Smt. Munni Devi vs Om Pal

J.M.L. Sinha, J.—Smt. Munni Devi, hereinafter called the applicant, filed an application u/s 125 of the Code of Criminal Procedure 1973 claiming maintenance against her husband Om Pal, opposite party. The Munsif-Magistrate, Etah, who tried the case, vide his order dated 8th October, 1976, allowed the application and directed the opposite party to pay maintenance to the applicant at the rate of Rs. 75/- per mensem with effect from 1st April, 1975. Aggrieved against it Om Pal opposite party filed a revision in the court of Sessions. The learned III Addl. Sessions Judge, Etah, who heard the revision, allowed the revision and dismissed the application u/s 125 of the Code of Criminal Procedure because the applicant did not lead evidence to prove that she was unable to maintain herself. Dissatisfied with the order passed by the learned III Addl. Sessions Judge, Smt. Munni Devi filed the present revision.

When the revision came up before a learned single Judge of this Court, it was reiterated on behalf of the opposite party that, in view of the decisions of this Court in case Manmohan Singh Vs. Smt. Mahindra Kaur, , the applicant could not be granted any maintenance because it was not proved by her that she was unable to maintain herself. The learned single Judge found it difficult to agree with the view expressed in the aforesaid decision and, accordingly, directed that this case may be listed before a larger Bench. It is thus that the present revision has come up before us.

Before addressing ourselves on the legal question we may first examine the factual position of the case.

The application u/s 125 Code of Criminal Procedure was filed by the applicant on 21st May, 1974. It was, inter alia, stated in the application that the applicant was unable to maintain herself and that her father was a poor man and hence he too could not bear her burden. A plea had thus been raised in the application that the applicant was unable to maintain herself. The learned Munsif-Magistrate, before whom the application was filed, examined the applicant on oath before issuing notice to the opposite party. In that statement, too, the applicant stated that she was unable to maintain herself and further that the opposite party had remarried with one Smt. Shakuntala. On his appearance in the trial court, the opposite party filed a written statement. The plea raised by the applicant that she was unable to maintain herself, was not controverted in the written statement filed by the opposite party. The only objection raised in the written statement was that, even though the marriage of the opposite party was settled with the applicant, it was never celebrated and hence the applicant could not claim maintenance from him. The applicant led evidence to prove her marriage with the opposite party and the fact that the opposite party had remarried himself with one Shakuntala. The opposite party led evidence to prove that no marriage had taken place between him and the applicant. The fact that the marriage had taken place between him and Smt. Shakuntala was admitted by Om Pal opposite party. The trial court recorded a finding to the effect that the applicant was a lawfully married wife of the opposite party. This finding was neither assailed in the lower court of revision nor was it disturbed. In fact that finding was not even assailed before us in the present revision.

The precise question that arises in the context of the aforesaid facts is whether the applicant''s claim for maintenance could be refused on the ground that she did not lead evidence in proof of the fact that she was unable to maintain herself, even though she had raised a plea to that effect in the application which was not controverted at any stage by the opposite party.

The relevant part of Section 125 of Code of Criminal Procedure reads as follows:

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A reading of the aforesaid provision would show that the condition precedent for making an application u/s 125 of the Code of Criminal Procedure is that the wife is unable to maintain herself. In other words, it is a qualifying condition that makes a wife competent to claim maintenance. Once that qualifying condition is satisfied, she can claim maintenance, but in order to succeed in her claim she must prove that the husband neglected or refused to maintain her. Even in a case where husband absents himself and does not contest, it is necessary for the wife to furnish proof of that fact. The legislature made it explicit by incorporating the words "upon proof of such neglect or refusal" immediately after Clause (d) in Sub-section (1) of Section 125, Code of Criminal Procedure. It is, however, not necessary for the wife to furnish proof of the fact that she is unable to maintain herself, if she has raised a plea to that effect in the application and that the plea is not controverted by the husband in his written statement. Proceedings u/s 125 Code of Criminal Procedure (which corresponds with Section 488 of the Code of Criminal Procedure 1898) are in fact not proceedings of criminal nature. Provision for maintenance has been incorporated in the Code of Criminal Procedure only to provide a speedy remedy to a wife whose husband neglects or refuses to maintain her without sufficient cause. The procedure for trial of case u/s 125 Code of Criminal Procedure is given in Section 126 Code of Criminal Procedure and a perusal thereof would show that it provided for ex parte proceedings and for setting aside of ex parte order on payment of costs. It also provides for award of costs. That also shows that the proceedings u/s 125 Code of Criminal Procedure are not criminal proceedings but are proceedings partaking more of civil nature. In the case Mehar Khan v. Barakat Singh AIR 1929 Lah 32 it was observed:

