No Maintenance to wife, filed by husband

                              IN THE HIGH COURT OF JUDICATURE AT PATNA
                                                     CR. WJC No.810 of 2010


MANOJ KUMAR PATEL @ MANOJ PATEL
S/o JOKHI PATEL,
R/o MOHALLA NONIA TOLA,
CHAKKI PAKRI,
P.S. SHIKARPUR,
DISTRICT-WEST CHAMPARAN,                                  ……PETITIONER
For the petitioner:- Mr. R.S.Sahay & Mr. J.J.Sahay,Advs.


Vs

1. STATE OF BIHAR THROUGH HOME SECRETARY, BIHAR, PATNA.
2. MUNITA DEVI WIFE OF MANOJ KUMAR PATEL,
    D/O MADAN PD. PATEL
3. RAMBABU @ SONI
    S/o MANOJ KUMAR PATEL
4. SHYAM KISHORE,
    S/o MANOJ KUMAR PATEL
(1 – 4 ) R/o: SAGAR POKHARA,
P.S. BETTIAH TOWN,
DISTRICT-WEST CHAMPARAN                                 ……RESPONDENTS
For the State:- Mr. Kaushal Kishore Jha,

SC- 18 5 16 .09.2010

Petitioner is the husband of Respondent no.2 Munita Devi and father of respondent Nos. 3 and 4. Respondent no.2 and her children, respondent nos. 3 and 4 were deserted by the petitioner; as such she filed a petition under Section 125 of the Code of Criminal Procedure for maintenance of herself as well as her two children, from the petitioner. The case was registered as Maintenance case No. 308M/2005 and heard by Principal Judge, Family Court, West Champaran, Bettiah. The case, on contest was decided in favour of respondent nos. 2 to 4 and vide order dated 16.12.2009 the petitioner was directed to pay maintenance of Rs. 1000/- Per month to all three (respondent nos. 2 to 4) from the date of filing of maintenance case i.e. 27.9.2005. The order passed by the Family Court granting maintenance in favour of respondent nos. 2 to 4 was challenged by the petitioner by filing Criminal Revision No. 248 of 2010 which is still pending in the High Court. However, despite the fact that there was no stay order passed in favour of the petitioner, he did not pay a single penny to his legally wedded wife and children. He has also filed matrimonial suit (Divorce No. 188 of 2007) which is pending for adjudication. Since the monthly maintenance amount was not being paid to the respondents, as such respondent no.2 filed a petition before the Principal Judge, Family Court, West Champaran, Bettiah in order to get the maintenance order complied. Notice was issued to the petitioner to show cause, as such he appeared before the Court and made a prayer for staying the operation of the order passed in the maintenance case or for a direction that the petition be considered along with matrimonial divorce case.

On perusal of the order-sheet of the maintenance case No. 308M/2005, it transpires that in response to show cause notice, the petitioner appeared before the Principle Judge, Family Court, West Chmparan and on 20.4.2010 the petitioner as well respondents were heard. One months time was allowed to the petitioner either to bring stay order or to make payment of entire arrears amount as well as month to month maintenance amount to the respondents. On 22.5.2010, when again the matter was taken up, both the parties were heard. Since, no stay order could be obtained by the petitioner from the High Court, as such the petitioner was asked to deposit the entire arrears of maintenance amounting to Rs. 1,65,000/-. Petitioner showed his reluctance in making payment, as such warrant of arrest was issued against the petitioner and in exception of it he was taken into custody. The matter was again directed to be listed on 5.6.2010. On 22.5.2010 petitioner has filed a petitio for staying the operation of order dated 16.12.2009, passed in maintenance case allowing maintenance in favour of respondents, but that was rejected and an order for taking the petitioner into custody was passed as provided under Section 125(3) of the Code of Criminal Procedure. On 2.6.2010 again the matter was taken up and the petition filed by the petitioner challenging the order taking into custody was taken up for consideration. Petitioner had challenged the order stating that he could not have been ordered to be imprisoned without taking recourse to the procedure for recovery of fine as provided under Section 421 of the Code of Criminal Procedure. There should have been a proper order of sentencing, before taking him in custody. However, the Principal Judge, Family Court, West Champaran, Bettiah, rejected the plea taken by the petitioner stating that Section 125(3) of the Code of Criminal Procedure in itself is a complete provision which provides that in case of failure to comply with the order for payment of maintenance amount warrant of arrest can be issued, till the realization of the amount. There is no necessity to follow the procedure provided for levying fines. The person may be sentenced for the whole or any part of each months non payment of maintenance amount in execution of the warrant. For unpaid maintenance amount the person concerned may be imprisoned for a term of one month or until payment is sooner made. Only required for issuance of warrant for the recovery of any amount due under this section is that there must be an application filed by the aggrieved wife / children before the court for realization of such amount within a period of one year from the date on which it became due. The Court if satisfied that there is just ground for not making payment of such amount was on filing such application, no warrant can be issued. Since, there was no ground available in favour of the petitioner and he refused to make payment the maintenance amount without there being any reasonable ground for it, the provision under Section 125(3) was applicable. Section 125 (3) Cr.P.C. provides jurisdiction to the court for issuance of warrant of arrest and for taking into custody in execution of it. Counsel appearing for the petitioner submits that on simple reading of the provision under Section 125(3) Cr.P.C., it is apparent that before issuance of warrant of arrest or taking the defaulter into custody, he should be given proper opportunity to show the reason for non-payment and only in case the Court is satisfied that without any obvious reason the direction of the Court has been flouted, any order regarding issuance of warrant of arrest could have been passed. The period of imprisonment in any case could not have been exceeded beyond one month as for each period of default; there should have been fresh application and fresh order of custody for the unpaid maintenance amount for each month. In this regard the counsel for the petitioner placed reliance on a decision reported in the case of Ashok Prasad Vs. State of Bihar (2000 (1) PLJR 578) and also in the case of Shahada Khatoon and others vs. Amjad Ali and others (1999 (5) SCC 672). However on perusal of the impugned order, it transpires that the Court below has placed reliance on a decision of the Apex Court reported in the case of Kuldip Kaur vs. Surinder Singh (AIR 1989 SC 232), wherein it has been held that a person cannot be released from the custody till he makes the payment.


