Karnataka High Court
Malan vs Baburao Yeshwant Jadhav on 2 September, 1980
Equivalent citations: ILR1980KAR1323, 1980(2)KARLJ414
JUDGMENT Desai, J.
1. These two revision petitions are directed against the order dated February 12, 1979, passed by the Judicial Magistrate First Class, III Court, Belgaum, in Cr. Misc. Case No. 91 of 1979 on his file under Section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the 'new Code'). The Code of Criminal Procedure 1898 will be hereinafter referred to as the 'old Code.'
2. The undisputed facts are that Malan the petitioner in Cr.R.P. 131/79 and respondent in Cr.R.P. No. 409/79 is the wife of Babu Rao, the respondent in Cr.R.P. No. 131/79 and the petitioner in Cr.R.P. No. 409/79. These parties will be hereinafter referred to as the 'wife' and husband.
3. The wife filed an application under Section 125 of the new Code praying that she is entitled to a monthly maintenance of Rs. 500/- as her husband has contracted marriage with another woman called Janabai and has neglected and refused to maintain her. She also alleged that her husband is the proprietor of the business run under the name and style as "Vishwanath Metal Mart" at Ganapathgalli, Belgaum and has a monthly income of Rs. 3,000/-. She has state that she has studied up to S.S.L.C. According to her, she has been living with her parents at Belgaum since about two years prior to the filing of the petition.
4. The husband resisted the petition by contending inter alia, that as his wife did not bear children he married Janabai with her consent; that as the wife started quarrelling with him and his second wife he has left his parental house and is residing separately with his parents till recently and a few days prior to the institution of this case she went to her parents house; that himself and his parents have not neglected to maintain her; that the allegations in her petition that the yearly turnover of his business is in lakhs is not true; that it is false to say that his income is not less than Rs. 3,000/- per month; that he belongs to a respectable family of Maratha community and that looking to his income and the amount he needs for the maintenance of himself, his second wife and his children he will be able to pay a monthly maintenance of Rs. 75/- to the wife.
5. The wife examined herself and three witnesses and produced Ex. P. 1 in support of her case. The husband examined himself and produced Exs. D-1 and D-2.
6. On the said material, the learned Magistrate held that the husband who has sufficient means has neglected or refused to maintain the wife; that the wife is unable to maintain herself and awarded maintenance at the rate of Rs. 250/- per months from the date of petition to the wife. Being aggrieved by the said order, the wife has preferred Cr.R.P. No. 131/79 for enhancement of the rate of maintenance and the husband has preferred Cr.R.P. No. 409/79 questioning the correctness and legality of the said order. The husband had filed Cr.R.P. No. 16/79 in the Court of the Sessions Judge, Belgaum, against the said order and the same has been transferred to this court for disposal along with Cr.R.P. No. 131/79 and after transfer, the said revision petition has been numbered as Cr.R.P. No. 409/79 on the file of this Court.
7. When the said petitions came up for hearing before our learned Brother Patil, J. it was contended on behalf of the husband that as the wife did not aver in her petition that she was unable to maintain herself and did not adduce any evidence to that effect, the order of maintenance passed by the learned Magistrate was without jurisdiction. On the other hand, it was contended on behalf of the wife that it is not for the wife claiming maintenance under Section 125, Cr.P.C. to make such an averment in the petition but, it is the duty of the learned Magistrate inquiring into the petition to record a finding that the wife is unable to maintain herself. The learned single Judge found that there is some divergence of opinion as expressed by this court in (a) Zubeda Bi v. Abdul Khader (1978 (2) Kant LJ 143) : (1978 Cri LJ 1555), (b) Abdul Munaf v. Salima, (1978 (2) Kant LJ 453) : (1979 Cri LJ 172) and (c) Haunsabai v. Balakrishna Krishna Badiger Cr.R.P. No. 135 of 1979, decided on 13-2-1980 : (1981 Cri LJ 110) and has therefore referred these petitions to a Division Bench.
8. The relevant portion of Section 125 of the new Code reads as follows :
"125. Order for maintenance of wives, children and parents - (1) if any person having sufficient means neglects or refused to maintain -
(a) his wife, unable to maintain herself; or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself."
