Professional Documents
Culture Documents
Alimony
SYNOPSIS
Introduction........................................1 Insufficient income ........................... 25
Object .................................................4 Interim order .................................... 26
Adultery ..............................................4 Lawyer wife ...................................... 26
Agreement between parties ................6 Lump-sum payment .......................... 27
Attachment of property ......................7 Maintenance continued as alimony
Cancellation of order .........................7 ......................................................... 27
Christian law......................................8 Meaning of ‘husband’ and ‘wife’..... 28
Claim in appeal ..................................9 Modification of order ....................... 28
Conduct of parties ..............................9 Nullity marriage............................... 29
Consent decree .................................12 Offer of re-union .............................. 32
Considerations for granting alimony13 Powers of Appellate Court ............... 33
Contracting out ................................14 Pregnant wife ................................... 33
Death of husband .............................15 Procedure ........................................ 34
Discretion of Court ..........................16 Quantum .......................................... 34
Disentitlement ..................................17 Remarriage ...................................... 36
Dismissal of proceeding ...................17 Resumption of cohabitation ............. 37
Distinction with maintenance...........20 Right after passing of decree ........... 38
Divorce due to mental disorder .......21 Stage of granting alimony ................ 38
Effect of desertion ............................22 Subsisting marriage ......................... 39
Effective date of modification ..........23 Territorial Jurisdiction .................... 39
Employed wife ..................................23 Withdrawal of petition ..................... 40
Entitlement only after divorce ..........24 Written Application .......................... 40
Formal application ..........................24 Young wife ....................................... 41
Grant of alimony in civil suit ...........25
Introduction
There are various provisions of different statutes dealing with
personal laws which deal with the question of alimony. These statutes
are Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act,
1936 and Indian Divorce Act. The relevant provision of these statutes are
dealt with in this chapter with reference to the judicial precedents. These
provisions are also being extracted hereafter.
Section 25 of Hindu Marriage Act, 1955 is as under:
2 Law of Maintenance
Object
Alimony is not a consequential order of a decree for divorce, but
is a continuing obligation on the party. It is better to provide for the
maintenance of the other party who is weaker between the two. 1
Adultery
An applicant is entitled to maintenance notwithstanding the kind
of matrimonial decree that is passed and the ground on which it is
passed. A decree passed against the applicant on the ground of unchastity
is no bar to his or her claiming maintenance either at the time of passing
such decree or any time subsequent thereto. 2
The Court has ample discretion to grant or refuse maintenance,
and the extent to which the grant the same, depending on the facts and
circumstances of each case. The legislature did not intend to lay down a
rule that in all cases where the claimant has been proved to be unchaste,
he or she should be denied maintenance. On the contrary, the legislative
approach on the subject appears to be liberal, reformative and
conciliatory. The legislature had to be pragmatic on the subject since all
acts of unchastity cannot be painted with the same brush. In one case, a
single fall from virtue may brand a person unchaste while a persistent
unchaste conduct in other case may remain unnoticed for a long time.
Similarly, a person may become a victim of a helpless or an
uncontrollable situation in one case while another case may reveal a
1 Raj Virendra Singh vs. Virendra Singh (Lt. Col.), 1985 (9) DRJ 288
2 See section 37 of Indian Divorce Act, 1869
Alimony—Adultery 5
now, before further damage is done. The real damage is done to Rajni,
aged 5 years, innocent who does not even know as to who her father is.
My heart bleeds for her. The legendary sexual urge of a female has
burdened this society with Rajni. May God bless this innocent child and
grant her with fortune, intelligence and diving and, thus, to become a
legendary woman of this country. My heart goes out to her predicament.
…. This decree of divorce of divorce is going to cost the appellant
heavily. Keeping in view the appalling condition of inflation, under the
provisions of Section 25 of the Act, it was directed that the appellant
shall pay a permanent alimony to his wife-respondent, Rs. 150/- per
month from the date of this judgment.’ 1
1 Hargovind Soni vs. Ramdulari, AIR 1986 MP 57: 1986 MPLJ 105:
1986 Mat LR 86: (1986) 1 DMC 457: (1986) 1 Civ LJ 665: (1986) 1
Hindu LR 543: 1986 Cur Civ LJ 228: (1986) 2 Hindu LR 1.
2 Ravi Singhal vs. Manali Singhal, II (2000) DMC 732 Delhi:
2000(87) DLT 658.
3 Asha Alias Darshan vs. Jai Dayal, 1997 (40) DRJ 1
Alimony—Cancellation of order 7
Attachment of property
In one case the petitioner had asked for permanent alimony under
Section 37 of the Act and in case she succeeded in getting the order of
judicial separation under Sections 22 and 23 of the Act in her favour and
against the respondent, she would be entitled to the grant of permanent
alimony. It was held that therefore, there should be left some security in
the form of immoveable properties or otherwise which should be
sufficient and adequate enough for the grant of permanent alimony under
section 37 of the Act and that the house of husband can be adequate
security for the payment of permanent alimony to the petitioner in case it
is granted by the Court because every Court has inherent power to grant
relief during the pendency of the proceedings if the interest of justice so
requires. 2
Cancellation of order
Under Section 25(1) of Hindu Marriage Act, 1955, a gross sum
can be decreed. In terms, sub-s. (3) does not restrict the powers of the
Court to rescind only the payment of monthly and periodical sums. Sub-
section (3) has been widely couched and prima facie it might be made
applicable to rescission of an order awarding a gross sum. Though the
matter is not free from difficulty on account of the inartistic language in
which the section has been worked and the absence of any authority on
the point, on a close scrutiny, the view that a decree awarding gross sum
cannot be rescinded appears to be more reasonable. The difference in
wording in sub-sections (2) and (3) is somewhat significant. Under sub-s.
(2), it the Court is satisfied that there is a change in the circumstances of
either party at any time after the order has been made under sub-s. (1), it
may vary, modify or rescind any such order in such manner as it may
deem just. To illustrate, if the husband had higher income at the time of
the decree, but he becomes indigent later on and is not in a position to
pay the sums towards maintenance, the Court may step in to reduce the
amount. Similarly if the wife gets an employment and earns a substantial
income sufficient to maintain herself, the Court may rescind the order or
decree granting maintenance. Thus in case of change in circumstances,
1 Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo, AIR
1981 SC 1937: 1981(4) SCC 613: 1982(1) SCR 417: 1981(3) Scale
1425
2 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185
Del.
8 Law of Maintenance
the Court has been given ample power either to vary, modify or rescind
the order. 1
Under sub-section (3), however the Court has been given the
power only to rescind. The word ‘rescind’ means to annual or cancel. If
the conditions prescribed under sub-s. (3) exist, that is, if a party in
whose favour the order has been made remarries, or, if such a party is the
wife and she does not remain chaste, or, if such a party is the husband
and he has had sexual intercourse with any woman outside wedlock, the
Court shall rescind the order. In case of payment of monthly or
periodical sums, the Court can rescind the order as such payments relate
to future payments only. Conferring power on the Court to annul future
payments after accrual of cause of action as prescribed in sub-s. (3)
appears to be reasonable. The same argument does not, however, apply to
rescission of an order granting gross sum, which would amount to
annulment of a past liability and not a future one. Such annulment also
would lead to an absurdity inasmuch as the past dues accruing in favour
of the wife in between decree and the remarriage cannot be rescinded
under the sub-section as such liability constituted an integral part of the
gross sum decreed. The past and future liabilities constituting the gross
sum are not severable. Rescission of such an indivisible liability cannot
therefore be countenanced. 2
Christian law
When the suit filed by the husband was dismissed hence the grant
of maintenance is irregular. Section 36 of the Indian Divorce Act
provides that the wife may present a petition for alimony pending the
suit. The Court on being satisfied on the truth of the statement therein
contained, may such order on the husband for payment to the wife of
alimony pending the suit as it may deem just. Section 15 of the Indian
Divorce Act also provides that in any suit instituted for dissolution of
marriage, if the respondent opposes that relief sought on the ground, in
case of such suit instituted by a husband, of his adultery, cruelty, or
desertion without reasonable excuse, or in case of such suit instituted by
a wife, on the ground of her adultery and cruelty, the Court may in such
give to the respondent on his or her application, the same relief to which
he or she would have been entitled in case he or she had presented a
petition seeking such relief, and the respondent shall be competent to
give evidence of or relating to such cruelty or desertion. Thus, it is seen
that the Court has power to grant maintenance pending suit under Section
36 of the Indian Divorce Act and has power to order maintenance under
Section 37 of the Indian Divorce Act only when a decree is made
absolute decelerating the marriage to be dissolved, or on any decree of
judicial separation obtained by the wife. Permanent alimony and
maintenance can only be granted in case divorce is granted and if the
marriage between parties subsists. If the petition by the husband as in the
instant case fails, then no decree is passed, i.e., the decree is denied to
the husband. Alimony, cannot, therefore be granted in a case where a
decree for divorce is reused. Ultimately alimony on a permanent basis as
maintenance is given to an ex-spouse and if a petition fails, then the
marriage still subsist unaltered by the intervention of any decree and the
normal rights of the parties to be found in the legal system under which
they are married has to prevail. Thee is no question of granting alimony
in such cases, because the matrimonial rights of the parties are to be
found in the legal system which operates, requiring one of the parties to
support the other and if there is failure to do so, then the other partner
can seek maintenance by recourse of the civil or criminal Court. There is
no question of granting alimony in such cases. The word “decree” is used
in matrimonial cases in special sense different from that in which it is
used in Civil Procedure Code. 1
Claim in appeal
Merely because a prayer can be made subsequently to the same
court would not defeat the right of appeal of a party. Therefore, it is to
be considered whether this appeal is maintainable. An appeal lies against
an order under Section 25 as provided in Section 28(2). An order under
Section 25 of the Act envisages either refusal of the relief or grant of the
same. Therefore when a Court has power to deal with an application
subsequent to the decree in a proceeding, ignoring the same cannot be
said to be an order. In the circumstances there being no order under
Section 25 of the Act, the appeal is not maintainable. 2
Conduct of parties
Apart from the property or income available to either the husband
or the wife, the relevant factor is the conduct of the parties by which one
may reasonably understand the conduct not merely of a wife who applies
for or claims alimony but also of the husband in relation to their life
together as husband and wife. 1
In Patel Dharmshi Premji vs. Bai Sakar Kanji, 2 permanent
alimony and maintenance were claimed long after the passing of the
decree of divorce, and the person who claimed maintenance was also
guilty of not obeying the decree for restitution of conjugal rights. When
an objection was taken that Section 25 cannot be invoked by a wife after
a decree of divorce had been passed against her and an erring wife
cannot maintain an application under Section 25 of the Hindu Marriage
Act, the Court held that under Section 25, permanent alimony can be
granted to a wife even after a decree of divorce had been passed against
her as that section specifically use the words “at any time subsequent
threreto” and that maintenance can be granted thereunder even to an
erring spouse and that the mere fact that the wife did not comply with the
decree for restitution of conjugal rights and that was the cause for
passing of a decree against her, cannot by itself disentitle her to claim
permanent alimony under the section. In that case, Bhagwati, J., as he
then was, referred to the following observations of Denning, LJ., in
Sydenbam vs. Sydenbam and Illingworth. 3
“There is nothing in the statute to say that a wife against whom a
decree has been made cannot be awarded maintenance, and there
is nothing in it about discretion being exercised in favour of one
side or the other or about a compassionate allowance. All it says
is that on a decree of divorce the Court may award maintenance
to the wife. This includes a guilty wife as well as an innocent one
but, in awarding maintenance the Court must have regard, of
course, to the conduct of the parties.”
His lordship also referred to the observations of Hodson, LJ in
Clear vs. Clear, 4 wherein a difference has been made in a common law
right to get maintenance and the right to get maintenance arising by
virtue of divorce legislation, and that even it the wife has forfeited her
right to get maintenance under the common law, she is entitled to get
maintenance under a provision of the divorce legislation. After making
reference to the above observations of Denning LJ and Hodson LJ., it
was pointed out in the Gujarat Case that under Section 25 Hindu
Marriage Act, 1955, permanent alimony can be granted to even an erring
spouse and that the fact that the wife was the guilty spouse can only be
Consent decree
The whole purpose of Section 19(2) of the Act was that if
conciliation between the parties has been arrived at, the parties are
bound by it and cannot wriggle out of it. This is the reason why it has
been provided against a decree passed on the basis of compromise. If the
arguments of learned Counsel for the appellant were to prevail it would
mean that the object of the Act, i.e. conciliation and early settlement of
disputes between the wife and husband would be fraught with danger and
would be completely outside the aims and objects of the Act. We are
accordingly of the considered opinion that in view of the provisions of
Section 19(2) of the Act no appeal would be maintainable against the
judgment decree of divorce based on conciliation between the parties. As
the appeal itself is not maintainable the other submissions need not be
considered. 3
1 (1929) 56 IA 182
2 Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984)
DMC 11 Bombay.
3 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
14 Law of Maintenance
Contracting out
The case of Hirabai Bharucha vs. Pirojshah Bharucha 3 stems
from proceeding under Section 40 of the Parsi Marriage and Divorce Act
1936. under this provision, a Court is authorised to award permanent
alimony to a wife either at the time of he passing of any decree under
that Act or subsequently thereto. The wife is granted a decree of divorce.
After the decree is passed, the husband and wife arrive at certain consent
terms. One of the terms of the consent order is:
“This Court both declare that the defendant hereby agree not to
claim any alimony now or at any time in future”.
The wife applied under Section 40 for alimony. It was held that
on grounds of public policy the wife cannot enter into a contract that she
will not claim any alimony in future. The contract was void and the
Court will take notice of that and ignore that part of the order although it
was made by consent. Reliance was placed upon a remark of Lord Atkin:
“The wife’s right to future maintenance is a matter of public
concern which she cannot barter away.”
Accepting this proposition, the court in above case took the view
that the wife can not barter away her right to future maintenance and
enter into a contract to that effect and such a contract will be a void
contract in the eye of law.
1 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
2 Shanti Devi vs. Raghav Prakash, II (1985) DMC 85 Raj: (1985) 1
WLN 437: 1985 Rajasthan LR 536: (1985) 2 Cur CC 305: (1985) 2
Hindu LR 301: AIR 1985 Raj 13
3 AIR 1945 Bombay 537
Alimony—Death of husband 15
Death of husband
One view is that the payment of alimony is, by its very nature, a
personal obligation and this being so, it must inevitably come to an end
with the deceased husband no longer being there to fulfil it. Further, it is
equally clear that the amount payable as alimony does not ipso facto
become a charge on the respondent’s property. A plain reading of
Section 25 of the Act would show that such a charge can be created only
by a specific order to that effect in terms of the provisions thereof. In
other words, the section contains en enabling provision regarding
creation of a charge on the immoveable property of the respondent to
secure the payment of alimony, but it nowhere lays down that such a
charge shall be inherent in an order awarding alimony. Admittedly, no
such order had been passed in the present case. Alimony, being at any
rate a right enforceable against the husband in personam, it must be
deemed to have ceased with the death of the husband. 2
However another view is that there is no rationality in the
contention that a decree for maintenance or alimony gets extinguished
with the death of the husband when any other decree even though not
charged on the husband’s property would not get so extinguished. A
decree against the husband is executable against the estate of the
husband in the hands of the heirs and there is no personal liability. In
law a maintenance decree would not make any difference. The decree
indicates that maintenance was payable during the life time of the
widow. To make such a decree contingent upon the life of the husband is
contrary to the terms and the spirit of the decree and the appellant has
1 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
2 Mst. Gurdev Kaur vs. Mst. Channo, AIR 1986 P&H 251: (1985) 2
Hindu LR 591: ILT (1986) 1 P&H 208: 1985 Recent Laws 205: 1985
(2) 88 Pun LR 603: 1986 Marri LJ 371.
16 Law of Maintenance
taken a stand that though the widow is alive, the decree obtained by her
would become ineffective with the passing away of the husband. 1
Where maintenance has been made a charge on the husband’s
estate, the death of the husband would not at all affect the decree and not
withstanding such death, the estate can be proceeded against for
realization of the maintenance dues for post-death period. 2
In regard to the Special Marriage Act it was held that it was a
statute of 1954 made by the Indian Parliament after independence. For
the interpretation of a provision of this statute there is no warrant to be
guided by English decisions. There is no ambiguity in Section 37 for the
interpretation of which it is necessary to go beyond the provision itself.
It is one of the settled principles of interpretation that the Court should
lean in favour of sustaining a decree and should not permit the benefit
under a decree to be lost unless there be any special reason for it. In
incorporating a provision like Section 37 in the Act, Parliament intended
to protect the wife at the time of divorce by providing for payment of
maintenance. If the husband has left behind an estate at the time of his
death there can be no justification for the view that the decree is wiped
out and the heirs would succeed to the property without the liability of
satisfying the decree. 3
Discretion of Court
Sub-section (3) provides for varying, modifying or rescinding of
the order of maintenance in two eventualities viz. the beneficiary of the
maintenance order has remarried or has not remained chaste. Even in
such case the maintenance order is not necessarily to be varied, modified
or rescinded but may be varied or modified or rescinded or only varied or
modified instead of being rescinded and that too in such manner as the
court may deem just. The history of the sub-section shows that prior to
its amendment by Act 68 of 1976, for the words “it may at the instance
of the other party vary, modify or rescind any such order in such manner
as the court may deem just” the words were ‘it shall rescind the order”.
The deliberate change which the legislature has made in the language of
the sub-section therefore shows that the Court is given a wife discretion
in the matter depending upon the facts of each case. It is necessary to
emphasize this discretion vested in the Court 4 discussed above, appear to
Disentitlement
Wife committing act causing miseries to husband and continue to
harass the husband even after the dissolution of marriage. Rarest of rare
case in which wife extracted further sum with the help of police from the
husband, it was held that the amount of alimony cannot be enhanced any
further. 2
The effect of non-reconciliation on the part of the parties should
not be blown out of all the proportions. In this case, the wife had
deserted the husband and consequently a decree of divorce was granted.
In a Court of law it would be almost impossible to find out the true facts
regarding the justification of the conduct of wife. She was required to
live with the parents of the husband. She would not able to prove fact for
justifying her conduct. The fact remains that she was required to live in
strange place without the support of the persons who could adjust with
her despite her defects. In that situation refusal of wife to live with the
husband may have some justification which she was unable to prove in
accordance with law. Consequently, the Court may objectively consider
conduct of the husband too along with that of wife or coming to just
conclusion. The Court cannot take one sided view of the matter. Wife
cannot permanently live with her parents for the simple reasons her
parents are likely to out live her in normal circumstances where she will
go. She is, therefore, entitled to maintenance and it is the legal duty of
the husband under Section 25 of the Hindu Marriage Act, 1955 to
divorcee wife. 3
Dismissal of proceeding
The word ‘decree’ as used in Section 25 cannot be understood in
a sense different from that, in which it is used in other provisions of the
Act. No doubt, the Code of Civil Procedure gives a different definition to
the word ‘decree’ than that in Hindu Marriage Act, 1955. Alimony can
be granted on a proper construction of the Act only when a decree has
been passed of the type mentioned earlier. If a decree has been passed of
The words, ‘at the time of passing any decree or any time
subsequent thereto’ indicate that an order for permanent alimony or
maintenance can only be made when a decree granting substantive relief
is passed. However, the relief of permanent alimony cannot be given
where the main petition for relief under the Act such a divorce judicial
separation, etc. is dismissed or withdrawn. 1
When a Court has power to deal with an application subsequent to
the decree in a proceeding, ignoring the same cannot be said to be an
order. In the circumstances there being no order under Section 25 of the
Act, the appeal is not maintainable. 2
Permanent alimony and maintenance under Section 25 of Hindu
Marriage Act, 1955, can only by granted in case divorce is granted and
not if the marriage subsists. The word ‘decree’ is used in matrimonial
cases in a special sense different from that in which it is used in Civil
Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means
the passing of the decree of divorce, restitution of conjugal rights, or
judicial separation and not the passing of a decree dismissing the
petition. If the petition fails then no decree is passed, i.e., the decree is
denied to the applicant. Alimony, cannot therefore, be granted in a case
where a decree for divorce or other decree is refused because in such a
case the marriage subsists. 3
The words “at the time of passing any decree or at any time
subsequent thereto” contemplate that the jurisdiction under Section 25 can be
exercised only when the main petition is allowed and a decree as
contemplated by Section 9 to 13 is passed by the Court. For example, had the
application for divorce been allowed, the Court would have been competent
to pass an order under Section 25. The view that when the main petition is
dismissed, the Court has no jurisdiction to pass any order under Section 25 of
Hindu Marriage Act, 1955, is supported by a large number of authorities.4
1 Badri Prasad vs. Urmila Mahobiya, AIR 2001 Madhya Pradesh 106.
2 Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184:
(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Vut LT 417:
(1987) 1 Hindu LR 222.
3 Ranganatham vs. Shyamala, AIR 1990 Mad 1.
4 Darshan Singh v. Daso, 1 (1981) DMC 210. Gurcharan Kaur v.
Ram Chand, AIR 1979 P&H 206, Hiralal v. Lilavati AIR 1961
Gujarat 202, Shantaram v. Hirabai, AIR 1962 Bom 27, Minarani v.
Dasarath, AIR 1963 Cal. 428 and Akasam Chinna v. Parbati AIR
1967 Orissa 162.
20 Law of Maintenance
1 (1993) 3 SCC 406: 1993 AIR SCW 2548: 1993 (3) SCR 954: 1993
(2) DMC 110
2 Chand Dhawan vs. Jawaharlal Dhawan, SCR 1993(3) 954.
Alimony—Divorce due to mental disorder 21
1 Mukesh Mathur vs. Veena Mathur, II (1989) DMC 525 Raj: (1988)
Raj LW 676: (1988) 1 Rajasthan LR 854: (1988) 2 Civ LJ 718:
(1989) 2 Cur CC 499.
2 Umesh Chand vs. Rameshwari Devi, I (1982) DMC 211 Raj: AIR
1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982 Hindu LR
172: 1982 Raj LR 21.
Alimony—Entitlement only after divorce 23
Employed wife
To grant permanent alimony under Section 25 of the Hindu
Marriage Act, 1955 or not, is a discretion of the Court. Permanent
alimony can be granted only when the wife has no sufficient independent
source of income. In one case both the lower Courts, considering the
evidence on record and particularly, the conduct of the wife, refused to
grant permanent alimony to her. It was amply proved that the husband
tried his level best to bring back the wife for leading a peaceful marital
life. Similarly, efforts for reconciliation were made even after a decree
of restitution of conjugal rights was passed by the lower Courts, but it
was found that the wife was not ready to join the society of her husband
though the husband was ready to join the society of his wife. The learned
Counsel for the wife stated that the wife was working as a Laboratory
Assistant in the school at Paratwada and getting more than Rs.2000/- pm.
On these facts it was held that the wife being an earning member, she
was not entitled for the permanent alimony under Section 25 of the
Hindu Marriage Act, 1955. 3
Formal application
The jurisdiction under Section 25 is attracted “on application
made to it (Court) for that purpose by either the wife or the husband. In
the absence of an application, the Court has no jurisdiction to pass an
order under Section 25. 3
Claim under Section 25 of the Act has to be made on an
application furnishing all details regarding his or her own income or
other property. Further an opportunity to be given to the other side to put
forth his/her defence. Only on application an order has to be passed by
the Court granting, “permanent alimony” and “maintenance” under
Section 25 of the Act. 4
The absence of an application under Section 25 Hindu Marriage
Act, 1955 gave rise to want of essential preliminaries prescribed by the
1 Vinod Chandra Sharma vs. Rajesh Pathak, II (1987) DMC 150 All:
(1987) 1 Hindu LR 558: (1987) 1987 Mad LR 369.
2 Vinod Chandra Sharma vs. Rajesh Pathak ibid
3 Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP.
4 D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB):
AIR 2001 Madras 147.
Alimony—Insufficient income 25
law for clothing the court with the jurisdiction to act under Section 25.
This defect of jurisdiction made the order a nullity and so non-
executable. Although the executing Court cannot go behind the decree or
order which it is required to execute, it can examine the question whether
the decree or order is a nullity or not for lack of jurisdiction. 1
However another view is that the Section 25 when it speaks of an
application does not specify that the same has to be in writing. An
application can be in writing as also by word of mouth. The fact that the
trial Court passed an order for alimony would imply that an oral
application had been made to it. 2
Insufficient income
It most cases the standard of living of one or both of the parties
will have to suffer because there will be two families to support instead
of one. When this occurs, the court clearly has to decide what the
priorities are to be and where the inevitable loss should fall. The wife is
the financially dependent spouse. She is potentially likely to suffer
greater financial loss from the dissolution or annulment of the marriage
than the husband. But her need cannot be denied. Having regard to all the
circumstances of the case the court has to award a reasonable amount. 1
The fact that the salary of Rs. 328/- is insufficient for the
maintenance of the father and his two sons in not a ground which ought
to be taken against wife. 2
Interim order
In one case the petitioner/wife had asked for permanent alimony
under Section 37 of the Divorce Act and in case she succeeds in getting
the order of judicial separation under Sections 22 and 23 of the Act in
her favour and against the respondent, the petitioner will be entitled to
the grant of permanent alimony. Therefore, there should be left some
security in the form of immoveable properties or otherwise which should
be sufficient and adequate enough for the grant of permanent alimony
under section 37 of the Act and that aforementioned house in Green Park
can be adequate security for the payment of permanent alimony to the
petitioner in case it is granted by the Court. Every Court has inherent
power to grant relief during the pendency of the proceedings if the
interest of justice so requires. 3
Lawyer wife
In one case Husband possessed Master Degree in Social Work
and also Law Degree. Wife was an Advocate. However, she had started
her professional career only after dissention arose between the parties. It
is stated that husband was having no employment at present. In these
circumstances it was held as under:
‘Be that as it may, a wife in such circumstances is always to be
protected. In our Society a husband can get easily married but our
Society has not changed far to accept a divorced wife to be
married again in normal circumstances. Legal Profession for the
beginner is very hard. Husband has liability to maintain a wife.
Husband has approached Court for divorce. Therefore, he is to
pay some alimony to the wife. With gradual experience wife will
have her own income from the profession if she proves
successful. She may also get married if a suitable match is
available. Keeping all these circumstances a monthly payment of
Rs. 500/- (five hundred) would be adequate. Monthly payment by
itself is continuing process and may cause difficulty to both the
parties.’
Lump-sum payment
In one case wife, with whom the son born out of wedlock was
living, has no income or property of her own has not been disputed. It
appeared from the evidence on record that she has been living in the
house of her brother. The son was aged twelve and was school going.
The father of child and the husband used to serve in the Government of
India Press and he had already retired on attaining the age of
superannuation. It was also found that he made default in payment of
alimony pendente lite. So in these facts and circumstances of the case it
was held that it would be reasonable that a gross sum should be awarded
as permanent alimony. Thus it was held to be reasonable to grant a gross
sum of Rs. 30,000/- as permanent alimony to be paid by the petitioner-
husband to the respondent-wife. 2
the rate of Rs. 300/- per month. During the pendency of the present
appeal, the appellate court had directed that the appellant petitioner will
continue to receive alimony pendente lite at the same rate. Ultimately it
was held that she is entitled to receive permanent alimony from the
respondent husband at the same rate and in case, there is any change of
circumstance, either party was granted liberty to apply to the trial Court
for variation, modification or rescinding the order under Section 25 as
the said Court may deem just. 1
Modification of order
Statutory provision of Section 25 Hindu Marriage Act is no more
than a codification of the existing provisions of the Hindu Law which
Nullity marriage
Marriage is both a sacrament and a contract for the Hindus. The
resultant relationship is both as also contractual. The grounds mentioned
in Section 5(2) of the Act as invalidating a Hindu Marriage are
incapacity to enter into a contractual relationship because of the minority
or unsoundness of mind or an inherent incapacity to achieve the very
purpose of the marriage, namely procreation, due to lack of capacity to
consummate the marriage. These are considerations which may vitiate a
contract. Invalidation due to any or all these grounds in virtually an
annulment of the contractual relationship. It is only just and proper that a
person who induced another to enter into a contractual relationship
inspite of the existence and awareness of essentially invalidating
circumstances compensates that other as an incidence of the decree of
annulment which he obtains. It may be that because these jural and
contractual relationships are so inter wined in Hindu Marriages the
former also snaps when the latter is annulled. The obligation flowing out
of the jural relationship which the court disrupts by its decree seems to
be sufficient justification for an order to pay maintenance subject to
reasonable restrictive conditions even after the decree of annulment. 2
Section 25(1) of the Hindu Marriage Act enjoins either on the
husband or the wife even after a decree under the Hindu Marriage Act is
passed, to pay maintenance to the order. In the instant case, it is not in
dispute that a decree for annulment of marriage was passed by this Court
MFA No. 387 of 1973 on 20-2-1976. That being so, it is obvious that the
erstwhile wife in the instant case could maintain an application for
maintenance. The different types of decrees that are contemplated under
the Hindu Marriage Act: decree for judicial separation, decree for
1 Menokabala Dasi vs. Panchanan Seal, AIR 1966 Cal 228 (DB): 69
Cal WN 938.
2 Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524
Kerala.
30 Law of Maintenance
alimony after such decree is not permissible which can only be granted
where marriage is dissolved by decree of divorce or judicial separation. 1
A some what middle course has been adopted in a recent case.
According to this case section 25 of Hindu Marriage Act, 1955 confers a
statutory right on the wife and the husband and confers jurisdiction on
the Court to pass an order of maintenance and alimony in proceedings
under Section 9 to 14 of the Hindu Marriage Act. At any time before or
after the decree is passed in such a proceeding, therefore, the wife or
husband could make such a claim and the conditions of Section 25(1)
will have to be satisfied. There must be a matrimonial petition filed
under the Hindu Marriage Act, then, on such a petition, a decree must be
passed by the Court concerning the material status of the wife or
husband. It is only when such a decree is passed that the right accrues to
the wife or the husband and confers jurisdiction on the Court to grant
alimony. Till then, such a right does not take place. Not only that the
Court retains the jurisdiction even subsequent to passing of such a decree
to grant permanent alimony when moved by an application in that behalf
by a party entitled to, the Court further retains the power to change or
alter the order in view of the changed circumstances. Thus, the whole
exercise is within the gamut of a broken marriage. Thus, the Legislature
while codifying the Hindu Marriage Act, reserved the right of permanent
maintenance in favour of the husband or the wife as the case may be
depending on the Court passing of the kind as envisaged under Section
14 of the Act. Thus, Section 25 should not be construed in such a manner
as to hold that notwithstanding the nullity of the marriage, the wife
retains her status for purposes of applying for alimony and maintenance.
In our view, the proper construction of Section 25 would be that where a
marriage admittedly is a nullity, this section will have no application.
But, where the question of nullity is in issue and in contentious, the
Court has to proceed on the assumption until the contrary is proved, that
the applicant is the wife. 2
Offer of re-union
The wife could show that although she did not comply with the
decree for restitution of conjugal rights she could provide some cause to
live away from the husband by supporting the same by evidence. But she
did not raise any plea whatsoever as to why she is willing to live away
from her husband. In execution proceedings her stand was that she had
danger to her life. In those proceedings, she led no evidence on that
1 Lydia Renuka vs. K. Soloman Raju, 1995 (2) DMC 619 AP: 1996(1)
CCC 311 (AP).
2 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP.
Alimony—Pregnant wife 33
Pregnant wife
In case, the marriage has been dissolved under Section 13(1) (ia)
of the Hindu Marriage Act, 1955 on the ground that the wife was living
Quantum
In order to grant permanent alimony to a divorced wife, the
factors such as status of the parties, their sources of income, and
properties, if any, held by them, their employment etc., are to be taken
into consideration. 3
Taking all these factors into consideration, it was held that
instead of directing the respondent to pay monthly to pay monthly
maintenance to the appellant, the respondent could be directed to pay a
lump sum amount towards permanent alimony to the appellant which
could be just and reasonable for her maintenance. The facts of this case
were that the wife was practising as qualified Post-graduate doctor in
1 Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5:
1982 Rajdhani LR 622.
2 Jayanti Menjet vs. Asit Kumar Mohanty, AIR 1988 Orissa 195:
(1988) 1 Orissa LR 277: (1988) 1 Cur CC 702: 1988 Mat LR 301
3 Lokeshwari vs. Srinivasa Rao, II (2000) DMC 351 AP.
Alimony—Quantum 35
Remarriage
The language of the section 25 of Hindu Marriage Act, 1955 is
clumsy, though the clear intendment of the section is that any court
exercising jurisdiction under the Hindu Marriage Act shall have the
power to award maintenance in any proceeding, be it one for judicial
separation or for restitution of conjugal rights or for dissolution of
marriage by divorce or for annulment of marriage by a decree of nullity.
This view is fortified both by the heading of the section and the language
of the principal clause in the section. The heading in Section 25 runs as
follows: ‘Permanent alimony and maintenance’. The heading suggests
that it applies to all cases coming under the Hindu Marriage Act and not
necessarily and exclusively to cases where the marital tie has been
dissolved by an order of court. 1
In fact, the main clause in the section — ‘any court exercising
jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto ………………shall………….pay to the
applicant for her or his maintenance’ etc. — indicates the Legislature
intent to confer upon any court exercising jurisdiction under the Hindu
Marriage Act, the power to award maintenance in any proceeding under
the Act. But unfortunately, later on, in a subordinate clause, the
Legislature uses the words “while the applicant remains unmarried”. This
expression is not intended to cut down or curtail the scope of Section 25.
Nor can it be construed as applying only to a case of a dissolution of
marriage or an annulment of marriage. 2
It, is therefore, wrong to whittle down the scope of Section 25 of
Hindu Marriage Act, 1955 by invoking the clumsy phrase ‘while the
applicant remains unmarried’, a phrase, which has been inadvertently
used by an unimaginative draftsman. The phrase ‘while the applicant
remains unmarried’ was evidently intended to do duty for the expression
‘while the applicant remains without incurring any legal disability
justifying the rescission of the allowance awarded under the decree’. It is
the duty of the court to put a construction upon the section, which does
not attribute absurdity to the legislature and which would advance the
remedy and suppress the mischief. 3
Resumption of cohabitation
The principle is whether there has been resumption of
cohabitation so as to demolish the effect of the decree. Whether there has
been resumption of the cohabitation or not does not depend upon the
duration of the stay. It rather depends on the animus of the parties and
their mental attitude in coming to gather again. When cohabitation is
resumed, there is a waiver on the part of the wife of the cause of action
on which the suit and the decree were founded. Whatever might be the
ground on which the decree has been obtained, the same result follows, if
subsequent to the decree there is a resumption of cohabitation. 4
1 A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87
Mad LW 537: (1974) 2 Mad LJ 237.
2 A.R. Munuswamy Rajoo vs. Hamsa Rani ibid
3 A.R. Munuswamy Rajoo vs. Hamsa Rani ibid.
4 Bussa Ansuya vs. Bussa Rajaiah, AIR 1971 AP 296: (1971) 1 Andh
WR 191.
38 Law of Maintenance
1 Durga Das vs. Tara Rani, AIR 1971 P&H 141 (FB): 70 Pun LR 923:
ILR (1970) 2 Punj 551.
2 Meerabai vs. Laxminarayan Mishra, I (1984) DMC 120 MP.
Alimony—Territorial Jurisdiction 39
Subsisting marriage
Permanent alimony and maintenance under Section 25 of Hindu
Marriage Act, 1955, can only by granted in case divorce is granted and
not if the marriage subsists. The word ‘decree’ is used in matrimonial
cases in a special sense different from that in which it is used in Civil
Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means
the passing of the decree of divorce, restitution of conjugal rights, or
judicial separation and not the passing of a decree dismissing the
petition. If the petition fails then no decree is passed, i.e., the decree is
denied to the applicant. Alimony, cannot therefore, be granted in a case
where a decree for divorce or other decree is refused because in such a
case the marriage subsists. 2
Territorial Jurisdiction
Referring to the phraseology of Section 25, stress was laid on the
words “on application made to it for the purpose”. From these words it
was sought to be inferred that ‘it’ is the Court, which passed the decree,
and that court alone is entitled to entertain such application. It was held
that ‘if this interpretation were to be placed on these words, it will lead
to anomalous results as would be clear from the following example.
Suppose, a divorce petition is dismissed by the first Court and the
dismissal is confirmed by the High Court and the matter goes to the
Supreme Court and the Supreme Court grants a decree of divorce. The
interpretation sought to be placed on Section 25 of the Act and on the
word ‘it’, would mean that a petition for grant of permanent alimony
under Section 25 of the Act will have to be filed before the Supreme
Court. Similarly, if the divorce petition was declined by the first Court,
but was granted by this Court, the application for the grant of permanent
alimony will lie to this Court. This is not the scope of either Section 25
or conveyed by Section 19 of the Act. Moreover, the opening part of
Section 25 shows that the proceedings may be taken before ‘any’ Court
exercising jurisdiction under this Act and the jurisdiction under this Act
is exercised in view of Section 19 of the Act on matters arising under the
1 Ramadevi vs. Ashok Kumar Mohanlal Vyas, 1994 (1) DMC 286
(DB) MP.
2 Ranganatham vs. Shyamala, AIR 1990 Mad 1.
40 Law of Maintenance
Withdrawal of petition
In a proceeding filed under the Act for divorce judicial separation
or restitution of conjugal rights, the respondent in addition to opposing
the claim made by the petitioners is entitled to make a counter claim for
any relief under the Act on the ground of petitioner’s adultery, cruelty or
desertion. Now the relief claimed by the respondent wife is permanent
alimony for herself and for the minor child. This claim falls under
Section 25 of the Act.
Section 23-A of the Act, clearly provides that in a proceeding for
divorce, judicial separation or restitution of conjugal rights, the
respondent can make a counter claim for any relief under the Act on the
ground of the petitioner’s adultery, cruelty or desertion. The contention
raised in the application is that the petitioner husband has treated her
with cruelty. Therefore the claim satisfies the requirements of Section
23-A of the Act. That being so, when there is a counter claim and that
counter claim falls within the scope of Section 23-A read with Section 25
of the Act, in such a situation, if the petitioner is allowed to withdraw
the main petition it will seriously affect the counter claim made by the
respondent because the counter-claim can be entertained only when there
is a proceeding for divorce or judicial separation or restitution of
conjugal rights. 2
Written Application
Section 25 of the Act contemplates an application for the said
purpose. When the lower Court has not disposed of Section 24
application in time and has disposed of along with the main application,
it should have disposed of the application under Section 25 also.
Therefore, one more litigation could be avoided and on the basis of very
same order, the maintenance could be provided for the wife and child.
From the conduct of the respondent, it is clear that he will not pay the
maintenance which is legally due to the petitioner. Under these
circumstances, asking the petitioner to file another application under
Section 25 or asking to file a separate suit and again seeking indulgence
of the Court below will be harsh. The Act does not say that there should
be a written application. It only says that an application made to it. It can
also be on the basis of oral application. 1
Section 25 of Hindu Marriage Act, 1955 when it speaks of an
application does not specify that the same has to be in writing. An
application can be in writing as also by word of mouth. The fact that the
trial Court passed an order for alimony would imply that an oral
application had been made to it. 2
Section 25 of the Hindu Marriage Act, 1955 gives inherent
jurisdiction to the Court to grant permanent alimony to either spouse, at
the time of passing any decree or at any time subsequent thereto,
directing the respondent to pay to the applicant for her maintenance such
amount as may appear to the Court to be just. Therefore even when no
written application has been filed on behalf of the appellant for seeking
an order of permanent alimony, yet the court can pass an order in respect
thereof on the oral application of the appellant’s learned counsel. 3
Young wife
If the wife is young it does not mean that she should not be
awarded permanent alimony. Only on remarriage she will forfeit her
right. It is general principle of the matrimonial legislation that, if a
former spouse remarries, she (or he) must look to her new partner for
financial provision for herself, and not to the old one. The court cannot
suggest to the wife that she should remarry and that she will not be
awarded maintenance because she is very young. The law now
encourages spouses to avoid bitterness after family break-down and to
settle their money and property problems. 4
The primary consideration under Section 25 of Hindu Marriage
Act, 1955 is to see whether the wife has anything for her support and
Chapter 2
Maintenance pendente lite
SYNOPSIS
Introduction......................................44 Duty of husband............................... 80
Object ...............................................46 Effect of interim maintenance.......... 81
Allegation of adultery ......................49 Effect of non payment on appeal ..... 81
Alternative forums............................50 Effect of operation of Hindu Adoptions
Appeal ..............................................51 & Maintenance Act .......................... 82
Appeal under Family Court Act .......51 Enforcement of order....................... 82
Award to children ............................52 Enhancement of amount of
Burden of proof ................................53 maintenance..................................... 84
Challenge in Appeal.........................54 Entitlement of children .................... 84
Challenge in revision .......................56 Filing of written statement............... 85
Civil Procedure Code is applicable .56 Form of order .................................. 86
Comparison between Hindu Adoptions Forum of appeal .............................. 86
& Maintenance Act & Hindu Marriage Grant in Revision............................. 87
Act, 1955 ..........................................57 Independent income of wife ............. 87
Compliance of order ........................57 Jurisdiction of Family Court ........... 88
Computation.....................................58 Jurisdictional issue .......................... 89
Conclusion of proceedings ...............59 Justification for living separately .... 89
Conditions for granting Letters patent appeal ....................... 89
maintenance .....................................60 Litigation Expenses ......................... 90
Conduct of parties ............................61 Meaning of “Maintenance” ............ 90
Consent order...................................62 Meaning of support ......................... 90
Considerations for granting Modification of order ...................... 90
maintenance .....................................62 Multiple remedies ............................ 91
Date from which amount granted ....65 Necessity of affidavit ....................... 92
Delay in disposal..............................68 Necessity of reconciliation .............. 92
Denial of marriage...........................69 Necessity to grant maintenance ....... 93
Determination of amount .................70 Non working husband ...................... 93
Discretion of Court ..........................71 Non-compliance............................... 93
Dismissal of main petition ...............73 Object of Hindu Adoptions &
Disputed marriage ...........................76 Maintenance Act .............................. 94
Distinction with alimony ..................77 Order under Criminal Procedure Code,
Distinction with Section 125 Criminal 1973 ................................................. 94
Procedure Code ...............................78 Pendency of proceedings ................. 94
Duration of payment ........................78 Postponement of Application ........... 96
44 Law of Maintenance
Introduction
There are various provisions of different statutes dealing with
personal laws which deal with the question of maintenance pendente lite.
These statutes are Hindu Marriage Act, 1955, Special Marriage Act,
Parsi Marriage Act, 1936 and Indian Divorce Act. The relevant
provisions of these statutes are extracted hereafter.
Section 24 of Hindu Marriage Act, 1955 is as under:
Maintenance pendente lite and expenses of proceedings.— Where
in any proceeding under this Act it appears to the Court that
either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application
of the wife or the husband, order the respondent to pay to the
petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner’s own
income and the income of the respondent, it may seem to the
Court to be reasonable.
adopts those principles and goes radical step further when it prescribes
that any such order can be made not only in favour of the wife but also in
favour of the husband. 1
The right of a wife is general for maintenance is an incidences of
the status of matrimony. The husband in general is under an obligation to
defray the wife’s cost to any proceedings and to provide her with
maintenance and support during the pending legal proceedings under
Hindu Marriage Act. Alimony strictly speaking is a maintenance
allowance given to a wife by husband on separation. It is well recognised
in civilised society that a wife having no independent means of
subsistence and maintenance is entitled to alimony pending matrimonial
proceedings and costs thereof. It is this principle which has been
incorporated in Section 24 of the Hindu Marriage Act. As a matter of
fact the section goes beyond the classical concept of the doctrine of
alimony inasmuch as it recognises the right even of a husband who has
no sufficient means for his support to claim alimony pending the
proceedings from a wife having means. 2
Object
The object of this Section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. 3
Very purpose of grant of interim alimony the amount of costs
under Section 24 of the Act is to see that the party who is helpless and
unable to maintain oneself during pendency of the proceedings and who
has no sufficient means for fighting the litigation, is, awarded interim
alimony. Thus this provisions of Section 24 of the Act go to show the
objection is to see that the litigation initiated by the other side could
properly be defended and interim maintenance could be given it’s the
applicant. Having once found by the trial court that the party is entitled
to such fund of alimony and not paid by the party against whom the order
is passed, has no other remedy for recovery of such amount or other
remedy and if the proceedings are not stayed as requested by the party in
whose favour the order is passed and which is not complied by other
party, the very object of Section 24 may be frustrated. The object of
Section 24 is no provide necessary funds to the needy spouse to
her husband during her lifetime. Section 18 (2) of that Act enumerates
the circumstances, under which, a Hindu wife is entitled to live
separately from her husband, without forfeiting her claim to
maintenance. Thus, the right of the wife to claim maintenance from the
husband, even in those cases falling under Section 18 (2) of the Hindu
Adoptions and Maintenance Act, when she is obliged to live separately
from her husband, is a statutory one. The method and manner of
enforcing this right, would necessarily depend upon the circumstances
obtaining in any particular case. It may be that in a given case, the wife
may resort to proceedings under Section 125. Cr.P.C. in the hope and
with the expectation that she would get quicker and speedier relief in
those proceedings. Equally, it may well be that a wife may resort to
proceedings before a Civil Court for the enforcement of such right.
Those, however, may at best be characterized as the adoption of different
methods for the enforcement of the right to maintenance. It is necessary
in this connection to remember that the right conferred under Section 24
of Hindu Marriage Act, is in the nature of a special right, arising on
initiation and during the pendency of the proceedings by one or the other
of the parties to the marriage, under the provisions of that Act. Under
Section 24 of the Hindu Marriage Act, the pendency of proceedings
under that Act, is an essential condition for the exercise of the right
either by the wife or the husband, as the case may be seek an order for
payment of the expenses of the proceeding and a monthly sum sufficient
for his or her support. It is thus clear that the right to claim maintenance
or litigation expenses under Section 24 of Hindu Marriage Act, is not
made available generally to the parties to a marriage, but only when a
proceeding between the spouses is pending under that Act, and in that
respect, the right conferred under Section 24 of that Act, is in the nature
of a special statutory right not in any manner outside the provisions
Section 24 of Hindu Marriage Act. The purpose behind Section 24 of
Hindu Marriage Act is that parties to a matrimonial cause should not take
undue and unfair advantage of a superior financial capacity to defeat the
rightful claims of a weaker party and the proceedings under Section 24
of that Act serve a limited purpose, i.e., during the pendency of
proceedings under that Act, to enable the weaker party to establish rights
without being in any manner hindered by lack of financial support. If the
special nature of the statutory right under Section 24 of that Act and its
purpose and borne in mind, it is at once clear that the enforcement of that
right, cannot in any manner be hedged in by a consideration of
proceedings otherwise initiated, either under Section 125, Cr.P.C. or
under the ordinary law. 1
Allegation of adultery
There is nothing in Section 24 to prevent a Court from taking into
consideration the conduct of the parties. But that is too spacious a
contention since at least in the original proceedings if this point is
conceded, it would require the Court to judge the merits of the rival
contentions of the parties when deciding an application for interim
alimony and if such an exercise is permitted the Court’s discretion would
be fettered merely by the nature of the allegations made in the petition
and would be compelled to examine the merits of the same at least prima
facie. 2
Simply because a suit for divorce is filed on the allegations of
adultery the wife will not be deprived off her right to get maintenance
pendente lite and expenses of proceeding to defend herself. It is true that
it suit for divorce is decreed after trial on the ground of adultery then
wife will not be entitled to get permanent alimony and maintenance
under Section 25 of the Hindu Marriage Act because adultery alleged
against her is proved. But at the stage of the proceeding under Section 24
of the Hindu Marriage Act, 1955 adultery is only alleged. There is large
Alternative forums
The application filed under Section 24 of the Hindu Marriage Act
cannot be rejected merely on the ground that an application earlier filed
under Section 125 Criminal Procedure Code for maintenance was
rejected. When the proceedings under Section 9 of the Hindu Marriage
Act are pending in trial Court, the wife, under Section 24 of the above
Act, is entitled to file an application for grant of maintenance of
pendente lite. 4
Appeal
An appeal will lie, against an interlocutory order if it is a
judgement. Clearly the order passed under Section 24 of the Hindu
Marriage Act is a judgment as it decides the question of maintenance
during the pendency of the suit and therefore, there is final adjudication
so far this question is concerned and an appeal lies against such an
order. 2
Court; and further that no appeal lies against such judgment or order
which is interlocutory. It cannot be said that the Legislature has created
an appellate from in 1984 against the orders passed under Section 24 of
the Hindu Marriage Act nullifying Section 28 of that Act contrary to the
object of enactment of the Act as stated in the Bill. Thus the objection of
the Stamp Reporter that the appeal is not maintainable under Section
19(1) of the Family Court Act, 1984 was upheld and appeal was
dismissed as not maintainable. 1
Award to children
The requirement of the husband or the wife would also include
expenses required for the maintenance of the child. The interpretation of
the provisions should not be too literal; but purposive and functional. As
the provisions contained in Section 26 would go to indicate, the court is
empowered to pass interim as it may deem just and proper with respect
to maintenance of minor children. Section 26 operates also during the
pendency of the proceeding under the Hindu Marriage Act. So, assuming
that the provisions contained in Section 24 stricto sensu do not authorize
grant of maintenance to child, Section 26 authorizes the grant of
pendente lite maintenance by way of interim order during the pendency
of the proceeding. , if the petition contains the averments, the court is
empowered to grant maintenance under Section 24 or under Section 24
read with Section 26 of the Act 2 which is as under:
‘Custody of children.— In any proceeding under this Act, the
Court may, from time to time, pass such interim orders and make
such provision in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible, and
may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions
with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim
orders in case the proceeding for obtaining such decree were still
pending, and the Court may also from time to time revoke,
suspend or vary any such orders and provisions previously made.’
1 Ravi Saran Prasad @ Kishore vs. Rashmi Singh, AIR 2001 All 227
(DB).
2 Mehendra Kumar Mishra vs. Snehlata Kar, I (1983) DMC 219
Orissa: 1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254.
Maintenance pendente lite—Burden of proof 53
Burden of proof
In proceeding under Section 24 of the Hindu Marriage Act the
Court is not obliged to press for burden of proof. The Court in the case
of Ravinder Kaur v. Makhan Singh, 1 following the principles laid down
in the previous cases held that there is an implied obligation in law upon
a party to produce the best evidence in its power and possession for
proper determination of the matter in issue before the Court. The Court
held as under:
It is a settled principle of law that a person who approaches the
Court has primary onus to prove the facts averred for the grant of the
relief prayed for. But it is equally true that the parties have to discharge
their respective onus in the proceedings under Section 24 of the Hindu
Marriage Act. Such proceedings are kind of summary proceedings and
are normally never put to regular trial. In these circumstances, it
becomes necessary that the parties to these proceedings must come
before the Court with clean hands and must discharge their respective
onus. Merely vague denial or their being no affidavit in support of the
case of either of the parties, cannot give advantage to that party in the
event any party withhold the best evidence which in normal course
he/she ought to have in power and possession the Court would be well
within its jurisdiction to draw adverse inference against that party. In
this regard, reference can be made to the case of. 2
It is expected from every litigant irrespective of the fact whether
he is seeking relief from the Court or not that he would state true and
correct facts. These is only implied but specific obligation upon every
party who approaches the Court to verify the facts true to the knowledge
and belief of the party specially in the cases of present kind where the
Court has to take prima facie view keeping in mind the urgency of the
matter regarding grant or refusal of maintenance. Primarily the onus has
to be discharged by respective parties in support of the averments made
in the application or reply as the case may be. Concept of heavy burden
of proof would be applicable during the trial where the parties have the
liberty to lead oral and documentary evidence in support of their case.
The Court would be well within its jurisdiction to draw adverse inference
against a party who actually or attempt to withhold the best evidence and
true facts from the Court with intention to frustration the claim of others
at this preliminary state of proceedings. 3
For determining the claim for maintenance pendente lite and the
expenses of proceedings as contemplated under Section 24 of the Act,
what ought to be kept in mind is that in case the applicant has no
independent means he or she is always entitled to the maintenance and
expenses, unless good cause is shown to deprive him or her of it. The
good cause for depriving an applicant for the maintenance and expenses
of the proceedings could be the availability of the an assured
independent income derived from the property, service, occupation, or
other sources which may satisfy the genuine needs providing support to
him or her keeping in view the status of the family to which he or she
belongs and not the income of the wife’s parents or other relations which
cannot be taken into account so as to constitute good cause for not
granting interim maintenance and expenses of the proceedings.
There may be cases where the character and gravity of the
conduct is such which may be found repugnant to the concept and the
institution of marriage and it may be wholly unjust to ignore them while
considering the question of releasing or withholding the benefit
contemplated under Section 24 of the Act, but it all depends on the facts
of each case and cogent reasons have to be recorded for withholding the
grant of the benefit secured under Section 24 of the Act. 1
Challenge in Appeal
Section 24 of Hindu Marriage Act, 1955 is a provision for
temporary alimony and does not entitle a Court to pass a decree and a
decision given under Section 24 has been described as an order. Similar
phraseology has been used in the language given in Ss. 25 and 26. There
is, however, a difference between Section 24 and Ss. 25 and 26. An order
passed under Section 24 is of a temporary nature and binds the parties so
long as the matter is pending at the trial. Section 25 provide for
permanent alimony and maintenance whereas Section 26 deals with
custody of children. The Parliament having thought that orders provided
for in Ss. 25 and 26 were of a more serious nature than that contemplated
by Section 24, conferred rights of appeal against orders passed under
them. It did not make any provision of appeal against an order passed
under Section 24 of the Act. 2
No appeal lies from an order under Section 24 of the Hindu
Marriage Act. An appeal is a creature of statute. This appeal is
Challenge in revision
The expression, or the word, ‘proceeding’ as used in Section 115
of Civil Procedure Code, 1908 has to be given the same meaning as in
the opening part of Sub-section (1). It follows that ‘the other proceeding’
must be an original proceeding and not merely a proceeding in a suit or
any other original proceeding. 1 The proceeding commenced with an
application under Section 24 was a proceeding in the matrimonial
proceeding or the matrimonial suit for divorce. The proceeding under
Section 24 was not by itself an original proceeding. It was accordingly
contended, and I think rightly, that this Court is precluded from varying
or revising the order sought to be revised in the present case unless it
could be shown under clauses (b) of the proviso that the order, if allowed
to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made. 2
An order granting interim maintenance is not an interlocutory
order and revision there against is not barred under Section 397(2) of the
Code. 3
it to the proceedings under the Act in view of Section 21. However Order
11 has full application to the proceedings under Section 24 of the Act. 1
Compliance of order
To get the order complied with the inherent power can be
exercised by stay of the proceeding initiated by the defaulter or by
striking out his defence where the proceeding has been initiated by the
party in whose favour the order is passed or to dismiss the application of
the defaulter initiating the proceeding. The normal rule of restraint to
exercise inherent power in cases of availability of alternative forum
would not be attracted to realise the money as per the order for pendente
lite maintenance and litigation expenses, since the same is to be paid to a
person having no sufficient means. Execution of the order for the same
takes time in view of the procedure provided under O. 21, C.P.C. and
without the maintenance and litigation expenses, the party in whose
favour the order is passed does not get a fair chance to prosecute or
defend the proceeding as the case may. Where a party does not get
adequate opportunity natural justice is violated. Therefore, the court
comes to the rescue of that person in exercise of the inherent power.
However, the wider the power, the greater should be the restraint. Court
having wide power, therefore, should carefully consider the facts and
Computation
Maintenance depends “upon a gathering together of all the facts
of the situation. The amount of free estate, the past life of the married
parties and the families. A survey of the condition and necessities and
rights of the members. On a reasonable view of change of circumstances
possibly required in the future — Regard being of course had to the scale
and mode of living and the age, habits and wants and class of life of the
parties. 4
Conclusion of proceedings
The interim order passed under Section 24 could be passed in
pending proceedings and once the proceedings come to an end, the order
under Section 24 can no longer be passed. 1
The proceedings for maintenance pendente lite have to be
concluded before the main petition is decided. However, the husband can
snap the main proceedings while the application for fixation of
maintenance pendente lite and litigation expenses is still pending either
by absenting from the proceeding in case he is the applicant in the main
case and by getting the same dismissed in default or where the main
petitioner is filed by the wife, by making a statement confessing
judgment in favour of the wife. In he first case, when the husband absent
in the petition, where he is the applicant, the Court will have no option
but to dismiss the petition in default but that would not mean that he can
take away the right of the wife and the child given under Ss. 24 and 26 of
the Act to continue with those applications and to have the amount
determined. Similarly, if the husband is respondent in the main petition
and he confesses judgment in favour of the wife, then two courses can be
open to the Courts. One would be to dispose of the main petition on the
consent of the husband and grant the decree to the wife but to continue to
proceed with the petition under Ss. 24 and 26 of the Act for fixing
maintenance pendente lite. The other would be if it the Court comes to
the conclusion that the petition under Ss. 24 and 26 of the Act cannot
continue if the main petition stand disposed of, then to keep the main
petition in abeyance and first to decide the petition under Ss. 24 and 26
of the Act for granting maintenance pendente lite and litigation expenses
and thereafter to decide the main petition on the concession of the
husband. If the second course is open to the Court to follow, it would
clearly mean that the liability of the husband to pay maintenance
pendente lite continue so long as the petition under Ss. 24 and 26 of the
Act is pending . It has been held that following the first course is neither
illegal nor against any provision of the statute and if that course is
followed by the Courts then there is no justification for not awarding
maintenance pendente lite to the wife even beyond the conclusion of the
main petition till proceeding under Ss. 24 and 26 of the Act are
finalized. 2
1 Rajendra Singh vs. Patwant Kaur, II (1982) DMC 169 Raj; Nand
Kishore Kapoor vs. Shanti Kapoor, II (1982) DMC 181 All.
2 Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981
Hindu LR 345: ILR (1981) 2 P&H 400.
60 Law of Maintenance
1 Nirmala Devi vs. Ram Dass, AIR 1973 P&H 48: 1972 Cur LJ 34.
2 Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981
Hindu LR 345: ILR (1981) 2 P&H 400.
3 Dashrath vs. Saroj, I (1989) DMC 222 MP.
Maintenance pendente lite—Conduct of parties 61
Conduct of parties
The Court normally consider it prudent to adhere to the principle
that a marriage de facto carries the right to alimony pendente lite; but
this principle of matrimonial law has necessarily to be considered in the
light of the attending circumstances, when the Court exercise its
discretion as to whether the wife should be granted or not alimony
pendente lite and expenses for litigation. The conduct of the parties
cannot be ignored by the Court while passing the orders under Section 24
of the Hindu Marriage Act. In a case where the wife has brought
cohabitation to an end by such misconduct for which the husband is not
be blamed, the Court may well refuse to grant alimony and expenses for
litigation pendente lite. 2
In the above case it was found that the wife’s claim for restitution
of conjugal rights has already been dismissed by the trial Court and the
appeal against the same has also been dismissed, after upholding the trial
Court’s finding that the wife is leading a life of adultery by having
regular illicit connections with Dhanraj Hirkane. In these circumstances
it was held that the misconduct on the part of the wife, having thus been
established, she has obviously no case for her claim for alimony and
litigation expenses pendente lite. 3
It is within the discretion of the Court to make an order for
pendente lite maintenance, and merely because two of the conditions,
namely, the wife or the husband, as the case may be, has no independent
income sufficient for her or his support and necessary expenses of the
proceedings, and the other spouse has sufficient means, are satisfied,
then it is not necessary for the Court to order payment of maintenance
pendente lite and expenses of the proceedings. Therefore, though it is not
specifically provided that the conduct of the applicant for maintenance
pendente lite and expenses of the proceedings is also to be taken into
consideration, but the fact that the discretion of the Court to make an
order or not to make an order goes to show that the Court has to take the
conduct and the other circumstances also into consideration while
disposing of the application under Section 24 of the Act. 4
Consent order
When the order clearly speaks that it was passed on the basis of
the statement given by the parties at the time of hearing and it was found
that the learned Trial Court rightly exercised its discretion in awarding
the interim maintenance from the date of the order, interference was
declined. 1
1 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
64 Law of Maintenance
Delay in disposal
It is expected of the Matrimonial Court to decide such application
on priority basis at its earliest opportunity on the basis of the affidavits
and counter affidavits as far of possible so as to cut short the time.
However, exception to above rule cannot be ignored where parties found
guilty of protracting the proceedings by any manner and delay caused in
deciding application on account of such a party, in such a case Court can
certainly order for payment of maintenance amount from the date of
order. 4
However, where the application is kept pending and the party
making application is not responsible for protracting the proceedings. In
such cases Court has to bear in mind two maxims of equity which are
well settled, namely. “Actus Curiae Neminem Gravabit” An act of the
Court shall prejudice no one. In Broom’s 5 this maxim is explained that
this maxim was founded upon justice and good sense; and afforded a safe
and certain guide for the administration of the law. The other maxim is
“Flat Justitia”, justice be done and that justice should be fair causing
prejudice to no one. 1
Where a litigation is prolonged unduly, either on account of the
conduct of the Opposite Party, on account of the heavy docket in Court
or for other unavoidable reasons, it would be just and contrary to the
very purpose of the provision to postpone the effectuation of the order to
the date of the order. Such postponement deprives the claimant of the
benefit of the fruits of a decree which he or she could have obtained
through a Civil Court. Looking at the matter from this perspective also,
there is justification to say that ordinarily the claimant who seeks an
order for maintenance under Section 125 of the Code shall obtain the
relief from the date when she or he approached the Court i.e. the date of
application and only where there are circumstances justifying a contrary
view, it can be postponed to the date of the order. 2
When inspite of delay, the learned Magistrate did not pass and
order for interim maintenance. This is a mockery of the legislative
intention to provide a summary, quick and comparatively cheap remedy. 3
Denial of marriage
The object of this Section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. Exercise of power under
this section does not appear to be dependent on the defence raised by the
opposite party. Even in cases where the factum of marriage is denied by
the opposite party the court has jurisdiction to determine prima facie the
factum of marriage on the basis of documents and affidavits that may be
placed before the Court. The passing of an order under this Section
further cannot be postponed till the final determination of the
relationship of husband and wife. If it be so the purpose of this section
would be frustrated. In a petition for restitution of conjugal rights if the
defence taken is that there was no marriage between the parties, and the
petitioner-wife had no means to support her or to conduct the legal
proceedings she would be without any remedy. In proceedings for
restitution of conjugal rights the factum and validity of marriage is
generally denied so that the party approaching the Court for relief may
be harassed and on account of harassment, such party may not pursue the
remedy. I am therefore, of the opinion that even if the factum or validity
of the marriage is denied, the Court exercising jurisdiction under the Act
has power to award maintenance and litigation expenses to the applicant
i.e. the wife or the husband after prima facie determining whether there
was marriage age or not. 1
To allow a defendant the bald plea of denial of status in the face
of letters written by the defendant, in the face photograph showing the
plaintiff and the defendant in intimate relationship would be to allow a
prima facie case to be thwarted at the hands of a designing defendant.
The device of a denial for the sake of suggesting that the Court has no
jurisdiction to grant interim maintenance is to strike at the root of
administration of justice and more so in a case where the plaintiff who
claims to have lived with the defendant as husband and wife for years is
now deserted by the defendant and is treated by the defendant as a
woman without any status. It would allow injustice to be perpetrated by
mere deliberate act of denial by the defendant. 2
Determination of amount
The wife moved an application under Section 24 of the Act for
fixation of maintenance pendente lite on the ground that she had no
source of income whereas the husband was earning more than Rs. 1500/-
per mensem. She claimed maintenance allowance pendente lite at the rate
of Rs. 500/- per mensem and litigation expenses of Rs. 2,000/-. The
husband also moved an application under Section 24, of the Act against
the wife on the ground that the wife was doing embroidery and tailoring
work and was earning Rs. 2,000/- per mensem. He was unemployed and
was dependent upon his poor parents. He claimed maintenance allowance
pendante lite at the rate of Rs. 500/- per mensem and Rs. 2500/- as
litigation expenses. The Matrimonial Court, on appraisal of the material
placed before it, came to the conclusion that the wife had no source of
income, whereas the husband was doing the business of radio and T.V.
technician and was earning Rs. 1000/- per month. He fixed the
maintenance pendente lite for the wife at rate of Rs. 300/- per mensem
and also directed the husband to pay Rs. 1100/- as litigation expenses to
her. The order was affirmed. 3
Discretion of Court
Wide discretion is conferred on the Court to pass order for
maintenance pendente lite and costs of the proceeding. But the discretion
is judicial and not arbitrary or capricious. The initial words of the
Section “in any proceeding under this Act” and the words “such sum as,
income of the respondent, it may seem to the Court to be reasonable” are
clearly suggestive of the wide amplitude of the discretionary power
conferred on the Court. It is also clear from the Section 24 that the
amount of maintenance that one spouse may be ordered to pay to the
other must be such as appears to be reasonable to the Court in exercise of
that discretion and the Court in doing so must have regard to the
petitioner’s own income and the income of the respondent. Any decision
on the subject of alimony under the Section must necessarily turn on the
facts and circumstances of each case and no fixed rules can be expected
on the question. While determining the quantum of maintenance the
Court has not only to take into consideration the income of the applicant
and the respondent as provided in the Section, but also relevant facts and
circumstances in the case including the conduct of the parties. In its very
nature the quantum of interim maintenance cannot be taken to be a fixed
amount which. If determined once, can in no circumstance be altered.
The change in the circumstances relevance to the matter may call for a
revision of the order. No doubt Section 24 unlike Section 26 does not
expressly provide that the Court may pass orders for interim
maintenance/expenses of the proceeding from time to time. But there is
no express or implied bar in the provision for exercise of such
jurisdiction in a deserving case. Therefore, it will neither be legal nor
just and proper to limit the wide discretionary power conferred on the
Court by holding that the Court has no power to modify or vary its order
awarding interim maintenance even on proof of changed circumstances. 1
Spouse who is claiming decree in his/her favour, if by some
reasons or the other, could not file such application along with the suit,
may file application subsequently claiming maintenance pendente lite
from the date of institution of the suit and the Court in its discretion may
grant maintenance pendente lite payable from the date of the institution
of the suit. But, the respondent cannot enjoy the same benefit claiming
maintenance pendente lite from the date of institution of the suit.
However, in the exercise of judicial discretion, Court may grant
maintenance pendente lite in favour of the respondent from the date of
1 Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491
Orissa.
72 Law of Maintenance
the date of application, from the date of order or from the date of
institution of the suit. It however, leaves to the discretion of the Court. 1
Disputed marriage
The same expression “wife” and “husband” have been used in
Section 24 of the Act and it is apparent that those expressions in that
section on a parity of reasoning cannot be said to have been used in any
difference sense than in section 25(1) of the Act. The expressions are
wide enough to include any wife or husband who has brought a
proceeding in the Court under the Act. In such case though the husband
claimed that the wife had been divorced by writing made in May 1974,
the wife denied the factum and validity of the divorce and that obviously
would be an issue to be tried in the proceeding which the wife has
brought before the relief can be granted to her. That, however, is a
matter to be decided upon the merits of the case and as long as it is not
decided, the proceeding cannot be terminated. Section 24 of the Hindu
Marriage Act, makes provision for the interim alimony obviously in
respect of such cases where pending the decision some provision has to
be made for maintenance pendente lite and expenses of the proceedings. 3
1 Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H
298: (1984) 86 Pun LR 485: AIR 1984 P&H 332.
2 Ellikkal Kuniyil Raghavan vs. K.K. Saroja, AIR 1987 Kerala 151:
1986 Ker LJ 1127: (1987) Ker LT 376: 1987 Mat LR 185: (1987) 2
DMC 408.
3 Sou Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay.
Maintenance pendente lite—Distinction with alimony 77
valid or subsisting, just as the word “marriage” has been used in the Act
to include a purported marriage which is void ab initio. 1
Duration of payment
The marginal note of the section is very significant. It is
“maintenance pendente lite and expenses of proceedings”. The section
expressly says that the order of maintenance which the Judge makes
under Section 24 of the Act is to last only for the period of the
proceedings. The words “where in any proceedings under this Act” and
the phrase “during the proceedings” clearly show that it is a temporary
order the lite or which is coterminous with the proceedings. If there is no
proceeding before the Judge, Section 24 cannot be invoked. The question
is what is the meaning of term “proceedings” as used in Section 24. 3
Section 30 of J&K Hindu Marriage Act is a facsimile of Section
24 of the 1955 Act. This section makes maintenance payable to the wife
or the husband as the case may be, during the proceeding, without further
specifying the point of time during such proceeding from which the same
is payable. Obviously, therefore, it does not empower the Court to grant
maintenance either before the commencement of the proceeding, or after
the same has ended. There is no warrant for the proposition that
1 Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
80 Law of Maintenance
Duty of husband
A person is bound to maintain his wife is she if unable to
maintain herself. In cases of desertion or abandonment a wife may seek
maintenance allowance from the Court, but so long as that has not been
granted she will definitely try to earn livelihood for her sustenance. It
appears that Vidhyabai was forced to work as she was not being
maintained by her husband. It also appears that learned Sessions Judge
has taken into consideration this fact also and that is why lesser amount
has been granted in her favour. This is also not but of place to mention
here that while granting maintenance allowance if it is found that a
person seeking such allowance is having some income & that is not
sufficient, the person who is liable to maintain can be directed to
compensate to the extent of insufficiency. 3
under Section 24 of the Act, was not complied with, by the husband, the
appeal filed by him could be dismissed by the court, but since the
original petition was filed by the wife and the same was dismissed by the
trial court, in appeal it could not be allowed simply on the ground that no
maintenance was paid by the husband. 1
Enforcement of order
No doubt, wife can file a petition under O. 21, R. 37, Civil
Procedure Code, 1908 for the recovery of this amount and the husband
can be hauled up under the Contempt of Court also for disobedience of
the aforesaid Court’s order, but Section 24 of the Act empowers the
matrimonial Court to make an order for maintenance pendente lite and
for expenses of proceedings to a needy and indigent spouse. If this
amount is not made available to the applicant, then the object and
purpose of this provision stand defeated. Wife cannot be forced to take
time-consuming execution proceedings for realising this amount. The
conduct of the husband amounts to contumacy. Law is not that powerless
as to not to bring the husband to book. If the husband has failed to make
the payment of maintenance and litigation expenses to the wife, his
defence can be struck out. 3
In order to obtain the enforcement of the order passed under
Section 24 of the Act through the process of execution, the parties would
be required to wait, in certain cases, till a number of years. The question
1 Sukhwinder Kaur vs. Harnek Singh, AIR 1988 P&H 208: (1988) 24
Reports 51: (1988) 1 Hindu LR 432: (1988) 1 DMC 476: (1988) 1
Cur LJ (C & Cri) 151: 1988 Marriage LJ 424.
2 K.A. Singh vs. A. Ningoi, AIR 1965 Manipur 10.
3 Bani W/o Parkash Singh vs. Parkash Singh, AIR 1996 P&H 175:
See also Swarno Devi vs. Piara Ram, 1975 Hindu LR 15: Gurdev
Kaur vs. Dalip Singh, 1980 Hindu LR 240: Smt. Surinder Kaur vs.
Baldev Singh, 1980 Hindu LR 514: Sheela Devi vs. Madan Lal
1981 Hindu LR 126: Sumarti Devi vs. Jai Parkash, 1985 (1) Hindu
LR 84: 1996 (2) Civil Court C 26: 1996 (1) Hindu LR 698: 1996
Marri LJ 549: ILR 1997 (1) P&H 118: 1996 (113) Pun LR 219: 1996
(2) RRR 120: 1996 (2) LJR 416: 1996 (3) ICC 114.
Maintenance pendente lite—Enforcement of order 83
is whether this particular procedure would enhance the object of the Act.
Matrimonial proceedings by their very nature are expected to the
expeditious because there would be absolutely no point in giving redress
to a party in matrimonial proceedings after a number of years which
would not stop the parties ageing. Asking a party to the matrimonial
proceeding, to take resort to execution proceedings under Section 28 for
the enforcement of order of interim alimony or expenses pendente lite,
would be obviously resulting in frustration of justice. 1
The same can be said as regards the starting of contempt
proceedings, because, contempt proceedings also are likely to take
sufficiently long time for their culmination and during that time the
original petition would be required to be stayed. Even thereafter it is
doubtful whether in contempt proceedings the amount ordered to be paid
under Section 24 of the Act would be paid or not. 2
Section 24 of the Act enables the court to pass an order directing
payment of maintenance pendente lite and expenses of proceedings by
one spouse to the other. Such an order is enforceable as a decree under
Section 28-A of the Act. Since the aforesaid mode of enforcement may
not, prove effective so as to enable the party in whose favour the order
has been passed to avail the benefits of the said order during the
pendency of the proceedings, the court in exercise of its inherent powers,
can pass an appropriate order for securing the compliance with an order
passed under Section 24 by the defaulting party. In case the defaulting
party happen to be the petitioner or the appellant the court may pass an
order staying further proceedings till the order passed under Section 24
is complied and if the default is persistent it may dismiss the petition or
appeal. In cases where the defaulting party is the respondent the court
may refuse to hear it till the order passed under Section 24 of the Act is
duly complied and may strike off the defence of the defaulting party. But
the appellate court would not be justified in allowing the appeal on the
ground that the respondent has failed to comply with the order passed
under Section 24 of the Act. For the purpose of allowing the appeal the
appellate court has to set aside the judgment of the court below and this
can be done only if the appellate court reverses the findings recorded by
the trial court. In view of the non-compliance of the order passed under
Section 24 of the Act by the respondent the appellate court may refuse to
hear the respondent and may proceed to hear the appeal ex parte and
allow the appeal if the appellate court is satisfied that the judgment of
1 Jai Singh vs. Khimi Bhiklu, AIR 1978 HP 45 (FB): 1978 Sim LC
227: ILR (1978) Him Pra 83.
2 Jai Singh vs. Khimi Bhiklu, ibid.
84 Law of Maintenance
the lower court cannot be sustained. But the appellant cannot ask for the
appeal being allowed only because the respondent has failed to comply
with the order passed under Section 24 of the Act. 1
Entitlement of children
A bare perusal of Section 24 of the Act reveals that it does not
envisage the grant of interim maintenance allowance of the minor
children. Section 26 of the Act specifically deals with the custody of
children, their maintenance and education. The ambit and scope of
Section 24 and 26 of the Hindu Marriage Act are quite different. Section
26 specifically provide determination by the Court with regard to the
custody, maintenance and education of minor children, consistently with
their wishes. When admittedly no such enquiry was conducted by the
Court, the grant of maintenance for the upkeep of children under Section
24 of the Hindu Marriage Act is wholly unwarranted. 3
Similarly the view of Orissa High Court is also that the award of
maintenance for a child is not within the purview of S. 24 of the Hindu
Marriage Act, 1955. 4
However the Madhya Pradesh High Court has held that the need
of the child is as much the need of the mother, because a mother is not
expected to neglect the need of the child and is on the contrary expected
to meet the need of the child even at the expenses of her own
maintenance. Therefore while granting maintenance under Section 24 of
the Hindu Marriage Act, 1955 to a wife not only her own need for
maintenance of herself would be considered but if she had a child to look
after, need of the child shall also be taken into account. 1
Simply because the child is also living with the mother, it cannot
be said that she has to be deprived of the maintenance. The father is
bound to maintain his daughter wherever she is. 2
Section 24 of Hindu Marriage Act, 1955 makes provision for
granting maintenance pendente lite to a party who has no independent
income sufficient for his or her support. This section does not provide
for granting maintenance for the children. Section 26 of the said Act
provided for interim orders from time to time as also for making
provision in the decree with regard to custody, maintenance and
education of minor children consistently with their wishes. Section 26,
therefore, empowered the Court to provide for the maintenance of minor
children. It provided for maintenance both pendente lite as also after the
passing of the decree. Therefore the order granting separate maintenance
to each of the three adult children had clearly traversed beyond the scope
of Section 24 and Section 26 of the said Act. 3
The Calcutta High Court has also held that it is not open to the
learned Judge under the statute, as it stands, or, under the relevant law,
to impose a condition on an applicant for alimony that her said
application will not be heard unless she files her written statement. The
statute nowhere permits such a course, which would be opposed to the
equities of the instant case. 1
Form of order
An order which does not contain either the facts or the grounds
on which it is based is no order in the eye of law. 2
When the order is not supported by any reason and does not
discuss the pros and cons of the rival versions of the parties relating to
the quantum of income of the husband, the same is liable to be set aside. 3
Forum of appeal
In respect of Madras City Civil Court it has been held that under
section 4 of the Madras City Civil Court Act, the City Civil Court shall
consist of the Principal Judge and such number of Additional or
Assistant Judges as the State Government may from time to time appoint,
and subject to the provisions of Section 15, each of the Judges may
exercise all or any of the powers conferred on the court by this Act or
any other law for the time being in force. By virtue of this provision,
even without a notification by the Government, any Judge of the City
Civil Court, whether he be the Principal Judge or the Additional Judges
or the Assistant Judge, would be competent to entertain an application
under the Hindu Marriage Act. But the right of appeal from the order
passed by a Judge of the City Civil Court would be governed by Section
15 of the Act. Had the petition been disposed of either by the Principles
Judge of the City Civil Court, or by the Additional Judge there of, an
appeal would lie straightway to the High Court. if, on the other hand, it
is disposed of in this case, by an Assistant Judge of the City Civil Court
an appeal shall lie only to the Principles Judge, especially in a
proceeding where the amount or value of the subject-matter does not
exceed Rs. 5000. 4
1 Latika Ghosh vs. Nirmal Kumar Ghosh, AIR 1968 Calcutta 68:.
2 Shakuntala vs. Amar Nath, AIR 1978 P&H 32: 79 Pun LR 405(1):
1977 Hindu LR 658.
3 Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383.
