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isak Chanda Palkar Vs. Nyamatbi and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 2075 of 1976
Judge
Reported in1980CriLJ1180; 1980MhLJ287
ActsConstitution of India - Article 141; Indian Penal Code (IPC), 1860 - Sections 41 and 42; Code of Criminal Procedure (CrPC) , 1908 - Sections 2(y), 5, 125 and 127
Appellantisak Chanda Palkar
RespondentNyamatbi and Others
Excerpt:
criminal - maintenance - sections 41 and 42 of indian penal code, 1860, article 141 of constitution of india and sections 2 (y), 5, 125 and 127 of criminal procedure code, 1973 - application for maintenance filed after commencement of code - additional rights conferred upon divorcee not inconsistent with rights under personal law - nothing in shariat act precludes maintenance application by destitute muslim wife - divorce during pendency of application not a valid ground to deny maintenance - evidences shows that spouses were living apart due to refusal of husband - husband has sufficient means of earning - application allowed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category.....dharmadhikari, j.1. it is an admitted position that respondent nyamatbi was married to the petitioner on 4th september 1953. it is also an admitted position that thereafter the petitioner remarried and had a second wife. it appears from the record that the respondent-wife was living with her parents and the petitioner was paying rs. 30/- per month to her towards wards maintenance. after coming into force of the new cr.p.c. in 1974 the respondent filed an application under section 125 of the code on or about 16th of april 1974. as soon as this application was filed, the petitioner husband pronounced divorce on 14th june 1974 and also offered to pay an amount of rs. 2,500/- towards agreed mehr and rs. 150/- as maintenance for iddat period of three months. this amount was sent by the money.....
Judgment:

Dharmadhikari, J.

1. It is an admitted position that respondent Nyamatbi was married to the petitioner on 4th September 1953. It is also an admitted position that thereafter the petitioner remarried and had a second wife. It appears from the record that the respondent-wife was living with her parents and the petitioner was paying Rs. 30/- per month to her towards wards maintenance. After coming into force of the new Cr.P.C. in 1974 the respondent filed an application under section 125 of the Code on or about 16th of April 1974. As soon as this application was filed, the petitioner husband pronounced divorce on 14th June 1974 and also offered to pay an amount of Rs. 2,500/- towards agreed Mehr and Rs. 150/- as maintenance for Iddat period of three months. This amount was sent by the money order. The said money order was refused by the respondent wife some time on 17th of July 1974. Thereafter the petitioner deposited the amount of Rs. 2,650/- in the Court on 13th August, 1974.

2. In the application filed by the wife it was contended by her that the petitioner husband is carrying on business of scrap and was a rich person. He had constructed a building by spending one lac of rupees and he gets Rs. 2000/- per months as rent from the tenants. She further stated that the husband had three other buildings in Satara City and he gets rent from the tenants of these buildings also and that he also carries on business of truck by which he is getting an income of Rs. 2000/- per month. Thus according to the wife total income of her husband was about Rupees 7000/- per month. In the application itself she stated that she had no means of maintenance and she is solely depending upon her brother for her maintenance. She requires about Rs. 150/- for meeting two ends and Rs. 50/- per month for her clothes. Thus, in substance she claimed Rs. 200/- per month towards her maintenance. The husband contested the said application on various grounds. According to him the relations between him and the wife were not cordial and that she never cohabited with him. He also stated that for about last 20 years he has no contact with his wife and he has already divorced her on 14th of June 1974 as per the personal law. He then contended that under law after divorce a wife is not entitled to any maintenance from her husband. He has denied that he is getting Rs. 7000/- per month as income. He then stated that the wife is getting Rs. 100/- per month from her own property. According to him he has also paid her maintenance up to May 1974, and in any case she is not entitled to a maintenance of more than Rs. 30/- per month.

