ANDHRA PRADESH HIGH COURT RULES TO REGULATE PROCEEDINGS UNDER THE HINDU MARRIAGE ACT, 1955

       A.P. HIGH COURT RULES TO REGULATE PROCEEDINGS UNDER THE HMA, 1955

1. Definitions.—

(i) ‘Act’ means the Hindu Marriage Act, 1955 (Act of 25 of 1955).

(ii) ‘Court’ means the Court mentioned in Section 3 (b) of the Act.

2. Form of proceedings.—The following proceedings under the Act shall be entitled by original petitions.
(i) under Section 9 for restitution of conjugal rights,
(ii) under sub-section (1) of Section 10 for judicial separation;
(iii) under sub-section (2) of Section 10 for rescinding a decree for judicial separation;
(iv) under Section 11 for declaring a marriage null and void;
(v) under Section 12 for annulment of a marriage by a decree of nullity;
(vi) under Section 13 for divorce;
(vii) U/s 26 to make order and provisions with respect to the custody, maintenance and education of children.

3. Other proceedings.—Every other proceeding subsequent to petition shall be by an interlocutory application.

4. Cause title.—Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in Form I and shall set forth the provisions of the Act under which it is made.

5.Petition.—
(a) Every petition under Act shall be accompanied by a certified copy of entry relating to marriage in question in Hindu Marriage Register maintained U/s 8 of Act, where such marriage has been registered under Act.
(b) Every petition for divorce on any grounds, mentioned in clauses (i) and (ii) of Section 13 (1A). of Act1 shall be accompanied by a certified copy of decree for judicial separation or for RCR, as case may be.

6. Contents of petition.—(1) Every petition shall state—
(a)   the place and the date of the marriage.
(b)   the names of the parties and their occupation;
(c)   the place and address where the parties reside or last resided together within the jurisdiction of the Court;
(d)   the names of the children, if any, of the marriage together with their dates of birth or ages;
(e)   if prior to date of petition there has been any proceeding under Act between parties to petition, full particulars thereof;

1. Now Clauses (i) and (ii) of Section 13(1A).
(f)   if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under which the respondent withdrew from the society of the petitioner.
(g)   if the petition is for judicial separation, matrimonial offence alleged or other grounds upon which the relief is sought, together with full particulars thereof so far as such particulars are known to the petitioner, e.g.—
(i) in the case of alleged desertion, the date on and from which and the circumstances under which it began;
(ii) in the case of cruelty or s*xual intercourse with any person other than his or her spouse, the specific acts of cruelty or s*xual intercourse and the occasion when and places where such acts were committed together with the name and address of the person or persons with whom the respondent had s*xual intercourse;
(iii) in case of virulent form of leprosy or venereal disease in a communicable form, when such ailment began to manifest itself, nature and the period of the curative steps taken together with the name and address of person who was treated for such ailment and in the case of venereal disease that it was not contracted from petitioner;
(iv) in case of unsoundness of mind, time when such unsoundness began to manifest itself, nature and period of any curative steps taken together with name/address of person who was treated for such unsoundness of mind;
(h) if petition is for divorce or judicial separation the matrimonial offence alleged or other grounds upon which relief is sought together with the full particulars thereof so far as such particulars are known to petitioner, e.g.
(i) in the case of adultery, the specific acts of adultery and the occasion when and place where such acts were committed together with the name and address of the person with whom such adultery was committed;
(ii) in the case of incurable unsoundness of mind the time when such unsoundness began to manifest itself, the nature and period of any curative steps taken together with the name and address of the person who was treated for such unsoundness of mind;
(iii) in case of virulent and incurable form of leprosy or venereal disease in a communicable form, when such ailment began to manifest itself, nature and period of any curative steps taken together with name/address of person who was treated for such ailment;
(iv) in case of presumption of death, the last place where the parties lived together, date when and place where respondent was last seen or heard of as alive and the steps, if any, taken to ascertain his or her whereabouts;
(i) if petition is for a decree of nullity of marriage on ground specified in clause (c) or clause (d) of sub-section (1) of Section 12 of Act, time when facts relied on were discovered and whether or not marital intercourse with consent of petitioner took place after discovery of said facts.
(2) The petition shall set out at the end, the relief or reliefs sought including any claim for.
(i)  custody, care and maintenance of children;
(ii) permanent alimony and maintenance;
(iii) costs.
Where a claim is made under clause (ii) above, the petition shall specify the annual or capital value of the respondent’s property, the amount of his or her annual earnings and other particulars relating to his or her financial resources and particulars relating to the petitioner’s income and other property.

7. Contents of written statement.—Every written statement in answer to a petition for restitution of conjugal rights shall set out the particulars as far as may be set out in clauses (g), (h) and (i) of sub-rule (1) of Rule 6.

8. Co-respondent.—(1) Where a husband’s petition alleges adultery on the part of respondent, the alleged adultery shall, if he is living, be made a co-respondent in the petition.
Provided, however, that in case the adulterer’s name, identity or where¬abouts are unknown to the petitioner in spite of reasonable enquiries made and the Court is satisfied that it is just and expedient so to do, it shall, on the application of the petitioner, dispense with the naming of the co-respondent.
(2) In every petition U/s 13(2)(i) of Act, petitioner shall “other wife” mentioned in that Section a co-respondent
(3) In every petition under Section 11 of the Act, on the ground that the condition in Section 5(i) is contravened, the petitioner shall make the spouse, alleged to be living at the time of the marriage, a co-respondent.

