stanley (Freedom) 09 October 2012

The fact that your family has got bail and you would be getting it shortly hence now give her a tough time contest the case . File for Divorce . If your wife is working than she would not get maintanence and for the child in case she is working she would have to contribute for maintanence of the child .Now that you have posted in LCI a few lawyers would contact you . But better to go by references from friend's and have chamber consultations . A few Lawyers give tall and big talks hence beware . A 498a case would go on more a less for 5-7 yrs hence do not give in for compromise .There would be demands for out of court settlements please do not heeed those demands .

For visitation you would have to file an application under gaurdians and wards act . Initally refusal would come from your wife side like threat to life of child ,father is drunkard , etc etc . But ultimately nobody can stop you from visitation as your are the biological father and as your child is small it may be granted under supervision .So stay cool and relax . Meanwhile visit temple and pray and faith in god as you would soon come out from it .

Slappedby498 (Analyst) 09 October 2012

Hi stanley,

thanks for the reply, wife was working before marriage, but as of now she is not working. i want to file the divorce but my lawyer says file it after 2 yrs because after 2 yrs you have the strong reson that there is no contact between husband and wife from 2 yrs and this is the strong ground for divorce. pls help?

thanks

Abhishek

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 09 October 2012

I agree with Stanley, when he says don't go in for a mediation/settlement with somebody who has made your life hell. Trust me since' you've got bail or likely the worst is already over - just stick to your guns. Hire a good advocate, search LCI - Mr.Ajay Sethi in Mumbai is a learned advocate, get in touch with him.

Good Luck !

Bharat Chugh

Advocate Supreme Court of India

Slappedby498 (Analyst) 09 October 2012

Thanks for the reply, wife was working before marriage, but as of now she is not working. i want to file the divorce but my lawyer says file it after 2 yrs because after 2 yrs you have the strong reson that there is no contact between husband and wife from 2 yrs and this is the strong ground for divorce. pls help?

thanks

Abhishek

stanley (Freedom) 09 October 2012

Its is not necessary for you to wait for two years you can very well read a lot of old posts in the divorce section the below post is of Mr Tajobs where he has explained that it is not necessary to wait for X years or under the same roof divorce can be granted as below . Read a few old posts of Mr Bharat Chugh regarding 498 A and you will gain knowledge .

As regards to maintanence to your wife you can always oppose on the grounds that she was working is qualified and is capable of working so be happy and dont worry .

You can very well seek divorce based on ‘grounds’ of 'mental cruelties' by filing a suit for dissolution of marriage while living under 'same roof'. It is not necessary that spouses needs to move out from each physically to avail grounds under S. 13 HMA.

Now based on facts before us these are what you need to prove under'mental cruelties' grounds and they are not that tough to prove.

- Not looking after / serving guests at matrimonial home.
- Not looking after / serving relatives at matrimonial home.
- Not looking after needs of husband as wife's duty.
- Not cohabiting as husband and wife regularly (a marriage without s*x is anathema).
- Without consent of husband leaving home. (reflects deligency on part of husband not to know where wife leaves without consent of her hsuabnd every fortnight for 15 days if questioned by society that a couple keeps which is mental cruelty ground)

Witnesses are your friend(s) and relatives / family members for first two pointer and for last three pointers your cross examination under oath are sufficient. Also now a days tech. can be used nd as illustration I suggest to ring her on her mobile on first day of leaving to natal home and after a week again ring her and lastly ring her on 15th. day by this exercise you are creating 'mobile tower location mapping' which comes handy for proving alleged every 15 days leaving for matrimonial home without consent of a husband mental cruelties allegations facts as in a civil suit matter and so on so forth probable evidence creation could be done with.

Reason I suggested "mental cruelties' ground to opt is that there are no. of couples cases decided all the way by SC read with various State’s HC’s where couple living under same roof have parted each others company by proving mental cruelties that was caused by one spouse upon another while living under same roof. Here you can very well hire a family law knowing advocate and file petition for divorce U/s 13 (1) (ia) HMA and request Court for allowing “dasti summon” and court notice can be served upon your wife while she is living in same roof with you. Now it is upto her how she is going to react post accepting Divorce Notice but that is not your issue at present as in your brief you asked us que. about how to seek'divorce' while wife lives under same roof with you, is it not so!

