Bombay High Court
Ramchandra Balu Magadum (Desai) vs Smt. Rakhamabai Balu Magadum (Desai) ... on 5 October, 1991
Equivalent citations: (1991)93BOMLR716, 1992CRILJ1919, 1992(1)MHLJ165
ORDER
1. These petitions have their origin in an application moved by the 1st Respondent hereinafter referred to as 'Rakhamabai' seeking maintenance u/S. 125 of the Criminal Procedure Code, 1973 (Code).
2. Petitioner Ramchandra is the adoptive son of Rakhamabai having been adopted by that lady on 29th June 1964. Rakhamabai was at the date of the adoption the widow of Balu Maruti who had expired on 22nd February 1960. The adoption was recorded in a deed of adoption which was subsequently got registered. In the deed itself the ages of Rakhamabai and Ramchandra were shown as 30 and 11 years respectively. Balu had left behind a mother also and that lady is still alive. It is conceded before me that Ramchandra is the natural son of Balu's full sister. Shortly after the adoption Rukhamabai left the matrimonial home. Balu at the time of his death was possessed of agricultural land and possibly a house at village Yevti, Taluka Karad, District Satara. Some part of the agricultural land was acquired for a public project and the compensation awardable was received by Ramchandra. The remaining agricultural land and the village home is in the occupation of Ramchandra. Ramchandra is in the employ of the Bombay Municipal Corporation and resides at Bombay.
3. In the year 1986 Rakhamabai moved a Magistrate at Karad seeking an order for maintenances against Ramchandra. Shortly stated her case was that because of advanced age she was not in a position to do any work. She had no business of her own. Therefore, she was not in a position to maintain herself. Ramchandra though possessed of the means to provide for her maintenance had not done so and was enjoying the property left by Balu to her exclusion. He was getting an income of atleast Rs. 15,00/- from the agricultural lands and Rs. 1200/- by way of salary. She therefore prayed for a direction that Ramchandra pay unto her a sum of Rs. 300/- per month by way of maintenance. The application was opposed by Ramchandra who admitted that he was the adopted son of Rakhamabai. It was his contention that Rakhamabai relinquished her right to be maintained out of the properties of Balu in lieu of a sum of Rs. 5000/- paid in cash to her as also precious ornaments. Shortly after the adoption Rukhamabai voluntarily left for Gotewadi and had even started doing business in milk at that place. She had purchased cows and buffaloes, the milk of which animals was fetching her an income of Rs. 500/- per month. After the acquisition, Ramchandra was left with two acres of land which was rocky and stony. That piece of land did not yield any income and regard being had to his means he was not in a position to give separate maintenance to Rakhamabai. His salary from the BMC was as little as Rs. 378/- per month.
4. The parties led evidence in support of their rival contentions. The learned Magistrate negatived the contention of Ramchandra about Rakhamabai having relinquished her claim to maintenance and her being in a position to maintain herself. He held that Ramchandra was liable to provide for her separate maintenance and the figure found reasonable by him for this purpose was Rs. 100/- per month. Ramchandra was directed to pay maintenance at the above rate from the date of the application filed by Rakhamabai and also pay costs of Rs. 50/- to the lady. Dissatisfied with the result Ramchandra moved the Sessions Court at Satara by means of a revision registered as a Criminal Revision Application No. 265 of 1987. Rukhamabai apparently as a counter blast moved the Sessions Court by another Revision Application, namely Criminal Revision Application No. 29 of 1989. Ramchandra questioned the award of maintenance, while Rukhamabai questioned the quantum awarded by way of maintenance to her. In the revision Ramchandra for the first time questioned the validity of the adoption. His contention was that the age difference between him and Rakhamabai at the date of adoption was that in contravention of the standard prescribed u/S. 11 of the Hindu Adoptions and Maintenance Act 1956. The learned Sessions Judge has pointed out that the adoption had not been challenged before the Magistrate. Still, he permitted the production of a school leaving certificate and an adoption deed. These documents showed the difference of 19 to 20 years in the ages between the adoptive mother and the adoptee. The view taken by the learned Judge was that the validity of the adoption could not be challenged in revision and that too in a revision arising from summary proceedings. Next the deviation from the ages prescribed by S. 11 would not render the adoption illegal and void. The plea of Rakhamabai having relinquished her claim to maintenance was negatived. In regard to the quantum, the learned Judge was of the view that Ramchandra had kept back the best evidence in the shape of a pay slip and pay certificate. For that reason it would be reasonable to hold that he was earning more than Rs. 1000/- per month from service. The lands left after acquisition were still in his possession. He had only three persons to maintain besides himself, viz. his grandmonther i.e. mother of the adoptive father, wife and an infant child. The rate at which maintenance had been awarded by the Magistrate was unduly low and that had to be suitably raised. In consonance with these findings he dismissed Ramchandra's revision application and allowed that of Rakhamabai by directing Ramchandra to pay maintenance to Rakhamabai at the rate of Rs. 300/- per month which was to relate back to that point of time at which Rakhamabai had filed her application u/S. 125 of the Code. Parties were left to bear their own costs in those revisions.
