Kerala High Court
T.P. Ashraf vs Fousia M. on 19 September, 2006
Equivalent citations: 2007CRILJ700, AIR 2007 (NOC) 727 (KER.) = 2007 CRI. L. J. 700, 2007 (2) ALJ (NOC) 306 (KER.) = 2007 CRI. L. J. 700
Author: R. Basant
Bench: R. Basant
ORDER R. Basant, J.
1. Is rigid and ritualistic adherence to the law of pleadings necessary or justified in proceedings under Section 125, Cr.P.C.? This is the relevant question thrown up for consideration in this revision petition directed against an order passed under Section 125 of the Cr.P.C. directing the petitioner to pay an amount of Rs. 2,000/- per mensem as maintenance to the claimant, his wife.
2. The marriage is admitted. Separate residence of the spouses is also admitted. That the petitioner has married again, while his marriage with the claimant-his wife subsists is also not disputed. That the petitioner was employed abroad at the time when the petition was filed is also not disputed at all. It is also brought to the notice of the Court that earlier an ex parte order directing payment of maintenance at the rate of Rs. 1,000/- per mensem was passed. That ex parte order was later set aside.
3. Before the Court below there was the evidence of the claimant as PW 1. The petitioner herein examined himself as RW 2 and a witness from the Sports Council of Calicut as RW-1. He proved Ext. A1 and Ext. XI, a certificate and photocopy of the Attendance Register of District Sports Council.
4. The petitioner had taken up a contention that the claimant is not unable to maintain herself and that she has employment with the Sports Council. It is to substantiate the said plea that RW 1 was examined Ext. A1 and Ext. XI were produced. On the evidence available, the learned Judge of the Family Court came to the conclusion that there is nothing to show that the claimant/wife was getting any income from her sports activities. It is, accordingly, that the Court proceeded to pass the impugned direction.
5. The learned Counsel for the petitioner raises two contentions. He, first of all, contends that there is no specific averment in the petition that the claimant/wife is "unable to maintain herself. The learned Counsel for the petitioner placing reliance on the decisions of various High Courts builds up the argument that her inability to maintain herself must be specifically pleaded by the claimant in the petition filed under Section 125 of the Cr.P.C. Unless such plea is specifically raised, the claim cannot be entertained, he contends. The counsel places reliance on the decisions of the Karnataka High Court in Smt. Haunsbai v. Balakrishna Krishna Badigar 1981 Criminal Law Journal 110 and in Smt. Zubedabi v. Abdul Khader 1978 Cri LJ 1555. He also placed reliance on the decision of the Allahabad High Court in Bishambhar Dass v. Smt. Anguri and Anr. 1978 Cri LJ 385. He contends that there is no satisfactory assertion in the petition that the petitioner is unable to maintain herself.
6. I must, at the very outset, alertly remind myself of the fact that the Court is called upon to consider the adequacy of pleading in proceedings under Section 125 of the Cr.P.C. Ritualistic adherence to the letter of the law and rigid insistence on the law of pleadings is impermissible when the Court is called upon to convert into tangible orders, the compassion of the legislature in favour of the less fortunate sections of the polity. The width and amplitude expected from an instrumentality called upon to translate such burning compassion of the legislature into effective orders of relief must be imbibed and acquired by a Court. It would be puerile to insist that such claimants must repeat the words of the statute in claims made by them, for monthly maintenance under Section 125 of the Cr.P.C. Substance must be the essence and not the form. Forms may still inevitably rule us from the grave. But life cannot be given to the former ignoring the essence. It is true that the legislature had alertly introduced in the 1973 Code the stipulation that the wife must be unable to maintain herself before she claims relief under Section 125, Cr.P.C. But that stipulation cannot at all convey to the Court that the legislature expected and wanted such claimants to repeat the words of the statute through their mouth. A claimant, who is able to maintain himself or herself will certainly not be entitled to the compassion of the law embodied in Section 125 of the Cr.P.C. but that is far from saying that the words of statute must be ritualistically repeated by such claimant.
7. In fact, a perusal of the pleadings in this case clearly reveals that it was very specifically averred by the claimant that she is "surviving with very great difficulty."
Vernacular matter omitted....Ed.
The counsel contends that difficulty in maintaining oneself is not the crucial requirement under Section 125, Cr.P.C. and it must be shown that the person is unable to maintain herself. To accept that interpretation would clearly be to miss the woods for the trees.
