Please tell me which of these complete judgements you want?

AP

Amina Appellants v Hassn Koya Respondents. Citation: 2004-AIR(SC) -1227 ,

2003-SCC-6-93 Judges: M. B.. Shah, Arun Kumar JJ Enactment: Criminal Procedure
Code, Section 125. Judgement Date: 28/04/2003 HEAD NOTES : CRIMINAL PROCEDURE
CODE, SECTION 125 - MAINTENANCE TO ILLEGITIMATE CHILD - WIFE PREGNANT FOR 5
MONTHS AT TIME OF MARRIAGE - HUSBAND WAS AWARE OF THIS FACT - CHILD BORN AFTER 4
MONTHS OF MARRIAGE - MARRIAGE IS NOT INVALID - BOTH WIFE AND CHILD ENTITLED TO
MAINTENANCE FROM HUSBAND. ILR 1921 VOL. XLV BOM 151, ILR 1967 VOL. 1 KERALA
RELIED. @PARA = [PARA ]. Judgement : Arun Kumar, J. - Leave granted.

B. P. Achala Anand , Appellant; v S. Appi Reddy and Another , Respondents.

Citation: 2005-SCC-3-313 , 2005-AIR(SC) -986 Judges: R.C. Lahoti, C.J. and G.R
Mathur and P.K. Balasubramanyan, JJ. Enactment: Constitution of India, Art. 142;
Hindu Adoptions and Maintenance Act, 1956 - S. 18 r/w S. 3(b); Criminal
Procedure Code, 1973, Ss. 125 and 127; Muslim Law, Maintenance, Family Courts
Act, 1984, S. 7(1) Expln. (f); Tenancy, Transfer of Property Act, 1882, Ss. 108
and 105; Civil Procedure Code, 1908, Or. 1 Rr. 3, 9 & 10; Hindu Marriage Act,
1955, Ss. 25, 24 and 27; Divorce Act, 1869, S. 37, Parsi Marriage and Divorce
Act, 1936, Ss. 40, 39 and 42; Special Marriage Act, 1954, Ss.. 37 and 36; Muslim
Law, Divorce, Maintenance, Rent Control and Eviction, Tenancy, Transfer of
Property Act, 1882, Ss. 108 and 105; Karnataka Rent Control Act, 1961 (22 of
1961), S. 21 Judgement Date: 11/02/2005 HEAD NOTES: A.. CONSTITUTION OF INDIA -
ART. 142 -
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - S. 18 R/W S. 3(B) - CRIMINAL
PROCEDURE CODE, 1973, SS. 125 AND 127 - MUSLIM LAW - MAINTENANCE - FAMILY COURTS
ACT, 1984, S. 7(1) EXPLN. (F) - RENT CONTROL AND EVICTION - TENANCY - TRANSFER
OF PROPERTY ACT, 1882 - SS. 108 AND 105 - CIVIL PROCEDURE CODE, 1908 - OR. 1 RR.
3, 9 & 10 - LANDLORD-TENANT LITIGATION - WHO CAN BE JOINED - KARNATAKA RENT
CONTROL ACT, 1961 (22 OF 1961), S. 21 B. HINDU ADOPTIONS AND MAINTENANCE ACT,
1956, S. 18 R/W S. 3(B) - HINDU MARRIAGE ACT, 1955, SS. 25, 24 AND 27 - DIVORCE
ACT, 1869, S. 37 - PARSI MARRIAGE AND DIVORCE ACT, 1936, SS. 40, 39 AND 42 -
SPECIAL MARRIAGE ACT, 1954, SS. 37 AND 36 - CRIMINAL PROCEDURE CODE, 1973, SS.
125 AND 127 - MUSLIM LAW - DIVORCE - MAINTENANCE - RENT CONTROL AND EVICTION -
TENANCY - TRANSFER OF PROPERTY ACT, 1882, SS. 108 AND 105 - CIVIL PROCEDURE
CODE, 1908 - OR. 1 RR. 3, 9 & 10 - LANDLORD-TENANT LITIGATION - WHO CAN BE
JOINED - KARNATAKA RENT CONTROL
ACT, 1961 (22 OF
1961), S. 21 IN OUR OPINION, A DESERTED WIFE WHO HAS BEEN OR IS ENTITLED TO BE
IN OCCUPATION OF THE MATRIMONIAL HOME IS ENTITLED TO CONTEST THE SUIT FOR
EVICTION FILED AGAINST HER HUSBAND IN HIS CAPACITY AS TENANT SUBJECT TO
SATISFYING TWO CONDITIONS : FIRST, THAT THE TENANT HAS GIVEN UP THE CONTEST OR
IS NOT INTERESTED IN CONTESTING THE SUIT AND SUCH GIVING UP BY THE
TENANT-HUSBAND SHALL PREJUDICE THE DESERTED WIFE WHO IS RESIDING IN THE
PREMISES; AND SECONDLY, THE SCOPE AND AMBIT OF THE CONTEST OR DEFENCE BY THE
WIFE WOULD NOT BE ON A FOOTING HIGHER OR LARGER THAN THAT OF THE TENANT HIMSELF.
IN OTHER WORDS, SUCH A WIFE WOULD BE ENTITLED TO RAISE ALL SUCH PLEAS AND CLAIM
TRIAL THEREON, AS WOULD HAVE BEEN AVAILABLE TO THE TENANT HIMSELF AND NO MORE.
SO LONG AS, BY AVAILING THE BENEFIT OF THE PROVISIONS OF THE TRANSFER OF
PROPERTY ACT AND RENT CONTROL LEGISLATION, THE TENANT WOULD HAVE BEEN ENTITLED
TO STAY IN THE TENANCY PREMISES, THE WIFE TOO CAN
CONTINUE TO STAY
EXERCISING HER RIGHT TO RESIDENCE AS A PART OF RIGHT TO MAINTENANCE SUBJECT TO
COMPLIANCE WITH ALL SUCH OBLIGATIONS INCLUDING THE PAYMENT OF RENT TO WHICH THE
TENANT IS SUBJECT. THIS RIGHT COMES TO AN END WITH THE WIFE LOSING HER STATUS AS
WIFE CONSEQUENT UPON DECREE OF DIVORCE AND THE RIGHT TO OCCUPY THE HOUSE AS PART
OF RIGHT TO MAINTENANCE COMING TO AN END. WE ARE ALSO OF THE OPINION THAT A
DESERTED WIFE IN OCCUPATION OF THE TENANTED PREMISES CANNOT BE PLACED IN A
POSITION WORSE THAN THAT OF A SUB-TENANT CONTESTING A CLAIM FOR EVICTION ON THE
GROUND OF SUBLETTING. HAVING BEEN DESERTED BY THE TENANT-HUSBAND, SHE CANNOT BE
DEPRIVED OF THE ROOF OVER HER HEAD WHERE THE TENANT HAS CONVENIENTLY LEFT HER TO
FACE THE PERIL OF EVICTION ATTRIBUTABLE TO DEFAULT OR NEGLECT OF HIMSELF. WE ARE
INCLINED TO HOLD - AND WE DO SO - THAT A DESERTED WIFE CONTINUING IN OCCUPATION
OF THE PREMISES OBTAINED ON LEASE BY HER HUSBAND, AND WHICH WAS THEIR
MATRIMONIAL HOME,
OCCUPIES A POSITION
AKIN TO THAT OF AN HEIR OF THE TENANT-HUSBAND IF THE RIGHT TO RESIDENCE OF SUCH
WIFE HAS NOT COME TO AN END. THE TENANT HAVING LOST INTEREST IN PROTECTING HIS
TENANCY RIGHTS AS AVAILABLE TO HIM UNDER THE LAW, THE SAME RIGHT WOULD DEVOLVE
UPON AND INHERE IN THE WIFE SO LONG AS SHE CONTINUES IN OCCUPATION OF THE
PREMISES. HER RIGHTS AND OBLIGATIONS SHALL NOT BE HIGHER OR LARGER THAN THOSE OF
THE TENANT HIMSELF. A SUITABLE AMENDMENT IN THE LEGISLATION IS CALLED FOR TO
THAT EFFECT. AND, SO LONG AS THAT IS NOT DONE, WE, RESPONDING TO THE DEMANDS OF
SOCIAL AND GENDER JUSTICE, NEED TO MOULD THE RELIEF AND DO COMPLETE JUSTICE BY
EXERCISING OUR JURISDICTION UNDER ARTICLE 142 OF THE CONSTITUTION. WE HASTEN TO
ADD THAT THE PURPOSE OF OUR HOLDING AS ABOVE IS TO GIVE THE WIFE'S RIGHT TO
RESIDENCE A MEANINGFUL EFFICACY AS DICTATED BY THE NEEDS OF THE TIMES; WE DO NOT
INTEND NOR DO WE PROPOSE THE LANDLORD'S RIGHT TO EVICTION AGAINST HIS TENANT TO
BE SUBORDINATED TO
WIFE'S RIGHT TO
RESIDENCE ENFORCEABLE AGAINST HER HUSBAND. LET BOTH THE RIGHTS CO-EXIST SO LONG
AS THEY CAN. SO FAR AS A DESERTED WIFE, WHOSE STATUS AS WIFE HAS NOT COME TO AN
END BY A DECREE OF DIVORCE OR BY DECREE FOR ANNULMENT OF MARRIAGE, IS CONCERNED,
WE HAVE MADE THE POSITION OF LAW CLEAR AS ABOVE. HOWEVER, THE CASE OF A DIVORCED
WIFE STANDS ON A LITTLE DIFFERENT FOOTING. DIVORCE IS TERMINATION OF MATRIMONIAL
RELATIONSHIP AND BRINGS TO AN END THE STATUS OF WIFE AS SUCH. WHETHER OR NOT SHE
HAS THE RIGHT OF RESIDENCE IN THE MATRIMONIAL HOME, WOULD DEPEND ON THE TERMS
AND CONDITIONS IN WHICH THE DECREE OF DIVORCE HAS BEEN GRANTED AND PROVISION FOR
MAINTENANCE (INCLUDING RESIDENCE) HAS BEEN MADE. IN THE EVENT OF THE PROVISION
FOR RESIDENCE OF A DIVORCED WIFE HAVING BEEN MADE BY THE HUSBAND IN THE
MATRIMONIAL HOME SITUATED IN THE TENANTED PREMISES, SUCH DIVORCED WIFE TOO WOULD
BE ENTITLED TO DEFEND, IN THE EVICTION PROCEEDINGS, THE TENANCY RIGHTS AND
RIGHTS OF
OCCUPATION THEREUNDER
IN THE SAME MANNER IN WHICH THE HUSBAND-TENANT COULD HAVE DONE AND CERTAINLY NOT
HIGHER OR LARGER THAN THAT. SHE WOULD BE LIABLE TO BE EVICTED IN THE SAME MANNER
IN WHICH HER HUSBAND AS TENANT WOULD HAVE BEEN LIABLE TO BE EVICTED. THIS
INDICATES THAT THE RIGHT OF RESIDENCE IS A PART OF THE RIGHT TO MAINTENANCE AND
IN WHICH CASE IN THE ABSENCE OF AN ORDER BY THE MATRIMONIAL COURT IN THE
PROCEEDINGS FOR DIVORCE, SHE WOULD NOT BE ABLE TO SET UP A CLAIM IN RESPECT OF
THE HOUSE EVEN AS AGAINST HER HUSBAND, LEAVE ALONE THE LANDLORD OF HER HUSBAND.
