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Cites 4 docs
Section 125 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974
Jagir Kaur & Another vs Jaswant Singh on 13 February, 1963

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Andhra High Court
Daniatram Vyas vs Saraswati Bai And Anr. on 14 July, 1977
Equivalent citations: 1978 CriLJ 806
Author: S Rao
Bench: S Rao



ORDER
 

Sambasiva Rao, J.

1. When some sort of allowance is being paid to the wife by the husband, is she precluded from claiming maintenance Under Section 125 Cr. P. C? Can the husband take shelter under the fact of his paying some amount to the wife to contend that there is no neglect or refusal to maintain within the meaning of Section 125 Cr.PC mainly these are the questions which I will have to answer in this criminal revision case.

2. This case arises out of a petition filed by a wife against her husband for maintenance Under Section 125 Cr. P, C at the rate of Rs. 500 per month which is the maximum prescribed under that provision. The couple had been married long time ago and had two daughters, one died as an infant and the other grew up and later married. From 1952 the wife was living apart from her husband in a separate house. She was being paid Rupees 100 p. m. as allowance. In about 1966 it was raised to Rs. 200 and later in 1969 to Rs. 300 per month. Originally they were living in Vizianagaram. The wife later shifted to Hyderabad. She filed the present petition saying that she had become debilitated in body, required female help and medical treatment and that she needed more money in view of the growing cost of living. The husband opposed this claim saying that since he was paying some amount towards her maintenance there was no neglect or refusal to maintain on his part which would attract Section 125 Cr.PC He alleged that the two spouses were living apart by mutual consent. He maintained that she had no business to live in Hyderabad while he was living in Vizianagaram and that in any case the claim for Rs. 500 per month was totally unwarranted.

3. The learned Third Metropolitan Magistrate observed that in the circumstances of the case it was evident that the husband had developed illegal intimacy with other women prior to 1952 and made the wife live in a separate rented house. He was not even kind enough to personally hand over the amount of Rs. 100 per month to his wife; he was sending the amount only by money order. According to his own showing, as the learned Magistrate has pointed out, he never visited her and saw her even. He did not even know where his wife was living and never bothered to enquire where she lived all these years. He was totally ignorant of the condition of her health. The learned Magistrate, therefore, concluded that "the conduct of the respondent (husband) which has been described above suggests that he made her life unbearable and that she was constrained to leave the house and stay away from him. These circumstances establish that the petitioner is entitled to live separately from him." Further, the learned Magistrate observed that it could not be said that the parties had agreed to live separately. On account of the behaviour and conduct of the husband, the wife was constrained to live away from her husband. In the view of the learned Magistrate, this was neglect of the wife by the husband. In addition to the amount he was paying every month, the husband was also paying the rent of the house in which the wife was living in Vizianagaram so long as she lived there. On a consideration of the circumstances and the state of health and her requirements, the learned Magistrate found that she was in need of more than Rs. 500 per month. It was also found that the husband was making a monthly income of not less than Rs. 5,000 and that there are no other dependants on him. Equally significant is the finding that the wife had not chosen to live in Hyderabad on her free will and volition but has been compelled to stay here to avoid the displeasure of her husband by staying in the same town as he. I do not see any justification to doubt the correctness of these findings. They naturally create a sympathy towards the wife. However, a Court of law cannot base its decision on sympathy alone. Its decisions must be in accordance with law,

4. Sri Vedula Jagannadha Rao, learned counsel for the husband who is the petitioner in this case therefore emphasises on the legal aspect rather than on the factual aspect of the wife's claim. His contention is that the wife is now being paid Rs. 300 per month. Therefore, it cannot be said that the husband has neglected her or refused to maintain her. After all the purpose of Section 125 Cr.PC is to save the wife or other dependants from destitution and vagrancy. When she is being paid Rs. 300 .a month, it is impossible to say that the wife could be reduced to destitution or vagrancy. Therefore, the petition under Section 125 Cr.PC is misconceived. May be, so the learned counsel points out, her requirements are more and the amount is not sufficient to meet her needs. In such an eventuality the proper remedy for the wife would be to file a civil suit for adequate maintenance. learned counsel places reliance on Bhagwan Dutt v. Kamla Devi , Mt. Dhan Kaur v. Niranjan Singh , E. A. Graham v. E. H. Graham AIR 1925 Rang 205 (2); (26 Cri LJ 831), Mt, Boshan Bano v. Azim AIR 1943 Lah 59 : 44 Cri LJ 425 and State v. Manda to support his contention. He also refers to his client's contention that the two spouses have been living apart by mutual consent and so no claim Under Section 125, Cr.PC can be sustained.

5. The second argument of the learn" ed counsel that the parties have been living separately by mutual consent cannot be countenanced in view of the clear finding given by the lower Court. According to the lower court, the wife was not only made to live in a separate rented house but was later made to leave the town where her husband was living and was obliged to live in a different town or city and that was why she came away to Hyderabad. Therefore, the contention based upon the parties living separately by mutual consent has no merits.

6. Now coming to the object of Section 125 Cr. P. C it is undoubtedly to prevent destitution and vagrancy. Sarkaria, J. stated in paragraph 19 of Bhagwan Dutt v. Kamala Devi (1075 Cri LJ 40) (SC) (at p. 43 ol Cri LJ) (supra) thus:

The object of those provisions (Section 488 of the old Cr.PC) being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also is taken into account together with the earnings of the husband and his commitments.

