Law of Maintenance by Shashi Kiran

Chapter 1
Alimony
SYNOPSIS
Introduction........................................1 Insufficient income ........................... 25
Object .................................................4 Interim order .................................... 26
Adultery ..............................................4 Lawyer wife ...................................... 26
Agreement between parties ................6 Lump-sum payment .......................... 27
Attachment of property ......................7 Maintenance continued as alimony
Cancellation of order .........................7 ......................................................... 27
Christian law......................................8 Meaning of ‘husband’ and ‘wife’..... 28
Claim in appeal ..................................9 Modification of order ....................... 28
Conduct of parties ..............................9 Nullity marriage............................... 29
Consent decree .................................12 Offer of re-union .............................. 32
Considerations for granting alimony13 Powers of Appellate Court ............... 33
Contracting out ................................14 Pregnant wife ................................... 33
Death of husband .............................15 Procedure ........................................ 34
Discretion of Court ..........................16 Quantum .......................................... 34
Disentitlement ..................................17 Remarriage ...................................... 36
Dismissal of proceeding ...................17 Resumption of cohabitation ............. 37
Distinction with maintenance...........20 Right after passing of decree ........... 38
Divorce due to mental disorder .......21 Stage of granting alimony ................ 38
Effect of desertion ............................22 Subsisting marriage ......................... 39
Effective date of modification ..........23 Territorial Jurisdiction .................... 39
Employed wife ..................................23 Withdrawal of petition ..................... 40
Entitlement only after divorce ..........24 Written Application .......................... 40
Formal application ..........................24 Young wife ....................................... 41
Grant of alimony in civil suit ...........25
Introduction
There are various provisions of different statutes dealing with
personal laws which deal with the question of alimony. These statutes
are Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act,
1936 and Indian Divorce Act. The relevant provision of these statutes are
dealt with in this chapter with reference to the judicial precedents. These
provisions are also being extracted hereafter.
Section 25 of Hindu Marriage Act, 1955 is as under:
2 Law of Maintenance
Permanent alimony and maintenance.— (1) Any Court exercising

jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on application made to it for
the purpose by either the wife or the husband, as the case may be,
order that the respondent shall pay to the applicant for her or his
maintenance and support such gross sum or such monthly or
periodical sum for a term not exceeding the life of the applicant
as, having regard to the respondent’s own income and other
property, if any, the income and other property of the applicant,
the conduct of the parties and other circumstances of the case, it
may seem to the Court to be just, and any such payment may be
secured, if necessary, by a charge on the immovable property of
the respondent.
(2) If the Court is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may at the instance of either party
vary, modify or rescind any such order in such manner as the
Court may deem just.
(3) If the Court is that the party in whose favour an order has
been made under this section has remarried, or, if such party is
the wife, that she has not remained chaste, or, if such party is the
husband, that he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the other party vary,
modify or rescind any such order in such manner as the Court
may deem just.
Section 31 of J&K Hindu Marriage Act, 1980 is also in verbatim

with the above provision. However section 37 of Special Marriage Act,
1954 is as under:
jurisdiction under Chapter V or Chapter VI may, at the time of
passing any decree or at any time subsequent to the decree on
application made to it for the purpose, order that the husband,
shall secure to the wife for maintenance and support, if necessary,
by a charge on the husband’s property, such gross sum or such
monthly or periodical payment of money for a term not exceeding
her life, as having regard to her own property, if any, her
husband’s property and ability, the conduct of the parties and
other circumstances of the case it may seem to the Court to be
just.
(2) If the District Court is satisfied that there is a change in the
(3) If the District Court is satisfied that the wife in whose favour
an order has been made under this section has remarried, or, is
Alimony—Introduction 3
not leading a chaste life, it may, at the instance of the husband

vary, modify or rescind any such order and in such manner as the
Section 40 of Parsi Marriage Act, 1936 is as under:
jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on an application made to it for
the purpose by either the wife or the husband, order that the
defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a
term not exceeding the life of the plaintiff as, having regard to
the defendant’s own income and other property, if any, the
income and other property of the plaintiff, the conduct of the
parties and other circumstances of the case, it may seem to the
Court to be just, and any such payment may be secured, if
necessary, by a charge on the movable or immovable property of
the respondent.
(2) The Court if it is satisfied that there is a change in the
(3) The Court if it is satisfied that the party in whose favour an
order has been made under this section has remarried or, if such
party is the wife, that she has not remained chaste, or, if such
party is the husband, that he had had sexual intercourse with any
woman outside wedlock, it may at the instance of the other party
Section 37 and 38 of Indian Divorce Act, 1869 are as under:
37. Power to order permanent alimony.— The High Court may, if
it thinks fit, on any decree absolute a marriage to be dissolved, or
on any decree of judicial separation obtained by the wife, and the
District Judge may, if he thinks fit, on the confirmation of any
decree of his declaring a marriage to be dissolved, or on any
decree of judicial separation obtained by the wife,
order that the husband shall, to the satisfaction of the Court,
secure to the wife such gross sum of money, or such annual sum
of money for any term not exceeding her own life, as, having
regard to her fortune (if any), to the ability of the husband, and to
the conduct of the parties, it thinks reasonable; and for that
purpose may cause a proper instrument to be executed by all
necessary parties.
Power to order monthly or weekly payments.— In every such case
the Court may make an order on the husband for payment to the
wife of such monthly or weekly sums for her maintenance and
support as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes

unable to make such payments, it shall be lawful for the Court to
discharge or modify the order, or temporarily to suspend the same
as to the whole or any part of the money so ordered to be paid,
and again to revive the same order wholly or in part as to the
Court seems fit.
38. Court may direct payment of alimony to wife or to her
trustee.— In all cases in which the Court makes any decree or
order for alimony, it may direct the same to be paid either to the
wife herself, or to any trustee on her behalf to be approved by the
Court, and may impose any terms or restrictions which to the
Court seem expedient, and may from time to time appoint a new
trustee, if it appears to the Court expedient so to do.
The above provisions are though not identical except some

discerning features which have been dealt with at appropriate places, but
lay down provisions relating to Alimony.
Object
Alimony is not a consequential order of a decree for divorce, but
is a continuing obligation on the party. It is better to provide for the
maintenance of the other party who is weaker between the two. 1
Adultery
An applicant is entitled to maintenance notwithstanding the kind
of matrimonial decree that is passed and the ground on which it is
passed. A decree passed against the applicant on the ground of unchastity
is no bar to his or her claiming maintenance either at the time of passing
such decree or any time subsequent thereto. 2
The Court has ample discretion to grant or refuse maintenance,
and the extent to which the grant the same, depending on the facts and
circumstances of each case. The legislature did not intend to lay down a
rule that in all cases where the claimant has been proved to be unchaste,
he or she should be denied maintenance. On the contrary, the legislative
approach on the subject appears to be liberal, reformative and
conciliatory. The legislature had to be pragmatic on the subject since all
acts of unchastity cannot be painted with the same brush. In one case, a
single fall from virtue may brand a person unchaste while a persistent
unchaste conduct in other case may remain unnoticed for a long time.
Similarly, a person may become a victim of a helpless or an
uncontrollable situation in one case while another case may reveal a
1 Raj Virendra Singh vs. Virendra Singh (Lt. Col.), 1985 (9) DRJ 288
2 See section 37 of Indian Divorce Act, 1869
Alimony—Adultery 5
defiant debaucherous conduct. There may be cases where the opponent is

directly or indirectly a contributory party to the unchaste conduct of the
applicant. The circumstances in which decrees on the ground of
unchastity are passed may also differ from case to case. No two
situations are comparable much less similar. Life is complex and human
behaviour inscrutable and complicated. What is more, in a country like
ours inhabited by social groups with diverse social modes, customs and
practices ethical norms, moral concepts and cultural patterns, no uniform
standard of personal and social conduct including that a matrimonial
fidelity can be laid down. Much less can such conduct be judged by a
single norm. This consideration appears to have weighed with the
legislature in refraining from being dogmatic on the subject, and in
adopting a realistic approach in the matter. The deliberate change in the
language brought about by the amendment amply proves the said intent.
Hence, however repugnant of repulsive may appear the idea to a mind
traditionally steeped in one set of moral code, the section does not
disentitle a party to maintenance even if a decree is passed against him
or her on the ground of unchastity. 1
This view need not therefore oppress even the orthodox mind. If
according to the old law, even a woman who had left her home expressly
for living an adulterous life and had persistently led it for some time,
was entitled to at least a bare subsistence after she renounced it, there is
much to be said in favour of the view that a decree passed on the ground
of unchastity will not by itself be sufficient to disentitle her to
maintenance under the present provisions. It is common knowledge that
the Act has been placed on the statute book to reform the old law by
removing some of its oppressive, unjust and outworn provisions and
introducing modern and progressive measures. It will therefore be
against both the letter and the spirit of the Act to hold otherwise. 2
In another case it was observed that ‘Court is in a dilemma as to
whether to grant the relief of divorce to the appellant, while his hands
are dirty with matrimonial offence. But the unfortunate respondent, who
has suddenly became fertile and cannot resist another man, should not be
allowed to be tied down with the appellant for life. No doubt, status quo
is not the demand of justice. It is also not the demand of social norm.
Status quo will further stagnate the life of these parties. Both need
release from the religious and legal bondage, and to prevent further
bigotry, falsehood and fornication, it is just and proper to separate them
1 Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985)

DMC 83 Bombay.
2 Gulab Jagdusa ibid
now, before further damage is done. The real damage is done to Rajni,
aged 5 years, innocent who does not even know as to who her father is.
My heart bleeds for her. The legendary sexual urge of a female has
burdened this society with Rajni. May God bless this innocent child and
grant her with fortune, intelligence and diving and, thus, to become a
legendary woman of this country. My heart goes out to her predicament.
…. This decree of divorce of divorce is going to cost the appellant
heavily. Keeping in view the appalling condition of inflation, under the
provisions of Section 25 of the Act, it was directed that the appellant
shall pay a permanent alimony to his wife-respondent, Rs. 150/- per
month from the date of this judgment.’ 1
Agreement between parties

Section 25 of the Hindu Marriage Act, 1955 postulates the
exercise of an agreement fixing maintenance. It is by virtue of Section 25
of the Act that the amount of maintenance agreed to in the agreement can
be altered provided there is material change in the circumstances. This is
irrespective of any clause to the contrary in the agreement. When amount
of maintenance has been fixed by the parties in an agreement not only
the parties are entitled to the amount of maintenance but any party to the
agreement can also approach the Court seeking alteration in the amount
of maintenance due to change in circumstances. 2
In another case the parties entered into a compromise with regard
to permanent alimony under Section 125 Criminal Procedure Code, 1973.
Except the bald statement of the wife and the oral rebuttal of the
husband, there was nothing before the Trial Court to infer as to how
much earning the respondent was making. It was in this background that
the Trial Court presumed the income of the respondent husband at
Rs.3,000/- and awarded a sum of Rs.1,000/- as maintenance inspite of
the fact that in her petition under Section 125 Criminal Procedure Code,
1973 she voluntarily accepted the maintenance of Rs.400/- per month.
Therefore, it was held that there was no infirmity in the impugned order. 3
Transfer of property in lieu of maintenance in terms of the deed.
Such document compulsorily requires registration under section 17 and
1 Hargovind Soni vs. Ramdulari, AIR 1986 MP 57: 1986 MPLJ 105:
1986 Mat LR 86: (1986) 1 DMC 457: (1986) 1 Civ LJ 665: (1986) 1
Hindu LR 543: 1986 Cur Civ LJ 228: (1986) 2 Hindu LR 1.
2 Ravi Singhal vs. Manali Singhal, II (2000) DMC 732 Delhi:
2000(87) DLT 658.
3 Asha Alias Darshan vs. Jai Dayal, 1997 (40) DRJ 1
Alimony—Cancellation of order 7
49 of Registration Act, 1908. Such document cannot be looked into for

ascertaining the nature of possession of property. 1
Attachment of property
In one case the petitioner had asked for permanent alimony under
Section 37 of the Act and in case she succeeded in getting the order of
judicial separation under Sections 22 and 23 of the Act in her favour and
against the respondent, she would be entitled to the grant of permanent
alimony. It was held that therefore, there should be left some security in
the form of immoveable properties or otherwise which should be
sufficient and adequate enough for the grant of permanent alimony under
section 37 of the Act and that the house of husband can be adequate
security for the payment of permanent alimony to the petitioner in case it
is granted by the Court because every Court has inherent power to grant
relief during the pendency of the proceedings if the interest of justice so
requires. 2
Cancellation of order
Under Section 25(1) of Hindu Marriage Act, 1955, a gross sum
can be decreed. In terms, sub-s. (3) does not restrict the powers of the
Court to rescind only the payment of monthly and periodical sums. Sub-
section (3) has been widely couched and prima facie it might be made
applicable to rescission of an order awarding a gross sum. Though the
matter is not free from difficulty on account of the inartistic language in
which the section has been worked and the absence of any authority on
the point, on a close scrutiny, the view that a decree awarding gross sum
cannot be rescinded appears to be more reasonable. The difference in
wording in sub-sections (2) and (3) is somewhat significant. Under sub-s.
(2), it the Court is satisfied that there is a change in the circumstances of
either party at any time after the order has been made under sub-s. (1), it
may vary, modify or rescind any such order in such manner as it may
deem just. To illustrate, if the husband had higher income at the time of
the decree, but he becomes indigent later on and is not in a position to
pay the sums towards maintenance, the Court may step in to reduce the
amount. Similarly if the wife gets an employment and earns a substantial
income sufficient to maintain herself, the Court may rescind the order or
decree granting maintenance. Thus in case of change in circumstances,
1 Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo, AIR
1981 SC 1937: 1981(4) SCC 613: 1982(1) SCR 417: 1981(3) Scale
1425
2 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185
Del.
the Court has been given ample power either to vary, modify or rescind
the order. 1
Under sub-section (3), however the Court has been given the
power only to rescind. The word ‘rescind’ means to annual or cancel. If
the conditions prescribed under sub-s. (3) exist, that is, if a party in
whose favour the order has been made remarries, or, if such a party is the
wife and she does not remain chaste, or, if such a party is the husband
and he has had sexual intercourse with any woman outside wedlock, the
Court shall rescind the order. In case of payment of monthly or
periodical sums, the Court can rescind the order as such payments relate
to future payments only. Conferring power on the Court to annul future
payments after accrual of cause of action as prescribed in sub-s. (3)
appears to be reasonable. The same argument does not, however, apply to
rescission of an order granting gross sum, which would amount to
annulment of a past liability and not a future one. Such annulment also
would lead to an absurdity inasmuch as the past dues accruing in favour
of the wife in between decree and the remarriage cannot be rescinded
under the sub-section as such liability constituted an integral part of the
gross sum decreed. The past and future liabilities constituting the gross
sum are not severable. Rescission of such an indivisible liability cannot
therefore be countenanced. 2
Christian law
When the suit filed by the husband was dismissed hence the grant
of maintenance is irregular. Section 36 of the Indian Divorce Act
provides that the wife may present a petition for alimony pending the
suit. The Court on being satisfied on the truth of the statement therein
contained, may such order on the husband for payment to the wife of
alimony pending the suit as it may deem just. Section 15 of the Indian
Divorce Act also provides that in any suit instituted for dissolution of
marriage, if the respondent opposes that relief sought on the ground, in
case of such suit instituted by a husband, of his adultery, cruelty, or
desertion without reasonable excuse, or in case of such suit instituted by
a wife, on the ground of her adultery and cruelty, the Court may in such
give to the respondent on his or her application, the same relief to which
he or she would have been entitled in case he or she had presented a
petition seeking such relief, and the respondent shall be competent to
give evidence of or relating to such cruelty or desertion. Thus, it is seen
that the Court has power to grant maintenance pending suit under Section
1 Nanigopal Chakravarty vs. Renubala Chakravarty, AIR 1965 Orissa

154: 31 Cut LT 205.
2 Nanigopal Chakravarty vs. Renubala Chakravarty ibid.
Alimony—Conduct of parties 9
36 of the Indian Divorce Act and has power to order maintenance under
Section 37 of the Indian Divorce Act only when a decree is made
absolute decelerating the marriage to be dissolved, or on any decree of
judicial separation obtained by the wife. Permanent alimony and
maintenance can only be granted in case divorce is granted and if the
marriage between parties subsists. If the petition by the husband as in the
instant case fails, then no decree is passed, i.e., the decree is denied to
the husband. Alimony, cannot, therefore be granted in a case where a
decree for divorce is reused. Ultimately alimony on a permanent basis as
maintenance is given to an ex-spouse and if a petition fails, then the
marriage still subsist unaltered by the intervention of any decree and the
normal rights of the parties to be found in the legal system under which
they are married has to prevail. Thee is no question of granting alimony
in such cases, because the matrimonial rights of the parties are to be
found in the legal system which operates, requiring one of the parties to
support the other and if there is failure to do so, then the other partner
can seek maintenance by recourse of the civil or criminal Court. There is
no question of granting alimony in such cases. The word “decree” is used
in matrimonial cases in special sense different from that in which it is
used in Civil Procedure Code. 1
Claim in appeal
Merely because a prayer can be made subsequently to the same
court would not defeat the right of appeal of a party. Therefore, it is to
be considered whether this appeal is maintainable. An appeal lies against
an order under Section 25 as provided in Section 28(2). An order under
Section 25 of the Act envisages either refusal of the relief or grant of the
same. Therefore when a Court has power to deal with an application
subsequent to the decree in a proceeding, ignoring the same cannot be
said to be an order. In the circumstances there being no order under
Section 25 of the Act, the appeal is not maintainable. 2
Conduct of parties
Apart from the property or income available to either the husband
or the wife, the relevant factor is the conduct of the parties by which one
may reasonably understand the conduct not merely of a wife who applies
1 Winfred Dhanraj Sameul vs. Betsy Ratnakumari, II (1992) DMC

219 Mad.
2 Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184:
(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Cut LT 417:
(1987) 1 Hindu LR 222.
for or claims alimony but also of the husband in relation to their life
together as husband and wife. 1
In Patel Dharmshi Premji vs. Bai Sakar Kanji, 2 permanent
alimony and maintenance were claimed long after the passing of the
decree of divorce, and the person who claimed maintenance was also
guilty of not obeying the decree for restitution of conjugal rights. When
an objection was taken that Section 25 cannot be invoked by a wife after
a decree of divorce had been passed against her and an erring wife
cannot maintain an application under Section 25 of the Hindu Marriage
Act, the Court held that under Section 25, permanent alimony can be
granted to a wife even after a decree of divorce had been passed against
her as that section specifically use the words “at any time subsequent
threreto” and that maintenance can be granted thereunder even to an
erring spouse and that the mere fact that the wife did not comply with the
decree for restitution of conjugal rights and that was the cause for
passing of a decree against her, cannot by itself disentitle her to claim
permanent alimony under the section. In that case, Bhagwati, J., as he
then was, referred to the following observations of Denning, LJ., in
Sydenbam vs. Sydenbam and Illingworth. 3
“There is nothing in the statute to say that a wife against whom a
decree has been made cannot be awarded maintenance, and there
is nothing in it about discretion being exercised in favour of one
side or the other or about a compassionate allowance. All it says
is that on a decree of divorce the Court may award maintenance
to the wife. This includes a guilty wife as well as an innocent one
but, in awarding maintenance the Court must have regard, of
course, to the conduct of the parties.”
His lordship also referred to the observations of Hodson, LJ in
Clear vs. Clear, 4 wherein a difference has been made in a common law
right to get maintenance and the right to get maintenance arising by
virtue of divorce legislation, and that even it the wife has forfeited her
right to get maintenance under the common law, she is entitled to get
maintenance under a provision of the divorce legislation. After making
reference to the above observations of Denning LJ and Hodson LJ., it
was pointed out in the Gujarat Case that under Section 25 Hindu
Marriage Act, 1955, permanent alimony can be granted to even an erring
spouse and that the fact that the wife was the guilty spouse can only be
1 Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB).

2 AIR 1961 Gujarat 150 (DB)
3 (1949) 2 All ER 196.
4 (1938) 2 All ER 353
Alimony—Conduct of parties 11
taken as a relevant factor in assessing the conduct of the parties and in

determining the amount of permanent alimony. 1
It may be noted that the conduct of the parties is otherwise a
relevant criterion under section 37 of Divorce Act, 1869.
In case, the marriage has been dissolved under Section 13(1) (ia)
of Hindu Marriage Act, 1955 on the ground that the wife was living in
adultery or was leading an immoral life, her application for permanent
alimony may be dismissed on the ground that even after the decree of
divorce she continues to lead such a life. 2
In case on non compliance of decree for restitution of conjugal
rights, the wife could show that although she did not comply with the
decree for restitution of conjugal rights she could provide some cause to
live away from the husband by supporting the same by evidence. But she
had not raised any plea whatsoever as to why she is willing to live away
from her husband. In execution proceedings her stand was that she had
danger to her life. In those proceedings, she led no evidence on that
aspect of the matter and if on perusal of that evidence it could be
concluded that there was really some apprehension to her from the side
of the husband of her-in-law, probably, she would have had a good case
but when no evidence having been brought on record, the fact remains
that as a wife, she wants to live away whereas the dicta of law is that she
must go with her husband. In such case of divorce the tie of marriage
ceases to exist between the parties and after divorce, the former husband
cannot say that he is prepared to keep his former wife in his house and
will provide her all necessities of life. After divorce she has to live away
and for that she becomes entitled to maintenance in law except in few
cases like re-marriage, on becoming unchaste or for certain allied
matters. But in the present case the tie of husband and wife still
continues in spite of grant of decree for restitution of conjugal rights and
for that reason the husband is very much right is saying that she should
come and live with him so that he can provide her with all necessities of
life. If in spite of being wife she does not want come and live with the
husband, she is not entitled to claim permanent alimony. 3
Another view has been taken by Madhya Pradesh High Court
holding that for determining the case for grant of application under
1 Rajagopalan vs. Kamalammal, I (1982) DMC 171 Madras: AIR 1987

Mad 187: 94 Mad LW 695: (1981) 2 Mas LJ 359: 1982 Hindu LR
23.
2 Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5:
1982 Rajdhani LR 622.
3 Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H.
Section 25 of the Act the effect of non-reconciliation on the part of the

parties should not be blown out of all the proportions. In this case, the
wife had deserted the husband and consequently a decree of divorce was
granted. It was held that in a Court of law it would be almost impossible
to find out the true facts regarding the justification of the conduct of
wife. She was required to live with the parents of the husband. She
would not able to prove fact for justifying her conduct. The fact remains
that she was required to live in strange place without the support of the
persons who could adjust with her despite her defects. In that situation
refusal of wife to live with the husband may have some justification
which she was unable to prove in accordance with law. Consequently,
the Court may objectively consider conduct of the husband too along
with that of wife or coming to just conclusion. The Court cannot take one
sided view of the matter. 1
After adopting the above line of reasoning it was further held that
the wife cannot permanently live with her parents for the simple reasons
her parents are likely to out live her in normal circumstances where she
will go. She is, therefore, entitled to maintenance and it is the legal duty
of the husband under Section 25 of the Act to divorcee wife. Considering
the case of the appellant with this circumstances along with other
circumstances of the case it was held that the application of the wife was
not rightly rejected by the Court below. 2
Consent decree
The whole purpose of Section 19(2) of the Act was that if
conciliation between the parties has been arrived at, the parties are
bound by it and cannot wriggle out of it. This is the reason why it has
been provided against a decree passed on the basis of compromise. If the
arguments of learned Counsel for the appellant were to prevail it would
mean that the object of the Act, i.e. conciliation and early settlement of
disputes between the wife and husband would be fraught with danger and
would be completely outside the aims and objects of the Act. We are
accordingly of the considered opinion that in view of the provisions of
Section 19(2) of the Act no appeal would be maintainable against the
judgment decree of divorce based on conciliation between the parties. As
the appeal itself is not maintainable the other submissions need not be
considered. 3
1 Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP.

2 Archana Singh vs. Dharampal Singh, ibid.
3 Ajay Kapoor vs. Pramila Kapoor, I (1992) DMC 85 All.
Alimony—Considerations for granting alimony 13
Considerations for granting alimony

In the matter of payment of permanent maintenance by the Privy
Council in Ekradeshwari vs. Rameshwar, 1 as under:
“Maintenance depends upon a gathering together of all the facts
of the situation, the amount of free state, the past life of the
married parties, and the families, survey of the condition and
necessities and rights of the members on a reasonable view of
change of circumstances possibly required is the future, regard
being of course had to the scale and mode of living, and to the
age, habits, seats (?) and class of life of the parties. In short, it is
out of a category of circumstances, small in themselves, that a
safe and reasonable induction is to be made by a court of law in
arriving at a fixed sum.” 2
While fixing permanent alimony and maintenance under Section
25 of the Hindu Marriage Act, 1955, the court is expected to make
detailed inquiry and has to take into account not only the income but
other properties of the parties, their conduct and other circumstances of
the case that the court might consider relevant.
The following principles 3 would appear to be relevant for the
purpose:
(1) position and status of the parties;
(2) reasonable want of claimant (towards food, clothing, shelter,
medical attendance and treatment, education and the like);
(3) income of the claimant;
(4) income of the opposite party;
(5) number of persons opposite party is obliged to maintain.
Two corollaries may be added here:
(1) In arriving at the income of a party only involuntary
deductions like income-tax, provident fund contribution, etc. are
to be excluded; and
(2) though under the law opposite party may to be obliged to
maintain brother or sister but if that brother or sister having no
income is living with the opposite party as member of his family
and where either there are no parents or are unable to maintain
themselves, the court may in a given circumstance consider the
expenses to be incurred on the maintenance of brother or sister by
the opposite party.
1 (1929) 56 IA 182
2 Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984)
DMC 11 Bombay.
3 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
After all, court cannot be expected to adopt a mechanical

approach while interpreting the provisions of law incorporating
principles of social justice like Section 24 of the Act. 1
Where the parents were facing problem of life of such daughter in
all matters and ultimately, in the net analysis, the divorced daughter
would be left alone, cursed by the society and a burden on herself both,
socially and economically. She may or may not have any shelter to live
in it and bread to eat. In the instant case, she is illiterate admittedly and
that would add insult to injury because she would not be able to earn
anything. The remarriage is very difficult, for-fetched proposition in
most of the communities amongst Hindus. In view of this, permanent
alimony should be substantially a relief to her at least. 2
Contracting out
The case of Hirabai Bharucha vs. Pirojshah Bharucha 3 stems
from proceeding under Section 40 of the Parsi Marriage and Divorce Act
1936. under this provision, a Court is authorised to award permanent
alimony to a wife either at the time of he passing of any decree under
that Act or subsequently thereto. The wife is granted a decree of divorce.
After the decree is passed, the husband and wife arrive at certain consent
terms. One of the terms of the consent order is:
“This Court both declare that the defendant hereby agree not to
claim any alimony now or at any time in future”.
The wife applied under Section 40 for alimony. It was held that
on grounds of public policy the wife cannot enter into a contract that she
will not claim any alimony in future. The contract was void and the
Court will take notice of that and ignore that part of the order although it
was made by consent. Reliance was placed upon a remark of Lord Atkin:
“The wife’s right to future maintenance is a matter of public
concern which she cannot barter away.”
Accepting this proposition, the court in above case took the view
that the wife can not barter away her right to future maintenance and
enter into a contract to that effect and such a contract will be a void
contract in the eye of law.
(2) DMC 110: 1988 RLR 428
2 Shanti Devi vs. Raghav Prakash, II (1985) DMC 85 Raj: (1985) 1
WLN 437: 1985 Rajasthan LR 536: (1985) 2 Cur CC 305: (1985) 2
Hindu LR 301: AIR 1985 Raj 13
3 AIR 1945 Bombay 537
Alimony—Death of husband 15
In another case arising out of Hindu Marriage Act, 1955 it was

held that assuming a wife gives up her right to claim a higher rate of
maintenance allowance in future, her consent will not bring into
existence a valid contract. Such an agreement will not only defeat the
provisions of Sub-section (2) of Section 25 but will also frustrate the
purpose of giving maintenance. Judicial notice can be taken of rising
prices with the result that the cost of bare existence is regularly rising,
rather mercurially. In principle, it makes no difference between an
agreement by a wife not to claim any alimony at all and an agreement not
to claim any enhancement of the rate of maintenance allowance,
whatever be the change in the circumstances. 1
Death of husband
One view is that the payment of alimony is, by its very nature, a
personal obligation and this being so, it must inevitably come to an end
with the deceased husband no longer being there to fulfil it. Further, it is
equally clear that the amount payable as alimony does not ipso facto
become a charge on the respondent’s property. A plain reading of
Section 25 of the Act would show that such a charge can be created only
by a specific order to that effect in terms of the provisions thereof. In
other words, the section contains en enabling provision regarding
creation of a charge on the immoveable property of the respondent to
secure the payment of alimony, but it nowhere lays down that such a
charge shall be inherent in an order awarding alimony. Admittedly, no
such order had been passed in the present case. Alimony, being at any
rate a right enforceable against the husband in personam, it must be
deemed to have ceased with the death of the husband. 2
However another view is that there is no rationality in the
contention that a decree for maintenance or alimony gets extinguished
with the death of the husband when any other decree even though not
charged on the husband’s property would not get so extinguished. A
decree against the husband is executable against the estate of the
husband in the hands of the heirs and there is no personal liability. In
law a maintenance decree would not make any difference. The decree
indicates that maintenance was payable during the life time of the
widow. To make such a decree contingent upon the life of the husband is
contrary to the terms and the spirit of the decree and the appellant has
1 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
2 Mst. Gurdev Kaur vs. Mst. Channo, AIR 1986 P&H 251: (1985) 2
Hindu LR 591: ILT (1986) 1 P&H 208: 1985 Recent Laws 205: 1985
(2) 88 Pun LR 603: 1986 Marri LJ 371.
taken a stand that though the widow is alive, the decree obtained by her
would become ineffective with the passing away of the husband. 1
Where maintenance has been made a charge on the husband’s
estate, the death of the husband would not at all affect the decree and not
withstanding such death, the estate can be proceeded against for
realization of the maintenance dues for post-death period. 2
In regard to the Special Marriage Act it was held that it was a
statute of 1954 made by the Indian Parliament after independence. For
the interpretation of a provision of this statute there is no warrant to be
guided by English decisions. There is no ambiguity in Section 37 for the
interpretation of which it is necessary to go beyond the provision itself.
It is one of the settled principles of interpretation that the Court should
lean in favour of sustaining a decree and should not permit the benefit
under a decree to be lost unless there be any special reason for it. In
incorporating a provision like Section 37 in the Act, Parliament intended
to protect the wife at the time of divorce by providing for payment of
maintenance. If the husband has left behind an estate at the time of his
death there can be no justification for the view that the decree is wiped
out and the heirs would succeed to the property without the liability of
satisfying the decree. 3
Discretion of Court
Sub-section (3) provides for varying, modifying or rescinding of
the order of maintenance in two eventualities viz. the beneficiary of the
maintenance order has remarried or has not remained chaste. Even in
such case the maintenance order is not necessarily to be varied, modified
or rescinded but may be varied or modified or rescinded or only varied or
modified instead of being rescinded and that too in such manner as the
court may deem just. The history of the sub-section shows that prior to
its amendment by Act 68 of 1976, for the words “it may at the instance
of the other party vary, modify or rescind any such order in such manner
as the court may deem just” the words were ‘it shall rescind the order”.
The deliberate change which the legislature has made in the language of
the sub-section therefore shows that the Court is given a wife discretion
in the matter depending upon the facts of each case. It is necessary to
emphasize this discretion vested in the Court 4 discussed above, appear to
1 Aruna Basu Mullick vs. Dorothea Mitra, II (1983) DMC 289

Supreme Court.
2 Aruna Basu Mullick vs. Dorothea Mitra, ibid
3 Aruna Basu Mullick vs. Dorothea Mitra, ibid.
4 the decisions in AIR 1967 Kerala 181 and AIR 1970 J&K 150 were
dissented
Alimony—Dismissal of proceeding 17
have proceeded on the assumption that this sub-section vests no

discretion in the Court and the court has to cancel the order of
maintenance once unchastity of the party is proved. It has also to be
remembered that these decision were prior to the amendment of sub-
section (3). 1
Disentitlement
Wife committing act causing miseries to husband and continue to
harass the husband even after the dissolution of marriage. Rarest of rare
case in which wife extracted further sum with the help of police from the
husband, it was held that the amount of alimony cannot be enhanced any
further. 2
The effect of non-reconciliation on the part of the parties should
not be blown out of all the proportions. In this case, the wife had
deserted the husband and consequently a decree of divorce was granted.
In a Court of law it would be almost impossible to find out the true facts
regarding the justification of the conduct of wife. She was required to
live with the parents of the husband. She would not able to prove fact for
justifying her conduct. The fact remains that she was required to live in
strange place without the support of the persons who could adjust with
her despite her defects. In that situation refusal of wife to live with the
husband may have some justification which she was unable to prove in
accordance with law. Consequently, the Court may objectively consider
conduct of the husband too along with that of wife or coming to just
conclusion. The Court cannot take one sided view of the matter. Wife
cannot permanently live with her parents for the simple reasons her
parents are likely to out live her in normal circumstances where she will
go. She is, therefore, entitled to maintenance and it is the legal duty of
the husband under Section 25 of the Hindu Marriage Act, 1955 to
divorcee wife. 3
Dismissal of proceeding
The word ‘decree’ as used in Section 25 cannot be understood in
a sense different from that, in which it is used in other provisions of the
Act. No doubt, the Code of Civil Procedure gives a different definition to
the word ‘decree’ than that in Hindu Marriage Act, 1955. Alimony can
be granted on a proper construction of the Act only when a decree has
been passed of the type mentioned earlier. If a decree has been passed of
1 Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985)

DMC 83 Bombay.
2 Kiran Mandal vs. Mohini Mandal, 1995 (1) DMC 312 P&H (DB)
the type mentioned earlier. If a decree is refused, then no order for

alimony can be passed. The word ‘decree’ is used in matrimonial cases
in a special sense different from that in which it is used in the Code of
Civil Procedure. There is no doubt that alimony cannot be granted in a
case where a decree is for divorce other decree is refused because in such
a case the marriage still subsists. 1
The fact that the petition of the petitioner spouse was dismissed
would not be a bar to the granting of maintenance to the successful
spouse. Depriving the respondent of the alimony granted to her would be
to leave her destitute, for she certainly does not have the means to live.
The only relation she has in the world is a brother who is not in a
position to give her succour which is inferred from the fact that she was
put up with all manner of humiliation rather than take a refuge with her
brother. Where a woman is so defenceless, it would be a travesty of
justice if technicalities prevail and deprive her of the small consolation
which she has got by way of future alimony. 2
The other view is that when the application filed for divorce is
dismissed, there is no decree within the meaning of “any decree” in
Section 25 of “the Act”. Therefore, the application filed by the wife for
permanent alimony under Section 25 of the “the Act” will not lie. 3
The expression “passing any decree” has been given a meaning of
decree whereby relief has been granted, a decree as contemplated in
Section 9 to 13 and this expression has not been given a meaning so as to
include the dismissal of the petitions contemplated under Section 9 to
13. 4
The language of Section 25 is plain enough to indicate that the
Court is not entitled to pass such an order while dismissing the petition.
The words “at the time of passing any decree” do not include the case of
a dismissal. The passing of an order of dismissal cannot be regarded of
the passing of a decree. 5
1 Sushma vs. Satish Chander, II (1983) DMC 255 Delhi.

2 Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR
1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495:
(1989) 1 Hindu LR 708.
3 P. Shankar vs. P. Vasanthi, AIR 1995 AP 155 (DB): 1995 (2) DMC
313 (DB) AP
4 Darshan Singh vs. Mst. Daso, AIR 1980 Raj 102: 1979 WLN 412:
1979 Raj LW 546: 1980 Hindu LR 454: 1980 Mat LR 244: 1979
WLN 695.
5 Akasam Chinna Babu vs. Akasam Parbati, AIR 1967 Orissa 163:
ILR (1967) Cut 439.
Alimony—Dismissal of proceeding 19
The words, ‘at the time of passing any decree or any time
subsequent thereto’ indicate that an order for permanent alimony or
maintenance can only be made when a decree granting substantive relief
is passed. However, the relief of permanent alimony cannot be given
where the main petition for relief under the Act such a divorce judicial
separation, etc. is dismissed or withdrawn. 1
When a Court has power to deal with an application subsequent to
the decree in a proceeding, ignoring the same cannot be said to be an
order. In the circumstances there being no order under Section 25 of the
Act, the appeal is not maintainable. 2
Permanent alimony and maintenance under Section 25 of Hindu
Marriage Act, 1955, can only by granted in case divorce is granted and
not if the marriage subsists. The word ‘decree’ is used in matrimonial
cases in a special sense different from that in which it is used in Civil
Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means
the passing of the decree of divorce, restitution of conjugal rights, or
judicial separation and not the passing of a decree dismissing the
petition. If the petition fails then no decree is passed, i.e., the decree is
denied to the applicant. Alimony, cannot therefore, be granted in a case
where a decree for divorce or other decree is refused because in such a
case the marriage subsists. 3
The words “at the time of passing any decree or at any time
subsequent thereto” contemplate that the jurisdiction under Section 25 can be
exercised only when the main petition is allowed and a decree as
contemplated by Section 9 to 13 is passed by the Court. For example, had the
application for divorce been allowed, the Court would have been competent
to pass an order under Section 25. The view that when the main petition is
dismissed, the Court has no jurisdiction to pass any order under Section 25 of
Hindu Marriage Act, 1955, is supported by a large number of authorities.4
1 Badri Prasad vs. Urmila Mahobiya, AIR 2001 Madhya Pradesh 106.
(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Vut LT 417:
(1987) 1 Hindu LR 222.
3 Ranganatham vs. Shyamala, AIR 1990 Mad 1.
4 Darshan Singh v. Daso, 1 (1981) DMC 210. Gurcharan Kaur v.
Ram Chand, AIR 1979 P&H 206, Hiralal v. Lilavati AIR 1961
Gujarat 202, Shantaram v. Hirabai, AIR 1962 Bom 27, Minarani v.
Dasarath, AIR 1963 Cal. 428 and Akasam Chinna v. Parbati AIR
1967 Orissa 162.
The divergence of judicial opinion of different High Courts as

above, however, has been set at rest by the Apex Court in Chand
Dhawan (Smt) vs. Jawaharlal Dhawan 1:
“It is difficult to come to the view that a claim which is ancillary
or incidental in a matrimonial court under the Hindu Marriage
Act could be tried as an original claim in that court; a claim
which may for the moment be assumed as valid, otherwise
agitable in the civil court under the Hindu Adoptions &
Maintenance Act, 1956. As said before, these two enactments
keeping apart, the remaining two i.e., Hindu Succession Act,
1956 and Hindu Minority & Guardianship Act, 1956 are a
package of enactments, being part of one socio-legal scheme
applicable to Hindus. When distinctive claims are covered
distinctly under two different statutes and agitable in the courts
conceived of thereunder, it is difficult to sustain the plea that
when a claim is otherwise valid, choosing of one forum or the
other should be of no consequence. These are not mere procedural
technicalities or irregularities, as termed by one line of reasoning
by some of the High Courts. These are matters which go to the
root of the jurisdiction. The matrimonial court, a court of special
jurisdiction, is not meant to pronounce upon a claim of
maintenance without having to go into the exercise of passing a
decree, which implies that unless it goes onwards, moves or leads
through, to affect or disrupt the marital status between the
parties. By rejecting a claim, the matrimonial court does make an
appealable degree in terms of section 28, but neither affects nor
disrupts the marriage. It certainly does not pass a decree in terms
of section 25 for its decision has not moved or done anything
towards, or led through, to disturb the marriage, or to confer or
take away any legal character or status. Like a surgeon, the
matrimonial court, if operating, assumes the obligation of the
post operatives, and when not, leaves the patient to the
physician.” 2
Therefore in view of above a claim or an order granting alimony
is not permissible if the original proceedings resulted in dismissal of
petition of the plaintiff.
Distinction with maintenance

Section 25 of Hindu Marriage Act, 1955 lays down that at the
time of passing the decree or thereafter the Court is competent to pass an
order for maintenance or support. This is to be on the basis of an
application. Ss. 9 to 13 and 23-A use the word ‘petition’. Ss. 24 and 25
1 (1993) 3 SCC 406: 1993 AIR SCW 2548: 1993 (3) SCR 954: 1993
(2) DMC 110
2 Chand Dhawan vs. Jawaharlal Dhawan, SCR 1993(3) 954.
Alimony—Divorce due to mental disorder 21
use the word ‘application’. Thus, the Legislature made a distinction

between a petition and an application. Section 25 does not envisage
arrears of maintenance. This deals with the future. Moreover, the
Legislature intends that the power under Section 25 to be exercised on
the basis of an application. Application to a Court requires proper fee to
be paid. He mandatory provision of Section 6, Court-fees Act, provides
that no Court shall receive a document which is not supported by proper
fee. Written statement does not require any fee. The assertion is that
court-fee of about Rs. 2,000/- is payable. All these factors indicate that
the claim is not one under Section 25 of the Act. Being a benevolent
provision the prayer could have been considered liberally to convert the
same to one under section 25 of the Act. 1
Divorce due to mental disorder

In one case husband sought to deny the wife, the alimony on the
ground that she was suffering from mental disorder. The husband had
met his wife before the accepted the proposal of marriage with her. This
being so, the husband had the opportunity to meet and talk to his wife
before he accepted the proposal of marriage. In this background it was
observed:
‘It cannot be said that the respondent-wife was guilty of any
matrimonial offence or any blameworthy conduct and the ground
for granting the decree of divorce is also not such. This being so,
the exercise of discretion is granting permanent alimony must
depend on property and moral justice. This is a case in which the
respondent wife cannot be blamed for the marriage ending in a
divorce. The husband himself did not choose to apply for a decree
of nullity on the ground that the marriage was in contravention of
the condition specified in Clauses (ii) of Section 5 of the Act,
because the wife was suffering from mental disorder even prior to
the marriage. This conduct of the husband indicates that the
husband himself did not believe that the wife was suffering from
mental disorder prior to the marriage. He applied for and obtained
divorce on the basis that the marriage was valid. In view even of
this conduct of the husband indicates that the husband himself did
not believe that the wife was suffering from mental disorder prior
to the marriage this position, it would not be just and proper to
take into consideration the alleged earlier mental illness of the
wife as a circumstance for determining the amount of permanent
alimony. We much proceed on the basis that the mental disorder
on which ground decree for divorce has been granted was not in
existence prior to the marriage. In these circumstances, there can

(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Cut LT 417:
(1987) 1 Hindu LR 222.
be no occasion to refuse to grant permanent alimony since

exercise of discretion under Section 25 of the Act cannot justify a
total refusal to grant any permanent alimony.’ 1
Effect of desertion
No ‘dry and cut’ solution can be found out for measuring the
conduct of desertion in terms of reduction in quantum of maintenance.
However, when the legislature has introduced an amendment in Section
25 of Hindu Marriage Act, 1955, it cannot be treated as redundant and
should be given effect to logically and legally. It was further held
‘Undoubtedly, the wife in the present case deserted the husband, did not
reconcile and return to the husband during the pendency of the first
litigation of restitution of conjugal rights. She insisted on remaining
separately even when a decree for restitution of conjugal rights was
passed, and forced the husband to file a petition for dissolution of
marriage, and now the marriage has been dissolved, for which she alone
is responsible, she cannot persuade this Court for grant of such
maintenance which should be enough for maintaining her and also
meeting the expenses should be enough for maintaining her, and also
meeting the expenses of the medicines. It is self-invited trouble, for
which none else but she is responsible. The act of desertion which was
done initially and which has been consistently followed by her, in no
case can put premium over her conduct.’ 2
The fact that the wife deserted the husband and that conduct
should be considered while deciding the question of permanent
maintenance now assumes importance, because admittedly the lower
court has not considered this aspect of the matters. It is true that no ‘dry
and cut’ solution can be found out for measuring the conduct of desertion
in terms of the reduction in quantum of maintenance. However, when the
legislature has introduced this amendment in Section 25, it cannot be
treated as redundant and should be given effect to logically and legally.
Undoubtedly, the wife in the present case deserted the husband, did not
reconcile and return to the husband during the pendency of the first
litigation of restitution of conjugal rights. She insisted on remaining
separately even when a decree of restitution of conjugal rights was
passed, and forced the husband to file a petition for dissolution of
marriage, and now the marriage has been dissolved, for which she alone
1 Mukesh Mathur vs. Veena Mathur, II (1989) DMC 525 Raj: (1988)
Raj LW 676: (1988) 1 Rajasthan LR 854: (1988) 2 Civ LJ 718:
(1989) 2 Cur CC 499.
2 Umesh Chand vs. Rameshwari Devi, I (1982) DMC 211 Raj: AIR
1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982 Hindu LR
172: 1982 Raj LR 21.
Alimony—Entitlement only after divorce 23
is responsible, she cannot persuade this Court for grant of such

maintenance which should be enough for maintaining her, and also
meeting the expenses of the medicines. It is self-invited trouble, for
which none else but she is responsible. The act of desertion which was
done initially and which has been consistently followed by her, in no
case can put premium over her conduct. 1
Effective date of modification

Sub-section (3) of Section 25 of Hindu Marriage Act, 1955
empowers the Court to rescind, vary or modify an order under Section
25(1) in certain conditions mentioned in Sub-section (3) itself at the
instance of the other party i.e. party other than the party to whom
alimony has been granted. That being so, the order varying, modifying or
rescinding the order of alimony cannot go beyond the date of the
application for varying, modifying or rescinding that order because it is
only when such a motion is made that the Court gets jurisdiction to very,
modify or rescind that order. 2
Employed wife
To grant permanent alimony under Section 25 of the Hindu
Marriage Act, 1955 or not, is a discretion of the Court. Permanent
alimony can be granted only when the wife has no sufficient independent
source of income. In one case both the lower Courts, considering the
evidence on record and particularly, the conduct of the wife, refused to
grant permanent alimony to her. It was amply proved that the husband
tried his level best to bring back the wife for leading a peaceful marital
life. Similarly, efforts for reconciliation were made even after a decree
of restitution of conjugal rights was passed by the lower Courts, but it
was found that the wife was not ready to join the society of her husband
though the husband was ready to join the society of his wife. The learned
Counsel for the wife stated that the wife was working as a Laboratory
Assistant in the school at Paratwada and getting more than Rs.2000/- pm.
On these facts it was held that the wife being an earning member, she
was not entitled for the permanent alimony under Section 25 of the
Hindu Marriage Act, 1955. 3
1 Umesh Chand Sharma vs. Rmeshwari Devi, II (1982) DMC 261

Raj: AIR 1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982
Hindu LR 172: 1982 Raj LR 21.
2 Mohinder Singh vs. Manjeet Kaur, II (1983) DMC 284 Raj.
3 S. Rashmi Pradip Kumar Jian vs. Pradeep Kumar, 1994 (2) DMC
25 Bom
Entitlement only after divorce

Permanent alimony and maintenance under Section 25 of the
Hindu Marriage Act can only be granted if divorce is granted but not
during the subsistence of the marriage. The word ‘decree’ used in
matrimonial cases in a special sense different from that in which it is
used in the Code of Civil Procedure. The use of the words ‘decree’ in
Section 25 of the Hindu Marriage Act means the passing of the decree of
divorce, restriction of conjugal rights or judicial separation and not the
passing of a decree through which the petition itself is dismissed because
if the petition fails then no decree is passed. In other words, in such
cases decree is denied to the applicant. Obviously, alimony cannot,
therefore, be granted in a case where a decree for divorce is refusal
because in such a case the marriage will subsist. 1
The power to grant alimony, contained in Section 25 of the Hindu
Marriage Act, has to be exercised when the Court is called upon to settle
the mutual rights of the parties after the marital ties have snapped by
determination or variation by the passing of the decree, or a type
mentioned in Section 10, 11, and 13 of the Act, read with Section 23, 26
and 27 of the Act, a decree can be assumed to have been passed when an
application for divorce or similar other relief is granted but surely not
when the application is dismissed. 2
Formal application
The jurisdiction under Section 25 is attracted “on application
made to it (Court) for that purpose by either the wife or the husband. In
the absence of an application, the Court has no jurisdiction to pass an
order under Section 25. 3
Claim under Section 25 of the Act has to be made on an
application furnishing all details regarding his or her own income or
other property. Further an opportunity to be given to the other side to put
forth his/her defence. Only on application an order has to be passed by
the Court granting, “permanent alimony” and “maintenance” under
Section 25 of the Act. 4
The absence of an application under Section 25 Hindu Marriage
Act, 1955 gave rise to want of essential preliminaries prescribed by the
1 Vinod Chandra Sharma vs. Rajesh Pathak, II (1987) DMC 150 All:
(1987) 1 Hindu LR 558: (1987) 1987 Mad LR 369.
2 Vinod Chandra Sharma vs. Rajesh Pathak ibid
3 Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP.
4 D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB):
AIR 2001 Madras 147.
Alimony—Insufficient income 25
law for clothing the court with the jurisdiction to act under Section 25.
This defect of jurisdiction made the order a nullity and so non-
executable. Although the executing Court cannot go behind the decree or
order which it is required to execute, it can examine the question whether
the decree or order is a nullity or not for lack of jurisdiction. 1
However another view is that the Section 25 when it speaks of an
application does not specify that the same has to be in writing. An
application can be in writing as also by word of mouth. The fact that the
trial Court passed an order for alimony would imply that an oral
application had been made to it. 2
Grant of alimony in civil suit

If Section 25 of Hindu Marriage Act, 1955 conferred a right that
right could be worked out even in collateral proceedings if it be correct
that the declaration of nullity of such a marriage could be rendered in
such proceedings. Therefore, it will have to be found that widow is
entitled to rely on the principles of Section 25 of the Hindu Marriage Act
and to invoke the powers of the Court for making provisions for just and
fair maintenance. 3
Even apart from Section 25 of the Hindu Marriage Act, in such
matter the Court possesses the inherent power to make such orders in
matter of maintenance as may be necessary so as to meet the ends of
justice. The principles underlying Section 151 of the Civil Procedure
Code are no more in doubt. Where the need and the circumstances to do
justice require, the power to act ex debito justitiae exists and can be
invoked. 4
Insufficient income
It most cases the standard of living of one or both of the parties
will have to suffer because there will be two families to support instead
of one. When this occurs, the court clearly has to decide what the
priorities are to be and where the inevitable loss should fall. The wife is
the financially dependent spouse. She is potentially likely to suffer
greater financial loss from the dissolution or annulment of the marriage
1 Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP.

(1989) 1 Hindu LR 708.
3 Rajeshbai vs. Smt. Shantabai, AIR 1982 Bombay 231: (1981) 83
Bom LR 327: 1981 Bom CR 699: 1981 Mah LJ 820: 1981 Mah LR
292: 1982 Mat LR 41: 1982 Hindu LR 445.
4 Rajeshbai vs. Smt. Shantabai ibid
than the husband. But her need cannot be denied. Having regard to all the
circumstances of the case the court has to award a reasonable amount. 1
The fact that the salary of Rs. 328/- is insufficient for the
maintenance of the father and his two sons in not a ground which ought
to be taken against wife. 2
Interim order
In one case the petitioner/wife had asked for permanent alimony
under Section 37 of the Divorce Act and in case she succeeds in getting
the order of judicial separation under Sections 22 and 23 of the Act in
her favour and against the respondent, the petitioner will be entitled to
the grant of permanent alimony. Therefore, there should be left some
security in the form of immoveable properties or otherwise which should
be sufficient and adequate enough for the grant of permanent alimony
under section 37 of the Act and that aforementioned house in Green Park
can be adequate security for the payment of permanent alimony to the
petitioner in case it is granted by the Court. Every Court has inherent
power to grant relief during the pendency of the proceedings if the
interest of justice so requires. 3
Lawyer wife
In one case Husband possessed Master Degree in Social Work
and also Law Degree. Wife was an Advocate. However, she had started
her professional career only after dissention arose between the parties. It
is stated that husband was having no employment at present. In these
circumstances it was held as under:
‘Be that as it may, a wife in such circumstances is always to be
protected. In our Society a husband can get easily married but our
Society has not changed far to accept a divorced wife to be
married again in normal circumstances. Legal Profession for the
beginner is very hard. Husband has liability to maintain a wife.
Husband has approached Court for divorce. Therefore, he is to
pay some alimony to the wife. With gradual experience wife will
have her own income from the profession if she proves
successful. She may also get married if a suitable match is
available. Keeping all these circumstances a monthly payment of
Rs. 500/- (five hundred) would be adequate. Monthly payment by
itself is continuing process and may cause difficulty to both the
parties.’
1 Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi.

2 Sheela vs. Tungal ibid
Del
Alimony—Maintenance continued as alimony 27
It was also directed that the husband shall pay alimony of a

consolidated sum of Rs. 50,000/- (fifty thousand) to the wife to be paid
in four quarterly instalments of Rs. 12,500/- each quarter. It was also
held that in default of payment of any two instalments, the balance
amount can be realised by execution and if the respondent gets married
during the period of one year, further instalment payable shall not be
paid. 1
Lump-sum payment
In one case wife, with whom the son born out of wedlock was
living, has no income or property of her own has not been disputed. It
appeared from the evidence on record that she has been living in the
house of her brother. The son was aged twelve and was school going.
The father of child and the husband used to serve in the Government of
India Press and he had already retired on attaining the age of
superannuation. It was also found that he made default in payment of
alimony pendente lite. So in these facts and circumstances of the case it
was held that it would be reasonable that a gross sum should be awarded
as permanent alimony. Thus it was held to be reasonable to grant a gross
sum of Rs. 30,000/- as permanent alimony to be paid by the petitioner-
husband to the respondent-wife. 2
Maintenance continued as alimony

In the social reality in the Indian Society a divorced wife would
be materially at a great disadvantage. The Supreme Court in Saroj Rani’s
case 3 directed that even after the final decree for divorce, the appellant-
husband would continue to pay maintenance to the wife. This case was
also followed by Kerala High Court and the amount of maintenance at
the rate of Rs. 250/- per mensem was directed to be paid as alimony until
wife remarries. It was also left open to the parties to file proper
application before the lower Court for variation of the order if
circumstances change necessitating variation. 4
While allowing the appellant’s prayer for granting alimony
pendente lite, the Court below found that she did not earn any income
and did not own and property and, therefore, directed payment to her at
1 Mahir Narayan Mohanty vs. Sadyalaxmi Patnaik, I (1991) DMC

425 Orissa.
2 Amarendranath Sanyal vs. Krishna Sanyal, I (1993) DMC 565 Cal:
1993(2) CCC 195 Cal (DB).
3 Saroj Rani vs. Sudarshan Kumar Chadha, AIR 1984 SC 1562
4 Radhakumari vs. K.M.K. Nair, AIR 1988 Kerala 235 (DB): (1988) 1
Ker LJ 246: (1988) 1 Ker LT 461: (1988) 24 Reports 162: (1988) 2
DMC 166: (1988) 2 Hindu LR 486.
the rate of Rs. 300/- per month. During the pendency of the present
appeal, the appellate court had directed that the appellant petitioner will
continue to receive alimony pendente lite at the same rate. Ultimately it
was held that she is entitled to receive permanent alimony from the
respondent husband at the same rate and in case, there is any change of
circumstance, either party was granted liberty to apply to the trial Court
for variation, modification or rescinding the order under Section 25 as
the said Court may deem just. 1
Meaning of ‘husband’ and ‘wife’

The provisions of Section 25 of the Hindu Marriage Act which
relate to permanent alimony and maintenance use the expression “either
the wife or the husband as the case may be” and these expression are
used at the stage when the Court is exercising jurisdiction under the Act
and the occasion arises at the time of passing any decree or at any time
subsequent thereto. It would, therefore, follow that the expression
“husband” or “wife” used in Ss. 24 and 25 are used in a descriptive sense
in order to denote a party to the marriage and not necessarily as one who
in the view of the Court at the time of passing of the order is entitled to
the legal character of wife or husband. It is well settled that the cases of
divorce and annulment of marriage have the effect of snapping the
marriage tie. If these words are literally construed, it may lead
necessarily to the confinement of Section 25 to the cases of restitution of
conjugal rights and judicial separation, which could not have been the
intention of the Legislature. 2
Therefore the terms “Wife” and “Husband” in the section 25 of
Hindu Marriage Act, 1955 are merely terms to refer to parties who have
gone through a ceremony of marriage and they do not signify an existing
relationship as spouses. 3
Modification of order
Statutory provision of Section 25 Hindu Marriage Act is no more
than a codification of the existing provisions of the Hindu Law which
1 Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983

Calcutta 161 (DB): (1982) 1 Cal LJ 318: (1982) 86 Cal WN 665:
(1982) 2 DMC 59: 1982 Hindu LR 430: 1982 Mat LR 237.
2 Hemaraj Shamrao Umredkar vs. Leela, AIR 1989 Bombay 146:
(1988) 2 DMC 325: (1988) 2 Cur CC 488: (1988) 2 Hindu LR 583:
(1988) Mat LR 315.
3 Sister Kumar v. Sabita Rani, AIR 1972 Calcutta 4 and Kuldip
Chand v. Geetha , AIR 1977 Delhi 125 followed in Smritikana Bag
vs. Dilip Kumar Bag, I (1982) DMC 146 Calcutta: II (1982) DMC 73
DB.
Alimony—Nullity marriage 29
always conferred power upon the court to alter the amount of

maintenance where circumstances have altered. The point, however, is as
to the procedure to be adopted in making such alteration. Briefly
speaking the law before the introduction of the said Act was that, where
a decree was passed for maintenance and it contained provisions for
making an application to alter the quantum of the maintenance owing to
change of circumstances, then and then only an application could be
made. Otherwise, the court had no jurisdiction to alter the amount of a
decree by means of an application, and it was always necessary to
institute a suit for that purpose. 1
Nullity marriage
Marriage is both a sacrament and a contract for the Hindus. The
resultant relationship is both as also contractual. The grounds mentioned
in Section 5(2) of the Act as invalidating a Hindu Marriage are
incapacity to enter into a contractual relationship because of the minority
or unsoundness of mind or an inherent incapacity to achieve the very
purpose of the marriage, namely procreation, due to lack of capacity to
consummate the marriage. These are considerations which may vitiate a
contract. Invalidation due to any or all these grounds in virtually an
annulment of the contractual relationship. It is only just and proper that a
person who induced another to enter into a contractual relationship
inspite of the existence and awareness of essentially invalidating
circumstances compensates that other as an incidence of the decree of
annulment which he obtains. It may be that because these jural and
contractual relationships are so inter wined in Hindu Marriages the
former also snaps when the latter is annulled. The obligation flowing out
of the jural relationship which the court disrupts by its decree seems to
be sufficient justification for an order to pay maintenance subject to
reasonable restrictive conditions even after the decree of annulment. 2
Section 25(1) of the Hindu Marriage Act enjoins either on the
husband or the wife even after a decree under the Hindu Marriage Act is
passed, to pay maintenance to the order. In the instant case, it is not in
dispute that a decree for annulment of marriage was passed by this Court
MFA No. 387 of 1973 on 20-2-1976. That being so, it is obvious that the
erstwhile wife in the instant case could maintain an application for
maintenance. The different types of decrees that are contemplated under
the Hindu Marriage Act: decree for judicial separation, decree for
1 Menokabala Dasi vs. Panchanan Seal, AIR 1966 Cal 228 (DB): 69
Cal WN 938.
2 Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524
Kerala.
restitution of conjugal rights, decree for annulment of marriage and

decree for divorce. Section states in a general way, “at the time of
passing any decree or at any time subsequent thereto”. Hence is obvious
that the parties to a decree for annulment of marriage also are covered
under Section 25(1) of the Hindu Marriage Act. 1 Hence it was therefore
held that the petition of the wife for maintenance under Section 25(1) is
maintainable. 2
In a case where the husband moves for declaration of nullity of
the marriage, due to his own fault, his epilepsy, his impotency, and his
inability to consummate the marriage, it is all the more reason why the
court shall direct him, as incidental to the dispensation whereby he
obtained what he wanted, to ensure that the person against whom the
court passed a decree at his instance should be maintained by him till she
remarried or till the court otherwise ordered. 3
Provisions of Section 25 are ancillary to the main proceedings
under the Act and must be liberally construed and the limitation upon the
exercise of power are contained in the provision itself and need not be
discovered outside the Act. This is clarified by the provisions contained
in sub-section (3) of Section 25 of the Act, where the circumstance in
which the alimony is likely to be withdrawn are specified. In my opinion,
there is no scope for enlarging the circumstances when alimony may not
be granted and I have no doubt that the benefit of the provision is not to
be denied to the parties who have suffered the misfortune to have their
marriage dissolved by the decree or the court, merely on account of the
passing of the decree, if they are otherwise entitled to the maintenance
and it was certainly not the intention of law that the parties to the
dissolved marriage must suffer further misery or starvation without grant
of alimony. Passing of the decree of annulment of marriage, therefore,
does not debar the court from granting alimony to the parties, who be
otherwise entitled to it. 4
1 Kuldip Chand v. Geetha AIR 1977 Delhi 125, Govindarao v.

Anandabai 79 Bom LR 73: AIR 1976 Bombay 433 and Muniswami
Rajoo v. Hamsa Rani (1974) Madras LJ 273: AIR 1975 Madras 15.
2 Smritikana Bag vs. Dilip Kumar Bag, I (1982) DMC 146 Calcutta: II
(1982) DMC 73 DB.
3 Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524
Kerala.
4 Kuldip Chand Sharma vs. Geeta Sharma, AIR 1977 Delhi 124:
(1976) 78 Pun LR (D) 168: 1976 Rajdhani LR 419: ILR (1976) 1
Delhi 854: (1976) 12 DLT 175: 1977 Mat LR 73: 79 Pun LR (D)
229.
Alimony—Nullity marriage 31
In regard to the rights of a woman whose marriage is void or

declared void under the provisions of the Hindu Marriage Act it has been
held 1:
‘1. Section 25 of the Hindu Marriage Act confers upon a
woman, whose marriage is void or is declared to be void,
a right to maintenance against her husband.
2. The right of maintenance can be enforced by her not only
in proceedings under Section 25 of Hindu Marriage Act
but also in any other proceedings where the validity of her
marriage is determined
3. This right can be enforced by her not only during the life-
time of her husband but also after his death against the
property of her husband after his death
4. Of course, this right of maintenance is available only
during her life time ceases if remarries.’
Even when marriage dissolved by a decree passed that, was a
nullity, the right to claim maintenance under Section 25 of the Act is not
defeated. 2
Another view to the contrary is that section 25 of the Hindu
Marriage Act, 1955, permits grant of permanent alimony to either the
wife or husband. Thus, to get the alimony for maintenance under Section
25 of the Hindu Marriage Act, 1955, it is necessary that the parties were
husband and wife. When there is a declaration given under Section 11 of
the Hindu Marriage Act, 1955, by the court that the marriage between the
parties was null and void it has effect of saying that there was no
marriage at all. That being so, there was no relationship between the
husband and wife at any time. Under the circumstances Section 25 of the
Hindu Marriage Act, 1955, has no application and the court has no
jurisdiction to grant of maintenance exercising the powers under Section
25 of the Hindu Marriage Act, 1955. 3
Similarly it has been held that the declaration of nullity of
marriage has the effect that the marriage does not exist. Prayer for
1 Shantaram Tukaram Patil vs. Dagubai Tukaram, 1987 (2) AIHLR

343
2 Devinder Singh vs. Jaspal Kaur, 1999(3) CCC 531 (P&H).
3 Bhaiyalal vs. Phoolwati Bai, 1993(3) CCC 10 (MP).
alimony after such decree is not permissible which can only be granted
where marriage is dissolved by decree of divorce or judicial separation. 1
A some what middle course has been adopted in a recent case.
According to this case section 25 of Hindu Marriage Act, 1955 confers a
statutory right on the wife and the husband and confers jurisdiction on
the Court to pass an order of maintenance and alimony in proceedings
under Section 9 to 14 of the Hindu Marriage Act. At any time before or
after the decree is passed in such a proceeding, therefore, the wife or
husband could make such a claim and the conditions of Section 25(1)
will have to be satisfied. There must be a matrimonial petition filed
under the Hindu Marriage Act, then, on such a petition, a decree must be
passed by the Court concerning the material status of the wife or
husband. It is only when such a decree is passed that the right accrues to
the wife or the husband and confers jurisdiction on the Court to grant
alimony. Till then, such a right does not take place. Not only that the
Court retains the jurisdiction even subsequent to passing of such a decree
to grant permanent alimony when moved by an application in that behalf
by a party entitled to, the Court further retains the power to change or
alter the order in view of the changed circumstances. Thus, the whole
exercise is within the gamut of a broken marriage. Thus, the Legislature
while codifying the Hindu Marriage Act, reserved the right of permanent
maintenance in favour of the husband or the wife as the case may be
depending on the Court passing of the kind as envisaged under Section
14 of the Act. Thus, Section 25 should not be construed in such a manner
as to hold that notwithstanding the nullity of the marriage, the wife
retains her status for purposes of applying for alimony and maintenance.
In our view, the proper construction of Section 25 would be that where a
marriage admittedly is a nullity, this section will have no application.
But, where the question of nullity is in issue and in contentious, the
Court has to proceed on the assumption until the contrary is proved, that
the applicant is the wife. 2
Offer of re-union
The wife could show that although she did not comply with the
decree for restitution of conjugal rights she could provide some cause to
live away from the husband by supporting the same by evidence. But she
did not raise any plea whatsoever as to why she is willing to live away
from her husband. In execution proceedings her stand was that she had
danger to her life. In those proceedings, she led no evidence on that
1 Lydia Renuka vs. K. Soloman Raju, 1995 (2) DMC 619 AP: 1996(1)
CCC 311 (AP).
2 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP.
Alimony—Pregnant wife 33
aspect of the matter and if on perusal of that evidence it could be

concluded that there was really some apprehension to her from the side
of the husband of her-in-law, probably, she would have had a good case
but when no evidence having been brought on record, the fact remains
that as a wife, she wants to live away whereas the dicta of law is that she
must go with her husband. In such case of divorce the tie of marriage
ceases to exist between the parties and after divorce, the former husband
cannot say that he is prepared to keep his former wife in his house and
will provide her all necessities of life. After divorce she has to live away
and for that she becomes entitled to maintenance in law except in few
cases like re-marriage, on becoming unchaste or for certain allied
matters. But in the present case the tie of husband and wife still
continues in spite of grant of decree for restitution of conjugal rights and
for that reason the husband is very much right is saying that she should
come and live with him so that he can provide her with all necessities of
life. If in spite of being wife she does not want come and live with the
husband, she is not entitled to claim permanent alimony. 1
Powers of Appellate Court

Court in an appeal in granting the decree for restitution of
conjugal rights has exercised jurisdiction under the Hindu Marriage Act
within the meaning of Section 25 thereof, then the other relevant
provisions of Section 25 would leave no room for doubt that the
appellate Court can entertain the application under that Section for the
grant for permanent alimony. The Section having clearly authorised the
Court to order payment of alimony “at the time of passing any decree”
and “on an application made to it”, unmistakably indicates that it is the
Court, original or appellate, which has granted the decree, that would be
entitled to order grant of alimony under Section 25 of Hindu Marriage
Act, 1955. 2
It is also clear from Section 107 of the Code of Civil Procedure
as well as the language used in Section 25 of the Hindu Marriage Act,
1955, the Appellate Court, has same powers as are conferred on the
original Court. 3
Pregnant wife
In case, the marriage has been dissolved under Section 13(1) (ia)
of the Hindu Marriage Act, 1955 on the ground that the wife was living
1 Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H.

2 Smyamali Sarkar vs. Ashim Kumar Sarkar, I (1989) DMC 40 Cal.
3 D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB):
AIR 2001 Mad 147 DB.
in adultery or was leading an immoral life, her application for permanent

alimony may be dismissed on the ground that even after the decree of
divorce she continues to lead such a life. Where, however, the evidence
is, like in the present case, that she had conceived during the period of
desertion and delivered a child, her application for permanent alimony
cannot be thrown out on that ground alone. It is well settled that illicit
conception by itself is not “living in adultery”. It would, however, be
open to a husband whose marriage has been dissolved on the ground that
wife has deserted him to prove while contesting that application that the
wife lives in adultery. 1
Procedure
Under Section 36 of Divorce Act, wife alone has the right to file
an application. Principle of natural justice has been reflected in the
section itself which requires the copy of the application to be served on
the husband. Trial Court is required to consider the truth of the
statements made in the application and thereafter, on its findings shall
make such order on the husband as it may deem just for payment of
alimony to the wife, pending disposal of the suit. In the proviso clear
restriction has been made that such pendente lite alimony shall not
exceed one-fifth of the husband’s average net income for the three years
next preceding the date of the order. Thus, the Court considering such
application is to determine the net income for three years and on the
facts and circumstances of each case shall determine the quantum of
alimony which shall not exceed one-fifth of the average thereof. 2
Quantum
In order to grant permanent alimony to a divorced wife, the
factors such as status of the parties, their sources of income, and
properties, if any, held by them, their employment etc., are to be taken
into consideration. 3
Taking all these factors into consideration, it was held that
instead of directing the respondent to pay monthly to pay monthly
maintenance to the appellant, the respondent could be directed to pay a
lump sum amount towards permanent alimony to the appellant which
could be just and reasonable for her maintenance. The facts of this case
were that the wife was practising as qualified Post-graduate doctor in
1 Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5:
1982 Rajdhani LR 622.
2 Jayanti Menjet vs. Asit Kumar Mohanty, AIR 1988 Orissa 195:
(1988) 1 Orissa LR 277: (1988) 1 Cur CC 702: 1988 Mat LR 301
3 Lokeshwari vs. Srinivasa Rao, II (2000) DMC 351 AP.
Alimony—Quantum 35
Gynaecology and as such she was capable of earning substantial income

through her profession. Whereas the respondent who was also a doctor
by profession settled down in London, had to maintain his first daughter
born through the appellant, his second wife and a son born through his
second wife. In these circumstances it was held that, an amount of
Rs. 5.00 lakhs (five lakhs only) could be awarded as permanent alimony
to the appellant. While determining the above amount of permanent
alimony, the amount of Rs. 3,31,500/- already paid by the respondent to
the appellant during the pendency of these appeals was also taken into
consideration and it was directed that the respondent to pay an amount of
Rs. 5.00 lakhs to the appellant through Demand Draft drawn in her
favour within a period of three months from the date of the order in
addition to said amount already paid. It was also held that pending
payment of the permanent alimony of Rs. 5.00 lakhs by the respondent,
the respondent shall pay the maintenance at the rate of Rs. 5,000/- to the
appellant per month which shall be paid on or before 5 th of every months
from the month of January, 2000 onwards. The respondent husband was
also directed to pay an amount of Rs. 5,000/- to the appellant towards her
legal expenses which shall also be paid by him within a period of three
months from to-day, apart from the above amounts. 1
Where the last drawn gross salary of the husband prior to his
suspension was Rs. 6,780/- per month and he was aged 45 years and the
wife was aged about 37 years, it was held that though the wife had
claimed an amount of Rs. 3,00,000/- as permanent alimony, the husband
could only be directed to pay an amount of Rs. 1,50,000/- towards
permanent alimony to the wife. 2
One case had a special feature of its own inasmuch the alimony
pendente lite was not for the wife alone but also for the young male child
who had just started going to school. Even though 1/5 th is the rule
ordinarily laid down for one head the is that wife who is living separate
from the husband, if we calculate for two heads we cannot fix 1/5 th to be
the ultimate ceiling. The legislature in its discretion has not fixed any
guideline in this regard as in the case of Indian Divorce Act or the Paris
Marriage and Divorce Act and here court is always to be guided by the
wide discretion vested by the statute on the Court itself. Therefore the
alimony pendente lite was increased to a sum of Rs. 1,200/- per month,
Rs. 700/- for the wife and Rs. 500/- for the minor child which would be
effective from the date of the application in the Court below. 3
1 Lokeshwari vs. Srinivasa Rao ibid

2 S. Vijayalakshmi vs. Bheem Reddy, 1998(2) CCC 399 (AP).
3 Rina Sen vs. Aloke Kumar Sen, II (1994) DMC 525 Calcutta.
Where the parties had agreed that a total consideration of

Rs. 1,80,000/- would be paid to the minor daughter and the wife in
settlement of all their claims with regard to maintenance, permanent
alimony and Istridhan as well as in relation to the property, if any,
owned and possessed by the husband and his family members. Out of this
amount of Rs. 1,80,000/-, Rs. 50,000/- had been paid in cash and for the
remaining amount of Rs. 1,30,000/- a post dated cheque was handed over
and the husband had given an undertaking to the Court, which had been
accepted by the wife, that the cheque would be positively honoured on
presentation. It was held that all the cases filed by the parties against
each other would be dismissed as withdrawn and/or pursued. 1
While allowing the appellant’s prayer for granting alimony
pendente lite, the Court below found that she did not earn any income
and did not own and property and, therefore, directed payment to her at
the rate of Rs. 300/- per month. During the pendency of the present
appeal, the appellate court had directed that the appellant petitioner will
continue to receive alimony pendente lite at the same rate. Ultimately it
was held that she is entitled to receive permanent alimony from the
respondent husband at the same rate and in case, there is any change of
circumstance, either party was granted liberty to apply to the trial Court
for variation, modification or rescinding the order under Section 25 as
the said Court may deem just. Therefore the order under Section 25 shall
be deemed to have been made by the trial Court. 2
Remarriage
The language of the section 25 of Hindu Marriage Act, 1955 is
clumsy, though the clear intendment of the section is that any court
exercising jurisdiction under the Hindu Marriage Act shall have the
power to award maintenance in any proceeding, be it one for judicial
separation or for restitution of conjugal rights or for dissolution of
marriage by divorce or for annulment of marriage by a decree of nullity.
This view is fortified both by the heading of the section and the language
of the principal clause in the section. The heading in Section 25 runs as
follows: ‘Permanent alimony and maintenance’. The heading suggests
that it applies to all cases coming under the Hindu Marriage Act and not
1 Balwinder Singh vs. Raj Rani, I (2001) DMC 427 P&H.

2 Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983
Calcutta 161 (DB): (1982) 1 Cal LJ 318: (1982) 86 Cal WN 665:
(1982) 2 DMC 59: 1982 Hindu LR 430: 1982 Mat LR 237.
Alimony—Right after passing of decree 37
necessarily and exclusively to cases where the marital tie has been
dissolved by an order of court. 1
In fact, the main clause in the section — ‘any court exercising
jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto ………………shall………….pay to the
applicant for her or his maintenance’ etc. — indicates the Legislature
intent to confer upon any court exercising jurisdiction under the Hindu
Marriage Act, the power to award maintenance in any proceeding under
the Act. But unfortunately, later on, in a subordinate clause, the
Legislature uses the words “while the applicant remains unmarried”. This
expression is not intended to cut down or curtail the scope of Section 25.
Nor can it be construed as applying only to a case of a dissolution of
marriage or an annulment of marriage. 2
It, is therefore, wrong to whittle down the scope of Section 25 of
Hindu Marriage Act, 1955 by invoking the clumsy phrase ‘while the
applicant remains unmarried’, a phrase, which has been inadvertently
used by an unimaginative draftsman. The phrase ‘while the applicant
remains unmarried’ was evidently intended to do duty for the expression
‘while the applicant remains without incurring any legal disability
justifying the rescission of the allowance awarded under the decree’. It is
the duty of the court to put a construction upon the section, which does
not attribute absurdity to the legislature and which would advance the
remedy and suppress the mischief. 3
Resumption of cohabitation
The principle is whether there has been resumption of
cohabitation so as to demolish the effect of the decree. Whether there has
been resumption of the cohabitation or not does not depend upon the
duration of the stay. It rather depends on the animus of the parties and
their mental attitude in coming to gather again. When cohabitation is
resumed, there is a waiver on the part of the wife of the cause of action
on which the suit and the decree were founded. Whatever might be the
ground on which the decree has been obtained, the same result follows, if
subsequent to the decree there is a resumption of cohabitation. 4
1 A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87
Mad LW 537: (1974) 2 Mad LJ 237.
2 A.R. Munuswamy Rajoo vs. Hamsa Rani ibid
3 A.R. Munuswamy Rajoo vs. Hamsa Rani ibid.
4 Bussa Ansuya vs. Bussa Rajaiah, AIR 1971 AP 296: (1971) 1 Andh
WR 191.
Right after passing of decree

When the language of sub-section (3) of Section 25 is taken along
with the provisions of sub-section (1) of the same section, there can be
no manner of argument that in Section 25 the statute has used the
description of the parties as husband or wife to proceedings under the
Act not only confined to a stage before or by the time of passing of a
decree under the Act, but for the purposes of the grant of permanent
alimony even after that. When there is an order granting permanent
alimony to one of the spouse under sub-section (1), for his or her
conduct referred to in sub-section (3) as husband or wife, as the case
may be, the order can be rescinded. So that the description of the parties
for the matter of Section 25 continues to be exactly the same as it was in
the proceeding originally initiated under the provisions of the Act for
any decree under those provisions. The fact that proceedings for the
grant of permanent alimony are incidental to the main proceedings,
merely lends support to this approach, which is even otherwise made
clear, beyond the pail of controversy or argument, by sub-section (3) of
Stage of granting alimony

Section 25 of the Hindu Marriage Act, 1955, empowers the Court
to pass a decree for permanent alimony, while passing decree for
divorce. The section, in turn requires an application to be made for this
purpose. The application can be made either at the time of passing the
decree of even thereafter. The decision on the question of alimony will
have to take into consideration the earning of the husband, conduct of the
parties and other facts and circumstances of the case. This cannot be
done, unless both the parties are given opportunity to place material facts
before the Court. Inspite of eagerness and willingness of the appellate
court to grant some amount to the wife, as permanent alimony, it is not
possible to fix the same in the absence of any material on record. But
liberty was granted the appellant to file an application before the trial
Court under Section 25 of the Act; and get an order for permanent
alimony as provided in law. 2
Section 25 of the Hindu Marriage Act, 1955 very clearly states
that any Court exercising jurisdiction under the Act, may at the time of
passing any decree or at the time subsequent thereto, order that the
husband shall pay to the wife maintenance. This clearly shows that an
application u/s 25(1) of the Act can be made and decided at the time of
1 Durga Das vs. Tara Rani, AIR 1971 P&H 141 (FB): 70 Pun LR 923:
ILR (1970) 2 Punj 551.
2 Meerabai vs. Laxminarayan Mishra, I (1984) DMC 120 MP.
Alimony—Territorial Jurisdiction 39
passing of decree or at any time subsequent thereto. There is nothing in

the aforesaid decision which takes away the right of wife to permanent
alimony or maintenance to apply for it subsequent to passing of the
decree. Therefore, a decree of divorce is not vitiated for non-
consideration of grant of permanent alimony. 1
Subsisting marriage
Permanent alimony and maintenance under Section 25 of Hindu
Marriage Act, 1955, can only by granted in case divorce is granted and
not if the marriage subsists. The word ‘decree’ is used in matrimonial
cases in a special sense different from that in which it is used in Civil
Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means
the passing of the decree of divorce, restitution of conjugal rights, or
judicial separation and not the passing of a decree dismissing the
petition. If the petition fails then no decree is passed, i.e., the decree is
denied to the applicant. Alimony, cannot therefore, be granted in a case
where a decree for divorce or other decree is refused because in such a
case the marriage subsists. 2
Territorial Jurisdiction
Referring to the phraseology of Section 25, stress was laid on the
words “on application made to it for the purpose”. From these words it
was sought to be inferred that ‘it’ is the Court, which passed the decree,
and that court alone is entitled to entertain such application. It was held
that ‘if this interpretation were to be placed on these words, it will lead
to anomalous results as would be clear from the following example.
Suppose, a divorce petition is dismissed by the first Court and the
dismissal is confirmed by the High Court and the matter goes to the
Supreme Court and the Supreme Court grants a decree of divorce. The
interpretation sought to be placed on Section 25 of the Act and on the
word ‘it’, would mean that a petition for grant of permanent alimony
under Section 25 of the Act will have to be filed before the Supreme
Court. Similarly, if the divorce petition was declined by the first Court,
but was granted by this Court, the application for the grant of permanent
alimony will lie to this Court. This is not the scope of either Section 25
or conveyed by Section 19 of the Act. Moreover, the opening part of
Section 25 shows that the proceedings may be taken before ‘any’ Court
exercising jurisdiction under this Act and the jurisdiction under this Act
is exercised in view of Section 19 of the Act on matters arising under the
1 Ramadevi vs. Ashok Kumar Mohanlal Vyas, 1994 (1) DMC 286
(DB) MP.
2 Ranganatham vs. Shyamala, AIR 1990 Mad 1.
Act. Therefore, the reasonable interpretation to be placed, would be that

Section 25 or for the matter any other section, should be read subject to
Section 19 so far as the jurisdiction of the Court is concerned unless
there is a specific provision to the contrary in any particular section.
Therefore, on a plain reading of Section 19 and reading it harmoniously
with Section 25 of the Act, the only conclusion to be drawn would be
that even if a petition for divorce, or any other decree, is granted by one
of the Courts having jurisdiction under Section 19 of the Act, it may give
cause to the opposite party to move for the grant of permanent alimony
or any other relief under Section 26 or 27 of the Act, again the
jurisdiction will be governed by Section 19 of the Act and not merely by
the passing of a decree by a particular Court.’ 1
Withdrawal of petition
In a proceeding filed under the Act for divorce judicial separation
or restitution of conjugal rights, the respondent in addition to opposing
the claim made by the petitioners is entitled to make a counter claim for
any relief under the Act on the ground of petitioner’s adultery, cruelty or
desertion. Now the relief claimed by the respondent wife is permanent
alimony for herself and for the minor child. This claim falls under
Section 25 of the Act.
Section 23-A of the Act, clearly provides that in a proceeding for
divorce, judicial separation or restitution of conjugal rights, the
respondent can make a counter claim for any relief under the Act on the
ground of the petitioner’s adultery, cruelty or desertion. The contention
raised in the application is that the petitioner husband has treated her
with cruelty. Therefore the claim satisfies the requirements of Section
23-A of the Act. That being so, when there is a counter claim and that
counter claim falls within the scope of Section 23-A read with Section 25
of the Act, in such a situation, if the petitioner is allowed to withdraw
the main petition it will seriously affect the counter claim made by the
respondent because the counter-claim can be entertained only when there
is a proceeding for divorce or judicial separation or restitution of
conjugal rights. 2
Written Application
Section 25 of the Act contemplates an application for the said
purpose. When the lower Court has not disposed of Section 24
application in time and has disposed of along with the main application,
it should have disposed of the application under Section 25 also.
1 Darshan Kaur vs. Malook Singh, II (1983) DMC 302 P&H.

2 C. Sannath vs. Padma, II (1982) DMC 121 Karnataka.
Alimony—Young wife 41
Therefore, one more litigation could be avoided and on the basis of very
same order, the maintenance could be provided for the wife and child.
From the conduct of the respondent, it is clear that he will not pay the
maintenance which is legally due to the petitioner. Under these
circumstances, asking the petitioner to file another application under
Section 25 or asking to file a separate suit and again seeking indulgence
of the Court below will be harsh. The Act does not say that there should
be a written application. It only says that an application made to it. It can
also be on the basis of oral application. 1
Section 25 of Hindu Marriage Act, 1955 when it speaks of an
application does not specify that the same has to be in writing. An
application can be in writing as also by word of mouth. The fact that the
trial Court passed an order for alimony would imply that an oral
application had been made to it. 2
Section 25 of the Hindu Marriage Act, 1955 gives inherent
jurisdiction to the Court to grant permanent alimony to either spouse, at
the time of passing any decree or at any time subsequent thereto,
directing the respondent to pay to the applicant for her maintenance such
amount as may appear to the Court to be just. Therefore even when no
written application has been filed on behalf of the appellant for seeking
an order of permanent alimony, yet the court can pass an order in respect
thereof on the oral application of the appellant’s learned counsel. 3
Young wife
If the wife is young it does not mean that she should not be
awarded permanent alimony. Only on remarriage she will forfeit her
right. It is general principle of the matrimonial legislation that, if a
former spouse remarries, she (or he) must look to her new partner for
financial provision for herself, and not to the old one. The court cannot
suggest to the wife that she should remarry and that she will not be
awarded maintenance because she is very young. The law now
encourages spouses to avoid bitterness after family break-down and to
settle their money and property problems. 4
The primary consideration under Section 25 of Hindu Marriage
Act, 1955 is to see whether the wife has anything for her support and
1 Umarani vs. D. Vivekannandan, II (2000) DMC 422 Madras.

(1989) 1 Hindu LR 708.
3 Indu Kumari Pathak vs. S.K. Pathak, II (1983) DMC 64 Raj.
4 Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi.
maintenance. If not, she is entitled to a lump sum or a periodical

payment. The consideration which the Court will keep in view are
specified in the section. The court has to have regard to the respondent’s
income and property, the income and property of the applicant, the
conduct of the parties and other circumstances of the case. The sum to be
rewarded to the applicant must be fair and reasonable. It has to be just in
all the circumstances of the case having regard to the income of the
parties, their means etc. 1
1 Sheela vs. Tungal Singh ibid.

Maintenance pendente lite—Young wife 43
Chapter 2
Maintenance pendente lite
SYNOPSIS
Introduction......................................44 Duty of husband............................... 80
Object ...............................................46 Effect of interim maintenance.......... 81
Allegation of adultery ......................49 Effect of non payment on appeal ..... 81
Alternative forums............................50 Effect of operation of Hindu Adoptions
Appeal ..............................................51 & Maintenance Act .......................... 82
Appeal under Family Court Act .......51 Enforcement of order....................... 82
Award to children ............................52 Enhancement of amount of
Burden of proof ................................53 maintenance..................................... 84
Challenge in Appeal.........................54 Entitlement of children .................... 84
Challenge in revision .......................56 Filing of written statement............... 85
Civil Procedure Code is applicable .56 Form of order .................................. 86
Comparison between Hindu Adoptions Forum of appeal .............................. 86
& Maintenance Act & Hindu Marriage Grant in Revision............................. 87
Act, 1955 ..........................................57 Independent income of wife ............. 87
Compliance of order ........................57 Jurisdiction of Family Court ........... 88
Computation.....................................58 Jurisdictional issue .......................... 89
Conclusion of proceedings ...............59 Justification for living separately .... 89
Conditions for granting Letters patent appeal ....................... 89
maintenance .....................................60 Litigation Expenses ......................... 90
Conduct of parties ............................61 Meaning of “Maintenance” ............ 90
Consent order...................................62 Meaning of support ......................... 90
Considerations for granting Modification of order ...................... 90
maintenance .....................................62 Multiple remedies ............................ 91
Date from which amount granted ....65 Necessity of affidavit ....................... 92
Delay in disposal..............................68 Necessity of reconciliation .............. 92
Denial of marriage...........................69 Necessity to grant maintenance ....... 93
Determination of amount .................70 Non working husband ...................... 93
Discretion of Court ..........................71 Non-compliance............................... 93
Dismissal of main petition ...............73 Object of Hindu Adoptions &
Disputed marriage ...........................76 Maintenance Act .............................. 94
Distinction with alimony ..................77 Order under Criminal Procedure Code,
Distinction with Section 125 Criminal 1973 ................................................. 94
Procedure Code ...............................78 Pendency of proceedings ................. 94
Duration of payment ........................78 Postponement of Application ........... 96
Power of Appellate Court ................97 Scheme under Hindu Marriage

Power of Court...............................100 Act, 1955........................................ 112
Procedure for disposal of application Scope of enquiry ............................ 115
.......................................................101 Scope of entitlement....................... 116
Proceeding for restitution of conjugal Scope of expenses .......................... 117
rights ..............................................102 Scope of Liability ........................... 117
Procedure of enquiry .....................102 Second Appeal ............................... 118
Proof of marriage ..........................103 Second marriage............................ 118
Quantum of interim maintenance...104 Striking off defence ........................ 119
Quick disposal................................108 Enforcement of order..................... 120
Reasonable amount ........................108 Unchastity...................................... 120
Reduction and enhancement of amount Urgency ......................................... 121
.......................................................108 Waiver ........................................... 121
Refusal of maintenance to pressurise Withdrawal of application ............. 122
.......................................................109 Withdrawal of main petition .......... 122
Resjudicata.....................................109 Working wife.................................. 123
Retrospective effect ........................109 Written statement ........................... 124
Right of Children............................109
Introduction
There are various provisions of different statutes dealing with
personal laws which deal with the question of maintenance pendente lite.
These statutes are Hindu Marriage Act, 1955, Special Marriage Act,
Parsi Marriage Act, 1936 and Indian Divorce Act. The relevant
provisions of these statutes are extracted hereafter.
Section 24 of Hindu Marriage Act, 1955 is as under:
Maintenance pendente lite and expenses of proceedings.— Where
in any proceeding under this Act it appears to the Court that
either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application
of the wife or the husband, order the respondent to pay to the
petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner’s own
income and the income of the respondent, it may seem to the
Court to be reasonable.
Section 39 of Parsi Marriage & Divorce Act, 1936 is as under:

Alimony pendente lite.— Where in any suit under this Act, it
appears to the Court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or his
support and the necessary expenses of the suit, it may, on the
application of the wife or the husband, order the defendant to pay
Maintenance pendente lite—Introduction 45
to the plaintiff, the expenses of the suit, and such weekly or

monthly sum, during the suit, as, having regard to the plaintiffs
own income and the income of the defendant, it may seem to the
court to be reasonable.
Section 36 of Indian Divorce Act, 1869 is as under:

Alimony pendente lite.— In any suit under this Act, whether it be
instituted by a husband or a wife, and whether or not she has
obtained an order of protection the wife may present for alimony
pending the suit.
Such petition shall be served on the husband; and the Court, on
being satisfied of the truth of the statements therein contained,
may make such order on the husband for payment to the wife of
alimony pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed
one-fifth of the husband’s average net income for the three years
next preceding the date of the order, and shall continue, in case of
a decree for dissolution of marriage or of nullity of marriage,
until the decree is made absolute or is confirmed, as the case may
be.
Section 36 of Special Marriage Act, 1954 is as under:

Alimony pendente lite.— Where in any proceeding under Chapter
V or Chapter VI it appears to the District Court that the wife has
no independent income sufficient for her support and the
necessary expenses of proceeding, it may, on the application of
the wife, order the husband to pay to her the expenses of the
proceeding, and weekly, or monthly during the proceeding such
sum as having regard to the husband’s income, it may seem to the
Court to be reasonable.
The right of a wife for maintenance is an incident of the status or

estate of matrimony. In general, therefore, the husband is bound to
defray the wife’s costs of any proceeding under the Act and to provide
for her maintenance and support pending the disposal of such
proceeding. The doctrine of alimony, which expression in this strict
sense means allowance due to wife from husband or separation from
certain causes, he its basis in social conditions in England under which a
married woman was economically dependent and almost in a position of
tutelage to the husband and was intended to secure justice to her while
prosecuting or defending proceedings under matrimonial law. In view of
Section 24 of the Hindu Marriage Act and the decision rendered above
that the law relating to matrimonial causes provides for rules for
payment of maintenance pendente lite and express of proceeding by the
husband to the wife. Section 24 of the Hindu Marriage Maintenance Act
adopts those principles and goes radical step further when it prescribes
that any such order can be made not only in favour of the wife but also in
favour of the husband. 1
The right of a wife is general for maintenance is an incidences of
the status of matrimony. The husband in general is under an obligation to
defray the wife’s cost to any proceedings and to provide her with
maintenance and support during the pending legal proceedings under
Hindu Marriage Act. Alimony strictly speaking is a maintenance
allowance given to a wife by husband on separation. It is well recognised
in civilised society that a wife having no independent means of
subsistence and maintenance is entitled to alimony pending matrimonial
proceedings and costs thereof. It is this principle which has been
incorporated in Section 24 of the Hindu Marriage Act. As a matter of
fact the section goes beyond the classical concept of the doctrine of
alimony inasmuch as it recognises the right even of a husband who has
no sufficient means for his support to claim alimony pending the
proceedings from a wife having means. 2
Object
The object of this Section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. 3
Very purpose of grant of interim alimony the amount of costs
under Section 24 of the Act is to see that the party who is helpless and
unable to maintain oneself during pendency of the proceedings and who
has no sufficient means for fighting the litigation, is, awarded interim
alimony. Thus this provisions of Section 24 of the Act go to show the
objection is to see that the litigation initiated by the other side could
properly be defended and interim maintenance could be given it’s the
applicant. Having once found by the trial court that the party is entitled
to such fund of alimony and not paid by the party against whom the order
is passed, has no other remedy for recovery of such amount or other
remedy and if the proceedings are not stayed as requested by the party in
whose favour the order is passed and which is not complied by other
party, the very object of Section 24 may be frustrated. The object of
Section 24 is no provide necessary funds to the needy spouse to
1 Jyotiben Samir Pawar vs. Samir Bhaskarrao Pawar, II (2001) DMC

84 Gujarat: AIR 2001 Gujarat 165.
2 Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174.
3 Jagmohan Verma vs. Sunita Verma, I (1983) DMC 176 Delhi.
Maintenance pendente lite—Object 47
prosecute the proceedings as well as to maintain himself or herself

during pendency of the proceedings. The application preferred by the
wife to stay the proceedings initiated by the husband, for non-compliance
of the order of the court, is rejected without proper examination and
appreciation of the facts and Section 24 by trial court is passing the
impugned order. There fore, impugned order has resulted into
miscarriage of justice. 1
The amount made out under section 24 of the Hindu Marriage Act
is reasonable amount to meet the expenses to the Court proceedings and
also of the maintenance regarding food, lodging, travelling expenses and
other necessary expenses during the period of litigation. This is not mere
maintenance allowance as is to be paid under any provision of the Hindu
Adoptions & Maintenance Act, 1956 or under Section 125 of the Code of
Criminal Procedure. Under Section 24 of the Hindu Marriage Act the
allowance which is to be allowed must be reasonable besides the
maintenance, also to meet expenses of the Court proceedings. Therefore,
in these circumstances, this has no relation to the mere maintenance of
the child or the lady. 2
An order under Section 24, Hindu Marriage Act for maintenance
pendente lite and expense of the proceeding in a matrimonial proceeding
is obviously passed to provide the weaker spouse with such fund as may
be reasonably necessary for her or his support and for the carriage of the
litigation and such an order automatically comes to an end with the
termination of the main proceeding in the Court which passed the order.
The proceeding being rather summary in nature, the object of the order.
The proceeding being rather summary in nature, the object of the order
being ad hoc and duration of the order being temporary the approach of
the Court to an order should be ut res magis valeat guam pereat, to
sustain it wherever possible and not to interfere unless intervention is
irresistible in law. 3
Whatever previously might have been the right of the wife to
claim maintenance as an incident of the status of matrimony on the
establishment of the relationship of wife and husband, now, under
Section 18 (1) of the Hindu Adoptions & Maintenance Act, which came
into operation on 21.12.1956, a Hindu wife, whether married before or
after the commencement of that Act, shall be entitled to be maintained by
1 Shivilaben vs. Prahladbhai, 1995(3) CCC 466 Gujarat.

2 Sangeeta Sexena vs. Gyanendra Saxena, II (1995) DMC 78 MP:
1996(3) CCC 178 (MP).
3 Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC
276 Calcutta.
her husband during her lifetime. Section 18 (2) of that Act enumerates
the circumstances, under which, a Hindu wife is entitled to live
separately from her husband, without forfeiting her claim to
maintenance. Thus, the right of the wife to claim maintenance from the
husband, even in those cases falling under Section 18 (2) of the Hindu
Adoptions and Maintenance Act, when she is obliged to live separately
from her husband, is a statutory one. The method and manner of
enforcing this right, would necessarily depend upon the circumstances
obtaining in any particular case. It may be that in a given case, the wife
may resort to proceedings under Section 125. Cr.P.C. in the hope and
with the expectation that she would get quicker and speedier relief in
those proceedings. Equally, it may well be that a wife may resort to
proceedings before a Civil Court for the enforcement of such right.
Those, however, may at best be characterized as the adoption of different
methods for the enforcement of the right to maintenance. It is necessary
in this connection to remember that the right conferred under Section 24
of Hindu Marriage Act, is in the nature of a special right, arising on
initiation and during the pendency of the proceedings by one or the other
of the parties to the marriage, under the provisions of that Act. Under
Section 24 of the Hindu Marriage Act, the pendency of proceedings
under that Act, is an essential condition for the exercise of the right
either by the wife or the husband, as the case may be seek an order for
payment of the expenses of the proceeding and a monthly sum sufficient
for his or her support. It is thus clear that the right to claim maintenance
or litigation expenses under Section 24 of Hindu Marriage Act, is not
made available generally to the parties to a marriage, but only when a
proceeding between the spouses is pending under that Act, and in that
respect, the right conferred under Section 24 of that Act, is in the nature
of a special statutory right not in any manner outside the provisions
Section 24 of Hindu Marriage Act. The purpose behind Section 24 of
Hindu Marriage Act is that parties to a matrimonial cause should not take
undue and unfair advantage of a superior financial capacity to defeat the
rightful claims of a weaker party and the proceedings under Section 24
of that Act serve a limited purpose, i.e., during the pendency of
proceedings under that Act, to enable the weaker party to establish rights
without being in any manner hindered by lack of financial support. If the
special nature of the statutory right under Section 24 of that Act and its
purpose and borne in mind, it is at once clear that the enforcement of that
right, cannot in any manner be hedged in by a consideration of
proceedings otherwise initiated, either under Section 125, Cr.P.C. or
under the ordinary law. 1
1 Vanaja vs. Gopu, I (1992) DMC 347 Mad.

Maintenance pendente lite—Allegation of adultery 49
Section 24, Hindu Marriage Act deals with maintenance pending

in proceedings under this Act and expenses as such proceeding. This
section enables the court on the application of either spouse to order that
the expenses of the proceeding be paid to the applicant and likewise a
monthly sum during the proceeding, having regard to the applicant’s own
income and the income of the respondent. The object is to ensure that a
party to a proceeding does not suffer during the pendency of the
proceedings by reason of poverty and such party may be either the
petitioner or the respondent in the petition in which the application is
made. The grant of maintenance pendente lite and expenses under
Section 24 is discretionary with the court though such discretion has to
be judicially exercised. The guiding principle would appear to be that if
the applicant has no independent means he or she is entitled to
maintenance and expenses, unless good cause to shown to deprive the
applicant of it. The order exhausts itself with the conclusion of the main
proceedings including the appeal filed if any. 1
Allegation of adultery
There is nothing in Section 24 to prevent a Court from taking into
consideration the conduct of the parties. But that is too spacious a
contention since at least in the original proceedings if this point is
conceded, it would require the Court to judge the merits of the rival
contentions of the parties when deciding an application for interim
alimony and if such an exercise is permitted the Court’s discretion would
be fettered merely by the nature of the allegations made in the petition
and would be compelled to examine the merits of the same at least prima
facie. 2
Simply because a suit for divorce is filed on the allegations of
adultery the wife will not be deprived off her right to get maintenance
pendente lite and expenses of proceeding to defend herself. It is true that
it suit for divorce is decreed after trial on the ground of adultery then
wife will not be entitled to get permanent alimony and maintenance
under Section 25 of the Hindu Marriage Act because adultery alleged
against her is proved. But at the stage of the proceeding under Section 24
of the Hindu Marriage Act, 1955 adultery is only alleged. There is large
1 Shrichand vs. IV Additional Dist Judge, Allahabad, Santosh

Kumari, I (1986) DMC 91 All: Narendra Kumar Mehta vs. Suraj
Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ
(HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387: Ivan vs.
Zena Eramus, I (1982) DMC 295 All: AIR 1982 All 194: 1982 All
WC 163: 1982 (8) All LR 142: 1982 All CJ 193: 1982 Mat LR 174.
2 Dwarkadas Gurumukhdas Agrawal vs. Bhanuben, I (1987) DMC
46 Gujarat.
gap between “adultery alleged” at the stage of proceeding under Section

24 of the aforesaid Act and “adultery found to be proved by Court trial”
at the stage of proceeding under Section 25 of the said. Act. 1
The opening words of Section 24 invests a spouse lacking
sufficient means for his or her support to claim maintenance pendente
lite and the costs and expenses of the proceedings under the Act which
includes, inter alia, for divorce or nullity of void or voidable marriage.
On the plain regarding of Section 24, alimony is a concomitant of a
marriage in fact. On an admission or proof of a factum of marriage,
alimony is a right of either of the spouses lacking means of his or her
support. It would be no answer to such claim that the marriage is void or
voidable. It would be imprudent on the part of the Court to ignore the
principle that a de facto marriage necessarily carries a right carries a
right to alimony pendente lite for an incapacitated spouse and the
ultimate outcome of substantive proceedings cannot have a back-fire so
as to negative such a right. If the allegation, or for that matter the
conduct of the party claiming maintenance or expenses pending the
proceedings is allowed to have such an over-bearing effect so as to
negative such a claim it would be tantamount to prejudging the issues
which is to be tried in the substantive proceedings. 2 If the conduct of a
spouse claiming such a right is to be considered so relevant in the
original proceedings as to negative the right which the law has invested
in a spouse lacking the capacity for his or her maintenance, the
Legislature would have certainly provided to that effect as it has done in
Section 25 of the Hindu Marriage Act. It can be urged with force that the
conduct of a spouse claiming such a right is entirely irrelevant since
otherwise the Legislature would have made an appropriate provision in
Section 24 as it has done in Section 24. 3
Alternative forums
The application filed under Section 24 of the Hindu Marriage Act
cannot be rejected merely on the ground that an application earlier filed
under Section 125 Criminal Procedure Code for maintenance was
rejected. When the proceedings under Section 9 of the Hindu Marriage
Act are pending in trial Court, the wife, under Section 24 of the above
Act, is entitled to file an application for grant of maintenance of
pendente lite. 4
1 Vinod Kumar vs. Kaushalya, I (1996) DMC 603 Raj.

2 Gangu . Pundlik, AIR 1979 Bombay 264.
3 Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174.
4 Virender Kumar vs. Santosh Devi, I (1988) DMC 485 Raj.
Maintenance pendente lite—Appeal under Family Court Act 51
The cause of action for awarding maintenance in the original suit

filed by the wife is altogether different from the right accrued to her to
claim maintenance pending the proceeding instituted by the husband for
restitution of conjugal rights. Her right to seek for interim maintenance
and for costs of the proceeding arises under Section 24 of the Act, the
provisions of which are altogether different from those of Section 18 of
the Hindu Adoptions & Maintenance Act. There is nothing in the Hindu
Marriage Act or in the Hindu Adoptions & Maintenance Act which bars
the wife from claiming maintenance under Section 24 of the former Act,
if she had preferred a suit for regular maintenance under the latter
enactment. Where two different statutes provide specifically for two
different claims if the conditions specified therein are satisfied, either of
them cannot be denied to the claimant simply on the ground that two
relief have been claimed at one and the same time. The intendment and
object of granting maintenance under Section 18 of the Hindu Adoptions
& Maintenance Act is different from that of awarding interim
maintenance under Section 24 of the Act. The maintenance that can be
granted under Section 24 of the Act is for the period during which the
proceeding is pending before the Court. That apart, the right to claim
expenses of the proceeding under Section 24 is an independent right
given to the party. The very object and purpose of Section 24 appears to
be to provide immediate relief for the respondent under the Act, to claim
maintenance and expenses of the proceeding irrespective of other
circumstances, as the regular maintenance suit may take considerable
time for adjudication. 1
Appeal
An appeal will lie, against an interlocutory order if it is a
judgement. Clearly the order passed under Section 24 of the Hindu
Marriage Act is a judgment as it decides the question of maintenance
during the pendency of the suit and therefore, there is final adjudication
so far this question is concerned and an appeal lies against such an
order. 2
Appeal under Family Court Act

A conjoint reading of sub-section (1) and sub-section (5) of
Section 19 of Family Court Act makes crystal clear that only one appeal
lies to the High Court; that no appeal or revision lies except as provided
under sub-section (1) from any judgment, order or decree of a Family
1 Adigarla Simhachalam vs. Adigarla Papamma, AIR 1973 AP 31

(DB): (1972) 1 Andh LT 242: (1972) 2 Andh Pra LJ 216.
2 Raghvendra Singh Choudhary vs. Seema Bai, I (1989) DMC 89 MP.
Court; and further that no appeal lies against such judgment or order
which is interlocutory. It cannot be said that the Legislature has created
an appellate from in 1984 against the orders passed under Section 24 of
the Hindu Marriage Act nullifying Section 28 of that Act contrary to the
object of enactment of the Act as stated in the Bill. Thus the objection of
the Stamp Reporter that the appeal is not maintainable under Section
19(1) of the Family Court Act, 1984 was upheld and appeal was
dismissed as not maintainable. 1
Award to children
The requirement of the husband or the wife would also include
expenses required for the maintenance of the child. The interpretation of
the provisions should not be too literal; but purposive and functional. As
the provisions contained in Section 26 would go to indicate, the court is
empowered to pass interim as it may deem just and proper with respect
to maintenance of minor children. Section 26 operates also during the
pendency of the proceeding under the Hindu Marriage Act. So, assuming
that the provisions contained in Section 24 stricto sensu do not authorize
grant of maintenance to child, Section 26 authorizes the grant of
pendente lite maintenance by way of interim order during the pendency
of the proceeding. , if the petition contains the averments, the court is
empowered to grant maintenance under Section 24 or under Section 24
read with Section 26 of the Act 2 which is as under:
‘Custody of children.— In any proceeding under this Act, the
Court may, from time to time, pass such interim orders and make
such provision in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible, and
may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions
with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim
orders in case the proceeding for obtaining such decree were still
pending, and the Court may also from time to time revoke,
suspend or vary any such orders and provisions previously made.’
Therefore the power of court to award maintenance for children

flows from the power of the court to give directions for the welfare of
the children and court can give necessary directions in this regard if the
circumstances of the court warrant it necessary.
1 Ravi Saran Prasad @ Kishore vs. Rashmi Singh, AIR 2001 All 227
(DB).
2 Mehendra Kumar Mishra vs. Snehlata Kar, I (1983) DMC 219
Orissa: 1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254.
Maintenance pendente lite—Burden of proof 53
Burden of proof
In proceeding under Section 24 of the Hindu Marriage Act the
Court is not obliged to press for burden of proof. The Court in the case
of Ravinder Kaur v. Makhan Singh, 1 following the principles laid down
in the previous cases held that there is an implied obligation in law upon
a party to produce the best evidence in its power and possession for
proper determination of the matter in issue before the Court. The Court
held as under:
It is a settled principle of law that a person who approaches the
Court has primary onus to prove the facts averred for the grant of the
relief prayed for. But it is equally true that the parties have to discharge
their respective onus in the proceedings under Section 24 of the Hindu
Marriage Act. Such proceedings are kind of summary proceedings and
are normally never put to regular trial. In these circumstances, it
becomes necessary that the parties to these proceedings must come
before the Court with clean hands and must discharge their respective
onus. Merely vague denial or their being no affidavit in support of the
case of either of the parties, cannot give advantage to that party in the
event any party withhold the best evidence which in normal course
he/she ought to have in power and possession the Court would be well
within its jurisdiction to draw adverse inference against that party. In
this regard, reference can be made to the case of. 2
It is expected from every litigant irrespective of the fact whether
he is seeking relief from the Court or not that he would state true and
correct facts. These is only implied but specific obligation upon every
party who approaches the Court to verify the facts true to the knowledge
and belief of the party specially in the cases of present kind where the
Court has to take prima facie view keeping in mind the urgency of the
matter regarding grant or refusal of maintenance. Primarily the onus has
to be discharged by respective parties in support of the averments made
in the application or reply as the case may be. Concept of heavy burden
of proof would be applicable during the trial where the parties have the
liberty to lead oral and documentary evidence in support of their case.
The Court would be well within its jurisdiction to draw adverse inference
against a party who actually or attempt to withhold the best evidence and
true facts from the Court with intention to frustration the claim of others
at this preliminary state of proceedings. 3
1 (1999) 1 PLR 389

2 Sangeeta vs. Ved Parkash, I (2000) DMC 470 P&H.
3 Gurvinder Singh v. Harjit Kaur, (1998-2) 119 PLR 422.
For determining the claim for maintenance pendente lite and the
expenses of proceedings as contemplated under Section 24 of the Act,
what ought to be kept in mind is that in case the applicant has no
independent means he or she is always entitled to the maintenance and
expenses, unless good cause is shown to deprive him or her of it. The
good cause for depriving an applicant for the maintenance and expenses
of the proceedings could be the availability of the an assured
independent income derived from the property, service, occupation, or
other sources which may satisfy the genuine needs providing support to
him or her keeping in view the status of the family to which he or she
belongs and not the income of the wife’s parents or other relations which
cannot be taken into account so as to constitute good cause for not
granting interim maintenance and expenses of the proceedings.
There may be cases where the character and gravity of the
conduct is such which may be found repugnant to the concept and the
institution of marriage and it may be wholly unjust to ignore them while
considering the question of releasing or withholding the benefit
contemplated under Section 24 of the Act, but it all depends on the facts
of each case and cogent reasons have to be recorded for withholding the
grant of the benefit secured under Section 24 of the Act. 1
Challenge in Appeal
Section 24 of Hindu Marriage Act, 1955 is a provision for
temporary alimony and does not entitle a Court to pass a decree and a
decision given under Section 24 has been described as an order. Similar
phraseology has been used in the language given in Ss. 25 and 26. There
is, however, a difference between Section 24 and Ss. 25 and 26. An order
passed under Section 24 is of a temporary nature and binds the parties so
long as the matter is pending at the trial. Section 25 provide for
permanent alimony and maintenance whereas Section 26 deals with
custody of children. The Parliament having thought that orders provided
for in Ss. 25 and 26 were of a more serious nature than that contemplated
by Section 24, conferred rights of appeal against orders passed under
them. It did not make any provision of appeal against an order passed
under Section 24 of the Act. 2
No appeal lies from an order under Section 24 of the Hindu
Marriage Act. An appeal is a creature of statute. This appeal is
1 Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 (MP).

2 Ram Narain Pathak vs. Urmila Devi, AIR 1980 All 344: 1980 All
WC 281.
Maintenance pendente lite—Challenge in revision 55
accordingly dismissed. There will be no order as to costs as the

respondent was not represented in this Court. 1
An appeal is provided against decrees passed under the Hindu
Marriage Act and against those orders only which are made under
Section 25 and Section 26 of the Hindu Marriage Act, 1955 (provided
they are not interim orders). A comparison of the new Section 28 with
the original Section 28 shows that no appeal is contemplated under the
amended law against an order under Section 24. What has not been
expressly included in the new Section 28 must be implied to have been
excluded. Therefore, having regard to the new Section 28, no appeal lies
now against an order under Section 24. 2
In one case the application under Section 24 was made before the
amendment was brought in. But Section 39(1)(i) of the Marriage Laws
(Amendment) Act, 1976 declares that all petitions and proceedings in
causes and matters matrimonial which are pending in any court at the
commencement of the Amendment Act shall be dealt with and decided by
such court, if it is a petition or proceeding under the Hindu Marriage
Act, then, so far as may be, as if it had been originally instituted therein
under the Hindu Marriage Act, as amended under this Act, Accordingly,
the appeal against the order must now be considered in the light of the
amendment Section 28 of the Hindu Marriage Act. 3
In another case the District Judge consigned the record and
ordered that unless the amount of maintenance is deposited by the
appellant, no further proceedings shall be taken. In appeal against this
order, it was held that according to provisions of Section 28(2) of the
Hindu Marriage Act, 1955 orders made by the Court in any proceedings
under this Act, under Section 25 or Section 26, shall subject to the
provision of sub-section (3), be appealable if they are not interim orders,
and every such appeal shall lie to the Court to which appeals ordinarily
lie from the decisions of the Court given in the exercise or its original
Civil Jurisdiction. It is thus apparent that though the appeal shall lie to
this Court only if the impugned orders are passed under Section 25 or
under Section 26 of the Act. When the appeal is not against the orders
passed under Section 25 and 26 of the Act, this appeal is not
maintainable. 4
1 Rajpal vs. Dharamavati, AIR 1980 All 350.

2 Narain Singh vs. Rukmani, AIR 1977 AP 93.
3 Narain Singh vs. Rukmani ibid
4 Hari Ram vs. Mahila Pista Bai, I (1985) DMC 471 MP.
Challenge in revision
The expression, or the word, ‘proceeding’ as used in Section 115
of Civil Procedure Code, 1908 has to be given the same meaning as in
the opening part of Sub-section (1). It follows that ‘the other proceeding’
must be an original proceeding and not merely a proceeding in a suit or
any other original proceeding. 1 The proceeding commenced with an
application under Section 24 was a proceeding in the matrimonial
proceeding or the matrimonial suit for divorce. The proceeding under
Section 24 was not by itself an original proceeding. It was accordingly
contended, and I think rightly, that this Court is precluded from varying
or revising the order sought to be revised in the present case unless it
could be shown under clauses (b) of the proviso that the order, if allowed
to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made. 2
An order granting interim maintenance is not an interlocutory
order and revision there against is not barred under Section 397(2) of the
Code. 3
Civil Procedure Code is applicable

In terms of Section 21 of the Act, the proceeding under Section
24 shall be regulated as far as may be by the Code of Civil Procedure
subject of course to the other provisions contained in the Act or the
Rules framed by the High Court. There is no provision either in the Act
or in the Rule that Order 11, Civil Procedure Code shall have no
application to a proceeding under Section 24 of the Act. 4
Even assuming that Section 141, C.P.C. is also to be taken into
consideration, it must be read subject to the special procedure prescribed
under Section 21 of the Act. The maxim generalia specialibus non
derogant (general provisions will not abrogate special provisions) or
generalibus specialia derogant (Special things derogate from general)
applies to matters of procedural law. Section 21 of the Act, which is a
special provision, would therefore prevail over Section 141. C.P.C.
which is a general provision. Moreover all proceedings under the Act
shall be regulated, as far as may be, by the Code of Civil Procedure, and
Section 141 would stand excluded as it would not be practicable to apply
1 Madhvi Sirothia vs. Narendra Nath, 1980 AWC 45.

