nsk.shimoga (Engineer) 25 September 2011

Regarding child maintenance

Hello All,

I have a seen a HC judgement in this site which says "No child maintenance if child refuses to stay with father or if mother refuses father to see the child". If anyone has judgement on this, please do post it.

Thanks and Regards,

shimoga

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3 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA) 25 September 2011

https://www.indiankanoon.org/doc/1980982/

Kolkata High Court (Appellete Side)
Smt. Mousumi Banerjee vs Sri Bidyut Kumar Banerjee on 11 September, 2009

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA

Appellate/Revisional/Civil Jurisdiction

Present:

The Hon'ble Mr. Justice Bhaskar Bhattacharya

And

The Hon'ble Mr. Justice Prasenjit Mandal

F.A. 07 of 2007

Smt. Mousumi Banerjee

Versus

Sri Bidyut Kumar Banerjee

For the Appellant-Wife: Mr. Probal Mukherjee, Mr. Soma Priya Chowdhury.

For the Respondent-Husband: Mr. Gopal Ghosh, Mr. Om Narayan Rai.

Heard on: 20.08.09. & 27.08.09

Judgment on: 11th September, 2009.

Bhaskar Bhattacharya, J.:

This appeal is at the instance of a wife in a suit for divorce on the ground
of cruelty and is directed against the judgment and decree dated 16th May, 2005
passed by the Additional District Judge, Third Court, Barassat in Matrimonial
Suit No.17 of 2002 by which the learned Trial Judge granted the decree for
divorce.

Being dissatisfied, the wife has come up with the present first appeal.
The husband filed a suit being Matrimonial Suit No.1294 of 2001 in the Court of
the learned District Judge, Barasat for divorce on the ground of cruelty. The
said suit was subsequently transferred to the Court of the learned Additional
District Judge, Third Court, Barasat and was renumbered as Matrimonial Suit
No.17 of 2002.

The case made out by the husband may be summed up thus: (a) After the
marriage of the parties, they started staying together at the house of the
husband at 12/1, Mahajati Nagar, Birati and immediately after the marriage, the
trouble started in the family of the husband at the instigation of the mother
of the wife who used to visit the house of the husband quite often. On her
advice, the wife stated misbehaving with the husband and his parents and the
main object of the mother of the wife was to separate the husband from his old
parents or to make him a domesticated son-in-law in the house of the wife at
Salt Lake. (b) In the meantime, a child was born on 26th November, 1994 but
the wife at the instigation of her mother deprived the husband and his parents
from the love and affection of the child. The wife left the matrimonial home
with her child without informing the parent of the husband and continued to
stay at Salt Lake. After long persuasion and through the intervention of the
Mahila Samity, although the wife returned to her matrimonial home, when the
parents of the husband approached the child, the wife reacted violently and she
denied the access of the child to the parents of the husband and again left the
matrimonial home on 19th April, 1996 without informing the husband and his
parents and then came back on 3rd May, 1996. Thereafter, the wife again left
the matrimonial home on 15th August, 1996 without any information and came back
after a short span and finally on 14th October, 1996 she left without informing
anybody just leaving a sheet of paper indicating her departure. The husband
approached the respondent at her residence at Salt Lake for returning to her
matrimonial home which she flatly refused. As a result, the husband filed a
proceeding for restitution of conjugal right under Section 9 of the Hindu
Marriage Act. However, the said petition was ultimately withdrawn by the
husband. The wife, however, served a notice to the employer of the husband
making baseless allegation that amount of alimony was due to her under the
order of the Court and she took step for attachment of the salary. She also by
going to the office of the husband abused him in the presence of his colleagues
thereby affecting his social status and dignity in the esteem of his
colleagues. Ultimately, the wife on 10th August, 2001 again came back to the
matrimonial home being armed with an order under Section 144 of the Cr.P.C.
with the help of police by occupying the entire ground floor consisting five
rooms by denying access to the husband and his parents in the ground floor. The
respondent also used to threat the husband of initiating proceeding under
Section 498A of the Indian Penal Code; as a result, the husband with his parents
had left the place and started living in a rented house.

The suit was contested by the wife by filing written statement denying the
material allegation made in the petition for divorce and according to her, the
mother of the husband subjected the wife to cruelty and also manhandled her
during her stay in the matrimonial home. According to her, she was abused in
filthy language by the father of the husband. It was denied that she had
voluntarily abandoned her matrimonial home on 14th October, 1996. She expressed
her desire to stay in her matrimonial home with the male child. As indicated
earlier, the learned Trial Judge on the basis of evidence on record came to the
conclusion that the husband has proved cruelty on the part of the wife and
consequently, granted a decree for divorce. Being dissatisfied, the wife has
come up with the present first appeal. After hearing the learned counsel for
the parties and after going through the materials on record, we find that it
has been well established from the Exbt.3, the handwritten note of the wife,
that she had left the house without disclosing the reason. The learned Trial
Judge, as it appears from the judgment impugned, rightly recorded that the
mother of the wife made deliberate false statement on oath before the Court at
the time of deposition. She stated that she was very much disappointed in the
family of the applicant. She openly expressed that her daughter had no duty to
take care of the old parents. The wife in her evidence stated that she did not
like her in-laws and wanted her husband separately. The learned Trial Judge has
further found that in spite of specific direction for production of the child
in the Court, the wife did not give access of the son to the husband. The
learned Trial Judge has further found that a false Money Execution Case No.64
of 2000 was filed by the wife for issue of warrant of arrest against the
husband and the same was issued by the Judicial Magistrate but the learned
District Judge, Barasat in Criminal Revision Case No.438 of 2001 recalled said
warrant of arrest with a finding that there was no such due. It further appears
that after leaving the house she came back with police and occupied the entire
ground floor consisting of five rooms and threatened the husband with
initiation of proceeding under Section 498A of the Indian Penal Code, as a
result, the husband was compelled to take shelter in a rented house leaving his
own house.