In the decision reported in (1999) 5 SCC 672, the short question which arose for consideration was whether the single Judge of Patna High Court has correctly interpreted the provision under sub-section (3) of Section 125 Cr.P.C., by directing the Magistrate that he can only sentence for a period of one month or until payment, if sooner made. The Apex Court held that the language of sub-section (3) of Section 125 Cr.P.C. is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore the only remedy would be after expiry of one month. For breach of non-compliance with the order of the Magistrate the wife can approach the Magistrate again for similar relief. By no stretch of imagination can the Magistrate be permitted to impose sentence for more than one month. In that view of the matter, the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court.


Counsel for the petitioner placing reliance on a decision of Division Bench of Patna High has submitted that the provision of sub-section(3) of Section 125 Cr.P.C. has been considered in the reported decision 2000 (1) PLJR 578. The facts in the reported decision were identical to the facts of the present case. Petitioner of that case had also filed a petition for his release and for holding that his detention in the custody is illegal. The petitioner- husband had been arrested on 7.8.1995 in execution of warrant of arrest issued on 1.8.1995 by the JM for default in payment of maintenance amount and its arrears. Since then, after every 14 days he was being remanded to judicial custody and continuously for three and half years he was in custody, Division Bench while interpreting the jurisdiction of the Court u/s 125(3) Cr.P.C. held as follows:-
” From a reading of Section 125(3) Cr. P.C. it is clear that if any person who has been ordered to pay maintenance under section 125(1) Cr.P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realization of amount which are provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid the Magistrate may sentence such person for the whole or any part of each months allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment, if sooner made. So it is clear that the Magistrate has first to satisfy that the order has not been complied by a person without sufficient cause and if he finds that there is failure of the compliance of the order without sufficient cause he will issue a distress warrant for levying the amount due for every breach of the order in the manner provided for levying fines. It is further provided that after execution of distress warrant if the Magistrate finds that any amount has remained unpaid he may sentence such person for the whole or part of each months allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment whichever is earlier. The manner provided for levying fines is prescribed under section 421 Cr.P.C. So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such persons to imprisonment for a period of one month for the whole or any part of each months allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due, the question of sentencing the persons to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.”


We find that the Court below has placed reliance on a decision reported in the case of Smt. Kuldip Kaur Vs. Surendra Singh and another ( AIR 1989 SC 232). But the question for consideration before the Apex Court in the matter was whether, in case of person refusing to comply the order of the Court to maintain his neglected wife or children, without reasonable cause, will be absolved of his liability, merely because he prefers to go to jail. Considering every aspect of the provisions under Sub-section (3) of Section 125 Cr.P.C., it was held that sentencing a person to jail is mode of enforcement and not mode of satisfaction. The liability can be satisfied only by making actual payment of arrears. The Supreme Court directed the defaulting husband be put in jail till he makes the payment of maintenance allowance. However, there is no finding whether this period can be only one month or more than one month.


On the other hand, counsel appearing for the State has raised objection regarding maintainability of the application of habeous corpus challenging legality of the detention, stating that since the petitioner is detained in jail for flouting the order 16 of the Court u/s 125(3) Cr.P.C. and there is a provision for issuance of warrant of arrest under sub-section 3 of Section 125 Cr.P.C. for issuance of warrant of arrest and taking into custody, due to non-payment of arrears as well as monthly maintenance amount, the detention cannot be considered as illegal detention and writ of habeous corpus is not maintainable.


Counsel for the State has submitted, at best, the petitioner can challenge the legality of the order by filing criminal revision application before the appropriate forum. He has placed reliance on a decision reported in the case of Kanu Sanyal Vs. District Magistrate, Darjeeling (AIR 1974 SC 510), where the finding has been recorded as follows;-
“Where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal.”


On consideration of different decisions on which reliance has been placed by the parties and the provision u/s 125(3) Cr. P.C., we find that the issue has been settled by the Apex Court in (1999) 5 SCC 672 and by decision reported in 2000(1) PLJR 578. The Principle Judge, Family Court, after taking the petitioner in custody has not passed any fresh order for extension of the period in custody for fresh default of each month. Since the condition for keeping in custody as provided under Sub-section(3) of Section 125 Cr.P.C. has not been observed by the principle Judge, Family Court, the detention of petitioner beyond one months period cannot be held to be legal. Once it is held that the detention is illegal, there cannot be any question regarding maintainability of the writ application. Keeping in view that the petitioner has remained in custody beyond one months period, in the facts and circumstances of the case, his detention is illegal. Accordingly direction is being issued for release of the petitioner forthwith in connection with Maintenance Case No. 308M/2005, if not wanted to remain in custody in any other case.


