Author Archives: vinayak

About vinayak

Father of a lovely daughter, criminal in the eyes of a wife, son of an elderly mother, old timer who hasn't given up, Male, activist

Every Dowry complaint NOT criminal. Madras HC refuses FIR / investigation in THIS case ; matri dispute so go to civil court !!

Excerpts : "…..From these allegations, what is made out is a matrimonial dispute which can be resolved only by the Civil Court and the said complaint does not warrant any investigation……" – Madras HC
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SPECIAL thanks to @ facebook user, thiru kavariman_rasa for this order

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 27.10.2014
CORAM : THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Crl.OP No.28798 of 2014

Mukaambikai .. Petitioner
Vs
State by
The Inspector of Police,
All Women Police Station,
Sankari, Salem District. .. Respondent

Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., to direct the respondent police to register the FIR based on the petitioner’s complaint dated 14.07.2014.

For Petitioner :Mr.S.Lakshmanasamy
For Respondents :Mr.M.Maharaja, Additional Public Prosecutor
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

ORDER

Seeking a direction to the respondent police to register the FIR based on the petitioner’s complaint dated 14.07.2014, the petitioner has come up with this petition.

2.I have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the respondent and I have also perused the records carefully.

3.A perusal of the complaint would go to show that the marriage between the petitioner and her husband was celebrated on 14.06.2010. Now, after 4 years, the present complaint is made by the petitioner alleging that she has been harassed by her husband by demanding dowry.

4.From these allegations, what is made out is a matrimonial dispute which can be resolved only by the Civil Court and the said complaint does not warrant any investigation. Therefore, the Criminal Original Petition is dismissed however, with liberty to the petitioner to work out her remedies in the manner known to law.

27.10.2014

To

1.The Inspector of Police,
All Women Police Station,
Sankari, Salem District.

2.The Public Prosecutor,
High Court, Madras.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Women do NO harm! FEMALE teacher bangs student’s head on wall, kid dies. Villagers Parents agitate

Women are angels and will do NO harm goes the conventional logic. Most laws are made to control the barbaric men !!

Here’s a FEMALE teacher who beat a student badly and banged his head on wall. The kid died within a couple of days !!

I leave it to you to decide

employed wife with sufficient means gets NO maintenance sec 24 HMA. Madras HC. Hon. P Sathasivam

An employed wife with sufficient means (income ) gets NO maintenance under sec 24 HMA. Decree by Hon. Justice P Sathasivam Madras HC.

"….for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per Section 24 of the Act. …."

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Madras High Court

Manokaran @ Ramamoorthy vs M. Devaki on 21 February, 2003

Equivalent citations: AIR 2003 Mad 212, I (2003) DMC 799, (2003) 1 MLJ 752

Author: P Sathasivam

Bench: P Sathasivam

ORDER P. Sathasivam, J.

1. Aggrieved by the order of the Principal Family Court, Madras dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000, granting interim maintenance at the rate of Rs.750/- per month and litigation expenses of Rs.1,500/-, the husband has preferred the above Revision under Article 227 of the Constitution.

2. The petitioner/husband has preferred the said O.P. for divorce under Section 13(1)(1a) and (1b) of the Hindu Marriage Act. Pending the said petition, the wife/respondent herein has filed I.A. No. 1058/2001 claiming interim maintenance at the rate of Rs.2,000/- per month and Rs.5,000/- towards litigation expenses under Section 24 of the Hindu Marriage Act. The said application was resisted by the husband stating that she is working in a private concern and drawing a salary of Rs.4,500/- per month. It is also stated that he is earning only Rs.2000/- per month. Before the Family Court, salary certificate of the husband dated 10-6-2002 has been marked as Ex.R-1. Based on Ex.R-1, after finding that he is earning Rs.70/- per day by working in Senthil Auto Garage, the Family Court has concluded that the wife is entitled to interim maintenance at the rate of Rs.750/- per month from the date of petition till the disposal of O.P. and also awarded Rs.1,500/- towards litigation expenses.

3. The only question to be considered in this Revision is whether the wife/respondent herein has made out a case for interim maintenance in terms of Section 24 of the Hindu Marriage Act. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. Mr. N. Manokaran, learned counsel for the petitioner, after drawing my attention to Section 24 of the said Act and the admission of the wife in the counter statement filed in the main petition viz., O.P. No. 1310/2000, would contend that since she is earning sizeable income and in view of the fact that the petitioner/husband is getting only Rs.2000/- per month, the Family Court has committed an error in granting interim maintenance and litigation expenses.

5. There is no dispute that the petition has been filed by the respondent/wife claiming maintenance pendente lite and expenses of the proceedings under Section 24 of the Hindu Marriage Act. Section 24 reads thus:

"24. Maintenance pendente lite and expenses of proceedings.- Where in any proceedings under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable."

The above provision would show that for grant of maintenance pendente lite, the party should not have sufficient independent income for her/his support. In other words, if it is found that the applicant has found sufficient income for his/her support, no amount can be allowed as maintenance pendente lite as per Section 24 of the Act.

