Tag Archives: sec 125 CrPC

No immediate arrest for #NON-#payment of #Sec125 #Maintenance

classic case where the Patna HC orders that non payment of maintenance cannot lead to immediate / direct arrest and that due process is to be followed

 

MONEY.jpg

 

Patna High court : No Arrest on Non Payment of Maintanence

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.563 of 2016

Md. Barik, S/o- Late Md. Haroon, Resident ofVillage- East Gharari, P.O.-Kharik Bazar, P.S.- Kharik (Naugachia), District-Bhagalpur….. …. Petitioner

Versus

1. The State of Bihar through Chief Secretary, Bihar, Patna.

2. Bibi Akila Bano, W/o- Md. Barik, D/o- Md. Niyamat,

3. Rubi Khatoon (minor)

4. Ruhi Khatoon (minor)

Respondent No.3 and 4 are minors and represented through their mother and natural guardian Respondent No.-2

Respondent No.2 to 4 are residing at Village- Ujani, P.O.- Maniya More, P.S.- Naugachia, District- Bhagalpur….. …. Respondents

Appearance :For the Petitioner : Mrs. Sarita Bajaj, Advocate

For the Respondent no.1 : Mr. Ashok Priyadarshi(GA-4)

CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGHORAL

ORDER2

02-06-2016

Heard learned counsel for the petitioner and learned counsel for the State.

It is indeed a matter of great regret that in spite of the decision of the Division Bench of this court, in the case of Laljee Yadav Vs. the State of Bihar, since reported in 2011 (4)PLJR 248, the learned In-charge Principal Judge, Family Court, Bhagalpur, has not followed the procedure as laid down in law and violated the petitioner’s fundamental right by wrongly ordering his confinement, on failure to pay maintenance as awarded under section 125 of the Cr.P.C. in Miscellaneous Maintenance Case No. 62 of 2008 by the Court of Principal Judge, FamilyCourt, Bhagalpur, a Miscellaneous Execution Case was registered and in that miscellaneous Execution case, the learned Judge issued warrant of arrest and detention of the petitioner having defaulted to pay maintenance.

This Court in the judgment aforesaid (Laljee Yadav) had elaborately dealt with entire procedure inasmuch as this court held that no person can be arrested by orders of the court. First upon default in payment of maintenance, asawarded in terms of section 125 Cr.P.C, it could only be recovered in the process as prescribed for recovery of fine, which wouldultimately be sent to the Collector for recovery of arrears of Rent Revenue in a proceeding under the Bihar and Orissa Public Demand Recovery Act, 1914.

The Court also noticed specific provisions of the Code of Criminal Procedure, which prohibited the arrest of a person. Form -18 (not Form- 15) as being used by the Principal Judge, Family Court, Bhagalpur as appended to Cr.P.C. is in respect of a person, who has been found guilty and convicted for default in payment of maintenance, which conviction has to be upon a fresh complaint for every arrears.

All these have been noted in the judgment of the Division Bench, as aforesaid.Regrettably, the learned Judge in spite of protest by the petitioner pay to take note thereof. It would be well advised for the Judge to acquaint himself with law before taking such drastic actions. The situation being what it is clear that in defiance of law,the petitioner has been detained. Thus, the detention of the petitioner being per se illegal and without jurisdiction. It would be violated of its constitutional rights under Article 21 of the Constitution.

The order issuing warrant and detaining the petitioner as passed by the Principal Judge, Family Court, Bhagalpur, is thus, set aside.

The petitioner is directed to be released from civil prison forthwith, unless he is required in any other criminal case.Let a copy of this order be communicated tothe Principal Judge, Family Court Bhagalpur, for information and necessary action

This writ petition is accordingly allowed.
(Navaniti Prasad Singh, J.)

 

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wife’s #Sec125 #maintenance #dismissed for wrong jurisdiction; #MadrasHC ; K.#Mohan vs #Balakanta #Lakshmi

Educated couple start matrimonial litigation. Since both were residing at Bangalore, before separation, Husband files for divorce at Bangalore. Wife leaves husband, comes to Ambattur, which is outside Madras Metropolitan limits (in 1982 / 83) and files for maintenance under CrPC Sec 125 at Madras court. Husband assails jurisdiction. Husband proves with evidence that wife is outside Madras (and is residing under the jurisdiction of nearby Chengalpattu courts) Madras HC analyses “Domicile” and “jurisdiction”, verifies the facts and dismisses wife’s case, asking her to file at appropriate jurisdiction !!

While such technical victories may be short-lived, these are important to frustrate errant women filing usurious maintenance cases


Madras High Court

K. Mohan vs Balakanta Lakshmi on 13 December, 1982

Equivalent citations: 1983 CriLJ 1316

Author: R Pandian

Bench: R Pandian

ORDER Ratnavel Pandian, J.

