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loyallogic · 5 years ago

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AIBE: Leading Case Laws of Family Law

Find out the 50 LEADING CASES ON FAMILY LAW which will help in your preparation of AIBE.

Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844

It was a controversial maintenance lawsuit. In this case, Supreme Court granted the maintenance to a divorced muslim woman irrespective of what the Muslim personal law says. Supreme Court held that Section 125 of CrPc is also applicable on Muslims. Supreme Court concluded that Cr.P.C. is a secular law and “there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.” A muslim woman is entittled for the maintainance even after the period of iddat.

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Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 573

The court was of the opinion that India and Indians have been governed by personal laws, regardless of the time period. It was of the opinion that an interference by the court would lead to several undesirable outcomes, as the adjudication of personal laws was beyond the jurisdiction of the courts. The petition was therefore dismissed.

Danial Latifi and another v. Union of India (2001) 7 SCC 740

The court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled to reasonable and fair provisions, and maintenance within the ‘iddat’ period is not in violation of Article 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)

In this case the Supreme Court was of the view that the mere plea of a Talaq, would not validate the same. There Quranic procedures of obtaining a Talaq need to be fulfilled, i.e., Talaq has to be pronounced in the Quranic injunction.

Shayara Bano v. Union of India and others

Supreme Court in 2017 in a historic and landmark judgment declared “Triple Talaq” unconstitutional. The Apex Court said, “Given the fact triple talaq is instant and irrevocable, it has no scope of arbitration which is essential for saving marriage ties. Hence, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. The court invalidated Section 2 of Shariat Application Act, 1937 to the extent it enforces “triple talaq”.

Sushil Kumari Dang v. Prem Kumar

Here, a petition for restitution of conjugal right is filed by the husband and the husband accuses his wife for adulterous conduct. Following which he filed another petition for judicial separation which shows the extent of his sincerity and interest in keeping the wife with him. So, the Delhi High Court set aside the decree of restitution granted by the lower court.

Yousuf v. Sowramina

It was held that at times, the determination of the question whether in fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage.

Ankush Narayan v. Janabai

Court held that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed.

Guradas v. Rasaranjan

Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam. For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking ceremony.

Harvinder Kaur v. Harmander Singh Choudhary

In this case, the court rejected the plea that personal law was discriminatory towards Gender inequality in India. It also observed that introduction of Constitutional law into the home (referring to personal laws) was most inappropriate.

Jijabai v. Pathan Khan

Where the father and mother had fallen out and the mother was living separately for over 20 years and was managing the affairs of her minor daughter the apex Court observed though the father was alive but he was not taking any interest in the affairs of the minor and should be treated as if non-existent, and, hence, the mother is the natural guardian of the minor’s person as well as property.

Sitabai v. Ramchandra

So there may be relationship by implication in the other cases also. The Supreme Court has also held that a son adopted by the widow of the deceased coparcener will also be a coparcener with the surviving coparceners of the deceased husband.

Sarla Mudgal vs. Union of India

The Court held that if a Hindu converts to Muslim and then have a second marriage, he can not do so, irrespective of the fact that polygamy is allowed in Islamic Law.

R.Virupakshaiah v. Sarvamma & Anr

Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is ancestral property.

Dipo v. Wassan Singh & Others

A person who has to inherit property from his immediate paternal ancestors up to 3 lines, holds it in coparcenary and to other relations he holds it and is entitled to hold it, as his absolute property. Hence, the property inherited by a person from any other relation becomes his separate property.

Chanmuniya v. Virendra Kumar Singh Kushwaha

Considering Sec 7 of the Hindu Marriage Act, 1955 the marriage performed in absence of customary rites and ceremonies of either parties to marriage is not valid. And Mere intention of the parties to live together as husband and wife is not enough. Further, there is no scope to include a woman not lawfully married within the expression of ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

Vaddeboyina Tulasamma v. Vaddeboyina Shesha Reddi, 1977 SCR (3)

The Supreme Court in this case highlighted the Hindu female’s right to maintenance as a tangible right against property which flows from the spiritual relationship between the husband and wife. The Bench comprising of Justice P.N. Bhagwati, Justice A.C. Gupta and Justice S.M. Fazal Ali held that Section 14(1) of the Hindu Succession Act, 1956 must be liberally construed in favour of the females so as to advance the object of the Act. This section makes female Hindu a full owner of a property, instead of a limited owner of the property.

Mrs. Mary Roy Etc. v. State Of Kerala & Ors, 1986 AIR SC 1011

The Supreme Court in this case held that Christian women are entitled to have an equal share in their father’s property. This path-breaking judgment sent shock waves throughout the country. Till then, Christian women in Kerala were governed by the provisions under the 1916 Travancore-Kochi Christian Succession Act.

Under this Act, a Christian daughter can inherit only one fourth of the share of the sons in her father’s property. The Bench comprising of Chief Justice P.N. Bhagwati and Justice R.S. Pathak gave a liberal interpretation that benefited the Christian women in Kerala and brought them within the ambit of the Indian Succession Act, 1921.

Lata Singh v. State of Uttar Pradesh, 2006 (6) SCALE 583

Noting that there was no bar to inter-caste marriage under the Hindu Marriage Act, a Division Bench of the Supreme Court comprising of Justice Ashok Bhan and Justice Markandey Katju observed that since there was no dispute about the petitioner being a major, “she was free to marry anyone she likes or live with anyone she likes“.

Velusamy v. D. Patchaiammal, (2010) 10 SCC 469

The Supreme Court, in this case, held that Live-in relationships will also come under Domestic Violence Act 2005 . It is held that ‘not all live in relationships will amount to a relationship in the the nature of marriage to get the benefit of the Act of 2005.

Roxann Sharma v. Arun Sharma, Civil Appeal No. 1967 OF 2015

The Supreme Court in this case held that in a in a battle between estranged parents, for the custody of minor child, who has not completed five years of age, shall be allowed to remain with the mother. The Bench comprising of Justice Vikramajit Sen and Justice C. Nagappan held that in such cases child should not treated as a “chattel”.

