O Naurangabag P.S v. Bettiah, Distt
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.313 of 2010 ====================================================== Harishankar Singh S/O Late Biswanath Singh, Village-Rupan Chhap, P.S. Barauli, Distt- Gopalganj (Bihar) .... .... Petitioner/s 1. State Of Bihar 2. Sunaina Devi wife of Harishankar Singh R/O Naurangabag P.S. Versus Bettiah, Distt-West Champaran.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ajay Kumar Sharma, Adv. For the Respondent/s : Mr. Mirtunjay Kumar Nirala, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 9 03-07-2013 Heard learned counsel for the petitioner as well as learned Additional P.P. for the State. In spite of service O.P. No.2 failed to appear. 2. This revision petition has been filed on behalf of husband/petitioner against judgment dated 21st of November 2009 passed by Principal Judge, Family Court, Bettiah in Maintenance Case No. 101/2007 directing him (husband) to pay Rs.8,000/- per month to the O.P./wife. The order has been made operative from the date of filing of case, i.e., from 31.05.2007. 3. Sole ground has been raised on behalf of petitioner while challenging the order impugned that from the pleadings as well as from the evidence available on the record it is apparent that O.P./wife herself is a Government employee and is posted as ANM and is more or less drawing the same pay which
Facts
the petitioner is getting and therefore, learned lower court was not at all justified in passing the order impugned. 2 4. On the other hand, learned APP submitted that even the wife having means will not deprive her to seek maintenance from her husband because of the fact that the husband was under obligation to keep his wife under same standard of living which he was enjoying. From the evidence available on the record, no such averment has been made on behalf of the petitioner/husband, therefore, the order impugned is just, legal and proper. 5. To elucidate the matter under controversy in its right perspective, a brief fact of the case is found to be incorporated first. 6. Applicant Sunaina Devi claiming herself to be the wife of petitioner/O.P. Harishankar Singh submitted that she had begotten two daughters out of wedlock. The elder one is already married while the younger one is a student. In the background of undesired, unwarranted, licentious activity of the Opposite Party/husband wherein he had developed intimacy with one Krishna Devi with whom, later on, he married and began to coerce the petitioner to part with her salary and having denied, she was kicked out. As she found herself unable to meet with the incurring expenses as well as to repay the loan incurred during marriage of first daughter, she has filed a petition for maintenance, on account of denial by the O.P. to maintain them. On the point of means, it 3 has been stated that husband/O.P. possesses five acres of land as well as happens to be Clerk. 7. On the other hand, the husband by way of filing show-cause though not supported during trial as failed to examine himself, admitted the status of spouse and further suggested that he is not the biological father of two daughters begotten by the applicant. It has further been averred that after having no issue, the applicant consented and so he had married with Krishna Devi. Earlier there was cordial relation but subsequently, she became jealous and hostile to Krishna Devi. She had left the place on her own. She is an ANM herself and is withdrawing Rs.15000-16000/- per month and has constructed a house at Bettiah and is residing there along with her daughters. The most important theme is apparent from paragraph-8 of the show-cause wherefrom it is evident that he had denied the allegation of petitioner leveled under para-7 that he is not ready to maintain his second daughter although he explained that on account of being the petitioner herself employed, there was no question for providing maintenance. 8. Petitioner had adduced five witnesses including herself while neither any witness nor the petitioner/O.P. himself volunteered as a witness. It is also evident from the order-sheet that after filing of show-cause petitioner/O.P. failed to participate 4 in the proceeding and on account thereof evidence of all the witnesses is found unchallenged. From the evidence of the witnesses including the O.P./wife, it is apparent that none had disclosed regarding employment of wife as ANM, but the applicant herself along with witnesses have disclosed that major portion of salary of wife found spared for repayment of loan. Furthermore, the second daughter is reading at Jaipur Engineering College and the applicant/wife is now faced with hardship to cater educational expenses. 9. From the judgment of the learned lower court, it is evident that on account of own lapses of petitioner/husband no positive, concrete evidence has come upon record with regard to means of applicant/wife. Moreso, on account of non examination of petitioner/husband the contents of show-cause is found unsupported. The law is settled on this score that unsupported show-cause will be worthless for consideration. 10. Earning of wife will really deprive her from seeking maintenance from her husband with regard to herself as well as her daughters is the moot question to be properly answered as raised during course of hearing although is found only an oral submission without having any logical support. 11. The Hon’ble Apex Court in the case of Bhagwan Dutt v. Kamla Devi as reported in AIR 1975 SC 83, dealing with 5 the relevant provisions as well as logic relating to grant of maintenance concluded in the following way:- the Magistrate 18. In our opinion, one wrong assumption has led to another false deduction. The mere fact that the language of Section 488 (1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, is debarred from taking into consideration the wife's own separate income or means of support. There is a clear distinction between a wife's locus standi to file a petition under S. 488 and her being entitled, on to a particular amount of maintenance merits, thereunder. This distinction appears to have been overlooked in Major Joginder Singh's case AIR 1960 Punj 249 (supra). Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount will still depend upon the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband. the discretion of 19. The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments. 20. There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in the language of the associate Section 489 (1), that the financial resources of the wife are also a relevant consideration in making such a determination. Section 489 (1) provides, inter alia, that "on proof of a change in the circumstances of 6 the allowance any person receiving under Section 488 a monthly allowance, the Magistrate, may make such alteration fit". The as he in "circumstances" contemplated by Section 489 (1) must include financial circumstances and in that the view, circumstances must extend to a change in the financial circumstances of the wife. the change inquiry as thinks the to in 21. Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under S. 488 (1), into consideration the separate income and means of the wife. the Magistrate is competent take to 12. Same view has been reiterated in the case of Chaturbhuj v. Sita Bai as reported in 2008(2) SCC 316 and the relevant paragraphs on this score happens to be 6, 7 and 8 which are as follows:-
Legal Reasoning
6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case 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 desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his 7 wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503). 7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself. 8. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. 13. As stated above, it is apparent that on account of own lapses on the part of petitioner/husband the trial had concluded in the present manner on account of which there is no evidence on 8 behalf of petitioner/husband to controvert the assertion of O.P./wife that her income was not at all sufficient to cater the demand more particularly when the younger daughter is a student of engineering. Now-a-days, the cost of education is well known apart from the fact that she has also to repay the loan borrowed at the time of marriage of her first daughter. Own fault of petitioner/husband is found to be prejudicial to his interest on account of which the grievances raised on his behalf that receiving monthly salary as an ANM will deprive of the O.P./Wife to claim maintenance is found to be non substantiated. 14. Consequent thereupon, this revision petition is found devoid of merit and is accordingly, rejected. (Aditya Kumar Trivedi, J) Patna High Court July 3rd 2013 Perwez/AFR