While construing the very same provision in similar circumstance, A.S. Venkatachamoorthy, J., in KUMARESAN v. ASWATHI [(2002) 2 M.L.J. 760 has arrived a similar conclusion.

Now I shall consider whether the respondent/wife has any independent income which is sufficient for her survival and for the proceedings. In para 10 of the counter statement filed by the wife in O.P. No. 1310/2000, she herself admitted that, …..Now the respondent (wife) had got her present job in private body and running her life with the salary and staying with her brother…".

The above statement shows that she is employed in a private concern, getting salary and staying with her brother. In the application for interim maintenance, the husband has filed a counter affidavit wherein he has specifically stated that his wife is drawing a salary of Rs.4,500/- from a private concern. In para 5 of the counter affidavit it is stated that, "5. The respondent denies all the allegations in para 5 and put the petitioner strict proof of the same. The averment about I am liberally suffering without financial assistants is put to strict proof since this petitioner is working in the organization Kumari Neruvanam at No. 40, Venkat Narayanan Road, T. Nagar, Chennai 600 017, and drawing a salary of Rs.4500/- she also disclosed this before the All Women Police Station, Thousand Lights, and this petitioner also admitted in her counter statement that she is working in private and running her life. But contradictory to her statement in counter statement now this petitioner come forward with a plea that she is without financial assistance. This petitioner is working as typist and main organizer for a programme in Neingalum Pachalar Agalam a programme telecaste in RAJ TV during Sunday 8.00 A.M, from her company Kumari Neruvanam. The averment about that this respondent is owner of the "Venkataswari Turning Works" at Muthumariamman Koil Street, Anna Nagar, Chennai-600 040 is put to strict proof since this respondent is not the owner of the said company and A. Loganathan is the owner of the said Turning works and this respondent is working in Senthil Auto Garage at Annai Sathya Nagar, Anna Nagar (East) Chennai-600 102, and drawing a salary of Rs.2000/- and this respondent need not to give any monetary assistance to the petitioner for her claim."

The above averment shows that the petitioner herein/husband is working in Senthil Auto Garage, Annai Sathya Nagar, Chennai-102 and drawing a salary of Rs.2000/- per month. Likewise, it is also seen that the respondent herein/wife is working in Raj T.V and drawing a salary of Rs.4,500/-. Though the said aspect has not been substantiated, I have already referred to the admission of the respondent herein in her counter statement filed in the main O.P.1310/2000 wherein she admitted that she secured a private job and is getting salary and staying with her brother. On the other hand, it is established particularly from Ex. R-1, the petitioner herein is getting only Rs.70/- per day or Rs.2000/- per month by working in Senthil Auto Garage. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. In the light of the materials available, particularly the admitted case of the respondent/wife, she is employed in a private Satelite T.V. and earning for her livelihood staying with her brother, it cannot be construed that she is not having sufficient independent income. The Family Court lost its sight to consider the above material aspect. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. In the light of what is stated above, the impugned order of the Principal Family Court dated 25-7-2002, made in I.A. No. 1058/2001 in O.P. No. 1310/2000 is set aside and the Civil Revision Petition is allowed. No costs. It is made clear that pending the divorce proceedings at any point of time if the applicant/wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite. Consequently, C.M.P. No. 16264/2002 is closed.

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pdf versuon uploaded here : http://1drv.ms/1EbN6Ad

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FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

qualified wife fighting divorce not permitted sit idle & put burden on husband demanding pendente lite during pendency of petition

Well qualified spouse can’t sit at home unemployed and saddle adversary with maintenance burden !! Law is not to help such idles !!

Hon Madhya Pradesh HC
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* "……….A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente life alimony.
The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M. Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? ………."
* "……….The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That can not he treated to he aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours………."


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Madhya Pradesh High Court

Smt. Mamta Jaiswal vs Rajesh Jaiswal on 24 March, 2000

Equivalent citations: 2000 (4) MPHT 457

Author: J Chitre

Bench: J Chitre

ORDER J.G. Chitre, J.

1. Heard.

The petitioner Mamta Jaiswal has acquired qualification as M.Sc., M.C., M.Ed. and was working in Gulamnabi Azad College of Education, Pusad, Dist. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pithampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5852/-. The matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony Rs. 400/- per month has been awarded to their daughter Ku. Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1500/-. The matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever she attends Court for hearing of the matrimonial petition pending between them. Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending matrimonial Court.

2. Shri S.K. Nigam, pointed out that the petition is mixed natured because if at all it is touching provisions of Section 26 of Hindu Marriage Act, 1955 (hereinafter referred to as Act for convenience) then that has to be filed within a month. Shri Mev clarified that it is a revision petition mainly meant for challenging pendente lite alimony payable by the husband in view of Section 24 of the Act. He pointed out the calculations of days in obtaining the certified copies of the impugned order. In view of that, it is hereby declared that this revision petition is within limitation, entertainable, keeping in view the spirit of the Act and Section 24 of it.

