Gujarat High Court
Dipikaben Bhagirathbhai ... vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/520/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (FOR MAINTENANCE) NO. 520 of
2017
==========================================================
DIPIKABEN BHAGIRATHBHAI BANKER(SHUKLA) & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR AM PAREKH, ADVOCATE for the Applicant(s) No. 1-2
MS SHRUTI PATHAK, APP for the RESPONDENT(s) No. 1
MR. AUM M KOTWAL, ADVOCATE for the Respondent(s) No. 2
RULE SERVED BY DS for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/05/2017
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 16th July 2016 passed by the learned Judge, Family Court No.3, Ahmedabad, in Criminal Misc. Application No.2288 of 2015 filed by the applicants herein for maintenance under Section 125 of the Code of Criminal Procedure, 1973.
It appears from the materials on record that the applicants herein filed an application under Section 125 of the Code of Criminal Procedure, 1973, for maintenance. The said application came to be partly allowed. The learned Judge of the Family Court took the view that as the applicant no.1, i.e. Page 1 of 11 HC-NIC Page 1 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER the wife, is educated and earning, she is not entitled to claim maintenance from her husband. In such circumstances, the claim of the wife came to be turned down. However, the minor daughter was awarded Rs.5,000=00 per month towards the maintenance. In such circumstances referred to above, the wife being dissatisfied with the order passed by the Family Court is here before this Court, questioning the legality and validity of the impugned order.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the court below committed any error in passing the impugned order.
In my view, the court committed a serious error of law resulting in miscarriage of justice. The wife may be earning in thousands, but that would not absolve the husband from his legal liability to maintain his wife.
The Supreme Court in the case of Bhuwan Mohan Singh v. Meena, reported in 2014 Criminal Law Journal 3979, observed as under :
"3. Be it ingerminated that Section 125 of the Code of Criminal Procedure (for short the Code) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life dust unto dust. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.
8. At the outset, we are obliged to reiterate the principle of law how a proceeding under Section 125 of the Code has to be dealt with by the court, and what is the duty of a Family Court after establishment of such courts by the Family Courts Act, 1984. In Smt. Dukhtar Jahan v. Mohammed Farooq1, the Court opined that proceedings under Section 125 of the Code, 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.
9. A three-Judge Bench in Vimla (K.) v. Veeraswamy (K.)2, while discussing about the basic purpose under Section 125 of the Code, opined that Section 125 of the Code 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.
10. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat and another3, while adverting to the dominant purpose behind Section 125 of the Code, ruled that:Page 3 of 11
HC-NIC Page 3 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER "While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation."
11. In Chaturbhuj v. Sita Bai4, reiterating the legal position the Court held: -
"Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal5 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat."
12. Recently in Nagendrappa Natikar v. Neelamma7, it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children.
13. The Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. A three-Judge Bench in K.A. Abdul Jaleel v. .A. Shahida, Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER while highlighting on the purpose of bringing in the Family Courts Act by the legislature, opined thus: -
"The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith."
14. The purpose of highlighting this aspect is that in the case at hand the proceeding before the Family Court was conducted without being alive to the objects and reasons of the Act and the spirit of the provisions under Section 125 of the Code. It is unfortunate that the case continued for nine years before the Family Court. It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc. Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER
15. While dealing with the relevant date of grant of maintenance, in Shail Kumari Devi and another v. Krishan Bhagwal Pathak alias Kishun B. Pathak9, the Court referred to the Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001) and came to hold that even after the amendment of 2001, an order for payment of maintenance can be paid by a court either from the date of order or when express order is made to pay maintenance from the date of application, then the amount of maintenance may be paid from that date, i.e., from the date of application. The Court referred to the decision in Krishna Jain v. Dharam Raj Jain wherein it has been stated that to hold that, normally maintenance should be made payable from the date of the order and not from the date of the application unless such order is backed by reasons would amount to inserting something more in the sub-section which the legislature never intended. The High Court had observed that it was unable to read in sub-section (2) laying down any rule to award maintenance from the date of the order or that the grant from the date of the application is an exception. The High Court had also opined that whether maintenance is granted from the date of the order or from the date of application, the Court is required to record reasons as required under sub-section (6) of Section 354 of the Code. After referring to the decision in Krishna Jain (supra), the Court adverted to the decision of the High Court of Andhra Pradesh in K. Sivaram v. K. Mangalamba11 wherein it has been ruled that the maintenance would be awarded from the date of the order and such maintenance could be granted from the date of the application only by recording special reasons. The view of the learned single Judge of the High Court of Andhra Pradesh stating that it is a normal rule that the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance was not accepted by this Court. Eventually, the Court ruled thus: -
"43. We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in sub-section (1) of Section 125 of the Code in absence of express provision to that effect."
