Criminal Revision No.4 of 2002

13th March, 2007

Petitioner Counsel: P. C. PALIWAL
Respondent Counsel: K. N. FAKHRUDDIN,S. S. BISEN

Cases Cited:
Kuntibai w/o. Alakhram Vs. Alakhram s/o. Jaggulal, 1998(2) MPLJ 635 [Para PARA3,5,8]
Ambaram Vs. Jankibai, 1991(2) MPWN 121 [Para PARA3,4,8]
Golla Seetharamulu Vs. Golla Rathanamman, 1991 Cr.L.J. 1533 [Para PARA3,12]
Bhaggobai Vs. State of M.P., 1984 MPWN Note 504 [Para PARA 4,5]
Nanhibai Vs. Netram, 2001(3) MPLJ 170 [Para PARA11]
Bhagwan Dutt Vs. Smt. Kamla Devi, AIR 1975 SC 83 [Para PARA13]
Smt. Savitri Vs. Govind Singh Rawat, AIR 1986 SC 984 [Para PARA14]
Bai Tahira Vs. Ali Hussain, AIR 1979 SC 326 [Para PARA15]

JUDGMENT

-This revision is referred to the larger bench to determine the following question :

"Whether on account of delay in filing the application for maintenance under section 125 of the Code of Criminal Procedure, application is liable to be dismissed?"

2. Right to get maintenance to wife, children and parents who are unable to maintain themselves is given under Chapter IX of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

3. The controversy has arisen on account of conflicting judgments of this Court on this question. In the case of Kuntibai w/o. Alakhram Vs. Alakhram s/o. Jaggulal, 1998(2) MPLJ 635, it is held that the application on the ground of long delay in filing the application for maintenance is liable to be rejected. However, in this case this Court held that besides long delay in filing the application, it has been found by the Courts below that there was no justification for the wife to live separate from her husband and she had sufficient means to maintain herself. She has resources by way of agricultural income, which was sufficient to meet her needs and the application was rejected. However, relying upon the judgment of this Court in the case of Ambaram Vs. Jankibai, 1991(2) MPWN 121 and Golla Seetharamulu Vs. Golla Rathanamman, 1991 Cr.L.J. 1533, it is held that no limitation is prescribed for filing an application for maintenance.

4. In the case of Bhaggobai Vs. State of M.P., 1984 MPWN Note 504, it is held that remedy under section 125 of the Code is intended to be speedy remedy for the protection of a deserted wife or a neglected child from starvation, while the civil liability of the father or the husband to maintain his child or wife has to be determined by the Civil Court in accordance with the personal law applicable to the parties. The functions of the Magistrate and the Civil Court are distinctly different. The Magistrate has to deal with the emergency while the Civil Court is required to enforce strict legal rights according to the personal law of the parties. A wife, who files an application after maintaining herself for 10 or 15 years, certainly is not entitled to get relief under the emergency provisions of section 125 of the Code. The powers vested in the Magistrate under section 125 of the Code are discretionary. If there is inordinate delay in filing an application under section 125 of the Code, by the wife, without there being any cogent reason or explanation for the delay; the Magistrate in the judicious exercise of discretion, would be fully justified in dismissing the application under section 125 of the Code. In the case of Ambaram (supra) it is held that the wife after a period of 12 years of separately residing again started living with the husband and has also conceived a child from him. Thereafter, due to neglect of husband again, the wife was compelled to prefer an application for grant of maintenance. It was held that in these circumstances it cannot be said that the petition was filed belatedly by her and accordingly the wife could not be faulted with therefor.

5. We will consider the question involved in the case and the question whether Bhaggobai and Kuntibai (supra) have laid down the law correctly. In the context it will be useful to reproduce section 125 of the Code.

"125. Order of maintenance of wives, children and parents. - (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 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 allowance, until she attains her female child, if married, is not possessed of sufficient means :

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate may from time to time direct :

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

(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 falls 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 to the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :

Provided 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.

(4) No wife shall be entitled to receive an 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."

6. On bare perusal of the provisions of section 125 of the Code we find that the provisions do not prescribe any period of limitation. The language of section 125(1) is clear and specific. Eventuality arises when any person having sufficient means neglects or refuses to maintain his wife, legitimate or illegitimate minor child, legitimate or illegitimate child (not being married daughter) who has attained majority, his father or mother, unable to maintain herself or himself. Thus, two things which are required to be proved in an application for maintenance namely (i) person having sufficient means neglects or refuses to maintain wife, children or parents and (ii) they are unable to maintain herself or himself.

7. Thus, the word 'unable to maintain herself or himself' is very important. This provision will be attracted only in the event it is established that party applying for maintenance is unable to maintain herself or himself. Cause of action will accrue to the parties when they are unable to maintain himself or herself.