3. A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. The present petitioner, the wife, Mamta Jaiswal has made a prayer that she should be paid travelling expenses of one adult member of her family who would be coming to matrimonial Court at Indore as her attendant. Therefore, the question arises firstly, whether a woman having such qualifications and once upon a time sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. Secondly, whether such a woman is entitled to get the expenses reimbursed from her husband if she brings one adult attendant alongwith her for attending the matrimonial Court from the place where she resides or a distant place. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. In the present case there has been debate between the spouses about their respective income. The husband Rajesh has averred that Mamta is still serving and earning a salary which is sufficient enough to allow her to support herself. Wife Mamta is contending that she is not in service presently. Wife Mamta is contending that Rajesh, the husband is having salary of Rs. 5852/- per month. Husband Rajesh is contending that Rs. 2067/- out his salary, are deducted towards instalment of repayment of house loan. He has contended that Rs. 1000/- are spent in his to and fro transport from Indore to Pithampur. He has also detailed by contending that Rs. 200/- are being spent for the medicines for his ailing father. And, lastly, he has contended that by taking into consideration these deductions a meagre amount remains avialable for his expenditure.

5. It has been submitted that Mamta Jaiswal was getting Rs. 2000/- as salary in the year 1994 and she has been removed from the job of lecturer. No further details are available at this stage. Thus, the point is in an arena of counter allegations of these fighting spouses who are eager to peck each other.

6. In view of this, the question arises as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? Whether such spouse should be permitted to get pendente life alimony at higher rate from other spouse in such condition ? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M. Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient congent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, can not be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice-versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, atleast, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversory who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That can not he treated to he aim, goal of Section 24. It is indirectly against healthyness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient efforts arc unable to support and maintain themselves and arc required to fight out the litigation jeopardising their hard earned income by toiling working hours.

7. In the present case, wife Mamta Jaiswal, has been awarded Rs. 800/-per month as pendente lite alimony and has been awarded the relief of being reimbursed from husband whenever she makes a trip to Indore from Pusad, Dist. Yeotmal for attending matrimonial Court for date of hearing. She is well qualified woman once upon time obviously serving as lecturer in Education College. How she can be equated with a gullible woman of village ? Needless to point out that a woman who is educated herself with Master’s Degree in Science, Masters Degree in Education, would not feel herself alone in travelling from Pusad to Indore, when atleast a bus service is available as mode of transport. The submission made on behalf of Mamta, the wife, is not palatable and digestable. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. The spouses who are quarrelling and coming to the Court in respect of matrimonial disputes, have to be guided for the purpose of amicable settlement as early as possible and, therefore, grant of luxurious, excessive facilities by way of pendente lite alimony and extra expenditure has to be discouraged. Even then, if the spouses do not think of amicable settlement, the matrimonial Courts should dispose of the matrimonial petitions as early as possible. The matrimonial Courts have to keep it in mind that the quarrels between the spouses create dangerous impact on minds of their offsprings of such wedlocks. The offsprings do not understand as to where they should see ? towards father or towards mother ? By seeing them both fighting, making allegations against each other, they get bewildered. Such bewilderedness and loss of affection of parents is likely to create a trauma on their minds and brains. This frustration amongst children of tender ages is likely to create complications which would ruin their future. They can not be exposed to such danger on account of such fighting parents.

9. In the present case the husband has not challenged the order. Therefore, no variation or modification in it is necessary though this revision petition stands dismissed. The matrimonial Court is hereby directed to decide the matrimonial petition which is pending amongst these two spouses as early as possible. The matrimonial Court is directed to submit monthwise report about the progress of the said matrimonial petition to this Court so as to secure a continuous, unobstructed progress of matrimonial petition. No order as to costs. The amount of pendente lite alimony payable to Mamta Jaiswal by husband Rajesh Jaiswal should be deposited by him within a month by counting the date from the date of order. The failure on this aspect would result in dismissal of his matrimonial petition. He should continue payment of Rs. 400/-pcr month to his daughter Ku. Diksha Jaiswal right from the date of presentation of application of her maintenance i.e., 14-5-98. That has to be also deposited within a month. He may take out sufficient money for that from his savings or take a loan from some good concern or loan granting agencies. Failure in this aspect also would result in dismissal of his petition.

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PDF version uploaded here : http://1drv.ms/1x9DlUr

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FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

common knowledge that husbands, after filing divorce & directed to pay maintenance claim unemployed !! so claiming un employed will NOT help !!

Courts do NOT believe that husband is un employed because its common knowledge that the husbands, after filing for divorce, when directed to pay maintenance, claim that they are unemployed!!!

