@JUDGMENTTAG-ORDER
Tarlok Singh Chauhan, J. (Oral)—This petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India is directed against judgment dated 27.3.2014 passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, whereby he affirmed the order of grant of interim maintenance of Rs. 3,000/- to the respondent and two of her dependents.
2. Though this petition could have been conveniently dismissed only on the score that the petitioner till date has failed to comply with the orders passed by this Court from time to time, whereby he was directed to pay the arrears of maintenance. However, instead of dealing with the matter in a hyper technical manner, this Court would proceed to adjudicate upon the controversy by looking into the relative merits of the case.
3. The undisputed facts are that the marriage between the petitioner and respondent was solemnized in accordance with Hindu rites and customs and out of this wedlock two children, namely, Sanjna and Divyansh were born. Initially the relations between the parties remained cordial. However, after some time, there was a rift between them and the matter deteriorated to such an extent that the respondent was compelled to leave her matrimonial home along with the children.
4. Respondent filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short the `Act'') and the learned Magistrate after considering the same granted an interim maintenance of Rs. 3,000/- per month. This order came to be assailed before the learned Additional Sessions Judge, Kangra, who vide judgment dated 27.3.2014 dismissed the appeal. Both these orders have been assailed by the petitioner on the ground that the orders are contrary to the provisions of law and the maintenance awarded is otherwise excessive. In addition to that, it is claimed that the petitioner is always ready and willing to take back the respondent to the matrimonial home, as such there is no question of awarding maintenance. I have heard learned counsel for the parties and have also gone through the records of the case.
5. It is more than settled that it is not only a moral obligation, but a legal duty cast upon the petitioner to provide basic amenities of life, like food, clothes and shelter to the respondent, who is none, than his wife and also to maintain his two children living with her.
6. The obligation for Hindu male to maintain his wife is not a modern day concept but it existed even under the Shastric Hindu Law. According to the old Shastric Hindu Law, marriage between two Hindus is a sacrament a religious ceremony which results in a sacred and a holy union of man and wife by virtue of which the wife becomes a part and parcel of the body of the husband. She is, therefore, called `Ardhangani''. It is on account of this status of a Hindu wife, under the Shastric Hindu law, that a husband was held to be under a personal obligation to maintain his wife and when he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties.
Mulla in his classic work on "Hindu Law," 14th Edn., dealing with the characteristic of the right of maintenance of a Hindu wife observes:
"A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self-acquired."
Mayne in his Treatise on "Hindu Law and Usage" 11th Edn., while trancing the history and origin of the right of maintenance of a Hindu wife says:-
"The maintenance of a wife by her husband is, of course, a matter of personal obligation, which attaches from the moment of marriage."
7. The law on the subject has been elaborately dealt with by the Hon''ble Andhra Pradesh High Court in Kota Varaprasada Rao and another v. Kota China Venkaiah and others AIR 1992 AP 1, wherein it has been held as follows:
"8. The oldest case decided on the subject is one in Khetramani Dasi v. Kashinath Das, (1868) 2 Bengal LR 15. There, the father-in-law was sued by a Hindu widow for maintenance. Deciding the right of the widow for maintenance, the Calcutta High Court referred to the Shastric law as under:
"The duty of maintaining one''s family is, however, clearly laid down in the Dayabhaga, Chapter II, Section XXIII, in these words: ''The maintenance of the family is an indispensable obligation, as Manu positively declares.'' Sir Thomas Strange in his work on Hindu Law Vol. I page 67, says:
''Maintenance by a man of his dependants is, with the Hindus, a primary duty. They hold that he must be just, before he is generous, his charity beginning at home; and that even sacrifice is mockery, if to the injury of those whom he is bound to maintain. Nor of his duty in this respect are his children the only objects, co-extensive as it is with the family whatever be its composition, as consisting of other relations and connexions, including (it may be) illegitimate offspring. It extends according to Manu and Yajnavalkya to the outcast, if not to the adulterous wife; not to mention such as are excluded from the inheritance, whether through their fault, or their misfortune; all being entitled to be maintained with food and raiment."
