In which of the following case Supreme Court held that illegitimate child is entitled for maintenance US 125 of CRPC? [2009 A.P.C.J.H.C.]

Maintenance Order under Domestic Violence Act cannot be substituted by Maintenance under Section 125 CrPC- Bombay HC

Case name: Prakash Babulal Dangi v. The State of Maharashtra

In this case, the wife had initially claimed maintenance under Section 125 CrPC and the Court had awarded maintenance of Rs. 6000 to the wife and Rs. 4000 to her minor daughter. While the case under Section 125 of CrPC was pending, a case was filed and an interim maintenance was sought by the wife under Domestic Violence Act, whereby the husband was directed to pay maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.

In view of the aforesaid context, the Bombay High Court made reference to Section 36 of Domestic Violence Act, 2015 which entails that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law and held that that the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC.

Maintenance under S125 CrPc

125. Order for 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 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.

Present criminal revision case was filed against the Judicial Magistrate’s order.

Petitioner’s second wife i.e. respondent 2 states that she got married to the petitioner as per the Hindu Customs and with the consent of his first wife Jeyalakshi and the family members.

Further, she added that she gave birth to a female child i.e. respondent 1.

· * After some time, the petitioner started harassing the respondent-wife and respondents which resulted in the respondent-wife leaving the house.

· * On filing a complaint before the All Women Police Station wherein the petitioner agreed to pay maintenance to the respondents but later he denied to pay the same.

· * In view of the above, the respondent-wife sought maintenance before the Magistrate.

· * Aggrieved with the magistrate’s decision, the petitioner/husband filed the revision case.

· * Petitioner raised the ground that the respondent-wife did not elicit through any evidence that the petitioner had sufficient means to pay the maintenance to respondents.

Not Entitled to Maintenance | Magistrate

Trial Court held that the second respondent was not entitled to any maintenance as she was not the legally wedded wife as per the provisions of the Hindu Marriage Act, 1955 when the first marriage of the petitioner was still in force.

Avoidance to maintain the child

It appeared that the revision petitioner used to run the shop in his first wife’s name, however, he claimed that he was working as an employee for a salary of Rs 3,500. Thus the respondent took such a plea only to avoid the payment of maintenance of the child.

For the petitioner’s plea that he had no means to pay the maintenance, Supreme Court’s decision in Sumitra Devi v. Bhikan Choudhary, (1985) 1 SCC 637 was referred, wherein following was held:

“…under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance. Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”

Even in Supreme Court’s decision of Bakulbhai v. Gangaram, (1988) 1 SCC 537, it was held that,

“…even an illegitimate child is entitled for maintenance.”

Bench also referred to Section 125 of CrPC which provides that an illegitimate child is entitled to maintenance and the same has been reiterated by the Supreme Court in a number of cases.

Hence,

Order for maintenance of wives, children and parents

Section 125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this Section, it is given the name of parties who are entitled to get maintenance, essential ingredients to claim and get maintenance and order of the first-class magistrate.

In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgement favouring maintenance given to an aggrieved divorced Muslim woman.

Who can claim and get maintenance?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According to Section 125(1), the following persons can claim and get maintenance:

Wife from his husband,

1. Legitimate or illegitimate minor child from his father,

2. Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and

3. Father or mother from his son or daughter.

Wife

In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition of maintenance under Section 125 of the Cr.PC.

In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court held that marriage of women in accordance with Hindu rites with a man having a living spouse is completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the Cr.PC.

In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the Supreme Court held that maintenance can be allowed to the wife when her husband is impotent.

A wife can claim and get maintenance from her husband in the following conditions:

She is divorced by her husband, or

Obtained divorce from her husband, and

She has not remarried, and

She is not able to maintain herself.

Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act (Muslim Women Protection of rights on Marriage Act) for them.

A wife cannot claim and get maintenance from her husband in the following conditions:

Wife living in adultery, or

Refuses to live with husband without any valid reasons, or

Living separately by mutual consent.

Legitimate or illegitimate minor child

Son

‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act, 1875 is deemed not to have attained his majority i.e., above the age of 18 years.

Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of Cr.PC.

Daughter

If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get maintenance from her father and if she is married, then she is also entitled to get maintenance from his father but the magistrate has to be satisfied that her husband has not essential and sufficient means for the maintenance of his minor wife. In the case of Shahbuddin v State of UP, a minor daughter attaining majority during the pendency of the application for maintenance was held entitled to maintenance up to the date of majority.

Legitimate or illegitimate abnormal child who has attained majority

If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then the father of that child has to maintain him and he can claim maintenance on this ground of abnormality.

Father or mother

· Natural father and mother can claim maintenance.

· Mother includes adoptive mother, she can claim maintenance from adoptive son.

· Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by pleading that the father failed to fulfil his parental obligation.

· A childless stepmother can claim maintenance.

In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High Court has held that the father or mother can claim maintenance under Section 125(1)(d) if he or she is unable to maintain himself or herself. But it is also important that if parents claim maintenance to their children, children must have sufficient means to maintain their parents and yet neglects or refuses to maintain the father or mother.

A Supreme Court bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah on Tuesday held that as a proposition of law, an unmarried Hindu daughter can claim maintenance from her father till she is married, provided she pleads and proves that she is unable to maintain herself. However, for enforcement of this right, her application/suit has to be under Section 20 (3) of the Hindu Adoptions and Maintenance Act (HAMA), 1956, rather than under Section 125 of the Code of Criminal Procedure (CrPC), the bench ruled.

