HIGH COURT OF BOMBAY
Criminal Application No. 3237 of 1976
Bench: JUSTICE HIGH COURT OF BOMBAY
Sharadchandra Chandrashekhar Satbhai
Indubai Sharad Satbhai On 25 Aug 1977
1. The postulant is a father of respondent No. Indubai. Indubai filed an focus underneath Section 125, Criminal Procedure Code 1973, for upkeep for herself and dual teenager children. Each of a minors was awarded stipend of Rs. 30 per month. But as regards Indubai’s possess maintenance, a focus was rejected. Being depressed of a pronounced order, Indubai went in revision. The Revisional Court by a sequence antiquated Sep 30, 1976 postulated upkeep to Indubai during a rate of Rs. 60 per month from Oct 1, 1976. The father seeks to stifle this sequence underneath Article 227 of a Constitution.
2. The few contribution are that a postulant and Indubai were married in Jan 1963. At a time of marriage, a postulant was portion in a Police Department of Madhya Pradesh. The matrimonial home of a parties was during Indore upto Apr 1969. From a wedlock, a daughter Bhatabai alias Damayanti and a son Raju were born. On or about Apr 14, 1969, Indubai left Indore with a dual teenager children though informing a petitioner. The postulant done several attempts by letters and personal visits to Dhule to move behind Indubai, though she refused to go behind to a postulant and so continued to stay divided from a matrimonial home. In these circumstances, a postulant filed Civil Suit No. 10 of 1971 in a Court of a District Judge during Indore for a direct for legal subdivision on a belligerent that Indubai had forlorn a postulant for a continual duration of some-more than dual years. That petition was motionless ex parte as Indubai did not select to enter appearance. On a evidence, a schooled District Judge, Indore, hold that Indubai had designedly forlorn a postulant for a continual duration of over dual years before a display of a petition for legal subdivision and accordingly a direct for legal subdivision was upheld on Aug 4, 1973. In 1974, Indubai filed a benefaction application. Her explain for upkeep was forlorn by a schooled Judicial Magistrate, First Class, Dhule, as, in his view, he could not lay in visualisation over a sequence of schooled District Judge of Indore holding that Indubai had forlorn a petitioner, and, therefore, she was not entitled to accept monthly stipend in outline record underneath Section 125 of a Criminal Procedure Code, 1973.
3. The Revisional Court in permitting a focus was guided by a observations of a Andhra Pradesh High Court in a box of K. Raza Khan v. Mumtaz Khatoon MANU/AP/0211/1975. The perspective voiced in that box is that underneath Section 125(1) even a lady who has been divorced by her father before Apr 1, 1974 can explain maintenance, supposing a other conditions are satisfied. It seems that a Revisional Court felt that if a advantage of Section 125(1) was accessible to a lady who has been divorced from her husband, since a lady opposite whom there is usually an sequence of legal subdivision should not get a same benefit? In this connection, a schooled Additional Sessions Judge infused his care by referring to a mins of a Joint Committee of Parliament that had celebrated that a intent of fluctuating a advantage of Section 125(1) is “to strengthen a mom from unethical father from constrained a Magistrate to boot a petition for upkeep from receiving divorce during pendency of her petition underneath Section 125, Criminal Procedure Code. A divorce can be done easy underneath a personal law germane to some of a communities in India. This causes several hardships to bad territory of a village who turn helpless.” According to a schooled Judge, a Magistrate can't reject a focus of a mom for upkeep simply since a father has constructed a direct for legal separation. Thus, ignoring a direct for legal subdivision on a belligerent of abandonment for a continual duration of over dual years, a schooled Judge supposed lndubai’s testimony and authorised a rider application.
4. Mr. Khare, schooled Counsel for a petitioner, hurdles a outcome of a pronounced sequence on a belligerent that Indubai had refused to live with a postulant though any sufficient reason and a matter was resolved between a parties in perspective of a direct for legal separation.
5. In sequence to conclude this contention, a applicable supplies of law are these. Section 10(1)(a) and a Explanation thereto of a Hindu Marriage Act, 1955, is in a following terms:
10. (1) Either celebration to a marriage, either solemnized before or after a derivation of this Act, might benefaction a petition to a district justice praying for a direct for legal subdivision on a belligerent that a other party-
(a) has forlorn a postulant for a continual duration of not reduction than dual years immediately preceding a display of a petition; or…
Explanation.-In this section, a countenance ‘desertion’, with a grammatical variations and related expressions, means a abandonment of a postulant by a other celebration to a matrimony though reasonable means and though a agree or opposite a wish of such party, and includes a designedly slight of a postulant by a other celebration to a marriage.