Seema v. Ashwani Kumar, AIR 2006 S.C 1158

The Supreme Court in this case directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized. The Bench, comprising of Justice Arijit Pasayat and Justice S.H. Kapadia also directed that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

Neeraja Saraph v Jayant Saraph (1994) 6 SCC 46

The Supreme Court gave some important obiter observations in this case:

No marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court.

Provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad.

The decree granted by Indian courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.

Dhanwanti Joshi v Madhav Unde (1998) 1 SCC 11

The Supreme Court had the occasion to decide the custody of the child when he was more than 12 years old and decided that even though the father may have obtained custody from the US court, the best interests of the child demanded that the child be allowed to continue to stay with the mother in India who had brought up the child single handedly in India, subject to visitation rights of the father.

ROXANN SHARMA V/S ARUN SHARMA CIVIL APPEAL No. 1966 OF 2015

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother.

The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.

Saroj Rani v Sudarshan Kumar

In this case the constitutionality of Section 9 of Hindu Marriage Act was challenged. Petition was filed by the wife for a restitution of conjugal rights under Section 9 of the Hindu Marriage Act,1955. Her husband consenting to the passing of a decree for the same was passed.

After a period of 1-year husband filed a petition under Section 13 of the Hindu Marriage Act,1955 against the appellant for divorce on the ground that though one year had elapsed from the date of passing the decree for restitution of conjugal rights as no actual cohabitation had taken place between the parties. The Supreme Court upheld the constitutionality of Section 9 by saying that it serves a social purpose as an aid to the prevention of break-up of the marriage.

Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938

In this case, the Supreme Court described who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955. The Act, is, therefore, applicable to: “(1)All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist (2) Budhists (3) Jains (4) Sikhs”

Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263

The Court held that a person is entitled to a decree of nullity under Section 25(iii) of the Hindu Marriage Act on grounds of fraud as described in Section 17 of the Indian Contracts Act.

Amardeep Singh v. Harveen Kaur (Supreme Court)

The Supreme Court held that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court also stated that such proceedings can also be conducted through video conferencing.

Suman Singh v. Sanjay Singh (Supreme Court)

In the case, the husband had pleaded 9 instances which, according to him, constituted “cruelty” within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act entitling him to claim dissolution of marriage against the appellant. The court held that Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act.

Balveer Singh v. Harjeet Kaur (Uttarakhand High Court)

While deciding this issue, the High Court referred to the impugned provisions and made the following key observations in the case:

That on a simple reading of Section 9 of the Hindu Marriage Act, 1955, it has altogether a different purpose. The purpose of Section 9 of the Hindu Marriage Act, 1955 is to meet a contingency.

Section 9 of the Hindu Marriage Act, 1955 and Section 13-A of Hindu Marriage Act, 1955 are framed to meet a separate set of contingencies.

If Section 9 of the Hindu Marriage Act, 1955 is either decreed or dismissed, it will not take away a right of a party to file Section 13-A of Hindu Marriage Act, 1955 for dissolution of marriage at any subsequent stage.

Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court)

The Court noted that if the Criminal Complaint filed by the appellant wife against her husband was false and was filed only to bring back her husband and consequent to which he was arrested and was in jail for about 7 days, it would constitute a clear case of cruelty by the wife against her husband.

Natubhai Somabhai Rohit v. State of Gujrat & Anr. (Gujrat High Court)

The Court also relied on Supreme Court’s verdict in G. V. Rao vs. L.H.V. Prasad wherein the Court stated that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed.

Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438

In this case there was dissolution of the marriage on the ground of adultery of the applicant. The applicant’s case that her husband had committed adultery was found to be not supported by evidence. Supreme Court in this case held that when a wife deliberately persist on not getting a job even she easily can, is an undue advantage. The court only allowed starving allowance in this case.

Shanti Devi v. Govind Singh

The Court held that for constituting ‘desertion’ two essential conditions must be fulﬁlled namely (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end.

Meghanatha Nayyar v. Smt. Susheela

The Madras High Court had observed that “Section 14 provides restrictions presumably designed to prevent party from taking recourse to legal proceedings before the parties have made real eﬀort to save their marriage from disaster. It is founded on public policy because marriage is the foundation of civil society and no part of the laws and constitution of a country can be of more vital importance to the subject than those which regulated the manner and conditions of forming and if necessary, of dissolving marriage contract.

Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

It is pertinent to note that sub-section (c) of Section 4 provides that a natural guardian means a guardian mentioned in Section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother.

Chand Patel v. Bismillah Begum, 1 (2008) DMC 588 (SC)

The Supreme Court that a Muslim’s marriage to his wife’s sister may be , while the earlier marriage still subsists, will be irregular but the second wife and children are entitled to maintenance. The Muslim personal law prohibits “unlawful conjunction”- a man cannot marry his wife’s sister in her lifetime or till the dissolution of their marriage but that doesn’t affect her entitlement to maintenance.

Masroor Ahmed v. Delhi (NCT) 2008 (103) DRJ 137 (Del.)

The Delhi HC in this case elucidated the various modes of dissolution of marriage under Muslim Law. The Hon’ble Court elaborated Section 2 of the Muslim Personal Law (Shariat Application), 1937.

Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2213

The relief which is available to the spouse against whom a decree for restitution of conjugal rights has been Passed cannot reasonably be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a “wrong” within the meaning of s. 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Mere non-compliance with a decree for restitution does not constitute wrong within the meaning of section 23(1)(a).

Nachhattar Singh v. Harcharan Kaur AIR 1996 Punjab and Haryana 201

If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all the other conditions mentioned in sub-sec. (1) of S. 13B of the Act are fulfilled, it will not be open to a party to withdraw the consent. In the present case without making an inquiry under sub-sec. (2) the trial Court has dismissed the petition as withdrawn which could not be done merely on the asking of one party.

Sureshta Devi v. Om Prakash, 1 (1991) DMC 313 (SC)

The SC settled the controversy by ruling that at the time of second motion under Section 13(B) HMA, one of the parties of the marriage withdraws the consent given to the petition, then decree for divorce on mutual consent cannot be passed.

Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176

The SC held that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.

Swaraj Garg v. K.M. Garg, AIR 1978 Del. 296

It is true that under the Hindu law, it is the duty of the husband to maintain his wife, but the wife is not under a corresponding duty to maintain her husband. This also is due to the fact that normally the husband is the wage earner. If, however, the wife also has her own income it will be taken into account and if her income is sufficient to maintain herself the husband will not be required to pay her any maintenance at all.

Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398

The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Gohar Begum v Suggi, (1960) 1 SCR 597

The court held that in Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.

Mambandi v. Mutsaddi, (1918) 45 Cal 887

The court held that a father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children.

Vandana Shiva v. Jayanta Bandhopadhaya

The Supreme Court has held that under certain circumstances, even when the father is alive mother can act as a natural guardian. The term ‘after’ used in Section 6(a) has been interpreted as ‘in absence of’ instead ‘after the life-time’.

Itwari v. Asghari, AIR 1960 All. 684

The court held that Even in the absence of satisfactory proof of the husband’s cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.

N.G. Dastane v. S. Dastane, AIR 1975 SC 1534

Five tests were laid down in determining whether a given conduct amounts to legal cruelty. They are the following:

The alleged acts constituting cruelty should be proved according to the law of evidence;

There should be an apprehension in the petitioner’s mind of real injury or harm from such conduct;

The apprehension should be reasonable having regard to the socio-economic and psycho-physical condition of the parties;

The petitioner should not have taken advantage of his position;

The petitioner should not by his or her conduct have condoned the acts of cruelty.

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juudgeblog · 7 years ago

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Important Supreme Court Cases on Maintenance Rights

In this article, Hritik Sharma discusses Important Supreme Court Cases on Maintenance Rights.

Cases on Maintenance Rights

The basic Concept of Maintenance was introduced due to the situation where a spouse who is not independent financially, than the other spouse do have a responsibility to help him/her in order to make the living of the other possible and independent, as the Reason has been that the maintenance should be able to provide them to live the life as he or she was living before.

Following are the cases which have brought important changes to the laws related to maintenance.

Right to maintenance – Section 125 CrPc

Mohd. Ahmed Khan v. Shah Bano Begum

This Case’ judgement was claimed to be a milestone as it was a major step ahead of the general practice of deciding the judgement of the cases on the basis of interpretation of the personal law and also lay an emphasis on the need to implement the Uniform Civil Code. It also took a note of different personal laws and the need to give a recognition and it also addresses the issue of gender equality and perseverance in matters of religious principles.

Facts

The appellant-husband who was an advocate by profession was married to the respondent-wife in the year 1932, they had five children-three sons and two daughters.

In 1975, the appellant drove the respondent out of the matrimonial home.

In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate Indore, asking for maintenance for herself and for her 5 children at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs.60,000 per year, the section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she is not able to earn for herself.

Divorce Announced: In the month of November, 1978, the appellant did announced the divorce to the respondent by an irrevocable talaq and defended himself on the grounds of the Muslim Personal Law in India by stating that she had ceased to be his wife by reason of the divorce granted by him, required that the husband to only provide maintenance for the iddat period after the divorce that had not kept him under no obligation to provide maintenance for her after the completion of iddat period.

Iddat: The Iddat is the waiting period for a woman which must be observed, After the death of her husband or the divorce announced by her husband, before she can marry another man. The length of the iddat period is usually for three months, but in case the woman is pregnant, the period carries on until the birth of the child.

Supported the Petitioner: The Khan’s argument was supported by the All India Muslim Personal Law Board which argued that the courts cannot take the liberty of interfering in the matters coming under the Muslim Personal Law, contended further that it would be a violation of the Muslim Personal Law (Shariat) Application Act, 1937.

In 1985, After the acknowledgement of the detailed arguments, the decision was passed by the Supreme Court of India, Keeping its decision on the question whether Cr.P.C., 1973 which applies to all Indian citizens regardless of their religion, can be applied in this case.

Verdict

The then CJI, Y.V.Chandrachud upheld the decision of the High Court that gave orders for maintenance to Shah Bano under the Code of Criminal Procedure, 1973. For its part, the court did increase the sum of money to be given under the maintenance.

Whether Magistrate can grant Interim Maintenance

Savitri W/O Shri Govind Singh v. Shri Govind Singh Rawat

Under this case, the Supreme Court did come into the questions of the provisions that whether the Interpretation of the Cr.P.C. Provides the Provision for Interim Maintenance.

Facts

The petitioner filed a petition under section 125 of the Cr.P.C., 1973, before the Magistrate for an order against her husband directing him to pay the maintenance.

Thereafter, she filed another application for an interim order directing her husband to pay a reasonable sum by way of maintenance pending disposal of the main application. The Magistrate declined to take a call for an interim order due to reason that, there were no express provisions given Under the Code enabling a Magistrate to pass such order.

Verdict

It has already been realized that there are no express provisions in the Code which give the authority to the magistrate to direct an interim order directing payment of maintenance pending disposal of an application for maintenance, and on the other hand, the code does not also expressly prohibits the making of such an order. The question is that whether such a power can be implied to be vested in a magistrate having regard to the nature of the proceedings under Section 125,

Under the Section: The Section 125 of the code confers power on a magistrate to direct a person having sufficient means but who neglects or refuses to maintain:

His wife, unable to maintain herself; or,

His legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or,

His legal or illegitimate child (should not be a married daughter) who did attain majority, and where such child is because of any physical or mental abnormality or injury is not being able to maintain itself; or,

His father or mother, unable to maintain himself or herself, upon proof of such neglect or refusal, to pay a monthly allowance for the maintenance of his wife or such child, father or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit. Such allowance shall be payable from the date of the order, or, if so ordered from the date of the application for maintenance.

Interpretation

The above provisions’ interpretations show that they are intended to provide for a preventive remedy for securing payment of maintenance which can be granted quickly and in deserving cases. In the view of foregoing it is the duty of the court to interpret the provisions in Chapter IX of the Code, in such a manner that the decision given by the court keeping in mind about the enacted code on whose behalf the decision is being taken, would not defeat the very object of the legislation.

In the absence of express prohibition, it is appropriate to construe the provisions as conferring an implied power on the magistrate to direct the person against whom a petition is being filed under Section 125 of the code to pay some amount of money by way of maintenance to the applicant pending final disposal of the application.