The writ application stands allowed.
(Mridula Mishra,J.)
(Dharnidhar Jha,J.)

No maintenance to wife for submitting forged documents as husband income proof

                                     IN THE HIGH COURT OF UTTAR PRADESH

Satendra Kumar Gupta

Vs

State Of U.P. And Anr.

Date:22/2/2008

JUDGMENT - A.K. Roopanwal, J.

1. This criminal revision is directed against the order dated 27.9.06 passed by the Family Court, Gorakhpur in criminal case No. 340/03, Smt. Kanchan Gupta v. Satendra Kumar Gupta, under Section 125, Cr.P.C. whereby the court allowed the application and granted maintenance of Rs. 3,500/- p.m. to O.P. No. 2 and Rs. 3,500/- p.m. for her son from the date of the petition under Section 125, Cr.P.C.


2. It appears from the record that an application under Section 13, Hindu Marriage Act was moved by the
revisionist against O.P. No. 2 before the Family Court, Gorakhpur and this was registered as case No. 54/03. The wife Smt. Kanchan Gupta also filed an application under Section 125, Cr.P.C. against the revisionist Satendra Kumar Gupta for her maintenance and for the maintenance of her son and this case was registered as case No. 340/03.


3. The case of the revisionist was that O.P. No. 2 had neglected him and is not taking his care and therefore, their marriage be desolved by a decree of divorce. The Case of O.P. No. 2 was that the husband had neglected her and her son and therefore, the divorce suit filed by the husband was liable to be dismissed and she and her son are entitled to maintenance. Both the parties led oral and documentary evidence in support of their cases. The trial court framed as many as six issues for decision of the case. After perusal of the evidence the trial court dismissed the application for divorce which is not the subject matter of this revision as the only prayer has been made before this Court is about the maintenance under Section 125, Cr.P.C. filed by the wife. The application for maintenance was allowed in the manner stated above which gave rise to this revision.


4. I have heard Mr. Dilip Gupta, learned Counsel for the revisionist, Mr. K.K. Mishra for O.P. No. 2 and perused the record.


5. Mr. Gupta argued that the trial court has wrongly assessed the income of the revisionist and has also wrongly fixed the quantum of maintenance, therefore, findings in this regard are liable to be quashed. In this regard he argued that the trial court based his findings on the basis of that record which was subsequently found to be not reliable by the court itself and therefore, the above findings should be quashed and matter be remanded back to the court for afresh decision. The above argument was refuted by the other side.


6. A look at the impugned judgment would reveal that the findings regarding the income and the quantum of maintenance have been recorded by the trial court on the basis of the record of the income tax assessments for certain years relied upon by the wife. The husband challenged the truthfulness of these records by moving an application under Section 340, Cr.P.C. even during the continuance of the proceedings but the trial court decided the application under Section 125, Cr.P.C. without deciding the application under Section 340, Cr.P.C.

However, after the decision of the application under Section 125, Cr.P.C. on 27.9.06 the same court decided the application under Section 340, Cr.P.C. vide order dated 26.2.07. In the last paragraph of this order it was observed by the court that the judgment in case No. 340/03 has been obtained by the wife on the basis of forged evidence. The application under Section 340, Cr.P.C. was allowed by the court and criminal proceedings were instituted against the wife and others. Learned Counsel for the revisionist says that in view of the decision on the application under Section 340, Cr.P.C. judgment passed in the proceedings under Section 125, Cr.P.C. cannot be allowed to stand and therefore, this should be set aside.


7. Learned Counsel for O.P. No. 2 argued that the procedure adopted by the trial court for the decision of the application under Section 340, Cr.P.C. is not a correct procedure and therefore, the argument advanced by the learned Counsel for the revisionist should not be accepted.


8. In my opinion, it cannot be a valid consideration for deciding the controversy between the parties as to whether the procedure in initiating the proceedings under Section 340, Cr.P.C. adopted by the trial court was correct or wrong. The only consideration for testing the propriety of the judgment under Section 125, Cr.P.C. is as to whether the decision on the application under Section 340, Cr.P.C. can be a valid consideration or not for deciding the application under Section 125, Cr.P.C. and in that regard it can safely be said that once findings recorded on the application under Section 340, Cr.P.C. have not been set aside by any competent court of law, hence, these findings are binding upon the parties and in view of these findings this can very well be said that the evidence on the basis of which the wife got judgment in the proceedings under Section 125, Cr.P.C. cannot be said to be a good judgment as this judgment is based on that evidence which has been held to be forged by that very court which had decided the proceedings under Section 125, Cr.P.C.


9. In view of the above, I am in agreement with the argument advanced by the learned Counsel for the revisionist that the judgment and order passed in the proceedings under Section 125, Cr.P.C. registered as case No. 340/03 are liable to be quashed and the matter is liable to be remanded back for afresh decision. 


10. Accordingly, revision is allowed. Judgment and order dated 27.9.06 is set aside so far as it relates to the proceedings under Section 125, Cr.P.C. registered at case No. 340/03. The matter is remanded back to the trial court for afresh decision on the basis of the evidence on record. The parties may be allowed to lead fresh evidence, if they so like.

No Maintenance to wife, filed U/s 25 CrPC and challenged by husband in S.C. 125 CrPC in S.C

IN THE SUPREME COURT OF INDIA

CASE NO.:
Appeal (crl.) 1627 of 2007

PETITIONER:
Chaturbhuj

RESPONDENT:
Sita Bai

DATE OF JUDGMENT: 27/11/2007
BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:
J U D G M E N T CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.
1. Leave granted.

