Maintainence/Interim Maintainence to wife calculation Judgements

interim maintenance/maintenance to wife

Here are some of the Judgments which help in assess the interim maintenance/maintenance to wife and how courts devise the amount.

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Revision vs By Advs.Sri.C.P.Peethambaran 

There is nothing to show that the wife has any job or income of her own. Though the husband made such a contention that she has her own income, there is no evidence to prove such a case. The respondent is admittedly a carpenter. He also practically admitted that a carpenter would get 750/- per day. But his case is that he would not get job everyday in a month. Anyway, the trial court made a rough assessment of the probable income of the husband as 15,000/- per month. What is awarded is only 1/3rd of the probable income assessed. In the particular facts and circumstances, I find that some slight modification can be made in the amount awarded by the trial court. The revision petitioner will have his own personal expenses and he will have other liabilities in the family consisting his parents, brothers and sisters. The concern of the court must be that the amount awarded R.P (FC) No.311 of 2014 by the court must reach in the hands of the claimant. If a huge amount is awarded, the claimant may not get it promptly, and the person liable may think of other options, if he finds it difficult to make payment of the huge amount. So, I feel that 2500/- will do justice to the wife and 1500/- will do justice to the child in the present circumstances, of course, subject to periodic modification and enhancement under Section 127 of Cr.P.C as and when needs and necessities increase and circumstances change.

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Interim Maintenance order is not interlocutory order! Can be revised

After considering the whole matter, I am of the view that the argument has no force. Under the Code there is no provision for filing an application for granting interim maintenance during the pendency of main application under Section 125 of the Code after the Supreme Court judgment holding the right of the petitioner under Section 125 of the Code to get interim maintenance. Almost in all cases applications for interim relief are being made. This application for interim maintenance is by itself separate matter and . it has to be disposed of separately much earlier than the final order in the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order.

Read judgement-  http://indiankanoon.org/doc/427266/

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How to claim maintenance..

Maintenance is a right which a husband, wife ,children and old parents can exercise under various provisions of law.Now which provisions are applicable in your case you can have a look below.

Maintenance U/S 24  HMA

  1. It is maintenance pedente lite, ie during the pend-ency of any proceedings under HMA(Hindu Marraige Act)
  2. Claimed by both husband or wife.
  3. To be filed with proceedings of divorce, Restitution of conjugal rights,Maintenance u/s 25, annulment cases

caution : If you are filing cases under 498a or under DV act application U/S 24 is not maintainable.

Scope: Temporary in nature only till pend ency of certain proceeding.

Maintenance under Section 25 HMA

1. Both husband and wife are entitled to permanent maintenance throughout such period not exceeding their life.

2. Longer time

3. However if wife remarries or husband have a sexual intercourse outside wedlock the maintenance can be denied.

4. Section 24 and 25 should be filed together for greater relief.

Scope-:only till the time party don’t marries.

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PRE MARITAL PREGNANCY AND ABORTION

PRE MARITAL PREGNANCY AND ABORTION

The physical expression of sexuality is fundamental and universal. What differs is how cultures,
religions and societies construe and influence both the setting in which sexual intercourse between
men and women occurs and the types of relationships in which pregnancy is encouraged or
discouraged. Most societies and most religions approve of sexual intercourse and childbearing only
within marriage. Sexual intercourse at quite young ages—as part of or apart from marriage—is
common in many countries, developed and developing alike.
The premarital sexual behaviour of Asian, Middle Eastern and North African women is largely
undocumented. In these regions, a young woman having sexual intercourse before marriage would
challenge strongly held social and religious values, and national surveys typically do not ask
questions on this topic. However, this makes it all the more likely that a woman who breaks the
taboo against premarital sexual intercourse will feel compelled to seek an abortion if she becomes
pregnant.
P1-BO187_FALSPR_G_20131129195251

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How to Bargain the amount of Interim Maintenance/Maintenance.

Interim maintenance and maintenance under s.24 and s. 25 of HMA or under s.125 CrPC or under DV act. These provisions bind a person who has an obligation to support and maintain his family. Initially when these cases are filed on say a husband they become adamant they deny to recognize their duty which can go adverse against the husband himself. Interim maintenance is the monthly amount set by the court till pending litigation. So the real benefit for the husband is to shorten the time of litigation so that he would end up paying less here are some of the ways to pay a minimum or no amount of interim maintenance / maintenance.

  • Capacity to Pay

The amount of maintenance is directly proportional to the income of the husband. Lesser the income lesser is the sanctioned amount. It is important that husband should take initiative to show the salary slip instead of the court asking for the same as the procedure by courts are slow so better to follow due diligence approach. This would also help in bringing down the amount and shortening the litigation as it would again show the honest approach of the husband.

