B. Janardhana vs Roopashri

This revision u/s 19(4) of the Family Courts Act is directed against the order dated 31.7.2010 passed in C.Misc. 66/2000 on the file of the Judge, Family Court at Mysore, directing the petitioner to pay maintenance at Rs. 3,000 per month. Petition is posted for admission.

Heard.

Contextual facts to which the learned Counsel has made reference is: Smt. Roopashri, respondent herein, invoking Section 125 of the Cr.P.C. sought a direction to the petitioner to pay her maintenance for her sustenance, which was registered in C. Misc. No. 66/2006 and the petitioner was called upon to answer. Petitioner entered appearance and by detailed counter resisted the claim.

The 1st respondent alleged that she was married to the petitioner on 10.3.2004 in a Kalyana Mantap at Mysore as per customary rights in the community. The petitioner failed to consummate marriage with her and deprived her all comforts and consortium of married life. Her hopes were shattered because of the indifference of the petitioner. As he deliberately failed to maintain her, she took shelter in the house of her mother and sister. They provided her with basic need, but could not continue to favour her. In such situation she was rendered destitute and has nothing to fall back upon.

It was further urged the petitioner was well-off financially and was capable of maintaining her. However, he declined to maintain her on the pretext that she was sick and was not capable of performing marital obligations. In this regard, she has averred that before marriage itself the petitioner was informed of epileptic attacks, which she was suffering from childhood. The petitioner being well aware of such a situation agreed to marry her. Therefore, his subsequent conduct was unjustified. She further averred that petitioner had demanded and received Rs. 1.5 lakh in cash and gold ornaments like necklace, a pair of ear hangings, two rings and one Mangalya as dowry. The marriage was performed at the cost of Rs. 3.5 lakh.

The petitioner on his part resisted the claim firstly, contending that she was suffering from epileptic attacks which was suppressed at the time of the marriage. Therefore, he was justified in denying to live with her. Secondly, she had applied for dissolution of marriage and in such a situation, maintenance was not permissible. Lastly, he would contend that he was not liable to pay any amount that would be ordered.

Parties led evidence in support of their contentions. Roopashri was examined as P.W.1 and 7 documents were filed by her. Petitioner was examined as R.Ws.1 and 3 documents were filed by him. Considering the evidence so brought on record, the learned Trial Judge held that the wife had proved she was neglected by the petitioner and thus held her entitled to maintenance. The learned Trial Judge further discounted petitioner''s contentions and in view of the annulment of the marriage dated 12.2.2008 in M.O.P. 46/2006, her right to seek maintenance was extinguished. Considering the factual situation and the earning capacity of the petitioner, Rs. 3,000 is fixed as maintenance.

The first and foremost ground urged is that the Family Court at Mysore had no jurisdiction to entertain an application u/s 125 of the Cr.P.C. as Roopashri was not "wife" within the meaning of that section. It was urged that though the marriage was performed, as the same was annulled on 12.2.2008, she had no right to seek maintenance not the Court had jurisdiction to grant it.

Learned Counsel for the petitioner placed reliance on the decision in the case of Krishan Gopal Vs. Smt. Usha Rani, (Delhi High Court) wherein, the learned single Judge held "parties whose marriage has been annulled u/s 12 of the Hindu Marriage Act can no longer enjoy the status of husband and wife under the provisions of Section 125 of the Code. To come within the definition of Explanation (b) to Section 125(1) of the Code qua Hindus, divorced wife is a wife who has been divorced or has obtained divorce u/s 13 of the Act. An application for maintenance u/s 125 of the Act by wife is not maintainable.

In the decision in the case of Sudha Suhas Nandanvankar Vs. Suhas Ramrao Nandanvankar, wherein the Division Bench held, "It is permissible for wife to claim permanent alimony notwithstanding decree of nullity on ground of non-disclosure of ailment of epilepsy even prior to marriage. Where, however, conduct of wife demonstrates that she is trying to take advantage of her own wrong or fraud to harass husband, no order of permanent alimony can be passed in her favour."

At the outset, it must be noticed that the decision cited by the learned Counsel has virtually been by implication overruled by the Division Bench of the Bombay High Court. There is permissibility for wife to seek maintenance even if marriage has been annulled or wife has been divorced, as held by the Division Bench in the decision cited supra. However, on facts, it is held that when fraud is noticed, then the wife will not be entitled to maintenance. Therefore, no need to make any observation with regard to the decision rendered by the learned Single Judge.

In the case of Mohd. Khan v. Sha Bano Begum And Others, reported in AIR 1985 SC 945, the Apex Court summarised the law on the subject which reads thus:

Under Section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the Court to pay a monthly maintenance to her at a rate not exceeding five hundred rupees. By Clause (b) of the Explanation to Section 125(1), ''wife'' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person or sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of Section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual''s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to Section 125(1), which defines ''wife'' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character.

Under Section 488 of the Code of 1898, the wife''s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of Clause (b) of the Explanation to Section 125(1), which provides that ''wife'' includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the Courts had held under the Code of 1898 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of ''wife'' so as to include a divorced woman lends even greater weight to that conclusion. ''Wife'' means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ''wife'' for the purpose of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.

From the exposition of law in the said judgment a portion of which is extracted hereinabove, there can be no doubt on the issue that wife who has been divorced is also entitled to seek permanent alimony from her husband under the provisions of Section 125 of the Cr.P.C. Thus, the first ground urged is overruled

The second ground is with regard to the capacity of the petitioner to pay maintenance. It is alleged that he was working in a private firm earning Rs. 3,500. However, the learned Counsel would not dispute that when he can maintained his wife. Therefore, there is no change in the situation relating to his earning capacity. Besides, he had all opportunities to demonstrate before the Court that he was incapable of earning or providing maintenance, which he has availed. The material evidence on record, as could be seen has been appreciated by the Trial Court in the right perspective directing the petitioner to pay maintenance at Rs. 3,000 per month to the respondent-wife, which does not call for interference. In the result, the petition is dismissed at the stage of admission itself.