At page 21, the learned Judges have also referred to a situation where there is nothing absolutely for the Hindu widow to maintain herself from the parents-in-law''s branch by referring to the following texts from NARADA:
"In Book IV, Chapter I Section I, Art. XIII of Celebrooke''s Digest, are the following texts from NARADA:
''After the death of her husband, the nearest kinsman on his side has authority over a woman who has no son; in regard to the expenditure of wealth, the Government of herself, and her maintenance, he has full dominion. If the husband''s family be extinct, or the kinsman be unmanly, or destitute of means to support her, or if there is no Sapindas, a kinsman on the father''s side shall have authority over the woman; and the comment on this passage is: "''Kinsman on the husband''s side; of his father''s or mother''s race in the order of proximity. ''Maintenance'' means subsistence. Thus, without his consent, she may not give away anything to any person, nor indulge herself in matters of shape, taste, small, or the like, and if the means of subsistence be wanting he must provide her maintenance. But if the kinsman be unmanly (defecient in manly capacity to discriminate right from wrong) or destitute of means to support her, if there be no such person able to provide the means of subsistence, or if there be no SAPINDAS, then anyhow, determining from her own judgment on the means of preserving life and duty, let her announce her affinity in this mode : ''I am the wife of such a man''s uncle; ''and if that be ineffectual, let her revert to her father''s kindred; or in failure of this, recourse may be had even to her mother''s kindered." (Emphasis supplied)
In Book III, Chapter II, Section II, Art. CXXII, of Colebrooke''s Digest, we have the following texts and comments:
"She who is deprived of her husband should not reside apart from her father, mother, son, or brother, from her husband''s father or mother, or from her maternal uncle; else she becomes infamous."
As per the above texts and comments, a Hindu widow if the parents-in-law''s branch is unmanly or destitute of means to support her is entitled to be with the father or the kinsman on the father''s side.
9. In Janki v. Nand Ram, (1889) ILR 11 All 194 (FB), a Hindu widow after the death of her father-in-law sued her brother-in-law and her father-in-law''s widow. The Full Bench of the Allahabad High Court held that the father-in-law was under a moral, though not legal, obligation not only to maintain his widowed daughter-in-law during his life time, but also to make provision out of his self-acquired property for her maintenance after his death; and that such moral obligation in the father became by reason of his self-acquired property having come by inheritance into the hands of his surviving son, a legal obligation enforceable by a suit against the son and against the property in question. While so deciding, the learned Judges at page 210 made a reference to a passage from Dr. Gurudas Banerjee''s Tagore Law Lectures, thus:
"We have hitherto been considering the claim of a widow for maintenance against the person inheriting her husband''s estate. The question next arises how far she is entitled to be maintained by the heir when her husband leaves no property and how far she can claim maintenance from other relatives. The Hindu sages emphatically enjoin upon every person the duty of maintaining the dependant members of his family. The following are a few of the many texts on the subject:--
MANU: ''The ample support of those who are entitled to maintenance is rewarded with bliss in heaven; but hell is the portion of that man whose family is afflicted with pain by his neglect: therefore let him maintain his family with the utmost care.''
NARADA: ''Even they who are born, or yet unborn and they who exist in the womb, require funds for subsistence; deprivation of the means of subsistence is reprehended.''
BRIHASPATI: ''A man may give what remains after the food and clothing of his family, the giver of more who leaves his family naked and unfed, may taste honey at first, but still afterwards find it poison.'' "
The text of MANU as added reads:
"He who bestows gifts on strangers, with a view to worldly fame, while he suffers his family to live in distress, though he has power to support them, touches his lips with honey, but swallows poison; such virtue is counterfeit: even what he does for the sake of his future spiritual body, to the injury of those whom he is found to maintain, shall bring him ultimate misery both in this life and in the next."
Having so quoted the texts, the Full Bench based its judgment on the proposition:
"......under the Hindu law purely moral obligations imposed by religious precepts upon the father ripen into legally enforceable obligations as against the son who inherits his father''s property."
10. In Kamini Dassee v. Chandra Pode Handle, (1890) ILR 17 Cal 373, it is held by the Calcutta High Court that the principle that an heir succeeding to the property takes it for the spiritual benefit of the late proprietor, and is, therefore, under a legal obligation to maintain persons whom the late proprietor was morally bound to support, has ample basis in the Hindu law of the Bengal School and accordingly decreed the suit for maintenance laid by a widowed brother against her husband''s brothers.
