As a divorced woman, if she cannot maintain herself or remains unmarried, the man who was, once, her husband continues to be under a statutory duty and obligation to provide maintenance to her. However since the decree of divorce was passed on the ground of desertion by wife, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. Continue reading
KEYWORDS:-Muslim Husband – Second Marriage- Maintenance –
AIR 1987 SC 1103 : (1987) 2 SCR 773 : (1987) 2 SCC 285 : JT 1987 (2) SC 55 : (1987) 1 SCALE 672 : (1987) CriLJ SC 980
(SUPREME COURT OF INDIA)
|Begum Subanu alias Saira Banu and another||Appellant|
|A.M. Abdul Gafoor||Respondent|
(Before : A. P. Sen And S. Natarajan, JJ.)
Criminal Appeal No. 605 of 1986 (Arising out of S. L. P. (Cri.) No. 3847 of 1985) , Decided on : 03-04-1987.
Criminal Procedure Code, 1973—Section 125—Maintenance—Entitlement of muslim wife—Second marriage by husband—The first wife is entitled to claim maintenance.
The purpose of the Explanation is not to affect the rights of a muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife is permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more tolerant and sympathetic then a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife in one and the same house. It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband’s right to marry again. The Explanation has, therefore, to be seen in its full perspective and not disjunctively. Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistress.
Maintenance—muslim wife—Entitlement of—Second marriage by husband—Permission under personal law for second marriage does not affect the entitlement of muslim woman who has a right to seek maintenance from the husband who has either married or taken as mistress.
Criminal Procedure Code, 1973—Section 125—Maintenance—muslim wife—Entitlement of—Second marriage by husband—Permission under personal law for second marriage does not affect the entitlement of muslim woman who has a right to seek maintenance from the husband who has either married or taken as mistress.
Counsel for the Parties:
Mrs. Geeta Luthra and Mr. D. Goburdhan, Advocates, for Appellants
Mr. S. C. Birla, Advocate, for Respondent.
Natarajan, J—Is a muslim wife whose husband has married again worse off under law than a muslim wife whose husband has taken a mistress to claim maintenance from her husband? Can there be a discrimination between muslim women falling in the two categories in their right to claim maintenance under S. 125, Criminal P.C., 1973 (for short the “Code”)? These fundamental questions of a startling nature run as undercurrents beneath the placid waters of this seemingly commonplace action for maintenance by a muslim wife against her husband. We have projected these fundamental issues in the prefatory itself because these larger questions also arise for consideration in this appeal.
2. Now for a resume of the facts. The appellant was married to the respondent on 11-5-80 and she begot him a girl child on 9-5-81. On grounds of neglect and failure to provide maintenance she filed a petition under S. 125 of the Code in the Court of the Judicial First Class Magistrate, Kasargod, to seek maintenance for herself and the child at ` 500/- and ` 300/- per month respectively. The Magistrate dismissed the petition saying the appellant had failed to establish adequate justification for living separately. A revision was preferred to the Sessions Judge of Tellicherry. During the pendency of the revision the respondent married one Sahida Begum on 18-10-84, as his second wife. It was, therefore, urged in the revision that irrespective of the other grounds the second marriage of the respondent was by itself a ground for grant of maintenance. The Sessions Judge skirted the issue by taking a devious view that since the respondent had contracted the second marriage after giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage, the appellant was not entitled to claim maintenance. However, in so far as the child is concerned the Sessions Judge granted maintenance to it at ` 100/- per month. The appellant then preferred a petition to the High Court under S. 482 of the Code for grant of maintenance to her and for enhancing the maintenance awarded to the child. The High Court declined to interfere saying that the concurrent findings of the Courts below precluded the appellant from agitating her claim any further. The aggrieved appellant has approached this Court of last resort under Art. 136 of the Constitution for redressal of her grievance.
3. The principal controversy in the appeal centres round the rights and liabilities of the parties in the context of the second marriage entered into by the respondent on 18-10-84. The appellant’s case is that the second marriage has added a new dimension to her maintenance action and she has become entitled under law to live separately and claim maintenance. The counter argument of the respondent is that he was driven to the necessity of marrying again because the appellant failed to rejoin him but even so he had offered to take her back and maintain her and the said offer exonerated him from his liability to pay maintenance. The main defence, however, urged is that since he is permitted by muslim law to take more than one wife his second marriage cannot afford a legal ground for the appellant to live separately and claim maintenance. These rival contentions fall for our determination in this appeal.
4. The justification put forward for the second marriage cannot be taken as a tenable defence, even if such a defence is open, because there is no evidence to show that the respondent had asked the appellant to rejoin him and she had declined to do so before the respondent took his second wife. Therefore, what really needs consideration is whether the second marriage of the respondent confers a right upon the appellant to live separately and claim maintenance and secondly whether her rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife. The further question to be decided is whether even if the respondent is liable to pay maintenance, he stands absolved of his liability after his offer to take back the appellant and maintain her.
5. For adjudicating the rights of the parties we must construe the Explanation and determine its scope and effect. The Explanation reads as follows:-
“If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
6. Before entering upon our discussion, we may refer to some of the decisions rendered by the High Courts on the scope and effect of the Explanation. We are setting out only some of the cases and not making an exhaustive reference because the purpose of the reference is only to show the divergent views taken by several High Courts. Furthermore, we have grouped the cases on broad classifications and not with reference to the line of reasoning adopted in each case. In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under S. 488, Criminal P.C. 1898:(1) Bayanna v. Devamma, 1953 Mad WN Crl 243; (2) Kandaswami v. Nachammal, AIR 1963 Mad 263; (3) Syed Ahmad v. N. P. Taj Begum, AIR 1958 Mys 128; (4) Shambu v. Ghalamma, AIR 1966 Mys 311; (5) Teja Bai v. Shankarrao, AIR 1966 Bom 48; (6) Mohammed Haneefa v. Mariam Bi, AIR 1969 Mad 414.
7. In the following cases a contrary view was taken holding that the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of sub-s. (1) of S. 488; (7) Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134 (8) Rupchand v. Charubala, AIR 1966 Cal 83 (9) Ishar v. Soma Devi, AIR 1959 Punj 295 (10) Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595.
8. A third line of view was taken in Ramji Malviya v. Munni Devi, AIR 1959 All 767 where it was held that ordinarily remarriage will be a sufficient ground for refusing to live with the husband but if the remarriage had been occasioned by the wife’s unjust refusal to live with her husband she cannot take advantage of her own wrong and claim maintenance.
9. There are two decisions, one of the Kerala High Court rendered by V. R. Krishna Iyer, J., as he then was, and the other of the Andhra Pradesh High Court rendered by Chinnappa Reddy, J., as he then was, which require mention because they pertain to maintenance actions by muslim wives whose husbands had married again. Krishna Iyer, J. held as follows in Sahulameedu v. Subaida Beevi, 1970 Ker LT 4.
“It behoves the Courts in India to enforce S. 488(3), Criminal P.C. in favour of Indian women, Hindu, muslim or other. I will be failing in my duty if I accede to the argument of the petitioner that muslim women should be denied the advantage of para 2 of the proviso to S. 488(3).” Chinnappa Reddy, J held in Chand Begum v. Hyderbaig, 1972 Cri LJ 1270 (Andh Pra) as under:
“Therefore, a husband who married again cannot expect the Court to come to his rescue if he wants the first wife to share the conjugal home with a co-wife. If she decides to live separately he is bound to provide a home for her and maintain her. If he does not do that, he neglects or refuses to maintain her within the meaning of S. 488(l), Cr. P.C. Thus the offer of a husband who has taken a second wife to maintain the first wife on condition of her living with him cannot be considered to be a bona fide offer and the husband will be considered to have neglected or refused to maintain the wife.”
10. Lastly, we must also refer to the decision of this Court in Mohd. A. Khan v. Shah Bano Begum, (1985) 3 SCR 844 at page No. 856 wherein the Explanation came to be scanned by the Court while examining the larger question regarding the rights of divorced muslim wives to claim maintenance under S. 125 of the Code. The relevant observation of the Court is in the following terms:-
“The conclusion that the right conferred by S. 12 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to muslims, by the provision contained in the Explanation to the second proviso to S. 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order …….. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that S. 125 overrides the personal law, if there is any conflict between the two.”
11. Having referred to the views taken by some of the High Courts and this Court about the ambit of the Explanation, we will now proceed to consider its terms and its operative force. Though we stand benefited by the enlightenment derived from the decisions referred to above, we are of opinion that the Explanation calls for a more intrinsical examination than has been done hitherto. Sub-s. (1) of S. 125 inter alia provides that if a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, the Magistrate may, upon proof of such neglect or refusal, order the person to make a monthly allowance for the maintenance of his wife. The second proviso to sub-s. (3) lays down that if a person liable to pay maintenance offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Magistrate may consider the grounds of refusal, and may make an order for maintenance notwithstanding the husband’s offer, if he is satisfied that there is just ground for ordering maintenance. Then comes the Explanation which says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for the wife’s refusal to live with him. In the reported decisions where the Explanation has been construed, as entitling a muslim wife to claim maintenance on the basis of the Explanation, the Courts have only taken into consideration the first limb of the Explanation, viz.. “if a husband has contracted marriage with another woman.’” Focussing attention on that part of the Explanation, the Courts have held that the Explanation is of common application to all wives whose husbands have contracted another marriage irrespective of the fact the personal law governing the parties permits another marriage during the subsistence of the earlier marriage. We would like to point out that the Explanation contemplates two kinds of matrimonial injury to a wife, viz., by the husband either marrying again or taking a mistress. The Explanation places a second wife and a mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is not to affect the rights of a muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more tolerant and sympathetic than a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife in one and the same house. It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband’s right to marry again. The Explanation has, therefore, to be seen in its full perspective and not disjunctively Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. Approaching the matter from this angle, we need not resort to a comparison of muslim wives with Hindu wives or Christian wives but can restrict the comparison to muslim wives themselves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination. It is this aspect of the matter which we feel has not been noticed hitherto.
12. Even if the Explanation is viewed in, the larger context of the provisions of S. 125 the conclusion reached above is inescapable S. 125, its forerunner being S. 488, has been enacted with the avowed object of preventing vagrancy and destitution. The section is intended to ensure the means of subsistence for three categories of dependents viz. children, wives and parents who are unable to maintain themselves. The three essential requisites to be satisfied before an order of maintenance can be passed are that (1) the person liable to provide maintenance has sufficient means; (2) that he has neglected or refused to maintain and (3) the dependent/ dependents is/are unable to maintain himself/herself/ themselves as the case may be. The Legislature being anxious that for the sake of maintenance, the dependents should not resort to begging, stealing or cheating, etc., the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not. In the case of wives, whether their ties of marriage subsist or not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating, etc., but they should also not feel compelled, for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married. This position emerges when we take an overall view of sub-secs. (1), (4) and (5). While sub-s. (4) provides that a wife shall not be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or if she lives separately by mutual consent. sub-s. (5) provides that an order of maintenance already passed can be cancelled for any of the abovesaid reasons. Thus by reason of sub-ss. (4) and (5) a husband can avoid his liability to pay maintenance if his wife is living in adultery. Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, the respondent’s contention that his taking another wife will not entitle the appellant to claim separate residence and maintenance cannot be sustained. The Explanation is of uniform application to all wives including muslim wives whose husbands have either married another wife or taken a mistress.
13. It only now remains for us to consider the further defence of the respondent that in view of his offer to take back the appellant and maintain her he stands absolved of his liability to pay maintenance. The offer to take back the appellant had been made only before the Revisional Court and that too after the second marriage had taken place. The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity. As has been pointed out in Chand Begum v. Huderbaig, (supra) a husband, who marries again cannot compel the first wife to share the conjugal home with the co-wife and as such unless he offers to set up a separate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer. It is, therefore, obvious that the offer was only a make-believe one and not a genuine and sincere offer. On the basis of such an insincere offer the appellant’s rights cannot be negated or defeated. It is highly unfortunate that the Sessions Judge and the High Court should have declined to grant maintenance to the appellant in spite of the appellant’s case failing squarely under the Explanation.
14. As the record contains evidence regarding the earnings of the respondent we are in a position to determine the quantum of maintenance for the appellant in this appeal itself instead of remitting the matter to the trial Court or the Revisional Court. The respondent has stated in his counter-affidavit in the special leave petition that his income is only ` 1,000/- per month. The appellant has stated in her petition for maintenance that the respondent was getting ` 1,500/- per month by way of salary and ` 500/- per month by way of income from properties. In the four years that have gone by since the maintenance action was instituted the respondent’s income must have certainly increased. Therefore, taking all factors into consideration we fix the quantum of maintenance for the appellant at ` 300/- per month. This amount will be paid with effect from 18-10-1984 when the respondent married a second wife. The arrears of maintenance will be paid by the respondent in five equal instalments, the first of such instalment to be paid during the first week of June 1987. The subsequent instalments will be paid at intervals of three months thereafter, i.e., during the first week of September 1987, first week of December, 1987, first week of March 1988 and first week of June 1988. Future maintenance must be paid before the 10th of every succeeding month. We also enhance the maintenance to the minor girl (second appellant) to ` 200/- per month from ` 100/- per month with effect from 1-1-1987. Default in payment of future maintenance or any instalment of the arrears will entitle the appellant to levy execution against the respondent under S. 125(3) of the Code and realise the amount.
15. The appeal will stand allowed accordingly.
KEYWORDS:-Maintenance to Muslim wife-
whether the law of Islam is capable of evolution ?
AIR 1985 SC 945 : (1985) 3 SCR 844 : (1985) 2 SCC 556 : (1985) 1 SCALE 767 : (1985) CriLJ SC 875
(SUPREME COURT OF INDIA)
|Mohd. Ahmed Khan||Appellant|
|Shah Bano Begum and others||Respondent|
(Before : Y. V. Chandrachud, C.J.I., D. A. Desai, O. Chinnappa Reddy, E. S. Venkataramiah, And Ranganath Misra, JJ.)
Criminal Appeal No. 103 of 1981 , Decided on : 23-04-1985.
Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.
Note: The position of law is not the same after enactment of Muslim Woman (Protection of Rights on Divorce) Act, 1986.
Maintenance—Wife—Meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.
Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.
Chandrachud,C.J—This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance. Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. “Na stree swatantramarhati” said Manu, the law giver:The woman does not deserve independence. And. it is alleged that the ‘fatal point in Islam is the degradation of woman’ ‘Selections from Kuran’ – Edward William Lane 1843, Reprint 1982, page XC (Introduction). To the Prophet is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight; it will break; therefore treat your wives kindly.’
2. This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage. 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 in the court of the learned Judicial Magistrate (First Class), Indore, asking for maintenance at the rate of ` 500/- per month. On November 6, 1979 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent’s petition for maintenance was that she had ceased to be wife by reason of the divorce granted by him, that he was therefore under no obligation to provide maintenance for her, that he had already paid maintenance to her at the rate of ` 200/- per month for about two years and that, he had deposited a sum of ` 3000/- in the court by way of dower during the, period of iddat. In August, 1979 the learned Magistrate directed the appellant to pay a princely sum of ` 25/- per month to the respondent by way of maintenance. It. may be mentioned that the respondent had alleged that the appellant earns a professional income of about ` 60,000/- per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to ` 179.20 per month. The husband is before us by special leave.
3. Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife? Undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of a pittance during the period of iddat? And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him for ever from the duty of paying adequately so as to enable. her to keep her body and soul together? Then again, is, there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’? These are some of the important, though agonising, questions which arise for our decision.
4. The question as to whether Section 125 of the Code applies to Muslims also is concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidaalli Chothia (1979) 2 SCR 75 and Fazlunbi v. K. Khader Vali (1980) 3 SCR 1127. Those decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under Section 125. But, a Bench consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ., were inclined to the view that those cases are not correctly decided. Therefore, they referred this appeal to a larger Bench by an order dated February 3, 1981, which reads thus:
“As this case involves substantial questions of law of far-reaching consequences, we feel that the decisions of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia and Fuzlunbi v. K. Khader Vali require reconsideration because, in our opinion, they are not only in direct contravention of the plain and unambiguous language of S. 127(3)(b) of the Code of Criminal Procedure, 1973 which far from overriding the Muslim Law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed. The decision also appears to us to be against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by S. 2 of the Muslim Personal Law (Shariat) Application Act, 1937 – an Act which was not noticed by the aforesaid decisions. We, therefore, direct that the matter may be placed before the Hon’ble Chief Justice for being heard by a larger Bench consisting of more than three Judges.”
5. Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus:
“Order for maintenance of wives, children and parents”
125. (1) If any person having sufficient means neglects or refuses to maintain –
(a) his wife, unable to maintain herself,
(b) to (d) **********
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife … … …. at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit …… Explanation – For the purposes of this Chapter,
(a) …. …. ….
(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) …. …. …. ….
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated. by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation – If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
6. Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus:
“Alteration in allowance
127. (1)-(2) **********
(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, –
(i) in the case where such sum was paid before such order, from the date on which such order was made.
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance. has been actually paid by the husband to the woman.”
7. Under Section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to Section 125(1), ‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu. Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain, themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of Section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character.
8. Sir James- Fitz James Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which Section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences’ . In Jagir Kaur v. Jaswant Singh, (1964) 2 SCR 73 at page No. 84 Subba Rao, J. speaking for the court said that Chapter XXXVI of the Code of 1898 which contained Section 488, corresponding to Section 125, “intends to serve a social purpose”. In Nanak Chand v. Chandra Kishore Agarwala (1970) 1 SCR 565, Sikri, J., while pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and that of Section 488 was different, said that Section 488 was “applicable to all persons belonging to all religions and has no relationship with the personal law of the parties”.
9. Under Section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provision regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to Section 125(1), which provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1898 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of ‘wife’ so as to include a divorced woman lends even greater weight to that conclusion. ‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.
10. The conclusion that the right conferred by Section 125 can be exercised irrespective. of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to Section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the’ Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance, notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order. According to the Explanation to the proviso:
“If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
It is too well-known that “A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four; the marriage is not void; but merely irregular”. (see Mulla’s Mahomedan Law, 18th Edition, paragraph 255, page 285, quoting Baillie’s Digest of Moohummudan Law; and, Ameer Ali’s Mahomedan Law, 5th Edition, Vol, II, page 280). The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that Section 125 overrides the personal, law, if there is any conflict between the two.
11. The whole of this discussion as to whether the right conferred by Section 125 prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the. Muslim Personal Law. The argument that by reason of Section 2 of the Shariat Act, XXVI of 1937, the rule of decision in matters relating, inter alia, to maintenance “shall be the Muslim Personal Law” also proceeds upon a similar assumption. We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because, in so far as it lies in our, power, we wanted to set at rest, once for all, the question whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict.
12. The next logical step to take is to examine the question, on which considerable argument has been advanced before, us, whether there is any conflict between the provisions of Section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide, for the maintenance of his divorced wife.
13. The contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat. In support of this proposition, they rely upon the statement of Jaw on the point contained in certain text books. In Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that “After divorce, the. wife is entitled to maintenance during the period of, iddat”. at page 302, the learned author says:
“Where an order is made for the maintenance of a wife under Section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat. The result is that a Mahomedan may defeat an order made against him under Section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that. case. on the ,completion of her iddat.”
Tyabji’s Muslim law (4th Edition, para 304, pages 268-269), contains the statement that:
“On the expiration of the iddat. after talaq, the wife’s right to maintenance ceases, whether based. on the Muslim Law, or on an order under the Criminal Procedure Code.”
According to Dr. Paras Diwan:
“When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim law does not recognise. any obligation on the part of a man to maintain a wife whom he had divorced.”
(Muslim Law in Modern India, 1982 Edition, page 130)
14. These statements in the text books are inadequate to. establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams, which is equivalent to three or four rupees (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of Section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced, wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond, the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact that she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the -expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to. Section 125 of the Code. The outcome of this discussion is that 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.
15. There can be no greater authority on this question than the Holy Quran, “The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God’s will”. (The. Quran – ‘Interpreted by Arthur J. Arberry). Verses (Aiyats).241 and 242 of the Quran show that there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduced below:
|Arabic version||English version|
|Ayat No. 241|
|WA LIL MOTALLAQATAY||For divorced women|
|MATA UN||Maintenance (should be provided)|
|BIL MAAROOFAY||On a reasonable (Scale)|
|HAQQAN||This is a duty|
|ALAL MUTTAQEENA||On the righteous.|
|Ayat No. 242|
|KAZALEKA YUBAIYYANULLAHO||Thus doth God|
|LAKUM AYATEHEE LA ALLAKUM||Make clear His Signs|
|TAQELOON||To you:in order that you may understand.|
(See ‘The Holy Quran’ by Yusuf Ali, Page 96)
The correctness of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word ‘Mata’ in Aiyat No. 241 means ‘provision’ and not ‘maintenance’. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the ‘Mutta Queena’, that is, to the more pious and the more God-fearing, not to the general run of the Muslims, the ‘Muslminin’. In Aiyat 242, the Quran says:
“It is expected that you will use your commonsense”.
16. The English version of the two Aiyats in Muhammed Zafrullah Khan’s ‘The Quran’ (page 38) reads thus:
“For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand.”
17. The translation of Aiyats 240 to 242 in ‘The Meaning of the Quran’ (Vol. 1, published by the Board of Islamic Publications, Delhi) reads thus:
Those of you, who shall die and leave wives behind them, should make a will to the effect that. they should be provided with a year’s maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way;. Allah is All-Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people.
Thus Allah makes clear His commandments for you:It is expected that you will use your commonsense.”
18. In “The Running Commentary of The Holy Quran” (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus:
And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent.”
19. In “The Meaning of the Glorious Quran, Text and Explanatory Translation”, by Marmaduke Pickthall, (Taj Company Ltd., Karachi), Aiyat 241 is translated thus:
For divorced women a provision in kindness:A duty for those who ward off (evil).”
20. Finally, in “The Quran Interpreted” by Arthur J. Arberry, Aiyat 241 is translated thus:
There shall be for divorced women provision honourable – an obligation on the godfearing.
So God makes clear His signs for you:Happily you will understand.”
21. Dr. K. R. Nuri in his book quoted above:
“The Running Commentary of The Holy Quran”, says in the preface:
“Belief in Islam does not mean mere confession of the existence of something. It really means the translation of the faith into action. Words without deeds carry no meaning, in Islam. Therefore the term “believe and do good” has been used like a phrase all over the Quran. Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments . …..”
22. These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of the Quran. As observed by Mr. M. Hidayatullah in his introduction to Mulla’s Mahomedan Law, the Quran is Al-furqan, that is, one showing truth from falsehood and right from wrong.
23. The second plank of the appellant’s argument is that the respondent’s application under Section 125 is liable to be dismissed because of the provision contained, in Section 127(3)(b). That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received “the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce”. That raises the question as to whether, under the Muslim Personal Law, any sum is payable to the wife ‘on divorce’. We do not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce. We find it impossible to accept this, argument.
24. In Mulla’s Principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower, is defined in paragraph 285 as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.” Dr. Paras Diwan in his book, “Muslim Law in Modem India” (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable “in consideration of marriage” but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage. We need not enter into this controversy and indeed, Mulla’s book itself contains the further statement at page 308 that the word ‘consideration’ is not used in the sense in which, it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation, imposed upon the husband as a mark of respect for the wife. We are concerned to find whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called “prompt”, which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce, which occurs in Section 127(3)(b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife is wholly, detrimental to the stance that it is, an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.
25. In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v. Zubaide Bibi 43 Ind App 294 summed up the nature and character of Mahr in these words:
“Dower is an essential incident under the Mussulman law to the status of, marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged oh definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called “prompt” payable before the wife can be called upon to enter the conjugal domicil; the other “deferred” , payable on the dissolution of the contract by the. death of either of the parties or by divorce.” (pp. 300-301).
26. This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain v. Farzand Hasan 65 Ind App 119 at page No. 127. It is not quite appropriate and seems invidious to, describe any particular Bench of a court as “strong” but, we cannot resist the temptation of mentioning that Mr. Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain. These decisions show that the payment of dower may he deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events.
27. It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was an the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs:
“Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is a demand for change in the Muslim Personal. Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystallise before we try to change this customary right or make changes in their personal law. Above all, this is hardly the place where we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous situation. Divorced women have been included and brought within the ambit of clause 125, but a limitation is being imposed by this amendment to clause 127, namely, that the maintenance orders would cease to operate after the amounts due to her under the personal law are paid to her. This is a healthy compromise between what has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem. We have made an advance and not tried to transgress what are the personal rights of Muslim women. So this, I think, should satisfy Hon. Members that whatever advance we have made is in the right direction and it should be welcomed.”
28. It does appear from this speech that the Government did not desire to interfere with the personal law of the Muslims through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystallise on the reforms in their personal law. However, we are not concerned with the question whether the Government did or did not desire to bring about changes in the Muslim Personal Law by enacting Sections 125 and 127 of the Code. As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression ‘wife’ to include a divorced wife. It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife’s refusal to live with him. The provision contained in section 127(3)(b) may have been introduced because of the misconception that dower is an amount payable “on divorce”. But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.
29. It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (supra) (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (supra) (Krishna Iyer J., one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under Section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.
30. Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgment. There is a statement of the Report, in the context of Section 127(3)(b), that “payment of Mahr money, as a customary discharge, is within the cognizance of that provision”. We have taken the view that Mahr, not being payable, on divorce, does not fall within the meaning of that provision.
31. It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves. The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorcee should maintain herself. The facile answer of the Board is that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her. This is a most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women’s Association for the uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the wife.
32. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.
33. Dr. Tahir Mahmood in his book ‘Muslim Personal Law’ (1977 Edition, pages 200-202), has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says .:
“In pursuance of the goal of secularism, the State must stop administering religion-based personal laws”. He wants the lead to come from the majority community but, we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community:
“Instead of wasting their energies in exerting theological and political pressure in order to secure an “immunity” for their traditional personal law from the State’s legislative jurisdiction, the Muslims will do well to begin exploring and demonstrating how the true Islamic laws,, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.”
At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies, New Delhi, he also made an appeal to the Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146).
34. Before we conclude, we would like to draw attention to the Report of the Commission Marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955. The answer of the Commission to Question No. 5 (page 1215 of the Report) is that
“a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children.” The Report concludes thus:
“In the words of Allama Iqbal, “the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution – a question which will require great intellectual effort, and is sure to be answered in the affirmative.”
35. For these reasons, we dismiss the appeal and confirm the judgment of the High, Court. The appellant will pay the costs of the appeal, to respondent 1, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under Section, 127(1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.
Keywords: Preliminary Inquiry in Maintenance Case
|AIR 1960 SC 882 : (1960) 3 SCR 431 : (1960) CriLJ SC 1246
(SUPREME COURT OF INDIA)
|Nand Lal Misra||Appellant|
|Kanhaiya Lal Misra||Respondent|
(Before : K. Subba Rao And J. C. Shah, JJ.)
Criminal Appeal No. 64 of 1958,
Decided on : 01-04-1960.
The procedure does not contemplate a Preliminary enquiry into paternity of child—Summons can be issued by Magistrate without any preliminary inquiry.
The basis of an application for maintenane of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the Magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub section 6 of Section 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. Under that sub section, all evidence under that chapter shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases. The word “all’ with which the sub section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader. It is conceded that Sections 200 to 203 of the Code do not apply to an application under Section 488 of the Code. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this position; for, if a suit is filed in a Civil Court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry.
It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence is taken against him, it lightens the burden of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may contest only the quantum of maintenance. We, therefore, hold that Section 488 of the Code does not contemplate a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice.
Counsel for the Parties:
Mr. N. C. Sen, Advocate, for Appellant
Mr. C. K. Daphtary, Solicitor-General of India and Purshottam Tricumdas, Senior Advocate (M/s. G. C. Mathur and C. P. Lal, Advocates, with them), for Respondent.
Subba Rao, J—This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under S. 438 of the Code of Criminal Procedure.
2. The appellant is a minor and lives under the guardianship of his mother, Smt. Gita Basu. On September 14, 1955, the appellant, through his mother, filed an application under S. 488 of the Code of Criminal Procedure (hereinafter referred to as the Code) in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, Advocate-General, Uttar Pradesh, Allahabad, for maintenance alleging that he is his putative father. Without giving notice to the respondent, the Magistrate posted the petition for evidence on September 20, 1955. On that date, the appellant’s guardian was examined and she was also cross-examined by the Magistrate at some length. After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under S. 202 of the Code and, for that purpose, he adjourned the petition for hearing to September 26, 1955, on which date on police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness. On September 27, 1955, the appellant filed a petition before the Magistrate stating that S. 200 of the Code had no application and that no enquiry need be made before issuing notice to the respondent. If, however, the Court treated the application as a complaint, the applicant asked for time to adduce further evidence in support of the application for maintenance. On that petition the learned Magistrate made the endorsement “lead the further evidence, please, if you like”. On October 6, 1955, the guardian of the appellant examined one more witness. On that date, the learned Magistrate made in the proceeding sheet the endorsement “no further evidence to be led at this stage.”
