IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr.MMO No. 141 of 2018.

Date of decision: 23.04.2018.

Krishan Chand …..Petitioner.

Versus

Jagriti ….. Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1No

For the Petitioner : Mr. G. R. Palsra, Advocate.

For the Respondent : Nemo.

Tarlok Singh Chauhan, Judge (Oral).

This petition under Section 482 Cr.P.C. takes exception to

the orders passed by learned Chief Judicial Magistrate, Mandi, District

Mandi, in Criminal Case No. 294-III/2015 on 17.2.2017 under Section

12 of the Protection of Women from Domestic Violence Act, 2005 (for

short ‘Act’) and as affirmed by learned Additional Sessions Judge (II),

Mandi, District Mandi, H.P. in Criminal Appeal No. 4 of 2017 on

22.12.2017, whereby he allowed the petition filed by the respondent by

granting the following reliefs in her favour:

“44. As a sequel to the aforesaid discussion, aggrieved person
has succeeded in proving the incident of domestic violence as
defined under Section 3 of the Act. Respondent No.1 has
committed physical, verbal and emotional abuse and also
economical abuse which endanger the health and safety of the
aggrieved person. Thus, aggrieved person is entitled to the
following relief:

(A) Protection Order under Section 18 of Act:-

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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Respondents are hereby restrained from
(I) committing any act of domestic violence and

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(II) aiding or abetting in the commission of acts of domestic

violence and;

(III) causing violence to the aggrieved persons, other

relatives or any person who give the aggrieved person
assistance from domestic violence and respondent is restrained
from restraining petitioner to reside in the shared house hold
with her child and also restrained from stopping the aggrieved

person from residing in her shared house hold with her children.
The respondent is also restrained from alienating of assets or
properties of the aggrieved persons as well as their interest in

shared residence.

(B) Residence order under Section 19 of the Act:

Respondent No.1 is restrained from dispossessing or
throwing the aggrieved person from the shared house hold. The

respondent No.1 is also restrained from alienating the shared
household.

(C) Monetary Relief under Section 20 of Act:

Aggrieved person is also entitled to monetary relief under

Section 20 of the Act. Respondents are directed to pay
monetary relief i.e. amount to meet the expenses incurred and

losses suffered by her and her children at the rate of 3000/- to
the aggrieved person per month from the respondent No.1, from
the date of filing this petition. Respondent No.1 is also directed
to pay compensation amount to the tune of Rs.5000/- to the
petitioner.”

2. It is vehemently argued by Mr. G.R. Palsra, learned

counsel for the petitioner that the findings recorded by the learned

Courts below are perverse as they have failed to take into account that

the petitioner is regularly paying the maintenance to the respondent and

his daughter and even the petitioner has in fact opened a separate

bank account in the name of his daughter. The respondent as of her

own volition and without sufficient cause left the company of the

petitioner and therefore, she is not entitled to any maintenance

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whatsoever. In the alternative, it is argued that the maintenance as

otherwise awarded by the learned Court(s) below, is very much on the

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higher side and the petitioner, who was working as a waiter, is not in a

position to afford the same.

3. Before adverting to the contentions put-forth by the

petitioner, certain undisputed facts need to be noticed.

(i) The marriage of the parties and out of that wedlock,

r a daughter was born, are not denied.

(ii) The respondent has no independent source of

income, whereas the petitioner is a man of means as

he is working as a Waiter in prestigious hotel at

Manali.

(iii) The parties had entered into compromise in a

complaint earlier filed by the respondent against the

petitioner where he has undertaken not to subject

the respondent to cruelty.

4. Bearing in mind the aforesaid admitted position, the

arguments raised by the learned counsel for the petitioner need now to

be tested.

5. As regards the first contention that the respondent out of

her free will and volition left the company of the petitioner, suffice it to

say that these findings have been negated by the learned Courts below.

6. At this stage an attempt is made by learned counsel for the

petitioner to canvass that the respondent in fact is having extra marital

relation with one Abhishek, but these allegations have not been

substantiated either before the Courts below and before this Court and,

therefore, levelling of such allegations, that too, which casts a serious

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doubt in the chastity of the respondent definitely amounts to cruelty and

in such circumstances, the respondent cannot be expected to live with

.

the petitioner. Therefore, she is fully justified in living separately.

