Smt. Tejaswini vs Aravinda Tejas Chandra Gowda

V. Jagannathan, J.—Whether the expression ''unable to maintain herself contained in Section 125(1)(a) of the Cr.P.C. can be equated to the

expression ''capable of earning'' and therefore, in a case where the wife is a holder of a post-graduation degree cannot be said that she is capable

of earning and as such, she is not entitled for maintenance. This question has cropped up for an answer in this revision petition filed u/s 19(4) of the

Family Courts Act, by the wife calling in question the dismissal of her petition for maintenance, by the trial Court.

The facts are not in dispute in as much as the petitioner was married to respondent on 17.3.2005 and thereafterwards, petitioner was not

looked after by her husband as was expected of her husband and it is the case of the petitioner that she was left in her parents'' house by her

husband and he did not take her to his house and finally the petitioner had to issue a legal notice and though she expressed her willingness to join

her husband, the respondent refused to take her and even refused to take her before the conciliation proceedings. Putting all these facts before the

trial Court in her petition u/s 125 Cr.P.C., the wife sought maintenance at Rs. 7,000/- per month on the footing that her husband is a lecturer

earning Rs. 20,000/- per month and also owns a house.

The respondent-husband denied all the allegations made by the wife against him and it was his case that the behaviour of the petitioner was not

normal and she herself refused to join the respondent. It is also his case that the petitioner was working as an officer in SBI credit card, earning Rs.

6,000/- per month, gave up her job before filing the maintenance petition and it is his further case that his wife being a MBA graduate and also

pursuing higher education in Marketing Management, is capable of earning more than Rs. 20,000/- per month and deliberately she is not going for

work and therefore, the maintenance petition be dismissed.

The learned Judge of the Family Court after considering the case of the parties and raising relevant points for consideration and on an

appreciation of the evidence placed by the parties, ultimately took the view that the element of ''unable to maintain herself is very much absent in

the instant case and therefore, her petition for maintenance deserves to be dismissed and accordingly, the trial Court dismissed the maintenance

petition driving the wife to this Court.

The learned Counsel for the petitioner argued that the entire approach of the trial Court was erroneous and the learned Judge did not properly

construed the expression ''unable to maintain herself and merely because the petitioner has the potential to earn, that itself cannot be taken as a

circumstance to hold that the petitioner is able to maintain herself. The trial Court further erred in observing that being an MBA graduate and

capable of earning Rs. 5,000/- peer month as deposed to by the petitioner in her evidence, and the inference that said evidence therefore takes the

case out of the purview of Section 123(1)(a), cannot be sustained in law. Apart from this, the further submission made is that the learned Judge of

the trial Court was also wrong in making an observation touching upon the human relation aspects and the said observation at para 14 of the

impugned order is also uncalled for.

In support of his submission concerning interpretation of expression ''unable to maintain herself, learned Counsel for the petitioner placed

reliance on the decision of the Bombay High Court in the case of Vimal v. Sukumar CDJ 1980 BHC 118 to contend that the expression ''unable to

maintain'' only connotes that wife has no other means or source to maintain herself and it had nothing to do with her potential earning capacity.

Learned Counsel also referred to para 15 of the said judgment to drive home the above point.

Another decision referred to by him is the one reported in AIR 1989 SC 2374 and referring to said decision it is contended that while

considering the petition u/s 125 of the Cr.P.C., the court must not lose sight of Section 18 of the Hindu Adoption and Maintenance Act. Therefore,

the learned Counsel argued that the impugned order of the trial Court is liable to be set-aside and the maintenance petition needs to be allowed.

On the other hand, learned Senior Counsel Shri Rajendra Prasad for the respondent husband supported the judgment of the trial Court with all

force and submitted that the trial court was not in error in holding that the petitioner was capable of earning as she is an MBA graduate and

therefore, it is not a case which can be brought within the expression ''unable to maintain herself. The submission made is that once it is shown from

the material on record that wife is capable of earning even according to her own say, that itself is sufficient to hold that it is not a case that comes

within the four corners of Section 125(1)(a) of the Cr.P.C. The further submission made is that hardly within two months from the date of

marriage, the petitioner left the marital house and filed the petition for maintenance, though she is capable of earning a handsome salary by virtue of

her qualification and more over it is a case of such a nature that the wife though capable of maintaining herself does not want to maintain herself and

she is not prepared to maintain herself despite possessing an MBA degree. Under these circumstances, the view taken by the trial Court is just and

proper and is in accordance with the provisions of the Cr.P.C. The decisions referred to by the learned Senior Counsel for the petitioner are also

not applicable to the case as the facts and circumstances are quite different. Therefore, learned Senior Counsel prayed for dismissal of the revision

petition.

Having thus heard both sides, I now proceed to answer the question that was raised in a very beginning of this order and the said answer would

also furnish answer to the merits of this case as well

Section 125(1)(a) of the Cr.P.C. reads as under:

Order for maintenance of wives, children and parents- (1) If any person having sufficient means neglects or refuses to maintain:

(a) his wife, unable to maintain herself, or....