WE HAVE DEALT WITH ALL THE ABOVESAID ASPECTS OF THE LAW AS IT WAS URGED ON
BEHALF OF THE LANDLORD __ RESPONDENT NO. 1 THAT SMT. ACHALA, THE APPELLANT HAS
NO RIGHT TO CONTEST OR DEFEND HERSELF IN THESE PROCEEDINGS NOR A RIGHT TO FILE
AND PROSECUTE THIS APPEAL AS THERE IS NO PRIVITY OF CONTRACT BETWEEN THE
APPELLANT AND LANDLORD AND THE APPELLANT IS NEITHER A TENANT NOR SO RECOGNIZED
EVER BY THE RESPONDENT NO. 1 __
LANDLORD. WE
CANNOT AGREE. WE FEEL THAT THE APPELLANT WAS RIGHTLY ___ IN THE FACTS AND
CIRCUMSTANCES OF THE CASE ___ PERMITTED BY THE HIGH COURT TO BE JOINED AS A
PARTY TO THE PROCEEDINGS. SHE WAS ALSO RIGHTLY ALLOWED TO CONTEST THE SUIT AND
DEPOSIT THE RENT IN THE COURT FOR PAYMENT TO LANDLORD FOR AND ON BEHALF OF THE
TENANT-HUSBAND. IN THE PRESENT CASE, IT IS ADMITTED BY THE APPELLANT THAT ON
3.12.1998, THAT IS, DURING THE PENDENCY OF THESE PROCEEDINGS AND WHILE THE
MATTER WAS PENDING IN THE HIGH COURT A DECREE FOR DISSOLUTION OF MARRIAGE BY
DIVORCE BASED ON MUTUAL CONSENT HAS BEEN PASSED. THE TERMS AND CONDITIONS OF
SUCH SETTLEMENT HAVE NOT BEEN BROUGHT ON RECORD BY THE APPELLANT WHICH SHE OUGHT
TO HAVE DONE. IT IS NOT THE CASE OF SMT. ACHALA, THE APPELLANT THAT SHE IS
ENTITLED TO CONTINUE HER RESIDENCE IN THE TENANTED PREMISES BY VIRTUE OF AN
OBLIGATION INCURRED BY HER HUSBAND TO PROVIDE RESIDENCE FOR HER AS A PART OF
MAINTENANCE. SHE CANNOT, THEREFORE, BE
ALLOWED TO
PROSECUTE THE APPEAL AND DEFEND HER RIGHT AGAINST THE CLAIM FOR EVICTION MADE BY
THE LANDLORD. C. TRANSFER OF PROPERTY ACT, 1882 - SS. 108 AND 105 - PROPERTY LAW
- TENANCY - KARNATAKA RENT CONTROL ACT, 1961 (22 OF 1961), S. 21 - CIVIL
PROCEDURE CODE, 1908 - OR. 1 RR. 3, 9 & 10 - LANDLORD-TENANT LITIGATION - WHO
CAN BE JOINED UNDER SECTION 30 OF THE ACT ONCE THE INTEREST OF THE TENANT IN ANY
PREMISES HAS BEEN DETERMINED AND ORDER FOR RECOVERY OF POSSESSION HAS BEEN MADE
BY THE COURT THE SAME IS BINDING ON ALL PERSONS WHO MAY BE IN OCCUPATION OF THE
PREMISES AND VACANT POSSESSION OF THE PREMISES HAS TO BE GIVEN TO THE LANDLORD
BY EVICTING THE TENANT AND ALL PERSONS IN OCCUPATION OF THE PREMISES EXCEPTING
THOSE WHO HAVE ANY INDEPENDENT TITLE TO SUCH PREMISES. THE TERM 'FAMILY' HAS
BEEN DEFINED IN CLAUSE (FF) OF SECTION 3 OF THE ACT AS ___ "3. (FF) 'FAMILY' IN
RELATION TO A PERSON MEANS THE WIFE OR HUSBAND OF SUCH PERSON AND HIS OR HER
DEPENDENT
CHILDREN". ONCE THE PREMISES ARE TAKEN ON LEASE BY ANY INDIVIDUAL AS TENANT HE
IS ENTITLED TO EXERCISE ALL SUCH RIGHTS AND IS SUBJECT TO ALL SUCH OBLIGATIONS
QUA THE LANDLORD AS ARE REFERABLE TO A LESSEE UNDER THE LAW.. YET, THE TENANT IN
WHOSE NAME THE TENANCY HAS BEEN CREATED IS NOT THE ONLY ONE WHO IS ENTITLED TO
LIVE IN THE RESIDENTIAL PREMISES; HE HAS A RIGHT TO LIVE THEREIN WITH HIS FAMILY
WHEREIN IS INCLUDED THE SPOUSE. IN ANY LITIGATION, BASED ON LANDLORD-TENANT
RELATIONSHIP, WHEN THE TENANT ENTERS UPON DEFENCE, HE DOES SO NOT ONLY FOR
HIMSELF BUT ALSO FOR PROTECTING THE INTEREST OF HIS FAMILY AS ITS MEMBERS DO
LIVE AND ARE ENTITLED TO LIVE WITH HIM, BECAUSE IN THE EVENT OF AN ORDER FOR
EVICTION BEING MADE IT IS NOT ONLY THE TENANT BUT ALSO HIS FAMILY MEMBERS WHO
SHALL BE LIABLE TO BE EVICTED FROM THE TENANCY PREMISES ALONG WITH HIM. THE
POSITION OF LAW WHICH EMERGES ON A CONJOINT READING OF THE RENT CONTROL
LEGISLATION AND PERSONAL LAWS PROVIDING
FOR RIGHT
TO MAINTENANCE- -- WHICH WILL INCLUDE THE RIGHT TO RESIDENCE OF A WIFE,
INCLUDING A DESERTED OR DIVORCED WIFE, MAY BE EXAMINED. THE RENT CONTROL LAW
MAKES PROVISION FOR PROTECTION OF THE TENANT NOT ONLY FOR HIS OWN BENEFIT BUT
ALSO FOR THE BENEFIT OF ALL THOSE RESIDING OR ENTITLED TO RESIDE WITH HIM OR FOR
WHOSE RESIDENCE HE MUST PROVIDE FOR. A DECREE OR ORDER FOR EVICTION WOULD
DEPRIVE NOT ONLY THE TENANT OF SUCH PROTECTION BUT MEMBERS OF HIS FAMILY
(INCLUDING THE SPOUSE) WILL ALSO SUFFER EVICTION. SO LONG AS THE TENANT DEFENDS
HIMSELF, THE INTEREST OF HIS FAMILY MEMBERS MERGES WITH THAT OF THE TENANT AND
THEY TOO ARE PROTECTED. THE TENANT CANNOT, BY COLLUSION OR BY DELIBERATE
PREJUDICIAL ACT, GIVE UP THE PROTECTION OF LAW TO THE DETRIMENT OF HIS FAMILY
MEMBERS. SO LONG AS A DECREE FOR EVICTION HAS NOT BEEN PASSED THE MEMBERS OF THE
FAMILY ARE ENTITLED TO COME TO THE COURT AND SEEK LEAVE TO DEFEND AND THEREBY
CONTEST THE PROCEEDINGS AND SUCH LEAVE MAY
BE GRANTED BY THE
COURT IF THE COURT IS SATISFIED THAT THE TENANT WAS NOT DEFENDING ___ BY
COLLUSION, CONNIVANCE OR NEGLECT ___ OR WAS ACTING TO THE DETRIMENT OF SUCH
PERSONS. SUCH A SITUATION WOULD BE RARE AND THE COURT SHALL ALWAYS BE ON ITS
GUARD IN ENTERTAINING ANY SUCH PRAYER. BUT THE EXISTENCE OF SUCH A RIGHT FLOWS
FROM WHAT HAS BEEN STATED HEREINABOVE AND MUST BE RECOGNIZED. PERSONS RESIDING
WITH THE TENANT AS MEMBERS OF HIS FAMILY WOULD OBVIOUSLY BE AWARE OF THE
LITIGATION AND, THEREFORE, IT WILL BE FOR THEM TO ACT DILIGENTLY AND APPROACH
THE COURT PROMPTLY AND IN ANY CASE BEFORE THE DECREE OF EVICTION IS PASSED AS
DELAY DEFEATS EQUITY. SUCH A PRAYER OR ANY DISPUTE SOUGHT TO BE RAISED
POST-DECREE BY A MEMBER OF FAMILY OF THE TENANT MAY NOT BE ENTERTAINED BY THE
COURT. D. HINDU LAW - MAINTENANCE - SCOPE -HINDU ADOPTIONS AND MAINTENANCE ACT,
1956, S. 18 R/W S. 3(B) - HINDU MARRIAGE ACT, 1955, SS. 25, 24 AND 27 - CRIMINAL
PROCEDURE CODE, 1973, SS. 125 AND 127 -
DIVORCE ACT, 1869,
S. 37 - PARS! MARRIAGE AND DIVORCE ACT, 1936, SS. 40, 39 AND 42 - SPECIAL
MARRIAGE ACT, 1954, SS. 37 AND 36 - MUSLIM LAW - MAINTENANCE - FAMILY COURTS
ACT, 1984, S. 7(1) EXPLN. (F) HAVING SAID SO GENERALLY, WE MAY NOW DEAL WITH THE
RIGHT OF A WIFE TO RESIDE IN THE MATRIMONIAL HOME UNDER PERSONAL LAWS. IN THE
FACTUAL CONTEXT OF THE PRESENT CASE, WE ARE CONFINING OURSELVES TO DEALING WITH
THE PERSONAL LAW AS APPLICABLE TO HINDUS AS THE PARTIES ARE SO. A HINDU WIFE IS
ENTITLED TO BE MAINTAINED BY HER HUSBAND. SHE IS ENTITLED TO REMAIN UNDER HIS
ROOF AND PROTECTION. SHE IS ALSO ENTITLED TO SEPARATE RESIDENCE IF BY REASON OF
THE HUSBAND'S CONDUCT OR BY HIS REFUSAL TO MAINTAIN HER IN HIS OWN PLACE OF
RESIDENCE OR FOR OTHER JUST CAUSE SHE IS COMPELLED TO LIVE APART FROM HIM. RIGHT
TO RESIDENCE IS A PART AND PARCEL OF WIFE'S RIGHT TO MAINTENANCE. THE RIGHT TO
MAINTENANCE CANNOT BE DEFEATED BY THE HUSBAND EXECUTING A WILL TO DEFEAT SUCH A
RIGHT. (SEE: MULLA,
PRINCIPLES OF
HINDU LAW, VOL. I, 18TH ED. 2001, PARAS 554 AND 555) THE RIGHT HAS COME TO BE
STATUTORILY RECOGNIZED WITH THE ENACTMENT OF THE HINDU ADOPTION AND MAINTENANCE
ACT, 1956. SECTION 18 OF THE ACT PROVIDES FOR MAINTENANCE OF WIFE. MAINTENANCE
HAS BEEN SO DEFINED IN CLAUSE (B) OF SECTION 3 OF THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956 AS TO INCLUDE THEREIN PROVISION FOR RESIDENCE AMONGST
OTHER THINGS. FOR THE PURPOSE OF MAINTENANCE THE TERM 'WIFE' INCLUDES A DIVORCED
WIFE. THE HINDU MARRIAGE ACT PROVIDES FOR DIVORCE. SECTION 15 INDICATES WHEN
DIVORCED PERSONS MAY MARRY AGAIN. SECTION 25 ENABLES THE COURT TO PASS AN ORDER
FOR PROVIDING ALIMONY AND MAINTENANCE IN FAVOUR OF THE DIVORCED WIFE. SECTION 27
ENABLES THE COURT TO MAKE PROVISIONS IN THE DECREE IN RESPECT OF A PROPERTY THAT
MAY BELONG TO THE WIFE OR TO BOTH. ON THE STATUS OF WIFE BEING TERMINATED BY A
DECREE FOR DIVORCE UNDER THE HINDU MARRIAGE ACT, THE RIGHTS OF THE DIVORCED WIFE
SEEM TO BE CRIBBED,
CONFINED AND
CABINED BY THE PROVISIONS OF THE HINDU MARRIAGE ACT AND TO THE RIGHTS AVAILABLE
UNDER SECTIONS 25 AND 27 OF THE ACT. IN THE PRESENT CASE, IT IS ADMITTED BY THE
APPELLANT THAT ON 3.12.1998, THAT IS, DURING THE PENDENCY OF THESE PROCEEDINGS
AND WHILE THE MATTER WAS PENDING IN THE HIGH COURT A DECREE FOR DISSOLUTION OF
MARRIAGE BY DIVORCE BASED ON MUTUAL CONSENT HAS BEEN PASSED. THE TERMS AND
CONDITIONS OF SUCH SETTLEMENT HAVE NOT BEEN BROUGHT ON RECORD BY THE APPELLANT
WHICH SHE OUGHT TO HAVE DONE. IT IS NOT THE CASE OF SMT. ACHALA, THE APPELLANT
THAT SHE IS ENTITLED TO CONTINUE HER RESIDENCE IN THE TENANTED PREMISES BY
VIRTUE OF AN OBLIGATION INCURRED BY HER HUSBAND TO PROVIDE RESIDENCE FOR HER AS
A PART OF MAINTENANCE. SHE CANNOT, THEREFORE, BE ALLOWED TO PROSECUTE THE APPEAL
AND DEFEND HER RIGHT AGAINST THE CLAIM FOR EVICTION MADE BY THE LANDLORD. E,
HINDU LAW - MAINTENANCE - MAINTENANCE OF WIFE - NATURE AND SOURCE OF RIGHT TO -
IT HAS BEEN HELD IN
INDIA
THAT RIGHT TO MAINTENANCE ARISES OUT OF THE STATUS AS A WIFE AND NOT BY WAY OF A
CONTRACT OR OTHERWISE. IN SRI RAJA BOMMADEVARA RAJA LAKSHMI DEVI AMMA GARU V.
SRI RAJA B. NAGANNA NAIDU BAHADUR ZAMINDAR GARU AND ANOTHER, AIR 1925 MADRAS
757, SPECNCER, OFFICIATING CJ, STATED: "THE OBLIGATION OF A HUSBAND TO MAINTAIN
HIS WIFE IS DESCRIBED, AS ONE ARISING OUT OF THE STATUS OF MARRIAGE. IT IS A
LIABILITY CREATED BY THE HINDU LAW IN RESPECT OF THE JURAL RELATIONS OF THE
HINDU FAMILY. WHEN THERE IS NO CONTRACT BETWEEN THE PARTIES TO A MARRIAGE, AS
AMONG HINDUS, A SUIT FOR MAINTENANCE IS NOT A SUIT BASED UPON CONTRACT, BUT IT
IS A SUIT ARISING OUT OF A CIVIL RELATION RESEMBLING THAT OF A CONTRACT, WHICH
IS SPECIALLY PROVIDED FOR IN ARTICLE 128 OF THE LIMITATION ACT". (HEAD NOTE) IN
UNNAMALAI AMMAL V. F.W. WILSON AND OTHERS, AIR 1927 MADRAS 1187, IT WAS STATED
THAT THE MAINTENANCE OF A WIFE BY A HUSBAND IS A PERSONAL OBLIGATION UPON HIM
ARISING FROM THE EXISTENCE
OF THE
RELATIONS. IN P.. SURIYANARAYANA RAO NAIDU V. P. BALASUBRAMANIA MUDALI & ORS..,
ILR 43 MADRAS 635, IT WAS HELD THAT AN AUCTION PURCHASER OF AN ANCESTRAL HOUSE
SOLD IN EXECUTION OF A MONEY DECREE PASSED ON A PERSONAL DEBT OF THE MOTHER WHO
INHERITED THE PROPERTY AS HEIR TO HER SON, IS NOT ENTITLED TO OUST THE UNMARRIED
SISTERS OF THE LATTER, WHO RESIDE IN THE HOUSE. THE BOMBAY HIGH COURT IN BAI
APPIBAI V. KHIMJI COOVERJI, AIR 1936 BOMBAY 138, HELD THAT UNDER THE HINDU LAW,
THE RIGHT OF A WIFE TO MAINTENANCE IS A MATTER OF PERSONAL OBLIGATION ON THE
HUSBAND. IT RESTS ON THE RELATIONS ARISING FROM THE MARRIAGE AND IS NOT
DEPENDENT ON OR QUALIFIED BY A REFERENCE TO THE POSSESSION OF ANY PROPERTY BY
THE HUSBAND. IN GANGA BAI V. JANKI BAI, ILR 45 BOMBAY 337, IT WAS HELD:- "UNDER
HINDU LAW, A WIDOW CANNOT ASSERT HER RIGHT OF RESIDENCE IN A HOUSE WHICH HAS
BEEN SOLD BY HER HUSBAND DURING HIS LIFE TIME, UNLESS A CHARGE IS CREATED IN HER
FAVOUR PRIOR TO THE SALE.
THE RIGHT
WHICH A HINDU WIFE HAS DURING HER HUSBAND'S LIFE TIME IS A MATTER OF PERSONAL
OBLIGATION ARISING FROM THE VERY EXISTENCE OF THE RELATION AND QUITE INDEPENDENT
OF THE POSSESSION BY THE HUSBAND OF ANY PROPERTY, ANCESTRAL OR SELF ACQUIRED."
(HEAD NOTE) SECTION 18 OF THE HINDU ADOPTION AND MAINTENANCE ACT CONFERS A RIGHT
ON A WIFE TO BE MAINTAINED BY HER HUSBAND DURING HER LIFE TIME. ACCORDING TO
MULLA, THE RIGHT OF A WIFE FOR MAINTENANCE IS AN INCIDENT OF THE STATUS OR
ESTATE OF MATRIMONY AND A HINDU IS UNDER A LEGAL OBLIGATION TO MAINTAIN HIS
WIFE. (SEE: MULLA, IBID, PP 454-455) F. JUDICIAL ACTIVISM - WHEN CALLED FOR -
HART'S "OPEN TEXTURE OF LAW" - HELD, AN UNUSUAL FACT SITUATION POSING ISSUES FOR
RESOLUTION IS AN OPPORTUNITY FOR INNOVATION - LAW AS ADMINISTERED BY COURTS,
TRANSFORMS INTO JUSTICE - JURISPRUDENCE - CONSTITUTION OF INDIA - ARTS. 136, 32,
142 AND 226 - JUDICIAL ACTIVISM UNUSUAL FACT SITUATION POSING ISSUES FOR
RESOLUTION IS AN
OPPORTUNITY FOR INNOVATION. LAW, AS ADMINISTERED BY COURTS, TRANSFORMS INTO
JUSTICE. "THE DEFINITION OF JUSTICE MENTIONED IN JUSTINIAN'S CORPUS JURIS
CIVILIS (ADOPTED FROM THE ROMAN JURIST ULPIAN) STATES 'JUSTICE IS CONSTANT AND
PERPETUAL WILL TO RENDER TO EVERYONE THAT TO WHICH HE IS ENTITLED.' SIMILARLY,
CICERO DESCRIBED JUSTICE AS 'THE DISPOSITION OF THE HUMAN MIND TO RENDER
EVERYONE HIS DUE'." THE LAW DOES NOT REMAIN STATIC. IT DOES NOT OPERATE IN A
VACUUM. AS SOCIAL NORMS AND VALUES CHANGE, LAWS TOO HAVE TO BE RE-INTERPRETED,
AND RECAST. LAW IS REALLY A DYNAMIC INSTRUMENT FASHIONED BY SOCIETY FOR THE
PURPOSES OF ACHIEVING HARMONIOUS ADJUSTMENT, HUMAN RELATIONS BY ELIMINATION OF
SOCIAL TENSIONS AND CONFLICTS. LORD DENNING ONCE SAID: "LAW DOES NOT STANDSTILL;
IT MOVES CONTINUOUSLY. ONCE THIS IS RECOGNIZED, THEN THE TASK OF A JUDGE IS PUT
ON A HIGHER PLAIN. HE MUST CONSCIOUSLY SEEK TO MOULD THE LAW SO AS TO SERVE THE
NEEDS OF THE TIME." G.