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 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. Undisputedly, 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 applicant. 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 herself.


3. Revision petition was filed by the present appellant. Challenge 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.


4. Section 125 Cr.P.C. reads as follows:
     “125. (1) If any person having sufficient means neglects or refuses to maintain
                    (a) his wife, unable to maintain herself, or
                    (b) his legitimate or illegitimate minor child,whether married or not,
                          unable to maintain itself, or
                    (c) 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
                    (d) 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:
                          (a) Provided 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,
                              (a) ‘minor’ means a person who, under the provisions of the Indian Majority
                                    Act, 875 (9 of 1875), is deemed not to have attained his majority;
                              (b) ‘wife’ includes a woman who has been divorced by, or has obtained a
                                    divorce from, her husband and has not remarried.”

      ["(2) 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.";]
      (3) If 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 4 [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 sooner made:
      Provided 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:
      Provided 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 doing. 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.
      (4) No 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. 
     (5) On 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.”


5. The 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).


6. 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.


7. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself.
These 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.


8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can 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.


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.



CrPC-125 Maintenance
Maintenance
No maintenance wife when she can maintaine herself

No conditions on maintenance to Wife

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.344 OF 2009
(Arising out of S.L.P. (Criminal) No. 637 of 2008)

Munish Bhasin & Ors.                                                           … Appellants

Versus

State (Govt. of N.C.T. of Delhi) & Anr.                               … Respondents

JUDGMENT : J.M. PANCHAL, J.
Leave granted.

The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.


2. Heard Counsel.


3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code.


4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them.


5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02,2007. The case was ordered to be listed on 10.05.2007.
The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.


6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.


7. From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under sub-section (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including (i) a condition that a person shall make himself available for interrogation by police officer as and when required, (ii) a condition that the person shall not, directly or indirectly,make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer, (iii) a condition that the person shall not leave India without the previous permission of the Court and (iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, inter alia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
The Court may also impose, in the interests of justice, such other conditions as it considers necessary.


8. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions.
There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code.
However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code.
Normally, conditions can be imposed (i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all.
There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh,onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms.Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code.
When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally,the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.


9. For the foregoing reasons, the appeal succeeds.The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child is hereby deleted. Rest of the directions contained in the said order are maintained.
It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.


10. The Appeal is accordingly disposed of.

[R.V. Raveendran]

[J.M. Panchal]

New Delhi;February 20, 2009.

No interim maintenance to wife, if, wife not ready to live

Section 24 in The Hindu Marriage Act, 1955

Sunita Sharma

Vs

Upendra Kumar Sharma

Date:3 March, 2008

ORDER

1. This Civil Revision application is directed against the order dated 23-7-1996 passed by the Principal Judge, Family Court. Patna, in Matrimonial Case No. 46 of 1995, whereby and whereunder the Court below rejected the application filed by the petitioner under Section24of the Hindu Marriage Act (hereinafter to be referred to as 'the Act' for short) claiming alimony pendent lite for her maintenance and for the maintenance of minor son. The plaintiff-opposite party filed Matrimonial Case No. 46 of 1995 against the petitioner for a decree for restitution of conjugal rights and for a direction to the petitioner to return to her matrimonial home and on failure of the petitioner, the marriage may be dissolved by a decree of divorce.


2. The suit was contested by the petitioner by filing written statement stating, inter alia, that she is willing to live with her husband provided proper security is given to her as she was ill-treated by the plaintiff-opposite party and his parents, while she was living with the opposite party. During the pendency of the aforesaid case, the petitioner filed a petition dated 3-6-1996 praying for alimony pendente file which application was opposed by the plaintiff-opposite party on the ground that he is a student and has no source of income. The Court below disposed of the application by the impugned order dated 23-7-1996. The Court below came to the finding that there is no evidence on behalf of the plaintiff-opposite party to prima facie prove that the petitioner-wife is working as teacher in the school and she has no source of independent income and she is fully dependent for her maintenance on her parents. The Court below further came to the finding that the plaintiff-opposite party has also no independent source of income and he is still prosecuting his studies and dependent on his father. On that ground that petition filed by the petitioner was rejected. So far the maintenance to the minor child is concerned, the Court below held that since no separate application claiming maintenance of the child was filed, therefore, no order can be passed. Hence, this Civil revision application.


