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IN THE HIGH COURT OF BOMBAY
H. Suresh, J.
Kamalabai Khanderao Thete (Sou.) another.... Petitioners.
Versus
Khanderao Murlidhar Thete another .... Respondents.
Criminal Writ Petition No. 591 of 1987, decided on 24-1-1989.
Advocates appeared :
J.R.Gore, for petitioner.
B.G. Vaidya, for respondent No. 1.
S. Mutalik, Public Prosecutor, for State.
Under Section 125 of the Criminal Procedure Code a wife become entitled to maintenance if the husband neglects or refuses to maintain her. In the present case, it is clear that respondent No.1 has not given any amount to the petitioners. That is a clear neglect to maintain them. Of course, there is a further requirement that the wife must be unable to maintain herself. In courts view, just because the wife has been earning some amount before coming to the Court, for her survival, it cannot be said that she has been able to maintain herself. She could not have been starving because her husband refused to maintain her. Section 125 of the Criminal Procedure Code is not the purpose of seeing that the husband is made to comply his obligations of maintaining his wife and children if the wife and children are neglected by him, if they are unable to maintain themselves. If there is iregular source of income sufficient to maintain them at the same level of standard of living as that of the husband, there may not be any order for maintenance under this provision. Again the term maintenance does not mean mere rupees and paise, It means much more than that. It means shelter, it means food, medicine and every other necessities of life. To deny an order of maintenance on the ground that the wife is earning a meagre level hood, without taking into account, all the other relevant factors will be wholly unjust. Any other construction of Section 125 of the Criminal Procedure Code would at once result in an inequitous position of a husband neglect 109 to maintain his wife with impunity, just because she has been able to earn her two meals a day, all by the sweat of her efforts. In the present case, the evidence shows that respondent No. 1 is a man of substance and status. Her income has only given her bare existence.
The Magistrate came to the conclusion that respondent No. 1 was not responsible for the delay in deciding the matter and that, therefore, by necessary implication, it means that he was not obliged to maintain her during the pendency of the application. The Magistrate forgot to take note of the fact that during this period when the proceeding was delaeyd respondent No. 1 did not pay anything to her. She was equally faultless, as she too was not responsible for the delay. The normal rule is to grant maintenance from the date of the application, and not from the order. It is only when there are very exceptional circumstances for valid reasons, it is open to a Magistrate to grant maintenance with effect from a subsequent date.
2. The relevant facts are as follows :
Petitioner No. 1 is the wife of respondent No. 1 and she has been living separately since August 27, 1978. She filed this application under section 125 of Cri.P. Code in the Court of the Chief Judicial Magistrate, Nasik, being Miscellaneous Application No. 82 of 1982 on April 13, 1982. It is an admitted position that much before the filing of the application, respondent, No. 1 had taken a second wife. Before the learned Magistrate, it was alleged that she was having a paramour and that she was living in adultery. It was also contended that respondent No. 1 had not neglected or refused to maintain the petitioners as according to respondent No. 1, petitioner No. 1 had left the house on her own and had not come back to stay with him.
3. The learned Magistrate came to the conclusion that respondent No. 1 has not proved that petitioner No. 1 was living in adultery at the time of this application. He also came to the conclusion that respondent No. 1 has neglected to maintain the applicants. He also held that it has been proved that respondent No. 1 has married a second wife. He also held that there was no evidence to show that he had illtreated petitioner No. 1. However, he came to the conclusion that petitioner No. 1 was not entitled to any maintenance because she was able to maintain herself, and as far as the daughter was concerned, he granted maintenance. In the sum of Rs. 100/- per month from the date of the order i.e. October 25, 1985.
4. Against this judgment and order the petitioners filed a revision application before the learned Sessions Judge. The learned Judge by his order dated December 11, 1986 dismissed the application and he did not change any of the findings given by the learned Magistrate.
5. In the result, what stands proved is this, viz. As far as respondent No. 1 is concerned, he has second wife, since much prior to the date of the application. If that is so having regard to the Explanation as provided under section 125 sub-section (3) of the Cri.P. Code, the wife, petitioner No. 1, is not bound to stay with him. In other words, she becomes entitled to stay separately.
6. Similarly, the other fact that stands provided is that she is not living in adultery. So also, it is not his case that he has provided for her maintenance or for the maintenance of petitioner No. 2, at any time. Therefore, the limited question is whether the lower courts were justified in not granting any maintenance to petitioner No. 1 and also in not granting maintenance to petitioner No. 2 from the date of the application.
7. If one goes through the reasons given by the learned Magistrate on the first question why he did not grant maintenance to petitioner No. 1, it becomes clear that it is on the basis that petitioner No. 1 is doing vegetable business in the vegetable market and that she had taken some loan for the business and that she is paying rent of Rs. 125/- per month for the place where she is residing. On this basis the learned Magistrate comes to the conclusion that she must be having a regular income and, therefore, she is earning sufficient income from this vegetable business and is able to maintain herself and that, therefore, she has not proved that she was unable to maintain herself.
8. On the other question, the learned Magistrate has granted maintenance at the rate of Rs. 100/- per month to the daughter, from the date of the order mainly because the opponent was not responsible for the delay in deciding this application. The learned Sess
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