Category Archives: no maintenancec to erring wife

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! Rajastan HC

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. Rajastan HC

A deserting wife claims maintenance alleging beatings, dowry torture etc. The learner Magistrate disallows her claims based on evidence and facts. On appeal the learned sessoions court allows maintenance to the wife. Hon Raj HC appreciate the facts and decrees “… The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice….” and refuses to grant her any maintenance. Only children get maintenance

The HC also confirms that “…In revisional jurisdiction, Court cannot be justified in reappraising evidence and come to its own conclusion when it is not shown that Magistrate omitted to consider some vital evidence or had misread evidence. Learned Addl. Sessions Judge obviously exceeded jurisdiction in reversing finding of fact recorded by Magistrate, without cogent reasons. ….”


Rajasthan High Court

Bheekha Ram vs Goma Devi And Ors. on 22 January, 1999

Equivalent citations: I (2000) DMC 76, 1999 WLC Raj UC 260

Author: G Gupta

Bench: G Gupta

ORDER

G.L. Gupta, J.

  1. This revision by the husband has been preferred against the revisional order dated 17.3.1997 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner where he set aside the order dated 22.4.1995 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondent Nos. 1 to 2.
  2. The short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under Section 125, Cr. P.C. against her husband-Bheekha Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheekha Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated the Bheekha Ram earned Rs. 60/- per day by doing mason work. It was prayed that she be allowed maintenance @ 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.
  3. Goma Devi entered into the witness box and examined A.W.1. Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined. N.A.W. 2 Kaluram, N.A.W. 3 Modaram and N.A.W. 4 Sampatram. After hearing the Counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegation of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against the order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.
  4. Mr. S.D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bona v. Sher Mohammed, 1990 RCC 57; Bhanwari Bat v. Mohd. Ishaq, 1984 MLR 234; Budharam Kosta v. Pitarbai, 1984 MLR 62; and Raghbir Singh v. Krishna, 1982 MLR 307.
  5. On the other hand, Mr. G.K. Vyas urged that this Court should not interfere in the revisional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.
  6. I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned Counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reapreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a Revisional Court is not as that of Appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entered by the Trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revision power, the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bound of its jurisdiction including the question whether the Court had failed to exercise the jurisdiction vested in it: vide Associated Cement v. Keshvanand, AIR 1998 SC 596=II (1998) SLT 26 (SC).
  7. In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that on her own admission she was living in the house constructed by her husband. On the admission of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Distt. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under Section 125, Cr. P.C.
  8. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife.
  9. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice.
    10. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is fault of the children when they are living with their mother. The father is bound to provide maintenance to them.
  10. Consequently, this revision is partly allowed. The order of the Addl. Sessions Judge granting maintenance to Goma Devi is set aside. The order granting maintenance to the children is upheld.

No maintenance to erring women ! DV case won by husband on strong arguments & facts.

No maintenance to erring women ! DV case won by husband on strong arguments & facts. Sadly 10 yr life gone & NO punishment to ablaa after she filed false cases

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Neetu Jain Vs Vikas Jain and others

COMA/41794/2013

In the court of Sh. Rajinder Singh Nagpal, PCS, Judicial Magistrate Ist Class, Ludhiana.

Criminal Complaint No. 23
Date of Institution: 28.04.2012
Computer I.D. No. COMA/41794/2013
Date of Order: 17.09.2015

Neetu Jain daughter of Sh. Sat Pal Jain wife of Sh. Vikas Jain, resident of 4036, Street No. 7, New Madhopuri, Ludhiana………Applicant/Aggrieved person

VERSUS

1. Vikas Jain son of Sh. Vinod Kumar Jain,
2. Vinod Kumar Jain son of Not Known,
3. Veena Jain wife of Sh. Vinod Kumar Jain,
4. Varun Jain son of Sh. Vinod Kumar Jain, all residents of 1016-8A, Akashpuri, Civil Lines, Ludhiana………Respondents

(Application U/S 12, 17, 18, 19, 20, 21, 22 of the Protection of Women from Domestic Violence Act, 2005)

Present: Sh. Surinderpal Singh Gupta Advocate for the applicant.
Sh. Munish Gupta Advocate for the respondents

JUDGEMENT:-

1. The present application for protection of woman from Domestic Violence Act 2005 has been filed by the applicant Neetu Jain on the allegations that the applicant has been got married with respondent no. 1 on 28.04.2011 at Ludhiana according to Hindu Rites and Ceremonies at Ludhiana. After the marriage, both the parties started residing in House No. 1016-8A, Akash Puri, Civil Lines, Ludhiana. It is pertinent to mention here that at the time of marriage, all the respondents had demanded huge dowry articles and as such her parents spent huge amount in the marriage and gave huge dowry and Istridhan articles at the time of marriage, which a hope that their daughter will remain happy in her matrimonial home. The entire dowry and Istridhan articles are in possession of the respondents. However, after sometime of the marriage, all the respondents even started treating the applicant with utmost cruelty on demand of some dowry and to fulfill their illegal demands, the applicant brought one TV set, CD player, Blower and other household goods from her parents with a hope that better sense may prevail upon the respondents. The applicant gave birth to two sons, one of the son is in the custody of the applicant. The respondent then started pressurizing upon the applicant to bring an amount of ? 5,00,000/- from her parents on the pretext that they wanted to install more machinery in their factory and when even the applicant refused to accept to their said illegal demand, she was subject to severe beatings from the hands of the respondents and ultimately on 7.11.2011 on the demand of 5,00,000/-, the respondents after giving beatings to the respondents taken her out of the matrimonial house which is also share household alongwith younger son and since then she is residing in her parents house. During the period she stayed with the respondents she was being maltreated and was given beatings by the respondents on the demand of more dowry and cash amount. The respondents have illegally retain the other son of the applicant and she also went the custody of the said son from the respondents. The daughter and son-in-law of the respondent no. 1 also used to join hands with the respondents. This act of the respondents amount to domestic violence and prayed for permanently monthly maintenance allowance from respondent Vikas Jain Rs. 50,000/- per month alongwith other relief i.e. protection order, residence order and monetary order.