A consideration of the three sections mentioned above clearly shows that the proceedings u/s 488 Code of Criminal Procedure are not strictly speaking criminal proceedings except in the sense that they are taken under the provisions of the Code of Criminal Procedure. They are, if I may use that term, quasi criminal proceedings partaking more of civil than of criminal character as they are intended to enforce a civil liability of the husband or the father.

(Emphasis supplied)

In case of Maung Ba Tun v. MaKyway, AIR 1939 Rangoon 151 it was observed:

The word "ex parte is not defined in the Code of Criminal Procedure but the proceedings instituted u/s 488 of the said Code are of a quasi civil nature. Therefore, the word "ex parte", used in the aforesaid section is used in the same sense as is used in Ors. 9 and 17, Code of CPC .

In case of Ma-Saw May v. U. Aung Thein AIR 1935 Ran 277 it was observed:

The provisions in the Code of Criminal Procedure in regard to applications for maintenance stand by themselves. In fact, they might properly form part of a separate Act.

Since the proceedings u/s 125 Code of Criminal Procedure are not criminal proceedings but are proceedings partaking more of civil nature, the normal rule that applies to a criminal case, namely that the burden to prove the relevant allegation always rests on the prosecution/complainant, should not apply of those proceedings. If a plea is raised by the wife in her application that she is unable to maintain herself and the husband does not controvert that plea in the written statement filed by him, it would be deemed that the husband does not deny the fact that the wife is unable to maintain herself. In such a case it is not necessary for the wife to adduce proof of the fact that she is unable to maintain herself. If the legislature had intended that the wife should furnish proof of the fact that she is unable to maintain herself, whether or not that fact is denied by the husband, it would have made its intention explicit by using the relevant words just as it did regarding the requirement to furnish proof of the fact that the husband neglected or refused to maintain her.

There may be a case in which the husband does not controvert in the written statement the plea raised by the wife in her application about her inability to maintain herself but the husband controverts that position by leading evidence to that effect. The court may not refuse to admit such evidence but in such a case the wife will be entitled to adduce evidence in rebuttal about her inability to maintain herself.

In the present case, as already stated earlier, the applicant expressly pleaded in her application that she was unable to maintain herself. Presentation of the application, presumably, in order to examine whether the preliminary condition for making the application viz. that the applicant was unable to maintain herself, was satisfied. In that statement too she said that she was unable to maintain herself. Yet the opposite party did not controvert that plea when he filed the written statement. In fact no cross-examination in that connection was made with the applicant or her witnesses, nor did the opposite party himself lead any evidence in order to show that the applicant was able to maintain herself. In this context the claim of the applicant for maintenance could not be refused merely because she did not furnish proof of the fact, after the appearance of the opposite party in the case, that she was unable to maintain herself.

As for the decisions of this Court in case Manmohan Singh Vs. Smt. Mahindra Kaur, , which has been relied upon by the court below, it is apparent on a perusal thereof that in that case no plea was raised by the wife in the application that she was unable to maintain herself, nor did she adduce evidence about it at any stage. It was for that reason that this Court held that the wife was not entitled to maintenance. In the instant case, as already mentioned earlier, there is a plea to that effect in the application. The rule laid down in the case of Man Mohan Singh v. Mohinder Kaur (supra) could not, therefore, apply to the present case.

This revision is accordingly allowed. The order dated 16th July, 1977, passed by the III Addl. Sessions Judge, Etah is set aside and the order dated 8th October, 1976 passed by the Munsif-Magistrate is restored.