4 B. Balaji Singh vs. B. Raj Kumari, AIR 1972 Madras 278: 85 Mad
LW 16: (1972) 2 Mad LJ 53.
Maintenance pendente lite—Jurisdiction of Family Court 87
Grant in Revision
The Hindu Marriage Act, 1955 does not directly provide for an
appeal or a revision from orders passed in proceedings under it. Section
21 of the Act provides that subject to the other provisions contained in
the Act and of the rules made by the High Court all proceedings under
the Act shall be regulated, as far as may be, by the Code of Criminal
Procedure, 1908. Section 28 provides that all decrees and orders made by
the Court in any proceeding under this Act shall be enforced in like
manner as the decrees and orders of the Court made in the exercise of its
original civil jurisdiction are enforced, and may be appealed from under
any law for the time being in force. Appeals from decrees and orders
made under the Act lie under the Code of Civil Procedure. Likewise,
revisions also lie against orders made in proceedings under the Act under
the Code of Civil Procedure. It is not disputed and there is good
authority for the same that relief under Section 24 can be granted in an
appeal from a decrees or order passed under the Act. I can see no reason
why then relief under Section 24 cannot be granted in a revision against
an order passed in a proceeding under the Act. The words “in any
proceeding under this Act” have been used in a wider sense to include all
proceedings arising out of orders passed in petitioner filed under the Act.
To hold otherwise would defeat the very purpose of Section 24.
Therefore, it is competent for High Court to grant relief on an
application under Section 24 even in a revision filed under Section 115,
Civil Procedure Code, against an order passed in proceedings under the
Act. 1
1 Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110.
2 Arjun Dev vs. Jai Kumar, II (1983) DMC 387 Delhi.
88 Law of Maintenance
Jurisdictional issue
The wife is entitled to have her application under Section 24 for
award of expenses to be considered before the issue of jurisdiction is
decided. She is entitled to have her expenses for the hearing on the
question of jurisdiction. 2
Litigation Expenses
Normally, expenses of the proceeding would include
remuneration to the Lawyer, court-fees, stamp and paper, clerical
expenses, cost of stationeries, expenses to be incurred for journey from
the place of residence for instructing the lawyer and attending the court
for summoning the witnesses to depose in court and their expenses and
for obtaining and proceeding and documents in support. Besides these
normal expenses, there may be special nature of expenses which can also
be considered on the availability of materials on record. But when no
material is available on record, there is no scope for the trial court to
arbitrarily fix the expenses of the proceeding. 1
Meaning of “Maintenance”
Heading of Section 24 of the Hindu Marriage Act, 1955 is
“Maintenance pendente lite and expenses of proceedings”. The section,
however, does not use the word “maintenance”, but it appears that the
words “support” and “maintenance” are synonymous. “Support” means
“to provide money for a person to live on”, like “he supports a family” or
“he supports his old mother”. Maintenance is “an act of meaning”, i.e. to
support with money. For example, “he is too poor to maintain his
family”. 2
Meaning of support
Section 24 of Hindu Marriage Act, 1955 uses both terms,
“Maintenance” in the margin and “Support” in the body of the section.
The word “support” is doubtless one of the most elastic in the language.
“Maintenance” means the act of maintaining, and denotes the regular
supply of food, clothing and lodging, the provisions of the necessaries
and the conveniences of life. These will in each case depend in part on
the standing of the parties, their wealth and the environment to which
they in their married state have been accustomed, as every case will be
different and no case may be decided except upon its particular facts. 3
Modification of order
Section 24 of the Hindu Marriage Act, 1955 vests a wide
discretion in a Court in the matter of fixation of pendente lite
Multiple remedies
An order under Section 125 of the Code for maintenance and an
order under Section 24 of the Hindu Marriage Act, are distinct orders in
separate proceedings. It is not open for Court under Section 125 to grant
set off any amount paid by the husband to the wife or deposited in any
Court against the substantive order passed under Section 125 of the
Code. Order under Section 24 of the Hindu Marriage Act is for interim
alimony which would terminate on termination of the proceedings. Order
under Section 125 of the Code is substantive order which can be
terminated or altered only in the light of the provisions under Section
125(3) or under Section 127 of the Code. Mere passing of an order under
Section 24 of the Hindu Marriage Act for interim alimony would not
operate as set off against the order of maintenance under Section 125 of
the Code. There can be no difficulty on the part of the wife for pursuing
remedies under both the provision simultaneously.
Necessity of affidavit
Omission to comply with the requirements of rules provided for
presentation of plaints like absence of verification, does not affect
jurisdiction of the Court. Therefore, absence of affidavit of the applicant
in her application for interim maintenance does not affect the initial
jurisdiction of the Court. With these observations the wife was grant
further opportunity to regularize the matter by giving an affidavit in
support of her application. 2
Necessity of reconciliation
An order passed under Section 24 of the Hindu Marriage Act,
1955, could not be termed as illegal only because the court did not make
any endeavour to bring about a reconciliation between the parties. The
provision of Section 23(2) are not absolute in nature. While casting a
duty upon the court to make every endeavour to bring about
reconciliation between the parties a discretion is left to the Court, by the
use of the qualifying phrase, ‘where it is possible to do consistently with
the nature and circumstances of the case’. Similar provision is made in
Order XXXII-A of Code of Civil Procedure for the suits relating to
matters concerning family. An attempt to bring about a reconciliation is
always laudable but failure to do so, before granting maintenance
pendente lite, will not vitiate the order, passed under Section 24 of the
Non-compliance
The effect of non-compliance of the order passed on the
application under Section 24 of the Hindu Marriage Act for the grant of
maintenance pendente lite is that the defence is to be struck off. 4
Pendency of proceedings
A proceeding under Order 9 Rule 13 of the Civil Procedure Code
is a proceeding under the provisions of the Hindu Marriage Act if the
proceeding is initiated for setting aside a decree obtained ex parte in a
proceeding under the said Act. Accordingly, an application under Section
24 of the Hindu Marriage Act is maintainable in such a proceeding. If
such an application is filed it is open to the Court to decide the same on
merit but it cannot be held that such application cannot be disposed of
till the proceedings under Order 9 Rule 13 terminates and the decree is
set aside. 1
This question was also considered with slightly different line of
reasoning by Punjab and Haryana High Court 2 with following
observations:
‘The challenge to the impugned order was founded upon the
wholly untenable premises that an application under O. 9, R. 13
of the Code of Civil Procedure for setting aside an ex parte
decree for divorce, could not be taken to be proceedings under the
Act so as to extend to it the applicability of the provisions of
Section 24 of the Act. The argument being that while seeking and
obtaining a decree for divorce, be it ex parte or after contest,
would be “proceedings” under the Act, an application for setting
aside such a decree would be one under the Code of Civil
Procedure and thus not one under the Act, and therefore, the
provisions of Section 24 of the Act, would not be available in
respect thereof. There is a patent fallacy in this contention
inasmuch as, the provisions of the Code of Civil Procedure, in the
Hindu Marriage Act, 1955, are there merely to regulate the
proceedings therein and not as substantive law separate and
distinct from it, as would be apparent from a plain reading of
Section 21 of the Act.
Further, the object and rationale of Section 24 of the Hindu
Marriage Act, 1955 is to provide against lack of financial means
operating to the detriment of a party to proceedings under the
Act. In other words, to obviate against the financial handicap of a
party to the litigation. Seen from his angle too, the provisions of
Section 24 of the Act cannot be construed to take an application
for setting aside of an ex parte decree under the Act as outside
the purview thereof. To hold otherwise, could mean grave
prejudice to an innocent party against whom an ex parte decree
has been wrongly passed inasmuch as lacking the financial means
to challenge such an ex parte decree, it may be constrained to
suffer it. Nothing could have been further from the intention of
the legislature in this behalf.’
Section 21 of the Hindu Marriage Act, engrafts the relevant
provisions of Code of Civil Procedure into the Act for regulating the
procedure, and independently of Section 21 of the Civil Procedure Code
would have no application. Therefore, though the procedure for setting
aside the ex parte decree would be regulated by the Civil Procedure
Postponement of Application
The jurisdiction to pass an order under Section 24 of the Hindu
Marriage Act, 1955 arises as soon as any proceedings are instituted
under the Act in the court and lasts so long as the proceedings are
pending. The conditions circumscribing the exercise of jurisdiction are
that the applicant should not have any independent income sufficient for
her or his support or necessary expenses of the proceedings. If the said
condition are satisfied, the Court has jurisdiction and power to order the
opposite party to pay expenses of the proceedings and monthly
maintenance of such sum as may be found reasonable by the court. This
provision is wider and different from the provisions contained in Section
25 of the Act, which deals with permanent alimony and maintenance.
The object of Section 24 of the Act is to provide a monthly income and
expenses of the litigation to an indigent spouse to enable it to prosecute
or defend the proceedings under the Act and the law sees that nobody is
disabled from prosecuting or defending the matrimonial case by
starvation or lacks of funds. 1
Therefore when the question of facts between the parties are
seriously disputed and it will take some time to be decided and in fact,
this is a major issue disputing the marriage had been raised by the
respondent which could, be decided along with the whole petition and
the trial cannot take place piecemeal, it was held that even to fight out
the aforesaid issue, the appellant is entitled to a decision of her
application under Section 24 of the Act and the Court below had acted
with material irregularity in postponing the orders on this application till
the decision of the issue of the legality of the marriage which will
virtually terminate the proceedings. 2
1 Arti Singh vs. Lt. Co. Kanwar Pal, AIR 1977 Delhi 76: 1976 Hindu
LR 646: (1976) 12 Delhi LT 169: (1976) 78 Pun LR (D) 268.
2 Arti Singh vs. Lt. Co. Kanwar Pal, ibid.
3 Chigurupati Sambasiva Rao vs. Chigurupati Vijayalakshmi,
1994(1) CCC 458 (AP).
98 Law of Maintenance
1 Arya Kumar Bal vs. Ila Bal, AIR 1968 Calcutta 276.
2 M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP).
Maintenance pendente lite—Power of Appellate Court 99
1 Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP:
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L
1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam
Chaturvedi, II (1984) DMC 53 Delhi.
2 AIR 1961 Rajasthan 51.
3 AIR 1984 NOC 138 (HP).
4 Thankamma vs. Kuttan, II (1984) DMC 440, Kerala.
100 Law of Maintenance
rehearing. The object behind the aforesaid principle is two fold: firstly,
to see whether the judgment given by the trial court was right when it
was given: and secondly, to mould the relief by taking into account the
events that have happened after the judgment came to be passed by the
trial Court. A proceeding under Section 30 is an independent proceeding,
which has nothing to do with the merits of the main case. Correctness of
the judgment of the trial Court in the main case with reference to the
point of time when it was passed cannot be, therefore, determined in
appeal in the light of the findings recorded by it in the application under
Section 30. Nor has any subsequent change in the financial position of
the parties anything to do with the moulding of the relief in the main
petition come to an end, right of the party to enforce the order passed in
its favour under S. 30 also ceases, in the sense, that it cannot claim
maintenance for a period posterior to the decision of the main petition.
This, however, does not mean that even if proceedings in the main
petition have come to an end, the party in whose favour an order under
Section 30 have been passed, cannot execute the same for recovery of the
amount due till the date of the final decision of the main petition. Nor
does the decision of the main petition take away the power of the Court
to dispose of on merits the application made to it under Section 30
during the pendency of the main proceeding. 1 There is amply authority
for the aforesaid view. 2
Power of Court
The ground of maintenance pendente lite and expenses of the
proceeding does not depend on merits of the case nor the jurisdiction of the
Court is controlled by the defences raised by the respondent which is the
substantive matter before the Court. It is, however, circumscribed only of
the condition laid down in Section 24 of Hindu Marriage Act, 1955 itself as
regards the sufficiency or otherwise, of the income of the party applying for
the benefit of Section 24. In a case where the factum of marriage is
acknowledgement or proved the allowance necessarily follows subject to the
discretion of the Court in the matter having regard to the means of the
parties. The subsequent dismissal of the substantive or main petition does
not absolve a party from the liability already incurred under an order made
under Section 24. Normally, the Court would not be in a position to judge
the merits of the rival contentions of the parties when deciding an
application for maintenance pendente lite and would not allow its discretion
1 Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
2 Mukan Kanwar vs. Ajit Chand, AIR 1961 Raj 51; Tarlochan Singh
vs. Smt. Mohinder Kaur; AIR 1963 Pun. 249 Amrik Singh vs. Smt.
Narinder Kaur; AIR 1979 Punj & Har. 211. and B.M. Muniratnam
Naidu vs. Shantamma, AIR 1971 Mys. 25.
Maintenance pendente lite—Procedure for disposal of application 101
decide the applications for grant of temporary injunctions and the like.
Such matters too are normally decided on affidavits. The Section lays
down when an order for maintenance pendente lite and the expenses can
be passed. Firstly, the spouse concerned should have no independent
income sufficient for her or his support and the necessary expenses of
the proceedings and then secondly for passing an appropriate order the
Court should have regard; (1) to the petitioner’s own income, and (2) to
the income of the respondent, and then it should award such sum as may
seem to the Court reasonable. A passing of an order under this section
will necessarily turn on the circumstances of each case and no fixed rules
can be expected on the subject. In cases of ordinary income a rough
working rule has been adopted by some courts on the analogy of other
enactments, such as the Indian Divorce Act, but that is not a hidebound
formula though the working rule may be of some use in fixing the
amount of interim maintenance. In cases of substantial income the court
need not have regard to any notional rule in exercising its discretion in
the matter regarding what proportion of the income of one spouse has to
be awarded by way of maintenance to be other. 1
In another case arising out of Hindu Marriage Act, 1955 it was
held that if the averments of the petitioner contained in her affidavit are
not considered enough, she should be afforded an opportunity to give
supplementary affidavit or affidavits on any point required by the Court or
if the Court so required even to lead evidence in the course of a summary
inquiry, at the end of which proper order should have been passed. 2
Procedure of enquiry
The Matrimonial Court is to follow the provisions of Section 21
of Hindu Marriage Act, 1955 which requires the Matrimonial Court to
adhere to the provisions of Code of Civil Procedure as far as may be
1 Vinay Kumar vs. Purnima Devi, AIR 1973 Raj 32: 1972 WLN 698.
2 Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383.
3 Gansan vs. Rasammal, AIR 1994 Madras 366.
Maintenance pendente lite—Proof of marriage 103
Proof of marriage
The object of this section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. Exercise of power under
this section does not appear to be dependent on the defence raised by the
opposite party. Even in cases where the factum of marriage is denied by
the opposite party the Court has jurisdiction to determine prima facie the
factum of marriage on the basis of documents and affidavits that may be
placed before the Court. The passing of an order under this section
further cannot be postponed till the final determination of the
relationship of husband and wife. If it be so the purpose of this section
would be frustrated. In a petition for restitution of conjugal rights if the
defence taken is that there was no marriage between the parties, and the
petitioner-wife has no means to support her or to conduct the legal
proceedings she would be without any remedy. In proceedings for
restitution of conjugal rights the factum and validity of marriage is
generally denied so that the party approaching the Court for relief may
be harassed and on account of harassment, such party may not pursue the
remedy. I am therefore, of the opinion that even if the factum or validity
of the marriage is denied, the Court exercising jurisdiction under the Act
has power to award maintenance and litigation expenses to the applicant
i.e. the wife or the husband after prima facie determining whether there
was marriage or not. The Court however has to be very careful and
cautious in considering the affidavits, the documents and other material
1 Jagmohan Verma (Lt.Cdr.) vs. Sunita Verma, 1983 (1) DMC 176:
1983 (4) DRJ 144: 1983 RLR 140.
2 Durga Bai vs. Mangi Lal, I (1993) DMC 174 MP.
3 Durga Bai vs. Mangi Lal, ibid.
Maintenance pendente lite—Quantum of interim maintenance 105
proceedings in the appeal i.e., from the date from which the wife
contested this appeal after service of notice of this appeal till the date of
the order and in addition a sum of Rs. 600/-as litigation expenses for
defending this appeal. 1
Quick disposal
An application under section 24 is to be quickly decided as a
summary proceeding and that it could not be made to wait until an issue
on merits was taken up for consideration. The proceeding will not cease
to be a proceeding for the purpose of section 24 of the Hindu Marriage
Act, if the proceeding was for the relief which could be granted under
the Hindu Marriage Act. 2
Reasonable amount
What Section 30 of J&K Hindu Marriage Act requires is that the
amount awarded by way of compensation should be reasonable. The
expression “reasonable” is a relative term. What may be reasonable in
one case may not be necessarily reasonable in another case.
Reasonableness of the quantum of compensation has not to be
determined by merely having regard to the petitioner’s own income and
the income of the respondent but also by having regard, as far as may be,
to the standard of life maintained by the family to which the parties
belong. The rule that is no case maintenance should be granted at a rate
or more than one-fifth of the husband’s income is not only unreasonable,
but also irrational which may some time defeat the very object of
avoiding vagrancy; the reason d’etre of Section 30 of the Act. 3
Resjudicata
The application filed under Section 24 of the Hindu Marriage Act
cannot be rejected merely on the ground that an application earlier filed
under Section 125, Cr.P.C. for maintenance was rejected. When the
proceedings under Section 9 of the Hindu Marriage Act are pending in
the trial Court, the wife, under Section 24 of the above Act, is entitled to
file an application for grant of maintenance of pendente lite. Therefore it
was held that the trial Court had rightly heard the matter and decided the
same on merits as the earlier decision under Section 125, Cr.P.C. is no
bar in deciding the application under Section 24 filed by the wife in the
trial Court. It was also be pointed out that the denial of factum of the
marriage by the husband was yet to be proved by him in the trial court
and merely because he has denied the factum of marriage, the right of
wife to get maintenance of pendente lite cannot come to end till the same
is finally decided by the trial court. 3
Retrospective effect
An application under Section 24 of the Act is not a suit by the
wife for maintenance under the Hindu Adoptions & Maintenance Act,
1956. Therefore, the maintenance could not have been granted prior to
the date of application under Section 24 of the Act. 4
Right of Children
In one case the trial court had before it an application only under
Section 24 of the Act for pendente lite maintenance both for the wife and
the minor child. After referring to the decisions of the other High Courts
and while upholding the grant of maintenance to minors it has been held
as under
‘It is also true that Section 24, in terms, provide for pendente lite
maintenance for the spouse only and not for the children of
marriage. But Section 26 invests the Courts with full jurisdiction
to pass, from time to time, such interim order for maintenance of
minor children as the Court may deem just and proper. It should
also be noted that while Section 24 requires for its operation on
application from the spouse concerned, the provision of Section
26, so far it relates to interim maintenance may be invoked even
without any application in writing and a formal application in
writing is necessary under Section 26 only for awarding
maintenance and other reliefs after the decree. The learned Judge,
therefore, had perfect jurisdiction to grant pendente lite
maintenance to the minor child even without a formal application
and, therefore, his granting such interim maintenance even when
moved by an application labelled as one under Section 24 only,
can not be branded as without jurisdiction or to involve any
jurisdiction question even though Section 24 does not provide for
maintenance for children. As already indicated, when the Court
had jurisdiction under Section 26 to grant pendente lite
maintenance to the minor child the court could exercise its
jurisdiction even without any formal application, it would be
putting too much premium on technicalities to strike down an
order for maintenance for the child solely on the ground that the
application invoking such jurisdiction quoted a wrong section or
did not quote the right section. The tendency of the courts, as
pointed out by the Supreme Court in Pratap Singh vs. Shri
Krishna Gupta, 1 towards technicalities is to be deprecated
because it is the substance that counts and must take precedence
over mere form. If in substance the wife has applied for
maintenance of the child also and the materials on record also
justify such a grant, then the application being labelled as one
under Section 24 only is only a matter of form and the application
could very well be treated as an application for the purpose of
Section 26 also, even if an application was necessary for
pendente lite maintenance of children under Section 26.
It is true that some High Court have taken the view that while
allowing an application under Section 24 of the Hindu Marriage
Act, the Court has no power to grant pendente lite maintenance
for the minor children and reference in this connection may be
made, among others, to a Division Bench decision of the Orissa
High Court Akasam Chinna v. Akasam Parbati, 2 and to a single-
Judge decision of the Patna High Court in Bankin Chandras v.
Anjali. 3 We have examined those decisions and we have felt, and
this we have felt, and this we say with great respect, that these
1 Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 at page
141
2 AIR 1967 Orissa 163 at 164.
3 AIR 1972 Patna 80 at 81.
Maintenance pendente lite—Right of Children 111
1 Mahendra Kumar Mishra vs. Snehalat Kar, AIR 1983 Orissa 74:
1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254: (1983) 1
DMC 219.
2 Subhasini vs. B.R.Umakanth AIR 1981 Kant 115 (DB): ILR (1980)
1 Kant LJ 734.
3 A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87
Mad LW 537: (1974) 2 Mad LJ 237.
Maintenance pendente lite—Scheme under Hindu Marriage Act, 1955 113
1 Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.
2 Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.
114 Law of Maintenance
Scope of enquiry
While fixing permanent alimony and maintenance under Section
25 of the Act, the court is expected to make detailed inquiry and has to
take into account not only the income but other properties of the parties,
their conduct and other circumstances of the case that the court might
consider relevant. But that would not be so for the decision of the
application under Section 24 of the Act as in its very nature, the inquiry
under Section 24 has necessarily to be summary. The court cannot be
bogged down to intricacies of a protracted trial for fixing maintenance
pendente lite and expenses of the proceedings. Otherwise, the very object
of the section would be frustrated which is that a party is not
handicapped in prosecuting his or her case. But, then in deciding the
application under Section 24 of the Act, the court has to act in
accordance with sound judicial principles and cannot act in an arbitrary
fashion to the prejudice of either of the parties. 2 The following principles
would appear to be relevant for the purpose:
(1) position and status of the parties;
(2) reasonable wants of the claimant (towards food, clothing,
shelter, medical attendance and treatment, education and the
like);
(3) income of the claimant;
(4) income of opposite party;
(5) number of persons opposite party is obliged to maintain.
Two corollaries may be added here: (1) In arriving at the income
of a party only involuntary deductions like income-tax, provident fund
contribution, etc., are to be excluded; and (2) though under the law
opposite party may be obliged to maintain brother or sister but if that
brother or sister having no income is living with the opposite party as
member of his family and where either there are no parents or are unable
Scope of entitlement
An order of maintenance pendente lite and costs of the
proceedings can be made only in a proceeding under the Hindu Marriage
Act and only for the period “during the proceedings”. The term “during
the proceedings” would cover the proceedings from the start till the end
or at least from the date of the application under Section 24 till the
termination of the proceedings in the Court. Section 24 of Civil
Procedure Code confers general power of transfer and withdrawal of
suits and proceedings up on the High Court and the District Court. There
is no substance in the contention raised on behalf of the applicant that
this application under Section 24 of C.P.C. is part of the proceedings
initiated by the opposite party for the annulment of the marriage under
the provision of Hindu Marriage Act but assuming without deciding that
it is part of the proceedings so initiated under the provisions of the
Hindu Marriage Act, the applicant cannot claim expenses for the
application and monthly allowance independent of the initial
proceedings. Under Section 24 of the Hindu Marriage Act one can claim
maintenance pendente lite and expenses for the entire proceedings and
not for each and every application and step taken in those proceedings. 2
So even if it is assumed that this transfer application is a step
taken in the initial proceedings or is a part of the initial proceedings
which are pending in the court below, then the applicant cannot claim
separate expenses for this application. In this view of the matter, the
applicant was held to be not entitled for maintenance pendente lite and
expenses of proceedings for this transfer application even if it is assumed
that it is a part of the proceedings initiated against her by the opposite
party under the Hindu Marriage Act. 3
A wife cannot be held to be entitled to maintenance pendente lite
under Section 24, Hindu Marriage Act solely or simply on the ground
that she is running in deficit in running her separate household. The trial
court would have jurisdiction to award maintenance under that section
1 Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10.
2 Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302:
1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.
3 Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302:
1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.
Maintenance pendente lite—Scope of Liability 117
Scope of expenses
In so far as the word “expenses” is a word of wider connotation
and includes “costs”, but is not limited to the costs that would be payable
on a party-and-party taxation under the rules of the Court. This view of
the word “expenses” used in Section 36 is supported by the very object
of the provision that is to be found in that section which is to enable the
wife to contest the proceeding without being at the disadvantage of
suffering from want of means. That object would not be served if the
word “expenses” in Section 36 is construed as limited to the amount that
would be payable by way of costs on a party-and-party taxation. In my
opinion, having regard both to the language of the section as well as its
object, the Court has power under Section 36 to order payment pendente
lite of all or such part of the attorney and client costs incurred by the
wife as it may consider to be reasonable. 2
Scope of Liability
Any one who claims himself to be a married man should be able
to pay that much for the support of his wife and if the husband is not in a
position to pay even that much to the wife he has no right to the society
of wife even if the marriage between them was valid in law. When it is
the case of the husband that the wife was over 18 years of age when the
marriage took place and the marriage was right and proper he should
have instead of filing this application against the order under Section 24,
tried to have the main petition for divorce decided as early as possible
because his liability for maintenance will continue only up to the date of
the decision of the main petition. 3
Second Appeal
Any proceeding under the Act is a proceeding in respect of a right
conferred under the Act and touches, in most cases, the marital status of
the party to the marriage. Such a proceeding starts in the Trial Court and
continues till the rights status of the parties is finally adjudicated. Thus,
an appeal, and for that matter even a Second Appeal would obviously
relate to the adjudication of the rights of the parties to the main petition
and it can hardly be said that a first appeal or even a second appeal is not
a proceeding under the Act. 1
Second marriage
The respondent is primarily liable for the maintenance of the
petitioner so long as she does not re-marry. The respondent is claimed to
be supporting his sister and mother. But the mother has no ration card
with the respondent and the sister is also married. Therefore, there is no
other liability resting on the shoulders of the respondent. Taking into
consideration the total income of the respondent, it was held that
maintenance at the rate of Rs. 450/-would be just and reasonable. The
fixation of the maintenance allowance at the rate of Rs. 150/- per month
from the date of the application seems to be justified in the totality of the
circumstances of the case. 3
The object behind Section 24 of the Act providing for
maintenance pendente lite to a party in matrimonial proceedings is
obviously to provide financial assistance to the indigent spouse to
obligation is not entitled to any relief from a matrimonial court. All these
maxims of equity are invoked while exercising inherent powers of the
court, for staying the proceedings, striking off the defence or dismissing
the suit. By just passing the said orders, only the dignity of the Court is
ensured, while by enforcing the order obligations to the family, wife and
children are saved from vagrancy. These are two sets of obligations and
they obviously require two remedies. As such, two sets of civil remedies
should not be equated with double penalty. 1
Where the husband was afforded more than ample opportunities
for making the payment but he did not pay the maintenance pendente lite
allowed to the wife under Section 24 of the Act, it was held that the
Judge, Family Court thereupon rightly struck off the defence of the
appellant who was respondent in the divorce petition. 2
Enforcement of order
Maintenance pendente lite and expenses of the proceedings are
ordered to be paid under Section 24 of the ground that the spouse in
whose favour the order has been made is without necessary means to
maintain herself and bear the expenses defending herself. Section 28-A
of the Hindu Marriage Act provides that all decrees and orders made by
the Court in any proceeding under this Act shall be enforced in the like
manner as the decrees and orders of the Court made in the exercise of its
original civil jurisdiction for the time being enforced. It cannot be
disputed that order under Section 24 is passed during the pendency of the
proceeding under the Act. Therefore, it is executable as decree passed by
Civil Court in exercise of original civil jurisdiction. 3
The Bombay High Court in Sarla Devi vs. Bharat Kumar 4 went to
the extent of holding that wilful disobedience by the husband to pay the
maintenance pendente lite and expenses of the proceedings would be
guilty of contempt and proceedings for contempt is not vitiated by
parallel proceeding under Order 21 Rule 37.
Unchastity
If a subsequent conduct of the wife who has become unchaste can
form the basis for cancellation of an order passed under Section 25(1), a
finding recorded during the judicial separation proceedings, regarding
the unchastity of the wife must and should be taken into account even in
1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66) DLT
460.
2 Om Prakash vs. Babli, II (1999) DMC 619 Rajasthan.
3 Kishan Lal vs. Longa Bai, I (1993) DMC 93 MP.
4 Sarla Devi vs. Bharat Kumar, I (1988) DMC 487
Maintenance pendente lite—Waiver 121
the first instance, when an order is being passed under Section 25(1) of
the Act. Otherwise it will lead to a very incongruous situation namely,
that it is only when a wife becomes unchaste after the award of
maintenance she is disabled from continuing to receive that maintenance,
whereas a wife who has been held guilty by the Court of unchastity even
in the main proceedings, will nevertheless be entitled to get maintenance,
in the first instance, under Section 25(1) of the Act. 1
Urgency
The object of Section 24 is to provide a monthly income and
expenses of the litigation to an indigent spouse to enable it to prosecute
or defend the proceeding under the Act and the law sees that nobody is
disabled from prosecuting or defending the matrimonial case by
starvation or lack of funds. It is true that the Court exercises wide
discretion in the matter of granting maintenance pendente lite, but the
discretion is judicial and not arbitrary and capricious. 2
In enacting Section 24, a special provision is made for ordering
interim maintenance and the expenses of litigation to be provided for
the contesting husband or wife if he or she had no independent
sufficient income. The very purpose of an order under Section 24 would
be frustrated if the manner of granting interim maintenance and of
providing the requisite expenses for the conduct of the proceedings
itself is deferred till the final stage of the proceeding. The direction for
interim alimony and expenses of litigation under Section 24 is one of
urgency and it must be decided as soon as it is raised and then only the
other matters in controversy can be gone into. 3
Waiver
The wife got a lump sum amount of Rupees 9000/- in execution
of the order passed in her favour under Section 125, Cr.P.C. At the time
when this amount was paid to her, only a sum of Rs. 6450/- was due to
her, but the husband in order to settle the matter finally paid a sum of
Rs. 9000/- and got an undertaking from the wife that no she would not
1 Raja Gopalan vs. Rajamma, AIR 1967 Ker 181: ILR (1966) 2 Ker
291: 1966 Ker LJ 856: 1966 Ker LT 891: 1966 Ker LR 518.
2 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700:
1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996
(1) All Mah LR 136.
3 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) CCC 700: 1996(1)
Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996 (1)
All Mah LR 136.
122 Law of Maintenance
claim any type of maintenance etc. against him i.e. her husband. It was
on account of this undertaking that the amount which was not been even
due at that time, was paid to the wife. In view of that undertaking, it was
held that the wife could not claim separate maintenance under Section 24
of the Act, though, she may be entitled to the litigation expenses. 1
Withdrawal of application
Dismissal of the earlier application as withdrawn without
permission to file a fresh application would be deemed to have been
dismissed on merits. The underlying idea of order 23, Rule 1 of the
C.P.C. is that unless specific permission is sought from the Court to
file a fresh suit on the same cause of action, second suit would not be
maintainable to avoid multiplicity of proceedings and harassment to the
opposite party. But those principles are not applicable when the
application of the husband for the grant of restitution of conjugal rights
is still pending and Section 24 of the Act clearly allow the wife to
claim maintenance pendente lite as also the litigation expenses. It was
held that unless her claim under Section 24 of the Act is declined on
merits by a speaking order, she cannot be denied the benefit of Section
24 of the Act. 2
1 Pritam Singh vs. Rajinder Kaur, AIR 1983 P&H 239: 1983 Hindu
LR 264: 1983 Marri LJ 300: 1983 Cur LT (Civ & Cri) 570: 1983
Mat LR 218.
2 Devinder Kaur vs. Gurcharan Singh, II (1983) DMC 63 P&H.
3 Kamal Seth vs. Saroj Seth, 1999(1) HLR 513 Delhi: 1999(1) DMC
267.
Maintenance pendente lite—Working wife 123
Working wife
All the High Courts in India have generally held that wife is
entitled to maintenance pendente lite to the extent of 1/3rd to 1/5th of the
income of the husband under Section 24 of the Act. The word
“sufficient” is a relative term and has to be considered on the facts of
each case. In this case it was held that if the wife was not employed she
would have been entitled to at least Rs. 1500/- to Rs. 2000/- per month
as maintenance pendente lite because the income of the petitioner has
been assessed at Rs. 8000/- per month. It was held that merely because
the respondent had chosen to work it does not mean that she is to be put
at a disadvantage and the husband is entitled to the benefit. It was further
held that he may be entitled to the benefit to the extent of her
independent income but that does not mean that the income of husband
become irrelevant. 1
Written statement
The wife was not bound to file the written statement before
moving the court for grant of maintenance pendente lite and expenses of
the proceedings. The whole object of awarding expenses of proceedings
is to enable the party to fight the case. 2
Chapter 3
Interim maintenance
SYNOPSIS
Introduction....................................125 Powers under Criminal Procedure
Object .............................................125 Code, 1973..................................... 131
Appropriate forum .........................127 Pauper wife.................................... 134
Conditions for granting maintenance Power under Section 151 Civil
.......................................................127 Procedure Code ............................. 134
Effective date..................................128 Power under Hindu Marriage Act,
Hardship ........................................128 1955 ............................................... 134
Inherent powers .............................128 Quantum ........................................ 134
Necessity of detailed enquiry .........130 Scope of adjudication .................... 135
Need for liberal approach ..............131
Introduction
Various enactments provide different provisions for maintenance
of wife by her husband. Some of these provisions provide for
maintenance during pendency of litigation between the parties while
other during the subsistence of marriage. Very often the application
seeking fixation for maintenance itself takes considerable time.
Therefore in order to do justice to the parties especially to the weaker
party it has been held by the courts that the matrimonial court is also
empowered to grant ad interim maintenance to the wife. This chapter
deals with such cases.
Object
Provisions under Sections 24, 25, 26 of the Hindu Marriage Act,
1955; Sections 18, 19, 20 and 22 of the Hindu Adoptions & Maintenance
Act, 1956; and Section 125 Criminal Procedure Code, 1973 as well as
similar provisions in other enactments, indicate a definite intention of
the Legislature to project and pursue a public policy against vagrancy. 1
Neither by forced separation, nor by staying the proceedings
under the Hindu Marriage Act, 1955 or any other similar provision,
1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66)
DLT 460
126 Law of Maintenance
hunger is stopped. Hunger does not breed reform, it breeds madness and
all the ugly distempers that make an ordered life impossible. Similarly
nor the needs of clothing and shelter are suspended during the stay.
Consequently, complementary moral and legal obligation on the husband
to support his wife does not cease to exist, by staying the proceedings.
Section 24 and other similar provisions just recognize and enforce this
obligation. Court dealing with matrimonial matters while staying
proceedings and while refusing to allow defence, are not enforcing this
obligation. They are just enforcing rules of equity. Equity acts on the
conscience and conduct of a person who is guilty of neglecting his
family, wife and children, is so unconscionable that the court feels that
he should not be allowed to pursue his case. 1
Hindu Marriage Act, 1955 is a socio-welfare legislation and is
intended to protect the women and children whose very existence is
threatened because of non-availability of requisite means. Extent of their
destitution compels them to take recourse to process of law founded on
dis-reformative legislative. To deny an interim protection which the
applicant may be intended to as a final relief in the petition would be a
approach which would decimate the very legislative purpose behind this
legislation. The legislative intend to protect the right of maintenance is
unambiguously codified in the language of Section 18 and 20 of the Act.
Absence of a specific provision for grant of maintenance pendente lite
would no way exclude the power of the Court to grant such a relief
depending on the facts and circumstances of each case. It would amount
to frustrate the very legislative intent behind these provisions if the
interim maintenance is to be declined to the wife or the children in face
of the provisions of Section 18 and 20 of the Act. It will not only be
unfortunate but even with respect illogical to hold that the grant of
maintenance pendente lite is not permissible under the provisions of this
Act. A child who approaches the Court for grant of maintenance under
the provisions of this Act would not be even able to contest and take
the suit instituted to its final culmination if he or she was not granted
interim maintenance, particularly when the application satisfied the
basic ingredients spelt out by the Legislature for the grant of such
relief finally. 2
It is a settled principle of law that a relief which cannot be
granted while passing the final decree cannot be granted by way of
interim relief in those proceedings, but converse thereof is not true.
1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66)
DLT 460.
2 Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H.
Interim maintenance—Conditions for granting maintenance 127
Depending on the facts and circumstances of given case, the Court would
grant interim order if such relief can be granted to the applicant upon
final determination of the matter in issue. The provisions of Section 18
and 20 Hindu Adoptions & Maintenance Act, 1956 have to be given a
wider meaning so as to provide interim maintenance pendente lite by
necessary implication. These provisions do not prohibit or exclude or
any settled principle the jurisdiction of the Court to entertain and decide
an application for interim or maintenance pendente lite. The Court would
normally exercise its inherent powers to aid the ends of justice and to
achieve the object of legislation. The exception being exercise of such
inherent powers, it should not be in conflict with or destroy the intents
behind the substantive provisions of the law or code, which governs and
control the matter under adjudication. 1
Appropriate forum
A petition seeking interim maintenance has to be filed by the wife
or the children under Section 18 of Hindu Adoptions & Maintenance Act.
If a divorce petition or any other petition contemplated under the Hindu
Marriage Act is filed, then the interim maintenance can only be granted
under Section 24 of the Hindu Marriage Act and if a decree is finally
passed in that event the party who is entitled to claim maintenance can
file a petition under Section 25 of the Hindu Marriage Act. There is no
provision is law enabling the claim of maintenance under Section 151,
Civil Procedure Code. 2 However another view is that power to grant
interim maintenance is incidental and ancillary to the substantive relief
of maintenance envisaged in section 18 of the Act and if the ends of
justice so warrant the court is competent to grant it in a suit for
maintenance. 3 For more cases see under Inherent Powers.
application for permanent alimony when the other spouse opposes any
grant thereof. Any other construction will be narrow and will lead to
frustration of the provision. Section 25 is a continuation of the main
proceedings. Placement or numbering of the Section or the description of
one set of documents as petitions and the other set as applications does
not alter this position. The purpose or using the words ‘husband’ or
‘wife’ is to identify the position occupied by the parties in the main
proceedings, and not to exclude ex spouses. 1
Effective date
In one case the learned Magistrate had not given any specific
reason for his direction for payment of interim maintenance from the
date of filing of the application under Section 125 Criminal Procedure
Code and not from the date of the application for interim maintenance or
from the date of the order. Though the position was not disputed that the
Magistrate had the competence to direct payment of interim maintenance
from the date of filing of the application under Section 125, Criminal
Procedure Code it was held that ordinarily the direction for payment of
interim maintenance is either from the date of the order or from the date
of application for interim maintenance. If the Magistrate considering the
facts and circumstances of the case before him deems it just and proper
to direct that interim maintenance should be paid not from the date of the
order or from the date of application for interim maintenance but from
the anterior date of filing of the application under Section 125 Criminal
Procedure Code he should discuss the reasons for such direction. This
will not only convince the parties that the jurisdiction vested in him has
been exercised properly and on sound judicial principles but it will also
avoid criticism of arbitrariness against his order. While deciding a case it
is important to determine whether the Court has the power/jurisdiction to
grant the prayer of the applicant and it is equally important to exercise
such power legally and properly. 2
Hardship
The order for payment of interim maintenance allowance can be
passed only in the case of great hardship. 3
Inherent powers
There is no separate provision in the Hindu Adoptions and
Maintenance Act, 1956 (for short the ‘Act’), for grant of maintenance
pendente lite. Section 18 of the Act, under which the case of the plaintiff
in essence is based, only provides for maintenance to a Hindu wife,
subject however to the two exceptions, carved out in sub-section (3) of
section 18 of the Act, which extinguish the right of a Hindu wife to a
separate residence and maintenance. Provisions of Sub-section (1) of the
said section make it obligatory for the husband to maintain the wife
during her lifetime. Her claim to maintenance is not forfeited even if she
resides separately on account of any of the grounds mentioned in Sub-
section (2) of the said Section. In other words, the obligation to maintain
the wife would still remain on the husband even though the wife might
be living separately from the husband until it is proved that the wife is
residing separately from the husband not under any of the circumstances
enumerated under Sub-section (2) of the said Section or is unchaste or
has ceased to be a Hindu by conversion to another religion. 1
That being the position in law, when it is imperative for the
husband to maintain his wife, it does not stand to any reason that during
the pendency of the suit for grant of maintenance, which may take
decades to attain finality, the wife in the first instance be forced to face
starvation and then subsequently is granted maintenance from the date of
the filing of the suit, if she is fortunate enough to survive till then. I feel
that such a view will be against the very intent and spirit of section 18 of
the Act. Even though there is no specific provision in the Act for grant of
maintenance pendente lite, the Court is amply empowered to make such
orders as may be necessary in the ends of justice. It is a trite proposition
of law that a court empowered to grant a substantive relief is competent
to award it on interim basis as well, even though there is no express
provision in the Statute to grant it. Power to grant interim maintenance is
incidental and ancillary to the substantive relief of maintenance
envisaged in section 18 of the Act and if the ends of justice so warrant
the court is competent to grant it in a suit for maintenance. 2
In one case the petitioner had asked for permanent alimony under
Section 37 of the Act and in case she succeeded in getting the order of
judicial separation under Sections 22 and 23 of the Act in her favour and
against the respondent, she would be entitled to the grant of permanent
alimony. It was held that therefore, there should be left some security in
the form of immoveable properties or otherwise which should be
sufficient and adequate enough for the grant of permanent alimony under
section 37 of the Act and that the house of husband can be adequate
security for the payment of permanent alimony to the petitioner in case it
is granted by the Court because every Court has inherent power to grant
relief during the pendency of the proceedings if the interest of justice so
requires. 1
In the case of Rama Chandra Behera and others v. Smt.
Snehalata Dei, 2 Orissa High Court held as under:
“……..We agree that there may be cases where taking the extra
ordinary aspects into consideration, the Court may proceed to
exercise inherent powers to grant interim relief. It is not
appropriate to set limitation on count’s inherent powers by
interim relief. It is not appropriate to set limitations on court’s
inherent power by indicating circumstances where it can be and
where it cannot be exercised……”
The power to make an interim order for maintenance pending an
application under Section 18 of the Act is implicit in the section. Such a
relief must be held to be ancillary and the power would be necessary
corollary to the power of the Court to entertain the application for
substantive relief. There have been a series of decision of this Court
taking the aforesaid view which in my opinion is also in consonance with
the spirit of the law. 3
However in a case involving Muslim Law it has been held that
the nature of the suit for restitution of conjugal rights is different from
the suit for maintenance which a Mohammedan is entitled to file under
the Mohammedan Law. There is also remedy to the wife to claim
maintenance under Section 125 of the Code of Criminal Procedure which
in fact the non-applicant/wife has resorted to. Therefore the Civil Court
had no jurisdiction to grant any interim relief by way of maintenance
pending the decision of the case. 4
1 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185
Del.
2 AIR 1977 Orissa 96.
3 Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114
Orissa.
4 Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13.
Interim maintenance—Powers under Criminal Procedure Code, 1973 131
fruits of the proceedings under Section 125, the applicant should be alive
till the date of the final order and that the applicant can do in a large
number of cases only if an order for payment of interim maintenance is
passed by the Court. Every Court must be deemed to possess by
necessary intendment all such powers as are necessary to make its orders
effective. This principle is embodied in the maxim ‘ubi aliquid
conceditur, concidetur et id sine quo res ipsa esse non potest (Where
anything is conceded, there is conceded also anything without which the
thing itself cannot exist.) A contrary view is likely to result in grave
hardship to the applicant, who may have no means to subsist until the
final order is passed. There is no room for the apprehension that the
recognition of such implied power would lead to the passing of interim
orders in a large number of cases where the liability to pay maintenance
may not exist. It is quite possible that such contingency may arise in a
few cases but the prejudice caused thereby to the person against whom it
is made is minimal as it can be set right quickly after hearing both the
parties. The Magistrate may, however, insist upon an affidavit being
filed by or on behalf of the applicant concerned stating the grounds in
support of the claim for interim maintenance to satisfy himself that there
is a prima facie case for making such an order. If the allegations in the
application or the affidavit are not true, it is always open to the person
against whom such an order is made to show that the order is
unsustainable. Having regard to the nature of the jurisdiction exercised
by a Magistrate under Section 125 of the Code, it was held that the said
provision should be interpreted as conferring power by necessary
implication on the Magistrate to pass an order directing a person against
whom an application is made under it to pay a reasonable sum by way of
interim maintenance subject to the other conditions referred to the
pending final disposal of the application. 1
It is the duty of the Court to interpret the provisions in Chapter
IX of the Code in such a way that the construction placed on them would
not defeat the very object of the legislation. In the absence of any
express prohibition, it is appropriate to construe the provisions in
Chapter IX as conferring an implied power on the Magistrate to direct
the person against whom an application is made under Section 125 of the
Code to pay some reasonable sum by way of maintenance to the
applicant pending final disposal of the application. It is quite common
1 Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984:
1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR
(SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160:
1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2)
Scale 697: 1986 Pat LJR (SC) 6.
Interim maintenance—Powers under Criminal Procedure Code, 1973 133
that applications made under Section 125 of the Code also take several
months for being disposed of finally. In order to enjoy the fruits of the
proceedings under Section 125, the applicant should be alive till the date
of the final order and that the applicant can do in a large number of cases
only if an order for payment of interim maintenance is passed by the
Court. Every Court must be deemed to possess by necessary intendment
all such powers as are necessary to make its orders effective. This
principle is embodied in the maxim ‘ubi aliquid conceditur, concediture
et id sine quo res ipsa esse non potest (Where anything is conceded,
there is conceded also anything without which the thing itself cannot
exist. A contrary view is likely to result in grave hardship to the
applicant, who may have no means to subsist until the final order is
passed. There is no room for the apprehension that the recognition of
such implied power would lead to the passing of interim orders in a large
number of cases where the liability to pay maintenance may not exist. It
is quite possible that such contingency may arise in a few cases but the
prejudice caused thereby to the person against whom it is made is
minimal as it can be set right quickly after hearing both the parties. The
Magistrate may, however, insist upon an affidavit being filed by or on
behalf of the applicant concerned stating the grounds in support of the
claim for interim maintenance to satisfy himself that there is a prima
facie case for making such an order. Such an order may also be made in
an appropriate case ex parte pending service of notice of the application
subject to any modification or even an order of cancellation that may be
passed after the respondent is heard. If a civil court can pass such interim
orders on affidavits, there is no reason why a Magistrate should not rely
on them for the purpose of issuing directions regarding payment of
interim maintenance. The affidavit may be treated as supplying prima
facie proof of the case of the applicant. If the allegations in the
application or the affidavit are not true, it is always open to the person
against whom such an order is made to show that the order is
unsustainable. 1
A bare perusal of the provision of Section 125 Criminal
Procedure Code spells out that there is no specific provision for
awarding interim maintenance pendente lite. However, the Court, under
the facts and circumstances of the case, is not lagging behind in suitable
cases to pass such an order keeping in view the object of Section 125
1 Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984:
1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR
(SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160:
1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2)
Scale 697: 1986 Pat LJR (SC) 6.
134 Law of Maintenance
Pauper wife
When wife is declared to be pauper by the court but maintenance
denied, such order is patently inconsistent and wife entitled to
maintenance. 2
Quantum
Where the High Court fixed up a sum of Rs. 3,500/- and It was
held that that it is far too low. The wife had claimed that at least a sum
of Rs. 10,000/- should be granted by way of interim maintenance as she
had not only to maintain herself but to bring up the only child in the
standard in which child of a D.I.G. has to be brought up. The husband
submitted that the entire amount which he gets is by way of salary only
and the take of amount cannot exceed Rs. 16,000/-. This was disputed by
saying that the respondent is getting other income by way of house rent,
etc. In this background the Supreme Court permitted the wife to prove
all such facts for a decision at the final stage when the Court will be in a
position to fix the sum which in the circumstances be reasonable to be
given by way of maintenance to the wife/appellant and the child. But at
this stage the Supreme Court deemed it sufficient to fix a sum of
Rs. 6,000/- as interim maintenance in place of Rs. 3,500/-. This
enhancement will work from 1 st July, 2000. It was however made clear
that the High Court shall not in any way be influenced by that amount in
fixation in the sum at the final stage as the Supreme court was not fully
in possession of the materials and the documents to ascertain the exact
amount of income of the respondent. Hence, when final amount is fixed
the High Court will certainly look into the other aspects of the matter. 1
Scope of adjudication
The appellant filed a petition for judicial separation and other
reliefs. In the said petition, the appellant claimed interim maintenance.
The Family Court partly allowed the application to the extent of the
claim of interim maintenance in respect of the two minors daughter. As a
counter-blast the respondent filed a petition in the Family Court for
declaration that the marriage with the appellant was nullity. Both the
petitions— one filed by the appellant and the other by the respondent
were yet to be decided on merits by the Family Court. Under the
circumstances, it was held that it was not appropriate for the High Court
to record any concluded opinion about the legal position of the marriage
between both the parties. 2
In a case under Section 125, Criminal Procedure Code it was held
that the Trial Court is to take prima facie views of the mater and it is not
necessary for the Court to go into the matrimonial dispute between the
parties in detail. 3
Chapter 4
Disabilities depriving
maintenance
SYNOPSIS
Introduction....................................136 Legitimacy of child ........................ 163
Abandonment of claim ...................137 Living in adultery .......................... 165
Adultery ..........................................137 Living separate by mutual consent 166
Agreement to live separately ..........142 Living with father .......................... 167
Annulment of marriage ..................142 Maintenance by others .................. 167
Cancellation ...................................143 Necessity of consummation of marriage
Co-habitation by divorced wife ......143 ....................................................... 168
Conduct of wife ..............................144 Nullity marriage ............................ 168
Consent to live separately ..............147 Ornaments ..................................... 169
Decree for restitution of conjugal rights Ownership of property................... 169
.......................................................147 Paternity of child ........................... 170
Demand of separate residence .......150 Pre-existing order.......................... 170
Dependence on parents ..................150 Prior marriage .............................. 170
Dependence on parties ...................150 Proof of divorce ............................. 170
Dispute about validity of marriage 151 Proof of marriage .......................... 171
Divorced wife .................................152 Refusal to co-habit......................... 174
Earning wife ...................................154 Restitution of conjugar rights ........ 147
Effect of caste .................................154 Right over property ....................... 184
Explanation for living separately...155 Second marriage............................ 184
Fixed properties .............................155 Second wife .................................... 190
Illegitimate child ............................156 Sufficient income ........................... 191
Illegitimate wife .............................156 Temporary Employment ................ 191
Independent income of wife ...........157 Unproved illicit relation ................ 192
Inherited fixed assets......................159 Unreasonably attitude ................... 193
Invalid marriage ............................160 Validity of marriage ...................... 193
Justification to live separately .......161 Working wife.................................. 200
Introduction
Different provisions of the various Acts governing personal laws
provide for maintenance pendente lite as also permanent maintenance or
alimony. These provisions refer to various factors, which have to be
Disabilities depriving maintenance—Adultery 137
considered by the courts. Some of these factors are the income, status
and conduct of the parties. These factors as interpreted by court as also
section 18 of Hindu Adoptions & Maintenance Act, 1956 lays down the
circumstances in which the spouse shall not be entitled to maintenance.
This chapter deals with such disabilities, which affect the grant of
maintenance.
Abandonment of claim
Simply because the wife has not claimed maintenance for a long
period, it does not mean that she has completely abandoned her right or
voluntarily given up her right to claim maintenance. In her application
she pleaded that she has no other source of income and she is unable to
maintain herself. She might be living with her parents to the utter
humiliation of other ladies and without any courtesy and respect which a
daughter is entitled to in her parental house if she is living quite happily
and peacefully with the husband, with the only fond of reunion. But
when all her hopes are shattered away, and when there is no other source
of income and when she feels herself burdensome to her parents or
brothers, she has approached the Court claiming maintenance. Apart
from that, Section 125 Criminal Procedure Code has not restricted the
period of limitation to claim maintenance. When the statute has not
prohibited any wife to claim maintenance with any period of limitation,
the petitioner is not entitled to plead that she has waived her right to
claim maintenance due to the long lapse of 10 or 12 years after she left
his house. Due to the changed circumstances in her parents house, her
parents may not be willing to maintain her and they may not be in a
position to maintain her since other children have grown up and some
other problems might have cropped up in her family. Under these
circumstances, the petitioner is not entitled to raise the plea that the
respondent has waived her right to claim maintenance after a long lapse
of 12 years. 1
Adultery
The word “adultery” has been considered in many decisions since
a century. The words “is living in adultery” in Sub-section (4) of Section
125 Criminal Procedure Code would not take into their fold stray
instance of lapses from virtue, it would not also mean that the wife
should be living in adultery on the date of the petition. The proper
interpretation would be that there should be proof of adulterous living
shortly before or after the petition, shortly being interpreted in a
reasonable manner viewing it in the light of the face of the case.
Annulment of marriage
The right of the wife to maintenance depends upon the
continuance of her marriage status and once the status of husband and
wife is declared to be null and void, the effect would be the same as in
the case of void marriage under Section 11 of the Act. The legislature
has given the benefit of the provisions of Section 125 Cr. P.C. to a
divorced woman as long as she did not remarry by including Clause (b)
of the Explanation, but, not such provision has been brought in so as to
apply in the case where the marriage is declared null and void. The
legislature decided to bestow the benefit of the section on a illegitimate
child by express words, but, none are found to apply to a de facto wife
where the marriage is void, ab initio or voidable and declared void by a
decree of nullity. The benefit of maintenance under Sub-section (1)(a) is
Cancellation
The order of cancellation under Sub-section (2) of the Section
127 Cr. P.C. normally is effective prospectively. The language of Sub-
section (2) of Section 127 empowers the Magistrate to cancel or vary the
order according to the decision of the competent Civil Court and till then
the order passed by him remains effective. So far the language used in
the provision, was stated that the order that may be passed under Sub-
section (2) of Section 127 shall be prospective in operation. 2
Conduct of wife
In England in one case a question arose in regard to section
3(1)(g) of the Domestic Proceedings and Magistrates’ Court Act 1978
which contained a provision which, although differently worded was of
the same effect. This provision provided the following as one of the
matters to be taken into consideration:
‘any other matter which in the circumstances of the case the court
may consider relevant, including, so far as it is just to take it into
account, the conduct of each of the parties in relation to the
marriage’.
In Wachtel v. Wachtel, 4 Ormord, J. said:
appellate court should not interfere with the discretion of the magistrate
unless it is clearly satisfied that they were wrong. 1
1 Robinson vs. Robinson, 1 All ER 391 (CA): (1983) II DMC (BJ) 33.
2 Harvinder Kaur vs. Paramjit Singh, 1999(1) HLR 260 P&H.
3 Laxmi Sahunai vs. Maheswar Sahu, AIR 1985 Orissa 11: (1984) 1
Orissa LR 518: (1985) 2 DMC 176.
4 Laxmi Sahunai vs. Maheswar Sahu, ibid.
148 Law of Maintenance
they alone) could live together and bring up a family of their own. No
doubt that may be an ideal condition, but is one not always feasible and
very often impossible, especially when the husband is not financially
well off and has to look after his aged parents. Times are yet to come in
our country when aged parents could be shoved off to infirmaries, be it
that such days are signs of progress as some claim to be of retrogression
as some other view it. In proceedings for the restitution conjugal rights,
courts are to be guided by the fundamental and basic rule of matrimonial
law that it is the right of each spouse to have the society and comfort,
consortium of the other. The husband is entitled to it; equally so, the
wife. So long as the residence of the aged parents of the husband under
the same roof with him is not provocative of creating circumstances
grave enough to subvert, the wife’s right to consortium of her husband,
the court cannot accept the arguments regarding her right to separate
residence with her husband away from his parents. 1
Dependence on parents
In one case the wife was forced to life as parasite with her
parents. She was forced to do agriculture work for her father. This was
considered by trial court to be sufficient means of earning livelihood.
This sort of reasoning and conclusion is nothing but the result of pervert
way of looking at the life. It was held that the learned Magistrate ought
to have realised that one does not live the life of parasite out of volition.
The fact that she is required to live her life as destitute and if she helps
in the agriculture work of her father, it can never be said that she had
sufficient means to earn her livelihood. The fact that she is forced to go
to her parents’ place and live there as parasite itself should be considered
sufficient to hold that she was unable to maintain herself. 2
Dependence on parties
The wife is required to aver that (i) she is the wife of the non-
applicant; (ii) that the non-applicant has sufficient means, yet he is
refusing or neglecting to maintain her; and (iii) that she herself is unable
to maintain herself. However, the Revisional Court completely
misdirected itself in considering the recitals in the application for
maintenance filed by the wife under Section 125 of Criminal Procedure
Code as well as the statements made by her in her deposition. The
applicant in her deposition had stated that “she was not doing any work
and she was completely dependent upon her parents”. It was held that
time had been lost and if the wife was entitled to maintenance she had
been deprived of it for all these years. 1
Divorced wife
The disqualification attempted to put forward against wife was
that after the order for restitution of conjugal rights she filed a petition
and obtained an order for divorce from the husband. Such an argument is
not available to the husband in view of the extended definition of ‘wife’
mentioned above. It is immaterial as to who moved for divorce. The
extended definition includes within its ambit a lady, who has divorced by
her husband as well as one who obtained a divorce from her husband on
her own violation in spite of the opposition from the husband. If so, a
divorce by mutual consent must also come within the provision and a
wife who joined with the husband in effecting divorce also will come
within that definition. In order to put forward a claim for maintenance as
a divorced wife, it is immaterial how the divorce came into being. If she
has no disability in claiming maintenance under any other provision, her
claim must stand. 2
Originally, the Hindu marriage, succession, minority
guardianship, adoption and maintenance were part of the Hindu Code
Bill and later on they took statutory form by different Acts, but
Legislative intention to provide maintenance to spouse even after divorce
which is contained in Section 25 of the Hindu Marriage Act, has to be
read into both the sections and provisions in both the Acts. Same
Legislature cannot be imputed with two different intentions in respect of
the same couple on the same question. Under Section 25 of the Hindu
Marriage Act, if the provision regarding maintenance is to be applicable,
both to a wife and a divorced wife, there is no reason why the same word
“wife” which is used in Section 18 should not be read in the same
manner because both these provisions deal with the question of
maintenance between a husband and wife. Under Section 25 of the Hindu
Marriage Act, there cannot be any doubt or dispute that the wife would
necessarily include a divorced wife for the purpose of maintenance and
alimony even through the section uses the word “wife” or “husband” and
not “divorced wife” or “divorced husband” and it also provides for
maintenance not exceeding the life of the applicant. Similarly, in Section
18 of the Hindu Adoptions & Maintenance Act, 1956, though the words
1 Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
PatLJR 11: 1985(2) Rec Cr R 61
2 Mampekkattu Nanu vs. Mampekkat Vasantha, II (1986) DMC 109
Kerala.
Disabilities depriving maintenance—Divorced wife 153
used are “wife and husband” the maintenance is provided by the husband
during the lifetime of the wife. Thus, the scheme of both these sections is
the same; the purpose is the same; the words used are the same.
Therefore, when the word “wife” in Section 25 of the Hindu Marriage
Act includes a divorced wife, so also in Section 18 of the Hindu
Adoptions & Maintenance Act, the word “wife” has to be interpreted to
mean a divorced wife. Any other construction would lead to anomalous
and contradictory situations and orders. If the wife makes an application
under Section 25 of the Hindu Marriage Act for maintenance even after
divorce, that would be maintainable, but if she makes an application for
the same purpose under Section 18 of the Hindu Adoptions &
Maintenance Act, it would not be maintainable even though both the
provisions have same purpose in mind and the same intention to provide
maintenance to the wife. Therefore, it was held reasonable to hold that
the words “wife” and “husband” are used to describe the relationship to
provide for maintenance during the life-time of the wife and it includes a
divorced wife and by doing so, there is no violation done of the language
or the meaning because the meaning is always to be taken from the
context and intention. For example, a married woman living happily with
her husband with her husband can be held to be a widow on the question
of succession to the property of her former deceased husband and by
describing her as widow, there is no evidence done to her present marital
status of having a husband and happily living with the husband because
the meaning has to be given in the context of the purpose and the
intention. Similarly, when a question of maintenance arises between a
husband and a wife, it arises only in a situation where there are serious
disputes between the husband and a wife and which may arise before
divorce or thereafter and the Legislature makes the provision for the time.1
It is not every divorced wife who can claim maintenance under
Section 125(1) of the Code. A woman who has been divorced by her
husband is included in the first part of Explanation (b) to Section 125(1).
She can claim maintenance under Section 125(1). It this category would,
normally, fall the case of a Muslim women who has been unilaterally
divorced by her husband in accordance with the Muslim Personal Law.
This category may also include a woman who, under the customary law
applicable to some Hindus, has been unilaterally divorced by her
husband. The second category falling under Explanation (b) to Section
125(1), who can claim maintenance under the said section, consists
of a woman who has obtained divorce from her husband meaning
thereby that the wife has initiated proceedings for obtaining divorce
from the husband. 1
Earning wife
There is social and moral obligation of the husband to maintain
his wife and child and not to leave them at the mercy of her parent.
Where the wife is a qualified lady and even if she is making an attempt
to earn some money to bring up her child in a better way, this would not
be a factor which would disentitle her from claiming maintenance for
herself as well as for her child from the husband because she is entitled
to live the same lie in terms of social and financial status in which she
would have enjoyed if the continued to live with her husband. Whether
he was forced to leave the matrimonial home because of the cruelties of
husband or was it her act of desertion is the matter which has to be
decided by the Court at the time of final decision of the main petition. 2
In another case the wife filed the revision petition praying for
enhancement of maintenance pendente lite as well as litigation expenses.
It was not denied by the wife even in the revision that the husband was
maintaining the minor child. She had also not disputed the fact that she
was M.A. in Economics. In these circumstances, it was held that it is
difficult to believe that the wife is not having any income whatsoever.
Presumption of reasonable conduct and capacity to earn reasonably are
equally applicable to either of the spouses to the marriage. There is an
obligation on the part of the husband to maintain his wife but he
certainly cannot ignore his other obligations and such maintenance
cannot be at the cost of every other moral and legal duty which the
husband may owe towards his minor child and his parents. 3
Effect of caste
The claim of maintenance cannot be defeated on account of caste
of the woman. This position remained unaffected by provisions of Hindu
Adoptions and Maintenance Act, 1956. Concubine has a right to seek
maintenance. A Brahmin woman and her illegitimate son of Sudra father
are entitled to maintenance from the Estate after the death of father. 4
Fixed properties
In the normal course the Court should have granted maintenance
to the wife also having regard to the earning capacity of the husband but
what weighed in the mind of the Court was that there is a house in the
name of the wife which has been sold for Rs. 2 Lacs and, therefore,
according to the trial Court she is not without any income. The flat in
was purchased in her name on the basis of the power of attorney but it
does not show that it belongs to her. It is also not shown as to from
where the assets have come to the wife for the purchase of the flat. It is
admitted by the husband that he gave Rs. 20,000/- and the balance
amount was spent by the father of the petitioner’s wife. Which money
appeared to have been returned. It was held that at any rate the wife is
without any income and it is the duty of the husband to provide
maintenance to her in addition to the child. The wife had asked for
Rs. 1,000/- per month for herself and the child Rs. 2,000/- for litigation
expenses. Having regard to the fact that the respondent husband is also
only drawing Rs. 2300/- it was held to be expedient in the interest of
justice to direct the husband to pay to the wife Rs. 400/- as maintenance
and Rs. 300/- as maintenance of the child already granted by the trial
Court i.e. Rs. 700/- in all with Rs. 1,000/- towards litigation expenses. 2
Section 24 states that where in any proceedings under the Act, it
appears to the court that either the wife or the husband, as the case may
be, has no independent income sufficient for her or his support and the
necessary expenses of the proceedings, it may, on the application of the
wife or the husband order the respondent to pay to the petitioner the
expenses of the proceeding and monthly, during the proceeding such sum
as having regard to the petitioner’s own income and the income of the
respondent, it may seem to the Court to be reasonable. If the wife or the
husband, as the case may be, has no independent income sufficient for
her or his support and necessary expenses of the proceeding, the court
can pass appropriate order having regard to the income of the spouses. It
would be worthwhile to compare the provision in Section 24 with that in
Section 25 dealing with permanent alimony and maintenance. That
section requires the court to have regard to the income and other
property of the spouses. It is significant to note that Section 24 refers
only to income and not other property. Therefore, in considering a case
arising under Section 24 of the Act, it is only the income and not other
property which requires to the considered. 1
Illegitimate child
The questions whether the one claimant was the married wife of
the respondent and whether the other claimant was the legitimate or
illegitimate child of the respondent, are pre-eminently questions of fact.
The learned Magistrate after considering the evidence, as adduced by the
parties, held that the appellant No. 1 was not the wife of the respondent.
He further held on the basis of the evidence on record that the appellant
No. 2 was the illegitimate child of the respondent. After considering the
evidence on record it was held that the learned Judge of the High Court
committed an error in making a re-assessment of the evidence and
coming to a finding that the appellant No. 2 was not the illegitimate
child of the respondent. The High Court in its revisional jurisdiction was
not justified in substituting its own view for that of the learned
Magistrate on a question of fact. 2
Illegitimate wife
For a woman claiming maintenance under Section 488, Criminal
Procedure Code it is essential for her to establish that she was the wife of
the opposite party in accordance with the provisions of the personal or
the Civil law applicable regarding the marriage between the parties. It
follows, therefore, that what is contemplated by the term ‘wife’ referred
to in Section 488, Criminal Procedure Code is legally wedded wife in
accordance with the Personal Law of the parties or the Civil Law
governing the marriage between the parties. It would not, therefore,
cover the case of a women whose marriage with the respondent is void
ab initio being in contravention of the personal or the Civil Law
governing their marriage. A woman would be deemed to be a wife for the
purpose of this section to be that woman who is a legitimate wife by
reason of a valid marriage according to the law governing the parties. It
the legislature had intended to give the benefit of this section for the
grant of maintenance to all such woman who were not legally wedded
wives but otherwise married to the respondent, then no distinction could
have been made between the wife and the child, held entitled to claim
maintenance by making a reference of entitlement to “legitimate or
illegitimate child.” It becomes very clear from the expression used in the
second part thereof were a reference is made to “legitimate or
illegitimate child” who can claim maintenance under Section 488(1) of
the Code. The legislature was clear in its mind to apply this provision in
respect of child either legitimate or illegitimate born of a woman
neglected or refused to be maintained by his or her father. If it was
intended to include any illegitimate wife, the legislature could have said
so, just as it said in respect of children. It follows therefore, that no
illegitimate wife or a woman claiming to be the wife whose marriage is
ex facie illegal can claim any maintenance under this section. 1
If it is held that any woman who has solemnized the marriage
with the respondent would be deemed to be a wife for the purposes of
this section, the same would amount to doing violence to the provisions
of Section 488, Criminal Procedure Code and would also lead to
disastrous results which would be against the public interest and the
social object sought to be achieved by making a provision attaching
sanctity to the institution of marriage. Law cannot be interpreted in a
manner which leads to immorality by permitting the woman to lead
immoral life with the hope that if subsequently deserted, they would be
entitled to claim maintenance for leading immoral life with the man. 2
income of the husband and the position of the wife, it was held that there
is no reason to interfere with the findings of the learned trial Judge. 1
Normally, application under Section 24 of the Hindu Marriage
Act, 1955 should be decided only on the bass of the affidavits but in the
peculiar facts and circumstances of this case where both the parties have
not placed the material on record for the just determination of the income
of the wife and the husband, the matter required fresh determination and
was therefore remanded. 2
The claim of the petitioner-wife for maintenance pendente lite
was declined, primarily on the ground that she is earning a sum of
Rs. 1500/-per month and, therefore, was not entitled to any maintenance.
But it was held that the wife is entitled to maintenance pendente lite for
maintenance of her two minor children, who were admittedly living with
her. The husband is bound in law to maintain his minor children. He has
sufficient means and, therefore, is liable to pay some amount for
maintenance of the two minor children, but the wife is not entitled to any
maintenance pendente lite as she was already earning a sum of
Rs. 1500/-per month. 3
In another case, except the ipse dixit of the revision petitioner
there was no proof forthcoming to show that the respondent is drawing
salary of Rs. 1687.50 from her employment in a school. The wife denied
the said payment of Rs. 1,687.50 by the school but she has stated that she
is paid a sum of Rs. 20.- per day if she went to the said school to attend
to the duties of an “Aya”. Therefore the contention of the revision
petitioner that the respondent herein is living in affluent circumstances
drawing a monthly salary of Rs. 1,687.50 is not entitled to any
acceptance in this case was not accepted and it was held that the
maintenance payable to the respondent by the revision petitioner and the
order of maintenance passed against the revision petitioner cannot be
cancelled under Section 127 of Criminal Procedure Code. 4
If a wife is being paid social security benefit or supplementary
benefit, as the case may be, the amount could be recovered from the
husband if he was in that country because after all it was the duty of the
husband to maintain his wife and the child if they had no independent
income sufficient for their support and the necessary expenses of the
proceedings. State funding of social security programme is at the cost of
taxpayers’ money. If the husband is in that country where the wife is also
living he can be burdened with expenses which the State is incurring for
payment of social security benefit to his wife and child. Merely because
husband is living in this country and the Government of a foreign
country does not or is unable to enforce a claim against the husband,
which it could have done in its own country, there is no reason why the
husband living in this country should escape his responsibility and
obligation imposed upon him under the law. Therefore the supplementary
benefit or social security benefit conferred on a spouse in a foreign
country should not be taken into consideration while deciding the
application under Section 24 of the Act. Whatever amount is awarded to
the spouse under this section, to that extent the social security benefit or
supplementary benefit would abate, subject, however, to the condition
that the balance of the income of the spouse in this country should not be
less than the standard laid (not the amount) for grant of social security
benefit or supplementary benefit allowable to the spouse in the foreign
country. This would also be further subject to the condition that the
claim of the spouse in this country as regards his expenses, is taken into
account. 1
In another case it was claimed by the husband that the wife
derives income from tuition and some knitting work which she does in
addition. The mere fact that the income from the father’s shop is taken
into account for deciding the means of the wife is sufficient to show that
the finding on this question is vitiated. It was therefore held that that in
these circumstance it is unnecessary to examine the other meagre sources
mentioned by the husband which may have been adopted for the time
being by the wife to save herself from starvation. This part of the order
was therefore set aside. 2
But in another case when the wife did not deny specifically the
property inherited by her from her father, the allegation of the husband
was taken as correct. It was held that it was within the special knowledge
of the wife regarding the actual income received from the house. In the
revision petition filed by the husband an effort was made to produce
material that from the said house there was income of about Rs. 1,650
per mensem, but it was not considered appropriate at that stage to make
any enquiry regarding the actual income from the said house which is
stated to be with the tenants. It is the wife who is to suffer on that
account as she did not disclose about the house owned by her and the
income derived by her there from. She was supposed to approach the
Court with clean hands and when she had concealed the source of
income, and particularly in view of the broad facts on which the petition
has been filed i.e. concealment of her previous marriage by obtaining
consent of the present petitioner for marriage, she disentitled herself for
the interim maintenance during pendency of the proceedings. 1
Invalid marriage
The attempt to exclude altogether the personal law applicable to
the parties from consideration should be repelled. The section 125 of
Criminal Procedure Code, 1973 has been enacted in the interest of a
wife, and one who intends to take benefit under sub-section (1)(a) has to
establish the necessary condition, namely, that she is the wife of the
person concerned. This issue can be decided only by a reference to the
law applicable to the parties. It is only where applicant establishes her
status on (or) relationship with reference to the personal law that an
application for maintenance can be maintained. The appellant cannot rely
on the principle of estoppel so as to defeat the provisions of the Act. So
far as the respondent treating her as his wife is concerned, it is again of
no avail as the issue has to be settled under the law. It is the intention of
the legislature which is relevant and not the attitude of the party. The
marriage of a woman in accordance with the Hindu rites with a man
having a living spouse is a complete nullity in the eye of law and she is
not entitled to the benefit of Section 125 of the Code. 2
1 Brijinder Bir Singh vs. Mst. Vinod @ Parminder, I (1992) DMC 591
P&H.
2 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR
1988 SC 644: 1988(1) SCC 530: 1988 SCR 809: 1988(1) Scale 184:
1988(1) JT 193.
Disabilities depriving maintenance—Justification to live separately 161
1 A. Bhagavathi Ammal vs. Sethu, AIR 1987 Madras 224: (1987) 100
Mad LW 419: (1987) 18 Lawyer 25: (1987) 2 DMC 292: (1987) 2
Cur CC 871.
2 Bergin vs. Bergin (1983) I All ER 905: (1983) II DMC (BJ) 28.
3 N.P. Abu vs. Vellan Thotti Asma, 1999(1) HLR 32 Kerala.
162 Law of Maintenance
the side of Monika to prove that he gave some medicine which aborted
the foetus in the womb of Monika. As such it was difficult to come to a
definite conclusion as to whether such an abortion really took place.