2. Notice of the present application was issued to the respondents, who appeared through counsel and filed detailed written statement wherein they took preliminary objections that the petition is not maintainable at all and the applicant is estopped by her own act and conduct from filing the present petition. The applicant has not come to the court with clean hands and she has concealed the material facts from the court. Her marriage was solemnized with respondent no. 1 on 28.04.2011 and after marriage, two sons namely Vansh Jain and Bharat Jain have born from this wedlock. The marriage was performed in simple manner and only 50 persons from the side of the respondent no. 1 attended the marriage. No dowry was either demanded or given in the marriage as it was a dowry-less affair. However, parental family members of the applicant were having dishonest and fraudulent intentions from the very beginning and she started acting as per the asking of her parental family members. The applicant started quarreling with the respondent no. 1 on petty matters and started forcing him to live separately from his parents after getting his share in their properties. The parental family members of respondent no. 1 used to visit the house of the respondent no. 1 and applicant after committing theft of one or the other thing including gold ornaments used to give the same to them in their active connivance. The respondent number 1 and his family members never demanded any dowry from the applicant and her parental family members. The applicant and her parental family members were having malafide intentions and they wanted that the respondent number 1 may give younger son Bharat Jain to Sheena Jain wife of Vikram Jain as they were having no child nor any child could have born to them. The respondent no. 1 did not agree. The respondent no. 1 was doing labour job of embroidery work. The respondent no. 1 was having his own embroidery machines. The father of the applicant like other customers also used to come to the respondent no. 1 for getting done embroidery work. He used to instruct the colours of which embroidery was to be done on the garments, clothes etc and he took the respondent no. 1 in confidence. After some time, the respondent no. 1 found that there was also short of the embroidery clothes and goods etc and the goods were never completed and respondent no. 1 thought that some labour is doing this illegal theft and seeing the strict behaviour of the respondent no. 1, the labour started leaving the job and the embroidery work became stand to still and customers also started leaving the respondent no. 1 as they found irregularities. Though, the respondent no. 1 engaged new labour, but the goods were never remained complete and respondent no. 1 was unable to understand whether goods were being theft from the house or work place as the goods having more value used to be taken to the house for doing cutting thread and embroidery for giving finishing touch. There was no allowance of entering of stranger to the house of the respondent no. 1. The respondent no. 1 started keeping strict eagle eye. The respondent no. 1 was not resourceful to get installed CCTV. On keeping strict watch in the house, the respondent no. 1 came to know that Satpal and his son Rajiv were visiting the house of the respondent no. 1 in his absence in routine and there was very much understanding between the applicant and her family members and they used to leave the house before reaching of the respondent no. 1. The respondent no. 1 started making recordings of the phone calls on account being suspicious and after going through the recordings, the respondent no. 1 came to know that the applicant’s parental family members in pre-planned manner used to set the time of visit to the house of the respondent no. 1 and commit theft and it also revealed that not only factory goods are being theft, but also also valuable household articles and gold ornaments are also being stolen. Applicant Neetu Jain played active role and she was master and behind all these thefts. The applicant had also made duplicate keys of the entire house rooms etc and were using the same as per their convenience and they committed theft of cash, jewellery from the main alimrah whose keys always remain with mother of the respondent no. 1 and even from the personal alimary of the respondent no. 1, blank cheques, drafts, parties’s signed parchis, ATM Cards etc. were stolen. About all this when the respondent no. 1 asked questions from the applicant Neetu Jain, she started quarreling with the respondent no. 1 and started asking him to appoint a security guard and respondent no. 1 came under depression and he could not understanding anything. Thereafter, in absence of the respondent no. 1, applicant Neetu Jain ran away from the house and when the respondent no. 1 did not find her in the house she made inquiries and came to know that she had gone to her parental house and when the respondent no. 1 made calls to the parental house of Neetu Jain, then father of the applicant Satpal Jain abused the respondent no. 1 very badly and threatened to implicate in false cases. Thereafter, respondent no. 1 informed the matter to the police, but police did not take action and ultimately the respondent no. 1 approached the Police Commissioner, Ludhiana and thereafter, the respondent no. 1 received calls from Police Station Kotwali, Chaura Bazar and thereafter, police officials received documents and recorded statement, but no action was taken thereafter. The applicant and her parental family members thereafter again dared to come to the respondent no. 1 and gave beatings to him. They are threatening to kill the respondent no. 1. The respondent no. 1 has suffered huge losses. The respondent no. 1 now without any work and is in jail. There is an apprehension of misuse of the blank cheques, papers etc of which theft is committed by the applicant. In this manner, the applicant has committed fraud and has deserted the respondent no. 1 without any sufficient cause. On merits, the marriage of the applicant and respondent no. 1 is an admitted. All the remaining averments made by the applicant in the application have been denied by the respondents and prayed for dismissal of the applicant.

3. In order to prove her case, the applicant Neetu Jain herself stepped into the witness box as PW1 and tendered her duly sworn affidavit Ex.PW1/A, in which she reiterated the entire version of the application.

4. The applicant further examined Satpal Jain son of Parkash Chand Jain as PW2, Reeta Jain wife of Satpal Jain as PW3, Gurinder Singh son of Basant Singh as PW4, Hitesh Chopra son of Suresh Chopra as PW5, who come present and tendered their duly sworn affidavit Ex.PW2/A to Ex.PW5/A and corroborated the version of the applicant examined as PW1.

5. The applicant further examined Rajeev Jain son of Satpal Jain as PW6, who come present and tendered his duly sworn affidavit Ex.PW6/A and proved on record photocopy of the certificate issued by Shifaly Public School in the name of Bharat Jain as Ex.P1.