3. On October 10, 1955, the learned Magistrate made an order dismissing the application. He agreed with the petitioner’s contention that Ss. 200 to 203 of the Code did not apply to the application for maintenance; but he expressed the view that he should be satisfied that the petitioner had a prima facie case before he issued notice to the respondent. He then proceeded to consider the evidence and came to the conclusion that he was not satisfied that the respondent was the father of Nand Lal, and on that finding he refused to issue notice of the application to the respondent, and dismissed the application. The appellant filed a revision against that order of the learned Magistrate to the Sessions Judge Allahabad. The learned Sessions Judge, after considering the materials placed before the Magistrate, came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent under sub-s. (6) of S. 488 of the Code. He submitted the record to the High Court of Judicature at Allahabad recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law. The reference came up for hearing before Chowdhry, J., who, on the analogy of other sections of the Code held that the Magistrate in holding a preliminary enquiry acted in consonance with the general scheme of the Code and that, therefore, the order dismissing the application was not vitiated by any illegality or irregularity. He observed that it was conceded by the appellant before the Magistrate that the Magistrate could hold a preliminary enquiry and that, therefore, it was not open to the appellant to question its propriety. He also found that every opportunity was given to the guardian of the appellant to lead such evidence as he desired to produce and that, therefore, the appellant was not prejudiced by the alleged irregularity. On the maintainability of the reference, he held that the finding arrived at by the learned Magistrate was one of fact on the materials placed on the record and, as the Magistrate did not act perversely or in contravention of some well-established principles of law or procedure, the learned Sessions Judge should not have made the reference. The learned Judge finally pointed out that the proceedings were only summary in nature and that they did not deprive the appellant of his right to seek remedy, if any, in a civil court. In the result, the reference was rejected. The appellant by this appeal questions the correctness of that order.
4. Learned counsel for the appellant contends that the learned Magistrate followed a procedure not contemplated by the Code of Criminal Procedure and that in any event he conducted the enquiry in a manner which, to say the least, was unjust to the appellant.
5. The learned Solicitor-General, appearing for the respondent, supported the procedure adopted by the Magistrate and also the finding arrived at by him. He further contended that the appellant in the High Court as well as before the Magistrate conceded that the Magistrate had power to make a preliminary enquiry and that, therefore, he should not be allowed to question, the validity of the enquiry for the first time before this Court.
6. Ordinarily, in a case like this we should have been disinclined to interfere with the order of the High Court in an appeal filed under Art. 136 of the Constitution. But, this appeal discloses exceptional circumstances which compel us to depart from the ordinary practice.
7. It is not correct to state that the appellant had conceded throughout that a magistrate can make a preliminary enquiry under S. 488 of the Code before issuing notice to the respondent. Indeed the judgment of the Magistrate discloses that on behalf of the appellant certain decisions were cited in support of the contention that an application under S. 488 of the Code does not come under the purview of Ss. 200 to 203 of the Code. Section 200 of the Code provides for the examination of the complainant and the witnesses present in court. Section 202 enables him to make a further enquiry before issuing notice. Section 203 empowers him to dismiss a petition, if in his judgment no sufficient ground for proceeding with the case has been made out. The contention raised by the appellant, therefore, can only mean that the Magistrate cannot make a preliminary enquiry in the manner contemplated by the said provisions. Indeed, the Magistrate accepted this contention; but he observed:”But, as the learned counsel submit, I have to be satisfied that a notice under S. 488 Cr. P. C. should issue to the opposite party before I issue it and that, therefore, all that has come on record as yet is admissible for consideration of the question whether the notice should be issued or not”. This observation did not record any concession on the part of the appellant that the Magistrate could make a preliminary enquiry. In the context of the first submission, the second submission could only mean that the Magistrate could satisfy himself before issuing notice, whether the application was ex facie not maintainable or frivolous. In the revision petition filed before the Sessions Judge, the appellant raised the following ground:
“Because the court below while correctly holding that application made by the applicant under S. 488 Cr. P. C. did not attract the operation of the provisions made in Ss. 200 to 203 of the said Code and further that in pursuance of the mandatory provision in S. 488 (6) all evidence under Chapter XXXVI of the said Code shall be taken in the presence of the opposite party, has erred in law in directing evidence to be led under S. 200 Cr. P. C. and in considering the said evidence has usurped a jurisdiction not vested in it by law.”
The judgment of the learned Sessions Judge also disclosed that this point was raised before him. Though the learned Sessions Judge accepted the contention that Ss. 200 to 203 of the Code had no application, he remarked that “in this case the learned Magistrate thought it fit to satisfy himself if this was a case fit enough in which he should issue a notice.” Before the learned Judge of the High Court, it does not appear that any concession, even in a limited form, was made. Chowdhry, J., observes in his judgment:
“……..it appears that it was conceded by the learned counsel appearing for the applicant that the Magistrate had to satisfy himself in limine that a notice of the application in question should issue to the opposite party.”
This observation is only a reproduction of what the Magistrate stated in his judgment. Learned counsel, who appeared for the appellant in the High Court, does not appear to have made any fresh concession before the High Court and we do not think that the learned Judge was justified in drawing from the observations of the Magistrate that it was conceded on behalf of the applicant that it would be a proper procedure for the court to make such a preliminary enquiry in order to satisfy itself that notice should issue to the opposite party. As we have pointed out, the main contention of the petitioner throughout was that the Magistrate had no power to make a preliminary enquiry and the concession, even if it had been made, can only mean, in the context, that the Magistrate could satisfy himself whether, on the allegations in the petition, it was a frivolous petition.
8. The first question is whether S. 488 of the code contemplates any preliminary enquiry on the part of a magistrate before he could issue notice to the opposite party. The answer to this question turns upon the construction of the provisions of S. 488 of the Code. Chapter XXXVI of the Code contains three provisions. The heading of the Chapter is “Of The Maintenance of Wives And Children”. The relevant provisions read:
Section 488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:
Section 489 provides for the alteration in the allowance under S. 488, and S. 490 prescribes the procedure for the enforcement of the order of maintenance. The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife of claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate. Under S. 488, so far as it is relevant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain it. It is suggested that unless the child is admitted by the putative father to be his illegitimate child, the magistrate has no power to make an order for payment of maintenance. This argument, if accepted, would make the entire section nugatory. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub-section 6 of Section 488 is mandatory in form and in clear terms it prescribed the procedure to be followed by the Magistrate. Under that sub-section, all evidence under the chapter shall be taken in the presence of the husband or the father, as the case may be, or, when has personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word “all” with which the sub-section opens emphasizes that fact the no evidence shall be taken in the absence of the father or his pleader. It is conceded that Ss. 200 to 203 of the Code do not apply to an application under S. 488 of the Code. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary enquiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this position; for, if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry. We are not impressed by the argument that the sub-section itself is intended only for the benefit of the respondent. It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to the present when evidence is taken against him, it lightens the burden of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may contest only the quantum of maintenance. We, therefore, hold that S. 488 of the Code does not contemplate a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader, indicating thereby that one enquiry only should be held after notice.
9. The more objectionable feature in this case is that the Magistrate followed a procedure, which is, to say the least, unjust to the appellant. The appellant’s guardian was examined by the Magistrate, and she related the circumstances that led to her illicit intimacy with the respondent; she has stated in what circumstance the intimacy commenced. She filed copies of the notices sent by her, through an advocate, by registered post to the respondent demanding maintenance and stated that she received the acknowledgments but the respondent did not think it fit to reply. She filed a photograph wherein she and the respondent were seated on chairs with the appellant standing between them. A servant was also examined, who deposed that she had seen the respondent visiting the appellant’s mother at odd hours. This evidence, ordinarily, would be sufficient, even if the procedure followed by the Magistrate was permissible, to give notice to the respondent. But the learned Magistrate cross-examined the mother of the appellant at great length. The cross-examination discloses that the Magistrate had either uncommon powers of intuition or extraneous sources of information, for he elicited so many minute details of her life that only an advocate well instructed in his brief could possibly do. The singularity of the method adopted by the Magistrate does not end there. The learned Magistrate, though he subsequently held that he could not make a preliminary enquiry as contemplated by Ss. 200 to 203 of the Code, examined the mother of the appellant at great length and then gave her opportunity under S. 202 of the Code of procedure other evidence. After examining two more witnesses, the learned Magistrate ordered that “no further evidence to be led at this stage”. This order indicates that the learned Magistrate prevented the appellant at that stage to examine other witnesses. Even if a liberal meaning was given to the terms of the order, it would mean that at that time the Magistrate was inclined to give notice to the respondent but changed his mind subsequently. Thereafter, the Magistrate considered the evidence and delivered a judgment holding that the paternity of the appellant had not been established. While there was uncontradicted evidence sufficient for the Magistrate to give notice to the respondent, he recorded a finding against the appellant before the entire evidence was placed before him. While accepting the contention of the appellant that the procedure under Ss. 200 to 203 of the Code did not apply, in fact he followed that procedure and converted the preliminary enquiry into a trial for the determination of the question raised. Indeed, he took upon himself the role of a cross-examining counsel engaged by the respondent. The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Procedure, and to make an unjudicial approach to the case of the appellant. In the courts of law, there cannot be a double-standard – one for the highly placed and another for the rest:the Magistrate has no concern with personalities who are parties to the case before him but only with its merits.
10. After carefully going through the entire record, we are satisfied that the appellant was not given full opportunity to establish his case in the manner prescribed by law. We should not be understood to have expressed any opinion on the merits of the case; they fall to be considered on the entire evidence which may be produced by the appellant in the presence of the respondent or his pleader, as the case may be.
11. In the result, the order of the High Court is set aside and the reference made by the Sessions Judge is accepted and the application is remanded to the Court of the Magistrate, First Class, Allahabad, for disposal according to law.
But under S. 10(l)(b), harm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty.
Irretrievable breakdown of the marriage is not a ground by itself
AIR 1994 SC 710 : (1993) 3 Suppl. SCR 796 : (1994) 1 SCC 337 : JT 1993 (6) SC 428 : (1993) 4 SCALE 488
(SUPREME COURT OF INDIA)
(Before: Kuldip Singh And B. P. Jeevan Reddy, JJ.)
I. A. No. 1 of 1993, in Civil Appeals No. 424 of 1987, Decided on: 19-11-1993.
Counsel for the Parties:
Mr. G. L. Sanghi, Sr. Advocate and Mr. Ashok Grover, Advocate with him, for Appellant.
Mr. Bawa Shiv Charan Singh, Sr. Advocate, Mrs. Kawaljit Kochhar and Mr. J. D. Jain, Advocates with him, for Respondent.
B. P. Jeevan Reddy J—This is an unusual case calling for an unusual solution. The husband sued for divorce on the ground that the wife is guilty of adulterous course of life. The wife not only denied the allegation -she attributed the allegation to lack of mental equilibrium of the husband. The husband then amended his petition; he alleged a new ground for divorce viz., mental cruelty. According to him, the allegations made in the written statement per se constitute cruelty which entitled him straightway to a divorce without going into the original allegation of adultery. He is also relying upon certain questions put to him in cross-examination by the counsel for the respondent and the said counsel’s explanatory statement made in that connection. We may elaborate.
2. The petitioner-applicant, Shri V. Bhagat is an Advocate practising in this Court and Delhi High Court. He is now aged about 55 years. The respondent-wife is working at present as the Vice-President of I.T.D.C.. a Public Sector Corporation. She is aged about 50 years. They were married in the year 1966. They have two grown-up children now – a son and a daughter. The son is a doctor while the daughter holds a degree in M.B.A. and is working with an American Company in California.
3. The respondent was working in a Television Company at the time of her marriage. After the birth of a child she left the job in August, 1967. The respondent started working again from the year, 1972 onwards. To start with she was employed in a Travel Agency. Somewhere around 1978-79, the petitioner began suspecting her of infidelity. According to him, when he questioned the respondent of her adulterous behaviour, she admitted the same and asked to be pardoned. The wife denies this, She says, she never made any such admission and that the allegation is a totally false one. From 1980 onwards the petitioner was making attempts to obtain a divorce by consent. The respondent was not willing. On May 28, 1985, he instituted the present petition for divorce in the District Court, Delhi. The divorce petition runs into more than 160 paragraphs. The main ground is adultery. According to husband, the wife is an incorrigible adulteress. The respondent filed the written statement denying the allegations. The written statement, if anything, is even lengthier and more voluminous than the divorce petition. She has denied the allegation in toto. According to her, the husband is like Othello a pathologically suspicious character.
4. On February 5, 1986, the petition for divorce was withdrawn and transferred to the High Court of Delhi. It was assigned to Justice H. C. Goel. The learned Judge struck out a large number of paragraphs from the petition for divorce. Against the order of the learned Judge, the petitioner approached this Court by way of an appeal which was allowed on February 19, 1987. On that occasion, this Court directed the learned Chief Justice of the Delhi High Court to nominate a learned Judge to take up the divorce petition and dispose it of as expeditiously as possible. It was directed that the matter may be heard on day-to-day basis as far as possible.
5. In May 1987, the petitioner filed an interlocutory application before the High Court for passing a decree of divorce on the basis of the averments made by the respondent in her written statement/counter. According to him, those allegations amounted to cruelty against him and furnished adequate grounds for passing a decree of divorce. He then filed an application in this Court to withdraw the said interlocutory application to the file of this Court and grant the relief prayed for by him. This Court refused to do so. The interlocutory application filed by him was dismissed by the High Court. Thereafter, he amended his petition for divorce and again filed another interlocutory application for granting divorce on the basis of the averments made by the respondent in her written statement. This application too was dismissed by the High Court. It is stated that the special Leave Petition filed against the same was also dismissed by this Court. The trial is in progress now. Petitioner’s evidence is over and the wife’s statement is being recorded. At this stage, the present application -I. A. No. 1 of 1993 – is filed in Civil Appeal No. 424 of 1987 (which was disposed of on February 19, 1987). The prayer in the application is to give appropriate directions for speedy disposal of the divorce petition. In this application the petitioner has made the following averments:the petition for divorce is pending over the last 8 years. The respondent has indulged in dilatory tactics to protract the litigation. The respondent spent more than 11 months in cross-examining the petitioner alone (February 19, 1992 to January 1993). While the examination-in-chief is mere 30 pages, the cross-examination runs into more than 150 pages – most of it irrelevant and unnecessary. The Trial Judges are unable to stop the vexatious cross-examination by the counsel for the respondent. The repeated directions from this Court to dispose of the divorce petition as expeditiously as possible and on day-to-day basis did not have the desired effect. As many as five learned Judges of the High Court have tried this matter, but still it is at the stage of recording of evidence. The evidence of the respondent-wife is yet to be completed. As a matter of fact, on May 1, 1991, this Court was constrained to observe “we are inclined to agree with the counsel for the petitioner that the directions have not been followed and the matter has unnecessarily been protracting. We request the learned Chief Justice of the High Court to personally look into the matter and allot the case to a learned Judge on the appellate side who can deal with the matter day-to-day and have it disposed of within a reasonable time. say, within three to four months from today.” The petitioner complains that even though a period of more than 28 months has elapsed since the said order. the matter is still at the stage of trial.
6. In her counter filed to this application, the respondent stated that she is in no way responsible for the delay in disposal of the divorce petition and that in fact the petitioner himself is responsible for the delay. She submitted that almost every order passed by the Delhi High Court was challenged by him by way of Special Leave Petition in this Court and that he has also been making allegations against the learned Judges trying the petition as and when they passed orders unfavourable to him.
