Rupalben and Another vs State of Gujarat and Another

S.G. Shah, J.—Rule. Learned APP Ms. Jirga Jhaveri waives service of rule for respondent No. 1 and Ms. Khushbu Vyas, learned advocate waives service of rule for respondent No. 2. The judgment and order dated 19.10.2012 by the Addl. Family Court, Vadodara is under challenge. The impugned order was to the effect of rejecting Cr.M.A. No. 2416 of 2010, which was filed by present applicants u/s. 125 of the Code of Criminal Procedure ("Cr.P.C.", for short) claiming maintenance from respondent No. 2, who is husband of applicant No. 1 whereas father of minor applicant No. 2. As usual, the applicant - wife has claimed maintenance from respondent - husband on the ground that he has ill-treated her and harassed her when she was at her in-law''s house. Some details of disturbance between the parties have been narrated in the original application which was originally numbered as Cr.M.A. No. 2416 of 2010. It was transferred from the Court of Magistrate to the Family Court, Vadodara. Petitioner has alleged that respondent - husband has never disclosed the true fact about his life and earning activities as well as earnings and abruptly changed the business and always quarreled with the applicant No. 1 and her parents and, ultimately, even after birth of child, the respondent No. 2 has never understood his responsibility and took huge loan from different banks and entered into huge debt and, ultimately, respondent No. 2 has deserted the applicant from their house and started to stay with his parents.

So far as income of the respondent No. 2 is concerned, it is the case of the petitioners before the trial Court that respondent No. 2 was having a business, he has sold his shop and ultimately he was serving with some business house and earning more than Rs. 5000/- p.m. However, petitioners have also categorically admitted in his petition itself that to maintain herself and her minor son, she is also doing some job, but stating that her earnings are not enough to maintain both of them. Therefore, she has claimed Rs. 1500/- towards maintenance for herself and Rs. 1000/- towards maintenance of minor applicant No. 2, which includes amount for other requirement like medical expenditure etc. After full trial of such application for maintenance, the Family Court, Vadodara has by impugned judgment, rejecting such application for maintenance mainly on the ground that there is clear admission by the petitioner No. 1 - wife that she is serving in Aditi Vidyalaya since last two years and that actually she had left the house of respondent No. 2 with all necessary household and practically she has conveyed the respondent No. 2 that she had locked the house and thereby the respondent No. 2 should not come to that home, but he can go to the house of his parents. The impugned judgment is reasoned judgment after relying upon some decisions cited by concerned parties. However, when Family Court has rejected the application for maintenance, it was necessary to examine the rival issues on merits. For the purpose, record and proceedings was called for from the trial Court.

On perusal of record and considering the rival submissions by both the learned counsel, prima facie it can be said that petitioner No. 1 - wife is certainly earning some amount when she has admitted that she is serving with Aditi Vidyalaya, Manjalpur for last two years. It is also admitted fact that at the relevant time, respondent No. 2 was not occupied in any earning activity though he was owing a shop and doing his own business, because he has sold out his shop and then he has started some job. However, the petitioner No. 1 has denied the suggestion that on the date of evidence, respondent No. 2 was not doing any earning activity.

It is evident from the cross-examination of the petitioner No. 1 that she has left the house of the respondent No. 2 when he was on his job by putting her own lock and that she conveyed to respondent No. 2 to manage his affairs on his own and to go to his parents house and not to come to such rented house where they were residing together. It is also categorically admitted by her that all the household goods like television, fridge, atta-grinder, mixer, ornaments, clothes, utensils as well as passbook, key of locker etc. were occupied by her in her control. She has also admitted that at the relevant time, the dispute was regarding the bank loan whereby respondent has created huge debt. However, she denies the suggestion that such loan was taken for starting beauty parlour for her and that respondent No. 2 was pressing her to complete the course of beauty parlour. She has also admitted that her parents were serving, but on the date of deposition her father had retired; whereas her mother had opted VRS. However, she has denied that she was running a beauty parlour, but she admits that she is serving. However, it is her say that her income is not sufficient to maintain herself and her son. The only admission against her is to the effect that respondent No. 2 has not deserted her but she has deserted the respondent No. 2.