3. Mr. S. K. Verma, learned senior counsel appearing on behalf of the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below has committed grave error of law insofar, as it held that the plaintiff-opposite party having no independent source of income is not liabte to pay maintenance to the wife according to the learned counsel, in no event, the husband can be exonerated from his liability to maintain his wife and minor children. He put reliance on the decisions rendered in the cases (i) Smt. Urmila Devi v Hari Prakash Bansal, AIR 1988 Punj & Har 84, (ii) Gurmali Singh v. Bhuchari, AIR 1980 Punj & Har  120. Learned counsel further submitted that the Court below has failed to appreciate the settle law that no separate application with regard to maintenance of child is required and even on the basis of affidavit, such order can be passed. In support of his contention, learned counsel referred to the decisions in the cases of (i) Manoj Kumar Jaiswal v. Smt. Lila Jaiswal, AIR 1987 Cal 230 and (ii) Durga Pada Banerjee v. Smt. Sushmitta Banerjee. (1991) 2 Pat LJR 215. Learned counsel lastly submitted that it was not disputed that the plaintiff husband is able person capable of working and in such event, he is bound to maintain the wife and minor children. Learned counsel referred to the decisions in the cases, reported in.( 1995) 2 Pat LJ Reports, 199 and in 1997 Patna Law Reports 129. On the other hand, Mr. Farooque Ahmad Khan, learned counsel for the husband-opposite party submitted that the main suit filed by the plaintiff opposite party has been disposed of in terms of the judgment dated 13th June 996 and a decree for restitution of conjugal rights has been passed. The learned counsel submitted that even-after the decree the petitioner-wife did not resume her conjugal life. The Court below decided all the issues in favour of the plaintiff-husband. According to the learned counsel, therefore, the question of payment of maintenance to the wife does not arise and by reason of passing of the decree, the application became infructuous. Learned counsel submitted that when the main suit stood disposed of, then the application under Section 24 of the Act does not survive. In this connection, the learned counsel relied upon the decision in the case of Nirmala Devi v. Ramdas. AIR 1973 Punj and Har48. Learned counsel then submitted that admittedly the opposite party-husband is studying and he has not finished his study. Learned counsel submitted that it is not a case where the husband is able to work, but is not working; rather it is a case where he has been studying and for doing work, he will have to leave his studies. 

According to the learned counsel. therefore, the principles of the law, can vassed by the learned counsel for the petitioner does not apply. In support of his contention, he has cited two decisions, one of Allahabad High Court in the case, of Smt. Preeti Archana Sharma. v. Ravindra Kumar Sharma, AIR I979. All 29 and another of Mysore High Court in the case of  N. Subramanyam v. M. G. Saraswathi, AIR 1964 Mysore 38.


4. Before appreciating the rival contentions made by the learned counsel for the parties, it would be useful too took into the provision of Section 24 of the Hindu Marriage Act which is quoted below:--
     '24. Maintenance, pendente lite and expenses of proceedings: -- Where in any proceeding under
     this     Act is appears to the Court that either the wife or the husband, as the case may be, has no 
     independent income sufficient for her or his support and the necessary expenses of the proceeding, it
     may on the application of the wife or the husband, order the respondent to pay the petitioner the
     expenses of the proceeding such sum as, having: regard to the petitioner's own income and the
     income of the respondent, it may seem to the Court to be reasonable."


5. From the aforesaid provision, it is manifest that the object of this section is to enable the husband or wife, as the case may be, who has no independent income sufficient for his or her maintenance or for him the expenses of any legal proceeding under the Act to obtain maintenance and the expenses pendente lite, so that the proceeding may be conducted without any hardship.


6. I wish to first discuss the point raised by Mr. Farooque Ahmad Khan learned counsel for the opposite party-husband that by reason of the disposed of the main suit, the petition claiming maintenance pcndente lite and, legal expenses does not survive and has become infructuous. The learned counsel submitted that the plaintiff opposite party filed the suit for decree of restitution  of conjugal right and in the event of failure on the part of the petitioner-wife to, resume conjugal life, marriage was dissolved by decree of divorce and in the concilialion proceeding the petitioner refused to live with him on the ground that her husband was not in service. According to the learned counsel, the suit has been ultimately disposed of by the judgment whereby a decree for restitution of conjugal right has been passed in favour of the opposite party husband and the petitioner was directed to resume matrimonial cohabitation. Under sick circumstances, the petitioner would not be entitled to pendente lite alimony and legal expenses. 1 have occasion to go through a copy of the judgment passed in the suit which was supplied by the counsel. From perusal of the judgment, it appears that the learned Principal Judge, Family Court has considered the evidence in detail and came to the finding that the respondent wife failed to return back to her in-laws' home despite repeated requests and even after legal notice. The reason for not coming back to her husband's house is obvious from the order passed by the Court below on the date when the suit was fixed for reconciliation. The order passed by the Court below on 8-12-1995 is worth to be quoted hereunder:-
     "8-12-95. Since the suit is fixed for reconciliation and the parties are present, I took up
     reconciliation matter. The petitioner-husband is ready to keep the respondent-wife but the latter says
     that since the petitioner is not doing any service, she does not want to live at her Sasural and that she
     will not live with the petitioner until he does some job. The petitioner says that he is a student and
     the respondent should cooperate with him so that he may prosecute, his study properly but this
     entreaty of the petitioner did not seem to have any effect on the respondent. It is, therefore, obvious
     that the reconciliation has failed."


7. From the aforesaid order, it is clear that since beginning, the petitioner wife was not ready to live with her husband as he is not doing any service and is having no independent income. The Court below while passing the impugned order held that the opposite party husband has no independent source of income and is still prosecuting his study and is dependent on his father. "It is true mat even the husband has no independent source of income or earning, but is capable of earning being an able-bodied person lit enough to work is liable to maintain his wife and cannot deny payment of maintenance pendente lite. But in my considered opinion, in the facts and circumstances of the present case, this civil revision application is not fit to be allowed. As noticed above knowing fully well that the opposite party husband was prosecuting his study, the marriage was solemnized, but the petitioner refused to live in the matrimonial House on the ground that the opposite party husband is not doing any service. It is also evident that the opposite party repeatedly requested the petitioner to live with him in his parents house, but she refused to do so. Ultimately, the opposite party instituted the suit for restitution of conjugal right and the suit was decreed, but even then the petitioner did not resume conjugal right. In such circumstances, the decisions upon which the petitioner put reliance does not apply.


