During the course of hearing, Mr. R.P. Garg, learned Counsel appearing for the respondents has stated that the respondent No. 2-Ms. Mohan Devi is now of marriageable age and it will not be possible for her mother i.e. respondent No. 1-Smt. Baikunthi Devi to incur any expenditure on account of her marriage since she is not in any gainful employment. Moreover, the responsibility for discharging marital obligations apart from the legal duties is always on husband-petitioner in such circumstances. It is accordingly directed that the husband-petitioner shall deposit a sum of Rs. 1 lakh by way of two FDRs in the sum of Rs. 50,000/- each to be deposited in any Nationalised Bank of District Bharatpur for performance of rituals and ceremonies connected with wedding of respondent No. 2-Ms. Mohan Devi and that money shall be inclusively utilised by the respondent No. 1 for her marriage purpose alone.
2. During the course of hearing, it has been contended by the learned Counsel for the respondents that the said petition did not have the express and authorised consent of the respondent-wife and hence the petitioner was not competent to have presented the said application before the Trial Court without obtaining the prior consent of the respondent-wife and hence dissolution of marriage by a decree of divorce by mutual consent is not permissible. It has further been contended that the said petition was perpetrated by fraud and misrepresentation since the wife was not a consenting party to the said petition and, therefore, the wife had moved an application before the Trial Court in this regard which is pending before the competent Court and as such the matter is sub-judice.
3. It has further been contended by the learned Counsel for respondents that during pendency of the earlier application for award of maintenance, a 2nd application was moved for award of maintenance on behalf of respondents under Section 125, Cr.P.C. was presented before the Trial Court on 23.2.1994. In the said application the wife claimed maintenance @ Rs. 500/- per month for herself and Rs. 500/- per month for her daughter. The Trial Court finally decided the said application by the impugned-order dated 23.3.1996 whereby the petitioner-husband was directed to pay a sum of Rs. 400/- per month for maintenance of the wife and Rs. 400/- per month for maintenance, upkeep and welfare of the minor daughter-respondent No. 2 payable w.e.f. 18.3.1987 i.e., the date when the first application for award of maintenance was moved by the respondents before the said Court.
4. The aforesaid order of the Trial Court was confirmed in appeal preferred by the husband-petitioner vide order dated 10.6.1997 by the Appellate Court of Additional District Judge No. 1, Bharatpur vide Criminal Appeal No. 8/97 against which, the present writ petition has been preferred to this Court.
5. I have heard learned Counsel for the parties at length and examined their rival claims and contentions as well as the legal position on the subject. Prima facie, I am of the considered view that the petitioner was not duty bound to comply with the impugned orders passed by the Courts below directing the award of maintenance in favour of respondents w.e.f. 18.3.1987 since the Trial Court has obviously erred in having lost sight of the fact that the respondents were not entitled to claim maintenance @ Rs. 400/- per month each w.e.f. 18.3.1987 i.e. the date when the first application under Section 125, Cr.P.C. was moved by the said respondents before the Trial Court since the said application had become inconsequential in view of the statement made by the respondent-wife before the Trial Court that she is ready and willing to live with the husband-petitioner in the matrimonial home and had further stated before the Trial Court that she does not want to press the said application for award of maintenance. Thereafter, the respondent-wife presented the second application for award of maintenance on 23.2.1994 in which she had alleged that she had been living in separation from the husband since solemnisation of marriage till 1988 and hence, in my view there was 'no occasion for the Trial Court to have awarded maintenance retrospectively w.e.f. 18.3.1987 and hence she had obviously forfeited her claim for maintenance for herself and for her minor daughter w.e.f. 18.3.1987. The Courts below have thus obviously failed to take into consideration the aforesaid material aspect of the case which should have been looked into after proper appreciation of evidence on record instead of directing the award of maintenance in the manner as so done. From the perusal of the application dated 23.2.1994 moved by the respondent-wife before the Trial Court, it is borne out that the petitioner is working as teacher in Government Upper Primary School, Vijayanagar, Kumher, Bharatpur and is drawing gross salary of Rs. 3,887/- w.e.f. May, 1977 whereas in the year 1994 he was drawing gross salary of Rs. 2,559 /-. During the course of hearing, it was brought to the notice of the Court that the respondent No. 1 is a house wife being not in any gainful employment.