It is impossible to give an inflexible interpretation to the words 'neglects or refuses to maintain. Could it be said that the husband has not been neglecting or refusing to maintain his wife if he had -been paying her a mere pittance, something which was insufficient to maintain herself and which was inconsistent with her needs and at the same time with the income of the husband? The amount that is paid should prevent her from destitution and vagrancy. If a small sum is paid to the wife with which she is unable to meet her needs and requirements, in my opinion, it is certain subjecting her to destitution and vagrancy. If she cannot make both her ends meet with the aid of the amount that is being paid to her by the husband, what else could it be excepting that she is subjected to destitution and/or vagrancy. Nobody can say that though the wife requires a particular amount to meet her basic necessaries, the husband is obliged to pay that amount even though his income does not justify it. The Court, when approached in this behalf, must built a nexus between the reasonable requirements of the wife to maintain herself and the resources of the husband and the needs of his other dependants who have claims on him. I derive support to this view from the above observations of the Supreme Court that the needs and requirements of the wife for moderate living can be fairly determined and her separate income and the earnings of the husband in this connection should be considered as a whole. Therefore, a mere payment of some amount to the wife does not take away the case from the ambit of Section 125 Cr.PC unless the amount paid is sufficient to meet her basic necessaries of life. When the husband can afford to pay more, then it is clearly, in my opinion, 'neglect or refusal to maintain the wife' within the meaning of Section 125 Cr.PC

7. The finding of the lower court show that even for modest living of the respondent before me, she needs Rs. 600 or Rs. 700 a month and that the husband has a monthly income of not less than Rs. 5,000 and he has no other dependants to maintain. If he is paying Rupees 300 a month to the respondent which is not sufficient to meet half her basic needs, no other conclusion is possible excepting that he has been neglecting or refusing to maintain the respondent. It may be noted that while she was living in Vizianagaram, the petitioner was paying the house rent in addition to the monthly payment of Rs. 300. Even that has been denied to the respondent after she came over to Hyderabad which she did, according to the lower Court, on account of the displeasure of the petitioner, in these circumstances, I have no doubt whatever that neglect and refusal to maintain the respondent on the part of the petitioner is fully established, though the respondent was being paid Rs. 300 a month. Consequently, she is certainly entitled to file the present petition Under Section 125 Cr.PC

8. It is true that the respondent could have gone to a Court of law by filing .a suit for maintenance. That remedy is certainly open to a person who can avail herself of it. is it possible to suggest that the respondent, lonely as she is, deserted as she is sickly as she is and without resources as she is, can go to a Court of law and fight a Civil litigation against her affluent husband which is likely to drag on for years? Even supposing she has filed a suit, would she not be subjected to destitution and vagrancy in the meanwhile? Therefore, Sri Jagannadha Rao's contention that the proper remedy available for the respondent is a civil suit is only an attempt to deny the respondent of her rightful claim Under Section 125 Cr.PC I may reiterate that it is precisely to avoid such distressful situations for the wife and other dependants Section 125 Cr.PC has been enacted.

9. Now coming to the decisions relied on by the learned counsel for the petitioner I have already referred to the Supreme Court decision which is clearly in favour of the petitioner's claim.

10. In E. A. Graham v. E. H Graham ((1926) 26 Cri LJ 831) (Rang) (supra) a learned single Judge disallowed the claim for maintenance of the wife on the ground that she was being paid maintenance by the husband. In that case there was no finding that the amount was not sufficient for her requirements. Therefore, this decision is not of much relevance to the present discussion.

11. In Mi Roshan Bano v. Azim ((1943) 44 Cri LJ 425) (Lah) (supra), there was a compromise between the wife and the husband that the former should receive Rs. 5 as maintenance. Because the wife under the compromise, agreed to receive Rs. 5 as maintenance, the court held that the wife's petition Under Section 488 Cri, P. C. should be dismissed. Since there was an agreement between the parties about the amount and also there was no claim that the amount was not sufficient to meet the requirements of modest living of the wife, this case also does not throw any light on the present problem,

12. In State v. Manda (1956 Cri LJ 482) (Bom) (supra), the discussion was more on the aspect that the wife was attempting to persuade the husband to live separately from his father. When the husband refused to do so, the wife filed the petition Under Section 488 Cr.PC The Court held that in the circumstances, there was no neglect or refusal to maintain.

13. The last decision is Mt. Dhan Kaur v. Niranjan Singh (1960 Cri LJ 1494) (Punj). This decision is relied on toy Sri Jagannadha Rao for the proposition contained in paragraph 4 that no wife shall be entitled to receive allowance from her husband under Section 488 if she is living in adultery or, if without any sufficient reason, she refuges to live with her husband or if they are living separately by mutual consent.

14. None of these contingencies exists in this case. I have rejected the contention that the petitioner and his wife have been living separately by mutual consent. Therefore, these decisions cannot advance the argument of the learned counsel for the petitioner.

15. In the result, I hold, agreeing with the lower court, that there is neglect or refusal on the part of the petitioner to maintain the respondent and that in the circumstances of the case, she is entitled to the maximum fixed Under Section 125 Cr.PC viz. Rs. 500 P. M.

16. The Criminal Revision Case is therefore dismissed.