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excerpts
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* Husband was employed prior to filing of divorce

* Husband supposedly earning 12000 + 30% as HRA so in all 15600

* Wife and kid granted 6000 as monthly maint

* Husband goes on appeal
* the Hon court says and we quote "…………..It is the common knowledge that the husbands, after filing the petition for grant of divorce, when they are put to terms and directed to pay maintenance to their wife in pursuance to their statutory obligation under Section 24 of the Hindu Marriage Act, they claim that they are unemployed. In the instant case also, it is the admitted case of the petitioner that at the time when he filed the petition for grant of divorce on the basis of cruelty and desertion, he was earning `12,000/- per month plus 30 per cent HRA. In addition to this, he must have been getting some other benefits like dearness allowance, travelling allowance, etc., which fact has not been disclosed. All these facts clearly show that he is capable of earning at least approximately `15,000/- to `20,000/- per month. …….."

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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* HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P. NO.116 OF 2011 & C.M. NOS.15906 OF 2011, 15907 OF 2011

Decided on : 13th February, 2013

RAJA BABU SINGH …… Petitioner

Through: Mr. Tarannum Ansari, Advocate.

Versus

VANDANA TOMAR SINGH …… Respondent

Through: None.

CORAM: HON’BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a Civil Revision Petition filed by the petitioner under Section 115 CPC against the order dated 15.2.2011 passed by Ms. Reena Singh Nag, the learned Additional District Judge-2, North East, Karkardooma Courts directing the petitioner to pay a sum of `6,000/- per month by way of ad interim maintenance to the respondent and her minor child. In addition to this, the petitioner has also been directed to pay a sum of `10,000/- towards the litigation expenses.

2. I have heard the learned counsel for the petitioner. The main contention of the learned counsel is that a sum of `6,000/- which has been fixed by the learned trial court is highly excessive keeping in view the fact that the petitioner is not earning anything and only a notional income of `15,000/- has been considered as his income. It has been stated that the petitioner also has a widowed mother to be maintained apart from supporting his own self and, therefore, in such a contingency, directing the petitioner to pay a sum of `6,000/- per month to the respondent is highly excessive.

3. I have carefully considered the submissions and have gone through the record. The petitioner had filed a petition for divorce on the ground of cruelty and desertion. During the pendency of the said petition, the respondent filed an application seeking a sum of `10,000/- for herself and a sum of `5,000/- for her minor child by way of ad interim maintenance apart from the litigation expenses of `11,000/-. The respondent took the plea that the petitioner is earning `40,000/- per month whereas the respondent does not have any independent source of income nor does she own any movable or immovable property in her name. The petitioner filed reply to the said application and stated that at the time of filing of the application, he was unemployed and had no independent source of income prior to this. He had admitted that he was employed as Junior Research Fellow in the Institute of Pesticide Formulation Technology in Gurgaon and was getting a salary of `12,000/- per month apart from 30 per cent of HRA. He had further alleged that so far as the respondent is concerned, she had done B.Ed. and was allegedly working as a teacher in a play school run by her father. In this regard, no documentary evidence was placed by the petitioner before the trial court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. After hearing the learned counsel for the parties and taking into consideration the fact that the parties are having a minor child of three years and the fact that the respondent/wife was not having any independent source of income, the trial court assumed that even though the petitioner may be unemployed but he had the capacity to earn `15,000/- per month as he had admitted to have earned the same before filing of the application. Therefore, a sum of `15,000/- per month was taken to be as the notional income of the petitioner and the court fixed a sum of `6,000/- per month as ad interim maintenance keeping in view the fact that the petitioner had to maintain his widowed mother also apart from his own self. The reasoning given in this regard by the trial court is as under :-

"……..It is not disputed that non-applicant is M.Sc. He has placed on record a letter from Institute of Pesticide Formulation Technology dated 28.05.08 wherein he has been offered the placement of Jr. Research Fellow. Then there is another letter dated 31.03.10 which mentions that non-applicant had worked on the project titled „Development of Environment and User Friendly Natural Product Based Formulation for Household Purposes? awarded by Department of Chemicals and Petrochemicals, Ministry of Chemicals and Fertilizers from 09.06.08 to 31.03.2010. The application for visitation right is subsequent to the service period referred in the aforesaid letter dated 31.03.2010 so the contention of the counsel for applicant does assumes significance and is believable that non-applicant is presently gainfully employed. Moreover, he is an educated person and is capable of earning decently. His earlier income from the project work was `12,000/- + 30% HRA (`15,600/- p.m.). Applicant has claimed the income of non-applicant as `40,000/- but no documentary proof has been adduced in this regard. The bank statement of the non-applicant placed by him of State Bank of India, Gurgaon Branch, reflects the period of statement from 31.03.09 to 14.05.2010 and periodical amount credited in his SB account is `15,600/-. The contention of the counsel for non-applicant is that applicant being educated having done B.Ed. she is capable of earning herself to maintain her daily needs. She has placed reliance on the order of Hon?ble Justice Sh. Shiv Narayan Dhingra dated 01.10.08 in CM (N) 1153/08 titled „Kavita Prasad Vs. Ram Ashray Prasad. In that case, petitioner was an MBBS qualified doctor and keeping in view her qualification….."