9. Damages and costs against co-respondent.—(1) Where damages are claimed, the Court shall assess the damages and direct in what manner the damages, if any, awarded shall be paid or applied.
(2) Court may also direct the whole or any part of the costs of the petition shall be paid by the co-respondent:
Provided that the co-respondent shall not be ordered to pay petitioner’s costs—
(a)   if respondent was, at time of the adultery, living apart from her husband and leading life of a prostitute; or
(b)   if co-respondent had not, at the time of the adultery, reason to believe respondent to be a married woman.
(3) The Court may assess damages and make an order for payment thereof or of costs notwithstanding that the respondent or the co-respondent or both of them have remained ex parte.

10. Application for maintenance pendente lite and for permanent alimony and maintenance.—
(a) Every application for maintenance pendente lite, permanent alimony and maintenance, or for custody, maintenance and education expenses of minor children, shall state the average monthly incomes of petitioner and the respondent, the sources of these incomes, particulars of other movable and immovable property owned by them, number of dependants on petitioner and respondent and the names and ages of such dependants.
(b) Such application shall be supported by an affidavit of the applicant.

11. Application for leave under Section 14 of the Act.—(1) Where any party to a marriage desires to present a petition for divorce within one year of such marriage, he or she shall obtain leave of the Court under Section 14 of the Act, an ex parte application made to the Court in which the petition for divorce is intended to be filed.
(2) Appln shall be accompanied by petition intended to be filed bearing prescribed court-fee and in accordance with rules. Appln shall be supported by an affidavit made by petitioner setting out particulars of exceptional hardship to petitioner or exceptional depravity on part of respondent on basis of which leave is sought.
(3) The evidence in such an application may, unless the Court otherwise directs, be given by affidavit.
(4) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of said order. The petitioner within a week of the date of the said order shall file sufficient number of copies of application for leave and order of the Court thereon and of the petition for divorce for service upon respondents in petition.

12. Service of copy of application for and order granting leave on the respondents and procedure after Service.- (1) When the Court grants leave under the proceeding rule, a copy of the application for leave and order granting leave shall be served on each of the respondents along with the notice of the petition for divorce.
(2) (a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her written statement the grounds with particulars on which the grant of leave is to be contested.
(b) The Court may, if it so deems fit, frame, try and decide the issue as to the propriety of the leave granted as a preliminary issue.
(c) The Court may at the instance of either party, order the attendance for examination or cross-examination of any deponent in the application for leave under the preceding rule.

13. When a petition is admitted, the chief ministerial officer of the Court assigns a distinctive number to the petition and all subsequent proceedings on the petition shall bear that number.

14. Along with the petition the petitioner shall furnish a copy thereof for service on the respondent and if a co-respondent has been impleaded, an additional copy for service on him, together with the fee prescribed under the Andhra Court Fees and Suits Valuation Act, 1956, for service of notices.

15. (1) Notice of the petition shall be in Form No. II for settlement of issues and shall require the respondent and the co-respondent, if one is named in the petition, to enter appearance in person or by pleader and file a written statement not less than seven days before the day appointed therein.

(2) The notice together with a copy of petition shall be served on the respondent and co-respondent, if named in the manner prescribed for service of summonses in suits not less than 21 days before day appointed therein.

16. Transmission of certified copy of decree.— Court shall send a certified copy of every decree for divorce or nullity or dissolution of marriage to Registrar of Marriages in charge of Hindu Marriage Register, if any.

17. (1) Appeal to High Court from decree & orders of District Court shall be posted before a Bench of 2 Judges
(2) Such appeals shall be governed by the rules of High Court, Appellate Side, as far as they may be applicable.
(3) In every such appeal notice shall be issued to the co-respondent, if any.

                                                                   FORM NO. I

                          IN THE COURT OF THE DISTRICT JUDGE  IN THE CITY CIVIL COURT
                                                              O. P.  No……of  20…….
                                             In the matter of the Hindu Marriage Act, 1955

AB……Petitioner

Vs

CD……..Respondent
Petition under Section …….of the Hindu Marriage Act, 1955 and
Rule……..of the Rules under the Hindu Marriage Act.

                                                                    FORM NO.II                                                             
                                                                        [Rule 15]

                         IN THE COURT OF THE DISTRICT JUDGE  IN THE CITY CIVIL COURT
                                                                O. P.  No……of  20…….
                                                   In the matter of the Hindu Marriage Act, 1955

AB……Petitioner

Vs

CD……..Respondent

Petition presented on    ……………………
Petition filed on       ……………………
Notice issued on      ……………………

Whereas on …………day of………..20……, above named petitioner filed a petition against respondent for (specify relief) you are hereby required to appear in this Court on ……..day of………20……..at 10.45 a.m.  in forenoon in person or by pleader duly instructed and able to answer all questions relating to above proceeding.