7. In this application (I. A. No. 1 of 1993). this Court directed on May 3. 1993. both the parties to be present in person in the Court with a view to explore the possibility of a settlement. On the next date, i.e., May 7, 1993. the respondent was not present. The matter was adjourned to July 19, 1993. On July 19. 1993. the parties were heard for some, time and the Court suggested to the parties to find a via-media to settle the matter. The parties sought for a short adjournment. The matter was adjourned to August 6, 1993. On 6th August. the matter was again adjourned to 16th August on which date we were told that the parties could not arrive at any settlement, whereupon the arguments of the counsel for the parties were heard. In the background of the orders of this Court made in this I.A.. referred to above, learned counsel for the petitioner reiterated his plea to grant a divorce on the ground of cruelty evidenced by the averments in her counter and the questions put to him in the cross-examination. Counsel submitted that the marriage between the parties has broken down irretrievably. Having regard to the nature of allegations and counter allegations made by the parties against each other, there is hardly any room for their coming together. The petitioner has been trying to obtain divorce right from the year 1980. For five years he tried to get it by consent, failing which he approached the Court. Eight years have passed by and in spite of the repeated orders of this Court, even the trial is not yet over. The petitioner is now 55 years old. A good part of the life of both the parties has been spent in rancour and litigation. De hors the allegations of adultery originally made in the petition for divorce, the petitioner is entitled to divorce on the basis of the additional ground put in by way of amendment viz,, cruelty -mental cruelty by wife. The averments made in her counter and the questions put by her counsel in the cross-examination of the petitioner do constitute clear acts of cruelty. In view of the said averments/questions, no further material is necessary to establish the said additional ground. In her written statement, the respondent has alleged that the petitioner is ‘suffering from mental hallucination,, that his is a “morbid mind for which he needs expert psychiatric treatment” and further that “the petitioner is suffering from paranoid disorder. He needs expert psychological treatment He is incoherent in his thinking The petitioner is a mental patient. The petitioner needs treatment by a psychiatrist to whom he was directed by his own sister…… He is a patient and needs treatment and restoration of normal mental health The petitioner needs psychological treatment to make him act a normal person and so on and so forth. In the cross-examination of the petitioner, the Senior Advocate appearing for the respondent-wife put several questions suggesting that the petitioner and the several members of his family including his grandfather are lunatics and that a streak of insanity is running in the entire family. When he protested against the said questions. the learned Senior Advocate made the following statement in the court -”all of your (petitioner’s) family including your grandfather and others are lunatics with streaks of insanity running in the entire family:this is the respondent’s case (supra) and that is why these questions have been asked.” The said questions were put and the said statement was made by her advocate at the instructions of the respondent. Notwithstanding the dismissal of a similar application by the Delhi High Court and the dismissal of a special leave petition there against by this Court, this is a fit and proper case – and this is the most appropriate stage at which – the petitioner should be granted divorce on the ground of cruelty. The situation has become intolerable, says the counsel.
8. The learned counsel for the respondent, on the other hand, reiterated his submission that the respondent was not responsible for the delay; that in fact the petitioner has himself been delaying the proceedings and that the questions put to him in cross-examination and the defence taken in the written statement are merely the reactions of the wife to unjustified and unwarranted aspersions cast upon her character. The respondent has only been trying to explain that the several serious allegations levelled against her are the products of a sick mind and are mere figments of his imagination. She submitted that her children and even the sisters and mother of the petitioner are siding her in this dispute and that the petitioner alone alienated from his entire family is persecuting her. It is submitted that she is only trying to defend her honour, self-respect and standing in society. It is pointed out that she is holding a fairly high office in a Public Sector Corporation and it is her duty to herself, her children and to the families of her husband and herself to disprove the unfounded allegations levelled against her. She has submitted that she is not agreeable to divorce on any ground whatsoever and that she is always prepared to live with the petitioner. It is only the petitioner who is keeping himself away from her company and has confined himself to one room, whereas she, her children and her mother-in-law live in the house as usual.
9. It is said that marriages are made in Heaven, that may be so, but this one has turned into a Hell for sure. The allegations and the counter-allegations are indicative of the intense hatred and rancour between the parties. Any reconciliation is out of question. The question before us is whether in all the facts and circumstances of the case, what should we do? Three courses are open. One is to look to the prayer in the application and reject it in view of two earlier directions to the same effect. Two, make another request (third one) to the High Court to dispose of the matter expeditiously and three, to explore whether any solution can be found to the predicament in which the parties are now placed. So far as the first two alternatives are concerned, it may be noted, there have been two such directions by this Court earlier, one in the year l987 and the other in the year 1991. The advisability of a third such direction -request – is open to question. If two such requests/directions had no effect, it is doubtful that a third direction would yield any better result. It may be an exercise in futility besides being inadvisable. In the facts and circumstances of this case. we are inclined to explore the third alternative.
10. That this is a rather unusual case can hardly be disputed. The divorce petition has been pending for more than 8 years. With a view to expedite its disposal it was transferred from the District Court to the High Court. This Court repeatedly requested (in 1987 and 1991) the High Court to try the matter on a day-to-day basis and dispose it of expeditiously. The petition is still at the stage of trial. It is not possible for us to apportion the blame. Each side attributes it to the other. Five learned Judges of the High Court have tried their hand at the case, but it still remains at the stage of trial. The cross-examination of the petitioner alone took one full year. The cross-examination of the respondent is yet to begin. Having regard to the number of allegations made by the petitioner in his divorce petition and the material relied upon by him, it may safely be presumed that the cross-examination of the Respondent would take as much time as the cross-examination of the petitioner, if not more. Each party, it appears, is out to punish the other for what the other is supposed to have said or done. This appears to be the single thought ruling their lives today. A good part of the life of both the parties is consumed in this litigation and yet the end is not in sight. The assertion of the wife that she wants to live with the husband even now, appears to be but a mere assertion. After all the allegations made against her in the petition and the allegations levelled by her against the petitioner, living together is out of question. Rapprochement is not in the realm of possibility. For the parties to come together, they must be superhumans, which they are not. The parties have crossed the point of no retun long ago. The nature of the allegations levelled against each other show the intense hatred and animosity each bears towards the other. The marriage is over except in name. The desirability of allowing the continuation of the divorce proceedings in the particular facts and circumstances of this case is open to grave doubt. The matter may take more than a year – at the minimum – to conclude in the High Court and then there is the right of appeal to the losing party. Both the parties are well settled. The children are grown-up and are on their own. It is significant to note that this is not a case where allegations are made only by one party against the other; both have levelled serious allegations against the other. The husband calls the wife an adulteress and the wife calls the husband a lunatic.
11. The question, however, is whether the allegations made by the respondent-wife do constitute mental cruelty. The allegations in her written statement and her counsels explanatory statement in Court have already been set out hereinabove. The respondents has asserted in her written statement that she “has every right to make correct statement of facts to defend herself against the wanton, imaginary and irresponsible allegations”.
12. Clause (ia) of S. 13 specifies cruelty as one of the grounds of divorce. In so far as relevant section 13 reads:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(ia) has after the solemnisation of the marriage treated the petitioner with cruelty.”
13. Cruelty contemplated by the sub-clause is both physical and mental. We are concerned herein with the latter. It is not possible to define ‘mental cruelty’ exhaustively. As observed by Lord Reid in Gollins v. Gollins, 1964 AC 644:
“No one has ever attempted to give a comprehensive definition of cruelty and I do not intend/try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirements that the party seeking relief must show actual or probable injury to life, limb or health. It is easy to see that the origin of this requirement is the decision in the well known case of Russel v. Russel (1897 AC 395).”
To the same effect are the observations of Lord Pearce:
“It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a resonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it……..
I agree with the Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it……….
The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life. their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.”
14. The reference to “injury” to life, limb or health” in the above passages must be understood in the context of the requirements of the divorce law then obtaining in the United Kingdom.
15. The change of law brought about by the Hindu Marriage Law’s (Amendment) Act, 1976 deserves notice. Prior to the said Amendment Act, cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was a ground only for claiming judicial separation under S. 10. By the said Amendment Act, cruelty was made a ground for divorce as well evidently in recognition of the changing mores of the Society. While doing so, it is significant, the words “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party,” qualifying the expression “cruelty” in S. 10 (l)(b), were omitted by Parliament. It is, therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension a reasonable apprehension -in his/ her mind that it will be harmful or injurious for him/her to live with the other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in S. l0( l)(b) has been explained in this Court’s decision in Dastane v. Dastane, AIR 1975 SC 1534. Chandrachud, J., speaking for the Bench, held that where an allegation of cruelty is made, the inquiry has to be “whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.” The learned Judge held further “it is not necessary, as under the English law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other . But under S. 10(l)(b), harm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.” This requirement is no longer present in S. 13(l)(ia).
16. If so, the question arises what kind of cruel treatment does clause (ia) contemplate? In particular, what is the kind of mental cruelty that is required to be established’?
While answering these questions, it must be kept in mind that the cruelty mentioned in clause (ia) is a ground now for divorce as well as for judicial separation u/S. 10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after the 1976 (Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by S. 13(ia).
17. Mental cruelty in S. 13(l)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
18. At this stage, we may refer to a few decisions of this Court rendered u/S. 13(1) (i-a). In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105 , Justice K. Jagannatha Shetty, speaking for the Division Bench, held:
“Section 13(1 )(i-a) uses the words “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical. intentional or unintentional. If it is physical the Court will have no problem to determine it It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately’, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may. however, be cases where the conduct complained of itself is bad enough and per Se unlawful or illegal. Then the impact or the injuries effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular. we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, (1966)2 All ER 257, 259 “the categories of cruelty are not closed”. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”
19. It was a case where the wife was a postgraduate in Biological Sciences while the husband was a doctor. The wife moved the Court for divorce on the ground of cruelty. According to her, she had an amount of Rupees two lakhs in Fixed Deposit in a bank apart from a house property, that her mother-in-law used to make constant demands of money, and that the respondent-husband supported his mother therein. She did not report the same to her parents because she was afraid that if she informed her parents, something may be done to her. The respondent-husband himself admitted in a letter written to the wife that the demand for dowry by his parents was nothing wrong. On the above facts, it was held that the ground of cruelty was established and divorce was granted. The following further observations of Shetty, J. appear to us relevant:
“Section 13 (l)(i-a) of the Hindu Marriage Act provides that the party has after solemnisation of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the act of cruelty is established, the intention to commit suicide cruelty cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Section 13( l)(i-a) of the Hindu Marriage Act. The context and the set up in which the word cruelty has been used in the section seems to us. that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm. harass or hurt could he inferred by the nature of the conduct or brutal act complained of cruelty could be easily established But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.”
20. In Smt. Chanderkala Trivedi v. Dr. S. P. Trivedi. (1993 (3) SCALE 541) the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, R. M. Sahai, J., speaking for Division Bench, observed:
“Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”
21. It was argued on behalf of the husband that the wife has failed to establish the charge of adultery levelled against him and that the charge of adultery must be proved beyond reasonable doubt. Dealing with the argument, the learned Judge observed:
“But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to Division Bench to decide it again, which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties.
22. In the light of the principles enunciated hereinabove, we may now examine whether the allegations made by the wife in her written statement and the questions put by her counsel to the petitioner in cross-examination amount to mental cruelty with in the meaning of the said sub-clause? The relevant portions of the written statement have already been set out by us hereinbefore We have also set out in the said paragraph the explanatory statement made by the respondent’s counsel in Court in justification of the question put by him to the petitioner in his cross-examination. It is true that the said averments must be read in the context in which they were made. At the same time, it must be remembered that the wife was merely defending herself against what are, according to her, totally unfounded allegations and aspersions on her character. It was not necessary for her to go beyond that and allege that the petitioner is a mental patient, that lie is not a normal person, that he requires psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. It is not as if these words were uttered in a fit of anger or under an emotional stress. They were made in a formal pleading filed in the Court and the questions to that effect were put by her counsel, at her instructions, in the cross-examination. Even in her additional written statement she has asserted her right “to make correct statement of facts to defend herself against the wanton, imaginary and irresponsible allegations”. These are not the mere protestations of an injured wife; they are positive assertions of mental imbalance and streak of insanity in the mental build-up of the husband. The husband is an advocate practising in this Court as well as in Delhi High Court. The divorce petition is being tried in the Delhi High Court itself. Making such allegations in the pleadings and putting such questions to the husband while he is in the witness-box is bound to cause him intense mental pain and anguish besides affecting his career and professional prospects. It is not as if the respondent is seeking any relief on the basis of these assertions. The allegations against her may not be true; it may also be true that the petitioner is a highly suspicious character and that he assumes things against wife which are not well-founded. But on that ground, to say that the petitioner has lost his normal mental health, that he is a mental patient requiring expert psychological treatment and above all to brand him and all the members of his family including his grandfather as lunatics is going far beyond the reasonable limits of her defence. It is relevant to notice that the allegations of the wife in her written statement amount in effect to “psychopathic disorder or any other disorder” within the meaning of the Explanation to Clause (iii) of sub-section (1) of Section 13, though, she has not chosen to say that on that account she cannot reasonably be expected to live with the petitioner-husband nor has she chosen to claim any relief on that ground. Even so, allegations of ‘paranoid disorder’, ‘mental patient, needs psychological treatment to make him act a normal person’ etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of this case show that the respondent is deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically’ insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable-hell. for the petitioner as well. This type of callous attitude in the context of the facts of this case leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental-cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13 (l)(ia) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter.
23. Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interest of both the parties.
24. The petition for divorce H. M. Case No. 1 of 1986 pending in the Delhi High Court is withdrawn to the file of this Court and is allowed. The marriage between the parties is dissolved. In the circumstances, the allegations levelled by the petitioner against the wife are held ‘not proved’. The honour and character of the respondent-wife stands vindicated.
25. There shall be no order as to costs.
Keywords-Preponderance of probabilities-Second Appeal-Condonation of matrimonial offence-Sexual Life⇒
The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s acts of cruelty.
respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action.
The Hindu Marriage Act’, 25 of 1955
AIR 1975 SC 1534 : (1975) 3 SCR 967 : (1975) 2 SCC 326
(SUPREME COURT OF INDIA)
(Before : Y. V. Chandrachud, P. K. Goswami And N. L. Untwalia, JJ.)
Civil Appeal No. 2224 of 1970, Decided on : 19-03-1975.
Counsel for the Parties:
Mr. V. M. Tarkunde, Sr. Advocate (Mrs. S. Bhahdare, P. H. Parekh and Miss Manju Jaitley, Advocates of M /s. Bhandare Parekh and Co. with him), for Appellant
N. S. Desai, Sr. Advocate (Mr. S. B. Wad and Mrs. Jayashree Wad, Advocates with him), for Respondent.
Chandrachud, J—This is a matrimonial dispute arising out of a petition filed by the appellant for annulment of his marriage with the respondent or alternatively for divorce or for judicial separation. The annulment was sought on the ground of fraud, divorce on the ground of unsoundness of mind and judicial separation on the ground of cruelty.
2. The spouses possess high academic qualifications and each one claims a measure of social respectability and cultural sophistry. The evidence shows some traces of these. But of this there need be no doubt:the voluminous record which they have collectively built up in the case contains a fair reflection of their rancour and acrimony.