5. I have gone through the above reasoning. I do not find any illegality, impropriety or incorrectness in the impugned order. It is the common knowledge that the husbands, after filing the petition for grant of divorce, when they are put to terms and directed to pay maintenance to their wife in pursuance to their statutory obligation under Section 24 of the Hindu Marriage Act, they claim that they are unemployed. In the instant case also, it is the admitted case of the petitioner that at the time when he filed the petition for grant of divorce on the basis of cruelty and desertion, he was earning `12,000/- per month plus 30 per cent HRA. In addition to this, he must have been getting some other benefits like dearness allowance, travelling allowance, etc., which fact has not been disclosed. All these facts clearly show that he is capable of earning at least approximately `15,000/- to `20,000/- per month. In such a contingency, it cannot be said to be totally unreasonable or inappropriate for the court to assume the notional income of the petitioner to the extent of `15,000/- per month and divide the same in the proportion of 2:5 and pay the maintenance to the respondent/wife, as has been done in the instant case. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. For the reasons mentioned above, I feel that there is no merit in the revision petition of the petitioner and accordingly, the same is dismissed.

V.K. SHALI, J.

FEBRUARY 13, 2013 ‘AA’

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Maintnanc not to punish past neglect, but to prevent vagrancy. B establsh wife unable 2 maintain self !!


One more Cornerstone case where the Hon Apex Court clarifies that wife’s means or inability to maintain herself has to be proven for her to get maintenance and maintenance is NOT to punish the husband !! Of course, such "means" the wife has should NOT be desperate means like begging


The Hon Apex court has decreed as follows and we quote :
*****************************
* "…. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support….."
* "…. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. …."
* "…. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself……"

* "…. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. . It is has to be established that the wife was unable to maintain herself……"

* "….The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. ….."

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Supreme Court of India

Chaturbhuj vs Sita Bai on 27 November, 2007

Author: . A Pasayat

Bench: Dr. Arijit Pasayat, Aftab Alam

CASE NO.: Appeal (crl.) 1627 of 2007

PETITIONER: Chaturbhuj

RESPONDENT: Sita BaiHon

DATE OF JUDGMENT: 27/11/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:

J U D G M E N T CRIMINAL APPEAL NO. 1627 OF 2007 (Arising out of SLP (Crl.) No.4379 of 2006) Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Madhya Pradesh High Court, Indore Bench, dismissing the revision petition filed by the appellant in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’). The challenge before the High Court was to the order passed by learned Judicial Magistrate, First Class, Neemuch, M.P. as affirmed by the learned Additional Sessions Judge, Neemuch, M.P. The respondent had filed an application under Section 125 of Cr.P.C. claiming maintenance from the appellant. Undisputedly, the appellant and the respondent had entered into marital knot about four decades back and for more than two decades they were living separately. In the application it was claimed that she was unemployed and unable to maintain herself. Appellant had retired from the post of Assistant Director of Agriculture and was getting about Rs.8,000/- as pension and a similar amount as house rent. Besides this, he was lending money to people on interest. The appellant claimed Rs.10,000/- as maintenance. The stand of the appellant was that the applicant was living in the house constructed by the present appellant who had purchased 7 bighas of land in Ratlam in the name of the applicant. She let out the house on rent and since 1979 was residing with one of their sons. The applicant sold the agricultural land on 13.3.2003. The sale proceeds were still with the applicant. The appellant was getting pension of about Rs.5,700/- p.m. and was not getting any house rent regularly. He was getting 2-3 thousand rupees per month. The plea that the appellant had married another lady was denied. It was further submitted that the applicant at the relevant point of time was staying in the house of the appellant and electricity and water dues were being paid by him. The applicant can maintain herself from the money received from the sale of agricultural land and rent. Considering the evidence on record, the trial Court found that the applicant-respondent did not have sufficient means to maintain herself.

3. Revision petition was filed by the present appellant. Challenge was to the direction to pay Rs.1500/- p.m. by the trial Court. The stand was that the applicant was able to maintain herself from her income was reiterated. The revisional court analysed the evidence and held that the appellant’s monthly income was more than Rs.10,000/- and the amount received as rent by the respondent-claimant was not sufficient to maintain herself. The revision was accordingly dismissed. The matter was further carried before the High Court by filing an application in terms of Section 482 Cr.P.C. The High Court noticed that the conclusions have been arrived at on appreciation of evidence and, therefore, there is no scope for any interference. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. Section 125 Cr.P.C. reads as follows:

"125. (1) If any person having sufficient means neglects or refuses to maintain

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

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

(c) 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

(d) 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 not exceeding five hundred rupees in the whole, 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.

Explanation .For the purposes of this Chapter,

(a) ‘minor’ means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority;

(b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

["(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.";] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month’s allowance 4 [allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an 4 [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.

(5) 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."

5. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the ‘Constitution’). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means.

7. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself.