Also take notice that in default of your appearance on the aforesaid day the issues will be settled and the petition heard and determined in your absence. You shall also bring with you or send by your pleader any document which the petitioner desires to inspect and any document on which you intend to rely in support of your defence. You are required to file a written statement in Court on or before the……….day of………20…………

Given under my hand and the seal of this Court on the……….day of. 20………..

District Judge
Chief Judge Note.—
(1) A copy of the petition accompanies this notice.
(2) This notice should be served not less than 21 days before the day fixed above for settlement of issues.
(3) Should you apprehended that your witnesses will not attend of their own accord, you can have summons issued from this Court to compel the attendance of any witness and the production of any document that you have a right to call on witness to produce on applying to the Court and on depositing the necessary expenses.


This notice has been taken out by ...............................for the petitioner.


A.P. HIGH COURT RULES TO REGULATE PROCEEDINGS UNDER THE HMA, 1955

A.P. HIGH COURT RULES TO REGULATE PROCEEDINGS UNDER THE HINDU MARRIAGE ACT, 1955

ANDHRA PRADESH HIGH COURT RULES TO REGULATE PROCEEDINGS UNDER THE HINDU MARRIAGE ACT, 1955

ANDHRA PRADESH HIGH COURT RULES TO REGULATE PROCEEDINGS UNDER THE HMA, 1955

ANDHRA PRADESH FAMILY COURTS (HIGH COURT) RULES, 1995

                       ANDHRA PRADESH FAMILY COURTS (HIGH COURT) RULES, 1995

Roc. No.78-A/SO/95:- In exercise of the powers conferred by Section 21 of the Family Courts Act, 1984 (Central Act 66 of 1984) the High Court of Andhra Pradesh hereby makes the following rules to regulate the proceedings for the Family Courts in the State of Andhra Pradesh.

1. (a) Short Title:- These rules may be called the Andhra Pradesh Family Courts (High Court) Rules, 1995.

(b) Commencement: These rules shall come into force, with effect from the date of publication of these rules in A.P. Gazette..

(c) Application: These rules shall apply to the Family Courts established in the State of Andhra Pradesh under Section 3 of the Family Courts Act, 1984.

2. Definitions:- In these rules, unless the context otherwise requires;
(a) 'Act' means the Family Courts Act, 1984.
(b) 'Court' means the Family Court established under sub-section (1) of the Section 3 of the Act.
(c) 'High Court' means the High Court of Andhra Pradesh.
(d) 'Petition' shall include an application under Chapter-IX of the Code of Criminal Procedure, unless the subject mater or context otherwise requires.
(e) All other words and expressions used but not defined these rules and defined in the Act or in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973, shall have the meaning respectively assigned to them in the Act or as the case may be.

3. (a) The working hours and sittings of the Family Courts shall be as determined by the High Court in their application to the Civil Courts, except that the High Court shall fix in each calendar year the working hours and sittings of the Family Courts during vacations and holidays.
(b)The place or places where the Family Court shall sit shall be as specified by the High Court from time to time by an order in this regard.
(c) The family Court shall hold its sittings in open or in camera as determined by it in each case, but shall hold the proceedings in camera if either party so desires.
(d) The Family Court may hold its sittings outside normal working hours and on holidays if the Judge of the said Court considers it necessary to do so in the circumstances of the case, with the prior notice to parties, and to such other person or persons as the Judge may considers it necessary.
(e) Notwithstanding anything contained above, if in any particular case the Judge is of the opinion that it will tend to the general convenience of the parties or of the witnesses or for any other parties to hold its sittings at a place other than its ordinary place of its sittings but within its limits of territorial jurisdiction, the Judge may do so for reasons to be recorded in writing and prior notice to all parties and to such other persons as the Judge may consider necessary. The Judge shall intimate the High Court about such sittings soon after a decision is taken in this behalf.
(f) The Family Court shall function on all days throughout the year except on authorised holidays as declared by the High Court.
(g) The Subordinate Courts calendar shall be the calendar of the Family Court except that there will be no vacations.
(h) No act of the Family Court shall be invalid for holding or continuing its sittings at any place of its choice on any holiday or outside normal working hours when such sittings is informed to the parties in advance.

4. All proceedings before the Family Courts shall be instituted by a petition in Form No.1 appended to these Rules, duly verified by the petitioner.

5. All interlocutory applications in the proceedings already instituted shall be entertained if verfied by the applicant in the manner as in Form No.1.

The petition in Form No.1 or any interlocutory application shall be in any language in Schedule VIII to the Constitution of India. There shall be no Court-fee or any other fee in respect of the petition in Form No.1 or any interlocutory application in the proceedings before the Family Court.

6. Notice of the proceedings including in any interlocutory application shall be issued in Form No.II appended to these rules along with a copy of the petition or the application as the case may be.

7. The Court shall ordinarily fix a date atleast three weeks from the date of ordering notice for the appearance of the opposite party. The Court can fix any later or earlier date if the proceedings so demand.

8. The provisions in Order 1 of the Code of Civil Procedure for addition of a necessary party or a proper party shall be applicable to a proceeding before the Family Court.

