla Srinivasarao vs. Pachugoola Samundram, 1975 Cr LJ 1581 1978 Cr LJ 469. Referred and relied in Kuldeep Kumar vs. Chander Kanta, I (1984) DMC 48 Delhi. Mustafa Shamsuddin Shaikh vs. Shamshed Begum Mustafa Shaikh, I (1991) DMC 34 Bom.

Summery remedy—Scope of jurisdiction

399

given any finding having the value of res judicate in respect of the parentage or matrimonial status. The provisions of the Chapter XI of the Code are meant to preserve peace and avoid strife in society by providing immediate relief to parties who are neglected, and who otherwise would resort to vagrancy, mendacity or other anti-social activities. In a proceeding under Chapter IX, Criminal Procedure Code, the role of the Magistrate is only to find out whether there is a prima facie case in the claim of the person approaching the court for an immediate relief. He has no time, no jurisdiction to embark upon an elaborate enquiry. 1 The intendment of Section 125 Criminal Procedure Code is to prevent vagrancy by compelling a person to support his wife or child or father or mother unable to support itself. That being the object and intendment, the above Section does not aim at determining legal rights. The powers of the criminal Court under this Section are limited in scope and the orders passed there under are subject to any final adjudication that may be made by Civil Court between parties respecting their civil rights and status. The proceedings therein are summary in nature and cannot be equated to cases like regular civil suit for maintenance or a regular criminal prosecution for bigamy. The order passed being tentative are subject to final determination of rights of parties by Civil Court and are also liable to be varied with change of circumstances. When the said order are subjected to final decision in the civil suit and are susceptible for removal by any decree passed in the civil proceeding, the degree of proof in maintenance cases arising under Section 125 Criminal Procedure Code is less and it is sufficient to prove, that there was a physical union between a man and a woman for a considerable length of time and that a child is born through the said physical union from which springs a presumption that the child is born to the said person. 2 The provision under Section 125 are summary in nature, and provides for swift and cheap remedy against a person who deprives his wife or neglects or refuses to maintain her or his minor child, legitimate, or illegitimate, unable to maintain itself. Section 125 prescribes a summary procedure. The findings are not final and the parties are at liberty to agitate their rights in a civil court. The summary procedure does not cover entirely the same ground as the civil liability of the husband or father or son under Personal Law to maintain his wife, child or parent. When substantial issue of civil nature are raised, the remedy 1 2

K.M.S. Mani vs. Tamizharasi, I (1988) DMC 275 Madras. Doddi Nagulu vs. Doddi Mutyalamma, I (1994) DMC 236 AP.

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Law of Maintenance

lies only in civil courts. If that is so, there is no substance in the contention of the husband that the revisional court has not considered the legal issue involved in the case. The husband is not without any remedy and this case being one of summary nature and when a point is raised before High Court which was not raised at the earliest point of time, High Court would not entertain the said ground at such belated stage. 1

Scope of revision In revision evidence cannot be reassessed. But if in assessment of evidence a legal mistake has been committed by the Trial Court, the same can be corrected in revision. Cardinal principal is that in matrimonial or maintenance cases solitary evidence of a spouses attributing unchastity or adultery to the other party, should not be relied upon because such spouse is extremely interested in the case. 2

Second marriage of husband In one case the court below proceeded on the footing that because opponent-husband belonged to Mohammedan community and as the Mohammedan Law permits a Mohammedan male to keep four wives at a time, this ground of second marriage cannot be treated as a reasonable ground for staying separate and claim maintenance. It was observed as under: ‘If the new taken by the courts below is accepted then it would mean that a particular type of conduct or behaviour which may be permissible under personal law of a party cannot be set up as a ground for claiming maintenance. The obvious consequence of the aforesaid proposition would be that a husband belonging to Hindu community may keep a mistress or a concubine with him and say that law does not prohibit him from keeping a mistress and/or a concubine and therefore this cannot be a ground for his wife to stay separate and claim maintenance. This would obviously be absurd and such an argument cannot be sustained even for a moment for the simple reason that conjugal house cannot be maintained run smoothly unless both the spouses act with self restraint and have respect for the feeling of each other. In matrimonial relations, it is expected of both the spouses to behave in such a fashion that one’s behaviour or conduct does not become an irritant or a source of mental agony to another. Having regard to the dominating position of make in Indian Society, it should be all the more necessary for husband to see that he behaves in such restrained fashion that his behaviour and conduct does not prove to be a source of mental agony to his wife. The behaviour complained of by the wife may be perfectly legal and 1 2

Siddalingappa vs. Yellabai, I (1983) DMC 248 Karnataka. Dhanalakshmi vs. R. Prasanna Kumar, I (1990) DMC 36 SC.

Summery remedy—Second marriage of husband

401

even permissible under persona law of the husband. But if such behaviour proves to be an irritant to the wife or it becomes a source of mental agony, then the same can surely be made a ground for staying separate and claiming maintenance. No self respecting woman would like that her husband may contract a second marriage. If second, third or even fourth marriage is permissible under Mohammedan Law, a Mohammedan male indulge in that luxury. At the most be may not be liable for offence of bigamy. But if such a behaviour proves to be an irritant to his wife and if the same becomes a source of mental agony to her, he cannot take shelter under his personal law and say that he is not liable to pay maintenance to his wife. In a given case, Mohammedan wife would surely be entitled to live separate and claim maintenance solely on the ground that the very idea of contracting second marriage by her husband is abhorrent to her mind and therefore the second marriage by her husband cause agony and cruelty to her. In such a situation husband cannot take shelter under his personal law and claim immunity from paying maintenance to his wife.’ 1 A statutory right flows from Section 125(1) of the Code of Criminal Procedure. That section makes the maintenance incidental to un-dissolved marriage. Reference to second wife can be found only in the Explanation to Sub-section (4) of Section 125 of the Code of Criminal Procedure. This sub-section does not create any right in the wife. It only declares that the second marriage of the husband would be considered as a sufficient cause for the wife to refuse to live with the husband. It says nothing beyond that Sub-section (4) says that even after the passing of the order of maintenance if the husband shows his willingness that he is prepared to maintain is wife in case she comes to reside with him, then that has to be probed into by the Court. the Explanation to Section 125 of the Code says that second marriage of the husband will be justifiable cause for the wife to stay separately from the husband. Can it be said in these circumstances that the wife has a statutory right to claim maintenance only because the husband marries a second wife? The question was answered in these words: ‘In my opinion, not. We have to go to the root cause as to when and why the wife started residing separately from her husband. Neglect and/or refusal conveys something more than more omission to discharge a duty. It requires animus also. If is from this point of view that the court has to consider why the wife is living separate and whether her living separately is justifiable in the circumstances. Here the wife within 4 months of her marriage goes to her father. The husband says that she went to her father 1

Banabibi Sikandarkhan vs. Sikandarkhan Umarkan, II (1983) DMC 375.

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Law of Maintenance

voluntarily. The wife says that she was driven from the matrimonial house. It is not necessary for us to go into this controversy. Further circumstances show that there was a litigation initiated by the husband for restitution of conjugal rights. It shows that he had a very keen desire to have the wife under his shelter so that the matrimonial obligations could be discharged. At this time there was no second wife. The Civil Court probed into the matter in details and on facts it came to the conclusion that it was the wife who has deserted the husband and that too for no justifiable cause. This finding has become final as no appeal has preferred by the wife. In view of these findings, it does not lie into the mouth of the wife no to say that she did nor desert her husband and it was the husband who has driven her out of the house. She has to accept the finding of the Civil Court as far as the desertion is concerned. there is no choice left open to her. From this point of view, it cannot be said that the husband and under obligation, either statutory or otherwise, to maintain a wife who has deserted him without any justifiable cause. The husband is no doubt under obligation to maintain his wife and child. The wife has to prove in these circumstances that the husband has neglected and/or refused to maintain her. In view of the findings recorded by the Civil Court, it is not open for the Criminal Court to record a finding of ill-treatment which has been negatived by the Civil Court. When the Civil Court has found as a fact that wife has deserted the husband, there can no finding of refusal or neglect to maintain.’ 1 The Supreme Court has also held that the second marriage being null and void, the second wife is not entitled to maintenance. 2

Second revision What cannot be done directly cannot also be one indirectly. To circumvent a bar specifically imposed under the Code of Criminal Procedure resort to the provisions of Article 227 of the Constitution of India for moving a second Revisional application is deprecated and if the provisions of Article 227 of the Constitution of India is allowed to be invoked in by-passing a bar imposed by the statute in the absence of any of the guidelines laid down by the Apex Court, the dream of the founding fathers of our Constitution will be shattered. In this context the Supreme Court observed 3 as under: “Where the statute banned the exercise of revisional power by the High Court, it would indeed require very exceptional 1 2

3

Gulam Jilani vs. Sahera Bano, I (1989) DMC 245 Bombay. Khemchand Om Prakash Sharma vs. State of Gujarat, 2000 (3) SCC 753: 2000 SCC (Cr) 748 Jagir Singh vs. Ranbir Singh, AIR 1979 SC 381.

Summery remedy—Service by post

403

circumstances to warrant interference under Article 227 of the Constitution, since the power of superintendence was not means to circumvent statutory law.”

Sentence In one case the learned Magistrate sentenced the husband to undergo 20 months’ simple imprisonment on the ground that there was default for 20 months. But that is permissible under Section 125(3). A Full Bench of Bombay High Court 1, held that the power of the Magistrate is in respect of whole or any part of each month’s allowance remaining unpaid to sentence a person for a term not exceeding one month. The Full Bench upheld an order of the Magistrate sentencing the husband to be imprisoned for a term of 15 days in respect of each month for which the allowance remained unpaid. Therefore it is open to the magistrate under Section 125(3) to pass the sentence of imprisonment up to one month in respect of each month. However imprisonment for 20 months was held to be severe. It was accordingly reduced to a term at the rate of 9 days in respect of each month, in total 180 days, i.e. for 6 months. 2

Separate living by agreement Right granted to the wife and children for maintenance under Section 125, Criminal Procedure Code is very serious and valuable right. There must be cogent evidence to show that this right had been given up by the wife or the child’s mother as the case may be. Husband had not stated about the differences between them which had made their living together impossible and therefore, document cannot be viewed as operating as mutual consent between them for their living separate. 3

Service by post In a case, where the person against whom claim for maintenance is made is residing abroad, it is not practicable for the Court to ensure that summons is served on him by a police officer or by an officer of the Court issuing summons, or even by other public servants. It will not be possible for the Court to cause service to be made under Section 64 on an adult member of his family residing with him for, he would be residing abroad; affixture under Section 64 also may not be possible since he may not have residence within the jurisdiction of the Court or anywhere within India. It may also be impracticable to cause service to be effected under Section 67 through the Magistrate within whose local jurisdiction 1 2

3

in K.R. Chawda vs. State of Bombay, AIR 1958 Bom 99 Gangula Pratap Reddy vs. Gangula Vijaylakshmi, I (1983) DMC 181 AP. Harvinder Kaur vs. Paramjit Singh, 1999(1) HLR 260 P&H.

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Law of Maintenance

the person concerned ordinarily resides. It was held that the Magistrate, guided by the broad principles contained in Part A of Chapter VI will have to devise ways for service or process. There is no legal difficulty, in the light of these circumstances, in service being effected by registered post or even through a public servant working in Indian Embassy or Consulate in a Foreign country. 1 In essence and substance, what the Magistrate should issue is a notice to the person against whom claim is made, informing him that such a claim has been made and that it is open to him to appear in Court and contest the claim. In serving the process, the broad principles contained in Part A of Chapter VI of the Code have to be followed. Other recognized ways of effecting service of notice such as by registered post also could be followed. 2 Service in regard to proceedings under Chapter IX is not to be effected strictly in terms of the provisions in Part A of Chapter VI of the Code, though the broad principles of the latter chapter could be invoked and service by registered post through an officer of the Indian Embassy abroad would also be valid service. Where service is effected by registered post or through an Indian Embassy abroad, that would be sufficient service. Such service cannot be challenged on the ground that service has not been attempted in terms of the provisions of Part A of Chapter VI of the Code. 3

Service of process For valid service entitling the Court to proceed ex parte, due service i.e., service of notice along with a copy of the application may not be held necessary. When the date of hearing is known, in the context of section 125 of the Code, irregularity in service has to be held to be inconsequential for the purpose of section 126(2). 4 Chapter VI of the Code is captioned “Processes to compel appearance”. Under Section 126, Criminal Procedure Code, the Magistrate is not required to compel appearance of the respondent. On the contrary, if the Magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglecting to attend the Court, he has to set 1

2 3 4

Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238 Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker 479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All Cri LJ 224. Balan Nair vs. Bhavani Amma Valsalamma, ibid. Balan Nair vs. Bhavani Amma Valsalamma, ibid. Prakash Chandra vs. Raj Kumari, I (1987) DMC 25 MP.

Summery remedy—Service of process

405

the respondent ex parte. This is no because of the nature of the proceedings under Chapter IX which the Supreme Court in Nandlal Misra vs. Kanhary Lal Misra, 1 has stated are civil in nature and the relief given is also essentially civil in nature. Unlike proceedings under Section 125 of the Code, an accused or a witness as the case may be, has to be compelled to attend Court, by resorting to the processes made available to the Court under Chapter VI such as summons, warrant proclamation and attachment. Since a respondent in proceedings under Section 125 need not be compelled to attend Court Chapter VI dealing with processes to compel appearance cannot apply to Chapter IX. This further made clear by the language in Section 126 “wilfully avoiding service”, and not “wilfully avoiding service of summons”. Even Section 126(2) which makes summons procedure applicable to these proceedings, restricts it to mere recording of evidence and does not make summons procedure applicable to commencement of proceedings, by issue of processes. The Full Bench of the Kerala High Court 2 has held that service in regard to Chapter IX, is not to be effected strictly in terms of the provisions of Part A of Chapter VI, though the broad principles of the latter Chapter could be invoked and service by Registered Post or through a public servant could be made. The Magistrate guided by the broad principles contained in Part A of Chapter VI, will have to devise ways for service of process. When that has been done, such service cannot be challenged on the ground that service has not been admitted in terms of the provisions of Part A of Chapter VI of the Code. 3 It follows that, Chapter VI is not applicable to proceedings under Chapter IX. The Magistrate could issue process to the respondent either by issue of summons or by issue of notice, sent by Court, by Registered Post or by hand delivery by a Court Officer or any other public servant or in any other manner. If the Magistrate is satisfied that the respondent is avoiding service, he is to set the respondent ex parte. Then again if he is satisfied that the respondent after service of process, is wilfully neglecting to attend the Court, the Magistrate could set him ex parte at any stage of the proceedings. Once service is effected on the respondent in some mode or other, the same cannot be questioned on the grounds that service is illegal, as not being in conformity with Chapter VI. 4

1 2 3 4

AIR 1960 SC. 882. Balan Nair vs. Bavani Amma, 1987 Crl. LJ. 399. A. Simon vs. Venkatammal, II (1991) DMC 66 Mad. A. Simon vs. Venkatammal, II (1991) DMC 66 Mad.

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Law of Maintenance

Keeping in mind the object with which Chapter IX was enacted and the nature of the proceedings under it, it follows that, the rigid rules laid down for serving summons on an accused, facing a punitive trial cannot be applied to a husband called upon to discharge a moral obligation to maintain his dependants. Kerala High Court in a Full Bench decision, 1 after considering the different provisions of the Criminal Procedure Code and the decisions on the aspect, has expressed the view that what is really sent to the respondent in a proceeding under Section 125, Crl.P.C. could not strictly be described in “summons” but is really in the nature of a notice or an intimation to the respondent, that a claim has been preferred against him and he is put on notice of the same. 2 Whereas under the Code, be it a summons case or a warrant case, the accused has necessarily to be brought before Court, either through summons or through warrant, there is no such requirement under Chapter IX. Even Section 113, 134 and 145 (2), Crl.P.C, require summons to be served in the manner provided under the Code, on the person against when the executive authority proposes to take action. Chapter IX is significantly silent. While Section 126(2), Crl.P.C requires that evidence in such proceedings should be taken in the presence of the person against whom an order of maintenance is proposed to be made or in the presence of his pleader the Chapter does not require that any process to compel the attendance of the respondent, should be issued. Even the “service” referred to, in the proviso to Section 126(2), Crl.P.C. is not equated with summons. The respondent is put on notice that a claim has been made against him, and, if he chooses, he could appear in court and contest. It is left to the respondent either to attend the court and contest or refrain from doing so. 3 In case, the respondent chooses not contest the proceedings and if the Court is satisfied under the proviso to Section 126(2), Crl.P.C that the respondent is either wilfully avoiding service or wilfully neglecting to attend the Court, the court could set him ex parte. In a Criminal trial if the accused is absent, he was to be brought before the Court, if necessary through coercive steps. An accused cannot be set ex parte, while the respondent in a proceeding under Section 125, Crl.P.C can be set ex parte if he chooses to absent himself. This marks the fundamental difference in the way in which the framers of the Code have chosen to treat the two proceedings. Just as in a civil case summons have to be sent to the defendants by registered post with acknowledgement due, and on 1 2 3

Balan Nair vs. Bhawani, 1987 Crl. LJ. 399 Ker (FB) Parthasarathy vs. Banumathy, II (1988) DMC 473 Madras. Parthasarathy ibid.

Summery remedy—Stay of order

407

receipt of summons if the defendant does not appear in court, the Civil Court has to set him ex parte and proceed to hear the claim of the plaintiff and grant relief, so too, under Chapter 9, Crl.P.C. a Criminal Court is empowered to set the respondent ex parte and proceed to hear the claim of the petitioner and grant relief. It can, therefore, be stated that what is sent to the respondent could not strictly be described, as “summons” within the meaning of the Criminal Procedure Code, thereby attracting Section 65, Crl.P.C. The mode of giving him notice of the proceedings need not be by taking out a summon to him in Form-I described as “summons to an accused person issued under Section 62(1), Crl.P.C. It was held therefore that in an application under Section 125, Crl.P.C. causing notice to be served on the respondent, by registered post with acknowledgment due is not illegal. 1

Service of summons on witnesses Even to witness, ordinary summons through the officer of the court or through police officer has to be issued, but it is only in the case of a witness that in addition to such ordinary summons, additional summons by Registered Post is also possible. It is obvious that in so far as the parties to a proceeding are concerned, the summons has to be issued either through police officer or through the officer of the Court. 2

Stay of order Under sub-section (2) of Section 127 of the Code of Criminal Procedure, where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. In the circumstances, it may still be open to the respondent to move the Magistrate for making an order under Section 127 (2) of the Code of Criminal Procedure but only after the decision of a competent Civil Court. 3 When there is no such decision of a competent Civil Court so as to warrant invoking Magistrate’s jurisdiction under-Section 127(2) of the Code of Criminal Procedure, exercise of power is not called for. 4

1 2 3 4

Parthasarathy vs. Banumathy, II (1988) DMC 473 Madras. Abdul Kayyum vs. Sultana Begum, II (1984) DMC 217 Bombay. Gayabai vs. Yadavrao, I (1988) DMC 6 Bombay. Gayabai vs. Yadavrao, I (1988) DMC 6 Bombay.

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Law of Maintenance

Stay of proceedings A maintenance proceeding under Section 125 of the Code of Criminal Procedure cannot be stayed till conclusion of the Civil Suit challenging the question of marriage. The petition under Section 125 of the Code of Criminal Procedure is aimed at ameliorating of the plight of the destitute and helpless women. A proceeding under Section 125 of the Code of Criminal Procedure is really a summary order which does not determine the rights of the parties as the Magistrate exercises his jurisdiction under Chapter IX of the Code of Criminal Procedure which is a remedial jurisdiction for preventing vagrancy, the decision of the Magistrate under Section 125 of the Code of Criminal Procedure for refusal of maintenance or for grant of maintenance cannot be decisive factor in any civil proceeding between the parties. As such, the plea of the husband that the question of marriage is under challenge before the Civil Court cannot come to his aid for staying the maintenance proceeding under Section 125 of the Code of Criminal Procedure till decision of the Civil Court. 1 In one case the husband had filed a title suit for a declaration that the opposite party is not his legally-married wife and he prayed that the proceeding under Section 488 of the old Code should be stayed during the pendency of the suit. The opposite party wanted maintenance in these proceedings. It was held that the suit and, after it is concluded the appeal, etc., are likely to take a long time. The opposite party cannot be allowed to be completely without maintenance for all that time. Therefore it was held these proceedings ought not to be stayed. On the other hand, it was directed that the Magistrate should proceed to dispose of the proceedings as quickly as possible. 2

Subsequent events While deciding a case the courts can take into consideration subsequent events. Therefore to avoid multiplicity of proceedings, it was held as under: ‘The event of causing [this] aspersion took place after the application was filed and before the case was decided. It is, therefore, a subsequent event. There is nothing wrong in taking notice of the same instead of forcing the party to file a fresh application as this would result in multiplicity of proceedings and unnecessary litigation.’ 3 1 2

3

Kumaresh Brambha vs. Bani Das, I (2000) DMC 305 Calcutta. Abdul Hamid Sadiq vs. Bibi Ashrafunnissa, AIR 1965 Patna 344: 1965 (2) Cri LJ 236. Shakuntala vs. Rattan Lal, I (1982) DMC 18 HP.

Summery remedy—Summoning of complainant

409

Sufficient income Where the wife in her examination admitted that she was working as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it was held that the object of Section 125, Criminal Procedure Code is to prevent vagrancy, by compelling a person to support his wife or child, or father or mother, unable to support itself. The maximum amount payable under this Section is Rs. 500/- p.m. This amount is not intended for leading a luxurious life. The powers of the Criminal Court under Chapter IX are limited in scope and orders passed thereunder are subject to any final adjudication that may be made by a Civil Court between the parties respecting their civil rights and status. Since the wife was getting Rs. 735/- p.m. which is sufficient to keep her from starvation. She was held not entitled to claim maintenance from the husband. 1

Summoning of complainant The proceeding under Section 125 of the Code may be not strictly proceedings where a party is termed as an accused or a complainant, yet the same have to be tried in accordance with the procedure prescribed for summons cases. In Harbhajan Kaur vs. Major Sant Singh, 2 it has been held court that proceedings under Section 488 of the Old Code of Criminal Procedure, which was similar to the Section 125 of the New Code, are criminal in nature and still the proceedings are to be tried as summons case although provisions of Section 242 of the Old Code, which are similar to provision of Section 313 of the Code, are not applicable. 3 The procedure prescribed for summons case is incorporated in Section 251 to 259 of the Code and Section 256 lays down that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. Proviso to this Section lays down that where the complaint is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. 1 2 3

Manikkuttan Nair vs. Girija Amma, I (2001) DMC 117 Kerala. AIR 1969 Delhi 298. Usha Kumari vs. Parmanand @ Preme Swami, II (1990) DMC 360 Delhi.

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Law of Maintenance

The petitioner in this case was represented by a counsel before the trial Court. Thus, it was held that the Magistrate could dispense with the attendance of the complainant during the hearing of the petition under Section 125, Code but it does not dispense with the discretion of the Magistrate to insist upon the presence of the complainant on any date of hearing if the interests of justice so require. Therefore by passing the impugned order the Magistrate was held to be in enforcement of the main Section 256(1) and was revoking the permission envisaged in proviso to Section 256(1). There was no illegality or impropriety committed by the Magistrate in passing the impugned order for seeing that the petitioner appears on a date fixed when the evidence was to be recorded in order to see that the identity of the petitioner is fixed. Rather it is one of the points to be seen in the proceeding under Section 125 of the Code, whether the petitioner is a destitute and is not earning anything and in case the petitioner was not employed anywhere as alleged by the opposite party, the petitioner ought to have filed on affidavit in contesting the affidavit filed by the other side. 1

Temporary arrangement An order passed under Section 125, Code of Criminal Procedure is only a temporary arrangement and that it is open to the parties to approach the matrimonial court in order to settle permanently their respective rights. That Court would have full jurisdiction to modify this order of maintenance after hearing fully the pleas of the parties and recording their evidence relevant thereto. 2

Territorial Jurisdiction It is not only the word “district” which one must have regard to, but the entire expression “any district where he resides”. There appears to be no reason why the express use of the word “district” by the Legislature should be given any meaning difference from the normal connotation of that word and there is no reason at all why in spite of the use of the words “any district where he (the husband) resides”, it should be limited only to a Court within that district within whose jurisdiction the husband resides. 3

1

2

3

Usha Kumari vs. Parmanand @ Preme Swami, II (1990) DMC 360 Delhi. Juliet Vasantha vs. Antony Marimuthu, II (1985) DMC 223 Madras. Shantabai W/o Vishnupant vs. Vishunpant Atmaram Kulkarni, AIR 1965 Bombay 107: 66 Bom LR 741: 1965 Mah LJ 137: 1965 (2) Cri LJ 73.

Summery remedy—Territorial Jurisdiction

411

The object of the section appears to be clear enough: Where a husband and wife have fallen out and the wife is required to make an application either for herself or for her child, she should not be put to the harassment of going to the vary place where the husband is at the time of the application residing. If that were so, the recalcitrant husband has fallen out with the wife could move about from place to place and thus make it impossible for the wife to choose a place in which to prefer her application for maintenance. At the same time it is clear that a fractious woman should not be enabled to harass her husband by making an application at any place very far from the place where the husband resides after their separation, and it seems to me that having regard to these rival claims of the two spouses the legislature limited the jurisdiction under Section 488 to the district where the husband resides, that is to say, the jurisdiction was given to any magistrate in the district so long as the husband was resident in the district over which the magistrate held jurisdiction. 1 The exercise of jurisdiction under Section 488 was limited to Presidency Magistrate or a Magistrate of the first class and a first class Magistrate’s jurisdiction was defined by Section 12 of the old Code. The jurisdiction under Section 12(1) was conferred upon a Magistrate districtwise and it was with reference to that jurisdiction that it seems that provisions of other sections of the Code will have to be constructed, particularly Section 488(8). 2 Generally speaking proceeding whether civil, quasi-civil or quasicriminal can be instituted where cause of action arises. When the social purpose of Section 125 Criminal Procedure Code is to prevent vagrancy and destitution the cause of action for proceedings under Section 125 Criminal Procedure Code arises at the place where the person claiming maintenance is and is apt to face vagrancy and destitution. It is, no doubt true that proceedings can be instituted at the place where the defendant resides because that would be the place where ultimately the order of maintenance, if passed, would be enforced. Where the Code is silent on the point whether the father or the mother can institute proceedings at the place where he is, the general principle should apply. 3 Thus it is obvious that the old Code did not specifically provide that the helpless person may claim maintenance at the place where she or he is. It only specified that the person from whom maintenance is

1 2 3

Shantabai ibid. Shantabai ibid. Ganga Sharan Varshney vs. Shakuntala Devi, I (1990) DMC 71 All.

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Law of Maintenance

claimed ‘resides’, ‘is’ and where he last resided with his wife. In the new Code of Parliament clearly intended that the helpless person should be allowed to institute proceedings where he or she resides and, therefore, in Clause (b) of Section 126(1) the Parliament introduced ‘where he or his wife resides’. But in this clause the Parliament omitted mother or father. Then the Parliament intended to give facility to helpless person to claim maintenance at the place where he or she resides, omission of month of father in the said clause is accidental or inadvertent. The intention of the Parliament is clear that the helpless person should be given facility of claiming maintenance at the place where he or she resides. 1 Mention of the place of marriage in the pleading and evidence is necessary only for the purpose of the jurisdiction of the Court in which a proceeding can be initiated. For initiating a proceeding which Section 125, Criminal Procedure Code the place of marriage is quite irrelevant, because according to Sub-section (1) of Section 126, Criminal Procedure Code a proceeding under Section 125 may be taken against any person in any district where he is or where he, or his wife resides, or where he last resided with his wife, as the case may be, with the mother of the illegitimate child. 2 Section 126(1) Criminal Procedure Code lays down the jurisdiction of the Court where petition under Section 125 Criminal Procedure Code can be moved. A bare reading of this section shows that the application under Section 125 Criminal Procedure Code can be filed by aggrieved person in any district where he or she the resides or where he or she last resided together. After laying down this principle of law, on facts of the case it was held as under: ‘Police Station Chakia as well as Police Station Ram Nagar within the district of Varanasi. Her filling petition at Varansai and filing the same at Chakia where she was earlier residing does not make any difference. It is for the administrative convenience that in a district powers have been conferred upon various Judicial Magistrate in respect of various Police Station, but a Magistrate is not debarred under the law for passing any order or for entertaining any case of any other Police Station of the district. It may be a violation of administrative instructions and orders and not a violation of legal provisions and he violation of administrative instructions does not make an order illegal. The Chief Judicial Magistrate in the district can assign any case to any of the Magistrate under his control in that district. Even in 1 2

Ganga Sharan Varshney ibid. Veena Devi vs. Ashok Kumar Mandal, I (2001) DMC 177 Patna.

Summery remedy—Territorial Jurisdiction for attachment of salary

413

this case the order has been passed by the Chief Judicial Magistrate allowing retention of this case by the Additional Chief Judicial Magistrate at Varansai and that order cannot be said to be illegal. Even otherwise if a Magistrate having no territorial jurisdiction entertains a case and passes an order that order does not become illegal. It can be said the irregularity has been committed by the Magistrate but it cannot be said he has committed any illegality. The word ‘district’ has been specifically used under Section 126(1) Criminal Procedure Code.’ 1 According to clause (1)(b) of Section 126 Cr.P.C. the proceedings under Section 125 Cr.P.C. may be taken against any person in any district where he or his wife resides. The Dictionary meaning of “resides” is “to droll permanently or continuously; have a settled abode for a time; have one’s residence or domicile”. “Reside” means something more than a flying visit or a casual stay. There shall be an intention to stay for a period, the length of which depending upon the circumstances of each case. A person resides in a place if he makes it his abode permanently or even temporarily. In order to find out whether the petitioners actually resided or they had some intention to remain at a place and nor merely to pay a casual visit, it should be considered whether the period of stay was merely for a visit or for residence although temporary. 2

Territorial Jurisdiction for attachment of salary A warrant under Section 421(1) (a) has to be executed with the aid of Section 422 and a warrant under Section 421(1) (b) with the aid of Section 423. When concededly, the warrant is purported to be issued under Section 421(1)(a), such a warrant could be executed under Section 422 within the local jurisdiction of the Court. It could also extend to the attachment and sale of any such property outside such jurisdiction when it was endorsed by the District Magistrate within whose jurisdiction such property was found. But when no such endorsement from the District Magistrate was obtained, Section 466 steps in to cure the defect that no attachment made under the Code shall be deemed unlawful on account of any defect or want of form in the writ of attachment or other proceedings relating thereto. From No. 19 in the second Schedule, prescribed for the

1

2

Anand Prakash Gupta vs. Chief Judicial Magistrate, I (1996) DMC 211 All. Sadasivuni Pushpa vs. S. Divakar Rao, I (1985) 380 Orissa; Ananth Gopal Pai vs. Gopal Naryana Pai, II (1984) DMC 470 Karnataka.

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Law of Maintenance

purpose, discloses that it can be addressed to a police officer or even to any other person named by the Magistrate to execute a warrant. 1 Equally, the objection that the order as such was not executable in the State of J&K on account of the Code being not extended to that State is also of no substance because of the person to whom the warrant of attachment is directed is not immune from the order of the Court merely due to his placement in a territory to which the Code does not extend. 2

Time barred revision The law of limitation is well settled that every day’s delay has to be explained. Section 14 of the Limitation Act also provides that the period during which any party bonafidely carried on proceeding before some other court, not having jurisdiction, is to be excluded. 3 It was held that the argument that if a revision was pending under any wrong advice even then the period during which the revision was pending may be excluded. Taking an indulgent view even the period spent in proceeding for setting aside the ex parte judgment as per application preferred could also be excluded for argument sake. But when that also did not cover the entire period, on facts the revision was held to be not entertainable. 4

Transfer of proceedings Although Section 192(2) of the Code does not apply there is no legal bar to transfer the case administratively to any other Magistrate to the First Class competent to hear and decide the application under Section 125 of the Code. 5

Void marriage See under Nullity Marriage.

Voidable marriage A wife whose marriage is in contravention of Section 5 and 11 of Hindu Marriage Act cannot be treated as legally wedded wife who could successfully claim maintenance from the alleged husband. 6 1 2 3 4 5

6

Madhav Kumar Anand vs. Sudesh Kumar, II (1984) DMC 45 P&H. Madhav Kumar Anand ibid. Sheo Kumar vs. Kanta Devi, I (1984) DMC 180 All. Sheo Kumar ibid. Manowara Bibi vs. Abdus Samed Laskar, I (1983) DMC 227 Calcutta. Ramwati Gupta vs. State of U.P., II (1984) DMC 67 All.

Summery remedy—Wife abandoning husband

415

Wife abandoning husband In one case the non-petitioner tried his level best to keep the petitioner with him but the petitioner left the non-petitioner and started living with her father. The petitioner waited for a period of two years and finding no other alternative contracted a second marriage. The parties were Mohammedans and there was no offence committed by the non-petitioner in contracting the second marriage. Both the courts below held that it was the petitioner who was guilty in not living with the nonpetitioner, and if the petitioner on her own accord has left the house of the husband and is living with her father in these circumstances she cannot be held entitled to any maintenance from the non-petitioner. High Court held that it could not make a reappraisal of the evidence in a petition under Section 482 Cr.P.C. 1

1

Bhanwari Bai @ Ramji Bai vs. Mohd. Ishaq, II (1983) DMC 76 Raj.

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Law of Maintenance

Chapter 10

Enforcement of order SYNOPSIS Attachment and sale .......................416 Attachment of future salary ............417 Attachment of property ..................417 Attachment of provident fund & gratuity ...........................................417 Attachment of salary ......................418 Change in circumstance .................421 Charge on property ........................422 Compromise decree .......................423 Considerations ...............................423 Contempt proceedings ...................424 Death of husband ...........................424 Default in payment .........................425 Defence ..........................................425 Effect of Act of 1986.......................426 Effect of non payment on appeal ....427 Effective date..................................428 Execution of order..........................433

Future default ................................ 434 Hearing of appeal .......................... 434 Imprisonment of defaulting husband435 Inherent jurisdiction ...................... 438 Instalments..................................... 438 Limitation ...................................... 439 Moral duty ..................................... 441 Nature of right ............................... 441 Notice before warrant ................... 442 Place of execution ......................... 442 Procedure for recovery.................. 442 Recovery and modification ............ 444 Remedies available ........................ 444 Stay of order/ proceedings............. 445 Striking off defence ........................ 450 Subsequent events .......................... 451 Waiver ........................................... 451

Attachment and sale The expression ‘attachment and sale’ used in Section 421(1)(a) of the Code of Criminal Procedure does not necessarily mean tangible corporeal property; on the other hand, it includes ‘debt’ as well. If a person, from whom the fine amount is to be recovered in a criminal case, in the manner prescribed for the levy of fines, has no tangible movable property, but has only some assets of intangible movable property, it cannot definitely be said that the State shall not be entitled to recover the amount of fine or other amounts which are leviable as fine, by proceeding against the aforesaid intangible movable assets. Therefore, under Chapter IX of the Code of Criminal Procedure, it would be reasonable and legal to hold that the intangible movable assets of such a person would also be liable to be attached, for realising the amount of

Enforcement of order—Attachment of provident fund & gratuity

417

fine. Future salary can be attached for the past arrears under Section 42(1)(a), Criminal Procedure Code. 1

Attachment of future salary The provision of Section 421(1)(a) of the Code need not even be subjected to any strained interpretation so as to enable the Court to attach the salary of the person concerned. Clause (a) provides “for the levy of the amount by attachment of any moveable property belonging to the” person concerned. It is nobody’s case that money is not moveable property. The warrant issued under clause (a) becomes effective the moment the salary accrues due to the person concerned or when that money becomes payable to him and until then the direction contained in the attachment warrant remains dormant. In this view of the matter, it cannot be said that the salary payable to an employee is not amenable for a levy issued under clauses (a) referred to above. 2

Attachment of property By virtue of Section 125(3) of the Code of Criminal Procedure and an earlier judgment 3, warrant of arrest cannot be issued and the party defaulting in payment cannot be sent to civil imprisonment as a matter of first resort and that necessarily resort, prior in point of time, has to be made to attach the property. However it was held that in peculiar facts of this case, it cannot come to the rescue of petitioner. It was conceded that petitioner had no property so that the same could be put to auction with a view to provide maintenance to wife. There was persistent, default for paying the maintenance allowance to wife in the present case and therefore remand of the case directing the Magistrate in first resort to proceedings of attachment was held to be an exercise in futility. 4

Attachment of provident fund & gratuity In one case the ex-parte decree for divorce had already been passed and the matter was pending before the Family Court on application of the opposite party under order 9 rule 13 code of civil procedure. The apprehension of the opposite party was that the applicant is likely to leave and go away out of the jurisdiction of the Family Court and in such circumstances a restrain order be passed so that she may not be deprived of the legitimate claim. The opposite party had not obtained 1 2

3

4

Mani vs. Jayakumari, 1999(1) HLR 105 Madras. Rudraiah K.V. vs. Muddagangamma B.E., (1984) DMC 390 Karnataka. Raj Kumar vs. Krishna Kumari, 1984(2) Recent Cr Reports 434: 1984(2) Chandigrah Law Reporter 396 Jaivir vs. Santosh, II (1995) DMC 232 P&H.

418

Law of Maintenance

any judgment and order in her favour till the date of her application for the restrain order. Her only case was that the ex-parte decree for a divorce which was passed by the Family Court be recalled and the case be restored to its original number. On consideration of matter it was held that the Family Court took a drastic step and passed the impugned order without caring to look to the provisions of Section 60 (g) C.P.C., Further it was also clear that on the date when the impugned order was passed, the application for restoration was pending and there was no such proceedings pending before him in which such restrain order was called for. 1 On one hand, the Family Court stopped the source of income which was to be available to the applicant for payment for payment and the other order directs for making a payment of interim maintenance to the wife and son. The order was held to be patently illegal and without jurisdiction. 2

Attachment of salary Assuming that future salary can be attached for the recovery of past arrears of maintenance under Section 125(3) Criminal Procedure Code, it does not confer power to the Courts to attach the future salary for the future maintenance. By ordering the attachment of the salary for the future maintenance, it was held that the Magistrate exceeded his jurisdiction and in fact, he exercised the jurisdiction not really vested upon him under any of the provision of the Criminal Procedure Code. 3 If a person, from whom some amount is to be recovered towards the fine imposed on him according to law, or if some amount is to be recovered from him in the manner prescribed for the levy of fines, has no tangible moveable property, nor any moveable property, but he has only some assets of intangible moveable property, can it be said that the State shall not be entitled to recover the amount of fine, or other amounts which are leviable as fine, by proceedings against the aforesaid intangible moveable assets? That is certainly not the purpose, object or intendment of law. Again, if under the civil law, a creditor of such a person is entitled to attach intangible moveable assets for satisfying his private claim, can it be said that the creditor would be entitled to do so in law, but not the State or, for the purpose of Chapter IX of the Code of Criminal Procedure the neglected dependents of the said person? By all 1

2 3

Trilochan Singh vs. Kuljit Kaur & Two Others, I (1992) DMC 220 All. Trilochan Singh ibid. Mani vs. Jayakumari, 1999(1) HLR 105 Madras.

Enforcement of order—Attachment of salary

419

means, it would be reasonable and legal to hold, that the intangible moveable assets of such a person would be liable to be attached and sold for the purposes of levying the amount of fine or the amounts which are leviable as fine. 1 In the context of provisions contained in Chapter IX of the Code of Criminal Procedure, read with Section 421(1)(a) of the Code of Criminal Procedure, some High Court have taken views which support the aforesaid conclusion. In K.V. Rudraiah vs. Smt. B.S. Mudda Gangamma, 2 a Single Judge of the Karnataka High Court observed thus: “It the instant case, according to me, the provisions—Section 421(1)(i) of the Code—need not even be subjected to any strained interpretation so as to enable the Court to attach the salary of the person concerned. Clauses (a) provides “for the levy of the amount by attachment of any moveable properly belonging to the “person concerned”. It is nobody’s case that money is not moveable property. See Pichu Vadhiar v. Secretary of State for India in Council” 3. “I am unable to agree with him, and, with due respect the decision in Baldevi (1955 Cri.LJ 621) (Raj). The warrant issued under Clause (a) becomes effective the movement the salary accrues due to the person concerned or when that money becomes payable to him and until then the direction contained in the attachment warrant remains dormant. In this view of the matter it cannot be said that the salary payable to an employee is not amenable for a levy warrant issued under Clauses (a) referred to above.” In Madhave Kumar Anand vs. Sudesh Kumari 4 warrants were issued by the Magistrate for recovery of the maintenance allowance for the purpose from 17.5.1981 to 18.5.1982 and from 19.5.1982 to 18.2.1983 for attachment of salary when duly found in the office of the petitioner after it had been withdrawn from the Government Treasury. It was observed, that such warrant could, by no means, be called effecting attachment of future salary. The learned Single Judge of Punjab and Haryana High Court then proceed to observe: “It is precisely for this reason that Section 466 of the regarding objections to writs of attachment is brought in. cannot be forgotten that Section 125 Criminal Procedure provides a summary remedy to the wife or child to 1 2 3 4

Bhagwat vs. Baburao, II (1994) DMC 195 Bombay. 1985 Cr.LJ 707. (1917) 38 Ind Cases 986: 1917 (18) Cri.LJ 496 (Madras). II (1984) DMC 45.

Code For it Code, claim

420

Law of Maintenance

maintenance for herself in a standard of living which is neither luxurious nor penurious but is moderately consistent with the status of the family. No technical impediment in that direction, as is the mandate of the Code, can be allowed to frustrate that object or to cognate the process or proceedings. Thus the attachment orders passed by the learned Magistrate were, quite in order and cannot be quashed or modified in these proceedings.” In, Ahmed Pasha v. Wajid Unissa, 1 the decision of the Rajasthan High Court in Baldevi v. Ramnath 2 and the decision of Goa, Daman and Diu, Judicial Commissioner’s Court in Ali Khan v. Smt. Harjrambi and Another, 3 were considered. Pointing out that in those cases, it was held that the husband could not be said to have earned his future salary and that the salary could not be attached, it was observed: “With due respect, I find myself unable to agree with this view. It is now common practice that the salary of officials including clerks and the peons, is being attached by money lenders or by the Banks in execution of money decrees. If the salary is not available for seizure or the person, who gets the salary, cannot be said to have earned his future salary as opined by the learned Judge in the above two decisions the salary should not be available for attachment for money lenders or for the Banks even in the execution of a money decree. But Section 60 of Criminal Procedure Code itself provides for attachment of the salary to the extent indicated therein in execution of a money decree or a decree for maintenance. Hence, the view that the salary cannot be said to have been earned by the person and it cannot, therefore, be available for the seizure, is not in conformity with the provisions of Section 60. When a money lender or a Bank has got the right to attach the salary or an official to the extent indicated therein in execution of the money decree or maintenance decree, it is preposterous to say that a wife cannot seek for attachment of her husband’s salary for recovering the arrears of maintenance granted by the Magistrate under Section 125(3). A wife who is entitled to maintenance under Section 125 Criminal Procedure Code and who is also entitled to recover the arrears under Section 125(3), cannot be placed worst than a money lender. What is available under Section 60. Civil Procedure Code for a maintenance decree-holder, can also be made available under Section 125(3) Criminal Procedure Code for the recovery of arrears of maintenance.”

1 2 3

1983 Cri.LJ 479. 1955 Cri.LJ. 621. 1981 Cr. LJ 682.

Enforcement of order—Change in circumstance

421

In Re: Yerusuri Lakshminarayana Murthy, 1 yet another Single Judge of the Andhra Pradesh High Court observed: “Section 125 Criminal Procedure Code is designed to provide maintenance to a party who is unable to support herself or himself. Therefore, it is imperative on the part of the person against whom the decree is passed to comply with decree. Section 125(3) Criminal Procedure Code provides for enforcement of the decree and the said section says that and movable property can be attached. The expression movable property must be given wide interpretation. In my opinion the salary cannot be excluded from the category of movable property mentioned in Section 125(3) Criminal Procedure Code.” Chapter IX of the Code of Criminal Procedure itself had carved out a class of women, children and dependent weaklings by providing them with a statutory right to get maintenance from certain persons who were liable to maintain them. It was perfectly constitutional to hold that the aforesaid class deserved some special protection of law even in the matter of enforcement of the rights which were specially created for them by Chapter IX of the Code. 2

Change in circumstance It is true that Sub-section (4) and (5) of Section 125 of Criminal Procedure Code, 1973 as also Section 127 provide a remedy for alteration of the maintenance order passed by a Criminal Court. However, the would not be distinguishing factor for the purpose of holding that execution of a Civil Court’s decree can be resisted by raising a contention that the parties have resumed cohabitation. Section 25 of the said Act provides for the alteration of the amount of maintenance on proof of change of circumstances. It is needless to say that such an alteration would also include total quashing of the maintenance order if the circumstances are alleged and proved that such a quashing is necessary. The provisions of Section 18 and 25 of the Hindu Adoptions & Maintenance Act are practically similar to the provisions of Section 125 and 127 of the Criminal Procedure Code. Thus, on principle there cannot be any difference between an order by a Criminal Court under Section 125 and a decree by a Civil Court. In view of this position, the judgment-debtor can not successfully resist the execution of the decree on the ground that the husband and wife have resumed cohabitation after passing of the decree. 3

1 2 3

1986 Cr. LJ 1846. Bhagwat vs. Baburao, II (1994) DMC 195 Bombay. Neelakanta Muthuraja vs. Chinnammal, II (1999) DMC 176.

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Law of Maintenance

Section 25 of the Hindu Adoptions & Maintenance Act, 1956 is only a codification of the existing provision of the Hindu Law which always confers upon the Court to alter the maintenance where there is a material change in the circumstances. Briefly speaking, the law before the introduction of the Hindu Adoptions & Maintenance Act was that, where a decree was passed for maintenance and it contained provision for making an application to alter the quantum of the maintenance on account of change of circumstances, then and then only an application could be made. Otherwise, the Court had no jurisdiction to alter the amount of a decree by means of an application, and it was always essential to institute a suit for the purpose. The position has not changed under the Act. While Section 25 of the Hindu Marriage Act expressly lays down a procedure by way of an application, Section 25 of the Hindu Adoptions & Maintenance Act does not lay down any such procedure. Thus under Section 25 of the latter Act, alteration in the amount of maintenance fixed by a decree cannot be ordered by an application, unless there is provision in the decree itself granting liberty to the decree-holder to have such variation made by way of an application. In the absence of such provision, the amount of maintenance fixed by a decree can be varied only by way of a suit.1

Charge on property A charge will fasten on the property of a Hindu de hors the provisions of the Hindu Adoptions & Maintenance Act. That is the effect of Section 39 of the Transfer of Property Act. 2 Padmanabhan J. of the Madras High Court, elaborately discussed this aspect with reference to the case law available till then. The Hindu Law texts enjoin a mandatory duty upon the husband to maintain is wife. That duty is not dependant upon the husband’s possession of any property. A wife is treated under the ancient texts as a co-owner of her husband’s property though in a secondary sense. It is not open to a husband to effect an alienation of his properties, when such alienation has the effect of depriving her and other dependents of their maintenance. A wife is thus entitled to be maintained out of the profits of her husband’s property. The wife and children can therefore have a charge upon the properties of the husband and can enforce the same against a gratuitous transferee. 3

1 2

3

Neelakanta Muthuraja vs. Chinnammal, II (1999) DMC 176. Divakaran Pankajakshan vs. Bhargavy Chellamma, II (1985) DMC 486 Kerala. Divakaran Pankajakshan vs. Bhargavy Chellamma, II (1985) DMC 486 Kerala.

Enforcement of order—Considerations

423

It is not rare that after estrangement between the parties, the husband retaliates against the wife even by transferring his property, to spire her. The facts of the present case would indicate such a mala fide attempt on the part of the husband. 1

Compromise decree Where the parties have agreed to certain terms in the compromise, which do not relate to the suit and accordingly a decree is passed, the executing Court cannot refuse to execute the decree and such a compromising decree has got to be executed relating to all the matters for which there is a decree. 2 What has been agreed to is that for any reason, they could not live together, the wife would be entitled to execute the decree, irrespective of the question whose fault it is for separate living. It was held that there was nothing which was opposed to public policy. The parties wanted to put an end to further litigation and ultimately the husband agreed that the wife would be entitled to maintenance if she decides to live separately. 3 When a clause of the compromise decree, specifically enabled the wife to execute the decree and claim maintenance from the husband but the wife decided not to live with her husband it can not be held that the wife had waived any of her right in the decree. Under a clause of the compromise decree, she had specifically reserved her right to execute the decree notwithstanding the fact that she decided to live with her husband. When she has specifically reserved a right in her favour, there is no waiver on the part of the wife nor there is any abandonment of the decree on her side. 4

Considerations Magistrate found on scrutiny of the facts that the opposite party was not blame-worthy for the delay in accumulation of the maintenance. She was hampered from recovering the arrears of maintenance by the husband who repeatedly procured stay order from the higher courts resulting in accumulation of arrears. He had no objection for the payment of the accumulated amount of arrears of maintenance in two instalments.

1

2

3 4

Divakaran Pankajakshan vs. Bhargavy Chellamma, II (1985) DMC 486 Kerala. Kudupudi Lakshmi Veera Venkatarathnam vs. Kudipudi Sri Krishna Vara Prasad, 1999(1) HLR 312 AP. Kudupudi Lakshmi Veera Venkatarathnam ibid. Kudupudi Lakshmi Veera Venkatarathnam ibid.

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Law of Maintenance

Having considered all these points the Magistrate disposed of the matter by a brief order which cannot be regarded as illegal. 1

Contempt proceedings “Civil Contempt of Court” as defined in Section 2(b) of ‘the Act’ means “wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or will breach of an undertaking given to a Court”. In this case the order directing the respondent to pay litigation expenses and maintenance pendente lite was not complied with. It was observed as under: ‘Wilful means deliberately, intentionally, self willed. The respondent is admittedly a Major in the Army. He is getting more than Rs. 3000/- per month as salary. He has not paid a penny in compliance of the order. He has not, even expressed his willingness to pay the said amount in small instalments. In the facts and circumstances of the case there cannot be any doubt that the non-compliance of the said order was wilful.’ 2 In the contempt proceeding Court is not warranted to sit on judgment as to the correctness, legality or validity of the order. The Court, in contempt proceeding, cannot and will not enquire into the merits of the order. The party who has been directed to do something by an order of this Court cannot assail such order in the contempt proceeding initiated against him for its breach. The order passed by this Court so long as it stands, has got to be obeyed and its intentional and/or deliberate violation is punishable as contempt. In other words so long as the order has not been vacated or modified by the Court granting it, or has not been reversed or stayed by the Appellate Court, the order must be obeyed. 3

Death of husband In law, a maintenance decree would not make any difference. It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefit under the decree to be lost unless thereby any special reason for it. If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree. 1 2

3

Virender Kumar Seth vs. Roopa Seth, I (1989) DMC 210 All. Vrinda Anand vs. (Maj.) Arun Anand, II (1986) DMC 341 Delhi; Narinder Kaur vs. Pritam Singh, I (1985) DMC 181 Delhi: (1987) Marri LJ 85 Shaheda Sarwar Khan vs. Sarwar Ahmed Rauf Khan, II (2000) DMC 195 Bombay.

