Smt. Jito vs Buta

M.M. Punchh, J.—A young wife has invoked the inherent jurisdiction of this Court challenging the order of the Additional Session Judge, Ferozepur where by her claim for maintenance against her husband was negatived, though initially conceded by the Court of first instance. The circumstances leading to this petition are these:

Jitu Petitioner and Buta Respondent, the two spouses, belong to the poorer sections of the society. She was married nearly four years prior to 16th July, 1977, the date of presentation of the petition for maintenance. According to her, she was being maltreated by the Respondent right from the beginning. 1/1/4 years prior to filing of the petition, she was given a beating and turned out. She took shelter in the house of her parents. She made efforts to seek rehabilitation in her husband''s house with the intervention of respectables, but to no avail. She claimed that the Respondent to be earning around Rs. 15,000/- per annum and wanted maintenance at the rate of Rs. 200/- per mensum. The husband countered the petition pleading that beforehand 6th June. 1977, he had moved the matrimonial Court with a petition u/s 9 of the Hindu Marriage Act for restitution of conjugal rights. Challenging the maintainability of the petition, he pleaded that the wife had willfully withdrawn from his society and she could not take advantage of her own wrong. He refuted the allegation that he ever maltreated the Applicant. He counter-pleaded that the wife wanted him to leave his parental home and settle in the village of the parents of his wife. According to him, he could not oblige the wife as he had old parents to look after with whom the wife always picked up quarrels and even abused them. He expected that the wife would realise her mistake one day, but instead she was living in her parents house, having taken with her, in his absence, her clothing and ornaments without his consent. He expressed his willingness to keep his wife under his roof.

Both the parties led evidence. The trial magistrate considered the evidence and granted the Petitioner maintenance at the rate of Rs. 45/- per mensum by recording findings, some of which may be reproduced:

When the matrimonial harmony is disrupted, both the parties must share the blame for the same. The Applicant is, thus, not to blame alone for matrimonial disharmony in this case, She appears to have been neglected by the Respondent, when she gave birth to a still born child, nobody appeared to have gone to enquire after her health even. In these circumstances unless a sincere patch up is brought about be ween the parties, the Applicant appears to be justified in living separately from the Respondent.

It may be relevant to add here that the Respondent has already filed an application for restitution of conjugal rights against the Applicant and the same is still pending adjudication in the Civil Court at Fazilka. The question whether the Respondent is entitled to the restitution of conjugal rights or not will be decided by that Court independently of the outcome of this application.

The Applicant is the legally wedded wife of the Respondent and it is the duty of the Respondent to maintain her. So long as the matrimonial harmony is not restored to the family and the parties live apart, the Applicant is entitled to claim maintenance from the Respondent as it is his duty to maintain her after the marriage.

The parties to the litigation belong to the poor section of the community. So long as the Applicant lives apart, she is not entitled to claim more than bare subsistence from the Respondent. The Respondent in this case does not appear to be owning any property in his name.

Thus, keeping in view the facts and circumstances of the case and socio economic background of the parties, I feel that a sum of Rs. 45/- per mouth will be sufficient for the maintenance of the Applicant. She can, of course, supplement this amount by engaging herself in useful labour.

The Respondent will however, be at liberty to seek change modification in the order after the decision of the application for restitution of conjugal rights. I accordingly order that the Respondent will pay a sum of Rs. 45/- per month to the Applicant as maintenance.

Cross revisions were filed by the parties in the Court of Sessions the wife claiming enhancement of maintenance and the husband wanting the order to be quashed. The first Additional Session Judge, Ferozepur, allowed the petition of the husband and rejected the petition of the wife, denying her right of maintenance. It weighed with him to deny the claim of the wife on the ground that she had not pleaded in her petition by making a specific allegation that she was unable to maintain herself. Section 125 of the Code of Criminal Procedure, 1973 in contrast to Section 488 of the Code of Criminal Procedure, 1898 entitled a wife to claim maintenance from her husband having sufficient means who neglects or refuses to maintain her, but unable to maintain herself. Inability to maintain herself is the pre-condition. On the evidence, he took the view that the wife belonged to a community where women worked as agricultural labourers and so did the husbands and since there was no specific allegation or proof that the wife was in any way incapacitated from earning her livelihood, it could not be said that she was unable to maintain her self.

I admitted this petition on 1st April, 1980 to test the legality of the view taken. During its pendency, the husband filed Criminal Miscellaneous No. 5047 of 1980 seeking permission to produce an attested copy of the judgment dated 30th October, 1979 passed by the matrimonial Court relating to the decision inter partes u/s 9 of the Hindu Marriage Act, 1955. The same was ordered to be heard with the main petition. The counsel for the Petitioner was appraised of the said judgment. The matrimonial Court allowed the petition observing as follows:

As discussed above, the evidence on the record does not disclose any legal ground why the application should not be granted. The grounds of cruelty and adultery taken by the Respondent have not been proved. The truth of the statement made in the petition has been established. There seems to be a genuine desire on the part the Petitioner to keep the Respondent with him. The evidence thus proves that the Respondent has withdrawn from the society of the Petitioner without any reasonable excuse and I hold accordingly.