6. In the matter of Smt. Vanamala v. H.M. Ranganatha Bhatta, reported in 1995 (3) Crimes 524, the question arose before the Apex Court with regard to interpretation of the provisions of Section 125, Cr.P.C. which inter alia provides that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs. 500/- in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time-to-time direct. Clause (b) of Section 125, Cr.P.C. defines the expression 'wife' "to include a women who has been divorced by or has obtained a divorce from her husband and has not remarried." It was held by the Apex Court that any woman who has been divorced by a mutual consent and has not remarried cannot be denied maintenance by virtue of Section 125(4) of the Criminal Procedure Code, 1973 which provides, as under:
"(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."
7. In my view the aforesaid ratio of decision of the Hon'ble Supreme Court in the matter of Smt. Vanamala v. H.M. Ranganathan, (supra) is squarely applicable to the insant case and the respondents are entitled to the award of maintenance.
8. I am further of the view that the respondent Nos. 1 and 2 i.e., Smt. Baikunthi Devi and Ms. Mohan Devi, respectively are entitled to award of maintenance w.e.f. 23.2.1994 i.e. the date when the second application for award of maintenance @ Rs. 400/- each was presented before the Trial Court by them and not retrospectively w.e.f. 18.3.1987 as so awarded by the Trial Court and confirmed by the Appellate Court. I am informed by Mr. Biri Singh, learned Counsel appearing for the petitioner that in compliance of the directions of this Court dated 25.9.1997, the petitioner has already deposited a sum of Rs. 17,600/- towards maintenance and for welfare of respondent Nos. 1 and 2 with the Trial Court. It is accordingly directed that the aforesaid amount which the petitioner has already deposited shall stand adjusted against the total arrears of maintenance due to the respondents to be calculated @ Rs. 800/- (consolidated) payable for both w.e.f. 23.2.1994.
9. During the course of hearing, Mr. R.P. Garg, learned Counsel appearing for the respondents has stated that the respondent No. 2-Ms. Mohan Devi is now of marriageable age and it will not be possible for her mother i.e. respondent No. 1-Smt. Baikunthi Devi to incur any expenditure on account of her marriage since she is not in any gainful employment. Moreover, the responsibility for discharging marital obligations apart from the legal duties is always on husband-petitioner in such circumstances. It is accordingly directed that the husband-petitioner shall deposit a sum of Rs. 1 lakh by way of two FDRs in the sum of Rs. 50,000/- each to be deposited in any Nationalised Bank of District Bharatpur for performance of rituals and ceremonies connected with wedding of respondent No. 2-Ms. Mohan Devi and that money shall be inclusively utilised by the respondent No. 1 for her marriage purpose alone. Alternatively, it is also made clear that husband-petitioner shall also be at liberty to cooperate with the respondent-wife as regards the expenditure to be incurred for performing marriage ceremony of his daughter respondent No. 2 and shall be at full liberty to participate in all ceremonies and rituals connected with the performance of wedding of their daughter Ms. Mohan Devi. The interest earned from the FDRs shall also be utilised by the respondent No. 1 for the welfare of her daughter respondent No. 2. The FDRs shall be prepared in the name of respondent No. 2-Ms. Mohan Devi and shall be valid initially for a period of three years to be renewed from time-to-time till the solemnization of wedding ceremonies of Ms. Mohan Devi and the right to operate the said FDRs will be of her mother i.e. respondent No. 1-Smt. Baikunthi Devi subject to the limitation and safeguards as suggested hereinabove. The Collector, Bharatpur is entrusted with the responsibility to enforce the compliance of this order. Since some part of arrears due to the respondents on account of maintenance for the period w.e.f. 23.2.1994 to 23.10.1997 amounting to Rs. 17,600/- @ Rs. 800/- (consolidated) have already been deposited by the petitioner with the Trial Court which shall stand adjusted against the balance amount due on account of arrears of maintenance to the respondents.