3. The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc. in Agriculture from the Poona University. He was sent by the Government of India to Australia in the Colombo Plan Scheme. He obtained his Doctorate in Irrigation Research from an Australian University and returned to India in April, 1955. He worked for about 3 years as an Agricultural Research Officer and in October, 1958 he left Poona to take charge of a new post as an Assistant Professor of Agronomy in the Post Graduate School, Pusa Institute, Delhi. At present he is said to be working on a foreign assignment. His father was a solicitor-cum-lawyer practising in Poona.
4. The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi. Her father was transferred to Delhi in 1949 as an Under Secretary in the Commerce Ministry of the Government of India and she came to Delhi along with the rest of the family. She passed her B.Sc. from the Delhi University in 1954 and spent a year in Japan where her father was attached to the Indian Embassy. After the rift in her marital relations, she obtained a Master’s Degree in Social Work. She has done field work in Marriage Conciliation and Juvenile Delinquency. She is at present working in the Commerce and Industry Ministry, Delhi.
5. In April,1956 her parents arranged her marriage with the appellant. But before finalising the proposal, her father – B. R. Abhyankar – wrote two letters to the appellant’s father saying in the first of these that the respondent “had a little misfortune before going to Japan in that she had a bad attack of sunstroke which affected her mental condition for sometime.” In the Second letter which followed at an interval of two days, “cerebral malaria” was mentioned as an additional reason of the mental affectation. The letters stated that after a course of treatment at the Yeravada Mental Hospital, she was cured:”you find her as she is today”. The respondent’s father asked the appellant’s father to discuss the matter if necessary, with the doctors of the Mental Hospital or with one Dr. P. L. Deshmukh a relative of the respondent’s mother. The letter was written avowedly in order that the appellant and his people “should not be in the dark about an important episode” in the life of the respondent, which “fortunately, had ended happily”.
6. Dr. Deshmukh confirmed what was stated in the letters and being content with his assurance, the appellant and his father made no enquiries with the Yervada Mental Hospital. The marriage was performed at Poona on May 13, 1956. The appellant was then 27 and the respondent 21 years of age.
7. They lived at Arbhavi in District Belgaum from June to October, 1956. On November 1, 1956 the appellant was transferred to Poona where the two lived together till 1958. During this period a girl named Shubha was born to them on March 11, 1957. The respondent delivered in Delhi where her parents lived and returned to Poona in June, 1957 after an absence, normal on such occasions, of about 5 months in October, 1958 the appellant took a job in the Pusa Institute of Delhi, On March 21, 1959 the Second daughter, Vibha, was born. The respondent delivered at Poona where the appellant’s parents lived and returned to Delhi in August, 1959. Her parents were living at this time in Djakarta Indonesia.
8. In January, 1961, the respondent went to Poona to attend the marriage of the appellant’s brother, a doctor by profession, who has been given in adoption in the Lohokare family. A fortnight after the marriage, on February 27, 1961 the appellant who had also gone to Poona for the marriage got the respondent examined by Dr. Seth, a Psychiatrist in charge of the Yeravada Mental Hospital. Dr. Seth probably wanted adequate data to make his diagnosis and suggested that he would like to have a few sittings exclusively with the respondent. For reasons good or bad, the respondent was averse to submit herself to any such scrutiny. Either she herself or both she and the appellant decided that she should stay for some time with a relative of hers, Mrs. Gokhale. On the evening of the 27th, she packed her tit-bits and the appellant reached her to Mrs. Gokhale’s house. There was no consultation thereafter with Dr. Seth. According to the appellant, she had promised to see Dr. Seth but she denies that she made any such promise. She believed that the appellant was building up a case that she was of unsound mind and she was being lured to walk into that trap. February 27, 1961 was the last that they lived together. But on the day of parting she was three months in the family way. The third child, again a girl, named Pratibha was born on August 19, 1961 when her parents were in the midst of a marital crisis.
9. Things had by then come to an impossible pass. And close relatives instead of offering wise counsel were fanning the fire of discord that was devouring the marriage. A gentleman called Gadre whose letter-head shows an “M.A. (Phil.) M.A. (Eco.) LL.B.”, is a maternal uncle of the respondent. On March 2, 1961 he had written to the appellant’s father a pseudonymous letter, now proved to be his, full of malice and sadism. He wrote:
“I on my part consider myself to be the father of ‘Brahmadev’. ……….This is only the beginning. From the spark of your foolish and half-backed egoism, a big conflagration of family quarrels will break out and all will perish therein. This image of the mental agony suffered by all your kith and kin gives me extreme happiness, …………..you worthless person, who cherishes a desire to spit on my face, now behold that all the world is going to spit on your old cheeks. So why should I loose the opportunity of giving you a few severe slaps on your cheeks and of fisting your ear. It is my earnest desire that the father-in-law should beat your son with foot -ware in a public place.”
10. On March 11, 1961 the appellant returned to Delhi all alone. Two days later the respondent followed him but she went straight to her parents’ house in Delhi. On the 15th, the appellant wrote a letter to the Police asking for protection as he feared danger to his life from the respondent’s parents and relatives. On the 19th, the respondent saw the appellant but that only gave to the parties one more chance to give vent to mutual dislike and distrust. After a brief meeting, she left the broken home for good. On the 20th, the appellant once again wrote to the Police renewing his request for protection.
11. On March 23, 1961 the respondent wrote to the appellant complaining against his conduct and asking for money for the maintenance of herself and the daughters. On May 19, 1961 the respondent wrote a letter to the Secretary, Ministry of Food and Agriculture, saying that the appellant had deserted her, that he had treated her with extreme cruelty and asking that the Government should make separate provision for her maintenance. On March 25, her statement was recorded by an Assistant Superintendent of Police, in which she alleged desertion and ill-treatment by the appellant. Further statements were recorded by the Police and the Food Ministry also followed up respondent’s letter of May 19 but ultimately nothing came out of these complaints and cross-complaints.
12. As stated earlier, the third daughter, Pratibha, was born on August 19, 1961. On November 3, 1961 the appellant wrote to respondent’s father complaining of respondent’s conduct and expressing regret that not even a proper invitation was issued to him when the naming ceremony of the child was performed. On December 15, 1961 the appellant wrote to respondent’s father stating that he had decided to go to the Court for seeking separation from the respondent. The proceedings out of which this appeal arises were instituted on February 19, 1962.
13. The parties are Hindus but we do not propose, as is commonly done and as has been done in this case, to describe the respondent as a “Hindu wife” in contrast to non-Hindu wives as if women professing this or that particular religion are exclusively privileged in the matter of good sense, loyalty and conjugal kindness. Nor shall we refer to the appellant as a “Hindu husband” as if that species unfailingly projects the image of tyrant husbands. We propose to consider the evidence on its merits, remembering of course the peculiar habits, ideas, susceptibilities and expectations of persons belonging to the strata of society to which these two belong. All circumstances which constitute the occasion or setting for the conduct complained of have relevance but we think that no assumption can be made that respondent is the oppressed and appellant the oppressor. The -evidence in any case ought to bear a secular examination.
14. The appellant asked for annulment of his marriage by a decree of nullity under Section 12 (1) (c) of ‘The Hindu Marriage Act’, 25 of 1955 (“The Act”) on the ground that his consent to the marriage was obtained by fraud. Alternatively, he asked for divorce under Section 13 (1) (iii) on the ground that the respondent was incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. Alternatively, the appellant asked for judicial separation under Section 10 (1) (b) on the ground that the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it would be harmful or injurious for him to live with her.
15. The appellant alleged that prior to the marriage, the respondent was treated in the Yeravada Mental Hospital for Schizophrenia but her father fraudulently represented that she was treated for sunstroke and cerebral malaria. The trial court rejected this contention. It also rejected the contention that the respondent was of unsound mind. It, however, held that the respondent was guilty of cruelty and on that ground it passed a decree for judicial separation.
16. Both sides went in appeal to the District Court which dismissed the appellant’s appeal and allowed the respondent’s, with the result that the petition filed by the appellant stood wholly dismissed.
17. The appellant then filed Second Appeal No. 480 of 1968 in the Bombay High Court. A learned single Judge of that court dismissed that appeal by a judgment dated February 24, 1969. This Court granted to the appellant special leave to appeal, limited to the question of judicial separation on the ground of cruelty.
18. We are thus not concerned with the question whether the appellant’s consent to the marriage was obtained by fraud or whether the respondent had been of unsound mind for the requisite period preceding the presentation of the petition. The decision of the High Court on those questions must be treated as final and cannot be re-opened.
19. In this appeal by special leave, against the judgment rendered by the High Court in Second appeal, we would not have normally permitted the parties to take us through the evidence in the case. Sitting in Second Appeal, it was not open to the High Court itself to reappreciate evidence. Section 100 of the Code of Civil Procedure restricts the jurisdiction of the High Court in Second appeal to questions of law or to substantial errors or defects in the procedure which may possibly have produced error or defect in the decision of the case upon the merits. But the High Court came to the conclusion that both the courts below had “failed to apply the correct principles of law in determining the issue of cruelty.” Accordingly, the High Court proceeded to consider the evidence for itself and came to the conclusion independently that the appellant had failed to establish that the respondent had treated him with cruelty. A careful consideration of the evidence by the High Court ought to be enough assurance that the finding of fact is correct and it is not customary for this Court in appeals under Article 136 of the Constitution to go into minute details of evidence and weigh them one against the other, as if for the first time. Disconcertingly, this normal, process is beset with practical difficulties.
20. In judging of the conduct of the respondent, the High Court assumed that the words of abuse or insult used by the respondent. “could not have been addressed in vacuum. Every abuse, insult, remark or retort must have been probably in exchange for remarks and rebukes from the husband………….. a court is bound to consider the probabilities and infer, as I have done, that they must have been in the context of the abuses, insults, rebukes and remarks made by the husband and without evidence on the record with respect to the conduct of the husband in response to which the wife behaved in a particular way on each occasion, it is difficult, if not impossible to draw inferences against the wife.”
21. We find this approach difficult to accept. Under Section 103 of the Code of Civil Procedure, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate court or which has been wrongly determined by such court by reason of any illegality omission, error or defect such as is referred to in sub-section (1) of S. 100. But, if the High Court takes upon itself the duty, to determine an issue of fact its power to appreciate evidence would be subject to the same restraining conditions to which the power of any court of facts is ordinarily subject. The limits of that power are not wider for the reason that the evidence is being appreciated by the High Court and not by the District Court. While appreciating evidence, inferences may and have to be drawn but courts of facts have to remind themselves of the line that divides an inference from guesswork. If it is proved as the High Court thought it was, that the respondent had uttered words of abuse and as the High Court was entitled to infer that she had acted in retaliation, provided of course there was evidence, direct or circumstantial to justify such an inference. But the High Court itself felt that there was no evidence on the record with regard to the conduct of the husband in response to which the wife could be said to have behaved in the particular manner. The High Court reacted to this situation by saying that since there was no evidence regarding the conduct of the husband, “it is difficult, if not impossible, to draw inferences against the wife.” If there was no evidence that the husband had provoked the wife’s utterances, no inference could be drawn against the husband. There was no question of drawing any inferences against the wife because, according to the High Court, it was established on the evidence that she had uttered the particular words of abuse and insult.
22. The approach of the High Court is thus erroneous and its findings are vitiated. We would have normally remanded the matter to the High Court for a fresh consideration of the evidence but this proceeding has been pending for 13 years and we thought that rather than delay the decision any further, we should undertake for ourselves the task which the High Court thought it should undertake under Section 103 of the Code. That makes it necessary to consider the evidence in the case.
23. But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First, as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10 (1) (b) of the Act. But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order to judge whether the burden has been discharged?
24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this of process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note:”the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue” Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at page No. 210; or as said by Lord Denning, “the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. Blyth v. Blyth, 1966-1 All ER 524 at page No. 536.” But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.
25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.
26. Neither Section 10 of the Act which enumerates the grounds on which a petition for judicial separation may be presented nor Section 23 which governs the jurisdiction of the court to pass a decree in any proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt. Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned in Cls. (a) to (e) of the section. Considering that proceedings under the Act are essentially of a civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not “satisfied beyond a reasonable doubt.” Section 23 does not alter the standard of proof in civil cases.
27. The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose description of the respondent’s conduct in such cases as constituting a “matrimonial offence.” Acts of a spouse which are calculated to impair the integrity of a marital union have a social significance. To marry or not to marry and if so whom, may well be a private affair but the freedom to break a matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring spouse is treated not as a mere defaulter but as an offender. But this social philosophy, though it may have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.
28. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in (1966) 1 All ER 524 at page No. 536 the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned, “the case, like any civil case, may be proved by a preponderance of probability.” The High Court of Australia in (1948) 77 CLR 191 at page No. 210, Wright v. Wright, has also taken the view that “the civil and not the criminal standard of persuasion applies to matrimonial causes, including issues of adultery.” The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty “beyond reasonable doubt.” The High Court adds that “This must be in accordance with the law of evidence”, but we are not clear as to the implications of this observation.
29. Then, as regards the meaning of “Cruelty.” The High Court on this question begins with the decision in Moonshee Badloor Ruheem v. Shumsoonnissa Begum, (1867) 11 Moo Ind App 551 where the Privy Council observed.
“The Mohomedan law, on a question of what is legal cruelty between Man and Wife, would probably not differ materially from our own of which one of the most recent exposition is the following:- There must be actual violence of such a character as to endanger personal health or safety; or there must be a reasonable apprehension of it’.”
The High Court then refers to the decisions of some of the Indian courts to illustrate “The march of the Indian Courts with the English Courts’ and cites the following passage from D. Tolstoy’s. “The Law and Practice of Divorce and Matrimonial Causes” (Sixth Ed., p. 61):
“Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.” The High Court concludes that
“Having regard to these principles and the entire evidence in the case, in my judgment, I find that none of the acts complained of against the respondent can be considered to be so sufficiently grave and weighty as to be described as cruel according to the matrimonial law.”
30. An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be remembered that we have to interpret in this case a specific provision of a specific enactment, namely, Section, 10 (1) (b) of the Act. What constitutes cruelty must depend upon the terms of this statute which provides:
“10. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party:” The inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other.
31. The risk of relying on English decisions in this field may be shown by the learned Judge’s reference to a passage from Tolstoy (p. 63) in which the learned author, citing Horton v. Horton, 1940 P. 187 says:
“Spouses take each other for better or worse, and it is not enough to show that they find life together impossible, even if there results injury to health.”
If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But under Section 10 (1) (b), harm or injury to health reputation, the working-career or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.
32. One other matter which needs to be clarified is that though under Section 10 (1 ) (b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophies on the modalities of married life. Some one may want to keep late hours to finish the day’s work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion.
“The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.” American Jurisprudence, 2nd Edn., Vol. 24, p. 206. The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966:
“In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.”
33. We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them and as they have shaped their lives. The only rider is the interdict of Section 23 (1) (a) of the Act that the relief prayed for can be decreed only if the court is satisfied that the petitioner is not in any way taking advantage of his own wrong. Not otherwise.
34. We do not propose to spend time on the trifles of their married life. Numerous incidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills, discover many a cause for Complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas.