8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. In the instant case the trial Court, the Revisional Court and the High Court have analysed the evidence and held that the respondent wife was unable to maintain herself. The conclusions are essentially factual and they are not perverse. That being so there is no scope for interference in this appeal which is dismissed.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Income & means of wife be taken into account, for determining maintenance payable to her. Supreme court

* Cornerstone case where the Hon. Apex court has decided that The separate income and means of the wife can be taken into account in determining the amount of maintenance payable to her under s. 488, Criminal Procedure Code, 1898. [490 D]

* The Hon Apex court has said and we quote "….entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband. The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments….."

* The Hon Apex court further proceeds to state "….Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as a punitive weapon against their husbands……"

* Thus it is amply clear that a wife’s income and means is to be considered while deciding even the maintenance u/s 125 of Cr PC

* In our humble opinion, If this is the dictum same reason / logic shall be valid in other maintenance cases (under other sections of HMA, Sp. MA etc etc)

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Supreme Court of India

Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974

Equivalent citations: 1975 AIR 83, 1975 SCR (2) 483

Author: R S Sarkaria

Bench: Sarkaria, Ranjit Singh

PETITIONER: BHAGWAN DUTT

Vs.

RESPONDENT: KAMLA DEVI AND ANR.

DATE OF JUDGMENT17/10/1974

BENCH: SARKARIA, RANJIT SINGH

BENCH: SARKARIA, RANJIT SINGH, CHANDRACHUD, Y.V., GUPTA, A.C.

CITATION:

1975 AIR 83 1975 SCR (2) 483

1975 SCC (2) 386

CITATOR INFO :

R 1986 SC 984 (5)

R 1987 SC1100 (5)

ACT:

Code of Criminal Procedure (Act 5 of 1898) s. 488-
Maintenance to wife Whether her income and means can be
taken into account in fixing.

HEADNOTE:

The separate income and means of the wife can be taken into
account in determining the amount of maintenance payable to
her under s. 488, Criminal Procedure Code, 1898. [490 D]
(1)(a) The section does not confer an absolute right on a
neglected wife to get an order of maintenance against the
husband nor does it impose an absolute liability on the
husband to support her in all circumstances. The use of the
word ,may’ in s. 488(1) indicates that the power conferred
on the Magistrate is discretionary, though the discretion
must be exercised in a judicial manner consistently with the
language of the statute and with due regard to other
relevant circumstances of the case. [486 B-I]

(b)The object of Ss. 488 to 490 being to prevent vagrancy
and destitution, the Magistrate has to find out what is
required by the wife to maintain a standard of living which
is neither luxurious nor penurious, but is consistent with
the status of the family. Such needs and requirements of
the wife can be fairly determined only if her separate
income, also, is taken into account together with the
earnings of the husband and Ms commitments. [488 D-E]

(c)The mere fact that the language of s. 488(1) does not
expressly make the inability of a wife to maintain herself
a- condition precedent to the maintainability does not imply
that while determining her claim and fixing the amount of
maintenance, the Magistrate is debarred from taking into
consideration the wife’s own separate income or means of
support. There is a clear distinction between a wife’s
locus standi to file a petition under the section and her
being (entitled to a particular amount of maintenance. Even
in the case of a neglected child the proof of the
preliminary condition, namely, the inability to maintain
itself, will only establish the child’s competence to file
the petition; but its entitlement to maintenance and the
fixation of the amount would depend upon the discretion of
the Magistrate. [485 B-D]

(d)There is nothing in the sections to show that in
determining the maintenance the Magistrate should take into
account only the means of the husband and not the means of
the wife. On the contrary, s. 489(1) provides that ‘on
proof of a change in the circumstances of any person
receiving under s. 488 a monthly allowance, the Magistrate
may make such alteration in the allowance as he thinks fit;’
and ‘circumstances’ must include financial circumstances.
[488 E-G]

P. T. Ramankutty Achan v. Kalyanikutty, A.I.R. 1971 Kerala
22, approved.

Major Joginder Singh. v. Bivi Raj Mohinder Kaur, A.I.R.
1960, Punjab 249, and Nanak Chand Banarsi Das and Ors. v.
Chander Kishore and Ors. A.I.R. 1969 Delhi 235. overruled.

(2)Section 488, Cr.P.C., provides a summary remedy and is
applicable to all persons belonging to all religions and has
no relationship with the personal law of the parties It
provides a machinery for the summary enforcement of the
moral obligation of a man towards his wife and children.
But s. 23 and other provisions of the Hindu Adoptions and
Maintenance Act 1956, relating to fixation of the rate of
allowance, provide for the enforcement of the rights of
Hindu wives and dependents under their personal law. There
is no inconsistency between the 1956-Act
and s. 488, Cr. P.C. Both could stand together, and hence,
there is no question of s. 488 being partially repealed or
modified by s. 23 of the 1956 Act. [490 A-B]

Manak Chand v. Shri Chandra Kishore Agarwal and Ors., [1970]
1 S.C.R. 565, followed.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 228 of 1970.

Appeal by special leave from the judgment and Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in Criminal Revision No. 90 of 1970.

