Himachal Pradesh High Court
____________________________________________ vs Smt. Sainu And Another on 31 December, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.M.M.O. No. 301 of 2015
Date of decision: 31st December, 2015
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____________________________________________
Dayalu Ram Petitioner
Versus
Smt. Sainu and another Respondents
_______________________________________________
Coram :
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, J.
Whether approved for reporting ?
rt
_______________________________________________
For the Petitioner : Mr. B.N. Sharma, Advocate
For the Respondents: Mr. Varun Rana, Advocate
_______________________________________________
Tarlok Singh Chauhan, J. (Oral)
This petition under Section 482 of the Code of Criminal Procedure is directed against the judgment passed by the learned Additional Sessions Jude (II), Shimla on 12.12.2014, whereby he allowed the revision filed by the respondents and awarded a sum of Rs. 1500/- as maintenance to respondent No 1. It is vehemently contended by Mr. B.N. Sharma, learned counsel for the petitioner, that once the petitioner had provided a house ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 2 Cr.M.M.O. No. 301 of 2015 and orchard to the respondents, there was no reason for the learned Court below to have awarded maintenance as sine qua non for maintaining an application under Section 125 .
of the Code of Criminal Procedure is that the petitioner must be one who is "unable to maintain herself".
I have heard learned counsel for the parties and also gone through the record of the case.
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2. At the outset, it my be noticed that the relationship of husband and wife inter se the parties is not rt denied. If that be so, then it is not only the moral obligation, but a legal duty of a husband to maintain his wife by providing food, clothes and shelter, if not anything more. The law on the subject has been dealt in Vipul Lakhanpal Vs. Pooja Sharma and connected matter 2015 (3) Him. L.R. 1529, wherein it has been held as under:-
"8. The oldest case decided on the subject is one in Khetramani Dasi v. Kashinath Das, (1868) 2 Bengal LR 15. There, the father -in-law was sued by a Hindu widow for maintenance. Deciding the right of the widow for maintenance, the Calcutta High Court referred to the Shastric law as under:
"The duty of maintaining one's family is, however, clearly laid down in the Dayabhaga, Chapter II, Section XXIII, in these words:::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 3 Cr.M.M.O. No. 301 of 2015
'The maintenance of the family is an indispensable obligation, as Manu positively declares.' Sir Thomas Strange in his work on Hindu Law Vol. I page 67, says:
'Maintenance by a ma n 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 th is respect are his children the of only objects, co-extensive as it is with the family whatever be its composition, as consisting of other relations and connexions, including (it may be) rt 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."
At page 21, the learned Judges have also referred to a situation where there is nothing absolutely for the Hindu widow to maintain herself from the parents-
in-law's branch by referring to the following texts from NARADA:
"In Book IV, Chapter I Section I, Art. XIII of Celebrooke's Digest, are the following texts from NARADA:
'After the death of her husband, the nearest kinsman on his side has authority over a woman who has no son; in regard to the expenditurte of wealth, the government of herself, and her maintenance, he has full dominion. If the husband's family be extinct, or ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 4 Cr.M.M.O. No. 301 of 2015 the kinsman be unmanly, or destitute of means to support her, or if there is no Sapindas, a kinsman on the father's side shall have authority over the woman; and the comment on this passage is : "'Kinsman on the husband's side; of his father's or .
mother's race in the order of proximity. 'Maintenance' means subsistence. Thus, without his consent, she may not give away anything to any person, nor indulge herself in matters of shape, taste, small, or the like, and if the means ofsubsistence be of wanting he must provide her maintenance. But if the kinsman be unmanly (deficient in manly capacity to discriminate right from wrong) or destitute of means rt to support her, if there be no such person able to provide the means of subsistence, or if there be no SAPINDAS, then any how, determining from her own judgment on the means of preserving life and duty, let her announce her affinity in this mode : 'I am the wife of such a man's uncle; 'and if that be ineffectual, let her revert to her fat her's kindred; or in failure of this, recourse may be had even to her mother's kindered" (Emphasis supplied.) In Book III, Chapter II, Section II, Art. CXXII, of Colebrooke's Digest, we have the following texts and comments:
"She who is deprived of her husband should not reside apart from her father, mother, son, or brother, from her husband's father or mother, or from her maternal uncle; else she becomes infamous."
As per the above texts and comments, a Hindu widow if the parents-in-law's branch is unmanly or ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 5 Cr.M.M.O. No. 301 of 2015 destitute of means to support her is entitled to be with the father or the kinsman on the father's side.