JURISPRUDENCE - NATURE OF LAW - EMPIRICAL NATURE AND TEMPORAL CHANGEABILITY OF
LAW H. JURISPRUDENCE - CONCEPTS OF LAW - LAW AS A REGULATOR OF HUMAN RELATIONS -
LAW AS DYNAMIC INSTRUMENT FOR ACHIEVING HARMONIOUS ADJUSTMENT OF HUMAN RELATIONS
BY ELIMINATION OF SOCIAL TENSIONS AND CONFLICTS, POSITED Judgement: R.C. Lahoti,
C.J.

Deb Narayan Halder v. Anushree Halder. Citation: 2003-AIR(SC) -3174. , Judges:

B. P. SINGH, J. BENCH: N. SANTOSH HEGDE AND B. P. SINGH, J. Enactment: Criminal
P.C.. (2 of 1974), S.401. Evidence Act (1 of 1872), S.146. Criminal P.C. (2 of
1974), S.125 Judgement Date: 26/08/2003 JUDGEMENT: B. P. SINGH, J. :- Leave
granted. 2. The appellant herein is the husband of the respondent. He has
preferred this appeal against the judgment and order of the High Court of
Judicature at Calcutta in C. R. R. No. 973 of 2001, dated 26-11-2001 whereby the
High Court while allowing the Revision Petition preferred by the respondent
directed the appellant to pay a sum of Rs. 1500/- per month by way of
maintenance to the respondent and also to pay costs of Rs. 2000/-. While doing
so it set aside the order of the Judicial Magistrate, First Class, Sealdah dated
15-12-2000 passed on the application filed by the respondent under Section 125,
Cr. P.C.
insofar as the learned Magistrate refused the prayer of the respondent for grant
of maintenance to her. The learned Magistrate, however, had directed the
appellant to pay a sum of Rs. 1500/- per month for the maintenance of his son
who was residing with the respondent. 3. It is not in dispute that the appellant
and the respondent got married on 24th February, 1985. A son was born to them on
14th January, 1987. They continued to live together for many years at different
places around the city of Calcutta. On 11th March, 1997, the respondent left her
matrimonial home along with her son and came to reside with her parents in
Calcutta. According to her, she was tortured over the years by the appellant and
ultimately on 11th March, 1997, the appellant forced her to leave her
matrimonial home and threatened her with dire consequences if she did not do so.
For fear of her life and the life of her son she was compelled to leave the
matrimonial home on that day.
Only 4 days
later, on 15th March, 1997, she filed an application under Section 125, Cr. P.
C. claiming maintenance for herself and her son. 4. In her application the
respondent alleged that within 15 days of the marriage the appellant started
torturing her both mentally and physically on account of the fact that the
appellant was not satisfied with the meagre dowry brought by her and also on
account of the fact that her appearance appeared to the appellant to be ugly.
According to the respondent, the appellant is quarrelsome by nature and he had
the habit of causing annoyance and disturbances to her for petty reasons. He did
not give her the respect due to a wife and treated her like a maid servant. She
tolerated the cruel treatment meted out to her for many years but ultimately
when she was threatened on 11th March, 1997 by her husband, she had no option
but to leave her matrimonial home out of fear. She was thereafter forced to live
with her parents. She further
stated that her
husband was a Bank employee drawing a salary of about eight to ten thousand
rupees per month while she had no source of income. She, therefore, claimed a
sum of Rs. 1500 each by way of maintenance for herself and for her son, and also
claimed costs. 5. In reply, the appellant stated that he had not demanded any
dowry at the time of marriage nor was any dowry given. Some gifts were no doubt
given to him as well as his wife which were in the custody of his wife. He did
not torture her nor did he ever misbehave with her for the reason that she had
brought a meagre dowry or that she was not good looking or for any other reason.
However, since May, 1996 his mother-in-law as well as his wife started insisting
that he should shift his residence to Calcutta. They picked up a quarrel with
him on this issue and in the process they even abused him. The brother of the
respondent and some others who had come to his house assaulted him, which
compelled the appellant
to lodge a report
with the police. After lodging of the report the behaviour of his wife and
mother-in-law became worse, so much so that the respondent had mixed some
poisonous substance in his drinking water after consuming which the appellant
fell ill. He had lodged a General Diary Entry No. 207/97 at the local police
station. He denied the allegations made in the application and stated that on
11th February, 1997, the respondent had gone away with her mother along with her
son and came back only on 16th February, 1997. They were still insisting on the
appellant shifting to Calcutta and on his refusal to do so he was assaulted for
which he had lodged a complaint at the local police station. On 11th March,
1997, the respondent with her son left on her own after their son completed his
school examination on that day. She left the home without his consent and during
his absence. She did so on her own without any justifiable cause and only to
compel him to shift his
residence to Calcutta. He
was still willing to live with her. 6. Before the learned Magistrate the
respondent examined three witnesses namely, herself PW-1, her mother as PW-2 and
a Bank employee PW-3. On the other hand, apart from examining himself as OP W-1,
the appellant examined eight other witnesses to prove that he had never treated
the respondent with cruelty, and also to prove the complaints lodged with the
police and some letters. 7. The learned Magistrate after examining the evidence
on record came to record the following findings:- 1. There is no evidence to
prove that the appellant ever demanded dowry from the parents of the respondent
before marriage or even after marriage. Even PW-1 did not state that he had ever
demanded dowry but only stated that he was not happy with the gifts given. Even
her mother, PW-2 had to admit that the appellant never demanded dowry but added
that he expected dowry. The case, therefore, set up by the respondent that on
account of meagre
dowry the
respondent was being harassed was not true. There was not an iota of evidence of
the fact that the appellant had at any stage even after his marriage demanded
any specific article which was not given to him as a result of which he had
started torturing his wife. No letter was produced to prove that the respondent
ever wrote to anyone in the course of twelve years complaining about the
ill-treatment given by the appellant. 2. Though in the complaint the respondent
alleged that the appellant started torturing her within 15 days of their
marriage, according to PW-2, the mother of the respondent, she came to know
about the ill-treatment of his daughter 5 to 6 years after the marriage. On the
other hand in her complaint to the police Ex.. 1, PW-1 stated that she told her
parents about her being tortured by the appellant 8 years after the marriage.
All this shows that the allegations made by the respondent about her
ill-treatment at the hands of the appellant
was not true. 3.
Though the evidence disclosed that the parties lived at different places around
Calcutta during the period of twelve years after marriage, no witness was
examined by the respondent to prove that she had been subjected to torture and
cruelty at the hands of the appellant. 4. As regards the second reason namely,
the ugly appearance of the respondent, though such an allegation was made in the
complaint, in the course of her deposition the respondent did not utter one word
in support of the said allegation. Even in the police report lodged by her,
there is no allegation that she was being ill-treated because of her ugly
appearance. 5. There is no evidence to suggest that in view of their strained
relationship any effort was made by the parents or other relatives to settle
their dispute and to effect a conciliation. It appeared that the father had no
say in the matter, and he was not even examined as a witness to support the case
of the respondent. 6. Though
the
respondent asserted that she had made several complaints to the police regarding
her ill treatment by the appellant no such report was proved. The only report
proved, Ex. 1 was lodged after the respondent had left the matrimonial home. 7.
Even the testimony of the respondent proves that they regularly visited hill
stations and other places of interest on holiday trips, sometimes accompanied by
the relatives of the respondent. She also admitted that the respondent while
talking to others used to give credit to the respondent for the good performance
of their son in his studies. She also admitted that she completed her B.A. after
marriage while living with the appellant. These facts disclosed a normal marital
relationship and the allegations of torture and harassment did not appear to be
true. 8. In view of these findings the learned Magistrate came to conclusion
that the respondent had left her matrimonial home on her own and that she was
not compelled by
the appellant
to leave her matrimonial home, nor had he threatened the respondent with dire
consequences if she did not leave his house. There was no ground for the
respondent to apprehend that if she lived with the appellant her life would be
in danger and that she will be subjected to torture or cruelty. In sum and
substance she had no justifiable reason to desert the appellant. The fact that
the application for grant of maintenance was filed within four days of her
leaving her matrimonial home without any effort for reconciliation, was also
significant. The learned Magistrate, therefore, held that the respondent having
left her matrimonial home without any justifiable ground was not entitled to the
grant of maintenance. However, since her son was residing with her, the
appellant was liable to pay maintenance for his son. He, therefore, ordered that
the appellant shall pay a sum of rupees 1500 per month by way of maintenance to
his son. 9.. Aggrieved by the order of
the learned
Magistrate the respondent preferred a Revision Petition before the High Court of
Calcutta. A learned Judge of the High Court by his order dated 26th November,
2001 allowed the Revision Petition and directed the appellant to pay a sum of
Rs. 1500/- per month to the respondent also for her maintenance from the date of
filing of the maintenance case and also awarded costs. The judgment and order of
the High Court leaves much to be desired. The sole virtue of the judgment
appears to be its brevity. The learned Judge allowed the Revision Application
and set aside the order of the learned Magistrate without even noticing the
findings recorded by the Magistrate, nor is there any discussion in the judgment
of the evidence on record. The only relevant observation in the judgment is the
following:- "I have perused the evidence of P.W. 1 (the Petitioner herself) and
the evidence of PW-2, her Mother and I find that the Petitioner could prove her
case quite properly.
It transpires
from the said evidence that the Petitioner had sufficient reason for staying
away from her matrimonial home as she was subjected to torture and neglect. On
the contrary, the evidence of the Opposite Party was a feeble attempt to ward
off the allegations made against him and were not quite convincing.. The
evidence of O.P.W. No. 2 who went to make payment pursuant to the directions of
O.P.W. No. 1 does not also appear to be quite convincing. The evidence of O.P.W.
No. 3 in whose house the Opposite Party has been residing was the Father of his
friend further appears to have been tuned to suit the case of the Opposite
Party. So, also the evidence of Opposite Party No.4. Accordingly, I am of the
view that the finding of the learned Magistrate refusing the prayer of the
Petitioner for maintenance cannot stand and she is entitled to an order of
maintenance as otherwise she has been able to prove her case and the finding of
the learned Magistrate that she "has
left the house of
O.P. without any just ground and has not been succeeded to establish the
apprehension of danger to her life, she is not entitled to get maintenance from
the O.P." cannot be accepted." 10. The appellant has impugned the aforesaid
judgment of the High Court before us. We had summoned the parties to explore the
possibility of a conciliation but counsel for the parties informed us that the
respondent was not willing to live with the appellant. 11. Learned counsel for
the appellant submitted before us, and with justification, that the judgment and
order of the High Court does not disclose application of mind to the evidence on
record, or to the findings recorded by the trial Court, which were sought to be
set aside by the impugned judgment and order.. The finding of the High Court is
as vague as it can be and it is not possible to cull out the reasons which
persuaded the learned Judge to set aside the findings recorded by the trial
Court. We have earlier
quoted the relevant
part of the judgment which justifies the criticism of the learned counsel. It is
well settled that the Appellate or Revisional Court while setting aside the
findings recorded by the Court below must notice those findings, and if the
Appellate or Revisional Court comes to the conclusion that the findings recorded
by the trial Court are untenable, record its reasons for coming to the said
conclusion. Where the findings are findings of fact it must discuss the evidence
on record which justify the reversal of the findings recorded by the Court
below. This is particularly so when findings recorded by the trial Court are
sought to be set aside by an Appellate or Revisional Court. One cannot take
exception to a judgment merely on the ground of its brevity, but if the judgment
appears to be cryptic and conclusions are reached without even referring to the
evidence on record or noticing the findings of the trial Court, the party
aggrieved is entitled to ask for
setting aside of
such a judgment. In normal course we would have remanded the matter to the High
Court for a fresh consideration of the evidence on record, but having regard to
the nature of the dispute, we do not consider it necessary to prolong the
proceeding any further, particularly when the evidence has been placed before
us, and with the assistance of counsel appearing for the parties we have gone
through the evidence on record. We, therefore, proceed to consider the evidence
on record and dispose of the matter finally. 12. The respondent was examined as
PW-1. In her deposition, she stated that within 15 to 20 days of the marriage
the appellant started ill-treating her without any reason and even went to the
extent of slapping and kicking her. This was because the articles gifted to them
were not to his liking and he needed more. He used to quarrel with her for petty
reasons and assaulted her on many occasions even though he did not arrange for
her food and
clothing. Many a times
he drove her away from his house after assaulting her and she used to come to
her father's house for shelter. However, her parents used to persuade her to go
back to the appellant. All this her husband did because of greed. She referred
to the police reports that she lodged, but they were not produced before the
Court. She admitted that the appellant had taken an agency of Unit Trust of
India in her name and for that purpose he had a joint account with her in the
bank. 13. We may only notice at this stage that there is not even a whisper by
the respondent about the second ground mentioned in the application namely that
the appellant disliked her on account of her ugly appearance. She has referred
to a few incidents which resulted in her lodging reports before the police and
her treatment in a hospital, but no evidence was produced to prove such facts
nor have the particulars been mentioned by her. She, however, admitted that she
passed her B.A. after her
marriage
while she was living with her husband. She also admitted that she and her
husband often went to different places such as Shimla, Nainital, Kousani etc..
every two years. Some photographs were shown to her from which it appeared that
on some occasions her elder sister and brother-in-law accompanied them. She also
admitted in the course of her cross-examination that her husband used to praise
her before others and give her credit for the good performance of her son in
studies. He used to say that their son performed well because of the care
bestowed by her. She also admitted that she attended Yoga classes while at Dum
Dum. She also admitted that when she was taking the B.A. examination her husband
used to accompany her to the examination centre. She stated in her deposition
that she was often assaulted and was made to leave the matrimonial home and had
to seek shelter in the house of her parents but she has not stated when she
first informed her parents
about such behaviour
of the appellant. There is only some indication in the complaint Ex. 1 lodged by
her after she left her matrimonial home wherein she had stated that she had told
her parents about the behaviour of the appellant about eight years after her
marriage. According to PW-2, her mother, the respondent had told her about such
facts some 5 to 6 years after marriage. No letter written by the respondent to
anyone has been produced to prove that she had ever complained to anyone about
her ill treatment. In substance there is no evidence of contemporaneous nature
to substantiate the allegations regarding ill treatment of the respondent. The
only complaint which has been brought on record is the General Diary Entry Ex. 1
recorded on 12th March, 1997, that is, after she left her matrimonial home. 14.
PW-2, the mother of the respondent deposed in support of the application. She
also stated that her son-in-law, namely the appellant, was not satisfied with
the items gifted
at the time of
marriage since these were not to his liking and that is why he tortured her
daughter who had told her about such incidents. She, however, admitted that it
was only 5 or 6 years after the marriage that she came to know that her daughter
was being tortured. It appears rather surprising that if such occurrences took
place at regular intervals, and started within 15 days of the marriage, the
mother of the respondent would have come to know about it 5 or 6 years after the
marriage. However, in the General Diary Entry got recorded by PW-1 she had
stated that she told her mother about such occurrences eight years after their
marriage. There is nothing in the evidence of PW-2 to support the case that the
appellant ever demanded dowry. On the other hand PW-2 admitted that the
appellant never demanded any dowry even after marriage, but added that though he
never made any demand it was in his mind. From the evidence on record it appears
that the gifts given at the
time of marriage
were the usual gifts which are given on such occasions such as bed, almirah,
dressing table, watch, tape recorder and ornaments for the bride. There is no
evidence whatsoever on record to suggest that before the marriage, at the stage
of negotiations, any demand was made or any particular amount or thing was asked
for by the appellant. 15. On the other hand the appellant has examined himself
as OPW-1 and denied all the allegations made against him. He asserted that he
had never demanded any dowry at the time of marriage or thereafter. In fact his
relatives and friends knew that he was in principle against the dowry system.