8. It is well settled that the allowance of temporary alimony is not regarded as a matter of right, but is a matter within the judicious discretion of the Court and this Court in revision interferes only when the discretion has been perversely exercised by the Court below.


9. Having regard to the facts and circumstances of the case, and particularly the finding arrived at by the Court below while disposing of the suit finally, I do not find any reason to interfere with the impugned order passed by the Court below.


10. This civil revision application is, accordingly, dismissed

NO MAINTENANCE TO WIFE, IF RCR BY HUSBAND SUCCEED

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.20 OF 2005

Smt.Manju Kamal Mehra
aged about 35 years, occ. Housewife,
Religion Hindu, resident of C/o G.K.
Chawla, G-1/23,Vijay Nagar, Marol-Maroshi
Road, Andheri (E), Mumbai-400 059. ….Appellant
V/s.

Mr.Kamal Pushkar Mehra,
aged about 40 years, occ.business,
Religion Hindu, residing of 107,
Janak Apartment, Samarth Ramdas Nagar,
Navghar Vasai (East), District.Thane ….Respondent
Mr.P.M. Havnur for the Appellant.
Mrs.B.P. Jakhade for the Respondent.
WITH
FAMILY COURT APPEAL NO.44 OF 2005

Mr.Kamal Pushkar Mehra,
aged about 40 years, occ.business,
Religion Hindu, residing of 107,
Janak Apartment, Samarth Ramdas Nagar,
Navghar Vasai (East), District.Thane ….Appellant
V/s.
Smt.Manju Kamal Mehra
aged about 35 years, occ. Housewife,
Religion Hindu, resident of C/o G.K.
Chawla, G-1/23,Vijay Nagar, Marol-Maroshi
Road, Andheri (E), Mumbai-400 059. ….Respondent
Mrs.B.P. Jakhade for the Appellant.
Mr.P.M. Havnur for the Respondent.


CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ.

DATE : 18TH JULY, 2009.


ORAL JUDGMENT ( PER B.H. MARLAPALLE, J.) :-
1. Both these appeals filed by the respective spouses arise from a common judgment and order dated 31.12.2004 passed by the Family Court at Pune in Petition No.A-978 of 2002 and hence they are being decided by this common judgment.


2. The parties were married at Mumbai on 12.7.1994 as per Hindu rites and they co-habitated at Dahisar where a daughter by name Aishwarya was born to the couple on 21.12.1995. As per the husband, the wife did not return to the matrimonial home after the daughter was borne. The husband claims that the wife abandoned the matrimonial home, whereas it is the case of the wife that she was thrown out of the matrimonial home before the birth of the child that is some time in September, 1995. In July, 1996, the wife’s younger sister Anju was married and the husband along with his family member attended the said marriage. The couple stayed together from 22 nd to 26th July, 1996 in the house of the wife’s parents but after 26th July, 1996, the wife did not return to the matrimonial home. It appears that the wife was working with M/s.R.G. Stone Hospital and she claimed that she left the said job from 4.5.1998. The husband issued a legal notice on 30.4.2001 (Exhibit-23, which was reply on 10.5.2001, Exhibit-24). Second legal notice was issued on 8.6.2001 (Exhibit-25, which was replied on 15.6.2001, Exhibit-26). Third legal notice was issued on 12.6.2001 (Exhibit-27) and consequently a joint meeting between the two parties on 6.5.2002 to resolve matrimonial dispute was held. It was decided in the said meeting that both the parties should forget the past and start staying together. The wife conveyed that she was ready and willing to co-habit with the Petitioner and her father also supported the same plea and stated that his daughter must return to the matrimonial home at Dahisar. Despite the settlement, there was no cohabitation between the parties and therefore, Petition No.A-978 of 2002 was moved by the husband to seek a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. The said Petition was opposed by the wife. The following issues were framed by the Family Court and answered accordingly in the impugned judgment :-

ISSUES FINDINGS
     1) Does the Petitioner proves that the Respondent has without any reasonable excuse withdrawn
      from his society ? Yes
     2) Whether the Petitioner is entitled to a decree of restitution of conjugal rights ? Yes
     3) Whether the Petitioner is entitled for maintenance Yes @ Rs. from the Petitioner for herself or the   
     child ? 2500/- per month for
     4) If yes, what should be the quantum ? herself & @ Rs.3000/- p.m. for the minor daughter.
     4-A) Whether the Respondent is entitled to Does not return of her streedhan from the Petitioner ?
     survive.
     5. What order and decree ? As per final order.


3. However, it appears that when Petition No.A-978 of 2002 was decided by the earlier judgment dated 30.4.2004, the Family Court had not recorded its findings on issue Nos.1 and 4-A. The said judgment was the subject matter of challenge in Family Court Appeal Nos. 94 of 2004 and 95 of 2004 and by a common judgment dated 18.8.2004, the Appeals were disposed off and the Petition filed by the husband was remanded to the Family Court to record its findings on issue Nos.1 and 4-A.


4. The husband examined himself and Kiran R.Vishvira, who is the partner of a firm by name M/s.Manav Mandir Builders. The wife examined herself and her father Gopal Kishan Chawla. She also examined Ajay Gulabchand Malpani, Treasurer of the Housing Society at Vasai and Dr.Manish Bansal, the Managing Director of R.G. Stone Hospital. Written arguments were submitted before the Family Court and the Petition filed by the husband came to be allowed in terms of the following order :-
“The Respondent is directed to restore conjugal rights with the Petitioner forthwith. The Petitioner is directed to pay Rs.2500/- per month towards maintenance of the respondent and Rs.3000/- per month towards maintenance of the minor daughter Aishwarya, in aggregate Rs.5500/- per month from the date of order till the Respondent restitutes his conjugal rights.


