Maintenance u/s. 125 Cr.P.C can be Denied only when the Spouse is Residing Separately without any Justifiable Reasons or if she got Married again [Case Law]

Criminal Procedure Code, 1973 - Section 125 - The maintenance as provided under Section 125 of Cr.P.C can be denied only when the spouse is residing separately without any justifiable reasons or if she got married again. [Para 7]


Criminal Procedure Code, 1973 - Section 125 - It is up to the court to extend its powers to meet the ends of justice unless there is an indication to the contrary in the statute. In the matters under Sections 125 to 127 Cr.P.C., the courts have implied authority to consider the matter in appropriate cases.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANNIE JOHN, J.

R.P. (FC) No. 158 of 2018

Dated this the 13th day of April, 2018

AGAINST THE ORDER/JUDGMENT IN MC 12/2016 of FAMILY COURT, KALPETTA DATED 24-10-2016 

REVISION PETITIONER/RESPONDENT

PRASAD

BY ADVS.SRI.T.MADHU SRI.K.V.BINOD 

RESPONDENT(S)/PETITIONERS

PREMA AND ANOTHER

R1 BY ADV. SRI.MATHEW KURIAKOSE 

O R D E R

The revision petitioner is the respondent in M.C. No. 12 of 2016 on the file of the Family Court, Kalpetta. The above claim petition was filed by the respondents herein under Section 125 of Cr.P.C claiming separate maintenance for them. The allegation of the respondent is that the revision petitioner is not giving any maintenance to the respondents. As per order dated 24.10.2016 in M.C. No. 12 of 2016, the revision petitioner was directed to pay maintenance of Rs.10,000/- to the first respondent and Rs.5000/- per month to the second respondent from the date of petition.

2. The marriage between the revision petitioner and the first respondent was solemnised on 14.11.2000 at the Valliyoorkavu Sree Bhagavathy temple. On 15.04.2002, the second respondent was born to them in that wedlock. Since the revision petitioner got involved in several visa cheating case, the persons from whom he obtained money started visiting their house and therefore, he took the revision petitioner to various places. Thereafter, the revision petitioner took the first respondent to the parental house of the first respondent and he left them there. After a quite long time, the respondents were unaware of the whereabouts of the revision petitioner. In December, 2015, the first respondent got information that the revision petitioner is in jail. Thereafter, he has been released from jail. Even after his release from jail, he is not providing any maintenance to the revision petitioners.

3. The learned counsel for the revision petitioner contended that prior to the marriage of the first respondent with the revision petitioner, the first respondent has married twice and therefore, there is no valid marriage between the revision petitioner and the first respondent. It is also contended that the second respondent is the not the child born in their wedlock and therefore, he is not liable to pay maintenance to the second respondent. It is further contended that the first respondent is working as an Assistant in a Document Writer's office and she is also doing tailoring works.

4. The learned counsel for the revision petitioner argued that the amount of maintenance ordered by the Family Court is highly exorbitant and the revision petitioner is not capable of raising that much of amount. The court below failed to consider the fact that the revision petitioner left the first respondent on 10.06.2003 and after a long period of 13 years, the first respondent has claimed maintenance from the petitioner.

5. The respondents demanded monthly maintenance at the rate of Rs.12,000/- and Rs.8000/- per month respectively. It is alleged that the revision petitioner is getting a sum of Rs.50,000/- per month from his real estate business and Rs.1,00,000/- as annual income from his landed properties. It is further contended that the revision petitioner is capable of paying maintenance amount; but he failed to do so and the revision petitioner has no case that he was paying any amount as maintenance to the respondents.

6. After hearing the learned counsel on both sides and on going through the records, I find that the revision petitioner has not produced any document to establish that their marriage is not legally valid. In support of the allegation that the first respondent has married twice and she has not obtained divorce from her earlier husbands, the revision petitioner has not adduced any cogent evidence before the court below to substantiate the same. Therefore, he cannot argue much on this point. Another contention is that second respondent is not the child born on their wedlock. However, he has no case that the child was born before their marriage. Moreover, the marriage between the revision petitioner and the second respondent is not dissolved and therefore, it is sufficient enough to presume that the second respondent has born out of their wedlock.