2 Iqbal Singh Cheema vs. Adarsh Cheema, I (1982) DMC 282 All.
3 Sunil Kumar Sabharwal vs. Neelam Sabharwal, I (1991) DMC 547
P&H.
4 Ganga Devi vs. Krushna Prasad Sharma, AIR 1967 Orissa 19: 31
Cut LT 294: ILR (1964) Cut 958: (1965) 7 OJD 322.
Maintenance pendente lite—Compliance of order 57
it to the proceedings under the Act in view of Section 21. However Order
11 has full application to the proceedings under Section 24 of the Act. 1
Comparison between Hindu Adoptions & Maintenance Act &

Hindu Marriage Act, 1955
There is no inconsistency between the provisions of sub-section
(1) of Section 25 of the Hindu Marriage Act and those Section 18 of the
Act 1956. Assuming that on a true construction of Section 18 of the Act
of 1956 a right is conferred only on a lawfully married Hindu wife to
claim maintenance, it does not follow that the provisions of another
statute whereby parties to a Hindu marriage even other than a lawfully
wedded Hindu wife are granted rights of maintenance would be
inconsistent therewith. Moreover, it is not as if a wider construction of
Section 25(1) of the said Act of 1955 would render the provision of
Section 18 of the Act of 1956 redundant. Under sub-section (1) of
Section 18 of the Act of 1956 a Hindu wife is entitled to claim
maintenance from her husband even without filing any petition for
nullity or divorce or judicial separation or restitution of conjugal rights,
whereas there is nothing either in the provisions of Section 24 of Section
25 of the said Act of 1955 which confers any such right. 2
Compliance of order
To get the order complied with the inherent power can be
exercised by stay of the proceeding initiated by the defaulter or by
striking out his defence where the proceeding has been initiated by the
party in whose favour the order is passed or to dismiss the application of
the defaulter initiating the proceeding. The normal rule of restraint to
exercise inherent power in cases of availability of alternative forum
would not be attracted to realise the money as per the order for pendente
lite maintenance and litigation expenses, since the same is to be paid to a
person having no sufficient means. Execution of the order for the same
takes time in view of the procedure provided under O. 21, C.P.C. and
without the maintenance and litigation expenses, the party in whose
favour the order is passed does not get a fair chance to prosecute or
defend the proceeding as the case may. Where a party does not get
adequate opportunity natural justice is violated. Therefore, the court
comes to the rescue of that person in exercise of the inherent power.
However, the wider the power, the greater should be the restraint. Court
having wide power, therefore, should carefully consider the facts and
1 Ganga Devi vs. Krushna Prasad Sharma ibid

2 Govindrao Tanoji Musale vs. Sou. Anandibai, AIR 1976 Bombay
433.
circumstances to use only that much of power which would be sufficient

for getting the order complied with and not beyond. It should be
remembered that in absence of specific provision, the order should not be
penal in nature. A just balance is to be struck. 1
Contumacious, conduct or deliberate act not to comply with the
order can be dealt with stiffly by dismissing the application or striking of
the defence of the defaulter as the case may be. Before exercising the
said power, court is to give a clear finding based on reasons and material
to that effect. 2
Since the Court has the power to stay the proceeding or dismiss
the same, the power should be exercised by doses. It should first stay the
proceeding and give opportunity to the defaulter to pay the same. In spite
of it where the default continues it might dismiss the application initiated
by the defaulter in case, it comes to the conclusion that the non-payment
was deliberate and contumacious. However, the power should not be
allowed to be utilised by a party to harass the other party to whom
direction is given merely on account of non-payment where the
circumstances would indicate that the non-payment was on account of
reasonable cause. In such cases, the party entitled to receive pendente
lite maintenance and expenses of the proceeding can be allowed to
execute the order and till then the proceeding can be stayed. 3
Computation
Maintenance depends “upon a gathering together of all the facts
of the situation. The amount of free estate, the past life of the married
parties and the families. A survey of the condition and necessities and
rights of the members. On a reasonable view of change of circumstances
possibly required in the future — Regard being of course had to the scale
and mode of living and the age, habits and wants and class of life of the
parties. 4
1 Binayak Chandra Pady vs. Kamala Padhy @ Padhiani, AIR 1987

Orissa 167: (1986) 2 Orissa LR 63: (1987) 63 Cut LT 245.
2 Binayak Chandra Pady vs. Kamala Padhy ibid.
3 Binayak Chandra Pady vs. Kamala Padhy ibid.
4 Ekradeshwari vs. Homeshwar, AIR 1929 PC 128
Maintenance pendente lite—Conclusion of proceedings 59
Conclusion of proceedings
The interim order passed under Section 24 could be passed in
pending proceedings and once the proceedings come to an end, the order
under Section 24 can no longer be passed. 1
The proceedings for maintenance pendente lite have to be
concluded before the main petition is decided. However, the husband can
snap the main proceedings while the application for fixation of
maintenance pendente lite and litigation expenses is still pending either
by absenting from the proceeding in case he is the applicant in the main
case and by getting the same dismissed in default or where the main
petitioner is filed by the wife, by making a statement confessing
judgment in favour of the wife. In he first case, when the husband absent
in the petition, where he is the applicant, the Court will have no option
but to dismiss the petition in default but that would not mean that he can
take away the right of the wife and the child given under Ss. 24 and 26 of
the Act to continue with those applications and to have the amount
determined. Similarly, if the husband is respondent in the main petition
and he confesses judgment in favour of the wife, then two courses can be
open to the Courts. One would be to dispose of the main petition on the
consent of the husband and grant the decree to the wife but to continue to
proceed with the petition under Ss. 24 and 26 of the Act for fixing
maintenance pendente lite. The other would be if it the Court comes to
the conclusion that the petition under Ss. 24 and 26 of the Act cannot
continue if the main petition stand disposed of, then to keep the main
petition in abeyance and first to decide the petition under Ss. 24 and 26
of the Act for granting maintenance pendente lite and litigation expenses
and thereafter to decide the main petition on the concession of the
husband. If the second course is open to the Court to follow, it would
clearly mean that the liability of the husband to pay maintenance
pendente lite continue so long as the petition under Ss. 24 and 26 of the
Act is pending . It has been held that following the first course is neither
illegal nor against any provision of the statute and if that course is
followed by the Courts then there is no justification for not awarding
maintenance pendente lite to the wife even beyond the conclusion of the
main petition till proceeding under Ss. 24 and 26 of the Act are
finalized. 2
1 Rajendra Singh vs. Patwant Kaur, II (1982) DMC 169 Raj; Nand
Kishore Kapoor vs. Shanti Kapoor, II (1982) DMC 181 All.
2 Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981
Hindu LR 345: ILR (1981) 2 P&H 400.
The necessity for passing any interim orders would come to an

end with the termination of the main proceedings and there would be no
question of the appellant trying to defend any proceedings after her
adversary had withdrawn from the contest. There would hardly be any
occasion for making an interim provision for the defence of a case that
had already concluded. 1
The procedure of law or the course of justice can be moulded at
the sweet will of the husband in his favour and to the detriment of the
wife. 2
Conditions for granting maintenance

Expression ‘any proceedings under this Act’ appearing in Section
24 of Hindu Marriage Act, 1955 covers the proceedings under Section
25 thereof. Section 25 contemplates that an order for permanent alimony
can be made at the time of the passing of any decree under the Act or any
time thereafter. Now, if a spouse has to make an application after any
decree under the Act has been passed and has no sufficient means of
his/her own, such spouse has to be provided for prosecuting the
application for permanent alimony when the other spouse opposes any
grant thereof. Any other construction will be narrow and will lead to
frustration of the provision. Section 25 is a continuation of the main
proceedings. Placement or numbering of the Section or the description of
one set of documents as petitions and the other set as applications does
not alter this position. The purpose or using the words ‘husband’ or
‘wife’ is to identify the position occupied by the parties in the main
proceedings, and not to exclude ex spouses. 3
For considering the application for grant of interim maintenance,
only independent income of wife can be taken into account or the
conduct of the applicant, who claims interim maintenance so as to debar
her from getting the interim maintenance. The petitioner has placed
nothing before the Trial Court or before this Court that the respondent
has got an independent source of earning except the bare and vague
affidavit filed before the Trial Court, which was not believed by the Trial
Court. Nothing against the conduct of the respondent has also been
pointed out so as to disentitle her from the interim maintenance. While
hearing on an application for grant of interim maintenance, the law does
not require holding of regular trial or recording of evidence, though in
1 Nirmala Devi vs. Ram Dass, AIR 1973 P&H 48: 1972 Cur LJ 34.
2 Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981
Hindu LR 345: ILR (1981) 2 P&H 400.
3 Dashrath vs. Saroj, I (1989) DMC 222 MP.
Maintenance pendente lite—Conduct of parties 61
some cases it may be necessary to record evidence, but it depends on the

facts of each case. 1
Conduct of parties
The Court normally consider it prudent to adhere to the principle
that a marriage de facto carries the right to alimony pendente lite; but
this principle of matrimonial law has necessarily to be considered in the
light of the attending circumstances, when the Court exercise its
discretion as to whether the wife should be granted or not alimony
pendente lite and expenses for litigation. The conduct of the parties
cannot be ignored by the Court while passing the orders under Section 24
of the Hindu Marriage Act. In a case where the wife has brought
cohabitation to an end by such misconduct for which the husband is not
be blamed, the Court may well refuse to grant alimony and expenses for
litigation pendente lite. 2
In the above case it was found that the wife’s claim for restitution
of conjugal rights has already been dismissed by the trial Court and the
appeal against the same has also been dismissed, after upholding the trial
Court’s finding that the wife is leading a life of adultery by having
regular illicit connections with Dhanraj Hirkane. In these circumstances
it was held that the misconduct on the part of the wife, having thus been
established, she has obviously no case for her claim for alimony and
litigation expenses pendente lite. 3
It is within the discretion of the Court to make an order for
pendente lite maintenance, and merely because two of the conditions,
namely, the wife or the husband, as the case may be, has no independent
income sufficient for her or his support and necessary expenses of the
proceedings, and the other spouse has sufficient means, are satisfied,
then it is not necessary for the Court to order payment of maintenance
pendente lite and expenses of the proceedings. Therefore, though it is not
specifically provided that the conduct of the applicant for maintenance
pendente lite and expenses of the proceedings is also to be taken into
consideration, but the fact that the discretion of the Court to make an
order or not to make an order goes to show that the Court has to take the
conduct and the other circumstances also into consideration while
disposing of the application under Section 24 of the Act. 4

2 Sulochana Bai vs. Tikaram, I (1986) DMC 351 MP.
3 Sulochana Bai vs. Tikaram ibid.
4 Balbir Singh vs. Swaran Kanta, AIR 1981 Raj 266:
1980 Raj LW 654.
Consent order
When the order clearly speaks that it was passed on the basis of
the statement given by the parties at the time of hearing and it was found
that the learned Trial Court rightly exercised its discretion in awarding
the interim maintenance from the date of the order, interference was
declined. 1
Considerations for granting maintenance

25 of the Hindu Marriage Act, 1955, the court is expected to make
detailed inquiry and has to take into account not only the income but
other properties of the parties, their conduct and other circumstances of
the case that the court might consider relevant. But that would not be so
for the decision of the application under section 24 of the Act as in its
very nature, the inquiry under section 24 has necessarily to be summary.
The court cannot be bogged down to intricacies of a protracted trial for
fixing maintenance pendente lite and expenses of the proceedings.
Otherwise, the very object of the section would be frustrated which is
that a party is not handicapped in prosecuting his or her case. But, then
in deciding the application under Section 24 of the Act, the court has to
act in accordance with sound judicial principles and cannot act in an
arbitrary fashion to the prejudice of either of the parties. 2
The following principles 3 would appear to be relevant for the
purpose:
(2) reasonable want of claimant (towards food, clothing, shelter,
medical attendance and treatment, education and the like);
(4) income of the opposite party;
Two corollaries may be added here:
(1) In arriving at the income of a party only involuntary
deductions like income-tax, provident fund contribution, etc. are
to be excluded; and
(2) though under the law opposite party may to be obliged to
maintain brother or sister but if that brother or sister having no
income is living with the opposite party as member of his family
1 Lata Saluke vs. Shivaji Rao Saluke, I (1995) DMC 42 Gwalior.

(2) DMC 110: 1988 RLR 428
3 Pradeep Kumar Kapoor vs. Shailja Kapoor ibid
Maintenance pendente lite—Considerations for granting maintenance 63
and where either there are no parents or are unable to maintain

themselves, the court may in a given circumstance consider the
expenses to be incurred on the maintenance of brother or sister by
the opposite party.
After all, court cannot be expected to adopt a mechanical
Whilst deciding the case of maintenance under the Act, Courts do
not apportion blame to the parties. What is to be seen is whether there
has been a breakdown of marriage. If the parties do not find it feasible to
live together then the wife would be entitled to maintenance unless her
behaviour is such which would even disentitle her from claiming the
relief of divorce. I am unable to hold that the behaviour of the wife is
such that she would be wholly unjustified in leaving the matrimonial
home. In any event, these are matters to be decided on the basis of
evidence at the final decision of the suit. What is important in these
proceedings is to see as to what is the status enjoyed by the parties and
what is the relative income of the parties for the purpose of grant of
maintenance. The husband has admitted that his income is Rs. 40,000/-.
From a perusal of the accounts of the credit card produced by the
husband it was apparent that he had quite expensive tastes. The
restaurants frequented and the scope visited for the purchase left no
manner of doubt that the husband is living a lavish life. Therefore, there
may be some justification in the submission that the assessment of
income by the husband at Rs. 40,000/- is not realistic. On the other hand
it was seen that wife is also admittedly earning Rs. 12,000/- per month.
She had also admitted that she is paying to a chauffeur a sum of
Rs. 2,500/- per month. Certain medical bills which have been attached
with the rejoinder indicated that perhaps the medical expenses are also
being reimbursed. She was also holding a very high ranking position.
Therefore, it would also not be possible to hold that the income of the
wife has been correctly reflected. If the perquisites are included in the
income it would perhaps be much higher than Rs. 12,500/-. Therefore it
was held that wife was better off living with the parents in a bungalow at
Juhu than in a cramped flat at Worli. In these circumstances the amount
of maintenance was fixed as under:
‘The amount of maintenance would have to be fixed by taking a
rational and balanced view of various factors. The Court has to be
guided by the relevant provisions of the Act and the object of
Section 18 and 23. Thus the Court has to bear in mind the status
(2) DMC 110: 1988 RLR 428
of the parties, reasonable wants of the claimant, the income and

property of the claimant and the number of persons whom the
husband has to maintain. Whilst it is important to ensure that the
maintenance amount is sufficient to enable the wife to live in
somewhat the same degree of comfort, as in the matrimonial
home, the amount of maintenance should not be so exorbitant that
the husband is unable to pay. By adoption of such a course, no
purpose would be served. In other words, the amount of
maintenance should be punitive in nature. It should aid the wife
to live in a similar style as she enjoyed in the matrimonial home.
It should not expose the husband to unjustified contempt or other
coercive proceedings. On the other hand, the amount of
maintenance should not be so low, as to make the order
meaningless. Naturally, there can be no mathematical exactitude,
in these matters. The Court has to take a general view, and try to
fix an amount which would be by and large acceptable to both the
husband and the wife. A perusal of the order passed by Justice
Kapadia at the ad-interim stage would show that a maintenance of
Rs. 7,500/- at ad-interim stage was granted on the allegation that
the income of the husband was Rs. 2 lakhs. At the same time it is
to be noticed that the various factors which have been now
brought out on affidavit were not before this Court at the ad-
interim stage. , income depicted by both the sides is very much on
the lower side. The husband could not be enjoying such a high
standard of living unless he was earning extremely well. On the
other hand the wife could not possibly afford to keep a chauffeur
if her income was only Rs. 12,500/-. It would however be
difficult to put a figure on the income of both the parties. There
appears to be hardly any change in the style of life enjoyed by the
wife. She continues to live with her parents in a bungalow at
Juhu. Parents of both the husband and the wife enjoy independent
income. None is dependent on the husband or the wife.
Keeping the aforesaid facts in view I am of the considered
opinion that it would be just and proper that the husband be
directed to pay a sum of Rs. 7,500/- per month as ordered in the
ad-interim order. This would on the admitted fact give the wife
an income of Rs. 20,000/- per month which should be sufficient
to keep her in the style and status enjoyed by her, whilst living
with the husband.’ 1
Actually according to Section 24 of the Hindu Marriage Acts
Court has first to determine the income of the spouses and then in view
of the income of the husband and wife coupled with the other facts and
circumstances the alimony has to be passed. What the learned lower
Court has done in the instant case is that the income of the joint family
has been taken into consideration and from that income inferences have
1 Rekha Deepak Malhotra vs. Deepak Jagmohan Malhotra, II (1999)

DMC 453 Bombay.
Maintenance pendente lite—Date from which amount granted 65
been drawn and thereafter on the basis of the expenditure which

according to the Court was incurred by members of the family, the order
has been passed. The Court has not taken into consideration the material
portions of the evidence and the documents on record showing the
ownership of the watch-shop and the packaging. Unit of incense sticks.
Although it is not necessary for the Court to critically examine the
evidence on record while passing an order of maintenance pendente lite,
however, the mandate of Section 24 of the Hindu Marriage Act should
not be lost sight of and the Court is bound to arrive at a conclusion that
the husband has a particular amount of income from which he can meet
the expenses to a particular extent of his wife. In view of the aforesaid,
in my opinion, the order impugned has been passed without taking into
consideration the relevant circumstances as enumerated in Section 24 of
the Hindu Marriage Act, the order is, therefore, against the provisions of
law. It is accordingly quashed. The case is remanded to the lower Court
for deciding the application afresh after determining the income of the
applicant-husband and thereafter to determine the extent of maintenance
amount which the non-applicant is entitled to get. 1
Date from which amount granted

Ordinarily direction to pay interim maintenance is to take effect
from the date of filling of application for the same unless the Court in
exercise of its discretion for good reasons decided differently. 2
Even in England, law is that on petition for divorce, the Court
may make an order for maintenance pending suit, that is to say, an order
requiring either party to the marriage to make other such periodical
payments for his or her maintenance and for such term, being a term
beginning not earlier than the date of presentation of the petition and up
to the date of determination of the suit as the Court thinks reasonable. In
this case, the petitioner had claimed the alimony pendente lite from the
date she made the application and it was held that the District Judge
ought to have allowed the alimony pendente lite from the date the
petitioner made the application for the said purpose and should not have
allowed it from the date he passed the order, which order was passed
after 10 months of the making of the application. 3
1 Rajendrakumar Jain vs. Sudha Jain, I (1992) DMC 240 MP.

2 Sarojini Sarangi vs. Biswanath Sarangi, I (1989) DMC 53: Radha
Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: : AIR 1983 Ker
139: 1982 Ker LT 417: (1982) 2 Civ LJ 217: Kaushalya Singha vs.
A.K. Singha, II (1983) DMC 323 Delhi.
3 Saroj Devi vs. Ashok Puri Goswami, AIR 1988 Rajasthan 84.
Ordinarily, the amount of maintenance is required to be awarded

from the date of the application but is not from the date of receipt of
summons of the suit against the wife, by the respondent. In absence of
any reasons whatsoever for not awarding amount of interim maintenance
from the date of the application, the order can not be upheld. 1
While the discretion is conferred on the Court to fix a date for
award of maintenance other than the one from the date of the filing of
the petition for divorce, such discretion should be exercised reasonably,
fairly and consistent with the right guaranteed to the wife to be
maintained by her husband and the obligation cast on the husband to
maintain his wife under Section 24 of the Act. Section 24 of the Act
provides for grant of interim maintenance during the pendency of the
proceedings initiated under the Act. Therefore, when the Court on the
basis of the materials on record, finds that the wife is entitled for grant
of maintenance, the maintenance awarded cannot be denied to the wife
from the date of application filed by her seeking maintenance unless her
conduct or the evidence on record discloses that the wife had sufficient
financial capacity to maintain herself till the date of the order and she
deserves to be awarded maintenance only from the date of the order. 2
Provision of Section 24 of the Act applies to both, the wife or the
husband, as the case may be provided the spouse has no independent
income sufficient to support and meet the necessary expenses of the
proceedings. This being so, applied u/Sec 24 of the Act may be filed
along with the suit by the plaintiff or even subsequently therefrom by the
plaintiff. Similarly, the defendant may also avail of this provision by
making application.
Spouse who is claiming decree in his/her favour, if by some
reason or the other, could not file such application along with the suit,
may file application subsequently claiming maintenance pendente lite
from the date of institution of the and the Court in its discretion may
grant maintenance pendente lite payable from the date of the institution
of the suit. But, the respondent cannot enjoy the same benefit claiming
maintenance pendente lite from the date of institution of the suit.
However, in the exercise of judicial discretion, Court may grant
maintenance pendente lite in favour of the respondent from the date of
his/her first appearance in the suit, if prayer is made specifically to this
effect in the application or from the date of the application.
1 Padma Vishnu Pathak vs. Vishnu Vishwanath Pathak, 1995(1)

CCC 235 Gujarat.
2 Lakshmi Sharan vs. Anurag Sharan, I (2001) DMC 767 Kar.
Maintenance pendente lite—Date from which amount granted 67
Therefore, normally the point of time for granting maintenance

pendente lite would be from the date of application. But, if specific
prayer is made in the application then the order may be made operative
in consonance with the prayer made in the application i.e., either from
the institution of the suit in favour of the plaintiff or first appearance
made by the respondent.
However, it is expected of the Matrimonial Court to decide such
application on priority basis at its earliest opportunity on the basis of the
affidavits and counter affidavits as far of possible so as to cut short the
time. However, exception to above rule cannot be ignored where parties
found guilty of protracting the proceedings by any manner and delay
caused in deciding application on account of such a party, in such a case
Court can certainly order for payment of maintenance amount from the
date of prior. 1
However, where the application is kept pending and the party
making application is not responsible for protracting the proceedings, in
such cases Court has to bear in mind two maxims of equity which are
well settled, namely, “Actus Curiae Neminem Gravabit” An act of the
Court shall prejudice no one. In Broom’s Legal Maxims, 2 this maxim is
explained that this maxim was founded upon justice and good sense; and
afforded a safe and certain guide for the administration of the law. The
above maxim should, however, be applied with caution. The other maxim
is “Flat Justitia”, justice be done and that justice should be fair causing
prejudice to no one. 3
Another view is taken by Madhya Pradesh High Court. According
to it the maintenance allowance is normally granted from the date of the
order. A special reason is, however, required to be recorded for granting
maintenance allowance from the date of the filling of the application.
When no special reason has been assigned by the Trial Judge for granting
the interim maintenance allowance from the date of the filing of the
application under Section 24 of the Hindu Marriage Act, it was held that
the order was not sustainable. 4 Even though in an earlier case the same
court had frowned upon the delay which takes place in disposal of
application for maintenance and held to the contrary in following words:
reasons or the other, could not file such application along with
1 Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417

MP.
2 10th Edition, 1939 at page 73
3 Indira Gangele vs. Shailendra Kumar Gangele ibid
4 Vinay Kumar vs. Muthileshbai, 1996(1) CCC 307 MP.
the suit, may file application subsequently claiming maintenance

pendente lite from the date of institution of the suit and the Court
in its discretion may grant maintenance pendente lite payable
from the date of the institution of the suit. But, the respondent
cannot enjoy the same benefit claiming maintenance pendente lite
from the date of institution of the suit. However, in the exercise
of judicial discretion, Court may grant maintenance pendente lite
in favour of the respondent from the date of his/her first
appearance in the suit, if prayer is made specially to this effect in
the application or from the date of the application. 1
Yet another view of Punjab and Haryana High Court is that the
section 24 of the Hindu Marriage Act was enacted with a view to provide
necessary funds to the needy spouse to prosecute the matrimonial
proceedings as also to maintain herself or during the pendency of the
proceedings. If an application is filed under Section 24 of the Act
maintenance pendente lite can be granted from the date of application or
from the date of notice in a proceeding initiated by the husband or wife
for divorce. 2
An application under Section 24 of the Act is not a suit by the
wife for maintenance under the Hindu Adoptions & Maintenance Act,
1956. Therefore, the maintenance could not have been granted prior to
the date of application under Section 24 of the Act. 3
Delay in disposal
It is expected of the Matrimonial Court to decide such application
on priority basis at its earliest opportunity on the basis of the affidavits
and counter affidavits as far of possible so as to cut short the time.
However, exception to above rule cannot be ignored where parties found
guilty of protracting the proceedings by any manner and delay caused in
deciding application on account of such a party, in such a case Court can
certainly order for payment of maintenance amount from the date of
order. 4
However, where the application is kept pending and the party
making application is not responsible for protracting the proceedings. In
such cases Court has to bear in mind two maxims of equity which are
well settled, namely. “Actus Curiae Neminem Gravabit” An act of the
Court shall prejudice no one. In Broom’s 5 this maxim is explained that

MP.
2 Paramjit Kaur vs. Kashmir Singh, I (1994) DMC 504 P&H.
3 Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa.
4 Indira Gangele vs. Shailendra Kumar Gangele, ibid.
5 Broom’s Legal Maxims, 10th Edition, 1939 at page 73
Maintenance pendente lite—Denial of marriage 69
this maxim was founded upon justice and good sense; and afforded a safe
and certain guide for the administration of the law. The other maxim is
“Flat Justitia”, justice be done and that justice should be fair causing
Where a litigation is prolonged unduly, either on account of the
conduct of the Opposite Party, on account of the heavy docket in Court
or for other unavoidable reasons, it would be just and contrary to the
very purpose of the provision to postpone the effectuation of the order to
the date of the order. Such postponement deprives the claimant of the
benefit of the fruits of a decree which he or she could have obtained
through a Civil Court. Looking at the matter from this perspective also,
there is justification to say that ordinarily the claimant who seeks an
order for maintenance under Section 125 of the Code shall obtain the
relief from the date when she or he approached the Court i.e. the date of
application and only where there are circumstances justifying a contrary
view, it can be postponed to the date of the order. 2
When inspite of delay, the learned Magistrate did not pass and
order for interim maintenance. This is a mockery of the legislative
intention to provide a summary, quick and comparatively cheap remedy. 3
Denial of marriage
The object of this Section is that neither party may suffer by her
without means during pendency of proceedings. Exercise of power under
this section does not appear to be dependent on the defence raised by the
opposite party. Even in cases where the factum of marriage is denied by
the opposite party the court has jurisdiction to determine prima facie the
factum of marriage on the basis of documents and affidavits that may be
placed before the Court. The passing of an order under this Section
further cannot be postponed till the final determination of the
relationship of husband and wife. If it be so the purpose of this section
would be frustrated. In a petition for restitution of conjugal rights if the
defence taken is that there was no marriage between the parties, and the
petitioner-wife had no means to support her or to conduct the legal
proceedings she would be without any remedy. In proceedings for
restitution of conjugal rights the factum and validity of marriage is

MP.
2 Saroj Bai vs. Jai Kumar, 1994 JLJ 725 FB.
3 Rafikunbai vs. Liyakat Khan, I (1996) DMC 317 MP.
generally denied so that the party approaching the Court for relief may
be harassed and on account of harassment, such party may not pursue the
remedy. I am therefore, of the opinion that even if the factum or validity
of the marriage is denied, the Court exercising jurisdiction under the Act
has power to award maintenance and litigation expenses to the applicant
i.e. the wife or the husband after prima facie determining whether there
was marriage age or not. 1
To allow a defendant the bald plea of denial of status in the face
of letters written by the defendant, in the face photograph showing the
plaintiff and the defendant in intimate relationship would be to allow a
prima facie case to be thwarted at the hands of a designing defendant.
The device of a denial for the sake of suggesting that the Court has no
jurisdiction to grant interim maintenance is to strike at the root of
administration of justice and more so in a case where the plaintiff who
claims to have lived with the defendant as husband and wife for years is
now deserted by the defendant and is treated by the defendant as a
woman without any status. It would allow injustice to be perpetrated by
mere deliberate act of denial by the defendant. 2
Determination of amount
The wife moved an application under Section 24 of the Act for
fixation of maintenance pendente lite on the ground that she had no
source of income whereas the husband was earning more than Rs. 1500/-
per mensem. She claimed maintenance allowance pendente lite at the rate
of Rs. 500/- per mensem and litigation expenses of Rs. 2,000/-. The
husband also moved an application under Section 24, of the Act against
the wife on the ground that the wife was doing embroidery and tailoring
work and was earning Rs. 2,000/- per mensem. He was unemployed and
was dependent upon his poor parents. He claimed maintenance allowance
pendante lite at the rate of Rs. 500/- per mensem and Rs. 2500/- as
litigation expenses. The Matrimonial Court, on appraisal of the material
placed before it, came to the conclusion that the wife had no source of
income, whereas the husband was doing the business of radio and T.V.
technician and was earning Rs. 1000/- per month. He fixed the
maintenance pendente lite for the wife at rate of Rs. 300/- per mensem
and also directed the husband to pay Rs. 1100/- as litigation expenses to
her. The order was affirmed. 3
1 Jagmohan Verma vs. Sunita Verma, I (1983) DMC 176 Delhi.

2 Nemai Chand vs. Lila Jain, AIR 1968 Cal 405 (DB).
3 Baljore Singh vs. Alka, I (1991) DMC 318 P&H.
Maintenance pendente lite—Discretion of Court 71
Discretion of Court
Wide discretion is conferred on the Court to pass order for
maintenance pendente lite and costs of the proceeding. But the discretion
is judicial and not arbitrary or capricious. The initial words of the
Section “in any proceeding under this Act” and the words “such sum as,
income of the respondent, it may seem to the Court to be reasonable” are
clearly suggestive of the wide amplitude of the discretionary power
conferred on the Court. It is also clear from the Section 24 that the
amount of maintenance that one spouse may be ordered to pay to the
other must be such as appears to be reasonable to the Court in exercise of
that discretion and the Court in doing so must have regard to the
petitioner’s own income and the income of the respondent. Any decision
on the subject of alimony under the Section must necessarily turn on the
facts and circumstances of each case and no fixed rules can be expected
on the question. While determining the quantum of maintenance the
Court has not only to take into consideration the income of the applicant
and the respondent as provided in the Section, but also relevant facts and
circumstances in the case including the conduct of the parties. In its very
nature the quantum of interim maintenance cannot be taken to be a fixed
amount which. If determined once, can in no circumstance be altered.
The change in the circumstances relevance to the matter may call for a
revision of the order. No doubt Section 24 unlike Section 26 does not
expressly provide that the Court may pass orders for interim
maintenance/expenses of the proceeding from time to time. But there is
no express or implied bar in the provision for exercise of such
jurisdiction in a deserving case. Therefore, it will neither be legal nor
just and proper to limit the wide discretionary power conferred on the
Court by holding that the Court has no power to modify or vary its order
awarding interim maintenance even on proof of changed circumstances. 1
reasons or the other, could not file such application along with the suit,
may file application subsequently claiming maintenance pendente lite
from the date of institution of the suit and the Court in its discretion may
grant maintenance pendente lite payable from the date of the institution
of the suit. But, the respondent cannot enjoy the same benefit claiming
maintenance pendente lite from the date of institution of the suit.
However, in the exercise of judicial discretion, Court may grant
maintenance pendente lite in favour of the respondent from the date of
1 Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491
Orissa.
his/her first appearance in the suit, if prayer is made specially to this

effect in the application or from the date of the application. 1
Normally the point of time for granting maintenance pendente lite
would be from the date of application. But, if specific prayer is made in
the application, then the order may be made operative in consonance
with the prayer made in the application i.e., either from the institution of
the suit in favour of the plaintiff or first appearance made by the
respondent. 2
A bare look to the provision of Section 24 of the Act demonstrate
that it has been enacted exclusively for the benefit of the poor spouse
who is unable to maintain and contest the case. therefore, it is always for
such a poor spouse to avail this statutory benefit. 3
It is expected of the Matrimonial Court to decide such application
on priority basis at its earliest opportunity on the basis of the affidavits
and counter affidavits as far as possible so as to cut short the time.
However, exception to above rule cannot be ignored where parties found
guilty of protracting the proceedings by any manner and delay caused in
deciding application on account of such a party, in such a case Court can
certainly order for payment of maintenance amount from the date of
order. 4
Where the application is kept pending and the party making
application is not responsible for protracting the proceedings, in such
cases Court has to bear in mind two maxims of equity which are well
settled, namely, “Actus Curiae Neminem Gravabit” An act of the Court
shall prejudice no one. In maxims Broom’s Legal maxims, 5 the maxim is
explained that this maxim was founded upon justice and good sense; and
afforded safe and certain guide for the administration of the law. The
above maxim should, however, be applied with caution. The other maxim
is “Flat Justitia”, Justice, be done and that justice should be fair causing
No doubt, there is no specific provisions in Section 24 of the Act
relating to the issuance of such direction in fixing the point of time from
which date maintenance pendente lite be made operative i.e., either from

MP.
2 Indira Gangele vs. Shailendra Kumar Gangele ibid
3 Indira Gangele ibid
5 10th Edition, 1939 to page 73
Maintenance pendente lite—Dismissal of main petition 73
the date of application, from the date of order or from the date of
institution of the suit. It however, leaves to the discretion of the Court. 1
Dismissal of main petition

The main object of the Section is to provide some amount for the
sustenance of parties who are unable to support themselves. Under Sub-
section (1) the provision can be made at the time of passing of this
decree or at any time subsequent thereto.
As seen from Section 25 of Hindu Marriage Act, 1955 the
expression used is “at the time of passing of any decree”. The word
“decree” is not defined under the Hindu Marriage Act. Therefore, we can
borrow the definition under the Civil Procedure Code. In fact, under
Section 25-A of the Act, the provisions of the Civil Procedure Code are
made application for enforcement of decrees and order under the Hindu
Marriage Act, Section 2(2) of Civil Procedure Code defines a “decree” as
a formal expression of an adjudication which conclusively determine the
rights of parties with regard to all or any of the matters is controversy in
the suit and may be either preliminary of final.” Thus a decree means the
expression of an adjudication. The suit or petition may either be
dismissed or allowed. A relief may be given or refused. In either case, it
is a decree. There is no reason to give a restricted meaning to the
expression “decree”. In this connection the word “any” is also
significant. It indicates either allowing or rejecting. Under Section 28 of
the Act all decrees are made appeal-able. If the contention of the learned
Counsel that a decree means only granting a relief, then no appeal would
lie against an order dismissing the petition as the word used in Section
28, the appeal section, is decree. But it is submitted that Section 28 used
the words “decree made” as distinguished from “passing of the decree”
used in Section 25. In our view it is a distinction without any difference.
The expression “ at the time of passing any decree” used in Section 25
only means “that at the time of disposal of the case”. The emphasis is on
the time and this is evident from the later expression “or at any time
subsequent thereto.” The further expression that “any court exercising
jurisdiction under this Act” also lends support the this conclusion.
This Section from its express language empowers every Court
dealing a matrimonial matter to give the relief of maintenance to either
party irrespective of the fact whether the petition for any of the relief
mentioned in Section 9 to 13 is dismissed or allowed, whether the relief
are granted or declined.

MP.
Section 23-A of the Hindu Marriage Act was introduced in 1976.

This Section enables the opposite party not only to oppose the relief of
divorce, judicial separation or restitution of conjugal rights, but also
make a counter claim for any relief under the Act and proves that it was
the petitioner who was guilty of adultery, cruelty or desertion he or she
is entitled to that relief.
The words used are “any relief” which includes a relief under
Section 25 and if the opposite party makes a counter claim for the relief
under Section 25 while opposing the petitioner’s claim for divorce this
Section empowers the Court to grant such relief. The word “any relief”
occurring in Section 23-A has been held to include not only the reliefs
mentioned in Section 9 to 13, but also a relief under Section 25 of the
Hindu Marriage Act. 1
The Court, during the pendency of the proceedings under the Act
viz. for restitution of conjugal rights, judicial separation, divorce or
nullity or marriage, can grant to a spouse having no sufficient income of
maintain himself/herself and to meet the necessary expenses of the
proceeding maintenance pendente lite and litigation expenses. The object
of enacting the section is that an indigent spouse should not suffer during
the pendency of the proceedings because of his/her poverty. It is the duty
of the Court to decide such an application expeditiously so that the
indigent spouse is not handicapped because of want of funds. However,
if the application under section 24 is not decided during the pendency of
the main petition on account of dilatory tactics of the other spouse or for
some unforeseen circumstances, the whole purpose of the section stands
frustrated in case it is dismissed on the ground that after the decision of
main petition it does not survive. Therefore even if the main petition is
decided finally, the application under Section 24 which is pending
decision can continue. Similarly, a revision petition filed against an
order under section 24 can continue in spite of disposal of the main
petition. 2
The following observations of D.S. Tewatia, J. in Amrik Singh vs.
Smt. Narinder Kaur 3 are worth referring in this regard:
“If the view is that the provisions of section 24 of the Act were
intended by the legislature to enable the indigent spouse to secure
wherewithal to defend the proceedings against oneself and to
1 Silla Jagannadha Prasad @ Ramu vs. Silla Lalitha Kumari, I (1988)

DMC 319 AP.
2 Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H
298: (1984) 86 Pun LR 485: AIR 1984 P&H 332.
3 AIR 1979 (P&H) 211.
Maintenance pendente lite—Dismissal of main petition 75
maintain oneself during the pendency of the proceedings, then it

is incumbent upon the Courts to take an immediate decision upon
the petition under section 24 of the Act, otherwise the delay
would defeat the very purpose. Otherwise in a case where the
Court delays the decision on the application till the fag end of the
trial of the main case, right to maintenance and litigation
expenses would be denied to the applicant on the specious that
she had been able to prosecute the litigation for all that long
period and had survived and so she was not entitled to favourable
order on her application, for the litigation expenses and the
interim maintenance under Section 24 of the Act was intended
merely to meet the contingency of an indigent spouse not being
able to prosecute the case and survive during the pendency of the
proceedings which contingency would no longer exist when the
proceedings had reached the stage of conclusion though not
finally concluded.
I do not thing that the interim maintenance and litigation
expenses could be denied to the applicant on such a ground when
the applicant had been filed during the pendency of the main
proceedings and it is the court which delayed its decision thereon.
If the relief could not be denied in the above situation then surely
the applicant would not be denied the same relief even after the
conclusion of the main petition”.
This judgment was followed in Sundershan Kumar Khurana vs.
Smt. Deepak, 1 and Bhanwar Lal vs. Smt. Kamla Devi. 2 Gokul Chand
Mital, J. in Sudershan Kumar Khuran’s case (supra) observed that
section 24 and 26 were enacted to provide maintenance to wife and child
pendente lite Generally, the petitions under these sections are decided
first and should as a matter of fact be decided before conclusion of main
petition.
The word “proceeding” in the section appears at three places and
it connotes the main proceedings, that is, proceedings other than
proceedings under Section 24. The words “monthly during the
proceedings such sum” are very important. These words show the
intention of the legislature that it intended to give maintenance to the
indigent spouse till disposal of the main petition. If the application under
Section 24 is taken to be included in the word “proceeding”, anomalous
results would follow. Therefore if the application under Section 24
1 AIR 1981 P&H 305.

2 AIR 1983 Raj 229.
continues after dismissal of the main petition, the applicant is entitled to

the maintenance till the date of the decision of the main petition. 1
Section 24 only mandates that if it appears to the court that either
the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and for necessary expenses of the
proceedings the court may order the respondent to pay to the petitioner
the expenses of the proceeding. Implicitly or explicitly the section did
not say at what point of time a party who has got the entitlement to claim
for an order for the expenses of the proceedings should apply. The
language of the section may indicate that the application should be filed
as an interlocutory application in the main proceedings. Certainly
Section 24 does not contemplate the initiation of an independent
proceedings. But it shall not be treated as an independent proceeding on
the mere happening of an accident that such an application remained
undisposed of when the main proceedings ended. Notwithstanding the
disposal of the main proceedings the court should dispose of the petition
under Section 24 on merits, if circumstances do require it. The Court has
power to do so. 2
Disputed marriage
The same expression “wife” and “husband” have been used in
Section 24 of the Act and it is apparent that those expressions in that
section on a parity of reasoning cannot be said to have been used in any
difference sense than in section 25(1) of the Act. The expressions are
wide enough to include any wife or husband who has brought a
proceeding in the Court under the Act. In such case though the husband
claimed that the wife had been divorced by writing made in May 1974,
the wife denied the factum and validity of the divorce and that obviously
would be an issue to be tried in the proceeding which the wife has
brought before the relief can be granted to her. That, however, is a
matter to be decided upon the merits of the case and as long as it is not
decided, the proceeding cannot be terminated. Section 24 of the Hindu
Marriage Act, makes provision for the interim alimony obviously in
respect of such cases where pending the decision some provision has to
be made for maintenance pendente lite and expenses of the proceedings. 3
1 Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H
298: (1984) 86 Pun LR 485: AIR 1984 P&H 332.
2 Ellikkal Kuniyil Raghavan vs. K.K. Saroja, AIR 1987 Kerala 151:
1986 Ker LJ 1127: (1987) Ker LT 376: 1987 Mat LR 185: (1987) 2
DMC 408.
3 Sou Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay.
Maintenance pendente lite—Distinction with alimony 77
Distinction with alimony

Under Section 24 of the ‘Act’ maintenance ‘pendente lite’ is to be
granted while under Section 25 of the ‘Act’, provision has been made for
grant of permanent alimony for a period after the passing of the decree.
The above provisions are, therefore, distinct and independent of each
other. 1
The object behind Section 24 of the Act providing for
maintenance pendente lite to a party in matrimonial proceedings is
obviously to provide financial assistance to the indigent spouse to
maintain herself or himself during the pendency of the proceedings and
also to have sufficient funds to carry on the litigation so that the spouse
does not unduly suffer in the conduct of the case for want of funds.
When considering such a piece of legislation, it would not be right to
adopt a narrow pedantic approach. On the other hand if the Court desires
to gather the legislative intention from the provisions of such an Act, it
must adopt a liberal and progressive approach keeping in mind that it
was the liberal and progressive approach of the Legislature which led to
the enactment being passed. It may be seen from the above mentioned
provisions of the Act that even in a case of bigamous marriage one of the
parties can seek a decree of nullity of marriage by way of petitioner or
respondent which is permissible under Section 23-A of the Act. It may
also be seen that in pending proceedings even at the instance of the
second wife is a void bigamous marriage, the Court is empowered to
make an attempt for re-conciliation, to pass necessary orders with regard
to the custody of the children and disposal of the property exchanged at
the time of marriage. The Court has also power in such proceedings to
make an order of permanent alimony or maintenance under Section 25 of
the Act. The Act confers wide powers on the matrimonial Court so as to
regulate matrimonial relationship between the parties and such powers
are to be exercised by the Court even in a case of alleged or proved
bigamous marriage. In enacting Section 24 a special provision is made
for ordering interim maintenance and the expenses of litigation to be
provided for the contesting husband or wife if he or she had no
independent sufficient income. I therefore, see no reason why the words
“wife” or “husband” used in Section 24 should not be interpreted so as to
include a man and woman who have gone through a ceremony of a Hindu
Marriage which would have been valid but for the provisions of Section
11 read with Clauses (i) of Section 5 of the Hindu Marriage Act. These
words have been used as convenient terms to refer the parties who have
gone through a ceremony of marriage whether or not that marriage is
1 Ajay Ahuja vs. Manju Ahuja, II (2000) DMC 267 MP.

valid or subsisting, just as the word “marriage” has been used in the Act
to include a purported marriage which is void ab initio. 1
Distinction with Section 125 Criminal Procedure Code

The proceedings under Section 125 Cr.P.C. are quite independent
proceedings, even if she has been allowed maintenance pendente lite
under Section 24 of Hindu Marriage Act. The maintenance allowance
under Section 24 is for a temporary period. It is true that the Magistrate
while passing an order may give such direction so that the amount
warded by the Civil Court under Section 24 of the Hindu Marriage Act
may be adjusted, during such period for which the maintenance
allowance so awarded under Section 24 subsists. The provisions of
Section 24 of the Hindu Marriage Act cannot override the provisions of
Section 125, Cr.P.C. Section 24 of Hindu Marriage Act is for a period
during which the matrimonial proceedings are pending in the Civil
Court, whereas the allowance which is awarded by the Judicial
Magistrate under Section 125, Cr.P.C. is not for a limited period, but is
for a period during which the wife or other dependents of the husband
are neglected by him and the wife refuses to live with her husband. 2
Duration of payment
The marginal note of the section is very significant. It is
“maintenance pendente lite and expenses of proceedings”. The section
expressly says that the order of maintenance which the Judge makes
under Section 24 of the Act is to last only for the period of the
proceedings. The words “where in any proceedings under this Act” and
the phrase “during the proceedings” clearly show that it is a temporary
order the lite or which is coterminous with the proceedings. If there is no
proceeding before the Judge, Section 24 cannot be invoked. The question
is what is the meaning of term “proceedings” as used in Section 24. 3
Section 30 of J&K Hindu Marriage Act is a facsimile of Section
24 of the 1955 Act. This section makes maintenance payable to the wife
or the husband as the case may be, during the proceeding, without further
specifying the point of time during such proceeding from which the same
is payable. Obviously, therefore, it does not empower the Court to grant
maintenance either before the commencement of the proceeding, or after
the same has ended. There is no warrant for the proposition that
1 Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC

221 Bombay.
2 Pushpa Devi vs. Anup Singh, I (1985) DMC 175 All.
3 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
Maintenance pendente lite—Duration of payment 79
proceeding in a suit commences only from the stage contemplated by

Order 13. On the other hand, it commences with the filing of the plaint.
On the plaint being filed, summons is issued to the defendant, who on its
service appears in the Court and files his written statement. After the
parties have filed their pleadings, the Court for the first time proceeds to
apply its mind to the controversy raised in the suit. This controversy is
then reduced to the form of distinct issues, which are framed by the
Court, not only from the allegations made by them in their pleadings, but
also from the allegations made by the parties on oath, and the contents of
the documents produced by them. That is one of the reasons why
production of documents is terms of Order 13 is insisted on or before this
stage, which is called first hearing; the other reason being preventing
production of fabricated documents. Then comes the next stage in the
proceeding. The parties are asked to lead evidence in support of their
respective cases. After they have let it, the Court proceeds to hear
arguments and give its judgment in the case. This is the last stage in the
proceedings, and last hearing in the suit. It is, therefore, obvious that
proceeding in a suit does not commence on the first hearing, rather the
first hearing is one of the various stages in that proceeding, which starts
as soon as the plaint is filed in the Court. That apart, the word
proceeding in Section 30 has to be given the same meaning, even
keeping in view its intent and scope. The object behind the enactment is
obviously two fold; firstly, to prevent vagrancy resulting from strained
relations between the husband and wife; and secondly, to ensure that the
indigent litigating spouse is not handicapped in defending or prosecuting
the case due to want of money. That is why Courts have always insisted
that whenever an application is made under Section 30, it must be
disposed of before any further steps are taken in the main case. They
have been gone to the extent of holding that the Court in exercise of its
inherent powers should stay further proceedings in the main petition till
the order passed by it granting maintenance pendente lite or litigation
expenses is complied with by the opposite party. 1
The words “During the proceedings” in Section 24 of Hindu
Marriage Act, 1955 may in the first flush show that the party is entitled
to claim maintenance only during the pendency of the proceedings, but
on a close scrutiny these words clearly apply not only to the proceedings
before the trial court but also during the pendency of proceedings in
appeal as well as during the period between the termination of
proceedings in the trial court and filing of appeal. The appeal is only
continuation of the suit of proceedings in the trial court, without there
1 Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
being a suit or proceedings in the trial court there cannot be an appeal,

therefore the proceedings in the appeal being continuation of the
proceedings, the party is entitled to claim maintenance during the period
between the date of the decree and the date of filling of the appeal.
Merely because the party is unable to file an appeal within a particular
period and that too after deducting the time for obtaining the copies, it
does not mean that the party is not entitled to claim maintenance during
that period. If this interpretation is accepted, it would be defeating the
purpose of the provisions enabling a party to claim interim maintenance
pending proceedings under this Act. ‘Proceedings’ means proceedings
under the Act and it is referable to the Act only. 1
It is the legal obligation of the husband to maintain his wife.
When the law provides for pendente lite maintenance it does not mean
that the maintenance amount is to be paid only during the continuation of
the proceeding. The general duty of maintaining wife, particularly when
she has no means of her livelihood is merely re-emphasized by such a
provision by pendente lite maintenance. Therefore, even for the period of
pendency of appeal the husband is bound to pay the maintenance. Even
otherwise the appeal is a continuation of the original proceeding and
hence the husband is liable to pay the maintenance for the period. 2
Duty of husband
A person is bound to maintain his wife is she if unable to
maintain herself. In cases of desertion or abandonment a wife may seek
maintenance allowance from the Court, but so long as that has not been
granted she will definitely try to earn livelihood for her sustenance. It
appears that Vidhyabai was forced to work as she was not being
maintained by her husband. It also appears that learned Sessions Judge
has taken into consideration this fact also and that is why lesser amount
has been granted in her favour. This is also not but of place to mention
here that while granting maintenance allowance if it is found that a
person seeking such allowance is having some income & that is not
sufficient, the person who is liable to maintain can be directed to
compensate to the extent of insufficiency. 3
1 M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP).

2 Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP:
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L
1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam
Chaturvedi, II (1984) DMC 53 Delhi.
3 Kailash vs. Vidhyabai, I (1993) DMC 594 MP.
Maintenance pendente lite—Effect of non payment on appeal 81
Effect of interim maintenance

The fact that the non-applicant wife did not take any step against
the impugned order cannot by itself lead to a conclusion that Rs. 100/-
per month was a sufficient amount for her maintenance. There can be
many reason for her not taking any step in that behalf. The question of
determination of maintenance pendente lite apart from evidence is not
wholly but to a greater expend depend upon some fair approximation. 1
Effect of non payment on appeal

In case the defaulting party happen to be the petitioner or the
appellant the court may pass an order staying further proceedings till the
order passed under Section 24 is complied and if the default is persistent
it may dismiss the petition or appeal. In cases where the defaulting party
is the respondent the court may refuse to hear it till the order passed
under Section 24 of the Act is duly complied and may strike off the
defence of the defaulting party. But the appellate court would not be
justified in allowing the appeal on the ground that the respondent has
failed to comply with the order passed under Section 24 of the Act. For
the purpose of allowing the appeal the appellate court has to set aside the
judgment of the court below and this can be done only if the appellate
court reverses the findings recorded by the trial court. In view of the
non-compliance of the order passed under Section 24 of the Act by the
respondent the appellate court may refuse to hear the respondent and
may proceed to hear the appeal ex parte and allow the appeal if the
appellate court is satisfied that the judgment of the lower court cannot be
sustained. But the appellant cannot ask for the appeal being allowed only
because the respondent has failed to comply with the order passed under
In one case the original petition for the grant of a decree for
divorce was filed by the wife herself which was dismissed by the trial
Court on merits. In the appeal filed by her, she moved the application
under Section 24 of the Act, which was allowed, but the husband did not
pay the maintenance as ordered. It was held that even if his defence is
struck off the appeal could not be allowed on that ground alone unless
the Court is satisfied on merits of the claim made by the wife in her
divorce petition. It was further held that the position would have been
different if the original petition was filed by the husband and the same
was either allowed or dismissed and the appeal was filed by either party
who was not complying with court order therein. In case, court order
1 Mangli Lal vs. Mangibai, II (1987) DMC 172 MP.

2 Kanta Choudhary vs. Rajendra Choudhary, I (1983) DMC 313 Raj.
under Section 24 of the Act, was not complied with, by the husband, the
appeal filed by him could be dismissed by the court, but since the
original petition was filed by the wife and the same was dismissed by the
trial court, in appeal it could not be allowed simply on the ground that no
maintenance was paid by the husband. 1
Effect of operation of Hindu Adoptions & Maintenance Act

The Hindu Adoptions & Maintenance Act, 1956 is retrospective
is operation to the extent that it applies to pending litigations. It was
consequently held that the plaintiff is entitled to maintenance, though she
is living separately, and separate residence from the date on which the
Hindu Adoptions & Maintenance Act, 1956 came into force, that is w.e.f.
25-12-1956. 2
Enforcement of order
No doubt, wife can file a petition under O. 21, R. 37, Civil
Procedure Code, 1908 for the recovery of this amount and the husband
can be hauled up under the Contempt of Court also for disobedience of
the aforesaid Court’s order, but Section 24 of the Act empowers the
matrimonial Court to make an order for maintenance pendente lite and
for expenses of proceedings to a needy and indigent spouse. If this
amount is not made available to the applicant, then the object and
purpose of this provision stand defeated. Wife cannot be forced to take
time-consuming execution proceedings for realising this amount. The
conduct of the husband amounts to contumacy. Law is not that powerless
as to not to bring the husband to book. If the husband has failed to make
the payment of maintenance and litigation expenses to the wife, his
defence can be struck out. 3
In order to obtain the enforcement of the order passed under
Section 24 of the Act through the process of execution, the parties would
be required to wait, in certain cases, till a number of years. The question
1 Sukhwinder Kaur vs. Harnek Singh, AIR 1988 P&H 208: (1988) 24
Reports 51: (1988) 1 Hindu LR 432: (1988) 1 DMC 476: (1988) 1
Cur LJ (C & Cri) 151: 1988 Marriage LJ 424.
2 K.A. Singh vs. A. Ningoi, AIR 1965 Manipur 10.
3 Bani W/o Parkash Singh vs. Parkash Singh, AIR 1996 P&H 175:
See also Swarno Devi vs. Piara Ram, 1975 Hindu LR 15: Gurdev
Kaur vs. Dalip Singh, 1980 Hindu LR 240: Smt. Surinder Kaur vs.
Baldev Singh, 1980 Hindu LR 514: Sheela Devi vs. Madan Lal
1981 Hindu LR 126: Sumarti Devi vs. Jai Parkash, 1985 (1) Hindu
LR 84: 1996 (2) Civil Court C 26: 1996 (1) Hindu LR 698: 1996
Marri LJ 549: ILR 1997 (1) P&H 118: 1996 (113) Pun LR 219: 1996
(2) RRR 120: 1996 (2) LJR 416: 1996 (3) ICC 114.
Maintenance pendente lite—Enforcement of order 83
is whether this particular procedure would enhance the object of the Act.
Matrimonial proceedings by their very nature are expected to the
expeditious because there would be absolutely no point in giving redress
to a party in matrimonial proceedings after a number of years which
would not stop the parties ageing. Asking a party to the matrimonial
proceeding, to take resort to execution proceedings under Section 28 for
the enforcement of order of interim alimony or expenses pendente lite,
would be obviously resulting in frustration of justice. 1
The same can be said as regards the starting of contempt
proceedings, because, contempt proceedings also are likely to take
sufficiently long time for their culmination and during that time the
original petition would be required to be stayed. Even thereafter it is
doubtful whether in contempt proceedings the amount ordered to be paid
under Section 24 of the Act would be paid or not. 2
Section 24 of the Act enables the court to pass an order directing
payment of maintenance pendente lite and expenses of proceedings by
one spouse to the other. Such an order is enforceable as a decree under
Section 28-A of the Act. Since the aforesaid mode of enforcement may
not, prove effective so as to enable the party in whose favour the order
has been passed to avail the benefits of the said order during the
pendency of the proceedings, the court in exercise of its inherent powers,
can pass an appropriate order for securing the compliance with an order
passed under Section 24 by the defaulting party. In case the defaulting
party happen to be the petitioner or the appellant the court may pass an
order staying further proceedings till the order passed under Section 24
is complied and if the default is persistent it may dismiss the petition or
appeal. In cases where the defaulting party is the respondent the court
may refuse to hear it till the order passed under Section 24 of the Act is
duly complied and may strike off the defence of the defaulting party. But
the appellate court would not be justified in allowing the appeal on the
ground that the respondent has failed to comply with the order passed
under Section 24 of the Act. For the purpose of allowing the appeal the
appellate court has to set aside the judgment of the court below and this
can be done only if the appellate court reverses the findings recorded by
the trial court. In view of the non-compliance of the order passed under
Section 24 of the Act by the respondent the appellate court may refuse to
hear the respondent and may proceed to hear the appeal ex parte and
allow the appeal if the appellate court is satisfied that the judgment of
1 Jai Singh vs. Khimi Bhiklu, AIR 1978 HP 45 (FB): 1978 Sim LC
227: ILR (1978) Him Pra 83.
2 Jai Singh vs. Khimi Bhiklu, ibid.
the lower court cannot be sustained. But the appellant cannot ask for the
appeal being allowed only because the respondent has failed to comply
with the order passed under Section 24 of the Act. 1
Enhancement of amount of maintenance

When the husband was getting just about Rs. 675/-per month by
way of salary, she had been allowed a maintenance amounting to a little
less than 1/4 th of his salary. Later he was getting a salary of more than
Rs. 2,000/-per month. Thus the amount if maintenance fixed at the rate
of Rs. 350/-by the learned Additional Session Judge was considerably
less than the 1/4 th of the salary, It was held that there could not be any
dispute that cost of living had increased considerably over the past few
years and it would be impossible for wife to survive with a meagre sum
of Rs. 350/- per month by way of maintenance. Viewed in this
perspective, the amount of maintenance viz., Rs. 350/- fixed by the
Additional Session Judge was held to be inadequate. Accordingly the
amount was enhanced to Rs.500/- per month. 2
Entitlement of children
A bare perusal of Section 24 of the Act reveals that it does not
envisage the grant of interim maintenance allowance of the minor
children. Section 26 of the Act specifically deals with the custody of
children, their maintenance and education. The ambit and scope of
Section 24 and 26 of the Hindu Marriage Act are quite different. Section
26 specifically provide determination by the Court with regard to the
custody, maintenance and education of minor children, consistently with
their wishes. When admittedly no such enquiry was conducted by the
Court, the grant of maintenance for the upkeep of children under Section
24 of the Hindu Marriage Act is wholly unwarranted. 3
Similarly the view of Orissa High Court is also that the award of
maintenance for a child is not within the purview of S. 24 of the Hindu
Marriage Act, 1955. 4
However the Madhya Pradesh High Court has held that the need
of the child is as much the need of the mother, because a mother is not
expected to neglect the need of the child and is on the contrary expected
to meet the need of the child even at the expenses of her own
maintenance. Therefore while granting maintenance under Section 24 of
1 Kanta Choudhary vs. Rajendra Choudhary, I (1983) DMC 313 Raj.

2 Gurcharan Singh vs. Hardev Kaur, I (1993) DMC 213 P&H.
3 Satya Pal vs. Sona Devi, II (1992) DMC 630 P&H.
4 Purusottam Das Agarwala vs Puspa Devi, AIR 1982 Orissa 270.
Maintenance pendente lite—Filing of written statement 85
the Hindu Marriage Act, 1955 to a wife not only her own need for
maintenance of herself would be considered but if she had a child to look
after, need of the child shall also be taken into account. 1
Simply because the child is also living with the mother, it cannot
be said that she has to be deprived of the maintenance. The father is
bound to maintain his daughter wherever she is. 2
Section 24 of Hindu Marriage Act, 1955 makes provision for
granting maintenance pendente lite to a party who has no independent
income sufficient for his or her support. This section does not provide
for granting maintenance for the children. Section 26 of the said Act
provided for interim orders from time to time as also for making
provision in the decree with regard to custody, maintenance and
education of minor children consistently with their wishes. Section 26,
therefore, empowered the Court to provide for the maintenance of minor
children. It provided for maintenance both pendente lite as also after the
passing of the decree. Therefore the order granting separate maintenance
to each of the three adult children had clearly traversed beyond the scope
of Section 24 and Section 26 of the said Act. 3
Filing of written statement

The proceeding under Section 24 of the Act have an important
bearing with regard to the rights of the defending spouse. Not only the
provisions of Section 24 of the Act permit grant of maintenance pendente
lite, but also it permits the Court to make an order with regard to
necessary expenses of the proceedings. In a given case without provision
for the necessary expenses of the proceedings, it would be impracticable
to insist upon the defending spouses even a file a written statement. The
trial Court, which is moved by filing the application is bound to decide
the application with regard the maintenance and the expenses. 4
The wife is not bound to file the written statement before moving
the court for grant of maintenance pendente lite and expenses of the
proceedings. The whole object of awarding expenses of proceedings is to
enable the party to fight the case. 5
1 Rajendra Kumar vs. Savitribai, I (1992) DMC 567 MP.

2 Sulaxmi Bai vs. Karre Sridhar, I (1993) DMC 473 AP.
3 Kartarchand Dulliram Jain vs. Taravati Kartarchand Jai, I (1982)
DMC 97 Bombay.
4 Meena @ Pratibha Deshpande vs. Prakash Shriniwas Deshpande,
II (1983) DMC 227 Bombay: AIR 1983 Bom 409: 1983 Mah LJ 821:
1983 Hindu LR 692.
5 Jagdish vs. Hari Singh, II (1984) DMC 366 Delhi.
The Calcutta High Court has also held that it is not open to the
learned Judge under the statute, as it stands, or, under the relevant law,
to impose a condition on an applicant for alimony that her said
application will not be heard unless she files her written statement. The
statute nowhere permits such a course, which would be opposed to the
equities of the instant case. 1
Form of order
An order which does not contain either the facts or the grounds
on which it is based is no order in the eye of law. 2
When the order is not supported by any reason and does not
discuss the pros and cons of the rival versions of the parties relating to
the quantum of income of the husband, the same is liable to be set aside. 3
Forum of appeal
In respect of Madras City Civil Court it has been held that under
section 4 of the Madras City Civil Court Act, the City Civil Court shall
consist of the Principal Judge and such number of Additional or
Assistant Judges as the State Government may from time to time appoint,
and subject to the provisions of Section 15, each of the Judges may
exercise all or any of the powers conferred on the court by this Act or
any other law for the time being in force. By virtue of this provision,
even without a notification by the Government, any Judge of the City
Civil Court, whether he be the Principal Judge or the Additional Judges
or the Assistant Judge, would be competent to entertain an application
under the Hindu Marriage Act. But the right of appeal from the order
passed by a Judge of the City Civil Court would be governed by Section
15 of the Act. Had the petition been disposed of either by the Principles
Judge of the City Civil Court, or by the Additional Judge there of, an
appeal would lie straightway to the High Court. if, on the other hand, it
is disposed of in this case, by an Assistant Judge of the City Civil Court
an appeal shall lie only to the Principles Judge, especially in a
proceeding where the amount or value of the subject-matter does not
exceed Rs. 5000. 4
1 Latika Ghosh vs. Nirmal Kumar Ghosh, AIR 1968 Calcutta 68:.
2 Shakuntala vs. Amar Nath, AIR 1978 P&H 32: 79 Pun LR 405(1):
1977 Hindu LR 658.
3 Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383.
4 B. Balaji Singh vs. B. Raj Kumari, AIR 1972 Madras 278: 85 Mad
LW 16: (1972) 2 Mad LJ 53.
Maintenance pendente lite—Jurisdiction of Family Court 87
Grant in Revision
The Hindu Marriage Act, 1955 does not directly provide for an
appeal or a revision from orders passed in proceedings under it. Section
21 of the Act provides that subject to the other provisions contained in
the Act and of the rules made by the High Court all proceedings under
the Act shall be regulated, as far as may be, by the Code of Criminal
Procedure, 1908. Section 28 provides that all decrees and orders made by
the Court in any proceeding under this Act shall be enforced in like
manner as the decrees and orders of the Court made in the exercise of its
original civil jurisdiction are enforced, and may be appealed from under
any law for the time being in force. Appeals from decrees and orders
made under the Act lie under the Code of Civil Procedure. Likewise,
revisions also lie against orders made in proceedings under the Act under
the Code of Civil Procedure. It is not disputed and there is good
authority for the same that relief under Section 24 can be granted in an
appeal from a decrees or order passed under the Act. I can see no reason
why then relief under Section 24 cannot be granted in a revision against
an order passed in a proceeding under the Act. The words “in any
proceeding under this Act” have been used in a wider sense to include all
proceedings arising out of orders passed in petitioner filed under the Act.
To hold otherwise would defeat the very purpose of Section 24.
Therefore, it is competent for High Court to grant relief on an
application under Section 24 even in a revision filed under Section 115,
Civil Procedure Code, against an order passed in proceedings under the
Act. 1
Independent income of wife

The jurisdiction to pass an order under Section 24 of the Hindu
Marriage Act, 1955 arises as soon as any proceedings are instituted
under the Act. The condition for the exercise of jurisdiction under this
section is that the applicant should not have any independent income
sufficient for her or his support or necessary expenses of the
proceedings. If the said condition is satisfied, the court has jurisdiction
and power to order the opposite party to pay expenses of the proceedings
and/or monthly maintenance of such sum as may be found reasonable.
Under the provision the sufficiency of independent income is the basis
for holding whether it is sufficient for her maintenance and expenses. 2
1 Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110.
2 Arjun Dev vs. Jai Kumar, II (1983) DMC 387 Delhi.
Jurisdiction of Family Court

The jurisdiction exercised by the Family Court under Section
7(2)(a) of the Family Court Act is the one exercisable by a Judicial
Magistrate I Class under Criminal Procedure Code. Wherever a Family
Court is established for any area, the jurisdiction of Judicial Magistrate I
Class having territorial jurisdiction over that area ceases and the Family
Court is entitled to exercise the said jurisdiction. No doubt under-Section
7(2)(a) of the Family Court Act, what is exercised by the Family Court is
the jurisdiction exercisable by the Magistrate under Chapter IX of the
Code of Criminal Procedure, 1973. Nevertheless it is not a Criminal
Court. It is a Civil Court. There is an inherent jurisdiction in a Civil
Court to pass ex parte orders and ex parte interim orders in aid of the
main relief in order to protect the interest of the party who approaches
the Court and/or to protect the subject matter of the suit, in order to
ensure that the relief, which the party will be granted in the suit or a
proceeding in not rendered infructuous. Thus in aid of the final relief, an
interim ex parte order can granted. That it is so cannot at all be doubted.
In the absence of such power the very jurisdiction to pass final order in
many cases would be rendered ineffective. When the Court has
jurisdiction to pass final order, the power to pass interim order stems
from the very power to pass final order. Such a power is necessarily
concomitant of the power to order maintenance. In the absence of such a
power jurisdiction will not be meaningful and effective. A person
approaches the Court for maintenance because he or she as the case may
be is not in a position to maintain himself or herself. If such a person is
required or made to wait for a considerable time and he has to be told
only after a lapse of considerable period that he or she is entitled to
certain amount of maintenance, how such a person could carry and live
to know the decision of the Court which may take place in some cases
several years. Such a situation would either result in miscarriage of
justice of failure of justice. An interim order can also be modified,
dissolved or vacated after hearing the respondent. Even the final order
can be altered in the circumstances stated in Section 127 of the Criminal
Procedure Code. It is not possible to hold that the Court has no power to
revise the interim order. That being the position, the fact that Section
125 of the Criminal Procedure Code does not specifically provide for
revision of the interim order, cannot be of any relevance. Further when it
is the Court, whether Criminal or Civil, that exercises the jurisdiction,
every details of the procedure need not be provided. The procedure
consistent with justice and actuated by exigencies of the situation can he
adopted even if there is no specific provision is provided in the statute
governing or conferring the jurisdiction to award maintenance. In
addition to this it is not the Criminal Court that exercises the
Maintenance pendente lite—Letters patent appeal 89
jurisdiction. It is a Civil Court that exercise the jurisdiction exercisable

by the Court of the Judicial Magistrate I Class. As a matter of fact,
Chapter IX of the Criminal Procedure Code does not relate to any
criminal matter and it is certainly not punitive. It deals with civil
liabilities only. In order to ensure expeditious decision so that a person
in need of maintenance is able to get it within a short period, the subject
of maintenance of wives, children and parents in included in the
Criminal Procedure Code. The Judicial Magistrate I Class and the Family
Court exercising jurisdiction under Section 125 of the Criminal
Procedure Code in the light of the provisions contained in Section
7(2)(a) of the Family Court Act have jurisdiction to pass an order
directing payment of maintenance pending final disposal of the petition
filed under Section 125 of Criminal Procedure Code. 1
Jurisdictional issue
The wife is entitled to have her application under Section 24 for
award of expenses to be considered before the issue of jurisdiction is
decided. She is entitled to have her expenses for the hearing on the
question of jurisdiction. 2
Justification for living separately

Whether the conduct of the husband in entering into an agreement
with the purchasers of the house directing them to get his wife evicted
from the house would amount to “a cause justifying her living separate.”
The husband ought not to have exposed his wife to an action by third
parties. His thoughtless action has inflicted a deep, wound in her. That is
a justifying cause for the wife to live separately from him. She had also
expressed before the court an apprehension that she would be physically
harmed if she lives with her husband. Hence, on the facts of this case, it
was held that the wife is entitled to live separately and claim
maintenance from her husband. 3
Letters patent appeal

The view taken by the Bombay High Court is that the
maintenance pendente lite under Section 24 of the Hindu Marriage Act,
1955, raises controversy independently of the suit and decision thereon
concludes controversy finally between parties and as such letters patent
appeal is maintainable. 4
1 G.L. Jagadish vs. Shamantha Kumari, I (1990) DMC 552 Kar.

2 Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110.
3 Meera Nireshwalia vs. Nireshwalia, AIR 1994 Madras 168 (DB).
4 Dinesh vs. Usha, AIR 1979 Bom. 173
Litigation Expenses
Normally, expenses of the proceeding would include
remuneration to the Lawyer, court-fees, stamp and paper, clerical
expenses, cost of stationeries, expenses to be incurred for journey from
the place of residence for instructing the lawyer and attending the court
for summoning the witnesses to depose in court and their expenses and
for obtaining and proceeding and documents in support. Besides these
normal expenses, there may be special nature of expenses which can also
be considered on the availability of materials on record. But when no
material is available on record, there is no scope for the trial court to
arbitrarily fix the expenses of the proceeding. 1
Meaning of “Maintenance”
Heading of Section 24 of the Hindu Marriage Act, 1955 is
“Maintenance pendente lite and expenses of proceedings”. The section,
however, does not use the word “maintenance”, but it appears that the
words “support” and “maintenance” are synonymous. “Support” means
“to provide money for a person to live on”, like “he supports a family” or
“he supports his old mother”. Maintenance is “an act of meaning”, i.e. to
support with money. For example, “he is too poor to maintain his
family”. 2
Meaning of support
Section 24 of Hindu Marriage Act, 1955 uses both terms,
“Maintenance” in the margin and “Support” in the body of the section.
The word “support” is doubtless one of the most elastic in the language.
“Maintenance” means the act of maintaining, and denotes the regular
supply of food, clothing and lodging, the provisions of the necessaries
and the conveniences of life. These will in each case depend in part on
the standing of the parties, their wealth and the environment to which
they in their married state have been accustomed, as every case will be
different and no case may be decided except upon its particular facts. 3
Section 24 of the Hindu Marriage Act, 1955 vests a wide
discretion in a Court in the matter of fixation of pendente lite
1 Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa;

Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984)
DMC 11 Bombay; V. Chandra vs. S. Venugopal, II (1984) DMC 72
Kerala.
2 Pardeep Kumar Kapoor vs. shaailja Kapoor, AIR 1989 Delhi 10.
Maintenance pendente lite—Multiple remedies 91
maintenance and costs of the proceedings. The discretion, however, has

to be exercised judicially. If there is no enabling provision in the Act for
changing such an order by the Court, there is at the same time no
disabling provisions either and, therefore, the Court can in appropriate
case exercise its inherent powers to vary an order of maintenance
provided there is a change in circumstances justifying variation of the
order. If that were not so, it may lead to manifest injustice in some cases,
for example, at the time of granting of maintenance the other spouse may
be having a substantial income and after sometime if that income were to
be lost by change of fortune or on account of some accidental causes
then the continuance of the same maintenance may result in hardship to
the other spouse who is to pay the maintenance. Therefore in an
appropriate case the Court should be able to exercise its inherent powers
under Section 151 Civil Procedure Code. 1
An application under Section 24 of the Hindu Marriage Act for
maintenance pendente lite and litigation expenses was ordered to be
listed for hearing alongwith the main case. When there is no averment,
least the proof, in the application made by her that the income of the
husband-respondent increased after she was allowed maintenance by the
Trial Court, she cannot get beyond what was granted to her and the
children by the Trial Court. 2
Multiple remedies
An order under Section 125 of the Code for maintenance and an
order under Section 24 of the Hindu Marriage Act, are distinct orders in
separate proceedings. It is not open for Court under Section 125 to grant
set off any amount paid by the husband to the wife or deposited in any
Court against the substantive order passed under Section 125 of the
Code. Order under Section 24 of the Hindu Marriage Act is for interim
alimony which would terminate on termination of the proceedings. Order
under Section 125 of the Code is substantive order which can be
terminated or altered only in the light of the provisions under Section
125(3) or under Section 127 of the Code. Mere passing of an order under
Section 24 of the Hindu Marriage Act for interim alimony would not
operate as set off against the order of maintenance under Section 125 of
the Code. There can be no difficulty on the part of the wife for pursuing
remedies under both the provision simultaneously.
1 Devki vs. Purshotam Kewalia, AIR 1973 Rajasthan 2: 1972 WLN

750.
2 Parveen Bala @ Veena vs. Jagdish Rai, I (1994) DMC 319 P&H.
The nature of the respective case in both these proceedings are

different. Under Section 24 of the Hindu Marriage Act, the concerned
spouse has only to show that or she has no independent source of income
sufficient for his or her maintenance. Once this is shown, interim
alimony can be awarded, keeping in mind the economic status and
conditions of the respective parties. While in so far as the provision
under Section 125 of the Code are concerned only one spouse, namely,
the wife would be entitled to maintenance. She can be awarded
maintenance if she can show that she no independent sources of income
of her own. Of course, she has to show that she is refused and neglected
maintenance by her husband and her husband has sufficient means to
maintain her. In the facts and circumstances both the proceedings could
be pursued by the wife and there is no ban or bar in any one of the
provisions unlike provision under Section 10 of the Civil Procedure
Code, whereby, subsequent proceedings can be stayed if conditions
under Section 10 are established. 1
Necessity of affidavit
Omission to comply with the requirements of rules provided for
presentation of plaints like absence of verification, does not affect
jurisdiction of the Court. Therefore, absence of affidavit of the applicant
in her application for interim maintenance does not affect the initial
jurisdiction of the Court. With these observations the wife was grant
further opportunity to regularize the matter by giving an affidavit in
support of her application. 2
Necessity of reconciliation
An order passed under Section 24 of the Hindu Marriage Act,
1955, could not be termed as illegal only because the court did not make
any endeavour to bring about a reconciliation between the parties. The
provision of Section 23(2) are not absolute in nature. While casting a
duty upon the court to make every endeavour to bring about
reconciliation between the parties a discretion is left to the Court, by the
use of the qualifying phrase, ‘where it is possible to do consistently with
the nature and circumstances of the case’. Similar provision is made in
Order XXXII-A of Code of Civil Procedure for the suits relating to
matters concerning family. An attempt to bring about a reconciliation is
always laudable but failure to do so, before granting maintenance
pendente lite, will not vitiate the order, passed under Section 24 of the
1 Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani, I

(1993) DMC 544 Guj.
2 Bhalu Naik vs. Hemo Naikant, AIR 1969 Orissa 236: 35 Cut LT
532.
Maintenance pendente lite—Object of Hindu Adoptions & Maintenance
Act 93
Act. To say the least, Section 24 is independent of other provisions of

the Act, and is not controlled by Section 23. The order passed under
Section 24 is interim in nature and does not amount to final
determination of the right or of the case. This incidental and interim
direction to pay maintenance pendente lite is not a final and
comprehensive adjudication of the rights of the parties within the
contemplation of Section 23 of the Act. 1
Necessity to grant maintenance

The dismissal of the wife’s application under Section 24 is not
justified and so long as that application was not decided, the suit could
not proceed. The matrimonial jurisdiction is in certain matters different
from ordinary civil jurisdiction. 2
Non working husband

In one case where husband claimed maintenance from wife and
it was pleaded that the husband was not working it was held that the
husband was mentally and physically well bodied person. He also had a
skill of a particular business. There was no handicap for him to earn
bare minimum to support his livelihood. Merely because his business is
closed, it cannot be held that he has no source to earn. Since the wife is
in the employment, the husband cannot make himself wholly dependent
on her income through a device of Section 24 of the Act. In absence of
any handicap or impediment to earn, to grant maintenance to such able
bodied person equipped with skill would promote idleness. It is
opposed to spirit of Section 24 of the Act. The trial Court was wholly
without justification in awarding maintenance in favour of the non-
working husband. 3
Non-compliance
The effect of non-compliance of the order passed on the
application under Section 24 of the Hindu Marriage Act for the grant of
maintenance pendente lite is that the defence is to be struck off. 4
1 Dilipbhai Chhanganlal Patel vs. State of Maharashtra, AIR 1983

Bombay 128: 1983 ACJ 192.
2 Ram Rati vs. Mata Prasad, I (1983) DMC 376 All.
3 Kanchan vs. Kamalendra Kamalakar, I (1993) DMC 288 Bom.
4 Sadhana Deepak Naik vs. Deepak Laxman Naik, I (1993) DMC 112
Bom.
Object of Hindu Adoptions & Maintenance Act

These provisions have purported to give effect to trends of what
is claimed to be progressive thought in this country of placing woman or
a par with men in the matter of their marital rights. But divorce is not
always an efficacious remedy, for the right to obtain it may be lost by
laches, delay or condonation. The Legislature, evidently thought that it
should be open to the wife to claim to live separately from her husband,
in case he has got another wife living. Where, therefore, the wife does
not want to seek divorce or, where she could not, by reason of some
conduct on her part, obtain such divorce or where she only desires to live
separately from her husband, she could by applying under Section 18(2)
of Act 78 of 1958, claim from him maintenance and provision for
separate residence. If that be the true principle behind Section 18(2) as
indeed we conceive it to be, its operation cannot be restricted to marriage
which took place subsequent to the year 1946. 1
Order under Criminal Procedure Code, 1973

In such case keeping in view the status of the parties, the income
of the husband and the standard of life to which parties are used to it was
held that the fixation of maintenance under the Code of Code Criminal
Procedure, can be taken note of, for assessing the maintenance pendente
lite under Section 24 but the same cannot be the sole basis as under the
Criminal Procedure Code, maximum maintenance which can be allowed
is Rs. 500/-. So the criminal Courts grant maintenance keeping in view
the maximum limit of maintenance which can be granted in proceedings
under Section 125 of the Code of Criminal Procedure can be treated as
bar for granting higher amount. 2
Pendency of proceedings
A proceeding under Order 9 Rule 13 of the Civil Procedure Code
is a proceeding under the provisions of the Hindu Marriage Act if the
proceeding is initiated for setting aside a decree obtained ex parte in a
proceeding under the said Act. Accordingly, an application under Section
24 of the Hindu Marriage Act is maintainable in such a proceeding. If
such an application is filed it is open to the Court to decide the same on
merit but it cannot be held that such application cannot be disposed of
1 A. Annamai Mudaliar vs. Perumayee Ammal, AIR 1965 Madras 139

(DB): ILR (1964) 1 Mad 845: 77 Mad LW 548: (1965) 1 Mad LJ 122.
2 Savita Aggarwal vs. R.C. Aggarwal, I (1991) DMC 18 P&H.
Maintenance pendente lite—Pendency of proceedings 95
till the proceedings under Order 9 Rule 13 terminates and the decree is
set aside. 1
This question was also considered with slightly different line of
reasoning by Punjab and Haryana High Court 2 with following
observations:
‘The challenge to the impugned order was founded upon the
wholly untenable premises that an application under O. 9, R. 13
of the Code of Civil Procedure for setting aside an ex parte
decree for divorce, could not be taken to be proceedings under the
Act so as to extend to it the applicability of the provisions of
Section 24 of the Act. The argument being that while seeking and
obtaining a decree for divorce, be it ex parte or after contest,
would be “proceedings” under the Act, an application for setting
aside such a decree would be one under the Code of Civil
Procedure and thus not one under the Act, and therefore, the
provisions of Section 24 of the Act, would not be available in
respect thereof. There is a patent fallacy in this contention
inasmuch as, the provisions of the Code of Civil Procedure, in the
Hindu Marriage Act, 1955, are there merely to regulate the
proceedings therein and not as substantive law separate and
distinct from it, as would be apparent from a plain reading of
Section 21 of the Act.
Further, the object and rationale of Section 24 of the Hindu
Marriage Act, 1955 is to provide against lack of financial means
operating to the detriment of a party to proceedings under the
Act. In other words, to obviate against the financial handicap of a
party to the litigation. Seen from his angle too, the provisions of
Section 24 of the Act cannot be construed to take an application
for setting aside of an ex parte decree under the Act as outside
the purview thereof. To hold otherwise, could mean grave
prejudice to an innocent party against whom an ex parte decree
has been wrongly passed inasmuch as lacking the financial means
to challenge such an ex parte decree, it may be constrained to
suffer it. Nothing could have been further from the intention of
the legislature in this behalf.’
Section 21 of the Hindu Marriage Act, engrafts the relevant
provisions of Code of Civil Procedure into the Act for regulating the
procedure, and independently of Section 21 of the Civil Procedure Code
would have no application. Therefore, though the procedure for setting
aside the ex parte decree would be regulated by the Civil Procedure
1 Dipti Ghosh vs. Swapan Kumar Ghosh, I (1991) DMC 135

Calcutta.
2 Madan lal vs. Meena, AIR 1988 P&H 31: (1986) 90 Pun LR 601:
(1986) 2 Hindu LR 344: (1987) 3 Cur LJ (Civ & Cri) 505: ILR (1987)
2 P&H 102: 1988 Marriage LJ 341.
Code it would only be a proceeding under the Act by virtue of Section 21

of the Act. 1
The court can grant maintenance pendente lite and litigation
expenses in any proceedings under the Act. The proceedings in an
application under Section 25 are proceedings under the Act. The object
of enacting Section 24 is that an indigent spouse not suffer during the
pendency of the proceedings because of his/her poverty. In case it is held
that a spouse cannot make an application under Section 24 in
proceedings under Section 25 of the Act, he/she may not be able to
prosecute the proceedings under the latter section. The consequence may
be that he/she may have to starve throughout the life. That could not be
the intention of the Legislature. Therefore, a spouse can file application
under Section 24 in proceedings under Section 25. 2
In view of the fact that the provision for permanent alimony is
incidental to the granting of a decree for divorce etc. and the proceedings
under Section 25 are in the nature of continuation of the main
proceedings, it would be just to hold that proceedings under Section 25
are ‘proceedings under the Act’ in the context of the application of
Section 24 thereto. 3
Any proceeding under this Act’ appearing in Section 24 will
cover the proceedings under Section 25 thereof. Section 25
contemplates that an order for permanent alimony can be made at the
time of the passing of any decree under the Act or any time thereafter.
Now, if a spouse has to make an application after any decree under the
Act has been passed and has no sufficient means of his own. Such
spouse has to be provided for prosecuting the application for
permanent alimony when the other spouse opposes any grant thereof.
Any other construction will be narrow and will lead to frustration of
the provision. 4
Postponement of Application
The jurisdiction to pass an order under Section 24 of the Hindu
Marriage Act, 1955 arises as soon as any proceedings are instituted
1 Hemaraj Shamrao Umredkar vs. Leela, AIR 1989 Bombay 146:

(1988) 2 DMC 325: (1988) 2 Cur CC 488: (1988) 2 Hindu LR 583:
(1988) Mat LR 315.
2 Krishan Lal vs. Kamlesh Rani, AIR 1989 NOC 154 (P&H):
93 Pun LR 361.
3 Chuni Lal Gulati vs. Krishana Rani, AIR 1983 P&H 241: 1983
Hindu LR 24.
4 Yogeshwar Prasad vs. Jyoti Rani, AIR 1981 Delhi 99.
Maintenance pendente lite—Power of Appellate Court 97
under the Act in the court and lasts so long as the proceedings are
pending. The conditions circumscribing the exercise of jurisdiction are
that the applicant should not have any independent income sufficient for
her or his support or necessary expenses of the proceedings. If the said
condition are satisfied, the Court has jurisdiction and power to order the
opposite party to pay expenses of the proceedings and monthly
maintenance of such sum as may be found reasonable by the court. This
provision is wider and different from the provisions contained in Section
25 of the Act, which deals with permanent alimony and maintenance.
The object of Section 24 of the Act is to provide a monthly income and
expenses of the litigation to an indigent spouse to enable it to prosecute
or defend the proceedings under the Act and the law sees that nobody is
disabled from prosecuting or defending the matrimonial case by
starvation or lacks of funds. 1
Therefore when the question of facts between the parties are
seriously disputed and it will take some time to be decided and in fact,
this is a major issue disputing the marriage had been raised by the
respondent which could, be decided along with the whole petition and
the trial cannot take place piecemeal, it was held that even to fight out
the aforesaid issue, the appellant is entitled to a decision of her
application under Section 24 of the Act and the Court below had acted
with material irregularity in postponing the orders on this application till
the decision of the issue of the legality of the marriage which will
virtually terminate the proceedings. 2
Power of Appellate Court

A reading of Section 25 and 26 of the Hindu Marriage Act makes
it abundantly clear that pending appeal, the Court has got power to make
such interim orders and also make such provisions in the decree, with
regard to the maintenance of the wife and children as well as for the
education of the children and their expenses, without insisting on
separate application. After the appeal is disposed of, at times on
application by the party, similar directions or provisions in the decree
can also me made. Thus, the maintenance granted earlier pending the
appeal can be directed to be paid even after the disposal of the appeal,
depending on the circumstances of the case, and the said direction can
even form a part of the decree. 3
1 Arti Singh vs. Lt. Co. Kanwar Pal, AIR 1977 Delhi 76: 1976 Hindu
LR 646: (1976) 12 Delhi LT 169: (1976) 78 Pun LR (D) 268.
2 Arti Singh vs. Lt. Co. Kanwar Pal, ibid.
3 Chigurupati Sambasiva Rao vs. Chigurupati Vijayalakshmi,
1994(1) CCC 458 (AP).
On the question of maintainability of application for maintenance

during the appeal it was held that whatever way the problem is
approached, the answer to the question must be in the affirmative.
Firstly, in the words of the relevant sections of the Act, there is not only
no bar of the maintainability of such an application but there are
sufficient indications in support of it. Secondly, in the interest of broad
justice between the parties, the Court has a discretion to continue the
payment of the maintenance, during the pendency of the cause in appeal.
When the appeal does not appear to be a vexatious one. Thirdly, the
cause becomes pending as the husband appellant does not only not obey
the decree of the Court below but seeks to stay the operation of the
judgment and decree appealed against, as well as of all further
proceedings for permanent alimony in the Court below. Fourthly, the
relief in the nature of alimony is really a relief which is incidental to the
passing of the decree. Fifthly, for the present purpose a decree for nullity
stands on the same footing as a decree for dissolution of marriage.
Sixthly and lastly, the respondent does not become a maiden or another
man’s wife so long the appeal remains pending. 1
The words “During the proceedings” in Section 24 of Hindu
Marriage Act, 1955 may in the first flush show that the party is entitled
to claim maintenance only during the pendency of the proceedings, but
on a close scrutiny these words clearly apply not only to the proceedings
before the trial court but also during the pendency of proceedings in
appeal as well as during the period between the termination of
proceedings in the trial court and filing of appeal. The appeal is only
continuation of the suit of proceedings in the trial court, without there
being a suit or proceedings in the trial court there cannot be an appeal,
therefore the proceedings in the appeal being continuation of the
proceedings, the party is entitled to claim maintenance during the period
between the date of the decree and the date of filling of the appeal.
Merely because the party is unable to file an appeal within a particular
period and that too after deducting the time for obtaining the copies, it
does not mean that the party is not entitled to claim maintenance during
that period. If this interpretation is accepted, it would be defeating the
purpose of the provisions enabling a party to claim interim maintenance
pending proceedings under this Act. ‘Proceedings’ means proceedings
under the Act and it is referable to the Act only. 2
It is the legal obligation of the husband to maintain his wife.
When the law provides for pendente lite maintenance it does not mean
1 Arya Kumar Bal vs. Ila Bal, AIR 1968 Calcutta 276.
2 M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP).
Maintenance pendente lite—Power of Appellate Court 99
that the maintenance amount is to be paid only during the continuation of

the proceeding. The general duty of maintaining wife, particularly when
she has no means of her livelihood is merely re-emphasized by such a
provision by pendente lite maintenance. Therefore, even for the period of
pendency of appeal the husband is bound to pay the maintenance. Even
otherwise the appeal is a continuation of the original proceeding and
hence the husband is liable to pay the maintenance for the period. 1
The terms ‘proceeding’ and ‘court’ are not defined in the section.
Those terms, would, having regard to the object of the enactment and the
setting in which they are employed, take in respectively the appeal and
the appellate court. That a petition for interim maintenance could be
filed in the appellate court was the view taken by the Rajasthan High
Court in Mukan Kanwar vs. Ajit Chand. 2 Another decision of the
Himachal Pradesh High Court adopting that view is reported as Smt.
Sarve Devi vs. Lakashmi 3 wherein the court had granted interim
maintenance during the pendency of appeal before Court. Thus section
24 would permit the appellate Court to award maintenance to a wife or
minor children during the pendente lite of the appeal from an order in
proceedings initiated under the Act. 4
Section 30, as its language suggests, empowers the Court to grant
maintenance and litigation expenses during the pendency of the
proceeding in that Court. It does not restrict its application to the
proceeding before the trial Court alone, but applies with equal force to
the proceeding before the appellate Court as well. It, however, leaves no
room for doubt that the Court empowered to grant maintenance is
empowered to do so for that period only during which proceedings in the
main case remain pending before it, and not for the period subsequent
thereto. The order of the trial Court passed by it under Section 30 cannot,
therefore, remain effective, after the main proceeding before it comes to
an end. If the aggrieved party to the main petition challenges the trial
Court’s decree or order in appeal, a fresh application under Section 30 by
the party seeking relief under that Section, has to be made by it to the
appellate Court. The order passed by the trial Court under this Section
cannot survive the decision of the main petition by it on the principle
that an appeal is merely a continuation of the original lis, meant for its
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L
1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam
Chaturvedi, II (1984) DMC 53 Delhi.
2 AIR 1961 Rajasthan 51.
3 AIR 1984 NOC 138 (HP).
4 Thankamma vs. Kuttan, II (1984) DMC 440, Kerala.
rehearing. The object behind the aforesaid principle is two fold: firstly,
to see whether the judgment given by the trial court was right when it
was given: and secondly, to mould the relief by taking into account the
events that have happened after the judgment came to be passed by the
trial Court. A proceeding under Section 30 is an independent proceeding,
which has nothing to do with the merits of the main case. Correctness of
the judgment of the trial Court in the main case with reference to the
point of time when it was passed cannot be, therefore, determined in
appeal in the light of the findings recorded by it in the application under
Section 30. Nor has any subsequent change in the financial position of
the parties anything to do with the moulding of the relief in the main
petition come to an end, right of the party to enforce the order passed in
its favour under S. 30 also ceases, in the sense, that it cannot claim
maintenance for a period posterior to the decision of the main petition.
This, however, does not mean that even if proceedings in the main
petition have come to an end, the party in whose favour an order under
Section 30 have been passed, cannot execute the same for recovery of the
amount due till the date of the final decision of the main petition. Nor
does the decision of the main petition take away the power of the Court
to dispose of on merits the application made to it under Section 30
during the pendency of the main proceeding. 1 There is amply authority
for the aforesaid view. 2
Power of Court
The ground of maintenance pendente lite and expenses of the
proceeding does not depend on merits of the case nor the jurisdiction of the
Court is controlled by the defences raised by the respondent which is the
substantive matter before the Court. It is, however, circumscribed only of
the condition laid down in Section 24 of Hindu Marriage Act, 1955 itself as
regards the sufficiency or otherwise, of the income of the party applying for
the benefit of Section 24. In a case where the factum of marriage is
acknowledgement or proved the allowance necessarily follows subject to the
discretion of the Court in the matter having regard to the means of the
parties. The subsequent dismissal of the substantive or main petition does
not absolve a party from the liability already incurred under an order made
under Section 24. Normally, the Court would not be in a position to judge
the merits of the rival contentions of the parties when deciding an
application for maintenance pendente lite and would not allow its discretion
1 Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
2 Mukan Kanwar vs. Ajit Chand, AIR 1961 Raj 51; Tarlochan Singh
vs. Smt. Mohinder Kaur; AIR 1963 Pun. 249 Amrik Singh vs. Smt.
Narinder Kaur; AIR 1979 Punj & Har. 211. and B.M. Muniratnam
Naidu vs. Shantamma, AIR 1971 Mys. 25.
Maintenance pendente lite—Procedure for disposal of application 101
to be fettered by the nature of the allegations made by the parties in their

respective pleading and, therefore, the Court is not supposed to examine the
merits and demerits of the main petition while deciding the application
under Section 24. The question, therefore, that the petition under Section 9
of the Act is maintainable or not or the question, whether the Court has
jurisdiction to entertain and try the same, would not be a determining factor
in passing an order under Section 24. If the wife is made to defend herself
in any proceedings under the Act, for example, restitution of conjugal
rights, judicial separation, divorce or nullity of void and voidable marriage,
the benefit of provisions of Section 24 may be extended if the wife had no
independent income sufficient for her support and the necessary expenses of
the proceedings, irrespective of the fact that the Court ultimately found that
it had no jurisdiction to entertain and try the substantive petition which may
ultimately result a dismissal on that Court.1
In one case the proceedings started on an application under
Section 25 of the Act and not by a suit where under maintenance could
be claimed in accordance with the provisions of the Hindu Adoptions &
Maintenance Act, 1956. It was held that nevertheless the discretion under
Section 25 of the Act vested in a Court which has awarded a decree of
conjugal rights or any other decree under the Act is wider. Such a
discretion is not controlled by the provisions of the Hindu Adoptions &
Maintenance Act, 1956. Nonetheless the principles governing the award
of maintenance enshrined in Section 23 of the Hindu Adoptions &
Maintenance Act, 1956 could usefully be kept in mind by the Court in
dealing with an application under Section 25 of the Act. 2
Procedure for disposal of application

It is noteworthy that the main petition under Section 10 of the
Indian Divorce Act is not required to be supported by an affidavit.
Therefore it was held that the idea in enacting the Rule 801 (b) requiring
the affidavit seems to be that the matter arising under Section 24 of the
Act has, by and large to be decided on the basis of affidavits. This is,
however, not to say that no evidence ever should be recorded. In an
appropriate case where the courts finds that the matter cannot be
disposed of properly on the basis of affidavits alone then it may proceed
to record evidence and then decide the matter. The section vests and the
Court with the widest discretion regarding the award of pendente lite
maintenance and costs of the proceedings, but the discretion has to be
exercised judicially. One may draw an analogy from the way the Courts
1 Kamlesh vs. Virendra Kumar Uiks, I (1992) DMC 67 MP.

2 Seeta Ram vs. Phooli, AIR 1972 Raj 313: 1972 WLN 390: 1972 Raj
LW 398: 1972 Ren CR 865.
decide the applications for grant of temporary injunctions and the like.
Such matters too are normally decided on affidavits. The Section lays
down when an order for maintenance pendente lite and the expenses can
be passed. Firstly, the spouse concerned should have no independent
income sufficient for her or his support and the necessary expenses of
the proceedings and then secondly for passing an appropriate order the
Court should have regard; (1) to the petitioner’s own income, and (2) to
the income of the respondent, and then it should award such sum as may
seem to the Court reasonable. A passing of an order under this section
will necessarily turn on the circumstances of each case and no fixed rules
can be expected on the subject. In cases of ordinary income a rough
working rule has been adopted by some courts on the analogy of other
enactments, such as the Indian Divorce Act, but that is not a hidebound
formula though the working rule may be of some use in fixing the
amount of interim maintenance. In cases of substantial income the court
need not have regard to any notional rule in exercising its discretion in
the matter regarding what proportion of the income of one spouse has to
be awarded by way of maintenance to be other. 1
In another case arising out of Hindu Marriage Act, 1955 it was
held that if the averments of the petitioner contained in her affidavit are
not considered enough, she should be afforded an opportunity to give
supplementary affidavit or affidavits on any point required by the Court or
if the Court so required even to lead evidence in the course of a summary
inquiry, at the end of which proper order should have been passed. 2
Proceeding for restitution of conjugal rights

The terms of Section 24 do not lend support of the claim of the
revision petitioner that no order for interim maintenance could be passed
when the husband has filed an application for restitution of conjugal
right. Further it is significant to note that the amount of interim
maintenance that one spouse may be ordered to pay the other must be
such as appears reasonable to the Court in the exercise of its discretion
and when this discretion has been exercised not arbitrarily but properly,
the husband cannot have any grievance. 3
Procedure of enquiry
The Matrimonial Court is to follow the provisions of Section 21
of Hindu Marriage Act, 1955 which requires the Matrimonial Court to
adhere to the provisions of Code of Civil Procedure as far as may be
1 Vinay Kumar vs. Purnima Devi, AIR 1973 Raj 32: 1972 WLN 698.
2 Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383.
3 Gansan vs. Rasammal, AIR 1994 Madras 366.
Maintenance pendente lite—Proof of marriage 103
possible and in the interest of justice. The payment of maintenance

pendente lite and litigation expenses could, therefore, have been decided
by the Matrimonial Court on the affidavits of the parties. There is, thus,
no error of procedure. 1
The enquiry contemplated under Section 24 of the Hindu Marriage
Act, 1955 is of a summary nature and the dispute between the parties in
this regard can be resolved on the basis of affidavits filed by the parties to
the proceedings. In this case the petitioner has filed no affidavit in support
of his reply and there was nothing on record to show that he was prevented
to do so or to lead evidence in support of his case. Hence, it was held that
his grievance in this regard had no force. However, since the case had to
be remanded for fresh decision on the wife’s application under Section 24
of the Act, liberty was granted to the husband to submit counter affidavit
or to lead evidence in support of his case. 2
Proof of marriage
The object of this section is that neither party may suffer by her
without means during pendency of proceedings. Exercise of power under
this section does not appear to be dependent on the defence raised by the
opposite party. Even in cases where the factum of marriage is denied by
the opposite party the Court has jurisdiction to determine prima facie the
factum of marriage on the basis of documents and affidavits that may be
placed before the Court. The passing of an order under this section
further cannot be postponed till the final determination of the
relationship of husband and wife. If it be so the purpose of this section
would be frustrated. In a petition for restitution of conjugal rights if the
defence taken is that there was no marriage between the parties, and the
petitioner-wife has no means to support her or to conduct the legal
proceedings she would be without any remedy. In proceedings for
restitution of conjugal rights the factum and validity of marriage is
generally denied so that the party approaching the Court for relief may
be harassed and on account of harassment, such party may not pursue the
remedy. I am therefore, of the opinion that even if the factum or validity
of the marriage is denied, the Court exercising jurisdiction under the Act
has power to award maintenance and litigation expenses to the applicant
i.e. the wife or the husband after prima facie determining whether there
was marriage or not. The Court however has to be very careful and
cautious in considering the affidavits, the documents and other material
1 Siremal Burad vs.Shakuntala Devi Burad, II (1994) DMC 9 MP.

2 Nishan Singh vs. Bhupendra Kaur, II (1985) DMC 124 MP.
brought to its notice while determining the factum of marriage even

prima facie, otherwise the provision is liable to be misused. 1
In one case the non-applicant had sexual relation with claimant
and had also begotten a daughter from her. In such a situation, when
there is no answer given to the plea that the applicant was minor at the
time she was given away in marriage by her father to the non-applicant
on certain conditions, the applicant can not be deprived of maintenance
only on the ground that she is not legally wedded wife of the non-
applicant. In these circumstances of the case the applicant who alleged
that at the time of giving away in marriage to the non-applicant she was
a minor cannot be blamed for the situation and the non-applicant cannot
be allowed to take advantage of his own wrong in taking the applicant as
second wife or a concubine. The non-applicant’s acceptance of the fact
that he had relations with the applicant and a daughter was born out of
these relations should be enough at this stage of the case to ask him to
pay maintenance to the applicant. 2
It was also held that the question of enforcement of an agreement
contrary to law or opposed to public would also not arise in the case
because the applicant has alleged that when she was given away in
marriage by her father to the non-applicant she was a minor. She can not
therefore, be punished by depriving her of maintenance on the ground that
she was trying to enforce an agreement which is opposed to public policy. 3
Quantum of interim maintenance

While fixing quantum of maintenance the Court has to take into
account not only the needs of person who claim maintenance but also the
capacity, status, commitments and the obligations of person who has to
pay it. If the husband has to maintain other persons like his parents, his
own children etc. reasonable allowance for their maintenance shall have
to be made. It would be unjust to grant maintenance in an arbitrary
manner. The party who has to pay maintenance is also not to be virtually
rendered a destitute. A fair balancing all the relevant factors is to be
done by the Courts without the making an emotional approach to the
problem. The Court shall have to keep in the mind that what is to be
provided is the maintenance and it cannot have saving element in it nor
is it the purpose of the legislature to put the claimant in a luxurious
1 Jagmohan Verma (Lt.Cdr.) vs. Sunita Verma, 1983 (1) DMC 176:
1983 (4) DRJ 144: 1983 RLR 140.
2 Durga Bai vs. Mangi Lal, I (1993) DMC 174 MP.
3 Durga Bai vs. Mangi Lal, ibid.
Maintenance pendente lite—Quantum of interim maintenance 105
position. The definition of “maintenance” given by the Act makes this

position amply clear. 1
Similarly if the claimant is residing in a village where the cost of
living is comparatively cheaper than in the cities and towns, the Court
shall have to take that facts also into account. In such case it also had to
be accepted that the wife is required to stay with her parent and that she
had to undergo medical treatment as she was suffering from psychic
disease which may recur. She may have to resort to sedatives. From the
history of her ailment as narrated by the husband in his reply, it became
clear that the wife required medical treatment spread over a long period
and therefore, reasonable provision shall have to be made for her medical
treatment also. At the same time, it was also to be kept in mind that the
husband is required to maintain himself, his aged mother and two grown
up children. It was therefore held that, the income of the husband was
required to be divided into five units, and reasonable provision is
required to be made for all those who are dependent upon the husband.
Taking all the aforesaid factors into consideration the amount of
Rs. 1500/-p.m. for the wife who was residing in a village was held to be
slightly on the higher side inasmuch as the husband who resides in the
City shall have also to make provision for his aged mother and two
grown up children besides himself. Since the purpose of maintenance is
not to make the wife, in any way, richer or to put her in luxurious
condition and since the actual amount being spent by her towards
medical treatment could not be determined at this stage it was held that
the amount of Rs. 1,250/-p.m. towards maintenance would be just and
proper to the wife. 2
Courts have to steer clear of two extremes, namely, they should
not give maintenance to the wife which would keep her in luxury and
would make judicial separation profitable and also impede any future
chances of reconciliation. They should also steer clear of the other
extreme, namely penuriousness. 3
Where it is a stage of grant of interim maintenance, a reasonable
sum to be awarded towards interim maintenance pending the final
decision of the suit for maintenance. In this case it was held that the
learned trial Court had not considered that Rs. 300/- p.m. was hardly
1 Kailashchandra Guptra vs. Chamanlal Gupta, 1985 (1) Hindu Law

Reporter 411
2 Dharamsi Dahyabhai Patel vs. Devyani Dharamsi Patel, I (1993)
DMC 605 Guj.
3 Kashinath Sahu vs. Devi, AIR 1971 Orissa 295: (1971) 1 Cut WR
543.
sufficient in these days of high price of essential commodities to meet

out even one time meal expenses. Food, clothes and house are the three
basic needs of a man/woman. While arriving at a reasonable figure of
interim maintenance, the Court should have taken care of all these
requirements. In addition to this, medical expenses may also be
necessary. The amount of Rs. 300/- p.m. is not even sufficient to make it
easy for the lady, the petitioner herein to have three times tea. Normal
living cost in these days is very high. Taking into consideration the
totality of the facts of this case, it is in the interest of justice and to
provide a reasonable sum of interim maintenance to the petitioner the
respondent is directed to pay Rs. 2,000/- p.m. as interim maintenance to
the petitioner. 1
Sub-sec. (2) read with Sub-sec. (1) of Section 23 leaves the
matter of fixation of amount of maintenance to the discretion of the
Court while stressing that the position and status of the parties,
reasonable wants of the claimant, the income and the property of the
claimant and the number of person when the husband is bound to
maintain are among the factor and circumstances which must be takes
into consideration by the Court. In fixing the quantum of maintenance it
would be necessary and of primary importance to consider the overall
financial position of the husband. The words “position and status of the
parties” in Sub-sec (2) are wide enough to include the financial position
of both the parties as a matter of vital consideration in the matter. 2
While considering the aforesaid factors, and mainly question as to
what is required by the wife to maintain herself, the Court have to steer
clear of the two extremes, namely, they should not give maintenance to
the wife which would keep her in luxury and would make judicial
separation profitable and also impede any future chances of
reconciliation. They should also steer clear of the other extreme, namely,
penurious-ness, i.e., not to drive the wife in penury. 3
In another case testimony of the wife was that when she filed the
application for maintenance husband was village pradhan. He carries on
trade of grain and has monthly income of Rs. 5000/-. In her cross-
examination it was elicited that the husband has 33 bighas of land; the
three brothers have 100 bighas of land. There was no cross-examination
on the point of trade carried on by the husband. Testimony of the
husband was that he has only two acres of land yielding meagre income.
1 Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya,

AIR 2001 Gujarat 157.
2 Chandrapal vs. Harpyari, I (1993) DMC 346 All.
3 Kasind Sahu vs. Smt. Devi, AIR 1971 Orissa 295.
Maintenance pendente lite—Quantum of interim maintenance 107
He had no other sources of income. Suggestion put in his cross-

examination that he can pay maintenance of Rs.500/-per month to his
wife was denied by the husband. This was all the evidence about the
sources of income of the husband. Then there was one very important
circumstance related to the means of the husband. It was consistent
finding of the two lower Court that he married with another woman from
whom he has a child. In face of this circumstance testimony of the
husband that he has only two acres of land and has meagre income is
suppression of his tangible means of income. His status has been that of
village pradhan. He has capacity to keep another woman and beget a
child from her whom he is liable to maintain. He did not specifically
denied his trade of grain. Considering all these circumstances, testimony
of the wife that the husband has income of Rs. 5000/-per month may be
exaggeration, it was held that excluding the exaggeration the husband
cannot be expected to have income of less than Rs. 500/-per month
therefore, it was not proper to interfere in the enhancement of the
maintenance allowance of the wife to Rs. 200/-per months. 1
In one case the Court below came to the conclusion that the
husband gets Rs. 2,500 per month as income. Further, admittedly apart
from the petitioner-husband being a salaried employee, he is also owning
lands, where several crops are cultivated and income is earned therefrom.
The Court below pointed out the evidence given by P.W. 2, the Village
Administrative Office regarding the extent of the land owned by him and
the crops raised therein. He has also given details of his earnings from
the abovesaid lands and he has also produced Exs. A-1 to A-4. Onitta
and Adangal extract relating to the lands owned by the petitioner. All
these were mentioned in details in the Order of the Court below. It was
held that the Court below rightly rejected Ex. P-1 filed by the petitioner-
husband to contend that his salary was only Rs. 250/- per month, and
came the conclusion that he was earning at least Rs. 2,500/- per month.
So, taking all these into consideration, the Court held that he would be
entitled to Rs. 30,000 per year, in other words, Rs. 2,500 per month. 2
In one case the appellant had stated that he was holding the post
of Revenue Inspector and was getting a salary of Rs.. 2000/-per month.
The wife claimed maintenance pendente lite of Rs. 800/-for her self and
her daughter and in addition litigation expenses of Rs. 1000/-. On a just
and fair consideration, commensurate with the earning of the appellant it
was deemed fit to order that the husband shall pay to the wife through
Court a monthly amount of Rs. 600/- as maintenance during the
1 Chandrapal vs. Harpyari, I (1993) DMC 346 All.

2 C. Krishnan vs. Ponmudi, I (1993) DMC 502 Mad.
proceedings in the appeal i.e., from the date from which the wife
contested this appeal after service of notice of this appeal till the date of
the order and in addition a sum of Rs. 600/-as litigation expenses for
defending this appeal. 1
Quick disposal
An application under section 24 is to be quickly decided as a
summary proceeding and that it could not be made to wait until an issue
on merits was taken up for consideration. The proceeding will not cease
to be a proceeding for the purpose of section 24 of the Hindu Marriage
Act, if the proceeding was for the relief which could be granted under
the Hindu Marriage Act. 2
Reasonable amount
What Section 30 of J&K Hindu Marriage Act requires is that the
amount awarded by way of compensation should be reasonable. The
expression “reasonable” is a relative term. What may be reasonable in
one case may not be necessarily reasonable in another case.
Reasonableness of the quantum of compensation has not to be
determined by merely having regard to the petitioner’s own income and
the income of the respondent but also by having regard, as far as may be,
to the standard of life maintained by the family to which the parties
belong. The rule that is no case maintenance should be granted at a rate
or more than one-fifth of the husband’s income is not only unreasonable,
but also irrational which may some time defeat the very object of
avoiding vagrancy; the reason d’etre of Section 30 of the Act. 3
Reduction and enhancement of amount

In the changed circumstances, the power has to be implied in the
Court to reduce or change the rate of maintenance, because maintenance
to be paid is only during the proceedings. Such a power of variation of
the rate of maintenance pendente lite is to be inferred in the Court, is the
view of High Courts of Orissa and Delhi. 4
1 Ramesh Chandra vs. Padmabai, I (1992) DMC 24 MP.

2 Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay.
3 Rakesh Chandok vs. Vinod, II (1982) DMC 325 J&K.: AIR 1982
J&K 95: 1982 Srinagar LJ 127.
4 Laxmi Priya Rout v. Kama Prasad Rout, AIR 1992 Orissa 88;
Anuradha v. Santosh Nath Khanna, AIR 1976 Delhi 246: 1976
Rajdhani LR 74: (1976) 78 Pun LR (D) 53: (1976) 12 DLT 26.
Maintenance pendente lite—Right of Children 109
In case the suspension of the husband from service is revoked, it

was held that it would be open to the wife to approach the Court for
restoring the earlier rate of maintenance. 1
Refusal of maintenance to pressurise

To refuse maintenance pendente lite and expenses of litigation to
the wife and her minor child, merely to pressurise the wife to reconcile
her differences with her husband cannot, but be branded as a patent
misuse of the provision of Section 24 of the Hindu Marriage Act, 1955. 2
Resjudicata
The application filed under Section 24 of the Hindu Marriage Act
cannot be rejected merely on the ground that an application earlier filed
under Section 125, Cr.P.C. for maintenance was rejected. When the
proceedings under Section 9 of the Hindu Marriage Act are pending in
the trial Court, the wife, under Section 24 of the above Act, is entitled to
file an application for grant of maintenance of pendente lite. Therefore it
was held that the trial Court had rightly heard the matter and decided the
same on merits as the earlier decision under Section 125, Cr.P.C. is no
bar in deciding the application under Section 24 filed by the wife in the
trial Court. It was also be pointed out that the denial of factum of the
marriage by the husband was yet to be proved by him in the trial court
and merely because he has denied the factum of marriage, the right of
wife to get maintenance of pendente lite cannot come to end till the same
is finally decided by the trial court. 3
Retrospective effect
An application under Section 24 of the Act is not a suit by the
wife for maintenance under the Hindu Adoptions & Maintenance Act,
1956. Therefore, the maintenance could not have been granted prior to
the date of application under Section 24 of the Act. 4
Right of Children
In one case the trial court had before it an application only under
Section 24 of the Act for pendente lite maintenance both for the wife and
the minor child. After referring to the decisions of the other High Courts
and while upholding the grant of maintenance to minors it has been held
as under
1 Neelam vs. Kailash Bajpai, II (1994) DMC 188 MP.

2 Gurmeet Kaur vs. Gur Raj Singh, AIR 1989 P&H 223.
3 Virendra Kumar vs. Santoshi Devi, AIR 1988 Rajasthan 127 (DB).
4 Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa.
‘It is also true that Section 24, in terms, provide for pendente lite
maintenance for the spouse only and not for the children of
marriage. But Section 26 invests the Courts with full jurisdiction
to pass, from time to time, such interim order for maintenance of
minor children as the Court may deem just and proper. It should
also be noted that while Section 24 requires for its operation on
application from the spouse concerned, the provision of Section
26, so far it relates to interim maintenance may be invoked even
without any application in writing and a formal application in
writing is necessary under Section 26 only for awarding
maintenance and other reliefs after the decree. The learned Judge,
therefore, had perfect jurisdiction to grant pendente lite
maintenance to the minor child even without a formal application
and, therefore, his granting such interim maintenance even when
moved by an application labelled as one under Section 24 only,
can not be branded as without jurisdiction or to involve any
jurisdiction question even though Section 24 does not provide for
maintenance for children. As already indicated, when the Court
had jurisdiction under Section 26 to grant pendente lite
maintenance to the minor child the court could exercise its
jurisdiction even without any formal application, it would be
putting too much premium on technicalities to strike down an
order for maintenance for the child solely on the ground that the
application invoking such jurisdiction quoted a wrong section or
did not quote the right section. The tendency of the courts, as
pointed out by the Supreme Court in Pratap Singh vs. Shri
Krishna Gupta, 1 towards technicalities is to be deprecated
because it is the substance that counts and must take precedence
over mere form. If in substance the wife has applied for
maintenance of the child also and the materials on record also
justify such a grant, then the application being labelled as one
under Section 24 only is only a matter of form and the application
could very well be treated as an application for the purpose of
Section 26 also, even if an application was necessary for
pendente lite maintenance of children under Section 26.
It is true that some High Court have taken the view that while
allowing an application under Section 24 of the Hindu Marriage
Act, the Court has no power to grant pendente lite maintenance
for the minor children and reference in this connection may be
made, among others, to a Division Bench decision of the Orissa
High Court Akasam Chinna v. Akasam Parbati, 2 and to a single-
Judge decision of the Patna High Court in Bankin Chandras v.
Anjali. 3 We have examined those decisions and we have felt, and
this we have felt, and this we say with great respect, that these
1 Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 at page
141
2 AIR 1967 Orissa 163 at 164.
3 AIR 1972 Patna 80 at 81.
Maintenance pendente lite—Right of Children 111
decisions have adopted a rather technical and literal approach and

the effect and impact of Section 26 of the Hindu Marriage Act
have not at all been considered in these decisions. The Single-
Judge decision of the Karnataka High Court in D. Thimmappa v.
R. Nagaveni 1 is, however, in full accord with our view where it
has been held (at 217) that when the wife makes an application
under Section 24 of the Act to the Court for the grant of interim
maintenance for the children also, the Court can grant the relief
to the children also in exercise of its power under Section 26
wherever it considers it to be just and proper. The Single-Judge
decision of the Rajasthan High Court in Babolal v. Prem Lata, 2 is
also to the same effect where it has been held that if a case is
made out to that effect, interim maintenance can be granted to the
minor children while considering an application under Section 24
by the wife even in the absence of separate application under
Section 26 of the Act. We are, therefore, of the view that in
granting maintenance to the minor daughter, while disposing of
and allowing the application under Section 24 by the wife, the
learned Judge has not made any illegal assumption or illegal
exercise of jurisdiction to warrant our intervention in revision. 3
In order to claim maintenance for children as contemplated under
Section 26, no separate application is required to be made and on the
application of the wife moved under Section 24 in the proceeding for
dissolution of marriage under Section 13 of the Act, interim maintenance
may be granted for the children also. 4
The requirement of the husband or the wife would also include
the expenses required for the maintenance of the child. The interpretation
of the provisions should not be too literal; but purposive and functional.
As the provisions contained in Section 26 would go to indicate, the court
is empowered to pass interim orders as it may deem just and proper with
respect to maintenance of minor children. Section 26 operates also
during the pendency of the proceeding under the Hindu Marriage Act.
So, assuming that the provisions contained in Section 24 stricto sensu do
not authorise grant of maintenance to child. Section 26 authorises the
grant of pendente lite maintenance by way of interim orders during the
pendency of the proceedings. If the petition contains the averments,
notwithstanding the fact that the petition for maintenance pendente lite is
not made under Section 26, but only under Section 24, the court is
1 AIR 1976 Karnataka 215.