11. In Devi Prasad v. Gunvati Koer, (1894) ILR 22 Cal 410, deciding an action brought for maintenance by a Hindu widow against the brothers and nephew of her deceased husband after the death of her father-in-law, the Calcutta High Court held that the plaintiff''s husband had a vested interest in the ancestral property, and could have, even during his father''s life time, enforced partition of that property, and as the Hindu law provides that the surviving coparceners should maintain the widow of a deceased coparcener, the plaintiff was entitled to maintenance.
12. In Bai Mangal v. Bai Rukmini, (1899) ILR 23 Bom 291, the statement of law of MAYNE that
"After marriage, her (meaning the daughter''s) maintenance is a charge upon her husband''s family, but if they are unable to support her, she must be provided for by the., family of her father."
Was understood to have been one of monetary character than laying down any general legal obligation. The learned Judge, Ranede, J., after examining all the authorities has broadly laid down the law, as he understood, thus:
"In fact, all the text writers appear to be in agreement on this point, namely, that it is only the unmarried daughters who have a legal claim for maintenance from the husband''s family. If this provision fails, and the widowed daughter returns to live with her father or brother, there is a moral and social obligation, but not a legally enforceable right by which her maintenance can be claimed as a charge on her father''s estate in the hands of his heirs." (page 295).
13. However, the same learned Judge, Ranede, J., in a later case in Yamuna Bai v. Manubai, (1899) ILR 23 Bom 608, expressed his absolute concurrence with the law laid down by the Allahabad High Court in Janaki''s case, (1889 ILR 11 All 194) (supra), as regards the right of the widow of a predeceased son to maintenance against the estate of the deceased father-in-law in the hands of his heirs.
14. The view of Ranede, J., in Bai Man-gal''s case, (1899 ILR 23 Bom 291) (supra), was further conditioned by Ammer Ali, J., in Mokhoda Dassee v. Nundo Lall Haldar, (1900) ILR 27 Cal 555, by holding that the right of maintenance is again subject to the satisfaction of the fact that the widowed sonless daughter must have been at the time of her father''s death maintained by him as a dependant member of the family.
15. But, both the views of Ranede, J., in Bai Mangal''s case, (1899 ILR 23 Bom 291) (supra), and Ameer Ali, J., in Mokhode Dassee''s case, (1900 ILR 27 Cal 555) (supra), did not find acceptance of A. K. Sinha, J., of the Calcutta High Court in Khanta Moni v. Shyam Chand,. The learned Judge held that a widowed daughter to sustain her claim for maintenance need not be a destitute nor need be actually maintained by the father during his life time... All that she is required to prove to get such maintenance, the learned Judge held, is that at the material time she is a destitute and she could not get any maintenance from her husband''s family."
"19. In Appavu Udayan v. Nallamrnal, AIR 1949 Madras 24, the Madras High Court has to deal with the rights of daughter-in-law against her father-in-law and his estate in the hands of his heirs. There it is held that the father-in-law is under a moral obligation to maintain his widowed daughter-in-law out of his self-acquired property and that on his death if his self acquired property descends by inheritance to his heirs, the moral liability of the father-in-law ripens into a legal one against his heirs.
20. A Full Bench of this High Court in T. A. Lakshmi Narasamba v. T. Sundaramma, AIR 1981 Andh Pra 88 held:
"The moral obligation of a father-in-law possessed of separate or self-acquired property to maintain the widowed daughter-in-law ripens into a legal obligation in the hands of persons to whom he has either bequeathed or made a gift of his property.
Under the Hindu law there is a moral obligation on the father-in-law to maintain the daughter-in-law and the heirs who inherit the property are liable to maintain the dependants. It is the duty of the Hindu heirs to provide for the bodily and mental or spiritual needs of their immediate and nearer ancestors to relieve them from bodily and mental discomfort and to protect their souls from the consequences of sin. They should maintain the dependants of the persons of property they succeeded. Merely because the property is transferred by gift or by will in favour of the heirs the obligation is not extinct. When there is property in the hands of the heirs belonging to the deceased who had a moral duty to provide maintenance, it becomes a legal duty on the heirs. It makes no difference whether the property is received either by way of succession or by way of gift or will, the principle being common in either case."
21. It is rather pertinent to notice here that the view of Ranede, J., in Bai Mangal''s case, (1899 ILR 23 Bom 291) (supra) has been dissented from specifically by the Full Bench of this High Court."
8. It can never be forgotten that inherent and fundamental principle behind section 12 of the Act is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands that there has to be some acceptable arrangements so that she can sustain herself. Sustenance does not mean and can never allow to mean a mere survival.