In Manmohan Singh v. Smt. Mahindra Kaur 1976 CLJ (sic) 4 16 , B.N. (sic) J. of the Allahabad High Court disentitled the wife from claiming maintenance in the absence of an allegation in the petition that she was unable to maintain herself as also in the absence of such a statement recorded in Court. Then again V.N. Verma J. of the same Court in Bishambher Dass v. Smt Anguri and Anr. 1978 Hindu Law Reporter 482, non suited the wife since her petition was bereft of the important allegation that she was unable to maintain herself and her statement in Court that she was maintaining herself with some difficulty was held not tentamount to her being unable to maintain herself. Yet again G.M. Sabhahit J. of the Karnataka High Court in Smt Subedabi v. Abdul Khader 1978 CLJ 1555 endorsed the view of the Courts below who had found the claim for maintenance of the wife not tenable since she had neither mentioned a word in her petition nor had even whispered in her statement in Court that she was unable to maintain herself. In G. Mariah Vs. G. Vijayalaksmi, , a Single Bench of of the Andhra Pradesh High Court, while taking note that the wife unable to maintain herself alone could seek an order u/s 125, Code of Criminal Procedure, against her husband explained the words "unable to maintain herself" to include only such expenses which are neither penurious nor luxurious and which would meet her daily necessities and keep her away from starvation. But now H.N. Kapoor J., of the Allahabad High Court in Abdul Salim v. Smt. Najima Begum and Ors. 1980 CLJ 272 refused to exercise inherent jurisdiction of the High Court u/s 482 Code of Criminal Procedure in v. case arising u/s 125, Code of Criminal Procedure, where the finding was returned by the trial Magistrate granting maintenance that the wife was unable to maintain her elf despite the plea that there was no such averment in her application or her statement Sustenance to the view was taken from a judgment of the Supreme Court in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, , to hold that too technical a view is not to be taken in such cases.

It is a settled principle of civil law that no amount of proof is permitted in the absence of pleading 10 a fact should the pleading of the wife claiming maintenance u/s 125 Code of Criminal Procedure, conform to the aforesaid principle of civil law? That the proceedings under this section cannot be described as trial for an offence is too patent to be elaborated. Equally, such proceedings cannot be termed to be a summons case merely because evidence in such proceedings has to be recorded in the manner prescribed for a summons case, as given in Section 126(2) of the Code of Criminal Procedure. That proceedings under the section are in the nature of civil proceedings (See Jagir Kaur and Another Vs. Jaswant Singh, ) or quasi civil proceeding (as other precedent say) but are strictly speaking not civil proceedings as such, so as to attract the provisions of Code of Civil Procedure, relating to pleadings and proof is self-evident as they have to be tried under the Code of Criminal Procedure. Thus, proceedings u/s 125 are neither a criminal trial nor the trial of a civil suit. In my view, the strict observance of the principle of civil law with regard to pleadings would not be strictly applicable to these proceedings. Though it will be desirable that such a pleading, that the wife was unable to maintain herself should be forthcoming as also why was she unable to maintain herself the manner and status in which she would be maintained in her husband''s house, the absence of such pleading cannot for all intents and purposes be termed as fatal It would at best be an irregularity which would not vitiate the proceedings unless the omission stands pointed out by the husband at the earliest stage in the proceedings. In such a situation, the omission could be supplied by amendment of the petition by pleading the necessary facts. But if no such objection is take by the husband at the earliest stage of the proceedings, he cannot object to evidence of the wife being led to show her inability to maintain herself. The statement of the wife could adequately then be tested by him in cross-examination and countered by him in the production of his evidence in defence. In all situations, the Court of revision has only to satisfy whether a failure of justice has in fact been occasioned in the proceedings in the facts and circumstances of each case. But if the statement of the wife remains even silent as to the all important factor of her inability to maintain herself, then the Criminal Courts has no option but to dismiss her petition despite the husband having sufficient means neglecting or refusing to maintain his wife.

The objects and reasons for effecting change to the erstwhile law and to incorporate Section 125 in the new Code in the words of Judicial Committee''s Report were these:

In the case of wife, the order can be passed only if she is unable to maintain herself. Having regard to the object behind these provisions, which is mainly to prevent vagrancy, that is, in the Committee''s opinion, no need to compel the husband to pay maintenance to wife who is possessed of sufficient means.