6. The applicant further examined Anoop Dubey, Tax Assistant, Office of Additional C.I.T Range, Ludhiana as PW7, who come present and stated on oath that he is a summoned witness and has brought the uncertified record of returns of Satpal Jain having PAN number ABNPJ3625J with returns for the assessment year 2011-2012, 2012-2013, 2013-2014. This is confidential record of their office and they do not disclose to the third party in the interest of confidentiality and protection of privacy, but as per this record, the gross total income of Satpal Jain for the assessment year 2011-2012 was 4,25,748/-, for the assessment year 2012-2013 was ? ? 5,02,972/-, for the assessment year 2013-2014 was 7,18,208/- ? (gross total income is termed as proprietor’s fund). So far as certified copies of acknowledgements of these returns are concern, these acknowledgements are generated electronically in their income tax office of Banglore and he is not in a position to produce the same. Copy of the summons sent by the court is enclosed as Annexure-A.

7. Thereafter, the applicant closed her evidence by making separate statement and the case was fixed for evidence of the respondents.

8. To rebut the case of the applicant, respondent no. 1 Vikas Jain himself stepped into the witness box as RW1 and tendered his affidavit Ex.RA and proved on record certified copy of the order dated 24.04.2015 as Ex.R1, copy of order dated 15.12.2014 as Ex.R2.

9. The respondents further examined Vansh Jain as RW2, who come present and fully corroborated the version of the respondent no. 1 and thereafter, respondent no. 2 tendered the documents certified copy of the order dated 01.04.2015 as Ex.R3, certified copy of the statement of Neetu Jain in case titled as “Neetu Jain Vs Vikas Jain” as Ex.R4 and thereafter, counsel for the respondents closed the evidence on behalf of the respondents.

10.I have heard the counsel for the applicant and the counsel for the respondents and have gone through the entire material placed on record. Now it has been contended by the counsel for the applicant that the applicant was married with the respondent no. 1 on 28.04.2011 at Ludhiana according to Hindu Rites and Ceremonies. However, thereafter, she was ill-treated by her husband and his relatives and illegal demands of dowry were made and finally on 07.11.2011 she was expelled from her matrimonial home. Hence, she is entitled to the reliefs as claimed. On the other hand, the respondents have denied the allegations of the applicant and have prayed for dismissal of the same.

11.Now the witnesses examined by the applicant stated on the lines of the applicant under section 12 of the Domestic Violence Act. The applicant has contended that she was ill-treated and illegal demands were made from the side of the respondents and when she failed to fulfill the same she was ultimately expelled on 07.11.2011. However, after going through the entire material placed on record, this court is of the considered view that the allegations of illtreatment and demand of dowry are vague and are not liable to be believed. Though there are general allegations in the body of the application and stated by the applicant witnesses, but despite that the story putforth by the applicant does not appear trustworthy. PW1 Neetu Jain admitted in her cross examination that during the birth of her two sons she was admitted in the hospital and all the medical expenses were borne by the respondents. She also stated that she had not mentioned the company of the TV which was demanded by them. She also admitted that after her marriage her in-laws had already two TV sets. She also stated that she do not know what Vikas Jain was doing for the last 10 years. She also admitted that she had no proof regarding the demand of TV set, CD player, Blower from the respondents and that she even had no bills etc to show that they had supplied the same to the respondents. She also could not mention the date, year etc when she was given beating by Vikas Jain. She also admitted that she had no bills etc. regarding the dowry articles which were given to the respondents. She also admitted that she had no proof regarding the business of M/s V Jain Fabrics which was run by the respondents and had even no proof of his occupation. She also could not mention the income of the said firm. She also stated that she gave no application to the police authorities against Vikas Jain and his family members during the 10 years of their marriage. She also admitted that during these 10 years of their marriage her relatives used to visit the house of Vikas Jain. She also admitted that she is not ready to go to the house of Vikas Jain and that she will first see the portion only then she could visit. Similarly, PW2 Satpal Jain stated in his cross examination that before 7.11.2011 he had no altercation with Vikas Jain. He also admitted that before that date even no scuffle took place between Neetu Jain and Vikas Jain in his presence. He also stated that even he never had any altercation with Vinod Kumar Jain and with Veena Jain. He also stated that even his wife had no scuffle or altercation with Veena Jain or with her family members and that whenever he and his wife used to visit the house of Vinod Kumar Jain and they were treated warmly. He also admitted that Vikas Jain had two T.V. Sets and CD player earlier and that he had no proof regarding the delivery of 5,00,000/- to the respondents. ? Rita Jain while appearing as PW3 admitted in her cross examination that at the time of marriage Neetu Jain used to live in rented accommodation and marriage ceremony was conducted immediately i.e. within eight days after meeting. She also admitted that she can send her daughter to in her-laws provided the circumstances exist there as they used to be at the time of marriage i.e. the financial condition of in-laws. She also admitted that she had no proof of the income of Vikas Jain and his family members and about what he is doing these days. Further in her statement which is Ex.R4 on record made during the proceedings of petition under section 125 of Cr.P.C Neetu Jain even admitted that till date she had filed no petition under section 9 of Hindu Marriage Act. She also admitted that Vikas Jain is neither alcoholic nor had other bad habits and is even maintaining Vansh Jain. Thus, from the above mentioned evidence, it is clear that the applicant has miserably failed to prove the allegations of cruelty and demand of dowry articles as alleged by her. It was incumbent upon the applicant to have clearly established on record the various instances of cruelty committed by the respondents and to establish that persistent and illegal demand of dowry were made by them due to which she was ultimately expelled from the matrimonial home. However as mentioned above there are only general allegations in the body of the application and the same appears to be vague and are not liable to be believed. The applicant Neetu Jain alongwith her father Satpal Jain clearly admitted in their cross examination that at the time of marriage of the applicant the respondents had earlier two TV sets and CD player. Further Neetu Jain also admitted that she had no proof i.e. bill etc regarding the TV set, CD player, Blower which she alleges to have been given to the respondents to meet their illegal demand. Further, she also admitted that she had placed no list of dowry articles on record to show that dowry articles were given at the time of her marriage. She also admitted that she never gave application to police officials during the 10 years of her marriage against the respondent Vikas Jain and his family members. Similarly, Satpal Jain also admitted that before 07.11.2011 he or his wife never had any altercation with Vikas Jain and his family members and whenever they visited their house they were always treated good. Further as mentioned above, Neetu Jain herself admitted in her cross examination that she is not ready to go to the house of the respondents and that she can think about only after watching the financial conditions of the respondents. The same admission was made by PW3 Rita Jain. Further, Rita Jain also admitted that the marriage was solemnized within eight days after meeting the respondents. Thus all these circumstances and the above mentioned evidence clearly shows that the allegations of cruelty and demand of dowry articles by the applicant are without any basis. It is highly improbable that the respondents would demand TV set, CD player, Blower from the applicant when they already had these articles. Further even the applicant has failed to establish on record that sufficient dowry articles were given at the time of marriage. PW3 Rita Jain clearly admitted that the marriage was solemnized within eight years. Further no list of dowry articles were placed on record in support of this contentions. Also the allegation regarding the demand of 5,00,000/- appears to be ? vague. No evidence qua this fact was also produced on record in the shape of any bank statement etc. As clearly admitted by the applicant and her father they could not even produced on record any bills etc. Regarding the articles i.e. CD Player, Blower and TV set which they allege to have given to the respondents in order to meet their illegal demand. Further as admitted by the applicant herself that she never moved any application to the police officials regarding the ill-treatment by the respondents within 10 years of her marriage. Even PW3 Satpal Jain also admitted that before 07.11.2011 they never had any altercation with the respondents and their family members. All these factor clearly goes to show that the allegation of cruelty and demand of dowry articles leveled against the respondents are without any basis. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12.Now as clearly mentioned above, the applicant has miserably failed to prove on record allegation of cruelty and illegal demand of dowry articles. Further it is also an establish fact on record that the applicant is not residing with the respondents. Neetu Jain while appearing as PW1 clearly admitted in her cross examination that she is not willing to go to the house of the respondents and that she could only think of that after seeing the residence of the respondents. Similar admission was made by PW3 Rita Jain who also stated that she cannot send her daughter to her in laws house provided the financial condition of her in-laws is better. Now in the present case, it has been contended by the applicant that she is entitled to maintenance to the tune of 50,000/- from the ? respondents as he is running a factory under the name and style of M/s V. Jain Fabrics and is earning more than 2,00,000/- per ? month. However, after hearing the contentions of counsel for the applicant and counsel for the respondent and after going through the entire material placed on record, this court is of the considered view that the applicant is not entitled to any such maintenance amount. In the present case, there is nothing on record to show that the applicant was treated with cruelty and persistent demand of dowry articles was made and due to all these factors she had reasonable ground for not residing with the respondents. In the present case, the applicant has failed to prove as to why she is residing out of her matrimonial home. The allegations of cruelty leveled against the respondents are not proved on record. Therefore, merely alleging that the financial condition of the respondents is not good and thereafter she cannot reside with the respondents is no ground at all for staying away from the matrimonial home. Therefore, the applicant has failed to prove any just and sufficient ground for her living separately and is accordingly, not entitled to maintenance.