  • Desertion by Wife

It is a rule that if wife has deserted the husband the husband is not liable to pay any form of maintenance. It is imported to show that you have done various efforts to call back the wife by mail, SMS, chats are all admissible proof. This again would lead to shortening of litigation and complete dismissal of maintenance case. But again the wife has 498a and cruelty but she need to prove it.

  • Mediation

Mediation is the best ground for negotiation. Try to negotiate the amount and mutually agree. It would again shorten the litigation and save lots of money on lawyers.

  • Working wife

Try to prove that wife is competent to earn, there is a rule that maintenance amount is for survival not for luxury and if the wife is working than no maintenance shall be awarded. But if wife is capable to earn then maintenance amount can be reduced.

Follow these tips remember the penny ur saving in maintenance cases can become heavy if litigation continues for long periods. In maintenance cases non-adamant, honest, diligent approach will win you.

Legality of surrogacy in India

           Motherhood as everyone says is the worlds best relationship between a child and her mother, call is globalisation or modernisation this precious relationship has turned into a business to some people and dreams come true to some other. Surrogacy is an arrangement or call it an agreement between a woman and the intended parents who carries the child of these parents.

  1. The word surrogate has its origin from the Latin word “surrogates” meaning a substitute that is a person appointed to act in place of another. The report of the committee of inquiry into human fertilization and embryology or the Warnock report (1982) termed surrogacy as the practise whereby one woman carries a child for another with the intention that the child should be handed over after birth to the intended parents.

  2. The worlds 2nd and India’s 1st IVF(In Vitro Fertilization) baby, Kanupriya alias Durga was born in Kolkata on Oct 3,1978 about two months after the world 1st IVF boy, Louise Joy Brown born in Great Britain on July 25,1978, since then the (Assisted Reproductive Technology)ART came into existence.

  3. There are various kinds of surrogacy like traditional surrogacy, gentical surrogacy, donar surrogacy and so on…

  4. Coming to the issues relating to surrogacy are many from legal to religious lets have a look into it:-

  • Legal issues-

  1. Are surrogacy agreements enforceable, void or prohibited, does it make a difference whether the surrogate mother is paid or simply reimbursed for the expenses?

  2. Is there an alternative to post birth adoption for the recognition of the intended parents as the legal parents, either before of after the birth?

  1. Should we be concerned about exploitation of motherhood and corrosion when women are paid to be pregnant and deliver babies?

  2. To what extent it is right for the society to permit women to make contracts about the use of their babies.

  3. What does motherhood mean and where is the nuptial relationship lost after giving the child to the intended parents.

  4. Does the surrogate child have the right to know about the identity of her nuptial mother?

  • Religious issues-

  1. Catholics-paragraph 2376 if the catechism of the catholic church states that “techniques that entail the disassociation of husband and wife by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus) are immoral’’

Most important thing that is to be considered here is that most of the foreign nationals are exploiting Indian poor women especially unmarried by showing them the lust for money and entering into surrogacy arrangements which is spoiling the lives and social relationships of these women the government has to look into this issue seriously and a determined law is to be framed in this aspect. On one side this sort of surrogacy births give a ray of hope to those people who cannot conceive but to the other side and to a very large extent this sort of arrangement is being used only for exploitation purpose which has to be kept in mind.

By-: Taruni Banda

How to make a will?

What is a will?

A will is the testament of a person about how his property both movable and immovable is to be managed; It may also include those persons who may become beneficiaries in his property after his death. A will can only be made with respect to self-acquired property of the testator or pertaining to disposal of his vested share in the ancestral property, A will can only be made by any person who is above the age of 18. In the absence of will the property of the testator could be disposed off according to intestate rules.

 

Essentials for valid will?

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.

4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.

5. Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.

Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.

 

 Probate: It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to a court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor’s appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

 ‘Wills’ By Muslims Under ‘Mohammedan Law’: A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested. Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.