9. The material part of Section 488 of the old Code is in these terms :
"488. Order for maintenance of wives and children -
(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child, unable to maintain itself, a Presidency Magistrate, or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs."
10. A comparative study of the provisions set out above would show that while in Section 488 of the old Code the condition "unable to maintain itself" apparently attached only to the child and not to the wife, in Section 125 of the new Code, this condition has been expressly made applicable to the case of wife. But, this recasting of the old provision does not signify any fundamental change in the law and it has been done merely to clarify and make explicit what was formerly implicit, as observed in Bhagawan Dutt v. Smt. Kamala Devi, (1974-2 SC WR 468) : (1975 Cri LJ 40).
11. Sections 125 to 128 of the new Code constitute one family. They have been grouped together in Chapter IX of the new Code under the caption, "order for maintenance of wives, children and parents". These provisions 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 wife, children and parents. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destitute on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence as observed in Bhagawan Dutt's case while considering the corresponding provision of the old Code.
12. In Ramesh Chander Kaushal v. Mrs. Veena Kaushal, , while considering the scope of Section 125 of the new Code, it is observed thus :
"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Art. 39. We have no doubt that Sections of statutes calling for construction by courts are not petrified print but virbrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts".
13. Bearing in mind the said principles, let us consider the contentions canvassed by the learned counsel for the parties. Mr. S. K. Joshi, learned counsel for the husband, contended that as the wife did not aver in her petition that she was unable to maintain herself and as she did not also adduce evidence to that effect the order of maintenance passed by the learned Magistrate is without jurisdiction. In support of his contention he has referred to the following decisions in - Manmohan Singh v. Smt. Mahindra Kaur, (1976 (2) Cri LJ 1664) (All); Zubedabi v. Abdul Khader, (1978 (2) Kant LJ 143) : (1978 Cri LJ 1555); Abdul Munaf v. Salima, (1978 (2) Kant LJ 453) : (1979 Cri LJ 172); Smt. Haunsa Bai v. Balakrishna Krishna Badiger, Cr.R.P. 135 of 1979 decided on 13-2-1980 : (1981 Cri LJ 110) by this Court. Gurumurtheyya Gangadharayya Muttinakantimath v. Smt. Prabhavati, Cr.R.P. No. 332 of 1979, decided on 20-2-1980 by this Court; Fakeerappa v. Smt. Laxmavva, Cr.R.P. No. 201 of 1979 decided on 12-3-1980 (Kant); Bhishambar Das v. Smt. Anguri, (1978 Cri LJ 385) (All).
14. In Manmohan Singh's case, 1976 (2) Cri LJ 1664 (All), it is held thus :
"Under Section 125(1)(a), Cr.P.C. 1973, maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband refused to maintain her but can only be granted to a wife who is unable to maintain herself. It may be pointed out that this is a departure from Section 488 of the Code of Criminal Procedure 1898 wherein every wife, whether she was able or was not able to maintain herself, was entitled to maintenance if she was neglected or not maintained by her husband. As it was not alleged by the opposite party in her application under Section 125, Cr.P.C. 1973 and it was also not stated by her in her statement recorded by the C.J.M. Dehradun that she was unable to maintain herself and no finding has been recorded by the C.J.M. Dehradun or the Sessions Judge, Dehradun that the opposite party was unable to maintain herself, the order of the C.J.M. Dehradun dated 3-8-1975 and the order of the Sessions Judge, Dehradun dated 2-9-1975 are clearly illegal."
15. In Zubedabi's case, 1978 Cri LJ 1555 (Kant), it is held thus :
"Adverting to the first point, it is obvious that Section 125 of the Code of Criminal Procedure makes it clear that the husband is required to maintain his wife who is unable to maintain herself. This is what Section 125(1)(a) clearly states. That being so, it is obvious that the petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and that he has neglected to maintain her. On going through the petition carefully, I find that though Smt. Zubedabi has averred in the petition that her husband has means and that he has nowhere whispered that she is unable to maintain herself. That being so, her husband in his statement of objections had no occasion to meet that point."