Raja (XYZ) 09 October 2012

for an advocate to assist you in mumbai, you can call me. i will try my level best. good luck

Slappedby498 (Analyst) 09 October 2012

Hi My Raja,

Please let me know your email id so that i can send the details of my case and we can disscuss it further.

thanks

Abhishek

Bhawani Mahapatra (Law Officer) 09 October 2012

Well advised by the experts.

Nitish Banka (lawyer) 09 October 2012

Land Mark SC Judgement on Interim Maintenance/maintenance

Supreme Court Cases 316-2008 Chaturbhuj Vs. Sitabai, Dismissing the appeal, the Court
Dismissing the appeal, the Court HELD: 1.1. 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” 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. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. 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. [Para 5] [586-B, C,D, E] Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2 Supreme 503, relied on. 1.2. 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. 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. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. 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 s.125 Cr.P.C.
The test is whether the wife is in a position to maintain herself in the way she was used to at the place of her husband.[Paras 6, 7 and 8] [583-F, G; 584-A, B, C] Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated. 2. The trial Court, the Revisional Court and the High Court 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. [Para 9] [584-D, E] Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant. Shashi Bhushan Kumar for the Respondent. Code of Criminal Procedure, 1973: s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136. s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,1950-Articles 15(3) and 39-Social justice. Words and phrases: “unable to maintain herself“-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973. The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself. The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent. Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant’s monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself. Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal. 2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1)JT78 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. Posted 29th July by Nitish Banka

Whether 2nd FIR maintainable

While on one hand the manner of recording of First Information Report (FIR) and the commission of offences revealing from FIR are take with caution and circumspection, the Supreme Court in a recent decision (Babubhai v. State of Gujarat) has approved the recording of more than one FIR in respect of same acts committed on the ground that the police is required to register the FIR on the basis of the information provided and that "where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible".

Making a reference to the earlier decisions of the Court on the issue, the Bench declared the position of law in the following terms;

12. In Ram Lal Narang Vs. Om Prakash Narang & Anr. SEP 26

Order 9 rule 8,9 CPC

8. Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. SEP 22

Supreme Court: Can't sue lawyers for wrong advice

NEW DELHI: At a time when it is the norm to seek legal opinion prior to taking a decision, theSupreme Court has come to the rescue of lawyers by ruling that they cannot be prosecuted for rendering wrong advice if there is no link between them and perpetrators of a fraud or offence. SEP 8

A Brief about Summons

A Brief about Summons

A Summon is a legal document/notice issued by the court which notifies the party in dispute to appear before the court on a date mentioned in the summon itself.

Section 62 CRPC shows hoe these summons can be served.

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant. SEP 3

CRPC Ammendment on 498a

The CrPC amendments are the codification of the Indian Supreme Court’s orders on arrest and the procedures to follow upon arrests. I see the end of the 498A extortion industry.

Impact of Amendments:

(a) This amendment stops the police from making arbitrary arrests. The very fact that reasons shall have to be recorded in writing fixes responsibility and makes the Police Officer accountable for justifying the arrest. SEP 1

kasab death sentence democratic

Everybody in India feels that the Kasab Judgement came too late after 4 yrs its too late.After spending 50 crores on his trial it is wrong and Indian government is not concerned about his death.Well the real truth is different from what people presuming. AUG 27

Hindu Property types

This article explains and answers the following questions:-

i) What is a Joint Hindu Family/Hindu Undivided Family as per the law ?

ii) The Joint Hindu Family Property ? who all have a right ?

iii) What is a Coparcenary ? and who all are Coparceners ?

iv) What do we mean by daughters being coparceners as well ?

v) The rights and obligations of coparceners ? Can a coparcenor sell/gift his interest in ancestral properties ?

vi) Who can seek a partition ?

vii) What is the difference between AUG 19

Law of limitation

Law of limitation

In order to prevent any suit running till perpetuity law of limitation is necessary.