5. The present writ petitions are directed against the orders passed in the two revisions of the parties. Having regard to the submissions made, the points for determination are -
(1) Whether no liability is cast upon Ramchandra to maintain Rakhamabai, his adoption being void in law ? (2) Did Rakhamabai lose her right to be maintained for all or any of the reasons urged by Ramchandra ? (3) Whether the rate at which the maintenance had been fixed by the Sessions Judge was unduly high and if so, to what extent Ramchandra was entitled to relief ? (4) What order ?
My findings for the reasons given below, are :-
(1) Not so.
(2) Not so.
(3) Not so.
(4) See order.
6. In dealing with the plea of invalidity of adoption, what must not be lost sight of is the total absence of a pleading on the subject in the reply filed by Ramchandra in answer to the application u/S. 125 of the Code moved by Rukhamabai. This by itself is a reason for not allowing Ramchandra to raise this plea. It was argued that Ramchandra had been allowed to put in documents at the stage of revision in the Sessions Court and the learned Sessions Judge had considered the plea. With respect to the learned Judge, I think, it was an error on his part to allow production of documentary evidence when the stand taken in the pleadings did not warrant the assailing of the adoption. True, Rukhamabai was claiming maintenance under the Code and it is well settled that in the matter of criminal cases pleadings are not to be strictly construed. Even so, the combined effect of Ss. 125 to 128 of the Code leaves no room for doubt that the proceedings are quasi-civil in nature. Therefore, the rules of pleadings as apply to civil proceedings are not to be totally disregarded when dealing with applications under Chapter IX of the Code. Section 126(2) provides for reception of evidence by dispensation with the personal attendance of the person against whom an order for maintenance is to be made. Of course, the dispensation with personal attendance is because of the substitution of the presence by a pleader representing the person to be burdened with an order of maintenance. Unlike prosecutions for conviction and punishment of offenders, the proviso to sub-section (2) of Section 126 enables a Magistrate to proceed to hear and determine applications ex parte. The person against whom the order is made can apply for setting aside of the ex parte order, subject of course to showing of good cause for his not responding to the notice to show cause pursuant to the lodging of the application for maintenance. Another feature which distinguishes proceedings for maintenance under the Criminal Procedure Code with other proceedings under that Code is sub-section (3) of Section 126. The Magistrate has been empowered to make such order as to costs on these proceedings as may be considered just. Section 127 permits an alternation in the quantum of monthly allowance on proof of a change in the circumstances. This provision confers upon a Criminal Court the power to review an earlier order. These provisions would show that the main rules in regard to pleadings applicable to civil proceedings are also applicable to proceedings for maintenance under Chapter IX of the Code. It was argued that the document sought to be placed on record by Ramchandra were beyond suspicion. The said documents were a school leaving certificate and the adoption deed. Neither document is irrefutable proof of the contends thereof. The school leaving certificate may be a public document but it is not as if the contents appearing therein are irrefutable. At the most they raise a presumption and the presumption is not unrebuttable. Next, so far as the deed of adoption is concerned, the question of fact arising would be as to who was the author of the information relating to the respective ages of the adoptive mother and adoptee on the date of adoption. Therefore, Rakhamabai was taken by surprise in having to meet an inference arising from documents vis-a-vis a plea which did not find a place in the reply of Ramchandra and which plea she had no adequate opportunity to meet by leading evidence to the contrary. Considered either way, the plea about the alleged vice of illegality attaching to the adoption should not have been permitted to be raised by the Sessions Judge. But that apart, Mr. Gole is right in his submission that the construction placed upon Section 11 by the learned Sessions Judge is erroneous. The learned Judge seems to be of the view that the words 'at least' appearing in the relevant clause of Section 11, are merely directory. This view runs counter to Section 11 of the Act. The relevant portion thereof reads thus :-
"in every adoption the following conditions must be complied with :
..................................
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted."
At the very inception the section speaks of the conditions set out being mandatorily required to be complied with. No other meaning can be assigned to the words 'must be complied with'. Therefore, one of the conditions for a valid adoption is the difference in ages prescribed by clause (iv). Therefore, this is not a merely directory provision but something which is mandatory and the violation whereof results in the invalidity of the adoption. Mr. Gole rightly relies upon Golak Chandra Rath v. Krutibas Rath, , in support of the above point. But as said earlier, the plea was not merely one of law. It was a mixed question of fact and law and the legal issue could arise only after a satisfactory resolution of the facts. Had Ramchandra set up a proper foundation for the issue in his pleadings, there would have been an issue on the subject and Rakhamabai would have had a proper opportunity to meet the same. This not having been done, it is not permissible to look into the school leaving certificate and the deed of adoption to rule upon the alleged invalidity of the adoption because of a contravention of clause (iv) of Section 11 of the Act. Mr. Gole submits that his client should be granted leave to challenge the adoption in a properly constituted suit. Whether he can do so is not a question which arises before me. It is not within my province to make observations which will come in the way of the parties in any future litigation.