For that reliance is placed on the law laid down by Hon’ble Punjab & Haryana High Court in 1994 (1) HLR 350:-

“Criminal Procedure Code, 1973, section 125 (old section 488). Husband serving in Bengal. Wife wanted him to leave service and live in Village. Wife has no right to force her husband to leave service. Wife living separately. Wife not entitled to maintenance”.

Further reliance is placed on the law laid down by Allahabad High Court in 1989 (1) HLR 278:-

“Criminal Procedure Code, 1973. Section 125. Maintenance. Revision by husband against his wife. Allegation of wife that husband used to beat her treat her with cruelty and was not caring for her food and clothes. Husband earing 1500/- ? per month. Husband neglected her. Beating turned her out of house. Maintenance claim of 500/- per ? month. Wife earning. She is teacher in Muslim Girls Madarsa. Wife admitted in cross examination that husband never misbehaved with her. Petition dismissed. However session court allowed 400/- ? per month as maintenance. Nothing on record to show that at any stage of proceedings there were talks of compromise between the parties. Wife failed to proved that husband had been cruel to her. Wife not entitled to any maintenance allowance and petition was rightly dismissed by the Magistrate. Husband not guilty of neglect or refusal to maintain wife”.

Further reliance is placed on the law laid down by Hon’ble Punjab & Haryana High Court in 2012(4) Law Herald 3118:

“Criminal Procedure Code, 1973, section 125. Hindu Marriage Act, 1955, Section 24. Maintenance pendente lite. Wife is not entitled to double maintenance. If, she has already been awarded maintenance under section 125 that would merge with the maintenance pendente life awarded by the trial court invoking the provisions under section 24 of the Hindu Marriage Act. Meaning thereby, Court while dealing with the maintenance pendente life under section 24 of the Hindu Marriage Act, will have to take into account the amount awarded under section 125 of the direct payment of maintenance pendente lite”.

Further reliance is placed on the law laid down by Bombay High Court in 1989 (1) HLR 269:-

“Civil Procedure Code, 1973. Section 125. Scope. Maintenance. Wife failed to prove her case for maintenance on the ground of cruelty. Trail Court rejected her application of respondent (wife) for maintenance under section 125 of Criminal Procedure Code. Appellate Court reversed the order of Trial Court and held the wife entitled to maintenance under section 125 Criminal Procedure Code. The material placed on record show that the Trial Court took the possible view. Appellate Court erred in reappreciating the evidence without pointing out the patent or material illegality committed by Trial Court in reaching to the conclusion that applicant (wife) had failed to prove her case and she is not entitled to maintenance. Allegations of ill-treatment and cruelty beyond the scope of section 125 Criminal Procedure Code. Appellate Court while Reversing the order of Trial Court completely misdirected himself in approach and exercise of the jurisdiction. Order of appellate Court be set aside”

Further reliance is placed on the law laid down by Calcutta High Court in 2002 (2) HLR 286:-

“Criminal Procedure Code, 1973, Section 125. Maintenance. Justification of husband obtaining divorce on ground that wife left matrimonial home voluntarily. Wife claiming maintenance. Wife refused to live with her husband. No cogent ground shown by wife of live separately from husband. Wife also failed to prove that she was unable to maintain herself. Held, wife not entitled to maintenance from husband. Trial Court held not justified in allowing application under section 125 Criminal Procedure Code. Order granting maintenance set aside”.