3. In support of her case the respondent Nyamatbi examined herself and two witnesses namely Yasin Ahmed and Ranglal. The petitioner Isak Palkar examined himself and witnesses Fazul Huq and Mehabooba in support of his contentions. After appreciating all the evidence on record the learned Judicial Magistrate, First Class came to the conclusion that the wife has proved that the husband has refused or neglected to maintain her. He also recorded a finding that the husband has divorced the wife on 14th June 1974. He further recorded a finding that the husband has paid the stipulated Mehr and Iddat amount to the applicant wife as required under the Mahomedan Law. He then came to the conclusion that the wife will be entitled to maintenance only up to 14th September, 1974 i.e. till the expiry of Iddat period and, therefore, ultimately the Judicial Magistrate, First Class, partly allowed the application filed by the wife and granted her maintenance at the rate of Rs. 200/- per month from 16th April, 1974 up to 14th of September, 1974. Being aggrieved by this order both the parties filed revision petitions which were heard and decided by the learned Additional Sessions Judge, Satara by his order dated 1st of June 1974. The learned Sessions Judge agreed with the finding recorded by the trial Court that the wife has proved that the husband neglected or refused to maintain her though he had sufficient means to do so. He also confirmed the finding recorded by the trial Court that it is also proved that he had given a divorce on 14th June 1974. He also came to the conclusion that the wife is entitled to maintenance at the rate of Rs. 200/- per month even after the period of Iddat. In this view of the matter the learned Additional Sessions Judge allowed the revision petition filed by the wife and dismissed the petition filed by the husband. It is this order of the learned Additional Sessions Judge, Satara, which is challenged by the petitioner husband in this criminal application under Art. 227 of the Constitution of India.

4. It appears that initially this criminal application was also referred to the Full Bench along with Criminal Application No. 2899 of 1976 in view of the apparent conflict in the Division Bench decisions of this Court as reported in Khurshid Khan Amin Khan v. Husnabanu Mohamad Shaikh 1976 M LJ 628 : 1976 Cri LJ 1584 and Mehabubabi Nazir Shaikh v. Nazir Farid Shaikh 1976 M LJ 631 : 1977 Cri LJ 391 and Ruksana Parvin v. Shaikh Mohammad Hussein . By the time the matter came up for hearing before the Full Bench the Supreme Court had an occassion to consider the ambit and scope of S. 125 of the Code of Criminal Procedure in Bai Tahira v. Ali Hussein : 1979CriLJ151 . In view of this decision of Supreme Court the Full Bench observed as under :

'Having considered the provisions of Sections 125 and 127 of the new Code the Supreme Court has laid down the correct legal approach to these provisions in paragraphs 11 and 12 of the judgment. Since the very question, which has been referred to us, has been covered by the Supreme Court decision, it is not now necessary for this Bench to re-examine the proposition.

Some of the learned Counsel appearing for the petitioners wanted to argue before us that certain aspects of law or the provisions of personal law have not been placed before the Supreme Court and, therefore, they sought special approach to suggest in either considering the proposition on merits or by way of interpretation of the Supreme Court judgment. All these matters can be properly addressed to appropriate Benches before whom these petitions are pending. Once the central point is covered by the Supreme Court, we are bound by the interpretation placed by the Supreme Court, and the duty of the High Court is to apply its ratio to the facts and circumstances in each case coming up before it. This being the legal position we think that the Reference need not be answered by us.'