As against such oral evidence of the petitioner No. 1 - wife if we peruse the evidence by respondent No. 2 - husband, he has also alleged several attitude of the petitioner No. 1. It is also alleged that nature of the petitioner No. 1 is so worse that it was difficult for them to stay in any house as a tenant and ultimately she has opted to stay near the house of her parents, but she was not cooking both the meals. It is also alleged that when he was not available at home, she had shifted all their household and silver and golden ornaments, key of bank locker, passbook of bank with all valuable electronic and electrical equipments, which are referred herein above to the house of her parents and ultimately she has conveyed him on phone that now he should forget her and their minor son. It is further stated that she is serving with Aditi Vidyalaya, Manjalpur and earning Rs. 10000/- p.m. It is also stated that when petitioner has conveyed the respondent No. 2 that now she does not want him and he should stay with his parents and even when the respondent No. 2 has tried to meet his son, the petitioner No. 1 has given threat and does not allow the respondent No. 2 to even meet his son. On such submission, it is requested by the respondent No. 2 to the trial Court that since the petitioner No. 1 is serving as a Supervisor in Aditi Vidyalaya, Manjalpur and running beauty parlour and thereby earning more than Rs. 10000/- p.m. and as against that she is unable to get any employment and being unemployed, he does not have any income and that practically the petitioner No. 1 has driven him out of their house, petitioner No. 1 has taken disadvantage of the judicial process.

However, during cross-examination, it has been revealed on record that the marriage life of the parties were of 14 years. Initially, they were residing in joint family. At that time, respondent No. 2 was owning one jewellery shop of his own and was dealing in jewellery. It is also admitted that initially he has invested Rs. 5 Lacs, but he has taken loan for the business and when he could not pay back the loan, he has to sell his shop. It is also admitted that the dispute between them was because of financial crisis of the family. Therefore, he has decided to live separate from his parents. It is also admitted that even after staying separately at Manjalpur, he has sold second shop also and thereafter he is not doing any business. He has categorically admitted that it is true that it was difficult for the petitioner No. 1 to run the house because he was not earning anything and his parents were not helping him. However, he denied the suggestion that therefore petitioner No. 1 has to rely upon her parents for their maintenance. It is also denied that for the same reason he was demanding money from his in-laws or that in absence of income he was committing cruelty upon the petitioner No. 1. However, he admits that petitioner No. 1 wife has gone to her parents house without informing him because it was difficult for her to manage their house in absence of his income. So far as earning activity and capacity are concerned, it is admitted by him that he is not involved in any earning activity and that he is not serving in Shah Accounting Services or getting Rs. 7000/- p.m.

Unfortunately, as it has been observed in most of the cases for maintenance u/s 125 of the Cr.P.C., herein also except oral evidence of both the parties, there is no other evidence on record so as to prove any particular event or fact on either side may be because of unavailability of such evidence in other form.

Based upon above-noted gist of deposition of both the parties, the Additional Family Court, Vadodara had framed four points for its determination, which reads as under:-

1) Whether it is proved that the opponent has deserved the applicant, without any reasonable cause or excuse?

2) Whether the applicant No. 1 is unable to maintain herself and her minor son i.e. the applicant No. 2, born to her from the wedlock of the opponent?

3) Whether the applicants are entitled to claim maintenance from the opponent? If, yes? What amount?

4) What order?

The Family Court has determined all the findings in negative against the petitioners. After discussing the factual details, but more particularly on the basis of admission by the petitioner No. 1 that she has left the house of by locking the house and by keeping control over the household and other available materials which are referred herein above. The Family Court has also discussed previous decisions which have been cited by the parties and drawn adverse inference against the petitioners that she has failed to prove that she is unable to maintain herself. So far as petitioner No. 2 is concerned, the Family Court has further observed that though it is not the choice of the minor where to stay i.e. either with the father or with the mother when they are separated, it is the duty of the parents to maintain their child wherever he/she may be. It is further stated by the Family Court, Vadodara that if both the parties are earning, it is the duty of both of them to maintain the minor and that when husband has incurred loss in his income and has sold the shop and thereafter could not get the employment and considering that as against unemployment of respondent No. 2 - husband, when the petitioner No. 1 - wife is earning something, it is her duty not only to maintain herself but also to maintain petitioner No. 2 and, therefore, Family Court has refused maintenance to minor - petitioner No. 2 also.