Further reliance is placed on the law laid down by Rajasthan High Court in 1999 CriLJ 1789:-

“Criminal Procedure Code, 1973, Section 125 and 397. Maintenance claimed by wife for herself and for two minor children. She was living separately and refused to live with husband in spite of his offer to maintain in her and her children. Magistrate rightly refused maintenance. Revisional Court by reappraising evidence overstepped its jurisdiction and allowed maintenance. Wife living separately without just cause, not entitled to maintenance. However, her children are entitled for maintenance. Revisional jurisdiction and its scope. Clarified”

Further reliance is placed on the law laid down by Uttarakhand High Court in 2013 (2) U.D. 572:-

“Criminal Procedure Code, 1973, Section 125(4). Claim of maintenance of wife refusing to live with her husband. Even if it is proved that the husband is having sufficient means and his wife is unable to maintain herself, the wife is not entitled to maintenance allowance, if she refused to live with her husband without any sufficient reason, as has been provided under sub-section (4) of Section 125 of Criminal Procedure Code”.

Further reliance is placed on the law laid down by Bombay High Court in 2002 (1) ALL MR (Cri) 704:-

“Criminal Procedure Code, 1973. Section 125. Decree for restitution of conjugal rights in favour of husband. Wife not joining husband without justification. Wife not entitled to maintenance” “Criminal Procedure Code, 1973, section 125. Wife must prove neglect on part of husband. Ill-treatment cannot be substantiated on basis of general allegations of wife in absence of details thereof”.

Further reliance is placed on the law laid down by Madhya Pradesh High Court in 1991 (1) HLR 457:-

“Criminal Procedure Code, 1973, section 125. Maintenance. Wife herself left house of husband and refused to live with him because he was living in a small accommodation jointly with his sister and brother-in-law. Held. Wife was guilty in refusing to live with husband. Wife not entitled to maintenance under section 125, Criminal Procedure Code”.

Further reliance is placed on the law laid down by Calcutta High Court in 2000 (4) AICLR 462:-

“Criminal Procedure Code, 1973, section 125. Maintenance. Wife seeking maintenance alleging that she was subjected to torture and ill-treatment by her husband in-laws. However, failed to prove the same. Wife having failed to prove any just and sufficient ground for her living separately. Not entitled to maintenance in view of provisions of section 125 (4). Criminal Procedure Code”.

Further reliance is placed on the law laid down by Punjab and Haryana High Court 1991(2) R.C.R (Criminal) 281:-

“Criminal Procedure Code, 1973, section 125. Wife deserting husband taking with minor child. Minor child entitled to maintenance even if he was kept away wrongly by the wife. Wife not entitled to maintenance”.

13.However as far as the minor child is concerned, it is the legal and moral obligation of the respondent no. 1 to maintain him. Regarding the maintenance amount no proof of the exact earning of the respondent no. 1 have been placed on record. It has been admitted by PW1 Neetu Jain as well as her witnesses that they had not knowledge about the exact earning of Vikas Jain. Further they also admitted that they have no proof regarding the income of the respondent firm i.e. M/s V Jain Fabrics. Hence, in such likes circumstances and considering the fact that Vikas Jain is an able bodied person, therefore, maintenance to the tune of 3000/- per ? month should be paid by him to the minor son who is in the custody of the applicant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14.Thus, in view of the above mentioned discussion, the reliefs which are claimed by the applicant under section 18 of Domestic Violence Act i.e. Protection Order and under section 17 of Domestic Violence Act regarding her claim of maintenance are hereby dismissed. Even no ground at all is made out for granting compensation order in her favour. However, as mentioned above, the minor son of the applicant in her custody is legally and morally entitled to be maintained by his father namely Vikas Jain respondent no. 1. Hence, respondent no. 1 is directed to pay ? 3000/- per month as maintenance to the minor son of the applicant from the date of this order. The petition is accordingly dispose of. File be consigned to the record room. File be consigned to Record Room.

Announced in open Court.

17.09.2015 Rajinder Singh Nagpal, PCS

Judicial Magistrate Ist Class

Ludhiana

35 cases of maintenance denied, or lowered

 