..1. This revision is directed against the preliminary order made’ in M. C. 806 of 1980 on the file of the II Metropolitan Magistrate, Edmore, Madras, rejecting the contention of the revision petitioner (respondent in M. C. 806 of 1980 — husband) that the Court below did not have the territorial jurisdiction to entertain an application under Section 125, Cr. P.C. filed by the respondent herein (wife).

..2. It is a very unfortunate case wherein the highly educated couple are perpetually fighting with each other obviously for the reason, that they are not able to get on together amicably. It is seen from the records that after the marriage, both the parties resided at Bangalore and that the revision petitioner filed an original petition for annulment of the marriage before the Principal Civil Judge, Bangalore city. Be that as it may, the respondent had left Bangalore and thereafter had filed an application under Section 125 Cr. P.C. before the Second Metropolitan Magistrate, Edmore, Madras, claiming maintenance from the revision petitioner. In that petition she has stated in the preamble that she is now residing at Madras. The respondent, on receipt of the notice from the Court of the Second Metropolitan Magistrate, Madras, had filed a counter denying the allegations and raising a preliminary objection, stating that the said Court had no territorial jurisdiction to entertain this application under Section 125 Cr. P.C. on the ground that the respondent is not residing within its jurisdiction, viz. in the Madras City, but on the other hand is permanently residing with her parents at Ambattur within the jurisdiction of the Chengalpattu district and therefore the application ought to have been presented before the Court concerned in Chengalpattu district having jurisdiction over Ambattur area. To substantiate his preliminary objection, the petitioner has filed a number of documents marked as Exs. R-l to R-5. No oral evidence was let in by either of the parties. The learned Magistrate, observing that the term ‘resides’ occurring in Section 125 (1) (b) of the Cr. P.C. should be liberally construed, held, on the sole basis of the averment in the preamble of the petition that the respondent is residing at Madras, that he has got the territorial jurisdiction to entertain that application and the preliminary objection raised by the petitioner with regard to the jurisdiction is to be overruled. It is as against this order, the present revision is preferred.

..3. Though the respondent has received the summons, she is neither appearing in person nor appearing through any counsel. Therefore this Court has appointed Mr. A. Sasidharan, as amicus curiae to appear on behalf of the respondent and to assist this Court.

..4. This revision raises the question as to the true construction of the term ‘resides’ appearing in Section 126 (1) (b) of the Criminal P.C. Leaving apart the question about the respondent’s entitlement for maintenance, we have to determine in this case the question about the territorial jurisdiction of the Court at Madras to entertain this application filed under Section 125 Cr. P.C. because the jurisdiction of the Court is to be determined by the residence of the parties. The answer to this question turns upon the interpretation of Causes (a) to (c) of Section 126 (1) of the Code which demarcate the jurisdictional limits of a Court to entertain a petition under Section 125. I shall presently give the present and, the corresponding past provisions of the Code in the following table so that one can easily understand the position of law that stood earlier and the present position consequent upon the amendment made in the present Code.

 

Sec. 488 (8) of the Criminal   Section 126 (1) of the Criminal
Procedure Code, 1898        Procedure Code, 1973
Proceedings under this Proceedings ‘under Section 125 may be
section may be taken taken against any person in any
against any person district
in any  district (a) where he is, or
where he resides or is, (b) where he or his wife resides, or
or where he last resided (c) where he last resided with his
with his wife, or, as the case may be the wifeor as the case
mother of illegitimate child. case may be, the
mother of illegitimate child.

On a plain reading of Section 488 (8) of the old Code, it can be seen that the place where the wife resided after desertion by her husband was not material. This caused great hardship to wives. who after desertion were living far away from the place where they and their husbands last resided together. So, in order to remove such hardships, on the recommendation made by the Law Commission, the present Section 126 (1) (b) was enacted by introducing the expression ‘or his wife’ between the words ‘he’ and, ‘resides’, so that the venue of the proceedings should also include the place where the deserted or neglected wife may be residing on the date of the application. In the present revision, the crucial word ‘resides’ occurring in Section 126 (1) (b) alone comes up for interpretation. Under the old Code, the Magistrate of the district where the husband or father, as the case may be, resided, only had the jurisdiction. Now the jurisdiction is enlarged or widened. 5. 126 (1) gives three alternative forums as enumerated, in Clauses (a) to (c) there under. These alternative forums are designedly given by the Parliament so as to enable a discarded wife or helpless child to get the much-needed and, urgent relief in one or the other of the three forums that is convenient to them. Needless to say that the proceeding under Section 125 is in the nature of a civil proceeding and the remedy is a summary one, as laid down in Sub-section (2) of Section 126, and the person seeking the remedy, as pointed out above, is ordinarily a helpless person. The introduction of the expression in Section 126 (1) (b) is ‘or his wife.’

..5. So, the word ‘resides’ should be undoubtedly liberally construed, but at the same time, without doing any violence to the language and without defeating the very object of this provision.

..6. The word ‘resides’ has been subject to conflicting judicial opinions. In the Oxford Dictionary it is defined as ‘….to live permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place.’