5. This is how the matter is again placed before us for final hearing. Shri Hussein appearing for the husband contended before us that the authorities below have not taken into consideration the fact that the husband and wife were living separate by mutual consent or agreement and as per the said agreement the husband was paying Rs. 30/- per month to the wife regularly. The Courts below have also not taken into consideration the fact that on the date of the application the divorce had not taken place and, therefore, on that date the application itself was not maintainable. He further contended that the husband had made a provision for maintenance of his wife by paying Rupees 30/- per month and, therefore, this is not a case wherein it could be said that the husband had either neglected or refused to maintain his wife. He further contended that from the evidence on record it is clear that the wife was able to maintain herself from the income of her ancestral property and on that ground also the application filed by her was not maintainable. According to Shri Hussein in view of the personal law governing the parties viz. Shariat Act 1937 the wife was not entitled to claim any maintenance, after the period of Iddat. According to the learned Counsel a specific provision has been made therein for payment of maintenance to the wife and that too subject to the terms and conditions referred to in the said Act. S. 125 of the Cr.P.C. is obviously in conflict with the said provisions of the Shariat Act and therefore Shariat Act being a special law its provisions are saved and shall override the general provisions incorporated in the Code of Criminal Procedure and particularly of Sections 125 and 127 of the said Code. In this context Shri Hussein has drawn our attention towards the S. 5 of the Code and has contended that by this very provisions of Shariat Act have been specifically saved. Hence in substance it is his contention that apart from the provisions of Shariat Act a Muslim wife is not entitled to claim any additional maintenance under Section 125 of the Cr.P.C. He has also contended that the quantum of maintenance as fixed by the Courts below is also wholly unwarranted by the evidence on record.

6. On the other hand it is contended by Shri A. P. Shah learned counsel appearing for the wife that in view of the authoritative pronouncement of the Supreme Court in Bai Tahira's case, : 1979CriLJ151 the contentions now raised by Shri Hussein do not survive. It is also contended by him that there is no apparent conflict between the two provisions viz. Shariat Act and the Code of Criminal Procedure because they operate in altogether different fields and hence it is not correct to say that the application filed by the wife under Section 125 of the Code of Criminal Procedure was not maintainable. So far as the quantum of maintenance is concerned, it is contended by Shri Shah that after considering the evidence adduced by both the sides, both the Courts below have recorded a concurrent finding of fact that the respondent wife needs Rs. 200/- per month for her maintenance. A stray sentence to which a reference is made by Shri Hussein from the evidence of the wife, if read in its context, it is quite clear that she had claimed Rs. 150/- towards bare maintenance which is apart from the claim for clothing etc. for which she has made a separate claim of Rs. 50/- per month. Therefore, taking a cumulative view of the whole evidence regarding the total claim made by her, the Courts below were right in granting Rs. 200/- per month towards maintenance.

7. Shri Solkar, learned public prosecutor appearing for the State contended before us that S. 5 of the Cr.P.C. has no application to the provisions of the Shariat Act. According to Shri Solkar in S. 5 an expression 'any special or local law for the time being in force' is used in a different context. These words or expressions are not defined in the Cr.P.C. itself, but by virtue of S. 2(y) of the Code it will have to be given a meaning as assigned to it in the Indian Penal Code. Sections 41 and 42 of the I.P.C. define these expressions. Obviously we are not concerned in this case with local which is a law applicable only to a particular part of India but even the term 'special law' as defined in S. 41 of the I.P.C. means a law applicable to a particular subject. According to Shri Solkar, Shariat Act is not special law within the meaning of S. 5 of the Cr.P.C. read with Section 41 of the I.P.C. He also contended that this position is clear if the said expression is read in contradistinction with the words used in sub-section (3) of S. 127 of the Code viz. any customary or personal law. Therefore, in substance it is the contention of Shri Solkar that even apart from the provisions of Shariat law, a Muslim divorced wife, if otherwise eligible, is entitled to claim maintenance under S. 125 of the Cr.P.C.

