Bombay High Court
Radhabai W/O Govinda Bhise vs Govinda S/O Totiji Bhise And Anr. on 26 August, 1987
Equivalent citations: 1988(1)BOMCR178
JUDGMENT G.G. Loney, J.
1. Applicant Radhabai, a deserted woman of about 50 years age, has approached this Court invoking the inherent jurisdiction of this Court under section, 482, Cri.P.C. claiming maintenance. Her application for maintenance from her husband non-applicant under section 125 Cri.P.C. was rejected by the learned Magistrate and her revision before the Sessions Court, Akola, was also rejected. It is a very unusual case where an old wife is claiming the maintenance against her husband who is having the first wife living with him. In order to appreciate the rival contentions in this case it is necessary to know the relevant facts.
2. The applicant Radhabai was the second wife of the non-applicant Govinda. He had earlier married with Gangubai but since she was a minor he married the petitioner Radhabai. During the cohabitation of the applicant and non-applicant she gave birth to a daughter. After some years the first wife Gangubai attained puberty and came to reside with the non-applicant. It is the case of the applicant that when the first wife Gangubai came to reside with the non-applicant Govinda a real conflict ensued. According to her the non-applicant Govinda as well as his first wife Gangubai treated her with cruelty. Thereafter the applicant was reached by the non-applicant to her parents place at village Gaondhala in the District Akola. According to the applicant this happened after spending ten years of married life with the non-applicant. It is her case that since the time when she was reached to her parents place at Gaondhala, she requested the non-applicant to pay her maintenance but she was not paid any maintenance and she continued to live with her parents house at Gaondhala. The non-applicant Govinda did not care for the maintenance of Radhabai and continued to live with his first wife Gangubai. It seems that Radhabai made some efforts to get maintenance but to no effect. During the neglect of a long period Radhabai attained the age of about 50 years and Govinda about 55 years when on 28th March, 1984, she filed an application claiming maintenance from the non-applicant under section 125 Cri.P.C.
3. The applicant contended in her application that after attaining puberty Gangubai came to live with the non-applicant No. 1 Govinda and thereafter he started ill-treating her without any reason. She alleged that merciless beating was given to her by Govinda on several occasions. She also alleged ill-treatment at the hands of first wife Gangubai. She further averred that one day she was beaten mercilessly by the non-applicant No. 1 Govinda and was driven out of the house. Since then, she is living with her brother at village Gaondhala. But the non-applicant Govinda did not try to bring back Radhabai nor cared to provide her any maintenance although he had sufficient means to do so. She claims that due to her old age, she is unable to do any manual work and is physically incapable to earn and maintain herself. She has claimed that she does not possess any means for her maintenance. According to her the non-applicant Govinda is having sufficient landed property for providing maintenance and claimed Rs. 400/- per month towards her maintenance. The non-applicant Govinda denied all the contentions raised by the applicant except that she is his wife. In the trial Court, the applicant examined herself and also examined one witness on her behalf. The non-applicant No. 1 Govinda examined himself and also examined one witness on his behalf. On the basis of the evidence the learned Magistrate held that the applicant is a legally wedded wife of Govinda and further held that their marriage was performed prior to 1956. He further held that Govinda is having sufficient means. He also held that Rs.100/- per month will be enough as maintenance allowance to meet the requirements of the applicants. However, he negatived the claim of the applicant on the ground that she has not proved the neglect. According to the learned Magistrate the allegations are vague and the evidence is oath against oath. He also held that a long period has elapsed after both-fell out and therefore the neglect on the part of the husband is not established.
4. In a revision preferred by Radhabai the learned Sessions Judge agreed with all the findings of the trial Court and rejected the revision. It is significant to note that a point was raised before the revisional Court by Radhabai on her behalf in view of the meaning of Explanation added to sub-section (3) of section 125 of the Criminal Procedure Code. The Explanation provides :
"If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him".
In view of the circumstances contained in the aforesaid Explanation, it was urged before the Court that when Govinda had the first wife living with him, it was the just ground for applicant to refuse to live with Govinda and even then to claim maintenance. It was submitted that the applicant was justified in refusing to reside with Govinda as he was living with the first wife. According to applicant, it was a just ground for her to refuse to live with her husband in view of the provision contained in the aforesaid Explanation. It has been urged, therefore, that there was just ground for the applicant to refuse to live with her husband and yet claim maintenance. But the learned Sessions Judge did not consider this aspect to grant maintenance to the applicant. According to the Sessions Judge, the refusal on the part of applicant to live with her husband is a circumstances which does not establish neglect on the part of the husband and reject the revision of the applicant.
