Back
1986 Supreme(Ori) 461
IN THE HIGH COURT OF ORISSA
G.B. Pattnaik, J.
NAMITARANI BOSE - APPELLANT
Versus
DIPAK KUMAR BOSE - RESPONDENT
Decided On : 28-02-1986
G.N. Mohapatra and U.C. Mohanty in Cr. Rev. No. 106/85, M.M. Sahu, in Cr. Rev. No. 111/86, for the Appellant; M.M. Sahu in Cr. Rev. No. 106/85, G.N. Mohapatra and U.C. Mohanty in Cr. Rev. No. 111/86, for the Respondent
A wife is entitled to maintenance under Section 125 of the CrPC if she is unable to maintain herself, even if she has some income.
Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE - SECTION 13 OF THE HINDU MARRIAGE ACT - WIFE'S RIGHT TO MAINTENANCE - INTERPRETATION AND APPLICATION.
Fact of the Case:
Wife filed an application under Section 125 of the Code of Criminal Procedure (CrPC) seeking maintenance from her husband. The husband challenged the order of the Magistrate granting maintenance, arguing that the wife was able to maintain herself as she earned some income from tuition. The wife filed a revision petition seeking enhancement of the maintenance amount.
Finding of the Court:
The court held that the wife was entitled to maintenance under Section 125 of the CrPC as she was unable to maintain herself. The court found that the wife's income from tuition was not sufficient to meet her basic needs, considering the high cost of living.
Issues: 1. Whether the wife was entitled to maintenance under Section 125 of the CrPC despite earning some income from tuition. 2. Whether the maintenance amount of Rs. 75/- per month granted by the Magistrate was adequate.
Ratio Decidendi: 1. The court interpreted Section 125 of the CrPC to mean that a wife is entitled to maintenance if she is unable to maintain herself, even if she has some income. 2. The court held that the wife's income from tuition was not sufficient to meet her basic needs, considering the high cost of living.
Final Decision: The court allowed the wife's revision petition and enhanced the maintenance amount to Rs. 100/- per month, payable from the date of the application.
JUDGMENT :
G.B. Pattnaik, J. - Petitioner who is the wife and had filed an application u/s 125 of the Code of Criminal Procedure (hereinafter referred to as the Code has prayed for enhancement of monthly maintenance granted by the learned Magistrate. Before this case was taken up for hearing on the request of the counsel for the opposite party, the records of Criminal Revision No. 37 of 1985 filed by the husband challenging the order of the Magistrate were brought from the Court of the Second Additional Sessions Judge Cuttack and the said revision after being registered in this Court as Criminal Revision No. 111 of 1986 was also heard along with Criminal Revision No. 106 of 1985 and both the cases are being disposed of by this common judgment.
2. The averments in the application filed u/s 125 of the Code are to the effect that the marriage between the petitioner and opposite party took place on 4.5.1974 and both of them continued to live as husband and wife till June 1975, though they were not pulling on well with each other on account of failure to pay the required dowry by the petitioner's parents. The opposite party, the husband, illtreated the petitioner and ultimately assaulted her. At last, the opposite party sent the petitioner to her father's house where she has been staying all along and she has been neglected by her husband. In the meantime, on the application of the husband u/s 13 of the Hindu Marriage Act, a decree for divorce has been passed. As the petitioner does not have sufficient means to maintain herself, she clamed maintenance by filing the present application. According to the petitioner, the opposite party gets a monthly salary of Rs. 1,000/- and that apart, he has some houses in the town of Cuttack which he has given on rent and gets about Rs. 1,800/-per month from the house rent. She, therefore claimed Rs. 500/-per month as maintenance allowance and Rs.15,000/-towards medical expenses.
3. The opposite party denied the allegations made in the application and took the stand that the petitioner had left him on her own accord and even though the opposite party tried to bring her back but was unsuccessful. Ultimately, he was forced to file the application for divorce and has obtained a decree thereunder. The opposite party denied to have neglected the petitioner at any point of time and further asserted that the petitioner had sufficient means to maintain herself and, therefore, she was not entitled to claim maintenance invoking the provisions of Section 125 of the Code.
4. Parties led evidence before the learned Magistrate and on consideration of the materials, the learned Magistrate came to hold that the petitioner was the legally married wife of opposite party and he had refused to maintain her. On the question of petitioner's inability to maintain herself, the learned Magistrate came to hold that though she gets something from tuition, but the exact amount was not known and, therefore, she must be held to be entitled to receive maintenance within the ambit of Section 125 of the Code. After coming to the conclusion hat the petitioner is entitled to receive maintenance, the learned Magistrate also considered the monthly income of the husband-opposite party and ultimately directed that the petitioner should get Rs. 75/- per month towards maintenance from the date of institution of her application The legality of this order has been challenged by the husband in Criminal Revision No. 37 of 1985 before the learned Second Additional Sessions Judge Cuttack the records of which were brought back to this Court by order dated 18.2.1986 and the said revision has been numbered as Criminal Revision No 111 of 1986.
5. Mr. Sahu, the learned counsel appearing for the husband-opposite party contends that one of the pre-conditions of entitlement to receive maintenance u/s 125 of the Code is that the wife is unable to maintain herself. According to him since in this case it is proved that the wife has some income from tuition th