35. The spouses parted company on February 27, 1961, the appellant filed his petition on February 19, 1962 and the trial began in September, 1964. The 3 1/2 ‘years’ separation must naturally have created many more misunderstandings and further embitterment. In such an atmosphere, truth is a common casualty and therefore we consider it safer not to accept the bare word of the appellant either as to what the respondent said or did or as to the genesis of some of the mare serious incidents. The evidence of the respondent too would be open to the same criticism but the explanation of her words and deeds, particularly of what she put in cold print, must come from her oral word and that has to be examined with care.
36. The married life of these spouses is well-documented, almost incredibly documented. They have reduced to writing what crossed their minds and the letters which they have written to each other bear evidence of the pass to which the marriage had come. Some of these were habitually written as the first thing in the morning like a morning cup of tea while some were written in the silence of mid-night soon after the echo of harsh words had died down. To think that this young couple could indulge in such an orgy of furious letter-writing is to have to deal with a problem out of the ordinary for it is seldom that a husband and wife, while sharing a common home, adopt the written word as a means of expression or communication.
37. The bulk of the correspondence is by the wife who seems to have a flair for letter-writing. She writes in some style and as true as ‘The style is the man”, her letters furnish a clue to her personality. They are a queer mixture of confessions and opprobrious accusations. It is strange that almost every one connected with this couple has a penchant for writing. The wife, apart from her voluminous letters, has written an autobiographical account of her unfortunate experiences in the Yeravada Hospital, calling it “Mee Antaralat Tarangat Asta” (“while I was floating in space”). The husband’s father idealised the Shiva-Parvati relationship in a book called:”Gauriharachi Goad Kahani” (“The sweet story of Gaurihar”). Quite a few of the wife’s relatives including a younger sister of hers and of course her maternal uncle have set their pen to paper touching some aspect or the other of her married life. Perhaps, it was unfortunate that the promised millennium that did not come began with a letter. That was the letter of April 25, 1956 which the wife’s father wrote to the husband’s father while the marriage negotiations were in progress. The marriage took place on May13,1956.
38. Nothing deserving any serious notice happened till August, 1959 except that the letters Exs. 556, 238, 243 and 244 show that quite frequently the respondent used to get into fits of temper and say things for which she would express regret later. In the letter Ex. 556 dated November 23, 1956 she admits to having behaved “very badly”; in Ex. 238 dated March 26, 1959 she admits trial she was behaving like an “evil star” and had harassed the appellant; in Ex. 243 dated May 5, 1959 she says that she was aware of her “lack of sense” and asks for forgiveness for having insulted the appellant, his parents, his sister and her husband; and in Ex. 244 dated May 22, 1959 she entreats the appellant that he should not feel guilty for the insults hurled by her and his parents.
39. The period from August 1959 to March 1960 was quite critical and the correspondence covering that period shows that an innate lack of self-control had driven the respondent to inexorable conduct. By the letter Ex. 256 dated February 16, 1960 the appellant complained to the respondent’s father who was then in Indonesia that the respondent kept on abusing him, his parents and sister and that he was extremely unhappy. The appellant says in the letter that differences between a husband and wife were understandable but that it was impossible to tolerate the respondent constantly accusing him and his relatives of wickedness. The appellant complains that the respondent used to say that the book written by his father should be burnt to ashes, that the appellant should apply the ashes to his forehead, that the whole Dastane family was utterly mean and that she wished that his family may be utterly ruined. The appellant was gravely hurt at the respondent’s allegation that his father’s ‘Sanad’ had been once forfeited. The appellant tells the respondent’s father that if he so desired he could ask her whether anything stated in the letter was untrue and that he had conveyed to her what he was stating in the letter. It may be stated that the respondent admits that the appellant had shown her this letter before it was posted to her father. On March 21, 1960 the respondent wrote a letter (Ex. 519) to the appellant’s parents admitting the truth of the allegations made by the appellant in Ex. 256. On June 23, 1960 the respondent made a noting in her own hand stating that she had accused the appellant of being a person with a beggarly luck, that she had said that the food eaten at his house, instead of being digested would cause worms in the stomach and she had given a threat; “murder shall be avenged with murder.”
40. During June 1, 1960 to December 13, 1960 the marital relations were subjected to a stress and strain which ultimately wrecked the marriage. In about September, 1960 the appellant’s father probably offered to mediate and asked the appellant and the respondent to submit to him their respective complaints in writing. The appellant’s bill of complaints is at Ex. 426 dated October 23, 1960. The letter, much too long to be reproduced, contains a sorry tale. The gist of the more important of the appellant’s grievances in regard to the period prior to June, 1960 is this:(I) The respondent used to describe the appellant’s mother as a boorish woman; (2) On the day of ‘ Paksha’ (the day on which oblations are offered to ancestors) she used to abuse the ancestors of the appellant; (3) She tore off the ‘Mangal-Sutra’; (4) She beat the daughter Shubha while she was running a high temperature 104 ; (5) One night she started behaving as if she was ‘possessed’. She tore off the Mangal Sutra once again and said that she will not put it on again; and (6) She used to switch on the light at mid-night and sit by the husband’s bedside nagging him through the night; as a result, he literally prostrated himself before her on several occasions.
41. The gist of the incidents from May to October, 1960 which the appellant describes as ‘a period of utmost misery’ is this:(1) The respondent would indulge in every sort of harassment and would blurt out anything that came to her mind; (2) One day while a student of the appellant called Godse was sitting in the outer room she shouted:”You are not a man at all”; (3) In the heat of anger she used to say that she would pour kerosene on her body and would set fire to herself and the house; (4) She used to lock out the appellant when he was due to return from the office. On four or five occasions he had to go back to the office without taking any food; (5) For the sheer sake of harassing him she would hide his shoes, watch, keys and other things. The letter Ex. 426 concludes by saying:
“She is a hard headed, arrogant, merciless, thoughtless, unbalanced girl devoid of sense of duty. Her ideas about a husband are:He is a dog tied at doorstep who is supposed to come and go at her beck and call whenever ordered. She behaves with the relatives of her husband as if they were her servants. When I see her besides herself with fury, I feel afraid that she may kill me at any moment. I have become weary of her nature of beating the daughters, scolding and nagging me every night uttering abuses and insults.”
42. Most of these incidents are otherwise supported, some by the admissions of the respondent herself, and for their proof we do not have to accept the bare word of the appellant.
43. On July 18, 1960 the respondent wrote a letter (Ex. 274) to the appellant admitting that within the hearing of a visitor she had beaten the daughter Shubha severely. When the appellant protested she retorted that if it was a matter of his prestige, he should not have procreated the children. She has also admitted in this letter that in relation to her daughters she had said that there will be a world deluge because of the birth of those ‘ghosts”. On or about July 20, 1960 she wrote another letter (Ex.275) to the appellant admitting that she had described him as “a monster in a human body”, that she had said that she should not have procreated children, that he should “Pickle them and preserve them in a jar” and that she had given a threat that she would see to it that he loses his job and then she would publish the news in the Poona newspapers. On December 15, 1960 the appellant wrote a letter (Ex. 285) to the respondent’s father complaining of the strange and cruel behaviour not only of the respondent but of her mother. He says that the respondent’s mother used to threaten him that since she was the wife of an Under Secretary she knew many important persons and could get him dismissed from service, that she used to pry into his correspondence in his absence and that she even went to the length of saying that the respondent ought to care more for her parents because she could easily get another husband but not another pair of parents.
44. The respondent then went to Poona for the appellant’s brother’s marriage, was examined by Dr, Seth of the Yeravada Hospital and the spouses parted company on February 27, 1961.
45. The correspondence subsequent to February 27, 1961 shall have to be considered later in a different, though a highly important, context. Some of those letters clearly bear the stamp of being written under legal advice. The parties had fallen out for good and the domestic war having ended inconclusively they were evidently preparing ground for a legal battle.
46. In regard to the conduct of the respondent as reflected in her admissions, two contentions raised on her behalf must be considered. It is urged in the first place that the various letters containing admissions were written by her under coercion. There is no substance in this contention. In her written Statement, the respondent alleged that the appellant’s parents had coerced her into writing the letter. At the trial she shifted her ground and said that the coercion proceeded from the appellant himself. That apart, at a time when the marriage had gone as under and the respondent sent to the appellant formal letters resembling a lawyer’s notice some of them by registered post, no allegation was made that the appellant or his parents had obtained written admissions from her. Attention may be drawn in this behalf to the letters Exs. 299 and 314 dated March 23 and May 6, 1961 or to the elaborate complaint Ex.318 dated May 19, 1961 which she made to the Secretary to the Government of India. Ministry of Food and Agriculture. Prior to that on September 23, 1960 she had drawn up a list of her complaints (Ex.4240 which begins by saying:”He has oppressed me in numerous ways like the following.” But she does not speak therein of any admission or writing having been obtained from her. Further, letters like Exs.271 and 272 dated respectively June 23 and July 10 1960 which besides containing admissions on her part also contain allegations against the appellant could certainly not have been obtained by coercion. Finally, considering that the respondent was always surrounded by a group of relatives who had assumed the role of marriage counsellors, it is unlikely that any attempt to coerce her into making admissions would have been allowed to escape unrecorded. After all, the group here consists of greedy letter writers.
47. The second contention regarding the admissions of the respondent is founded on the provisions of Section 23 (1) (a) of the Act under which the court cannot decree relief unless it is satisfied that “the petitioner is not in any way taking advantage of his …….., own wrong.” The fulfilment of the conditions mentioned in Section 23 (1) is so imperative that the legislature has taken the care to provide that “then, and in such a case, but not otherwise, the court shall decree such relief accordingly.” It is urged that the appellant is a bigoted and ego-centric person who demanded of his wife an impossibly rigid standard of behaviour and the wife’s conduct must be excused as being in self-defence. In other words, the husband is said to have provoked the wife to say and act the way she did and he cannot be permitted to take advantage of his own wrong. The appellant, it is true, seems a stickler for domestic discipline and these so-called perfectionists can be quite difficult to live with. On September 22 ,1957 the respondent made a memorandum (Ex. 379) of the instructions given by the appellant, which makes interesting reading:
“Special instructions given by my husband.
(1) on rising up in the morning, to look in the mirror.
(2) Not to fill milk vessel or tea cup to the brim.
(3) Not to serve meals in brass plates, cups and vessels.
(4) To preserve carefully the letters received and if addresses of anybody are given therein to note down the same in the note book of addresses.
(5) After serving the first course during meals, not to repeatedly ask ‘what do you want?’, but to inform at the beginning of the meals how much and which are the courses.
(6) As far as possible not to dip the fingers in any utensils.
(7) Not to do any work with one hand.
(8) To keep Chi. Shuba six feet away from the primus stove and Shegari.
(9) To regularly apply to her ‘Kajal’ and give her tomato juice, Dodascolin etc. To make her do physical exercise, to take her for a walk and not to lose temper with her for a year.
(10) To give him his musts and the things he requires when he starts to go outside.
(l1) Not to talk much.
(12) Not to finish work somehow or the other; for example, to write letters in good hand writing, to take, a good paper, to write straight and legibly in a line.
(13)Not to make exaggerations in letters.
(14) To show imagination in every work. Not to note down the milk purchased on the calendar.”
Now, this was utterly tactless but one say that it called for any attack in defence. The appellant was then 28 and respondent 22 years of age. In that morning flush of the marriage, young and women do entertain lavish of each other and as years roll by they see the folly of their ways. But we do not think that the wife was really offended by instructions given by the appellant. The plea of self-defence seems a clear afterthought which took birth when there was a fundamental failure of faith and understanding.
48. Reliance was then placed on certain letters to show that the husband wanted to assert his will at any cost, leaving the wife no option but to retaliate. We see no substance in this grievance either. The plea in the written statement is one of the denial of conduct alleged and not of provocation. Secondly, there are letters on the record by which the wife and her relatives had from time to time complimented the husband and his parents for their warmth, patience and understanding.
49. Counsel for the respondent laid great emphasis on the letter, Ex. 244 dated May 22, 1959 written by her to the appellant in which she refers to some “unutterable question” put by him to her. It is urged that the appellant was pestering her with a demand for divorce and the “unutterable question” was the one by which he asked for divorce. No such inference can in our opinion be raised. The respondent has not produced the letter to which -Ex. 244 is reply; in the written statement there is hardly a suggestion that the appellant was asking her for a divorce; and the appellant was not asked in ‘his evidence any explanation in regard to the “unutterable question.”
50. These defences to the charge of cruelty must accordingly be rejected. However, learned counsel for the respondent is right in stressing the warning given by Denning, L. J., in Kaslefsky v. Kaslefsky (1950) 2 All ER 398 at page No. 403 that “if the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of, marriage itself is imperilled.” But we think that to hold in this case that the wife’s conduct does not amount to cruelty is to close for ever the door of cruelty so as to totally prevent any access thereto. This is not a case of mere austerity of temper, petulance of manners, rudeness of language or a want of civil attention to the needs of the husband and the household. Passion and petulance have perhaps to be suffered in silence as the price of what turns out to be an injudicious selection of a partner. But the respondent is at the mercy of her inflexible temper. She delights in causing misery to her husband and his relations and she willingly suffers the calculated insults which her relatives hurled at him and his parents:the false accusation that, “the pleader’s Sanad of that old hag of your father was forfeited;” “I want to see the ruination of the whole Dastane dynasty”; “burn the book written by your father and apply the ashes to your forehead”; “you are not a man” conveying that the children were not his; “you are a monster in a human body”; “I will make you lose your job and publish it in the Poona newspapers” – these and similar outbursts are not the ordinary wear and rear of married life but they became, by their regularity, a menace to the peace and well-being of the household. Acts like the tearing of the Mangal-Sutra, locking out the husband when he is due to return from the office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly while in high fever and switching on the light at night and sitting by the besides of the husband merely to nag him are acts which tend to destroy the legitimate ends and objects of matrimony. Assuming that there was some justification for occasional sallies or show of temper, the pattern of behaviour which the respondent generally adopted was grossly excessive.
51. The conduct of the respondent clearly amounts to cruelty within the meaning of Section 10 (1) (b) of the Act. Under that provision, the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent. The threat that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant’s sense of personal safety, mental happiness job satisfaction and reputation. Her once-too-frequent apologies do not reflect genuine contrition but were merely impromptu devices to tide over a crisis temporarily.
52. The next question for consideration is whether the appellant had at any time condoned the respondent’s cruelty. Under Section 23 (1) (b) of the Act, in any proceeding under the Act whether defended or not, the relief prayed for can be decreed only and only if “where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty.”
53. The respondent did not take up the plea in her written statement that the appellant had condoned her cruelty. Probably influenced by that omission the trial court did not frame any issue on condonation While granting a decree of judicial separation on the ground of cruelty, the learned Joint Civil Judge, Junior Division. Poona, did not address himself to the question of condonation. In appeal, the learned Extra Assistant Judge, Poona, having found that the conduct of the respondent did not amount to cruelty, the question of condonation did not arise. The High Court in Second Appeal confirmed the finding of the 1st Appellate Court on the issue of cruelty and it further held that in any case the alleged cruelty was condoned by the appellant. The condonation according to the High Court, consisted in the circumstance that the spouses cohabited till February 27, 1961 and a child was born to them in August, 1961.