There is of course, admission on the part of the Monika that she was
under the treatment of a doctor and that her husband also had borne some
medical expenses. However, she had stated in her cross-examination that
she had no objection to be examined by a medical expert. In this back
ground it was held as under:
‘As such the ball is now in Issac’s Court. Inspite of all evidence
on record, the Court is in the dark as to the real state of affairs
that stands like the Berlin Wall between the newly married
couple. Even the Berlin’s wall is now broken. If the allegation of
the husband regarding Monika’s lacking femininity is true then
surely there is a way out as Monika herself is prepared to undergo
medical examination under an expert physician. If there be any
cosmetic unpleasantness, modern medical science is so advanced
that such an unpleasantness may be set right by use of proper
medicine or by plastic surgery or by any, method known to
modern medical science. Then a day will come when this unhappy
couple may find the true meaning of conjugal life. Having
overcome their traumatic experiences, they may emerge as a
couple rejuvenated. They must not forget that the marriage
according to their faith is a sacrament. There is incontrovertible
proof that without any just cause the husband. having sufficient
means, has neglected and refused to maintain his wife. 1
On the question of drunkenness it was observed that drunkenness
of the husband, particularly of a chronic and excessive character, can
lead to repeated acts of cruelty towards the wife. It is not to be expected
that the wife should be a silent sufferer for ever of such a cruel
treatment. It is true that wife beating had been prevalent from early times
among all classes without distinction. Following reference was made to
the picture portrayed by Frederick Rogers in his book ‘Labour, Life and
Literature’ ‘Memories of 60 years’, holding that it may be a familiar one
irrespective of time or clime:
“wife beating was never a monopoly of working classes and it has
all but disappeared from every form of social life that I know. it
is quite an ancient custom, dating probably from primitive times,
and all classes have indulged in it. there is an entry in the church
books of john bunyan’s chapel at bedford which tells how a
member of the congregation was reprimanded at a church meeting
for beating his wife when she did not deserve it. in the street
where I lived as boy and young man we were is an atmosphere of
Legitimacy of child
On the sole ground that the child had been born in about 7
months’ time after the marriage it cannot be concluded that the child
should have been conceived even before the respondent had
consummated the marriage. Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an improbable or impossible
event. It was held that the learned Judge had completely lost sight of
Section 112 of the Evidence Act, lays down that if a person was born
during the continuance of a valid marriage between his mother and any
man or within two hundred and eighty days after its dissolution and the
1 See Siva Raman Rajendran vs. Janaky Sumathy, I (1985) DMC 220
Kerala; Riyasatbi Shaikh Jani vs. Shaikh Jani Shaikh Kasam, I
(1984) DMC 225 Bombay; Satish Kumar Arora vs. Varsha Arora, II
(1983) DMC 445 All.
164 Law of Maintenance
1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237:
1987 All WC 627.
Disabilities depriving maintenance—Living in adultery 165
factors negate the plea of the respondent that the minor child was not
fathered by him. The proper course for the High Court, even if entitled to
interfere with the concurrent findings of the Courts below in exercise of
its powers under Section 482, Cr.P.C., should have been to sustain the
order of maintenance and direct the respondent to seek an appropriate
declaration in the Civil Court, after a full-fledged trial, that the child was
not born to him and as such he is not legally liable to maintain it.
Proceedings under Section 125, Cr.P.C. are of a summary nature and are
intended to enable destitute wives and children, the latter whether they
are legitimate or illegitimate, to get maintenance in a speedy manner. 1
Living in adultery
Assuming for the sake or argument that the wife committed a
lapse in her life and became pregnant which would not mean that she was
living in adultery. A village woman, if she lives in adultery, would never
go unnoticed by the villagers unlike what happens in an urban area. If
the wife was really living in adultery with someone it would have been
definitely come to the noticed of the husband and/or his relatives and in
that case it would not have been at all difficult for the husband to adduce
evidence in that regard. That being the case, the husband miserably
failed to prove that his wife was living in adultery. And it is only when
the husband proves it satisfactorily that the wife was living in adultery
the wife would disentitle herself to maintenance under Section 125 of the
Criminal Procedure Code. 2
In Hiraman Laxman Jadhav vs. Sou. Balubai Hiraman Jadhav 3 it
was observed as under:
‘In order to show that the decision arrived at by the learned
Session Judge, with reference to the evidence relating to the wife
“living in adultery”, has been correctly taken, it is quite
appropriate to refer to some of the decisions rendered by High
Court are:
(1) Pattayee Amma vs. Manickam Gounder 4;
(2) Papammal vs. Dharman; 5
(3) S.S. Manickam vs. Arputha Bhavani Rajam. 6
1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237:
1987 All WC 627.
2 K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.
3 I (1987) DMC 226 Bombay.
4 AIR 1967 Madras 254.
5 1970 (2) MLJ 81.
6 1979 Madras Law Weakly (Cri) 143.
166 Law of Maintenance
1 1981 TLNJ 7.
2 AIR 1937 Rangoon 67.
3 K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.
Disabilities depriving maintenance—Necessity of consummation of
marriage 167
end. The wife was therefore held to have become entitled to claim
maintenance and will continue to do so, so long as she remains
unmarried and she is unable to maintain herself. 1
Maintenance by others
Considering the fact that when in the course of the evidence it
was made clear that the wife had absolutely no means to maintain herself
and as she being maintained by others from the day she was neglected by
the husband the Courts are justified in recording the finding that she is
unable to maintain herself and then awarding maintenance. On a mere
technical ground High Court will not interfere under Section 482 Cr.P.C.
to set aside the order of maintenance. 4
1 Gurmit Kaur vs. Surjit Singh @ Jeet Singh, 1996 (1) SCC 39: I
(1996) DMC 354 SC.
2 C.B. Joshi vs. Ganga Devi, AIR 1980 All 130: 1980 Mat LR 217:
1994(2) Cur CC 279.
3 Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 MP.
4 P. Lakshminarayana vs. P. Lalithamma, I (1992) DMC 308 AP.
168 Law of Maintenance
between the parties. It was held that one fails to see how could this
factor go to affect the validity of marriage; although it may be a ground
for other relief’s under the law. 1 Therefore non-consummation of
marriage does not affect claim of maintenance.
Nullity marriage
The right of a wife for maintenance is an incident of the status or
state of matrimony. Section 24 of the Hindu Marriage Act, which
provides for maintenance pendente lite and expenses of proceedings,
clearly applies to all proceeding under the Act. An order for maintenance
pendente lite and costs of the proceedings can, as the initial words of the
section clearly state, be made in any proceeding under the Act, viz. for
restitution of conjugal rights, judicial separation, divorce or nullity of
void and voidable marriage. 2
It was therefore held that the Family Court was not right in taking
into consideration the allegation of fraud and deception made in the
petition for the purpose of deciding the prayer of interim alimony. The
fact that there is a strong possibility of the marriage being declared as a
nullity is no ground for declining even the basic right to claim interim
alimony and expenses of the litigation. It was also held that the Family
Court was clearly wrong in postponing the determination of interim
alimony till the trial of the main petition. The trial Court cannot
postpone its decision on the application for interim maintenance and
costs till the disposal of the main issue in the substantive matter. 3
Section 11 of the Hindu Marriage Act specifically declares any
marriage contravening any one of the conditions specified in Clauses (i)
(iv) and (v) of Section 5 to be null and void and on a petition presented
by either party to the marriage against the other will be declared by a
decree of nullity. Clause (i) of Section 5 of the Hindu Marriage Act lays
down that for a lawful marriage, the necessary condition is that neither
party should have a spouse living at the time of marriage. Obviously,
therefore, a marriage in contravention of this condition is null and void.
If, therefore, the finding of the Subordinate Judge on the ex parte
evidence of the petitioner is sustained, then the marriage between the
petitioner and opposite party be held to be null and void. There is no
doubt that the expression “wife” used in Section 125 of the Code means
Ornaments
Section 24 does not envisage the substitution of the customary
ornaments for the income nor can the Court refuse to make a grant
maintenance for support simply because the wife can pull on for some
time by selling the ornaments. 3
Ownership of property
Mere possession of land by the father of wife does not mean that
the daughter by virtue of a right for share in the property can be
presumed to have sufficient means to maintain herself. A mere existence
of a share in some property and the contingency of securing that is not
conclusive of the question whether she had means to maintain herself. 4
Paternity of child
There is presumption against bastardy. When dispute about
paternity raised without displacing the presumption by proving that the
father had no access during the period in question, it was held that there
is no provision in Indian law for such test and therefore paternity test
could not be directed. 1
Pre-existing order
A mere pre-existing order under the Criminal Procedure Code for
payment of maintenance does not oust the jurisdiction of the Civil Court
to allow maintenance pendente lite under Section 24 of the Act. 2
Prior marriage
Only legally wedded wife is entitled to get maintenance
allowance under Section 125 of the Code from her husband. When apart
from the pleadings of the petitioner herself that her husband was earlier
married to some other woman, there was positive evidence of the
judgement of divorce showing that husband was earlier married to
another woman and that this marriage was subsisting when he allegedly
married the petitioner, it was held that under these circumstances, the
withdrawal of this allegation by the petitioner, even if allowed, would be
no consequence. 3
Proof of divorce
Where in proceeding started under Section 488(old): 125(new),
Cr.P.C. by a Mohammedan wife against her husband for her
maintenance, the husband states in the written statement that he had
already divorced his wife and the Court comes to the conclusion that
divorce pleaded is not proved, then such a statement in the written
statement itself operates as an expression or declaration of divorce by
talak, and the divorce would be held to take effect at least from the date
on which the written statement was filed by the husband. The reason for
the decision is that the statement made by the husband orally in the
deposition or in his written statement that he had divorced his wife in an
acknowledgement of talak alleged to have effected by him already and,
therefore, the divorce would be held to have effect at least from the date
upon which the acknowledgement in made. 4 Another view is as under:
Proof of marriage
In order to succeed in her claim for maintenance from the
opposite party the petitioner/wife has to establish that she is legally
married wife. Where the factum of marriage is denied, it must be proved
satisfactorily that there was a valid marriage the onus being on the wife,
applying for an order under Section 125 Criminal Procedure Code. It is
also an accepted position that in a proceeding under Section 125
Criminal Procedure Code the Magistrate is not expected to go into the
question relating to the validity of the marriage. Living as husband and
wife and being treated by other as such, is quite sufficient for award of
maintenance under the section. In other words, strict proof of marriage is
not necessary in a proceeding under Section 125 of the Criminal
Procedure Code. The Standard of proof of marriage need not be so high
as in a proceeding under Section 494, Indian Penal Code for bigamy or a
proceeding for divorce, Court have also accepted that even the opinion
expressed by conduct of persons having special means of knowledge is
sufficient for the purpose of satisfying the requirement of Section 125,
Criminal Procedure Code. 1
The standard of proof required to establish a valid marriage for
claiming maintenance under Section 125 of the Criminal Procedure Code
cannot be the same as required in matrimonial cases on in criminal cases
where the matter involves punishment of the accused on proof of
marriage. In a claim for maintenance the applicant has to make out a
prima facie case to support that claim. If sufficient material is brought
into indicate the factum of marriage the power under section 125 of the
Criminal Procedure Code can be exercised. 2
The question of appreciation of evidence in this regard and the
defence of invalid marriage on account of prior marriage, was dealt with
as under:
‘Leaving aside the minor discrepancies in the statement of
Shrimati Surjit Kaur which have been highlighted by the Counsel
for the appellant with a view to distract the Court from evaluating
the entries with regard to the birth of a son Ex.P-1, voters lists
Ex.P-3 and photograph of the plaintiff defendant and a child
Ex.P-4, no material evidence has been referred to by which it
could be deducted that factum of marriage as set up by the
plaintiff did not take place. One cannot lose sight of the fact that
entry with regard to the birth of a son (plaintiff No. 3 Azad
Singh) is duly recorded in the register of Municipal Committee,
Ropar, on 31.1.1967 as entry long before the filing of the suit or
even before Shrimati Surjit Kaur was alleged to have been turned
out from the house of the defendant. Even entry in the voters list
Ex.P-2 for the year 1970 record plaintiff No.1 and defendant as
wife and husband. Not only this, photograph Ex.P-4 shows
plaintiff No.1, and defendant along with a child who is stated to
be plaintiff No. 3. Defendant when appeared as a witness has
admitted the correctness of this photograph. Defendant has also
admitted that plaintiff No. 1 appears along with him in this
photograph. This evidence itself belies the stand of the defendant
that they were never married and so never lived as husband and
wife. Even the case set-up by the defendant that in fact he was
married to one Champa who hailed from Chhalware in Madya
Pradesh was found without any substance by the trial Court. on
re-appraisal of this evidence, I also find no infirmity in the same.
In fact the trial Court has threadbare discussed the testimony of
Apex Court, it has become a law of the country and it can always be
relied on by the Courts without much evidence. 1
Once the marriage procedure and paternity of child was admitted,
it does not lie in the mouth of husband/father to contend that no valid
marriage came into existence as essential rites were not performed. 2
Refusal to co-habit
The husband had a liability to maintain his lawfully married wife
and children under Section 125 of Criminal Procedure Code. The
husband cannot escape that liability to maintain by alleging that he was
harassed by his wife and by resorting to the subterfuge of filling Hindu
Marriage Petition for restitution of conjugal right in a Civil Court. In the
facts and circumstances of the case, it is found that the petition for
restitution of conjugal rights was filed with ulterior motive to avoid the
liability to pay maintenance to the wife under Section 125 Criminal
Procedure Code. It was observed that looking at the record of the
husband, it is quite possible that to avoid paying maintenance to the wife
under this order, he may agree to take the wife for some time and torture
or drive her out later. Further the wife would be fully justified in
refusing to live with the husband in view of the allegations that he is
living with another woman and has an issue by her. In law, the position
is absolutely clear that a wife can refuse to live with the husband and yet
claim maintenance under Section 125 of Criminal Procedure Code, if he
has re-married or is living in adultery with another woman. A wife has a
right to exclusive association of her husband under filed and unpolluted
by any other woman. 3
If there was a reasonable apprehension of physical ill-treatment in
the mind of the wife was a just ground on her part for refusal to live with
her husband despite the offer made by him now. She could not be
deprived of the maintenance by reasons of such refusal. Under such
circumstances, it must be held that the husband had neglected to
maintain his wife. 4
Once, there is a clear finding of the Civil Court on the point of desertion,
neglect and cruelty which is answered in the negative, it is not open for the
Criminal Court to give different finding on the same issue. The findings recorded
by the Civil Court are binding on the Criminal Court for the purpose of deciding
application for maintenance under Section 125 of Criminal Procedure Code.1
It has been held that T.B. is contagious disease. It might have created a
sort of apprehension in the mind of the wife, by living together under the same
roof as husband and wife and subjecting to conjugal rights she may also contract
the disease. Even if no obligation of conjugal rights is complied with by the wife,
living under the same roof is not free from the danger of contracting the
contagious disease.2
When evidence is available that the wife was not only ill-treated by her
husband but dowry demand was also made, his inhuman behaviour is so patent.
Further, the case of the wife through her father, that she was sent away from the
matrimonial home, only on that score, has also been accepted. There is no
gainsaying of the fact that only because of the conduct of the husband the wife
had become mentally deranged and became incapacitated. It was held that the
behaviour of the husband is nothing short of wilful neglect and the wife and the
minor daughter have a right to be maintained by the husband, who is under a
legal as well as moral obligation to do so.3
In another case it was seen that, the main problem of the husband was the
failure on his part in respect of sexual life. The wife however did not
immediately rushed to severe her marital relations but had waited for sufficiently
long time to see whether there would be any improvement in the potency of the
husband. Having found no hope, she chose to live separately from the husband.
Therefore, it was concluded that the wife having tried all means the marital
relations but having found that it was impossible for the husband to gain potency,
she had chosen to live apart from him. In these circumstances it was held that
there was sufficient ground for the wife to live separately.4
In one case the learned Magistrate in his order found that the
petitioner left her matrimonial home without any sufficient reason and
she refused to live with her husband, the opposite party. In coming to
such a finding he considered the evidence of the wife in its proper
perspective and also noted from her deposition that she was willing to
live with her husband if the opposite party stay at Calcutta with her. The
learned Magistrate also observed that the factum of torture on her by the
opposite party and his family members was disclosed to the neighbouring
Bengali families who reside within the same campus. The appraisal of
evidence by the learned Magistrate was not interfered with in revision by
learned Session Judge as he found that there was no perversity in such
appreciation of the evidence by the learned Magistrate and as there was
no other illegality in the matter. It was held that in revision reappraisal
of the evidence as recorded by the learned Magistrate is not permissible
under the law unless such appraisal is perverse and illegal. The
Revisional Court below did not find any perversity or illegality in
appraisal of the evidence or any illegality in the judgment of the learned
Magistrate, therefore the order was affirmed. 1
Even if there be custom of second marriage in the community of
the petitioner and opposite party and that has been performed in
accordance with the customary law but the fact remains that the second
marriage has taken place and the first wife is justified in refusing to live
with her husband who had taken second wife as living with second wife
itself amount to cruelty. Therefore, the question of validity of marriage
is not relevant for the purpose of correct justification of separate living. 2
In one case the husband admitted the status of the opposite party
as his wife. He also admitted that after going to her father’s house in
‘Dasahara’ 1990 (i.e. about eight months after the marriage) she was
staying there all along. But he has not stated that he has provided any
maintenance to her during all those years. Husband had not produced any
convincing evidence that he made any sincere effort to restore the
conjugal life. Contention of the husband that wife refused to join him
because his sister rebuked her (petitioner) by saying ‘Kala Jivi’ held to
be highly improbable. In that context, if petitioner’s evidence will be
assessed then the factum of ill-treatment and cruelty on account of dowry
demands held to be true and believable. 3
Normally a pregnant wife will not leave the house of the husband
on her own and more so when the husband is Professor, having good
income and sufficient means to maintain her and child. She delivered a
female child as said earlier and there is no material that the respondent
after the birth of the child at all went to Ajmer to see the child atleast
once. The wife filed an application for restitution of conjugal rights. A
decree for restitution of conjugal rights in her favour was made and even
than no efforts have been made by the husband to see that his wife
returns to him. In these circumstances it was observed as under:
‘If the husband does not care for his wife, does not care to
maintain his minor daughter, it is a case of neglect or refusal to
maintain his wife and child. A look at the reply to the application
under Section 125 Cr.P.C. will show that the respondent has even
gone to the extent of levelling the allegations of unchastity
against the appellant. A look at the additional pleas of the reply
will show that it is clearly mentioned therein that three letters by
same unnamed lover of the appellant were received at the address
of the father of the respondent, two of them have been destroyed
and third was produced, but was not proved. Though the name of
the lover is not named in the letter was received, it was read in
the presence of the respondent and the appellant had admitted that
she was having illicit relation with that man. The allegations of
this nature, there can be no dispute amount to mental cruelty.
Thus, even if during the proceedings under-Section 125 Cr.P.C.
the respondent would have offered that he is willing to maintain
the appellant his life in case she lives with him. All that was
required by law was that the offer should have been considered
and still an order for maintenance can be made. The learned
Judge, Family Court surprisingly did not take into consideration
this aspect to the matter merely on the ground that allegations of
cruelty as contained in the application are not proved and arrived
at a conclusion that is no proof of neglect or refusal to maintain
the appellant by the respondent and, therefore, dismissed the
application u/Sec. 125 Cr.P.C. as for as the appellant is
concerned. This approach of the learned Judge to us does not
appear to be correct. As said earlier, a Hindu wife, more so
pregnant one and more so one who belongs to poor family having
no income of her does not dessert her husband who is of better
status in the society, is well placed and there must be some
reason for her to leave the house of the husband. From the facts
on record, we are satisfied that it is a case of refusal or neglect by
the respondent to maintain his wife and, therefore, the learned
Judge, Family Court was wrong in rejecting the application of the
appellant so far as maintenance to her is concerned.’ 1
When the plaintiff has satisfactorily proved that during the
relevant period, the defendant/husband was having sexual relationship
with another lady Padmavati in the same house, under Section 18(2) of
the Hindu Adoptions & Maintenance Act, the plaintiff was entitled to
1 Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, 1996
CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4) CCR 68:
I (1996) DMC 115 SC: 1996 (1) SCC 554.
2 Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 CrLJ
1089: 1974 CAR 400: 1974 Cr LR (SC) 408.
182 Law of Maintenance
1 Rajathi vs. C. Ganesan, AIR 1999 SC 2374: 1999 CrLJ 3668: 1999
CrLR (SC) 451: 1999 SCC (Cr) 1118: 1999(3) Crimes 189: 1999(2)
Raj LW 313.
Disabilities depriving maintenance—Refusal to co-habit 183
justification. It was also held that the fact remains that even after filing
of the application for maintenance, the non-applicant/husband took the
plea that the applicant/wife is able to maintain herself as she is taking
tuitions and also doing job work in typing, rather than offering to
maintain her. Thus It was held that this, itself indicates that the non-
applicant/husband chose to refuse and neglect to maintain the
applicant/wife. 1 The treatment with cruelty is itself a sufficient ground
for the wife to decline to live with the husband even if he offered to keep
her and to maintain her. 2
The right to be maintained by the husband stems from
performance of marital duty. It is only when the Court inter alia comes
to the finding that the wife claiming maintenance had been prevented
from performing the marital duty by the husband that she could be
awarded maintenance. When it is found that the wife declines to live
with husband without any just cause and there is no evidence of ill-
treatment by the husband, wife is not entitled to maintenance. In this
case the husband even sent a registered notice to the wife asking her to
say with him but she refused to accept the notice. Wife was not able to
establish that she had been neglected by her husband. As a matter of fact
she was living with her parents of her own accord, therefore she was held
to be not entitled for maintenance allowance for herself. 3
The effect of non-reconciliation on the part of the parties should
not be blown out of all the proportions. In this case, the wife had
deserted the husband and consequently a decree of divorce was granted.
In a Court of law it would be almost impossible to find out the true facts
regarding the justification of the conduct of wife. She was required to
live with the parents of the husband. She would not able to prove fact for
justifying her conduct. The fact remains that she was required to live in
strange place without the support of the persons who could adjust with
her despite her defects. In that situation refusal of wife to live with the
husband may have some justification which she was unable to prove in
accordance with law. Consequently, the Court may objectively consider
conduct of the husband too along with that of wife or coming to just
conclusion. The Court cannot take one sided view of the matter. Wife
cannot permanently live with her parents for the simple reasons her
parents are likely to out live her in normal circumstances where she will
go. She is, therefore, entitled to maintenance and it is the legal duty of
Second marriage
Instances are not infrequent when the wife’s application for
maintenance under Section 125, Criminal Procedure Code is contested on
the plea that her marriage being the second marriage of the opposite party
and took place during subsistence of the earlier marriage it is null and void
and she is not eligible to get any maintenance under the provision. In such a
case it is incumbent on the part of the Magistrate to consider the question
carefully and record a finding whether the first marriage of the opposite
party was a valid marriage and was subsisting by the date of the second
marriage. On the finding depends the maintainability of the application
under Section 125, Criminal Procedure Code and the competence of the
Magistrate to award compensation to the applicant wife.5
The attempt to exclude altogether the personal law applicable to
the parties from consideration has to be repelled. The section has been
enacted in the interest of a wife, and one who intends to take benefit
under sub-section (1)(a) has to establish the necessary condition, namely,
that she is the wife of the person concerned. This issue can be decided
only by a reference to the law applicable to the parties. While the
legislature has considered it advisable to uphold the legitimacy of the
paternity of a child born out of a void marriage, it has not extended a
similar protection in respect of the mother of the child. The marriage of
the appellant must, therefore, be treated as null and void from its very
inception. It was urged that the appellant was not informed about the
husband’s prior marriage when she married him who treated her as his
wife, and, therefore, her prayer for maintenance should be allowed. But
it was held that the wife cannot rely on the principle of estoppel so as to
defeat the provisions of the Act. So far as the respondent treating her as
his wife is concerned, it was held that it is of no avail as the issue has to
be settled under the law. It is the intention of the legislature which is
relevant and not the attitude of the party. 1
Merely by reason of the fact that the first wife is living, the
second marriage will not be null and void; because the expression
‘spouse’ as used in Section 5(i) of the Hindu Marriage Act means
lawfully married wife or husband. Therefore, it necessarily follows,
before deciding the validity of otherwise of the second marriage. The
solemnization of the first marriage in due form has also to be
established. If the first marriage itself is void, either because of the
violation of the conditions in Clauses (iv) and (v) of Section 5 of the
Act, the parties to the marriage being within the prohibited degrees of
relationship or being sapindas of each other; or because of the non-
performance of the marriage in due form with essential customary rites,
the second marriage will not be null and void. Therefore, before the
second marriage was held to be null and void, the performance of the
first marriage with requisite conditions and essential customary rites and
ceremonies has to be established. 2
In another case it was found that the husband suppressed the fact
of the first wife living and on misrepresentation that she was dead, the
husband got married with the present wife and only, of late, just five
days prior to filing of the petition before the Court of Enquiry, the wife
came to know about the first wife of her husband living. On the basis of
material on record it was held that this had to be accepted since
absolutely no iota of evidence is made available from any quarter contra
to the effect that the first wife of the respondent was also living with
them, nor any attempt had been made on the part of the respondent in
proof of the same. Hence, It was held that the reason attributed for the
wife consenting to get married with the respondent has to be believed
and accepted under such circumstances. After all, the marriage held
between the parties could only be treated as a valid marriage, since the
fact of the subsistence of the first marriage and her suppressed on
representation that she was dead. Under these circumstances, the
marriage could only be treated void-able one, and the option of getting
the same declared void was left with the wife.
However, for the purpose of Section 125 of Criminal Procedure
Code, the law is settled long back that the marriage in between the
parties though plays an integral part in deciding the question of
maintenance, even if the marriage strictly does not come to be proved, it
is sufficient if evidence is available to the effect that the parties have
lived together for a considerable time. As such, when it was established
that the wife had been living with the respondent for a considerable
period and continuously so as to give way for a child to be born, this
status of the wife itself was sufficient for the grant of maintenance not
only for her but also for her child the second petitioner. Therefore it was
held that the petitioner was the wife of the respondent and the other
petitioner was their legitimate child and the respondent was duty bound
to maintenance them. 1
In the decision of Vimala v. Veeraswamy, 2 the Supreme Court had
specifically observed that it was for the husband to prove that the
marriage was void due to subsistence of an earlier marriage and the
burden of proof of the earlier marriage shall be entirely upon the
husband. The relevant portion of the observation is as follows:
“Section 125 of the Code of Criminal Procedure 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. When an attempt is
made by the husband to negative the claim of the neglected wife
depicting her a kept-mistress on the specious plea that he was
already married, the Court would insist on strict proof of the
earlier marriage. The term ‘wife’ in Section 125 of the Code of
Criminal Procedure, includes a woman who has been divorced by
a husband or who has obtained a divorce from her husband and
has not remarried. The woman not having the legal status of a
1 Mallika vs. P. Kulandai, I (2001) DMC 354 Mad; See also Manulal
vs. Kunti Behera, I (1986) DMC 22 Orissa.
2 1991 (2) SCC. 375.
Disabilities depriving maintenance—Second marriage 187
1 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987
SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543:
1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.
2 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987
SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543:
1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.
Disabilities depriving maintenance—Second marriage 189
one case it was, however, urged that there was no legal evidence of the
second marriage and therefore the wife was not entitled to maintenance
on the ground that her husband had contracted a second marriage. It was
held that the evidence of the wife, her father and of a neighbour was
enough to prove that a lawful marriage had taken place between the
husband and the second wife. It was further held that as the wife was
justified in refusing to live with the husband, the latter was under a legal
obligation to maintain her. When he neglected to maintain her the High
Court was justified in passing the order for maintenance. 1
In order to be eligible to receive maintenance under Section 125,
Criminal Procedure Code the wife must establish that she is the legally
married wife of the opposite party or that after her marriage she has been
divorced and has not re-married. Under the provision in Section 11 of the
Hindu Marriage Act, 1955 read with those in Section 5 of the Act any
marriage solemnized after commencement of the Act shall be null and
void if either party has a spouse living at the time of the marriage. The
Calcutta High Court in the case of Kalyani Sen vs. Radhakant Sen, 2
taking a different view held that a second marriage is a voidable one, it
is valid and can be relied upon for the purpose of grant of maintenance
under Section 125, Criminal Procedure Code till it is annulled by a
decree in an appropriate proceeding under the Hindu Marriage Act.
The position has now has been settled by the Apex Court in the
case of Yamunabai Anantroa Adhav vs. Anantrao Shivram Adhav, 3
wherein the Court in categorical and unequivocal terms held that the
second marriage in such circumstances is null and void and cannot be
treated as voidable under Section 12 of the Hindu Marriage Act
notwithstanding the fact that the wife was not informed about the
husband’s earlier marriage when she got married him. A similar view has
been taken in the case of Manulal alias Manulal Behera vS. Kunti
Behera, 4 and in the case of Sri Ram Prasanna Dash v. Bhabani Devi. 5
Section 125 of the code of Criminal Procedure is meant to
achieve a social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply remedy for the
supply of food, clothing and shelter to the deserted wife. When an
attempt is made by the husband to negative the claim of the neglected
Second wife
The entire section 125 of Criminal Procedure Code, 1973 either
with reference to wife or children or father or mother is couched in
singular form. If the interpretation of the learned Magistrate is
considered in its setting, then only one child is entitled to maintenance,
and such interpretation of Section 125 Criminal Procedure Code, leads to
absurdity. Section 13(2) of the General Clauses Act, 1897 is as
follows:—“Words in the singular shall include the Plural, and Vice
Versa”. Therefore, the ‘wife’ occurring in Clauses (1) of sub-section (1)
of Section 125 Criminal Procedure Code, includes wives as also minor
‘child’ in Clauses (b) includes children. Therefore, it was held that the
order of the Magistrate in holding that the second wife is not entitled to
maintenance is clearly contrary to the provisions of Section 125 Criminal
Sufficient income
Where the wife in her examination admitted that she was working
as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it
was held that the object of Section 125, Criminal Procedure Code is to
prevent vagrancy, by compelling a person to support his wife or child, or
father or mother, unable to support itself. The maximum amount payable
under this Section is Rs. 500/- p.m. This amount is not intended for
leading a luxurious life. The powers of the Criminal Court under Chapter
IX are limited in scope and orders passed thereunder are subject to any
final adjudication that may be made by a Civil Court between the parties
respecting their civil rights and status. Since the wife is getting Rs. 735/-
p.m. which is sufficient to keep her from starvation. She is not entitled to
claim maintenance from the husband. 3
Temporary Employment
In regard to the interim maintenance provided in Section 24 of
the Hindu Marriage Act, 1955, the Court’s approach to the problem
should be that a marriage do facto carries with it the right to interim
maintenance in matrimonial proceeding. The only consideration which
should weigh with the judicial mind is whether the applicant is possessed
of sufficient means for his or her support and necessary expenses of the
proceeding. The word ‘sufficient’ is of some significance and it connotes
that the income of the applicant must be such which would be sufficient
for a normal person for his or her sustenance as well as to meet the
necessary expenses of the proceeding. It does not contemplate ‘some
income’ by the applicant howsoever meagre it may be, would disentitle
the application from getting relief under Section 24 of the Act. At the
same time, the Court should also bear in mind another principle, namely,
that the order should not work out as a penalty crippling the party from
prosecuting the proceeding. The Court undoubtedly exercises a wide
discretion in these matters but the discretion is judicial and not an
arbitrary or capricious one. It is to be guided on sound principles of
matrimonial law and should be exercised within the ambit of the
provisions in the section and having regard to the object of the Act.
Keeping the aforesaid principles in view, it was held that a temporary
Unreasonably attitude
Taking Rs. 760/- to be the monthly income of the petitioner, it
was held that it will be in the fitness of the things if the wife and the two
children together receive Rs. 300/- for their monthly maintenance. It was
also held that the attitude of the wife in such case cannot be said to be
quite reasonable. She had made serious allegations against the husband
alleging the acts of criminality against him. Probably she is justified in
making those allegations. But the point noted by the court was that
inspite of her conviction relating to criminal tendencies of the husband,
she wants to keep herself wedded to him for all his life. The husband had
made a clear statement before the court that he was prepared to make
sufficient provision for the maintenance of his wife and children if the
wife was prepared to separate herself from the husband by a decree of
divorce by consent and to start a fresh life, thus allowing him to lead a
free life of his own. The wife did not accept this suggestion, whereupon
it was held that there was no reason, logic or rationale, for this conduct
of the wife. If she did not want to stay with the husband, she could not
be blamed for that. She wanted maintenance from the husband. She could
not be blamed even for that. But when the husband had made a
reasonable suggestion that she could get the same thing by allowing him
and her to live a life of their own by taking a divorce, it would have
resulted in freedom and consequent happiness for both of them. It was
held that just with a view that the husband should not be happy in his
future life, the wife wanted to continue to be unhappy herself. There was
no justification for this attitude of the wife at all. It was also held that
the wife had not shown that she was unable to maintain herself. No effort
is made by her to satisfy the Court in this behalf. Therefore a sum of
Rs. 100/- was held to be the maximum sum that should be awarded to the
wife by way of monthly maintenance. 1
Validity of marriage
The Kerala High Court in a case where the claim for maintenance
of the wife was disputed on the ground that there was no valid marriage
between the parties because the husband had earlier married and that
marriage was subsisting on the date of his marriage with the applicant-
wife in that case. After considering the observations of the Supreme
Court in the case of Yamunabai (supra), the Kerala High Court in the
case of Raman Pillai v. Subhadra Amma, 2 has held:
“This means, a lady who wants to claim maintenance from the
man should establish that she has lawfully married him in
conformity with the provisions contained in Section 5(1) of the
Act as well. In other words, in the absence of proof that the
marriage between the parties was not void on account of the
contravention of the provisions contained in Section 5, the lady
will not be entitled to claim maintenance Marriage of a woman,
even if it in accordance with Hindu rites, with a man, having a
spouse living at the time of the marriage, is a nullity in the eye of
1 Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC
26 Bombay.
2 1989 Cri.LJ 1274.
194 Law of Maintenance
law. The lady will not get the status of a legally wedded wife.
She is accordingly not entitled to the benefit of Section 125 of the
Code of Criminal Procedure.”
It would thus means that the spouse approaching the Court under
Section 125 of the Cr.P.C. will have to establish at trial that there was a
lawful marriage between the spouses and that there was no impediment
existing at the relevant time which would invalidate their marriage. 1
It is not necessary for the wife that the she must prove that she
was legally wedded. Strict and literal construction should not be
preferred. 2
There is no rule of Hindu Law sanctioning early marriage of male
children and there is no duty upon parents or guardians to marry their
sons or male wards before they attain majority. The practice of early
marriage of Hindu minors may be sanctioned by usage; but it has been
disapproved by the passing of the Child Marriage Restraint Act of 1929. 3
The child marriage has not been invalidated by the provisions of
the Hindu Marriage Act. Section 11 of the Act deals with void marriages.
That section relates only to marriages held in contravention of Clauses
(I), (iv) and (v) of Section 5. That section does not refer to Clause (iii) of
Section 5. Section 12 refers to voidable marriage. That sections deals
only with marriages in contravention of the conditions specified in
clause (ii) of Section 5. The section does not also deal with clause (iii) of
section 5. Thus the marriage in contravention of Clause (iii) of Section 5
is neither void nor voidable under the provisions of the Hindu Marriage
Act. The only other relevant provision is Section 18 of the Act, which
provides for punishment for contravention of the conditions specified in
Section 5(iii) also. The punishment will be imprisonment, which may
extend to 15 days or with fine, which may extend to Rs.1,000/- or both.
Thus, the only provision which will come into play in the event of
contravention of Section 5(iii) is Section 18 of the Hindu Marriage Act,
1955 and nowhere does the Act declare the marriage to be illegal or
invalid or void. 4
The only provision attracted in Sub-section 5(iii) of the Hindu
Marriage Act, 1955, which by virtue of Section 18 thereof at best can
1 Anuj Sharma vs. Suresh Kumar, AIR 1998 Del 47: 1997 (3) AD 504
(Del): 1997 (67) DLT 127.
198 Law of Maintenance
wife, and one who intends to take benefit under sub-section (1)(a) has to
establish the necessary condition, namely, that she is the wife of the
person concerned. This issue can be decided only a reference to the law
applicable to the parties. It is only where an applicant establishes her
status or relationship with reference to the personal law that an
application for maintenance can be maintained. 1
The Court arrived at a finding that the marriage of the plaintiff
with the defendant as null and void. It was held that the judgment, order
or decree in exercise of matrimonial jurisdiction which confers upon or
takes away from any person any legal character or which declares any
person to be entitled to any such character not as against any specified
person but absolutely could be rendered only by a competent Court
having jurisdiction and it is a decision in rem and not in personem alone.
Both the Courts adverted to the contentions raised by the husband to the
factum of his marriage with the plaintiff as being null and void and in
view of the contravention of clauses (i) of Section 5 of the Hindu
Marriage Act. But the findings of the Courts that the petition under
Section 18 of the Hindu Adoptions & Maintenance Act as being
maintainable was held to be not legally sustainable. In view of the fact
that the plaintiff whose marriage was a nullity, she cannot be construed
as a wife under Section 18 of the Hindu Adoptions & Maintenance Act
for the purpose of seeking maintenance. Section 18 contemplates a valid
marriage solemnized under the Act and not a marriage of nullity as
envisaged under Section 11 of the Hindu Marriage Act. In view that, the
precondition for the plaintiff to claim maintenance under Section 18 of
the Hindu Adoptions & Maintenance Act is that her marriage should be a
marriage de hors Section 11 of the Hindu Marriage Act. The question of
any further declaration by the plaintiff that her marriage as being null
and void would not arise since her marriage is non est as in the eye of
law and she could not be characterized as a wife for the purpose of
entitlement to the maintenance under Section 18 of the Hindu Adoptions
& Maintenance Act, 1956. 2
If the consent of the spouse was obtained by fraud as to the nature
of the ceremony as to the nature of the material fact or circumstance
concerning the respondent, the marriage can be annulled. It is not
necessary that consent is obtained by practicing fraud at the time of
solemnization of the marriage. It is enough if it was obtained even at an
earlier stage. In these circumstances It was held that the consent of the
husband was obtained by fraud and misrepresentation as to material facts
concerning the respondent and that he is entitled to a decree for
annulment under Section 12(1)(c) of the Act. 1
In view of the specific finding that the question of marriage of
plaintiff with defendant as being null and void the Civil Court’s power to
adjudicate factum of maintenance under Section 18 of Hindu Adoptions
& Maintenance Act, 1956 cannot be legally sustained. Therefore it was
held that in all cases, where marriage is a nullity as envisaged under
clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act the
question of a wife claiming maintenance under Section 18 of the Hindu
Adoptions & Maintenance Act, 1956 would not arise. 2
A voidable marriage has to be regarded as good for all purpose
until annulled by a decree of nullity the Court. It is the option of the
parties to the marriage whether they want to declare the marriage a
nullity or not. A voidable marriage means that it was valid at the time it
takes place but subsequently, it becomes a nullity on certain facts
coming to the notice of one of the parties to the marriage and then that
party can get a declaration to the effect that the marriage is an nullity. It
cannot be said that the marriage was a nullity from the very inception so
as to say that the relationship of husband and wife did not come into
existence. When once the relationship of husband and wife is to be
accepted then either party can be granted maintenance in accordance
with provisions of Section 25 of the Hindu Marriage Act. 3
In one case it was held that assuming that the non-applicant was
below 15 years of age, the married was not void under Section 11 of the
Hindu Marriage Act. It may be that the marriage was voidable at the
instance of the applicant. Therefore if was held that if the marriage was
voidable at the instance of the applicant the marriage would continue to
be valid unless it was declared to be void by the appropriate court by
initiation of proceedings under the relevant provisions of the Hindu
Marriage Act. 4
Working wife
In one case the opposite party admitted to be working as an
Anganbadi worker and getting salary of Rs. 500/-, but learned Magistrate
after taking into consideration her circumstances as well as the
1 Brijinder Bir Singh vs. Vinod alias Parminder, AIR 1995 P&H 42.
2 Basappa vs. Siddagangamma, ibid.
3 Hashish Sharma vs. Sushma Sharma, I (1996) DMC 303 Raj.
4 Babarao vs. Shobhatai, II (1985) DMC 161 Bombay.
200 Law of Maintenance
necessities has granted a sum of Rs. 300/-. Petitioner has not led any
evidence to prove that income of Rs. 500/- of the opposite party was
sufficient to sustain her livelihood. On the other hand, opposite party has
stated in her evidence that due to insufficiency of income she is unable
to sustain her livelihood. In that respect, she was not at all cross-
examined. It was therefore held that, learned Magistrate was justified in
granting the monthly maintenance @ of Rs. 300/- in favour of the
opposite party. 1
An applicant is not entitled to maintenance if she is a working
lady, even if, she is not attending the office for one reason or the other.
However, she was held to be entitled to litigation expenses to the tune of
Rs. 1000/-. It was further observed that the wife may either apply for her
transfer to the concerned authorities on compassionate grounds and the
Court expressed hope that if a good case for transfer is made out, she
would be accommodated because according to her, the husband was not
permitting her to attend the office. 2
Chapter 5
Duty to maintain
SYNOPSIS
Introduction....................................201 Duty of son..................................... 209
General ..........................................203 Duty to maintain children.............. 210
Burden of proof ..............................205 Effect of support of relatives.......... 211
Daughter in law .............................206 Nature of obligation ...................... 212
Determination of neglect................207 Refusal to join................................ 212
Duty of married daughter ..............207 Scope of obligation of husband ..... 213
Introduction
The ancient Hindu Society has always placed the wife on a high
pedestal. It is said that, ‘the house (building) is not the house. The
mistress of the house is said to be the house. A house without the lady of
the house is worse than a dreary forest’.
Manava Dharma Sastra or the Institutes of Manu with the Gloss
of Kulluka, comprising the Indian system of duties, religious and civil,
translated by Sir Willian Jones and collated with the Sanskrit Text by
Grayes Chammey Hughten, Esq. Third Edition, Chapter 3 verses 55 to 60
read as follows:—
55. Married women must be honoured and adorned by their
fathers and brethren, by their husbands, and by the brethren of
their husbands, if they seek abundant prosperity.
56. Where females are honoured there the deities are pleased; but
where they are dishonoured, there, all religious acts become
fruitless.
57. Where female relations are made miserable, the family of him
who makes them so, very soon wholly perishes; but, where they
are not unhappy, the family always increases.
58. On whatever houses the women of a family, not being duly
honoured, pronounce an imprecation, those houses, with all that
belong to them, utterly perish, as if destroyed by a sacrifice for
the death of an enemy.
59. Let those women, therefore be continually supplied with
ornaments, apparel and food at festivals and at jubilees, by men
desirous of wealth.
202 Law of Maintenance
General
It is the duty of husband especially under Hindu law to maintain
his wife. A matrimonial alliance which is nurtured and sustained through
love and affection is like a tender plant which withers away in the
absence of sun and water for its growth. In the words of Sprat.
“A great proportion of the wretchedness which has embittered
married life, has originated in a negligence of trifles. Connubial
happiness is a thing of too fine a texture to be handled roughly. It
is a sensitive plant. Which will not bear even the touch of
unkindness; a delicate flower, which indifference will chill and
suspicion blast. It must be watered by the showers of tender
204 Law of Maintenance
1 Manali Singhal vs. Ravi Singhal, 1998 (6) AD 749: 1999 (77) DLT
700: AIR 1999 Del 156: 1998(6) AD(Delhi) 749: 1999(77) DLT 693:
1999(1) DMC 355: 1999 RLR 133: 1999(1) RCR(Civil) 436.
2 translated by Sir Willian Jones and collated with the Sanskrit Text
by Grayes Chammey Hughten, Esq. Third Edition, Chapter 3
verses 55 to 60
3 Meera Nireshwalia vs. Sukumar Nireshwalia, AIR 1994 Mad
168 (DB).
Duty to maintain—Burden of proof 205
Burden of proof
It is not possible to take a view that to constitute desertion under
Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act, not
only desertion but desertion with the animus to do so has to be
established by the plaintiffs in a suit for maintenance. It has to be
noticed that Section 18 of the Maintenance Act has been enacted
exclusively for the benefit of the Hindu wife, who might be required to
live separately from her husband; and Clauses (a) of Sub-section (2)
thereof provides that if a Hindu wife lives separately from her husband,
for that reasons alone she would not forfeit her right to claim
maintenance in case her husband is guilty of desertion without
reasonable cause and without her consent or against her wish or wilfully
neglecting her. The Parliament has taken care to make clear what in the
context the expression ‘desertion’ means. The expression ‘that is to say’
of abandoning her after the word ‘desertion is of great significance. 2
The expression ‘desertion’ as a ground for divorce between the
parties to the marriage, need not be identical to that of the expression
‘desertion’ in the context of the claim for maintenance by the wife,
deserted or neglected. For the purpose of ‘divorce’ under Section 13 of
the Marriage Act, the petition could be either by the husband or wife;
and the desertion could be either by the husband or the wife. Divorce
cuts away the matrimonial tie completely; and the desertion to be used
as a ground for such a relief should be of a higher degree; naturally it
has to be desertion coupled with the animus to do so. That appears to
have been the legislative policy behind the rigidity in the matter of
proof in regard to the expression ‘desertion’ as used in Section 13 of
the Marriage Act in contrast to the expression used in Clauses (a) of
Sub-section (2) of Section 18 of the Maintenance Act. If that rigidity by
reading into the clause the word ‘animus’, which the Legislature has
not chosen to incorporate, is insisted upon, it would defeat the very
purpose of the legislation for protecting the interests of the abandoned
and neglected wives. 1
Daughter in law
Under Section 19 of the Hindu Adoptions & Maintenance Act,
1956, the liability of the father-in-law to maintain the widowed
daughter-in-law arises only if he is in possession of coparcenary
property. No liability arises when the father-in-law is not in possession
of coparcenary property. The statutory liability of the father-in-law to
maintain the widowed daughter-in-law in the event of his having
coparcenary property passed on his death to the heirs inheriting his
property. This is what is provided under Section 22. If there is no
statutory liability for the father-in-law to maintain his widowed
daughter-in-law the heirs taking his property cannot be saddled with
any such obligation. Section 22 does not create any independent
statutory obligation for the father-in-law to maintain the widowed
daughter-in-law. The statutory obligation is created only under Section
19 and if he dies leaving no coparcenary property his heirs inheriting
his property are under no legal obligation to maintain the widowed
daughter-in-law. A harmonious construction of Section 19 to 22 can
only lead to such interpretation. Otherwise we see the anomaly of a
father-in-law having no coparcenary property and having no legal
obligation to maintain his widowed daughter-in-law during the lifetime
and yet, after his death, his heirs taking his property are statutorily
made liable to maintain the daughter-in-law. The legislature would not
have intended such an anomalous situation and an interpretation leading
to an illogical conclusion should not be favoured. It follows that as the
father-in-law died without leaving any coparcenary property, his heirs
inheriting his self-acquired property, namely, the appellant is under no
obligation to maintain the widowed daughter-in-law. 2
Determination of neglect
When husband failed to examine himself to prove that divorced
wife was duly maintained, neglect by husband can be inferred and claim
of maintenance can not be denied on the ground of divorce. 1
1 Bai Tahira vs. Ali Hussain Fissalli Chothia, AIR 1979 SC 362: 1979
CrLJ 151: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC) 616.
208 Law of Maintenance
Duty of son
Whether a son is liable to maintain his mother during the life time
of his father, the law appears to be in complete agreement with the Hindu
social morality. Now both our statutory law and case law on this point
fully recognize the obligation of the son to maintain both during the life
time of the father and even thereafter his mother. In Mulla’s Principles
of Hindu Law (Paragraph 548) it is stated:
1 Noor Sabba Khatoon v. Mohd. Quasim, 1997 CrLJ 3972: 1997 AIR
(SC) 3280: 1997 CrLR (SC) 536: 1997 SCC (Cr) 924: 1997(3)
Crimes 106: 1997(2) Ker LT 363: 1997(2) Pat LJR 110.
212 Law of Maintenance
Nature of obligation
Under the Hindu law the liability to maintain others arises in a
two-fold manner:
(a) from the existence of a particular relationship independent of
the possession of any property,
(b) on possession of property.
In the first category fall the cases of the liability to maintain a
person’s wife, minor sons, and unmarried daughters and aged parents.
Here the obligation is personal and is brought into existence by the
relationship. In the other category are those where the liability is
dependent on the possession of coparcenary property. Assuredly the
liability to provide for the maintenance of the disqualified heir under the
Hindu law would fall under the latter category also, i.e., it is not
confined to the particular relationships which cast the obligation to
maintain. Thus a brother would have to be maintained out of the joint
property where he is disqualified from claiming partition. No doubt, the
texts deny him the right to partition but that is not the subject matter of
the discussion here. If the right to be maintained is traceable to his right
to the property in which he is excluded from participating in full, it
would not be a violent inference to hold that he has an incipient and
vestigial interest in that property which is not capable of being asserted
against other coparceners, but when there is none entitled to enjoy it as
coparcener, blossoms into a full right. 2
Refusal to join
The right to be maintained by the husband stems from
performance of marital duty. It is only when the Court inter alia comes
to the finding that the wife claiming maintenance had been prevented
from performing the marital duty by the husband that she could be
awarded maintenance. When it is found that the wife declines to live
1 Radha Kumari vs. K.M.K. Nair, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
2 Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349:
1965(2) MadLJ (SC) 122: 1965(2) SCJ 638.
Duty to maintain—Scope of obligation of husband 213
with husband without any just cause and there is no evidence of ill-
treatment by the husband, wife is not entitled to maintenance. 1
In this case, it was noticed that the husband had even sent a
registered notice to the wife asking her to stay with him but she refused
to accept the notice. She was therefore held to be not entitled to
maintenance. 2
Chapter 6
Persons entitled to maintenance
SYNOPSIS
Introduction....................................215 Non working husband .................... 229
Aspiring wife ..................................215 Parents of married daughter ......... 230
Children .........................................216 Right of divorced wife.................... 231
Concubine ......................................216 Right of Hindu widow .................... 231
Coparcener ....................................217 Right of husband ............................ 232
Daughter-in-law.............................218 Right of illegitimate son ................ 232
Divorced wife .................................219 Right of unmarried daughter ......... 233
Father of illegitimate child ............221 Siblings .......................................... 233
Finding of legitimacy .....................221 Statutory right................................ 233
Husband .........................................222 Unborn child.................................. 234
Illegitimate child ............................223 Unmarried daughter ...................... 234
Major children ...............................225 Widowed daughter ......................... 235
Masculine includes feminine ..........226 Widowed daughter-in-law ............. 235
Minor children ...............................228 Wife................................................ 236
Mother ............................................228 Wife from void marriage ............... 238
Introduction
Every person is not entitled to maintenance. It only certain class
of persons who have been considered socially and economically weaker
and therefore been provided maintenance from different sources. The
source of this legislation is generally custom, shastric law, as also social
practices etc. as prevail in the country.
Aspiring wife
The non-applicant did not claim to be the legally wedded wife of
the applicant Suresh and claimed relief of prohibitory injunction against
non-applicantthat he should not marry elsewhere. In view of the
aforesaid fact, it was held that the non-applicant is not entitled to get any
maintenance under any law for the time being in force during the
pendency of the suit filed by the non-applicant. As such, the impugned
order of the Trial Court awarding maintenance pendente lite is prima
216 Law of Maintenance
facie illegal and in excess of the jurisdiction vested in the Court and
deserves to be set aside. 1
Children
It is the duty of father to maintain the children. Where wife is
carrying on business, she is prima facie not entitled to maintenance but
children are entitled to maintenance. 2
The need of the child is as much the need of the mother, because a
mother is not expected to neglect the need of the child and is on the contrary
expected to meet the need of the child even at the expenses of her own
maintenance. It was therefore held that there is no doubt that while granting
maintenance under Section 24 of the Act to a wife not only her own need
for maintenance of herself would be considered but if she had a child to
look after, need of the child shall also be taken into account.3
The word ‘wife’ or the ‘husband’ should not be interpreted in
such a strict and literal sense so as to rule out grant of maintenance to
the children who live with the wife and are dependent upon her. When
the children live with the wife and in the very nature of the
circumstances, the requirement of wife will include the requirement of
minor children dependent on her and living with her. That is borne out
from the reading of Section 24 of the Hindu Marriage Act, 1955. 4
Concubine
If a man and a woman choose to live together and indulge into
sex no such married status can be conferred automatically by their so
living upon such a woman. No legal status of a wife she is entitled to
in the eyes of law and society. Both law and society treat such woman
either a concubine or a mistress of that person with whom she is so
living. The two may also agree to live together to satisfy their animal
needs. But such a union is never called a married nor a woman leading
such life is bestowed with the sacrosanct honour of a wife. No marital
obligations accrue to such a woman against her husband. Secondly
such a life is called adultery. The applicant has to prove her status
under personal law before she can legally be entitled to maintenance
from her spouse. 5
In one case the alleged husband claimed that he was not married
to her at all. She was working in his house as a cook and in the process
an illicit intimacy developed between them. They started living together
as husband and wife due to the aforesaid illicit relationship. It was held
that it was not enough to declare that they are married person or
applicant was married to the opposite party. While denying the
maintenance, it was observed as under:
‘The applicant has proved, by evidence, that she initially was
married to one Devi Das and from his house she had eloped and
lived, in between with several persons before becoming intimate
with the applicant. This in law is not enough to declare any
woman a legally wedded wife. Wife means a legally wedded wife
according to Section 125, Criminal Procedure Code. There ought
to be married according to religion or customs prevalent amongst
their community. A marriage carries a legal social or religious
sanction behind it. It can be broken only in the manner prescribed
either by law, religion or custom prevalent amongst the parties to
any such marriage. It provides a guarantee and also a sense of
security to the woman why enters into such nuptial bondage
especially. In the present case there is evidence on record, as
admitted by her, that she was turned out of the applicant’s house
by his wife after the administration of beating to her. 1
A Brahmin woman and her illegitimate son of Sudra father are
entitled to maintenance from the Estate after the death of father. The
claim of maintenance cannot be defeated on account of caste of the
woman. This position has remained unaffected by provisions of Hindu
Adoptions and Maintenance Act, 1956. 2
Coparcener
In the case of an ordinary joint family property, the members of
the family can claim four rights:
(1) the right of partition;
(2) the right to restrain alienations by the head of the family
except for necessity;
(3) the right of maintenance;
(4) the right of survivorship. 3
Daughter-in-law
Under the Hindu law there is a moral obligation on the father-in-
law to maintain the daughter-in-law and the heirs who inherit the
property are liable to maintain the dependants. It is the duty of the Hindu
heirs to provide for the bodily and mental or spiritual needs of their
immediate and nearer ancestors to relieve them from bodily and mental
discomfort and to protect their souls from the consequences of sin. They
should maintain the dependants of the persons of property they
succeeded. Merely because the property is transferred by gift or by will
in favour of the heirs the obligation is not extinct. When there is property
in the hands of the heirs belonging to the deceased who had a moral duty
to provide maintenance, it becomes a legal duty on the heirs. It makes no
difference whether the property is received either by way of succession
or by way of gift or will, the principle being common in either case. The
moral obligation of a father-in-law possessed of separate or self-acquired
property to maintain the widowed daughter-in-law ripens into a legal
obligation in the hands of persons to whom he has either bequeathed or
made a gift of his property. 3
Under section 19 of Hindu Adoptions and Maintenance Act one
of the conditions for the father-in-law to maintain the daughter-in-law is
that the daughter-in-law is not able to maintain herself from the estate of
her parents. A clear finding is necessary whether her parents have estate
sufficient to maintain her and on what circumstances, she is unable to
maintain herself or by her parents. For this purpose parents of plaintiff
are required to be heard. This is possible if they are made parties to the
suit. In their absence any finding will not bind them. Where, from the
estate of the parents, the daughter-in-law can maintain herself, question
of obligation of father-in-law does not arise. It is also to be found out
Divorced wife
Right of divorced wife to seek maintenance is not affected under
the new Code wherein dissolution of marriage makes no difference on
right to seek maintenance. 2
The word ‘wife’ in the sub-section does not have the extended
meaning including a woman who has been divorced. In other words, the
wordings contained in the said sub-section “if they are living separately
on mutual consent” would apply to the wife who is not divorced. After
divorce there is no question “mutual consent to live separately”.
Therefore, Section 125(4), Criminal Procedure Code, does not operate. 3
After divorce the concept of living together being not enforceable
under law, custom or practice, the factum of separate living does not by
itself disentitle the divorce to claim for maintenance under Section 125
of the Code. Thus on a logical corollary it can well be recorded that the
fact of desertion on which a decree of divorce was granted against the
wife i.e., the divorced wife, the fact cannot be extended to post decree
period. The factum of divorce and the change of the status from wife to
divorced wife is a supervening circumstance which the Court,
adjudicating the claim of maintenance under Section 125 of the Code,
should not ignore. In this case it was held that no doubt, learned
Magistrate did not specifically record about the supervening
circumstance, but it is apparent from the impugned order the
notwithstanding the separate living of the opposite party, her claim for
maintenance was allowed because she is a divorced wife. 4
Even accepting that an agreement was executed by both the
parties willingly, that would only show that there is a divorce on mutual
consent. Section 125(4), Criminal Procedure Code will be applicable to
the parties only when they decide to live separately by mutual consent
temporarily. Once the marriage is dissolved, mutual consent for living
1 Raj Kishore Mishra vs. Meena Mishra, AIR 1995 All 70 (DB).
2 Bai Tahira v. Ali Hussain Fissalli Chothia and another, 1979 CrLJ
151: AIR 1979 SC 362: 1979 SCC (Cr) 473: 1978 CAR 418: 1978
CrLR (SC) 616.
3 K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras:
1999(1) HLR 3.
4 Jashelal Agrawal @ Jain vs. Puspabati Agarwala, I (2000) DMC 592
Orissa: 1999(1) HLR 175.
220 Law of Maintenance
Finding of legitimacy
In one case the admitted facts were that the appellant and the
respondent were close relations and not strangers before marriage. They
were married on 11-5-1973 and the girl child was born on 5-12-1973.
The respondent did not divorce the. appellant immediately after the child
birth or even two or three months later but he divorced her only on 16-
10-1974. The child birth took place in the house of the respondent
himself and hence there is no question of the birth of the child not being
known to the respondent immediately. It was held that if the appellant
was pregnant even at the time of the marriage she could not have
concealed that fact for long and in any event the respondent would have
come to know of it within two or three months of the marriage and
thereupon he would have immediately protested and either discarded the
appellant or reported the matter to the village elders and relatives and
sought for a divorce. On the contrary the respondent had continued to
lead life with the appellant in a normal manner till the birth of the child.
Even the confinement appears to have taken place in his house as
otherwise the child’s birth would not have been registered in his village.
The respondent had not disowned the child immediately after its birth or
sent away the appellant to her parents’ house. Such would not have been
his conduct if he had any doubt about the paternity of the child. On the
sole ground that the child had been born in about 7 months’ time after
the marriage it cannot be concluded that the child should have been
conceived even before the respondent had consummated the marriage.
Giving birth to a viable child after 28 weeks’ duration of pregnancy is
not biologically an improbable or impossible event. 2
In “Combined Textbook of Obstetrics and Gynaecology” by Sir
Gugald Baird 3 it is reported as under:—
“In the case of Clark v. Clark (1939) 2 All ER 59 an extremely
small baby, born alive 174 days after last possible date when
intercourse with the husband could have taken place, and which
Husband
Section 125 of the Code gives effect to the natural and
fundamental duty of a man to maintain his wife, children and parents so
long as they are unable to maintain themselves. In this context, it may be
stated that a married daughter is also not excluded from her moral
obligation to maintain her parents. The very object this Section is to
provide a speedy remedy against starvation for the persons named
therein. The remedy as provided in Section 125(1) of the Code is,
however, open only to a wife or child either legitimate or illegitimate or
to the parents of male of female, as the case may be, who are unable to
maintain themselves. But by no stretch of imagination, it can be said that
Illegitimate child
In view of the conclusive proof of legitimacy of a child born
during the continuance of a marriage in the absence of proof of no
access, the petitioner was entitled to the benefit of Section 112 of the
Evidence Act. Wisely enough and in view of the gynaecological science,
Section 112 of the Evidence Act contemplated the duration of pregnancy
of 280 days or 9 months and 10 days. On this understanding it was
observed, in view of the facts and circumstances of the case, as under:
‘Therefore, the maximum outer period of the pregnancy or
gestation in case of the petitioner should have been till 21 st June,
1988. In such a situation it was possible for the respondent No. 1
to inquire and produce evidence to show that the petitioner was
born after June, 1988 to put him out of the period of gestation and
the evidence under Section 112 of the Evidence Act. Even then
both the science and law in regard to period of gestation appears
to be something different. Two hundred and eighty days as the
possible duration of pregnancy appears to be not an invariable
rule. Actually it may be more and in several cases, the birth could
be beyond that period. Although fertilization generally takes
place at the time of coitus, there will be some interval between
insemination and fertilization when the sperm during its journey
meets the ovum. The medical evidence appear to be that such
interval may be as long as 21 days. The child born after 305 to
346 days after the last sexual intercourse or the access for sexual
of the dear ones after long periods of separation from home. The
psychological and sociological problems which sometimes lead to
domestic disturbances, have been, in recent times, the subject-matter of
studies by researchers in the respective disciplines. Woman, whose
intrinsic virtue and normal fidelity could be beyond question, may,
occasionally though extremely rarely, have a fatal fall along the steep
and slippery slopes of temptation. While one may sympathise with the
victim, it will, at the same time, be unjust to make an innocent person
pay for such a lapse of the other spouse. 1
In one case it was held that the perusal of the evidence led by the
husband itself shows that he was only harbouring suspicion against the
wife on the basis of some anonymous letters received by him. In his
written statement, he had not alleged any facts or circumstances which
led him to believe that suspicion either. For the first time in his
deposition, he has stated that on a particular day, he returned home
suddenly and had seen his wife with a stranger. Firstly, he has not seen
anything incriminating. Only a person was sitting. But this fact is not
alleged in his written statement. Then, he has adduced evidence to show
that she was moving out and attending cinema with one Rokde. This
specific fact is also not stated in his written statement. Moreover, no
questions to that effect were asked to the applicant during her cross-
examination on his behalf. In view of this fact it was held that it was
more than obvious that the husband had started doubting the chastity of
the wife on the basis of these anonymous letters received by him and had
therefore, driven her out of the house and had not cared for the
maintenance of the wife and children. The reasoning’s of the trial Judge
was held to be sound and rational and the view taken by the trial Court
that presumption which arises for the legitimacy of the children under
section 112 of the Evidence Act has not been rebutted by the husband
was held to be justifiable. 2
Major children
The rule of law must run close to rule of life. The idea of granting
maintenance is to see that the wife and children get a standard of living
on par with the husband. Whether it is a full meal or half a meal, each
one is entitled to a share. If a son reaches the age of eighteen, it does not
mean that as from that date he has to starve. That is not the law. It only
means that as from the age of eighteen the law takes note of the fact that
he has capacity to earn. But if he still depends on his mother either for
study or for shelter, that fact will have to be taken into account, when a
mother (of wife) is given maintenance. He is not given any maintenance.
But the one who looks after him gets it. 1
Another view is that a child is entitled to maintenance as long as
it is minor. Exception has been carved out in Sub-section (3) which
covers an unmarried daughter, but as far as a major son is concerned
there is no exception. A major son will not come within the purview of
Section 24 of the Act, to be entitled to maintenance from the father. 2
Under the new Code only minor children unable to maintain
themselves would come under this section and in the case of major
children only those who are suffering from some mental or physical
defect or injury and are unable to maintain themselves are eligible to get
the benefit under Section 125, Criminal Procedure Code. 3
As per Section 125 Criminal Procedure Code, it is clear that the
maintenance can be awarded only to minor children under Section 125
Criminal Procedure Code, whether married or not, when they are not able to
maintain themselves. Only in special circumstances the maintenance can be
awarded even after attaining the majority where such child is, by reason of
any physical or mental abnormality or injury unable to maintain herself.4
male and female, and expression “his” has to be read as “her” also. In the
same way, under Clauses (c) expression used in legitimate or illegitimate
child, exception has no doubt been made to it clearly, by expression not
being a married daughter which is clearly indicative of the fact that the
person who has sufficient means if he has got legitimate or illegitimate
child, male or female, who has attend majority, who has physical or
mental abnormality and is unable to maintain himself or herself, liability
is of the person concerned to maintain with exception to the case of a
married daughter who has attained majority. But, in case of minor
children, no exception has been provided. In view of Section 8, when
“he” or “his” is used, it has to be read including in itself “she” or “her”.
If we look to Sub-section (3) as well, the Legislature has used the word,
“if any person so ordered” means where a person having sufficient means
be a father or mother neglects to maintain his or her children, legitimate
or illegitimate, minor or major, with exception to Clauses (c) and he has
been ordered to maintain them without any sufficient cause, fails to
comply with the order, the Magistrate has been given power to issue
warrant. When Legislature has not used the expression of “man” but used
“person”, it includes “male” or “female” and it cannot be read to be
referring to “man” only. The provisions of Section 125 are social welfare
legislation. The object of such a provision has been considered to be that
such persons who are not able to maintain themselves, they should not be
left to the agony of starvation, frustration or of destitution and in case of
female destitution, which may lead to prostitution. To avoid such a
situation, the Legislature has enacted this provision. A social welfare
legislation has to be interpreted keeping in view the object of the
provision. If a female person is earning and she has got minor children to
maintain and she refuses to maintain the minor children, be it be male or
female then definitely she is liable to maintain them as the Legislature
has not used the expression “man” or “woman”, but “person”, it has to be
taken that person includes both male or female, “his” may also be
interpreted as “her” in view of the above provisions of the General
Clauses Act as well as provision of he I.P.C referred to above. In sub-
section, the legislature has used the expression “any person”. So a
petition for maintenance under Section 125 is maintainable against again
the mother irrespective of the fact that mother belongs to feminine
gender. Here “person” includes both “male” and “female” and “his” is to
be read as “her” also. 1
Minor children
The obligation of father or mother of unmarried daughter or
minor son to maintain them is not joint but several. If they are not
maintained adequately by either of them, they can certainly make good
the deficit by seeking maintenance from the other. The question of
double maintenance does not arise in such a situation. Further if the
minors sue either of the parents for maintenance it is open to either of
them to contend that they cannot sue him or her seeking maintenance
since they were maintained by the other till then. That is so because, the
liability of each of the parents to maintain their unmarried daughters or
minor sons is not joint but several. 1
Mother
If the sons effect a partition between themselves, the mother is
entitled at the time of partition to a share equal to the share of a son
which she receives in lieu of maintenance. The joint family in the instant
case has been severed by the filing of the suit. The applicant is entitled
to her share in lieu of the maintenance which she is otherwise
entitled to. 2
Right of maintenance against the property does not entitle a share
to the wife/mother in the joint family property in lieu of maintenance.
The fact that she had, as on 15.2.1970, a right to maintenance against
this property which later crystallised into the allotment of this property
in her favour on 24.9.1970 is not sufficient. Neither under the customary
Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu
Succession Act, 1956 nor under the Hindu Adoptions & Maintenance
Act, 1956 is there any provision which gives a share to a wife in the joint
family property held by her husband nor to a mother in the joint family
property allotted to her son in a partition. 3
Bearing in mind the general social purpose of Section 125
Cr.P.C., it was reasonable to construe the different word used in it as per
their natural meaning and there existed no justification for construing
them in any special sense in which they were understood under any
particular personal law. The natural meaning of the word ‘mother’ as
contained in any standard dictionary was a female parent i.e. a woman
who has given birth to a child. But, then, it was significant that the
words ‘father’ and ‘mother’ have been used in the same context in the
particular part of the Section. In the case of the word ‘father’, there
being nothing repugnant in the ‘subject’ or ‘context’, there was no
reason to think that the word did not have the same meaning as it had as
per its definition contained in Clauses (20) of Section 3 of the General
Clauses Act. As per its definition in the said Clauses, ‘father in case of
anyone whose personal law permits adoptions shall include an adoptive
father’. It was true that there was no similar definition of the word
‘mother’ contained in the General Clauses Act. But, then, again, there
was no reason to think that the word ‘mother’ as used in the particular
part of the Section did not have as wide a meaning as the word ‘father’
used in the said part of the Section had. There was no reason to think
that when an ‘adoptive father’ is entitled to claim maintenance from his
‘adoptive son’ under the provision an ‘adoptive mother’ should not be
similarly entitled to do so. However, the case of a ‘step mother’ was
altogether different. As already mentioned above, as per its natural
meaning, the word ‘mother’ meant a female parent i.e. a woman who has
given birth to a child. As per the said meaning it did not include a ‘step
mother’. 1 Again, as in the particular context the word ‘mother’ received
colour from the word ‘father’, its natural meaning got extended so as to
include an adoptive mother’. But, then, there was nothing in the
particular context which could provide a reason for extending the
abovesaid extended meaning of the word ‘mother’ any further so as to
include a ‘step mother’ also within its compass. 2
When Section 125, Cr.P.C. provided that a ‘mother’ unable to
maintain herself was entitled to claim maintenance under the said
section it meant that a ‘natural’ ‘mother’ i.e. the woman who had
given birth to the child and an ‘adoptive mother’ i.e. the woman who
had taken the child in adoption were alone entitled to make such a
claim against the ‘natural son’ and the ‘adopted son’ respectively. A
‘step mother’ was not entitled to make any such claim against her
‘step son’ under the said Section. 3
otherwise capable of earning his living should stop earning the living and
start depending on earning of his wife. 1
In One case if was found that the husband had incapacitated
himself by stopping the running the auto-rickshaw on hire. It was
observed that it was a well-established maxim of Anglo-Saxon
jurisprudence that no person can be allowed to incapacitate himself. The
maxim is applicable to the case of earning husband. A person who
voluntarily incapacitates himself from earning is not entitled to claim
maintenance from the other spouse. 2
1 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987
CrLJ 977: AIR 1987 SC 1100: 1987 CAR 87: 1987 (2) SCC 278:
1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553.
2 Alavi vs. Safia, II (1992) DMC 311 Kerala.
3 Alavi vs. Safia, ibid.
232 Law of Maintenance
are living frugally widow also must be content with the barest necessities
of life. The Shastraic Injunction that the widow’s life should be one
austerity and semi starvation is not a legal injunction and ought not to be
considered at all. 1
Hindu widow is not bound to reside with the same relatives of her
husband, the relatives of her husband have no right to compel her to live
with them and she does not forfeit her right to property or maintenance
merely on account of her going and residing with the family or
separately or leaving her husband’s residence from any other cause than
unchaste and improper purposes. Unless there is waiver or abandonment
of her right to maintenance by the widow she is entitled to maintenance
from the death of her husband. As rule, widow cannot claim arrears of
maintenance for the period her husband’s family unless she was kept
under circumstances of extreme penury and oppression. However, she is
entitled to arrears from the time, she change her residence, and under no
circumstances can the right be post-dated from the institution of suit for
maintenance. The amount of maintenance is liable to be increased with
the increase in the value of the estate or the cost of living or decreased
with the reduction in the value of the estate or its income due to cause
beyond the holder’s control. 2
Right of husband
The husband was mentally and physically well bodied person.
He had a skill of a particular business. There was no handicap for him
to earn bare minimum to support his livelihood. Merely because his
business is closed, it cannot be held that the he has no source to earn.
Since his wife was in the employment, the husband cannot make
himself wholly dependent on her income through a device of Section
24 of the Hindu Marriage Act, 1955. In absence of any handicap or
impediment to earn, to grant maintenance to such able bodied person
equipped with skill would promote idleness. It is opposed to spirit of
Section 24 of the Act. 3
Siblings
The father or mother unable to maintain himself or herself can
claim maintenance from the son or daughter, as the case may be. None of
the Clauses (a) to (b) of Sub-section (1) relate to claim by a brother or a
sister. Therefore, claim of maintenance by brothers and sister has no leg
to stand. 4
Statutory right
In order to constitute a joint family, it is not always necessary
that there should be two male coparceners. Even prior to the Hindu
Succession Act, 1956, in a joint family property a wife or other female
members were entitled to maintenance under the Hindu Women’s Right
to Property Act, 1937. This Act introduced an important change in law
relating to the rights of women succession, which came into force from
April 14, 1937. This Act gave at least a limited right to property to
certain classes of the women members of the joint family. This limited
1 Mothey Anja Ratna Raja Kumar vs. Koney Narayana Rao, AIR 1953
SC 433: 1952 SCJ 507
2 Sumitra Devi v. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
PatLJR 11: 1985(2) Rec Cr R 61.
3 Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC
3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
4 Saudamini Tripathy vs. Pramila Dibya, II (1995) DMC 492 Orissa.
234 Law of Maintenance
right has been converted to a full right as per section 14 of the Hindu
Succession Act. 1
Unborn child
Application on behalf of an unborn child is not maintainable
because no refusal or neglect on the part of father to maintain such child
can be proved or proved or inferred. Moreover, due to natural or
unforeseen circumstances, the birth of a child alive cannot be taken for
granted. Thus, due to such like contingencies the filling of application on
behalf of the child still in the womb of the mother would introduce
vagueness in such like proceedings and such was not the intention of the
legislature in enacting this provision providing for speedy maintenance
allowance in order to save the wives, children or parents from becoming
destitute. It was further held that no doubt, it will result in hardship to
the minor child if the order of cancellation of his maintenance allowance
is upheld, yet all the same there is no option but to do so because the
application on his behalf was not maintainable till he was born, although
the mother had claimed maintenance allowance on behalf of the unborn
child in the original application. It was however held that the mother can
file a fresh application on behalf of the minor child. 2
Unmarried daughter
Under the Hindu Adoption & Maintenance Act, 1956 it is the
obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself. In one case, the wife had no income of her own, it
was held that it was the obligation of the husband to maintain her and her
two unmarried daughters one of whom is living with wife and one with
him. Section 24 of the Hindu Marriage Act, 1955 no doubt talks of
maintenance of wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since wife is maintaining the eldest unmarried daughter, her right
to claim maintenance would include her own maintenance and that of her
daughter. This fact has to be kept in view while fixing the maintenance
pendente lite for the wife. 3
Widowed daughter
Maintenance by a man of his dependants is, with the Hindus, a
primary duty. They hold that he must be just, before he is generous, his
charity beginning at home; and that even sacrifice is mockery, if to the
injury of those whom he is bound to maintain. Nor of his duty in this
respect are his children the only objects, co-extensive as it is with the
family whatever be its composition, as consisting of other relations and
connections, including (it may be) illegitimate offspring. It extends
according to Manu and Yajnavalkya to the outcast, if not to the
adulterous wife; not to mention such as are excluded from the
inheritance, whether through their fault, or their misfortune; all being
entitled to be maintained with food and raiment. 1
A destitute widowed daughter has a right of maintenance against
her brothers after the death of her father when she could not get
sufficient provision from her deceased husband’s family for her
maintenance. The case law mostly relates to matters pertaining to the
rights of the daughter-in-law against her father-in-law and his estate.
The reason, still, for their reference is the unusual paucity of case-law
governing the rights of daughter against her father, brothers, etc. for
her maintenance. This scantiness of case law is more due to the
devotional character and spiritual belief of the Hindu population and
also due to the fact that the law-abiding nature of the Hindus have
precluded brothers from disputing the right of maintenance of their
widowed sister. More over, the analogy in the case-law with reference
to the daughter-in-law can be and in fact has been also extended to the
destitute widowed daughter. 2
Widowed daughter-in-law
The widowed daughter-in-law can claim maintenance from her
father-in-law only where she is unable to maintain herself out of her
property or our of estate of her husband, father, mother, son or daughter.
It is also provided that father-in-law shall be under no obligation to
maintain his daughter-in-law except in cases where there is some
ancestral or coparcenary property in his possession from which daughter-
in-law has not obtained any share. 3
In one case the father in law was in possession of co-parcenary
property in which daughter-in-law not obtained any share. Proviso (a) to
Wife
The Hindu Law as well as the common law caste a duty on the
husband to maintain the wife. In India, long before 1955, when the
Hindu Marriage Act was brought into force, such a duty of the husband
was given statutory recognition in the Indian Divorce Act, the Parsi
Marriage and Divorce Act and the Special Marriage Act. 3
Section 18 of the Hindu Adoptions & Maintenance Act, 1956 puts
an obligation on the husband to maintain the wife during her life-time. In
a case as given out in Sub-section (2) of Section 18, the wife shall during
her life-time. In a case as given out in Sub-section (2) of Section 18, the
wife shall be entitled to live separately from her husband and can claim
the maintenance. So the first and primary duty and obligation to maintain
the wife is on husband. Section 20 of the Act carves out an exception and
it will apply only in case where the husband is not alive or otherwise he
is not capable of or not having the source of income to maintain his wife,
then the obligation to maintain the mother may fall on the shoulder of the
son. Section 20 of the Act makes a provision for maintenance of children
and aged parents.