7. As regards the so called maintenance of the wife and

daughter, suffice it to say that it is the obligation of Hindu male to

maintain his wife and this is not a modern day concept but it existed

even under the Shastric Hindu Law. According to the old Shastric Hindu

Law, marriage between two Hindus is a sacrament a religious

ceremony which results in a sacred and a holy union of man and wife

by virtue of which the wife becomes a part and parcel of the body of the

husband. She is, therefore, called ‘Ardhangani’. It is on account of this

status of a Hindu wife, under the Shastric Hindu law, that a husband

was held to be under a personal obligation to maintain his wife and

when he dies, possessed of properties, then his widow was entitled, as

of right, to be maintained out of those properties.

Mulla in his classic work on “Hindu Law,” 14the Edn.,

dealing with the characteristic of the right of maintenance of a Hindu

wife observes:

“A wife is entitled to be maintained by her husband, whether he
possesses property or not. When a man with his eyes open marries a
girl accustomed to a certain style of living, he undertakes the
obligation of maintaining her in that style. The maintenance of a wife
by her husband is a matter of personal obligation arising from the very
existence of the relationship, and quite independent of the possession
by the husband of any property, ancestral or self-acquired.”

Mayne in his Treatise on “Hindu Law and Usage” 11th Edn., while

trancing the history and origin of the right of maintenance of a Hindu

wife says:-

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“The maintenance of a wife by her husband is, of course, a
matter of personal obligation, which attaches from the moment of

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marriage.”

8. The law on the subject has been elaborately dealt with by

the Hon’ble Andhra Pradesh High Court in Kota Varaprasada Rao and

another vs. Kota China Venkaiah and others AIR 1992 AP 1,

wherein it has been held as follows:

“8. The oldest case decided on the subject is one in Khetramani Dasi
v. Kashinath Das, (1868) 2 Bengal LR 15. There, the father-in-law
was sued by a Hindu widow for maintenance. Deciding the right of the

widow for maintenance, the Calcutta High Court referred to the

Shastric law as under:

“The duty of maintaining one’s family is, however, clearly laid
down in the Dayabhaga, Chapter II, Section XXIII, in these words:

‘The maintenance of the family is an indispensable obligation, as
Manu positively declares.’ Sir Thomas Strange in his work on Hindu
Law Vol. I page 67, says:

‘Maintenance by a man of his dependants is, with the Hindus,

a primary duty. They hold that he must be just, before he is generous,
his charity beginning at home; and that even sacrifice is mockery, if to
the injury of those whom he is bound to maintain. Nor of his duty in

this respect are his children the only objects, co-extensive as it is with
the family whatever be its composition, as consisting of other relations
and connexions, including (it may be) illegitimate offspring. It
extends according to Manu and Yajnavalkya to the outcast, if not to
the adulterous wife; not to mention such as are excluded from the
inheritance, whether through their fault, or their misfortune; all being
entitled to be maintained with food and raiment.”
At page 21, the learned Judges have also referred to a situation
where there is nothing absolutely for the Hindu widow to maintain
herself from the parents-in-law’s branch by referring to the following
texts from NARADA:

“In Book IV, Chapter I Section I, Art. XIII of Celebrooke’s Digest, are
the following texts from NARADA:

‘After the death of her husband, the nearest kinsman on his
side has authority over a woman who has no son; in regard to the
expenditurte of wealth, the government of herself, and her
maintenance, he has full dominion. If the husband’s family be extinct,

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or the kinsman be unmanly, or destitute of means to support her, or if
there is no Sapindas, a kinsman on the father’s side shall have

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authority over the woman; and the comment on this passage is:

“‘Kinsman on the husband’s side; of his father’s or mother’s race in the
order of proximity. ‘Maintenance’ means subsistence. Thus, without
his consent, she may not give away anything to any person, nor

indulge herself in matters of shape, taste, small, or the like, and if the
means of subsistence be wanting he must provide her maintenance.
But if the kinsman be unmanly (defecient in manly capacity to

discriminate right from wrong) or destitute of means to support her, if
there be no such person able to provide the means of subsistence, or
if there be no SAPINDAS, then anyhow, determining from her own
judgment on the means of preserving life and duty, let her announce

her affinity in this mode : ‘I am the wife of such a man’s uncle; ‘and if

that be ineffectual, let her revert to her father’s kindred; or in failure of
this, recourse may be had even to her mother’s kindered” (Emphasis
supplied.)

In Book III, Chapter II, Section II, Art. CXXII, of Colebrooke’s Digest,
we have the following texts and comments:

“She who is deprived of her husband should not reside

apart from her father, mother, son, or brother, from her

husband’s father or mother, or from her maternal uncle; else
she becomes infamous.”

As per the above texts and comments, a Hindu widow if the
parents-in-law’s branch is unmanly or destitute of means to
support her is entitled to be with the father or the kinsman on
the father’s side.