Enforcement of order—Defence

425

There is no rationality in the contention that a decree for maintenance or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband’s property would not get so extinguished. A decree against the husband is executable against the estate of the husband in the hands of the heirs and there is no personal liability. The decree indicates that maintenance was payable during the life-time of the widow. To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree. 1

Default in payment The defaulter could be sentenced to imprisonment for a period of one year at the most as the wife or the other persons entitled to maintenance allowance are required to file an application within a period of one year from the date on which the amount becomes due. Accepting this contention it was ordered as under: In the case in hand, the amount of the maintenance allowance from the date of application i.e. 27.1.1982 to 26.1.1983 became due only when the Judicial Magistrate passed the parent order on 3.10.1983. The application for execution having been filed on 15.10.1984, is certainly barred by time in view of the provisions of proviso (i) to Sub-section (3) Section 125 of the Code. Although in this application the arrears from 27.1.1982 to 26.1.1982 had been claimed, the petitioner could have claimed arrears of maintenance allowance from 15.10.1983 onwards. Thus, the order of the Trial Court in sentencing the petitioner to imprisonment for one year and ten months is certainly illegal being violative of the above-referred mandate of the legislature contained in proviso (i) to Sub-section (3) of Section 125 of the Code. Consequently, the impugned order is party set aside by accepting this petition to the extent that the petitioner would be liable to undergo imprisonment for one year only for arrears of maintenance allowance from 15.10.1983 to 14.10.1984. 2

Defence Unless and until the order of maintenance passed under Section 125 of the Code is varied, altered or set aside under the provisions of the Code, it is not open for the husband to contend that he is not liable to make payment of maintenance allowance. 3 An application for enforcement of maintenance allowance is not an application for execution. As such it is the duty of the Court to see 1 2 3

Nagamma vs. Ningamma, II (1999) DMC 681 Karnataka. Sethi Singh vs. Jass Kaur, II (1992) DMC 249 P&H. Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani, I (1993) DMC 544 Guj.

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Law of Maintenance

that its order of maintenance under Section 125 of the Code is complied with unless and until that order is modified or altered or set aside in the competent proceedings under the provisions of Section 125(4)(5) and/or under Section 127 of the Code. It is also settled proposition of law that any defence against an order passed under Section 125 of the Code ought to be founded on a provision in the Code. Section 125 of the Code is devised and designed to protect the weaker of the two parties, namely, the rejected or dejected wife. There can be no any other dispute about the settled proposition of law that if an order for maintenance has been passed under Section 125 of the Code, against the deserter it shall be binding and operating until it is altered or vacated in terms of the provisions of the Code itself. Code is complete on the topic and any defence against an order passed under Section 125 of the Code must be founded on a provision in the Code itself. Until that is done it is enforceable and no plea that there has been change in circumstances of passing of any order under Section 24 of the Hindu Marriage Act or any other plea can be permitted to be raised. 1 An order for payment of maintenance may be cancelled for any other reasons contained in Sub-sec. (5) of Section 125. So under Section 125 such an order can be varied or even cancelled on the grounds mentioned therein but as long as such an order is subsisting there is no ground on which the respondent could be allowed to object to the enforcement of the maintenance order. 2

Effect of Act of 1986 The very fact that the legislature has used the word ‘application by a divorced woman’ as the first pre-requisite condition, it shows that the legislature was of the opinion that merely by moving an application under Section 127 or 125 Criminal Procedure Code, the husband cannot take the benefit of Section 7 of the Act. The other salient feature of Section 7 is that the said application was pending on the commencement of this new Act of 1986 which means that on the date when the Act came into force, there must be pending proceeding under Section 125 or 127. The application by the petitioner-husband in one case was moved after the Act came into force and, therefore, it cannot be said that it was pending even after the Act came into force. There is well established principle of interpretation of a statute that legislature never us superfluous words. If the legislature would have simply said that all 1

2

Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani, I (1993) DMC 544 Guj. Hansaben Rameshkumar Patani ibid.

Enforcement of order—Effect of non payment on appeal

427

proceedings under Chapter IX of the Criminal Procedure Code would be governed by the new Act of 1986, the probably what the petitioner wants to argue before this Court would have been justified. The legislature did not use the words ‘Chapter IX of the Criminal Procedure Code’ and also excluded Section 128 Criminal Procedure Code which is for enforcement of order of maintenance, in Section 7 of the new Act of 1986. It is not insignificant, but more significant. So far as maintenance is concerned even for the case of divorced Muslim woman, they would get the benefit of the order passed in their favour before the commencement of the Act of 1986 and the enforcement of the order could be made. Non-inclusion of Section 128 in Section 7 of the Act of 1986 pointed out towards the intention of legislature that they never wanted to stop the payment of maintenance of divorced Muslim women which became entitled on account of earlier judgment. 1

Effect of non payment on appeal In one case while considering Section 24 of the Hindu Marriage Act, 1955, Sri B.C. Misra J. observed as under: “………The object behind the provision of law is to provide financial assistance to the indigent spouse to maintain herself (or himself, as the case may be) during the pendency of the proceeding and also to have sufficient funds to defend or carry on the litigation, so that the spouse does not unduly suffer in the conduct of the case for want of funds.” 2 It was noticed by Rajasthan High Court 3 as under:— “……In appears from a bare perusal of the provisions of Section 24 of the Act that the provision has been made in order to provide means to the spouse who has no independent source of income to contest a matrimonial processing. The indigent spouse should be allowed to obtain the requisite maintenance and litigation expenses from the other party, soon after the filling of the application under Section 24 of the Act, in order that the indigent spouse could maintain herself during the pendency of the proceedings, and the also incur the legitimate expenses for contesting the matrimonial dispute.” After referring to the above object it has been held that where the orders are not complied with by the husband in the appeals under the 1

2 3

Idris Ali vs. Ramesha Khatun, I (1990) DMC 107 Gauhati: AIR (1989) Gau 24: (1988) 2 Gauhati LR 202: (1989) 1 Cri LC 201: 1989 Mat LR 125. Chitra Lekha (Smt.) vs. Ranjit Rai, AIR 1977 Delhi 176. Bhanwarlal vs. Smt. Kamla Devi AIR 1983 Raj 229: 1983 Rajasthan Law Reporter 314: 1983 Rajasthan LR 640: 1983 WLN 322: 1983 Mah LR 268: 1983 (2) Civ LJ 220.

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Law of Maintenance

Act, then if he is the appellant, his appeal should be dismissed and if he is the respondent, the appeal should be allowed against him. 1

Effective date In interpreting this section it must be borne in mind the purpose of the provisions of Chapter IX relating to maintenance. This purpose is to prevent to control vagrancy and destitution in the cases of wives, children and parents. When a destitute wife, child or parent approaches the criminal court and satisfies the court of the existence of the conditions for passing an order under Section 125 of the Code. In the normal course, the applicant must get maintenance from the date of the petition, that is, the date on which he approached the court. There is no provision in Chapter IX of the Code, which takes away the power of the court to direct payment of maintenance from the date of the petition but, on the other hand such power is recognised or reserved under Section 125(2) of the Code. A court may omit to mention date from which the maintenance order is to take effect. The court may specifically direct the order to take effect from the date of the petition. The court may also direct order to take effect from the date of the order. Sub-section (2) of Section 125 of the Code means only that where court has no specifically directed that the order shall take effect from the date of the petition or where the order is silent on the point, it shall be payable from the date of order. It cannot be said that whenever a Court gives a specific direction either way, it must be supported by reasons recorded in writing. It is open to the court to take either view and incorporate it in the judgment. Considering the purpose of the provisions of Chapter IX of the Code and the specific object they seek to achieve, the Court has full discretion to direct that the allowance is payable from the date of the petitioner. 2 The plain language of the provision makes it clear that if the Court does not specially indicates the date from which maintenance shall be payable, it should be taken to have been ordered from the date of order. If the order itself indicates the maintenance shall be payable from the date of application or from the date of order, there can be no ambiguity and the parties know from what date the maintenance becomes payable. Ambiguity would arise and parties would be put to difficulty where the order is silent as regards the date from which the maintenance is payable. It is to meet such contingencies that Section 125(2) of the Code lays down that such allowance shall be payable from the date of order. If the provision is only to the effect that it shall be payable from the date of order, there will be no discretion left to the Court to make 1 2

Sarbati vs. Sahi Ram, I (1985) DMC 144 Rajasthan. Mani vs. Isther, (1980) Kerala Law Times 969.

Enforcement of order—Effective date

429

maintenance payable from the date of application. Therefore, the words following: “if so ordered, from the date of application” have been incorporated. There is another purpose also underlying Section 125(2). That is to fix the outer limit of date from which the order is to take effect. 1 Even in a civil suit for future maintenance, the Court is required to pass a decree for maintenance from the date of the suit. Ordinarily, Courts look to the state of affairs, prevailing on the date of the suit. Where a litigation is prolonged unduly, either on account of the conduct of the opposite party, or on account of the heavy docket in Court for other unavoidable reasons, it would be unjust and contrary to the very purpose of the provision to postpone the effectuation of the order to the date of the order. Such postponement deprives the claimant of the benefit of the fruits of a decree which he or she could have obtained through a Civil Court. Looking at the matter from this perspective also, there is justification to say that ordinarily the claimant who seeks an order for maintenance under Section 125 of the Code shall obtain the relief from the date when she or he approached the Court i.e., the date of application and only where there are circumstances justifying a contrary view, it can be postponed to the date of the order. 2 It is pertinent to notice that taking into consideration the object behind Section 125 the Supreme Court has held there is inherent power even to make an interim order for payment of maintenance till the disposal of the application under Section 125. 3 In one case it was established that there was no justification whatsoever for the husband to neglect to maintain his wife, the husband was a moneyed person, the wife depended solely on the mercy of father who has himself a poor primary school teacher, the husband had behaved very badly with the wife throughout and had even married second wife. On the top of it, he has given a false offer to maintain the wife. If in this back ground the learned Magistrate has exercised the discretion vested in him in favour of granting maintenance allowance from the date of the application, it is difficult to see any scope in Revisional jurisdiction to interfere with the said discretion. Indeed, in situation like this, maintenance allowance can be refused from the date of application only for compelling reasons. Though the background is somewhat different, more or less the same approach has been adopted by the Delhi High Court4. This has 1 2 3 4

Saroj Bai vs. Jai Kumar Jain, II (1995) DMC 589 MP. Saroj Bai vs. Jai Kumar Jain ibid. Savitri Govind v. Govind Singh, 1985 Mah. LJ 977. Makhdum Ali v. Nargis Bano, 1983 Cri LJ 111.

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Law of Maintenance

been the consistent approach of various Courts since long. In one such old case1 revisional jurisdiction was used for the first time to direct maintenance from the date of application. The reasons which weighed with the Court were that neither husband nor any member of his family deserved any sympathy or consideration because they had behaved badly with the wife.2 The applicant was forcibly turned out by the husband-opponent who never cared or tried to bring back the applicant and on the contrary married another woman. In such circumstances, it is not difficult to conceive that the applicant was driven to seek help and obligation of other quite unwillingly to order in order to survive during the period of litigation. The husband having not cared for the maintenance of the applicant-wife during the period of litigation nor having made any attempt to bring her back till the filing of the application would not be justified in contending that the applicant should not have been allowed maintenance for the period of litigation.3 Section 24 of the Act, does not specify that the amount of maintenance which is awarded under the said provision is to be paid from the date, the petition for divorce is filed. It is for the Court to consider this circumstances and it may award the maintenance from the date the application is fixed on from the date the order is passed. It is the discretion of the Court which is exercised after taking into consideration various facts.4 On the point of arrears, it was found that there were lapses on the part of the petitioner herself. She was being maintained by her parents and brothers for quite some time. When she had felt that her parents and brothers were unable to maintain her, she moved an application for maintenance. In these circumstances, it was held that for the delay in moving the Court, the arrears of maintenance may not be allowed. Therefore, the petitioner was held entitled to claim maintenance at the rate of Rs. 200/- per month from the date of order passed by the Court.5 The proceedings under Section 125 Criminal Procedure Code lingered on to nearly 5 years and wife was not only feeling the mouths of her children in these hard days but also spent money for prosecuting her application under Section 125, Criminal Procedure Code and it was only after a lapse of so many years when the order granting maintenance was 1 2 3 4

5

Hemibai vs. Kundibai , AIR 1940 Sind 228. Sharda vs. Gunwantroa, II (1988) DMC 10 Bombay. Ganga Bai vs. Shivram, II (1988) DMC 340 MP. Asha Sharma vs. Judge, Meerut &Anr. Family Court, II (1995) DMC 67 All. Khilan Devi vs. Amar Singh, II (1995) DMC 122 MP.

Enforcement of order—Effective date

431

passed. It was held that, the delay in disposal of the proceedings under Section 125 Criminal Procedure Code is by itself a sufficient ground to grant maintenance to the wife from the date of application. The wife cannot be made to suffer on account of delay in disposal of application for maintenance. 1 On the question as to from which date the amount of mantenance should be granted, it was observed: The provisions of Sub-section (2) of Section 125 Criminal Procedure Code have not been held to be mandatory or obligatory and the special reason for granting maintenance allowance from the date of the application have also not been considered necessary, if the disposal of the proceedings itself makes out a prima facie case for delay without any fault on the part of the lady. The cases in which this Court has held that the reasons should be recorded expressly have been consistently followed. However, it was never considered whether the provisions contained in Sub-section (2) of Section 125 Criminal Procedure Code were ultra vires on the touch stone of reasonableness as enshrined under Articles 14 of the Constitution of India. The orders of maintenance granted by the lower Court have been challenged in this Court frequently on the ground that the order of maintenance with effect from the date of the application is illegal and is liable to be quashed. It appears therefore necessary to examine the legality or otherwise of the provisions contained in Sub-section (2) of Section 125 Criminal Procedure Code. It was further observed as under: The claim for maintenance is a substantial right of the person mentioned in Sub-section (1) of Section 125 Criminal Procedure Code. It arises from the date when the person having sufficient means and legally liable to maintain, neglects or refuses to maintain. True, if the Claimant does not himself or herself initiate proceedings before the Competent Magistrate for grant of maintenance, no maintenance can be granted for the period during which such claim has not been made. It is but natural because even the mother does not provide milk to her child without the latter crying. The claim under any existing law are enforced normally only from the date of the receipt of application or the claim having been preferred but once a claim arising out of a legal right or obligation has been presented to a Competent Authority under the law, it becomes payable from the date of the claim itself. If there is anything special to deny the claim from that date of demand, special reasons will be required to be recorded. But here the impugned provision contained in Subsection (2) of Section 125 Criminal Procedure Code reverses the general proposition of law and the nature. This provision appears to me to be opposed to good conscience, equity and fair play. 1

Satish Chandra Gupta vs. Aneeta, I (1995) DMC 173 All.

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Law of Maintenance

After the above analysis it was held as under: The claimant cannot be made to suffer for any act or omission on the part of any Court or any authority without any fault on the part of the claimant. If the Court or the authority does not or fails to discharge its statutory duty, the claimant cannot suffer for the period or failure of such statutory duty. In the proceedings for maintenance under Section 125 Criminal Procedure Code the claimant in the helpless condition and circumstances prays for grant of maintenance but if the Magistrate or the Court takes long time in serving the notice of the proceedings on the opposite party or the latter neglects the proceedings or the Court prolongs the proceedings for one or the other reason, the applicant cannot be made to suffer. He or she has no control over the conduct and disposal of the proceedings under Section 125 Criminal Procedure Code. The husband always adopts dilatory tactics to avoid his liability and also takes other proceedings to thwart the claim of the wife. The experience of the cases coming up before the Court shows that the husbands have started denying even the basic fact of their marriage with the wife and in some cases they have instituted proceedings for restitution of conjugal rights without any intention on their part to keep the wife together but only to dispute her claim for a reasonable cause to live separately. If all these objections pleas have to be adjudicated detailed evidence has to be given before the Court or the Magistrate, unnaturally it would delay the disposal of the proceedings. The Court or the Magistrate may also omit to record reasons while granting application for maintenance from the date of application. The claimant cannot be in a position to dictate the terms to the Court or to give directions to the Court how to write a judgment and order or what to write in the order so as to make it operative from the date of the application. If these circumstances, a legal claim justified be evidence is granted with effect from the date of the order, pursuant to Sub-section (2) Section 125 Criminal Procedure Code by the Court of the Magistrate, it pricks judicial conscience, equity and fairplay to deny the payment of maintenance to the lady from the date of her application. It is for these reasons that this Court and the Madhya Pradesh High Court have in the cases referred to above held that the recording of special reasons is not essential for granting maintenance from the date of the application. 1 Ordinary rule is that maintenance to wife is payable from the date of order. Exception to this ordinary rule is an order making maintenance payable from the date of application. When an exception has to be made in the ordinary rule making the maintenance payable from the date of

1

Basant Lal vs. State of U.P., I (1995) DMC 507 All.

Enforcement of order—Execution of order

433

application by an order, the order must be supported by reason or reasons. 1 The maintenance granted from the date of the application was not justified as there is no specific reason to grant the same; the maintenance however could be allowed from the date of the order. The maintenance has been allowed from 8 th of October, 1984 which is the date of the application. No specific reasons have been given by the Court below for granting maintenance from the date of the application. In the normal course, maintenance is to be allowed from the date of the order. Proper order should have been is to allow maintenance from the date of the order passed by the Court. 2 In one case the lower Court directed payment of interim maintenance from the date of making of the order but no reason had been assigned for so doing and the date of commencement of the order appeared to have been fixed arbitrarily. The narration of facts by the lower court, however, indicated that the applicant was in service upto a certain date but thereafter, she did not serve and had no independent source of income. It was therefore held to be just under the circumstances of the case to grant to her the interim maintenance under Section 24 of the Act from the month when she had stopped working. This was so because it was only from this period that she can be said to have no independent income sufficient for her support. 3

Execution of order In one case the amount of Rs. 100/- was fixed in the year, 1986. Since then, the child had grown and it was important for his welfare that he should get proper education and, therefore, there was no legal bar against applying for increase of the maintenance amount under the provisions of Section 127 Criminal Procedure Code. When the appeal was pending before High Court and heard, the Court will naturally take note of the fact that the amount of maintenance, so far as minor child is concerned, has already been increased from Rs. 100/- to Rs. 300/- per month. There is no reason why the child should suffer so far as his

1

2 3

Dharmedra Kumar Gupta vs. Chandra Prabha Devi, II (1991) DMC 158 All. Shyamlal vs. MST. Angooribai, II (1995) DMC 183 MP. Tripta Chhabra vs. Ajit Kumar Chhabara, II (1989) DMC 178 MP; Gouri Das vs. Pradyumna Kumar Das, II (1986) DMC 189 Orissa; Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116 Delhi.

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Law of Maintenance

welfare is concerned, merely because the appeal takes time to be decided, in the Court. 1

Future default Section 125(3) Criminal Procedure Code provides that if any person ordered to pay maintenance fails without sufficient cause to comply with the order the Magistrate may for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made. So far as future maintenance allowance is concerned, it was observed as under: ‘The monthly amount of maintenance becomes due on 22 nd of every month and, therefore, the maintenance amount with respect to the period from November 21, 1984 to December 20, 1985 will become due only on December 22, 1985. In the instant case, the Judicial Magistrate had passed a recurring or running order assuming that the petitioner would commit a breach of the order in future as well. This could not be done by the Judicial Magistrate because in view of the express language of Section 125(3) for every breach of the order, the Judicial Magistrate has to issue a warrant for levying the amount due in the manner provided for levying fines. It may be that with respect to the future period, the petitioner may himself voluntarily pay the maintenance amount to avoid the sentence of imprisonment which is the consequences of non-payment of the whole or any part of each month’s allowance. The order of the Judicial Magistrate, Malpura, directing the Chairman of Hindustan Aluminium Company Renikoot for deducting the amount of Rs. 500/- every month from the salary of the petitioner and to remit the amount to his court is against the provision of Section 125(3) Criminal Procedure Code. It may also be mentioned that the petitioner has not paid any maintenance allowance to the non-petitioner even after the date she had filed application before the Judicial Magistrate on December 12, 1985. The Magistrate can of course include in the warrant the amount of arrears of maintenance which had become due for the period from December 12, 1985 to date.’ 2

Hearing of appeal An appellant was represented by a counsel. The respondent wife was not in a position to engage a counsel unless litigation expenses are 1 2

Tara Chand vs. Rinku, II (1992) DMC 435 Raj. Govind Sahai vs. Prem Devi, I (1988) DMC 122 Raj.

Enforcement of order—Imprisonment of defaulting husband

435

paid. Failure to comply with order under Section 24 of the Act is intentional. If the appellant does not pay litigation expenses and maintenance to the respondent his appeal cannot be heard. It would be an injustice to the respondent if the appeal is heard in the absence of a counsel for her. The order directing the appellant to pay litigation expenses and maintenance to the respondent wife under Section 24 of the Act is in the nature of a step for the prosecution of the appeal. As the appellant has not complied with the said order, the appellant cannot be heard is support of his appeal. 1

Imprisonment of defaulting husband The provision of Chapter IX of the Code are enacted with a specific purpose which is benevolent and for protection of weaker section of the society. The said provisions have been specifically enacted for providing wherewithal to hapless, discarded wives and children who require the shelter and protection of the law. Such persons cannot be left searching for the bread and sanctuary risking their souls and virtues. When a discarded wife prefers in application in the Court claiming alimony from her husband on the ground of neglect and refusal to maintain herself, the Court has to order such husband to make payment of necessary allowance for her maintenance if she proves that her husband having sufficient means neglected and refused to maintain her who happens to be without sufficient means. If such husband neglects or does not pay such alimony to such wife, the Court has to either recover that amount by the procedure laid down by law or to send such a husband to imprisonment for the purpose of making him to pay such alimony to such discarded wife. When that wife is begging for alimony, coming to the Court for getting alimony from husband for her maintenance, it would be not only cruel but would be unjust also to ask her to make payment of the expenses for maintaining such husband during his imprisonment. That is not spirit behind the provisions which have been embodied in Chapter IX of the Code. Said imprisonment is to be consistent with “sentence”, “imprisonment” indicated by Criminal Procedure Code, 1973, Section 29, 30. It should not be as indicated by Civil Procedure Code. 2 Whether a person, who has defaulted in the payment of maintenance ordered under Section 125 Criminal Procedure Code can be sentenced to imprisonment for a period of more than one moths has benn subject matter of consideration by courts. 1

2

Ram Narain vs. Darpoti Devi, I (1983) DMC 153 Delhi: 1983 Rajdhani LR 4: AIR 1983 Delhi 346. Anuradha Pal vs. Jeewan Pal, I (1996) DMC 207 MP.

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Law of Maintenance

In Karson Ramji Chawda’s case 1, when the order of the Magistrate was challenged on the ground that in passing the sentence of two moths, the Magistrate exceed the jurisdiction conferred upon him under Section 488(3), Criminal Procedure Code, the Full Bench of the Bombay High Court while repelling the said contention, observed as follows:— “Therefore, if we read the provision with regard to the power of the Magistrate to sentence the applicant independently of the power to issue the warrant, it is clear that the power to sentence is for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extent to one moth or until payment if sooner made. Now these words clearly lay down the power of the Magistrate. The power of the Magistrate is in respect of whole or any part of each month’s allowance remaining unpaid to sentences the applicant for a term not exceeding one month.” In the above case, two months’ imprisonment for non payment of four month’s allowance was held to be legal. The Division Bench of the Calcutta High Court, in Moddari Bin vs. Sukdeo Bin, 2 while dealing with the question whether under Section 488(3), Criminal Procedure Code, the punishment should be limited only to a period of one month as the maximum, observed as follows: “…..…The maximum of one month in our view, this in context and on proper interpretation of the language of the section is relatable to a period of the arrear for one month is punishable by one month’s imprisonment and no more. If the default is more than one month then the imprisonment can he for as many months of default subject to a maximum of 12 months. The question here is whether a default of 9 months which had occurred could be punishable with six moths’ imprisonment which the Magistrate here has ordered. On the authorities and on the construction of Section 488(3) Criminal Procedure Code we have come to the conclusion that the Magistrate can make an order for six month’ imprisonment for nine months default. In fact the maximum imprisonment which he on the present facts could have given was 9 months, but he has given less……..” So, in the above case, six months’ imprisonment for non-payment of nine months’ allowance was held to be legal. In Kashmir Singh vs. Kartar Kaur, 3 relying on the Karson Ramji Chawda’s case and Moddari Bin’s case, the Rajasthan High Court 1 2 3

Karson Ramji Chawda vs. State of Bombay, AIR 1958 Bom 99 FB AIR 1967 Cal. 136. 1988 (2) Crimes 44.

Enforcement of order—Imprisonment of defaulting husband

437

observed that as 11 moths’ maintenance was due, the Magistrate could have ordered imprisonment to the extent of 11 months, while upholding the order of the Magistrate sentencing the husband to only 6 months’ imprisonment. Therefore the contention that whatever the arrears, the maximum period of imprisonment that can be ordered is only one month, was held to be not tenable. 1 Another view is that the language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach or non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. 2 A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a ‘mode of enforcement’. It is not a ‘mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance ‘without sufficient cause’ to comply with the order. It would indeed be strange to hold that a person who ‘without reasonable cause’ refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the funds, no useful purpose would be served by 1 2

Bhakta Bhuyan vs. Savitri Bhuyan, I (1991) DMC 542 Orissa. Shahada Khatoon vs. Amjad Ali, I (2000) DMC 313 SC.

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Law of Maintenance

sending the husband to jail. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. It is not a mode of discharging liability. The section does not say so. The Parliament in its wisdom has not said so. Commonsense does not support such a construction. From where does the Court draw inspiration for persuading itself that the liability arising under the order for maintenance would stand discharged upon an effort being made to recover it? The order for monthly allowance can be discharged only upon the monthly allowance being recovered. The liability cannot be taken to have been discharged by sending the person liable to pay the monthly allowance, to jail. At the cost of repetition it may be stated that it is only a mode or method of recovery and not a substitute for recovery. 1

Inherent jurisdiction The Court has inherent jurisdiction under Section 151 of the Code of Civil Procedure, to give affect to its order. It has inherent jurisdiction to prevent the abuse of the process of the Court. In giving effect to its order, the Court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. Instead of exercising the jurisdiction so vested in the Court, the lower Court has thrown its hands in despair and has offered a gratuitous legal opinion to the revision petitioner to file an execution petition, which, as stated by Banerjee, J. 2, is not an easy going highway, and is beset with all imponderables and practical difficulties. 3

Instalments In order to avoid the hardship to both the parties and keeping in view the income of the husband, it was directed to pay arrears of maintenance allowance in easy instalments to the tune of Rs. 400/- per month. It was however provided that in case he commits default in payment of any of these instalments, the respondent shall be entitled to realise the amount in lump sum. 4

1

2 3 4

Kuldip Kaur vs. Surinder Singh, AIR 1989 SC 232: 1989 CrLJ 794: 1989 SCC (Cr) 171: 1989 CAR 9: 1989 CrLR (SC) 25: 1989 (1) Crimes 1: 1989 MPLJ 1. in Anita Karmokar’s case reported at AIR 1962 Cal. 88 Mangalam vs. P.S. Krishna Pillai, II (1992) DMC 545 Ker. Kanwal Nain vs. Shashi Bala @ Rachna, I (1992) DMC 529.

Enforcement of order—Limitation

439

Limitation The amount of maintenance shall be deemed having become due from the date of the order by the trial Magistrate, if no revision is preferred or stay obtained against the said order. However, if the aggrieved party prefers a revision petition and obtains a stay order or in any way prevents the execution of the order, it will not lie in his mouth to urge subsequently that the order cannot be executed on the ground of having become barred by time only because the proceedings remained pending in a higher Court. Similarly the mere pendency of the revision petition without there being any stay or other intervening circumstance preventing the claimant from filing the petition, would not condone the delay because in that event the amount found due would be deemed to be due from the date of order of the trial Magistrate, because the same became effective and was not prevented or obstructed to be executed. No party can sleep over its rights merely on the pretext that some revision petition is pending even though the Revisional Court has chosen not pass any order staying the execution of the order granting maintenance. If the Revisional Court does not stay the operation of the order or its execution with the intention of achieving the object of granting the maintenance to the deserted wife or children, the claimants or the beneficiaries cannot be allowed to sleep over their rights and not to agitate the matter merely because the higher Court is seized of the matter despite the fact that the execution of the order had not been stayed. The period of limitation would commence from the date of the decision of the application or from the date when the same became final, if its operation had been stayed by the Revisional Court. 1 When the application under Section 128, Criminal Procedure Code was made for the recovery of the amount for 17 months, the Trial Court could not have issued the warrant for recovery of the amount for a period of five months. Thus, the warrant for claim of maintenance issued by the Trial Court for a period beyond one year which includes five months is illegal. 2 The maximum period of limitation for the execution of that decree is twelve years from the date when the decree becomes enforceable. It is time and again said by various authoritative pronouncements of the Apex Court that this Article should receive a fair and liberal and not a technical construction, with a view to enable the decree-holder to reap the fruits of the decree and it will not be in consonance with the principles of just interpretation to strain the 1 2

Gurdeep Singh vs. Satya Devi, I (1988) DMC 236 J&K. Chandrashekhar vs. Sau. Jayshree, I (1989) DMC 235 Bombay.

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Law of Maintenance

language of the Article in favour of the judgment-debtor, who had paid his just dues. Under the decree, the decree-holder acquires a vested and that right which cannot be taken away except under clear and unambiguous enactment. It would not be desirable to hold a decree to be barred by time unless it is absolutely necessary to do so. 1 In this case, trial judge seems to have confused with the relief sought in the execution petition. The learned trial Judge seems to be under the impression that by filing the execution petition, petitioner is claiming arrears of maintenance, which in fact is the wrong assumption and in fact what the petitioner/decree-holder was seeking by filing the execution petition is to enforce the decree made by the Trial Court. There is essential distinction between a suit for recovery of maintenance and enforcement of decree for maintenance. In the first case, the Law of Limitation as envisaged under Article 105 applies and in the second case, Article 126 of the Limitation Act applies. The process of execution is nothing but enforcement of decrees and orders of Courts by the process of the Court, whereby the party entitled to the benefit of a judgment may obtain that benefit from any person against whom a decree has been passed. It is well-settled law that the function of the Executing Court is to carry into effect the decree of the Trial Court. Its powers are for this purpose, limited to its deciding the questions relating to the execution, discharge of satisfaction of the decree sought to be executed. It has no powers to determine the rights of the parties with regard to all or any of the matters in controversy in the suit. It is bound to execute the decree and cannot go behind the decree and the only exception to this rule is that when a decree is passed by a Court which has no jurisdiction to pass in then by reason of inherent defect in the jurisdiction of the Court passing the decree, the Executing Court can ignore it, since it is a nullity. A decree is binding and conclusive until it is set aside. The Court executing it cannot ordinarily enter into the enquiry that it was passed without jurisdiction or was not passed according to law. 2 Acquiescence of the opposite party cannot confer jurisdiction on the Magistrate to enlarge the same. In certain circumstances, an application can be made for a period beyond one year e.g., where a pending a application has been closed for statistical purposes and fresh application is filed for the period covered by the earlier application and the period subsequent thereto. There is no right conferred to the Court to

1 2

Subbamma vs. B.T. Krishnappa, I (2001) DMC 41 Karnataka. Subbamma vs. B.T. Krishnappa, ibid.

Enforcement of order—Nature of right

441

enforce arrears of more than one years arrears. 1 On facts also it was observed as under: ‘In the instant case, Mst. Jakali had moved an application for grant of maintenance as early as on 1-6-81 which was decided only on 15-12-83. Merely filing an application by husband for setting aside that order could not prevent her from filing such application for enforcement of the order. There was nothing to prevent the wife from making an application for the enforcement of the order passed in her favour within one year of the decision. Therefore, awarding of arrears beyond the period of one year and without there being stay from 1-6-81 to 1-6-84 is abuse of the process of the Court and as such the order dated 21-3-87 is liable to be quashed. 2

Moral duty The Court has granted the amount of maintenance and it was the moral duty of the petitioner to make payment of the amount, as directed by the Court. For some reason, if the non-petitioner could not approach the Court within one year, it does not take away the moral duty of the petitioner to make the payment of the maintenance amount. The maintenance amount is always granted when the relations between wife and husband become strained and when they live separately, or when the divorce is effected. The lady who always remains at the mercy of the husband and who is turned out, has no source of income to maintain her, and even to approach the court regularly. The husband who is always at the better position and who can exert influence, wants to harass the lady. It does not matter whether the non-petitioner requests the Court in time after the period of limitation. A moral duty is enjoined on the husband, and without making shelter of technalities of the law and the provision of Section 125(3) Cr.P.C. he should have paid this amount. 3

Nature of right The right of a wife for maintenance is an incident of the status and a Hindu husband is under a legal obligation to maintain his wife. This obligation is personal in character and arises from the existence of relationship between the parties. Sub-s. (1) of Section 18 of the Act only reiterates the general rule a Hindu Law on the subject. This right of a Hindu wife exists independently of the question as to whether the husband is in possession of any property or not. The wife’s case cannot also come under Section 28 of the Act. As long as the husband is living, 1 2 3

Ganga Ram vs. Jakali, I (1992) DMC 202 Raj. Ganga Ram vs. Jakali, ibid. Purshotam Dass Vanjani vs. Asha Rani, I (1984) DMC 35 Raj.

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Law of Maintenance

the wife is not a dependant as defined in Section 21 of the Act. Section 28 of the Act provides that where a dependant has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee, if the transferee has notice of the right and the transfer is for consideration. 1

Notice before warrant In Sher Mohd. vs. Mst. Roshan, 2 it has been observed that a notice before the issuance of a warrant under Section 125(3) Criminal Procedure Code is essential. it does not make any difference whether the order under Section 125(1) Criminal Procedure Code had been passed after the hearing both the parties or was passed ex-parte. 3

Place of execution A number of enabling provisions were passed after the partition to meet certain special cases of this kind and of course, where there is specific legislation, effect must be given to it. But where, as here, there is nothing, then in the absence of a specific bar it was held that an order which was good and competent when it was made and which was passed by a tribunal which was domestic at the date of its making and which could, at that date, have been enforced in an Indian Court does not lose the efficacy by reason of the partition. There is no reason why an order which was competent and valid at the time it was made and which could have been enforced in Delhi should cease to be competent simply by reason of the partition. A foreign order could not be enforced in this way. But the order here was a competent order of a domestic tribunal when it was made and could then have been enforced in the Delhi Court. In the absence of any specific bar there is no reason why it should lose its Indian nationality simply because the place in which it was born was later made foreign territory. 4

Procedure for recovery Maintenance amount has to be recovered in the manner provided for recovery of the fine amount. That takes us to Section 421, Criminal Procedure Code. One of the methods thereunder is issue of a warrant for levying of the amount by attachment and sale of any movable property 1

2 3 4

Udayanath Samal vs. Siri Dei, AIR 1973 Orissa 196: (1973) 1 Cut WR 448. 1987 WLNOC 158. Bansidas vs. Naraini, I (1989) DMC 214 Raj. Kishori Lal vs. Sm. Shanti Devi, 1953 AIR SC 441: 1953 CrLJ 1923.

Enforcement of order—Procedure for recovery

443

belonging to the husband. It is only where the amount is not recovered in execution of the said warrant, or the whole of the amount is not recovered in execution of the said warrant, then, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, imprisonment shall have to be ordered which may extend to one month from each month’s allowance. 1 But in this case, what the learned Magistrate had done by the impugned order was to straight away issue arrest warrant, and, on finding by the petitioner husband in the Court, sending him to jail by way of imprisonment for a period of nine months, because the interim maintenance had not been paid for nine months. It was held to be clearly unsustainable in law, and, it needs to be set aside, and the matter remitted to the learned Magistrate to recover the amount of interim maintenance including the arrears by first issuing warrant for attachment and sale of movable property of the petitioner husband, and, if any balance is still due, then only to resort to sentencing the husband to imprisonment. 2 The learned Chief Judicial Magistrate in its order took the view on the authority of Division Bench decision of the High Court, 3 that the petitioner was liable to pay maintenance even after the Act had come into force because the order for payment of maintenance had been made earlier to the enforcement of the Act. Later on, the learned Chief Judicial Magistrate, further ordered issue of non-bailable warrant of arrest against the petitioner, for detention in civil prison until he paid of the maintenance. 4 Section 421 of the Code provides for recovery of fine and the procedure laid down for the purpose was by issue of warrant for attachment and sale of any movable property belonging to offender, in this case the present petitioner (opposite party in the maintenance proceeding) or issue of warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. The proviso to Section 421 clearly stipulates that ‘no such warrant shall be executed by the arrest or detention in prison of the offender. On consideration of the above provisions, there should be no doubt that for recovery of money as maintenance which has to be in accordance with the procedure for 1 2 3 4

Veerabhadrapa vs. Vedavathi, II (1999) DMC 389 Karnataka. Veerabhadrapa vs. Vedavathi, ibid. Idris Ali vs. Ramisha Khatun, AIR 1989 GAU 24. Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, I (1991) DMC 29 Gau.

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Law of Maintenance

recovery of fine no warrant of arrest or detention of the petitioner could have been ordered. 1

Recovery and modification The proceedings under Section 127 Criminal Procedure Code are independent proceedings vis-à-vis the recovery proceeding under Section 125(3) of Criminal Procedure Code. Even assuming that the two can be taken up together then if is for the trial Judge to decided the manner in which the recovery proceedings should be initiated. If the Magistrate decided to give priority to the recovery proceedings rather than the proceedings for modification then he must follow the tenet of Section 125(3) of Criminal Procedure Code which says that if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. The words “without sufficient cause” emphasise that even while proceeding to direct recovery by a coercive process or for sending a defaulter to prison the trial Judge must afford opportunity to the defaulter to show cause why the warrant for levying the amount or for sentencing him to imprisonment should not be issued. It is only if the defaulter fails to show sufficient cause that he may then take the steps for recovery by coercive process or by sentencing to imprisonment. 2

Remedies available It is incorrect proposition that the only remedy available to the party who has been granted interim maintenance is to seek execution or the order under Section 125 (3) of the Code. The Magistrate has all the powers to make his orders effective and this power includes the power to strike off the defence. If this power is not recognised, this will frustrate the very purpose of grant of interim maintenance. A husband/father can always delay the proceedings by playing delaying tactics and keep his wife and children on the road. Obviously the very purpose of introducing Section 125 was to save the wife and the children from vagrancy. The petitioner was thus held not entitled to any relief in these proceedings but as a matter of concession a direction is issued that if he pays the entire amount due under the order of interim maintenance within one 1

2

Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, I (1991) DMC 29 Gau. Ashok Yeshwant Samant vs. Suparna Ashok Samant, II (1991) DMC 132 Bombay.

Enforcement of order—Stay of order/proceedings

445

month from today the order of striking off the defence shall stand revoked and he will be allowed to contest the petition. 1

Stay of order/proceedings The petitioner-wife in course of a proceeding under the Hindu Marriage Act was awarded certain maintenance by way of interim alimony under Section 24 of the Hindu Marriage Act. Thereafter she resorted to an application under Section 125, Criminal Procedure Code for maintenance and that application was allowed on contest. Thereafter there was an application under Section 127, Criminal Procedure Code by the opposite party-husband which application was rejected by the learned Magistrate. The husband did not come up against either the order passed under Section 125, Criminal Procedure Code or the order passed under Section 127, Criminal Procedure Code. Since there was no payment in terms of the order under Section 125, Criminal Procedure Code, the wife resorted to an executing proceeding. It was observed as under: So long the original order under Section 125, Criminal Procedure Code remained intact and so long this order is not challenged in any higher Forum, the opposite party-husband is bound to make payment in accordance with the said order. The opposite partyhusband has not come against any order Section 125 Criminal Procedure Code or any other order and as such the learned Session Judge was not right in granting the blanket stay of the order dated 5.4.1997 when the original order under Section 125, Criminal Procedure Code remained intact. 2 When the Civil Judge made a direction that the husband shall pay the arrears of maintenance, it was his highest duty to insist upon obedience to that direction. If there was disobedience he had inherent power to stop further proceedings which were commenced by the husband. 3 Failure to pay maintenance is a non-compliance of statutory requirement under Section 24 of the Hindu Marriage Act, 1955. It is the right conferred on a spouse under the statute, provided valid circumstances are made out. Her right to get maintenance had been already recognised. This statutory right acquired by her cannot be taken away, because of non-compliance of any of the order obtained by the husband regarding other as aspects. It is for him to take suitable proceeding against her for non-compliance of order of court, if any. She 1 2 3

Ashrif Ali vs. Manjurain, I (1992) DMC 472 P&H. Kukum Das vs. Biswaranjan Das, 1999(1) HLR 186 Calcutta. M. Ramchandra Rao vs. M.S. Kowsalya, AIR 1969 Mysore 76: 1968 (2) Mys LJ 127.

446

Law of Maintenance

is already a mush harassed woman and compelled to maintain the children born to him. Husband had not evinced any interest for the welfare of the minor children. It was held that nothing prevented him from making prompt payment every month for their maintenance, till he get custody through Court. 1 Section 24 states that interim maintenance could be ordered during pendency of proceedings. Whenever a proceeding in a court gets restored, the intervening period is always considered as continuance of the proceedings. It is the original proceeding which gets restored, and not a new proceeding which comes into existence. Therefore, the order of the court below, that till the entire arrears of maintenance upto the date of payment is paid, there is not other alternative than to stay the main O.P is correct. 2 The remedy of execution is not an easy remedy. The execution does not at all provide short cuts to the destination. The difficulties of a successful litigant begin when he succeeds to obtain an order in his favour. Driving out a penniless wife to initiate a separate execution proceedings for the purpose of recovery of arrears of interim alimony and expenses of the proceedings frustrates the very purpose and spirit of Section 24 of the Hindu Marriage Act. 3 A Court can, in exercise of its powers under Section 151 of the Civil Procedure Code, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumeliously flouts the order of the Court. There is a power in the Court to make such orders as may be necessary for the ends of justice and to prevent any abuse of process of the Court. The Matrimonial Court, therefore, was under duty to invoke the inherent power under Section 151 of the Civil Procedure Code and should have compelled the erring husband to deposit whole of the arrears of interim alimony and the expenses of the proceedings in the Court within certain point of time. If inspite of passing of such orders, the party under liability flouts the order deliberately, the Court can stay the petition or the proceedings of divorce if the erring party is a petitioner. 4 There is nothing in the Hindu Marriage Act which can prevent the Courts to exercise the inherent jurisdiction to advance the cause of justice. The Code of Civil Procedure contains no provision under this 1 2 3 4

I. Raju vs. Devaki, I (1988) DMC 430 Madras. I. Raju vs. Devaki, ibid. Vanmala vs. Maroti Sambhaji Hatkar, II (1999) DMC 521 Bombay. Vanmala vs. Maroti Sambhaji Hatkar, ibid.

Enforcement of order—Stay of order/proceedings

447

pendente lite maintenance and litigation expenses can be recovered without delay. The observations made in some other cases, i.e., Sunder Mal v. Budh Ram, 1 were quoted wherein it was observed that Courts exist for administering justice. In India, every Court is a Court of equity as well as of law. For the administration of justice it is necessary that it should have powers to undo a wrong and do the right. Thus, while taking note of the provisions with regard to the execution of the orders passed in the proceedings under the Hindu Marriage Act, it was held that when the Court is exercising the inherent power, it has to take into consideration all the circumstances of the case and then come to the conclusion whether the justice requires the proceedings to be adjourned or to be stayed till the payment is made. In Anita Karmakar 2, the Calcutta High Court considered the failure of husband to pay maintenance amount pendente lite and expenses of the proceedings of wife. The wife moved the Court for the stay of the proceedings and the Court held that, the husband against whom an order under Section 24 has been made, but who refuses to pay under the order and aspires yet to go on with his suit must not be encouraged. It was held that the English principles, followed in matrimonial causes, of staying the suit in such circumstances is the best way of dealing with such a situation and the said principles should be applied in proceedings under the Hindu Marriage Act, 1955 as a rule of justice, equity and good conscience. It was contended before the Calcutta High Court on behalf of the husband that the wife could enforce the order made under Section 24 of the Act only by way of execution of the order and that the husband opposite party could not be compelled to pay by ordering stay of the proceedings for restitution of his conjugal rights with the petitioner. The Calcutta High Court observed that the path of execution is not an easy going high way and provides no short-cuts to the destination. While referring to the case of General Manager of Raj Durbhanga, 3 the observations made by the Privy Council were quoted to the effect that, “Difficulties of a litigant in India begin when he has obtained a decree”. The Calcutta High Court, therefore, took the view that to hold that the levying of execution is the only remedy for enforcement of an order made under Section 24 may result in making such order wholly nugatory and ineffective. The Calcutta High Court has also agreed with the view taken by the Punjab High Court in the case of Malkan Rani (supra) and while agreeing with view taken by the Punjab High Court, it has been 1 2 3

ILR 1955 (4) Patiala 481. AIR 1962 Cal 88 General Manager of Raj Durbhanga vs. Ramput Singh, 14 Moo Ind App 605 (612).

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Law of Maintenance

observed that inconvenience may ensure if execution be held to be the only method of enforcement of an order made under Section 24 of the Act and that there was nothing in the scheme of Hindu Marriage Act which is opposed to the staying of a matrimonial action, for noncompliance with an order man under Section 24 of the Act, in exercise of the inherent powers of the Court. In Bhuneshwar Prasad 1, the Madhya Pradesh High Court was also concerned with the question of stay of the proceedings in a matrimonial case for on-compliance with the order passed under Section 24 of the Hindu Marriage Act. The Madhya Pradesh High Court considered that if payment of maintenance pendente lite and expenses of the proceedings is to be deferred until after the termination of the proceedings, the very basis of an order under Section 24 directing the payment would disappear. Maintenance pendente lite and expenses of the proceeding are ordered to be paid under Section 24 on the ground that the spouse in whose favour the order has been made is without the necessary means to maintain herself or himself during the proceedings and bear the expenses of defending them. If the payment of this amount is not made before the termination of the proceedings and if they party in whose favour the order has been made can afford to wait until after the proceedings are terminated, then it may well be said that the order under Section 24 was not necessary for the protection, during the proceedings of the party concerned. It is true Section 24 does not expressly provide for the situation arising because of non-compliance with an order made under it. For the reasons as aforesaid, the Madhya Pradesh High Court has concluded that there is nothing to prevent a Court from exercising its inherent power and staying the proceedings for the purpose of carrying out the object of the order made under Section 24. It was also held that Section 28 on which reliance was placed by the petitioner does not stand in the way of enforcement of an order under Section 24 by staying the proceedings until the order is carried out. The provision only says that all decrees and orders made by the Court in any proceedings under the Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under any law for the time being in force. The proceedings are stayed by the Court in the exercise of its inherent powers for non-compliance with an order under Section 24. The stay itself is clearly not the execution of the order. The proceedings are stayed for the purpose of enabling the party in whose favour the order has been made to 1

Bhuneshwar Prasad vs. Dropta Bai, AIR 1963 MP 259

Enforcement of order—Stay of order/proceedings

449

execute it in the manner provided in Section 28 and recover the amount of maintenance pendente lite and expenses of the proceedings so that he or she may be in a position to defend the proceedings. 1 In Anita Karmokar vs. Birendra Chandra Karmokar, 2 the wife had made an application under Section 24, which corresponds to Section 30 of the Act, claiming maintenance pendente lite and litigation expenses from her husband in a suit for restitution of conjugal right brought by him. The trial court allowed the application, but the husband did not comply with the order. The wife then moved another application that further proceedings in the suit may be stayed, till the order passed under Section 24 was complied with. The trial Court rejected this prayer on two grounds. One that an order passed under Section 24 was executable; and two, that there was no provision in the Act authorizing the Court to stay further proceedings in the main case, till the order passed under Section 24 was complied with, a revision was taken by the unsuccessful wife to the Hindu Court. Relying upon the observations of Mahmod, J. in Narsingh Das v. Mangal Dubey: 3 “Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the court, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed”; Banerjee, J., held that there being no prohibition in the scheme of the Act for staying of proceedings, the trial Court could have stayed them in exercise of its inherent powers. This was a fortiori necessary for advancing the object of Section 24, that an indigent spouse is not hampered in his or her defence due to paucity of funds. 4 When the Judge made the order under Section 24, the husband was bound to obey it. But if he does not obey in terms of the order passed by the Judge, the court can enforce obedience to its order by staying the proceedings if the party in default is the petitioner. If the order is in favour of the petitioner, and the respondent is an default the court will strike off the defence. This is how courts enforce their orders. The power of the court to stay the proceedings or to strike off the

1

2 3 4

Neeta Shreyas Joshi vs. Shreyas Siddharath Joshi, I (2000) DMC 323 Gujarat. AIR 1962 Cal.88. (1882) ILR 5 All 163 (FB). Amrit Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.

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Law of Maintenance

defence of a defendant in order to compel obedience to its order or to prevent the abuse of the process of the court has long been recognized. 1 With the stay of the proceedings, the operation of the order under Section 24 is suspended. This means that the husband will be liable to pay maintenance allowance for the period up to stay of proceedings but not beyond that. In case he revives the proceedings he will of course be liable to pay all arrears of maintenance which fall due during this period of stay and revival. The proceedings remain in a state of animated suspension. Maintenance pendente lite is pending adjudication, it is true. But if the spouse ordered to pay maintenance is in default the court stays the proceedings. The defaulting spouse is not allowed to use the judicial process because of non-compliance. The proceedings by staying them are brought to an end capable of being revived only on condition that the defaulting spouse submits to the unquestioned authority of the court which he once refused to recognize. This is the sanction judges have in their hands to see that no one flouts their orders with impunity. 2 Where the husband by his own act had made it clear to the court that he was not going to comply with the order awarding maintenance pendente lite against him; it will be incongruous to hold that the husband will be liable to pay maintenance allowance for the period subsequent to the stay even though he is not allowed to go on with the proceedings. 3

Striking off defence During the pendency of the case in the Trial Court the husband did not honour the order of Court to pay maintenance and litigation expenses to the wife and in High Court also he did not appear in spite of service. Under the situation, It was held that the Trial Court was right in striking off the defence and that order of the Trial Court was maintained. 4

1

2

3 4

Codd vs. Codd, AIR 1924 Bombay 132; Maish vs. Masih, AIR 1941 All 93; Krishan Kumar, 1961 Punjab 42; Anita vs. Birendra Chandra AIR 1969 Calcutta 88; Bhuneshwar Prasad vs. Dropta Bai AIR 1963 MP 259; B.M.M. Naidu vs. Shantamma AIR 1971 Mysore 25; Anuradha vs. Santosh Nath AIR 1976 Delhi 246; A. Susselamma vs. A. Raghunadha, 1977 MLR 196 (DB) and Prithpal Singh vs. Anup Kaur,1978 HLR 59 Jai Rani vs. Om Prakash Saini, I (1984) DMC 154 Delhi: Bishoke Kumar Dutta Choudhury vs. Amita Durra Choudhury, I (1983) DMC 202 Calcutta. Jai Rani vs. Om Prakash Saini, ibid. Amar Jit vs. Sunder Lal, I (1990) DMC 68 P&H.

Enforcement of order—Waiver

451

The Court can strike out the pleadings of defaulting party to ensure enforcement of order granting maintenance. 1 Defence can also be struck off, if there is failure to pay maintenance. 2 In case of non payment of maintenance during the pendency of divorce proceedings, defence of spouse struck off due to non compliance and it was held that the petitioning spouse is entitled to decree of divorce in terms of petition. 3

Subsequent events In Bhupinder Singh v. Daljit Kaur, 4 it has been observed as follows: “If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code, it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in term of Section 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that or that there has been a compromise between the parties can hold good as a valid defence.” This view has been referred with approval by Rajasthan High Court. 5

Waiver Under a Clause of the compromise decree, wife had specifically reserved her right to execute the decree notwithstanding the fact that she decided to live with her husband. When she had specifically reserved a right in her favour, there is no waiver on the part of the wife nor there is any abandonment of the decree on her side. 6

1

2 3 4 5 6

Ghasiram Das vs. Arundhati Das, AIR 1994 Ori 15: (1994) 1 DMC 578: 1994 (1) Hindu LR 545: 1994 Marri LJ 203: 1993 (2) Ori LR 508. Kanti Devi vs. Balbir Singh, I (1990) DMC 35 P&H. Paramjit Kaur vs. Kashmir Singh, 1994 (1) DMC 504 P&H. (1979) Cr.LJ. 198. Kaur Singh vs. State of Rajesthan, II (1989) DMC 68 Raj. Lakshmi Veera Venkatarantnam vs. Kudupudi Sri Krishna Vara Prasad, II (1999) DMC 268 AP.