In this case the Trial Court mechanically read this provision and
was influenced by the fact that the mother is aged and the son who is
earning member has an obligation or pious duty to maintain her. Sub-
section (3) of Section 20 of the Act, 1956 was not taken into
consideration and looked into. Sub-section (3) of Section 20 of the Act,
1957 puts obligation on son to maintain his aged or infirm parents where
the parents are unable to maintain himself or herself or have not their
own source or properties. When it was not in dispute that the husband is
able to maintain his wife, it was held that section 18 and 20 of the Act,
1956 are to be read together and if are read so, Section 20 will come into
picture or can be put into service or applied only where the husband i.e.,
the father is unable to maintain his wife. Though these are socio-
economic provisions and same are to be read to extend the benefits to the
beneficiaries as provided, but where the husband is an earning member
having sufficient means to maintain his wife the liability to maintain the
mother under Section 20 of the Act cannot be fasten on son. 1
The Hindu Law recognised that the right of maintenance is a
substantive and continuing right and the quantum and maintenance is
variable from time to time. 2
definite nature. Thus, the suit of the plaintiff was rightly been decreed
for maintenance. 1
Chapter 7
Determination of income
SYNOPSIS
Introduction....................................240 Necessity of evidence ..................... 252
Absence of evidence .......................241 Necessity of finding about income . 253
Adverse inference ...........................241 Necessity of income ....................... 253
Appreciation of evidence................242 Non working husband .................... 254
Carry home salary .........................243 Ownership of land ......................... 254
Considerations ...............................243 Potential income ............................ 254
Cross Examination .........................245 Power under Hindu Adoptions &
Deductions from income ................245 Maintenance Act ............................ 255
Deduction for maintenance for parents Power under Section 151 Civil
.......................................................247 Procedure Code ............................. 257
Determination of income................247 Presumption of income .................. 258
Determination of resources............248 Prima facie case ............................ 259
Fixed assets ....................................248 Proof of employment ..................... 259
Income of wife ................................248 Renunciation of world ................... 259
Income from immovable property ..249 Step son.......................................... 260
Income of second wife ....................249 Suppression of income ................... 261
Income tax return ...........................250 Uncorroborated testimony of wife . 263
Joint family.....................................250 Unnatural conduct ......................... 263
Labourer ........................................252 Unskilled Labourer........................ 264
Medical Officer ..............................252 Vague denial .................................. 264
Introduction
While claim of maintenance is based on requirement of claimant
the quantum of maintenance depends upon various factors. The Income
of the person being saddled with the liability of maintenance is the single
most important factor because it is not the object of the law providing for
maintenance to create new class of paupers while taking care of the
earlier. Therefore the amount of maintenance has to be fixed in
proportion to the income. This chapter deals with the principles of
determining the income.
Determination of income—Adverse inference 241
Absence of evidence
In one case there was no evidence on record about the income of
the husband. According to the wife, the husband was working as a
mechanic, but no attempt had been made to lead any evidence about the
earnings of the husband. It was held that even if it is assumed that the
husband is working only as a labourer he would at least earn Rs. 12/- per
day and taking 25 days in moths as working days, he would be able to
earn near about Rs. 300/- per month. Under these circumstances, the
quantum of maintenance awarded to the wife at the rate of Rs. 125/ p.m.
was held to be a bit on higher side as if the husband has to pay Rs. 125/-
per month to the wife and Rs. 75 per month to the child only Rs. 100/-
would be left for himself. That definitely would not be sufficient to
maintain himself. Under these circumstances, it was held to be proper to
reduce the quantum of maintenance to Rs. 100/- per month. 1
Adverse inference
In one case the husband examined himself as a witness before the
Court below but did not depose a single word about his income.
According Section 106 of the Indian Evidence Act the amount of income
of the petitioner is a fact which is within his special knowledge and when
he himself does not tell about his income, it means that he is hiding the
truth. The wife stated in her examination-in-chief in that the income of
the petitioner was Rs. 3,000/- per month. A suggestion was given to her
in the cross-examination that the petitioner was getting only Rs. 1,500/-
per month as his salary. The husband was a railway employee and the
best evidence could be the document from his department. It was held
that he has withheld such a documentary evidence which he could have
obtained from his department and produced before the Court. Therefore,
his plea that he has getting a salary of Rs. 1,500/- per month was not
accepted. Secondly, even if the income of Rs. 1,500/- is accepted, there
is no evidence as to how many people he had to feed. The Court had
granted a sum of Rs. 350/- to each of the children which was held to be
not excessive. 2
In another case apart from the income of the disclosed house
properties the admitted fact which also appeared from the evidence was
that the husband built a residential house after the decision was given by
the High Court in earlier appeal granting interim alimony to the wife. On
behalf of husband, it was however contended that this house was not
tenanted and is used for residential purpose and the husband acquired
this properly after incurring loan of heavy amount from Life Insurance
Corporation of India. In this background it was held as under:
‘Even if it is so, the appellant did not disclose this properly nor
any papers or documents in support of the statement now made
before us. The appellant has also not produced the income-tax
return relating to his income from his properties and assets at the
material time. It is, however, contended that income-tax papers
are no longer confidential documents and the respondent could
have caused those papers to be produced from the authorities
concerned. We think, in the facts and circumstances revealed in
this case, it is not for the respondent but for the appellant to
produce the relevant paper including the income-tax assessment
of relevant periods to show his income. The appellant has also
failed to produce as noticed by the trial Court, his Bank accounts
or books of accounts and other material documents relating to all
his properties and income thereof. So, from the conduct of the
appellant it would be perfectly legitimate to draw an adverse
inference against him for his failure to produce the above papers
from his custody.’ 1
Appreciation of evidence
The affidavit of the wife stated that the income of the husband
during the year was Rs. 30,000/- out of which Rs.15,000/- was his share
of profits from the partnership business, while 15,000/- was the income
from the other business. It has also been stated on behalf of the wife
that there are houses and shops belonging to the husband, which were
fetching rental income but no details in respect thereof have been
supplied. In this case, however the court refused to rely on the
statement of the wife instead relied upon the Income Tax returns by
observing 2 as under:
‘The affidavit to the wife about the income of the husband being
Rs. 30,000/- per year cannot be accepted in view of the fact that
the husband has produced the income-tax authorities accepted the
income of the husband from the partnerships business and from
the other business as Rs. 9,134/- during the assessment year
1980-81. The husband filed an affidavit in the trial Court in
which he has admitted that his income was Rs. 9,000/- to 10,000/-
per year. The income-tax assessment order relating to the
assessment year 1980-81 has been produced, while we are
concerned with the subsequent assessment year 1980-81. It may
be considered that there might be slight increase in the income of
Considerations
In the case of Chameli vs. Gajraj Bahadur, 2 the Court held that in
fixing the maintenance under Section 488 the Court has to take into
consideration not only the needs of the applicant but also the paying
capacity and the circumstances of the person liable to pay maintenance.
1 Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982
Rajdhani LR 47.
2 1954 (55) CrLJ 19.
244 Law of Maintenance
Cross Examination
For the grant of maintenance under Section 24 of the Hindu
Marriage Act, 1955, apart from other thing, the income of the husband is
one of the very material consideration. In one case, the wife had alleged
that the husband was running his own business and was earning
Rs. 40,000/- to Rs. 50,000/- per year whereas the husband had denied
these facts and had alleged that he was only serving with a private firm
earning Rs. 400/- p.m. Thus there was a big gap between the income of
the husband alleged by the wife and stated by the husband alleged by the
wife and stated by the husband and in the circumstances, in order to
arrive at a correct decision about the income of the husband, the cross-
examination of the husband on the affidavit filed by him, was held to be
necessary. The learned District Judge had declined to do so on the
ground that such a course should be discouraged in miscellaneous
petition and that the prayer for cross examination was not bonafide but
High Court did not find force in either of these two grounds. It was held
that when there was such a divergence, there was no ground for refusing
cross examination on the affidavit merely on the ground that such a
course should be discouraged. On the other hand, this court has been
allowing the cross examination of affidavits in proceeding under Section
24 of the Act as would be clear from Bhanwarlal vs. Smt. Kamal Devi. 1
The other ground that the application was not bonafide was also held to
be not acceptable because it did not appear that as a matter of fact, that
the wife was trying to prolong the proceedings. What she was trying to
do was to arrange for the expenses which were payable to her under
Section 24 of the Act in order to contest the application filed by the
husband for divorce against her and if with that intention, she made
applications from time to time, even before filing her reply, she cannot
be held guilty of any malafides. 2
parents and brother, it was held that if the maintenance amount is fixed
at Rs. 2,500/- per month, the same would meet the ends of justice. 1
The husband had produced his salary certificate which showed
that he was drawing of salary of Rs. 8,868/-, from which he was getting
deductions to the extent of Rs. 6,107/- towards various saving and return
of house building loan. The wife was also looking after a minor son and
a minor daughter in additional to maintaining herself in the high prices.
It was held that the husband could not take advantage of the heavy
deduction from his salary as almost all these deductions were voluntary
and were primarily on account of savings or house construction loan
taken by the husband. 2
In another case the gross salary of the husband was Rs. 7228 and
after deductions, the take-home salary was Rs. 4169. The relevant
document also suggested that the deduction against advance was to the
tune of Rs. 936 and odd while there was a further deduction to the extent
of Rs. 2000/- towards ad hoc salary recovery. The circumstances under
which this particular deduction of Rs. 2000 was made from the gross
salary due for the month in question had not been explained by the
husband. Going by the particulars appearing in the role, it seemed that
this deduction of Rs. 2000/- was meant only for that month perhaps
against some excess drawl of pay and allowance made earlier. The Trial
Court, however, did not consider this respect of the matter and relied on
the figure mentioned in the column meant for net amount as the real
income of the husband in determining the quantum of enhancement. It
was undisputed that the husband was also a licensed draughtsman
holding some engineering degree or certificate. According to the wife,
the husband’s income from the professional service that he renders
towards his clients on account of this engineering degree or certificate is
Rs. 7000 to 10,000. The husband, however, denied the fact that he had
such income. According to the wife, the husband has another income by
running tutorial home. However the husband was not required to
maintain anybody else. Regard being had to the status of the wife and her
needs as revealed from the materials on record and upon consideration of
all the facts and circumstances which are relevant for the purpose of
determining the income of the husband, especially the fact that there was
a deduction of Rs. 2000 from the gross salary of the husband for the
particular month was towards the ad hoc salary recovery. 3
1 Sanjay Kumar Jain vs. Maya Jain, II (2000) DMC 768 MP.
2 Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H.
3 Dibyendy Mukherjee vs. Sudipta Mukherjee, 1999(1) HLR 216
Calcutta.
Determination of income—Determination of income 247
It has been held that when there was no evidence to the effect that
opponent-husband was contributing anything towards provident fund,
even assuming for a moment that the husband was contributing an
amount of Rs. 80/- per month towards provided fund, then also this
amount cannot be deducted. 1
Determination of income
The husband was healthy person of 26 years of age, therefore, a
young and healthy person, who claimed in his statement that he was
earning with his parents in the field and was also tending the animals. It
clearly shows, that he had joint earning with his parents. He was putting
in his labour. In that sense, the wife has right to claim maintenance from
those earnings. What would be the extent of those earnings should have
been decided by trial Magistrate or at least by the Session Court. Some
fair estimate on day to day expenses of life, could be made. The Session
Court dealt with the matter in a non-serious manner by merely referring
to the fact that no specific amount of earning has been stated. The legal
position has to be that, a person who is capable of earning has to earn for
his dependents i.e. for his wife and child. The evidence of the wife and
her witnesses was that the husband works on land and tends milk animal
with his parents. This was admitted by the husband also. It was held that
‘the Trial Magistrate should have assessed, what would be considered as
fair earning out of labour put in by this respondent. In such type of case,
a wife can hardly be expected to produce specific evidence of earning of
husband not it can be said that the labour of the husband is producing no
earning. In fact, an able person is expected to work for his wife. The
respondent is, after all living, eating and clothing himself. … … … The
matter is remanded back to the trial Magistrate to reach a conclusion of
the extent of the earnings of the husband, on the basis of the evidence
existing on this record and then to fix maintenance payable to the
petitioner-wife by the husband.’ 1
Determination of resources
Where a man or a woman is on supplementary benefit, then it
must be assumed that he is not working. That assumption cannot be made
in realistic terms in modern conditions. There are many persons who can
be shown to be working and earning money albeit they are on
supplementary benefit, and it is for the justice to make inquiry to see
whether that is the case or not. For those reasons, the appeal was allowed
to this limited extent and the matter remitted to the justices for further
inquiry in relation to the resources of husband. 2
Fixed assets
In one case the husband is not in possession of any of the
properties. No evidence whatsoever was adduced by the wife to show
that the husband in fact got any income either from his brother or his
other relatives who were in possession of those landed-properties. It was
held that it will be unfair to assume that the husband must have been
enjoying enough income from these landed properties, when the property
did not stand in his name nor there was any evidence to show that any
income was received by him from persons who were in possession of the
property. There was no evidence to show that there is any litigation
instituted against them by the husband to get income from the share of
the property. It was necessary for the wife to adduce evidence in the first
instance to show as to how much was the income that he was entitled to
receive from the property and further that he was in fact receiving such
income. There is a well recognized difference between the fact of receipt
of income and the right to receive the same. Merely proving that a person
has got the right to receive the income does not means that he is receipt
of the same. 3
Income of wife
Except making the allegations against the wife in regard to her
income etc. the petitioner had not placed any document or affidavit of
any other person to show that the wife was actually earning what had
been averred against her. It was held that even if it was so, the obligation
towards her own keep. It is something to which one should have regard
in the overall picture. 1
Joint family
In one case the husband was working in a Primary School and
was earning Rs. 400/- per month by way of salary. However, it appeared
that his salary is not the only source of livelihood for the husband. It had
come on record that there was a family business of printing press, which
is run by the family. The husband failed to prove that he had separated
from his family or there was any partition effected. He was the only son
of his parents. Therefore, it was held that the income from the printing
press will have to be taken into account, though the husband is on his
come to the conclusion that there is nothing on the file to hold that the
husband has got no independent source of income. 1
Labourer
The allegations made by the wife in her application under Section
24 of the Hindu Marriage Act, 1955 went unrebutted. Taking the facts
stated in the application under Section 24 of the Hindu Marriage Act,
1955 to be correct, it was found that husband was a man of substantial
means. Trial Court has erred in taking his monthly income to be
Rs. 1,000 only. Statutorily minimum wages payable to a labourer in
Punjab have been fixed at more than Rs. 800. under the circumstances,
Trial Court erred in fixing the income of the husband-respondent at
Rs. 1,000 per month. 2
Medical Officer
Any medical practitioner around the age of 37 and actually
having private practice, must be in receipt of income from that source
also. That such income would be substantial, (even when he is on leave;
during the leave period he can devote more time for private practice) is a
fair inference in the circumstances. It may also be noted that even in the
main petition, he had expressed his willingness to put the two children in
a boarding house. This was also taken as indicative of the financial
capacity of the husband even on his own showing. It was held that he
cannot grudge a payment direct to the wife, when he was prepared to pay
a boarding house, for their stay and other expenses. Regard being had to
the fact that the husband was in the medical profession and was having
private practice and was in receipt of income from immovable property,
which thus remain uncontradicted, it will be safe and reasonable to come
to the conclusion that he in receipt of a sufficiently high income. It was
therefore held that the capacity of the husband to maintain the wife and
children cannot be disputed. 3
Necessity of evidence
Mere fact that the wife has not been able to lead any evidence
with regard to the means of her husband, could furnish no justification
for the Session court to remand the case. The Session Court ought to
1 Gurmail Singh vs. Bhuchari, AIR 1980 P&H 120 (DB): 1980 Rev LR
171: 1980 Marriage LJ 367: 1980 Cur LJ (Civil) 193.
2 Surita Singh vs. Mahabir Singh, II (1991) DMC 409 P&H.
3 Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
Determination of income—Necessity of income 253
have decided the case on the basis of the evidence led and already
on record. 1
Necessity of income
Under law, the burden initially lies in the first place upon the
wife to show that the means of the husband are sufficient. But, if the
initial onus is discharged, the husband is not relieved of the obligation to
maintain his wife on the ground that the wife is having means to support
herself by her own labour or that the wife is having able and willing
relatives to maintain her. Merely because she refuses to earn does not
mean that she is not entitled to maintenance. So far as the wife is
concerned, her potential earning to capacity is not a relevant
consideration. The word ‘means’ in the section does not signify only
means such as real property or definite employment. It a man is healthy
and able bodied, he must be considered to have the means to support his
wife and he cannot be relieved of the obligation on the ground that he is
unemployed. The words “sufficient means” includes the capacity to earn
money and if a man is capable of earning money, he has to earn the
means to maintain his wife, child or parents. The possession of property
is not at all a criterion for awarding maintenance. It is independent of
possession of property. It a person is capable of doing labour, the fact
that he is not earning anything is not at all the criterion for not
awarding maintenance. 3
Ownership of land
A poultry farm was being run in the land of the husband himself
and, therefore, he cannot simply withdraw from the partnership unless it
was discontinued. Secondly the husband was owning land which would
show that the husband was having sufficient income from other sources
to be able to purchase the said land. The possible sources of other
income were not at all consider or even touched in the judgment of the
Session Court. The Sessions Court has simply considered the source of
income from the salary which the husband was getting. In that view of it
was held that the learned Additional Session Judge was justified in
reducing the amount of maintenance granted by the Trial Court from
Rs. 500/- to Rs. 400/- per month. 2
Potential income
In Mohammed Ayub vs. Jaibul Nissa, 3 the learned Judge of the
Allahabad High Court has observed as followed:—
“It may be mentioned here that is assessing the means of a
husband the court is not confined to taking into account his actual
earning for the time being. There may be cases where an able
the pendency of the suit for grant of maintenance, which may take
decades to attain finality, the wife in the first instance be forced to face
starvation and then subsequently is granted maintenance from the date of
the filing of the suit, if she is fortunate enough to survive till then. I feel
that such a view will be against the very intent and spirit of section 18 of
the Act. Even though there is no specific provision in the Act for grant of
maintenance pendente lite, the Court is amply empowered to make such
orders as may be necessary in the ends of justice. It is a trite proposition
of law that a court empowered to grant a substantive relief is competent
to award it on interim basis as well, even though there is no express
provision in the Statute to grant it. Power to grant interim maintenance is
incidental and ancillary to the substantive relief of maintenance
envisaged in section 18 of the Act and if the ends of justice so warrant
the court is competent to grant it in a suit for maintenance. 1
In the case of Rama Chandra Behera vs. Smt. Snehalata Dei, 2 a
Bench of Orissa High Court held:
“We agree that there may be cases where taking the extra
ordinary aspects into consideration, the Court may proceed to
exercise inherent powers to grant interim relief. It is not
appropriate to set limitation on count’s inherent powers by
interim relief. It is not appropriate to set limitations on court’s
inherent power by indicating circumstances where it can be and
where it cannot be exercised”
The power to make an interim order for maintenance pending an
application under Section 18 of the Act is implicit in the section. Such a relief
must be held to be ancillary and the power would be necessary corollary to
the power of the Court to entertain the application for substantive relief.
There have been a series of decision of this Court taking the aforesaid view
which was held to be in consonance with the spirit of the law.3
The absence of a specific provision in the Hindu Adoptions &
Maintenance Act, 1956, is immaterial and that the civil Court has
jurisdiction to grant interim maintenance. 4
However in a case involving Muslim Law it has been held that
the nature of the suit for restitution of conjugal rights is different from
1 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993 (3)
AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR 69
(N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR 577.
2 AIR 1977 Orissa 96.
3 Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114
Orissa.
4 Deivasigamani Udayar vs. Rajarani Ammal, AIR 1973 Madras 369:
(1973) 1 Mad LJ 383: 86 Mad LW 209.
Determination of income—Power under Section 151 Civil Procedure Code257
him to be due to the plaintiff or which the Court may prima facie find the
plaintiff to be entitled, or a defendant can be directed to deliver
straightway to the plaintiff in a suit for possession of several properties,
the items admitted by him to belong to the plaintiff or which the court
may find him to be prima facie entitled. In cases where the defendant
admits part of the claim of the claim of the plaintiff, the latter may ask
the court to pronounce judgement and pass a decree to the extent of the
admitted claim while postponing adjudication in regard to the rest of
the claim. 1
Presumption of income
A person having his own independent business, belonging to an
affluent business family, which resides at a prima locality in Bombay,
maintain a car and has other luxuries of life, can hardly be heard to say
that he is in no position to meet the order of maintenance of Rs. 4,000/-
per month for his minor child and Rs. 2,000/- per month for his
estranged spouse. If at all there was any truth in this contention, he
should have availed of the opportunity given to him by producing his
books of account, so that the veracity of this defence could have been
tested. Therefore it was held that prima facie, at least at this juncture,
financial stringency was a bogey being put forward only to bolster the
contumacious conduct and stand adopted by the husband. 2
If a person is an able-bodied person capable of working, then, he
is supposed to maintain his wife and to pay the maintenance as required
under Section 24 of Hindu Marriage Act, 1955. It is for the purposes of
fixing the amount under Section 24 that the applicant’s own income and
that of the respondent is to be taken into consideration. In the absence of
any income as such of either party, the husband being an able-bodied
person and capable of maintaining his wife is liable to pay the interim
maintenance under Section 24 of the Act. 3
When there is no evidence that the petitioner is not capable of
earning more, if an able-bodied man capable of earning more without any
lawful excuse does not earn enough as in expected of him, it is not a
Proof of employment
The applicant, in one case, stated that her husband had previously
taken training and that he was now working an Engineer and, hence, she
was entitled to Rs. 500/- per month as maintenance allowance from her
husband. It was held that it cannot be imagined that an Engineer would
be without any employment and would even then going for the second
marriage, if he was unemployed. It appears that the stand taken by
husband that he was unemployed was only taken to avoid his liability to
pay maintenance allowance to his first wife who was living with her
father and brother. On taking a conspicuous view it was held that the
order granting maintenance is not illegal. 3
Renunciation of world
In one case the contention was that the husband had renounced
the world and he become a Sadhu and therefore, he was not liable to pay
any maintenance to his wife. The wife had stated that her husband
sometimes puts on the traditional dress of Sadhus and sometime he is
dressed in Dhoti-Kurta. In the same paragraph the wife had stated that
her husband is having illicit relations with several woman and spends
Rs. 1000/- on those women. She had also stated that in order to throw
dust in the eyes of the police her husband puts on the robes of a ‘Babaji’.
In these circumstances it was held that it cannot be said by any stretch of
imagination that wife has admitted that her husband has renounced the
world and has become a Sahdu. In this connection the attention of court
was also invited to a police report on the back of the summon in which
the learned Magistrate had recorded that the warrant of arrest for the
recovery of the amount had been returned by the police unexecuted with
a note that Hardev Singh has become a Saint and has transferred his
entire property. It was held that, the report on the warrant was not
sufficient to prove that Husband had become a Sadhu and further that
even if it is assumed for the sake of argument that he had become a
Sadhu that does not absolve him from the duty to maintain his wife
and children. 1
Reliance was placed on a rather old case 2 that a man is not, and
ought not to be, permitted by his own voluntary act to free himself from
the elementary duty of maintaining his wife and children and he is
amenable to the provisions of Section 488 of Criminal Procedure Code,
notwithstanding the fact that he has adopted the yellow robe and had
become a member of the ‘Sangha’.
Step son
A step son is not bound to maintain his step mother, as long as he
has not taken or asking for the share of her husband who is alive. It is
also well settled that a son has to maintain his mother irrespective of the
fact whether he inherits any property or not from his father, as he has, on
the basis of relationship, the obligation to maintain his mother who has
given life to him; where as the position of a step-son is altogether
different. Equally so, there can be no dispute with the proposition that
the obligation to maintain the Hindu widow depends on the taking of the
deceased husband’s share in the family estate and to whomsoever her
husband’s share is allotted, that person will have to maintain her. 3
Suppression of income
Privy Council 1 has observed as hereunder:
“A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and failing
accordingly to furnish to the Courts the best material for its
decision. With regard to third parties, this may be right enough:
they have no responsibility for the conduct of the suit: but with
regard to the parties to the suit it is, in their Lordship’s opinion,
an inversion of sound practice for those desiring to rely upon a
certain state of facts to withhold from the Court the written
evidence in their possession which would throw light upon the
proposition.”
These observations were endorsed by the Privy Council again in
Rameshwar Singh vs. Bajit Lal Pathak, 2 and have now been quoted with
the approval by the Supreme Court in Hiralal vs. Badkulal, 3 and relied
by Calcutta High Court in the following case:
‘Monthly income of a husband may not very often be within the
knowledge of the wife, particularly in a case like this where the
relation is considerably strained and the spouses are living a part
for a considerably long period, the wife staying in India and the
husband in the United Kingdom. In a case like this, the amount of
the husband’s income would be within the special knowledge of
the husband and when the issue before the Court is the amount of
such income, the onus, under S. 106, Evidence Act, would be on
the husband to disclose the same and if the fails to do so without
any good reasons, the Court would be entitled to presume against
him and to accept the allegations of the wife as to the amount of
income derived from such reasonable sources as would be
available to her. More so, where, as here, the husband does not
even deny on oath the correctness of the amount alleged by the
wife to be his income but only seeks to take shelter behind legal
technicalities.’ 4
It is well known that in a case of this nature diverse claims are
always made when one inflates the income and other suppresses. An
element of conjectures and guess work has to be done by Court. The
Court should keep in mind that an order under Section 24 of the Act does
not become a windfall for one of the applicants and nor does it become a
harsh penalty for the other. A golden balance has to be struck while
expressing discretion in the matter. 1
In one case the wife had stated the income of husband to be
Rs. 10,000/- p.m. from the auto advisory service and Rs. 14,000/- per
year as agricultural income. On behalf of respondent it was submitted
that for this income of the respondent, the wife had not produced
evidence. It was held that the husband was the person who was in
possession of best evidence, but had not produced any evidence and felt
contended and satisfied by stating that his earning from the work of auto
advisor was only Rs. 2000/- p.m. So far as the agricultural income is
concerned, he denied the same. So this was a case where there is word
against word. But the husband who is the person in possession of best
evidence of his income, has not produced the same. The income as given
by the petitioner should have been taken as the income of the respondent.
In a matter where wife is claiming maintenance, the husband makes all
the efforts to see that she gets a meagre amount of maintenance by
concealing true income. 2
Where the husband is a medical practitioner, the quantum of
income in absence of any definite evidence, has to be determined by this
Court on some guess work. A skilled labour even earns more than
Rs. 1,500/- per month today. Therefore, it is not possible to believe that
a doctor cannot earn an amount an amount more than a skilled labourer.
Therefore the court would have no hesitation in drawing somewhat
adverse inference against the husband for not disclosing the correct
income and placing on record the relevant documents. Thus, it was
concluded that the income of the husband is not less than Rs. 2,000/- per
month even if he is practising in a remote place. 3
In another case it was held there was blissful non-disclosure of
his true assets and his real income. In certain respects, there has been a
modus operandi of Suppessin veri and Suggestio falsi and the approach
generally is one of evasion and avoidance to place the truth before
the Court. 4
Unnatural conduct
The husband, in one case contended that that he had been running
a business in the name of Avinash Hana & Co. in parental premises A
731, Prem Nagar. Since he was suffering losses he sold it to his brother
Subhash for Rs. 2000/- but the deed of transfer shows Rs. 5500/-. He
joined the service with M/s. Naveen Industries, a firm owned by his
brother Subhash at Rs. 300/- p.m. They both were living at A-732, Prem
Nagar. But he deposed against his written statement that Brij Mohan
Sethi was the sole proprietor of that firm Naveen Industries which
manufactures cash boxes and safe. He produced Brij Mohan Sethi (RW7)
who deposed that he was the owner of Naveen Industries and he had
employed Avinash Handa (husband) on Rs. 300/- p.m. raised now to
Rs. 350/- p.m. His job is to sell and purchase goods, but he does not say
which goods. He is yet maintaining a telephone which he got in the
Unskilled Labourer
The wife had stated in the affidavit that the husband was engaged
in the business of bardona and was earning therefrom Rs. 3,000/- per
mensem. The husband had denied this fact and stated in his affidavit that
he is a daily wage worker. It was held that even an unskilled labourer
earns Rs. 50/- per day and the monthly income of the husband will not be
less than Rs. 1,500/-. It was also not denied that he is not able-bodied
person and could not work as an unskilled labourer. Under these
circumstances, It was held that it will meet the ends of justice if the
husband is directed to pay Rs. 750/- per month as maintenance pendente
lite to the wife with Rs. 1,000/- as litigation expenses. 2
Vague denial
In case of Gurvinder Singh vs. Harjit Kaur: 3, it was held
as under:
Chapter 8
Quantum of maintenance
SYNOPSIS
Introduction....................................267 Lump sum payment ........................ 286
Alternative sources of income ........267 Maintenance of children ................ 286
Bare minimum requirements ..........268 Maintenance of parents ................. 288
Benefit of doubt ..............................268 Maximum amount .......................... 289
Compromise ...................................268 Minor children............................... 289
Conduct & status of parties ...........269 Nominal amount ............................ 290
Consideration for determining quantum Number of dependents ................... 290
.......................................................270 One fifth of pay .............................. 290
Date from which payment is to be made One fourth of pay ........................... 292
.......................................................279 One third of pay ............................. 292
Dependents.....................................279 One third or one fifth of income .... 295
Earning spouse...............................279 Persons of royal descent................ 296
Enhancement ..................................279 Precedents ..................................... 296
Excessive amount ...........................280 Principle for computation.............. 297
Half share .....................................281 Proper proportion ......................... 298
Income of claimant/wife .................282 Provisions for rent ......................... 298
Increase or decrease ......................283 Requirement of other relatives ...... 299
Interference in Revision .................283 Right of minors .............................. 299
Irregular income ............................284 Standard of living .......................... 300
Joint family.....................................284 Status ............................................. 300
Judicial notice of inflation .............285 Working wife.................................. 300
Introduction
The amount which is fixed for payment as maintenance is arrived
at with reference to various considerations. One important consideration
is of course, the income of the paying party. This factor has already been
dealt with in the previous chapter. This chapter deals with other
considerations which prevails upon the court while fixing the amount of
maintenance.
Benefit of doubt
In one case the Court below accepted the income of the
respondent to be Rs. 3,000/- to Rs. 5,000/- p.m. It was held that the
benefit of doubt has to go in favour of the wife it was considered to be a
fit case where the income of the husband has to be taken to be
Rs. 5,000/- p.m. and out of this amount he had to part with a reasonable
sum for his wife and child. Normal rule is to award 1/3 rd of this amount
to the wife as interim maintenance per month. Similarly, a reasonable
sum is also to be awarded to the child. In this case, it was considered to
be appropriate and reasonable that the mother and child be given
Rs. 3,000/- p.m. as interim maintenance, from the date of application 3
Compromise
Where parties compromised on payment of lump-sum amount to wife
for maintenance of child, the order was passed in terms of settlement.4
1 Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996
Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 1995 MLR 385.
270 Law of Maintenance
1 Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996
Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 1996 AIR(Del) 54: 1995 MLR 385.
2 in Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II
(1991) DMC 485 Guj.
Quantum of maintenance—Consideration for determining quantum 271
the situation and the amount that will be received by her under Section
24 of the Hindu Marriage Act. 1
Thereafter it was held that even after giving some latitude to the
income of the applicant, certainly, the amount of Rs. 7,000/- per month
claimed by the non-applicant is ordinarily heavy and even beyond her
requirement. It cannot be forgotten that the applicant is to maintain
himself, his residence, his clinic, pay for education of his two children.
So called luxurious items as stated by the non-applicant cannot be treated
so because even for the medical profession of the applicant these are the
necessary amenities. There may be VCR, Television, cooking range at
the residence, air-conditioner, cooler etc; some times in the past these
items might have been treated as luxurious but in present days they have
become necessities of life. 2
In another case it was held that the quantum of maintenance at the
rate of Rs. 8000/- per month is certainly not on the high side. The instant
proceedings are after all for interim maintenance pending the hearing and
final disposal of the main matrimonial proceedings. The amount, to
which the wife would be entitled pending the main proceedings, should
be a fair and reasonable amount satisfactory enough to maintain herself
as the wife of her husband and in a manner and style in consonance with
their status. Interim maintenance proceedings cannot be equal with
proceedings akin to partition and possession of a share in the family
properties. All that the Court has to consider is what, in the facts and
circumstances of each case, would be an amount fair and just which
should be awarded by way of interim maintenance to the wife in
consonance with the status of her matrimonial home and of course, in
consonance with the life style of her own husband whose wife she
continues to be. It was observed as under:
‘One is unhappy to see the extent to which the husband is wiling
to go in order to avoid in a reasonable manner his liabilities to
maintain his wife. One who has been continuously over the years
exclusively enjoying large benefits of very valuable properties in
Bombay and Ahmedabad as also the large benefits of a running
cinema theatre and one who is a managing director of a private
limited company in which he hold over 90% interest and one who
has been paying as such as Rs. 2,40,000/- on salary, can as well
afford to pay a fair, just and reasonable sum by way of
maintenance to his own wife. It is also worth noting that for the
last ten years the husband has been staying separately from his
wife. All these long years, the husband has been staying
separately from his wife. All these long years, the husband did
not even bother to help her. And like every other estranged Hindu
wife, the wife here also has somehow managed to live perhaps
under heavy obligations of her relations. She even faithfully and
devotedly looked after and brought up her son born of this
matrimonial tie. It is only now when the husband has chosen to a
drag his wife to a Court of law by way of the present matrimonial
petition — which was literarily the last straw on the camel’s back
— that she, perhaps unable to hear the sufferings any longer, has
chosen to take out the present notice of motion for maintenance.
Even in these proceedings, she has expressed her willingness to
go back and stay with her husband if only he gives up, according
to her, his adulterous life with one Rita, a former employee in an
Attorney’s firms.
An amount of Rs. 5000/- per month would be a fair, just and
reasonable award in favour of the wife by way of maintenance.
Indeed, the husband himself seems to suggest maintenance of
Rs. 4500/- per month vide ground (aj) of the memorandum of
appeal.’ 1
In another case a question was posed by the High Court in these
words: ‘Having regard to the necessities of life given the walk of life of
these people, with him working in an insurance office as a salaried
employee, with the wife living at home with the onerous duty of bringing
up these three young children, does the order produce a result in which
the husband on the one hand in his home, the bed sitter, has a
comparable standard of living to the wife and children in their home?’
Then the court went on to answer this question as under:
‘One starts from the position that on this sort of salary scale the
family is going to have a significant drop in the standard of living
as a result of divorce because the income, which is really only
enough to keep the family comfortably in one house, has to be
split up so that the family can live in two places. There is a
difficulty in the presentation of the facts, that on the figures that
we were given first it looked as if the wife had a surplus of
income over expenditure of ₤ 6 a week or so, but when her
affidavit was scrutinised it appears that the figure given as her
expenditure does not, with any accuracy, disclose the breakdown
of her overhead expenses on rates, water rates, telephone, ground
rent, heating, lighting and a thing called ‘maintenance contract’.
These were items that were covered by the original voluntary
payment of ₤ 40 a month for those purposes, and there is not
anything before us, nor have we received any information about
1 Scott vs. Scott, (1978) 3 All ER 65 (CA): (1982) 2 DMC (BJ) 80.
2 Pushpa Anil Sharma vs. Anil Shivmurthy Sharma, I (1994) DMC
583 Bombay.
Quantum of maintenance—Consideration for determining quantum 277
divorced wife until she remarries. Liberty was granted to the husband to
approach the Family Court for modification or cancellation of the
maintenance allowance in the event of the lady entering into remarriage. 1
In another case the gross salary of husband was Rs. 2,733/-. The
net pay available to him was Rs. 2,163/-. Thereafter, he has made certain
deductions and the take home pay is found to be Rs. 1,039/-. It was held
that for computing income in such cases, the deductions made by the
husband by way of contribution towards benevolent funds, contribution
towards GPF, repayment of advance, etc. cannot be taken into
consideration. Therefore, his gross salary can be taken into consideration
as Rs. 2,733/. It also transpires from the pay slip produced on record that
he is paying a rent of Rs. 45/- per month for the quarter he is occupying.
Therefore it was held that even if the gross salary that was earned by the
husband is taken into consideration, deduction of Rs. 1,200/- from that
amount would leave behind an amount of Rs. 1,500/-. Therefore it was
held that an amount of Rs. 500/-, by way of maintenance, would meet the
ends of justice. 2
In another case the husband was getting Rs. 4,000/- per month as
salary. The wife was also receiving a salary of Rs. 879/- per month, as a
teacher. Considering the huge income which the husband is receiving and
considering the paltry sum of the salary which the wife is receiving as a
teacher, it was held just and proper that alimony pendente lite of
Rs. 500/- per month, should be granted and she should also be granted
the litigation expenses of Rs. 5,000/- considering the fact that the
husband dragged her to Court not only in the matrimonial proceedings,
but also in other proceedings. 3
In another case the husband was a Driver in the Roadways and his
monthly income was Rs. 1500/- per month, according to the wife, while
according to the husband it was only Rs. 1090.90 per month. That apart,
there was also evidence that he also owned a Bus from which he had
income of Rs. 2000/- per month. However, considering the income of
Rs. 1090.90 per monthly only, the court below in view of the fact that
the husband was neither maintaining his wife nor his two minor children
awarded Rs. 300/- per month to the wife and Rs. 100/- each to the two
minor children, total Rs. 500/- which amount was held to be not
erroneous or suffering from any illegality. 1
In one case evidence showed that the husband and his second
wife were living in a large and sumptuously furnished house, and that in
each of the last two years the husband had spent, from one spouse or
another over ₤ 60,000 on himself, his second wife and her children. It
was observed as under:
‘In order to enable the wife to enjoy during her lifetime the same sort of
standard of living as MRs. L. enjoys now is likely to enjoy in the future,
she should in addition to having transferred to her the husband’s half
share in Pilgrim’s Wood, be awarded a lump sum of such an amount as
will meet two requirements: firs, a sum sufficient to put Pilgrim’s Wood
into proper condition, and to furnish its interior in a reasonably
sumptuous way; and, secondly, a further sum sufficient, if she chooses to
apply it in that way, to purchase for her an annuity of ₤ 30,000.
As regards the first sum, I should regard ₤ 75,000 as a fair figure on the
evidence available. As regard the second sum, actuarial tables indicate
that the capital cost of providing an annuity of ₤ 30,000 after deduction
of tax on the taxable part of the annual sum provided, is of the order
of ₤ 310,000.
On these figures it seems that the proper lumps sum to award is
₤ 385,000. neither of the constituent figures is exact, however, and in all
the circumstances of the case, including, in particular, the indebtedness
of the wife, and the fact that the sum is being paid by instalments, I think
it would be fair to round off the figure at ₤ 400,00. I would not, however,
regard that sum as including in it any amount in respect of the future
maintenance of Simon, which should for the reasons which I gave
earlier, be dealt with by an appropriate order for periodical payments
payable directly to him.’2
In yet another case materials were brought to record to prove that
husband was sufficient means. What is sufficient in a particular case
would depend upon the social and economic status of persons. Petitioner
ought to have brought to record materials to show how his other family
members are maintained so that Court could have considered the equal
scope for maintenance of wife. In absence of any material, finding of the
trial Court that Rs. 200/- per month would be just allowance cannot be
said to be unreasonable even keeping the minimum standard of 1985
in view. 3
1 Dinesh Kumar Singh Rathore vs. State of U.P., I (1991) DMC 638
All.
2 Preston vs. Preston, (1982) LR Fam. 19 (CA): (1986) I DMC (BJ) 25.
3 Neheru Bag vs. Tapaswini Bag, I (1992) DMC 197 Orissa.
Quantum of maintenance—Enhancement 279
Earning spouse
In one case the claimant’s mother was earning a monthly income
of Rs. 8,000/- out of which Rs. 4,000/- was being paid as rent and
considering the fact that the plaintiffs are two unmarried daughters who
stay with their mother who had to incur expenses for their upkeep and
education, it was held that the interest of justice would warrant that an
interim maintenance of Rs. 1,500/- per month should be granted to each
of the plaintiffs payable from the date of filing of application besides a
sum of Rs. 5,000/- towards litigation expenses. 3
Enhancement
A perusal of sub-section (1) of Section 127 of the Criminal
Procedure Code, 1973 leaves no manner of doubt that on proof of a
1 Nalini vs. Velu, II (1984) DMC 434 Kerala: 1984 Ker LJ 438: 1984
Ker LT 790: AIR 1984 Ker 214.
2 Sheela vs. Rajveer Singh, I (2000) DMC 733 (SC).
3 Radhika vs. LT. Col. J.C. Dhir (Retd), II (2000) DMC 232 Delhi.
280 Law of Maintenance
Excessive amount
Maintenance allowance granted at the rate of Rs. 500/- per month
cannot in anyway be said to be excessive. 3
Where income of husband was only Rs. 360/ p.m., grant of
Rs. 200/- as maintenance was held to be excessive and amount was
reduced to Rs.150/- p.m. 4
In another case the husband was a Medical Officer getting a
salary @ Rs. 5000/- per mensem as determined by the Matrimonial
Court. The maintenance pendente lite @ Rs. 1000/- fixed by the
Matrimonial Court was held to be excessive. It was held that the
Matrimonial Court did not take into consideration the fact that the
progenies from the wedlock were being maintained by the husband. 5
Half share
There is no hard and fast rule, and each case depends on its own
facts, and the Court has been given wide discretion to fix the amount of
maintenance, keeping in mind the provisions of Section 23(2) of the Act.
If the income of the husband is on the higher side and if he has no
obligation to maintain any other persons except himself, and if the wife
is neglected, who has to maintain two children, the share from the
income of the husband to which the wife should be entitled may be
considered to the extent from one-third to one-half, depending upon the
circumstances of the case and the need of the family. In the instant case,
the net income of the husband is assessed at Rs. 2,000/- per month plus
income from the joint family properties. The amount of Rs. 1,000/- per
month claimed by the plaintiff-wife is less than one-eighth of the net
income of the defendant-husband and, therefore, it is not necessary, in
the instant case, to decide the percentage to which the plaintiff-wife will
be entitled to. At least, she is entitled to Rs. 1,000/- as maintenance per
month from the date of the suit till she alive, subject to her right to apply
for enhancement of maintenance in accordance with the income of the
defendant-husband under Section 25 of the Act. 2
In Radhikabai @ Ambika vs. Sadhuram Awatrai, 3 the Court held
that after deducting amount for uncertainties the total income of the
husband is to be divided equally amongst the dependents of the husband,
if any, including himself and in this way the wife shall be entitled to
have her proportionate share. In another case, the material on record did
not show that there were dependents of the husband. Therefore, if an
amount of Rs. 100/- is deducted out of the income Rs. 1500/-, for
uncertainties, then the -wife was accordingly held entitled to receive
maintenance at the rate of Rs. 700/- per month as alimony. 4
1 Pratima Singh vs. Abhimanyu Singh Parihar, I (1986) DMC 301 MP.
2 Maganbhai Chhotubhai Patel vs. Maniben, AIR 1985 Gujarat 187:
1985 Guj LH 181: 1985 (1) 26 Guj LR 271.
3 AIR 1970 MP 14.
4 Pratima Singh vs. Abhimanyu Singh Parihar, ibid.
282 Law of Maintenance
Income of claimant/wife
Very often financial support is given to the wife by her father. It
has been held that the sum received by wife from her father is not her
income but only a bounty which she may or may not get. 1
The mere fact that the language of Section 488(1) of the old Code
does not expressly make the inability of a wife to maintain herself a
condition precedent to the maintainability of her petition, does not imply
that while determining her claim and fixing the amount of maintenance,
the Magistrate is debarred from taking into consideration the wife’s own
separate income or means of support. There is a clear distinction between
a wife’s locus standi to file a petition under Section 488 and her being
entitled, on merits, to a particular amount of maintenance thereunder. 2
There is nothing in these provisions to show that in determining
the maintenance and its rate, the Magistrate has to inquire into the means
of the husband, alone, and exclude the means of the wife altogether from
consideration. Rather, there is a definite indication in the language of the
associate Section 489(1) of the old Code, that the financial resources of
the wife are also a relevant consideration in making such a
determination. Section 489(1) provides, inter alia, that “on proof of a
change in the circumstances of any person receiving under Section 488 a
monthly allowance, the Magistrate, may make such alteration in the
allowance as he thinks fit”. The “circumstances” contemplated by
Section 489(1) must include financial circumstances and in that view, the
inquiry as to the change in the circumstances must extend to a change in
the financial circumstances of the wife. 3
Under the Hindu Adoption & Maintenance Act, 1956 it is the
obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself. It has been held that where the wife has no income of
her own, it is the obligation of the husband to maintain her and her two
unmarried daughters one of whom is living with wife and one with him.
Section 24 of the Hindu Marriage Act, 1955, no doubt talks of
maintenance of wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since wife is maintaining the eldest unmarried daughter, her right
to claim maintenance would include her own maintenance and that of her
1 Kulbhushan Kunwar Dr. vs. Raj Kumari, AIR 1971 SC 234: 1971
All LJ 1047: 1970(3) SCC 129: 1971(2) SCR 672.
2 Bhagwan Dutt vs. Kamla Devi, 1975 CrLJ 40: AIR 1975 SC 83:
1975(2) SCC 386: 1975(2)SCR 483: 1975Mad LJ (Cr) 81.
3 Bhagwan Dutt vs. Kamla Devi, ibid.
Quantum of maintenance—Interference in Revision 283
daughter. This fact has to be kept in view while fixing the maintenance
pendente lite for the wife. 1
Increase or decrease
No criteria has been laid down to be taken into account while
considering the application under Section 127 of the Code and the
ground on which reduction or enhancement of the amount may be made.
A change in the circumstance of any person appears to be the sine qua
non for vesting power in the Magistrate to deal with the matters
regarding alteration of quantum of maintenance. In these circumstances
it has been held reasonable to read Section 125 and 127 of the Code
together since both the section deal with the same subject object matter
and one is an off shoot from the other. This position becomes
particularly clear since the Magistrate is vested with power both to
enhance and reduce the quantum of maintenance as evident from the
provisions of the Sub-section (1) of Section 127 of the Code. It is
therefore necessary that in order to deal with the application filed under
Section 127(1) for modification of the order of maintenance, the
Magistrate should consider the matter in the light of the criteria which
usually weigh with the Court in the proceeding under Section 125. 2
In the proceeding under Section 125, the Magistrate is to consider
the reasonable requirement of the wife for her proper maintenance
considering the standard of living which she was enjoying/would have
enjoyed in the house of her husband, the reasonable amount required for
her separate maintenance considering the prevailing cost of living, price
of essential commodities, etc., and also the income of the husband and
income, if any of the wife. Unless this position is accepted it will lead to
a mechanical disposal of the application filed under Section 127 simply
on the ground that there has been a change in the circumstance
subsequent to passing of order under Section 125. 3
Interference in Revision
In one case Rs. 1300/- per month as maintenance pendente lite as
also litigation expenses of Rs. 2200/- was fixed by consent of both the
parties. The wife then brought certain more facts to the notice of the
learned ADJ like that he was actually drawing salary of Rs. 4300/- per
month and was also, getting bonus of Rs. 14000/- to Rs. 15000/- per
year. In addition the husband was alleged to be recovering Rs. 1500/- per
month as rent. The learned ADJ carefully considered these circumstances
some of which were also admitted in the reply filed by the husband. He
came to the conclusion that husband was actually receiving Rs. 14000/-
to Rs. 15000/- approximately per annum as bonus. Thus adding this
income he came to the conclusion that the monthly income of the
husband was round about Rs. 5000/- per month and, therefore, increased
and maintenance allowance from Rs. 1300/- to Rs. 1600/- per month. It
was held that there was no jurisdictional error in the conclusion arrived
at by learned Additional District Judge. 1
Irregular income
While considering the irregular nature of income it was observed
as under:
‘The error committed by the Revisional Court is that although the
husband was receiving Rs. 620.65 p. per month, his salary has
been considered as Rs. 1,000/- per month. Secondly, the extra
work which the husband undertakes on holiday cannot be said to
be any fixed income. No fixed income is proved on record and
therefore, the uncertainly of the income cannot be taken into
consideration to enhance the quantum.’ 2
Joint family
In one case husband was residing with his parents and his brother
in a flat which was a luxurious one having air-conditioner. The husband
was working as a Director of a firm and his family belongs to the
business community and the income appeared to be quite substantial. It
was held that even assuming that the net income of husband is about
Rs. 2500/- per month, still there is nothing wrong if the learned Judge
awarded Rs. 100/- to the wife and Rs. 500/- each to the two children. It
was also held that the husband must thank himself for the situation as it
is of his own making and should have exercised more restraint and
should have also advised his parents to do so while dealing with
his wife. 3
In another case the husband was in service in a private auto
company and is drawing a salary of Rs. 500/- p.m. and was a member of
the joint Hindu Family which was possessed of certain agricultural lands
Judicial notice can be taken of rising prices with the result that
the cost of bare existence is regularly rising, rather mercurially. 1
Having regard to the rising cost of living at the relevant point of
time, which the Court can take judicial notice at least Rs. 250 to 300/-
per month if nor more, was held to be required for the maintenance of the
children, the expression ‘maintenance’ being understood as defined in
Section 3(b) of the Act. The question of adequacy is not to be tested by
the fact that they were not subjected to abject starvation, but the same
will have to be tested by the standard reflected in the definition
of ‘maintenance’. 2
Maintenance of children
Under Section 3(b) of the Hindu Adoptions & Maintenance Act
‘maintenance’ includes— (i) in all cases, provision for food, clothing,
residence, education and medical attendance and treatment; (ii) in the
case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage. 4
Reasonable expenses of and incidents to their marriage also
would come under the definition of ‘maintenance’. Looked at from any
point of view and from any angle, therefore, it is not at all possible to
say that the plaintiff were adequately maintained. Even otherwise, as
pointed out earlier, it is not open to the defendant to say that because
they were maintained till the date of the suit by the mother they should
be continued to be maintained by her only. Such cannot be the stand of
1 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
2 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka.
3 Palanimmal vs. K. Chinnusamy, II (1995) DMC 140 Madras.
4 Gurupadayya vs. Ashalata, ibid.
Quantum of maintenance—Maintenance of children 287
the defendant because, as pointed our earlier, the liability of each of the
parents is several. 1
The husband was a Medical Officer getting a salary @ Rs. 5000/-
per mensem as determined by the Matrimonial Court. The maintenance
pendente lite @ Rs. 1000/- fixed by the Matrimonial Court was held to
be excessive. It was held that the Matrimonial Court did not take into
consideration the fact that the progenies from the wedlock were being
maintained by the husband. It was not disputed that the progenies are
being educated in Public School and the husband had to incur
expenditure on the maintenance of the children. Under these
circumstances, it was held that it will meet the ends of justice if the
husbands is directed to pay the interim maintenance at the rate of
Rs. 750/- per mensem till the final disposal of the petition under Section
25 of the Act. However the husband was permitted to deduct the
maintenance allowance @ Rs. 400/- per mensem payable under the
orders of the Judicial Magistrate under Section 125, Criminal Procedure
Code. 2
In another case the Supreme Court directed the father who had
married again, to deposit a sum of Rs. 30,000/- for each of the two
daughters who were with their mother as the husband had married again
and had paid only Rs. 50/- per month to each of the daughters which
amount was also enhanced to Rs. 1000/- per month from the January of
the year of the decision. 3 In yet another case while granting decree of
divorce the father was directed to pay Rs. 4000/- for maintenance of the
two daughters till they are married or are able to earn their livelihood.4
In this case the children were living with their mother who was also
earning about Rs. 4000/- per month. 5 In yet another case the monthly
maintenance granted to the son was Rs. 1000/- which was enhanced to
Rs. 3000/- per month till he attains the age of 27 years. 6
In a rather latest case the Supreme Court has held that the
liability to maintain the children, under section 26 of Hindu Adoptions &
Maintenance Act, 1956, is mutual and both the parents should contribute
towards their maintenance, and the amount of Rs. 3000/- fixed for
Maintenance of parents
In fixing maintenance but allowance the court has to Take into
account not only the needs of the person who claims maintenance but
also the capacity, status, commitments and the obligations of the person
who is to pay it. It is to be recalled that the applicant has two infants
who are to be looked after by him and this is the stage when he is to
bring them up and also to give them proper education so that they grow
in the manner in which every parent would like their children to grow.
The court while dealing with such matters should not only take into
account the respective needs and requirements of the parties but should
also take into account the status, the capacity to pay, commitments and
the obligations of the person held guilty of neglect. It would be unjust to
grant maintenance in an arbitrary manner. In certain circumstances it
might have the effect of virtually rendering the other side a destitute. In
dealing with this aspect of the case the courts below have made an
emotional approach and that is how the quantum of maintenance
was fixed. 2
In this case while allowing this allowance the courts below had
taken into consideration that the income of the husband is about
Rs. 3,000/- per month. There was also a mention of the fact that the wife
of the petitioner was also earning about Rs. 1,000/- per month. It is true
that the income of the wife was not taken into consideration while fixing
the quantum of maintenance but then it appears that this has affected the
minds of both the courts below. The husband had submitted a chart of his
latest income before High Court wherein he had pointed out to various
deductions he has to make from his pay and had stated that after making
the compulsory deduction he is only left with Rs. 1,300/-. He has placed
his total income at Rs. 3,349/-. He has further stated therein that after
paying Rs. 900/- to his parents he is left with only Rs. 400/- to maintain
himself, his wife and two children. It was held that the only
consideration in allowing the quantum of maintenance that seems to have
weighed with the courts below was the income of the petitioner and they
have not taken into consideration the compulsory deductions which the
petitioner had to make from his income as an employee. Both the courts
below have failed to take into consideration some both factors while
fixing the quantum of allowance. It was also held that it had been totally
1 Padmaja Sharma vs. Ratan Lal Sharma, 2000 (4) SCC 266
2 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
Quantum of maintenance—Minor children 289
Maximum amount
In one case the applicant was an illiterate old woman without
means. The husband was an employee of the vehicle factory, and
according to his own admission, he was getting Rs. 3,500/- per month as
salary. It was held that must have been before the revision of pay under
the Fifth Pay Commission and he had no other liability as all his six
children are major and married. Maintenance of Rs. 500/- per month to
the wife was affirmed. 2
Minor children
In ordinary circumstances, the expenses on a child which belongs
to such a family whose parents are indisputably deriving more than
Rs. 4000/- per month as income, should not be less than Rs. 1000/- per
month in any case. When the learned Magistrate after taking notice of the
factual position in this case has held that both the father and mother are
equally liable to support and maintain the petitioner, then they should
bear the expenses for the maintenance of the child in equal shares.
Therefore it was directed that it will be in the interest of justice if the
father is ordered to pay maintenance of Rs. 400/- per month. 3
The father has given evidence that his per day income was only
Rs. 20/-. The learned Trial Judge, on scanning the evidence, came to the
conclusion that even if the father was a driver of a taxi, his income per
month would not be less than Rs. 1,000/- to Rs. 1,200/-. The conclusion
drawn by the learned Trial Judge was held to be correct. But, it was
pointed out that the Counsellor’s Report also shows that the father was
working as a driver in a private sector and he was earning approximately
Rs. 1350/- to Rs. 1400/- per month. That being the monthly income of
the father, a maintenance at the rate of Rs. 200/- p.m. in favour of a
minor child cannot be said to be excessive in any manner. 4
It is the bounden duty of the father to maintain his wife and
minor children. When it was fully proved that he had neglected and
refused to maintain them it was held that in these days, the amount of
1 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
2 Prema Bai vs. Kanchhedilal, I (2000) DMC 183 MP.
3 Kumari Salon vs. Surjit Kumar Ratti, I (1996) DMC 156 P&H.
4 Wahid Rajjak Sawar vs. Shahanaz Wahid Sawar, II (1994) DMC 4
Bombay.
290 Law of Maintenance
Rs. 250/- allowed to each child is not enough for their maintenance,
particularly when they are to get proper education. 1
Nominal amount
In one case the husband was working as Station Superintendent in
South Central Railway. Although his Pay Certificate was not filed, his
pay was stated to be Rs. 3,500/- per month. The wife claimed Rs. 700/-
per month for his maintenance, but only Rs. 500/- was the maximum that
can be allowed under Section 125 of Code of Criminal Procedure. It was
submitted that the husband had since retired and that he was paralysis-
stricken and was hospitalised and, therefore, he himself needed a lot of
money for his treatment etc. It was held that in any case the wife was
entitled for maintenance and even if nominal amount is to be awarded,
the wife was held to be entitled to a minimum of Rs. 300/- per month.
But since he was paralysis-stricken, he was permitted to pay the arrears
of maintenance in 12 equal monthly instalment, failing which the wife
will be entitled to enforce the maintenance order for full amount. 2
Number of dependents
In one case the salary of husband was Rs. 1675/- considering the
fact that he was required to maintain family of 6 persons, therefore, it
was held to be just and reasonable to pass an award of maintenance at the
rate of Rs,. 200/- per month. 3
1 Dinesh Gijubhai Mehta vs. Usha Dinesh Mehta, AIR 1979 Bombay
173 (DB): 1978 UCR (Bom) 650: 1979 Mah LJ 367: 1979 Mat LR
209.
2 Ravi Parkash vs. Shakuntala Devi, II (1984) DMC 64 Delhi;
Dhirajben Prabhudas Parmar vs. Rameshchandra Shambhulal
Yadav, II (1983) DMC 56 Gujarat: AIR 1986 Guj 215: 1983 Guj LJ
455: 1983 (2) 24 Guh LR 860: (1983) Hindu LR 471.
292 Law of Maintenance
case. In this case the wife had joined the profession of advocate.
Therefore taking into consideration that even after the marriage the wife
had started visiting High Court and that she may be earning some amount
in the profession and that she has also got about a sum of Rs. 300 per
month as interest. She had to maintain herself and the child and the
amount so earned was not considered sufficient for her maintenance. The
husband had sufficient regular income from his properties. He also had
some income from his profession although his standing was not much.
Taking his savings from the income from the properties at the minimum
at Rs. 3,000 per mensem and having no other liabilities, except as
discussed above, it was held to be fair if a sum of Rs. 1,500 per mensem
is fixed as maintenance to be paid by him to his wife during pendency of
the petition filed under Section 13 of the Hindu Marriage Act. 1
One third in many cases is a very useful starting point for the
court in deciding what would be the final figure. It is a useful proportion
to take and then adjust one way or another as the case demands. But it is
in no way a rule of law. It is an aid to the mental process when arriving
at the appropriate figure and there are many cases where the ‘one third’
figure would not enter the mind of the court, because it would be obvious
from the start that the proportion would be nothing like that. For
example, the young marriage that lasts but a day or two. It is an extreme
case but it is not unknown in this court. 2
It was observed in one case that the normal rule is of 1/3 rd of net
income may be granted as interim maintenance to the wife. In this case,
the husband very conveniently did not produce his pay slip. In the
revision application also, he did not disclosed what is his gross month
emolument. However, it was not in dispute that he was an employee of
the Water Supplies Board and is a sufficiently senior person. His pay
was stated to be Rs. 6,000/- p.m. The son was also employed and his
income is stated to be Rs. 7,000/- p.m. To controvert these figures, the
petitioners before High Court did not produce anything on record and as
such it was held that this amount had to be taken to be a net monthly
income. Going by the principle of 1/3 rd of net income, it was held that
Rs. 2,000/- was reasonable sum which has to be awarded to the wife as
interim maintenance. Further even if Rs. 500/- is deducted from this
amount, the amount comes to Rs. 1,500/- as the amount of interim
maintenance to be awarded to the wife. Even after taking into
consideration the amount of maintenance which she is getting under
Section 125, Criminal Procedure Code, this would be more than
Rs. 1,000/- p.m. and therefore it was held that no interference is called
for with the order of the Court to the extent it relates to the direction to
pay Rs. 1,000/- p.m. as interim maintenance. 1
In another case it was held that there is no good reason to
interfere with the finding of the court below that the evidence available
shows that the husband’s income would be Rs. 3,000/- per month and
even though the husband pays a sum of Rs. 1,200/- per month by way of
rent for the house in which he is presently living, out of the remaining
amount he can easily pay Rs. 1,000/- to the wife in as much as the
spouses were earlier living with all comforts. 2
In another case the salary of the husband was Rs. 1,066/- p.m.
and from this, he had to maintain himself, his parents, his second wife
and children. Bearing that in mind, the maintenance order was
marginally modified passed in favour of the applicants. In spite of that,
the husband was paying Rs. 310/- p.m. in all to the wife and considering
his total salary and his liabilities, it was held that the said modification
cannot be said to be incorrect and improper. 3
In view of the fact that the wife was given Rs. 500/- p.m. under
Section 125, Criminal Procedure Code and looking to the salary of the
husband amounting to Rs. 6000/- p.m. and that he was also earning
Rs. 2,000/- p.m. from letting out a portion of his house, the award of
Rs. 1,500/- in addition to Rs. 500/-, was held to be not excessive. 4
The Matrimonial Court, on appreciation of the evidence, came to
the conclusion that the husband had income from his handloom factory,
agriculture and also by way of interest on the principal amount of
Rs. 2,40,000/- which he got in family partition. His monthly income
from all the sources was assessed at Rs. 7500/- and on this basis, the
maintenance allowance for the wife and her two children was assessed at
Rs. 2225/- per mensem. It was held that there was no infirmity in the
order. 5
Rule as to one third of the income which is a rule of the thumb
can not be applied since in a case where the husband has relatively low
income but has substantial capital assets in the form of three bed-room
flat, which was being occupied by the husband, his son by the previous
wife and the son’s family. Notionally the son would be required to
contribute for such occupation but then according to the husband the son
was maintaining the father. Therefore the rule of 1/3 rd was inapplicable
in such case. 1
He was getting a salary of Rs. 1016.35. The entire is to be
considered for, the purpose of maintenance. He has also admitted that
Shobha Kumari was continuously ill. He has also admitted that formerly.
She was also employed as a teacher in a school but at present she was
unemployed. Under the circumstances even if the wife has failed to
prove any other source of income for Narender Kumar, it was held that
that a maintenance allowance of Rs. 300/- per month is just and proper. 2
strike a balance so that spouses can live with dignity according to the
social status. 1
There is no inflexible rule. There may be cases where more that
one-third is right. There are likely to be many others where less than
one-third is the only practicable solution. Cases show that “one-third
rule” as a flexible starting point is in general more likely to lead to the
correct final result than a starting point of equality, or a quarter. In any
calculation the court has to have a starting point. If it is not one-third,
should it be one half or one quarter ? One-third is a good and rational
starting point, remembering that it is not an inflexible rule but only a
starting point. Here the husband is earning for more than the wife. She
can only keep up the standard of living with his help. Inflation has
already values considerably. 2
In the light of all the circumstances of the particular case the
court has to arrive at a figure for the maintenance and support of the wife
which is reasonable having regard to the income of the parties. In all
these cases it is necessary at the end to view the situation broadly and
see if the proposals meet the justice of the case. Rough justice according
to common sense may be the best that the court can in many
cases achieve. 3
Precedents
The decisions of courts can never be better than guidelines. They
are not precedents in the strict sense of the word. 5 There is no hard and
fast rule, and each case stands on its own merits. There is no fixed rule
and no certain proportion. The allowance is entirely in the discretion of
the court and, if the husband’s income is very large, the proportion, if the
court thinks that the appropriate approach in any given cause is to have
regard to a proportion, may be smaller whilst it may be necessary to
ignore all questions of proportion when the means are very small. The
overriding consideration is the actual needs of the parties pending
proceedings. If there are children of the marriage their needs have also to
be provided. The principles enumerated in Section 25 are much wider
because they provide for a permanent alimony. Under Section 24 it is not
necessary to take a long term view. But the principles enumerated in
post-decree cases may be helpful. The matter is one of discretion. The
court has an unfettered discretion to award what sum it considers just. 1
1 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
2 Kulbhushan Kunwar vs. Raj Kumari, AIR 1971 SC 234: 971 All LJ
1047: 1970(3) SCC 129: 1971(2) SCR 672.
3 Kulbhushan Kunwar vs. Raj Kumari, ibid.
298 Law of Maintenance
that sum making it subject to the limit of 25 per cent of the income as
found by the Income-tax authorities. 1
Proper proportion
What is a proper proportion of the husband’s income to be given
to the wife as maintenance pendente lite is a question to be determined in
the light of all the circumstances of a particular case; the very fixable
and wide ranging powers vested in the court make it possible to do
justice. It is the essence of such a discretionary situation that the court
should preserve, as far as it can, the utmost elasticity to deal with each
case on its own facts. It would be unfortunate if the wide powers of the
court are cut down by case law. Or put in a straight jacket or reduced of
cast-iron rules. 2
In Preeti Archana Sharma vs. Ravind Kumar Sharma, 3 it was
observed that “Section 24 uses the word “support” and does not uses the
word “standard” or “status”. Dissenting from this decision it was held
that the word “support” is of wide import. Support has to be according to
the standard of the parties. Maintenance has to be fixed according to the
standing of the parties, their wealth and the environment to which they in
their married state have been accustomed. 4
Maintenance depends upon a gathering together of all the facts of
the situation, the income of the parties, a survey the conditions and
necessities, regard being had to the scale and mode of living, and to the
age, habits wants and class of life of the parties. 5
1 Kulbhushan Kunwar vs. Raj Kumari, AIR 1971 SC 234: 971 All LJ
1047: 1970(3) SCC 129: 1971(2) SCR 672.
2 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
3 AIR 1979 Allahabad 29.
4 Dev Dutt Singh vs. Rajni Gandhi, ibid.
5 Mt. Ekradeshwari vs. Homeshwar, AIR 1929 PC 128 approved in
Dr. Kulbushan Kunwar vs. Raj Kumari AIR 1971 SC 234 at 239.
Quantum of maintenance—Right of minors 299
Right of minors
In the wife’s application under Section 24 of the Hindu Marriage
Act, 1955, the provision for necessities of the minor children can also be
taken into account while fixing the quantum or rate of
interim maintenance. 4
According to the provisions of Section 20 of the Hindu Adoptions
& Maintenance Act, 1956, a Hindu a bound during his or her lifetime to
maintain his or her legitimate or illegitimate children and the obligation
continues so long as a child is a minor. The father, therefore, cannot
escape his liability to maintain his children and cannot legitimately
refuse to maintain them only on the ground that they are not under his
custody. The application moved by the wife for the claim of maintenance
is inclusive of what she is spending for the maintenance of the children.
Section 26 of the Act lays down that in any proceeding under the Act the
Court may from time to time pass such interim orders as it may deem just
and proper with respect to the custody, maintenance and education of
1 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
2 Ramesh Narayan vs. Sau. Pratima, II (1985) DMC 97 Bombay.
3 Ramesh Narayan vs. Sau. Pratima, ibid.
4 Bibi Balbir Kaur Kathuria vs. Raghubir Singh Kathuria, AIR 1974
P&H 225.
300 Law of Maintenance
Standard of living
The personal income of the wife will be taken into consideration
in fixing the quantum of maintenance; but then the standard of living of
the parties, their status, their background and their outlook in life have
got to be considered while fixing the maintenance. In other words, the
quantum of maintenance must be commensurate with the standard of
living which should be neither luxurious nor penurious. 2
Status
In one case the total salary of the husband was between
Rs. 1300/- and Rs. 400/-. Having regard to the status of the husband who
was serving as Assistant Engineer it was held necessary that the wife
should also live the life in the way that would be fit the status of the
husband. It was held that in these hard days of rising cost, at least an
amount of Rs. 450/- per month should be awarded to the petitioner-wife
so as to maintain herself with ordinary comforts which could be expected
of a wife of an Assistant Engineer serving with the Government.
Moreover, this amount would be only 1/3 rd of the total salary of the
husband, as was found by the learned Magistrate. 3
Working wife
Marital relationship and birth of child who are separate, are facts
which are to be noted. In one case Wife was a Post Graduate degree-
holder. Her husband was an officer in a Bank. Child was studying in
Nursery standard in the school where her mother was a teacher. In these
circumstances it was held this was sufficient to hold that the amount of
Rs. 400/- only would not be sufficient for their maintenance. It was
required to be supplemented. Source of supplementing this amount was
the income of the husband who was legally bound to maintain at least the
child even though the mother might not be entitled to maintenance
immediately. Clear materials were, not on record to come to the
conclusion as to the requirement of the wife and the child. In such
circumstanced, it was held ends of justice would be best served with the
direction that the opposite party shall open an account in any Bank where
the wife stays to commute the distance to School in the name of the child
1 Baboolal vs. Prem Lata, AIR 1974 Raj 93: 1974 Raj LW 56.
2 Saraswathi vs. Sivaswami, II (1987) DMC 5 Madras.
3 Chandrikaben Chhanalal Patel vs. Rameshchandra Chandilal
Patel, I (1986) DMC 232 Gujarat.
Quantum of maintenance—Working wife 301
with guardianship of mother and deposit Rs. 500/- (five hundred) each
month in such account till disposal of the application under Section 125
Criminal Procedure Code. Court could permit withdrawal of amounts
from out of the deposited amount as and when mother guardian applies
for such amount for proper maintenance of the child determining the
nature of necessity. 1
In fixing the quantum of maintenance, the living standard of the
parties and the income of the petitioner and the number of persons liable
to be maintained out of that income are to be considered. The assertion
of the wife in her application under Section 125 of the Code that the
husband gets a salary Rs. 1000/- per month gets has not been denied. It is
merely pleaded by the husband that the wife herself a salary of about
Rs. 200/- as a teacher under the Angabadi Scheme. The wife, in her
evidence, had stated that she was in fact serving as a teacher but she had
given up that job after serving for one year. Her father also deposed that
she gave up the job after serving for 7 months. Thus, it was found that
both the witnesses the unanimous that by 1987 when they were examined
the wife was not having any income. That husband did not deny such
evidence. The persons who were dependent on the income of the husband
are the husband himself and his two sons. Taking all these factors into
consideration and also the income of the O.P. the quantum of
maintenance was fixed at Rs. 200/- per months. 2
Relevant point as to the ability or otherwise of the wife to
maintain herself is the date when an order on the application under
Section 125 of the Code of Criminal Procedure is made, and not when
the application is filed, because in terms of Section 125, Criminal
Procedure Code any order regarding payment of maintenance is liable to
be changed in consequence of changed circumstance occurring
subsequent thereto. If the date of filing of the application could be the
only relevant point for deciding the question of inability or otherwise of
the applicant, there was no need to enact Section 127 of the Code that on
proof of change in the circumstance of any person receiving under
Section 125 a monthly allowance or ordered under the same to pay
monthly allowance to his wife, children, father or mother, as the case
may be, the Magistrate may make such alteration in the allowance as he
deems fit. Therefore, when from the evidence adduced on behalf of the
petitioner, it was fully established that the wife was not able to maintain
herself, whereas the opposite party had sufficient means and was still
neglecting to maintain her, it was held that even if it is found that the
1 Swasti Kar vs. Girija Shankar Kar, II (1992) DMC 425 Ori.
2 Anupama Pradhan vs. Sultan Pradhan, II (1991) DMC 618 Ori.
302 Law of Maintenance
wife was earning Rs. 300/- per month as a teacher in a private school,
that amount cannot be considered to be sufficient to maintain her keeping
in view the soaring prices of the essential commodities these days. She
had claimed a sum of Rs. 1,000/- (Rupees one thousand) per month by
way of maintenance but under Section 125, Criminal Procedure Code the
amount of maintenance could not exceed Rs. 500/- (Rupees five
hundred). The opposite party, was drawing a net salary of Rs. 5,500/-.
Therefore, he was directed to pay a sum of Rs. 500/- (five hundred) only
out of that salary by way of maintenance. 1
1 Veena Devi vs. Ashok Kumar Mandal, I (2001) DMC 177 Patna.
Summery remedy—Working wife 303
Chapter 9
Summery remedy
SYNOPSIS
Introduction....................................304 Determination by civil court.......... 334
Object .............................................308 Determination of paternity ............ 334
Adultery ..........................................311 Disentitlement to avail remedy ...... 335
Affidavits ........................................311 Dismissal in default ....................... 335
Alternate remedy ............................312 Divorced wife ................................ 337
Arrears ...........................................313 Dropping of proceedings ............... 342
Amendment of complaint................314 Effect of Act of 1986 ...................... 343
Annulment of marriage ..................314 Effect of custody of children .......... 344
Application by lunatic ....................314 Effect of divorce............................. 344
Application of Civil Procedure Code Effect of Section 24 of Hindu Marriage
.......................................................316 Act.................................................. 345
Attachment of property ..................316 Effective date of modification ........ 346
Attachment of future salary ............317 Enforcement by imprisonment ....... 346
Burden of proof ..............................317 Enforcement of order..................... 348
Cancellation ...................................318 Ex parte order ............................... 350
Cancellation if necessary ...............319 Ex parte order & inherent powers. 352
Cancellation on the basis of divorce Finding of Civil Court ................... 353
deed ................................................321 Finding of Cruelty ......................... 354
Challenge to ex parte order ...........322 Formal application ........................ 355
Change in circumstances ...............322 Fraudulent marriage ..................... 356
Child...............................................322 Illegitimate marriage ..................... 356
Christian Marriage ........................323 Ingredients to be proved ................ 358
Compromise ...................................324 Interference in inherent powers..... 359
Co-habitation or Compromise between Interim maintenance ...................... 361
parties ............................................325 Interpretation................................. 361
Constitutional goal.........................326 Irregularity in recording evidence 361
Customary divorce .........................326 Justification to live separately ....... 361
Date for determining eligibility .....327 Legally wedded wife ...................... 363
Date from which payment is to be made Legitimacy of child ........................ 363
.......................................................328 Limitation ...................................... 365
Decree of civil court.......................331 Limitation for enforcement ............ 366
Decree of judicial separation.........331 Living in adultery .......................... 369
Defence ..........................................332 Living separately by mutual consent369
Delay in making claim ...................333 Locus standi of step mother ........... 370
304 Law of Maintenance
Introduction
Section 125 of Criminal Procedure Code, 1973 provides a
summery remedy that is aimed at preventing vagrancy and destitution.
This provision is as under:
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
Summery remedy—Introduction 305
(3) Where any order has been made under Section 125 in favour
of a woman who has been divorced by, or has obtained a divorce
from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried
cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has
received, whether before or after the date of the said order, the
whole of the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce, cancel
such order,—
(i) in the case where such sum was paid before such order, from
the date on which order was made;
(ii) in any other case, from the date of expiry of the period, if
any, for which maintenance has been actually paid by the husband
to the woman;
(c) the woman has obtained a divorce from her husband and that
she had voluntarily surrendered her rights to maintenance after
her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any
maintenance or dowry by any person, to whom a monthly
allowance has been ordered to be paid under Section 125, the
Civil Court shall take into account the sum which has been paid
to, or recovered by, such person as monthly allowance in
pursuance of the said order.
The order of maintenance passed under section 125 of the Code
can be enforced in the manner provided in section 127 of the Code. This
section is as under:
Object
The right of a wife for maintenance is an incidence of the status
or estate of matrimony; that according to the text of Hindu Law to which
the parties belong, the obligation to maintain the wife arises from the
very existence of the relationship between the parties and that apart from
the liability which the husband incurs under personal law or maintaining
his wife, the provisions of Section 125 Criminal Procedure Code
independently vest the statutory right in a wife to claim maintenance
from her husband. 1
A divorced wife, otherwise eligible, is entitled to the benefit of
maintenance allowance and the dissolution of the marriage makes no
difference to this right under Section 125(1), Criminal Procedure Code. 2
It is one of the fundamental duties of every citizen of country to
uphold and protect the sovereignty, unity and integrity of India, to
promote common brotherhood and preserve the rich heritage of our
culture and to strive towards excellence in all sphere of individual and
collective activity. It therefore, follow that how can one be expected to
strive towards excellence in case he fails to maintain his wife & child.
