• Chaturbhuj Vs. Sita Bai

  • Head Notes

    Maintenance For Wife & ChildrenCode Of Criminal Procedure, 1973- Section-125- The S.125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. –Under the law, the burden is placed in the first place upon the wife to show that the means of her husband are sufficient.- The phrase "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 desertion to survive somehow.- There is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. Judgments Relied up on & reiterated- Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC 1807, Savitaben Somabhai Bhatiya Vs. State of Gujarat and Ors., (2005) 2 Supreme 503 & Bhagwan v. Kamla Devi, AIR (1975) SC 83- Judgmernt- Chaturbhuj Vs. Sita Bai, Criminal Appeal No. 1627 Of 2007, Date Of Judgment: 27/11/2007, Bench-Dr. Arijit Pasayat & Aftab Alam, Supreme Court Of India-Citation-(2008) 2 Supreme Court Cases 316= 2008 AIR 530= 2007(12 )SCR 577=  2007(13)SCALE 402=2008(1) JT 78

    Judgment

    Supreme Court Of India

    CASE NO.:

    Appeal (crl.)  1627 of 2007

    Supreme Court Of India

    PETITIONER:

    Chaturbhuj

    RESPONDENT:

    Sita Bai

    DATE OF JUDGMENT: 27/11/2007

    BENCH:

    Dr. ARIJIT PASAYAT & AFTAB ALAM

    JUDGMENT:

    J U D G M E N T

    CRIMINAL APPEAL NO. 1627 OF 2007

    (Arising out of SLP (Crl.) No.4379 of 2006)

    Dr. ARIJIT PASAYAT, J.

    1.               Leave granted.

    2.    Challenge in this appeal is to the order passed by a

    learned Single Judge of the Madhya Pradesh High Court,

    Indore Bench, dismissing the revision petition filed by the

    appellant in terms of Section 482 of the Code of Criminal

    Procedure, 1973 (in short 'Cr.P.C.'). The challenge before the

    High Court was to the order passed by learned Judicial

    Magistrate, First Class, Neemuch, M.P. as affirmed by the

    learned Additional Sessions Judge, Neemuch, M.P.  The

    respondent had filed an application under Section 125 of

    Cr.P.C. claiming maintenance from the appellant.

    Undisputedly, the appellant and the respondent had entered

    into marital knot about four decades back and for more than

    two decades they were living separately.  In the application it

    was claimed that she was unemployed and unable to maintain

    herself. Appellant had retired from the post of Assistant

    Director of Agriculture and was getting about Rs.8,000/- as

    pension and a similar amount as house rent.  Besides this, he

    was lending money to people on interest.  The appellant

    claimed Rs.10,000/- as maintenance.  The stand of the

    appellant was that the applicant was living in the house

    constructed by the present appellant who had purchased 7

    bighas of land in Ratlam in the name of the applicant. She let

    out the house on rent and since 1979 was residing with one of

    their sons.  The applicant sold the agricultural land on

    13.3.2003.  The sale proceeds were still with the applicant.

    The appellant was getting pension of about Rs.5,700/- p.m.

    and was not getting any house rent regularly.  He was getting

    2-3 thousand rupees per month.  The plea that the appellant

    had married another lady was denied. It was further

    submitted that the applicant at the relevant point of time was

    staying in the house of the  appellant and electricity and water

    dues were being paid by him.  The applicant can maintain

    herself from the money received from the sale of agricultural

    land and rent.  Considering the evidence on record, the trial

    Court found that the applicant-respondent did  not have

    sufficient means to maintain herself.

    3.            Revision petition was filed by the present appellant.

    Challenge was to the direction to pay Rs.1500/- p.m. by the

    trial Court.  The stand was that the applicant was able to

    maintain herself from her income was reiterated.  The

    revisional court analysed the evidence and held that the

    appellant's monthly income was more than Rs.10,000/- and

    the amount received as rent by the respondent-claimant was

    not sufficient to maintain herself.  The revision was

    accordingly dismissed.  The matter was further carried before

    the High Court by filing an application in terms of Section 482

    Cr.P.C.  The High Court noticed that the conclusions have

    been arrived at on  appreciation of evidence and, therefore,

    there is no scope for any interference.