D. N. Nijhawan, Urmila Kapoor and Kamlesh Bansal, for the appellant.

Sardar Bahadur Saharya, for the respondents.

The Judgment of the Court was delivered by SARKAR

Can the income of the wife be taken into account in determining the amount of maintenance payable to her under Section 488 of the Code of Criminal Procedure, 1898 ? This is the principal question for determination in this appeal by special leave.

Respondent No. 1, Kamla Devi was married to the appellant Bhagwan Dutt on January 22, 1957 according to Hindu rites. out of this wedlock a daughter, Respondent No. 2, was born on November 22, 1957. On October 18, 1966, Respondent No. 1 filed a petition against the appellant for judicial separation on the ground of desertion and cruelty. During the pendency of that petition, she filed all application under s. 488 of the Code of Criminal Procedure, 1898, in the court of the Magistrate, 1st Class, Delhi, claiming maintenance for herself and for her minor daughter, on the ground that the appellant had neglected and refused to maintain them. At the date of the application Respondent No. 1 was employed as a stenographer on a monthly salary of Rs. 600/-. The appellant was at that time earning about Rs. 800/- per month. However, later on when the case was in the Sessions Court in revision, the monthly income of each of them had increased by Rs. 1501-, approximately. By his order dated June 6,1969 the Magistrate directed the husband to pay Rs. 250/- per month i.e. Rs. 175/- for the wife and Rs. 75/- for the child for their maintenance. While fixing the amount of maintenance for the wife, the Magistrate did not take into consideration her own independent income.

Against the order of the Magistrate, the husband went in revision to the Court of Session. The Additional Sessions Judge was of the view that since the income of the wife was "substantial" and enough to maintain herself". she was not entitled to any maintenance. He was further of the opinion that Rs. 75/- p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/- p.m. for the period of the pendency of the application in the trial court and thereafter to Rs. 150/- p.m. He referred the case to the High Court under s. 438 of the Code with a recommendation that the order of the Magistrate to the extent it allowed maintenance to the wife, be quashed, but the allowance of the child be enhanced as aforesaid.

A learned single Judge of the High Court who heard the reference held that in "making an order for maintenance in favour of a wife under s. 488 of the Code of Criminal Procedure the court has not to take into consideration the personal income of the wife as section 488 does not contemplate such a thing". He therefore declined the refe- rence pro-tanto, but accepted the same in regard to the enhancement of the allowance of the child. Aggrieved by the judgment of the High Court, the husband has now come in appeal before us. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The material part of Section 488 of the Criminal Procedure Code is in these terms:

"(1) if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or 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 at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) to (5).. .. .."

The corresponding part of Section 125 in the new Criminal Procedure Code, 1973, which came into force on 1 st April 1974, reads:

"125. (1) If any person having sufficient means neglects or refuses to maintain-

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

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

(c) 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

(d) his father or mother, unable to maintain himself or herself.

a Magistrate of the first class may, upon proof of a such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct……"

A comparative study of the provisions set out above would show that while in Section 488 the condition "unable to maintain itself" apparently attached only to the child and not to the wife, in Section 125, this condition has been expressly made applicable to the case of wife. Does this recasting of the old provision signify ally fundamental change in the law? Or, has this been done merely to clarify and make explicit what was formerly implict ?

Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances. The use of the word "may" in Section 488(1) indicates that the power conferred on the Magistrate is discretionary. A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband. of course, the Magistrate has to exercise his discretion in a judicial manner consistently with the language of the statute with the regard to other relevant circumstances of the case. Nevertheless, the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision.

Sections, 488, 489 and 490 constitute one family. They have been grouped together in Ch. XXXVI of the Code of 1898 under the caption, "of the maintenance of wives and children". This Chapter, in the words of Sir James Fitzstephen, provides " a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, S-section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson’s case(1) "the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts". Sub-section (2) of s. 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights. The stage is now set for appreciating the contentions canvassed by the learned Counsel for the parties. Mr. Nijhawan, learned Counsel for the appellant contends that if s. 488(1) is construed in the light of its primary object and. the nature of the jurisdiction conferred by it, together with s. 489(1), it would be amoly clear that in determining the wife’s claim to maintenance and its quantum, her independent income is a relevant consideration. in support of this contention, Counsel has referred to Mohd. Ali v. Mt. (1)

6 N.W.P. 205. Sakina Begum(1)

Narasimha Ayyar v. Rangathayammal(2);

Ploonnabalam v. Saraswathi(3);

Ahmed Ali Saheb v. Sarfara linisa Begum (4)

and P. T. Ramankutty A chan v. Kalyanikutty(5).

As against the above, Mr. Sardar Bahadur Saharya maintains that the very fact that the Section does not make the inability of a wife to maintain herself, a condition precedent to the grant of maintenanceas it does in the case of child-shows that the intention of the Legislature was that the wife’s own income or means should not be taken into account either for determining her right to maintenance or for fixing its amount. It is further urged that the language of s. 489 cannot be called in aid to construe s. 488 (1).