9. A woman, who is constrained to leave the matrimonial home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. She cannot be compelled to become a destitute or a beggar.
10. It is next contended by the petitioner that he is only working as labourer and cannot, therefore, afford to maintain his wife. Similar issue came up before the Hon''ble Supreme Court in Shamima Farooqui v. Shahid Khan, JT 2015 (3) SC 576, wherein it has been held as follows:-
"15. .........Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife''s right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. [1997 (7) SCC 7] has held as follows:-
"The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate."
16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai, 2008 (2) SCC 316, it has been ruled that:-
"Section 125 CrPC 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. Veena Kaushal 1978 (4) SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. 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 wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, JT 2005 (3) SC 164".
16.1. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.
17. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash AIR 1968 Delhi 174 wherein it has been opined thus:-
"An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him."
11. From the aforesaid enunciation of law, it is absolutely clear that once the husband is an able-bodied young man capable of earning sufficient money, he cannot simply deny his legal obligation of maintaining his wife.
12. It has to be remembered that when the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm for which she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. (Ref: Shamima Farooqui v. Shahid Khan supra).
13. Now adverting to the quantum of maintenance, it would be noticed that the court below has awarded an interim maintenance of Rs. 3000/-, but that is not for the respondent alone but has been awarded to three persons, i.e. respondent and her two children i.e. a maintenance of Rs. 33/- per person per day. This court cannot be oblivious to the fact that apart from sustenance, respondent and her children would be incurring some expenses for their upkeep, purchase of clothes, shoes, utensils etc. etc.
14. Similar issue came up for consideration before this Court in Civil Revision No.75 of 2015 titled as Dinesh Mohan v. Kavita @ Kamlesh, decided on 28th September, 2015, wherein it was observed as under:
"8. In the matter of making an order of interim maintenance, the Court is to be guided by the criteria provided in the Section itself namely the means of the parties and also after taking into account incidental and other relevant factors like social status, the background from which the parties come from and the economical dependence of the wife/child upon the husband/father. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the Court may not be necessary. But, at the same time, the Court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mention in the statute.
9. A duty is fastened upon the Court to award maintenance pendente lite in such a manner so that spouse and the child can live with dignity according to their social status. Factors which can be culled out as required to be kept in mind while awarding interim maintenance are as under:-
(i) Status of the parties;
(ii) Reasonable wants of the claimant;
(iii) The income and property of the claimant;
(iv) Number of persons to be maintained by the husband;
(v) Liabilities, if any, of the husband;
(vi) The amount required by the wife to live a similar lifestyle as she enjoyed in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife.
10. The learned Court below accorded the following reasons for awarding the maintenance and litigation expenses.
"5. Respondent-wife has stated that she has no independent source of income. However, she has stated that she is employed in MNREGA and getting less than Rs. 1,500/- per month. She has school going minor child with her, who is studying in 4th standard. She is unable to support herself and her child due to this meagre income, which she is earning being employed under MNREGA. Petitioner-husband is stated to have shop at Main Bazar, Chandi and having goods carrying vehicles. This means apparently that husband has sufficient income.
6. Thus, having regard to the facts and circumstances of the case, coupled with the discussion aforesaid, it is deemed just and fit to award maintenance pendente lite to respondent-wife @ Rs. 7,000/- per month along with litigation expenses i.e. Rs. 10,000/-. Accordingly, the petition stands disposed of. Any observations made herein above are without prejudice to the merits of the case. The file, after due completion, be tagged with the main file."
11. No doubt, the findings recorded by the learned Court below are not happily worded, but, this Court cannot ignore the fact that the award of maintenance is not solely for the benefit of the respondent herein, but is also for the benefit of the minor child, who admittedly is studying in a Public School. Even if, the maintenance of Rs. 100/- per day is considered as sufficient for the purpose of sustenance alone, even then the maintenance for two persons would work out to Rs. 6,000/- per month.
12. That apart, the Court cannot also be oblivious to the fact that apart from sustenance, the respondent and her child would be incurring some other expenses for their upkeep, purchase clothes, shoes, utensils etc. etc. Once the minor child is school going, then there would be additional expenses to be incurred towards admission fees, tuition fees, school uniform etc. and, therefore, the additional amount of Rs. 1,000/- per month i.e. roughly Rs. 33/- per day for two persons can by no stretch of imagination in the present day cost of living, growing inflation and purchasing power of rupee, be termed to be a luxury. The interim maintenance not only includes educational expenses of the child, but it is also required to ensure that the child is brought up keeping in view the status and life-style of the parents.