54. Before us, the question of condonation was argued by both the sides. It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of ,S. 23 (1) (b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.
55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things:forgiveness and restoration:The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy, Sixth Ed., p. 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and thereby frustrate the benign purpose of marriage laws.
56. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent’s acts of cruelty. This is not a case where the spouses, after separation indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during cohabitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.
57. But condonation of matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Consituation which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. “No matrimonial offence is erased by condonation. It is obscured but not obliterated.” See Words and Phrases Legally Defined (Butterworths), 1969 Ed Vol. I, p. 305 (“Condonation”). Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. See Halsbury’s Laws of England, 3rd Ed., Vol. 12, p. 306. Condoned cruelty can therefore be revived, say, by desertion or adultery.
58. Section 23 (1) (b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore the English doctrine of revival should not be imported into matters arising under the Act. Apparently, this argument may seem to receive some support from the circumstance that under the English law, until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could not be revived if once condoned. See Rayden on Divorce, l1th Ed. (1971) pp. II, 12, 23, 68, 2403. But a closer examination of such an argument would reveal its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great Britain and was adopted by the. English Courts from the canon law. ‘Condonation’ is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. It is not ‘forgiveness’ as commonly understood. See Words and Phrases Legally Defined (Butterworths), 1969 Ed., p. 306 and the Cases cited therein. In England condoned adultery could not be revived because of the express provisions contained in Section 3 of the Matrimonial Causes Act, 1963 which was later incorporated into Section 42 (3) of the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the charge of cruelty, the word ‘condonation’ must receive the meaning which it has borne for centuries in the world of law. See Ferrers v. Ferrers, (1791) 1 Hag Con 130 at pp, 130, 131. ‘Condonation’ under Section 23 (1) (b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. ‘
59. It therefore becomes necessary to consider the appellant’s argument that even on the assumption that the appellant had condoned the cruelty, the respondent by her subsequent conduct forfeited the conditional forgiveness, thereby reviving the original cause of action for judicial separation on the ground of cruelty. It is alleged that the respondent treated the appellant with cruelty during their brief meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that on May 19, 1961 she wrote a letter (Ex. 318) to the Secretary to the Government of India, Ministry of Food and Agriculture, New Delhi, containing false and malicious accusations against the appellant and his parents and that she deserted the appellant and asked the Government to provide her with separate maintenance.
60. These facts, if proved, shall have to be approached and evaluated differently from the facts which were alleged to constitute cruelty prior to its condonation. The incidents on which the appellant relied to establish the charge of cruelty had to be grave and weighty. And we found them to be so. In regard to the respondent’s conduct subsequent to condonation, it is necessary to bear in mind that such conduct may not be enough by itself to found a decree for judicial separation and yet it may be enough to revive the condoned offence. For example, gross familiarities short of adultery or desertion for less than the statutory period may be enough to revive a condoned offence.
61. The incident of March 19, 1961 is too trifling to deserve any notice. That incident is described by the appellant himself in the complaint (Ex.- 295) which he made to the police on March 20, 1961. He says therein that on the 19th morning, the respondent went to his house with some relatives, that those relatives instigated her against him, that they entered his house though he asked them not to do so and that she took away certain household articles with her. As shown by her letter (Ex. 294) dated the 19th itself, the articles which she took away were some petty odds and ends like a doll, a slate, a baby hold-all, two pillows, a bundle of clothes and a baby-cart. The police complaint made by the appellant betrays some hypersensitivity.
62. As regards the children, it does seem that ever since February 27, 1961 the appellant was denied a chance to meet them. His letters Exs. 307, 309 and 342 dated April 20, April, 21 and 23.11.1961 respectively contain the grievance that the children were deliberately not allowed to see him. From his point of view the grievance could be real but then the children, Shubha and Vibha, were just 4 and 2 years of age in February, 1961 when their parents parted company. Children of such tender age need a great amount of looking after and they could not have been sent to meet their father unescorted. The one person who could so escort them was the mother who had left or had to leave the matrimonial home for good. The appellant’s going to the house of the respondent’s parents where she was living was in the circumstances an impracticable proposition. Thus, the wall that divided the parents denied to the appellant access to his children.
63. The allegations made by the respondent in her letter to the Government, EX. 318 dated May 19, 1961 require a close consideration. It is a long letter, quite an epistle, in tune with the respondent’s proclivity as a letter-writer. By that letter she asked the Government to provide separate maintenance for herself and the children. The allegations contained in the letter to which the appellant’s counsel has taken strong exception are these:(1) During the period that she lived with the appellant, she was subjected to great harassment as well as mental and physical torture; (2) The appellant had driven her out of the house on February 27, 1961; (3) The appellant had deserted her and had declared that he will not render any connection with her and that he will not render any financial help, for the maintenance of herself and the children. He also refused to give medical help to her in her advanced stage of pregnancy; (4) The appellant had denied to her even the barest necessities of life like food and clothing; (5) The parents of the appellant were wicked persons and much of her suffering was due to the influence which they had on the appellant; (6) The appellant used to threaten her that he would divorce her, drive her out of the house and even do away with her life; (7) The plan to get her examined by Dr. Seth of the Yeravada Mental Hospital was an insincere, wicked and evil move engineered by the appellant, his brother and his father; (8) On her refusal to submit to the medical examination any further, she was driven out of the house with the children after being deprived of the valuables on her person and in her possession:and (9) the appellant had subjected her to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him.
64. Viewed in isolation, these allegations present a different and a somewhat distorted picture. For their proper assessment and understanding, it is necessary to consider the context in which those allegations came to be made. We will, for that purpose, refer to a few letters.
65. On March 7, 1961 the respondent’s mother’s aunt, Mrs. Gokhale wrote a letter (Ex. 644) to the respondent’s mother. The letter has some bearing on the events which happened in the wake of the separation which took place on February 27, 1961. It shows that the grievance of the respondent and her relatives was not so much that a psychiatrist was consulted as that the consultation was arranged without any prior intimation to the respondent. The letter show, that the appellant’s brother Dr. Lohokare, and his brother-in-law Deolalkar, expressed regret that the respondent should have been got examined by a psychiatrist without previous intimation to any of her relatives. The letter speaks of a possible compromise between the husband and wife and it sets out the terms which the respondent’s relatives wanted to place before the appellant. The terms were that the respondent would stay at her parents’ place until her delivery but she would visit the appellant off and on; that the children would be free to visit the appellant; and that in case the appellant desired that the respondent should live with him, he should arrange that Dr. Lohokare’s mother should stay with them in Delhi for a few days. The last term of the proposed compromise was that instead of digging the past the husband and wife should live in peace and happiness. The letter bears mostly the hand-writing of the respondent herself and the significance of that circumstance is that it was evidently written with her knowledge and consent. Two things are clear from the letter:one, that the respondent did not want to leave the appellant and two, that she did not either want to prevent the children from seeing the appellant. The letter was written by one close relative of the respondent to another in the ordinary course of events and was not, so to say, prepared in order to create evidence or to supply a possible defence. It reflects a genuine attitude, not a make-believe pose and the feelings expressed therein were shared by the respondent whose handwriting the letter bears.
66. This letter must be read along with the letter Ex. 304 which the respondent sent to the appellant on April 18, 1961. She writes:
“I was sorry to hear that you are unwell and need treatment. I would always like never to fail in my wifely duty of looking after you, particularly when you are ailing, but you will, no doubt, agree that even for this, it will not be possible for me to join you in the house out of which you have turned me at your father’s instance. This is, therefore, just to keep you informed that if you come to 7/6 East Patel Nagar, I shall be able to nurse you properly and my parents will ever be most willing to afford the necessary facilities under their care to let me carry out this proposal of mine.”
There is no question that the respondent had no animus to desert the appellant and as stated by her or on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gokhale’s house in Poona, may be in the hope that she will cooperate with Dr. Seth in the psychiatric exploration. She did not leave the house of her own volition.
67. But the appellant had worked himself up to believe that the respondent had gone off her mind. On March 15, 1961 he made a complaint (Ex. 292) to the Delhi Police which begins with the recital that the respondent was in the Mental Hospital before marriage and that she needed treatment from a psychiatrist. He did say that the respondent was “a very loving and affectionate person” but he qualified it by saying:”when excited, she appears to be a very dangerous woman, with confused thinking.”
68. On April 20, 1961 the appellant wrote a letter (Ex. 305) to the respondent charging her once again of being in an “unsound state of mind.” The appellant declared by that letter that he will not be liable for any expenses incurred by her during her stay in her parents house. On the same date he wrote a letter (Ex. 307) to the respondent’s father reminding him that he, the appellant, had accepted a girl “who had returned from the Mental Hospital.” On April 21, 1961 he wrote a letter (Ex. 309) to the Director of Social Welfare, Delhi Administration, in which he took special care to declare that the respondent “was in the Poona Mental Hospital as a lunatic before the marriage.” The relevance of these reiterations regarding the so called insanity of the respondent, particularly in the last letter, seems, only this, that the appellant was preparing ground for a decree of divorce or of annulment of marriage. He was surely not so naive as to believe that the Director of Social Welfare could arrange to “give complete physical and mental rest” to the respondent. Obviously, the appellant was anxious to disseminate the information as widely as possible that the respondent was of unsound mind. ‘
69. On May 6, 1961 the respondent sent a reply (Ex. 314) to the appellant’s letter, Ex. 305, dated April 20, 1961. She expressed her willingness to go back to Poona as desired by him, if he could make satisfactory arrangements for her stay there. But she asserted that as a wife she was entitled to live with him and there was no purpose in her living at Poona “so many miles away from Delhi, without your shelter.” In regard to the appellant’s resolve that he will not bear the expenses incurred by her, she stated that not a pie remitted by him will be ill-spent and that, whatever amount he would send her will be accounted for fully.
70. It is in this background that on May 19, 1961 the respondent wrote the letter Ex. 318 to the Government. When asked by the Government to offer his explanation, the appellant by his reply EX. 323 dated July 19, 1961 stated that the respondent needed mental treatment, that she may have written the letter Ex. 318 in a “madman’s frenzy” and that her father had “demoralised” her. In his letter Ex. 342 dated November 23, 1961 to the respondent’s father, he described the respondent as “your schizophrenic daughter.”
71. Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive the original cause of action. These allegations were provoked by the appellant by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. He snatched every chance and wasted no opportunity to describe her as a mad woman which, for the purposes of this appeal we must assume to be wrong and unfounded. He has been denied leave to appeal to this Court from the finding of the High Court that his allegation that the respondent was of unsound mind is baseless. He also protested that he was not liable to maintain the respondent. It is difficult in these circumstances to accept the appellant’s agreement either, that the respondent deserted him or that she treated him with cruelty after her earlier conduct was condoned by him.
72. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival: Cooper v. Cooper, (1950) WN 200 (HL) and in cases of cruelty, “very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in conduct, and behaviour, day in and day out, night in and night out.” Per Scott, L. J. in Bertram v. Bertram, (1944) P 59 at page No. 60. But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the grant of such forgiveness does not give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant’s parents as “wicked” but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty.
73. We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the subsequent conduct of the respondent is not such as to amount to a revival of the original cause of action. Accordingly, we dismiss the appeal and direct the appellant to pay the costs of the respondent.
. Halsbury’s Laws of England, 3rd Ed., Vol. 12, p. 306, para 609
. Beard v.Beard, (1945)2 All ER 306
Keywords:-Legally wedded wife-Maintenance-summary remedy-
The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISCELLANEOUS PETITION No.19530/2013
SPECIAL LEAVE PETITION (CRL.) No.8596/2013
Sou.Urmila Badshah Godse & Anr. …Respondents
J U D G M E N T
1. There is a delay of 63 days in filing the present Special Leave Petition and further delay of 11 days in refilling Special Leave Petition. For the reasons contained in the application for condonation of delay, the delay in filing and refilling of SLP is condoned.
2. The petitioner seeks leave to appeal against the judgment and order dated 28.2.2013 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Writ Petition No.144/2012. By means of the impugned order, the High Court has upheld the award of maintenance to respondent No.1 at the rate of Rs.1000/- per month and to respondent No.2 (daughter) at the rate of Rs.500/- per month in the application filed by them under Section 125 of the Code of Criminal Procedure (Cr.P.C.) by the learned Trial Court and affirmed by the learned Additional Sessions Judge. Respondents herein had filed proceedings under Section 125, Cr.P.C. before Judicial Magistrate First Class (JMFC) alleging therein that respondent No.1 was the wife of the petitioner herein and respondent No.2 was their daughter, who was born out of the wedlock.
3. The respondents had stated in the petition that respondent No.1 was married with Popat Fapale. However, in the year 1997 she got divorce from her first husband. After getting divorce from her first husband in the year 1997 till the year 2005 she resided at the house of her parents. On demand of the petitioner for her marriage through mediators, she married him on 10.2.2005 at Devgad Temple situated at Hivargav-Pavsa. Her marriage was performed with the petitioner as per Hindu Rites and customs. After her marriage, she resided and cohabited with the petitioner. Initially for 3 months, the petitioner cohabited and maintained her nicely. 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 parents 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 alongwith 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. Respondent No.2, Shivanjali, was born on 28.11.2005. On the aforesaid averments, the respondents claimed maintenance for themselves.
4. The petitioner contested the petition by filing his written statement. He dined his relation with respondent Nos.1 and 2 as his wife and daughter respectively. He alleged that he never entered with any matrimonial alliance with respondent No.1 on 10.2.2005, as claimed by respondent No.1 and in fact respondent No.1, who was in the habit of leveling false allegation, was trying to blackmail him. He also denied co-habitation with respondent No.1 and claimed that he was not the father of respondent No.2 either. According to the petitioner, he had married Shobha on 17.2.1979 and from that marriage he had two children viz. 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.
5. Evidence was led by both the parties and after hearing the arguments the learned JMFC negatived the defence of the petitioner. In his judgment, the JMFC formulated four points and gave his answer thereto as under:
|1. |Does applicant no.1 Urmila proves that she is |Yes |
| |a wife and applicant No.2 Shivanjali is | |
| |daughter of non applicant? | |
|2. |Does applicant No.1 Urmila proves that |Yes |
| |non-applicant has deserted and neglected them| |
| |to maintain them through having sufficient | |
| |means? | |
|3. |Whether applicant No.1 Urmila and Applicant |Yes |
| |No.2 Shivanjali are entitled to get | |
| |maintenance from non-applicant? | |
|4. |If yes, at what rate? |Rs. 1,000/- |
| | |p.m. to |
| | |Applicant |
| | |No. 1 and |
| | |Rs. 500/- |
| | |p.m. to |
| | |Applicant |
| | |No. 2. |
6. It is not necessary to discuss the reasons which prevailed with the learned JMFC in giving his findings on Point Nos.1 and 2 on the basis of evidence produced before the Court. We say so because of the reason that these findings are upheld by the learned Additional Sessions Judge in his judgment while dismissing the revision petition of the petitioner herein as well as the High Court. These are concurrent findings of facts with no blemish or perversity. It was not even argued before us as the argument raised was that in any case respondent No.1 could not be treated as “wife” of the petitioner as he was already married and therefore petition under Section 125 of the Cr.P.C. at her instance was not maintainable. Since, we are primarily concerned with this issue, which is the bone of contention, we proceed on the basis that the marriage between the petitioner and respondent No.1 was solemnized; respondent No.1 co-habited with the petitioner after the said marriage; and respondent No.2 is begotten as out of the said co-habitation, whose biological father is the petitioner. However, it would be pertinent to record that respondent No.1 had produced overwhelming evidence, which was believed by the learned JMFC that the marriage between the parties took place on 10.2.2005 at Devgad Temple. This evidence included photographs of marriage. Another finding of fact was arrived at, namely, respondent No.1 was a divorcee and divorce had taken place in the year 1997 between her and her first husband, which fact was in the clear knowledge of the petitioner, who had admitted the same even in his cross-examination.