5. Smt. Sirpurkar, learned Counsel appearing for the applicant contended that since the non-applicant No. 1 Govinda had contracted marriages and his first wife was living with him and, therefore, the applicant refused to live with him on that ground; itself amounts to a neglect on the part of the non-applicant. According to Smt. Sirpurkar under the circumstances of this case the applicant Radhabai's separate residence on account of the fact that the non-applicant Govinda is living with his first wife itself should be considered to be just ground for the applicant for her refusal to live with him and claim maintenance. In support of her contention Smt. Sirpurkar relied on the proposition of law laid down by the Supreme Court in this behalf. In the case of Begum Subanu alias Saira Banu and another v. A.M. Abdul Gafoor, , the Supreme Court propounded the law on the basis of the explanation to section 125, Cri.P.C. as under :
"A right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. It matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, it cannot be said that his taking another wife will not entitle the wife to claim separate residence and maintenance. The explanation is of uniform application to all wives including Muslim wives whose husband have either married another wife or taken mistress. In this connection any offer to take the first wife back cannot be considered to be a bona fide offer unless the husband offers to set up a separate residence for her, for a husband who marries again cannot compel the first wife to share the conjugal home with the co-wife."
"The explanation contemplates two kinds of matrimonial injury to a wife viz. by the husband either marrying again or taking a mistress. The Explanation places a second wife and a mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law. The reason for a second wife and a mistress being treated alike can clearly be visualised on pondering over the matter. However, the purpose of the explanation is not to effect the rights of a Muslim husband to take more than one wife or not to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking mistress during subsistence of the marriage with her. From the point of view of neglected wife, for whose benefit the explanations been provided it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be a married and not a mistress. The legal status of the woman to whom the husband has transferred his affections cannot lessen her distress or her feelings, or neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more to learnt and sympathetic than a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife is one and the same house ? It will undoubtedly lead to strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband's right to marry again. The Explanation has, therefore to be seen in its full perspective and not disjunctively. Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses."
On the basis of the ratio of this case it has been contented by Smt. Sirpurkar that even though non-applicant No. 1 Govinda expressed his willingness to maintain the applicant his offer was not bona fide and in view of the fact that the first wife Gangubai was living with him was itself a circumstances for her to refuse to live with her husband. Smt. Sirpurkar further contended that the neglect on the part of Govinda stands proved firstly by the oral evidence given by Radhabai and secondly in view of the fact that Govinda was residing with the first wife Gangubai. According to her it is immaterial whether refusal is on the part of the first wife or the second wife in order to attract the benefit of this explanation to claim maintenance by the aggrieved wife. In view of the facts of t this case it is claimed that since Gangubai was brought into the matrimonial house by her husband after attaining puberty she was neglected in the house. It is also contended that during the long period of marriage which is more than 30 years in this case, the applicant Radhabai with her husband for about ten years and she is suffering neglect for a long period of more than 20 years which itself is sufficient to add weight to her claim of maintenance in this case.
6. According to Smt. Sirpurkar although in the case of Begum Subanu alias Saira Banu, (cited supra), she was a second wife who claimed the maintenance it is immaterial whether the aggrieved wife a first wife or the second wife but if she is neglected on account of husband having another wife with him will entail the deserted wife for the claim of maintenance under the aforesaid Explanation. In case of the second wife claiming maintenance she also can be said to have been neglected when the husband has entered in the marriage with another woman. According to the applicant, the non applicant had contracted marriage with Gangubai and therefore her refusal to live with him will not deny her claim in view of the aforesaid Explanation. The ground that husband has contracted marriage with another wife and in that event the second wife is also entitled to claim of maintenance has been interpreted by a Division Bench of this Court in the case of Tejabai w/o Shankarrao v. Shankarrao Basawanappa, . The Division Bench of this Court held in that case that the wife living separately from her husband is entitled to claim maintenance under section 488, Cri.P.C. on the ground that the husband has contracted marriage with another wife. The words ''If husband has contracted marriage with another wife'' were interpreted in the aforesaid decision. The relevant portion reads as under :
''In the present case the learned Magistrate has rightly come to the conclusion that the wife was entitled to stay away from her husband and claim separate maintenance because a refusal to maintain her could be spelt out from the written statement filed by the husband and the contest he raised to the application.
