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Judgment
B.S. Kapadia, J.—Both the above applications are filed by the original applicant Leelaben against her divorced husband Babupuri Dhanpuri.
The short facts of the case leading to the filing of these petitions are that the petitioner and the respondent No. 1 were married according to Hindu rites about 11 years prior to the filing of the maintenance application at Palanpur. The respondent No. 1-husband used to physically and mentally torture the petitioner-wife. The husband had the bad habits and, therefore, marriage life of the petitioner was not happy. The petitioner was also driven out of the house. After great mental agony on the wife the husband obtained customary divorce from the wife. It was the case of the petitioner that the divorce deed was executed between the husband and wife on 14-11-1983 and after the divorce she was residing at her father''s place. She was pregnant at the time of divorce and at the time of filing the application for maintenance child and the wife. It is the case of the petitioner that at the time of divorce no provision was made by the respondent-husband for her maintenance. The petitioner has no independent source of income and she was unable to maintain herself. While according to her, the respondent-husband is doing business of diamond polishing and he is also having agricultural income and his monthly income is more than Rs. 1200/- and therefore, she prayed for maintenance at the rate of Rs. 500/-per month and also prayed that she should be paid Rs. 1,000/- towards her maintenance during her pregnancy. Accordingly, she filed the application being the Criminal Misc. Appln. No. 97/83 in the court of the learned JMFC at Palanpur u/s 125 of the Criminal Procedure Code.
The learned Second Joint Judicial Magistrate at Palanpur by his order dated 6-2-85 passed the order for maintenance awarding Rs. 80/- per month from the date of the application and also awarded the costs of Rs. 50/- for the said application.
Being aggrieved by the said order the respondent No. 1 filed the Criminal Revision Application No. 18/85 in the court of the learned Sessions Judge, Banaskantha at Palanpur. The petitioner also feeling aggrieved by the said order on the point of quantum of amount of maintenance preferred Criminal Revision Application No. 24/85 in the Sessions Court, Banaskantha at Palanpur, for enhancement of maintenance. The learned Sessions Judge by his order dated 30-7-85 allowed the Criminal Revision Application No. 18/85 filed by the respondent No. 1 and dismissed the Criminal Revision Application No. 24/85 filed by the present petitioner. Being aggrieved by the aforesaid order these petitions have been filed by the petitioner.
Mr. S.V. Raju, the learned Advocate appearing for the petitioner submits that the learned Sessions Judge has committed material error of jurisdiction in allowing the revision application filed by the respondent-husband on the ground that the petitioner-wife has voluntarily surrendered her right of maintenance u/s 127(3)(b) of the Criminal Procedure Code. Mr. Raju submits that there are contradictory observations made by the learned Sessions Judge in para 9 of his judgment, which are as under :
...No doubt, this sub-section applies only after the order for maintenance is passed by a competent court, but it does not prevent a party from relinquishing her right at the time of her divorce. In view thereof, it can be said that the wife has clearly Waived her right to future maintenance and she had voluntarily surrendered her right to maintenance as contemplated in Sub-section (c) of Section 127(3) of the Criminal Procedure Code.
Mr. Raju submits that the learned Sessions Judge has rightly observed that "Rs. 3300/- is such an amount that it cannot be treated as a sufficient amount for maintenance looking to these hard days." However, he submits that the learned Sessions Judge has on account of misreading the provisions of the Act has committed the error of jurisdiction and, therefore, that order deserves to be set aside in the writ petition under Article 227 of the Constitution of India.
Mr. S.S. Belsare, the learned Advocate appearing for the respondent No. 1 submits that while deciding the application u/s 125 of the Criminal Procedure Code, the court is entitled to consider the provisions of Section 127 also. It is not necessary that the provisions of Section 127 of the Code can be invoked only at the time of cancellation of the earlier order for maintenance passed u/s 125 of the Code.
With a view to appreciate the rival contentions it is necessary to quote the provisions of Section 127 of the Code which read as under :
(1) On proof of a change in the circumstances of any person, receiving, u/s 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit:
Provided that if he increases the allowance, the monthly rate of five hundred repees in the whole shall not be exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made u/s 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(3) Where any order has been made u/s 125 in favour of a woman who has been divorced by or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that �
(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order�
(i) in the case where such sum was paid before such order, from the date on which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person to whom a monthly allowance has been ordered to be paid u/s 125, the Civil Court shall take into account the sum which has been paid to or recovered by, such person as monthly allowance in pursuance of the said order.
On perusal of Section 127 of the Code, it is clear that Sub-section (1) provides that the Magistrate may make such alteration in the allowance as he thinks fit provided there is proof of a change in the circumstances of any person, receiving, u/s 125 a monthly allowance or ordered under the same section to pay a monthly allowance to his wife, child father or mother. Thus, Sub-section (1) also presupposes that there should be the order u/s 125 and thereafter the question of making alteration in the amount of allowance would arise. Similarly, Sub-section (2) thereof speaks about cancellation or variation of the order passed u/s 125 in consequence of any decision of a competent civil court. Sub-section (3) thereof contemplates different circumstances in respect of the wife who has been divorced by or has obtained a divorce from, her husband for the purpose of cancellation of such order u/s 125. Sub-clause (a) of Sub-section (3) contemplates about the remarriage of the woman who has been divorced or who has obtained divorce and when the Magistrate is satisfied about the remarriage he would cancel such order, means the order for maintenance which is already passed. Clause (b) of Sub-section (3) is in respect of the only woman who has been divorced and that Clause does not speak for the woman who has obtained divorce and if such woman has received the sum which under any customary or personal law applicable to the parties on such divorce, then the order passed would be cancelled. Sub-clauses (i) and (ii) of Sub-section (3)(b) of Section 127 speak about the date from which the order would be cancelled. If such amount is received before passing of such order, then it would be from the date on which such order was made, but if such amount was given after passing of such order of maintenance, the order would be cancelled from the expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman. Now so far as Clause (c) of Sub-section (3) is concerned, that speaks of the circumstances in which the woman has obtained the divorce, which is different from Clause (b) of Sub-section (3). In that case if she had voluntarily surrendered the right to maintenance after her divorce, then the order of maintenance which is passed would be cancelled from the date thereof. Thus, reading carefully the whole of Section 127 of the Code, it is clear that it only speaks about the cancellation of the order or variation thereto and therefore, it pre-supposes the passing of an order u/s 125 of the Code. Therefore, Section 127 of the Code would come into operation only after the order u/s 125 is passed.
