Ramesh Chander Kaushal Vs. Veena
Kaushal & Ors  INSC 93 (27 April 1978)
CITATION: 1978 AIR 1807 1978 SCR (3) 782 1978
SCC (4) 70
Criminal Procedure Code, (Act II of 1974),
1973 Section 125- Scope of-Construction of the words "in the whole"
occurring in s. 125.
The petitioner sought divorce through the
civil court from the respondent and the respondent claimed maintenance from the
criminal court. As an interim measure, the district court awarded maintenance
and the High Court fixed the rate at Rs. 400/- per mensem for the spouse as a
provisional figure. Meanwhile the Magistrate, on the evidence before him,
ordered ex parte, monthly maintenance at Rs. 1000/- for the respondent-mother and
two children together.
In this Court, the petitioner contended : (i)
a civil court's determination of the quantum is entitled to serious weight and
the criminal court, in its summary decision fell into an error in ignoring the
former; and (ii) the awardable maximum for mother and children, as a whole
under section 125 of the Code of Criminal Procedure was Rs. 500/-, having
regard to the text of the section.
Dismissing the special leave petition, the
HELD (1) Though a final determination of a
civil right by a civil court must prevail against a like decision in a criminal
court, in the instant case, 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 and the Magistrate cannot be faulted for giving
Rs. 1000/- on this score. [784 D-F] (2) Sections of Statutes calling for
construction by Courts are not petrified print, but vibrant words with social
functions to fulfil The brooding presence of the constitutional empathy for the
weaker sections like women and children, must inform interpretation if it has
to have social relevance. [785B-C] (3) The provision in Section 125 of the Code
of Criminal Procedure is a measure of social justice and specially enacted to
protect women and children and falls within the constitutional sweep of Article
15(3) reinforced by Art. 39.
[785 B] (4) 'In the whole' in the context
means working all the items of maintenance together not all the members of the
family put together. This interpretation accords with social justice and
semantics and, is obvious. [787 B] (5) Each claimant for maintenance, be he or
she, wife, child, father, or mother is independently entitled to maintenance
upto a maximum of Rs 500/-. Indeed an opposite conclusion may lead to
absurdity. Therefore, courts cannot agree to the obvious jurisdictional
inequity 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 one of the
claimants. The Magistrate did not exceed his powers while awarding Rs. 1000/-
for mother and children all together.
[786G, 787A] Prabhavati v. Sumatilal, AIR
1954 Bom. 546 (FB); Md. Bashir v. Noor Jahan Begum,  Crl. LJ. 553 (Cal.);
783 (6) Mere divorce does not end the right
Whether the appeal ends in divorce or no, the
wife's claim for maintenance qua wife under the definition contained in
Explanation (b) to s. 125 of the Code continues, unless parties make
adjustments and come to terms regarding the quantum or the right to
maintenance. [788 C-D]
CRIMINAL APPELLATE JURISDICTION : Special
Leave Petition (Criminal) No. 1268 of 1977.
From the Judgment and Order dated 5-9-1977 of
the Delhi High Court in Criminal Revision No. 224 of 1977.
S. T. Desai and R. Bana for the Petitioner.
Y. M. Isser, S. Balakrishnan and M. K. D.
Namboodri for the Respondent.
The Order of the Court was delivered by
KRISHNA IYER, J.-Social justice is not constitutional claptrap but fighting
faith which enlivens legislative texts with militant meaning. The points
pressed in the Special Leave Petition, which we negative, illustrate the functional
relevance of social justice as an aid to statutory interpretation.
The conjugal tribulations of Mrs. Veena, the
respondent, who hopefully married Capt. Kaushal, the petitioner, and bore two
young children by him, form the tragic backdrop to this case. The wife claimed
that although her husband was affluent and once affectionate, his romantic
tenderness turned into flagellant tantrums after he took to the skies as pilot
in the Indian Airlines Corporation. Desertion, cruelty and break-up of family followed,
that sombre scenario which, in its traumatic frequency, flaring up even into
macabre episodes consternates our urban societies. The offspring of the young
wedlock were not only two vernal innocents but two dismal litigations one for
divorce, by the husband, hurling charges of adultery, and the other for
maintenance, by the wife, flinging charges of affluent cruelty and diversion of
affection after the Airlines assignment. These are versions, not findings.