7. The next point which I have to address myself is about the alleged disqualification of Rakhamabai in the matter of seeking maintenance from Ramchandra. First is the contention that Rakhamabai had given up her right to claim separate maintenance from Ramchandra or the estate left by Balu in lieu of a sum of Rs. 5,000/- and ornaments given to her by, possibly, the natural parents of Ramchandra. A witness has been examined in support of this plea and it is argued that there is no reason to disbelieve him. After all, the said person had signed the adoption deed. The Magistrate who had occasion to see the deponent in the witness box has chosen to disbelieve him. I will not be justified in interfering with this appreciation of evidence on the basis of an asserted argument about the credibility of the witness remaining unshaken, because he had chosen to attest the deed of adoption. If Rakhamabai had really relinquished her right, the best evidence in that connection would have been some writing taken from her regarding the so-called relinquishment. After all, the natural parents of Ramchandra were not content with anything less than a registered deed of adoption. Ramchandra and his natural parents had no reason to be more trusting. The object of the deed of adoption was to finally pack off Rakhamabai to her parents' place and strip her all of the little she had inherited from her husband of barely four summers. The other disqualification Rakhamabai is said to suffer from is her using the parental name instead of that given to her after her marriage to Balu. It is not possible to comprehend how this would constitute a disqualification. It is not Ramchandra's case that Rakhamabai has contracted a second marriage or has taken to an unchaste life. Married woman using their maiden surnames is not the equivalent of unchastity disentitling them to maintenance under Section 125 of the Code. The argument is that even if it be not a disqualification, the same can be taken in conjunction with Rakhamabai's staying away from her marital home for near about 24 years, as proof that she was in a position to maintain herself or that Ramchandra was not under an obligation to maintain her. Again, I must confess my inability to comprehend the submission. That Rakhamabai started using her maiden name or that she did not demand maintenance for near about 24 years does not mean that she had relinquished her claim to be maintained by her adopted son. The last submission under this head is the alleged incapacity of Ramchandra to pay maintenance to Rakhamabai. It is said that Ramchandra has to maintain his wife, child, grandmother and himself. The compensation which he received for the acquisition of land was in the neighbourhood of Rs. 5,000/-, which sum he was ready to make over to Rakhamabai provided he was given reasonable time to do so. Next, he was willing to make over the remaining agricultural land to Rakhamabai and she could do what even she wanted therewith. He wanted no part of the estate left behind by Balu. No such magnanimity was shown by Ramchandra in his reply to the application of Rakhamabai. The offer made here is with the full knowledge that these brave statements do not come in the way of the legal position which is that an interest in immovable property cannot be given up except in certain ways recognised by the law, and, in any case surrender of this or that property cannot be a ground for forstalling an award for maintenance made under Section 125 of the Code.
8. Last is the objection taken in regard to the quantum of maintenance fixed by the learned Sessions Judge and the date wherefrom the enhanced rate is made payable. It was submitted that the evidence did not show the capacity of Ramchandra to be such that he could pay Rs. 300/- per month. Ramchandra has been less than candid on the subject of his earnings. In his reply he gave out his salary to be Rs. 378/- per month. Examined as witness in the proceedings, he admitted that the salary was Rs. 1,000/- per month. The agricultural land left is said to be worthless. Ramchandra's version of what his income is cannot be accepted in view of his proved incapacity to tell the truth. The Sessions Judge has enahanced the rate from Rs. 100/- to Rs. 300/- per month. This may seem arbitrary but Ramchandra is not free from blame for bringing about a situation where surmise had to take the place of proof. He could have filed documentary evidence in relation to his earnings from the B.M.C. Witnesses could have been examined to show the yield from the agricultural land left after the acquisition of 4 acres. In the absence of such evidence, the Sessions Judge had no alternative, but to take recourse to conjecture and Rs. 300/- per month in the expensive times in which we live cannot be said to be excessive. It works out to Rs. 10/- per day. A human being, even one living in the rural areas, certainly needs that much to keep body and soul together. Where the Sessions Judge erred was in making the enhanced rate applicable from 31-1-1986. Rakhamabai was quite content with the rate chosen by the Magistrate. The revision preferred by her was in the nature of tit for tat proceedings. In the circumstances, the enhancement should have been from the date on which she lodged Criminal Revision Application No. 29 of 1988. Until the date of such lodgment, the maintenance should have been permitted at the rate of Rs. 100/- per month granted by the Magistrate. Having regard to be conclusions reached above, the following order is passed :-
ORDER The order of the learned Sessions Judge is substituted by one reading thus :-
Ramchandra do pay maintenance at rate of Rs. 100/- per month from 31-1-1986 till the date on which Rakhamabai moved Criminal Revision Application No. 29 of 1988 in the Sessions Court at Satara. As from the date on which the Criminal Revision Application No. 29 of 1988 was moved, the rate at which maintenance shall be payable by Ramchandra will be Rs. 300/- per month. Order for costs made by the Magistrate to stand unaffected. Parties to bear their own costs in the Sessions Court as also this Court. Rules made partially absolute in the above terms. Copy of this judgment be supplied free of cost to Rukhamabai expeditiously.
9. Order accordingly.