Both the parties have relied upon several citations, which are summarized as under:-

a) Durga Prasanna Tripathy Vs. Arundhati Tripathy, , wherein the Apex Court has dealt with the issue of maintenance with reference to Hindu Marriage Act. Though wife was employed, considering the economic condition of the husband and status of the parties, additional Rs. 1 Lac was granted while confirming divorce between the parties though the trial Court has fixed such amount as Rs. 50000/- and though husband has paid such amount as permanent alimony.

b) Deb Narayan Halder Vs. Smt. Anushree Halder, , wherein while dealing with the issue of maintenance u/s. 125 of the Cr.P.C., confirming the judgment of the Magistrate, refusing maintenance to the wife, but granting maintenance to minor child when there was no evidence of torturing by the husband to the wife, and wife had left her matrimonial home on her own though she was not compelled by the husband to leave her matrimonial home nor had he threatened the wife with dire consequences if she did not leave his house, when wife was claiming that staying with the husband was dangerous for her life. Therefore, learned Magistrate held that when wife having left her matrimonial home without any justifying ground, she was not entitled to maintenance but their minor son is entitled to maintenance and thereby awarded Rs. 1500/- p.m. When such order was challenged before the High Court, High Court has allowed the maintenance to wife also and, therefore, Apex Court has while setting aside the award of maintenance in favour of the wife held that Court is not permitted to conject and surmise so as to make out the third case not pleaded by the parties. Thereby its findings must be based on evidence produced before it by the parties. Thereby, it is stated that the Court has to answer the query which is raised to it by the parties through their pleading.

There cannot be any question or query to such legal position. However, it is certain that even in such reported case, what Apex Court has decided is basic principle of jurisprudence that findings of the Court should based on the evidence produced by the parties and, therefore, as decided by the Supreme Court in that case is with reference to the evidence before the Supreme Court in that case. Thereby, without examining the available evidence, it cannot be said that only because Supreme Court has decided something in this case, it is the binding precedent in all other cases.

c) In Dr. Rajneesh Rajpurohit Vs. Savita and Another, , wherein the Rajasthan High Court was dealing with the issue of maintenance under the Hindu Marriage Act. The Rajasthan High Court has rejected the claim for maintenance by the wife when she was in Government service and was earning more than Rs. 8000/- as salary and when it was found that it was wife who was guilty of committing cruelty on husband and earning more than husband. There was no dispute before the Apex Court that the wife was having fixed income of approximately Rs. 9000/- whereas allegation was to the effect that husband was earning Rs. 25000/- p.m. as advocate. However, probably there was no evidence about specific income of the husband.

Thus, out of the cited cases, two are with reference to the Hindu Marriage Act and, therefore, except for taking support from such decision, it cannot be said that they are binding precedent so far as proceeding u/s 125 of Cr.P.C. is concerned because both the provisions are for different purpose and of different nature though in both the enactments provision for maintenance is provided.

There is no dispute that provision of maintenance under the Cr.P.C. in Chapter 9 which deals with maintenance of wife, children and parents are measures of social justice to prevent vagrancy and destitution and thereby it becomes natural duty of a man to maintain wife and children when they are unable to maintain themselves.

Though litigation u/s. 125 of the Cr.P.C. are numerous and though its provision is now well-known, it would be appropriate to recollect the provision in verbatim to decide such a case where there is typical evidence than normal. For the purpose Section 125 is reproduced herein below:-

Section 125 - Order for maintenance of wives, children and parents

If any person having sufficient means neglects or refuses to maintain.-

his wife, unable to maintain herself, or

his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

his father or mother, unable to maintain himself or herself, A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

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No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

The plain reading of the provision of law quoted herein above makes it clear that responsibility and liability of a person to maintain wife, children and parents rests on simple condition that if any person having sufficient means neglects or refuses to maintain them (wife, children, parents), he can be ordered to make a monthly allowance for maintenance for his wife or child or parents at such monthly rate. Therefore, basically, this provision is against the husband as against the provision under the Hindu Marriage Act where the responsibility is of any spouse. So far as persons entitled for maintenance are concerned, Section specifically makes it clear that wife, child and parents are entitled to maintenance, the word minor and wife are also defined under explanation of such sub-section 1. However, at present there is no dispute that whether petitioner No. 1 is wife or not or that petitioner No. 2 is minor child or not. Therefore, such explanations are not material at present. The sub-sections 4 and 5, categorically makes it clear that when wife is not entitled to maintenance, wherein it is specifically enacted by the legislature that wife is not entitled to receive maintenance if she is living in adultery or if she refuses to live with her husband without any sufficient reason or that they are living separately by mutual consent. In sub-section 5 right is created in favour of the husband to ask for cancellation of order of maintenance against him and in favour of wife if he is able to prove any of the above condition. Thereby, practically, provision of sub-section 5 is for modification or cancellation of an order of maintenance as and when any of the above condition came in existence even after order of maintenance is passed in favour of the wife. Whereas subsection 4 is confirming such condition at initial stage at the time of passing of order of maintenance.