9. Proceedings before the Court shall be taken up in the presence of the parties, and a legal practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in the interests of Justice, and the fee, if any shall be paid to him as prescribed under the Rules framed under Section 23 of the Act.

10. The Court shall record only the substance of what the witness deposes and prepare a memorandum accordingly which shall be read and explained to the witness and the memorandum of the said substance recorded by the Court shall be signed by the witnesses and the Presiding Officer of the Court and shall form part of the record. The evidence taken on affidavit, if any, shall also form part of the record of the Court. The Judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.

11. The Court shall furnish to the parties to the proceedings before it a copy of the judgment certified to be a true copy free of cost.

12. Appeal under Section 19(1) of the Act shall be in the manner of appeals against the original decree or order in a civil proceedings, but there shall be no Court fee payable for the appeal.

13. The Rules framed under the Guardians and Wards Act, 1890 by the High Court and published in Andhra Pradesh Gazette II, dated 11-2-1993 shall be applicable in matters relating to Guardians & Wards Act, 1890 to the extent they are not inconsistent with the provisions of the Act or the Rules framed thereunder.

14. Application for Guardianship:- All petitions for guardianship other than applications over which the High Court has jurisdiction, shall be filed before the Family Court.

15. Contents of the Application:- Every petition for guardinship, when it is by a person other than the natural parent or natural guardian of the child shall be accompained by a Home Study Report of the person asking for such guardianship and his/her spouse, if any, prepared by an approved Association of Social Welfare Agencies etc., or a suitably trained social worker, from the list of agencies and/or persons for the purpose of their association with the Court approved by the Government in the rule made under Section 5 of the Act, in consultation with the High Court.

16. In case of a child placed in guardianship the Court may, at any time direct a counsellor attached to the Court to supervise the placement of the child and submit a Report thereon to the Court in such manner as the Court may deem fit.

17. A Child study report of the child proposed to be taken in guardianship together with a photograph of the child should be filed in all petitions for guardianship, as required under Rule 23 of the Rules framed under the Guardian and Wards Act, 1890. Such report shall be in Form No. 3 prescribed in the appendix when the child is institutionalised or Court committed. The report shall be countersigned by the Petitioner.


ANDHRA PRADESH FAMILY COURTS RULES, 1995

A P FAMILY COURTS RULES, 1995

ANDHRA PRADESH FAMILY COURT RULES, 1995

A P FAMILY COURT RULES, 1995

No maintenance to wife, if wife staying separately without sufficient cause

                                         IN THE HIGH COURT OF CALCUTTA


Partha Pratim Basak

Vs

Arundhuti Basak on 7 June, 2007

Bench: P Sinha

JUDGMENT
P.N. Sinha, J.

1. This revisional application is directed against the order dated 10.4.06 passed by the learned Additional Chief Judicial Magistrate (hereinafter called the ACJM), Barrackpore in connection with Case No. M/195 of 2005 thereby allowing the application under Section 125 of the Cr. PC filed by the opposite party (in short the O.P.)/wife and granting her maintenance @ Rs. 1000/- per month for herself and @ Rs. 700/- per month for her minor son and directing the petitioner to pay maintenance from the date of filing of the application under Section 125 of the Cr. PC.



2. Mr. Jiban Ratan Chatterjee, the learned Advocate for the petitioner husband submitted that the petitioner does computer repairing job and his income is very meagre. On 18.4.05, the O. P./wife left the matrimonial home and went away to her father's house. Since then the O.P. did not come back to husband's house in spite of repeated efforts made by the husband petitioner to take her back. The learned Magistrate who allowed the application under Section 125 of Cr. PC did not appreciate the evidence and materials on record and failed to realise that the wife left matrimonial home on her own without any just and proper cause. In view of provisions of Sub-section (4) of Section 125 of the Cr. PC, if a wife refuses to stay with the husband without any just cause, she cannot claim maintenance. The learned Magistrate did not consider the relevant provisions of Section 125(4) of the Cr. PC.



3. Mr. Chatterjee next contended that the learned Magistrate did not consider the income of the husband. In the written objection the husband specifically mentioned that working as a computer repairing service he earns hardly Rs. 3400/- per month. No general diary or FIR was lodged by the O.P. at police station concerning torture on her which she alleged in her application under Section 125 of the Cr. PC. The allegation of torture for four years accordingly was not established when there was no paper or document to show torture on her for a continuous period of four years. The learned Magistrate without proper evidence held that there are conditions in favour of the wife which requires granting of maintenance to her. Such an observation of the learned Magistrate holding unfavourable condition of the wife was without any basis and evidence and based on surmise and conjecture. On the contrary, the evidence of the wife reveal that after marriage at least thrice she went to Puri with her husband and was leading a happy conjugal life. On 18.4.05 she went away to paternal home with her father and thereafter, she did not come back and without any just cause she is staying at her father's house. The wife is not entitled to claim any maintenance in view of the provisions of Section 125(4) of the Cr. PC and the order of the learned Magistrate granting her maintenance should be set aside. In support of his contention Mr. Chatterjee referred to the decisions in Gita Das @ Sangita Das v. Tapas Das reported in 2004(1) CHN 237 and Kumar Sankar Chakraborty v. Juthika Chakraborty reported in 1996(2) CLJ 502.