There is also Section 125(5) which speaks about the cancellation of the order i.e. the order for maintenance passed u/s 125, if there is a proof that the wife in whose favour the order has been made under this section is living in adultery or without sufficient reason she refused to live with her husband or that they are living separately with mutual consent,
So far as passing of the order u/s 125 is concerned, what is required is that a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. When that condition precedent or the evidence of aforesaid condition precedent to the satisfaction of the Magistrate is led in the case, the Magistrate can pass the order to make a monthly allowance of wife.
Therefore, the time when the application u/s 125 is to be considered, the Magistrate has to consider as to whether the person concerned has sufficient means and still however, he neglects or refuses to maintain his wife and further that his wife is unable to maintain herself.
On the point of considering as to whether the wife is unable to maintain herself when the wife is a divorced wife and at the time of divorce some amount under customary or personal law is given and whether that amount would be sufficient for maintaining herself, the Supreme Court in the case of Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, has held as under:
The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute... The purpose of the payment, ''under any customary or personal law'' must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself....There must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret otherwise is to stultify the project. The proposition therefore, is that no husband can claim u/s 127(3)(b) absolution from his obligation u/s 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance....
In the case of Zohara Khatoon v. Mohd. Ibrahim, 1981 Cri LJ 754 in para 25 the Supreme Court has observed as under :
In view of the reasons given and the circumstances discussed by us, it is manifest that in the instant case Section 127 does not apply at all because the husband has not given any application for cancellation of the maintenance on the grounds enshrined in Sections 127(3)(b) of the 1973 Code but this case is squarely covered by Clause (b) of the Explanation to Section 125(1) of the 1973 Code as a result of which the appellant in the eye of law continues to be the wife of the respondent, despite the decree for dissolution of marriage. The Magistrate was, therefore, fully justified in granting maintenance to the appellant...
The above observations would make it clear that Section 127 would be applicable only for the purpose of cancellation of the order passed u/s 125 of the Code. Therefore, it is clear that Section 127(3)(b) or (c) cannot be brought in at the time when the application u/s 125 is to be heard and decided. As stated above, the requirement of Section 125 is that there should be sufficient means with the husband or neglects or he refuses to maintain her. On these points if there is sufficient evidence on record, the Magistrate would be justified in passing an order for maintenance u/s 125.
As stated above, the learned Sessions Judge has made contradictory observations in his judgment holding that Section 127(3) would apply only after the order of maintenance is passed. The learned Sessions Judge has again applied the same and set aside the order passed by the learned Magistrate. In that view of the matter the order passed by the learned Sessions Judge deserve to be set aside.
Mr. Belsare further submits that as the whole matter was decided on this point, the matter requires to be remanded to the learned Sessions Judge for appreciating as to whether the learned JMFC has rightly come to the conclusion on the point that the respondent No. 1 has sufficient means and that he has neglected and refused to maintain the present petitioner who is unable to maintain herself. It appears that the learned Sessions Judge has only observed that it cannot be said that Rs. 3300/- is such and amount that it can be treated as a sufficient amount for maintenance looking to these hard days. That would be the factor to be considered at the time of determining the quantum of maintenance, if at all the maintenance amount is to be awarded to the petitioner. Mr. Raju, the learned Advocate submits that when this matter is to be remanded, the order passed in Criminal Revision Application No. 24/85 for enhancement of maintenance also should be set aside, as the said application was disposed of in view of the fact that the revision application filed by the respondent No. 1 was allowed by the learned Sessions Judge. Mr. Raju has also brought to my notice that in the Divorce Deed the respondent No. 1 has stated his occupation to be of diamond polishing, The learned Sessions Judge has not considered the same.
In result, the order passed by the learned Sessions Judge, Banaskantha at Palanpur in Criminal Revision Applications No. 18/85 on 30-7-85 is set aside and the matter is remanded to the learned Sessions Judge. The learned Sessions Judge is directed to decide the Criminal Revision Application Nos. 18/85 and 24/85 in the light of the observations made hereinabove and also according to law. The learned Sessions Judge is directed to dispose of both the aforesaid criminal revision applications within two months from the date of receipt of the R. & P. from this Court. The respondent No. 1 Goswami Babupuri Dhanpuri is directed to pay the maintenance at the rate of Rs. 80/-per month to the petitioner till the aforesaid revision applications are decided by the learned Sessions Judge. If at all any amount is paid by the respondent No. 1 to the petitioner by way of maintenance, that amount will be adjusted towards the amount to be paid as per the order passed by the learned JMFC. Rule is made absolute in both the applications.