10. It is accordingly directed that the petitioner shall deposit the remaining amount due to the respondents within a period of 8 weeks from the date of submission of certified copy of the order of this Court to the Trial Court. The petitioner is further directed to deposit a sum of Rs. 1 lakh by way of two FDRs amounting to Rs. 50,000 / - each in the name of Ms. Mohan Devi to be drawn on any nationalised bank of District Bharatpur within a period of 6 months from the date of presentation of certified copy of the order of this Court to the Trial Court. The said FDRs shall be operated by Smt. Baikunthi Devi mother of Ms. Mohan Devi under the supervision of Collector, District Bharatpur and the said amount including interest accruing thereon shall be utilised exclusively for the marriage, welfare and upkeep or the minor daughter Ms. Mohan Devi in the interest of justice, equity and fair play. The FDRs shall be initially valid for a period of two years to be renewed from time-to-time. It is further directed that the respondents shall be at liberty to withdraw the balance amount due on account of arrears of maintenance for the aforesaid period from the Trial Court in accordance with law.
With the observations made above, the impugned order dated 23.3.1996 passed by Trial Court in Cri. Case No. 46/87 is modified and the revision petition stands disposed of accordingly. There will be no order as to costs.
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Rajasthan High Court
Harish Chand vs Baikunthi Devi And Anr. on 20 February, 1998
1. This revision petition has been preferred by the petitioner-husband against the impugned-order dated 23.3.1996 passed by the Judicial Magistrate, First Class No. 1, Bharatpur in Criminal Case No. 46/1987, whereby the Trial Court had directed the award of maintenance to the respondent-wife Smt. Baikunthi Devi @ Rs. 400/- per month and sum of Rs. 400/- per month for the welfare and upkeep of minor daughter Ms. Mohan Devi-respondent No. 2 w.e.f. 18.3.1987 i.e., the date when the first application for award of maintenance was moved by the respondents before the Trial Court. The above order of the Trial Court was confirmed in appeal preferred before the leaned District Judge, Bharatpur and the said Appellate Court vide its order dated 10.6.1997 confirmed the impugned order with a specific direction that in case the daughter-Mohan Devi is willing to stay with the mother-respondent No. 1 or with the father-petitioner, the entire responsibility for the maintenance, upkeep and welfare of the minor daughter shall be of the father i.e., the petitioner. During the pendency of the first application dated 18.3.1987, the petition for dissolution of marriage by mutual consent under Section 13B read with Section 25B of the Hindu Marriage Act, 1955 was moved by the parties before the learned District Judge, Bharatpur which is still pending adjudication.2. During the course of hearing, it has been contended by the learned Counsel for the respondents that the said petition did not have the express and authorised consent of the respondent-wife and hence the petitioner was not competent to have presented the said application before the Trial Court without obtaining the prior consent of the respondent-wife and hence dissolution of marriage by a decree of divorce by mutual consent is not permissible. It has further been contended that the said petition was perpetrated by fraud and misrepresentation since the wife was not a consenting party to the said petition and, therefore, the wife had moved an application before the Trial Court in this regard which is pending before the competent Court and as such the matter is sub-judice.