  • 1. Deserting wife NOT entitled to maintenance us 125 CrPC. NOT entitled after divorce also! Bombay HC  http://wp.me/p7s7-1Da
  • 2. NO maintenance U/S 125CrPC 2 Deserting wife. Hubby win RCR & Divorce. Wife claims maintenance. Bom HC refuses  http://wp.me/p7s7-1D9
  • 3. Deserting wife NOT entitled to 125CrPC maint. Civil court finding, binding on Magistrate court! Cal HC  http://wp.me/p7s7-1CT
  • 4. Exparte interim us 125CrPC to be modified & even CANCELLED on application by husband.Cal HC & Supreme Court  http://wp.me/p7s7-1CQ
  • 5. Ex parte maintenance u/s 125 CrPC set aside IF husband not allowed to defend, to lead evidence!! Madras HC  http://wp.me/p7s7-1CO
  • 6. Second wife NOT entitled to maintenance under Section 125 CrPC. Husband to plead & conclusively prove 1st marriage. Bombay HC  http://wp.me/p7s7-1CM
  • 7. Woman marrying a married Hindu, with a legally existing wife NOT entitled 2 maintenance under 125 CrPC ! Supreme court !  http://wp.me/p7s7-1CL
  • 8. 125CrPC Proceeding civil nature. Paternity 2 b decided by Magistrate b4 order !! Supreme Court 1960 !  http://wp.me/p7s7-1CJ
  • 9. if wife looses maint in civil case, she looses right to file sec 125 and claim maint !! Bombay HC  http://wp.me/p7s7-1CI
  • 10. Wife gets 9K maintenance when husband’s salary assessed at 45K; Cal HC  http://wp.me/p7s7-1A1
  • 11. amount paid at family court in matrimonial case adjusted in Sec125 dues & NO arrest of hubby! Jharkhand HC  http://wp.me/p7s7-1z3
  • 12. No 125CrPC Main 4 deserting 498a wife. http://wp.me/p7s7-1wB
  • 13. Crpc125. No arrest b4 execution proceedings on defaulter’s property. collect arrear similar to fines http://wp.me/p7s7-1uu
  •   14. 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.  http://wp.me/p7s7-1qd
  • 15. Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person; So wife cannot claim double maintenance under CRPC 125 and DV Act; Delhi HC ;  http://wp.me/p7s7-1q6
  • 16. Major daughters (i.e.) above 18 not entitled to maintenance u.s 125 Crpc.  http://wp.me/p7s7-1q3
  • 17. Ablaa WIFE already making moolah in civil case of sec 125 CrPC cannot make MORE moolah using DV !http://wp.me/p7s7-1p0
  • 18. Arrest for non payment maintenance us 125 CrPC within MAX 1yr,  http://wp.me/p7s7-1nS
  • 19. S125 CrPC maintenance adjustable against maintenance in matri. proceedings & not over & above Sec 24 HMA. Supreme court of India  http://wp.me/p7s7-1nR
  •   20. Wife Obtained CrPC 125 order in 2004; Not a penny maintenance paid till 2011 !!!! Wife running pillar to post !!  http://wp.me/p7s7-Mk
  • 21. Amount awarded u/s 125 Cr.P.C. adjustable against amount awarded in matrimonial proceedings & was not over and above  http://wp.me/p7s7-Fw
  • 22. Employed & deserting wife : NO maintenance u/s 125. Even though wife’s salary is only Rs 2200/- p.m.  http://wp.me/p7s7-yE
  • 23. NO MAINTENANCE u/s 125 Cr. P C to deserting wife  http://wp.me/p7s7-lC
  • 24. Well educated employed wife resigning on own NOT entitled 2 maintenance in DV case. Only Kid’s maintenance Delhi HC  http://wp.me/p7s7-1Bv
  • 25. No maintenance to adulterous wife, but mere depositions not sufficient, adultery to be proved-Delhi HC  http://wp.me/p7s7-1Ba
  • 26. Maintenance not to punish past neglect, but to prevent vagrancy. To be established wife unable 2 maintain self !!  http://wp.me/p7s7-1A9
  • 27. Income & means of wife be taken into account, for determining maintenance payable to her. Supreme court  http://wp.me/p7s7-1A8
  • 28. Multi crorepathy businessman’s son escapes wid just 6000 pm. interim 2 children  http://wp.me/p7s7-1zV
  • 29. Eighteen years mistress NOT a “relationship in the nature of marriage..”, NO Maintenance as she alienated the legal wife and kids !!  http://wp.me/p7s7-1so
  • 30. willful non payment of interim maint, court can strike-off husband’s written stmt, but he can fight against wife’s case! P&H HC Gem. shows that though husband’s written statements are struck off, he can continue to cross examine wife’s side witness, prove the falacy in her arguments and argue that she should NOT get her prayers granted !!  http://wp.me/p7s7-1lR
  • 31. NO maint enhance u/s 12 DV act! P&H HC GEM. Wife separate since 1972 (40+ years) tries enhance undr DV act. Looses!!  http://wp.me/p7s7-1lh
  • 32. Kid’s Maintenance to be borne by husband AND wife in proportion to their salaries !! Supreme court GEM !  http://wp.me/p7s7-1hr
  • 33. No Permanent Alimony to be granted under Sec 25 HMA if divorce is NOT granted. Wife and kid NOT to get maintenance under Sec 125 CrPC if they were denied maintenance in a civil case as decisions on a Civil case override criminal case.  wp.me/p7s7-2fk
  • 34. No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. Rajastan HC  http://wp.me/p7s7-2jB
  • 35. Quash Sec 125 CrPC case when a civil (divorce) case is already pending ! Madras HC (old case); A classic case where the Madras HC quashes a Sec 125 case filed by the wife three years after desertion and AFTER  a civil (divorce) case is also pending between the couple. The court clearly states that Sec 125 CrPc is for quick and expeditious relief, when there is NO other relief in sight. So it is NOT proper for the wife to run to a magistrate court and seek relief under sec 125 when a civil case (for divorce and other reliefs) is already proceeding / pending ! bit.ly/1WEugw9

 


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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

Not every wife is entitled to maintenance irrespective of other factors!!!!

Not every wife is entitled to maintenance irrespective of other factors!!!!

It is not every indigent wife that is so entitled to maintenance.

=======================================================

Kerala High Court

Mammad Kunhi vs Rukhiya on 25 May, 1978

Equivalent citations: 1978 CriLJ 1645

Author: P S Poti

Bench: P S Poti

ORDER

P. Subramonian Poti, J.

  1. The petitioner married the respondent Rukhiya in the year 1971 and they lived together thereafter as husband and wife. After living at the husband’s place for some time, the wife left for her tarward house where her Karanavan one Moidu was also living. It appears that for some period during that time the petitioner also lived in that house with his wife. In or about 1974 there seems to have arisen some misunderstanding between the petitioner and the Karanavan of the respondent, According to the petitioner, that concerned the failure of the Karanavan to make available a house specifically put up for the petitioner and his wife partly, with funds advanced by the petitioner. It is further his case that due to the unpleasantness that arose on this account the petitioner could not continue to stay with his wife at the tarwad house and so he left it. It was then that a notice was issued to him on behalf of his wife claiming maintenance for her as well as a child who had been born in the marriage. The petitioner replied to it by Ext. P1 dated 11-10-74. In that he mentioned the circumstances under which he had to cease living with the respondent at her tarwad house and he further mentioned therein that he desired to live a proper married life if that was possible. He also mentioned in his reply that it was only a month earlier that he ceased to live with the respondent and for her expenses of that month he had sent a money order. He expressed his desire that proceedings contemplated by the notice must be avoided in the interest of the parties. Nevertheless the petition for maintenance was filed by the wife. This was contested by the husband. The contest survives here only regarding the maintenance allowed to the wife and not that awarded to the child. He refuted the liability to maintain his wife because, according to him, his wife, whom he wanted to take to his house so that she may live with him, was refusing to comply with his request to go over to his house. The learned trial Magistrate who enquired into this question found that on the evidence of the petitioner and the counter petitioner it had to be found that the relationship between the husband and the karanavan of the wife was strained, and in the circumstances it may not be possible for the respondent to reside with the wife in her house. He further found that there was no reasonable ground for the wife to refuse to live with the husband. In this view maintenance was denied to her. It was against this that the wife took the matter in revision before the Sessions Judge, Telli-cherry. The learned Judge found that the offer to maintain the wife in his house was made by the husband only in answer to the petition, that it was belated and hence it was not bona fide. In this view he directed the husband to pay a sum of Rs. 70 per mensem to the wife besides a sum of Rs. 50 directed to be paid on account of the child. The petitioner has resorted to this Court complaining that the learned Sessions Judge ought not to have held in revision that the petitioner was liable to pay maintenance to his wife despite his offer to maintain her in his house. It is particularly urged in the revision before this Court that the wife has not indicated at any time any ground which may justify her conduct in living away from her husband, and in the absence of a finding on the availability of such a ground the learned Sessions Judge was not right in directing payment of maintenance by the petitioner.