With reference to above provision of law, if we peruse and scrutinize the factual details of present case, then what is required to be considered is as under:-

(a) Whether husband has sufficient means and neglects the wife and minor child to maintain;

(b) Whether husband has sufficient means and refuses to maintain wife and minor child;

(c) Whether wife is living in adultery;

(d) Whether wife has refused to live with husband without sufficient reason; and

(e) Whether they are living separately by mutual consent;

Out of above five issues or points, point Nos. (c) and (e) i.e. wife living in adultery or they are living separately by mutually consent are not relevant at present.

Rest of the three issues are required to be dealt with jointly since they are interconnected.

With above clarity, if we examine the impugned judgment, the trial Court has though rightly framed the points for determination, unfortunately, consideration of evidence on record is seems to be improper for following reasons;

First of all, it was the duty of the Court while dealing with such applications to examine that whether husband has neglected or refused to maintain the wife though he is having sufficient means. If we consider such issue, then, it is clear that husband was having good business, but he could not manage it properly and sold his shops and fails to maintain his wife and child. Therefore, even if it is alleged and submitted that at the time of separation, husband was not having any employment, it cannot be said that he did not have sufficient means. It is not necessary to drive in past, when in so many cases and almost all the Courts have categorically confirmed that the meaning of terminology "sufficient means" with reference to Section 125 of the Cr.P.C. is not limited to actual earnings only, but it refers to earning capacity of an able and prudent man. Otherwise, every husband may to avoid payment of maintenance, stop his earnings by one or other means. In the present case also what is transpired is only to the effect that day after another, husband has started to let-go his properties and income, more particularly when there was disturbance between them since long. Therefore, when respondent No. 2 was capable to earn for bread and butter i.e. livelihood of his own family, he cannot be permitted to say that he is unemployed and, therefore, he cannot maintain his wife and minor son. Needless to say that considering the social set-up of our country, it is primary duty of the husband to maintain his wife and children. Provision of Section 125 also makes it clear that husband can refuse the payment of maintenance only on the ground which are enumerated herein above and for no other grounds.

Therefore, in the present case, now the issue remains for consideration is limited that whether action of the petitioners to refuse to live with her husband is without any sufficient reason or is there any sufficient reason for refusal to live with the husband. Therefore, though petitioner No. 1 has admitted that she has left the house of the husband, if such action is based upon and supported by any sufficient reason, then, it cannot be said that only because she has refused to stay with her husband, she is not entitled to maintenance only because she admits that she refused to reside with her husband.

If we peruse the entire evidence with this reference, then, it becomes clear that petitioner No. 1 has not only pleaded, but alleged cruelty and ill-treatment by the in-laws and at the time of actual separation, she has categorically stated that respondent No. 2 - husband has created huge debt and did not listen to her and stopped her business by selling [shops and, therefore, it was difficult for her to stay in a house where there is financial crisis with a minor child who needs support for his growth. Therefore, if she has started to stay separately, it cannot be said that there is no sufficient reason for her to stay away from the person who is not earning to maintain his own family and waiting for earnings from the wife who has the responsibility to grow-up the small kid also.