3. It has further been contended by the learned Counsel for respondents that during pendency of the earlier application for award of maintenance, a 2nd application was moved for award of maintenance on behalf of respondents under Section 125, Cr.P.C. was presented before the Trial Court on 23.2.1994. In the said application the wife claimed maintenance @ Rs. 500/- per month for herself and Rs. 500/- per month for her daughter. The Trial Court finally decided the said application by the impugned-order dated 23.3.1996 whereby the petitioner-husband was directed to pay a sum of Rs. 400/- per month for maintenance of the wife and Rs. 400/- per month for maintenance, upkeep and welfare of the minor daughter-respondent No. 2 payable w.e.f. 18.3.1987 i.e., the date when the first application for award of maintenance was moved by the respondents before the said Court.
4. The aforesaid order of the Trial Court was confirmed in appeal preferred by the husband-petitioner vide order dated 10.6.1997 by the Appellate Court of Additional District Judge No. 1, Bharatpur vide Criminal Appeal No. 8/97 against which, the present writ petition has been preferred to this Court.
5. I have heard learned Counsel for the parties at length and examined their rival claims and contentions as well as the legal position on the subject. Prima facie, I am of the considered view that the petitioner was not duty bound to comply with the impugned orders passed by the Courts below directing the award of maintenance in favour of respondents w.e.f. 18.3.1987 since the Trial Court has obviously erred in having lost sight of the fact that the respondents were not entitled to claim maintenance @ Rs. 400/- per month each w.e.f. 18.3.1987 i.e. the date when the first application under Section 125, Cr.P.C. was moved by the said respondents before the Trial Court since the said application had become inconsequential in view of the statement made by the respondent-wife before the Trial Court that she is ready and willing to live with the husband-petitioner in the matrimonial home and had further stated before the Trial Court that she does not want to press the said application for award of maintenance. Thereafter, the respondent-wife presented the second application for award of maintenance on 23.2.1994 in which she had alleged that she had been living in separation from the husband since solemnisation of marriage till 1988 and hence, in my view there was 'no occasion for the Trial Court to have awarded maintenance retrospectively w.e.f. 18.3.1987 and hence she had obviously forfeited her claim for maintenance for herself and for her minor daughter w.e.f. 18.3.1987. The Courts below have thus obviously failed to take into consideration the aforesaid material aspect of the case which should have been looked into after proper appreciation of evidence on record instead of directing the award of maintenance in the manner as so done. From the perusal of the application dated 23.2.1994 moved by the respondent-wife before the Trial Court, it is borne out that the petitioner is working as teacher in Government Upper Primary School, Vijayanagar, Kumher, Bharatpur and is drawing gross salary of Rs. 3,887/- w.e.f. May, 1977 whereas in the year 1994 he was drawing gross salary of Rs. 2,559 /-. During the course of hearing, it was brought to the notice of the Court that the respondent No. 1 is a house wife being not in any gainful employment.
6. In the matter of Smt. Vanamala v. H.M. Ranganatha Bhatta, reported in 1995 (3) Crimes 524, the question arose before the Apex Court with regard to interpretation of the provisions of Section 125, Cr.P.C. which inter alia provides that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs. 500/- in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time-to-time direct. Clause (b) of Section 125, Cr.P.C. defines the expression 'wife' "to include a women who has been divorced by or has obtained a divorce from her husband and has not remarried." It was held by the Apex Court that any woman who has been divorced by a mutual consent and has not remarried cannot be denied maintenance by virtue of Section 125(4) of the Criminal Procedure Code, 1973 which provides, as under:
"(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."
7. In my view the aforesaid ratio of decision of the Hon'ble Supreme Court in the matter of Smt. Vanamala v. H.M. Ranganathan, (supra) is squarely applicable to the insant case and the respondents are entitled to the award of maintenance.