8. Therefore, for properly appreciating the contentions raised before us, which are to some extent based solely on the decision of the Supreme Court in Bai Tahira's case, : 1979CriLJ151 it will be worthwhile to make a detailed reference to the main decision of the Supreme Court. It may be noted at this stage that even prior to this decision, the Supreme Court had an occassion to interpret and construe the provisions of S. 125 of the Cr.P.C. in Ramesh v. Vina, : 1979CriLJ3 wherein it was observed by the Supreme Court that this provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Art. 15(3) reinforced by Art. 39. Then in Bai Tahira's case the Supreme Court has in terms dealt with the case of a divorced Muslim lady and has observed as under :-

'The meaning of meanings is derived from values in a given society and its legal system, Art. 15(3) has compelling compassionate relevance in the context of Section 125 and the benefit of doubt if any, in statutory interpretation belongs to the ill-used wife and the derelict divorce. The social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament in keeping with Art. 15(3) and deliberate by design made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in Art. 39 is part of social and economic justice specified in Art. 38 fulfilment of which is fundamental to the governance of the country (Art. 37). From this coign of vantage 'we must view the printed text of the particular Code.'

Then while dealing with the submission about their living separately by mutual consent the Supreme Court observed, 'we see hardly any force in this plea. The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill. Do divorcees have to prove mutual consent to live apart Divorce painfully implies that the husband orders her out of the conjugal home. If law has nexus with life this arguments is still-born.'

'The contractual limb of the contention must easily fall. The consent decree of 1962 resolved all disputes and settled all claims then available. But here is a new statutory right created as a projection of public policy by the Code of 1973, which could not have been in the contemplation of the parties when in 1962 they entered into a contract to adjust their then mutual rights. No settlement of claims which does not have the special statutory right of the divorce under Section 125 can operate to negate that claim.'

9. Then while dealing with the provision of Sections 125 and 127 in the context of payment of Mehar money as customary discharge, the Supreme Court has opined;

'But what was the amount of mehar Rs. 500/- interest from which could not keep the woman's body and soul together for a day even in that city where 40% of the population are reported to live on payments, unless she was ready to sell her body and give up her soul The point must be clearly understood that the scheme of the complex of provisions in Chap. IX has a social purpose. III-used wives and desparate divorces shall not be drawn to material and moral dereliction to seek sanctuary in streets. This traumatic horror animates the amplitude of S. 127. Where the husband by customary payment at the time of divorce, has adequately provided for the divorcee, a subsequent series of recurrent doles is contra-indicated and the husband liberated. This is the ideological interpretation, the sociological decoding of the text of S. 127. The key-note thought is adequacy of payment which will take reasonable care of the maintenance.'

'The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate the rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorces should not derive a double benefit. If the first payment by way of Mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under Section 125 not mathematically but fairly then S. 127(3)(b) subserves the goal and relieves the obliger, not pro tanto but wholly. The purpose of the payment 'under any customary or personal law' must be to obviate destitution of the divorce and to provide her with where withal to maintain herself. The whole scheme of S. 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the customs of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. The proposition, therefore, is that no husband can claim under Section 127(3)(b) absolution from his obligation under Section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance'.

10. We have quoted this decision of the Supreme Court in extenso because the main argument of Shri Hussein in this petition is based on this decision. This decision is obviously binding upon us. According to Shri Hussein the contentions raised by him before us were not raised before the Supreme Court when the Supreme Court laid down the law in Bai Tahira's case, : 1979CriLJ151 . He also contended that the Supreme Court has also not taken into consideration the provisions of S. 5 of the Cr.P.C. or the provisions of Shariat Act of 1937 and hence according to Shri Hussein the said decision is not binding and the whole question is open for reconsideration. In our opinion this will not be the correct position.

11. To say the least it is not open to High Court to whittle down the import of the Supreme Court decision by drawing fine and subtle distinctions. If in substance the provisions of the law considered by the Supreme Court are the same as the one under consideration of this Court, then the Supreme Court decision must be applied. It is well settled that in view of the provisions of Art. 141 of the Constitution even obiter dicta of the Supreme Court is binding upon the subordinate Courts. Therefore, if the Supreme Court had an occasion to consider the true scope of S. 125 of the Cr.P.C. in the context of the claim made by a Muslim divorcee, then the law laid down by the Supreme Court in that behalf would naturally bind the High Court. It will not be open to the High Court to ignore the same only because the learned Counsel feels that the relevant provisions were not brought to the notice of the Supreme Court. It cannot be forgotten that in view of the provisions of Article 141 of the Constitution the law declared by the Supreme Court is binding on all Courts within the territory of India.