..7. The Corpus Juris Secundum, Vol. LXXVII at page 285 states that the word ‘reside’ is employed in a wide variety of significations, that its meaning may differ according to the connection in which it is used, that the particular signification of the term in any given instance depends on the context and the purpose under consideration and that it should be interpreted in the light of the object or purpose of its use. It is. further noted therein as follows:– It has been said that the word, ‘reside’ has two distinct meanings, and that it may be employed in two senses, and in what is sometimes referred to as the strict legal, or technical sense, it means legal domicile as. distinguished from mere residence or. place of actual abode. In this sense the word ‘reside’ means legal residence; legal domicile, or the home of a person in contemplation of law, the place where a person is deemed in law to live, which may not always be the place of his actual dwelling and thus the term may mean something different from, being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word,’reside’,.includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.

..8. Again, at page 288, it is noted thus: Reside’ has been held equivalent to, or synonymous with, ‘abide’, ‘dwell; ‘to have one’s home’, ‘live’, ‘lodge?, ‘remain’, ‘residence’, ‘sojourn’, and ‘stay’ ‘Reside’ is said to be. usually classed as synonymous, with ‘inhabit’; but not., in strictness, properly so.

..9. In the Words and Phrases, Per manent Edn. Volume 37, at page 308 it is defined thus; To ‘reside’ in ordinary acceptation, means to dwell, or to live…’Reside’ means live, dwell, abide, sojurn, stay, remain, lodge.

..10. The above lexicographical meaning of the word, therefore, takes in both the permanent dwelling and the tern porary living in a place and it is therefore capable of different meanings including ‘domicile’ in the strictest and the most technical sense and a temporary residence in the liberal sense. Whatever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in or a flying visit to a particular place. In short, the meaning of the word would in the ultimate analysis depend upon the context and the purpose of the particular statute..

..11. In this case, the context and the purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would, be better served if the word ‘resides’ is understood to include temporary residence. For example, if a person goes from his permanent place ‘A’ to another place ‘B’ either for carrying out certain work or as an invitee or as a tourist and resides or stays there for one or two days, he cannot be said to be residing at ‘B’ in the legal sense. But it he goes to the place ‘B’ and stay there for some length of time, though not permanently, but for the purpose of either educating his children or carrying on a business for a considerable length of time, he resides at ‘B’. One cannot give exhaustive illustrations to explain what the term ‘resides’ means. j But, its meaning has to depend upon the circumstances of each case. The main criteria in determining what the term ‘reside’ means, is the intention or the animus manendi of the person residing in a particular place, and the, cognate expression includes both temporary and permanent residence. But, the expression ‘resides’ used in Section 126 (b) of the new Code will not include a casual or flying visit or a brief, stay. On the other, hand, it implies more than that..

..12. Mr. V. Gopinathan drew the attention of this Court to decisions of the various High Courts and ultimately to the decision of the Supreme Court, all defining the term ‘reside’.

..13. The Full Bench of the. Allahabad High Court, in Arthur Flowers v. Minnie Flowers (1910) ILR 32 All 203, has held, while interpreting the expression ‘resides’ occurring in Section 3 of the Indian Divorce Act, that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in.that place within the meaning of. the expression, so as to give jurisdiction under, the Act to the Court within the local limits of whose jurisdiction such a place is situate.

..14. In Charan Das v. Surasti Bai AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was held that the sole test on the question of residence was whether a party had the animus manendi or an intention to stay for a definite,period at one place and if he had such an intention, then alone could he be said to reside there.

..15. In Balakrishna v. Mrs. B. Sakun-lala Bai AIR 194-2 Mad 666 : 194-2 Mad WN Cri 73, it has been pointed, out that the word ‘resides in Section 488 (8) Cr. P.- C. implies the mere intention to rer maJn ata place and not merely to pay it a casual visit intending shortly, to move on to ones permanent residence.

..16. This Court has in Sampoornam v. N. Sundaresan , obseryed as follows at p, 275 of Cri LJ:– In short, Sub-section (8)of Section 488 Cr. P.C. does not necessarily refer to a permanent residence and it refers also to temporary residence, and the word ‘residence’ implies something more than a brief visit but not such a continuity as to amount to domicile. Each case, has to be dealt with on its merits as has been pointed out in Ganga Bai v. Pamanmal AIR 1938 Sind 223 1939-40 : Cri: LJ 117, bearing in mind that the section should not be so strictly cont, strued as to deprive the woman, who often in these cases is helpless, of assistance from the Court/which is most easily accessible to her. The Supreme Court in Jagir Kaur v. Jaswant Singh , after having referred to the meaning of the term ‘resides’ as defined lexicographically and as inter-: preted by the various High Courts, has observed as follows (at p. 415 of Cri LJ):- The decisions on the. subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that ‘resides’ in the sub-section means only’ domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a (lying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used; and the construction placed by decided cases thereon, we would define the word ‘resides’ thus. :,a person resides in a place if, he through choice makes it his abode permanently or even temporarily,; whether a person has chosen to make: a particular place his abode depends upon the facts,of each case.