9. In Janki v. Nand Ram, (1889) ILR 11 All 194 (FB), a Hindu widow after the death of her father-in-law sued her brother-in-law and her father -in-law's .
widow. The Full Bench of the Allahabad High Court held that the father-in-law was under a moral, though not legal, obligation not only to maintain his widowed daughter-in-law during his life time, but also to make provision out of his self -acquired of property for her maintenance after his death; and that such moral obligation in the father became by reason of his self acquired property having come by rt inheritance into the hands of his surviving son, a legal obligation enforceable by a suit against the son and against the property in question. While so deciding, the learned Judges at page 210 made a reference to a passage from Dr. Gurudas Banerjee's Tagore Law Lectures, thus:
"We have hitherto been considering the claim of a widow for maintenance against the person inheriting her husband's estate. The question next arises how far she is entitled to be maintained by the heir when her husband leaves no property and how far she can claim maintenance from other relatives. The Hindu sages emphatically enjoin upon every person the duty of maintaining the dependant members of his family. The following are a few of the many texts on the subject:--
MANU: 'The ample support of those who are entitled to maintenance is rewarded with bliss in heaven; but hell is the portion of that man whose ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 6 Cr.M.M.O. No. 301 of 2015 family is afflicted with pain by his neglect: therefore let him maintain his family with the utmost care.' NARADA: 'Eventhey who are born, or yet unborn and they who exist in the womb, require funds for subsistence; deprivation of the means of subsistence .
is reprehended.' BRIHASPATI: 'A man may give what remains after the food and clothing of his family, the giver of more who leaves his family naked and unfed, may taste honey at first, but still afterwards find it poison.' "
of The text of MANU as added reads:
"He who bestows gifts on strangers, with a view to worldly fame, while he suffers his family to live in rt distress, though he has power to support them, touches his lips with honey, but swallows poison; such virtue is counterfeit: even what he does for the sake of his future spiritual body, to the injury of those whom he is found to maintain, shall bring him ultimate misery both in this life and in the next."
Having so quoted the texts, the Full Bench based its judgment on the proposition:
"......under the Hindu law purely moral obligations imposed by religious precepts upon the father ripen into legally enforceable obligations as against the son who inherits his father's property."
10. In Kamini Dassee v. Chandra Pode Handle, (1890) ILR 17 Cal 373, it is held by the Calcutta High Court that the principle that an heir succeeding to the property takes it for the spiritual benefit of the late proprietor, and is, therefore, under a legal obligation to maintain persons whom the late proprietor was morally bound to support, has ample ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 7 Cr.M.M.O. No. 301 of 2015 basis in the Hindu law of the Bengal School and accordingly decreed the suit for maintenance laid by a widowed brother against her husband's brothers.
11. In Devi Prasad v. Gunvati Koer, (1894) IL R 22 Cal 410, deciding an action brought for maintenance .
by a Hindu widow against the brothers and nephew of her deceased husband after the death of her father
-in-law, the Calcutta High Court held that the plaintiff's husband had a vested interest in the ancestral property, and could have, even during his of father's life time, enforced partition of that property, and as the Hindu law provides that the surviving coparceners should maintain the widow of a deceased
12. rt coparcener, the plaintiff was entitled to maintenance.
In Bai Mangal v. Bai Rukmini, (1899) ILR 23 Bom 291, the statement of law of MAYNE that "After marriage, her (meaning the daughter's)maintenance is a charge upon her husband's family, but if they are unable to support her, she must be provided for by the., family of her father." was understood to have been one of monetary character than laying down any general legal obligation. The learned Judge, Ranede, J., after examining all the authorities has broadly laid down the law, as he understood, thus:
"In fact, all the text writers appear to be in agreement on this point, namely, that it is only the unmarried daughters who have a legal claim for maintenance from the husband's family. If this provision fails, and the widowed daughter returns to live with her father or brother, there is a moral and social obligation, but not a legally enforceable right ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 8 Cr.M.M.O. No. 301 of 2015 by which her maintenance can be claimed as a charge on her father's estate in the hands of his heirs." (page
295).
13. However, the same learned Judge, Ranede, J., in a later case in Yamuna Bai v. Manubai, (1899 ILR 23 .
Bom. 608, expressed his absolute concurrence with the law laid down by the Allahabad High Court in Janaki's case, (1889 ILR 11 All 194) (supra), as regards the right of the widow of a predeceased son to maintenance against the estate of the deceased of father-in-law in the hands of his heirs.
