{"id":780,"date":"2009-12-10T12:24:48","date_gmt":"2009-12-10T06:54:48","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=780"},"modified":"2009-12-10T12:24:48","modified_gmt":"2009-12-10T06:54:48","slug":"1627-2007","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/1627-2007\/","title":{"rendered":"Unable to maintain herself in Maintenance"},"content":{"rendered":"

Supreme Court of India<\/strong><\/p>\n

Bench: A Pasayat, A Alam
\nCASE NO.:Appeal (crl.) 1627 of 2007<\/p>\n

PETITIONER: Chaturbhuj<\/p>\n

RESPONDENT: Sita Bai<\/p>\n

DATE OF JUDGMENT: 27\/11\/2007<\/p>\n

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM<\/p>\n

JUDGMENT:
\nJ U D G M E N T<\/p>\n

CRIMINAL APPEAL NO. 1627 OF 2007<\/p>\n

(Arising out of SLP (Crl.) No.4379 of 2006)<\/p>\n

Dr. ARIJIT PASAYAT, J.<\/p>\n

1. Leave granted.<\/p>\n

2. 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
\nProcedure, 1973 (in short ‘Cr.P.C.’). The challenge before the High Court was to
\nthe order passed by learned Judicial Magistrate, First Class, Neemuch, M.P. as
\naffirmed by the learned Additional Sessions Judge, Neemuch, M.P. The respondent
\nhad filed an application under Section 125 of Cr.P.C. claiming maintenance from
\nthe appellant. Undisputedly, the appellant and the respondent had entered into
\nmarital knot about four decades back and for more than two decades they were
\nliving separately. In the application it was claimed that she was unemployed and
\nunable to maintain herself. Appellant had retired from the post of Assistant
\nDirector of Agriculture and was getting about Rs.8,000\/- as pension and a
\nsimilar amount as house rent. Besides this, he was lending money to people on
\ninterest. The appellant claimed Rs.10,000\/- as maintenance. The stand of the
\nappellant was that the applicant was living in the house constructed by the
\npresent appellant who had purchased 7 bighas of land in Ratlam in the name of
\nthe applicant. She let out the house on rent and since 1979 was residing with
\none of their sons. The applicant sold the agricultural land on 13.3.2003. The
\nsale proceeds were still with the applicant. The appellant was getting pension
\nof about Rs.5,700\/- p.m. and was not getting any house rent regularly. He was
\ngetting 2-3 thousand rupees per month. The plea that the appellant had married
\nanother lady was denied. It was further submitted that the applicant at the
\nrelevant point of time was staying in the house of the appellant and electricity
\nand water dues were being paid by him. The applicant can maintain herself from
\nthe money received from the sale of agricultural land and rent. Considering the
\nevidence on record, the trial Court found that the applicant-respondent did not
\nhave sufficient means to maintain herself.<\/p>\n

3. Revision petition was filed by the present appellant. Challenge was to the
\ndirection to pay Rs.1500\/- p.m. by the trial Court. The stand was that the
\napplicant was able to maintain herself from her income was reiterated. The
\nrevisional court analysed the evidence and held that the appellant’s monthly
\nincome was more than Rs.10,000\/- and the amount received as rent by the
\nrespondent-claimant was not sufficient to maintain herself. The revision was
\naccordingly dismissed. The matter was further carried before the High Court by
\nfiling an application in terms of Section 482 Cr.P.C. The High Court noticed
\nthat the conclusions have been arrived at on appreciation of evidence and,
\ntherefore, there is no scope for any interference.<\/p>\n

4. Section 125 Cr.P.C. reads as follows:<\/p>\n

“125. (1) If any person having sufficient means neglects or refuses to
\nmaintain\u0017<\/p>\n

(a) his wife, unable to maintain herself, or<\/p>\n

(b) his legitimate or illegitimate minor child, whether married or not, unable
\nto maintain itself, or<\/p>\n

(c) his legitimate or illegitimate child (not being a married daughter) who
\nhas attained<\/p>\n

majority, where such child is, by reason of any physical or mental abnormality
\nor injury unable to maintain itself, or<\/p>\n

(d) his father or mother, unable to maintain himself or herself,<\/p>\n

a Magistrate of the First Class may, upon proof of such neglect or refusal,
\norder such person to make a monthly allowance for the maintenance of his wife or
\nsuch child, father or mother, at such monthly rate not exceeding five hundred
\nrupees in the whole, as such Magistrate thinks fit, and to pay the same to such
\nperson as the Magistrate may from time to time direct:<\/p>\n

Provided that the Magistrate may order the father of a minor female child
\nreferred to in clause (b) to make such allowance, until she attains her
\nmajority, if the Magistrate is satisfied that the husband of such minor female
\nchild, if married, is not possessed of sufficient means.<\/p>\n

Explanation .\u0017For the purposes of this Chapter,\u0017 (a) ‘minor’ means a person who,
\nunder the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not
\nto have attained his majority;<\/p>\n