It is next contended that the 'just ground' of 'sufficient reason' of a husband contracting marriage with another wife was only available to the first wife vis-a-vis the second, and not the second wife vis-a-vis the first. It is contended that the provision was not made for the benefit of wife who with open eyes marriage a husband who has already contracted a marriage. We do not think that we can accept this argument. We know that second wife is many a time a minor when she is married and is hardly responsible for her marriage. It may also happen in some cases that man may marry a second wife keeping her in ignorance of his first marriage. To refuse a second wife maintenance on this ground would therefore, be clearly unjustified. Moreover, there is nothing in the explanation to the proviso which compels us to put the particular interpretation suggested. The words if a husband has contracted marriage with another wife are quite general in terms. The dichotomy between 'has contracted marriage with another wife' and keeps 'a mistress' is obvious. So far as the keeping of mistress is concerned, the verb keep is used in its present tense. But, so far as contracting of marriage is concerned the verb is present perfect viz. 'has contracted'. The marriage may have been contracted at any time and will refer to the first as well as second marriage. Much the same, view has been taken of this provision by the Calcutta High Court in Kunti Bala Dassi v. Nabin Chandra, (S) . There too the application for maintenance under section 488 had been made by a second wife. It was held that there was nothing in the explanation to proviso under sub-section (3) of section 488 which prevented a second wife from making an application for separate maintenance on the ground that the first had been living. The learned Judge observed :
''This proviso obviously places the wife on a stronger footing it has been contended, however, on behalf of the husband that this proviso means its benefit can be taken only by the first wife when her husband marriages for the second time and that so far as the second wife is concerned she is not entitled to the benefit of it except where the husband takes one wife or more after her that is the second wife's marriage. In my opinion there is nothing in the proviso justifying such limited construction of it. The phrase used in the proviso is 'has contracted and nor contracts. The former phrase is in my opinion sufficiently wide to entitle the second wife to its benefit even in the case where the husband has not married for the third time during the life time of the second wife. That being the position when on the facts of the present case it has been proved that the husband is living with the first wife, that would be just ground on the part of the second wife to refuse to live with him even if he made an offer to the second wife inviting her to live with him at the same house with the first wife."
The ratio of Tejabai's case (cited supra) clearly apply to the facts of this case.
7. According to Shri Pendhakar, the application in this case knowing full well that the non-application No. 1 Govinda was having Gangubai as a first wife with open eyes entered into matrimonial tie. She was aware of the situation that he has a first wife and, therefore, the ratio of the case of Sairabanu's case (cited supra) will not apply in this case. According to Shri Pendharkar even in the case of Sairabanu, the entire purport of the case is in respect of the first wife. Shri Pendharkar further pointed out that while deciding Saira banu's case the Supreme Court has considered the case of Tajabai in paragraph 6 of the judgment in the following context. In this paragraph, the Supreme Court observed as under :
''In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under section 488, Cri.P.C. 1898."
On the basis of this observations of the Supreme Court it is contended by Shri Pendharkar that the proposition of law which has been laid down by the Supreme Court in the case (supra) is that on account of the fact that the second marriage by the husband the first wife was said to be entitled to the order of maintenance. But according to him, in the instant case it is not the first wife who is claiming maintenance but the second wife. According to Shri Pendharkar, applicant being the second wife she is not entitled to maintenance. I am unable to agree with the contentions of Shri Pendharkar in view of the ratio of Tejabai's case (supra). The Bombay High Court is clearly of the view in the case (supra) that the second wife on the basis of the interpretation of the word ' contracted the second marriage' is entitled to maintenance. I am, therefore, of the view that the second legally married wife if refuses to live with her husband on the ground that the husband is living with the first wife, despite the offer from the husband to maintain her, is enough to prove neglect and is entitled for maintenance within the meaning of the second proviso to sub-section (3) of section (3) of section 125 read with Explanations thereunder.
8. The next point which was urged by Shri Pendharkar is about the maintainability of this petition under section 482, Cri.P.C. The point raised by Shri Pendharkar is that when the first revision of the applicant has been dismissed, this petition under section 482, Cri.P.C. is nothing but the second revision under the cloak of section 482. In short it is the precise contention that when the applicant having elected to choose the forum of Sessions Judge under section (3) of section 397, Cri.P.C. this petitions debarred being nothing but the second revision for the same relief. In support of his contentions Shri Pendharkar has relied on several authorities.
9. The first case relied by Shri Pendharkar is in Palaniappa Gounder v. The State of Tamil Nadu and others, . It has been held in this case that ''if there is an express provision in a statute governing a particular subject-matter, there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject-matter. Thus the application made by the heirs of the deceased for compensation could not have been made under section 482 since section 357 expressly confers power on the Court to pass an order for payment of compensation in the circumstances mentioned therein. That did not, however, affect the power of the High Court to deal with the application because though the application was wrongly described as having been made under section 482, the High Court could deal with it as if it were made under section 357 of the Code.
10. The next case relied is that of Madhu Limaye v. State of Maharashtra, . Another case relied is Jagir Singh v. Ranbir Singh and another, . There is no quarrel regarding the proposition of law laid in the aforesaid cases in as much as the proposition of law is that the second revision by the same parties under section 397(3) is barred. It is not permissible to do so.