It has been acknowledged to be quite common that applications made under section 125 of the code also take several months for being disposed of finally, and regularly to Reap the benefits of the proceedings under section 125, the applicant should be alive until the date of the final order and that the applicant can do in a larger number of cases only if an order stated for payment of interim maintenance is passed by the court.

Conclusion: The court concluded by mentioning that the Magistrate may insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order.

What Amount will be reasonable for the Wife as Maintenance

Kulbhushan Kumar vs Raj Kumari & Another

The Maintenance was given to wife was determined by the court as the decision was taken keeping in mind about the situation, as the wife was receiving money from her father.

Facts

The appellant-husband and the respondent-wife were married in the month of May 1945. Sometime later, the husband did not want to live with the wife, and there was a complete estrangement between both of them. A daughter was born in August 1946.

In 1951, the respondent sent a registered letter claiming maintenance, on the behalf of herself and the daughter, and by the year 1954, she filed the suit for maintenance.

The High Court took into account of the fact that the appellant was a Reader in Medicine receiving a salary of about Rs.700 and more than Rs.250 per month by way of private practice. The date of the institution of the suit was fixed by the High Court for the payment of the maintenance to the respondent.

The High Court adjudged, fixed the maintenance payable to the respondent, under the Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, at Rs.250 subject to a limit of 25% per month of the income as determined by the income-tax authorities, and Rs. 150 as the maintenance of the daughter.

In this appeal to the Supreme Court by the respondent on the question raised for the allegiance of the maintenance payable to the wife.

Verdict

The Court Held that:

Even if the wife had received some money from her father regularly, it can only be recognised as a gift, not as her income. Therefore, it could not be taken into an account under Section 23(2)(d) of the Act in determining the amount of maintenance;

There was no evidence of her inheriting any property of her father on his death;

The amount payable by way of maintenance depends on the facts of each case and the Judicial Committee, in Mt. Ekradeshwari v. Homeshwar, did not lay down any principle relating to the proportion of the husband’s ‘free-income’ which would be payable as maintenance to the wife.

In the circumstances of this case, no exception could be taken to the amount fixed by the High Court as well as the date, from which the maintenance would be claimable. In determining the limit at 25% of the ‘free income’ of the appellant, amounts payable towards income tax, compulsory provident fund, and other expenses for maintaining the car for professional purposes as allowed by the income tax authorities should be allowed as deductions from the husband’s total income.

Whether the wife is able to take the maintenance where her marriage is bigamous in nature

Badshah v. Urmila Badshah Godse and Another

The Supreme Court determined that a victim of a bigamous marriage is entitled to maintenance.

Facts

The respondents had stated in the petition that respondent No.1(the wife) was married to Popat Fapale. However, by the year 1997, she got divorced from her first husband. After getting divorced from her first husband in the year 1997,

By the Year 2005, she resided at the house of her parents. On demand of the petitioner for her marriage through mediators, she married him in the month of February 2005, as per Hindu Rites and customs. After her marriage, she resided and cohabited with the petitioner. For the first 3 months, the petitioner cohabited and maintained her nicely.

Get to Know about the Truth: After about three months of her marriage with petitioner, one lady Shobha came to the house of the petitioner and claimed herself to be his wife. On inquiring from the petitioner about the said lady Shobha, he replied that if she wanted to cohabit with him, she should reside quietly. Otherwise, she was free to go back to her parent’s house. When Shobha came to the house of petitioner, respondent No.1 was already pregnant from the petitioner. Therefore, she tolerated the ill-treatment of the petitioner and stayed along with Shobha. However, the petitioner started giving mental and physical torture to her under the influence of liquor. The petitioner also used to doubt that her womb is begotten from somebody else and it should be aborted. However, when the ill-treatment of the petitioner became intolerable, she came back to the house of her parents. The Respondent No.2, Shivanjali(Daughter), was born in the month of November 2005. After facing such Humiliation and Atrocities, the respondents claimed maintenance for themselves.

Denial by the Petitioner-Husband: While, the petitioner given a written statement, where he denied his relationship with the Respondent No.1 and Respondent No.2, as his wife and daughter respectively, he stated that he never entered into any matrimonial alliances with the Respondent No.1 in the month of February 2005 as claimed by the Latter, and even alleged that the respondent no.1 is trying to blackmail him, He also denied the cohabitation with the respondent No.1, and stated that he is not the father of the respondent No.2 either.

According to the petitioner, he had married Shobha on 17 February 1979 and from that marriage, he had two children i.e one daughter aged 20 years and one son aged 17 years and Shobha had been residing with him ever since their marriage. Therefore, respondent No.1 was not and could not be his wife during the subsistence of his first marriage and she had filed a false petition claiming her relationship with him.

Verdict

Based on these facts, the SC opined that there cannot be a denial of the benefit permitted in the form of maintenance to the respondent, as the petitioner is taking advantage of his own wrong,

As the fact to be emphasized, is that when the marriage between the respondent No.1 and the petitioner was solemnized, the petitioner had kept the respondent No.1 unknown about his first marriage. A false representation was given to respondent No.1 that he was single and was competent to marry respondent No.1. In Such Circumstances, can the petitioner be allowed to take any advantage any wrong done by him and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125, Cr.P.C. as the Respondent No.1 is not “legally wedded wife” of the Petitioner?

The Answer is Negative, as the purpose of Section 125 Cr P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the Section 125 Cr.P.C.

Whether a wife has a right to get maintenance from her husband who is already divorced?

Shabana Bano v. Imran Khan

In this Case, the Supreme Court did come across the situation where the wife after getting divorced from her husband appeals for Maintenance.

Facts

The Appellant Shabana Bano was married to the respondent Imran Khan according to Muslim rites at Gwalior in the month of November in 2001.

Demand for the Dowry: According to the appellant, at the time of marriage, necessary household goods to be used by the couple were given. However, despite this, the respondent-husband and his family members treated the appellant with cruelty and continued to demand more dowry.

Threatening the Appellant: Sometime After, the appellant became pregnant and was taken to her parents’ house by the respondent. The respondent threatened the appellant that in case his demand for the dowry is not met by the appellant’s parents, then she would not be taken back to her matrimonial home even after delivery.