6. Section 125(1)(a) and Explanation (b) thereto and Sub-section (4) of Section 125 of Criminal Procedure Code, 1973, are as follows:
125. (1) If any chairman carrying sufficient means neglects or refuses to maintain-
(a) his wife, incompetent to say herself, or…
a Magistrate of a initial category may, on explanation of such slight or refusal, sequence such chairman to make a monthly stipend for a upkeep of his mom or such child, father or mother, during such monthly rate not surpassing 5 hundred rupees in a whole, as such Magistrate thinks fit, and to compensate a same to such chairman as a Magistrate might from time to time direct:
Provided that a Magistrate might sequence a father of a teenager womanlike child referred to in proviso (b) to make such allowance, until she attains her majority, if a Magistrate is confident that a father of such teenager womanlike child, if married, is not hexed of sufficient means.
Explanation.-For a functions of this Chapter,-
(b) ‘wife’ includes a lady who has been divorced by, or has performed a divorce from, her father and has not remarried.
(4) No mom shall be entitled to accept an stipend from her father underneath this territory if she is vital in adultery, or if, though any sufficient reason, she refuses to live with her husband, or if they are vital alone by mutual consent….
7. In a benefaction case, a parties are governed by a Hindu Marriage Act, 1955. Judicial subdivision is accessible on 6 grounds, one of them being abandonment within a definition of Clause (a) of Sub-section (1) of Section 10. Desertion takes place when one associate leaves a other though reasonable means and though a agree or opposite a wish of a other spouse. “Desertion” has been given wider definition by including “wilfully neglect” on a partial of a associate opposite whom petition is filed. It is not required to reconnoitre ourselves with a outcome of such a decree. Suffice it to note that this can turn a basement for a retraction of a matrimony by a direct of divorce if a conditions laid down in Section 13(1A) of a Hindu Marriage Act, 1955, are fulfilled. The direct for legal subdivision in foster of a father does not pardon him from his requirement to yield for a upkeep of his wife. The polite Court is empowered underneath Section 25 of a Hindu Marriage Act, 1955, to repair adequate remuneration by proceed of sum sum or monthly or periodical sum and secure it by a assign on a dynamic skill of a other. In fact, Section 25 is in wider terms. It not usually speaks of upkeep though also of ‘support’ that means providing with necessities as well.
8. It is, however, open to a mom who is incompetent to say herself and her father has sufficient means to say her though though neglects or refuses to do so, to make an focus underneath Section 125, Criminal Procedure Code, 1973, and find an sequence for maintenance, theme to a conditions and stipulations of that section. Explanation (b) of Section 125(1) clarifies that even if she is a divorcee, she can explain upkeep supposing she is not remarried. Sub-section (4) disentitles a mom to accept stipend in certain cases, one of them being “if, though any sufficient reason, she refuses to live with her husband”. This sub-section governs a whole of Section 125. Now, in a box like a benefaction one, when a polite Court has dynamic a emanate of abandonment and hold that a mom has left her father though reasonable means and opposite his wish and though his consent, can it be pronounced that she is still entitled to upkeep underneath Section 125 and not strike by Sub-section (4)? It is plain and elementary that she has refused to live with her father though any sufficient reason and, therefore, disentitled herself to accept upkeep underneath Section 125. The outcome of a direct for legal subdivision on this sold belligerent of abandonment can't be ignored by a Magistrate traffic with an focus underneath Section 125 since he has to bear in mind a incapacity combined by Sub-section (4) of that section. The fact that a direct for legal subdivision has been upheld in foster of a father on a belligerent of abandonment means that a mom is guilty of refusing to live with her husband. In a judgment, Indubai is not entitled to upkeep underneath Section 125, Criminal Procedure Code, 1973, as she had no reasonable belligerent not to live with her husband. The proceed of a schooled Additional Sessions Judge overlooks a intent and purpose of Sub-section (4) that also governs Sub-section (1) of Section 125. It is loyal that a divorcee is entitled to proceed a Magistrate underneath Section 125 for rapid remedy. So could a mom opposite whom a direct for legal subdivision is passed, though a mom who has forlorn her father within a definition of a Explanation to Section 10(1) of a Hindu Marriage Act, 1955, as discussed above, is not entitled to request underneath Section 125 of Criminal Procedure Code, 1973.
9. Mr. Pradhan, schooled Counsel appearing for Indubai, argued that a direct for legal subdivision antiquated Aug 4, 1973 is an ex mirror direct and was performed though use of notice to her, The schooled Counsel, however, sincerely conceded that it was open to Indubai to have taken record to set aside a ex mirror direct during slightest when she came to know of a same in a benefaction proceedings. Mr. Khare settled that compartment currently a postulant has not been served with any notice for environment aside a pronounced ex parte decree. Therefore, a direct stands. It might be forked out that Sub-section (2) of Section 10 of a Hindu Marriage Act, 1955, creates a special sustenance for rescinding a direct for legal separation. Thus, it might be open to Indubai to take chance to this remedy.
10. In a opinion, a impugned sequence is upheld by a schooled Additional Sessions Judge in additional of his office and, therefore a same is probable to be set aside.
11. In a result, a impugned sequence antiquated Sep 30, 1976 upheld by a schooled Additional Sessions Judge, Dhule, is quashed. Rule done comprehensive accordingly. No sequence as to costs..