4. On the contrary, Ms. Dalia Roy, the learned Advocate for the O.P. wife submitted that there were unfavourable conditions in the matrimonial home for which the wife could not live with her husband and had to leave the matrimonial home. The husband did not take any information of her during the period while she was staying in her father's house. The husband did not pay any money or maintenance to the wife or to the minor child and, this circumstance is sufficient to show negligence on the part of the husband-petitioner to maintain his wife and child. The evidence of the husband reveals that he has mobile phone, land phone and visiting card. Possession of mobile and land phone as well as printing visiting card clearly suggests that the income of the husband is high and he has sufficient means to pay maintenance to the wife and the child. The learned Magistrate made no mistake by allowing the prayer of the O.P./wife under Section 125 of the Cr. PC and granting maintenance to her and her minor son.


5. I have duly considered the submissions made by the learned Advocates for the parties. Before entering into the merit of the revisional application, I think it expedient to mention, in short, the history or background of the case which was started on the basis of the application under Section 125 of the Cr. PC filed by the O.P./wife. In her application under Section 125 of the Cr. PC, the O.P./wife alleged that she was married with the husband-petitioner on 31.1.01 and out of their wedlock a son was born to them on 201.2.01. She was assaulted on several occasions and was tortured both physically and mentally by her husband at the instigation of mother-in-law and other in-laws. She was confined in room and was not provided with adequate food and cloth and was also not allowed to talk with anybody including her parents. At the time of marriage it was disclosed that her husband is a computer engineer but after the marriage she learnt that her husband was a class I 'mistri' for repairing computer. She of course alleged that, her husband runs business under the name and style "Computer Home" at his residential address. She mentioned in the application that her husband earns Rs. 15,000/- per month and in spite of sufficient income he was not looking after her. The husband used to return home at night having liquor and when she protested she was assaulted, and finally on 17.4.05 she was driven out of matrimonial home. She informed the matter to her father over telephone and on the following day at morning her parents came to her matrimonial home and she went away to her parental home with her parents. Her in-laws at that time misbehaved with her parents. She claimed maintenance @ Rs. 3,000/- for herself and Rs. 1,500/- per month for her minor son.


6. The husband-petitioner as the O.P. in the Court below contested the matter by filing written show-cause wherein he denied all the material averments made in the petition under Section 125 of the Cr. PC. He inter alia contended that during the time of birth of their son all the medical expenses were paid by him. He is the only son of his parents and his only sister was already married elsewhere and in the matrimonial home his wife was receiving all kinds of love and affection from his parents. The wife used to visit her parental home at least once in each fortnight as her parents house is at a stones throw from his house. At least thrice i.e. on 20.2.01, 4.3.04 and 24.2.05 he visited Puri with his wife. He is conducting the job of repairing computers in his house but his income is hardly Rs. 3,500/- per month. The allegation of coming late at home and taking liquor and assaulting her are false and motivated. The parents of the wife came to their house on 18.4.05 and took away his wife for some medical treatment. He requested his in-laws not to take away his wife but, her parents paid no heed and in spite of his objection took away his wife with them and since then his wife did not come back to his house. Subsequently, he discovered that the wife had taken away all the ornaments and cash which was kept in the almirah. It establishes that the averment made in the petition by the wife that she was driven out in single cloth was false. He went to take back his wife several times but his wife did not come back. He and his parents are still eager to take back his wife and son with full respect. He even sent a letter through their Advocate but his wife was reluctant to pay any honour to his requests. The wife is residing in her parents house without any just cause and accordingly she is not entitled to claim any maintenance. He has made arrangement of opening premium of medicines for them including golden trust policy with National Insurance Company Ltd. He took all the steps for her education after the marriage for which she got necessary qualification to earn and manage herself.


7. On the basis of such application and written objection the learned Magistrate recorded evidence of both parties and by the impugned order dated 10.4.06 allowed the application under Section 125 of the Cr. PC and granted maintenance @ Rs. 1,000/- per month in favour of the wife and @ Rs. 700/- per month in favour of the son of the parties and made the maintenance order effective from the date of filing of the application under Section 125 of the Cr. PC.


8. From evidence of the parties the marriage as well as birth of the son out of their wedlock is admitted. It was the allegation of the wife that she was subjected to both physical and mental torture in her matrimonial home on demand of more articles though during marriage articles were gifted. On 18.4.05 her father came to her in-laws house to settle the dispute amicably but her husband and her other in-laws misbehaved with her father, and thereafter, drove out her with her son in a single cloth. On 17.4.05 her husband tried to kill her and she informed the matter to her father over phone from STD booth, and thereafter, on 18.4.05 her father came to her in-laws house to settle the matter. Since 18.4.05 her husband did not enquire about her and did not pay her any money or maintenance. She stated in her evidence that her husband is a class I 'mistri' of computer.


