Rajathi
V. C. Ganesan [1999] INSC 226 (22 July 1999)
S.Saghir
Ahmad, D.P.Wadhwa D.P. WADHWA,J.
Leave
granted.
This
is wife's appeal against order dated December 4, 1997 of the Madras High Court passed in
exercise of its jurisdiction under Section 482 of the Criminal Procedure Code
('Code' for short). By This order wife was deprived of maintenance of Rs.200/-
per month granted to her under Section 125 of the Code.
Wife
presented a petition under Section 125 of the Code on February 3, 1993 claiming from her husband, the
respondent, maintenance for herself and her two daughters.
The
minor son of the parties is living with the husband. In the present appeal we
are concerned with the grant of maintenance to the wife. She alleged that her
husband having sufficient means neglected or refused to maintain her and that
she was unable to maintain herself. In the petition wife had claimed
maintenance at the rate of Rs.500/- per month.
Learned
Judicial Magistrate, by order dated April 24, 1995, granted her maintenance only at
the rate of Rs.200/- per month. Husband felt aggrieved and he went in revision
to the Court of Sessions. The learned Sessions Judge, Salem, by order dated November 5, 1996 dismissed the revision petition
filed by the husband and confirmed the order of grant of maintenance to the
wife at the rate of Rs.200/- per month. Still feeling aggrieved husband filed a
petition under Section 482 of the Code in the Madras High Court. This was
allowed by learned single Judge, who by the impugned order, set aside the
orders both of the Judicial Magistrate and the Sessions Judge and dismissed the
petition of the wife for maintenance. Now the wife has come to this Court.
Proceedings
under Section 125 of the Code are of summary nature. This Section is meant to
provide immediate relief to the wife, minor children and parents, who are
unable to maintain themselves. A maximum of Rs.500/- per month can be granted
to the wife under this Section. This will be when husband having sufficient
means neglects or refuses to maintain her, she being unable to maintain
herself. Section 125 we may quote in extenso:- "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 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)
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 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 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 sufficient reason she refuses to live with
her husband, or that they are living separately by mutual consent, the
Magistrate shall cancel the order." If we refer to proviso to sub-section
(3) of Section 125 where a husband offers to maintain his wife on the condition
of her living with him and she refuses to live with him a Magistrate may
consider any ground of refusal stated to her and nevertheless make an order
notwithstanding such offer, if the Magistrate is satisfied that there is just
ground for so doing. Explanation to the proviso states that if a husband has
contracted marriage with any other woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live with him.
In the
present case wife alleged that her husband had contracted a second marriage on January 4, 1990. She filed a complaint for an
offence under Section 494 of the Indian Penal Code. It is stated that 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. 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 maintain 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 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 Adoption and Maintenance 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 agains
t her wish, or of willfully 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.
We are
not going into the question if the High Court on examining the case on merit
was correct in coming to the conclusion that the wife was possessed of
sufficient means and was able to maintain herself. In the present appeal, We
are only concerned to see if the High Court was justified in invoking its
inherent powers under Section 482 of the Code and we do not think the High
Court was right.
In
Krishnan & Anr. vs. Krishnaveni & Anr. [(1997) 4 SCC 241] this Court
explained the scope and power of the High Court under Section 482 of the Code.
The question before the Court was if in view of the bar of second revision
under sub-section (3) of Section 397 of the Code was prohibited, inherent power
of the High Court is still available under Section 482 of the Code. This Court
said as under :
"Ordinarily,
when revision has been barred by Section 397(3) of the Code, a person -
accused/complainant - cannot be allowed to take recourse to the revision to the
High Court under Section 397(1) or under inherent powers of the High Court
under Section 482 of the Code since it may amount to circumvention of the
provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the
High Court has suo motu power under Section 401 and continuous supervisory
jurisdiction under Section 483 of the Code. So, when the High Court on
examination of the record finds that there is grave miscarriage of justice or
abuse of the process of the courts or the required statutory procedure has not
been complied with or there is failure of justice or order passed or sentence
imposed by the Magistrate requires correction, it is but the duty of the High
Court to have it corrected at the inception lest grave miscarriage of justice
would ensue. it is, therefore, to meet the ends of justice or to prevent abuse
of the process that the High Court is preserved with inherent power and would
be justified, under such circumstances, to exercise the inherent power and in
an appropriate case even revisional power under Section 397(1) read with
Section 401 of the Code. As stated earlier, it may be exercised sparingly so as
to avoid needless multiplicity of procedure, unnecessary delay in trial and
protraction of proceedings. The object of criminal trial is to render public
justice, to punish the criminal and to see that the trial is concluded
expeditiously before the memory of the witness fades out. The recent trend is
to delay the trial and threaten the witness or to win over the witness by
promise or inducement. These malpractices need to be curbed and public justice
can be ensured only when trial is conducted expeditiously." In the present
case, the High Court minutely examined the evidence and came to the conclusion
that the wife was living separately without any reasonable cause and that she
was able to maintain herself. All this High Court did in exercise of its powers
under Section 482 of the Code which powers are not a substitute for a second
revision under sub-section (3) of Section 397 of the Code. The very fact that
the inherent powers conferred on the High Court are vast would mean that these
are circumscribed and could be invoked only on certain set principles.
It was
not necessary for the High Court to examine the whole evidence threadbare to
exercise jurisdiction under Section 482 of the Code. Rather in a case under
Section 125 of the Code trial court is to take a prima facie view of the matter
and it is not necessary for the court to go into the matrimonial disputes
between the parties in detail. Section provides maintenance at the rate of
Rs.500/- per month.
There
is outcry that this amount is too small. In the present case, however, we are
quite surprised that the court granted paltry amount of Rs.200/- per month as
maintenance which was confirmed in the revision by the Sessions Court and the
High Court thought it fit to interfere under Section 482 of the Code in
exercise of its inherent jurisdiction.
Whatever
may be the merit of the case, High Court wrongly exercised its jurisdiction
under Section 482 of the Code in passing the impugned order. The appeal is
allowed and the impugned order dated December 4, 1997 of the High Court is set aside.
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