Statutes Relating To ‘Wills’: There are many laws which are dealing with the concept of ‘Wills’ as follows:

• Indian Succession Act, 1925

• Hindu Law (Hindus Personal Law)

• Muslim Law (Muslims Personal Law)

• Indian Registration Act, 1908

 

 

LAND MARK SC JUDGEMENT ON INTERIM MAINTENANCE/MAINTENANCE 125 crpc

LAND MARK SC JUDGEMENT ON INTERIM MAINTENANCE/MAINTENANCE 125 crpc

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MAINTENANCE TO HUSBAND BY WIFE

How Maintenance to wife is assessed in S.24 HMA

125 CrPc-How to alter the maintainance

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Interim Maintenance to working wife

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Supreme Court Cases 316-2008
Chaturbhuj Vs. Sitabai,
Dismissing the appeal, the Court
Dismissing the appeal, the Court
HELD: 1.1. The object of the maintenance proceedings is not to punish a person
for his past neglect, but to prevent vagrancy by compelling those who can
provide support to those who are unable to support themselves and who have a
moral claim to support. The phrase “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 desertion to
survive somehow. S.125 Cr.P.C. is a measure of social justice and is specially
enacted to protect women and children and falls within constitutional sweep of
Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It
provides a speedy remedy for the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights and natural duties of a man
to maintain his wife, children and parents when they are unable to maintain
themselves. [Para 5] [586-B, C,D, E]
Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., AIR (1978) SC
1807 and Savitaben Somabhai Bhatiya v. State of Gujarat and Ors., (2005) 2 Supreme 503, relied on.
1.2. Under the law, the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case, there is
no dispute that the appellant has the requisite means. But there is an
inseparable condition which has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his wife. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the personal
income of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.
The test is whether the wife is in a position to maintain herself in the way she was used to at the place of her husband.[Paras 6, 7 and 8] [583-F, G; 584-A, B, C]
Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated.
2. The trial Court, the Revisional Court and the High Court analysed the
evidence and held that the respondent wife was unable to maintain herself. The
conclusions are essentially factual and they are not perverse. That being so
there is no scope for interference in this appeal. [Para 9] [584-D, E]
Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant.
Shashi Bhushan Kumar for the Respondent.
Code of Criminal Procedure, 1973:
s.125-Claim for maintenance by wife-Wife not having sufficient means to maintain
herself and husband having sufficient means-Order of maintenance by Courts below
after analyzing evidence-Interference with-Held: Conclusion of courts below that
wife was unable to maintain herself was essentially factual and not
perverse-Thus, interference not called for-Constitution of India-Article 136.
s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of social
justice, especially enacted to protect women, children and parents when they are
unable to maintain themselves, and falls within constitutional sweep of Article
12(3) reinforced by Article 39 of the Constitution-Constitution of India,1950-Articles 15(3) and 39-Social justice.
Words and phrases: “unable to maintain herself“-Meaning of-In the context of
s.125 of Code of Criminal Procedure, 1973.
The respondent-wife filed an application under s.125 Cr.P.C. claiming
Rs.10,000/- as maintenance from the appellant-husband. In the application, it
was claimed that she was unemployed and unable to maintain herself.
The stand of the appellant was that the wife was living in the house constructed
by him; that she had let out the house on rent and since 1979 was residing with
one of their sons; that the wife had sold the agricultural land and sale
proceeds were still with her; and that she could maintain herself from the money
received from the sale of agricultural land and rent.
Considering the evidence on record, the trial Court directed husband to pay
Rs.1500 per month opining that the wife did not have sufficient means to
maintain herself. The revisional Court analysed the evidence and dismissed the
revision petition holding that the appellant’s monthly income was more than
Rs.10,000/- and the amount received as rent by the respondent-wife was not
sufficient to maintain herself.
Appellant filed an application under s.482 Cr.P.C. before the High Court. The
High Court dismissed the application holding that the conclusions by the trial
Court and the Revisional Court were arrived at on appreciation of evidence and
therefore there was no scope for any interference. Hence the present appeal.
2008 AIR 530 , 2007(12 )SCR577 , 2008(2 )SCC316 , 2007(13 )SCALE402 , 2008(1)JT78
CASE NO.:Appeal (crl.) 1627 of 2007
PETITIONER:Chaturbhuj
RESPONDENT:Sita Bai
DATE OF JUDGMENT: 27/11/2007
BENCH:Dr. ARIJIT PASAYAT & AFTAB ALAM
JUDGMENT:J U D G M E N T
CRIMINAL APPEAL NO. 1627 OF 2007
(Arising out of SLP (Crl.) No.4379 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court,
Indore Bench, dismissing the revision petition filed by the
appellant in terms of Section 482 of the Code of Criminal
Procedure, 1973 (in short ‘Cr.P.C.’). The challenge before the
High Court was to the order passed by learned Judicial
Magistrate, First Class, Neemuch, M.P. as affirmed by the
learned Additional Sessions Judge, Neemuch, M.P. The
respondent had filed an application under Section 125 of
Cr.P.C. claiming maintenance from the appellant.
Undisputedly, the appellant and the respondent had entered
into marital knot about four decades back and for more than
two decades they were living separately. In the application it
