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PETITIONER:

RAJATHI

Vs.

RESPONDENT:

C. GANESAN

DATE OF JUDGMENT: 22/07/1999

BENCH:

S.Saghir Ahmad, D.P.Wadhwa

JUDGMENT:

D.P. WADHWA,J.

Leave granted.

This is wife's appeal against order dated December 4,

1997 of the Madras High Court passed in exercise of its

jurisdiction under Section 482 of the Criminal Procedure

Code ('Code' for short). By This order wife was deprived of

maintenance of Rs.200/- per month granted to her under

Section 125 of the Code.

Wife presented a petition under Section 125 of the

Code on February 3, 1993 claiming from her husband, the

respondent, maintenance for herself and her two daughters.

The minor son of the parties is living with the husband. In

the present appeal we are concerned with the grant of

maintenance to the wife. She alleged that her husband

having sufficient means neglected or refused to maintain her

and that she was unable to maintain herself. In the

petition wife had claimed maintenance at the rate of

Rs.500/- per month.

Learned Judicial Magistrate, by order dated April 24,

1995, granted her maintenance only at the rate of Rs.200/-

per month. Husband felt aggrieved and he went in revision

to the Court of Sessions. The learned Sessions Judge,

Salem, by order dated November 5, 1996 dismissed the

revision petition filed by the husband and confirmed the

order of grant of maintenance to the wife at the rate of

Rs.200/- per month. Still feeling aggrieved husband filed a

petition under Section 482 of the Code in the Madras High

Court. This was allowed by learned single Judge, who by the

impugned order, set aside the orders both of the Judicial

Magistrate and the Sessions Judge and dismissed the petition

of the wife for maintenance. Now the wife has come to this

Court.

Proceedings under Section 125 of the Code are of

summary nature. This Section is meant to provide immediate

relief to the wife, minor children and parents, who are

unable to maintain themselves. A maximum of Rs.500/- per

month can be granted to the wife under this Section. This

will be when husband having sufficient means neglects or

refuses to maintain her, she being unable to maintain

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herself. Section 125 we may quote in extenso:-

"125. Order for maintenance of wives, children and

parents. - (1) If any person having sufficient means

neglects or refuses to maintain -

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

(b) his legitimate or illegitimate minor child,

whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a

married daughter) who has attained majority, where such

child is, by reason of any physical or mental abnormality or

injury unable to maintain itself, or

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

or herself,

a Magistrate of the first class may, upon proof of

such neglect or refusal, order such person to make a monthly

allowance for the maintenance of his wife or such child,

father or mother, at such monthly rate not exceeding five

hundred rupees in the whole, as such magistrate thinks fit,

and to pay the same to such person as the Magistrate may

from time to time direct:

Provided that the Magistrate may order the father of a

minor female child referred to in clause (b) to make such

allowance, until she attains her majority, if the Magistrate

is satisfied that the husband of such minor female child, if

married, is not possessed of sufficient means.

Explanation. - For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions

of the Indian Majority Act, 1875 (9 of 1875) is deemed not

to have attained his majority;

(b) "wife" includes a woman who has been divorced by,

or has obtained a divorce from, her husband and has not

remarried.

(2) Such allowance shall be payable from the date of

the order, or, if so ordered, from the date of the

application for maintenance.

(3) If any person so ordered fails without sufficient

cause to comply with the order, any such Magistrate may, for

every breach of the order, issue a warrant for levying the

amount due in the manner provided for levying fines, and may

sentence such person, for the whole or any part of each

month's allowance remaining unpaid after the execution of

the warrant, to imprisonment for a term which may extend to

one month or until payment if sooner made:

Provided that no warrant shall be issued for the

recovery of any amount due under this section unless

application be made to the Court to levy such amount within

a period of one year from the date on which it became due:

Provided further that if such person offers to

maintain his wife on condition of her living with him, and

she refuses to live with him, such Magistrate may consider

any grounds of refusal stated by her, and may make an order

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under this section notwithstanding such offer, if he is

satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage

with another woman or keeps a mistress, it shall be

considered to be just ground for his wife's refusal to live

with him.

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

(5) On proof that any wife in whose favour an order

has been made under this section is living in adultery, or

that without sufficient reason she refuses to live with her

husband, or that they are living separately by mutual

consent, the Magistrate shall cancel the order."

If we refer to proviso to sub-section (3) of Section

125 where a husband offers to maintain his wife on the

condition of her living with him and she refuses to live

with him a Magistrate may consider any ground of refusal

stated to her and nevertheless make an order notwithstanding

such offer, if the Magistrate is satisfied that there is

just ground for so doing. Explanation to the proviso states

that if a husband has contracted marriage with any other

woman or keeps a mistress, it shall be considered to be just

ground for his wife's refusal to live with him.

In the present case wife alleged that her husband had

contracted a second marriage on January 4, 1990. She filed

a complaint for an offence under Section 494 of the Indian

Penal Code. It is stated that the complaint was dismissed

and husband was acquitted. High Court took this

circumstance against the wife and adversely commented on her

refusal to live with her husband. High Court, it would

appear, lost sight of the fact how it would be difficult for

the wife to prove the second marriage. This Court has held

that to prove the second marriage as a fact essential

ceremonies constituting it must be proved and if second

marriage is not proved to have been validly performed by

observing essential ceremonies and customs in the community

conviction under Section 494 IPC ought not to be made. The

fact, however, remains in the present case that the husband

is living with another woman. Proviso to sub-section (3)

would squarely apply and justify refusal of the wife to live

with her husband. There can be, however, other grounds for

the wife to refuse to live with her husband, e.g., if she is

subjected to cruelty by him. It was a case where the

husband neglected or refused to maintain his wife. High

Court did not consider the question if husband was having

sufficient means. It rather unnecessarily put the burden on

the wife to prove that she was unable to maintain herself.