9. In Janki v. Nand Ram, (1889) ILR 11 All 194 (FB), a Hindu widow
after the death of her father-in-law sued her brother-in-law and her
father-in-law’s widow. The Full Bench of the Allahabad High Court
held that the father-in-law was under a moral, though not legal,
obligation not only to maintain his widowed daughter-in-law during his
life time, but also to make provision out of his self-acquired property
for her maintenance after his death; and that such moral obligation in
the father became by reason of his self-acquired property
having come by inheritance into the hands of his surviving
son, a legal obligation enforceable by a suit against the son and
against the property in question. While so deciding, the learned
Judges at page 210 made a reference to a passage from Dr. Gurudas
Banerjee’s Tagore Law Lectures, thus:

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“We have hitherto been considering the claim of a widow for
maintenance against the person inheriting her husband’s estate. The

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question next arises how far she is entitled to be maintained by the

heir when her husband leaves no property and how far she can claim
maintenance from other relatives. The Hindu sages emphatically
enjoin upon every person the duty of maintaining the dependant

members of his family. The following are a few of the many texts on
the subject:–

MANU: ‘The ample support of those who are entitled to maintenance

is rewarded with bliss in heaven; but hell is the portion of that man
whose family is afflicted with pain by his neglect: therefore let him
maintain his family with the utmost care.’

NARADA: ‘Even they who are born, or yet unborn and they who exist

in the womb, require funds for subsistence; deprivation of the means
of subsistence is reprehended.’

BRIHASPATI: ‘A man may give what remains after the food and

clothing of his family, the giver of more who leaves his family naked
and unfed, may taste honey at first, but still afterwards find it poison.’ ”

The text of MANU as added reads:

“He who bestows gifts on strangers, with a view to worldly

fame, while he suffers his family to live in distress, though he has
power to support them, touches his lips with honey, but swallows

poison; such virtue is counterfeit: even what he does for the sake of
his future spiritual body, to the injury of those whom he is found to
maintain, shall bring him ultimate misery both in this life and in the
next.”

Having so quoted the texts, the Full Bench based its judgment
on the proposition:

“……under the Hindu law purely moral obligations
imposed by religious precepts upon the father ripen into legally
enforceable obligations as against the son who inherits his
father’s property.”

10. In Kamini Dassee v. Chandra Pode Handle, (1890) ILR 17 Cal
373, it is held by the Calcutta High Court that the principle that an heir
succeeding to the property takes it for the spiritual benefit of the late
proprietor, and is, therefore, under a legal obligation to maintain
persons whom the late proprietor was morally bound to support, has
ample basis in the Hindu law of the Bengal School and accordingly
decreed the suit for maintenance laid by a widowed brother against
her husband’s brothers.

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11. In Devi Prasad v. Gunvati Koer, (1894) ILR 22 Cal 410, deciding
an action brought for maintenance by a Hindu widow against the

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brothers and nephew of her deceased husband after the death of her

father-in-law, the Calcutta High Court held that the plaintiff’s husband
had a vested interest in the ancestral property, and could have, even

during his father’s life time, enforced partition of that property, and as
the Hindu law provides that the surviving coparceners should maintain
the widow of a deceased coparcener, the plaintiff was entitled to
maintenance.

12. In Bai Mangal v. Bai Rukmini, (1899) ILR 23 Bom 291,
the statement of law of MAYNE that
“After marriage, her (meaning the daughter’s) maintenance is
r a charge upon her husband’s family, but if they are unable to

support her, she must be provided for by the., family of her
father.”

was understood to have been one of monetary character than laying
down any general legal obligation. The learned Judge, Ranede, J.,

after examining all the authorities has broadly laid down the law, as he
understood, thus:

“In fact, all the text writers appear to be in agreement on this
point, namely, that it is only the unmarried daughters who have

a legal claim for maintenance from the husband’s family. If this
provision fails, and the widowed daughter returns to live with
her father or brother, there is a moral and social obligation, but

not a legally enforceable right by which her maintenance can
be claimed as a charge on her father’s estate in the hands of
his heirs.” (page 295).

13. However, the same learned Judge, Ranede, J., in a later case in
Yamuna Bai v. Manubai, (1899) ILR 23 Bom 608, expressed his
absolute concurrence with the law laid down by the Allahabad High
Court in Janaki’s case, (1889 ILR 11 All 194) (supra), as regards the
right of the widow of a predeceased son to maintenance against the
estate of the deceased father-in-law in the hands of his heirs.