452

Law of Maintenance

Chapter 11

Muslim law SYNOPSIS Application of Act of 1986 .............452 Application of Act of 1986 on pending application .....................................454 Application of Criminal Procedure Code, 1973 .....................................455 Deduction from maintenance .........456 Divorce...........................................456 Effect of Act of 1986 on existing order .......................................................457 Effect of Act of 1986.......................460 Effect of delay ................................460 Effect of dissolution of marriage....462 Effect of divorce .............................463 Effective date of Talaq ...................463 Ex parte order ................................463 Exercise of option ..........................465 Family Court ..................................465 Invalid divorce ...............................466 Liability of husband .......................467 Liability of State Wakf Board .........468 Mahr or dower ...............................469 Major children ...............................469 Meaning of Iddat period ................469 Natural Justice ...............................470 Object and scope of Act of 1986 ....471

Object behind four marriages ....... 472 Right to property ........................... 473 Object of granting maintenance .... 474 Obligation of Muslim father .......... 475 Payment of mehr ............................ 476 Period of maintenance................... 477 Principles of law............................ 478 Procedure for application of Act of 1986 ............................................... 479 Procedure of talaq ......................... 479 Proof of divorce ............................. 482 Reconsideration of order ............... 485 Refusal co-habit ............................. 486 Retrospective application of Act of 1986 ............................................... 487 Return of gifts ................................ 488 Right of child ................................. 489 Right of divorced wife.................... 495 Scheme of Act of 1986 ................... 495 Second marriage by husband ........ 497 Talaq without any cause ................ 500 Territorial jurisdiction .................. 500 Triple pronouncement of talaq ...... 501 Validity of Act of 1986 ................... 507

Application of Act of 1986 The provision of Section 3 of the Act is quite clear as it is restricted therein that a divorced wife is entitled to maintenance only for a period of Iddat besides other amount. Similarly Section 5 of the Act further clarifies whether divorced woman is unable to maintain herself or she has no source to maintain her, she can be directed to be paid maintenance by the State Wakf Board. Thus, it is abundantly clear that

Muslim law—Application of Act of 1986

453

Act would come into play if there is divorce an das already indicted above, the parties are yet to lead evidence to prove the fact whether the divorce had taken place or not. In a Full Bench authority 1, it has been held that claim of maintenance by a divorced Muslim wife under the provision of Section 3 of the Act cannot be restricted to the period of ‘Iddat’. If it is to be restricted to the period of Iddat, husband has to show that he has made and paid a reasonable and fair provision and maintenance to the wife which is an adequate provision for her life or till she re-marries. 2 In one case it appeared that in the show cause filed by the opposite party it was stated that when the petitioner did not like to live with him, he divorced and has returned all the articles, utensils and expenses of iddat period. Whatever may be the factual position, such direction cannot be issued in the instant proceeding under Section 125 of the Code of Criminal Procedure. If, in fact, the petitioner had not been paid her agreed amount of dower (Mehr) and other articles which were given to her at the time of marriage and thereafter then she will be at liberty to initiate action against the opposite party for the recovery of dower amount and other properties under the provisions Muslim Women (Protection of Rights on Divorce) Act, 1986. 3 In a division bench judgment 4 it was held that the provisions of the Act, 1986 have no retrospective force and it covered the cases filed after the Act, 1986 comes into force and to those cases pending under Section 125 or 127 Criminal Procedure Code when the Act was brought into force. 5 In essence the 1986 Act is meant to protect the rights of Muslim women who have been divorced. This special enactment has embodied in its provisions the principles of Mohammedan Law. Section 5 of the 1986 Act provides for an option to be exercised by the husband and the wife jointly to opt for the provisions of Section 125 to 128 of the Criminal Procedure Code in a proceeding in an application under Sub-section (2) 1 2

3

4 5

Kaka vs. Hassan Bano, 1998(1) RCR 484 Sarbari vs. Suleman, II (2000) DMC 216 P&H: See also Abdul Rauf Khan vs. Haleman Bibi, 67 (1989) CLT 285: 1 (1990) DMC 315: Abdul Raheman vs. Nurjahan @ Nuri Bibi, I (2000) DMC 720 Orissa; See also Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Bibi Shahnaz @ Munni vs. State of Bihar, II (1999) DMC 589 Patna. Idirs Ali v. Ramesha Khatun, 1988 GLR (II) Page 1 MD. Afsar Ali Khan vs. Mustt. Subia @ Sahida Khatun, II (1991) DMC 559 Gau.

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Law of Maintenance

of Section 3 of the 1986 Act. In other words, it the application is made by a divorced woman to claim the benefits of Section 3 of the 1986 Act, then only under Sub-section (2) of Section 3 of that Act, the option has to be exercised. The provisions of Section 5 of the 1986 Act therefore, do not apply in a proceeding initiated by a Muslim wife claiming maintenance since she does not claim maintenance as a divorced wife. It is for the reasons mentioned in Section 3 that a reasonable and fair provision for maintenance has to be worked out within be sub-clauses of Sub-section (1) of Section 3. 1 In a recent decision it has been held that a Muslim husband is liable to make reasonably and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2

Application of Act of 1986 on pending application In respect of a divorced woman if any application under Section 125 or under Section 127, Criminal Procedure Code is pending on the date when the Act of 1986 came into force, the application has to be disposed of by the Magistrate in accordance with the provisions of Act. It is not that such an application should be dismissed straightway but has to be considered and disposed of in conformity with the provision on the Act not under Section 125 or 127, Criminal Procedure Code. 3 Under Section 7 of the Act, the pending proceeding shall be subject to the provisions of Section 5 of the Act. Therefore the petition filed under Section 125 of the Code has to be treated as a petition filed under Section 3 of the Act. Under Section 5 of the Act, when a petition has been filed by the divorced woman for maintenance, the former husband shall declare his preference in writing either to be governed by the provisions of Section 125 of the Code and only on filing of such a declaration, the Magistrate shall dispose of the application accordingly. The Section is very clear that only if the former husband agrees in writing for proceeding with the enquiry under Section 125 of the Code, the petition shall be disposed of accordingly. Otherwise, the enquiry cannot be under Section 125 of the Code. 4

1 2

3 4

Zahid Ali vs. Fahmida, II (1988) DMC 387 Bombay. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Shainbhai vs. Fakruddin, II (1999) DMC 576 MP. Nazimunissa Begum vs. Abdul Majeeth, I (1996) DMC 274 Madras.

Muslim law—Application of Criminal Procedure Code, 1973

455

It was not the case of the petitioner that the respondent had given his consent in writing or participated in the enquiry. It appeared that when the petition was reserved for orders, the Act came into force and the learned Magistrate, without resorting to Section 5 of the Act to ascertain the willingness of the parties, had pronounced the orders. As the order was passed under Section 125 of the Code without obtaining the necessary consent of the husband in writing with regard to his preference to be governed by the provisions of Section 125 of the Code, the order of the Magistrate was held to be not binding. 1

Application of Criminal Procedure Code, 1973 Usually, a Muslim woman who comes to the Court to claim maintenance will be having no means of livelihood and an unscrupulous husband taking advantage of the helplessness of the wife may take a contention that he has divorced his wife and, therefore, the case is to be governed by the provisions of the Act. But, that will not be an end of the matter, because Section 5 of the Act gives option to the divorced wife to give a declaration that she would prefer to be governed by the provisions of Section 125 to 128 Cr.P.C. and if she gives such a declaration under Section 5 of the Act, the provisions of the Act will not be applicable to the case and the case of such a divorced wife will have to be disposed of by the Court in accordance with the provisions of Section 125 to 128 Criminal Procedure Code, 1973. 2 Since the woman who approached the Court under Section 125 Criminal Procedure Code, 1973 may not be aware of Section 5 of the Act which gives them an option to be governed by the provisions of Section 125 to 128 Cr.P.C., it is the duty of the Magistrate before whom such case has come to make the parties aware that they have got an option to be governed by the provisions of Section 125 to 128 Cr.P.C. If the Magistrate without making the parties aware more so the Muslim divorced woman that she has got the option to be governed by the provisions of Section 125 to 128 Cr.P.C. and disposes of the case holding that only the provisions of the Act will apply and not the provisions of Section 125 to 128 Cr.P.C. it will be a serious infirmity which will vitiate his order. 3 Section 5 of the Act lays down that either the divorced wife or her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, 1 2 3

Nazimunissa Begum vs. Abdul Majeeth, ibid. Sayed Karim vs. Zarina Bi, I (1992) DMC 536 Kar. Sayed Karim vs. Zarina Bi, ibid.

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Law of Maintenance

that they would prefer to be governed by the provisions of Section 125 to 128 of the Court of Criminal Procedure, 1973. The words jointly or separately go with the word filing i.e., the declaration can be filed either jointly or separately by the divorced wife or her former husband. From Section 5 of the Act, it is clear that the declaration can be filed either separately or jointly. It leads to an inference that either both the divorced wife and her former husband or either of them can give the declaration in writing that they would prefer to be governed by the provision of Section 125 to 128 Cr.P.C.

Deduction from maintenance Even though the calculation made as to maintenance having regard to period of ‘Iddat’ from the date of divorce made by the first appellate Court be correct, that would not justify the deduction in a suit for recovery of Mahr (Dower) the excess differences in maintenance ordered by the Criminal Procedure Code in exercise of powers under Section 125 Criminal Procedure Code the proper remedy would be not adjustment in the present suit under Section 125 Criminal Procedure Code but taking up the matter in revision proceedings before the Superior Court or by filing of a suit, if permissible under the law. 1

Divorce Under the Quran the marriage status is to be maintained as far as possible, and there should be conciliation before divorce, and, therefore, the Quran discourages divorce, and it permits only after pre-divorce conference. The divorce must be preceded among Muslims by an attempt of reconciliation between the husband and wife by two mediators— one chosen by the wife from her family and the other by the husband from his side. A Mohammedan husband cannot divorce his wife at his whim or caprice i.e., divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference to arrive at a settlement. Even if there is any reasonable cause for the divorce, yet there must be evidence to show that there was an attempt for a settlement prior to the divorce and when there was no such attempt prior to divorce to arrive at a settlement by mediators, then there cannot be a valid divorce under Mohammedan Law. 2 In this case the reasons given by the husband in his “Talaqnama” were not found to be justifiable reasons for divorce. Even assuming that the husband in his “Talaqnama” dated has given justifiable reasons, there is no whisper in his “Talaqnama” that the alleged divorce had been 1 2

Shakila Bano vs. Sheikh Naseem, II (1991) DMC 529 MP. Saleem Basha vs. Mumtaz Begum, II (1999) DMC 206 Madras.

Muslim law—Effect of Act of 1986 on existing order

457

preceded by a pre-divorce conference to arrive at a settlement by two mediators one chosen by the wife from her family and the other by the husband from his side. There was no evidence worth its name in this case to show that such an attempt for reconciliation and settlement was made by the husband, and there was a pre-divorce conference to arrive at a settlement. That being so even taking for granted that the revision petitioner divorced his wife for reasonable cause, yet the divorce given by the revision petitioner would not be held to be valid according to Muslim Law. Taking into consideration of the above facts and circumstances of the case it was held that the “Talaq” pronounced by the husband divorcing his wife viz., the respondent herein is not valid under Mohammedan Law. 1 Talak amongst Mohammedans may be oral or in writing. This provision of the Mohammedan Law read as under: “Sec.310: Talak may be oral or in writing: A Talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama. In view of this provision, no evidence is required to prove Talak as the divorce by husband is complete just by utterance of words ‘TALAK, TALAK, TALAK’ thrice and the presence of third person is not necessary. In this view of the matter, there is no option to the wife to challenge Talak. This being so, the application made and filed is not maintainable. 2 When the issue regarding divorce had not been raised by the petitioner and in rejoinder only belatedly some attempt were made by the opposite party to show that the applicant had been divorced long back (13 or 14 year back) it was held that this fact cannot be considered to be true and acceptable in the context of the pleading of the parties. 3

Effect of Act of 1986 on existing order The question would be whether a divorced Muslim lady can rest on an order passed under the provisions of Section 125 Criminal Procedure Code even after the Act is enacted. The answer would be that after said enactment all the orders passed prior to enforcement of the said Act becomes inoperative. Accordingly section 128 Criminal Procedure Code has lost its force on the day divorce was affected.

1 2 3

Saleem Basha vs. Mumtaz Begum, II (1999) DMC 206 Madras. Mohd. Umar Khan vs. Gulshan Begum, II (1991) DMC 15 MP. Bibi vs. Mobarak Ansari, II (1994) DMC 53 Patna.

458

Law of Maintenance

Therefore the wife is entitled to get maintenance for the Iddat period along with other dues such as Mahr and dehej etc. 1 The Act of 1986 has completely obliterated the right of maintenance to divorced Muslim woman. The repeal without saving such right means that such woman had never acquired such right and in the view of the matter, the said right now cannot be enforced under Section 125 Cr.P.C. Even if an order granting maintenance had been passed in favour of a Muslim divorced woman prior to the coming into force of the Act of 1986 and has become final or is pending in the revision before any Court or is being challenged by the husband, even in those cases, the Muslim divorced woman is not entitled to get the Maintenance as allowing the maintenance in those cases will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of Act for which it has been enacted. No exception has been made in Section 7 of the Act of 1986, which means that neither the order passed under Section 125 Cr.P.C. nor the liability already incurred earlier to the coming into force of the Act, 1986 has been saved. The inevitable conclusion of passing of the Act of 1986 is that not only right under Section 125(1) but also the remedy under Section 125(3) Cr.P.C. are lost. Section 7 of the Act of 1986 envisaged a complete replacement of right and remedy under Section 125 Cr.P.C. 2 Another view is that the 1986 Act does not contain a provision enabling reopening of order passed under the provisions of the Code which have become final. This is one more indication to show that mere change of law cannot lead to alteration or cancellation of orders passed under the Code which have become final. 3 The non obstante clauses is in general terms. Section 125 and 128 of the Code as such do not stand superseded. There is no provision in the Muslim Women Act to the effect, “notwithstanding anything contained in Section 125 to 128 of the Code maintenance of Muslim Women shall be governed by the provisions of the Muslim Women Act or to the effect that Section 125 to 128 of the Code shall stand repealed in so far as maintenance of Muslim Women is concerned. It follows that the provisions of Section 125 to 128 have been superseded only to the extent that there is a provision in the Muslim Women Act on matters covered under Chapter IX of the Code. It further follows that if no contrary provision has been made either expressly or by necessary implication in 1

2 3

Sadique Ali vs. Apar Sessions Naiyai Dheesh, Basti, II (1995) DMC 222 All. Abdul Hamid. vs. Mst. Asia, I (1992) DMC 522 Raj. P.A. Shamsudeen vs. Sabhiya, I (1989) DMC 97 Kerala.

Muslim law—Effect of Act of 1986 on existing order

459

the Women Muslim Act, the provisions of the Code in Chapter IX shall hold the field. Sub-section (2) of Section 3 as well as Section 4 of the Muslim Women Act contain provisions regarding enforcement of order of maintenance granted under the said Act as distinguished from enforcement of an order passed under the Code where order had acquired finality before the commencing into force of the said Act. 1 A careful consideration of the Muslim Women Act shows that there is no provision whatsoever with regard to enforcement of an order of maintenance which has already become final under the Code before coming into force of the Muslim Women Act. This only implies that the provisions with regard to enforcement of such orders contained in the Code hold good even after coming into force of the Muslim Women Act. 2 In one case when the wife and the daughter applied for maintenance, the 1986 Act was not in force. Similarly, the wife was not a divorced woman. The application filed by the wife under Sub-section (3) of Section 125 Criminal Procedure Code was for execution of the order of maintenance. The order of granting maintenance to wife the Magistrate was upheld by the Session Court, High Court and the Supreme Court. Thus, the claim of wife stood finally decided and as such she accrued a substantial right. In has become a vested right in the wife. The amount claimed in the execution application in question was for the period prior to the date of divorce. When such a valuable vested right to claim certain amount was accrued to the non-applicant in her capacity as a wife, the same cannot be taken away by the provisions of 1986 Act. The nature of the vested right accrued to the non-applicant is as regards a money claim. The right of a destitute wife or a minor claiming maintenance in Chapter IX of the Criminal Procedure Code is essentially a civil right. The remedies provides in the said chapter are in the nature of civil rights. The proceedings under Section 125 are essentially civil in nature. Thus when a vested right is accrued to a wife to claim her past maintenance, the provisions of the 1986 Act therefore cannot affect her right to institute the recovery proceedings. Even if a Muslim wife is divorced during the pendency of her application for execution within the meaning of Sub-section (3) of Section 125 Criminal Procedure Code her previous claim of maintenance as a vested right will not be taken away by the 1986 Act. The right which accrued to her as a vested right cannot be altered or abrogated by the 1986 Act. 3

1 2 3

Hazran vs. Abdul Rehman, I (1989) DMC 509 P&H. Hazran vs. Abdul Rehman, ibid. Zahid Ali vs. Fahmida, II (1988) DMC 387 Bombay.

460

Law of Maintenance

Effect of Act of 1986 Provision of Section 125 of the Code would be applicable to the case of a divorced Muslim woman only if both parties exercise their options at the first hearing the application under Section 3(2) of the Act, and not in any other case. 1 Section 125 to 128 of the Code are not applicable after coming into force of the Act of 1986, save in so far as the parties exercise their option under Section 5 of the Act, to be governed by the provisions of Section 125 to 128 of the Code. 2 The divorced Muslim woman is not entitled for any maintenance beyond Iddat period. She has to claim maintenance from her close relatives, who are likely to succeed to her property, if not from the Wakf Board. 3 But in a recent decision it has been held by a Constitution Bench of Supreme Court that a Muslim husband is liable to make reasonably and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 4 A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 5

Effect of delay Sub-section (3) of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 provides that where an application has been made under Sub-section (2) by the divorced woman, the Magistrate may make an order within one month of the date of filing of the application, directing her former husband to pay such reasonable and fair provision for maintenance to the divorced woman as he may determine as 1 2

3 4

5

Rashida Khanum vs. S.K. Salim, I (1996) DMC 328 Orissa. Usman Khan Bahamani vs. Fathimunnisa Begum, AIR 1990 Andhra Pradesh 225 (FB): 1990 Cri LJ 1364. Shaik Dada Sahed vs. Shaik Mastan Bee, II (1995) DMC 473 AP. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Danial Latifi vs. Union of India ibid.

Muslim law—Effect of delay

461

fit and proper having regard to the circumstances, he may also pass an order for the payment of such Mehr or dower or the delivery of such properties referred to Clauses (d) of Sub-section (1) to the divorced woman. There is one provision to the section which prescribes that if the Magistrate finds it impracticable to dispose of the said application within the said period, he may, for the reasons to be recorded by him, dispose the application after the said period. This section provides for speedy remedy when any prayer under Section 3 of the Act is filed by a divorced woman before a competent Court. 1 A contention was raised that such a speedy remedy could not be made available to the divorced lady and the petition should be dismissed as Magistrate did not record reasons for such delay in disposing of the said application. It makes out a proposition that the legislature intended that if no speedy remedy is made available to the destitute lady, her application should not be considered. That can never be proposition of enacting the special Act for the purpose of giving relief to a Muslim Divorced lady. If the Magistrate is unable to dispose of the application within one month as provided in Sub-section (3) of Section 3 of the Act for the matter if he does not record the reason, a divorced lady is out of ground for no fault of her own. For granting relief to a lady she is to file an application with necessary details and allegations if any, and it is the duty of Court to take speedy recourse to make available to the petitioner the relief granted by the Legislature under the special legislation and if he cannot do it within the period which was provided in the Act the lady should not suffer. 2 The provision referring that the said section is directory and not mandatory. The word “may” has been used in all the places even when in the proviso where it has been stated that the Magistrate may record the reason if it is not practicable from his to dispose the application within one moth. By not following the direction, as mentioned in Sub-section (2) of Section 3 of the Act the Magistrate has committed an illegality for which the proceeding would be not be vitiated. 3 Section 3(3) of the Act mandates that when an application is made under Sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that the divorced woman is entitled to the claim made by her, make an order within one month of the date of filing of the application, directing her former husband to pay the amounts found by

1 2 3

Muslim @ Bhoora vs. State of U.P., I (1996) DMC 298 All. Muslim @ Bhoora vs. State of U.P., ibid. Muslim @ Bhoora vs. State of U.P., ibid.

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Law of Maintenance

him. The proviso to Section 3(3) stipulates that if the Magistrate finds it impracticable to dispose of the application, he may, for reasons to be recorded by him, dispose of the application after the said period. No reason for the delay in disposing of the petition filed by the respondent is stated in the order passed by the learned Magistrate. 1 From the context the phrase ‘Magistrate may make an order within one month of the date of filling of an application’ used in Section 3(3), it is clear that the word ‘may’ is used to mean ‘shall’ especially considering the fact that the proceedings under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act is a summary proceeding intended to achieve the object of the enactment of the Act to give immediate relief to divorce Muslim Women to whom the reliefs are not provided by her former husband within the period of Iddat. But merely because of the failure of the Magistrate to record the reasons for the delay in disposal of the application, the order passed by the Magistrate will not be rendered in valid or unsustainable. The failure, if any, on the part of the Magistrate to give reasons for the delay in disposal of the application within the time of one month as stipulated in Section 3(3) of the Act should not cause any harm or prejudice to the beneficiary of the Act in whose favour the order is passed by the Magistrate, though belatedly. 2

Effect of dissolution of marriage Under Muslim Marriages Act, 1939 Muslim wife is also entitled to maintenance. A Muslim wife whose marriage was dissolved by a decree of dissolution passed at her instance was entitled to maintenance under section 125 of the Code of Criminal Procedure. 3 Now she is entitled to maintenance under Act of 1986 and it has been held that liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 4

1 2 3

4

Nizar vs. Hyrynneessa, I (2000) DMC 29 Kerala. Nizar vs. Hyrynneessa, ibid. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945: 1985 CrLJ 875: 1985 CrLR (SC) 327: 1985 SCC (Cr) 245: 1985 CAR 161: 1985 Jab LJ 489; Mst. Zohara Khatoon v. Mohd. Ibrahim, 1986 CrLJ 556: AIR 1986 SC 587: 1986 CrLR (SC) 317: 1986 CAR 35: 1986 SCC (Cr) 72: 1986(2) Rec Cr R 40: 1986(2) Crimes 143. However the position of law is not the same after enactment of Muslim Woman (Protection of Rights on Divorce) Act, 1986. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India.

Muslim law—Ex parte order

463

Effect of divorce There is some amount of dispute whether there was divorce. Mulla in Principles of Mohammedan Law 1, has stated as follows:— “If a man says to his wife that she had been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier”. While considering an aspect of the Mohammedan Law, one should not be influenced by one’s sense of rigid approach as regards marriage and divorce applicable to Hindus. The quoted portion from Mulla clearly shows that under the Mohammedan Law, husband is in an advantageous position and has been conferred a special right not only to divorce the wife orally in the manner provided under the Mohammedan Law but also by issuing a notice or filing a written statement in defence to maintenance claim. A similar view expressed by the Andhra Pradesh High in Mohammed Ali vs. Faredunnisa Begum 2 was held to be laying down the correct position in law in Sk. Mohiuddin vs. Hasina 3 and in Sayed Nawai @ Alias Nati vs. Rasida Begum. 4

Effective date of Talaq The respondent-husband has filed a counter in the month of May, 1994 starting that he has given Talaq to the petitioner and, therefore, he is not liable to pay maintenance beyond Iddat period. It was held that even assuming that the Talaq pleaded earlier was not established, the Talaq comes into effect at least from the date of filling of the counter. That being so, the petitioner was held to be entitled for maintenance of the rate of Rs. 500/- per month under Section 125, Criminal Procedure Code from June, 1993 to May, 1994 plus Iddat period. 5

Ex parte order It will be wrong to say that since there is no express provision in the Code, the Magistrate does not have power to dismiss the proceeding for default of the petitioner. Supposing that the petitioner being no more interested does not appear in the case, then should the Magistrate helplessly adjourn the case or should he issue any process for compelling the petitioner’s appearance or should be proceed with hearing and record the evidence of the opposite party and finally dismiss the case on the basis of the evidence so collected ? If these questions are answered in 1 2 3 4 5

8th Edition, page 327 AIR 1970 AP 298. (1988) (II) OLR 163. Vol. 33 (1991) OJD 212 (Criminal). Yousuf Jani vs. MD. Yousufuddin, II (2000) DMC 115 AP.

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Law of Maintenance

affirmative, it will be an absurd proposition of law. When the petitioner having lost interest in the case if does not turn up on the date of hearing, it will be futile exercise to proceed with the hearing by asking the opposite party to lead evidence in support of his defence and then pass the order dismissing the case. 1 The matter may be judged from another angle. Assuming that the Trial Court has no power to dismiss the case on petitioner’s default, as observed by the Hon’ble Judge because of absence of an express provision in the Code then in that case the order of dismissal being without jurisdiction is non-est in the eye of law and, therefore, the Magistrate would be competent to recall the said order and to restore the case to its original position. 2 Rule 4 under the Act provides that all evidence shall be recorded in the presence of the husband. Then there is a proviso which says that if the Magistrate is satisfied that the husband is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the matter ex parte. Here the use of word ‘wilfully’ is important. The magistrate gets jurisdiction to proceed ex parte only when the husband avoids service wilfully or neglects to come to Court wilfully. When the husband was not doing it wilfully as he was unable to come because the defence authorities were not relieving him; it is doubtful that Magistrate had any jurisdiction to proceed ex parte. Therefore, the action of the Magistrate in proceeding ex parte was held to be basically wrong. 3 It was observed as under: ‘There is not the slightest indication as to what were the exigencies of the service. The man was not participating in a war. No specific assignment of the urgent nature has been mentioned. During all this period he was not on sea. For some time he has only sent on duty to staff college. But there was insistence that he would attend the Court during annual leave. He was even at Headquarters. Again on the next occasion we find that Commanding Officer writes that husband could not be spared and he could be available at the time of annual leave in July, 89. This gives an impression as if the Commander was merely insisting that husband should go during annual leave and mechanically leave was refused for attending the case without realising as to what will be the fate of the woman whose case the Parliament expects to be decided within a month under Sub-section (3). Probably such insistence was unjustified, but I would not comment on it further and in a decisive manner, because I have 1 2 3

Shabihul Hassan jafari vs. Zarin Fatma, I (2001) DMC 1 All. Shabihul Hassan jafari vs. Zarin Fatma, ibid. Shafaat Ahmad vs. Fashmida Sardar, I (1991) DMC 102 All.

Muslim law—Family Court

465

not heard the view point of the Commander. All the same this Court does expect that such letters should come from defence authorities after they have applied their mind to the entire circumstances and facts of the case and it is better if they give slight indication showing as to why it is not possible to spare an officer when a destitute woman, whose case the Parliament wants to be decided in a month, is suffering.’ 1

Exercise of option The application had been filed by the opposite parties under subsection 2 of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986. Proceeding continued before the Magistrate and on the first hearing the parties did not exercise their option to continue the proceeding under Section 125 of the Code Criminal Procedure. As provided in Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, the option not having been exercised on the first hearing to continue the proceeding under Section 125 to 128 of the Code Criminal Procedure, the question of application of Section 125 of the Code does not arise. 2 Section 3(2) of the Act enables a divorced Muslim woman where a reasonable and fair provision and maintenance or the account of mahr or dower due has not been or paid, to file an application before a Magistrate for an order for payment of such provision and maintenance, mahr or dower, or the delivery of properties, as the case may be. 3 Section 125 of Code of Criminal Procedure would apply only if both parties exercise, their options at the first hearing of the application under Section 3(2) of the Act as contemplated under Section 5 of the Act and not in any other manner. Consequently the Magistrate cannot exercise his jurisdiction under Section 125, Criminal Procedure Code in case of a divorced Muslim woman unless an application is filed under Section 3(2) of the Act parties exercise their options as required under Section 5 of the Act. 4

Family Court The Family Court Act was an earlier enactment. If the Legislature wanted to invest jurisdiction to the Family Court they would have clearly mentioned that fact in Section 3 of the Act 25 of 1986. The Legislature purposely used the word “Magistrate”. Certainly, in respect of Mahr and 1 2 3 4

Shafaat Ahmad vs. Fashmida Sardar, I (1991) DMC 102 All. Sirajur Raheman vs. Nasim Banoo, II (1991) DMC 82 Cut. Riswana Begum vs. Mlv. Motiullah, 62 (1989) CLT 353. Sayed Newak Alli @ Nati vs. Rasida Begum, I (1991) DMC 319 Orissa.

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Law of Maintenance

other properties of divorced Muslim woman, only the Magistrate can adjudicate and the Family Court has no jurisdiction. 1 Section 3 of the 1986 Act itself recognises certain rights of divorced Muslim Woman, prescribes a forum for redress thereof and prescribes the manner of execution of the made in that behalf. This makes the Act complete in itself and does not depend for support on any other enactment. The section beings with a non-obstante clause and it over-rides all other provisions of then existing laws. All provisions contrary to what is contained is Section 3 of 1986 Act, including the Family Court, 1984, shall stand supersede by its provision. A comparison of the provisions of 1984 and 1986 Acts would also show that the purpose and scope of the two acts is some what different. Section 3 is only limited to certain claims enumerated therein which also can be put forward by a divorced Muslim Woman under the Act in the manner prescribed. In other respects it seems to us that even a divorced Muslim woman can press her claim in the Family Court. 2 An application under Section 3 of 1986 Act can lie only before the Magistrate concerned and the Family Court established under the 1984 Act cannot exercise jurisdiction unless the same had been specifically conferred upon the Family Court under the provision of Section 2(b). 3

Invalid divorce In one case the petitioner/wife stated that the talaq given by the respondent was not pronounced before any witness and it was illegal and the talaq given by the respondent to her is not in accordance with principles of Shariat and Muslim Law. The order passed by the Court below also showed that the Advocate appearing for the petitioner argued before the Court below that the talaqnama pronounced by the respondent and the talaqnama prepared by him is not as per Muslim Personal Law and, therefore, it had no sanctity under Mohammedan Law and the respondent was bound to offer an opportunity to the petitioner to negotiate and to live with him. It was observed as under: ‘The divorce must be preceded among Muslims by an attempt of reconciliation between the husband and wife by two mediators one chosen by the wife from her family and the other by the husband from his side. In the above view of the matter, a Mohammedan husband cannot divorce his wife at his within or 1

2 3

Patnam Vehedullah Khan vs. P. Ashia Khatoon, II (2000) DMC 427 AP. Amjun Hasan Siddiqui vs. Salma, II (1992) DMC 1 All. Amjun Hasan Siddiqui vs. Salma, ibid.

Muslim law—Liability of State Wakf Board

467

caprice i.e., divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement. Even if there is any reasonable cause for the divorce, yet there must be evidence to show that there was an attempt for a settlement prior to the divorce and when there was no such attempt prior to divorce to arrive at a settlement by mediators, then there cannot be a valid divorce under Mohammedan Law.’ 1

Liability of husband To hold that while maintenance may be payable for and during the period of Iddat, a fair and reasonable provision shall be made by her husband forecasting her future needs, would amount to negation of the very object for which Act of 1986 has been promulgated. It would give rise to a new concept of liability on the part of the husband which would be difficult to be translated in concrete terms as it would be almost impossible to visualize the future needs of a divorced Muslim woman which would be depending upon several factors like her remarriage change in the circumstances or in the style, etc. 2 The liability of the husband to provide a reasonable and fair provision and maintenance is limited for the period of Iddat only. Therefore, in regard to the second question as to whether the maintenance contemplated under Section 3(1)(a) of the Act of 1986 is restricted only for the period of Iddat or a fair and reasonable provision has to be made for future also within the period of Iddat, it was held that the liability to pay reasonable and fair provision and maintenance on the part of the former husband is confined only for and during the period of Iddat. Even if it is taken for granted for a reasonable and fair provision is to be made separately from that of maintenance to be given to the wife, such reasonable and fair provision is confined only for the period of Iddat, as defined in Section 2 of the Act. 3 This decision and similar decision are no longer good law because a Constitution Bench of Supreme Court has recently held that liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 4

1

2

3 4

Zulekha Begum @ Rahmathunnisa Begum vs. Abdul Raheem, II (2000) DMC 99 Karnataka. Usman Khan Bahamani vs. Fathimunnisa Begum, AIR 1990 AP 225 (FB): 1990 Cri LJ 1364. Usman Khan Bahamani vs. Fathimunnisa Begum, ibid. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India.

468

Law of Maintenance

Liability of State Wakf Board In one case it was contended that the provision concedes multiplicity of proceedings, broadly in the following manner: (1) the proceedings shall in the first instance be initiated against the children of the divorced woman; (2) if the children are unable to pay maintenance then the second proceedings shall be initiated against the parents of the divorced woman; (3) if the parents or any one of them is unable to pay the respective share of maintenance then fresh proceedings be started against the relative; (4) in case the relatives are unable to meet the claim of maintenance, fresh proceedings be initiated against 'other relatives"; and (5) finally, when no relative exists as mentioned in sub-section (1) or such relatives or any one of them unable to pay maintenance then another set of proceedings be initiated against the State Wakf Board: all backed by the orders of the Magistrate. And since the State Wakf Board comes last, it was contended that its turn instantly has not yet arrived because no proceedings have been initiated against the relatives. The Supreme Court considered the above argument and held 1 as under: ‘Going by the arguments and the reasoning adopted by the appellants, it would, in our way of thinking, have a devastating effect on the purpose for which the provision was enacted. The Drafter's pattern in sub-dividing the provision into sub-sections (1) and (2) evidently was not to cause any split in the legislative theme because the provisions, as it appears to us, is an integrated whole. One step is dependent on another. It is futile for a divorced woman seeking succour to run after relatives, be it her children, parents, relatives or other relatives, who are not possessed of means to offer her maintenance and in fighting litigations in succession against them, dragging them to courts of law in order to obtain negative order justificatory to the last resort of moving against the State Wakf Board. In or our considered view, she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her directing her claim against the State Wakf Board in the first instance. It is however, open for the State Wakf Board to controvert that the relations mentioned in the provision, or some of them, have the means to pay maintenance to her. In that event the Magistrate would perfectly be justified in adding those relatives as parties to the litigation in order to determine as towards who shall he direct his orders for payment of maintenance. In one and the same proceeding, one or more orders conceivably can be passed in favour of the divorced woman, subject of course to her not re-

1

Secretary, Tamil Nadu Wakf Board vs. Syed Fatima Nachi, 1996(4) SCC 616: AIR 1996 SC 2423: 1996 CrLJ 3488

Muslim law—Meaning of Iddat period

469

marrying and remaining unable to maintain herself. We hold accordingly.’ 1

Mahr or dower Mahr or dower is the sum of money which the wife is entitled to receive from her husband in consideration of marriage. It cannot be a consideration for divorce. It is an obligation of a husband arising from a contract, or otherwise imposed by law or custom on the husband as a token of his respect for his wife. The language of this sub-section itself makes it clear that this sum becomes payable to the wife on marriage or any time thereafter. By asking the husband to pay this amount within the Iddat period the Legislature has emphasised the urgency of payment. Mahr is a liability which does not get absolved as a result of any other payment or consequence. Therefore, Section 3(1)(c) is an additional benefit. The amount of maintenance or reasonable and fair provision cannot be confused with mahr. In fact Mahr is no substitute for it. In a given case a wife may take the mahr amount from her husband even prior to divorce because of some exceptional circumstances and spend it. 2

Major children The Mohammedan Law does not cast any responsibility upon the father for the maintenance of the two adult sons. It was further held that there was no evidence to show that they are unemployed. Thus the maintenance was denied. 3

Meaning of Iddat period The expression used is ‘within the IDDAT period’ and not ‘for the Iddat’ period. The crucial word is ‘within’ and not ‘for’. The word ‘within’ is quite plain and the contemplation of Section 3(1)(a) is to make the provision and to pay the maintenance within the iddat period. The intention of the legislature has to be gathered from the words used by it giving to the words their plain, normal and grammatical meaning. The words ‘within’ would mean ‘on or before’, ‘not beyond’, ‘not later than’. It cannot be said that ‘within’ means ‘for’ so as to limit the liability of the husband to make the provision and pay the maintenance only for the iddat period. 4 Exactly same line of reasoning has been adopted by a Constitution Bench of Supreme Court and has held that the 1

2

3 4

Secretary, Tamil Nadu Wakf Board vs. Syed Fatima Nachi, 1996(4) SCC 616: AIR 1996 SC 2423: 1996 CrLJ 3488 Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000) DMC 634 Bombay. Sugrabi vs. Abdul Quayum, I (1985) DMC 254 Bombay. Tajuddin vs. Quomarunnisa Begum, II (1989) DMC 204 AP.

470

Law of Maintenance

liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 1 The next rule, Simonds call it ‘elementary’, Lord Somervell of Harrow ‘compelling and Mukherjea, J. ‘settled’, is to read the statute as a whole so as to find out the true intention of the legislature. It is interesting to note that Clause (b) of Section 3(1) in relation to the children is specific in saying ‘provision and maintenance to be made and paid by her former husband for a period of two years.’ The word used is ‘for’, and it is not so in so far as Clause (a) is concerned. Therefore, had the legislature wanted that the liability should be confined under Clause (a) to the IDDAT period only, it could have very well used the word ‘for’ and not ‘within’, more so when it so used the word in the very succeeding Clauses (b). 2

Natural Justice The principles of natural justice must be read into the unoccupied interstices of the statute unless thee is clear mandate to the contrary. 3 Even in administrative matters where a statute does not make any specific provision for issuing notice, it has been held that where exercise of that administrative power results in civil consequences to citizens, unless the statute specially rules out the application of rules of natural justice, such rules would apply that is notice would have to be issued to the parties and he will have to be heard. 4 The matter is to be decided by a Court judicially having civil consequences on the rights of the parties. So, it appears necessary that husband should be given notice and opportunity of being heard. No doubt, Sub-Section (4) further provides that if the husband, against whom an order has been made under Sub-section (3), fails without sufficient cause to comply with the order, the Court may levy the amount or order imprisonment. But this does not appear to me that since notice is to be given under Sub-section (4), it should not be given under Subsection (3). The provision regarding maintenance is to be found under Section 125 Criminal Procedure Code. If Sub-section (1) says that upon proof of such neglect or refusal to maintain the Magistrate may direct a monthly allowance to be given to the wife. It is after hearing the husband and giving notice to him that action is taken under this provision and the 1

2 3 4

Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Tajuddin vs. Quomarunnisa Begum, II (1989) DMC 204 AP. Institute of Chartered Accountant (1986) 4 SCC 537. Baldeo Singh vs. State of Himachal Pradesh, (1987) 2 SCC 510 followed in State of Haryana v. Ram Kishen (1988) 3 SCC 416.

Muslim law—Object and scope of Act of 1986

471

Magistrate on proof of the fact may make an order. Still under Subsection (3) of Section 125, Criminal Procedure Code it has again been provided virtually in the words of Sub-section (4) of the Act that if the husband fails without sufficient cause to comply with the order, the Magistrate may order imprisonment. Thus, again opportunity is given to the husband. This latter opportunity is in fact provided not to determine liability of the husband to maintain or to give the amount of maintenance fixed by the Court but to determine the question whether there is any sufficient cause on account of which he could not comply with the order. Here the husband is not allowed to go back and start questioning the order of maintenance, rather he has only to show as to why he could not comply with it. Similar appears to be the position under the Act. Under Sub-section (3) the Magistrate has to determine after hearing the parties whether reliefs provided in that section should be given to the wife. Then comes the stage of Sub-section (4). Here the husband cannot be allowed to question the order passed under Sub-section (3) giving reliefs to the wife; rather he can only show as to why he could not comply with the order passed Sub-section (3). Thus, under Sub-section (3) and Subsection (4) different points are to be determined and the opportunity is given to the husband on both the occasions for determining the relevant point. 1

Object and scope of Act of 1986 Primary object of direction to the former husband to make fair and reasonable provision for the divorced woman is to provide for her maintenance after divorce. The quantum of provision has to be made by the former husband in accordance with his means and standard of living that is enjoyed by the divorced woman during the subsistence of the marriage. The mandate to make reasonable and fair provision is not in any way intended to harass the former husband or to enable the divorced woman to make any unlawful gain or unjust enrichment out of the divorce. It is a fair and equitable provision to be made by the former husband to his divorced wife. Even though reasonable and fair provisions has to be made by the former husband to the divorced woman within the period of Iddat if the husband has already made such reasonable and fair provisions in favour of the divorced woman even during the subsistence of their marriage it certainly is a factor to be taken into account while considering whether the former husband is liable to pay any and what reasonable and fair provisions to the divorced woman. 2

1 2

Shafaat Ahmad vs. Fashmida Sardar, I (1991) DMC 102 All. Majitha Beevi vs. Yakoob, I (2000) DMC 363 Kerala.

472

Law of Maintenance

From the provisions of the Act of 1986 and the object with which it was enacted by the Parliament, it is clear that a divorced Muslim woman is entitled to get the maintenance only upto the period of Iddat and after the period of Iddat the Muslim divorced woman is not entitled to get the maintenance from her former husband as she has lost her right in view of the provisions of Section 3(1)(a) of the Act of 1986. The Act of 1986 has completely obliterated the right of maintenance to divorced Muslim woman. 1 But this view has been overruled by the decision of the Supreme Court which has held that the liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 2 The repeal without saving such right means that such woman had never acquired such right and in the view of the matter, the said right now cannot be enforced under Section 125 Cr.P.C. Even if an order granting maintenance had been passed in favour of a Muslim divorced woman prior to the coming into force of the Act of 1986 and has become final or is pending in the revision before any Court or is being challenged by the husband, even in those cases, the Muslim divorced woman is not entitled to get the Maintenance as allowing the maintenance in those cases will be in complete contravention of the intention of the legislature and will amount to frustrate the very object of Act for which it has been enacted. No exception has been made in Section 7 of the Act of 1986, which means that neither the order passed under Section 125 Cr.P.C. nor the liability already incurred earlier to the coming into force of the Act, 1986 has been saved. The inevitable conclusion of passing of the Act of 1986 is that not only right under Section 125(1) but also the remedy under Section 125(3) Cr.P.C. are lost. Section 7 of the Act of 1986 envisaged a complete replacement of right and remedy under Section 125 Cr.P.C. 3

Object behind four marriages The original basic fundamental bedrock of the permissible right of a Muslim to have marriage of more than one women and maximum four was not motivated on in any way concerned with the general unbridled right for enjoyment of life or sex or having a company. But it was motivated with a great pious sacred object of providing protection to those orphans girls who used to become orphans on account of war or 1 2

3

Abdul Hamid. vs. Mst. Asia, I (1992) DMC 522 Raj. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Abdul Hamid. vs. Mst. Asia, I (1992) DMC 522 Raj.

Muslim law—Right to property

473

other reasons and thereafter when the society was not capable of providing them full satisfaction and looking after their necessities, then on great prophet injunction were revealed that in such cases best way to provide protection is to marry such orphans girls upto maximum of four with the rider and the condition that all must be treated alike equal and justice must be done to all of them. Any failure in this respect of the husband to give equal treatment or to provide equal justice or to provide equal protection would be violative of the basic intention of object and the purpose of protecting orphans which was kept in the tenant of Kuran Sarif by the great prophet. 1 That being so Section 125 Criminal Procedure Code enacted by the legislature meant for providing such protection in cases where after the conducting marriage justice is not done to the weaker spouse and the wife is left high and dry without maintenance on account of neglect or ill treatment or any other reason whatever the case may be. 2 It is true that the explanation added to the proviso to Sub-section (3) taken in itself alone, from the context of other clauses of this section, would give an impression that second marriage per se simplicitor in itself is sufficient to claim maintenance and nothing more is required to prove. In that context it would certainly raise a serious question of interpretation of the constitution and all of Article 25 and whether Section 125 Criminal Procedure Code Sub-section (iii) the proviso and the explanation attached to it by which a Muslim woman is entitled to claim maintenance simply on the ground of second marriage of husband would be inconsonance with or in violation of the above tenants injunction and next of the Muslim personal law. However that is a matter which would not decided in such a casual manner because at the moment neither the full text of the Muslim law has been referred to or is available nor it has been debated or there has been dialogues nor tiring process started so far in any legal Court. 3

Right to property In one case a contention was raised that in view of Section 3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act the divorced woman is entitled to all the properties given to her before, at the time or after the marriage by the husband or any relatives of the husband or his friends, the properties admittedly given by the respondent to the revision petitioner during the subsistence of 1 2 3

Amir Khan vs. Mst.Maxiasm, I (1988) DMC 189 Raj. Amir Khan vs. Mst.Maxiasm, ibid. Amir Khan vs. Mst.Maxiasm, ibid.

474

Law of Maintenance

her marriage will come within the ambit of Clauses (d) of Sub-section (1) of Section 3 of the Act and as such those properties standing in the name of the revision petitioner cannot be taken into account while considering the eligibility of the revision petitioner for reasonable and fair provision from the respondent and therefore, the lower Court is in absolute error in disallowing her claim for reasonable and fair provision under Clauses (a) of Sub-section (1) of Section 3 of the Act, is not sustainable. The properties referred to in Clauses (d) of Section 3(1) of the Act cannot be construed as properties in its widest sense, as the revision petitioner wants in this case. The word ‘property’ occurring in Clauses (d) of Section 3(1) should be considered on a strict and restricted sense than the wide amplitude given to the word in common parlance. If the word ‘property’ in Section 3(1)(d) of the Act is interpreted so widely so as to embrace the vast properties or the entire properties acquired by the former husband in the name of his divorced wife during the subsistence of the marriage, it will jeopardise the very intentment of providing reasonable and fair provision by the former husband to his divorced wife. From the Quranic injunction and the provisions of Section 3(1) of the Act referred to above, it is patent that the idea behind the former husband providing reasonable and fair provision at the time of divorce to his divorced wife is to protect her from destitution and vagrancy due to the divorce. Therefore, by a reasonable, pragmatic and harmonious interpretation of the provisions of the Clauses (a) and (d) of Subsection (1) of Section 3 of the Act, it is clear that Clauses (d) deals with the properties given by the former husband to the divorced wife during the subsistence of the marriage by way of gift or otherwise. But Clauses (d) of Sub-section (1) of Section 3 does not take in the entire or the major portion of the property acquired by the husband during the subsistence of the marriage in the name of his wife due to his own reasons for such acquisition without the interim to give the property to the wife as her exclusive property. 1

Object of granting maintenance Primary object of direction to the former husband to make fair and reasonable provision for the divorced woman is to provide for her maintenance after divorce. The quantum of provision has to be made by the former husband in accordance with his means and standard of living that is enjoyed by the divorced woman during the subsistence of the marriage. The mandate to make reasonable and fair provision is not in any way intended to harass the former husband or to enable the divorced 1

Majitha Beevi vs. Yakoob, I (2000) DMC 363 Kerala.

Muslim law—Obligation of Muslim father

475

woman to make any unlawful gain or unjust enrichment out of the divorce. It is a fair and equitable provision to be made by the former husband to his divorced wife. Even though reasonable and fair provision has to be made by the former husband to the divorced woman within the period of iddat yet if the husband has already made such reasonable and fair provision in favour of the divorced woman even during the subsistence of their marriage it certainly is a factor to be taken into account while considering whether the former husband is liable to pay any and what reasonable and fair provision to the divorced women. 1 A Muslim husband is liable to make reasonably and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2

Obligation of Muslim father Maintenance for the prescribed period referred to in Clause (b) of Section 3(1) is granted on the claim of the divorced mother on her own behalf for maintaining the infant/infants for a period of two years from the date of the birth of the child concerned who is/are living with her and presumable is aimed at providing some extra amount to the mother for her nourishment for nursing or taking care of the infant/infants upto a period of two years. It has nothing to do with the right of the child/children to claim maintenance under Section 125, Cr.P.C. So long as the condition for the grant of maintenance under Section 125. Cr.P.C. are satisfied the rights of the minor children, unable to maintain themselves, are not affected by Section 3(1)(b) of the 1986 Act. Under Section 125, Cr.P.C. the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as she is in position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125, Cr.P.C. which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable unfair inequitable and even prosperous to deny the benefit of Section 125, Cr.P.C. to the children only on the ground that they are born of Muslim parents. The

1 2

Majitha Beevi vs. Yakoob, II (1999) DMC 699 Kerala. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India.

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Law of Maintenance

effect of a beneficial legislation like Section 125, Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. 1 Both under the personal law and the statutory law (Section 125 Cr.P.C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of female till they get married, it absolute, notwithstanding the fact that the minor children are living with the divorced wife. 2 The children of Muslim parents are entitled to claim maintenance under Section 125, Cr.P.C. for the period till they attain majority or are able to maintain themselves, whichever is earlier, and in case of females, till they get married, and this right is not restricted, affected or controlled by divorcee wife’s right to claim maintenance for maintaining the infant child/children in her custody for a period of two years from the date of birth of the child concerned under Section 3(1)(b) of the 1986 Act. In other words Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under Section 125, Cr.P.C. till they attain majority or are able to maintain themselves, or in the case of females, till they are married. 3

Payment of mehr The quintessence of mehar whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upon divorce. Indeed, dower focuses on marital happiness and is an incident of connubial joy. Divorce is farthest from the thought of the bride and the bridegroom when mehar is promised. Moreover, dower may be prompt and is payable during marriage and cannot, therefore, be a recompense for divorce too distant and unpleasant for the bride and bridegroom to envision on the nuptial bed. Maybe, somehow the masculine obsession of jurisprudence linked up this promise or payment as a consolidated equivalent of maintenance after divorce. Maybe, some legislatures might have taken it in that light, but the law is to be read as the law enacted. The language of Section 127(3)(b) appears to suggest that payment of the sum and the divorce should be essentially parts of the same transaction so as to make one the consideration for the other. Such customary divorce on payment of a sum of money among the 1

2 3

Noor Saba Khatoon vs. Mohd. Quasim, AIR 1997 SC 3280: 1997(6) SCC 233: 1997(5) Scale 248: 1997(7) JT 104: 1997(2) Ker.LT 363: 1997(2) BLJR 1633. Noor Saba Khatoon vs. Mohd. Quasim, ibid. Noor Saba Khatoon vs. Mohd. Quasim, ibid.

Muslim law—Period of maintenance

477

so-called lower castes are not uncommon. At any rate the payment of money contemplated by Section 127(3)(b) should be so linked with the divorce as to become payable only in the event of the divorce. Mehar as understood in Mohammedan Law cannot, under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connubial relationship. Under Section 127(3)(b) of the Cr.P.C., an order for maintenance may be cancelled if the Magistrate is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce. Even by harmonising payments under personal and customary laws with the obligations under Sections 125 to 127 of the Cr.P.C., the conclusion is clear that the liquidated sum paid at the time of divorce must be a reasonable and not an illusory amount and will release the quondam husband from the continuing liability, only if the sum paid is realistically sufficient to maintain the ex-wife and salvage her from destitution which is the anathema of the law. This perspective of social justice alone does justice to the complex of provisions from Section 125 to Section 127 of the Criminal Procedure Code. 1

Period of maintenance The Magistrate observe that under Section 3(1)(a) the first respondent was entitled to get reasonable and fair provision for maintenance for the iddat period and for his period she is not entitled to get maintenance for the child. This proposition is clearly illegal. What has been mentioned under Section 3(1)(a) is the reasonable and fair provision and maintenance for the iddat period. The right of the child to get maintenance for a period of two years from the date of birth is an independent right which cannot be affected by the claim of the mother for any reasonable and fair provision for maintenance due to the mother under Section 3(1)(a) of the Act. The liability of the father to maintain his child for a period of two years. under Section 3(1)(b) of the Act is independent of the provision to pay reasonable and fair provision for maintenance of wife. The Magistrate was not justified in limiting the maintenance for a period of 21 months instead of 24 months. The first respondent-wife is in fact entitled to get Rs. 600/- more towards this count. 2

1

2

Fuzlunbi vs. K. Khader Vali, AIR 1980 SC 1730: 1980 CrLJ 1249: 1980 CrLR (SC) 524: 1980 SCC (Cr) 916: 1980 CAR 246: 1980 BBCJ 77. Abdul Sathar vs. Arifa Beevi, I (1991) DMC 275 Ker.

