Important Points
1. Husband living with another woman, though the second marriage is not proved, is sufficient for the wife to live separately and cflaim maintenance u/s 125 of Cr. P.C.
2. The words in Section 105 Cr.P.C. “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 the desertion to survive somehow.
3. Statement of the wife that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise and it is for the husband to show that he has no sufficient means to discharge his obligations and that he did not neglect or refuse to maintain them or any one of them.
4. High Court examine the whole evidence theadbare to exercise jurisdiction under section 482 of the Cr. P.C.

Headnote:Code of Criminal Procedure, 1973-Section 125-Maintence to wife and children-Wife living separately on ground husband contracted another marriage-Husband acquitted of offence u/s 494 IPC-Fact remiand that husband was living with another woman-Husband offering to maintain wife and children on condition she live with him-Refusal of wife-High Court setting aside order granting maintence by lower Courts on ground wife did not prove second marriage and she refused to live with him-Not sustainable - Husband living with another wife is valid ground for wife refusing to live with him-High Court’s order set aside.
       Held : If we refer to proviso to sub-section (3) of section 125 where a husband offers to maintain his wife on the condition of her living with him and she refuses to live with him a Magistrate may consider any ground of refusal stated to her and nevertheless make an order notwithstanding such offer, if the magistrate is satisfied that there is just ground for so doing. Explanation to the proviso states that if a husband has contracted marriage with any other woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (Para 6)
       In the present case wife alleged that her husband had contracted a second marriage on January 4, 1990. She filed a complaint for an offence under Section 494 of the Indian Penal Code. It is stated that the complaint was dismissed and husband was acquitted. HIgh Court took this circumstance against the wife and adversely commented on her refusal to live with her husband. High Court, it would appear, lost sight of the fact how it would be difficult for the wife to prove the second marriage. This Court has held that to prove the second marriage as a fact essential ceremonies constituting it must be proved and if second marriage is not proved to have been validly performed by observing essential ceremonies and customs in the community conviction under Section 494 IPC ought not to be made. The fact, however, remains in the present case that the husband is living with another woman. Proviso to sub-section (3) would squarely apply and justify refusal of the wife to live with her husband. There can be, however, other grounds for the wife to refuse to live with her husband, e.g., if she is subjected to cruelty by him. It was a case where the husband neglected or refused to maintian his wife. (Para 7)
       (ii) Code of Criminal Procedure, 1973-Section 125-Maintenance -unable to maintain “herself”, meaning herself would be enough and it would be for husband to prove otherwise-It is on husband to show that he has no sufficient means to discharge his obligation.
       Held : High Cout did not consider the question if husband was having sufficient means. It rather unnecessarily put the burden on the wife to prove that she was unable to maintain herself. The words in Section 105 Cr.P.C. “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 the desertion to survive somehow. Section 125 is enacted on thepremise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them. High Court also observed that the wife did not plead as to since when she was living separately. This is not quite a relevant consideration. Even though wife was unable to prove that husband has remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife ton live separately and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise. (Para 7)
       (iii) Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Scope of jurisdiction-Powers u/s 482 are not a substitute for a second revision u/s 397(3).
       Held : In the present case, the High Court minutely examined the evidence and come to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. All this High Court did in exercise of its powers under Section 482 of the Code which powers are not a substitute for a second revision under sub-section (3) of Section 397 of the Code. The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles. It was not necessary for the High Court to examine the whole evidence theadbare to exercise jurisdiction under Section 482 of the Code. Rather in a case under Section 125 of the Code trial court is to take a prima facie view of the matter and it is not necessary for the court to go into the matrimonial disputes between the parties in detail. Section provides maintenance at the rate of Rs. 500/- per month. There is outory that this amount is too small. In the present case, however, we are quite surprised that the court granted paltry amount of Rs. 200/- per month as maintenance which was confirmed in the revision by the Sessions Court and the High Court thought it fit to interfere under Section 482 of the Code in exercise of its inherent jurisdiction. High Court wrongly exercised its jurisdiction under Section 482 of the Code in passing the impugned order. (Paras 11, 12 & 13)

Judgment

D.P. Wadhwa, J.-Leave granted.

2. This is wife’s appeal agianst order dated December 4, 1997 of the Madras High Court Passed in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code (‘code’ for short). By this order wife was deprived of maintenance of Rs. 200/- per month granted to her under Section 125 of the Code.

3. Wife presented a petition under Section 125 of the Code on February 3, 1993 claiming from her husband, the respondent, maintenance for herself and her two daughters. The minor son of the parties is living with the husband. In the present appeal we are concerned with the grant of maintenance to the wife. She alleged that her husband having sufficient means neglected or refused to maintain her and that she was unable to maintain herself. In the petition wife had claimed maintenance at the rate of Rs. 500/- per month.

4. Learned Judicial Magistrate, by order dated April 24, 1995, granted her maintenance only at the rate of Rs. 200/- per month. Husband felt aggrieved and he went in revision to the court of Sessions. The learned sessions Judge, Salem, by order dated November 5, 1996 dismissed the revision petition filed by the husband and confirmed the order of grant of maintenance to the wife at the rate of Rs. 200/- per month. Still feeling aggrieved husband filed a petition under Section 482 of the Code in the Madras High Court. This was allowed by learned single Judge, who by the impugned order, set aside the orders both of the Judicial magistrate and the Sessions Judge and dismissed the petition of the wife for maintenance. Now the wife has come to this Court.

5. Proceedings under Section 125 of the Code are of summary nature. This Section is meant to provide immediate relief to the wife, minor children and parents, who are unable to maintain themselves. A maximum if Rs. 500/- per month can be granted to the wife under this Section. This will be when husband having sufficient means neglects or refuses to maintain her, she being unable to maintain herself. Section 125 we may quote in extenso :--

“125. Order for maintenance of wives, children and parents.-(1) If any person having sufficiant means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitmate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitmate 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 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 purpose of this Chapter,-

(a) “minor” means a person who, under the provisions of the Indian majority Act, 1875 (9of 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) Such allowance shall be payable from the date of the order, or,if so ordered, from the date of the application for maintenance.

(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

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1999 Supreme(SC) 735

Cases Referred (1)