There was, therefore, no question of his torturing his wife for not bringing
sufficient dowry or for not being happy with the gifts brought by her. He
asserted that he took good care of his wife and even after marriage he permitted
her to continue her studies and she obtained her B.A. degree after marriage. He
had a joint account with
her which she
could operate and he had secured an agency of Unit Trust of India for her so
that it could keep her engaged. On the contrary, he stated that it was in the
year 1996 that some untoward incident took place and that was because his
mother-in-law as well as the respondent insisted that he should shift his
residence to Calcutta. About such incident he lodged a report at the police
station. He further stated that on 11-2-1997 the parents of respondent had come
to his house and asked him to live in their house or to take a rented house near
their house in Calcutta. After some argument they went away. Again on 16th
February, 1997, they came and threatened him that they will take away their
daughter and grandson. An incident took place on that day also, details of which
have been disclosed by him. He also stated, as was stated by PW-1, that after
marriage they frequently visited many places of interest to them. On the first
marriage anniversary he gifted a Guitar
to his wife. In
the year 1986 they went together to Varanasi, Lucknow, Allahabad. In 1988 they
went to Shillong, Gauhati, Kamrup etc. and in 1990 they went to Nainital, in
1993 to Panchmarhi, Patni, Jabalpur etc. They had gone to Shimla, Kulu, Manali
in 1995. Some photographs were produced which were taken when he and his wife
had visited such places. The appellant also examined witnesses to prove that he
and his wife enjoyed cordial relationship and this fact was known to relatives
and family friends.. He examined witnesses to prove that while they were
together there was no disturbance in their family life and their relationship
was cordial. The witnesses also support his case that even after the respondent
left his house he had sent his friends to her with money for her necessary
expenses. OPW-2, is a family friend. He deposed that he had attended the
function when the appellant and respondent got married. He also stated that he
did not find any disturbance in their
family life but he
came to know about it in mid 1997. He had once gone to pay cash to the
respondent but the respondent did not accept it. OPW-3, is a landlady of the
appellant. According to her the appellant took care of his wife and son and did
not torture her even though the respondent was not very obedient. 16.
Surprisingly, to this witness a suggestion was made by the cross-examining
counsel that the appellant was in love with her daughter-in- law and that is why
he used to go to her house. This was of course stoutly denied by OPW-3. This
fact has been noticed by the learned Magistrate but counsel for the respondent
in the course of his argument before the Magistrate did not pursue this line any
further and stated that the respondent had no grievance about the character of
the appellant. We are surprised that counsel for the respondent put such a
question to the witness when such was not the complaint in the application under
Section 125, Cr. P. C. nor had the
respondent as PW-1 or her
mother as PW-2 stated anything to the effect that the appellant had an affair
with any other lady. Without there being any basis in the pleadings, or even in
the evidence examined by the applicant, the learned Magistrate should not have
permitted such a question to be put to the witness, particularly when it
reflected not only on the character of the appellant but also on another lady
who was not a party to the proceeding. In our view, learned Magistrate was
remiss in permitting such a question to be put to the witness and in recording
the answer given by the witness. He should not have permitted such matters to go
on record. This however, discloses the attitude of the respondent and the extent
to which she could go to malign the appellant and tarnish his image. 17. OPW-4,
is a childhood friend of the appellant and was present when the negotiation for
the marriage took place. According to him, there was no demand for dowry or any
particular article.
After the marriage he
used to visit the house of the appellant and he found that their relationship
was very good. He had also gone two times to the house of the respondent after
she left her matrimonial home at the behest of the appellant to give some money
to her but she did not accept it. OPW-6 stated that he was known to the parties
and he had once gone to the house of the father of the respondent to hand over a
letter and some cash and books etc., but the respondent did not accept them.
This witness also stated that money orders were sent by the appellant to the
respondent. 18. From the evidence on record we are satisfied that the findings
recorded by the learned Magistrate were fully justified as they were based on
the evidence on record and appear to us to be reasonable. In her application the
respondent had given two reasons for her ill treatment by the appellant namely
his greed for dowry and that she was not good looking. So far the second reason
is concerned, in
the course of her
deposition, the respondent has not said a word about it. So far as the first
reason is concerned, on a careful scrutiny of the evidence on record, we have
also come to the conclusion that no dowry was ever demanded either before the
marriage or after the marriage. Even PW-2, the mother of the respondent had to
admit that the appellant had never demanded any dowry or gift. Of course she
added that all this was in his mind. We are, therefore, satisfied that the trial
Court properly appreciated the evidence on record while recording the finding
that there was never any demand for dowry by the appellant. There was,
therefore, no reason for him to ill-treat his wife for this reason. We,
therefore, find that both the reasons given in the application for her ill
treatment are non-existent. 19. We have also perused the evidence on record with
a view to ascertain whether for any other reason the respondent was ill treated
by the appellant. We have found from the
evidence on
record that the behaviour of the appellant has been throughout normal. It is
admitted by the parties that they frequently went during vacations to visit
different places. On some occasions they were even accompanied by the relatives
of the respondent. The appellant permitted the respondent to continue her
studies even after her marriage and that is how she secured her B.A. degree
after marriage. He also arranged an agency of the UTI to keep her engaged and
also opened a joint account in a bank which she could operate. All these facts
go to indicate that for several years after their marriage they enjoyed normal
marital relationship. In fact, there is evidence to show that the appellant used
to praise his wife in the presence of others by complimenting her and giving her
credit for the good performance of their son in his studies. This even the
respondent has admitted in the course of her deposition. Apart from these we
find it difficult to believe that
if the appellant
started torturing the respondent within 15 days of the marriage, the respondent
would not have reported this matter at least to her mother. According to her
mother, she came to know about her ill-treatment 5 to 6 years after marriage.
According to the respondent in her complaint Ex. 1 she had mentioned about such
happenings to her mother about eight years after her marriage. While there is
reference to reports lodged by the respondent to the police regarding torture by
the appellant, not one such report has been brought on record which may have
been lodged before the respondent left her matrimonial home. Even relevant
particulars are not disclosed. The only police report brought on record is one
lodged after the respondent left her matrimonial home. We do not attach much
importance to this report. There is no contemporaneous document in the form of
letters which may have been written by the respondent to her friends or
relatives mentioning about her
being subjected to
torture or harassment by the appellant. The respondent being an educated lady,
it is difficult to believe that she would not have written letters to her
friends and relatives during the twelve years that she lived with the appellant
as husband and wife. Apart from her mother, the respondent has produced no
evidence to prove that she was tortured and harassed by the appellant. The
learned Magistrate also noticed that though they lived at different places
around Calcutta during the period of twelve years after their marriage, not one
witness was examined by the respondent to prove that the appellant treated the
respondent with cruelty. On the other hand, some witnesses have been examined by
the appellant to prove that they lived a normal life and there was no question
of the respondent being tortured by the appellant for any reason whatsoever.
Even the other facts which we have found support the case of the appellant that
he had not treated the respondent
with cruelty for
any reason whatsoever. Learned counsel for the respondent laid great emphasis on
the observation of the Magistrate that the appellant being a bank employee
leaving for his work in the morning and returning late in the evening hardly had
any time to ill treat the respondent. No doubt, there is such an observation in
the order of the Magistrate, but that is not the basis of his findings. Too much
emphasis on such a stray observation in the order is not justified. 20. We
therefore hold that the High Court was not justified in setting aside the
findings recorded by the learned Judicial Magistrate. We have reached this
conclusion after appreciating the evidence on record since there is no
discussion of the evidence in the judgment of the High Court. Counsel for the
respondent posed before us a question as a part of his submission as to why the
respondent should leave her matrimonial home without any reason. In cases where
there is a dispute between husband
and wife it is very
difficult to unravel the true reason for the dispute. After separation when the
relationship turns sour, all sorts of allegations and counter allegations are
made against each other. Evidence of contemporaneous nature therefore plays an
important role in such cases as it may reveals the thinking and attitude of the
parties towards each other at the relevant time. Such evidence is usually found
in the form of letters written by the parties to each other or to their friends
and relatives or recorded in any other document of contemporaneous nature. If
really the respondent was subjected to cruelty and harassment in the manner
alleged by her, we have no doubt she would have written about such treatment to
her friends and relatives with whom she may have corresponded. The reports
allegedly made by her to the police may have thrown some light on this aspect of
the matter. Such evidence is completely absent in this case. It appears to us
that the parties lived
happily for many
years after the marriage till about the year 1996, whereafter there was some
misunderstanding which ultimately resulted in their separation. Why this
happened, it is difficult to fathom, but the evidence on record does not
convince us that the respondent was subjected to torture and harassment by the
appellant, and certainly not for the reasons alleged by her. The Court is not
permitted to conjecture and surmise. It must base its findings on the evidence
produced before it by the parties. The enquiry by the Court is restricted to the
evidence on record and the case pleaded by the parties. It is not permissible to
the Court to conjecture and surmise and make out a third case not pleaded by the
parties only to answer the query such as the one posed to us. . In the result
this appeal is allowed and the impugned judgment and order of the High Court is
set aside. 22. During the pendency of the proceeding before this Court it was
contended by the respondent
that the
appellant had not paid the amount which was payable by way of maintenance to the
son. We had directed the appellant to pay up the arrears of maintenance and
according to the appellant the amount has been paid. The respondent, however,
has raised some dispute about the amount payable and according to her some
amount is still due. We do not wish to express any opinion on this dispute and
leave it to the parties to take appropriate proceeding before the appropriate
forum, if so advised. Appeal allowed.

Jamal Uddin Ahmad V. Abu Saleh Najmuddin And Another. Citation: 2003-(001)-SCW
-1399 -SC. , Judges: Brijesh Kumar BENCH: Brijesh Kumar, R C Lahoti . Enactment:
CRIMINAL PROCEDURE CODE Section 125. Judgement Date: 28/02/2003 JUDGEMENT: R. C.
LAHOTI, J. :- Leave granted in all the SLPs. A common question of law arises for
decision in all the three appeals. It would suffice to state the facts of one of
the cases to have a glimpse of the backdrop events in which the question has
emerged for decision. In Civil Appeal No. --------/2003 (arising out of SLP(C)
No. 6098/2002) the appellant contested the last election to Legislative Assembly
from 'No. 5, Badarpur Legislative Assembly Constituency of Assam' held on
10-5-2001. The appellant was declared duly elected. On 27-6-2001 the contesting
respondent filed an Election Petition under Section 80/81 of the Representation
of the People Act, 1951 (hereinafter RPA, for short), laying
challenge to the appellants election. The Election Petition was presented before
Stamp Reporter-cum- Oath Commissioner of the High Court of Assam. The Stamp
Reporter received the election petition, conducted the preliminary scrutiny
thereof, and, along with his note, put up the same before the Designated
Election Judge. The appellant (respondent before the High Court) on being
noticed and having been served with a copy of the election petition, filed an
application raising preliminary objection to the maintainability of the
petition, seeking its dismissal in limine under Section 86 of the Act for
non-compliance with Section 81 of the Act. The gist of the plea raised by the
appellant is that the Election Petition should have been presented either before
the Designated Election Judge or the Chief Justice of the High Court; and that
the presentation before the Stamp Reporter is invalid under Section 81 of the
Act; and therefore, the petition is liable to be
dismissed without
trial. The learned Designated Election Judge has overruled the objection
preferred by the appellant and held that the election petition was properly
presented. In forming this opinion the learned Designated Election Judge has
relied on Chapter VIIIA of the High Court Rules which will be noticed hereafter
at an appropriate place. The facts in the other two appeals are similar and it
would suffice to state that similar objections that were preferred by the
respondents in the High Court (appellants before us) disputing the validity of
the presentation of the respective election petitions, which had been presented
before the Stamp Reporter, have been overruled. We have heard the learned
Counsel for the parties led by the learned Senior Advocates on both the sides.
We are satisfied that there is no merit in these appeals and the same are liable
to be dismissed. The submissions made on behalf of the appellants led by Shri R.
K. Jain, Senior Advocate, may
briefly be
noticed.. It was submitted that under Article 329 of the Constitution no
election to either House of Parliament or to the Houses of the Legislature of
the State shall be called in question except by an election petition presented
to such authority and in such manner as may be provided for by or under any law
made by an appropriate Legislature. The RPA, provides for the conduct of
elections to the Houses of Parliament and to the Houses of the Legislature of
each State, and for the decision of the disputes arising out of or in connection
with such elections, amongst other things. Chapter II deals with presentation of
election petitions to High Court. Under Section 80, no election shall be called
in question except by an election petition presented in accordance with the
provisions of this Part. Under Section 80-A, the Court having jurisdiction to
try an election petition shall be the High Court. Such jurisdiction shall be
exercised ordinarily by a single
Judge of the High
Court and the Chief Justice, shall, from time to time, assign one or more Judges
for that purpose. Section 81 provides for presentation of petitions, and Section
86 deals with the consequence of non-compliance. These provisions are reproduced
hereunder :- "81. Presentation of petitions. - (1) An election petition calling
in question any election may be presented on one or more of the grounds
specified in (sub-section (1)) of Section 100 and Section 101 to the (High
Court) by any candidate at such election or any elector (within forty-five days
from, but not earlier than the date of election of the returned candidate or if
there are more than one returned candidate at the election and dates of their
election are different, the later of those two dates). Explanation. - In this
sub-section, "elector" means a person who was entitled to vote at the election
to which the election petition relates, whether he has voted at such election or
not. 86. Trial of
election
petitions. - (1) The High Court shall dismiss an election petition which does
not comply with the provisions of Section 81 or Section 82 or Section 117.
Explanation. - An order of the High Court dismissing an election petition under
this sub-section shall be deemed to be an order made under clause (a) of Section
98. (2) As soon as may be after an election petition has been presented to the
High Court, it shall be referred to the Judge or one of the Judges who has or
have been assigned by the Chief Justice for the trial of election petitions
under sub-section (2) of Section 80-A. xxx xxx xxx xxx" Developing their
submissions further, the learned Counsel appearing for the appellants submitted
that an election petition has to be presented to the High Court. Under Articles
214 and 216 of the Constitution, there shall be a High Court for each State and
every High Court shall consist of a Chief Justice and such other Judges as the
President
may from time to time deem it necessary to appoint. The Constitution and the Act
do not provide for or specify the person to whom an election petition can be
presented, and therefore, an election petition should be presented either to the
High Court as defined by Articles 214 and 216 of the Constitution or at least to
the Chief Justice or to the Judge designated by the Chief Justice as the
Election Judge. In any case, the presentation of an election petition to the
Stamp Reporter is wholly unwarranted and unsupportable in law. The High Court
does not have jurisdiction to entertain and decide on merits a petition which
has been presented to a Stamp Reporter, the presentation itself being a nullity.
On behalf of the private respondents, the learned Counsel led by Mr. S. B.
Sanyal, learned Sr. Advocate placed reliance on the following rules framed by
Gauhati High Court contained in Chapter VIIIA. "CHAPTER VIII-A Special
provisions relating to procedure in
election
petitions under the Representation of the People Act, 1951 as amended by Act No.
XLVII of 1966 1. An election petition under S. 80-A of the Representation of the
People Act may be presented duly verified in the form prescribed under Ss. 82
and 83 of the said Act, before the Stamp Reporter of this Court with a Court-fee
of Rs. 6 affixed thereon, within 45 days from the date of election of the
returned candidate, or if there are more than one returned candidate at the
election and the dates of their election are different, the latter of those two
dates. Every such petition shall be accompanied by - (a) as many copies thereof
as there are respondents mentioned in the petition together with one extra copy,
all the copies being fully attested by the petitioner under his own signature to
be a true copy of the petition and as many envelopes as there are respondents
bearing requisite postage stamp to enable service to be effected by registered
post with
acknowledgment due;
(b) as many printed forms of notices, duly filled in, as there are respondents;
(c) an affidavit in support of the contents of the petition as prescribed in R.