478

Law of Maintenance

Principles of law The principle of law in regard to grant of maintenance to a Muslim Law are as under:— (i) A divorced Muslim woman is entitled to and can claim maintenance only under the provision and in accordance with the procedure provided under Section 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act. (ii) She is entitled to claim maintenance from her former husband for and during the period of iddat and besides that she is also entitled to claim dower amount agreed at the time of marriage and other properties which were given to her by her relatives and friends at the time of marriage or thereafter. (iii) In case a divorced woman is not re-married and is not able to maintain herself after the expiry of iddat, she may bring an action claiming maintenance and she may be entitled to get maintenance in accordance with the procedure provided under Section 4 of the said Act. (iv) After the enactment of the aforesaid Act a divorced woman is not entitled to bring an action for the said remedy under Section 125 of the Code of Criminal Procedure.” 1 However a Constitution Bench of Supreme Court in a recent decision, held 2 as under: ‘1. A Muslim husband is liable to make reasonably and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2. Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 3. A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

1

2

Bibi Shahnaz @ Munni vs. State of Bihar, II (1999) DMC 589 Patna: 1999(1) HLR 137. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India.

Muslim law—Procedure of talaq

479

4. The provisions of the Act 1 do not offend Articles 14, 15 and 21 of the Constitution of India.’

Procedure for application of Act of 1986 Section 5 of the Act, has laid down therein that if in an application filed under Section 3(2) of the Act the divorced woman and her former husband jointly or separately request the Magistrate on the date of first hearing of the application that they would prefer to be governed by the provisions of Section 125 to 128 Cr. P.C., then the Magistrate will dispose of the application accordingly. When no application under Section 3(2) was filed, Section 5 is not attracted at all. 2 Under section 3(2), where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or all the properties given to the divorce woman before or at the time of marriage of after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends have not been delivered to her on her divorce, she may file an application before the Magistrate for an order for payment of the same. 3

Procedure of talaq The intention of the Legislature being that persons living as husband and wife may not play fraud on the legislation or the Socialist scheme of equitable distribution of land by pretending separation among themselves as wife and husband to deprive the State of acquiring the essential surplus land with them and mar the social objects of the Legislature provided that husband and wife, not necessarily breaking their ties of marriage by decree of annulment of marriage or divorce, yet for reasons, living separately as separated wife and husband and that the separation is the result of not their own act of volition but is resultant from the decree of the Court granting judicial separation on the ground of law such judicially separated wife or husband though their marriage ties may continue and survive may get the benefit of expression of the judicially separated wife or husband and such a wife or husband who has been judicially separated is not to be considered to be the member of the family of either for the purpose of determination of ceiling area of the tenure-holder or for declaration of surplus land. The intention of the framers of law appears to be that the judicially separated wife’s property may not be subjected to any adverse effect by being clubbed with that of

1 2 3

Muslim Women (Protection of Rights on Divorce) Act, 1986 Nasiruddin vs. Dulari Bibi, I (1992) DMC 228 Ori. Nasiruddin vs. Dulari Bibi, ibid.

480

Law of Maintenance

her husband and similarly the husband in such a case where there has been judicial separation under the decree of the Court may not be deprived of his holding merely by the clubbing of the wife’s holding with his holding and on the basis thereof his or his wife’s holding being declared as surplus. When that is the intention then a question arises whether it would have been the intention of the Legislature to deprive a divorced woman of her holdings or to make her holding subject matter of its being clubbed and being declared as the part of surplus land of her husband, the tenure-holder and thereby she herself being deprived of her holding of property. 1 The plight of a divorced woman can be realised and has been realised by learned Judge of this Court. Marriage is a status which creates vested rights and interest of cohabitation, succession and maintenance. It brings a bloom to the life. The divorce brings a plight of vagaries of life and upheaval in the life of a woman at times in the life of man. Under Hindu Law the concept of divorce had not been known till before the introduction of Hindu Marriage Act and it was for the first time the concept of divorce stepped in. Howsoever strained relation between husband and wife would have been it was and has been a social and legal obligation of the husband under the law known as Hindu Law to maintaining his wife all through his and her life. The introduction of Hindu Marriage Act introduced concept of divorce and a divorced woman or a judicially separated woman had been declared entitled to claim maintenance from her husband vide Sections 24 an 25 of the Hindu Marriage Act uptill the time she does not remarry or does not become subject to disqualification under Sub-section 3 of Section 25 of Hindu Marriage Act. Under Criminal Procedure Code as well it has been provided that a divorced woman would be entitled to claim maintenance from her husband as per Explanation (b) to Section 125 Cr.P.C. 2 Under Muslim Law the plight of a Muslim woman, divorced by her husband is more pathetic particularly the weak one. As the state of affairs in India under Muslim Law is claimed to exist and operate, it is the husband who has got a free hand to divorce his wife as and when he desires and even orally by reciting Talaq thrice or by reciting three Talaq in one sentence. Whether that law is in consonance with the Constitution or spirit of the Constitution. The poor Muslim woman has been held to be entitled to maintenance for a limited period of three months and then is left to the vagaries of fate after the expiry of period of three months unless she succumbs to the circumstances of re-marrying someone, as a 1 2

Rahmat Ullah vs. State of U.P., 1994 (2) DMC 64 All. Rahmat Ullah vs. State of U.P., ibid.

Muslim law—Procedure of talaq

481

divorced Muslim woman who may be entitled for the maintenance of Iddat period of three months has been subjected to statutorily directed litigation against such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to ay reasonable and fair maintenance. The divorced woman and the Magistrate are required to locate affluent relative of indigent divorcee forgetting the reality of the life that a poor woman has ordinarily got poor relatives with insufficient means to support and maintain her. Whether it will be just and proper to subject such a lady to duel misery i.e. of loss of right of maintenance from divorcing husband on one hand and on the other depriving her of her holding by clubbing those holdings with that of her husband simply on technical ground to the effect that she has not got a decree for divorce and on that ground by treating her to be the family member of the husband who has already divorced her. Law has got to be interpreted keeping in view the basic and fundamental principles of the law of the Constitution of India and in particular the concept of justice, social and economic and political enshrined in the Constitution and principle of equality before law and equal treatment of law keeping pace with rationality or to say the reason and free from any type of bias or discrimination on the ground of sex or religion. 1 The dissolution of marriage in these form of Ila, Zihar, Khula and Mubarat per se shows that under these forms, the divorce by itself does not become effective and husband and wife have been provided ample opportunity of rethinking as well as for retracing the step taken towards divorce before the divorce becomes effective under Ila or Zihr till before the passing of decree for divorcee. In the same way the Khula and Mubarat i.e. dissolution of marriage also provides for ample opportunity to husband and wife to consider and re-consider the disputes amongst them, to find out ways and means to obviate and remove the causes leading to aversion and desire of separation and to come to an agreement or Settlement to lead a fresh and happen life as husband and wife and in particular keeping in view the disastrous consequences of dissolution of marriage or divorce before the same takes place in irrevocable manner. It is well known that the a moment the divorce becomes irrevocable there can be no tracing back of the steps either by husband or by the wife except undergoing of the wife to the harshness of what is known as Halala or the like as referred to above on one hand and other of the poor woman being placed to another agony of losing the right of maintenance by husband. 2 1 2

Rahmat Ullah vs. State of U.P., 1994 (2) DMC 64 All. Rahmat Ullah vs. State of U.P., 1994 (2) DMC 64 All.

482

Law of Maintenance

Talaq-ul-Bidaat or talaq against the injunctions of Quoran is a sin. It is some act which is tantamount to think against the injunction of Allah and so immoral and irreligious. If it is irreligious than Talaq Bidaat definitely does not come eviction the frame work of the expression religion or “religious freedom” and such a mode of talaq as claimed or relied on by petitioner being based on some practice or custom which appears to have developed in breach of the basic tenets of Islam. Right to religion under Article 25 of the Constitution does not extend to the deeds, practice, customs, acts or actions including acquisition or creation of property by irreligious or by immoral means or means or modes running in conflict with the basic tenets and ordains of the Holy Book of that religion simply on the pretence of name of that religion, so Talaq-Bidaat is not a religious right. It appears to be against the basic tenets of Islam or Holy Quoran. Further as I have already mentioned this mode of Talaq being against the doctrine and principles enshrined in various provisions of the Constitution referred to above including the preamble of the Constitution which lays emphasis on and grants assurance to on the dignity of individual and under Article 51A, this mode of divorce and the period cannot be deemed to apply in India under Section 2 of the Shariyat Application Act i.e. Act no. 26 of 1937, read with Article 372 of the Constitution of India. Considering on both the counts it appears that Talaq-ul-Bidaat i.e. making of irrevocable talaq at once at one sitting in any form even if might have been part of Shariyat Law or present law of Muslims in Arab having developed during Ommayyade regime but the same is not operative under Section 2 of Shariyat Application Act or Article 372 of the Constitution of India nor can be deemed to be continuing in operation. 1

Proof of divorce In Mulla’s Book on Principles of Mohammedan Law 2, it is mentioned that for oral Talak if the words are expressed or understood as implying divorce, then it becomes effective for Talak. It is also mentioned, that it is not necessary that the Talak should be pronounced in the presence of the wife or even addressed to her. The learned Writer has also expressed 3 that the ‘Talak pronounced in the absence of the wife takes effect, though not communicated to her, but for the purpose of Dower it is necessary that it should come to her knowledge and her alimony may continue till she is informed about the divorce.’ 1 2 3

Rahmat Ullah vs. State of U.P., ibid. 18th Edition at pages 326 and 327 On page No. 327 of the same book

Muslim law—Proof of divorce

483

In one case a husband was declared to have divorced his wife in the presence of the witnesses but at time of this declaration, presence of the wife was not proved. From the contents of reply to the notice of the wife, the fact of the knowledge of divorce was communicated to the nonapplicant/wife for the first time on 5.1.1989 and under these circumstances the learned Additional Session Judge awarded an additional amount of maintenance amounting to Rs. 7,600/- which was held to be not in violation of any law. 1 Upon a consideration of all material as available on record including the Talaknama executed on 10.8.1996 by the husband before the Chief Imam of Uluberia Jamma Masjid, it was held that the factum of divorce of the wife by the husband has been duly proved in accordance with the provisions of Mohammedan Law and also the provisions contained in Section 2(a) of the Muslim Women (Protection of Right on Divorce) Act, 1986, it was held that in the fact and circumstances of the case it cannot be said that the proceeding under Section 127 of the Code was not applicable in this case. 2 Even through it is unilateral power of the husband to pronounce a talak, the law prescribes certain modes of effecting even oral talak. Whether in a particular case there is divorce or not, will always depend on establishment of the facts which constitute the same. It will not be a question of fact alone, but a mixed question of law and fact. The first party being, whether talak has, in fact, taken place and the other part of the question would be, whether that is in accordance with the principles of Mohammedan Law. The question as to how a talak can be effected and whether in the facts and circumstances of a given case, the talak, as alleged by the husband was in fact effected and whether that is legal and valid, are the questions which are required to be decided in the facts and circumstances of each case. 3 The pleading is one thing and proof in another. Pleading is formal allegation by the parties of their respective claims and defences to provide a notice of what is to be expected at trial and proof is establishment of fact by leading evidence. There is no authority to the proposition that mere allegation in the pleading by itself should be taken either to be a proof of the fact alleged or ever otherwise to be independently as a declaration of existence of cessation of legal 1 2

3

Gulam Hasan vs. Johra Bi, I (1996) DMC 348 MP. Kousher Ali Lasker vs. Moslema Bibi, I (2001) DMC 350 Calcutta. Saira Bano vs. Mohd. Aslam Ghulam Mustafa Khan Sherwani, I (2001) DMC 457 Bombay.

484

Law of Maintenance

relationship between the parties. It is, however, not legal and valid or is not otherwise proved, the statement of the husband should itself be taken as a declaration of divorce. 1 Pleading in course of proceeding or any statement made in the witness-box or in any application is for the purpose of making out a case by parties, and evidence is led for supporting the case by parties, and evidence is led for supporting the case already pleaded. The Forum of Judicial proceedings cannot be used for declaring existence or cessation of legal relationship between the parties and, therefore, mere contention in the written statement or in any application or in plaint by itself cannot be accepted to be either an acknowledgement of divorce already given specially even without deciding upon the validity the legality of the earlier divorce. It can never be said to mean a fresh declaration of divorce from the date of such assertion being made in the proceedings or even from the date when it is stated in the proceedings. The Court proceedings should be confined to the assertion of facts by parties and to the proof of facts so asserted or alleged and not for any other purpose specially for acknowledgement of declaration of divorce. It is, however, an altogether different thing if the parties settle their disputes and the settlement is recorded and decree on terms passed. The rights and interests of the parties cannot be jeopardised by a unilateral statement made during the course of proceedings by the other party either orally or in writing. 2 Similar view has been expressed as under: ‘Written statement is a pleading. Pleading is one thing and proof is another. Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is to be expected at trial. Proof is establishment of a fact by evidence or matter before the Court or legal Tribunal . Where the parties are in dispute as regards a material fact, in averment in the pleading does not constitute evidence, as what is stated in the pleading is recital of past even which is required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it follows that the Court considers or believes that the fact does not exist. Therefore averment in the pleading cannot be used in favour of the maker. This being the position, statement made by the husband in his pleading or deposition that he has divorced his wife is recital of past event, and, if talak pleaded is not proved such statement shall be of no consequence. In that view of matter, if statement made by the husband that he had divorced his wife in his pleading or deposition is considered as an acknowledgement 1 2

Saira Bano vs. Mohd. Aslam, ibid. Saira Bano vs. Mohd. Aslam, ibid.

Muslim law—Reconsideration of order

485

of divorce by talak, it will be against the policy of law, and it would also amount to furnishing or providing evidence to talak, which is against the rule of pleading and proof.’ 1 Therefore divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference, if the statement made orally in evidence or in the written statement that the husband his divorced his wife in a proceeding under Section 125 Criminal Procedure Code, 1973 will be valid talak from the date of making statement cannot be sustained as it would be contrary to above conclusion. 2 Another view is as under: ‘Where in proceeding started under Section 488(old): 125(new), Cr.P.C. by a Mohammedan wife against her husband for her maintenance, the husband states in the written statement that he had already divorced his wife and the Court comes to the conclusion that divorce pleaded is not proved, then such a statement in the written statement itself operates as an expression or declaration of divorce by talak, and the divorce would be held to take effect at least from the date on which the written statement was filed by the husband. The reason for the decision is that the statement made by the husband orally in the deposition or in his written statement that he had divorced his wife in an acknowledgement of talak alleged to have effected by him already and, therefore, the divorce would be held to have effect at least from the date upon which the acknowledgement in made.’ 3

Reconsideration of order Sub-Section (3) of Section 127 provides that where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, Magistrate shall, if he is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order. This provision will no doubt help a petitioner in case he has pleaded in the application filed by him under Section 127, Criminal Procedure Code that either prior to or subsequent to the order passed under Section 125 Criminal Procedure Code that opposite party received the whole sum

1 2 3

Zeenat Fatema Rashid vs. Iqbal Anwar, II (1993) DMC 49 Gauhati. Zeenat Fatema Rashid vs. Iqbal Anwar, ibid. Asmat Ullah vs. Mst. Khatun Unnisa, AIR 1939 All 592; Wahab Ali vs. Qamro Bi, AIR 1951 Hyderabad 117, Chand Bi vs. Bandesha, AIR 1961 Bombay 121; Abdul Shakoor vs. Kulsum, 1962(I) CrLJ 247 and Mohammad Ali vs. Fareedunisa, AIR 1970 AP 199.

486

Law of Maintenance

which under the customary or personal law, particularly Act 25 of 1986 was payable to her divorce. 1

Refusal co-habit The husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders. 2 The husband has a duty to maintain his wife. In no uncertain terms the Article says that the husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders. The husband can refuse to maintain the wife is if she is disobedient. This, however, is also conditional in that refusal on the part of the wife must be unjustified and that she does not leave the husband’s house on account of his cruelty. Thus, just as the wife does not have an absolute right to maintenance, the husband also does not have a licence to treat the wife with cruelty. This is clarified by Article 278 which deals with order of maintenance. This Article categorically provides that if the husband neglects or refuses to maintain the wife without any lawful cause, the wife may sue for maintenance. The only limit is that wife cannot sue for past maintenance unless there is an agreement to the contrary. 3 In one case the wife had specifically pleaded allegations of cruelty and she had also specifically pleaded the allegations of unchastity which had been made against her. She had also categorically stated that on one occasion the mother of defendant almost split the ear lobe of the wife whilst trying to remove one of the ear rings from her ear. It was held that although all these facts are sought to be denied, yet this stage it is the word of the plaintiff against the word of the defendant. 4

Retrospective application of Act of 1986 Vested rights of parties cannot be taken away by implication. Significantly while under Section 5 of the Muslim Women Act there is a specific reference to Section 125 to Section 128 of the Code in the transitional provision contained in Section 7, Section 128 of the Code which speaks of enforcement of order of maintenance is absent which clearly indicates the intention of the Legislature to protect the crystallised or vested rights of a divorced Muslim woman. Every statute 1 2 3

4

S.K. Nasiruddin vs. Dulari Bibi, II (1991) DMC 403 Orissa. Article 277 Tabassum Shaikh vs. Shaikh S.J. Shaikh, I (2000) DMC 95 Bombay. Tabassum Shaikh vs. Shaikh S.J. Shaikh, I (2000) DMC 95 Bombay.

Muslim law—Retrospective application of Act of 1986

487

is prima facie prospective in operation unless it is expressly or by necessary implication made to have retrospective operation. The procedural laws are normally treated to be retrospective, while the laws relating to vested rights are prospective. Wider retrospective operation is not to be given to a statue if its language does not necessities it. 1 The rights of a divorced woman which have been finally determined and taken the shape of judgments or orders of Courts of law prior to the coming into force of the Muslim Women Act will have to remain untouched and protected. This rests on the sound principle that in respect of transactions which are complete at the time when the new enactment comes into force, if new disabilities or obligations are created it will work great injustice. Courts are concerned with problems of destitute women and their crystallised rights. The usual presumption against retrospective will operate with greater rigour in this case. The Muslim Women Act is not made retrospective by express words. There is no manifestation of such intention either by express words or by necessary implication. 2 There is obviously no express provision in the Muslim Women Act. Nor is there any necessary intendment suggesting retrospective operation. In fact while under Section 5 of the Muslim Women Act the Legislature has made a specific reference to the provisions of Section 125 to 128 of the Code. Section 7 clearly omits reference to Section 128. It merely refers to Section 125 and Section 127 of the Code. Nothing prevented the Legislature from adding Section 128 in Section 7 of the Muslim Women Act. This omission is intentional. It intends to keep the vested and crystallised rights of divorced Muslim women intact. 3 Mere non-mention in the statute that it is retrospective is not sufficient to hold that the statute has only prospective operation. The act is a declaratory one. The presumption against retrospective operation will not apply to declaratory statutes. The preamble of the Act sheds sufficient light as to whether it is prospective or retrospective. The preamble reads: “An Act to protect the rights of Muslim woman who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto”.

1

2 3

Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000) DMC 634 Bombay. Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, ibid. Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000) DMC 634 Bombay.

488

Law of Maintenance

From the preamble it is very clear that the Act applies to Muslim women who have been divorced or have obtained divorce from their husbands. From a reading of the Act it is not possible to discern that it has only prospective operation. 1 As the Act declares duties and liabilities of a Muslim husband with a view to give adequate protection to the divorced wife and as preamble of the Act itself states that it is applicable to every divorced Muslim wife, contention that it has no retrospective operation is not tenable. There is no logic in holding that the Act for the first time introduced a burden on the Muslim husband to provide for reasonable and fair provision and maintenance to the divorced wife. The Act should be considered only as retrospective. Contention that the Act is only prospective and that the respondent having been divorced prior to the commencement of the Act is not entitled to invoke the provisions of the Act is without any merit. 2 The question of retrospective application was considered by Supreme Court in a recent decision 3 but no finding in this regard was given in the operative portion of the judgement. But from the tenor and the ultimate finding which holds a husband liable to make provision for maintenance of wife till she is remarried, with in the period of iddat while holding the liability of husband shall not be limited till the period of iddat only, it appears that the existing orders are not obliterated merely by the enactment of Act of 1986.

Return of gifts There was no tangible evidence on record to establish that the amount of Rs. 50,000/- is given by the father of the wife as a gift so as to entitle her to get back the amount under Section 3(1)(d) of the Act. If it is a loan advanced by the father of the wife, he may have his civil remedy to recover the amount. It was held that by no stretch of imagination the amount of Rs. 50,000/- alleged to have been paid by the father of the wife can be construed as a gift by her father to the husband coming within the ambit of Section 3(1)(d) of the Act. Therefore, the order passed by the learned Magistrate directing the husband to pay Rs. 50,000/- to the respondent under Section 3(1)(d) of the Act was held to be absolutely illegal. 4

1 2 3

4

Hyderkhan vs. Meharunnissa, II (1992) DMC 382 Ker. Hyderkhan vs. Meharunnissa, ibid. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Nizar vs. Hyrynneessa, I (2000) DMC 29 Kerala.

Muslim law—Right of child

489

Right of child The children are entitled to maintenance for period till they attain majority or are able to maintain themselves. The said right of children is not restricted, affected or controlled by Section 3(1)(b) of the Muslim Woman Protection of Rights on Divorce Act. 1 There is provision which debars the Muslim woman, who is maintaining her child or children born to her before or after her divorce, to claim maintenance from her former husband and, therefore, Section 3(b) of the Act cannot be said to create any bar for the Muslim woman, who is divorced, to claim maintenance for her child or children born to her before or after her divorce from her former husband. The legislative intention of Section 3(b) appears to be that irrespective of any other law and the divorce of a Muslim woman if she is maintaining the children born to her before or after her divorce she is entitled to claim maintenance from her former husband for a period of two years from the respective date of birth of such children. It does not take away the right of the minor child to claim maintenance from his or her father even after his or her mother has been divorced. The right which is conferred on the minor child of claiming maintenance under Section 125 of the Criminal Procedure Code cannot be said to have been taken away by the provision contained in Section 3(b) of the Act of 1986. The provisions of Section 125 of the Criminal Procedure Code which provide for maintenance of both legitimate and illegitimate child are neither diluted nor made redundant by Section 3(b) of the Act of 1986. Harmonious construction of Section 125 of the Code of Criminal Procedure and Section 3(b) of the Act of 1986 leads to an irresistible conclusion that the Muslim minor child or children have to be maintained by their parents. If the conditions requisite under Section 125 are fulfilled. While Section 3(b) entitles the divorced Muslim woman to claim maintenance for the children born to her before or after the divorce from her former husband for a period of two years from the respective dates of birth of the children, the said section does not take away the right of the minor Muslim child or children to claim maintenance from his or her father even if the mother has been divorced and has attained the status of divorced Muslim woman. 2 The welfare of the child is a paramount consideration, he or she may be of any class, caste or creed. How can the welfare of the child be looked into if such child is not properly maintained ? If the child is born from the wedlock or otherwise because Section 125 of the Criminal 1 2

Abdul Mannan vs. Saira Khatoon, I (2001) DMC 387 Patna. Noor Jehan vs. State of Maharshtra, I (1996) DMC 120 Bombay.

490

Law of Maintenance

Procedure Code entitles even the illegitimate minor child to claim maintenance, it is the bounden duty of the parents to maintain him or her whether the marriage is subsisting or not, if he or she was born from the wedlock or otherwise. The maintenance of the child being an imperative factor, the Legislature while enacting the Act of 1986 making provision for protection of rights of Muslim woman, has not taken away the right of the minor children to claim maintenance even after divorce of the former spouses. 1 Section 3(1)(b) of Act of 1986, provides that a divorced woman shall be entitled after the divorce to get maintenance allowance for children for a period of 2 years from the date of birth. It does not deal with the right of the children to obtain maintenance from their father upon the divorce of their mother. The Act has been enacted to protect the rights of Muslim woman who have been divorced from their husbands and to provide for matters connected therewith or incidental thereto. The Act does not supersede the provisions of Section 125 Criminal Procedure Code insofar as they relate to the grant of maintenance allowance to the children. 2 The maintenance was awarded much earlier to the commencement of Act 25 of 1986 because the right conferred on a divorced Muslim women is not taken away by Act 25 of 1986. Further, it was held that as per Section 3 of the Act, a divorced Muslim women is also entitled to claim maintenance for the child for a period of two years, giving an additional safeguard to her under Act 25 of 1986. But there is no provision under the Act, taking away the right of the child to claim maintenance under Section 125, Criminal Procedure Code. Therefore, the child can claim maintenance under Section 125, Criminal Procedure Code. Therefore, even the child can claim maintenance under the guardianship against the father under Section 125, Criminal Procedure Code. Therefore, it was held that the court below had erred in cancelling the maintenance granted to the child. 3 The right of the child to claim maintenance, may be by applying through a next friend or guardian of such child if a minor, is entirely different from the right which is conferred under Section 3(1)(b) of the Muslim Women Act on a Muslim wife herself. The right there under is one which is conferred not on the child but on the wife or the mother of the child. It provides for the benefit of the divorced wife that where she

1 2 3

Noor Jehan vs. State of Maharshtra, ibid. Anwaar Ahmad vs. Sabida, I (1996) DMC 177 All. M.A. Hameed vs. Arif Jan, I (1991) DMC 366 AP.

Muslim law—Right of child

491

herself maintains the children born to her from the husband before or after her divorce, a reasonable and fair provision by way of a maintenance allowance to her has to be made and paid accordingly by her former husband for a period of two years from the respective dates of birth of such children. It is under Section 3 of the Act. 1 The child itself would have no locus-standi to apply. The amount for the purpose of maintenance of the child would only be entitled to be claimed by the divorced wife as such and in the mother’s own right. Therefore, while under the provisions of Section 125 Code of Criminal Procedure, it will be the right of the minor child herself to claim maintenance against her father under Section 3 of the Muslim Women Act as such the right to claim an amount of maintenance allowance as a fair provision, from the husband is what is given to the divorced wife, for the purpose of the maintenance of the child. That is, the right to claim maintenance stands vested, under the Act of 1986 in the divorced wife and not in the child itself, for whose sake the amount of maintenance is claimed. That distinction is much too transparent to be confused for advancing a contention that with the attainment of the age of two years by the opponent child, her right granted under the provisions of Section 125(1)(b) of the Code of Criminal Procedure to claim maintenance from her father, cannot to said to have come to be extinguished. It remains as much intact as it was, at the date of passing of the order under Section 125(1)(b) as it would be at the date of her attainment of full two years of age. The right would of course of enforceable subject only to the duration which is provided under Section 125 of the Code of Criminal Procedure itself and cannot be sought to be curbed on the strength of the provisions of the Muslim Women Act 1986. therefore, it is no open to the petitioner-husband to contend that he stands free of all liability and obligation under the order passed against him and in favour of the child, under Section 125 of Code of Criminal Procedure the moment the minor child, the daughter attains the age of two years. 2 As far as the contention that under the Mohammedan Law, minor children are entitled for maintenance only for a period of two years and not thereafter is concerned the said question cannot be raised by the petitioner who has no interest in the lis. If at all such question is to be raised, the same could have been raised by the husband. The husband 1

2

Syed Mushtaque Ahmed vs. Tasneem Kausar, I (1991) DMC 524 Bombay. Syed Mushtaque Ahmed vs. Tasneem Kausar, I (1991) DMC 524 Bombay.

492

Law of Maintenance

having agreed and consented to maintain the children till majority as is reflected in the orders he cannot go back on his consent. The third party does not have any right to nullify such consent and intervene in the matter between husband, wife and children. The provision of the Family Court is applicable to the family as defined in the said Act. However, stretching the scope and ambit of the said provisions, the petitioner cannot be included in the family concerned in the proceeding for maintenance. 1 Section 125 is a part of criminal procedural law enacted with the object of providing quick remedy in a summary way to a class of persons who are unable to maintain themselves. In its application it makes no distinction amongst the members of such class on the ground of caste, creed, sex or religion. It extends its protective and beneficial arms to all and sundry of that class. It is thus secular in character and knows no religious barriers, particularly in the cases of maintenance of children who are unable to maintain themselves. Religion of the persons, who are liable and responsible to support them does not disturb the scheme underlying this beneficial provision having social overtones and aiming at preventing vagrancy immorality, crime and destitution in society. Since minor’s right for maintenance springs from the very relationship of the minor children with his parents, it is, under Muslim’s Personal Law, his birth right and an absolute liability of the father. Under Hindu Law the famous words of Manu, as cited in Mitakshara and referred to by Mulla in Hindu Law sixteenth Edition page 549 that “that aged parents a virtuous wife and an infant child must be maintained even by doing a hundred misdeeds” show the depth and height of the moral obligation cast on a Hindu father to maintain besides others, his minor children. 2 The moral obligation of a father to maintain his children who are unable to maintain themselves has since been given statutory recognition by certain Personal Laws like the Hindu Adoptions & Maintenance Act, 1956; Muslim Persona Law (Shariat) Act, 1937, the Muslim Women (Protection of Right on Divorce) Act, 1986, Parsi Marriage and Divorce Act, 1936. But neither the moral sanction provided by religion to minor’s right for maintenance by his parents nor the statutory recognition of such right by the Personal Law of the parents disturbs the scheme underlying Section 125 in so far as minor’s right of maintenance is concerned. So long as a minor child to unable to maintain himself (his inability on the ground of minority is to be considered according to the provisions of the 1

2

Shamim Ahmad vs. Judge, Family Court, Azmgarh, 1999(1) HLR 40 All. Wafatan (Smt.) vs. Jamil Ahmed, 1999(1) HLR 242 Rahasthan.

Muslim law—Right of child

493

Indian Majority Act, 1875) he is legally entitled to claim maintenance from his father who has sufficient means to maintain him. In the very nature of his such right neither the law relating to the subsisting or broken marital relationship of his mother with his father and her own right of maintenance from her husband under such law nor the sanction of religious morality behind such a right affects the absolute and birth right of the minor for maintenance from his father under Section 125 Criminal Procedure Code. 1 The law relating to and governing the guardianship of the minor child by either of the spouse during the period of his minority also becomes irrelevant in the application of his right under Section 125 Criminal Procedure Code. Neither any prescription of any time or period regarding the guardianship of his person by either of his parent as or upto a particular age nor a dispute over his guardianship between his father and mother or his mother with-holding his custody against the willingness and readiness of his father to maintain him is to defeat his independent and absolute right of being maintained by his father. Incapable as he is to exercise free will and give free consent during the period of his minority (his will and consent may be taken into consideration to resolve the controversy over his guardianship and not to grant or refuse to grant maintenance to him under Section 125 Criminal Procedure Code the conduct of his mother of not allowing him to live with his father cannot be a good ground to reject his right to maintenance from his father. 2 In the above sense of the matter proof of negligence or refusal by the father of the minor to maintain him will have no bearing upon his right for maintenance under Section 125 Criminal Procedure Code. In this respect the right of a minor for maintenance shall have necessarily be considered at a footing different that of his mother. Whereas a wife may disentitle herself to maintenance if she without any lawful excuse refuses to live with her husband and, therefore, the husband cannot be held guilty of neglected or refusing to maintain the wife, a minor is legally incompetent to so refuse to join the company of his father. The act and conduct of his mother of refusing to live with her husband or not allowing the minor to go to his father cannot defeat minor’s right for maintenance from his father. 3

1 2 3

Wafatan (Smt.) vs. Jamil Ahmed, ibid. Wafatan (Smt.) vs. Jamil Ahmed, ibid. Wafatan (Smt.) vs. Jamil Ahmed, 1999(1) HLR 242 Rahasthan.

494

Law of Maintenance

Question of legal entitlement to the custody of the minor or right to his guardianship according to personal law can also not be considered in the limited scope of the summary proceedings contemplated under Section 125 Criminal Procedure Code. 1 The Lahore High Court 2, Madras High Court 3, Andhra Pradesh High Court 4, Orissa High Court 5, Hyderabad High Court 6, Bombay High Court 7, Nagpur High Court 8 and Rajasthan High Court 9 have expressed similar view on this point. There is no prohibition under the Muslim Personal and Muslim Women (Protection of Rights on divorce), Act, 1986 that children who are in the inherent on lawful custody of the divorced Muslim wife are not entitled to claim any maintenance from their father. The provisions of the Act, 1986 and the Muslim Personal Law were discussed in upholding the order of the Magistrate by which maintenance to two children out of which the daughter was about 12 years of age the son was about 10 years of age was granted. 10 However, the moving of the application for custody alone will not be a conclusive matter. It is only when the Court decided that the father is entitled to get the custody of the children then the wife would become disentitled to claim maintenance for her minor sons. 11

Right of divorced wife The earlier view was that the payment of Mehar does not absolve the husband from his liability to pay the maintenance. 12

1 2

3

4 5 6 7 8 9 10 11 12

Wafatan (Smt.) vs. Jamil Ahmed, ibid. Alla Rakhi vs. Karim Elahi, AIR 1933 Lah 969 and Akhtari Begum vs. Abdul Rashid, AIR 1937 Lah 236 Muniammal vs. Venkatraman Cheri, AIR 1943 Madras 768; Kuppkla Krishtapa vs. Preme Lilamani, AIR 1942 Madras 705 and Mohiuddin Bi vs. Bash Saheb, AIR 1937 Madras 809 Chamala Padamma vs. C. Narsi Reddy Sri Betela Barik vs. Padm in Rahimunnissa vs Mohd. Ismail Dinsab Karim Sab vs. Mohd. Hussain, AIR 1945 Bombay 390 State vs. Anwar Bi, AIR 1962 Pun 274 Mohd. Yusuf Khan vs. Mst. Zrina (Sayed) Mehrab Ali vs. Shahid Ali, II (1992) DMC 83 Raj. (Sayed) Mehrab Ali vs. Shahid Ali, ibid. Bai Tahira vs. Ali Hussain Fissalli Chothia, 1979 CrLJ 151: AIR 1979 SC 362: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC) 616 See also Mohd. Ahmed Khan vs. Shah Bano Begum, 1985

Muslim law—Scheme of Act of 1986

495

But after enactment of Act of 1986, Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of Criminal Procedure Code and it is only under Section 5 of the said Act that by agreement husband and divorced wife can approach Magistrate under Chapter IX, Cr.P.C. The entitle scheme of the said Act has been examined by the Full Bench for coming to the said conclusion. Therefore, from the date of talaq, the application for maintenance under Section 125, Cr.P.C. would not be maintainable. 1

Scheme of Act of 1986 Application for maintenance by a divorced Muslim woman must be initiated under Sub-section (2) of Section 3 of the Act of 1986 and the only choice should be exercised in the manner so that the proceedings should continue under Section 125 to 128 of the Criminal Procedure Code. In this view of the matter, so far as divorced Muslim woman is concerned, Section 125 of the Criminal Procedure Code would apply only if both parties exercise their option at the first hearing of the application under Sub-section (2) of Section 3 of the Act as contemplated under Section 5 of the Act and not in any other manner. Consequently the Magistrate cannot exercise his jurisdiction under Section 125, Criminal Procedure Code in case of divorced Muslim woman, unless an application is filed under Section 3(2) of the Muslim Women’s (Protection of Rights on Divorce) Act, 1986 and parties exercise their option as required under Section 5 of the said Act. 2 The properties referred to in Clauses (d) of Section 3(1) of the Act cannot be construed as properties in its widest sense, as the revision petitioner wants in this case. The words ‘property’ occurring in Clauses (d) of Section 3(1) should be considered in a strict and restricted sense than the wide amplitude given to the word in common parlance. If the word ‘property’ in Section 3(1)(d) of the Act is interpreted so widely as contended by the revision petitioner so as to embrace the vast properties or the entire properties acquired by the former husband in the name of his divorced wife during the subsistence of the marriage, it will jeopardise the very intendment of providing reasonable and fair provision by the former husband to his divorced wife. From the Quranic injunction and the provisions of Section 3(1) of the Act referred to above, it is patent that the idea behind the former husband providing reasonable and fair provision at the time of divorce to his divorced wife

1 2

CrLJ 875: AIR 1985 SC 945: 1985 CrLR (SC) 327: 1985 SCC (Cr) 245: 1985 CAR 161: 1985 Jab LJ 489. Wajed Khan vs. Mohasinabi, II (2001) DMC 116 Bombay. Riswana Begum vs. MLV. Motiullah, II (1989) DMC 138 Orissa.

496

Law of Maintenance

is to protect her from destitution and vagrancy due to the divorce. Therefore, by a reasonable, pragmatic and harmonious interpretation of the provisions of the Clauses (a) and (d) of Sub-section 3 of the Act, it is clear that Clauses (d) deals with the properties given by the former husband to the divorced wife during the subsistence of the marriage by way of gift or otherwise. But Clauses (d) of Sub-section (1) of Section 3 does take in the entire or the major portion of the property acquired by the husband during the subsistence of the marriage in the name of his wife due to his own reasons for such acquisition without the intention to give the property to the wife as her exclusive property. 1 The principles 2 after the enactment of Act of 1986 can culled as under: (i)

A divorced Muslim woman is entitled to and can claim maintenance only under the provision and in accordance with the procedure provided under Section 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act.

(ii)

She is entitled to claim maintenance from her former husband for and during the period of iddat and besides that she is also entitled to claim dower amount agreed at the time of marriage and other properties which were given to her by her relatives and friends at the time of marriage or thereafter.

(iii)

In case a divorced woman is not re-married and is not able to maintain herself after the expiry of iddat, she may bring an action claiming maintenance and she may be entitled to get maintenance in accordance with the procedure provided under Section 4 of the said Act.

(iv)

After the enactment of the aforesaid Act a divorced woman is not entitled to bring an action for the said remedy under Section 125 of the Code of Criminal Procedure.” 3

Plain reading of Section 3 of the Act of 1986 makes it clear that this section has overriding effect on other law including Section 125, Criminal Procedure Code. It has been provided under Section 7 of the Act that the pending applications filed under Section 125, Criminal Procedure Code on the commencement of the Act shall be governed by 1 2 3

Majitha Beevi vs. Yakoob, II (1999) DMC 699 Kerala. Bibi Shahnaz @ Munni vs. State of Bihar, 1999(1) HLR 137 Patna. Bibi Shahnaz @ Munni vs. State of Bihar, 1999(1) HLR 137 Patna.

Muslim law—Second marriage by husband

497

the provisions of the Act. The applications filed by the Muslim wives, of the Act under Section 125, Criminal Procedure Code the moment Talaq is pronounced and her status changes she becomes of divorced woman, the provisions of the Act would be applicable and the application would not be prosecutable under Section 125, Criminal Procedure Code unless both parties exercise their options under Section 5 of the Act and declare in writing that they would prefer to be governed by the provisions of Section 125 to 128 of the Criminal Procedure Code. 1 But a Muslim husband is liable to make reasonably and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2 And the liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 3

Second marriage by husband The Explanation to section 125 of Criminal Procedure Code, 1973 contemplates two kinds of matrimonial injury to a wife, viz., by the husband either marrying again or taking a mistress. The Explanation places a second wife and a mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial 1 2

3

Rafik Shah vs. Farida Bi, II (2000) DMC 115 MP. Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Danial Latifi vs. Union of India, ibid.

498

Law of Maintenance

life than the taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more tolerant and sympathetic than a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife in one and the same house. It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband’s right to marry again. The Explanation has, therefore, to be seen in its full perspective and not disjunctively Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. 1 The Legislature being anxious that for the sake of maintenance, the dependents should not resort to begging, stealing or cheating, etc., the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not. In the case of wives, whether their ties of marriage subsist or not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating, etc., but they should also not feel compelled, for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married. This position emerges when we take an overall view of sub-secs. (1), (4) and (5). While sub-s. (4) provides that a wife shall not be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or if she lives separately by mutual consent. sub-s. (5) provides that an order of maintenance already passed can be cancelled for any of the abovesaid reasons. Thus by reason of sub-ss. (4) and (5) a husband can avoid his liability to pay maintenance if his wife is living in adultery. Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a 1

Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale 672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr LJ 980

Muslim law—Second marriage by husband

499

mistress. As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, the respondent’s contention that his taking another wife will not entitle the appellant to claim separate residence and maintenance cannot be sustained. The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress. 1 The Explanation places a second wife and a mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying against or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. 2 However, can it be said that a second wife would be more tolerant and sympathetic than a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife in one and the same house. It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view 1

2

Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale 672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr LJ 980 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale 672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr LJ 980

500

Law of Maintenance

of the injury to the matrimonial rights of the wife and not with reference to the husband’s right to marry again. The Explanation has, therefore, to be seen in its full perspective and not disjunctively. Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. Approaching the matter from this angle, we need not resort to a comparison of Muslim wives with Hindu wives or Christian wives but can restrict the comparison to Muslim wives themselves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination. A right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, the respondent’s contention that his taking another wife will not entitle the appellant to claim separate residence and maintenance cannot be sustained. The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress. 1

Talaq without any cause The husband is permitted to give talaq to his wife with or without any cause. It is true that talaq is disapproved but it is not forbidden. The institution of a divorce may be disliked and detested it but legally divorce is provided or permitted in many of the Mohammedan laws. 2

Territorial jurisdiction To constitute “residence” it is not necessary that the divorced woman should have her own residence within the territorial limits of the Court. So long as there is animus manendi or an intention to stay for an indefinite period at a place, that place should be treated as the “residence”. In this case, according to the divorced woman, she has taken shelter under her maternal relatives at the Nadapuram and she intends to reside there permanently, unlike a casual stay or a flying visit or a mere casual residence with no intention of remaining there. In order to constitute “residence”, the intention of the person is of utmost importance. If the intention is to make the place that persons permanent abode or residence, then it will constitute “residence” as contemplated by the 1986 Act. The question as to whether the divorced woman has chosen

1 2

Begum Subanu ibid. Banu vs. Kutubuddin Sulemanji Vimanwala, 1995 (2) DMC 390 Bom.

Muslim law—Triple pronouncement of talaq

501

to make a particular place her abode is to be gathered from the circumstances of the case. 1

Triple pronouncement of talaq In one case it was the assertion of wife that on a particular day when talaq was given, she was in her menstruation. It was held that it cannot be accepted because she had stated it for the first time the first time in her evidence when her statement was recorded in 1988 about 5 years after the date of talaq. No such plea is taken in the plaint. This was a question of fact, which should have been pleaded and proved. Merely saying that the talaq is void is not sufficient. Question of fact namely, that the talaq was void on the ground that the wife was in her menses on the date of talaq should have been pleaded in the plaint which is not done. It was in evidence that the wife left the house of the husband on 6.11.1982. It was also admitted by the wife that ever since 6.11.1982 till she gave evidence in 1988, there was no cohabitation between her and her husband. They had not lived together after 6.11.1982 till the date of decision, talaq was given on 15.7.1984 which means there was a gap of about one year and eight months after the wife left the house and the date of talaq, when admittedly both parties were residing separately and at different places. In the very nature of things, the fact that wife is in her menstruation or not is within the special and personal knowledge of the wife herself. Nobody else can show whether the wife is in her menses unless she herself announces. When admittedly the husband is staying separately and away from wife for about one year and eight months, it can not be expected that the husband should know that on 15.7.1984, the wife was in menstruation or not. It is impossible for the husband to know that fact. It may be that in usual course in the talaqnama against the relevant column it is mentioned that the plaintiff was in purity. By any stretch of imagination it cannot be expected that a husband should know whether the wife was in menstruation or not particularly when she is staying away from him. Now, in such a situation, it can not be insisted that this condition say that the talaq is void on the ground that the husband has not proved that the wife was in her periods on the date of talaq. It is an impossible condition for the husband since the wife and wife alone can know whether she is in her menstruation period or not. That is why the Text on Muslim law have provided exception to this rule. It was held that even in the Compendium of Fatimid Law on which the wife heavily depended, there is a provision in paragraph 212 that a divorce can be given which takes effect immediately under five circumstances of which one is a woman whose husband has been absent 1

Avaran Koya vs. Mariyam, 1994 (1) DMC 205 (DB) Ker

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for a long time. Since there is a provision enabling the husband to give talaq whose wife is living separately for a long time, the inference is that court cannot insist this condition of the purity, on the date of talaq. 1

Validity of Act of 1986 A Muslim husband is liable to make reasonably and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2 Therefore on the basis of this interpretation it was held that the provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. 3

1

2

3

Banu vs. Kutubuddin Sulemanji Vimanwala, 1995 (2) DMC 390 Bom Danial Latifi vs. Union of India, Writ Petition (C) 868/1986 unreported D/-28-09-2001 by Supreme Court of India. Danial Latifi vs. Union of India, ibid.

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Chapter 12

Practice & Procedure SYNOPSIS Introduction....................................504 Abuse of process ............................504 Adjustment of orders ......................505 Agreement or compromise .............505 Alternate forums.............................506 Amendment of law ..........................511 Amendment of petition ...................512 Appeal ............................................513 Appeal under Hindu Marriage Act ..................................................514 Application of Civil Procedure Code ...............................................520 Appreciation of affidavits ...............520 Appreciation of evidence................521 Burden of proof ..............................521 Cancellation of order .....................522 Challenge to consent decree ..........522 Change in circumstances ...............522 Condonation of delay .....................523 Consent order.................................523 Counter claim.................................524 Creation of charge .........................524 Cross Examination .........................525 Date from which amount to be awarded .........................................525 Delay & laches...............................529 Determination of paternity .............530 Directions for blood test ................533 Dismissal in default........................537 Divorced wife .................................538 Double payment .............................538 Efforts for re-union ........................539 Enhancement ..................................539 Ex parte order ................................539

Exercise of writ jurisdiction .......... 542 Ex-parte order ............................... 543 Finding of civil court ..................... 543 Forum of Appeal ............................ 543 Hearing the parties ........................ 544 Ingredients of desertion ................. 545 Inherent powers ............................. 546 Jurisdiction of criminal Courts ..... 546 Legal Aid ....................................... 547 Lien on property ............................ 547 Limitation for minors..................... 547 Maintenance by agreement............ 548 Modification of order .................... 548 Necessary parties .......................... 550 Neglect & refusal........................... 550 Object of summary remedy ............ 551 Omission to reply the notice .......... 552 Pleading......................................... 553 Pleading and libel ......................... 554 Pleadings and proof ...................... 554 Precedent ....................................... 555 Presumption of litigation ............... 555 Presumption of marriage............... 555 Proof of marriage .......................... 556 Proof of no income ........................ 560 Proper witness ............................... 560 Quashing ....................................... 561 Relief in void marriage .................. 562 Remedy of suit ............................... 562 Resjudicata .................................... 563 Revision ......................................... 565 Revision & reconciliation .............. 566 Revisional jurisdiction ................... 567 Settlement ...................................... 568

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Successive petitions........................569 Territorial Jurisdiction ..................569

Transfer of proceedings................. 571 Verification of affidavit ................. 573

Introduction In addition to the substantive laws, the procedures devised to impart justice is also of much importance. The courts frequently make various interpretations in regard to different procedural laws and also adopts certain practices to ensure that the substantive justice is done to the parties. This chapter deals with such decisions of the courts which lay down the procedures in the matter of seeking the maintenance or defending the same.

Abuse of process A party may have various alternative remedies if they are pursued simultaneously but it cannot be said that by itself, the said action would amount to abuse of the process of the court. It is necessary to note at this stage that the scope of proceedings under Section 24 of the Hindu Marriage Act is entirely different from the scope of proceedings under Section 125 of the Code. Therefore it is not possible to agree with the broad submission of that once the wife had applied in the court for interim alimony under Section 24 of the said Act, she could not have filed proceedings under Section 125 of the Code. 1 In one case it was held that the petitioner/husband appeared to have utter disregard for the orders passed by the Court. It is also quite evident from the multiplicity of the proceedings to which he had resorted to, that by hook or crook, he wants to avoid making payment of maintenance to his wife and daughter. The Session Judge, in all his three judgements, had given a graphic account of all the events and had narrated the chronology of event so also, the abuse of the process of law, to which the petitioner has resorted to. It was found that the prayer made by the petitioner in the criminal application for custody of his daughter, was never made in the lower Court. This prayer was made for the first time in the High Court. Considering the callous nature of the petitioner, his utter disregard to comply with the orders passed by the Courts, his hide and seek with the orders, his reluctance to comply with them, it was held that the possibility cannot be ruled out that this prayer has come for the first time, only to avoid the payment of maintenance to the daughter. It was also held that it did not appear to have been made because of any 1

Ramesh Chandra Shambubhai Yadav vs. Dhiraj Gavri, I (1983) DMC 10 Delhi; Sudershan Kumar vs. Deepak @ Reena Khurana, I (1983) DMC 337 P&H.

Practice & Procedure—Agreement or compromise

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fatherly love for the child. In these circumstances the Writ Petition alongwith Criminal Application were both dismissed the cost of Rs. 10,000/- (Rupees ten thousand). The cost was directed to be paid by the petitioner to his wife and daughter, within two months from today. The husband/father was also directed to pay the entire permissible amount of arrears of maintenance within two months from today and thereafter, to pay the maintenance amount regularly to his wife and daughter. 1

Adjustment of orders The amount of maintenance payable by the husband under Section 125 Cr.P.C. is always subject to adjustment in the amount of maintenance awarded by the Civil Court either finally or by way of maintenance pendente lite and therefore, it was directed that the amount of Rs. 300/- per month which the applicant/husband was paying to the wife under the orders of the Criminal Court shall be adjusted in the maintenance awarded to the wife by the Civil Court in the proceedings under Section 24 C.P.C. 2

Agreement or compromise When the statutory obligation is husband/father to maintain his wife and minor son who are unable to maintain themselves he cannot be permitted to contract out of such an obligation. If he is allowed to do so, it would certainly defeat a legal right recognized by the Court under Section 125 of the Criminal Procedure Code. The agreement propounded by him cannot annihilate the statutory right of claiming maintenance under Section 125 Criminal Procedure Code. The agreement is certainly opposed to public policy. Obviously the Court cannot enforce in illegal agreement. A waiver in derogation of a statutory right cannot be recognized by the Court as it affects Public Policy and as it is against the very statutory obligation imposed on a husband to maintain his wife and children who are unable to maintain themselves. 3 An order for maintenance made against a person would operate until it is vacated or altered in terms of the provisions of the Code itself. Section 125(4) provides that no wife shall be entitled to receive an allowance from her husband under the 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. Sub-section (5) enables 1

2 3

Ansari Mohd. Riyaz Abdul Latif vs. State of Maharashtra, I (2000) DMC 671 Bombay. Rangnath vs. Indira, I (1996) DMC 462 Bombay. Haroon vs. Sainabha, II (1992) DMC 293 Ker.

