|Citation||AIR 2015 SC 2025|
|Court||Supreme Court of India|
|Bench||Chief Justice Dipak Misra and Justice Prafulla C. Pant|
|Act||Code of Criminal Procedure|
A married couple should treat each other in a respectful manner. Violence should be avoided among each other for the sake of peace. If the married couple are not happy with each other they should sort out between each other and divorce should come later. If their problems are not getting solved, the divorce can be filed and the husband has a duty to give a proper maintenance to the wife. Maintenance should be given in such a manner that a woman should be able to survive with that amount. It shouldn’t be very less. The court should also look at the situation of the person and then decide.
The petitioner married ShahidKhan on 26-4-1992 and she was staying in the matrimonial home and she was prohibited from talking to others and the husband demanded a car from her family and also started harassing her. At a certain point of time she was sent to the parental home where she was forced to stay for almost three months. The husband did not come back to take her back to matrimonial home, but she returned with the fond and firm hope that the bond of wedlock would be sustained and cemented with love and peace but as the misfortune would have it, the demand for the vehicle continued and the harassment of wife continued and it was used as weapon for the fulfillment of the demand. In due course, she came to know that the husband had illicit relationship with another woman and he wanted to marry her. The wife out of curiosity asked about this, she was assaulted. The situation got worse and it was unbearable for her to live in the matrimonial home. She was sought help from her parents who came and took her to parental home at Lucknow where she availed treatment. Being ill-treated and in a way suffering from fear psychosis she took shelter in the house of her parents and when all her hopes got shattered for reunion, she filed an application for grant of maintenance at the rate of Rs.4000 /- per month on the foundation that husband was working on the post of Nayak in the Army and getting a salary of Rs.10,000 /- approx. apart from other perks
The application for grant of maintenance was resisted with immense vigour by the husband disputing all the averments pertaining to demand of dowry and harassment and further alleging that he had already given divorce to her on 18.6.1997 and has also paid the Mehar to her.A reply was filed by the wife stating that she had no idea of divorce nor she received an amount of Mehar.
During the proceeding in the family court of Lucknow the wife appellant examined herself and the husband examined four witness including himself. The family court accepted the maintainability under Section 125 CrPC as the applicant was a Muslim woman and came to hold even after the divorce the application of the wife under Section 125 CrPC was maintainable in the family court. The court directed that a sum of Rs.2500/- should be paid as monthly maintenance allowance from the date of submission of application till the date of judgment and thereafter Rs.4000/- per month from the date of judgment till the date of remarriage.
The aforesaid order passed by the learned Family Judge came to be assailed before the High Court in Criminal Revision wherein, the High Court after adumbrating the facts referred to the decisions in Anita Rani v. Rakeshpal Singh (1991 (2) Crimes 725 (All)), Dharmendra Kumar Gupta v. Chander Prabha Devi (1990 Cr.L.J. 1884), Rakesh Kumar Dikshit v. Jayanti Devi (1999 (2) JIC, 323 (ACC)), Ashutosh Tripathi v. State of U.P. (1999 (2) 763, Allahabad J.I.C), Paras Nath Kurmi v. The Session Judge (1999 (2) JIC 522 All)and Sartaj v. State of U.P. and others (2000 (2) JIC 967 All) and came to hold that though the learned principal Judge, Family Court had not ascribed any reason for grant of maintenance from the date of application, yet when the case for maintenance was filed in the year 1998 decided on 17.2.2012 and there was no order for interim maintenance, the grant of Rs.2500/- as monthly maintenance from the date of application was neither illegal nor excessive. The High Court took note of the fact that the husband had retired on 1.4.2012 and consequently reduced the maintenance allowance to Rs.2000/-from 1.4.2012 till remarriage of the appellant herein. Being of this view the learned Single Judge modified the order passed by the Family Court. Hence, the present appeal by special leave, at the instance of the wife.
- Whether High Court’s order of reducing maintenance allowance was sustainable?