To prove such situation, petitioner No. 1 wife has produced certain documentary evidence on record in the form of registration of a firm of respondent No. 2 - husband, namely, Shrinathji Jewellers, wherein respondent No. 2 is shown as owner of the firm. Tax bill of municipality wherein also name of respondent No. 2 is shown as an occupant and owner, payment of sales-tax in the name of such firm, several documents of some financial institutions like Cholamandalam DBS Finance Ltd., City Finance Ltd., Kotak Mahindra Prime Ltd., Kotak Mahindra Bank Ltd., HDFC Bank Ltd., ICICI Bank Ltd. etc. to show and prove that husband is having sufficient means since he has financial activities with so many financial institutions. Moreover, the petitioner No. 1 has also produced photocopy of visiting card of respondent No. 2 to show that respondent No. 2 is extending accounting service to private firms like builders and atleast on 18.2.2013 he has given an advertisement in Gujarat Samachar for his firm Shah Accounting Services with his name and telephone number disclosing that he is dealing in the service of computerized accounting, VAT, income tax and latest work technique at most competent rates. Therefore, prima facie it cannot be said that respondent No. 2 does not have sufficient means to maintain wife and minor child being petitioners herein. When petitioners have filed an application for maintenance and when respondent No. 2 - wife is opposing such application with all zeal and means, it is sufficient evidence to confirm that respondent No. 2 - husband has neglected and refused to maintain the petitioners. Whereas considering the allegations and evidence in form of deposition by the petitioners regarding ill-treatment, demand of dowry, cruelty and harassment by respondent No. 2 and her in-laws as well as attitude of the respondent No. 2 not to support the family financially, when they have to stay separate from the parents goes to prove that petitioner No. 1 has sufficient reason to stay away from respondent No. 2 so as to maintain their minor child. It is also evident that the income of the applicant No. 1 may not be sufficient enough to maintain her and her minor child and even husband also if he does not want to earn livelihood for all of them. So far as keeping the household and other materials with petitioner No. 1 is concerned, at the most it may be taken care of while considering the quantum of maintenance, but only on such ground maintenance cannot be refused. However, as seen in most of the cases, both the parties have failed to lead appropriate evidence on record for consideration of rival contentions more particularly as carved herein above i.e. means of husband, reason for wife to stay separate and income of both the parties, so as to decide the issues.

In any case, the impugned judgment is not proper when maintenance of minor - petitioner No. 2 is also refused. It can never be stated that respondent No. 2 is not liable to maintain petitioner No. 2. With all above factual details and discussion if we peruse the original demand of the petitioner No. 1, it becomes clear that petitioner are not claiming handsome amount of maintenance from the respondent No. 2 so as to get full amount of monthly requirement to maintain two persons in such time of inflation where everything is costly, when petitioner No. 2 is claiming only Rs. 1500/- for herself and Rs. 1000/- for minor child towards maintenance.

However, at present scrutinizing of record and proceedings makes it clear that both the parties have failed to produce ample evidence as discussed herein above like means of husband, reason for wife to stay separately and earning capacity of husband, though several documents are produced for the first time in the record of this Court so as to prove that respondent No. 2 - husband is extending his accounting services and has so many financial transactions with several financial institutions. Therefore, in view of decisions in following cases, it would be appropriate to remand the matter to the trial Court for deciding it afresh after providing ample opportunity to both the sides to produce relevant evidence:-

a) Mst. Ramrati Kuer Vs. Dwarika Prasad Singh and Others,

b) Ranip Nagar Palika Vs. Babuji Gabhaji Thakore and Others,

Proviso to sub-section 1 of Section 125 of the Cr.P.C. Empowers the Courts to order monthly allowances for the interim maintenance of wife or child; whereas subsection 2 of Section 125 provides that maintenance or interim maintenance and expenses of proceedings shall be payable from the date of application for maintenance or interim maintenance if so ordered.

However, when the trial Court has not awarded any amount of maintenance to minor petitioner No. 2 also, it is necessary to direct the respondent No. 2 to pay amount of Rs. 1000/- for petitioner No. 1 and Rs. 1000/- for petitioner No. 2 as interim maintenance from the date of application i.e. from 13.04.2009 till the final disposal of Criminal Misc. Application No. 2416 of 2010 afresh by the Family Court, Vadodara.

Thereby, the revision application is partly allowed in following terms. The judgment and order dated 19.10.2012 in Criminal Misc. Application No. 2416 of 2010 (original No. 407 of 2009) is quashed and set-aside in following terms:-

(1) The matter is remanded back to the trial Court to decide it afresh after providing reasonable opportunity to both the sides to prove their case in pursuant to observations made in this judgment. For the purpose both the parties may produce relevant documentary and oral evidence.

(2) Till such application is decided finally, respondent No. 2 - husband shall pay an amount of Rs. 1000/- for petitioner No. 1 and also an amount of Rs. 1000/- for petitioner No. 2 as interim maintenance w.e.f. 13.4.2009.

Rule is made absolute to the aforesaid extent. R & P be sent back forthwith.