7. The next issue to be considered is whether the amount of maintenance ordered by the Family Court is exorbitant or not. The first respondent has claimed monthly maintenance at the rate of Rs.12,000/- and 8000/- respectively to the first and second respondents respectively. The second respondent is a minor child. Even though the revision petitioner has averred that the first respondent is having sufficient income to maintain herself, he has not produced any document to prove the same. The first respondent has contended that the revision petitioner is having sufficient income to give maintenance to the respondents. The revision petitioner has denied the same and submitted that he is a coolie worker, that has to look after his aged mother out of his meagre income and that he does not know how much income he earns monthly. The second respondent was studying in 9th standard at the time of giving evidence. During cross examination, the revision petitioner has stated that he is doing some building jobs. It shows that the petitioner has no consistent case. The learned counsel for the revision petitioner submits that the petitioner is suffering from respiratory problems; but no documents has been produced to prove the same. In fact, the intention of the petitioner is to drag the matter indefinitely so as to avoid payment of maintenance to the respondents. The respondents has filed M.C in the year 2016 and the order was passed on 24.10.2016. The revision petition is filed in 2018 and there is no evidence to prove that he has paid any amount to the respondents towards maintenance. The revision petitioner has no case that the first respondent has got married again or their marriage has been dissolved. Section 125 Cr.P.C has been enacted to provide remedy to seek maintenance by the wife and children. The maintenance as provided under Section 125 of Cr.P.C can be denied only when the spouse is residing separately without any justifiable reasons or if she got married again. In the absence of any such evidence, as per law, the revision petitioner, being the husband, is bound to maintain the first respondent wife and the second respondent child. Section 125 of Cr.P.C reads thus: 

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." 

8. In Smt. Pushpa Pandey vs Suresh Pandey, 2017 KHC 3318 it is held that it is the duty of the husband to provide maintenance to his wife and the maintenance is granted for the sustenance of the wife. In that case, eventhough the respondent has denied the said assertion and has stated that he is jobless and is dependent on the pension of his mother and is also suffering from various diseases, he has neither filed any documents nor executed any witness to support his contention. No documents related to the monthly income of the husband was also not produced. It is also held that even if the husband is not doing any job, he cannot escape from his liability to pay maintenance amount to his wife.

9. In Pyla Mutyalamma Alias Satyavathi v. Pyla Suri Demudu and another, (2011) 12 SCC 189 it is held that the revisional court can interfere only if there is any material irregularity in the procedure or an error of jurisdiction. The Court on facts held that the High Court in its revisional jurisdiction ought not to have entered into the scrutiny of finding recorded by the Magistrate that appellant was a married wife of respondent before allowing an application determining maintenance. It is also held in paragraph 19 of the judgment that the proof and evidence of subsistence of an earlier marriage at the time of solemnising the second marriage, has to be adduced by the husband taking the plea of subsistence of an earlier marriage and when a plea of subsisting marriage is raised by the respondent husband, it has to be satisfactorily proved by tendering evidence.

10. In Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705 the wife has absolute right of maintenance and the husband is not absolved from his obligation to provide maintenance merely on his plea of financial constraints, so long as he is healthy, able-bodied and capable of earning for his own support. It is further held that sustenance does not mean bare survival, that it gains more weightage when children are also with wife and that the quantum should be adequate so as to enable wife to live with dignity similar to standard with which she would have lived in her matrimonial home.

11. In Bhuwan Mohan Singh v. Meena and others [(2015) 6 SCC 353], it is held that the duty of the husband towards wife is to provide proper maintenance. The concept of sustenance does not necessarily mean to lead the life of an animal; but she is entitled in law to lead a life in similar manner as she would have lived in the house of her husband and the husband has bounden duty to enable wife to lead life with dignity according to their social status and strata.

12. In Badsha v. Urmila Badshah Godse and another[(2014) 1 SCC 188], it is held that while dealing with the application of destitute wife or helpless children under Section 125 Cr.P.C, the court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society. Of late, it is emphasised that the courts have to adopt different approaches in 'social justice adjudication'.

13. In the light of the above decision, it is up to the court to extend its powers to meet the ends of justice unless there is an indication to the contrary in the statute. In the matters under Sections 125 to 127 Cr.P.C., the courts have implied authority to consider the matter in appropriate cases.

14. It is true that no evidence was produced by the petitioner before the court below regarding his income. However, the court below has ordered maintenance at the rate of Rs.10,000/- and Rs.5000/- per month respectively to the respondents. The court below has not calculated the notional income to the petitioner and without considering the same the court below has awarded the order of maintenance to the respondent wife.

15. Considering the arguments advanced by the learned counsel for the petitioner with regard to the awarding of the maintenance, I am constrained to reduce the maintenance of the first respondent to Rs.8000/- (Rupees eight thousand only). The rest of the order stands confirmed. The petitioner is directed to deposit 50% of the arrears of maintenance on or before 30.05.2018 and the rest of the amount shall be paid within three months from the date of remittance of the maintenance. In case the petitioner fails to pay the amount as ordered above, the respondent is at liberty to proceed with executing the order.

Accordingly, this R.P (FC) is partly allowed.