15. It has to be remembered that the object of providing maintenance is to prevent vagrancy by compelling the husband to support his wife and children, who are unable to support themselves. Most of these provisions are not penal in nature, but are only intended for enforcement of the duty, a default, which may lead to vagrancy. The further object underlying maintenance is that neither party may suffer by his/her inability to conduct the proceedings for want of money or expenses.
16. Having failed on all scores, the petitioner would lastly contend that he is ready and willing to take the respondent back to the matrimonial home.
17. Even this submission is equally without force for the simple reason that this Court has been watching very carefully and patiently the conduct of the petitioner, who till date, as observed earlier, has not even cared to deposit a single penny towards the arrears of maintenance. This offer is made only to get rid of the order of maintenance.
18. The petitioner is a liar and his intention is to deceive the court. This observation is made on the basis of undertaking given by him to this court on 31.10.2014, whereby he undertook to open bank account in the name of his two minor children and further undertook to open bank account of Rs. 15,000/- each in the name of his two minor children and had also undertaken to make regular deposits in these accounts. Not only this, he had further undertaken to take back the respondent to the matrimonial home on 9.11.2014 and assured the court that he will not give rise to any occasion which may call for interference by this court. This would be evident from the order passed on 31.10.2014, which reads thus:
"The parties have compromised the matter. The petitioner undertakes to open bank accounts in the name of his two minor children and would remit a sum of Rs. 15,000/- in these accounts within a fortnight from today and keep on depositing in future. He also undertakes to take the respondent back to her matrimonial home on Sunday i.e. 9.11.2014 and assures this Court that he will not give rise to any occasion, which may call for interference by this Court. However, the Court like to observe the conduct of the parties, therefore, is not disposing the case. In view of statements of the parties, further proceedings in the Court of learned Judicial Magistrate, Ist Class, (2), Nurpur, District Kangra in Cr. Case No. 17- III/2011 are stayed."
19. As observed earlier, petitioner did not comply with any of the aforesaid undertakings and thus has taken this court for a ride. More importantly, the petitioner after giving aforesaid undertaking, even managed to get further proceedings in the court below stayed, which proceedings unfortunately continue to be stayed till date.
20. The conduct of the petitioner and the dubious method adopted by him in getting the proceedings stayed, is highly reprehensible and his action, in fact, amounts to contempt of court. However, taking into consideration the fact that this case is one relating to delicate human relationship, this court at this stage, refrains from initiating such proceedings, but needless to say that in case the petitioner fails to comply with the undertaking as given to this court on 31.10.2014, on or before 15.8.2016, the trial Magistrate shall inform this court so that proceedings under the contempt of court can be initiated against the petitioner.
21. It is instances like this, which undermine the faith of the people in the justice delivery system. After all people have faith in the justice delivery system. The hallmark whereof is that justice should not only be done, but must also appears to be done. If a trial does not appear to have done justice to either of the parties, the people would lose faith in the judicial process. Judiciary is the bed rock and handmaid of democracy. If people lose faith in justice parted by a Court of law, the entire democratic set up would crumble down.
22. Unfortunately it is the respondent and her children who are at the receiving end and, therefore, their faith in the laws and legal system has to be re-assured and re-strengthened. The petitioner after giving undertaking to this court cannot get away so as to give an impression to the respondent or the general public that he is either above the law or there is no rule of law. Any act, which undermines the faith of the people in the judicial system, harms the rule of law. Therefore, before the petitioner can be heard in the matter, he will have to comply with the undertaking given by him on 310.2014 within the aforesaid stipulated time.
23. For the reasons stated above, there is no merit in this petition and the same is accordingly dismissed.
24. However, before parting, it is made clear that before the petitioner is heard in the matter, he will have to comply with the undertaking with respect to the opening of accounts of his minor children and pay the entire arrears of maintenance on or before 15th August, 2016, failing which trial court will make a reference to this court so as to enable it to initiate contempt proceedings against the petitioner. This would be in addition to the other coercive steps which may be required to be taken by the learned trial court to enforce the order of interim maintenance.