Strictly speaking the right of the wife, child and parents for maintenance
is a distinct statutory right recognised by the Legislature. 3
Section 125 is designed to prevent vagrancy and destitution and
provide a summary and speedy remedy to get maintenance. Thus it has a
social purpose to fulfil and in arriving at any finding in relation to an
application there under, the Court must look to the substance rather than
to the form, must avoid strict technicalities of pleading and proof and
must make a realistic approach to the material on record so that the
purpose aforesaid is not frustrated. 4
The object of a proceeding under Section 125, Criminal
Procedure Code is not to punish the husband or the father, as the case
may be, for his wilful neglect, but in intended to prevent vagrancy by
compelling him to maintain his wife and minor daughter, who are unable
to maintain themselves. The Section was introduced in the Criminal
Procedure Code as a quick and effective remedy and obviously as a
welfare measure with a social purpose behind it which cannot be
overlooked by Courts on a hyper technical legal ground, especially when
the section itself does not prohibit such a course. Liberal interpretation is
bound to be adopted. 1
In Pandurang Baburao vs. Baburao Bhaurao. 2 it was contended
by the son, that the obligation of a son to maintain his father is preceded
by the fulfilment of the parental obligation to maintain and bring up the
children during the childhood of the children. If the father fails to carry
out this obligation, then he is not entitled to claim any maintenance even
from his son under Section 125 of the Criminal Procedure Code. While
negativing this contention, the Division Bench of this Court had an
occasion to consider the true scope of Section 125(1) of the Code. The
Division Bench has observed in this context in para 9 of the judgment
as under:—
“The provision in Section 125(1) is a very special provision
enabling the Magistrate to make an order against a son or
daughter for payment of a monthly allowance for the maintenance
of the father or mother who is unable to maintain himself or
herself. The provision in Section 125 is one of general
application and is not related to the personal law of the parties.
Implicit in the provision, therefore, is the statutory recognition of
the obligation that a son who has sufficient means is bound to
maintain a father or mother who is unable to maintain himself of
herself. The provision is really in the nature of an ameliorative
provision made for the first time recognizing the right of infirm
parents who are unable to maintain themselves to be maintained
by their son or daughter who is possessed of sufficient means as
also providing a remedy to enforce that right. It may be noted that
the corresponding provisions in Section 488 of Cr.P.C. 1898, did
not make any provision with regard to providing maintenance to
parents.”
The liability to maintain close relatives who are indigent is founded upon
the individual’s obligation to the society to prevent vagrancy and destitution.
That is the moral edict of law and morality cannot be clubbed with religion or
personal law. Thus, the provisions of Section 125 are truly secular in character.
To say the least, it may be described as a step towards the common Civil Code
within the contemplation of Article 44 of the Constitution, though in a limited
sense. The maintenance of close relatives who are indigent so as to prevent
vagrancy and destitution is not dependent upon the personal law of the parties,
but is founded upon the individual’s obligation to the society.3
Adultery
In one case the wife was found to be not a reliable witness. There
was medical evidence as to her having become pregnant. Her case was
not of pregnancy by the applicant or even of a solitary lapse on her part
resulting in pregnancy. On a cumulative consideration the totality of the
facts and the circumstances of the case, it was held that that the material
placed by the husband was sufficient for the conclusion in the summary
inquiry that the wife was living in adultery so as to entitle him to an
order cancelling the earlier order under Section 125(1) of the Code
passed against him for asking a monthly allowance for the maintenance
to her. 2
Sub section (4) does not apply to divorced wife therefore there
can be no question of her living in adultery or refusing to live with
husband without sufficient cause. 3
Affidavits
Affidavits can be admitted in evidence if they are properly sworn,
and, while appreciating the evidence, the Magistrate applies his judicial
mind to affidavits along with other documentary or other evidence. In
this case, the Magistrate had discussed the documentary evidence and the
affidavits. It was held that the Magistrate can determine the evidentiary
value of the affidavits even by assigning common ground. All that is
1 Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 at 486: AIR
1975 SC 83 at p. 85.
2 Babu Lal vs. Munnibai, I (1987) DMC 101 MP.
3 Vanamala vs. H.M. Ranganatha Bhatta, 1995 (5) SCC 299
312 Law of Maintenance
necessary is that order passed by the Magistrate should show that he has
brought his judicial mind to hear upon the content of the affidavits. 1
Alternate remedy
Section 488 in Old Cr.P.C was already there and was in force
when Hindu Adoptions & Maintenance Act, 1956 was enacted and
brought in to force. Similarly, it is also to be noted that even in the year
1973 when old Cr.P.C. was amended, the provision under Section 488
were retained in the Cr.P.C. by way of Section 125, and at that time, the
Hindu Adoptions & Maintenance Act, 1956 was already there. Thus, it is
clear that the remedies under both these laws are available to the wife
and these remedies are coexistent, mutually complementary,
supplementary and in aid and addition of each other. Hence the remedy
resorted to under either of two cannot foreclose the remedy under other
Act. The very fact that despite the provisions for maintenance of wife
being there under the Cr.P.C., while enacting the Hindu Adoptions &
Maintenance Act, 1956 through Section 18 thereunder, the specific
provision was made for maintenance of wife, goes to show that Section
18 is a specific provision with regard to the maintenance of wife in this
special enactment as compared to the provision in the Cr.P.C. with
regard to the wives, children and parents and that the provisions under
the Cr.P.C. have to be read only in aid and addition to the specific right
conferred with regard to the maintenance of wife under Section 18 of the
Hindu Adoptions & Maintenance Act, 1956 and not in derogation or
denial thereof. The concept of maintenance to the wife is based on the
matrimonial tie and obligation the husband to maintain his wife during
his life time. This moral and social obligation has been incorporated as a
legal liability in the Act because according to our social values, a non-
earning wife without any means is considered to be dependent on the
husband and the question of her maintenance consequential to the
dependence cannot be left at the sweet will of the husband. 2
Apart from the ground of inability of the wife to maintain herself,
in case a husband with sufficient means neglect or refuses to maintain
her as contemplated under Section 488/125 of old/new Cr.P.C., under
Section 18 of the Hindu Adoptions & Maintenance Act, 1956, a Hindu
wife is entitled to live separately from her husband without foregoing her
claim for maintenance on grounds enumerated under Section 18(2). Such
grounds include desertion or abandonment by the husband without
reasonable cause, cruelty, suffering of the husband from a virulent form
of leprosy, in case the husband has any other wife living or keeps a
Arrears
Court has not taken care of complying with the proviso to Sub-
section (3) of Section 125, Criminal Procedure Code. According to the
proviso no arrears beyond a period of twelve months from the date it
falls due can be recovered. As a matter of fact an application for the
recovery of arrears of maintenance amount beyond one year is barred by
the proviso. 3
In one case it was directed that the husband shall pay to the wife
maintenance allowance of Rs. 1,500/- (fifteen hundred) per month
payable from the date of filing of the application under Section 125,
Criminal Procedure Code before the learned Magistrate the first of such
monthly payment to be made within the 15 th of April and thereafter
within the 15 th of each succeeding month, month by month. In regard to
arrears it was directed that the petitioner shall also pay monthly
instalment of Rs. 1,000/- per month for the arrears of maintenance
alongwith the current maintenance allowance till the entire arrear of
maintenance is liquidated. 4
1 Aher Mensi Ramsi vs. Aherani Bai Mini Jetha, AIR 2001 Guj 148.
2 Devinder Kumar vs. Asha Rani. II (1988) DMC 165 P&H.
3 Ganga Prasad vs. Gomti, I (2001) DMC 241 All.
4 Narayan Ch. Das vs. Madhabi Das, II (1999) DMC 131 Cacutta.
314 Law of Maintenance
Amendment of complaint
In one case the trial Magistrate while granting amendment
application has observed the since the fact of second marriage of the
husband with second wife came to her knowledge after the filing of the
Application, the first wife was justified in making an application for
amendment and taking up the new ground of second marriage. The trial
Magistrate also permitted the wife to amend his written statement so that
no prejudice would be caused to him. It was held that it would be too
technical to direct the wife to file another application taking up this
ground separately and then go for trial in these applications. This would
lead to multiplicity of proceedings. Therefore the amendment was held to
be rightly allowed. 1
Annulment of marriage
The right of the wife to maintenance depends upon the
continuance of her marriage status and once the status of husband and
wife is declared to be null and void, the effect would be the same as in
the case of void marriage under Section 11 of the Act. The legislature
has given the benefit of the provisions of Section 125 Cr. P.C. to a
divorced woman as long as she did not remarry by including Clause (b)
of the Explanation, but, not such provision has been brought in so as to
apply in the case where the marriage is declared null and void. The
legislature decided to bestow the benefit of the section on a illegitimate
child by express words, but, none are found to apply to a de facto wife
where the marriage is void, ab initio or voidable and declared void by a
decree of nullity. The benefit of maintenance under Sub-section (1)(a) is
available only if the applicant is the wife of the person concerned.
Therefore, the distinction drawn by the learned Magistrate that the
marriage in a particular case being voidable, the wife was entitled to get
the maintenance even after the decree of nullity is wholly erroneous in
law. He should have given the effect to the decision of the Civil Court
and on the basis of that, the proper course was to cancel the order
of maintenance. 2
Application by lunatic
Chapter IX of the Criminal Procedure Code deals with an order
for maintenance of wives, children and parents. The provisions contained
in Section 125 to 128 of the Criminal Procedure Code the self contained
Code as far as the proceedings for maintenance are concerned. There is
nothing in Section 125 or 126 of the Code to show that the application on
behalf of the lunatic, cannot be filed by next friend or by a guardian of a
lunatic. The underlying object of the provisions regarding maintenance is
to prevent vagrancy by compelling a person to support his wife or father
or mother unable to support herself/itself. The object is to device the
speedy summary remedy so that an adequate provision is made for
supply of food, clothing and shelter to a deserted wife, or children who
are not taken care of. That is the reason why Section 125 of the Code
empowers the Magistrate to grant maintenance upon proof of neglect or
refusal to maintain. The only requirement is that the Magistrate
concerned should be satisfied about the neglect or refusal to provide
maintenance by the person who is liable to provide for the maintenance
of the wife, children or parent. In fact, in Section 125 of the Code,
nowhere it is provided that an application is necessary. Even without a
formal application, if the learned Magistrate is satisfied that there was
neglect or refusal on the part of the person to provide for the
maintenance, he would be in a position to direct the payment of
maintenance. Of course, before passing such an order he will have to
follow the necessary procedure. 1
The provisions of Section 125(1)(c) indicates that an application
on behalf of lunatic is maintenance. Section 125(1)(c) of the Code reads
as under:—
“125(1) if any person having sufficient means neglects or refuses
to maintain
xx xx xx xx
(c) his legitimate or illegitimate child (not being married
daughter) who has attained majority, where such child is,
by reason of any physical or mental abnormally or injury
unable to maintain to maintain itself”.
If an application can be filed by and/or on behalf of a child who
has not attained majority or who is physically or mentally abnormal
child, why such an application cannot be filed for and on behalf of wife
who is mentally incapable to initiate and/or conduct the maintenance
proceeding. Similar will be the position with regard to parents entitled to
claim maintenance. This is no reason to hold that an application filed by
next friends on a guardian is not maintainable. If this logic is applied,
the application filed by any person who is clever and shrewd can never
be entertained. A clear and shrewd person is likely to present facts so as
Attachment of property
Section 421(2), Criminal Procedure Code speaks of summary
determination of any claim made by any person other than the defaulter
in respect of any property attached in execution of such warrant. This is
procedure for determining the claim of the third party. The Magistrate
Burden of proof
The burden of the proving all requirements of Section 125
Criminal Procedure Code being on the applicant, she will have to
establish the same by leading acceptable evidence in that behalf. 3
It was held that it within their special knowledge as to what she is
earning from this machine since she is possessed of it. She has not
adduced any evidence whatsoever. When she filed application under
Section 125 Criminal Procedure Code. It was her burden to discharge by
showing that she is not able to maintain herself. She does not discharge
this burden, especially after having got the machine. It was necessary for
her to have made a statement or adduced evidence to show as to how
much work she is taking from this machine and what it is fetching to, her
and also to show that after paying instalment and interest, if any, what
still is left with her for her maintenance. It was found there was nothing
on record to show as to since when she is possessed of this machine and
how much money she has already earned. Under these circumstances, she
was held not entitled to any maintenance because she had failed to prove
that she is unable to maintain herself. 1
The proceedings under Section 125 of the Code for maintenance
are not essentially criminal proceedings and he standard of proof
required to prove the guilt of the accused in criminal cases cannot be
applied to a petition under Section 125 of the Code for maintenance. It
was held that for want of correct approach for appreciating the evidence
in proceeding under section 125 of the Code, the learned Magistrate fell
into error and it has resulted into wrong appreciation of evidence and
consequently resulted in flagrant miscarriage of justice. Therefore it was
held learned Session Judge considered the evidence on record in the
proper perspective and reached to a different conclusion, which was
necessary for doing justice to a lady who was driven away by the
husband after giving her ill-treatment. Consequently, it was held that
there was no legal infirmity in the approach and also in the finding
reached by the learned Session Judge. 2
Once the marriage procedure and paternity of child was admitted,
it does not lie in the mouth of husband/father to contend that no valid
marriage came into existence as essential rites were not performed. Strict
proof of performance of essential rites is not required. 3
Cancellation
The first three sub-sections of Section 127 deal with
circumstances under which the Magistrate could bring about with
alteration in, cancellation of or variation in the order under Section 125,
Sub-section (1) deals with alternation in the allowances as the Magistrate
thinks fit, on proof of a change in the circumstances of any person
receiving, or ordered to pay monthly allowance. It was held that under
this provision, an order directing payment of maintenance could even set
be at naught, on proof of change in the relevant circumstance. The
expression “alteration” used in sub-section (1) would contemplate such
an order also. 4
Cancellation if necessary
The Magistrate having jurisdiction, can cancel the order of
maintenance only if his wife in whose favour the maintenance has been
granted is living in adultery or without sufficient cause refused to live
with her husband or if the parties are living separately by mutual
consent. In view of the case in hand, it was held that if the facts are
tested, no such order has been passed by the trial magistrate, nor the
petitioner has invoked the provisions of Clauses (5) of Section 488
quoted above. The order of want for cancellation under the above
provision remains in tact and no other provision can be applied to the
execution proceedings because the order has not been cancelled in this
case. The husband cannot take the plea that the parties have reunited and
resumed cohabitation as a consequence birth of a child took place cannot
be a valid defence available in the execution proceeding for the mere fact
that the husband has to take recourse to Clauses (5) of Section 488
Cr.P.C. It is immaterial that the parties reunited after the maintenance
order was passed which appears a temporary phase as the relations of the
parties got strained again, the wife took recourse to file execution
application for recovery of arrears of maintenance. 1
The proceedings under the Hindu Marriage Act are quite
independent inasmuch as the interim maintenance granted under Section
24 of the Hindu Marriage Act is only for a temporary period during the
pendency of the proceedings before the Matrimonial Court, whereas the
amount awarded by the Judicial Magistrate under Section 125 is not for a
limited period, but is for period during which the wife and another
dependants of the husband are neglected. It is only after final verdict of
the Civil Court, declaring of their respective rights, the husband may
approach the Criminal court to cancel or vary the order of maintenance. 2
The proceedings under Section 24 of the Hindu Marriage Act and
under Section 125 Cr.P.C. are different and that they are invoked for
different purpose before the courts of competent jurisdiction. They do
not overlap over the other. The proceedings under Section 24 of the
Hindu Marriage Act are only invoked to meet a special situation where
the proceedings are pending before the Matrimonial Court and to
withstand the litigation the uncared wife is provided with succour
(maintenance) pendente lite. The benefit granted under Section 24 is
purely temporary in nature and gets extinguished after the matter is
finally decided. It is only after the rights of the parties are finally
would be the date of the cancellation itself. There may be cases in which
the husband is satisfied that the wife may live separately; but after the
order for maintenance is made he offers to take her back. In such a
situation it would be obviously unjust to cancel the grant of maintenance
with effect from the date of the original order. 1
1 Sadashiv Nathu vs. Parubai W/o Sadashiv, AIR 1967 MP 85: 1966
Jab LJ 658: 1966 MPLJ 1065: 1967 Cri LJ 379.
2 Sitaben vs. Rameshbhai Maganbhai Parmar, II (1985) DMC 147
Gujarat.
3 Sitaben vs. Rameshbhai Maganbhai Parmar, ibid.
322 Law of Maintenance
Change in circumstances
It is the duty of the Court to see that the amount of maintenance
is not only the same in nominal terms but remains the same in real terms.
In the case of salaried people, the restoration of the salary to the real
terms is achieved by way of grant of dearness allowance. Enhancement
of maintenance on account of rise of cost of living index would serve the
same purpose and does not bring about any modification of the real
amount and does not require any special change in the circumstances of
the person. The simple fact that the nominal amount does not represent
the same real amount as granted, is a sufficient change in
the circumstances. 2
Child
The fact that such an interpretation would be expedient and
convenient is not always a sure guide, as the legislature, if necessary,
can intervene to fill up any lacuna. In this view it was held that the
expression “child” in Section 488 Crl. P.C. while it postulates the
immediate relationship of the claimant for maintenance with the person
who is called upon to pay maintenance by the closely following neutral
pronoun “itself” signifies and emphasizes the infancy of the claimant.
The inability to maintain “itself” is related to infancy. The expression
“child” of course cannot be confined to a child of tender years, a person
below 14 or 16, as has been contended for in some cases, since in that
case there can be no doubt about its inability to maintain itself. The
question of ability to maintain one-self can arise only in the case of
Christian Marriage
It is the public policy in this Republic to give protection to
woman who are treated to be a class of suffers. While considering right
and liabilities, this is to be kept in mind by Courts. Section 125,
Criminal Procedure Code has created a forum where all wives are given
maintenance on proving circumstances. However, the same is not
conclusive in view of the nature of enquiry conducted by it. Relationship
can be proved in a Civil Court contrary to the finding of the Criminal
Court. Finding of a Criminal Court would not be res judicata in respect
of relationship between the parties. Since Criminal Court gives
temporary relief, the maximum amount of maintenance it can grant is
limited. When there is a divorce proceeding, Court competent to grant
divorce is vested with powers to grant alimony. Both Criminal Court and
the matrimonial court can grant alimony or maintenance as an interim
protection. This clearly leads to the conclusion that a Christian wife has
right to be maintained by her Christian husband which is a part of the
right and obligation of marriage. No custom is required to be pleaded or
proved in support of the same. This is a need of the society without
which a good society shall perish. Accordingly, a person who contests
the right of the Christian wife has to prove that there is either a statutory
or customary prohibition for a Christian wife to get maintenance from a
Christian husband. 2
When there is no such evidence, a Christian wife has a right
maintenance from her Christian husband where he is responsible for a
situation under which the wife is compelled to leave the roof of her to
set husband. 3
Right of such wife for maintenance has also been accepted by the
Madras High Court. 1
Compromise
A perusal of Section 488, Criminal Procedure Code shall make it
clear that it contemplates of only two kinds of orders. The application
can be allowed and the amount of maintenance determined or the
application can be dismissed. A Magistrate cannot pass an order not
allowing maintenance for the present but to direct that in the event of
certain conditions coming into existence maintenance allowance shall be
payable. Consequently, such order shall amount to dismissal of
application under Section 488, Criminal Procedure Code on account of
the husband and wife coming to terms and the wife going back to live
with her husband. When the application under Section 488 had in
substance been dismissed, there could be no question of the execution of
the order passed thereon. 2
In other words, on the basis of this order the Magistrate can not
direct the recovery of the maintenance allowance as agreed upon between
the parties. To say that after the parties have come to a compromise, the
Criminal Court ceases to have jurisdiction, shall be against the law.
Section 488, Criminal Procedure Code gives a summary power to the
Magistrate. His orders are not final, in the sense that they can be
reconsidered by a civil Court in a suit instituted by the wife or by the
husband. The jurisdiction of the civil Court is unlimited; while the
Magistrate can pass an order for the maintenance of the wife and
children for the period that no order to the contrary is passed by the
Court. In the circumstances, there was no illegality by the Magistrate in
taking cognizance of a second application under Section 488, Criminal
Procedure Code. 3
Any decision in an earlier proceeding shall be binding on the
parties, but a relief previously refused can be prayed for and granted on
fresh grounds or on similar grounds having come into existence since
after the dismissal of the earlier application. Consequently, where an
application under Section 488 Cr.P.C. is dismissed on the ground that the
husband and the wife had come to terms and the wife had started living
with the husband, she can make another application if the husband later
1 Stella Pakaim vs. K.P.P. Rajaih Ratnam, AIR 1966 Mad 225.
2 Nathuram vs. Ramsri, AIR 1965 All 129: 1964 All LJ 72: 1965 (1)
Cri LJ 273.
3 Nathuram vs. Ramsri, ibid.
Summery remedy—Co-habitation or Compromise between parties 325
1 Nathuram vs. Ramsri, AIR 1965 All 129: 1964 All LJ 72: 1965 (1)
Cri LJ 273.
2 Ammukutty Amma Ponnamma vs. Narayana Panikkar
Neelakantan, AIR 1967 Ker 216: 1967 Ker LT 258: ILR (1967) 1 Ker
607: 1967 Ker LR 232: 1967 Ker LJ 379: 1967 Mad LJ (Cri) 305:
1967 Cri LJ 1334.
3 Ammukutty Amma Ponnamma vs. Narayana Panikkar
Neelakantan, ibid.
4 Mahua Biswas vs. Swagata Biswas, 1998 (2) SCC 359: 1998 (1)
MPWN 186.
326 Law of Maintenance
parties, namely, the neglected wife. If an order for maintenance has been
made against the deserter it will operate until vacated or altered in terms
of the provisions of the Code itself. If the husband has a case under
Section 125(4), (5) or Section 127 of the Code it is open to him to
initiate appropriate proceedings. But until the original order for
maintenance is modified or cancelled by a higher court or is varied or
vacated in terms of Sections 125(4) or (5) or Section 127, its validity
survives. It is enforceable and no plea that there has been cohabitation in
the interregnum or that there has been a compromise between the parties
can hold good as a valid defence. A statutory order can ordinarily be
demolished only in terms of the statute. That being absent the Magistrate
will execute the order for maintenance. 1
Constitutional goal
Though Section 125 benefits a distressed father also, main thrust
of the provision is to assist woman and children in distress. That is fully
consistent with Article 15(3) of the Constitution which states that the
prohibition contained in the Article shall not prevent the State from
making any special provision for woman and children. Article 39 of the
Constitution may be noted which states, inter alia, that the State shall, in
particular, direct its policy towards securing that the citizens, men and
woman equally, have the right to an adequate means to livelihood, that
children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and
material abandonment. 2
Customary divorce
In Are Lachiah vs. Are Raja Mallu, 3 it has been laid down with
reference to Section 29 (2) of the Hindu Marriage Act:
“Nothing contained in this Act shall be deemed to affect any right
recognized by custom or recognized by any special enactment to
obtain dissolution of a Hindu Marriage, whether solemnized
before or after the commencement of the Act. Thus, the Act does
not disturb the position which a customary divorce occupied
1 Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: 1979 AIR (SC)
442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377:
1979(1) APLJ 31.
2 Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238
Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker
479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All
Cri LJ 224.
3 (1963) 1 Andh WR 295.
Summery remedy—Date from which payment is to be made 327
Thus the status of wife has got to be seen on the date when the
application under Section 125 Cr.P.C. is filed. If she retains that status
the application is maintainable and if she loses that status, the
application is not maintainable as on the date it is filed. 3
‘The view indicated by the learned Single Judge of the said Court
is that under Section 21 of the Act ordinarily the amount of
maintenance is granted from the date of the order passed by the
Court. Section 24 of the Act nowhere postulates such a condition.
The foundation for the view has not been indicated in the
judgment. Therefore, the decision of Madhya Pradesh High Court
in this regard is of no assistance to the petitioner. So far as the
decision of the Rajasthan High Court is concerned, the only
principle laid down by the Court seems to be that grant of
maintenance pendente lite is discretionary which as to be
exercised on sound legal principles and not on caprice or humour.
As a general principle, there can be no reason to differ with the
view expressed, but there is nothing is the decision which throws
any light on the controversy relating to the date from which the
interim maintenance can be awarded. 1
Clause (2) of Section 125 stated that the Court can order
maintenance from the date of the order or if so ordered, from the date of
the petition. Therefore the discretion is given to the Court. Merely
because of the words ‘so ordered’ contained in Section 125(2) Crl. P.C.,
‘from the date of the application for maintenance’, it cannot be said the
date of the petition. If the Court considers the circumstances of a
particular case and order maintenance from the date of the petition, it
cannot be said that the Court exercised the discretion which is not vested
in it. It must be noted that in cases where special reasons are to be
assigned, the Criminal Procedure Code has specifically stated so in the
provisions. But, there is no mention specifically in Section 125(2)
Criminal Procedure Code that the Court must give special reasons for
awarding maintenance from the date of the petition. 2
It is generally expected that maintenance shall be payable from
the date of the order. If the Magistrate wants that the maintenance can be
awarded from the date of the filling of the application, the Magistrate
can do so, by invoking the provisions of Section 125(2) Criminal
Procedure Code. If no mention has been made in the order of the
Magistrate about the date of the commencement of the claim, it has to be
construed that it will take effect from the date of the order. In this case,
the Magistrate passed the order granting maintenance with effect from
the date of filing of the petition. No where the Session Judge has
mentioned that the order of maintenance will take effect from the date of
filing of the revision or from the date of passing the order. It is only the
figure of maintenance that has been substituted by enhancement of the
amount. When two views are possible basing on the facts and
circumstances in awarding the maintenance, the view that in favourable
to the maintenance-holder has to be preferred. 1
It is perfectly permissible under Section 125 Sub-section (2) of
the Criminal Procedure Code to grant maintenance from the date of
application. 2
Defence
The Code is complete on the topic and any defence against an
order passed under Section 125, Cr.P.C. must be founded on a provision
in the Code. Section 125 is a provision to protect the weaker of the two
parties, namely, the neglected wife. If an order for maintenance has been
made against the deserter it will operate until vacated or altered in terms
of the provisions of the Code itself. If the husband has a case under
Section 125(4), (5) or Section 127 of the Code it is open to him to
initiate appropriate proceedings. But until the original order for
maintenance is modified or cancelled by a higher court or is varied or
vacated in terms of Sections 125(4) or (5) or Section 127, its validity
survives. It is enforceable and no plea that there has been cohabitation in
the interregnum or that there has been a compromise between the parties
1 Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: AIR 1979 SC
442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377:
1979(1) APLJ 31.
2 Gurmit Kaut @ Pritam Kaur vs. Harjit Singh, II (1982) DMC 24
P&H.
3 Ratan Lal vs. 2nd Addl . Session Judges, Mathura, I (1994) DMC 20
All.
334 Law of Maintenance
Determination of paternity
When there was no evidence to show that the mother of the
minor-applicant was having sexual intercourse with any other person, it
was held that when it was proved that she had sexual intercourse with the
applicant alone, it cannot be said that the evidence led on behalf of the
Dismissal in default
Order 9, Rule 9, Civil Procedure Code, 1908 provides that where
a suit has been dismissed for the plaintiff’s non-appearance even though
the defendant had appeared when the suit was called for hearing, the
plaintiff is not eligible to bring a fresh suit on the same cause of action
but may apply to set aside the order of dismissal on showing sufficient
cause for his non-appearance. The bar contemplated under the provision
is a prohibition to bring a new suit on the same cause of action. On the
face of it, the provision cannot apply to an application under Section
125, Criminal Procedure Code and hence even if a suit is dismissed for
default and another suit on the same cause of action would be barred, yet
an application under the Criminal Procedure Code statutorily provided
for would not suffer from any disqualification. 2
In the case of Raju vs. State, 3 it was held that in view of the
provisions of Section 362 of the Criminal Procedure Code, 1973 the
Court’s power to alter or review its judgment or order, through which a
case is finally disposed of was limited only to the correction of clerical
or arithmetical errors. It had no other power to recall its own judgment
or order or set it aside in exercise of its inherent powers. Again, earlier
in the year 1980 vide the case of Shymta vs. Dangra, 4 the Court was
dealing with a similar application under the old provision of Section 488
Criminal Procedure Code. It was a wife’s maintenance petition and it
was specifically held that the court had no power to restore it if it had
been dismissed for default. It was also observed that Section 488
Criminal Procedure Code contemplates only on situation in which the
restoration of an order passed under that provision of law can be made
and it is only when an ex parte order has been passed against a husband.
Reference was made to the case of Krishna Rao Palne vs. Pramila Bai, 5
and it was held that the Magistrate had no power under Section 561-A to
order restoration. The inherent powers were possessed only the by the
powers High Court and even if the proceedings under Section 488
Criminal Procedure Code are quasi judicial in nature, that will not mean
that the Magistrate can get all the powers of the Civil Court. Reliance
was also placed on the case of Hakimi Jan Bibi v. Mouza Ali, 1 in which a
Division Bench of Calcutta High Court had held that the law does not
empower the Magistrate to hear an application for maintenance under
Section 488 Criminal Procedure Code dismissed for non-appearance.
A similar point was considered by the Supreme Court 2 the Court
held that so far as the accused is concerned, dismissal of a complaint for
non-appearance of the complainant or his discharge or acquittal on the
same ground is a final order and in the absence of any specific provision
in the Code a Magistrate cannot exercise any inherent, jurisdiction to
restore the case. A second complaint is permissible in law if it could be
brought within limitations imposed by the Supreme Court. 3 Filing of a
second complaint in not the same thing as reviving a dismissed
complaint after recalling the earlier order of dismissal. The Criminal
Procedure Code does not contain any provision enabling the Criminal
Courts to exercise such inherent power. What the Court has to see is not
whether the Criminal Procedure Code contain any provision prohibiting
the Magistrate from entertaining an application to restore a dismissed
complaint, but the basic task should be to find out whether it contains
any provision enabling the Magistrate to exercise the inherent
jurisdiction which he otherwise does not have. An earlier decision of the
Supreme Court in earlier case, 4 was quoted and relied upon. This being
the legal position, it was held that it is not open to the learned Magistrate
to direct the restoration of the petition under Section 127 Criminal
Procedure Code. 5
Keeping in view the benign provisions in Section 125 enacted to
ameliorate economic condition of neglected wife and discarded divorces
and to save enumerated persons from vagrancy and destitution, welfare
laws must be so read as to be effective delivery systems of salutary
objects sought to be served by the legislature. When beneficiaries are
weakens sections like destitution woman, spirit of Article 15(3) of the
Constitution must be light meaning of Section 125 and its sister clauses
1 2 Cr.LJ. 213.
2 Maj. Gen. A.S. Gauraya v. S.N. Thakur, AIR 1986 SC 1440.
3 Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC
876.
4 Bindeshwari Prasad Singh vs. Kali Singh, AIR 1977 SC 2432.
5 Pramod Kumar Mittal vs. Kanchan Devi, I (1988) DMC 289 All.
Summery remedy—Divorced wife 337
1 Aruna Kar vs. Sarat Dash Nachhi, I (1993) DMC 153 Orissa.
338 Law of Maintenance
delinquency. In this view of the matter, it was held that a divorced wife
is not living separately with the husband ‘by mutual consent’ and would
therefore be entitled to receive maintenance under this provision. 1 Mere
divorce does not end the right to maintenance. 2
Claim for maintenance under the first part of Section 125,
Criminal Procedure Code is based on the subsistence of marriage while
claim for maintenance of a divorced wife is based on the foundation
provided by Explanation (b) to Sub-section (1) of Section 125, Criminal
Procedure Code. If the divorced wife is unable to maintain herself and if
she has not remarried, she will be entitled to maintenance allowance. The
Calcutta High Court had an occasion to consider an identical situation
where the husband had obtained divorce n the ground of desertion by
wife but she was held entitled to maintenance allowance as a divorced
wife under Section 125, Criminal Procedure Code and the fact that she
had deserted her husband and on that basis a decree for divorce was
passed against her was not treated as a bar to her claim for maintenance
as a divorced wife. 3 The Allahabad High Court also took a similar view.
These decisions were approved as representing the correct
legal position. 4
The wording used by the Legislature is not a woman against
whom a decree of divorce was obtained by her husband but the woman
who has been divorced by her husband. If the Legislature had wanted to
include a woman against who a decree of divorce is obtained by her
husband, the Legislature would have used the appropriate phraseology to
cover such woman as done in the second limb of the explanation to cover
the case of a woman who herself obtains divorce from her husband. The
fact that different phraseology has been used for the first limb of
Explanation (b) would mean that Legislature never intended to include
woman against whom decree of divorce was obtained by her husband
from a Court of Law proving some fault on the part of the wife. The
words used by the Legislature in the said explanation would not justify
different interpretation. On the contrary, the words are very clear which
do not include a woman whose marriage has been dissolved by decree of
divorce at the instance of her husband. If the interpretation which was
placed by some of the Courts is accepted so as to include woman against
Section 125 Criminal Procedure Code can be at the rate higher than the
rate at which interim maintenance is granted in divorce proceedings
pending in a Civil Court?’ The question was answered in the affirmative
and after considering the scheme and purpose of Section 125 Criminal
Procedure Code in the concluding paragraph and it was observed:
“We have been told by S.T. Desai that the divorce proceeding
terminated adversely to his client but an appeal in pending. If the
appeal ends in divorce being decreed, the wife’s claim for
maintenance qua wife comes to an end and under Section 127 of
the Code the Magistrate has the power to make alterations in the
allowance order and cipherise it. We make the position clear that
confusion should breed fresh litigation.”
Later on noting a patent error which unfortunately crept in the
above observations, the legal position was clarified after hearing both
sides and a new paragraph was substituted in place of the above
paragraph with the following observation:
“The last paragraph in the judgement concludes with the
statement—‘If the appeal ends in divorce being decreed, the
wife’s claim for maintenance qua wife comes to an end under
Section 127 of the Code, the Magistrate has the power to make
alterations in the allowance order and cipherise it.”
The judgment would seem to indicate that once divorce is decreed
the wife ceases to have any right to claim maintenance and that
such an impact can be brought about by an application under
Section 127 of the Code. It is clear that this conclusion
contradicts the express statutory provision. The advocates on both
sides agree that this is a patent error and further agree that the
law may be correctly stated and the contradiction with the statute
eliminated. Therefore, we direct that in substitution of the last
paragraph, the following paragraph will be introduced:
We have been told by Shri S.T. Desai that the divorce proceeding
has terminated adversely to his client but that an appeal is
pending. Whether the appeal ends in divorce or no, the wife’s
claim for maintenance qua wife under the definition contained in
the Explanation (b) to Section 125 of the Code continues unless
parties make adjustments and come to terms regarding the
quantum or the right to maintenance. We make the position clear
that mere divorce does not end the right to maintenance.”
The italicised portion should remove doubt if any on the true
legal position on the question involved. 1
Where a divorce had taken place between the parties and the
parties were living separately because of the divorce, it cannot be said
that they are living separately by mutual consent as husband and wife
and, therefore, the applicant is disentitled from receiving maintenance.
Though the definition of wife by virtue of Explanation-B to Section
125(1) includes a woman who has been divorced by or has obtained a
divorce from her husband and has not re-married in the very nature of
thing, in Sub-section 4 of Section 125, the word ‘wife’ so for as the
question of living separately by mutual consent is concerned, cannot be
said to include a divorce wife also. Reading in the proper context, a wife
who has been divorced by her husband, or has obtained a divorce from
her husband and has not remarried, is by the very fact of divorce, has to
live separately from her husband, she is not expected at all to live, with
her husband and, therefore, the question of her living separately by
mutual consent does not arise. Consent to live separately is required only
when there is an obligation to live together. When the obligation to live
together itself has come to an end, living separately on a divorced couple
cannot be said to be living separately by mutual consent for the purpose
of Sub-section 4 of Section 125 disentitling the divorced wife from
claiming maintenance. The very purpose of the Explanation B to sub-
section (4) of Section 125 of the Cr.P.C. shall be defeated it a divorced
wife is expected to live or in taken to be living separately from her
husband by mutual consent. The harmonious construction of the two
provisions can only be that a divorced wife shall not be deemed to be
living separately from her husband by mutual consent, she has to be
taken to be living separately from her husband under the compulsion of
failure of her marriage which is acknowledged by the decree of divorce. 1
Dropping of proceedings
Neither Section 244, nor Section 245 Criminal Procedure Code
can be made applicable to proceedings under Section 125 Cr.P.C. Section
244 and 245 Cr.P.C. apply to the cases tried for criminal offences and
that is a general procedure applicable to all such category of cases
instituted otherwise than on a police report. But, a special procedure is
carved out in so far as Section 125 Cr.P.C. proceedings are concerned. It
cannot be equated to private complaint so that theory of Section 244 and
245 Cr.P.C. can be imported. In fact, for Section 125 Cr.P.C.
proceedings, a separate and specific procedure has been formulated and
provided under Section 126 of Cr.P.C. The Magistrate trying a
maintenance case under Section 125 Cr.P.C. shall follow the procedure
contemplated only under Section 126 Cr.P.C. and not otherwise. Under
Section 126 Cr.P.C. either application of Section 245(1) Cr.P.C. or even
the analogy of the same cannot be pressed into service. Procedure under
Section 126 Cr.P.C. will not approve any such action by the Magistrate
to drop the proceedings without taking the evidence.
The evidence to be taken is both, oral and documentary and the
said procedure cannot be dispensed with. 1
In the above case, the Court of Magistrate adopted a very strange
policy of hearing the arguments advanced on behalf of the parties merely
basing on some documents filed by the respondent. It was held that such
a procedure is unknown to Section 125 Cr.P.C. proceedings. It was
further observed as under:
‘In fact, it is apt to state that the Magistrate has adopted short-
circuit method to terminate the proceedings and in that process
succumbed to the dilatory tactics of the 1 st respondent to avoid
the enquiry and to circumvent the orders previously passed this
Court on 30.1.1992 dismissing the quash proceedings. The 1 st
respondent cannot avoid the enquiry and he has to face the same.
There is no option for the Magistrate, but to take the evidence
both, oral and documentary, hear the arguments and pass a
reasoned order on merits.’ 2
Effect of Act of 1986
A plain reading of the Muslim Women Act would show that it has
provided a particular procedure to be followed by a Magistrate while
dealing with an application under Section 125 Criminal Procedure Code
by a divorced Muslim lady and the procedure is almost a time bound
programme. Under Section 7 of the Act, every application by a divorced
woman under Section 125 or 127 of the Code of Criminal Procedure,
1973 (2 of 1974), pending before a Magistrate on the commencement of
this Act, had been directed to be decided and disposed of in accordance
with the provisions of that Act. It would in effect means that where the
proceedings are pending before a Magistrate on the date of enforcement
of the Act they would be disposed of according to the provisions of that
Act and for that disposal the provisions of the act would over ride the
provisions of the Code of Criminal Procedure. Under Section 3 of the
Act, the provisions have been made for recovery of maintenance for the
period of date or the return of dowry and payment of dower within a
short time. That time can not be obtained again. If there have been no
payment of dower or return of articles of dowry because at that time they
were all redundant for the purposes of maintenance all that cannot be
done now. It would be only after the return of those articles that the
provisions of Section 4 (payment of maintenance) would be applicable,
1 Sahira Banu vs. Shaik Basheer Ahmed, I (1996) DMC 382 AP.
2 Sahira Banu vs. Shaik Basheer Ahmed, ibid.
344 Law of Maintenance
and therefore, the provisions of this Act would not be available. Not only
this, after the enactment of this under Section 5 therefore, the parties
could have had an option to convey before the Magistrate as to whether
they would like to be governed by the provisions of Section 125 to 128
of the Code of Criminal Procedure. 1
Effect of divorce
Claim for maintenance under the first part of Section 125,
Criminal Procedure Code is based on the subsistence of marriage while
claim for maintenance of a divorced wife is based on the foundation
provided by Explanation (b) to Sub-section (1) of Section 125, Criminal
Procedure Code. If the divorced wife is unable to maintain herself and if
she has not remarried, she will be entitled to maintenance allowance. 4
The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of
desertion by wife but she was held entitled to maintenance allowance as
a divorced wife under Section 125, Criminal Procedure Code and the fact
that she had deserted her husband and on that basis a decree for divorce
was passed against her was not treated as a bar to her claim for
maintenance as a divorced wife. 5
1 Syed Akbar Ali vs. Session Judge, Moradabad, II (1991) DMC 626
All.
2 Raj Bahadur Sinha Singhel vs. Sona, II (1984) DMC 41 Bombay.
3 Raj Bahadur Sinha Singhel vs. Sona, ibid.
4 Rohtas Singh vs. Ramendri, I (2000) DMC 338 SC: 2000(3) SCC
180.
5 Sukumar Dhibar v. Smt. Anjali Dasi, 1983 Crl.LJ. 36.
Summery remedy—Effect of Section 24 of Hindu Marriage Act 345
Enforcement by imprisonment
Imprisonment is a means of enforcement of payment, and an
order for imprisonment can be passed, only, after there has been
negligence to pay the maintenance. The material question to the
considered is whether such an order of imprisonment can be passed
without, at first, issuing the warrant for levying the amount due. It is no
doubt true that the normal rule is, at first, to try to seek enforcement of
the order by issuing the distress warrant in the manner provided in the
Code for levying fines; but, this rule, is not mandatory, that is, to be
necessarily followed in each and every case without considering the
attending circumstances of the particular case. 6
Section 125 of the Code has been enacted with the object of
enabling the helpless and deserted wife and children to secure the much
needed relief. It has a special social purpose behind it to subserve the
interest of the weaker sections of society i.e. the woman class. The
husband, once the maintenance order is passed against him, cannot be
allowed to play hide and seek by adopting delaying tactics and thus,
make the life of his deserted wife, miserable and reckless for want of
necessary amount to feed herself and her children, if any. The law must
subserve the social purpose and the subtle technicalities of law cannot be
allowed to stand in the way of help and succour which the wife is
entitled to receive by speedy means through the agency of the Court. 1
Section 125(1) opens with the words “if any person having
sufficient means neglects or refuses the maintenance” and Sub-section
(3) of Section 125 provides that “if any person so ordered, fails without
sufficient cause to comply with the order”. Reading these two expression
together, it is obvious that the power under Section 125(3) of the Code
would be exercised and the husband could be detained in jail provided it
is established that at the time of passing the order he has means to pay
and still he declines to comply with the order. Unless the Magistrate
records the finding that the petitioner has means to pay and still declines
to pay, the petitioner could not have been ordered to be detained in jail. 2
In one case it was submitted that under Section 125(3), in the first
instance a warrant to levy the amount as fine should be issued and the
sentence of imprisonment could be passed only if the amount remains
unpaid after the execution of the warrant. Section 421 Criminal
Procedure Code, 1973 provides the procedure for issuing a warrant for
levy of fine. In this case, no such warrant were issued but the order of
the learned Magistrate showed that the husband who appeared in the
Court in response to a notice issued in a miscellaneous petition admitted
that the amount has not been paid and he also had a representation to
make. Under these circumstances, it was held that no useful purpose
would have been served by issuing warrant. 3
However it was observed that in the first instance, a warrant of
attachment of the moveable and immoveable properties must be issued to
satisfy the arrears of maintenance and if after the execution of the
warrant, the whole or any part of the arrears remains unpaid, then and
then alone imprisonment of the defaulter can be ordered by the
Magistrate. The words “for the whole or any part of each month’s
allowance remaining unpaid after execution of the warrant” in Section
125(3) of the Code, will have no meaning if it was the intention of the
legislature that even without recourse to a warrant of attachment a
warrant for imprisonment could be issued. The issue of warrant of
attachment of property is a condition precedent to the issue of a warrant
Enforcement of order
Section 67 of the Indian Penal Code begins with the significant
expression “If the offence be punishable with fine only”. A violation
under Section 488 (3) of the Code of Criminal Procedure 1898 is not an
“offence punishable with fine only” within the meaning of that
expression. Indeed it is not an “offence” in the sense understood in the
Indian Penal Code or under the Criminal Procedure Code, 1898. Section
488 really is a speedy way of providing for the maintenance of neglected
wives and children under Chapter 36, Criminal Procedure Code. From
that point of view it was held that it was strictly not an offence within
the meaning of section 67 of the Indian Penal Code. 3
If an offer is made to maintain a wife by the husband on
condition of her living with him and the wife refused to live with him,
1 Amarjit Kaur @ Ajmer Kaur vs. Baldev Singh, II (1982) DMC 426
P&H.
2 Moddari Bin vs. Sukdeo Bin, AIR 1967 Cal 136 (DB): 70 Cal WN
686: 1967 Cri LJ 335.
3 Moddari Bin vs. Sukdeo Bin, ibid.
Summery remedy—Enforcement of order 349
Ex parte order
The Family Court exercising the jurisdiction under Section
7(2)(a) of the Family Court Act in a petition filed under Section 125 of
the Criminal Procedure Code, 1973 for maintenance, on being satisfied
that there is a prima facie case for maintenance and it is necessary to
pass ex parte order of maintenance has the jurisdiction to pass ex parte
order of interim maintenance. Such interim order can also be revised on
being requested by the respondent by filing an application. Such an order
of maintenance shall always be subject to the final adjudication on the
main petition. 2
1 Sardar Harvindar Singh vs. Amrit Kaur, II (1983) DMC 364 Patna.
2 Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238
Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker
479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All
Cri LJ 224.
3 Makhdum Ali vs. Nargis Bano, I (1983) DMC 40 Delhi.
4 Makhdum Ali vs. Nargis Bano, ibid.
Summery remedy—Finding of Civil Court 353
When the husband chose not to take this remedy, exercise of the
inherent powers was declined for following two reasons:
‘One that the remedy under Section 126 has not been pursued.
Secondly the husband’s conduct throughout the proceedings over
a period of nearly three years has not been meritorious. He has
been appearing, disappearing and reappearing in the case at his
will and pleasure. In a word his behaviour is not deserving of
meritorious consideration.’ 1
Finding of Civil Court
Section 127(2) does not require that the order of the civil court
should be subsequent to the order of the Magistrate. The sub-section will
apply even where the order of the civil court is antecedent but was
brought to the notice of the Magistrate later on. It is urged on this basis
that if an order made under Section 125 of the Code has got to be varied
or cancelled in consequence of a decision of a competent civil court, then
such an order can not should not be made at all.
In respect of Section 488 of the Repealed code 9the predecessor
of Section 125), it was observed 2 that the Magistrate’s jurisdiction to
settle maintenance is only auxiliary to that the civil court:
‘The order to the Magistrate under Section 125 of the Code is a
summary order. The Magistrate cannot usurp the jurisdiction in
matrimonial disputes possessed by the civil court and the
provisions Chapter IX (New) of the Code are subjected to any
final adjudication made by a civil court between the parties
regarding status and civil rights.’ 3
Desertion has not been defined in the Hindu Marriage Act.
Essence of desertion is forsaking and abandonment of one spouse by the
other without reasonable cause and without consent and against the wish
of the other. It is a total repudiation of obligation of marriage. When the
Matrimonial Court decreed the suit for divorce on the finding that the
wife has deserted the petitioner for a continuous period for more than
two years it has to be accepted that she refused to live with her husband
without any sufficient reason. The question therefore was if this finding
1 Biswanath Saha vs. Sikha Saha, II (1986) DMC 321 Calcutta and
Goswami Babupuri Shankarpuri vs. Bhawatiben, II (1983) DMC 29
Gujarat relied in Shantilal Chhaganlal Talati vs. Ashokbhai
Chimanlal Desai, I (1986) DMC 103 Gujarat.
Summery remedy—Formal application 355
‘It appears that the learned Session Judge in view of these two
infirmities in the judgment of the learned Magistrate thought it fit
to re-appreciate the evidence and record his own findings. It
cannot be said that the learned Session Judge has committed any
error in re-appreciating the evidence and recording his own
finding in view of the aforesaid infirmities in the judgment of the
trial court. That which was regarded as an admission cannot be
regarded as the admission of beating nor is it possible to believe
the version of the appellant that she was beaten and driven out
from his house is consistent with the circumstances that it was
her husband who had brought her on a scooter to her father’s
house and left her there. The learned Session Judge after
reappreciating the evidence on record, recorded a finding that it is
not proved that she was beaten and driven away by the husband.
That is finding of fact and unless it is shown that the finding is
unreasonable this Court will not interfere.’ 1
Formal application
The Section 126 opens with the words “Proceedings may be taken
against any person.” The phrase “proceedings may be taken against any
person” is very important. It does not indicate that the proceedings be
taken on an application being filed by a person who claims maintenance.
Either Section 125 or Section 126 does not contemplate any formal
application to be filed by any person whomsoever. In a given case the
attention of the learned Magistrate may be drawn by some welfare
institution or by any public spirited social worker that a helpless wife or
the helpless children or parents as the case may be are being neglected
by a person who is otherwise bound to maintain them under the law and
that such person is neglecting and refusing to maintain them. On such
information being received the learned Magistrate himself may draw a
memorandum of the information received by him and may direct the
office to treat such memorandum of information as an application for
maintenance. On such memorandum which is treated as an application he
can issue a notice against the person, liable to provide maintenance.
There is nothing in the Code to show that such a procedure cannot be
adopted by the learned Magistrate. This view is in consonance with the
basic object underlying the provisions for providing maintenance. The
basis object is to prevent vagrancy by compelling a person to support his
wife or child or father or mother unable to support himself/herself.
Another principal object is to device speedy summary remedy for
providing maintenance. When such is the benevolent object underlying
the provisions of maintenance, ‘Setan’ of technicality cannot be allowed
Fraudulent marriage
Where consent to a marriage has been obtained by force or fraud,
such a marriage is invalid unless ratified after the coercion has ceased or
the duress has been removed, or when the consenting party being
undeceived, has continued the assent. 2
In this case, it was found that the material on record was totally
short coming to any finding either on the question of force or fraud. The
respondent’s own case on oath in the proceedings had been that
petitioner was his wife. It was therefore held that the present proceedings
would, therefore, have to be considered as decided on the assumption
that respondent and petitioner are husband and wife of each other. It was
however clarified that the above construction was placed only in the
extremely limited context of a summary proceeding for maintenance
under Section 125 of the Code of Criminal Procedure. It was held that
nothing stated or observed in the proceedings can in the least affect the
rights and liabilities of either of the parties in any matrimonial
proceedings as such instituted by one against the other. If any such
proceedings are instituted the same will have to be decided on their own
merits and in accordance with law irrespective of the observations made
in summary proceedings and irrespective of the order passed in the
present proceedings. 3
Illegitimate marriage
For a woman claiming maintenance under Section 488, Criminal
Procedure Code it is essential for her to establish that she was the wife of
the opposite party in accordance with the provisions of the personal or
the Civil law applicable regarding the marriage between the parties. It
follows, therefore, that what is contemplated by the term ‘wife’ referred
to in Section 488, Criminal Procedure Code is legally wedded wife in
accordance with the Personal Law of the parties or the Civil Law
governing the marriage between the parties. It would not, therefore,
cover the case of a women whose marriage with the respondent is void
procedure does not cover entirely the same ground as the civil liability of
the husband or father or son under Personal Law to maintain his wife,
child or parent. When substantial issue of civil nature are raised, the
remedy lies only in civil courts. If that is so, there is no substance in the
contention of the husband that the revisional court has not considered the
legal issue involved in the case. The husband is not without any remedy
and this case being one of summary nature and when the point, now
raised, was not raised at the earliest point of time, this court would not
entertain the said ground at this belated stage. 1
However the view of the Supreme Court is that the attempt to
exclude altogether the personal law applicable to the parties from
consideration should be repelled. The section 125 of Criminal Procedure
Code, 1973 has been enacted in the interest of a wife, and one who
intends to take benefit under sub-section (1)(a) has to establish the
necessary condition, namely, that she is the wife of the person
concerned. This issue can be decided only by a reference to the law
applicable to the parties. It is only where applicant establishes her status
on (or) relationship with reference to the personal law that an application
for maintenance can be maintained. The appellant cannot rely on the
principle of estoppel so as to defeat the provisions of the Act. So far as
the respondent treating her as his wife is concerned, it is again of no
avail as the issue has to be settled under the law. It is the intention of the
legislature which is relevant and not the attitude of the party. The
marriage of a woman in accordance with the Hindu rites with a man
having a living spouse is a complete nullity in the eye of law and she is
not entitled to the benefit of Section 125 of the Code. 2
Ingredients to be proved
The wife is required to aver in the petition following things:
(i) she is the wife of the non-applicant;
(ii) that the non-applicant has sufficient means, yet he is refusing
or neglecting to maintain her; and
(iii) that she herself is unable to maintain herself.
To attract the provisions of Section 125 of the Code, it is
necessary to establish that a person having sufficient means neglects or
refuses to maintain his wife who is unable to maintain herself. Sub-
section (4) of the said section provides that a wife who is living in
Interim maintenance
The proceeding under Section 125 Criminal Procedure Code are
of a summary nature. They are for the protection of deserted wife, minor
children, mother or father and to save them from starvation. When the
learned Magistrate himself found that the petitioner was adopting
delaying tactics in disposal of the case, it was held that Magistrate
himself should have awarded the interim maintenance to the mother,
irrespective of the fact whether such application was made or not. 1
Interpretation
Section 125 Cr.P.C., having a social purpose, its various clauses
in their interpretation must receive a compassionate expanse by the Court
in its generous jurisdiction, a broader perspective and appreciation of
facts and their bearing on essential ingredients must govern the ultimate
verdict not chopping little logic or tinkering with the niceties of
interpretation and technicalities of law. 2
made not by any such motive but under pressing circumstances and with
the aim of getting back the wife from the possession of others, and
further if the husband recants that allegation and is sincerely willing to
keep the woman with him, there will be no justification for the woman
within the meaning of Section 488, Criminal Procedure Code to refuse to
go with the husband. 1
The crucial date for ascertaining whether a wife is entitled to live
separately and maintenance is the date on which the Magistrate passes
the order. The Magistrate is required to take into consideration the facts
and circumstances existing on that date. In this case it was found that
even assuming that the wife was in the wrong in leaving the husband,
still on the date when the Magistrate passed the order, she was entitled to
live separately because of the action of the husband in contracting
second marriage. The husband contracted second marriage during the
pendency of proceedings under Section 125 of the Code. Once the
husband contracted the second marriage then the first wife was entitled
to live separately. Therefore it was held that whatever may have
transpired earlier, that loses all its relevance when on the date of the
order passed by the Magistrate the husband had contracted
second marriage. 2
The separate living must be the result of a deliberate and express
agreement between the parties. A hasty rejoinder to a husband, who in
the course of a quarrel was manoeuvring for a consent from a wife, is not
a consent within the meaning of the section. Similarly, living separately
under an agreement settled by a panchayat to whom disputes between the
husband and wife had been referred is not living separately by mutual
consent. “Mutual consent” as used in sub-section (4) means a consent on
the part of the husband and wife to live apart, no matter what the
circumstances may be. Where a wife refuses to live with the husband on
some specific ground such as cruelty, or the fact that he is keeping
another wife, it cannot be said that the husband and wife are living apart
by mutual consent if the husband does not insist that the wife should live
with him. Where a husband is unwilling to allow his wife to live him, or
has taken a second wife, the only course open to such wife would be to
live apart and if she, under such circumstances agreed to accept
maintenance and live apart, such separate living would not be deemed to
be the result of mutual consent. The test therefore should be to find out if
1 Prabhawati Devi vs. Radhey Shyam Tripathi, AIR 1965 All 598:
1965 (2) Cri LJ 705 (2).
2 Mustafa Shamsuddin Shaikh vs. Shamshed Begum Mustafa
Shaikh, I (1991) DMC 34 Bom.
Summery remedy—Legitimacy of child 363
the agreement for separate living and payment of maintenance was the
outcome of the desire of both parties, independently reached by each of
them, or if one of the parties was forced to submit by circumstances to
such agreement. Where the wife is not prepared to live in a separate
house but insists on living with the husband, but he starts living separate,
or where the husband having an option to live with his wife chooses to
live separate, it cannot be said that they are living separately by mutual
consent. But where each party finds it impossible to live amicably and
comfortably with the other and each party and there is consent that they
should live separately, the separate living is by mutual consent. If the
Court finds that the husband and wife are living separately by mutual
consent, no order can be passed under the section, as the Criminal Court
is not intended to be used for creating facilities for separation between
husband and wife or for fixing alimony. 1
Legitimacy of child
The questions whether the one claimant was the married wife of
the respondent and whether the other claimant was the legitimate or
illegitimate child of the respondent, are pre-eminently questions of fact.
When the learned Magistrate after considering the evidence, as adduced
by the parties, held that the appellant No. 1 was not the wife of the
respondent and he further held on the basis of the evidence on record that
the appellant No. 2 was the illegitimate child of the respondent; after
considering the evidence on record it was held that the learned Judge of
the High Court committed an error in making a re-assessment of the
evidence and coming to a finding that the appellant No. 2 was not the
illegitimate child of the respondent. The High Court in its revisional
jurisdiction was not justified in substituting its own view for that of the
learned Magistrate on a question of fact. 3
On the sole ground that the child had been born in about 7
months’ time after the marriage it cannot be concluded that the child
should have been conceived even before the consummation of the
1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
(SC) 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr)
237: 1987 All WC 627.
Summery remedy—Limitation for enforcement 365
may have been effected for other reasons and not on account of the wife
giving birth to a child conceived through some one else. It was also held
that even if the child had been born after a full-term pregnancy it has to
be borne in mind that the possibility of the respondent having had access
to the appellant before marriage cannot be ruled out because they were
closely related and would therefore have been moving in close terms. All
these factors negate the plea of the respondent that the minor child was
not fathered by him. In these circumstances it was held that the proper
course for the High Court, even if entitled to interfere with the
concurrent findings of the Courts below in exercise of its powers under
Section 482, Cr.P.C., should have been to sustain the order of
maintenance and direct the respondent to seek an appropriate declaration
in the Civil Court, after a full-fledged trial, that the child was not born to
him and as such he is not legally liable to maintain it. Proceedings under
Section 125, Cr.P.C. are of a summary nature and are intended to enable
destitute wives and children, the latter whether they are legitimate or
illegitimate, to get maintenance in a speedy manner. 1
Limitation
Section 125 Criminal Procedure Code has not restricted the
period of limitation to claim maintenance. When the statute has not
prohibited any wife to claim maintenance with any period of limitation, a
party is not entitled to plead that claimant has waived her right to claim
maintenance due to the long lapse of 10 or 12 years after she left his
house. 2
In this case it was held that it was possible that due to the
changed circumstances in her parents house, her parents may not be
willing to maintain her and they may not be in a position to maintain her
since other children have grown up and some other problems might have
cropped up in her family. Under these circumstances, the husband was
held not entitled to raise the plea that the wife had waived her right to
claim maintenance after a long lapse of 12 years. 3
1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237:
1987 All WC 627.
2 Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP.
3 Golla Seetharamulu vs. Golla Rathanamma, ibid.
366 Law of Maintenance
1 5th Edition
2 Potel vs. IRB (1990) TR 325
3 as interpreted in (1971) 2 All ER page 504 between the same
parties
4 Takkelapally Laxmamma vs. Takkelapally Rangaiah, II (1991) DMC
628 AP.
Summery remedy—Limitation for enforcement 367
defence to the defaulting husband to deprive the wife who has been
vigilant and has come to the Court with an application for recovering the
amount of arrears and for an order for the monthly allowance being
regularly paid to her. The prayer for recovering the amounts as and when
they fall due is implicit in the application. In the circumstances of the
case, there was no need during its pendency to multiply applications for
the purpose. Any fresh application would only have been in continuation
of the prayer already made. 1
The first proviso to Sub-sec. (3) of Section 125 Cr.P.C. is clear
and unambiguous. Acquiescence of the opposite party cannot confer
jurisdiction on the Magistrate to enlarge the same. In certain
circumstances, an application can be made for a period beyond one year,
e.g., where a pending application has been closed for statistical purposes
and fresh application is filed for the period covered by earlier application
and the period subsequent thereto etc. 2
The provision has been enacted to prevent person in whose favour
an order for maintenance has been made from being negligent and
allowing the arrears to pile up so that their recovery becomes a hardship
so far as the person from whom recovery is to be made is concerned. The
Court does not enforce more than one year’s arrears. 3
Section 6 dealing with legal disability is applicable in view of
Section 29(2) of Indian Limitation Act, 1963 as the application of
Section 6 there of is not specially excluded under Chapter IX of Criminal
Procedure Code. The minors are not sui juris and the mere fact that they
can be represented by mother, father or other guardians is of no
consequence. Section 6 of the Indian Limitation Act, 1963 keeps the
limitation in abeyance if the person is a minor, insane or an idiot. In so
far as the other order of maintenance under Chapter IX of Criminal
Procedure Code is concerned, once a minor attains majority and if the
said person after attaining of majority is not suffering from any mental
or physical handicap, the maintenance order passed in his favour
automatically disappears. Even then for arrears accrued by the time of
his attaining the majority, petition can be filed within one year of the
attaining of said majority. But, so long as the said minor does not attain
the majority for the enforcement of the order of maintenance, there can
be no fetter of limitation prescribed under the 1 st proviso to Sub-section
1 Loolnchand vs. Hemkanta, I (1986) DMC 431 MP: Bimla Dei vs.
Karna Mulia, II (1985) DMC 327 Orissa.
2 Hagiri Dei vs. Budhiram Behera, I (1982) DMC 332 Orissa: II
(1982) DMC 193.
3 Hagiri Dei vs. Budhiram Behera, ibid.
Summery remedy—Living separately by mutual consent 369
3 of Section 125 Criminal Procedure Code and the said provision has to
be read down that the said limitation is only applicable to major-
maintenance holders and not minor-maintenance holders. 1
Living in adultery
In M. Kanniappan vs. Akhilanadammal 2 it was observed that a
husband is absolved from obligation to maintain a wife living in adultery
on the principle that when the wife has a ‘de facto’ protectorate then the
obligation of the husband to maintain the wife ceases when it has been
voluntarily assumed by some man other than the woman’s husband. This
would be the position when the wife starts living with the one with
whom she committed adultery and is being maintained as if she were his
wife. As the obligation has been fastened on the husband to maintain a
wife due to the anxiety of the Legislature to protect a deserted wife from
the bitter necessity of earning a living by trading on their sex, that
obligation would no longer exist if the same has been voluntarily
assumed by some other man. 3
the passing of the consent decree for judicial separation, the parties have
been living separately by mutual consent the wife is not entitled to
receive any maintenance under Section 488 Criminal Procedure Code
(present Section 125) she may pursue such remedies as may be available
under Hindu Marriage Act. 1
Major-child
The Parliament in its wisdom has enabled only a minor child
whether legitimate or illegitimate to claim maintenance under Section
125(1)(b) and only one exception has been made by enacting Sub-section
(c) which enables the child which has attained majority to claim
maintenance. That is a case where the child by reason of any physical or
mental abnormality or injury is unable to maintain itself. 3
When it was not the case of any of the claimants that they have
any physical or mental abnormality or injury on that account they are
unable to maintain themselves, it was held that the case of claimants do
not come under either Sub-clause (b) or (c) of Section 125(1) and the
case of the 3 rd claimant subsequent to becoming major does not come
under any of these Sub-section. 4
Modification of order
Section 127 Cr.P.C. which is for alteration in the amount is
completely different and for this Section 126 Cr.P.C. has no application.
Section 127(1) Cr.P.C. provides that upon a proof of change in the
circumstances of any person, receiving under Section 125 a monthly
allowance, or ordered under the same section to pay a monthly allowance
to his wife, child, father or mother, as the case may be, the Magistrate
may make such alteration in the allowance in the allowance as he thinks
fit. The words “the Magistrate” would mean the Magistrate who had
passed the first order of maintenance, because this interpretation is
strengthened by the fact that Section 128 Cr.P.C. which is the section for
Clause (a) if the Magistrate is satisfied that the woman has remarried
after the divorce, the Magistrate has to cancel the order from the date of
her remarriage. Clause (b) provides for cancellation of order from the
dates specified in Sub-clauses (i) and (iii) where the divorced woman has
received either before or after the date of order the whole of the sum
which, under any customary or personal law applicable to the parties,
was payable on such divorce. 1
It is not possible for the High Court to investigate whether the
particular amount has or has not been received by the divorced wife or
whether that was the sum which was to her payable under the personal
law applicable to the parties. It is open to the former husband to
approach the Magistrate for an order in terms of Section 127(3)(b)(ii).
Clauses (c) provides for the cancellation of the order where the woman
has voluntarily surrendered her rights to maintenance after her divorce. 2
Modification in revision
It there was any change in the circumstances of the applicant after
the passing of the order for maintenance the non-applicant has a right to
submit an application under Section 127, Cr.P.C. to the Magistrate for
the alteration in the allowance payable to the applicant. The Magistrate
on proof of the changed circumstances is empowered to make such
alteration in the allowance as he thinks fit under Section 127 of the
Cr.P.C. In the absence of material before the Revisional Court it was
held not justified in modifying the order passed by the trial Magistrate. 3
Multiple applications
A reading of the procedure contemplated under Section 125 of
Criminal Procedure Code does not prohibit a party from filing any
number of maintenance petition seeking maintenance so long as the
granting of amount does not exceed Rs. 500/- in favour of each of the
petitioners. Code of Criminal Procedure, 1973 provides for filling of an
application under Section 127 seeking alteration/modification of the
order to realise some more amount for her livelihood she is entitled to
file a case against the daughter. 1
Multiple orders
The order passed by the learned Magistrate with regard to
maintenance under Section 125, Criminal Procedure Code shall be kept
in abeyance so long the wife gets alimony pendente lite under Section 24
of the Hindu Marriage Act. The order made under Section 125, Criminal
Procedure Code will become operative as soon as the order under Section
24 ceases to exist. 2
Non compliance
Non-compliance of order to pay interim maintenance is not a
situation envisaged to pass ex parte order. Specific provision for ex parte
order having been made by Parliament, there is no scope for Courts to
read into the provision something which is not consistent with the
language of the said provision. Power to set a party ex-parte is not
ancillary to exercise main power. Civil Courts might have jurisdiction in
just cases to impose restriction on defaulting husband from contesting in
exercise of inherent power. Such power has not been vested in criminal
courts since inherent power is vested with High Courts only under
Section 482 Criminal Procedure Code. Same principle is not possible to
be applied to proceedings before Criminal Courts. Drastic power to take
away the right to defend ought not to be invoked unless language of the
statute does not envisage the same. 2
Nullity Marriage
The wife as defined under Section 125 of the Code of Criminal
Procedure continues to be wife and eligible for maintenance under
Section 125 notwithstanding divorce. Dissolution of marriage as a sequel
to divorce should not be equated to decree of nullity. Section 13 of the
Hindu Marriage Act, 1955 is concerned with dissolution of marriage by a
decree of divorce on the grounds enumerated therein. Section 15 permits
either party to remarry again in the event of there being no right of
appeal against decree, or time for appeal expired without any appeal
having been presented, or appeal which has been presented has been
dismissed. The proviso to Section 15 prohibits performance of marriage
within one year from the date of decree for dissolution of marriage or
divorce in the court of the first instance. Therefore the distinction
between dissolution of marriage on divorce and nullity of marriage is
clearly discernible. In the event of dissolution of marriage on divorce the
remarriage by either party is intertwined by certain strings and
conditions and the mere decree for divorce does not result in fanning the
wings and getting away from the tie unless the conditions stipulated in
Section 15 are fulfilled. In the event of a decree for nullity, the
association of marriage is irrevocably terminated with immediate effect.
The explanation under Section 125 of the Code relating to ‘wife’ is
contravenes any one of the conditions specified in Clauses (1) (iv) and
(v) of section 5 of the Act. A void marriage does not create any right and
obligation which normally arise from a valid marriage. 1
Under Section 125 of the Criminal Procedure Code wife or
divorced wife is entitled to claim maintenance. when the marriage
between the petitioner and the respondent is null and void as it has
contravened section 5(1) of the Hindu Marriage Act petitioner is not
entitled to claim maintenance from the respondent. 2
Karewa marriage is a nullity in the eyes of law and thus wife is
not entitled to interim maintenance under Section 125 of the Code. 3
Offer of re-union
An offer by the husband to keep the wife may be made before the
application is filed. It may be made after the application is filed and
before the order is passed. It may be made after the order is passed and
during the enforcement of the order. It may be a conditional offer or it
may be an unconditional offer. It may be bone fide or it may not be a
bone fide offer. The offer can also be made after the order is passed, and
such a contingency is contemplated in sub-s. (3) of Section 48 Criminal
Procedure Code. For the purpose of sub-s. (4) of Section 488, Criminal
Procedure Code it is not sufficient that there is a conditional offer, the
condition being that the wife should behave well. If the husband tells
wife that he is willing to take her if she behaves well, the wife as well
can reply that she is willing to live with the husband if he behaves well.
It is very difficult to see whether the condition has been fulfilled or not
fulfilled. A conditional offer would not invite an application of sub-s. (4)
of Section 488, Criminal Procedure Code. 4
Where the petitioner had during the proceedings, made a false
accusation of adultery, the offer to take the wife back was not a genuine
one and it was a device to evade the payment of maintenance and further
that the aforesaid fact constituted a sufficient cause for the wife to live
separately from her husband and a false accusation of adultery was a just
ground for a wife declining to stay with her husband. 5
Paternity of child
The object of Section 125 of the Code is to provide a summary
remedy to save dependants from destitution and vagrancy and this is to
serve a social purpose, apart from and independent of the obligations of
the parties under their personal law. The right of the child legitimate or
illegitimate under the Code is an individual right of the child in his or on
her own right, independent of the mother. When a woman claims
maintenance on behalf of a minor child out of wedlock against his
alleged putative father, the onus is on her to show that the child could
1 Chander Parkash Bodh Raj vs. Shila Rani Chander Prakash, AIR
1968 Del 174
2 Ravinder Nath Sharma vs. Nirmal Sharma, I (1985) DMC 446
Delhi.
3 Banshi Das vs. Jitni Debi, II (1983) DMC 198 Patna.
Summery remedy—Payment of cost 379
only have been born through the alleged father under the circumstances
of an exclusive relationship.
In such a case the woman being a highly interested person, the
Court has a duty to see that her statement gets some independent
corroboration, direct or circumstantial that the claimant could have
conceived the child when she and the alleged father had access to
each other. 1
Ratnavel Pandian J. has observed: 2
“To decide the paternity of the child it is prima facie improper to
accept the mere statement of the mother, upon whom lies the
burden to establish the paternity of the child. It is true that
corroborative evidence is not usually forthcoming and therefore
the Magistrate has to rely upon other corroborating circumstances
if they are available. But at the same time it is not correct to say
that unless the child is admitted by the putative father to be his
illegitimate child, the Magistrate has no power to make an order
for payment of maintenance. The basis of an application the
maintenance of a child is the paternity of the child irrespective of
its legitimacy or illegitimacy. Therefore, it is the duty of the
Court, before making the order, to find definitely though in a
summary manner, the paternity of the child…………
The burden of proof is not upon the father of the child in such
cases. It is for the mother claiming maintenance to show that the
child was born to the alleged father and the circumstances of the
exclusive relationship.”
In another case Anant Narayanan, J. 3 has also held as under:
“No presumption of paternity can arise in a proceeding under
Section 488, Cr.P.C. with regard to children born out of wedlock
merely upon the entries found in certain birth registrar extracts
where there is no evidence to show that the alleged father was the
informant or that he gave some information constituting
admission of paternity.”
In one case, the child was born while the relationship of husband
and wife between the petitioner and the first respondent subsisted. It was
held that the presumption is that the child was born to the petitioner
unless the contrary is established. 4
Payment of cost
The words used in the proviso to Section 126(2), Criminal
Procedure Code require the party on whom costs has been imposed by
the order setting it aside to pay the same in cash if he wants to
participate in the proceeding by contesting the application for
maintenance made against him. The proviso for setting aside the ex parte
decree to impose costs, which obviously has the purpose of
compensating the party in whose favour the ex parte order had been
made. Payment of costs under the proviso is, in fact, a condition
precedent for availing the order setting aside the ex parte judgment given
under Section 125, Criminal Procedure Code. The power to impose costs
on the court has been given to a court for making payment of
compensation. In this case an interpretation was canvassed that the
amount could be realized only as fine is not acceptable on account of the
language of the proviso not permitting the same. The language apart, the
intention also of the legislature could not be that a party remaining
absent may get ex parte order set aside and thereafter harass the
applicant who has applied for maintenance under Section 125. By
executing order of costs as provided by Section 421, Criminal Procedure
Code the intention is that if costs are paid the proceedings under Section
125, Criminal Procedure Code could be gone into and the rights of the
parties could be decided on merits. The proviso is that on payment of
costs written statement could be filed. The purpose of the legislature can
be achieved only if interpretation is that costs is to be paid in cash. It
was therefore held that there was no substance in the submission that
costs could be realized by resorting to the method of execution of an
order under Section 125, Criminal Procedure Code or by availing Section
421 of the Code of Criminal Procedure. 1
more direct language. It was held that the sum referred to by Section
127(3)(b) need not be restricted to maintenance in the well understood
sense of the term, but may cover any sum or amount payable on divorce
under the customary or personal law of the parties. Therefore Section
127(3)(b) was held to be attracted. 1
Pecuniary jurisdiction
Although what the section 125 of Criminal Procedure Code, 1973
plainly means is that the Court cannot grant more than Rs. 500/-for each
one of the claimants. “In the whole” in the context means taking all the
items of maintenance together, not all the members of the family
put together. 2
If a woman has a dozen children and if the man neglects the
whole lot and, in his addiction to a fresh mistress, neglects even his
parents and all these members of the family seek maintenance in one
petition against the delinquent respondent, can it be that the Court cannot
award more than Rs. 500/- for all of them together? On the other hand if
each filed a separate petition there would be a maximum of Rs. 500/-
each awarded by the Court. Therefore, this obvious jurisdictional
inequity was refused to be read in the provision by reading a limitation
of Rs. 500/- although what the section plainly means is that the Court
cannot grant more than Rs. 500/- for each of the claimants. ‘In the
whole’ in the context means taking all the items of maintenance together,
not all the members of the family put together. This interpretation
accords with social justice and semantics and, more than all, is obvious. 3
Pleading
The law of civil pleading should not be rigidly and blindly
applied to a case under Section 125 Cr.P.C. if there is no specific
pleading regarding inability to maintain, the same can be gathered from
the evidence and circumstances of the case. 4
In Santosh Kumari vs. Jaswant Rai, 1 that the absence of the plea
that wife was unable to maintain herself will not be fatal to the grant of
the relief under Section 125 of the Code of Criminal Procedure. It has
then been held in Smt. Munni Devi vs. Sri Om Pal, 2 that a wife’s claim in
her application for maintenance a under Section 125(1)(a) of the Code of
Criminal Procedure on the ground that she was unable to maintain
herself could not be refused on the ground that she did not lead evidence
in proof of the fact that she was unable to maintain herself where she had
raised a plea to that effect in her application which was not controverted
at any stage by her husband. 3
In one case, in the written objection the petitioner had not stated
that she has means to support herself and her daughter and did not even
make any such allegations in his evidence nor was it suggested to the
opposite party when she was examined as witness that she has means to
support herself and her child. In the situation even though the learned
Magistrate has not recorded a finding on this point still it does not
appear that it has causes any failure of justice and therefore there need
not be any revisional interference by this Court. 4
Rule of pleadings had not to be strictly enforced in an application
under Section 125 of the Code Criminal Procedure. It was the contention
of the non-applicant that the applicant is not entitled to maintenance
because of the decree passed against her. It is not his case that he has
been providing any maintenance to her after passing of the decree. He
disowns his liability to maintain her. In it was held that in the
circumstances, it will be assumed that there is not only neglect but
refusal to maintain the applicant. 5
In an application for maintenance under Section 125 of the
Cr.P.C. it was not pleaded to the effect that the earlier marriage of the
petitioner was not a valid marriage. It was held that omission at the most
would make pleadings loose. Looseness in her pleading would not come
in her way in claiming maintenance. If it did not come in her way in
Pleading of neglect
The order of maintenance under Section 125 Code of Criminal
Procedure is a temporary one and the proceeding being a summary one
the order is granted to provide only an emergent relief to person in need.