We do not enter the distressing vicissitudes
of this marital imbroglio since proceedings are pending and incidental
moralizing, unwittingly injuring one or the other party, are far from our
intent and outside the orbit of the present petition. Even so, we cannot help
but observe that the current Indian ethos rightly regards the family and its
stability as basic to the strength of the social fabric and the erotic doctrine
of 'sip every flower and change every hour' and the philosophy of philandering
self-fulfilment, unless combated on the militant basis of gender justice and
conditions of service, are fraught with catastrophic possibilities. AR public
sector (why, private sector too) institutions, including the Airlines, must
manifest, in their codes of discipline, this consciousness of social justice and
inner morality as essential to its life style.
Lascivious looseness of man or wife is an
infectious disease and marks the beginning of the 784 end of the material and
spiritual meaning of collective life. The roots of the rule of law lie deep in
the collective consciousness of a community and this sociological factor has a
role to play in understanding provisions like Section 125 Criminal Procedure
Code which seek to inhibit neglect of women and children, the old and the
infirm. A facet of this benignancy of Section 125 falls for study in the
The husband sought divorce through the civil
court and the wife claimed maintenance through the criminal Court. As an
interim measure, the District Court awarded maintenance and the High Court fixed
the rate at 400/- per mensem for the spouse as a provisional figure. Meanwhile,
the magistrate, on the evidence before him, ordered ex-parte, monthly
maintenance at Rs. 1000/- for the mother and two children together.
Sri S. T. Desai urged two points which merit
reflection but meet with rejection. They are that : (i) a civil court's
determination of the quantum is entitled to serious weight and the criminal
court, in its summary decision, fell into an error in ignoring the former; (ii)
the awardable maximum for mother and children, as a whole under Section 125 of
the Code was Rs. 500/- having regard to the text of the section.
Broadly stated and as an abstract
proposition, it is valid to assert, as Sri Desai did, that 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
Therefore, barring marginal relevance for the
Magistrate it does not bar his jurisdiction to award a higher maintenance.
We cannot, therefore, fault the Magistrate
for giving Rs. 1000/- on this score.
The more important point turns on the
construction of section 125, Crl. Procedure Code which is a reincarnation of
section 488 of the old Code except for the fact that parents also are brought
into the category of persons eligible for maintenance and legislative
cognizance is taken of the devaluation of the rupee and the escalation of
living costs by raising the maximum allowance for maintenance from Rs. 100/- to
Rs. 500/-. The relevant portion of the section reads "125. (i) if any
person having sufficient means neglects or refuses to maintain- (a) his wife,
unable to maintain herself, or 785 (b) his legitimate or illegitimate minor
child, whether married or not, unable to maintain itself, or 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." This provision is a measure of
social justice and specially enacted to protect women and children and falls
within the constitutional sweep of Article 15(3) reinforced by Article
39. We have no doubt that sections of
statutes calling for construction by Courts are not petrified print but vibrant
words with social functions to fulfill. The brooding presence of the
constitutional empathy for the weaker sec- tions like women and children must
inform interpretation if it has to have social relevance. So viewed, it is
possible to be selective in picking out that interpretation out of two
alternatives which advance the cause he cause of the derelicts.
Sri Desai contends that section 125 of the
Code has clearly fixed the ceiling of the monthly allowance "for the
maintenance of.... wife or such child, father or mother, at such monthly rate
not exceeding five hundred rupees in the whole". Assuming the Parliament
not to be guilty of redundancy it is argued that the words "in the
whole" mean that the total award- for wife, child, father or mother
together cannot exceed Rs. 500/-. We do not agree. Both presidentially and
interpretatively the argument is specious.