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the Magistrate to cancel the order of maintenance on proof that any wife in whose favour an order has been made is living in adultery or that without sufficient reason she refuses to live with her husband. Section 127 provides for certain contingencies whereby the Court can cancel the order of maintenance. As the original order of maintenance has not been modified or cancelled by a higher Court or is varied or vacated in terms of Section 125 (4) or (5) of Section 127, its validity cannot be questioned on the strength of the agreement; entered into between the petitioner and the first respondent. 1

Alternate forums Merely because of the order of maintenance granted by the Magistrate in favour of the second defendant, plaintiff’s suit for declaration cannot be dismissed. The order passed in the application filed under Section 125 Criminal Procedure Code is really a summary order which does not finally determine the rights of the parties as the order was made in a proceedings under the Code of Criminal Procedure which has been enacted to provide a summary remedy for providing maintenance and for preventing vagrancy. The decision of the Criminal Court granting maintenance or refusing to grant maintenance cannot certainly operate as decisive in any civil proceeding between the parties for determining the issues involved in the civil suit. In such a position the civil Court has to decide it on the evidence before it uninfluenced by the decision in the maintenance case. 2 As the proceedings under Section 125 Criminal Procedure Code are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner the decision of the Magistrate cannot be considered as the sole basis to the throw out a properly instituted civil suit by the aggrieved party to the maintenance application. 3 The scope of Section 125, Criminal Procedure Code as well as Section 24 of the Hindu Marriage Act stand on different footing. It is true that the maintenance granted under the Hindu Marriage Act can be adjusted out of the amount granted under Section 125, Criminal Procedure Code. When the wife is granted interim alimony both under Section 24 of the Hindu Marriage Act and under Section 125, Criminal Procedure Code, in that event, the maintenance amount granted under Section 125, Criminal Procedure Code is to be adjusted again the amount 1 2 3

Haroon vs. Sainabha, II (1992) DMC 293 Ker. Sivanandan vs. Thankamma, I (1995) DMC 625 Kerala. Sivanandan vs. Thankamma, ibid.

Practice & Procedure—Alternate forums

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awarded in matrimonial proceeding. It was found that not a single farthing had been paid to the petitioner in terms of the decree passed by the Civil Court. In that view of the matter it was held that a wife though divorced one, is still entitled to the maintenance in terms of Section 125, Criminal Procedure Code. 1 The husband was directed to pay, under Section 125 of the Code of Criminal Procedure, maintenance to the wife and the child of the marriage in the sums of Rs. 300/- and Rs. 400/- respectively. Thereafter, by the order, the Civil Court directed the husband to pay maintenance, under Section 24 of the Hindu Marriage Act, in the sums of Rs. 1,000/and Rs. 800/- respectively. Therefore, the order of the High Court was modified to the extent that the husband will only be liable to pay maintenance to the wife and the child in the sums of Rs. 1,000/- and Rs. 800/- respectively. 2 When by the Court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remain within the jurisdiction of that Court, to be altered or modified is future situations may warrant. In contract without affection or disruption of the marital status, a Hindu wife sustaining that she can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions & Maintenance Act. The Court in not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. Both the statutes are codified as such and are clear on their subjects and by liberality on interpretation interchange ability cannot be permitted so as to destroy the distinction on the subject of maintenance. 3 These two enactments keeping apart, the remaining two i.e., Hindu Succession Act, 1956 and Hindu Minority & Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the Court conceived of there under, it is difficult to sustain the plea that when a claim is otherwise

1 2 3

Sandya Kumari vs. State of Bihar, I (2001) DMC 6 Pantna . Sanjay Chopra vs. Shyama Chopra, I (2001) DMC 510 SC. Chand Dhawan vs. Jawaharlal Dhawan, II (1993) DMC 110 SC.

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valid, choosing of one Forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial Court, a Court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the Matrimonial Court does make an appealable decree in term of Section 28, but neither disrupts the marriages. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a Surgeon, the Matrimonial Court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician. 1 Even pending the application made by the husband under Order 9, Rule 4 of the Code of Civil Procedure, the wife can initiate proceedings under Section 24 of the Hindu Marriage Act. It should be borne in mind that, in general the husbands is bound to defray the wife’s costs of the proceedings under the Act and to provide her with the maintenance and support pending disposal of the proceeding. Having regard to the object that is sought to be achieved by making provision for awarding maintenance pendente lite and for making provisions for payment of expenses of proceedings, the expression “proceeding under the Act:” appearing in Section 24 cannot be given a narrow and restrictive meaning. 2 In the case of Ramesh Dev Anand v. Smt. Devinder Kaur, reported in 3 it has been clearly held as under: “In the view that proceedings under Order 9, Rule 9 of the Code for restoration are proceedings under the Act, it can safely he held that proceedings for setting aside the exparte decree are also proceedings under the Act”. A reference may also usefully be made in this behalf to the provisions of Section 21 of the Hindu Marriage Act which states the subject to other provisions contained in this Act, and to such rules as the High Court may make in this behalf all proceedings under this Act, shall 1 2

3

Chand Dhawan vs. Jawaharlal Dhawan, II (1993) DMC 110 SC. Vinod Kumar Kehriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32 Bom: 1992 (2) Bom CR 648: 1993 (1) Civ LJ 854: 1993 (1) Cur CC 69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bom 160. AIR 1985 Delhi 40.

Practice & Procedure—Alternate forums

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be regulated, as far as may be by the Code of Civil Procedure, 1908. The Punjab and Haryana High Court had also an occasion to consider a somewhat similar question 1 Though the question which directly arose there was one of granting relief to the wife under Section 24 pending an application under Order 9, Rule 13 for setting to aside the exparte decree, referring to the object and the rationale of the provisions of Section 24 of the Act, it was held that to obviate against the financial handicap of a party to the litigation, the provisions of Section 24 of the Act can be invoked even during the pendency of the application under Order 9, Rule 13 of the Code of Civil Procedure. Thus having regard to the object of Section 24 of the Hindu Marriage Act, and having regards to the ratio of the other cases 2 it was held that the provisions of Section 24 can be invoked by the spouse even during the pendency of an application under Order 9, Rule 4 of the Code of Civil Procedure. In the facts of this case, therefore, the wife is entitled to initiate proceedings under Section 24 of the Act even during the pendency of the husband’s application for restoration of his petition which was dismissed. 3 There is no provision in the Hindu Adoptions and Maintenance Act for granting maintenance pendente lite and expenses of proceedings as provided for in Section 24 of the Hindu Marriage Act, 1955. Hence, It was held that there is nothing in the scheme of the provisions of Section 24 of the Hindu Marriage Act which is inconsistent with the provisions of the Hindu Adoptions & Maintenance Act so as to attract the bar of Clauses (b) of Section 4 of the Hindu Adoptions & Maintenance Act. Undoubtedly, if there were to be any other law in force immediately before the commencement of the Hindu Adoptions & Maintenance Act, 1956, it would cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Hindu Adoption and Maintenance Act. However, it was held that there was no inconsistency between the provisions of Section 24 of the Hindu Marriage Act and the provision of Section 18 of the Hindu Adoptions & Maintenance Act,

1 2

3

Madan Lal vs. Meena, AIR 1988 P&H 31. viz., the decision of the Court reported in DMC page 74, AIR 1985 Delhi 40, and AIR 1988 P&H 31 ibid Vinod Kumar Kejriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32 Bom: 1992 (2) Bom CR 648: 1993 (1) Civ LJ 854: 1993 (1) Cur CC 69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bom 160.

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therefore, the argument based on the provisions of Clause (b) of Section 4 of the Hindu Adoptions & Maintenance Act has no force. 1 It was held that court below rightly held that having regard to the wild and baseless allegations made by the husband in his Petition for divorce filed in the Court, the wife could be justified in entertaining an apprehension, that it would be dangerous for her live with the husband. The court also relied upon the decision of the Division Bench. 2 It was also held that, in view of the decision of the Court in Smt. Gangu Pundlik Waghmare vs. Pundlik Maroti Waghmare, 3 it would not be permissible to refuse to award maintenance pendente lite and the expenses of the proceedings to the wife merely because there are wild and baseless allegations made by the husband against the wife. It was more so when the husband did not even want to prosecute his Petition for divorce, meaning thereby that he did not even want to justify or prove the allegation made by him in the Petition for divorce. 4 A party may have various alternative remedies if they are pursued simultaneously but it cannot be said that by itself, the said action would amount to abuse of the process of the court. It is necessary to note at this stage that the scope of proceedings under Section 24 of the Hindu Marriage Act is entirely different from the scope of proceedings under Section 125 of the Code. In the proceedings under the said Act, either spouse has a right to apply to the matrimonial court; while under Section 125 of the Code, only wife or concerned destitute parents or legitimate or illegitimate minor child whether married or not and unable to maintain itself, through his or her guardian can apply for maintenance. The nature of the respective cases which are required to be pleaded and proved in both these proceedings would also differ. Under Section 24 of the Hindu Marriage Act, the concerned spouse has only to show that he or she has no independent source of income sufficient for his or her maintenance. Once this is established, interim alimony amount has to follow, keeping in mind the economic condition of respective spouses. While in Section 125 proceeding under the Code, only because the wife alleges that she has no independent source of income, her application cannot be automatically granted. She has to further prove that her husband having sufficient means has neglected or refused to maintain her. Order of 1

2 3 4

Vinod Kumar Kejriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32 Bom: 1992 (2) Bom CR 648: 1993 (1) Civ LJ 854: 1993 (1) Cur CC 69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bom 160. A vs. B, 80 Bom LR 384 AIR 1979 Bombay 264. Vinod Kumar Kejriwal vs. Usha Vinod Kejriwal, ibid.

Practice & Procedure—Amendment of law

511

interim alimony under Section 24 of the Hindu Marriage Act is an interim order during the pendency of main proceedings while order under Section 125 of the Code is a final order. Under these circumstances, it is not possible to agree with the broad submission of that once the wife had applied in the court for interim alimony under Section 24 of the said Act, she could not have filed proceedings under Section 125 of the Code. 1 There can be absolutely no justification whatever for declining to countenance the claim of the petitioner for maintenance on the ground of the prior proceedings under Section 125, Cr.P.C. It may also be pointed out that in proceedings under Section 125, Cr.P.C. the power of the Magistrate is limited to an award of monthly maintenance not exceeding Rs. 500/- in the whole, and under Section 127 (2) and (4) Cr.P.C. provision is made for the cancellation or variation of the magisterial order, as a consequence of a decision of a competent civil Court and for the civil Court to take into account the amount paid to recovered by a person, pursuant to an order under Section 125 Cr.P.C. The aforesaid provisions do not in any manner impinge upon the specific statutory right conferred under Section 24 of the Hindu Marriage Act, upon the parties to a proceeding under the provisions of that Act. It would, therefore, follow that the prior proceedings under Section 125, Cr.P.C., cannot be put against the petitioner, as a ground for declining to entertain her claim, for maintenance in enforcement of her statutory right under Section 24 of the Hindu Marriage Act. 2

Amendment of law In the State of M.P. the provision of section 125 of Criminal Procedure Code, 1973 was amended and the question whether the benefit of amendment should be given to the pending applications, it was answered in affirmative. If the new law speaks a language which expressly or by clear intendment, takes in even pending matters the Court of trial as well as the Court of Appeal must have regard to an intention so expressed and the Court of Appeal may give effect to such a law even after the judgment of first instance. The distinction between laws affecting procedure and those affecting vested right does not matter when the Court is invited by law to take away from a successful plaintiff, what he obtained under a judgment. In this case both the Court below after the

1

2

Ramesh Chandra Shambubhai Yadav vs. Dhiraj Gavri, I (1983) DMC 10 Delhi; Sudershan Kumar vs. Deepak @ Reena Khurana, I (1983) DMC 337 P&H. Vanaja vs. Gopu, I (1992) DMC 347 Mad.

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amendment gave the effect and directed to pay the amount of Rs. 1,000/as a maintenance. 1 In the light of the Statement of Object and Reasons the amendment should be applicable on the pending proceedings and in the case where the orders are passed after 30 th May, 1998 the Magistrate has powers to enhance the amount of maintenance from Rs. 500/- upto Rs. 3,000/-. The language used in the Statement of Object and Reasons clearly intends that this amendments is applicable on the pending proceedings. The reason, since the existing amount of maintenance allowance has become insufficient in the present day circumstances and the amendment further says that in view of the above it has been decided to amend Section 125 of the Code of Criminal Procedure, 1973. Therefore, from the plain reading of Statement of Object and Reasons it is clear that intention of the legislature is to consider the present day circumstances in which the amount of maintenance allowance of Rs. 500/- has become insufficient and to prove benefit to the destitutes and when the Legislature wants to take into consideration the present day circumstances, it would clearly mean that the amendment shall be applicable though prospectively with effect from 30 th May, 1998 when it was first published in the Madhya Pradesh Gazette (Extraordinary) but would amount to be applicable on the present day pending proceedings. The intention of the Madhya Pradesh Legislature is very clear to provide benefit to the members of the weaker section of the society like wife, children or the old parents who are not having any source of income and are unable to maintain themselves. Having regard to this social object the amended provisions have to be given a liberal construction to fulfil and achieve this intention of the Legislature, because dominant purpose behind the benevolent provisions is that the wife, child and parents should not be left in helpless state of distress, destination and starvation. Therefore, looking to the intention spelt out by the Statement of Object and Reasons, this Court is of the view that the amendment is applicable to the pending proceedings and the Magistrate have power to enhance the amount of maintenance in the cases in which the orders are passed after 30 th May, 1998. 2

Amendment of petition The provisions of Section 125 to 128 of the Code of Criminal Procedure constitute complete Code in itself. These provisions deal with adjudication as regards the liability to pay maintenance to the neglected wife and child, etc., the execution of the order and the mode of its 1 2

Ramfool vs. Jagarati, I (2001) DMC 125 MP. Ramfool vs. Jagarati, ibid.

Practice & Procedure—Appeal

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execution. Ordinarily, the right to claim maintenance under Section 125, Criminal Procedure Code of the Code fructifies on the date of the filing of the petition as the scheme of the provisions embodied in the said section is only intended for the enforcement of a duty a default in which may lead to vagrancy. It is not always that the Court has to grant maintenance from the date under Sub-section (2) to Section 125 of the Code, the Court has discretion in the matter as to from which date maintenance under Section 125 of the Code should be granted. The Court can award maintenance under Section 125 of the Code either from the date of application of from the date of order taking into consideration conduct of the parties in the proceedings, averments made in the application and the reply thereto, hardship that may be caused to husband and the like. 1 In this case, the learned Magistrate exercised the discretion under Sub-section (2) of Section 125 of the Code by awarding maintenance to the petitioners from the date of the petition. However the learned Additional Session Judge modified the order of the learned Magistrate by directing payment of maintenance from the date when the amended petition under Section 125 of the Code was brought on record. It was held that ‘It appears that the petition under Section 125 of the Code was allowed to be amended into one based on the original cause of action. That being so, the amendment would relate back to the date of the presentation of the original petition. The fact that the petition was amended by the petitioner cannot be a ground for rejecting the claim of maintenance from the date of the petition.’ 2

Appeal A bare reading of sub-Section (1) of Section 19 of the Family Court Act, 1984 shows that no appeal lies against an interlocutory order passed by a Family Court. Therefore when the interim order had been passed for monthly maintenance till the final decision of the appeal, the appeal was therefore, held to be liable to be dismissed on this ground itself. 3 Section 19 of the Family Courts Act has undergone change by virtue of the Family Courts (Amendment) Act, 1991 (Central Act No. 59 of 1991) and the said amendment has come into force on 28.12.1991. But the said amendment does not in any way alter the sub-Section (1) of Section 19 of the said Act. The said sub-Section (1) while providing that 1 2 3

Sneh Lata vs. Ajay Kumar Khanna, II (1999) DMC 451 Delhi. Sneh Lata vs. Ajay Kumar Khanna, ibid. Madulal vs. Sarojini Devi, II (1992) DMC 400 Raj.

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an appeal shall lie from every judgment or order of a Family Court to High Court says that such an appeal does not lie if the order in question is an interlocutory order. The order directing the husband to pay Rs. 500/- per month to the respondent wife as interim maintenance pendente lite under the abovesaid Section 24 of the Hindu Marriage Act is certainly and interlocutory order so an appeal under Section 19(1) will not lie against the said order. 1 There is also no other provision under the Family Court Act providing for a revision against such interim orders. In fact the old Section 19(4) which is same as the present Section 19(5) after the above said amendment, provides that, except as aforesaid no appeal or revision shall lie to any Court from any judgment, order or decree of Family Court. So even Section 115 Criminal Procedure Code will not apply. Hence a revision will not lie (though before coming into force of the Family Courts Act, a revision may lie) after the amendment of Section 28 of the Hindu Marriage Act of 1976. 2

Appeal under Hindu Marriage Act The Hindu Marriage Act is a self-contained enactment introducing many changes with regard to the rights and liabilities of marriage made according to Hindu Law. It is unthinkable that in such a self-contained Act, whereas rights are conferred under the Act, the remedies should be left to be searched in some other law. 3 The word “under any law for the time being in force” occurring the section, indicate that the right of appeal in dependent on some other law and that the section, itself, does not confer any such right does not appear to be sound. The words, referred to, only mean, that the forum for, and the procedure for the disposal of, appeals, filed under the Act will be determined, under the law, for the time being in force, on the subject. In the case of Himachal Pradesh, these laws will be the Himachal Pradesh (Courts) order, 1948 and the Code of Civil Procedure. 4 The question, whether an order, passed, under Section 24 of the Act, is appealable, was discussed, in detail in Smt. Sobhana Sen v. Amar Kanta Sen, 5 and it was held that such an order is appealable. The same view was taken in Rukhmanibhai v. Kishanlal Ramlal, 6 was followed in 1 2 3 4 5 6

N. Balasubramanian vs. V. Chitra, II (1992) DMC 423 Mad. N. Balasubramanian vs. V. Chitra, ibid. Suresh Prasad vs. Manorama Debi, AIR 1973 Patna 321 (DB). Shushila Devi vs. Dhani Ram, AIR 1965 HP 12. AIR 1959 Cal 455. AIR 1959 MP 187: AIR 1959 Cal 455.

Practice & Procedure—Appeal under Hindu Marriage Act

515

Harilal Purshottam v. Lilavati Gokaldas, 1 Dr. Tarlochan Singh v. Smt. Mohinder Kaur, 2 Sunder Singh v. Smt. Manna Sunder Singh, 3 D.S. Seshadri v. Jayalakshmi, 4 and Smt. Snehalata Dansena v. Jagdish Dansana. 5 A contrary view that an appeal against an order, passed under Section 24 of the Act, does not lie, was taken Prithyirajsinghji Mansinghji v. Bai Shivprabhakumari, 6 Saraswathi v. Krishna Murthy, 7 and Gopendra Nath v. Smt. Prative Rani. 8 The preponderance of judicial opinion is in favour of the view that an appeal lies, against an order, passed under Section 24 of the Act. 9 It is but fundamental that when two interpretations are possible that which better effectuates the intention of the Legislature would be adopted. The question is whether the clause “may be appealed from under any law for the time being in force” should mean in the context that the appeals may be preferred and prosecuted in accordance with the relevant provisions of law for the time being in force. That turns on the intention of the Legislature as apparent from the Statute. We have already stated that the Statute is the will of the legislature which is to be expounded according to its intent. We have earlier pointed out that at the time of drafting Section 28 the language of Section 55 of the Indian Divorce Act was before the draftsman or Legislature as a model. The meaning of that language was well established by judicial interpretation which was uniform. It must necessarily follow that the Legislature intended to give the same meaning to the expression deliberately employed in the Act. The clause “May he appealed from under any law for the time being in force” must have been intended to mean that the right of appeal conferred by the provision has to be enforced in accordance with the law regulating procedure, forum and other allied matters. The intention of the Legislature to confer substantive right of appeal under this section itself is even otherwise obvious from the state. The avowed purpose of Section 28 from its very heading was to provide for the enforcement of the orders and decrees passed and also give a right of appeal. Most of the remedies provided under this Act by way of making application were unknown to Hindu Law before the advent of the 1 2 3 4 5 6 7 8 9

AIR 1961 Guj 202. AIR 1961 Punj 508. AIR 1962 Punj 127. AIR 1963 Mad 283. AIR 1964 Orissa 122. AIR 1960 Bom 315. AIR 1960 AP 30. AIR 1962 Cal 455. Shushila Devi vs. Dhani Ram, AIR 1965 HP 12.

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Act. Judicial separation and divorce were not available to married persons under the Hindu Law before. As these proceeding culminating in decrees or orders new and a creature of special enactment, the provisions of C.P.C. were in terms incorporated so far as they were not inconsistent with the provisions of the Act, to regulate the procedure Section 21 enacted in this behalf was confined to the proceedings under the Act which resulted in orders and decrees. Which are the decrees and which are the orders have been specified by the Act in its various provisions and they alone by introduction of a statutory fiction in Section 28 were treated for a limited purpose to be decrees and orders made in exercise of original civil jurisdiction. It is obvious that but for this provisions those specified decrees and orders could not have been treated as such for they may not come within the meaning of Section 2(2) and (14) of C.P.C. nor could they be enforced, or executed in accordance with the provisions of the Code of Civil Procedure. This provision became necessary as the Act itself did not make any rules for their enforcement. The power so conferred was further regulated by the clear provision of the Act and could not go beyond. It was confined to execution of the decrees and orders. The provisions of appeals against decrees and orders as embodied in the C.P.C. could not be attracted unless such powers are specifically conferred. They being procedural must depend besides upon the conferment of the substantive right by the Act itself. That is why the second part of the provision has been enacted. That embodied in itself the rights of appeal and the manner in which it is to be enforced. In that way alone the scheme can be said to be complete. The alleged dubious meaning of the words employed has given room for doubt. Once it is obvious that Act XXV of 1955 is a self-contained special enactment conferring new rights and prescribing remedies hitherto unknown to Hindu Law, it is meaningless to expect that right of appeal in relation to orders passed under the Act would be available in any other law. The clause “may be appealed from under any provision of law for the time being in force” would therefore be meaningless if it be construed to mean that the right of appeal has been made to depends upon the existence of any provision in that behalf in any law unless we say that any law would also mean the Act itself. It is further significant that the provision says “All decrees and orders may be appealed from”. There is no law for the time being in force which contains provisions of right of appeal against all specified order in the Act. Even C.P.C. the provisions of which are attracted by reason of fiction introduced in relation to decrees and orders for purpose of enforcement and execution does not

Practice & Procedure—Appeal under Hindu Marriage Act

517

contain any provisions with regard to appeals against the orders made under the Act. 1 It is idle to think that C.P.C. could have anticipated the advent of the Act and made provisions therefore in its Section 104 or Order 43. If we interpret the fiction introduced by Section 28 to mean also that it is available for determining the right of appeal under C.P.C. or any other law then the expression “all orders” deliberately employed by the Legislature becomes meaningless for C.P.C. made no provision therefore, no any other law or rules having the force of law have provided for the same. The apart, when the right of appeal is not a mere matter of procedure but a substantive right and has to be conferred by the Statute, it is only natural and reasonable to expect the conferment of right by the Act itself. It is unreasonable to think that the Legislature which contemplated the idea of appeals against all decrees and orders having regard to their particular importance had left the matter vague or made it depend on the remote possibility of existence of such right in any law which could not even anticipate the advent of this Act or the hitherto unknown rights and remedies provided therein. It is thus manifest that if the clause “may be appealed from under any law for the time being in force” be interpreted to mean that the appealability depended upon the right to be found in any other law for the time being in force, that must necessarily lead to absurdity, inconsistency and repugnancy. It is absurd and meaningless because it is vain to expect that a right of appeal for orders passed under the specific provisions of any Special Act would be found in the previous laws especially when the orders of the kind could have no parallel in any previous law. It is repugnant and inconsistent with the Act because whereas the Act provides for the appealability of all orders, no known law including the Civil Procedure Code provides for the appealability of the orders under the Act. The legislature had definitely in mind that all orders are appealable except on subject of costs. It cannot be said that this provision was made in vain. It becomes otiose and would be rendered meaningless if the different interpretation is put on the clause. 2 The language of Section 28, also makes it clear that decrees under the Hindu Marriage Act are not decrees under the Code of Civil Procedure, for it is stated therein that decrees under the Hindu Marriage Act shall be enforced in like manner as decrees of a Court on its original civil jurisdiction. The necessarily implies that though the decrees under 1

2

Kode Kutumba Rao vs. Kode Sesharatnamamba, AIR 1967 AP 323 (FB): (1967) 2 Addh WR 296: (1967) 2 Andh LR 245. Kode Kutumba Rao ibid.

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Law of Maintenance

the Act are by statutory fiction treated for the purpose of enforcement as decrees under the Code, they in fact are not such decrees. It was also not the intention of the Legislature while giving a right of appeal under Section 28 of the Hindu Marriage Act, to make that right indefinite and more or less illusory by providing that the appeal under that section would be competent only if a provision for that purpose exists in some other law in force for the time being and not otherwise. Section 28 should be regarded as self-contained so far as appeals against decrees and orders under the different provisions of the Hindu Marriage Act are concerned and for this purpose it should not be necessary to look to other laws. The words in Section 28 “and may be appealed from under any law for the time being in force”, as I read that section, have reference only to forum of appeal and the procedure to govern such appeals. 1 The provision in Section 21 which regulates the proceeding under the Act is not material for deciding the question whether Section 28 itself gives a right of appeal or not. It also appears to us that the legislature having given a right of appeal in Section 28 it also provided in the latter part of that section for the procedure for filing the appeal and the forum for the appeal as also the jurisdiction and power of the Court in dealing with the appeal filed, by enacting the latter part of Section 28 using the words “under any law for the time being in force”. The forum for the appeal would be governed by the Bombay Civil Court Act and if that law had to be brought into picture it could only be done by making a general provision that the appeal would be under any law for the time being in force and the procedure would also then be governed by the Code of Civil Procedure. 2 Where a right of appeal is given by one law but the other matters regarding the forum and the procedure or the nature and the extent of the powers of the Court are to be determined with reference to the relevant law for the time being in force, the appeal does not cease to be one under the latter law because the appeal is still governed by that law. 3 All decrees and orders passed in a proceeding under the Hindu Marriage Act are appealable by virtue of the provisions of Section 28 itself. The words “may be appealed from under any law for the time being in force” have to be understood as meaning that although the right 1

2

3

P.C. Jairath vs. Amrit Jairath, AIR 1967 Pun 148 (DB): ILR (1967) 1 Pun 695. Madhukar Trimbakrao Ghisad vs. Malti Madhuka Ghisad, AIR 1973 Bombay 141 (DB): 1973 Mah LJ 204: 75 Bom LR 311: ILR (1973) Bombay 1003. Gangadhar Rakhamaji vs. Manjulal Gangadhar, AIR 1960 Bom 42

Practice & Procedure—Appeal under Hindu Marriage Act

519

of appeal is derived from this section itself, so far as the procedural aspect of the appeal is concerned, it will be governed by the Code of Civil Procedure, 1908 and the Rules prescribed for matters relating to the Act by the respective High Court in this case the Civil Court Rules of the High Court of Judicature. 1 As to decrees there is no difficulty as decrees are appealable under the Civil Procedure Code. The difficulty arises in the case of orders made under the Act under Section 24, 25 and 26. Section 24 provide the grant of maintenance pendente lite and expenses of proceedings Section 25 for grant of permanent alimony and maintenance and Section 26 for the custody of children. The Legislature intended that order under these sections should be appealable although the language of the section is undoubtedly not happy. 2 The provisions of S.3(b) of the Act does not define ‘District Judge’ but a ‘district court’ and merely because the Civil Judge, Dehra Dun becomes a ‘district court’ for purpose of the Act, does not mean that he becomes a District Judge in the sense in which that word is used in the Bengal, Agra and Assam Civil Courts Act. By virtue of the special provisions of S.3(b) of the Act, the functions of a “district court” under the Act may be performed by the District Judge as also by the Civil Judge but that would not equate the two and two expressions would not become synonyms. The district of Dehra Dun is a part of the judgeship of Saharanpur and there is one common District Judge for both the districts who sits of Saharanpur. Instances of Civil Judges and District Judges exercising the same jurisdiction are well known in several matters. As for example, insolvency proceedings. Normally a District Judge is the Insolvency Judge but powers can be conferred on the Civil Judge also in that case an appeal would lie to the District Judge. In the Companies Act, liquidation proceedings can be taken both before the High Court as also before the District Judge under certain circumstances but so far no one has contended, and no one can reasonably contend, that the Civil Judge, while exercising the functions of an Insolvency Judge, becomes District Judge and the District Judge, while performing the functions of the Company Judge become a High Court. 3

1 2 3

Suresh Prasad vs. Manorama Debi, AIR 1973 Patna 321 (DB). Govind Ram vs. Lila Devi, AIR 1969 Raj 253. Major Dal Chand Singh Pratap vs. Swaran Pratap, AIR 1965 All 46 (DB): 1964 All LJ 186: ILR (1964) 1 All 676.

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Law of Maintenance

Application of Civil Procedure Code In Chander Prakash v. Sudesh Kumari, 1 it was held that a decree for divorce granted by District Court when found erroneous on appeal can be substituted into one for judicial separation under Order 7, C.P.C. In Tirukappa vs. Kamalamma 2, the Division Bench of Mysore High Court held that provision of Order 9, Rules 8 and 9 are applicable to proceedings under Hindu Marriage Act. So also Order 22, C.P.C. was made applicable to a situation where a party to a proceeding under the Hindu Marriage Act dies. 3 In Krishna Udayan vs. Chhina Pillai, 4 it was held that said provision of C.P.C. was applicable to ex parte proceedings under Land Acquisition Act. Similarly, in Veeramchineni Seethiah vs. Bode Venkatasubbaih, 5 it was held that said provision were applicable to ex parte orders passed under the Company Act. If there are large number of decision holding number of provision of C.P.C. applicable to proceedings under the Hindu Marriage Act, there is no reason why provisions of Order 9, Rule 13 be not made applicable. Section 21 of the Hindu Marriage Act does not stand in the way. Secondly, Order 9, Rule 13 incorporates sound principle of the effective right of being heard and provides an immediate remedy in the trial court itself to put the defendant in a position in which he would he would have been if no ex parte decree was passed against him. The aggrieved defendant should not be driven to the appellate forum when the matter can be set right in the first court itself. This avoids multiplicity of proceedings and expenses. It is for this reason that Order 9, Rule 13 has been made applicable in case of other special Acts. 6

Appreciation of affidavits If the question had to be decided on the basis of the affidavits, the court was bound to consider the question as to whose version was more acceptable. The court cannot, with folded hands as it were, adopt, an attitude of utter helplessness in such situation. If this attitude is adopted, the court will not be in a position to grant alimony or expenses in many such proceedings. That is farthest from the intention of the Parliament. There are very many matters, including matters of great 1 2 3 4 5 6

AIR 1971 Delhi 208. AIR 1966 Mysore 1 S.M. Pande vs. Monohar, AIR 1971 Bombay 183. AIR 1948 Madras at page 416, 417 and 418. AIR 1949 Madras 675 at Page 681. Jang Bahadur Syal vs. Mukta Syal, I (1986) DMC 114 Delhi.

Practice & Procedure—Burden of proof

521

moment like writ petitions under Article 32 and 226, which are decided on the basis of affidavit evidence. Parties to the proceedings necessarily get relief, it circumstances justify it. The mere fact that one party has chosen to contradict the averments in the affidavits of the other party does not absolve the court from its solemn duty to weight the respective contentions and come to a proper decision. 1

Appreciation of evidence In revision evidence cannot be reassessed. But if in assessment of evidence a legal mistake has been committed by the Trial Court, the same can be corrected in revision. Cardinal principal is that in matrimonial or maintenance cases solitary evidence of a spouses attributing unchastity or adultery to the other party, should not be relied upon because such spouse is extremely interested in the case. 2

Burden of proof The person who seeks a remedy in a Court of law in bound to prove the allegations and the burden of proof never shifts on the other person. Until the initial burden cast on the person is discharged. 3 The degree of proof in a maintenance proceeding cannot be that of strict liability. It was held that the very fact that the petitioner husband was residing at Surat and when the respondent wife has been to him after the child was born and the fact that the petitioner suspecting her fidelity had brought her to her parents along with the child and left her and thereby neglected and refused to maintain is enough to entitle the respondent wife for maintenance. 4 In case where the party alleges a particular document to have been obtained by fraud or coercion, the primary burden would be on the said party to show by adducing such evidence that circumstances in which the document was executed are suspicious or to lead such evidence to show that the document was not acted upon at all. In this case the document was executed and after execution of the said document, the wife left the house of husband and started staying with her brother. This document contains a clause that they are residing separately

1

2 3 4

Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983 Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217. Dhanalakshmi vs. R. Prasanna Kumar, I (1990) DMC 36 SC. K. Kamaldevi vs. Kammala Kumara Sekhar, I (1994) DMC 183 AP. Rajendra Devidas Hirurkar vs. State of Maharashtra, I (2000) DMC 590 Bombay.

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Law of Maintenance

by mutual consent. It was held that it shows that the document was acted upon. 1

Cancellation of order The legislative intent is manifest in the language used in Subsection 2 that the order needs to be cancelled or varied by the Magistrate, if the Magistrate feels that the order of maintenance passed by him should be cancelled or varied in view of the decision of the competent civil court. Without such cancellation and variation, the order of maintenance would not be rendered ineffective. The civil courts decision must be brought to the knowledge of the Magistrate whether rendered before or after the order and the Magistrate shall then consider the question of cancellation or variation of the maintenance order. However, a clear and categorical finding, if given by the competent Civil Court, cannot be overlooked or ignored or disregarded by the Criminal Court. 2

Challenge to consent decree The whole purpose of Section 19(2) of the Hindu Marriage Act, 1955 is that if conciliation between the parties has been arrived at, the parties are bound by it and cannot wriggle out of it. This is the reason why it has been provided against a decree passed on the basis of compromise. If the arguments is to prevail it would mean that the object of the Act, i.e. conciliation and early settlement of disputes between the wife and husband would be fraught with danger and would be completely outside the aims and objects of the Act. Therefore it was held that in view of the provisions of Section 19(2) of the Act no appeal would be maintainable against the judgment decree of divorce based on conciliation between the parties. 3

Change in circumstances Wife had filed the application on the changed circumstance that husband has married again. When wife has gone out of her own accord, she can also come back because husband has not thrown her out. By second marriage husband has closed the door for the wife to come back. Even if there would be no second marriage keeping a woman in the house as concubine has the same effect. Creating circumstances which would not be congenial to a wife to remain with her husband is a cruelty and is also legal desertion even if husband has the desire to be with his wife without change of circumstance. Thus, on proof of second marriage, 1

2 3

Balkirshna Jagannath Mangsule vs. Kalpana & State., II (1984) DMC 257 Bombay. Harikishan vs. Shanti Devi, I (1989) DMC 29 Raj. Ajay Kapoor vs. Pramila Kapoor, I (1992) DMC 85 All.

Practice & Procedure—Consent order

523

prior Civil Court decree when there was no second marriage or keeping a concubine would not have any effect. 1 Proceeding under Section 125, Cr. P.C. is summary in nature. On the materials Court is to come to the conclusion whether there is second marriage. Basing on oral evidence and birth certificate of a female child where petitioner has been recorded to be the father, trial Court has come to the conclusion that petitioner has married again. No material had been brought on record by petitioner that there is another person of the same name in the village or that the registration has been made wrongly otherwise. In such circumstance, it was held that the finding of trial Court cannot be said to be unreasonable to be interfered with in a revision. Hence, it was held to have been proved by the wife that petitioner has married again. 2

Condonation of delay Where a certificate of doctor was produced to explain the cause of delay it was found that the certificate of doctor filed in support was totally false one. It is apparent by only reading it. It does not mention as to by which ailment and if the appellant was down then of what period. It was held that the appellant had just procured the said certificate for the sake of production. It has no sanctity. 3

Consent order In proceedings under Section 488 where a petition of compromise fixing the maintenance allowance is filed by both the parties, the proper order to be passed by Magistrate in such a case ‘Petition of compromise filed. Order in terms of compromise’ and not ‘case amicably settled. Petition of compromise filed. Rule discharged.’ 4 When there is an order passed by the Court, may be on the basis of consent of the parties, it was held that the learned Magistrate and the Sessions Judge have misread facts and law and had improperly held that since there was no order of the Court granting maintenance under Section 125, no application for variance of the quantum of maintenance under Section 127 is maintainable. 5

1 2 3 4 5

Neheru Bag vs. Tapaswini Bag, I (1992) DMC 197 Ori. Neheru Bag vs. Tapaswini Bag, ibid. Devilal vs. Kantabai, II (2000) DMC 238 MP. Debjani Biswas v. Rasik Lal Biswas, AIR 1941 Calcutta 558 DB. Dagdubai vs. Mohanrao, II (1995) DMC 512 Bombay.

524

Law of Maintenance

Counter claim Where the wife was claiming maintenance from husband it was held that the counter claim cannot be made by husband to seek divorce from the wife. 1 The same are the grounds on which a Hindu husband or wife can claim maintenance under Section 18 of the Hindu Adoptions & Maintenance Act. In this case the husband as well as the wife were accusing each other of desertion as well as cruelty. In a matrimonial matter regarding the maintenance or divorce the conduct of the respective party has to be looked into and, therefore, the proceedings for maintenance and divorce cannot be said to be of different genus. They arise out of the same common bond i.e. the marriage and, therefore, unless otherwise restricted a counter-claim for divorce was held to be maintainable under Order 8, Rule 6-A in proceeding for the grant of maintenance. 2

Creation of charge Justice West 3 has observed as under: “If the heir sought to defraud her, he could not indeed, by any device in the way of parting with the estate, or changing its form, get rid of the liability which had come to him along with the advantage derived from his survivorship; and the purchaser taking from his with reason to suppose that the transaction was one originating not in an honest desire to pay off debts, or satisfy claims for which the estate was justly liable, and which it could not otherwise well meet, but in a design to shuffle off a moral and legal liability — would, as sharing in the proposed fraud, be prevented from gaining by it. …….It was therefore immaterial that the transferee had notice of the claim to maintenance.” Relying on the above it was noticed that the Section 39 of Transfer of Property Act amended in 1939 by Act 20/1939, where the earlier wordings “transferred with the intention of defeating such right” was amended. These wordings are found in the said section. Therefore, if the purchaser is a transfer for consideration, it takes subject to the right, if it is gratuitous transfer, it takes subject to the right whether he has notice of it or not. The effect of the amendment is to make the widow to prove the transfer made with the intention of defeating her rights. 4

1 2 3 4

Neelam Singh vs. Vijaya Narian Singh, AIR 1995 All 214. Neelam Singh vs. Vijaya Narain Singh, ibid. Lakshman vs. Satyabhama Bai, 1977 (2) Bombay 494. Kanthamma vs. Nanjunda Devaru, 1999(1) HLR 213 Karnataka.

Practice & Procedure—Date from which amount to be awarded

525

Cross Examination The petitioner got examined himself and challenged the statement of the opposite party and her witness. He could also produce evidence of his end to establish his version of the case in this regard. Since he did not take any steps to contradict the opposite party or to establish his own version, the evidence of the opposite party on the most vital point may be accepted as it was practically ex parte. 1

Date from which amount to be awarded Maintenance is to be awarded from the date of order, but the Court is not debarred from awarding it from the date of application. To make maintenance payable from the date of application, the Court must have cogent reasons for ordering so. Normally, the reasons relate to the conduct of the husband during the trial. The husband, who is guilty of delaying tactics in trial and had been putting obstacles in early disposal, can be directed to make the payment of maintenance from the date of application. In this case, there was no such allegation. The learned Trial Court, while awarding maintenance from the date of application, had been influenced by the cruelty of the husband towards his wife. It was held that it was not the relevant consideration for ordering maintenance payable from the date of application. Cruelty can be valid ground in awarding maintenance, but if the maintenance is to be made payable from the date of application, this will not be a relevant ground. 2 Where the application is kept pending and the party making application is not responsible for protracting the proceedings, in such cases court has to bear in mind two maxims of equity which are well settled, namely, Actus Curiae Neminem Gravabit. An act of the Court shall prejudice no one. 3 In Broom’s Legal Maxims 4, it is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The maxim should, however, be applied with caution. The other maxim is “Fiat Justitia”, justice be done and that justice should be fair causing prejudice to no one. 5

11

2 3

4 5

Asraf Ali Molla vs. Mst. Manowara Khatoon Bibi, II (1986) DMC 99 Calcutta. Charanjit Singh Grewal vs. Inderjit Kaur, I (1989) DMC 77 P&H. Indira Gagele vs. Shaildendra Kumar Gagele, AIR 1992 MP 72: 1991 JLJ 179: 1991 MPLJ 832. 10th Edition, 1939 at page 73 Indira Gagele vs. Shaildendra Kumar Gagele, AIR 1992 MP 72: 1991 JLJ 179: 1991 MPLJ 832.

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Law of Maintenance

Normal rule is to award temporary maintenance to the applicant by the Court from the date of filing of application. There may be certain exceptions to this normal rule, but I do not find any exceptional facts and circumstances in this case which warrant deviation from this settled proposition of law. The hardship of husband in this case as well as his position to unable to make payment of arrears of maintenance is hardly of any relevance and weight. It is not consideration what to say a relevant consideration that in case the temporary maintenance is awarded from the date of filing of the application by wife, the husband would not have been in a position to bear out this burden of payment of arrears. If we go by this consideration, then for an unscrupulous husband as well as for the reasons that the Court for its own is unable to decide the application for a long period the wife shall be sufferer or sustain injury though either way nothing is attributable to her in the matter. It is not unknown to the Courts and particularly this Court that whatever may be the nature of application, in deciding thereof, the Court needs a reasonable time. Merely on filing the application on the same day and without following the principles of natural justice, the Court cannot pass the order. So the reasonable time is to be taken by the Court in following due process of procedure to decide the application. Sometimes, it also happens that the husband makes attempts to delay the disposal of such application. However, neither of the Counsel for the petitioner nor respondents have come up with any complaint of this nature against any of the spouse. In view of this fact, it is a case where temporary maintenance is to be granted to the wife-respondent under Section 24 of the Hindu Marriage Act, 1955, from the date of filing of the application. 1 In the case of Gangabai vs. Shivram, 2 it was held as under: “That when the Magistrate has given a finding that the applicant was forcibly turned out by the husband-opponent who never cared or tried to bring back the applicant and on the contrary married another woman. In such circumstances, it is not difficult to conceive that the applicant was driven to seek help and obligation of others quite unwillingly in order to survive during the period of litigation……… The reason for awarding the maintenance allowance for the period of litigation i.e. from the date of application to the date of the order is, in my opinion, implicit in the finding given by the Trial Magistrate as aforesaid.” The above observations were relied in a later case as well. 3 1

2 3

Natvarbhai Muljibhai Chauhan vs. Hansaba Natvarbhai Chauhan, II (1999) DMC 283 Gujarat. 1989 MPLJ 44: 1988(2) All India Hindu Law Reporter 739 (MP). Kanshiram vs. Shantibai, 1999(1) HLR 380 MP.

Practice & Procedure—Date from which amount to be awarded

527

Court should normally pass order to pay the maintenance from the date of order, if not from the date of application for the maintenance. Therefore, in the absence of any such specific direction to pay maintenance either from the date of order or from the date of application, it should be construed that the payment of maintenance is only from the date of order in view of Section 125(2), Criminal Procedure Code. If the Court intended to pass an order for payment of maintenance from the date of application, it should have stated so in the order. 1 A minor girl was not granted interim maintenance. The case remained pending for about nine years for no fault of the minor girl. It was held that the learned Session Judge was, therefore, perfectly justified to grant maintenance is her from the date of application. 2 Section 125(2), Criminal Procedure Code is very clear that such maintenance shall be payable from the date of the order, or, if so ordered, from the date of the application maintenance. Considering the aforesaid provisions there can be no dispute on the point that ordinarily payment of maintenance under Section 125, Criminal Procedure Code has to be ordered from the date of the order but if the Court decides to award maintenance from the date of application them reasons have to be given in the judgment. 3 The plain meaning of the words used in Sub-section (2) of Section 125, Criminal Procedure Code is that if no date is specified in the order, the maintenance is payable from the date of the order but the Court has a discretion to specify that the maintenance shall be payable from the date of application. The allegations made in the application for grant of maintenance sufficiently revealed prima facie refusal and neglect on the part of the petitioner to maintain his wife who has no source of income and is unable to maintain herself. It was held that the trial Court rightly considered the respective contentions of the parties and then passed the impugned order. Under Sub-Section (2) of Section 125 Cr.P.C. the maintenance allowance is payable from the date of the order or if so ordered from the date of the application for maintenance and Court is not

1

2

3

Suraboyina Vijaya vs. Suraboyina Dharmaraju, 1999(1) HLR 423 AP. Ameen Khan vs. State of Rajasthan, 1999(1) HLR 577 Rajasthan: II (1999) DMC 536. Gusai vs. Banoobai, 1999(1) HLR 624 MP.

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bound to record reasons for allowing maintenance from the date of application. 1 A bare reading of Section 125 Criminal Procedure Code and more so Sub-section 2 will show that the allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. Therefore, if the Court feels that the amount of maintenance should be ordered from the date of application there should be some reasons for ordering so. 2 In one case, the respondent had withdrawn from the society of the appellant much before the institution of the proceedings. There was no notice given by her prior to the filing of the suit making demand for maintenance. In the written statement, the appellant pleaded that he was always ready and willing to maintain the respondent who has voluntarily withdrawn herself from his society. He offered to maintain her and did not resist payment of interim maintenance during the pendency of the suit. That being so, it was held that this was a fit case where no maintenance should be granted to the respondent for any period prior to the suit. 3 Ordinarily, if maintenance is granted, direction is usually given for payment of maintenance from the date of the application. Where, however, some interim maintenance is paid, subsequently the Court may direct that maintenance was decided in the final order may be paid from the date of the final order. Similarly where the case is unnecessarily lingered due to laches of the wife, the Court may for justifiable reason direct that payment of maintenance should be from the date of order and not from date of application. No hard and fast rule can be laid down on this aspect and the matter is essentially one of discretion of the Court. 4 In this case, the Magistrate had not given any reason as to why maintenance is to be paid from the date of the order and not from the date of application. Applicant levelled charges of adultery against his wife, the opposite party to the petition, without proving the same in the Court. It was held that such habit is generally rampant and reckless charges of corrupt life against the wife are levelled without any hesitation by the husbands. Such a conduct on the part of the husband is incomprehensible and this practice is to be deprecated. If such charges are levelled and not 1 2 3 4

Nirmal Dass vs. Usha Devi, I (1992) DMC 387 P&H. Qamruddin vs. Rashida, II (1992) DMC 328 Raj. Bhagwant Prasad vs. Sahodra Bai, I (1982) DMC 198 MP. Kanhu Charan Jena vs. Nirmala Jena, I (2001) DMC 272 Orissa.

Practice & Procedure—Delay & laches

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proved it cannot be said that the Court has fixed maintenance allowance from the date of application without giving appropriate reason. This itself constitutes one of the reason for granting maintenance allowance from the date of application. 1 In case the Court start to grant the maintenance which includes temporary/interim maintenance from the date of the order then the husband who is capable of managing delay in disposal of such an application would be benefited. The delay in the disposal of the application in general in the case is not because of any fault of the wife but sometimes our adversary system itself is a substantial cause of the delay in disposing of the application. Otherwise also irrespective of the fact that the application has been filed for grant of maintenance by the wife, the husband has pious obligation and duty to maintain his wife. 2

Delay & laches The couple lived together for a short span of time when wife left the company of her husband. It was thereafter that she delivered a female child. This happened some time in the year 1961. It was in 1972 that husband went abroad and re-married thereafter. If wife had left the company of her husband of her own and continued living separately for a period of about 10 years, she could not claim any maintenance from her husband. Without commenting upon the legality or otherwise of the second marriage of the husband, it was held that the same would not give any fresh cause to the wife to claim maintenance. 3 Section 5 provides for the admission of appeal or application mentioned in the said Section after the ‘prescribed period’. The expression “prescribed period” has been defined in Clauses (j) of Section 2 of the Act. It means the period of limitation computed in accordance with the provisions of the Limitation Act. The of limitation computed in accordance with the provisions of the Limitation Act. The period of limitation as defined in Clauses (j) means the period of limitation prescribed for any suit, appeal or application by the Schedule of the Act. In the Schedule itself, however, an application under Section 126 of the Criminal Procedure Code has not been mentioned. But in view of Subsection (2) of Section 29 of the Act where any special or local law prescribes for any suit, or application a period of limitation different from the period prescribed by the Schedule, for the purpose of 1 2

3

Kamal Kishore vs. State of Uttar Pradesh, I (2001) DMC 313 All. Amankumar Latibhai Parekh vs. Pritiben Amankumar Parekh, II (2000) DMC 433 Gujarat. Seeso @ Bakhshish Kaur vs. Pakhar Singh Jhuti, I (1991) DMC 505 P&H.

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determining the period limitation prescribed for any suit, appeal or application by such special or of local law the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule, Provisions of Section 4 to 24 of the Act would, therefore, be applicable for determining the period of limitation prescribed by the special or the local law to the extent they are not expressly excluded by such special or local law. There is nothing in Section 125 of the Criminal Procedure Code to expressly bar the application of Section 5 of the Limitation Act. So Section 5 may be availed of for computing the period of limitation prescribed in Section 126. 1

Determination of paternity The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the Magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub-section 6 of Section 488 of old Code was held mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. Under that sub-section, all evidence under that chapter shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word “all” with which the sub-section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader. It was conceded that Sections 200 to 203 of the Code do not apply to an application under Section 488 of the Code. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this position; for, if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry. It appears that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence 1

Satrunghna Adak vs. Sonali Adak Nee Tung. II (1993) DMC 263 Calcutta.

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531

is taken against him, it lightens the burden of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may contest only the quantum of maintenance. It was therefore held that Section 488 of the Code does not contemplate a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice. 1 In one case it was admitted that one Gunwant(husband) had been residing in Manorama’s house as a tenant. In fact, that is his own case. Manorama, as the landlady, therefore, deposed, entering the witness box for Gunwant, that Gunwant’s brother Ganesh was her tenant, that Ganesh, his wife and Gunwant were residing in her house, that she also knew Pushpa Vithova Butale (wife) who lived at a short distance from her house. On cross-examination, the very clear admission which Manorama had made is that Pushpa Butale had also been in fact, staying with petitioner Gunwant in her house, that she gave birth to a female child which so living in her house along with the petitioner Gunwant, that the petitioner Gunwant had therefore left her house. She also stated that she had no grievance against him because due rent had been paid to her also. The establishes that the witness has no animus whatsoever against the husband apart from the fact that she was called by him only as his witness. In view of above it was held that the evidence of Manorama lends further credence to the testimony of the old man Bajirao, aged 65 years. He has stated quite assertively that the petitioner Gunwant and Maduri’s mother Pushpa were residing in one room as tenants, that they cohabited for 3 years, in the said room and stating frankly at the same time that he was not aware whether they had been legally wedded husband and wife. According to him, they did, however, live as husband and wife. A considerable length of cross-examination failed to achieve any result. The witness has asserted the fact that Pushpa and Gunwant had lived as wife and husband. In the circumstances, there is little objection that can now be left to be taken and challenge to be raised to the order passed by the learned Additional Session Judge. Quite obviously, there was an error apparent on the face of the record so far as the decision given by the learned Magistrate was concerned. It was an entirely perverse appreciation of the evidence by the learned Judicial Magistrate making it incumbent upon the learned Additional Session Judge to intervene and 1

Nand Lal Misra vs. Kanhaiya Lal Misra, AIR 1960 SC 882: 1960 CrLJ 1246: 1960(3) SCR 431: 1960 Ker LT (SC) 25: 1961 All WR (HC) 53.