The permanent rights of the parties have to be decided by the appropriate
Court, especially after the advent of the Hindu Adoptions & Maintenance
Act and more recently the Family Court Act, 1984. A person coming
before the Magistrate for an order of maintenance should plead that she
is neglected and that the party bound to maintain refuses to do so. There
has been such an allegation by the wife/petitioner before the Magistrate.
The husband in such a case can resist the petition for maintenance in
offering to maintain his wife on condition of her living with him. When
such an offer is made, it is still open to the wife to refuse it in which
case she will have to substantiate her ground of refusal. 3
Presumption of paternity
In one case, after the marriage the opposite party lived together
with the petitioner at his house. It was observed that, had the opposite
party became pregnant before it may that would not escape the notice of
the present petitioner and in that case he certainly would have behaved in
other way towards the opposite party long before the Child’s birth. In
this case, however, it was not disputed that the present petitioner nor any
member of his family never misbehaved with the opposite party till after
the birth of the child. In that view of the matter from the very behaviour
of the petitioner himself it was held that there is no merit in the
petitioner’s denial of paternity of the child in question. 1
Procedure of proceedings
Section 126 of the Code prescribes the procedure which is to be
followed. In particular, Sub-sec. (2) of Section 126 says that all evidence
in such proceedings shall be taken in the presence of the person against
whom an order for payment of maintenance is proposed to be made. It is,
however, further provided that if the Magistrate is satisfied that the
person against whom an order for maintenance is proposed to be made is
wilfully avoiding service or wilfully neglecting to attend the Court, the
Magistrate may proceed to hear and determine the case ex parte.
However, this does not mean that the Magistrate shall pass an order
without recording evidence as required in the main part of Sub-sec. (2)
of Section 126. The proviso only dispenses with the necessity of
recording evidence in the presence of the other side if that other side is
wilfully avoiding service or wilfully neglecting to attend the Court.
Section 126 (9) itself provides that all the evidence shall be recorded in
the manner prescribed for summons cases. 2
1 Asraf Ali Molla vs. Mst. Manowara Khatoon Bibi, II (1986) DMC 99
Calcutta.
2 Ramesh Laxman Contractor vs. Jayshreeben Ramesh Contractor,
II (1982) DMC 344 Bombay.
Summery remedy—Proceedings under old Code 385
brought about in the new Code i.e. Section 125 ibid broadening the
spectrum of “wife” so as to ensure the benefit of maintenance, also to a
divorced woman; but this new benefit could be availed of only by the
claimants, initiating proceedings under the new Code, and not by those
who might have started the proceedings under the provisions of the old
Code and continued them as such, even after the repeal of the said Code
by the new Code, which does not contain any provision to extend the
benefit of the provisions of the new Code, more particularly of Section
125 bid to the proceedings instituted under the provisions of the old
Code, now repealed. It was therefore held that non-applicant wife’s
prayer to treat the proceedings under Section 488 of the old Code as the
proceedings under Section 125 of the new Code is just on humanitarian
grounds with no legal sanction behind it; and as such, cannot
be accepted. 1
The proceeding under Section 125 of the Code may be not strictly
proceedings where a party is termed as an accused or a complainant, yet
the same have to be tried in accordance with the procedure prescribed for
summons cases. 2
Delhi High Court has held 3 that proceedings under Section 488 of
the Old Code of Criminal Procedure, which was similar to the Section
125 of the New Code, are criminal in nature and still the proceedings are
to be tried as summons case although provisions of Section 242 of the
Old Code, which are similar to provision of Section 313 of the Code, are
not applicable. The procedure prescribed for summons case is
incorporated in Section 251 to 259 of the Code and Section 256 lays
down that if the summons has been issued on complaint, and on the day
appointed for the appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall, notwithstanding anything hereinbefore
contained, acquit the accused, unless for some reasons he thinks it proper
to adjourn the hearing of the case to some other day. Proviso to this
Section lays down that where the complaint is represented by a pleader
or by the officer conducting the prosecution or where the Magistrate is of
opinion that the personal attendance of the complainant is not necessary,
the Magistrate may dispense with his attendance and proceed with the
case. The petitioner in this case is represented by a counsel before the
trial Court. Thus, the Magistrate could dispense with the attendance of
1 Mohd. Jalil Khan vs. Anwari Begum, I (1982) DMC 338 MP.
2 Usha Kumari vs. Parmanand @ Preme Swami, II (1990) DMC 360
Delhi.
3 Harbhajan Kaur vs. Major Sant Singh, AIR 1969, Delhi 298
386 Law of Maintenance
the complainant during the hearing of the petitioner under Section 125,
Code but it does not dispense with the discretion of the Magistrate to
insist upon the presence of the complainant on any date of hearing if the
interests of justice so require. So, as a matter of fact, by passing the
impugned order the Magistrate is enforcing the main Section 256(1) and
is revoking the permission envisaged in proviso to Section 256(1). There
is no illegality or impropriety committed by the Magistrate in passing the
impugned order for seeing that the petitioner appears on a date fixed
when the evidence from the office, where she is alleged to be employed,
is to be recorded in order to see that the identity of the petitioner is
fixed. Rather it is one of the points to be seen in the proceeding under
Section 125 of the Code, whether the petitioner is a destitute and is not
earning anything and in case the petitioner was not employed anywhere
as alleged by the opposite party, the petitioner ought to have filed on
affidavit in contesting the affidavit filed by the other side. 1
Proof of marriage
In our practical life, that even if the daughters are married, for
long time they are described as daughter of so and so in the official
record. For one reason or the other, such record are not changed and
entries are often times made in such record identifying girls as daughters
of their fathers instead of wives of their husbands. And what is wrong if
a particular woman is described as a daughter of so and so instead of
wife of so and so, although in our society, normally, the woman are
described by the names of their husbands. But, just because in the
electoral roll, the wife was described as the daughter of her father, it was
held that it does not mean that she was not the wife of Respondent. 2
Proof of neglect
In Bai Tahira vs. Ali Hussain Fissally Chothia 3 it has been
observed therein that—
“Section 125 requires, as sine qua non for its application, neglect
by husband or father. Where in a petition by a divorced wife
under Section 125, the husband did not examine himself to prove
that he was giving allowances to the divorced wife, his case, on
the contrary, was that she had forfeited her claim because of
divorce and the earlier consent decree held that the husband had
no case of non-neglected and hence, the basis condition of
neglect to maintain was satisfied.” 1
A divorced wife is under no obligation to live under the roof the
husband. Equally, the husband cannot forestall the claim of maintenance
by making a suggestion that he has willing to keep her. The nuptial tie
has been dissolved once for all. It is the new status of the wife as a
divorced wife which gives her the right of maintenance. No specific
words of neglect or refusal need in such a case be pleaded on proved. 2
Reconciliation
Unlike the procedure prescribed under the Hindu Marriage Act,
Section 125 and 126 Criminal Procedure Code do not prescribe that the
Court should make any effort for reconciliation by talking to the parties.
In any case, the Revisional Court ought to have recorded a note in detail
duly signed by both the parties as to what had transpired in the
chambers, if at all this procedure had not been objected by the parties
and it could be only thereafter that he could have treated it as evidence in
setting aside the order of the Magistrate on that point. 3
Reconsideration
Once an order for maintenance is passed in favour of an minor on
change of circumstances that order can annulled or altered only under
Section 127 Cr.P.C. when an application under Section 127 Cr.P.C. is
made for altering or annulling an order, Magistrate can make elaborate
inquiry and then only an appropriate order for annulment or alteration
can be passed. 4
Recording of evidence
An application for maintenance is not a complaint within the
meaning of section 4(h), Criminal Procedure Code, and, therefore, the
husband is not in the position of an accused. It was found that there was
nothing on the record to show that the husband was forced to adduce any
evidence, even though the wife had not examined herself or any of the
witnesses. Thus it was held that the evidence of the husband and his
witnesses formed a part of the evidence in the case and therefore the
Refusal co habit
At the stage when the Magistrate is considering whether an order
under sub-section (1) should be passed or not, it is not relevant to
consider whether there is just ground for the wife to refuse to live with
him. What the Magistrate has to consider at this stage is whether the
husband, though possessed of sufficient means, has neglected or refused
to maintain his wife, and not whether the wife has just ground for
refusing to live with the husband, because, there may be cases where the
husband does not neglect or refuse to maintain his wife even though she
may have just ground for refusing to live with him. To put it shortly, the
jurisdiction of the criminal court to make an order of maintenance
against a person having sufficient means arises only upon proof of
neglected on his part to maintain his wife. In the absence of such proof it
is not open to the Magistrate to make any order of maintenance. 2
Merely because wife and children left the home of
husband/father, of their own accord, is no ground to refuse maintenance. 3
Res judicata
One of essentials for the applicability of the general principles or
res judicata is that the matter had been heard and finally decided in the
earlier case. The matter should be one upon which the court had
exercised its judicial mind and had come to a conclusion. The decision
must have been on merit on the question in issue. In other words there
must exist a final adjudication on the merits before the principle of res
judicata can be involved. In this case the earlier petition filed by the wife
was dismissed as withdrawn. Therefore, it was held that it was not a
decision on merit and for that reason also the subsequent petition was
not barred. 1
There is no provision in the Code which bars a second application
under Section 488 Cr.P.C. But when an application under this section has
been heard and adjudicated upon, it is against the general principle of the
rule of ‘res judicata’ that a subsequent application on the same facts
should be entertained. Subject to this principle, a prior application is no
bar to a subsequent application if that application was dismissed for
default and there was no adjudication on the merits. On the perusal of the
records, it was found that the previous case was dismissed in default and
there was no adjudication on the merits, therefore it was held that there
was no bar against the second application. 2
In another case it was observed as under:
‘The matter can be viewed from either angle. It can be viewed
that there was a genuine effort by wife to rehabilitate herself in
her matrimonial home but in vain. The previous orders of
maintenance in a manner of speaking could at best be taken to
have been suspended but not wiped out altogether. The other view
can be that the maintenance order stood exhausted and thus she
be left to fight a new litigation on a fresh cause of action. Out of
the two courses, we would prefer to adopt the first one, for if we
were to resort to the second option, it would lead to injustice.’ 3
It will thus seen that the second application by the wife is not
barred. In any case either the earlier order of maintenance stood revived
and could also be modified by the Magistrate to suit the present needs of
the wife and the child. In alternative, the wife could renew her prayer on
fresh cause of action and make fresh application for maintenance. 4
need file only a petition on getting knowledge of the order. He can only
do so. Normally that provision may be intended to be applicable only in
cases coming within the proviso. Otherwise the provision to file an
application to set aside the ex parte order and too within three months of
the order cannot have any meaning. “Good cause” mentioned in the
proviso must have some nexus with the wilful avoidance of service or
wilful neglect to attend the court. There is no question of a person to
whom no notice was taken or who did not avoid the notice and did not
refuse to appear before court showing “good cause” within three months.
At any rate three months provided from the date of the order cannot be
applied in such case. The provision for filing a restoration application
may be intended only in cases of persons coming within the first part of
the proviso, because compliance of that part of the proviso is an essential
ingredient for empowering the Magistrate to proceed ex parte. When a
Magistrate proceeds ex parte, without satisfaction of either of those
conditions, the ex parte order itself become illegal. In such cases, it
cannot be held that the person against whom the ex parte order is passed
is bound to appear before the Magistrate and file an application for
restoration as a condition precedent to approaching higher authorities in
revision. It was held that, the illegal order could be challenged by person
against whom the order was made by filing a revision before the Session
Judge, who is competent to entertain the revision. If he chooses, he is
also entitled to file an application for restoration before the
Magistrate himself. 1
Revision
While exercising Revisional powers, the court is not expected to
act as if it is hearing an appeal and to reappreciate the evidence. 3
The questions whether the one claimant was the married wife of
the respondent and whether the other claimant was the legitimate or
illegitimate child of the respondent, are pre-eminently questions of fact.
When the Magistrate after considering the evidence, as adduced by the
parties, held that the applicant was not the wife of the respondent and
further held on the basis of the evidence on record that the other
applicant was the illegitimate child of the respondent. After considering
the evidence on record it was held that the learned Judge of the High
Court committed an error in making a re-assessment of the evidence and
coming to a finding that the second applicant was not the illegitimate
child of the respondent. The High Court in its revisional jurisdiction was
not justified in substituting its own view for that of the learned
Magistrate on a question of fact. 1
Right of children
The key to this provision is furnished in the case of the child by
the words “unable to maintain itself”. In different communities and
different circumstances these words may mean different thing. Among
the labouring classes it may even be possible to hold that a healthy boy
aged 16 is not unable to maintain himself. On the other hand, regard
being had to the circumstances of the family of the petitioner it cannot be
said that a girl aged 19 studying in the Intermediate classes is able to
maintain herself. The Legislature purposely omitted reference to any
particular age. The emphasis is on the words “unable to maintain itself”.
It is a question to be decided on the evidence of each case whether a
particular child is or is not able to maintain itself. For that, regard must
be had to the particular circumstances obtaining in each family and
its status. 2
The liability of the petitioner under Section 125 of the Code of
Criminal Procedure to maintain his son is not diminished in any manner
because he is living with mother who is also an earning hand. Even if it
may be accepted that under the Hindu Law a mother is liable to maintain
a child but this principle cannot be applied to the proceedings under
Section 125 of Code of Criminal Procedure. Taking into consideration
the income of the petitioner, it could not be held that he has no means to
maintain his minor son. 3
Scheme
Section 125 Criminal Procedure Code contemplates that if any
person having sufficient means neglects or refuses to maintain his wife
who is unable to maintain herself then the magistrate may make an order
directing such person to make a monthly allowance for the maintenance
of his wife at a rate not exceeding Rs. 500/- in whole. Sub-clause (4) of
Section 125 Criminal Procedure Code provides that no wife could get an
allowance from her husband under Section 125 Criminal Procedure Code
if she was living in adultery or if without any specific reason she had
refused to live with her husband or if they had started living separately
by mutual consent. 2
The provision for some amount of maintenance under Section 125
Criminal Procedure Code has apparently been made looking at the
peculiar circumstances under which neglected women, minor children
and poor parents have been living in the society since long. This relief
can be claimed by the aggrieved person under Section 125 Criminal
Procedure Code at the place of their own residence. Consequently to
deny the said remedy to a neglected and hard pressed wife merely on the
ground that she could claim it in a suit which she could defend and
which may sometimes be pending at a place different from her place of
residence, would almost render the facility and benefit which has been
provided to her under Section 125 Criminal Procedure Code nugatory.
Consequently it was held that a proceeding under the provisions of
Hindu Marriage Act can not operate as a bar to a proceeding of
maintenance under Section 125 Criminal Procedure Code. 1
In another case, on behalf of the husband two facts were brought
to notice of the Court, namely, (1) that in divorce petition the wife had
been awarded interim maintenance of Rs. 450/- per month; (2) that the
children had attained majority and each of them was above 18 years of
age. It was held that both these facts are not relevant to an application
for setting aside of ex parte order of maintenance which has to be
decided only on the basis of presence or absence of good cause. Facts
touching the grounds on which maintenance can be awarded are not
relevant to an application for setting aside of ex parte order. Any order
of the civil Court regarding maintenance overrides the order of
maintenance under Section 125 Criminal Procedure Code. If there is
already an interim order for maintenance the Civil Court the maintenance
paid thereunder has to be taken into account in proceedings under
Section 125 Criminal Procedure Code also. 2
In this case there was a maintenance order. There was an existing
maintenance order under Section 125 Criminal Procedure Code it was
only in realisation proceedings that any payment made under the order of
civil Court for interim maintenance has to be taken into account. It was
held that so far as the question of majority of the children is concerned
that can be a ground for cancellation of maintenance order passed in
their favour. If the husband so chooses he can file an application under
Section 127 Criminal Procedure Code for cancellation of the
maintenance order in favour of the children on the ground that they have
attained majority. In cancellation proceedings the Magistrate can even
pass order of cancellation with retrospective effect the date each of the
child attained majority. 3
1 Rajendra Prasad Gupta vs. State of U.P., II (1991) DMC 113 All.
2 Raja Ram vs. Jain Mala Jain, II (1991) DMC 252 All.
3 Raja Ram vs. Jain Mala Jain, ibid.
Summery remedy—Scheme 397
and lived as husband and wife the Magistrate can apply factum valet and
raise a presumption of a valid marriage. 1 The question whether a decree
or an order of civil court would bear an order under Section 125 of the
Code would, therefore, depend upon the facts and circumstances of
each case.
Nataranjan J. in Linga Gounder v. Raman, 2 held that Section 125
does not lay down either that the existence of a decree for maintenance
passed by a civil court will bar the jurisdiction of a Magistrate to
entertain a petition for maintenance or that if there had been an earlier
decree by a civil court, a Magistrate must confine his award only to the
quantum fixed by the civil court. 3
Section 125(1) of the Code prescribes that Magistrate can order a
person to make a monthly allowance for the maintenance of his wife or
child, if such person having sufficient means neglects or refuses to
maintain his wife who is unable to maintain herself. The power to grant
maintenance is conferred on a Magistrate provided two basic
requirements are established. The first requirements is that the wife is
unable to maintain herself and the second is that her husband has
sufficient means but neglects or refuses to maintain the wife. The
Explanation to Sub-section (3) merely provides the guideline to the
Court and prescribes that when husband contracts second marriage, then
the wife is entitled to live separately from her husband. The Explanation
by, itself does not enable the wife to claim maintenance under Sub-
section (1). A wife may be entitled to live separately from her husband
because the husband has contracted second marriage but that fact by
itself is not enough for a Magistrate to award maintenance. The wife has
to establish that she is living separately and she is unable to maintain
herself and her husband has neglected or refused to maintain her. Unless
these facts are established, the wife is not entitled to claim maintenance
merely because the husband has contracted second marriage and that fact
entitles her to live separately. 4
Scope of jurisdiction
In a proceeding under Section 125 of the Criminal Procedure
Code the Court does not determine the status of parties and it does not
1 Parvathy Amma vs. Gopal Gounder, 1956 MLJ 408 and Pachigolla
Srinivasarao vs. Pachugoola Samundram, 1975 Cr LJ 1581
2 1978 Cr LJ 469.
3 Referred and relied in Kuldeep Kumar vs. Chander Kanta, I (1984)
DMC 48 Delhi.
4 Mustafa Shamsuddin Shaikh vs. Shamshed Begum Mustafa
Shaikh, I (1991) DMC 34 Bom.
Summery remedy—Scope of jurisdiction 399
given any finding having the value of res judicate in respect of the
parentage or matrimonial status. The provisions of the Chapter XI of the
Code are meant to preserve peace and avoid strife in society by
providing immediate relief to parties who are neglected, and who
otherwise would resort to vagrancy, mendacity or other anti-social
activities. In a proceeding under Chapter IX, Criminal Procedure Code,
the role of the Magistrate is only to find out whether there is a prima
facie case in the claim of the person approaching the court for an
immediate relief. He has no time, no jurisdiction to embark upon an
elaborate enquiry. 1
The intendment of Section 125 Criminal Procedure Code is to
prevent vagrancy by compelling a person to support his wife or child or
father or mother unable to support itself. That being the object and
intendment, the above Section does not aim at determining legal rights.
The powers of the criminal Court under this Section are limited in scope
and the orders passed there under are subject to any final adjudication
that may be made by Civil Court between parties respecting their civil
rights and status. The proceedings therein are summary in nature and
cannot be equated to cases like regular civil suit for maintenance or a
regular criminal prosecution for bigamy. The order passed being
tentative are subject to final determination of rights of parties by Civil
Court and are also liable to be varied with change of circumstances.
When the said order are subjected to final decision in the civil suit and
are susceptible for removal by any decree passed in the civil proceeding,
the degree of proof in maintenance cases arising under Section 125
Criminal Procedure Code is less and it is sufficient to prove, that there
was a physical union between a man and a woman for a considerable
length of time and that a child is born through the said physical union
from which springs a presumption that the child is born to the
said person. 2
The provision under Section 125 are summary in nature, and
provides for swift and cheap remedy against a person who deprives his
wife or neglects or refuses to maintain her or his minor child, legitimate,
or illegitimate, unable to maintain itself. Section 125 prescribes a
summary procedure. The findings are not final and the parties are at
liberty to agitate their rights in a civil court. The summary procedure
does not cover entirely the same ground as the civil liability of the
husband or father or son under Personal Law to maintain his wife, child
or parent. When substantial issue of civil nature are raised, the remedy
Scope of revision
In revision evidence cannot be reassessed. But if in assessment of
evidence a legal mistake has been committed by the Trial Court, the
same can be corrected in revision. Cardinal principal is that in
matrimonial or maintenance cases solitary evidence of a spouses
attributing unchastity or adultery to the other party, should not be relied
upon because such spouse is extremely interested in the case. 2
voluntarily. The wife says that she was driven from the
matrimonial house. It is not necessary for us to go into this
controversy. Further circumstances show that there was a
litigation initiated by the husband for restitution of conjugal
rights. It shows that he had a very keen desire to have the wife
under his shelter so that the matrimonial obligations could be
discharged. At this time there was no second wife. The Civil
Court probed into the matter in details and on facts it came to the
conclusion that it was the wife who has deserted the husband and
that too for no justifiable cause. This finding has become final as
no appeal has preferred by the wife. In view of these findings, it
does not lie into the mouth of the wife no to say that she did nor
desert her husband and it was the husband who has driven her out
of the house. She has to accept the finding of the Civil Court as
far as the desertion is concerned. there is no choice left open to
her. From this point of view, it cannot be said that the husband
and under obligation, either statutory or otherwise, to maintain a
wife who has deserted him without any justifiable cause. The
husband is no doubt under obligation to maintain his wife and
child. The wife has to prove in these circumstances that the
husband has neglected and/or refused to maintain her. In view of
the findings recorded by the Civil Court, it is not open for the
Criminal Court to record a finding of ill-treatment which has been
negatived by the Civil Court. When the Civil Court has found as a
fact that wife has deserted the husband, there can no finding of
refusal or neglect to maintain.’ 1
The Supreme Court has also held that the second marriage being
null and void, the second wife is not entitled to maintenance. 2
Second revision
What cannot be done directly cannot also be one indirectly. To
circumvent a bar specifically imposed under the Code of Criminal
Procedure resort to the provisions of Article 227 of the Constitution of
India for moving a second Revisional application is deprecated and if the
provisions of Article 227 of the Constitution of India is allowed to be
invoked in by-passing a bar imposed by the statute in the absence of any
of the guidelines laid down by the Apex Court, the dream of the founding
fathers of our Constitution will be shattered. In this context the Supreme
Court observed 3 as under:
“Where the statute banned the exercise of revisional power by the
High Court, it would indeed require very exceptional
Service by post
In a case, where the person against whom claim for maintenance
is made is residing abroad, it is not practicable for the Court to ensure
that summons is served on him by a police officer or by an officer of the
Court issuing summons, or even by other public servants. It will not be
possible for the Court to cause service to be made under Section 64 on an
adult member of his family residing with him for, he would be residing
abroad; affixture under Section 64 also may not be possible since he may
not have residence within the jurisdiction of the Court or anywhere
within India. It may also be impracticable to cause service to be effected
under Section 67 through the Magistrate within whose local jurisdiction
the person concerned ordinarily resides. It was held that the Magistrate,
guided by the broad principles contained in Part A of Chapter VI will
have to devise ways for service or process. There is no legal difficulty,
in the light of these circumstances, in service being effected by
registered post or even through a public servant working in Indian
Embassy or Consulate in a Foreign country. 1
In essence and substance, what the Magistrate should issue is a
notice to the person against whom claim is made, informing him that
such a claim has been made and that it is open to him to appear in Court
and contest the claim. In serving the process, the broad principles
contained in Part A of Chapter VI of the Code have to be followed. Other
recognized ways of effecting service of notice such as by registered post
also could be followed. 2
Service in regard to proceedings under Chapter IX is not to be
effected strictly in terms of the provisions in Part A of Chapter VI of the
Code, though the broad principles of the latter chapter could be invoked
and service by registered post through an officer of the Indian Embassy
abroad would also be valid service. Where service is effected by
registered post or through an Indian Embassy abroad, that would be
sufficient service. Such service cannot be challenged on the ground that
service has not been attempted in terms of the provisions of Part A of
Chapter VI of the Code. 3
Service of process
For valid service entitling the Court to proceed ex parte, due
service i.e., service of notice along with a copy of the application may
not be held necessary. When the date of hearing is known, in the context
of section 125 of the Code, irregularity in service has to be held to be
inconsequential for the purpose of section 126(2). 4
Chapter VI of the Code is captioned “Processes to compel
appearance”. Under Section 126, Criminal Procedure Code, the
Magistrate is not required to compel appearance of the respondent. On
the contrary, if the Magistrate is satisfied that the respondent is wilfully
avoiding service or wilfully neglecting to attend the Court, he has to set
1 Balan Nair vs. Bhawani, 1987 Crl. LJ. 399 Ker (FB)
2 Parthasarathy vs. Banumathy, II (1988) DMC 473 Madras.
3 Parthasarathy ibid.
Summery remedy—Stay of order 407
receipt of summons if the defendant does not appear in court, the Civil
Court has to set him ex parte and proceed to hear the claim of the
plaintiff and grant relief, so too, under Chapter 9, Crl.P.C. a Criminal
Court is empowered to set the respondent ex parte and proceed to hear
the claim of the petitioner and grant relief. It can, therefore, be stated
that what is sent to the respondent could not strictly be described, as
“summons” within the meaning of the Criminal Procedure Code, thereby
attracting Section 65, Crl.P.C. The mode of giving him notice of the
proceedings need not be by taking out a summon to him in Form-I
described as “summons to an accused person issued under Section 62(1),
Crl.P.C. It was held therefore that in an application under Section 125,
Crl.P.C. causing notice to be served on the respondent, by registered post
with acknowledgment due is not illegal. 1
Stay of order
Under sub-section (2) of Section 127 of the Code of Criminal
Procedure, where it appears to the Magistrate that, in consequence of any
decision of a competent Civil Court, any order made under section 125
should be cancelled or varied, he shall cancel the order or, as the case
may be, vary the same accordingly. In the circumstances, it may still be
open to the respondent to move the Magistrate for making an order under
Section 127 (2) of the Code of Criminal Procedure but only after the
decision of a competent Civil Court. 3
When there is no such decision of a competent Civil Court so as
to warrant invoking Magistrate’s jurisdiction under-Section 127(2) of the
Code of Criminal Procedure, exercise of power is not called for. 4
Stay of proceedings
A maintenance proceeding under Section 125 of the Code of
Criminal Procedure cannot be stayed till conclusion of the Civil Suit
challenging the question of marriage. The petition under Section 125 of
the Code of Criminal Procedure is aimed at ameliorating of the plight of
the destitute and helpless women. A proceeding under Section 125 of the
Code of Criminal Procedure is really a summary order which does not
determine the rights of the parties as the Magistrate exercises his
jurisdiction under Chapter IX of the Code of Criminal Procedure which
is a remedial jurisdiction for preventing vagrancy, the decision of the
Magistrate under Section 125 of the Code of Criminal Procedure for
refusal of maintenance or for grant of maintenance cannot be decisive
factor in any civil proceeding between the parties. As such, the plea of
the husband that the question of marriage is under challenge before the
Civil Court cannot come to his aid for staying the maintenance
proceeding under Section 125 of the Code of Criminal Procedure till
decision of the Civil Court. 1
In one case the husband had filed a title suit for a declaration that
the opposite party is not his legally-married wife and he prayed that the
proceeding under Section 488 of the old Code should be stayed during
the pendency of the suit. The opposite party wanted maintenance in these
proceedings. It was held that the suit and, after it is concluded the
appeal, etc., are likely to take a long time. The opposite party cannot be
allowed to be completely without maintenance for all that time.
Therefore it was held these proceedings ought not to be stayed. On the
other hand, it was directed that the Magistrate should proceed to dispose
of the proceedings as quickly as possible. 2
Subsequent events
While deciding a case the courts can take into consideration
subsequent events. Therefore to avoid multiplicity of proceedings, it was
held as under:
‘The event of causing [this] aspersion took place after the
application was filed and before the case was decided. It is,
therefore, a subsequent event. There is nothing wrong in taking
notice of the same instead of forcing the party to file a fresh
application as this would result in multiplicity of proceedings and
unnecessary litigation.’ 3
Sufficient income
Where the wife in her examination admitted that she was working
as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it
was held that the object of Section 125, Criminal Procedure Code is to
prevent vagrancy, by compelling a person to support his wife or child, or
father or mother, unable to support itself. The maximum amount payable
under this Section is Rs. 500/- p.m. This amount is not intended for
leading a luxurious life. The powers of the Criminal Court under Chapter
IX are limited in scope and orders passed thereunder are subject to any
final adjudication that may be made by a Civil Court between the parties
respecting their civil rights and status. Since the wife was getting
Rs. 735/- p.m. which is sufficient to keep her from starvation. She was
held not entitled to claim maintenance from the husband. 1
Summoning of complainant
The proceeding under Section 125 of the Code may be not strictly
proceedings where a party is termed as an accused or a complainant, yet
the same have to be tried in accordance with the procedure prescribed for
summons cases.
In Harbhajan Kaur vs. Major Sant Singh, 2 it has been held court
that proceedings under Section 488 of the Old Code of Criminal
Procedure, which was similar to the Section 125 of the New Code, are
criminal in nature and still the proceedings are to be tried as summons
case although provisions of Section 242 of the Old Code, which are
similar to provision of Section 313 of the Code, are not applicable. 3
The procedure prescribed for summons case is incorporated in
Section 251 to 259 of the Code and Section 256 lays down that if the
summons has been issued on complaint, and on the day appointed for the
appearance of the accused, or any day subsequent thereto to which the
hearing may be adjourned, the complainant does not appear, the
Magistrate shall, notwithstanding anything hereinbefore contained,
acquit the accused, unless for some reasons he thinks it proper to adjourn
the hearing of the case to some other day. Proviso to this Section lays
down that where the complaint is represented by a pleader or by the
officer conducting the prosecution or where the Magistrate is of opinion
that the personal attendance of the complainant is not necessary, the
Magistrate may dispense with his attendance and proceed with the case.
The petitioner in this case was represented by a counsel before the trial
Court. Thus, it was held that the Magistrate could dispense with the
attendance of the complainant during the hearing of the petition under
Section 125, Code but it does not dispense with the discretion of the
Magistrate to insist upon the presence of the complainant on any date of
hearing if the interests of justice so require. Therefore by passing the
impugned order the Magistrate was held to be in enforcement of the main
Section 256(1) and was revoking the permission envisaged in proviso to
Section 256(1). There was no illegality or impropriety committed by the
Magistrate in passing the impugned order for seeing that the petitioner
appears on a date fixed when the evidence was to be recorded in order to
see that the identity of the petitioner is fixed. Rather it is one of the
points to be seen in the proceeding under Section 125 of the Code,
whether the petitioner is a destitute and is not earning anything and in
case the petitioner was not employed anywhere as alleged by the
opposite party, the petitioner ought to have filed on affidavit in
contesting the affidavit filed by the other side. 1
Temporary arrangement
An order passed under Section 125, Code of Criminal Procedure
is only a temporary arrangement and that it is open to the parties to
approach the matrimonial court in order to settle permanently their
respective rights. That Court would have full jurisdiction to modify this
order of maintenance after hearing fully the pleas of the parties and
recording their evidence relevant thereto. 2
Territorial Jurisdiction
It is not only the word “district” which one must have regard to,
but the entire expression “any district where he resides”. There appears
to be no reason why the express use of the word “district” by the
Legislature should be given any meaning difference from the normal
connotation of that word and there is no reason at all why in spite of the
use of the words “any district where he (the husband) resides”, it should
be limited only to a Court within that district within whose jurisdiction
the husband resides. 3
1 Shantabai ibid.
2 Shantabai ibid.
3 Ganga Sharan Varshney vs. Shakuntala Devi, I (1990) DMC 71 All.
412 Law of Maintenance
claimed ‘resides’, ‘is’ and where he last resided with his wife. In the new
Code of Parliament clearly intended that the helpless person should be
allowed to institute proceedings where he or she resides and, therefore,
in Clause (b) of Section 126(1) the Parliament introduced ‘where he or
his wife resides’. But in this clause the Parliament omitted mother or
father. Then the Parliament intended to give facility to helpless person to
claim maintenance at the place where he or she resides, omission of
month of father in the said clause is accidental or inadvertent. The
intention of the Parliament is clear that the helpless person should be
given facility of claiming maintenance at the place where he or
she resides. 1
Mention of the place of marriage in the pleading and evidence is
necessary only for the purpose of the jurisdiction of the Court in which a
proceeding can be initiated. For initiating a proceeding which Section
125, Criminal Procedure Code the place of marriage is quite irrelevant,
because according to Sub-section (1) of Section 126, Criminal Procedure
Code a proceeding under Section 125 may be taken against any person in
any district where he is or where he, or his wife resides, or where he last
resided with his wife, as the case may be, with the mother of the
illegitimate child. 2
Section 126(1) Criminal Procedure Code lays down the
jurisdiction of the Court where petition under Section 125 Criminal
Procedure Code can be moved. A bare reading of this section shows that
the application under Section 125 Criminal Procedure Code can be filed
by aggrieved person in any district where he or she the resides or where
he or she last resided together. After laying down this principle of law,
on facts of the case it was held as under:
‘Police Station Chakia as well as Police Station Ram Nagar
within the district of Varanasi. Her filling petition at Varansai
and filing the same at Chakia where she was earlier residing does
not make any difference. It is for the administrative convenience
that in a district powers have been conferred upon various
Judicial Magistrate in respect of various Police Station, but a
Magistrate is not debarred under the law for passing any order or
for entertaining any case of any other Police Station of the
district. It may be a violation of administrative instructions and
orders and not a violation of legal provisions and he violation of
administrative instructions does not make an order illegal. The
Chief Judicial Magistrate in the district can assign any case to
any of the Magistrate under his control in that district. Even in
this case the order has been passed by the Chief Judicial
Magistrate allowing retention of this case by the Additional Chief
Judicial Magistrate at Varansai and that order cannot be said to be
illegal. Even otherwise if a Magistrate having no territorial
jurisdiction entertains a case and passes an order that order does
not become illegal. It can be said the irregularity has been
committed by the Magistrate but it cannot be said he has
committed any illegality. The word ‘district’ has been specifically
used under Section 126(1) Criminal Procedure Code.’ 1
According to clause (1)(b) of Section 126 Cr.P.C. the proceedings
under Section 125 Cr.P.C. may be taken against any person in any
district where he or his wife resides. The Dictionary meaning of
“resides” is “to droll permanently or continuously; have a settled abode
for a time; have one’s residence or domicile”. “Reside” means something
more than a flying visit or a casual stay. There shall be an intention to
stay for a period, the length of which depending upon the circumstances
of each case. A person resides in a place if he makes it his abode
permanently or even temporarily. In order to find out whether the
petitioners actually resided or they had some intention to remain at a
place and nor merely to pay a casual visit, it should be considered
whether the period of stay was merely for a visit or for residence
although temporary. 2
Transfer of proceedings
Although Section 192(2) of the Code does not apply there is no
legal bar to transfer the case administratively to any other Magistrate to
the First Class competent to hear and decide the application under
Section 125 of the Code. 5
Void marriage
See under Nullity Marriage.
Voidable marriage
A wife whose marriage is in contravention of Section 5 and 11 of
Hindu Marriage Act cannot be treated as legally wedded wife who could
successfully claim maintenance from the alleged husband. 6
1 Bhanwari Bai @ Ramji Bai vs. Mohd. Ishaq, II (1983) DMC 76 Raj.
416 Law of Maintenance
Chapter 10
Enforcement of order
SYNOPSIS
Attachment and sale .......................416 Future default ................................ 434
Attachment of future salary ............417 Hearing of appeal .......................... 434
Attachment of property ..................417 Imprisonment of defaulting husband435
Attachment of provident fund & Inherent jurisdiction ...................... 438
gratuity ...........................................417 Instalments..................................... 438
Attachment of salary ......................418 Limitation ...................................... 439
Change in circumstance .................421 Moral duty ..................................... 441
Charge on property ........................422 Nature of right ............................... 441
Compromise decree .......................423 Notice before warrant ................... 442
Considerations ...............................423 Place of execution ......................... 442
Contempt proceedings ...................424 Procedure for recovery.................. 442
Death of husband ...........................424 Recovery and modification ............ 444
Default in payment .........................425 Remedies available ........................ 444
Defence ..........................................425 Stay of order/ proceedings............. 445
Effect of Act of 1986.......................426 Striking off defence ........................ 450
Effect of non payment on appeal ....427 Subsequent events .......................... 451
Effective date..................................428 Waiver ........................................... 451
Execution of order..........................433
fine. Future salary can be attached for the past arrears under Section
42(1)(a), Criminal Procedure Code. 1
Attachment of property
By virtue of Section 125(3) of the Code of Criminal Procedure
and an earlier judgment 3, warrant of arrest cannot be issued and the party
defaulting in payment cannot be sent to civil imprisonment as a matter of
first resort and that necessarily resort, prior in point of time, has to be
made to attach the property. However it was held that in peculiar facts of
this case, it cannot come to the rescue of petitioner. It was conceded that
petitioner had no property so that the same could be put to auction with a
view to provide maintenance to wife. There was persistent, default for
paying the maintenance allowance to wife in the present case and
therefore remand of the case directing the Magistrate in first resort to
proceedings of attachment was held to be an exercise in futility. 4
any judgment and order in her favour till the date of her application for
the restrain order. Her only case was that the ex-parte decree for a
divorce which was passed by the Family Court be recalled and the case
be restored to its original number. On consideration of matter it was held
that the Family Court took a drastic step and passed the impugned order
without caring to look to the provisions of Section 60 (g) C.P.C., Further
it was also clear that on the date when the impugned order was passed,
the application for restoration was pending and there was no such
proceedings pending before him in which such restrain order was
called for. 1
On one hand, the Family Court stopped the source of income
which was to be available to the applicant for payment for payment and
the other order directs for making a payment of interim maintenance to
the wife and son. The order was held to be patently illegal and
without jurisdiction. 2
Attachment of salary
Assuming that future salary can be attached for the recovery of
past arrears of maintenance under Section 125(3) Criminal Procedure
Code, it does not confer power to the Courts to attach the future salary
for the future maintenance. By ordering the attachment of the salary for
the future maintenance, it was held that the Magistrate exceeded his
jurisdiction and in fact, he exercised the jurisdiction not really vested
upon him under any of the provision of the Criminal Procedure Code. 3
If a person, from whom some amount is to be recovered towards
the fine imposed on him according to law, or if some amount is to be
recovered from him in the manner prescribed for the levy of fines, has no
tangible moveable property, nor any moveable property, but he has only
some assets of intangible moveable property, can it be said that the State
shall not be entitled to recover the amount of fine, or other amounts
which are leviable as fine, by proceedings against the aforesaid
intangible moveable assets? That is certainly not the purpose, object or
intendment of law. Again, if under the civil law, a creditor of such a
person is entitled to attach intangible moveable assets for satisfying his
private claim, can it be said that the creditor would be entitled to do so in
law, but not the State or, for the purpose of Chapter IX of the Code of
Criminal Procedure the neglected dependents of the said person? By all
Change in circumstance
It is true that Sub-section (4) and (5) of Section 125 of Criminal
Procedure Code, 1973 as also Section 127 provide a remedy for
alteration of the maintenance order passed by a Criminal Court.
However, the would not be distinguishing factor for the purpose of
holding that execution of a Civil Court’s decree can be resisted by
raising a contention that the parties have resumed cohabitation. Section
25 of the said Act provides for the alteration of the amount of
maintenance on proof of change of circumstances. It is needless to say
that such an alteration would also include total quashing of the
maintenance order if the circumstances are alleged and proved that such
a quashing is necessary. The provisions of Section 18 and 25 of the
Hindu Adoptions & Maintenance Act are practically similar to the
provisions of Section 125 and 127 of the Criminal Procedure Code. Thus,
on principle there cannot be any difference between an order by a
Criminal Court under Section 125 and a decree by a Civil Court. In view
of this position, the judgment-debtor can not successfully resist the
execution of the decree on the ground that the husband and wife have
resumed cohabitation after passing of the decree. 3
Charge on property
A charge will fasten on the property of a Hindu de hors the
provisions of the Hindu Adoptions & Maintenance Act. That is the effect
of Section 39 of the Transfer of Property Act. 2
Padmanabhan J. of the Madras High Court, elaborately discussed
this aspect with reference to the case law available till then. The Hindu
Law texts enjoin a mandatory duty upon the husband to maintain is wife.
That duty is not dependant upon the husband’s possession of any
property. A wife is treated under the ancient texts as a co-owner of her
husband’s property though in a secondary sense. It is not open to a
husband to effect an alienation of his properties, when such alienation
has the effect of depriving her and other dependents of their
maintenance. A wife is thus entitled to be maintained out of the profits
of her husband’s property. The wife and children can therefore have a
charge upon the properties of the husband and can enforce the same
against a gratuitous transferee. 3
Compromise decree
Where the parties have agreed to certain terms in the
compromise, which do not relate to the suit and accordingly a decree is
passed, the executing Court cannot refuse to execute the decree and such
a compromising decree has got to be executed relating to all the matters
for which there is a decree. 2
What has been agreed to is that for any reason, they could not
live together, the wife would be entitled to execute the decree,
irrespective of the question whose fault it is for separate living. It was
held that there was nothing which was opposed to public policy. The
parties wanted to put an end to further litigation and ultimately the
husband agreed that the wife would be entitled to maintenance if she
decides to live separately. 3
When a clause of the compromise decree, specifically enabled the
wife to execute the decree and claim maintenance from the husband but
the wife decided not to live with her husband it can not be held that the
wife had waived any of her right in the decree. Under a clause of the
compromise decree, she had specifically reserved her right to execute the
decree notwithstanding the fact that she decided to live with her
husband. When she has specifically reserved a right in her favour, there
is no waiver on the part of the wife nor there is any abandonment of the
decree on her side. 4
Considerations
Magistrate found on scrutiny of the facts that the opposite party
was not blame-worthy for the delay in accumulation of the maintenance.
She was hampered from recovering the arrears of maintenance by the
husband who repeatedly procured stay order from the higher courts
resulting in accumulation of arrears. He had no objection for the payment
of the accumulated amount of arrears of maintenance in two instalments.
Having considered all these points the Magistrate disposed of the matter
by a brief order which cannot be regarded as illegal. 1
Contempt proceedings
“Civil Contempt of Court” as defined in Section 2(b) of ‘the Act’
means “wilful disobedience to any judgment, decree, direction, order,
writ or other process of a Court or will breach of an undertaking given to
a Court”. In this case the order directing the respondent to pay litigation
expenses and maintenance pendente lite was not complied with. It was
observed as under:
‘Wilful means deliberately, intentionally, self willed. The
respondent is admittedly a Major in the Army. He is getting more
than Rs. 3000/- per month as salary. He has not paid a penny in
compliance of the order. He has not, even expressed his
willingness to pay the said amount in small instalments. In the
facts and circumstances of the case there cannot be any doubt that
the non-compliance of the said order was wilful.’ 2
In the contempt proceeding Court is not warranted to sit on
judgment as to the correctness, legality or validity of the order. The
Court, in contempt proceeding, cannot and will not enquire into the
merits of the order. The party who has been directed to do something by
an order of this Court cannot assail such order in the contempt
proceeding initiated against him for its breach. The order passed by this
Court so long as it stands, has got to be obeyed and its intentional and/or
deliberate violation is punishable as contempt. In other words so long as
the order has not been vacated or modified by the Court granting it, or
has not been reversed or stayed by the Appellate Court, the order must
be obeyed. 3
Death of husband
In law, a maintenance decree would not make any difference. It is
one of the settled principles of interpretation that the Court should lean
in favour of sustaining a decree and should not permit the benefit under
the decree to be lost unless thereby any special reason for it. If the
husband has left behind an estate at the time of his death there can be no
justification for the view that the decree is wiped out and the heirs would
succeed to the property without the liability of satisfying the decree.
1 Virender Kumar Seth vs. Roopa Seth, I (1989) DMC 210 All.
2 Vrinda Anand vs. (Maj.) Arun Anand, II (1986) DMC 341 Delhi;
Narinder Kaur vs. Pritam Singh, I (1985) DMC 181 Delhi: (1987)
Marri LJ 85
3 Shaheda Sarwar Khan vs. Sarwar Ahmed Rauf Khan, II (2000)
DMC 195 Bombay.
Enforcement of order—Defence 425
Default in payment
The defaulter could be sentenced to imprisonment for a period of
one year at the most as the wife or the other persons entitled to
maintenance allowance are required to file an application within a period
of one year from the date on which the amount becomes due. Accepting
this contention it was ordered as under:
In the case in hand, the amount of the maintenance allowance
from the date of application i.e. 27.1.1982 to 26.1.1983 became
due only when the Judicial Magistrate passed the parent order on
3.10.1983. The application for execution having been filed on
15.10.1984, is certainly barred by time in view of the provisions
of proviso (i) to Sub-section (3) Section 125 of the Code.
Although in this application the arrears from 27.1.1982 to
26.1.1982 had been claimed, the petitioner could have claimed
arrears of maintenance allowance from 15.10.1983 onwards.
Thus, the order of the Trial Court in sentencing the petitioner to
imprisonment for one year and ten months is certainly illegal
being violative of the above-referred mandate of the legislature
contained in proviso (i) to Sub-section (3) of Section 125 of the
Code. Consequently, the impugned order is party set aside by
accepting this petition to the extent that the petitioner would be
liable to undergo imprisonment for one year only for arrears of
maintenance allowance from 15.10.1983 to 14.10.1984. 2
Defence
Unless and until the order of maintenance passed under Section
125 of the Code is varied, altered or set aside under the provisions of the
Code, it is not open for the husband to contend that he is not liable to
make payment of maintenance allowance. 3
An application for enforcement of maintenance allowance is not
an application for execution. As such it is the duty of the Court to see
that its order of maintenance under Section 125 of the Code is complied
with unless and until that order is modified or altered or set aside in the
competent proceedings under the provisions of Section 125(4)(5) and/or
under Section 127 of the Code. It is also settled proposition of law that
any defence against an order passed under Section 125 of the Code ought
to be founded on a provision in the Code. Section 125 of the Code is
devised and designed to protect the weaker of the two parties, namely,
the rejected or dejected wife. There can be no any other dispute about the
settled proposition of law that if an order for maintenance has been
passed under Section 125 of the Code, against the deserter it shall be
binding and operating until it is altered or vacated in terms of the
provisions of the Code itself. Code is complete on the topic and any
defence against an order passed under Section 125 of the Code must be
founded on a provision in the Code itself. Until that is done it is
enforceable and no plea that there has been change in circumstances of
passing of any order under Section 24 of the Hindu Marriage Act or any
other plea can be permitted to be raised. 1
An order for payment of maintenance may be cancelled for any
other reasons contained in Sub-sec. (5) of Section 125. So under Section
125 such an order can be varied or even cancelled on the grounds
mentioned therein but as long as such an order is subsisting there is no
ground on which the respondent could be allowed to object to the
enforcement of the maintenance order. 2
1 Idris Ali vs. Ramesha Khatun, I (1990) DMC 107 Gauhati: AIR
(1989) Gau 24: (1988) 2 Gauhati LR 202: (1989) 1 Cri LC 201:
1989 Mat LR 125.
2 Chitra Lekha (Smt.) vs. Ranjit Rai, AIR 1977 Delhi 176.
3 Bhanwarlal vs. Smt. Kamla Devi AIR 1983 Raj 229: 1983
Rajasthan Law Reporter 314: 1983 Rajasthan LR 640: 1983 WLN
322: 1983 Mah LR 268: 1983 (2) Civ LJ 220.
428 Law of Maintenance
Effective date
In interpreting this section it must be borne in mind the purpose
of the provisions of Chapter IX relating to maintenance. This purpose is
to prevent to control vagrancy and destitution in the cases of wives,
children and parents. When a destitute wife, child or parent approaches
the criminal court and satisfies the court of the existence of the
conditions for passing an order under Section 125 of the Code. In the
normal course, the applicant must get maintenance from the date of the
petition, that is, the date on which he approached the court. There is no
provision in Chapter IX of the Code, which takes away the power of the
court to direct payment of maintenance from the date of the petition but,
on the other hand such power is recognised or reserved under Section
125(2) of the Code. A court may omit to mention date from which the
maintenance order is to take effect. The court may specifically direct the
order to take effect from the date of the petition. The court may also
direct order to take effect from the date of the order. Sub-section (2) of
Section 125 of the Code means only that where court has no specifically
directed that the order shall take effect from the date of the petition or
where the order is silent on the point, it shall be payable from the date of
order. It cannot be said that whenever a Court gives a specific direction
either way, it must be supported by reasons recorded in writing. It is
open to the court to take either view and incorporate it in the judgment.
Considering the purpose of the provisions of Chapter IX of the Code and
the specific object they seek to achieve, the Court has full discretion to
direct that the allowance is payable from the date of the petitioner. 2
The plain language of the provision makes it clear that if the
Court does not specially indicates the date from which maintenance shall
be payable, it should be taken to have been ordered from the date of
order. If the order itself indicates the maintenance shall be payable from
the date of application or from the date of order, there can be no
ambiguity and the parties know from what date the maintenance becomes
payable. Ambiguity would arise and parties would be put to difficulty
where the order is silent as regards the date from which the maintenance
is payable. It is to meet such contingencies that Section 125(2) of the
Code lays down that such allowance shall be payable from the date of
order. If the provision is only to the effect that it shall be payable from
the date of order, there will be no discretion left to the Court to make
1 Saroj Bai vs. Jai Kumar Jain, II (1995) DMC 589 MP.
2 Saroj Bai vs. Jai Kumar Jain ibid.
3 Savitri Govind v. Govind Singh, 1985 Mah. LJ 977.
4 Makhdum Ali v. Nargis Bano, 1983 Cri LJ 111.
430 Law of Maintenance
been the consistent approach of various Courts since long. In one such old
case1 revisional jurisdiction was used for the first time to direct maintenance
from the date of application. The reasons which weighed with the Court
were that neither husband nor any member of his family deserved any
sympathy or consideration because they had behaved badly with the wife.2
The applicant was forcibly turned out by the husband-opponent who
never cared or tried to bring back the applicant and on the contrary married
another woman. In such circumstances, it is not difficult to conceive that the
applicant was driven to seek help and obligation of other quite unwillingly
to order in order to survive during the period of litigation. The husband
having not cared for the maintenance of the applicant-wife during the period
of litigation nor having made any attempt to bring her back till the filing of
the application would not be justified in contending that the applicant
should not have been allowed maintenance for the period of litigation.3
Section 24 of the Act, does not specify that the amount of
maintenance which is awarded under the said provision is to be paid from
the date, the petition for divorce is filed. It is for the Court to consider this
circumstances and it may award the maintenance from the date the
application is fixed on from the date the order is passed. It is the discretion
of the Court which is exercised after taking into consideration various
facts.4
On the point of arrears, it was found that there were lapses on the
part of the petitioner herself. She was being maintained by her parents and
brothers for quite some time. When she had felt that her parents and
brothers were unable to maintain her, she moved an application for
maintenance. In these circumstances, it was held that for the delay in
moving the Court, the arrears of maintenance may not be allowed.
Therefore, the petitioner was held entitled to claim maintenance at the rate
of Rs. 200/- per month from the date of order passed by the Court.5
The proceedings under Section 125 Criminal Procedure Code
lingered on to nearly 5 years and wife was not only feeling the mouths of
her children in these hard days but also spent money for prosecuting her
application under Section 125, Criminal Procedure Code and it was only
after a lapse of so many years when the order granting maintenance was
passed. It was held that, the delay in disposal of the proceedings under
Section 125 Criminal Procedure Code is by itself a sufficient ground to
grant maintenance to the wife from the date of application. The wife
cannot be made to suffer on account of delay in disposal of application
for maintenance. 1 On the question as to from which date the amount of
mantenance should be granted, it was observed:
The provisions of Sub-section (2) of Section 125 Criminal
Procedure Code have not been held to be mandatory or obligatory
and the special reason for granting maintenance allowance from
the date of the application have also not been considered
necessary, if the disposal of the proceedings itself makes out a
prima facie case for delay without any fault on the part of the
lady. The cases in which this Court has held that the reasons
should be recorded expressly have been consistently followed.
However, it was never considered whether the provisions
contained in Sub-section (2) of Section 125 Criminal Procedure
Code were ultra vires on the touch stone of reasonableness as
enshrined under Articles 14 of the Constitution of India. The
orders of maintenance granted by the lower Court have been
challenged in this Court frequently on the ground that the order
of maintenance with effect from the date of the application is
illegal and is liable to be quashed. It appears therefore necessary
to examine the legality or otherwise of the provisions contained
in Sub-section (2) of Section 125 Criminal Procedure Code.
It was further observed as under:
The claim for maintenance is a substantial right of the person
mentioned in Sub-section (1) of Section 125 Criminal Procedure
Code. It arises from the date when the person having sufficient
means and legally liable to maintain, neglects or refuses to
maintain. True, if the Claimant does not himself or herself initiate
proceedings before the Competent Magistrate for grant of
maintenance, no maintenance can be granted for the period during
which such claim has not been made. It is but natural because
even the mother does not provide milk to her child without the
latter crying. The claim under any existing law are enforced
normally only from the date of the receipt of application or the
claim having been preferred but once a claim arising out of a
legal right or obligation has been presented to a Competent
Authority under the law, it becomes payable from the date of the
claim itself. If there is anything special to deny the claim from
that date of demand, special reasons will be required to be
recorded. But here the impugned provision contained in Sub-
section (2) of Section 125 Criminal Procedure Code reverses the
general proposition of law and the nature. This provision appears
to me to be opposed to good conscience, equity and fair play.
Execution of order
In one case the amount of Rs. 100/- was fixed in the year, 1986.
Since then, the child had grown and it was important for his welfare that
he should get proper education and, therefore, there was no legal bar
against applying for increase of the maintenance amount under the
provisions of Section 127 Criminal Procedure Code. When the appeal
was pending before High Court and heard, the Court will naturally take
note of the fact that the amount of maintenance, so far as minor child is
concerned, has already been increased from Rs. 100/- to Rs. 300/- per
month. There is no reason why the child should suffer so far as his
Future default
Section 125(3) Criminal Procedure Code provides that if any
person ordered to pay maintenance fails without sufficient cause to
comply with the order the 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. So far as future maintenance allowance is
concerned, it was observed as under:
‘The monthly amount of maintenance becomes due on 22 nd of
every month and, therefore, the maintenance amount with respect
to the period from November 21, 1984 to December 20, 1985 will
become due only on December 22, 1985. In the instant case, the
Judicial Magistrate had passed a recurring or running order
assuming that the petitioner would commit a breach of the order
in future as well. This could not be done by the Judicial
Magistrate because in view of the express language of Section
125(3) for every breach of the order, the Judicial Magistrate has
to issue a warrant for levying the amount due in the manner
provided for levying fines. It may be that with respect to the
future period, the petitioner may himself voluntarily pay the
maintenance amount to avoid the sentence of imprisonment which
is the consequences of non-payment of the whole or any part of
each month’s allowance. The order of the Judicial Magistrate,
Malpura, directing the Chairman of Hindustan Aluminium
Company Renikoot for deducting the amount of Rs. 500/- every
month from the salary of the petitioner and to remit the amount to
his court is against the provision of Section 125(3) Criminal
Procedure Code. It may also be mentioned that the petitioner has
not paid any maintenance allowance to the non-petitioner even
after the date she had filed application before the Judicial
Magistrate on December 12, 1985. The Magistrate can of course
include in the warrant the amount of arrears of maintenance
which had become due for the period from December 12, 1985
to date.’ 2
Hearing of appeal
An appellant was represented by a counsel. The respondent wife
was not in a position to engage a counsel unless litigation expenses are
1 Ram Narain vs. Darpoti Devi, I (1983) DMC 153 Delhi: 1983
Rajdhani LR 4: AIR 1983 Delhi 346.
2 Anuradha Pal vs. Jeewan Pal, I (1996) DMC 207 MP.
436 Law of Maintenance
sending the husband to jail. Sentencing to jail is the means for achieving
the end of enforcing the order by recovering the amount of arrears. It is
not a mode of discharging liability. The section does not say so. The
Parliament in its wisdom has not said so. Commonsense does not support
such a construction. From where does the Court draw inspiration for
persuading itself that the liability arising under the order for maintenance
would stand discharged upon an effort being made to recover it? The
order for monthly allowance can be discharged only upon the monthly
allowance being recovered. The liability cannot be taken to have been
discharged by sending the person liable to pay the monthly allowance, to
jail. At the cost of repetition it may be stated that it is only a mode or
method of recovery and not a substitute for recovery. 1
Inherent jurisdiction
The Court has inherent jurisdiction under Section 151 of the Code
of Civil Procedure, to give affect to its order. It has inherent jurisdiction
to prevent the abuse of the process of the Court. In giving effect to its
order, the Court below would have been justified to strike off the
defence, even if there is no such provision in the Hindu Marriage Act.
Instead of exercising the jurisdiction so vested in the Court, the lower
Court has thrown its hands in despair and has offered a gratuitous legal
opinion to the revision petitioner to file an execution petition, which, as
stated by Banerjee, J. 2, is not an easy going highway, and is beset with
all imponderables and practical difficulties. 3
Instalments
In order to avoid the hardship to both the parties and keeping in
view the income of the husband, it was directed to pay arrears of
maintenance allowance in easy instalments to the tune of Rs. 400/- per
month. It was however provided that in case he commits default in
payment of any of these instalments, the respondent shall be entitled to
realise the amount in lump sum. 4
1 Kuldip Kaur vs. Surinder Singh, AIR 1989 SC 232: 1989 CrLJ 794:
1989 SCC (Cr) 171: 1989 CAR 9: 1989 CrLR (SC) 25: 1989 (1)
Crimes 1: 1989 MPLJ 1.
2 in Anita Karmokar’s case reported at AIR 1962 Cal. 88
3 Mangalam vs. P.S. Krishna Pillai, II (1992) DMC 545 Ker.
4 Kanwal Nain vs. Shashi Bala @ Rachna, I (1992) DMC 529.
Enforcement of order—Limitation 439
Limitation
The amount of maintenance shall be deemed having become due
from the date of the order by the trial Magistrate, if no revision is
preferred or stay obtained against the said order. However, if the
aggrieved party prefers a revision petition and obtains a stay order or in
any way prevents the execution of the order, it will not lie in his mouth
to urge subsequently that the order cannot be executed on the ground of
having become barred by time only because the proceedings remained
pending in a higher Court. Similarly the mere pendency of the revision
petition without there being any stay or other intervening circumstance
preventing the claimant from filing the petition, would not condone the
delay because in that event the amount found due would be deemed to be
due from the date of order of the trial Magistrate, because the same
became effective and was not prevented or obstructed to be executed. No
party can sleep over its rights merely on the pretext that some revision
petition is pending even though the Revisional Court has chosen not pass
any order staying the execution of the order granting maintenance. If the
Revisional Court does not stay the operation of the order or its execution
with the intention of achieving the object of granting the maintenance to
the deserted wife or children, the claimants or the beneficiaries cannot be
allowed to sleep over their rights and not to agitate the matter merely
because the higher Court is seized of the matter despite the fact that the
execution of the order had not been stayed. The period of limitation
would commence from the date of the decision of the application or from
the date when the same became final, if its operation had been stayed by
the Revisional Court. 1
When the application under Section 128, Criminal Procedure
Code was made for the recovery of the amount for 17 months, the Trial
Court could not have issued the warrant for recovery of the amount for a
period of five months. Thus, the warrant for claim of maintenance issued
by the Trial Court for a period beyond one year which includes five
months is illegal. 2
The maximum period of limitation for the execution of that
decree is twelve years from the date when the decree becomes
enforceable. It is time and again said by various authoritative
pronouncements of the Apex Court that this Article should receive a fair
and liberal and not a technical construction, with a view to enable the
decree-holder to reap the fruits of the decree and it will not be in
consonance with the principles of just interpretation to strain the
enforce arrears of more than one years arrears. 1 On facts also it was
observed as under:
‘In the instant case, Mst. Jakali had moved an application for
grant of maintenance as early as on 1-6-81 which was decided
only on 15-12-83. Merely filing an application by husband for
setting aside that order could not prevent her from filing such
application for enforcement of the order. There was nothing to
prevent the wife from making an application for the enforcement
of the order passed in her favour within one year of the decision.
Therefore, awarding of arrears beyond the period of one year and
without there being stay from 1-6-81 to 1-6-84 is abuse of the
process of the Court and as such the order dated 21-3-87 is liable
to be quashed. 2
Moral duty
The Court has granted the amount of maintenance and it was the
moral duty of the petitioner to make payment of the amount, as directed
by the Court. For some reason, if the non-petitioner could not approach
the Court within one year, it does not take away the moral duty of the
petitioner to make the payment of the maintenance amount. The
maintenance amount is always granted when the relations between wife
and husband become strained and when they live separately, or when the
divorce is effected. The lady who always remains at the mercy of the
husband and who is turned out, has no source of income to maintain her,
and even to approach the court regularly. The husband who is always at
the better position and who can exert influence, wants to harass the lady.
It does not matter whether the non-petitioner requests the Court in time
after the period of limitation. A moral duty is enjoined on the husband,
and without making shelter of technalities of the law and the provision of
Section 125(3) Cr.P.C. he should have paid this amount. 3
Nature of right
The right of a wife for maintenance is an incident of the status
and a Hindu husband is under a legal obligation to maintain his wife.
This obligation is personal in character and arises from the existence of
relationship between the parties. Sub-s. (1) of Section 18 of the Act only
reiterates the general rule a Hindu Law on the subject. This right of a
Hindu wife exists independently of the question as to whether the
husband is in possession of any property or not. The wife’s case cannot
also come under Section 28 of the Act. As long as the husband is living,
Place of execution
A number of enabling provisions were passed after the partition
to meet certain special cases of this kind and of course, where there is
specific legislation, effect must be given to it. But where, as here, there
is nothing, then in the absence of a specific bar it was held that an order
which was good and competent when it was made and which was passed
by a tribunal which was domestic at the date of its making and which
could, at that date, have been enforced in an Indian Court does not lose
the efficacy by reason of the partition. There is no reason why an order
which was competent and valid at the time it was made and which could
have been enforced in Delhi should cease to be competent simply by
reason of the partition. A foreign order could not be enforced in this
way. But the order here was a competent order of a domestic tribunal
when it was made and could then have been enforced in the Delhi Court.
In the absence of any specific bar there is no reason why it should lose
its Indian nationality simply because the place in which it was born was
later made foreign territory. 4
1 Udayanath Samal vs. Siri Dei, AIR 1973 Orissa 196: (1973) 1 Cut
WR 448.
2 1987 WLNOC 158.
3 Bansidas vs. Naraini, I (1989) DMC 214 Raj.
4 Kishori Lal vs. Sm. Shanti Devi, 1953 AIR SC 441: 1953 CrLJ
1923.
Enforcement of order—Procedure for recovery 443
Remedies available
It is incorrect proposition that the only remedy available to the
party who has been granted interim maintenance is to seek execution or
the order under Section 125 (3) of the Code. The Magistrate has all the
powers to make his orders effective and this power includes the power to
strike off the defence. If this power is not recognised, this will frustrate
the very purpose of grant of interim maintenance. A husband/father can
always delay the proceedings by playing delaying tactics and keep his
wife and children on the road. Obviously the very purpose of introducing
Section 125 was to save the wife and the children from vagrancy. The
petitioner was thus held not entitled to any relief in these proceedings
but as a matter of concession a direction is issued that if he pays the
entire amount due under the order of interim maintenance within one
month from today the order of striking off the defence shall stand
revoked and he will be allowed to contest the petition. 1
Stay of order/proceedings
The petitioner-wife in course of a proceeding under the Hindu
Marriage Act was awarded certain maintenance by way of interim
alimony under Section 24 of the Hindu Marriage Act. Thereafter she
resorted to an application under Section 125, Criminal Procedure Code
for maintenance and that application was allowed on contest. Thereafter
there was an application under Section 127, Criminal Procedure Code by
the opposite party-husband which application was rejected by the learned
Magistrate. The husband did not come up against either the order passed
under Section 125, Criminal Procedure Code or the order passed under
Section 127, Criminal Procedure Code. Since there was no payment in
terms of the order under Section 125, Criminal Procedure Code, the wife
resorted to an executing proceeding. It was observed as under:
So long the original order under Section 125, Criminal Procedure
Code remained intact and so long this order is not challenged in
any higher Forum, the opposite party-husband is bound to make
payment in accordance with the said order. The opposite party-
husband has not come against any order Section 125 Criminal
Procedure Code or any other order and as such the learned
Session Judge was not right in granting the blanket stay of the
order dated 5.4.1997 when the original order under Section 125,
Criminal Procedure Code remained intact. 2
When the Civil Judge made a direction that the husband shall pay
the arrears of maintenance, it was his highest duty to insist upon
obedience to that direction. If there was disobedience he had inherent
power to stop further proceedings which were commenced by the
husband. 3
Failure to pay maintenance is a non-compliance of statutory
requirement under Section 24 of the Hindu Marriage Act, 1955. It is the
right conferred on a spouse under the statute, provided valid
circumstances are made out. Her right to get maintenance had been
already recognised. This statutory right acquired by her cannot be taken
away, because of non-compliance of any of the order obtained by the
husband regarding other as aspects. It is for him to take suitable
proceeding against her for non-compliance of order of court, if any. She
1 Codd vs. Codd, AIR 1924 Bombay 132; Maish vs. Masih, AIR 1941
All 93; Krishan Kumar, 1961 Punjab 42; Anita vs. Birendra
Chandra AIR 1969 Calcutta 88; Bhuneshwar Prasad vs. Dropta
Bai AIR 1963 MP 259; B.M.M. Naidu vs. Shantamma AIR 1971
Mysore 25; Anuradha vs. Santosh Nath AIR 1976 Delhi 246; A.
Susselamma vs. A. Raghunadha, 1977 MLR 196 (DB) and Prithpal
Singh vs. Anup Kaur,1978 HLR 59
2 Jai Rani vs. Om Prakash Saini, I (1984) DMC 154 Delhi: Bishoke
Kumar Dutta Choudhury vs. Amita Durra Choudhury, I (1983)
DMC 202 Calcutta.
3 Jai Rani vs. Om Prakash Saini, ibid.
4 Amar Jit vs. Sunder Lal, I (1990) DMC 68 P&H.
Enforcement of order—Waiver 451
Subsequent events
In Bhupinder Singh v. Daljit Kaur, 4 it has been observed as
follows:
“If an order for maintenance has been made against the deserter it
will operate until vacated or altered in terms of the provisions of
the Code itself. If the husband has a case under Section 125(4),
(5) or Section 127 of the Code, it is open to him to initiate
appropriate proceedings. But until the original order for
maintenance is modified or cancelled by a higher court or is
varied or vacated in term of Section 125(4) or (5) or Section 127,
its validity survives. It is enforceable and no plea that there has
been cohabitation in the interregnum or that or that there has been
a compromise between the parties can hold good as a valid
defence.”
This view has been referred with approval by Rajasthan High Court. 5
Waiver
Under a Clause of the compromise decree, wife had specifically
reserved her right to execute the decree notwithstanding the fact that she
decided to live with her husband. When she had specifically reserved a
right in her favour, there is no waiver on the part of the wife nor there is
any abandonment of the decree on her side. 6
1 Ghasiram Das vs. Arundhati Das, AIR 1994 Ori 15: (1994) 1
DMC 578: 1994 (1) Hindu LR 545: 1994 Marri LJ 203: 1993 (2)
Ori LR 508.
2 Kanti Devi vs. Balbir Singh, I (1990) DMC 35 P&H.
3 Paramjit Kaur vs. Kashmir Singh, 1994 (1) DMC 504 P&H.
4 (1979) Cr.LJ. 198.
5 Kaur Singh vs. State of Rajesthan, II (1989) DMC 68 Raj.
6 Lakshmi Veera Venkatarantnam vs. Kudupudi Sri Krishna Vara
Prasad, II (1999) DMC 268 AP.
452 Law of Maintenance
Chapter 11
Muslim law
SYNOPSIS
Application of Act of 1986 .............452 Object behind four marriages ....... 472
Application of Act of 1986 on pending Right to property ........................... 473
application .....................................454 Object of granting maintenance .... 474
Application of Criminal Procedure Obligation of Muslim father .......... 475
Code, 1973 .....................................455 Payment of mehr ............................ 476
Deduction from maintenance .........456 Period of maintenance................... 477
Divorce...........................................456 Principles of law............................ 478
Effect of Act of 1986 on existing order Procedure for application of Act of
.......................................................457 1986 ............................................... 479
Effect of Act of 1986.......................460 Procedure of talaq ......................... 479
Effect of delay ................................460 Proof of divorce ............................. 482
Effect of dissolution of marriage....462 Reconsideration of order ............... 485
Effect of divorce .............................463 Refusal co-habit ............................. 486
Effective date of Talaq ...................463 Retrospective application of Act of
Ex parte order ................................463 1986 ............................................... 487
Exercise of option ..........................465 Return of gifts ................................ 488
Family Court ..................................465 Right of child ................................. 489
Invalid divorce ...............................466 Right of divorced wife.................... 495
Liability of husband .......................467 Scheme of Act of 1986 ................... 495
Liability of State Wakf Board .........468 Second marriage by husband ........ 497
Mahr or dower ...............................469 Talaq without any cause ................ 500
Major children ...............................469 Territorial jurisdiction .................. 500
Meaning of Iddat period ................469 Triple pronouncement of talaq ...... 501
Natural Justice ...............................470 Validity of Act of 1986 ................... 507
Object and scope of Act of 1986 ....471
Act would come into play if there is divorce an das already indicted
above, the parties are yet to lead evidence to prove the fact whether the
divorce had taken place or not. In a Full Bench authority 1, it has been
held that claim of maintenance by a divorced Muslim wife under the
provision of Section 3 of the Act cannot be restricted to the period of
‘Iddat’. If it is to be restricted to the period of Iddat, husband has to
show that he has made and paid a reasonable and fair provision and
maintenance to the wife which is an adequate provision for her life or till
she re-marries. 2
In one case it appeared that in the show cause filed by the
opposite party it was stated that when the petitioner did not like to live
with him, he divorced and has returned all the articles, utensils and
expenses of iddat period. Whatever may be the factual position, such
direction cannot be issued in the instant proceeding under Section 125 of
the Code of Criminal Procedure. If, in fact, the petitioner had not been
paid her agreed amount of dower (Mehr) and other articles which were
given to her at the time of marriage and thereafter then she will be at
liberty to initiate action against the opposite party for the recovery of
dower amount and other properties under the provisions Muslim Women
(Protection of Rights on Divorce) Act, 1986. 3
In a division bench judgment 4 it was held that the provisions of
the Act, 1986 have no retrospective force and it covered the cases filed
after the Act, 1986 comes into force and to those cases pending under
Section 125 or 127 Criminal Procedure Code when the Act was brought
into force. 5
In essence the 1986 Act is meant to protect the rights of Muslim
women who have been divorced. This special enactment has embodied in
its provisions the principles of Mohammedan Law. Section 5 of the 1986
Act provides for an option to be exercised by the husband and the wife
jointly to opt for the provisions of Section 125 to 128 of the Criminal
Procedure Code in a proceeding in an application under Sub-section (2)
It was not the case of the petitioner that the respondent had given
his consent in writing or participated in the enquiry. It appeared that
when the petition was reserved for orders, the Act came into force and
the learned Magistrate, without resorting to Section 5 of the Act to
ascertain the willingness of the parties, had pronounced the orders. As
the order was passed under Section 125 of the Code without obtaining
the necessary consent of the husband in writing with regard to his
preference to be governed by the provisions of Section 125 of the Code,
the order of the Magistrate was held to be not binding. 1
Divorce
Under the Quran the marriage status is to be maintained as far as
possible, and there should be conciliation before divorce, and, therefore,
the Quran discourages divorce, and it permits only after pre-divorce
conference. The divorce must be preceded among Muslims by an attempt
of reconciliation between the husband and wife by two mediators— one
chosen by the wife from her family and the other by the husband from
his side. A Mohammedan husband cannot divorce his wife at his whim or
caprice i.e., divorce must be for a reasonable cause and it must be
preceded by a pre-divorce conference to arrive at a settlement. Even if
there is any reasonable cause for the divorce, yet there must be evidence
to show that there was an attempt for a settlement prior to the divorce
and when there was no such attempt prior to divorce to arrive at a
settlement by mediators, then there cannot be a valid divorce under
Mohammedan Law. 2
In this case the reasons given by the husband in his “Talaqnama”
were not found to be justifiable reasons for divorce. Even assuming that
the husband in his “Talaqnama” dated has given justifiable reasons,
there is no whisper in his “Talaqnama” that the alleged divorce had been
Therefore the wife is entitled to get maintenance for the Iddat period
along with other dues such as Mahr and dehej etc. 1
The Act of 1986 has completely obliterated the right of
maintenance to divorced Muslim woman. The repeal without saving such
right means that such woman had never acquired such right and in the
view of the matter, the said right now cannot be enforced under Section
125 Cr.P.C. Even if an order granting maintenance had been passed in
favour of a Muslim divorced woman prior to the coming into force of the
Act of 1986 and has become final or is pending in the revision before
any Court or is being challenged by the husband, even in those cases, the
Muslim divorced woman is not entitled to get the Maintenance as
allowing the maintenance in those cases will be in complete
contravention of the intention of the legislature and will amount to
frustrate the very object of Act for which it has been enacted. No
exception has been made in Section 7 of the Act of 1986, which means
that neither the order passed under Section 125 Cr.P.C. nor the liability
already incurred earlier to the coming into force of the Act, 1986 has
been saved. The inevitable conclusion of passing of the Act of 1986 is
that not only right under Section 125(1) but also the remedy under
Section 125(3) Cr.P.C. are lost. Section 7 of the Act of 1986 envisaged a
complete replacement of right and remedy under Section 125 Cr.P.C. 2
Another view is that the 1986 Act does not contain a provision
enabling reopening of order passed under the provisions of the Code
which have become final. This is one more indication to show that mere
change of law cannot lead to alteration or cancellation of orders passed
under the Code which have become final. 3
The non obstante clauses is in general terms. Section 125 and 128
of the Code as such do not stand superseded. There is no provision in the
Muslim Women Act to the effect, “notwithstanding anything contained
in Section 125 to 128 of the Code maintenance of Muslim Women shall
be governed by the provisions of the Muslim Women Act or to the effect
that Section 125 to 128 of the Code shall stand repealed in so far as
maintenance of Muslim Women is concerned. It follows that the
provisions of Section 125 to 128 have been superseded only to the extent
that there is a provision in the Muslim Women Act on matters covered
under Chapter IX of the Code. It further follows that if no contrary
provision has been made either expressly or by necessary implication in
1 Sadique Ali vs. Apar Sessions Naiyai Dheesh, Basti, II (1995) DMC
222 All.
2 Abdul Hamid. vs. Mst. Asia, I (1992) DMC 522 Raj.
3 P.A. Shamsudeen vs. Sabhiya, I (1989) DMC 97 Kerala.
Muslim law—Effect of Act of 1986 on existing order 459
the Women Muslim Act, the provisions of the Code in Chapter IX shall
hold the field. Sub-section (2) of Section 3 as well as Section 4 of the
Muslim Women Act contain provisions regarding enforcement of order
of maintenance granted under the said Act as distinguished from
enforcement of an order passed under the Code where order had acquired
finality before the commencing into force of the said Act. 1
A careful consideration of the Muslim Women Act shows that
there is no provision whatsoever with regard to enforcement of an order
of maintenance which has already become final under the Code before
coming into force of the Muslim Women Act. This only implies that the
provisions with regard to enforcement of such orders contained in the
Code hold good even after coming into force of the Muslim Women Act. 2
In one case when the wife and the daughter applied for
maintenance, the 1986 Act was not in force. Similarly, the wife was not a
divorced woman. The application filed by the wife under Sub-section (3)
of Section 125 Criminal Procedure Code was for execution of the order
of maintenance. The order of granting maintenance to wife the
Magistrate was upheld by the Session Court, High Court and the
Supreme Court. Thus, the claim of wife stood finally decided and as such
she accrued a substantial right. In has become a vested right in the wife.