7. The learned JMFC proceeded on the basis that the petitioner was married to Shobha and was having two children out of the wedlock. However, at the time of solemnizing the marriage with respondent No.1, the petitioner intentionally suppressed this fact from her and co-habited with respondent No.1 as his wife.
8. The aforesaid facts emerging on record would reveal that at the time when the petitioner married the respondent No.1, he had living wife and the said marriage was still subsisting. Therefore, under the provisions of Hindu Marriage Act, the petitioner could not have married second time. At the same time, it has also come on record that the petitioner duped respondent No.1 by not revealing the fact of his first marriage and pretending that he was single. After this marriage both lived together and respondent No.2 was also born from this wedlock. In such circumstances, whether respondents could filed application under Section 125 of the Cr.P.C., is the issue. We would like to pin point that in so far as respondent No.2 is concerned, who is proved to be the daughter of the petitioner, in no case he can shun the liability and obligation to pay maintenance to her. The learned counsel ventured to dispute the legal obligation qua respondent No.1 only.
9. The learned counsel for the petitioner referred to the judgment of this Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr. In that case, it was held that a Hindu lady who married after coming into force Hindu Marriage Act, with a person who had a living lawfully wedded wife cannot be treated to be “legally wedded wife” and consequently her claim for maintenance under Section 125, Cr.P.C. is not maintainable. He also referred to later judgments in the case of Savitaben Somabai Bhatiya vs. State of Gujarat & Ors. wherein the aforesaid judgment was followed. On the strength of these two judgments, the learned counsel argued that the expression “wife” in Section 125 cannot be stretched beyond the legislative intent, which means only a legally wedded-wife. He argued that Section 5(1) (i) of the Hindu Marriage Act, 1955 clearly prohibits 2nd marriage during the subsistence of the 1st marriage, and so respondent No.1 cannot claim any equity; that the explanation clause
(b) to Section 125 Cr.P.C. mentions the term “divorce” as a category of claimant, thus showing that only a legally wedded-wife can claim maintenance. He, thus, submitted that since the petitioner had proved that he was already married to Shobha and the said marriage was subsisting on the date of marriage with respondent No.1, this marriage was void and respondent No.1 was not legally wedded wife and therefore had no right to move application under Section 125 of the Cr.P.C.
10. Before we deal with the aforesaid submission, we would like to refer two more judgments of this Court. First case is known as Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr. In this case it was held:
“The validity of the marriage for the purpose of summary proceeding under s.125 Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is not as strict as is required in a trial of offence under section 494 of the IPC. If the claimant in proceedings under s.125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under S.125,Cr.P.C. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under S.125, Cr.P.C. which are of summary nature strict proof of performance of essential rites is not required.
It is further held:
It is to be remembered that the order passed in an application under section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed Civil Suit which is spending before the trial court. In such a situation, this Court in S.Sethurathinam Pillai vs. Barbara alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that maintenance under section 488, Cr.P.C. 1898 (similar to Section 125, Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal Court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.”
11. No doubt, it is not a case of second marriage but deals with standard of proof under Section 125, Cr.P.C. by the applicant to prove her marriage with the respondent and was not a case of second marriage. However, at the same time, this reflects the approach which is to be adopted while considering the cases of maintenance under Section 125,Cr.P.C. which proceedings are in the nature of summary proceedings.
12. Second case which we would like to refer is Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr. The Court has held that the term “wife” occurring in Section 125, Cr.P.C. is to be given very wide interpretation. This is so stated in the following manner:
“A broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under Section 125 of the Cr.P.C. so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.”
13. No doubt, in Chanmuniya (supra), the Division Bench of this Court took the view that the matter needs to be considered with respect to Section 125,Cr.P.C., by larger bench and in para 41, three questions are formulated for determination by a larger bench which are as follows:
“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,Cr.P.C. having regard to the provisions of the Domestic Violence Act, 2005?
3. Whether a marriage performed according to the 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,Cr.P.C.?”
14. On this basis, it was pleaded before us that this matter be also tagged along with the aforesaid case. However, in the facts of the present case, we do not deem it proper to do so as we find that the view taken by the courts below is perfectly justified. We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter.
15. Firstly, in Chanmuniya case, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason, thus, giving rise to claim of maintenance under Section 125,Cr.P.C. by interpreting the term “wife” widely. The Court has impressed that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125,Cr.P.C. On the other hand, in the present case, respondent No.1 has been able to prove, by cogent and strong evidence, that the petitioner and respondent No.1 had been married each other.
16. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnized, the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125,Cr.P.C. as respondent No.1 is not “legally wedded wife” of the petitioner? Our answer is in the negative. We are of the view that at least for 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 two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marriages second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized.
17. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125,Cr.P.C. While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.
18. Of late, in this very direction, it is emphasized that the Courts have to adopt different approaches in “social justice adjudication”, which is also known as “social context adjudication” as mere “adversarial approach” may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently:
“It is, therefore, respectfully submitted that “social context judging” is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social- economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.”
19. Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.
20. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both Constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law.
21. Cardozo acknowledges in his classic “….no system of jus scriptum has been able to escape the need of it”, and he elaborates: “It is true that Codes and Statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had none the less a real and ascertainable pre- existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a judge’s troubles in ascribing meaning to a stature.” Says Gray in his lecture “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what is would have intended on a point not present to its mind, if the point had been present.”
22. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances.
23. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano guaranteeing maintenance rights to Muslim women is a classical example.
24. In Rameshchandra Daga v. Rameshwari Daga, the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not ‘immoral’ and hence a financially dependent woman cannot be denied maintenance on this ground.
25. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon’s Case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Cr.P.C., such a woman is to be treated as the legally wedded wife.
26. The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance.
27. In taking the aforesaid view, we are also encouraged by the following observations of this Court in Capt.Ramesh Chander Kaushal vs. Veena Kaushal :
“The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause – the cause of the derelicts.”
28. For the aforesaid reasons, we are not inclined to grant leave and dismiss this petition.
[Ranjana Prakash Desai]………J.
New Delhi, October 18, 2013
 (1988) 1 SCC 530
 (2005) 3 SCC 636
 (1999) 7 SCC 675
 (2011) 1 SCC 141
 Delivered a key note address on “Legal Education in Social Context”
 The Nature of Judicial Process
 From the Book “The Nature and Sources of the Law” by John Chipman Gray
 AIR 1985 SC 945
 AIR 2010 SC 305
 AIR 2005 SC 422
 (1854) 3 Co.Rep.7a,7b
 (1978) 4 SCC 70
Both parents are obliged to pay maintenance to child in proportion to their salary
AIR 2000 SC 1398 : (2000) 2 SCR 621 : (2000) 4 SCC 266 : (2000) 2 SCALE 589
(SUPREME COURT OF INDIA)
|Ratan Lal Sharma||Respondent|
(Before: D. P. Wadhwa And M. B. Shah, JJ.)
Civil Appeal No. 2462 of 1999, Decided on: 28-03-2000.
Hindu Adoptions And Maintenance Act, 1956 -Sections 20, 18 and 3(b)—Maintenance—Both father and mother of child employed—Law does not require that only father has obligation to maintain minor
Counsel for the Parties:
R.N. Surolia, Ms. Rashmi Jain, R.P. Gupta and Pandey, Advocates, for Appellant.
D.P. Wadhwa, J—Appellant, the wife, whose marriage with the respondent has since been dissolved by decree of divorce on the ground of cruelty on the petition filed by her, has filed this appeal not only seeking enhanced maintenance for two minor children of the marriage but also for claiming the same from the date of application filed under Section 26 of the Hindu Marriage Act, 1955 (for short the ‘Act’) in the Family Court, Jaipur Appellant is also aggrieved by the order of the Courts below not granting her full claim of ‘streedhan’, litigation expenses, etc.
2. Both the parties are Hindu. Their marriage was solemnized in accordance with Hindu rites on May 2, 1983. First child, a son, was born on January 27, 1984 and the second child, also a son, was born on June 28, 1985. Wife filed petition for dissolution of marriage on May 21, 1990. She also prayed therein for return of her ‘streedhan,’ custody and guardianship of the children and also for their maintenance. At the same time she also filed an application under Section 125 of Code of Criminal Procedure (Code).
3. On August 2, 1991 wife filed a petition under Section 26 of the Act in the Family Court claiming maintenance @ ` 2575/- per month for both the children. In the affidavit supporting the application, however, maintenance was claimed @ ` 2,500/- per month for both the children. It was pointed out that husband was getting a salary of ` 6233.40 per month. Wife also claimed a sum of ` 1,585/- as admission fee in schools for the children and ` 5,000/- as litigation expenses.
4. Family Court by order dated April 7, 1992 granted maintenance under Section 125 of the Code @ ` 250/- per month for each child. On April 30, 1992 Family Court awarded a further sum of ` 250/- per month for each child as interim maintenance under Section 26 of the Act. Family Court also framed issues relating to the custody, guardianship and maintenance of the minor children and also regarding ‘streedhan.’
5. On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew the attention of the Court to her earlier application filed on August 2, 1991. Now she claimed ` 2000/- per month for each child. She said salary of the husband had since been increased to ` 12,225/- in August, 1995. On August 26, 1996 yet another application was filed by wife under Section 26 of the Act. Now she wanted main-tenance for the elder child @ ` 3,500/- per month and for the younger child @ ` 3,000/- per month. It was pointed out that the salary of the husaband was ` 13,683/- per month and thereafter from August, 1997 it was going to be increased to ` 14,550/- per month.
6. Family Court by order dated September 13, 1997 consolidated both the proceedings – one under Section 13 of the Act for dissolution of the marriage and the other under Section 26 of the Act. On October 4, 1997 Family Court granted decree of divorce in favour of the wife dissolving the marriage between her and the respondent. Against claim of ` 1,80,000/- towards ‘streedhan’ Family Court granted a decree of ` 1,00,000/- as cost of the articles which prayer was granted in the alternative if the respondent did not return the article mentioned by wife in her petition. It was also ordered that both the children till they attain majority, should be in the custody of the mother, the appellant, and maintenance for each of the child was awarded @ ` 500/- per month from October 4, 1997. A sum of ` 1,000/- was awarded as cost of the liigation to the wife:
7. Wife took the matter to the High Court seeking enhanced amount of maintenance of the children and decree for the full amount of ` 1,80,000/-. High Court by its impugned judgment, enhanced maintenance of the children from ` 500/- per month to ` 1,000/- per month effective from the date of the order of the Family Court dated October 4, 1997 and awarded ` 500/- per month for each child from the date of the application. High Court observed, though in our view not correctly, that “it is an incumbent liability on the part of the father to bear the cost of eduction and the maintenance expenses for the two children….” High Court also observed that the respondent was “admittedly employed in a responsible position in the Reserve Bank of India where his gross pay packet amounts to ` 13,000/- per month.” During the course of hearing we have been told that the husband is employed as a clerk in the Reserve Bank of India while the appellant-wife is a lecturer in a Government college in Rajasthan. High Court rejected the prayer of the wife for enhancement of any amount from ` 1,00,000/-. High Court made certain directions for the husband to meet the children and with that we are not concerned. High Court disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim order passed on February 22, 1999 it was directed by this Court that by way of interim relief maintenance for each of the child be paid @ ` 1,500/- per month by the respondent-husband.
8. This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the evidence led before the Family Court. There is a concurrent finding of award of ` 1,00,000/- to the wife though in the alternative being the cost of the articles presented at the time of the marriage which we are not going to disturb. As far as costs and special costs are concerned that again is within the discretion of the Court and unless some weighty reason is shown to us we again do not think that we should unsettle the payment of award of costs by the Family Court and nor payment of costs by the High Court. Appellant says she has been harassed persistently by the husaband in delaying the trial before the Family Court. But then husband also has a grievance that in the Family Court he could not get the services of a lawyer though the wife was represented by her father, who himself is a lawyer and while her father would argue in the Court she would remain mute.
9. Respondent before us has not appeared instead of notice to him. We have heard the arguments of the wife ex parte. On February 28, 2000 an application was filed by the appellant for placing on record additional documents which are all of the period after filing of this appeal. No notice has been given to the respondent of this application. The purpose of the application appears to be to further enhance the amount of maintenance taking into account the charged circumstances as the salary of the respondent-husband is stated to have increased by passage of time. Various documents like receipts for payment of school fees buying of books school bags etc. have been filed. We are not inclined to permit this application at this stage. If circumstances have changed for enhancement of maintenance appellant can approach the Family Court again as an order under Section 26 of the Act is never final and decree passed thereunder is always subject to modification.
10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardanship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the ‘Maintenance Act’) to understand the meaning of the ‘maintenance’. In Clause (b) of Section 3 of this Act “maintenance includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.” and under Clause (c) “minor means a person who has not completed his or her age of eighteen years.” Under Section 18 of Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20*2 provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore, to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.
2.20 Maintenance of children and aged parents. – (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
(3) 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.
Explanation. – In this section “parent” includes a childless stepmother.
11. In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentioned that she is getting a salary of ` 3,100/- per month and husband is getting a salary of ` 5,850/- per month. She is therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of ` 250/- per month for each of the child under Section 125 of the Code. That amount we need not touch.
12. Considering the overall picture in the present case we are of the view that a sum of ` 3,000/- per month for each of the child would be sufficient to maintain him, which shall be borne by both the parent in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of ` 2,000/- per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court. For the earlier period respondent shall pay ` 500/- per month for each of the child from the date of the application, i.e., August 2, 1991 and @ ` 1,000/- per month from the date of the second application, which is October 27, 1995 and @ ` 1,500/- per month from the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the respondent has already been paying to the children @ ` 250/- per month under Section 125 of the Code. Respondent shall be entitled to make adjustment of the amounts which he has already paid under orders of the Family Court. High Court or the interim order of this Court.
13. The appeal is thus partly allowed. There shall be no order as to costs as respondent has chosen not to appear.
. 26. Custody of children. – In any proceeding under this Act, the Court may, from time to time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as right have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the Court may, also from time to time revoke, suspend or vary any such order and provisions previously made.