8. In the case of wife, though she has been deserted by her husband and living separately, will always have a right to file an application for maintenance in the event she is unable to maintain herself and her husband is having sufficient means and is neglecting or refusing to maintain her. In some cases it may be possible that husband or father had no sufficient means and when they had sufficient means then application can be filed by the wife, children and parents. Second category cases will be where though wife or parents are living separately but when they are unable to maintain themselves then they have a remedy to claim maintenance. Mere period of delay will not be ground of non-suing them. In the case of Kuntibai (supra) this position is considered in para 8 of the judgment while considering the scope of the judgment in the Ambaram (supra). Where the circumstances show that there is no delay on the part of the wife, the application cannot be rejected. Sufficient explanation should be on record.

9. Chapter IX of the Code is a self contained Code. It relates to filing of the application. It gives circumstances when application will not be maintainable. The procedure of trying the application is provided under section 126 of the Code and the alteration in allowance or modification of order is provided under section 127 of the Code. Section 128 of the Code relates to enforcement of order of maintenance. Thus, Chapter IX is a self contained Code. Sub-sections (4) and (5) of section 125 has given the circumstances when wife is not entitled for maintenance. Sub-sections (4) and (5) of section 125 nowhere provided that mere delay in filing the application will be a ground to non suit the wife from receiving the maintenance. Under sub-section (4) it is provided that no wife shall be entitled to receive an allowance from her husband 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. Thus, only on the grounds enumerated under sub-section (4) of section 125 of the Code, application for maintenance can be rejected. Even if maintenance is granted then also if proof is given that any wife in whose favour an order has been passed is living in adultery or without sufficient reason refuses to live with her husband, or living separately by mutual consent, the Magistrate may cancel the order.

10. Thus, this provision is for grant of maintenance to the wives who are unable to maintain themselves. So the order can be passed when it is proved that wife is unable to maintain herself. The aims and object of section 125 are crystal clear and the ingredient when application can be allowed is that wife is unable to maintain herself and her husband has 'sufficient means' and is wilfully neglecting to maintain her. Similarly this provision is applicable to children and parents. What is required to be seen by the Magistrate is whether wife, parents or children are unable to maintain themselves. No period of limitation is prescribed in the Code. Inordinate delay in filing the application will not be a ground to reject the application as cause of action accrues to the applicant everyday when person having sufficient means neglects or refuses to maintain his wife, parents or children.

11. Division Bench of this Court in Nanhibai Vs. Netram, 2001(3) MPLJ 170, has held in para 28 of the judgment that section 125 of the Code is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. It is held in para 28 as under :

"28. It cannot be disputed or denied that section 125 Criminal Procedure Code is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. There is no doubt that sections of words with social functions to fulfil. 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, without doing annihilation to the object and plain language used in section 125(3), Criminal Procedure Code."

12. This question came up for consideration before the Division Bench of Andhra Pradesh High Court in the case of Golla Seetharamulu Vs. Golla Rathanamma (supra). In this case it is specifically held that unless the restrictions mentioned in sub-section (4) of section 125 of the Code are proved by the husband, the applicant will have a right to claim maintenance. Mere delay on the part of wife, parents or children is not sufficient to hold that the applicants have waived their right. We may clarify that there is no waiver against the statutory right.

13. Apex Court in the case of Bhagwan Dutt Vs. Smt. Kamla Devi and another, AIR 1975 SC 83, has held as under :

"The object of the provisions of sections 488, 489 and 490 being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirement of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments".

14. In the case of Smt. Savitri Vs. Govind Singh Rawat, AIR 1986 SC 984, it is held as under :

"Having regard to the nature of the jurisdiction exercised by a Magistrate under section 125, the said provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to pending final disposal of the application."

15. In the case of Bai Tahira Vs. Ali Hussain, AIR 1979 SC 326, it is held that neglect is the sine qua non for the application under section 125 of the Code. The wife must be able to prove that she had been neglected. The proceeding may not operate as final verdict, a decisive one, in a civil proceeding between the parties for determining the issues for declaration as to legitimacy of children and related reliefs but it cannot be said that when the wife is unable to maintain herself, her application would be thrown at the threshold or not be entertained or allowed as she has come to Court at a belated stage.

16. Considering the spirit and intention of the legislature we hold that there is no period of limitation to entertain the application under section 125(1) of the Code. Application cannot be thrown out at the threshold. If husband, son or father neglects or refuses to maintain their wife, parents or children respectively, the application will not be thrown at the threshold unless the husband is able to prove the grounds mentioned under sub-section (4) of section 125 of the Code. Code nowhere provides for rejecting the application on the ground of delay. With due respect, we hold that the earlier judgments have not laid down the correct law and the question is answered as under :

"that the application for maintenance after inordinate delay is maintainable and it cannot be thrown out after the applicant proves that he or she, as the case may be, is not in the position to maintain himself or herself."

Ordered accordingly.