83(c) of the aforesaid Act where necessary; and (d) a chalan showing the deposit
of Rs. 2,000 (Rupees two thousand) into the State Bank of India, Gauhati Branch
in favour of the Registrar of this Court, as security for the costs of the
petition : Provided that such deposit in respect of petition to be filed in the
Benches at Kohima, Imphal and Agartala may be made in the State Bank of Kohima,
Imphal and Agartala, as the case may be, in favour of the Deputy Registrar of
the Bench concerned. Note (I). The petition shall be legibly type-written or
printed in the English language, on durable foolscap paper or other paper
similar to it in size and quality, book-wise, on one side of the paper, with not
more than 20 or less than 18 lines, of about 10 words in each line on each page
and with an inner
margin of about
an inch and a quarter wide. Note (II). Any petition which is presented out of
time and without any of the abovementioned requisites duly satisfied shall
forthwith be returned by the Stamp Reporter for refiling." It was submitted on
behalf of the respondents that the presentation having been made in conformity
with the Rules, no exception can be taken to its validity. To this the learned
Counsel for the appellants replied by submitting that the only provision which
empowers the rules being framed under the Act is contained in Section 169, which
contemplates the rules for carrying out the purposes of the Act being made by
the Central Government after consulting the Election Commission and by
notification in the Official Gazette. Inasmuch as the Central Government has not
framed any rules governing the presentation of election petition the rules
framed by the High Court are invalid and cannot be given effect to or looked
into for saving the validity of its
presentation.
It was also submitted that the right to contest for and hold an elective office
is not a common law right but a right conferred by the Statute and so also the
resolution of election disputes is not a common law remedy governed by ordinary
law of the land; it is a special statutory remedy provided for by a special
enactment, and therefore, any departure from the provisions of the Constitution
or the Act cannot be countenanced. The Court would always be slow to interfere
with the success of a winning candidate at the election and an election petition
which does not strictly comply with the requirements as to its presentation
shall be liable to be dismissed and thrown out by strictly interpreting the law.
The question which arises for decision is whether the High Court is at all
competent to frame rules making provision for receiving the election petitions
presented to the High Court under Section 81 of the RPA; and if the High Court
is not competent to
frame the rules,
then whether in the absence of any provision in the Act or rules framed by the
Central Government specifying the person who is competent to receive election
petitions presented to the High Court, no petition can be presented; or, so long
as there is no specific provision can it be inferred by reading Article 329 with
Articles 214 and 216 of the Constitution that the election petition can be
presented only to the High Court in the sense of the Chief Justice and other
Judges constituting the High Court for the time being sitting together to
receive the election petition ? In our opinion, the controversy which has been
raised is devoid of any merit. It is pertinent to note that in the RPA as
originally enacted an election petition could be presented to the Election
Commission and thereafter it was to be tried by an Election Tribunal. Act No. 47
of 1966 has drastically amended Chapter II of RPA and with effect from
14-12-1966 the jurisdiction to try election
petition has
been conferred on the High Court. High Court is a Court which was pre-existing
on the date of amendment brought into being by Act No. 47 of 1966. It is a
constitutional Court and a Court of record having plenary jurisdiction. Dealing
with "Statutes conferring power; implied conditions, judicial review". Justice
G. P. Singh states in the Principles of Statutory Interpretation (Eighth Edition
2001, at pp. 333, 334) that a power conferred by a statute often contains
express conditions for its exercise and in the absence of or in addition to the
express conditions there are also implied conditions for exercise of the power.
An affirmative statute introductive of a new law directing a thing to be done in
a certain way mandates, even if there be no negative words, that the thing shall
not be done in any other way. This rule of implied prohibition is subservient to
the basic principle that the Court must, as far as possible, attach a
construction which
effectuates the
legislative intent and purpose. Further, the rule of implied prohibition does
not negative the principle that an express grant of statutory power carries with
it by necessary implication the authority to use all reasonable means to make
such grant effective. To illustrate, an Act of Parliament conferring
jurisdiction over an offence implies a power in that jurisdiction to make out a
warrant and secure production of the person charged with the offence; power
conferred on Magistrate to grant maintenance under Section 125 of the Code of
Criminal Procedure, 1973 to prevent vagrancy implies a power to allow interim
maintenance; power conferred on a local authority to issue licences for holding
'hats' or fairs implies incidental power to fix days therefor; power conferred
to compel cane growers to supply cane to sugar factories implies an incidental
power to ensure payment of price. In short, conferment of a power implies
authority to do everything which could
be fairly and
reasonably regarded as incidental or consequential to the power conferred. "For
a long time the Courts have, without objection from Parliament, supplemented
procedure laid down in legislation where they have found that to be necessary
for this purpose. But before this unusual kind of power is exercised it must be
clear that the statutory procedure is insufficient to achieve justice and that
to require additional steps would not frustrate the apparent purpose of

the
legislation" , said Lord Reid in Wiseman v. Boardman, (1971) AC 297, 308.. "If a
statute is passed for the purpose of enabling something to be done, but omits to
mention in terms some detail which is of great importance (if not actually
essential) to the proper and effectual performance of the work which the statute
has in contemplation, the Courts are at liberty to infer that the statute by
implication empowers that detail to be carried out". (Craies on Statute Law,
Seventh Edition, p. 111).
Cui jurisdictio
data est, ea quoque concessa esse uidentur, sine quibus jurisdictio explicart
non potuit - "Where an act confers a jurisdiction, it impliedly also grants the
power of doing all such acts, or employing such means, as are essentially
necessary to its execution". (Maxwell on Interpretation of Statutes, Eleventh
Edition, p. 350). Referring to Maxwell (ibid), Sutherland's Statutory
Construction and Domat's Civil Law, the law was thus stated, as a "firmly
established rule", by this Court in Income-tax Officer, Cannanore v. M. K.
Mohammed Kunhi, (1969) 2 SCR 65 (AIR 1969 SC 430), that an express grant of
statutory power carries with it by necessary implication the authority to use
all reasonable means to make such grant effective. In Chief Executive Officer &
Vice-Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu & Ors., (1996)
11 SCC 23, this Court held that the conferral of incidental and ancillary powers
necessarily flows from the conferral of the
substantive power.
"It is well settled that where a substantive power is conferred upon a Court or
Tribunal, all incidental and ancillary powers necessary for an effective
exercise of the substantive power have to be inferred". Undoubtedly clause (b)
of Article 329 of the Constitution speaks of an election petition being
presented to such authority and in such manner as may be provided for by or
under any law made by the appropriate legislature. The Representation of the
People Act, 1951 is such law made by the Parliament. Section 80-A of the Act
confers jurisdiction to try an election petition upon the High Court. By no
stretch of imagination it can be said that the "presentation" of an election
petition is part of the "trial" of an election petition. Section 81 of the Act
prescribes limitation, the manner and requirements of presentation and that the
election petition may be presented to the High Court. The term "High Court" in
Section 81 has been used to denote an
institution and not
literally the High Court as constituted within the meaning of Article 216 of the
Constitution. It would be an absurdity to assume that even though the election
petition can be tried by a single Judge of the High Court insofar as
presentation is concerned it must be to the "High Court" in the sense of the
High Court consisting of a Chief Justice and other Judges appointed to the High
Court (as contemplated by Article 216), i.e. presented to the Chief Justice and
all the Judges sitting together. It is equally absurd to assume that a single
Judge assigned or to be assigned with the trial of an election petition must
himself receive the election petition. A Judge of the High Court may be
designated as an Election Judge and assigned the trial of an election petition
subsequent to its being received in the High Court. It may be that the Chief
Justice has not designated an Election Judge under sub-section (2) of Section
80-A of the Act until an election
petition was actually
received in the High Court. Who then would receive the election petition ? Do
the Constitution and the RPA expect the Chief Justice himself to discharge the
ministerial act of receiving an election petition presented to the High Court ?
Our answer is an emphatic 'no'. The functions discharged by a High Court can be
divided broadly into judicial and administrative functions.. The judicial
functions are to be discharged essentially by the Judges as per the rules of the
Court and cannot be delegated. However, administrative functions need not
necessarily be discharged by the Judges by themselves, whether individually or
collectively or in a group of two or more, and may be delegated or entrusted by
authorization to subordinates unless there be some rule of law restraining such
delegation or authorisation. Every High Court consists of some administrative
and ministerial staff which is as much a part of the High Court as an
institution and is meant to be
entrusted with the
responsibility of discharging administrative and ministerial functions. There
can be 'delegation' as also there can be 'authorization' in favour of the
Registry and the officials therein by empowering or entrusting them with
authority or by permitting a few things to be done by them for and on behalf of
the Court so as to aid the Judges in discharge of their judicial functioning.
Authorization may take the form of formal conferral or sanction or may be by way
of approval or countenance. Such delegation or authorization is not a matter of
mere convenience but a necessity at times. The Judges are already overburdened
with the task of performing judicial functions and the constraints on their time
and energy are so demanding that it is in public interest to allow them to
devote time and energy as much as possible in discharging their judicial
functions, relieving them of the need for diverting their limited resources of
time and energy to such
administrative or ministerial
functions, which, on any principle of propriety, logic, or necessity are not
required necessarily to be performed by the Judges. Receiving a cause or a
document and making it presentable to a Judge for the purpose of hearing or
trial and many a functions post-decision, which functions are administrative and
ministerial in nature, can be and are generally entrusted or made over to be
discharged by the staff of the High Court, often by making a provision in the
rules or under the orders of the Chief Justice or by issuing practice
directions, and at times, in the absence of rules, by sheer practice. The
practice gathers the strength of law and the older the practice the greater is
the strength. The Judges rarely receive personally any document required to be
presented to the Court. Plaints, petitions, memoranda or other documents
required to be presented to the Court are invariably received by the
administrative or ministerial staff, who would also carry
out a preliminary
scrutiny of such documents so as to find that they are in order and then make
the documents presentable to the Judge, so that the valuable time of the Judge
is not wasted over such matters as do not need to be dealt with personally by
the Judge. The judicial function entrusted to a Judge is inalienable and differs
from an administrative or ministerial function which can be delegated or
performance whereof may be secured through authorization. "The judicial function
consists in the interpretation of the law and its application by rule or
discretion to the facts of particular cases. This involves the ascertainment of
facts in dispute according to the law of evidence.. The organs which the State
sets up to exercise the judicial function are called Courts of law or Courts of
justice. Administration consists of the operations, whatever their intrinsic
nature may be, which are performed by administrators; and administrators are all
State officials who are
neither legislators
nor Judges" (Constitutional and Administrative Law, Phillips and Jackson, Sixth
Edition, p. 13). P. Ramnath Aiyer's Law Lexicon defines Judicial Function as the
doing of something in the nature of or in the course of an action in Court (p.
1015). The distinction between "Judicial" and "Ministerial Acts" is : "If a
Judge dealing with a particular matter has to exercise his discretion in
arriving at a decision, he is acting judicially; if on the other hand, he is
merely required to do a particular act and is precluded from entering into the
merits of the matter, he is said to be acting ministerially" (pp. 1013-14).
Judicial function is exercised under legal authority to decide on the disputes,
after hearing the parties, may be after making an enquiry, and the decision
affects the rights and obligations of the parties. There is duty to act
judicially. The Judge may construe the law and apply it to a particular state of
facts presented for the determination
of controversy. A
ministerial act, on the other hand, may be defined to be one which a person
performs in a given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to, or the exercise of, his own
judgment upon the propriety of the act done (Law Lexicon, ibid, p. 1234). In
ministerial duty nothing is left to discretion; it is a simple, definite duty.
Presentation of election petition to the High Court within the meaning of
Section 81 of the Act without anything more would mean delivery of election
petition to the High Court through one of its officers competent or authorized
to receive the same on behalf of and for the High Court. Receiving an election
petition presented under Section 81 of the Act is certainly not a judicial
function which needs to be performed by a Judge alone.. There is no discretion
in receiving an election petition. An election petition, when presented, has to
be received. It is a simple, definite
duty. The date and
time of presentation and the name of person who presented (with such other
particulars as may be prescribed) are to be endorsed truly and mechanically on
the document presented. It is a ministerial function simpliciter. It can safely
be left to be performed by one of the administrative or ministerial staff of the
High Court which is as much a part of the High Court. It may be delegated or be
performed through someone authorized. The manner of authorization is not
prescribed.. The High Court, in authorizing an official to receive an election
petition either by collective decision of all the Judges or under the directions
of the Chief Justice of the High Court, does not 'delegate' any of its
functions, much less a judicial function; it merely 'authorizes' an official to
do an act incidental to the main judicial function of trial of an election
petition which is entrusted to the High Court exercisable ordinarily by a single
Judge of the High Court assigned
by the Chief
Justice for that purpose. Such authorization whether made by rules of the High
Court or by decision of the Court or by an order of the Chief Justice shall hold
good unless there be a provision to the contrary in the Act or in the Rules
framed by the Central Government in exercise of the powers conferred by Section
169 of the Act, which there is none. It is not disputed that the Stamp Reporter
is an official in the Gauhati High Court and a necessary part of the
administrative staff performing functions of utility and responsibility in the
administrative set up. It will be useful to notice how Section 81 read prior to
its amendment by Act No. 47 of 1966. The provision as originally contained in
the Representation of the Peoples Act, 1951 read as under :- "81. Presentation
of petitions. - (1) An election petition calling in question any election may be
presented on one or more of the grounds specified in sub-section (1) of Section
100 and Section 101 to the
Election
Commission by any candidate at such election or any elector within forty-five
days from, but not earlier than, the date of election of the returned candidate,
or if there are more than one returned candidate at the election and the dates
of their election are different, the later of those two dates. Explanation.. -
In this sub-section, "elector" means a person who was entitled to vote at the
election to which the election petition relates, whether he has voted at such
election or not. (2) An election petition shall be deemed to have been presented
to the Election Commission - (a) when it is delivered to the Secretary to the
Commission or to such officer as may be appointed by the Election Commission in
this behalf - (i) by the person making the petition, or (ii) by a person
authorized in writing in this behalf by the person making the petition; or (b)
when it is sent by registered post and is delivered to the Secretary to the
Commission or the officer so
appointed. (3) Every election petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition and one more copy for
the use of the Election Commission, and every such copy shall be attested by the
petitioner under his own signature to be a true copy of the petition."
Sub-section (1) of the abovesaid provision required the election petition being
presented to the Election Commission. Sub-section (2) provided for the election
petition being delivered to the Secretary to the Commission or to such other
officer as may be appointed by the Election Commission or even being sent by
registered post and delivered to the Secretary to the Commission or the officer
appointed so as to be deemed to have been presented to the Election
Commissioner. While "High Court" has been substituted in place of Election
Commission in sub-section (1), sub-section (2) of the erstwhile Section 81 has
been deleted without re-enacting a
corresponding
provision. The reason is more than obvious. The Parliament knew that so far as
the Election Commission is concerned, it was considered necessary to trust only
the Secretary to the Commission or such other officer as may be appointed by the
Election Commission entrusted with the responsibility of receiving the election
petition presented to the Election Commission. So far as the High Court is
concerned, such a provision was not required to be enacted into the Act.
Jurisdiction to try an election petition has been conferred on the High Court in
place of the Election Tribunal. The High Court is a constitutional Court which
was pre-existing. It is a Court of record and exercises plenary powers. The High
Court being a preexisting judicial institution also had rules, directions and
practice already existing and prevalent and governing the reception of documents
presented to it; the same would apply to election petitions. CURSUS CURIAF EST
LEX CURIAE. - The
practice of the Court
is the law of the Court. Every Court is the guardian of its own records and the
master of its own practice; and where a practice has existed, it is convenient,
except in cases of extreme urgency and necessity, to adhere to it, because it is
the practice, even though no reason can be assigned for it; for an inverterate
practice in law generally stands upon principles that are founded in justice and
convenience. (Broom's Legal Maxims, Tenth Edition, p. 82). Even in the absence
of Chapter VIII-A in the Gauhati High Court Rules there would have been nothing
wrong in the High Court or the Chief Justice authorizing any of its officers to
receive the election petition presented to it so as to enable exercise of the
jurisdiction conferred on the High Court by Chapter II of the Act. The Gauhati
High Court thought it proper to incorporate Chapter VIII-A in its Rules in view
of the amendment made in Chapter II of the Act. We are therefore of the opinion
that
presentation of an
election petition to the Stamp Reporter of the High Court of Gauhati is a valid
presentation. Such has been the view taken by the High Court of Gauhati
consistently. At least three decisions can be referred to immediately : Abdul
Jabbar v. Syeda Anwara Taimur & Ors., (1986) 1 GLR 257; Shri Melhupra Vero v.