The fate of this petition rests mainly on the interpretation of the expression ''unable to maintain herself. A plain reading of the expression

keeping in view the meaning assigned to every word that appears in the said expression cannot lead any one to read such expression as to mean

''capable of earning''. In other words, the expression puts the emphasis on the wife being unable to maintain herself and the emphasis is not on the

capacity of wife to earn for herself. As such, the potential earning of the wife is not in contemplation in the expression that is found in Section

125(1)(a) of the Cr.P.C. As rightly argued by the learned Counsel for the petitioner, if the expression ''unable to maintain herself is to be

interpreted as to mean ''capable of earning'' then the vary purpose of introducing Section 125 of the Cr.P.C. will be rendered redundant This is

because it is always possible to say in a given case where the wile seeks maintenance, that she has the potential to earn some thing or that she is

capable of earning for herself and if that interpretation is accepted, then it may be possible to reject almost every petition that is filed u/s 125 of the

Cr.P.C. and this is not the intention of the legislation.

As far as the decisions throwing light on the aforementioned expression appearing in 125(1)(a) are concerned, in the case reported in Major

Ashok Kumar Singh Vs. VIth Additional Sessions Judge and Others, , a learned Single Judge of the Allahabad High Court had the occasion to

consider the case of a wife who happens to be an educated lady but unemployed and observed that the contention that the wife is an educated

lady and can always get employment and can support herself cannot be accepted because it is not disputed that wife is not employed anywhere

and has no other means to maintain herself and merely for the fact that a women is educated, she cannot be deprived of her right to get

maintenance u/s 125 of the Code of Criminal Procedure.

The Apex Court in the case of Rajathi Vs. C. Ganesan, has held that the statement of the wife that she is unable to maintain herself would he

enough and it would be for the husband to prove otherwise and further the court went on to observe that it would also be proper to consider

petition u/s 125 of the Cr.P.C. keeping in view the provisions of Section 19 of the Hindu Adoption and Maintenance Act, 1956, which provides

for the maintenance of Hindu wife by her husband during her life time.

In the decision referred to by the learned Counsel for the petitioner in the case of Vimal W/o Sukumar Patil v. Sukumar Anna Patil and Anr.,

the learned Single Judge of the Bombay High Court dealing with the expression ''unable to maintain herself as appearing in Section 125(1)(a) has

observed that though the expression is used by the legislature in the negative form, it only connotes that the wife has no other means or source to

maintain herself and it has nothing to do with her potential earning capacity. The Court also observed that if the expression is converted into

positive form so as to mean ''she is otherwise able to maintain herself then the whole provision will become unworkable and result in defeating the

very object of the legislature and further it will involve an endless enquiry about her physical ability, capacity and opportunities available to her for

earning her livelihood and this never was the intention of the legislature.

The Bombay High Court in the aforementioned case further went on to observe that the question as to whether wife is unable to maintain

herself will have to be decided having regard to the facts and circumstances of each case and no general rule can be laid down in this behalf nor it

is advisable to lay down any general rule.

As far as the contention urged by the learned Senior Counsel Shri Rajendra Prasad for the respondent that Court cannot rewrite the law and it

can only interpret the law kid down by the legislature is concerned, there can be no two opinions in this regard and the power to legislate in with

the legislature and courts will have to interpret the law and nothing more than that and further Court cannot add or substitute any word into the

statute which was not done by the legislature itself.

Keeping in view the aforesaid principle of interpretation of statute, in the instant case, as already observed by me earlier, a plain reading of the

expression Humble to maintain herself cannot lead to the meaning ''capable of earning for herself Therefore, what is not contemplated by the

legislature cannot be read into it by the Court. The expression which is under discussion doe not take into account the potential earning capacity of

the wife but all that it says is that if the wife is unable to maintain herself and if she satisfies other requirements of the section namely a person having

sufficient means neglects or refuses to maintain his wife, the petition by the wife for maintenance cannot be rejected merely on the footing that a

wife is capable of earning for herself.

This conclusion is also based on the reasoning that though the wife is a highly educated person in a given case and she does not choose to go

for work but wants to sacrifice her entire life for the well-being of the family even at the cost of a lucrative job, it cannot be said that in such a case,

the wife will not be entitled to maintainance if her husband neglects or refuses to maintain her. As rightly pointed out by the learned Counsel for the

petitioner, despite holding a higher educational qualifications, it is not incumbent on the part of the wife to go for a job particularly when she is

prepared to sacrifice a prospective career for the sake of her family''.

For the above said reasons, the learned Judge of the Family Court was totally in error in dismissing the maintenance petition filed by the wife and,

therefore, the matter requires remand to the family Court to work out the amount of maintenance to be paid to the wile based on the evidence

appreciation and hence I peas the following order:

ORDER

The revision petition is allowed and the impugned order of the trial Court is set-aside and the matter stands remitted to the trial Court to consider

the amount of maintenance to be granted to the wife based on the evidence let in by the parties and it is also open to the parties to place further

material and in the case of respondent-husband, it is also open to him to place evidence to show that the wife is employed. The trial Court shall

also take into account all these factors and dispose of the matter within a period of three months from the date of receipt of a copy of this order

and both parties are directed to appear before the trial court on 1.6.2009.

One last observation to be made is with regard to opinion expressed by the learned trial judge at para-14 of the impugned order. The court, when

called upon to decide a petition u/s 125 of the Cr.P.C. cannot go beyond the scope of the said petition and any observation which of such a nature

touching upon the conduct of the parties and which is not a germane to resolve the issue before the Court, therefore will have to be avoided.