2. The facts of the case as it has come out in evidence indicate beyond any doubt that there is no case of mis-conduct on the part of the husband in regard to his wife. It is not as if the husband was inconsiderate towards his wife or that living with him at his house would in any way be harmful to the mind or body of the petitioner. There is no case of ill-treatment at any time by the husband or want of affection which a wife could normally expect from her husband. On the other hand it appears that the wife wanted to live in her own tarwad house and wanted to have the husband also there. According to her she lived only for a few days with her husband in his house and thereafter went to her tarwad house. It was not suggested that this was for any specific reason. It was only a matter of her personal preference or choice. Evidently the husband was accommodating enough to adjust himself to residence with his wife at her tarwad house. Strained relationship between the petitioner and the karanavan developed, as a consequence of which he moved out of the house. This was followed by a notice calling upon the petitioner to pay maintenance for the wife and the child. The petitioner refuted this liability and indicated the circumstances under which he had to move out of the house where he had been living with his wife. Though this reply has been received on account of the wife she has evidently not come to know of the contents of the reply. Probably it was not brought to her notice by the karanavan. That is what she swears. She has come to court claiming maintenance. The petitioner seeks to meet the claim by the plea that he was prepared to take her with him and therefore she should live with him. The Sessions Judge took the view that the offer to maintain the wife at the husband’s home was belated and therefore not bona fide. This, it is said, is not in accordance with law. That is what calls for consideration in this revision.

  1. Section 125 (1) of the Code of Criminal Procedure confers the right to any wife unable to maintain herself to claim maintenance from her husband if he has sufficient means but neglects or refuses to maintain her. It is not as if every wife is entitled to maintenance irrespective of other factors. It is not every indigent wife that is so entitled to maintenance. Apart from showing that the husband has sufficient means it must further be shown that he neglects or refuses to maintain his wife. If a person is willing to maintain his wife in accordance with his civil obligation, there is neither neglect nor refusal. Therefore the question whether the wife is justified in refusing to live with the husband is not a question independent of Section 125 (1) of the Code of Criminal Procedure. Even in deciding the question of liability of the husband to maintain his wife the court would be called upon to decide one way or other as to whether there was neglect or refusal on his part. If a person is bound only to maintain his wife properly in his own home and that he is ready to do but the wife refuses to live there with him it cannot be said that there is neglect to maintain the wife or there is refusal. Normally a husband who provides a congenial matrimonial home to his wife is under no further obligation to pay maintenance if she, notwithstanding that he has a home where she could live a pleasant life discharging her obligations as wife wants to be in her own home, where she expects the husband to join her company. I am attempting to indicate that where a wife is unreasonably refusing to live with! her husband who is prepared to provide her with a matrimonial home that is a matter which must go into reckoning in passing an order under Section 125 (1).
  2. When an order for maintenance is passed the allowance directed to be paid must be paid in accordance with the order by the person who is so directed. There must necessarily be a sanction on non-compliance. That is provided in Sub-section (3) of Section 125. This execution is in the manner indicated in that sub-section. There are two provisos under that subsection and the 2nd proviso is relevant in this context. That reads:

| 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.

The sub-section enables the husband to make an offer to maintain his wife even when execution in accordance with the order of the Magistrate is taken out and that would be an answer for the claim. Evidently that would operate only prospectively in regard to the obligation to maintain. But the provision indicates that an offer to maintain must be assumed as relevant in disposing of a petition for maintenance, That of course must be so for where there is a proper and reasonable genuine offer to maintain a plea of refusal or neglect cannot hold good. Whether the offer is bona fide is another question. But the offer cannot be said to be belated because it is made in answer to a petition. Merely because it is so made in answer to a petition it cannot be said to be wanting in bona fides.

  1. An offer to maintain may sometimes be not genuine or good and if, the circumstances under which it is made indicate that it is only a colourable offer just to meet the legal action instituted by the wife it would not be an answer. Several factors may have relevance in the determination of the question whether such offer is bona fide or not. If a person who had been ill-treating his wife as a consequence of which she had to live apart offers to take back his wife to his home when threatened with action, the court may examine the circumstances closely to determine whether the offer is genuine or bona fide. There may be other similar circumstances to which I need not make any particular reference here. Suffice to say that in a case such as that one before me where the parties have been living happily together ever since the marriage but were living separate for some time (for one month before the notice according to the husband and 1 year and 2 months according to the wife) and that is suggested to be due to the conduct of a third party residing along with the wife and husband in the wife’s home where the husband also was living and further, there are no other circumstances of relevance one would wonder how i1 could be said that there is any want of good faith in the conduct of the husband in offering to maintain the wife at his home. That is an offer that he could properly make in the circumstances of the case. The fact that he did not make an earlier offer would not derrogate from the earnestness of his offer. It does not suggest in any way that the offer is sham. The relevant question in such a case is why the wife is refusing to live with her husband despite his offer. It is for her to explain her reasons. Want of bona fides in the husband’s offer has necessarily to be judged in the background of the justification pleaded by the wife for her refusal to live with him and not divorced of it. Absence of any imputation of misconduct on the part of the husband is relevant. The wife when in the box was asked whether she would live with her husband. She shows no justification for refusing to live with him except one and that is that by convention and usage in the area wives are entitled to call upon their husbands to live in their houses, the validity of which plea, I will consider hereafter. For the time being suffice to state that I am not impressed with the plea. If that is the only excuse the wife has, and if that is the only reason for not living with the husband I find that she has no justification for her refusal. Things may be different where the plea is that the matrimonial home offered by the husband is not a congenial home or that there would be third party interference to domestic peace.