8. I am further of the view that the respondent Nos. 1 and 2 i.e., Smt. Baikunthi Devi and Ms. Mohan Devi, respectively are entitled to award of maintenance w.e.f. 23.2.1994 i.e. the date when the second application for award of maintenance @ Rs. 400/- each was presented before the Trial Court by them and not retrospectively w.e.f. 18.3.1987 as so awarded by the Trial Court and confirmed by the Appellate Court. I am informed by Mr. Biri Singh, learned Counsel appearing for the petitioner that in compliance of the directions of this Court dated 25.9.1997, the petitioner has already deposited a sum of Rs. 17,600/- towards maintenance and for welfare of respondent Nos. 1 and 2 with the Trial Court. It is accordingly directed that the aforesaid amount which the petitioner has already deposited shall stand adjusted against the total arrears of maintenance due to the respondents to be calculated @ Rs. 800/- (consolidated) payable for both w.e.f. 23.2.1994.
9. During the course of hearing, Mr. R.P. Garg, learned Counsel appearing for the respondents has stated that the respondent No. 2-Ms. Mohan Devi is now of marriageable age and it will not be possible for her mother i.e. respondent No. 1-Smt. Baikunthi Devi to incur any expenditure on account of her marriage since she is not in any gainful employment. Moreover, the responsibility for discharging marital obligations apart from the legal duties is always on husband-petitioner in such circumstances. It is accordingly directed that the husband-petitioner shall deposit a sum of Rs. 1 lakh by way of two FDRs in the sum of Rs. 50,000/- each to be deposited in any Nationalised Bank of District Bharatpur for performance of rituals and ceremonies connected with wedding of respondent No. 2-Ms. Mohan Devi and that money shall be inclusively utilised by the respondent No. 1 for her marriage purpose alone. Alternatively, it is also made clear that husband-petitioner shall also be at liberty to cooperate with the respondent-wife as regards the expenditure to be incurred for performing marriage ceremony of his daughter respondent No. 2 and shall be at full liberty to participate in all ceremonies and rituals connected with the performance of wedding of their daughter Ms. Mohan Devi. The interest earned from the FDRs shall also be utilised by the respondent No. 1 for the welfare of her daughter respondent No. 2. The FDRs shall be prepared in the name of respondent No. 2-Ms. Mohan Devi and shall be valid initially for a period of three years to be renewed from time-to-time till the solemnization of wedding ceremonies of Ms. Mohan Devi and the right to operate the said FDRs will be of her mother i.e. respondent No. 1-Smt. Baikunthi Devi subject to the limitation and safeguards as suggested hereinabove. The Collector, Bharatpur is entrusted with the responsibility to enforce the compliance of this order. Since some part of arrears due to the respondents on account of maintenance for the period w.e.f. 23.2.1994 to 23.10.1997 amounting to Rs. 17,600/- @ Rs. 800/- (consolidated) have already been deposited by the petitioner with the Trial Court which shall stand adjusted against the balance amount due on account of arrears of maintenance to the respondents.
10. It is accordingly directed that the petitioner shall deposit the remaining amount due to the respondents within a period of 8 weeks from the date of submission of certified copy of the order of this Court to the Trial Court. The petitioner is further directed to deposit a sum of Rs. 1 lakh by way of two FDRs amounting to Rs. 50,000 / - each in the name of Ms. Mohan Devi to be drawn on any nationalised bank of District Bharatpur within a period of 6 months from the date of presentation of certified copy of the order of this Court to the Trial Court. The said FDRs shall be operated by Smt. Baikunthi Devi mother of Ms. Mohan Devi under the supervision of Collector, District Bharatpur and the said amount including interest accruing thereon shall be utilised exclusively for the marriage, welfare and upkeep or the minor daughter Ms. Mohan Devi in the interest of justice, equity and fair play. The FDRs shall be initially valid for a period of two years to be renewed from time-to-time. It is further directed that the respondents shall be at liberty to withdraw the balance amount due on account of arrears of maintenance for the aforesaid period from the Trial Court in accordance with law.
With the observations made above, the impugned order dated 23.3.1996 passed by Trial Court in Cri. Case No. 46/87 is modified and the revision petition stands disposed of accordingly. There will be no order as to costs.
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