The amount claimed in the execution application in question was for the
period prior to the date of divorce. When such a valuable vested right to
claim certain amount was accrued to the non-applicant in her capacity as
a wife, the same cannot be taken away by the provisions of 1986 Act.
The nature of the vested right accrued to the non-applicant is as regards a
money claim. The right of a destitute wife or a minor claiming
maintenance in Chapter IX of the Criminal Procedure Code is essentially
a civil right. The remedies provides in the said chapter are in the nature
of civil rights. The proceedings under Section 125 are essentially civil in
nature. Thus when a vested right is accrued to a wife to claim her past
maintenance, the provisions of the 1986 Act therefore cannot affect her
right to institute the recovery proceedings. Even if a Muslim wife is
divorced during the pendency of her application for execution within the
meaning of Sub-section (3) of Section 125 Criminal Procedure Code her
previous claim of maintenance as a vested right will not be taken away
by the 1986 Act. The right which accrued to her as a vested right cannot
be altered or abrogated by the 1986 Act. 3
Effect of delay
Sub-section (3) of Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 provides that where an application has
been made under Sub-section (2) by the divorced woman, the Magistrate
may make an order within one month of the date of filing of the
application, directing her former husband to pay such reasonable and fair
provision for maintenance to the divorced woman as he may determine as
fit and proper having regard to the circumstances, he may also pass an
order for the payment of such Mehr or dower or the delivery of such
properties referred to Clauses (d) of Sub-section (1) to the divorced
woman. There is one provision to the section which prescribes that if the
Magistrate finds it impracticable to dispose of the said application within
the said period, he may, for the reasons to be recorded by him, dispose
the application after the said period. This section provides for speedy
remedy when any prayer under Section 3 of the Act is filed by a divorced
woman before a competent Court. 1
A contention was raised that such a speedy remedy could not be
made available to the divorced lady and the petition should be dismissed
as Magistrate did not record reasons for such delay in disposing of the
said application. It makes out a proposition that the legislature intended
that if no speedy remedy is made available to the destitute lady, her
application should not be considered. That can never be proposition of
enacting the special Act for the purpose of giving relief to a Muslim
Divorced lady. If the Magistrate is unable to dispose of the application
within one month as provided in Sub-section (3) of Section 3 of the Act
for the matter if he does not record the reason, a divorced lady is out of
ground for no fault of her own. For granting relief to a lady she is to file
an application with necessary details and allegations if any, and it is the
duty of Court to take speedy recourse to make available to the petitioner
the relief granted by the Legislature under the special legislation and if
he cannot do it within the period which was provided in the Act the lady
should not suffer. 2
The provision referring that the said section is directory and not
mandatory. The word “may” has been used in all the places even when in
the proviso where it has been stated that the Magistrate may record the
reason if it is not practicable from his to dispose the application within
one moth. By not following the direction, as mentioned in Sub-section
(2) of Section 3 of the Act the Magistrate has committed an illegality for
which the proceeding would be not be vitiated. 3
Section 3(3) of the Act mandates that when an application is
made under Sub-section (2) by a divorced woman, the Magistrate may, if
he is satisfied that the divorced woman is entitled to the claim made by
her, make an order within one month of the date of filing of the
application, directing her former husband to pay the amounts found by
him. The proviso to Section 3(3) stipulates that if the Magistrate finds it
impracticable to dispose of the application, he may, for reasons to be
recorded by him, dispose of the application after the said period. No
reason for the delay in disposing of the petition filed by the respondent is
stated in the order passed by the learned Magistrate. 1
From the context the phrase ‘Magistrate may make an order
within one month of the date of filling of an application’ used in Section
3(3), it is clear that the word ‘may’ is used to mean ‘shall’ especially
considering the fact that the proceedings under Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act is a summary proceeding
intended to achieve the object of the enactment of the Act to give
immediate relief to divorce Muslim Women to whom the reliefs are not
provided by her former husband within the period of Iddat. But merely
because of the failure of the Magistrate to record the reasons for the
delay in disposal of the application, the order passed by the Magistrate
will not be rendered in valid or unsustainable. The failure, if any, on the
part of the Magistrate to give reasons for the delay in disposal of the
application within the time of one month as stipulated in Section 3(3) of
the Act should not cause any harm or prejudice to the beneficiary of the
Act in whose favour the order is passed by the Magistrate,
though belatedly. 2
Effect of divorce
There is some amount of dispute whether there was divorce.
Mulla in Principles of Mohammedan Law 1, has stated as follows:—
“If a man says to his wife that she had been divorced yesterday or
earlier, it leads to a divorce between them, even if there be no
proof of a divorce on the previous day or earlier”.
While considering an aspect of the Mohammedan Law, one
should not be influenced by one’s sense of rigid approach as regards
marriage and divorce applicable to Hindus. The quoted portion from
Mulla clearly shows that under the Mohammedan Law, husband is in an
advantageous position and has been conferred a special right not only to
divorce the wife orally in the manner provided under the Mohammedan
Law but also by issuing a notice or filing a written statement in defence
to maintenance claim. A similar view expressed by the Andhra Pradesh
High in Mohammed Ali vs. Faredunnisa Begum 2 was held to be laying
down the correct position in law in Sk. Mohiuddin vs. Hasina 3 and in
Sayed Nawai @ Alias Nati vs. Rasida Begum. 4
Ex parte order
It will be wrong to say that since there is no express provision in
the Code, the Magistrate does not have power to dismiss the proceeding
for default of the petitioner. Supposing that the petitioner being no more
interested does not appear in the case, then should the Magistrate
helplessly adjourn the case or should he issue any process for compelling
the petitioner’s appearance or should be proceed with hearing and record
the evidence of the opposite party and finally dismiss the case on the
basis of the evidence so collected ? If these questions are answered in
not heard the view point of the Commander. All the same this
Court does expect that such letters should come from defence
authorities after they have applied their mind to the entire
circumstances and facts of the case and it is better if they give
slight indication showing as to why it is not possible to spare an
officer when a destitute woman, whose case the Parliament wants
to be decided in a month, is suffering.’ 1
Exercise of option
The application had been filed by the opposite parties under sub-
section 2 of Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act 1986. Proceeding continued before the Magistrate and on
the first hearing the parties did not exercise their option to continue the
proceeding under Section 125 of the Code Criminal Procedure. As
provided in Section 5 of the Muslim Women (Protection of Rights on
Divorce) Act, the option not having been exercised on the first hearing to
continue the proceeding under Section 125 to 128 of the Code Criminal
Procedure, the question of application of Section 125 of the Code does
not arise. 2
Section 3(2) of the Act enables a divorced Muslim woman where
a reasonable and fair provision and maintenance or the account of mahr
or dower due has not been or paid, to file an application before a
Magistrate for an order for payment of such provision and maintenance,
mahr or dower, or the delivery of properties, as the case may be. 3 Section
125 of Code of Criminal Procedure would apply only if both parties
exercise, their options at the first hearing of the application under
Section 3(2) of the Act as contemplated under Section 5 of the Act and
not in any other manner. Consequently the Magistrate cannot exercise his
jurisdiction under Section 125, Criminal Procedure Code in case of a
divorced Muslim woman unless an application is filed under Section 3(2)
of the Act parties exercise their options as required under Section 5 of
the Act. 4
Family Court
The Family Court Act was an earlier enactment. If the Legislature
wanted to invest jurisdiction to the Family Court they would have clearly
mentioned that fact in Section 3 of the Act 25 of 1986. The Legislature
purposely used the word “Magistrate”. Certainly, in respect of Mahr and
Invalid divorce
In one case the petitioner/wife stated that the talaq given by the
respondent was not pronounced before any witness and it was illegal and
the talaq given by the respondent to her is not in accordance with
principles of Shariat and Muslim Law. The order passed by the Court
below also showed that the Advocate appearing for the petitioner argued
before the Court below that the talaqnama pronounced by the respondent
and the talaqnama prepared by him is not as per Muslim Personal Law
and, therefore, it had no sanctity under Mohammedan Law and the
respondent was bound to offer an opportunity to the petitioner to
negotiate and to live with him. It was observed as under:
‘The divorce must be preceded among Muslims by an attempt of
reconciliation between the husband and wife by two mediators
one chosen by the wife from her family and the other by the
husband from his side. In the above view of the matter, a
Mohammedan husband cannot divorce his wife at his within or
1 Secretary, Tamil Nadu Wakf Board vs. Syed Fatima Nachi, 1996(4)
SCC 616: AIR 1996 SC 2423: 1996 CrLJ 3488
Muslim law—Meaning of Iddat period 469
Mahr or dower
Mahr or dower is the sum of money which the wife is entitled to
receive from her husband in consideration of marriage. It cannot be a
consideration for divorce. It is an obligation of a husband arising from a
contract, or otherwise imposed by law or custom on the husband as a
token of his respect for his wife. The language of this sub-section itself
makes it clear that this sum becomes payable to the wife on marriage or
any time thereafter. By asking the husband to pay this amount within the
Iddat period the Legislature has emphasised the urgency of payment.
Mahr is a liability which does not get absolved as a result of any other
payment or consequence. Therefore, Section 3(1)(c) is an additional
benefit. The amount of maintenance or reasonable and fair provision
cannot be confused with mahr. In fact Mahr is no substitute for it. In a
given case a wife may take the mahr amount from her husband even prior
to divorce because of some exceptional circumstances and spend it. 2
Major children
The Mohammedan Law does not cast any responsibility upon the
father for the maintenance of the two adult sons. It was further held that
there was no evidence to show that they are unemployed. Thus the
maintenance was denied. 3
1 Secretary, Tamil Nadu Wakf Board vs. Syed Fatima Nachi, 1996(4)
SCC 616: AIR 1996 SC 2423: 1996 CrLJ 3488
2 Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000)
DMC 634 Bombay.
3 Sugrabi vs. Abdul Quayum, I (1985) DMC 254 Bombay.
4 Tajuddin vs. Quomarunnisa Begum, II (1989) DMC 204 AP.
470 Law of Maintenance
Natural Justice
The principles of natural justice must be read into the unoccupied
interstices of the statute unless thee is clear mandate to the contrary. 3
Even in administrative matters where a statute does not make any
specific provision for issuing notice, it has been held that where exercise
of that administrative power results in civil consequences to citizens,
unless the statute specially rules out the application of rules of natural
justice, such rules would apply that is notice would have to be issued to
the parties and he will have to be heard. 4
The matter is to be decided by a Court judicially having civil
consequences on the rights of the parties. So, it appears necessary that
husband should be given notice and opportunity of being heard. No
doubt, Sub-Section (4) further provides that if the husband, against
whom an order has been made under Sub-section (3), fails without
sufficient cause to comply with the order, the Court may levy the amount
or order imprisonment. But this does not appear to me that since notice is
to be given under Sub-section (4), it should not be given under Sub-
section (3). The provision regarding maintenance is to be found under
Section 125 Criminal Procedure Code. If Sub-section (1) says that upon
proof of such neglect or refusal to maintain the Magistrate may direct a
monthly allowance to be given to the wife. It is after hearing the husband
and giving notice to him that action is taken under this provision and the
Magistrate on proof of the fact may make an order. Still under Sub-
section (3) of Section 125, Criminal Procedure Code it has again been
provided virtually in the words of Sub-section (4) of the Act that if the
husband fails without sufficient cause to comply with the order, the
Magistrate may order imprisonment. Thus, again opportunity is given to
the husband. This latter opportunity is in fact provided not to determine
liability of the husband to maintain or to give the amount of maintenance
fixed by the Court but to determine the question whether there is any
sufficient cause on account of which he could not comply with the order.
Here the husband is not allowed to go back and start questioning the
order of maintenance, rather he has only to show as to why he could not
comply with it. Similar appears to be the position under the Act. Under
Sub-section (3) the Magistrate has to determine after hearing the parties
whether reliefs provided in that section should be given to the wife. Then
comes the stage of Sub-section (4). Here the husband cannot be allowed
to question the order passed under Sub-section (3) giving reliefs to the
wife; rather he can only show as to why he could not comply with the
order passed Sub-section (3). Thus, under Sub-section (3) and Sub-
section (4) different points are to be determined and the opportunity is
given to the husband on both the occasions for determining the
relevant point. 1
From the provisions of the Act of 1986 and the object with which
it was enacted by the Parliament, it is clear that a divorced Muslim
woman is entitled to get the maintenance only upto the period of Iddat
and after the period of Iddat the Muslim divorced woman is not entitled
to get the maintenance from her former husband as she has lost her right
in view of the provisions of Section 3(1)(a) of the Act of 1986. The Act
of 1986 has completely obliterated the right of maintenance to divorced
Muslim woman. 1 But this view has been overruled by the decision of the
Supreme Court which has held that the liability of Muslim husband to his
divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period. 2
The repeal without saving such right means that such woman had
never acquired such right and in the view of the matter, the said right
now cannot be enforced under Section 125 Cr.P.C. Even if an order
granting maintenance had been passed in favour of a Muslim divorced
woman prior to the coming into force of the Act of 1986 and has become
final or is pending in the revision before any Court or is being
challenged by the husband, even in those cases, the Muslim divorced
woman is not entitled to get the Maintenance as allowing the
maintenance in those cases will be in complete contravention of the
intention of the legislature and will amount to frustrate the very object of
Act for which it has been enacted. No exception has been made in
Section 7 of the Act of 1986, which means that neither the order passed
under Section 125 Cr.P.C. nor the liability already incurred earlier to the
coming into force of the Act, 1986 has been saved. The inevitable
conclusion of passing of the Act of 1986 is that not only right under
Section 125(1) but also the remedy under Section 125(3) Cr.P.C. are lost.
Section 7 of the Act of 1986 envisaged a complete replacement of right
and remedy under Section 125 Cr.P.C. 3
other reasons and thereafter when the society was not capable of
providing them full satisfaction and looking after their necessities, then
on great prophet injunction were revealed that in such cases best way to
provide protection is to marry such orphans girls upto maximum of four
with the rider and the condition that all must be treated alike equal and
justice must be done to all of them. Any failure in this respect of the
husband to give equal treatment or to provide equal justice or to provide
equal protection would be violative of the basic intention of object and
the purpose of protecting orphans which was kept in the tenant of Kuran
Sarif by the great prophet. 1
That being so Section 125 Criminal Procedure Code enacted by
the legislature meant for providing such protection in cases where after
the conducting marriage justice is not done to the weaker spouse and the
wife is left high and dry without maintenance on account of neglect or ill
treatment or any other reason whatever the case may be. 2
It is true that the explanation added to the proviso to Sub-section
(3) taken in itself alone, from the context of other clauses of this section,
would give an impression that second marriage per se simplicitor in itself
is sufficient to claim maintenance and nothing more is required to prove.
In that context it would certainly raise a serious question of
interpretation of the constitution and all of Article 25 and whether
Section 125 Criminal Procedure Code Sub-section (iii) the proviso and
the explanation attached to it by which a Muslim woman is entitled to
claim maintenance simply on the ground of second marriage of husband
would be inconsonance with or in violation of the above tenants
injunction and next of the Muslim personal law. However that is a matter
which would not decided in such a casual manner because at the moment
neither the full text of the Muslim law has been referred to or is available
nor it has been debated or there has been dialogues nor tiring process
started so far in any legal Court. 3
Right to property
In one case a contention was raised that in view of Section
3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act
the divorced woman is entitled to all the properties given to her
before, at the time or after the marriage by the husband or any
relatives of the husband or his friends, the properties admittedly given
by the respondent to the revision petitioner during the subsistence of
her marriage will come within the ambit of Clauses (d) of Sub-section
(1) of Section 3 of the Act and as such those properties standing in the
name of the revision petitioner cannot be taken into account while
considering the eligibility of the revision petitioner for reasonable and
fair provision from the respondent and therefore, the lower Court is in
absolute error in disallowing her claim for reasonable and fair
provision under Clauses (a) of Sub-section (1) of Section 3 of the Act,
is not sustainable. The properties referred to in Clauses (d) of Section
3(1) of the Act cannot be construed as properties in its widest sense,
as the revision petitioner wants in this case. The word ‘property’
occurring in Clauses (d) of Section 3(1) should be considered on a
strict and restricted sense than the wide amplitude given to the word
in common parlance. If the word ‘property’ in Section 3(1)(d) of the
Act is interpreted so widely so as to embrace the vast properties or the
entire properties acquired by the former husband in the name of his
divorced wife during the subsistence of the marriage, it will
jeopardise the very intentment of providing reasonable and fair
provision by the former husband to his divorced wife. From the
Quranic injunction and the provisions of Section 3(1) of the Act
referred to above, it is patent that the idea behind the former husband
providing reasonable and fair provision at the time of divorce to his
divorced wife is to protect her from destitution and vagrancy due to
the divorce. Therefore, by a reasonable, pragmatic and harmonious
interpretation of the provisions of the Clauses (a) and (d) of Sub-
section (1) of Section 3 of the Act, it is clear that Clauses (d) deals
with the properties given by the former husband to the divorced wife
during the subsistence of the marriage by way of gift or otherwise.
But Clauses (d) of Sub-section (1) of Section 3 does not take in the
entire or the major portion of the property acquired by the husband
during the subsistence of the marriage in the name of his wife due to
his own reasons for such acquisition without the interim to give the
property to the wife as her exclusive property. 1
Payment of mehr
The quintessence of mehar whether it is prompt or deferred is
clearly not a contemplated quantification of a sum of money in lieu of
maintenance upon divorce. Indeed, dower focuses on marital happiness
and is an incident of connubial joy. Divorce is farthest from the thought
of the bride and the bridegroom when mehar is promised. Moreover,
dower may be prompt and is payable during marriage and cannot,
therefore, be a recompense for divorce too distant and unpleasant for the
bride and bridegroom to envision on the nuptial bed. Maybe, somehow
the masculine obsession of jurisprudence linked up this promise or
payment as a consolidated equivalent of maintenance after divorce.
Maybe, some legislatures might have taken it in that light, but the law is
to be read as the law enacted. The language of Section 127(3)(b) appears
to suggest that payment of the sum and the divorce should be essentially
parts of the same transaction so as to make one the consideration for the
other. Such customary divorce on payment of a sum of money among the
1 Noor Saba Khatoon vs. Mohd. Quasim, AIR 1997 SC 3280: 1997(6)
SCC 233: 1997(5) Scale 248: 1997(7) JT 104: 1997(2) Ker.LT 363:
1997(2) BLJR 1633.
2 Noor Saba Khatoon vs. Mohd. Quasim, ibid.
3 Noor Saba Khatoon vs. Mohd. Quasim, ibid.
Muslim law—Period of maintenance 477
so-called lower castes are not uncommon. At any rate the payment of
money contemplated by Section 127(3)(b) should be so linked with the
divorce as to become payable only in the event of the divorce. Mehar as
understood in Mohammedan Law cannot, under any circumstances be
considered as consideration for divorce or a payment made in lieu of loss
of connubial relationship. Under Section 127(3)(b) of the Cr.P.C., an
order for maintenance may be cancelled if the Magistrate is satisfied that
the woman has been divorced by her husband and that she has received,
whether before or after the said order, the whole of the sum which, under
any customary or personal law applicable to the parties was payable on
such divorce. Even by harmonising payments under personal and
customary laws with the obligations under Sections 125 to 127 of the
Cr.P.C., the conclusion is clear that the liquidated sum paid at the time
of divorce must be a reasonable and not an illusory amount and will
release the quondam husband from the continuing liability, only if the
sum paid is realistically sufficient to maintain the ex-wife and salvage
her from destitution which is the anathema of the law. This perspective
of social justice alone does justice to the complex of provisions from
Section 125 to Section 127 of the Criminal Procedure Code. 1
Period of maintenance
The Magistrate observe that under Section 3(1)(a) the first
respondent was entitled to get reasonable and fair provision for
maintenance for the iddat period and for his period she is not entitled to
get maintenance for the child. This proposition is clearly illegal. What
has been mentioned under Section 3(1)(a) is the reasonable and fair
provision and maintenance for the iddat period. The right of the child to
get maintenance for a period of two years from the date of birth is an
independent right which cannot be affected by the claim of the mother
for any reasonable and fair provision for maintenance due to the mother
under Section 3(1)(a) of the Act. The liability of the father to maintain
his child for a period of two years. under Section 3(1)(b) of the Act is
independent of the provision to pay reasonable and fair provision for
maintenance of wife. The Magistrate was not justified in limiting the
maintenance for a period of 21 months instead of 24 months. The first
respondent-wife is in fact entitled to get Rs. 600/- more towards
this count. 2
1 Fuzlunbi vs. K. Khader Vali, AIR 1980 SC 1730: 1980 CrLJ 1249:
1980 CrLR (SC) 524: 1980 SCC (Cr) 916: 1980 CAR 246: 1980
BBCJ 77.
2 Abdul Sathar vs. Arifa Beevi, I (1991) DMC 275 Ker.
478 Law of Maintenance
Principles of law
The principle of law in regard to grant of maintenance to a
Muslim Law are as under:—
(i) A divorced Muslim woman is entitled to and can claim
maintenance only under the provision and in accordance with the
procedure provided under Section 3 and 4 of the Muslim Women
(Protection of Rights on Divorce) Act.
(ii) She is entitled to claim maintenance from her former husband
for and during the period of iddat and besides that she is also
entitled to claim dower amount agreed at the time of marriage and
other properties which were given to her by her relatives and
friends at the time of marriage or thereafter.
(iii) In case a divorced woman is not re-married and is not able to
maintain herself after the expiry of iddat, she may bring an action
claiming maintenance and she may be entitled to get maintenance
in accordance with the procedure provided under Section 4 of the
said Act.
(iv) After the enactment of the aforesaid Act a divorced woman is
not entitled to bring an action for the said remedy under Section
125 of the Code of Criminal Procedure.” 1
However a Constitution Bench of Supreme Court in a recent
decision, held 2 as under:
‘1. A Muslim husband is liable to make reasonably and fair
provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period must be made by the
husband within the iddat period in terms of Section 3(1)(a) of the
Act.
2. Liability of Muslim husband to his divorced wife arising under
Section 3(1)(a) of the Act to pay maintenance is not confined to
iddat period.
3. A divorced Muslim woman who has not remarried and who is
not able to maintain herself after iddat period can proceed as
provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they
inherit on her death according to Muslim law from such divorced
woman including her children and parents. If any of the relatives
being unable to pay maintenance, the Magistrate may direct the
State Wakf Board established under the Act to pay such
maintenance.
Procedure of talaq
The intention of the Legislature being that persons living as
husband and wife may not play fraud on the legislation or the Socialist
scheme of equitable distribution of land by pretending separation among
themselves as wife and husband to deprive the State of acquiring the
essential surplus land with them and mar the social objects of the
Legislature provided that husband and wife, not necessarily breaking
their ties of marriage by decree of annulment of marriage or divorce, yet
for reasons, living separately as separated wife and husband and that the
separation is the result of not their own act of volition but is resultant
from the decree of the Court granting judicial separation on the ground
of law such judicially separated wife or husband though their marriage
ties may continue and survive may get the benefit of expression of the
judicially separated wife or husband and such a wife or husband who has
been judicially separated is not to be considered to be the member of the
family of either for the purpose of determination of ceiling area of the
tenure-holder or for declaration of surplus land. The intention of the
framers of law appears to be that the judicially separated wife’s property
may not be subjected to any adverse effect by being clubbed with that of
her husband and similarly the husband in such a case where there has
been judicial separation under the decree of the Court may not be
deprived of his holding merely by the clubbing of the wife’s holding
with his holding and on the basis thereof his or his wife’s holding being
declared as surplus. When that is the intention then a question arises
whether it would have been the intention of the Legislature to deprive a
divorced woman of her holdings or to make her holding subject matter of
its being clubbed and being declared as the part of surplus land of her
husband, the tenure-holder and thereby she herself being deprived of her
holding of property. 1
The plight of a divorced woman can be realised and has been
realised by learned Judge of this Court. Marriage is a status which
creates vested rights and interest of cohabitation, succession and
maintenance. It brings a bloom to the life. The divorce brings a plight of
vagaries of life and upheaval in the life of a woman at times in the life of
man. Under Hindu Law the concept of divorce had not been known till
before the introduction of Hindu Marriage Act and it was for the first
time the concept of divorce stepped in. Howsoever strained relation
between husband and wife would have been it was and has been a social
and legal obligation of the husband under the law known as Hindu Law
to maintaining his wife all through his and her life. The introduction of
Hindu Marriage Act introduced concept of divorce and a divorced
woman or a judicially separated woman had been declared entitled to
claim maintenance from her husband vide Sections 24 an 25 of the Hindu
Marriage Act uptill the time she does not remarry or does not become
subject to disqualification under Sub-section 3 of Section 25 of Hindu
Marriage Act. Under Criminal Procedure Code as well it has been
provided that a divorced woman would be entitled to claim maintenance
from her husband as per Explanation (b) to Section 125 Cr.P.C. 2
Under Muslim Law the plight of a Muslim woman, divorced by
her husband is more pathetic particularly the weak one. As the state of
affairs in India under Muslim Law is claimed to exist and operate, it is
the husband who has got a free hand to divorce his wife as and when he
desires and even orally by reciting Talaq thrice or by reciting three Talaq
in one sentence. Whether that law is in consonance with the Constitution
or spirit of the Constitution. The poor Muslim woman has been held to
be entitled to maintenance for a limited period of three months and then
is left to the vagaries of fate after the expiry of period of three months
unless she succumbs to the circumstances of re-marrying someone, as a
Proof of divorce
In Mulla’s Book on Principles of Mohammedan Law 2, it is
mentioned that for oral Talak if the words are expressed or understood as
implying divorce, then it becomes effective for Talak. It is also
mentioned, that it is not necessary that the Talak should be pronounced
in the presence of the wife or even addressed to her.
The learned Writer has also expressed 3 that the ‘Talak
pronounced in the absence of the wife takes effect, though not
communicated to her, but for the purpose of Dower it is necessary that it
should come to her knowledge and her alimony may continue till she is
informed about the divorce.’
relationship between the parties. It is, however, not legal and valid or is
not otherwise proved, the statement of the husband should itself be taken
as a declaration of divorce. 1
Pleading in course of proceeding or any statement made in the
witness-box or in any application is for the purpose of making out a case
by parties, and evidence is led for supporting the case by parties, and
evidence is led for supporting the case already pleaded. The Forum of
Judicial proceedings cannot be used for declaring existence or cessation
of legal relationship between the parties and, therefore, mere contention
in the written statement or in any application or in plaint by itself cannot
be accepted to be either an acknowledgement of divorce already given
specially even without deciding upon the validity the legality of the
earlier divorce. It can never be said to mean a fresh declaration of
divorce from the date of such assertion being made in the proceedings or
even from the date when it is stated in the proceedings. The Court
proceedings should be confined to the assertion of facts by parties and to
the proof of facts so asserted or alleged and not for any other purpose
specially for acknowledgement of declaration of divorce. It is, however,
an altogether different thing if the parties settle their disputes and the
settlement is recorded and decree on terms passed. The rights and
interests of the parties cannot be jeopardised by a unilateral statement
made during the course of proceedings by the other party either orally or
in writing. 2
Similar view has been expressed as under:
‘Written statement is a pleading. Pleading is one thing and proof
is another. Pleading is formal allegations by the parties of their
respective claims and defences to provide notice of what is to be
expected at trial. Proof is establishment of a fact by evidence or
matter before the Court or legal Tribunal . Where the parties are
in dispute as regards a material fact, in averment in the pleading
does not constitute evidence, as what is stated in the pleading is
recital of past even which is required to be proved. Under the
Evidence Act, if a material fact pleaded is not proved, it follows
that the Court considers or believes that the fact does not exist.
Therefore averment in the pleading cannot be used in favour of
the maker. This being the position, statement made by the
husband in his pleading or deposition that he has divorced his
wife is recital of past event, and, if talak pleaded is not proved
such statement shall be of no consequence. In that view of matter,
if statement made by the husband that he had divorced his wife in
his pleading or deposition is considered as an acknowledgement
Refusal co-habit
The husband is bound to maintain his wife so long she is faithful
to him and obeys his reasonable orders. 2 The husband has a duty to
maintain his wife. In no uncertain terms the Article says that the husband
is bound to maintain his wife so long she is faithful to him and obeys his
reasonable orders. The husband can refuse to maintain the wife is if she
is disobedient. This, however, is also conditional in that refusal on the
part of the wife must be unjustified and that she does not leave the
husband’s house on account of his cruelty. Thus, just as the wife does
not have an absolute right to maintenance, the husband also does not
have a licence to treat the wife with cruelty. This is clarified by Article
278 which deals with order of maintenance. This Article categorically
provides that if the husband neglects or refuses to maintain the wife
without any lawful cause, the wife may sue for maintenance. The only
limit is that wife cannot sue for past maintenance unless there is an
agreement to the contrary. 3
In one case the wife had specifically pleaded allegations of
cruelty and she had also specifically pleaded the allegations of
unchastity which had been made against her. She had also categorically
stated that on one occasion the mother of defendant almost split the ear
lobe of the wife whilst trying to remove one of the ear rings from her
ear. It was held that although all these facts are sought to be denied, yet
this stage it is the word of the plaintiff against the word of
the defendant. 4
From the preamble it is very clear that the Act applies to Muslim
women who have been divorced or have obtained divorce from their
husbands. From a reading of the Act it is not possible to discern that it
has only prospective operation. 1
As the Act declares duties and liabilities of a Muslim husband
with a view to give adequate protection to the divorced wife and as
preamble of the Act itself states that it is applicable to every divorced
Muslim wife, contention that it has no retrospective operation is not
tenable. There is no logic in holding that the Act for the first time
introduced a burden on the Muslim husband to provide for reasonable
and fair provision and maintenance to the divorced wife. The Act should
be considered only as retrospective. Contention that the Act is only
prospective and that the respondent having been divorced prior to the
commencement of the Act is not entitled to invoke the provisions of the
Act is without any merit. 2
The question of retrospective application was considered by
Supreme Court in a recent decision 3 but no finding in this regard was
given in the operative portion of the judgement. But from the tenor and
the ultimate finding which holds a husband liable to make provision for
maintenance of wife till she is remarried, with in the period of iddat
while holding the liability of husband shall not be limited till the period
of iddat only, it appears that the existing orders are not obliterated
merely by the enactment of Act of 1986.
Return of gifts
There was no tangible evidence on record to establish that the
amount of Rs. 50,000/- is given by the father of the wife as a gift so as to
entitle her to get back the amount under Section 3(1)(d) of the Act. If it
is a loan advanced by the father of the wife, he may have his civil
remedy to recover the amount. It was held that by no stretch of
imagination the amount of Rs. 50,000/- alleged to have been paid by the
father of the wife can be construed as a gift by her father to the husband
coming within the ambit of Section 3(1)(d) of the Act. Therefore, the
order passed by the learned Magistrate directing the husband to pay
Rs. 50,000/- to the respondent under Section 3(1)(d) of the Act was held
to be absolutely illegal. 4
Right of child
The children are entitled to maintenance for period till they attain
majority or are able to maintain themselves. The said right of children is
not restricted, affected or controlled by Section 3(1)(b) of the Muslim
Woman Protection of Rights on Divorce Act. 1
There is provision which debars the Muslim woman, who is
maintaining her child or children born to her before or after her divorce,
to claim maintenance from her former husband and, therefore, Section
3(b) of the Act cannot be said to create any bar for the Muslim woman,
who is divorced, to claim maintenance for her child or children born to
her before or after her divorce from her former husband. The legislative
intention of Section 3(b) appears to be that irrespective of any other law
and the divorce of a Muslim woman if she is maintaining the children
born to her before or after her divorce she is entitled to claim
maintenance from her former husband for a period of two years from the
respective date of birth of such children. It does not take away the right
of the minor child to claim maintenance from his or her father even after
his or her mother has been divorced. The right which is conferred on the
minor child of claiming maintenance under Section 125 of the Criminal
Procedure Code cannot be said to have been taken away by the provision
contained in Section 3(b) of the Act of 1986. The provisions of Section
125 of the Criminal Procedure Code which provide for maintenance of
both legitimate and illegitimate child are neither diluted nor made
redundant by Section 3(b) of the Act of 1986. Harmonious construction
of Section 125 of the Code of Criminal Procedure and Section 3(b) of the
Act of 1986 leads to an irresistible conclusion that the Muslim minor
child or children have to be maintained by their parents. If the conditions
requisite under Section 125 are fulfilled. While Section 3(b) entitles the
divorced Muslim woman to claim maintenance for the children born to
her before or after the divorce from her former husband for a period of
two years from the respective dates of birth of the children, the said
section does not take away the right of the minor Muslim child or
children to claim maintenance from his or her father even if the mother
has been divorced and has attained the status of divorced Muslim
woman. 2
The welfare of the child is a paramount consideration, he or she
may be of any class, caste or creed. How can the welfare of the child be
looked into if such child is not properly maintained ? If the child is born
from the wedlock or otherwise because Section 125 of the Criminal
herself maintains the children born to her from the husband before or
after her divorce, a reasonable and fair provision by way of a
maintenance allowance to her has to be made and paid accordingly by
her former husband for a period of two years from the respective dates of
birth of such children. It is under Section 3 of the Act. 1
The child itself would have no locus-standi to apply. The amount
for the purpose of maintenance of the child would only be entitled to be
claimed by the divorced wife as such and in the mother’s own right.
Therefore, while under the provisions of Section 125 Code of Criminal
Procedure, it will be the right of the minor child herself to claim
maintenance against her father under Section 3 of the Muslim Women
Act as such the right to claim an amount of maintenance allowance as a
fair provision, from the husband is what is given to the divorced wife,
for the purpose of the maintenance of the child. That is, the right to
claim maintenance stands vested, under the Act of 1986 in the divorced
wife and not in the child itself, for whose sake the amount of
maintenance is claimed. That distinction is much too transparent to be
confused for advancing a contention that with the attainment of the age
of two years by the opponent child, her right granted under the
provisions of Section 125(1)(b) of the Code of Criminal Procedure to
claim maintenance from her father, cannot to said to have come to be
extinguished. It remains as much intact as it was, at the date of passing
of the order under Section 125(1)(b) as it would be at the date of her
attainment of full two years of age. The right would of course of
enforceable subject only to the duration which is provided under Section
125 of the Code of Criminal Procedure itself and cannot be sought to be
curbed on the strength of the provisions of the Muslim Women Act 1986.
therefore, it is no open to the petitioner-husband to contend that he
stands free of all liability and obligation under the order passed against
him and in favour of the child, under Section 125 of Code of Criminal
Procedure the moment the minor child, the daughter attains the age of
two years. 2
As far as the contention that under the Mohammedan Law, minor
children are entitled for maintenance only for a period of two years and
not thereafter is concerned the said question cannot be raised by the
petitioner who has no interest in the lis. If at all such question is to be
raised, the same could have been raised by the husband. The husband
CrLJ 875: AIR 1985 SC 945: 1985 CrLR (SC) 327: 1985 SCC (Cr)
245: 1985 CAR 161: 1985 Jab LJ 489.
1 Wajed Khan vs. Mohasinabi, II (2001) DMC 116 Bombay.
2 Riswana Begum vs. MLV. Motiullah, II (1989) DMC 138 Orissa.
496 Law of Maintenance
the provisions of the Act. The applications filed by the Muslim wives, of
the Act under Section 125, Criminal Procedure Code the moment Talaq
is pronounced and her status changes she becomes of divorced woman,
the provisions of the Act would be applicable and the application would
not be prosecutable under Section 125, Criminal Procedure Code unless
both parties exercise their options under Section 5 of the Act and declare
in writing that they would prefer to be governed by the provisions of
Section 125 to 128 of the Criminal Procedure Code. 1
But a Muslim husband is liable to make reasonably and fair
provision for the future of the divorced wife which obviously includes
her maintenance as well. Such a reasonable and fair provision extending
beyond the iddat period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act. 2 And the liability of
Muslim husband to his divorced wife arising under Section 3(1)(a) of the
Act to pay maintenance is not confined to iddat period. 3
life than the taking of a mistress by the husband. Be that as it may, can it
be said that a second wife would be more tolerant and sympathetic than a
mistress so as to persuade the wife to rejoin her husband and lead life
with him and his second wife in one and the same house. It will
undoubtedly lead to a strange situation if it were to be held that a wife
will be entitled to refuse to live with her husband if he has taken a
mistress but she cannot refuse likewise if he has married a second wife.
The Explanation has to be construed from the point of view of the injury
to the matrimonial rights of the wife and not with reference to the
husband’s right to marry again. The Explanation has, therefore, to be
seen in its full perspective and not disjunctively Otherwise it will lead to
discriminatory treatment between wives whose husbands have lawfully
married again and wives whose husbands have taken mistresses. 1
The Legislature being anxious that for the sake of maintenance,
the dependents should not resort to begging, stealing or cheating, etc.,
the liability to provide maintenance for children has been fixed on the
basis of the paternity of the father and the minority of the child and in
the case of major children on the basis of their physical handicap or
mental abnormality without reference to factors of legitimacy or
illegitimacy of the children and their being married or not. In the case of
wives, whether their ties of marriage subsist or not, the anxiety of the
Legislature is that they should not only not resort to begging, stealing or
cheating, etc., but they should also not feel compelled, for the sake of
maintaining themselves, to resort to an adulterous life or in the case of
divorced women, to resort to remarriage, if they have sentimental
attachment to their earlier marriage and feel morally bound to observe
their vows of fidelity to the persons whom they had married. This
position emerges when we take an overall view of sub-secs. (1), (4) and
(5). While sub-s. (4) provides that a wife shall not be entitled to receive
maintenance from her husband if she is living in adultery or if without
sufficient reason she refuses to live with her husband or if she lives
separately by mutual consent. sub-s. (5) provides that an order of
maintenance already passed can be cancelled for any of the abovesaid
reasons. Thus by reason of sub-ss. (4) and (5) a husband can avoid his
liability to pay maintenance if his wife is living in adultery.
Correspondingly a right has been conferred on the wife under the
Explanation to live separately and claim maintenance from the husband
if he breaks his vows of fidelity and marries another woman or takes a
1 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR
1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale
672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr
LJ 980
Muslim law—Second marriage by husband 499
1 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR
1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale
672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr
LJ 980
2 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR
1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale
672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr
LJ 980
500 Law of Maintenance
of the injury to the matrimonial rights of the wife and not with reference
to the husband’s right to marry again. The Explanation has, therefore, to
be seen in its full perspective and not disjunctively. Otherwise it will
lead to discriminatory treatment between wives whose husbands have
lawfully married again and wives whose husbands have taken mistresses.
Approaching the matter from this angle, we need not resort to a
comparison of Muslim wives with Hindu wives or Christian wives but
can restrict the comparison to Muslim wives themselves who stand
affected under one or the other of the two contingencies envisaged in the
Explanation and notice the discrimination. A right has been conferred on
the wife under the Explanation to live separately and claim maintenance
from the husband if he breaks his vows of fidelity and marries another
woman or takes a mistress. As already stated it matters not whether the
woman chosen by the husband to replace the wife is a legally married
wife or a mistress. Therefore, the respondent’s contention that his taking
another wife will not entitle the appellant to claim separate residence and
maintenance cannot be sustained. The Explanation is of uniform
application to all wives including Muslim wives whose husbands have
either married another wife or taken a mistress. 1
Territorial jurisdiction
To constitute “residence” it is not necessary that the divorced
woman should have her own residence within the territorial limits of the
Court. So long as there is animus manendi or an intention to stay for an
indefinite period at a place, that place should be treated as the
“residence”. In this case, according to the divorced woman, she has taken
shelter under her maternal relatives at the Nadapuram and she intends to
reside there permanently, unlike a casual stay or a flying visit or a mere
casual residence with no intention of remaining there. In order to
constitute “residence”, the intention of the person is of utmost
importance. If the intention is to make the place that persons permanent
abode or residence, then it will constitute “residence” as contemplated by
the 1986 Act. The question as to whether the divorced woman has chosen
1 Avaran Koya vs. Mariyam, 1994 (1) DMC 205 (DB) Ker
502 Law of Maintenance
for a long time. Since there is a provision enabling the husband to give
talaq whose wife is living separately for a long time, the inference is that
court cannot insist this condition of the purity, on the date of talaq. 1
Chapter 12
Practice & Procedure
SYNOPSIS
Introduction....................................504 Exercise of writ jurisdiction .......... 542
Abuse of process ............................504 Ex-parte order ............................... 543
Adjustment of orders ......................505 Finding of civil court ..................... 543
Agreement or compromise .............505 Forum of Appeal ............................ 543
Alternate forums.............................506 Hearing the parties ........................ 544
Amendment of law ..........................511 Ingredients of desertion ................. 545
Amendment of petition ...................512 Inherent powers ............................. 546
Appeal ............................................513 Jurisdiction of criminal Courts ..... 546
Appeal under Hindu Marriage Legal Aid ....................................... 547
Act ..................................................514 Lien on property ............................ 547
Application of Civil Procedure Limitation for minors..................... 547
Code ...............................................520 Maintenance by agreement............ 548
Appreciation of affidavits ...............520 Modification of order .................... 548
Appreciation of evidence................521 Necessary parties .......................... 550
Burden of proof ..............................521 Neglect & refusal........................... 550
Cancellation of order .....................522 Object of summary remedy ............ 551
Challenge to consent decree ..........522 Omission to reply the notice .......... 552
Change in circumstances ...............522 Pleading......................................... 553
Condonation of delay .....................523 Pleading and libel ......................... 554
Consent order.................................523 Pleadings and proof ...................... 554
Counter claim.................................524 Precedent ....................................... 555
Creation of charge .........................524 Presumption of litigation ............... 555
Cross Examination .........................525 Presumption of marriage............... 555
Date from which amount to be Proof of marriage .......................... 556
awarded .........................................525 Proof of no income ........................ 560
Delay & laches...............................529 Proper witness ............................... 560
Determination of paternity .............530 Quashing ....................................... 561
Directions for blood test ................533 Relief in void marriage .................. 562
Dismissal in default........................537 Remedy of suit ............................... 562
Divorced wife .................................538 Resjudicata .................................... 563
Double payment .............................538 Revision ......................................... 565
Efforts for re-union ........................539 Revision & reconciliation .............. 566
Enhancement ..................................539 Revisional jurisdiction ................... 567
Ex parte order ................................539 Settlement ...................................... 568
504 Law of Maintenance
Introduction
In addition to the substantive laws, the procedures devised to
impart justice is also of much importance. The courts frequently make
various interpretations in regard to different procedural laws and also
adopts certain practices to ensure that the substantive justice is done to
the parties. This chapter deals with such decisions of the courts which
lay down the procedures in the matter of seeking the maintenance or
defending the same.
Abuse of process
A party may have various alternative remedies if they are pursued
simultaneously but it cannot be said that by itself, the said action would
amount to abuse of the process of the court. It is necessary to note at this
stage that the scope of proceedings under Section 24 of the Hindu
Marriage Act is entirely different from the scope of proceedings under
Section 125 of the Code. Therefore it is not possible to agree with the
broad submission of that once the wife had applied in the court for
interim alimony under Section 24 of the said Act, she could not have
filed proceedings under Section 125 of the Code. 1
In one case it was held that the petitioner/husband appeared to
have utter disregard for the orders passed by the Court. It is also quite
evident from the multiplicity of the proceedings to which he had resorted
to, that by hook or crook, he wants to avoid making payment of
maintenance to his wife and daughter. The Session Judge, in all his three
judgements, had given a graphic account of all the events and had
narrated the chronology of event so also, the abuse of the process of law,
to which the petitioner has resorted to. It was found that the prayer made
by the petitioner in the criminal application for custody of his daughter,
was never made in the lower Court. This prayer was made for the first
time in the High Court. Considering the callous nature of the petitioner,
his utter disregard to comply with the orders passed by the Courts, his
hide and seek with the orders, his reluctance to comply with them, it was
held that the possibility cannot be ruled out that this prayer has come for
the first time, only to avoid the payment of maintenance to the daughter.
It was also held that it did not appear to have been made because of any
fatherly love for the child. In these circumstances the Writ Petition
alongwith Criminal Application were both dismissed the cost of
Rs. 10,000/- (Rupees ten thousand). The cost was directed to be paid by
the petitioner to his wife and daughter, within two months from today.
The husband/father was also directed to pay the entire permissible
amount of arrears of maintenance within two months from today and
thereafter, to pay the maintenance amount regularly to his wife
and daughter. 1
Adjustment of orders
The amount of maintenance payable by the husband under Section
125 Cr.P.C. is always subject to adjustment in the amount of
maintenance awarded by the Civil Court either finally or by way of
maintenance pendente lite and therefore, it was directed that the amount
of Rs. 300/- per month which the applicant/husband was paying to the
wife under the orders of the Criminal Court shall be adjusted in the
maintenance awarded to the wife by the Civil Court in the proceedings
under Section 24 C.P.C. 2
Agreement or compromise
When the statutory obligation is husband/father to maintain his
wife and minor son who are unable to maintain themselves he cannot be
permitted to contract out of such an obligation. If he is allowed to do so,
it would certainly defeat a legal right recognized by the Court under
Section 125 of the Criminal Procedure Code. The agreement propounded
by him cannot annihilate the statutory right of claiming maintenance
under Section 125 Criminal Procedure Code. The agreement is certainly
opposed to public policy. Obviously the Court cannot enforce in illegal
agreement. A waiver in derogation of a statutory right cannot be
recognized by the Court as it affects Public Policy and as it is against the
very statutory obligation imposed on a husband to maintain his wife and
children who are unable to maintain themselves. 3
An order for maintenance made against a person would operate
until it is vacated or altered in terms of the provisions of the Code itself.
Section 125(4) provides that no wife shall be entitled to receive an
allowance from her husband under the 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. Sub-section (5) enables
the Magistrate to cancel the order of maintenance on proof that any wife
in whose favour an order has been made is living in adultery or that
without sufficient reason she refuses to live with her husband. Section
127 provides for certain contingencies whereby the Court can cancel the
order of maintenance. As the original order of maintenance has not been
modified or cancelled by a higher Court or is varied or vacated in terms
of Section 125 (4) or (5) of Section 127, its validity cannot be questioned
on the strength of the agreement; entered into between the petitioner and
the first respondent. 1
Alternate forums
Merely because of the order of maintenance granted by the
Magistrate in favour of the second defendant, plaintiff’s suit for
declaration cannot be dismissed. The order passed in the application filed
under Section 125 Criminal Procedure Code is really a summary order
which does not finally determine the rights of the parties as the order
was made in a proceedings under the Code of Criminal Procedure which
has been enacted to provide a summary remedy for providing
maintenance and for preventing vagrancy. The decision of the Criminal
Court granting maintenance or refusing to grant maintenance cannot
certainly operate as decisive in any civil proceeding between the parties
for determining the issues involved in the civil suit. In such a position
the civil Court has to decide it on the evidence before it uninfluenced by
the decision in the maintenance case. 2
As the proceedings under Section 125 Criminal Procedure Code
are of a summary nature and are intended to enable destitute wives and
children, the latter whether they are legitimate or illegitimate, to get
maintenance in a speedy manner the decision of the Magistrate cannot be
considered as the sole basis to the throw out a properly instituted civil
suit by the aggrieved party to the maintenance application. 3
The scope of Section 125, Criminal Procedure Code as well as
Section 24 of the Hindu Marriage Act stand on different footing. It is
true that the maintenance granted under the Hindu Marriage Act can be
adjusted out of the amount granted under Section 125, Criminal
Procedure Code. When the wife is granted interim alimony both under
Section 24 of the Hindu Marriage Act and under Section 125, Criminal
Procedure Code, in that event, the maintenance amount granted under
Section 125, Criminal Procedure Code is to be adjusted again the amount
Amendment of law
In the State of M.P. the provision of section 125 of Criminal
Procedure Code, 1973 was amended and the question whether the
benefit of amendment should be given to the pending applications, it was
answered in affirmative.
If the new law speaks a language which expressly or by clear
intendment, takes in even pending matters the Court of trial as well as
the Court of Appeal must have regard to an intention so expressed and
the Court of Appeal may give effect to such a law even after the
judgment of first instance. The distinction between laws affecting
procedure and those affecting vested right does not matter when the
Court is invited by law to take away from a successful plaintiff, what he
obtained under a judgment. In this case both the Court below after the
amendment gave the effect and directed to pay the amount of Rs. 1,000/-
as a maintenance. 1
In the light of the Statement of Object and Reasons the
amendment should be applicable on the pending proceedings and in the
case where the orders are passed after 30 th May, 1998 the Magistrate has
powers to enhance the amount of maintenance from Rs. 500/- upto
Rs. 3,000/-. The language used in the Statement of Object and Reasons
clearly intends that this amendments is applicable on the pending
proceedings. The reason, since the existing amount of maintenance
allowance has become insufficient in the present day circumstances and
the amendment further says that in view of the above it has been decided
to amend Section 125 of the Code of Criminal Procedure, 1973.
Therefore, from the plain reading of Statement of Object and Reasons it
is clear that intention of the legislature is to consider the present day
circumstances in which the amount of maintenance allowance of
Rs. 500/- has become insufficient and to prove benefit to the destitutes
and when the Legislature wants to take into consideration the present day
circumstances, it would clearly mean that the amendment shall be
applicable though prospectively with effect from 30 th May, 1998 when it
was first published in the Madhya Pradesh Gazette (Extraordinary) but
would amount to be applicable on the present day pending proceedings.
The intention of the Madhya Pradesh Legislature is very clear to provide
benefit to the members of the weaker section of the society like wife,
children or the old parents who are not having any source of income and
are unable to maintain themselves. Having regard to this social object the
amended provisions have to be given a liberal construction to fulfil and
achieve this intention of the Legislature, because dominant purpose
behind the benevolent provisions is that the wife, child and parents
should not be left in helpless state of distress, destination and starvation.
Therefore, looking to the intention spelt out by the Statement of Object
and Reasons, this Court is of the view that the amendment is applicable
to the pending proceedings and the Magistrate have power to enhance the
amount of maintenance in the cases in which the orders are passed after
30 th May, 1998. 2
Amendment of petition
The provisions of Section 125 to 128 of the Code of Criminal
Procedure constitute complete Code in itself. These provisions deal with
adjudication as regards the liability to pay maintenance to the neglected
wife and child, etc., the execution of the order and the mode of its
Appeal
A bare reading of sub-Section (1) of Section 19 of the Family
Court Act, 1984 shows that no appeal lies against an interlocutory order
passed by a Family Court. Therefore when the interim order had been
passed for monthly maintenance till the final decision of the appeal, the
appeal was therefore, held to be liable to be dismissed on this
ground itself. 3
Section 19 of the Family Courts Act has undergone change by
virtue of the Family Courts (Amendment) Act, 1991 (Central Act No. 59
of 1991) and the said amendment has come into force on 28.12.1991. But
the said amendment does not in any way alter the sub-Section (1) of
Section 19 of the said Act. The said sub-Section (1) while providing that
1 Sneh Lata vs. Ajay Kumar Khanna, II (1999) DMC 451 Delhi.
2 Sneh Lata vs. Ajay Kumar Khanna, ibid.
3 Madulal vs. Sarojini Devi, II (1992) DMC 400 Raj.
514 Law of Maintenance
contain any provisions with regard to appeals against the orders made
under the Act. 1
It is idle to think that C.P.C. could have anticipated the advent of
the Act and made provisions therefore in its Section 104 or Order 43. If
we interpret the fiction introduced by Section 28 to mean also that it is
available for determining the right of appeal under C.P.C. or any other
law then the expression “all orders” deliberately employed by the
Legislature becomes meaningless for C.P.C. made no provision
therefore, no any other law or rules having the force of law have
provided for the same. The apart, when the right of appeal is not a mere
matter of procedure but a substantive right and has to be conferred by the
Statute, it is only natural and reasonable to expect the conferment of
right by the Act itself. It is unreasonable to think that the Legislature
which contemplated the idea of appeals against all decrees and orders
having regard to their particular importance had left the matter vague or
made it depend on the remote possibility of existence of such right in any
law which could not even anticipate the advent of this Act or the hitherto
unknown rights and remedies provided therein. It is thus manifest that if
the clause “may be appealed from under any law for the time being in
force” be interpreted to mean that the appealability depended upon the
right to be found in any other law for the time being in force, that must
necessarily lead to absurdity, inconsistency and repugnancy. It is absurd
and meaningless because it is vain to expect that a right of appeal for
orders passed under the specific provisions of any Special Act would be
found in the previous laws especially when the orders of the kind could
have no parallel in any previous law. It is repugnant and inconsistent
with the Act because whereas the Act provides for the appealability of
all orders, no known law including the Civil Procedure Code provides for
the appealability of the orders under the Act. The legislature had
definitely in mind that all orders are appealable except on subject of
costs. It cannot be said that this provision was made in vain. It becomes
otiose and would be rendered meaningless if the different interpretation
is put on the clause. 2
The language of Section 28, also makes it clear that decrees under
the Hindu Marriage Act are not decrees under the Code of Civil
Procedure, for it is stated therein that decrees under the Hindu Marriage
Act shall be enforced in like manner as decrees of a Court on its original
civil jurisdiction. The necessarily implies that though the decrees under
the Act are by statutory fiction treated for the purpose of enforcement as
decrees under the Code, they in fact are not such decrees. It was also not
the intention of the Legislature while giving a right of appeal under
Section 28 of the Hindu Marriage Act, to make that right indefinite and
more or less illusory by providing that the appeal under that section
would be competent only if a provision for that purpose exists in some
other law in force for the time being and not otherwise. Section 28
should be regarded as self-contained so far as appeals against decrees
and orders under the different provisions of the Hindu Marriage Act are
concerned and for this purpose it should not be necessary to look to other
laws. The words in Section 28 “and may be appealed from under any law
for the time being in force”, as I read that section, have reference only to
forum of appeal and the procedure to govern such appeals. 1
The provision in Section 21 which regulates the proceeding under
the Act is not material for deciding the question whether Section 28
itself gives a right of appeal or not. It also appears to us that the
legislature having given a right of appeal in Section 28 it also provided
in the latter part of that section for the procedure for filing the appeal
and the forum for the appeal as also the jurisdiction and power of the
Court in dealing with the appeal filed, by enacting the latter part of
Section 28 using the words “under any law for the time being in force”.
The forum for the appeal would be governed by the Bombay Civil Court
Act and if that law had to be brought into picture it could only be done
by making a general provision that the appeal would be under any law
for the time being in force and the procedure would also then be
governed by the Code of Civil Procedure. 2
Where a right of appeal is given by one law but the other matters
regarding the forum and the procedure or the nature and the extent of the
powers of the Court are to be determined with reference to the relevant
law for the time being in force, the appeal does not cease to be one under
the latter law because the appeal is still governed by that law. 3
All decrees and orders passed in a proceeding under the Hindu
Marriage Act are appealable by virtue of the provisions of Section 28
itself. The words “may be appealed from under any law for the time
being in force” have to be understood as meaning that although the right
1 P.C. Jairath vs. Amrit Jairath, AIR 1967 Pun 148 (DB): ILR (1967)
1 Pun 695.
2 Madhukar Trimbakrao Ghisad vs. Malti Madhuka Ghisad, AIR
1973 Bombay 141 (DB): 1973 Mah LJ 204: 75 Bom LR 311: ILR
(1973) Bombay 1003.
3 Gangadhar Rakhamaji vs. Manjulal Gangadhar, AIR 1960 Bom 42
Practice & Procedure—Appeal under Hindu Marriage Act 519
1 Suresh Prasad vs. Manorama Debi, AIR 1973 Patna 321 (DB).
2 Govind Ram vs. Lila Devi, AIR 1969 Raj 253.
3 Major Dal Chand Singh Pratap vs. Swaran Pratap, AIR 1965 All 46
(DB): 1964 All LJ 186: ILR (1964) 1 All 676.
520 Law of Maintenance
Appreciation of affidavits
If the question had to be decided on the basis of the affidavits,
the court was bound to consider the question as to whose version was
more acceptable. The court cannot, with folded hands as it were, adopt,
an attitude of utter helplessness in such situation. If this attitude is
adopted, the court will not be in a position to grant alimony or expenses
in many such proceedings. That is farthest from the intention of the
Parliament. There are very many matters, including matters of great
moment like writ petitions under Article 32 and 226, which are decided
on the basis of affidavit evidence. Parties to the proceedings necessarily
get relief, it circumstances justify it. The mere fact that one party has
chosen to contradict the averments in the affidavits of the other party
does not absolve the court from its solemn duty to weight the respective
contentions and come to a proper decision. 1
Appreciation of evidence
In revision evidence cannot be reassessed. But if in assessment of
evidence a legal mistake has been committed by the Trial Court, the
same can be corrected in revision. Cardinal principal is that in
matrimonial or maintenance cases solitary evidence of a spouses
attributing unchastity or adultery to the other party, should not be relied
upon because such spouse is extremely interested in the case. 2
Burden of proof
The person who seeks a remedy in a Court of law in bound to
prove the allegations and the burden of proof never shifts on the other
person. Until the initial burden cast on the person is discharged. 3
The degree of proof in a maintenance proceeding cannot be that
of strict liability. It was held that the very fact that the petitioner
husband was residing at Surat and when the respondent wife has been to
him after the child was born and the fact that the petitioner suspecting
her fidelity had brought her to her parents along with the child and left
her and thereby neglected and refused to maintain is enough to entitle the
respondent wife for maintenance. 4
In case where the party alleges a particular document to have
been obtained by fraud or coercion, the primary burden would be on the
said party to show by adducing such evidence that circumstances in
which the document was executed are suspicious or to lead such
evidence to show that the document was not acted upon at all. In this
case the document was executed and after execution of the said
document, the wife left the house of husband and started staying with her
brother. This document contains a clause that they are residing separately
1 Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
2 Dhanalakshmi vs. R. Prasanna Kumar, I (1990) DMC 36 SC.
3 K. Kamaldevi vs. Kammala Kumara Sekhar, I (1994) DMC 183 AP.
4 Rajendra Devidas Hirurkar vs. State of Maharashtra, I (2000) DMC
590 Bombay.
522 Law of Maintenance
by mutual consent. It was held that it shows that the document was
acted upon. 1
Cancellation of order
The legislative intent is manifest in the language used in Sub-
section 2 that the order needs to be cancelled or varied by the Magistrate,
if the Magistrate feels that the order of maintenance passed by him
should be cancelled or varied in view of the decision of the competent
civil court. Without such cancellation and variation, the order of
maintenance would not be rendered ineffective. The civil courts decision
must be brought to the knowledge of the Magistrate whether rendered
before or after the order and the Magistrate shall then consider the
question of cancellation or variation of the maintenance order. However,
a clear and categorical finding, if given by the competent Civil Court,
cannot be overlooked or ignored or disregarded by the Criminal Court. 2
Change in circumstances
Wife had filed the application on the changed circumstance that
husband has married again. When wife has gone out of her own accord,
she can also come back because husband has not thrown her out. By
second marriage husband has closed the door for the wife to come back.
Even if there would be no second marriage keeping a woman in the
house as concubine has the same effect. Creating circumstances which
would not be congenial to a wife to remain with her husband is a cruelty
and is also legal desertion even if husband has the desire to be with his
wife without change of circumstance. Thus, on proof of second marriage,
prior Civil Court decree when there was no second marriage or keeping a
concubine would not have any effect. 1
Proceeding under Section 125, Cr. P.C. is summary in nature. On
the materials Court is to come to the conclusion whether there is second
marriage. Basing on oral evidence and birth certificate of a female child
where petitioner has been recorded to be the father, trial Court has come
to the conclusion that petitioner has married again. No material had been
brought on record by petitioner that there is another person of the same
name in the village or that the registration has been made wrongly
otherwise. In such circumstance, it was held that the finding of trial
Court cannot be said to be unreasonable to be interfered with in a
revision. Hence, it was held to have been proved by the wife that
petitioner has married again. 2
Condonation of delay
Where a certificate of doctor was produced to explain the cause
of delay it was found that the certificate of doctor filed in support was
totally false one. It is apparent by only reading it. It does not mention as
to by which ailment and if the appellant was down then of what period. It
was held that the appellant had just procured the said certificate for the
sake of production. It has no sanctity. 3
Consent order
In proceedings under Section 488 where a petition of compromise
fixing the maintenance allowance is filed by both the parties, the proper
order to be passed by Magistrate in such a case ‘Petition of compromise
filed. Order in terms of compromise’ and not ‘case amicably settled.
Petition of compromise filed. Rule discharged.’ 4
When there is an order passed by the Court, may be on the basis
of consent of the parties, it was held that the learned Magistrate and the
Sessions Judge have misread facts and law and had improperly held that
since there was no order of the Court granting maintenance under
Section 125, no application for variance of the quantum of maintenance
under Section 127 is maintainable. 5
Counter claim
Where the wife was claiming maintenance from husband it was
held that the counter claim cannot be made by husband to seek divorce
from the wife. 1
The same are the grounds on which a Hindu husband or wife can
claim maintenance under Section 18 of the Hindu Adoptions &
Maintenance Act. In this case the husband as well as the wife were
accusing each other of desertion as well as cruelty. In a matrimonial
matter regarding the maintenance or divorce the conduct of the
respective party has to be looked into and, therefore, the proceedings for
maintenance and divorce cannot be said to be of different genus. They
arise out of the same common bond i.e. the marriage and, therefore,
unless otherwise restricted a counter-claim for divorce was held to be
maintainable under Order 8, Rule 6-A in proceeding for the grant
of maintenance. 2
Creation of charge
Justice West 3 has observed as under:
“If the heir sought to defraud her, he could not indeed, by any
device in the way of parting with the estate, or changing its form,
get rid of the liability which had come to him along with the
advantage derived from his survivorship; and the purchaser taking
from his with reason to suppose that the transaction was one
originating not in an honest desire to pay off debts, or satisfy
claims for which the estate was justly liable, and which it could
not otherwise well meet, but in a design to shuffle off a moral and
legal liability — would, as sharing in the proposed fraud, be
prevented from gaining by it. …….It was therefore immaterial
that the transferee had notice of the claim to maintenance.”
Relying on the above it was noticed that the Section 39 of
Transfer of Property Act amended in 1939 by Act 20/1939, where the
earlier wordings “transferred with the intention of defeating such right”
was amended. These wordings are found in the said section. Therefore, if
the purchaser is a transfer for consideration, it takes subject to the right,
if it is gratuitous transfer, it takes subject to the right whether he has
notice of it or not. The effect of the amendment is to make the widow to
prove the transfer made with the intention of defeating her rights. 4
1 Neelam Singh vs. Vijaya Narian Singh, AIR 1995 All 214.
2 Neelam Singh vs. Vijaya Narain Singh, ibid.
3 Lakshman vs. Satyabhama Bai, 1977 (2) Bombay 494.
4 Kanthamma vs. Nanjunda Devaru, 1999(1) HLR 213 Karnataka.
Practice & Procedure—Date from which amount to be awarded 525
Cross Examination
The petitioner got examined himself and challenged the statement
of the opposite party and her witness. He could also produce evidence of
his end to establish his version of the case in this regard. Since he did
not take any steps to contradict the opposite party or to establish his own
version, the evidence of the opposite party on the most vital point may
be accepted as it was practically ex parte. 1
11 Asraf Ali Molla vs. Mst. Manowara Khatoon Bibi, II (1986) DMC 99
Calcutta.
2 Charanjit Singh Grewal vs. Inderjit Kaur, I (1989) DMC 77 P&H.
3 Indira Gagele vs. Shaildendra Kumar Gagele, AIR 1992 MP 72:
1991 JLJ 179: 1991 MPLJ 832.
4 10th Edition, 1939 at page 73
5 Indira Gagele vs. Shaildendra Kumar Gagele, AIR 1992 MP 72:
1991 JLJ 179: 1991 MPLJ 832.
526 Law of Maintenance
proved it cannot be said that the Court has fixed maintenance allowance
from the date of application without giving appropriate reason. This
itself constitutes one of the reason for granting maintenance allowance
from the date of application. 1
In case the Court start to grant the maintenance which includes
temporary/interim maintenance from the date of the order then the
husband who is capable of managing delay in disposal of such an
application would be benefited. The delay in the disposal of the
application in general in the case is not because of any fault of the wife
but sometimes our adversary system itself is a substantial cause of the
delay in disposing of the application. Otherwise also irrespective of the
fact that the application has been filed for grant of maintenance by the
wife, the husband has pious obligation and duty to maintain his wife. 2
1 Kamal Kishore vs. State of Uttar Pradesh, I (2001) DMC 313 All.
2 Amankumar Latibhai Parekh vs. Pritiben Amankumar Parekh, II
(2000) DMC 433 Gujarat.
3 Seeso @ Bakhshish Kaur vs. Pakhar Singh Jhuti, I (1991) DMC
505 P&H.
530 Law of Maintenance
Determination of paternity
The basis of an application for maintenance of a child is the
paternity of the child irrespective of its legitimacy or illegitimacy. The
section by conferring jurisdiction on the Magistrate to make an
allowance for the maintenance of the child, by necessary implication,
confers power on him to decide the jurisdictional fact whether the child
is the illegitimate child of the respondent. It is the duty of the court,
before making the order, to find definitely, though in a summary manner,
the paternity of the child. Sub-section 6 of Section 488 of old Code was
held mandatory in form and in clear terms it prescribes the procedure to
be followed by the Magistrate. Under that sub-section, all evidence under
that chapter shall be taken in the presence of the husband or the father,
as the case may be, or, when his personal attendance is dispensed with,
in the presence of his pleader, and shall be recorded in the manner
prescribed in the case of summons-cases. The word “all” with which the
sub-section opens emphasizes the fact that no evidence shall be taken in
the absence of the father or his pleader. It was conceded that Sections
200 to 203 of the Code do not apply to an application under Section 488
of the Code. As the proceedings are of a civil nature, the Code does not
contemplate any preliminary enquiry. When the terms are clear, there is
no scope for drawing inspiration from other sections of the Code, or for
deviating from the procedure prescribed to fill up an alleged lacuna. It is
said that if no preliminary enquiry be held, even in a blackmailing action
notice will have to go to the respondent. There is nothing incongruous in
this position; for, if a suit is filed in a civil court for a decree for
maintenance by a child against the alleged putative father, summons will
go to him without any preliminary enquiry. It appears that notice to the
respondent is in the interest of both the applicant as well as the
respondent while it enables the respondent to be present when evidence
1 Satrunghna Adak vs. Sonali Adak Nee Tung. II (1993) DMC 263
Calcutta.
Practice & Procedure—Determination of paternity 531
1 Nand Lal Misra vs. Kanhaiya Lal Misra, AIR 1960 SC 882: 1960
CrLJ 1246: 1960(3) SCR 431: 1960 Ker LT (SC) 25: 1961 All WR
(HC) 53.
532 Law of Maintenance
1 Mathew vs. Annamma Mathew, 1994 (1) DMC 525 (DB) Ker.
2 (1951) 1 Mad LJ 580: AIR 1951 Mad 910 (1).
3 1906) ILR 33 Cal 927.
534 Law of Maintenance
That may be. But I am not in any event satisfied that if the parties
are unwilling to offer their blood for a test of this kind this Court
can force them to do so.”
The same view was taken by the Kerala High Court 1:—
“A special protection is given by the law to the status of
legitimacy in India. The law is very strict regarding the type of
the evidence which can be let in to rebut the presumption of
legitimacy of a child. Even proof that the mother committed
adultery with any number of men Will Dot of itself suffice for
proving the illegitimacy of the child. If she had access to her
husband during the time the child could have been begotten the
law will not countenance any attempt on the part of the husband
to prove that the child is not actually his. The presumption of law
of legitimacy of a child will not be lightly repelled. It will not be
allowed to be broken or shaken by a mere balance of probability.
The evidence of non access for the purpose of repelling it must be
strong, distinct, satisfactory and conclusive (See Morris v.
Davies. The standard of proof in this regard is similar to the
standard of proof of guilt in a criminal case. These rigours are
justified by considerations of public policy for there are a variety
of reasons why a child’s status is not to be trifled with. The
stigma of illegitimacy is very severe and we have not any of the
protective legislations as in England to protect illegitimate
children. No doubt, this may in some cases require a husband to
maintain children of whom he is probably not their father. But,
the legislature alone can change the rigour of the law and not the
court. The court cannot base a conclusion on evidence different
from that required by the law or decide on a balance of
probability which will be the result if blood test evidence is
accepted.
There is an aspect of the matter also. Before a blood test of a
person is ordered his consent is required. The reason is that this
test is a constraint on his personal liberty and cannot be carried
out without his consent. Whether even a legislature can compel a
blood test is doubtful, Here no consent is given by any of the
respondents. It is also doubtful whether a guardian ad litem can
give this consent. Therefore, in these circumstances, the learned
Munsiff was right in refusing the prayer for a blood test of the
appellant and respondents 2 and 3. The learned Judge is also
correct in holding that there was no illegality in refusing a blood
test. The maximum that can be done where a party refuses to have
a blood test is to draw an adverse inference (see in this
connection Subayya Gounder v. Bhoopala, 2 and the earlier
decision of the same court in Venkateswarlu v. Subbayya. 3 Such
1 Goutam Kundu vs. State of West Bengal, AIR 1993 SC 2295: 1993
CrLJ 3233: 1993 CrLR (SC) 487: 1993(2) Crimes 481: 1993(3) SCC
418.
Practice & Procedure—Dismissal in default 537
(3) There must be a strong prima facie case in that the husband
must establish non-access in order to dispel the presumption
arising under Section 112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have the
effect of branding a child as a bastard and the mother as an
unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
Once the marriage procedure and paternity of child was admitted,
it does not lie in the mouth of husband/father to contend that no valid
marriage came into existence as essential rites were not performed. 1
Dismissal in default
Delhi High Court 2 was of the view that an application for
maintenance, if it is dismissed for default of the appearance before
evidence is recorded, could be restored because the order of dismissal
was an administrative order and not a judicial order and the Magistrate
has power to set it aside. This case was subsequently considered by
Allahabad High Court, 3 and the Court had dissented from the view taken
by the Delhi High Court. It was held that an order passed under Section
125 Criminal Procedure Code cannot be deemed to be administrative
order. It is a judicial order because the revision lies against such final
order. Modification of the order can be made under the provisions of the
Criminal Procedure Code and for default in carving out the order of
maintenance the defaulter can even the sent to jail for the whole or any
part of each month’s allowance remaining unpaid after the execution of
the warrant. Therefore Allahabad High Court held 4 that an order of this
nature cannot be considered to be an administrative or executive order.
It is to be borne in mind that a petition filed under Section 125,
Cr.P.C. is not a complaint and the person who is arrayed as the opposite
party is not an accused. The proceedings under Section 125, Cr.P.C. is a
proceeding of a Civil nature in which the Magistrate can invoke the
inherent powers to recall his earlier order finally disposing a proceeding
of this nature provided sufficient grounds are shown. 5
1 Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, 1999 (7) SCC 675
2 Prema Jain vs. Sudhir Kumar, 1980 Crl.LJ 80.
3 Akhtari Begam vs. Ahmad Hussain, 1984 All Cr Cases (Summary
of Cases at page 85).
4 Pramod Kumar Mittal vs. Kanchan Devi, I (1988) DMC 159 All.
5 S.K. Alauddin @ Alai Khan vs. Khadiza Bibi @ Mst. Khodeja
Khatun, I (1992) DMC 268 Cal.
538 Law of Maintenance
Divorced wife
Normally divorced spouse will only be living separately and the
question whether it is by mutual consent or not does not arise. Obligation
to live with the husband and sufficient reason for refusing to live with
the husband will arise only during subsistence of the marriage. The bona
fides of the husband in the offer to maintain the divorced wife if she
comes and lives with him itself is not a matter to be considered even
though patently the male fides is clear from the fact that divorce is
ordered at his instance. After divorce the wife is not bound to discharge
marital obligation including her company and submission to conjugal
rights of the husband. The husband has equally no right to request her to
come and reside along with as a condition precedent to payment of
maintenance Marital rights and obligations are available only during the
subsistence of the marriage. There is no question of showing good
grounds for separate residence. 2
The provision to award maintenance by a summary procedure to a
divorced wife has been incorporated in the new code by way of public
policy in order to avoid vagrancy. The only disqualification provided in
the case of a divorced wife are remarriage and ability to maintain herself.
Evidently these two conditions are there because they are not
inconsistent with the public policy. She need not satisfy any other
condition to make herself eligible for maintenance and the husband
cannot impose any condition in order to avoid liability. To ask for the
company of a divorced wife and make it a condition precedent for the
liability for maintenance is opposed to the entire provisions. 3
Double payment
Double payment of maintenance is not intended by law. If any
money has been paid or deposited towards payment of maintenance in
the divorce petition, the same is liable to be adjusted in the payment of
maintenance ordered under Section 125 Criminal Procedure Code. 4
Enhancement
In view of the ever increasing trend in the prince index of the
essential commodities the maintenance allowance granted to the
applicant deserves to be enhanced to meet the demand of cost of living. 2
The pendency of a Section 482, Criminal Procedure Code,
application may not therefore, be a bar for the wife to file an application
for enhancement of the maintenance amount. 3
Keeping in view the disability of the wife, who is said to be a
hump lady and the ever increasing trend in the price index of the
essential commodities it was held that the maintenance allowance
granted to the applicant deserves to be enhanced to Rs. 500/- per month
which shall be payable to the applicant from the date of the order of the
Judicial Magistrate. 4
Judicial notice can be taken of rising prices with the result that
the cost of bare existence is regularly rising, rather mercurially. 5
Ex parte order
It is a cardinal rule of interpretation of statutes that ordinarily
words in a statute must be given their plain, ordinary and natural
made”, it cannot be set aside by the Magistrate under the second part of
the proviso since, according to this view, it is only an “order so made”
which can be set aside. An ex parte order cannot be regarded as void or
non est. There is no lack of jurisdiction to pass an ex parte order since it
is not service or process which confers jurisdiction on the Magistrate
over persons. Logical conclusion of the view taken in the decisions
referred to above would mean that the remedy under second part of the
proviso would be available only against proper and valid ex parte orders
and not defective or irregular or even illegal ex parte orders. This
conclusion would lead to absurdity. such a result would not have been in
the contemplation of the Legislature. Whether the ex parte order is
defective or not, it can be set aside on good cause being shown, provided
the application is made within three months from the date of the order. 1
It is also open to the party aggrieved by the order to invoke
revisional jurisdiction of the Court of Session or the High Court under
Ss. 397, 399 or 401 of the Code. Until the order made ex parte is
annulled or set aside by resorting to any of the methods recognised in
law, the order is binding on the parties and cannot be treated as non-set
or null and void on the ground that the satisfaction of the Magistrate was
not well founded error was committed by the Magistrate in strictly
conforming to the requirement of the first part of the proviso in
proceeding to determine ex parte. 2
A person against whom such an ex-parte order has been passed
has the right to file an application before the Magistrate to set aside the
ex-parte order, provided the application is filed within a period of three
months from the date of the order. Even if there is delay in filing the
application, it is open to him to invoke Section 5 of the Limitation Act.
