Case BriefsHigh Courts

High Court of Madhya Pradesh: While examining the revision petition filed by the applicant against the order passed by the Principal Judge, Family Court, Ratlam whereby it directed the applicant/husband to pay maintenance of Rs. 4000 per month to the non-applicant/wife from the date of order, the Bench comprising of Jarat Kumar Jain, J., held that the finding of the trial court that the non-applicant/wife has sufficient reason to live separately is not sustainable in law and since she is residing separately from applicant husband without any reason hence, she is not entitled for maintenance under Section 125 of CrPC .

The applicant husband moved the court submitting that the non-applicant/wife is not entitled for maintenance and the erroneous order passed by the trial court is liable to be set aside as the court gave a finding that applicant/husband earns Rs.50,000 per year and to pay Rs. 4000 per month to the non-applicant/wife, is against the evidence on record. The counsel for the husband submitted that the wife had left the matrimonial home voluntarily and is living in her parental home without any reason even though the applicant went to Ratlam to bring her back with him; however, she refused to come with him further, the non-applicant/wife being an advocate, had sufficient income to maintain herself and was not entitled to maintenance.

The Court on examining the findings of trial court as to whether non-applicant/wife has sufficient reason to live separately and whether she is unable to maintain herself observed, that since the non-applicant left matrimonial home voluntarily with her brother with a view to select a girl for his marriage and without lodging any report at the  Police Station or making any complaint to anybody even though she had a mobile phone and used to talk with her brother, but never made any complaint about her harassment to her brother therefore, it is practically impossible to believe that the non-applicant/wife could have been so harassed in 12 days and that it was impossible for her to live in her matrimonial home.

The Court relying on Savita Bai v. Prahlad , 2013 (3) MPWN 77, held that since the  non-applicant wife is unable to prove the prove the charge of harassment it cannot be held that she was forced to leave her matrimonial home. Therefore, as the non-applicant/wife is residing separately without any reason,  she is not entitled to maintenance under Section 125 CrPC. Thus, the Court set aside the order of the trial court and allowed the revision petition. [Anil v. Sunita, 2016 SCC OnLine MP 6368, decided on 11.11. 2016]

 

Case BriefsHigh Courts

High Court of Kerala: Deciding the question on whether subsistence of matrimonial relationship is a sine-qua-non for seeking reliefs under Sections 18 and 20 of the Protection of Women from Domestic Violence, 2005 (D.V. Act), the Bench of Sunil Thomas, J. ruled that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of the D.V. Act to seek appropriate reliefs. It was held that the scope of the DV Act is not confined within the limits of time and space and even after the dissolution such obligations continue.

The Court said that though it may appear to be paradoxical to argue that protection orders can be sought even after separation of spouses, such a cause of action may not be rare, which arises subsequent to the divorce, but relatable to the earlier matrimonial relationship. It is not unusual that even after divorce, certain obligations arising from past matrimonial relationship continue, like, maintenance, custody of children, liability to pay amounts or assets received, operation of bank accounts and personal safety of divorced wife and children born in the wedlock. It will be illogical and absurd to hold that the moment of divorce is granted, scope of protection order also ceases.

In the present case, the petitioner’s wife and child sought maintenance under Sections 18 and 20, after their divorce in May 2015, invoking Section 13-B of the Hindu Marriage Act. The reliefs sought were a protection order against domestic violence, return of gold ornaments and passport of the respondent. The petitioner sought to quash the above proceedings in lieu of the specific, categoric agreement that they had entered into that the wife will not claim ornaments, money or maintenance against the husband in future and also that the reliefs can be sought only during the subsistence of the marriage and that the marriage had been brought to an end legally and factually.

The Court rejecting the petitioner’s contention, held that contracting out of the statutory rights conferred on the wife under Sections 19 to 22 of D.V. Act is against public policy and hence cannot be recognized, unless it is proved that there was a mutually satisfactory settlement of all claims. The Court, hence rejected the contention of the petitioner and held that the reliefs sought is not maintainable and that the legally divorced wife has a locus standi during her entire life-time. [Bipin v. Meera D.S., 2016 SCC OnLine Ker 19559, decided on 13.10.2016]

Case BriefsHigh Courts

Delhi High Court: Reiterating the factors to be considered while considering the merits of an application for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 the Court held that the object behind Section 24  is to provide for maintenance, pendente lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation and  not unduly suffer in the conduct of the case for want of funds. A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equistatus and respect that the spouse would have enjoyed if he/she continued to live with other spouse.