5. The husband has challenged the directions to pay the maintenance to the wife despite the fact that the decree under Section 9 of the said Act has been passed in his favour. Whereas the wife has challenged
the decree passed under Section 9 of the said Act and claimed that the Family Court did not consider the harassment and ill-treatment given to her in the matrimonial home and consequently she was justified in staying away from the husband.


6. Mrs.Jakhade, the learned counsel for the husband submitted that in Petition No.A-978 of 2002, the wife did not file any application for any maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the Act for maintenance pendant-lite. She also pointed out that the decree of restitution of conjugal rights was passed against the wife and surprisingly and equally shocking the Family Court directed the husband to pay maintenance to the wife and as per
Mrs.Jakhade, this order itself is self-contradictory and the decree for restitution of conjugal rights became a nullity as the wife continued to stay away from the husband and the husband was required to deposit the maintenance amount every month. Mr.Havnur, the learned counsel for the wife on the other hand submitted that the decree for restitution of conjugal rights was grossly erroneous and the Family Court was not justified, in the facts of this case, to record its findings in the affirmative on issue No.1 framed by it. He also submitted that as the wife was thrown out of her matrimonial home along with her daughter much before the daughter was born and she had to maintain herself and the daughter, the Family Court was justified in granting maintenance by the impugned order. We are, therefore, required to examine :-
     i) Whether the decree of conjugal rights passed under Section 9 of the Act in favour of the husband is sustainable and ;
     ii) Whether the Family Court was right in law to direct the husband to pay maintenance to the wife after it had passed a decree under Section 9 of the Act in favour of the husband and directed the wife to join the husband in the matrimonial home.


7. So far as the first issue is concerned, the Family Court has referred to the oral depositions of the husband, wife and her father. As is required in law, both the parties were referred to the Marriage Counsellor who submitted her first report on 17.10.2002 (at Exhibit-3). The said report indicated that both the parties had expressed their wish for reconciliation and for resumption of co-habitation, but the second report of the Marriage Counsellor dated 17.3.2003 (at Exhibit-14) was negative and it stated that reconciliation between the parties was not possible and they were agreeable for divorce but there was a dispute regarding the quantum of alimony. A joint meeting between them on 6.5.2002 with the intervention of a common family friend by name Mr.Jain and the reconciliation therein was not disputed between the parties and the wife had shown her willingness to live and co-habit with the husband. The father of the wife in his depositions before the Family Court also stated that he wished that his daughter could return to her matrimonial home at Dahisar. The deposition of the wife also went to show that despite various allegations made by her against the husband and his family members about cruelty and ill-treatment, she wanted to go and stay at Dahisar and she was keen to save her marriage. She had categorically stated in the pleadings as well as in her depositions that she was ready and willing to co-habit with the Petitioner and she also reiterated about the compromise and to bury the past. The husband had also assured the parents of the wife that he take her care. The Family Court therefore, held that the wife had condoned the acts of the alleged cruelty and ill-treatment. In paragraph 31 of the impugned judgment, the Family Court recorded its surprise about the wife in the following words :-
“31. It is very peculiar that the petitioner has filed this petition for restitution of conjugal rights and the respondent in her pleadings as well as in her evidence has deposed that she is also ready and willing to co-habit with the petitioner. The father of the respondent in his evidence has also deposed that he desires that the respondent co-habits with the petitioner. It is also an admitted fact that meeting of the family members was held with the common friend Mr.Jain house and it was agreed that they would live together. The father of the respondent has admitted in his cross- examination that a compromise was arrived at for the petitioner and the respondent to stay together. He also admitted that the petitioner does not own any property at Dahisar. During the pendency of the proceedings various attempts were made for the parties to resume their co- habitation in view of the desires of both the parties, but failed because the petitioner wants that the respondent should resume his conjugal rights at Vasai where he owns his ownership flat, and the respondent wants to return and stay at Dahisar, where she was living from the day after her marriage till she left the house.”

8. The Family Court recorded the finding that the wife was not justified and she had no good reason to stay away from her husband and she had withdrawn from the society of the husband without any  reasonable excuse. Having referred to the evidence placed before the Family Court by the respective parties, we are satisfied that these findings recorded by the Family Court cannot be faulted with and the decree of restitution of conjugal rights under Section 9 of the said Act was rightly passed in favour of the husband. We are informed that till this date, the wife has not submitted to the said decree and she continues to stay with her parents. In fact the husband could have been justified in asking for dissolution of the marriage under Section 13(1-A) of the said Act on the ground that there was no resumption of co-habitation between the parties for one year or thereafter, after the decree under Section 9 of the said Act was passed, but he has not done so and the leaned counsel for the husband stated before us that the husband is keen to continue with the marriage and desires that his wife along with daughter Aishwarya to join the matrimonial home. We are also informed and it was the same case before the Family Court as well that the husband is willing to stay away from other family members in his ownership flat at Vasai. However, the wife insists that he should shift to a place in Andheri which is close to her parent’s house and also to the daughter’s school. Consequently the decree passed under Section 9 of the said Act has remained on paper.