2 AIR 1974 Rajasthan 93.
3 Purshottam Das Aggarwala vs. Pushpa Devi, I (1983) DMC 100
Orissa; Manjo KR. Jaiswal vs. Lila Jaiswal, II (1986) DMC 269
Calcutta.
4 Harpal Singh vs. Additional Session Judge, 1999(3) CCC 232 All.
empowered to grant maintenance under Section 24 or under Section 24

read with Section 26 of the Act. Being of the view that the provisions
contained in Section 24 and 26 are beneficial provisions and literal
interpretation would be unsound, it was held that on an application
claiming maintenance for the husband or the wife, as the case may be
and for the child, maintenance can be granted to the child howsoever
labelled the petition may be. The substance matters, not the form. If
there be authority under the provisions, there is end of the matter. 1
Where an application is filed under Section 24 and there is an
averment of existence of minor child, the Court having regard to the
provisions of Section 26 can make an order awarding maintenance
pendente lite in respect of minor of child as well as the applicant. 2
The jurisdiction to pass orders with respect to the custody
maintenance and education of minor children continues even after the
main proceeding, initiated under the Act, has come to an end. The
expression that “the court may, after the decree, upon application by
petition for the purpose, make from time to time, all such orders and
provisions with respect to the custody, maintenance and education of
such children etc:” and “that the court may also from time to time
revoke, suspend of vary any such orders” would show that the decree in
the main proceeding does not terminate the power of the court to pass
suitable orders relating to the custody, maintenance and education of the
minor children. These orders are essentially in the nature of interim
orders and are liable to be modified, revoked or suspended if there be a
change in the relevant circumstances of the parties. 3
Scheme under Hindu Marriage Act, 1955

S 24 of Hindu Marriage Act, 1955 is as under:
“24. Maintenance, pendente lite and expenses of proceedings—
Where in any proceeding under this Act it appears to the Court
that either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application
of the wife or the husband, order the respondent to pay the
petitioner the expenses for the proceeding such sum as, having
1 Mahendra Kumar Mishra vs. Snehalat Kar, AIR 1983 Orissa 74:
1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254: (1983) 1
DMC 219.
2 Subhasini vs. B.R.Umakanth AIR 1981 Kant 115 (DB): ILR (1980)
1 Kant LJ 734.
3 A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87
Mad LW 537: (1974) 2 Mad LJ 237.
Maintenance pendente lite—Scheme under Hindu Marriage Act, 1955 113
regard to the petitioner’s own income and the income of the

respondent. It may seen to the Court to be reasonable”
The Section 24 is in two parts. The first part of the Section
provides for enquiry to be held by the Court in regard to the income of
the wife or husband (applying under Section 24), as the case may be, as
to whether her or his income is sufficient for her or his support. Once
after such an enquiry it is held that the wife or the husband, as the case
may be, has no sufficient income to support herself or himself, the Court
will proceed to make an order directing the other side to pay
maintenance pendente lite as well as expenses of the proceeding. At that
stage, which will constitute the second stage of enquiry, the Court will,
for the purpose of determining the sum of the maintenance or the
expenses, take into consideration the own income of the wife or husband,
as the case may be, as well as the income of the other side. In my
opinion, the expression “having regard to’ occurring in the second part
of Section 24 refers to and is relevant only for the purpose of
quantification of the sum, which is to be paid by the husband or the wife.
In a case where there is no dispute that the petitioner of the application
under Section 24, in the instant case the wife-opposite party, has no
income of her own, the order in terms of Section 24 directing payment of
maintenance pendente lite and the expenses of the proceeding should
ordinarily be made. 1
In this connection it would not be put of place to mention that the
history of law of alimony or maintenance can/be traced back to the
conditions then prevailing in England where the wife was considered to
be a tutelage to and economically dependent on her husband and was
thus to be maintained so long she was the wife. The conditions
prevailing in India even now, by and large, are no better. In many
English decision it has been held that the wife is the privileged suitor.
Therefore, having regard to the conditions prevailing in India the
provisions of Section 24 have to be liberally constructed as to make them
vibrant rather then dormant. In the instant case, there is no dispute that
the wife has no income of her own. The factum of marriage is also not in
dispute. It was accordingly, held that there was no infirmity in the order
granting interim maintenance and expenses of the proceedings. 2
Depending in the eligibility as visualised under the Section to the
benefits under it, either the wife or the husband can be directed to pay
the other side: (1) the expenses of the proceeding; and (2) reasonable
sum to be paid monthly during the pendency of the proceeding, for his or
1 Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.
2 Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.
her support. The monthly sum so paid is obviously towards maintenance

during the proceeding. The Court adjudicates the amount necessary and
allowable to the respondent as the maintenance and support and directs
the respondent to pay the same. Hence what is determined by the Court is
actually the amount which becomes payable to the applicant for his or
her support. The words “during the proceeding” only indicates the period
till which the payment is to be directed. The right to get the sum, as is
directed, is independent of the continuance or otherwise of the
proceeding itself. But the monthly sum so fixed would not continue to be
chargeable beyond the conclusion of the proceeding, but the liability to
pay, as determined, is independent of the continuance of the proceeding.
The word do not have any other meaning except that. Hence the
responsibility to pay the maintenance fixed independently survives the
closer or lapse of the proceeding and can be proceeded with for
enforcement by the party in whose favour the order has been made. This
conclusion is irresistible since the event for payment of interim
maintenance is the initiation of the proceeding against the other side in
which he or she is made to appear and defend himself which necessarily
involves incurring expenditure for the purpose, and if he or she has no
independent source of income sufficient for support, the law casts
responsibility on the other side having regard to the respective income of
the parties, to pay the maintenance. The provision is independent of the
provisions of Section 25 of the Act or the provisions of Hindu Adoptions
& Maintenance Act or Section 125 of the Code of Criminal Procedure. 1
estate of matrimony. In general, therefore, the husband is bound to
defray the wife’s costs of any proceeding under the Act and to provide
for her maintenance and support pending the disposal of such
proceeding. The doctrine of alimony, which expression in its strict sense
means allowance due to wife from husband on separation from certain
causes, has its basis in social conditions in England under which a
married woman was economically dependent and almost in a position of
tutelage to the husband and was intended to secure justice to her while
prosecuting or defending proceeding under matrimonial law. It is also
recognised that when the wife has separate means sufficient for her
defence and subsistence she should not be entitled to alimony nor costs
during the proceeding and if the husband has neither property nor
earning capacity, the courts would not award any interim alimony. It is
on these principles that the law relating to matrimonial causes provides
1 Parchuri Rajya Lakshmi vs. Parchuri Viswa Sankara Parasad, I

(1995) DMC 630 AP: 1995(2) CCC 487.
Maintenance pendente lite—Scope of enquiry 115
for rules for payment of maintenance pendente lite and expenses of

proceedings by the husband to the wife. Section 24, Hindu Marriage Act,
1955 adopts the above principles and goes one radical step further when
it lays down that any such order can be made not only in favour of the
wife but also in favour of the husband. The expression ‘respondent’ and
‘petitioner’ in the section obviously refer to the respondent and
petitioner to the interlocutory application for pendente lite and for
provision for cost and not to the petitioner and respondent to the
substantive petition. 1
Scope of enquiry
25 of the Act, the court is expected to make detailed inquiry and has to
take into account not only the income but other properties of the parties,
their conduct and other circumstances of the case that the court might
consider relevant. But that would not be so for the decision of the
application under Section 24 of the Act as in its very nature, the inquiry
under Section 24 has necessarily to be summary. The court cannot be
bogged down to intricacies of a protracted trial for fixing maintenance
pendente lite and expenses of the proceedings. Otherwise, the very object
of the section would be frustrated which is that a party is not
handicapped in prosecuting his or her case. But, then in deciding the
application under Section 24 of the Act, the court has to act in
accordance with sound judicial principles and cannot act in an arbitrary
fashion to the prejudice of either of the parties. 2 The following principles
would appear to be relevant for the purpose:
(2) reasonable wants of the claimant (towards food, clothing,
shelter, medical attendance and treatment, education and the
like);
(4) income of opposite party;
Two corollaries may be added here: (1) In arriving at the income
of a party only involuntary deductions like income-tax, provident fund
contribution, etc., are to be excluded; and (2) though under the law
opposite party may be obliged to maintain brother or sister but if that
brother or sister having no income is living with the opposite party as
member of his family and where either there are no parents or are unable
1 Rajambal vs. Murugappan, I (1986) DMC 59 Madras; Amrik Singh

@ Bhalla vs. Lakhwinder Kaur, II (1985) DMC 143 P&H.
2 Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10.
to maintain themselves, the court may in a given circumstances consider

the expenses to be incurred on the maintenance of brother or sister by the
opposite party. After all, court cannot be expected to adopt a mechanical
Scope of entitlement
An order of maintenance pendente lite and costs of the
proceedings can be made only in a proceeding under the Hindu Marriage
Act and only for the period “during the proceedings”. The term “during
the proceedings” would cover the proceedings from the start till the end
or at least from the date of the application under Section 24 till the
termination of the proceedings in the Court. Section 24 of Civil
Procedure Code confers general power of transfer and withdrawal of
suits and proceedings up on the High Court and the District Court. There
is no substance in the contention raised on behalf of the applicant that
this application under Section 24 of C.P.C. is part of the proceedings
initiated by the opposite party for the annulment of the marriage under
the provision of Hindu Marriage Act but assuming without deciding that
it is part of the proceedings so initiated under the provisions of the
Hindu Marriage Act, the applicant cannot claim expenses for the
application and monthly allowance independent of the initial
proceedings. Under Section 24 of the Hindu Marriage Act one can claim
maintenance pendente lite and expenses for the entire proceedings and
not for each and every application and step taken in those proceedings. 2
So even if it is assumed that this transfer application is a step
taken in the initial proceedings or is a part of the initial proceedings
which are pending in the court below, then the applicant cannot claim
separate expenses for this application. In this view of the matter, the
applicant was held to be not entitled for maintenance pendente lite and
expenses of proceedings for this transfer application even if it is assumed
that it is a part of the proceedings initiated against her by the opposite
party under the Hindu Marriage Act. 3
A wife cannot be held to be entitled to maintenance pendente lite
under Section 24, Hindu Marriage Act solely or simply on the ground
that she is running in deficit in running her separate household. The trial
court would have jurisdiction to award maintenance under that section
2 Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302:
1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.
3 Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302:
1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.
Maintenance pendente lite—Scope of Liability 117
only on the finding that the applicant-wife has no independent income

sufficient for her support and what amount would be sufficient for the
support of the wife must be determined on the basis of the income of the
husband. Where the trial court did not determine as to what amount the
wife-applicant can reasonably claim for her support as the wife of the
husband-opposite party and not having found that she does not earn that
income, the absence of the jurisdictional fact to invest the Court with the
jurisdiction to invoke Section 24 is apparent on the face of the record. 1
Scope of expenses
In so far as the word “expenses” is a word of wider connotation
and includes “costs”, but is not limited to the costs that would be payable
on a party-and-party taxation under the rules of the Court. This view of
the word “expenses” used in Section 36 is supported by the very object
of the provision that is to be found in that section which is to enable the
wife to contest the proceeding without being at the disadvantage of
suffering from want of means. That object would not be served if the
word “expenses” in Section 36 is construed as limited to the amount that
would be payable by way of costs on a party-and-party taxation. In my
opinion, having regard both to the language of the section as well as its
object, the Court has power under Section 36 to order payment pendente
lite of all or such part of the attorney and client costs incurred by the
wife as it may consider to be reasonable. 2
Scope of Liability
Any one who claims himself to be a married man should be able
to pay that much for the support of his wife and if the husband is not in a
position to pay even that much to the wife he has no right to the society
of wife even if the marriage between them was valid in law. When it is
the case of the husband that the wife was over 18 years of age when the
marriage took place and the marriage was right and proper he should
have instead of filing this application against the order under Section 24,
tried to have the main petition for divorce decided as early as possible
because his liability for maintenance will continue only up to the date of
the decision of the main petition. 3
1 Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC

276 Calcutta.
2 Louise Dinshaw Cambata vs. Dinshaw S. Cambata, AIR 1974
Bombay 82: 75 Bom LR 532; 1973 Mah LH 1051.
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452:
1982 Hindu LR 387; Ram Babu vs. Second Additional Civil Judge,
Kanpur, I (1983) DMC 196 All.
Second Appeal
Any proceeding under the Act is a proceeding in respect of a right
conferred under the Act and touches, in most cases, the marital status of
the party to the marriage. Such a proceeding starts in the Trial Court and
continues till the rights status of the parties is finally adjudicated. Thus,
an appeal, and for that matter even a Second Appeal would obviously
relate to the adjudication of the rights of the parties to the main petition
and it can hardly be said that a first appeal or even a second appeal is not
a proceeding under the Act. 1
The right of second appeal conferred by Section 28 is limited to

the grounds set out in Section 100 of the Code of Civil Procedure and
can, therefore, be exercised only on questions of law and not on question
of fact. What should be the quantum of the amount of permanent alimony
on a consideration of the factors set out in Section 25 is essentially a
question of fact and no Second Appeal can lie to challenge the
determination of the amount of permanent alimony made by the lower
appellate Court unless the complaint be that the lower appellate Court
has failed to take into account any factors set out Section 25 or taken
into account any extraneous or irrelevant factors. 2
Second marriage
The respondent is primarily liable for the maintenance of the
petitioner so long as she does not re-marry. The respondent is claimed to
be supporting his sister and mother. But the mother has no ration card
with the respondent and the sister is also married. Therefore, there is no
other liability resting on the shoulders of the respondent. Taking into
consideration the total income of the respondent, it was held that
maintenance at the rate of Rs. 450/-would be just and reasonable. The
fixation of the maintenance allowance at the rate of Rs. 150/- per month
from the date of the application seems to be justified in the totality of the
circumstances of the case. 3
The object behind Section 24 of the Act providing for
maintenance pendente lite to a party in matrimonial proceedings is
obviously to provide financial assistance to the indigent spouse to
1 Sunita Anilkumar Agrawal vs. Anilkumar Balmukund Agrawal,

1998(2) CCC 479 Gujarat.
2 Patel Dharamshi Premji vs. Bai Sakar Kanji, AIR 1968 Gujarat 150
(DB): ILR (1967) Guj 866: 8 Guj LR 888.
3 Surinder Kaur vs. Manohar Singh, II (1991) DMC 84 Delhi.
Maintenance pendente lite—Striking off defence 119
maintain herself or himself during the pendency of the proceedings and

also to have sufficient funds to carry on the litigation so that the spouse
does not unduly suffer in the conduct of the case for want of funds.
When considering such a piece of legislation, it would not be right to
adopt a narrow pedantic approach. On the other hand if the Court desires
to gather the legislative intention from the provisions of such an Act, it
must adopt a liberal and progressive approach keeping in mind that it
was the liberal and progressive approach of the Legislature which led to
the enactment being passed. 1
Even in a case of bigamous marriage one of the parties can seek a
decree of nullity of marriage by way of petitioner or respondent which is
permissible under Section 23-A of the Act. It may also be seen that in
pending proceedings even at the instance of the second wife is a void
bigamous marriage, the Court is empowered to make an attempt for re-
conciliation, to pass necessary orders with regard to the custody of the
children and disposal of the property exchanged at the time of marriage.
The Court has also power in such proceedings to make an order of
permanent alimony or maintenance under Section 25 of the Act. The Act
confers wide powers on the matrimonial Court so as to regulate
matrimonial relationship between the parties and such powers are to be
exercised by the Court even in a case of alleged or proved bigamous
marriage. In enacting Section 24 a special provision is made for ordering
interim maintenance and the expenses of litigation to be provided for the
contesting husband or wife if he or she had no independent sufficient
income. There is no reason why the words “wife” or “husband” used in
Section 24 should not be interpreted so as to include a man and woman
who have gone through a ceremony of a Hindu Marriage which would
have been valid but for the provisions of Section 11 read with Clauses (i)
of Section 5 of the Hindu Marriage Act. These words have been used as
convenient terms to refer the parties who have gone through a ceremony
of marriage whether or not that marriage is valid or subsisting, just as the
word “marriage” has been used in the Act to include a purported
marriage which is void ab initio. 2
Striking off defence

“He who seeks equity, must do equity”, is another maxim of
equity. Still another maxim “Equity imparts an intent to fulfil an
obligation”. And a person who is not equitable in discharging his family

221 Bombay.
221 Bombay.
obligation is not entitled to any relief from a matrimonial court. All these
maxims of equity are invoked while exercising inherent powers of the
court, for staying the proceedings, striking off the defence or dismissing
the suit. By just passing the said orders, only the dignity of the Court is
ensured, while by enforcing the order obligations to the family, wife and
children are saved from vagrancy. These are two sets of obligations and
they obviously require two remedies. As such, two sets of civil remedies
should not be equated with double penalty. 1
Where the husband was afforded more than ample opportunities
for making the payment but he did not pay the maintenance pendente lite
allowed to the wife under Section 24 of the Act, it was held that the
Judge, Family Court thereupon rightly struck off the defence of the
appellant who was respondent in the divorce petition. 2
Maintenance pendente lite and expenses of the proceedings are
ordered to be paid under Section 24 of the ground that the spouse in
whose favour the order has been made is without necessary means to
maintain herself and bear the expenses defending herself. Section 28-A
of the Hindu Marriage Act provides that all decrees and orders made by
the Court in any proceeding under this Act shall be enforced in the like
manner as the decrees and orders of the Court made in the exercise of its
original civil jurisdiction for the time being enforced. It cannot be
disputed that order under Section 24 is passed during the pendency of the
proceeding under the Act. Therefore, it is executable as decree passed by
Civil Court in exercise of original civil jurisdiction. 3
The Bombay High Court in Sarla Devi vs. Bharat Kumar 4 went to
the extent of holding that wilful disobedience by the husband to pay the
maintenance pendente lite and expenses of the proceedings would be
guilty of contempt and proceedings for contempt is not vitiated by
parallel proceeding under Order 21 Rule 37.
Unchastity
If a subsequent conduct of the wife who has become unchaste can
form the basis for cancellation of an order passed under Section 25(1), a
finding recorded during the judicial separation proceedings, regarding
the unchastity of the wife must and should be taken into account even in
1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66) DLT
460.
2 Om Prakash vs. Babli, II (1999) DMC 619 Rajasthan.
3 Kishan Lal vs. Longa Bai, I (1993) DMC 93 MP.
4 Sarla Devi vs. Bharat Kumar, I (1988) DMC 487
Maintenance pendente lite—Waiver 121
the first instance, when an order is being passed under Section 25(1) of
the Act. Otherwise it will lead to a very incongruous situation namely,
that it is only when a wife becomes unchaste after the award of
maintenance she is disabled from continuing to receive that maintenance,
whereas a wife who has been held guilty by the Court of unchastity even
in the main proceedings, will nevertheless be entitled to get maintenance,
in the first instance, under Section 25(1) of the Act. 1
Urgency
The object of Section 24 is to provide a monthly income and
expenses of the litigation to an indigent spouse to enable it to prosecute
or defend the proceeding under the Act and the law sees that nobody is
disabled from prosecuting or defending the matrimonial case by
starvation or lack of funds. It is true that the Court exercises wide
discretion in the matter of granting maintenance pendente lite, but the
discretion is judicial and not arbitrary and capricious. 2
In enacting Section 24, a special provision is made for ordering
interim maintenance and the expenses of litigation to be provided for
the contesting husband or wife if he or she had no independent
sufficient income. The very purpose of an order under Section 24 would
be frustrated if the manner of granting interim maintenance and of
providing the requisite expenses for the conduct of the proceedings
itself is deferred till the final stage of the proceeding. The direction for
interim alimony and expenses of litigation under Section 24 is one of
urgency and it must be decided as soon as it is raised and then only the
other matters in controversy can be gone into. 3
Waiver
The wife got a lump sum amount of Rupees 9000/- in execution
of the order passed in her favour under Section 125, Cr.P.C. At the time
when this amount was paid to her, only a sum of Rs. 6450/- was due to
her, but the husband in order to settle the matter finally paid a sum of
Rs. 9000/- and got an undertaking from the wife that no she would not
1 Raja Gopalan vs. Rajamma, AIR 1967 Ker 181: ILR (1966) 2 Ker
291: 1966 Ker LJ 856: 1966 Ker LT 891: 1966 Ker LR 518.
2 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700:
1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996
(1) All Mah LR 136.
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) CCC 700: 1996(1)
Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996 (1)
All Mah LR 136.
claim any type of maintenance etc. against him i.e. her husband. It was
on account of this undertaking that the amount which was not been even
due at that time, was paid to the wife. In view of that undertaking, it was
held that the wife could not claim separate maintenance under Section 24
of the Act, though, she may be entitled to the litigation expenses. 1
Withdrawal of application
Dismissal of the earlier application as withdrawn without
permission to file a fresh application would be deemed to have been
dismissed on merits. The underlying idea of order 23, Rule 1 of the
C.P.C. is that unless specific permission is sought from the Court to
file a fresh suit on the same cause of action, second suit would not be
maintainable to avoid multiplicity of proceedings and harassment to the
opposite party. But those principles are not applicable when the
application of the husband for the grant of restitution of conjugal rights
is still pending and Section 24 of the Act clearly allow the wife to
claim maintenance pendente lite as also the litigation expenses. It was
held that unless her claim under Section 24 of the Act is declined on
merits by a speaking order, she cannot be denied the benefit of Section
24 of the Act. 2
Withdrawal of main petition

The Trial Court gave a detailed order considering the income tax
returns and the fact that the petitioner was in business and had some
rental income and the wife was living in one room of her matrimonial
home. The main plea of the petitioner in the revision petition was that
the impugned order could not have been passed against him after the
withdrawal of the main petition filed by him under Section 13(1) of the
Hindu Marriage Act. It was held that this plea was without substance as
it is not stated at all whether after the withdrawal of the petition the wife
and the daughter were being maintained by him. It was further held that
irrespective of the withdrawal of the main petition by the husband, his
liability towards maintenance of his wife subsists and her right cannot be
defeated by this hyper-technical plea. 3
Normally the plaintiff of a suit has absolute and unqualified right
to withdraw from the suit. His liability is two-fold liability, i.e.,
1 Pritam Singh vs. Rajinder Kaur, AIR 1983 P&H 239: 1983 Hindu
LR 264: 1983 Marri LJ 300: 1983 Cur LT (Civ & Cri) 570: 1983
Mat LR 218.
2 Devinder Kaur vs. Gurcharan Singh, II (1983) DMC 63 P&H.
3 Kamal Seth vs. Saroj Seth, 1999(1) HLR 513 Delhi: 1999(1) DMC
267.
Maintenance pendente lite—Working wife 123
(i) to pay such costs as the Court may award and

(ii) he becomes precluded from instituting any fresh suit in
respect of that subject-matter under Sub-rule (3) of Rule 1.
Excepting the above twin liabilities, the right of the plaintiff to
withdraw from a suit is absolute and unqualified. However, there are
certain circumstances were different considerations may arise. As for
example, where a set off is claimed under Order 8 of Civil Procedure
Code or where a counter-claim is filed or where in a suit for partition a
preliminary decree is passed declaring and defining shares of several
parties or where and a partnership suit and suit for accounts defendants
too may be entitled to some relief’s in their favour as a result of
settlement of accounts. 1
Similarly it has been held that when during the pendency of the
proceedings under Section 9 of Hindu Marriage Act, application made by
the wife under Section 24 of Hindu Marriage Act, 1955, and by virtue of
statutory right recognised by Section 24 of the Act a right has accrued to
the wife to receive maintenance pendente lite least from the date of her
application and the costs of litigation, it shall have to be decided as to
whether the right of plaintiff (petitioner) to withdraw from the suit or
petition for restitution of conjugal rights remains uncontrolled and
absolute or it gets settled by the right of the other spouse to get
maintenance pendente lite at least upto the date of application for
withdrawal of suit/petition. 2
Working wife
All the High Courts in India have generally held that wife is
entitled to maintenance pendente lite to the extent of 1/3rd to 1/5th of the
income of the husband under Section 24 of the Act. The word
“sufficient” is a relative term and has to be considered on the facts of
each case. In this case it was held that if the wife was not employed she
would have been entitled to at least Rs. 1500/- to Rs. 2000/- per month
as maintenance pendente lite because the income of the petitioner has
been assessed at Rs. 8000/- per month. It was held that merely because
the respondent had chosen to work it does not mean that she is to be put
at a disadvantage and the husband is entitled to the benefit. It was further
held that he may be entitled to the benefit to the extent of her
1 Pratapbhai V. Trivedi vs. Priyamvada Ghamu Pratapbhai Trivedi, II

(1993) DMC 25 Gujarat.
2 Pratapbhai V. Trivedi vs. Priyamvada Ghamu Pratapbhai Trivedi, II
independent income but that does not mean that the income of husband
become irrelevant. 1
Written statement
The wife was not bound to file the written statement before
moving the court for grant of maintenance pendente lite and expenses of
the proceedings. The whole object of awarding expenses of proceedings
is to enable the party to fight the case. 2
1 Ashok Kumar vs. Satwant Kuar, I (1983) DMC 27 Delhi.

2 Jagdish w/o Hari Singh vs. Hari Singh, I (1985) DMC 100 Delhi.
Interim maintenance—Object 125
Chapter 3
Interim maintenance
SYNOPSIS
Introduction....................................125 Powers under Criminal Procedure
Object .............................................125 Code, 1973..................................... 131
Appropriate forum .........................127 Pauper wife.................................... 134
Conditions for granting maintenance Power under Section 151 Civil
.......................................................127 Procedure Code ............................. 134
Effective date..................................128 Power under Hindu Marriage Act,
Hardship ........................................128 1955 ............................................... 134
Inherent powers .............................128 Quantum ........................................ 134
Necessity of detailed enquiry .........130 Scope of adjudication .................... 135
Need for liberal approach ..............131
Introduction
Various enactments provide different provisions for maintenance
of wife by her husband. Some of these provisions provide for
maintenance during pendency of litigation between the parties while
other during the subsistence of marriage. Very often the application
seeking fixation for maintenance itself takes considerable time.
Therefore in order to do justice to the parties especially to the weaker
party it has been held by the courts that the matrimonial court is also
empowered to grant ad interim maintenance to the wife. This chapter
deals with such cases.
Object
Provisions under Sections 24, 25, 26 of the Hindu Marriage Act,
1955; Sections 18, 19, 20 and 22 of the Hindu Adoptions & Maintenance
Act, 1956; and Section 125 Criminal Procedure Code, 1973 as well as
similar provisions in other enactments, indicate a definite intention of
the Legislature to project and pursue a public policy against vagrancy. 1
Neither by forced separation, nor by staying the proceedings
under the Hindu Marriage Act, 1955 or any other similar provision,
1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66)
DLT 460
hunger is stopped. Hunger does not breed reform, it breeds madness and
all the ugly distempers that make an ordered life impossible. Similarly
nor the needs of clothing and shelter are suspended during the stay.
Consequently, complementary moral and legal obligation on the husband
to support his wife does not cease to exist, by staying the proceedings.
Section 24 and other similar provisions just recognize and enforce this
obligation. Court dealing with matrimonial matters while staying
proceedings and while refusing to allow defence, are not enforcing this
obligation. They are just enforcing rules of equity. Equity acts on the
conscience and conduct of a person who is guilty of neglecting his
family, wife and children, is so unconscionable that the court feels that
he should not be allowed to pursue his case. 1
Hindu Marriage Act, 1955 is a socio-welfare legislation and is
intended to protect the women and children whose very existence is
threatened because of non-availability of requisite means. Extent of their
destitution compels them to take recourse to process of law founded on
dis-reformative legislative. To deny an interim protection which the
applicant may be intended to as a final relief in the petition would be a
approach which would decimate the very legislative purpose behind this
legislation. The legislative intend to protect the right of maintenance is
unambiguously codified in the language of Section 18 and 20 of the Act.
Absence of a specific provision for grant of maintenance pendente lite
would no way exclude the power of the Court to grant such a relief
depending on the facts and circumstances of each case. It would amount
to frustrate the very legislative intent behind these provisions if the
interim maintenance is to be declined to the wife or the children in face
of the provisions of Section 18 and 20 of the Act. It will not only be
unfortunate but even with respect illogical to hold that the grant of
maintenance pendente lite is not permissible under the provisions of this
Act. A child who approaches the Court for grant of maintenance under
the provisions of this Act would not be even able to contest and take
the suit instituted to its final culmination if he or she was not granted
interim maintenance, particularly when the application satisfied the
basic ingredients spelt out by the Legislature for the grant of such
relief finally. 2
It is a settled principle of law that a relief which cannot be
granted while passing the final decree cannot be granted by way of
interim relief in those proceedings, but converse thereof is not true.
1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66)
DLT 460.
2 Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H.
Interim maintenance—Conditions for granting maintenance 127
Depending on the facts and circumstances of given case, the Court would
grant interim order if such relief can be granted to the applicant upon
final determination of the matter in issue. The provisions of Section 18
and 20 Hindu Adoptions & Maintenance Act, 1956 have to be given a
wider meaning so as to provide interim maintenance pendente lite by
necessary implication. These provisions do not prohibit or exclude or
any settled principle the jurisdiction of the Court to entertain and decide
an application for interim or maintenance pendente lite. The Court would
normally exercise its inherent powers to aid the ends of justice and to
achieve the object of legislation. The exception being exercise of such
inherent powers, it should not be in conflict with or destroy the intents
behind the substantive provisions of the law or code, which governs and
control the matter under adjudication. 1
Appropriate forum
A petition seeking interim maintenance has to be filed by the wife
or the children under Section 18 of Hindu Adoptions & Maintenance Act.
If a divorce petition or any other petition contemplated under the Hindu
Marriage Act is filed, then the interim maintenance can only be granted
under Section 24 of the Hindu Marriage Act and if a decree is finally
passed in that event the party who is entitled to claim maintenance can
file a petition under Section 25 of the Hindu Marriage Act. There is no
provision is law enabling the claim of maintenance under Section 151,
Civil Procedure Code. 2 However another view is that power to grant
interim maintenance is incidental and ancillary to the substantive relief
of maintenance envisaged in section 18 of the Act and if the ends of
justice so warrant the court is competent to grant it in a suit for
maintenance. 3 For more cases see under Inherent Powers.
Conditions for granting maintenance

Expression ‘any proceedings under this Act’ appearing in Section
24 of Hindu Marriage Act, 1955 covers the proceedings under Section 25
thereof. Section 25 contemplates that an order for permanent alimony
can be made at the time of the passing of any decree under the Act or any
time thereafter. Now, if a spouse has to make an application after any
decree under the Act has been passed and has no sufficient means of
his/her own, such spouse has to be provided for prosecuting the
1 Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H.

2 Avula Subrahmanyam vs. Avula Rama Devi, II (2000) DMC 71 AP.
3 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993
(3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR
69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR
577.
application for permanent alimony when the other spouse opposes any
grant thereof. Any other construction will be narrow and will lead to
frustration of the provision. Section 25 is a continuation of the main
proceedings. Placement or numbering of the Section or the description of
one set of documents as petitions and the other set as applications does
not alter this position. The purpose or using the words ‘husband’ or
‘wife’ is to identify the position occupied by the parties in the main
proceedings, and not to exclude ex spouses. 1
Effective date
In one case the learned Magistrate had not given any specific
reason for his direction for payment of interim maintenance from the
date of filing of the application under Section 125 Criminal Procedure
Code and not from the date of the application for interim maintenance or
from the date of the order. Though the position was not disputed that the
Magistrate had the competence to direct payment of interim maintenance
from the date of filing of the application under Section 125, Criminal
Procedure Code it was held that ordinarily the direction for payment of
interim maintenance is either from the date of the order or from the date
of application for interim maintenance. If the Magistrate considering the
facts and circumstances of the case before him deems it just and proper
to direct that interim maintenance should be paid not from the date of the
order or from the date of application for interim maintenance but from
the anterior date of filing of the application under Section 125 Criminal
Procedure Code he should discuss the reasons for such direction. This
will not only convince the parties that the jurisdiction vested in him has
been exercised properly and on sound judicial principles but it will also
avoid criticism of arbitrariness against his order. While deciding a case it
is important to determine whether the Court has the power/jurisdiction to
grant the prayer of the applicant and it is equally important to exercise
such power legally and properly. 2
Hardship
The order for payment of interim maintenance allowance can be
passed only in the case of great hardship. 3
Inherent powers
There is no separate provision in the Hindu Adoptions and
Maintenance Act, 1956 (for short the ‘Act’), for grant of maintenance

2 Sabita Sahoo vs. Captain Khirod Kumar Sahoo, I (1991) DMC 307
Orissa.
3 Hukum Singh vs. Satya Bhama, II (1995) DMC 502 MP.
Interim maintenance—Inherent powers 129
pendente lite. Section 18 of the Act, under which the case of the plaintiff
in essence is based, only provides for maintenance to a Hindu wife,
subject however to the two exceptions, carved out in sub-section (3) of
section 18 of the Act, which extinguish the right of a Hindu wife to a
separate residence and maintenance. Provisions of Sub-section (1) of the
said section make it obligatory for the husband to maintain the wife
during her lifetime. Her claim to maintenance is not forfeited even if she
resides separately on account of any of the grounds mentioned in Sub-
section (2) of the said Section. In other words, the obligation to maintain
the wife would still remain on the husband even though the wife might
be living separately from the husband until it is proved that the wife is
residing separately from the husband not under any of the circumstances
enumerated under Sub-section (2) of the said Section or is unchaste or
has ceased to be a Hindu by conversion to another religion. 1
That being the position in law, when it is imperative for the
husband to maintain his wife, it does not stand to any reason that during
the pendency of the suit for grant of maintenance, which may take
decades to attain finality, the wife in the first instance be forced to face
starvation and then subsequently is granted maintenance from the date of
the filing of the suit, if she is fortunate enough to survive till then. I feel
that such a view will be against the very intent and spirit of section 18 of
the Act. Even though there is no specific provision in the Act for grant of
maintenance pendente lite, the Court is amply empowered to make such
orders as may be necessary in the ends of justice. It is a trite proposition
of law that a court empowered to grant a substantive relief is competent
to award it on interim basis as well, even though there is no express
provision in the Statute to grant it. Power to grant interim maintenance is
incidental and ancillary to the substantive relief of maintenance
envisaged in section 18 of the Act and if the ends of justice so warrant
the court is competent to grant it in a suit for maintenance. 2
In one case the petitioner had asked for permanent alimony under
Section 37 of the Act and in case she succeeded in getting the order of
judicial separation under Sections 22 and 23 of the Act in her favour and
against the respondent, she would be entitled to the grant of permanent
alimony. It was held that therefore, there should be left some security in
the form of immoveable properties or otherwise which should be
1 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234:

1993 (3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547:
1993 RLR 69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993
(3) RRR 577.
2 Neelam Malhotra vs. Rajinder Malhotra, ibid.
sufficient and adequate enough for the grant of permanent alimony under
section 37 of the Act and that the house of husband can be adequate
security for the payment of permanent alimony to the petitioner in case it
is granted by the Court because every Court has inherent power to grant
relief during the pendency of the proceedings if the interest of justice so
requires. 1
In the case of Rama Chandra Behera and others v. Smt.
Snehalata Dei, 2 Orissa High Court held as under:
“……..We agree that there may be cases where taking the extra
ordinary aspects into consideration, the Court may proceed to
exercise inherent powers to grant interim relief. It is not
appropriate to set limitation on count’s inherent powers by
interim relief. It is not appropriate to set limitations on court’s
inherent power by indicating circumstances where it can be and
where it cannot be exercised……”
The power to make an interim order for maintenance pending an
application under Section 18 of the Act is implicit in the section. Such a
relief must be held to be ancillary and the power would be necessary
corollary to the power of the Court to entertain the application for
substantive relief. There have been a series of decision of this Court
taking the aforesaid view which in my opinion is also in consonance with
the spirit of the law. 3
However in a case involving Muslim Law it has been held that
the nature of the suit for restitution of conjugal rights is different from
the suit for maintenance which a Mohammedan is entitled to file under
the Mohammedan Law. There is also remedy to the wife to claim
maintenance under Section 125 of the Code of Criminal Procedure which
in fact the non-applicant/wife has resorted to. Therefore the Civil Court
had no jurisdiction to grant any interim relief by way of maintenance
pending the decision of the case. 4
Necessity of detailed enquiry

A detailed inquiry is not contemplated while deciding an
application for interim maintenance. Where the trial Court had gone into
details about the dispute between the parties and about the source of
income of both the parties, It was held that it had adopted a hyper-
Del.
2 AIR 1977 Orissa 96.
3 Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114
Orissa.
4 Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13.
Interim maintenance—Powers under Criminal Procedure Code, 1973 131
technical attitude by stating that the affidavit filed in support of the

interim application was not in first person but was in third person. It was
held further that the learned Additional Session Judge had, therefore,
rightly in interfered with the order and has assessed the grant of interim
maintenance by adopting the correct approach. The learned Additional
Session Judge had also observed that the application for interim
maintenance was supported by an affidavit though the affidavit was in
third person and not in first person but the husband has neither gives his
own affidavit not has filed affidavit of any other person to support his
contentions. Further It was held that in any case, it was not a fit case for
interference by the High Court. In the very nature of things an order of
interim maintenance has to be based on best judgment assessment and
the High Court cannot substituted its own assessment in place of the
assessment of the lower Courts unless such assessment is shown to be
perverse or based on no material at-all. 1
Need for liberal approach

Wife without paying any Court-fees or bearing out any expenses
of the litigation only on a simple application could have been granted the
maintenance under Section 125 of the Criminal Procedure Code by the
Criminal Court. It is also no more in dispute that pending decision of the
substantial application under Section 125 of Criminal Procedure Code,
the Court has all power to grant the interim maintenance to the wife also.
In the context of this legal position and keeping in view the benevolent
provisions of the maintenance to be granted to the wife, it was held that
the Court should have been liberal in their approach while dealing with
the application for grant of interim maintenance and should have made
justice-oriented efforts and the technicalities if any comes in their way to
grant interim maintenance, as it is sought to be raised by the husband
than those should have been excluded or given go-by in view of the
provisions as contained Article 21, Article 39-A of the Constitution as
well as the provisions as contained in the Act and Order 3 of the Civil
Procedure Code. 2
Powers under Criminal Procedure Code, 1973

There is no express provision in the Code which authorises a
Magistrate to make an interim order directing payment of maintenance
pending disposal of an application for maintenance. The Code does not
also expressly prohibit the making of such an order. In order to enjoy the
1 Purushottan vs. Jayanti Bai, I (1992) DMC 266 MP.

2 Amankumar Latibhai Parekh vs. Pritiben Amankumar Parekh, II
fruits of the proceedings under Section 125, the applicant should be alive
till the date of the final order and that the applicant can do in a large
number of cases only if an order for payment of interim maintenance is
passed by the Court. Every Court must be deemed to possess by
necessary intendment all such powers as are necessary to make its orders
effective. This principle is embodied in the maxim ‘ubi aliquid
conceditur, concidetur et id sine quo res ipsa esse non potest (Where
anything is conceded, there is conceded also anything without which the
thing itself cannot exist.) A contrary view is likely to result in grave
hardship to the applicant, who may have no means to subsist until the
final order is passed. There is no room for the apprehension that the
recognition of such implied power would lead to the passing of interim
orders in a large number of cases where the liability to pay maintenance
may not exist. It is quite possible that such contingency may arise in a
few cases but the prejudice caused thereby to the person against whom it
is made is minimal as it can be set right quickly after hearing both the
parties. The Magistrate may, however, insist upon an affidavit being
filed by or on behalf of the applicant concerned stating the grounds in
support of the claim for interim maintenance to satisfy himself that there
is a prima facie case for making such an order. If the allegations in the
application or the affidavit are not true, it is always open to the person
against whom such an order is made to show that the order is
unsustainable. Having regard to the nature of the jurisdiction exercised
by a Magistrate under Section 125 of the Code, it was held that the said
provision should be interpreted as conferring power by necessary
implication on the Magistrate to pass an order directing a person against
whom an application is made under it to pay a reasonable sum by way of
interim maintenance subject to the other conditions referred to the
pending final disposal of the application. 1
It is the duty of the Court to interpret the provisions in Chapter
IX of the Code in such a way that the construction placed on them would
not defeat the very object of the legislation. In the absence of any
express prohibition, it is appropriate to construe the provisions in
Chapter IX as conferring an implied power on the Magistrate to direct
the person against whom an application is made under Section 125 of the
Code to pay some reasonable sum by way of maintenance to the
applicant pending final disposal of the application. It is quite common
1 Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984:
1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR
(SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160:
1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2)
Scale 697: 1986 Pat LJR (SC) 6.
Interim maintenance—Powers under Criminal Procedure Code, 1973 133
that applications made under Section 125 of the Code also take several
months for being disposed of finally. In order to enjoy the fruits of the
proceedings under Section 125, the applicant should be alive till the date
of the final order and that the applicant can do in a large number of cases
only if an order for payment of interim maintenance is passed by the
Court. Every Court must be deemed to possess by necessary intendment
all such powers as are necessary to make its orders effective. This
principle is embodied in the maxim ‘ubi aliquid conceditur, concediture
et id sine quo res ipsa esse non potest (Where anything is conceded,
there is conceded also anything without which the thing itself cannot
exist. A contrary view is likely to result in grave hardship to the
applicant, who may have no means to subsist until the final order is
passed. There is no room for the apprehension that the recognition of
such implied power would lead to the passing of interim orders in a large
number of cases where the liability to pay maintenance may not exist. It
is quite possible that such contingency may arise in a few cases but the
prejudice caused thereby to the person against whom it is made is
minimal as it can be set right quickly after hearing both the parties. The
Magistrate may, however, insist upon an affidavit being filed by or on
behalf of the applicant concerned stating the grounds in support of the
claim for interim maintenance to satisfy himself that there is a prima
facie case for making such an order. Such an order may also be made in
an appropriate case ex parte pending service of notice of the application
subject to any modification or even an order of cancellation that may be
passed after the respondent is heard. If a civil court can pass such interim
orders on affidavits, there is no reason why a Magistrate should not rely
on them for the purpose of issuing directions regarding payment of
interim maintenance. The affidavit may be treated as supplying prima
facie proof of the case of the applicant. If the allegations in the
application or the affidavit are not true, it is always open to the person
against whom such an order is made to show that the order is
unsustainable. 1
A bare perusal of the provision of Section 125 Criminal
Procedure Code spells out that there is no specific provision for
awarding interim maintenance pendente lite. However, the Court, under
the facts and circumstances of the case, is not lagging behind in suitable
cases to pass such an order keeping in view the object of Section 125
1 Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984:
1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR
(SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160:
1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2)
Scale 697: 1986 Pat LJR (SC) 6.
Criminal Procedure Code that the proceedings for maintenance under

Section 125 Criminal Procedure Code are to prevent vagrancy by
compelling a person to support his wife, children or parents as the case
may be. 1
Pauper wife
When wife is declared to be pauper by the court but maintenance
denied, such order is patently inconsistent and wife entitled to
maintenance. 2
Power under Section 151 Civil Procedure Code

The nature of the suit for restitution of conjugal rights is different
from the suit for maintenance which a Mohammedan is entitled to file
under the Mohammedan Law. There is also remedy to the wife to claim
Power under Hindu Marriage Act, 1955

No doubt Section 24 unlike Section 26 does not expressly provide
that the Court may pass orders for interim maintenance/expenses of the
proceeding from time to time. But there is no express or implied bar in
the provision for exercise of such jurisdiction in a deserving case.
Therefore, it will neither be legal nor just and proper to limit the wide
discretionary power conferred on the Court by holding that the Court has
no power to modify or vary its order awarding interim maintenance even
on proof of changed circumstances. 4
Quantum
Where the High Court fixed up a sum of Rs. 3,500/- and It was
held that that it is far too low. The wife had claimed that at least a sum
of Rs. 10,000/- should be granted by way of interim maintenance as she
had not only to maintain herself but to bring up the only child in the
standard in which child of a D.I.G. has to be brought up. The husband
submitted that the entire amount which he gets is by way of salary only
and the take of amount cannot exceed Rs. 16,000/-. This was disputed by
1 Hemlata vs. Ram Nihore, I (1991) DMC 546 MP.

2 Lata alias Hemlata vs. Civil Judge, Bulandshahr, AIR 1993 All 133:
1993 All LJ 510: 1992 All CJ 933: 1992 All WC 1878.
4 Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491
Orissa.
Interim maintenance—Scope of adjudication 135
saying that the respondent is getting other income by way of house rent,
etc. In this background the Supreme Court permitted the wife to prove
all such facts for a decision at the final stage when the Court will be in a
position to fix the sum which in the circumstances be reasonable to be
given by way of maintenance to the wife/appellant and the child. But at
this stage the Supreme Court deemed it sufficient to fix a sum of
Rs. 6,000/- as interim maintenance in place of Rs. 3,500/-. This
enhancement will work from 1 st July, 2000. It was however made clear
that the High Court shall not in any way be influenced by that amount in
fixation in the sum at the final stage as the Supreme court was not fully
in possession of the materials and the documents to ascertain the exact
amount of income of the respondent. Hence, when final amount is fixed
the High Court will certainly look into the other aspects of the matter. 1
Scope of adjudication
The appellant filed a petition for judicial separation and other
reliefs. In the said petition, the appellant claimed interim maintenance.
The Family Court partly allowed the application to the extent of the
claim of interim maintenance in respect of the two minors daughter. As a
counter-blast the respondent filed a petition in the Family Court for
declaration that the marriage with the appellant was nullity. Both the
petitions— one filed by the appellant and the other by the respondent
were yet to be decided on merits by the Family Court. Under the
circumstances, it was held that it was not appropriate for the High Court
to record any concluded opinion about the legal position of the marriage
between both the parties. 2
In a case under Section 125, Criminal Procedure Code it was held
that the Trial Court is to take prima facie views of the mater and it is not
necessary for the Court to go into the matrimonial dispute between the
parties in detail. 3
1 Shivani Chattopadhyaya vs. Siddarth Chattopadhyaya, I (2001)

DMC 57 Supreme Court.
2 Madhavi Ramesh Dudani vs. Ramesh Dudani, I (2000) DMC 692
Supreme Court.
3 Jagdish Kuar @ Rama vs. Vijay Kumar, I (2000) DMC 703 P&H.
Chapter 4
Disabilities depriving
maintenance
SYNOPSIS
Introduction....................................136 Legitimacy of child ........................ 163
Abandonment of claim ...................137 Living in adultery .......................... 165
Adultery ..........................................137 Living separate by mutual consent 166
Agreement to live separately ..........142 Living with father .......................... 167
Annulment of marriage ..................142 Maintenance by others .................. 167
Cancellation ...................................143 Necessity of consummation of marriage
Co-habitation by divorced wife ......143 ....................................................... 168
Conduct of wife ..............................144 Nullity marriage ............................ 168
Consent to live separately ..............147 Ornaments ..................................... 169
Decree for restitution of conjugal rights Ownership of property................... 169
.......................................................147 Paternity of child ........................... 170
Demand of separate residence .......150 Pre-existing order.......................... 170
Dependence on parents ..................150 Prior marriage .............................. 170
Dependence on parties ...................150 Proof of divorce ............................. 170
Dispute about validity of marriage 151 Proof of marriage .......................... 171
Divorced wife .................................152 Refusal to co-habit......................... 174
Earning wife ...................................154 Restitution of conjugar rights ........ 147
Effect of caste .................................154 Right over property ....................... 184
Explanation for living separately...155 Second marriage............................ 184
Fixed properties .............................155 Second wife .................................... 190
Illegitimate child ............................156 Sufficient income ........................... 191
Illegitimate wife .............................156 Temporary Employment ................ 191
Independent income of wife ...........157 Unproved illicit relation ................ 192
Inherited fixed assets......................159 Unreasonably attitude ................... 193
Invalid marriage ............................160 Validity of marriage ...................... 193
Justification to live separately .......161 Working wife.................................. 200
Introduction
Different provisions of the various Acts governing personal laws
provide for maintenance pendente lite as also permanent maintenance or
alimony. These provisions refer to various factors, which have to be
Disabilities depriving maintenance—Adultery 137
considered by the courts. Some of these factors are the income, status
and conduct of the parties. These factors as interpreted by court as also
section 18 of Hindu Adoptions & Maintenance Act, 1956 lays down the
circumstances in which the spouse shall not be entitled to maintenance.
This chapter deals with such disabilities, which affect the grant of
maintenance.
Abandonment of claim
Simply because the wife has not claimed maintenance for a long
period, it does not mean that she has completely abandoned her right or
voluntarily given up her right to claim maintenance. In her application
she pleaded that she has no other source of income and she is unable to
maintain herself. She might be living with her parents to the utter
humiliation of other ladies and without any courtesy and respect which a
daughter is entitled to in her parental house if she is living quite happily
and peacefully with the husband, with the only fond of reunion. But
when all her hopes are shattered away, and when there is no other source
of income and when she feels herself burdensome to her parents or
brothers, she has approached the Court claiming maintenance. Apart
from that, Section 125 Criminal Procedure Code has not restricted the
period of limitation to claim maintenance. When the statute has not
prohibited any wife to claim maintenance with any period of limitation,
the petitioner is not entitled to plead that she has waived her right to
claim maintenance due to the long lapse of 10 or 12 years after she left
his house. Due to the changed circumstances in her parents house, her
parents may not be willing to maintain her and they may not be in a
position to maintain her since other children have grown up and some
other problems might have cropped up in her family. Under these
circumstances, the petitioner is not entitled to raise the plea that the
respondent has waived her right to claim maintenance after a long lapse
of 12 years. 1
Adultery
The word “adultery” has been considered in many decisions since
a century. The words “is living in adultery” in Sub-section (4) of Section
125 Criminal Procedure Code would not take into their fold stray
instance of lapses from virtue, it would not also mean that the wife
should be living in adultery on the date of the petition. The proper
interpretation would be that there should be proof of adulterous living
shortly before or after the petition, shortly being interpreted in a
reasonable manner viewing it in the light of the face of the case.
1 Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP.

Kanaasami Pillai v. Murugamal, 1 suit was filed in 1887 by a

Hindu wife against her husband and a decree for maintenance was
obtained and the judgment-debtor sued to have the decree set aside,
alleging that his wife had since committed adultery and given birth to an
illegitimate child. The wife denied adultery and stated that her husband
had become reconciled to her and that the child was legitimate. But is
was found that the case of the judgment-debtor was established and that
defendant’s misconduct had been recent, open and continuous. In those
circumstances the court set aside the decree passed in the previous suit
granting maintenance and held that the defendant was not entitled even
to a bare maintenance.
In Kista Pilia v. Amirthammal, 2 Panduranga Row, J., observed
thus:
“Emphasis no doubt to be laid on the words ‘living in adultery’.
in other words, as was pointed out by the Bombay high court in re
Fulchand Maganlal AIR 1928 (52) Bombay. 160 the clear
implication from the words used by the legislature in this section
(section 488 of the old criminal procedure code) is that, unless
the wife is actually living in adultery at or about the time of the
application, she is not disentitled to obtain maintenance. it is
nowhere said in the section, and there is no need to introduce
additional words therein, that living in adultery must be in the
house of adulterer. the words “living in adultery” are, in my
opinion, merely indicative of the principle that occasional lapses
from virtue are not a sufficient reason for refusing maintenance.
continued adulterous conduct is what is meant by “living in
adultery”. the question, therefore, for the magistrate to decide in
this case was whether there had been such adulterous conduct on
the part of the petitioner at or about the time of the application,
that is to say, shortly before or shortly after the application was
made, interpreting the word ‘shortly’ in a reasonable
manner……… my opinion is that in a case of claim for
maintenance like this, the “respondent (husband)” who puts
forward a charge of “living in adultery” against the petitioner
(wife) as his only defence to the claim for maintenance, ought to
begin his case, and the petitioner against whom the charge is
made ought to have been an opportunity of adducing rebutting
evidence.”
In M.A. Mya Khin v. N.N. Godenho, 3 it was held that words
“living in adultery” in Section 488(5) denoted a continuous course of
conduct and not isolated acts of immorality. One or two lapses from
1 1896 ILR 19 Madras 6.

2 1938 Madras Weekly Notes (Crl.) 145
3 AIR 1936 Rangon 446.
virtue could be acts of adultery, but would be quite insufficient to show

that the woman was living in adultery, which means that she must be
living in the state of quasi-permanent union with the man with whom she
is committing adultery. Further, it has been pointed out that there is a
great distinction between the words ‘committing adultery’ and ‘living in
adultery’ and that the ratio is that a solitary lapse from virtue, as
distinguished from contumacious immoral conduct, should not be a
ground for denying maintenance. The same court in M.A. Thein v. Maung
Mya Khin, 1 observed that the phrase “living in adultery” refers to course
of guilty conduct and not a single lapse from virtue. It was held that the
fact(herein) that a child was begotten when the husband could not get
access to the wife showed that the wife must have been guilty of adultery
on more than one occasion and therefore she was not entitled to
maintenance, apparently on the presumption that it is extremely rare that
conception happens after one solitary intercourse.
Ramaswami, J. in M. Kanniappan v. Akilandammal, 2 observed
that occasional lapses from virtue are not a sufficient reason for refusing
maintenance and that the continuous adulterous conduct at or about the
time of the application is what is meant by “living in adultery” and the
court may in its discretion refuse to grant the allowance in cases where,
apart from the fact that living in adultery in the sense of a course of
continuous adulterous conduct has not been proved, there may exist
circumstances which would justify such refusal. Regarding the
interpretation of the term “living in adultery”, after referring to the
various decisions, the learned Judge observed as follows:
“On as analysis of the case-law and the proposition deducible
there from, the conclusion of the learned Chief Presidency
Magistrate granting maintenance on the ground that though and
adulterous conduct on the part of the petitioner has been proved,
it has not been further proved that she was living in adultery at
the time of the petition, cannot be upheld.”
Pursuant to the above observation, the learned Judge set aside the
finding of the Magistrate and ordered for a further enquiry since the
parties in that case had not come to grips on the point which should not
be proved and rebutted in regard to the award of and withholding of
maintenance and since they might also like to adduce further evidence in
support of their respective contentions. 3
1 AIR 1937 Rangoon 67.

2 1953 Madras Weekly Notes (Crl). 48.
3 M. Kanniappan v. Akilandammal, 1953 Madras Weekly Notes (Crl).
48.
In S.S. Manickam v. Arputha Bhavani Rajan, 1 the facts were: the

wife was living in adultery with her husband’s brother. Many letters
written by the wife to her paramour were marked. One of the letters
disclosed that she conceived through R.W.2 which had resulted in the
birth of her second child, now alive. The learned Judge observed that the
temporary cessation of relationship between the respondent and her
paramour cannot be said to be due to the fact that the respondent has
returned to a life of purity or that she has turned a new virtuous life……
Further more, there was no evidence that she ever repented or attempted
to obtain any pardon from her husband. It was finally concluded by
observing that the petitioner had established that the respondent was
leading a continuous adulterous life and also was living in such adultery
even at or about the filing of the application for maintenance. It is not
necessary that the wife should live in adultery as on the date of the
petition. It is the evidence as a whole that has to be taken into
consideration.
In Mariyumma v. Mohd. Ibrahim, 2 it was observed:
“Section 125(1) of the new Code obliges a person who refuses or
neglects to maintain a woman who has his wife and who had been
divorced to maintain her if she is unable to maintain herself. Such
obligation is to last unless she remarries. The scope of the term
“wife” is enlarged to take in the case of such a woman and this is
by Explanation (b) to Section 125(1). Explanation (b) to that Sub-
section reads thus:
“Explanation:— For the purposes of this Chapter:—
(a) ……………………
(b) “wife” includes a woman who has been divorced by, has
or obtained a divorce from , her husband and has not
remarried.
The effect of the Explanation is evidently to read the term ‘wife’
in Chapter IX of the Code as meaning not only the wife as
generally understood but also a woman who has been divorced
but who has not remarried. In may be noticed that Section 125(1)
deals with the obligation of a “person” and not of a husband or of
a father or of a son. The scope of the Explanation is not to create
a jural relationship between the divorced woman and the
erstwhile husband. No new obligation outside the scope of the
Code is sought to be imposed either on the divorced woman or
her erstwhile husband by reason of the Explanation. The object of
the Explanation is only to enable such a divorced woman to claim
maintenance from her erstwhile husband until her re-marriage.
The very object of the provision in Section 125 of the Code is to
1 1980 Crl.LJ. 354.

2 AIR 1978 Ker. 231.
provide for a minimum obligation on the part of a person to

maintain his wife, children, parents and his divorced wife who is
not remarried under certain circumstances.”
A woman whose martial tie does not subsist cannot be guilty of
adultery much less can she be said to be living in adultery. She may live
a promiscuous life, but that would not render her guilty of adultery, for
‘adultery’ is a term that denotes an offences against the institution of
marriage. It is only under the inclusive definition of “wife” in Section
125(4) the divorce is entitled to claim. When the “wife” includes
“woman” who has been divorced, the incidents that accrued to the term
“wife” also must follow. A divorcee cannot take advantage of the
inclusive definition of “wife” and can claim maintenance even though
she was living in adulteries after the divorce to the knowledge of on and
all. The other incidents and the liabilities that have to be attached to the
term “wife” shall also follow in the event of claiming maintenance from
her former husband. A divorcee cannot commit an offence of adultery as
such, but if we take into consideration the inclusive definition and if we
give her the status of wife for the limited purpose of claim. There is no
difficulty to extend the same analogy to the offence that has been
committed by her which may attract the ingredients of adultery, if she
was not divorced. If the divorcee has to be treated as a wife, her living in
adultery after the divorce also has to be taken into account. There need
not be a specific provision that the divorcee is not entitled for
maintenance, is she lives in adultery. What considerations have to be
taken into account by applying Section 125, 126 and 127, Criminal
Procedure Code with regard to wife also, have to be applied in the case
of a wife who claims the benefit or the advantage that accrued to her
after the divorce, by virtue of Explanation (b) to Section 125, Criminal
Procedure Code. When the inclusive definition is there and the right to
claim arose under the inclusive definition and the wife claimed right on
that basis, the offences which she committed will generally fall if she
was treated as a wife also have to be taken into consideration. 1
If the wife was living in adultery and continues to live in adultery
even after the divorce, she is not entitled to claim maintenance on the
ground that she has not remarried. The legislature never contemplated
that what normally a wife is not entitled, would be given to the divorce
the benefit under the provision of Section 125, Criminal Procedure Code.
If a divorcee who is leading a promiscuous life approaches the court for
maintenance, she is not entitled for maintenance on the basis of the
inclusive definition of “wife”. What normally could not have been
1 Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP.

granted in the normal course to a wife, could not be expected to be

granted to a divorced wife in whose favour a limited benefit has been
conferred under the inclusive definition of Section 125 Explanation (1)
(b) of the Criminal Procedure Code. 1
Agreement to live separately

In one case the wife had launched the criminal prosecution
against the husband for the offence of bigamy. That case was dismissed
as she could not produce evidence. Thereafter the husband filed a
petition for dissolution of marriage alleging unchastely to the wife shows
that she was subjected to cruelty. Having alleged unchastely to the wife,
he failed to substantiate that ground. It was held that even assuming that
the finding of the Civil Court is binding, the finding is that the wife had
deserted the husband for more than three years prior to the presentation
of the petition in pursuance of an agreement, with her consent, that may
be a ground for dissolution of marriage, but does not afford a ground for
refusing award of payment of maintenance to the wife from the date of
the petition. The act of living separately is not by mutual consent when
as per agreement, the mutual consent is only for taking divorce. In the
absence of any allegation that the wife had means to maintain herself, it
was held that the liability of the husband to maintain the wife is not
discharged. 2
Refusal by the Courts to entertain the application of the applicant
on the ground that she had accepted a sum of Rs. 1500/- as full and final
settlement of her claims cannot be upheld. 3
Annulment of marriage
The right of the wife to maintenance depends upon the
continuance of her marriage status and once the status of husband and
wife is declared to be null and void, the effect would be the same as in
the case of void marriage under Section 11 of the Act. The legislature
has given the benefit of the provisions of Section 125 Cr. P.C. to a
divorced woman as long as she did not remarry by including Clause (b)
of the Explanation, but, not such provision has been brought in so as to
apply in the case where the marriage is declared null and void. The
legislature decided to bestow the benefit of the section on a illegitimate
child by express words, but, none are found to apply to a de facto wife
where the marriage is void, ab initio or voidable and declared void by a
decree of nullity. The benefit of maintenance under Sub-section (1)(a) is
1 Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP.

2 K. Ramakrishna Reddy vs. T. Jayamma, I (1992) DMC 146 AP.
3 Molyabai vs. Vishram Singh, II (1992) DMC 33 MP.
Disabilities depriving maintenance—Co-habitation by divorced wife 143
available only if the applicant is the wife of the person concerned.

Therefore It was held that the distinction drawn by the learned
Magistrate that the marriage in the instant case being voidable, the wife
was entitled to get the maintenance even after the decree of nullity was
wholly erroneous in law. He should have given the effect to the decision
of the Civil Court and on the basis of that, the proper course was to
cancel the order of maintenance. 1
Cancellation
The order of cancellation under Sub-section (2) of the Section
127 Cr. P.C. normally is effective prospectively. The language of Sub-
section (2) of Section 127 empowers the Magistrate to cancel or vary the
order according to the decision of the competent Civil Court and till then
the order passed by him remains effective. So far the language used in
the provision, was stated that the order that may be passed under Sub-
section (2) of Section 127 shall be prospective in operation. 2
Co-habitation by divorced wife

The normal rule for a wife is to live with the husband. It is the
husband’s right to have her company and, therefore, a corresponding
liability of the wife to fulfil that obligation. This also is confined to a
wife properly so-called, but in the case of a divorced wife, this normal
assumption can never be invoked. She, from the very nature of severance
of the bonds of marriage, expected to live separately and the question of
consent or no consent in the matter of separate residence does not stand
envisaged or conceived. 3
While making provision for this third part of sub-section (4), the
Legislature was carving out an exception to the normal situation. It,
therefore, provides that a wife who is normally expected to stay with the
husband under the common roof and thereafter claim maintenance will
not be entitled to claim maintenance if the common roof is not shared by
them because of their mutual under standing or contract or consent. To
me it appears that like the second part of sub-sec. (4), this third part is
also confined to the wife proper and not to a divorced wife. The third
part pre-supposes as a necessary condition the normal situation of
cohabitation between the male and the female, who are tied together by
marital bonds. While dealing with an exceptional special situation the
Legislature provides that if this normal cohabitation is avoided by
mutual consent, then that mutual consent will go to rob the woman of her
1 Madan vs. State of Rajasthan, I (1993) DMC 71 Raj.

2 Madan vs. State of Rajasthan, ibid.
3 Natvarlal Jekisandas vs. Bai Girja, I (1984) DMC 160
normal right of maintenance provided for and protected by sub-sec. (1)

of Section 125 of the Code. This is the inevitable interpretation of the
third part of sub-section (4) of Section 125. 1
Part 3 of sub-sec. (4) of Section 125, namely, “if they are living
separately by mutual consent” is confined to the case of a wife proper,
and her husband and it has no application to the case of a divorced wife
vis-à-vis her ex-husband. 2
The Code is complete on the topic and any defence against an
order passed under Section 125, Cr.P.C. must be founded on a provision
in the Code. Section 125 is a provision to protect the weaker of the two
parties, namely, the neglected wife. If an order for maintenance has been
made against the deserter it will operate until vacated or altered in terms
of the provisions of the Code itself. If the husband has a case under
Section 125(4), (5) or Section 127 of the Code it is open to him to
initiate appropriate proceedings. But until the original order for
maintenance is modified or cancelled by a higher court or is varied or
vacated in terms of Sections 125(4) or (5) or Section 127, its validity
survives. It is enforceable and no plea that there has been cohabitation in
the interregnum or that there has been a compromise between the parties
can hold good as a valid defence. A statutory order can ordinarily be
demolished only in terms of the statute. That being absent in the present
case the Magistrate will execute the order for maintenance. 3
Conduct of wife
In England in one case a question arose in regard to section
3(1)(g) of the Domestic Proceedings and Magistrates’ Court Act 1978
which contained a provision which, although differently worded was of
the same effect. This provision provided the following as one of the
matters to be taken into consideration:
‘any other matter which in the circumstances of the case the court
may consider relevant, including, so far as it is just to take it into
account, the conduct of each of the parties in relation to the
marriage’.
In Wachtel v. Wachtel, 4 Ormord, J. said:
1 Natvarlal Jekisandas vs. Bai Girja, I (1984) DMC 160

2 Natvarlal Jekisandas vs. Bai Girja, ibid.
3 Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: AIR 1979 SC
442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377:
1979(1) APLJ 31
4 (1973) 1 All ER 113 at 119.
Disabilities depriving maintenance—Conduct of wife 145
“The court can only approach this issue in a broad way. It

should bear in mind the new basis of divorce which recognises
that, generally speaking, the cause of breakdown are complex
and rarely to be found wholly or mainly on one side, and that
the forensic process is not well adapted to fine assessments or
evaluations of behaviour, and that it is not only conduct in
relation to the breakdown which may have to be considered.
Conduct subsequent to the separation by either spouse may
affect the discretion of the court in many ways, e.g. the
appearance of signs of financial recklessness in the husband or
of some form of socially unacceptable behaviour by the wife
which would suggest to a reasonable person that in justice some
modification to the order ought to be made. In my experience,
however, conduct in these cases usually proves to be marginal
issue which exerts little effect on the ultimate result unless it is
such both obvious and gross.”
In delivering the judgment of the Court of Appeal in the same
case Lord Denning MR, picking up the words of Ormord J. 1, said:
‘There will be many cases in which a wife (although once
considered guilty or blameworthy) will have cared for the home
and looked after the family for very many years. is she to be
deprived of the benefit otherwise to be accorded to her by Section
5(1)(f) because she may share responsibility for the breakdown
with her husband ? There will no doubt be a residue of cases
where the conduct of one of the parties is in the judge’s words
(1973) 1 All ER 113 at 119, “both obvious and gross”, so much
so that to order one party to support another whose conduct falls
into this category is repugnant to anyone’s sense of justice. In
such a case the court remains free to decline to afford financial
support or to reduce the support which it would otherwise have
ordered. But, short of cases falling into this category, the court
should not reduce its order for financial provisions merely
because of what was formerly regarded as guilt or blame.’
In Armstrong v. Armstrong,2 a decision of the Court of Appeal, which
was cited by Wood J in Kohosinski v. Kokosinski,3 Buckley LJ said:
‘The expression “obvious and gross”, as I ventured to say in the
course of the argument, obviously is not a definitive expression.
The Court of Appeal there, I think, indicated clearly what they
had in mind by the use of those words, which they borrowed from
the judgment of Ormrod (in Wachtel) which was there under
appeal. They said in the judgment of the court that it was not
right for a court before whom an application came under Section
4 of the Matrimonial Proceedings and Property Act, 1970 to
1 (1973) 1 All ER 829 at 835-836

2 (1974) 118 SJ 579.
3 (1980) 1 All ER 1106 at 1116.
conduct a post-mortem into the matrimonial affairs of the parties;

but that, if the conduct known to the court was such that it would
be repugnant to anyone’s sense of justice to say that it ought not
to be taken into account in considering what financial provision
should be made by one party for another, it was proper that it
should be taken into account.’
Stephenson LJ., in the course of is judgement said:
‘On the first point as to the wife’s conduct, bearing in mind what
was said by Ormrod J and by Lord Denning MR in giving the
judgment of this court in Wachtel v. Wachtel, 1 and what was said
by Cairns and Roskill JJ in Harnett v. Harnett, 2 the question we
have to ask ourselves seems to me to be: Would it offend a
reasonable man’s sense of justice that this wife’s conduct should
be left out of account in awarding her maintenance by a lump sum
out of the proceeds of this sale and that it should have no effect
on the financial provision which the husband ought to be ordered
to pay her ? Would it be inequitable or unjust to disregard her
conduct?”
The trial Judge had found that by far the greater burden of
responsibility for the failure to start the marriage was on the wife, but
decided that the conduct did not quite reach the pitch which would
render it within the description in Wachtel v. Wachtel. On appeal Sir
John Pennycuick 3 held:
‘I do not think the Judge was right when he held that the wife’s
conduct in this matter, as he found it as a fact, was not obvious
and gross misconduct in relation to this marriage. I find it
difficult to think of any conduct more gross than totally to fail to
set up any married life at all where it is not fault of anyone else,
but for the reasons which the judge held to be predominantly her
own fault. It seems to me that that was a gross and obvious
misconduct and once that is accepted then the whole attack on the
judge’s conclusion goes, though he may not have reached that
conclusion be quite the right route. I suspect that the word
“gross” has given rise to some misunderstanding in this
connection, and that the word “gross” has been given an
imputation of moral blame. In fact, I do not think the word
“gross” really carries any sort of moral judgment. It means I think
no more than “of the greatest importance.”
Section 3 of the 1978 Act was concerned with the exercise of
discretion, and once it is established that the facts are such that the case
is capable of coming within the test set out in the cases above, the
1 (1973) 1 All ER 829.

2 (1974) 1 All ER 764.
3 Seee (1977) 2 All ER 705 at 711
Disabilities depriving maintenance—Restitution of conjugal rights 147
appellate court should not interfere with the discretion of the magistrate
unless it is clearly satisfied that they were wrong. 1
Consent to live separately

Right granted to the wife and children for maintenance under
Section 125, Criminal Procedure Code is very serious and valuable right.
There must be cogent evidence to show that this right had been given up
by the wife or the child’s mother as the case may be. Husband has not
stated about the differences between them which had made their living
together impossible and therefore, document cannot be viewed as
operating as mutual consent between them for their living separate. 2
Restitution of conjugal rights

It is not expected, either by construction of the decree or
according to custom generally prevalent among the Hindu that the wife
herself would go and report to her husband at his house for restitution of
conjugal right. The was, therefore, under legal obligation to take back
the plaintiff as he was guilty of the withdrawing himself from the society
of the plaintiff for which a decree for restitution of conjugal rights has
been passed against him. 3 In this case instead of making any effect to
obey the decree it appeared that the advocate for the defendant filed
hazira in Court and on that date the Court passed an order that the
present plaintiff did not turn up and therefore, she may execute a decree
if she so likes. It was held that the oral evidence adduced on behalf of
the defendant does not prove that there was any bona fide attempt by the
defendant to bring the plaintiff to his house. The conduct of the
defendant, therefore, amounts to abandoning the plaintiff without
reasonable cause and against her will. In this view of the matter the wife
is entitled to claim maintenance from the defendant. 4
The conduct of the parties would always be relevant in such cases
because the rights and obligations of the parties to a marriage are mutual
and reciprocal and where a party claims the right of maintenance, it is
expected to discharge his or her martial obligations in a proper manner.
A decree for restitution of conjugal rights against the petitioner may be a
circumstance enabling the Court to judge the conduct of the parties, but
there is no authority for the proposition that such a decree against the
1 Robinson vs. Robinson, 1 All ER 391 (CA): (1983) II DMC (BJ) 33.
2 Harvinder Kaur vs. Paramjit Singh, 1999(1) HLR 260 P&H.
3 Laxmi Sahunai vs. Maheswar Sahu, AIR 1985 Orissa 11: (1984) 1
Orissa LR 518: (1985) 2 DMC 176.
4 Laxmi Sahunai vs. Maheswar Sahu, ibid.
petitioner would be a complete bar to his or her claim for permanent

alimony or maintenance. 1
The matter was considered by Balraj Tuli, J. as far back as 1974
in Atma Ram Sharma v. Manjit Rani alias Ram Murti 2 and it was held
that when there was a decree for restitution of conjugal rights passed by
a Civil Court in favour of a person against his wife which was not being
complied with, the wife could not apply to the Magistrate for the grant of
maintenance under Section 488 of Criminal Procedure Code (old Code).
The Magistrate was not justified in granting maintenance allowance.
Similar view was taken by K.S. Tiwana, J. in Surjit Singh v. Gurmel
Kaur and others, 3 and Joginder Singh v. Dalbir Kaur alias Balbir Kaur. 4
Therefore ihas been held that the wife could not be allowed maintenance
under Section 125 of the Code of Criminal Procedure for the simple
reason that a decree for conjugal rights was passed against her which was
not being complied with. 5
A wife, who during subsistence of marriage is disentitled to claim
maintenance because of a decree for restitution of conjugal right on the
ground of desertion against her, commits a wrong if she refuses to
comply with the decree and, therefore, if after the dissolution of
marriage because of her not complying with the decree for restitution of
conjugal rights, she is allowed to claim maintenance, it would
tantamount to allowing her to take advantage of her own wrong which
law has always viewed with disfavour. It is no doubt true that the benign
provisions of Section 125 Criminal Procedure Code was enacted to
ameliorate the economic condition of neglected and discarded wives and
the object was to prevent destitution and vagrancy. But if in spite of such
statutory object, the claim of the wife for maintenance during subsistence
of marriage can be defeated on the basis of a decree for restitution of
conjugal rights on the ground of desertion, it does not stand to reason
that she should be allowed to claim maintenance after the marriage is
dissolved because of her flouting the decree for restitution of conjugal
rights passed against her. 6
Another view is that even if decree for restitution of conjugal
rights is not obeyed wife cannot be deprived of the maintenance
1 Ram Piari vs. Piara Lal P.C.S. Divisional Agriculture Officer,

Patiala, AIR 1970 P&H 341: 1969 Cur LJ 959.
2 1974 Chandigrah Law Reporter 217
3 1977 PLJ 293.
4 1980 PLR 665.
5 Piara Singh vs. Satwant Kaur, I (1989) DMC 472 P&H.
6 Rabindra Nath Roy; In re:, II (1995) DMC 91 Calcutta.
Disabilities depriving maintenance—Demand of separate residence 149
allowance. When these points were not considered such decision 1 is

distinguishable. In this case it was not apparent from the material placed
on record that after obtaining decree of restitution of conjugal rights, the
revisionist moved any execution application for getting it executed. The
appeal was dismissed and more than 20 months had passed but it did not
appear that any step had been taken for getting it executed. In these
circumstances it was held that it may be that decree for restitution of
conjugal rights was obtained only with a view to deprive the wife from
maintenance allowance to which she may be entitled. 2
In Sharadchandra Satbhal vs. Indubal Satbhal, 3 a Division Bench
held that where on a petition by the husband for judicial separation under
Section 10 of the Hindu Marriage Act on the ground that the wife had
deserted the petitioner a decree for judicial separation is passed, the wife
is not entitled to claim maintenance under Section 125 of the Criminal
Procedure Code. When the Civil Court has determined the issue of
desertion and held that the wife has left her husband without reasonable
cause and against his wish and without his consent, it is plain and simple
that she has refused to live with her husband without any sufficient
reason, and therefore, the wife is not entitled to receive maintenance
under Section 125. The fact that a decree for judicial separation has been
passed in favour of the husband on the ground of desertion means that
the wife is guilty of refusing to live with her husband.
In another case the decree of divorce was obtained by the
husband during the pendency of proceedings. On the date on which the
application under Section 125 of the Criminal Procedure Code was made,
the position that there was no refusal and neglect to maintain the wife on
account of wife’s deserting the husband has been concluded by the
decree for restitution of conjugal rights. Once one of the essential
ingredients to be established under Section 125(1) was not shown to
exist, the respondent could not have continued these proceedings. 4
Demand of separate residence

In this case the submission was that a wife is entitled to demand
her husband to provide a separate residence where both of them (and
1 1986 A.W.C. 398

2 Charan Singh vs. Jaya Wati, I (1996) DMC 169 All.
3 1978 Mh. LJ 123.
4 Kalidas vs. Parvatibai, I (1985) DMC 511 Bombay; Rahimbi vs.
Mohammed Rahimkhan, II (1985) DMC 56 Bombay: Ramesh
Chandra Mishra vs. Kanchan Bala Mishra, II (1986) DMC 362
Orissa: Sukhminder Kaur vs. Sadhu Singh, I (1984) DMC 354
P&H.
they alone) could live together and bring up a family of their own. No
doubt that may be an ideal condition, but is one not always feasible and
very often impossible, especially when the husband is not financially
well off and has to look after his aged parents. Times are yet to come in
our country when aged parents could be shoved off to infirmaries, be it
that such days are signs of progress as some claim to be of retrogression
as some other view it. In proceedings for the restitution conjugal rights,
courts are to be guided by the fundamental and basic rule of matrimonial
law that it is the right of each spouse to have the society and comfort,
consortium of the other. The husband is entitled to it; equally so, the
wife. So long as the residence of the aged parents of the husband under
the same roof with him is not provocative of creating circumstances
grave enough to subvert, the wife’s right to consortium of her husband,
the court cannot accept the arguments regarding her right to separate
residence with her husband away from his parents. 1
Dependence on parents
In one case the wife was forced to life as parasite with her
parents. She was forced to do agriculture work for her father. This was
considered by trial court to be sufficient means of earning livelihood.
This sort of reasoning and conclusion is nothing but the result of pervert
way of looking at the life. It was held that the learned Magistrate ought
to have realised that one does not live the life of parasite out of volition.
The fact that she is required to live her life as destitute and if she helps
in the agriculture work of her father, it can never be said that she had
sufficient means to earn her livelihood. The fact that she is forced to go
to her parents’ place and live there as parasite itself should be considered
sufficient to hold that she was unable to maintain herself. 2
Dependence on parties
The wife is required to aver that (i) she is the wife of the non-
applicant; (ii) that the non-applicant has sufficient means, yet he is
refusing or neglecting to maintain her; and (iii) that she herself is unable
to maintain herself. However, the Revisional Court completely
misdirected itself in considering the recitals in the application for
maintenance filed by the wife under Section 125 of Criminal Procedure
Code as well as the statements made by her in her deposition. The
applicant in her deposition had stated that “she was not doing any work
and she was completely dependent upon her parents”. It was held that
1 K. Kanthimathi vs. S. Parameswara Iyer, AIR 1974 Kerala 124

(DB): (1974) 1 Ker LJ 22.
2 Bai Laxmiben vs. Bharatbhai Vechatbhai Patel, I (1986) DMC 129
Gujarat.
Disabilities depriving maintenance—Dispute about validity of marriage 151
this statement clearly demonstrates that the applicant in no uncertain

terms deposed that she does not have any means to maintain herself and
is totally depending upon her parents for her maintenance. It was further
held that the Revisional Court completely misread the deposition of the
applicant and further came to a wrong conclusion that the applicant has
not specifically complied with mandatory requirement of Section 125 of
Criminal Procedure Code. Therefore the impugned order was held to be
misconceived and unsustainable in law. 1
Dispute about validity of marriage

In this case the Public records including voters’ lists described
them as husband and wife. The competent witnesses of the village of the
wife as also the husband had supported the factum of marriage.
Witnesses had also spoken about the reputation of the appellant being
known in the locality as the wife of the respondent. It was held that these
facts should not have been totally overlooked while considering the case
of marriage. It is possible that on account of the lawyer’s mistake the
appellant’s witnesses have not referred to the religious rites which might
have been performed at the time of marriage. It is equally possible that
the learned Magistrate while recording the evidence has not specifically
recorded the details and has only indicated that witnesses have spoken to
the fact of marriage. Since the form of marriage has not been found that
traditional marriage according to Hindu law requires performance of
certain religious rites, it was considered proper in the peculiar facts of
the case to remit the matter to the learned Magistrate for a fresh inquiry
at which apart from the evidence already on record both sides should be
entitled to lead further evidence particularly in support of their
respective stands relating to the factum of marriage. 2
It was further held that the role of the Court is not that of silent
spectator or of a passive agency, when a dispute is brought before the
Court, particularly of this type, where maintenance of a neglected wife or
a minor child is in issue, the Court must take genuine interest to find out
the truth of the matter. If the learned Magistrate had asked proper
questions to the witnesses when they were before him and deposing
about the marriage, the relevant evidence would have come one way or
the other. It was also held that the duty of the lawyer appearing for the
appellant also to have played his role properly at the right time. A lot of
1 Bhagirathibai @ Bhagwati vs. Ashok, II (1999) DMC 429 Bombay.

2 Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
Pat LJR 11: 1985(2) Rec Cr R 61
time had been lost and if the wife was entitled to maintenance she had
been deprived of it for all these years. 1
Divorced wife
The disqualification attempted to put forward against wife was
that after the order for restitution of conjugal rights she filed a petition
and obtained an order for divorce from the husband. Such an argument is
not available to the husband in view of the extended definition of ‘wife’
mentioned above. It is immaterial as to who moved for divorce. The
extended definition includes within its ambit a lady, who has divorced by
her husband as well as one who obtained a divorce from her husband on
her own violation in spite of the opposition from the husband. If so, a
divorce by mutual consent must also come within the provision and a
wife who joined with the husband in effecting divorce also will come
within that definition. In order to put forward a claim for maintenance as
a divorced wife, it is immaterial how the divorce came into being. If she
has no disability in claiming maintenance under any other provision, her
claim must stand. 2
Originally, the Hindu marriage, succession, minority
guardianship, adoption and maintenance were part of the Hindu Code
Bill and later on they took statutory form by different Acts, but
Legislative intention to provide maintenance to spouse even after divorce
which is contained in Section 25 of the Hindu Marriage Act, has to be
read into both the sections and provisions in both the Acts. Same
Legislature cannot be imputed with two different intentions in respect of
the same couple on the same question. Under Section 25 of the Hindu
Marriage Act, if the provision regarding maintenance is to be applicable,
both to a wife and a divorced wife, there is no reason why the same word
“wife” which is used in Section 18 should not be read in the same
manner because both these provisions deal with the question of
maintenance between a husband and wife. Under Section 25 of the Hindu
Marriage Act, there cannot be any doubt or dispute that the wife would
necessarily include a divorced wife for the purpose of maintenance and
alimony even through the section uses the word “wife” or “husband” and
not “divorced wife” or “divorced husband” and it also provides for
maintenance not exceeding the life of the applicant. Similarly, in Section
18 of the Hindu Adoptions & Maintenance Act, 1956, though the words
1 Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
PatLJR 11: 1985(2) Rec Cr R 61
2 Mampekkattu Nanu vs. Mampekkat Vasantha, II (1986) DMC 109
Kerala.
Disabilities depriving maintenance—Divorced wife 153
used are “wife and husband” the maintenance is provided by the husband
during the lifetime of the wife. Thus, the scheme of both these sections is
the same; the purpose is the same; the words used are the same.
Therefore, when the word “wife” in Section 25 of the Hindu Marriage
Act includes a divorced wife, so also in Section 18 of the Hindu
Adoptions & Maintenance Act, the word “wife” has to be interpreted to
mean a divorced wife. Any other construction would lead to anomalous
and contradictory situations and orders. If the wife makes an application
under Section 25 of the Hindu Marriage Act for maintenance even after
divorce, that would be maintainable, but if she makes an application for
the same purpose under Section 18 of the Hindu Adoptions &
Maintenance Act, it would not be maintainable even though both the
provisions have same purpose in mind and the same intention to provide
maintenance to the wife. Therefore, it was held reasonable to hold that
the words “wife” and “husband” are used to describe the relationship to
provide for maintenance during the life-time of the wife and it includes a
divorced wife and by doing so, there is no violation done of the language
or the meaning because the meaning is always to be taken from the
context and intention. For example, a married woman living happily with
her husband with her husband can be held to be a widow on the question
of succession to the property of her former deceased husband and by
describing her as widow, there is no evidence done to her present marital
status of having a husband and happily living with the husband because
the meaning has to be given in the context of the purpose and the
intention. Similarly, when a question of maintenance arises between a
husband and a wife, it arises only in a situation where there are serious
disputes between the husband and a wife and which may arise before
divorce or thereafter and the Legislature makes the provision for the time.1
It is not every divorced wife who can claim maintenance under
Section 125(1) of the Code. A woman who has been divorced by her
husband is included in the first part of Explanation (b) to Section 125(1).
She can claim maintenance under Section 125(1). It this category would,
normally, fall the case of a Muslim women who has been unilaterally
divorced by her husband in accordance with the Muslim Personal Law.
This category may also include a woman who, under the customary law
applicable to some Hindus, has been unilaterally divorced by her
husband. The second category falling under Explanation (b) to Section
125(1), who can claim maintenance under the said section, consists
of a woman who has obtained divorce from her husband meaning
1 Vihalal Mangaldas Patel vs. Maiben Vihalal Patel, I (1996) DMC

432 Gujarat.
thereby that the wife has initiated proceedings for obtaining divorce
from the husband. 1
Earning wife
There is social and moral obligation of the husband to maintain
his wife and child and not to leave them at the mercy of her parent.
Where the wife is a qualified lady and even if she is making an attempt
to earn some money to bring up her child in a better way, this would not
be a factor which would disentitle her from claiming maintenance for
herself as well as for her child from the husband because she is entitled
to live the same lie in terms of social and financial status in which she
would have enjoyed if the continued to live with her husband. Whether
he was forced to leave the matrimonial home because of the cruelties of
husband or was it her act of desertion is the matter which has to be
decided by the Court at the time of final decision of the main petition. 2
In another case the wife filed the revision petition praying for
enhancement of maintenance pendente lite as well as litigation expenses.
It was not denied by the wife even in the revision that the husband was
maintaining the minor child. She had also not disputed the fact that she
was M.A. in Economics. In these circumstances, it was held that it is
difficult to believe that the wife is not having any income whatsoever.
Presumption of reasonable conduct and capacity to earn reasonably are
equally applicable to either of the spouses to the marriage. There is an
obligation on the part of the husband to maintain his wife but he
certainly cannot ignore his other obligations and such maintenance
cannot be at the cost of every other moral and legal duty which the
husband may owe towards his minor child and his parents. 3
Effect of caste
The claim of maintenance cannot be defeated on account of caste
of the woman. This position remained unaffected by provisions of Hindu
Adoptions and Maintenance Act, 1956. Concubine has a right to seek
maintenance. A Brahmin woman and her illegitimate son of Sudra father
are entitled to maintenance from the Estate after the death of father. 4
1 Bhagwan Raoji Dale vs. Sushma @ Nanda Bhawan Dale, 1999(1)

HLR 579 Bombay.
2 Prem Kumari vs. Om Parkash, I (2001) DMC 399 P&H.
3 Kuldip Kaur @ Charanjit Kaur vs. Karam Singh, II (2000) DMC 691
P&H.
4 Amireddy Raja Gopala Rao vs. Amireddi Sitharamamma, AIR 1965
SC 1970: 1965(2) SCWR 889: 1965(3) SCR 122
Disabilities depriving maintenance—Fixed properties 155
Explanation for living separately

In the face of explanation and the admission by the husband that
he had contracted second marriage, the Judicial Magistrate was held to
be legally in error in holding that the wife was living separately from the
husband without sufficient reason. 1
Fixed properties
In the normal course the Court should have granted maintenance
to the wife also having regard to the earning capacity of the husband but
what weighed in the mind of the Court was that there is a house in the
name of the wife which has been sold for Rs. 2 Lacs and, therefore,
according to the trial Court she is not without any income. The flat in
was purchased in her name on the basis of the power of attorney but it
does not show that it belongs to her. It is also not shown as to from
where the assets have come to the wife for the purchase of the flat. It is
admitted by the husband that he gave Rs. 20,000/- and the balance
amount was spent by the father of the petitioner’s wife. Which money
appeared to have been returned. It was held that at any rate the wife is
without any income and it is the duty of the husband to provide
maintenance to her in addition to the child. The wife had asked for
Rs. 1,000/- per month for herself and the child Rs. 2,000/- for litigation
expenses. Having regard to the fact that the respondent husband is also
only drawing Rs. 2300/- it was held to be expedient in the interest of
justice to direct the husband to pay to the wife Rs. 400/- as maintenance
and Rs. 300/- as maintenance of the child already granted by the trial
Court i.e. Rs. 700/- in all with Rs. 1,000/- towards litigation expenses. 2
Section 24 states that where in any proceedings under the Act, it
appears to the court that either the wife or the husband, as the case may
be, has no independent income sufficient for her or his support and the
necessary expenses of the proceedings, it may, on the application of the
wife or the husband order the respondent to pay to the petitioner the
expenses of the proceeding and monthly, during the proceeding such sum
as having regard to the petitioner’s own income and the income of the
respondent, it may seem to the Court to be reasonable. If the wife or the
husband, as the case may be, has no independent income sufficient for
her or his support and necessary expenses of the proceeding, the court
can pass appropriate order having regard to the income of the spouses. It
would be worthwhile to compare the provision in Section 24 with that in
Section 25 dealing with permanent alimony and maintenance. That
1 Islam Bi vs. Nawab Khan, I (1992) DMC 270 MP.

2 Indu Gupta vs. Sanjay Kumar Gupta, I (1992) DMC 164 Del.
section requires the court to have regard to the income and other
property of the spouses. It is significant to note that Section 24 refers
only to income and not other property. Therefore, in considering a case
arising under Section 24 of the Act, it is only the income and not other
property which requires to the considered. 1
Illegitimate child
The questions whether the one claimant was the married wife of
the respondent and whether the other claimant was the legitimate or
illegitimate child of the respondent, are pre-eminently questions of fact.
The learned Magistrate after considering the evidence, as adduced by the
parties, held that the appellant No. 1 was not the wife of the respondent.
He further held on the basis of the evidence on record that the appellant
No. 2 was the illegitimate child of the respondent. After considering the
evidence on record it was held that the learned Judge of the High Court
committed an error in making a re-assessment of the evidence and
coming to a finding that the appellant No. 2 was not the illegitimate
child of the respondent. The High Court in its revisional jurisdiction was
not justified in substituting its own view for that of the learned
Magistrate on a question of fact. 2
Illegitimate wife
For a woman claiming maintenance under Section 488, Criminal
Procedure Code it is essential for her to establish that she was the wife of
the opposite party in accordance with the provisions of the personal or
the Civil law applicable regarding the marriage between the parties. It
follows, therefore, that what is contemplated by the term ‘wife’ referred
to in Section 488, Criminal Procedure Code is legally wedded wife in
accordance with the Personal Law of the parties or the Civil Law
governing the marriage between the parties. It would not, therefore,
cover the case of a women whose marriage with the respondent is void
ab initio being in contravention of the personal or the Civil Law
governing their marriage. A woman would be deemed to be a wife for the
purpose of this section to be that woman who is a legitimate wife by
reason of a valid marriage according to the law governing the parties. It
the legislature had intended to give the benefit of this section for the
grant of maintenance to all such woman who were not legally wedded
wives but otherwise married to the respondent, then no distinction could
1 Hema vs. S. Lakshmana Bhat, II (1986) DMC 235 Kerala: 1985

Ker LJ 681: ILR (1986) 1 Ker 288: (1986) 2 Hindu LR 14: AIR 1986
Ker 130.
2 Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986(1) Scale 603:
1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj LJ 788.
Disabilities depriving maintenance—Independent income of wife 157
have been made between the wife and the child, held entitled to claim
maintenance by making a reference of entitlement to “legitimate or
illegitimate child.” It becomes very clear from the expression used in the
second part thereof were a reference is made to “legitimate or
illegitimate child” who can claim maintenance under Section 488(1) of
the Code. The legislature was clear in its mind to apply this provision in
respect of child either legitimate or illegitimate born of a woman
neglected or refused to be maintained by his or her father. If it was
intended to include any illegitimate wife, the legislature could have said
so, just as it said in respect of children. It follows therefore, that no
illegitimate wife or a woman claiming to be the wife whose marriage is
ex facie illegal can claim any maintenance under this section. 1
If it is held that any woman who has solemnized the marriage
with the respondent would be deemed to be a wife for the purposes of
this section, the same would amount to doing violence to the provisions
of Section 488, Criminal Procedure Code and would also lead to
disastrous results which would be against the public interest and the
social object sought to be achieved by making a provision attaching
sanctity to the institution of marriage. Law cannot be interpreted in a
manner which leads to immorality by permitting the woman to lead
immoral life with the hope that if subsequently deserted, they would be
entitled to claim maintenance for leading immoral life with the man. 2
Independent income of wife

Where income of wife is not proved to be less then the husband,
the wife is not entitled to maintenance. 3
Where it was stated that the wife had completed her Law
education and had started practice, it was held that no case was made out
for interference with the quantum fixed either for the maintenance or for
the expenses of the proceedings. It was further held that this was a clear
case where the wife had no independent income sufficient for her support
and the necessary expenses of the proceedings as contemplated by the
provision of Section 24 of the Hindu Marriage Act. The husband has not
come out with a definite case about his income and has merely tried to
find fault with the finding of the learned trial Judge. Indeed, it is not
even suggested that the wife, who had joined the legal profession last
year, has independent income sufficient for her support and for the
necessary expenses of the proceedings. Thus, having regard to the
1 Titroo vs. Mst. Morni, II (1988) DMC 162 J&K.

2 Titroo vs. Mst. Morni, ibid
3 Suresh Kumar vs. Kamaljit Kaur, 1985 (9) DRJ 68.
income of the husband and the position of the wife, it was held that there
is no reason to interfere with the findings of the learned trial Judge. 1
Normally, application under Section 24 of the Hindu Marriage
Act, 1955 should be decided only on the bass of the affidavits but in the
peculiar facts and circumstances of this case where both the parties have
not placed the material on record for the just determination of the income
of the wife and the husband, the matter required fresh determination and
was therefore remanded. 2
The claim of the petitioner-wife for maintenance pendente lite
was declined, primarily on the ground that she is earning a sum of
Rs. 1500/-per month and, therefore, was not entitled to any maintenance.
But it was held that the wife is entitled to maintenance pendente lite for
maintenance of her two minor children, who were admittedly living with
her. The husband is bound in law to maintain his minor children. He has
sufficient means and, therefore, is liable to pay some amount for
maintenance of the two minor children, but the wife is not entitled to any
maintenance pendente lite as she was already earning a sum of
Rs. 1500/-per month. 3
In another case, except the ipse dixit of the revision petitioner
there was no proof forthcoming to show that the respondent is drawing
salary of Rs. 1687.50 from her employment in a school. The wife denied
the said payment of Rs. 1,687.50 by the school but she has stated that she
is paid a sum of Rs. 20.- per day if she went to the said school to attend
to the duties of an “Aya”. Therefore the contention of the revision
petitioner that the respondent herein is living in affluent circumstances
drawing a monthly salary of Rs. 1,687.50 is not entitled to any
acceptance in this case was not accepted and it was held that the
maintenance payable to the respondent by the revision petitioner and the
order of maintenance passed against the revision petitioner cannot be
cancelled under Section 127 of Criminal Procedure Code. 4
If a wife is being paid social security benefit or supplementary
benefit, as the case may be, the amount could be recovered from the
husband if he was in that country because after all it was the duty of the
husband to maintain his wife and the child if they had no independent
1 Vinod Kumar Kehriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32

Bom: 1992 (2) Bom CR 648: 1993 (1) Civ LJ 854: 1993 (1) Cur CC
69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bombay
160.
2 Sushma Bawa vs. Ravinder Nath, I (1992) DMC 455 P&H.
3 Arti Chopra vs. Sudhir Chopra, I (1993) DMC 58 P&H.
4 Saleem Basha vs. Mumtaz Begum, II (1999) DMC 206 Madras.
Disabilities depriving maintenance—Inherited fixed assets 159
income sufficient for their support and the necessary expenses of the
proceedings. State funding of social security programme is at the cost of
taxpayers’ money. If the husband is in that country where the wife is also
living he can be burdened with expenses which the State is incurring for
payment of social security benefit to his wife and child. Merely because
husband is living in this country and the Government of a foreign
country does not or is unable to enforce a claim against the husband,
which it could have done in its own country, there is no reason why the
husband living in this country should escape his responsibility and
obligation imposed upon him under the law. Therefore the supplementary
benefit or social security benefit conferred on a spouse in a foreign
country should not be taken into consideration while deciding the
application under Section 24 of the Act. Whatever amount is awarded to
the spouse under this section, to that extent the social security benefit or
supplementary benefit would abate, subject, however, to the condition
that the balance of the income of the spouse in this country should not be
less than the standard laid (not the amount) for grant of social security
benefit or supplementary benefit allowable to the spouse in the foreign
country. This would also be further subject to the condition that the
claim of the spouse in this country as regards his expenses, is taken into
account. 1
In another case it was claimed by the husband that the wife
derives income from tuition and some knitting work which she does in
addition. The mere fact that the income from the father’s shop is taken
into account for deciding the means of the wife is sufficient to show that
the finding on this question is vitiated. It was therefore held that that in
these circumstance it is unnecessary to examine the other meagre sources
mentioned by the husband which may have been adopted for the time
being by the wife to save herself from starvation. This part of the order
was therefore set aside. 2
Inherited fixed assets

The property and income of the wife which can be taken into
account under the Hindu Marriage Act is the property and income which
is exclusively that of the wife. It is not proper to take into account the
possibility of the wife inheriting property from her relation like
the father. 3
1 Vijaylaxmi vs. Majit Singh Bhalla, I (1989) DMC 495 Delhi.

2 Gayatri Devi vs. Laxmikant, II (1986) DMC 214 MP.
3 Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB).
But in another case when the wife did not deny specifically the
property inherited by her from her father, the allegation of the husband
was taken as correct. It was held that it was within the special knowledge
of the wife regarding the actual income received from the house. In the
revision petition filed by the husband an effort was made to produce
material that from the said house there was income of about Rs. 1,650
per mensem, but it was not considered appropriate at that stage to make
any enquiry regarding the actual income from the said house which is
stated to be with the tenants. It is the wife who is to suffer on that
account as she did not disclose about the house owned by her and the
income derived by her there from. She was supposed to approach the
Court with clean hands and when she had concealed the source of
income, and particularly in view of the broad facts on which the petition
has been filed i.e. concealment of her previous marriage by obtaining
consent of the present petitioner for marriage, she disentitled herself for
the interim maintenance during pendency of the proceedings. 1
Invalid marriage
The attempt to exclude altogether the personal law applicable to
the parties from consideration should be repelled. The section 125 of
Criminal Procedure Code, 1973 has been enacted in the interest of a
wife, and one who intends to take benefit under sub-section (1)(a) has to
establish the necessary condition, namely, that she is the wife of the
person concerned. This issue can be decided only by a reference to the
law applicable to the parties. It is only where applicant establishes her
status on (or) relationship with reference to the personal law that an
application for maintenance can be maintained. The appellant cannot rely
on the principle of estoppel so as to defeat the provisions of the Act. So
far as the respondent treating her as his wife is concerned, it is again of
no avail as the issue has to be settled under the law. It is the intention of
the legislature which is relevant and not the attitude of the party. The
marriage of a woman in accordance with the Hindu rites with a man
having a living spouse is a complete nullity in the eye of law and she is
not entitled to the benefit of Section 125 of the Code. 2
Justification to live separately

The husband deposed that only with the consent of the first wife
he married again. The first wife stoutly denied the suggestion that she
1 Brijinder Bir Singh vs. Mst. Vinod @ Parminder, I (1992) DMC 591
P&H.
2 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR
1988 SC 644: 1988(1) SCC 530: 1988 SCR 809: 1988(1) Scale 184:
1988(1) JT 193.
Disabilities depriving maintenance—Justification to live separately 161
gave consent to the respondent. The evidence on record clearly showed

that either under cl. (d) or cl. (e) of sub-sec. (2) of Section 18, the first
wife had a right to live separately without forfeiting her claim
for maintenance. 1
The fact that a wife puts up with violence from her husband for
over a period of a year is no reason to justify a finding that on the last
occasion when she decided that she could tolerate it no longer, she was
not entitled to pray in aid this section to indicate that her husband’s
behaviour was such that she should not reasonably by expected to live
with him. 2
For awarding maintenance to a wife living separately, the Court
has to come to the conclusion that she is justified in living separately. 3
In a case of maintenance under Section 125 Cr.P.C. the husband
deposed in such a manner as if it were a case of divorce. He said in his
depositions that his marital relation with wife remains now only as his
ceremonial wife. He further deposed that he lived as husband and wife
minus conjugal life and that there was no free and fair marriage between
him and his wife. He explained what he means by “free and fair
marriage” as that the wife was not given to him as a wife as she lacked
certain feminine qualities. To a query put by the trial Court he had stated
that his wife was disabled for being a wife and according to his personal
opinion the marriage was not free and fair as she failed to respond to his
conjugal demands. Like a Hindu marriage, a Christian Marriage is also a
sacrament. If there by any, diriment impediment it will render a person
incapable of validly contracting a marriage and, therefore, before the
celebration of a marriage they are bound to reveal to the parish priest or
the local Ordinary such impediments as they may know about. In the
case in hand a valid Christian marriage has been solemnised. Both the
spouses had the occasion of knowing each other before the marriage and
there is admission from the side of the husband that before the
celebration of the marriage they had been to the church on 3 occasions.
Monika has forcefully asserted that she had conceived to co-habitation
with Issac. In her cross-examination had stated that she informed her
husband in the last part of April 1988 about the fact that she had
conceived and that the baby in her womb was two months old when she
suffered the abortion. Dr. P.R. Sarkar was not examined as a witness on
1 A. Bhagavathi Ammal vs. Sethu, AIR 1987 Madras 224: (1987) 100
Mad LW 419: (1987) 18 Lawyer 25: (1987) 2 DMC 292: (1987) 2
Cur CC 871.
2 Bergin vs. Bergin (1983) I All ER 905: (1983) II DMC (BJ) 28.
3 N.P. Abu vs. Vellan Thotti Asma, 1999(1) HLR 32 Kerala.
the side of Monika to prove that he gave some medicine which aborted
the foetus in the womb of Monika. As such it was difficult to come to a
definite conclusion as to whether such an abortion really took place.
There is of course, admission on the part of the Monika that she was
under the treatment of a doctor and that her husband also had borne some
medical expenses. However, she had stated in her cross-examination that
she had no objection to be examined by a medical expert. In this back
ground it was held as under:
‘As such the ball is now in Issac’s Court. Inspite of all evidence
on record, the Court is in the dark as to the real state of affairs
that stands like the Berlin Wall between the newly married
couple. Even the Berlin’s wall is now broken. If the allegation of
the husband regarding Monika’s lacking femininity is true then
surely there is a way out as Monika herself is prepared to undergo
medical examination under an expert physician. If there be any
cosmetic unpleasantness, modern medical science is so advanced
that such an unpleasantness may be set right by use of proper
medicine or by plastic surgery or by any, method known to
modern medical science. Then a day will come when this unhappy
couple may find the true meaning of conjugal life. Having
overcome their traumatic experiences, they may emerge as a
couple rejuvenated. They must not forget that the marriage
according to their faith is a sacrament. There is incontrovertible
proof that without any just cause the husband. having sufficient
means, has neglected and refused to maintain his wife. 1
On the question of drunkenness it was observed that drunkenness
of the husband, particularly of a chronic and excessive character, can
lead to repeated acts of cruelty towards the wife. It is not to be expected
that the wife should be a silent sufferer for ever of such a cruel
treatment. It is true that wife beating had been prevalent from early times
among all classes without distinction. Following reference was made to
the picture portrayed by Frederick Rogers in his book ‘Labour, Life and
Literature’ ‘Memories of 60 years’, holding that it may be a familiar one
irrespective of time or clime:
“wife beating was never a monopoly of working classes and it has
all but disappeared from every form of social life that I know. it
is quite an ancient custom, dating probably from primitive times,
and all classes have indulged in it. there is an entry in the church
books of john bunyan’s chapel at bedford which tells how a
member of the congregation was reprimanded at a church meeting
for beating his wife when she did not deserve it. in the street
where I lived as boy and young man we were is an atmosphere of
1 Issac Harold Gomes vs. Monika Sylvia Gomes, II (1992) DMC 62

Cal.
Disabilities depriving maintenance—Legitimacy of child 163
wife-beating, and yet it was a street that prided itself on its

respectability. at a house next door to so a man flung his wife out
of a ground-floor window, and one man I know, in a good
position if life, intellectual and educated, who was kind to us as a
boy, was in the habit of giving his wife periodical thrashings. nor
female neighbours used to say she richly deserved them and she
certainly was a confirmed divorce. people seldom interfered
between a man his wife, it was a dangerous thing to do as the
contending parties usually joined forces and turned on the person
who interfered with. “and pray, what business is it of yours ?”
Repetitive acts of battering by an alcoholic would justify a wife
entertaining a reasonable apprehension of harm or injury in living with
the husband. Social conditions are such that even after repeated
agonizing situations the woman puts up a façade that everything is
normal in her home. She even builds up an appearance of a happy home,
even while carrying sorrow’s. It is only when even the last straw is
broken, she parts company with the husband and leaves the matrimonial
home. The court while enquiring into the requirement of Section 18(2)(b)
of Hindu Adoptions & Maintenance Act, 1956, should therefore insist
only on such proof as would show that the apprehension entertained by
the complaining spouse is not illusory or imaginary, and that the proved
events objectively viewed, are such as to cause apprehension about a
harm or injury in living with the husband. It is not reasonable to expect
that neighbours would be available, and be ready and willing, to give
useful evidence about such sensitive domestic incidents. Where a
pregnant wife gives evidence about her husband being a drunkard, and
about the repeated sufferings she had at his hands almost regularly, and
when there is corroboration of the ill treatment by her husband, the
requirement of Section 18(2)(b) is satisfied. 1
Legitimacy of child
On the sole ground that the child had been born in about 7
months’ time after the marriage it cannot be concluded that the child
should have been conceived even before the respondent had
consummated the marriage. Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an improbable or impossible
event. It was held that the learned Judge had completely lost sight of
Section 112 of the Evidence Act, lays down that if a person was born
during the continuance of a valid marriage between his mother and any
man or within two hundred and eighty days after its dissolution and the
1 See Siva Raman Rajendran vs. Janaky Sumathy, I (1985) DMC 220
Kerala; Riyasatbi Shaikh Jani vs. Shaikh Jani Shaikh Kasam, I
(1984) DMC 225 Bombay; Satish Kumar Arora vs. Varsha Arora, II
(1983) DMC 445 All.
mother remains unmarried, it shall be taken as conclusive proof that he is

the legitimate son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have
been begotten. This rule of law based on the dictates of justice has
always made the Courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to necessarily
warrant a finding that the child could not at all have been begotten to the
father and as such a legitimation of the child would result in rank
injustice to the father. Courts have always desisted from lightly or
hastily rendering a verdict and that too, on the basis of slender materials,
which will have the effect of branding a child as a bastard and its mother
an unchaste woman. 1
If the wife was pregnant even at the time of the marriage she
could not have concealed that fact for long and in any event the husband
would have come to know of it within two or three months of the
marriage and thereupon he would have immediately protested and either
discarded the wife or reported the matter to the village elders and
relatives and sought for a divorce. On the contrary the respondent had
continued to lead life with the appellant in a normal manner till the birth
of the child. Even the confinement appears to have taken place in his
house as otherwise the child’s birth would not have been registered in his
village. The husband had not disowned the child immediately after its
birth or sent away the wife to her parents’ house. Such would not have
been his conduct if he had any doubt about the paternity of the child.
Moreover, there is an entry in the birth register setting out the
respondent as the father of the child. Though the husband attempted to
neutralise this entry by examining a witness and making it appear that
the entry had been made on the basis of information given by a third
party, the lower Courts refused to give credence to the vague and
uncorroborated testimony of this witness. It is also significant to note
that the husband had allowed eleven months to pass before effecting a
divorce. It was held that by his inaction for such a long period the
husband had given room for inference that the divorce may have been
effected for other reasons and not on account of the wife giving birth to a
child conceived through some one else. It was also held that even if the
child had been born after a full-term pregnancy it has to be borne in
mind that the possibility of the respondent having had access to the
appellant before marriage cannot be ruled out because they were closely
related and would therefore have been moving in close terms. All these
1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237:
1987 All WC 627.
Disabilities depriving maintenance—Living in adultery 165
factors negate the plea of the respondent that the minor child was not
fathered by him. The proper course for the High Court, even if entitled to
interfere with the concurrent findings of the Courts below in exercise of
its powers under Section 482, Cr.P.C., should have been to sustain the
order of maintenance and direct the respondent to seek an appropriate
declaration in the Civil Court, after a full-fledged trial, that the child was
not born to him and as such he is not legally liable to maintain it.
Proceedings under Section 125, Cr.P.C. are of a summary nature and are
intended to enable destitute wives and children, the latter whether they
are legitimate or illegitimate, to get maintenance in a speedy manner. 1
Living in adultery
Assuming for the sake or argument that the wife committed a
lapse in her life and became pregnant which would not mean that she was
living in adultery. A village woman, if she lives in adultery, would never
go unnoticed by the villagers unlike what happens in an urban area. If
the wife was really living in adultery with someone it would have been
definitely come to the noticed of the husband and/or his relatives and in
that case it would not have been at all difficult for the husband to adduce
evidence in that regard. That being the case, the husband miserably
failed to prove that his wife was living in adultery. And it is only when
the husband proves it satisfactorily that the wife was living in adultery
the wife would disentitle herself to maintenance under Section 125 of the
Criminal Procedure Code. 2
In Hiraman Laxman Jadhav vs. Sou. Balubai Hiraman Jadhav 3 it
was observed as under:
‘In order to show that the decision arrived at by the learned
Session Judge, with reference to the evidence relating to the wife
“living in adultery”, has been correctly taken, it is quite
appropriate to refer to some of the decisions rendered by High
Court are:
(1) Pattayee Amma vs. Manickam Gounder 4;
(2) Papammal vs. Dharman; 5
(3) S.S. Manickam vs. Arputha Bhavani Rajam. 6
1987 All WC 627.
2 K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.
3 I (1987) DMC 226 Bombay.
4 AIR 1967 Madras 254.
5 1970 (2) MLJ 81.
6 1979 Madras Law Weakly (Cri) 143.
(4) S. Gulam Mohindeen vs. Rasheeda Fatima Niga Begam; 1

(5) Mathein vs. Maung Myakhin. 2
The essence of judicial pronouncements is to the effect that when
the husband challenges the claim for maintenance of his wife
alleging that his wife is “living in adultery”, the husband should
prove that there is continued adulterous conduct. The phrase
‘living in adultery’ refers to course of guilty conduct and not a
single lapse from virtue.
The term “adultery” is to be understood in the light of the social
ideas of the community as being a serious breach of the
matrimonial tie. “Living in adultery” — mere friendship with a
man does not amount to adultery within the meaning of Section
125(4), Criminal Procedure Code. “Living in adultery” means the
following of a course of continuous adulterous conduct.
While determining the factum of “living in adultery” the Court
must consider evidence on record to ascertain as to whether the
wife was living in quasi-permanent union with a man with whom
she was allegedly committing adultery. It is for the husband to
prove that the wife is continuously committing violation of the
married bed, indulging in adulterous life, by living in quasi
permanent union with her paramour. In other words, “living in
adultery” means an outright adulterous conduct where the wife
lives in a quasi permanent union with a man with whom she is
committing adultery, ‘shortly’ before or after the petition for
maintenance.’
It is only when the husband proves satisfactorily beyond
reasonable doubt that his wife was living in adultery, she will not be
entitled to maintenance and not otherwise. When an allegation of
adultery is made against the wife, the Court is bound to enquire into her
conduct. In the said enquiry, the husband has to begin his case and the
wife must be given an opportunity for adducing evidence to rebut the
allegation of “living in adultery”. 3
Living separate by mutual consent

The concept of living separately by mutual consent arises so long
as the marriage subsists and the parties agree to live separately by
consent. In other words, during the subsistence of the marriage, if the
parties agree to live separately by mutual consent, no party is entitled to
lay any claim for maintenance from the other party. In this case on the
basis of the divorce agreement, it was held that the marital relation’s had
come to terminus. By virtue thereof, the husband had already contracted
the second marriage. In other words, the first marriage has been put to an
1 1981 TLNJ 7.
2 AIR 1937 Rangoon 67.
3 K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.
Disabilities depriving maintenance—Necessity of consummation of
marriage 167
end. The wife was therefore held to have become entitled to claim
maintenance and will continue to do so, so long as she remains
unmarried and she is unable to maintain herself. 1
Living with father

It is not the law that an indigent wife when turned out of the
house by the husband must starve on the streets. In such a situation she
could certainly go and live with her father but that does not mean that
she cannot claim maintenance against the husband. Moreover the
language of Section 24 of the Hindu Marriage Act is clear. It speaks of
the “wife having no independent income sufficient for her support”. The
income has to be independent and must be sufficient for her support.
This language shows that the income must be the wife’s own. 2
A wife has a right to be maintained by her husband and the fact
that her father is supporting her could never be a ground for depriving
her of maintenance as contemplated under Section 24 of the Act, which
clearly stipulates that where the wife has no independent income
sufficient for her support and to meet the necessary expenses of the
proceedings, she may maintain an application under this provision. If the
object of the Legislature had been to deprive the wives who were being
maintained by their parents for the maintenance and expenses the word
‘independent’ would not have been used in the aforesaid provision. 3
Maintenance by others
Considering the fact that when in the course of the evidence it
was made clear that the wife had absolutely no means to maintain herself
and as she being maintained by others from the day she was neglected by
the husband the Courts are justified in recording the finding that she is
unable to maintain herself and then awarding maintenance. On a mere
technical ground High Court will not interfere under Section 482 Cr.P.C.
to set aside the order of maintenance. 4
Necessity of consummation of marriage

In one case the learned Judge held that ‘valid marriage should be
a condition precedent’, and this invalidity of marriage was sought to be
supported by the fact that there was no consummation of marriage
1 Gurmit Kaur vs. Surjit Singh @ Jeet Singh, 1996 (1) SCC 39: I
(1996) DMC 354 SC.
2 C.B. Joshi vs. Ganga Devi, AIR 1980 All 130: 1980 Mat LR 217:
1994(2) Cur CC 279.
3 Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 MP.
4 P. Lakshminarayana vs. P. Lalithamma, I (1992) DMC 308 AP.
between the parties. It was held that one fails to see how could this
factor go to affect the validity of marriage; although it may be a ground
for other relief’s under the law. 1 Therefore non-consummation of
marriage does not affect claim of maintenance.
Nullity marriage
state of matrimony. Section 24 of the Hindu Marriage Act, which
provides for maintenance pendente lite and expenses of proceedings,
clearly applies to all proceeding under the Act. An order for maintenance
pendente lite and costs of the proceedings can, as the initial words of the
section clearly state, be made in any proceeding under the Act, viz. for
restitution of conjugal rights, judicial separation, divorce or nullity of
void and voidable marriage. 2
It was therefore held that the Family Court was not right in taking
into consideration the allegation of fraud and deception made in the
petition for the purpose of deciding the prayer of interim alimony. The
fact that there is a strong possibility of the marriage being declared as a
nullity is no ground for declining even the basic right to claim interim
alimony and expenses of the litigation. It was also held that the Family
Court was clearly wrong in postponing the determination of interim
alimony till the trial of the main petition. The trial Court cannot
postpone its decision on the application for interim maintenance and
costs till the disposal of the main issue in the substantive matter. 3
Section 11 of the Hindu Marriage Act specifically declares any
marriage contravening any one of the conditions specified in Clauses (i)
(iv) and (v) of Section 5 to be null and void and on a petition presented
by either party to the marriage against the other will be declared by a
decree of nullity. Clause (i) of Section 5 of the Hindu Marriage Act lays
down that for a lawful marriage, the necessary condition is that neither
party should have a spouse living at the time of marriage. Obviously,
therefore, a marriage in contravention of this condition is null and void.
If, therefore, the finding of the Subordinate Judge on the ex parte
evidence of the petitioner is sustained, then the marriage between the
petitioner and opposite party be held to be null and void. There is no
doubt that the expression “wife” used in Section 125 of the Code means
1 Kamla Bai vs. Amritram, I (1992) DMC 283 MP.

Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700:
1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996
(1) All Mah LR 136.
3 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, ibid.
Disabilities depriving maintenance—Paternity of child 169
a legally married wife not covered by Section 11 of the Hindu Marriage

Act. In this view of the matter, where a decree of annulment of marriage
has been obtained, a Magistrate would be entitled to cancel an earlier
order passed under Section 125 in exercise of his powers under Sub-
section (2) of Section 127 of the Code. 1
Under Criminal Procedure Code wife or divorced wife is entitled
to claim maintenance. When the marriage between the first petitioner and
the respondent is null and void as it has contravened Section 5(i) of the
Hindu Marriage Act ex-wife is not entitled to claim maintenance from
the respondent. Section 11 of the Hindu Marriage Act provides that any
marriage solemnised after the commencement of the Act shall be null
and void if it contravenes any one of the conditions specified in Clauses
(i), (iv) and (v) of Section 5 of the Act. A void marriage does not create
any right and obligation which normally arise from a valid marriage. A
reading of Section 125 Criminal Procedure Code, shows that a legally
wedded wife or legitimate or illegitimate child could claim maintenance
from the husband or the father when he having sufficient means neglects
or refuses to maintain them. 2
Ornaments
Section 24 does not envisage the substitution of the customary
ornaments for the income nor can the Court refuse to make a grant
maintenance for support simply because the wife can pull on for some
time by selling the ornaments. 3
Ownership of property
Mere possession of land by the father of wife does not mean that
the daughter by virtue of a right for share in the property can be
presumed to have sufficient means to maintain herself. A mere existence
of a share in some property and the contingency of securing that is not
conclusive of the question whether she had means to maintain herself. 4
Paternity of child
There is presumption against bastardy. When dispute about
paternity raised without displacing the presumption by proving that the
father had no access during the period in question, it was held that there
1 Purna Chandra Digal vs. Sila Digal, II (1989) DMC 12 Orissa.

2 Moni vs. State, II (1987) DMC 133 Kerala.
3 Radhikabai vs. Sadhuram Awatrai, AIR 1970 MP 14: 1969 Jab LJ
537: 1969 MPLJ 565: 1979 MPWR 1004.
4 Vemulapalli Rajanikumar vs. Vemulapalli Sarath Babu, II (2000)
DMC 199 AP.
is no provision in Indian law for such test and therefore paternity test
could not be directed. 1
Pre-existing order
A mere pre-existing order under the Criminal Procedure Code for
payment of maintenance does not oust the jurisdiction of the Civil Court
to allow maintenance pendente lite under Section 24 of the Act. 2
Prior marriage
Only legally wedded wife is entitled to get maintenance
allowance under Section 125 of the Code from her husband. When apart
from the pleadings of the petitioner herself that her husband was earlier
married to some other woman, there was positive evidence of the
judgement of divorce showing that husband was earlier married to
another woman and that this marriage was subsisting when he allegedly
married the petitioner, it was held that under these circumstances, the
withdrawal of this allegation by the petitioner, even if allowed, would be
no consequence. 3
Proof of divorce
Where in proceeding started under Section 488(old): 125(new),
Cr.P.C. by a Mohammedan wife against her husband for her
maintenance, the husband states in the written statement that he had
already divorced his wife and the Court comes to the conclusion that
divorce pleaded is not proved, then such a statement in the written
statement itself operates as an expression or declaration of divorce by
talak, and the divorce would be held to take effect at least from the date
on which the written statement was filed by the husband. The reason for
the decision is that the statement made by the husband orally in the
deposition or in his written statement that he had divorced his wife in an
acknowledgement of talak alleged to have effected by him already and,
therefore, the divorce would be held to have effect at least from the date
upon which the acknowledgement in made. 4 Another view is as under:
1 Goutam Kundu vs. State of West Bengal, AIR 1993 SC 2295:

1993(3) SCC 418: 1993(3) SCR 917: 1993(3) JT 443: 1993(2)
SCR 253.
2 Surjit Kaur vs. Tirath Singh, AIR 1979 P&H 112: 1977 Cur LJ
(Civil) 490: 79 Pun LR 621: 1977 Rev LR 606: 1977 Mat LR 154:
1977 Hindu LR 793: 80 Pun LR 371: 1978 Marr LJ 47.
3 Veena Kumari vs. Kashmir Singh, I (1991) DMC 538 P&H.
4 Asmat Ullah v. Mst. Khatun Unnisa, AIR 1939 All 592; Wahab Ali
v. Qamro Bi, AIR 1951 Hyderabad 117, Chand Bi v. Bandesha, AIR
Disabilities depriving maintenance—Proof of marriage 171
‘Written statement is a pleading. Pleading is one thing and proof

is another. Pleading is formal allegations by the parties of their
respective claims and defences to provide notice of what is to be
expected at trial. Proof is establishment of a fact by evidence or
matter before the Court or legal Tribunal . Where the parties are
in dispute as regards a material fact, in averment in the pleading
does not constitute evidence, as what is stated in the pleading is
recital of past even which is required to be proved. Under the
Evidence Act, if a material fact pleaded is not proved, it follows
that the Court considers or believes that the fact does not exist.
Therefore averment in the pleading cannot be used in favour of
the maker. This being the position, statement made by the
husband in his pleading or deposition that he has divorced his
wife is recital of past event, and, if talak pleaded is not proved
such statement shall be of no consequence. In that view of matter,
if statement made by the husband that he had divorced his wife in
his pleading or deposition is considered as an acknowledgement
of divorce by talak, it will be against the policy of law, and it
would also amount to furnishing or providing evidence to talak,
which is against the rule of pleading and proof.’ 1
Therefore divorce must be for a reasonable cause and it must be
preceded by a pre-divorce conference, if the statement made orally in
evidence or in the written statement that the husband his divorced his
wife in a proceeding under Section 125 Criminal Procedure Code, 1973
will be valid talak from the date of making statement cannot be sustained
as it would be contrary to above conclusion. 2
Proof of marriage
In order to succeed in her claim for maintenance from the
opposite party the petitioner/wife has to establish that she is legally
married wife. Where the factum of marriage is denied, it must be proved
satisfactorily that there was a valid marriage the onus being on the wife,
applying for an order under Section 125 Criminal Procedure Code. It is
also an accepted position that in a proceeding under Section 125
Criminal Procedure Code the Magistrate is not expected to go into the
question relating to the validity of the marriage. Living as husband and
wife and being treated by other as such, is quite sufficient for award of
maintenance under the section. In other words, strict proof of marriage is
not necessary in a proceeding under Section 125 of the Criminal
Procedure Code. The Standard of proof of marriage need not be so high
as in a proceeding under Section 494, Indian Penal Code for bigamy or a
1961 Bombay 121; Abdul Shakoor v. Kulsum, 1962(I) CrLJ 247;

and Mohammad Ali v. Fareedunisa, AIR 1970 AP 199.
1 Zeenat Fatema Rashid vs. Iqbal Anwar, II (1993) DMC 49 Gauhati.
proceeding for divorce, Court have also accepted that even the opinion
expressed by conduct of persons having special means of knowledge is
sufficient for the purpose of satisfying the requirement of Section 125,
The standard of proof required to establish a valid marriage for
claiming maintenance under Section 125 of the Criminal Procedure Code
cannot be the same as required in matrimonial cases on in criminal cases
where the matter involves punishment of the accused on proof of
marriage. In a claim for maintenance the applicant has to make out a
prima facie case to support that claim. If sufficient material is brought
into indicate the factum of marriage the power under section 125 of the
Criminal Procedure Code can be exercised. 2
The question of appreciation of evidence in this regard and the
defence of invalid marriage on account of prior marriage, was dealt with
as under:
‘Leaving aside the minor discrepancies in the statement of
Shrimati Surjit Kaur which have been highlighted by the Counsel
for the appellant with a view to distract the Court from evaluating
the entries with regard to the birth of a son Ex.P-1, voters lists
Ex.P-3 and photograph of the plaintiff defendant and a child
Ex.P-4, no material evidence has been referred to by which it
could be deducted that factum of marriage as set up by the
plaintiff did not take place. One cannot lose sight of the fact that
entry with regard to the birth of a son (plaintiff No. 3 Azad
Singh) is duly recorded in the register of Municipal Committee,
Ropar, on 31.1.1967 as entry long before the filing of the suit or
even before Shrimati Surjit Kaur was alleged to have been turned
out from the house of the defendant. Even entry in the voters list
Ex.P-2 for the year 1970 record plaintiff No.1 and defendant as
wife and husband. Not only this, photograph Ex.P-4 shows
plaintiff No.1, and defendant along with a child who is stated to
be plaintiff No. 3. Defendant when appeared as a witness has
admitted the correctness of this photograph. Defendant has also
admitted that plaintiff No. 1 appears along with him in this
photograph. This evidence itself belies the stand of the defendant
that they were never married and so never lived as husband and
wife. Even the case set-up by the defendant that in fact he was
married to one Champa who hailed from Chhalware in Madya
Pradesh was found without any substance by the trial Court. on
re-appraisal of this evidence, I also find no infirmity in the same.
In fact the trial Court has threadbare discussed the testimony of
1 Ratna Pradhan vs. Abhi Pradhan, II (1987) DMC 1 Orissa.