9. Her cross-examination reveals that she stated in Court specifically that she would never go to her in-laws house. She further stated that she is not willing to stay with her husband considering insecured condition in her in-laws house. Her evidence reveals that she stayed in her matrimonial home for four years but she never lodged any general diary or FIR at police station regarding physical and mental torture on her during her stay in her matrimonial home. Her evidence reveals that her father-in-law is above 70 years in age and her mother-in-law is above 60 years in age and, in matrimonial home besides father-in-law and mother-in-law, she and her husband were residing. She admitted that she went to Puri with her husband thrice. At the time of delivery of their son she went to her father's house only one month prior to birth of her son. In Court she even stated that she is not interested to talk with her husband. She is not aware whether her husband has opened one mediclaim policy for herself, for her son and started one insurance policy with the National Insurance Company. Her evidence reveals that she is the only daughter of her father. She stated that on 18.4.05 her father stayed in her in-law's for about one hour and she would not be able to produce any document to show that her father was treated in the hospital.


10. The evidence of P.W.2 Ashim Basak, father of P.W.1 Arundhuti Basak (the wife) reveals that after marriage his daughter was happy for some time but subsequently she was subjected to torture on more dowry and even she was assaulted. His evidence reveals that concerning demand of dowry and alleged torture on his daughter both physically and mentally no general diary or FIR was lodged at police station nor any complaint case was filed in any Court. On 17.4.05 he was informed by his daughter over telephone about grave situation in her matrimonial home and he came to her matrimonial home on 18.4.05. He stated that he was assaulted by O.P. and Ms parents and he informed the matter at Belghoria PS. He stated that his son-in-law is a computer mechanic. Finally he stated that he is not willing to send his daughter to her husband's house.


11. The husband Partha Pratim Basak as OPW 1 in his evidence denied all the allegations made by the wife and stated that his monthly income is not Rs. 15,000/- per month but his monthly income varies from Rs. 2,000/- to Rs. 2,500/- per month. He is not a computer engineer but he works as a mechanic of repairing computers. It is true that in cross-examination he admitted that he possess a mobile phone, land phone and visiting card. The address mentioned in the visiting card is his residential address. He stated that in order to prove his income he did not file any document in Court and would not be able to produce cash memo or any return. He stated that he, his elder brother went to his father-in-law's house to take his wife back but she did not come back. Another witness was examined as OPW 2 namely, Diptesh Kumar Basak who supported the evidence of OPW.1.


12. On a careful consideration of evidence of both parties it is clear that the wife is not at all willing to go to her husband's house. From evidence it is clear that without any just cause the O.P. wife is residing in her parents house. The story of physical and mental torture on her is not at all believable and it is clear that during her tenure of stay in matrimonial home for four years she visited Puri with her husband thrice, and that was, once before the birth of their child and twice after the birth of the child. If there was any demand of dowry and torture on her demanding dowry during her stay of four years in matrimonial home she would have definitely lodged complaint/FIR either in Court or at police station. Though in the application under Section 125 of the Cr. PC she alleged that she was not allowed to mix with any other or to go outside the matrimonial home, it is clear from her evidence that on 17.4.05 she talked with her father over telephone from one S.T.D. booth and for that reason on the next day i.e. on 18.4.05 her father came to matrimonial home and thereafter she went away to her father's house. It proves that there was no restriction on her to come out of matrimonial home and she had also the liberty to talk with her father over telephone. Both PW. 1 and PW. 2 stated about serious and grave situation on 17.4.05 but, the father did not come to her matrimonial home on 17.4.05 and he came to his daughter's matrimonial home only on 18.4.05. It clearly establishes that on 17.4.05 there was no such serious or grave situation in the matrimonial home of O.P./wife, and has there been any such grave situation her father would have refused to her matrimonial home on 17.4.05 during night after receiving the telephone. The evidence of the husband that his wife went away taking her ornaments and money also establishes that she was not driven out of matrimonial home in single cloth.


13. On consideration of the evidence and the circumstances I am of opinion that it is the wife who left the matrimonial home on her own and is staying in her father's house without any just cause. Section 125(4) of the Cr. PC clearly lays down that no wife shall be entitled to receive an allowance for the maintenance from her husband if she without any sufficient reason refuses to live with her husband. The evidence and the circumstances clearly prove that the wife is living in her father's house without any sufficient cause. It is also clear that the husband made several attempts to take back her but, she did not come back to matrimonial home and in open Court she clearly stated that she would never go to her husband's house. Considering the entire situation, circumstances and evidence, I am constrained to observe that there was no negligence on the part of the husband to maintain her. It is the wife who is not at all interested to come back to her husband's house. In this case in view of the provisions of Section 125(4) of the Cr. PC, the O.P. wife is not entitled to claim any maintenance for herself. In this connection, the decisions cited by Mr. Chatterjee namely, Gita Das @ Sangita Das v. Tapas Das (supra) and Kumar Sankar Chakraborty v. Juthika Chakraborty (supra) are apposite. The learned Magistrate failed to appreciate the evidence and circumstances and erred in law in awarding maintenance in favour of the O.P. wife.