Appellant delivered a child in her parental home. Since even after delivery, respondent did not think it proper to discharge his responsibility by taking her back, she was constrained to file a petition under Section 125 of the Code of Criminal Procedure against the respondent in the Court of Family Judge, Gwalior. It was averred by the appellant that respondent has been earning a sum of Rs. 12 thousand per month by doing some private work and she had no money to maintain herself and her new-born child. Thus, she claimed a sum of Rs.3 thousand per month from the respondent towards maintenance.

Verdict

The court did hold that according to the Section 20 of the family act, which makes the situation crystal clear that the provisions of the Act shall have overriding effect on all other enactments in force dealing with the issue of maintenance,

The appellant’s petition under Section 125 of Cr.P.C. would be maintainable before the Family Court as long as the appellant does not remarry.

The Quantum of Maintenance which will be awarded, according to the Section 125 Cr.P.C. cannot be restricted for the Iddat Period Only.

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muralimohan · 4 years ago

Text

whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 Cr.P.C. only till she attains majority or she can claim maintenance till she remains unmarried? = an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956.-In facts of the present case the ends of justice be served by giving liberty to the appellant to take recourse to Section 20(3) of the Act, 1956, if so advised, for claiming any maintenance against her father.

https://freelegalconsultancy.blogspot.com/2020/09/whether-hindu-unmarried-daughter-is.html

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marymosley · 5 years ago

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USE OF ENTOMOLOGY AS AN EVIDENTIARY TOOL AND THEIR FORENSIC IMPORTANCE

Introduction

Firstly we have to know about entomology and its uses in forensic sciences. It is one of the oldest

branches of forensics. There are various categories of forensic entomology but here we will look into

the Medico-Legal Aspects of the Forensic Entomology.

Here we will discuss the negligence shown to any child, incapables (old) and animals.

Types of abuses

The main three categories will be discussed hereof abuse/neglect seen are as follows:

· Child neglect/ Abuse

· Elderly neglect/Abuse/Nursing home Abuse/ Neglect

· Animal neglect/ Abuse

Child Abuse

A child can be considered as a person under the age of eighteen. Any emotional harmseserio physical harm or sexual harm or exploitation or death is considered under the Child Abuse.

Child abuse is a very frequent crime in India. For example, In Ireland, a two-year-old male child was admitted to the hospital. He was showing signs of malnourishment and was suffering from severe enteric pain and bleeding. Tissue lacerations were found in the investigative surgical procedures of the child. A partial larva and Speckles from the tissue samples of the child were identified as the cause. Larvae of Dermestes lardaceous were also found in boxes of biscuits in the kitchen at the child’s home in large numbers. This was the reason for the fatal cause of the child. Negligence of the parent was proved.

In the above example, we found the larva and speckles from the tissue samples. It happened due to

the insect found in the boxes of biscuits in the kitchen.

This shows the negligence of the child in the home. The proper ignorance in the food quality of the

child is the main reason for the illness. From a general view, the child was only malnutrition but the

arthropods /larva present in the packets of biscuits lead to the real cause of the illness. So in this

way entomology is helpful in forensics.

Some symptoms of child abuse/neglect that is usual include

v Malnutrition,

v Bruises or Abrasions,

v Healing fractures, and

v Repetitive or cumulative injuries upon examination of skin, soft tissues, and bones.

If any child is found to be a victim of abuse cases, then forensic entomology is utilized in estimating the time since the abuse last happened, and in case of fatal cases, the Post-mortem Interval (PMI) is done. The blowfly larvae and pupae and in some cases maggots are formed then they can produce evidence that may determine the length of neglect of the child.

Section 304A will be charged against the accused which tends to the punishment for “ Causing death by negligence”.

Elder Abuse

Elder abuse relates to the abuses happens with the senior citizens. This type of abuse includes:

v physical force against an old person that causes them physical harm

v Elderly neglect is also not providing for their basic daily needs.

Older widowed women living on fixed incomes are the most rated victims. In this type of case, a typical abuser is usually a family member such as a spouse or a spoiled child. In the case of non-relatives, an abuser is generally nursing home attendants.

The usual symptoms that are visible of elderly abuse is broken bones, bedsores, cuts, bruises, etc. Sometimes the signs are lack of food and water, wearing the same clothes repetitively, weight loss, not bathing regularly, anxiety, withdrawal from social contact, depression, etc.

We can better understand it with an example:-In Germany an elderly woman was found dead in September 2002 in her apartment. Her foot was wrapped in a plastic bag, and the wrapped foot was infected with Luciliasericata larvae commonly known as (Green Bottle Fly). Due to not proper cleaning of her toilet and it was covered by cloth piece, which invited flies to feed upon that. The post mortem interval (PMI) cleared that the death was 2 days ago while maggots were found to be about 4 days old. The report clearly found that the maggots had been feeding on her foot while she was still alive for about a week ago.

In the above scenario we may say that larva of green bottle fly leads to the real cause of death. It is better proven in this, that the old lady was alive and she died due to the insects feeding on her flesh. This also shows the case of negligence that the old lady was not attended by anyone for two days.

Forensic entomologist use insects to determine the post-mortem interval (PMI) and the person were neglected or not. In several cases where neglect was the major factor in a person’s death.

Some sections are mentioned of Indian Penal Code which prevents the elder abuse:

Section 20 of the Hindu Adoption and Maintenance Act, 1956 seeks an obligatory provision to maintain an aged parent.

Section 125 of Criminal Procedure Code says that the elder parents can claim maintenance from their children.

Maintenance and Welfare of Parents and Senior Citizens Bill, 2007, seeks to make it legal for the children or property holders to maintain their parents or senior citizens of the family. The children as sons, daughters, grandsons and granddaughters according to the bill.

Animal Abuse

Animal abuse is a type of abuse includes the negligence of animals or pets. Animal abuse is defined as, divest of an animal of food, shelter, socialization, water, or veterinary care even torturing, mutilating, maiming, or killing an animal is also included.

Any injury leads to causes of myiasis in animals, or the presence of excretory material on the skin of the animal leads to living animal inviting insects.

An example which supports the insects are indicators of abuse, a dog was taken to the veterinary doctor with severe edema of the muzzle and several facial fractures of cause. When the case was taken seriously the radiographs indicates that almost 100 pieces of lead buckshot were present in the area of the fracture. We can say that the maggots present there alerted the doctor and helped in saving the case getting worsen.