2. Whether there was justification to reduce maintenance?
Arguments from Petitioner
- Section 125 CrPC is applicable to the Muslim women and the Family Court has jurisdiction to decide the issue. The High Court has fallen into error by opining that the grant of maintenance at the rate of Rs.4,000/- per month is excessive and hence, it should be reduced to Rs.2000/- per month from the date of retirement of the husband i.e. 1.4.2012 till her re-marriage.It is also contended that the High Court failed to appreciate the plight of the appellant and reduced the amount and hence, the impugned order is not supportable in law.
- First, we deal with the applicability of Section 125 CrPC to a Muslim woman who has been divorced. In Shamim Bano v. Asraf Khan[i], after referring the Constitution Bench decisionin Danial Latifi v. Union of India[ii]had opined as follows: –
- The aforesaid principle clearly lays down that even after an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code. We may note that while taking note of the factual score to the effect that the plea of divorce was not accepted by the Magistrate which was upheld by the High Court, the Constitution Bench opined that as the Magistrate could exercise power under Section 125 of the Code for grant of maintenance in favour of a divorced Muslim woman under the Act, the order did not warrant any interference. Thus, the emphasis was laid on the retention of the power by the Magistrate under Section 125 of the Code and the effect of ultimate consequence.
- Slightly recently, in Shabana Bano v. Imran Khan (2010) 1 SCC 666), a two-Judge Bench, placing reliance on Danial Latifi (supra), has ruled that the appellant’s petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 CrPC cannot be restricted for the iddat period only.
- On a perusal of the order passed by the Family Court, it is manifest that it has taken note of the fact that the salary of the husband was Rs.17,654/- in May, 2009. It had fixed Rs.2,500/- as monthly maintenance from the date of submission of application till the date of order i.e. 17.2.2012 and from the date of order, at the rate of Rs.4,000/- per month till the date of remarriage. The High Court has opined that while granting maintenance from the date of application, judicial discretion has to be appropriately exercised, for the High Court has noted that the grant of maintenance at the rate of Rs.2,500/- per month from the date of application till date of order, did not call for modification.
- 12. The aforesaid finding of the High Court, affirming the view of the learned Family Judge is absolutely correct. But what is disturbing is that though the application for grant of maintenance was filed in the year 1998, it was not decided till 17.2.2012. It is also shocking to note that there was no order for grant of interim maintenance. It needs no special emphasis to state that when an application for grant of maintenance is filed by the wife the delay in disposal of the application, to say the least, is an unacceptable situation. It is, in fact, a distressing phenomenon. An application for grant of maintenance has to be disposed of at the earliest. The family courts, which have been established to deal with the matrimonial disputes, which include application under Section 125 CrPC, have become absolutely apathetic to the same.
Arguments for Respondent
The aforesaid aspects have gone uncontroverted as the respondent-husband has not appeared and contested the matter. Therefore, we are disposed to accept the assertions. This exposition of facts further impels us to set aside the order of the High Court.
Section 125 Crpc
- In today’s world, it is extremely difficult to conceive that the respondent would be in a position to manage within Rs. 2,000 per month. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. As long as the wife is held entitled to grant of maintenance within the parameters of s. 125 of the Code of Criminal Procedure, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home.
- Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and have no acceptability in law. It is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved reduction. It only reflects the non-application of mind. Hence, this court was unable to sustain the said order.
A woman should always receive a proper care from her husband. If the Husband isn’t treating her well, she always a right to file a divorce and receive a proper maintenance before re-marriage. The maintenanceshould be reasonable for the basic needs. It shouldn’t be very less and no court in future should pass an order like High Court which ultimately put’s the risk of the life of woman in danger as she cannot afford much with such less amount.
[i]Shamim Bano v. Asraf Khan, 2014 (2) ACR 1857 (SC)
[ii]Danial Latifi v. The Union Of India, (2001) 2 ALT (CRI) 327