Reliance for the main argument has been placed on Major Joginder Singh v. Bibi Raj Mohinder Kaur.(6)

In Major Joginder Singh’s. case (supra), the wife had claimed maintenance under s. 488, Cr. P. C. both for herself and her minor son. The husband was a Major in the army, getting Rs. 1070/- p.m. It is not very clear from the Report as to whether the wife was having any substantial income of her own. However, an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance.

The learned Judge who decided the case, negatived the contention, thus :

"It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself’. No such condition has been imposed in the case of a wife. Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have, in my view, omitted to consider the implication of this distinction while construing the scope and effect of s. 488. In my opinion, the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section, if she is otherwise found entitled to it.."

Commenting on the cases cited before him, the learned Judge further observed : "But if those authorities intend to lay down any rigid rule of law that the only right which a wife possesses under s. 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that also only if she has no other means or source, then I must with respect, record my emphatic dissent."

It may be noted that the above principle spelled out from the interpretation of s. 488(1) in Major Joginder Singh’s case (supra), was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors. v. Cliander Kishore and Ors.(1) to deduce the proposition that the wife’s right to receive maintenance under s. 488, Criminal Procedure Code is an absolute right.

(1) A.I.R. 1944 Lah. 394.

(2) A.I.R. 1947 Mad. 204.

(3) A.I.R. 1957 Mad. 693.

(4) A.I.R. 1952 Hyd. 76

(5) A.I.R. 1971 Kerala 22.

(6) A.I.R. 1960 Punjab 249.

In our opinion, one wrong assumption has led to another false deduction. The mere fact that the language of s. 488(1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife’s own separate income or means of support. There is a clear distinction between a wife’s locus standi, to file a petition under s. 488 and her being entitled, on merits, to a particular amount of maintenance thereunder. This distinction appears to have been overlooked in Major Joginder Singh’s case (supra). Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband. The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.

There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in the language of the associate s. 489(1) that the financial resources of the wife are also a relevant consideration in making such a determination. Section 489(1) provides inter alia, that "on proof of a change in the circumstances of any person receiving under s. 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit". The "circumstances" contemplated by s. 489(1) must include financial circumstances and in that view,the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife. Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under s. 488(1), the Magistrate is competent to take into consideration the separate income and means of the wife. (1) A.I.R. 1969 Delhi 235. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

We do not wish to burden this judgment with discussion of all the decisions that have been cited at the Bar. It will suffice to notice one of them rendered by the Kerala High Court in which Major Joginder Singh’s case (supra) was explained and distinguished. That case in P. T. Ramankutti v. Kalyankutty (supra) therein, the husband was getting a net salary of Rs. 240/-, while the monthly salary. of the wife was (after deductions) Rs. 210/-. The question, was whether the wife in such a financial position had a right to claim maintenance under s.488, Criminal Procedure Code. after referring to the observations of Dua, J. in Major Joginder Singh’s case (supra) and surveying the case law on the subject, the learned single Judge of the Kerala High Court correctly summed up the position thus ;

"To take the view that in granting maintenance under Section 488 to a wife her personal income also can be considered may Prima-facie appear to be against the language of the section because the condition "unable to maintain itself" appearing therein attaches itself only to child and not to wife. But that condition has application only in considering the maintainability of a petition filed under s.488. A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself. But on her application at the time of the granting of monthly allowance to her there is nothing prohibiting the Court from considering whether she can maintain her- self with her own income and if she can, granting her nothing by way of allowance."

Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as a punitive weapon against their husbands. It is next contended on behalf of the appellant that s. 488 must be deemed to have been partially repealed and modified by s. 23 of the Hindu Adoptions and Maintenance Act, 1956 (for short, called the Act) which provides that in determining the amount of maintenance, the Court shall have, inter alia, regard "to the value of the wife’s property and any income derived from such property or from the claimant’s own earning or from other sources".

Clause (b) of s.4 of that Act provides

"Save as otherwise expressly provided in this Act

(a) x x x

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."

The question therefore resolves itself into the issue : whether there is any thing in s.488 which is in consistent with s .23 or any other provisions of the act.

This matter is no longer resititegra.In Nanak Chand v. Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78 of 1956 and s. 488, Criminal Procedure Code. Both could stand together. The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus. The law was substantially similar before when it was never suggested that there was any inconsistency with S. 488, Cr. P. C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.

(1) [1970] 1 S.C.R. 565.

We have said and it needs to be said again, that s. 488 is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution become a hazard to the well-being of orderly society. As against this, s. 23 and other provi- sions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law. This contention therefore is meritless and we negative the same. For the reasons aforesaid, we allow the appeal, set aside the judgment of the High Court and send the case back to the trial Magistrate to refix the amounts of maintenance. In the case of the wife, he shall together with other relevant circumstances, take into account her income also. In the case of the daughter, he shall afford opportunity to the parties to lead fresh evidence and then refix her allowance. V.P.S.

Appeal allowed.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist