1. This revision is directed against the order dated 25-2-1980 of the Additional Munsiff and J.M.F.C., Udupi, Dakshina Kannada, in Misc. Case No. 87 of 1978 on his file.
2. Respondent is the wife of the petitioner. They have three children. Respondent filed an application under Section 125 of the Code of Criminal Procedure, 1973 (the Code) against the petitioner in the court below claiming maintenance for herself and, on behalf of her three minor children. Allowing the application, by the impugned order, the court below has directed the petitioner to pay to them maintenance at the rate of Rs. 500/- per month.
3. Besides making his submissions on merits, the learned Counsel for the petitioner-husband also submitted that his client did not have adequate opportunity to have his say in the matter in the court below and, therefore, also the order requires to be set aside.
4. Having had notice of the proceeding the husband had appeared in the court below, engaged a counsel, and had filed his statement in writing. In support of her case the wife got herself examined (P.W. 1), her father Seshappayya (P.W. 2) and her son Rama Rao (P.W. 3) aged 14 years. But, on his side, the husband did not adduce any evidence. Once or twice he sought for time. On 11-2-1980, to which date the case had been set down for his evidence, neither he nor any of his witnesses were present. The court treated his case closed and posted the matter for arguments on 15-2-1980 and further on to 19-2-1980. On that day also neither the husband nor his counsel, were present. The court heard the counsel for the wife and pronounced its order on 25-2-1980 as stated above.
5. As rightly submitted by the learned counsel for the respondent-wife that even thereafter, the husband, taking recourse to the proviso to sub-section (2) of Section 126 of the Code, could have applied in that Court, within the time stipulated therein, to set aside that order and permit him to adduce his evidence. He has not done so. I am, in the circumstances, of the view that there are no good grounds to set aside the order of the court below on that count.
6. Now, to consider the case on merits : In order to appreciate the arguments advanced on behalf of the husband it may be necessary to note a few facts.
(a) The application of the wife under Section 125 of the Code was filed in the Court below on 25-6-1978. She was then about 36 years and her husband was 42 years old. At about that time the respondent, who is a Textile Engineer, was employed in a Spinning Mill called Kandaswami Spinning Mills, Kumarapalyam. Salem District, Tamil Nadu. He is well qualified and had his Higher education outside India. Of their three children, the 1st one is a son aged about 14 years, and two others are daughters, aged about 12 and 9 respectively. Differences appear to have arisen between the husband and the wife some where in 1975. She left him with her children and since then has been living in Kote village of Udupi Taluk of Karnataka State, with her father. According to her, her husband used to treat her cruelly and some times used to beat her also and therefore she has been compelled to live away from him. Her case is that she does not have any adequate means of livelihood and her aged father cannot support her. She pleaded that her husband was getting a salary of Rupees 3,000/- per month and, therefore, the court may direct him to pay them she and her three minor children at least Rs. 500/- per month as maintenance. In his objection statement the husband has denied the allegation that he was not properly treating his wife or had neglected her. He has also denied that he was getting a salary of Rs. 3,000/- per month as alleged. It is his case that in spite of his best efforts his wife is refusing to live with him.
(b) Prior to her application in the court below The wife had issued a registered notice and that had been received by the husband some time in the month of April, 1978. In the month of May, 1978, the husband applied to the District Judge, Salem, Tamil Nadu, under Section 25 of the Guardian and Wards Act for the custody of his three minor children. That application, having been allowed by the District Judge, the wife preferred an appeal against that order in the High Court of Madras. That having been dismissed, she has preferred a Letters' Patent Appeal and the same is pending.
(c) It may be noted that the husband had also filed an application under Section 9 of the Hindu Marriage Act, 1955, on 30-5-1978 against his wife for restitution of conjugal rights. That came to be decreed ex parte on 5-7-1978 by the Subordinate Judge. Salem, in O.P. No. 86 of 1978 on his file.
(d) In her evidence in the court below the wife has deposed that after leaving her husband she and her children were living with her father at Katpadi (Udupi Taluk), that she had to leave her husband since lie had fallen into bad ways, that he used to keep other girls in the house, that she could not tolerate it, that he was also treating her cruelly, that she and her children have no means of livelihood that her husband, who has studied Textile Engineering in England, was earning Rs. 3,000/- to Rs. 4.000/- per month, and that it was not true that on her complaint he has since been removed from the concern where he used to work. In support of her case she has produced some correspondence said to have taken place between her husband and one of the girls who also happens to be his close relation. She has been cross-examined by the Counsel for the husband.
(e) Her father, who was aged 72 years then, has deposed supporting her claim and further stating about his having noticed on his visit to his daughter's house at Kumarapalyam, his son-in-law's conduct not being happy. According to him, he has witnessed his son-in-law not properly treating his daughter, son, Rama Rao, has also supported his mother.
7. After considering this evidence and having come to the conclusion that the husband, having sufficient means, had neglected to maintain his wife and children, the Court below has allowed the application filed by the wife.
8. I have carefully considered the deposition of these witnesses, and, in particular, as to how they have stood the test of cross-examination. I may say, by and large, they have stood the test of the searching cross-examination well.
9. The learned Counsel for the petitioner-husband relies not so much on the oral evidence on record while challenging the order of the court below, but on the two decrees his client has obtained, as aforesaid, in the courts of Tamil Nadu, and, in particular, the decree obtained under Section 9 of the Hindu Marriage Act, 1955.
10. The decree for restitution of conjugal rights, which his client has obtained against the wife, the Counsel says, is proof enough to show that 'without any sufficient reason, she refused to live with her husband', and, therefore, her claim is barred under sub-section (4) of Section 125 of the Code.
11. Counsel for the respondent-wife argued that the result ultimately of not complying with a decree for restitution of conjugal rights is one of divorce and even a divorced wife being entitled to claim maintenance would it be fair or proper to deny maintenance to the wife, provided she is able to establish her claim under Section 125 of the Code merely because the husband has obtained a decree for restitution of conjugal rights against her he asks.
12. It is true that sub-section (4) of Section 125 of the Code says that 'no wife shall be entitled to receive an allowance from her husband ....... If, without any sufficient reasons, she refuses to live with' him.
13. The question is : What would be the implication of a decree obtained by one spouse against the other under the personal law governing them in a matrimonial court over a proceeding initiated by the wife against the husband under Section 125 of the Code.
14. The two proceedings, one under Section 125 and the other under the respective personal law of the spouses operate in different spheres, though in a very limited area they do overlap. Generally they are intended to serve different purposes. The remedy under Section 125 is purely a discretionary one. It is not so, to that extent, under the personal law. The aim and object of this provision (Section 125) and other provisions in Chapter IX of the Code is to help the weaker of the two to obtain assistance of the court in getting maintenance. Discarded or helpless wives, deserted children, and destitute parents can get much relief by invoking Section 125. The relative scope of these two types of proceedings, one under Chapter IX of the Code and other under the personal law of the parties, came up for consideration before the Supreme Court in Mst. Zohara Khatoon v. Mohd. Ibrahim : 2SCR910 . At Para 7 the Court observed as follows :
'It is not necessary to refer to the other provisions of Section 488 of the said Code as the same are not germane for the purpose of deciding this appeal. It may, however, be noted that a provision like clause (b) of the Explanation to Section 125(1) of the 1973 Code was conspicuously absent from Section 488 and has been added by the 1973 Code. We shall deal with the legal effect of this provision a little later. A perusal of Section 488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the Section. The provisions may not be inconsistent with other parallel Acts in so far as maintenance is concerned, but the section undoubtedly excludes to some extent the application of any other Act. At the same time, it cannot be said that the personal law of the parties is completely excluded for all purposes. For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would said personal law. Thus, the exclusion by Section 488 extends only to the quantum of the maintenance and the circumstances under which it would be granted'
15. Section 488 of the Code of Criminal Procedure, 1898 corresponds to Section 125 of the Code, and, in fact the latter has some features more beneficial to the wives and aged parents. The observations of the Supreme Court in Mst. Zohara Khatoon's case (1981 Cri LJ 754) make it clear that in matters like 'the validity of a marriage or mode of divorce or cessation of marriage under the personal law are concerned', the findings of courts deciding such questions applying the personal law of the parties prevail. If such questions arise in a proceeding initiated in the criminal court under Chapter IX of the Code that court would be bound by those findings. But, if in a proceeding initiated under Chapter IX of the Code, the question is as to whether the wife, being 'wife' within the meaning assigned to that term in Section 125 of the Code, is at all entitled to maintenance, and, if so, at what rate, the Court (Criminal Court) trying that cause will have exclusive powers to deal with those issues. The findings of civil courts on issues other than those referred to above touching questions such as the wife withdrawing from the society of the husband, desertion on her part or her leading an adulterous life etc., are concerned, the criminal court is not bound by such findings. This is not to say that it should simply neglect the decree, if any, obtained by the husband in the matrimonial court. The Court dealing with the maintenance claim under Section 125 will have to carefully examine and take into consideration such decrees also though as stated above, it is not bound by the findings. It may be difficult to give instances where such decrees or the observations made in such orders, torching questions relevant for consideration under Section 125, will be sufficient to negative the claim of the wife. All that can be said is, as observed by Chief Justice Beaumont in Fakruddin Shamsuddin v. Bai Jenab (AIR 1944 Born 11) : (1944-45 Cri LJ 271), that the Magistrate should not 'surrender his own discretion' simply because the husband was armed with a Civil Court decree for restitution of conjugal rights. This question has also been considered by various High Courts. The following observations made by Janaki Amma, J., in Gopala Pillai v. Padmini Amma, (1978 Ker LT 485 : (1978 Cri LJ NOC 232) may be noted :
'An order for restitution of conjugal rights by itself is not a ground for refusal of maintenance under Section 125 of the Code of Criminal Procedure unless it is made out that the person in whose favour it was made was willing to discharge his obligations as a husband and did not secure the order as a ruse to get rid of the wife in a subsequent proceeding for divorce. It may look obnoxious that a woman against whom an order for restitution of conjugal rights was passed and was divorced following the order should be granted maintenance after divorce by her former husband. But, it has to be borne in mind that the purpose of Section 125 of the Code of Criminal Procedure is to prevent vagrancy and it is the duty of Courts to advance that purpose. There are several grounds on which a husband may obtain a divorce from a wife. Divorce is permissible in a case where the wife is living in adultery; it is also allowed when the wife is suffering from a virulent disease. To direct a person to pay maintenance to his ex-wife in the former case would be revolting to one's sense of justice while to 'to deny maintenance in the latter case when the statute provided for it would be unjust. It is not as if Section 125 of the Code of Criminal Procedure enjoins that the courts should award maintenance to all divorced wives. It is for the courts to make an assessment of the situation within the framework of the statute and to see that the object of the statute is served and at the same time there is no abuse of the process of court. The word 'may' in Section 125(1), Criminal P.C., make it clear that the grant of maintenance even in the case of a wife is a matter of discretion, the discretion being used in a judicial manner, in advancement of the purpose underlying the section. The identical principles will apply in the case of maintenance to a divorced woman'.
Also the following observations of Ramachandra Raju, J. of Andhra Pradesh High Court in Sayed Ghulam Sajjad v. Parveenpatima 1981 Cri LJ NOC 2 may be noted :
'A mere decree for restitution of conjugal rights in favour of husband itself does not automatically bar the wife from claiming maintenance under Section 125, though the decree cannot be ignored. The Magistrate has discretion to decide on evidence adduced before him by the parties, whether the wife is entitled to maintenance despite the fact that husband has got a decree for restitution of conjugal rights. (Case law discussed)'.
