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PETITIONER: RAJATHI

       Vs.          RESPONDENT:      C. GANESAN

DATE OF JUDGMENT:       22/07/1999

BENCH: S.Saghir Ahmad, D.P.Wadhwa

JUDGMENT:

D.P. WADHWA,J.

       Leave granted.

     This  is wife’s appeal against order dated December 4, 1997  of  the  Madras High Court passed in exercise  of  its jurisdiction  under  Section 482 of the  Criminal  Procedure Code (’Code’ for short).  By This order wife was deprived of maintenance  of  Rs.200/-  per month granted  to  her  under Section 125 of the Code.

     Wife  presented  a petition under Section 125  of  the Code  on  February  3, 1993 claiming from her  husband,  the respondent,  maintenance for herself and her two  daughters. The minor son of the parties is living with the husband.  In the  present  appeal  we  are concerned with  the  grant  of maintenance  to  the  wife.  She alleged  that  her  husband having sufficient means neglected or refused to maintain her and  that  she  was  unable to  maintain  herself.   In  the petition  wife  had  claimed  maintenance  at  the  rate  of Rs.500/- per month.

     Learned  Judicial Magistrate, by order dated April 24, 1995,  granted her maintenance only at the rate of  Rs.200/- per  month.  Husband felt aggrieved and he went in  revision to  the  Court  of Sessions.  The  learned  Sessions  Judge, Salem,  by  order  dated  November  5,  1996  dismissed  the revision  petition  filed by the husband and  confirmed  the order  of  grant of maintenance to the wife at the  rate  of Rs.200/- per month.  Still feeling aggrieved husband filed a petition  under  Section 482 of the Code in the Madras  High Court.  This was allowed by learned single Judge, who by the impugned  order,  set aside the orders both of the  Judicial Magistrate and the Sessions Judge and dismissed the petition of  the wife for maintenance.  Now the wife has come to this Court.

     Proceedings  under  Section  125 of the  Code  are  of summary  nature.  This Section is meant to provide immediate relief  to  the  wife, minor children and parents,  who  are unable  to  maintain themselves.  A maximum of Rs.500/-  per month  can be granted to the wife under this Section.   This will  be  when husband having sufficient means  neglects  or refuses  to  maintain  her,  she being  unable  to  maintain

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herself.  Section 125 we may quote in extenso:-

     "125.   Order  for maintenance of wives, children  and parents.   -  (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:

     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, 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)  Such allowance shall be payable from the date  of the  order,  or,  if  so  ordered,  from  the  date  of  the application for maintenance.

     (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 part  of  each month’s  allowance  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

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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 allowance 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."

     If  we refer to proviso to sub-section (3) of  Section 125  where  a  husband offers to maintain his  wife  on  the condition  of  her living with him and she refuses  to  live with  him  a Magistrate may consider any ground  of  refusal stated to her and nevertheless make an order notwithstanding such  offer,  if the Magistrate is satisfied that  there  is just ground for so doing.  Explanation to the proviso states that  if  a husband has contracted marriage with  any  other woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

     In  the present case wife alleged that her husband had contracted  a second marriage on January 4, 1990.  She filed a  complaint for an offence under Section 494 of the  Indian Penal  Code.  It is stated that the complaint was  dismissed and   husband   was  acquitted.    High  Court   took   this circumstance against the wife and adversely commented on her refusal  to  live  with her husband.  High Court,  it  would appear, lost sight of the fact how it would be difficult for the  wife to prove the second marriage.  This Court has held that  to  prove  the  second marriage as  a  fact  essential ceremonies  constituting  it  must be proved and  if  second marriage  is  not proved to have been validly  performed  by observing  essential ceremonies and customs in the community conviction  under Section 494 IPC ought not to be made.  The fact,  however, remains in the present case that the husband is  living  with another woman.  Proviso to sub-section  (3) would squarely apply and justify refusal of the wife to live with  her husband.  There can be, however, other grounds for the wife to refuse to live with her husband, e.g., if she is subjected  to  cruelty  by  him.  It was a  case  where  the husband  neglected  or refused to maintain his  wife.   High Court  did  not consider the question if husband was  having sufficient means.  It rather unnecessarily put the burden on the  wife to prove that she was unable to maintain  herself. The words "unable to maintain herself" 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 the desertion to survive somehow.   Section 125  is enacted on the premise that it is obligation of  the husband  to  maintain  his wife, children and  parents.   It will,  therefore,  be  for  him  to  show  that  he  has  no sufficient means to discharge his obligation and that he did not  neglect or refuse to maintain them or any one of  them.

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High  Court also observed that the wife did not plead as  to since  when she was living separately.  This is not quite  a relevant  consideration.   Even  though wife was  unable  to prove that husband has remarried, yet the fact remained that the  husband  was  living with another  woman.   That  would entitle  the  wife  to live separately and would  amount  to neglect  or  refusal  by  the   husband  to  maintain   her. Statement of the wife that she is unable to maintain herself would  be  enough and it would be for the husband  to  prove otherwise.