Though the objects and means are not binding on the Court, yet they have relevance in discovering the intention of the legislature and the mischief which it sought to remove by making the change. Myriad questions crop up. Is the right of maintenance of the wife affected solely on her possession of sufficient means and not otherwise? Does it preclude the earning capacity or capability of the wife to be taken into consideration?Does the law put premium on indolence and deny treating work as worship? These quetions though raised would have to be answered in a bettter case, since, neither party to this case has sufficient means on which they can respectively bank upon, to sit idly and maintain themselves; more so the wile at the cost of the husband. Both are from the labouring classes. The wife would have to labour while living in her husband''s house and to help, if not eke out a living for herself. The Additional Sessions Judge, Ferozepore, has found that there was neither any pleading nor proof that the wife was unable to maintain herself or was in any way incapacitated or incapable of fending for herself. It is perhaps for this precise reason that the learned trial Magistrate, thinking that if maintenance in any case had to be granted to the wife when she was living away from her husband, gave her only a sum of Rs. 45/- per mensum as maintenance, Had that view been affirmed by the learned Additional Session Judge, I might have been persuaded to take the view as taken by H. N Kapoor J, of the Allahabad High Court in Abdul Salim''s case (supra). Since he has chosen to upset the order of the learned trial Magistrate, I am not prone to interfere in exercise of the inherent powers since T feel that there has not been any failure of justice; more so on another aspect.

The matrimonial Court found that the wife had withdrawn from the Society of the husband without any reasonable excuse. This judgment was contemplated while the trial Magistrate disposed of the maintenance petition. He put adequate safeguards to reopen the question of maintenance as is clear from the findings noted earlier. The petition for restitution of conjugal rights was first in time. The husband claimed the petition for maintenance to be a counterblast. The decree for restitution of conjugal rights could be appealed against in this Court. As per report of the registry, no such appeal has been filed, though a year has elapsed. The learned Counsel for the husband asserted that no such appeal has been filed and the learned Counsel for the wife could not refute it. Thus the said judgment is final inter partes.

In Atma Ram Sharma v. Manjit Rani and Anr. 1974 CLR 217 B.R. Tuli J. of this Court set aside an order of maintenance passed by the Judicial Magistrate in favour of the wife in the presence of an inter parts decree for restitution of conjugal rights u/s 9 of the Hindu Marriage Act when it was found that the defaulting wife had withdrawn from the society of the husband without any reasonable excuse. In that case, like the present one the husband had in time first filed a petition for restitution of conjugal rights and thereafter the wife had filed a petition for maintenance, The Magistrate passed a maintenance order earlier, but the petition for restitution of conjugal rights was decreed later, as too is the present case in hand. This precedent was pressed into service by the learned Counsel for the Respondent and rightly so. On the other hand the learned Counsel for the Petitioner relied on Fakruddin Shamsuddin Saiyed Vs. Bai Jenab, and Shiela Rani Vs. Durga Pershad, (rendered by Sharmher Bahadur J.) to contend that it was for the husband to approach the criminal Court to seek modification of a maintenance order on the decree for restitution of conjugal rights to have come into being. It was contended that the existence of such a decree could not put an end to the recognised right of maintenance granted by a criminal Court in proceedings u/s 488 of the Code of Criminal Procedure (old) and whether the Magistrate would cancel or vary the order of maintenance would depend in the way in which he would exercise his discretion. These precedents are of no avail to the Petitioner as there is no subsisting order of maintenance in her favour. Rather, the subsisting decree for restitution of conjugal rights passed against her negatives the plea of the Petitioner that the husband neglects or refuses to mainan her, or that his condition of her living with him, so as to be maintained, was validly countered by her on causes and grounds of her refusal to live with him, as opined Despite the substantial changes effected on the subject, Hindu marriage still in remains a secrament and the husband is entitled to require his wife to be his house from the moment of the marriage. Thus, in the circumstances, the wife could not refuse to live with her husband and claim to be maintained at a place other than under his roof.

Lastly, it was pointed out that the Legislature has now chosen to grant in the same session maintenance even to a divorced wife, subject of course on her inability to maintain herself. And on that parity, it was sought to be argued that a (sic), however, defaulting, was entitled to maintenance from the husband on the basis of her status as such, present or past. The argument loses colour the moment the premises for it is tested. Whereas the divorced wife is under no obligation to live under the roof of the husban dand correspondingly the husband cannot insist on her to remaining under his roof, the claim of maintenance of the subsisting wife against the husband at a place away from under his roof has to put forth grounds, the truthfulness of which would have to be established to the satisfaction of the Court as also the truthfulness of the offer of the husband to maintain her under his roof. It is for the preservation of the institution of marriage that such an inquiry is contemplated in the second proviso forthcoming in in Section 125(3) of the Code of Criminal Procedure. Perhaps the Legislature conceived that an innocent husband willing to fulfil his obligations is not harassed by a prude and may be refusal of maintenance in such a case could mend a marriage, otherwise in doldrums.

For the views expressed above and the reasons indicated therein, no interference is required to be made. Consequantly this petition fails and is hereby dismissed.