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Report No. 132

3.6. Need to set right an injustice arising out of strained construction of the expression "unable to maintain herself" in section 125(1)(a) as a result of which maintenance has been denied to the wife on the ground that even though she may not be having any income or earning in presenting if she is an able-bodied or educated woman, she could earn her own living.-

The provision relating to maintenance was embodied in section 488 of the Code of Criminal Procedure of 1898. The material part of section 488 was in these terms:-

"488. Order for maintenance of wives and children-

(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate 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, 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 from time to time directs".

As discussed in Smt. Malan v. Baburao, 1981 Cr LJ 184 (Kant) a comparative study of this provision with the material part of the corresponding provision contained in section 125 of the Code of Criminal Procedure would show that while in section 488 of the old Code the condition "unable to maintain itself" apparently attached only to the child and not to the wife, in section 125 of the new Code, this condition has been expressly made applicable to the case of wife. But, this recasting of the old Code provision does not signify any fundamental change in the law and it has been done merely to clarify and make explicit what was formerly implicit.

This phrase was introduced for the first time in the Code of 1973 presumably in the context of the controversy as to whether the separate income of the wife can be taken into account in determining the amount of maintenance payable to her under section 488 of the Code of Criminal Procedure, 1893. The Delhi High Court1 and the Punjab High Court2 had taken the view that the separate income of the wife could not be taken into account in determining the quantum of maintenance payable to the wife.

This controversy was ultimately settled by the Supreme Court in Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83 wherein the decisions or the Bella and Punjab. High Court3 were overruled and the view taken by the Kerala High Courts that the separate income of the wife can be taken into consideration was approved. Since the law had not been settled when the Code of 1973 was enacted by Parliament, the phrase "unable to maintain herself" was introduced in section 125(1)(a) of the Code of Criminal Procedure, 1973. But the introduction of this expression gave rise to a number of unforeseen and unintended hurdles in the way of a woman in distress needing maintenance:

(1) Some courts sustained the hyper-technical plea that in the absence of an averment in the petition claiming maintenance expressly stating that the petitioner-wife war, "unable to maintain herself", the petition deserved to be rejected without anything more.

(2) Some courts sustained the plea that if a wife claiming maintenance was healthy and able-bodied or if she was educated, she had the potentiality to maintain herself and that accordingly she was not entitled to maintenance under section 125(1)(a).

So far as the first point is concerned, the view has been reversed subsequently in most of the High Court4 and it does not call for any remedial measure, particularly in the enlightened climate of the eighties when courts have been showing greater awareness of the problems of the women and have been dealing with such problems with sensitivity. So far as the second obstacle is concerned, the problem survives only in the context of two High Courts, namely, Karnataka and Kerala High Courts. The phrase "unable to maintain herself" has been construed by these two High Courts as warranting taking into account the factor as regards her potential or capacity to earn and the factor as to whether she has made efforts to earn for herself. Says the Kerala High Court:5

"Again in this case the petitioner for whom maintenance is claimed is aged 22 years. She is a fairly well educated lady, healthy and is not stated to be suffering from any illness. Such a person should be presumed capable of maintaining herself until the contrary is proved. The burden of proving that she is not capable of maintaining herself is on her and if she fails to adduce sufficient proof the Magistrate would be perfectly justified in disallowing her claim for maintenance. If a person is a minor there can be no presumption that he or she is able to maintain himself: On both these grounds the order of the learned First Class Magistrate is correct and calls for no interference. The Revision Petition is dismissed".

1. Nanak Chand v. Chander Kishore, AIR 1969 Del 235.

2. Major Joginder Singh v. Bibi Raj Mohinder Kaur, AIR 1960 Punj 249.

3. P.T. Ramankutty Achan v. Kalyanikutty, AIR 1971 Ker 22.

4. Malan v. Baburao, 1981 Cr LJ 184 (Kant); Aijaz Ahmed v. Shahjehan Begum, 1982 Cr LJ 1022 (All); Uadivir Singh v. Vinod Kumari, 1985 Cr LJ 1923 (All).

5. Saraswati v. Madhavan, 1961 (2) Cr LJ 642 (644) (Ker).

The Karnataka High Court has endorsed1 this view and observed:-

"Now it is to be seen whether a presumption as laid down by the Lahore High Court in Mahomed Yar's case (1941-42 Cri LJ 439) and the Kerala High Court in Saraswathi's [(1961) 2 Cri LJ 640] that a normal hale and healthy person, may be fairly educated also, is presumed to be able to maintain oneself, does arise in this context. I am constrained to hold with great respect that the presumption can only be to the extent of concluding that a normal healthy person may be fairly educated, is capable of earning. It cannot extend to conclude that such earning would be sufficient to maintain such a person. The fact that she has refused to earn for herself may be taken into consideration while considering the quantum of maintenance that the husband is liable to contribute towards maintenance, as is the view expressed by the Supreme Court."

1. Abdul Manaf v. Salima, 1979 Cr 14 172 (174, 175) (Kant).

The women in these two States would have to suffer because their rights would be governed by the law as interpreted by their respective High Courts. There is little doubt that if the matter reaches the Supreme Court, the view is likely to be reversed. But whether or not such a matter would eventually reach the Supreme Court and if it so reaches, whether it would come up for hearing at an early date is a matter on which it would be futile to speculate. It is also quite possible that these very High Courts might overrule the view by constituting a larger Bench.