     We may also have a look at the provisions of the Hindu Adoption   and   Maintenance  1956,   which   provides   for maintenance to a Hindu wife.  Under Section 18 of this Act a Hindu wife, whether married before or after the commencement of  this  Act,  shall be entitled to be  maintained  by  her husband  during  her life time.  Under sub-section  (2)  she will  be entitled to live separate from her husband  without forfeiting her claim to maintenance,- (a) if he is guilty of desertion,  that  is  to  say,  of  abandoning  her  without reasonable  cause  and without her consent or agains  t  her wish, or of willfully neglecting her;  (b) if he has treated her  with such cruelty as to cause a reasonable apprehension in  her  mind that it will be harmful or injurious  to  live with  her  husband;  (c) if he is suffering from a  virulent form  of leprosy;  (d) if he has any other wife living;  (e) if  he keeps a concubine in the same house in which his wife is  living or habitually resides with a concubine elsewhere; (f)  if he has ceased to be a Hindu by conversion to another religion;   and  (g) if there is any other cause  justifying her  living separately.  Under sub-section (3) a Hindu  wife is  not entitled to separate residence and maintenance  from her  husband  if  she is unchaste or ceases to be  Hindu  by conversion to another religion.  It will be apposite to keep these  provisions  in  view while considering  the  petition under Section 125 of the Code.

     We  are not going into the question if the High  Court on  examining the case on merit was correct in coming to the conclusion  that the wife was possessed of sufficient  means and was able to maintain herself.  In the present appeal, We are only concerned to see if the High Court was justified in invoking  its inherent powers under Section 482 of the  Code and we do not think the High Court was right.

     In Krishnan & Anr.  vs.  Krishnaveni & Anr.  [(1997) 4 SCC  241]  this Court explained the scope and power  of  the High  Court  under  Section 482 of the Code.   The  question before  the  Court  was  if in view of  the  bar  of  second revision  under  sub-section (3) of Section 397 of the  Code was  prohibited,  inherent power of the High Court is  still available under Section 482 of the Code.  This Court said as under :

     "Ordinarily,  when revision has been barred by Section 397(3)  of the Code, a person - accused/complainant - cannot be  allowed  to  take recourse to the revision to  the  High Court  under Section 397(1) or under inherent powers of  the High Court under Section 482 of the Code since it may amount to  circumvention  of  the provisions of Section  397(3)  or Section  397(2) of the Code.  It is seen that the High Court has  suo  motu  power  under   Section  401  and  continuous supervisory jurisdiction under Section 483 of the Code.  So, when  the High Court on examination of the record finds that there  is  grave  miscarriage  of justice or  abuse  of  the

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process  of  the courts or the required statutory  procedure has not been complied with or there is failure of justice or order  passed or sentence imposed by the Magistrate requires correction,  it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would  ensue.  it is, therefore, to meet the ends of justice or  to  prevent abuse of the process that the High Court  is preserved  with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate  case even revisional power under Section 397(1) read  with  Section 401 of the Code.  As stated earlier,  it may  be  exercised  sparingly  so   as  to  avoid   needless multiplicity  of  procedure, unnecessary delay in trial  and protraction of proceedings.  The object of criminal trial is to  render public justice, to punish the criminal and to see that  the trial is concluded expeditiously before the memory of  the witness fades out.  The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement.  These malpractices need to be curbed and  public  justice  can  be ensured  only  when  trial  is conducted expeditiously."

     In  the present case, the High Court minutely examined the  evidence  and came to the conclusion that the wife  was living  separately without any reasonable cause and that she was  able  to maintain herself.  All this High Court did  in exercise  of its powers under Section 482 of the Code  which powers  are  not  a substitute for a second  revision  under sub-section  (3) of Section 397 of the Code.  The very  fact that  the  inherent powers conferred on the High  Court  are vast  would  mean that these are circumscribed and could  be invoked only on certain set principles.

     It was not necessary for the High Court to examine the whole  evidence  threadbare to exercise  jurisdiction  under Section 482 of the Code.  Rather in a case under Section 125 of the Code trial court is to take a prima facie view of the matter  and it is not necessary for the court to go into the matrimonial disputes between the parties in detail.  Section provides  maintenance  at  the rate of Rs.500/-  per  month. There  is  outcry  that this amount is too  small.   In  the present case, however, we are quite surprised that the court granted  paltry amount of Rs.200/- per month as  maintenance which  was  confirmed in the revision by the Sessions  Court and the High Court thought it fit to interfere under Section 482 of the Code in exercise of its inherent jurisdiction.

     Whatever  may  be  the merit of the case,  High  Court wrongly  exercised its jurisdiction under Section 482 of the Code  in passing the impugned order.  The appeal is  allowed and  the  impugned order dated December 4, 1997 of the  High Court is set aside.