12. It cannot also be forgotten that the case which came up for consideration before the Supreme Court was of a Muslim divorced woman wherein the question of personal law was in terms raised. Therefore, the Supreme Court has considered the scope and ambit of S. 125 of the Cr.P.C. in the context of the personal law governing the relationship of the parties. In para 10 of the judgment the Supreme Court has observed that by S. 125 of the Cr.P.C. a new statutory right is created as projection of public policy. Therefore, in substance it has been held by the Supreme Court that by S. 125 of the Cr.P.C. an altogether new statutory right has been created and for the enforcement of the said right it is open to a Muslim divorcee to file an application for maintenance. It cannot also be forgotten that the Muslim personal law viz. Shariat Act of 1937 does not down any special rule of criminal procedure but merely lays down certain norms or rules as regards applicability of Muslim personal law to Muslims. It cannot be disputed that the right conferred by Shariat Act, 1937 could be enforced by the parties apart from the provisions of the Code of Criminal Procedure. Therefore, in our opinion Section 5 of the Code of Criminal Procedure has no application to such a case. S. 5 of the Code reads as under :

'5. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred or any special form of procedure, prescribed, by any other law for the time being in force.'

According to Shri Hussein Shariat Act of 1937 is a special law within the meaning of S. 5 of the Code and hence the provisions of Section 125 of the Code are not applicable to the persons who are governed by the Shariat Act, 1937. The expression 'special law' is not defined in the Code of Criminal Procedure and therefore, will have to be given the meaning as assigned to the said expression in S. 41 of the I.P.C. in view of S. 2(y) of the Cr.P.C. S. 41 of the I.P.C. defines 'special law' as meaning a law applicable to a particular subject. As already observed Muslim personal law viz. Shariat Act, 1937 does not lay down any special rules of criminal procedure but merely makes a provision as regards the applicability of Muslims personal law to Muslims. Under explanation to S. 125 of the Cr.P.C. a divorced wife has been given a right to claim maintenance till she does not get married again. According to the provisions of the Mahomedan law a divorced wife has got a right to claim maintenance only up to the expiry of the period of Iddat and not beyond that period; whereas Section 125 of the Cr.P.C. has granted an additional right to a divorced Muslim woman for receiving maintenance allowance even beyond the period of Iddat till such time as she has not married again after divorce. This additional benefit or right does not conflict with the right which is already conferred upon her under Muslim personal law. By S. 125 of the Code an additional right or benefit is conferred upon a Muslim divorcee and the said provision is independent of personal law or any other customary law governing to the parties. In these circumstances the Shariat Act or any other personal law cannot the said right nor the provisions of the said Act can be imported into S. 125 of the Cr.P.C. for defeating the right conferred by S. 125 of the Code.

13. If the provisions of the Shariat Act or the personal law are imported in the provisions of the Cr.P.C. dealing with the maintenance for a destitute wife, then the very purpose of the legislation will be frustrated. This provision has created and conferred a new statutory right upon a destitute wife. As observed by the Supreme Court in Bai Tahira's case : 1979CriLJ151 and in particular para 7 thereof, this provision was made by the Parliament keeping in view the provisions of Art. 15(3) with deliberate design to make a special provision to help women in distress and therefore the protection is to be viewed in the light of Art. 38 as a part of social and economic justice. S. 5 of the Code which is a saving clause and can only save what is acquired or already provided for but cannot prohibit or debar legislature from creating or conferring a new right by a later legislation. The provisions of the Code providing for maintenance to the destitute wife irrespective of the caste, creed or religion is also in tune with the mandate of Art. 44. We do not think that there is anything in the Shariat Act or S. 5 of the Cr.P.C. which precludes the application of S. 125 of the Cr.P.C. in case of a destitute Muslim wife. It cannot also be forgotten that the establishment of a secular is the aim and goal of the Indian Constitution. Therefore, in the field which is secular or non-religious, laws will have to be common for all the citizens of India and that is what has been done by S. 125 of the Cr.P.C. though to limited extent. In our opinion no distinction or discrimination can be made regarding caste, creed or religion. The legislature has treated this class of wives equally irrespective of their religion and has therefore chosen to make a special provision of this type in the Cr.P.C. This provides for a speedy and summary remedy to obtain maintenance to a person who is ordinarily helpless and, therefore, the said provision is not controlled by the provisions of the personal law of the parties including Shariat Act, 1937 though the amount paid towards Mehar could be taken into consideration while dealing with the question of maintenance.