(b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce
\nfrom, her husband and has not remarried.”<\/p>\n

[“(2) Any such allowance for the maintenance or interim maintenance and expenses
\nof proceeding shall be payable from the date of the order, or, if so ordered,
\nfrom the date of the application for maintenance or interim maintenance and
\nexpenses of proceeding, as the case may be.”;]<\/p>\n

(3) If any person so ordered fails without sufficient cause to comply with the
\norder, any such Magistrate may, for every breach of the order, issue a warrant
\nfor levying the amount due in the manner provided for levying fines, and may
\nsentence such person, for the whole, or any port of each month’s allowance 4
\n[allowance for the maintenance or the interim maintenance and expenses of
\nproceeding , as the case may be] remaining unpaid after the execution of the
\nwarrant, to imprisonment for a term which may extend to one month or until
\npayment if sooner made: Provided that no warrant shall be issued for the
\nrecovery of any amount due under this section unless application be made to the
\nCourt to levy such amount within a period of one year from the date on which it
\nbecame due:<\/p>\n

Provided further that if such person offers to maintain his wife on condition of
\nher living with him, and she refuses to live with him, such Magistrate may
\nconsider any grounds of refusal stated by her, and may make an order under this
\nsection notwithstanding such offer, if he is satisfied that there is just ground
\nfor so doing. Explanation.-If a husband has contracted marriage with another
\nwoman or keeps a mistress, it shall be considered to be just ground for his
\nwife’s refusal to live with him.<\/p>\n

(4) No wife shall be entitled to receive an 4 [allowance for the maintenance or
\nthe interim maintenance and expenses of proceeding , as the case may be] from
\nher husband under this section if she is living in adultery, or if, without any
\nsufficient reason, she refuses to live with her, husband, or if they are living
\nseparately by mutual consent.<\/p>\n

(5) On proof that any wife in whose favour an order has been made under this
\nsection is living in adultery, or that without sufficient reason she refuses to
\nlive with her husband, or that they are living separately by mutual consent, the
\nMagistrate shall cancel the order.”<\/p>\n

5. The object of the maintenance proceedings is not to punish a person for his
\npast neglect, but to prevent vagrancy by compelling those who can provide
\nsupport to those who are unable to support themselves and who have a moral claim
\nto support. The phrase “unable to maintain herself” in the instant case would
\nmean that means available to the deserted wife while she was living with her
\nhusband and would not take within itself the efforts made by the wife after
\ndesertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice
\nand is specially enacted to protect women and children and as noted by this
\nCourt in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978
\nSC 1807) falls within constitutional sweep of Article 15(3) reinforced by
\nArticle 39 of the Constitution of India, 1950 (in short the ‘Constitution’). It
\nis meant to achieve a social purpose. The object is to prevent vagrancy and
\ndestitution. It provides a speedy remedy for the supply of food, clothing and
\nshelter to the deserted wife. It gives effect to fundamental rights and natural
\nduties of a man to maintain his wife, children and parents when they are unable
\nto maintain themselves. The aforesaid position was highlighted in Savitaben
\nSomabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).<\/p>\n

6. Under the law the burden is placed in the first place upon the wife to show
\nthat the means of her husband are sufficient. In the instant case there is no
\ndispute that the appellant has the requisite means.<\/p>\n

7. But there is an inseparable condition which has also to be satisfied that the
\nwife was unable to maintain herself. These two conditions are in addition to the
\nrequirement that the husband must have neglected or refused to maintain his
\nwife. It is has to be established that the wife was unable to maintain herself.
\nThe appellant has placed material to show that the respondent-wife was earning
\nsome income. That is not sufficient to rule out application of Section 125
\nCr.P.C. It has to be established that with the amount she earned the respondent-
\nwife was able to maintain herself.<\/p>\n

8. In an illustrative case where wife was surviving by begging, would not amount
\nto her ability to maintain herself. It can also be not said that the wife has
\nbeen capable of earning but she was not making an effort to earn. Whether the
\ndeserted wife was unable to maintain herself, has to be decided on the basis of
\nthe material placed on record. Where the personal income of the wife is
\ninsufficient she can claim maintenance under Section 125 Cr.P.C. The test is
\nwhether the wife is in a position to maintain herself in the way she was used to
\nin 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.<\/p>\n

9. In 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. That being so there is no scope for interference in this appeal which is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"

Supreme Court of India Bench: A Pasayat, A Alam CASE NO.:Appeal (crl.) 1627 of 2007 PETITIONER: Chaturbhuj RESPONDENT: Sita Bai DATE OF JUDGMENT: 27\/11\/2007 BENCH:…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[3175,1678,119,1368,2463],"class_list":["post-780","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-aftab-alam","tag-dr-arijit-pasayat","tag-maintenance","tag-section-125-crpc","tag-section-482"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/780","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=780"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/780\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=780"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=780"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=780"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}