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correct the illegality committed. that jurisdiction, upon a perusal of the record, must be found to have been rightly exercised by the learned Additional Session Judge. 1 Child begotten during the subsistence of valid marriage — The husband failing to prove that he had no access to the wife during the period of question— Presumption under section 112 of Evidence Act, 1872 is raised — The wife or child cannot be subjected to DNA testing. 2 The child was born during the continuance of a valid marriage, i.e. (a marriage not yet established to be invalid) is conclusive proof that the child is born to the husband unless he is able to prove that the had no access to the wife at any time, when the child could have been begotten. Therefore, the husband has to establish non-access to the wife after marriage. Admittedly, they had spent, at least one night together, even according to the husband. Even thereafter there is no proof of nonaccess. Admittedly, there was in existence opportunity for marital intercourse on the first night. Once such an opportunity is found to be in existence, the husband falls outside the exception mentioned in Section 112 inasmuch as what is required under Section 112 is non-access, i.e. non-existence of opportunity for marital intercourse, at any time when the child could have been begotten. The words again are ‘could’ have been begotten and not ‘actually begotten’. In this case, the parties having met on the least one night for purposes of marital intercourse, the husband has no chance to prove non-access or non-existence of opportunity for marital intercourse. Even thereafter, there must be proof of total non-access. 3 The mere allegation of fraud or suppression does not convert the marriage into an invalid marriage. Fraud or such suppression can be established only at the trial and after the Court accepts the plea. A mere plea or fraud or suppression does not render Section 112 inapplicable. 4 If the conclusive proof afforded by Section 112 protects the child and the mother too, the case not falling under the exception, the second question of permitting rebuttal evidence by DNA finger-printing does not arise at all. Such a situation could arise if the Legislature had used the words ‘may presume’ or ‘shall presume’ instead of the words ‘conclusive proof’; or where the case falls within the sole exception mentioned in 1

2 3 4

Gunwant Bhagwan Wakode vs. Maduri Gunwant Wakode, I (1992) DMC 275 Bom. Mathew vs. Annamma Mathew, 1994 (1) DMC 525 (DB) Ker. Mathew vs. Annamma Mathew, ibid. Mathew vs. Annamma Mathew, ibid.

Practice & Procedure—Directions for blood test

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Section itself. Hence, unless Parliament amends Section 112 by substituting the words ‘ may presume’ or ‘shall presume’ for the words ‘conclusive proof’ in Section 112 of the Evidence Act, it is not possible to permit DNA finger-printing in cases which do not fall within the exception mentioned in the Section. The said exception is the sole exception, as the Section stands today. 1

Directions for blood test In India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the Court to direct such a test to be made. In Hanumamma vs. Polavarapu Subbayya, 2 an application was preferred under S. 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test. It was observed as under: Section 151, Civil Procedure Code, has been introduced into the Statute book to give effect to the inherent powers of Courts as expounded by Woodroffe, J., in Hukum Chand Boid vs. Kamalan and Singh. 3 Such powers can only be exercised ex debito justitiae and not on the mere invocation of parties or on the mere volition of courts. There, is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before me that in England this sort of test is resorted to by Courts where the question of non-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylor’s Principles and Practice of Medical Jurisprudence, Volume 8, where it is stated thus: “In Wilson vs. Wilson, Lancet, 1942 1.570, evidence was given that the husband’s group was OM, that the wife’s was BM and that the child’s was ABN. The Court held that the husband was not the father of the child, and granted a decree for nullity.” It is also pointed out by learned counsel that in the test books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Modi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercara in June, 1941, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test.

1 2 3

Mathew vs. Annamma Mathew, 1994 (1) DMC 525 (DB) Ker. (1951) 1 Mad LJ 580: AIR 1951 Mad 910 (1). 1906) ILR 33 Cal 927.

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That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so.” The same view was taken by the Kerala High Court 1:— “A special protection is given by the law to the status of legitimacy in India. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men Will Dot of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his. The presumption of law of legitimacy of a child will not be lightly repelled. It will not be allowed to be broken or shaken by a mere balance of probability. The evidence of non access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive (See Morris v. Davies. The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted. There is an aspect of the matter also. Before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful, Here no consent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this consent. Therefore, in these circumstances, the learned Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned Judge is also correct in holding that there was no illegality in refusing a blood test. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder v. Bhoopala, 2 and the earlier decision of the same court in Venkateswarlu v. Subbayya. 3 Such 1 2 3

Vasu vs. Santha, 1975 Ker LT 533 AIR 1959 Mad 396. AIR 1951 Mad 910 (1).

Practice & Procedure—Directions for blood test

535

an adverse inference which has only a very little relevance here will not advance the appellant’s case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the Ist respondent at a time when these children could have been begotten. That is the only proof that is permitted under S. 112 to dislodge the conclusive presumption enjoined by the Section.” Madhya Pradesh High Court, 1 held as under:— “The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal.” Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal. In Raghunath vs. Shardabai, 2 it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities. In Bhartiraj vs. Sumesh Sachdeo, 3 it was held as under:— “Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say:— “Medical Science is able to analyse the blood of individuals into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher: between two given men who have had 1 2 3

Hargovind Soni vs. Ramdulari, AIR 1986 MP 57. AIR 1986 Bom 386 at 388. AIR 1986 All 259.

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sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father. The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer.” In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid and that every person is legitimate. Marriage or affiliation (parentage) may be presumed, the law in general presuming against vice and immorality. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. The Courts in India can not order blood test as a matter of course. Principles for exercise of jurisdiction were laid down 1 as under:— (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. 1

Goutam Kundu vs. State of West Bengal, AIR 1993 SC 2295: 1993 CrLJ 3233: 1993 CrLR (SC) 487: 1993(2) Crimes 481: 1993(3) SCC 418.

Practice & Procedure—Dismissal in default

537

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis. Once the marriage procedure and paternity of child was admitted, it does not lie in the mouth of husband/father to contend that no valid marriage came into existence as essential rites were not performed. 1

Dismissal in default Delhi High Court 2 was of the view that an application for maintenance, if it is dismissed for default of the appearance before evidence is recorded, could be restored because the order of dismissal was an administrative order and not a judicial order and the Magistrate has power to set it aside. This case was subsequently considered by Allahabad High Court, 3 and the Court had dissented from the view taken by the Delhi High Court. It was held that an order passed under Section 125 Criminal Procedure Code cannot be deemed to be administrative order. It is a judicial order because the revision lies against such final order. Modification of the order can be made under the provisions of the Criminal Procedure Code and for default in carving out the order of maintenance the defaulter can even the sent to jail for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant. Therefore Allahabad High Court held 4 that an order of this nature cannot be considered to be an administrative or executive order. It is to be borne in mind that a petition filed under Section 125, Cr.P.C. is not a complaint and the person who is arrayed as the opposite party is not an accused. The proceedings under Section 125, Cr.P.C. is a proceeding of a Civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing a proceeding of this nature provided sufficient grounds are shown. 5

1 2 3

4 5

Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, 1999 (7) SCC 675 Prema Jain vs. Sudhir Kumar, 1980 Crl.LJ 80. Akhtari Begam vs. Ahmad Hussain, 1984 All Cr Cases (Summary of Cases at page 85). Pramod Kumar Mittal vs. Kanchan Devi, I (1988) DMC 159 All. S.K. Alauddin @ Alai Khan vs. Khadiza Bibi @ Mst. Khodeja Khatun, I (1992) DMC 268 Cal.

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Disposing of the application under Section 125 of Criminal Procedure Code merely on the basis of an affidavit, is an error in the order of maintenance. 1

Divorced wife Normally divorced spouse will only be living separately and the question whether it is by mutual consent or not does not arise. Obligation to live with the husband and sufficient reason for refusing to live with the husband will arise only during subsistence of the marriage. The bona fides of the husband in the offer to maintain the divorced wife if she comes and lives with him itself is not a matter to be considered even though patently the male fides is clear from the fact that divorce is ordered at his instance. After divorce the wife is not bound to discharge marital obligation including her company and submission to conjugal rights of the husband. The husband has equally no right to request her to come and reside along with as a condition precedent to payment of maintenance Marital rights and obligations are available only during the subsistence of the marriage. There is no question of showing good grounds for separate residence. 2 The provision to award maintenance by a summary procedure to a divorced wife has been incorporated in the new code by way of public policy in order to avoid vagrancy. The only disqualification provided in the case of a divorced wife are remarriage and ability to maintain herself. Evidently these two conditions are there because they are not inconsistent with the public policy. She need not satisfy any other condition to make herself eligible for maintenance and the husband cannot impose any condition in order to avoid liability. To ask for the company of a divorced wife and make it a condition precedent for the liability for maintenance is opposed to the entire provisions. 3

Double payment Double payment of maintenance is not intended by law. If any money has been paid or deposited towards payment of maintenance in the divorce petition, the same is liable to be adjusted in the payment of maintenance ordered under Section 125 Criminal Procedure Code. 4

1

2 3 4

Shankar Gohane (Gavale) vs. Kalpana Gohane (Gavale), 1999(1) HLR 126 Bombay. Velukutty vs. Prasannakumari, II (1985) DMC 447 Kerala. Velukutty vs. Prasannakumari, ibid. Dhanalakshmi vs. R. Prasanna Kumar, I (1990) DMC 36 SC.

Practice & Procedure—Ex parte order

539

Efforts for re-union If the wife on account of her past experience about the husband has been scared so much that she is not even prepared to give a second thought to the proposal to going back to the matrimonial home, then the Court cannot with a view to settle the matrimonial dispute send back the wife. If some thing untoword happens thereafter none of the parties concerned in this litigation including the lawyers and the court itself would be able to sleep with an easy conscience. Examining all witnesses who have repeated the same story as that of the husband’s genuine desire to get back the wife were unable to convince the Magistrate. It was held that the learned Magistrate who had the additional advantage of viewing witnesses before his own eyes was a better judge of the Character of the witnesses and the tenor of their evidence. 1

Enhancement In view of the ever increasing trend in the prince index of the essential commodities the maintenance allowance granted to the applicant deserves to be enhanced to meet the demand of cost of living. 2 The pendency of a Section 482, Criminal Procedure Code, application may not therefore, be a bar for the wife to file an application for enhancement of the maintenance amount. 3 Keeping in view the disability of the wife, who is said to be a hump lady and the ever increasing trend in the price index of the essential commodities it was held that the maintenance allowance granted to the applicant deserves to be enhanced to Rs. 500/- per month which shall be payable to the applicant from the date of the order of the Judicial Magistrate. 4 Judicial notice can be taken of rising prices with the result that the cost of bare existence is regularly rising, rather mercurially. 5

Ex parte order It is a cardinal rule of interpretation of statutes that ordinarily words in a statute must be given their plain, ordinary and natural

1

2

3 4

5

Lilaben Hazarak Chandbhai vs. Laljibhai Hirabhai Bhagat, II (1985) DMC 429 Gujarat. Durgwatiyabai vs. Govinddas, II (1995) DMC 58 MP; II (1995) DMC 490 MP. Bharat Sen vs. State of Uttar Pardesh, 1999(1) HLR 363 All. Durguatiyabai vs. Govinddas, II (1995) DMC 58 MP; II (1995) DMC 490 MP. Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.

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Law of Maintenance

meaning in the absence of ambiguity. Where the language of a statute is clear, the clear meaning must be given effect to deviation should be resorted to only in a case where it is absolutely necessary to carry out the scheme of the statute or to prevent mischief and advance remedy in accordance with the true intention of the legislature. 1 On the basis of above preposition of law, it was held that a plain reading of the proviso to Section 126(2) would leave no room for any doubt that the period of three months is to be computed from the date of ex parte order and not from the date of the knowledge. It could be seen from the provisions of the Limitation Act of 1963 that whenever the legislature intended to prescribe date of knowledge as starting point of limitation it has specifically done so. The period limitation prescribed in Article 123 of the Limitation Act is 30 days commencing from the date of the decree, but where summons or notice was not duly served it has been specifically provided that period of limitation has to be reckoned from the date of knowledge. The expression “date thereof” in the second part of the proviso to sub-section (2) of Section 126 of the Code can only mean that the period of three month is to be reckoned from the date of order. 2 First part of the proviso empower the Magistrate to proceed to hear and determine the case ex parte, if he is satisfied that the person against whom an order for maintenance is proposed is wilfully avoiding service or wilfully neglecting to attend Court. Second part of the proviso states that “any order so made” that is, any ex parte order so made, may be set aside for good cause shown an application made within three months from the “date thereof”, that is the date of the order. The view accepted in some of the decisions is that unless the ex parte order is properly or correctly made after arriving at the requisite satisfaction, it cannot be regarded as an “order so made” and that bar of limitation applies only if the “order so made” is sought to be set aside. In other words, if the ex parte order is one wrongly passed or passed without arriving at the requisite satisfaction or without due service actual or attempted, it is not an “order so made” and hence bar of limitation cannot apply or at any rate the “date thereof” must be interpreted as “date of knowledge of the order”. This view loses sight of the significance of the feature of the proviso viz., that it is only “an order so made” which can be set aside and that too on an application if made within the period of limitation and on good cause being shown. If an illegal or even defective or irregular ex parte order is not an order “so 1 2

Damodaran vs. Chellamma, II (1987) DMC 114 Kerala. Damodaran vs. Chellamma, ibid.

Practice & Procedure—Ex parte order

541

made”, it cannot be set aside by the Magistrate under the second part of the proviso since, according to this view, it is only an “order so made” which can be set aside. An ex parte order cannot be regarded as void or non est. There is no lack of jurisdiction to pass an ex parte order since it is not service or process which confers jurisdiction on the Magistrate over persons. Logical conclusion of the view taken in the decisions referred to above would mean that the remedy under second part of the proviso would be available only against proper and valid ex parte orders and not defective or irregular or even illegal ex parte orders. This conclusion would lead to absurdity. such a result would not have been in the contemplation of the Legislature. Whether the ex parte order is defective or not, it can be set aside on good cause being shown, provided the application is made within three months from the date of the order. 1 It is also open to the party aggrieved by the order to invoke revisional jurisdiction of the Court of Session or the High Court under Ss. 397, 399 or 401 of the Code. Until the order made ex parte is annulled or set aside by resorting to any of the methods recognised in law, the order is binding on the parties and cannot be treated as non-set or null and void on the ground that the satisfaction of the Magistrate was not well founded error was committed by the Magistrate in strictly conforming to the requirement of the first part of the proviso in proceeding to determine ex parte. 2 A person against whom such an ex-parte order has been passed has the right to file an application before the Magistrate to set aside the ex-parte order, provided the application is filed within a period of three months from the date of the order. Even if there is delay in filing the application, it is open to him to invoke Section 5 of the Limitation Act. At the same time, remedy of the person who suffers an ex-parte order is not confined to filing an application to set aside the ex parte order before the Magistrate concerned. It is open to him to challenge the order by way of revision before the Revisional Court in terms of Section 397 of the Code. 3 In one case the husband was afforded more than ample opportunities for making the payment did not pay the maintenance pendente lite allowed to the wife under Section 24 of the Act. The Judge 1 2 3

Damodaran vs. Chellamma, II (1987) DMC 114 Kerala. Damodaran vs. Chellamma, ibid. Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238 Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker 479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All Cri LJ 224.

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Law of Maintenance

Family Court thereupon rightly struck off the defence of the appellant who was respondent in the divorce petition. On top of this the husband for reasons best known to him did not appear on 5.1.1997 when the case was fixed for evidence of the wife and instead resorted to the stratagem of filling an application through a brother seeking adjournment on a ground that was transparently manufactured. It was held that his application was rightly dismissed by the trial Judge. Assuming that the appellant husband had a right of cross-examination by absenting himself he chose not to exercise that right. As he was absent he was rightly proceeded against ex parte by the trial Judge. As the evidence of wife consisting of her sole statement was found by the trial Judge to be worthy of implicit reliance he committed no error not to speak of a grievous error by acting upon her statement on oath and allowing her ex parte decree of divorce on the ground of cruelty. There was no requirement under the law that there should always be some corroboration and if the evidence of a solitary witness is found worthy of implicit reliance as in the instant case that could always be acted upon. 1

Exercise of writ jurisdiction It would not be proper to exercise jurisdiction much less extraordinary jurisdiction of this Court to interfere in such matters which are left by the Legislature to the final judgment of the court below. It is true that the jurisdiction of this Court under Article 227 of the Constitution of India is very wide and very large. It is neither appellate jurisdiction nor revisional jurisdiction. It is special extraordinary supervisory jurisdiction invested in this Court, to correct flagrant violation of law cure substantial miscarriage of justice. The jurisdiction cane be invoked only in extraordinary cases where the courts below have acted in disregard of the provisions of law or have refused to follow jurisdiction vested in it or followed a jurisdiction which does not vest in them. It is impossible to say that in such cases, the Magistrate and the learned Session Judge have no jurisdiction to deal with the matter, even if their findings both on law and facts or for a moment, taken to be wrong, mere erroneous, decisions on facts and law will not furnish any ground for any applicant to move the High Court for exercising extraordinary power under Article 227 of the Constitution of India. Therefore, it would be proper if in such cases the High Court acts with some self-imposed limitation and self-restraint. 2

1 2

Om Prakash vs. Babli, 1999(1) HLR 292 Rajasthan. Hem Chandra Shridhar vs. Hemangi Hemchandra Nair, I (1983) DMC 1 Bombay.

Practice & Procedure—Forum of Appeal

543

Ex-parte order The ex-parte order of maintenance has to be passed only on sound principles of law and not on surmises and conjunctures and it should be a reasoned order as giving reasons is one of the fundamentals of good administration of justice. 1

Finding of civil court Once, there is a clear finding of the Civil Court on the point of desertion, neglect and cruelty which is answered in the negative it is not open for the Criminal Court to give different finding on the same issue. The findings recorded by the Civil Court are binding on the Criminal Court for the purpose of deciding application for maintenance under Section 125 of Criminal Procedure Code. 2

Forum of Appeal In view of Orissa Amendment provision of Section 115, Civil Procedure Code there cannot be any doubt that if the valuation of the proceeding/suit is more than rupees one lakh, an appeal or revision, as the case may be, is to be filed in the High Court and in other cases, revision is to be filed before the District Judge. Against a final decision in any proceedings under the Hindu Marriage Act, appeal is to be filled before the Court on the basis of pecuniary jurisdiction. In many cases, it has been observed that where no valuation has been given in proceeding under the Hindu Marriage Act, the forum relating to filing of appeal and, consequently, revision would depend upon the notional valuation. 3 Similar view has been expressed by another High Court 4 Where an appeal is filed before the District Judge, evidently, a second appeal is maintainable before the High Court subject of course, to be limitations envisaged in Section 100, Civil Procedure Code. Since from the aforesaid decisions, particularly that of the Orissa High Court, it is apparent that an appeal can be filed before the District Judge if the valuation is within the pecuniary limit envisaged, there is no rhyme or reason why a revision cannot be filed before the District Judge against interlocutory orders where the valuation is rupees one lakh or less. 5 1 2

3 4

5

R.B. Gurubasavaiah vs. M.G. Preme, II (1992) DMC 520 Ker. Tulsidas Madhavdas Sharma vs. Shantiben Tulsidas Sharma, II (1991) DMC 397 Gujarat. Paras Ram vs. Janki Bai, AIR 1961 All 395 (FB). Tarabati Pandeyani vs. Jogendra Pandey, ILR 1978 Cuttack 559 (DB) Basanti Bose vs. Civil Judge (Senior Division), Balasore, I (2001) DMC 113, Orissa.

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Law of Maintenance

Though under the Hindu Marriage Act a proceeding can be initiated in the Principal Civil Court of the District in view of the Notification such proceedings can be filed before and decided by the Subordinate Judge (presently, known as Civil Judge, Senior Division). The appeal under Section 28 is to be filed as if the appeal is against the decree of the Court deciding the matter. If in other cases, appeal can be filed before the District Judge depending upon the valuation, it is not understood as to how decision of the Civil Judge (Senior Division) in a proceeding under the Hindu Marriage Act cannot be challenged before the District Judge subject, of course, to the question of pecuniary jurisdiction.1 If appeals against all such decision of the Civil Judge (Senior Division) irrespective of the question of valuation could be filed only before the High Court, there would not have been any necessity for the aforesaid Division Bench of the Court 2 to consider the maintainability of an appeal on the basis of the valuation. In this case it was apparent that the District Judge and obviously the Lawyers who were representing the parties before the District Judge without noticing any of the decisions holding the field, jumped to the conclusion without any rhyme or reason that an order passed by the Civil Judge (Senior Division) in a proceeding under the Hindu Marriage Act cannot be challenged in appeal before the District Judge. It appeared that even the Counsel, who was appearing for the petitioner had so conceded before the Appellate Court regarding nonmaintainability of the appeal/revision before the District Judge. But it was held that since the concession of a Lawyer on a question of law is of no consequence, it has to be ignored. 3

Hearing the parties It was the duty of the Presiding Officer or the learned Judge to record his satisfaction after hearing the parties and making such inquiries as may be necessary. Read and re-read the whole order, there is not a slightest reference that the parties were heard except recording the both the parties are present. It is not reflected in the impugned order that the learned Judge has applied his mind to the basic requirements to be fulfilled before acceptance of a compromise petition. There is neither hearing nor the required satisfaction. It was held that to say the least the impugned order is perilously bordering on perversity and it is liable to be quashed on this short ground. 4 1

2 3 4

Basanti Bose vs. Civil Judge (Senior Division), Balasore, I (2001) DMC 113, Orissa. In Tarabati Pendayani ibid Basanti Bose vs. Civil Judge ibid. Banani Deb vs. Debabrata Deb, 1999(2) CCC 122 Gau (DB).

Practice & Procedure—Ingredients of desertion

545

Ingredients of desertion The essential ingredients that constitute the matrimonial offences of desertion take on different complexions, human nature and its complexities being what they are. The simplest form of desertion, defined by the commentators as actual desertion involves the fact of separation (factum desirandi) and the intention to desert (animus desirandi). This contemplates a situation where the spouses have physically parted company, in the first instance and it is demonstrated that there is an intention on the part of one of them to withdraw from the company of the other. In order words, it is not merely a fact that the parties are staying apart from each other for sometime, which may be due to a variety of reasons, but the fact that this is accompanied by the intention to put and end to the married state and to the marital obligations. A slight variation of this situation could arise in case where the offending spouse and, in fact, the guilty one is not the party who has departed but the one who stays behind, such as the familiar situation where, for reasons of sever mental and/or physical cruelty, it becomes unsafe or impossible for the wife to continue to live with her husband and she is forced to leave. Undoubtedly, in such a situation, it would not be open for the husband to contend that the wife has been guilty of desertion. There also arise the restricted category of cases where Courts have held that wilful neglect of an extreme type could be construed as desertion, a typical situation being one where the spouses, though residing under the same roof, one of them has nothing to do with the other and virtually puts an end to the marital status, though neither of them have physically moved out of the premises. 1 Desertion, as pleaded or alleged, may assume one or more of the aforesaid complexions and it is, therefore, essential for the Court to examine the material on the basis of which the charge is sought to be established. It is equally necessary to guard against certain familiar situations to which there exists a total defence, for instance, where it is alleged that the wife left the matrimonial home without the husband’s consent and refused to return in spite of several requests. It would be a valid defence if the Court is satisfied that the grounds which have forced the wife to live separately are genuine and cogent. It is equally wellsettled law that where one spouse has left without any valid justification that the law does not insist on the other spouse making any special of undue efforts to bring the deserting spouse back. It is true that by making such efforts, the innocent party would establish its bona fide, but merely 1

Kishorilal Govindram Bihani vs. SOU. Dwarkabai Kishorilal Bihani, II (1992) DMC 578 Bom.

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Law of Maintenance

because no such efforts were made, it would be incorrect to presume that there is a acquiescence of the act of desertion. 1 Undoubtedly, it is not totally obligatory on the part of one spouse to keep on persuading the party that has left him to resume cohabitation. But in the situations where this is done, it would certainly be an indication of bona fides. It would also be highly supportive evidence of the fact that the party concerned is not the guilty one and was not responsible for the breakdown of the relationship. 2

Inherent powers Court in rare cases interferes with the orders of lower Court in exercise of powers under Section 482, Criminal Procedure Code where Court is satisfied that to prevent abuse of process of Court or otherwise to secure ends of justice the interference would be necessary. 3 In a suit for maintenance interim maintenance can be granted in exercise of inherent power. Wrong nomenclature by mentioning the petition to be one under section 24 of the Hindu Marriage Act would not defeat the relief to the wife and Court is not deprived of the exercise of inherent power under Section 151 Civil Procedure Code. 4 Every Court has inherent power to grant relief during the pendency of the proceedings if the interest of justice so requires. 5

Jurisdiction of criminal Courts A harmonious interpretation of Section 3, 7, 8 and 20 of Family Courts Act, clearly indicates that there is no bar against the parties from approaching other Courts outside the jurisdiction of the Family Court. The exclusion of the jurisdiction of the Courts is confined to the area over which the family Court exercises jurisdiction. Though the wife submitted herself to the jurisdiction of the Family Court by entering appearance and filing counter, it is her right to

1

2

3 4

5

Kishorilal Govindram Bihani vs. SOU. Dwarkabai Kishorilal Bihani, II (1992) DMC 578 Bom. Kishorilal Govindram Bihani vs. SOU. Dwarkabai Kishorilal Bihani, II (1992) DMC 578 Bom. Varchand vs. Guddibai, 1999(1) HLR 635 MP. Somanath Jena vs. Sabitri jena, I (1987) DMC 92 Orissa: 1998(2) CCC 355 (Ori); see also Suresh Chandra Biswal @ Biswalo vs. Maluni Biswalo, 1985(1) OLR 486 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185 Del

Practice & Procedure—Limitation for minors

547

seek independent relief for maintenance under Section 128 Cr.P.C. is not taken away. 1

Legal Aid Legal aid is meant for the purpose to assist the persons of the category of the petitioner not to suffer injustice for lack of funds, or legal assistance. It was therefore directed that under such circumstances, if so required petitioner may apply for legal aid and in that case it may be granted to her in accordance with the provision, but expeditiously and preferably within fifteen days from the date of her application. 2

Lien on property It is only a right to receive maintenance etc. from the profits of immovable property that could be enforced against the transferee of that property that too in the event of the same being transferred to him gratuitous or if transferred for consideration, he had notice of the said right and therefore, the learned counsel in right in contending that the provisions of Section 39 of the Transfer of Property Act, 1882 cannot be made use of for creating a charge on the property which is still in the hands of the husband because Section 39 authorise overreaching the property in the hands of the transferee. 3

Limitation for minors Section 6 dealing with legal disability is applicable in view of Section 29(2) of Indian Limitation Act, 1963 as the application of Section 6 there of is not specially excluded under Chapter IX of Criminal Procedure Code. The minors are not sui juris and the mere fact that they can be represented by mother, father or other guardians is of no consequence. Section 6 of the Indian Limitation Act, 1963 keeps the limitation in abeyance if the person is a minor, insane or an idiot. In so far as the other order of maintenance under Chapter IX of Criminal Procedure Code is concerned, once a minor attains majority and if the said person after attaining of majority is not suffering from any mental or physical handicap, the maintenance order passed in his favour automatically disappears. Even then for arrears accrued by the time of his attaining the majority, petition can be filed within one year of the attaining of said majority. But, so long as the said minor does not attain the majority for the enforcement of the order of maintenance, there can be no fetter of limitation prescribed under the 1 st proviso to Sub-section 3 of Section 125 Criminal Procedure Code and the said provision has to 1 2 3

P. Jayalakshmi vs. V. Ravichandran, I (1992) DMC 273 AP. Madhu vs. State of Delhi, II (1999) DMC 660 Del. Biker Singh vs. Gurmito, I (1982) DMC 167 P&H.

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Law of Maintenance

be read down that the said limitation is only applicable to majormaintenance holders and not minor-maintenance holders. 1

Maintenance by agreement An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will not have the effect of defaulting the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 488 of the Code of Criminal Procedure in our country and it is in consonance with this wholesome public policy that the offspring born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and it attendant social consequences. It was therefore, held that the consideration for the agreement if permitted would not defeat the provisions of any law. 2

Modification of order Section 127, on its plain reading, furnishes the grounds on which the Court passing an order under Section 125, Criminal Procedure Code can modify that order and enhance the maintenance on proof of a charge in the circumstances, but such an order for alteration of allowance can be made only from the date of order passed under this section and not from the date of application seeking alteration. Under Sub-clauses (2) to Section 125, Criminal Procedure Code the legislature has left it to he discretion of the Magistrate to award maintenance from the date of application for maintenance though normally it shall be payable from the date of the order in the petition. But under Section 127, Criminal Procedure Code no such discretion is left to the Magistrate to pass such order in the application seeking alteration of enhanced maintenance, from the date of filling of that application, since the legislature itself did not provide, under Section 127, Criminal Procedure Code that the Magistrate could date back the order or alteration to the date of application. Hence it is not open to the Magistrate or the Revisional Court to exercise such jurisdiction and enhance the compensation from the date of filing of that application. The Courts have to act within the strict limitations set out for the exercise of its jurisdiction and they cannot over-step the same on any equitable grounds. 3 Though there was an agreement or compromise upon which the first application under Section 127 of the wife was disposed of it will not operate as estoppel or waiver in case of subsequent application under 1 2 3

Laxmi vs. Nakka Narauan Goud, I (1994) DMC 224 AP. Sukha vs. Ninni, AIR 1966 Raj 163: 1966 Raj LW 195. Pilli Venkanna vs. Pilli Nookalamma, 1999(1) HLR 337 AP.

Practice & Procedure—Modification of order

549

Section 127 in a changed circumstances. Section 127 application is for modification of the order passed under Section 125 in a changed circumstances. That is the provision of law and no agreement can put a bar for such an application or subsequent application under Section 127 while there is a changed circumstances. 1 The applicant can approach the Civil Court for claiming adjustment in case any question regarding the payment of maintenance arose as observed by the learned Session Judge. The order of the learned Session Judge is just and proper and needs no interference. Counsel made a submission though the objection was raised in a proceeding initiated by wife under Sub-section (3) of Section 125. The learned Magistrate ought to have treated the same as one under Section 127. I am unable to accept this submission. It would not have been in the fitness of things. The applicant ought to have moved the Court for any alteration or modification of the quantum in view of the maintenance awarded by the Civil Court. The learned Magistrate was, therefore, justified in not taking into account the contention in a proceeding initiated by wife under Subsection 3 of Section 125 of the Code. 2 Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter, it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher Court or is varied or vacated in terms of Section 125(4) or (5) of Section 127, its validity survives. It is enforceable and no plea that there has been co-habitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. 3 Relying on the ex parte divorce decree, it was urged that since the competent Civil Court has now dissolved the marriage by decree of divorce and that too on account of desertion by the wife, the petitioner will not be entitled to maintenance. Whether or not a wife would be entitled to maintenance, after a decree of divorce passed by a competent Civil Court on the ground of desertion by her, need not be gone into by this Court in this matter for the simple reason that, an appeal preferred from the said ex parte decree was pending. Therefore, it was held, the 1

2 3

Joydel Kumar Biswas vs. Maduri Biswas, I (1996) DMC 12 Calcutta. Ganpatrao vs. Jyoti, II (1988) DMC 65 Bombay. S. Ragendran vs. Revathy, II (1994) DMC 448 Madras.

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Law of Maintenance

decree of divorce has not assumed finality. In is subjudice in the Court and this Court may even set aside the same. Therefore, assuming that the wife is not entitled to maintenance after decree of divorce on the ground of desertion by her, in the facts of the present case, she cannot be denied maintenance on that ground. As per Explanation (b) to Section 125 of the Code a “wife” means a person who has been divorced by or has obtained a divorce from her husband and has not remarried. In the facts of this case, it was held that there is no difficulty in granting maintenance in her. 1 In an English case it was held that a distinction has to be drawn between the restrictions imposed by the Matrimonial Causes Act 1973 on varying lump sum orders or property adjustment orders which cannot be varied, and the power to set aside an order which has been obtained by fraud or mistake, or by material non-disclosure. The essence of the distinction is that the power to very usually reflects changes of circumstances subsequent to the date of the order, whereas the power to set aside arises when there has been fraud, mistake or material nondisclosure as to the facts at the time the order was made. From the point of view of convenience, there is a lot to be said for proceedings of this kind taking place before a judge at first instance, because there will usually be serious and often difficult issues of fact to be determined before the power to set aside can be exercised. These can be determined more easily, as a rule, by a judge at first instance. 2

Necessary parties Once, it is found that a necessary party has not been impleaded and in any case even the parties who were impleaded have not been served as per requirements of law, the order suffers from serious jurisdictional errors and a glaring material irregularity, calling for immediate remedial action by this Court. 3

Neglect & refusal Section 488 Criminal Procedure Code provides that if any person having sufficient means neglects or refuses to maintain his wife or children, he will be liable to pay a monthly allowance for their maintenance under the provisions of Section 488 Criminal Procedure 1

2

3

Mangala Suresh Kanase vs. Suresh Dadu Kanase, II (2000) DMC 527 Bombay. Robinson vs. Robinson, (1982) 2 All ER 699: (1983) I DMC (BJ) 6: Smethurst vs. Smethurst, (1977) 3 All ER. 1110: (1983) II DMC (BJ) 21; Griffiths vs. Griffiths, (1985) DMC (BJ) 11. Akbari vs. Sabri, II (1992) DMC 531 P&H.

Practice & Procedure—Object of summary remedy

551

Code. No order for maintenance can be passed under the Section unless neglect or refusal to maintain by the husband or father is proved. The provision has been made with an object to grant the maintenance to the deserted wives and children and cannot be used as a measure of and a liver to harass or pressurize a bona fide husband. The onus of proof lies upon the wife to show that she was justified in living separately for claiming maintenance. The existence of circumstances in a particular case may justify the wife to claim maintenance by living separately but in all other cases it has to be presumed that a wife under the normal circumstances is bound to live with and under the roof and protection of her husband. This would imply the wife to prove the existence of circumstances justifying her not living with the husband. If the wife fails to prove that she had been forced to live separately or that the doors of the matrimonial home have been shut by the husband or that her living with the husband is dangerous to her life and health or that the husband has incurred some disqualification under any statute to have her company, she would not be entitled to the grant of maintenance. Neglect or refusal need not be specific and can be inferred from words, conduct and circumstances of the matrimonial life of the parties. Existence of justifiable grounds for wife’s refusal to live with her husband can be a ground to presume the neglect attributable to the husband to maintain his wife. A woman is however entitled to live with her husband with that amount of decency and dignity which prevails in her class and the environments of the society to which she belongs. If the treatment of the husband does not permit wife to lead such a decent an dignified life the same may amount to neglect or/and refusal to maintain her under the peculiar circumstances of each case. The circumstances justifying the wife to live separately cannot be exhaustive but can be only illustrative. The Courts below adjudicating upon the disputes under Section 488 Criminal Procedure Code have to keep in mind the facts and circumstances of each case. keeping in view the class, social status, and the position of the parties which they hold in the society to determine neglect or refusal to maintain. It the wife fails to prove that the husband neglected or refused to maintain her, she will not be entitled to claim any maintenance. 1

Object of summary remedy This provision provides a speedy remedy against starvation by way of a summary procedure. It is not co-extensive with the civil liability of a husband. It gives effect to the fundamental and natural duty of a man to maintain his wife. The basic idea behind the provision is that 1

Satya Devi, vs. Gurdeep Singh I (1988) DMC 267 J&K.

552

Law of Maintenance

no wife should be left helpless so that she may be tempted to commit crime. This provision enables a Magistrate to take summary action for prevention of destitution. 1 A proceeding under Section 125 of the Code of Criminal Procedure is an independent proceeding. Section 125 gives effect to the fundamental and natural duty of a man to maintain his wife, children and parent when they are unable to maintain themselves. It is applicable and enforceable whatever may be the personal law the persons concerned are governed. Section 24 and 25 of the Hindu Marriage Act, 1955 do not stand in the way of relief under Section 125 Criminal Procedure Code Section 4(b) of the Hindu Adoptions & Maintenance Act, 1956 does not override the provisions of Section 125. Similarly, the provisions of Section 18 or 20 of the Hindu Adoptions & Maintenance Act, 1956 have not affect the right of the wife or the child under this Section. The existence of a previous order for alimony does not oust the jurisdiction of the Magistrate to order maintenance under Section 125 of the Criminal Procedure Code. The Section contains no direction that an order under Section 125 cannot be made if there is order of Civil Court for maintenance. It cannot, therefore, be said that the present application under Section 125 of the Criminal Procedure Code is not maintainable simply because an order of alimony pendente lite has been passed under Section 24 of the Hindu Marriage Act in a matrimonial proceeding between the parties. There is also no question of staying the proceeding under Section 125 Criminal Procedure Code till disposal of the matrimonial suit. The amount paid as alimony pendente lite in the matrimonial suit may, however, be adjusted against the maintenance payable by the impugned order. 2

Omission to reply the notice Conduct in certain circumstances may include silence as well. But the silence by itself, to amount to conduct, must be what may be styled ‘positive-silence’ and in the context of a clear duty to speak. Silence, it is said, is golden except where there is a clear duty to speak. It is true that mere silence, without, more, might not be susceptible of implications of conduct admitting of any adverse inference. Under normal circumstances it might be too much to say that a man by merely omitting to answer a letter must be held to admit the truth of the statements contained therein. There is, it is said, no general duty cast upon a recipient of letter to answer it and his omission to do so does not 1

2

Purnamasi Pradhan vs. Suresh Pradhan, II (1985) DMC 475 Orissa. Gossai Chandra Das vs. Beauty Das, II (1992) DMC 274 Cal.

Practice & Procedure—Pleading

553

amount to any admission of the truth of the statement contained in the letter. But it may be somewhat different where the relationship between the parties and the context in which and the purpose for which the letter is addressed are all such that a reply might properly be expected. There may be conceivable cases where if the written communication does not draw for the an indignant repudiation it may be a circumstance which may not altogether be ignored in assessing the truth or otherwise of the statements contained in the communication. The conduct indicated by silence must, of course, be assessed with all other relevant circumstances and the only fair way of stating the rule of law is that in every case one must look at all the circumstances under which the letter was written and determine whether the circumstances are such that the refusal to reply amounts to a piece of conduct which might admit of and carry with it an element of admission. 1

Pleading It is the fundamental principle in the law of pleadings that no amount of evidence can be looked upon in support of a plea having no foundation in the pleading, and a decision of a case cannot be based on grounds outside the pleadings. If the wife had pleaded that she has spent for the marriage and what amount she has spent and what are the items of expenses for which she spent, the first defendant would have had an opportunity to meet this case of her’s by filing a written statement. In this position only because she has stated in the courses of her evidence that she has spent for the marriage a decree cannot be passed in her favour. 2 Apart from there being no pleadings, the evidence also is not sufficient to come to a conclusion that she has spent any definite amount either for jewels or for other expenses. Thus viewed, the finding of the trial Court that she has spent Rs. 20,000/- for jewels and Rs. 5,000/- for expenses cannot be sustained. Here it may be relevant to note that as per Section 20 of the Hindu Adoptions & Maintenance Act besides father, mother also is bound to maintain her daughter. 3 The facts stated in the application under section 125 and the affidavit filed in support thereof did not indicate existence of any such custom. The argument that the parties have to lead evidence and 1

2

3

Shankerappa vs. Sushilabai, II (1984) DMC 414 Karnataka: (1984)` Kant LC 265: AIR 1984 Kan 112. R. Durairaj, vs. Seethalakshmiammal, AIR 1992 Madras 242: (1992) 1 LW 574. R. Durairaj, vs. Seethalakshmiammal, AIR 1992 Madras 242: (1992) 1 LW 574.

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Law of Maintenance

therefore the absence of such averment at this stage is inconsequential is unacceptable because the issue of interim maintenance must be decided on the basis of material available on record and not on the hypothesis of material likely to be adduced at the time of parties’ evidence. In absence of averment of custom in the petition and the affidavit filed by nonapplicant there was no material before the magistrate to come to a prima facie conclusion of the status of non-applicant as petitioner’s wife. 1

Pleading and libel Section 195 of the Criminal Procedure Code principally deals with prosecution for contempt of lawful authority of public servants for offences against public justice and for offence relating to document given in evidence. It is only that class of offences which go to affect the administration of justice and the sanctity of the evidence and documents tendered before the Court which are covered under Section 195 of the Criminal Procedure Code and if such offences do take palace in a proceedings before the Court, then no other court shall take cognizance of such offences as provided under Section 195 of the Criminal Procedure Code, except on a complaint in writing of that Court or of some other Court to which that Court is subordinate. 2 Therefore, section 195 of the Criminal Procedure Code would not apply when the allegations per se defamatory have been made in writing under the signature of the party and, further, he has deposed on oath before the Court making defamatory allegations against his wife. These allegations constitute the offence of defamation per se and is a noncognizable offence for which the wife is entitled to seek remedy by way of private complaint. 3

Pleadings and proof It appears that in the written objection the petitioner has not stated that she has means to support herself and her daughter and did not even make any such allegations in his evidence nor was it suggested to the opposite party when she was examined as witness that she has means to support herself and her child. In the situation even though the learned Magistrate has not recorded a finding on this point still it does not appear that it has causes any failure of justice and therefore there need not be any revisional interference by this Court. 4 1 2 3 4

Naresh Chandra vs. MST. Reshmabai, I (1992) DMC 46 MP. Chakor Maganlal Raool vs. Prerana, I (1986) DMC 258 Bombay. Chakor Maganlal Raool vs. Prerana, ibid. Sambhunath Jaiswal @ Sambhu Jaiswal vs, Anjana Jaiswal, II (1990) DMC 354 Cal.

Practice & Procedure—Presumption of marriage

555

Where the wife had miserably failed to prove that the husband had been cruel to her or that she had justification to live separate from him, she was not entitled to any maintenance allowance and the petition was rightly dismissed by the learned Magistrate. 1

Precedent The late Lord Reid said in an address in 1971 that, in the search for a middle way between certainty and justice, judges must prevent precedent becoming master, and with this in view a court should have regard to common sense, legal principle and public policy in that order. While remembering that common sense may not always be common to all men or women, and that it may very from generation to generation. 2

Presumption of litigation Under Section 112 of the Evidence Act there is a presumption that if a child is born during continuation of a valid marriage, it shall be the conclusive proof that the child is the legitimate issue of the husband unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. 3

Presumption of marriage The husband himself has admitted that the wife lived with him after marriage. It is difficult to believe that a girl will live in her husband’s house for such a long time without any marriage having taken place. He has further admitted that she has been holding out that she was his wife. If she were not, he would not allow her to do so. He cannot be asked to take advantage of his own fraud. In such a case, even after the passing of the Hindu Marriage Act, 1955, the doctrine of factum validity should be invoked. If the parties are recognized as man and wife, there is a strong presumption in favour of the validity of marriage from and ceremony of the marriage and the legitimacy of its offspring. 4 In another case it was observed that where a man and woman had lived together as man and wife, the law will presume, until the contrary is proved that they were living together by virtue of a legal marriage and not in concubinage. Such presumption can be rebutted only by showing

1 2

3

4

Shareef Ahmed vs. Hanifa Begum, I (1989) DMC 150 All. Per Sir George Baker in Smethurst vs. Smethurst, (1977) 3 All ER. 1110: (1983) II DMC (BJ) 21. Mahesh Kumar Shrivastava vs. Shobha Shrivastva, I (1982) DMC 86 MP. Maujilal vs. Mussammas Chandrawati Kumari, 38 IA 122

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Law of Maintenance

that the marriage was most highly improbable and not reasonable possible, marriage can be proved and intention to enter into wedlock. 1 After all rites and ceremonies only serve to provide proof of marriage as registration does. It is otherwise very difficult after some lapse of time to lead a Pandit to the witness box to prove that the marriage had been solemnized. No documentary evidence is even possible to find. Many of the witnesses disappear meanwhile. No evidence the hard fact of living together survives. In this case the husband has not been able to displace such a presumption based upon his own conduct. It was therefore, hold that the marriage of the parties was validly solemnized. 2

Proof of marriage No rule of construction warrants that the Court should presume existence of a custom which the wife chooses not to plead either because there is no such custom of for reasons beat known to her. Traditional form of Hindu marriage is not by exchange of garlands. It requires certain essential ceremonies like ‘Hom’ and ‘Saptapadi. Therefore unless the spouse states that such form of marriage by exchange of garlands is sanctioned by custom in her caste or community no inference of a valid marriage having taken place can be drawn. The facts stated in the application under section 125 and the affidavit filed in support thereof did not indicate existence of any such custom. The argument that the parties have to lead evidence and therefore the absence of such averment at this stage is inconsequential is unacceptable because the issue of interim maintenance must be decided on the basis of material available on record and not on the hypothesis of material likely to be adduced at the time of parties’ evidence. In absence of averment of custom in the petition and the affidavit filed by non-applicant there was no material before the magistrate to come to a prima facie conclusion of the status of non-applicant as petitioner’s wife. 3 In another case the impugned order was bristling with surmises like the unsigned stamps paper produced by wife must have been executed by the husband but he cunningly omitted to sign it to defraud her, and that in the photograph of marriage produced with the application the face of the green is not clearly visible because the took advantage of the raised hand of the bride to conceal his face. It was held that the principle that the judge is aided by his life experience in evaluation of 1 2 3

Rajagopal Pillai vs. Pakkaim Ammem, 1968 MLJ 411. Ashok Kumar vs. Usha Kumari, II (1984) DMC 210 Delhi. Naresh Chandra vs. MST. Reshmabai, I (1992) DMC 46 MP.

Practice & Procedure—Proof of marriage

557

evidence referred to by Additional Session Judges does not permit free flight of imagination which is likely to destroy the fabric of due process of law. Even if all that is assumed for argument’s sake it only proves that the parties intended to marry by traditional Hindu form as mentioned in the unsigned and undated stamp paper yet instead of going through the essential ceremonies of Hindu marriage they resorted to exchange of garland in a temple, which does not constitute traditional Hindu marriage. In such circumstances, even if the parties so intended nonapplicant did not attain the status of applicant’s wife as the material or record does not show that their caste custom permits the marriage by exchange of garlands. 1 The position hence emerges that a Gandharva form of marriage is not ipso facto void if it is accompanied with the usual ceremonial rites. Since that is so, it may become necessary to establish, in the event of challenge, that the marriage was accompanied with such rites. 2 Strict proof of marriage and the standard of proof required in matrimonial suits the same standard of proof was not required in proceedings under Section 125 Criminal Procedure Code which were more or less a summary nature. In a case under Section 125 Criminal Procedure Code the Courts should not be too rigid, dogmatic and technical in evaluating the over all evidence on record. On the contrary the whole approach should be pragmatic keeping in view the status of the parties the, social environment in which they live and their illiteracy and backwardness, if any. 3 In proceeding under Section 125 of the Code of Criminal Procedure only this much is to be proved that there has been marriage between the two and not the woman had been putting up with the man as his mere “Mistress”. In proceedings under Section 125 of the Code of Criminal Procedure strict proof of marriage is not required. Strict proof of marriage is required if there be a suit for declaration by the plaintiff that the defendant is not his wife and that she should not claim herself to be wife or if there be proceedings under the Hindu Marriage Act between them. 4 It has been held that evidence to the effect that the couple was living as husband and wife was enough to substantiate the claim for maintenance even in the absence of proof of the performance of 1 2 3 4

Naresh Chandra vs. MST. Reshmabai, I (1992) DMC 46 MP. Dukihia Naik vs. Basanti Dei, II (1994) DMC 431 Orissa. Shiv Narain vs. Dasodiya, II (1994) DMC 554. Vinod Kumari vs. Surinder Singh, 1999(1) HLR 444 P&H.

558

Law of Maintenance

Saptapadi etc. 1 The quantum of proof necessary to establish a marriage is not rigid and that it suffices, so far as the claim of maintenance is concerned, only to establish that the marriage had been gone through. Indeed, even when the marriage is not proved, it is sufficient to establish that the parties were living as husband and wife and were recognised as such by the community where they lived. 2 In another case the evidence of petitioner’s father was that though he himself had not gone with the Barat being busy in marriage of his other son he had entrusted the task of performing petitioner’s marriage to one of his relations and petitioner’s Barat returned back with the bride and thereafter they lived as husband and wife. It was held that the finding of the Revisional Court was perfectly legal as the standard of proof of marriage u/sec. 125 Cr.P.C. is not so high as in case of prosecution u/Sec. 494, 497, or 498 I.P.C. 3 There was a custom in the community of ‘Nata’ marriage. It was then proved by the evidence of the wife that ‘Nata’ marriage was solemnised after performing the required ceremonies. It was, therefore, held that Applicant had successfully established her status as wife. The proceedings under Section 125, Criminal Procedure Code are summary in nature. The object is to provide swift and summary remedy to a neglected wife. In such proceedings, the standard of proof required for a marriage is not so high as is required in connection with the proceedings under the India Penal Code for the offence of Bigamy. 4 The case of the petitioner was that she was residing in the District of Dhanbad with her father and when the application was presented she was residing there with his brother. Therefore, the place of marriage was quite irrelevant and only because she did not state the place where she was married with the opposite party, her story of marriage could not be disbelieved, especially when in course of evidence, the witnesses examined by her had stated that her marriage with the opposite party was performed at the place of her father at village Bhera in the district of Bhagalpur and therefrom she was taken to Mohalla Ishaq-chak of Bhagalpur town where the family of the opposite party was then and even now, was residing. The Principal Judge had disbelieved the evidence of the petitioner, simply because she failed to name the priest and the barber who had participated in the marriage. This can hardly be a 1 2 3

4

Sudama Prasad Pyasi vs. Shail Bala, II (1994) DMC 325 MP. Dukihia Naik vs. Basanti Dei, II (1994) DMC 431 Orissa. Jalandar Gorakh v. Sobhha (1972) 74 Bom LR 755; Sadhu v. Sarathibala , 1985 Cr.LJ. 979 (Cal). Roopsi @ Roop Singh vs. State of Rajasthan, II (1999) DMC 318: 1999(1) HLR 622 Raj.

Practice & Procedure—Proof of marriage

559

ground for disbelieving the factum of marriage, because every bride or bridegroom is not expected to recollect the name of the priest or barber even after lapse of twenty years of the marriage. 1 It is true that under section 50 of the Evidence Act, the conduct of the parties can be taken into account to find out whether they are husband and wife so if a man and woman live together as husband and wife and treated as such by the community and the man treated the woman as his wife then there will be presumption that they are husband and wife but Section 125 debar the husband to second marriage without having divorced the first wife and this presumption can be drawn in the case of first wife and not for the second wife. 2 Regarding the fact that she was not informed that the nonpetitioner had first wife nor had any knowledge when she married will not he in the petitioner as per the intention of the legislature as the provision does not apply to a de facto wife where the marriage is void ab initio. In this case admittedly the non-petitioner has his first wife and the illegitimate son had become major. Therefore it was held that the petitioner was not the wife of the non-petitioner within the meaning and scope of Section 125 and was not entitled to maintenance. 3 Executing a registered document and making a declaration therein that the executants would live as husband and wife would not confer upon them the status of a husband and wife as it is not one of the recognized forms of marriage for a Hindu. Nor is it possible to hold that first respondent marriage the petitioner under the Special Marriage Act. Here execution of a registered document does not amount to valid marriage. When P.W.1’s evidence does not reveal any solemnization of marriage with proper ceremonies and in due form, it is difficult to accept her case that she has the status of a wife. To constitute traditional marriage involving the fire and performing Saptapadi around the sacred fire were considered by the Supreme Court as the basic requirements. But there can be marriages without observing the above two rites if the custom prevailing among the community do not insist upon them. 4 But P.W.1 does not say anything about a customary marriage. She relies only on Agreement and no other evidence to prove the marriage. It was therefore held that the learned Session Judge went wrong in holding that the unequivocal declaration in Agreement is sufficient to uphold the marriage set up by her and she is entitled to maintenance only merely on 1 2 3 4

Veena Devi vs. Ashok Kumar Mandal, I (2001) DMC 177 Patna. Surjeet Kaur vs. Hardam Singh, I (1992) DMC 226 Raj. Surjeet Kaur vs. Hardam Singh, ibid. Sumitra Devi vs. Bhikan Choudhary, AIR 1985 SC 765; relied.