8. It is by now trite that the purpose of all pleadings is to satisfy the principle of natural justice that the adversary must get an opportunity to know, understand and meet the claim. It is no ritual. It has a purpose to serve. Any requirement of pleadings cannot be considered or appreciated unmindful on this basic rationale which insists on adequate pleadings. Different individuals may employ different language to convey the same concept. But the question is whether the pleadings, as they are raised, is sufficient to convey to the adversary the crucial ingredients of the claim under Section 125 of the Cr.P.C. The claimant must show that she is unable to maintain herself. That requirement is eminently satisfied by the assertion which is available in the petition which I have already extracted above. If the decisions of other High Courts referred above were to be understood as laying down any rigid or inflexible proposition of law that the words of the statute - of the claimant being "unable to maintain herself, must be ritualistically repeated in the pleadings, I have no hesitation to disagree with such an interpretation. That evidently is not what is intended by those decisions of the other High Courts referred above.
9. That the purpose of the pleadings has been eminently satisfied is conveyed unmistakably by the nature of the response of the respondent to the pleadings of the petitioner. The petitioner herein clearly and unmistakably understood that the claim under Section 125 of Cr.P.C. was being raised on the plea that the claimant is unable to maintain herself. That is why in the counter-statement the specific assertion was made that the claimant is in a position to maintain herself. It will not be apposite in this context to refer the observations of the Supreme Court in paragraph 7 of the decision reported in Rajathy v. Ganesan in . The Supreme Court clearly held that the statement of the wife that she is unable to maintain herself would be sufficient and thereupon it is for the husband to prove otherwise. The requirement of adequate pleadings according to me, has been eminently satisfied in the pleadings of the claimant though the words "unable to maintain herself have not been repeated as such ritualistically by the claimant. The learned Counsel for the petitioner draws the attention of the Court, to the following observations in the paragraph 9 of the decision in Syed Dastagir v. T.R. Gopalakrishna Setty .
In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading depending on the person drafting the plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statue specifically requires a plea to be in any particular form it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.
10. I am in a total agreement that following the principles stated therein, sufficient and adequate plea notifying the adversary of the nature and the crux of the crucial dispute has been raised in the petition filed by the petitioner.
11. Though it is contended that the claimant is able to maintain herself, the evidence of RW 1 and Ext. A1 and Ext. XI series are totally insufficient to establish that the claimant is actually in receipt of any amount so as to take her out of the sweep of the expression "person unable to maintain herself."
12.The learned Counsel for the petitioner then submits that the petitioner has now been directed to pay an amount of Rs. 2000/- per mensem while the ex parte order which he had got set aside, had directed him only to pay an amount of Rs. 1000/ per mensem. He is now exposed to a higher liability to pay maintenance. It is submitted that in these circumstances the quantum of maintenance awarded may be reduced.
13. I take note of the fact that at the time of filing the petition, the petitioner was admittedly getting an amount of Rs. 9000/- by way of monthly income. This is the admitted version of the petitioner. The petitioner, it is further indicated has married again and that must also be reckoned as an indication of his affluence. It would be puerile to assume that he willingly undertook the responsibilities of matrimony again, if he were not in a position to meet the requirements and obligations of such further matrimony.
14. The learned Counsel for the petitioner submits and relies upon the inputs which are available on record to contend that the petitioner is not now employed abroad. Convincing data about such subsequent event is not certainly available. A decision must be reckoned as rendered on the situation and state of affairs as on the date of the petition. If the petitioner has a case that he lost his employment abroad and has returned to India, that can certainly be a valid reason for modification/alteration of the maintenance order. I am not persuaded to agree that on that ground the quantum deserves to be modified in this Revision.
15. Though the ex parte order directed payment of only an amount of Rs. 1000/-per mensem I see no reason to interfere with quantum fixed as it is evident that such quantification was made before the specific admission was obtained from the petitioner of his monthly income when he was admittedly employed abroad.
16. The quantum fixed by the Court below is according to me, in tandem with the evidence available about the means of the petitioner and the needs of the claimant. I am not persuaded to agree that the quantum fixed by the Court before deserves to be interfered with invoking the revisional jurisdiction of superintendence and correction.
17. In the result, this revision petition is dismissed. But I may hasten to observe that the dismissal of this revision petition will not in any way fetter the rights of the petitioner to seek alteration of the maintenance awarded, if sufficient circumstances exist justifying such alteration.