6. Is the refusal of a wife to live with the husband in his house legitimate even if there is a case that it is the practice in the locality for the husband to live in the wife’s home? There is no law that I know of obliging the husband to be a resident at the family home of the wife nor is any practice or convention shown assuming that this would make any difference. May be that in Muslim tarwads husbands may choose to live with their wives at the tarwad house whenever it is convenient. That only means that it is open to him to do so and does not oblige him to live at the tarwad house of his wife if he wants the company of the wife and that otherwise he will be forfeiting the conjugal company of his wife. If there is obligation to maintain one’s wife the husband may choose his home and it is at that home that the wife has to live unless there are specific and valid reasons why that may not be practicable in any given instance. There is an obligation on the part of the wife to give her attention to the husband and if she does not feel inclined to discharge such obligation the husband is not without any remedy. The law enables a husband to seek the assistance of an order for restitution of conjugal rights, where he is aggrieved by the conduct of a wife refusing to live with her husband on the plea that she wishes to remain at her tarwad house where the husband, if he so desires may visit her or stay with her and have her company. It goes without saying therefore that it is not a justifiable reason for the wife to contend that the husband may live in her family house.

  1. On the above facts it appears to be clear beyond doubt that in this case the husband cannot be called upon to pay maintenance to his wife for he has neither neglected nor refused to maintain his wife. He is willing to maintain his wife as law obliges him by providing a house where she would get all attentions and affections which normally a wife could expect from her husband. Merely because the petitioner made his offer to take her to his home only in the reply statement such offer would not militate against the good faith particularly in the background of the case indicated in this judgment.
  • Before I close I think I should advert to Section 125 (4) of the Code of Criminal Procedure, for, my attention has been drawn to a decision of my learned brother(?) (Colleague) Janaki Amma J. in a case where there was a claim for maintenance by a wife and the question of applicability of Section 125 (4) of the Cr. P.C. was considered by the learned Judge. Section 125 (4) reads thus:

  • | Section 125 (4) No wife shall be entitled to receive
    | an allowance 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.
    |
    | There are three circumstances under which the normal
    | obligation of the husband to maintain the wife will
    | stand negatived. That is by reason of the subsection.
    | These are : (a) where the wife is living in adultery,
    | (b) where the wife and husband are living separately
    | by mutual consent and (c) where the wife refuses to
    | live with her husband without sufficient reason. It
    | goes without saying that if the husband sets up any of
    | these as answer to the claim of the wife it is for him
    | to prove. That the wife is living in adultery is a
    | matter necessarily to be proved by the husband. That
    | the parties are living separately by mutual consent is
    | also to be proved by the husband if he wants to meet
    | the claim for maintenance on that plea. Similarly it
    | is also to be proved that the wife refuses to live
    | with him. ‘Refusal’ is not shown by the proof of the
    | fact of not living with the husband. It is not
    | sufficient to show that the wife is not living with
    | him. The refusal can be proved only by the husband
    | indicating that he is willing to allow the wife to
    | live with him, that he is ready to take her to his
    | home for residence with him, but nevertheless she is
    | not willing. There may be cases where the wife is not
    | living with the husband because she has been driven
    | out of his house. The burden that the wife is
    | ‘refusing’ to live with him is to be discharged by the
    | husband. But when once that is proved I would assume
    | that it is for the wife to show that there are reasons
    | for her living apart from the husband. One of the
    | grounds for denying maintenance, as already indicated,
    | is refusal to live with the husband without any
    | sufficient reason and the burden on the husband to
    | prove this would be discharged by showing that there
    | is refusal by the wife to live with him. The existence
    | of a reason cannot be anticipated by the husband and
    | he cannot be expected to prove that such reason does
    | not exist. One can imagine a number of reasons for a
    | wife refusing to live with the husband. It may be that
    | the wife does not consider the husband sufficiently
    | healthy, sufficiently fair, that the house in which
    | she is asked to live is not good enough for her, that
    | she does not like the surroundings, the home is not
    | congenial, she does not like the presence of the
    | proverbial mother-in-law, that she objects to the pets
    | brought up in the same house and the like. But how can
    | any husband anticipate the reason the wife may
    | possibly have and answer it by showing that such
    | circumstance does not exist. The burden of proof of
    | showing the Justifiable reason must in such
    | circumstances rest not on the husband. If the wife
    | alleges any reason it is such reason that may have to
    | be examined. For instance in this case until the wife
    | indicated her mind that the reason for not living with
    | the husband was that the people in the locality
    | usually lives with the wives in their wives’ house one
    | would not have known of that reason. Once that is
    | disclosed whether that is a justifiable reason is easy
    | of determination.

    1. In the decision in Sarada v. Kumaran 1977 Ker LT 942 : 1978 Cri LJ NOC 215 Janaki Amma J. has said:

    | Evidently Section 125 (4) is an exception to the
    | general liability to maintain referred to in Section
    | 125 (1). He who claims exemption from liability has to
    | prove the existence of circumstances which entitle him
    | to put forward such a claim. Viewed in the above light
    | it is for the respondent to prove that there has been
    | an improper refusal on the part of the petitioner to
    | live with him.

    I understand the learned Judge to say that the burden of proving the refusal on the part of the wife to be on the husband and I do not think that the learned Judge further indicated the view that the husband should anticipate the reasons which the wife may have for not living with him and answer that too. Anyhow, it is not necessary to go into this question further for in any view of the case on the facts and circumstances here an improper refusal on the part of the wife to live with the husband has been proved. Hence the question of burden of proof is academic in this case.

    1. In the result the revision petition is allowed. The order of the learned District and Sessions Judge is vacated and the order of the Chief Judicial Magistrate restored. Allowed as above. No costs.

    source
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