560

Law of Maintenance

the strength of said document. When the wife has no case that she and the petitioner married under the Special Marriage Act and Agreement cannot be construed as proof of a valid marriage between them, a mere declaration in the agreement would not be sufficient to hold that she is the legally wedded wife of the petitioner. That being the position, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure. 1

Proof of no income In one case it was stated that the claimant was living in her matrimonial home and has no source of income. It was held that a negative statement like this does not require any positive statement to prove the same and hence the statement supported by an affidavit already on record could not have been improved in any manner. This situation however was denied by the non-applicant. According to him the applicant was having land in her name on which she was doing cultivation. This fact, the non-applicant claims to have come to his knowledge on the basis of the information given by the applicant herself. There is however nothing on record to justify such a statement. If the applicant owns some land at the place where she is staying at the present it should have been possible for the non-applicant to obtain copies of revenue record from the authorities and file the same in the Court. The revenue record would even disclose the name of person cultivating the land. The non-applicant has however not cared to place this material on record. Under the circumstances, there is nothing to hold that the applicant is having sufficient income to maintain herself and also to meet the legal expenses. In this view of the matter it was held that the applicant is entitled to maintenance and legal expenses under Section 24 of the Hindu Marriage Act. 2

Proper witness A party in proceeding of such a nature is a competent witness and its statement has to be taken on its normal worth and it cannot be rejected merely on the ground that it is a statement of a party to the litigation itself. Similarly, in matrimonial matters, it is only the near relations of the parties or their close friends and associates, who can be expected to be acquainted with the facts relating to the parties and, therefore, their statements also cannot be discarded merely on the ground that they are relations or are friendly to the parties concerned. That

1 2

Punnakkal Sreedharan vs. Vellali Padmini, II (1992) DMC 296 Ker. Uma Devi vs. Ram Avtar Tiweri, II (1985) DMC 398 MP.

Practice & Procedure—Quashing

561

evidence also has to be considered on its normal merits and demerits and it cannot be discarded merely on the ground that it is partisan evidence. 1

Quashing The right of a child to get maintenance is an independent right. A child does not live either with the father or with the mother on its own volition and cannot be deprived of it’s right. 2 In another case the Gujarat High Court has held that child’s right to maintenance is quite independent and is not effected even by the provisions of the Muslim Women (Protection of Divorce) Act. 3 The mere fact that the application for maintenance was filed after filing of the Habeas Corpus petition is not a ground to quash the proceedings under section 125 Cr.P.C. All relevant facts can be suitably decided only in the proceeding under Section 125 Criminal Procedure Code. 4 The position of law cannot be disputed that in exercise of inherent powers under Section 482 this Court can interfere in the impugned order to prevent abuse of process of Court or to secure the ends of justice. Now it is settled that petition under Section 482 is not maintainable against the order passed in revision confirming the order of the Magistrate. Thus, so for as that part of the impugned order is concerned whereby the order of the learned Magistrate was confirmed the petition under Section 482 is not maintenance. Of course, the order through which the amount of maintenance was enhanced can be challenged provided the applicant succeed in showing that there was abuse of the process of the Court or it was necessary for the ends of justice. 5 After the disposal of the criminal writ petition by the Division Bench, the petitioner has filed this petition under Section 482 of the Code of Civil Procedure for the same relief. It was held that the petitioner was taking undue benefit and advantage of the situation that he is appearing in person and is not bound by the procedure of law or any norms. It was further held that this petition was a total abuse of the process of law. The petitioner cannot be allowed to abuse the system indefinitely just because he chooses to appear in person. The petitioner 1 2

3 4 5

Harbans Kaur vs. State of Rajasthan, I (1986) DMC 342 Raj. Jahan Begum vs. Rizvan Ulla, 1979 ACC 3; Balveer Singh vs. Hardeep Singh, 1976 Cr.LJ 1136; relied Abdulla vs. State of Gujarat, AIR 1988 Guj 141. Sardar Anoop Singh vs. State, II (1994) DMC 450 All. Rakesh Kumar Sexena vs. Sadhna Saxena, II (1994) DMC 614 MP.

562

Law of Maintenance

harassed wife for several years by filing multiple proceedings in the Courts and not paid maintenance and circumvented the Court’s order. Any further indulgence to the petitioner would lead to serious miscarriage of justice. Petition was accordingly dismissed with costs of Rs. 10,000/-. The Registry was also directed not to entertain any petition filed by the petitioner in connection with the maintenance unless the costs as directed is paid and a proof of the same is placed on record. 1

Relief in void marriage A person not being a legally married wife of the appellant for the reasons as aforesaid, is not entitled to get any maintenance from the appellant under the Hindu Adoptions & Maintenance Act, 1956. 2 In this case the appellant lived with the respondent for quite some years, as a result of which a child was born and it is obvious that no woman would not surrender to a man completely, for years together, unless, there is some assurance and/or act on the part of the man which may induce the woman at least to believe that she is his wife. In this case, the appellant undoubtedly had lived with the respondent for years to together and it is obvious that for such living with the respondent, he must have induced the respondent by his acts and conduct to believe that she was his wife and accordingly, the respondent surrendered her to the appellant completely. For such immoral activities, the appellant should not be spared altogether, thought the damage that has been caused by the appellant to the respondent both physically and mentally cannot be compensated in any way, it was directed the appellant to pay to the respondent Rs. 30,000/- as damages for his above misdeeds within four months from the date of drawing up of the decree. 3

Remedy of suit In one case, placing reliance upon the provisions of Hindu Adoptions & Maintenance Act, 1956 urged that for enforcing maintenance, the plaintiff might to have filed a suit under the provisions of the said Act in which eventuality the Court would be entitled to exercise its discretion, as envisaged under Section 18 of the Act in fixing the amount of maintenance having regard to the factors mentioned in Section 23. Needless to add that it is the case of the 1 2

3

S.L Sehgal vs. State of Delhi, I (200) DMC 524 Delhi. Ranjit Kumar Bhattacharyya vs. Sabita Bhattacharyya, AIR 1996 Calcutta 301 (DB): 1996 (1) Cal HN 360: 1996 (1) Cal LJ 465: 1996 (1) Hindu LR 520. Ranjit Kumar Bhattacharyya vs. Sabita Bhattacharyya, AIR 1996 Calcutta 301 (DB): 1996 (1) Cal HN 360: 1996 (1) Cal LJ 465: 1996 (1) Hindu LR 520.

Practice & Procedure—Resjudicata

563

plaintiffs/respondents that the suit has not been laid for claiming maintenance under the provisions of Hindu Adoptions & Maintenance Act, 1956. As such there is no question of applicability of Section 23(1) of the Hindu Marriage Act. On a plain reading of the plaint, it can be seen that it is not a suit for maintenance but a pure and simple suit seeking enforcement of the settlement arrived at between plaintiff and the defendant/appellants. It was held that there is no provision in the Hindu Adoptions & Maintenance Act, 1956, which debars filing of such a suit. The Act is not an exhaustive on the law relating to maintenance among Hindus. It is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. 1

Resjudicata The finding of the Civil Court regarding desertion which is binding on the Criminal Court. If it was a case of a decree of annulment of marriage then such decision of the Civil Court per se would be sufficient to disentitle the wife to claim the maintenance. But such was not the position here. The contention in this case was that the Civil Courts’ finding that the wife had deserted her husband and had not joined the matrimonial home on her will and desire is binding on the Criminal Court. It was therefore incumbent on the part of the Courts below to scrutinise the judgment passed in the civil suits and ascertain if any such finding had been recorded therein. A further question which need to be examination in the case is that if such a finding was recorded by the Civil Court whether in the averments made in the petition filed under Section 125, Criminal Procedure Code and in the evidence led in the proceeding there is anything to show that subsequent to the decree of the Civil Court there has been a material change in the fact position or a supervening circumstances has taken place which entitles the wife to maintenance. 2 The Hindu Law as well as the common law cast a duty on the husband to maintain the wife. In India, long before 1955, when the Act was brought into force, such a duty of the husband was given statutory recognition in the India Divorce Act, the Parsi Marriage and Divorce Act and the Special Marriage Act. 3 The amount of maintenance, whether it is fixed by a decree or agreement is liable to be increased or diminished whenever there is a 1

2

3

Ravi Singhal vs. Manali Singhal, II (2000) DMC 732: 1999(1) HLR 648 Delhi. Jasholal Agarwala @ Jain vs. Puspabati Agarwala, II (1994) DMC 169 Orissa. Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.

564

Law of Maintenance

change of circumstances as would justify a change in the rate…..It may be asked why it is that the rate of maintenance, though fixed by agreement may be varied by the Court in a suit brought for that purpose. The answer is that the right to maintenance does not rest on contract, but on the provisions of the Hindu Law which expressly govern the rights and duties of different members of the Hindu family. 1 Thus, the Hindu Law recognised that the right of maintenance was a substantive and continuing right and the quantum and maintenance was variable from time to time. Neither the provisions of Section 11 of the Code of Civil Procedure nor the principles of resjudicata will bar a suit for maintenance on an enhanced rate for a different period under altered circumstances even though on an earlier occasion a maintenance decree had been passed and a certain rate of maintenance had been fixed thereunder. The reason being that such a decree as to the rate of maintenance is not final. 2 It was contended in one case that since orders for maintenance in favour of the wife have been denied under Section 125 Cr.P.C., for the same reasons, pendente lite maintenance under Section 24 of the Hindu Marriage Act should also be quashed. It was held that the both these provisions operate in different spheres and they are independent of each other. 3 During subsistence of the marriage both the husband and wife may have rights and corresponding duties. Wife may be bound to discharge marital obligations. She has the duty to keep company with the husband and submit to other martial obligations to which the husband is entitled. She may be justified in keeping away from the husband only for a valid and justifiable reasons. If she is not so justified, she may not be entitled to claim separate maintenance. During the subsistence of the marriage, refusal by wife to submit to a decree for restitution of conjugal rights may bar her claim for separate maintenance. But after divorce, whatever be the circumstances of divorce, she has no obligation to discharge the marital duties and none of those ground will prevail against her claim. In such cases, in the absence of any disqualification available under law she is entitled to get maintenance. The fact that she had filed an earlier application when the marriage was subsisting and suffering a 1 2 3

Mulla Hindu Law Thirteenth Edition Para 568. Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All. Prem Nath Sarvan vs. Prem Lata Sarvan, II (1986) DMC 40 Delhi: (1986) 2 Hindu LR 91: (1986) 2 Cur LJ (Civ & Cri) 389: 1986 Marriage LJ 541: (1987) 91 Pun LR (D) 24: (1987) 1 Hindu LR 80: 1987 Mat LR 20: (1987) 1 Rec Cri R 362: (1987) 2 Cur CC 729.

Practice & Procedure—Revision

565

dismissal of the same on grounds available only against a wife whose marriage is subsisting is no reason to dismiss her application in the capacity as a divorced wife. The second application in such cases in a different capacity under a distinct and independent cause of action unconnected with the previous one and it cannot be treated as a second application itself. During the subsistence of the marriage, the husband could get the application of the wife dismissed on grounds more than one which are not available to him after divorce. 1 Another authority 2 which was also relied in this decision may also be referred, wherein Bhat, J. observed: “Altogether she has filed two application; but the earlier one was filed when she had the status of the wife and the latter application was filed at a time when she had ceased to be wife and as a divorced wife on the strength of the extended definition of the expression “wife” occurring in Explanation (b) to Section 125(1). Therefore, the present application cannot be treated as a second application at all. There is no incompetency attached to the latter application. So far as the question of finding of fact recorded by the criminal court in proceeding under Section 125 Cr.P.C. is concerned, they are irrelevant for the for the purpose of the petition under Section 24 of the Act. Whatever, has been said in a criminal case about the relationship of the parties is of no consequence. A finding, if at all, given in a criminal case, does not operate as res judicata is a civil suit/petition. 3

Revision The inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision. In this view of the matter the petition under Section 482 Criminal Procedure Code was held not maintainable. 4 The questions whether the appellant No. 1 was the married wife of the respondent and whether the appellant No. 2 was the. legitimate or illegitimate child of the respondent, are pre-eminently questions of fact. The Magistrate after considering the evidence, as adduced by the parties, 1

2 3 4

Mampekkattu Nanu vs. Mampekkat Vasantha, II (1986) DMC 109 Kerala. Nanu vs. Vasantha, 1984 Ker LT 382: 1984 Cri LJ 1206. Harpal Singh vs. Additional Session Judge, 1999(3) CCC 232 (All). Pooran Singh vs. Sabobai, II (1994) DMC 629 MP.

566

Law of Maintenance

held that the appellant No. 1 was not the wife of the respondent. He further held on the basis of the evidence on record that the appellant No. 2 was the illegitimate child of the respondent. Thereafter the learned Judge of the High Court, committed an error in making a re-assessment of the evidence and coming to a finding that the appellant No. 2 was not the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the Magistrate on a question of fact. 1 It was urged that the applicant who was working in the Police Department was later suspended and he was been getting only a suspension allowance of Rs. 11,00/- and now the position is that he has been dismissed and, therefore, he does not get anything by way of salary. However, when the order was passed, these circumstances were not the circumstances which prevailed and the consequent changed circumstances could be matter for appropriate relief to be pleaded by the husband upon proof of certain aspects if the husband needed any notification into the order from the Trial Court. however, neither there are any clear facts nor any proper date not the wife and the daughter have been represented by any one, and it is really unsafe to record any observation on this aspect of the matter, which has been thus advanced. 2

Revision & reconciliation Where revision against rejection of application seeking recovery was also rejected by a non-speaking order, it was held that such summary rejection of revision petition was not proper. 3 When the revision was filed under Section 397, Criminal Procedure Code while it ought to have been filed under Sub-section (4) of Section 19 of the Family Court Act, it was held that the revision cannot be thrown out because out because of mentioning of wrong Section 397, Criminal Procedure Code instead of mentioning Sub-section (4) of Section 19 of Family Courts Act. Due to oversight or for any other reason if present revision has been filed under Section 397, Criminal Procedure Code, it will not affect the maintainability of the revision, inasmuch as the phraseology of Sub-section (4) of Section 19 of the

1

2 3

Pathumma vs. Muhammad, AIR 1986 SC 1436: II (1986) DMC 208 SC. Ramdas vs. SAU. Bayaatal, I (2000) DMC 601 Bombay. Kuldip Kaur vs. Surinder Singh, AIR 1989 SC 232: 1989 CrLJ 794: 1989 SCC (Cr) 171: 1989 CAR 9: 1989 CrLR (SC) 25: 1989 (1) Crimes 1: 1989 MPLJ 1.

Practice & Procedure—Revisional jurisdiction

567

Family Court Act are pari materia to the phraseology used Section 397, Criminal Procedure Code. 1 Procedure adopted by the Revisional court in calling the parties in the chamber and discussing the matter with them was not contemplated in the Code of Criminal Procedure as the entire procedure in respect of grant of maintenance has been exhausted under Section 125, 126, 127 and 128 Criminal Procedure Code. It is further contended by the learned counsel for the applicant that since the revisional order could be challenged before the High Court in the absence of any document in the form of nothing relating to what had transpired in the chamber, it was not possible for the High Court to know as to what had really transpired in the chambers and to what extent the observations of the revisional court in that respect were correct. It is contended that this procedure of the Revisional court resulted in an additional evidence of which the High Court had no record and as such it is not possible either for this court or for the parties to gauge as to what extent that additional evidence was responsible to affect the mind of the revisional court and whether the observation based on that evidence was legally justified or not. This contention of the applicant appears to be correct. Unlike the procedure prescribed under the Hindu Marriage Act. Section 125 and 126, Criminal Procedure Code do not prescribe that the Court should make any effort for reconciliation by talking to the parties. In any case, the Revisional court ought to have recorded a note in detail duly signed by both the parties as to what had transpired in the chambers, if at all this procedure had not been objected by the parties and it could be only thereafter the he could have treated it as evidence in setting aside the order of the Magistrate on the point. 2 In the fitness of the things and the interest of justice it would be expedient that different revisions arising out of the same order, to be heard and decided by the common forum. 3

Revisional jurisdiction Section 397 Criminal Procedure Code empowers the Courts specified therein to call for the records of inferior criminal courts and examine them for the purpose of satisfying themselves as to whether a sentence, finding or order passed therein is legal, correct or proper or whether the proceedings of such inferior Courts are regular. Under the circumstances, it may be examined if the grant of Rs. 300/- per month as 1 2 3

Prem Singh vs. Madhu Bala, II (1995) DMC 603 Rajasthan. Dhiraj Singh vs. Rajeshwari Devi, II (1989) DMC 308 All. Chanda vs. Shankarrao Chiwane, I (1989) DMC 378 Bombay.

568

Law of Maintenance

maintenance was proper. Order fixing proper amount of maintenance is an order passed in exercise of discretion by the trial Magistrate. It necessarily involves some amount of guess-work. As long as the power has been properly exercised by the Magistrate, it will not be within the jurisdiction of the Revisional Court to take a contrary view thereof, only because it feels otherwise. The question that this Court would ask in such a case is whether an amount of Rs. 300/- per month for maintenance of a child living in the city of Bhopal was excessive, so as to be characterised as illegal exercise of discretion ? Taking into consideration the present level of prices of essential commodities and other amenities as also facilities, this Court would think that Rs. 300/- per month cannot by any stretch of imagination be characterised as excessive. What has to be appreciated is that an amount of maintenance granted under Section 125 Criminal Procedure Code is expected to provide for a standard of life, wherein the beneficiary is able to keep his body and soul together. This takes within itself not only the expenses for food and clothing’s, but also expenses involved in meeting other necessities of life. 1 The Court is not expected to adopt a rigid dogmatic or technical stand in such a matter and keep in mind that the provision has a social purpose. In this view of the matter, there was no justification whatsoever for holding that the amount of Rs. 300/- per month was excessive. 2

Settlement There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned, for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicable by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different Courts.3

1 2 3

KU. Saba vs. Syed Mohammad Fazil, I (1991) DMC 262 MP. KU. Saba vs. Syed Mohammad Fazil, ibid. G.V. Rao vs. L.H.V. Prasad, I (2000) DMC 385 SC.

Practice & Procedure—Territorial Jurisdiction

569

Successive petitions Where a suit is dismissed, wholly or partly, under Rule 8 of Orders 9 of the Code of Civil Procedure, the plaintiff shall be precluded from filing a fresh suit in respect of the same causes of action. The question is whether the provisions of Rules 8 and 9 of Order 9 of the Code of Civil Procedure are applicable to petition under the High Marriage Act. Subject to the other provisions of the Hindu Marriage Act and the rules made by the High Court, “all proceedings” under the Hindu Marriage Act, shall be regulated, “as far as may be”, by the Code of Civil Procedure governs the proceedings under the Hindu Marriage Act. The words “as far may be” no doubt, qualify the application of the Code of Civil Procedure to the proceedings under the Hindu Marriage Act. There words merely mean that the provisions of the Code of Civil Procedure, which, by reason of their nature are incapable of application to the proceedings under the Hindu Marriage Act, may not be applicable. For instance the provisions as to the place of suing the institution of suits by presentation of plaints and such other provisions of the Code of Civil Procedure as are inconsistent with provisions of the Hindu Marriage Act, may be not be applicable to matters in respect of which Hindu Marriage Act has different provisions. However there is no provision of the Hindu Marriage Act or Rules made there under, which suggests exclusion of the application of Rules 8 and 9 of Order 9 of the Code of Civil Procedure. Therefore, Rule 9 of Order 9 of the Code of Civil Procedure was held applicable to the proceedings under the Hindu Marriage Act. 1 Every citizen has a right to litigate his cause and seek justice from a Court of law. It is of the essence of this right that it is exercised bona fide. To use this right to seek remedy by misuse, wrong or bed use of the judicial process is, to abuse the process of the Court. In legal thinking abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous vexation or oppressive”. Abuse of process of the Court, however, takes various forms. For instance accruing an injunction to protect one’s possession when he is not in possession, filing successive suits in respect of the same cause, accruing a relief by suppression of facts and so on. 2

Territorial Jurisdiction A specific plea is taken by the husband that he and the appellant lived together at Bangalore, which was specifically denied by the appellant in her objection statement. No point for determination of that

1 2

G. Sarla vs. K. Nalinakshan, I (1992) DMC 360 Ker. G. Sarla vs. K. Nalinakshan, I (1992) DMC 360 Ker.

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Law of Maintenance

pleading was ever raised by the Court below to give jurisdiction under clauses (iv) of Sub-section (1) of Section 31 of the Act. Now apparently the Family Court came to the conclusion that on the date the petition was presented by the husband, the appellant was residing outside the territories to which the Act extended and therefore, it had jurisdiction. In other words, the expression ‘residing outside’ has been construed by it literally, which was held to be not correct. 1 Residing outside the territories to which this Act extends’ occurring in clause (iv) of Sub-section (1) of Section 31 of the Act must be construed to mean residing the intention of permanently residing and has acquired domicile of the other country to which the Act does not extend. If any other, limited meaning is given, then the jurisdiction can be created by including the other party to go on a pleasure trip to a country to which the Act does not apply. It was held 2 that the Family Court should have formulated following two points for determination in order to determine its own jurisdiction with reference to the pleading: (i) Whether or not the appellant-wife and the respondent-husband last lived together within the jurisdiction of the Family Court at Bangalore? and (ii) Whether the appellant-wife was a permanent resident of had acquired the domicile in England at the time petition was presented in the Family Court at Bangalore? It was further held that the word ‘domicile’ was used with the specific intention that the Family Court must go by what domicile in Municipal and International Law means and it should invite evidence from the parties in regard to the two points above as the jurisdiction will depend on the facts to be established on the point formulated. Therefore, the order under appeal was set aside and the matter was remitted to the Family Court to decide the question afresh in the light of the points formulated above and after inviting the evidence to be adduced by the parties in order to decide the jurisdiction of the Family Court. 3 Under Criminal Procedure Code when the revisional jurisdiction is invited by the litigation it is not as a matter of right but it is discretionary power vested in the Court to examine the proceedings of the courts below in certain circumstances. If the petitioner or his advocate is heard and system has developed and we have been following that the advocates are present and the petitioners are present, they are heard in the interest of justice. But there is no obligation on the Court to 1 2 3

Nandita Menon vs. P. Anand Menon, I (1991) DMC 521 Kar. Nandita Menon vs. P. Anand Menon, ibid. Nandita Menon vs. P. Anand Menon, I (1991) DMC 521 Kar.

Practice & Procedure—Transfer of proceedings

571

wait for the party in revisional jurisdiction. The Court itself examine the record and the petitioner cannot be blame as a matter of right of not hearing if he chose to remain absent. It is true that the courts are not supposed to decide the matters in the absence of the parties or their advocates, but then it is also equally true that the advocates who themselves filed the petition and especially when they are appearing before the Revisional Court it is desirable that some responsibility is attached to them also. 1 Under Section 18 of the Hindu Adoptions & Maintenance Act, the petitioner is entitled to maintenance provided she first proved that she was treated by the husband with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him. The various acts of cruelty and desertion in the instant case took place at Kalyan and, therefore, it was held that the cause of action or any part thereof accrued in Kalyan and not in Bombay. 2

Transfer of proceedings The meaning and purpose of Section 21A of the Hindu Marriage Act is clearly to prevent the catastrophic possibility of two different Courts passing conflicting judgments and differing decrees, one granting divorce and another denying it. In order to avert this danger, Section 21A of the Hindu Marriage Act takes away discretion from the Court and by use of the word ‘shall’ mandatorily directs the appropriate Court or Government to consolidate for trial the two applications filed separately by the husband and wife seeking divorce or judicial separation by transferring the application filed later in point of time to the Court where a similar first application is filed and pending. The aforesaid Section 21A of the Hindu Marriage Act is concerned only with two of the several situations that may call for transfers. Dealing with that situation Section 21A of the Hindu Marriage Act provide more for the performance of an uniform duty by the Court and almost for an involuntary joint trial without any reference to the will of the parties. Section 21A of the Hindu Marriage Act has nothing to do with the power to be exercised by the Court on the basis of individual cases. Section 21A of the Hindu Marriage Act, proceeding on the basis of above policy does not, therefore, leave any discretion either to the Court or to the parties in the matter of transfer, not even in the matter of deciding which application should be transferred to which Court. Legislature has settled all these 1

2

Hem Chandra Shridhar vs. Hemangi Hemchandra Nair, I (1983) DMC 1 Bombay. Neeta Deelip Kumar Suchak vs. Deelip Kumar Mohan Lal Suchak, II (1984) DMC 200 Bombay: AIR 1984 Bom 235.

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Law of Maintenance

questions and decided every essential detail. But outside that limited area there can be several situation calling for transfer with or without joint trial. Those situations are still left to be dealt with by Section 24 of the C.P.C. They are still left to be governed by the general provisions of Section 24 of the C.P.C. Appropriately under Section 24 of C.P.C., what is given to the Court to deal with those situation is a discretionary power enabling the High Courts and the District Court to transfer cases on individual basis. There is wide discretion available to the Courts under Section 24 of C.P.C. The subject matter of these two statutory provisions and the area of their operation and the purpose for which they are intended to be used, cannot, therefore, be said to be the same. 1 The purpose of Section 24 of C.P.C. is merely to confer on the Court a discretionary power. A Court acting under Section 24 of the C.P.C. may or may not in its judicial discretion transfer a particular subsequent application to be tried along with a particular earlier application. Now Section 21A of the Hindu Marriage Act substitutes a mandatory duty in the place of this discretionary power denying discretion altogether to the Court to a situation to which 21A of the Hindu Marriage Act applies. It is for this reason that Section 21-A is enacted. By confining Section 21A to that area alone that Section is rendered neither meaningless nor superfluous. Outside the situation covered by 21A of the Hindu Marriage Act, there is therefore no reason to hold that the discretionary power of transfer given to the High Court and the District Court under Section 24 of the C.P.C. is altogether abrogated in the matter of transfer of matrimonial cause under the Hindu Marriage Act. 2 Section 21 of C.P.C. is a remedial provision. Such a provision should not be nullified by interpretation except for compelling reason of language or purposes of the Statute. 3 In one case it was contended by the petitioner that on the previous occasions when the petitioner went to attend the Court on the dates of hearing, the opposite party with her father and some anti-social elements threatened him with consequences, if he again attended the Court to contest the case. It was held that the provisions of Section 407, Criminal Procedure Code can not be applied on such a ground. If really any such incident takes place, the remedy lies elsewhere. Transfer of the case to another place on this ground cannot be called for or justified.

1 2 3

T. Ramadevi vs. T.V. Subrahmanyam, I (1982) DMC 113 AP. T. Ramadevi vs. T.V. Subrahmanyam, I (1982) DMC 113 AP. T. Ramadevi vs. T.V. Subrahmanyam, ibid.

Practice & Procedure—Verification of affidavit

573

Such threat has nothing to do with the venue of the proceeding and may occur anywhere irrespective of the place where the Court is situated and it cannot be made a ground for transfer. It was also held that such a story unaccompanied by any complaint of Diary while original to have been lodged with the police by the petitioner loses its credibility. 1 It was also the case of the petitioners that the petitioner No. 1 being employed at Bhotan has to come long way in order to attend the Court on the dates of hearing. This contention was held to be not very impressive for the reason that in any event he had to come to Jalpaiguri from the place of his work. Judicial notice was taken of the fact that the Cooch Behar district is contiguous to the Jalpaiguri district and the distance between Jalpaiguri Court and Cooch Behar Court can be covered by only few hours journey by bus. It was held that it should not be forgotten that the other party was the wife of the petitioner and was a female person. The amended Section 126, Criminal Procedure Code has bestowed upon her the right of having the venue of the proceeding in the District in which she presently resides. To transfer the case to a Court of Jalpaiguri district will be to deprive her of this privilege frustrating the intention of the Legislature. If comfort is provided to the male party, that will be at the cost of the female party’s convenience. If he is allowed to have the Court in the vicinity of his house, the member of the weaker section will be forced to travel a longer distance every time there is a date for hearing. Moreover, it should be borne in mind that the expression used in Section 407(1)(c) of the Code, namely, that the order “will tend to the general convenience of the parties or witnesses” is designed to draw a line between the inconvenience affecting a group of persons in general and that affecting a single person in individual capacity. In this case the wife is the 1 st party at whose instance the proceeding has been started and she is supposed to have the burden of proving her case with the help of witnesses hailing from her locality. From this point of view also the language of the law was held to be in her favour. 2

Verification of affidavit The wife in her application for pendente lite maintenance has stated that the husband “is a medical practitioner and has got a lucrative practice and earns at least Rs. 8,000/- per month” and that he also “own a fairly big house at Calcutta” which fetches and is capable of fetching 1

2

Subodh CH. Majumder vs. Mina Majumder (Misra), I (2000) DMC 676 Calcutta. Subodh CH. Majumder vs. Mina Majumder (Misra), I (2000) DMC 676 Calcutta.

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Law of Maintenance

decent income”. But in the affidavit in support this application all the statements in the application have been affirmed as “true to the best of my knowledge and belief” without specifying in any way which statement are true to her knowledge and which are true to her belief and also without stating starting the grounds of such belief. Under the provisions of Order 19, Rule 3(1) of the Code of Civil Procedure, in affidavits relating to interlocutory applications, statements of the deponent’s belief may be admitted, provided however, “the grounds thereof are stated”. It was therefore held that the statements in the affidavit of the wife could not, in law, be taken into consideration. 1

1

Ashit Mukherjee vs. Susmita Mukherjee, II (1986) DMC 254 Calcutta.

Scope of jurisdiction—Alternative forums

575

Chapter 13

Scope of jurisdiction SYNOPSIS Introduction....................................575 Alternative forums..........................575 Appropriate forum .........................578 Court of record ..............................579 Family Court ..................................579 Finding on legitimacy ....................579

Inherent powers ............................. 580 Pecuniary jurisdiction ................... 581 Revisional jurisdiction ................... 582 Revision and merger ...................... 582 Summary jurisdiction .................... 585 Territorial Jurisdiction .................. 586

Introduction The right to seek maintenance flows from various legislative provisions as also, in some cases under the ancient Hindu law. Similarly there are various courts/forums which are entitled to deal with different situations and petitions. This chapter deals with such forums and the precedents which have resolved the questions relating to the scope of jurisdictions of these forums.

Alternative forums The amount awarded under Section 125 of the Cr.P.C. for maintenance is adjustable against the amount awarded in the matrimonial proceedings and is not to be given over and above the same. 1 The main aim of Section 125 Criminal Procedure Code is that the women are not thrown out to the vagrancy as there is no maintenance to them. To safeguard their right to live by getting maintenance. Section 125 Criminal Procedure Code, is provided. Under Section 125 Criminal Procedure Code, the women can approach the Court, where she is living whereas that is not the position under the Hindu Marriage Act. Considering the proceeding under Section 488 Old Criminal Procedure Code (equivalent to Section 125 of the present Criminal Procedure Code) Chinnappa Reddy, J. held 2 as under:

1

2

Sudeep Chaudhary vs. Radha Chaudhary, AIR 1999 SC 536: 1999 CrLJ 466: 1998 SCC (Cr) 160: 1999(5) Bom CR 813: 1998 CrLR (SC) 262. S.Seshamma, In re:, 1968 (2) An WR 98

576

Law of Maintenance

“The object of Section 488, Criminal Procedure Code is the prevention of vagrancy and to provide neglected wives and children a cheap and speedy remedy. This remedy is irrespective of other remedies such neglect wives and children may have under their personal law or under any statute. The existence of other mere efficacious remedy is no bar to the maintainability of a petition under Section 488, Criminal Procedure Code. Indeed it is irrelevant. Similarly the pendency of other proceedings where the status of the parties is in question of where a husband seeks some matrimonial relief is no bar to the maintainability of a petition under Section 488. Criminal Procedure Code. Nor can the proceedings under Section 488 Criminal Procedure Code be made to await the result of such other proceedings. Otherwise the object of Section 488, Criminal Procedure Code providing for a cheap and speedy remedy will be frustrated. However, where a competent Civil Court declares the rights of the parties, the Magistrate passing an order under Section 488, Criminal Procedure Code is empowered to cancel or suitably very the order. This is provided under Section 489(2), Criminal Procedure Code and this provision amply protects the rights of the parties as may ultimately be determined by the Civil Court.” The sum and substance of the above judgment is that the right of the wife under Section 125 Criminal Procedure Code is independent of the right provided under the Hindu Marriage Act and where the maintenance is awarded under Section 125 Criminal Procedure Code, and again Civil Court also awards maintenance under the Hindu Marriage Act and Maintenance & Guardianship Act, the husband can file a petition under Section 127 Criminal Procedure Code to alter the maintenance granted under Section 125 Criminal Procedure Code. 1 Ramaswamy, J (as he then was) has held 2 as under: “The remedies under Section 24 of the Hindu Marriage Act and under Section 125 Criminal Procedure Code are not alternative but they are concurrent and optional to the party entitled to make avail of. They are remedial measures intended to alleviate hardship that may be caused to either spouse i.e., the application under Section 125 Criminal Procedure Code or the respondent under Section 24 of the Hindu Marriage Act. Therefore, the mere possibility of availability of the remedy under Section 24 of the Hindu Marriage Act does not take away the power and jurisdiction of the Court under Section 125 Criminal Procedure Code to grant relief. Therefore, the contention that the Criminal Court has no jurisdiction when an application under Section 13 of 1 2

G. Sundara Babu vs. Udaya Bhanu, II (1991) DMC 211 AP. Ajjarapu Surya Sri Rama-Chandra Murthy vs. Ajjarapu Tejo Satyasathi mani 1983 (2) APLJ 374 (HC)

Scope of jurisdiction—Alternative forums

577

the Hindu Marriage Act has been filed to grant maintenance to the Ist respondent is devoid of substance and accordingly it is rejected.” Similarly P. Kodandaramayya, J 1. has held that the order of a Magistrate granting maintenance to wife under Section 125 Criminal Procedure Code is not a bar for ordering interim maintenance to her pending the proceedings under Section 24 by the husband. However, it was observed that it is open to the petitioner therein to apply and satisfy the Magistrate that the order passed by him may be rescinded, in view of the order passed by the Civil Court. The husband had filed the suit for divorce and, as such, under Section 24 of the Act, a party who is not in position to maintain herself or himself, may file an application under Section 24 of the Act. It is for the Court to consider on the evidence on record as to whether he or she is in a position to maintain herself or himself. In such view of the matter, the Court below was held to have acted with material irregularity by refusing monthly allowance to the petitioner solely on the ground that she lost the proceeding under Section 125 Criminal Procedure Code. 2 There is no inconsistency between the Maintenance Act and Section 488, Criminal Procedure Code. Both can stand together. The Maintenance Act is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, in so far as it dealt with the maintenance of children was in any way inconsistent with Section 488, Criminal Procedure Code. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. 3 When by Court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events remains within the 1 2

3

in Varda Kota Satyanarayana vs. Varada Parvathi 1986 (1) ALT 201. Abha Prasad @ Abha Sharma vs. Bimal Kishore Prasad, II (1995) DMC 458 Patna. Nanak Chand vs. Chandra Kishore Aggarwal, 1970 CrLJ 522: 1970 AIR (SC) 446: 1970(1) SCR 565: 1969(3) SCC 802: 1969 All WR (HC) 711: 1970 Mad LJ (Cri) 94.

578

Law of Maintenance

jurisdiction of that Court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The Court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation interchangeability cannot be permitted so as to destroy the distinction on the subject of maintenance. 1 Relief to the wife may also be due under Section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features: (i) the provision applies to all and not only to Hindus; and (ii) maintenance allowance cannot exceed a sum of Rs. 500/-per mensem. But this is a measure in the alternative to provide destitute wives. 2

Appropriate forum The filing of the petition under Section 125 of the Code of Criminal Procedure does not debar the Matrimonial Court, from fixing maintenance pendente lite under Section 24 of the Act. If the Court fixes maintenance under Section 125 of the Code of Criminal Procedure, the husband will be entitled to claim adjustment for the maintenance paid pendente lite under Section 24 of the Act. The order passed by the Matrimonial Court under Section 24 of the Act cannot be rendered nugatory because no proceeding under the Act was pending. The order under Section 24 of the Act can be enforced like a decree. 3 The Hindu Adoptions & Maintenance Act provides for a right to claim maintenance to the wife under Section 18. The remedy under Section 125 Criminal Procedure Code is summary in nature and quicker than the one provided under the Act. Therefore, merely because the party can approach the civil court, the same is not a bar to claim maintenance 1

2 3

Chand Dhawan vs. Jawaharlal Dhawan, 1993 CrLJ 2930: 1993 (3) SCC 406. Chand Dhawan vs. Jawaharlal Dhawan, ibid. Om Prakash vs. Chander Wati @ Chamderpali, I (1991) DMC 352 P&H.

Scope of jurisdiction—Finding on legitimacy

579

under Section 125 Criminal Procedure Code. But however, if a party approaches the civil court after maintenance is granted under Section 125 Criminal Procedure Code and gets the decree for maintenance then the decree of the civil court prevails. Therefore, it was held that even in the case of negligence in payment of maintenance as per the terms of the agreement between the parties, the wife can claim maintenance under Section 125 Criminal Procedure Code even though she has a right to approach the civil court for grant of maintenance. 1

Court of record The High Courts in India being superior Courts of record with original, appellate and supervisory jurisdiction, subject to the appellate jurisdiction of the Supreme Court, have unlimited jurisdiction to interpret as well as to determine authoritatively the law, codified law or uncodified law as well as to declare the law and to apply the relevant law to the facts of the case. The High Courts are Court of unlimited jurisdiction and repository of all judicial power under the Constitution but subject to any other exception specifically provided by the Constitution. Being Courts of records the High Courts have jurisdiction to determine their own powers as well. Being expositor of law and the intent and will of the Parliament the legislature and the framers of the Constitution under the provisions of the Constitution of India as well, the framers of the Constitution have assigned a new role to the Constitutional Courts i.e. Courts constituted under the Constitution, to ensure the rule of law. 2

Family Court The claim for maintenance includes claim for marriage expenses. Explanation (f) of Section 7 of the Family Courts Act though does not deal with marriage expenses, the word ‘maintenance’ there takes in marriage expenses of the unmarried daughter. Hence, the suit is exclusively triable by the Family Court and not by a Civil Court. 3

Finding on legitimacy On the sole ground that the child had been born in about 7 months’ time after the marriage it cannot be concluded that the child should have been conceived even before the respondent had consummated the marriage. Giving birth to a viable child after 28 weeks’ duration of pregnancy is not biologically an improbable or impossible 1

2 3

Chimata Nigarathnamma vs. Chimta Nathaniel, I (1991) DMC 459 AP. Rahmat Ullah vs. State of U.P., 1994 (2) DMC 64 All. Sivadasan vs. Santha, I (2000) DMC 198 Kerala.

580

Law of Maintenance

event. The proper course for the High Court, even if it is entitled to interfere with the concurrent findings of the Courts below in exercise of its powers under S. 482, Cr.P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings under S. 125, Cr. P.C., it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. The High Court was, therefore, held to be in error in quashing the order of maintenance in favour of the child. 1

Inherent powers It is not for High Court to go through the whole case over again or to find out whether it could interfere with the findings on a different approach to the question which this Court may choose to make. Such an exercise would be uncalled for and beyond the scope of the power under Section 482. The Court should guard against such a situation and should not be tempted to interfere merely because, if the court has occasion to go through the evidence afresh perhaps it may choose to take a view different from that taken by the court below. 2 Where right of maintenance to a woman is denied on untenable grounds, quashing such an order can be considered the object of securing the ends of justice within the meaning of Section 482 of Criminal Procedure Code. 3 The wife in order to claim maintenance from her husband has to prove that her husband, having sufficient means, has neglected or refused to maintain her and further that she was unable to maintain herself. The ingredients of Section 125(1) Criminal Procedure Code, which the wife has to prove is the neglect or refusal on the part of the husband to maintain her and further that she is unable to maintain herself. In the instant case, there is dispute regarding the fact the petitioner/husband has neglected or refused to maintain the respondent/wife. There is also dispute regarding the fact that the respondent/wife is unable to maintain herself. Till the respondent/wife proves these ingredients against the husband and shows that she has legal and justifiable reasons for living separately from her husband and that she is unable to unable to maintain 1 2 3

Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049. M. Chandran vs. B. Jagadamma, II (1982) DMC 174 Kerala. Vemulapalli Rajanikumar vs. Vemulapalli Sarath Babu, II (2000) DMC 199 AP.

Scope of jurisdiction—Pecuniary jurisdiction

581

herself, the petitioner/husband would be required to pay maintenance to her till the reasons for separate living disappear and the husband is willing to keep his wife with him. The ingredients of Section 125(1) Criminal Procedure Code are dependents upon proof of the allegations contained in the petition. Undoubtedly, Section 397(3) Criminal Procedure Code bars a second revision filed by the same person, who has already availed the remedy of a revision before the Sessions Judge. There is also no dispute about the fact that the bar of Section 397(3) Criminal Procedure Code cannot be overcome merely by filling an application under Section 482 Criminal Procedure Code if in substance and reality the intention of the party is to file a second revision. But in case the learned Additional Session Judge while dealing with the revision has not decided the revision according to law, then High Court can certainly intervene under its inherent powers under Section 482 Criminal Procedure Code. 1

Pecuniary jurisdiction Although what the section 125 of Criminal Procedure Code, 1973 plainly means is that the Court cannot grant more than Rs. 500/-for each one of the claimants. “In the whole” in the context means taking all the items of maintenance together, not all the members of the family put together. 2 If a woman has a dozen children and if the man neglects the whole lot and, in his addiction to a fresh mistress, neglects even his parents and all these members of the family seek maintenance in one petition against the delinquent respondent, can it be that the Court cannot award more than Rs. 500/- for all of them together? On the other hand if each filed a separate petition there would be a maximum of Rs. 500/each awarded by the Court. Therefore, this obvious jurisdictional inequity was refused to be read in the provision by reading a limitation of Rs. 500/- although what the section plainly means is that the Court cannot grant more than Rs. 500/- for each of the claimants. ‘In the whole’ in the context means taking all the items of maintenance together, not all the members of the family put together. This interpretation accords with social justice and semantics and, more than all, is obvious. 3

1 2

3

Kulwant Singh Bhullar vs. Sukhwant Kaur, 1999(1) HLR 155 P&H. Captain Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ 3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978 SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1. Captain Ramesh Chander Kaushal vs. Veena Kaushal, ibid.

582

Law of Maintenance

Revisional jurisdiction In case of dispute about valid marriage of claimant and legitimacy of child the High Court in exercise of revisional jurisdiction, substituted its own finding in substitution of finding of Magistrate. It was held that such inference with finding of fact was not proper. 1 Section 397 Criminal Procedure Code empowers the Courts specified therein to call for the records of inferior criminal courts and examine them for the purpose of satisfying themselves as to whether a sentence, finding or order passed therein is legal, correct or proper or whether the proceedings of such inferior Courts are regular. Under the circumstances, it may be examined if the grant of Rs. 300/- per month as maintenance was proper. Order fixing proper amount of maintenance is an order passed in exercise of discretion by the trial Magistrate. It necessarily involves some amount of guess-work. As long as the power has been properly exercised by the Magistrate, it will not be within the jurisdiction of the Revisional Court to take a contrary view thereof, only because it feels otherwise. 2 The question that High Court would ask in such a case is whether an amount of Rs. 300/- per month for maintenance of a child living in the city of Bhopal was excessive, so as to be characterised as illegal exercise of discretion ? Taking into consideration the present level of prices of essential commodities and other amenities as also facilities, it was held that Rs. 300/- per month cannot by any stretch of imagination be characterised as excessive. What has to be appreciated is that an amount of maintenance granted under Section 125 Criminal Procedure Code is expected to provide for a standard of life, wherein the beneficiary is able to keep his body and soul together. This takes within itself not only the expenses for food and clothing’s, but also expenses involved in meeting other necessities of life. The Court is not expected to adopt a rigid dogmatic or technical stand in such a matter and keep in mind that the provision has a social purpose. 3

Revision and merger Section 397, Criminal Procedure Code vests a right of revision in the husband as also in the wife against the order granting or refusing maintenance apart from their right to seek enhancement or reduction of 1

2 3

Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986 CrLJ 1070: 1986 SCC (Cr) 212: 1986 CrLR (SC) 223: 1986 Guj LH 788: 1986 All WC 732. KU. Saba vs. Syed Mohammad Fazil, I (1991) DMC 262 MP. KU. Saba vs. Syed Mohammad Fazil, ibid.

Scope of jurisdiction—Revision and merger

583

the maintenance, if awarded by the trial Court. Further, Section 397, Criminal Procedure Code provides concurrent jurisdiction in High Court as well as in the Session Court. It is in view of this provision of concurrent jurisdiction, the petitioners moved the Session Judge for enhancement of the maintenance while the husband approached this Court challenging the very award of maintenance. This Court dismissed the revision filed by the husband through the order quoted supra. In view of this order of dismissal the learned Session Judge held that the order of the Magistrate got merged in the order of this Court and therefore he could not pass an order contrary to the orders of this Court. Accordingly the revision filed by the petitioners was dismissed. No doubt, since two revisions were filed one before this Court and the other before the Session Judge they ought to have been disposed to together by the superior court after calling for the papers in the case pending before the lower Court. For some or other reason that did not take place in the instant matter. 1 The scope and applicability of the doctrine of merger is laid down in a nut-shell by the Supreme Court 2 thus: “The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fashion or merger of two orders irrespective of the subject-matter of the appellate or Revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends upon the nature of the appellate or Revisional order in each case and the scope of the statutory provisions conferring the appellate of Revisional jurisdiction.” In another case 3 the conviction of the accused when challenged in appeal was affirmed by the High Court. Therefore, he could not file any further revision against his conviction or for reduction of sentence. However, as soon as the State applied for enhancement of sentence by way of a revision, the accused becomes entitled under Section 439(6). Criminal Procedure Code again challenge his conviction. The Supreme Court has categorically held that the State cannot contend that the accused cannot challenge the very conviction in the revision filed by the State on the ground that the appeal against his conviction filed earlier was dismissed.

1 2 3

Anwar Jahan vs. Mohammad Osman Ali, I (1991) DMC 356 AP. State of Madras vs. Madurai Mills, AIR 1967 SC 681. U.J.S. Chopra vs. State of Bombay, AIR 1955 SC 633.

584

Law of Maintenance

A case before AP High Court came up for consideration. That was a case where on an earlier occasion the Director of settlements dismissed a petition filed for condition of delay in filing a revision against the grant of patta by the Settlement Officer. Later, when the Director sought to exercise his suo motu powers of revision, the objection was that he could not do so since earlier he dismissed the petition for the very condonation of delay in filing the revision, which had the effect of dismissing the revision itself. Considering this question, a Division Bench of the Court held that in the facts and circumstances of that case there was no room either for saying that he has exercised once his powers of revision, nor can it be said that the order of Settlement Officer got merged with the order of the Director of Settlements and therefore, there was no order of Settlement Officer which may be available for being revised on the second occasion. 1 In one case the husband had assailed the very grant of maintenance. It did not seem to have been contended that the quantum of maintenance awarded was excessive and calls for lowering down, much less there is any reference to the question of quantum of maintenance. Thus, the question regarding the sufficiency or otherwise of the quantum of maintenance awarded has not been adverted to by High Court. What all High Court held was that there was no reason to interfere with the grant of maintenance. Therefore, quantum of maintenance awarded is not an aspect that was decided by this Court for purposes of holding that this Court had refused to interfere with the quantum the thereby the revision filed by the petitioners for enhancement of the maintenance awarded gets dislodged. To the extent of grant of maintenance, no doubt, this Court gave a categorical finding that the wife and daughter (the petitioners herein) were entitled to the maintenance. But is so far as quantum of maintenance is concerned, neither it was challenged before the Court not there was any finding in either way, viz. lowering down or refusing to lower down. The subject matter as also nature of the Revisional order are thus distinct and different from the subject-matter of the revision filed by the petitioners for enhancement of the maintenance awarded. Accordingly, it cannot be said that the quantum of maintenance awarded by the Magistrate was the subject-matter in the revisional order nor the nature of revisional order passed by the Court related to the quantum of maintenance so as to enable the husband to invoke the doctrine of merger to dislodge the revision filed by the wife before the Sessions Judge. 2

1

2

Mirza Muzumdar Hussain vs. Dodla Bhaskara Reddy, (1987) 2 Andh LT 383. Anwar Jahan vs. Mohammad Osman Ali, I (1991) DMC 356 AP.

Scope of jurisdiction—Summary jurisdiction

585

Summary jurisdiction In a case for maintenance under Section 125 of the Criminal Procedure Code, it is not necessary that the marriage is established beyond reasonable doubt, it is enough for the Magistrate that prima facie case is made out, in order to afford the immediate and speedy relief of the suffering party, under Section 125 Criminal Procedure Code, while leaving open to the aggrieved party the right to agitate his plea before the civil court, if he is so advised. 1 In a proceeding under Section 125 of the Criminal Procedure Code (Chapter IX) the Court does not determine the status of parties and it does not given any finding having the value of res judicate in respect of the parentage or matrimonial status. The provisions of the Chapter are meant to preserve peace and avoid strife in society by providing immediate relief to parties who are neglected, and who otherwise would resort to vagrancy, mendacity or other anti-social activities. In a proceeding under Chapter IX, Criminal Procedure Code, the role of the Magistrate is only to find out whether there is a prima facie case in the claim of the person approaching the court for an immediate relief. He has no time, no jurisdiction to embark upon an elaborate enquiry. 2 The Code by virtue of Section 125 provides a summary remedy for awarding maintenance to all neglected wives irrespective of castes, creed, community or religion to which they belonged. It carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the Section. It provides a summary procedure, its findings are not final and the parties can agitate their rights in Civil Court. 3 The liability imposed by Section 125 to maintain relatives, detailed in the provision who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. The forerunners of present Section 125 are Section 488, 489 and 490 of the Code of Criminal Procedure, 1898. Said provisions constituted one family. In the words of Sir James Fitzstephen they provided a more of preventing vagrancy, or at least preventing its consequences. They are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his

1 2 3

Muniandi vs. Jothi, I (1987) DMC 88 Madras. K.M.S. Mani vs. Tamizharasi, I (1988) DMC 275 Madras. Narayan Hadipa vs. Jayasudha Nagabansha @ Hadipa, II (1999) DMC 639 Orissa.

586

Law of Maintenance

wife and children. Objects of Section 125 is to provide a simple, speedy remedy but limited relief. It seeks to ensure that the neglected wife and children are not left beggared and destitute on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian Social Life. It is the duty of the Court to interpret provisions of Chapter IX of the Code in such a way that construction placed on them would not alter the very object of the legislation. 1

Territorial Jurisdiction When the statute nowhere dictates that residence must always be permanent, it can not deemed to be so. If it were meant to be so, nothing prevented the legislature to spell out its intention by giving a meaning to the expression ‘resides or resided’ to the effect that such residence was to be permanent character and not of a temporary nature. There is, however, a distinction between the expression ‘reside’ and ‘stay’. The expression ‘reside’ implies something more than ‘stay’. The expression ‘stay’ and means remaining at a place for a temporary period. The expression ‘reside’ according to Oxford dictionary means, “to dwell permanently or for a considerable time, to have one’s settled or usual abode; to live in or at particular place”. A person can be taken to reside at a place even if lives in a rented house, if such residence is not for a purely temporary period. The real test is whether he has a permanent place of living to which he intends to go back. If a person has no permanent place of living, it can safely be inferred that the place where he lives is the place where the resides. 2 According to Section 126(1)(b) of the Criminal Procedure Code territorial jurisdiction of the Court may be determined by the present residence of the wife as given in her petition under Section 125, Criminal Procedure Code, irrespective of where the cause of action might have arisen. In that view of matter, transfer of the case to another Court on this ground will not be permissible. 3 Where the respondents did not raise the objection regarding jurisdiction in the Trial Court and took the chance of getting order in their favour, it cannot be said that there was failure of justice or the case of the respondent had been prejudiced because the case was tried by the 1

2 3

Narayan Hadipa vs. Jayasudha Nagabansha @ Hadipa, II (1999) DMC 639 Orissa. Dhiren Kumar vs. Rebati Das Mallik, I (1987) DMC 1 Orissa. Subodh CH. Majumder vs. Mina Majumder (Misra), I (2000) DMC 676 Calcutta.