14. Though there was no neglect on the part of the husband in respect of his duty to the wife, the petitioner is bound to pay maintenance to the minor son. It is clear from evidence that the husband petitioner did not send any money or maintenance in favour of the minor son including the wife. It has been held that the wife is not entitled to claim any maintenance as she is residing in her father's house without any just cause. Being a father, the petitioner cannot deny his duty, responsibility and obligation to look after Ms minor son, and here he was negligent in maintaining his son as he did not pay any money or maintenance to his minor son. In evidence he admitted that he is unable to produce any paper to show that he is paying fees of school for the son or other educational costs. Accordingly, the petitioner-husband is bound to pay the maintenance in favour of his son and I am of opinion that the order of maintenance granted by the learned Magistrate for the minor son was correct and proper and the said order requires no interference. The order of the learned Magistrate granting maintenance @ Rs. 700/- per month in favour of the minor son requires modification as said amount was insufficient for a school going son. Considering the market price of essential commodities I direct that the petitioner shall pay maintenance at the rate of Rs. 1,000/- per month to his minor son with effect from date of the application under Section 125 of the Cr. PC and payment of maintenance of each month shall be made within 10th of the next month according to English calender. Arrear to be paid in ten monthly instalments along with current monthly maintenance amount. Payment of maintenance, if any, in terms of direction of this Court dated 12.6.06 shall stand adjusted against the amount of maintenance granted in favour of minor son of petitioner including arrears.


15. The revisional application is accordingly allowed in part. The order of the learned ACJM dated 10.4.06 granting maintenance in favour of the O.P. wife is set aside and the next part of the order granting maintenance in favour of the minor son of the O.P. wife is modified to the manner and extent as indicated above.

16. All interim orders passed earlier stand vacated. Criminal Section is directed to forward a copy of this order to the learned ACJM, Barrackpore for information and necessary action.

No maintenance to wife, if wife fails to prove negligence and stays away from husband

                                    IN THE HIGH COURT OF RAJASTHAN
                                                           
                                                       22 January, 1999
Bheekha Ram

Vs

Goma Devi And Ors.

Bench: G Gupta
ORDER
G.L. Gupta, J.

1. This revision by the husband has been preferred against the revisional order D/-17-3-97 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner whereby he set aside the order DA 22-4-95 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondents Nos. 1 to 3.



2. The short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under Section 125, Cr.P.C. against her husband-Bheeka Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheeka Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated that Bheekha Ram earned Rs. 60/- per day by doing Mason work. It was prayed that she be allowed maintenance @ Rs. 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a. piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.



3. Goma Devi entered into the witness box and examined A. W. 1 Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined N. A. W. 2 Kaluram, N. A. W. 3 Modaram and N. A. W. 4 Sampatram. After hearing the counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegations of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against that order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.



4. Mr. S. D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bano v. Sher Mohammad 1990 RCC 57, Bhanwari Bai v. Mohd. Ishaq 1984 MLR 234, Budharam Kosta v. Pitarbai 1984 MLR 62 and Raghbir Singh v. Krishna 1982 MLR 307.


5. On the other hand, Mr. G. K. Vyas urged that this Court should not interfere in there visional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.


6. I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reappreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a revisional Court is not as that of appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revision power, the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bound of its jurisdiction including the question whether the Court had failed to exercise the jurisdiction vested in it : vide Associated Cement v. Keshvanand AIR 1998 SC 596.


7. In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that: on her own admission she was living in the house constructed by her husband. On the admissions of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Dist. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under Section 125, Cr.P.C. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife.


8. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to stay with him but she refused to accept the notice.

9. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her. Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is no fault of the children when they are living with their mother. The father is bound to provide maintenance to them.

10. Consequently, this revision is partly allowed. The order of the Addl. Sessions Judge granting maintenance to Goma Devi is set aside. The order granting maintenance to the children is upheld.

No maintenance to wife, if wife fails to prove negligence
No maintenance to wife, if wife stays away from husband without any cause

No maintenance to wife, who is earning & filed U/s 24 HMA

                     
                 
                                            IN THE HIGH COURT OF DELHI  
                                                      CM(M) No.276/2007                                                           
                                                               22.02.2007


Present: Mr. Subhash Wason, Adv. for the petitioner.


1. Impugned order dated 29.1.2007 has dismissed the application filed by the wife under Section 24 of the Hindu Marriage Act.


2. Reason for denial of any interim maintenance to the wife is that her gross monthly salary is Rs.15,304/-. As against the statutory rules where under general provident fund, deduction has to be 10% of the basic salary, the wife is voluntary contributing Rs.6,500/- per month under the General Provident Fund Scheme.


3. Learned Judge has opined that the wife has enough means to sustain herself at the level of living to which she was accustomed to in her matrimonial house.


4. It is urged before me that the income of the husband is nearly 3 times than that of the wife.


5. Law does not require to average out the income of the spouses and share the two in equal proportion. Law requires that the wife should be paid adequate interim maintenance. The test of adequacy is to give such money to the wife which would enable her to maintain a standard of living to which she was accustomed to in the matrimonial house.


6. I note that no issues are born to the parties.

7. I find no merit in the petition.

8. Dismissed.
February 22, 2007 PRADEEP NANDRAJOG, J.

No maintenance and expenses to wife, if she is living in adultery, or if, without any sufficient reason to live with husband

                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.2.2008

CORAM

THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR

Crl.R.C.No.1491 OF 2005

Marimuthu ... Petitioner

Vs.

