Maintenance for self and daughter

@ Vijay Raj Mahajan

Dear Sir, 

I hereby take opportunity to thank you for the guidence i received through your answers at : YAHOO ANSWERS.

ur views were very helpful.

thanx.

@Adv. Chandu. I not only give Advise but also help him win case if he comes to me despite having precedents against his case because I don't rely on precedents but on logic to win cases.  I know law is art of possible, there are no hard and fast rules with regard to which way a judge should lean because every case is unique in terms of facts and circumstances.

When law is well settled on a certain legal point, it will become binding precedent and this precedent can be disturbed by the higher judicial forum only.  Even then, if any one says that he will not follow the legal precedents and by his sheer logic will fight the case before the same judicial forum in the name of facts differ from case to case, it costs a lot to the litigant.  For example, the hon'ble High Court of Delhi upheld the vires of Domestic Violence Act, but if some one says that he will challenge the vires of DV Act before the same High Court, then it is futile and costly exercise.  If such person is confident, he can go to Supreme Court only.  Similarly in the case of RCR decree, the High Courts have consistently held that the defaulting party can get the divorce decree one year after passing of RCR decree, by not compling itself.  The courts held that it is not getting benefit of his / her own fault.  A judge who moves away from the settled precedents by excusing himself on the pretext that facts and circumstances of the each case are different, will encourage judicial indiscipline and create chos in the justice system.  One more example I say, that when in HMA, there is no ground of irretirvable breakdown of marriage and the Supreme Court's three judge bench gave clear cut warning to all the High Courts for granting divorce on that ground and directed them not to do so.  Even then, Uttarakhand's division bench comprising of one justice Ms. Nirmal (who is facing corruption charges for receiving the lakhs of rupees while presiding the bench in Punjab and Haryana High Court) gave divorce on that ground without bothering about SC dictum.  Rest it is upto you, whatever advice you give, without bothering about precedents and bringing your own logic and the consequences the litigants may face at the end of the case.    

Dear queriest,

You asked whether the maintenance  will be given from the date of application or from the date of the order.  I attach a criminal appeal, where trial court ordered maintenance from the date of order and the appellate court modified the order by granting maintenance from the date of application. 

No circumstance has been alleged in the instant case from which it could be said that the respondent was trying to take advantage of her own wrong. Section 13(1A)(ii) of Hindu Marriage Act 1955 allows either party to a marriage to present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified, in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (1A) was introduced in section 13 by section 2 of Hindu Marriage (Amendment) Act 1964. Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce. The party against whom the decree was passe(, was not given that right. The relief which is available to the spouse against whom a decree for restitution of conjugal rights has been passed cannot reasonably be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a "wrong" within the meaning of s. 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Mere non-compliance with a decree for restitution does not constitute wrong within the meaning of section 23(1)(a).

Dharmendra Kumar vs Usha Kumar on 19 August, 1977

Another decision to which our attention was drawn is also a Bench decision of the Andhra Pradesh High Court in the case of Geeta Laxmi v. G.V.R.K. Sarveswara Rao. There on the admitted misconduct of the husband is not only in not complying with the decree for restitution of conjugal rights but ill- treating the wife and finally driving her away from the house, it was held that the husband was not entitled to a decree under Section 13(1A) of the said Act in view of the wrong as contemplated under Section 23(1) (a) of the Act.

Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984

In the present case the husband remained irresponsible towards his wife and daughter as well and refusing to even pay a penny.  If RCR is passed in favor of wife, it is likely that he will continue to commit the same mistake with regard to being irresponsible towards his daughter. If he behaves responsibly towards wife and daughter after RCR is passed in favor of wife though not complying with the order, the wife can always seek relief under Sec.23(2) of HMA stating, as he is now coming forward to take responsibility of his daughter there is hope that he will change in due course of time, hence reconciliation is possible.  It is duty of court to make every effort for reconciliation under Section 23(2) and take the plea of wife into consideration. If he does not behave responsibly towards daughter by paying money to her welfare, then it is misconduct serious enough to justify denial of the relief of divorce to him if he applies.  So I believe where husband has proved track record of being irresponsible towards spouse and child, it is highly impossible for him to get relief after one year of passing of RCR decree under Sec.13(1A).

Some authorities on RCR:

1. Raj Kumari Vs. Chander Lal I (1985)DMC 225 (P&H)

Husband turning his wife out - wife applyig against husband for rcr and obtaining decree against husband.  Husband not complying with decree and not prepared to keep her as his wife - Husband applying for divorce on ground of restituion having not taken place for period of over one year after decree - Husband not guilty of his own wrong within the meaning of Sectin 23 and is entitled to decree of divorce.