Scope of jurisdiction—Territorial Jurisdiction

587

Magistrate exercising power in that place. They should have raised the objection at the early stage of the proceedings. Failure to do so proves conclusively that there was no prejudice or failure of justice. 1

1

Santi Seetharamayya vs. Santi Yegna Narayana Murthy, II (1999) DMC 329 AP.

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Chapter 14

Miscellaneous entitlement SYNOPSIS Introduction....................................588 Compensatory cost .........................588 Delivery expenses...........................589 Expenses after conclusion of proceedings ....................................589

Litigation expenses ........................ 589 Necessary expenses of the proceedings ....................................................... 593 Travelling expenses ....................... 594 Written Application ....................... 596

Introduction In addition to the maintenance, a party is also entitled to various other compensations or payments which do not strictly fall with in the term maintenance but are none the less associated to the grant of maintenance. This chapter deals with such entitlements.

Compensatory cost The petitioner in one case had to attend the Ajmer Court on every date. she was in service and therefore she had to take leave. Not only this she had to accompany her brother and thereby had to spend lot of money. Under these circumstances, it was directed to the non-petitioner to pay to the petitioner Rs. 300/- on each date of hearing when she comes to attend the Court. In addition to this following directions were also given to enforce this payment: ‘The respondent will pay the arrears to the petitioner also at the aforesaid rate. It there is any direction by the Trial Court in this respect the same is modified to this extent. If the respondent has paid any amount to the petitioner for expenses of coming and going and of stay at Ajmer, they shall be deducted from the arrears. The respondent will pay arrears to the petitioners within a period of three months from today. The respondent is further directed to give an undertaking before the Family Court that he will not harass in any way to the petitioner when the she comes to Ajmer to attend the Family Court. The Judge, Family Court is also directed to see that the petitioner is not in any way harassed by the respondent and his friends or colleagues.’ 1 1

Laxmi vs. Eshwar Maudiyani, II (1992) DMC 59 Raj.

Miscellaneous entitlement—Litigation expenses

589

Delivery expenses A child was delivered by the wife in city clinic. However, there was no evidence and it could not be there, as to how much expenses was incurred by the petitioner on the delivery. Since there was no indication of expenses it was held to be not possible to award the amount claimed. Considering the fact that the delivery was in a fairly posh clinic, the minimum expense that would have to be incurred is Rs. 1000/-. Accordingly, the petitioner was held to be entitled to further sum of Rs. 1000/- to reimburse her for the delivery expenses which she must have incurred. 1

Expenses after conclusion of proceedings The whole object of the provision in Section 36 is that the wife should not be at a disadvantage in contesting the proceeding as against her husband but should be put in a position in which she would be able to contest the proceedings effectively, or to secure “that the wife should be heard in the cause”. Having regard to that object, no order for payment of the expenses of the proceeding can be made under Section 36, once the proceeding itself has come to en end, for it cannot thereafter subserve the purpose for which it was intended viz., to enable the wife to contest the proceeding. 2

Litigation expenses If the Legislature intended that the spouse whose income is not sufficient to pay maintenance to the other should not be asked to pay the same, there is no reason why the Legislature should think that that spouse should be obliged to pay the expenses of the proceeding to the other spouse even if the former has no means to pay the same. While ordering payment of the expenses of the proceeding the Court has to take into consideration the income of the respondent i.e. the spouse from whom such expenses are sought. 3 In another case both the learned attorney/counsel for the parties admitted that income of both the spouse was more than Rs. 5000/-. When the husband filed the appeal, wife was required to be summoned for reconciliation proceedings. For that purpose, the Division Bench passed an order that the husband should pay Rs. 5000/- to her to come to 1

2

3

Vibha Saroop Nee @ Vibha Sexena vs. Nigmendra Saroop, I (1983) DMC 30 Delhi. Louise Dinshaw Cambata vs. Dinshaw S. Cambata, AIR 1974 Bombay 82: 75 Bom LR 532: 1973 Mah LH 1051. Gangu Pundlik Waghmare vs. Pundlik Maroti Waghmare, AIR 1979 Bom 264: 1979 Mah LJ 555: 1979 Mat LR 337.

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Chandigarh, but later on when he wanted to have refund of this amount, his petition was dismissed holding that he was bound to pay the litigation expenses to his wife. It was held that no doubt, in the High Court wife had not filed any application under Section 24 of the Act, but since the husband had dragged her into this litigation, it was thought proper that he should pay at least Rs. 5000/- to the wife as litigation expenses as this was an additional burden of her income. 1 The same High Court has however taken a somewhat different view in respect of original proceedings. It has held that: ‘If the income of the spouse against whom litigation has been commenced is sufficient to incur the expenses of legal proceedings, such a spouse cannot claim litigation expenses on the ground that the litigation has been foisted upon such spouse. The amounts to pre-judging the matter. Until and unless the litigation has been finally decided and it is found as a fact on the basis of evidence led before the court that such a spouse has been dragged into litigation made fide, no such conclusion can be drawn simply because one of the spouse has come to the Court and filed divorce petition. Assuming that the case of the spouse who has come to the court and initiated divorce proceedings is a meritorious one, surely such a person at the initial stage cannot be blamed for initiating the proceedings by observing that the litigation has been foisted on the other side.’ 2 Under Section 24 of the Hindu Marriage Act an application was made for awarding Rs. 7,500/- (Rs. 550 towards litigation expenses, including the counsel’s fee) and Rs. 2000/- towards journey expenses from Barailly to Allahabad. Looking to the facts and circumstances of the case it was considered appropriate to award a sum of Rs. 5,000/- as legal expenses of the appeal. 3 In another case it was held that may be the amount of Rs. 2000/that has been awarded for expenses sounds rather high when one looks at the costs allowable on taxation but one of the grounds on which this high amount of expenses was allowed was that the wife will have to travel a long distance from Jullundur to Agra defending the case. Moreover, looking to the status of the husband and his income it was not possible to say that the payment of this amount would put such a heavy burden on him as to cause any irreparable injury. After all the order does not determine the rights of the parties. It is only an interim order meant to put the indigent spouse into funds so as to enable her to defend or prosecute the case and to keep her body and soul together during the 1 2 3

Bhavenesh Kumar vs. Shushma Sharma, 1999(1) CCC 20 (P&H). Hardeep Singh vs. Paramjit Kaur, I (1991) DMC 156 P&H. Ashwani Kumar Kohli vs. Anita, 1998(3) CCC (All) (DB).

Miscellaneous entitlement—Litigation expenses

591

pendency of the case at the cost of the other spouse in case the latter is in a position to foot the same. 1 It is not fair for wife to spend luxuriously the amount in litigation and burden the husband whose total pay package is of Rs. 6,116,50 p.m. This claim may be with the object and purpose to harass the husband. Both the parties so long as their relation of husband and wife is tied up should take care of each other and to see that wife also minimise, her expenses of litigation and more so when after the Act of 1987 she is entitled for free legal aid. From the order of the Court, it was found that the amount of Rs. 1,500/- awarded as special costs may not be final figure of the amount of expenses of litigation. It is still open to the Court to reconsider the matter but at the same time the Court will keep in mind that the petitioner-wife is entitled for free legal services. As a result of the aforesaid discussion, the claim of the petitioner for sum of Rs. 23,350/- towards litigation expenses, was held to be merit less. 2 Gujarat High Court has also taken the view that in view of availability of legal aid, the wife is not liable to be awarded any litigation expenses. It has held as under: ‘The petitioner may not know she is eligible for free legal aid but the Advocate and the Presiding Officer of the Court in which the matter was pending are suppose to know for this entitlement of this litigant. A litigant who has been ordered to be granted Rs. 2,000/- per month as maintenance, how she will bear out all these expenses and wherefrom she has borne out all these expenses and how in future she will borne out these expenses is a matter of realisation. It is very very difficult for this lady and equally very harsh on the part of the Advocate to put burden of heavy litigation expenses over this poor lady more so when she is entitled for free legal aid. This is not the only case but I am seeing cases after cases where very sad stories are being told by the litigants of this class either in the Court or in the Chamber when the matters are being placed for conciliation proceedings. There seems to be something wrong somewhere in our efforts to make known to this class of litigants for their right to get free legal aid. Though under Section 24 of the Hindu Marriage Act, the husband is under legal obligation to bear out the expenses of litigation of the wife but that is the Act of the year 1956. After this Act of 1987 where this class of litigants are entitled for free legal aid still a husband who belongs to lower middle class may be saddled with all these costs or a question does arise whether he is in a position to bear out such a luxurious litigation expenses of 1 2

Iqbal Singh Cheema vs. Adarsh Cheema, I (1982) DMC 282 All. Sangitaben Rasiklal Jaiswal vs. Sanjaykumar Ratilal Jaiswal, Mehsana, I (2001) DMC 19 Gujarat.

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the wife. Now after this Act of 1987 possibly and legitimately the husband may not be made responsible for the litigation expenses of he wife. However, this is not the matter to be considered at this stage and decided in this case. I am only concerned with the shocking facts which have come on record that how this class of litigants are being exploited. I find fault with the system of which I am also the part. It is unfortunate that despite of having all these legal literacy camps. Lok Adalats etc. we are unable to give a message and make known to this class of litigants that they are entitled for free legal services. Out of the total population of the country, very nominal percentage thereof are involved in litigation. So what is important is that there must be some system, method or modality to make known to this class of litigants about their right of free legal aid at the State expenses. It is not unknown and what our system is that on receipt of summons/ notices of proceedings of the Court, a litigant will do one thing to approach to an Advocate. So the first duty falls on the Advocate who has been approached by this class of litigant and more so a class of litigant who is eligible for free legal services under Section 12 of the Act, 1987 to make her known of the fact that she may not engage him as she is entitled for free legal aid and may approach to the concerned Authorities. This is required to be done at the grass root level and where the two important persons to give this message or to make known of this right to this class of litigants are Advocate and the Judicial Officer concerned. If the Advocate, a professional, does not give this information to the litigant of this category or make know him/her of this right then it comes on the Court on the first hearing of the case to make known him/her of their entitlement of free legal aid. If such category of litigant appears through an Advocate, it is the duty of the Court also to ascertain and to make know to the litigant that he/she is entitled for free legal aid. If it has been done then only these programmes with be successful and beneficiaries thereof will be benefited. The Courts know this but still these litigants are not made known of their right of free legal aid. The petitioner is entitled for free legal aid. She should have approached to the Authority concerned for free legal services. Merely because she was not knowing of her this right or it was not being made known to her by the Advocate, this burden cannot be put on the shoulder of the husband. It was the duty of the Advocate when she approached to him to let her know that she is entitled for free legal services. It is not done in Trial Court as well as in this Court also, which is clearly borne out from the fact her also she is appearing through a paid Advocate. In this Court also, the Advocate should have made known to her that she is entitled for free legal services. It is unfortunate that this programme of free legal services is not successful to the extent to what it should have been because of this non-cooperative attitude of the members of the Bar. The judicial officers are also equally

Miscellaneous entitlement—Necessary expenses of the proceedings

593

responsible for this non-availability of these benefits to this class of litigants. In each case where a woman or child is a party, it is equally a duty of the Judicial Officer concerned to let them know that they are entitled for free legal aid. Be that as it may. It is still open to the petitioner to approach to the Authority concerned before the Trial Court and get free legal aid. She can also apply for free legal aid before this Court to the Authority concerned. In case the amount which is paid by her to Counsel and the amount of expenses exceed the amount which is being sanctioned in her favour towards the expenses of litigation by Authority in lower Court, the balance has to be borne out by her. Here also she has to bear the balance of amount of expenses which she incurred in this revision application where the amount which is ultimately sanctioned by the legal services Authority in her favour here in this Court is less. However, it is expected from the learned Counsel that they will in that eventuality not charged from his lady the amount towards their fees exceeding the amount sanctioned in her favour by the Authority in the lower Court and the Court.’ 1

Necessary expenses of the proceedings The expression employed in Section 24 of the Act is ‘the necessary expenses of the proceedings’. In order to allow such expenses the Court will first determine whether as a question of fact some expenses was incurred. Then will arise the question whether such an expenses was necessary. The second question is not always easy to answer but it will be regulated by the circumstances of each case. A litigant often acts on the advice of the Advocate. If the Advocate advises a certain step or proceeding often enough the litigant helplessly follows such an advice and incurs the expenses. Unless that advice by the Advocate lacked care and caution or was merely intended to delay the proceeding or to harass the husband, it will be difficult to call it unnecessary. Whether the expenses was necessary or not is sometimes judged by the result. It is a helpful factor but it could not be said to be always decisive. Likewise a husband should not be saddled with mounting expenses because a cantankerous wife adopt such an attitude. It is quite conceivable that a husband of poor means could be well nigh ruined in a given case by a litigious wife. Section 7 of the Indian Divorce Act, 1869 provides that subject to the provisions of the said Act the principles and rules of matrimonial causes in England may be followed. These observations, therefore, however apt for the Indian Divorce Act are no more than guides under 1

Kaliben Kalbhai Desai vs. Alabhai Karamshibhai Desai, I (2001) DMC 295 Gujarat.

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the Hindu Marriage Act the awarding of costs appears to be a judicial discretion, the exercise whereof has to be regulated by well known principles of sound reason, good conscience and natural justice. The conduct of parties often reflects their motives and can always be taken into account for granting expenses or not. Neither it is easy nor desirable to lay down rigid rules for exercising such a discretion. The broad principles of judicial conscience would regulate decisions in such disputes and the Court would be well justified in refusing to finance a wife who is apparently harassing a husband. 1

Travelling expenses In one case the petition for divorce had been filed at Pali and the wife lived with her parents at Hyderabad in Andhra Pradesh. It was held that in Indian Society, it is difficult to expect that a young lady should travel all alone this long distance from Hyderabad to Pali without accompanying with her of a near relative. Youth cannot travel alone. The husband should bear the travelling charges of the wife from Hyderabad to Pali on the dates on which she actually comes to Pali to defend the petition for divorce and to that extent the cross-objection filed by the wife was allowed. 2 In another case the Court had clearly directed that the Family Court will insist on the husband not only depositing the to and fro travel expenses for the wife and her companion but also an amount sufficient for their stay in Bombay on each visit. Even according to the Family Court the second class fare from Bombay Central to Delhi by mail train and from Delhi to Ghaziabad comes to Rs. 326+Rs. 12 i.e. 338/- for two persons. The Family Court, therefore, awarded Rs. 700/- by way of expenses and added that she will be paid an additional amount of Rs. 150/- per day if she has to stay for more then one day. To say the least, the Family Court has been far from just to the wife who was required to travel a long distance from Ghaziabad to Bombay Central to defend herself. Nothing has been allowed by way of transport charges and lodging and boarding charges even if she has not to stay for an additional day in Bombay. Where does the Family Court expect her to put up in Bombay after a 24 hour journey? If the case is adjourned it seems it the Family Court expect her to leave on the same day post-haste for Delhi. Even on reaching Bombay after a tiring journey of 14 hours 1

2

Priti Parihar vs. Kailash Singh Parihar (Flt. Lt.), AIR 1975 Raj 52 (DB): 1974 Raj LW 420. Dharamichand vs. Sobha Devi, AIR 1987 Raj 159: (1987) 6 IJ Rep 203: (1987) 1 Rajasthan LR 481: 1987 Raj LW 363: (1987) 2 Hindu LR 267.

Miscellaneous entitlement—Travelling expenses

595

she is not provided any expenses by way of hotel charges, lodge and board, for the day. Does the Family Court expect her to rush the Court from the station and rush back to station from the Court on the proceedings being adjourned for the day? Even the meagre payment of Rs. 150/- is made available to her if she has to stay in Bombay for an additional day. Holding this amount to be unjust it was observed as under: ‘The Family Court, with respect, also did not realize that it would be impossible to find a modest living place for two for Rs. 150/per day in a costly like Bombay, leave aside the expenses for meals, etc. It seems to us that the interim order passed by the Family Court is, for reasons best known to it, highly based. This is more so because it had before it this Court’s order granting Rs. 2,500/- by way of expenses to visit Bombay which provided sufficient guideline determining the quantum of expenses to be awarded. Besides, the Family Court has not awarded any amount to meet the cost of the proceedings on the specious plea that she is gainfully employed. To say the least the order is far from satisfactory and has resulted in gross denial of justice. The order made it impossible for the wife to meet the expenses of frequent visits to Bombay and facilitated an ex-parte divorce decree in favour of the husband.’ 1 The cost of the litigation shall also include what is spent by the applicant for travelling a distance from place of her residence to the Court. In this case the applicant was residing at Amalner which was admittedly at a distance of about 500 to 550 kms. from Buldhana. It was observed as under: ‘Even now a day it is not possible for a woman to undertake such a long and tedious journey and certainly she requires help of a male person to accompany with her. If that is the case, it is necessary that the non-applicant-husband should pay separately the costs of travelling of the wife and any person who will be accompanying her and also to pay some additional charges for their dearness allowance. The trial Judge has certainly lost sight of this particular aspect of the case. However, henceforth direction is given to the trial Judge that he shall direct the nonapplicant to pay the additional amount as stated above to the applicant-wife. However, in case if the adjournment is sought by the wife or her Advocate on any ground, in that case she will not be entitled to get the said amount of expenses from the husband.

1

Anita Laxmi Narayan Singh vs. Lami Narayan Singh, II (1992) DMC 202 SC.

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This particular amount will be in addition to the amount of the costs of the litigation, if the same is ordered by the Court.’ 1

Written Application The provision of the Act are for the purpose of dealing with the matrimonial aspects of the spouses. The provisions embodied in the Act in context with the alimony are benevolent. No strict rule has to be applied in dealing with a prayer made by the wife in matrimonial cases for getting alimony. Due important has to be given to the words “any court exercising jurisdiction under this Act may at the time of passing any decree or at any time subsequent there to”. These words mean that the Court is empowered to consider the prayer of the wife in matrimonial cases for permanent alimony at any time subsequent to be passing of the decree. The total meaning of words used in Section 25 empowers the court to grant permanent alimony to a wife in matrimonial cases in absence of separate application, if such a prayer has been made by the wife in the matrimonial petition itself. 2 It is submitted that the above observation shall also apply to the other payments as well, which have been discussed in this chapter.

1

2

Sadhana Deepak Naik vs. Deepak Laxman Naik, I (1993) DMC 112 Bom. Kanahaiyalal vs. Chandabai, 1998(2) CCC 60 (MP).

Words & Phrases—Child

597

Chapter 15

Words & Phrases SYNOPSIS Introduction....................................597 Child...............................................597 Circumstances ................................598 Decree ............................................598 During the proceedings..................599 Expenses.........................................600 Habitually resides with a concubine600 Having regards to ..........................600 His ..................................................601 Illicit relationship...........................602 Income and means..........................602 Living in adultery ...........................602 Living separately............................606 Magistrate ......................................607

Maintenance .................................. 607 Means ............................................ 608 Mother ........................................... 608 Moveable property ........................ 608 Mutual Consent ............................. 609 Proceeding..................................... 610 Property ......................................... 610 Reasonable .................................... 610 Reasonable & fair provision ......... 611 Reside and residence ..................... 611 Support .......................................... 612 Unable to maintain herself ............ 613 Waive ............................................. 613 Wife................................................ 613

Introduction Every branch of law has its own special vocabulary. It has some time special and some time not so special definitions of the terms frequently used in that branch of law. This chapter deals with such words and phrases which are frequently used in this branch of law and have been judicially considered, one way or the other.

Child The fact that such an interpretation would be expedient and convenient is not always a sure guide, as the legislature, if necessary, can intervene to fill up any lacuna. In this view it was held that the expression “child” in Section 488 Crl. P.C. while it postulates the immediate relationship of the claimant for maintenance with the person who is called upon to pay maintenance by the closely following neutral pronoun “itself” signifies and emphasizes the infancy of the claimant. The inability to maintain “itself” is related to infancy. The expression “child” of course cannot be confined to a child of tender years, a person

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below 14 or 16, as has been contended for in some cases, since in that case there can be no doubt about its inability to maintain itself. The question of ability to maintain one-self can arise only in the case of young persons during adolescence. The meaning of the word ‘child’ in Section 488 must be taken to be a minor whether under the Indian Majority Act or the Court of Wards Act or the Guardians & Wards Act and, thus the court differed from the decisions which have taken the view that any person who is unable to maintain himself or herself of whatever age, without limit would be a child under Section 488, because he is a child of his father. The result would be a son or daughter under 18 would be a child under the Act and where a guardian is appointed by court, the childhood for the purpose of Section 488 would continue during the nonage or legal infancy, that is, till the completion of 21 years. 1

Circumstances The “circumstances” contemplated by Section 489(1) of old Code must include financial circumstances and in that view, the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife. 2

Decree Marriage can be based on contract or, they can be based on sacrament. No doubt, marriage as understood in civilized society was mostly based on religious custom. Religion treated marriage as a sacrament. Marriage were made in Heaven and, therefore, not capable of being brought to an end by human beings. This almost universal idea prevailed for a long period in Man’s history. This concept of divorce existed even in Roman times and was certainly accepted by the Quran. However, it was unknown to Hindu Law and it was also unknown to Christian Law. A decree of divorce was originally granted by the Pope in the form of divorce a vinculo matrimonii. No Court whatsoever, either Civil or Criminal or Ecclesiastical could grant such a decree. King Henry VIII of England was anxious to divorce his wife who was the sister of the King of Spain. The Pope refused to oblige him, so Henry was forced to form his own Church called the Church of England and was able to get a divorce to marry Anne Boleyn. This divorce eventually led historically to the concept of the Ecclesiastical Courts granting a divorce which was generally known as a divorce a mensa at thoro. For a long time in 1

2

Amirthammal vs. K. Marimuthu, AIR 1967 Madras 77 (DB): 1966 Mad LW (Cri) 153: (1966) 2 Mad LJ 506: 1966 Mad LJ (Cri) 832: 1967 Cri LJ 205. Bhagwan Dutt vs. Kamla Devi, AIR 1975 SC 83: 1975 CrLJ 40: 1975(2) SCC 386: 1975(2)SCR 483: 1975Mad LJ (Cr) 81.

Words & Phrases—During the proceedings

599

English legal history, a divorce could only be granted by the Ecclesiastical Courts and no by the ordinary Court. The form of the divorce was a decree. The ordinary English Courts gave their decisions through Judgments, but there was no decree as is understood in Indian Law. The decision of the Court operated as enforceable decree. Even the Letters Patent issued by the King to create the Indian High Courts used the word ‘judgment’ and not the word ‘decree’. Thus, it was a matter of historical evolution that the term decree was used the matrimonial decisions recorded by the Church; the ‘decree’ was a kind of edict, whereas the Civil Courts used the term ‘judgment’. When the English legal system was reformed and the jurisdiction to deal with matrimonial cases was withdrawn from the Ecclesiastical Courts and given to the ordinary Civil Courts for historical reasons, the term ‘decree’ continued to prevail as far as divorces and judicial separations were concerned. When a person approached the Matrimonial Courts, what he sought was decree for divorce or nullity, etc. If he got such a decree, the marriage came to an end. If he failed to get such a decree, then the marriage subsisted. 1

During the proceedings The words “During the proceedings” in Section 24 may in the first flush show that the party is entitled to claim maintenance only during the pendency of the proceedings, but on a close scrutiny these words clearly apply not only to the proceedings before the trial court but also during the pendency of proceedings in appeal as well as during the period between the termination of proceedings in the trial court and filing of appeal. The appeal is only continuation of the suit of proceedings in the trial court, without there being a suit or proceedings in the trial court there cannot be an appeal, therefore the proceedings in the appeal being continuation of the proceedings, the party is entitled to claim maintenance during the period between the date of the decree and the date of filling of the appeal. Merely because the party is unable to file an appeal within a particular period and that too after deducting the time for obtaining the copies, it does not mean that the party is not entitled to claim maintenance during that period. If this interpretation is accepted, it would be defeating the purpose of the provisions enabling a party to claim interim maintenance pending proceedings under this Act. ‘Proceedings’ means proceedings under the Act and it is referable to the Act only. 2

1 2

Sushma vs. Satish Chander, II (1983) DMC 255 Delhi. M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 AP.

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Expenses The word “expenses” is a word of wider connotation and includes “costs”, but is not limited to the costs that would be payable on a partyand-party taxation under the rules of the Court. 1

Habitually resides with a concubine A word which should be noted carefully is “habitually”. That is an adverb drawn from the noun “habit” that connotes ordinary course of behaviour, custom, accustomedness and therefore, “habitually” would mean “as a usual practice”. The next term on which some controversy centres in the word “reside”. It has several meanings and would take in the sense of “dwelling in a place” or “act of living” and would indicate that in which something permanently inheres or has its seat. What is of relevance and importance is the adoption of a way of life by the husband. The emphasis of entire clause (e) is on the practice of keeping a woman by a married man and that should be kept in view while considering all the relevant terms. If, therefore, upon evidence it is shown that a husband has kept a mistress though at a different place, it should be sufficient to answer the latter part of clauses (e) the whole phrase “habitually resides with a concubine elsewhere” is indicative of a customary behaviour of a married man though he might not have changed his ordinary place of residence. His course of conduct spread over a period his mental attitude in visiting the place of concubine his assertions his involvement with such other woman should all enter the ken of consideration to find out whether he habitually resides with such a keep or not. By the term “habitually resides”, that emphasis is on the “habit” and not on “residence”. If he brings the mistress in his house where his wife is living the first part in full force applies but where he does not bring such a mistress and keeps her outside, the second part should always apply. 2

Having regards to The expression “having regard to” in Section 24 conveys a mandate that the Court shall have regard to the income of the parties. The expression “having regard to”, “have regard to” and other allied expressions have been the subject of judicial interpretation by our apex Courts. The expression “have regard to” in Section 168 of the Madras Estated Land Act, 1908, came up for consideration before the Privy

1

2

Louise Dinshaw Cambata vs. Dinshaw S. Cambata, AIR 1974 Bombay 82: 75 Bom LR 532L 1973 Mah LH 1051. Kesarabai vs. Haribhau, AIR 1975 Bom 115: ILR (1974) Bom 1273.

Words & Phrases—His

601

Council. 1 The view taken by the majority of the Collective Board of Revenue in that case was that “that requirement ‘have regard to’ the provisions in question has no more definite and technical meaning than that of ordinary usage and only requires that those provisions must be taken into consideration”. Their lordships approved 2 this view which appears to their Lordships to be “fairly clear as a matter of English” also. These observation of the Privy Council have been quoted with approval by the majority of the Supreme Court. 3 The Supreme Court has observed in another case 4 that “where the law requires the court to have regard to certain provisions and the Court does not pay that regard, it can not but be said that the trial has not been according to law”. In another case 5 when it was urged before the Supreme Court that since Section 47 of the Motor Vehicles Act requires that the Regional Transport Authority, in considering an application for stage carriage permit, shall have regard to certain matters, the Authority must take them into consideration and that failure to do so would be “clearly in breach of Section 47” and would vitiate the order, the Supreme Court, while accepting the argument, observed that “there is great force in this contention”. In this view of the law, it was held that the Court having been required by Section 24 of the Hindu Marriage Act to have regard to the in case of the parties in ordering payment of pendente lite maintenance by one spouses to the other, must take into consideration such income in making such order and if the Court does not do so or does not pay the regard, then it can not but be said that the Court has acted in breach of the relevant provisions of law and has, therefore, “acted illegally” within the meaning of Section 115 (1)(c) of the Code of Civil Procedure to warrant intervention in revision. 6

His It is true that Cl. (d) of section 125 of Criminal Procedure Code, 1973 has used the expression “his father or mother” but the use of the 1 2 3 4 5

6

Ryots of Garabandho vs. Zamindar of Parlakiedi, AIR 1943 PC 164. At page 180 Mysore State Electricity Board , AIR 1963 SC 1128 at 1136. V.K. Verma vs. Radhey Shayam, AIR 1964 SC 1217 at page 1320. Patiala Bus (Sirhind) (P) Ltd. Vs. State Transport Appellate Tribunal Punjab, AIR 1974 SC 1174: 1974 (2) SCC 215 Ashit Mukherjee vs. Susmita Mukherjee, II (1986) DMC 254 Calcutta.

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word ‘his’ does not exclude the parents claiming maintenance from their daughter. Section 2(y), Cr. P.C. provides that words and expressions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 8 of the Indian Penal Code lays down that the pronoun ‘he’ and its derivatives are used for any person whether male or female. Thus, in view of Section 8, IPC read with S. 2(y), Cr. P.C. the pronoun ‘his’ in Cl. (d) of S. 125(l), Cr. P.C. also indicates a female. Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Therefore, the pronoun ‘his’ as used in Cl. (d) of S. 125(l) Cr. P.C. includes both a male and a female. 1

Illicit relationship The word illicit is defined in the dictionaries as: Unlawful; not authorised or allowed; Not sanctioned by law, rule or custom. In other words it is one which is not sanctioned by law, rule or custom. In this scheme sexual indulgence is not essential though there may be a strong possibility of its existence. 2

Income and means In the statutory law relating to maintenance operating in our country for about a century, the expression ‘means’ or ‘sufficient means’ are well-known to out legislature. As early as in 1898, the expression ‘sufficient means’ was used by legislature in Section 488 of the Code of Criminal Procedure of 1898 and has again been used in Section 125 of the present Code of Criminal Procedure of 1973. That being so, it would be perfectly legitimate to infer that the legislature intended a departure and has deliberately used in word income instead of the word means to exclude all means not yielding any income. 3

Living in adultery The words used ‘living in adultery’ in sub-Section (4) of Section 123 Criminal Procedure Code are of limited amplitude, inasmuch as it is for the husband to prove that the wife is continuously committing 1

2 3

Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987 CrLJ 977: 1987 AIR (SC) 1100: 1987 CAR 87: 1987 (2) SCC 278: 1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553. Kiran Sharma vs. Shardha Nand Sharma, I (1991) DMC 402 Delhi. Gita Chatterjee vs. Probhat Kumar Chatterjee, II (1987) DMC 139 Calcutta: (1987) 2 Hindu LR 292: 1987 Cal LT (HC) 152: (1988) 92 Cal WN 302: (1988) 2 Hindu LR 20: (1988) 2 Civ LJ 416.

Words & Phrases—Living in adultery

603

violation of the marriage bed, indulging in adulterous life, i.e., living in quasi permanent union with the person with whom she was caught red handed. To establish this, more than one instance of adultery has to be brought home to the knowledge of the wife, thereby constituting the term ‘living in adultery’ within the meaning of sub-Section (4) Section 125 Criminal Procedure Code. 1 If a husband has contracted a marriage with another woman, it shall be considered to be just ground for his wife’s refusal to live with him. If wife developed intimacy and even sexual relations with another while the husband was at Assam, the husband is more to be blamed than the wife. In any event, it cannot be said by wife’s intimacy with a single person that the wife was living in adultery. 2 A learned Judge of Madras High Court 3 considered the decisions of various High Courts and held that this term ‘living in adultery’ has been consistently held to mean an outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery. The trial court in a case of this nature must consider the evidence on record to ascertain as to whether the present petitioner was living with in a quasi-permanent manner as held. This being absent in the judgment of the trial court, the Session Judge was held to be right in remanding the case for re-trial. 4 The phase ‘living in adultery’ used in Section 488(4) of the Criminal Procedure Code 1898 which is akin to Section 125(4) of the present Cr.P.C. has been considered by various High Court in India and have taken the uniform view that living in adultery denotes a continuous course of conduct or living in the state of quasi-permanent union with the adulterer. The Rangoon High Court 5 has observed as follows: “Emphasis must be laid upon the words living in ‘adultery’. The words used are not ‘committed adultery’ and there is clearly a great distinction between ‘committing adultery’, and ‘living in adultery’. ‘Living in adultery’ denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtue would be acts of adultery but would be quite 1 2 3 4 5

Ravendra Singh vs. Kapsi Bai, II (1991) DMC 422 MP. Sarla vs. Mahendra Kumar, II (1989) DMC 145 Rajasthan. Kasturi vs. Ramasamy, 1979 Crl LJ 741 Madras. Bilawati Pegu vs. Phukan Pegu, I (1988) DMC 95 Gauhati. Ma Mva Khin vs. N.L. Godenho, AIR 1936 Rangoon 446.

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insufficient show that the woman was ‘living in adultery’, which means, so far as I understand the expression, that she must be living in a state of quasi-permanent union with the man with whom she is committing adultery.” The Madras High Court 1 has also held that living in adultery is something different from leading an unchaste life and unless the wife is actually living in adultery at or about the time of the applicant, she is not disentitled to obtain maintenance and continued adulterous conduct and not occasional lapses from virtue constitutes sufficient reason for refusing maintenance. A Division Bench of the Mysore High Court 2 after adverting to various decisions of several High Courts in India 3, held that: “It is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband but it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance.” Kerala High Court 4 after considering the decision of several High Court has held that an occasional lapse from virtue, or immoral conduct long before the time maintenance is applied for does not disentitle a wife for relief under Section 488 of Cr.P.C., 1898 and observed as follows: “The provision that the wife is disentitled to maintenance if she is ‘living in adultery’ means that the husband can withhold his aid only when her adulterous conduct has continued for some length of time suggesting thereby that she has found another albeit less honourable haven from the chill winds of penury.” The same Court in another decision 5, has held that “living in adultery means something different from leading an unchaste life”. One or two lapses from virtue would be acts of adultery but would be quite insufficient to show that the woman was living in adultery. In Kasthuri vs. Ramasamy, 6 while construing the phrase ‘living in adultery’ used in Section 125(4) of the Cr.P.C. the Madras High Court has observed that “The term” ‘living in adultery’ has now been consistently held to mean an outright adulterous conduct where the wife

1

2 3 4 5 6

Laksmi Ambalam vs. Andiammal, AIR 1938 Mad 66; Kista Pillai vs. Amirthammal, AIR 1938 Mad 833. Subramaniyam vs. Ponnakshiammal, AIR 1958 Mysore 41. Patala Atchamma vs. Patala Mohalakshmi, ILR 30 Madras 332 Nesamma vs. Hentri, Kerala LT 964. Mercy vs. Varghese, 1968 Ker. LT 154. 1979 Cri. LJ 741.

Words & Phrases—Living in adultery

605

lives in a quasi-permanent union with the man with whom she is committing adultery’. In another case it has been observed as under: “As already stated, even assuming for a moment, that the respondent had committed adultery with Kunni Raman on that day, it does not affect the merits of the case for maintenance, because it was only a single incidence and it cannot be construed as ‘living in adultery’. There is no evidence on the side of the husband that after that incident she has been continuously living with her paramour. 1 It is clear from the consistent view taken by the various High Court referred to above that the phrase ‘living in adultery’ used in Section 125(4) of the present Cr.P.C. and in Section 488(4) of the Cr.P.C., 1898 contemplates a continuous course of conduct on the part of the wife with the adulterer or paramour as the case may be and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under Section 125 of the Criminal Procedure Code. 2 The phrase ‘living in adultery’ refers to course of guilty conduct and not a single lapse from virtue. The term “adultery” is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie. “Living in adultery” — mere friendship with a man does not amount to adultery within the meaning of Section 125(4), Criminal Procedure Code. “Living in adultery” means the following of a course of continuous adulterous conduct. While determining the factum of “living in adultery” the Court must consider evidence on record to ascertain as to whether the wife was living in quasi-permanent union with a man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously committing violation of the married bed, indulging in adulterous life, by living in quasi permanent union with her paramour. In other words, “living in adultery” means an outright adulterous conduct where the wife lives in a quasi permanent union with a man with whom she is committing adultery, ‘shortly’ before or after the petition for maintenance. 3 The words “living in adultery” are merely indicative of the principle that the single or occasional lapse from virtue is not a sufficient

1 2

3

Narayanan Nair vs. Karthiyayini, (1983) MLJ (Cri) 115. Naranath Thazhakuniyil Sandaha vs. Kottayat Thazhakuniyil Narayanan, I (2000) DMC 508 Kerala. K. Veeriah vs. Muthulakshmi, II (1999) DMC 287 Madras: 1999(1) HLR 181.

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reason for refusing maintenance. To reiterate the continued adulterous conduct is what is meant by “living in adultery”. 1 The phrase “living in adultery” used in Section 125(4) of the present Criminal Procedure Code and in Section 488(4) of the Criminal Procedure Code., 1898 contemplates a continuous course of conduct on the part of the wife with the adulterer or paramour as the case may be and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under Section 125 of the Criminal Procedure Code. 2 The expression “if she is living in adultery” undoubtedly connotes a course of adulterous conduct more or less continuous. An occasional lapse would not be a sufficient reason for refusing maintenance with the ambit of Sub-section (4). Therefore, a Magistrate has to prove and find out whether at or about the time of the application, there has been an adulterous conduct on the part of the wife. Further, there must be clear proof of adultery. A suspicion nurtured by the husband will not disentitle the wife to receive the maintenance under the Code. It is true that direct evidence of adultery can seldom be given, but at the same time there must be some evidence to prove the allegations of adultery and a mere bazaar gossip would not prove adultery. Since Subsection (4) is in the nature of an exception to the main section, it is for the husband claiming protection under the said provision to show that the said sub-section is applicable, that is to say, the husband must establish that the wife is living in adultery. 3 The words “is living in adultery” have been considered in Section 488 to Criminal Procedure Code. Many High Court have held them to mean a continuous course of adulterous life as distinguished from one or two lapses from virtue. Living in adultery is wider than mere living as a concubine or as a kept mistress. The word “is living” cannot mean “was living”. It is true that it would not be possible to lay down any hard and fast rule. Each case must be decided upon its own facts. 4

Living separately Living separate by mutual consent can not be equated with living separate because of consent decree. The fact that the applicant consented 1

2 3 4

K. Veeriah vs. Muthulakshmi, II (1999) DMC 287 Madras: 1999(1) HLR 181. Sandha vs. Narayanan, II (1999) DMC 411 Kerala. Rachita Rout vs. Basanta Kumar Rout, II (1986) DMC 448 Orissa. Pattayee Ammal vs Manickam Gounder, AIR 1967 Mad 254: (1966) 79 Mad LW 620: 1967 Cri LJ 900.

Words & Phrases—Maintenance

607

to a decree for judicial separation would only indicate that he agreed with the charges levelled against them. Consenting to the charge levelled by the non-applicant cannot in law be accepted as consenting to live separately. The test in such cases is to find out if the agreement between the parties was for purposes of living separately or was forced by circumstances. 1 In Ajitsingh Hakamsingh vs. Labhkaur, 2 the Gujarat High Court took the view that living separately because of force of circumstances does not amount to living separately by mutual consent. In Ram Chand v. Jiwan Bai, 3 it was held that whether a particular compromise amounted to live separately by mutual consent or not is a question of fact in each case. In an old case, 4 it was held that living separately under an agreement settled by Panchayat to whom disputes between the husband and wife were referred is not living separately by mutual consent. It is, therefore, clear that what is relevant for the case is not the factum of living separately but the consent to live separately. When a perusal of the consent decree for judicial separation indicated that there was no consent as such to live separately, it was held that this cannot amount to her agreeing to live separately by mutual consent. 5

Magistrate The words “the Magistrate” would mean the Magistrate who had passed the first order of maintenance, because this interpretation is strengthened by the fact that Section 128 Cr.P.C. which is the section for enforcement of the order of maintenance specifically provides that such petition under Section 125 Cr.P.C. may be presented before “any Magistrate”. Therefore, in these circumstances the petition under Section 127 Cr.P.C. will have to be filed before the Magistrate who has passed the first order of maintenance. 6

Maintenance Heading of Section 24 of the Hindu Marriage Act, 1955 is “Maintenance pendente lite and expenses of proceedings”. The section, however, does not use the word “maintenance”, but it appears that the words “support” and “maintenance” are synonymous. “Support” means “to provide money for a person to live on”, like “he supports a family” or 1 2 3 4 5 6

Raghunath vs. Suman, I (1988) DMC 282. 1971 Cr LJ 888. AIR 1958 Punjab 431. Tekchand vs. Kalavantibai, AIR 1941 Sind 214. Raghunath vs. Suman, I (1988) DMC 282. G. Balraj vs. Mallamma, II (1984) DMC 232 AP.

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“he supports his old mother”. Maintenance is “an act of meaning”, i.e. to support with money. For example, “he is too poor to maintain his family”. 1

Means The expression “means” in Section 125 of the Code does not signify only the visible income, such as, real property or regular source of income or a definite employment. A person who is able-bodied and who does not suffer from any physical or mental incapacity can be considered as a person who has the capacity to earn sufficient income because his physical and mental capacity provide him the capacity to earn. Therefore, even if a person who has no definite source of income or a regular source of income, he cannot escape his liability to pay maintenance. 2

Mother The words “his mother” includes natural mother and not step mother. The right of the step mother in the coparcenary property does not justify her claim under Section 125, Cr.P.C. It has for this reason that no explanation was appended in this Section to show that even a step mother is included within the connotation of mother. 3

Moveable property The definition of “moveable property” given in the Penal Code, is basically meant for the provisions contained in the Indian Penal Code itself. The Penal Code classifies the offences under various heads. Many of those heads deal with various items of moveable property. 4 When the framers of the Indian Penal Code were aware of and were, in fact intending to provide for defining and penalising the offences pertaining to moveable property, both tangible and intangible, the connotation of the expression ‘moveable property’ ought to be restricted to certain types of property when the intention was to deal with tangible moveable property alone. This does not mean that the Indian Penal Code, by itself, does not recognise the distinction between the tangible moveable property and intangible moveable property at all. When the Indian Penal Code itself does not do away with this distinction and when it purports to deal with tangible moveable property under 1 2

3 4

Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10. Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II (1991) DMC 485 Guj. Sarju Prasad vs. Damyanti, II (1984) DMC 251 All. Bhagwat vs. Baburao, II (1994) DMC 195 Bombay.

Words & Phrases—Mutual Consent

609

certain provisions and intangible moveable property under other provisions, it could hardly be said the definition of ‘moveable property’ as corporeal property of every description was supposed to apply for all purposes. 1 It is not unknown that the law defines the same expression differently in different manner to serve the different purposes for which various legislations are made. The context and the use of the expression “moveable property” in Section 421 of the Code of Criminal Procedure is altogether when that provision is to be read in the context of the civil right which are to be adjudged upon and settled by a decision of punitive law proceedings under Chapter IX of the Code of Criminal Procedure than the context and the use of that expression in punitive proceedings. The definition of expression “moveable property” given in the Indian Penal Code cannot be legally inducted in to the aforesaid provisions for the purpose of determining the scope of the application of the aforesaid provisions, much less for the enforcement of the right determined and settled in proceedings like proceedings under Chapter IX of the Code of Criminal Procedure. 2

Mutual Consent “Mutual consent” as used in sub-section (4) of section 125 of Criminal Procedure Code, 1973 means a consent on the part of the husband and wife to live apart, no matter what the circumstances may be. Where a wife refuses to live with the husband on some specific ground such as cruelty, or the fact that he is keeping another wife, it cannot be said that the husband and wife are living apart by mutual consent if the husband does not insist that the wife should live with him. 3 The test therefore should be to find out if the agreement for separate living and payment of maintenance was the outcome of the desire of both parties, independently reached by each of them, or if one of the parties was forced to submit by circumstances to such agreement. Where the wife is not prepared to live in a separate house but insists on living with the husband, but he starts living separate, or where the husband having an option to live with his wife chooses to live separate, it cannot be said that they are living separately by mutual consent. But where each party finds it impossible to live amicably and comfortably

1 2 3

Bhagwat vs. Baburao, II (1994) DMC 195 Bombay. Bhagwat vs. Baburao, ibid. Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi, AIR 1965 Manipur 49: 1965 (2) Cri LJ 785.

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with the other and each party and there is consent that they should live separately, the separate living is by mutual consent. 1

Proceeding The word “proceeding does not have a fixed connotation with a definite meaning attached to it. The ambit of the meaning of this phrase will be governed by the context. The word “proceeding:” ordinarily relates to forms of law, to the modes in which judicial transactions are conducted. The word “proceeding” in a general sense means “the form and manner of conducting of judicial officer”. 2 It can include within itself suit, appeal and second appeal. In the context, the word “proceeding” would include the appeal as well, particularly when for the “proceeding”, the words “suit” has already been written. The intention of the Parliament appears to be that even the appeals pending on the date of enforcement of the Act, should be decided in accordance with the amended law. 3 An appeal under Section 28 of the Act is a proceeding for the purposes of Section 24 of the Act. 4

Property It would be quite wrong and unjust to exercise that discretionary power to enable her to do something by a side door which one could not otherwise do. Therefore the pump sum payment can not be included in the term property. 5

Reasonable The expression “reasonable” is a relative term. What may be reasonable in one case may not be necessarily reasonable in another case. Reasonableness of the quantum of compensation has not to be determined by merely having regard to the petitioner’s own income and the income of the respondent but also by having regard, as far as may be, to the standard of life maintained by the family to which the parties belong. The rule that is no case maintenance should be granted at a rate or more than one-fifth of the husband’s income is not only unreasonable,

1

2 3

4

5

Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi, AIR 1965 Manipur 49: 1965 (2) Cri LJ 785. Black’s Law Dictionary, page 1368 Ram Narain Pathak vs. Urmila Devi, AIR 1980 All 344: 1980 All WC 281. Arya Kumar Bal vs. Smt. Ila Bai, AIR 1968 Calcutta 276: Sushil Kumar Gupta vs. Susma Gupta, I (1982) DMC 207 Delhi. Pace vs. Doe, (1977) 1 All ER 176: (1982) 2 DMC (BJ) 74.

Words & Phrases—Reside and residence

611

but also irrational which may some time defeat the very object of avoiding vagrancy; the reason d’etre of Section 30. 1

Reasonable & fair provision The two phases ‘reasonable and fair provision’ and ‘maintenance’ carry distinct meaning is also clear from the fact that the Legislature has chosen to employ the said expression in one section. If they were to convey the same meaning there was no reason for the Legislature to use two different expressions. The legislature does not use toutologous language in this manner. It does not use words unnecessarily. Every part of a statute should be given as far as possible its full meaning and effect and no word or clause should ordinarily be rejected as superfluous. Lord Hewart, C.J. has observed: “It ought to be the rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly. Upon those who assert that that rule has been broken the burden of establishing their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning just preferred.” 2 The two expression must, therefore, carry two different meaning. This view is fortified by the manner in which these two words are employed in the sections. Section 3(1)(a) says “reasonable and fair provisions and maintenance to be made and paid to her within the Iddat period”. The words ‘to be made’ must obviously follow the word “reasonable and fair provision” to make it read as “reasonable and fair provision” to be made to her within the Iddat period. The words ‘to be paid’ must follow the words maintenance to make it read as “maintenance to be paid within the Iddat period”. Any other arrangement of the words would make no sense. 3

Reside and residence The Dictionary meaning of “resides” is “to droll permanently or continuously; have a settled abode for a time; have one’s residence or domicile”. “Reside” means something more than a flying visit or a casual stay. There shall be an intention to stay for a period, the length of which 1

2

3

Rakesh Chandok vs. Vinod, II (1982) DMC 325 J&K.: AIR 1982 J&K 95: 1982 Srinagar LJ 127. Spiller Limited vs. Cardiff (Borough) Assessment Committee and Pritchard (Revenue Officer for the Cardiff Assessment Area), (1931) 2 KB 21. Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000) DMC 634 Bombay.

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depending upon the circumstances of each case. A person resides in a place if he makes it his abode permanently or even temporarily. In order to find out whether the petitioners actually resided or they had some intention to remain at a place and nor merely to pay a casual visit, it should be considered whether the period of stay was merely for a visit or for residence although temporary. 1 When the statute nowhere dictates that residence must always be permanent, it can not deemed to be so. If it were meant to be so, nothing prevented the legislature to spell out its intention by giving a meaning to the expression ‘resides or resided’ to the effect that such residence was to be permanent character and not of a temporary nature. There is, however, a distinction between the expression ‘reside’ and ‘stay’. The expression ‘reside’ implies something more than ‘stay’. The expression ‘stay’ and means remaining at a place for a temporary period. The expression ‘reside’ according to Oxford dictionary means, “to dwell permanently or for a considerable time, to have one’s settled or usual abode; to live in or at particular place”. A person can be taken to reside at a place even if lives in a rented house, if such residence is not for a purely temporary period. The real test is whether he has a permanent place of living to which he intends to go back. If a person has no permanent place of living, it can safely be inferred that the place where he lives is the place where the resides. 2

Support Section 24 of Hindu Marriage Act, 1955 uses both terms, “Maintenance” in the margin and “Support” in the body of the section. The word “support” is doubtless one of the most elastic in the language. “Maintenance” means the act of maintaining, and denotes the regular supply of food, clothing and lodging, the provisions of the necessaries and the conveniences of life. These will in each case depend in part on the standing of the parties, their wealth and the environment to which they in their married state have been accustomed, as every case will be different and no case may be decided except upon its particular facts. 3 In Preeti Archana Sharma vs. Ravind Kumar Sharma, 4 it was observed that “Section 24 uses the word “support” and does not uses the 1

2 3

4

Sadasivuni Pushpa vs. S. Divakar Rao, I (1985) DMC 380 Orissa: Ananth Gopal Pai vs. Gopal Naryana Pai, II (1984) DMC 470 Karnataka. Dhiren Kumar vs. Rebati Das Mallik, I (1987) DMC 1 Orissa. Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I : 1984 Marriage LJ 316: AIR 1984 Delhi 320. AIR 1979 Allahabad 29.

Words & Phrases—Wife

613

word “standard” or “status”. Dissenting from this decision it was held that the word “support” is of wide import. Support has to be according to the standard of the parties. Maintenance has to be fixed according to the standing of the parties, their wealth and the environment to which they in their married state have been accustomed. 1

Unable to maintain herself The phrase “unable to maintain herself” means unable to earn a livelihood. This obviously means that the earning is such that the wife can maintain herself without depending upon others. But merely because a deserted wife earns a paltry sum by engaging herself in some profession which may not even be sufficient to give one meal per day it cannot be said that she is able to maintain herself with the income she earns. The income must be such which would be sufficient for an ordinary person to be maintained out of the same. 2

Waive The word ‘waive’ according Chambers 20 th Century Dictionary means, “to put away, reject, to abandon, forsake to vacate, to resign: to outlaw (a woman—her status in the eyes of the law being such that the usual term was not applicable to her) (hist); to abandon (stolen goods): to give up voluntarily, as a claim or a contention (law); etc”. Simply because the wife has not claimed maintenance for a long period, it does not mean that she has completely abandoned her right or voluntarily given up her right to claim maintenance. 3

Wife The term “wife” appearing in Section 125(1) of the Code means only a legally wedded wife. 4 Section 5 of Hindu Marriage Act, 1955 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. Such marriage must, therefore, be treated as null and void from its very inception. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under sub-section (1)(a) has to establish the necessary condition, 1

2 3 4

Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984 Marriage LJ 316: AIR 1984 Delhi 320. Namitarani Bose vs. Dipak Kumar, II (1986) DMC 50 Orissa. Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP. Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, II (1982) DMC 434 Bombay.

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namely, that she is the wife of the person concerned. This issue can be decided only a reference to the law applicable to the parties. It is only where an applicant establishes her status or relationship with reference to the personal law that an application for maintenance can be maintained. 1 Though wording used in the Explanation is ‘includes’, it does not make the expression “wife” inclusive in the Explanation. The additional categories of women sought to be covered by the explanation are exhaustive, in the context. The word ‘includes’ has been used here to mean “extends” to the categories mentioned in the Explanation. Even if it is assumed that the categories of divorce women mentioned in the Explanation are inclusive then also the Explanation cannot be held to cover a woman against whom a decree of divorce has been obtained by her husband, for the aforesaid incongruous situation it may lead to. The Legislature cannot be deemed to have intended to enact a law which may lead to an anomaly. 2

1

2

Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR 1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93: 1988 CrLR (SC) 182: 1988(1) Crimes 594: 1988(1) Ker LT 416. Bhagwan Raoji Dale vs. Sushma @ Nanda Bhawan Dale, 1999(1) HLR 579 Bombay.