14. The view of Ranede, J., in Bai Man-gal's case, (1899 ILR 23 Bom 291) (supra), was further rt conditioned by Ammer Ali, J., in Mokhoda Dassee v. Nundo Lall Haldar, (1900) ILR 27 Cal 555, by holding that the right of maintenance is again subject to the satisfaction of the fact that the widowed sonless daughter must have been at the time of her father's death maintained by him as a dependant member of the family.
15. But,both the views of Ranede, J., in Bai Mangal's case, (1899 ILR 23 Bom 291) (supra), and Ameer Ali, J., in Mokhode Dassee's case, (1900 ILR 27 Cal 555) (supra), did not find acceptance of A. K. Sinha, J., of the Calcutta High Court in Khanta Moni v. Shyam Chand, . The learned Judge held that a widowed daughter to sustain her claim for maintenance need not be a destitute nor need be actually maintained by the father during his life time... All that she is required to prove to get such maintenance, the learned Judge held, is that at the material time she is ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 9 Cr.M.M.O. No. 301 of 2015 a destitute and she could not get any maintenance from her husband's family."
"19. In Appavu Udayan v. Nallamrnal, AIR 1949 Madras 24, the Madras High Court has to deal with the rights of daughter-in-law against her father -in-
.
law and his estate in the hands of his heirs. There it is held that the father -in-law is under a moral obligation to maintain his widowed daughter-in-law out of his self-acquired property and that on his death if his self acquired property descends by of inheritance to his heirs, the moral liability of the father-in-law ripens into a legal one against his heirs.
20. A Full Bench of this High Court in T. A. rt Lakshmi Narasamba v. T. Sundaramma, AIR 1981 Andh Pra 88 held:
"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. 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 pf 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 ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 10 Cr.M.M.O. No. 301 of 2015 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."
21. It is rather pertinent to notice here that the view of Ranede, J., in Bai Mangal's case, (1899 ILR 23 Bom 291)(supra) has been dissented from specifically by the Full Bench of this High Court."
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3. Adverting to the facts, it would be noticed that though the petitioner has set up a plea that he has already rt provided a house and orchard to respondent No. 1 , but this plea was nowhere raised before the learned revisional Court and such a plea is, therefore, not available to the petitioner in the present petition.
4. Learned counsel thereafter would argue that the petitioner has no means to pay maintenance. Even this question is no longer res integra in view of the judgment passed by the Hon'ble Supreme Court in Shamima Farooqui Vs. Shahid Khan JT 2015 (3) SC 576, wherein it has been held as under:-
"15. .........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 ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 11 Cr.M.M.O. No. 301 of 2015 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 wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an .
absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. [JT 1997 (7) SC 531:
1997 (7) SCC 7] has held as follows: -"The court has to consider the status of the parties, their of respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and rt statutory but involuntary payments deductions. The amount of maintenance fixed f or or the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the a mount so fixed cannot be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai [JT 2008 (1) SC 78 : 2008 (2) SCC 316], it has been ruled that:-"Section125 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 Kaushal [1978 (4) SCC 70] 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 ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 12 Cr.M.M.O. No. 301 of 2015 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[JT 2005 (3) SC 164]".
16.1. This being the position in law, it is the obligation of the husband to maintain his wife. He of cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
17. rt In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash [AIR 1968 Delhi 174] wherein it has been opined thus: -"An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 13 Cr.M.M.O. No. 301 of 20155. There is nothing on record to suggest that the .
petitioner is not able-bodied or incapable to provide maintenance. If that be so, he cannot simply deny legal obligation of maintaining his wife. aforesaid enunciation of law, it is absolutely clear that once the husband is an able -
of bodied young m an capable of earning sufficient money, he cannot simply deny his legal obligation of maintaining his wife. It rthas to be remembered that when the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Some times the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm for which she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. [ Ref: Shamima Farooqui vs. Shahid Khan (supra)].
::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 14 Cr.M.M.O. No. 301 of 2015In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissing leaving the parties to bear their own costs.
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31st December, 2015(K) ( Tarlok Singh Chauhan ), Judge of rt ::: Downloaded on - 15/04/2017 19:38:08 :::HCHP 15 Cr.M.M.O. No. 301 of 2015 .
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