The Court reiterated the factors to be considered while determining the amount of maintenance as laid down in Bharat Hegde v. Saroj Hegde,  2007 SCC Online Del 622 : (2007) 140 DLT 16:

  • Status of the parties.
  • Reasonable wants of the claimant.
  • The independent income and property of the claimant
  • The number of persons, the non applicant has to maintain.
  • The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
  • Non-applicant’s liabilities, if any.
  • Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  • Payment capacity of the non-applicant.
  • Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
  • The non-applicant to defray the cost of litigation.
  • The amount awarded under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the Act.

The Division Bench of Pradeep Nandrajog and Pratibha Rani, JJ. held that the court has to necessarily arrive at prima facie determination about the earning capacity of the rival claimants. The determination cannot be made with exactitude; it is essentially interim in nature. Capacity of the other party to earn cannot be taken into consideration – it is only the actual earning of the opposite party on the basis of which relief can be granted. Permanent income and not casual income is relevant. Where there was sufficient means in the husband’s family on the strength of which the husband got married he has to share the burden of supporting his wife during the course of annulment of such marriage

The Court  further observed that “the provisions of Section 24 are beneficent in nature and the power is exercised by the court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The legislature, in its discretion, has not fixed any guideline regarding ceiling limit of maintenance, pendente lite, as in the case of the Divorce Act or the Parsi Marriage Act. The word “support” in Section 24 is not to be narrowly interpreted. It does not mean bare existence. It means that the claimant spouse should have the same comfort as the other. Of course, the section is not intended to bring about arithmetical equality between the two.” [Sujit Kumar v. Vandana, 2016 SCC OnLine Del 4397, decided on August 8, 2016]

Case BriefsSupreme Court

Supreme Court: Deciding a petition relating to the ownership of elephants in possession of the owners, the bench of Dipak Misra and Shiva Kirti Singh, J.J., directed the State of Kerala to refrain from issuing any ownership certificate to any of the persons in possession of the animals.

In the case where application was made to quash a notification dated 26.02.2016 and cancellation of ownership certificates in pursuance of the said notification, the petitioners contended that the State Government has no authority to issue such a notification however, an affidavit to the contrary was filed by the UOI to show that state government can issue notification subject to certain conditions as per Section 40 (4) of the Wildlife Protection Act, 1972.

  • The Court also took note of the order dated 29.03.2016, where the belowmentioned 3 fundamental issues were framed by this Court: Whether any person can keep elephant in his custody like the owner, after the act has come into force?
  • Assuming no prohibition for keeping an elephant, what rule should govern the maintenance of the animal?
  • Who are the authorities for the maintenance and treatment of animals?

Considering that the interlocutory applications were inherently connected with the aforesaid issue, the Court said that the said applications shall be dealt with while dealing with the above-mentioned fundamental issues. The court, hence,held that until the final hearing of the case the persons in possession of animals shall not transfer the animals outside the State nor shall they part with the elephants by way of transfer in any manner. Also, if, in the meanwhile, any ownership certificate is issued, the same shall be withdrawn. [Wildlife Rescue And Rehabilitation Center v Union of India, 2016 SCC OnLine SC 499, decided on May 4, 2016]

Case BriefsHigh Courts

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court.

In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant has abandoned the respondent and his children without reasonable cause.

The Court accepting the contentions of the applicant that the Additional Sessions Judge exceeded his jurisdiction and virtually reassessed the material on record purporting to exercise the appellate jurisdiction, when in fact, revisional jurisdiction was invoked and substituted its own findings in place of those recorded by the JMFC directed the respondent to pay maintenance amount of Rs. 600/- per month to the applicant along with a lump-sum amount of 50,000/- towards maintenance from the date of application till 1 January 2015, and to clear the arrears between 1 January 2015 to the date of this judgement within a month. [ Sou. Vaishali A. Waghmare v. Anil P. Waghmare, decided on December 10, 2015]

High Courts

Madras High Court: While considering an interesting issue that whether a woman, against whom a decree of divorce had been passed on ground of adultery, is entitled to claim maintenance under Section 125 of CrPC, the bench of S. Nagamuthu, J., held that a divorced wife, who lives in adultery is disqualified from claiming maintenance under Section 125 of CrPC. Further elaborating the Court observed that, if a wife during the subsistence of her marriage and after divorce continues to live in adultery, she loses her right to claim maintenance.