11. But in the instant case, I find that Radhabai has not filed a revision petition under section 397 of the Criminal Procedure Code but has approached this Court under its inherent jurisdiction under section 482, Criminal Procedure Code. The applicant has contended that both the Courts below have given a finding that she is unable to maintain herself and that the non-applicant Govinda is having sufficient means. Her claim for maintenance has been rejected on the ground that no neglect has been proved. As discussed by me in the preceding paragraph, the necessary neglect has been established by the applicant. Once the neglect is proved, the applicant is entitled to get maintenance provided she satisfies the other requirements, i.e. the husband has sufficient means and wife is unable to maintain herself. Both Court below have held in affirmative on these two points. The quantum of Rs. 100/- p.m. was also held to be justified by the Courts below. Her claims came to rejected on the ground that she has not proved the neglect on the part of the non-applicant. Having found that the finding of the Courts below is erroneous in view of the case Begum Subanu's case (supra), what is necessary is to give effect to the order of maintenance to which she is entitled in law.
12. It is to be seen in this case that if the effect has to be given to the order of maintenance, it can only be done by invoking the inherent powers of this Court under section 482, Criminal Procedure Code. I have already discussed that the applicant has been totally neglected by her husband for a period of 20 years and if when the courts below found she is without any means of livelihood and that she is an old woman and cannot earn and as her husband is having sufficient means to provide maintenance of Rs. 100/- per month, the order of granting maintenance cannot be given effect unless the inherent powers are invoked. Even otherwise, in the interest of justice, it is necessary to invoke the inherent powers of this Court. Therefore, in order to give effect to the order of maintenance and also otherwise to secure ends of justice, it is necessary to treat this application an maintainable under section 482 of the Criminal Procedure Code. The inherent powers of this Court under section 482 of the Criminal Procedure Code, can be invoked by a party whose application for maintenance has been rejected in revision by the Sessions Court, if the extraordinary situation excites the Court's jurisdiction. But such powers are to be exercised sparingly when injustice is apparent and it is necessary to secure the ends of justice.
13. It is true that the second revision is clearly barred as right of challenging trial Court's order in the first revision before the District Court has been exhausted. As observed above, I find that if inherent powers are not invoked in this case, it will be denying the right to applicant to seek redress. It is an extra ordinary situation which excites the Court's jurisdiction. This is a case of glaring injustice. There is no other provision in the Criminal Procedure Code for the applicant to seek redress for her grievance. The applicant is not coming here against any interlocutory order. In a similar situation, the Supreme Court in Raj Kapoor's case (supra) has indicated the exercise and limitations of inherent power of this Court under section 482, Criminal Procedure Code. The Lordships of the Supreme Court in para 10 observed as under :
''The first question is as to whether the inherent power of the High court under section 482 stands repelled when the revisional power under section 397 overlaps. The opening words of section 482 contradict this contention because, nothing in the Code, not even section 397 can effect the inherent power preserved in so many terms by the language of section 482. Even so, a general principle prevades this branch of law; when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye's case, , this Court has exhaustively and, if I may say so with great respect correctly discussed and delineated the law beyond mistake. While it is true that section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in section 392(2). Apparent conflict may arise in some situations between the two provisions and a happy solution;
'would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or effect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction.
In short, there is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Court's jurisdiction. The limitation is self restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent, if glaring injustices stares the Court in the face. In between is a tertium quid, as Untwalia, J., has pointed out as for example, where it is more than purely interlocutory-order and less than a final disposal. The present case falls under the category where the accused complain of harassment through the Court's process. Can we state that in this third category the inherent power can be exercised ? In the words of Untwalia, J.;
'The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The letter of the petitioner filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
I am, therefore, clear in my mind that the inherent power is rebuffed in the case situation before us. Counsel on both side sensitively responding to our allergy for legislatics, rightly agreed that the financial instance on the formal filing of a copy of the order under cessation need not take up this Court's time. Our conclusion concurs with the concession of Counsel on both sides that merely because a copy of the order has been produced, despite its presence in the records in the Court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified.'' The propositions of law in the case (supra) has clearly laid down that in a given circumstances this Court can invoke the inherent jurisdiction. I find that this is an extra ordinary situation arising in this case where the wife deserves maintenance and her claim cannot be rejected. In my view, there are compelling circumstances in the instant case to invoke the inherent power to grant maintenance to the applicant and also in order to meet the ends of justice. In view of the decision of the Supreme Court in Raj Kapoor's case (supra), the law permits to invoke the jurisdiction in the circumstances as are prevailing in the instant case.
14. In the result, this application is allowed. The non-applicant No. 1 Govinda is directed to pay to the applicant Radhabai maintenance at the rate of Rs. 100/- per month payable from the date of her application claiming maintenance.