..17. Therefore, it is clear that the exprecession ‘resides’ occurring in Section 126(1) (b) has to be given a liberal construe ion and the legislature could not have intended to use the said term in the technical sense of ‘domicile’ and it ‘has to be Understood to include a temporary residence also.

..18. Now, let us examine the facts of the present case, giving the word ‘resides’ the liberal interpretation as pointed put in the., above decisions.

..19. Mr. Gopinathan drew the attention of this Court to Exs. R. 1 toR 5,marked in this case and contended that the petitioner herein has unambiguously proved that the respondent is residing in Ambattur. In Ex. R-l, the postal acknowledgment containing the signature of the respondent dated 20-7-1979, her address read,s thus : “Mrs. K. Bala Kanaka Lakshmi, Laxmi Nivasl, No. 5, Kanniah Chetti St. Venkatapurarn, Ambattur P. O., Madras-53”. Ex. R. 2 is the reply notice dated 15-10-1979, sent by the respondent herself to the petitioner’s Counsel. In that reply notice also, she has given the same address as in Ex. R. 1. Ex. R. 5 is yet another postal acknowledgment dated 9-8-1980, containing the signature of the respondent and therein also the respondent’s address is the same as in Ex. R. I-Thus, it is clear that all the correspondence and the communications addressed to the respondent at her address at Ambattur, Madras 53, were duly served on her. Above -all, she -herself has given her address in October 1979′.in Ex. R. 2, stating that she is residing at No. 2 Kanniah Chetti St. Venkatapuram, Ambattur, Madras 53.

..20. As against the above, documentary evidence, the Court below was inclined to base its conclusion holding that the respondent is residing at Madras, solely on the recital made in the preamble of the petition filed under Section 125 Cr. P.C. which reads thus: The petitioner/complainant Balakanaka Lakshmi, aged about 23 years, residing at Madras, solemnly affirm and state as follows. Barring this, there is nothing on record to show that the respondent is residing within the territorial jurisdiction of the Court below or at any rate in any part of the Madras Corporation limits. The respondent would be conspicuously silent about the actual place of her residence in her affidavit. Only if the respondent gives her- residential address, the petitioner would be able to refute it by producing evidence to the contrary. Her bald, and vague statement that she is residing at Madras, will not enable the Court to arrive at any definite conclusion that she is residing within the territorial jurisdiction of the Court. If really the respondent is residing in any part of the Madras City, she should have specifically given the door number and the names of the street and of the locality, so that the Court below could unmistakably take seisin, of the matter. On the other hand, she has not denied the statement in the counter that she is residing at Ambattur, Madras 53 (Madras 53 denotes the postal division). Ex. R. 5 dated 9-8-1980, reveals that the correspondence addres sed to her has been served on her at her Ambattur address, even after her petition for maintenance dated, 20-2-1980 has been filed before the Court below, and the respondent herself has given her Ambattur address in Ex. R-2 Moreover, it may be noted that the notice issued from this Court in this revision sent to the respondent through the II Metropolitan Magistrate, Egmore, Madras, has been served on the respondent only at her residence at Ambattur mentioned above. Therefore, I unhesitatingly hold that the respondent is even now residing only at Ambattur. For all the reasons stated above, I hold that the respondent is not residing within the territorial jurisdiction of the Court below, either temporarily or permanently, but she is proved to be ‘residing’ within the meaning of the said expression used in which area the Court within the Chingalpattu district alone will have the territorial. jurisdiction’.

..21. In the result, the.revision is allowed, the order passed by the II Metropolitan Magistrate is set aside and the objection raised by the petitioner with regard to the territorial jurisdiction is upheld. It is left to the respondent to present the petition before the appropriate and competent Court having jurisdiction over Ambattur.

#Family court #NOT #empowered to grant #maintenance unless sought

#Family court #NOT #empowered to grant #maintenance unless sought.

 

From the careful reading of the above said provisions, it is apparent that the court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the court suo motu considered the application under section 26 of the Domestic Violence Act thereby clearly denying an opportunity to non applicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

 

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR

BENCH : NAGPUR

CRIMINAL APPLICATION [APL] NO.664 OF 2011

Gautam s/o Jairam Gavai,

V

Sau. Ragini alleged w/o Gautam,Gavai,

CORAM : KUM. INDIRA JAIN, J.

DATED : JANUARY 20, 2017.

1] By these applications under Section 482 of the Code of Criminal Procedure, applicant has assailed the judgment and order of the Family Court, Akola in Petition No.E-82/2010 passed on 21.10.2011, order dated31.12.2014 passed by the Judicial Magistrate, First Class,Akola in Miscellaneous Criminal Case No.949/2010 and order dated 18.3.2015 passed by the Adhoc Additional Sessions Judge, Akola in Criminal Appeal No.11/2015.

