P. Lakshminarayana vs P. Lalithamma and Another

Jagannadha Raja, J.—This petition is filed u/s 482 Cr. P .C. in maintenance proceedings. The. petitioner-husband claims that the order of maintenance passed in M.C. No, 41 of 1988 on the file of the Judicial First Class Magistrate, Alur, which was confirmed in Criminal Revision Petition 47 of 1990 should be set aside on the ground that in the petition filed by the wife, there is no averment to the effect that she is unable to maintain herself.

Mr. O. Manohar Reddy, who argued the case of the revision petitioner contends that after the amendment of Section 125 of the Criminal Procedure Code, it is incumbent on the person claiming maintenance to aver that he or she is unable to maintain herself. That is the foundation of the claim and in addition to that, the petitioner should establish refusal or neglect to maintain. He relies upon three decisions in support of the argument.

It is an admitted fact that in the petition filed u/s 125 Cr. P.C. the petitioner in this case did not make an averment to the effect that she is unable to maintain herself. In paragraph 6 of the petition she stated that she was residing with the brother of her grand father Ramanjanaiah as she did not want to go back to her parents'' house, who considered her as a burden on them.

Mr. Somakonda Reddy appearing for the respondent-wife contends that this averment in substance indicates that she is unable to maintain herself.

In the course of evidence, PW1 did not mention that she is unable to maintain herself. Another interesting fact is that in the counter filed by the husband, no objection was taken on this particular ground. The trial Court as well as the revisional Court have categorically recorded findings to the effect that she is unable to maintain herself. In this background, we have to see whether relief can be granted to the petitioner-husband in this petition u/s 482 Cr. P.C. on the technical ground that there is no averment to the effect that she is unable to maintain herself.

In Manmohan Singh v. Mahindra Kaur (1) 1976 Crl. L.J. 1964, a single Judge of the Allahabad High Court laid down that u/s 125(1)(a) Cr. P.C. maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband refuses to maintain her but can only be granted to a wife who is unable to maintain herself. The Court pointed out that as it was not alleged in the application that she was unable to maintain herself and as the Chief Judicial Magistrate as well as the Sessions Judge did not record a finding to the effect that she was unable to maintain herself, the order of maintenance was struck down. To similar effect is a single Judge decision of the Karnataka High Court in Zubeda Bi v. Abdul Khader (2)1978 Cr. L J. 1555. The learned Judge held that in view of the amendment made in the Criminal Procedure Code and the addition of the word''s "unable to maintain herself" which is a departure from the old Code, the petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and he has neglected to maintain her, Haunsabai v. Balakrishna (3) 1981 Crl. L.J. 110 is another single judge decision of the Karnataka High Court which lays down that Section 125 contemplates that maintenance should be provided only to a wife who is unable to maintain herself or has no sufficient means to maintain herself and therefore where in her petition for maintenance the wife failed to aver positively that she was unable to maintain herself and substantiate it by adducing evidence the petition will have to fail. These three decisions relied upon by the petitioner''s advocate have been considered in a Division Bench Decision of the Karnataka High Court in Malan v. Baburao (4) 1981 Crl. L.J. 184. After specifically referring to all these decisions and after referring to the provisions of Section 125 Cr. P.C. after amendment, the Division Bench observed in paragraph 10 as follows:

"But, this reasting of the old provision does not signify any fundamental change in the law and it has been done merely to clarify and make explicit what was formerly implicit."

The Court further observed in paragraph 22 as follows :

"The said petition (Maintenance application) has to be decided in accordance with the procedure laid down in Chapter IX of the new Code which is self contained cannot be disputed. If that is so the strict rules of pleadings applicable to the pleadings in a Civil suit cannot be applied to a petition u/s 125 of the New Code. Hence merely because the wife has not averred in her petition that she is unable to maintain herself her petition cannot be dismissed. It is for both the parties to adduce evidence on that point and it is for the Court to decide whether the wife is able or unable to maintain herself."

The Court further observed in paragraph 23 that in a petition u/s 125 of the new Code the wife is only required to prove neglect or refusal by the husband. After referring to a decision in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, which did not specifically deal with the question whether an averment "unable to maintain herself" should be incorporated or not the Division Bench observed as follows :

"Hence we are clearly of the view that instead of the wife proving the negative it is for the husband to prove that the wife is abel ot maintain herself as it is a defence open to him."

Considering the fact that the Division Bench decision has reviewed all the three single Judge decisions discussed earlier I feel that this Court should follow the observations of the Division Bench. That view receives support from a single Judge decision of this Court in Crl. R.C. No. 404 of 1980 dated 19.9.80 rendered by His Lordship Jayachandra Reddy, J. reported in R. Satyanarayanamma v. R. Venkataratnam 1980 (2) APLJ 26 (Short Notes). His Lordiship categorically found that in a petition u/s 125 Cr. P.C. averment that she is unable to maintain herself is not necessary. His Lordship observed that it is not necessary that the wife should express in a legalistic manner viz by making a specific averment and the Courts have to infer from the evidence and other surrounding circumstances.

Mr. Somakonda Reddy appearing for the respondent wife brought to my notice a Full Bench decision in Re : Purtipati Jagga Reddy (7) 1979 (1) APLJ I and urged that in a petition u/s 482 Cr. P.C. to get a relief at the hands of the High Court a party will have to establish that there has been abuse of the process of the Court or that there has been miscarriage of justice. A decision in Aijaz Ahmad Lalri Vs. Smt. Shajehan Begum and Others, is a single Judge decision which takes a different view from the one expressed in Manmohan Singh v. Mahindra Kaur (I supra). In this decision the Court held that "Although the wife had failed to aver in the petition for maintenance that she was unable to maintain herself that statement in the petition that she was sent to her parents'' place and her father was maintaining her by necessary implication amounted to an assertion that she had no independent means of living but was being maintained by her father. Further from the evidence recorded the Magistrate found as a fact that the wife was unable to maintain herself and the finding was upheld in revision. In view of the finding of fact so recorded the High Court would not exercise inherent powers u/s 482 in favour of the husband and quash the order of maintenance on the ground that the wife had failed to specifically state in her petition u/s 125 that she unable to maintain herself." The Court observed in paragraph 4 of the judgment that the powers u/s 482 Cr. P.C. are exercised to secure the ends of justice and to prevent abuse of the process of any law.

Judged in the light of these decisions; in the present case if this Court exercises powers u/s 482 Cr. P.C. then it would be an act of perpetrating injustice. If the Court refuses to exercise powers u/s 482 Cr. P.C. justice done is allowed to continue though it can said technically that there is no averment in the petition to the effect that she was unable to maintain herself.

Considering the fact that in the course of the evidence it was made clear that she had absolutely no means to maintain herself and as she being maintained by others from the day she was neglected by the husband the Courts are justified in recording the finding that she is unable to maintain herself and then awarding maintenance. On a mere technical ground this Court will not interfere u/s 482 Cr. P.C. to set aside the order of maintenance. In the result the Criminal Petition is dismissed.

Before I part with the case I would like record my appreciation for the exhaustive study and eloquent arguments advanced by the petitioner''s Counsel Sri O. Manohar Reddy I am thankful to him for the deep study he has made and for bringing all the decisions on this aspect to my notice.