Janaki ... Respondent

Criminal Revision Case is filed against the order passed in M.C.No.4 of 2003 dated 2.9.2005 on the file of Judicial Magistrate No.2 of Ponneri.
For petitioner : Mr.C.R.Dhasarathan
For respondent : Mr.S.Parthasarthy

ORDER
This revision is directed against the order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 made in M.C.No.4 of 2003 directing the revision petitioner herein (husband) to pay maintenance to the respondent (wife) at the rate of Rs.500/- per month from the date of petition.


2. The respondent herein contending that her husband, namely the revision petitioner, neglected and failed to maintain her whereas she was not having sufficient means to maintain herself, filed the above said maintenance case praying for an order directing the revision petitioner to pay her maintenance at rate of Rs.1,500/- per month.


3. The said petition was resisted by the revision petitioner herein on the ground that respondent (wife) had withdrawn from company of her husband without any justification and that subsequently there was a settlement between the parties, pursuant to which both of them mutually agreed to live separately. In order to support the defense case of the revision petitioner, he has relied on a document marked as Exhibit R.1 dated 21.10.2002.

4. The learned Judicial Magistrate No.2, Ponneri after considering the evidence both oral and documentary adduced on either side, came to the conclusion that the respondent herein (wife) was entitled to get maintenance from her husband (the revision petitioner herein), fixed the quantum of maintenance of Rs.500/- per month and passed an order directing the revision petitioner to pay such maintenance from the date of the petition filed under Section 125 Cr.P.C. before the said Magistrate.

5. Questioning the correctness and legality of the said order passed by the learned Judicial Magistrate No.2,
Ponneri the present revision has been filed.


6. The learned counsel for the revision petitioner, drawing the attention of the Court to Sub Clause 4 of Section 125 Cr.P.C., contended that a wife who is living away from her husband by mutual consent between the husband and wife, would not be entitled to an order of maintenance under Section 125 Cr.P.C; that even if an order of maintenance happened to be passed under Section 125 Cr.P.C. earlier in point of time and subsequently they continued to live separately by mutual consent, Sub Section 5 provided for cancellation of such an order of maintenance and that hence, the order of the Judicial Magistrate passed in utter disregard of the said provisions and Exhibit R.1 should be held discrepant, unsustainable in law and liable to be set aside in exercise of the revisional powers of this Court.


7. On the other hand, the learned counsel for the respondent contended that the mutual consent for separate living, as found in Sub clauses 4 and 5 of Section 125 Cr.P.C., to be effective and acted upon by the Court dealing with the petition under Section 125 Cr.P.C. should have been incorporated in a decree or order of a competent Court and otherwise the same would be ineffective.


8. The short point that arises for consideration in this revision is: "whether a mutual consent between the husband and wife evidenced by a document should have been incorporated in a decree or order of a competent Court to be recognized and acted by a Court dealing with a maintenance case under Section 125 Cr.P.C.?


9. For the sake of convenience, sub Sections 4 and 5 of 125 Cr.P.C. are reproduced as hereunder:-

           "(4) No wife shall be entitled to receive an 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."

10. A bare reading of the said sub Sections will make it clear that the said provisions did not require the incorporation of the mutual consent arrived between the parties for living separately in any decree or order of a competent Court to constitute a valid defense in a petition under Section 125 Cr.P.C. claiming maintenance. Therefore, this Court is not in a position to countenance the above said argument advanced by the learned counsel for the respondent (wife). As rightly pointed out by the learned counsel for the revision petitioner, the genuineness of Exhibit R.1 has not been disputed by the respondent. Of course, the said document which contains recitals to the effect that each of the parties to the said document was free to contract marriage with the person of his/her choice, the same cannot be construed to be a valid document bringing about the dissolution of marriage. However, clear recitals have been found in the said document evidencing mutual consent between the revision petitioner and the respondent to live separately. The relevant part of Exhibit R.1 is extracted hereunder:-

11. The said document was dated 21.10.2002. It clearly spells out the mutual consent of the parties to live separately. The learned Judicial Magistrate, without properly appreciating the said document and without applying the principle of law found in Sub-Section 4 of Section 125 Cr.P.C., has erroneously held that the respondent (wife) was entitled to maintenance. The said order passed by the learned Judicial Magistrate, which is against the spirit of the statute and passed in ignorance of the said statutory provision, is definitely infirm and discrepant. The non- application of the said statutory provision to the case on hand by the learned Judicial Magistrate will make his order unsustainable. This Court is satisfied that the said order has got to be set aside in exercise of revisional powers of this Court.


12. In the result, the revision case succeeds and accordingly the same is allowed. The order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 passed in M.C.No.4 of 2003 is hereby set aside. M.C.No.4 of 2003 shall stand dismissed. Consequently, connected M.P.No.8952 of 2005 is closed. No costs.

lan

To

The Judicial Magistrate No.2,
Ponneri.





No maintenance to wife if, wife lives without any sufficient reason to live with husband.

No maintenance to wife if, she is living in adultery.

No maintenance to wife if, they are living separately by mutual consent.