2 Shobha vs. Bhaiya Lal, II (1987) DMC 85 Bombay.
Disabilities depriving maintenance—Proof of marriage 173
witnesses examined by defendant and found the some un-worthy

of credence.’ 1
In regard to the claim of husband that marriage was not
solemnised it was held that no marriage by affidavits can take place and
the marriage must have been solemnised as alleged by the wife. The
husband has, therefore, put up a totally false case. When he himself has
admitted that the wife lived with him after marriage, it is difficult to
believe that a girl will live in her husband’s house for such a long time
without any marriage having taken place. He has further admitted that
she has been holding out that she was his wife. If she were not he would
not allow her to do so. He cannot be asked to take advantage of his own
fraud. In such a case, even after the passing of the Hindu Marriage Act,
1955, the doctrine of factum violet should be invoked. If the parties are
recognised as man and wife, there is a strong presumption in favour of
the validity of marriage, form and ceremony of the marriage and the
legitimacy of its offspring. Where a man and woman had lived together
as man and wife, the law will presume, until the contrary is proved that
they were living together by virtue of a legal marriage and not in
concubinage. Such presumption can be rebutted only by showing that the
marriage was most highly improbable and not reasonable possible,
marriage can be proved by repute and intention to enter into wedlock.
After all rites and ceremonies only serve to provide proof of marriage as
registration does. It is otherwise very difficult after some lapse of time to
lead a Pandit to the witness box to prove that the marriage had been
solemnised. No documentary evidence is even possible to find. Many of
the witnesses die in the meanwhile. No evidence except the hard fact of
living together survives. 2
A custom which has been recognised and affirmed in a series of
decisions each of them based on evidence adduced in a particular case
may become incorporated in the general law and without proof in each
case. This principle will be equally applicable even where the
community is very small and limited within a small area. At the same
time the Court cannot ignore the well-established principle that before a
custom can be held as having been proved merely on the basis of earlier
decisions, those should have been based on evidence adduced in respect
of the cases. When their Lordships of Supreme Court discussed about the
text books and other materials to hold that such a custom was prevalent
in that community, it was held that in view of the definite finding of the
1 Mohinder Singh vs. Surjit Kaur, I (1994) DMC 163 P&H.

2 Ashok Kumar vs. Usha Kumari, AIR 1984 Del 347: 1984 (26) DLT
199: 1984 (2) DMC 210: 1984 (2) ILR 429 (Del): 1984 RLR 663.
Apex Court, it has become a law of the country and it can always be
relied on by the Courts without much evidence. 1
Once the marriage procedure and paternity of child was admitted,
it does not lie in the mouth of husband/father to contend that no valid
marriage came into existence as essential rites were not performed. 2
Refusal to co-habit
The husband had a liability to maintain his lawfully married wife
and children under Section 125 of Criminal Procedure Code. The
husband cannot escape that liability to maintain by alleging that he was
harassed by his wife and by resorting to the subterfuge of filling Hindu
Marriage Petition for restitution of conjugal right in a Civil Court. In the
facts and circumstances of the case, it is found that the petition for
restitution of conjugal rights was filed with ulterior motive to avoid the
liability to pay maintenance to the wife under Section 125 Criminal
Procedure Code. It was observed that looking at the record of the
husband, it is quite possible that to avoid paying maintenance to the wife
under this order, he may agree to take the wife for some time and torture
or drive her out later. Further the wife would be fully justified in
refusing to live with the husband in view of the allegations that he is
living with another woman and has an issue by her. In law, the position
is absolutely clear that a wife can refuse to live with the husband and yet
claim maintenance under Section 125 of Criminal Procedure Code, if he
has re-married or is living in adultery with another woman. A wife has a
right to exclusive association of her husband under filed and unpolluted
by any other woman. 3
If there was a reasonable apprehension of physical ill-treatment in
the mind of the wife was a just ground on her part for refusal to live with
her husband despite the offer made by him now. She could not be
deprived of the maintenance by reasons of such refusal. Under such
circumstances, it must be held that the husband had neglected to
maintain his wife. 4
1 Gurubasawwa vs. Irawwa w/o Chinnappa Barashetti, AIR 1997

Kant 87.
2 Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, 1999 (7) SCC 675
3 Dharmishthaben Hasmukhbai vs. Hasmukhbhai Pradhandas
Ranpur, I (1990) DMC 202 Gujrat.
4 Sundarmmal v. Palaniandi Mudali, AIR 1940 Mad 292 and Samuel
Stephen Richard v. Stella Richard, AIR 1955 Mad 451.
Disabilities depriving maintenance—Refusal to co-habit 175
Thus, the husband’s cruelty towards the wife was a sufficient

ground which justified her separate residence and could not prejudice her
claim for maintenance. 1
In fact in another case the act of mental cruelty was also held to
be sufficient for wife to refuse co-habitation with her husband:
‘Taking a snap in the nude by itself may not constitute an
immoral act. Surrounding circumstances and the intention of the
photographer must be taken together to come to a correct finding.
Here the photographer is his husband and the photographed is his
wife. I searched the records in vain to locate the place where the
snap was taken. If may be the hotel where the newly married
couple stayed or it may be the sea beach which provided an
idyllic background. Even if the second possibility is presumed
there is no evidence that the photograph was taken in full view of
other people who might be present at the sea beach at that
particular time and place. There is no evidence that the husband
wanted to keep these photographs at conspicuous places in his
residence for public view. There is no evidence that the husband
wanted to make clandestine business by selling nude picture. It is
a matter between the husband and the wife and there is no
evidence that the husband had done this with some evil design or
that he is a man of perverse taste. This reminds me of a world
famous painting under the title “The Birth of Venus drawn by
Bottichelli, the favour 15 th Centaury Italian Painter. The Venus
was born and was rising from the sea with all her naked grandeur.
The background was probably the Mediterranean sea. I do not
know whether in the instant case before me the husband was
imbued with the spirit of Bottichelli and whether he wanted to
immortalise his wife in her naked beauty. From the facts and
circumstances of the instant case I find no reason to hold that the
taking of photograph of the wife in her nude by her husband
amounted to mental cruelty. So I am left with the other aspect of
the question, i.e., whether the respondent’s addressing his wife as
‘Kept’ amounted to mental cruelty. Nowhere it is denied by the
respondent that he had not called her as his ‘Kept’. The petitioner
examining herself as P.W.1 has deposed that her husband used to
call her ‘Kept’. The statement of the petitioner on oath was never
challenged in her cross-examination. It is really a very serious
matter for a legally married wife to be called ‘Kept’ by her own
husband. It hurts the sentiments and the wifely pride of any
woman. In my opinion this amounts to mental cruelty which in
turn give rise to a just cause to the wife to live separately from
her husband.’ 2
1 Sumer Singh Parihar vs. Kalpna, II (1990) DMC 266 All.

2 Chitra Lekha Banerjee vs. Rana Banerjee, II (1991) DMC 377 Cal.
Once, there is a clear finding of the Civil Court on the point of desertion,
neglect and cruelty which is answered in the negative, it is not open for the
Criminal Court to give different finding on the same issue. The findings recorded
by the Civil Court are binding on the Criminal Court for the purpose of deciding
application for maintenance under Section 125 of Criminal Procedure Code.1
It has been held that T.B. is contagious disease. It might have created a
sort of apprehension in the mind of the wife, by living together under the same
roof as husband and wife and subjecting to conjugal rights she may also contract
the disease. Even if no obligation of conjugal rights is complied with by the wife,
living under the same roof is not free from the danger of contracting the
contagious disease.2
When evidence is available that the wife was not only ill-treated by her
husband but dowry demand was also made, his inhuman behaviour is so patent.
Further, the case of the wife through her father, that she was sent away from the
matrimonial home, only on that score, has also been accepted. There is no
gainsaying of the fact that only because of the conduct of the husband the wife
had become mentally deranged and became incapacitated. It was held that the
behaviour of the husband is nothing short of wilful neglect and the wife and the
minor daughter have a right to be maintained by the husband, who is under a
legal as well as moral obligation to do so.3
In another case it was seen that, the main problem of the husband was the
failure on his part in respect of sexual life. The wife however did not
immediately rushed to severe her marital relations but had waited for sufficiently
long time to see whether there would be any improvement in the potency of the
husband. Having found no hope, she chose to live separately from the husband.
Therefore, it was concluded that the wife having tried all means the marital
relations but having found that it was impossible for the husband to gain potency,
she had chosen to live apart from him. In these circumstances it was held that
there was sufficient ground for the wife to live separately.4
In one case the learned Magistrate in his order found that the
petitioner left her matrimonial home without any sufficient reason and
she refused to live with her husband, the opposite party. In coming to
such a finding he considered the evidence of the wife in its proper
perspective and also noted from her deposition that she was willing to
1 Tulsidas Madhavdas Sharma vs. Shantiben Tulsidas Sharma, II

2 Veeranna vs. Sumitrabai, I (1990) DMC 49 Kar.
3 Palanivel vs. B. Saraswathi & 2 Minors, I (1994) DMC 120 Madras.
4 Major Ashok Kumar Singh vs. Additional Session Judge, Varanasi,
1996 CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4)
CCR 68: I (1996) DMC 115 SC: 1996 (1) SCC 554.
live with her husband if the opposite party stay at Calcutta with her. The
learned Magistrate also observed that the factum of torture on her by the
opposite party and his family members was disclosed to the neighbouring
Bengali families who reside within the same campus. The appraisal of
evidence by the learned Magistrate was not interfered with in revision by
learned Session Judge as he found that there was no perversity in such
appreciation of the evidence by the learned Magistrate and as there was
no other illegality in the matter. It was held that in revision reappraisal
of the evidence as recorded by the learned Magistrate is not permissible
under the law unless such appraisal is perverse and illegal. The
Revisional Court below did not find any perversity or illegality in
appraisal of the evidence or any illegality in the judgment of the learned
Magistrate, therefore the order was affirmed. 1
Even if there be custom of second marriage in the community of
the petitioner and opposite party and that has been performed in
accordance with the customary law but the fact remains that the second
marriage has taken place and the first wife is justified in refusing to live
with her husband who had taken second wife as living with second wife
itself amount to cruelty. Therefore, the question of validity of marriage
is not relevant for the purpose of correct justification of separate living. 2
In one case the husband admitted the status of the opposite party
as his wife. He also admitted that after going to her father’s house in
‘Dasahara’ 1990 (i.e. about eight months after the marriage) she was
staying there all along. But he has not stated that he has provided any
maintenance to her during all those years. Husband had not produced any
convincing evidence that he made any sincere effort to restore the
conjugal life. Contention of the husband that wife refused to join him
because his sister rebuked her (petitioner) by saying ‘Kala Jivi’ held to
be highly improbable. In that context, if petitioner’s evidence will be
assessed then the factum of ill-treatment and cruelty on account of dowry
demands held to be true and believable. 3
Normally a pregnant wife will not leave the house of the husband
on her own and more so when the husband is Professor, having good
income and sufficient means to maintain her and child. She delivered a
female child as said earlier and there is no material that the respondent
after the birth of the child at all went to Ajmer to see the child atleast
once. The wife filed an application for restitution of conjugal rights. A
1 Rina Sarkar vs. Paritosh Sarkar, II (1994) DMC 392 Calcutta.

2 Hari Rajwar vs. State of Bihar, 1999(1) HLR 460 Patna.
3 Jadumani Sahu vs. Brundabati Sahu, 1999(1) HLR 628 Orissa.
decree for restitution of conjugal rights in her favour was made and even
than no efforts have been made by the husband to see that his wife
returns to him. In these circumstances it was observed as under:
‘If the husband does not care for his wife, does not care to
maintain his minor daughter, it is a case of neglect or refusal to
maintain his wife and child. A look at the reply to the application
under Section 125 Cr.P.C. will show that the respondent has even
gone to the extent of levelling the allegations of unchastity
against the appellant. A look at the additional pleas of the reply
will show that it is clearly mentioned therein that three letters by
same unnamed lover of the appellant were received at the address
of the father of the respondent, two of them have been destroyed
and third was produced, but was not proved. Though the name of
the lover is not named in the letter was received, it was read in
the presence of the respondent and the appellant had admitted that
she was having illicit relation with that man. The allegations of
this nature, there can be no dispute amount to mental cruelty.
Thus, even if during the proceedings under-Section 125 Cr.P.C.
the respondent would have offered that he is willing to maintain
the appellant his life in case she lives with him. All that was
required by law was that the offer should have been considered
and still an order for maintenance can be made. The learned
Judge, Family Court surprisingly did not take into consideration
this aspect to the matter merely on the ground that allegations of
cruelty as contained in the application are not proved and arrived
at a conclusion that is no proof of neglect or refusal to maintain
the appellant by the respondent and, therefore, dismissed the
application u/Sec. 125 Cr.P.C. as for as the appellant is
concerned. This approach of the learned Judge to us does not
appear to be correct. As said earlier, a Hindu wife, more so
pregnant one and more so one who belongs to poor family having
no income of her does not dessert her husband who is of better
status in the society, is well placed and there must be some
reason for her to leave the house of the husband. From the facts
on record, we are satisfied that it is a case of refusal or neglect by
the respondent to maintain his wife and, therefore, the learned
Judge, Family Court was wrong in rejecting the application of the
appellant so far as maintenance to her is concerned.’ 1
When the plaintiff has satisfactorily proved that during the
relevant period, the defendant/husband was having sexual relationship
with another lady Padmavati in the same house, under Section 18(2) of
the Hindu Adoptions & Maintenance Act, the plaintiff was entitled to
1 Jaspal Kaur vs. Manjeet Singh, I (1992) DMC 439 Raj.

live separately from the husband without forfeiting her claim to

maintenance and provision for separate residence. 1
The woman would go to the marital home of her husband, with a
fond hope and expectation that she would have not only a happy but also
peaceful conjugal society with her husband. When she found that her
husband is unable to perform sexual obligation, while is one of the
important factors to cement bondage of affection and cordial relationship
in marital home, it would be perpetual agony for the wife to continue to
live in peace in the conjugal home. Cruelty is a ground for divorce or
judicial separation in civil law. Under these circumstances, she would be
well justified live separately with the husband and at the same time keep
maintaining married status. 2
In respect of same question arising under Muslim law it was held
as under:
‘If the husband was impotent and unable to discharge his marital
obligations, how could be fulfil the main object of marriage, more
particularly, under the Mohammedan law where marriage is a
sacrosanct contract and not a purely religious ceremony as in the
case of Hindu Law. This would certainly be a very just and
reasonable ground on the part of the wife for refusing to live with
her husband, as also in cases under the Hindu Law or other laws.
A clear perusal of this provision manifestly shows that it was
meant to give a clear instance of circumstances which may be
treated as a just ground for refusal of the wife to live with her
husband. As already indicated by virtue of this provision, the
proviso takes within its sweep all other circumstances similar to
the contingencies contemplated in the Amending Provision as
also other instances of physical, mental or legal cruelty not
excluding the impotence of the husband. These circumstances,
therefore, clearly show that the grounds on which the wife refuses
to live with her husband should be just and reasonable as
contemplated by the proviso. Similarly, where the wife has a
reasonable apprehension arising from the conduct of the husband
that she is likely to be physically harmed due to persistent
demands of dowry from her husband’s parents or relations, such
apprehension also would be manifestly a reasonable justification
for the wife’s refusal to live with her husband. Instances of this
nature may be multiplied but was have mentioned some of the
circumstances to show the real scope and ambit of the proviso
1 Purna Chandra @ Purnananda Mohapatra vs. Malati Mohapatra, I

(1991) DMC 555 Orissa.
2 Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, AIR
1996 SC 333: 1996 CrLJ 392: 1996 SCC (Cr) 161: 1995 (4) CCR
68: I (1996) DMC 115 SC: 1996 (1) SCC 554.
and the Amending provision which is, as already indicated, by no

means exhaustive. In other words, where a husband contracts a
marriage with another woman or keeps a mistress this would be
deemed to be a just ground within the meaning of the second
proviso so as to make the refusal of the wife to live with her
husband fully justified and entitled to maintenance. The matter
deserves serious attention from the point of view of the wife.
Here is a wife who is forced or compelled to live a life of
celibacy while staying with her husband who is unable to have
sexual relationship with her. Such a life is one of perpetual
torture which is not only mentally or psychologically injurious
but even from the medical point of view is detrimental to the
health of the woman. Surely, the concept of mental cruelty cannot
be different in a civil case and in a criminal case when the
attributes of such a cruelty are the same.’ 1
Same question was considered by Supreme Court again and it was
reiterated as under:
‘Can it be said by any stretch of imagination that where a wife
refuses to live with her husband, if he is impotent and unable to
discharge his marital obligation, this would not be a just ground
for refusing to live with her husband when it seems to us that the
ground of impotence which had been held by a number of
authorities under the civil law to be a good ground not only for
restitution of conjugal rights but also for divorce. Indeed, if this
could be a ground for divorce or for an action for restitution of
conjugal rights, could it be said with any show of force that it
would not be a just ground for the wife to refuse to live with her
husband. The matter deserves serious attention from the point of
view of the wife. Here is a wife who is forced or compelled to
live a life of celibacy while staying with her husband who is
unable to have sexual relationship with her. Such a life is one of
the perpetual torture, which is not only mentally or
psychologically injurious but even from the medical point of
view, is detrimental to the health of the woman. Surely, the
concept of mental cruelty cannot be different in a civil case and
in a criminal case when the attributes of such a cruelty are the
same. The wife would be entitled to maintenance under Section
125(1) of the Code. The woman would go to the marital home of
her husband, with a fond hope and expectation that she would
have not only a happy but also peaceful conjugal society with her
husband. When she found that her husband is unable to perform
sexual obligation, which is one of the important factors to cement
bondage of affection and cordial relationship in marital home, it
would be perpetual agony for the wife to continue to live in peace
1 Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan,

AIR 1981 SC 1972: 1981 CrLJ 1430: 1981 CrLR (SC) 554: 1981
CAR 399: 1981 SCC (Cr) 829.
in the conjugal home. Cruelty is a ground for divorce or judicial

separation in civil law. Under these circumstances, she would be
well justified to live separately with the husband and at the same
time keep maintaining married status.’ 1
In case of remarriage by the husband, the wife has justification to
refuse to live with husband and the wife is entitled to maintenance from
the husband. 2 In another case wife alleged that her husband had
contracted a second marriage. She filed a complaint for an offence under
Section 494 of the Indian Penal Code. 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. It
was held as under:
‘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 main his wife. High
Court 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
‘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 the
premise 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 to
1 Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, 1996
CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4) CCR 68:
I (1996) DMC 115 SC: 1996 (1) SCC 554.
2 Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 CrLJ
1089: 1974 CAR 400: 1974 Cr LR (SC) 408.
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. We may also have a look at the
provisions of the Hindu Adoptions and Maintenance Act 1956,
which provides for maintenance to a Hindu wife. Under Section
18 of this Act a Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained by
her husband during her life-time. Under sub-section (2) she will
be entitled to live separate from her husband without forfeiting
her claim to maintenance,—(a) if he is guilty of desertion, that is
to say, of abandoning her without reasonable cause and without
her consent or against her wish, or of wilfully neglecting her; (b)
if he has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to
live with her husband; (c) if he is suffering from a virulent form
of leprosy; (d) if he has any other wife living; (e) if he keeps a
concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere; (f) if he has
ceased to be a Hindu by conversion to another religion; and (g) if
there is any other cause justifying her living separately. Under
sub-section (3) a Hindu wife is not entitled to separate residence
and maintenance from her husband if she is unchaste or ceases to
be Hindu by conversion to another religion. It will be apposite to
keep these provisions in view while considering the petition
under Section 125 of the Code.’ 1
In a case relating to ill-treatment of wife it was held that the non-
applicant/husband was annoyed with his wife for various reasons and,
therefore, it cannot be said that the applicant/wife has come out with a
false case that she was being ill-treated by her husband, and the question
is the extent of ill-treatment and whether the applicant/wife was justified
in leaving the house of the non-applicant/husband in such a situation. It
was also held that when there is no other evidence on record, there is no
reason to disbelieve the applicant/wife when she has made specific
allegations of ill-treatment at the hands of the non-applicant/husband
which made her take such an important decision so as to leave her
husband’s house. It was also found that after the applicant lodged a
complaint with the police, the non-applicant did not go to take her back
or made any other efforts so as to resume the marital life. In the
circumstances, It was held that the non-applicant/husband cannot take an
advantage of the situation and blame the applicant/wife, for which there
is no material on record that the wife is guilty of desertion without any
1 Rajathi vs. C. Ganesan, AIR 1999 SC 2374: 1999 CrLJ 3668: 1999
CrLR (SC) 451: 1999 SCC (Cr) 1118: 1999(3) Crimes 189: 1999(2)
Raj LW 313.
justification. It was also held that the fact remains that even after filing
of the application for maintenance, the non-applicant/husband took the
plea that the applicant/wife is able to maintain herself as she is taking
tuitions and also doing job work in typing, rather than offering to
maintain her. Thus It was held that this, itself indicates that the non-
applicant/husband chose to refuse and neglect to maintain the
applicant/wife. 1 The treatment with cruelty is itself a sufficient ground
for the wife to decline to live with the husband even if he offered to keep
her and to maintain her. 2
The right to be maintained by the husband stems from
performance of marital duty. It is only when the Court inter alia comes
to the finding that the wife claiming maintenance had been prevented
from performing the marital duty by the husband that she could be
awarded maintenance. When it is found that the wife declines to live
with husband without any just cause and there is no evidence of ill-
treatment by the husband, wife is not entitled to maintenance. In this
case the husband even sent a registered notice to the wife asking her to
say with him but she refused to accept the notice. Wife was not able to
establish that she had been neglected by her husband. As a matter of fact
she was living with her parents of her own accord, therefore she was held
to be not entitled for maintenance allowance for herself. 3
The effect of non-reconciliation on the part of the parties should
not be blown out of all the proportions. In this case, the wife had
deserted the husband and consequently a decree of divorce was granted.
In a Court of law it would be almost impossible to find out the true facts
regarding the justification of the conduct of wife. She was required to
live with the parents of the husband. She would not able to prove fact for
justifying her conduct. The fact remains that she was required to live in
strange place without the support of the persons who could adjust with
her despite her defects. In that situation refusal of wife to live with the
husband may have some justification which she was unable to prove in
accordance with law. Consequently, the Court may objectively consider
conduct of the husband too along with that of wife or coming to just
conclusion. The Court cannot take one sided view of the matter. Wife
cannot permanently live with her parents for the simple reasons her
parents are likely to out live her in normal circumstances where she will
go. She is, therefore, entitled to maintenance and it is the legal duty of
1 Babinanda vs. Vijay Kumar, I (2000) DMC 549 Bombay.

2 Rajmati vs. Mithai, II (2000) DMC 694 Allahabad.
3 Bheekha Ram vs. Goma Devi, I (2000) DMC 76: 1999(1) HLR 543
Rajasthan.
the husband under Section 25 of the Hindu Marriage Act, 1955 to

divorcee wife. 1
Allegation against the character of lady by itself is cruelty and is
a sufficient ground for her to refuse staying in company of husband.
However in another case, inspite of that, the wife did not deny to stay in
company of the husband. All that she asserted was that she would stay in
the quarter allotted to respondent No. 2 which was in her occupation. She
even showed readiness to snap relations with her maternal cousin, if the
husband was ready to stay in the quarter. In this case reliance was placed
upon the previous decision 2 of the Court, and the ratio was followed. 3
Right over property

The husband of the plaintiff had properties. If the husband would
have been alive, plaintiff could have been maintained by him. In absence
of the husband, a widow is entitled to be maintained from out of the
properties of her husband. In absence of person having statutory or pious
obligation to maintain her persons who are in possession of the
properties of her husband are liable to maintain the widow, if the
circumstances so call for. 4
Second marriage
Instances are not infrequent when the wife’s application for
maintenance under Section 125, Criminal Procedure Code is contested on
the plea that her marriage being the second marriage of the opposite party
and took place during subsistence of the earlier marriage it is null and void
and she is not eligible to get any maintenance under the provision. In such a
case it is incumbent on the part of the Magistrate to consider the question
carefully and record a finding whether the first marriage of the opposite
party was a valid marriage and was subsisting by the date of the second
marriage. On the finding depends the maintainability of the application
under Section 125, Criminal Procedure Code and the competence of the
Magistrate to award compensation to the applicant wife.5
The attempt to exclude altogether the personal law applicable to
the parties from consideration has to be repelled. The section has been
enacted in the interest of a wife, and one who intends to take benefit
under sub-section (1)(a) has to establish the necessary condition, namely,

2 Khadijabibi v. Husen Yusuf Umar Aliya, 1993 (1) GLR 437.
3 Safiyaben Mohamed Sahid Ansari vs. State of Gujarat, II (2000)
DMC 494 Gujarat.
4 Kapila Pradhan vs. Parcha Pradhan, II (1992) DMC 393 Orissa.
5 Tankadhar Nath vs. Prabhahati Nath, I (1991) DMC 336 Orissa.
Disabilities depriving maintenance—Second marriage 185
that she is the wife of the person concerned. This issue can be decided
only by a reference to the law applicable to the parties. While the
legislature has considered it advisable to uphold the legitimacy of the
paternity of a child born out of a void marriage, it has not extended a
similar protection in respect of the mother of the child. The marriage of
the appellant must, therefore, be treated as null and void from its very
inception. It was urged that the appellant was not informed about the
husband’s prior marriage when she married him who treated her as his
wife, and, therefore, her prayer for maintenance should be allowed. But
it was held that the wife cannot rely on the principle of estoppel so as to
defeat the provisions of the Act. So far as the respondent treating her as
his wife is concerned, it was held that it is of no avail as the issue has to
be settled under the law. It is the intention of the legislature which is
relevant and not the attitude of the party. 1
Merely by reason of the fact that the first wife is living, the
second marriage will not be null and void; because the expression
‘spouse’ as used in Section 5(i) of the Hindu Marriage Act means
lawfully married wife or husband. Therefore, it necessarily follows,
before deciding the validity of otherwise of the second marriage. The
solemnization of the first marriage in due form has also to be
established. If the first marriage itself is void, either because of the
violation of the conditions in Clauses (iv) and (v) of Section 5 of the
Act, the parties to the marriage being within the prohibited degrees of
relationship or being sapindas of each other; or because of the non-
performance of the marriage in due form with essential customary rites,
the second marriage will not be null and void. Therefore, before the
second marriage was held to be null and void, the performance of the
first marriage with requisite conditions and essential customary rites and
ceremonies has to be established. 2
In another case it was found that the husband suppressed the fact
of the first wife living and on misrepresentation that she was dead, the
husband got married with the present wife and only, of late, just five
days prior to filing of the petition before the Court of Enquiry, the wife
came to know about the first wife of her husband living. On the basis of
material on record it was held that this had to be accepted since
absolutely no iota of evidence is made available from any quarter contra

1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93:
1988 CrLR (SC) 182: 1988(1) Crimes 594: 1988(1) Ker LT 416.
2 Rudramma vs. H.R. Puttaveerabhadrappa, II (1986) DMC 272
Karnataka and Mohammed Sharif vs. Raisa Begum, II (1986) DMC
456 Bombay.
to the effect that the first wife of the respondent was also living with
them, nor any attempt had been made on the part of the respondent in
proof of the same. Hence, It was held that the reason attributed for the
wife consenting to get married with the respondent has to be believed
and accepted under such circumstances. After all, the marriage held
between the parties could only be treated as a valid marriage, since the
fact of the subsistence of the first marriage and her suppressed on
representation that she was dead. Under these circumstances, the
marriage could only be treated void-able one, and the option of getting
the same declared void was left with the wife.
However, for the purpose of Section 125 of Criminal Procedure
Code, the law is settled long back that the marriage in between the
parties though plays an integral part in deciding the question of
maintenance, even if the marriage strictly does not come to be proved, it
is sufficient if evidence is available to the effect that the parties have
lived together for a considerable time. As such, when it was established
that the wife had been living with the respondent for a considerable
period and continuously so as to give way for a child to be born, this
status of the wife itself was sufficient for the grant of maintenance not
only for her but also for her child the second petitioner. Therefore it was
held that the petitioner was the wife of the respondent and the other
petitioner was their legitimate child and the respondent was duty bound
to maintenance them. 1
In the decision of Vimala v. Veeraswamy, 2 the Supreme Court had
specifically observed that it was for the husband to prove that the
marriage was void due to subsistence of an earlier marriage and the
burden of proof of the earlier marriage shall be entirely upon the
husband. The relevant portion of the observation is as follows:
“Section 125 of the Code of Criminal Procedure 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. When an attempt is
made by the husband to negative the claim of the neglected wife
depicting her a kept-mistress on the specious plea that he was
already married, the Court would insist on strict proof of the
earlier marriage. The term ‘wife’ in Section 125 of the Code of
Criminal Procedure, includes a woman who has been divorced by
a husband or who has obtained a divorce from her husband and
has not remarried. The woman not having the legal status of a
1 Mallika vs. P. Kulandai, I (2001) DMC 354 Mad; See also Manulal
vs. Kunti Behera, I (1986) DMC 22 Orissa.
2 1991 (2) SCC. 375.
wife is thus brought within the inclusive definition of the term

‘wife’ consistent with the objective. However, under the law a
second wife those marriage is void on account of the survival of
the first marriage is not a legally wedded wife and is, therefore,
not entitled to maintenance under this provision. Therefore, the
law which disentitles the second wife from receiving maintenance
from her husband under Section 125, Criminal Procedure Code,
for the sole reason that the marriage ceremony though performed
in the customary form lack legal sanctity can be applied only
when the husband satisfactorily proves the subsistence of a legal
and valid marriage particularly when the provision in the Code is
a measure of social justice intended to protect women and
children. We are unable to find that the respondent herein has
discharged the heavy burden by tendering strict proof of the fact
in issue.”
In the light of these principles propounded by the Apex Court, the
Madras High Court in another case concluded that the petitioner/husband
failed to discharge the burden by proving subsistence of the earlier legal
and valid marriage. 1
In another case the second marriage of husband was sought to be
justified by claiming that the claimant wife was suffering from T.B. It
was held that in the absence of any evidence and proof on record it
cannot be held that the non-applicant was suffering from T.B. In fact it
appears that the applicant has taken this plea to find excuse for
performing ‘Natra’ and keeping the non-applicant away from the home.
It was also observed that it is a known fact that T.B. is curable ailment
and, therefore, this cannot be a ground for the husband to desert the wife
instead of maintaining and providing medical help. Law permits to the
non-applicant to refuse to live with the husband on the ground of “Natra”
second marriage and under such circumstances the husband cannot
compel the wife to live with him and cannot refuse to maintain her and
cannot avoid the liability. 2
The Explanation to Section 125 of Criminal Procedure Code,
1973 places a second wife and a mistress on the same footing and does
not make any differentiation between them on the basis of their status
under matrimonial law. If we ponder over the matter we can clearly
visualise the reason for a second wife and a mistress being treated alike.
The purpose of the Explanation is not to affect the rights of a Muslim
husband to take more than one wife or to denigrate in any manner the
legal and social status of a second wife to which she is entitled to as a
legally married wife, as compared to a mistress but to place on an equal
1 Samidurai vs. Rajalakshmi, I (2000) DMC 252 Madras.

2 Chandarsingh vs. Nanibai, II (2000) DMC 660 MP.
footing the matrimonial injury suffered by the first wife on account of

the husband marrying against or taking a mistress during the substance
of the marriage with her. From the point of view of the neglected wife,
for whose benefit the Explanation has been provided, it will make no
difference whether the woman intruding into her matrimonial life and
taking her place in the matrimonial bed is another wife permitted under
law to be married and not a mistress. The legal status of the woman to
whom a husband has transferred his affections cannot lessen her distress
or her feelings of neglect. In fact from one point of view the taking of
another wife portends a more permanent destruction of her matrimonial
life than the taking of a mistress by the husband. It can be said that a
second wife would be more tolerant and sympathetic than a mistress so
as to persuade the wife to rejoin her husband and lead life with him and
his second wife in one and the same house. It will undoubtedly lead to a
strange situation if it were to be held that a wife will be entitled to refuse
to live with her husband if he has taken a mistress but she cannot refuse
likewise if he has married a second wife. The Explanation has to be
construed from the point of view of the injury to the matrimonial rights
of the wife and not with reference to the husband’s right to marry again. 1
The Explanation has, therefore, to be seen in its full perspective
and not disjunctively. Otherwise it will lead to discriminatory treatment
between wives whose husbands have lawfully married again and wives
whose husbands have taken mistresses. Approaching the matter from this
angle, comparison of Muslim wives with Hindu wives or Christian wives
was held to be not necessary to restrict the comparison to Muslim wives
themselves who stand affected under one or the other of the two
contingencies envisaged in the Explanation and notice the
discrimination. A right has been conferred on the wife under the
Explanation to live separately and claim maintenance from the husband
if he breaks his vows of fidelity and marries another woman or takes a
mistress. The Explanation is of uniform application to all wives
including Muslim wives whose husbands have either married another
wife or taken a mistress. 2
Section 488(2) of the old Code also provided to the extent that if
a husband has contracted marriage with another woman, it shall be
considered to be a just ground for his wife’s refusal to live with him. In
1 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987
SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543:
1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.
2 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987
SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543:
1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.
one case it was, however, urged that there was no legal evidence of the
second marriage and therefore the wife was not entitled to maintenance
on the ground that her husband had contracted a second marriage. It was
held that the evidence of the wife, her father and of a neighbour was
enough to prove that a lawful marriage had taken place between the
husband and the second wife. It was further held that as the wife was
justified in refusing to live with the husband, the latter was under a legal
obligation to maintain her. When he neglected to maintain her the High
Court was justified in passing the order for maintenance. 1
In order to be eligible to receive maintenance under Section 125,
Criminal Procedure Code the wife must establish that she is the legally
married wife of the opposite party or that after her marriage she has been
divorced and has not re-married. Under the provision in Section 11 of the
Hindu Marriage Act, 1955 read with those in Section 5 of the Act any
marriage solemnized after commencement of the Act shall be null and
void if either party has a spouse living at the time of the marriage. The
Calcutta High Court in the case of Kalyani Sen vs. Radhakant Sen, 2
taking a different view held that a second marriage is a voidable one, it
is valid and can be relied upon for the purpose of grant of maintenance
under Section 125, Criminal Procedure Code till it is annulled by a
decree in an appropriate proceeding under the Hindu Marriage Act.
The position has now has been settled by the Apex Court in the
case of Yamunabai Anantroa Adhav vs. Anantrao Shivram Adhav, 3
wherein the Court in categorical and unequivocal terms held that the
second marriage in such circumstances is null and void and cannot be
treated as voidable under Section 12 of the Hindu Marriage Act
notwithstanding the fact that the wife was not informed about the
husband’s earlier marriage when she got married him. A similar view has
been taken in the case of Manulal alias Manulal Behera vS. Kunti
Behera, 4 and in the case of Sri Ram Prasanna Dash v. Bhabani Devi. 5
Section 125 of the code of Criminal Procedure is meant to
achieve a social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply remedy for the
supply of food, clothing and shelter to the deserted wife. When an
attempt is made by the husband to negative the claim of the neglected
1 Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 Mah

LJ 437: 1974 MPLJ 470: 1974(4) SCC 610.
2 (1987) 2 Reports (Cal.) 615.
3 AIR 1988 SC 644.
4 1985 (II) OLR 262.
5 1990 (I) OLR 548.
wife depicting her as a kept-mistress on the specious plea that he was

already married, the court would insist on strict proof of the earlier
marriage. The term ‘wife’ in Section 125 of the Code of Criminal
Procedure, includes a woman who has been divorced by a husband or
who has obtained a divorce from her husband and has nor remarried. The
woman not having the legal status of a wife is thus brought within the
inclusive definition of the term ‘wife’ consistent with the objective.
However, under the law a second wife whose marriage is void on account
of the survival of the first marriage is not a legally wedded wife and is,
therefore, not entitled to maintenance under this provision. Therefore,
the law which disentitles the second wife from receiving maintenance
from her husband under Section 125 Cr.P.C. for the sole reason that the
marriage ceremony though performed in the customary form lacks legal
sanctity can be applied only when the husband satisfactorily proves the
subsistence of a legal and valid marriage particularly when the provision
in the Code is a measure of social justice intended to protect woman and
children. 1
In one case plaintiff stated in application that the right to claim
separate maintenance from her husband accrued to her by reason of the
second marriage of her husband. It was held that the right would not
have accrued to her as the marriage was a void marriage since under the
provision of Hindu Adoptions & Maintenance Act that right to separate
maintenance would accrue only if the second marriage was a good
marriage, and there was a clear recognition of the validity of that
marriage from the pleading. 2
Second wife
The entire section 125 of Criminal Procedure Code, 1973 either
with reference to wife or children or father or mother is couched in
singular form. If the interpretation of the learned Magistrate is
considered in its setting, then only one child is entitled to maintenance,
and such interpretation of Section 125 Criminal Procedure Code, leads to
absurdity. Section 13(2) of the General Clauses Act, 1897 is as
follows:—“Words in the singular shall include the Plural, and Vice
Versa”. Therefore, the ‘wife’ occurring in Clauses (1) of sub-section (1)
of Section 125 Criminal Procedure Code, includes wives as also minor
‘child’ in Clauses (b) includes children. Therefore, it was held that the
order of the Magistrate in holding that the second wife is not entitled to
maintenance is clearly contrary to the provisions of Section 125 Criminal
1 K. Vimla vs. K. Veeraswamy, I (1991) DMC 518 SC.

2 Saraswathamma vs. Bhadrama, AIR 1970 Mysore 157.
Disabilities depriving maintenance—Temporary Employment 191
Procedure Code. 1 The Supreme Court however without adverting to this

decision or its reasoning, has held that the second marriage being null
and void, the second wife is not entitled to maintenance. 2
Sufficient income
Where the wife in her examination admitted that she was working
as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it
was held that the object of Section 125, Criminal Procedure Code is to
prevent vagrancy, by compelling a person to support his wife or child, or
father or mother, unable to support itself. The maximum amount payable
under this Section is Rs. 500/- p.m. This amount is not intended for
leading a luxurious life. The powers of the Criminal Court under Chapter
IX are limited in scope and orders passed thereunder are subject to any
final adjudication that may be made by a Civil Court between the parties
respecting their civil rights and status. Since the wife is getting Rs. 735/-
p.m. which is sufficient to keep her from starvation. She is not entitled to
claim maintenance from the husband. 3
Temporary Employment
In regard to the interim maintenance provided in Section 24 of
the Hindu Marriage Act, 1955, the Court’s approach to the problem
should be that a marriage do facto carries with it the right to interim
maintenance in matrimonial proceeding. The only consideration which
should weigh with the judicial mind is whether the applicant is possessed
of sufficient means for his or her support and necessary expenses of the
proceeding. The word ‘sufficient’ is of some significance and it connotes
that the income of the applicant must be such which would be sufficient
for a normal person for his or her sustenance as well as to meet the
necessary expenses of the proceeding. It does not contemplate ‘some
income’ by the applicant howsoever meagre it may be, would disentitle
the application from getting relief under Section 24 of the Act. At the
same time, the Court should also bear in mind another principle, namely,
that the order should not work out as a penalty crippling the party from
prosecuting the proceeding. The Court undoubtedly exercises a wide
discretion in these matters but the discretion is judicial and not an
arbitrary or capricious one. It is to be guided on sound principles of
matrimonial law and should be exercised within the ambit of the
provisions in the section and having regard to the object of the Act.
Keeping the aforesaid principles in view, it was held that a temporary
1 Mala Balakistaiah vs. Peeda Moulalamma, I (1987) DMC 245 AP.

2 Khemchand Om Prakash Sharma vs. State of Gujarat, 2000 (3)
SCC 753: 2000 SCC (Cr) 748
3 Manikkuttan Nair vs. Girija Amma, I (2001) DMC 117 Kerala.
appointment of the wife as a teacher which is of very shaky tenure would

not disentitle her to receive maintenance under Section 24 of Hindu
Marriage Act, 1955 Act. 1
Unproved illicit relation

In one case in the additional pleas it was mentioned that three
letters by some unnamed lover of the wife were received at the address
of the father of the husband, two of them had been destroyed and third
was produced, but was not proved. Though the name of the lover is not
named in the letter was received, it was read in the presence of the
respondent the appellant had admitted that she was having illicit relation
with that man. The allegations of this nature, there can be no dispute
amount to mental cruelty. Thus, even if during the proceedings u/Sec.
125 Cr.P.C. the respondent would have offered that he is willing to
maintain the appellant his wife in case she lives with him. All that was
required by law was that the offer should have been considered and still
an order for maintenance can be made. The learned Judge, Family Court
surprisingly did not take into consideration this aspect of the matter
merely on the ground that allegations of cruelty as contained in the
application are not proved and arrived at a conclusion that is no proof of
neglect or refusal to maintain the appellant by the respondent and,
therefore, dismissed the application under section. 125 Cr.P.C. as far as
the appellant is concerned. The approach of the learned Judge to us does
not appear to be correct. As said earlier a Hindu wife, more so pregnant
one and more so one who belongs to poor family have no income of her
does not desert her husband who is of better status in the society, is well
placed and there must be some reason for her to leave the house of the
husband. From the facts on record, we are satisfied that it is a case of
refusal or neglect by the respondent to maintain his wife and, therefore,
the learned Judge, Family Court was wrong in rejecting the application
of the appellant so far as maintenance to her is concerned. 2
Unreasonably attitude
Taking Rs. 760/- to be the monthly income of the petitioner, it
was held that it will be in the fitness of the things if the wife and the two
children together receive Rs. 300/- for their monthly maintenance. It was
also held that the attitude of the wife in such case cannot be said to be
quite reasonable. She had made serious allegations against the husband
alleging the acts of criminality against him. Probably she is justified in
1 Krishnapriya Mohapatra vs. Birakishore Mohapatra, II (1986) DMC

96 Orissa.
2 Jaspal Kaur vs. Manjeet Singh, II (1992) DMC 17 Raj.
Disabilities depriving maintenance—Validity of marriage 193
making those allegations. But the point noted by the court was that
inspite of her conviction relating to criminal tendencies of the husband,
she wants to keep herself wedded to him for all his life. The husband had
made a clear statement before the court that he was prepared to make
sufficient provision for the maintenance of his wife and children if the
wife was prepared to separate herself from the husband by a decree of
divorce by consent and to start a fresh life, thus allowing him to lead a
free life of his own. The wife did not accept this suggestion, whereupon
it was held that there was no reason, logic or rationale, for this conduct
of the wife. If she did not want to stay with the husband, she could not
be blamed for that. She wanted maintenance from the husband. She could
not be blamed even for that. But when the husband had made a
reasonable suggestion that she could get the same thing by allowing him
and her to live a life of their own by taking a divorce, it would have
resulted in freedom and consequent happiness for both of them. It was
held that just with a view that the husband should not be happy in his
future life, the wife wanted to continue to be unhappy herself. There was
no justification for this attitude of the wife at all. It was also held that
the wife had not shown that she was unable to maintain herself. No effort
is made by her to satisfy the Court in this behalf. Therefore a sum of
Rs. 100/- was held to be the maximum sum that should be awarded to the
wife by way of monthly maintenance. 1
Validity of marriage
The Kerala High Court in a case where the claim for maintenance
of the wife was disputed on the ground that there was no valid marriage
between the parties because the husband had earlier married and that
marriage was subsisting on the date of his marriage with the applicant-
wife in that case. After considering the observations of the Supreme
Court in the case of Yamunabai (supra), the Kerala High Court in the
case of Raman Pillai v. Subhadra Amma, 2 has held:
“This means, a lady who wants to claim maintenance from the
man should establish that she has lawfully married him in
conformity with the provisions contained in Section 5(1) of the
Act as well. In other words, in the absence of proof that the
marriage between the parties was not void on account of the
contravention of the provisions contained in Section 5, the lady
will not be entitled to claim maintenance Marriage of a woman,
even if it in accordance with Hindu rites, with a man, having a
spouse living at the time of the marriage, is a nullity in the eye of
1 Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC
26 Bombay.
2 1989 Cri.LJ 1274.
law. The lady will not get the status of a legally wedded wife.
She is accordingly not entitled to the benefit of Section 125 of the
Code of Criminal Procedure.”
It would thus means that the spouse approaching the Court under
Section 125 of the Cr.P.C. will have to establish at trial that there was a
lawful marriage between the spouses and that there was no impediment
existing at the relevant time which would invalidate their marriage. 1
It is not necessary for the wife that the she must prove that she
was legally wedded. Strict and literal construction should not be
preferred. 2
There is no rule of Hindu Law sanctioning early marriage of male
children and there is no duty upon parents or guardians to marry their
sons or male wards before they attain majority. The practice of early
marriage of Hindu minors may be sanctioned by usage; but it has been
disapproved by the passing of the Child Marriage Restraint Act of 1929. 3
The child marriage has not been invalidated by the provisions of
the Hindu Marriage Act. Section 11 of the Act deals with void marriages.
That section relates only to marriages held in contravention of Clauses
(I), (iv) and (v) of Section 5. That section does not refer to Clause (iii) of
Section 5. Section 12 refers to voidable marriage. That sections deals
only with marriages in contravention of the conditions specified in
clause (ii) of Section 5. The section does not also deal with clause (iii) of
section 5. Thus the marriage in contravention of Clause (iii) of Section 5
is neither void nor voidable under the provisions of the Hindu Marriage
Act. The only other relevant provision is Section 18 of the Act, which
provides for punishment for contravention of the conditions specified in
Section 5(iii) also. The punishment will be imprisonment, which may
extend to 15 days or with fine, which may extend to Rs.1,000/- or both.
Thus, the only provision which will come into play in the event of
contravention of Section 5(iii) is Section 18 of the Hindu Marriage Act,
1955 and nowhere does the Act declare the marriage to be illegal or
invalid or void. 4
The only provision attracted in Sub-section 5(iii) of the Hindu
Marriage Act, 1955, which by virtue of Section 18 thereof at best can
1 Kantilal Punjaji Chavda vs. Nanubhai Kantilal Chavda, II (1993)

DMC 551 Gujarat.
2 Laxmibai vs. Ayodhya Prasad alias Ramadhar, AIR 1991 MP 47.
3 Ram Jash Agarwalla vs. Chand Mandal, ILR (1937) 2 Cal 764: 41
CWN 1176.
4 Seema Devi alias Sirmaran Kaur vs. State of H.P., 1998 (2) Crime
168 (H.P).
lead to imprisonment of upto 15 days and/or fine which may extend to

Rs.1,000/- or both. 1
Wife can not seek divorce or judicial separation on the ground of
child marriage. The plea of child marriage can also not be raised as a
defence to seek relief of restitution of conjugal rights. 2
A marriage solemnised in contravention of the age mentioned in
Clause (iii) of Section 5 of the Hindu Marriage Act, 1955 can neither be
declared ab initio void nor voidable. The consequences, if any, which
flow from that contravention are given in Section 18 and that is that a
person who procures a marriage of himself or herself in such
contravention shall be punishable with imprisonment which may extend
to fifteen days, or with fine which may extend to one thousand rupees, or
with both. No other result is stated in the Act to flow from the
contravention. 3
The minority of the wife or of her guardian in marriage was by
itself not a ground for getting it declared null and void under Section
11 or its annulment under Section 12. 4 However there is a different
view also.
A marriage between the bridegroom and the bride, if their ages do
not satisfy the requirements of clause (iii) of Section 5, cannot be
solemnised as it is prohibited under clause (iii) of Section 5, and that it
is not necessary that, in the event of contravention of clause (iii) of
Section 5, either party to the marriage should rush to the Court for
declaring that marriage as null and void and that such a marriage is void
ab initio and is no marriage in the eye of law. 5
The marriage under the Hindu Law is a sacrament and not a
contract. The minority of an individual may operate as a bar to his or her
incurring contractual obligations. But it cannot be impediment in the
matter of performing a necessary ‘samskars’. A minor’s marriage without
the consent of the guardian can be held to be valid also on the
application of the doctrine of factum valet. Consequently the marriage of
Hindu minor cannot be held to be invalid for want of proof that his
guardian consented to it. 6
1 Neetu Singh vs. State, 1999 (49) DRJ 70.

2 Mohinder Kaur vs. Major Singh, AIR 1972 P&H 184.
3 Gindan vs. Barelal, AIR 1976 MP 83.
4 Naumi vs. Narotam, AIR 1963 HP 15.
5 P.A. Saramma vs. G. Ganapatulu, AIR 1975 AP 193: (1975) 1 APLJ
37.
6 Sivanandy vs. Bhagvathyamma, AIR 1962 Mad 400.
There can be no doubt that a Hindu marriage is a religious

ceremony. According to all the tests it is a samskaram or sacrament, the
only one prescribed for a woman and one of the principal religious rites
prescribed for purification of the soul. It is binding for life because the
marriage rite completed by saptapadi or the waling of seven steps before
the consecrated fire creates a religious tie, and a religious tie when once
created, cannot be united. It is not a mere contract in which a consenting
mind is indispensable. The person marrying may be a minor or even of
unsound mind, and yet, if the marriage rite is duly solemnised, there is a
valid marriage. 1
In regard to customary marriage it has been held that upon the
proof of custom such marriage can not be disputed after a long time. 2 But
where custom is set up to prove that it is at variance with the ordinary
law, it has to be proved that it is not opposed to public policy and that it
is ancient invariable, continuous, notorious, not expressly forbidden by
the legislature and not opposed to morality or public policy. 3
The doctrine of factum valet was quite well known to Hindu Law
test writers and the relevant Sanskrit quotation is — ‘a fact cannot be
altered by a hundred texts’. The doctrine in the case of the marriage of a
minor was that the factum of marriage, which was solemnised, could not
be undone by reason of a large number of legal prohibitions to the
contrary. Under Section 4 of the Hindu Marriage Act, it is only when
there is a clear provision in the Hindu Marriage Act that any text, rule or
interpretation of Hindu Law or any custom or usage as part of that law in
force immediately before the commencement of the Hindu Marriage Act
shall cease to have effect in so far as it is inconsistent with any of the
provisions of the Act. 4
Threat of physical violence or death will constitute “force”.
The force may be physical or moral and not as defined under Section
349 IPC. Therefore, in the facts and circumstances of the case what
the court has to see, whether any threat was held out to the wife, may
be prior to the date of marriage. It was her case that her objectionable
photographs were taken by the respondent after intoxicating her.
Under fear that her objectionable photographs would be made public,
1 Venkatacharyulu vs. Rangacharyulu 1891 ILR 14 Mad 316: 1 Mad

LJ 85.
2 Shakuntalabai vs. L.V. Kulkarni, AIR 1989 SC 1359: 1989(2) SCC
526: 1989(2) SCR 70: 1989(1) Scale 737: 1989(1) JT 607: 1989(1)
DMC 536
3 Mookka Kone vs. Ammakutti Ammal, AIR 1928 Mad 299 (FB)
4 Pinninti Venkataramna vs. State, AIR 1977 AP 43.
the respondent started blackmailing her. He also extended threat of

kidnapping her younger sister. Under fear and threat, she involuntarily
and under pressure agreed to perform marriage ceremonies at the
Mandir as well as before the Registrar of marriage. Therefore, in view
of this statement of the appellant, it was held that the Court below
erroneously presumed that since she appeared before the Registrar of
Marriage and did not complaint to him about the threat, therefore, her
marriage was performed with her consent. This presumption, it was
held, was based on the imagination of the Trial Court himself and was
not borne from the record. 1
Section 5 lays down, for a lawful marriage, the necessary
condition that neither party should have a spouse living at the time of the
marriage. A marriage in contravention of this condition, therefore, is null
and void. It was urged on behalf of the appellant that a marriage should
not be treated as void because such a marriage was earlier recognised in
law and custom. A reference was made to Section 12 of the Act and it
was said that in any event the marriage would be voidable. There is no
merit in this contention. By reason of the overriding effect of the Act as
mentioned in Section 4, no aid can be taken of the earlier Hindu Law or
any custom or usage as a part of that Law inconsistent with any
provision of the Act. So far as Section 12 is concerned, it is confined to
other categories of marriages and is not applicable to one solemnised in
violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts
further restrictions on such a right. The cases covered by this section are
not void ab initio, and unless all the conditions mentioned therein are
fulfilled and the aggrieved party exercises the right to avoid it, the same
continues to be effective. The marriages covered by Section 11 are void
ipso jure, that is, void from the very inception, and have to be ignored as
not existing in law at all if and when such a question arises. Although the
section permits a formal declaration to be made on the presentation of a
petition, it is not essential to obtain in advance such a formal declaration
from a court in a proceeding specifically commenced for the purpose. It
is also to be seen that while the legislature has considered it advisable to
uphold the legitimacy of the paternity of a child born out of a void
marriage, it has not extended a similar protection in respect of the
mother of the child. The marriage of the appellant must, therefore, be
treated as null and void from its very inception. The attempt to exclude
altogether the personal law applicable to the parties from consideration
also has to be repelled. The section has been enacted in the interest of a
1 Anuj Sharma vs. Suresh Kumar, AIR 1998 Del 47: 1997 (3) AD 504
(Del): 1997 (67) DLT 127.
wife, and one who intends to take benefit under sub-section (1)(a) has to
establish the necessary condition, namely, that she is the wife of the
person concerned. This issue can be decided only a reference to the law
applicable to the parties. It is only where an applicant establishes her
status or relationship with reference to the personal law that an
application for maintenance can be maintained. 1
The Court arrived at a finding that the marriage of the plaintiff
with the defendant as null and void. It was held that the judgment, order
or decree in exercise of matrimonial jurisdiction which confers upon or
takes away from any person any legal character or which declares any
person to be entitled to any such character not as against any specified
person but absolutely could be rendered only by a competent Court
having jurisdiction and it is a decision in rem and not in personem alone.
Both the Courts adverted to the contentions raised by the husband to the
factum of his marriage with the plaintiff as being null and void and in
view of the contravention of clauses (i) of Section 5 of the Hindu
Marriage Act. But the findings of the Courts that the petition under
Section 18 of the Hindu Adoptions & Maintenance Act as being
maintainable was held to be not legally sustainable. In view of the fact
that the plaintiff whose marriage was a nullity, she cannot be construed
as a wife under Section 18 of the Hindu Adoptions & Maintenance Act
for the purpose of seeking maintenance. Section 18 contemplates a valid
marriage solemnized under the Act and not a marriage of nullity as
envisaged under Section 11 of the Hindu Marriage Act. In view that, the
precondition for the plaintiff to claim maintenance under Section 18 of
the Hindu Adoptions & Maintenance Act is that her marriage should be a
marriage de hors Section 11 of the Hindu Marriage Act. The question of
any further declaration by the plaintiff that her marriage as being null
and void would not arise since her marriage is non est as in the eye of
law and she could not be characterized as a wife for the purpose of
entitlement to the maintenance under Section 18 of the Hindu Adoptions
& Maintenance Act, 1956. 2
If the consent of the spouse was obtained by fraud as to the nature
of the ceremony as to the nature of the material fact or circumstance
concerning the respondent, the marriage can be annulled. It is not
necessary that consent is obtained by practicing fraud at the time of
solemnization of the marriage. It is enough if it was obtained even at an

1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93:
2 Basappa vs. Siddagangamma, II (1992) DMC 167 Kar.
Disabilities depriving maintenance—Working wife 199
earlier stage. In these circumstances It was held that the consent of the
husband was obtained by fraud and misrepresentation as to material facts
concerning the respondent and that he is entitled to a decree for
annulment under Section 12(1)(c) of the Act. 1
In view of the specific finding that the question of marriage of
plaintiff with defendant as being null and void the Civil Court’s power to
adjudicate factum of maintenance under Section 18 of Hindu Adoptions
& Maintenance Act, 1956 cannot be legally sustained. Therefore it was
held that in all cases, where marriage is a nullity as envisaged under
clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act the
question of a wife claiming maintenance under Section 18 of the Hindu
Adoptions & Maintenance Act, 1956 would not arise. 2
A voidable marriage has to be regarded as good for all purpose
until annulled by a decree of nullity the Court. It is the option of the
parties to the marriage whether they want to declare the marriage a
nullity or not. A voidable marriage means that it was valid at the time it
takes place but subsequently, it becomes a nullity on certain facts
coming to the notice of one of the parties to the marriage and then that
party can get a declaration to the effect that the marriage is an nullity. It
cannot be said that the marriage was a nullity from the very inception so
as to say that the relationship of husband and wife did not come into
existence. When once the relationship of husband and wife is to be
accepted then either party can be granted maintenance in accordance
with provisions of Section 25 of the Hindu Marriage Act. 3
In one case it was held that assuming that the non-applicant was
below 15 years of age, the married was not void under Section 11 of the
Hindu Marriage Act. It may be that the marriage was voidable at the
instance of the applicant. Therefore if was held that if the marriage was
voidable at the instance of the applicant the marriage would continue to
be valid unless it was declared to be void by the appropriate court by
initiation of proceedings under the relevant provisions of the Hindu
Marriage Act. 4
Working wife
In one case the opposite party admitted to be working as an
Anganbadi worker and getting salary of Rs. 500/-, but learned Magistrate
after taking into consideration her circumstances as well as the
1 Brijinder Bir Singh vs. Vinod alias Parminder, AIR 1995 P&H 42.
2 Basappa vs. Siddagangamma, ibid.
3 Hashish Sharma vs. Sushma Sharma, I (1996) DMC 303 Raj.
4 Babarao vs. Shobhatai, II (1985) DMC 161 Bombay.
necessities has granted a sum of Rs. 300/-. Petitioner has not led any
evidence to prove that income of Rs. 500/- of the opposite party was
sufficient to sustain her livelihood. On the other hand, opposite party has
stated in her evidence that due to insufficiency of income she is unable
to sustain her livelihood. In that respect, she was not at all cross-
examined. It was therefore held that, learned Magistrate was justified in
granting the monthly maintenance @ of Rs. 300/- in favour of the
opposite party. 1
An applicant is not entitled to maintenance if she is a working
lady, even if, she is not attending the office for one reason or the other.
However, she was held to be entitled to litigation expenses to the tune of
Rs. 1000/-. It was further observed that the wife may either apply for her
transfer to the concerned authorities on compassionate grounds and the
Court expressed hope that if a good case for transfer is made out, she
would be accommodated because according to her, the husband was not
permitting her to attend the office. 2
1 Sarat Chandra Pattnaik vs. Binodini Pattnaik, II (1999) DMC 356

Orissa.
2 Pushplata Sharma vs. Yash Paul Sharma, I (1990) DMC 517 P&H.
Duty to maintain—Introduction 201
Chapter 5
Duty to maintain
SYNOPSIS
Introduction....................................201 Duty of son..................................... 209
General ..........................................203 Duty to maintain children.............. 210
Burden of proof ..............................205 Effect of support of relatives.......... 211
Daughter in law .............................206 Nature of obligation ...................... 212
Determination of neglect................207 Refusal to join................................ 212
Duty of married daughter ..............207 Scope of obligation of husband ..... 213
Introduction
The ancient Hindu Society has always placed the wife on a high
pedestal. It is said that, ‘the house (building) is not the house. The
mistress of the house is said to be the house. A house without the lady of
the house is worse than a dreary forest’.
Manava Dharma Sastra or the Institutes of Manu with the Gloss
of Kulluka, comprising the Indian system of duties, religious and civil,
translated by Sir Willian Jones and collated with the Sanskrit Text by
Grayes Chammey Hughten, Esq. Third Edition, Chapter 3 verses 55 to 60
read as follows:—
55. Married women must be honoured and adorned by their
fathers and brethren, by their husbands, and by the brethren of
their husbands, if they seek abundant prosperity.
56. Where females are honoured there the deities are pleased; but
where they are dishonoured, there, all religious acts become
fruitless.
57. Where female relations are made miserable, the family of him
who makes them so, very soon wholly perishes; but, where they
are not unhappy, the family always increases.
58. On whatever houses the women of a family, not being duly
honoured, pronounce an imprecation, those houses, with all that
belong to them, utterly perish, as if destroyed by a sacrifice for
the death of an enemy.
59. Let those women, therefore be continually supplied with
ornaments, apparel and food at festivals and at jubilees, by men
desirous of wealth.
60. In whatever family the Husband is contented with his wife,

and the wife with her husband, in that house will fortune be
assuredly permanent.
It was in the background of above Hindu shastric Law that
sections 18 to 21 of Hindu Adoptions & Maintenance Act, 1956 were
enacted. These sections are as under:
18. Maintenance of wife.—(1) Subject to the provisions of this
section, a Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained by
her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her
husband without forfeiting her claim to maintenance -
(a) if he is guilty of desertion, that is to say, of
abandoning her without reasonable cause and without her
consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a
reasonable apprehension in her mind that it will be
harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his
wife is living or habitually resides with a concubine
elsewhere;
(f) if he has ceased to be a Hindu by conversion to another
religion;
(g) if there is any other cause justifying her living
separately.
(3) A Hindu wife shall not be entitled to separate residence and
maintenance from her husband if she is unchaste or ceases to be a
Hindu by conversion to another religion.
19. Maintenance of widowed daughter-in-law.— (1)A Hindu
wife, whether married before or after the commencement of this
Act, shall be entitled to be maintained after the death of her
husband by her father-in-law:
Provided and to the extent that she is unable to maintain herself
out of her own earnings or other property or, where she has no
property of her own, is unable to obtain maintenance—
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable
if the father-in-law has not the means to do so from any
coparcenary property in his possession out of which the daughter-
in-law has not obtained any share, and any such obligation shall
cease on the re-marriage of the daughter-in-law.
Duty to maintain—General 203
20. Maintenance of children and aged parents.— (1) Subject to

the provisions of this section a Hindu is bound, during his or her
lifetime, to maintain his or her legitimate or illegitimate children
and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from
his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or
infirm parent or a daughter who is unmarried extends insofar as
the parent or the unmarried daughter, as the case may be, is
unable to maintain himself or herself out of his or her own
earnings or other property.
Explanation: In this section “parent” includes a childless step-
mother.
21. Dependants defined— For the purposes of this Chapter
"dependants" mean the following relatives of the deceased:—
(i) his or her father;
(ii) his or her mother;
(iii) his widow, so long as she does not re-marry;
(iv) his or her son or the son of his predeceased son or the son
of a predeceased son of his predeceased son, so long as he is a
minor: provided and to the extent that he is unable to obtain
maintenance, in the case of a grandson from his father's or
mother's estate, and in the case of a great-grandson, from the
estate of his father or mother or father's father or father's mother;
(v) his or her unmarried daughter, or the unmarried daughter
of his predeceased son or the unmarried daughter of a
predeceased son of his predeceased
……………………………………
Similarly section 125 of Criminal Procedure Code, 1973 also cast
a duty to maintain to prevent vagrancy and destitution. This has been
dealt with in more detail in the chapter relating to ‘Summery Remedy’.
This chapter relates to the duty of various persons to maintain the
dependants especially the husband to maintain the wife.
General
It is the duty of husband especially under Hindu law to maintain
his wife. A matrimonial alliance which is nurtured and sustained through
love and affection is like a tender plant which withers away in the
absence of sun and water for its growth. In the words of Sprat.
“A great proportion of the wretchedness which has embittered
married life, has originated in a negligence of trifles. Connubial
happiness is a thing of too fine a texture to be handled roughly. It
is a sensitive plant. Which will not bear even the touch of
unkindness; a delicate flower, which indifference will chill and
suspicion blast. It must be watered by the showers of tender
affection, expanded by the cheering glow of kindness, and

guarded by the impregnable barrier of unshaken confidence. Thus
matured it will bloom with fragrance in every season of life, and
sweeten even the loneliness of declining years”. 1
The ancient Hindu Society has always placed the wife on a high
pedestal. It is said that , “, ‘the house (building) is not the house’. The
mistress of the house is said to be the house. A house without the lady of
the house is worse than a dreary forest”.
Manava Dharma Sastra or the Institutes of Manu with the Gloss
of Kulluka, comprising the Indian system of duties, religious and civil 2,
read as follows:—
55. Married women must be honoured and adorned by their
fathers and brethren, by their husbands, and by the brethren
of their husbands, if they seek abundant prosperity.
56. Where females are honoured there the deities are pleased;
but where they are dishonoured, there, all religious acts
become fruitless.
57. Where female relations are made miserable, the family of
him who makes them so, very soon wholly perishes; but,
where they are not unhappy, the family always increases.
58. On whatever houses the women of a family, not being
duly honoured, pronounce an imprecation, those houses, with
all that belong to them, utterly perish, as if destroyed by a
sacrifice for the death of an enemy.
59. Let those women, therefore be continually supplied with
ornaments, apparel and food at festivals and at jubilees, by
men desirous of wealth.
60. In whatever family the Husband is contented with his
wife, and the wife with her husband, in that house will
fortune be assuredly permanent. 3
Under the old Hindu Law a person was under personal obligation
to maintain the wife from the moment of marriage, whether he is
possessed of any property or not. Though under the Hindu Women’s
1 Manali Singhal vs. Ravi Singhal, 1998 (6) AD 749: 1999 (77) DLT
700: AIR 1999 Del 156: 1998(6) AD(Delhi) 749: 1999(77) DLT 693:
1999(1) DMC 355: 1999 RLR 133: 1999(1) RCR(Civil) 436.
2 translated by Sir Willian Jones and collated with the Sanskrit Text
by Grayes Chammey Hughten, Esq. Third Edition, Chapter 3
verses 55 to 60
3 Meera Nireshwalia vs. Sukumar Nireshwalia, AIR 1994 Mad
168 (DB).
Duty to maintain—Burden of proof 205
Rights to Property Act of 1937, women were conferred with rights of

succession, their rights of maintenance were not affected. But option was
given to the Hindu widow to claim a share in the property or
maintenance, whichever was more favourable to her. After the Hindu
Married Women’s Rights to Separate Residence and Maintenance Act,
1946, which came into force on 23.4.1996, every married woman
becomes entitled to separate residence and maintenance against her
husband on one or more of the seven grounds mentioned therein.
Thereafter, in 1956, the Hindu Adoptions & Maintenance Act was
enacted. 1
Similar duty has been cast on dependents of a Muslim women
under the provisions of Muslim Women (Protection of Rights on
Divorce) Act, 1986.
Burden of proof
It is not possible to take a view that to constitute desertion under
Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act, not
only desertion but desertion with the animus to do so has to be
established by the plaintiffs in a suit for maintenance. It has to be
noticed that Section 18 of the Maintenance Act has been enacted
exclusively for the benefit of the Hindu wife, who might be required to
live separately from her husband; and Clauses (a) of Sub-section (2)
thereof provides that if a Hindu wife lives separately from her husband,
for that reasons alone she would not forfeit her right to claim
maintenance in case her husband is guilty of desertion without
reasonable cause and without her consent or against her wish or wilfully
neglecting her. The Parliament has taken care to make clear what in the
context the expression ‘desertion’ means. The expression ‘that is to say’
of abandoning her after the word ‘desertion is of great significance. 2
The expression ‘desertion’ as a ground for divorce between the
parties to the marriage, need not be identical to that of the expression
‘desertion’ in the context of the claim for maintenance by the wife,
deserted or neglected. For the purpose of ‘divorce’ under Section 13 of
the Marriage Act, the petition could be either by the husband or wife;
and the desertion could be either by the husband or the wife. Divorce
cuts away the matrimonial tie completely; and the desertion to be used
as a ground for such a relief should be of a higher degree; naturally it
has to be desertion coupled with the animus to do so. That appears to
1 Neelakanta Muthuraja vs. Chinnammal, II (1999) DMC 176.

2 Raghavan Radhakrishnan vs. Satyabhama Jayakumari, I (1986)
DMC 87 Kerala.
have been the legislative policy behind the rigidity in the matter of
proof in regard to the expression ‘desertion’ as used in Section 13 of
the Marriage Act in contrast to the expression used in Clauses (a) of
Sub-section (2) of Section 18 of the Maintenance Act. If that rigidity by
reading into the clause the word ‘animus’, which the Legislature has
not chosen to incorporate, is insisted upon, it would defeat the very
purpose of the legislation for protecting the interests of the abandoned
and neglected wives. 1
Daughter in law
Under Section 19 of the Hindu Adoptions & Maintenance Act,
1956, the liability of the father-in-law to maintain the widowed
daughter-in-law arises only if he is in possession of coparcenary
property. No liability arises when the father-in-law is not in possession
of coparcenary property. The statutory liability of the father-in-law to
maintain the widowed daughter-in-law in the event of his having
coparcenary property passed on his death to the heirs inheriting his
property. This is what is provided under Section 22. If there is no
statutory liability for the father-in-law to maintain his widowed
daughter-in-law the heirs taking his property cannot be saddled with
any such obligation. Section 22 does not create any independent
statutory obligation for the father-in-law to maintain the widowed
daughter-in-law. The statutory obligation is created only under Section
19 and if he dies leaving no coparcenary property his heirs inheriting
his property are under no legal obligation to maintain the widowed
daughter-in-law. A harmonious construction of Section 19 to 22 can
only lead to such interpretation. Otherwise we see the anomaly of a
father-in-law having no coparcenary property and having no legal
obligation to maintain his widowed daughter-in-law during the lifetime
and yet, after his death, his heirs taking his property are statutorily
made liable to maintain the daughter-in-law. The legislature would not
have intended such an anomalous situation and an interpretation leading
to an illogical conclusion should not be favoured. It follows that as the
father-in-law died without leaving any coparcenary property, his heirs
inheriting his self-acquired property, namely, the appellant is under no
obligation to maintain the widowed daughter-in-law. 2
1 Raghavan Radhakrishnan vs. Satyabhama Jayakumari, I (1986)

DMC 87 Kerala.
2 M. Janakiraman vs. Meenakshi Ammal, II (1986) DMC 45 Madras.
Duty to maintain—Duty of married daughter 207
Determination of neglect
When husband failed to examine himself to prove that divorced
wife was duly maintained, neglect by husband can be inferred and claim
of maintenance can not be denied on the ground of divorce. 1
Duty of married daughter

Clause (a) deals with the right of the wife who is unable to
maintain herself to claim maintenance from her husband. Clause (b)
deals with the right of the children, who are minor, to get maintenance
from their parents. Within the import of Clauses (b) even a married
daughter is included. Clause (c) deals with a disabled child who has
attained majority. The bracketed portion “not being a married daughter”
covers only Clause (c) and not the other sub-clauses of Section 125(1) of
the Code. This is obvious from the use of specific expression “whether
married or not” in Sub-clauses (b) of Section 125(1). Then comes Sub-
clause (d) which confers a right upon a father or mother unable to
maintain himself or herself to claim maintenance. The word “person” he
not defined in the Code, nor the expression “his” is defined. However, by
Section 2(y) it is laid down that the words and expression used therein
and not defined but defined in the Penal Code have the meaning
respectively assigned to them in that Code Section 8 of the Penal Code
have the meanings respectively assigned to them in that Code. Section 8
of the Penal Code reads as under:—
“Gender. The pronoun ‘he’ and its derivatives are used of any
person, whether male or female.
Section 11 of General Clauses Act, 1897 defines the word
“person”, which includes any Company or Association, or body of
persons, whether incorporated or not. The definition of the word
“person” is inclusive and, therefore, obviously not exhaustive. Section
13(1) of the General Clauses Act lays down that in all Central Acts and
Regulations, unless there is anything repugnant in the subject or context,
words importing the masculine gender shall be taken to include females.
The word “person” is defined in Section 3(42) of the General Clauses
Act and the definition is akin to the definition in Section 11 of the Penal
Code. Further, by Section 2(y) of the Cr.P.C. it is provided that the
words and expression used in the Code are to be understood as defined
by the Penal Code. Therefore, it is quite clear that the pronoun “he” and
its derivatives as used in Section 125 of the Cr.P.C. would include in its
import, both a male or a female. Section 125(1)(d) contains no words of
1 Bai Tahira vs. Ali Hussain Fissalli Chothia, AIR 1979 SC 362: 1979
CrLJ 151: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC) 616.
limitation to justify the exclusion of a married daughter from the scope

of the said section. 1
“Section 125, Cr.P.C. does not contain any provision prohibiting
a father from claiming maintenance from a married daughter. The
submission that once a daughter is married, she belongs to a
different family and has, therefore, no liability to maintain her
father, has no merit in it. The daughter does not cease to be the
daughter after she is married into another family. If she has
sufficient means of her own, the obligation is cast on her to took
after her parents who are otherwise unable to maintain
themselves.”
Further, the Andhra Pradesh High Court has also observed:
“It cannot be that if there are no sons but daughters, the parents
have to remain destitute though the married daughters have
sufficient means of their own to provide for maintenance of their
destitute parents.”
A similar view is taken by the Kerala High Court in M. Areefa
Beevi v. Dr. K.M. Sahib. 2 In that case the Kerala High Court has
considered the decision of the Punjab and Haryana High Court in Raj
Kumari v. Yashodha Devi.
The decision of the Punjab and Haryana High Court is based on a
passage from the report of the Joint Committee of the Parliament. The
said report reads as under:—
“The Committee considers that the right of the parents not
possessed or sufficient means, to be maintained by their son
should be recognized by making a provision that where the father
or mother is unable to maintain himself or herself an order for
payment of maintenance may be directed to a son who is
possessed of sufficient means if there are two or more children
the parents may seek the remedy against any one or more of
them.”
After quoting this part of the report, the Kerala High Court
observed:—
“Here instead of using the expression ‘sons’, the expression used
is ‘children’. This is indicative of the intention of the legislature
that no distinction was intended to be made between son and
daughter. The cumulative effect of all these leads me to the
conclusion that under Section 125 of the Cr.P.C. a daughter also
has the liability to maintain her parents who have no ostensible
means of livelihood.”
1 As observed by the Andhra Pradesh High Court in Repalli

Masthanamma’s case (1982) 1 Andh WR 393.
2 1983 Crl. LJ 412.
Duty to maintain—Duty of son 209
Therefore no distinction can be made between a married on an

unmarried daughter in that behalf, since even after the marriage the
daughter continues to be the daughter and her obligation to maintain her
infirm parents, who are unable to maintain themselves, does not come to
an end. 1
It is true that Cl. (d) of section 125 of Criminal Procedure Code,
1973 has used the expression ‘his father or mother’ but the use of the
word ‘his’ does not exclude the parents claiming maintenance from their
daughter. Section 2(y), Cr. P.C. provides that words and expressions
used herein and not defined in the Indian Penal Code have the meanings
respectively assigned to them in that Code. Section 8 of the Indian Penal
Code lays down that the pronoun ‘he’ and its derivatives are used for any
person whether male or female. Thus, in view of Section 8, IPC read
with Section 2(y), Cr. P.C. the pronoun ‘his’ in Cl. (d) of Section 125(1),
Cr. P.C. also indicates a female. Section 13(1) of the General Clauses
Act lays down that in all Central Acts and Regulations, unless there is
anything repugnant in the subject or context, words importing the
masculine gender shall be taken to include females. Therefore, the
pronoun ‘his’ as used in Cl. (d) of Section 125(1), Cr. P.C. includes both
a male and a female. In other words, the parents will be entitled to claim
maintenance against their daughter provided, however, the other
conditions as mentioned in the section are fulfilled. Before ordering
maintenance in favour of a father or a mother against their married
daughter, the Court must be satisfied that the daughter has sufficient
means of her own independently of the means or income of her husband,
and that the father or the mother, as the case may be, is unable to
maintain himself or herself. 2 Thus with this caveat the Supreme Court
affirmed the above decision of High Court.
Duty of son
Whether a son is liable to maintain his mother during the life time
of his father, the law appears to be in complete agreement with the Hindu
social morality. Now both our statutory law and case law on this point
fully recognize the obligation of the son to maintain both during the life
time of the father and even thereafter his mother. In Mulla’s Principles
of Hindu Law (Paragraph 548) it is stated:
1 Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai, II (1986) DMC

370 Bombay.
2 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, AIR
1987 SC 1100: 1987(2) SCC 278: 1987(2) SCR 331: 1987(1) Scale
379: 1987(3) J.T. 46: 1987 Mat. L.R. 139.
“A son is under a personal obligation to maintain his aged father.

He is also under a similar obligation to maintain her, whether or
not he has inherited property from his father.”
Subbarayana vs. Subbakka 1 and Satyanarayana Murthy vs. Ram
Subbamma 2 are cited by Mulla for this Principle of Hindu Law.
Section 20(1) of the Hindu Adoptions & Maintenance Act gives a
statutory recognition to this obligation of son to maintain his mother.
According to this section ‘a Hindu is bound during his or her life time to
maintain his or her legitimate or illegitimate children and his or her aged
or infirm parents.’
The language of this section is clear in casting an immediate and
unalterable duty on the son to maintain his aged or infirm parents. The
section casts an obligation on a son to maintain his mother without
reference to the fact whether the father is alive or dead. The obligation of
the son to maintain his aged or infirm parents extends even when both
parents are alive. Enforcement of that obligation cannot be postponed till
the death of one of the parents. 3
Duty to maintain children

Section 3(1) of Muslim Women (Protection of Rights on Divorce)
Act, 1986, deals with “Mahr” or other properties of a Muslim woman to
be given to her at the time of divorce. It lays down that a reasonable and
fair provision has to be made for payment of maintenance to her during
the period of Iddat by her former husband. Clause (b) of Section 3(1)
(supra) provides for grant of additional maintenance to her for the
fosterage period of two years from the date of birth of the child of
marriage for maintaining that child during the fosterage. Maintenance for
the prescribed period referred to in Clause (b) of Section 3(1) is granted
on the claim of the divorced mother on her own behalf for maintaining
the infant/infants for a period of two years from the date of the birth of
the child concerned who is/are living with her and presumably is aimed
at providing some extra amount to the mother for her nourishment for
nursing or taking care of the infant/infants upto a period of two years. It
has nothing to do with the right of the child/children to claim
maintenance under Section 125, Cr. P.C. So long as the conditions for
the grant of maintenance under Section 125, Cr. P.C. are satisfied, the
rights of the minor children, unable to maintain themselves, are not
affected by Section 3(1)(b) of the 1986 Act. Under Section 125, Cr. P.C.
1 1885 Mad. 236.

2 AIR 1964 AP 105.
3 Vishnuvajhula Venkata vs. Subrahmanyam, II (1985) DMC 201
Hyderabad.
Duty to maintain—Effect of support of relatives 211
the maintenance of the children is obligatory on the father (irrespective

of his religion) and as long as he is in a position to do so and the
children have no independent means of their own, it remains his absolute
obligation to provide for them. Insofar as children born of Muslim
parents are concerned there is nothing in Section 125, Cr. P.C. which
exempts a Muslim father from his obligation to maintain the children.
These provisions are not affected by clause (b) of Section 3(1) of the
1986 Act and indeed it would be unreasonable, unfair, inequitable and
even preposterous to deny the benefit of Section 125, Cr. P.C. to the
children only on the ground that they are born of Muslim parents. The
effect of a beneficial legislation like Section 125, Cr. P.C., cannot be
allowed to be defeated except through clear provisions of a statute. We
do not find manifestation of any such intention in the 1986 Act to take
away the independent rights of the children to claim maintenance under
Section 125, Cr. P.C. where they are minor and are unable to maintain
themselves. Muslim father’s obligation, like that of a Hindu father, to
maintain his minor children as contained in Section 125, Cr.P.C. is
absolute and is not at all affected by Section 3(1)(b) of the 1986 Act.
Indeed a Muslim father can claim custody of the children born through
the divorced wife to fulfil his obligation to maintain them and if he
succeeds, he need not suffer an order or direction under Section 125,
Cr.P.C. but where such custody has not been claimed by him, he cannot
refuse and neglect to maintain his minor children on the ground that he
has divorced their mother. The right of the children to claim maintenance
under Section 125, Cr.P.C. is separate, distinct and independent of the
right of their divorcee mother to claim maintenance for herself for
maintaining the infant children upto the age of 2 years from the date of
birth of the concerned child under Section 3(1) of the Act. There is
nothing in the 1986 Act which in any manner affects the application of
the provisions of Sections 125-128 of the Cr.P.C. relating to grant of
maintenance insofar as minor children of Muslim parents, unable to
maintain themselves, are concerned. 1
While it is both possible and desirable to bring about a clean
break as between husband and wife, it is neither possible nor desirable to
bring about a clean break between father and son.
Effect of support of relatives

In one case the wife had candidly stated that she had been solely
depending on her parents for her livelihood. The fact that even after the
1 Noor Sabba Khatoon v. Mohd. Quasim, 1997 CrLJ 3972: 1997 AIR
(SC) 3280: 1997 CrLR (SC) 536: 1997 SCC (Cr) 924: 1997(3)
Crimes 106: 1997(2) Ker LT 363: 1997(2) Pat LJR 110.
impact of modern life, familial nexus is cherished and nurtured in this

country, and consequently a helpless daughter and grandchildren happen
to be cared for and looked after, by the parents or grandparents, as the
case may be, is no ground for the husband to disown his own legal
responsibility in the matter. 1
Nature of obligation
Under the Hindu law the liability to maintain others arises in a
two-fold manner:
(a) from the existence of a particular relationship independent of
the possession of any property,
(b) on possession of property.
In the first category fall the cases of the liability to maintain a
person’s wife, minor sons, and unmarried daughters and aged parents.
Here the obligation is personal and is brought into existence by the
relationship. In the other category are those where the liability is
dependent on the possession of coparcenary property. Assuredly the
liability to provide for the maintenance of the disqualified heir under the
Hindu law would fall under the latter category also, i.e., it is not
confined to the particular relationships which cast the obligation to
maintain. Thus a brother would have to be maintained out of the joint
property where he is disqualified from claiming partition. No doubt, the
texts deny him the right to partition but that is not the subject matter of
the discussion here. If the right to be maintained is traceable to his right
to the property in which he is excluded from participating in full, it
would not be a violent inference to hold that he has an incipient and
vestigial interest in that property which is not capable of being asserted
against other coparceners, but when there is none entitled to enjoy it as
coparcener, blossoms into a full right. 2
Refusal to join
The right to be maintained by the husband stems from
performance of marital duty. It is only when the Court inter alia comes
to the finding that the wife claiming maintenance had been prevented
from performing the marital duty by the husband that she could be
awarded maintenance. When it is found that the wife declines to live
1 Radha Kumari vs. K.M.K. Nair, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
2 Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349:
1965(2) MadLJ (SC) 122: 1965(2) SCJ 638.
Duty to maintain—Scope of obligation of husband 213
with husband without any just cause and there is no evidence of ill-
treatment by the husband, wife is not entitled to maintenance. 1
In this case, it was noticed that the husband had even sent a
registered notice to the wife asking her to stay with him but she refused
to accept the notice. She was therefore held to be not entitled to
maintenance. 2
Scope of obligation of husband

The Hindu Law Texts and the important commentaries impose a
legal personal obligation on a husband to maintain his wife irrespective
of his possession of any property, whether joint or self-acquired. They
recognize the subordinate interest of the wife in her married status. They
also prohibit the alienation of properties by the husband which has the
effect of depriving her and other dependents of their maintenance. They
further treat her as a member of a Hindu joint family entitled to be
maintained out of joint funds. The decisions of the various High Courts
to the same line, recognize her subordinate interest in her husband’s
property, and enforce his personal obligation by creating a charge on his
properties either self-acquired or ancestral. A wife, therefore, is entitled
to be maintained out of the profits of her husband’s property and, if so,
under the express terms of Section 39 of the T.P. Act, she can enforce
her right against the properties in the hands of the alienee with notice of
her claim. 3
When the husband is alive, he is personally liable for the wife’s
maintenance, which is also a legal charge upon his property, this charge
being a legal incident of her marital co-ownership in all her husband’s
property. But after his death, his widow’s right of maintenance becomes
limited to his estate, which when it passes to any other heir, is charged
with the same. There cannot be any doubt that under Hindu Law, the
wife’s or widow’s maintenance is a legal charge on the husband’s estate,
but the Courts appear to hold, in consequence of the proper materials not
being placed before them, that it is not so by itself, but is merely, a claim
against the husband’s heir, or an equitable charge on his estate; hence the
husband’s debts are held to have priority, unless it is made a charge on
the property on the property by a decree. 4
1 Bheekha Ram vs. Goma Devi, 1999(1) HLR 543 Rajasthan.

2 Bheekha Ram vs. Goma Devi, ibid.
3 Banda Manikyam vs. Banda Venkayamma, AIR 1957 AP 710.
4 Vaddeboyina Tulasamma vs. V. Sesha Reddi, 1977 (3) SCR 261;
AIR 1977 SC 1944; 1977 (3) SCC 99.
Therefore, according to Sastri’s interpretation of Shastric Hindu

Law the right to maintenance possessed by a Hindu Widow is a very
important right which amounts to a charge on the property of her husband
which continues to the successor of the property and the wife is regarded
as a sort of co-owner of the husband’s property though in a subordinate
sense i.e. the wife has no dominion over the property. The Hindu female’s
right to maintenance is not an empty formality or an illusory claim being
conceded as a matter of grace and generosity, but is a tangible right
against property which flows from the spiritual relationship between the
husband and the wife and is recognized and enjoined by pure Shastric
Hindu Law and has been strongly stressed even by the earlier Hindu jurists
starting from Yajnavalkaya to Manu. Such a right may not be a right to
property but it is a right against property and the husband has a personal
obligation to maintain his wife and if he or the family has property, the
female has the legal right to be maintained therefrom. If a charge is
created for the maintenance of a female, the said right becomes a legally
enforceable one. At any rate, even without a charge the claim for
maintenance is doubtless a pre-existing right. 1
Under the Hindu law the liability to maintain others arises in a two-
fold manner: (a) from the existence of a particular relationship independent
of the possession of any property, (b) on possession of property. In the first
category fall the cases of the liability to maintain a person’s wife, minor
sons, and unmarried daughters and aged parents. Here the obligation is
personal and is brought into existence by the relationship. In the other
category are those where the liability is dependent on the possession of
coparcenary property. Assuredly the liability to provide for the maintenance
of the disqualified heir under the Hindu law would fall under the latter
category also, i.e., it is not confined to the particular relationships which
cast the obligation to maintain. Thus a brother would have to be maintained
out of the joint property where he is disqualified from claiming partition.
No doubt, the texts deny him the right to partition but that is not the subject
matter of the discussion here. If the right to be maintained is traceable to his
right to the property in which he is excluded from participating in full, it
would not be a violent inference to hold that he has an incipient and
vestigial interest in that property which is not capable of being asserted
against other coparceners, but when there is none entitled to enjoy it as
coparcener, blossoms into a full right.2
1 Vaddeboyina Tulasamma vs. V. Sesha Reddi, 1977 (3) SCR 261;

AIR 1977 SC 1944; 1977 (3) SCC 99.
2 Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349:
1965(2) Mad LJ (SC) 122: 1965(2) SCJ 638.
Persons entitled to maintenance—Aspiring wife 215
Chapter 6
Persons entitled to maintenance
SYNOPSIS
Introduction....................................215 Non working husband .................... 229
Aspiring wife ..................................215 Parents of married daughter ......... 230
Children .........................................216 Right of divorced wife.................... 231
Concubine ......................................216 Right of Hindu widow .................... 231
Coparcener ....................................217 Right of husband ............................ 232
Daughter-in-law.............................218 Right of illegitimate son ................ 232
Divorced wife .................................219 Right of unmarried daughter ......... 233
Father of illegitimate child ............221 Siblings .......................................... 233
Finding of legitimacy .....................221 Statutory right................................ 233
Husband .........................................222 Unborn child.................................. 234
Illegitimate child ............................223 Unmarried daughter ...................... 234
Major children ...............................225 Widowed daughter ......................... 235
Masculine includes feminine ..........226 Widowed daughter-in-law ............. 235
Minor children ...............................228 Wife................................................ 236
Mother ............................................228 Wife from void marriage ............... 238
Introduction
Every person is not entitled to maintenance. It only certain class
of persons who have been considered socially and economically weaker
and therefore been provided maintenance from different sources. The
source of this legislation is generally custom, shastric law, as also social
practices etc. as prevail in the country.
Aspiring wife
The non-applicant did not claim to be the legally wedded wife of
the applicant Suresh and claimed relief of prohibitory injunction against
non-applicantthat he should not marry elsewhere. In view of the
aforesaid fact, it was held that the non-applicant is not entitled to get any
maintenance under any law for the time being in force during the
pendency of the suit filed by the non-applicant. As such, the impugned
order of the Trial Court awarding maintenance pendente lite is prima
facie illegal and in excess of the jurisdiction vested in the Court and
deserves to be set aside. 1
Children
It is the duty of father to maintain the children. Where wife is
carrying on business, she is prima facie not entitled to maintenance but
children are entitled to maintenance. 2
The need of the child is as much the need of the mother, because a
mother is not expected to neglect the need of the child and is on the contrary
expected to meet the need of the child even at the expenses of her own
maintenance. It was therefore held that there is no doubt that while granting
maintenance under Section 24 of the Act to a wife not only her own need
for maintenance of herself would be considered but if she had a child to
look after, need of the child shall also be taken into account.3
The word ‘wife’ or the ‘husband’ should not be interpreted in
such a strict and literal sense so as to rule out grant of maintenance to
the children who live with the wife and are dependent upon her. When
the children live with the wife and in the very nature of the
circumstances, the requirement of wife will include the requirement of
minor children dependent on her and living with her. That is borne out
from the reading of Section 24 of the Hindu Marriage Act, 1955. 4
Concubine
If a man and a woman choose to live together and indulge into
sex no such married status can be conferred automatically by their so
living upon such a woman. No legal status of a wife she is entitled to
in the eyes of law and society. Both law and society treat such woman
either a concubine or a mistress of that person with whom she is so
living. The two may also agree to live together to satisfy their animal
needs. But such a union is never called a married nor a woman leading
such life is bestowed with the sacrosanct honour of a wife. No marital
obligations accrue to such a woman against her husband. Secondly
such a life is called adultery. The applicant has to prove her status
under personal law before she can legally be entitled to maintenance
from her spouse. 5
1 Suresh vs. Nanubai, I (2001) DMC 426 MP.

2 Pushpa Kathju vs. Amit Mohan S. Dahiya Badshad, 1996 (62) DLT
525: 1996 MLR 258: 1996(3) AD(Delhi) 353.
3 Rajendra Kumar vs. Savitribai, I (1992) DMC 567 MP.
4 Pushpa Devi vs. Om Prakash, II (1985) DMC 107 Raj.
5 Malti vs. State of Uttar Pradesh, I (2001) DMC 204 All.
Persons entitled to maintenance—Coparcener 217
In one case the alleged husband claimed that he was not married
to her at all. She was working in his house as a cook and in the process
an illicit intimacy developed between them. They started living together
as husband and wife due to the aforesaid illicit relationship. It was held
that it was not enough to declare that they are married person or
applicant was married to the opposite party. While denying the
maintenance, it was observed as under:
‘The applicant has proved, by evidence, that she initially was
married to one Devi Das and from his house she had eloped and
lived, in between with several persons before becoming intimate
with the applicant. This in law is not enough to declare any
woman a legally wedded wife. Wife means a legally wedded wife
according to Section 125, Criminal Procedure Code. There ought
to be married according to religion or customs prevalent amongst
their community. A marriage carries a legal social or religious
sanction behind it. It can be broken only in the manner prescribed
either by law, religion or custom prevalent amongst the parties to
any such marriage. It provides a guarantee and also a sense of
security to the woman why enters into such nuptial bondage
especially. In the present case there is evidence on record, as
admitted by her, that she was turned out of the applicant’s house
by his wife after the administration of beating to her. 1
A Brahmin woman and her illegitimate son of Sudra father are
entitled to maintenance from the Estate after the death of father. The
claim of maintenance cannot be defeated on account of caste of the
woman. This position has remained unaffected by provisions of Hindu
Adoptions and Maintenance Act, 1956. 2
Coparcener
In the case of an ordinary joint family property, the members of
the family can claim four rights:
(1) the right of partition;
(2) the right to restrain alienations by the head of the family
except for necessity;
(3) the right of maintenance;
(4) the right of survivorship. 3
1 Malti vs. State of Uttar Pradesh, I (2001) DMC 204 All.

2 Amireddy Raja Gopala Rao v. Amireddi Sitharamamma, AIR 1965
SC 1970: 1965(2) SCWR 889: 1965(3) SCR 122.
3 Mirza Raja Pushpavathi Vijayaram vs. Sri Pushavathi Visweswar,
AIR 1964 SC 118: 1964(2) SCR 403; Shiba Prasad Singh vs. Rani
Prayag Kumari Debi, AIR 1932 PC 216.
The characteristic feature of ancestral coparcenary property is

that members of the family acquire an interest in the property by birth or
adoption and by virtue of such interest they can claim for right: (1) the
right of partition; (2) the right to restrain alienations by the head of the
family except for necessity; (3) the right of maintenance; and (4) the
right of survivorship. 1 Though a coparcener has a right to seek
maintenance. The member is entitled to maintenance so long as the
family remains joint. 2
Daughter-in-law
Under the Hindu law there is a moral obligation on the father-in-
law to maintain the daughter-in-law and the heirs who inherit the
property are liable to maintain the dependants. It is the duty of the Hindu
heirs to provide for the bodily and mental or spiritual needs of their
immediate and nearer ancestors to relieve them from bodily and mental
discomfort and to protect their souls from the consequences of sin. They
should maintain the dependants of the persons of property they
succeeded. Merely because the property is transferred by gift or by will
in favour of the heirs the obligation is not extinct. When there is property
in the hands of the heirs belonging to the deceased who had a moral duty
to provide maintenance, it becomes a legal duty on the heirs. It makes no
difference whether the property is received either by way of succession
or by way of gift or will, the principle being common in either case. The
moral obligation of a father-in-law possessed of separate or self-acquired
property to maintain the widowed daughter-in-law ripens into a legal
obligation in the hands of persons to whom he has either bequeathed or
made a gift of his property. 3
Under section 19 of Hindu Adoptions and Maintenance Act one
of the conditions for the father-in-law to maintain the daughter-in-law is
that the daughter-in-law is not able to maintain herself from the estate of
her parents. A clear finding is necessary whether her parents have estate
sufficient to maintain her and on what circumstances, she is unable to
maintain herself or by her parents. For this purpose parents of plaintiff
are required to be heard. This is possible if they are made parties to the
suit. In their absence any finding will not bind them. Where, from the
estate of the parents, the daughter-in-law can maintain herself, question
of obligation of father-in-law does not arise. It is also to be found out
1 Maharaja Pratap Singh vs. Maharani Sarojini Devi, 1993 Supp(1)

SCR 607: 1994 Supp (1) SCC 734: 1993 (2) HLR 272.
2 Parbati Devi (Mt.) vs. Bansi Dhar, AIR 1943 All 360.
3 T. A. Lakshmi Narasamba vs. T. Sundaramma, AIR 1981 AP
88 (FB).
Persons entitled to maintenance—Divorced wife 219
whether there is any coparcenary property in the hands of the father-in-

law from which daughter-in-law is deprived of her share. 1
Divorced wife
Right of divorced wife to seek maintenance is not affected under
the new Code wherein dissolution of marriage makes no difference on
right to seek maintenance. 2
The word ‘wife’ in the sub-section does not have the extended
meaning including a woman who has been divorced. In other words, the
wordings contained in the said sub-section “if they are living separately
on mutual consent” would apply to the wife who is not divorced. After
divorce there is no question “mutual consent to live separately”.
Therefore, Section 125(4), Criminal Procedure Code, does not operate. 3
After divorce the concept of living together being not enforceable
under law, custom or practice, the factum of separate living does not by
itself disentitle the divorce to claim for maintenance under Section 125
of the Code. Thus on a logical corollary it can well be recorded that the
fact of desertion on which a decree of divorce was granted against the
wife i.e., the divorced wife, the fact cannot be extended to post decree
period. The factum of divorce and the change of the status from wife to
divorced wife is a supervening circumstance which the Court,
adjudicating the claim of maintenance under Section 125 of the Code,
should not ignore. In this case it was held that no doubt, learned
Magistrate did not specifically record about the supervening
circumstance, but it is apparent from the impugned order the
notwithstanding the separate living of the opposite party, her claim for
maintenance was allowed because she is a divorced wife. 4
Even accepting that an agreement was executed by both the
parties willingly, that would only show that there is a divorce on mutual
consent. Section 125(4), Criminal Procedure Code will be applicable to
the parties only when they decide to live separately by mutual consent
temporarily. Once the marriage is dissolved, mutual consent for living
1 Raj Kishore Mishra vs. Meena Mishra, AIR 1995 All 70 (DB).
2 Bai Tahira v. Ali Hussain Fissalli Chothia and another, 1979 CrLJ
151: AIR 1979 SC 362: 1979 SCC (Cr) 473: 1978 CAR 418: 1978
CrLR (SC) 616.
3 K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras:
1999(1) HLR 3.
4 Jashelal Agrawal @ Jain vs. Puspabati Agarwala, I (2000) DMC 592
Orissa: 1999(1) HLR 175.
separately as contemplated under Section 125(4), Criminal Procedure

Code would not come into play at all. 1
The legal position so far as the right of divorced wife to get
maintenance under Section 125 of Criminal Procedure Code has
practically been crystallised. The Hindu Marriage Act speaks of a decree
in connection with a Hindu Marriage on a number of circumstances. As a
matter of fact, there may be a decree for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act. There can also be a decree
for judicial separation in terms of Section 10 of the Hindu Marriage Act.
There may be decree passed in accordance with Section 11 of the Hindu
Marriage Act declaring a marriage as null and void. There may be a
decree under Section 12 of the Hindu Marriage Act where the marriage
was otherwise valid but due to the presence of the ground mentioned in
the said section it could be declared as void at the instance of one of the
parties to the marriage. There may also be a decree of divorce under
Section 13 of the Hindu Marriage Act at the instance of either of the
parties for contravention of the different provisions mentioned in the
said section. While an application under Section 25(1) maintainable by
either party to the marriage and the Court having jurisdiction can pass an
order under the section either at the time of passing the decree or at any
time subsequent thereto, the scope of an application under Section 125 of
Criminal Procedure Code is not so wide. Such an application is
obviously guided by Section 125(1) of the Criminal Procedure Code
since in case of husband and wife it can be preferred by the wife which
includes a woman who has been divorced by or has obtained a divorce
from her husband and has no re-married. Thus a wife during the
continuance of a valid marriage as also a divorcee in terms of the
explanation given in Clauses (b) to Section 125(1) of the Criminal
Procedure Code are eligible to maintain an application under Section 125
of the Criminal Procedure Code. By implication in the event of a
marriage being declared null and void under Section 11 of the Hindu
Marriage Act or in the event of a marriage having been annulled in terms
of Section 12 of the Hindu Marriage Act an application under Section
125 of the Criminal Procedure Code at the instance of the wife is not
maintainable. 2
1 K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras:

1999(1) HLR 3.
2 Rampada Biswas vs. Dolly Mitra, II (1999) DMC 689 Calcutta; See
also Babulal vs. Sunita I (1986) DMC 256
Persons entitled to maintenance—Finding of legitimacy 221
Father of illegitimate child

In one case it was held that assuming that the petitioner was
fathered by the respondent, even the admission of the petitioner’s mother
that she was married as a second wife, the marriage is a nullity. Nowhere
Section 125 Criminal Procedure Code contemplates that a person is
entitled to claim maintenance against his illegitimate daughter or son. 1
Finding of legitimacy
In one case the admitted facts were that the appellant and the
respondent were close relations and not strangers before marriage. They
were married on 11-5-1973 and the girl child was born on 5-12-1973.
The respondent did not divorce the. appellant immediately after the child
birth or even two or three months later but he divorced her only on 16-
10-1974. The child birth took place in the house of the respondent
himself and hence there is no question of the birth of the child not being
known to the respondent immediately. It was held that if the appellant
was pregnant even at the time of the marriage she could not have
concealed that fact for long and in any event the respondent would have
come to know of it within two or three months of the marriage and
thereupon he would have immediately protested and either discarded the
appellant or reported the matter to the village elders and relatives and
sought for a divorce. On the contrary the respondent had continued to
lead life with the appellant in a normal manner till the birth of the child.
Even the confinement appears to have taken place in his house as
otherwise the child’s birth would not have been registered in his village.
The respondent had not disowned the child immediately after its birth or
sent away the appellant to her parents’ house. Such would not have been
his conduct if he had any doubt about the paternity of the child. On the
sole ground that the child had been born in about 7 months’ time after
the marriage it cannot be concluded that the child should have been
conceived even before the respondent had consummated the marriage.
Giving birth to a viable child after 28 weeks’ duration of pregnancy is
not biologically an improbable or impossible event. 2
In “Combined Textbook of Obstetrics and Gynaecology” by Sir
Gugald Baird 3 it is reported as under:—
“In the case of Clark v. Clark (1939) 2 All ER 59 an extremely
small baby, born alive 174 days after last possible date when
intercourse with the husband could have taken place, and which
1 K. Kamaldevi vs. Kammala Kumara Sekhar, I (1994) DMC 183 AP.

2 Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049: 1987
(1) SCR 1086: 1987 (2) DMC 225 SC.
3 7th Edition at page 162
survived, was held to be legitimate. While it is most unusual for

babies of this weight or gestation period to survive it does
occasionally happen”.
It was held that the learned Judge ought not, therefore, to have
rushed to the conclusion that a child born in about 7 months’ time after
the marriage of the parents should have necessarily been conceived even
before the marriage took place. Section 112 of the Indian Evidence Act
lays down that if a person was born during the continuance of a valid
marriage between his mother and any man or within two hundred and
eighty days after its dissolution and the mother remains unmarried, it
shall be taken as conclusive proof that he is the legitimate son of that
man, unless it can be shown that the parties to the marriage had no
access to each other at any time when he could have been begotten. This
rule of law based on the dictates of justice has always made the Courts
incline towards upholding the legitimacy of a child unless the facts are
so compulsive and clinching as to necessarily warrant a finding that the
child could not at all have been begotten to the father and as such a
legitimation of the child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering a verdict
and that too, on the basis of slender materials, which will have the effect
of branding a child as a bastard and its mother an unchaste woman. 1
Lastly It was held that even if the child had been born after a full-
term pregnancy it has to be borne in mind that the possibility of the
respondent having had access to the appellant before marriage cannot be
ruled out because they were closely related and would therefore have
been moving in close terms. All these factors negate the plea of the
respondent that the minor child was not fathered by him. 2
Husband
Section 125 of the Code gives effect to the natural and
fundamental duty of a man to maintain his wife, children and parents so
long as they are unable to maintain themselves. In this context, it may be
stated that a married daughter is also not excluded from her moral
obligation to maintain her parents. The very object this Section is to
provide a speedy remedy against starvation for the persons named
therein. The remedy as provided in Section 125(1) of the Code is,
however, open only to a wife or child either legitimate or illegitimate or
to the parents of male of female, as the case may be, who are unable to
maintain themselves. But by no stretch of imagination, it can be said that
1 Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049: 1987

(1) SCR 1086: 1987 (2) DMC 225 SC.
2 Dukhtar Jahan vs. Mohammed Farooq ibid
Persons entitled to maintenance—Illegitimate child 223
that remedy is also open to a husband who is unable to maintain himself.

The husband may, under certain circumstances, seek maintenance from
his wife under-Section 24 and 25 of the Hindu Marriage Act, 1955 but
not under Section 125 of the Code. On plain reading of Section 125(1) of
the Code, right to seek maintenance is available only to the persons
named therein. 1
When there is a legal bar to claim maintenance under Section 125
of the Code by the husband against his wife, his application purported to
be an application under Section 125 of the Code is certainly not
maintainable under the Code. He may go to Civil Court for establishing
his right to claim maintenance, but the Magistrate in exercising his
power under Section 125 of the Code cannot pass an order for
maintenance in his favour. That means the Magistrate who entertains
such an application from husband under Section 125 of the Code is not
competent to pass an order for maintenance. 2
Illegitimate child
In view of the conclusive proof of legitimacy of a child born
during the continuance of a marriage in the absence of proof of no
access, the petitioner was entitled to the benefit of Section 112 of the
Evidence Act. Wisely enough and in view of the gynaecological science,
Section 112 of the Evidence Act contemplated the duration of pregnancy
of 280 days or 9 months and 10 days. On this understanding it was
observed, in view of the facts and circumstances of the case, as under:
‘Therefore, the maximum outer period of the pregnancy or
gestation in case of the petitioner should have been till 21 st June,
1988. In such a situation it was possible for the respondent No. 1
to inquire and produce evidence to show that the petitioner was
born after June, 1988 to put him out of the period of gestation and
the evidence under Section 112 of the Evidence Act. Even then
both the science and law in regard to period of gestation appears
to be something different. Two hundred and eighty days as the
possible duration of pregnancy appears to be not an invariable
rule. Actually it may be more and in several cases, the birth could
be beyond that period. Although fertilization generally takes
place at the time of coitus, there will be some interval between
insemination and fertilization when the sperm during its journey
meets the ovum. The medical evidence appear to be that such
interval may be as long as 21 days. The child born after 305 to
346 days after the last sexual intercourse or the access for sexual
1 Jayashri vs.Vibhas, I (1995) DMC 5.

2 Jayashri vs.Vibhas, ibid.
intercourse has been held to be legitimate, having due regard to

the facts and circumstances of particular cases.’ 1
In another case it was held that even assuming that the child born
was an illegitimate child, unless and until a finding to that effect is given
by the Court, the claim for maintenance is liable to be entertained. 2
The object of Section 125 of the Code is to provide a summary
remedy to save dependants fro destitution and vagrancy and this is to
serve a social purpose, apart from independent of the obligation of the
parties under their personal law. The right of the child legitimate or
illegitimate under the Code is an individual right of the child in his or on
her own right, independent of the mother. When a woman claims
maintenance on behalf of a minor child out of wedlock against his
alleged putative father, the on us is on her to show that the child could
only have been born through the alleged father under the circumstances
of an exclusive relationship. 3 In such a case the woman being a highly
interested person, the Court has a duty to see that her statement gets
some independent corroboration, direct or circumstantial, that the
claimant could have conceived the child when she and the alleged father
had access to each other.
Section 125 aims not to punish for the past, but to prevent future
vagrancy by compelling those who are capable, to support those who are
unable to support themselves and have a moral claim to support. 4 While
deciding the case of entitlement of a child paternity and not legitimacy
has to be seen. Where maintenance is claimed for an illegitimate child
from an alleged father, it is not enough that the defendant would have
been the father, but the Court has to find out that in all reasonability no
one else could have been the father. 5
It is true that the courts should spare no pains to obviate a
situation where a child is likely to suffer in respect of its reputation. It
will, however, be cruel and unjust to an innocent person toiling hard in
the desert regions, to be undeservedly attributed the paternity of a child,
for whose birth he had no part to play nor any responsibility to shoulder.
Difficult indeed is the life of many a wife who eagerly awaits the return
1 Abdul Khadar Munwar vs. Mohd. Iqbal Pasha, II (1995) DMC

250 AP.
2 Vijay Motiram Awarkar vs. Pushpa, I (1990) DMC 592 Bombay.
3 B. Mahdeva Roa vs. Yasoda Bai, AIR 1962 Mad. 141 and Durairaju
vs. Neela, 1976 Crl. LJ. 1507.
4 Jagir Kaur (Mst.) vs. Jaswant Singh, AIR 1963 SC 1521
5 Ahalya Bariha @ Barihani vs. Chhelia Padhan, I (1992) DMC
158 Ori.
Persons entitled to maintenance—Major children 225
of the dear ones after long periods of separation from home. The
psychological and sociological problems which sometimes lead to
domestic disturbances, have been, in recent times, the subject-matter of
studies by researchers in the respective disciplines. Woman, whose
intrinsic virtue and normal fidelity could be beyond question, may,
occasionally though extremely rarely, have a fatal fall along the steep
and slippery slopes of temptation. While one may sympathise with the
victim, it will, at the same time, be unjust to make an innocent person
pay for such a lapse of the other spouse. 1
In one case it was held that the perusal of the evidence led by the
husband itself shows that he was only harbouring suspicion against the
wife on the basis of some anonymous letters received by him. In his
written statement, he had not alleged any facts or circumstances which
led him to believe that suspicion either. For the first time in his
deposition, he has stated that on a particular day, he returned home
suddenly and had seen his wife with a stranger. Firstly, he has not seen
anything incriminating. Only a person was sitting. But this fact is not
alleged in his written statement. Then, he has adduced evidence to show
that she was moving out and attending cinema with one Rokde. This
specific fact is also not stated in his written statement. Moreover, no
questions to that effect were asked to the applicant during her cross-
examination on his behalf. In view of this fact it was held that it was
more than obvious that the husband had started doubting the chastity of
the wife on the basis of these anonymous letters received by him and had
therefore, driven her out of the house and had not cared for the
maintenance of the wife and children. The reasoning’s of the trial Judge
was held to be sound and rational and the view taken by the trial Court
that presumption which arises for the legitimacy of the children under
section 112 of the Evidence Act has not been rebutted by the husband
was held to be justifiable. 2
Major children
The rule of law must run close to rule of life. The idea of granting
maintenance is to see that the wife and children get a standard of living
on par with the husband. Whether it is a full meal or half a meal, each
one is entitled to a share. If a son reaches the age of eighteen, it does not
mean that as from that date he has to starve. That is not the law. It only
means that as from the age of eighteen the law takes note of the fact that
he has capacity to earn. But if he still depends on his mother either for
1 Kathichal Puthyapurayil Pathumma vs. Thundakachi Abdulla,

I (1985) DMC 231 Kerala.
2 Chakor vs. Prerna, I (1985) DMC 249 Bombay.
study or for shelter, that fact will have to be taken into account, when a
mother (of wife) is given maintenance. He is not given any maintenance.
But the one who looks after him gets it. 1
Another view is that a child is entitled to maintenance as long as
it is minor. Exception has been carved out in Sub-section (3) which
covers an unmarried daughter, but as far as a major son is concerned
there is no exception. A major son will not come within the purview of
Section 24 of the Act, to be entitled to maintenance from the father. 2
Under the new Code only minor children unable to maintain
themselves would come under this section and in the case of major
children only those who are suffering from some mental or physical
defect or injury and are unable to maintain themselves are eligible to get
the benefit under Section 125, Criminal Procedure Code. 3
As per Section 125 Criminal Procedure Code, it is clear that the
maintenance can be awarded only to minor children under Section 125
Criminal Procedure Code, whether married or not, when they are not able to
maintain themselves. Only in special circumstances the maintenance can be
awarded even after attaining the majority where such child is, by reason of
any physical or mental abnormality or injury unable to maintain herself.4
Masculine includes feminine

The definition of “person” is distinguished from “man” and
“women” “Person” may include a natural person, may be “male or
“female”, it will also include a juristic person as given in the General
Clauses Act. But where Legislature specifically intends to refer to male
human being, it may use as “man” or “women”. Taking into view these
definition and explanation in the I.P.C as well as the General Clauses
Act for the purpose of Section 125 when Section 125 uses the word
“person”, it has to be taken to include both “male” and “female”. It
means that if any “male” or “female” having sufficient means neglects or
refuses to accept “his” or “her” liability to maintain then if other
conditions of either Clauses (a), (b) or (c) of Section 125 are shown to
exist, liability may be fastened to maintain. 5
As regards child, legitimate or illegitimate child, male or female,
unable to maintain itself has got the right to be maintained by his parents
1 Gitanjali Gajanan Tendulkar vs. Gajanan Dinkar Tendulkar,

I (1990) DMC 59 Bombay.
2 Avnish Pawar vs. Sunita Pawar, II (2000) DMC 283 MP.
3 Ashan Ali vs. Musstt. Junagar Begum, I (2000) DMC 680 Gauhati.
4 K. Sivaram vs. K. Mangalamba, II (1989) DMC 452 AP.
5 S.K. Chandrika vs. Byamma, I (2000) DMC 185 Karnataka
Persons entitled to maintenance—Masculine includes feminine 227
male and female, and expression “his” has to be read as “her” also. In the
same way, under Clauses (c) expression used in legitimate or illegitimate
child, exception has no doubt been made to it clearly, by expression not
being a married daughter which is clearly indicative of the fact that the
person who has sufficient means if he has got legitimate or illegitimate
child, male or female, who has attend majority, who has physical or
mental abnormality and is unable to maintain himself or herself, liability
is of the person concerned to maintain with exception to the case of a
married daughter who has attained majority. But, in case of minor
children, no exception has been provided. In view of Section 8, when
“he” or “his” is used, it has to be read including in itself “she” or “her”.
If we look to Sub-section (3) as well, the Legislature has used the word,
“if any person so ordered” means where a person having sufficient means
be a father or mother neglects to maintain his or her children, legitimate
or illegitimate, minor or major, with exception to Clauses (c) and he has
been ordered to maintain them without any sufficient cause, fails to
comply with the order, the Magistrate has been given power to issue
warrant. When Legislature has not used the expression of “man” but used
“person”, it includes “male” or “female” and it cannot be read to be
referring to “man” only. The provisions of Section 125 are social welfare
legislation. The object of such a provision has been considered to be that
such persons who are not able to maintain themselves, they should not be
left to the agony of starvation, frustration or of destitution and in case of
female destitution, which may lead to prostitution. To avoid such a
situation, the Legislature has enacted this provision. A social welfare
legislation has to be interpreted keeping in view the object of the
provision. If a female person is earning and she has got minor children to
maintain and she refuses to maintain the minor children, be it be male or
female then definitely she is liable to maintain them as the Legislature
has not used the expression “man” or “woman”, but “person”, it has to be
taken that person includes both male or female, “his” may also be
interpreted as “her” in view of the above provisions of the General
Clauses Act as well as provision of he I.P.C referred to above. In sub-
section, the legislature has used the expression “any person”. So a
petition for maintenance under Section 125 is maintainable against again
the mother irrespective of the fact that mother belongs to feminine
gender. Here “person” includes both “male” and “female” and “his” is to
be read as “her” also. 1
1 S.K. Chandrika vs. Byamma, I (2000) DMC 185 Karnataka; → →

→See also Repalli Masthanamma v. Thota Sriramuu., 1982
Madras LJR (Cri) 313 (AP)
Minor children
The obligation of father or mother of unmarried daughter or
minor son to maintain them is not joint but several. If they are not
maintained adequately by either of them, they can certainly make good
the deficit by seeking maintenance from the other. The question of
double maintenance does not arise in such a situation. Further if the
minors sue either of the parents for maintenance it is open to either of
them to contend that they cannot sue him or her seeking maintenance
since they were maintained by the other till then. That is so because, the
liability of each of the parents to maintain their unmarried daughters or
minor sons is not joint but several. 1
Mother
If the sons effect a partition between themselves, the mother is
entitled at the time of partition to a share equal to the share of a son
which she receives in lieu of maintenance. The joint family in the instant
case has been severed by the filing of the suit. The applicant is entitled
to her share in lieu of the maintenance which she is otherwise
entitled to. 2
Right of maintenance against the property does not entitle a share
to the wife/mother in the joint family property in lieu of maintenance.
The fact that she had, as on 15.2.1970, a right to maintenance against
this property which later crystallised into the allotment of this property
in her favour on 24.9.1970 is not sufficient. Neither under the customary
Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu
Succession Act, 1956 nor under the Hindu Adoptions & Maintenance
Act, 1956 is there any provision which gives a share to a wife in the joint
family property held by her husband nor to a mother in the joint family
property allotted to her son in a partition. 3
Bearing in mind the general social purpose of Section 125
Cr.P.C., it was reasonable to construe the different word used in it as per
their natural meaning and there existed no justification for construing
them in any special sense in which they were understood under any
particular personal law. The natural meaning of the word ‘mother’ as
contained in any standard dictionary was a female parent i.e. a woman
who has given birth to a child. But, then, it was significant that the
1 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka; relying

upon Kaniki Subraya Gowda’s case 1964 Mysore LJ Supp 375
2 Parbati Devi (Mt.) vs. Bansi Dhar, AIR 1943 All 360.
3 A.G. Vardarajulu vs. State of Tamil Nadu, 1998(4) SCC 231: AIR
1998 SC 1388: 1998 (2) Scale 441.
Persons entitled to maintenance—Non working husband 229
words ‘father’ and ‘mother’ have been used in the same context in the
particular part of the Section. In the case of the word ‘father’, there
being nothing repugnant in the ‘subject’ or ‘context’, there was no
reason to think that the word did not have the same meaning as it had as
per its definition contained in Clauses (20) of Section 3 of the General
Clauses Act. As per its definition in the said Clauses, ‘father in case of
anyone whose personal law permits adoptions shall include an adoptive
father’. It was true that there was no similar definition of the word
‘mother’ contained in the General Clauses Act. But, then, again, there
was no reason to think that the word ‘mother’ as used in the particular
part of the Section did not have as wide a meaning as the word ‘father’
used in the said part of the Section had. There was no reason to think
that when an ‘adoptive father’ is entitled to claim maintenance from his
‘adoptive son’ under the provision an ‘adoptive mother’ should not be
similarly entitled to do so. However, the case of a ‘step mother’ was
altogether different. As already mentioned above, as per its natural
meaning, the word ‘mother’ meant a female parent i.e. a woman who has
given birth to a child. As per the said meaning it did not include a ‘step
mother’. 1 Again, as in the particular context the word ‘mother’ received
colour from the word ‘father’, its natural meaning got extended so as to
include an adoptive mother’. But, then, there was nothing in the
particular context which could provide a reason for extending the
abovesaid extended meaning of the word ‘mother’ any further so as to
include a ‘step mother’ also within its compass. 2
When Section 125, Cr.P.C. provided that a ‘mother’ unable to
maintain herself was entitled to claim maintenance under the said
section it meant that a ‘natural’ ‘mother’ i.e. the woman who had
given birth to the child and an ‘adoptive mother’ i.e. the woman who
had taken the child in adoption were alone entitled to make such a
claim against the ‘natural son’ and the ‘adopted son’ respectively. A
‘step mother’ was not entitled to make any such claim against her
‘step son’ under the said Section. 3
Non working husband

It is true that Section 24 of the Hindu Marriage Act, 1955 entitles
either party to move an application for maintenance provided such party
has no means of subsistence and the other party is in a position to
provide maintenance. But it does not mean that the husband who is
1 Ramabai vs. Dinesh, 1976 Mah LJ 565

2 Rewalal vs. Kamla, II (1986) DMC 53 MP.
3 Rewalal vs. Kamla ibid affirmed in Kirtikant D. Vadodaria vs. State
of Gujarat, 1996 (4) SCC 479
otherwise capable of earning his living should stop earning the living and
start depending on earning of his wife. 1
In One case if was found that the husband had incapacitated
himself by stopping the running the auto-rickshaw on hire. It was
observed that it was a well-established maxim of Anglo-Saxon
jurisprudence that no person can be allowed to incapacitate himself. The
maxim is applicable to the case of earning husband. A person who
voluntarily incapacitates himself from earning is not entitled to claim
maintenance from the other spouse. 2
Parents of married daughter

There can be no doubt that it is the moral obligation of a son or a
daughter to maintain his or her parents. It is not desirable that even
though a son or a daughter has sufficient means, his or her parents would
starve. Apart from any law, the Indian Society casts a duty on the
children of a person to maintain their parents if they are not in a position
to maintain themselves. It is also their duty to look after their parents
when they become old and infirm. It is true that Clause (d) has used the
expression “his father or mother” but the use of the word ‘his’ does not
exclude the parents claiming maintenance from their daughter. Section
2(y), Cr.P.C. provides that words and expressions used herein and not
defined but defined in the Indian Penal Code have the meanings
respectively assigned to them in that Code. Section 8 of the Indian Penal
Code lays down that the pronoun ‘he’ and its derivatives are used for any
person whether male or female. Thus, in view of Section 8, IPC read
with Section 2(y), Cr.P.C. the pronoun ‘his’ in Clause (d) of Section
125(1), Cr.P.C. also indicates a female. Section 13(1) of the General
Clauses Act lays down that in all Central Acts and Regulations, unless
there is anything repugnant in the subject or context, words importing
the masculine gender shall be taken to include females. Therefore, the
pronoun ‘his’ as used in Clause (d) of Section 125(1), Cr.P.C. includes
both a male and a female. In other words, the parents will be entitled to
claim maintenance against their daughter provided, however, the other
conditions as mentioned in the section are fulfilled. The father or mother,
unable to maintain himself or herself, can claim maintenance from their
son or daughter. The expression “his father or mother” is not confined
only to the father or mother of the son but also to the father or mother of
1 Govind Singh vs. Vidya, II (2000) DMC 693 Rajasthan.