The maggots found on maxilla of the dog draws the attention of the doctor towards the serious cause.

Some sections are mentioned of IPC and Cr.P.C which prevents the animal abuse:

Section 11 (i) of Prevention of Cruelty to Animals Act, 1960 says that abandoning an animal, leaving it in a situation that it suffers pain due to starvation or thirst, is a punishable offence.

According to section 11 (1) (h) of The Prevention of Cruelty to Animals Act, 1960 If an owner fails to provide its pet with sufficient food, drink or shelter, he/she shall be liable for a punishable offence.

According to section 98 of the Transport of Animals Rules, 1978, animals should be healthy and in good condition while transporting them.

IPC Sections 428 and 429 says that to kill or maim any animal is a punishable offence.

Section 11(1)(i) and Section 11(1)(j), PCA Act, 1960 claims that Abandoning any animal for any reason can land you in prison for up to three months.

Section 11(1)(d) Prevention of Cruelty to Animals, (Transport of Animal) Rules, 2001 and Motor Vehicles Act 1978 relates to the conveying or carrying animals whether in or upon any vehicle, in any manner or position which causes discomfort, pain or suffering is a punishable offence under two Central Acts.

Conclusion

Forensic entomology is a very vast and expanding field. Increasement in a number of cases leads to the development in researches. Use of insects as indicators of abuse /neglect is not a common occurrence in the current scenario, but sometimes popular culture makes forensic entomology as a strict and useful factor in legal cases.

References:

1. ^” abuse.” Dictionary.com Unabridged (v 1.1). Random House, Inc. 21 Mar. 2008. <Dictionary.com http://dictionary.reference.com/browse/abuse

2. ^“neglect.” The American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. 21 Mar. 2008. <Dictionary.com http://dictionary.reference.com/browse/neglect>.

3. ^ Jump up to: abGennard DE. Forensic Entomology: An Introduction. Wiley & Sons Ltd. 2007;1:13-14.

4. ^ Sherman RA, Hall MJR, Thomas S. Medicinal Maggots: An Ancient Remedy for Some Contemporary Afflictions. Annu Rev Entomol. 2000;45:55–81.

5. ^Guerrini VH. Ammonia Toxicity and Alkalosis in Sheep Infested by Luciliacuprina Larvae. Int J Parasitol. 1988;18:79–81.

6. ^“Child Abuse Prevention and Treatment Act.” Administration for Children and Families. 10 FEB 2006. U.S. Department of Health and Human Services. 21 Mar 2008 <http://www.acf.hhs.gov/programs/cb/laws_policies/cblaws/capta/index.htmArchived 2008-03-30 at the Wayback Machine>

7. ^ Jump up to ab Spitz WU. Medicolegal Investigation of Death. 4th ed. Springfield: Charles C Thomas Ltd, 2004; 8:357-363.

8. ^Benecke, Mark, RüdigerLessig. “Child Neglect and Forensic EntomologyArchived 2011-07-07 at the Wayback Machine.” Forensic Science International 155-9(2001): 120 ff.

9. ^ Jump up to ab Elder Abuse and Neglect. Molly Hofer. 2008. http://www.urbanext.uiuc.edu/elderabuse/signs.html.

10. https://indiankanoon.org/doc/17630/

11. https://ift.tt/2Z1Lg8m

12. https://ift.tt/2Z5hn77

Author – Aditi, Intern at Dept. of Forensic Science & Criminal Investigation, Legal Desire & Insights (June 2020)

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seemabhatnagar · 9 months ago

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"Mutual Consent Divorce: Maintenance Waivers and Legal Implications"

Gaurav Mehta v. Anamika Chopra

Crl. Revision 4152/2023 filed by the husband

Crl. Revision 4452/2023 filed by wife for enhancement of maintenance

Before the High Court of Allahabad

Heard by the Bench of Hon’ble Mr. Justice Vipin Chandra Dixit J

Order: Crl. Revision filed by the revisionist husband Gaurav Chopra was allowed as the respondent-wife had already waived off her right to claim maintenance at the time of divorce.

Crl. Revision of the Wife was dismissed.

Background

This is a case where Divorce based on mutual consent was allowed by the Family Court between the parties.

Fact

The marriage between the parties was solemnized in February 2004 according to Hindu rites and customs. A son out of wedlock was born in December 2004. Things were all well till August 2006 & thereafter due to differences between them, they started living separately.

Both parties filed divorce by mutual consent u/s 13B (1) of the Hindu Marriage Act before the District Judge, New Delhi.

Out of all the terms and conditions of divorce by mutual consent one of the Terms was that the wife will not claim any amount of money by way of stridhan, maintenance, compensation, damages, etc. (past, present, and future) from her husband.

It was also agreed between the parties that the son, shall remain in the custody of his mother till he attains the age of majority.

The husband was given visitation rights to visit and meet his son once a month.

The divorce petition was decreed in August 2007 on the terms and conditions agreed between the parties.

After six years of divorce, a maintenance petition was filed by the son through her mother in the court of Principal Judge, Family Court, Gautam Buddh Nagar in the year 2013.

The maintenance petition was allowed by the Family Court in November 2019 granting maintenance in favor of the son at the rate of Rs.15,000/- per month from the date of filing the petition the father used to pay the same to his son.

The wife also filed an application before the Family Court claiming 25% of the income of the husband as maintenance in February 2020.

The wife also moved an application in August 2020 claiming interim maintenance @ Rs. 50,000/ per month.

Submission of the Husband

The husband objected pleading that the divorce petition was decreed with mutual consent and the wife had agreed that she would not claim any amount towards stridhan, maintenance, compensation damages, etc.

The Family Court allowed the application of interim maintenance awarding Rs. 25,000/- to the wife.

Submission of the wife in person

She is facing acute hardship.

The son is studying in Toronto Canada.

So long she was able to manage the expenses she didn’t claim. Now she is unable to as such she has filed a maintenance petition and the Family Court has allowed a very meager amount of Rs.25,000/-

Law

Once the wife waives her right to maintenance from her husband at the time of divorce and the divorce decree was passed on the terms and conditions of the agreement, it is not open to the wife to claim maintenance from her husband in the future.