The words "unable to maintain herself" would mean that means

available to the deserted wife while she was living with her

husband and would not take within itself the efforts made by

the wife after the desertion to survive somehow. Section

125 is enacted on the premise that it is obligation of the

husband to maintain his wife, children and parents. It

will, therefore, be for him to show that he has no

sufficient means to discharge his obligation and that he did

not neglect or refuse to maintain them or any one of them.

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High Court also observed that the wife did not plead as to

since when she was living separately. This is not quite a

relevant consideration. Even though wife was unable to

prove that husband has remarried, yet the fact remained that

the husband was living with another woman. That would

entitle the wife to live separately and would amount to

neglect or refusal by the husband to maintain her.

Statement of the wife that she is unable to maintain herself

would be enough and it would be for the husband to prove

otherwise.

We may also have a look at the provisions of the Hindu

Adoption and Maintenance 1956, which provides for

maintenance to a Hindu wife. Under Section 18 of this Act a

Hindu wife, whether married before or after the commencement

of this Act, shall be entitled to be maintained by her

husband during her life time. Under sub-section (2) she

will be entitled to live separate from her husband without

forfeiting her claim to maintenance,- (a) if he is guilty of

desertion, that is to say, of abandoning her without

reasonable cause and without her consent or agains t her

wish, or of willfully neglecting her; (b) if he has treated

her with such cruelty as to cause a reasonable apprehension

in her mind that it will be harmful or injurious to live

with her husband; (c) if he is suffering from a virulent

form of leprosy; (d) if he has any other wife living; (e)

if he keeps a concubine in the same house in which his wife

is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another

religion; and (g) if there is any other cause justifying

her living separately. Under sub-section (3) a Hindu wife

is not entitled to separate residence and maintenance from

her husband if she is unchaste or ceases to be Hindu by

conversion to another religion. It will be apposite to keep

these provisions in view while considering the petition

under Section 125 of the Code.

We are not going into the question if the High Court

on examining the case on merit was correct in coming to the

conclusion that the wife was possessed of sufficient means

and was able to maintain herself. In the present appeal, We

are only concerned to see if the High Court was justified in

invoking its inherent powers under Section 482 of the Code

and we do not think the High Court was right.

In Krishnan & Anr. vs. Krishnaveni & Anr. [(1997) 4

SCC 241] this Court explained the scope and power of the

High Court under Section 482 of the Code. The question

before the Court was if in view of the bar of second

revision under sub-section (3) of Section 397 of the Code

was prohibited, inherent power of the High Court is still

available under Section 482 of the Code. This Court said as

under :

"Ordinarily, when revision has been barred by Section

397(3) of the Code, a person - accused/complainant - cannot

be allowed to take recourse to the revision to the High

Court under Section 397(1) or under inherent powers of the

High Court under Section 482 of the Code since it may amount

to circumvention of the provisions of Section 397(3) or

Section 397(2) of the Code. It is seen that the High Court

has suo motu power under Section 401 and continuous

supervisory jurisdiction under Section 483 of the Code. So,

when the High Court on examination of the record finds that

there is grave miscarriage of justice or abuse of the

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process of the courts or the required statutory procedure

has not been complied with or there is failure of justice or

order passed or sentence imposed by the Magistrate requires

correction, it is but the duty of the High Court to have it

corrected at the inception lest grave miscarriage of justice

would ensue. it is, therefore, to meet the ends of justice

or to prevent abuse of the process that the High Court is

preserved with inherent power and would be justified, under

such circumstances, to exercise the inherent power and in an

appropriate case even revisional power under Section 397(1)

read with Section 401 of the Code. As stated earlier, it

may be exercised sparingly so as to avoid needless

multiplicity of procedure, unnecessary delay in trial and

protraction of proceedings. The object of criminal trial is

to render public justice, to punish the criminal and to see

that the trial is concluded expeditiously before the memory

of the witness fades out. The recent trend is to delay the

trial and threaten the witness or to win over the witness by

promise or inducement. These malpractices need to be curbed

and public justice can be ensured only when trial is

conducted expeditiously."

In the present case, the High Court minutely examined

the evidence and came to the conclusion that the wife was

living separately without any reasonable cause and that she

was able to maintain herself. All this High Court did in

exercise of its powers under Section 482 of the Code which

powers are not a substitute for a second revision under

sub-section (3) of Section 397 of the Code. The very fact

that the inherent powers conferred on the High Court are

vast would mean that these are circumscribed and could be

invoked only on certain set principles.

It was not necessary for the High Court to examine the

whole evidence threadbare to exercise jurisdiction under

Section 482 of the Code. Rather in a case under Section 125

of the Code trial court is to take a prima facie view of the

matter and it is not necessary for the court to go into the

matrimonial disputes between the parties in detail. Section

provides maintenance at the rate of Rs.500/- per month.

There is outcry that this amount is too small. In the

present case, however, we are quite surprised that the court

granted paltry amount of Rs.200/- per month as maintenance

which was confirmed in the revision by the Sessions Court

and the High Court thought it fit to interfere under Section

482 of the Code in exercise of its inherent jurisdiction.

Whatever may be the merit of the case, High Court

wrongly exercised its jurisdiction under Section 482 of the

Code in passing the impugned order. The appeal is allowed

and the impugned order dated December 4, 1997 of the High

Court is set aside.