2 Govind Singh vs. Vidya ibid
Persons entitled to maintenance—Right of Hindu widow 231
the daughter. In other words, the expression “his father or mother”

should also be construed as “her father or mother”. 1
Right of divorced wife

Section 125 Criminal Procedure Code is a salutary provision
intended to granting maintenance for wives, children and parents. For the
purpose of the provisions of this Chapter, it is explained that ‘wife’
includes a woman who been divorced by or has obtained a divorce from,
her husband and has not remarried. So under Section 125 Criminal
Procedure Code a divorced wife also can maintain an application. Under
Section 125(4) it is stated that “no wife shall be entitled to receive an
allowance from her husband under this Section if she is living in
adultery, of if, without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent”. 2
Section 125(4) itself has no application to a woman who has
already been divorced by her husband for the simple reason that a
divorced woman can never be said to be committing adultery even if she
has got promiscuous sexual relationship with other person. In Oxford
English Dictionary the word ‘adultery’ is defined as “violation of the
marriage bed. Voluntary sexual intercourse of a married person with one
of opposite sex, whether unmarried or married to another”. Violation of
marriage bed is not only the ordinary meaning of the word ‘adultery’ but
it is also the legal meaning of that word. The cardinal points for
consideration is whether woman has “defied her marriage” bed and if she
is no longer a wife there cannot be any defilement or disowning of her
marriage bed as she is a single woman then and has no marriage bed and
married home. So, the term ‘wife’ used under Section 125(4) Criminal
Procedure Code would only mean a woman whose marriage relationship
is in existence. A divorced woman will not come within the amplitude of
Section 125(4). 3
Right of Hindu widow

The coparceners of her deceased husband who have taken his
properties by survivorship, have no right to prescribe and arbitrary
standard as regards the comforts the widow is entitled to have or the
style in which she should live. It is not open to them to say that even
though they are getting a large income from family properties, as they
1 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987
CrLJ 977: AIR 1987 SC 1100: 1987 CAR 87: 1987 (2) SCC 278:
1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553.
2 Alavi vs. Safia, II (1992) DMC 311 Kerala.
3 Alavi vs. Safia, ibid.
are living frugally widow also must be content with the barest necessities
of life. The Shastraic Injunction that the widow’s life should be one
austerity and semi starvation is not a legal injunction and ought not to be
considered at all. 1
Hindu widow is not bound to reside with the same relatives of her
husband, the relatives of her husband have no right to compel her to live
with them and she does not forfeit her right to property or maintenance
merely on account of her going and residing with the family or
separately or leaving her husband’s residence from any other cause than
unchaste and improper purposes. Unless there is waiver or abandonment
of her right to maintenance by the widow she is entitled to maintenance
from the death of her husband. As rule, widow cannot claim arrears of
maintenance for the period her husband’s family unless she was kept
under circumstances of extreme penury and oppression. However, she is
entitled to arrears from the time, she change her residence, and under no
circumstances can the right be post-dated from the institution of suit for
maintenance. The amount of maintenance is liable to be increased with
the increase in the value of the estate or the cost of living or decreased
with the reduction in the value of the estate or its income due to cause
beyond the holder’s control. 2
Right of husband
The husband was mentally and physically well bodied person.
He had a skill of a particular business. There was no handicap for him
to earn bare minimum to support his livelihood. Merely because his
business is closed, it cannot be held that the he has no source to earn.
Since his wife was in the employment, the husband cannot make
himself wholly dependent on her income through a device of Section
24 of the Hindu Marriage Act, 1955. In absence of any handicap or
impediment to earn, to grant maintenance to such able bodied person
equipped with skill would promote idleness. It is opposed to spirit of
Right of illegitimate son

As per Mitakshara Law an illegitimate son is entitled to
maintenance as long as he lives in recognition of the status as a member
of family and by reason of his exclusion from inheritance among the
1 R.B. Gurubasvaiah vs. M.G. Preme, II (1992) DMC 191 Kar.

2 R.B. Gurubasvaiah vs. M.G. Preme, ibid.
3 Kanchan vs. Kamalendra, I (1992) DMC 619 Bombay.
Persons entitled to maintenance—Statutory right 233
regenerate classes. 1 But irrespective of validity of marriage an

illegitimate minor child is entitled to maintenance. 2
Right of unmarried daughter

Under the Hindu Adoption & Maintenance Act, 1956 it is the
obligation of a parent to maintain his unmarried daughter if she is unable
to maintain herself. Where the wife has no income of her own, it was the
obligation of the husband to maintain her and her two unmarried
daughters one of whom is living with wife and one with him. Section 24
of the Hindu Marriage Act, 1955 no doubt talks of maintenance of wife
during the pendency of the proceedings but this section, it was held that,
cannot be read in isolation and cannot be given restricted meaning to
hold that it is the maintenance of the wife alone and no one else. Since
wife is maintaining the eldest unmarried daughter, her right to claim
maintenance would include her own maintenance and that of her
daughter. This fact has to be kept in view while fixing the maintenance
pendente lite for the wife. 3
Siblings
The father or mother unable to maintain himself or herself can
claim maintenance from the son or daughter, as the case may be. None of
the Clauses (a) to (b) of Sub-section (1) relate to claim by a brother or a
sister. Therefore, claim of maintenance by brothers and sister has no leg
to stand. 4
Statutory right
In order to constitute a joint family, it is not always necessary
that there should be two male coparceners. Even prior to the Hindu
Succession Act, 1956, in a joint family property a wife or other female
members were entitled to maintenance under the Hindu Women’s Right
to Property Act, 1937. This Act introduced an important change in law
relating to the rights of women succession, which came into force from
April 14, 1937. This Act gave at least a limited right to property to
certain classes of the women members of the joint family. This limited
1 Mothey Anja Ratna Raja Kumar vs. Koney Narayana Rao, AIR 1953
SC 433: 1952 SCJ 507
2 Sumitra Devi v. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
PatLJR 11: 1985(2) Rec Cr R 61.
3 Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC
3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
4 Saudamini Tripathy vs. Pramila Dibya, II (1995) DMC 492 Orissa.
right has been converted to a full right as per section 14 of the Hindu
Succession Act. 1
Unborn child
Application on behalf of an unborn child is not maintainable
because no refusal or neglect on the part of father to maintain such child
can be proved or proved or inferred. Moreover, due to natural or
unforeseen circumstances, the birth of a child alive cannot be taken for
granted. Thus, due to such like contingencies the filling of application on
behalf of the child still in the womb of the mother would introduce
vagueness in such like proceedings and such was not the intention of the
legislature in enacting this provision providing for speedy maintenance
allowance in order to save the wives, children or parents from becoming
destitute. It was further held that no doubt, it will result in hardship to
the minor child if the order of cancellation of his maintenance allowance
is upheld, yet all the same there is no option but to do so because the
application on his behalf was not maintainable till he was born, although
the mother had claimed maintenance allowance on behalf of the unborn
child in the original application. It was however held that the mother can
file a fresh application on behalf of the minor child. 2
Unmarried daughter
obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself. In one case, the wife had no income of her own, it
was held that it was the obligation of the husband to maintain her and her
two unmarried daughters one of whom is living with wife and one with
him. Section 24 of the Hindu Marriage Act, 1955 no doubt talks of
maintenance of wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since wife is maintaining the eldest unmarried daughter, her right
to claim maintenance would include her own maintenance and that of her
1 CIT vs. Arun Kumar Jhunjhunwalla and Sons, 1997(223) ITR 45

(Gau).
2 Pushpinder Kaur vs. Balbir Singh, II (1992) DMC 483 P&H.
3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
Persons entitled to maintenance—Widowed daughter-in-law 235
Widowed daughter
Maintenance by a man of his dependants is, with the Hindus, a
primary duty. They hold that he must be just, before he is generous, his
charity beginning at home; and that even sacrifice is mockery, if to the
injury of those whom he is bound to maintain. Nor of his duty in this
respect are his children the only objects, co-extensive as it is with the
family whatever be its composition, as consisting of other relations and
connections, including (it may be) illegitimate offspring. It extends
according to Manu and Yajnavalkya to the outcast, if not to the
adulterous wife; not to mention such as are excluded from the
inheritance, whether through their fault, or their misfortune; all being
entitled to be maintained with food and raiment. 1
A destitute widowed daughter has a right of maintenance against
her brothers after the death of her father when she could not get
sufficient provision from her deceased husband’s family for her
maintenance. The case law mostly relates to matters pertaining to the
rights of the daughter-in-law against her father-in-law and his estate.
The reason, still, for their reference is the unusual paucity of case-law
governing the rights of daughter against her father, brothers, etc. for
her maintenance. This scantiness of case law is more due to the
devotional character and spiritual belief of the Hindu population and
also due to the fact that the law-abiding nature of the Hindus have
precluded brothers from disputing the right of maintenance of their
widowed sister. More over, the analogy in the case-law with reference
to the daughter-in-law can be and in fact has been also extended to the
destitute widowed daughter. 2
Widowed daughter-in-law
The widowed daughter-in-law can claim maintenance from her
father-in-law only where she is unable to maintain herself out of her
property or our of estate of her husband, father, mother, son or daughter.
It is also provided that father-in-law shall be under no obligation to
maintain his daughter-in-law except in cases where there is some
ancestral or coparcenary property in his possession from which daughter-
in-law has not obtained any share. 3
In one case the father in law was in possession of co-parcenary
property in which daughter-in-law not obtained any share. Proviso (a) to
1 Kota Varaprasada Rao vs. Kota China Venkaiah, AIR 1992

AP 1 (DB).
2 Kota Varaprasada Rao vs. Kota China Venkaiah, ibid.
3 Jit Singh vs. Gurmeet Kaur, II (1999) DMC 671 P&H.
Section 19 of the Act came up for consideration before a Division Bench

of the Court 1 and it was ruled therein that expression ‘obtain
maintenance from her father or mother’ does not merely mean that the
widow is somehow managing to live with or is being maintained by her
father or mother. There must be a legal right in the widowed daughter to
demand maintenance from her father or mother or from their estate, as
the case may be, and she must in assertion of that right be able to obtain
maintenance. It is only when she can obtain maintenance in pursuance of
a lawful right that the operation of the proviso can be said to be
attracted. 2
Wife
The Hindu Law as well as the common law caste a duty on the
husband to maintain the wife. In India, long before 1955, when the
Hindu Marriage Act was brought into force, such a duty of the husband
was given statutory recognition in the Indian Divorce Act, the Parsi
Marriage and Divorce Act and the Special Marriage Act. 3
Section 18 of the Hindu Adoptions & Maintenance Act, 1956 puts
an obligation on the husband to maintain the wife during her life-time. In
a case as given out in Sub-section (2) of Section 18, the wife shall during
her life-time. In a case as given out in Sub-section (2) of Section 18, the
wife shall be entitled to live separately from her husband and can claim
the maintenance. So the first and primary duty and obligation to maintain
the wife is on husband. Section 20 of the Act carves out an exception and
it will apply only in case where the husband is not alive or otherwise he
is not capable of or not having the source of income to maintain his wife,
then the obligation to maintain the mother may fall on the shoulder of the
son. Section 20 of the Act makes a provision for maintenance of children
and aged parents.
In this case the Trial Court mechanically read this provision and
was influenced by the fact that the mother is aged and the son who is
earning member has an obligation or pious duty to maintain her. Sub-
section (3) of Section 20 of the Act, 1956 was not taken into
consideration and looked into. Sub-section (3) of Section 20 of the Act,
1957 puts obligation on son to maintain his aged or infirm parents where
the parents are unable to maintain himself or herself or have not their
own source or properties. When it was not in dispute that the husband is
1 in Jai Kaur vs. Pala Singh, AIR 1961 Punjab 391

2 Jai Kaur vs. Pala Singh, AIR 1961 Punjab 391 as relied in Jit
Singh vs. Gurmeet Kaur, II (1999) DMC 671 P&H.
Persons entitled to maintenance—Wife 237
able to maintain his wife, it was held that section 18 and 20 of the Act,
1956 are to be read together and if are read so, Section 20 will come into
picture or can be put into service or applied only where the husband i.e.,
the father is unable to maintain his wife. Though these are socio-
economic provisions and same are to be read to extend the benefits to the
beneficiaries as provided, but where the husband is an earning member
having sufficient means to maintain his wife the liability to maintain the
mother under Section 20 of the Act cannot be fasten on son. 1
The Hindu Law recognised that the right of maintenance is a
substantive and continuing right and the quantum and maintenance is
variable from time to time. 2
The amount of maintenance, whether it is fixed by a decree or

agreement is liable to be increased or diminished whenever there is a
change of circumstances as would justify a change in the rate…..It may
be asked why it is that the rate of maintenance, though fixed by
agreement may be varied by the Court in a suit brought for that purpose.
The answer is that the right to maintenance does not rest on contract, but
on the provisions of the Hindu Law which expressly govern the rights
and duties of different members of the Hindu family. 3 In one case the
suit was filed by wife during life-time of husband and not as his widow.
Therefore it was held that on the death of the husband, her status as wife
and right to receive maintenance could not be affected for the purposes
of deciding this suit. 4
In a suit for maintenance the written statement was filed only by

one of the defendants-respondents which was later on adopted by other
defendants. In this written statement there was no pleading that they had
no notice of the right of maintenance of the plaintiff. In the absence of
such a pleading it was held that the Court below, on the basis of the
evidence on record, rightly held that the defendants had notice of the
right of the plaintiff to receive maintenance from her husband. In the
facts and circumstances of the case, the transfer can only be treated as
gratuitous when the evidence of passing consideration is not of any
1 Merubhai Mandanbhai odedara vs. Raniben Merubhai Odedara, I

3 Mulla Hindu Law Thirteenth Edition Para 568.
4 Hari Lal vs. Balvantia, AIR 1998 All 211: 1998 (2) CCC 277
All (DB).
definite nature. Thus, the suit of the plaintiff was rightly been decreed
for maintenance. 1
Wife from void marriage

It is no doubt true that Maintenance Act is a piece of beneficial
legislation conferring additional rights on women and children. But, it
cannot be construed as conferring maintenance rights on a woman whose
marriage is void under Hindu Marriage Act. While a legislative
enactment may be liberally construed, the liberality cannot over-step the
legislative limits of interpretation, putting to the legislation something
which is not there. If it is felt that a particular enactment causes hardship
or inconvenience, it is for the Legislature to redress it, but, it is not open
to the Court to ignore the legislative injunction. By codifying the
personal laws prevailing and application to Hindus, the Parliament
intended to have monogamy among the Hindus and therefore, Hindu
Marriage Act was passed to prevent Bigamous marriage and for that
purpose, it is enacted that a Bigamous marriage is void and also
constituted such a marriage as crime for which punishment has been
provided. Therefore, it does not appear to be the intention of the
Parliament that while such a Bigamous marriage is rendered void, the
Bigamous relationship should be recognised for purpose of maintenance. 2
A Hindu is under an obligation to maintain his wife, his minor
sons, unmarried daughters and aged parents. The obligation is personal.
It arises from the very nature of the relationship and exists whether he
possesses any property or not. The Maintenance Act gives statutory
form to that obligation. The right of a Hindu wife for maintenance is an
incident of the status of matrimony. Sub-section (1) of Section 18 of
the Act substantially reiterates that right and lays down the general rule
that a Hindu wife whether married either before or after the
commencement of the Act is entitled to be maintained by her husband
during her life-time. 3
The rule laid down in this section is subject to the exceptions
stated in Sub-section (3) which lays down that she cannot claim separate
residence and maintenance if she is unchaste or ceases to be Hindu by
conversion to another religion. Under Sub-section (2) of Section 18, wife
is entitled to live separately from her husband without forfeiting her
claim for maintenance, in the circumstances stated in Clauses (a) to (g)
1 Hari Lal vs. Balvantia ibid

2 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266:
1999(1) HLR 68 AP.
3 Abbayolla M. Subba Reddy vs. Padmamma, ibid.
Persons entitled to maintenance—Wife from void marriage 239
mentioned in that sub-section. Under Clause (d), wife is entitled for

separate residence without forfeiting her claim for maintenance if her
husband has any other wife living. The claim for maintenance is
maintainable under this section irrespective of the fact that the marriage
had taken place after or before the marriage of the applicant-wife,
provided the other wife is living. The ground laid down in this section
can, obviously, exist only in case of any marriage solemnised before the
Hindu Marriage Act came into operation. It is obviously for the reason
that the Hindu Marriage Act, 1955 laid down monogamy as a rule of law
and Hindu husband cannot marry another wife after the commencement
of that Act. A Bigamous marriage contracted after the coming into force
of that Act, would be null and void and no question of having another
wife can arise. Therefore, the word “Hindu wife” in Section 18(1)
connotes only a legally wedded wife of a Hindu and such wife alone is
entitled to claim maintenance from her husband under this section. If her
marriage is void ab initio, she is not entitled to claim maintenance under
this section. “Hindu wife” in this section only means a wife whose
marriage is valid under the provisions of the Hindu Marriage Act, 1955.
The wife whose marriage has been solemnised, but is void on the ground
that the first wife of the husband is living at the time of marriage, is not
entitled to claim maintenance under this provision. 1
1 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP:

1999(1) HLR 68 AP.
Chapter 7
Determination of income
SYNOPSIS
Introduction....................................240 Necessity of evidence ..................... 252
Absence of evidence .......................241 Necessity of finding about income . 253
Adverse inference ...........................241 Necessity of income ....................... 253
Appreciation of evidence................242 Non working husband .................... 254
Carry home salary .........................243 Ownership of land ......................... 254
Considerations ...............................243 Potential income ............................ 254
Cross Examination .........................245 Power under Hindu Adoptions &
Deductions from income ................245 Maintenance Act ............................ 255
Deduction for maintenance for parents Power under Section 151 Civil
.......................................................247 Procedure Code ............................. 257
Determination of income................247 Presumption of income .................. 258
Determination of resources............248 Prima facie case ............................ 259
Fixed assets ....................................248 Proof of employment ..................... 259
Income of wife ................................248 Renunciation of world ................... 259
Income from immovable property ..249 Step son.......................................... 260
Income of second wife ....................249 Suppression of income ................... 261
Income tax return ...........................250 Uncorroborated testimony of wife . 263
Joint family.....................................250 Unnatural conduct ......................... 263
Labourer ........................................252 Unskilled Labourer........................ 264
Medical Officer ..............................252 Vague denial .................................. 264
Introduction
While claim of maintenance is based on requirement of claimant
the quantum of maintenance depends upon various factors. The Income
of the person being saddled with the liability of maintenance is the single
most important factor because it is not the object of the law providing for
maintenance to create new class of paupers while taking care of the
earlier. Therefore the amount of maintenance has to be fixed in
proportion to the income. This chapter deals with the principles of
determining the income.
Determination of income—Adverse inference 241
Absence of evidence
In one case there was no evidence on record about the income of
the husband. According to the wife, the husband was working as a
mechanic, but no attempt had been made to lead any evidence about the
earnings of the husband. It was held that even if it is assumed that the
husband is working only as a labourer he would at least earn Rs. 12/- per
day and taking 25 days in moths as working days, he would be able to
earn near about Rs. 300/- per month. Under these circumstances, the
quantum of maintenance awarded to the wife at the rate of Rs. 125/ p.m.
was held to be a bit on higher side as if the husband has to pay Rs. 125/-
per month to the wife and Rs. 75 per month to the child only Rs. 100/-
would be left for himself. That definitely would not be sufficient to
maintain himself. Under these circumstances, it was held to be proper to
reduce the quantum of maintenance to Rs. 100/- per month. 1
Adverse inference
In one case the husband examined himself as a witness before the
Court below but did not depose a single word about his income.
According Section 106 of the Indian Evidence Act the amount of income
of the petitioner is a fact which is within his special knowledge and when
he himself does not tell about his income, it means that he is hiding the
truth. The wife stated in her examination-in-chief in that the income of
the petitioner was Rs. 3,000/- per month. A suggestion was given to her
in the cross-examination that the petitioner was getting only Rs. 1,500/-
per month as his salary. The husband was a railway employee and the
best evidence could be the document from his department. It was held
that he has withheld such a documentary evidence which he could have
obtained from his department and produced before the Court. Therefore,
his plea that he has getting a salary of Rs. 1,500/- per month was not
accepted. Secondly, even if the income of Rs. 1,500/- is accepted, there
is no evidence as to how many people he had to feed. The Court had
granted a sum of Rs. 350/- to each of the children which was held to be
not excessive. 2
In another case apart from the income of the disclosed house
properties the admitted fact which also appeared from the evidence was
that the husband built a residential house after the decision was given by
the High Court in earlier appeal granting interim alimony to the wife. On
behalf of husband, it was however contended that this house was not
tenanted and is used for residential purpose and the husband acquired
1 Sairabanu Mudassar Sayyed vs. Mudassar Salar Sayyed, I (1991)

DMC 342 Bom.
2 Shamlal vs. Mansha Bai, 1999(1) HLR 571 Rajasthan.
this properly after incurring loan of heavy amount from Life Insurance
Corporation of India. In this background it was held as under:
‘Even if it is so, the appellant did not disclose this properly nor
any papers or documents in support of the statement now made
before us. The appellant has also not produced the income-tax
return relating to his income from his properties and assets at the
material time. It is, however, contended that income-tax papers
are no longer confidential documents and the respondent could
have caused those papers to be produced from the authorities
concerned. We think, in the facts and circumstances revealed in
this case, it is not for the respondent but for the appellant to
produce the relevant paper including the income-tax assessment
of relevant periods to show his income. The appellant has also
failed to produce as noticed by the trial Court, his Bank accounts
or books of accounts and other material documents relating to all
his properties and income thereof. So, from the conduct of the
appellant it would be perfectly legitimate to draw an adverse
inference against him for his failure to produce the above papers
from his custody.’ 1
Appreciation of evidence
The affidavit of the wife stated that the income of the husband
during the year was Rs. 30,000/- out of which Rs.15,000/- was his share
of profits from the partnership business, while 15,000/- was the income
from the other business. It has also been stated on behalf of the wife
that there are houses and shops belonging to the husband, which were
fetching rental income but no details in respect thereof have been
supplied. In this case, however the court refused to rely on the
statement of the wife instead relied upon the Income Tax returns by
observing 2 as under:
‘The affidavit to the wife about the income of the husband being
Rs. 30,000/- per year cannot be accepted in view of the fact that
the husband has produced the income-tax authorities accepted the
income of the husband from the partnerships business and from
the other business as Rs. 9,134/- during the assessment year
1980-81. The husband filed an affidavit in the trial Court in
which he has admitted that his income was Rs. 9,000/- to 10,000/-
per year. The income-tax assessment order relating to the
assessment year 1980-81 has been produced, while we are
concerned with the subsequent assessment year 1980-81. It may
be considered that there might be slight increase in the income of
1 Jagdish vs. Manjula, AIR 1975 Calcutta 64 (DB).

2 Bhanwar Lal vs. Kamla Devi, II (1983) DMC 144 Raj: AIR 1986 Raj
229: 1983 Raj LW 314: 1983 Rajasthan LR 640: 1983 ELN 322:
1983 Mah LR 268: 1983 (2) Civ LJ 220.
Determination of income—Considerations 243
the husband during the next following year, but it cannot be

presumed in the absence of any cogent material that there was a
steep rise in the husband’s income in the next following year,
after the year for which income tax assessment order has been
produced. In the face of the affidavits of the parties and the
income-tax assessment order produced by the husband it appears
that the income of the husband could be fairly considered to be
about Rs. 12,000/- per year. We have held in similar cases that
1/5 th of the income of the husband should be considered as
reasonable for fixation of interim maintenance. As such the wife
is entitled to get 1/5 th of the sum of Rs. 12,000/- i.e. Rs. 2400/-
per year by way of interim maintenance. Thus, the interim
maintenance which the wife is entitled to get in the present case,
is determined as Rs. 200/- per month.’
Carry home salary

For determination of the amount of maintenance it should be
determined what is the carry home salary of the person concerned so that
a reasonable amount for payment may be determined. At the time of
determining the carry home salary the amounts of deduction or expenses
incurred by the opposite spouse which are optional may also be taken
into consideration. Further it must also be seem whether the optional
expenses or deductions were made as a result of the litigation between
the parties with a view to deprive the applicant under Section 24 of the
Act. The bona fides of the parties are taken into consideration. There
cannot be any hard and fast rule that the Provident Fund and life
insurance premium should not be taken into consideration while
determining the disposable income. The contribution to Provident Fund
may be optional or compulsory. Similarly if the amount of life insurance
premium was being paid prior to the disputes between the parties,
payment of premium should be taken into consideration and deducted
from the gross income to determine the disposable income unless some
male fides are alleged. 1
Considerations
In the case of Chameli vs. Gajraj Bahadur, 2 the Court held that in
fixing the maintenance under Section 488 the Court has to take into
consideration not only the needs of the applicant but also the paying
capacity and the circumstances of the person liable to pay maintenance.
1 Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982
Rajdhani LR 47.
2 1954 (55) CrLJ 19.
In another case 1 It was observed.—

“It was necessary for the learned Magistrate before determining
what maintenance should be allowed to have determined the
actual means of the husband of Parwatibai an allocate proper part
of it for maintenance. It is true that a person taking on the
responsibility of marriage has to maintain his wife and mere
minority or the fact that the husband does not work cannot come
in the way of the maintenance of the wife, but it is in all cases
necessary to ascertain the feasible means and the earning capacity
of the husband if he is compelled to work.”
In the case of Ashish v. D.C. Tewari, 2 it was held by Delhi High
Court that in awarding maintenance under Section 488 Criminal
Procedure Code all the circumstances of the case including the standard
of the person liable to maintain should be taken into consideration. It is
wrong to presume that unless the father can spare some money after
maintenance himself, his old mother and the brother, he has legal
obligation to maintain his own minor son, of course in accordance/with
status and standard.
In the case of Mohammad Ayyub v. Zaibul Nissa, 3 the Allahabad
High Court held that the quantum of allowance directed to be paid by the
husband to the wife has relevance to his means. Where the Magistrate
does not give any thought to the question as to what are the means
existing or potential of the husband justifying an order for payment of
allowance to his wife, the order is liable to be set aside.
Again in the case of Smt. Alimunissa vs. State of U.P., 4 the Court
emphasised the status and income of the husband as the criteria for
allowing maintenance to the wife.
These cases show the principles that maintenance allowable to the
wife must have relevance to the means of the husband; that under Section
125 Criminal Procedure Code the amount of maintenance allowable to
the wife should not exceed Rs. 500/-; that the Magistrate must discuss
the evidence and determine the means of the husband for fixing the
amount of maintenance; means not only mean the tangible property or
sources of income of the husband but also mean his capacity, potentiality
and status. 5
1 Prabhulal vs. Parwatibai, 1952 (53) Cr LJ 868.

2 1970 Cr LJ 670 Del.
3 1974 Cr LJ 1237 All
4 1987(24) All Cr Cases 304.
5 Chanderpal vs. Harpyari, II (1991) DMC 481 All.
Determination of income—Deductions from income 245
Cross Examination
For the grant of maintenance under Section 24 of the Hindu
Marriage Act, 1955, apart from other thing, the income of the husband is
one of the very material consideration. In one case, the wife had alleged
that the husband was running his own business and was earning
Rs. 40,000/- to Rs. 50,000/- per year whereas the husband had denied
these facts and had alleged that he was only serving with a private firm
earning Rs. 400/- p.m. Thus there was a big gap between the income of
the husband alleged by the wife and stated by the husband alleged by the
wife and stated by the husband and in the circumstances, in order to
arrive at a correct decision about the income of the husband, the cross-
examination of the husband on the affidavit filed by him, was held to be
necessary. The learned District Judge had declined to do so on the
ground that such a course should be discouraged in miscellaneous
petition and that the prayer for cross examination was not bonafide but
High Court did not find force in either of these two grounds. It was held
that when there was such a divergence, there was no ground for refusing
cross examination on the affidavit merely on the ground that such a
course should be discouraged. On the other hand, this court has been
allowing the cross examination of affidavits in proceeding under Section
24 of the Act as would be clear from Bhanwarlal vs. Smt. Kamal Devi. 1
The other ground that the application was not bonafide was also held to
be not acceptable because it did not appear that as a matter of fact, that
the wife was trying to prolong the proceedings. What she was trying to
do was to arrange for the expenses which were payable to her under
Section 24 of the Act in order to contest the application filed by the
husband for divorce against her and if with that intention, she made
applications from time to time, even before filing her reply, she cannot
be held guilty of any malafides. 2
Deductions from income

What has been taken in advance cannot be considered to be a
liability. After giving proper deductions for the mandatory and necessary
cuts in the salary it was held that the husband’s carry home salary would
be around Rs. 10,200/- per month. Taking into consideration the carry
home salary and the requirement of the wife who was living with her
parents and brothers and also taking into consideration that she had
nowhere stated that she would leave the custody and company of her
1 1981 R.L.W. 464.

2 Shobha vs. Dharmi Chand, I (1986) DMC 369 Raj.
parents and brother, it was held that if the maintenance amount is fixed
at Rs. 2,500/- per month, the same would meet the ends of justice. 1
The husband had produced his salary certificate which showed
that he was drawing of salary of Rs. 8,868/-, from which he was getting
deductions to the extent of Rs. 6,107/- towards various saving and return
of house building loan. The wife was also looking after a minor son and
a minor daughter in additional to maintaining herself in the high prices.
It was held that the husband could not take advantage of the heavy
deduction from his salary as almost all these deductions were voluntary
and were primarily on account of savings or house construction loan
taken by the husband. 2
In another case the gross salary of the husband was Rs. 7228 and
after deductions, the take-home salary was Rs. 4169. The relevant
document also suggested that the deduction against advance was to the
tune of Rs. 936 and odd while there was a further deduction to the extent
of Rs. 2000/- towards ad hoc salary recovery. The circumstances under
which this particular deduction of Rs. 2000 was made from the gross
salary due for the month in question had not been explained by the
husband. Going by the particulars appearing in the role, it seemed that
this deduction of Rs. 2000/- was meant only for that month perhaps
against some excess drawl of pay and allowance made earlier. The Trial
Court, however, did not consider this respect of the matter and relied on
the figure mentioned in the column meant for net amount as the real
income of the husband in determining the quantum of enhancement. It
was undisputed that the husband was also a licensed draughtsman
holding some engineering degree or certificate. According to the wife,
the husband’s income from the professional service that he renders
towards his clients on account of this engineering degree or certificate is
Rs. 7000 to 10,000. The husband, however, denied the fact that he had
such income. According to the wife, the husband has another income by
running tutorial home. However the husband was not required to
maintain anybody else. Regard being had to the status of the wife and her
needs as revealed from the materials on record and upon consideration of
all the facts and circumstances which are relevant for the purpose of
determining the income of the husband, especially the fact that there was
a deduction of Rs. 2000 from the gross salary of the husband for the
particular month was towards the ad hoc salary recovery. 3
1 Sanjay Kumar Jain vs. Maya Jain, II (2000) DMC 768 MP.
2 Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H.
3 Dibyendy Mukherjee vs. Sudipta Mukherjee, 1999(1) HLR 216
Calcutta.
Determination of income—Determination of income 247
It has been held that when there was no evidence to the effect that
opponent-husband was contributing anything towards provident fund,
even assuming for a moment that the husband was contributing an
amount of Rs. 80/- per month towards provided fund, then also this
amount cannot be deducted. 1
Deduction for maintenance for parents

Whether any maintenance is paid or not to the parents is
immaterial, but husband as a son is under an obligation to maintain them
if they are unable to maintain themselves. Considering the facts of the
case it was held that the trial court rightly determined the monthly
maintenance of Rs. 450 out of the disposable income of Rs. 1,537 of
the husband. 2
Determination of income
The husband was healthy person of 26 years of age, therefore, a
young and healthy person, who claimed in his statement that he was
earning with his parents in the field and was also tending the animals. It
clearly shows, that he had joint earning with his parents. He was putting
in his labour. In that sense, the wife has right to claim maintenance from
those earnings. What would be the extent of those earnings should have
been decided by trial Magistrate or at least by the Session Court. Some
fair estimate on day to day expenses of life, could be made. The Session
Court dealt with the matter in a non-serious manner by merely referring
to the fact that no specific amount of earning has been stated. The legal
position has to be that, a person who is capable of earning has to earn for
his dependents i.e. for his wife and child. The evidence of the wife and
her witnesses was that the husband works on land and tends milk animal
with his parents. This was admitted by the husband also. It was held that
‘the Trial Magistrate should have assessed, what would be considered as
fair earning out of labour put in by this respondent. In such type of case,
a wife can hardly be expected to produce specific evidence of earning of
husband not it can be said that the labour of the husband is producing no
earning. In fact, an able person is expected to work for his wife. The
respondent is, after all living, eating and clothing himself. … … … The
matter is remanded back to the trial Magistrate to reach a conclusion of
1 Sakinabibi Gulabbhai Chauhan vs. Hasamkhan Rahimkhan, II

(1985) DMC 489 Gujarat, See also Vinaben Jivanlal Suthar vs.
Yaswant Kumar Pannalal Suthar, II (1983) DMC 234 Gujarat.;
Saryuben vs. Bharat Kumar Mukundrai Vyas, II (1985) DMC 193
Gujarat.
2 Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982
Rajdhani LR 47.
the extent of the earnings of the husband, on the basis of the evidence
existing on this record and then to fix maintenance payable to the
petitioner-wife by the husband.’ 1
Determination of resources
Where a man or a woman is on supplementary benefit, then it
must be assumed that he is not working. That assumption cannot be made
in realistic terms in modern conditions. There are many persons who can
be shown to be working and earning money albeit they are on
supplementary benefit, and it is for the justice to make inquiry to see
whether that is the case or not. For those reasons, the appeal was allowed
to this limited extent and the matter remitted to the justices for further
inquiry in relation to the resources of husband. 2
Fixed assets
In one case the husband is not in possession of any of the
properties. No evidence whatsoever was adduced by the wife to show
that the husband in fact got any income either from his brother or his
other relatives who were in possession of those landed-properties. It was
held that it will be unfair to assume that the husband must have been
enjoying enough income from these landed properties, when the property
did not stand in his name nor there was any evidence to show that any
income was received by him from persons who were in possession of the
property. There was no evidence to show that there is any litigation
instituted against them by the husband to get income from the share of
the property. It was necessary for the wife to adduce evidence in the first
instance to show as to how much was the income that he was entitled to
receive from the property and further that he was in fact receiving such
income. There is a well recognized difference between the fact of receipt
of income and the right to receive the same. Merely proving that a person
has got the right to receive the income does not means that he is receipt
of the same. 3
Income of wife
Except making the allegations against the wife in regard to her
income etc. the petitioner had not placed any document or affidavit of
any other person to show that the wife was actually earning what had
been averred against her. It was held that even if it was so, the obligation
1 Shyamkali d/o Vidyathi Ram vs. Bhaiyalal @ Ganesh s/o Yamuna

Prasad, 1999(1) HLR 300 MP.
2 Burridge vs. Burridge, (1983) II DMC (BJ) 42.
3 Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC
26 Bombay.
Determination of income—Income of second wife 249
of the petitioner-husband to maintain his minor children would always be

there. It was further held that even for the sake of arguments it is
assumed that wife has some source of income, that per say would not
disentitle the wife from claiming maintenance for herself and more
particularly for her children from the marriage. Meagre income of the
wife cannot be treated as an absolute bar for claiming maintenance from
her husband. 1
Income from immovable property

The plea that the immovable property or the assets could not be
taken into account is misconceived in as much as in one case, the said
asset had been liquidated and the amount was available to the petitioner.
It was held that the finding and observations of the learned Additional
District that ‘having regard to the prevailing prices of property in Delhi,
the actual value of the property could have been much higher as against
the disclosed sale consideration of only Rs.1,90,000/-, for a DDA flat in
Rohini, cannot be faulted with. It was further held that in any case, upon
liquidation of the said asset, the sale proceeds of Rs.1,90,000/- or Rs.10
lacs as claimed by wife, were available and can safely be presumed to be
yielding returns in the absence of anything to the contrary. The sale of
the flat after receipt of notice of application for maintenance and alleged
payment of the sale consideration to petitioner’s father can be viewed as
a machination to avoid the liability for payment of maintenance.
Considering the attendant circumstances, viz. petitioner staying with his
parents in the same house, petitioner claiming to have paid Rs.1,75,000/-
to his father, the withdrawals from the firm for house expenses, it would
appear that the income is being pooled in for the benefit of the family.
The impugned order awarding Rs.1,500/- per month as maintenance in
such circumstances cannot be said to be unreasonable or vitiated with
material irregularity. 2
Income of second wife

The one third approach is always taken on the husband’s or ex-
husband’s gross earnings, without having regard in the calculation to the
new wife’s earnings, either gross or net. But of course of the new wife’s
earnings can be taken into account to this extent that he has a person, a
new wife, a woman, who is either keeping herself or contributing
1 Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H.

2 Pominder Kumar Chhabra vs. Asha Devi, 1997 (6) AD 846 Del:
1997 (43) DRJ 790: 1998(1) CCC 3 : 1997 (70) DLT 764.
towards her own keep. It is something to which one should have regard
in the overall picture. 1
Income tax return

Whether to accept or not to accept the income of a dependant as
given in income tax assessment order, for purposes of determining the
financial position of a dependant will also depend on facts and
circumstances of each case. On this aspect also no broad proposition or
hard and fast rule can be laid down. In one case income given in Income-
tax assessment order may be accepted and in another case, it may not be
accepted. No rigid formula about what percentage of income should be
fixed as maintenance can be laid down. In one case it may be 25% in
another it may be 50% or even less or more. The quantum of
maintenance depends upon the position and status of the parties
including financial position of the defendant as also on the reasonable
demands of the claimants or any other relevant factor. 2
In one case the court took into consideration the household
expenses for some earlier months, the maintenance charges of the flat
occupied by the wife and the tuition fees of the son. The learned Judge
therefore come to the conclusion that the income-tax returns filed by the
husband were not conclusive of the true income of the husband and his
income has to be assessed in the light of the said other consideration as
well. It was held that there was nothing wrong in this approach, and as is
common knowledge, income-tax returns do not reflect the true position
of the income of a party for several reasons, and cannot be taken as the
sole guide for determining it in proceedings. 3
Joint family
In one case the husband was working in a Primary School and
was earning Rs. 400/- per month by way of salary. However, it appeared
that his salary is not the only source of livelihood for the husband. It had
come on record that there was a family business of printing press, which
is run by the family. The husband failed to prove that he had separated
from his family or there was any partition effected. He was the only son
of his parents. Therefore, it was held that the income from the printing
press will have to be taken into account, though the husband is on his
1 Campbell vs. Campbell, 1 (1977) All ER 1: (1982) 2 DMC (BJ) 31.

2 Baby Rashmi Mehra vs. Sunil Mehra, AIR 1991 Del 44: 1989 (4)
DL 65: 1990 (40) DLT 152: 1990 (1) DMC 94: 1989 (2) ILR (Del)
304: 1989 RLR 449.
3 Vinod Dulerai Mehta vs. Kanak Vinod Mehta, AIR 1990 Bombay
120 (DB): (1989) 2 Bom CR 217: 1989 Mah LJ 600: 1989 Mah LR
1522.
Determination of income—Joint family 251
salary which he is getting from the Saraswati School. In fact, it has to be

stated that the main income is from the printing press and the salary of
Rs. 400/- per month, which the husband is getting, is an
additional income. 1
The husband left the wife and went and stayed with the parents in
the Tagore Garden House. He never cared for the wife and did not pay
any maintenance to her. He withheld the FDR and the savings bank pass-
book and falsely alleged that she had the income of her own. He had not
paid the maintenance amount as directed by the Court in spite of the fact
that the Court had permitted him to make the payments in instalments.
On his own he was contributing only Rs. 250/- as the mess charges to the
joint family and was not paying anything for his accommodation. It was
held that if the husband was claiming his joint family connection for
showing that the business and the properties did not belong to him, he
cannot deny that most of his expenses are borne by the joint family. His
child was about four years old. The child also required to join some
school. His school expenses, expenses on clothing, medicine, toys, etc.
for the children of this age are very large. It was held that the rising
prices and the high cost of maintenance would show that a sum of
Rs. 750/- is not even sufficient for bare maintenance and the wife and the
child are entitled to live according to the status of the husband. It was
further observed that ‘considering the past experience the respondent-
husband is warned that if the amount of maintenance of Rs. 1,500/- per
month is not paid punctually before 10 th day of each month, the Court
will be constrained to take strong action for compliance of its order.’ 2
It can not be laid down as a rule of law that if a person is working
with his father, he has no income. In that context, it may be a relevant
consideration that a person is an able bodied one and is capable of
working even as an ordinary labourer or otherwise. It cannot be argued
on behalf of the husband in such case that simply because he is working
with his father, he has no independent income and it is itself sufficient to
deprive his wife to claim maintenance under Section 24 of Hindu
Marriage Act, 1955. It is all the more so in the case when the Court has
1 Prashant Mallikarjun Mendhapoorkar vs. Sou. Pragati Prahsant

Mendhapoorkar, II (2000) DMC 696 Bombay.
2 Renu Jain vs. Mahavir Prasad Jain, AIR 1987 Delhi 43: (1986) 2
Hindu LR 148: 1987 Marri LJ 34: (1987) 2 Cur LJ (Civ & Cri) 386:
(1987) 92 Pun LR (D) 1.
come to the conclusion that there is nothing on the file to hold that the
husband has got no independent source of income. 1
Labourer
The allegations made by the wife in her application under Section
24 of the Hindu Marriage Act, 1955 went unrebutted. Taking the facts
stated in the application under Section 24 of the Hindu Marriage Act,
1955 to be correct, it was found that husband was a man of substantial
means. Trial Court has erred in taking his monthly income to be
Rs. 1,000 only. Statutorily minimum wages payable to a labourer in
Punjab have been fixed at more than Rs. 800. under the circumstances,
Trial Court erred in fixing the income of the husband-respondent at
Rs. 1,000 per month. 2
Medical Officer
Any medical practitioner around the age of 37 and actually
having private practice, must be in receipt of income from that source
also. That such income would be substantial, (even when he is on leave;
during the leave period he can devote more time for private practice) is a
fair inference in the circumstances. It may also be noted that even in the
main petition, he had expressed his willingness to put the two children in
a boarding house. This was also taken as indicative of the financial
capacity of the husband even on his own showing. It was held that he
cannot grudge a payment direct to the wife, when he was prepared to pay
a boarding house, for their stay and other expenses. Regard being had to
the fact that the husband was in the medical profession and was having
private practice and was in receipt of income from immovable property,
which thus remain uncontradicted, it will be safe and reasonable to come
to the conclusion that he in receipt of a sufficiently high income. It was
therefore held that the capacity of the husband to maintain the wife and
children cannot be disputed. 3
Necessity of evidence
Mere fact that the wife has not been able to lead any evidence
with regard to the means of her husband, could furnish no justification
for the Session court to remand the case. The Session Court ought to
1 Gurmail Singh vs. Bhuchari, AIR 1980 P&H 120 (DB): 1980 Rev LR
171: 1980 Marriage LJ 367: 1980 Cur LJ (Civil) 193.
2 Surita Singh vs. Mahabir Singh, II (1991) DMC 409 P&H.
3 Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
Determination of income—Necessity of income 253
have decided the case on the basis of the evidence led and already
on record. 1
Necessity of finding about income

Where the family Court, having taken into consideration the facts
and evidence, fixed the quantum of monthly maintenance after being
satisfied about the source of income of the husband, it was held that the
order of maintenance is not liable to be set aside only because of non-
recording a specific finding about the monthly annual income of the
petitioner. However, it was observed that justice must only be done, but
it should appear to have been done. In that sense it was observed that if
the Trial Court would have recorded a specific finding regarding the
quantum of income, then the impugned order of maintenance would have
been a better speaking order, conveying the manner in which the Court
has satisfied the sufficiency of means with the petitioner and the reason
why the impugned quantum of maintenance was granted in favour of the
opposite party members. But for want of this there is nothing to interfere
with the impugned judgment by exercising revisional jurisdiction. 2
Necessity of income
Under law, the burden initially lies in the first place upon the
wife to show that the means of the husband are sufficient. But, if the
initial onus is discharged, the husband is not relieved of the obligation to
maintain his wife on the ground that the wife is having means to support
herself by her own labour or that the wife is having able and willing
relatives to maintain her. Merely because she refuses to earn does not
mean that she is not entitled to maintenance. So far as the wife is
concerned, her potential earning to capacity is not a relevant
consideration. The word ‘means’ in the section does not signify only
means such as real property or definite employment. It a man is healthy
and able bodied, he must be considered to have the means to support his
wife and he cannot be relieved of the obligation on the ground that he is
unemployed. The words “sufficient means” includes the capacity to earn
money and if a man is capable of earning money, he has to earn the
means to maintain his wife, child or parents. The possession of property
is not at all a criterion for awarding maintenance. It is independent of
possession of property. It a person is capable of doing labour, the fact
that he is not earning anything is not at all the criterion for not
awarding maintenance. 3
1 Bharat vs. Suhana bai, I (1991) DMC 289 MP.

2 Ramesh CH. Ojha vs. Rangalata Ojha, I (2000) DMC 588 Orissa.
3 T. Buvaneshwari vs. V. Ramakrishnan, I (1989) DMC 269 Madras.
Non working husband

In one case the wife was not ready to live with her husband as he
was not doing any service and was having no independent income. The
court below held that the opposite party husband has no independent
source of income and is still prosecuting his study and is dependent on
his father. The High Court however observed that it is true that even the
husband has no independent source of income or earning, but is capable
of earning being an able-bodied person fit enough to work is liable to
maintain his wife and cannot deny payment of maintenance pendente lite.
It was also observed that the opposite party husband was prosecuting his
study, the marriage was solemnized, but the petitioner refused to live in
the matrimonial house on the ground that the opposite party husband is
not doing any service. It is also evidence that the opposite party
repeatedly requested the petitioner to live with him in his parents house,
but she refused to do so. Ultimately, the opposite party instituted the suit
for restitution of conjugal right and the suit was decreed, but even then
the petitioner did not resume conjugal right. Therefore in these
circumstances the order denying the maintenance, was affirmed. 1
Ownership of land
A poultry farm was being run in the land of the husband himself
and, therefore, he cannot simply withdraw from the partnership unless it
was discontinued. Secondly the husband was owning land which would
show that the husband was having sufficient income from other sources
to be able to purchase the said land. The possible sources of other
income were not at all consider or even touched in the judgment of the
Session Court. The Sessions Court has simply considered the source of
income from the salary which the husband was getting. In that view of it
was held that the learned Additional Session Judge was justified in
reducing the amount of maintenance granted by the Trial Court from
Rs. 500/- to Rs. 400/- per month. 2
Potential income
In Mohammed Ayub vs. Jaibul Nissa, 3 the learned Judge of the
Allahabad High Court has observed as followed:—
“It may be mentioned here that is assessing the means of a
husband the court is not confined to taking into account his actual
earning for the time being. There may be cases where an able
1 Sadhana Devi vs. Bijendra Kumar, 1998(4) CCC 319 (Patna).

2 Drakshayanu Balkrishna Patil vs. Balrishna Virupakasha Patil, I
(2001) DMC 430 Bombay.
3 1974 Crl LJ 1237.
Determination of income—Power under Hindu A & M Act 255
bodied and qualified person may not earn anything merely

because he is either too lazy to put to use his resources or because
he has indulgent relations to provide for his requirements. In such
cases, the court must also take into account the potential earning
capacity of the husband.
In Kandasami Moopan vs. Anjammal, 1 Ramaswami, J., has
observed as follows:—
“So long as a man is able bodied and can work and can work and
earn his livelihood, if it his duty to support his wife. Therefore,
our courts have gone to the extent of laying down that
notwithstanding the fact that a husband may be an insolvent or a
professional beggar or a minor or is a sadhu or a monk, he must
support his wife so long as he is able bodied and can eke out his
livelihood and support his wife.
These observation made with reference to the wife would apply
with greater force to minor children unable to maintain themselves.
Husband cannot contend that he is unfit to take up any employment. His
potential capacity to earn has to be taken as the basis. 2
Power under Hindu A & M Act

Section 18 of Hindu Adoptions & Maintenance Act, does not
authorize the award of interim maintenance pending decision on the
claim to maintenance in contest in the suit. The right of the wife to be
maintained by the husband should not be confused with the power of the
court to award interim maintenance pending an action for maintenance
where such right is in dispute. The court has no power unless statute
expressly confers such a power on it. For example a power to award
maintenance pendente lite is expressly conferred by Section 24 of the
Hindu Marriage Act. The Hindu Adoptions & Maintenance Act does not
contain a similar provision. 3
Thus there is no separate provision in the Hindu Adoptions and
Maintenance Act, 1956, for grant of maintenance pendente lite. Section
18 of the Act only provides for maintenance to a Hindu wife, subject
however to the two exceptions, carved out in sub-section (3) of section
18 of the Act, which extinguish the right of a Hindu wife to a separate
residence and maintenance.
That being the position in law, when it is imperative for the
husband to maintain his wife, it does not stand to any reason that during
1 1960 MLJ Crl 839.

2 Jagannathan vs. Sundari, II (1987) DMC 168 Madras.
3 Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971)
2 Andh Pra LJ 330: (1972) 1 Andh WR 195.
the pendency of the suit for grant of maintenance, which may take
decades to attain finality, the wife in the first instance be forced to face
starvation and then subsequently is granted maintenance from the date of
the filing of the suit, if she is fortunate enough to survive till then. I feel
that such a view will be against the very intent and spirit of section 18 of
the Act. Even though there is no specific provision in the Act for grant of
maintenance pendente lite, the Court is amply empowered to make such
orders as may be necessary in the ends of justice. It is a trite proposition
of law that a court empowered to grant a substantive relief is competent
to award it on interim basis as well, even though there is no express
provision in the Statute to grant it. Power to grant interim maintenance is
incidental and ancillary to the substantive relief of maintenance
envisaged in section 18 of the Act and if the ends of justice so warrant
the court is competent to grant it in a suit for maintenance. 1
In the case of Rama Chandra Behera vs. Smt. Snehalata Dei, 2 a
Bench of Orissa High Court held:
“We agree that there may be cases where taking the extra
ordinary aspects into consideration, the Court may proceed to
exercise inherent powers to grant interim relief. It is not
appropriate to set limitation on count’s inherent powers by
interim relief. It is not appropriate to set limitations on court’s
inherent power by indicating circumstances where it can be and
where it cannot be exercised”
The power to make an interim order for maintenance pending an
application under Section 18 of the Act is implicit in the section. Such a relief
must be held to be ancillary and the power would be necessary corollary to
the power of the Court to entertain the application for substantive relief.
There have been a series of decision of this Court taking the aforesaid view
which was held to be in consonance with the spirit of the law.3
The absence of a specific provision in the Hindu Adoptions &
Maintenance Act, 1956, is immaterial and that the civil Court has
jurisdiction to grant interim maintenance. 4
However in a case involving Muslim Law it has been held that
the nature of the suit for restitution of conjugal rights is different from
1 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993 (3)
AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR 69
(N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR 577.
3 Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114
Orissa.
4 Deivasigamani Udayar vs. Rajarani Ammal, AIR 1973 Madras 369:
(1973) 1 Mad LJ 383: 86 Mad LW 209.
Determination of income—Power under Section 151 Civil Procedure Code257
the suit for maintenance which a Mohammedan is entitled to file under

the Mohammedan Law. There is also remedy to the wife to claim
In another case the petitioner had asked for permanent alimony
under Section 37 of the Act and in case she succeeded in getting the
order of judicial separation under Sections 22 and 23 of the Act in her
favour and against the respondent, she would be entitled to the grant of
permanent alimony. It was held that therefore, there should be left some
security in the form of immoveable properties or otherwise which should
be sufficient and adequate enough for the grant of permanent alimony
under section 37 of the Act and that the house of husband can be
adequate security for the payment of permanent alimony to the petitioner
in case it is granted by the Court because every Court has inherent power
to grant relief during the pendency of the proceedings if the interest of
justice so requires. 2
Power under Section 151 Civil Procedure Code

The inherent powers recognised by the Section 151 cannot extend
to matters other than procedural. The Court cannot resort to the
provisions of Section 151 to encroach upon substantive rights of parties
or, in an Interlocutory Application, upon matters which await
adjudication in the suit. No order under Section 151, Civil Procedure
Code can be made except ‘in aid of the suit.’ Such an order may be a step
towards obtaining a final adjudication in the suit or it may be with a
view to ‘rendering the judgement effective, if obtained’ 3
The award of interim maintenance pending decision of suit in
which the right to maintenance is in contest cannot certainly be called a
procedural matter. An order awarding interim maintenance can neither be
said to be a step towards final judgment nor intended to render such
judgment effective. It can not be said to be “in aid of the suit” at all.
Such an order cannot be made under Section 151, Civil Procedure Code.
It can no more be made in exercise of the inherent powers under Section
151, Civil Procedure Code than a defendant can be directed to pay
straightway to the plaintiff in a suit for money the amount admitted by

2 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC
185 Del.
him to be due to the plaintiff or which the Court may prima facie find the
plaintiff to be entitled, or a defendant can be directed to deliver
straightway to the plaintiff in a suit for possession of several properties,
the items admitted by him to belong to the plaintiff or which the court
may find him to be prima facie entitled. In cases where the defendant
admits part of the claim of the claim of the plaintiff, the latter may ask
the court to pronounce judgement and pass a decree to the extent of the
admitted claim while postponing adjudication in regard to the rest of
the claim. 1
Presumption of income
A person having his own independent business, belonging to an
affluent business family, which resides at a prima locality in Bombay,
maintain a car and has other luxuries of life, can hardly be heard to say
that he is in no position to meet the order of maintenance of Rs. 4,000/-
per month for his minor child and Rs. 2,000/- per month for his
estranged spouse. If at all there was any truth in this contention, he
should have availed of the opportunity given to him by producing his
books of account, so that the veracity of this defence could have been
tested. Therefore it was held that prima facie, at least at this juncture,
financial stringency was a bogey being put forward only to bolster the
contumacious conduct and stand adopted by the husband. 2
If a person is an able-bodied person capable of working, then, he
is supposed to maintain his wife and to pay the maintenance as required
under Section 24 of Hindu Marriage Act, 1955. It is for the purposes of
fixing the amount under Section 24 that the applicant’s own income and
that of the respondent is to be taken into consideration. In the absence of
any income as such of either party, the husband being an able-bodied
person and capable of maintaining his wife is liable to pay the interim
maintenance under Section 24 of the Act. 3
When there is no evidence that the petitioner is not capable of
earning more, if an able-bodied man capable of earning more without any
lawful excuse does not earn enough as in expected of him, it is not a

2 Vinodchandra Gajanan Deokar vs. Anupama Vinodchandra, AIR
1993 Bombay 232: 1992 (3) Bom CR 129: 1993 (2) Civ LJ 608:
1993 (1) Cur CC 166: 1993 (1) Hindu LR 67.
3 Urmila Devi vs. Hari Parkash Bansal, AIR 1988 P&H 84: (1987) 91
Pun LR 553: (1987) 6 Reports 217: (1987) 1 Hindu LR 458: (1987)
2 Cur LJ (C & Cri) 221: (1987) 2 Cur CC 803: ILR (1987) 2
P&H 495.
Determination of income—Renunciation of world 259
ground for reduction of the quantum of maintenance payable to the wife.

However it was also observed that in these days, a sum of Rs. 75/- per
month is grossly inadequate as a maintenance amount for any standard
of living. 1
Prima facie case

In one case the husband did not dispute that the opposite party
was his wife. It was held that once this fact stands admitted, then under
sub-section (1) of Section 18 of Hindu Adoptions & Maintenance Act,
1956, itself she became entitled to be maintained by her husband during
her lifetime”. Sub-section (2) however gives further right to a wife to
live separately from her husband without forfeiting her claim to
maintenance on any of the grounds enumerated therein. One of them
being where the husband keeps a concubine, as alleged by the plaintiffs
in the present case. The scheme of Section 18, therefore, confers a
general right on the wife to claim maintenance. This right continues and
is enforceable even during the pendency of the suit as she has got to be
maintained by the husband even during the pendency of the suit and in
that view of the matter the court not only can pass an order for interim
maintenance but, should pass such an order where the relationship of
husband and wife between the parties is undisputed, as that by itself
established a prima facie case for grant of interim maintenance. 2
Proof of employment
The applicant, in one case, stated that her husband had previously
taken training and that he was now working an Engineer and, hence, she
was entitled to Rs. 500/- per month as maintenance allowance from her
husband. It was held that it cannot be imagined that an Engineer would
be without any employment and would even then going for the second
marriage, if he was unemployed. It appears that the stand taken by
husband that he was unemployed was only taken to avoid his liability to
pay maintenance allowance to his first wife who was living with her
father and brother. On taking a conspicuous view it was held that the
order granting maintenance is not illegal. 3
Renunciation of world
In one case the contention was that the husband had renounced
the world and he become a Sadhu and therefore, he was not liable to pay
1 Lalit Amonatya vs. Dimabati Amonatya, I (1990) DMC 100 Orissa.

2 Bailiram Ram vs. Radhika Devi, AIR 1980 Patna 67: 1979 BBCJ
(HC) 510: 1979 BLJR 583: 1979 BLJ 546: 1980 Mat LR 161.
3 Shiv Narain vs. Dasodiya, II (1994) DMC 554.
any maintenance to his wife. The wife had stated that her husband
sometimes puts on the traditional dress of Sadhus and sometime he is
dressed in Dhoti-Kurta. In the same paragraph the wife had stated that
her husband is having illicit relations with several woman and spends
Rs. 1000/- on those women. She had also stated that in order to throw
dust in the eyes of the police her husband puts on the robes of a ‘Babaji’.
In these circumstances it was held that it cannot be said by any stretch of
imagination that wife has admitted that her husband has renounced the
world and has become a Sahdu. In this connection the attention of court
was also invited to a police report on the back of the summon in which
the learned Magistrate had recorded that the warrant of arrest for the
recovery of the amount had been returned by the police unexecuted with
a note that Hardev Singh has become a Saint and has transferred his
entire property. It was held that, the report on the warrant was not
sufficient to prove that Husband had become a Sadhu and further that
even if it is assumed for the sake of argument that he had become a
Sadhu that does not absolve him from the duty to maintain his wife
and children. 1
Reliance was placed on a rather old case 2 that a man is not, and
ought not to be, permitted by his own voluntary act to free himself from
the elementary duty of maintaining his wife and children and he is
amenable to the provisions of Section 488 of Criminal Procedure Code,
notwithstanding the fact that he has adopted the yellow robe and had
become a member of the ‘Sangha’.
Step son
A step son is not bound to maintain his step mother, as long as he
has not taken or asking for the share of her husband who is alive. It is
also well settled that a son has to maintain his mother irrespective of the
fact whether he inherits any property or not from his father, as he has, on
the basis of relationship, the obligation to maintain his mother who has
given life to him; where as the position of a step-son is altogether
different. Equally so, there can be no dispute with the proposition that
the obligation to maintain the Hindu widow depends on the taking of the
deceased husband’s share in the family estate and to whomsoever her
husband’s share is allotted, that person will have to maintain her. 3
1 Hardev Singh vs. State of U.P., II (1995) DMC 624 All.

2 Maungtin v. Madmin, 34 Crl.LJ. 815, decided in 1942
3 Pokuru Rangaiah vs. Pokur Chinnaiah, AIR 1970 AP 33.
Determination of income—Suppression of income 261
Suppression of income
Privy Council 1 has observed as hereunder:
“A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and failing
accordingly to furnish to the Courts the best material for its
decision. With regard to third parties, this may be right enough:
they have no responsibility for the conduct of the suit: but with
regard to the parties to the suit it is, in their Lordship’s opinion,
an inversion of sound practice for those desiring to rely upon a
certain state of facts to withhold from the Court the written
evidence in their possession which would throw light upon the
proposition.”
These observations were endorsed by the Privy Council again in
Rameshwar Singh vs. Bajit Lal Pathak, 2 and have now been quoted with
the approval by the Supreme Court in Hiralal vs. Badkulal, 3 and relied
by Calcutta High Court in the following case:
‘Monthly income of a husband may not very often be within the
knowledge of the wife, particularly in a case like this where the
relation is considerably strained and the spouses are living a part
for a considerably long period, the wife staying in India and the
husband in the United Kingdom. In a case like this, the amount of
the husband’s income would be within the special knowledge of
the husband and when the issue before the Court is the amount of
such income, the onus, under S. 106, Evidence Act, would be on
the husband to disclose the same and if the fails to do so without
any good reasons, the Court would be entitled to presume against
him and to accept the allegations of the wife as to the amount of
income derived from such reasonable sources as would be
available to her. More so, where, as here, the husband does not
even deny on oath the correctness of the amount alleged by the
wife to be his income but only seeks to take shelter behind legal
technicalities.’ 4
It is well known that in a case of this nature diverse claims are
always made when one inflates the income and other suppresses. An
element of conjectures and guess work has to be done by Court. The
Court should keep in mind that an order under Section 24 of the Act does
not become a windfall for one of the applicants and nor does it become a
1 in Murugesam Pillai vs. Gnana Sambandha Pandana, AIR 1917

PC 8.
2 AIR 1929 PC 99.
3 AIR 1953 SC 225 at p. 227.
4 Chirta Sengupta vs. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98
(DB): (1987) 1 Cal HN 450: (1987) 2 DMC 163: 187 Mat LR 306:
(1988) 92 Cal WN 54.
harsh penalty for the other. A golden balance has to be struck while
expressing discretion in the matter. 1
In one case the wife had stated the income of husband to be
Rs. 10,000/- p.m. from the auto advisory service and Rs. 14,000/- per
year as agricultural income. On behalf of respondent it was submitted
that for this income of the respondent, the wife had not produced
evidence. It was held that the husband was the person who was in
possession of best evidence, but had not produced any evidence and felt
contended and satisfied by stating that his earning from the work of auto
advisor was only Rs. 2000/- p.m. So far as the agricultural income is
concerned, he denied the same. So this was a case where there is word
against word. But the husband who is the person in possession of best
evidence of his income, has not produced the same. The income as given
by the petitioner should have been taken as the income of the respondent.
In a matter where wife is claiming maintenance, the husband makes all
the efforts to see that she gets a meagre amount of maintenance by
concealing true income. 2
Where the husband is a medical practitioner, the quantum of
income in absence of any definite evidence, has to be determined by this
Court on some guess work. A skilled labour even earns more than
Rs. 1,500/- per month today. Therefore, it is not possible to believe that
a doctor cannot earn an amount an amount more than a skilled labourer.
Therefore the court would have no hesitation in drawing somewhat
adverse inference against the husband for not disclosing the correct
income and placing on record the relevant documents. Thus, it was
concluded that the income of the husband is not less than Rs. 2,000/- per
month even if he is practising in a remote place. 3
In another case it was held there was blissful non-disclosure of
his true assets and his real income. In certain respects, there has been a
modus operandi of Suppessin veri and Suggestio falsi and the approach
generally is one of evasion and avoidance to place the truth before
the Court. 4
1 Raghubir Yadav vs. Purnima Kharga (Yadav), II (2001) DMC 79 MP.

3 Sangeeta vs. Ved Parkash, I (2000) DMC 470 P&H.
4 Gunvnati C. Patel vs. Meena G. Patel, I (1984) DMC 92 Bombay;
see also Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi:
1984 Marriage LJ 316: AIR 1984 Delhi 320.
Determination of income—Unnatural conduct 263
Uncorroborated testimony of wife

In one case it was observed that it is not understandable as to how
a house-wife would prove that her husband was often going for Mujras,
that he was travelling by Air, that he was drinking and serving costly
liquor to his friends, that he was smoking 555 cigarettes, that he was
throwing lavish parties, that he was visiting race-courses and was
gambling with very heavy stakes. These are some of the activities of a
husband which a wife would naturally know and if one gives evidence
from her personal knowledge, why should the same be not relied upon.
Why should there be insistence upon substantiating much evidence ?
Why should her evidence be taken with a pinch of salt ? In Indian set up,
a woman very much belongs to weaker section. She needs protection
especially in a litigation like the present one. She has to fight a legal
battle against a mighty husband. It is a fight between two unequals. She
may not be able to substantiate many facts which she personally knows.
In a given case, woman may be more than a match for a man but
generally she is suffers, oppressed and suppressed. There is no necessity
to suspect her veracity unless the Court is convinced that her evidence is
false and there are reasons for her to harass her husband. Of course, there
is no universal standard or yard stick to measure the truth-fullness of the
evidence of a particular woman — witness in a matrimonial litigation
like the present one as everything depends upon the facts and
circumstances of each individual case but in the case in question it was
categorically held that there was no evidence on record that the wife was
interested in harassing her husband for any oblique purpose. 1
Unnatural conduct
The husband, in one case contended that that he had been running
a business in the name of Avinash Hana & Co. in parental premises A
731, Prem Nagar. Since he was suffering losses he sold it to his brother
Subhash for Rs. 2000/- but the deed of transfer shows Rs. 5500/-. He
joined the service with M/s. Naveen Industries, a firm owned by his
brother Subhash at Rs. 300/- p.m. They both were living at A-732, Prem
Nagar. But he deposed against his written statement that Brij Mohan
Sethi was the sole proprietor of that firm Naveen Industries which
manufactures cash boxes and safe. He produced Brij Mohan Sethi (RW7)
who deposed that he was the owner of Naveen Industries and he had
employed Avinash Handa (husband) on Rs. 300/- p.m. raised now to
Rs. 350/- p.m. His job is to sell and purchase goods, but he does not say
which goods. He is yet maintaining a telephone which he got in the
1 Vishnu Shankerdan Adnani vs. Nansiha Vishnu Adnani, II (1984)

DMC 11 Bombay.
category of social workers. It was held that if he was believed then

apparently he could not maintain a phone in his merger salary. It shows
that he earns much more. He had a scooter which he sold to his brother-
in-law for Rs. 5000/-. He had a refrigerator which he sold to his sister for
Rs. 1500/-. It was held that all this evidence shows that he had sold out
everything to show that he no more has any disposable income. He
denied that he had a television set, tape-recorder, etc. The wife alleged
that he had an insurance of Rs. 50,000/-. Which was not denied by the
husband. The family had extensive properties at prime places. The wife
alleged that her husband had a share in all of them, but the husband
denied it all. The learned trial Judge doubted the husband and remarked
that there was truth in the allegations of the wife. Considering all the
evidence, he fixed the income of the husband at Rs. 2000/- p.m. Upon a
survey of the evidence, one is struck with the amount of lies which the
husband has spoken. In order to defeat the claim of the wife for
maintenance of herself and the child, he has taken care to divest himself
of all his possession in favour of his close relatives. His whole case
stands demolished because he has recently contracted a second marriage
which he would not have done if he were just earning what he says he
does. All his evidence is phoney and the amount of income fixed by the
Judge was held to be rather on the low side and extremely moderate. 1
Unskilled Labourer
The wife had stated in the affidavit that the husband was engaged
in the business of bardona and was earning therefrom Rs. 3,000/- per
mensem. The husband had denied this fact and stated in his affidavit that
he is a daily wage worker. It was held that even an unskilled labourer
earns Rs. 50/- per day and the monthly income of the husband will not be
less than Rs. 1,500/-. It was also not denied that he is not able-bodied
person and could not work as an unskilled labourer. Under these
circumstances, It was held that it will meet the ends of justice if the
husband is directed to pay Rs. 750/- per month as maintenance pendente
lite to the wife with Rs. 1,000/- as litigation expenses. 2
Vague denial
In case of Gurvinder Singh vs. Harjit Kaur: 3, it was held
as under:
1 Veena Handa vs. Avinash Handa, AIR 1984 Delhi 445.

2 Seema W/o Devinder Vohra vs. Devinder Vohra s/o Late Dharam
Chand Vohra, I (1992) DMC 264.
3 (1998-2) 119 PLR 422.
Determination of income—Vague denial 265
“…….It is expected from every litigant irrespective of the fact

whether he is seeking relief from the Court no not that he would
state true and correct facts. There is not fully only implied but
specific obligation upon every party who approaches the Court to
verify the fact true to the knowledge and belief of the party
specially in the cases of present kind where the Court has to take
prima facie view keeping in mind the urgency of the matter
regarding grant or refusal of maintenance. Primarily the onus has
to be discharge by respective parties in support of the averments
made in the application or reply as the case may be. Concept of
heavy burden of proof would be applicable during the trial where
the parties have the liberty to lead oral and documentary evidence
in support of their case. The Court would be well within its
jurisdiction to draw adverse inference against a party who
actually or attempt to withhold the best evidence and true facts
from the Court with intention to frustrate the claim of others at
this preliminary stage of proceedings………”
In one case it was observed that the husband was definitely
attempting to withhold correct facts from the Court. He cleverly stated
the he was not the sole proprietor of the business or sole owner of the
house. He also stated that he used to do cycle work but said nothing
about the present. It was held that the vague averments in fact amounted
to an implied admission on the part of the husband, who apparently had
interest and rights in the properties mentioned but the nature of the
interest may not have been definitely established on record. It was held
that this clever attempt on the part of the husband was rightly frustrated
by the learned Trial Court in coming to a reasonable conclusion that the
income had to be taken at least at the rate of Rs. 3,500/- per month and
may not be at Rs. 8,000/- per month, as averred by the wife. 1
It has been held that it is settled principle of regulating the
construction of pleadings that every averment must be specifically admitted
or denied and dealt with. The vague denial cannot come to the rescue of the
non-applicant to avoid liability. Even if it is expected that the husband is a
daily wager, still it cannot be believed that he earns only Rs. 30-40 per day.
It was pointed out by the Counsel for the wife the husband is a Carpenter
and was so working when they were living together. Even if it is assumed
for the sake of consideration that the husband is a simply unskilled labourer
even then in the present day of high prices, no skilled or unskilled labour is
available to work at the amount quoted by the husband. This is matter of
fact and common knowledge, of which the Court would not hesitate to take
judicial notice of. In these proceedings stringent proof of income may not
be insisted at this stage of proceedings. Prima facie view have to be taken
1 Ashok Kumar vs. Santosh Kumari, I (2000) DMC 129 P&H.

by the Courts on the basis of the pleadings, facts, documents, if any,

produced on record and the well enunciated principles of law governing the
subject matter with some accepted canon of common behaviour and living
conditions.1
Even if, the Court proceeds on the accepted premises that the
wife with the help of her family is trying to make her both ends meet can
no way be construed as disqualification of her right to seek relief of
maintenance from her husband at best it would affect the quantum of
maintenance and cannot be a bar specific or implied to the
maintainability of such application. There are serious allegations made
by the wife regard to the manner in which husband behave. She has
pleaded danger to her life. In any case this is not the appropriate stage
when the, Court should appreciate his contention in one way or the other
as the main appeals itself is pending hearing. The husband owes a duty
and responsibility to maintain his wife specially when she is in a
destitute condition, obligation to maintain arises at the very outset. If the
wife is staying with the husband, she is entitled to be maintained and
looked after by her husband keeping in view the economic and the social
status which the husband enjoys. These are the factors which are of great
relevancy and carrying significant meaning in fixation of quantum of
maintenance, even when the wife is living separately from the husband.
The only exception to such claim would be where claim of maintenance
is barred by law or the compelling facts and circumstances of a given
case which justifies denial of maintenance. 2
A mere vague denial and vague allegations cannot ever make
foundation for denial of claim of maintenance. The averment of the wife
that the husband owns land cannot be brushed aside in the entirely. Some
element of acceptance has to be attached to the same as the parties have
lived together for a consideration time and normally they would be
knowing the source of income of each other. The allegations of the
husband that the wife is able to earn from the land owned by her family
itself shows that she is entirely dependent upon her family and at
their discretion. 3
1 Surjit Kumar vs. Amarjit Singh, 1999(1) CCC 642 P&H.

2 Surjit Kumar vs. Amarjit Singh, ibid
3 Surjit Kumar vs. Amarjit Singh, ibid.
Quantum of maintenance—Alternative sources of income 267
Chapter 8
Quantum of maintenance
SYNOPSIS
Introduction....................................267 Lump sum payment ........................ 286
Alternative sources of income ........267 Maintenance of children ................ 286
Bare minimum requirements ..........268 Maintenance of parents ................. 288
Benefit of doubt ..............................268 Maximum amount .......................... 289
Compromise ...................................268 Minor children............................... 289
Conduct & status of parties ...........269 Nominal amount ............................ 290
Consideration for determining quantum Number of dependents ................... 290
.......................................................270 One fifth of pay .............................. 290
Date from which payment is to be made One fourth of pay ........................... 292
.......................................................279 One third of pay ............................. 292
Dependents.....................................279 One third or one fifth of income .... 295
Earning spouse...............................279 Persons of royal descent................ 296
Enhancement ..................................279 Precedents ..................................... 296
Excessive amount ...........................280 Principle for computation.............. 297
Half share .....................................281 Proper proportion ......................... 298
Income of claimant/wife .................282 Provisions for rent ......................... 298
Increase or decrease ......................283 Requirement of other relatives ...... 299
Interference in Revision .................283 Right of minors .............................. 299
Irregular income ............................284 Standard of living .......................... 300
Joint family.....................................284 Status ............................................. 300
Judicial notice of inflation .............285 Working wife.................................. 300
Introduction
The amount which is fixed for payment as maintenance is arrived
at with reference to various considerations. One important consideration
is of course, the income of the paying party. This factor has already been
dealt with in the previous chapter. This chapter deals with other
considerations which prevails upon the court while fixing the amount of
maintenance.
Alternative sources of income

Mere existence of Fixed Deposit Receipt or immovably property
will not be sufficient to deny the claim of the spouse for maintenance
pendente lite. It was not the intention of the Legislature that the
applicant should be penniless person to ask for maintenance. What

Section 24 of Hindu Marriage Act, 1955 requires is that there should be
independent source of income. Therefore when the wife had filed an
affidavit that she had spent the sum of Rs. 35,000 and the only other
evidence of income which had been produced was a sum of Rs. 292 per
months, interest on some amount which may also belying to her credit. It
was held that it is only the interest which can be treated as source of
income available to her month. 1
Bare minimum requirements

It cannot be said that the Court has only to consider the bare
minimum requirements of the wife and the children but they have to be
put almost at the same position as they would have enjoyed had there
been no separation between the spouses. It need hardly be said that the
wife and the children have to be put on the same position as the
petitioner/husband/father and the amount of maintenance to be awarded
under Section 24 & 26 of the Act has to be in tune with their status and
the mode of living to which they were used to before separation between
the spouses and the wife and the children accorded the same standard of
living which they enjoyed till the date of separation. 2
Benefit of doubt
In one case the Court below accepted the income of the
respondent to be Rs. 3,000/- to Rs. 5,000/- p.m. It was held that the
benefit of doubt has to go in favour of the wife it was considered to be a
fit case where the income of the husband has to be taken to be
Rs. 5,000/- p.m. and out of this amount he had to part with a reasonable
sum for his wife and child. Normal rule is to award 1/3 rd of this amount
to the wife as interim maintenance per month. Similarly, a reasonable
sum is also to be awarded to the child. In this case, it was considered to
be appropriate and reasonable that the mother and child be given
Rs. 3,000/- p.m. as interim maintenance, from the date of application 3
Compromise
Where parties compromised on payment of lump-sum amount to wife
for maintenance of child, the order was passed in terms of settlement.4
1 Gurveen Kuar vs. Ranjit Singh Sandhu, I (1992) DMC 49 P&H.

2 K. Lalchandani vs. Meenu Lalchandani, 1998(1) CCC 383 (Delhi):
1997(68) DLT 712: 1997(6) AD(Delhi) 44: 1997(2) DMC 363.
3 Kaliben Kalbhai Desai vs. Alabhai Karamshibhai Desai, I (2001)
DMC 295 Gujarat.
4 Boomi vs. Leela Rajan, 1977 CrLJ 342: 1977 AIR (SC) 700: 1977
(4) SCC 596 (3).
Quantum of maintenance—Conduct & status of parties 269
Conduct & status of parties

In each case, the conduct of the husband must be looked into. In
one case he went abroad for the purpose of further studies leaving the
wife and two minor daughters who were only a year and two old. There
he sought divorce from the Supreme Court of Nova Scotia on a ground
contrary to the provisions of the Act in this country and then got
remarried. He had no consideration for the wife and two small daughter
and never bothered to pay any maintenance to them. It was only when the
wife wrote to the Court in Canada that maintenance of Rs. 1000/- was
fixed. That too was not paid regularly and for years it was not paid at all.
He did not tell this Court of his true income or the assets. He was living
in the United States. The second respondent with whom he claimed to
have married was also a doctor. It was held that it was a matter of
common knowledge that doctors in United State are quite well and
effluent people. During course of proceedings when the wife moved
application for enhancement of interim maintenance he withdrew from
the proceedings as otherwise he would have to tell the Court his true
income and assets. This, it was concluded that he never wanted to tell.
Calamity fell on the wife when one of her two daughters died in an
accident. Her second daughter was of marriageable age. The wife had
demanded permanent alimony and expenses of the marriage of her
daughter at US dollars two lakhs. It was held that if one converts this
amount into Indian rupees it would appear to be a large figure, but then
considering the status of the husband his conduct it should not be too
great a figure for him to pay and the wife is also entitled to live in
comfort as does the husband. Considering all the relevant circumstances
like the status of the parties, their financial condition, their means, their
way of life, their future necessities, the claim of maintenance by the wife
for herself and daughter at the rate of Rs. 10,000/- per month was held to
be fully justified. 1 As regard the spreading of the amount as interim
maintenance and alimony it was observed as under:
‘I will award this maintenance first as an interim maintenance
under Section 24 of the Act as from the date of the application
which is 1 November, 1986, and then convert the same into
permanent alimony under Section 25 of the Act. This
maintenance shall stand enhanced at the rate of 12% per annum
taking into account the inflation element which is double figure
these days. If, however, the first respondent pays US dollars
33,000 to the appellant in lump sum towards permanent alimony
1 Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996
Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 1995 MLR 385.
her claim for increase in monthly maintenance will stand

waived.’ 1
Consideration for determining quantum

There are several factor which would influence the mind of the
Court while fixing the quantum of maintenance under Section 125 of the
Code. These considerations have been described 2 as under:
(1) The earnings of the person bound to provide maintenance or
his capacity to earn.
(2) The status of the parties.
(3) The basic requirement of the person entitled to maintenance.
(4) The liabilities on the part of the person to provide
maintenance.
(5) Independent source of earning of the person entitled to
maintenance and its quantum.
(6) Inflationary trends prevalent in the market and the value of
rupee. The aforesaid points are required to be considered
seriously while fixing the quantum of maintenance. It is true that
the amount of maintenance should not be luxurious so as to
prompt the wife to remain away from the husband not it should be
penurious so as to deprive the wife or children the basic
necessities of life. The Court is obliged to address itself to all
these important aspect while determining the quantum of
maintenance. In the background of the parties and the objects for
which provisions of Section 125 of the Code are incorporated. It
may be noted that the provisions of Section 125 of the Code are
benevolent provisions designed to prevent vagrancy and
destitution. It is found from the evidence on record that the
educational expenses for the minors per month came to almost to
Rs. 40/- for each at the relevant time. Needless to repeat that
minor son was studying in 6 th Standard and minor daughter was
studying in 4 th Standard at the relevant time. Receipts for the
educational expenses were also produced. Apart from the
expenses pertaining to term fees, tuition fees, the expenses for
uniform, books, for better private tuition, for transport charges
for residence to school and back, etc., are also to be considered.
The amount of Rs. 50/- to each child, practically, would be wiped
out by the education expenses. What about the food, clothing,
medical and other expenses of life which are basic necessities of
life? Similarly, a rejected and dejected wife who is at the mercy
of her brother staying at his residence, cannot get her two ends
Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 1996 AIR(Del) 54: 1995 MLR 385.
2 in Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II
(1991) DMC 485 Guj.
Quantum of maintenance—Consideration for determining quantum 271
meet within a paltry amount of Rs. 100/-. In fact she is entitled to

reasonable expenses for residence, for her food, clothing and
other such expenses of day-to-day life so as to prevent vagrancy
and Section 125 of the Code is, in reality, intended for ensuring
reasonably supply of food, clothing and shelter to such deserted
wife and children. That is the reason why the Parliament in its
wisdom incorporated these provisions in Section 125 of the Code
so as to provide speedy and summary remedy against vagrancy
and starvation for a deserted wife, child or indigent parents.
These are the important questions to which the Court while
dealing with an application for maintenance should invariably be
looked into. Unfortunately, in the present case, the Courts below
have failed to properly examine and appreciate the
aforesaid points.
The expression “means” in Section 125 of the Code does not
signify only the visible income, such as, real property or regular source
of income or a definite employment. A person who is able-bodied and
who does not suffer from any physical or mental incapacity can be
considered as a person who has the capacity to earn sufficient income
because his physical and mental capacity provide him the capacity to
earn. Therefore, even if a person who has no definite source of income or
a regular source of income, he cannot escape his liability to pay
maintenance. It cannot be contended, even for a moment, that the person
who is not earning or who is not sufficiently earning, cannot be fasten
with the liability for providing maintenance to his wife or children. He is
liable to pay reasonable maintenance to the wife and children so as to see
that they get their two ends meet. 1
A person, who has the capacity to earn, is liable under Section
125 of the Code, even if he is an insolvent, unemployed, a professional
beggar, highly, a Sadhu or a Monk. It is for the husband to show that he
has incurred capacity or he has no sufficient means and he has no
capacity to earn.
In a Division Bench decision of the Bombay High Court in the
case of Muni Kantivijayaji vs. Emperor 2 it was held that a ground by
merely becoming a Sadhu (Jain Sadhu) is not an excuse for not
maintaining his wife. It was further held in the said case that it is for the
husband to show that is not an able bodied minor that he has incurred
incapacity to earn. Therefore, the rightful claim for maintenance cannot
be refused on the ground that the person who is liable for payment of
maintenance is not earning. What is required to be considered is the
1 Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II

(1991) DMC 485 Guj.
2 AIR 1932 Bombay 285.
capacity to earn. The quantum of maintenance is required to be fixed in

the light of the aforesaid all relevant facts and circumstances. 1
Where it is a stage of grant of interim maintenance, a reasonable
sum to be awarded towards interim maintenance pending the final
decision of the suit for maintenance. It was held that the learned trial
Court has not considered that Rs. 300/- p.m. is hardly sufficient in these
days of high price of essential commodities to meet out even one time
meal expenses. Food, clothes and house are the three basic needs of a
man/woman. While arriving at a reasonable figure of interim
maintenance, the Court should have taken care of all these requirements.
In addition to this, medical expenses may also be necessary. The amount
of Rs. 300/- p.m. is not even sufficient to make it easy for the lady, to
have three times tea. Normal living cost in these days is very high. It was
held that it is in the interest of justice and to provide a reasonable sum of
interim maintenance and the husband directed to pay Rs. 2,000/- p.m. as
interim maintenance. 2
In another case the carry home salary of the husband was
Rs. 1,300/- and he had to support aged parents. It was held that it is on a
consideration of the totality of facts and circumstances of each case that
a fair and reasonable amount of maintenance has to be fixed. By initial
order, the learned Magistrate fixed Rs. 300/- per mensem for the wife
and yet at the time of final determination the amount was hiked to
Rs. 400/- without there being any additional material on record such as
that in the interregnum period the salary of the husband had increased.
This was held to be arbitrary as there was hardly any justification for
increasing the amount. It was clarified that technically, no doubt, interim
maintenance in the nature of things was only tentative, but a perusal of
the order recorded in this behalf by the learned Magistrate shows that the
he had taken into consideration the relevant facts and material on the file
at the time of fixing the interim maintenance. Therefore keeping in view
the carry home salary and the liability of the husband, an allowance of
Rs. 200/- per mensem for the minor in addition to the allowance fixed for
the wife was held to be on the higher side. The maintenance allowance
for the wife is fixed at the rate of Rs. 300/- per mensem and that for the
child at the rate of Rs. 100/- per mensem. 3

(1991) DMC 485 Guj.
3 Ramesh Kumar vs. Shushma Ram, I (1992) DMC 200 P&H.
The amount of which a widow is entitled to recover for

maintenance includes not only that which is sufficient for her food,
clothing and residence but also an amount necessary for the comfort and
maintenance of her position as her husband surviving half. In fixing rate
of maintenance to be paid to a widow in joint family the income of the
family at the time institution of the suit and not on the date of husband’s
death is to taken into consideration as the date. Maintenance awardable
to a Hindu widow depends upon gathering together of all the facts of the
situation, the amount of free estate, the past life of married parties and
families, a survey of the condition and necessities and rights of member
on a reasonable view of change of circumstances, possibly required in
the future regard being had to the scale and mode of living and to age,
habit, wants and class of life of the parties. It is out of great category of
circumstances, small in themselves that a safe and reasonable induction
is to be made by a Court of law in arriving at any fixed sum. The test in
determining the allowance is whether the scale is suited to her husbands
position in life. 1
The sum awarded must enable the lady to live consistently with
the position of a widow in something like the same degree of comfort
and with the same reasonable luxury of the life as she had in her husband
life time provided that sum awarded does not exceed the annual profits
on the share to which the husband would have been entitled on portion
of living. 2
While fixing the amount of maintenance it is necessary to take
into consideration (1) status of the parties (2) wife who was then living
with her husband and luxurious and necessary amenities provided to her
during that period, (3) Necessities of life, though some of the items
might be luxurious, but, now a days they have become necessities of life,
and lastly, (4) her social status. On these considerations it was held that
no doubt that the non-applicant enjoyed all these facilities when the
relations between the parties were cordial. However, one cannot bank
upon and insist that despite unfortunate separation she is entitled to take
same such treatment which she enjoyed previously. At the same time one
will have to give some latitude to the earning of the applicant and the
contingent unforeseen expenses in his profession. Simply because the
wife was moving in car before the proceedings that does not mean that
the husband should provide car to her. In view of the changing
circumstances, certainly the non-applicant will have to adjust herself to
1 R.B. Gurubasvaiah vs. M.G. Preme, II (1992) DMC 191 Kar.

2 R.B. Gurubasvaiah vs. M.G. Preme, ibid.
the situation and the amount that will be received by her under Section
24 of the Hindu Marriage Act. 1
Thereafter it was held that even after giving some latitude to the
income of the applicant, certainly, the amount of Rs. 7,000/- per month
claimed by the non-applicant is ordinarily heavy and even beyond her
requirement. It cannot be forgotten that the applicant is to maintain
himself, his residence, his clinic, pay for education of his two children.
So called luxurious items as stated by the non-applicant cannot be treated
so because even for the medical profession of the applicant these are the
necessary amenities. There may be VCR, Television, cooking range at
the residence, air-conditioner, cooler etc; some times in the past these
items might have been treated as luxurious but in present days they have
become necessities of life. 2
In another case it was held that the quantum of maintenance at the
rate of Rs. 8000/- per month is certainly not on the high side. The instant
proceedings are after all for interim maintenance pending the hearing and
final disposal of the main matrimonial proceedings. The amount, to
which the wife would be entitled pending the main proceedings, should
be a fair and reasonable amount satisfactory enough to maintain herself
as the wife of her husband and in a manner and style in consonance with
their status. Interim maintenance proceedings cannot be equal with
proceedings akin to partition and possession of a share in the family
properties. All that the Court has to consider is what, in the facts and
circumstances of each case, would be an amount fair and just which
should be awarded by way of interim maintenance to the wife in
consonance with the status of her matrimonial home and of course, in
consonance with the life style of her own husband whose wife she
continues to be. It was observed as under:
‘One is unhappy to see the extent to which the husband is wiling
to go in order to avoid in a reasonable manner his liabilities to
maintain his wife. One who has been continuously over the years
exclusively enjoying large benefits of very valuable properties in
Bombay and Ahmedabad as also the large benefits of a running
cinema theatre and one who is a managing director of a private
limited company in which he hold over 90% interest and one who
has been paying as such as Rs. 2,40,000/- on salary, can as well
afford to pay a fair, just and reasonable sum by way of
maintenance to his own wife. It is also worth noting that for the
last ten years the husband has been staying separately from his
wife. All these long years, the husband has been staying
1 Narendra Vidyadhar Sardesai vs. Shaila, II (1992) DMC 598 Bom.

2 Narendra Vidyadhar Sardesai vs. Shaila, ibid.
separately from his wife. All these long years, the husband did
not even bother to help her. And like every other estranged Hindu
wife, the wife here also has somehow managed to live perhaps
under heavy obligations of her relations. She even faithfully and
devotedly looked after and brought up her son born of this
matrimonial tie. It is only now when the husband has chosen to a
drag his wife to a Court of law by way of the present matrimonial
petition — which was literarily the last straw on the camel’s back
— that she, perhaps unable to hear the sufferings any longer, has
chosen to take out the present notice of motion for maintenance.
Even in these proceedings, she has expressed her willingness to
go back and stay with her husband if only he gives up, according
to her, his adulterous life with one Rita, a former employee in an
Attorney’s firms.
An amount of Rs. 5000/- per month would be a fair, just and
reasonable award in favour of the wife by way of maintenance.
Indeed, the husband himself seems to suggest maintenance of
Rs. 4500/- per month vide ground (aj) of the memorandum of
appeal.’ 1
In another case a question was posed by the High Court in these
words: ‘Having regard to the necessities of life given the walk of life of
these people, with him working in an insurance office as a salaried
employee, with the wife living at home with the onerous duty of bringing
up these three young children, does the order produce a result in which
the husband on the one hand in his home, the bed sitter, has a
comparable standard of living to the wife and children in their home?’
Then the court went on to answer this question as under:
‘One starts from the position that on this sort of salary scale the
family is going to have a significant drop in the standard of living
as a result of divorce because the income, which is really only
enough to keep the family comfortably in one house, has to be
split up so that the family can live in two places. There is a
difficulty in the presentation of the facts, that on the figures that
we were given first it looked as if the wife had a surplus of
income over expenditure of ₤ 6 a week or so, but when her
affidavit was scrutinised it appears that the figure given as her
expenditure does not, with any accuracy, disclose the breakdown
of her overhead expenses on rates, water rates, telephone, ground
rent, heating, lighting and a thing called ‘maintenance contract’.
These were items that were covered by the original voluntary
payment of ₤ 40 a month for those purposes, and there is not
anything before us, nor have we received any information about
1 Gunvnati C. Patel vs. Meena G. Patel, I (1984) DMC 92 Bombay;

Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984
the evidence below, sufficient to enable us to know what the real

outgoings on those important expenses is and ought to be. For
myself, I would say that the family cannot afford a telephone any
longer, given the realities of their difficulties. Whether the can
afford the amenity of very much gas central heating to be seen. I
would approach those elements which are not precisely quantified
by saying that, taking the factors of weekly expenditure which are
disclosed in the wife’s affidavit, obviously some pounds a week
must be added for those items that were not precisely
quantified.’ 1
In another it was observed from the pleadings and the evidence
adduced during trial it was patently clear that the respondent runs a
business in plywood and furniture as a partner. Besides, the respondent’s
parents have two separate establishments in their respective names
dealing with furniture’s. Record further showed that the family of the
husband had a flat of their own. The husband, however, sought to assert
that his monthly income was only Rs. 700/- to Rs. 800/- per month but it
was observed that he was not detailing the correct facts about his income
and even though he had in his written statement carved leave to refer to
and rely upon the profit and loss account of his business, the same was
not produced before the Court. In these circumstances it was held
as under:
‘Considering the nature of the business the petitioner has had
been carrying on, we find no hesitation in concluding that the
income, as stated by the petitioner, is absolutely incorrect and he
earns a much larger income than what he was claimed.
Admittedly, the appellant who lives in Bombay has no
independent source of income. It would, therefore, be difficult, if
not impossible, for her to make both ends meet with the meagre
sum of Rs. 400/- per month. Considering this aspect of the matter
and considering the income which the respondent is earning from
his own business and that of his parents with whom he is living,
we feel that he should pay a sum of Rs. 1,200/- per month to the
appellant.’ 2
In another case husband was serving the Central Government in
the pay scale of Rs. 2200-4000 since before 1986 and the learned Judges
has also took into consideration that at the time of hearing the
proceedings, he was getting 80 per cent dearness allowance in addition to
the basic pay in that scale and consequently he has determined the
monthly maintenance allowance. It was held that on an income of
Rs. 4000/- per month, he could very well pay Rs. 500/- per month to his
1 Scott vs. Scott, (1978) 3 All ER 65 (CA): (1982) 2 DMC (BJ) 80.
2 Pushpa Anil Sharma vs. Anil Shivmurthy Sharma, I (1994) DMC
583 Bombay.
divorced wife until she remarries. Liberty was granted to the husband to
approach the Family Court for modification or cancellation of the
maintenance allowance in the event of the lady entering into remarriage. 1
In another case the gross salary of husband was Rs. 2,733/-. The
net pay available to him was Rs. 2,163/-. Thereafter, he has made certain
deductions and the take home pay is found to be Rs. 1,039/-. It was held
that for computing income in such cases, the deductions made by the
husband by way of contribution towards benevolent funds, contribution
towards GPF, repayment of advance, etc. cannot be taken into
consideration. Therefore, his gross salary can be taken into consideration
as Rs. 2,733/. It also transpires from the pay slip produced on record that
he is paying a rent of Rs. 45/- per month for the quarter he is occupying.
Therefore it was held that even if the gross salary that was earned by the
husband is taken into consideration, deduction of Rs. 1,200/- from that
amount would leave behind an amount of Rs. 1,500/-. Therefore it was
held that an amount of Rs. 500/-, by way of maintenance, would meet the
ends of justice. 2
In another case the husband was getting Rs. 4,000/- per month as
salary. The wife was also receiving a salary of Rs. 879/- per month, as a
teacher. Considering the huge income which the husband is receiving and
considering the paltry sum of the salary which the wife is receiving as a
teacher, it was held just and proper that alimony pendente lite of
Rs. 500/- per month, should be granted and she should also be granted
the litigation expenses of Rs. 5,000/- considering the fact that the
husband dragged her to Court not only in the matrimonial proceedings,
but also in other proceedings. 3
In another case the husband was a Driver in the Roadways and his
monthly income was Rs. 1500/- per month, according to the wife, while
according to the husband it was only Rs. 1090.90 per month. That apart,
there was also evidence that he also owned a Bus from which he had
income of Rs. 2000/- per month. However, considering the income of
Rs. 1090.90 per monthly only, the court below in view of the fact that
the husband was neither maintaining his wife nor his two minor children
awarded Rs. 300/- per month to the wife and Rs. 100/- each to the two
1 Ram Ashrey Prasad vs. Pawan, II (1995) DMC 121 All.

2 Safiyaben Mohamed Sahid Ansari vs. State of Gujarat, II (2000)
DMC 494 Gujarat.
3 Joykutty Mathew vs. Valsamma Kuruvilla, I (1991) DMC 479 Ker.
minor children, total Rs. 500/- which amount was held to be not
erroneous or suffering from any illegality. 1
In one case evidence showed that the husband and his second
wife were living in a large and sumptuously furnished house, and that in
each of the last two years the husband had spent, from one spouse or
another over ₤ 60,000 on himself, his second wife and her children. It
was observed as under:
‘In order to enable the wife to enjoy during her lifetime the same sort of
standard of living as MRs. L. enjoys now is likely to enjoy in the future,
she should in addition to having transferred to her the husband’s half
share in Pilgrim’s Wood, be awarded a lump sum of such an amount as
will meet two requirements: firs, a sum sufficient to put Pilgrim’s Wood
into proper condition, and to furnish its interior in a reasonably
sumptuous way; and, secondly, a further sum sufficient, if she chooses to
apply it in that way, to purchase for her an annuity of ₤ 30,000.
As regards the first sum, I should regard ₤ 75,000 as a fair figure on the
evidence available. As regard the second sum, actuarial tables indicate
that the capital cost of providing an annuity of ₤ 30,000 after deduction
of tax on the taxable part of the annual sum provided, is of the order
of ₤ 310,000.
On these figures it seems that the proper lumps sum to award is
₤ 385,000. neither of the constituent figures is exact, however, and in all
the circumstances of the case, including, in particular, the indebtedness
of the wife, and the fact that the sum is being paid by instalments, I think
it would be fair to round off the figure at ₤ 400,00. I would not, however,
regard that sum as including in it any amount in respect of the future
maintenance of Simon, which should for the reasons which I gave
earlier, be dealt with by an appropriate order for periodical payments
payable directly to him.’2
In yet another case materials were brought to record to prove that
husband was sufficient means. What is sufficient in a particular case
would depend upon the social and economic status of persons. Petitioner
ought to have brought to record materials to show how his other family
members are maintained so that Court could have considered the equal
scope for maintenance of wife. In absence of any material, finding of the
trial Court that Rs. 200/- per month would be just allowance cannot be
said to be unreasonable even keeping the minimum standard of 1985
in view. 3
1 Dinesh Kumar Singh Rathore vs. State of U.P., I (1991) DMC 638
All.
2 Preston vs. Preston, (1982) LR Fam. 19 (CA): (1986) I DMC (BJ) 25.
3 Neheru Bag vs. Tapaswini Bag, I (1992) DMC 197 Orissa.
Quantum of maintenance—Enhancement 279
Date from which payment is to be made

There is no legal impediment in directing that maintenance
should be paid, to be effective from the date of service of summons of
the main petition for restitution of conjugal rights, on the wife.
Accordingly it was held:
‘The petitioner was awarded future maintenance at the rate of
Rs. 200/- per mensem as per orders of this Court dated 17-2-
1984. She has claimed maintenance at the same rate for the entire
period from the date of filing of the main petition 3-3-1980. As
stated earlier, the quantum can be fixed only on the basis of the
averments contained in the affidavits filed by the parties in his
court. In all the circumstances of the case, and in the light of the
fact brought out in the various affidavits filed by the parties. I am
of opinion, that a sum of Rs. 100/- per mensem is a fair and
reasonable amount to be awarded towards maintenance for the
period, 13-3-1980 to 17-2-1984. Accordingly I fix a sum of
Rs. 4,700/- towards maintenance for the said period plus a sum of
Rs. 500/- towards expenses for contesting the proceedings in the
court below, totalling to Rs. 5,200/-’ 1
Dependents
In one case the wife has four grown up children who were
receiving education and a sum of Rs. 1700/- which was being paid to the
wife and her four children was held to be not sufficient. Therefore it was
directed that the husband shall pay a total sum of Rs. 3,000/- per month
as maintenance to the wife and her four children. 2
Earning spouse
In one case the claimant’s mother was earning a monthly income
of Rs. 8,000/- out of which Rs. 4,000/- was being paid as rent and
considering the fact that the plaintiffs are two unmarried daughters who
stay with their mother who had to incur expenses for their upkeep and
education, it was held that the interest of justice would warrant that an
interim maintenance of Rs. 1,500/- per month should be granted to each
of the plaintiffs payable from the date of filing of application besides a
sum of Rs. 5,000/- towards litigation expenses. 3
Enhancement
A perusal of sub-section (1) of Section 127 of the Criminal
Procedure Code, 1973 leaves no manner of doubt that on proof of a
1 Nalini vs. Velu, II (1984) DMC 434 Kerala: 1984 Ker LJ 438: 1984
Ker LT 790: AIR 1984 Ker 214.
2 Sheela vs. Rajveer Singh, I (2000) DMC 733 (SC).
3 Radhika vs. LT. Col. J.C. Dhir (Retd), II (2000) DMC 232 Delhi.
change in circumstances of any person receiving under Section 125 of

the Code the monthly allowance or ordered under the same section to pay
a monthly allowance to his wife the Magistrate may make such an
alteration in the allowance as he deems fit. It is thus quite apparent that
there would be no legal bar for alteration in the maintenance allowance
already fixed in favour of the wife under Section 125 of the Code merely
because the said order was passed on the basis of compromise between
the parties. Nor it would be obligatory for the wife to first get the order
under Section 125 of the Code set aside in her favour and then apply for
alteration of the maintenance allowance under Section 127 of the Code. 1
The Hindu Law recognised that the right of maintenance was a
substantive and continuing right and the quantum of maintenance was
variable from time to time. Neither the provisions of Section 11 of the
Code of Civil Procedure nor the principles of res judicata will bar a suit
for maintenance on an enhanced rate for a different period under altered
circumstances even though on an earlier occasion a maintenance decree
had been passed and a certain rate of maintenance had been fixed
thereunder. The reason being that such a decree as to the rate of
maintenance is not final. 2
Excessive amount
Maintenance allowance granted at the rate of Rs. 500/- per month
cannot in anyway be said to be excessive. 3
Where income of husband was only Rs. 360/ p.m., grant of
Rs. 200/- as maintenance was held to be excessive and amount was
reduced to Rs.150/- p.m. 4
In another case the husband was a Medical Officer getting a
salary @ Rs. 5000/- per mensem as determined by the Matrimonial
Court. The maintenance pendente lite @ Rs. 1000/- fixed by the
Matrimonial Court was held to be excessive. It was held that the
Matrimonial Court did not take into consideration the fact that the
progenies from the wedlock were being maintained by the husband. 5
Half share
1 Jaswant Singh vs. Ranjit Kaur, I (1991) DMC 528 P&H.

2 Ram Shanker Rastogi vs. Vinay Rastogi, AIR 1991 All 255 (DB)
3 Mahesh Babu Saxena vs. Additional Chief Judicial Magistrate,
Bareily, I (1996) DMC 594 All.
4 Ganeshbhai Keshavabhai vaghari vs. State of Gujarat, I (1986)
DMC 20 Guj
5 Ramesh Kumar Leekha vs. Raj Kumari, I (1992) DMC 311 P&H.
Quantum of maintenance—Half share 281
According to the Hindu Mythology, wife has been given the

status of ‘Ardhangni (Half Part) and as such she shares sweet or sour
equally alongwith her husband and therefore, so far as the income of the
husband is concerned, she is also entitled to share equally. Thus, the wife
is justified to have equal share in the income of her husband. 1
There is no hard and fast rule, and each case depends on its own
facts, and the Court has been given wide discretion to fix the amount of
maintenance, keeping in mind the provisions of Section 23(2) of the Act.
If the income of the husband is on the higher side and if he has no
obligation to maintain any other persons except himself, and if the wife
is neglected, who has to maintain two children, the share from the
income of the husband to which the wife should be entitled may be
considered to the extent from one-third to one-half, depending upon the
circumstances of the case and the need of the family. In the instant case,
the net income of the husband is assessed at Rs. 2,000/- per month plus
income from the joint family properties. The amount of Rs. 1,000/- per
month claimed by the plaintiff-wife is less than one-eighth of the net
income of the defendant-husband and, therefore, it is not necessary, in
the instant case, to decide the percentage to which the plaintiff-wife will
be entitled to. At least, she is entitled to Rs. 1,000/- as maintenance per
month from the date of the suit till she alive, subject to her right to apply
for enhancement of maintenance in accordance with the income of the
defendant-husband under Section 25 of the Act. 2
In Radhikabai @ Ambika vs. Sadhuram Awatrai, 3 the Court held
that after deducting amount for uncertainties the total income of the
husband is to be divided equally amongst the dependents of the husband,
if any, including himself and in this way the wife shall be entitled to
have her proportionate share. In another case, the material on record did
not show that there were dependents of the husband. Therefore, if an
amount of Rs. 100/- is deducted out of the income Rs. 1500/-, for
uncertainties, then the -wife was accordingly held entitled to receive
maintenance at the rate of Rs. 700/- per month as alimony. 4
1 Pratima Singh vs. Abhimanyu Singh Parihar, I (1986) DMC 301 MP.
2 Maganbhai Chhotubhai Patel vs. Maniben, AIR 1985 Gujarat 187:
1985 Guj LH 181: 1985 (1) 26 Guj LR 271.
3 AIR 1970 MP 14.
4 Pratima Singh vs. Abhimanyu Singh Parihar, ibid.
Income of claimant/wife
Very often financial support is given to the wife by her father. It
has been held that the sum received by wife from her father is not her
income but only a bounty which she may or may not get. 1
The mere fact that the language of Section 488(1) of the old Code
does not expressly make the inability of a wife to maintain herself a
condition precedent to the maintainability of her petition, does not imply
that while determining her claim and fixing the amount of maintenance,
the Magistrate is debarred from taking into consideration the wife’s own
separate income or means of support. There is a clear distinction between
a wife’s locus standi to file a petition under Section 488 and her being
entitled, on merits, to a particular amount of maintenance thereunder. 2
There is nothing in these provisions to show that in determining
the maintenance and its rate, the Magistrate has to inquire into the means
of the husband, alone, and exclude the means of the wife altogether from
consideration. Rather, there is a definite indication in the language of the
associate Section 489(1) of the old Code, that the financial resources of
the wife are also a relevant consideration in making such a
determination. Section 489(1) provides, inter alia, that “on proof of a
change in the circumstances of any person receiving under Section 488 a
monthly allowance, the Magistrate, may make such alteration in the
allowance as he thinks fit”. The “circumstances” contemplated by
Section 489(1) must include financial circumstances and in that view, the
inquiry as to the change in the circumstances must extend to a change in
the financial circumstances of the wife. 3
obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself. It has been held that where the wife has no income of
her own, it is the obligation of the husband to maintain her and her two
unmarried daughters one of whom is living with wife and one with him.
Section 24 of the Hindu Marriage Act, 1955, no doubt talks of
maintenance of wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since wife is maintaining the eldest unmarried daughter, her right
to claim maintenance would include her own maintenance and that of her
1 Kulbhushan Kunwar Dr. vs. Raj Kumari, AIR 1971 SC 234: 1971
All LJ 1047: 1970(3) SCC 129: 1971(2) SCR 672.
2 Bhagwan Dutt vs. Kamla Devi, 1975 CrLJ 40: AIR 1975 SC 83:
1975(2) SCC 386: 1975(2)SCR 483: 1975Mad LJ (Cr) 81.
3 Bhagwan Dutt vs. Kamla Devi, ibid.
Quantum of maintenance—Interference in Revision 283
Increase or decrease
No criteria has been laid down to be taken into account while
considering the application under Section 127 of the Code and the
ground on which reduction or enhancement of the amount may be made.
A change in the circumstance of any person appears to be the sine qua
non for vesting power in the Magistrate to deal with the matters
regarding alteration of quantum of maintenance. In these circumstances
it has been held reasonable to read Section 125 and 127 of the Code
together since both the section deal with the same subject object matter
and one is an off shoot from the other. This position becomes
particularly clear since the Magistrate is vested with power both to
enhance and reduce the quantum of maintenance as evident from the
provisions of the Sub-section (1) of Section 127 of the Code. It is
therefore necessary that in order to deal with the application filed under
Section 127(1) for modification of the order of maintenance, the
Magistrate should consider the matter in the light of the criteria which
usually weigh with the Court in the proceeding under Section 125. 2
In the proceeding under Section 125, the Magistrate is to consider
the reasonable requirement of the wife for her proper maintenance
considering the standard of living which she was enjoying/would have
enjoyed in the house of her husband, the reasonable amount required for
her separate maintenance considering the prevailing cost of living, price
of essential commodities, etc., and also the income of the husband and
income, if any of the wife. Unless this position is accepted it will lead to
a mechanical disposal of the application filed under Section 127 simply
on the ground that there has been a change in the circumstance
subsequent to passing of order under Section 125. 3
Interference in Revision
In one case Rs. 1300/- per month as maintenance pendente lite as
also litigation expenses of Rs. 2200/- was fixed by consent of both the
parties. The wife then brought certain more facts to the notice of the
learned ADJ like that he was actually drawing salary of Rs. 4300/- per

3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
2 Santilata Pradhan vs. Mrutunjaya Pradhan, I (1991) DMC 256
Orrisa.
3 Santilata Pradhan vs. Mrutunjaya Pradhan, ibid.
month and was also, getting bonus of Rs. 14000/- to Rs. 15000/- per
year. In addition the husband was alleged to be recovering Rs. 1500/- per
month as rent. The learned ADJ carefully considered these circumstances
some of which were also admitted in the reply filed by the husband. He
came to the conclusion that husband was actually receiving Rs. 14000/-
to Rs. 15000/- approximately per annum as bonus. Thus adding this
income he came to the conclusion that the monthly income of the
husband was round about Rs. 5000/- per month and, therefore, increased
and maintenance allowance from Rs. 1300/- to Rs. 1600/- per month. It
was held that there was no jurisdictional error in the conclusion arrived
at by learned Additional District Judge. 1
Irregular income
While considering the irregular nature of income it was observed
as under:
‘The error committed by the Revisional Court is that although the
husband was receiving Rs. 620.65 p. per month, his salary has
been considered as Rs. 1,000/- per month. Secondly, the extra
work which the husband undertakes on holiday cannot be said to
be any fixed income. No fixed income is proved on record and
therefore, the uncertainly of the income cannot be taken into
consideration to enhance the quantum.’ 2
Joint family
In one case husband was residing with his parents and his brother
in a flat which was a luxurious one having air-conditioner. The husband
was working as a Director of a firm and his family belongs to the
business community and the income appeared to be quite substantial. It
was held that even assuming that the net income of husband is about
Rs. 2500/- per month, still there is nothing wrong if the learned Judge
awarded Rs. 100/- to the wife and Rs. 500/- each to the two children. It
was also held that the husband must thank himself for the situation as it
is of his own making and should have exercised more restraint and
should have also advised his parents to do so while dealing with
his wife. 3
In another case the husband was in service in a private auto
company and is drawing a salary of Rs. 500/- p.m. and was a member of
the joint Hindu Family which was possessed of certain agricultural lands
1 Shashi Bawa vs. Rumneek Bala, I (1991) DMC 386 Delhi.

2 Kanhaiya Lal vs. Sau. Suman, I (1989) DMC 157 Bombay.
3 Suren Chndrakant Shah vs. Rita Suren Shah, II (1985) DMC 329
Bombay.
Quantum of maintenance—Judicial notice of inflation 285
giving two crops in a year. Under the circumstances, the amount of

interim alimony to the extent of Rs. 75/- per month was held to be
unreasonably low. Treating the total monthly income of the non-
applicant to be Rs. 750/- p.m., monthly interim alimony of Rs. 150/- was
held to be reasonable and proper and the litigation expenses of Rs. 200/-
was held to be very meagre and therefore was enhanced to Rs. 350/-, in
the peculiar facts and circumstances. 1
In one case the plaintiff/wife had given details of the properties
and business activities of the defendant. She had also given the details of
the business which was being run by the family. It was not disputed by
the defendant that he was part and parcel of a joint family. It was also
not disputed that he is married for the second time. Therefore, it was
held that the contention that he had no independent income to provide for
maintenance of the wife, cannot be accepted. It was also held that once
the details of the properties and the business had been specifically
mentioned in the petition, it was for the defendant to disclose the
income. He had chosen not to give any details of the income. He merely
stated that he is only helping in the business of his parents. When the
plaintiff had made allegations that the parents of the defendant were
constantly demanding dowry, it was stated by the Counsel for the
defendant that the family is well off that therefore, there is no need to
make any demands for dowry. Yet on the other hand in reply to the plea
for maintenance it is stated by the defendant that he has no independent
income. In this background it was held that the plaintiff had made out a
prima facie case for interim maintenance. The defendant was directed to
pay maintenance to the plaintiff in the sum of Rs. 2,500/- per month
from the date of the application. 2
Judicial notice of inflation

The Court can also take judicial notice of the cost of living and
also the inflation. The maintenance can be fixed with reference to the
cost of living as of today and future rise in the cost of living on
approximate basis. It is not that the wife has to come to the Court again
and again with increase in cost of living. The maintenance can be linked
to the inflation. Of course, if there is some substantial change in
application could be filed for modification of the maintenance awarded. 3
1 Bandna vs. Ramnaresh Shivhare, II (1994) DMC 161, MP.

2 Tabassum Shaikh vs. Shaikh S.J. Shaikh, I (2000) DMC 95
Bombay.
Marri LJ 423: 1995(3) AD (Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 54: 1995 MLR 385.
Judicial notice can be taken of rising prices with the result that
the cost of bare existence is regularly rising, rather mercurially. 1
Having regard to the rising cost of living at the relevant point of
time, which the Court can take judicial notice at least Rs. 250 to 300/-
per month if nor more, was held to be required for the maintenance of the
children, the expression ‘maintenance’ being understood as defined in
Section 3(b) of the Act. The question of adequacy is not to be tested by
the fact that they were not subjected to abject starvation, but the same
will have to be tested by the standard reflected in the definition
of ‘maintenance’. 2
Lump sum payment

The payment of maintenance to the wife by way of lump sum can,
by no stretch of imagination, be stated to be contracting out of the legal
obligation to maintain the wife. To put it otherwise such payment is sine
qua non of taking cognizance of the legal obligation of the husband to
maintain the wife. However such lump sum payment in a sum of
Rs. 5000/- paid in the year 1967 can, by no stretch of imagination, be
stated to be so merger or inadequate, so that it can be stated that by the
investment of the said sum, the wife cannot meet out her requirements
towards her maintenance. 3
Maintenance of children
Under Section 3(b) of the Hindu Adoptions & Maintenance Act
‘maintenance’ includes— (i) in all cases, provision for food, clothing,
residence, education and medical attendance and treatment; (ii) in the
case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage. 4
Reasonable expenses of and incidents to their marriage also
would come under the definition of ‘maintenance’. Looked at from any
point of view and from any angle, therefore, it is not at all possible to
say that the plaintiff were adequately maintained. Even otherwise, as
pointed out earlier, it is not open to the defendant to say that because
they were maintained till the date of the suit by the mother they should
be continued to be maintained by her only. Such cannot be the stand of
2 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka.
3 Palanimmal vs. K. Chinnusamy, II (1995) DMC 140 Madras.
4 Gurupadayya vs. Ashalata, ibid.
Quantum of maintenance—Maintenance of children 287
the defendant because, as pointed our earlier, the liability of each of the
parents is several. 1
The husband was a Medical Officer getting a salary @ Rs. 5000/-
per mensem as determined by the Matrimonial Court. The maintenance
pendente lite @ Rs. 1000/- fixed by the Matrimonial Court was held to
be excessive. It was held that the Matrimonial Court did not take into
consideration the fact that the progenies from the wedlock were being
maintained by the husband. It was not disputed that the progenies are
being educated in Public School and the husband had to incur
expenditure on the maintenance of the children. Under these
circumstances, it was held that it will meet the ends of justice if the
husbands is directed to pay the interim maintenance at the rate of
Rs. 750/- per mensem till the final disposal of the petition under Section
25 of the Act. However the husband was permitted to deduct the
maintenance allowance @ Rs. 400/- per mensem payable under the
orders of the Judicial Magistrate under Section 125, Criminal Procedure
Code. 2
In another case the Supreme Court directed the father who had
married again, to deposit a sum of Rs. 30,000/- for each of the two
daughters who were with their mother as the husband had married again
and had paid only Rs. 50/- per month to each of the daughters which
amount was also enhanced to Rs. 1000/- per month from the January of
the year of the decision. 3 In yet another case while granting decree of
divorce the father was directed to pay Rs. 4000/- for maintenance of the
two daughters till they are married or are able to earn their livelihood.4
In this case the children were living with their mother who was also
earning about Rs. 4000/- per month. 5 In yet another case the monthly
maintenance granted to the son was Rs. 1000/- which was enhanced to
Rs. 3000/- per month till he attains the age of 27 years. 6
In a rather latest case the Supreme Court has held that the
liability to maintain the children, under section 26 of Hindu Adoptions &
Maintenance Act, 1956, is mutual and both the parents should contribute
towards their maintenance, and the amount of Rs. 3000/- fixed for
1 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka.