16. In the present case, as we find, there was enormous delay in disposal of the proceeding under Section 125 of the Code and most of the time the husband had taken adjournments and some times the court dealt with the matter showing total laxity. The wife sustained herself as far as she could in that state for a period of nine years. The circumstances, in our considered opinion, required grant of maintenance from the date of application and by so granting the High Court has not committed any legal infirmity. Hence, we concur with the order of the High Court. However, we direct, as prayed by the learned counsel for the respondent, that he may be allowed to pay the arrears along with the maintenance awarded at present in a phased manner. Learned counsel for the appellant did not object to such an arrangement being made. In view of the aforesaid, we direct that while paying the maintenance as fixed by the learned Family Court Judge per month by 5th of each succeeding month, the arrears shall be paid in a proportionate manner within a period of three years from today."
In the case of Minakshi Gaur v. Chitranjan Gaur, reported in AIR 2009 SC 1377, the Supreme Court observed as under:-
"According to the case of the appellant, her husband, who is Respondent No.1 herein, is a graduate in Engineering and his income is Rupees twenty thousand. In the counter affidavit filed before this Court, the fact that the income of the husband is Rupees twenty thousand per month has not been denied. However, it has been asserted that wife's returned income is Rs.98,820/- per annum, which shows that she was earning even less than Rupees nine thousand per month. Both the wife and husband are residing at Agra. In our view, it is not possible for the wife to maintain herself in the town of Agra with the income of less than Rupees Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER nine thousand per month. The husband, who is earning at least Rupees Twenty thousand per month, as stated by the appellant in this appeal and not controverted, is liable to pay some amount of maintenance to the wife so that she may be able to maintain herself. In the facts and circumstances of the case, we are of the view that it would be just and expedient to direct the husband to pay Rupees five thousand per month to the wife by way of maintenance from the date of filing of the petition under Section 125 Cr.P.C."
In the case of Chaturbhuj v. Sita Bai, reported in 2008 Criminal Law Journal 727, the Supreme Court observed as under:-
"5. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr. P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the Constitution). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).
6. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means.
Page 8 of 11
HC-NIC Page 8 of 11 Created On Sat May 06 01:30:53 IST 2017
R/SCR.A/520/2017 ORDER
7. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself.
8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi (AIR 1975 SC
83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C."
In a very recent pronouncement of the Supreme Court in the case of Shamima Farooqui v. Shahid Khan, reported in 2015 Law Suit (SC) 314, it has been observed in para 15 as under:-
"15. ........ In todays world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 Cr. PC is for amelioration of Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wifes right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right."
Thus, the decisions of the Supreme Court referred to above lay down the proposition of law that even if the wife is earning or has the capacity of earning, that by itself will not absolve the husband from his liability to pay the requisite maintenance under Section 125 of the Code of Criminal Procedure.
In the result, this application is allowed. The impugned Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat May 06 01:30:53 IST 2017 R/SCR.A/520/2017 ORDER order in so far as it rejected the claim of the wife for maintenance is concerned, is quashed. The matter is remitted to the court of the learned Judge, Family Court No.3, Ahmedabad, for a fresh decision in accordance with law keeping in mind what has been observed above.
It shall be open for both the parties to put forward all the contentions available in law, except the contention that the wife is earning. Fresh decision shall be taken at the earliest preferably within a period of six weeks from the date of receipt of this order.
Rule made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat May 06 01:30:53 IST 2017