14. Though the Code of Criminal Procedure is a general law regulating the procedure of criminal trials, generally, the provisions of Chap. IX dealing with maintenance of wives, children and parents is of a special character. Such a provision will be 'Special Law' with reference to the law generally governing the subject-matter of that kind of relationship. It deals with the specified class of cases irrespective of the general personal law of the parties. It is a provision enacted for special class of cases in contradistinction to cases generally governed by the personal law of the parties. In that sense the provisions of Sections 125 and 127 will be the special law and not the Shariat Act. Even otherwise a legislature by a subsequent enactment can confer additional rights and benefits on a person even though the said right happens to be more beneficial than what he is entitled under personal law. In this context it cannot also be forgotten that the Cr.P.C. of 1973 is a later law. Therefore, in our opinion the submissions made by Shri Hussein based on provisions of S. 5 of the Cr.P.C. are devoid of any substance.

15. In this context a reference could usefully be made to a decision of the Supreme Court in Nanak Chand v. Chandra Kishore Aggarwal : 1970CriLJ522 wherein the Supreme Court had an occassion to consider the scope of S. 488 of the old Cr.P.C. (1898) in the context of Hindu Adoptions and Maintenance Act (1956). While dealing with the contention that Section 488 in so far as it provides for the grant of maintenance to a Hindu is inconsistent with the Chap. III of the said Hindu Adoptions and Maintenance Act and in particular S. 20 thereof, which provides for maintenance to children, the Supreme Court has observed as under :

'We are unable to see any inconsistency between the Maintenance Act and S. 488 Cr.P.C. Both can stand together. The Maintenance Act is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, in so far as it dealt with the maintenance of children was in any way inconsistent with S. 488, Cr.P.C. The scope of the two laws is different. S. 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.'

16. In our opinion these observations aptly apply to the present case also. The provisions of Shariat Act and S. 125 of the Code can stand together as there is no inconsistency between them. As a matter of fact in Bai Tahira's case : 1979CriLJ151 by holding that payment of Mehar money as customary discharge is within the cognizance of S. 127 of the Code, the Supreme Court has put up a harmonious construction and has held that there is no inconsistency between these provisions.

17. The intention of the legislature is further clear from the objects and reasons and particularly the reason as to why explanation (b) to S. 125(1) was added, whereby it was made clear that word 'wife' will include a woman who has been divorced by or has obtained divorce from her husband and has not remarried. The objects and reasons as are reproduced in Vol. I of the Cr.P.C. 1973, AIR commentaries, page 721, read as under :

'The benefit of the provision should be extended to a woman who has been divorced from her husband, so long as she has not remarried after the divorce. The Committee's attention was drawn to some instances in which, after a while filed a petition under this section on the ground of neglect or refusal on the part of her husband to maintain her, the unscrupulous husband frustrated her object by divorcing her forthwith thereby compelling the Magistrate to dismiss the petition. Such divorce can be made easily under the personal laws applicable to some of the communities in India. This causes special hardship to the poorer sections of the community who become helpless. The amendments made by the Committee are aimed at securing social justice to woman in our society belonging to the poorer classes.'