14. The view of Ranede, J., in Bai Man-gal’s case, (1899 ILR 23 Bom

291) (supra), was further conditioned by Ammer Ali, J., in Mokhoda
Dassee v. Nundo Lall Haldar, (1900) ILR 27 Cal 555, by holding that
the right of maintenance is again subject to the satisfaction of the fact
that the widowed sonless daughter must have been at the time of her
father’s death maintained by him as a dependant member of the
family.

15. But, both the views of Ranede, J., in Bai Mangal’s case, (1899 ILR
23 Bom 291) (supra), and Ameer Ali, J., in Mokhode Dassee’s case,

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(1900 ILR 27 Cal 555) (supra), did not find acceptance of A. K. Sinha,
J., of the Calcutta High Court in Khanta Moni v. Shyam Chand, . The

.

learned Judge held that a widowed daughter to sustain her claim for

maintenance need not be a destitute nor need be actually
maintained by the father during his life time… All that she is
required to prove to get such maintenance, the learned Judge

held, is that at the material time she is a destitute and she could not
get any maintenance from her husband’s family.”

“19. In Appavu Udayan v. Nallamrnal, AIR 1949 Madras 24, the

Madras High Court has to deal with the rights of daughterin-law
against her father-in-law and his estate in the hands of his heirs.
There it is held that the father-in-law is under a moral obligation to

maintain his widowed daughter-in-law out of his self-acquired property
and that on his death if his selfacquired property descends by

inheritance to his heirs, the moral liability of the father-in-law ripens
into a legal one against his heirs.

20. A Full Bench of this High Court in T. A. Lakshmi Narasamba v. T.

Sundaramma, AIR 1981 Andh Pra 88 held:

“The moral obligation of a father-in-law possessed of

separate or self-acquired property to maintain the widowed
daughter-in-law ripens into a legal obligation in the hands of

persons to whom he has either bequeathed or made a gift of
his property.

Under the Hindu law there is a moral obligation on the

father-in-law to maintain the daughter-in-law and the heirs
who inherit the property are liable to maintain the dependants.
It is the duty of the Hindu heirs to provide for the bodily and
mental or spiritual needs of their immediate and nearer
ancestors to relieve them from bodily and mental discomfort
and to protect their souls from the consequences of sin. They
should maintain the dependants of the persons of property
they succeeded. Merely because the property is transferred
by gift or by will in favour of the heirs the obligation is not
extinct. When there is property in the hands of the heirs
belonging to the deceased who had a moral duty to provide
maintenance, it becomes a legal duty on the heirs. It makes
no difference whether the property is received either by way
of succession or by way of gift or will, the principle being
common in either case.”

21. It is rather pertinent to notice here that the view of Ranede, J., in
Bai Mangal’s case, (1899 ILR 23 Bom 291) (supra) has been
dissented from specifically by the Full Bench of this High Court.”

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9. It can never be forgotten that inherent and fundamental

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principle behind section 12 of the Act is for amelioration of the financial

state of affairs as well as mental agony and anguish that woman suffers

when she is compelled to leave her matrimonial home. The statute

commands that there has to be some acceptable arrangements so that

she can sustain herself. Sustenance does not mean and can never

allow to mean a mere survival.

10. A woman, who is constrained to leave the matrimonial

home, should not be allowed to feel that she has fallen from grace and

move hither and thither arranging for sustenance. As per law, she is

entitled to lead a life in the similar manner as she would have lived in

the house of her husband. She cannot be compelled to become a

destitute or a beggar.

11. Adverting to the submissions made by learned counsel for

the petitioner that his client is working only as a labourer and, therefore,

cannot afford to maintain his wife, the same cannot be a ground to deny

the maintenance. It is not in dispute that the petitioner is an able-bodied

young man capable of earning sufficient money and, therefore, cannot

simply deny his legal obligation of maintaining his wife.

12. Similar issue came up before the Hon’ble Supreme Court

in Shamima Farooqui vs. Shahid Khan JT 2015 (3) SC 576,

wherein it has been held as follows:-

“15. ………Sometimes, a plea is advanced by the husband that
he does not have the means to pay, for he does not have a job
or his business is not doing well. These are only bald excuses
and, in fact, they have no acceptability in law. If the husband is
healthy, able bodied and is in a position to support himself, he is
under the legal obligation to support his wife, for wife’s right to
receive maintenance under Section 125 CrPC, unless

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isqualified, is an absolute right. While determining the quantum
of maintenance, this Court in Jabsir Kaur Sehgal v. District

.

