Orissa High Court
Banshidhar Mohanty vs Smt. Jyoshnarani Mohanty on 13 May, 2002
Equivalent citations: AIR2002ORI182, I(2003)DMC270, 2002(II)OLR15, AIR 2002 ORISSA 182, (2003) 1 DMC 270, (2002) 3 CIVILCOURTC 397, (2003) 1 HINDULR 441, (2003) 1 MARRILJ 128, (2003) MATLR 163, (2002) 2 ORISSA LR 15, (2003) 1 RECCIVR 108, (2003) 1 CIVLJ 34, (2002) 94 CUT LT 329
Author: P.K. Tripathy
Bench: P. Ray, P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. Human relationship is based on personal and social bondage but sometimes it shatters due to defection. A matrimonial relationship according to the personal law of Hindus is a sacred, firm but tender relationship. When it cracks because of misunderstanding or dispute between the spouses on any ground provided in the matrimonial law that results in either a decree for restitution of conjugal right, judicial separation or divorce. When that is not adhered to by the parties then claim for maintenance if made is settled either amicably or as per the decision of the Courts on the basis of statutory provisions governing the parties. The present dispute belongs to the latter category.
2. The wife/respondent in her mid-fifties in 1995 filed the application for maintenance under the Hindu Adoptions and Maintenance Act, 1956 (in short "Act, 1956") registered as Civil Proceeding No. 57 of 1995 in the Court of Judge, Family Court, Cuttack. She having been granted maintenance under Section 125, Cr.P.C. in an earlier occasion in Criminal Misc. Case No. 7 of 1975 also prayed for enhancement of maintenance under Section 127, Cr.P.C. which was registered as Criminal Proceeding No. 499 of 1995. Learned Judge, Family Court, Cuttack as per the impugned judgment dated 23.9.1997 heard analogously and disposed of both the applications by a common judgment granting maintenance at the rate of Rs. 500/-{five hundred) per month to the respondent in accordance with the provision under the Act, 1956 and in view of that the Family Court rejected the claim for enhancement of maintenance under Section 127, Cr.P.C.
3. A brief sketch of the dispute between the parties which had been noted in the impugned judgment and neither controverted in the appeal memo nor at the time of argument reveals that there was fall out between the spouses i.e., the opposite party/appellant who is the husband and the petitioner/respondent who is the wife. That fall out was on account of allegation by the wife against the husband for keeping a concubine during the subsistence of their marriage. The above noted strained relationship as claimed by the wife, led her to live separately from her husband since 1964 along with her the then minor son who has become a major one by now. That separate living still continues. As noted above, her application under Section 125, Cr.P.C. vide Criminal Misc. Case No. 7 of 1975 was allowed granting her maintenance at the rate of Rs. 155/-. The quantum of maintenance was enhanced to Rs. 270/-per month as per Order under Section 127 passed by the Magistrate on 2.9.1989. By then the appellant-husband was in service. Her application for maintenance and enhancement for maintenance, respectively under the Act, 1956 and Cr.P.C. was filed after the retirement of her husband from service on the sole ground of insufficiency of the quantum of Rs. 270/- per month to maintain her livelihood because of rise of the cost of living. The appellant-husband defended the motion by advancing the plea of retirement and getting a meagre amount of rupees nine hundreds and odd towards the provisional pension. At the time of analogous hearing of the cases both the parties examined each of them as the solitary witness to prove and counter the claim for maintenance at an enhanced rate. Thus, the respondent was examined as P.W. 1 and the appellant was examined as O.P.W. 1. On assessment of such evidence and keeping in view the above facts and circumstances besides the quantum which the appellant received towards the pension/entitled to receive towards the pension, learned Judge, Family Court vide the impugned judgment passed an order directing the appellant to pay a monthly maintenance as the rate of Rs. 500/- per month with effect from March, 1995 on the basis of her claim in the Civil Proceeding. Appellant challenges that order before this Court.
4. A sum total of the ground advanced by the appellant in challenging the said order of maintenance in that he was asked to pay a monthly maintenance of Rs. 270/- while he was in service, so fixation of the same at Rs. 500/- after his retirement is against the law and equity. He has also stated that there are numbers of dependants including wife and school going children who need support from him for their maintenance. Accordingly, appellant prays to reduce the quantum of maintenance to Rs. 270/-.