2] Heard the learned counsel for the parties. Since common questions of facts and law arise in these two applications, they are disposed of by common judgment.

3] The facts giving rise to the applications may be stated, in brief, as under : Respondent no.1 claiming herself to be the wife of applicant, filed an application under Section 125 of the Code of Criminal Procedure before the Family Court, Akola. She pleaded that she was married to applicant Gautam Gawai on 11.5.1997. They have two sons Vaibhav and Nipun born out of the said wedlock. According to respondent Ragini, till Diwali 2009, they led happy married life. After Diwali-2009, quarrel between respondent and applicant started and applicant used to treat her as maid servant. He started harassing her and ultimately left the house, not to return forever. She made efforts to find out his whereabouts. She was not successful and so she informed about the same to the Superintendent of Police. According to respondent, both the children were studying in English Medium School. She was unable to maintain herself. She, therefore, claimed maintenance for herself and the children.

4] Applicant appeared in the proceedings and contested the same. He denied marriage between him and respondent Ragini. According to applicant, he was married to Suvarna on 9.5.1990. The couple were blessed with three children. Marriage between applicant and Suvarna still subsists. Further submission is that respondent is a legally wedded wife of one Shamrao Bhopaji Ambhore and her marriage was solemnized on 01.03.1995 under the provisions of the Special Marriage Act. He contended that on false grounds, application for maintenance came to be filed and prayed to reject the same.

5] On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Gawai. However, keeping in view the object of the provisions relating to maintenance, the learned Judge thought it appropriate to consider the prayer for maintenance under Section 26 of the Family Courts Act and awarded maintenance at the rate of Rs.1500/- per month to the applicant. It is this order which is the subject matter of Criminal Application No.664/2011.

6] In another proceeding, respondent presented an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (In short “Domestic Violence Act”) claiming relief of protection order, monetary relief and compensation. This application was presented almost on the same grounds on which an application under Section 125 of the Code of Criminal Procedure was filed by her. Considering the evidence, the learned Judicial Magistrate, First Class, partly allowed the application and granted maintenance at the rate of Rs.2000/- per month to the applicant under Section 20 of the Domestic Violence Act. The order was carried in appeal before the District Court, Akola. Applicant preferred an application seeking stay to the judgment and order passed in Misc. Criminal Case No.949/2010. Vide order dated 18.3.2015, the learned Adhoc Additional Sessions Judge, Akola allowed the application and stayed the impugned judgment, subject to condition of depositing 50% of the outstanding amount within one month from the date of order, with further condition that non-compliance of the same, would result into automatic end to the stay order. The order passed by the learned Judicial Magistrate, First Class and the order on Exh.5 passed by the learned Adhoc Additional Sessions Judge are the subject matter of Criminal Application No.229/2015.

7] Learned counsel Shri Dhande submits that marriage between applicant and respondent is in dispute. Family Court has categorically held that there was no legal marriage between applicant and respondent. He submits that respondent could not establish dissolution of marriage in accordance with the law and in such circumstances, respondent was not entitled for maintenance under Section 125 of the Code of Criminal Procedure.

8] Regarding protection under the Domestic Violence Act, learned counsel submitted that domestic relationship between applicant and respondent is not established and in the absence of proof of domestic relationship, respondent was not entitled to any protection under the provisions of the Domestic Violence Act. In support of the submissions, learned counsel placed reliance on the decisions of the Hon’ble Supreme Court in D. Velusamy .vs. D. Patchaiammal (2010 (10) SCC 469 and of this Court in the case of Shri Ambadas Gangadhar Shetye .vs. Malabai Ambadas Shetye and another (2013 BCI 535). Reliance is also placed on the judgment dated 27.1.2015 passed by this Court in Criminal Writ Petition No.773/2014.

9] Per contra, learned counsel for respondent strongly supports the order impugned in both the applications. It is submitted that strict proof of legal marriage is not required in the proceeding under Section 125 of the Code of Criminal Procedure and so far as the protection under the Domestic Violence Act is concerned, this is an admitted fact that for a long long years, applicant and respondent resided together and they have two children out of the said relationship. The learned counsel submits that in such a situation no interference is required in extra-ordinary jurisdiction and prays to reject the applications.

10] With the assistance of the learned counsel for the parties, this court has gone through the reasons recorded by the learned Judge of the Family Court, learned Judicial Magistrate, First Class and the learned Adhoc Additional Sessions Judge. Needless to state that to attract the provisions of Domestic Violence Act, applicant must not only to show existence of live-in-relationship with the nonapplicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry. A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2 (f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act. The cases referred by the learned counsel for applicant reiterate the well settled propositions of law in this regard.