Section 125(4) Cr.P.C. also provides that no wife shall be entitled to receive the allowance for maintenance from her husband if she is living separately by mutual consent.

Observation of the Court

The wife has waived off her right to claim maintenance by filing an affidavit in the divorce petition as such the Revision petition filed by the wife claiming maintenance, itself is not maintainable and the Family Court has committed gross illegality in granting interim maintenance @ Rs. 25,000/- per month to the wife.

Seema Bhatnagar

#divorce #mutual consent #maintenance claim #rights waived #rights reclaimed #Allahabad high court

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rickychopra · 1 year ago

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Offences under other criminal laws include the Prevention of Corruption Act, 1988, juvenile justice Act, 2000, narcotics and drug violations, immoral traffic (prevention), arms act, electricity theft, maintenance claims under Section 125 of Cr.P.C., 1973, contempt of courts Act, 1971, and cheque banquet/dishonour of cheques. It is essential to be aware of these rights and ensure protection for the accused during their trial.

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todaybharatnews · 6 years ago

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via Today Bharat nbsp; In its order, the court stated that ldquo;economic abuse also constitutes domestic violencerdquo;.The Supreme Court on Tuesday observed that a partner in a live-in relationship is eligible to seek maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005. A bench, headed by Chief Justice Ranjan Gogoi and comprising Justice UU Lalit and Justice KM Joseph, stated the same while answering questions referred to it. ldquo;In fact, under the provisions of the DVC Act, 2005 the victim, that is, the estranged wife or live-in partner would be entitled to more relief than what is contemplated under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also,rdquo; the bench said. ldquo;What would be significant to note is that economic abuse also constitutes domestic violence,rdquo; the order further stated. The Jharkhand High Court had said that Section 125 of the CrPC (Order for maintenance of wives, children and parents) would not apply to a woman who is not the legally wedded wife of the person, from whom she can claim maintenance. In 2013, Justice T S Thakur and Justice Kurien Joseph referred three questions to be answered by a larger bench in Lalita Toppo vs. the State of Jharkhand. The questions referred to the larger bench were: 1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125, Cr.P.C. 2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125, CrPC having regard to the provisions of the Domestic Violence Act, 2005? 3. Whether a marriage performed according to the 5 customary rites and ceremonies without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125, CrPC? The three-judge bench of the Supreme Court declined to answer the questions as they were based on orders that came prior to the Protection of Women from Domestic Violence Act, 2005, and disposed of the matter.

#IFTTT #Today Bharat

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legalcops · 7 years ago

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Application for maintenance by wife Under section 125

Application for maintenance by wife U/S 125 Cr.P.c IN THE FAMILY COURT (WEST), TIS HAZARI COURTS, DELHI Maintenance Case ._______ of____________ In Re:- A.B. w/o C.D. __________ R/o …….Petitioner Versus C.D. s/o_______________ residing at ____________ …….Respondent APPLICATION FOR MAINTENANCE BY WIFE UNDER…

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mensrightsff · 7 years ago

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RT @kumadeep82: Section Cr.P.C 125 - Tool to defeat purpose of WomenEmpowerment - "Beti Bachaoo, Beti Padhaoo" Mission - by today's era well educated women. Cr.P.C 125 make them parasite on husband and they enjoy money by harassing husband. @ShoneeKapoor @rsprasad @smritiirani @narendramodi https://t.co/4QfPv4xEdl

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loyallogic · 7 years ago

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Important Supreme Court Cases on Maintenance Rights

In this article, Hritik Sharma discusses Important Supreme Court Cases on Maintenance Rights.

Cases on Maintenance Rights

Following are the cases which have brought important changes to the laws related to maintenance.

Right to maintenance – Section 125 CrPc

Mohd. Ahmed Khan v. Shah Bano Begum

Facts

The appellant-husband who was an advocate by profession was married to the respondent-wife in the year 1932, they had five children-three sons and two daughters.

In 1975, the appellant drove the respondent out of the matrimonial home.

Verdict

Whether Magistrate can grant Interim Maintenance

Savitri W/O Shri Govind Singh v. Shri Govind Singh Rawat

Under this case, the Supreme Court did come into the questions of the provisions that whether the Interpretation of the Cr.P.C. Provides the Provision for Interim Maintenance.

Facts

The petitioner filed a petition under section 125 of the Cr.P.C., 1973, before the Magistrate for an order against her husband directing him to pay the maintenance.

Verdict

Under the Section: The Section 125 of the code confers power on a magistrate to direct a person having sufficient means but who neglects or refuses to maintain:

His wife, unable to maintain herself; or,

His legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or,

Interpretation

What Amount will be reasonable for the Wife as Maintenance

Kulbhushan Kumar vs Raj Kumari & Another

The Maintenance was given to wife was determined by the court as the decision was taken keeping in mind about the situation, as the wife was receiving money from her father.

Facts

In 1951, the respondent sent a registered letter claiming maintenance, on the behalf of herself and the daughter, and by the year 1954, she filed the suit for maintenance.

In this appeal to the Supreme Court by the respondent on the question raised for the allegiance of the maintenance payable to the wife.

Verdict

The Court Held that:

There was no evidence of her inheriting any property of her father on his death;

Whether the wife is able to take the maintenance where her marriage is bigamous in nature

Badshah v. Urmila Badshah Godse and Another

The Supreme Court determined that a victim of a bigamous marriage is entitled to maintenance.

Facts

Verdict

Based on these facts, the SC opined that there cannot be a denial of the benefit permitted in the form of maintenance to the respondent, as the petitioner is taking advantage of his own wrong,

The Answer is Negative, as the purpose of Section 125 Cr P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the Section 125 Cr.P.C.

Whether a wife has a right to get maintenance from her husband who is already divorced?

Shabana Bano v. Imran Khan

In this Case, the Supreme Court did come across the situation where the wife after getting divorced from her husband appeals for Maintenance.

Facts

The Appellant Shabana Bano was married to the respondent Imran Khan according to Muslim rites at Gwalior in the month of November in 2001.

Verdict

The appellant’s petition under Section 125 of Cr.P.C. would be maintainable before the Family Court as long as the appellant does not remarry.