Every civil suit has a limitation period that is the maximum time allowed to file a civil suit after the date of cause of action.

cause of action

The cause of action is the date from which a civil/criminal offence came into force.The cause of action is important to calculate the limitation period.In order to find that a civil suit is filed within the stipulated time. AUG 11

How to Get Internship in India in 3 Easy steps...

If you are looking for an internship and don't know how to get one---Here is the step by step guide which would help you to find legal internship.Now no need to go anywhere for internship search when you can find one at your home

Step1--Use Internet as a research tool

Now days internet has reached every corner and is used by everybody.So every firm has a website either they have career section or an email id to contact---What you have to do is collect them.Sort out which firm can offer you the AUG 5

Concept of Estoppel

1.0 INTRODUCTION

All of us know what estoppel is. I first heard about it when I was reading section 28 of the Partnership Act, 1932 which provides that a person holding out to an outsider providing credit to the firm is estopped from pleading that he is not a partner when circumstances indicated that he so represented himself. There are varieties of other estoppels like those found in Contact law, law of sale of goods and law of evidences. This article seeks to discuss estoppel in contract law. AUG 3

The game of Adjournments

The Olympics are here once again. It is that time of the year when people around you start talking about sports no one has ever heard of and will never mention again for another four years.

For two whole weeks people will pore keenly over the progression of world records in discus throwing, the fitness of horses in the equestrian events andhow the Koreans are essentially unbeatable in women’s archery. Then we can all go back to obsessing over cricket. JUL 29

Land Mark SC Judgement on Interim Maintenance/maintenance

Supreme Court Cases 316-2008

Chaturbhuj Vs. Sitabai,

Dismissing the appeal, the Court

Dismissing the appeal, the Court

HELD: 1.1. 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. JUL 29

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Contact....

Ask any query at www.lawyersclubindia.com and please visit my profile there, https://www.lawyersclubindia.com/profile.asp?member_id=161863

Add me on Facebook

https://www.facebook.com/nitish.banka1 JUL 22

10 Reasons Why you should have elementary knowledge of Indian Laws?

1.As it is true that Ignorance of law is not an excuse,so if you get caught doing an act like smoking in public and you don't know that it is as per law is a punitive act.Then you cannot plead that you don't know that it is an offence whereas if you would have known that this act is an offence then you would have thought of avoided doing the same.

2. It makes you feel empowered.

3. You could be able to contribute to the society. JUL 21

Who is a mad person as per Indian Law?

Section 84 deals with Acts done by unsound mind.

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

According to section 84 acts done by an unsound person is not an offence. JUL 21

What is an Attempt??

Attempt comes under sec 511 of IPC.

There are 4 stages of crime:

1.Intention.

2.Preparation.

3.Attempt.

4.Commissioning of a crime.

So law does not recognizes any crime in forming an intention and to some extent prepratio,for preparation only preparation like raging war against nation (sec 122) and other criminal acts related to preparation.

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Hi All

Welcome to Laws and People of India.This blog is intended to impart useful resources related to Indian laws. As we know ignorance is bliss, We are Indians and we are the largest democratic republic in the world,but sometimes I feel that we don't know our legal rights or a common man is facing exploitation because of this ignorance.

Nitish Banka (lawyer) 09 October 2012

Supreme Court Cases 316-2008 Chaturbhuj Vs. Sitabai, Dismissing the appeal, the Court

Dismissing the appeal, the Court HELD: 1.1. 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” 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. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. 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. [Para 5] [586-B, C,D, E] Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2 Supreme 503, relied on. 1.2. 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. 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. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. 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 s.125 Cr.P.C.
The test is whether the wife is in a position to maintain herself in the way she was used to at the place of her husband.[Paras 6, 7 and 8] [583-F, G; 584-A, B, C] Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated. 2. The trial Court, the Revisional Court and the High Court 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. [Para 9] [584-D, E] Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant. Shashi Bhushan Kumar for the Respondent. Code of Criminal Procedure, 1973: s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136. s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,1950-Articles 15(3) and 39-Social justice. Words and phrases: “unable to maintain herself“-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973. The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself. The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent. Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant’s monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself. Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal. 2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1)JT78 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.