2 Ramesh Kumar Leekha vs. Raj Kumari, I (1992) DMC 311 P&H.
3 S. Jayalakshmi vs. T. Prakash Rao, 1996 (8) SCC 501
4 Sneh Prabha vs. Ravinder Kumar, 1995 Supp (3) SCC 440
5 Sneh Prabha vs. Ravinder Kumar, ibid.
6 Kirti Malhotra vs. M.K. Malhotra, 1995 Supp (3) SCC 522
maintenance was directed to be shared by both in a ratio of 2:1 as per

their respective incomes. 1
Maintenance of parents
In fixing maintenance but allowance the court has to Take into
account not only the needs of the person who claims maintenance but
also the capacity, status, commitments and the obligations of the person
who is to pay it. It is to be recalled that the applicant has two infants
who are to be looked after by him and this is the stage when he is to
bring them up and also to give them proper education so that they grow
in the manner in which every parent would like their children to grow.
The court while dealing with such matters should not only take into
account the respective needs and requirements of the parties but should
also take into account the status, the capacity to pay, commitments and
the obligations of the person held guilty of neglect. It would be unjust to
grant maintenance in an arbitrary manner. In certain circumstances it
might have the effect of virtually rendering the other side a destitute. In
dealing with this aspect of the case the courts below have made an
emotional approach and that is how the quantum of maintenance
was fixed. 2
In this case while allowing this allowance the courts below had
taken into consideration that the income of the husband is about
Rs. 3,000/- per month. There was also a mention of the fact that the wife
of the petitioner was also earning about Rs. 1,000/- per month. It is true
that the income of the wife was not taken into consideration while fixing
the quantum of maintenance but then it appears that this has affected the
minds of both the courts below. The husband had submitted a chart of his
latest income before High Court wherein he had pointed out to various
deductions he has to make from his pay and had stated that after making
the compulsory deduction he is only left with Rs. 1,300/-. He has placed
his total income at Rs. 3,349/-. He has further stated therein that after
paying Rs. 900/- to his parents he is left with only Rs. 400/- to maintain
himself, his wife and two children. It was held that the only
consideration in allowing the quantum of maintenance that seems to have
weighed with the courts below was the income of the petitioner and they
have not taken into consideration the compulsory deductions which the
petitioner had to make from his income as an employee. Both the courts
below have failed to take into consideration some both factors while
fixing the quantum of allowance. It was also held that it had been totally
1 Padmaja Sharma vs. Ratan Lal Sharma, 2000 (4) SCC 266
2 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
Quantum of maintenance—Minor children 289
forgotten that the respondents to whom the maintenance is being granted

have to live together under one roof and one hearth because the idea is to
provide for their maintenance and not to make provisions for saving. 1
Maximum amount
In one case the applicant was an illiterate old woman without
means. The husband was an employee of the vehicle factory, and
according to his own admission, he was getting Rs. 3,500/- per month as
salary. It was held that must have been before the revision of pay under
the Fifth Pay Commission and he had no other liability as all his six
children are major and married. Maintenance of Rs. 500/- per month to
the wife was affirmed. 2
Minor children
In ordinary circumstances, the expenses on a child which belongs
to such a family whose parents are indisputably deriving more than
Rs. 4000/- per month as income, should not be less than Rs. 1000/- per
month in any case. When the learned Magistrate after taking notice of the
factual position in this case has held that both the father and mother are
equally liable to support and maintain the petitioner, then they should
bear the expenses for the maintenance of the child in equal shares.
Therefore it was directed that it will be in the interest of justice if the
father is ordered to pay maintenance of Rs. 400/- per month. 3
The father has given evidence that his per day income was only
Rs. 20/-. The learned Trial Judge, on scanning the evidence, came to the
conclusion that even if the father was a driver of a taxi, his income per
month would not be less than Rs. 1,000/- to Rs. 1,200/-. The conclusion
drawn by the learned Trial Judge was held to be correct. But, it was
pointed out that the Counsellor’s Report also shows that the father was
working as a driver in a private sector and he was earning approximately
Rs. 1350/- to Rs. 1400/- per month. That being the monthly income of
the father, a maintenance at the rate of Rs. 200/- p.m. in favour of a
minor child cannot be said to be excessive in any manner. 4
It is the bounden duty of the father to maintain his wife and
minor children. When it was fully proved that he had neglected and
refused to maintain them it was held that in these days, the amount of
1 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
2 Prema Bai vs. Kanchhedilal, I (2000) DMC 183 MP.
3 Kumari Salon vs. Surjit Kumar Ratti, I (1996) DMC 156 P&H.
4 Wahid Rajjak Sawar vs. Shahanaz Wahid Sawar, II (1994) DMC 4
Bombay.
Rs. 250/- allowed to each child is not enough for their maintenance,
particularly when they are to get proper education. 1
Nominal amount
In one case the husband was working as Station Superintendent in
South Central Railway. Although his Pay Certificate was not filed, his
pay was stated to be Rs. 3,500/- per month. The wife claimed Rs. 700/-
per month for his maintenance, but only Rs. 500/- was the maximum that
can be allowed under Section 125 of Code of Criminal Procedure. It was
submitted that the husband had since retired and that he was paralysis-
stricken and was hospitalised and, therefore, he himself needed a lot of
money for his treatment etc. It was held that in any case the wife was
entitled for maintenance and even if nominal amount is to be awarded,
the wife was held to be entitled to a minimum of Rs. 300/- per month.
But since he was paralysis-stricken, he was permitted to pay the arrears
of maintenance in 12 equal monthly instalment, failing which the wife
will be entitled to enforce the maintenance order for full amount. 2
Number of dependents
In one case the salary of husband was Rs. 1675/- considering the
fact that he was required to maintain family of 6 persons, therefore, it
was held to be just and reasonable to pass an award of maintenance at the
rate of Rs,. 200/- per month. 3
One fifth of pay

There is no rational basis for this rule which prevents the wife
from claiming more than 1/5 th , even when her needs, and capacity of the
husband, warrant awarding large amount. This amounts almost to be rule
of the thumb. Such a provision in the Act of 1869, may have a been
based on then notions and concepts, as to a woman’s status and position
in the society and her claims against the husband. The provisions of the
Hindu Marriage Act enacted in 1955 are, on the other hand, based on the
recognition of the wife as equal partner of her husband in life. This is
just in keeping with the guarantee of equality to every citizen afforded
by the Constitution. It does not depend on whether the wife chooses to
devote her talents to household work or to sphere outside. This Act does
not permit denying her right to share the husband’s earnings, like his
1 Santosh Kumari vs. Satish Kumar, I (2000) DMC 660 P&H.

2 Anil Kumar vs. Turaka Kondala Roa, II (1999) DMC 683 AP.
3 Takhatben vs. Jashubhai Prabhatsingh Rathod, II (1984) DMC 437
Gujarat; Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC
242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh
WR 452L 1982 Hindu LR 387.
Quantum of maintenance—One fifth of pay 291
fortunes or misfortunes, on the footing of equality. This Act enables even

the husband to claim maintenance from the wife when former has no
source of subsistence and the latter has. Such a rule, apart from being
unreasonable and irrational, also cuts at the root of such equality. Such a
rule also militates against the reasonableness of approach conceived
under this section. 1
This rule of thumb, so far as 1/5 th of the amount of income is
concerned, has no reasonable basis except following the provisions of
Indian Divorce Act, 1869. Whenever Courts award even interim alimony,
social status of the parties, earnings of the husband who has to pay
maintenance, liability of the wife, require of particular treatment, etc. all
are to be considered while awarding interim alimony or even at the time
of passing the final order of maintenance. Section 24 of the Hindu
Marriage Act, 1955, speaks of fixing a reasonable amount, and that
reasonableness has to be considered from some of the factors mentioned
above and also other factors which may crop up in peculiar case.
Alongwith that, the Court also should ignore the legal obligations of the
husband to earn and maintain the wife. It should not be forgotten that
there may be obligations of the husband to maintain other members of
his family, and the Court cannot overlook them even through they may
not be legal obligations. Court has also see whether the wife is earning
so that the husband may not be saddled with the expenses, and ultimately
the Court will pass the order considering all the aforesaid relevant
factors. For considering those factors, there cannot be any specific
formula which will be available in all cases, but each case will depend
on its particular set of circumstances. Therefore, this rule of thumb of
1/5 th cannot be applied in all cases and should not be encouraged also. 2
In another case even though, the wife claimed that the husband
had been getting a monthly salary of Rs. 7,000/-, there was no evidence
adduced in support of the claim. Appellant-husband produced a
certificate from the Company in which he is employed showing that his
normal monthly salary, including D.A. and allowance would come to
Rs. 3,062/-. It was also stated therein that in addition to the above he
earns production incentive which will very every month, depending upon
the production. He did not disclose as to how much he will be receiving
1 Dinesh Gijubhai Mehta vs. Usha Dinesh Mehta, AIR 1979 Bombay
173 (DB): 1978 UCR (Bom) 650: 1979 Mah LJ 367: 1979 Mat LR
209.
2 Ravi Parkash vs. Shakuntala Devi, II (1984) DMC 64 Delhi;
Dhirajben Prabhudas Parmar vs. Rameshchandra Shambhulal
Yadav, II (1983) DMC 56 Gujarat: AIR 1986 Guj 215: 1983 Guj LJ
455: 1983 (2) 24 Guh LR 860: (1983) Hindu LR 471.
as production incentive, even though, this was within his knowledge.

Under Section 36 of the Indian Divorce Act, alimony pendente lite
should not exceed 1/5 th of the husband’s average net income. Learned
Single Judge granted Rs. 770/- p.m. taking into consideration certain
amount which the husband would have received as production incentive
also. The view taken by the learned Single Judge was affirmed by
Division Bench. 1
One fourth of pay

In one case the husband was leading a fairly comfortable life. He
maintained a car and had a telephone. He paid Rs. 4,000/- towards the
rent alone which was disputed by the plaintiff. According to her he was
paying between Rs. 15,000/- and Rs. 20,000/- rent per month. The
defendant did not file lease deed despite opportunity was granted to him.
His share of rent of factory premises according to him was Rs. 2,000/-.
Two daughters of the second wife of the defendant/husband were
studying in private English medium Schools. The entire expenses were
also borne by the defendant/husband who was also maintaining his
parents. It was held that all the expenses cumulatively demonstrated that
the husband had fairly good income. It was held that the total income of
the defendant should be at least Rs. 30,000/- per month. In this view of
the matter, the wife was held entitled to a reasonable standard of living.
She was held entitled to Rs. 5,500/- per month towards maintenance and
Rs. 2,000/- per month towards her separate residence. The plaintiff was
thus held cumulatively entitled to Rs. 7,500/- per month from the date of
the institution of the suit. The defendant who had been paying
Rs. 2,000/- as interim maintenance per month to the plaintiff for some
time was held entitled to deduct from the total balance amount to be paid
to the plaintiff. It was held that there shall be an escalation clauses and
according to that the plaintiff shall be further entitled to 12% increase
after every three years towards the maintenance and separate residence
from the date of this order. 2
One third of pay

There is no fixed formula for allowing maintenance out of the
income of the husband to the wife. In some cases 1/3 rd of the income of
the income of the husband had been allowed as maintenance to the wife
and in some cases one-half of the income. The maintenance for the wife
is to be fixed keeping in view all the facts and circumstances, of each
1 Benny vs. Raichel Bindu, II (1999) DMC 464 Kerala.

2 Sushmita Ghosh vs. G.C. Ghosh, 1999(1) HLR 262 Delhi: 1999(1)
CCC 593 (Delhi): 1998(75) DLT 420: 1998(6) AD(Delhi) 91: 1998(4)
CLT 313: 1999(1) JCC(Delhi) 119.
Quantum of maintenance—One third of pay 293
case. In this case the wife had joined the profession of advocate.
Therefore taking into consideration that even after the marriage the wife
had started visiting High Court and that she may be earning some amount
in the profession and that she has also got about a sum of Rs. 300 per
month as interest. She had to maintain herself and the child and the
amount so earned was not considered sufficient for her maintenance. The
husband had sufficient regular income from his properties. He also had
some income from his profession although his standing was not much.
Taking his savings from the income from the properties at the minimum
at Rs. 3,000 per mensem and having no other liabilities, except as
discussed above, it was held to be fair if a sum of Rs. 1,500 per mensem
is fixed as maintenance to be paid by him to his wife during pendency of
the petition filed under Section 13 of the Hindu Marriage Act. 1
One third in many cases is a very useful starting point for the
court in deciding what would be the final figure. It is a useful proportion
to take and then adjust one way or another as the case demands. But it is
in no way a rule of law. It is an aid to the mental process when arriving
at the appropriate figure and there are many cases where the ‘one third’
figure would not enter the mind of the court, because it would be obvious
from the start that the proportion would be nothing like that. For
example, the young marriage that lasts but a day or two. It is an extreme
case but it is not unknown in this court. 2
It was observed in one case that the normal rule is of 1/3 rd of net
income may be granted as interim maintenance to the wife. In this case,
the husband very conveniently did not produce his pay slip. In the
revision application also, he did not disclosed what is his gross month
emolument. However, it was not in dispute that he was an employee of
the Water Supplies Board and is a sufficiently senior person. His pay
was stated to be Rs. 6,000/- p.m. The son was also employed and his
income is stated to be Rs. 7,000/- p.m. To controvert these figures, the
petitioners before High Court did not produce anything on record and as
such it was held that this amount had to be taken to be a net monthly
income. Going by the principle of 1/3 rd of net income, it was held that
Rs. 2,000/- was reasonable sum which has to be awarded to the wife as
interim maintenance. Further even if Rs. 500/- is deducted from this
amount, the amount comes to Rs. 1,500/- as the amount of interim
maintenance to be awarded to the wife. Even after taking into
consideration the amount of maintenance which she is getting under
Section 125, Criminal Procedure Code, this would be more than
1 Gurveen Kuar vs. Ranjit Singh Sandhu, I (1992) DMC 49 P&H.

2 Foley vs. Foley, (1981) 2 All ER 857: (1982) 1 DMC (BJ) 41.
Rs. 1,000/- p.m. and therefore it was held that no interference is called
for with the order of the Court to the extent it relates to the direction to
pay Rs. 1,000/- p.m. as interim maintenance. 1
In another case it was held that there is no good reason to
interfere with the finding of the court below that the evidence available
shows that the husband’s income would be Rs. 3,000/- per month and
even though the husband pays a sum of Rs. 1,200/- per month by way of
rent for the house in which he is presently living, out of the remaining
amount he can easily pay Rs. 1,000/- to the wife in as much as the
spouses were earlier living with all comforts. 2
In another case the salary of the husband was Rs. 1,066/- p.m.
and from this, he had to maintain himself, his parents, his second wife
and children. Bearing that in mind, the maintenance order was
marginally modified passed in favour of the applicants. In spite of that,
the husband was paying Rs. 310/- p.m. in all to the wife and considering
his total salary and his liabilities, it was held that the said modification
cannot be said to be incorrect and improper. 3
In view of the fact that the wife was given Rs. 500/- p.m. under
Section 125, Criminal Procedure Code and looking to the salary of the
husband amounting to Rs. 6000/- p.m. and that he was also earning
Rs. 2,000/- p.m. from letting out a portion of his house, the award of
Rs. 1,500/- in addition to Rs. 500/-, was held to be not excessive. 4
The Matrimonial Court, on appreciation of the evidence, came to
the conclusion that the husband had income from his handloom factory,
agriculture and also by way of interest on the principal amount of
Rs. 2,40,000/- which he got in family partition. His monthly income
from all the sources was assessed at Rs. 7500/- and on this basis, the
maintenance allowance for the wife and her two children was assessed at
Rs. 2225/- per mensem. It was held that there was no infirmity in the
order. 5
Rule as to one third of the income which is a rule of the thumb
can not be applied since in a case where the husband has relatively low
income but has substantial capital assets in the form of three bed-room
1 Merubhai Mandanbhai odedara vs. Raniben Merubhai Odedara,

I (2001) DMC 164 Gujarat.
2 Meera Nireshwalia vs. Nireshwalia, AIR 1994 Madras 168 (DB).
3 Sou. Leelavati vs. Nivrutti, 1999(1) HLR 559 Bombay.
4 Gandadhar Rai Jadhav vs. Asha Lata Ghatge, I (2000) DMC
199 MP.
5 Surinder Katyal vs. Vaneet Rani, I (1991) DMC 334 P&H.
Quantum of maintenance—One third or one fifth of income 295
flat, which was being occupied by the husband, his son by the previous
wife and the son’s family. Notionally the son would be required to
contribute for such occupation but then according to the husband the son
was maintaining the father. Therefore the rule of 1/3 rd was inapplicable
in such case. 1
He was getting a salary of Rs. 1016.35. The entire is to be
considered for, the purpose of maintenance. He has also admitted that
Shobha Kumari was continuously ill. He has also admitted that formerly.
She was also employed as a teacher in a school but at present she was
unemployed. Under the circumstances even if the wife has failed to
prove any other source of income for Narender Kumar, it was held that
that a maintenance allowance of Rs. 300/- per month is just and proper. 2
One third or one fifth of income

P.K. Bahri, J. 3 observed that “That maintenance allowance should
be usually granted to the extent of one-fifth of the salary to the wife”. It
is pertinent to note that the decision of Avadh Behari, J. 4 was not brought
to the notice of P.K. Bahri, J. In a reasoned judgment Avadh Behari, J.
has concluded that one-third of the salary which is being received by the
husband is the starting point. The amount of maintenance which may be
awarded can be more or less, depending upon the circumstances of each
case. There is no support for the conclusion arrived at by P.K. Bahari, J.
that the maintenance allowance which should be granted should be only
to the extent of one-fifth. There can be no mathematical basis in
calculating the amount of maintenance which should be allowed. What
has to be awarded must necessarily depend upon facts of each case. The
court has to take the totality of the circumstances into consideration and
then find a just and equitable solution to a very vexed problem. 5
Maintenance allowance pendente lite has to be decided on the
facts of each case. The Statute does not provide for allowing 1/5 th or
1/4 th or 1/3 rd of the income of the husband as maintenance allowance.
Ample discretion has been conferred on the Court. The Court has to
1 Dayaram T. Aswaney vs. Veenu, I (1985) 97 Bombay; Naresh

Kumari vs. Dharm Pal Gulati @ Neeru Gulati, II (1985) DMC 128
P&H; Dushiant Sabharwal vs. Santosh Gulati, I (1985) DMC 190
P&H; Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i:
1984 Marriage LJ 316: AIR 1984 Delhi 320; Kuldip Singh vs.
Satwant Kaur @ Kanwal Jit Kaur, I (1983) DMC 476 P&H.
2 Narendra Kumar vs. Shobha Kumari, II (1994) DMC 192 All.
3 order dated 28th October, 1987 in CR 1032/85 of Delhi High Court
4 in Devi Dutt Singh’s case reported at AIR 1984 Delhi 320
5 Promila Nangia vs. Baldev Raj Nangia, I (1989) DMC 547 Delhi.
strike a balance so that spouses can live with dignity according to the
social status. 1
There is no inflexible rule. There may be cases where more that
one-third is right. There are likely to be many others where less than
one-third is the only practicable solution. Cases show that “one-third
rule” as a flexible starting point is in general more likely to lead to the
correct final result than a starting point of equality, or a quarter. In any
calculation the court has to have a starting point. If it is not one-third,
should it be one half or one quarter ? One-third is a good and rational
starting point, remembering that it is not an inflexible rule but only a
starting point. Here the husband is earning for more than the wife. She
can only keep up the standard of living with his help. Inflation has
already values considerably. 2
In the light of all the circumstances of the particular case the
court has to arrive at a figure for the maintenance and support of the wife
which is reasonable having regard to the income of the parties. In all
these cases it is necessary at the end to view the situation broadly and
see if the proposals meet the justice of the case. Rough justice according
to common sense may be the best that the court can in many
cases achieve. 3
Persons of royal descent

Persons of Royal descent are entitled to maintenance
commensurate to their position and status. 4
Precedents
The decisions of courts can never be better than guidelines. They
are not precedents in the strict sense of the word. 5 There is no hard and
fast rule, and each case stands on its own merits. There is no fixed rule
and no certain proportion. The allowance is entirely in the discretion of
the court and, if the husband’s income is very large, the proportion, if the
court thinks that the appropriate approach in any given cause is to have
regard to a proportion, may be smaller whilst it may be necessary to
ignore all questions of proportion when the means are very small. The
overriding consideration is the actual needs of the parties pending
1 Raghubir Yadav vs. Purnima Kharga (Yadav), II (2001) DMC 79 MP.

2 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I: 1984
3 Dev Dutt Singh vs. Rajni Gandhi, ibid.
4 Bhanu Kumari vs. Prakaram Singh (Dr.) , 1991 (3) DL 311: 1991
(Supp) DRJ 213.
5 Martin v. Martin, (1977) 3 All ER 762 at p. 768 CA, relied
Quantum of maintenance—Principle for computation 297
proceedings. If there are children of the marriage their needs have also to
be provided. The principles enumerated in Section 25 are much wider
because they provide for a permanent alimony. Under Section 24 it is not
necessary to take a long term view. But the principles enumerated in
post-decree cases may be helpful. The matter is one of discretion. The
court has an unfettered discretion to award what sum it considers just. 1
Principle for computation

Maintenance depended ‘upon a gathering together of all the facts
of the situation, the amount of free estate, the past life of the married
parties and the families, a survey of the conditions and necessities and
rights of the members, on a reasonable view of change of circumstances
possibly required in the future, regard being, of course, had to the scale
and mode of living, and to the age, habits, wants and class of life of
the parties.’ 2
Sub-section (2) of Section 23 makes no departure from the
principles enunciated by the Board, except perhaps to a limited extent
envisaged in sub-clauses (d) and (e) of the said sub-section. It was held
that some of these deductions were not allowable for the purpose of
assessment of ‘free income’ as envisaged by the Judicial Committee.
Income-tax would certainly be deductible and so would contributions to
the provident fund which have to be made compulsorily. No deduction is
permissible for payment of house rent or electricity charges. The
expenses for maintaining the car for the purpose of husband’s practice as
a physician would be deductible only so for as allowed by the income-tax
authorities i.e. in case the authorities found that it was necessary for the
appellant to maintain a car. 3
In this case, the claim to maintenance was first laid by a lawyer’s
notice of 1951 but the suit was filed in 1954. The trial court decreed
maintenance from the date of the decree in 1957 but the High Court
thought fit to allow maintenance from the date of the institution of the
suit as the terminus a quo for the maintenance claimed by the
respondent. It was therefore held that the High Court very rightly fixed
2 Kulbhushan Kunwar vs. Raj Kumari, AIR 1971 SC 234: 971 All LJ
1047: 1970(3) SCC 129: 1971(2) SCR 672.
3 Kulbhushan Kunwar vs. Raj Kumari, ibid.
that sum making it subject to the limit of 25 per cent of the income as
found by the Income-tax authorities. 1
Proper proportion
What is a proper proportion of the husband’s income to be given
to the wife as maintenance pendente lite is a question to be determined in
the light of all the circumstances of a particular case; the very fixable
and wide ranging powers vested in the court make it possible to do
justice. It is the essence of such a discretionary situation that the court
should preserve, as far as it can, the utmost elasticity to deal with each
case on its own facts. It would be unfortunate if the wide powers of the
court are cut down by case law. Or put in a straight jacket or reduced of
cast-iron rules. 2
In Preeti Archana Sharma vs. Ravind Kumar Sharma, 3 it was
observed that “Section 24 uses the word “support” and does not uses the
word “standard” or “status”. Dissenting from this decision it was held
that the word “support” is of wide import. Support has to be according to
the standard of the parties. Maintenance has to be fixed according to the
standing of the parties, their wealth and the environment to which they in
their married state have been accustomed. 4
Maintenance depends upon a gathering together of all the facts of
the situation, the income of the parties, a survey the conditions and
necessities, regard being had to the scale and mode of living, and to the
age, habits wants and class of life of the parties. 5
Provisions for rent

If the wife continues to reside in the matrimonial home due
allowance will be made for that fact. In these days of housing shortage
many couples live under the same roof though their married life has been
disrupted. But where the husband asks the wife to leave his house and is
not prepared to give her shelter the court will make a suitable provision
1 Kulbhushan Kunwar vs. Raj Kumari, AIR 1971 SC 234: 971 All LJ
1047: 1970(3) SCC 129: 1971(2) SCR 672.
2 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I: 1984
3 AIR 1979 Allahabad 29.
4 Dev Dutt Singh vs. Rajni Gandhi, ibid.
5 Mt. Ekradeshwari vs. Homeshwar, AIR 1929 PC 128 approved in
Dr. Kulbushan Kunwar vs. Raj Kumari AIR 1971 SC 234 at 239.
Quantum of maintenance—Right of minors 299
for accommodation if the husband’s income is large enough for an

allowance to her on this score. 1
Requirement of other relatives

The quantum of maintenance is to be fixed on the basis of
requirements and needs of the non-applicant wife to maintain her
standard of living, which is neither luxurious nor penurious but is
consistent with the status of the family. It is to be determined after
taking into consideration the earnings of the husband and his
commitments to the family. 2
With respect of the commitments of husband, the trial Court in
one case was of the opinion that the he alone was not the only earning
member of the family; his mother was in service and the father was a
pensioner. The income of the parents must be just enough for their own
maintenance since they were living separately. Even though the three
younger brothers were living with him, it was held that it may be the
moral obligation upon him to educate and maintain them but such
commitments cannot be taken into consideration even though established
in the case. 3
Right of minors
In the wife’s application under Section 24 of the Hindu Marriage
Act, 1955, the provision for necessities of the minor children can also be
taken into account while fixing the quantum or rate of
According to the provisions of Section 20 of the Hindu Adoptions
& Maintenance Act, 1956, a Hindu a bound during his or her lifetime to
maintain his or her legitimate or illegitimate children and the obligation
continues so long as a child is a minor. The father, therefore, cannot
escape his liability to maintain his children and cannot legitimately
refuse to maintain them only on the ground that they are not under his
custody. The application moved by the wife for the claim of maintenance
is inclusive of what she is spending for the maintenance of the children.
Section 26 of the Act lays down that in any proceeding under the Act the
Court may from time to time pass such interim orders as it may deem just
and proper with respect to the custody, maintenance and education of
1 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984
2 Ramesh Narayan vs. Sau. Pratima, II (1985) DMC 97 Bombay.
3 Ramesh Narayan vs. Sau. Pratima, ibid.
4 Bibi Balbir Kaur Kathuria vs. Raghubir Singh Kathuria, AIR 1974
P&H 225.
minor children, consistently with their wishes, wherever possible.

Section 26, therefore, vests a discretion in the Court to make an order for
the maintenance pendente lite for the children. 1
Standard of living
The personal income of the wife will be taken into consideration
in fixing the quantum of maintenance; but then the standard of living of
the parties, their status, their background and their outlook in life have
got to be considered while fixing the maintenance. In other words, the
quantum of maintenance must be commensurate with the standard of
living which should be neither luxurious nor penurious. 2
Status
In one case the total salary of the husband was between
Rs. 1300/- and Rs. 400/-. Having regard to the status of the husband who
was serving as Assistant Engineer it was held necessary that the wife
should also live the life in the way that would be fit the status of the
husband. It was held that in these hard days of rising cost, at least an
amount of Rs. 450/- per month should be awarded to the petitioner-wife
so as to maintain herself with ordinary comforts which could be expected
of a wife of an Assistant Engineer serving with the Government.
Moreover, this amount would be only 1/3 rd of the total salary of the
husband, as was found by the learned Magistrate. 3
Working wife
Marital relationship and birth of child who are separate, are facts
which are to be noted. In one case Wife was a Post Graduate degree-
holder. Her husband was an officer in a Bank. Child was studying in
Nursery standard in the school where her mother was a teacher. In these
circumstances it was held this was sufficient to hold that the amount of
Rs. 400/- only would not be sufficient for their maintenance. It was
required to be supplemented. Source of supplementing this amount was
the income of the husband who was legally bound to maintain at least the
child even though the mother might not be entitled to maintenance
immediately. Clear materials were, not on record to come to the
conclusion as to the requirement of the wife and the child. In such
circumstanced, it was held ends of justice would be best served with the
direction that the opposite party shall open an account in any Bank where
the wife stays to commute the distance to School in the name of the child
1 Baboolal vs. Prem Lata, AIR 1974 Raj 93: 1974 Raj LW 56.
2 Saraswathi vs. Sivaswami, II (1987) DMC 5 Madras.
3 Chandrikaben Chhanalal Patel vs. Rameshchandra Chandilal
Patel, I (1986) DMC 232 Gujarat.
Quantum of maintenance—Working wife 301
with guardianship of mother and deposit Rs. 500/- (five hundred) each
month in such account till disposal of the application under Section 125
Criminal Procedure Code. Court could permit withdrawal of amounts
from out of the deposited amount as and when mother guardian applies
for such amount for proper maintenance of the child determining the
nature of necessity. 1
In fixing the quantum of maintenance, the living standard of the
parties and the income of the petitioner and the number of persons liable
to be maintained out of that income are to be considered. The assertion
of the wife in her application under Section 125 of the Code that the
husband gets a salary Rs. 1000/- per month gets has not been denied. It is
merely pleaded by the husband that the wife herself a salary of about
Rs. 200/- as a teacher under the Angabadi Scheme. The wife, in her
evidence, had stated that she was in fact serving as a teacher but she had
given up that job after serving for one year. Her father also deposed that
she gave up the job after serving for 7 months. Thus, it was found that
both the witnesses the unanimous that by 1987 when they were examined
the wife was not having any income. That husband did not deny such
evidence. The persons who were dependent on the income of the husband
are the husband himself and his two sons. Taking all these factors into
consideration and also the income of the O.P. the quantum of
maintenance was fixed at Rs. 200/- per months. 2
Relevant point as to the ability or otherwise of the wife to
maintain herself is the date when an order on the application under
Section 125 of the Code of Criminal Procedure is made, and not when
the application is filed, because in terms of Section 125, Criminal
Procedure Code any order regarding payment of maintenance is liable to
be changed in consequence of changed circumstance occurring
subsequent thereto. If the date of filing of the application could be the
only relevant point for deciding the question of inability or otherwise of
the applicant, there was no need to enact Section 127 of the Code that on
proof of change in the circumstance of any person receiving under
Section 125 a monthly allowance or ordered under the same to pay
monthly allowance to his wife, children, father or mother, as the case
may be, the Magistrate may make such alteration in the allowance as he
deems fit. Therefore, when from the evidence adduced on behalf of the
petitioner, it was fully established that the wife was not able to maintain
herself, whereas the opposite party had sufficient means and was still
neglecting to maintain her, it was held that even if it is found that the
1 Swasti Kar vs. Girija Shankar Kar, II (1992) DMC 425 Ori.
2 Anupama Pradhan vs. Sultan Pradhan, II (1991) DMC 618 Ori.
wife was earning Rs. 300/- per month as a teacher in a private school,
that amount cannot be considered to be sufficient to maintain her keeping
in view the soaring prices of the essential commodities these days. She
had claimed a sum of Rs. 1,000/- (Rupees one thousand) per month by
way of maintenance but under Section 125, Criminal Procedure Code the
amount of maintenance could not exceed Rs. 500/- (Rupees five
hundred). The opposite party, was drawing a net salary of Rs. 5,500/-.
Therefore, he was directed to pay a sum of Rs. 500/- (five hundred) only
out of that salary by way of maintenance. 1
1 Veena Devi vs. Ashok Kumar Mandal, I (2001) DMC 177 Patna.
Summery remedy—Working wife 303
Chapter 9
Summery remedy
SYNOPSIS
Introduction....................................304 Determination by civil court.......... 334
Object .............................................308 Determination of paternity ............ 334
Adultery ..........................................311 Disentitlement to avail remedy ...... 335
Affidavits ........................................311 Dismissal in default ....................... 335
Alternate remedy ............................312 Divorced wife ................................ 337
Arrears ...........................................313 Dropping of proceedings ............... 342
Amendment of complaint................314 Effect of Act of 1986 ...................... 343
Annulment of marriage ..................314 Effect of custody of children .......... 344
Application by lunatic ....................314 Effect of divorce............................. 344
Application of Civil Procedure Code Effect of Section 24 of Hindu Marriage
.......................................................316 Act.................................................. 345
Attachment of property ..................316 Effective date of modification ........ 346
Attachment of future salary ............317 Enforcement by imprisonment ....... 346
Burden of proof ..............................317 Enforcement of order..................... 348
Cancellation ...................................318 Ex parte order ............................... 350
Cancellation if necessary ...............319 Ex parte order & inherent powers. 352
Cancellation on the basis of divorce Finding of Civil Court ................... 353
deed ................................................321 Finding of Cruelty ......................... 354
Challenge to ex parte order ...........322 Formal application ........................ 355
Change in circumstances ...............322 Fraudulent marriage ..................... 356
Child...............................................322 Illegitimate marriage ..................... 356
Christian Marriage ........................323 Ingredients to be proved ................ 358
Compromise ...................................324 Interference in inherent powers..... 359
Co-habitation or Compromise between Interim maintenance ...................... 361
parties ............................................325 Interpretation................................. 361
Constitutional goal.........................326 Irregularity in recording evidence 361
Customary divorce .........................326 Justification to live separately ....... 361
Date for determining eligibility .....327 Legally wedded wife ...................... 363
Date from which payment is to be made Legitimacy of child ........................ 363
.......................................................328 Limitation ...................................... 365
Decree of civil court.......................331 Limitation for enforcement ............ 366
Decree of judicial separation.........331 Living in adultery .......................... 369
Defence ..........................................332 Living separately by mutual consent369
Delay in making claim ...................333 Locus standi of step mother ........... 370
Major-child ....................................370 Review and recall .......................... 394

Modification of order .....................371 Revision ......................................... 394
Modification in revision .................372 Right of children ............................ 394
Multiple applications .....................373 Satisfaction of ex-parte order ........ 395
Multiple orders...............................374 Scheme ........................................... 396
Necessity of proof of marriage .......374 Scope of jurisdiction ...................... 399
Non compliance .............................375 Scope of revision ........................... 400
Nullity Marriage ............................375 Second marriage of husband ......... 400
Offer of re-union ............................377 Second revision.............................. 403
Order without evidence ..................378 Sentence ......................................... 403
Paternity of child............................379 Separate living by agreement ........ 404
Payment of cost ..............................380 Service by post ............................... 404
Payment under personal law .........381 Service of process .......................... 405
Pecuniary jurisdiction ....................381 Service of summons on witnesses .. 407
Pleading .........................................382 Stay of order .................................. 408
Pleading of neglect ........................383 Stay of proceedings ....................... 408
Power to impose conditions ...........383 Subsequent events .......................... 409
Presumption of paternity................384 Sufficient income ........................... 409
Procedure of proceedings ..............384 Summoning of complainant ........... 409
Proceedings under old Code ..........385 Temporary arrangement................ 411
Proof of marriage ..........................386 Territorial Jurisdiction .................. 411
Proof of neglect ..............................387 Territorial Jurisdiction for attachment
Reconciliation ................................387 of salary ......................................... 414
Reconsideration .............................387 Time barred revision ..................... 414
Recording of evidence ....................388 Transfer of proceedings................. 415
Recovery and modification ............390 Void marriage................................ 415
Refusal co habit..............................391 Voidable marriage ......................... 415
Res judicata....................................392 Wife abandoning husband ............. 415
Restoration of ex parte order .........393
Introduction
Section 125 of Criminal Procedure Code, 1973 provides a
summery remedy that is aimed at preventing vagrancy and destitution.
This provision is as under:
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
Summery remedy—Introduction 305
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 is deemed not to have attained his
majority;
(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 for levying fines, and may sentence such person,
for the whole or any part of each month’s allowance remaining
unpaid after the execution of the warrant, to imprisonment for a
terms 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 or 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 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 allowance 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 reasons she refuses to live with her husband, or that

they living separately by mutual consent, the Magistrate shall
cancel the order.
The procedure for disposal of the petition under section 125 of
Criminal Procedure Code, 1973 has been laid down in section 126 which
is as under:
126. Procedure.— (1) Proceedings under Section 125 may be

taken against any person in any district—
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be,
with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the
presence of the person against whom an order for payment of
maintenance is proposed to be made, or, when his personal
attendance is dispensed with, in the presence of his pleader, and
shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against
whom an order for payment of maintenance is proposed to be
made is wilfully avoiding service, or wilfully neglecting to attend
the Court, the Magistrate may proceed to hear and determine the
case ex parte and any order so made may be set aside for good
cause shown on an application made within three months from the
date thereof subject to such terms including terms as to payment
of costs to the opposite party as the Magistrate may think just and
proper.
(3) The Court in dealing with application under Section 125 shall
have power to make such order as to costs as may be just.
The amount of maintenance fixed by the Magistrate under section
125 can be modified or varied. Section 127 provides in this respect.
Section 127 is as under:
127. Alteration in allowance.— (1) On proof of a change in the

circumstances of any person, receiving under Section 125 a
monthly allowance, or ordered under the same section to pay a
monthly allowance to his wife, child, father or mother, as the case
may, the Magistrate may make such alteration in the allowance as
he thinks fit:
Provided that if he increases the allowance, the monthly rate of
five hundred rupees in the whole shall not be exceed.
(2) Where it appears to the Magistrate that, in consequence of any
decision of a competent Civil Court, any order made under
Section 125 should be cancelled or varied, he shall cancel the
order or, as the case may be, vary the same accordingly.
Summery remedy—Object 307
(3) Where any order has been made under Section 125 in favour
of a woman who has been divorced by, or has obtained a divorce
from, her husband, the Magistrate shall, if he is satisfied that—
(a) the woman has, after the date of such divorce, remarried
cancel such order as from the date of her remarriage;
(b) the woman has been divorced by her husband and that she has
received, whether before or after the date of the said order, the
whole of the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce, cancel
such order,—
(i) in the case where such sum was paid before such order, from
the date on which order was made;
(ii) in any other case, from the date of expiry of the period, if
any, for which maintenance has been actually paid by the husband
to the woman;
(c) the woman has obtained a divorce from her husband and that
she had voluntarily surrendered her rights to maintenance after
her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any
maintenance or dowry by any person, to whom a monthly
allowance has been ordered to be paid under Section 125, the
Civil Court shall take into account the sum which has been paid
to, or recovered by, such person as monthly allowance in
pursuance of the said order.
The order of maintenance passed under section 125 of the Code
can be enforced in the manner provided in section 127 of the Code. This
section is as under:
128. Enforcement of order of maintenance.— A copy of the order

of maintenance shall be given without payment to the person in
whose favour it is made, or to his guardian, if any, or to the
person to whom the allowance is to be paid; and such order may
be enforced by any Magistrate in any place where the person
against whom it is made may be, on such Magistrate being
satisfied as to the identity of the parties and the non-payment of
the allowance due.
A conspectus of above provisions provides a comprehensive but
summary remedy for the classes of persons mentioned therein to seek
maintenance to the person entitled. Presently it provides a pecuniary
limit of Rs.500/- as the maximum amount which can be awarded but a
bill is pending in the parliament which if passed, would abolish this
limitation.
Object
The right of a wife for maintenance is an incidence of the status
or estate of matrimony; that according to the text of Hindu Law to which
the parties belong, the obligation to maintain the wife arises from the
very existence of the relationship between the parties and that apart from
the liability which the husband incurs under personal law or maintaining
his wife, the provisions of Section 125 Criminal Procedure Code
independently vest the statutory right in a wife to claim maintenance
from her husband. 1
A divorced wife, otherwise eligible, is entitled to the benefit of
maintenance allowance and the dissolution of the marriage makes no
difference to this right under Section 125(1), Criminal Procedure Code. 2
It is one of the fundamental duties of every citizen of country to
uphold and protect the sovereignty, unity and integrity of India, to
promote common brotherhood and preserve the rich heritage of our
culture and to strive towards excellence in all sphere of individual and
collective activity. It therefore, follow that how can one be expected to
strive towards excellence in case he fails to maintain his wife & child.
Strictly speaking the right of the wife, child and parents for maintenance
is a distinct statutory right recognised by the Legislature. 3
Section 125 is designed to prevent vagrancy and destitution and
provide a summary and speedy remedy to get maintenance. Thus it has a
social purpose to fulfil and in arriving at any finding in relation to an
application there under, the Court must look to the substance rather than
to the form, must avoid strict technicalities of pleading and proof and
must make a realistic approach to the material on record so that the
purpose aforesaid is not frustrated. 4
The object of a proceeding under Section 125, Criminal
Procedure Code is not to punish the husband or the father, as the case
may be, for his wilful neglect, but in intended to prevent vagrancy by
compelling him to maintain his wife and minor daughter, who are unable
to maintain themselves. The Section was introduced in the Criminal
Procedure Code as a quick and effective remedy and obviously as a
welfare measure with a social purpose behind it which cannot be
overlooked by Courts on a hyper technical legal ground, especially when
1 Saraswati Meher v. Jadumani Mehar, 62 (1986) CLT 92.

2 Bai Tahira v. Ali Hussain Fissali Chothia, AIR 1979 SC 362.
3 Alimun Nisa vs. State of U.P., II (1987) DMC 195 All.
4 Aruna Kar vs. Sarat Kumar Dash @ Sachhi, II (1995) DMC 244
Orissa.
Summery remedy—Object 309
the section itself does not prohibit such a course. Liberal interpretation is
bound to be adopted. 1
In Pandurang Baburao vs. Baburao Bhaurao. 2 it was contended
by the son, that the obligation of a son to maintain his father is preceded
by the fulfilment of the parental obligation to maintain and bring up the
children during the childhood of the children. If the father fails to carry
out this obligation, then he is not entitled to claim any maintenance even
from his son under Section 125 of the Criminal Procedure Code. While
negativing this contention, the Division Bench of this Court had an
occasion to consider the true scope of Section 125(1) of the Code. The
Division Bench has observed in this context in para 9 of the judgment
as under:—
“The provision in Section 125(1) is a very special provision
enabling the Magistrate to make an order against a son or
daughter for payment of a monthly allowance for the maintenance
of the father or mother who is unable to maintain himself or
herself. The provision in Section 125 is one of general
application and is not related to the personal law of the parties.
Implicit in the provision, therefore, is the statutory recognition of
the obligation that a son who has sufficient means is bound to
maintain a father or mother who is unable to maintain himself of
herself. The provision is really in the nature of an ameliorative
provision made for the first time recognizing the right of infirm
parents who are unable to maintain themselves to be maintained
by their son or daughter who is possessed of sufficient means as
also providing a remedy to enforce that right. It may be noted that
the corresponding provisions in Section 488 of Cr.P.C. 1898, did
not make any provision with regard to providing maintenance to
parents.”
The liability to maintain close relatives who are indigent is founded upon
the individual’s obligation to the society to prevent vagrancy and destitution.
That is the moral edict of law and morality cannot be clubbed with religion or
personal law. Thus, the provisions of Section 125 are truly secular in character.
To say the least, it may be described as a step towards the common Civil Code
within the contemplation of Article 44 of the Constitution, though in a limited
sense. The maintenance of close relatives who are indigent so as to prevent
vagrancy and destitution is not dependent upon the personal law of the parties,
but is founded upon the individual’s obligation to the society.3

2 1980 Cr LJ 256.
3 Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai, II (1986) DMC
370 Bombay’ Chirukandoth Poujil Leela vs. Mambally Bhaskaran, I
(1985) DMC 425 Madras; Hem Chandra Shridhar vs. Hemangi
In the summary inquiry under Chapter IX of the Code entitled

‘Order for maintenance of wives, children and parents’ technicalities of
all sorts have to be eschewed and a just conclusion has to be reached.
The proceedings under the chapter do not faintly determine the status and
the rights of the parties. They have the object of providing speedy relief
to prevent vagrancy. 1
However no wife shall be entitled to receive maintenance from
her husband under Section 125, Criminal Procedure Code, if she refuse
to live with her husband without any sufficient reason which principle is
incorporated in Sub-section (4) of Section 125. When the specific
question that arises for consideration is whether the wife’s claim for
maintenance is to be rejected summarily since similar plea made by her
in the Civil Court has been rejected and since her husband’s plea that she
deserted him has been accepted by the Civil Court, it was held that it is
an accepted principle that the finding of the Civil Court in a matrimonial
proceeding is binding on the Criminal Court and the Criminal Court is
not entitled to question the correctness of validity of the Civil
Courts’ decision. 2
The proceedings under Section 125 are summary in nature and
they are not equal to civil suit for maintenance. The order under this
Section is just a temporary and tentative order subject of course to the
final determination of the rights of the parties by Civil Court. Further
this order is subject to the change of the circumstances pointed out under
Section 127. 3
In regard to the provisions of the old Code it was held that the
sections 488, 489 and 490 constitute one family. They have been grouped
together in Chapter XXXVI of the Code of 1898 under the caption "Of
the maintenance of wives and children". This chapter, in the words of Sir
James Fitzstephen provides "a mode of preventing vagrancy, or at least
of preventing its consequences". These provisions are intended to fulfil a
social purpose. Their object is to compel a man to perform the moral
Hemchandra Nair, I (1983) DMC 1 Bombay; Shrichand vs. IV

Additional Dist Judge, Allahabad, Santosh Kumari, I (1986) DMC
91 All.
1 Babu Lal vs. Munnibai, I (1987) DMC 101 MP.
2 See (1989) 3 OCR 142, Purna Chandra Digal v. Sila Digal @ Tube
Digal and Another; (1990) 3 OCR 344, Sri Ram Prasannd Das v.
Bhabani Devi; 72 (1991) CLT 104; Neheru Bag v. Tapaswaini Bag
and Another; 1981 Cri.LJ. 1467, Taja Singh v. Smt. Chhot; 1988(2)
Crimes 599, Hari Kishan v. Smt Shanti Devi; Jasholal Agarwala @
Jain vs. Puspabati Agarwala, II (1994) DMC 169 Orissa.
3 Alimun Nisa vs. State of U.P., II (1987) DMC 195 All.
Summery remedy—Affidavits 311
obligation which he owes to society in respect of his wife and children.

By providing a simple, speedy but limited relief, they seek to ensure that
the neglected wife and children are not left beggared and destituted on
the scrapheap of society and thereby driven to a life of vagrancy,
immorality and crime for their subsistence. Thus, S. 488 is not intended
to provide for a full and final determination of the status and personal
rights of the parties. The jurisdiction conferred by the section on the
Magistrate is more in the nature of a preventive rather than a remedial
jurisdiction; it is certainly not punitive. As pointed out in Thompson's
case 6 NWP 205 the scope of the 'Chapter XXXVI is limited and the
Magistrate cannot, except as thereunder provided, usurp the jurisdiction
in matrimonial disputes possessed by the Civil Courts. Sub-sec. (2) of S.
489 expressly makes orders passed under Chapter XXXVI of the Code
subject to any final adjudication that may be made by a civil Court
between the parties regarding their status and civil rights. 1
Adultery
In one case the wife was found to be not a reliable witness. There
was medical evidence as to her having become pregnant. Her case was
not of pregnancy by the applicant or even of a solitary lapse on her part
resulting in pregnancy. On a cumulative consideration the totality of the
facts and the circumstances of the case, it was held that that the material
placed by the husband was sufficient for the conclusion in the summary
inquiry that the wife was living in adultery so as to entitle him to an
order cancelling the earlier order under Section 125(1) of the Code
passed against him for asking a monthly allowance for the maintenance
to her. 2
Sub section (4) does not apply to divorced wife therefore there
can be no question of her living in adultery or refusing to live with
husband without sufficient cause. 3
Affidavits
Affidavits can be admitted in evidence if they are properly sworn,
and, while appreciating the evidence, the Magistrate applies his judicial
mind to affidavits along with other documentary or other evidence. In
this case, the Magistrate had discussed the documentary evidence and the
affidavits. It was held that the Magistrate can determine the evidentiary
value of the affidavits even by assigning common ground. All that is
1 Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 at 486: AIR
1975 SC 83 at p. 85.
2 Babu Lal vs. Munnibai, I (1987) DMC 101 MP.
3 Vanamala vs. H.M. Ranganatha Bhatta, 1995 (5) SCC 299
necessary is that order passed by the Magistrate should show that he has
brought his judicial mind to hear upon the content of the affidavits. 1
Alternate remedy
Section 488 in Old Cr.P.C was already there and was in force
when Hindu Adoptions & Maintenance Act, 1956 was enacted and
brought in to force. Similarly, it is also to be noted that even in the year
1973 when old Cr.P.C. was amended, the provision under Section 488
were retained in the Cr.P.C. by way of Section 125, and at that time, the
Hindu Adoptions & Maintenance Act, 1956 was already there. Thus, it is
clear that the remedies under both these laws are available to the wife
and these remedies are coexistent, mutually complementary,
supplementary and in aid and addition of each other. Hence the remedy
resorted to under either of two cannot foreclose the remedy under other
Act. The very fact that despite the provisions for maintenance of wife
being there under the Cr.P.C., while enacting the Hindu Adoptions &
Maintenance Act, 1956 through Section 18 thereunder, the specific
provision was made for maintenance of wife, goes to show that Section
18 is a specific provision with regard to the maintenance of wife in this
special enactment as compared to the provision in the Cr.P.C. with
regard to the wives, children and parents and that the provisions under
the Cr.P.C. have to be read only in aid and addition to the specific right
conferred with regard to the maintenance of wife under Section 18 of the
Hindu Adoptions & Maintenance Act, 1956 and not in derogation or
denial thereof. The concept of maintenance to the wife is based on the
matrimonial tie and obligation the husband to maintain his wife during
his life time. This moral and social obligation has been incorporated as a
legal liability in the Act because according to our social values, a non-
earning wife without any means is considered to be dependent on the
husband and the question of her maintenance consequential to the
dependence cannot be left at the sweet will of the husband. 2
Apart from the ground of inability of the wife to maintain herself,
in case a husband with sufficient means neglect or refuses to maintain
her as contemplated under Section 488/125 of old/new Cr.P.C., under
Section 18 of the Hindu Adoptions & Maintenance Act, 1956, a Hindu
wife is entitled to live separately from her husband without foregoing her
claim for maintenance on grounds enumerated under Section 18(2). Such
grounds include desertion or abandonment by the husband without
reasonable cause, cruelty, suffering of the husband from a virulent form
of leprosy, in case the husband has any other wife living or keeps a
1 Husnain vs. State of U.P., I (1985) DMC 160 All.

2 Aher Mensi Ramsi vs. Aherani Bai Mini Jetha, AIR 2001 Guj 148.
Summery remedy—Amendment of complaint 313
concubine or ceased to be a Hindu by conversion or any other cause

justifying her living separately. Thus, the provisions of Section 18 are
far wider as compared to the provisions of Section 488/125 of the
Cr.P.C. old and new. It is, therefore, clear that any order of maintenance
under Section 488/125 of Cr.P.C. old and new cannot foreclose the
wife’s remedy under Section 18(2) of the Hindu Adoptions &
Maintenance Act, 1956 and vice versa. These provisions do reflect the
compassion of Law for Women and for their protection in conformity
with the concept of reasonable classification against discrimination as
provided in Art. 15(3) of the Constitution of India which makes it
permissible for State to make special provisions for women. 1
The scope of the two inquiries under section 24 of Hindu
Marriage Act, 1955 and section 125 of Criminal Procedure Code, 1973 is
entirely different. The grant of maintenance pendente lite under Section
24 of the Hindu Marriage Act cannot possibly thwart the claim of the
wife under Section 125 of the Code of Criminal Procedure, which settles
the matter finally. 2
Arrears
Court has not taken care of complying with the proviso to Sub-
section (3) of Section 125, Criminal Procedure Code. According to the
proviso no arrears beyond a period of twelve months from the date it
falls due can be recovered. As a matter of fact an application for the
recovery of arrears of maintenance amount beyond one year is barred by
the proviso. 3
In one case it was directed that the husband shall pay to the wife
maintenance allowance of Rs. 1,500/- (fifteen hundred) per month
payable from the date of filing of the application under Section 125,
Criminal Procedure Code before the learned Magistrate the first of such
monthly payment to be made within the 15 th of April and thereafter
within the 15 th of each succeeding month, month by month. In regard to
arrears it was directed that the petitioner shall also pay monthly
instalment of Rs. 1,000/- per month for the arrears of maintenance
alongwith the current maintenance allowance till the entire arrear of
maintenance is liquidated. 4
1 Aher Mensi Ramsi vs. Aherani Bai Mini Jetha, AIR 2001 Guj 148.
2 Devinder Kumar vs. Asha Rani. II (1988) DMC 165 P&H.
3 Ganga Prasad vs. Gomti, I (2001) DMC 241 All.
4 Narayan Ch. Das vs. Madhabi Das, II (1999) DMC 131 Cacutta.
Amendment of complaint
In one case the trial Magistrate while granting amendment
application has observed the since the fact of second marriage of the
husband with second wife came to her knowledge after the filing of the
Application, the first wife was justified in making an application for
amendment and taking up the new ground of second marriage. The trial
Magistrate also permitted the wife to amend his written statement so that
no prejudice would be caused to him. It was held that it would be too
technical to direct the wife to file another application taking up this
ground separately and then go for trial in these applications. This would
lead to multiplicity of proceedings. Therefore the amendment was held to
be rightly allowed. 1
Annulment of marriage
The right of the wife to maintenance depends upon the
continuance of her marriage status and once the status of husband and
wife is declared to be null and void, the effect would be the same as in
the case of void marriage under Section 11 of the Act. The legislature
has given the benefit of the provisions of Section 125 Cr. P.C. to a
divorced woman as long as she did not remarry by including Clause (b)
of the Explanation, but, not such provision has been brought in so as to
apply in the case where the marriage is declared null and void. The
legislature decided to bestow the benefit of the section on a illegitimate
child by express words, but, none are found to apply to a de facto wife
where the marriage is void, ab initio or voidable and declared void by a
decree of nullity. The benefit of maintenance under Sub-section (1)(a) is
available only if the applicant is the wife of the person concerned.
Therefore, the distinction drawn by the learned Magistrate that the
marriage in a particular case being voidable, the wife was entitled to get
the maintenance even after the decree of nullity is wholly erroneous in
law. He should have given the effect to the decision of the Civil Court
and on the basis of that, the proper course was to cancel the order
of maintenance. 2
Application by lunatic
Chapter IX of the Criminal Procedure Code deals with an order
for maintenance of wives, children and parents. The provisions contained
in Section 125 to 128 of the Criminal Procedure Code the self contained
Code as far as the proceedings for maintenance are concerned. There is
1 Jaiprakash Sumantro Kale vs. Chandrakala Jayprakash Kale, II

(1984) DMC 233.
2 Madan vs. State of Rajasthan, I (1993) DMC 71 Raj.
Summery remedy—Application by lunatic 315
nothing in Section 125 or 126 of the Code to show that the application on
behalf of the lunatic, cannot be filed by next friend or by a guardian of a
lunatic. The underlying object of the provisions regarding maintenance is
to prevent vagrancy by compelling a person to support his wife or father
or mother unable to support herself/itself. The object is to device the
speedy summary remedy so that an adequate provision is made for
supply of food, clothing and shelter to a deserted wife, or children who
are not taken care of. That is the reason why Section 125 of the Code
empowers the Magistrate to grant maintenance upon proof of neglect or
refusal to maintain. The only requirement is that the Magistrate
concerned should be satisfied about the neglect or refusal to provide
maintenance by the person who is liable to provide for the maintenance
of the wife, children or parent. In fact, in Section 125 of the Code,
nowhere it is provided that an application is necessary. Even without a
formal application, if the learned Magistrate is satisfied that there was
neglect or refusal on the part of the person to provide for the
maintenance, he would be in a position to direct the payment of
maintenance. Of course, before passing such an order he will have to
follow the necessary procedure. 1
The provisions of Section 125(1)(c) indicates that an application
on behalf of lunatic is maintenance. Section 125(1)(c) of the Code reads
as under:—
“125(1) if any person having sufficient means neglects or refuses
to maintain
xx xx xx xx
(c) his legitimate or illegitimate child (not being married
daughter) who has attained majority, where such child is,
by reason of any physical or mental abnormally or injury
unable to maintain to maintain itself”.
If an application can be filed by and/or on behalf of a child who
has not attained majority or who is physically or mentally abnormal
child, why such an application cannot be filed for and on behalf of wife
who is mentally incapable to initiate and/or conduct the maintenance
proceeding. Similar will be the position with regard to parents entitled to
claim maintenance. This is no reason to hold that an application filed by
next friends on a guardian is not maintainable. If this logic is applied,
the application filed by any person who is clever and shrewd can never
be entertained. A clear and shrewd person is likely to present facts so as
1 Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai,

to suit himself/herself. When the evidence is given by such a person it

will always be difficult to find out the truth. Simply because it is
difficult to find out the truth, it can never be said that the application
filed by such a person is not maintainable. It is only when the task is
difficult, the common sense coupled with judicial acumen and experience
of life should be called to aid and the problem posed before the Court
should be resolved. The Court cannot shelve the problem because it
appears to be intractable or difficult to be resolved. If an application can
be filed by a next friend or a guardian of a minor, similarly such an
application can also be filed by a next friend or a guardian of a lunatic. 1
Section 125 Criminal Procedure Code does not contain any bar
which would prohibit the father and then custodian of his mentally
deranged daughter, who became so incapacitated, because of the cruelty
inflicted by her husband, to move the Court of the first instance pleading
for a maintenance allowance for his daughter and grand-daughter. When
even in the petition for maintenance, it has been specifically mentioned
that the father was initiating action as next friends and guardian of his
incapacitated daughter and his minor grand-daughter and there was no
dispute by the husband about the incapacity of his wife due to mental
derangement, the application was held to be maintainable. 2
Application of Civil Procedure Code

The proceedings are not civil proceedings so as to attract the
provisions contained in the Code of Civil Procedure. It was, therefore,
held that the provisions contained in Order 1, Rule 10 of the Code of
Civil Procedure that relate to impleading of parties to a civil suit cannot
apply to an application filed under Section 125 of the Code. 3 However in
regard to a petition on behalf of lunatic through next friend it has been
held that it is required to keep in mind the principles underlying the
relevant provisions of the Civil Procedure Code. 4
Section 421(2), Criminal Procedure Code speaks of summary
determination of any claim made by any person other than the defaulter
in respect of any property attached in execution of such warrant. This is
procedure for determining the claim of the third party. The Magistrate

3 Muniswamappa vs. Nagamma, II (1987) DMC 261 Karnataka.
Summery remedy—Burden of proof 317
proceeded to summarily determine the claim and hence accepted the

affidavits in evidence. It was held that there was no impropriety or
illegality therein. If he was aggrieved by summary determination of his
claim, he could very well go to civil court for the determination of his
rights and claim. 1
Attachment of future salary

In one case the warrants were issued by the Magistrate for certain
periods for attachment of salary when due found in the office of the
petition after it had been withdrawn from the Government Treasury.
These warrant could, by no means, be called affecting the attachment of
future salary. It is precisely for this reason that Section 466 of the Code
regarding objections to writs of attachment is brought in. For in cannot
be forgotten that Section 125 Criminal Procedure Code, provides a
summary remedy to the wife or a child to claim maintenance for herself
in a standard of living which is neither luxurious nor penurious but is
moderately consistent with the status of the family. No technical
impediment in that direction, as is the mandate of the Code, can be
allowed to frustrate that object or to elongate the process
or proceedings. 2
Burden of proof
The burden of the proving all requirements of Section 125
Criminal Procedure Code being on the applicant, she will have to
establish the same by leading acceptable evidence in that behalf. 3
It was held that it within their special knowledge as to what she is
earning from this machine since she is possessed of it. She has not
adduced any evidence whatsoever. When she filed application under
Section 125 Criminal Procedure Code. It was her burden to discharge by
showing that she is not able to maintain herself. She does not discharge
this burden, especially after having got the machine. It was necessary for
her to have made a statement or adduced evidence to show as to how
much work she is taking from this machine and what it is fetching to, her
and also to show that after paying instalment and interest, if any, what
still is left with her for her maintenance. It was found there was nothing
on record to show as to since when she is possessed of this machine and
how much money she has already earned. Under these circumstances, she
1 Husnain vs. State of U.P., I (1985) DMC 160 All.

2 Madhav Kumar Anand vs. Sudesh Kumar, Advocate, II (1984) DMC
45 P&H.
3 Nasreen Siddigui vs. Syed Mohd. Fazil, II (1991) DMC 139 MP.
was held not entitled to any maintenance because she had failed to prove
that she is unable to maintain herself. 1
The proceedings under Section 125 of the Code for maintenance
are not essentially criminal proceedings and he standard of proof
required to prove the guilt of the accused in criminal cases cannot be
applied to a petition under Section 125 of the Code for maintenance. It
was held that for want of correct approach for appreciating the evidence
in proceeding under section 125 of the Code, the learned Magistrate fell
into error and it has resulted into wrong appreciation of evidence and
consequently resulted in flagrant miscarriage of justice. Therefore it was
held learned Session Judge considered the evidence on record in the
proper perspective and reached to a different conclusion, which was
necessary for doing justice to a lady who was driven away by the
husband after giving her ill-treatment. Consequently, it was held that
there was no legal infirmity in the approach and also in the finding
reached by the learned Session Judge. 2
marriage came into existence as essential rites were not performed. Strict
proof of performance of essential rites is not required. 3
Cancellation
The first three sub-sections of Section 127 deal with
circumstances under which the Magistrate could bring about with
alteration in, cancellation of or variation in the order under Section 125,
Sub-section (1) deals with alternation in the allowances as the Magistrate
thinks fit, on proof of a change in the circumstances of any person
receiving, or ordered to pay monthly allowance. It was held that under
this provision, an order directing payment of maintenance could even set
be at naught, on proof of change in the relevant circumstance. The
expression “alteration” used in sub-section (1) would contemplate such
an order also. 4
1 Meera Devi vs.Chandraher Vishwakarma, II (1988) DMC 533 All.

2 Shivaji vs. Radhabai, I (1985) DMC 155 Bombay: Balkirshna
Jagannath Mangsule vs. Kalpana & State., II (1984) DMC 257
Bombay: Padminibai @ Panabai vs. Sambaji Dhondiram Bhosle,
4 Mambakkattua Manu vs. Mambakkattu Vasantha, I (1984) DMC
425 Kerala.
Summery remedy—Cancellation if necessary 319
Cancellation if necessary
The Magistrate having jurisdiction, can cancel the order of
maintenance only if his wife in whose favour the maintenance has been
granted is living in adultery or without sufficient cause refused to live
with her husband or if the parties are living separately by mutual
consent. In view of the case in hand, it was held that if the facts are
tested, no such order has been passed by the trial magistrate, nor the
petitioner has invoked the provisions of Clauses (5) of Section 488
quoted above. The order of want for cancellation under the above
provision remains in tact and no other provision can be applied to the
execution proceedings because the order has not been cancelled in this
case. The husband cannot take the plea that the parties have reunited and
resumed cohabitation as a consequence birth of a child took place cannot
be a valid defence available in the execution proceeding for the mere fact
that the husband has to take recourse to Clauses (5) of Section 488
Cr.P.C. It is immaterial that the parties reunited after the maintenance
order was passed which appears a temporary phase as the relations of the
parties got strained again, the wife took recourse to file execution
application for recovery of arrears of maintenance. 1
The proceedings under the Hindu Marriage Act are quite
independent inasmuch as the interim maintenance granted under Section
24 of the Hindu Marriage Act is only for a temporary period during the
pendency of the proceedings before the Matrimonial Court, whereas the
amount awarded by the Judicial Magistrate under Section 125 is not for a
limited period, but is for period during which the wife and another
dependants of the husband are neglected. It is only after final verdict of
the Civil Court, declaring of their respective rights, the husband may
approach the Criminal court to cancel or vary the order of maintenance. 2
The proceedings under Section 24 of the Hindu Marriage Act and
under Section 125 Cr.P.C. are different and that they are invoked for
different purpose before the courts of competent jurisdiction. They do
not overlap over the other. The proceedings under Section 24 of the
Hindu Marriage Act are only invoked to meet a special situation where
the proceedings are pending before the Matrimonial Court and to
withstand the litigation the uncared wife is provided with succour
(maintenance) pendente lite. The benefit granted under Section 24 is
purely temporary in nature and gets extinguished after the matter is
finally decided. It is only after the rights of the parties are finally
1 Ram Lal vs. Kiran Bala, II (1985) DMC 232 J&K.

2 T. Rajender Singh vs. Maya Devi @ Gayatri, Hyderabad, 1996(2)
CCC 318 (AP).
decided, the party seeking cancellation or variation can approach the

criminal court under Section 126 of the Cr.P.C. 1
Following observations may also be seen in regard to
considerations for cancellation:
‘Assuming that the petitioner’s income has gone down in the
meantime, still it will be appropriate that he pays certain amount
to his wife towards maintenance. I am unable to find any fault
with the impugned order on this account. The petitioner has
produced a certificate from the said Phosphate Company Limited
purporting to show that after deduction of provident fund and
pension scheme, his salary received from the Company for one
year was Rs.34,755/–. Assuming that salary is as low as reflected
in the said certificate and accepting the fact that both petitioner
as well as the respondent who are living alone, but one fact that
cannot be lost sight of the fact that she is meeting all the parental
obligations towards the daughters. In that view and in view of
other facts noticed above, it will be desirable and appropriate that
the petitioner should pay a certain part out of his income to her. I
consider that taking an over all view of the circumstances brought
on record, it will be fair if the petitioner pays to the respondent,
from the date of her superannuation, maintenance at the rate of
Rs.700/- p.m. Ordered accordingly. The respondent is given
liberty to move for enhancement of this maintenance in case there
is any evidence of the increase in petitioner’s income.’ 2
The order of cancellation under Sub-section (2) of the Section
127 Criminal Procedure Code, 1973 is normally effective prospectively.
The language of Sub-section (2) of Section 127 empowers the Magistrate
to cancel or vary the order according to the decision of the competent
Civil Court and till then the order passed by him remains effective. So
far the language used in the provision, it may be stated that the order that
may be passed under Sub-section (2) of Section 127 shall be prospective
in operation. 3
If it is a disqualification for maintenance it could be properly
urged that the date on which this disqualification is found to have been
incurred should be the date from which the cancellation should operate.
In other words the Magistrate who cancels the maintenance should
mention the date the date from which it should operate: otherwise it
1 T. Rajender Singh vs. Maya Devi @ Gayatri, Hyderabad, 1996(2)

CCC 318 (AP).
2 Devinder Nath Sondhi vs. Raj Sondhi, 1997 (1) AD 81 (Del): 1997
(1) DMC 298: 1996 (39) DRJ 639: 1997 JCC 96.
3 Madan vs. State of Rajasthan, I (1993) DMC 71 Raj; Harikishan vs.
Shanti Devi, I (1989) DMC 29 Raj.
Summery remedy—Challenge to ex parte order 321
would be the date of the cancellation itself. There may be cases in which
the husband is satisfied that the wife may live separately; but after the
order for maintenance is made he offers to take her back. In such a
situation it would be obviously unjust to cancel the grant of maintenance
with effect from the date of the original order. 1
Cancellation on the basis of divorce deed

Under Section 127(3)(c) of the Code of the Magistrate is
empowered to cancel the order of maintenance passed under Section 125
if he is satisfied that—
(1) the woman had obtained divorce from her husband and
(2) she had voluntarily surrendered her right to maintenance after
her divorce.
In this case the alleged divorced deed was produced on record. It
was held that looking to the tenor of the said deed it cannot be said that
the wife had obtained divorce from the husband. It only provided that
both the parties to the deed willingly and with free consent took the
divorce from each other. The wife had not taken any part at the time of
execution of divorce deed. It was her husband who had obtained divorce
from the petitioner/wife even if it is assumed that the alleged divorce
deed is signed by the petitioner/wife voluntarily because in the summery
proceedings it was not necessary to decide whether the said divorce deed
is voluntarily and willingly signed by the wife. It was not alleged that the
wife obtained divorce because she wanted to remarry. Therefore it was
held that once it is held that the petitioner wife had not obtained divorce
from her husband then she is entitled to have maintenance and provisions
of Section 127(3)(c) would not be applicable. 2
It was further held in this case that it cannot be said that there
was any reason for the wife to surrender her right to maintenance under
Section 125 of the Code. When it was clear that the wife had not engaged
any advocate or had taken any legal advice and it was an admitted
position that the husband had not paid any lump sum amount for the
maintenance of wife, it was held that it would be difficult to gulp down
the contention of the husband that the wife had willingly voluntarily
surrendered her right to maintenance under Section 125 of the Code. 3
1 Sadashiv Nathu vs. Parubai W/o Sadashiv, AIR 1967 MP 85: 1966
Jab LJ 658: 1966 MPLJ 1065: 1967 Cri LJ 379.
2 Sitaben vs. Rameshbhai Maganbhai Parmar, II (1985) DMC 147
Gujarat.
3 Sitaben vs. Rameshbhai Maganbhai Parmar, ibid.
Challenge to ex parte order

The existence of a remedy under proviso (2) Section 126
Criminal Procedure Code to have the ex parte order set aside by showing
good cause, does not preclude the respondent from challenging it in a
revision under Section 397 of the Code, the legality of the order setting
him ex parte. The scope of scrutiny in the two proceedings however,
would be different. While an application under Section 126 (2) proviso
the Court is to find out, on the oral and documentary evidence adduced
for the purpose, if the respondent has shown good cause for his inability
to receive service of his failure to attend Court, in a revision under
Section 397, the Court’s scrutiny is limited to the regularity of the
proceeding and the correctness legality and property of the order and the
respondent cannot offer to show good cause, which he could do only
under Section 126. 1
Change in circumstances
It is the duty of the Court to see that the amount of maintenance
is not only the same in nominal terms but remains the same in real terms.
In the case of salaried people, the restoration of the salary to the real
terms is achieved by way of grant of dearness allowance. Enhancement
of maintenance on account of rise of cost of living index would serve the
same purpose and does not bring about any modification of the real
amount and does not require any special change in the circumstances of
the person. The simple fact that the nominal amount does not represent
the same real amount as granted, is a sufficient change in
the circumstances. 2
Child
The fact that such an interpretation would be expedient and
convenient is not always a sure guide, as the legislature, if necessary,
can intervene to fill up any lacuna. In this view it was held that the
expression “child” in Section 488 Crl. P.C. while it postulates the
immediate relationship of the claimant for maintenance with the person
who is called upon to pay maintenance by the closely following neutral
pronoun “itself” signifies and emphasizes the infancy of the claimant.
The inability to maintain “itself” is related to infancy. The expression
“child” of course cannot be confined to a child of tender years, a person
below 14 or 16, as has been contended for in some cases, since in that
case there can be no doubt about its inability to maintain itself. The
question of ability to maintain one-self can arise only in the case of
1 A. Simon vs. Venkatammal, II (1991) DMC 66 Mad.

2 Subbayal vs. Muhuswamy, II (1986) DMC 63 Madras.
Summery remedy—Christian Marriage 323
young persons during adolescence. The meaning of the word ‘child’ in

Section 488 must be taken to be a minor whether under the Indian
Majority Act or the Court of Wards Act or the Guardians & Wards Act
and, thus the court differed from the decisions which have taken the view
that any person who is unable to maintain himself or herself of whatever
age, without limit would be a child under Section 488, because he is a
child of his father. The result would be a son or daughter under 18 would
be a child under the Act and where a guardian is appointed by court, the
childhood for the purpose of Section 488 would continue during the non-
age or legal infancy, that is, till the completion of 21 years. 1
Christian Marriage
It is the public policy in this Republic to give protection to
woman who are treated to be a class of suffers. While considering right
and liabilities, this is to be kept in mind by Courts. Section 125,
Criminal Procedure Code has created a forum where all wives are given
maintenance on proving circumstances. However, the same is not
conclusive in view of the nature of enquiry conducted by it. Relationship
can be proved in a Civil Court contrary to the finding of the Criminal
Court. Finding of a Criminal Court would not be res judicata in respect
of relationship between the parties. Since Criminal Court gives
temporary relief, the maximum amount of maintenance it can grant is
limited. When there is a divorce proceeding, Court competent to grant
divorce is vested with powers to grant alimony. Both Criminal Court and
the matrimonial court can grant alimony or maintenance as an interim
protection. This clearly leads to the conclusion that a Christian wife has
right to be maintained by her Christian husband which is a part of the
right and obligation of marriage. No custom is required to be pleaded or
proved in support of the same. This is a need of the society without
which a good society shall perish. Accordingly, a person who contests
the right of the Christian wife has to prove that there is either a statutory
or customary prohibition for a Christian wife to get maintenance from a
Christian husband. 2
When there is no such evidence, a Christian wife has a right
maintenance from her Christian husband where he is responsible for a
situation under which the wife is compelled to leave the roof of her to
set husband. 3
1 Amirthammal vs. K. Marimuthu, AIR 1967 Madras 77 (DB): 1966

Mad LW (Cri) 153: (1966) 2 Mad LJ 506: 1966 Mad LJ (Cri) 832:
1967 Cri LJ 205.
2 Manikya Devi vs. Pabitra Swaishing, II (1990) DMC 302 Orissa.
3 Manikya Devi vs. Pabitra Swaishing, II (1990) DMC 302 Orissa.
Right of such wife for maintenance has also been accepted by the
Madras High Court. 1
Compromise
A perusal of Section 488, Criminal Procedure Code shall make it
clear that it contemplates of only two kinds of orders. The application
can be allowed and the amount of maintenance determined or the
application can be dismissed. A Magistrate cannot pass an order not
allowing maintenance for the present but to direct that in the event of
certain conditions coming into existence maintenance allowance shall be
payable. Consequently, such order shall amount to dismissal of
application under Section 488, Criminal Procedure Code on account of
the husband and wife coming to terms and the wife going back to live
with her husband. When the application under Section 488 had in
substance been dismissed, there could be no question of the execution of
the order passed thereon. 2
In other words, on the basis of this order the Magistrate can not
direct the recovery of the maintenance allowance as agreed upon between
the parties. To say that after the parties have come to a compromise, the
Criminal Court ceases to have jurisdiction, shall be against the law.
Section 488, Criminal Procedure Code gives a summary power to the
Magistrate. His orders are not final, in the sense that they can be
reconsidered by a civil Court in a suit instituted by the wife or by the
husband. The jurisdiction of the civil Court is unlimited; while the
Magistrate can pass an order for the maintenance of the wife and
children for the period that no order to the contrary is passed by the
Court. In the circumstances, there was no illegality by the Magistrate in
taking cognizance of a second application under Section 488, Criminal
Procedure Code. 3
Any decision in an earlier proceeding shall be binding on the
parties, but a relief previously refused can be prayed for and granted on
fresh grounds or on similar grounds having come into existence since
after the dismissal of the earlier application. Consequently, where an
application under Section 488 Cr.P.C. is dismissed on the ground that the
husband and the wife had come to terms and the wife had started living
with the husband, she can make another application if the husband later
1 Stella Pakaim vs. K.P.P. Rajaih Ratnam, AIR 1966 Mad 225.
2 Nathuram vs. Ramsri, AIR 1965 All 129: 1964 All LJ 72: 1965 (1)
Cri LJ 273.
3 Nathuram vs. Ramsri, ibid.
Summery remedy—Co-habitation or Compromise between parties 325
refuses or neglects to maintain her. The cause of action would be fresh

one and second application is not barred. 1
Co-habitation or Compromise between parties

The basis of the provision contained in Section 488 Criminal
Procedure Code, 1898 is that a husband is entitled for cohabitation with
his wife, so long as he does not disqualify himself to the enjoyment of
this right, and the wife has the right to be maintained by him, so long as
she does not become disentitled to the same, in any of the ways stated in
the said section. These rights are reciprocal. 2
Subject to the provisions of this section, the husband can at any
time during the subsistence of the marriage demand that his wife should
live with him; and similarly a wife can demand that she should be
maintained by her husband. These mutual rights arise out of the legal
status of being husband and wife; and so long as that relation subsists, it
is open for a wife to revoke or withdraw the consent which she had given
to live separate from the husband and claim to be maintained by him.
The mutual consent only keeps in abeyance the wife’s right to get
maintenance from her husband, and the moment she withdraws or
revokes her consent she becomes entitled to get maintenance from her
husband and also subjects herself to the obligations to him as wife. 3
In one case, after the passing of order of maintenance, there was a
genuine effort by wife to rehabilitate herself in her matrimonial home but
in vain. It was held that the previous orders of maintenance could at best
be taken to have been suspended but not wiped out altogether. The other
view can be that the maintenance order stood exhausted and thus she be
left to fight a new litigation on a fresh cause of action. It was held that
out of the two courses, first course should be preferred because resort to
the second option would lead to injustice. 4
1 Nathuram vs. Ramsri, AIR 1965 All 129: 1964 All LJ 72: 1965 (1)
Cri LJ 273.
2 Ammukutty Amma Ponnamma vs. Narayana Panikkar
Neelakantan, AIR 1967 Ker 216: 1967 Ker LT 258: ILR (1967) 1 Ker
607: 1967 Ker LR 232: 1967 Ker LJ 379: 1967 Mad LJ (Cri) 305:
1967 Cri LJ 1334.
3 Ammukutty Amma Ponnamma vs. Narayana Panikkar
Neelakantan, ibid.
4 Mahua Biswas vs. Swagata Biswas, 1998 (2) SCC 359: 1998 (1)
MPWN 186.
demolished only in terms of the statute. That being absent the Magistrate
will execute the order for maintenance. 1
Constitutional goal
Though Section 125 benefits a distressed father also, main thrust
of the provision is to assist woman and children in distress. That is fully
consistent with Article 15(3) of the Constitution which states that the
prohibition contained in the Article shall not prevent the State from
making any special provision for woman and children. Article 39 of the
Constitution may be noted which states, inter alia, that the State shall, in
particular, direct its policy towards securing that the citizens, men and
woman equally, have the right to an adequate means to livelihood, that
children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and
material abandonment. 2
Customary divorce
In Are Lachiah vs. Are Raja Mallu, 3 it has been laid down with
reference to Section 29 (2) of the Hindu Marriage Act:
“Nothing contained in this Act shall be deemed to affect any right
recognized by custom or recognized by any special enactment to
obtain dissolution of a Hindu Marriage, whether solemnized
before or after the commencement of the Act. Thus, the Act does
not disturb the position which a customary divorce occupied
1 Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: 1979 AIR (SC)
442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377:
1979(1) APLJ 31.
2 Balan Nair vs. Bhavani Amma Valsalamma, II (1987) DMC 238
Kerala (FB): AIR 1987 Ker 110: 1986 Ker LT 1378: ILR (1987) 1 Ker
479: (1987) 1 Hindu LR 395: (1987) 1 Rec Cri R 527: (1987) 2 All
Cri LJ 224.
3 (1963) 1 Andh WR 295.
Summery remedy—Date from which payment is to be made 327
before the enactment of the Act. What has to be found as a fact

for this exception to operate is, whether there had been as a fact
such customary divorce or dissolution of a Hindu marriage.
Therefore the customary divorce can be pleaded and proved in
accordance with law. 1
Date for determining eligibility

There is no legal restriction or bar placed on the right of the
aggrieved “wife” to apply before the Magistrate for the maintenance
under Section 125 Cr.P.C. The maintainability of her application has to
be judged on the date when such application is filed. The stage of
proving the allegations of neglect and refusal is a subsequent stage upon
the proof of which or otherwise her claim would either be allowed or
disallowed by the Court. It is significant to note in this connection that
under the Explanation (b) of Section 125(1) Cr.P.C. “wife” includes a
woman, who has been divorced or has obtained a divorce from her
husband, and has not remarried. On the basis of this explanation it can be
argued that a wife, who has remarried, ceases to be “wife”. But the
question is on what date does this relationship of husband and wife
terminate for purpose of Section 125 Cr.P.C. If the divorced wife files an
application for maintenance under Section 125 Cr.P.C. and till that date
she has not remarried, then in those circumstances she would continue to
be the wife and her application claiming maintenance from her husband
would be legally maintainable. But if the divorced wife remarried and
subsequent to her remarriage she files and application under Section
125(1) Cr.P.C., in those circumstances she having ceased to be the wife
on the date of application, in view of the explanation, her application
would not be maintainable. 2
Thus the status of wife has got to be seen on the date when the
application under Section 125 Cr.P.C. is filed. If she retains that status
the application is maintainable and if she loses that status, the
application is not maintainable as on the date it is filed. 3
1 Edamma vs. Hussainappa, AIR 1965 AP 455: (1965) 2 Andh LT

212: 1965 (2) Cri LJ 712.
2 Ramesh Chandra vs. Beena Saxena, II (1982) DMC 341 All.
3 Ramesh Chandra vs. Beena Saxena, ibid.
Date from which payment is to be made

It is within the discretion of the Court making the order of
maintenance to award a sum either from the date of the application or
from the date on which the order is passed. 1
In this case, the trial Court had dismissed the application of the
application of the Revisional Court, has made the order of maintenance,
making it retrospective in effect in such matter. It was held that it was
expected of the Revisional Court to take a realistic view of the matter as
the proceedings, at times, consume considerable time before an order is
passed, accumulation of arrears of maintenance allowance, in case the
order is made retrospective in effect, at times results in great deal of
hardship. To avoid this, the Court should consider awarding of interim
maintenance, which has been held to be awardable by the Supreme
Court, but if such interim maintenance as not asked for and awarded,
atleast the Revisional Court should, in the event of making the order
retrospective in effect, record reasons for doing so lest it results in not
merely a great deal of hardship to the husband but also deprives forums
of granting the grounds or reasons on the basis of which a retrospective
maintenance order is passed. 2
Therefore in this case when no reasons were indicated, it was
held that the ends of justice would be sufficiently met if the order is
made effective from the date it was made. 3
Section 125 of the Cr.P.C gives discretion to the Magistrate for
imposing sentence of imprisonment for a term which may extend to one
month or until payment, when the person cause fails to comply with the
order without sufficient. The question was that the learned Session Judge
should have considered whether the learned Magistrate has properly
exercised the discretion or not. The learned Session Judge had not given
any reason for the same, but the reason given by the learned Sessions
Judge to modify the order of the learned Magistrate was that if the period
of imprisonment is reduced perhaps he would earn money and pay to the
original applicant wife. It may, be otherwise also, if he is kept in the jail
for a long period within the permissible limit under Section 125(3) then
the defaulting husband against whom the order is passed and/or any of
his relatives may come and pay up the arrears of maintenance amount. It
is, therefore, clear that the reasoning given by the learned Session Judge
1 Ramesh Chandra vs. Beena Saxena, II (1982) DMC 341 All.

2 Ramesh Chandra vs. Beena Saxena, ibid.
3 Ramesh Chandra vs. Beena Saxena, ibid; See also Gafoor Ahmad
vs. Amnabai, II (1986) DMC 389 MP.
Summery remedy—Date from which payment is to be made 329
cannot be sound reasoning on which the order passed by the learned

Magistrate can be modified. 1
The date from which interim maintenance can be granted has
been subject-matter of several controversies. There is no hard and fast
rule as to from what date the grant can be made. It would depend on the
facts and circumstances of each case. There is no legal bar for granting it
prior to date of application. 2 Reference in this context may also be made
to some other decisions of this High Court 3.
In Gouri Das’s case 4, it was held that though the date could be
fixed from the date of service of summons, yet no hard and fast rule can
be laid down and the Court has to decide the date from which the
maintenance is payable having regard to the facts and circumstances of
each case and the conduct of the parties. In Sarojini’s case 5, it was held
that in case of laches and inordinate delay in making the application, the
same may be taken into consideration for not allowing the claim prior to
the date of application.
Another view that payment could be effective from the date of
service of summons was indicated by Punjab and Haryana High Court in
the cases of Sudershan Kumar Khurana vs. Smt. Deepak: 6 and Sarita
Mehta vs. Arvind K.Mehta: 7 and by the Calcutta High Court in the case
of Smir Kr.Banerjee vs. Smt. Sujata Banerjee. 8
Another view is that the interim maintenance should be payable
from the date of order. 9 But this view was expressly dissented from by
the Orissa High Court 10 by observing as under:
1 Chandrikaben Navnitlal vs. State of Gujarat, I (1989) DMC 35

Gujarat.
2 Yudhisthir Nayak v. Smt. Rukmini Nayak 32 (1990) OJD 94 Crl
3 Gouri Das v. Pradyumna Kumar Das, 62 (1986) CLT 218; Samru
Singh v. Dhanmani Singh 62 (1986) CLT 419:II (1986) DMC 189;
and Sarojini Sarangi v. Dr. Bishwanath Sarangi 66 (1988) CLT 593
593:II (1986) DMC 152
4 ibid
5 ibid
6 AIR 1981 P&H 305.
7 (1978) 80 PLR 211.
8 Vol. 70 CWN 633.
9 Ramesh vs. Chitra, II (1988) DMC 502 MP; Madhu Sudan vs.
Pushpa Bahwana II (1987) DMC 461 Raj
10 Ram Chander Agarwalla vs. Mrudula Poddar @ Agarwalla, II (1991)
DMC 48 Orissa.
‘The view indicated by the learned Single Judge of the said Court
is that under Section 21 of the Act ordinarily the amount of
maintenance is granted from the date of the order passed by the
Court. Section 24 of the Act nowhere postulates such a condition.
The foundation for the view has not been indicated in the
judgment. Therefore, the decision of Madhya Pradesh High Court
in this regard is of no assistance to the petitioner. So far as the
decision of the Rajasthan High Court is concerned, the only
principle laid down by the Court seems to be that grant of
maintenance pendente lite is discretionary which as to be
exercised on sound legal principles and not on caprice or humour.
As a general principle, there can be no reason to differ with the
view expressed, but there is nothing is the decision which throws
any light on the controversy relating to the date from which the
interim maintenance can be awarded. 1
Clause (2) of Section 125 stated that the Court can order
maintenance from the date of the order or if so ordered, from the date of
the petition. Therefore the discretion is given to the Court. Merely
because of the words ‘so ordered’ contained in Section 125(2) Crl. P.C.,
‘from the date of the application for maintenance’, it cannot be said the
date of the petition. If the Court considers the circumstances of a
particular case and order maintenance from the date of the petition, it
cannot be said that the Court exercised the discretion which is not vested
in it. It must be noted that in cases where special reasons are to be
assigned, the Criminal Procedure Code has specifically stated so in the
provisions. But, there is no mention specifically in Section 125(2)
Criminal Procedure Code that the Court must give special reasons for
awarding maintenance from the date of the petition. 2
It is generally expected that maintenance shall be payable from
the date of the order. If the Magistrate wants that the maintenance can be
awarded from the date of the filling of the application, the Magistrate
can do so, by invoking the provisions of Section 125(2) Criminal
Procedure Code. If no mention has been made in the order of the
Magistrate about the date of the commencement of the claim, it has to be
construed that it will take effect from the date of the order. In this case,
the Magistrate passed the order granting maintenance with effect from
the date of filing of the petition. No where the Session Judge has
mentioned that the order of maintenance will take effect from the date of
filing of the revision or from the date of passing the order. It is only the
figure of maintenance that has been substituted by enhancement of the
1 Ram Chander Agarwalla vs. Mrudula Poddar @ Agarwalla, II (1991)

DMC 48 Orissa.
2 K. Sivaram vs. K. Mangalamba, II (1989) DMC 452 AP.
Summery remedy—Decree of judicial separation 331
amount. When two views are possible basing on the facts and
circumstances in awarding the maintenance, the view that in favourable
to the maintenance-holder has to be preferred. 1
It is perfectly permissible under Section 125 Sub-section (2) of
the Criminal Procedure Code to grant maintenance from the date of
application. 2
Decree of civil court

A final determination of a civil right by a civil court must prevail
against a like decision by a criminal court. But certain factors make the
principle inapplicable. Firstly, the direction by the civil court is not a
final determination under the Hindu Adoptions and Maintenance Act but
an order pendente lite, under Section 24 of the Hindu Marriage Act to
pay the expenses of the proceeding, and monthly during the proceeding
such sum as, having regard to the petitioner’s own income and the
income of the respondent, it may seem to the court to be reasonable.
Secondly, this amount does not include the claim for maintenance of the
children although the order does advert to the fact that the respondent
has their custody. This incidental direction is no comprehensive
adjudication. Therefore, barring marginal relevance for the Magistrate it
does not bar his jurisdiction to award a higher maintenance. 3
Decree of judicial separation

A decree of judicial separation should not be passed if the wife
without sufficient reason does not live with her husband. The fact that a
decree for judicial separation has been passed means that the wife has no
reasonable ground not to live with her husband. In such a case it is clear
that sub-section (4) of Section 488, Criminal Procedure Code applies,
and the wife is not entitled to maintenance. In such a case, therefore, the
order for maintenance must be cancelled. 4 But Allahabad High Court has
taken a different view which is discussed hereafter.
There is a basic difference between a decree for divorce and a
decree for judicial separation as in case of divorce the status of husband
and wife comes to an end whereas in case of judicial separation the
1 M. Shobha vs. Mysker Madhusudhan Rao, I (1988) DMC 131 AP.

2 Dashrath vs. Sou. Kusum, I (1988) DMC 133 Bombay.
3 Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ 3: AIR
1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978 SCC (Cr)
508: 1979 MPLJ 10: 1979 Mah LJ 1.
4 Dahyalal Amarthalal Bhagat vs. Bai Madhukanta W/o Dayalal
Amarthalal, AIR 1965 Guj 247: ILR (1964) Guj 968: (1964) 5 Guj
LR 895: 1965 (2) Cri LJ 497 (2).
status of wife and husband continues. Even in case of a decree for

judicial separation passed on the ground of desertion of wife the fact of
desertion of the wife before the decree is passed cannot be taken into
consideration after the decree is passed as the liability of the husband to
maintain his wife continues under Section 125(1)(a) of the Code and it
cannot be held that he is not liable to maintain her in view of Section
125(4) of the Code as there is sufficient cause for the wife not to live wit
the husband after the decree for judicial separation has been obtained by
the husband against her. 1
It is significant to note that the words used in Section 125(4) of
the Code are “without any sufficient reasons she refuses to live with her
husband” and not “without sufficient reason has refused to live with her
husband”. It is obvious that after the decree for judicial separation has
been passed there is sufficient reason for the wife to refuse to live the
husband although before the said decree is passed there may not have
been sufficient reason for her to refuse to live with her husband if she
deserted him. The decree for judicial separation itself is a sufficient
cause for the wife not to live with her husband. If the husband is not
maintaining his wife after judicial separation he is obviously either
neglecting her or refusing to do so. The finding of desertion by the wife
in granting a decree for judicial separation is, therefore, of no
consequence in proceedings under Section 125 of the Code, initiated
after the decree for judicial separation is granted as the decree itself is
sufficient reason for the wife not to live with her husband after it
is passed. 2
Defence
1 Prakash Chandra Verma vs. Prakashwati @ Krishna Devi, I (1983)

DMC 454 All.
2 Prakash Chandra Verma vs. Prakashwati @ Krishna Devi, ibid.
Summery remedy—Delay in making claim 333

demolished only in terms of the statute. 1
One of the grounds on which a wife’s claim for maintenance
allowance under Section 125 of the new Code would be defeated is if a
wife refuses without sufficient reason to live with her husband. It seems
to me that sufficiency of reason contemplated therein in a question of
fact. But that is not to say that any and every reason or pretext put forth
on behalf of a wife should be accepted in satisfaction of such a
requirement. The cause shown must be reasonable and must have some
relation to the health and safety of the wife. The section does not
contemplate any reason, by way of inconvenience, hardship or such
other, which is purely based on economic or financial grounds. The
section further merely enacts an exception to the rule governing grant of
maintenance under the main Clause of Section 125 of the Code new and
does not expressly give any indication as to where the burden lay to
establish, or to disestablish, such a fact. But going by the general
principles of law, and especially when the said provision is viewed as an
exception, to my mind, the burden of establishing it, lies on the husband
who has been found by the Court to have deserted the wife as a matter of
fact. But such proof may consist of admissions to be gleaned from the
evidence adduced on behalf of the wife in support of her claim for
maintenance allowance. 2
Delay in making claim

Woman folk in our country are very modest and shy and a vast
majority of them do not move out of their domesticity. They do not like
to go in for litigation which is tiring, time consuming and expensive. A
deserted wife may be able to sustain herself for sometime but when she
reaches a breaking point and is no more able to bear the pangs of hunger
and pennilessness she is entitled to approach the Court. Her right of
claiming maintenance is a continuing one and the legislature has taken
care by not providing any period of limitation for making an application
under-Section 125 Criminal Procedure Code. 3
Section 125 Criminal Procedure Code has not restricted the
1 Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: AIR 1979 SC
442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377:
1979(1) APLJ 31.
2 Gurmit Kaut @ Pritam Kaur vs. Harjit Singh, II (1982) DMC 24
P&H.
3 Ratan Lal vs. 2nd Addl . Session Judges, Mathura, I (1994) DMC 20
All.
prohibited any wife to claim maintenance with any period of limitation,

the husband is not entitled to plead that she has waived her right to claim
maintenance due to the long lapse of 10 or 12 years after she left his
house. Due to the changed circumstances in her parents house, her
parents may not be willing to maintain her and they may not be in a
position to maintain her since other children have grown up and some
other problems might have cropped up in her family. Under these
circumstances, the petitioner is not entitled to raise the plea that the
respondent has waived her right to claim maintenance after a long lapse
of 12 years. 1
Delay simplicitor is no ground to reject the claim for maintenance
because there is no limitation prescribed for making an application under
Section 125, Cr.P.C. The true question that has to be considered is
whether the delays shows the conduct of the claimant to waive her right
to maintenance. 2
Determination by civil court

A final determination of a civil right by a civil court must prevail
against a like decision by a criminal court. But here two factors make the
principle inapplicable. Firstly, the direction by the civil court is not a
final determination under the Hindu Adoptions and Maintenance Act but
an order pendente lite, under Section 24 of the Hindu Marriage Act to
pay the expenses of the proceeding, and monthly during the proceeding
such sum as, having regard to the petitioner’s own income and the
income of the respondent, it may seem to the court to be reasonable.
Secondly, this amount does not include the claim for maintenance of the
children although the order does advert to the fact that the respondent
has their custody. This incidental direction is no comprehensive
adjudication. Therefore, barring marginal relevance for the Magistrate it
does not bar his jurisdiction to award a higher maintenance. 3
Determination of paternity
When there was no evidence to show that the mother of the
minor-applicant was having sexual intercourse with any other person, it
was held that when it was proved that she had sexual intercourse with the
applicant alone, it cannot be said that the evidence led on behalf of the

2 Manohar vs. Usha, II (1985) DMC 267 Bombay.
3 Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ 3: AIR
1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978 SCC (Cr)
508: 1979 MPLJ 10: 1979 Mah LJ 1.
Summery remedy—Dismissal in default 335
non-applicant cannot establish the paternity of the minor-applicant vis-à-

vis the applicant. 1
Disentitlement to avail remedy

See under the chapter 4 relating to ‘Disabilities depriving
maintenance’
Dismissal in default
Order 9, Rule 9, Civil Procedure Code, 1908 provides that where
a suit has been dismissed for the plaintiff’s non-appearance even though
the defendant had appeared when the suit was called for hearing, the
plaintiff is not eligible to bring a fresh suit on the same cause of action
but may apply to set aside the order of dismissal on showing sufficient
cause for his non-appearance. The bar contemplated under the provision
is a prohibition to bring a new suit on the same cause of action. On the
face of it, the provision cannot apply to an application under Section
125, Criminal Procedure Code and hence even if a suit is dismissed for
default and another suit on the same cause of action would be barred, yet
an application under the Criminal Procedure Code statutorily provided
for would not suffer from any disqualification. 2
In the case of Raju vs. State, 3 it was held that in view of the
provisions of Section 362 of the Criminal Procedure Code, 1973 the
Court’s power to alter or review its judgment or order, through which a
case is finally disposed of was limited only to the correction of clerical
or arithmetical errors. It had no other power to recall its own judgment
or order or set it aside in exercise of its inherent powers. Again, earlier
in the year 1980 vide the case of Shymta vs. Dangra, 4 the Court was
dealing with a similar application under the old provision of Section 488
Criminal Procedure Code. It was a wife’s maintenance petition and it
was specifically held that the court had no power to restore it if it had
been dismissed for default. It was also observed that Section 488
Criminal Procedure Code contemplates only on situation in which the
restoration of an order passed under that provision of law can be made
and it is only when an ex parte order has been passed against a husband.
Reference was made to the case of Krishna Rao Palne vs. Pramila Bai, 5
and it was held that the Magistrate had no power under Section 561-A to
order restoration. The inherent powers were possessed only the by the
1 Chandrakumar vs. Shailendrakumar, II (1985) DMC 350 Bombay.

2 Rabindra Biswal vs. Hemalata Biswal, II (1989) DMC 418 Orissa.
3 1982(19) ACC. 138.
4 1980(17) ACC 14.
5 1976 Cr.LJ. 1819.
powers High Court and even if the proceedings under Section 488
Criminal Procedure Code are quasi judicial in nature, that will not mean
that the Magistrate can get all the powers of the Civil Court. Reliance
was also placed on the case of Hakimi Jan Bibi v. Mouza Ali, 1 in which a
Division Bench of Calcutta High Court had held that the law does not
empower the Magistrate to hear an application for maintenance under
Section 488 Criminal Procedure Code dismissed for non-appearance.
A similar point was considered by the Supreme Court 2 the Court
held that so far as the accused is concerned, dismissal of a complaint for
non-appearance of the complainant or his discharge or acquittal on the
same ground is a final order and in the absence of any specific provision
in the Code a Magistrate cannot exercise any inherent, jurisdiction to
restore the case. A second complaint is permissible in law if it could be
brought within limitations imposed by the Supreme Court. 3 Filing of a
second complaint in not the same thing as reviving a dismissed
complaint after recalling the earlier order of dismissal. The Criminal
Procedure Code does not contain any provision enabling the Criminal
Courts to exercise such inherent power. What the Court has to see is not
whether the Criminal Procedure Code contain any provision prohibiting
the Magistrate from entertaining an application to restore a dismissed
complaint, but the basic task should be to find out whether it contains
any provision enabling the Magistrate to exercise the inherent
jurisdiction which he otherwise does not have. An earlier decision of the
Supreme Court in earlier case, 4 was quoted and relied upon. This being
the legal position, it was held that it is not open to the learned Magistrate
to direct the restoration of the petition under Section 127 Criminal
Procedure Code. 5
Keeping in view the benign provisions in Section 125 enacted to
ameliorate economic condition of neglected wife and discarded divorces
and to save enumerated persons from vagrancy and destitution, welfare
laws must be so read as to be effective delivery systems of salutary
objects sought to be served by the legislature. When beneficiaries are
weakens sections like destitution woman, spirit of Article 15(3) of the
Constitution must be light meaning of Section 125 and its sister clauses
1 2 Cr.LJ. 213.
2 Maj. Gen. A.S. Gauraya v. S.N. Thakur, AIR 1986 SC 1440.
3 Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC
876.
4 Bindeshwari Prasad Singh vs. Kali Singh, AIR 1977 SC 2432.
5 Pramod Kumar Mittal vs. Kanchan Devi, I (1988) DMC 289 All.
Summery remedy—Divorced wife 337
and provisions must receive compassionate expansion of sense that the

words used permit. With these observations it was observed as under:
‘Two decades of litigation has not been sufficient to weaken the
spirit with which parties have been litigating. The fact that
interim maintenance was granted by the learned Judge, Family
Court, shows existence of prima facie material regarding
entitlement of the appellant during pendency of the proceeding.
The reason advanced by the appellant to justify her non-
appearances does not appear to be so absurd and unreasonable as
to warrant outright rejection. A party does not gain by not
attending the Court on the date fixed. Unless a callous and
negligent attitude is borne out from record, a liberal attitude has
to be adopted when a party shows cause for no appearance. A
rigidistic approach while dealing with cause of non-appearance in
a case for maintenance under Section 125 of the Code is likely to
frustrate the very purpose for which the provision was enacted.
Any hair splitting of facts situation would not further ends of
justice. True it is, the Court has to be satisfied about justifiable
reason for non-appearance. But such matters cannot be weighed
in golden scales. On the scales of justice and equity, the balance
learn heavily in favour of the appellant. therefore, we set aside
the order of learned Judge. Family Court rejecting the application
for restoration.’ 1
Divorced wife
Explanation (b) appended to Section 125 Criminal Procedure
Code lays down that a ‘wife’ includes woman who has been divorced by,
or has obtained a divorce from her husband and has not remarried. Sub-
clause (4) will also be clearly application to her case and she will have to
show that she is not returning back to husband for sufficient reasons.
Only then she will be entitled to maintenance till the time she remarries.
A wife who has applied for maintenance under Section 125 is not
disentitled to maintenance if she has not remarried, merely on account of
the fact that the husband has obtained a decree of divorce or a decree for
judicial separation on the ground of desertion. It was observed:—
“Under Section 125(1)(a) a person having sufficient means is
under an obligation to maintain not only his wife but also his
divorced wife who has not remarried. The ground on which the
decree for divorce was obtained is immaterial. Thus even though
the decree for divorce was obtained by the husband on the ground
of desertion of the wife he is required to maintain the divorced
wife under Section 125(1)(a). Similarly, the finding of desertion
by the wife in granting a decree for judicial separation is no
consequence in proceedings under Section 125 initiated after the
1 Aruna Kar vs. Sarat Dash Nachhi, I (1993) DMC 153 Orissa.
decree for judicial separation in granted as the decree itself is

sufficient reason for the wife not to live with her husband after it
is passed.” 1
In case of Bai Tahira vs. Al Hussain Fissalli Chothie, 2 the effect
of Explanation (b) to Section 125(1) of the Code was considered and it
was held that it was clear that every divorced wife, otherwise eligible, is
entitled to the benefit of maintenance allowance and the dissolution of
the marriage makes no difference to this right under the Code. In another
case of Sayead Mukhtar Ahmad vs. Smt. Moonia Fatma, 3 the observation
was to the effect that once the husband divorces his wife or the wife
obtains a divorce from her husband she becomes entitled to claim
maintenance from ex-husband provided she is unable to maintain herself
and the husband has neglected to maintain her. Her right to claim
maintenance would come to an and only if she remarries or lives in
adultery or if she voluntarily surrenders her right to maintenance. 4
Therefore, the matter rests here and it has been held that a
divorced wife is also entitled to maintenance provided she is unable to
maintain herself and the husband in neglecting her to do so and she has
not remarried or surrendered her right or is not living in adultery. 5
In all those case where the husband has divorced his wife, it will
be assumed that the wife is not living separately by mutual consent. On
the same logic the divorced wife can not be held to be living separately
‘without sufficient reason’. Clearly therefore, condition Nos. (2) and (3)
are not attracted in cases where the husband has divorced the wife. Can a
different conclusion be reached where the wife and not the husband, has
obtained divorce? No personal law has, so far, given such a right to the
wife and hence such cases, if at all, can arise only under the statutory
laws. In all statutes, whether it be the Hindu Marriage Act, 1956 or any
other law, the right given to the wife to obtain a decree for divorce is
limited and is available only when the husband treats her with cruelty
etc. Unless the husband is held guilty of delinquency, no court would
grant divorce to the wife. In all such cases, the right of the wife to
receive maintenance under Section 125 of the Code would remain intact
and would not be defeated under Sub-section (4) thereof. Indeed Sub-
section (4) of Section 125 of the Code would not be attracted in cases
where the wife obtain a decree of divorce on proof of husband’s
1 Prakash Chandra Verma v. Smt. Prakashwati, 1983 ALJ 766

2 AIR 1979 SC 363.
3 1981 ACC 224.
4 Shanti Devi v. Basant Lal, 1984 (21) ACC105.
5 Madhusudan Misra vs. State of U.P., I (1988) DMC 525 All.
delinquency. In this view of the matter, it was held that a divorced wife
is not living separately with the husband ‘by mutual consent’ and would
therefore be entitled to receive maintenance under this provision. 1 Mere
divorce does not end the right to maintenance. 2
Claim for maintenance under the first part of Section 125,
Criminal Procedure Code is based on the subsistence of marriage while
claim for maintenance of a divorced wife is based on the foundation
provided by Explanation (b) to Sub-section (1) of Section 125, Criminal
Procedure Code. If the divorced wife is unable to maintain herself and if
she has not remarried, she will be entitled to maintenance allowance. The
Calcutta High Court had an occasion to consider an identical situation
where the husband had obtained divorce n the ground of desertion by
wife but she was held entitled to maintenance allowance as a divorced
wife under Section 125, Criminal Procedure Code and the fact that she
had deserted her husband and on that basis a decree for divorce was
passed against her was not treated as a bar to her claim for maintenance
as a divorced wife. 3 The Allahabad High Court also took a similar view.
These decisions were approved as representing the correct
legal position. 4
The wording used by the Legislature is not a woman against
whom a decree of divorce was obtained by her husband but the woman
who has been divorced by her husband. If the Legislature had wanted to
include a woman against who a decree of divorce is obtained by her
husband, the Legislature would have used the appropriate phraseology to
cover such woman as done in the second limb of the explanation to cover
the case of a woman who herself obtains divorce from her husband. The
fact that different phraseology has been used for the first limb of
Explanation (b) would mean that Legislature never intended to include
woman against whom decree of divorce was obtained by her husband
from a Court of Law proving some fault on the part of the wife. The
words used by the Legislature in the said explanation would not justify
different interpretation. On the contrary, the words are very clear which
do not include a woman whose marriage has been dissolved by decree of
divorce at the instance of her husband. If the interpretation which was
placed by some of the Courts is accepted so as to include woman against
1 Atjunlal Thawait vs. Shashikala, I (1990) DMC 158 MP.

2 Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal, AIR
1978 SC 1807: 1978(4) SCC 70: 1978(3) SCR 782: 1979 MLR 30.
3 Sukumar Dhibar vs. Anjali Dasi, 1983 Crl.LJ. 36
4 Rohtas Singh vs. Ramendri, I (2000) DMC 338 SC: 2000(3) SCC
180.
whom divorce was obtained by her husband from a Court of Law, it

would certainly lead to a very anomalous situation. If such a woman
against whom decree of divorce was obtained by the husband is included
in the extended definition of the wife under Section 125(1) of the Code
of Criminal Procedure it would mean that the woman who was wrong-
doer or was guilty of desertion or cruelty against her husband would be
entitled to claim maintenance after a decree of divorce is passed against
her, though undisputedly, she would not be entitled for maintenance
before such divorce was granted by virtue of Sub-section (4) of Section
125 of the Code of Criminal Procedure. To hold that a woman against
whom a decree of divorce was obtained by the husband is entitled for
maintenance; would go not only against the express words of
Explanation (b) to Section 125(1) of the Code of Criminal Procedure but
also would create an anomalous situation as pointed out above. Happily
the Legislature itself has taken care to see that such incongruous position
does not arise by using appropriate phraseology. 1
When a decree for divorce has been passed, whatever be the
reasons for the passing of the decree, the divorced wife has statutorily
been conferred a power to claim maintenance from her ex-husband,
subject to other conditions fulfilling, under section 125, Criminal
Procedure Code. The clear language in that regard is available in part (b)
of the Explanation appearing under Section 125, Criminal Procedure
Code. It has specifically been provided therein that the wife includes a
divorced wife. Her claim to maintenance could only be negatived if she
had received some compensation for maintenance from her husband. 2
Sub section (4) does not apply to divorced wife therefore there can be no
question of her living in adultery or refusing to live with husband
without sufficient cause. Therefore a wife who had been divorced by
mutual consent, is also entitled to maintenance. 3
In the case of Captain Ramesh Chander Kaushal vs. Veena
Kaushal, 4 a question arose ‘whether maintenance allowance under

HLR 579 Bombay.
2 Raj Kumari vs. Rajinder Lal Mehta, II (1985) DMC 126 P&H; Ameer
Amanullah vs. Padikkaru Manaim Beevi, II (1985) DMC 220
Madras; Prakash Chandra Verma vs. Prakashwati @ Krishna Devi,
I (1983) DMC 454 All; K. Shanmukhan vs. G. Sarojini, I (1983)
DMC 477 Kerala; Khem Chand Kataria vs. Shakuntala Devi, II
(1983) DMC 201 Delhi; Shahzadi Begum vs. Mohd. Abdul Ghaffar,
II (1982) DMC 171 AP.
3 Vanamala vs. H.M. Ranganatha Bhatta, 1995 (5) SCC 299
4 AIR 1978 SC 1807
Section 125 Criminal Procedure Code can be at the rate higher than the
rate at which interim maintenance is granted in divorce proceedings
pending in a Civil Court?’ The question was answered in the affirmative
and after considering the scheme and purpose of Section 125 Criminal
Procedure Code in the concluding paragraph and it was observed:
“We have been told by S.T. Desai that the divorce proceeding
terminated adversely to his client but an appeal in pending. If the
appeal ends in divorce being decreed, the wife’s claim for
maintenance qua wife comes to an end and under Section 127 of
the Code the Magistrate has the power to make alterations in the
allowance order and cipherise it. We make the position clear that
confusion should breed fresh litigation.”
Later on noting a patent error which unfortunately crept in the
above observations, the legal position was clarified after hearing both
sides and a new paragraph was substituted in place of the above
paragraph with the following observation:
“The last paragraph in the judgement concludes with the
statement—‘If the appeal ends in divorce being decreed, the
wife’s claim for maintenance qua wife comes to an end under
Section 127 of the Code, the Magistrate has the power to make
alterations in the allowance order and cipherise it.”
The judgment would seem to indicate that once divorce is decreed
the wife ceases to have any right to claim maintenance and that
such an impact can be brought about by an application under
Section 127 of the Code. It is clear that this conclusion
contradicts the express statutory provision. The advocates on both
sides agree that this is a patent error and further agree that the
law may be correctly stated and the contradiction with the statute
eliminated. Therefore, we direct that in substitution of the last
paragraph, the following paragraph will be introduced:
We have been told by Shri S.T. Desai that the divorce proceeding
has terminated adversely to his client but that an appeal is
pending. Whether the appeal ends in divorce or no, the wife’s
claim for maintenance qua wife under the definition contained in
the Explanation (b) to Section 125 of the Code continues unless
parties make adjustments and come to terms regarding the
quantum or the right to maintenance. We make the position clear
that mere divorce does not end the right to maintenance.”
The italicised portion should remove doubt if any on the true
legal position on the question involved. 1
Where a divorce had taken place between the parties and the
parties were living separately because of the divorce, it cannot be said
1 Shrawan vs. Sau. Durga, II (1988) DMC 89 Bombay.

that they are living separately by mutual consent as husband and wife
and, therefore, the applicant is disentitled from receiving maintenance.
Though the definition of wife by virtue of Explanation-B to Section
125(1) includes a woman who has been divorced by or has obtained a
divorce from her husband and has not re-married in the very nature of
thing, in Sub-section 4 of Section 125, the word ‘wife’ so for as the
question of living separately by mutual consent is concerned, cannot be
said to include a divorce wife also. Reading in the proper context, a wife
who has been divorced by her husband, or has obtained a divorce from
her husband and has not remarried, is by the very fact of divorce, has to
live separately from her husband, she is not expected at all to live, with
her husband and, therefore, the question of her living separately by
mutual consent does not arise. Consent to live separately is required only
when there is an obligation to live together. When the obligation to live
together itself has come to an end, living separately on a divorced couple
cannot be said to be living separately by mutual consent for the purpose
of Sub-section 4 of Section 125 disentitling the divorced wife from
claiming maintenance. The very purpose of the Explanation B to sub-
section (4) of Section 125 of the Cr.P.C. shall be defeated it a divorced
wife is expected to live or in taken to be living separately from her
husband by mutual consent. The harmonious construction of the two
provisions can only be that a divorced wife shall not be deemed to be
living separately from her husband by mutual consent, she has to be
taken to be living separately from her husband under the compulsion of
failure of her marriage which is acknowledged by the decree of divorce. 1
Dropping of proceedings
Neither Section 244, nor Section 245 Criminal Procedure Code
can be made applicable to proceedings under Section 125 Cr.P.C. Section
244 and 245 Cr.P.C. apply to the cases tried for criminal offences and
that is a general procedure applicable to all such category of cases
instituted otherwise than on a police report. But, a special procedure is
carved out in so far as Section 125 Cr.P.C. proceedings are concerned. It
cannot be equated to private complaint so that theory of Section 244 and
245 Cr.P.C. can be imported. In fact, for Section 125 Cr.P.C.
proceedings, a separate and specific procedure has been formulated and
provided under Section 126 of Cr.P.C. The Magistrate trying a
maintenance case under Section 125 Cr.P.C. shall follow the procedure
contemplated only under Section 126 Cr.P.C. and not otherwise. Under
Section 126 Cr.P.C. either application of Section 245(1) Cr.P.C. or even
the analogy of the same cannot be pressed into service. Procedure under
1 Molyabai vs. Vishram Singh, II (1992) DMC 33 MP.

Summery remedy—Effect of Act of 1986 343
Section 126 Cr.P.C. will not approve any such action by the Magistrate
to drop the proceedings without taking the evidence.
The evidence to be taken is both, oral and documentary and the
said procedure cannot be dispensed with. 1
In the above case, the Court of Magistrate adopted a very strange
policy of hearing the arguments advanced on behalf of the parties merely
basing on some documents filed by the respondent. It was held that such
a procedure is unknown to Section 125 Cr.P.C. proceedings. It was
further observed as under:
‘In fact, it is apt to state that the Magistrate has adopted short-
circuit method to terminate the proceedings and in that process
succumbed to the dilatory tactics of the 1 st respondent to avoid
the enquiry and to circumvent the orders previously passed this
Court on 30.1.1992 dismissing the quash proceedings. The 1 st
respondent cannot avoid the enquiry and he has to face the same.
There is no option for the Magistrate, but to take the evidence
both, oral and documentary, hear the arguments and pass a
reasoned order on merits.’ 2
Effect of Act of 1986
A plain reading of the Muslim Women Act would show that it has
provided a particular procedure to be followed by a Magistrate while
dealing with an application under Section 125 Criminal Procedure Code
by a divorced Muslim lady and the procedure is almost a time bound
programme. Under Section 7 of the Act, every application by a divorced
woman under Section 125 or 127 of the Code of Criminal Procedure,
1973 (2 of 1974), pending before a Magistrate on the commencement of
this Act, had been directed to be decided and disposed of in accordance
with the provisions of that Act. It would in effect means that where the
proceedings are pending before a Magistrate on the date of enforcement
of the Act they would be disposed of according to the provisions of that
Act and for that disposal the provisions of the act would over ride the
provisions of the Code of Criminal Procedure. Under Section 3 of the
Act, the provisions have been made for recovery of maintenance for the
period of date or the return of dowry and payment of dower within a
short time. That time can not be obtained again. If there have been no
payment of dower or return of articles of dowry because at that time they
were all redundant for the purposes of maintenance all that cannot be
done now. It would be only after the return of those articles that the
provisions of Section 4 (payment of maintenance) would be applicable,
1 Sahira Banu vs. Shaik Basheer Ahmed, I (1996) DMC 382 AP.
2 Sahira Banu vs. Shaik Basheer Ahmed, ibid.
and therefore, the provisions of this Act would not be available. Not only
this, after the enactment of this under Section 5 therefore, the parties
could have had an option to convey before the Magistrate as to whether
they would like to be governed by the provisions of Section 125 to 128
of the Code of Criminal Procedure. 1
Effect of custody of children

It is very likely that the wife may be insisting that the custody of
the children should be with her, while she wants to live separate from the
husband for her own reasons. But that does not mean that the husband
has neglected or refused to maintain them. In the absence of any cogent
evidence to show that the children were also neglected and refused to be
maintained by the husband, no order of grant of maintenance can be
made under Section 125 of the Code of Criminal Procedure. 2
When it was not the case before the Trial Court that the children
were driven out by the husband and for which he has never bothered to
pay the maintenance or has neglected them, it was held that no case has
been made out by the wife on behalf of her children to seek entitlement
of maintenance on behalf of the children. 3
Effect of divorce
Claim for maintenance under the first part of Section 125,
Criminal Procedure Code is based on the subsistence of marriage while
claim for maintenance of a divorced wife is based on the foundation
provided by Explanation (b) to Sub-section (1) of Section 125, Criminal
Procedure Code. If the divorced wife is unable to maintain herself and if
she has not remarried, she will be entitled to maintenance allowance. 4
The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of
desertion by wife but she was held entitled to maintenance allowance as
a divorced wife under Section 125, Criminal Procedure Code and the fact
that she had deserted her husband and on that basis a decree for divorce
was passed against her was not treated as a bar to her claim for
maintenance as a divorced wife. 5
1 Syed Akbar Ali vs. Session Judge, Moradabad, II (1991) DMC 626
All.
2 Raj Bahadur Sinha Singhel vs. Sona, II (1984) DMC 41 Bombay.
3 Raj Bahadur Sinha Singhel vs. Sona, ibid.
4 Rohtas Singh vs. Ramendri, I (2000) DMC 338 SC: 2000(3) SCC
180.
5 Sukumar Dhibar v. Smt. Anjali Dasi, 1983 Crl.LJ. 36.
Summery remedy—Effect of Section 24 of Hindu Marriage Act 345
The wording used by the Legislature is not a woman against

whom a decree of divorce was obtained by her husband but the woman
who has been divorced by her husband. If the Legislature had wanted to
include a woman against who a decree of divorce is obtained by her
husband, the Legislature would have used the appropriate phraseology to
cover such woman as done in the second limb of the explanation to cover
the case of a woman who herself obtains divorce from her husband. The
fact that different phraseology has been used for the first limb of
Explanation (b) would mean that Legislature never intended to include
woman against whom decree of divorce was obtained by her husband
from a Court of Law proving some fault on the part of the wife. The
words used by the Legislature in the said explanation would not justify
different interpretation. On the contrary, the words are very clear which
do not include a woman whose marriage has been dissolved by decree of
divorce at the instance of her husband. If the interpretation which was
placed by some of the Courts is accepted so as to include woman against
whom divorce was obtained by her husband from a Court of Law, it
would certainly lead to a very anomalous situation. If such a woman
against whom decree of divorce was obtained by the husband is included
in the extended definition of the wife under Section 125(1) of the Code
of Criminal Procedure it would mean that the woman who was wrong-
doer or was guilty of desertion or cruelty against her husband would be
entitled to claim maintenance after a decree of divorce is passed against
her, though undisputedly, she would not be entitled for maintenance
before such divorce was granted by virtue of Sub-section (4) of Section
125 of the Code of Criminal Procedure. To hold that a woman against
whom a decree of divorce was obtained by the husband is entitled for
maintenance; would go not only against the express words of
Explanation (b) to Section 125(1) of the Code of Criminal Procedure but
also would create an anomalous situation as pointed out above. Happily
the Legislature itself has taken care to see that such incongruous position
does not arise by using appropriate phraseology. 1
Effect of Section 24 of Hindu Marriage Act

The remedies under Section 24 of the Hindu Marriage Act and
under Section 125, Cr.P.C. are not alternative but they are concurrent
and optional to the party entitled to make avail of. They are remedial
measures intended to alienate the hardship that may be caused to either
spouse i.e., the applicant under Section 125 Cr.P.C. or the respondent
under Section 24 of the Hindu Marriage Act. Therefore, the mere

HLR 579 Bombay.
possibility of availability of the remedy under Section 24 of the Hindu

Marriage Act does not take away the power and jurisdiction of the Court
under Section 125 Cr.P.C. to grant relief. 1
Effective date of modification

Section 127(2) of the Code enjoins that where after an order for
maintenance passed in favour of the wife under Section 125(2) of the
Code, the husband obtains a decree necessitating the cancellation of the
order, the Court shall cancel or vary the order. The legislature under
Section 125(2) of the Code has given power to the Magistrate to date
back the order of the application but does not give any such power under
Section 127(2) of the Code. 2 In the case in Satteyya vs. Malsoor, 3 also it
is held that the order of cancellation of maintenance always operates
prospectively and not retrospectively. 4 Similar view is taken in some
other cases. 5
Enforcement by imprisonment
Imprisonment is a means of enforcement of payment, and an
order for imprisonment can be passed, only, after there has been
negligence to pay the maintenance. The material question to the
considered is whether such an order of imprisonment can be passed
without, at first, issuing the warrant for levying the amount due. It is no
doubt true that the normal rule is, at first, to try to seek enforcement of
the order by issuing the distress warrant in the manner provided in the
Code for levying fines; but, this rule, is not mandatory, that is, to be
necessarily followed in each and every case without considering the
attending circumstances of the particular case. 6
Section 125 of the Code has been enacted with the object of
enabling the helpless and deserted wife and children to secure the much
needed relief. It has a special social purpose behind it to subserve the
interest of the weaker sections of society i.e. the woman class. The
husband, once the maintenance order is passed against him, cannot be
allowed to play hide and seek by adopting delaying tactics and thus,
1 Ajjarapu Surya Sriramchandra Murthy vs. Ajjarappu Tejo

Satyasathimani, I (1984) DMC 406 AP; C.M. Mani vs. Esther
Pachikara, I (1983) DMC 409 Kerala.
2 J.H. Amroon vs. Miss R. Sassoon, AIR 1949 Cal 584.
3 AIR 1959 Hyd. 53.
4 Balraj Singh vs. Balkar Singh, II (1983) DMC 159 P&H; Ismail
Kasam Khokhar vs. Khatun Alarakha, II (1983) DMC 216 Gujarat.
5 Bhagat Singh v. Smt. Parkash Kaur, 1972 PLR 952 and Ved
Parkash v. Smt. Chanchal Kumari, 1980 PLR 304.
6 Bhure vs. Gomatibai, I (1982) DMC 20 MP.
Summery remedy—Enforcement by imprisonment 347
make the life of his deserted wife, miserable and reckless for want of
necessary amount to feed herself and her children, if any. The law must
subserve the social purpose and the subtle technicalities of law cannot be
allowed to stand in the way of help and succour which the wife is
entitled to receive by speedy means through the agency of the Court. 1
Section 125(1) opens with the words “if any person having
sufficient means neglects or refuses the maintenance” and Sub-section
(3) of Section 125 provides that “if any person so ordered, fails without
sufficient cause to comply with the order”. Reading these two expression
together, it is obvious that the power under Section 125(3) of the Code
would be exercised and the husband could be detained in jail provided it
is established that at the time of passing the order he has means to pay
and still he declines to comply with the order. Unless the Magistrate
records the finding that the petitioner has means to pay and still declines
to pay, the petitioner could not have been ordered to be detained in jail. 2
In one case it was submitted that under Section 125(3), in the first
instance a warrant to levy the amount as fine should be issued and the
sentence of imprisonment could be passed only if the amount remains
unpaid after the execution of the warrant. Section 421 Criminal
Procedure Code, 1973 provides the procedure for issuing a warrant for
levy of fine. In this case, no such warrant were issued but the order of
the learned Magistrate showed that the husband who appeared in the
Court in response to a notice issued in a miscellaneous petition admitted
that the amount has not been paid and he also had a representation to
make. Under these circumstances, it was held that no useful purpose
would have been served by issuing warrant. 3
However it was observed that in the first instance, a warrant of
attachment of the moveable and immoveable properties must be issued to
satisfy the arrears of maintenance and if after the execution of the
warrant, the whole or any part of the arrears remains unpaid, then and
then alone imprisonment of the defaulter can be ordered by the
Magistrate. The words “for the whole or any part of each month’s
allowance remaining unpaid after execution of the warrant” in Section
125(3) of the Code, will have no meaning if it was the intention of the
legislature that even without recourse to a warrant of attachment a
warrant for imprisonment could be issued. The issue of warrant of
attachment of property is a condition precedent to the issue of a warrant
1 Bhure vs. Gomatibai, I (1982) DMC 20 MP.