It is pertinent to note that in the case before us also we are dealing with such a woman. The respondent, wife had filed an application for maintenance under Section 125 of the Code on 16th of April, 1974 and thereafter during the pendency of these proceedings divorce was pronounced by the husband on 14th of June, 1974. Therefore, in the view which we have taken, the application filed by the wife was rightly entertained by the learned Sessions Judge.

18. Then a contention was also raised by Shri Hussein that in this case the parties were living separate by mutual consent and Rs. 30/- per month were regularly paid to the wife towards maintenance and hence it cannot be said that the husband had either refused or neglected to maintain her. It is not possible for us to accept this contention. It is impossible to give inflexible interpretation or meaning to the word 'neglect or refused to maintain' as used in Section 125 of the Code. Obviously the said question is one of fact, and will depend upon the facts and circumstances of each case. However, can it be said that the husband is neither refusing nor neglecting to maintain wife, if he is paying her an amount which is not enough to meet the two ends or which is not compatible with her needs. If only a paltry amount is paid to the wife with which she is not able to meet her needs and genuine requirements, then it is nothing but subjecting her to destitution and vagrancy. That will obviously amount to neglect or refusal to maintain her. In this particular case only Rs. 30/- were being paid to the wife, which is wholly insufficient for her maintenance. This amount as well as the amount paid as Mehar is wholly illusory. It is not the case of the husband that he had made any other provision for the maintenance of his wife. Therefore, in our opinion, the Courts below were right in coming to the conclusion that though the husband has sufficient means, he had neglected and refused to maintain his wife. The story that the wife and husband were living separate because of the mutual agreement cannot also be accepted, more so in view of the evidence on record and the conduct of the parties. The parties are living separate for the last several years and the husband was only offering a paltry amount Rs. 30/- per month to the wife. As soon as she claimed maintenance by filing an application under Section 125 of the Cr.P.C., divorce was pronounced. This subsequent conduct of the husband wholly supports the case of wife about neglect and refusal. Therefore, in our opinion, the Courts below were right in accepting the testimony of the wife and then coming to the conclusion that the husband had neglected and refused to maintain her.

19. Then it was contended by Shri Hussein that the wife was able to maintain herself from the income of the ancestral property and therefore she was not entitled to claim any maintenance in these proceedings. It is not possible for us to accept this contention also. We have gone through the entire evidence on record. From the evidence of the wife it is quite clear that she has no independent source of maintenance. In her deposition it is neither suggested nor it is brought out that she has any other independent source of income. In these circumstances, the Courts below were right in coming to the conclusion that the wife has proved that she was unable to maintain herself and the husband has neglected and refused to maintain her.

20. It was also contended by Shri Hussein that in her evidence the wife has claimed Rs. 150/- per month for her maintenance whereas the courts below have granted her Rs. 200/- per month which is more than what has been claimed by her. It is not possible for us to accept this contention also. For property understanding the claim made by the wife we have gone through the vernacular version of her deposition as well as the claim made by her in the application. The reference made to Rs. 150/- in her deposition relates to the amount which is necessary for meeting the expenditure towards food only. In addition to this she had claimed Rs. 50/- for clothing etc. Therefore there is no inconsistency in the claim made by her in the application and in her deposition. From the evidence of the husband it is quite clear that he is a man of sufficient means and can safely afford to pay Rupees 200/- per month to his wife for maintenance. The Courts below after considering the evidence on record have recorded a concurrent finding of fact in that behalf and it is well settled that such a finding cannot be disturbed or interfered with in the extraordinary jurisdiction of this Court under Art. 227 of the Constitution of India (See Babhulmal v. Laxmibai, : AIR1975SC1297 ).

21. Therefore, in the view which we have taken there is no substance in this application, the petition fails and is dismissed.

22. Rule discharged.

23. Petition dismissed.


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