From the aforesaid material it is clear that the act of the wife
amounted to cruelty within the meaning of Section 13(1) (i)(a) of the Hindu
Marriage Act and we find no reason to take different view from the one taken by
the learned Trial Judge.

At the time of hearing of this appeal, the husband produced before us his
monthly salary certificate which shows that his monthly income is Rs.27,000/-
and odd and after deduction of income-tax and other necessary deduction we can
safely treat his monthly income to be Rs.25,000/-. In such circumstances, we are
of the view that the wife should be entitled to get a onetime permanent alimony
of Rs.6 lakh from the husband in full satisfaction of the claim for future
alimony.

The only son of the parties is living with the wife and is a student of class
IX. After taking into consideration the expenditure of his studies and other
maintenance, we, for the time being, direct the husband to pay a sum of
Rs.5,000/- for the maintenance of the son on condition that the son will stay
with the husband for a day in a week. The husband should pick up the son from
his wife's house on every Saturday evening and return the child in the afternoon
of Sunday. He will go on sending the money by account payee cheque in the joint
account of the mother with the son. If the son refuses to comply with the
direction of staying with his father for a day in a week, he will not be
entitled to get the maintenance ordered by us by this order.

We, therefore, affirm the decree for divorce on the ground of cruelty and in
addition, grant a decree for permanent alimony for the wife and also for the
maintenance of the only child of the parties as indicated above. The appeal
is, thus, disposed of with the aforesaid observation. In the facts and
circumstances, there will be, however, no order as to costs.

(Bhaskar Bhattacharya, J.)

I agree.

(Prasenjit Mandal, J.)

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

nsk.shimoga (Engineer) 26 September 2011

Thanks a lot for this.

Nitish Banka (lawyer) 22 March 2018

LAND MARK SC JUDGEMENT ON INTERIM MAINTENANCE/MAINTENANCE 125 crpc

Posted by: nitish788 Categories: Family Law Landmark Judgements

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LAND MARK SC JUDGEMENT ON INTERIM MAINTENANCE/MAINTENANCE 125 crpc

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www.lexspeak.in

Supreme Court Cases 316-2008

Chaturbhuj Vs. Sitabai,

Dismissing the appeal, the Court

HELD: 1.1. The object of the maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy by compelling those who can
provide support to those who are unable to support themselves and who have a
moral claim to support. The phrase “unable to maintain herself” would mean that
means available to the deserted wife while she was living with her husband and
would not take within itself the efforts made by the wife after desertion to
survive somehow. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It
provides a speedy remedy for the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights and natural duties of a man
to maintain his wife, children and parents when they are unable to maintain
themselves. [Para 5] [586-B, C,D, E]

Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2 Supreme 503, relied on.

1.2. Under the law, the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case, there is
no dispute that the appellant has the requisite means. But there is an
inseparable condition which has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his wife. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the personal
income of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.
The test is whether the wife is in a position to maintain herself in the way she was used to at the place of her husband.[Paras 6, 7 and 8] [583-F, G; 584-A, B, C]

Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated.

2. The trial Court, the Revisional Court and the High Court analysed the
evidence and held that the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse. That being so
there is no scope for interference in this appeal. [Para 9] [584-D, E]

Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant.

Shashi Bhushan Kumar for the Respondent.

Code of Criminal Procedure, 1973:

s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136.

s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,1950-Articles 15(3) and 39-Social justice.

Words and phrases: “unable to maintain herself“-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973.

The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself.

The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent.

Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant’s monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself.

Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal.

2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1)JT78

CASE NO.:Appeal (crl.) 1627 of 2007

PETITIONER:Chaturbhuj

RESPONDENT:Sita Bai

DATE OF JUDGMENT: 27/11/2007

BENCH:Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT:J U D G M E N T

CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short ‘Cr.P.C.’). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the
house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.

3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant’s monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.

4. Section 125 Cr.P.C. 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 time 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 (9
of 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.”
[“(2) Any such allowance for the maintenance or
interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses
of proceeding, as the case may be.”;]
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant
for levying the amount due in the manner provided
for levying fines, and may sentence such person, for
the whole, or any port of each month’s allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section
unless application be made to the Court to levy
such amount within a period of one year from the
date on which it became due:
Provided further that if such person offers to
maintain his wife on condition of her living with
him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal
stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied
that there is just ground for so doing.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife’s
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] from her
husband under this section if she is living in
adultery, or if, without any sufficient reason, she
refuses to live with her, husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in
adultery, or that without sufficient reason she
refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate
shall cancel the order.”

5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase “unable to maintain herself” in the
instant case would mean that means available to the deserted
wife while she was living with her husband and would not take
within itself the efforts made by the wife after desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
‘Constitution’). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.

7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife. It is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.

8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself i
n the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression “unable to maintain herself” does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.

9. In the instant case the trial Court, the Revisional Court and the High Court have analysed the evidence and held that the respondent wife was unable to maintain herself. The conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal which is dismissed.