Some High Courts have also taken a a contrary view and reference may be made to Smt. Geeta Kumari v. Shivacharan Das, 1975 Cri LJ 137 (Raj) and S. R. Govindarajan v. Rukmani Govinda-rajan, 1980 Mad LJ (Cri) 662.
16. In view of what I have stated above, and, particularly in view of the decision of the Supreme Court in Mst. Zohara Khatoon's case (1981 Cri LJ 754) (supra), the views expressed in Gopala Pillai's case (1978 Cri LJ NOC 232) (Ker), and in Sayed Ghulam Sajjad's case (1981 Cri LJ NOC 2) (Andh Pra) (extracted above) are to be preferred.
17. In the instant case, prior to the filing of her application on 24-6-1978, the wife had issued a notice which had been received by the husband in the month of April, 1978. In the month of May, 1978 he had applied under Section 25 of the Guardian and Wards Act for the custody of his three minor children. But, as on 30-5-1978, as stated above, he had applied in the court of the Subordinate Judge, Salem, for restitution of conjugal rights under Section 9 of the Hindu Marriage Act and obtained an ex parte decree. As is clear from the address of the respondent mentioned in that proceeding she was residing in Udupi, South Kanara District, Karnataka State, which is far away from Salem. Her case in this proceeding is that she had left her husband and had started living with her father since July, 1975. Waiting for almost three years and being certain that she would take steps against him for maintenance and as a counterblast to that move, the husband applied in a court at Salem, which is hundreds of miles away from Udupi, and has obtained an exparte decree for restitution of conjugal rights against her. His plea is that this decree is proof enough to show that she was refusing to live with him without any sufficient reason within the meaning of sub-section (4) of Section 125 of the Code. In the circumstances of this case I am unable to accept this plea. It is clear that this action was taken by the husband to strengthen his defence against the wife's impending claim, for maintenance. The desire does not appear to be to pursuade her to live with him. It is true, that a concluded ex parte decree is as much a valid decree binding the parties as a contested one. But, there are one or two features behind this ex parte order which ought to be taken note of while examining the implication of that decree over this proceeding. As stated above, Salem, the City in Tamil Nadu State, wherein the husband initiated the action for restitution of conjugal rights, is hundreds of miles away from the place in Udupi Taluk of Karnataka State where the wife used to live. Was it, in the circumstances, possible for this Indian house-wife, brought-up in traditional surroundings to make arrangements to fight this legal battle, even if she, wanted to Helpless, as she was, if she has suffered this ex parte decree, can we, in this proceeding under Section 125, accept that decree as providing proof of the husband's plea that 'without any sufficient reason, she refuses to live with' him and, therefore, is not entitled to claim maintenance The said decree cannot be the sole basis to sustain the aforesaid plea of the husband.
18. The decree he has obtained under the Guardian and Wards Act and which is said to be pending by way of a Letters' Patent Appeal is also not of much consequence. If he is able to secure the custody of his children pursuant to that decree it would be open to him to get this decree for maintenance modified if he can do so. The learned Magistrate, after considering the evidence on record, has rightly held, in my view, that the wife and children are entitled to maintenance. That finding is not liable to be disturbed.
19. Now to consider the quantum of maintenance. It was submitted on behalf of the husband that he was in great difficulties, was also without a proper job, and therefore, even the quantum awarded is highly exhorbitant. But, it may be noted that the court below has awarded Rs. 500/- per month to the wife and three children. The Children are growing up and, perhaps studying in various schools and college. Do they not require this much to survive The husband is a person of specialised qualification. His say that he is unable to provide Rs. 500/- per month to these four persons cannot be countenanced. The children are growing up and when they attain majority it is open to him to get this order modified. I am not inclined to disturb the findings of the court below even on this question.
20. In the circumstances and for the reasons stated above this petition is dismissed.
21. Revision dismissed.