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Discussion > Family Law > Maintenance > No maintenance to EARNING wife -SC   Unanswered Threads Post New Topic

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Avnish Kaur


Consultant
[ Scorecard : 3080]
Posted On 30 January 2011 at 23:18 Report Abuse

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1789-1790 OF 2009

(Arising out of SLP(C) NOS. 24589-24590 of 2007) Anu Kaul ........ Appellant Versus

Rajeev Kaul ........Respondent ORDER

Leave granted.

2) In the appeal filed by the respondent-husband before the High Court of Punjab and Haryana, being aggrieved by the judgment and decree passed by Addl. District Judge (Ad-hoc), Fast Track Court No.3, Faridabad, dated 04.06.2005, the appellant herein had filed an application under Section 24 of Hindu Marriage Act, 1955, for the grant of interim maintenance of Rs. 10,000/- (Rupees Ten Thousand only) and the litigation expense of Rs. 22,000/- (Rupees Twenty Two Thousand only). The application is partly allowed by the Court by its 1

order dated 23.08.2006, by granting an amount of Rs.10,000/- towards litigation expense and a sum of Rs.2,000/- for the maintenance of the minor child living with her. The Review Petition is also dismissed by the Court vide its order dated 21.03.2007, leaving it open to the appellant/applicant to claim interim maintenance before an appropriate forum in the capacity as a Guardian of the child.

3) Challenging both the orders, the appellant-wife is before us in these appeals.

4) Though notice of special leave petition is served on the respondent- husband, for the reason best known to him, has not entered appearance either in person or through his counsel. 5) Marriage between the parties and birth of the female child Karmistha Kaul is not in dispute. The assertion of the appellant in the application filed under Section 24 of Hindu Marriage Act, 1955 that the respondent is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement.

2

6) In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties. She has also stated, that, Kumari Karmisatha Kaul is now grown up and she is studying in Senior School and due to insufficient funds, her education is being hampered.

7) A sermon on moral responsibility and ethics, in our opinion for disposing of this appeal may not be necessary, since the respondent has not disputed the assertion of the appellant. However, since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the interim maintenance awarded to her by the High Court during the pendency of the appeal filed by the husband. However, taking into consideration the child being the daughter of highly placed officer, the exorbitant fee structure in good Schools and the cost of living, we deem it proper to direct the respondent to pay a sum of Rs.5,000/- per month to the applicant commencing from 1st of April, 2009 for the maintenance of the minor child during the pendency of the appeals before the High Court. 8) The appeals are disposed of accordingly. 3

.......................................J. [ TARUN CHATTERJEE ]

.......................................J. [ H.L. DATTU ]

New Delhi,

March 23, 2009.

4



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Ambika


NA
[ Scorecard : 1925]
Posted On 31 January 2011 at 00:29 Report Abuse

 

Judgement given by bench of Supreme court.. Is the above one by Avnish is a judgement by a single judge. If so, the judgement given by bench of SC would have more value than one given by a single judge. Experts please enlighten us!

 

 

 

Judgment on maintenance  

 

Bench: A Pasayat, A Alam

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:

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) 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.

 



Ambika


NA
[ Scorecard : 1925]
Posted On 31 January 2011 at 00:49 Report Abuse

I found this post very educative, so I am pasting here in relation to the two judgement posted above. 

 

05 September 2010, 17:55 

Prabhakar

Advocate 

 

[ Scorecard : 5403]


I am thankful to you for asking the question.  For a long time, I have been thinking of placing my opinion on this point, as often I have been seeing on this web-site, several judgments placed by the members for proving their cases / arguments.  Tthey do not prove their case at all or if proved that only within the limited territorial jurisdiction of the High Court, which passed the order, that too, if there is no different  judgement delivered by the division bench of the same High Court.

First of all, in every judgment, there are two parts.  The first part is "ratio decidendi" (rational part - reasoning part) which has got binding in its nature.  On whom it is binding is different issue and I deal it later.  The other part is "obiter dicta"(Passing reference).  This is not binding in nature.  It shows how the particular judge is feeling about the issues, about the state of affairs like that.  For example, if a judge in a judgment says " Delhi has become a rape city.  Here women are not feeling safe any more after 7.00 P.M.", ""In these days, women are misusing Section 498-A",  "In Section 24 of Hindu Marriage Act, women are not revealing their real income.  They are cheating their husbands" and "in these days, no one is telling truth before the courts of law".  All these are personal remarks, passing comments and have no binding nature and on the basis of these comments teh fate of other cases cannot be decided.  But, if in a judgment, a judge says "After alleging several cruel acts perpetrated by wife, if the husband files Restitution of Conjugal Rights application, it is deemed those cruel acts are condoned".  It is placing a legal principle in the judgment and it is binding.  If in a judgment that the court rules - "A hindu man and Muslim woman' marriage  cannot be treated as marriage under Hindu Marriage Act, even though the customs and rites are followed,  till the muslim woman converts into hindu religion as per established customs", it is ratio and binding.

Now Whose judgments are binding on whom?

The Supreme Court's Constitutional bench having 13 judges, 11 judges, 9 judges, 7 judges, 5 judges (in most cases 5 judges would sit) judgments are binding through out India, except J& K.  The three judges bench decisions are binding on two judges of Supreme court and all other courts in India except J& K.  The two judges bench decisions are binding on other two judges benches and other courts in India except J&K.  Now if there is any conflict of decisions between the two judges benches on the same issue, the matter has to be referred to three judges bench.  With due respect, I say that we see some deviation in this principle in the cases pertaining to ""irretrivable breakdown of marriage"  cases and S. 376 cases, dealt by S.C. 

