Vs. Sita Bai  Insc 1179 (27 November 2007)
Arijit Pasayat & Aftab Alam
APPEAL NO. 1627 OF 2007 (Arising out of SLP (Crl.) No.4379 of 2006) Dr. ARIJIT
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.
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
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
Revision petition was filed by the present appellant.
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.
Section 125 Cr.P.C. reads as follows:
(1) If any person having sufficient means neglects or refuses to maintain
wife, unable to maintain herself, or
legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
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
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:
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,
means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875), is deemed not to have attained his majority;
includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried."
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.";]
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
[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
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:
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
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.
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.
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."
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).
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.
there is an inseparable condition which has also to be satisfied that the wife
was unable to maintain herself.
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.
an illustrative case where wife was surviving by begging, would not amount to
her ability to maintain herself.
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.
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.
being so there is no scope for interference in this appeal which is dismissed.