9. So far as, issue No.1 maintenance is concerned, pending the proceedings before the Family Court at the behest of either of the parties, wife was entitled to apply for interim maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 24 of the Act. She did not submit any such application nor did she file a counter claim in the Petition filed by the husband. The Family Court in its second round of the judgment, held that the wife was not justified in staying away from her husband and directed her to submit to the decree under Section 9 of the Act. However while doing so, it proceeded to consider the expenditure incurred by the wife while she was staying away from her husband. The Court noted that the wife had no employment since May, 1998 on the basis of the evidence of Dr.Bansal, the Managing Director of R. G. Stone, Urological Research Institute, corroborated by the evidence of her father and thus she was without any source of income. The Court further observed as under :-
     “It can therefore be held that the Respondent has no source of income and hence the Respondent is
     entitled to claim maintenance for herself. As regards the daughter, it is moral, social and legal
     obligation of the Petitioner father to maintain her. The Petitioner has no where in his pleadings   
     stated    as to what he is doing and what is his income. But in reply to the interim application it is
     observed that it is an admitted fact that the Petitioner is dealing in shares. He has stated that his      
     average income is Rs.7000/- per month Hence considering the status of the parties and needs of the  
     Petitioner for herself and the minor daughter, and that the Petitioner has no other dependents upon
     him, the cost of living, it can be held that he is capable and able to pay Rs. 2500/- per month towards
     the maintenance for the wife and Rs.3000/- per month towards the maintenance for minor daughter, in
     aggregate Rs.5500/- per month from the date of order till the Respondent restitutes to his conjugal
     rights.”


10. In the case of Chand Bhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406, on the rights of the wife to receive any maintenance either under Section 18 of Hindu Adoptions and Maintenance Act or under Section 24 of the said Act, the Supreme Court stated as under :-
     “23. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law  
     relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act
     itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as  
     well as restitution of conjugal rights, judicial separation, nullity of marriage, divorce, legitimacy of  
     children and other allied matters. Where the statute expressly codifies the law, the court as a  
     general    rule, is not  at liberty to go outside the law so created, just on the basis that before its 
     enactment another law prevailed. Now the other law in the context which prevailed prior to that was
     the uncodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be
     claimed by a Hindu wife through court intervention and with the aid of the case-law 10 developed.
     Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and
     that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law
     relating to adoptions and maintenance among Hindus. Section 18(1) of the Hindu Adoptions and
     Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her
     lifetime. Sub-section (2) of Section 18 grants her the right to  live separately, without forfeiting her
     claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of
     his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage
     and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the
     other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is
     durated (sic) on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu
     Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that
     either her marital status has been strained or affected by passing a decree for restitution of conjugal
     rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of
     nullity or divorce, with or without her consent. Thus when her marital status is to be affected or
     disrupted the court does so by passing a decree for or against her. On or at the time of the happening
     of that event, the court being seisin of the matter, invokes its ancillary or incidental power to grant
     permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this
     incidental or ancillary obligation when moved by an application on that behalf by a party entitled to
     relief. The court further retains the power to change or alter the order in view of the changed
     circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken
     marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu
     Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as
     the case may be, dependent on the court passing a decree of the kind as envisaged under Sections 9 to
     14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial
     court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary
     or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then
     to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure
     later  in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal
     scheme revolutionizing the law applicable to Hindus.”


11. In the case B.P. Achala Anand v. S. Appi Reddy and another, AIR 2005, SC 986, a three Judge Bench held that Section 18 of the Hindu Adoptions and Maintenance Act confers a right on a wife to be maintained by her husband during her lifetime and such a right for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. Section 25 of the Act enables the Court to pass an order for providing alimony and maintenance in favour of the
divorced wife. The Court further observed that on the status of the wife being terminated by a decree for divorce under the Act, rights of divorced wife seem to be cribbed, confined and cabined by the provisions of and to the rights available Sections 25 and 27 of the said Act.


12. When the husband has succeeded in obtaining a decree of restitution of conjugal rights against the wife, it is implied that the wife was required to join the company of the husband at her matrimonial home and therefore, there is no question of maintenance at least from the date of the said order. If the wife is directed to be paid maintenance despite the said decree, reluctance of the wife to join the husband would be further strengthened and she would be encouraged to stay away from the husband despite the decree passed by the Court. The decree for restitution of conjugal rights would be rendered inoperative and for such an act of the wife, the husband would be penalized to pay the maintenance to the wife, who does not subject to the decree passed by the Court. Such a direction would be incentive to frustrate the decree passed under Section 9 of the Act. It is well settled that if such a decree is passed at the instance of the wife and against the husband, the Court would be justified in directing the husband to pay maintenance to the wife till he resumes cohabitation with her or calls upon her to join him at the matrimonial home pursuant to the decree passed by the Court in her favour. Such is not a case before us. We are, therefore, satisfied that the Family Court acted without jurisdiction in directing the husband to pay maintenance at least from the date when the impugned order was passed and therefore, the impugned order to that extent is required to be set aside. However, we are not inclined to interfere in the maintenance granted to the daughter.


13. In the premises, Family Court Appeal No.20 of 2005 fails and the same is hereby dismissed. Family Court Appeal No.44 of 2005 succeeds partly and the directions to pay an amount of Rs.2500/- per month by way of  the maintenance to the wife are hereby quashed and set-aside. Undoubtedly till the wife resumes cohabitation with the husband, the order for access passed by this Court dated 20.10.2006 shall continue to operate.

14. The parties to bear their own costs.
(S.J.VAZIFDAR, J.)

(B.H.MARLAPALLE, J.)