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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.  

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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\027  (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:  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 .\027For the purposes of this Chapter,\027  (a) ’minor’ means a person who, under the  provisions of the Indian Majority Act, 1875 (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

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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

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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.