The present criminal revision challenged the Order of the Principal District and Sessions Judge who directed the petitioner to pay a sum of Rs.1,000 per month towards the respondent’s maintenance. The counsel for the petitioner, G.R. Swaminathan contended that, once the Civil Court has granted decree for divorce on the ground that the wife was living in adultery, then as per Section 125 (4) CrPC, she loses her right to claim maintenance from her former husband. Opposing the petition, G.P Rajadurai contended that the term ‘adultery’ as existing in Section 125 (4) of CrPC refers to commission of the deed while the marriage is still subsisting, whereas a divorced wife is perfectly at liberty to choose her way of sexual life. 

The Court on perusing the contentions and the concerned statutory provisions, observed that for the purposes of Chapter IX and Section 125 of CrPC, the meaning of the term ‘wife’ cannot be confined only to the wife whose marriage is in subsistence. The Court further observed that after divorce, if a wife wants to retain her right to claim maintenance, then she has to maintain the same standards of discipline that she was supposed to maintain when her marriage was in existence. The Court further stated that as much as a husband is duty bound  to provide maintenance to his wife after divorce, a wife has an equivalent duty to not to have an illicit relationship with another man. A breach of this obligation by a wife tends to disqualify her from claiming maintenance. Analyzing the issue, the Court stated that a wife suffering from the disqualification to claim maintenance on ground of adultery continues to remain disqualified for the same even after a divorce decree has been passed. M. Chinna Karuppasamy v. Kanimozhi, 2015 SCC OnLine Mad 6845decided on 16.07.2015 

Case BriefsHigh Courts

Bombay High Court: Upholding the constitutional validity of  Section 20 (3) of the Hindu Adoption and Maintenance Act, 1956, a bench comprising of A.S. Oka and A.P. Bhangale, JJ held that an unmarried daughter of a Hindu father is entitled to receive maintenance from her estranged father, even if she is not an Indian citizen and is residing in a foreign country. In the present case, the respondent daughter had filed a petition in the Family Court for monthly maintenance and a place of residence from her father. The Family Court had ruled in her favour and the father had challenged the Family Court order in the High Court.
The petitioner father had challenged the family court order on the ground that his estranged daughter had attained majority and was neither a citizen of India and nor was domiciled in India. The Court rejected the contention and held that the applicability of Hindu Adoption and Maintenance Act, 1956 does not depend upon the nationality of the child or the domicile of the child. If both the parents of the child are either Hindu or Buddhist or Jain or Sikh by religion, the said Act becomes applicable to such children.

The petitioner also challenged the constitutional validity of Section 20(3) under Articles 14 and 15, arguing that if a father is under no obligation to maintain his major son then there is no reason why he should be compelled to maintain his unmarried daughter, even after she attains majority. Dismissing the petitioner’s arguments, the Court rejected the contention that two equals were being treated unequally, and observed that unmarried sons and unmarried daughters form two completely different classes, in view of the peculiar position of the daughter, particularly unmarried daughter, in the Hindu society. Ramesh Gajanan Rege vs. Gauri Ramesh Rege, 2015 SCC OnLine Bom 2436 decided on 18-03-2015

 

Supreme Court

Supreme Court: In an exemplary decision upholding a wife’s right to receive maintenance, the division bench of Dipak Misra and P.C. Pant, JJ., held that a wife’s right to receive maintenance under Section 125 of CrPC is an absolute right, unless disqualified. The Court further reiterated that grant of maintenance to a wife is a measure of social justice and a husband who is under obligation to maintain his wife, cannot be permitted to plead his inability to do the same due to financial constraint, as long as he is able- bodied and capable of earning.

As per the facts of the present case, the appellant was compelled to flee her matrimonial home due to extreme atrocities committed upon her by the respondent (husband). Suffering from desertion and ill-treatment, the appellant filed an application for grant of maintenance at the rate of Rs.4000 per month on the foundation that husband was working on the post of Nayak in the Army and receives salary as well as other perks. The Family Court, Lucknow decided in the favour of the wife and directed the respondent to pay a sum of Rs.2500 as monthly maintenance allowance from the date of submission of application till the date of judgment and thereafter Rs.4000/- per month from the date of judgment till the date of remarriage. However the High Court reduced the maintenance allowance by 50% on the ground that the husband had retired from the service. The appellant was represented by J.N. Dubey.