2 Abdul Afif Puddan Ansari vs. Jubedabai, II (1982) DMC 448
Bombay.
3 P. Ataullah vs. Memunisa Begum, II (1984) DMC 448 AP.
to imprisonment. The warrant of arrest directed to be issued without first

having issued a warrant of attachment of property is illegal. 1
Section 488 (3) dealing with the enforcement of the order of
maintenance only provides that the Magistrate may “for every breach of
the order, issue a warrant for levying the amount due in manner
hereinbefore provided for levying fines……..” “Hereinbefore provide”
means the procedure laid down for warrants for levy of fine under
Chapter XXVIII of the Cr.P.C. relating to execution. That only means
that the amount under order for maintenance is realizable only in the
manner provided for levying fines. That does not make the maintenance a
fine within the meaning of either the Indian Penal Code or the Criminal
Procedure Code. It is only realizable in the manner fines are realized.
Therefore, section 67 I.P.C. cannot limit the right of the Magistrate to
pass the sentence under Section 488 (3) Cr.P.C. to pass a sentence other
than simple. On the other hand section 53 under Chapter III of the Indian
Penal Code in describing the punishment mentions under the fourth head
“Imprisonment which is of two description, namely (1) rigorous, that is
with hard labour; (2) simple”. If that is in the dictionary provided by the
Statute itself, the word “imprisonment” may mean either simple of
rigorous as the case be, and unless the language of the section either by
expressly or by most compelling necessity limit the type of imprisonment
then the right to pass an order of sentence cannot be limited and may be
either simple or rigorous. 2
Section 67 of the Indian Penal Code begins with the significant
expression “If the offence be punishable with fine only”. A violation
under Section 488 (3) of the Code of Criminal Procedure 1898 is not an
“offence punishable with fine only” within the meaning of that
expression. Indeed it is not an “offence” in the sense understood in the
Indian Penal Code or under the Criminal Procedure Code, 1898. Section
488 really is a speedy way of providing for the maintenance of neglected
wives and children under Chapter 36, Criminal Procedure Code. From
that point of view it was held that it was strictly not an offence within
the meaning of section 67 of the Indian Penal Code. 3
If an offer is made to maintain a wife by the husband on
condition of her living with him and the wife refused to live with him,
1 Amarjit Kaur @ Ajmer Kaur vs. Baldev Singh, II (1982) DMC 426
P&H.
2 Moddari Bin vs. Sukdeo Bin, AIR 1967 Cal 136 (DB): 70 Cal WN
686: 1967 Cri LJ 335.
3 Moddari Bin vs. Sukdeo Bin, ibid.
Summery remedy—Enforcement of order 349
the Magistrate has to consider grounds of refusal stated by her. If the

Court is satisfied that there is just ground for so doing, the Court may, in
spite of such offer made by the husband, make an order regarding
enforcement. It is, therefore, evident that the Magistrate has got to make
an inquiry when such offer is made. No doubt, it will be for the husband
to show that there was sufficient cause for non-compliance with the
order. The burden will lie on the husband to prove sufficient cause. Thus,
the Magistrate must hold an inquiry as to sufficiency of the cause shown
by the husband and he cannot order the issue of a distress warrant
without satisfying himself as the sufficiency of the cause shown. 1
An order for maintenance remains in force unless it is cancelled
by the Magistrate in appropriate proceedings under sub-section (5) of
Section 488 of the old Code. The mere fact that after the passing of such
an order, the parties had lived together and resumed cohabitation for a
few months, does not make the order inexecutable. 2
However in another case it was held that it would not lie in the
mouth of such husband to say that even after he has given divorce, he is
prepared to take his wife back and prepaid to maintain her if she is
prepared to stay as his wife because she has not accepted the divorce.
Any reasonable and prudent man in such sets of circumstances will
refuse to ask the wife whether she is willing to go with her husband or
not end if she is not ready and willing them on what ground she is not
ready and willing? Because when the answer is so obvious that any
woman would not like to go and stay with such a husband who has
already given her divorce and had driven her our with the clothes put on
by her. Therefore, it was held that the learned Magistrate is not required
either to hold an inquiry or to call upon the wife to ascertain whether she
is ready and willing to go to her husband’s house or not and if she is not
ready and willing to go to her husband’s house, then why she is not
prepared to go to her husband? 3
The second question arises in the matter is that when she, herself
filed a Recovery Application and in the same if the husband comes with
such type of lame excuses and defences that he wants to take back his
wife, only with a view to avoid payment of maintenance, in such case the
learned Magistrate is not required to call upon the wife to assert from her
whether she is ready and willing to go to her husband or not? Such type
1 Nileshkumar Rameshchandra Dhruv vs. State of Gujarat, I (1991)

DMC 280 Guj.
2 I.D. Singh vs. Prabha Singh, AIR 1967 P&H 374: 1967 Cri LJ
1050.
3 Gani Ali vs. Savabai Gani, I (1993) DMC 238 Guj.
of inquiry or exercise by the learned Magistrate is contemplated in cases

where once the learned Magistrate has awarded maintenance and
thereafter some special further development has taken in the matter and
the circumstances have been changed, and if the husband comes out with
a bona fide offer to maintain his wife on condition of her living with him
in such cases only and if the Magistrate is satisfied, that the wife is
required to say whether she is ready and willing to stay with her husband
in the changed circumstances. But before that the Magistrate has to see
that the husband was regularly paying the maintenance amount which is
awarded against him till the date on which the comes out before the
Magistrate with her offer to maintain his wife on condition of her living
with him. Second proviso to Sub-section (3) of Section 125, Cr. P.C.
does not provide that in each and every case, the learned Magistrate has
to hold an inquiry. It all depends upon the facts and circumstances of the
case. In each the learned Magistrate has to come to his own conclusion
that whether he should call upon the wife when the offer is made by the
husband to maintain his wife on condition of living with him and if he is
satisfied that in the case before him, the wife is required to be called
upon then only he has to call upon the wife to state that she is willing to
stay with her husband or not. If the wife refuses to live with her husband,
then the learned Magistrate has to consider the ground of refusal stated
by the wife and thereafter the learned Magistrate has to pass an
appropriate order. Second proviso to Sub-section (3) of Section 125 Cr.
P.C. itself also provides that notwithstanding such offer made by the
husband to maintain his wife, on condition of her living with him, the
learned Magistrate can pass such order under Section 125 Cr. P.C. 1
Ex parte order
The Family Court exercising the jurisdiction under Section
7(2)(a) of the Family Court Act in a petition filed under Section 125 of
the Criminal Procedure Code, 1973 for maintenance, on being satisfied
that there is a prima facie case for maintenance and it is necessary to
pass ex parte order of maintenance has the jurisdiction to pass ex parte
order of interim maintenance. Such interim order can also be revised on
being requested by the respondent by filing an application. Such an order
of maintenance shall always be subject to the final adjudication on the
main petition. 2
1 Gani Ali vs. Savabai Gani, I (1993) DMC 238 Guj.

2 G.L. Jagadish vs. Shamantha Kumari, I (1990) DMC 552 Kar.
Summery remedy—Ex parte order 351
On a plain interpretation of sub-section (2) of section 126 made

in Smt Sulochana Sahu vs. Baman Ch. Sahu, 1 it has been observed
as under:—
“Thus the sum and substance of the principle of law is that if that
person against whom and order for payment of maintenance is
proposed to be made is wilfully avoiding service or wilfully
neglecting at attend the Court, the Magistrate may proceed to
hear and determine the case ex parte. Before proceeding to hear
and determine the case ex parte, a specific order has to be
recorded by the Magistrate to the effect that the person against
whom an order for payment of maintenance is proposed to be
made is wilfully avoiding service or wilfully neglecting to attend
the Court. An ex parte order of maintenance may be set aside for
good cause shown on an application made within the period of
limitation subject to such terms including terms as payment
of costs.”
It is clear and mandatory on the part of the Judicial Magistrate to
record the evidence of the proceeding under Section 125 of the Code in
the presence of the person against whom an order for payment of
maintenance is proposed to be made or in the presence of his pleader if
he is exempted from personal appearance and has been permitted to be
represented by his pleader. The exception to the above rule finds in the
proviso below it. If the Judicial Magistrate finds that the person against
whom an order for payment of maintenance is proposed to be made is
wilfully neglecting to attend the court, in that event, he may proceed to
hear and determine the case ex parte, but before doing so the Judicial
Magistrate must record his satisfaction that the person is wilfully
neglecting to attend the court. 2
In one case the personal attendance of the petitioner/non-
applicant had not been dispensed with by the court. That being so, it was
held that it was the responsibility and duty of the petitioner to be present
in court. The court under the relevant provision of Section 125 of the
Code had already issued, the first notice for his appearance and in
response to that the petitioner had appeared. Thereafter, sending of any
notice whatsoever is neither contemplated under Section 125 of the Code
nor there is any provision, whatsoever, for sending such notices in the
entire Criminal Procedure Code. Even in a case where there is a death of
a party, there is no provision to send any notice whatsoever to the heirs
1 1986(1) OLR 558

2 Biswanath vs. Susama Devi, I (1988) DMC 43 Orissa.
of the deceased. Such provisions are only available in the Civil

Procedure Code. 1
Before proceeding to hear and determine the case ex parte, the
Magistrate has to apply his mind to the question whether the opposite
party is wilfully avoiding service or wilfully neglecting to attend Court
and be satisfied that there has been such wilful conduct on the part of the
opposite party. The Magistrate cannot proceed ex parte without arriving
at such satisfaction. It is desirable for the Magistrate to pass a formal
order recording such satisfaction and giving reasons for such
satisfaction. However, the condition precedent for proceeding ex parte is
the satisfaction based on reasons and not the formal order. The
satisfaction must be discernible from the circumstances evident from the
record. There is a conflict of opinion among various High Court on the
need for a formal order. We think that the more informed view is that a
formal order is desirable, but the absence of a formal order would not
vitiate the order or the proceedings, so long as the record evidences
circumstances which show the existence of reasons to satisfy the
Magistrate on this score and which imply such satisfaction. 2
Ex parte order & inherent powers

Under Section 125 the person who is proceeded ex parte has the
remedy to apply to the magistrate that for a stated good cause he was
unable to appear and that the ex parte order may be set aside against him.
If the party does not follow that remedy provided by the Code the power
under Section 482 is not to be resorted to because there is a specific
provision in the Code for the redress of the grievance of the aggrieved
party. Power under Section 482 has to be exercised sparingly to prevent
abuse of process of any court or otherwise to secure the ends of justice. 3
It a party makes an application to the Magistrate for setting aside
the ex parte order and he does not accede to the request the party may
file a revision under Section 397 and also invoke the powers of High
court under Section 482 because he can well content that there has been a
denial of justice to him because his application for setting aside the ex
parte order has wrongly been rejected. 4
1 Sardar Harvindar Singh vs. Amrit Kaur, II (1983) DMC 364 Patna.
Cri LJ 224.
3 Makhdum Ali vs. Nargis Bano, I (1983) DMC 40 Delhi.
4 Makhdum Ali vs. Nargis Bano, ibid.
Summery remedy—Finding of Civil Court 353
When the husband chose not to take this remedy, exercise of the
inherent powers was declined for following two reasons:
‘One that the remedy under Section 126 has not been pursued.
Secondly the husband’s conduct throughout the proceedings over
a period of nearly three years has not been meritorious. He has
been appearing, disappearing and reappearing in the case at his
will and pleasure. In a word his behaviour is not deserving of
meritorious consideration.’ 1
Finding of Civil Court
Section 127(2) does not require that the order of the civil court
should be subsequent to the order of the Magistrate. The sub-section will
apply even where the order of the civil court is antecedent but was
brought to the notice of the Magistrate later on. It is urged on this basis
that if an order made under Section 125 of the Code has got to be varied
or cancelled in consequence of a decision of a competent civil court, then
such an order can not should not be made at all.
In respect of Section 488 of the Repealed code 9the predecessor
of Section 125), it was observed 2 that the Magistrate’s jurisdiction to
settle maintenance is only auxiliary to that the civil court:
‘The order to the Magistrate under Section 125 of the Code is a
summary order. The Magistrate cannot usurp the jurisdiction in
matrimonial disputes possessed by the civil court and the
provisions Chapter IX (New) of the Code are subjected to any
final adjudication made by a civil court between the parties
regarding status and civil rights.’ 3
Desertion has not been defined in the Hindu Marriage Act.
Essence of desertion is forsaking and abandonment of one spouse by the
other without reasonable cause and without consent and against the wish
of the other. It is a total repudiation of obligation of marriage. When the
Matrimonial Court decreed the suit for divorce on the finding that the
wife has deserted the petitioner for a continuous period for more than
two years it has to be accepted that she refused to live with her husband
without any sufficient reason. The question therefore was if this finding
1 Makhdum Ali vs. Nargis Bano, I (1983) DMC 40 Delhi.

2 Raghubar v. Emperor, AIR 1915 Oudh 113.
3 Sethurathinam Pillai vs. Barabara and Dolly Sethurathinam, 1971
(3) SCC 923: 1970 CAR 245: 1970 UJ 505: (1970) 1 SCWR 589;
See also Bhagwan Dutt vs. Kamala Devi, 1975 Mad LJ (Cri) 81:
1974 Pun LJ 495: 1975 (2) SCR 483: 1975 (2) SCC 386: AIR 1975
SC 83 : (1974) 2 SCWR 469 and Venkayya v. Paidanna AIR 1923
Madras 707 relied in Kuldeep Kumar vs. Chander Kanta, I (1984)
DMC 48 Delhi.
of the Matrimonial Court was binding on the learned Magistrate while

dealing with an application under Section 125 Cr.P.C. It was observed:
‘The factor to be considered by the learned Magistrate in dealing
with an application under Section 125 are those which are
prevailing at least on the date of the order. As it a appears the suit
was decreed on 14-1-1983. The impugned order under Section
125 was passed on 5-10-85. Therefore on the date of order there
was no obligation on the part of the wife to live with her husband.
Accordingly Sub-section (4) of Section 125 will have no
application in the facts of the instant case. It is true that even
though the husband has obtained a decree of divorce against the
wife on the ground that she refused to live with him without any
sufficient reasons even then he will have to suffer an order under
Section 125 Cr.P.C. The erring party in such cases even though
the wife, the husband has to maintain her for no fault of his own.
Since Section 125 Cr.P.C. was meant to prevent destitution and
vagrancy. Even in such a case the wife will be entitled to an
order. Section 125 (1) has provided that the wife includes a
woman who has been divorced by or has obtained a divorce, from
her husband and has not remarried. Accordingly, the expression
“wife” for the purpose of Section 125 includes a divorced woman
and the ground of divorce is not a matter for consideration.’ 1
Finding of Cruelty
In one case it was found that if the evidence of the husband is
read as a whole, it becomes clear that he never wanted to admit nor has
be admitted that he was beating his wife. He only wanted to show that he
was willing to keep her on any terms. He was even wiling to stay
separately from his parents if that was the desire of the wife. He also
showed his willingness to execute any type of writing if that would
satisfy his wife. Therefore, his willingness to keep her after executing a
writing that he would not beat her cannot be said to be an admission on
his part that he was in the past beating his wife. It also appears that the
learned Magistrate was not inclined to give due importance to the
admission made by the father of the applicant that it was the husband
who had brought wife on scooter to his house and he left her there. The
learned Magistrate held that her version that she was beaten and driven
out from the house is quite consistent with the circumstance that her
husband had taken her to her father’s house on a scooter. It was
observed:
1 Biswanath Saha vs. Sikha Saha, II (1986) DMC 321 Calcutta and
Goswami Babupuri Shankarpuri vs. Bhawatiben, II (1983) DMC 29
Gujarat relied in Shantilal Chhaganlal Talati vs. Ashokbhai
Chimanlal Desai, I (1986) DMC 103 Gujarat.
Summery remedy—Formal application 355
‘It appears that the learned Session Judge in view of these two
infirmities in the judgment of the learned Magistrate thought it fit
to re-appreciate the evidence and record his own findings. It
cannot be said that the learned Session Judge has committed any
error in re-appreciating the evidence and recording his own
finding in view of the aforesaid infirmities in the judgment of the
trial court. That which was regarded as an admission cannot be
regarded as the admission of beating nor is it possible to believe
the version of the appellant that she was beaten and driven out
from his house is consistent with the circumstances that it was
her husband who had brought her on a scooter to her father’s
house and left her there. The learned Session Judge after
reappreciating the evidence on record, recorded a finding that it is
not proved that she was beaten and driven away by the husband.
That is finding of fact and unless it is shown that the finding is
unreasonable this Court will not interfere.’ 1
Formal application
The Section 126 opens with the words “Proceedings may be taken
against any person.” The phrase “proceedings may be taken against any
person” is very important. It does not indicate that the proceedings be
taken on an application being filed by a person who claims maintenance.
Either Section 125 or Section 126 does not contemplate any formal
application to be filed by any person whomsoever. In a given case the
attention of the learned Magistrate may be drawn by some welfare
institution or by any public spirited social worker that a helpless wife or
the helpless children or parents as the case may be are being neglected
by a person who is otherwise bound to maintain them under the law and
that such person is neglecting and refusing to maintain them. On such
information being received the learned Magistrate himself may draw a
memorandum of the information received by him and may direct the
office to treat such memorandum of information as an application for
maintenance. On such memorandum which is treated as an application he
can issue a notice against the person, liable to provide maintenance.
There is nothing in the Code to show that such a procedure cannot be
adopted by the learned Magistrate. This view is in consonance with the
basic object underlying the provisions for providing maintenance. The
basis object is to prevent vagrancy by compelling a person to support his
wife or child or father or mother unable to support himself/herself.
Another principal object is to device speedy summary remedy for
providing maintenance. When such is the benevolent object underlying
the provisions of maintenance, ‘Setan’ of technicality cannot be allowed
1 Dhanlaxmiben Anilkumar Padhiar vs. Anilkumar Chaturbhai

Padhiar, II (1986) DMC 311 Gujarat.
to stand in the way of dispensation of justice. The halpless lunatic cannot

be asked to wait indefinitely or to wait till next birth. If that be so, the
entire provision of Section 125 to 128 would become a dead letter
of law. 1
Fraudulent marriage
Where consent to a marriage has been obtained by force or fraud,
such a marriage is invalid unless ratified after the coercion has ceased or
the duress has been removed, or when the consenting party being
undeceived, has continued the assent. 2
In this case, it was found that the material on record was totally
short coming to any finding either on the question of force or fraud. The
respondent’s own case on oath in the proceedings had been that
petitioner was his wife. It was therefore held that the present proceedings
would, therefore, have to be considered as decided on the assumption
that respondent and petitioner are husband and wife of each other. It was
however clarified that the above construction was placed only in the
extremely limited context of a summary proceeding for maintenance
under Section 125 of the Code of Criminal Procedure. It was held that
nothing stated or observed in the proceedings can in the least affect the
rights and liabilities of either of the parties in any matrimonial
proceedings as such instituted by one against the other. If any such
proceedings are instituted the same will have to be decided on their own
merits and in accordance with law irrespective of the observations made
in summary proceedings and irrespective of the order passed in the
present proceedings. 3
Illegitimate marriage
For a woman claiming maintenance under Section 488, Criminal
Procedure Code it is essential for her to establish that she was the wife of
the opposite party in accordance with the provisions of the personal or
the Civil law applicable regarding the marriage between the parties. It
follows, therefore, that what is contemplated by the term ‘wife’ referred
to in Section 488, Criminal Procedure Code is legally wedded wife in
accordance with the Personal Law of the parties or the Civil Law
governing the marriage between the parties. It would not, therefore,
cover the case of a women whose marriage with the respondent is void
1 Shantilal Chhaganlal Talati vs. Ashokbhai Chimanlal Desai, I

2 Meharunnishabai vs. Andul Razak Mohammed Ayub, II (1983)
DMC 306 Bombay.
3 Meharunnishabai vs. Andul Razak Mohammed Ayub, ibid.
Summery remedy—Illegitimate marriage 357
ab initio being in contravention of the personal or the Civil Law

governing their marriage. A woman would be deemed to be a wife for the
purpose of this section to be that woman who is a legitimate wife by
reason of a valid marriage according to the law governing the parties. It
the legislature had intended to give the benefit of this section for the
grant of maintenance to all such woman who were not legally wedded
wives but otherwise married to the respondent, then no distinction could
have been made between the wife and the child, held entitled to claim
maintenance by making a reference of entitlement to “legitimate or
illegitimate child.” It becomes very clear from the expression used in the
second part thereof were a reference is made to “legitimate or
illegitimate child” who can claim maintenance under Section 488(1) of
the Code. The legislature was clear in its mind to apply this provision in
respect of child either legitimate or illegitimate born of a woman
neglected or refused to be maintained by his or her father. If it was
intended to include any illegitimate wife, the legislature could have said
so, just as it said in respect of children. It was held therefore, that no
illegitimate wife or a woman claiming to be the wife whose marriage is
ex facie illegal can claim any maintenance under this section. 1
If it is held that any woman who has solemnized the marriage
with the respondent would be deemed to be a wife for the purposes of
this section, the same would amount to doing violence to the provisions
of Section 488, Criminal Procedure Code and would also lead to
disastrous results which would be against the public interest and the
social object sought to be achieved by making a provision attaching
sanctity to the institution of marriage. Law cannot be interpreted in a
manner which leads to immorality by permitting the woman to lead
immoral life with the hope that if subsequently deserted, they would be
entitled to claim maintenance for leading immoral life with the man. 2
Taking a contrary view it has been held that the husband is not
without any remedy in that behalf. He is always at liberty to agitate and
get the marriage cancelled if he thought it necessary under a regularly
constituted suit or petition under the Hindu Marriage Act or any other
law for the time being in force. The provisions under Section 125 are
summary in nature, and provides for swift and cheap remedy against a
person who deprives his wife or neglects or refuses to maintain her or his
minor child, legitimate, or illegitimate, unable to maintain itself. Section
125 prescribes a summary procedure. The findings are not final and the
parties are at liberty to agitate their rights in a civil court. The summary
1 Titroo vs. Mst. Morni, II (1988) DMC 162 J&K.

2 Titroo vs. Mst. Morni, ibid.
procedure does not cover entirely the same ground as the civil liability of
the husband or father or son under Personal Law to maintain his wife,
child or parent. When substantial issue of civil nature are raised, the
remedy lies only in civil courts. If that is so, there is no substance in the
contention of the husband that the revisional court has not considered the
legal issue involved in the case. The husband is not without any remedy
and this case being one of summary nature and when the point, now
raised, was not raised at the earliest point of time, this court would not
entertain the said ground at this belated stage. 1
However the view of the Supreme Court is that the attempt to
exclude altogether the personal law applicable to the parties from
consideration should be repelled. The section 125 of Criminal Procedure
Code, 1973 has been enacted in the interest of a wife, and one who
intends to take benefit under sub-section (1)(a) has to establish the
necessary condition, namely, that she is the wife of the person
concerned. This issue can be decided only by a reference to the law
applicable to the parties. It is only where applicant establishes her status
on (or) relationship with reference to the personal law that an application
for maintenance can be maintained. The appellant cannot rely on the
principle of estoppel so as to defeat the provisions of the Act. So far as
the respondent treating her as his wife is concerned, it is again of no
avail as the issue has to be settled under the law. It is the intention of the
legislature which is relevant and not the attitude of the party. The
marriage of a woman in accordance with the Hindu rites with a man
having a living spouse is a complete nullity in the eye of law and she is
not entitled to the benefit of Section 125 of the Code. 2
Ingredients to be proved
The wife is required to aver in the petition following things:
(i) she is the wife of the non-applicant;
(ii) that the non-applicant has sufficient means, yet he is refusing
or neglecting to maintain her; and
(iii) that she herself is unable to maintain herself.
To attract the provisions of Section 125 of the Code, it is
necessary to establish that a person having sufficient means neglects or
refuses to maintain his wife who is unable to maintain herself. Sub-
section (4) of the said section provides that a wife who is living in
1 Siddalingappa vs. Yellabai, I (1983) DMC 278 Karnataka.

1988 SC 644: 1988(1) SCC 530: 1988 SCR 809: 1988(1) Scale 184:
1988(1) JT 193.
Summery remedy—Interference in inherent powers 359
adultery or without sufficient reasons refuses to live with her husband or

if they are living separately by mutual consent, will not be entitled to
receive any allowance from her husband. This provision provides a
speedy remedy against starvation by way of a summary procedure. It is
not co-extensive with the civil liability of a husband. It gives effect to
the fundamental and natural duty of a man to maintain his wife. The
basic idea behind this provision is that no wife should be left helpless so
that she may be tempted to commit crime. This provision enables a
magistrate to take summary action for prevention of destitution. 1
In one case there was abundant evidence that the parties were not
residing together. There was evidence that the petitioner husband ill-
treated the wife and has been living with another woman. So, the wife
had sufficient reason for not living together with the husband. It was
held that all the requirements of Section 125 were fulfilled. 2
However it was found in one case that the Revisional Court had
completely misdirected itself in considering the recitals in the
application for maintenance filed by the wife under Section 125 of
Criminal Procedure Code as well as the statements made by her in her
deposition. The applicant in her deposition stated that “she was not doing
any work and she was completely dependent upon her parents”. It was
held that this statement clearly demonstrated that the applicant in no
uncertain terms deposed that she did not have any means to maintain
herself and it totally depending upon her parents for her maintenance. It
was held that the Court completely misread the deposition of the
applicant and further came to a wrong conclusion that the applicant had
not specifically complied with mandatory requirement of Section 125 of
Criminal Procedure Code, therefore, the impugned order was held to be
misconceived and unsustainable in law. 3
Interference in inherent powers

It is not for High Court to go through the whole case over again
or to find out whether this court could interfere with the findings on a
different approach to the question which this Court may choose to make.
Such an exercise would be uncalled for and beyond the scope of the
power under Section 482. The Court should guard against such a
situation and should not be tempted to interfere merely because, if the
1 Purnamasi Pradhan vs. Suresh Pradhan, I (1986) DMC 79 Orissa;

Nasimbanu Minor Girl Through Fatmaben vs. Yusufbhai
Ismailbhai Munshi, I (1985) DMC 90 Gujarat.
2 Edul Zamina vs. Shekila Begum, II (1986) DMC 290 Calcutta.
3 Bhagirathibai @ Bhagwati vs. Ashok, II (1999) DMC 429 Bombay.
court has occasion to go through the evidence afresh perhaps it may

choose to take a view different from that taken by the court below. 1
Where right of maintenance to a woman is denied on untenable
grounds, quashing such an order can be considered the object of securing
the ends of justice within the meaning of Section 482 of Criminal
Procedure Code. 2
The wife in order to claim maintenance from her husband has to
prove that her husband, having sufficient means, has neglected or refused
to maintain her and further that she was unable to maintain herself. The
ingredients of Section 125(1) Criminal Procedure Code, which the wife
has to prove is the neglect or refusal on the part of the husband to
maintain her and further that she is unable to maintain herself. In the
instant case, there is dispute regarding the fact the petitioner/husband has
neglected or refused to maintain the respondent/wife. There is also
dispute regarding the fact that the respondent/wife is unable to maintain
herself. Till the respondent/wife proves these ingredients against the
husband and shows that she has legal and justifiable reasons for living
separately from her husband and that she is unable to unable to maintain
herself, the petitioner/husband would be required to pay maintenance to
her till the reasons for separate living disappear and the husband is
willing to keep his wife with him. The ingredients of Section 125(1)
Criminal Procedure Code are dependents upon proof of the allegations
contained in the petition. Undoubtedly, Section 397(3) Criminal
Procedure Code bars a second revision filed by the same person, who has
already availed the remedy of a revision before the Sessions Judge.
There is also no dispute about the fact that the bar of Section 397(3)
Criminal Procedure Code cannot be overcome merely by filling an
application under Section 482 Criminal Procedure Code if in substance
and reality the intention of the party is to file a second revision. In case
the learned Additional Session Judge while dealing with the revision has
not decided the revision according to law, then this Court can certainly
intervene under its inherent powers under Section 482 Criminal
Procedure Code. 3
Interim maintenance
The proceeding under Section 125 Criminal Procedure Code are
of a summary nature. They are for the protection of deserted wife, minor
1 M. Chandran vs. B. Jagadamma, II (1982) DMC 174 Kerala.

DMC 199 AP.
3 Kulwant Singh Bhullar vs. Sukhwant Kaur, 1999(1) HLR 155 P&H.
Summery remedy—Justification to live separately 361
children, mother or father and to save them from starvation. When the
learned Magistrate himself found that the petitioner was adopting
delaying tactics in disposal of the case, it was held that Magistrate
himself should have awarded the interim maintenance to the mother,
irrespective of the fact whether such application was made or not. 1
Interpretation
Section 125 Cr.P.C., having a social purpose, its various clauses
in their interpretation must receive a compassionate expanse by the Court
in its generous jurisdiction, a broader perspective and appreciation of
facts and their bearing on essential ingredients must govern the ultimate
verdict not chopping little logic or tinkering with the niceties of
interpretation and technicalities of law. 2
Irregularity in recording evidence

Section 465, Criminal Procedure Code is clear on the point that
the form must not override the substance and such error in procedure,
even if any, is curable unless it has resulted in failure of justice Section
465(2) Criminal Procedure Code lays down the test about the failure of
justice: it has been pointed out that even such objection could and should
have been raised at an earlier stage in that proceedings and had not been
raised it shall be presumed that there was no failure of justice; since such
objection was never raised on behalf of the revisionist in the court below
so this irregularity even, if any, is not sufficient to reverse the
impugned order. 3
Justification to live separately

When the petitioner has made a false allegation of adultery in the
written statement, this itself constitutes mental cruelty to the wife even
though physical cruelty as such has not been found proved. 4
If the false allegation of unchastity has been made with a view to
defeat the wife’s genuine claim of maintenance or to defame her before
the public, it will certainly give a reasonable ground for woman to refuse
to go with her husband and still to claim maintenance. But if it has been
1 Monoharlal Mulchand Gandhi vs. Savitaben Mulchand, I (1994)

DMC 352 Gujarat.
2 Gafoor Ahmad vs. Amnabai, II (1986) DMC 389 MP.
3 Moti Lal vs. Lal Mani, II (1984) DMC 159 All.
4 Jarinaben Jafarbhai Ajmeri vs. Jafarbhai Abdulbhai Ajmeri, II
(1985) DMC 415 Gujarat; Subhashchandra vs. Vimla, I (1985)
DMC 496 MP; Urmila Devi vs. Ravi Prakash, II (1984) DMC 339
Delhi; Madan Mohan Maity vs. Rita Rani Maity, II (1982) DMC 1
Calcutta.
made not by any such motive but under pressing circumstances and with
the aim of getting back the wife from the possession of others, and
further if the husband recants that allegation and is sincerely willing to
keep the woman with him, there will be no justification for the woman
within the meaning of Section 488, Criminal Procedure Code to refuse to
go with the husband. 1
The crucial date for ascertaining whether a wife is entitled to live
separately and maintenance is the date on which the Magistrate passes
the order. The Magistrate is required to take into consideration the facts
and circumstances existing on that date. In this case it was found that
even assuming that the wife was in the wrong in leaving the husband,
still on the date when the Magistrate passed the order, she was entitled to
live separately because of the action of the husband in contracting
second marriage. The husband contracted second marriage during the
pendency of proceedings under Section 125 of the Code. Once the
husband contracted the second marriage then the first wife was entitled
to live separately. Therefore it was held that whatever may have
transpired earlier, that loses all its relevance when on the date of the
order passed by the Magistrate the husband had contracted
second marriage. 2
The separate living must be the result of a deliberate and express
agreement between the parties. A hasty rejoinder to a husband, who in
the course of a quarrel was manoeuvring for a consent from a wife, is not
a consent within the meaning of the section. Similarly, living separately
under an agreement settled by a panchayat to whom disputes between the
husband and wife had been referred is not living separately by mutual
consent. “Mutual consent” as used in sub-section (4) means a consent on
the part of the husband and wife to live apart, no matter what the
circumstances may be. Where a wife refuses to live with the husband on
some specific ground such as cruelty, or the fact that he is keeping
another wife, it cannot be said that the husband and wife are living apart
by mutual consent if the husband does not insist that the wife should live
with him. Where a husband is unwilling to allow his wife to live him, or
has taken a second wife, the only course open to such wife would be to
live apart and if she, under such circumstances agreed to accept
maintenance and live apart, such separate living would not be deemed to
be the result of mutual consent. The test therefore should be to find out if
1 Prabhawati Devi vs. Radhey Shyam Tripathi, AIR 1965 All 598:
1965 (2) Cri LJ 705 (2).
2 Mustafa Shamsuddin Shaikh vs. Shamshed Begum Mustafa
Shaikh, I (1991) DMC 34 Bom.
Summery remedy—Legitimacy of child 363
the agreement for separate living and payment of maintenance was the
outcome of the desire of both parties, independently reached by each of
them, or if one of the parties was forced to submit by circumstances to
such agreement. Where the wife is not prepared to live in a separate
house but insists on living with the husband, but he starts living separate,
or where the husband having an option to live with his wife chooses to
live separate, it cannot be said that they are living separately by mutual
consent. But where each party finds it impossible to live amicably and
comfortably with the other and each party and there is consent that they
should live separately, the separate living is by mutual consent. If the
Court finds that the husband and wife are living separately by mutual
consent, no order can be passed under the section, as the Criminal Court
is not intended to be used for creating facilities for separation between
husband and wife or for fixing alimony. 1
Legally wedded wife

The term “wife” appearing in Section 125(1) of the Code means
only a legally wedded wife. 2
Legitimacy of child
When the learned Magistrate after considering the evidence, as adduced
by the parties, held that the appellant No. 1 was not the wife of the
respondent and he further held on the basis of the evidence on record that
the appellant No. 2 was the illegitimate child of the respondent; after
considering the evidence on record it was held that the learned Judge of
the High Court committed an error in making a re-assessment of the
evidence and coming to a finding that the appellant No. 2 was not the
illegitimate child of the respondent. The High Court in its revisional
jurisdiction was not justified in substituting its own view for that of the
learned Magistrate on a question of fact. 3
should have been conceived even before the consummation of the
1 Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi, AIR

1965 Manipur 49: 1965 (2) Cri LJ 785.
2 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, II (1982)
DMC 434 Bombay.
3 Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986(1) Scale 603:
1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj LJ 788.
marriage. Giving birth to a viable child after 28 weeks’ duration of

pregnancy is not biologically an improbable or impossible event. It was
held that the learned Judge had completely lost sight of Section 112 of
the Evidence Act, lays down that if a person was born during the
continuance of a valid marriage between his mother and any man or
within two hundred and eighty days after its dissolution and the mother
remains unmarried, it shall be taken as conclusive proof that he is the
legitimate son of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have
been begotten. This rule of law based on the dictates of justice has
always made the Courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to necessarily
warrant a finding that the child could not at all have been begotten to the
father and as such a legitimation of the child would result in rank
injustice to the father. Courts have always desisted from lightly or
hastily rendering a verdict and that too, on the basis of slender materials,
which will have the effect of branding a child as a bastard and its mother
an unchaste woman. 1
If the wife was pregnant even at the time of the marriage she
could not have concealed that fact for long and in any event the husband
would have come to know of it within two or three months of the
marriage and thereupon he would have immediately protested and either
discarded the wife or reported the matter to the village elders and
relatives and sought for a divorce. On the contrary, in this case, the
respondent had continued to lead life with the appellant in a normal
manner till the birth of the child. Even the confinement appears to have
taken place in his house as otherwise the child’s birth would not have
been registered in his village. The husband had not disowned the child
immediately after its birth or sent away the wife to her parents’ house. It
was held that such would not have been his conduct if he had any doubt
about the paternity of the child. Moreover, there was an entry in the birth
register setting out the respondent as the father of the child. Though the
husband attempted to neutralise this entry by examining a witness and
making it appear that the entry had been made on the basis of
information given by a third party, the lower Courts refused to give
credence to the vague and uncorroborated testimony of this witness. It is
also significant to note that the husband had allowed eleven months to
pass before effecting a divorce. It was held that by his inaction for such a
long period the husband had given room for inference that the divorce
(SC) 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr)
237: 1987 All WC 627.
Summery remedy—Limitation for enforcement 365
may have been effected for other reasons and not on account of the wife
giving birth to a child conceived through some one else. It was also held
that even if the child had been born after a full-term pregnancy it has to
be borne in mind that the possibility of the respondent having had access
to the appellant before marriage cannot be ruled out because they were
closely related and would therefore have been moving in close terms. All
these factors negate the plea of the respondent that the minor child was
not fathered by him. In these circumstances it was held that the proper
course for the High Court, even if entitled to interfere with the
concurrent findings of the Courts below in exercise of its powers under
Section 482, Cr.P.C., should have been to sustain the order of
maintenance and direct the respondent to seek an appropriate declaration
in the Civil Court, after a full-fledged trial, that the child was not born to
him and as such he is not legally liable to maintain it. Proceedings under
Section 125, Cr.P.C. are of a summary nature and are intended to enable
destitute wives and children, the latter whether they are legitimate or
illegitimate, to get maintenance in a speedy manner. 1
Limitation
Section 125 Criminal Procedure Code has not restricted the
prohibited any wife to claim maintenance with any period of limitation, a
party is not entitled to plead that claimant has waived her right to claim
maintenance due to the long lapse of 10 or 12 years after she left his
house. 2
In this case it was held that it was possible that due to the
changed circumstances in her parents house, her parents may not be
willing to maintain her and they may not be in a position to maintain her
since other children have grown up and some other problems might have
cropped up in her family. Under these circumstances, the husband was
held not entitled to raise the plea that the wife had waived her right to
claim maintenance after a long lapse of 12 years. 3
Limitation for enforcement

If the maintenance amount is directed to be paid from the date of
its order, an application made under Section 125 (3) Criminal Procedure
Code within one year from such date of grant for realisation of
1987 All WC 627.
3 Golla Seetharamulu vs. Golla Rathanamma, ibid.
maintenance amount so granted is well within the period of limitation

contemplated by the first proviso to Section 125 (3) Criminal Procedure
Code it is only in cases where the order directs payment of maintenance
from the date of application under Section 125(1) Criminal Procedure
Code the question arises as to whether the petition under Section 125 (3)
Criminal Procedure Code for realisation of the maintenance amount
granted is barred for the period beyond one year, though the petition is
filed within one year from the date of grant of maintenance.
Section 125(1) pre-spouses existence of a right to seek
maintenance whereas Section 125 (3) contemplates an order granting
maintenance. In the absence of an order granting maintenance, there does
not lie a petition under Section 125(3) in as much as there is no
maintenance amount due for being realised. Maintenance amount
becomes due if only an order is made granting maintenance. It is from
such date on which it became due that the period of one year as
contemplated by the proviso to Section 125(3) has to be reckoned.
The expression used in the proviso is ‘within a period of one year
from the date on which is became due’. In Stroud’s Judicial Dictionary 1,
the term ‘Due and payable’ is referred to mean liability in respect of
which there had to be payment. In another case 2 the word ‘due’ was
interpreted to mean that dividends are due under the Income Tax Act
when they became payable and not at the time they are declared. So
much so, the term ‘becomes due’ under the Income Tax Act means 3, a
dividend became due on the day it was declared payable and not at the
time it was first announced.
In Law Lexicon the word ‘Due’ is given the meaning as an
existing obligation, an indebtedness a debt ascertained and fixed though
payable in future, and owing and unpaid. According to Bourvier’s Law
Dictionary ‘due’ means what ought to be paid, what may be demanded.
Thus, it was held 4 that the maintenance amount becomes due only after it
is ascertained and fixed by the Court and payable on a date later to such
grant. The right to seek maintenance under Section 125(1) is thus quite
distinct and different from the right to realise the maintenance amount
under Section 125 (3) after it became due.
1 5th Edition
2 Potel vs. IRB (1990) TR 325
3 as interpreted in (1971) 2 All ER page 504 between the same
parties
4 Takkelapally Laxmamma vs. Takkelapally Rangaiah, II (1991) DMC
628 AP.
Summery remedy—Limitation for enforcement 367
The Court is empowered to grant maintenance either from the

date of its order or from the date of application for maintenance. This
power would get rendered nugatory if the past maintenance is limited to
one year in terms of the first proviso to Section 125(3) Criminal
Procedure Code. The Section as a whole has got to be given a
harmonious reading. The interpretation sought to be given by the Public
Prosecutor to the first proviso to Section 125(3) Criminal Procedure
Code by limiting the power under Section 125(2) Criminal Procedure
Code, to one year instead of ‘from the date of application for
maintenance’ was held to amount to permitting a self contradictory
reading to Section 126 Criminal Procedure Code. 1
Section 125 is a beneficial provision intended to help the wife
being saved from destitution in a case where the husband neglects or
refuses to maintain the wife and, therefore, ordinarily, a liberal
interpretation to the said provision can be given, but not at the cost of
violence to the express language used in the provision. The proviso to
sub-section (3) of Section 125 of the Code is clear and categorical terms
puts an embargo on the power of the Magistrate to issue any warrant for
recovery of the amount due unless the application is made to the Court
within a period of one year from the date on which it became due.
Therefore, the Magistrate has a duty to find out the date on which the
amount become due. 2
The order of the Magistrate in this case granting maintenance was
dated 26-4-1978. The matter remained pending in revision before the
learned Section Judge for more than a year, but all the same it cannot be
said that the amount in question was not due during that period. It was
conceded before High Court that the learned Sessions Judge had not
passed any order staying the operation of the Magistrate’s order. In that
view of the matter, it was not possible to hold that the amount in
question did not become due during the period the matter was pending in
revision before the learned Session Judge. 3
Section 125 of the Code is designed to place the right to
maintenance on the pedestal of a statutory right and thereby prevent
destitution. It is in this back ground that the relevant provision has to be
construed. The proviso is only to ensure that the person who has the
order under Section 125(1) of the Code does not sleep over and allow the
arrears to grow. It cannot certainly be construed as giving a technical
1 Takkelapally Laxmamma vs. Takkelapally Rangaiah, II (1991) DMC

628 AP.
2 Bimla Devi vs. Karna Mulia, II (1985) DMC 200 Orissa.
3 Bimla Devi vs. Karna Mulia, ibid.
defence to the defaulting husband to deprive the wife who has been
vigilant and has come to the Court with an application for recovering the
amount of arrears and for an order for the monthly allowance being
regularly paid to her. The prayer for recovering the amounts as and when
they fall due is implicit in the application. In the circumstances of the
case, there was no need during its pendency to multiply applications for
the purpose. Any fresh application would only have been in continuation
of the prayer already made. 1
The first proviso to Sub-sec. (3) of Section 125 Cr.P.C. is clear
and unambiguous. Acquiescence of the opposite party cannot confer
jurisdiction on the Magistrate to enlarge the same. In certain
circumstances, an application can be made for a period beyond one year,
e.g., where a pending application has been closed for statistical purposes
and fresh application is filed for the period covered by earlier application
and the period subsequent thereto etc. 2
The provision has been enacted to prevent person in whose favour
an order for maintenance has been made from being negligent and
allowing the arrears to pile up so that their recovery becomes a hardship
so far as the person from whom recovery is to be made is concerned. The
Court does not enforce more than one year’s arrears. 3
Section 6 dealing with legal disability is applicable in view of
Section 29(2) of Indian Limitation Act, 1963 as the application of
Section 6 there of is not specially excluded under Chapter IX of Criminal
Procedure Code. The minors are not sui juris and the mere fact that they
can be represented by mother, father or other guardians is of no
consequence. Section 6 of the Indian Limitation Act, 1963 keeps the
limitation in abeyance if the person is a minor, insane or an idiot. In so
far as the other order of maintenance under Chapter IX of Criminal
Procedure Code is concerned, once a minor attains majority and if the
said person after attaining of majority is not suffering from any mental
or physical handicap, the maintenance order passed in his favour
automatically disappears. Even then for arrears accrued by the time of
his attaining the majority, petition can be filed within one year of the
attaining of said majority. But, so long as the said minor does not attain
the majority for the enforcement of the order of maintenance, there can
be no fetter of limitation prescribed under the 1 st proviso to Sub-section
1 Loolnchand vs. Hemkanta, I (1986) DMC 431 MP: Bimla Dei vs.
Karna Mulia, II (1985) DMC 327 Orissa.
2 Hagiri Dei vs. Budhiram Behera, I (1982) DMC 332 Orissa: II
(1982) DMC 193.
3 Hagiri Dei vs. Budhiram Behera, ibid.
Summery remedy—Living separately by mutual consent 369
3 of Section 125 Criminal Procedure Code and the said provision has to
be read down that the said limitation is only applicable to major-
maintenance holders and not minor-maintenance holders. 1
Living in adultery
In M. Kanniappan vs. Akhilanadammal 2 it was observed that a
husband is absolved from obligation to maintain a wife living in adultery
on the principle that when the wife has a ‘de facto’ protectorate then the
obligation of the husband to maintain the wife ceases when it has been
voluntarily assumed by some man other than the woman’s husband. This
would be the position when the wife starts living with the one with
whom she committed adultery and is being maintained as if she were his
wife. As the obligation has been fastened on the husband to maintain a
wife due to the anxiety of the Legislature to protect a deserted wife from
the bitter necessity of earning a living by trading on their sex, that
obligation would no longer exist if the same has been voluntarily
assumed by some other man. 3
Living separately by mutual consent

The expression ‘living separately by mutual consent’ occurring in
the provision does not cover living separately due to divorce. In this case
there was a decree of divorce based on mutual consent and this fact, even
in the absence of pleadings, could be considered in the proceeding under
Section 125 of the Code. It was held that the non-applicant being a
divorcee, was under no obligation to live with the petitioner. 4
Where the parties were living separately by mutual consent, the
wife was held not entitled to maintenance under Section 125 Criminal
Procedure Code. It was further held that she may be entitled to
maintenance under the Hindu Marriage Act or in an action for
enforcement of the alleged agreement for maintenance but sub-section
(4) of Section 125 which governs the whole of Section 125 including
Sub-section (1) is a clear bar to her claim for maintenance. 5
Where the separate living proceeds from the common desire of
the husband and the wife live separately whatever the reason for the
desire may be, it is certainly by mutual consent. Where, therefore, since
1 Laxmi vs. Nakka Narauan Goud, I (1994) DMC 224 AP.

2 AIR 1956 Madras 427.
3 Saru Bala Medhi vs. Sudhi Chandra Medhi, II (1985) DMC 248
Gauhati.
4 Krishna Kumar vs. Kiran, I (1991) DMC 248 MP.
5 Amarendra Nath Bagui vs. Gouri Rani Bagui, I (1991) DMC
202 Cal.
the passing of the consent decree for judicial separation, the parties have
been living separately by mutual consent the wife is not entitled to
receive any maintenance under Section 488 Criminal Procedure Code
(present Section 125) she may pursue such remedies as may be available
under Hindu Marriage Act. 1
Locus standi of step mother

The words “his mother” includes natural mother and not step
mother. The right of the step mother in the coparcenary property does not
justify her claim under Section 125, Cr.P.C. It has for this reason that no
explanation was appended in this Section to show that even a step mother
is included within the connotation of mother. 2
Major-child
The Parliament in its wisdom has enabled only a minor child
whether legitimate or illegitimate to claim maintenance under Section
125(1)(b) and only one exception has been made by enacting Sub-section
(c) which enables the child which has attained majority to claim
maintenance. That is a case where the child by reason of any physical or
mental abnormality or injury is unable to maintain itself. 3
When it was not the case of any of the claimants that they have
any physical or mental abnormality or injury on that account they are
unable to maintain themselves, it was held that the case of claimants do
not come under either Sub-clause (b) or (c) of Section 125(1) and the
case of the 3 rd claimant subsequent to becoming major does not come
under any of these Sub-section. 4
Section 127 Cr.P.C. which is for alteration in the amount is
completely different and for this Section 126 Cr.P.C. has no application.
Section 127(1) Cr.P.C. provides that upon a proof of change in the
circumstances of any person, receiving under Section 125 a monthly
allowance, or ordered under the same section to pay a monthly allowance
to his wife, child, father or mother, as the case may be, the Magistrate
may make such alteration in the allowance in the allowance as he thinks
fit. The words “the Magistrate” would mean the Magistrate who had
passed the first order of maintenance, because this interpretation is
strengthened by the fact that Section 128 Cr.P.C. which is the section for
1 Nathuram vs. Atar Kurwar, AIR 1969 All 191

2 Sarju Prasad vs. Damyanti, II (1984) DMC 251 All.
3 L. Usharani vs. D.S. Lakshmaiah, I (1993) DMC 269 Kar.
4 L. Usharani vs. D.S. Lakshmaiah, ibid.
Summery remedy—Modification of order 371
enforcement of the order of maintenance specifically provides that such

petition under Section 125 Cr.P.C. may be presented before “any
Magistrate”. Therefore, in these circumstances the petition under Section
127 Cr.P.C. will have to be filed before the Magistrate who has passed
the first order of maintenance. 1
Although the Magistrate has jurisdiction to entertain a petition for
alteration of maintenance allowance fixed under Section 125 even after a
decree of Civil Court fixing the quantum of maintenance, the proper
thing for the Magistrate to do is to refer the party to the Civil Court and
not to proceed to decide the application in order to prevent conflict of
decisions between two Courts of co-ordinate jurisdiction. The Magistrate
will not be exercising his discretion judicially, if, without referring the
parties to Civil Court, he proceeds to consider the altered circumstances
with a view to alter the quantum of maintenance fixed by a binding
decision of the Civil Court. 2
However mere pendency of the Civil suit in the matter of
maintenance is no ground against the enforcement of an order of
maintenance. Since the Civil Court is not sitting in judgment over the
Magistrate, so as to decide if he should have made the order under
Section 125, Criminal Procedure Code., the Court cannot entertain a suit
for the relief that the Magistrate should not have passed the order, or that
the order should be set aside, or that there should be an injunction upon
the realizations under the order. 3
However the party could seek a declaration about the status of the
parties, or a disqualification which, under the personal law of the parties,
would disentitle the defendant to get maintenance irrespective of the
Magistrate’s opinion in the criminal proceedings and armed with that
declaration, he can approach the Magistrate under Section 127 (2) and
get the order cancelled or modified, as the case may be so as to accord
with the decision of a competent Civil Court. 4 In this regard the decision
in Mailappa Chettiar vs. Sivagami Achi, 5 may also be seen.
Sub-Section (3) of Section 127 Criminal Procedure Code is a new
provision which provides for the cancellation of an order for
maintenance passed under Section 125 in favour of a divorced wife under
the three contingencies specified in Clauses (a), (b) and (c). Under
1 G. Balraj vs. Mallamma, II (1984) DMC 232 AP.

2 Nagendra Iyer v. Premavathi ,1973 Mad LW (Cri) 74.
3 Mahbub Sultan vs. Qutub Din, 31 Crl LJ 770: AIR 1930 Lahore 230
4 Dahyalal Amathalal vs. Bai Madhukanta, 1965 (2) Crl LJ 497.
5 1964 (1) Crl. LJ 242.
Clause (a) if the Magistrate is satisfied that the woman has remarried
after the divorce, the Magistrate has to cancel the order from the date of
her remarriage. Clause (b) provides for cancellation of order from the
dates specified in Sub-clauses (i) and (iii) where the divorced woman has
received either before or after the date of order the whole of the sum
which, under any customary or personal law applicable to the parties,
was payable on such divorce. 1
It is not possible for the High Court to investigate whether the
particular amount has or has not been received by the divorced wife or
whether that was the sum which was to her payable under the personal
law applicable to the parties. It is open to the former husband to
approach the Magistrate for an order in terms of Section 127(3)(b)(ii).
Clauses (c) provides for the cancellation of the order where the woman
has voluntarily surrendered her rights to maintenance after her divorce. 2
Modification in revision
It there was any change in the circumstances of the applicant after
the passing of the order for maintenance the non-applicant has a right to
submit an application under Section 127, Cr.P.C. to the Magistrate for
the alteration in the allowance payable to the applicant. The Magistrate
on proof of the changed circumstances is empowered to make such
alteration in the allowance as he thinks fit under Section 127 of the
Cr.P.C. In the absence of material before the Revisional Court it was
held not justified in modifying the order passed by the trial Magistrate. 3
Multiple applications
A reading of the procedure contemplated under Section 125 of
Criminal Procedure Code does not prohibit a party from filing any
number of maintenance petition seeking maintenance so long as the
granting of amount does not exceed Rs. 500/- in favour of each of the
petitioners. Code of Criminal Procedure, 1973 provides for filling of an
application under Section 127 seeking alteration/modification of the
1 See Qayyum Khan vs. Noorunnisa Begum, 1978 Crl. LJ 1476.

2 Manmonth Mohan Nath vs. Purnamasi Devi, II (1986) DMC 305
Gauhati; Mahadeo vs. Bhimabai, II (1986) DMC 315 Bombay;
Kailashben Arvindkumar Joshi vs. Arvindbhai Ratilala Joshi, I
(1985) DMC 414 Gujarat; Sudhangshu Sekhar Ganguli vs. State, I
(1985) DMC 464 Calcutta; Mohanlal vs. Sau. Kamlabai, II (1985)
DMC 322 Bombay; Mambakkattua Manu vs. Mambakkattu
Vasantha, I (1984) DMC 425 Kerala; Dnyanoba Phirangoo Katore
vs. Housabai, II (1983) DMC 133 Bombay; Doraisami vs. Vasantha,
II (1986) DMC 258 Madras.
3 Indrabai vs. Govindram Sharma, II (1984) DMC 175 MP.
Summery remedy—Multiple applications 373
order passed under Section 125 of Criminal Procedure Code. Therefore,

it is open to the parties to seek appropriate modification as provided in
terms of Section 127, but that provision ipso-facto is not an embargo for
filling separate applications for maintenance as long as the granting of
maintenance does not exceed Rs. 500/- per month as prescribed by
the Code. 1
The order of maintenance granted pendente lite under Section 24
of the Hindu Marriage Act by its very nature last during the pendency of
the main proceedings before the Court. Such a grant of interim
maintenance in itself cannot be a ground for rejecting a petition filed
under Section 125 of Criminal Procedure Code for maintenance.
However, if passing of an order granting maintenance under Section 24
of the Hindu Marriage Act calls for any alteration of the quantum of
maintenance allowed under Section 125 of Criminal Procedure Code or
justifies its cancellation during the period of pendency of the main
proceedings before the Family Court it is for the petitioner to approach
the Court under Section 127 of Criminal Procedure Code for alteration in
the maintenance ordered under Section 125, Criminal Procedure Code. 2
In another case the wife was getting only Rs. 175/- p.m. from the
husband, who was a railway employee at the time of passing the order.
Later he retired from service. Petitioner filed an application under
Section 126, Criminal Procedure Code to enhance the rate of
maintenance. That was dismissed. The wife was getting only Rs. 175/-
per month for maintenance which was not sufficient for her hand-to-
mouth existence. Considering the cost of living and price-hike, even the
maximum amount provided under Section 125, Criminal Procedure Code
itself is very low. The right to live is a fundamental right guaranteed
under Article 21 of the Constitution of India. With the merger amount of
Rs. 175/- p.m. she is not able to survive. Therefore, she filed petition
claiming maintenance from her daughter who is an employee in the
Accountant General’s office. The Court awarded only Rs. 200/- per
month. Thus the total amount awarded comes to only 375/-. Petitioner
was awarded Rs. 175/- p.m. in an earlier case considering the financial
capacity of the husband and also the number of persons whom her
husband has to maintain. Probably that may be the reason for rejecting
the wife’s claim for getting enhanced maintenance. The wife is entitled
to get maintenance from the daughter if she is employed. Therefore, in
1 Shiv Raj vs. IX Metropolitan Magistrate, Hyderabad, II (1995) DMC

1: I (1996) DMC 180 AP.
2 Vallabhaneni Yedukondalu @ Karunakara Rao vs. Vallabhaneni
Nageswaramma @ Karuna Kumari, II (2000) DMC 90 AP.
order to realise some more amount for her livelihood she is entitled to
file a case against the daughter. 1
Multiple orders
The order passed by the learned Magistrate with regard to
maintenance under Section 125, Criminal Procedure Code shall be kept
in abeyance so long the wife gets alimony pendente lite under Section 24
of the Hindu Marriage Act. The order made under Section 125, Criminal
Procedure Code will become operative as soon as the order under Section
24 ceases to exist. 2
Necessity of proof of marriage

A proceeding under Section 125 of the Code is of summary nature
and that the intricacies of the law are not required to be gone into and
that where the man and woman lived together as husband and wife and
treated as such by the community and the man treated the woman as his
wife, marriage between them has to be inferred for the limited purpose of
Section 125 of the Code. 3
It is not necessary to have conclusive evidence of marriage under
Section 125, Cr.P.C. to award maintenance to a destitute wife from her
husband. After all, Section 125, Cr.P.C. “is a measure of social justice
and specially enacted to protect woman and children” 4
Section 25 of the Hindu Marriage Act, 1955 empowers the Court
exercising jurisdiction under the Act to make a provision for permanent
alimony and maintenance at the time of passing of the decree or at any
time subsequent thereto. That Section therefore clothes the Civil Court
with the right of providing permanent alimony at the time of passing a
decree for divorce. But, in this case, the petition for divorce filed by the
husband was dismissed and the marriage was still subsisting. It was held
that till the High Court reverses the decision of the Subordinate Judge,
the marriage between the petitioner and the respondent continues to
subsist. Therefore, it was held that it could not be said that the criminal
1 P.V. Susheela vs. Komalavally, I (2000) DMC 376 Kerala.

2 Haridas Bhattacharjee vs. Suparana Bhattacharjee, II (2000) DMC
611 Calcutta.
3 Anupama Pradhan vs. Sultan Pradhan, II (1991) DMC 618 Orissa
relying upon Saudamini Devi vs. Bhagirathi Raj, 53 (1982) CLT 93:
1 (1982) DMC 333
4 Per U.L. Bhat, J. in Balan Nair vs. Valsalamma, 1986 Ker LT 1378
relied in K. Selvaraj @ Surendran vs. P. Jayakumary, II (2001)
DMC 13 Ker (DB).
Summery remedy—Nullity Marriage 375
Court has no jurisdiction to entertain the petition filed under Section

125 Cr.P.C. 1
Non compliance
Non-compliance of order to pay interim maintenance is not a
situation envisaged to pass ex parte order. Specific provision for ex parte
order having been made by Parliament, there is no scope for Courts to
read into the provision something which is not consistent with the
language of the said provision. Power to set a party ex-parte is not
ancillary to exercise main power. Civil Courts might have jurisdiction in
just cases to impose restriction on defaulting husband from contesting in
exercise of inherent power. Such power has not been vested in criminal
courts since inherent power is vested with High Courts only under
Section 482 Criminal Procedure Code. Same principle is not possible to
be applied to proceedings before Criminal Courts. Drastic power to take
away the right to defend ought not to be invoked unless language of the
statute does not envisage the same. 2
Nullity Marriage
The wife as defined under Section 125 of the Code of Criminal
Procedure continues to be wife and eligible for maintenance under
Section 125 notwithstanding divorce. Dissolution of marriage as a sequel
to divorce should not be equated to decree of nullity. Section 13 of the
Hindu Marriage Act, 1955 is concerned with dissolution of marriage by a
decree of divorce on the grounds enumerated therein. Section 15 permits
either party to remarry again in the event of there being no right of
appeal against decree, or time for appeal expired without any appeal
having been presented, or appeal which has been presented has been
dismissed. The proviso to Section 15 prohibits performance of marriage
within one year from the date of decree for dissolution of marriage or
divorce in the court of the first instance. Therefore the distinction
between dissolution of marriage on divorce and nullity of marriage is
clearly discernible. In the event of dissolution of marriage on divorce the
remarriage by either party is intertwined by certain strings and
conditions and the mere decree for divorce does not result in fanning the
wings and getting away from the tie unless the conditions stipulated in
Section 15 are fulfilled. In the event of a decree for nullity, the
association of marriage is irrevocably terminated with immediate effect.
The explanation under Section 125 of the Code relating to ‘wife’ is
1 B. Lokhanadhan @ B. Lokeshwara Rao vs. State, I (1992) DMC 1

AP.
2 Jayaram Thkra @ Jhagara vs. Sabitrai Thakra, II (1991) DMC 594
Orissa.
solely confined to the situation of divorce only till remarriage and

definition aimed at a singular situation cannot be stretched, associated or
linked to nullity of marriage envisioned under Section 11 or Section 12
of the Act. 1
Section 11 of the Hindu Marriage Act specifically declares any
marriage contravening any one of the conditions specified in Clauses (i)
(iv) and (v) of Section 5 to be null and void and on a petition presented
by either party to the marriage against the other will be declared by a
decree of nullity. Clause (i) of Section 5 of the Hindu Marriage Act lays
down that for a lawful marriage, the necessary condition is that neither
party should have a spouse living at the time of marriage. Obviously,
therefore, a marriage in contravention of this condition is null and void.
If, therefore, the finding of the Subordinate Judge on the ex parte
evidence of the petitioner is sustained, then the marriage between the
petitioner and opposite party he held to be null and void. There is no
doubt that the expression “wife” used in Section 125 of the Code means
a legally married wife not covered by Section 11 of the Hindu Marriage
Act. In this view of the matter, where a decree of annulment of marriage
has been obtained, a Magistrate would be entitled to cancel an earlier
order passed under Section 125 in exercise of his powers under Sub-
Under Criminal Procedure Code wife or divorced wife is entitled
to claim maintenance. When the marriage is null and void as it had
contravened Section 5(i) of the Hindu Marriage Act ex-wife is not
entitled to claim maintenance from the respondent. Section 11 of the
Hindu Marriage Act provides that any marriage solemnised after the
commencement of the Act shall be null and void if it contravenes any
one of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of
the Act. A void marriage does not create any right and obligation which
normally arise from a valid marriage. A reading of Section 125 Criminal
Procedure Code, shows that a legally wedded wife or legitimate or
illegitimate child could claim maintenance from the husband or the
father when he having sufficient means neglects or refuses to maintain
them. 3 Therefore if marriage is annulled wife is not entitle to
maintenance under Section 125 Criminal Procedure Code. 4
Section 11 of the Hindu Marriage Act provides that any marriage
solemnised after the commencement of the Act shall be null and void if it
1 K. Sivarama Krishna Prasad vs. K. Bharath, II (1985) DMC 505 AP.

2 Purna Chandra Digal vs. Sila Digal, II (1989) DMC 12 Orissa.
3 Moni vs. State, II (1987) DMC 133 Kerala.
4 Thulasi Bai vs. C.V. Manoharan, I (1990) DMC 61 Kerala.
Summery remedy—Offer of re-union 377
contravenes any one of the conditions specified in Clauses (1) (iv) and
(v) of section 5 of the Act. A void marriage does not create any right and
obligation which normally arise from a valid marriage. 1
Under Section 125 of the Criminal Procedure Code wife or
divorced wife is entitled to claim maintenance. when the marriage
between the petitioner and the respondent is null and void as it has
contravened section 5(1) of the Hindu Marriage Act petitioner is not
entitled to claim maintenance from the respondent. 2
Karewa marriage is a nullity in the eyes of law and thus wife is
not entitled to interim maintenance under Section 125 of the Code. 3
Offer of re-union
An offer by the husband to keep the wife may be made before the
application is filed. It may be made after the application is filed and
before the order is passed. It may be made after the order is passed and
during the enforcement of the order. It may be a conditional offer or it
may be an unconditional offer. It may be bone fide or it may not be a
bone fide offer. The offer can also be made after the order is passed, and
such a contingency is contemplated in sub-s. (3) of Section 48 Criminal
Procedure Code. For the purpose of sub-s. (4) of Section 488, Criminal
Procedure Code it is not sufficient that there is a conditional offer, the
condition being that the wife should behave well. If the husband tells
wife that he is willing to take her if she behaves well, the wife as well
can reply that she is willing to live with the husband if he behaves well.
It is very difficult to see whether the condition has been fulfilled or not
fulfilled. A conditional offer would not invite an application of sub-s. (4)
of Section 488, Criminal Procedure Code. 4
Where the petitioner had during the proceedings, made a false
accusation of adultery, the offer to take the wife back was not a genuine
one and it was a device to evade the payment of maintenance and further
that the aforesaid fact constituted a sufficient cause for the wife to live
separately from her husband and a false accusation of adultery was a just
ground for a wife declining to stay with her husband. 5
1 K. Moni vs. State, I (1987) DMC 36 Kerala.

2 K. Moni vs. State, ibid.
3 Dharam Singh vs. Chandro Devi, I (1994) DMC 111 P&H.
4 Mohanlal Maganlal vs. Savitaben, AIR 1965 Guj 281: 1965 (2) Cri
LJ 638: (1965) 6 Guj LR 876.
5 Madan Lal vs. Smt. Rajni Bala, 1970 (72) PLR 12 (Del)
In another case 1, in the petition under Section 428 of the previous

Code of Criminal Procedure 1898, the husband made a formal
application offering to keep his wife in his house and on that ground it
was urged that the wife’s petition for maintenance should be dismissed,
it was held as follows:—
“…..The husband has at the stage of his evidence, as mentioned
earlier, made an accusation of adultery against the wife and if on
account of this accusation, which is denied by the wife and was
not even contained in his reply, the wife declines to go and live
with the husband, she is, in my opinion, amply justified in doing
so. But this apart, the offer seems to me to be far from genuine
and bona fide, and coming, as it does, only in answer to the
present claim, it creates an impression of its being a mere device
to avoid the liability of maintenance in these proceedings. Under
Section 488(3) Cr.P.C. it is permissible to the Court to make an
order of maintenance even if the husband offers to maintain his
wife on the condition of her living with him, if the Court is
satisfied that there is just ground for doing so. In the present case,
I have no hesitation in holding that the wife has a just ground
declining to live with the husband if he has no scruple in making
the accusation of adultery against her on oath in Court.” 2
Order without evidence

The learned Magistrate should have examined witnesses to come
to the conclusion as to which of the parties had broken the terms of the
agreement and only on consideration of the proper evidence he should
have passed an order for the maintenance, that is, the order under Sub-
Paternity of child
The object of Section 125 of the Code is to provide a summary
remedy to save dependants from destitution and vagrancy and this is to
serve a social purpose, apart from and independent of the obligations of
the parties under their personal law. The right of the child legitimate or
illegitimate under the Code is an individual right of the child in his or on
her own right, independent of the mother. When a woman claims
maintenance on behalf of a minor child out of wedlock against his
alleged putative father, the onus is on her to show that the child could
1 Chander Parkash Bodh Raj vs. Shila Rani Chander Prakash, AIR
1968 Del 174
2 Ravinder Nath Sharma vs. Nirmal Sharma, I (1985) DMC 446
Delhi.
3 Banshi Das vs. Jitni Debi, II (1983) DMC 198 Patna.
Summery remedy—Payment of cost 379
only have been born through the alleged father under the circumstances
of an exclusive relationship.
In such a case the woman being a highly interested person, the
Court has a duty to see that her statement gets some independent
corroboration, direct or circumstantial that the claimant could have
conceived the child when she and the alleged father had access to
each other. 1
Ratnavel Pandian J. has observed: 2
“To decide the paternity of the child it is prima facie improper to
accept the mere statement of the mother, upon whom lies the
burden to establish the paternity of the child. It is true that
corroborative evidence is not usually forthcoming and therefore
the Magistrate has to rely upon other corroborating circumstances
if they are available. But at the same time it is not correct to say
that unless the child is admitted by the putative father to be his
illegitimate child, the Magistrate has no power to make an order
for payment of maintenance. The basis of an application the
maintenance of a child is the paternity of the child irrespective of
its legitimacy or illegitimacy. Therefore, it is the duty of the
Court, before making the order, to find definitely though in a
summary manner, the paternity of the child…………
The burden of proof is not upon the father of the child in such
cases. It is for the mother claiming maintenance to show that the
child was born to the alleged father and the circumstances of the
exclusive relationship.”
In another case Anant Narayanan, J. 3 has also held as under:
“No presumption of paternity can arise in a proceeding under
Section 488, Cr.P.C. with regard to children born out of wedlock
merely upon the entries found in certain birth registrar extracts
where there is no evidence to show that the alleged father was the
informant or that he gave some information constituting
admission of paternity.”
In one case, the child was born while the relationship of husband
and wife between the petitioner and the first respondent subsisted. It was
held that the presumption is that the child was born to the petitioner
unless the contrary is established. 4
1 Ahalya Bariha vs. Chhelia Padhan, I (1992) DMC 453 Ori.

2 Durairaju vs. Neela, 1976 LW (Cri) 113.
3 Mahadeva Rao vs. Yasaoda Bai, 1961 MWN (Cri) 164.
4 Udayakumar vs. R. Kalavathi, I (1985) DMC 430 Mad.
Payment of cost
The words used in the proviso to Section 126(2), Criminal
Procedure Code require the party on whom costs has been imposed by
the order setting it aside to pay the same in cash if he wants to
participate in the proceeding by contesting the application for
maintenance made against him. The proviso for setting aside the ex parte
decree to impose costs, which obviously has the purpose of
compensating the party in whose favour the ex parte order had been
made. Payment of costs under the proviso is, in fact, a condition
precedent for availing the order setting aside the ex parte judgment given
under Section 125, Criminal Procedure Code. The power to impose costs
on the court has been given to a court for making payment of
compensation. In this case an interpretation was canvassed that the
amount could be realized only as fine is not acceptable on account of the
language of the proviso not permitting the same. The language apart, the
intention also of the legislature could not be that a party remaining
absent may get ex parte order set aside and thereafter harass the
applicant who has applied for maintenance under Section 125. By
executing order of costs as provided by Section 421, Criminal Procedure
Code the intention is that if costs are paid the proceedings under Section
125, Criminal Procedure Code could be gone into and the rights of the
parties could be decided on merits. The proviso is that on payment of
costs written statement could be filed. The purpose of the legislature can
be achieved only if interpretation is that costs is to be paid in cash. It
was therefore held that there was no substance in the submission that
costs could be realized by resorting to the method of execution of an
order under Section 125, Criminal Procedure Code or by availing Section
421 of the Code of Criminal Procedure. 1
Payment under personal law

Section 127(3)(b) is telescoped into Section 125 and is to be read
and understood as proviso to the latter Section. The dismissal of the
application by the Court below was therefore correct, and calls for no
interference. Even if Section 127(3)(b) were to be construed as an
independent Section, it might require the entertainment of an application
under Section 125 followed by a cancellation immediately thereafter
under Section 127(3)(b) which only speaks of “a sum, which under the
customary or personal law applicable to the parties, was payable on
divorce”. This was held to be a clumsy and circuitous way of referring to
the well known expression ‘maintenance’ which could certainly have
been done it such was the legislative intent, in plainer and simpler, and
1 Kamla vs. R.L. Bilgainyan, II (1984) DMC 1 All.

Summery remedy—Pleading 381
more direct language. It was held that the sum referred to by Section
127(3)(b) need not be restricted to maintenance in the well understood
sense of the term, but may cover any sum or amount payable on divorce
under the customary or personal law of the parties. Therefore Section
127(3)(b) was held to be attracted. 1
Pecuniary jurisdiction
Although what the section 125 of Criminal Procedure Code, 1973
plainly means is that the Court cannot grant more than Rs. 500/-for each
one of the claimants. “In the whole” in the context means taking all the
items of maintenance together, not all the members of the family
put together. 2
If a woman has a dozen children and if the man neglects the
whole lot and, in his addiction to a fresh mistress, neglects even his
parents and all these members of the family seek maintenance in one
petition against the delinquent respondent, can it be that the Court cannot
award more than Rs. 500/- for all of them together? On the other hand if
each filed a separate petition there would be a maximum of Rs. 500/-
each awarded by the Court. Therefore, this obvious jurisdictional
inequity was refused to be read in the provision by reading a limitation
of Rs. 500/- although what the section plainly means is that the Court
cannot grant more than Rs. 500/- for each of the claimants. ‘In the
whole’ in the context means taking all the items of maintenance together,
not all the members of the family put together. This interpretation
accords with social justice and semantics and, more than all, is obvious. 3
Pleading
The law of civil pleading should not be rigidly and blindly
applied to a case under Section 125 Cr.P.C. if there is no specific
pleading regarding inability to maintain, the same can be gathered from
the evidence and circumstances of the case. 4
1 Kamalakshi Vasantha Kumari vs. Sankaran Sadasivan

Trivandrum, AIR 1979 Ker 116 (FB): 1979 Ker LT 5: ILR (1979) 1
Ker 148: 1979 Cri LJ (NOC) 113: 1979 Mad LJ (Cri) 325.
2 Captain Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ
3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978
SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1.
3 Captain Ramesh Chander Kaushal vs. Veena Kaushal, ibid.
4 Ramayan vs. Tapiya, I (1986) DMC 313 All; See also Shuamapada
Banerjee vs. Reba Banerjee, II (1984) DMC 172 Calcutta; Sant
Kaur vs. Gurmukh Singh, II (1984) DMC 417 P&H; Kewaldas
In Santosh Kumari vs. Jaswant Rai, 1 that the absence of the plea
that wife was unable to maintain herself will not be fatal to the grant of
the relief under Section 125 of the Code of Criminal Procedure. It has
then been held in Smt. Munni Devi vs. Sri Om Pal, 2 that a wife’s claim in
her application for maintenance a under Section 125(1)(a) of the Code of
Criminal Procedure on the ground that she was unable to maintain
herself could not be refused on the ground that she did not lead evidence
in proof of the fact that she was unable to maintain herself where she had
raised a plea to that effect in her application which was not controverted
at any stage by her husband. 3
In one case, in the written objection the petitioner had not stated
that she has means to support herself and her daughter and did not even
make any such allegations in his evidence nor was it suggested to the
opposite party when she was examined as witness that she has means to
support herself and her child. In the situation even though the learned
Magistrate has not recorded a finding on this point still it does not
appear that it has causes any failure of justice and therefore there need
not be any revisional interference by this Court. 4
Rule of pleadings had not to be strictly enforced in an application
under Section 125 of the Code Criminal Procedure. It was the contention
of the non-applicant that the applicant is not entitled to maintenance
because of the decree passed against her. It is not his case that he has
been providing any maintenance to her after passing of the decree. He
disowns his liability to maintain her. In it was held that in the
circumstances, it will be assumed that there is not only neglect but
refusal to maintain the applicant. 5
In an application for maintenance under Section 125 of the
Cr.P.C. it was not pleaded to the effect that the earlier marriage of the
petitioner was not a valid marriage. It was held that omission at the most
would make pleadings loose. Looseness in her pleading would not come
in her way in claiming maintenance. If it did not come in her way in
Pandurang Avale vs. Kunda Kewaldas Avale, II (1982) DMC 150

Bombay.
1 1981 PLR 712.
2 1980 All. LJ 296.
3 Surjit Kaur vs. Natha Singh, I (1983) DMC 154 P&H.
4 Sambhunath Jaiswal @ Sambhu Jaiswal vs, Anjana Jaiswal, II
(1990) DMC 354 Cal.
5 Sushila vs. Namdeo, II (1991) DMC 31 Bombay.
Summery remedy—Power to impose conditions 383
claiming maintenance itself, it cannot come in her way in claiming

In Arunabehn T. Ramanuj vs. Vasudev P. Nimavat, 2 also it has
been held that the law of pleadings as applicable to civil proceedings is
not applicable to maintenance proceedings under Section 125 of the
Cr.P.C. It has further been held therein that loose pleadings of a party
claiming maintenance under Section 125 of the Cr.P.C. would not be
fatal to the claim of maintenance.
Pleading of neglect
The order of maintenance under Section 125 Code of Criminal
Procedure is a temporary one and the proceeding being a summary one
the order is granted to provide only an emergent relief to person in need.
The permanent rights of the parties have to be decided by the appropriate
Court, especially after the advent of the Hindu Adoptions & Maintenance
Act and more recently the Family Court Act, 1984. A person coming
before the Magistrate for an order of maintenance should plead that she
is neglected and that the party bound to maintain refuses to do so. There
has been such an allegation by the wife/petitioner before the Magistrate.
The husband in such a case can resist the petition for maintenance in
offering to maintain his wife on condition of her living with him. When
such an offer is made, it is still open to the wife to refuse it in which
case she will have to substantiate her ground of refusal. 3
Power to impose conditions

Under Section 126 of the Code of Criminal Procedure it is open
to the court for setting aside ex-parte order, to impose condition and
even costs. It would be hardly material as to whether such condition has
been imposed by the Magistrate himself or the Revisional Court which
was giving relief under Section 126 Cr.P.C., so it was for the court which
could also impose conditions and even impose costs. Expression used in
Section 126(2) Cr.P.C. is subject to such terms and conditions. In this
case it was held that the terms in this case is otherwise reasonable.
Children will not be made to starve on account of lingering on the
proceeding, so if any precautions have been taken in that regard, the
order cannot be interfered with particularly when it has been made clear
that the amount payable by any final order. 4
1 Kantilal Punjaji Chavda vs. Nanubhai Kantilal Chavda, II (1993)

DMC 551 Gujarat.
2 1992 (2) GLH (148).
3 Nagappan vs. Vijaya Visalakshi, I (1986) DMC 124 Madras.
4 Mustaq Ahmad vs. State of U.P., II (1985) DMC 1 All.
Presumption of paternity
In one case, after the marriage the opposite party lived together
with the petitioner at his house. It was observed that, had the opposite
party became pregnant before it may that would not escape the notice of
the present petitioner and in that case he certainly would have behaved in
other way towards the opposite party long before the Child’s birth. In
this case, however, it was not disputed that the present petitioner nor any
member of his family never misbehaved with the opposite party till after
the birth of the child. In that view of the matter from the very behaviour
of the petitioner himself it was held that there is no merit in the
petitioner’s denial of paternity of the child in question. 1
Procedure of proceedings
Section 126 of the Code prescribes the procedure which is to be
followed. In particular, Sub-sec. (2) of Section 126 says that all evidence
in such proceedings shall be taken in the presence of the person against
whom an order for payment of maintenance is proposed to be made. It is,
however, further provided that if the Magistrate is satisfied that the
person against whom an order for maintenance is proposed to be made is
wilfully avoiding service or wilfully neglecting to attend the Court, the
Magistrate may proceed to hear and determine the case ex parte.
However, this does not mean that the Magistrate shall pass an order
without recording evidence as required in the main part of Sub-sec. (2)
of Section 126. The proviso only dispenses with the necessity of
recording evidence in the presence of the other side if that other side is
wilfully avoiding service or wilfully neglecting to attend the Court.
Section 126 (9) itself provides that all the evidence shall be recorded in
the manner prescribed for summons cases. 2
Proceedings under old Code

Proceedings initiated under Section 488 of the old Code, before
the date on which the present new Code of Criminal Procedure, 1973 had
come into force, were required to be continued and disposed of, in
accordance with the provisions of the old Code only. Provisions of
Section 488 of the old Code are in pari materia with those of the new
Code, except that, under the new Code the divorced wife who had not
remarried, has also now, become entitled to maintenance which she was
denied under the provisions of the old Code. This is substantive change
1 Asraf Ali Molla vs. Mst. Manowara Khatoon Bibi, II (1986) DMC 99
Calcutta.
2 Ramesh Laxman Contractor vs. Jayshreeben Ramesh Contractor,
II (1982) DMC 344 Bombay.
Summery remedy—Proceedings under old Code 385
brought about in the new Code i.e. Section 125 ibid broadening the
spectrum of “wife” so as to ensure the benefit of maintenance, also to a
divorced woman; but this new benefit could be availed of only by the
claimants, initiating proceedings under the new Code, and not by those
who might have started the proceedings under the provisions of the old
Code and continued them as such, even after the repeal of the said Code
by the new Code, which does not contain any provision to extend the
benefit of the provisions of the new Code, more particularly of Section
125 bid to the proceedings instituted under the provisions of the old
Code, now repealed. It was therefore held that non-applicant wife’s
prayer to treat the proceedings under Section 488 of the old Code as the
proceedings under Section 125 of the new Code is just on humanitarian
grounds with no legal sanction behind it; and as such, cannot
be accepted. 1
The proceeding under Section 125 of the Code may be not strictly
proceedings where a party is termed as an accused or a complainant, yet
the same have to be tried in accordance with the procedure prescribed for
summons cases. 2
Delhi High Court has held 3 that proceedings under Section 488 of
the Old Code of Criminal Procedure, which was similar to the Section
125 of the New Code, are criminal in nature and still the proceedings are
to be tried as summons case although provisions of Section 242 of the
Old Code, which are similar to provision of Section 313 of the Code, are
not applicable. The procedure prescribed for summons case is
incorporated in Section 251 to 259 of the Code and Section 256 lays
down that if the summons has been issued on complaint, and on the day
appointed for the appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall, notwithstanding anything hereinbefore
contained, acquit the accused, unless for some reasons he thinks it proper
to adjourn the hearing of the case to some other day. Proviso to this
Section lays down that where the complaint is represented by a pleader
or by the officer conducting the prosecution or where the Magistrate is of
opinion that the personal attendance of the complainant is not necessary,
the Magistrate may dispense with his attendance and proceed with the
case. The petitioner in this case is represented by a counsel before the
trial Court. Thus, the Magistrate could dispense with the attendance of
1 Mohd. Jalil Khan vs. Anwari Begum, I (1982) DMC 338 MP.
2 Usha Kumari vs. Parmanand @ Preme Swami, II (1990) DMC 360
Delhi.
3 Harbhajan Kaur vs. Major Sant Singh, AIR 1969, Delhi 298
the complainant during the hearing of the petitioner under Section 125,
Code but it does not dispense with the discretion of the Magistrate to
insist upon the presence of the complainant on any date of hearing if the
interests of justice so require. So, as a matter of fact, by passing the
impugned order the Magistrate is enforcing the main Section 256(1) and
is revoking the permission envisaged in proviso to Section 256(1). There
is no illegality or impropriety committed by the Magistrate in passing the
impugned order for seeing that the petitioner appears on a date fixed
when the evidence from the office, where she is alleged to be employed,
is to be recorded in order to see that the identity of the petitioner is
fixed. Rather it is one of the points to be seen in the proceeding under
Section 125 of the Code, whether the petitioner is a destitute and is not
earning anything and in case the petitioner was not employed anywhere
as alleged by the opposite party, the petitioner ought to have filed on
affidavit in contesting the affidavit filed by the other side. 1
Proof of marriage
In our practical life, that even if the daughters are married, for
long time they are described as daughter of so and so in the official
record. For one reason or the other, such record are not changed and
entries are often times made in such record identifying girls as daughters
of their fathers instead of wives of their husbands. And what is wrong if
a particular woman is described as a daughter of so and so instead of
wife of so and so, although in our society, normally, the woman are
described by the names of their husbands. But, just because in the
electoral roll, the wife was described as the daughter of her father, it was
held that it does not mean that she was not the wife of Respondent. 2
Proof of neglect
In Bai Tahira vs. Ali Hussain Fissally Chothia 3 it has been
observed therein that—
“Section 125 requires, as sine qua non for its application, neglect
by husband or father. Where in a petition by a divorced wife
under Section 125, the husband did not examine himself to prove
that he was giving allowances to the divorced wife, his case, on

Delhi.
2 Bhagirthi Bai vs. Ramrao Kadaji Warpade, I (1985) DMC 285
Bombay; see also Mohammed vs. Sulekha & Pathumma vs.
Mohammed, I (1984) DMC 453 Kerala; Purna Bhadur Bista vs.
Santa Bista, II (1984) DMC 189 Sikkim; Saudamini Devi vs.
Bhagirath Raj, 1 (1982) DMC 333 Orissa.
3 AIR 1979 SC 362.
Summery remedy—Recording of evidence 387
the contrary, was that she had forfeited her claim because of
divorce and the earlier consent decree held that the husband had
no case of non-neglected and hence, the basis condition of
neglect to maintain was satisfied.” 1
A divorced wife is under no obligation to live under the roof the
husband. Equally, the husband cannot forestall the claim of maintenance
by making a suggestion that he has willing to keep her. The nuptial tie
has been dissolved once for all. It is the new status of the wife as a
divorced wife which gives her the right of maintenance. No specific
words of neglect or refusal need in such a case be pleaded on proved. 2
Reconciliation
Unlike the procedure prescribed under the Hindu Marriage Act,
Section 125 and 126 Criminal Procedure Code do not prescribe that the
Court should make any effort for reconciliation by talking to the parties.
In any case, the Revisional Court ought to have recorded a note in detail
duly signed by both the parties as to what had transpired in the
chambers, if at all this procedure had not been objected by the parties
and it could be only thereafter that he could have treated it as evidence in
setting aside the order of the Magistrate on that point. 3
Reconsideration
Once an order for maintenance is passed in favour of an minor on
change of circumstances that order can annulled or altered only under
Section 127 Cr.P.C. when an application under Section 127 Cr.P.C. is
made for altering or annulling an order, Magistrate can make elaborate
inquiry and then only an appropriate order for annulment or alteration
can be passed. 4
Recording of evidence
An application for maintenance is not a complaint within the
meaning of section 4(h), Criminal Procedure Code, and, therefore, the
husband is not in the position of an accused. It was found that there was
nothing on the record to show that the husband was forced to adduce any
evidence, even though the wife had not examined herself or any of the
witnesses. Thus it was held that the evidence of the husband and his
witnesses formed a part of the evidence in the case and therefore the
1 Sushila vs. Namdeb, II (1991) DMC 570 Bombay.

2 Darshan Pal vs. Darshana, II (1985) DMC 135 P&H.
3 Dhiraj Singh vs. Rajeshwari Devi, II (1989) DMC 133 All.
4 Preetpal Singh vs. Ishwari Devi, II (1991) DMC 460 All.
learned Magistrate was absolutely justified in taking the same into

consideration and acting upon the admissions made therein. 1
Section 540, Criminal Procedure Code does not debar a court
from examining a party as a court witness, if the court considers the
evidence of that party essential to the just decision of the case. Of
course, the wife had to prove neglect or refusal on the part of the
husband to maintain her but, when the husband volunteered to given
evidence before the evidence of the wife, the latter can take advantage of
the husband’s evidence in support of her case and the Court was justified
in taking into consideration the entire evidence on the record for decision
of the controversial question. 2
Proceedings under Chapter IX of the Code stand on a different
footing. The person against whom claim for maintenance is made is not
accused of any offence; nor can he be convicted or sentenced. The
proceedings against him are essentially of a civil nature, since the claim
against him is essentially of a civil nature. The Court, naturally, has a
duty to inform him about the proceedings and of his right to appear and
contest. The normal duty of the Court is to record evidence in the
presence of the person against whom the claim is made. That does not
and cannot mean that the Court can compel his appearance. Whether he
should appear or not is a matter left to his own decision. A person
against whom a claim is made may not desire to contest the case at all.
He cannot be compelled to appear in Court and to be present during the
recording of the evidence. If he cannot be so compelled, the Court cannot
have power to compel his appearance. This is the rationale for the
provision in the proviso to Section 126(2) which empowers the Court
under certain circumstances to proceed ex parte. The circumstances are
where the Court is satisfied that person against whom the claim for
maintenance is made is wilfully avoiding service or wilfully neglecting
to attend the Court. Of course, it is not mere avoiding of service of
failure to attend the Court which attracts the operation of the proviso.
Avoiding of service or failure to attend the Court must be wilfully, that
it, deliberate. Where such a person wilfully avoid service or neglects to
attend the Court, the law enables the Magistrate to determine the case ex
parte, after recording the evidence in his absence. This would also
indicate that the Magistrate cannot compel appearance of such a person
in the same manner in which he can compel appearance of an accused
1 Nalini Ranjab Chakravarty vs. Kiran Rani Chakravarty, AIR 1965

Patna 442 (DB); 1965 BLJR 582: 1965 (2) Cri LJ 530.
2 Nalini Ranjab Chakravarty ibid.
Summery remedy—Recording of evidence 389
person by resorting to provisions relating to summons, warrant of arrest,

proclamation and attachment contained in Chapter VI of the Code. 1
In the proceedings under Section 125 Cr.P.C. the manner of
recording the evidence in the presence of the opposite party or of his
pleader will be the same as prescribed for summons cases. Section 254 of
the Code of Criminal Procedure provides that the Magistrate shall
proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution and also to hear the accused and
take all such evidence as he produces in his defence. It further provides
that the Magistrate may if it think fit, on the application of the
prosecution on the accused issue a summons to any witness directing him
to attend or to produce any document or other thing. It further provides
that the reasonable expenses of the witness incurred in attending for the
purposes of the trial may be got deposited in the Court before
summoning of the witness. Section 274 requires the Magistrate to make a
memorandum of the substance of the evidence of each witness as the
examination proceeds in the language of the Court, and if he is unable to
do so he may cause such memorandum to be made in writing from his
dictation in open Court and sign the memorandum which shall form part
of the record. It simply provides that the Magistrate shall record all such
evidence as may be produced by the prosecution as well as by the
accused. All this procedure can be adopted when the opposite party in
the proceedings under Section 125 Cr.P.C. is either personally present or
represented by his pleader. But if the opposite party absents himself and
no pleader appears on his behalf, the manner for recording of the
evidence as required for summons cases need not be resorted to. In the
ex-parte proceedings, the Magistrate under the proviso to Sub-section (2)
has to satisfy himself that the opposite party is wilfully avoiding service
and wilfully neglecting to attend the Court. On his satisfaction the
Magistrate may proceed to hear and determine the case ex-parte. In such
ex-parte proceedings the Magistrate has got the discretion either to
record the statement of the applicant and the witness on oath or direct or
permit them to file affidavits before the Court. There is no illegality if
the learned Magistrate either directs or permits the applicant or any
witness to file an affidavit in proof of the facts contained in the
application under Section 125 Cr.P.C. If the opposite party appears he
can have the right of cross-examination of the deponent in respect of the

Cri LJ 224.
averments made n the affidavit. But if he does not appear there is no

illegality in relying upon the affidavit as the evidence. 1
The expression “shall” used under Sub-section (2) of Section 126,
Criminal Procedure Code is to be read with reference to proviso of Sub-
section (3) of Section 125, Criminal Procedure Code which envisages
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, any may make an order under this
section notwithstanding such offer, if he is satisfied that there is just
ground for so doing. At this stage it is to be seen that if the expression
“shall” used under Sub-section (2) of Section 126, Criminal Procedure
Code is read with reference to Sub-section (3) of Section 125, Criminal
Procedure Code it will lead towards an irresistible conclusion that the
Legislature has insisted to record the evidence of wife in presence of her
husband in a proceeding under Section 125 so that the husband may be
provided with an indirect opportunity to patch up the differences with his
wife and to effect a change of heart and restore a life of conjugal
happiness by offering to maintain his wife. Not only this, it is also
possible to envisage a situation where by the intervention of relations of
either parties in such proceedings, the husband and wife may be mutual
consent agree to live separately. The word “shall” used under Sub-
section (2) of Section 126, Criminal Procedure Code imposes a
mandatory duty upon the Court to record the evidence in the presence of
the husband. 2
Recovery and modification

The proceedings under Section 127 Criminal Procedure Code are
independent proceedings vis-à-vis the recovery proceeding under Section
125(3) of Criminal Procedure Code. It was held that even assuming that
the two can be taken up together then it is for the trial Judge to decide
the manner in which the recovery proceedings should be initiated. If the
Magistrate decided to give priority to the recovery proceedings rather
than the proceedings for modification then he must follow the tenet of
Section 125(3) of Criminal Procedure Code which says that 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 part of each month’s
allowance remaining unpaid after the execution of the warrant, to
1 Jagdish Prasad vs. 4th Additional Session Judge, Varanisi, I (1996)

DMC 496 All.
2 Nand Kumar vs. Gauatri, I (2000) DMC 291 Rajasthan.
Summery remedy—Res judicata 391
imprisonment for a term which may extend to one month or until

payment if sooner made. The words “without sufficient cause” emphasise
that even while proceeding to direct recovery by a coercive process or
for sending a defaulter to prison, the trial Judge must afford opportunity
to the defaulter to show cause why the warrant for levying the amount or
for sentencing him to imprisonment should not be issued. It is only if the
defaulter fails to show sufficient cause that he may then take the steps
for recovery by coercive process or by sentencing to imprisonment. 1
Refusal co habit
At the stage when the Magistrate is considering whether an order
under sub-section (1) should be passed or not, it is not relevant to
consider whether there is just ground for the wife to refuse to live with
him. What the Magistrate has to consider at this stage is whether the
husband, though possessed of sufficient means, has neglected or refused
to maintain his wife, and not whether the wife has just ground for
refusing to live with the husband, because, there may be cases where the
husband does not neglect or refuse to maintain his wife even though she
may have just ground for refusing to live with him. To put it shortly, the
jurisdiction of the criminal court to make an order of maintenance
against a person having sufficient means arises only upon proof of
neglected on his part to maintain his wife. In the absence of such proof it
is not open to the Magistrate to make any order of maintenance. 2
Merely because wife and children left the home of
husband/father, of their own accord, is no ground to refuse maintenance. 3
Res judicata
One of essentials for the applicability of the general principles or
res judicata is that the matter had been heard and finally decided in the
earlier case. The matter should be one upon which the court had
exercised its judicial mind and had come to a conclusion. The decision
must have been on merit on the question in issue. In other words there
must exist a final adjudication on the merits before the principle of res
judicata can be involved. In this case the earlier petition filed by the wife
was dismissed as withdrawn. Therefore, it was held that it was not a
1 Ashok Yeshwant Samant vs. Suparna Ashok Samant, II (1991)

DMC 132 Bombay.
2 Subhagi Devi vs. Murli Pradhan, AIR 1968 Patna 139: (CN 46)
1968 Cri LJ 539: 1968 BLJR 650.
3 Mannava Satyawati vs, Mannava Malleswara Rao, 1995 Supp (3)
SCC 259
decision on merit and for that reason also the subsequent petition was
not barred. 1
There is no provision in the Code which bars a second application
under Section 488 Cr.P.C. But when an application under this section has
been heard and adjudicated upon, it is against the general principle of the
rule of ‘res judicata’ that a subsequent application on the same facts
should be entertained. Subject to this principle, a prior application is no
bar to a subsequent application if that application was dismissed for
default and there was no adjudication on the merits. On the perusal of the
records, it was found that the previous case was dismissed in default and
there was no adjudication on the merits, therefore it was held that there
was no bar against the second application. 2
In another case it was observed as under:
‘The matter can be viewed from either angle. It can be viewed
that there was a genuine effort by wife to rehabilitate herself in
her matrimonial home but in vain. The previous orders of
maintenance in a manner of speaking could at best be taken to
have been suspended but not wiped out altogether. The other view
can be that the maintenance order stood exhausted and thus she
be left to fight a new litigation on a fresh cause of action. Out of
the two courses, we would prefer to adopt the first one, for if we
were to resort to the second option, it would lead to injustice.’ 3
It will thus seen that the second application by the wife is not
barred. In any case either the earlier order of maintenance stood revived
and could also be modified by the Magistrate to suit the present needs of
the wife and the child. In alternative, the wife could renew her prayer on
fresh cause of action and make fresh application for maintenance. 4
Restoration of ex parte order

The proviso says that the order could be set aside for good cause
shown on an application presented within three months. In a case in
which the person against whom the order was made had no knowledge of
the proceedings or the order, the filing of a restoration petition within
three months from the date of the order does not arise at all. If at all, he
1 Khem Chand Kataria vs. Shakuntala Devi, II (1983) DMC 201

Delhi; Maniben vs. Manibhai Mohangir Goswami, I (1983) DMC
416 Gujarat; Vishramji vs. Kausalyabai, II (1984) DMC 227
Bombay.
2 Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi, AIR
1965 Manipur 49: 1965 (2) Cri LJ 785.
3 Mahua Biswas vs. Swagata Biswas, 1998 (2) SCC 359: 1998 (1)
MPWN 186.
4 Govind Singh vs. Sunita Devi, I (2001) DMC 490 MP.
Summery remedy—Revision 393
need file only a petition on getting knowledge of the order. He can only
do so. Normally that provision may be intended to be applicable only in
cases coming within the proviso. Otherwise the provision to file an
application to set aside the ex parte order and too within three months of
the order cannot have any meaning. “Good cause” mentioned in the
proviso must have some nexus with the wilful avoidance of service or
wilful neglect to attend the court. There is no question of a person to
whom no notice was taken or who did not avoid the notice and did not
refuse to appear before court showing “good cause” within three months.
At any rate three months provided from the date of the order cannot be
applied in such case. The provision for filing a restoration application
may be intended only in cases of persons coming within the first part of
the proviso, because compliance of that part of the proviso is an essential
ingredient for empowering the Magistrate to proceed ex parte. When a
Magistrate proceeds ex parte, without satisfaction of either of those
conditions, the ex parte order itself become illegal. In such cases, it
cannot be held that the person against whom the ex parte order is passed
is bound to appear before the Magistrate and file an application for
restoration as a condition precedent to approaching higher authorities in
revision. It was held that, the illegal order could be challenged by person
against whom the order was made by filing a revision before the Session
Judge, who is competent to entertain the revision. If he chooses, he is
also entitled to file an application for restoration before the
Magistrate himself. 1
Review and recall

Review is a creature of the statute in absence of which such
power cannot be exercised. Where, however, Magistrate or his successor
finds that the disposal was without jurisdiction which under no
circumstances could have been passed in exercise of the power vested, to
recall such order would be ancillary to the power to dispose of the
application on merits. Such ancillary power is not inherent power. 2
Revision
While exercising Revisional powers, the court is not expected to
act as if it is hearing an appeal and to reappreciate the evidence. 3
1 Sumathi vs. N.J. Pater, II (1985) DMC 406 Kerala.

2 Sabitri Barik vs. Siba Barik, II (1989) DMC 376 Orissa.
3 Saeeda Khatun Mohmad Athar vs. Mohmad Athar Monhad Taher,
II (1983) DMC 1 Gujarat.
When the Magistrate after considering the evidence, as adduced by the
parties, held that the applicant was not the wife of the respondent and
further held on the basis of the evidence on record that the other
applicant was the illegitimate child of the respondent. After considering
the evidence on record it was held that the learned Judge of the High
Court committed an error in making a re-assessment of the evidence and
coming to a finding that the second applicant was not the illegitimate
child of the respondent. The High Court in its revisional jurisdiction was
not justified in substituting its own view for that of the learned
Right of children
The key to this provision is furnished in the case of the child by
the words “unable to maintain itself”. In different communities and
different circumstances these words may mean different thing. Among
the labouring classes it may even be possible to hold that a healthy boy
aged 16 is not unable to maintain himself. On the other hand, regard
being had to the circumstances of the family of the petitioner it cannot be
said that a girl aged 19 studying in the Intermediate classes is able to
maintain herself. The Legislature purposely omitted reference to any
particular age. The emphasis is on the words “unable to maintain itself”.
It is a question to be decided on the evidence of each case whether a
particular child is or is not able to maintain itself. For that, regard must
be had to the particular circumstances obtaining in each family and
its status. 2
The liability of the petitioner under Section 125 of the Code of
Criminal Procedure to maintain his son is not diminished in any manner
because he is living with mother who is also an earning hand. Even if it
may be accepted that under the Hindu Law a mother is liable to maintain
a child but this principle cannot be applied to the proceedings under
Section 125 of Code of Criminal Procedure. Taking into consideration
the income of the petitioner, it could not be held that he has no means to
maintain his minor son. 3
1 Pathumma and another v. Muhammad, AIR 1986 SC 1436:

1986(1) Scale 603: 1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj
LJ 788.
2 Abdul Hai Qadir Bux vs. Km. Azra Sikander, AIR 1965 All
125:1965 (1) Cri LJ 269.
3 Amarjit Pal Singh vs. Pankaj Puri, I (1994) DMC 414 P&H.
Summery remedy—Scheme 395
Satisfaction of ex-parte order

In one case the order passed by the Magistrate did not show that
he had the satisfaction of either of the grounds according to the proviso
to Section 126(2). Without any basis he has simply stated that the
respondent in evading service and he was wilfully neglecting to appear
before court. Whether the Magistrate could conduct an independent
enquiry on a miscellaneous petition to see whether the counter petitioner
is avoiding summons or wilfully neglecting to appear before court, was a
matter that was held to be doubtful. Anyhow for the purpose of entering
the satisfaction the Magistrate will have to confine himself to the
evidence in the case. If the petitioners are allowed to file miscellaneous
petitions and adduce evidence regarding extraneous matters in proof of
avoidance of service or wilful neglect in appearing before court, they
may be able to manipulate evidence in the absence of the person against
whom the decision is taken to proceed ex parte in the matter. Appearance
in the civil cases and other matters were extraneous to the scope of the
enquiry by the Magistrate. The fact that he accepted summons in another
proceeding cannot show that the notice from the maintenance case was
served on him or that he avoided the same. The records in the case
showed that no notice was served on the respondent or that he avoided
service or wilfully neglected to appear before court. If so, it is clear that
the Magistrate proceeded ex parte without the satisfaction required under
the proviso to sub-section (2) Section 126. His action was held to
be illegal. 1
Scheme
Section 125 Criminal Procedure Code contemplates that if any
person having sufficient means neglects or refuses to maintain his wife
who is unable to maintain herself then the magistrate may make an order
directing such person to make a monthly allowance for the maintenance
of his wife at a rate not exceeding Rs. 500/- in whole. Sub-clause (4) of
Section 125 Criminal Procedure Code provides that no wife could get an
allowance from her husband under Section 125 Criminal Procedure Code
if she was living in adultery or if without any specific reason she had
refused to live with her husband or if they had started living separately
by mutual consent. 2
The provision for some amount of maintenance under Section 125
Criminal Procedure Code has apparently been made looking at the
peculiar circumstances under which neglected women, minor children
1 Sumathi vs. N.J. Pater, II (1985) DMC 406 Kerala.

2 Rajendra Prasad Gupta vs. State of U.P., II (1991) DMC 113 All.
and poor parents have been living in the society since long. This relief
can be claimed by the aggrieved person under Section 125 Criminal
Procedure Code at the place of their own residence. Consequently to
deny the said remedy to a neglected and hard pressed wife merely on the
ground that she could claim it in a suit which she could defend and
which may sometimes be pending at a place different from her place of
residence, would almost render the facility and benefit which has been
provided to her under Section 125 Criminal Procedure Code nugatory.
Consequently it was held that a proceeding under the provisions of
Hindu Marriage Act can not operate as a bar to a proceeding of
maintenance under Section 125 Criminal Procedure Code. 1
In another case, on behalf of the husband two facts were brought
to notice of the Court, namely, (1) that in divorce petition the wife had
been awarded interim maintenance of Rs. 450/- per month; (2) that the
children had attained majority and each of them was above 18 years of
age. It was held that both these facts are not relevant to an application
for setting aside of ex parte order of maintenance which has to be
decided only on the basis of presence or absence of good cause. Facts
touching the grounds on which maintenance can be awarded are not
relevant to an application for setting aside of ex parte order. Any order
of the civil Court regarding maintenance overrides the order of
maintenance under Section 125 Criminal Procedure Code. If there is
already an interim order for maintenance the Civil Court the maintenance
paid thereunder has to be taken into account in proceedings under
Section 125 Criminal Procedure Code also. 2
In this case there was a maintenance order. There was an existing
maintenance order under Section 125 Criminal Procedure Code it was
only in realisation proceedings that any payment made under the order of
civil Court for interim maintenance has to be taken into account. It was
held that so far as the question of majority of the children is concerned
that can be a ground for cancellation of maintenance order passed in
their favour. If the husband so chooses he can file an application under
Section 127 Criminal Procedure Code for cancellation of the
maintenance order in favour of the children on the ground that they have
attained majority. In cancellation proceedings the Magistrate can even
pass order of cancellation with retrospective effect the date each of the
child attained majority. 3
1 Rajendra Prasad Gupta vs. State of U.P., II (1991) DMC 113 All.
2 Raja Ram vs. Jain Mala Jain, II (1991) DMC 252 All.
3 Raja Ram vs. Jain Mala Jain, ibid.
Summery remedy—Scheme 397
Another view is that if there is a discretion vested in the

Magistrate, then no obligation can be imposed upon him to follow the
judgment of a competent civil court. The two jurisdictions are
independent of each other and where a person refuses or neglects to
maintain the parents the wife even though divorced, and children even
though illegitimate, the Magistrate, subject to the conditions and
limitations stated in the Code has an obligation to make provision for
them in order to prevent penury, vagrancy and misery. These wholesome
provisions were enacted as early as the Act 25 of 1861. Even Section 4
of the Act does not stand in their way. That Section renders all laws
inapplicable if made before the Act and are in consistent with any
provisions of the Act. Section 125 was enacted after the Act and was not
inconsistent with Section 125 of the Code can stand side by Act and
Section 125 of the Code can stand side by side. 1
Their scope and purpose are different. A mere order of permanent
alimony or maintenance is not equivalent to maintaining the wife and
cannot oust or take away the jurisdiction of the Magistrate. 2
Such an order will of course be relevant only in considering what
form of order the Magistrate should make Section 125 contains no
direction that an order under that Section cannot be made if there is a
decree for maintenance of a civil court. 3
Even an agreement between the parties will not of itself be a bar
to an order under Section 125 of the Code. 4
The Magistrate has a real discretion and though he must exercise
it judicially, he cannot be asked to surrender it even where the civil court
is satisfied that the husband is bona fide prepared to maintain the wife.
Therefore, it has been held that a decree of restitution of conjugal rights
obtained with the object to get the Magistrate’s order for cancelled, with
not justify the Magistrate to cancel his order., 5 where a decree passed by
the civil court becomes in executable for some reason or other, an order
under Section 125 can be made and maintained. 6 Even where there is no
strict proof of marriage and parties went through some form of marriage
1 Nanak Chand v. Chandra Kishore Aggarwal , AIR 1970 SC 446.

2 E.C. Kent vs. E.E.L. Kent, AIR 1926 Mad 59.
3 Taralakshmi Nanuprasad, AIR 1938 Bom 499.
4 Prabhu Lal vs. Rami
5 Pavakkal vs. Athappa Goundan, AIR 1925 Mad 1218; Fakruddin
Shamsuddin Salyed vs. Bai Janab, AIR 1944 Bom 11; Kuti Bala
Dassi vs. Nabin Chandra Das AIR 1955 Cal 108
6 Mohamed Ali Mithabai, AIR 1930 Bom 144; Govindasmi Mudaliar
vs. Muthulaksmi Ammal, 1966 Cr. LJ 732.
and lived as husband and wife the Magistrate can apply factum valet and
raise a presumption of a valid marriage. 1 The question whether a decree
or an order of civil court would bear an order under Section 125 of the
Code would, therefore, depend upon the facts and circumstances of
each case.
Nataranjan J. in Linga Gounder v. Raman, 2 held that Section 125
does not lay down either that the existence of a decree for maintenance
passed by a civil court will bar the jurisdiction of a Magistrate to
entertain a petition for maintenance or that if there had been an earlier
decree by a civil court, a Magistrate must confine his award only to the
quantum fixed by the civil court. 3
Section 125(1) of the Code prescribes that Magistrate can order a
person to make a monthly allowance for the maintenance of his wife or
child, if such person having sufficient means neglects or refuses to
maintain his wife who is unable to maintain herself. The power to grant
maintenance is conferred on a Magistrate provided two basic
requirements are established. The first requirements is that the wife is
unable to maintain herself and the second is that her husband has
sufficient means but neglects or refuses to maintain the wife. The
Explanation to Sub-section (3) merely provides the guideline to the
Court and prescribes that when husband contracts second marriage, then
the wife is entitled to live separately from her husband. The Explanation
by, itself does not enable the wife to claim maintenance under Sub-
section (1). A wife may be entitled to live separately from her husband
because the husband has contracted second marriage but that fact by
itself is not enough for a Magistrate to award maintenance. The wife has
to establish that she is living separately and she is unable to maintain
herself and her husband has neglected or refused to maintain her. Unless
these facts are established, the wife is not entitled to claim maintenance
merely because the husband has contracted second marriage and that fact
entitles her to live separately. 4
Scope of jurisdiction
In a proceeding under Section 125 of the Criminal Procedure
Code the Court does not determine the status of parties and it does not
1 Parvathy Amma vs. Gopal Gounder, 1956 MLJ 408 and Pachigolla
Srinivasarao vs. Pachugoola Samundram, 1975 Cr LJ 1581
2 1978 Cr LJ 469.
3 Referred and relied in Kuldeep Kumar vs. Chander Kanta, I (1984)
DMC 48 Delhi.
4 Mustafa Shamsuddin Shaikh vs. Shamshed Begum Mustafa
Shaikh, I (1991) DMC 34 Bom.
Summery remedy—Scope of jurisdiction 399
given any finding having the value of res judicate in respect of the
parentage or matrimonial status. The provisions of the Chapter XI of the
Code are meant to preserve peace and avoid strife in society by
providing immediate relief to parties who are neglected, and who
otherwise would resort to vagrancy, mendacity or other anti-social
activities. In a proceeding under Chapter IX, Criminal Procedure Code,
the role of the Magistrate is only to find out whether there is a prima
facie case in the claim of the person approaching the court for an
immediate relief. He has no time, no jurisdiction to embark upon an
elaborate enquiry. 1
The intendment of Section 125 Criminal Procedure Code is to
prevent vagrancy by compelling a person to support his wife or child or
father or mother unable to support itself. That being the object and
intendment, the above Section does not aim at determining legal rights.
The powers of the criminal Court under this Section are limited in scope
and the orders passed there under are subject to any final adjudication
that may be made by Civil Court between parties respecting their civil
rights and status. The proceedings therein are summary in nature and
cannot be equated to cases like regular civil suit for maintenance or a
regular criminal prosecution for bigamy. The order passed being
tentative are subject to final determination of rights of parties by Civil
Court and are also liable to be varied with change of circumstances.
When the said order are subjected to final decision in the civil suit and
are susceptible for removal by any decree passed in the civil proceeding,
the degree of proof in maintenance cases arising under Section 125
Criminal Procedure Code is less and it is sufficient to prove, that there
was a physical union between a man and a woman for a considerable
length of time and that a child is born through the said physical union
from which springs a presumption that the child is born to the
said person. 2
The provision under Section 125 are summary in nature, and
provides for swift and cheap remedy against a person who deprives his
wife or neglects or refuses to maintain her or his minor child, legitimate,
or illegitimate, unable to maintain itself. Section 125 prescribes a
summary procedure. The findings are not final and the parties are at
liberty to agitate their rights in a civil court. The summary procedure
does not cover entirely the same ground as the civil liability of the
husband or father or son under Personal Law to maintain his wife, child
or parent. When substantial issue of civil nature are raised, the remedy
1 K.M.S. Mani vs. Tamizharasi, I (1988) DMC 275 Madras.

2 Doddi Nagulu vs. Doddi Mutyalamma, I (1994) DMC 236 AP.
lies only in civil courts. If that is so, there is no substance in the

contention of the husband that the revisional court has not considered the
legal issue involved in the case. The husband is not without any remedy
and this case being one of summary nature and when a point is raised
before High Court which was not raised at the earliest point of time,
High Court would not entertain the said ground at such belated stage. 1
Scope of revision
In revision evidence cannot be reassessed. But if in assessment of
evidence a legal mistake has been committed by the Trial Court, the
same can be corrected in revision. Cardinal principal is that in
matrimonial or maintenance cases solitary evidence of a spouses
attributing unchastity or adultery to the other party, should not be relied
upon because such spouse is extremely interested in the case. 2
Second marriage of husband

In one case the court below proceeded on the footing that because
opponent-husband belonged to Mohammedan community and as the
Mohammedan Law permits a Mohammedan male to keep four wives at a
time, this ground of second marriage cannot be treated as a reasonable
ground for staying separate and claim maintenance. It was observed
as under:
‘If the new taken by the courts below is accepted then it would
mean that a particular type of conduct or behaviour which may be
permissible under personal law of a party cannot be set up as a
ground for claiming maintenance. The obvious consequence of
the aforesaid proposition would be that a husband belonging to
Hindu community may keep a mistress or a concubine with him
and say that law does not prohibit him from keeping a mistress
and/or a concubine and therefore this cannot be a ground for his
wife to stay separate and claim maintenance. This would
obviously be absurd and such an argument cannot be sustained
even for a moment for the simple reason that conjugal house
cannot be maintained run smoothly unless both the spouses act
with self restraint and have respect for the feeling of each other.
In matrimonial relations, it is expected of both the spouses to
behave in such a fashion that one’s behaviour or conduct does not
become an irritant or a source of mental agony to another. Having
regard to the dominating position of make in Indian Society, it
should be all the more necessary for husband to see that he
behaves in such restrained fashion that his behaviour and conduct
does not prove to be a source of mental agony to his wife. The
behaviour complained of by the wife may be perfectly legal and
1 Siddalingappa vs. Yellabai, I (1983) DMC 248 Karnataka.