The words which connote that the total, all
together, cannot exceed Rs. 500/- namely "in the whole' have been
inherited from the previous Code although some ambiguity in the sense of the
clause is injected by these words. Clarity, unfortunately, has not been a
strong point of our draftsmanship, at least on occasions, and litigation has
been engendered by such deficiency. Luckily, these words have been subject to
decisions which we are inclined to adopt as correct. A Full Bench of the Bombay
High Court in Prabhavati v. Sumatilal(1) has held that the sum specified is not
compendious but separate. Chagla C.J. explained the position correctly, if we
may say so with respect :
"The suggestion that the jurisdiction of
the Magistrate is limited to allowing one hundred rupees in respect of
maintenance of the wife and the children jointly is, in our opinion, an
impossible construction once it is accepted that the right of the wife and of
each child is an independent right. Such a construction would lead to extremely
If, for instance, a wife applies for
maintenance for herself and for her children and the Magistrate allows a
maintenance of one hundred rupees, and if thereafter an (1) A.I.R. 1954 Bom.
546 786 illegitimate child were to come forward and to make an application for
maintenance, the Magistrate having allowed an allowance to her up to the
maximum of his jurisdiction would be prevented from making any order in favour
of the illegitimate child. Or, a man may have more than one wife and he may
have children by each one of the wives. If the suggestion is that maintenance
can be, allowed in a compendious application to be made and such maintenance
cannot exceed one hundred rupees for all the persons applying for maintenance,
then in a conceivable case a wife or a child may be deprived of maintenance
altogether under the section.
The intention of the Legislature was clear,
and the intention was to cast an obligation upon a person who neglects or
refuses to maintain his wife or children to carry out his obligation towards
his wife or children. The obligation is separate and independent in relation to
each one of the persons whom he is bound in law to maintain. it is futile to
suggest that in using the expression "in the whole" the Legislature
was limiting the jurisdiction of the Magistrate to passing an order in
respect--Of all the persons whom he is bound to maintain allowing them
maintenance not exceeding a sum of one hundred rupees." Meeting the rival
point of view Chief Justice Chagla held :
". . . . we are unable to accept the
view taken by the Division Bench that the jurisdiction of the Magistrate is
confined to making a compendious order allowing one hundred rupees in respect
of all the persons liable to be maintained." A recent ruling of the
Calcutta High Court in Md. Bashir v. Noon Jahan Begum(1) has taken a similar
view reviewing the case law in India on the subject. We agree with Talukdar, J.
who quotes Mr. Justice Macardie:
"All law must progress or it must perish
in the esteem of man." In short the decided cases have made a sociological
approach to, conclude that each claimant for maintenance, be he or she wife,
child, father or mother, is independently entitled to maintenance up to a
maximum of Rs. 500/-.
Indeed, an opposite conclusion may lead to
absurdity. 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- (1) 1971 Crl.L.J.
787 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. We cannot, therefore, agree to
this obvious jurisdictional inequity 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 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. To our mind, this interpretation accords with
social justice and semantics and, more than all, is obvious :
"It is sometimes more important to
emphasize the obvious than to elucidate the obscure." -Attributed to
Oliver Wendell Holmes.
We admit the marginal obscurity in the
diction, of the section but mind creativity in interpreting the provision
dispels all doubts. We own that Judges perform a creative function even in
"All the cases in this book are
examples, greater or smaller, of this function".
writes Prof. Griffith in the Politics of the
Judiciary.(1) The conclusion is inevitable, although the argument to the
contrary is ingenious, that the Magistrate did not exceed his powers while
awarding Rs. 1000/- for mother and children all together.
We have been told by Shri S. T. Desai that
the divorce proceeding terminated adversely to his client but an appeal is
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
We make the position clear lest confusion
should breed fresh litigation.
The special leave petition is dismissed.
ORDER (22-8-78) Noticing a patent error which
has unfortunately crept in the above judgment in the last paragraph thereof,
counsel on both sides were given notice to appear and they were heard.
Section 125(1), Explanation (b) of the Cr.
P.C. reads "Wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried." The last
paragraph in the judgment concludes with the statement "If the appeal ends
in divorce being decreed, the wife's claim for (1) J.A.G. Griffith 'The
Politics of the Judiciary' p. 175.
788 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." 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 u/S.
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 sec. 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." We regret the error and pass this
order under Art. 137 of the Constitution with the consent of both sides so that
the ends of justice and the law that this Court lays down may be vindicated.
S. R. Petition dismissed.