The Court was highly critical of the fact that the High Court failed to appreciate the evidences with the same finesse as it was done by the Family Court. The Court pointed out that the husband took voluntary retirement from the services so that he escapes the liability of paying the allowance. The Bench also took to task the Courts for prolonging the case for over a decade, especially when it has been already reiterated by this Court that cases related to maintenance should be decided expeditiously for the benefit of the wife. The Court further observed that a woman, who has been compelled to leave her marital home, should “not be allowed to feel that she has fallen from grace”. As long as the wife is held entitled to maintenance under Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. Thus in an ex-parte decision, the Court set aside the Order of the High Court and upheld and restored the decision of the Family Court. Shamima Farooqui v. Shahid Khan, 2015 SCC OnLine SC 288, decided on 06.04.2015

 

Tribunals/Commissions/Regulatory Bodies

Family Court, Mumbai: Looking at the burden on the husband to provide maintenance to his wife even in cases where the wife is well educated and capable enough to earn for her living, a bench of S.A. Morey J gave a landmark judgment in favour of husband to curb the misuse of the provision of maintenance, and held that a wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband.

In the instant case, petitioner-wife moved an application before this Court for grant of maintenance from the respondent-husband during the pendency of petition under Section 125 CrPC. The petitioner alleged that she was forced to live separately as the respondent and his family members ill-treated and harassed her for bringing less dowry. The petitioner contended that the respondent is a successful businessman and is doing business not only in India but also in Dubai and other countries, and that his total income per month is more than Rs. 15 lakhs, and therefore considering the status of her husband, she prayed for grant of maintenance @ Rs. 2 lakhs per month.

Firstly, the Court rejected the contention of the respondent that the petitioner is not entitled to get maintenance as she is not legally wedded wife and that marriage between them was dissolved by way of talaq, and held that Section 125 CrPC itself has given definition of ‘wife’ which includes divorcee wife and makes clear that a Muslim woman who is either divorcee or who obtained divorce is entitled to get maintenance till her remarriage, and therefore respondent’s contention does not affect the right of the petitioner to claim maintenance. Secondly, the Court observed that the petitioner is well qualified, has completed degree in Food and Science Nutrician, is Post Graduate in Dietician field, had worked as a dietician with an income of Rs. 50000 per month, and has experience of working with reputed companies like Larsen and Toubro etc but at present she is not working.

The Court relied on Mamta Jaiswal v. Rajesh Jaiswal, 2000 (3) MPLJ 100, where it was held that “well qualified wife is not entitled to remain as an idle and claim maintenance from her husband”. The Court noted that the facts of the present case clearly shows that the petitioner is having good capacity to earn and therefore held that “the wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance”. Accordingly, the Court rejected the application filed by the petitioner. Firdos Mohd. Shoeb Khan v. Mohd. Shoeb Mohd. Salim Khan, decided on 20.02.2015]

High Courts

Delhi High Court: In a matrimonial dispute where the wife had filed a complaint against petitioner husband under Section 498-A IPC, the Court while holding that the complainant being an unemployed lady who is not willing to live with her husband and is dependent on her parents for her and her child’s need, directed that the petitioner will be granted anticipatory bail subject to the condition that he shall pay Rs.50,000 to the complainant wife for meeting day to day requirements of their infant child and subject to the fulfillment of above condition, in the event of arrest, the petitioner be released on bail on furnishing a personal bond of Rs.20,000. The question raised in the instant case was whether the gesture of maintaining his wife and child which should have been volunteered by the petitioner but instead it was suggested by the Court, can be termed as “buying bail” by imposing unreasonable conditions and crossing the jurisdictional limit of Section 438 CrPC.

The petitioner counsel Satish Tamta contended that in a proceeding under Section 438 CrPC, the Court cannot award maintenance to wife and child or subject the accused to unreasonable conditions, as any order imposing a condition on him to pay money would be beyond the powers conferred on the Court and would amount to “buying bail”. He said that the petitioner is ready to take back the complainant and his daughter. Rejecting the above contentions, the Court held that under Section 438 CrPC, the Court has been conferred full powers to include such conditions as it may think fit in the light of the facts of the particular case, including the conditions mentioned therein. It was concluded that a child should not suffer at the cost of warring parents hence, the Court’s suggestion to the petitioner to make provisions for the immediate needs of the child, cannot be described as buying bail or awarding maintenance. The mother being unemployed, the child’s father should perform some obligation towards her and make some provision for her so that her mother could take proper care of her. Avinash v. State, Bail Appln. 35/2014, decided on 25-07-2014

To read the full judgment, refer to SCCOnLine