16. In Abdul Munaf's case, (1979 Cri LJ 172) (Kant), it is observed thus :-
"When the object of the two provisions viz., in the two codes is the same, I am of opinion that the attachment of the word 'unable' to the word 'wife' in Section 125(1)(3) of the new Code does not make any difference. It only means that the speedy remedy is available to a wife who is unable to maintain herself so that there should be prevention of vagrancy ........."
17. In Haunsa Bai's case, 1981 Cri LJ 110, it is observed thus :
"...... It cannot also be said that the expressions 'unable to maintain' used by the Legislature in its wisdom were superfluous or they were of no importance as was tried to be maintained by Mr. Thipperudrappa. I do not think the Legislature would have unnecessarily used such expression when they were not in the old Code. In view of the various social measures and the changed conditions of the society, the Legislature in its wisdom has probably thought it necessary that maintenance to a wife as provided under Section 125, Cr.P.C. should be provided only to a wife who is unable to maintain herself or has no sufficient means to maintain herself. The law as it stands has to be enforced, though it may in some cases work hardship on the wives. The petitioner-herein having failed to aver positively in her petition and substantiate it from the witness box that she was unable to maintain herself, the petition will have to fail."
18. In Gurumurtheyya's case, Cri. P. No. 332 of 1979, D/- 20-2-1980 (Kant), it is held thus :
"Admittedly, the wife had not averred positively in her petition that she was unable to maintain herself. No evidence was also led in to show that she was unable to maintain herself. The Magistrate was therefore not justified in awarding maintenance to the wife."
19. In Fakeerappa Paramappa Budihal's case, Cr. P. No. 201 of 1979, D/- 12-3-1980 (Kant), it is observed thus :
"It has been held that it is necessary for the wife to positively aver in her petition that she is unable to maintain herself coupled with the other allegations that the husband who has got sufficient means has neglected or refused to maintain her and that her mere say in court that she is not able to maintain herself is not sufficient."
20. In Bhishambar Das's case, 1978 Cri LJ 385, it is held thus :
"Under S. 125(1)(a) of the Cr.P.C. maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband refuses to maintain her, but can only be granted to a wife who is unable to maintain herself. In the present case, opposite party No. 1 has not mentioned in her petition that she is unable to maintain herself. In her statement also she did not say so. All that she said was that she was maintaining herself with some difficulty. This is not tantamount to her being unable to maintain herself ......"
21. As against the above, Mr. Mandagi, learned counsel for the wife, urged that Section 125 of the new Code does not require that the wife should specifically plead in her petition that she is unable to maintain herself and so merely because the wife has not pleaded in her petition like that, her petition cannot be dismissed. He also urged that as the petition under Section 125 of the new Code is to be decided in accordance with the procedure laid down in Chapter IX of Cr.P.C. the provisions of Code of Civil Procedure are not applicable and therefore, the strict rules of pleadings incorporated in Orders 6, 7 and 8 of the Code of Civil Procedure are inapplicable to the said proceedings. In support of his said contentions, he relied upon a decision in Norbet Kispatta v. Mst. Tersa Kerketa, (1971 Cri LJ 1496) (Orissa). In that case, while considering the scope of Section 488 of the old Code, it is observed thus :
"An application under Section 488, Criminal P.C. is not a complaint within the meaning of Section 4(c) of the Code and a person against whom such an application under S. 488, Criminal P.C. is made is not charged with and tried for any offence, and so he is not in the position of an accused in such a proceeding. It is well settled that the imprisonment prescribed under Section 488(3), Criminal P.C. is not a punishment but is merely a means of enforcing the payment of the maintenance ordered by the Court. That is why the relief given under Chapter XXXVI is considered to be of civil nature. But all the same the proceedings under the said Chapter are not civil proceedings so as to attract the provisions of the Civil P.C. as the said proceedings are wholly governed by the provisions of the Criminal P.C. That being so, the provisions of Orders VI, VII and VIII, Civil P.C. relating to pleadings in a civil suit, do not apply to a petition under S. 488, Criminal P.C."