Now same formula applies in the case of High Court.  High Court's decisions are binding only within its territorial jurisdiction.  The Delhi High Court Judgements are valid only in Delhi.  They have persuasive values and not binding nature on other courts.  Here aso, full bench decisions, three judge bench decisions, two judge bench decisions and finally single judge bench decisions will be binding in that seratum. If a single judge is deviating another single judge's ratio, it is prudent upon him to refer the matter to the chief justice asking him to get the matter decided by two judges.  Otherwise judicial indiscipline increase and anarchy will spread in the judicial system.  I reiterate that one high court's even full bench decisions are not binding upon the single judge of the other High Court.  In the case of district courts (Sessions courts), civil judge (magistrate court), they are bound by the decisions of Supreme Court first and next its own High Court.  If a division bench of H.C. decision and Single bench of H.C. decision is put before the district judge on the same point, whatever he may think, he is bound to follow the division bench judgement.

Now before the District judge, two judgements of its high Court (single judge) are placed, which gave ratio on the same issue but with contradictory result.  Now the D.J. has to decide first whether both the judgments have dealt with the same issue.  Then he has to come to his own opinion whether they are really contradictory in nature.  Finally if so, he has to go through the entire judgements.  If one judgement dealt by referring all the previous binding judgements on the same issue and other judgement is not referring any precedents, the prudent judge follows the first judgment.

Now, you see, in the courts at higher level, some judges will not  refer the judgements given by the parties and in some cases, they even not mention the judgements, which are referred by the parties.  If they mention those judgments, they have to give logical reasoning that why they are not following the ratio laid down in such precedents.  It is more difficult for a single judge if he wants to deviate the division bench judgment.  But what common man thinks is that the judgement passed by a single judge is binding from Kashmir to Kanyakumari.  Some people knowing all these facts, only to mislead the people, give more propaganda to such judgements which have no binding nature beyond its territory and already there exist contra judgement delivered by the division bench.

Now, on the basis of above descriptttion, you may contest the case law filed by the opposite counsel. 


Message thanked : 4 times



Avnish Kaur


Consultant
[ Scorecard : 3080]
Posted On 31 January 2011 at 00:59 Report Abuse

THE FACTS OF TWO CASES ARE DIFFERENT, first judgement says if wife earning no maintenannce, second says if she gets some money from sale of agricultural land then it will not be considered income.

In 2011 accepted fact is No maintenance to an able bodied Earning female.



Total thanks : 1 times


Meenal Bahadur


Self Employed
[ Scorecard : 1649]
Posted On 31 January 2011 at 01:05 Report Abuse

Working woman SHOULD be maintained,if she has been wronged,deserted and therefore forced to earn a living.So her husband must be made to pay,so that he realises that wife is not for free,who can be dumped at will,in order to make place for a new wife..

However if the woman has deserted the spouse in selfishness,in cruelty or over an affiar,she should not be allowed maintenance at all,whether she's wroking or not.

Then only we can dream of discipline in Indian society.Else all will believe themselves to be some kings and queens,while others are their slaves and doormats.



Total thanks : 1 times


Member (Account Deleted)


working
[ Scorecard : 220]
Posted On 31 January 2011 at 02:02 Report Abuse

@ Meenal Bahadur- Very very true, i absolutely agree with you.

If a woman starts working then its not necessary that its her choice and she is living a comfortable life, it might be her necessity, females are not comodities that you can enjoy , have fun and the dump them for free.

Men should be punished and should be forced to pay maintenance who ruins their wife lives, and throw them out of their house, or make their life hell.



Ambika


NA
[ Scorecard : 1925]
Posted On 31 January 2011 at 08:20 Report Abuse

@Avivish

Madam, the particuar judgement is though regarding agricultural land, yet there are observations by the judges which would be applicable to all cases. We have to wait and see for other judgement to come before jumping to conclusion that it is now Lakshman Rekha that no maintenance to earning , able bodies women. Maintenance is decided by case to case basis, it is a well accepted norm and not by a single judgement. 



Ambika


NA
[ Scorecard : 1925]
Posted On 31 January 2011 at 08:25 Report Abuse

and mostly women earn much less than men due to several socio-cultural reasons and her homebound responsibilities. Hence divorce can be used as an instrument to settle scores and make wife poorer.This judgment ignores the equity aspect and may be overruled by another one. There is nothing like in 2011 it is a set rule. Experts please throw light on it.


Total thanks : 1 times


Bhaskar for SOCIAL JUSTICE


Legal & Social Activist
[ Scorecard : 1608]
Posted On 31 January 2011 at 09:50 Report Abuse

!00% agreed with the views of Ms.Meenal Bahadur.

Not Agreed with the views Ms.Ambika



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Mallik Karra


Done with AIBE
[ Scorecard : 371]
Posted On 31 January 2011 at 18:09 Report Abuse

Working women should be maintained if she is wronged, deserted - agreed

However if the woman has deserted the spouse in selfishness,in cruelty or over an affiar,she should not be allowed maintenance at all - fine till here then should we stop here... shouldnt the woman be punished the same way as suggested for erring men above.......

 

ambika ji,

observations by judges  (Obiter dicta) in written form by a judge that may form part of an opinion or judgment but are not in and of themselves legally significant;




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