http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: MAJOR ASHOK KUMAR SINGH

       Vs.

RESPONDENT: VITH ADDL. SESSIONS JUDGE,VARANASI AND OTHER

DATE OF JUDGMENT06/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  333            1996 SCC  (1) 554  JT 1995 (7)   151        1995 SCALE  (5)422

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises from the order of the Single  Judge dated  December 17, 1990 of the High Court of Allahabad  made in  Civil Misc.  W.P. No.706  of 199. The undisputed facts  are that the appellant and Mrs. Geeta, the respondent, are  legally married  couple. Their marriage was solemnized on  November 22,  1981. The  respondent laid  the proceedings under  Section  125  of  the  Code  of  Criminal Procedure, 1973  [for short,‘the Code’] on July 14, 1987 for maintenance on the ground that the appellant is impotent and he  neglected   her  and   that,  therefore,   she   claimed maintenance for  separate residence  from the appellant. The learned magistrate  awarded a  sum  of  Rs.500/-  per  month w.e.f. the  date of  filing of the petition. On revision the Sessions Judge  confirmed the same. The High Court dismissed the writ  filed under  Article 226  of the  Constitution  of India by  the impugned  order. Thus,  this appeal by special leave.      The only  question  raised  by  Shri  S.C.  Birla,  the learned counsel for the appellant, is that the appellant had not neglected  to maintain  Mrs. Geeta.  The very foundation for claiming maintenance under s.125 of the Code is that the appellant had  neglected to maintain the respondent and that the respondent  was not having sufficient means for her self maintenance. We  are unable  to agree  with  the  appellant. Section 125(1) of the Code envisages that:      "(1) If  any  person  having  sufficient      means neglects or refuses to maintain-      (a)  his   wife,  unable   to   maintain      herself, or      (b) xxxxxxxxxxxxxxxx      (c) xxxxxxxxxxxxxxxx      (d) xxxxxxxxxxxxxxxx      a Magistrate  of the  first  class  may,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

    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."      The courts below found as a fact that the appellant was impotent  and   he  was   not  capable   of  giving   sexual satisfaction to  the respondent,  in consequence, it amounts to cruelty  and that,  therefore, the respondent is entitled to live  separately from the appellant. Since she was unable to maintain  herself, she  is entitled  to seek  maintenance from the  appellant. We find that the view taken by the High Court is  well justified.  The controversy  is no longer res integra.      In  Sirajmohmedkhan   Janmohanadkhan  vs.   Hafizunnisa Yasinkhan and  Anr. [(1982 1 SCR 695], this Court considered the questing  arising in the proceedings under s.125 itself. This court held that:      "If this  is so,  can it  be said by any      stretch of imagination that where a wife      refuses to  live with her husband, if he      is impotent  and unable to discharge his      marital obligation,  this would not be a      just ground  for refusing  to live  with      her husband when it seems to us that the      ground of  impotence which had been held      by a  number of  authorities  under  the      civil law  to be  a good ground not only      for restitution  of conjugal  rights but      also for  divorce. Indeed, if this could      be a ground for divorce or for an action      for  restitution   of  conjugal  rights,      could it  be said with any show of force      that it  would not  be a just ground for      the wife  to refuse  to  live  with  her      husband.  The  matter  deserves  serious      attention from  the point of view of the      wife. Here  is a  wife who  is forced or      compelled to  live a  life  of  celibacy      while staying  with her  husband who  is      unable to  have sexual relationship with      her. Such a life is one of the perpetual      torture, which  is not  only mentally or      psychologically injurious  but even from      the   medical    point   of   view,   is      detrimental to  the health of the woman.      Surely, the  concept of  mental  cruelty      cannot be  different in a civil case and      in a  criminal case  when the attributes      of such a cruelty are the same.      xxxx    xxxx   xxx           We hold  that where it is proved to      the satisfaction  of the  court  that  a      husband is  impotent and  is  unable  to      discharge his  marital obligations, this      would amount  to both  legal and  mental      cruelty which  would  undoubtedly  be  a      just  ground   as  contemplated  by  the      aforesaid proviso for the wife’s refusal      to live  with her  husband and  the wife      would be  entitled to  maintenance  from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    her husband according to his means."      Accordingly,  it  was  held  that  the  wife  would  be entitled to  maintenance under  s.125 (1)  of the  Code. The woman would  go to  the marital  home of her husband, with a fond hope  and expectation  that she  would have  not only a happy but  also peaceful  conjugal society with her husband. When she  found that her husband is unable to perform sexual obligation, which  is one of the important factors to cement bondage of  affection and  cordial relationship  in  marital home, it  would be  perpetual agony for the wife to continue to live  in peace  in the conjugal home. Cruelty is a ground for divorce  or judical separation in civil law. Under these circumstances,  she   would  be   well  justified   to  live separately with  the husband  and  at  the  same  time  keep maintaining married status.      It is  seen that  in the  letter addressed  on June 27, 1985 by  the appellant  himself to his father-in-law, he had stated that  "the root  cause of  their  problem"  with  the respondent "is  failure of sexual life". He admitted therein that  his   father-in-law  advised   him  to   read  certain literature thereon.  In his  cross-examination  he  admitted that his  wife had  advised him  medical treatment. It would mean that  apart from  other problems that had come in their way, the  main problem  is the failure on his part of sexual life.  It   would  be  seen  that  the  respondent  had  not immediately rushed  to severe her marital relations with the appellant. She  had sufficiently waited for long time to see whether there would be any improvement in the potency of the appellant.  Having   found  no   hope,  she  chose  to  live separately from the appellant. Therefore, it could safely be concluded that  the respondent  having tried  all  means  to sustain the  marital relations  but having found that it was impossible for the appellant to gain potency, she had chosen to live  apart from  the  appellant.  Therefore,  there  was sufficient ground for the wife to live separately.      It  is  next  contended  for  the  appellant  that  the respondent had  sufficient means  and she  can live  herself comfortably  and   is  thus   not  entitled   to  claim  any maintenance from  the appellant.  We find  no force  in  the contention. It is seen that the appellant is an Army officer and is  having sufficient  means to  maintain his  wife. The amount of  Rs.500/- per  month being  the  maximum  provided under the  Code, the  learned Magistrate  is well justified, under the  circumstances, to  award this  meagre sum  to the respondent towards her maintenance.      The appeal is accordingly dismissed.