Shri Vamuzo, (1990) 1 GLR 290 and Shri Saingura v. Shri F. Sapa & Ors., (1990) 2
GLR (NOC) 48. So is the view taken by the High Court of Allahabad in Nawab Khan
v. Vishwanath Shastri, AIR 1993 Allahabad 104. We find ourselves in agreement
with the view so taken by the learned single Judges of Gauhati and Allahabad
High Courts. During the course of hearing a recent decision by a learned single
Judge of Gauhati High Court in Utpal Dutta v. Indra Gogoi (Misc. Case No.
13/2001 in E.P. No. 7/2001 decided on 29-8-2002) was brought to our notice
wherein Rule 1 of Chapter VIIIA of Gauhati High Court Rules has been struck down
as ultra vires of Sections 80,
80-A, 81 of the RPA
read with Article 329(b) of the Constitution. It was forcefully submitted by the
learned Counsel for the appellants that the rule having been struck down as
ultra vires, it would be deemed to be non-existent and therefore all the
election petitions presented to the Stamp Reporter of Gauhati High Court would
be non est and such election petitions cannot be set down for hearing and be
tried. The question of the vires of the abovesaid rule does not directly arise
for decision before us as the same was not put in issue in any of the three
cases the orders passed wherein are the subject-matter in these appeals. It
would suffice for us to observe that going into the vires of the rules is an
intellectual exercise in futility, for, it would lead us nowhere. Herbert Broom
states in the preface to his celebrated work on Legal Maxims - "In the Legal
Science, perhaps more frequently than in any other, reference must be made to
first principles". The fundamentals or
the first
principles of law often articulated as the maxims are manifestly founded in
reason, public convenience and necessity. Modern trend of introducing subtleties
and distinctions, both in legal reasoning and in the application of legal
principles, formerly unknown, have rendered an accurate acquaintance with the
first principles more necessary rather than diminishing the values of simple
fundamental rules. The fundamental rules are the basis of the law; may be either
directly applies, or qualified or limited, according to the exigencies of the
particular case and the novelty of the circumstances which present themselves.
In Dhannalal v. Kalawatibai & Ors., (2002) 6 SCC 16 (2002 AIR SCW 2873 : AIR
2002 SC 2572), this Court has held, "when the statute does not provide the path
and the precedents abstain to lead, then sound logic, rational reasoning, common
sense and urge for public good play as guides of those who decide". Whether the
High Court has the power
to frame the rules
under the provision of the RPA, or not, is a question of which need not be gone
into. As we have already held, the High Court and the Chief Justice, as the case
may be, have the power to frame rules and issue directions regulating the own
affairs and conduct of business in the High Court. Even in the absence of rules
or directions if there is any practice prevailing under which the administrative
or ministerial functions of the High Court are being performed, unless there be
something inherently objectionable or impermissible about if the same should be
allowed to prevail if it satisfies the test of being incidental and essential to
the performance of the main judicial functions of the High Court. The rules may
not be referable to the provision of the RPA as the source of power of the High
Court - on which we express no opinion as the same is not necessary - the fact
remains that such rules manifest the administrative decision of the High Court
to which
the Chief Justice
is a party.. Inasmuch as such decision does not run counter to any rule of law
it is binding and must be upheld. Strange consequences would follow if the
submission made on behalf of the appellants and the reasoning which has
prevailed with the learned single Judge of Gauhati High Court in Utpal Dutta v.
Indra Gogoi (supra) was to be accepted. The jurisdiction to try an election
petition has been conferred by the Parliament on the High Court so as to carry
out the mandate of Article 329 of the Constitution. Neither the Parliament nor
the Central Government have exercised their power by designating an authority to
whom the election petition can be presented. There is a void left open by
legislation. The gap is not to be found in the jurisdiction created nor in the
substantive provision; the gap is in the field of procedural law, for failure to
specifically enact an incidental or ancillary provision which would enable the
statutory right of an election
petitioner being
exercised so as to enable the election petition, in the hands of the election
petitioner reaching the High Court - the competent jurisdiction, for being
subjected to hearing and trial. We have to attribute an intention to the
Parliament that the High Court having been conferred with the substantive
jurisdiction to hear and try an election petition, the making of provision for
all incidental and ancillary matters was left to the High Court which can either
continue with the existing practice of receiving petitions and documents, just
as in other civil jurisdictions exercised by it, or could make or devise
convenient and workable procedure of receiving election petitions and other
documents presented to it in exercise of the jurisdiction conferred by the Act.
Recently in High Court of Judicature for Rajasthan v. P.P... Singh & anr., 2003
(1) JT (SC) 403 (2003 AIR SCW 539), a question arose as to power and propriety
of the High Court and the Chief Justice
delegating or
referring administrative matters of the High Court for the opinion of a
Committee of Judges and acting thereon. A few observations made by this Court in
this context are apposite to the case on hand. "Whereas control over the
subordinate Courts vests in the High Court as a whole, the control over the High
Court vests in the Chief Justices. [All India Judges' Association v. Union of
India & Ors., (1992) 1 SCC 119 (1991 AIR SCW 2869 : AIR 1992 SC 165 : 1992 All
LJ 185). In State of Uttar Pradesh v. Batuk Deo Pati Tripathi & Anr., (1978) 2
SCC 102 (1978 Lab IC 839 : 1978 All LJ 477), keeping in view the nature of the
power conferred by the Constitution on the High Court, this Court held that it
is wrong to characterize as "delegation" the process whereby the entire High
Court authorizes a Judge or some of the Judges of the Court to act on behalf of
the whole Court. Delegation has to be distinguished from authorization.
Authorization effectuates the purpose
of Article 235 and
indeed without it the control vested in the High Court over the subordinate
Courts will tend gradually to become lax and ineffective. Administrative
functions are only a part, though an important part, of the High Court's
constitutional functions. Judicial functions ought to occupy and do in fact
consume the best part of a Judge's time. For balancing these two-fold functions
it is inevitable that the administrative duties should be left to be discharged
by some on behalf of all the Judges. Judicial functions brook no such sharing of
responsibilities by any instrumentality. In The State of Punjab & anr. v.
Shamlal Murari & anr., 1976) 1 SCC 719 at page 722 (AIR 1976 SC 1177 : 1976 Lab
IC 777), this Court held "processual law is not to be a tyrant but a servant,
not an obstruction but an aid to justice. Procedural prescriptions are the
handmaid and not the mistress, a lubricant not a resistant, in the
administration of justice. Where the non-compliance,
though procedural,
will thwart fair hearing or prejudice the doing of justice to parties, the rule
is mandatory. But, grammar apart, if the breach can be corrected without injury
to a just disposal of the case, the Court should not enthrone a regulatory
requirement into a dominant desideratum. After all, Courts are to do justice,
not to wreck this end product on technicalities" . Irrationality, perversity and
hyper-technicality are out of place while interpreting the Statutes or testing
the vires of legislation. We do not find any fault with the election petitions
having been presented to and received by the Stamp Reporter of the High Court of
Gauhati. The learned Designated Election Judge has rightly overruled the
preliminary objection preferred by the respondents. All the appeals are held
devoid of any merit and liable to be dismissed. They are dismissed accordingly
and with costs. Counsel fee Rs. 5000/-.. Appeals dismissed. .
K. A. Abdul Jaleel V. T. A. Shahida Citation: 2003-(001)-SCW -2710 -SC. ,
Judges: Ar Lakshmanan BENCH: Ar Lakshmanan, S B Sinha V N Khare . Enactment:
CRIMINAL PROCEDURE CODE Section 125. Judgement Date: 10/04/2003 JUDGEMENT: S. B.
SINHA, J. :- Leave granted. Whether the Family Court has jurisdiction to
adjudicate upon any question relating to the properties of divorced parties
arises for consideration in this appeal. The said question arises out of a
judgment and order dated 20-3-2001 passed by a Division Bench of the Kerala High
Court dismissing an appeal from an order passed by the Family Court, Ernakulam,
dated 22-7-1998 in O.P. No. 343 of 1996. The parties to this appeal were married
on 3-1-1988. A female child was born out their wedlock on 11-10-1988. Allegedly,
after the birth of the second child, owing to deterioration in the health of the
respondent herein, the relationship of the parties became strained. The
respondent contended that at the time of marriage, a large amount in cash as
also gold ornaments were given. From the cash amount the appellant herein
purchased a property described in Schedule 'A' of the petition on 1-2-1988.. The
balance amount was kept by the appellant. He allegedly further sold the gold
ornaments of the respondent and out of the sale proceeds he purchased the
property described in Schedule 'B' of the petition. In respect of properties an
agreement marked Exhibit A1 was executed by the parties, in terms whereof it was
agreed that the properties purchased from the aforesaid amount will be
transferred in the name of the respondent by the appellant. The appellant herein
pronounced Talaq on 1-11-1995 after his relationship with the respondent became
strained. In terms of the said agreement dated 17-9-1994, the respondent filed a
suit marked O.S. No. 85 of 1995 in the Family Court on 8-12-1995. The appellant
in his written statement alleged
that the said
agreement was signed by him under threat and coercion and further contended that
several documents purported to have been executed by him in support thereof were
also obtained by applying force. Both the parties examined themselves as also
proved various documents in the said suit before the Family Court. The Family
Court by a judgment and order dated 22-7-1998 decreed the suit in favour of the
respondent herein upon arriving at a finding that she was the absolute owner of
the Schedule 'A' property as also 23/100 shares in the Schedule 'B' property.
Aggrieved thereby and dissatisfied therewith, the appellant preferred an appeal
before the High Court which was marked as MFA No. 196 of 1999. By reason of the
impugned judgment dated 20-3-2001, the said appeal has been dismissed. Mr. Haris
Beeran, learned counsel appearing on behalf of the appellant, would submit that
having regard to the provisions contained in S. 7 of the Family Court Act, 1984,
the Family
Court had
no Jurisdiction to decide a dispute as regards properties claimed by a divorced
wife. The learned counsel would urge that the jurisdiction exercisable by any
Family Court being between the parties to a marriage which would mean parties to
a subsisting marriage. In support of the said contention strong reliance has
been placed on a judgment of a Division Bench of the Allahabad High Court in
Amjum Hasan Siddiqui v. Smt. Salma B. (AIR 1992 All 322) and Ponnavolu Sasidar
v. Sub-Registrar, Hayatnagar and others (AIR 1992 Andh Pra 198). Mr. T. L. V.
Iyer, learned senior counsel appearing on behalf of the respondent, on the other
hand, would contend that the matter is covered by an inter-parties judgment
passed by a Division Bench of the Kerala High Court which is since reported in
(1997 (1) KLT 734). As the appellant herein did not question the correctness of
the said judgment, he cannot be permitted to turn round and now challenge the
jurisdiction of the
Family Court. The
Family Courts Act was enacted to provide for the establishment of Family Courts
with a view to promote conciliation in and secure speedy settlement of disputes
relating to marriage and family affairs and for matters connected therewith.
From a perusal of the Statement of Objects and Reasons, it appears that the said
Act, inter alia, seeks to exclusively provide within the jurisdiction of the
Family Courts the matters relating to the property of the spouses or either of
them. Section 7 of the Act provides for the jurisdiction of the Family Court in
respect of suits and proceedings as referred to in the Explanation appended
thereto. Explanation (c) appended to S. 7 refers to a suit or proceeding between
the parties to a marriage with respect to the property of the parties or of
either of them. The fact of the matter, as noticed hereinbefore, clearly shows
that the dispute between the parties to the marriage arose out of the properties
claimed by one spouse
against the
other. The respondent herein made a categorical statement to the effect that the
properties were purchased out of the amount paid in cash or by way of ornaments
and the source of consideration for purchasing the properties described in
Schedule 'A' and 'B' of the suit having been borne to of the same, the appellant
herein was merely a trustee in relation thereto and could not have claimed any
independent interest thereupon. It is also apparent that whereas the agreement
marked as Exhibit A1 was executed on 17-9-1994, the appellant pronounced Talaq
on 1-11-1995. The wordings 'disputes relating to marriage and family affairs and
for matters connected therewith' in the view of this Court must be given a broad
construction. The Statement of Objects and Reasons, as referred to hereinbefore,
would clearly go to show that the jurisdiction of the Family Court extends,
inter alia, in relation to properties of spouses or of either of them which
would clearly mean
that the properties
claimed by the parties thereto as a spouse of other, irrespective of the claim
whether property is claimed during the subsistence of a marriage or otherwise.
The submission of the learned counsel to the effect that this Court should read
the words a suit or proceeding between the parties to a marriage as parties to a
subsisting marriage, in our considered view would lead to miscarriage of
justice. The Family Court was set up for settlement of family disputes. The
reason for enactment of the said Act was to set up a Court which would deal with
disputes concerning the family by adopting an approach radically different from
that adopted in ordinary civil proceedings. The said Act was enacted despite the
fact that Order 32A of the Code of Civil Procedure was inserted by reason of the
Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any
desired result. It is now a well-settled principle of law that the jurisdiction
of a Court created
specially
for resolution of disputes of certain kinds should be construed liberally. The
restricted meaning if ascribed to Explanation (c) appended to Section 7 of the
Act, in our opinion, would frustrate the object wherefor the Family Courts were
set up. In Amjum Hassan Siddiqui's case (supra) (AIR 1992 Allahabad 322) an
application was filed in terms of Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986. The question before the Allahabad High Court arose
as to whether a Family Court could deal with such a dispute. It was held that no
application could lie before the Family Court as the claim under Section 3 of
the 1986 Act would neither be a suit nor a proceeding within the meaning of
Section 7 of the Family Courts Act inasmuch as such an application could only be
moved before the First Class Magistrate having requisite jurisdiction as
provided for in the Code of Criminal Procedure. The said decision, in our
opinion, cannot be said to have
any application
whatsoever in the instant case. In Smt. P. Jayalakshmi and another v. V.
Revichandran and another (AIR 1992 AP 190) (1992 Cri LJ 1315) the Andhra Pradesh
High Court was dealing with a case under Section 125 of the Code of Criminal
Procedure. It was held that although the matrimonial proceeding was moved before
the Family Court, the same could not have provided for a legal bar for the wife
and the minor child for instituting a proceeding under Section 125 of the Code
of Criminal Procedure at Tirupathi where they were residing; as both the rights
are separate. As indicated hereinbefore, Balakrishnan, J. (as His Lordship then
was) speaking for a Division Bench in a matter arising out of a preliminary
issue on the question of jurisdiction held that the dispute over properties
between parties to a marriage cannot be confined to the parties to a subsisting
marriage. We agree with the said view.. The said decision being inter-parties
and having attained finality
would operate
as res judicata. The further contention of the learned counsel appearing on
behalf of the appellant is that as the respondent had already filed an
application under Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act, 1986, wherein an amount of Rs. 1,33,200/- was awarded in her
favour, the impugned proceeding was not maintainable. The two proceedings are
absolutely separate and distinct. The impugned judgment does not show that the
said question was even argued before the High Court. As indicated hereinbefore,
the factual issue involved in this appeal revolved round as to whether Exhibit
A1 was obtained by applying force or undue influence upon the appellant. The
said contention has been negatived by both the Family Court as also the High
Court. We, therefore, find no merit in this appeal which is dismissed with
costs. Counsel's fee assessed at Rs. 5,000/- (Rupees Five Thousand only). Appeal
dismissed.

Naresh Chandra Singhania. Appellant v. Deepika Alias Buby Respondent.. Citation:

2005-SCC-10- 299 , Judges: Ruma Pal and Arun Kumar, JJ. Enactment: Civil
Procedure Code, 1908 - or. 18 Rr. 2 & 3, or. 7 R. 1 and or. 8 R. 1, Criminal
Procedure Code, 1973 - S. 125 Judgement Date: 27/10/2004 HEAD NOTES: HINDU
MARRIAGE ACT,1955, SECTION 13 - DIVORCE - CRUELTY - MAINTENANCE - IT IS NOT
NECESSARY FOR THE HUSBAND TO ESTABLISH FROM THE WRITTEN STATEMENT THAT THE WIFE
WAS ABUSIVE - HE HAD GIVEN CATEGORICAL EVIDENCE TO THIS EFFECT WHEN HE WAS
EXAMINED BEFORE THE TRIAL COURT BOTH AS REGARDS THE ALLEGATIONS OF INFIDELITY
AND IS WITH REGARD TO THE PHYSICAL ASSAULT COMMITTED BY WIFE - SUIT FOR DIVORCE
DECREED - HOWEVER AMOUNT OF MAINTENANCE TO WIFE ENHANCED FROM RS. 800 TO RS.
1500 P.M. (PARA 3) Judgement: ORDER 1. The appellant is the husband and the
respondent is the wife. Their marriage took place in 1988. Within three
years of their marriage, they had two children. However, soon after the birth of
the last issue, it appears that the relationship between the husband and wife
deteriorated so much so that the appellant claims to have filed a complaint with
the local Mahila Samiti against his wife. According to the appellant, an
incident took place on 15-7-1993 in which he claims that the respondent slapped
him and pushed him as a result of which he fractured his arm. He filed a
petition for divorce soon thereafter. The ground on which the divorce was sought
was cruelty both physical and mental. As far as the physical aspect is
concerned, the allegation in the plaint is that the respondent was responsible
for the fracture of the appellant's hand in the manner earlier stated. As far as
the mental cruelty is concerned, it is alleged that the respondent used to level
allegations of an illicit relationship between the appellant and other ladies.
The respondent wife filed a
petition for
restitution of conjugal rights. 2. The trial court held in favour of the
appellant and was of the view that the appellant had been able to establish both
physical and mental cruelty as pleaded by him. A decree for divorce was passed
on the appellant's petition and the respondent's prayer for restitution of
conjugal rights was dismissed. The High Court reversed the judgment of the trial
court on appeal. The High Court was of the view that the allegations regarding
abusive behaviour had not been established because no such allegations had been
made by the respondent either in her written statement or in her oral evidence.
The High Court also held that since the wife wished to live with her in-laws and
that the husband had not made any effort to bring his wife to the house after
she left the house, this showed that the respondent wife had been turned out of
the house by the appellant husband without any reasonable cause. The appellant's
suit was,
accordingly, dismissed
and the respondent's suit for restitution of conjugal rights was decreed. 3.. We
find the reasoning of the High Court difficult to accept. It was not necessary
for the husband to establish from the written statement that the wife was
abusive. He had given categorical evidence to this effect when he was examined
before the trial court both as regards the allegations of infidelity and also
with regard to the physical assault committed by the respondent on the husband.
Although a contrary case was suggested to the appellant there was no effective
cross-examination of the appellant husband on this point. In addition to the
oral evidence given, in support of the pleas by the husband, corroboration could
be found in the pleadings filed by the respondent in connection with proceedings
during the pendency of the matrimonial suit. In her application under Section 24
of the Hindu Marriage Act for maintenance as well as in her rejoinder, the
respondent has clearly
made
allegations against the husband saying that he was engaged in an adulterous
relationship. The trial court has noted this and also noted that in her
examination- in-chief the respondent had denied that she had ever abused her
husband of having immoral character or having an extramarital relationship. The
trial court coming to the conclusion on the evidence on record that the
appellant had established his case was justified. The High Court's reasoning and
conclusion to the contrary is insupportable. 4. In the circumstances, we are of
the view that the decision of the High Court cannot be sustained and the suit
for divorce filed by the appellant must be decreed. Consequently, the suit filed
by the respondent for restitution of conjugal rights must stand dismissed.
However, this does not conclude the matter. There is still outstanding the
question of maintenance payable by the appellant to the respondent. Initially,
the maintenance granted to the
respondent wife by the trial court was Rs 800 p.m. The learned counsel appearing
on behalf of the respondent has fairly stated that there has been a marginal
increase in the earnings of the appellant husband. However, it is also pointed
out that the children whose custody has remained with the appellant all along
also required to be looked after. Considering the facts and circumstances of the
case, we direct the appellant husband to pay a sum of Rs 1500 p.m. to the
respondent wife with effect from the second week of November, 2004. 5. The
appeals are, allowed accordingly.

Savitaben Somabhal Bhatiya, Appellant v. State of Gujarat and others,

Respondents. Citation: 2005-AIR(SC) -1809 , 2005-SCC-3-636 Judges: Arijit
Pasayat and S. H. Kapadia, JJ. Enactment: Criminal P.C. (2 of 1974), Ss. 125,
127 ; Evidence Act (1 of 1872), S. 115. Judgement Date: 10/03/2005 HEAD NOTES:
(A) CRIMINAL P.C. (2 OF 1974), S. 125 - IT MAY BE NOTED AT THIS JUNCTURE THAT
THE LEGISLATURE CONSIDERED IT NECESSARY TO INCLUDE WITHIN THE SCOPE OF THE
PROVISION AN ILLEGITIMATE CHILD BUT IT HAS NOT DONE SO WITH RESPECT TO WOMAN NOT
LAWFULLY MARRIED. HOWEVER, DESIRABLE IT MAY BE, AS CONTENDED BY LEARNED COUNSEL
FOR THE APPELLANT TO TAKE NOTE OF THE PLIGHT OF THE UNFORTUNATE WOMAN, THE
LEGISLATIVE INTENT BEING CLEARLY REFLECTED IN SECTION 125 OF THE CODE, THERE IS
NO SCOPE FOR ENLARGING ITS SCOPE BY INTRODUCING ANY ARTIFICIAL DEFINITION TO
INCLUDE WOMAN NOT LAWFULLY MARRIED IN THE EXPRESSION 'WIFE'. EVIDENCE ACT (1TO
1872), S 15- BUT
IT DOES NOT FURTHER THE CASE OF THE APPELLANT IN THE INSTANT CASE. EVEN IF IT IS
ACCEPTED AS STATED BY LEARNED COUNSEL FOR THE APPELLANT THAT HUSBAND WAS
TREATING HER AS HIS WIFE IT IS REALLY INCONSEQUENTIAL. IT IS THE INTENTION OF
THE LEGISLATURE WHICH IS RELEVANT AND NOT THE ATTITUDE OF THE PARTY. THE
PRINCIPLE OF ESTOPPEL CANNOT BE PRESSED INTO SERVICE TO DEFEAT THE PROVISION OF
SECTION 125 OF THE CODE. (B) CRIMINAL P.C. (2 OF 1974), S. 125 - THE PROVISION
IS ENACTED FOR SOCIAL JUSTICE AND SPECIALLY TO PROTECT WOMEN AND CHILDREN AS
ALSO OLD AND INFIRM POOR PARENTS AND FALLS WITHIN THE CONSTITUTIONAL SWEEP OF
ARTICLE 15(3) REINFORCED BY ARTICLE 39 OF THE CONSTITUTION OF INDIA, 1950 (IN
SHORT THE 'CONSTITUTION' ). THE PROVISION GIVES EFFECT TO THE NATURAL AND
FUNDAMENTAL DUTY OF A MAN TO MAINTAIN HIS WIFE, CHILDREN AND PARENTS SO LONG AS
THEY ARE UNABLE TO MAINTAIN THEMSELVES. ITS PROVISIONS ARE APPLICABLE AND
ENFORCEABLE WHATEVER MAY BE PERSONAL LAW BY
WHICH THE PERSONS CONCERNED ARE GOVERNED. (SEE NANAK CHAND V. CHANDRA KLSHORE
(AIR 1970 SC 446). BUT THE PERSONAL LAW OF THE PARTIES IS RELEVANT FOR DECIDING
THE VALIDITY OF THE MARRIAGE AND THEREFORE CANNOT BE ALTOGETHER EXCLUDED FROM
CONSIDERATION. THE MARRIAGE OF A WOMAN IN ACCORDANCE WITH THE HINDU RITES WITH A
MAN HAVING A LIVING SPOUSE IS A COMPLETE NULLITY IN THE EYE OF LAW AND SHE IS
THEREFORE NOT ENTITLED TO THE BENEFIT OF SECTION 125 OF THE CODE OR THE HINDU
MARRIAGE ACT, 1955 (IN SHORT THE 'MARRIAGE ACT'). MARRIAGE WITH PERSON HAVING
LIVING SPOUSE IS NULL AND VOID AND NOT VOIDABLE. HOWEVER, THE ATTEMPT TO EXCLUDE
ALTOGETHER THE PERSONAL LAW APPLICABLE TO THE PARTIES FROM CONSIDERATION IS
IMPROPER. SECTION 125 OF THE CODE HAS BEEN ENACTED IN THE INTEREST OF A WIFE AND
ONE WHO INTENDS TO TAKE BENEFIT UNDER SUB-SECTION (L)(A) HAS TO ESTABLISH THE
NECESSARY CONDITION, NAMELY, THAT SHE IS THE WIFE OF THE PERSON CONCERNED. THE
ISSUE CAN BE DECIDED
ONLY BY A
REFERENCE TO THE LAW APPLICABLE TO THE PARTIES. IT IS ONLY WHERE AN APPLICANT
ESTABLISHES SUCH STATUS OR RELATIONSHIP WITH REFERENCE TO THE PERSONAL LAW THAT
AN APPLICATION FOR MAINTENANCE CAN BE MAINTAINED. ONCE THE RIGHT UNDER THE
PROVISION IN SECTION 125 OF THE CODE IS ESTABLISHED BY PROOF OF NECESSARY
CONDITIONS MENTIONED THEREIN, IT CANNOT BE DEFEATED BY FURTHER REFERENCE TO THE
PERSONAL LAW. THE ISSUE WHETHER THE SECTION IS ATTRACTED OR NOT CANNOT BE
ANSWERED EXCEPT BY REFERENCE TO THE APPROPRIATE LAW GOVERNING THE PARTIES. (C)
CRIMINAL P.C. (2 OF 1974), SS. 125, 127 - MAINTENANCE - ENHANCEMENT -
APPLICATION UNDER S. 125 FILED AT TIME WHEN MAXIMUM LIMIT OF MAINTENANCE WAS
PRESCRIBED - LEARNED COUNSEL FOR RESPONDENT NO.2 SUBMITTED THAT THERE WAS NO
AMENDMENT MADE TO THE CLAIM PETITION SEEKING ENHANCEMENT. WE FIND THAT THIS IS A
TOO TECHNICAL PLEA. AS A MATTER OF FACT. SECTION 127 OF THE CODE PERMITS
INCREASE IN THE QUANTUM. Judgement: ARLJIT
PASAYAT, J. :- Leave granted. 2. A brief reference to the factual position would
suffice because essentially the dispute has to be adjudicated with reference to
scope and ambit of Section 125 of the Code of Criminal Procedure, 1973 (in short
the 'Code'). 3. The case at hand according to appellant is a classic example of
the inadequacies of law in protecting a woman who unwittingly entered into
relationships with a married man. 4. Factual position as projected by the
appellant is as follows :- Appellant claims that she was married to respondent
No.2 some time in 1994 according to the customary rites and rituals of their
caste. Though initially, the respondent No.2 treated her nicely, thereafter he
started ill-treating her and she was subjected to mental and physical torture.
On enquiry about the reason for such a sudden change in his behaviour, the
appellant came to know that respondent No.2 had developed illicit relationship
with a lady named Veenaben.
During the period the appellant stayed with the respondent, she became pregnant
and subsequently, a child was born. As respondent No.2 neglected the appellant
and the child born, an application in terms of Section 125 of the Code was filed
claiming maintenance. The application was filed before the learned Judicial
Magistrate, First Class (hereinafter referred to as the 'JMFC') Himmatnagar.
Respondent No.2 opposed the application by filing written statements taking the
stand that the appellant was not his legally married wife and the child
(respondent No.3) was not his son. He also denied having developed illicit
relationship with Veenaben. He claimed that actually she was married to him more
than 22 years back and two children were born. Their son Hament had died in the
road accident in July 1990. In the Claim Petition name of Veenaben was mentioned
as the legal heir and in the Voters List, Ration Card and Provident Fund
records, Veenaben was shown as
the wife of
respondent No.2. On 23-6-1998 learned JMFC allowed the Claim Petition and
granted maintenance. A criminal revision was filed by respondent No.2 before
learned Additional Sessions Judge, Sabaakatha; Dist. Himmatnagar, who by his
order dated 26-11-1998 set aside the judgment dated 23-6-1998 as passed by the
learned JMFC and remanded the matter to the trial Court for adjudication afresh
after affording an opportunity to respondent No. 2 to cross examine the
witnesses of the appellant. By order dated 31-7-1999, learned JMFC after
considering the matter afresh awarded maintenance to both the appellant and the
child. 5. A Criminal Revision Application No.65/ 95 was filed by respondent No.2
against the order dated 31-7-1999. By order dated 12-7-2001, learned Additional
District Judge, Sabarkatha dismissed the application. . The respondent No.2
filed a Special Criminal Application No.568/2001 before the Gujarat High Court
which by the impugned order held that the
appellant was
not legally wedded wife of respondent No. 2. Reliance was placed on documents
filed by respondent No.2 to conclude that before the alleged date of marriage
between the appellant and respondent No.2, the latter was already married to
Veenaben with reference to the documents produced. However, maintenance granted
to the child (respondent No.3) was maintained and amount as awarded to him i.e.
Rs.350/- was enhanced to Rs.500/-. A direction was also given to pay the
enhanced amount from the date of order of the learned JMFC i.e. 31-7-1999. 6. In
support of the appeal, learned counsel for the appellant submitted that the High
Court has taken a too technical view in the matter. Strict proof about a valid
marriage is not the sine qua non for getting maintenance under Section 125 of
the Code. The documents produced by respondent No..2 to substantiate the plea of
earlier marriage with Veenaben should not have been given primacy over the
clinching evidence adduced
by the
appellant to show that she was unaware of the alleged marriage. Since respondent
No.2 is guilty of fraud and mis-representation, the equity should not weigh in
his favour. Law is intended to protect destitute and harassed woman and rigid
interpretation given to the word 'wife' goes against the legislative intent. In
any event, nothing has been shown by respondent No.2 to show that there is any
customary bar for a second marriage. Customs outweigh enacted law. That being
the position, the order passed by the learned JMFC should be restored. It was
residually submitted that when the amount was claimed as maintenance there was
statutory limitation prescribed at Rs.500/- which has been done away with by
omitting the words of limitation so far as the amount is concerned by amendment
in 2001 to the Cr.P.C. Therefore, taking into account the high cost of living
the quantum of maintenance should be enhanced for the child. 7. In response,
learned counsel for
respondent No.2
submitted that law is fairly well settled regarding the definition of the
expression 'wife' and there is no scope for giving an extended meaning to
include a woman who is not legally married. 8. There may be substance in the
plea of learned counsel for the appellant that law operates harshly against the
woman who unwittingly gets into relationship with a married man and Section 125
of the Code does not give protection to such woman. This may be an inadequacy in
law, which only the legislature can undo. But as the position in law stands
presently there is no escape from the conclusion that the expression 'wife' as
per Section 125 of the Code refers to only legally married wife. 9. The
provision is enacted for social justice and specially to protect women and
children as also old and infirm poor parents and falls within the constitutional
sweep of Article 15(3) reinforced by Article 39 of the Constitution of India,
1950 (in short the 'Constitution' ). The
provision
gives effect to the natural and fundamental duty of a man to maintain his wife,
children and parents so long as they are unable to maintain themselves.. Its
provisions are applicable and enforceable whatever may be personal law by which
the persons concerned are governed. (See Nanak Chand v. Chandra Klshore (AIR
1970 SC 446). But the personal law of the parties is relevant for deciding the
validity of the marriage and therefore cannot be altogether excluded from
consideration. (See Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and
Anr., (AIR 1988 SC 644)) ' 10. There is no inconsistency between Section 125 of
the Code and the provisions in the Hindu Adoptions and Maintenance Act, 1956,
(in short the 'Adoption Act'). The scope of the two laws is different. 11.