11] In the case on hand, so far as the domestic relationship between applicant and respondent is concerned, applicant could not establish the same as required under Section 2 (f) of the Domestic Violence Act. Though she states that her previous marriage with Shamrao Ambhore was dissolved by a deed of dissolution, she could not prove the said deed of dissolution in accordance with the law. Once respondent admits her marriage with Shamrao Ambhore in the year 1995, it was for her to prove that after dissolution of the said marriage, she married to non-applicant or enter into domestic relationship with non-applicant. In the absence of proof regarding dissolution of first marriage of respondent Ragini, the courts below committed serious error in holding that she entered into domestic relationship with the non-applicant whose first marriage with Suvarna was also in existence on 11.5.1997.

12] As stated above, Family Court has held that Ragini was not the legally wedded wife of Gautam Gawai and proceeded to consider the application under Section 125 of the Code of Criminal Procedure under Section 26 of the Family Courts Act and awarded maintenance to her. The provisions of Section 26 of the Protection of Women from Domestic Violence Act, 2005 read thus -26. Relief in other suits and legal proceedings :- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. From the careful reading of the above said provisions, it is apparent that the court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the court suo motu considered the application under section 26 of the Domestic Violence Act thereby clearly deniying an opportunity to nonapplicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

13] So far as maintenance to minors is concerned, it can be seen from the municipal record that name of father of Vaibhav was initially shown as Sanjay and later on tried to be rectified as Gautam. Regarding Nipun, there is no convincing evidence to show that he was born to respondent from applicant. Exh.28 is considered as a letter by applicant to S.D.P.O. and reliance is placed on the admissions therein. On cursory look at Exh.28, it can be seen that on 1.1.2010, S.D.P.O. recorded statement of applicant in the course of enquiry. Applicant has not admitted the statement. In the absence of unequivocal admission on the part of applicant Gautam and for want of legal proof, reliance could not have been placed on contents of Exh.28 to fasten paternity of children on him.

14] In the above circumstances, this court finds that the case of the respondent is completely out of purview of the provisions of Section 125 of the Code of Criminal Procedure and the provisions of Domestic Violence Act. As impugned orders suffer from material legal infirmities, interference in extra-ordinary jurisdiction is warranted.

Hence, the following order.

(1) Criminal Application (APL) No.664/2011 is allowed The impugned order dated 21.10.2011 in Petition No.E.82/2010 passed by the Family Court, Akola is quashed and set aside. Rule is made absolute in the aforesaid terms. No order as to costs.

(2) Criminal Application (APL) No.229/2015 is allowed. Rule is made absolute in terms of prayer clauses (a)-(i), (ii) and (iii). No order as to costs.

(Kum. Indira Jain, J.)

 

Maintenance NOT to every wife ! Only to those who CAN’T maintain themselves !! All HC Gem !

Allahabad High Court

Manmohan Singh vs Smt. Mahindra Kaur on 25 March, 1976

Equivalent citations: 1976 CriLJ 1664

Author: B Katju

Bench: B Katju

ORDER

B.N. Katju, J.

1. This is an application under Section 482, Cr. P.C., 1973.

2. The opposite party filed an application under Section 125, Cr. P.C. 1973 against the applicant dated 6-5-1974 in the court of C. J. M., Dehradun. The applicant filed his written statement on 4-6-1974. Thereafter the statements of the opposite party and the applicant were recorded by the C. J. M., Dehradun on 23-11-1974 and 6-2-1975 respectively. The C. J. M., Dehradun by his order dated 3-8-1975 directed the applicant to pay Rs. 300 per month to the opposite party as maintenance allowance with effect from 7-5-1974. The applicant filed Criminal Revision No. 33 of 1974 against the aforesaid order which was allowed in part by the Sessions Judge, Dehradun by his order dated 2-9-1975 and the applicant was directed to pay Rs. 150 per month as maintenance allowance to the opposite party with effect from 7-5-1974. https://twitter.com/ATMwithDick?lang=en

3. Under Section 125(1)(a), Cr., P. C. 1973 maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband refuses to maintain her but can only be granted to a wife who is unable to maintain herself. It may be pointed out that this is a-departure from Section 488 of the Code of Criminal Procedure, 1898 wherein every wife, whether she was able or was not able to maintain herself, was entitled to maintenance if she was neglected or not maintained by her husband. As it was not alleged by the opposite party in her application under Section 125, Cr. P.C. 1973 and it was also not stated by her in her statement recorded by the C. J. M., Dehradun that she was unable to maintain herself and no finding has been recorded by the C. J, M., Dehradun or the Sessions Judge, Dehradun that the opposite party was unable to maintain herself, the order of the C. J. M., Dehradun dated 3-8-1975 and the order of the Sessions Judge, Dehradun dated 2-9-1975 are clearly illegal. https://twitter.com/ATMwithDick?lang=en

4. This application is accordingly allowed and the order of the C. J. M., Dehradun dated 3-8-1975 and the order of the Sessions Judge, Dehradun dated 2-9-1975 are set aside.

 

Aged Mother-in-law, with no income, entitled to claim maintenance from daughter-in-law. Bom HC

Equivalent Citation: 2009(111)BOMLR1831, 2010(1)Crimes1, 2009(4)MhLj665,MANU/MH/0180/2009

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 86 of 2007
Decided On: 06.03.2009

Appellants: Smt. Saroj W/o Govind Mukkawar
Vs.
Respondent: Smt. Chandrakalabai Polshetwar and The State of Maharashtra

Hon’ble Judges/Coram:
S.S. Shinde, J.

Criminal – Maintenance – Claim of – Entitlement of Mother-in-law – Section 20 of Hindu Adoptions and Maintenance Act, 1956 – Sections 125 and 125(1) of Code of Criminal Procedure, 1973 – Section 125 of Code of Civil Procedure, 1908 – Respondent No. 1 mother-in-law of present applicant – Applicant got job on compassionate grounds on death of her husband – Also received gratuity etc. – Neglected to maintain Respondent No. 1 – Application claiming maintenance filed by Respondent No. 1 – Application dismissed by learned J.M.F.C. on the ground that mother-in-law not entitled to claim maintenance from daughter-in-law under Section 125 Cr.PC – Revision filed by Respondent No. 1 allowed and applicant directed to pay Rs. 1,000/- per month as maintenance to Respondent No. 1 – Hence, present Revision application – Held, at the time of obtaining appointment on compassionate grounds present applicant gave undertaking to support Respondent No. 1 – Deceased only son of Respondent No. 1 – Respondent No. 1 aged person and has no source of income – Respondent No. 1 entitled to claim maintenance from present Applicant – Revision application dismissed

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

CRIMINAL REVISION APPLICATION NO.86 OF 2007.

Date of decision : 06th MARCH, 2009.

For approval and signature. THE HONOURABLE SHRI JUSTICE S.S. SHINDE.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

CRIMINAL REVISION APPLICATION NO.86 OF 2007.

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

Smt. Saroj w/o Govind Mukkawar, age 39 yrs., occu.service, r/o CIDCO, New Nanded, Dist. Nanded…………. APPLICANT.

VERSUS

  1. Smt. Chandrakalabai Polshetwar age 60 years, occu. nil, r/o CIDCO, New Nanded, Dist. Nanded.
  2. The State of Maharashtra…………. RESPONDENTS

=================================================================
Smt. S.G. Chincholkar, Advocate for applicant.
Shri B.N. Gadegaonkar, Advocate for Respondent No.1.

Shri N.H. Borade, Addl. P.P. for Respondent No.2.

CORAM: S.S. SHINDE, J.

RESERVED ON: 13.02.2009.

PRONOUNCED ON:06.03.2009.

JUDGMENT:

  1. This application is filed praying for quashing and setting aside the judgment and order dated 12.1.2007 passed by the Sessions Judge, Nanded in Criminal Revision Application No.139 of 2006 and restoration of the judgment and order dated 11.8.2005 passed by the J.M.F.C., 2nd Court Nanded in M.C.A. No.177/2004.
  2. The brief facts of the case are as under:. The present respondent no.1 filed Misc. Criminal Application No.177/2004 against the present applicant for maintenance under Section 125 of Cr.P.C. The present applicant is daughter-in-law of respondent no.1 herein. It is the case of the original applicant – respondent no.1 herein that she is widow of 65 years old. Her sole son died on 14.3.1995. Her daughter-in-law got employment in Zilla Parishad on compassionate ground after death of her sole son Venkatesh. The present applicant /petitioner is getting salary of Rs.10,000/- per month. Respondent no.1 herein is unable to maintain herself. The applicant, besides her monthly salary, has received a sum of Rs.1,56,000/- from Zilla Parishad towards gratuity etc. of her deceased husband and thereby she is able to pay separate maintenance. The applicant has driven the present respondent no.1 from her house and thereby refused to maintain her. Therefore, the original applicant -respondent no.1 herein claimed a sum of Rs.1500/-per month towards maintenance.

  3. The learned J.M.F.C. rejected the application of the respondent no.1 herein on the ground that the mother-in-law is not entitled to claim maintenance from her daughter-in-law and said provision does not exist under Section 125 of Cr.P.C.

  4. Being aggrieved, the present respondent no.1 filed criminal Revision Petition No.139 of 2006. The revisional Court framed necessary points for its determination and held that the respondent no.1 herein is entitled for maintenance under Section 125 of C.P.C. and directed the present applicant to pay Rs.1000/-per month the respondent no.1 herein.

  5. Being aggrieved by the said order, the present application is filed by the applicant.

  6. The learned Counsel for the applicant submitted that the application which was filed by respondent no.1 herein was not maintainable under Section 125(1) (d) of Cr.P.C. against the present applicant, who is daughter-in-law of the respondent no.1. The learned Counsel further invited my attention to the reported judgment of the Supreme Court in case of Kirtikant D. Vadodaria v. State of Gujarat and another [(1996) 4 SCC 479] and submitted that in the said judgment the Apex Court has held that the stepmother is not entitled for maintenance. The expression “mother” in section 125(1)(d) of Cr.P.C. means only real or natural mother and does not include stepmother. Stepmother is a distinct and separate entity and cannot be equated with the natural mother who has given birth to the child. The learned Counsel further submitted that the present applicant being daughter-in-law of respondent no.1, the revision application of respondent no.1 should not have been entertained by the revisional Court since it was rightly rejected by the J.M.F.C. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  7. The learned Counsel for respondent no.1 submitted that the son of the respondent no.1 namely Venkatesh, who was husband of the applicant, was working in a school run by Zilla Parishad, Nanded. On 14.3.1995 Venkatesh died and the present applicant received Rs.1,56,000/- towards gratuity etc. and also she got appointment on compassionate ground against service of Venkatesh. The applicant is earning Rs.10,000/- per month. He further submitted that at the time of obtaining said compassionate appointment, the applicant had given an undertaking that she will support the present respondent no.1 – mother-in-law. However, the applicant has not provided any financial assistance to the respondent no.1 and she is residing separately. He further submitted that both the Courts have given a finding that the present applicant is earning Rs.10,000/- per month and neglected to maintain the present respondent no.1. he further submitted that the J.M.F.C. has rejected the application of respondent no.1 only on the ground that the application filed by respondent no.1 against daugter-in-law is not maintainable under Section 125(1)(d) of the Cr.P.C.. He further submitted that the respondent no.1 is old lady, having no source of income, she is surviving on sympathy of her neighbours and is not capable to do any work and to earn her livelihood. He submitted that in the peculiar facts and circumstances of this case, this court may not interfere with the impugned judgment and order passed by the revisional court.

  8. Heard learned Counsel for the parties, perused the contents of the application, annexures thereto and the judgment of the Supreme Court in the case of Kirtikant D. Vadodaria (supra). I am of the considered view that the revision application deserves to be rejected.

  9. Firstly, the respondent no.1 is old lady having age of more than 65 years and the courts below has recorded the findings that she is not able to maintain herself, she has no source of income. It is pertinent to note that Venkatesh was the only son of respondent no.1 who died and the present applicant has been appointed on compassionate ground against service of Venkatesh in the Zilla Parishad, Nanded. It does not fit in the mouth of the applicant that respondent no.1 being her mother-in-law, is not entitled to claim maintenance under Section 125(1)(d) of Cr.P.C. Moreover, as rightly contended by the learned Counsel for respondent no.1 that at the time of obtaining the appointment on compassionate ground, the present applicant had given an undertaking that she will support the present respondent no.1. The deceased Venkatesh being the only son of respondent no.1 and the applicant had got the employment on compassionate ground and she is earning Rs.10,000/-per month, respondent no.1 is rightly held by the revisional Court as entitled to claim separate maintenance at the rate of Rs.1000/- per month from the present applicant.

  10. I have perused the judgment of the Hon’ble Supreme Court in the case of Kirtikant D. Vadodaria (supra). In the peculiar facts and circumstances of that case, the Apex Court came to the conclusion that surviving real and natural born sons who are well to do, the stepmother was not entitled to claim maintenance from stepson. In paragraph 15 of the said judgment, the Supreme Court, while dealing with the benevolent provision and ambit of section 125 of Cr.P.C., observed: “….. Consequently to achieve this object a childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her. The obligation of the son to maintain his father, who is unable to maintain himself, is unquestionable. When she claims maintenance from her natural born children, she does so in her status as their ‘mother’. Such an interpretation would be in accord with the explanation attached to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 because to exclude altogether the personal law applicable to the parties from consideration in matters of maintenance under Section 125 of the Code may not be wholly justified. However, no intention of legislature can be read in Section 125 of the code that even though a mother has her real and natural born son or sons and a husband capable of maintaining her, she could still proceed against her stepson to claim maintenance.”

  11. In that case, the stepmother preferred to claim maintenance only from stepson leaving out her natural born sons and husband who were well to do and, therefore,the Apex Court, in the facts of that case, held that the stepmother is not entitled to claim maintenance from her stepson.

  12. In the present case, it is admitted position that the applicant has secured the employment on the compassionate ground in place of Venkatesh who was the only son of the respondent no.1 and that too, by filing an undertaking that she will take care of respondent no.1. Apart from that, the fact that the respondent no.1 is an old aged person having age of more than 65 years and not able to maintain herself and has no source of livelihood, is not disputed by the applicant herein. The peculiar facts of this case warrants that respondent no.1 is entitled to get maintenance from the present applicant. The revisional Court has recorded the reasons in paragraph 11 and 12 of the judgment and I fully agree with the reasoning given by the revisional Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  13. In the facts and circumstances of the case, respondent no.1 is entitled for maintenance from the applicant. The learned Counsel for the applicant submitted that in pursuant to the order dated 19th April, 2007, the applicant has deposited some amount in the Court out of the amount which was received towards gratuity etc. The respondent no.1 is entitled to withdraw the said amount from the Court.. The revision application is rejected.

[S.S. SHINDE, J ]

PLK/


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