The Quantum of Maintenance which will be awarded, according to the Section 125 Cr.P.C. cannot be restricted for the Iddat Period Only.

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legalresolved-blog · 8 years ago

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#maintenance

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muralimohan · 5 years ago

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2020[6]APHC

Whether a woman, whose marriage was annulled by a decree of nullity under Section 12 of the Hindu Marriage Act can claim maintenance under Section 125 Cr.P.C. on par with a divorced wife and whether her claim under Section 125 Cr.P.C. for maintenance is legally sustainable or not? 2020[6]APHC 1

Whether the Gramakantam land whereon the houses are constructed or intended to be constructed does not…

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marymosley · 6 years ago

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Maintenance Awarded to a Wife is Not a Bounty: Delhi HC

It needs no Albert Einstein to conclude that the Delhi High Court just recently on May 17, 2019 in a latest judgment titled Vikas Bhutani vs State & Anr. in Crl Rev P. 579/2017 & Crl. M.A. 12671/2017 (stay) has very forcefully held that maintenance awarded to a wife is not a bounty and it is awarded to her for her survival. This latest, landmark and laudable judgment authored by Justice Sanjeev Sachdeva (oral) was firm in laying down what has been just stated above. The Bench of Justice Sanjeev Sachdeva was considering the question whether maintenance should be awarded from the date of the application or that of the order.

First and foremost, the ball is set rolling in para 1 of this noteworthy judgment by observing that, “Petitioner impugned order dated 29.05.2017 whereby interim maintenance has been assessed by the Trial Court. On an application filed by the respondent under Section 12 of the Protection of Women from Domestic Violence Act, 2005, an amount of Rs 40,000/- has been fixed as interim maintenance.”

On the one hand, para 2 states that, “Learned counsel for the petitioner submits that the Trial Court has erred in not appreciating that the respondent had already filed an application under Section 125 Cr.P.C. and interim maintenance of Rs 15,000/- was assessed in the said application and petitioner had continued to pay the said amount of Rs. 15,000/- per month.” Para 3 then reveals that, “It is informed that the said application under Section 125 Cr.P.C has since been withdrawn”.

Furthermore, para 4 then states that, “Learned counsel submits that the Trial Court further erred in relating back the maintenance to the date of the application and not restricting it to the date of order as respondent is already receiving maintenance of Rs. 15,000/- under orders passed in an application under Section 125 Cr.P.C. The quantum assessed by the trial court has not been assailed on merits.”

Needless to say, it is then rightly noted in para 5 that, “The only contention of learned counsel for the petitioner is that since the respondent was already receiving a sum of Rs. 15,000/-, the order should not have related back to the date of the application but should have been from the date of the order.”

On the other hand, para 6 then discloses that, “Learned counsel for the respondent submits that even the amount of Rs. 15,000/- has not been fully paid.” This is very serious and it cannot be ignored. The amount should have been fully paid.

After hearing both the sides, Justice Sanjeev Sachdeva then holds in para 7 that, “I am unable to accept the contention of the learned counsel for the petitioner.” In para 8 it is then further stated that, “One has to look at the nature of the maintenance awarded.”

More significantly, while dwelling on why maintenance is awarded, it is then held in para 9 that, “The object of grant of maintenance is to afford a subsistence allowance to the wife, who is not able to maintain herself, then the award normally should be from the date of the application. For the court to award maintenance from the date of the order there have to be compelling circumstances for the court to take such a view. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. When the trial court comes to conclusion after trial that the wife is entitled to an amount of maintenance the assessment in fact relates back to the date of the application. When the assessment relates back to the date of the application then there have to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the order.”

What’s more, it is then envisaged in para 10 that, “This court in Rekha Sabharwal & Anr. Vs Jitender Sabharwal 2018 SCC OnLine Del 12448; Crl.M.C. 3647 of 2014 has been held that the maintenance is to relate back to the date of the application and not from the date of the order.” It is then stipulated in para 11 that, “A coordinate bench of this court in Bimla Devi Vs Shamsher Singh (2015) 224 DLT (CN8) 8 held that “Maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him. A moral and legal obligation and duty is cast upon the husband to maintain his wife. The necessary corollary is that from the time the wife starts residing separately from her husband, she can claim maintenance from him”.”

Interestingly enough, it is then pointed out in para 12 that, “The Supreme Court of India in Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) 9 SCC 632 held that “the High Court was not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intends to pass such an order, he is required to record reasons in support of such order.”

Not stopping here, it is then enunciated in para 13 that, “Further, in Jaiminiben Hirenbhai Vyas & Anr vs Hirenbhai Ramesh Chandra Vyas & Anr. (2015) 2 SCC 385 the Supreme Court held that “Section 125 of the Cr.P.C., therefore, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the Court may choose either date. It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354(6) of the Cr.P.C., the Court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case”.”

To be sure, it is then clarified in para 14 that, “Clearly, the maintenance is to be from the date of the application. Further, as noticed above there is no challenge to the quantum of maintenance assessed by the trial court.”

Finally and most importantly, let us now come to the concluding paras. Para 15 envisages that, “Accordingly, petitioner shall pay maintenance at the rate of Rs. 40,000/- per month from the date of the application i.e. March, 2014. Petitioner would be entitled to an adjustment of the amount that petitioner has already paid in terms of the order passed in the application under Section 125 Cr.P.C. and the interim orders passed by this court.”

Going forward, Justice Sanjeev Sachdeva then observes in para 16 that, “In view of the above, I find no merit in the petition. The petition is accordingly dismissed. Interim order dated 08.08.2017 is vacated.”

Be it noted, it is then held in para 17 that, “After the petition was dismissed, learned counsel for the petitioner prayed for some time to take instructions – as to in how much time petitioner would be in a position to clear the arrears.” Lastly, it is then held clearly in para 18 stating that, “At request, list for directions on 24.05.2019.”

To conclude, the Delhi High Court in this notable and extremely laudable judgment makes it very clear that maintenance awarded to a wife is not a bounty. This has been explained in detail in para 9 while explaining the object of maintenance. There is nothing more left to clarify as everything has been explained in detail! All the lower courts must always abide by it while hearing such cases! There can be no denying it!

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