At the same time, remedy of the person who suffers an ex-parte order is
not confined to filing an application to set aside the ex parte order before
the Magistrate concerned. It is open to him to challenge the order by way
of revision before the Revisional Court in terms of Section 397 of
the Code. 3
In one case the husband was afforded more than ample
opportunities for making the payment did not pay the maintenance
pendente lite allowed to the wife under Section 24 of the Act. The Judge
Family Court thereupon rightly struck off the defence of the appellant
who was respondent in the divorce petition. On top of this the husband
for reasons best known to him did not appear on 5.1.1997 when the case
was fixed for evidence of the wife and instead resorted to the stratagem
of filling an application through a brother seeking adjournment on a
ground that was transparently manufactured. It was held that his
application was rightly dismissed by the trial Judge. Assuming that the
appellant husband had a right of cross-examination by absenting himself
he chose not to exercise that right. As he was absent he was rightly
proceeded against ex parte by the trial Judge. As the evidence of wife
consisting of her sole statement was found by the trial Judge to be
worthy of implicit reliance he committed no error not to speak of a
grievous error by acting upon her statement on oath and allowing her ex
parte decree of divorce on the ground of cruelty. There was no
requirement under the law that there should always be some
corroboration and if the evidence of a solitary witness is found worthy of
implicit reliance as in the instant case that could always be acted upon. 1
Ex-parte order
The ex-parte order of maintenance has to be passed only on sound
principles of law and not on surmises and conjunctures and it should be a
reasoned order as giving reasons is one of the fundamentals of good
administration of justice. 1
Forum of Appeal
In view of Orissa Amendment provision of Section 115, Civil
Procedure Code there cannot be any doubt that if the valuation of the
proceeding/suit is more than rupees one lakh, an appeal or revision, as
the case may be, is to be filed in the High Court and in other cases,
revision is to be filed before the District Judge. Against a final decision
in any proceedings under the Hindu Marriage Act, appeal is to be filled
before the Court on the basis of pecuniary jurisdiction. In many cases, it
has been observed that where no valuation has been given in proceeding
under the Hindu Marriage Act, the forum relating to filing of appeal and,
consequently, revision would depend upon the notional valuation. 3
Similar view has been expressed by another High Court 4
Where an appeal is filed before the District Judge, evidently, a
second appeal is maintainable before the High Court subject of course, to
be limitations envisaged in Section 100, Civil Procedure Code. Since
from the aforesaid decisions, particularly that of the Orissa High Court,
it is apparent that an appeal can be filed before the District Judge if the
valuation is within the pecuniary limit envisaged, there is no rhyme or
reason why a revision cannot be filed before the District Judge against
interlocutory orders where the valuation is rupees one lakh or less. 5
Ingredients of desertion
The essential ingredients that constitute the matrimonial offences
of desertion take on different complexions, human nature and its
complexities being what they are. The simplest form of desertion,
defined by the commentators as actual desertion involves the fact of
separation (factum desirandi) and the intention to desert (animus
desirandi). This contemplates a situation where the spouses have
physically parted company, in the first instance and it is demonstrated
that there is an intention on the part of one of them to withdraw from the
company of the other. In order words, it is not merely a fact that the
parties are staying apart from each other for sometime, which may be
due to a variety of reasons, but the fact that this is accompanied by the
intention to put and end to the married state and to the marital
obligations. A slight variation of this situation could arise in case where
the offending spouse and, in fact, the guilty one is not the party who has
departed but the one who stays behind, such as the familiar situation
where, for reasons of sever mental and/or physical cruelty, it becomes
unsafe or impossible for the wife to continue to live with her husband
and she is forced to leave. Undoubtedly, in such a situation, it would not
be open for the husband to contend that the wife has been guilty of
desertion. There also arise the restricted category of cases where Courts
have held that wilful neglect of an extreme type could be construed as
desertion, a typical situation being one where the spouses, though
residing under the same roof, one of them has nothing to do with the
other and virtually puts an end to the marital status, though neither of
them have physically moved out of the premises. 1
Desertion, as pleaded or alleged, may assume one or more of the
aforesaid complexions and it is, therefore, essential for the Court to
examine the material on the basis of which the charge is sought to be
established. It is equally necessary to guard against certain familiar
situations to which there exists a total defence, for instance, where it is
alleged that the wife left the matrimonial home without the husband’s
consent and refused to return in spite of several requests. It would be a
valid defence if the Court is satisfied that the grounds which have forced
the wife to live separately are genuine and cogent. It is equally well-
settled law that where one spouse has left without any valid justification
that the law does not insist on the other spouse making any special of
undue efforts to bring the deserting spouse back. It is true that by making
such efforts, the innocent party would establish its bona fide, but merely
Inherent powers
Court in rare cases interferes with the orders of lower Court in
exercise of powers under Section 482, Criminal Procedure Code where
Court is satisfied that to prevent abuse of process of Court or otherwise
to secure ends of justice the interference would be necessary. 3
In a suit for maintenance interim maintenance can be granted in
exercise of inherent power. Wrong nomenclature by mentioning the
petition to be one under section 24 of the Hindu Marriage Act would not
defeat the relief to the wife and Court is not deprived of the exercise of
inherent power under Section 151 Civil Procedure Code. 4
Every Court has inherent power to grant relief during the
pendency of the proceedings if the interest of justice so requires. 5
seek independent relief for maintenance under Section 128 Cr.P.C. is not
taken away. 1
Legal Aid
Legal aid is meant for the purpose to assist the persons of the
category of the petitioner not to suffer injustice for lack of funds, or
legal assistance. It was therefore directed that under such circumstances,
if so required petitioner may apply for legal aid and in that case it may
be granted to her in accordance with the provision, but expeditiously and
preferably within fifteen days from the date of her application. 2
Lien on property
It is only a right to receive maintenance etc. from the profits of
immovable property that could be enforced against the transferee of that
property that too in the event of the same being transferred to him
gratuitous or if transferred for consideration, he had notice of the said
right and therefore, the learned counsel in right in contending that the
provisions of Section 39 of the Transfer of Property Act, 1882 cannot be
made use of for creating a charge on the property which is still in the
hands of the husband because Section 39 authorise overreaching the
property in the hands of the transferee. 3
Maintenance by agreement
An agreement to maintain an illegitimate child, for which the
Mohammedan Law as such makes no provision, will not have the effect
of defaulting the provisions of any law. As a matter of fact, maintenance
of illegitimate children has been statutorily recognized under Section 488
of the Code of Criminal Procedure in our country and it is in consonance
with this wholesome public policy that the offspring born under such
circumstances are to be provided for and should not be left to the
misfortunes of vagrancy and it attendant social consequences. It was
therefore, held that the consideration for the agreement if permitted
would not defeat the provisions of any law. 2
Modification of order
Section 127, on its plain reading, furnishes the grounds on which
the Court passing an order under Section 125, Criminal Procedure Code
can modify that order and enhance the maintenance on proof of a charge
in the circumstances, but such an order for alteration of allowance can be
made only from the date of order passed under this section and not from
the date of application seeking alteration. Under Sub-clauses (2) to
Section 125, Criminal Procedure Code the legislature has left it to he
discretion of the Magistrate to award maintenance from the date of
application for maintenance though normally it shall be payable from the
date of the order in the petition. But under Section 127, Criminal
Procedure Code no such discretion is left to the Magistrate to pass such
order in the application seeking alteration of enhanced maintenance,
from the date of filling of that application, since the legislature itself did
not provide, under Section 127, Criminal Procedure Code that the
Magistrate could date back the order or alteration to the date of
application. Hence it is not open to the Magistrate or the Revisional
Court to exercise such jurisdiction and enhance the compensation from
the date of filing of that application. The Courts have to act within the
strict limitations set out for the exercise of its jurisdiction and they
cannot over-step the same on any equitable grounds. 3
Though there was an agreement or compromise upon which the
first application under Section 127 of the wife was disposed of it will not
operate as estoppel or waiver in case of subsequent application under
Necessary parties
Once, it is found that a necessary party has not been impleaded
and in any case even the parties who were impleaded have not been
served as per requirements of law, the order suffers from serious
jurisdictional errors and a glaring material irregularity, calling for
immediate remedial action by this Court. 3
Code. No order for maintenance can be passed under the Section unless
neglect or refusal to maintain by the husband or father is proved. The
provision has been made with an object to grant the maintenance to the
deserted wives and children and cannot be used as a measure of and a
liver to harass or pressurize a bona fide husband. The onus of proof lies
upon the wife to show that she was justified in living separately for
claiming maintenance. The existence of circumstances in a particular
case may justify the wife to claim maintenance by living separately but
in all other cases it has to be presumed that a wife under the normal
circumstances is bound to live with and under the roof and protection of
her husband. This would imply the wife to prove the existence of
circumstances justifying her not living with the husband. If the wife fails
to prove that she had been forced to live separately or that the doors of
the matrimonial home have been shut by the husband or that her living
with the husband is dangerous to her life and health or that the husband
has incurred some disqualification under any statute to have her
company, she would not be entitled to the grant of maintenance. Neglect
or refusal need not be specific and can be inferred from words, conduct
and circumstances of the matrimonial life of the parties. Existence of
justifiable grounds for wife’s refusal to live with her husband can be a
ground to presume the neglect attributable to the husband to maintain his
wife. A woman is however entitled to live with her husband with that
amount of decency and dignity which prevails in her class and the
environments of the society to which she belongs. If the treatment of the
husband does not permit wife to lead such a decent an dignified life the
same may amount to neglect or/and refusal to maintain her under the
peculiar circumstances of each case. The circumstances justifying the
wife to live separately cannot be exhaustive but can be only illustrative.
The Courts below adjudicating upon the disputes under Section 488
Criminal Procedure Code have to keep in mind the facts and
circumstances of each case. keeping in view the class, social status, and
the position of the parties which they hold in the society to determine
neglect or refusal to maintain. It the wife fails to prove that the husband
neglected or refused to maintain her, she will not be entitled to claim any
maintenance. 1
Pleading
It is the fundamental principle in the law of pleadings that no
amount of evidence can be looked upon in support of a plea having no
foundation in the pleading, and a decision of a case cannot be based on
grounds outside the pleadings. If the wife had pleaded that she has spent
for the marriage and what amount she has spent and what are the items of
expenses for which she spent, the first defendant would have had an
opportunity to meet this case of her’s by filing a written statement. In
this position only because she has stated in the courses of her evidence
that she has spent for the marriage a decree cannot be passed in
her favour. 2
Apart from there being no pleadings, the evidence also is not
sufficient to come to a conclusion that she has spent any definite amount
either for jewels or for other expenses. Thus viewed, the finding of the
trial Court that she has spent Rs. 20,000/- for jewels and Rs. 5,000/- for
expenses cannot be sustained. Here it may be relevant to note that as per
Section 20 of the Hindu Adoptions & Maintenance Act besides father,
mother also is bound to maintain her daughter. 3
The facts stated in the application under section 125 and the
affidavit filed in support thereof did not indicate existence of any such
custom. The argument that the parties have to lead evidence and
Where the wife had miserably failed to prove that the husband
had been cruel to her or that she had justification to live separate from
him, she was not entitled to any maintenance allowance and the petition
was rightly dismissed by the learned Magistrate. 1
Precedent
The late Lord Reid said in an address in 1971 that, in the search
for a middle way between certainty and justice, judges must prevent
precedent becoming master, and with this in view a court should have
regard to common sense, legal principle and public policy in that order.
While remembering that common sense may not always be common to
all men or women, and that it may very from generation to generation. 2
Presumption of litigation
Under Section 112 of the Evidence Act there is a presumption
that if a child is born during continuation of a valid marriage, it shall be
the conclusive proof that the child is the legitimate issue of the husband
unless it can be shown that the parties to the marriage had no access to
each other at any time when the child could have been begotten. 3
Presumption of marriage
The husband himself has admitted that the wife lived with him
after marriage. It is difficult to believe that a girl will live in her
husband’s house for such a long time without any marriage having taken
place. He has further admitted that she has been holding out that she was
his wife. If she were not, he would not allow her to do so. He cannot be
asked to take advantage of his own fraud. In such a case, even after the
passing of the Hindu Marriage Act, 1955, the doctrine of factum validity
should be invoked. If the parties are recognized as man and wife, there is
a strong presumption in favour of the validity of marriage from and
ceremony of the marriage and the legitimacy of its offspring. 4
In another case it was observed that where a man and woman had
lived together as man and wife, the law will presume, until the contrary
is proved that they were living together by virtue of a legal marriage and
not in concubinage. Such presumption can be rebutted only by showing
that the marriage was most highly improbable and not reasonable
possible, marriage can be proved and intention to enter into wedlock. 1
After all rites and ceremonies only serve to provide proof of
marriage as registration does. It is otherwise very difficult after some
lapse of time to lead a Pandit to the witness box to prove that the
marriage had been solemnized. No documentary evidence is even
possible to find. Many of the witnesses disappear meanwhile. No
evidence the hard fact of living together survives. In this case the
husband has not been able to displace such a presumption based upon his
own conduct. It was therefore, hold that the marriage of the parties was
validly solemnized. 2
Proof of marriage
No rule of construction warrants that the Court should presume
existence of a custom which the wife chooses not to plead either because
there is no such custom of for reasons beat known to her. Traditional
form of Hindu marriage is not by exchange of garlands. It requires
certain essential ceremonies like ‘Hom’ and ‘Saptapadi. Therefore unless
the spouse states that such form of marriage by exchange of garlands is
sanctioned by custom in her caste or community no inference of a valid
marriage having taken place can be drawn. The facts stated in the
application under section 125 and the affidavit filed in support thereof
did not indicate existence of any such custom. The argument that the
parties have to lead evidence and therefore the absence of such averment
at this stage is inconsequential is unacceptable because the issue of
interim maintenance must be decided on the basis of material available
on record and not on the hypothesis of material likely to be adduced at
the time of parties’ evidence. In absence of averment of custom in the
petition and the affidavit filed by non-applicant there was no material
before the magistrate to come to a prima facie conclusion of the status of
non-applicant as petitioner’s wife. 3
In another case the impugned order was bristling with surmises
like the unsigned stamps paper produced by wife must have been
executed by the husband but he cunningly omitted to sign it to defraud
her, and that in the photograph of marriage produced with the application
the face of the green is not clearly visible because the took advantage of
the raised hand of the bride to conceal his face. It was held that the
principle that the judge is aided by his life experience in evaluation of
1 Sudama Prasad Pyasi vs. Shail Bala, II (1994) DMC 325 MP.
2 Dukihia Naik vs. Basanti Dei, II (1994) DMC 431 Orissa.
3 Jalandar Gorakh v. Sobhha (1972) 74 Bom LR 755; Sadhu v.
Sarathibala , 1985 Cr.LJ. 979 (Cal).
4 Roopsi @ Roop Singh vs. State of Rajasthan, II (1999) DMC 318:
1999(1) HLR 622 Raj.
Practice & Procedure—Proof of marriage 559
1 Veena Devi vs. Ashok Kumar Mandal, I (2001) DMC 177 Patna.
2 Surjeet Kaur vs. Hardam Singh, I (1992) DMC 226 Raj.
3 Surjeet Kaur vs. Hardam Singh, ibid.
4 Sumitra Devi vs. Bhikan Choudhary, AIR 1985 SC 765; relied.
560 Law of Maintenance
the strength of said document. When the wife has no case that she and
the petitioner married under the Special Marriage Act and Agreement
cannot be construed as proof of a valid marriage between them, a mere
declaration in the agreement would not be sufficient to hold that she is
the legally wedded wife of the petitioner. That being the position, she
cannot claim maintenance under Section 125 of the Code of
Criminal Procedure. 1
Proof of no income
In one case it was stated that the claimant was living in her
matrimonial home and has no source of income. It was held that a
negative statement like this does not require any positive statement to
prove the same and hence the statement supported by an affidavit already
on record could not have been improved in any manner. This situation
however was denied by the non-applicant. According to him the
applicant was having land in her name on which she was doing
cultivation. This fact, the non-applicant claims to have come to his
knowledge on the basis of the information given by the applicant herself.
There is however nothing on record to justify such a statement. If the
applicant owns some land at the place where she is staying at the present
it should have been possible for the non-applicant to obtain copies of
revenue record from the authorities and file the same in the Court. The
revenue record would even disclose the name of person cultivating the
land. The non-applicant has however not cared to place this material on
record. Under the circumstances, there is nothing to hold that the
applicant is having sufficient income to maintain herself and also to meet
the legal expenses. In this view of the matter it was held that the
applicant is entitled to maintenance and legal expenses under Section 24
of the Hindu Marriage Act. 2
Proper witness
A party in proceeding of such a nature is a competent witness and
its statement has to be taken on its normal worth and it cannot be
rejected merely on the ground that it is a statement of a party to the
litigation itself. Similarly, in matrimonial matters, it is only the near
relations of the parties or their close friends and associates, who can be
expected to be acquainted with the facts relating to the parties and,
therefore, their statements also cannot be discarded merely on the ground
that they are relations or are friendly to the parties concerned. That
evidence also has to be considered on its normal merits and demerits and
it cannot be discarded merely on the ground that it is partisan evidence. 1
Quashing
The right of a child to get maintenance is an independent right. A
child does not live either with the father or with the mother on its own
volition and cannot be deprived of it’s right. 2
In another case the Gujarat High Court has held that child’s right
to maintenance is quite independent and is not effected even by the
provisions of the Muslim Women (Protection of Divorce) Act. 3
The mere fact that the application for maintenance was filed after
filing of the Habeas Corpus petition is not a ground to quash the
proceedings under section 125 Cr.P.C. All relevant facts can be suitably
decided only in the proceeding under Section 125 Criminal
Procedure Code. 4
The position of law cannot be disputed that in exercise of
inherent powers under Section 482 this Court can interfere in the
impugned order to prevent abuse of process of Court or to secure the
ends of justice. Now it is settled that petition under Section 482 is not
maintainable against the order passed in revision confirming the order of
the Magistrate. Thus, so for as that part of the impugned order is
concerned whereby the order of the learned Magistrate was confirmed
the petition under Section 482 is not maintenance. Of course, the order
through which the amount of maintenance was enhanced can be
challenged provided the applicant succeed in showing that there was
abuse of the process of the Court or it was necessary for the ends
of justice. 5
After the disposal of the criminal writ petition by the Division
Bench, the petitioner has filed this petition under Section 482 of the
Code of Civil Procedure for the same relief. It was held that the
petitioner was taking undue benefit and advantage of the situation that he
is appearing in person and is not bound by the procedure of law or any
norms. It was further held that this petition was a total abuse of the
process of law. The petitioner cannot be allowed to abuse the system
indefinitely just because he chooses to appear in person. The petitioner
Remedy of suit
In one case, placing reliance upon the provisions of Hindu
Adoptions & Maintenance Act, 1956 urged that for enforcing
maintenance, the plaintiff might to have filed a suit under the provisions
of the said Act in which eventuality the Court would be entitled to
exercise its discretion, as envisaged under Section 18 of the Act in fixing
the amount of maintenance having regard to the factors mentioned in
Section 23. Needless to add that it is the case of the
plaintiffs/respondents that the suit has not been laid for claiming
maintenance under the provisions of Hindu Adoptions & Maintenance
Act, 1956. As such there is no question of applicability of Section 23(1)
of the Hindu Marriage Act. On a plain reading of the plaint, it can be
seen that it is not a suit for maintenance but a pure and simple suit
seeking enforcement of the settlement arrived at between plaintiff and
the defendant/appellants. It was held that there is no provision in the
Hindu Adoptions & Maintenance Act, 1956, which debars filing of such
a suit. The Act is not an exhaustive on the law relating to maintenance
among Hindus. It is an Act to amend and codify the law relating to
adoptions and maintenance among Hindus. 1
Resjudicata
The finding of the Civil Court regarding desertion which is
binding on the Criminal Court. If it was a case of a decree of annulment
of marriage then such decision of the Civil Court per se would be
sufficient to disentitle the wife to claim the maintenance. But such was
not the position here. The contention in this case was that the Civil
Courts’ finding that the wife had deserted her husband and had not
joined the matrimonial home on her will and desire is binding on the
Criminal Court. It was therefore incumbent on the part of the Courts
below to scrutinise the judgment passed in the civil suits and ascertain if
any such finding had been recorded therein. A further question which
need to be examination in the case is that if such a finding was recorded
by the Civil Court whether in the averments made in the petition filed
under Section 125, Criminal Procedure Code and in the evidence led in
the proceeding there is anything to show that subsequent to the decree of
the Civil Court there has been a material change in the fact position or a
supervening circumstances has taken place which entitles the wife
to maintenance. 2
The Hindu Law as well as the common law cast a duty on the
husband to maintain the wife. In India, long before 1955, when the Act
was brought into force, such a duty of the husband was given statutory
recognition in the India Divorce Act, the Parsi Marriage and Divorce Act
and the Special Marriage Act. 3
The amount of maintenance, whether it is fixed by a decree or
agreement is liable to be increased or diminished whenever there is a
1 Ravi Singhal vs. Manali Singhal, II (2000) DMC 732: 1999(1) HLR
648 Delhi.
2 Jasholal Agarwala @ Jain vs. Puspabati Agarwala, II (1994) DMC
169 Orissa.
3 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
564 Law of Maintenance
Another authority 2 which was also relied in this decision may also
be referred, wherein Bhat, J. observed:
“Altogether she has filed two application; but the earlier one was
filed when she had the status of the wife and the latter application
was filed at a time when she had ceased to be wife and as a
divorced wife on the strength of the extended definition of the
expression “wife” occurring in Explanation (b) to Section 125(1).
Therefore, the present application cannot be treated as a second
application at all. There is no incompetency attached to the latter
application.
Revision
The inherent powers under Section 482 of the Code cannot be
utilised for exercising powers which are expressly barred by the Code.
Hence the High Court had clearly erred in entertaining the second
revision. In this view of the matter the petition under Section 482
Criminal Procedure Code was held not maintainable. 4
The questions whether the appellant No. 1 was the married wife
of the respondent and whether the appellant No. 2 was the. legitimate or
illegitimate child of the respondent, are pre-eminently questions of fact.
The Magistrate after considering the evidence, as adduced by the parties,
held that the appellant No. 1 was not the wife of the respondent. He
further held on the basis of the evidence on record that the appellant No.
2 was the illegitimate child of the respondent. Thereafter the learned
Judge of the High Court, committed an error in making a re-assessment
of the evidence and coming to a finding that the appellant No. 2 was not
the illegitimate child of the respondent. The High Court in its revisional
jurisdiction was not justified in substituting its own view for that of the
Magistrate on a question of fact. 1
It was urged that the applicant who was working in the Police
Department was later suspended and he was been getting only a
suspension allowance of Rs. 11,00/- and now the position is that he has
been dismissed and, therefore, he does not get anything by way of salary.
However, when the order was passed, these circumstances were not the
circumstances which prevailed and the consequent changed
circumstances could be matter for appropriate relief to be pleaded by the
husband upon proof of certain aspects if the husband needed any
notification into the order from the Trial Court. however, neither there
are any clear facts nor any proper date not the wife and the daughter
have been represented by any one, and it is really unsafe to record any
observation on this aspect of the matter, which has been thus advanced. 2
Family Court Act are pari materia to the phraseology used Section 397,
Criminal Procedure Code. 1
Procedure adopted by the Revisional court in calling the parties
in the chamber and discussing the matter with them was not
contemplated in the Code of Criminal Procedure as the entire procedure
in respect of grant of maintenance has been exhausted under Section 125,
126, 127 and 128 Criminal Procedure Code. It is further contended by
the learned counsel for the applicant that since the revisional order could
be challenged before the High Court in the absence of any document in
the form of nothing relating to what had transpired in the chamber, it was
not possible for the High Court to know as to what had really transpired
in the chambers and to what extent the observations of the revisional
court in that respect were correct. It is contended that this procedure of
the Revisional court resulted in an additional evidence of which the High
Court had no record and as such it is not possible either for this court or
for the parties to gauge as to what extent that additional evidence was
responsible to affect the mind of the revisional court and whether the
observation based on that evidence was legally justified or not. This
contention of the applicant appears to be correct. Unlike the procedure
prescribed under the Hindu Marriage Act. Section 125 and 126, Criminal
Procedure Code do not prescribe that the Court should make any effort
for reconciliation by talking to the parties. In any case, the Revisional
court ought to have recorded a note in detail duly signed by both the
parties as to what had transpired in the chambers, if at all this procedure
had not been objected by the parties and it could be only thereafter the
he could have treated it as evidence in setting aside the order of the
Magistrate on the point. 2
In the fitness of the things and the interest of justice it would be
expedient that different revisions arising out of the same order, to be
heard and decided by the common forum. 3
Revisional jurisdiction
Section 397 Criminal Procedure Code empowers the Courts
specified therein to call for the records of inferior criminal courts and
examine them for the purpose of satisfying themselves as to whether a
sentence, finding or order passed therein is legal, correct or proper or
whether the proceedings of such inferior Courts are regular. Under the
circumstances, it may be examined if the grant of Rs. 300/- per month as
Settlement
There has been an outburst of matrimonial disputes in recent times.
The marriage is a sacred ceremony, the main purpose of which is to enable
the young couple to settle down in life and live peacefully. But little
matrimonial skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in which elders of the
family are also involved with the result that those who could have counselled
and brought about rapprochement are rendered helpless on their being arrayed
as accused in the criminal case. There are many other reasons which need not
be mentioned, for not encouraging matrimonial litigation so that the parties
may ponder over their defaults and terminate their disputes amicable by
mutual agreement instead of fighting it out in a Court of law where it takes
years and years to conclude and in that process the parties lose their “young”
days in chasing their “cases” in different Courts.3
1 KU. Saba vs. Syed Mohammad Fazil, I (1991) DMC 262 MP.
2 KU. Saba vs. Syed Mohammad Fazil, ibid.
3 G.V. Rao vs. L.H.V. Prasad, I (2000) DMC 385 SC.
Practice & Procedure—Territorial Jurisdiction 569
Successive petitions
Where a suit is dismissed, wholly or partly, under Rule 8 of
Orders 9 of the Code of Civil Procedure, the plaintiff shall be precluded
from filing a fresh suit in respect of the same causes of action. The
question is whether the provisions of Rules 8 and 9 of Order 9 of the
Code of Civil Procedure are applicable to petition under the High
Marriage Act. Subject to the other provisions of the Hindu Marriage Act
and the rules made by the High Court, “all proceedings” under the Hindu
Marriage Act, shall be regulated, “as far as may be”, by the Code of
Civil Procedure governs the proceedings under the Hindu Marriage Act.
The words “as far may be” no doubt, qualify the application of the Code
of Civil Procedure to the proceedings under the Hindu Marriage Act.
There words merely mean that the provisions of the Code of Civil
Procedure, which, by reason of their nature are incapable of application
to the proceedings under the Hindu Marriage Act, may not be applicable.
For instance the provisions as to the place of suing the institution of suits
by presentation of plaints and such other provisions of the Code of Civil
Procedure as are inconsistent with provisions of the Hindu Marriage Act,
may be not be applicable to matters in respect of which Hindu Marriage
Act has different provisions. However there is no provision of the Hindu
Marriage Act or Rules made there under, which suggests exclusion of the
application of Rules 8 and 9 of Order 9 of the Code of Civil Procedure.
Therefore, Rule 9 of Order 9 of the Code of Civil Procedure was held
applicable to the proceedings under the Hindu Marriage Act. 1
Every citizen has a right to litigate his cause and seek justice
from a Court of law. It is of the essence of this right that it is exercised
bona fide. To use this right to seek remedy by misuse, wrong or bed use
of the judicial process is, to abuse the process of the Court. In legal
thinking abuse of process of the Court is a term generally applied to a
proceeding which is wanting in bona fides and is frivolous vexation or
oppressive”. Abuse of process of the Court, however, takes various
forms. For instance accruing an injunction to protect one’s possession
when he is not in possession, filing successive suits in respect of the
same cause, accruing a relief by suppression of facts and so on. 2
Territorial Jurisdiction
A specific plea is taken by the husband that he and the appellant
lived together at Bangalore, which was specifically denied by the
appellant in her objection statement. No point for determination of that
pleading was ever raised by the Court below to give jurisdiction under
clauses (iv) of Sub-section (1) of Section 31 of the Act. Now apparently
the Family Court came to the conclusion that on the date the petition was
presented by the husband, the appellant was residing outside the
territories to which the Act extended and therefore, it had jurisdiction. In
other words, the expression ‘residing outside’ has been construed by it
literally, which was held to be not correct. 1
Residing outside the territories to which this Act extends’
occurring in clause (iv) of Sub-section (1) of Section 31 of the Act must
be construed to mean residing the intention of permanently residing and
has acquired domicile of the other country to which the Act does not
extend. If any other, limited meaning is given, then the jurisdiction can
be created by including the other party to go on a pleasure trip to a
country to which the Act does not apply. It was held 2 that the Family
Court should have formulated following two points for determination in
order to determine its own jurisdiction with reference to the pleading:
(i) Whether or not the appellant-wife and the respondent-husband
last lived together within the jurisdiction of the Family Court at
Bangalore? and
(ii) Whether the appellant-wife was a permanent resident of had
acquired the domicile in England at the time petition was
presented in the Family Court at Bangalore?
It was further held that the word ‘domicile’ was used with the
specific intention that the Family Court must go by what domicile in
Municipal and International Law means and it should invite evidence
from the parties in regard to the two points above as the jurisdiction will
depend on the facts to be established on the point formulated. Therefore,
the order under appeal was set aside and the matter was remitted to the
Family Court to decide the question afresh in the light of the points
formulated above and after inviting the evidence to be adduced by the
parties in order to decide the jurisdiction of the Family Court. 3
Under Criminal Procedure Code when the revisional jurisdiction
is invited by the litigation it is not as a matter of right but it is
discretionary power vested in the Court to examine the proceedings of
the courts below in certain circumstances. If the petitioner or his
advocate is heard and system has developed and we have been following
that the advocates are present and the petitioners are present, they are
heard in the interest of justice. But there is no obligation on the Court to
wait for the party in revisional jurisdiction. The Court itself examine the
record and the petitioner cannot be blame as a matter of right of not
hearing if he chose to remain absent. It is true that the courts are not
supposed to decide the matters in the absence of the parties or their
advocates, but then it is also equally true that the advocates who
themselves filed the petition and especially when they are appearing
before the Revisional Court it is desirable that some responsibility is
attached to them also. 1
Under Section 18 of the Hindu Adoptions & Maintenance Act, the
petitioner is entitled to maintenance provided she first proved that she
was treated by the husband with such cruelty as to cause a reasonable
apprehension in her mind that it would be harmful or injurious for her to
live with him. The various acts of cruelty and desertion in the instant
case took place at Kalyan and, therefore, it was held that the cause of
action or any part thereof accrued in Kalyan and not in Bombay. 2
Transfer of proceedings
The meaning and purpose of Section 21A of the Hindu Marriage
Act is clearly to prevent the catastrophic possibility of two different
Courts passing conflicting judgments and differing decrees, one granting
divorce and another denying it. In order to avert this danger, Section 21A
of the Hindu Marriage Act takes away discretion from the Court and by
use of the word ‘shall’ mandatorily directs the appropriate Court or
Government to consolidate for trial the two applications filed separately
by the husband and wife seeking divorce or judicial separation by
transferring the application filed later in point of time to the Court where
a similar first application is filed and pending. The aforesaid Section
21A of the Hindu Marriage Act is concerned only with two of the several
situations that may call for transfers. Dealing with that situation Section
21A of the Hindu Marriage Act provide more for the performance of an
uniform duty by the Court and almost for an involuntary joint trial
without any reference to the will of the parties. Section 21A of the Hindu
Marriage Act has nothing to do with the power to be exercised by the
Court on the basis of individual cases. Section 21A of the Hindu
Marriage Act, proceeding on the basis of above policy does not,
therefore, leave any discretion either to the Court or to the parties in the
matter of transfer, not even in the matter of deciding which application
should be transferred to which Court. Legislature has settled all these
questions and decided every essential detail. But outside that limited area
there can be several situation calling for transfer with or without joint
trial. Those situations are still left to be dealt with by Section 24 of the
C.P.C. They are still left to be governed by the general provisions of
Section 24 of the C.P.C. Appropriately under Section 24 of C.P.C., what
is given to the Court to deal with those situation is a discretionary power
enabling the High Courts and the District Court to transfer cases on
individual basis. There is wide discretion available to the Courts under
Section 24 of C.P.C. The subject matter of these two statutory provisions
and the area of their operation and the purpose for which they are
intended to be used, cannot, therefore, be said to be the same. 1
The purpose of Section 24 of C.P.C. is merely to confer on the
Court a discretionary power. A Court acting under Section 24 of the
C.P.C. may or may not in its judicial discretion transfer a particular
subsequent application to be tried along with a particular earlier
application. Now Section 21A of the Hindu Marriage Act substitutes a
mandatory duty in the place of this discretionary power denying
discretion altogether to the Court to a situation to which 21A of the
Hindu Marriage Act applies. It is for this reason that Section 21-A is
enacted. By confining Section 21A to that area alone that Section is
rendered neither meaningless nor superfluous. Outside the situation
covered by 21A of the Hindu Marriage Act, there is therefore no reason
to hold that the discretionary power of transfer given to the High Court
and the District Court under Section 24 of the C.P.C. is altogether
abrogated in the matter of transfer of matrimonial cause under the Hindu
Marriage Act. 2
Section 21 of C.P.C. is a remedial provision. Such a provision
should not be nullified by interpretation except for compelling reason of
language or purposes of the Statute. 3
In one case it was contended by the petitioner that on the
previous occasions when the petitioner went to attend the Court on the
dates of hearing, the opposite party with her father and some anti-social
elements threatened him with consequences, if he again attended the
Court to contest the case. It was held that the provisions of Section 407,
Criminal Procedure Code can not be applied on such a ground. If really
any such incident takes place, the remedy lies elsewhere. Transfer of the
case to another place on this ground cannot be called for or justified.
Such threat has nothing to do with the venue of the proceeding and may
occur anywhere irrespective of the place where the Court is situated and
it cannot be made a ground for transfer. It was also held that such a story
unaccompanied by any complaint of Diary while original to have been
lodged with the police by the petitioner loses its credibility. 1
It was also the case of the petitioners that the petitioner No. 1
being employed at Bhotan has to come long way in order to attend the
Court on the dates of hearing. This contention was held to be not very
impressive for the reason that in any event he had to come to Jalpaiguri
from the place of his work. Judicial notice was taken of the fact that the
Cooch Behar district is contiguous to the Jalpaiguri district and the
distance between Jalpaiguri Court and Cooch Behar Court can be covered
by only few hours journey by bus. It was held that it should not be
forgotten that the other party was the wife of the petitioner and was a
female person. The amended Section 126, Criminal Procedure Code has
bestowed upon her the right of having the venue of the proceeding in the
District in which she presently resides. To transfer the case to a Court of
Jalpaiguri district will be to deprive her of this privilege frustrating the
intention of the Legislature. If comfort is provided to the male party, that
will be at the cost of the female party’s convenience. If he is allowed to
have the Court in the vicinity of his house, the member of the weaker
section will be forced to travel a longer distance every time there is a
date for hearing. Moreover, it should be borne in mind that the
expression used in Section 407(1)(c) of the Code, namely, that the order
“will tend to the general convenience of the parties or witnesses” is
designed to draw a line between the inconvenience affecting a group of
persons in general and that affecting a single person in individual
capacity. In this case the wife is the 1 st party at whose instance the
proceeding has been started and she is supposed to have the burden of
proving her case with the help of witnesses hailing from her locality.
From this point of view also the language of the law was held to be in
her favour. 2
Verification of affidavit
The wife in her application for pendente lite maintenance has
stated that the husband “is a medical practitioner and has got a lucrative
practice and earns at least Rs. 8,000/- per month” and that he also “own a
fairly big house at Calcutta” which fetches and is capable of fetching
decent income”. But in the affidavit in support this application all the
statements in the application have been affirmed as “true to the best of
my knowledge and belief” without specifying in any way which
statement are true to her knowledge and which are true to her belief and
also without stating starting the grounds of such belief. Under the
provisions of Order 19, Rule 3(1) of the Code of Civil Procedure, in
affidavits relating to interlocutory applications, statements of the
deponent’s belief may be admitted, provided however, “the grounds
thereof are stated”. It was therefore held that the statements in the
affidavit of the wife could not, in law, be taken into consideration. 1
Chapter 13
Scope of jurisdiction
SYNOPSIS
Introduction....................................575 Inherent powers ............................. 580
Alternative forums..........................575 Pecuniary jurisdiction ................... 581
Appropriate forum .........................578 Revisional jurisdiction ................... 582
Court of record ..............................579 Revision and merger ...................... 582
Family Court ..................................579 Summary jurisdiction .................... 585
Finding on legitimacy ....................579 Territorial Jurisdiction .................. 586
Introduction
The right to seek maintenance flows from various legislative
provisions as also, in some cases under the ancient Hindu law. Similarly
there are various courts/forums which are entitled to deal with different
situations and petitions. This chapter deals with such forums and the
precedents which have resolved the questions relating to the scope of
jurisdictions of these forums.
Alternative forums
The amount awarded under Section 125 of the Cr.P.C. for
maintenance is adjustable against the amount awarded in the matrimonial
proceedings and is not to be given over and above the same. 1
The main aim of Section 125 Criminal Procedure Code is that the
women are not thrown out to the vagrancy as there is no maintenance to
them. To safeguard their right to live by getting maintenance. Section
125 Criminal Procedure Code, is provided. Under Section 125 Criminal
Procedure Code, the women can approach the Court, where she is living
whereas that is not the position under the Hindu Marriage Act.
Considering the proceeding under Section 488 Old Criminal Procedure
Code (equivalent to Section 125 of the present Criminal Procedure Code)
Chinnappa Reddy, J. held 2 as under:
1 in Varda Kota Satyanarayana vs. Varada Parvathi 1986 (1) ALT 201.
2 Abha Prasad @ Abha Sharma vs. Bimal Kishore Prasad, II (1995)
DMC 458 Patna.
3 Nanak Chand vs. Chandra Kishore Aggarwal, 1970 CrLJ 522: 1970
AIR (SC) 446: 1970(1) SCR 565: 1969(3) SCC 802: 1969 All WR
(HC) 711: 1970 Mad LJ (Cri) 94.
578 Law of Maintenance
Appropriate forum
The filing of the petition under Section 125 of the Code of
Criminal Procedure does not debar the Matrimonial Court, from fixing
maintenance pendente lite under Section 24 of the Act. If the Court fixes
maintenance under Section 125 of the Code of Criminal Procedure, the
husband will be entitled to claim adjustment for the maintenance paid
pendente lite under Section 24 of the Act. The order passed by the
Matrimonial Court under Section 24 of the Act cannot be rendered
nugatory because no proceeding under the Act was pending. The order
under Section 24 of the Act can be enforced like a decree. 3
The Hindu Adoptions & Maintenance Act provides for a right to
claim maintenance to the wife under Section 18. The remedy under
Section 125 Criminal Procedure Code is summary in nature and quicker
than the one provided under the Act. Therefore, merely because the party
can approach the civil court, the same is not a bar to claim maintenance
1 Chand Dhawan vs. Jawaharlal Dhawan, 1993 CrLJ 2930: 1993 (3)
SCC 406.
2 Chand Dhawan vs. Jawaharlal Dhawan, ibid.
3 Om Prakash vs. Chander Wati @ Chamderpali, I (1991) DMC 352
P&H.
Scope of jurisdiction—Finding on legitimacy 579
Court of record
The High Courts in India being superior Courts of record with
original, appellate and supervisory jurisdiction, subject to the appellate
jurisdiction of the Supreme Court, have unlimited jurisdiction to
interpret as well as to determine authoritatively the law, codified law or
uncodified law as well as to declare the law and to apply the relevant law
to the facts of the case. The High Courts are Court of unlimited
jurisdiction and repository of all judicial power under the Constitution
but subject to any other exception specifically provided by the
Constitution. Being Courts of records the High Courts have jurisdiction
to determine their own powers as well. Being expositor of law and the
intent and will of the Parliament the legislature and the framers of the
Constitution under the provisions of the Constitution of India as well, the
framers of the Constitution have assigned a new role to the
Constitutional Courts i.e. Courts constituted under the Constitution, to
ensure the rule of law. 2
Family Court
The claim for maintenance includes claim for marriage expenses.
Explanation (f) of Section 7 of the Family Courts Act though does not
deal with marriage expenses, the word ‘maintenance’ there takes in
marriage expenses of the unmarried daughter. Hence, the suit is
exclusively triable by the Family Court and not by a Civil Court. 3
Finding on legitimacy
On the sole ground that the child had been born in about 7
months’ time after the marriage it cannot be concluded that the child
should have been conceived even before the respondent had
consummated the marriage. Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an improbable or impossible
event. The proper course for the High Court, even if it is entitled to
interfere with the concurrent findings of the Courts below in exercise of
its powers under S. 482, Cr.P.C., should have been to sustain the order of
maintenance and direct the respondent to seek an appropriate declaration
in the Civil Court, after a full fledged trial, that the child was not born to
him and as such he is not legally liable to maintain it. Proceedings under
S. 125, Cr. P.C., it must be remembered, are of a summary nature and are
intended to enable destitute wives and children, the latter whether they
are legitimate or illegitimate, to get maintenance in a speedy manner.
The High Court was, therefore, held to be in error in quashing the order
of maintenance in favour of the child. 1
Inherent powers
It is not for High Court to go through the whole case over again
or to find out whether it could interfere with the findings on a different
approach to the question which this Court may choose to make. Such an
exercise would be uncalled for and beyond the scope of the power under
Section 482. The Court should guard against such a situation and should
not be tempted to interfere merely because, if the court has occasion to
go through the evidence afresh perhaps it may choose to take a view
different from that taken by the court below. 2
Where right of maintenance to a woman is denied on untenable
grounds, quashing such an order can be considered the object of securing
the ends of justice within the meaning of Section 482 of Criminal
Procedure Code. 3
The wife in order to claim maintenance from her husband has to
prove that her husband, having sufficient means, has neglected or refused
to maintain her and further that she was unable to maintain herself. The
ingredients of Section 125(1) Criminal Procedure Code, which the wife
has to prove is the neglect or refusal on the part of the husband to
maintain her and further that she is unable to maintain herself. In the
instant case, there is dispute regarding the fact the petitioner/husband has
neglected or refused to maintain the respondent/wife. There is also
dispute regarding the fact that the respondent/wife is unable to maintain
herself. Till the respondent/wife proves these ingredients against the
husband and shows that she has legal and justifiable reasons for living
separately from her husband and that she is unable to unable to maintain
Pecuniary jurisdiction
Although what the section 125 of Criminal Procedure Code, 1973
plainly means is that the Court cannot grant more than Rs. 500/-for each
one of the claimants. “In the whole” in the context means taking all the
items of maintenance together, not all the members of the family put
together. 2
If a woman has a dozen children and if the man neglects the
whole lot and, in his addiction to a fresh mistress, neglects even his
parents and all these members of the family seek maintenance in one
petition against the delinquent respondent, can it be that the Court cannot
award more than Rs. 500/- for all of them together? On the other hand if
each filed a separate petition there would be a maximum of Rs. 500/-
each awarded by the Court. Therefore, this obvious jurisdictional
inequity was refused to be read in the provision by reading a limitation
of Rs. 500/- although what the section plainly means is that the Court
cannot grant more than Rs. 500/- for each of the claimants. ‘In the
whole’ in the context means taking all the items of maintenance together,
not all the members of the family put together. This interpretation
accords with social justice and semantics and, more than all, is obvious. 3
1 Kulwant Singh Bhullar vs. Sukhwant Kaur, 1999(1) HLR 155 P&H.
2 Captain Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ
3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978
SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1.
3 Captain Ramesh Chander Kaushal vs. Veena Kaushal, ibid.
582 Law of Maintenance
Revisional jurisdiction
In case of dispute about valid marriage of claimant and
legitimacy of child the High Court in exercise of revisional jurisdiction,
substituted its own finding in substitution of finding of Magistrate. It
was held that such inference with finding of fact was not proper. 1
Section 397 Criminal Procedure Code empowers the Courts
specified therein to call for the records of inferior criminal courts and
examine them for the purpose of satisfying themselves as to whether a
sentence, finding or order passed therein is legal, correct or proper or
whether the proceedings of such inferior Courts are regular. Under the
circumstances, it may be examined if the grant of Rs. 300/- per month as
maintenance was proper. Order fixing proper amount of maintenance is
an order passed in exercise of discretion by the trial Magistrate. It
necessarily involves some amount of guess-work. As long as the power
has been properly exercised by the Magistrate, it will not be within the
jurisdiction of the Revisional Court to take a contrary view thereof, only
because it feels otherwise. 2
The question that High Court would ask in such a case is whether
an amount of Rs. 300/- per month for maintenance of a child living in the
city of Bhopal was excessive, so as to be characterised as illegal exercise
of discretion ? Taking into consideration the present level of prices of
essential commodities and other amenities as also facilities, it was held
that Rs. 300/- per month cannot by any stretch of imagination be
characterised as excessive. What has to be appreciated is that an amount
of maintenance granted under Section 125 Criminal Procedure Code is
expected to provide for a standard of life, wherein the beneficiary is able
to keep his body and soul together. This takes within itself not only the
expenses for food and clothing’s, but also expenses involved in meeting
other necessities of life. The Court is not expected to adopt a rigid
dogmatic or technical stand in such a matter and keep in mind that the
provision has a social purpose. 3
1 Anwar Jahan vs. Mohammad Osman Ali, I (1991) DMC 356 AP.
2 State of Madras vs. Madurai Mills, AIR 1967 SC 681.
3 U.J.S. Chopra vs. State of Bombay, AIR 1955 SC 633.
584 Law of Maintenance
Summary jurisdiction
In a case for maintenance under Section 125 of the Criminal
Procedure Code, it is not necessary that the marriage is established
beyond reasonable doubt, it is enough for the Magistrate that prima facie
case is made out, in order to afford the immediate and speedy relief of
the suffering party, under Section 125 Criminal Procedure Code, while
leaving open to the aggrieved party the right to agitate his plea before
the civil court, if he is so advised. 1
In a proceeding under Section 125 of the Criminal Procedure
Code (Chapter IX) the Court does not determine the status of parties and
it does not given any finding having the value of res judicate in respect
of the parentage or matrimonial status. The provisions of the Chapter are
meant to preserve peace and avoid strife in society by providing
immediate relief to parties who are neglected, and who otherwise would
resort to vagrancy, mendacity or other anti-social activities. In a
proceeding under Chapter IX, Criminal Procedure Code, the role of the
Magistrate is only to find out whether there is a prima facie case in the
claim of the person approaching the court for an immediate relief. He has
no time, no jurisdiction to embark upon an elaborate enquiry. 2
The Code by virtue of Section 125 provides a summary remedy
for awarding maintenance to all neglected wives irrespective of castes,
creed, community or religion to which they belonged. It carves out an
independent sphere of its own and is a general law providing a summary
machinery for determining the maintenance to be awarded by the
Magistrate under the circumstances mentioned in the Section. It provides
a summary procedure, its findings are not final and the parties can
agitate their rights in Civil Court. 3
The liability imposed by Section 125 to maintain relatives,
detailed in the provision who are indigent is founded upon the
individual’s obligation to the society to prevent vagrancy and destitution.
The forerunners of present Section 125 are Section 488, 489 and 490 of
the Code of Criminal Procedure, 1898. Said provisions constituted one
family. In the words of Sir James Fitzstephen they provided a more of
preventing vagrancy, or at least preventing its consequences. They are
intended to fulfil a social purpose. Their object is to compel a man to
perform the moral obligation which he owes to society in respect of his
Territorial Jurisdiction
When the statute nowhere dictates that residence must always be
permanent, it can not deemed to be so. If it were meant to be so, nothing
prevented the legislature to spell out its intention by giving a meaning to
the expression ‘resides or resided’ to the effect that such residence was
to be permanent character and not of a temporary nature. There is,
however, a distinction between the expression ‘reside’ and ‘stay’. The
expression ‘reside’ implies something more than ‘stay’. The expression
‘stay’ and means remaining at a place for a temporary period. The
expression ‘reside’ according to Oxford dictionary means, “to dwell
permanently or for a considerable time, to have one’s settled or usual
abode; to live in or at particular place”. A person can be taken to reside
at a place even if lives in a rented house, if such residence is not for a
purely temporary period. The real test is whether he has a permanent
place of living to which he intends to go back. If a person has no
permanent place of living, it can safely be inferred that the place where
he lives is the place where the resides. 2
According to Section 126(1)(b) of the Criminal Procedure Code
territorial jurisdiction of the Court may be determined by the present
residence of the wife as given in her petition under Section 125, Criminal
Procedure Code, irrespective of where the cause of action might have
arisen. In that view of matter, transfer of the case to another Court on
this ground will not be permissible. 3
Where the respondents did not raise the objection regarding
jurisdiction in the Trial Court and took the chance of getting order in
their favour, it cannot be said that there was failure of justice or the case
of the respondent had been prejudiced because the case was tried by the
Magistrate exercising power in that place. They should have raised the
objection at the early stage of the proceedings. Failure to do so proves
conclusively that there was no prejudice or failure of justice. 1
Chapter 14
Miscellaneous entitlement
SYNOPSIS
Introduction....................................588 Litigation expenses ........................ 589
Compensatory cost .........................588 Necessary expenses of the proceedings
Delivery expenses...........................589 ....................................................... 593
Expenses after conclusion of Travelling expenses ....................... 594
proceedings ....................................589 Written Application ....................... 596
Introduction
In addition to the maintenance, a party is also entitled to various
other compensations or payments which do not strictly fall with in the
term maintenance but are none the less associated to the grant of
maintenance. This chapter deals with such entitlements.
Compensatory cost
The petitioner in one case had to attend the Ajmer Court on every
date. she was in service and therefore she had to take leave. Not only this
she had to accompany her brother and thereby had to spend lot of money.
Under these circumstances, it was directed to the non-petitioner to pay to
the petitioner Rs. 300/- on each date of hearing when she comes to attend
the Court. In addition to this following directions were also given to
enforce this payment:
‘The respondent will pay the arrears to the petitioner also at the
aforesaid rate. It there is any direction by the Trial Court in this
respect the same is modified to this extent. If the respondent has
paid any amount to the petitioner for expenses of coming and
going and of stay at Ajmer, they shall be deducted from the
arrears. The respondent will pay arrears to the petitioners within a
period of three months from today. The respondent is further
directed to give an undertaking before the Family Court that he
will not harass in any way to the petitioner when the she comes to
Ajmer to attend the Family Court. The Judge, Family Court is
also directed to see that the petitioner is not in any way harassed
by the respondent and his friends or colleagues.’ 1
Delivery expenses
A child was delivered by the wife in city clinic. However, there
was no evidence and it could not be there, as to how much expenses was
incurred by the petitioner on the delivery. Since there was no indication
of expenses it was held to be not possible to award the amount claimed.
Considering the fact that the delivery was in a fairly posh clinic, the
minimum expense that would have to be incurred is Rs. 1000/-.
Accordingly, the petitioner was held to be entitled to further sum of
Rs. 1000/- to reimburse her for the delivery expenses which she must
have incurred. 1
Litigation expenses
If the Legislature intended that the spouse whose income is not
sufficient to pay maintenance to the other should not be asked to pay the
same, there is no reason why the Legislature should think that that
spouse should be obliged to pay the expenses of the proceeding to the
other spouse even if the former has no means to pay the same. While
ordering payment of the expenses of the proceeding the Court has to take
into consideration the income of the respondent i.e. the spouse from
whom such expenses are sought. 3
In another case both the learned attorney/counsel for the parties
admitted that income of both the spouse was more than Rs. 5000/-. When
the husband filed the appeal, wife was required to be summoned for
reconciliation proceedings. For that purpose, the Division Bench passed
an order that the husband should pay Rs. 5000/- to her to come to
pendency of the case at the cost of the other spouse in case the latter is in
a position to foot the same. 1
It is not fair for wife to spend luxuriously the amount in litigation
and burden the husband whose total pay package is of Rs. 6,116,50 p.m.
This claim may be with the object and purpose to harass the husband.
Both the parties so long as their relation of husband and wife is tied up
should take care of each other and to see that wife also minimise, her
expenses of litigation and more so when after the Act of 1987 she is
entitled for free legal aid. From the order of the Court, it was found that
the amount of Rs. 1,500/- awarded as special costs may not be final
figure of the amount of expenses of litigation. It is still open to the Court
to reconsider the matter but at the same time the Court will keep in mind
that the petitioner-wife is entitled for free legal services. As a result of
the aforesaid discussion, the claim of the petitioner for sum of
Rs. 23,350/- towards litigation expenses, was held to be merit less. 2
Gujarat High Court has also taken the view that in view of
availability of legal aid, the wife is not liable to be awarded any
litigation expenses. It has held as under:
‘The petitioner may not know she is eligible for free legal aid but
the Advocate and the Presiding Officer of the Court in which the
matter was pending are suppose to know for this entitlement of
this litigant. A litigant who has been ordered to be granted
Rs. 2,000/- per month as maintenance, how she will bear out all
these expenses and wherefrom she has borne out all these
expenses and how in future she will borne out these expenses is a
matter of realisation. It is very very difficult for this lady and
equally very harsh on the part of the Advocate to put burden of
heavy litigation expenses over this poor lady more so when she is
entitled for free legal aid. This is not the only case but I am
seeing cases after cases where very sad stories are being told by
the litigants of this class either in the Court or in the Chamber
when the matters are being placed for conciliation proceedings.
There seems to be something wrong somewhere in our efforts to
make known to this class of litigants for their right to get free
legal aid. Though under Section 24 of the Hindu Marriage Act,
the husband is under legal obligation to bear out the expenses of
litigation of the wife but that is the Act of the year 1956. After
this Act of 1987 where this class of litigants are entitled for free
legal aid still a husband who belongs to lower middle class may
be saddled with all these costs or a question does arise whether he
is in a position to bear out such a luxurious litigation expenses of
1 Iqbal Singh Cheema vs. Adarsh Cheema, I (1982) DMC 282 All.
2 Sangitaben Rasiklal Jaiswal vs. Sanjaykumar Ratilal Jaiswal,
Mehsana, I (2001) DMC 19 Gujarat.
592 Law of Maintenance
the wife. Now after this Act of 1987 possibly and legitimately the
husband may not be made responsible for the litigation expenses
of he wife. However, this is not the matter to be considered at this
stage and decided in this case. I am only concerned with the
shocking facts which have come on record that how this class of
litigants are being exploited. I find fault with the system of which
I am also the part. It is unfortunate that despite of having all these
legal literacy camps. Lok Adalats etc. we are unable to give a
message and make known to this class of litigants that they are
entitled for free legal services. Out of the total population of the
country, very nominal percentage thereof are involved in
litigation. So what is important is that there must be some system,
method or modality to make known to this class of litigants about
their right of free legal aid at the State expenses. It is not
unknown and what our system is that on receipt of summons/
notices of proceedings of the Court, a litigant will do one thing to
approach to an Advocate. So the first duty falls on the Advocate
who has been approached by this class of litigant and more so a
class of litigant who is eligible for free legal services under
Section 12 of the Act, 1987 to make her known of the fact that
she may not engage him as she is entitled for free legal aid and
may approach to the concerned Authorities. This is required to be
done at the grass root level and where the two important persons
to give this message or to make known of this right to this class
of litigants are Advocate and the Judicial Officer concerned. If
the Advocate, a professional, does not give this information to the
litigant of this category or make know him/her of this right then it
comes on the Court on the first hearing of the case to make
known him/her of their entitlement of free legal aid. If such
category of litigant appears through an Advocate, it is the duty of
the Court also to ascertain and to make know to the litigant that
he/she is entitled for free legal aid. If it has been done then only
these programmes with be successful and beneficiaries thereof
will be benefited. The Courts know this but still these litigants
are not made known of their right of free legal aid.
The petitioner is entitled for free legal aid. She should have
approached to the Authority concerned for free legal services.
Merely because she was not knowing of her this right or it was
not being made known to her by the Advocate, this burden cannot
be put on the shoulder of the husband. It was the duty of the
Advocate when she approached to him to let her know that she is
entitled for free legal services. It is not done in Trial Court as
well as in this Court also, which is clearly borne out from the fact
her also she is appearing through a paid Advocate. In this Court
also, the Advocate should have made known to her that she is
entitled for free legal services. It is unfortunate that this
programme of free legal services is not successful to the extent to
what it should have been because of this non-cooperative attitude
of the members of the Bar. The judicial officers are also equally
Miscellaneous entitlement—Necessary expenses of the proceedings 593
Travelling expenses
In one case the petition for divorce had been filed at Pali and the
wife lived with her parents at Hyderabad in Andhra Pradesh. It was held
that in Indian Society, it is difficult to expect that a young lady should
travel all alone this long distance from Hyderabad to Pali without
accompanying with her of a near relative. Youth cannot travel alone. The
husband should bear the travelling charges of the wife from Hyderabad
to Pali on the dates on which she actually comes to Pali to defend the
petition for divorce and to that extent the cross-objection filed by the
wife was allowed. 2
In another case the Court had clearly directed that the Family
Court will insist on the husband not only depositing the to and fro travel
expenses for the wife and her companion but also an amount sufficient
for their stay in Bombay on each visit. Even according to the Family
Court the second class fare from Bombay Central to Delhi by mail train
and from Delhi to Ghaziabad comes to Rs. 326+Rs. 12 i.e. 338/- for two
persons. The Family Court, therefore, awarded Rs. 700/- by way of
expenses and added that she will be paid an additional amount of
Rs. 150/- per day if she has to stay for more then one day. To say the
least, the Family Court has been far from just to the wife who was
required to travel a long distance from Ghaziabad to Bombay Central to
defend herself. Nothing has been allowed by way of transport charges
and lodging and boarding charges even if she has not to stay for an
additional day in Bombay. Where does the Family Court expect her to
put up in Bombay after a 24 hour journey? If the case is adjourned it
seems it the Family Court expect her to leave on the same day post-haste
for Delhi. Even on reaching Bombay after a tiring journey of 14 hours
1 Priti Parihar vs. Kailash Singh Parihar (Flt. Lt.), AIR 1975 Raj 52
(DB): 1974 Raj LW 420.
2 Dharamichand vs. Sobha Devi, AIR 1987 Raj 159: (1987) 6 IJ Rep
203: (1987) 1 Rajasthan LR 481: 1987 Raj LW 363: (1987) 2 Hindu
LR 267.
Miscellaneous entitlement—Travelling expenses 595
she is not provided any expenses by way of hotel charges, lodge and
board, for the day. Does the Family Court expect her to rush the Court
from the station and rush back to station from the Court on the
proceedings being adjourned for the day? Even the meagre payment of
Rs. 150/- is made available to her if she has to stay in Bombay for an
additional day. Holding this amount to be unjust it was observed
as under:
‘The Family Court, with respect, also did not realize that it would
be impossible to find a modest living place for two for Rs. 150/-
per day in a costly like Bombay, leave aside the expenses for
meals, etc. It seems to us that the interim order passed by the
Family Court is, for reasons best known to it, highly based. This
is more so because it had before it this Court’s order granting
Rs. 2,500/- by way of expenses to visit Bombay which provided
sufficient guideline determining the quantum of expenses to be
awarded. Besides, the Family Court has not awarded any amount
to meet the cost of the proceedings on the specious plea that she
is gainfully employed. To say the least the order is far from
satisfactory and has resulted in gross denial of justice. The order
made it impossible for the wife to meet the expenses of frequent
visits to Bombay and facilitated an ex-parte divorce decree in
favour of the husband.’ 1
The cost of the litigation shall also include what is spent by the
applicant for travelling a distance from place of her residence to the
Court. In this case the applicant was residing at Amalner which was
admittedly at a distance of about 500 to 550 kms. from Buldhana. It was
observed as under:
‘Even now a day it is not possible for a woman to undertake such
a long and tedious journey and certainly she requires help of a
male person to accompany with her. If that is the case, it is
necessary that the non-applicant-husband should pay separately
the costs of travelling of the wife and any person who will be
accompanying her and also to pay some additional charges for
their dearness allowance. The trial Judge has certainly lost sight
of this particular aspect of the case. However, henceforth
direction is given to the trial Judge that he shall direct the non-
applicant to pay the additional amount as stated above to the
applicant-wife. However, in case if the adjournment is sought by
the wife or her Advocate on any ground, in that case she will not
be entitled to get the said amount of expenses from the husband.
1 Anita Laxmi Narayan Singh vs. Lami Narayan Singh, II (1992) DMC
202 SC.
596 Law of Maintenance
Written Application
The provision of the Act are for the purpose of dealing with the
matrimonial aspects of the spouses. The provisions embodied in the Act
in context with the alimony are benevolent. No strict rule has to be
applied in dealing with a prayer made by the wife in matrimonial cases
for getting alimony. Due important has to be given to the words “any
court exercising jurisdiction under this Act may at the time of passing
any decree or at any time subsequent there to”. These words mean that
the Court is empowered to consider the prayer of the wife in matrimonial
cases for permanent alimony at any time subsequent to be passing of the
decree. The total meaning of words used in Section 25 empowers the
court to grant permanent alimony to a wife in matrimonial cases in
absence of separate application, if such a prayer has been made by the
wife in the matrimonial petition itself. 2 It is submitted that the above
observation shall also apply to the other payments as well, which have
been discussed in this chapter.
1 Sadhana Deepak Naik vs. Deepak Laxman Naik, I (1993) DMC 112
Bom.
2 Kanahaiyalal vs. Chandabai, 1998(2) CCC 60 (MP).
Words & Phrases—Child 597
Chapter 15
Words & Phrases
SYNOPSIS
Introduction....................................597 Maintenance .................................. 607
Child...............................................597 Means ............................................ 608
Circumstances ................................598 Mother ........................................... 608
Decree ............................................598 Moveable property ........................ 608
During the proceedings..................599 Mutual Consent ............................. 609
Expenses.........................................600 Proceeding..................................... 610
Habitually resides with a concubine600 Property ......................................... 610
Having regards to ..........................600 Reasonable .................................... 610
His ..................................................601 Reasonable & fair provision ......... 611
Illicit relationship...........................602 Reside and residence ..................... 611
Income and means..........................602 Support .......................................... 612
Living in adultery ...........................602 Unable to maintain herself ............ 613
Living separately............................606 Waive ............................................. 613
Magistrate ......................................607 Wife................................................ 613
Introduction
Every branch of law has its own special vocabulary. It has some
time special and some time not so special definitions of the terms
frequently used in that branch of law. This chapter deals with such words
and phrases which are frequently used in this branch of law and have
been judicially considered, one way or the other.
Child
The fact that such an interpretation would be expedient and
convenient is not always a sure guide, as the legislature, if necessary,
can intervene to fill up any lacuna. In this view it was held that the
expression “child” in Section 488 Crl. P.C. while it postulates the
immediate relationship of the claimant for maintenance with the person
who is called upon to pay maintenance by the closely following neutral
pronoun “itself” signifies and emphasizes the infancy of the claimant.
The inability to maintain “itself” is related to infancy. The expression
“child” of course cannot be confined to a child of tender years, a person
598 Law of Maintenance
below 14 or 16, as has been contended for in some cases, since in that
case there can be no doubt about its inability to maintain itself. The
question of ability to maintain one-self can arise only in the case of
young persons during adolescence. The meaning of the word ‘child’ in
Section 488 must be taken to be a minor whether under the Indian
Majority Act or the Court of Wards Act or the Guardians & Wards Act
and, thus the court differed from the decisions which have taken the view
that any person who is unable to maintain himself or herself of whatever
age, without limit would be a child under Section 488, because he is a
child of his father. The result would be a son or daughter under 18 would
be a child under the Act and where a guardian is appointed by court, the
childhood for the purpose of Section 488 would continue during the non-
age or legal infancy, that is, till the completion of 21 years. 1
Circumstances
The “circumstances” contemplated by Section 489(1) of old Code
must include financial circumstances and in that view, the inquiry as to
the change in the circumstances must extend to a change in the financial
circumstances of the wife. 2
Decree
Marriage can be based on contract or, they can be based on
sacrament. No doubt, marriage as understood in civilized society was
mostly based on religious custom. Religion treated marriage as a
sacrament. Marriage were made in Heaven and, therefore, not capable of
being brought to an end by human beings. This almost universal idea
prevailed for a long period in Man’s history. This concept of divorce
existed even in Roman times and was certainly accepted by the Quran.
However, it was unknown to Hindu Law and it was also unknown to
Christian Law. A decree of divorce was originally granted by the Pope in
the form of divorce a vinculo matrimonii. No Court whatsoever, either
Civil or Criminal or Ecclesiastical could grant such a decree. King Henry
VIII of England was anxious to divorce his wife who was the sister of
the King of Spain. The Pope refused to oblige him, so Henry was forced
to form his own Church called the Church of England and was able to get
a divorce to marry Anne Boleyn. This divorce eventually led historically
to the concept of the Ecclesiastical Courts granting a divorce which was
generally known as a divorce a mensa at thoro. For a long time in
Expenses
The word “expenses” is a word of wider connotation and includes
“costs”, but is not limited to the costs that would be payable on a party-
and-party taxation under the rules of the Court. 1
Having regards to
The expression “having regard to” in Section 24 conveys a
mandate that the Court shall have regard to the income of the parties.
The expression “having regard to”, “have regard to” and other allied
expressions have been the subject of judicial interpretation by our apex
Courts. The expression “have regard to” in Section 168 of the Madras
Estated Land Act, 1908, came up for consideration before the Privy
His
It is true that Cl. (d) of section 125 of Criminal Procedure Code,
1973 has used the expression “his father or mother” but the use of the
word ‘his’ does not exclude the parents claiming maintenance from their
daughter. Section 2(y), Cr. P.C. provides that words and expressions
used herein and not defined but defined in the Indian Penal Code have
the meanings respectively assigned to them in that Code. Section 8 of the
Indian Penal Code lays down that the pronoun ‘he’ and its derivatives are
used for any person whether male or female. Thus, in view of Section 8,
IPC read with S. 2(y), Cr. P.C. the pronoun ‘his’ in Cl. (d) of S. 125(l),
Cr. P.C. also indicates a female. Section 13(1) of the General Clauses
Act lays down that in all Central Acts and Regulations, unless there is
anything repugnant in the subject or context, words importing the
masculine gender shall be taken to include females. Therefore, the
pronoun ‘his’ as used in Cl. (d) of S. 125(l) Cr. P.C. includes both a male
and a female. 1
Illicit relationship
The word illicit is defined in the dictionaries as: Unlawful; not
authorised or allowed; Not sanctioned by law, rule or custom. In other
words it is one which is not sanctioned by law, rule or custom. In this
scheme sexual indulgence is not essential though there may be a strong
possibility of its existence. 2
Living in adultery
The words used ‘living in adultery’ in sub-Section (4) of Section
123 Criminal Procedure Code are of limited amplitude, inasmuch as it is
for the husband to prove that the wife is continuously committing
1 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987
CrLJ 977: 1987 AIR (SC) 1100: 1987 CAR 87: 1987 (2) SCC 278:
1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553.
2 Kiran Sharma vs. Shardha Nand Sharma, I (1991) DMC 402 Delhi.
3 Gita Chatterjee vs. Probhat Kumar Chatterjee, II (1987) DMC 139
Calcutta: (1987) 2 Hindu LR 292: 1987 Cal LT (HC) 152: (1988) 92
Cal WN 302: (1988) 2 Hindu LR 20: (1988) 2 Civ LJ 416.
Words & Phrases—Living in adultery 603
1 Laksmi Ambalam vs. Andiammal, AIR 1938 Mad 66; Kista Pillai vs.
Amirthammal, AIR 1938 Mad 833.
2 Subramaniyam vs. Ponnakshiammal, AIR 1958 Mysore 41.
3 Patala Atchamma vs. Patala Mohalakshmi, ILR 30 Madras 332
4 Nesamma vs. Hentri, Kerala LT 964.
5 Mercy vs. Varghese, 1968 Ker. LT 154.
6 1979 Cri. LJ 741.
Words & Phrases—Living in adultery 605
Living separately
Living separate by mutual consent can not be equated with living
separate because of consent decree. The fact that the applicant consented
Magistrate
The words “the Magistrate” would mean the Magistrate who had
passed the first order of maintenance, because this interpretation is
strengthened by the fact that Section 128 Cr.P.C. which is the section for
enforcement of the order of maintenance specifically provides that such
petition under Section 125 Cr.P.C. may be presented before “any
Magistrate”. Therefore, in these circumstances the petition under Section
127 Cr.P.C. will have to be filed before the Magistrate who has passed
the first order of maintenance. 6
Maintenance
Heading of Section 24 of the Hindu Marriage Act, 1955 is
“Maintenance pendente lite and expenses of proceedings”. The section,
however, does not use the word “maintenance”, but it appears that the
words “support” and “maintenance” are synonymous. “Support” means
“to provide money for a person to live on”, like “he supports a family” or
“he supports his old mother”. Maintenance is “an act of meaning”, i.e. to
support with money. For example, “he is too poor to maintain
his family”. 1
Means
The expression “means” in Section 125 of the Code does not
signify only the visible income, such as, real property or regular source
of income or a definite employment. A person who is able-bodied and
who does not suffer from any physical or mental incapacity can be
considered as a person who has the capacity to earn sufficient income
because his physical and mental capacity provide him the capacity to
earn. Therefore, even if a person who has no definite source of income or
a regular source of income, he cannot escape his liability to
pay maintenance. 2
Mother
The words “his mother” includes natural mother and not step
mother. The right of the step mother in the coparcenary property does not
justify her claim under Section 125, Cr.P.C. It has for this reason that no
explanation was appended in this Section to show that even a step mother
is included within the connotation of mother. 3
Moveable property
The definition of “moveable property” given in the Penal Code, is
basically meant for the provisions contained in the Indian Penal Code
itself. The Penal Code classifies the offences under various heads. Many
of those heads deal with various items of moveable property. 4
When the framers of the Indian Penal Code were aware of and
were, in fact intending to provide for defining and penalising the
offences pertaining to moveable property, both tangible and intangible,
the connotation of the expression ‘moveable property’ ought to be
restricted to certain types of property when the intention was to deal with
tangible moveable property alone. This does not mean that the Indian
Penal Code, by itself, does not recognise the distinction between the
tangible moveable property and intangible moveable property at all.
When the Indian Penal Code itself does not do away with this distinction
and when it purports to deal with tangible moveable property under
1 Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10.
2 Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II
(1991) DMC 485 Guj.
3 Sarju Prasad vs. Damyanti, II (1984) DMC 251 All.
4 Bhagwat vs. Baburao, II (1994) DMC 195 Bombay.
Words & Phrases—Mutual Consent 609
Mutual Consent
“Mutual consent” as used in sub-section (4) of section 125 of
Criminal Procedure Code, 1973 means a consent on the part of the
husband and wife to live apart, no matter what the circumstances may be.
Where a wife refuses to live with the husband on some specific ground
such as cruelty, or the fact that he is keeping another wife, it cannot be
said that the husband and wife are living apart by mutual consent if the
husband does not insist that the wife should live with him. 3
The test therefore should be to find out if the agreement for
separate living and payment of maintenance was the outcome of the
desire of both parties, independently reached by each of them, or if one
of the parties was forced to submit by circumstances to such agreement.
Where the wife is not prepared to live in a separate house but insists on
living with the husband, but he starts living separate, or where the
husband having an option to live with his wife chooses to live separate,
it cannot be said that they are living separately by mutual consent. But
where each party finds it impossible to live amicably and comfortably
with the other and each party and there is consent that they should live
separately, the separate living is by mutual consent. 1
Proceeding
The word “proceeding does not have a fixed connotation with a
definite meaning attached to it. The ambit of the meaning of this phrase
will be governed by the context. The word “proceeding:” ordinarily
relates to forms of law, to the modes in which judicial transactions are
conducted. The word “proceeding” in a general sense means “the form
and manner of conducting of judicial officer”. 2 It can include within
itself suit, appeal and second appeal. In the context, the word
“proceeding” would include the appeal as well, particularly when for the
“proceeding”, the words “suit” has already been written. The intention of
the Parliament appears to be that even the appeals pending on the date of
enforcement of the Act, should be decided in accordance with the
amended law. 3 An appeal under Section 28 of the Act is a proceeding for
the purposes of Section 24 of the Act. 4
Property
It would be quite wrong and unjust to exercise that discretionary
power to enable her to do something by a side door which one could not
otherwise do. Therefore the pump sum payment can not be included in
the term property. 5
Reasonable
The expression “reasonable” is a relative term. What may be
reasonable in one case may not be necessarily reasonable in another case.
Reasonableness of the quantum of compensation has not to be
determined by merely having regard to the petitioner’s own income and
the income of the respondent but also by having regard, as far as may be,
to the standard of life maintained by the family to which the parties
belong. The rule that is no case maintenance should be granted at a rate
or more than one-fifth of the husband’s income is not only unreasonable,
but also irrational which may some time defeat the very object of
avoiding vagrancy; the reason d’etre of Section 30. 1
1 Rakesh Chandok vs. Vinod, II (1982) DMC 325 J&K.: AIR 1982
J&K 95: 1982 Srinagar LJ 127.
2 Spiller Limited vs. Cardiff (Borough) Assessment Committee and
Pritchard (Revenue Officer for the Cardiff Assessment Area),
(1931) 2 KB 21.
3 Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000)
DMC 634 Bombay.
612 Law of Maintenance
Support
Section 24 of Hindu Marriage Act, 1955 uses both terms,
“Maintenance” in the margin and “Support” in the body of the section.
The word “support” is doubtless one of the most elastic in the language.
“Maintenance” means the act of maintaining, and denotes the regular
supply of food, clothing and lodging, the provisions of the necessaries
and the conveniences of life. These will in each case depend in part on
the standing of the parties, their wealth and the environment to which
they in their married state have been accustomed, as every case will be
different and no case may be decided except upon its particular facts. 3
In Preeti Archana Sharma vs. Ravind Kumar Sharma, 4 it was
observed that “Section 24 uses the word “support” and does not uses the
Waive
The word ‘waive’ according Chambers 20 th Century Dictionary
means, “to put away, reject, to abandon, forsake to vacate, to resign: to
outlaw (a woman—her status in the eyes of the law being such that the
usual term was not applicable to her) (hist); to abandon (stolen goods):
to give up voluntarily, as a claim or a contention (law); etc”. Simply
because the wife has not claimed maintenance for a long period, it does
not mean that she has completely abandoned her right or voluntarily
given up her right to claim maintenance. 3
Wife
The term “wife” appearing in Section 125(1) of the Code means
only a legally wedded wife. 4 Section 5 of Hindu Marriage Act, 1955 lays
down, for a lawful marriage, the necessary condition that neither party
should have a spouse living at the time of the marriage. A marriage in
contravention of this condition, therefore, is null and void. Such
marriage must, therefore, be treated as null and void from its very
inception. The attempt to exclude altogether the personal law applicable
to the parties from consideration also has to be repelled. The section has
been enacted in the interest of a wife, and one who intends to take
benefit under sub-section (1)(a) has to establish the necessary condition,
1 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
2 Namitarani Bose vs. Dipak Kumar, II (1986) DMC 50 Orissa.
3 Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP.
4 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, II (1982)
DMC 434 Bombay.
614 Law of Maintenance
namely, that she is the wife of the person concerned. This issue can be
decided only a reference to the law applicable to the parties. It is only
where an applicant establishes her status or relationship with reference to
the personal law that an application for maintenance can be maintained. 1
Though wording used in the Explanation is ‘includes’, it does not
make the expression “wife” inclusive in the Explanation. The additional
categories of women sought to be covered by the explanation are
exhaustive, in the context. The word ‘includes’ has been used here to
mean “extends” to the categories mentioned in the Explanation. Even if
it is assumed that the categories of divorce women mentioned in the
Explanation are inclusive then also the Explanation cannot be held to
cover a woman against whom a decree of divorce has been obtained by
her husband, for the aforesaid incongruous situation it may lead to. The
Legislature cannot be deemed to have intended to enact a law which may
lead to an anomaly. 2