In the instant case, Abhilasha v Parkash & Others, an unmarried daughter challenged the order of the judicial magistrate 1st class, Rewari, granting her maintenance in 2011 at Rs 3,000 per month to be paid by her father from the date of filing of the petition under Section 125 CrPC until she becomes a major. Along with the unmarried daughter, her mother and two minor sons had also filed the petition, but were not granted maintenance, because they did not plead and prove that they were unable to maintain themselves. The unmarried daughter was found to be entitled to get maintenance from October 17, 2002, when she filed the application till February 7, 2005, when she became a major.

The SC’s order

In the Supreme Court, while challenging the order of the high court, it was argued on behalf of the unmarried daughter, who was the appellant, that as per section 20 of the HAMA, 1956, the obligation of the father to maintain his daughter extends until she is married. As the appellant claimed to be still unemployed, she said she was entitled to claim maintenance from her father.

Comparing Section 125 of the CrPC with Section 20(3) of HAMA, the bench noted that the former contemplates that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury and she is unable to maintain herself.

The bench noted that Section 488 of the CrPC sought to inhibit the negligence of woman and children with the intent to serve a social purpose. The provision provided for summary proceeding to enable a deserted wife or helpless child, legitimate or illegitimate, to get urgent relief. “The laws are nothing but collective consciousness of community. It is in the interest of the community and social order that woman and child who are neglected be maintained and should be provided a forum to obtain urgent relief to enable them to sustain”, the bench observed.

Relying on Supreme Court’s previous decision in Lnanak Chand v Chandra Kishore Aggarwal and others (1969), the bench held that there is no inconsistency between Section 488 of the CrPC. and HAMA and both can stand together. Section 488 of the CrPC provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties, the bench held, citing its previous judgment.

In classical Hindu law prior to codification, a Hindu male was always held morally and legally liable to maintain his aged parents, a virtuous wife and infant child, the bench reasoned. While Hindu law always recognised the liability of the father to maintain an unmarried daughter, Muslim law also recognises the obligation of the father to maintain his daughters until they are married, the bench pointed out.

Obligation can be enforced

The obligation of a Hindu father to maintain his unmarried daughter can, therefore, be enforced by her against her father, if she is unable to maintain herself, the bench held.

While explaining the position under the Muslim law, the bench referred to the Supreme Court’s previous decision in Noor Saba Khatoon v Mohd. Quasim (1997). The Supreme Court held in this case that the effect of beneficial legislation like Section 125 of the CrPC cannot be allowed to be defeated except through clear provisions of a statute. The court, therefore, held that there is no conflict between Section 125 of the CrPC and the Muslim Women (Protection of Rights on Divorce) Act, 1986, enacted in the aftermath of the Shah Bano verdict by the Supreme Court during the term of the then prime minister Rajiv Gandhi.

10 Important Judgments on Right to Maintenance of Wife u/s. 125 of Code of Criminal Procedure 1973

The Supreme Court also made reference to its judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit [(1999) 7 SCC 675], wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance.

Badshah Vs. Urmila Badshah Godse and Another, [(2014) 1 SCC 188]- Second wife is entitled to claim maintenance from husband u/s. 125 if the subsistence of first marriage is concealed by the husband.

Hon’ble Supreme Court of India has held that, ‘The Second wife is entitled to maintenance under section 125 CrPC if the husband had concealed from her the subsistence of his first marriage.

Where the husband had duped the second wife by not revealing to her the fact of his earlier marriage, it has been held by the Supreme Court that the husband cannot deny maintenance to his second wife u/s 125 CrPC in such a case and he cannot be permitted to take advantage of his own wrong by raising the contention that such second marriage during the subsistence of his first marriage, being void under the Hindu Marriage Act, 1955, the second wife was not entitled to maintenance as she was not his legally wedded wife. The earlier judgments of the Supreme Court reported in (i) Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, (1988) 1 S.C.C. 530 and (ii) Savitaben Somabhai Bhatiya Vs. State of Gujarat, (2005) 3 S.C.C. 636 supporting the said contention of the husband would apply only in those circumstances where a woman marries a man with full knowledge of subsistence of his first marriage. Second wife thus having no knowledge of first subsisting marriage is to be treated as legally wedded wife for purposes of claiming maintenance.

Shailja & Anr. v. Khobanna [(2018) 12 SCC 199]– Mere capability of earning by the wife doesn’t disentitle her to claim maintenance from husband.

In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as maintenance to wife.

The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr., wherein it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.

That maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors.

A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa Joseph v. Anand Joseph [2018 SCC OnLine Ker 5012], wherein the Court remarked that Maintenance to Wife can’t be rejected on ground that she is earning

The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and Ors. V. Anil Kachwaha [(2014) 16 SCC 715], noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

Manoj Kumar v. Champa Devi [Criminal Appeal No. 10137/2015]- Wife term to include ‘Divorced Wife’ which makes her entitle to claim maintenance from her former husband even after passing of decree of Divorce.

In the case, the husband had contended that as the decree of divorce had been passed, he was under no obligation to pay maintenance to the wife as contemplated under Section 125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.