But then till this happens, the lower courts would be bound by the law laid down by the High Court and the women in these two States would have to suffer unnecessarily. Such a situation needs to be remedied with a sense of urgency. That is why the Commission has been constrained to deal with this aspect which is peculiar to the States of Kerala and Karnataka. The Bombay High Court in Vimal v. Sukumar, 1981 Cr LJ 210 (214-215) (Bom) has taken a contrary view on the reasoning unfolded hereinafter:

"The expression "unable to maintain" is used in all these sub-clauses. Sub-section (1)(a) deals with the case of wife. Sub-section (1)(b) is concerned with providing maintenance allowance to legitimate or illegitimate minor child whereas sub-section (1)(c) deals with the question of major child who is, by reason of any physical or mental abnormality or injury is unable to maintain itself. Sub-section (1)(d) deals with the father or mother who is unable to maintain himself or herself. In sub-section (c) of section 125(1) there is intrinsic aid or evidence available for construing the expression "unable to maintain".

If by this expression the legislature intended that every able-bodied person who is otherwise able to earn, is not entitled to claim maintenance allowance under section 125, then in sub-section (c) it was not necessary for the legislature to say in express terms that the child who has attained majority will be entitled to get maintenance only if by reason of any physical or mental abnormality or injury such a child is unable to maintain itself. This provision throws light on the intention of legislature.

If the provision of sub-section (1)(a) is read in this context then in my opinion, it is quite clear that while construing the expression "unable to maintain" the concept of able-bodied person's ability to earn cannot be imported. The expression "unable to maintain herself" connotes the situation wherein it is not possible for the wife to maintain herself from any other source, meaning thereby wherein it is demonstrated that but for the maintenance allowance claimed from her husband, she has no other source or means of maintenance.

It is well-known that merely because a person is able bodied and does not suffer from any physical or mental disability, he is not always able to earn. Ability to earn many times depends upon several other factors, such as, education, experience, finances, family tradition etc. In the competitive employment market mere physical ability is not the only qualification required for getting a job. In a country where economic independence of the wife is still a rarity, such a situation would never have been intended by the legislature.

As observed by the Supreme Court in Bai Tahira's case, (1979 Cri LJ 151), Article 15(3) has compelling compassionate relevance in the context of section 125 and benefit of doubt, if any, in statutory interpretation belongs to ill-used wife. Protection against moral and material abandonment manifest in Article 39 is part of social and economic justice specified in Article 30, fulfilment of which is fundamental to the governance of country (Article 37).

In Nanak Chand v. Chandra Kishore, AIR 1970 SC 446: 1970 Cri LJ 522, the Supreme Court had an occasion to consider the scope of word 'child' as used in Section 488 of Old Criminal Procedure Code. It was held by the Supreme Court in the said decision that the said word does not mean minor son or daughter but the real intention is contained in the expression 'unable to maintain itself'. Then in para 9 of the said judgment a reference was made to the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps. Then in para 13 of the said decision, namely Nanak Chand's case the Supreme Court observed as under:-

"Coming to the third point raised by the learned counsel we are of the view that the learned Additional Sessions Judge and the High Court were right in taking into consideration the existing situation, the situation being that at the time the order was passed Chandra Kishore was a student of M. Corn. and Ravindra Kishore was a student of M.B.B.S. Course".

Thus, while considering the question as to whether major children were entitled to maintenance, the Supreme Court took into consideration "the existing situation" only and did not consider the said question in the light of their physical ability or capacity to earn. Therefore while considering the question as to whether the wife or child is "unable to maintain herself or itself', the existing situation alone is relevant and if the wife is not possessed of sufficient means to maintain herself then it will have to be held that she is unable to maintain herself."

The Commission is satisfied that the view taken by the Kerala and Karnataka High Courts is patently erroneous and the reasoning of the Bombay High Court in Vimal's case is unexceptionable. There is no warrant to inject the concept of 'potentiality to earn' in the phrase "unable to maintain herself" occurring in section 125(1)(a) . This expression was introduced in 1973 in the context of the unsettled position of law as to whether or not a wife who had her independent source of income sufficient to maintain herself could even so claim maintenance from her husband. This is. evident from the report of the Joint Committee1 wherein the rationale for introducing this phrase has been made explicit:

1. Report of the Joint Committee on the Code of Criminal Procedure Bill, 1970.

"In the case of wife, the order can be passed only if she is unable to maintain herself. Having regard to the object behind these provisions, which is mainly to prevent vagrancy, there is in the Committee's opinion, no need to compel the husband to pay maintenance to a wife who is possessed of sufficient means."

The only condition which is required to be satisfied in order to claim maintenance under section 125(1)(a) is that the wife has no income or no adequate income of her own from which she can maintain herself on the date of the institution of the petition. Whether or not she had the potential to secure an employment and/or to earn any income by exerting herself is a matter within the realm of conjecture. It is common knowledge that there is widespread unemployment and even if the wife makes effort to secure employment, she may not be able to secure a suitable employment. At times she may not feel safe in securing employment even if it is available.

To enter into this arena of possibilities in order to assess the potential of the wife would be an exercise in speculation and would unnecessarily prolong the litigation and would defeat the very purpose of claiming maintenance. The provision is incapable of the interpretation which has been placed by the Kerala and Karnataka High Courts unless one is unmindful of rendering the provision otiose and purposeless. Since, however, the decision rendered by these High Courts hold the field as at present, the Commission is of the opinion that an Explanation should be added to section 125(1) that the phrase "unable to maintain herself" concerns itself with the actual separate income, if any, of the wife and not with the possibility or potentiality of the wife being able to earn for herself by securing employment or by exerting herself.

Need for Amendment of the Provisions of Chapter IX of the Code of Criminal Procedure, 1973 in order to Ameliorate the hardship and mitigate the distress of Neglected Women, Children and Parents Back

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