Section 125 of the Code at the point of time when the petition for maintenance
was filed reads as follows : "125(1) If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate
minor child, whether married or not, unable to maintain itself, or (c) his
legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality
or injury unable to maintain itself, or (d) his father or mother, unable to
maintain himself or herself, 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, father or mother 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 may from to time direct :
Provided that the Magistrate may order the father of a minor female child
referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not
possessed of sufficient means. Explanation :- For the purposes of this Chapter-
(a) 'minor' means a person who, under the provisions of the Indian Majority Act,
1875 is deemed not to have attained his majority; (b) 'wife' includes a woman
who has been divorced by, or has obtained a divorce from, her husband and has
not remarried." 12. By the Code of Criminal Procedure (Amendment) Act, 2001
(Central Act 50 of 2001) the words 'not exceeding five hundred rupees in the
whole' have been omitted w.e.f. 24-9-2001. 13. In Dwarika Prasad Satpathy v.
Bidyut Prava Dixit and Ann (AIR 1999 SC 3348) it was held that the validity of
the marriage for the purpose of summary proceedings under Section 125 of the
Code is to be determined on the basis of the evidence brought on record by the
parties. The standard of proof of marriage in such proceedings is not as strict
as is required in a trial
of offence under Section 494 of Indian Penal Code, 1860 (in short the 'IPC'). If
the claimant in proceedings under Section 125 succeeds in showing that she and
the respondent have lived together as husband and wife, the Court has to presume
that they are legally wedded spouses, and in such a situation one 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 as to whether
the said procedure was complete as per the Hindu rites, in the proceedings under
Section 125 of the Code. It is to be noted that when the respondent does not
dispute the paternity of the child and accepts the fact that marriage ceremony
was performed though not legally perfect, it would hardly lie in his mouth to
contend in proceedings under Section 125 of the Code that there was no valid
marriage as essential rites were not performed at the time of said marriage. The
provision
under Section 125
cannot be utilized for defeating the rights conferred by the legislature on the
destitute women, children or parents who are victims of social environment. The
provision is a measure of social justice and as noted above specially enacted to
protect women and children and falls within the constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution. 14.. The sections of
statutes calling for construction by courts are not petrified print but vibrant
words with social functions to fulfill. 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. (See Captain
Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807). 15. In
Smt. Yamunabai's case (supra), it was held
that
expression 'wife' used In Section 125 of the Code should be interpreted to mean
only a legally wedded wife. The word 'wife' is not defined in the Code except
indicating in the Explanation to Section 125 its inclusive character so as to
cover a divorcee. A woman cannot be a divorcee unless there was a marriage in
the eye of law preceding that status. The expression must therefore be given the
meaning in which it is understood in law applicable to the parties. The marriage
of a woman in accordance with the Hindu rites with a man having a living spouse
is a complete nullity in the eye of law and she is therefore not entitled to the
benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the
'Marriage Act'). Marriage with person having living spouse is null and void and
not voidable. However, the attempt to exclude altogether the personal law
applicable to the parties from consideration is improper. Section 125 of the
Code has been
enacted in the interest
of a wife and one who intends to take benefit under sub-section (l)(a) has to
establish the necessary condition, namely, that she is the wife of the person
concerned. The issue can be decided only by a reference to the law applicable to
the parties. It is only where an applicant establishes such status or
relationship with reference to the personal law that an application for
maintenance can be maintained. Once the right under the provision in Section 125
of the Code is established by proof of necessary conditions mentioned therein,
it cannot be defeated by further reference to the personal law. The issue
whether the Section is attracted or not cannot be answered except by reference
to the appropriate law governing the parties. 16. But it does not further the
case of the appellant in the instant case. Even if it is accepted as stated by
learned counsel for the appellant that husband was treating her as his wife it
is really inconsequential. It is the
intention of the
legislature which is relevant and not the attitude of the party. 17. In
Smt..Yamunabai' s case (supra) plea similar to the one advanced in the present
case that the appellant was not informed about the respondent's earlier marriage
when she married him was held to be of no avail. The principle of estoppel
cannot be pressed into service to defeat the provision of Section 125 of the
Code. 18. It may be noted at this juncture that the legislature considered it
necessary to include within the scope of the provision an illegitimate child but
it has not done so with respect to woman not lawfully married. However,
desirable it may be, as contended by learned counsel for the appellant to take
note of the plight of the unfortunate woman, the legislative intent being
clearly reflected in Section 125 of the Code, there is no scope for enlarging
its scope by introducing any artificial definition to include woman not lawfully
married in the expression 'wife'. 19. As
noted
by this Court in Vimala (K.) v. Veeraswamy (K.) H1991 air (1991 (2) SCC 375)
when a plea of subsisting marriage is raised by the respondent-husband it has to
be satisfactorily proved by tendering evidence to substantiate that he was
already married. 20. In the instant case the evidence on record has been found
sufficient by the Courts below by recording findings of fact that earlier
marriage of respondent was established. 21. In that view of the matter, the
application so far as claim of maintenance of the wife is concerned stands
dismissed. 22. That brings us to the other question relating to adequacy of the
quantum of maintenance awarded to the child. It is not in dispute that when the
Claim Petition was filed, Rs.500/- was claimed as maintenance as that was the
maximum amount which could have been granted because of the un-amended Section
125. But presently, there is no such limitation in view of the amendment as
referred to above. 23. Learned
counsel for respondent No.2 submitted that there was no amendment made to the
Claim Petition seeking enhancement. We find that this is a too technical plea.
As a matter of fact. Section 127 of the Code permits increase in the quantum.
The application for maintenance was filed on 1 -9-1995. The order granting
maintenance was passed by the learned JMFC on 31-7-1999. The High Court enhanced
the quantum awarded to the child from Rs.350/- to Rs.500/- with effect from the
order passed by learned JMFC. No dispute has been raised regarding enhancement
and in fact there was a concession to the prayer for enhancement before the High
Court as recorded in the impugned judgment. Considering the peculiar facts of
the case, we feel that the amount of maintenance to the child can be enhanced to
Rs.850/- with effect from today. 24.. Learned counsel for the respondent No.2
has submitted that as a humanitarian gesture, the respondent No.2 agrees to pay
a lump sum amount to
settle the
dispute. In case the respondent No.2 pays a sum of rupees two lakhs only within
a period of four months to the appellant, the same shall be in full and final
settlement of the claim of respondent No.3 for maintenance. While fixing the
quantum we have taken note of the likely return as interest in case it is
invested in fixed deposit in a Nationalised Bank, and the likely increase in the
quantum of maintenance till respondent No.3 attains majority.. Till deposit is
made, the quantum fixed by this order shall be paid. If the respondent No.2
wants to make lump sum payment in terms of this order, the amount shall be paid
by the Bank draft in the name of respondent No.3 with appellant as mother
guardian. The amount shall be kept in a fixed deposit with monthly interest
payment facility till respondent No.3 attains majority. 25. The appeal is
accordingly disposed of. Order accordingly.

Shantha Alias Usha Devi and another, Appellants V. B..G. Shivana Nanjappa
Respondents Citation: 2005-SCC-4-468 , Judges: P. Venkatarama Reddi and A.K.
Mathur, J Enactment: Criminal Procedure Code, 1973, S. 125(3) first proviso
Judgement Date: 06/05/2005 HEAD NOTES: A. CRIMINAL PROCEDURE CODE, 1973 - S.
125(3) FIRST PROVISO - LIMITATION OF ONE YEAR TO SEEK RECOVERY OF ARREARS OF
MAINTENANCE - BRIEF FACTS GIVING RISE TO THIS APPEAL ARE THAT THE APPELLANT
SHANTHA @ USHADEVI AND KUSUMA, A MINOR REPRESENTED BY HER MOTHER-GUARDIAN FILED
A PETITION UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE BEING CRIMINAL
PETITION NO. 2 OF 1991 BEFORE THE TRIAL COURT AGAINST THE RESPONDENT CLAIMING
MAINTENANCE. THE SAID CRIMINAL PETITION WAS ALLOWED BY THE TRIAL COURT BY ITS
ORDER DATED 20-1-1993 AWARDING A SUM OF RS 500 TO THE APPELLANT, THE WIFE OF THE
RESPONDENT AND A SUM OF RS 300 TO KUSUMA, THE DAUGHTER FOR MAINTENANCE. THE
APPELLANT FILED
CRIMINAL MISCELLANEOUS PETITION NO. 47 OF 1993 UNDER SECTION 125(3) OF THE CODE
OF CRIMINAL PROCEDURE CLAIMING AN AMOUNT OF RS 5365 AS ARREAR MAINTENANCE
CALCULATED FROM 20-1-1993 (I.E. THE DATE OF THE TRIAL COURT'S ORDER GRANTING
MAINTENANCE) TO 31-8-1993. THE RESPONDENT FILED A CRIMINAL REVISION BEFORE THE
SESSIONS JUDGE, TUMKUR BEING CRL. REVISION PETITION NO. 35 OF 1993 AGAINST THE
ORDER PASSED BY THE TRIAL COURT. THIS REVISION PETITION WAS DISMISSED BY THE
SESSIONS JUDGE BY HIS ORDER DATED 26-6-1997 AFFIRMING THE ORDER PASSED BY THE
TRIAL COURT. THEREAFTER, THE RESPONDENT TOOK UP THE MATTER BEFORE THE HIGH COURT
OF KARNATAKA AT BANGALORE BY FILING A CRIMINAL REVISION PETITION BEING CRL. RP
NO. 2297 OF 1997 AGAINST THE ORDER PASSED BY THE SESSIONS JUDGE, TUMKUR ON
26-6-1997. THE SAID REVISION PETITION WAS DISMISSED BY THE HIGH COURT. AFTER THE
AFFIRMATION OF THE ORDER BY THE HIGH COURT, AN INTERIM APPLICATION BEING IA NO.
1 WAS FILED IN CRIMINAL
MISC. PETITION NO. 47
OF 1993 CLAIMING ARREARS OF MAINTENANCE FOR THE PERIOD FROM 20-1-1993 I.E. THE
DATE OF THE TRIAL COURT'S ORDER TILL THE DATE OF FILING IA NO. 1 I.E. 16-6-1998
FOR A SUM OF RS 46,000. THE RESPONDENT DEPOSITED A SUM OF RS 5365 TOWARDS THE
MAINTENANCE FROM 20-1-1993 TILL 31-8-1993. HOWEVER, IA NO. 1 FILED BY THE
APPELLANT FOR ARREARS OF MAINTENANCE IN CRL. MISC. PETITION NO. 47 OF 1993
CLAIMING MAINTENANCE OF RS 46,000 WAS OBJECTED BY THE RESPONDENT CONTENDING THAT
THE APPELLANT CANNOT CLAIM ARREARS OF MAINTENANCE BEYOND A PERIOD OF ONE YEAR
UNDER FIRST PROVISO TO SECTION 125(3) OF THE CODE OF CRIMINAL PROCEDURE BEING
BARRED BY LIMITATION. THE TRIAL COURT BY ITS ORDER DATED 13-7-2000 DISMISSED IA
NO. 1 BEING BARRED BY LIMITATION. THE APPELLANT THEREAFTER FILED A CRIMINAL
REVISION WHICH CAME TO BE REGISTERED AS CRIMINAL REVISION PETITION NO. 194 OF
2000 BEFORE THE LEARNED SESSIONS JUDGE, TUMKUR. THE SAID CRIMINAL REVISION
PETITION WAS ALLOWED BY THE LEARNED
SESSIONS JUDGE BY
HIS ORDER DATED 23-11-2002 AND THE MATTER WAS REMANDED BACK TO THE TRIAL COURT.
LEARNED SESSIONS JUDGE OBSERVED THAT THERE WAS NO NEED OF FILING A FRESH
PETITION DURING THE PENDENCY OF THE APPLICATION UNDER SECTION 125(3) CRPC FOR
MAINTENANCE WHICH HAS FALLEN DUE FOR THE PERIOD POST-APPLICATION AND IT IS
IMPLICIT IN THE POWERS OF THE COURT TO MAKE AN ORDER DIRECTING THE HUSBAND TO
MAKE PAYMENT OF ARREARS OF MAINTENANCE UP TO THE DECISION WHILE DISPOSING OF THE
APPLICATION FOR RECOVERY OF ARREARS OF MAINTENANCE. THE LEARNED SESSIONS JUDGE
FURTHER OBSERVED THAT IT IS NOT REQUIRED TO FILE A FRESH APPLICATION WHICH MAY
LEAD TO MULTIPLICITY OF LITIGATIONS. LEARNED SESSIONS JUDGE FURTHER HELD THAT IA
NO. 1 FILED IN CRIMINAL MISC. PETITION NO. 47 OF 1993 CLAIMING MAINTENANCE WAS
WITHIN LIMITATION. AGGRIEVED AGAINST THIS ORDER OF THE LEARNED SESSIONS JUDGE,
THE RESPONDENT FILED CRIMINAL REVISION BEING CRL. RP NO. 753 OF 2003 BEFORE THE
HIGH COURT OF KARNATAKA AT
BANGALORE. THE
HIGH COURT ALLOWED THE CRIMINAL REVISION AND SET ASIDE THE ORDER OF THE LEARNED
SESSIONS JUDGE HOLDING THAT THE SAID APPLICATION WAS BARRED BY LIMITATION.
AGGRIEVED AGAINST THIS ORDER OF THE HIGH COURT PASSED IN CRIMINAL REVISION
PETITION NO. 753 OF 2003 ON 11-3-2004 THE PRESENT SPECIAL LEAVE PETITION WAS
FILED BY THE APPELLANTS. IT IS TRUE THAT THE AMOUNT OF MAINTENANCE BECAME DUE BY
VIRTUE OF THE MAGISTRATE'S ORDER PASSED ON 20-1-1993 AND IN ORDER TO SEEK
RECOVERY OF THE AMOUNT DUE BY ISSUANCE OF WARRANT, APPLICATION SHALL BE MADE
WITHIN A PERIOD OF ONE YEAR FROM THE DATE THE AMOUNT BECAME DUE. IN THE PRESENT
CASE, THE APPLICATION, NAMELY, CRL. MISC. PETITION NO. 47 OF 1993 WAS FILED WELL
WITHIN ONE YEAR. AS NO AMOUNT WAS PAID EVEN AFTER THE DISPOSAL OF THE MATTER BY
THE HIGH COURT, THE APPELLANT FILED IA NO. 1 IN CRL. MISC. PETITION NO. 47 OF
1993 WHEREIN THE ARREARS DUE UP TO THAT DATE WERE CALCULATED AND SOUGHT RECOVERY
OF THAT AMOUNT UNDER SECTION
125(3). THUS,
IA NO. 1 WAS FILED EVEN WHEN CRL. MISC. PETITION NO. 47 OF 1993 WAS PENDING AND
NOACTION TO ISSUE WARRANT WAS TAKEN IN