22. Section 125 of the new Code does not require that the wife should plead in her petition that she is unable to maintain herself. The relief given under Chapter IX of the new Code may be said to be of civil nature in view of the decision in Nand Lal v. Kanhaiya Lal, . The enquiry under Chapter IX of the new Code may be said to be of a quasi-criminal one in view of the decision in Dr. T. K. Thayumanuvar v. Asanambal Ammal, (AIR 1958 Mys 190) : (1958 Cri LJ 1522). But, the fact that the said petition has to be decided in accordance with the procedure laid down in Chapter IX of the new Code which is self-contained cannot be disputed. If that is so, the strict rules of pleadings applicable to the pleadings in a civil suit cannot be applied to a petition under Section 125 of the new Code. Hence, merely because the wife has not averred in her petition that she is unable to maintain herself, her petition cannot be dismissed. It in for both the parties to adduce evidence on that point and it is for the court to decide whether the wife is able or unable to maintain herself.
23. On a reading of Section 125 of the new Code, it is clear that the wife is only required to prove neglect or refusal by the husband. That is also the view taken by the Supreme Court in Bai Tahira v. Ali Hussain Fissalli Chothia, . In that case it is observed thus :
"Section 125 requires as a sine qua non for its application, neglect by husband or father. The Magistrate's order proceeds on neglect to maintain; the Sessions Judge has spoken nothing to the contrary; and the High Court has not spoken at all. Moreover, the husband has not examined himself to prove that he has been giving allowance to the divorced wife. His case, on the contrary, is that she has forfeited her claim because of divorce and the consent decree. Obviously, he has no case of non-neglect. His plea is his right to ignore. So the basic condition of neglect to maintain is satisfied. In this generous jurisdiction a broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof."
Hence, we are clearly of the view that instead of the wife proving the negative it is for the husband to prove that the wife is able to maintain herself as it is a defence open to him.
24. In the instant case, the wife has stated in her evidence that she has no income; that she needs the amount for her food and clothes; and that she has no residence. The learned Magistrate on proper appreciation of evidence on record has held that the wife is unable to maintain herself. Mr. Joshi, learned counsel for the husband, urged that as the wife had studied up to S.S.L.C. and as she did not suffer from physical or mental disability, she must be held to be able to earn. We are unable to agree with him for, ability to earn requires something more than a fit state of mind and body. It requires opportunity to earn education, experience and financial push and pull. If these are not available to a able bodied person then however capable physically or mentally she may be, she should be considered as a person who is not able to earn. Now-a-days it is difficult even for double Graduates to get employment and so, the wife who is now about 38 years old, cannot be expected to be employed anywhere. Even if we accept the contention of the husband that he has purchased a site in the name of the wife as true, in view of the sale deed produced by him in this court, it will not be of any avail to the husband, for, it is admitted that the said land is not yielding any income. Hence, we agree with the conclusion of the learned Magistrate that the wife is unable to maintain herself.
25. The learned Magistrate has also held that the husband has neglected and refused to maintain the wife and that the wife is justified in refusing to live with the husband as he has admittedly taken a second wife. Admittedly the respondent is running a shop under the name and style as "Vishwanath Metal Mart". Formerly, he was running the said business along with his father. He has also admitted that the turnover of his business is three lakhs, that he owns a scooter and that he pays rent of Rs. 115/- per month in respect of the shop building where he is running his business. The husband has not stated in his evidence that he has sustained loss in his business or that he was in debts. In view of the said admissions and the income-tax assessment order (Ex. P-1), the learned Magistrate has concluded that the husband was earning Rs. 3,000/- per month. In this court, the husband has produced the income-tax assessment order for the year 1978-79 which shows that his net profit was Rs. 6,000/-. He has also produced in this court a photostat copy of the assessment order for the year 1979-80. The assessment orders cannot be said to be a conclusive piece of evidence regarding the income of the husband especially, as the husband must be held to be interested in suppressing his income with a view to evade income-tax. The husband has also produced a letter written by the Branch Manager, Union Bank of India, Belgaum, to show that he is in debts. It is not known when he has incurred those debts and for what purpose. The wife will have no opportunity of meeting them as they are produced at this late stage. On the material on record, the amount of maintenance of Rs. 250/- per month awarded to the wife by the learned Magistrate cannot be said to be excessive regard being had to the status of the family and the circumstances prevailing at Belgaum and the present value of rupee. It cannot also be said that the said amount is insufficient for the maintenance of the wife and we find no ground for enhancing the same.
26. In the result, both the revision petitions are dismissed.
27. Petitions dismissed.