Judge Dehradun Ors. [JT 1997 (7) SC 531: 1997 (7) SCC 7]

has held as follows:-

“The court has to consider the status of the parties, their

respective needs, the capacity of the husband to pay
having regard to his reasonable expenses for his own
maintenance and of those he is obliged under the law
and statutory but involuntary payments or deductions.

The amount of maintenance fixed for the wife should be
such as she can live in reasonable comfort considering
her status and the mode of life she was used to when

she lived with her husband and also that she does not

feel handicapped in the prosecution of her case. At the
same time, the amount so fixed cannot be excessive or
extortionate.”

16. Grant of maintenance to wife has been perceived as a
measure of social justice by this Court. In Chaturbhuj v. Sita Bai

JT 2008 (1) SC 78 : 2008 (2) SCC 316, it has been ruled that:-

“Section 125 CrPC 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.Veena Kaushal 1978 (4) SCC 70 falls within
constitutional sweep of Article 15(3) reinforced by Article
39 of the Constitution of India. 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 JT 2005 (3) SC 164”.

16.1. This being the position in law, it is the obligation of the
husband to maintain his wife. He cannot be permitted to plead
that he is unable to maintain the wife due to financial constraints
as long as he is capable of earning.

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17. In this context, we may profitably quote a passage from the
judgment rendered by the High Court of Delhi in Chander

.

Prakash Bodhraj v. Shila Rani Chander Prakash AIR 1968 Delhi

174 wherein it has been opined thus:-

“An able-bodied young man has to be presumed to be

capable of earning sufficient money so as to be able
reasonably to maintain his wife and child and he cannot
be heard to say that he is not in a position to earn
enough to be able to maintain them according to the

family standard. It is for such able-bodies person to show
to the Court cogent grounds for holding that he is unable
to reasons beyond his control, to earn enough to

discharge his legal obligation of maintaining his wife and

child. When the husband does not disclose to the Court
the exact amount of his income, the presumption will be
easily permissible against him.”

13. It has to be remembered that when the woman leaves the

matrimonial home, the situation is quite different. She is deprived of

many a comfort. Sometimes the faith in life reduces. Sometimes, she

feels she has lost the tenderest friend. There may be a feeling that her

fearless courage has brought her misfortune. At this stage, the only

comfort that the law can impose is that the husband is bound to give

monetary comfort. That is the only soothing legal balm for which she

cannot be allowed to resign to destiny. Therefore, the lawful imposition

for grant of maintenance allowance. (Ref: Shamima Farooqui vs.

Shahid Khan supra).

14. Now, adverting to the ground of maintenance, it would be

noticed that the Court below has awarded a maintenance of Rs.3,000/-,

which are hardly worked out to Rs.100/- per day where the respondent

and her minor children are required to be taken care of this and cannot

be oblivious to the fact that apart from sustenance, the respondent and

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her children would be incurring some expenses for their upkeep,

purchase of clothes, shoes, utensils etc.etc.

.

15. It has to be remembered that a duty is fastened upon the

Court to award maintenance pendente lite in such a manner so that

spouse and the child can live with dignity according to their social

status. Factors which can be culled out as required to be kept in mind

while awarding interim maintenance are as under:-

(i) Status of the parties;
(ii) Reasonable wants of the claimant;

(iii) The income and property of the claimant;

(iv) Number of persons to be maintained by the
husband;

(v) Liabilities, if any, of the husband;

(vi) The amount required by the wife to live a
similar life-style as she enjoyed in the

matrimonial home keeping in view food,

clothing, shelter, educational and medical
needs of the wife and the children, if any,

residing with the wife.

16. It has to be remembered that the object of providing

maintenance is to prevent vagrancy by compelling the husband to

support his wife and children, who are unable to support themselves.

Most of these provisions are not penal in nature, but are only intended

for enforcement of the duty, a default, which may lead to vagrancy. The

further object underlying maintenance is that neither party may suffer by

his/her inability to conduct the proceedings for want of money or

expenses.

17. Having failed on all scores, the petitioner would lastly

contend that he is ready and willing to take the respondent back to the

matrimonial home.

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18. I have considered this submission and in case the

petitioner was really serious in taking back the respondent alongwith his

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minor children, then nothing prevented him from doing so, after all he

does not require anybodies permission to take back the respondent,

who is none other than his wife.

19. I view of the aforesaid discussion, I find no merit in this

petition and the same is accordingly dismissed, so also the pending

application(s) if any.

23rd April, 2018. (Tarlok Singh Chauhan),

(GR) Judge

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