    4.            Section 125 Cr.P.C. reads as follows:

    "125. (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 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 (9

    of 1875), is deemed not to have attained his

    majority;

    (b) 'wife' includes a woman who has been

    divorced by, or has obtained a divorce from,

    her husband and has not remarried."

    ["(2) Any such allowance for the maintenance or

    interim maintenance and expenses of proceeding

    shall be payable from the date of the order, or, if so

    ordered, from the date of the application for

    maintenance or interim maintenance and expenses

    of proceeding, as the case may be.";]

    (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 port of each month's allowance 4

    [allowance for the maintenance or the interim

    maintenance and expenses of proceeding , as the case

    may be] 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:

    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 of 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 a 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 4 [allowance

    for the maintenance or the interim maintenance and

    expenses of proceeding , as the case may be] 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 sufficient reason she

    refuses to live with her husband, or that they are

    living separately by mutual consent, the Magistrate

    shall cancel the order."

    5.            The object of the maintenance proceedings is not to

    punish a person for his past neglect, but to prevent vagrancy

    by compelling  those who can provide support to those who

    are unable to support themselves and who have a moral claim

    to support.  The phrase "unable to maintain herself" in the

    instant case 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 desertion to

    survive somehow.  Section 125 Cr.P.C. is a measure of social

    justice and is specially enacted to protect women and children

    and as noted by this Court in Captain Ramesh Chander

    Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)

    falls within constitutional sweep of Article 15(3) reinforced by

    Article 39 of the Constitution of India, 1950 (in short the

    'Constitution'). It 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.  It gives effect to fundamental rights and

    natural duties of a man to maintain his wife, children and

    parents when they are unable to maintain themselves.  The

    aforesaid position was highlighted in Savitaben Somabhai

    Bhatiya v.  State of Gujarat and Ors. (2005 (2) Supreme 503).

    6.            Under the law the burden is placed in the first place

    upon the wife to show that the means of her husband are

    sufficient. In the instant case there is no dispute that the

    appellant has  the requisite means.

    7.            But there is an inseparable condition which has also to

    be satisfied that the wife was unable to maintain herself.

    These two conditions are in addition to the requirement that

    the husband must have neglected or refused to maintain his

    wife.  It is has to be established that the wife was unable to

    maintain herself.  The appellant has placed material to show

    that the respondent-wife was earning some income. That is

    not sufficient to rule out application of Section 125 Cr.P.C. It

    has to be established that with the amount she earned the

    respondent-wife was able to maintain herself.

    8.            In an illustrative  case where wife was surviving by

    begging,  would not amount to her ability to maintain herself.

    It can also be not said that the wife has been capable of

    earning but she was not making an effort to earn. Whether the

    deserted wife was unable to maintain herself, has to be

    decided on the basis of the material placed on record.  Where

    the personal income of the wife is insufficient she can claim

    maintenance under Section 125 Cr.P.C. The test is  whether

    the wife is in a position to maintain herself in the way she was

    used to in the place of her husband.  In Bhagwan v. Kamla

    Devi (AIR 1975 SC 83) it was observed that the wife should be

    in a position to maintain standard of living which is neither

    luxurious nor penurious but what is consistent with status of

    a family.  The expression "unable to maintain herself" does not

    mean that the wife must be absolutely destitute before she can

    apply for maintenance under Section 125 Cr.P.C.

    9.            In the instant case the trial Court, the Revisional Court

    and the High Court have analysed the evidence and held that

    the respondent wife was unable to maintain herself.  The

    conclusions are essentially factual and they are not perverse.

    That being so there is no scope for interference in this appeal

    which is dismissed.

     

Live2Support.com
All original content on these pages is fingerprinted and certified by Digiprove