2 Dhanalakshmi vs. R. Prasanna Kumar, I (1990) DMC 36 SC.
Summery remedy—Second marriage of husband 401
even permissible under persona law of the husband. But if such

behaviour proves to be an irritant to the wife or it becomes a
source of mental agony, then the same can surely be made a
ground for staying separate and claiming maintenance. No self
respecting woman would like that her husband may contract a
second marriage. If second, third or even fourth marriage is
permissible under Mohammedan Law, a Mohammedan male
indulge in that luxury. At the most be may not be liable for
offence of bigamy. But if such a behaviour proves to be an
irritant to his wife and if the same becomes a source of mental
agony to her, he cannot take shelter under his personal law and
say that he is not liable to pay maintenance to his wife. In a given
case, Mohammedan wife would surely be entitled to live separate
and claim maintenance solely on the ground that the very idea of
contracting second marriage by her husband is abhorrent to her
mind and therefore the second marriage by her husband cause
agony and cruelty to her. In such a situation husband cannot take
shelter under his personal law and claim immunity from paying
maintenance to his wife.’ 1
A statutory right flows from Section 125(1) of the Code of
Criminal Procedure. That section makes the maintenance incidental to
un-dissolved marriage. Reference to second wife can be found only in
the Explanation to Sub-section (4) of Section 125 of the Code of
Criminal Procedure. This sub-section does not create any right in the
wife. It only declares that the second marriage of the husband would be
considered as a sufficient cause for the wife to refuse to live with the
husband. It says nothing beyond that Sub-section (4) says that even after
the passing of the order of maintenance if the husband shows his
willingness that he is prepared to maintain is wife in case she comes to
reside with him, then that has to be probed into by the Court. the
Explanation to Section 125 of the Code says that second marriage of the
husband will be justifiable cause for the wife to stay separately from the
husband. Can it be said in these circumstances that the wife has a
statutory right to claim maintenance only because the husband marries a
second wife? The question was answered in these words:
‘In my opinion, not. We have to go to the root cause as to when
and why the wife started residing separately from her husband.
Neglect and/or refusal conveys something more than more
omission to discharge a duty. It requires animus also. If is from
this point of view that the court has to consider why the wife is
living separate and whether her living separately is justifiable in
the circumstances. Here the wife within 4 months of her marriage
goes to her father. The husband says that she went to her father
1 Banabibi Sikandarkhan vs. Sikandarkhan Umarkan, II (1983)

DMC 375.
voluntarily. The wife says that she was driven from the
matrimonial house. It is not necessary for us to go into this
controversy. Further circumstances show that there was a
litigation initiated by the husband for restitution of conjugal
rights. It shows that he had a very keen desire to have the wife
under his shelter so that the matrimonial obligations could be
discharged. At this time there was no second wife. The Civil
Court probed into the matter in details and on facts it came to the
conclusion that it was the wife who has deserted the husband and
that too for no justifiable cause. This finding has become final as
no appeal has preferred by the wife. In view of these findings, it
does not lie into the mouth of the wife no to say that she did nor
desert her husband and it was the husband who has driven her out
of the house. She has to accept the finding of the Civil Court as
far as the desertion is concerned. there is no choice left open to
her. From this point of view, it cannot be said that the husband
and under obligation, either statutory or otherwise, to maintain a
wife who has deserted him without any justifiable cause. The
husband is no doubt under obligation to maintain his wife and
child. The wife has to prove in these circumstances that the
husband has neglected and/or refused to maintain her. In view of
the findings recorded by the Civil Court, it is not open for the
Criminal Court to record a finding of ill-treatment which has been
negatived by the Civil Court. When the Civil Court has found as a
fact that wife has deserted the husband, there can no finding of
refusal or neglect to maintain.’ 1
The Supreme Court has also held that the second marriage being
null and void, the second wife is not entitled to maintenance. 2
Second revision
What cannot be done directly cannot also be one indirectly. To
circumvent a bar specifically imposed under the Code of Criminal
Procedure resort to the provisions of Article 227 of the Constitution of
India for moving a second Revisional application is deprecated and if the
provisions of Article 227 of the Constitution of India is allowed to be
invoked in by-passing a bar imposed by the statute in the absence of any
of the guidelines laid down by the Apex Court, the dream of the founding
fathers of our Constitution will be shattered. In this context the Supreme
Court observed 3 as under:
“Where the statute banned the exercise of revisional power by the
High Court, it would indeed require very exceptional
1 Gulam Jilani vs. Sahera Bano, I (1989) DMC 245 Bombay.

2 Khemchand Om Prakash Sharma vs. State of Gujarat, 2000 (3)
SCC 753: 2000 SCC (Cr) 748
3 Jagir Singh vs. Ranbir Singh, AIR 1979 SC 381.
Summery remedy—Service by post 403
circumstances to warrant interference under Article 227 of the

Constitution, since the power of superintendence was not means
to circumvent statutory law.”
Sentence
In one case the learned Magistrate sentenced the husband to
undergo 20 months’ simple imprisonment on the ground that there was
default for 20 months. But that is permissible under Section 125(3). A
Full Bench of Bombay High Court 1, held that the power of the Magistrate
is in respect of whole or any part of each month’s allowance remaining
unpaid to sentence a person for a term not exceeding one month. The
Full Bench upheld an order of the Magistrate sentencing the husband to
be imprisoned for a term of 15 days in respect of each month for which
the allowance remained unpaid. Therefore it is open to the magistrate
under Section 125(3) to pass the sentence of imprisonment up to one
month in respect of each month. However imprisonment for 20 months
was held to be severe. It was accordingly reduced to a term at the rate of
9 days in respect of each month, in total 180 days, i.e. for 6 months. 2
Separate living by agreement

Right granted to the wife and children for maintenance under
Section 125, Criminal Procedure Code is very serious and valuable right.
There must be cogent evidence to show that this right had been given up
by the wife or the child’s mother as the case may be. Husband had not
stated about the differences between them which had made their living
together impossible and therefore, document cannot be viewed as
operating as mutual consent between them for their living separate. 3
Service by post
In a case, where the person against whom claim for maintenance
is made is residing abroad, it is not practicable for the Court to ensure
that summons is served on him by a police officer or by an officer of the
Court issuing summons, or even by other public servants. It will not be
possible for the Court to cause service to be made under Section 64 on an
adult member of his family residing with him for, he would be residing
abroad; affixture under Section 64 also may not be possible since he may
not have residence within the jurisdiction of the Court or anywhere
within India. It may also be impracticable to cause service to be effected
under Section 67 through the Magistrate within whose local jurisdiction
1 in K.R. Chawda vs. State of Bombay, AIR 1958 Bom 99

2 Gangula Pratap Reddy vs. Gangula Vijaylakshmi, I (1983) DMC
181 AP.
3 Harvinder Kaur vs. Paramjit Singh, 1999(1) HLR 260 P&H.
the person concerned ordinarily resides. It was held that the Magistrate,
guided by the broad principles contained in Part A of Chapter VI will
have to devise ways for service or process. There is no legal difficulty,
in the light of these circumstances, in service being effected by
registered post or even through a public servant working in Indian
Embassy or Consulate in a Foreign country. 1
In essence and substance, what the Magistrate should issue is a
notice to the person against whom claim is made, informing him that
such a claim has been made and that it is open to him to appear in Court
and contest the claim. In serving the process, the broad principles
contained in Part A of Chapter VI of the Code have to be followed. Other
recognized ways of effecting service of notice such as by registered post
also could be followed. 2
Service in regard to proceedings under Chapter IX is not to be
effected strictly in terms of the provisions in Part A of Chapter VI of the
Code, though the broad principles of the latter chapter could be invoked
and service by registered post through an officer of the Indian Embassy
abroad would also be valid service. Where service is effected by
registered post or through an Indian Embassy abroad, that would be
sufficient service. Such service cannot be challenged on the ground that
service has not been attempted in terms of the provisions of Part A of
Chapter VI of the Code. 3
Service of process
For valid service entitling the Court to proceed ex parte, due
service i.e., service of notice along with a copy of the application may
not be held necessary. When the date of hearing is known, in the context
of section 125 of the Code, irregularity in service has to be held to be
inconsequential for the purpose of section 126(2). 4
Chapter VI of the Code is captioned “Processes to compel
appearance”. Under Section 126, Criminal Procedure Code, the
Magistrate is not required to compel appearance of the respondent. On
the contrary, if the Magistrate is satisfied that the respondent is wilfully
avoiding service or wilfully neglecting to attend the Court, he has to set

Cri LJ 224.
2 Balan Nair vs. Bhavani Amma Valsalamma, ibid.
3 Balan Nair vs. Bhavani Amma Valsalamma, ibid.
4 Prakash Chandra vs. Raj Kumari, I (1987) DMC 25 MP.
Summery remedy—Service of process 405
the respondent ex parte. This is no because of the nature of the

proceedings under Chapter IX which the Supreme Court in Nandlal
Misra vs. Kanhary Lal Misra, 1 has stated are civil in nature and the relief
given is also essentially civil in nature. Unlike proceedings under
Section 125 of the Code, an accused or a witness as the case may be, has
to be compelled to attend Court, by resorting to the processes made
available to the Court under Chapter VI such as summons, warrant
proclamation and attachment. Since a respondent in proceedings under
Section 125 need not be compelled to attend Court Chapter VI dealing
with processes to compel appearance cannot apply to Chapter IX. This
further made clear by the language in Section 126 “wilfully avoiding
service”, and not “wilfully avoiding service of summons”. Even Section
126(2) which makes summons procedure applicable to these proceedings,
restricts it to mere recording of evidence and does not make summons
procedure applicable to commencement of proceedings, by issue
of processes.
The Full Bench of the Kerala High Court 2 has held that service in
regard to Chapter IX, is not to be effected strictly in terms of the
provisions of Part A of Chapter VI, though the broad principles of the
latter Chapter could be invoked and service by Registered Post or
through a public servant could be made. The Magistrate guided by the
broad principles contained in Part A of Chapter VI, will have to devise
ways for service of process. When that has been done, such service
cannot be challenged on the ground that service has not been admitted in
terms of the provisions of Part A of Chapter VI of the Code. 3
It follows that, Chapter VI is not applicable to proceedings under
Chapter IX. The Magistrate could issue process to the respondent either
by issue of summons or by issue of notice, sent by Court, by Registered
Post or by hand delivery by a Court Officer or any other public servant
or in any other manner. If the Magistrate is satisfied that the respondent
is avoiding service, he is to set the respondent ex parte. Then again if he
is satisfied that the respondent after service of process, is wilfully
neglecting to attend the Court, the Magistrate could set him ex parte at
any stage of the proceedings. Once service is effected on the respondent
in some mode or other, the same cannot be questioned on the grounds
that service is illegal, as not being in conformity with Chapter VI. 4
1 AIR 1960 SC. 882.

2 Balan Nair vs. Bavani Amma, 1987 Crl. LJ. 399.
Keeping in mind the object with which Chapter IX was enacted

and the nature of the proceedings under it, it follows that, the rigid rules
laid down for serving summons on an accused, facing a punitive trial
cannot be applied to a husband called upon to discharge a moral
obligation to maintain his dependants. Kerala High Court in a Full Bench
decision, 1 after considering the different provisions of the Criminal
Procedure Code and the decisions on the aspect, has expressed the view
that what is really sent to the respondent in a proceeding under Section
125, Crl.P.C. could not strictly be described in “summons” but is really
in the nature of a notice or an intimation to the respondent, that a claim
has been preferred against him and he is put on notice of the same. 2
Whereas under the Code, be it a summons case or a warrant case,
the accused has necessarily to be brought before Court, either through
summons or through warrant, there is no such requirement under Chapter
IX. Even Section 113, 134 and 145 (2), Crl.P.C, require summons to be
served in the manner provided under the Code, on the person against
when the executive authority proposes to take action. Chapter IX is
significantly silent. While Section 126(2), Crl.P.C requires that evidence
in such proceedings should be taken in the presence of the person against
whom an order of maintenance is proposed to be made or in the presence
of his pleader the Chapter does not require that any process to compel
the attendance of the respondent, should be issued. Even the “service”
referred to, in the proviso to Section 126(2), Crl.P.C. is not equated with
summons. The respondent is put on notice that a claim has been made
against him, and, if he chooses, he could appear in court and contest. It is
left to the respondent either to attend the court and contest or refrain
from doing so. 3
In case, the respondent chooses not contest the proceedings and if
the Court is satisfied under the proviso to Section 126(2), Crl.P.C that
the respondent is either wilfully avoiding service or wilfully neglecting
to attend the Court, the court could set him ex parte. In a Criminal trial if
the accused is absent, he was to be brought before the Court, if necessary
through coercive steps. An accused cannot be set ex parte, while the
respondent in a proceeding under Section 125, Crl.P.C can be set ex
parte if he chooses to absent himself. This marks the fundamental
difference in the way in which the framers of the Code have chosen to
treat the two proceedings. Just as in a civil case summons have to be sent
to the defendants by registered post with acknowledgement due, and on
1 Balan Nair vs. Bhawani, 1987 Crl. LJ. 399 Ker (FB)
2 Parthasarathy vs. Banumathy, II (1988) DMC 473 Madras.
3 Parthasarathy ibid.
Summery remedy—Stay of order 407
receipt of summons if the defendant does not appear in court, the Civil
Court has to set him ex parte and proceed to hear the claim of the
plaintiff and grant relief, so too, under Chapter 9, Crl.P.C. a Criminal
Court is empowered to set the respondent ex parte and proceed to hear
the claim of the petitioner and grant relief. It can, therefore, be stated
that what is sent to the respondent could not strictly be described, as
“summons” within the meaning of the Criminal Procedure Code, thereby
attracting Section 65, Crl.P.C. The mode of giving him notice of the
proceedings need not be by taking out a summon to him in Form-I
described as “summons to an accused person issued under Section 62(1),
Crl.P.C. It was held therefore that in an application under Section 125,
Crl.P.C. causing notice to be served on the respondent, by registered post
with acknowledgment due is not illegal. 1
Service of summons on witnesses

Even to witness, ordinary summons through the officer of the
court or through police officer has to be issued, but it is only in the case
of a witness that in addition to such ordinary summons, additional
summons by Registered Post is also possible. It is obvious that in so far
as the parties to a proceeding are concerned, the summons has to be
issued either through police officer or through the officer of the Court. 2
Stay of order
Under sub-section (2) of Section 127 of the Code of Criminal
Procedure, where it appears to the Magistrate that, in consequence of any
decision of a competent Civil Court, any order made under section 125
should be cancelled or varied, he shall cancel the order or, as the case
may be, vary the same accordingly. In the circumstances, it may still be
open to the respondent to move the Magistrate for making an order under
Section 127 (2) of the Code of Criminal Procedure but only after the
decision of a competent Civil Court. 3
When there is no such decision of a competent Civil Court so as
to warrant invoking Magistrate’s jurisdiction under-Section 127(2) of the
Code of Criminal Procedure, exercise of power is not called for. 4
1 Parthasarathy vs. Banumathy, II (1988) DMC 473 Madras.

2 Abdul Kayyum vs. Sultana Begum, II (1984) DMC 217 Bombay.
3 Gayabai vs. Yadavrao, I (1988) DMC 6 Bombay.
4 Gayabai vs. Yadavrao, I (1988) DMC 6 Bombay.
Stay of proceedings
A maintenance proceeding under Section 125 of the Code of
Criminal Procedure cannot be stayed till conclusion of the Civil Suit
challenging the question of marriage. The petition under Section 125 of
the Code of Criminal Procedure is aimed at ameliorating of the plight of
the destitute and helpless women. A proceeding under Section 125 of the
Code of Criminal Procedure is really a summary order which does not
determine the rights of the parties as the Magistrate exercises his
jurisdiction under Chapter IX of the Code of Criminal Procedure which
is a remedial jurisdiction for preventing vagrancy, the decision of the
Magistrate under Section 125 of the Code of Criminal Procedure for
refusal of maintenance or for grant of maintenance cannot be decisive
factor in any civil proceeding between the parties. As such, the plea of
the husband that the question of marriage is under challenge before the
Civil Court cannot come to his aid for staying the maintenance
proceeding under Section 125 of the Code of Criminal Procedure till
decision of the Civil Court. 1
In one case the husband had filed a title suit for a declaration that
the opposite party is not his legally-married wife and he prayed that the
proceeding under Section 488 of the old Code should be stayed during
the pendency of the suit. The opposite party wanted maintenance in these
proceedings. It was held that the suit and, after it is concluded the
appeal, etc., are likely to take a long time. The opposite party cannot be
allowed to be completely without maintenance for all that time.
Therefore it was held these proceedings ought not to be stayed. On the
other hand, it was directed that the Magistrate should proceed to dispose
of the proceedings as quickly as possible. 2
Subsequent events
While deciding a case the courts can take into consideration
subsequent events. Therefore to avoid multiplicity of proceedings, it was
held as under:
‘The event of causing [this] aspersion took place after the
application was filed and before the case was decided. It is,
therefore, a subsequent event. There is nothing wrong in taking
notice of the same instead of forcing the party to file a fresh
application as this would result in multiplicity of proceedings and
unnecessary litigation.’ 3
1 Kumaresh Brambha vs. Bani Das, I (2000) DMC 305 Calcutta.

2 Abdul Hamid Sadiq vs. Bibi Ashrafunnissa, AIR 1965 Patna 344:
1965 (2) Cri LJ 236.
3 Shakuntala vs. Rattan Lal, I (1982) DMC 18 HP.
Summery remedy—Summoning of complainant 409
Sufficient income
Where the wife in her examination admitted that she was working
as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it
was held that the object of Section 125, Criminal Procedure Code is to
prevent vagrancy, by compelling a person to support his wife or child, or
father or mother, unable to support itself. The maximum amount payable
under this Section is Rs. 500/- p.m. This amount is not intended for
leading a luxurious life. The powers of the Criminal Court under Chapter
IX are limited in scope and orders passed thereunder are subject to any
final adjudication that may be made by a Civil Court between the parties
respecting their civil rights and status. Since the wife was getting
Rs. 735/- p.m. which is sufficient to keep her from starvation. She was
held not entitled to claim maintenance from the husband. 1
Summoning of complainant
The proceeding under Section 125 of the Code may be not strictly
proceedings where a party is termed as an accused or a complainant, yet
the same have to be tried in accordance with the procedure prescribed for
summons cases.
In Harbhajan Kaur vs. Major Sant Singh, 2 it has been held court
that proceedings under Section 488 of the Old Code of Criminal
Procedure, which was similar to the Section 125 of the New Code, are
criminal in nature and still the proceedings are to be tried as summons
case although provisions of Section 242 of the Old Code, which are
similar to provision of Section 313 of the Code, are not applicable. 3
The procedure prescribed for summons case is incorporated in
Section 251 to 259 of the Code and Section 256 lays down that if the
summons has been issued on complaint, and on the day appointed for the
appearance of the accused, or any day subsequent thereto to which the
hearing may be adjourned, the complainant does not appear, the
Magistrate shall, notwithstanding anything hereinbefore contained,
acquit the accused, unless for some reasons he thinks it proper to adjourn
the hearing of the case to some other day. Proviso to this Section lays
down that where the complaint is represented by a pleader or by the
officer conducting the prosecution or where the Magistrate is of opinion
that the personal attendance of the complainant is not necessary, the
Magistrate may dispense with his attendance and proceed with the case.
1 Manikkuttan Nair vs. Girija Amma, I (2001) DMC 117 Kerala.

2 AIR 1969 Delhi 298.
Delhi.
The petitioner in this case was represented by a counsel before the trial
Court. Thus, it was held that the Magistrate could dispense with the
attendance of the complainant during the hearing of the petition under
Section 125, Code but it does not dispense with the discretion of the
Magistrate to insist upon the presence of the complainant on any date of
hearing if the interests of justice so require. Therefore by passing the
impugned order the Magistrate was held to be in enforcement of the main
Section 256(1) and was revoking the permission envisaged in proviso to
Section 256(1). There was no illegality or impropriety committed by the
Magistrate in passing the impugned order for seeing that the petitioner
appears on a date fixed when the evidence was to be recorded in order to
see that the identity of the petitioner is fixed. Rather it is one of the
points to be seen in the proceeding under Section 125 of the Code,
whether the petitioner is a destitute and is not earning anything and in
case the petitioner was not employed anywhere as alleged by the
opposite party, the petitioner ought to have filed on affidavit in
contesting the affidavit filed by the other side. 1
Temporary arrangement
An order passed under Section 125, Code of Criminal Procedure
is only a temporary arrangement and that it is open to the parties to
approach the matrimonial court in order to settle permanently their
respective rights. That Court would have full jurisdiction to modify this
order of maintenance after hearing fully the pleas of the parties and
recording their evidence relevant thereto. 2
It is not only the word “district” which one must have regard to,
but the entire expression “any district where he resides”. There appears
to be no reason why the express use of the word “district” by the
Legislature should be given any meaning difference from the normal
connotation of that word and there is no reason at all why in spite of the
use of the words “any district where he (the husband) resides”, it should
be limited only to a Court within that district within whose jurisdiction
the husband resides. 3

Delhi.
2 Juliet Vasantha vs. Antony Marimuthu, II (1985) DMC 223
Madras.
3 Shantabai W/o Vishnupant vs. Vishunpant Atmaram Kulkarni,
AIR 1965 Bombay 107: 66 Bom LR 741: 1965 Mah LJ 137: 1965
(2) Cri LJ 73.
Summery remedy—Territorial Jurisdiction 411
The object of the section appears to be clear enough: Where a

husband and wife have fallen out and the wife is required to make an
application either for herself or for her child, she should not be put to the
harassment of going to the vary place where the husband is at the time of
the application residing. If that were so, the recalcitrant husband has
fallen out with the wife could move about from place to place and thus
make it impossible for the wife to choose a place in which to prefer her
application for maintenance. At the same time it is clear that a fractious
woman should not be enabled to harass her husband by making an
application at any place very far from the place where the husband
resides after their separation, and it seems to me that having regard to
these rival claims of the two spouses the legislature limited the
jurisdiction under Section 488 to the district where the husband resides,
that is to say, the jurisdiction was given to any magistrate in the district
so long as the husband was resident in the district over which the
magistrate held jurisdiction. 1
The exercise of jurisdiction under Section 488 was limited to
Presidency Magistrate or a Magistrate of the first class and a first class
Magistrate’s jurisdiction was defined by Section 12 of the old Code. The
jurisdiction under Section 12(1) was conferred upon a Magistrate
districtwise and it was with reference to that jurisdiction that it seems
that provisions of other sections of the Code will have to be constructed,
particularly Section 488(8). 2
Generally speaking proceeding whether civil, quasi-civil or quasi-
criminal can be instituted where cause of action arises. When the social
purpose of Section 125 Criminal Procedure Code is to prevent vagrancy
and destitution the cause of action for proceedings under Section 125
Criminal Procedure Code arises at the place where the person claiming
maintenance is and is apt to face vagrancy and destitution. It is, no doubt
true that proceedings can be instituted at the place where the defendant
resides because that would be the place where ultimately the order of
maintenance, if passed, would be enforced. Where the Code is silent on
the point whether the father or the mother can institute proceedings at
the place where he is, the general principle should apply. 3
Thus it is obvious that the old Code did not specifically provide
that the helpless person may claim maintenance at the place where she or
he is. It only specified that the person from whom maintenance is
1 Shantabai ibid.
2 Shantabai ibid.
3 Ganga Sharan Varshney vs. Shakuntala Devi, I (1990) DMC 71 All.
claimed ‘resides’, ‘is’ and where he last resided with his wife. In the new
Code of Parliament clearly intended that the helpless person should be
allowed to institute proceedings where he or she resides and, therefore,
in Clause (b) of Section 126(1) the Parliament introduced ‘where he or
his wife resides’. But in this clause the Parliament omitted mother or
father. Then the Parliament intended to give facility to helpless person to
claim maintenance at the place where he or she resides, omission of
month of father in the said clause is accidental or inadvertent. The
intention of the Parliament is clear that the helpless person should be
given facility of claiming maintenance at the place where he or
she resides. 1
Mention of the place of marriage in the pleading and evidence is
necessary only for the purpose of the jurisdiction of the Court in which a
proceeding can be initiated. For initiating a proceeding which Section
125, Criminal Procedure Code the place of marriage is quite irrelevant,
because according to Sub-section (1) of Section 126, Criminal Procedure
Code a proceeding under Section 125 may be taken against any person in
any district where he is or where he, or his wife resides, or where he last
resided with his wife, as the case may be, with the mother of the
illegitimate child. 2
Section 126(1) Criminal Procedure Code lays down the
jurisdiction of the Court where petition under Section 125 Criminal
Procedure Code can be moved. A bare reading of this section shows that
the application under Section 125 Criminal Procedure Code can be filed
by aggrieved person in any district where he or she the resides or where
he or she last resided together. After laying down this principle of law,
on facts of the case it was held as under:
‘Police Station Chakia as well as Police Station Ram Nagar
within the district of Varanasi. Her filling petition at Varansai
and filing the same at Chakia where she was earlier residing does
not make any difference. It is for the administrative convenience
that in a district powers have been conferred upon various
Judicial Magistrate in respect of various Police Station, but a
Magistrate is not debarred under the law for passing any order or
for entertaining any case of any other Police Station of the
district. It may be a violation of administrative instructions and
orders and not a violation of legal provisions and he violation of
administrative instructions does not make an order illegal. The
Chief Judicial Magistrate in the district can assign any case to
any of the Magistrate under his control in that district. Even in
1 Ganga Sharan Varshney ibid.

Summery remedy—Territorial Jurisdiction for attachment of salary 413
this case the order has been passed by the Chief Judicial
Magistrate allowing retention of this case by the Additional Chief
Judicial Magistrate at Varansai and that order cannot be said to be
illegal. Even otherwise if a Magistrate having no territorial
jurisdiction entertains a case and passes an order that order does
not become illegal. It can be said the irregularity has been
committed by the Magistrate but it cannot be said he has
committed any illegality. The word ‘district’ has been specifically
used under Section 126(1) Criminal Procedure Code.’ 1
According to clause (1)(b) of Section 126 Cr.P.C. the proceedings
under Section 125 Cr.P.C. may be taken against any person in any
district where he or his wife resides. The Dictionary meaning of
“resides” is “to droll permanently or continuously; have a settled abode
for a time; have one’s residence or domicile”. “Reside” means something
more than a flying visit or a casual stay. There shall be an intention to
stay for a period, the length of which depending upon the circumstances
of each case. A person resides in a place if he makes it his abode
permanently or even temporarily. In order to find out whether the
petitioners actually resided or they had some intention to remain at a
place and nor merely to pay a casual visit, it should be considered
whether the period of stay was merely for a visit or for residence
although temporary. 2
Territorial Jurisdiction for attachment of salary

A warrant under Section 421(1) (a) has to be executed with the
aid of Section 422 and a warrant under Section 421(1) (b) with the aid of
Section 423. When concededly, the warrant is purported to be issued
under Section 421(1)(a), such a warrant could be executed under Section
422 within the local jurisdiction of the Court. It could also extend to the
attachment and sale of any such property outside such jurisdiction when
it was endorsed by the District Magistrate within whose jurisdiction such
property was found. But when no such endorsement from the District
Magistrate was obtained, Section 466 steps in to cure the defect that no
attachment made under the Code shall be deemed unlawful on account of
any defect or want of form in the writ of attachment or other proceedings
relating thereto. From No. 19 in the second Schedule, prescribed for the
1 Anand Prakash Gupta vs. Chief Judicial Magistrate, I (1996)

DMC 211 All.
2 Sadasivuni Pushpa vs. S. Divakar Rao, I (1985) 380 Orissa;
Ananth Gopal Pai vs. Gopal Naryana Pai, II (1984) DMC 470
Karnataka.
purpose, discloses that it can be addressed to a police officer or even to

any other person named by the Magistrate to execute a warrant. 1
Equally, the objection that the order as such was not executable
in the State of J&K on account of the Code being not extended to that
State is also of no substance because of the person to whom the warrant
of attachment is directed is not immune from the order of the Court
merely due to his placement in a territory to which the Code does
not extend. 2
Time barred revision

The law of limitation is well settled that every day’s delay has to
be explained. Section 14 of the Limitation Act also provides that the
period during which any party bonafidely carried on proceeding before
some other court, not having jurisdiction, is to be excluded. 3
It was held that the argument that if a revision was pending under
any wrong advice even then the period during which the revision was
pending may be excluded. Taking an indulgent view even the period
spent in proceeding for setting aside the ex parte judgment as per
application preferred could also be excluded for argument sake. But
when that also did not cover the entire period, on facts the revision was
held to be not entertainable. 4
Transfer of proceedings
Although Section 192(2) of the Code does not apply there is no
legal bar to transfer the case administratively to any other Magistrate to
the First Class competent to hear and decide the application under
Section 125 of the Code. 5
Void marriage
See under Nullity Marriage.
Voidable marriage
A wife whose marriage is in contravention of Section 5 and 11 of
Hindu Marriage Act cannot be treated as legally wedded wife who could
successfully claim maintenance from the alleged husband. 6
1 Madhav Kumar Anand vs. Sudesh Kumar, II (1984) DMC 45 P&H.

2 Madhav Kumar Anand ibid.
3 Sheo Kumar vs. Kanta Devi, I (1984) DMC 180 All.
4 Sheo Kumar ibid.
5 Manowara Bibi vs. Abdus Samed Laskar, I (1983) DMC 227
Calcutta.
6 Ramwati Gupta vs. State of U.P., II (1984) DMC 67 All.
Summery remedy—Wife abandoning husband 415
Wife abandoning husband

In one case the non-petitioner tried his level best to keep the
petitioner with him but the petitioner left the non-petitioner and started
living with her father. The petitioner waited for a period of two years
and finding no other alternative contracted a second marriage. The
parties were Mohammedans and there was no offence committed by the
non-petitioner in contracting the second marriage. Both the courts below
held that it was the petitioner who was guilty in not living with the non-
petitioner, and if the petitioner on her own accord has left the house of
the husband and is living with her father in these circumstances she
cannot be held entitled to any maintenance from the non-petitioner. High
Court held that it could not make a reappraisal of the evidence in a
petition under Section 482 Cr.P.C. 1
1 Bhanwari Bai @ Ramji Bai vs. Mohd. Ishaq, II (1983) DMC 76 Raj.
Chapter 10
SYNOPSIS
Attachment and sale .......................416 Future default ................................ 434
Attachment of future salary ............417 Hearing of appeal .......................... 434
Attachment of property ..................417 Imprisonment of defaulting husband435
Attachment of provident fund & Inherent jurisdiction ...................... 438
gratuity ...........................................417 Instalments..................................... 438
Attachment of salary ......................418 Limitation ...................................... 439
Change in circumstance .................421 Moral duty ..................................... 441
Charge on property ........................422 Nature of right ............................... 441
Compromise decree .......................423 Notice before warrant ................... 442
Considerations ...............................423 Place of execution ......................... 442
Contempt proceedings ...................424 Procedure for recovery.................. 442
Death of husband ...........................424 Recovery and modification ............ 444
Default in payment .........................425 Remedies available ........................ 444
Defence ..........................................425 Stay of order/ proceedings............. 445
Effect of Act of 1986.......................426 Striking off defence ........................ 450
Effect of non payment on appeal ....427 Subsequent events .......................... 451
Effective date..................................428 Waiver ........................................... 451
Execution of order..........................433
Attachment and sale

The expression ‘attachment and sale’ used in Section 421(1)(a) of
the Code of Criminal Procedure does not necessarily mean tangible
corporeal property; on the other hand, it includes ‘debt’ as well. If a
person, from whom the fine amount is to be recovered in a criminal case,
in the manner prescribed for the levy of fines, has no tangible movable
property, but has only some assets of intangible movable property, it
cannot definitely be said that the State shall not be entitled to recover the
amount of fine or other amounts which are leviable as fine, by
proceeding against the aforesaid intangible movable assets. Therefore,
under Chapter IX of the Code of Criminal Procedure, it would be
reasonable and legal to hold that the intangible movable assets of such a
person would also be liable to be attached, for realising the amount of
Enforcement of order—Attachment of provident fund & gratuity 417
fine. Future salary can be attached for the past arrears under Section
42(1)(a), Criminal Procedure Code. 1
Attachment of future salary

The provision of Section 421(1)(a) of the Code need not even be
subjected to any strained interpretation so as to enable the Court to
attach the salary of the person concerned. Clause (a) provides “for the
levy of the amount by attachment of any moveable property belonging to
the” person concerned. It is nobody’s case that money is not moveable
property. The warrant issued under clause (a) becomes effective the
moment the salary accrues due to the person concerned or when that
money becomes payable to him and until then the direction contained in
the attachment warrant remains dormant. In this view of the matter, it
cannot be said that the salary payable to an employee is not amenable for
a levy issued under clauses (a) referred to above. 2
By virtue of Section 125(3) of the Code of Criminal Procedure
and an earlier judgment 3, warrant of arrest cannot be issued and the party
defaulting in payment cannot be sent to civil imprisonment as a matter of
first resort and that necessarily resort, prior in point of time, has to be
made to attach the property. However it was held that in peculiar facts of
this case, it cannot come to the rescue of petitioner. It was conceded that
petitioner had no property so that the same could be put to auction with a
view to provide maintenance to wife. There was persistent, default for
paying the maintenance allowance to wife in the present case and
therefore remand of the case directing the Magistrate in first resort to
proceedings of attachment was held to be an exercise in futility. 4
Attachment of provident fund & gratuity

In one case the ex-parte decree for divorce had already been
passed and the matter was pending before the Family Court on
application of the opposite party under order 9 rule 13 code of civil
procedure. The apprehension of the opposite party was that the applicant
is likely to leave and go away out of the jurisdiction of the Family Court
and in such circumstances a restrain order be passed so that she may not
be deprived of the legitimate claim. The opposite party had not obtained
1 Mani vs. Jayakumari, 1999(1) HLR 105 Madras.

2 Rudraiah K.V. vs. Muddagangamma B.E., (1984) DMC 390
Karnataka.
3 Raj Kumar vs. Krishna Kumari, 1984(2) Recent Cr Reports 434:
1984(2) Chandigrah Law Reporter 396
4 Jaivir vs. Santosh, II (1995) DMC 232 P&H.
any judgment and order in her favour till the date of her application for
the restrain order. Her only case was that the ex-parte decree for a
divorce which was passed by the Family Court be recalled and the case
be restored to its original number. On consideration of matter it was held
that the Family Court took a drastic step and passed the impugned order
without caring to look to the provisions of Section 60 (g) C.P.C., Further
it was also clear that on the date when the impugned order was passed,
the application for restoration was pending and there was no such
proceedings pending before him in which such restrain order was
called for. 1
On one hand, the Family Court stopped the source of income
which was to be available to the applicant for payment for payment and
the other order directs for making a payment of interim maintenance to
the wife and son. The order was held to be patently illegal and
without jurisdiction. 2
Attachment of salary
Assuming that future salary can be attached for the recovery of
past arrears of maintenance under Section 125(3) Criminal Procedure
Code, it does not confer power to the Courts to attach the future salary
for the future maintenance. By ordering the attachment of the salary for
the future maintenance, it was held that the Magistrate exceeded his
jurisdiction and in fact, he exercised the jurisdiction not really vested
upon him under any of the provision of the Criminal Procedure Code. 3
If a person, from whom some amount is to be recovered towards
the fine imposed on him according to law, or if some amount is to be
recovered from him in the manner prescribed for the levy of fines, has no
tangible moveable property, nor any moveable property, but he has only
some assets of intangible moveable property, can it be said that the State
shall not be entitled to recover the amount of fine, or other amounts
which are leviable as fine, by proceedings against the aforesaid
intangible moveable assets? That is certainly not the purpose, object or
intendment of law. Again, if under the civil law, a creditor of such a
person is entitled to attach intangible moveable assets for satisfying his
private claim, can it be said that the creditor would be entitled to do so in
law, but not the State or, for the purpose of Chapter IX of the Code of
Criminal Procedure the neglected dependents of the said person? By all
1 Trilochan Singh vs. Kuljit Kaur & Two Others, I (1992)

DMC 220 All.
2 Trilochan Singh ibid.
3 Mani vs. Jayakumari, 1999(1) HLR 105 Madras.
Enforcement of order—Attachment of salary 419
means, it would be reasonable and legal to hold, that the intangible

moveable assets of such a person would be liable to be attached and sold
for the purposes of levying the amount of fine or the amounts which are
leviable as fine. 1
In the context of provisions contained in Chapter IX of the Code
of Criminal Procedure, read with Section 421(1)(a) of the Code of
Criminal Procedure, some High Court have taken views which support
the aforesaid conclusion.
In K.V. Rudraiah vs. Smt. B.S. Mudda Gangamma, 2 a Single
Judge of the Karnataka High Court observed thus:
“It the instant case, according to me, the provisions—Section
421(1)(i) of the Code—need not even be subjected to any strained
interpretation so as to enable the Court to attach the salary of the
person concerned. Clauses (a) provides “for the levy of the
amount by attachment of any moveable properly belonging to the
“person concerned”. It is nobody’s case that money is not
moveable property. See Pichu Vadhiar v. Secretary of State for
India in Council” 3.
“I am unable to agree with him, and, with due respect the
decision in Baldevi (1955 Cri.LJ 621) (Raj). The warrant issued
under Clause (a) becomes effective the movement the salary
accrues due to the person concerned or when that money becomes
payable to him and until then the direction contained in the
attachment warrant remains dormant. In this view of the matter it
cannot be said that the salary payable to an employee is not
amenable for a levy warrant issued under Clauses (a) referred to
above.”
In Madhave Kumar Anand vs. Sudesh Kumari 4 warrants were
issued by the Magistrate for recovery of the maintenance allowance for
the purpose from 17.5.1981 to 18.5.1982 and from 19.5.1982 to
18.2.1983 for attachment of salary when duly found in the office of the
petitioner after it had been withdrawn from the Government Treasury. It
was observed, that such warrant could, by no means, be called effecting
attachment of future salary. The learned Single Judge of Punjab and
Haryana High Court then proceed to observe:
“It is precisely for this reason that Section 466 of the Code
regarding objections to writs of attachment is brought in. For it
cannot be forgotten that Section 125 Criminal Procedure Code,
provides a summary remedy to the wife or child to claim
1 Bhagwat vs. Baburao, II (1994) DMC 195 Bombay.

2 1985 Cr.LJ 707.
3 (1917) 38 Ind Cases 986: 1917 (18) Cri.LJ 496 (Madras).
4 II (1984) DMC 45.
maintenance for herself in a standard of living which is neither

luxurious nor penurious but is moderately consistent with the
status of the family. No technical impediment in that direction, as
is the mandate of the Code, can be allowed to frustrate that object
or to cognate the process or proceedings. Thus the attachment
orders passed by the learned Magistrate were, quite in order and
cannot be quashed or modified in these proceedings.”
In, Ahmed Pasha v. Wajid Unissa, 1 the decision of the Rajasthan
High Court in Baldevi v. Ramnath 2 and the decision of Goa, Daman and
Diu, Judicial Commissioner’s Court in Ali Khan v. Smt. Harjrambi and
Another, 3 were considered. Pointing out that in those cases, it was held
that the husband could not be said to have earned his future salary and
that the salary could not be attached, it was observed:
“With due respect, I find myself unable to agree with this view. It
is now common practice that the salary of officials including
clerks and the peons, is being attached by money lenders or by
the Banks in execution of money decrees. If the salary is not
available for seizure or the person, who gets the salary, cannot be
said to have earned his future salary as opined by the learned
Judge in the above two decisions the salary should not be
available for attachment for money lenders or for the Banks even
in the execution of a money decree. But Section 60 of Criminal
Procedure Code itself provides for attachment of the salary to the
extent indicated therein in execution of a money decree or a
decree for maintenance. Hence, the view that the salary cannot be
said to have been earned by the person and it cannot, therefore,
be available for the seizure, is not in conformity with the
provisions of Section 60. When a money lender or a Bank has got
the right to attach the salary or an official to the extent indicated
therein in execution of the money decree or maintenance decree,
it is preposterous to say that a wife cannot seek for attachment of
her husband’s salary for recovering the arrears of maintenance
granted by the Magistrate under Section 125(3). A wife who is
entitled to maintenance under Section 125 Criminal Procedure
Code and who is also entitled to recover the arrears under Section
125(3), cannot be placed worst than a money lender. What is
available under Section 60. Civil Procedure Code for a
maintenance decree-holder, can also be made available under
Section 125(3) Criminal Procedure Code for the recovery of
arrears of maintenance.”
1 1983 Cri.LJ 479.

2 1955 Cri.LJ. 621.
3 1981 Cr. LJ 682.
Enforcement of order—Change in circumstance 421
In Re: Yerusuri Lakshminarayana Murthy, 1 yet another Single

Judge of the Andhra Pradesh High Court observed:
“Section 125 Criminal Procedure Code is designed to provide
maintenance to a party who is unable to support herself or
himself. Therefore, it is imperative on the part of the person
against whom the decree is passed to comply with decree. Section
125(3) Criminal Procedure Code provides for enforcement of the
decree and the said section says that and movable property can be
attached. The expression movable property must be given wide
interpretation. In my opinion the salary cannot be excluded from
the category of movable property mentioned in Section 125(3)
Criminal Procedure Code.”
Chapter IX of the Code of Criminal Procedure itself had carved
out a class of women, children and dependent weaklings by providing
them with a statutory right to get maintenance from certain persons who
were liable to maintain them. It was perfectly constitutional to hold that
the aforesaid class deserved some special protection of law even in the
matter of enforcement of the rights which were specially created for
them by Chapter IX of the Code. 2
Change in circumstance
It is true that Sub-section (4) and (5) of Section 125 of Criminal
Procedure Code, 1973 as also Section 127 provide a remedy for
alteration of the maintenance order passed by a Criminal Court.
However, the would not be distinguishing factor for the purpose of
holding that execution of a Civil Court’s decree can be resisted by
raising a contention that the parties have resumed cohabitation. Section
25 of the said Act provides for the alteration of the amount of
maintenance on proof of change of circumstances. It is needless to say
that such an alteration would also include total quashing of the
maintenance order if the circumstances are alleged and proved that such
a quashing is necessary. The provisions of Section 18 and 25 of the
Hindu Adoptions & Maintenance Act are practically similar to the
provisions of Section 125 and 127 of the Criminal Procedure Code. Thus,
on principle there cannot be any difference between an order by a
Criminal Court under Section 125 and a decree by a Civil Court. In view
of this position, the judgment-debtor can not successfully resist the
execution of the decree on the ground that the husband and wife have
resumed cohabitation after passing of the decree. 3
1 1986 Cr. LJ 1846.

Section 25 of the Hindu Adoptions & Maintenance Act, 1956 is only

a codification of the existing provision of the Hindu Law which always
confers upon the Court to alter the maintenance where there is a material
change in the circumstances. Briefly speaking, the law before the
introduction of the Hindu Adoptions & Maintenance Act was that, where a
decree was passed for maintenance and it contained provision for making an
application to alter the quantum of the maintenance on account of change of
circumstances, then and then only an application could be made. Otherwise,
the Court had no jurisdiction to alter the amount of a decree by means of an
application, and it was always essential to institute a suit for the purpose.
The position has not changed under the Act. While Section 25 of the Hindu
Marriage Act expressly lays down a procedure by way of an application,
Section 25 of the Hindu Adoptions & Maintenance Act does not lay down
any such procedure. Thus under Section 25 of the latter Act, alteration in
the amount of maintenance fixed by a decree cannot be ordered by an
application, unless there is provision in the decree itself granting liberty to
the decree-holder to have such variation made by way of an application. In
the absence of such provision, the amount of maintenance fixed by a decree
can be varied only by way of a suit.1
Charge on property
A charge will fasten on the property of a Hindu de hors the
provisions of the Hindu Adoptions & Maintenance Act. That is the effect
of Section 39 of the Transfer of Property Act. 2
Padmanabhan J. of the Madras High Court, elaborately discussed
this aspect with reference to the case law available till then. The Hindu
Law texts enjoin a mandatory duty upon the husband to maintain is wife.
That duty is not dependant upon the husband’s possession of any
property. A wife is treated under the ancient texts as a co-owner of her
husband’s property though in a secondary sense. It is not open to a
husband to effect an alienation of his properties, when such alienation
has the effect of depriving her and other dependents of their
maintenance. A wife is thus entitled to be maintained out of the profits
of her husband’s property. The wife and children can therefore have a
charge upon the properties of the husband and can enforce the same
against a gratuitous transferee. 3

2 Divakaran Pankajakshan vs. Bhargavy Chellamma, II (1985)
DMC 486 Kerala.
3 Divakaran Pankajakshan vs. Bhargavy Chellamma, II (1985)
DMC 486 Kerala.
Enforcement of order—Considerations 423
It is not rare that after estrangement between the parties, the

husband retaliates against the wife even by transferring his property, to
spire her. The facts of the present case would indicate such a mala fide
attempt on the part of the husband. 1
Compromise decree
Where the parties have agreed to certain terms in the
compromise, which do not relate to the suit and accordingly a decree is
passed, the executing Court cannot refuse to execute the decree and such
a compromising decree has got to be executed relating to all the matters
for which there is a decree. 2
What has been agreed to is that for any reason, they could not
live together, the wife would be entitled to execute the decree,
irrespective of the question whose fault it is for separate living. It was
held that there was nothing which was opposed to public policy. The
parties wanted to put an end to further litigation and ultimately the
husband agreed that the wife would be entitled to maintenance if she
decides to live separately. 3
When a clause of the compromise decree, specifically enabled the
wife to execute the decree and claim maintenance from the husband but
the wife decided not to live with her husband it can not be held that the
wife had waived any of her right in the decree. Under a clause of the
compromise decree, she had specifically reserved her right to execute the
decree notwithstanding the fact that she decided to live with her
husband. When she has specifically reserved a right in her favour, there
is no waiver on the part of the wife nor there is any abandonment of the
decree on her side. 4
Considerations
Magistrate found on scrutiny of the facts that the opposite party
was not blame-worthy for the delay in accumulation of the maintenance.
She was hampered from recovering the arrears of maintenance by the
husband who repeatedly procured stay order from the higher courts
resulting in accumulation of arrears. He had no objection for the payment
of the accumulated amount of arrears of maintenance in two instalments.
1 Divakaran Pankajakshan vs. Bhargavy Chellamma,

II (1985) DMC 486 Kerala.
2 Kudupudi Lakshmi Veera Venkatarathnam vs. Kudipudi
Sri Krishna Vara Prasad, 1999(1) HLR 312 AP.
3 Kudupudi Lakshmi Veera Venkatarathnam ibid.
4 Kudupudi Lakshmi Veera Venkatarathnam ibid.
Having considered all these points the Magistrate disposed of the matter
by a brief order which cannot be regarded as illegal. 1
Contempt proceedings
“Civil Contempt of Court” as defined in Section 2(b) of ‘the Act’
means “wilful disobedience to any judgment, decree, direction, order,
writ or other process of a Court or will breach of an undertaking given to
a Court”. In this case the order directing the respondent to pay litigation
expenses and maintenance pendente lite was not complied with. It was
observed as under:
‘Wilful means deliberately, intentionally, self willed. The
respondent is admittedly a Major in the Army. He is getting more
than Rs. 3000/- per month as salary. He has not paid a penny in
compliance of the order. He has not, even expressed his
willingness to pay the said amount in small instalments. In the
facts and circumstances of the case there cannot be any doubt that
the non-compliance of the said order was wilful.’ 2
In the contempt proceeding Court is not warranted to sit on
judgment as to the correctness, legality or validity of the order. The
Court, in contempt proceeding, cannot and will not enquire into the
merits of the order. The party who has been directed to do something by
an order of this Court cannot assail such order in the contempt
proceeding initiated against him for its breach. The order passed by this
Court so long as it stands, has got to be obeyed and its intentional and/or
deliberate violation is punishable as contempt. In other words so long as
the order has not been vacated or modified by the Court granting it, or
has not been reversed or stayed by the Appellate Court, the order must
be obeyed. 3
Death of husband
In law, a maintenance decree would not make any difference. It is
one of the settled principles of interpretation that the Court should lean
in favour of sustaining a decree and should not permit the benefit under
the decree to be lost unless thereby any special reason for it. If the
husband has left behind an estate at the time of his death there can be no
justification for the view that the decree is wiped out and the heirs would
succeed to the property without the liability of satisfying the decree.
1 Virender Kumar Seth vs. Roopa Seth, I (1989) DMC 210 All.
2 Vrinda Anand vs. (Maj.) Arun Anand, II (1986) DMC 341 Delhi;
Narinder Kaur vs. Pritam Singh, I (1985) DMC 181 Delhi: (1987)
Marri LJ 85
3 Shaheda Sarwar Khan vs. Sarwar Ahmed Rauf Khan, II (2000)
DMC 195 Bombay.
Enforcement of order—Defence 425
There is no rationality in the contention that a decree for maintenance or

alimony gets extinguished with the death of the husband when any other
decree even though not charged on the husband’s property would not get
so extinguished. A decree against the husband is executable against the
estate of the husband in the hands of the heirs and there is no personal
liability. The decree indicates that maintenance was payable during the
life-time of the widow. To make such a decree contingent upon the life
of the husband is contrary to the terms and the spirit of the decree. 1
Default in payment
The defaulter could be sentenced to imprisonment for a period of
one year at the most as the wife or the other persons entitled to
maintenance allowance are required to file an application within a period
of one year from the date on which the amount becomes due. Accepting
this contention it was ordered as under:
In the case in hand, the amount of the maintenance allowance
from the date of application i.e. 27.1.1982 to 26.1.1983 became
due only when the Judicial Magistrate passed the parent order on
3.10.1983. The application for execution having been filed on
15.10.1984, is certainly barred by time in view of the provisions
of proviso (i) to Sub-section (3) Section 125 of the Code.
Although in this application the arrears from 27.1.1982 to
26.1.1982 had been claimed, the petitioner could have claimed
arrears of maintenance allowance from 15.10.1983 onwards.
Thus, the order of the Trial Court in sentencing the petitioner to
imprisonment for one year and ten months is certainly illegal
being violative of the above-referred mandate of the legislature
contained in proviso (i) to Sub-section (3) of Section 125 of the
Code. Consequently, the impugned order is party set aside by
accepting this petition to the extent that the petitioner would be
liable to undergo imprisonment for one year only for arrears of
maintenance allowance from 15.10.1983 to 14.10.1984. 2
Defence
Unless and until the order of maintenance passed under Section
125 of the Code is varied, altered or set aside under the provisions of the
Code, it is not open for the husband to contend that he is not liable to
make payment of maintenance allowance. 3
An application for enforcement of maintenance allowance is not
an application for execution. As such it is the duty of the Court to see
1 Nagamma vs. Ningamma, II (1999) DMC 681 Karnataka.

2 Sethi Singh vs. Jass Kaur, II (1992) DMC 249 P&H.
3 Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani,
I (1993) DMC 544 Guj.
that its order of maintenance under Section 125 of the Code is complied
with unless and until that order is modified or altered or set aside in the
competent proceedings under the provisions of Section 125(4)(5) and/or
under Section 127 of the Code. It is also settled proposition of law that
any defence against an order passed under Section 125 of the Code ought
to be founded on a provision in the Code. Section 125 of the Code is
devised and designed to protect the weaker of the two parties, namely,
the rejected or dejected wife. There can be no any other dispute about the
settled proposition of law that if an order for maintenance has been
passed under Section 125 of the Code, against the deserter it shall be
binding and operating until it is altered or vacated in terms of the
provisions of the Code itself. Code is complete on the topic and any
defence against an order passed under Section 125 of the Code must be
founded on a provision in the Code itself. Until that is done it is
enforceable and no plea that there has been change in circumstances of
passing of any order under Section 24 of the Hindu Marriage Act or any
other plea can be permitted to be raised. 1
An order for payment of maintenance may be cancelled for any
other reasons contained in Sub-sec. (5) of Section 125. So under Section
125 such an order can be varied or even cancelled on the grounds
mentioned therein but as long as such an order is subsisting there is no
ground on which the respondent could be allowed to object to the
enforcement of the maintenance order. 2

The very fact that the legislature has used the word ‘application
by a divorced woman’ as the first pre-requisite condition, it shows that
the legislature was of the opinion that merely by moving an application
under Section 127 or 125 Criminal Procedure Code, the husband cannot
take the benefit of Section 7 of the Act. The other salient feature of
Section 7 is that the said application was pending on the commencement
of this new Act of 1986 which means that on the date when the Act came
into force, there must be pending proceeding under Section 125 or 127.
The application by the petitioner-husband in one case was moved
after the Act came into force and, therefore, it cannot be said that it was
pending even after the Act came into force. There is well established
principle of interpretation of a statute that legislature never us
superfluous words. If the legislature would have simply said that all
1 Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani, I

(1993) DMC 544 Guj.
2 Hansaben Rameshkumar Patani ibid.
Enforcement of order—Effect of non payment on appeal 427
proceedings under Chapter IX of the Criminal Procedure Code would be

governed by the new Act of 1986, the probably what the petitioner wants
to argue before this Court would have been justified. The legislature did
not use the words ‘Chapter IX of the Criminal Procedure Code’ and also
excluded Section 128 Criminal Procedure Code which is for enforcement
of order of maintenance, in Section 7 of the new Act of 1986. It is not
insignificant, but more significant. So far as maintenance is concerned
even for the case of divorced Muslim woman, they would get the benefit
of the order passed in their favour before the commencement of the Act
of 1986 and the enforcement of the order could be made. Non-inclusion
of Section 128 in Section 7 of the Act of 1986 pointed out towards the
intention of legislature that they never wanted to stop the payment of
maintenance of divorced Muslim women which became entitled on
account of earlier judgment. 1
Effect of non payment on appeal

In one case while considering Section 24 of the Hindu Marriage
Act, 1955, Sri B.C. Misra J. observed as under:
“………The object behind the provision of law is to provide
financial assistance to the indigent spouse to maintain herself (or
himself, as the case may be) during the pendency of the
proceeding and also to have sufficient funds to defend or carry on
the litigation, so that the spouse does not unduly suffer in the
conduct of the case for want of funds.” 2
It was noticed by Rajasthan High Court 3 as under:—
“……In appears from a bare perusal of the provisions of Section
24 of the Act that the provision has been made in order to provide
means to the spouse who has no independent source of income to
contest a matrimonial processing. The indigent spouse should be
allowed to obtain the requisite maintenance and litigation
expenses from the other party, soon after the filling of the
application under Section 24 of the Act, in order that the indigent
spouse could maintain herself during the pendency of the
proceedings, and the also incur the legitimate expenses for
contesting the matrimonial dispute.”
After referring to the above object it has been held that where the
orders are not complied with by the husband in the appeals under the
1 Idris Ali vs. Ramesha Khatun, I (1990) DMC 107 Gauhati: AIR
(1989) Gau 24: (1988) 2 Gauhati LR 202: (1989) 1 Cri LC 201:
1989 Mat LR 125.
2 Chitra Lekha (Smt.) vs. Ranjit Rai, AIR 1977 Delhi 176.
3 Bhanwarlal vs. Smt. Kamla Devi AIR 1983 Raj 229: 1983
Rajasthan Law Reporter 314: 1983 Rajasthan LR 640: 1983 WLN
322: 1983 Mah LR 268: 1983 (2) Civ LJ 220.
Act, then if he is the appellant, his appeal should be dismissed and if he

is the respondent, the appeal should be allowed against him. 1
Effective date
In interpreting this section it must be borne in mind the purpose
of the provisions of Chapter IX relating to maintenance. This purpose is
to prevent to control vagrancy and destitution in the cases of wives,
children and parents. When a destitute wife, child or parent approaches
the criminal court and satisfies the court of the existence of the
conditions for passing an order under Section 125 of the Code. In the
normal course, the applicant must get maintenance from the date of the
petition, that is, the date on which he approached the court. There is no
provision in Chapter IX of the Code, which takes away the power of the
court to direct payment of maintenance from the date of the petition but,
on the other hand such power is recognised or reserved under Section
125(2) of the Code. A court may omit to mention date from which the
maintenance order is to take effect. The court may specifically direct the
order to take effect from the date of the petition. The court may also
direct order to take effect from the date of the order. Sub-section (2) of
Section 125 of the Code means only that where court has no specifically
directed that the order shall take effect from the date of the petition or
where the order is silent on the point, it shall be payable from the date of
order. It cannot be said that whenever a Court gives a specific direction
either way, it must be supported by reasons recorded in writing. It is
open to the court to take either view and incorporate it in the judgment.
Considering the purpose of the provisions of Chapter IX of the Code and
the specific object they seek to achieve, the Court has full discretion to
direct that the allowance is payable from the date of the petitioner. 2
The plain language of the provision makes it clear that if the
Court does not specially indicates the date from which maintenance shall
be payable, it should be taken to have been ordered from the date of
order. If the order itself indicates the maintenance shall be payable from
the date of application or from the date of order, there can be no
ambiguity and the parties know from what date the maintenance becomes
payable. Ambiguity would arise and parties would be put to difficulty
where the order is silent as regards the date from which the maintenance
is payable. It is to meet such contingencies that Section 125(2) of the
Code lays down that such allowance shall be payable from the date of
order. If the provision is only to the effect that it shall be payable from
the date of order, there will be no discretion left to the Court to make
1 Sarbati vs. Sahi Ram, I (1985) DMC 144 Rajasthan.

2 Mani vs. Isther, (1980) Kerala Law Times 969.
Enforcement of order—Effective date 429
maintenance payable from the date of application. Therefore, the words

following: “if so ordered, from the date of application” have been
incorporated. There is another purpose also underlying Section 125(2).
That is to fix the outer limit of date from which the order is to
take effect. 1
Even in a civil suit for future maintenance, the Court is required
to pass a decree for maintenance from the date of the suit. Ordinarily,
Courts look to the state of affairs, prevailing on the date of the suit.
Where a litigation is prolonged unduly, either on account of the conduct
of the opposite party, or on account of the heavy docket in Court for
other unavoidable reasons, it would be unjust and contrary to the very
purpose of the provision to postpone the effectuation of the order to the
date of the order. Such postponement deprives the claimant of the benefit
of the fruits of a decree which he or she could have obtained through a
Civil Court. Looking at the matter from this perspective also, there is
justification to say that ordinarily the claimant who seeks an order for
maintenance under Section 125 of the Code shall obtain the relief from
the date when she or he approached the Court i.e., the date of application
and only where there are circumstances justifying a contrary view, it can
be postponed to the date of the order. 2
It is pertinent to notice that taking into consideration the object
behind Section 125 the Supreme Court has held there is inherent power
even to make an interim order for payment of maintenance till the
disposal of the application under Section 125. 3
In one case it was established that there was no justification
whatsoever for the husband to neglect to maintain his wife, the husband
was a moneyed person, the wife depended solely on the mercy of father
who has himself a poor primary school teacher, the husband had behaved
very badly with the wife throughout and had even married second wife.
On the top of it, he has given a false offer to maintain the wife. If in this
back ground the learned Magistrate has exercised the discretion vested in
him in favour of granting maintenance allowance from the date of the
application, it is difficult to see any scope in Revisional jurisdiction to
interfere with the said discretion. Indeed, in situation like this,
maintenance allowance can be refused from the date of application only for
compelling reasons. Though the background is somewhat different, more or
less the same approach has been adopted by the Delhi High Court4. This has
1 Saroj Bai vs. Jai Kumar Jain, II (1995) DMC 589 MP.
2 Saroj Bai vs. Jai Kumar Jain ibid.
3 Savitri Govind v. Govind Singh, 1985 Mah. LJ 977.
4 Makhdum Ali v. Nargis Bano, 1983 Cri LJ 111.
been the consistent approach of various Courts since long. In one such old
case1 revisional jurisdiction was used for the first time to direct maintenance
from the date of application. The reasons which weighed with the Court
were that neither husband nor any member of his family deserved any
sympathy or consideration because they had behaved badly with the wife.2
The applicant was forcibly turned out by the husband-opponent who
never cared or tried to bring back the applicant and on the contrary married
another woman. In such circumstances, it is not difficult to conceive that the
applicant was driven to seek help and obligation of other quite unwillingly
to order in order to survive during the period of litigation. The husband
having not cared for the maintenance of the applicant-wife during the period
of litigation nor having made any attempt to bring her back till the filing of
the application would not be justified in contending that the applicant
should not have been allowed maintenance for the period of litigation.3
Section 24 of the Act, does not specify that the amount of
maintenance which is awarded under the said provision is to be paid from
the date, the petition for divorce is filed. It is for the Court to consider this
circumstances and it may award the maintenance from the date the
application is fixed on from the date the order is passed. It is the discretion
of the Court which is exercised after taking into consideration various
facts.4
On the point of arrears, it was found that there were lapses on the
part of the petitioner herself. She was being maintained by her parents and
brothers for quite some time. When she had felt that her parents and
brothers were unable to maintain her, she moved an application for
maintenance. In these circumstances, it was held that for the delay in
moving the Court, the arrears of maintenance may not be allowed.
Therefore, the petitioner was held entitled to claim maintenance at the rate
of Rs. 200/- per month from the date of order passed by the Court.5
The proceedings under Section 125 Criminal Procedure Code
lingered on to nearly 5 years and wife was not only feeling the mouths of
her children in these hard days but also spent money for prosecuting her
application under Section 125, Criminal Procedure Code and it was only
after a lapse of so many years when the order granting maintenance was
1 Hemibai vs. Kundibai , AIR 1940 Sind 228.

2 Sharda vs. Gunwantroa, II (1988) DMC 10 Bombay.
3 Ganga Bai vs. Shivram, II (1988) DMC 340 MP.
4 Asha Sharma vs. Judge, Meerut &Anr. Family Court, II (1995)
DMC 67 All.
5 Khilan Devi vs. Amar Singh, II (1995) DMC 122 MP.
Enforcement of order—Effective date 431
passed. It was held that, the delay in disposal of the proceedings under
Section 125 Criminal Procedure Code is by itself a sufficient ground to
grant maintenance to the wife from the date of application. The wife
cannot be made to suffer on account of delay in disposal of application
for maintenance. 1 On the question as to from which date the amount of
mantenance should be granted, it was observed:
The provisions of Sub-section (2) of Section 125 Criminal
Procedure Code have not been held to be mandatory or obligatory
and the special reason for granting maintenance allowance from
the date of the application have also not been considered
necessary, if the disposal of the proceedings itself makes out a
prima facie case for delay without any fault on the part of the
lady. The cases in which this Court has held that the reasons
should be recorded expressly have been consistently followed.
However, it was never considered whether the provisions
contained in Sub-section (2) of Section 125 Criminal Procedure
Code were ultra vires on the touch stone of reasonableness as
enshrined under Articles 14 of the Constitution of India. The
orders of maintenance granted by the lower Court have been
challenged in this Court frequently on the ground that the order
of maintenance with effect from the date of the application is
illegal and is liable to be quashed. It appears therefore necessary
to examine the legality or otherwise of the provisions contained
in Sub-section (2) of Section 125 Criminal Procedure Code.
It was further observed as under:
The claim for maintenance is a substantial right of the person
mentioned in Sub-section (1) of Section 125 Criminal Procedure
Code. It arises from the date when the person having sufficient
means and legally liable to maintain, neglects or refuses to
maintain. True, if the Claimant does not himself or herself initiate
proceedings before the Competent Magistrate for grant of
maintenance, no maintenance can be granted for the period during
which such claim has not been made. It is but natural because
even the mother does not provide milk to her child without the
latter crying. The claim under any existing law are enforced
normally only from the date of the receipt of application or the
claim having been preferred but once a claim arising out of a
legal right or obligation has been presented to a Competent
Authority under the law, it becomes payable from the date of the
claim itself. If there is anything special to deny the claim from
that date of demand, special reasons will be required to be
recorded. But here the impugned provision contained in Sub-
section (2) of Section 125 Criminal Procedure Code reverses the
general proposition of law and the nature. This provision appears
to me to be opposed to good conscience, equity and fair play.
1 Satish Chandra Gupta vs. Aneeta, I (1995) DMC 173 All.

After the above analysis it was held as under:

The claimant cannot be made to suffer for any act or omission on
the part of any Court or any authority without any fault on the
part of the claimant. If the Court or the authority does not or fails
to discharge its statutory duty, the claimant cannot suffer for the
period or failure of such statutory duty. In the proceedings for
maintenance under Section 125 Criminal Procedure Code the
claimant in the helpless condition and circumstances prays for
grant of maintenance but if the Magistrate or the Court takes long
time in serving the notice of the proceedings on the opposite
party or the latter neglects the proceedings or the Court prolongs
the proceedings for one or the other reason, the applicant cannot
be made to suffer. He or she has no control over the conduct and
disposal of the proceedings under Section 125 Criminal
Procedure Code. The husband always adopts dilatory tactics to
avoid his liability and also takes other proceedings to thwart the
claim of the wife. The experience of the cases coming up before
the Court shows that the husbands have started denying even the
basic fact of their marriage with the wife and in some cases they
have instituted proceedings for restitution of conjugal rights
without any intention on their part to keep the wife together but
only to dispute her claim for a reasonable cause to live
separately. If all these objections pleas have to be adjudicated
detailed evidence has to be given before the Court or the
Magistrate, unnaturally it would delay the disposal of the
proceedings. The Court or the Magistrate may also omit to record
reasons while granting application for maintenance from the date
of application. The claimant cannot be in a position to dictate the
terms to the Court or to give directions to the Court how to write
a judgment and order or what to write in the order so as to make
it operative from the date of the application. If these
circumstances, a legal claim justified be evidence is granted with
effect from the date of the order, pursuant to Sub-section (2)
Section 125 Criminal Procedure Code by the Court of the
Magistrate, it pricks judicial conscience, equity and fairplay to
deny the payment of maintenance to the lady from the date of her
application. It is for these reasons that this Court and the Madhya
Pradesh High Court have in the cases referred to above held that
the recording of special reasons is not essential for granting
maintenance from the date of the application. 1
Ordinary rule is that maintenance to wife is payable from the date
of order. Exception to this ordinary rule is an order making maintenance
payable from the date of application. When an exception has to be made
in the ordinary rule making the maintenance payable from the date of
1 Basant Lal vs. State of U.P., I (1995) DMC 507 All.

Enforcement of order—Execution of order 433
application by an order, the order must be supported by reason

or reasons. 1
The maintenance granted from the date of the application was not
justified as there is no specific reason to grant the same; the maintenance
however could be allowed from the date of the order. The maintenance
has been allowed from 8 th of October, 1984 which is the date of the
application. No specific reasons have been given by the Court below for
granting maintenance from the date of the application. In the normal
course, maintenance is to be allowed from the date of the order. Proper
order should have been is to allow maintenance from the date of the
order passed by the Court. 2
In one case the lower Court directed payment of interim
maintenance from the date of making of the order but no reason had been
assigned for so doing and the date of commencement of the order
appeared to have been fixed arbitrarily. The narration of facts by the
lower court, however, indicated that the applicant was in service upto a
certain date but thereafter, she did not serve and had no independent
source of income. It was therefore held to be just under the
circumstances of the case to grant to her the interim maintenance under
Section 24 of the Act from the month when she had stopped working.
This was so because it was only from this period that she can be said to
have no independent income sufficient for her support. 3
Execution of order
In one case the amount of Rs. 100/- was fixed in the year, 1986.
Since then, the child had grown and it was important for his welfare that
he should get proper education and, therefore, there was no legal bar
against applying for increase of the maintenance amount under the
provisions of Section 127 Criminal Procedure Code. When the appeal
was pending before High Court and heard, the Court will naturally take
note of the fact that the amount of maintenance, so far as minor child is
concerned, has already been increased from Rs. 100/- to Rs. 300/- per
month. There is no reason why the child should suffer so far as his
1 Dharmedra Kumar Gupta vs. Chandra Prabha Devi, II (1991) DMC

158 All.
2 Shyamlal vs. MST. Angooribai, II (1995) DMC 183 MP.
3 Tripta Chhabra vs. Ajit Kumar Chhabara, II (1989) DMC 178 MP;
Gouri Das vs. Pradyumna Kumar Das, II (1986) DMC 189 Orissa;
Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
welfare is concerned, merely because the appeal takes time to be

decided, in the Court. 1
Future default
Section 125(3) Criminal Procedure Code provides that if any
person ordered to pay maintenance fails without sufficient cause to
comply with the order the 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 part of
each month’s allowance 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. So far as future maintenance allowance is
concerned, it was observed as under:
‘The monthly amount of maintenance becomes due on 22 nd of
every month and, therefore, the maintenance amount with respect
to the period from November 21, 1984 to December 20, 1985 will
become due only on December 22, 1985. In the instant case, the
Judicial Magistrate had passed a recurring or running order
assuming that the petitioner would commit a breach of the order
in future as well. This could not be done by the Judicial
Magistrate because in view of the express language of Section
125(3) for every breach of the order, the Judicial Magistrate has
to issue a warrant for levying the amount due in the manner
provided for levying fines. It may be that with respect to the
future period, the petitioner may himself voluntarily pay the
maintenance amount to avoid the sentence of imprisonment which
is the consequences of non-payment of the whole or any part of
each month’s allowance. The order of the Judicial Magistrate,
Malpura, directing the Chairman of Hindustan Aluminium
Company Renikoot for deducting the amount of Rs. 500/- every
month from the salary of the petitioner and to remit the amount to
his court is against the provision of Section 125(3) Criminal
Procedure Code. It may also be mentioned that the petitioner has
not paid any maintenance allowance to the non-petitioner even
after the date she had filed application before the Judicial
Magistrate on December 12, 1985. The Magistrate can of course
include in the warrant the amount of arrears of maintenance
which had become due for the period from December 12, 1985
to date.’ 2
Hearing of appeal
An appellant was represented by a counsel. The respondent wife
was not in a position to engage a counsel unless litigation expenses are
1 Tara Chand vs. Rinku, II (1992) DMC 435 Raj.

2 Govind Sahai vs. Prem Devi, I (1988) DMC 122 Raj.
Enforcement of order—Imprisonment of defaulting husband 435
paid. Failure to comply with order under Section 24 of the Act is

intentional. If the appellant does not pay litigation expenses and
maintenance to the respondent his appeal cannot be heard. It would be an
injustice to the respondent if the appeal is heard in the absence of a
counsel for her. The order directing the appellant to pay litigation
expenses and maintenance to the respondent wife under Section 24 of the
Act is in the nature of a step for the prosecution of the appeal. As the
appellant has not complied with the said order, the appellant cannot be
heard is support of his appeal. 1
Imprisonment of defaulting husband

The provision of Chapter IX of the Code are enacted with a
specific purpose which is benevolent and for protection of weaker
section of the society. The said provisions have been specifically enacted
for providing wherewithal to hapless, discarded wives and children who
require the shelter and protection of the law. Such persons cannot be left
searching for the bread and sanctuary risking their souls and virtues.
When a discarded wife prefers in application in the Court claiming
alimony from her husband on the ground of neglect and refusal to
maintain herself, the Court has to order such husband to make payment
of necessary allowance for her maintenance if she proves that her
husband having sufficient means neglected and refused to maintain her
who happens to be without sufficient means. If such husband neglects or
does not pay such alimony to such wife, the Court has to either recover
that amount by the procedure laid down by law or to send such a husband
to imprisonment for the purpose of making him to pay such alimony to
such discarded wife. When that wife is begging for alimony, coming to
the Court for getting alimony from husband for her maintenance, it
would be not only cruel but would be unjust also to ask her to make
payment of the expenses for maintaining such husband during his
imprisonment. That is not spirit behind the provisions which have been
embodied in Chapter IX of the Code. Said imprisonment is to be
consistent with “sentence”, “imprisonment” indicated by Criminal
Procedure Code, 1973, Section 29, 30. It should not be as indicated by
Civil Procedure Code. 2
Whether a person, who has defaulted in the payment of
maintenance ordered under Section 125 Criminal Procedure Code can be
sentenced to imprisonment for a period of more than one moths has benn
subject matter of consideration by courts.
1 Ram Narain vs. Darpoti Devi, I (1983) DMC 153 Delhi: 1983
Rajdhani LR 4: AIR 1983 Delhi 346.
2 Anuradha Pal vs. Jeewan Pal, I (1996) DMC 207 MP.
In Karson Ramji Chawda’s case 1, when the order of the

Magistrate was challenged on the ground that in passing the sentence of
two moths, the Magistrate exceed the jurisdiction conferred upon him
under Section 488(3), Criminal Procedure Code, the Full Bench of the
Bombay High Court while repelling the said contention, observed as
follows:—
“Therefore, if we read the provision with regard to the power of
the Magistrate to sentence the applicant independently of the
power to issue the warrant, it is clear that the power to sentence
is for the whole or any part of each month’s allowance remaining
unpaid after the execution of the warrant to imprisonment for a
term which may extent to one moth or until payment if sooner
made. Now these words clearly lay down the power of the
Magistrate. The power of the Magistrate is in respect of whole or
any part of each month’s allowance remaining unpaid to
sentences the applicant for a term not exceeding one month.”
In the above case, two months’ imprisonment for non payment of
four month’s allowance was held to be legal.
The Division Bench of the Calcutta High Court, in Moddari Bin
vs. Sukdeo Bin, 2 while dealing with the question whether under Section
488(3), Criminal Procedure Code, the punishment should be limited only
to a period of one month as the maximum, observed as follows:
“…..…The maximum of one month in our view, this in context
and on proper interpretation of the language of the section is
relatable to a period of the arrear for one month is punishable by
one month’s imprisonment and no more. If the default is more
than one month then the imprisonment can he for as many months
of default subject to a maximum of 12 months. The question here
is whether a default of 9 months which had occurred could be
punishable with six moths’ imprisonment which the Magistrate
here has ordered. On the authorities and on the construction of
Section 488(3) Criminal Procedure Code we have come to the
conclusion that the Magistrate can make an order for six month’
imprisonment for nine months default. In fact the maximum
imprisonment which he on the present facts could have given was
9 months, but he has given less……..”
So, in the above case, six months’ imprisonment for non-payment
of nine months’ allowance was held to be legal.
In Kashmir Singh vs. Kartar Kaur, 3 relying on the Karson Ramji
Chawda’s case and Moddari Bin’s case, the Rajasthan High Court
1 Karson Ramji Chawda vs. State of Bombay, AIR 1958 Bom 99 FB

2 AIR 1967 Cal. 136.
3 1988 (2) Crimes 44.
Enforcement of order—Imprisonment of defaulting husband 437
observed that as 11 moths’ maintenance was due, the Magistrate could

have ordered imprisonment to the extent of 11 months, while upholding
the order of the Magistrate sentencing the husband to only 6 months’
imprisonment.
Therefore the contention that whatever the arrears, the maximum
period of imprisonment that can be ordered is only one month, was held
to be not tenable. 1
Another view is that the language of Sub-section (3) of Section
125 is quite clear and it circumscribes the power of the Magistrate to
impose imprisonment for a term which may extend to one month or until
the payment, if sooner made. This power of the Magistrate cannot be
enlarged and therefore the only remedy would be after expiry of one
month. For breach or non-compliance with the order of the Magistrate
the wife can approach the Magistrate again for similar relief. By no
stretch of imagination can the Magistrate be permitted to impose
sentence for more than one month. 2
A distinction has to be drawn between a mode of enforcing
recovery on the one hand and effecting actual recovery of the amount of
monthly allowance which has fallen in arrears on the other. Sentencing a
person to jail is a ‘mode of enforcement’. It is not a ‘mode of
satisfaction’ of the liability. The liability can be satisfied only by making
actual payment of the arrears. The whole purpose of sending to jail is to
oblige a person liable to pay the monthly allowance who refuses to
comply with the order without sufficient cause, to obey the order and to
make the payment. The purpose of sending him to jail is not to wipe out
the liability which he has refused to discharge. Be it also realised that a
person ordered to pay monthly allowance can be sent to jail only if he
fails to pay monthly allowance ‘without sufficient cause’ to comply with
the order. It would indeed be strange to hold that a person who ‘without
reasonable cause’ refuses to comply with the order of the Court to
maintain his neglected wife or child would be absolved of his liability
merely because he prefers to go to jail. A sentence of jail is no substitute
for the recovery of the amount of monthly allowance which has fallen in
arrears. Monthly allowance is paid in order to enable the wife and child
to live by providing with the essential economic wherewithal. Neither the
neglected wife nor the neglected child can live without funds for
purchasing food and the essential articles to enable them to live. Instead
of providing them with the funds, no useful purpose would be served by
1 Bhakta Bhuyan vs. Savitri Bhuyan, I (1991) DMC 542 Orissa.

2 Shahada Khatoon vs. Amjad Ali, I (2000) DMC 313 SC.
sending the husband to jail. Sentencing to jail is the means for achieving
the end of enforcing the order by recovering the amount of arrears. It is
not a mode of discharging liability. The section does not say so. The
Parliament in its wisdom has not said so. Commonsense does not support
such a construction. From where does the Court draw inspiration for
persuading itself that the liability arising under the order for maintenance
would stand discharged upon an effort being made to recover it? The
order for monthly allowance can be discharged only upon the monthly
allowance being recovered. The liability cannot be taken to have been
discharged by sending the person liable to pay the monthly allowance, to
jail. At the cost of repetition it may be stated that it is only a mode or
method of recovery and not a substitute for recovery. 1
Inherent jurisdiction
The Court has inherent jurisdiction under Section 151 of the Code
of Civil Procedure, to give affect to its order. It has inherent jurisdiction
to prevent the abuse of the process of the Court. In giving effect to its
order, the Court below would have been justified to strike off the
defence, even if there is no such provision in the Hindu Marriage Act.
Instead of exercising the jurisdiction so vested in the Court, the lower
Court has thrown its hands in despair and has offered a gratuitous legal
opinion to the revision petitioner to file an execution petition, which, as
stated by Banerjee, J. 2, is not an easy going highway, and is beset with
all imponderables and practical difficulties. 3
Instalments
In order to avoid the hardship to both the parties and keeping in
view the income of the husband, it was directed to pay arrears of
maintenance allowance in easy instalments to the tune of Rs. 400/- per
month. It was however provided that in case he commits default in
payment of any of these instalments, the respondent shall be entitled to
realise the amount in lump sum. 4
1 Kuldip Kaur vs. Surinder Singh, AIR 1989 SC 232: 1989 CrLJ 794:
1989 SCC (Cr) 171: 1989 CAR 9: 1989 CrLR (SC) 25: 1989 (1)
Crimes 1: 1989 MPLJ 1.
2 in Anita Karmokar’s case reported at AIR 1962 Cal. 88
3 Mangalam vs. P.S. Krishna Pillai, II (1992) DMC 545 Ker.
4 Kanwal Nain vs. Shashi Bala @ Rachna, I (1992) DMC 529.
Enforcement of order—Limitation 439
Limitation
The amount of maintenance shall be deemed having become due
from the date of the order by the trial Magistrate, if no revision is
preferred or stay obtained against the said order. However, if the
aggrieved party prefers a revision petition and obtains a stay order or in
any way prevents the execution of the order, it will not lie in his mouth
to urge subsequently that the order cannot be executed on the ground of
having become barred by time only because the proceedings remained
pending in a higher Court. Similarly the mere pendency of the revision
petition without there being any stay or other intervening circumstance
preventing the claimant from filing the petition, would not condone the
delay because in that event the amount found due would be deemed to be
due from the date of order of the trial Magistrate, because the same
became effective and was not prevented or obstructed to be executed. No
party can sleep over its rights merely on the pretext that some revision
petition is pending even though the Revisional Court has chosen not pass
any order staying the execution of the order granting maintenance. If the
Revisional Court does not stay the operation of the order or its execution
with the intention of achieving the object of granting the maintenance to
the deserted wife or children, the claimants or the beneficiaries cannot be
allowed to sleep over their rights and not to agitate the matter merely
because the higher Court is seized of the matter despite the fact that the
execution of the order had not been stayed. The period of limitation
would commence from the date of the decision of the application or from
the date when the same became final, if its operation had been stayed by
the Revisional Court. 1
When the application under Section 128, Criminal Procedure
Code was made for the recovery of the amount for 17 months, the Trial
Court could not have issued the warrant for recovery of the amount for a
period of five months. Thus, the warrant for claim of maintenance issued
by the Trial Court for a period beyond one year which includes five
months is illegal. 2
The maximum period of limitation for the execution of that
decree is twelve years from the date when the decree becomes
enforceable. It is time and again said by various authoritative
pronouncements of the Apex Court that this Article should receive a fair
and liberal and not a technical construction, with a view to enable the
decree-holder to reap the fruits of the decree and it will not be in
consonance with the principles of just interpretation to strain the
1 Gurdeep Singh vs. Satya Devi, I (1988) DMC 236 J&K.

2 Chandrashekhar vs. Sau. Jayshree, I (1989) DMC 235 Bombay.
language of the Article in favour of the judgment-debtor, who had paid

his just dues. Under the decree, the decree-holder acquires a vested and
that right which cannot be taken away except under clear and
unambiguous enactment. It would not be desirable to hold a decree to be
barred by time unless it is absolutely necessary to do so. 1
In this case, trial judge seems to have confused with the relief
sought in the execution petition. The learned trial Judge seems to be
under the impression that by filing the execution petition, petitioner is
claiming arrears of maintenance, which in fact is the wrong assumption
and in fact what the petitioner/decree-holder was seeking by filing the
execution petition is to enforce the decree made by the Trial Court.
There is essential distinction between a suit for recovery of maintenance
and enforcement of decree for maintenance. In the first case, the Law of
Limitation as envisaged under Article 105 applies and in the second case,
Article 126 of the Limitation Act applies. The process of execution is
nothing but enforcement of decrees and orders of Courts by the process
of the Court, whereby the party entitled to the benefit of a judgment may
obtain that benefit from any person against whom a decree has been
passed. It is well-settled law that the function of the Executing Court is
to carry into effect the decree of the Trial Court. Its powers are for this
purpose, limited to its deciding the questions relating to the execution,
discharge of satisfaction of the decree sought to be executed. It has no
powers to determine the rights of the parties with regard to all or any of
the matters in controversy in the suit. It is bound to execute the decree
and cannot go behind the decree and the only exception to this rule is
that when a decree is passed by a Court which has no jurisdiction to pass
in then by reason of inherent defect in the jurisdiction of the Court
passing the decree, the Executing Court can ignore it, since it is a nullity.
A decree is binding and conclusive until it is set aside. The Court
executing it cannot ordinarily enter into the enquiry that it was passed
without jurisdiction or was not passed according to law. 2
Acquiescence of the opposite party cannot confer jurisdiction on
the Magistrate to enlarge the same. In certain circumstances, an
application can be made for a period beyond one year e.g., where a
pending a application has been closed for statistical purposes and fresh
application is filed for the period covered by the earlier application and
the period subsequent thereto. There is no right conferred to the Court to
1 Subbamma vs. B.T. Krishnappa, I (2001) DMC 41 Karnataka.

2 Subbamma vs. B.T. Krishnappa, ibid.
Enforcement of order—Nature of right 441
enforce arrears of more than one years arrears. 1 On facts also it was
observed as under:
‘In the instant case, Mst. Jakali had moved an application for
grant of maintenance as early as on 1-6-81 which was decided
only on 15-12-83. Merely filing an application by husband for
setting aside that order could not prevent her from filing such
application for enforcement of the order. There was nothing to
prevent the wife from making an application for the enforcement
of the order passed in her favour within one year of the decision.
Therefore, awarding of arrears beyond the period of one year and
without there being stay from 1-6-81 to 1-6-84 is abuse of the
process of the Court and as such the order dated 21-3-87 is liable
to be quashed. 2
Moral duty
The Court has granted the amount of maintenance and it was the
moral duty of the petitioner to make payment of the amount, as directed
by the Court. For some reason, if the non-petitioner could not approach
the Court within one year, it does not take away the moral duty of the
petitioner to make the payment of the maintenance amount. The
maintenance amount is always granted when the relations between wife
and husband become strained and when they live separately, or when the
divorce is effected. The lady who always remains at the mercy of the
husband and who is turned out, has no source of income to maintain her,
and even to approach the court regularly. The husband who is always at
the better position and who can exert influence, wants to harass the lady.
It does not matter whether the non-petitioner requests the Court in time
after the period of limitation. A moral duty is enjoined on the husband,
and without making shelter of technalities of the law and the provision of
Section 125(3) Cr.P.C. he should have paid this amount. 3
Nature of right
The right of a wife for maintenance is an incident of the status
and a Hindu husband is under a legal obligation to maintain his wife.
This obligation is personal in character and arises from the existence of
relationship between the parties. Sub-s. (1) of Section 18 of the Act only
reiterates the general rule a Hindu Law on the subject. This right of a
Hindu wife exists independently of the question as to whether the
husband is in possession of any property or not. The wife’s case cannot
also come under Section 28 of the Act. As long as the husband is living,
1 Ganga Ram vs. Jakali, I (1992) DMC 202 Raj.

2 Ganga Ram vs. Jakali, ibid.
3 Purshotam Dass Vanjani vs. Asha Rani, I (1984) DMC 35 Raj.
the wife is not a dependant as defined in Section 21 of the Act. Section

28 of the Act provides that where a dependant has a right to receive
maintenance out of an estate and such estate or any part thereof is
transferred, the right to receive maintenance may be enforced against the
transferee, if the transferee has notice of the right and the transfer is
for consideration. 1
Notice before warrant

In Sher Mohd. vs. Mst. Roshan, 2 it has been observed that a notice
before the issuance of a warrant under Section 125(3) Criminal
Procedure Code is essential. it does not make any difference whether the
order under Section 125(1) Criminal Procedure Code had been passed
after the hearing both the parties or was passed ex-parte. 3
Place of execution
A number of enabling provisions were passed after the partition
to meet certain special cases of this kind and of course, where there is
specific legislation, effect must be given to it. But where, as here, there
is nothing, then in the absence of a specific bar it was held that an order
which was good and competent when it was made and which was passed
by a tribunal which was domestic at the date of its making and which
could, at that date, have been enforced in an Indian Court does not lose
the efficacy by reason of the partition. There is no reason why an order
which was competent and valid at the time it was made and which could
have been enforced in Delhi should cease to be competent simply by
reason of the partition. A foreign order could not be enforced in this
way. But the order here was a competent order of a domestic tribunal
when it was made and could then have been enforced in the Delhi Court.
In the absence of any specific bar there is no reason why it should lose
its Indian nationality simply because the place in which it was born was
later made foreign territory. 4
Procedure for recovery

Maintenance amount has to be recovered in the manner provided
for recovery of the fine amount. That takes us to Section 421, Criminal
Procedure Code. One of the methods thereunder is issue of a warrant for
levying of the amount by attachment and sale of any movable property
1 Udayanath Samal vs. Siri Dei, AIR 1973 Orissa 196: (1973) 1 Cut
WR 448.
2 1987 WLNOC 158.
3 Bansidas vs. Naraini, I (1989) DMC 214 Raj.
4 Kishori Lal vs. Sm. Shanti Devi, 1953 AIR SC 441: 1953 CrLJ
1923.
Enforcement of order—Procedure for recovery 443
belonging to the husband. It is only where the amount is not recovered in

execution of the said warrant, or the whole of the amount is not
recovered in execution of the said warrant, then, for the whole or any
part of each month’s allowance remaining unpaid after the execution of
the warrant, imprisonment shall have to be ordered which may extend to
one month from each month’s allowance. 1
But in this case, what the learned Magistrate had done by the
impugned order was to straight away issue arrest warrant, and, on finding
by the petitioner husband in the Court, sending him to jail by way of
imprisonment for a period of nine months, because the interim
maintenance had not been paid for nine months. It was held to be clearly
unsustainable in law, and, it needs to be set aside, and the matter
remitted to the learned Magistrate to recover the amount of interim
maintenance including the arrears by first issuing warrant for attachment
and sale of movable property of the petitioner husband, and, if any
balance is still due, then only to resort to sentencing the husband
to imprisonment. 2
The learned Chief Judicial Magistrate in its order took the view
on the authority of Division Bench decision of the High Court, 3 that the
petitioner was liable to pay maintenance even after the Act had come
into force because the order for payment of maintenance had been made
earlier to the enforcement of the Act. Later on, the learned Chief Judicial
Magistrate, further ordered issue of non-bailable warrant of arrest
against the petitioner, for detention in civil prison until he paid of
the maintenance. 4
Section 421 of the Code provides for recovery of fine and the
procedure laid down for the purpose was by issue of warrant for
attachment and sale of any movable property belonging to offender, in
this case the present petitioner (opposite party in the maintenance
proceeding) or issue of warrant to the Collector of the District,
authorising him to realise the amount as arrears of land revenue from the
movable or immovable property, or both, of the defaulter. The proviso to
Section 421 clearly stipulates that ‘no such warrant shall be executed by
the arrest or detention in prison of the offender. On consideration of the
above provisions, there should be no doubt that for recovery of money as
maintenance which has to be in accordance with the procedure for
1 Veerabhadrapa vs. Vedavathi, II (1999) DMC 389 Karnataka.

2 Veerabhadrapa vs. Vedavathi, ibid.
3 Idris Ali vs. Ramisha Khatun, AIR 1989 GAU 24.
4 Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, I (1991) DMC 29
Gau.
recovery of fine no warrant of arrest or detention of the petitioner could

have been ordered. 1
Recovery and modification

The proceedings under Section 127 Criminal Procedure Code are
independent proceedings vis-à-vis the recovery proceeding under Section
125(3) of Criminal Procedure Code. Even assuming that the two can be
taken up together then if is for the trial Judge to decided the manner in
which the recovery proceedings should be initiated. If the Magistrate
decided to give priority to the recovery proceedings rather than the
proceedings for modification then he must follow the tenet of Section
125(3) of Criminal Procedure Code which says that 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 part of each month’s
allowance 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. The words “without sufficient cause” emphasise
that even while proceeding to direct recovery by a coercive process or
for sending a defaulter to prison the trial Judge must afford opportunity
to the defaulter to show cause why the warrant for levying the amount or
for sentencing him to imprisonment should not be issued. It is only if the
defaulter fails to show sufficient cause that he may then take the steps
for recovery by coercive process or by sentencing to imprisonment. 2
Remedies available
It is incorrect proposition that the only remedy available to the
party who has been granted interim maintenance is to seek execution or
the order under Section 125 (3) of the Code. The Magistrate has all the
powers to make his orders effective and this power includes the power to
strike off the defence. If this power is not recognised, this will frustrate
the very purpose of grant of interim maintenance. A husband/father can
always delay the proceedings by playing delaying tactics and keep his
wife and children on the road. Obviously the very purpose of introducing
Section 125 was to save the wife and the children from vagrancy. The
petitioner was thus held not entitled to any relief in these proceedings
but as a matter of concession a direction is issued that if he pays the
entire amount due under the order of interim maintenance within one
1 Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, I (1991) DMC 29

Gau.
2 Ashok Yeshwant Samant vs. Suparna Ashok Samant, II (1991)
DMC 132 Bombay.
Enforcement of order—Stay of order/proceedings 445
month from today the order of striking off the defence shall stand
revoked and he will be allowed to contest the petition. 1
Stay of order/proceedings
The petitioner-wife in course of a proceeding under the Hindu
Marriage Act was awarded certain maintenance by way of interim
alimony under Section 24 of the Hindu Marriage Act. Thereafter she
resorted to an application under Section 125, Criminal Procedure Code
for maintenance and that application was allowed on contest. Thereafter
there was an application under Section 127, Criminal Procedure Code by
the opposite party-husband which application was rejected by the learned
Magistrate. The husband did not come up against either the order passed
under Section 125, Criminal Procedure Code or the order passed under
Section 127, Criminal Procedure Code. Since there was no payment in
terms of the order under Section 125, Criminal Procedure Code, the wife
resorted to an executing proceeding. It was observed as under:
So long the original order under Section 125, Criminal Procedure
Code remained intact and so long this order is not challenged in
any higher Forum, the opposite party-husband is bound to make
payment in accordance with the said order. The opposite party-
husband has not come against any order Section 125 Criminal
Procedure Code or any other order and as such the learned
Session Judge was not right in granting the blanket stay of the
order dated 5.4.1997 when the original order under Section 125,
Criminal Procedure Code remained intact. 2
When the Civil Judge made a direction that the husband shall pay
the arrears of maintenance, it was his highest duty to insist upon
obedience to that direction. If there was disobedience he had inherent
power to stop further proceedings which were commenced by the
husband. 3
Failure to pay maintenance is a non-compliance of statutory
requirement under Section 24 of the Hindu Marriage Act, 1955. It is the
right conferred on a spouse under the statute, provided valid
circumstances are made out. Her right to get maintenance had been
already recognised. This statutory right acquired by her cannot be taken
away, because of non-compliance of any of the order obtained by the
husband regarding other as aspects. It is for him to take suitable
proceeding against her for non-compliance of order of court, if any. She
1 Ashrif Ali vs. Manjurain, I (1992) DMC 472 P&H.

2 Kukum Das vs. Biswaranjan Das, 1999(1) HLR 186 Calcutta.
3 M. Ramchandra Rao vs. M.S. Kowsalya, AIR 1969 Mysore 76: 1968
(2) Mys LJ 127.
is already a mush harassed woman and compelled to maintain the

children born to him. Husband had not evinced any interest for the
welfare of the minor children. It was held that nothing prevented him
from making prompt payment every month for their maintenance, till he
get custody through Court. 1
Section 24 states that interim maintenance could be ordered
during pendency of proceedings. Whenever a proceeding in a court gets
restored, the intervening period is always considered as continuance of
the proceedings. It is the original proceeding which gets restored, and
not a new proceeding which comes into existence. Therefore, the order
of the court below, that till the entire arrears of maintenance upto the
date of payment is paid, there is not other alternative than to stay the
main O.P is correct. 2
The remedy of execution is not an easy remedy. The execution
does not at all provide short cuts to the destination. The difficulties of a
successful litigant begin when he succeeds to obtain an order in his
favour. Driving out a penniless wife to initiate a separate execution
proceedings for the purpose of recovery of arrears of interim alimony
and expenses of the proceedings frustrates the very purpose and spirit of
Section 24 of the Hindu Marriage Act. 3
A Court can, in exercise of its powers under Section 151 of the
Civil Procedure Code, pass an order of staying the petition of divorce if
it is found that the husband deliberately and contumeliously flouts the
order of the Court. There is a power in the Court to make such orders as
may be necessary for the ends of justice and to prevent any abuse of
process of the Court. The Matrimonial Court, therefore, was under duty
to invoke the inherent power under Section 151 of the Civil Procedure
Code and should have compelled the erring husband to deposit whole of
the arrears of interim alimony and the expenses of the proceedings in the
Court within certain point of time. If inspite of passing of such orders,
the party under liability flouts the order deliberately, the Court can stay
the petition or the proceedings of divorce if the erring party is
a petitioner. 4
There is nothing in the Hindu Marriage Act which can prevent the
Courts to exercise the inherent jurisdiction to advance the cause of
justice. The Code of Civil Procedure contains no provision under this
1 I. Raju vs. Devaki, I (1988) DMC 430 Madras.

2 I. Raju vs. Devaki, ibid.
3 Vanmala vs. Maroti Sambhaji Hatkar, II (1999) DMC 521 Bombay.
4 Vanmala vs. Maroti Sambhaji Hatkar, ibid.
pendente lite maintenance and litigation expenses can be recovered

without delay. The observations made in some other cases, i.e., Sunder
Mal v. Budh Ram, 1 were quoted wherein it was observed that Courts exist
for administering justice. In India, every Court is a Court of equity as
well as of law. For the administration of justice it is necessary that it
should have powers to undo a wrong and do the right. Thus, while taking
note of the provisions with regard to the execution of the orders passed
in the proceedings under the Hindu Marriage Act, it was held that when
the Court is exercising the inherent power, it has to take into
consideration all the circumstances of the case and then come to the
conclusion whether the justice requires the proceedings to be adjourned
or to be stayed till the payment is made.
In Anita Karmakar 2, the Calcutta High Court considered the
failure of husband to pay maintenance amount pendente lite and expenses
of the proceedings of wife. The wife moved the Court for the stay of the
proceedings and the Court held that, the husband against whom an order
under Section 24 has been made, but who refuses to pay under the order
and aspires yet to go on with his suit must not be encouraged. It was held
that the English principles, followed in matrimonial causes, of staying
the suit in such circumstances is the best way of dealing with such a
situation and the said principles should be applied in proceedings under
the Hindu Marriage Act, 1955 as a rule of justice, equity and good
conscience. It was contended before the Calcutta High Court on behalf of
the husband that the wife could enforce the order made under Section 24
of the Act only by way of execution of the order and that the husband
opposite party could not be compelled to pay by ordering stay of the
proceedings for restitution of his conjugal rights with the petitioner. The
Calcutta High Court observed that the path of execution is not an easy
going high way and provides no short-cuts to the destination. While
referring to the case of General Manager of Raj Durbhanga, 3 the
observations made by the Privy Council were quoted to the effect that,
“Difficulties of a litigant in India begin when he has obtained a decree”.
The Calcutta High Court, therefore, took the view that to hold that the
levying of execution is the only remedy for enforcement of an order
made under Section 24 may result in making such order wholly nugatory
and ineffective. The Calcutta High Court has also agreed with the view
taken by the Punjab High Court in the case of Malkan Rani (supra) and
while agreeing with view taken by the Punjab High Court, it has been
1 ILR 1955 (4) Patiala 481.

2 AIR 1962 Cal 88
3 General Manager of Raj Durbhanga vs. Ramput Singh, 14 Moo Ind
App 605 (612).
observed that inconvenience may ensure if execution be held to be the

only method of enforcement of an order made under Section 24 of the
Act and that there was nothing in the scheme of Hindu Marriage Act
which is opposed to the staying of a matrimonial action, for non-
compliance with an order man under Section 24 of the Act, in exercise of
the inherent powers of the Court.
In Bhuneshwar Prasad 1, the Madhya Pradesh High Court was also
concerned with the question of stay of the proceedings in a matrimonial
case for on-compliance with the order passed under Section 24 of the
Hindu Marriage Act. The Madhya Pradesh High Court considered that if
payment of maintenance pendente lite and expenses of the proceedings is
to be deferred until after the termination of the proceedings, the very
basis of an order under Section 24 directing the payment would
disappear. Maintenance pendente lite and expenses of the proceeding are
ordered to be paid under Section 24 on the ground that the spouse in
whose favour the order has been made is without the necessary means to
maintain herself or himself during the proceedings and bear the expenses
of defending them. If the payment of this amount is not made before the
termination of the proceedings and if they party in whose favour the
order has been made can afford to wait until after the proceedings are
terminated, then it may well be said that the order under Section 24 was
not necessary for the protection, during the proceedings of the
party concerned.
It is true Section 24 does not expressly provide for the situation
arising because of non-compliance with an order made under it. For the
reasons as aforesaid, the Madhya Pradesh High Court has concluded that
there is nothing to prevent a Court from exercising its inherent power
and staying the proceedings for the purpose of carrying out the object of
the order made under Section 24. It was also held that Section 28 on
which reliance was placed by the petitioner does not stand in the way of
enforcement of an order under Section 24 by staying the proceedings
until the order is carried out. The provision only says that all decrees and
orders made by the Court in any proceedings under the Act shall be
enforced in like manner as the decrees and orders of the Court made in
the exercise of its original civil jurisdiction are enforced and may be
appealed from under any law for the time being in force. The
proceedings are stayed by the Court in the exercise of its inherent powers
for non-compliance with an order under Section 24. The stay itself is
clearly not the execution of the order. The proceedings are stayed for the
purpose of enabling the party in whose favour the order has been made to
1 Bhuneshwar Prasad vs. Dropta Bai, AIR 1963 MP 259

execute it in the manner provided in Section 28 and recover the amount

of maintenance pendente lite and expenses of the proceedings so that he
or she may be in a position to defend the proceedings. 1
In Anita Karmokar vs. Birendra Chandra Karmokar, 2 the wife
had made an application under Section 24, which corresponds to Section
30 of the Act, claiming maintenance pendente lite and litigation expenses
from her husband in a suit for restitution of conjugal right brought by
him. The trial court allowed the application, but the husband did not
comply with the order. The wife then moved another application that
further proceedings in the suit may be stayed, till the order passed under
Section 24 was complied with. The trial Court rejected this prayer on
two grounds. One that an order passed under Section 24 was executable;
and two, that there was no provision in the Act authorizing the Court to
stay further proceedings in the main case, till the order passed under
Section 24 was complied with, a revision was taken by the unsuccessful
wife to the Hindu Court. Relying upon the observations of Mahmod, J. in
Narsingh Das v. Mangal Dubey: 3 “Courts are not to act upon the
principle that every procedure is to be taken as prohibited unless it is
expressly provided for by the court, but on the converse principle that
every procedure is to be understood as permissible till it is shown to be
prohibited by the law. As a matter of general principle prohibitions
cannot be presumed”; Banerjee, J., held that there being no prohibition in
the scheme of the Act for staying of proceedings, the trial Court could
have stayed them in exercise of its inherent powers. This was a fortiori
necessary for advancing the object of Section 24, that an indigent spouse
is not hampered in his or her defence due to paucity of funds. 4
When the Judge made the order under Section 24, the husband
was bound to obey it. But if he does not obey in terms of the order
passed by the Judge, the court can enforce obedience to its order by
staying the proceedings if the party in default is the petitioner. If the
order is in favour of the petitioner, and the respondent is an default the
court will strike off the defence. This is how courts enforce their orders.
The power of the court to stay the proceedings or to strike off the
1 Neeta Shreyas Joshi vs. Shreyas Siddharath Joshi, I (2000) DMC

323 Gujarat.
2 AIR 1962 Cal.88.
3 (1882) ILR 5 All 163 (FB).
4 Amrit Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
defence of a defendant in order to compel obedience to its order or to

prevent the abuse of the process of the court has long been recognized. 1
With the stay of the proceedings, the operation of the order under
Section 24 is suspended. This means that the husband will be liable to
pay maintenance allowance for the period up to stay of proceedings but
not beyond that. In case he revives the proceedings he will of course be
liable to pay all arrears of maintenance which fall due during this period
of stay and revival. The proceedings remain in a state of animated
suspension. Maintenance pendente lite is pending adjudication, it is true.
But if the spouse ordered to pay maintenance is in default the court stays
the proceedings. The defaulting spouse is not allowed to use the judicial
process because of non-compliance. The proceedings by staying them are
brought to an end capable of being revived only on condition that the
defaulting spouse submits to the unquestioned authority of the court
which he once refused to recognize. This is the sanction judges have in
their hands to see that no one flouts their orders with impunity. 2
Where the husband by his own act had made it clear to the court
that he was not going to comply with the order awarding maintenance
pendente lite against him; it will be incongruous to hold that the husband
will be liable to pay maintenance allowance for the period subsequent to
the stay even though he is not allowed to go on with the proceedings. 3
Striking off defence

During the pendency of the case in the Trial Court the husband
did not honour the order of Court to pay maintenance and litigation
expenses to the wife and in High Court also he did not appear in spite of
service. Under the situation, It was held that the Trial Court was right in
striking off the defence and that order of the Trial Court was
maintained. 4
1 Codd vs. Codd, AIR 1924 Bombay 132; Maish vs. Masih, AIR 1941
All 93; Krishan Kumar, 1961 Punjab 42; Anita vs. Birendra
Chandra AIR 1969 Calcutta 88; Bhuneshwar Prasad vs. Dropta
Bai AIR 1963 MP 259; B.M.M. Naidu vs. Shantamma AIR 1971
Mysore 25; Anuradha vs. Santosh Nath AIR 1976 Delhi 246; A.
Susselamma vs. A. Raghunadha, 1977 MLR 196 (DB) and Prithpal
Singh vs. Anup Kaur,1978 HLR 59
2 Jai Rani vs. Om Prakash Saini, I (1984) DMC 154 Delhi: Bishoke
Kumar Dutta Choudhury vs. Amita Durra Choudhury, I (1983)
DMC 202 Calcutta.
3 Jai Rani vs. Om Prakash Saini, ibid.
4 Amar Jit vs. Sunder Lal, I (1990) DMC 68 P&H.
Enforcement of order—Waiver 451
The Court can strike out the pleadings of defaulting party to

ensure enforcement of order granting maintenance. 1 Defence can also be
struck off, if there is failure to pay maintenance. 2
In case of non payment of maintenance during the pendency of
divorce proceedings, defence of spouse struck off due to non compliance
and it was held that the petitioning spouse is entitled to decree of divorce
in terms of petition. 3
Subsequent events
In Bhupinder Singh v. Daljit Kaur, 4 it has been observed as
follows:
“If an order for maintenance has been made against the deserter it
will operate until vacated or altered in terms of the provisions of
the Code itself. If the husband has a case under Section 125(4),
(5) or Section 127 of the Code, it is open to him to initiate
appropriate proceedings. But until the original order for
maintenance is modified or cancelled by a higher court or is
varied or vacated in term of Section 125(4) or (5) or Section 127,
its validity survives. It is enforceable and no plea that there has
been cohabitation in the interregnum or that or that there has been
a compromise between the parties can hold good as a valid
defence.”
This view has been referred with approval by Rajasthan High Court. 5
Waiver
Under a Clause of the compromise decree, wife had specifically
reserved her right to execute the decree notwithstanding the fact that she
decided to live with her husband. When she had specifically reserved a
right in her favour, there is no waiver on the part of the wife nor there is
any abandonment of the decree on her side. 6
1 Ghasiram Das vs. Arundhati Das, AIR 1994 Ori 15: (1994) 1
DMC 578: 1994 (1) Hindu LR 545: 1994 Marri LJ 203: 1993 (2)
Ori LR 508.
2 Kanti Devi vs. Balbir Singh, I (1990) DMC 35 P&H.
3 Paramjit Kaur vs. Kashmir Singh, 1994 (1) DMC 504 P&H.
4 (1979) Cr.LJ. 198.
5 Kaur Singh vs. State of Rajesthan, II (1989) DMC 68 Raj.
6 Lakshmi Veera Venkatarantnam vs. Kudupudi Sri Krishna Vara
Prasad, II (1999) DMC 268 AP.
Chapter 11
Muslim law
SYNOPSIS
Application of Act of 1986 .............452 Object behind four marriages ....... 472
Application of Act of 1986 on pending Right to property ........................... 473
application .....................................454 Object of granting maintenance .... 474
Application of Criminal Procedure Obligation of Muslim father .......... 475
Code, 1973 .....................................455 Payment of mehr ............................ 476
Deduction from maintenance .........456 Period of maintenance................... 477
Divorce...........................................456 Principles of law............................ 478
Effect of Act of 1986 on existing order Procedure for application of Act of
.......................................................457 1986 ............................................... 479
Effect of Act of 1986.......................460 Procedure of talaq ......................... 479
Effect of delay ................................460 Proof of divorce ............................. 482
Effect of dissolution of marriage....462 Reconsideration of order ............... 485
Effect of divorce .............................463 Refusal co-habit ............................. 486
Effective date of Talaq ...................463 Retrospective application of Act of
Ex parte order ................................463 1986 ............................................... 487
Exercise of option ..........................465 Return of gifts ................................ 488
Family Court ..................................465 Right of child ................................. 489
Invalid divorce ...............................466 Right of divorced wife.................... 495
Liability of husband .......................467 Scheme of Act of 1986 ................... 495
Liability of State Wakf Board .........468 Second marriage by husband ........ 497
Mahr or dower ...............................469 Talaq without any cause ................ 500
Major children ...............................469 Territorial jurisdiction .................. 500
Meaning of Iddat period ................469 Triple pronouncement of talaq ...... 501
Natural Justice ...............................470 Validity of Act of 1986 ................... 507
Object and scope of Act of 1986 ....471
Application of Act of 1986

The provision of Section 3 of the Act is quite clear as it is
restricted therein that a divorced wife is entitled to maintenance only for
a period of Iddat besides other amount. Similarly Section 5 of the Act
further clarifies whether divorced woman is unable to maintain herself or
she has no source to maintain her, she can be directed to be paid
maintenance by the State Wakf Board. Thus, it is abundantly clear that
Muslim law—Application of Act of 1986 453
Act would come into play if there is divorce an das already indicted
above, the parties are yet to lead evidence to prove the fact whether the
divorce had taken place or not. In a Full Bench authority 1, it has been
held that claim of maintenance by a divorced Muslim wife under the
provision of Section 3 of the Act cannot be restricted to the period of
‘Iddat’. If it is to be restricted to the period of Iddat, husband has to
show that he has made and paid a reasonable and fair provision and
maintenance to the wife which is an adequate provision for her life or till
she re-marries. 2
In one case it appeared that in the show cause filed by the
opposite party it was stated that when the petitioner did not like to live
with him, he divorced and has returned all the articles, utensils and
expenses of iddat period. Whatever may be the factual position, such
direction cannot be issued in the instant proceeding under Section 125 of
the Code of Criminal Procedure. If, in fact, the petitioner had not been
paid her agreed amount of dower (Mehr) and other articles which were
given to her at the time of marriage and thereafter then she will be at
liberty to initiate action against the opposite party for the recovery of
dower amount and other properties under the provisions Muslim Women
(Protection of Rights on Divorce) Act, 1986. 3
In a division bench judgment 4 it was held that the provisions of
the Act, 1986 have no retrospective force and it covered the cases filed
after the Act, 1986 comes into force and to those cases pending under
Section 125 or 127 Criminal Procedure Code when the Act was brought
into force. 5
In essence the 1986 Act is meant to protect the rights of Muslim
women who have been divorced. This special enactment has embodied in
its provisions the principles of Mohammedan Law. Section 5 of the 1986
Act provides for an option to be exercised by the husband and the wife
jointly to opt for the provisions of Section 125 to 128 of the Criminal
Procedure Code in a proceeding in an application under Sub-section (2)
1 Kaka vs. Hassan Bano, 1998(1) RCR 484

2 Sarbari vs. Suleman, II (2000) DMC 216 P&H: See also Abdul Rauf
Khan vs. Haleman Bibi, 67 (1989) CLT 285: 1 (1990) DMC 315:
Abdul Raheman vs. Nurjahan @ Nuri Bibi, I (2000) DMC 720
Orissa; See also Danial Latifi vs. Union of India, Writ Petition (C)
868/1986 unreported D/-28-09-2001 by Supreme Court of India.
3 Bibi Shahnaz @ Munni vs. State of Bihar, II (1999) DMC 589
Patna.
4 Idirs Ali v. Ramesha Khatun, 1988 GLR (II) Page 1
5 MD. Afsar Ali Khan vs. Mustt. Subia @ Sahida Khatun, II (1991)
DMC 559 Gau.
of Section 3 of the 1986 Act. In other words, it the application is made

by a divorced woman to claim the benefits of Section 3 of the 1986 Act,
then only under Sub-section (2) of Section 3 of that Act, the option has
to be exercised. The provisions of Section 5 of the 1986 Act therefore,
do not apply in a proceeding initiated by a Muslim wife claiming
maintenance since she does not claim maintenance as a divorced wife. It
is for the reasons mentioned in Section 3 that a reasonable and fair
provision for maintenance has to be worked out within be sub-clauses of
Sub-section (1) of Section 3. 1
In a recent decision it has been held that a Muslim husband is
liable to make reasonably and fair provision for the future of the
divorced wife which obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat period must be
made by the husband within the iddat period in terms of Section 3(1)(a)
of the Act. 2
Application of Act of 1986 on pending application

In respect of a divorced woman if any application under Section
125 or under Section 127, Criminal Procedure Code is pending on the
date when the Act of 1986 came into force, the application has to be
disposed of by the Magistrate in accordance with the provisions of Act.
It is not that such an application should be dismissed straightway but has
to be considered and disposed of in conformity with the provision on the
Act not under Section 125 or 127, Criminal Procedure Code. 3
Under Section 7 of the Act, the pending proceeding shall be
subject to the provisions of Section 5 of the Act. Therefore the petition
filed under Section 125 of the Code has to be treated as a petition filed
under Section 3 of the Act. Under Section 5 of the Act, when a petition
has been filed by the divorced woman for maintenance, the former
husband shall declare his preference in writing either to be governed by
the provisions of Section 125 of the Code and only on filing of such a
declaration, the Magistrate shall dispose of the application accordingly.
The Section is very clear that only if the former husband agrees in
writing for proceeding with the enquiry under Section 125 of the Code,
the petition shall be disposed of accordingly. Otherwise, the enquiry
cannot be under Section 125 of the Code. 4
1 Zahid Ali vs. Fahmida, II (1988) DMC 387 Bombay.

2 Danial Latifi vs. Union of India, Writ Petition (C) 868/1986
unreported D/-28-09-2001 by Supreme Court of India.
3 Shainbhai vs. Fakruddin, II (1999) DMC 576 MP.
4 Nazimunissa Begum vs. Abdul Majeeth, I (1996) DMC 274 Madras.
Muslim law—Application of Criminal Procedure Code, 1973 455
It was not the case of the petitioner that the respondent had given
his consent in writing or participated in the enquiry. It appeared that
when the petition was reserved for orders, the Act came into force and
the learned Magistrate, without resorting to Section 5 of the Act to
ascertain the willingness of the parties, had pronounced the orders. As
the order was passed under Section 125 of the Code without obtaining
the necessary consent of the husband in writing with regard to his
preference to be governed by the provisions of Section 125 of the Code,
the order of the Magistrate was held to be not binding. 1
Application of Criminal Procedure Code, 1973

Usually, a Muslim woman who comes to the Court to claim
maintenance will be having no means of livelihood and an unscrupulous
husband taking advantage of the helplessness of the wife may take a
contention that he has divorced his wife and, therefore, the case is to be
governed by the provisions of the Act. But, that will not be an end of the
matter, because Section 5 of the Act gives option to the divorced wife to
give a declaration that she would prefer to be governed by the provisions
of Section 125 to 128 Cr.P.C. and if she gives such a declaration under
Section 5 of the Act, the provisions of the Act will not be applicable to
the case and the case of such a divorced wife will have to be disposed of
by the Court in accordance with the provisions of Section 125 to 128
Criminal Procedure Code, 1973. 2
Since the woman who approached the Court under Section 125
Criminal Procedure Code, 1973 may not be aware of Section 5 of the Act
which gives them an option to be governed by the provisions of Section
125 to 128 Cr.P.C., it is the duty of the Magistrate before whom such
case has come to make the parties aware that they have got an option to
be governed by the provisions of Section 125 to 128 Cr.P.C. If the
Magistrate without making the parties aware more so the Muslim
divorced woman that she has got the option to be governed by the
provisions of Section 125 to 128 Cr.P.C. and disposes of the case
holding that only the provisions of the Act will apply and not the
provisions of Section 125 to 128 Cr.P.C. it will be a serious infirmity
which will vitiate his order. 3
Section 5 of the Act lays down that either the divorced wife or
her former husband declare, by affidavit or any other declaration in
writing in such form as may be prescribed, either jointly or separately,
1 Nazimunissa Begum vs. Abdul Majeeth, ibid.

2 Sayed Karim vs. Zarina Bi, I (1992) DMC 536 Kar.
3 Sayed Karim vs. Zarina Bi, ibid.
that they would prefer to be governed by the provisions of Section 125 to

128 of the Court of Criminal Procedure, 1973. The words jointly or
separately go with the word filing i.e., the declaration can be filed either
jointly or separately by the divorced wife or her former husband. From
Section 5 of the Act, it is clear that the declaration can be filed either
separately or jointly. It leads to an inference that either both the divorced
wife and her former husband or either of them can give the declaration in
writing that they would prefer to be governed by the provision of Section
125 to 128 Cr.P.C.
Deduction from maintenance

Even though the calculation made as to maintenance having
regard to period of ‘Iddat’ from the date of divorce made by the first
appellate Court be correct, that would not justify the deduction in a suit
for recovery of Mahr (Dower) the excess differences in maintenance
ordered by the Criminal Procedure Code in exercise of powers under
Section 125 Criminal Procedure Code the proper remedy would be not
adjustment in the present suit under Section 125 Criminal Procedure
Code but taking up the matter in revision proceedings before the
Superior Court or by filing of a suit, if permissible under the law. 1
Divorce
Under the Quran the marriage status is to be maintained as far as
possible, and there should be conciliation before divorce, and, therefore,
the Quran discourages divorce, and it permits only after pre-divorce
conference. The divorce must be preceded among Muslims by an attempt
of reconciliation between the husband and wife by two mediators— one
chosen by the wife from her family and the other by the husband from
his side. A Mohammedan husband cannot divorce his wife at his whim or
caprice i.e., divorce must be for a reasonable cause and it must be
preceded by a pre-divorce conference to arrive at a settlement. Even if
there is any reasonable cause for the divorce, yet there must be evidence
to show that there was an attempt for a settlement prior to the divorce
and when there was no such attempt prior to divorce to arrive at a
settlement by mediators, then there cannot be a valid divorce under
Mohammedan Law. 2
In this case the reasons given by the husband in his “Talaqnama”
were not found to be justifiable reasons for divorce. Even assuming that
the husband in his “Talaqnama” dated has given justifiable reasons,
there is no whisper in his “Talaqnama” that the alleged divorce had been
1 Shakila Bano vs. Sheikh Naseem, II (1991) DMC 529 MP.

Muslim law—Effect of Act of 1986 on existing order 457
preceded by a pre-divorce conference to arrive at a settlement by two

mediators one chosen by the wife from her family and the other by the
husband from his side. There was no evidence worth its name in this case
to show that such an attempt for reconciliation and settlement was made
by the husband, and there was a pre-divorce conference to arrive at a
settlement. That being so even taking for granted that the revision
petitioner divorced his wife for reasonable cause, yet the divorce given
by the revision petitioner would not be held to be valid according to
Muslim Law. Taking into consideration of the above facts and
circumstances of the case it was held that the “Talaq” pronounced by the
husband divorcing his wife viz., the respondent herein is not valid under
Mohammedan Law. 1
Talak amongst Mohammedans may be oral or in writing. This
provision of the Mohammedan Law read as under:
“Sec.310: Talak may be oral or in writing:
A Talak may be effected (1) orally (by spoken words) or (2) by a
written document called a talaknama.
In view of this provision, no evidence is required to prove Talak
as the divorce by husband is complete just by utterance of words
‘TALAK, TALAK, TALAK’ thrice and the presence of third person is
not necessary. In this view of the matter, there is no option to the wife to
challenge Talak. This being so, the application made and filed is not
maintainable. 2
When the issue regarding divorce had not been raised by the
petitioner and in rejoinder only belatedly some attempt were made by the
opposite party to show that the applicant had been divorced long back
(13 or 14 year back) it was held that this fact cannot be considered to be
true and acceptable in the context of the pleading of the parties. 3
Effect of Act of 1986 on existing order

The question would be whether a divorced Muslim lady can rest
on an order passed under the provisions of Section 125 Criminal
Procedure Code even after the Act is enacted. The answer would be that
after said enactment all the orders passed prior to enforcement of the
said Act becomes inoperative. Accordingly section 128 Criminal
Procedure Code has lost its force on the day divorce was affected.

2 Mohd. Umar Khan vs. Gulshan Begum, II (1991) DMC 15 MP.
3 Bibi vs. