Saturday, 20 February 2016

Whether In laws of woman are liable to pay maintenance to her if her husband is not traceable?

From the principles enunciated in the above referred
decisions, it is apparent that any right which the wife has
during the subsistence of her marriage and during the lifetime
of her husband is against the husband and she has no right to
claim any relief against the father-in-law or sister-in-law or any

of the relatives of her husband inasmuch as the obligation to
maintain her lies only on her husband.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3993 of 2014

ABDULRAHIM ABDULMIYA PIRZADA & 1.
Versus
STATE OF GUJARAT & 2...

CORAM:  MR.JUSTICE J.B.PARDIWALA
 Date : 21/01/2016



RULE returnable forthwith. Mr.Shah, the learned APP
waives service of notice of rule for and on behalf of the
respondent no.1 - State of Gujarat. Mr.Jasani, the learned
advocate waives service of notice of rule for and on behalf of
the respondent no.2 - wife. None is present on behalf of the
respondent no.3 - husband.
By this application under Article 227 of the Constitution of
India, the applicants have prayed for the following reliefs :
“(a) Your Lordships may be pleased to issue appropriate
writ, order or direction, quashing and setting aside the
order dated 31.5.2014 passed in Criminal Appeal No.193
of 2013.

(b) During pendency of admission and final disposal of
the present petition, Your Lordships may be pleased to
stay implementation, operation and execution of order
dated 31.5.2014 passed in Criminal Appeal No.193 of
2013.
(c) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances
of the present case.”
It appears from the materials on record that the applicant
is the brother-in-law of the respondent no.2 and the applicant
no.2 is the mother-in-law of the respondent no.2. The
respondent no.3 is the husband of the respondent no.2. As
such, the husband should have been one of the applicants.
But, it appears that as the whereabouts are not known,
therefore, he has been impleaded as one of the respondents.
The respondent no.2 has initiated proceedings by way of
a complaint under the provisions of the Protection of Women
from Domestic Violence Act, 2005. On account of matrimonial
dispute the wife left the matrimonial home and is residing at
her parental home as on today. She prayed for maintenance.
It appears that the prayer for maintenance was declined
by the learned Additional Chief Metropolitan Magistrate, Court
No.12, Ahmedabad, vide order dated 24th June 2013. In such
circumstances, the wife preferred the Criminal Appeal No.193
of 2013 before the City Sessions Court, Ahmedabad. The
learned Additional Sessions Judge, Court No.18, City Sessions
Court, Ahmedabad, vide order dated 31st May 2014, allowed
the appeal and directed the applicants and the husband to pay
Rs.9,000=00 per month towards the maintenance of the wife
and the three minor children. Being dissatisfied with such

order passed by the learned Sessions Judge, the applicants
have come up with this application.
The short point for my consideration is, whether any
liability could be fastened on the brother-in-law and mother-inlaw
so far as payment of maintenance under the provisions of
the Act is concerned.
It goes without saying that the husband is liable to
maintain the wife and also to pay the maintenance. I do not
find any error or infirmity in the impugned order so far as the
liability of the husband to make good the payment of
maintenance is concerned. The issue as regards the liability of
mother-in-law and brother-in-law (i.e. the husband's brother) is
no longer res integra.
At this juncture, it may be germane to refer to certain
decisions of the Supreme Court. In the case of Vimlaben
Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, (2008)4
SCC 649, the Supreme Court has, after referring to the
provisions of Sections 3(b), 18 and 19 of the Hindu Adoptions
and Maintenance Act, 1956, observed that maintenance of a
married wife, during subsistence of marriage, is on the
husband. It is a personal obligation. The obligation to maintain
a daughter-in-law arises only when the husband has died. Such
an obligation can also be met from the properties of which the
husband is a co-sharer and not otherwise. The Court further
observed that Sections 18 and 19 of the said Act prescribe the
statutory liabilities in regard to maintenance of wife by her
husband, and only on his death, upon the father-in-law.
Mother-in-law, thus, cannot be fastened with any legal liability

to maintain her daughter-in-law from her own property or
otherwise.
In the case of S.R. Batra and another v. Taruna Batra
(Smt.), (2007)3 SCC 169, the Supreme Court has expressed
the opinion that the rights which may be available under any
law can only be as against the husband and not against the
father-in-law or mother-in-law. In the facts of the said case, the
Court observed that the house in question belonged to the
mother-in-law of Smt.Taruna Batra and did not belong to her
husband Amit Batra, hence Smt.Taruna Batra cannot claim any
right to live in the said house. The Court was further of the
view that the house in question could not be said to be a
'shared household' within the meaning of Section 2(s) of the
Protection of Women from Domestic Violence Act, 2005. It was
contended before the Supreme Court that a 'shared household'
includes a household where the person aggrieved lives or has
at any stage lived in a domestic relationship. The court did not
agree with the said submission and was of the opinion that the
wife is only entitled to claim a right to residence in a shared
household, and a shared household would only mean the
house belonging to or taken on rent by the husband, or the
house which belongs to the joint family of which the husband is
a member.
From the principles enunciated in the above referred
decisions, it is apparent that any right which the wife has
during the subsistence of her marriage and during the lifetime
of her husband is against the husband and she has no right to
claim any relief against the father-in-law or sister-in-law or any

of the relatives of her husband inasmuch as the obligation to
maintain her lies only on her husband.
The complaint in question, therefore, appears to have
been filed with the malafide intention to wreak vengeance for
the purpose of settling personal scores and would fall within
the ambit of Illustration (7) of the Illustrations delineated by
the Supreme Court in the celebrated case of State of Haryana
and others v. Bhajan Lal and others, AIR 1992 SC 604, viz. that
the proceeding is manifestly attended with malafide and/or
where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.
For the aforesaid reasons, this application is allowed. The
impugned order is hereby ordered to be quashed so far as the
applicants are concerned.
It is clarified that it will be open for the respondent no.2
wife to proceed further against the husband, in accordance
with law, so far as the husband's liabilities are concerned
under the provisions of the Act.
Rule made absolute. Direct service is permitted.
Mr.Jasani submits that during the pendency of this
petition, there has been a fraudulent transfer of the house by
the husband in favour of the applicant no.1 i.e. his own
brother.
It could be a case of fraudulent transfer, and for that, it is
always open for the wife to take appropriate proceedings in that

regard.
(J.B.PARDIWALA, J.)

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