5. According to the provision in Section 18 of the Act, 1956 a Hindu wife is entitled to be maintained by her husband during her life time subject to fulfilling any of the requirements provided under Sub-section (2) and (3). For the purpose of this case, clauses (a) and (e) of Section 18(2) are the two grounds which have been put forth by the respondent. The said provision is quoted herein below :
Sub-sections (2) and (3) of Section 18 :
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance :
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her:
(b) *** *** ***
(c) *** *** ***
(d) *** *** ***
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere ;
(f) *** *** *** (g) *** *** ***
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion."
The other three provisions relating to maintenance are Sections 19 to 21 of the Act, 1956. Section 19 provides for grant of maintenance to widowed daughter-in-law, Section 20 provides for maintenance to children and aged parents and in that provision an illegitimate child has also been made entitled to claim maintenance from his or her parents so long as the child is a minor. Section 21 defines the dependants but that does not include a concubine.
Keeping in view the provisions of law as noted above when the pleading of the parties is looked into it is seen that in his written statement the appellant has stated nothing about he having a dependent illegitimate child or children through the lady, allegedly, who lives with him as his mistress, No particulars of such child or children relating to their age etc. is mentioned in the written statement. Even in his evidence the appellant is completely silent about that. Therefore, the Court below had to consider the case for fixation of quantum of maintenance on the basis of the pleadings and evidence on record read with the provision in Section 23 of the Act, 1956. Section 23 provides that fixation of the quantum of maintenance shall be in the discretion of the Court but while exercising such discretion Court shall have due regard to the factors which have been enumerated in Sub-section (2) of Section 23, Sub-section (2) in that respect provides that position and status of the parties, reasonable wants of the claimant, justification for separate living, sources of earning and quantum earned besides the number of persons entitled to maintenance under the Act are the relevant factors which are to be considered by the Court while fixing the quantum of maintenance. In that respect, as noted above, neither the pleading nor the evidence is available relating to any other dependent of the appellant other than the respondent who is at present legally entitled to claim for maintenance. That being so, on a reference to the evidence of the appellant as O.P.W. No. 1 it is seen 7that he has stated in paragraph 4 of his deposition that :
"my provision (it should be provisional) pension has been fixed at the rate of Rs. 1334/- per month. I expect pension at the rate of Rs. 2,400/- to 2,500/-per month after these legal complications are over. The price index of essential commodities prevailed in the year 1989 has gone up during these years. I also personally feel that amount of Rs. 270/- shall be insufficient for maintenance of my wife. I express my inability to cope with said hike in view of the changed circumstance that I am no longer in Government service."
When the evidence of the appellant stands thus in the appeal memo while challenging the impugned order of maintenance relating to the quantum, appellant has mentioned in ground No. (C) as follows :
"For that the learned Court below committed error by allowing more than one third of the pension amount as maintenance, when it is settled law that the wife is entitled to maintenance not more than one third of the income of the husband."
6. It thus appears from the aforesaid ground that the appellant has no objection to grant a quantum of maintenance which should be equivalent to one third of his pension amount. Even if the above quoted ground No. (C) is not constructed or considered that way then also respondents entitlement to a higher rate of maintenance is available to her on the basis of evidence on record. If his above quoted evidence relating to the provisional pension which was temporary in nature and his would be pension, which might have been granted to him in the meantime, would be considered then fixation of the quantum of maintenance at the rate of Rs. 500/- per month, as per the impugned judgment neither appears to be excessive nor unreasonable. For the said reason the impugned order is unassailable.
7. The fact scenario noted in this judgment takes note of the fact that an order of maintenance at the rate of Rs. 270/- has been awarded in favour of the respondent as per the provision under Section 125 read with Section 127 Cr.P.C. While disposing' of the cases, learned Judge, Family Court did not observe as to what will happen to the order of maintenance granted under the provisions in Cr.P.C. An order for maintenance under Section 125, or maintenance at a enhanced rate under Section 127(1), Cr.P.C. is executable until that is cancelled or varied in accordance with the provision in Sub-section (2) of Section 127, Cr.P.C. According to the provision in Section 125(1), Cr.P.C., a wife who is unable to maintain herself is entitle to claim for maintenance. Therefore, when the respondent has been granted maintenance under the provision of the Act, 1956, she is no more legally entitled to claim for maintenance under Section 125, Cr.P.C. Therefore, if so advised, appellant may file appropriate application to cancel that order of maintenance with effect from the date when the respondent has been granted decree under the Act, 1956. If such an application shall be filed within two months, then it is observed that the order of maintenance shall be cancelled from appropriate date and strictly in accordance with law.
8. In the result, the appeal against the order of maintenance under the Act 1956 stands dismissed with costs. Hearing fee is assessed at contested scale.
P. Ray, J.
9. I agree.