2.Naresh Kumari vs. Dharm Pal Gulati (1985)DMC 128 (P&H)

Husband's petition for divorce on the ground that there is no resumption of cohabitatio after a decree for restitution of conjugal rights - wife pleading husband wants to take advantage of his own wrong - instance given of the period before passing of decree under sectin 9 - whether husband is entitled to a decree for divorce u/s 13-IA (ii)-Yes.

3.  Bimla alias Bimlesh V/ s. Yogeshwar Tyagi II(1984)DMC 442 (P&H)

Wife getting RCR decree - Husband not complying it - Husband then moving for divorce u/s. 13(1-A)(ii)-Whether it can nbe said that husband is taking advantage of his own wrong within the meaning of sectinn 23 (1)(A) OF THE Act?   NO. (PARA 5) - Whether refusal for reconciliation comes within the ambit of the words "misconduct serious enough" disentitling the petitioner to a decree of divorce? NO.

SO WHY TAKE RISKS WHEN HUSBAND HIMSELF WANTS DIVORCE AND WIFE DOES NOT WANT TO GIVE DIVORCE.  IN THOSE CASES, THE WIFE SHOULD NOT BE ADVISED TO FILE RCR CASES, AS THE ERRING HUSBAND MAY GET ADVANTAGE OF THIS.  

SO WHY TAKE RISKS WHEN HUSBAND HIMSELF WANTS DIVORCE AND WIFE DOES NOT WANT TO GIVE DIVORCE.  IN THOSE CASES, THE WIFE SHOULD NOT BE ADVISED TO FILE RCR CASES, AS THE ERRING HUSBAND MAY GET ADVANTAGE OF THIS. 

It is a good question.  Refer "Bombay High Court
Vijendra B. Singh vs Uma Vijendra Singh on 21 April, 2010

The petitioner is the husband and the respondent is the wife. They got married on 22nd April 1996. In the year
1998 the respondent-wife filed a petition for restitution of conjugal rights under section 9 of the Hindu
Marriage Act, 1955 (hereinafter referred to as "the said Act"). In the said petition, a decree of restitution of
conjugal rights was passed on 3rd October 2002 .As the said decree remained unexecuted, the
petitioner-husband filed a petition for divorce under section 13(1-A)(ii) of the said Act for a decree of divorce. The learned Judge of the Family Court dismissed the said petition for divorce by judgment and decree dated 23rd August 2006.

A Family Court appeal preferred by the petitioner for challenging the said decree is pending in this Court. The said appeal has been admitted. An application for execution was made by the respondent-wife for execution of the decree for restitution of the conjugal rights. By the impugned order, the learned Judge of the Family Court directed that the petitioner-husband shall obey the decree of restitution of conjugal rights within a period of one month from the date of impugned order i.e. 6th November 2009. The learned Judge directed that upon failure of the petitioner to obey the said decree within the time prescribed under the said order, he shall pay an amount of Rs.20,000/- p.m. to the respondent-decree holder from the date of passing the decree of restitution of the conjugal rights.

From the above it is evident that Court has powers to enforce RCR even by attaching the property of the spouse against whom the RCR is passed. That is one reason why RCR should be filed. 

Read in the same judgment:

I have given careful consideration to the submissions. There is no dispute about the decree for restitution of
conjugal rights passed on a petition filed by the respondent which has attained finality. The decree was passed on 3rd October 2002. There are two provisions relating to execution of such a decree. The said two provisions are Rule 32 and Rule 33 of Order XXI of the said Code. Before proceeding further, it must be noted here that in view of Section 21 of the said Act, the proceedings under the said Act shall be regulated as far as may be by the said Code. The decree for restitution of conjugal rights was passed by a Family Court established under the Family Courts Act, 1984. Under section 10 of the Family Courts Act, 1984, the provisions of the said Code apply to the proceedings before the Family Court subject to provisions of said Act of 1984. Section 18 of the said Act of 1984 provides that a decree or order 5 passed by a Family Court shall have same effect as a decree or order of a Civil Court and shall be executed in the same manner as is prescribed by the said Code.

We have to approach any case in view of facts and circumstances which are peculiar to that case.  In this case, a daughter is there and there is proven track record of husband ignoring the welfare of the child.  Hence there is every right for the petitioner to seek relief under Rule 32 and Rule 33 of Order XXI of CPC.

The peculiar facts and circumstances of this case show that there is already a serious misconduct (in terms of totally neglecting the welfare of wife and daughter) which will continue even after filing of RCR.  If it does not continue, the wife can seek relief under Sec.23(2) by praying reconciliation is possible as the husband is showing the signs of taking responsibility after the decree of RCR is granted by court in her favor. That way she can prevent divorce under Sec.13(1A). 

In the case that referred above the wife is an earning member despite that court ordered for payment of Rs.12000/- wef from 06-oct-2007 (HC modified earlier order for Rs.20000/-).  That is another similarity between the present case and the above referred case.