was claimed that she was unemployed and unable to maintain
herself. Appellant had retired from the post of Assistant
Director of Agriculture and was getting about Rs.8,000/- as
pension and a similar amount as house rent. Besides this, he
was lending money to people on interest. The appellant
claimed Rs.10,000/- as maintenance. The stand of the
appellant was that the applicant was living in the house
constructed by the present appellant who had purchased 7
bighas of land in Ratlam in the name of the applicant. She let
out the house on rent and since 1979 was residing with one of
their sons. The applicant sold the agricultural land on
13.3.2003. The sale proceeds were still with the applicant.
The appellant was getting pension of about Rs.5,700/- p.m.
and was not getting any house rent regularly. He was getting
2-3 thousand rupees per month. The plea that the appellant
had married another lady was denied. It was further
submitted that the applicant at the relevant point of time was
staying in the
house of the appellant and electricity and water
dues were being paid by him. The applicant can maintain
herself from the money received from the sale of agricultural
land and rent. Considering the evidence on record, the trial
Court found that the applicant-respondent did not have
sufficient means to maintain herself.
3. Revision petition was filed by the present appellant.
Challenge was to the direction to pay Rs.1500/- p.m. by the
trial Court. The stand was that the applicant was able to
maintain herself from her income was reiterated. The
revisional court analysed the evidence and held that the
appellant’s monthly income was more than Rs.10,000/- and
the amount received as rent by the respondent-claimant was
not sufficient to maintain herself. The revision was
accordingly dismissed. The matter was further carried before
the High Court by filing an application in terms of Section 482
Cr.P.C. The High Court noticed that the conclusions have
been arrived at on appreciation of evidence and, therefore,
there is no scope for any interference.
4. Section 125 Cr.P.C. reads as follows:
“125. (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.
Explanation .For the purposes of this Chapter,
(a) ‘minor’ means a person who, under the
provisions of the Indian Majority Act, 1875 (9
of 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) 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 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
for levying fines, and may sentence such person, for
the whole, or any port of each month’s allowance 4
[allowance for the maintenance or the interim
maintenance and expenses of proceeding , as the case
may be] 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.
Explanation.-If a husband has contracted marriage
with another woman or keeps a mistress, it shall
be considered to be just ground for his wife’s
refusal to live with him.
(4) No wife shall be entitled to receive an 4 [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.”
5. The object of the maintenance proceedings is not to
punish a person for his past neglect, but to prevent vagrancy
by compelling those who can provide support to those who
are unable to support themselves and who have a moral claim
to support. The phrase “unable to maintain herself” in the
instant case 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 desertion to
survive somehow. Section 125 Cr.P.C. is a measure of social
justice and is specially enacted to protect women and children
and as noted by this Court in Captain Ramesh Chander
Kaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)
falls within constitutional sweep of Article 15(3) reinforced by
Article 39 of the Constitution of India, 1950 (in short the
‘Constitution’). It is meant to achieve a social purpose. The
object is to prevent vagrancy and destitution. It provides a
speedy remedy for the supply of food, clothing and shelter to
the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).
6. Under the law the burden is placed in the first place
upon the wife to show that the means of her husband are
sufficient. In the instant case there is no dispute that the
appellant has the requisite means.
7. But there is an inseparable condition which has also to
be satisfied that the wife was unable to maintain herself.
These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his
wife. It is has to be established that the wife was unable to
maintain herself. The appellant has placed material to show
that the respondent-wife was earning some income. That is
not sufficient to rule out application of Section 125 Cr.P.C. It
has to be established that with the amount she earned the
respondent-wife was able to maintain herself.
8. In an illustrative case where wife was surviving by
begging, would not amount to her ability to maintain herself.
It can also be not said that the wife has been capable of
earning but she was not making an effort to earn. Whether the
deserted wife was unable to maintain herself, has to be
decided on the basis of the material placed on record. Where
the personal income of the wife is insufficient she can claim
maintenance under Section 125 Cr.P.C. The test is whether
the wife is in a position to maintain herself i
n the way she was
used to in the place of her husband. In Bhagwan v. Kamla
Devi (AIR 1975 SC 83) it was observed that the wife should be
in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of
a family. The expression “unable to maintain herself” does not
mean that the wife must be absolutely destitute before she can
apply for maintenance under Section 125 Cr.P.C.
9. In the instant case the trial Court, the Revisional Court and the High Court have analysed the evidence and held that the respondent wife was unable to maintain herself. The conclusions are essentially factual and they are not perverse.
That being so there is no scope for interference in this appeal which is dismissed.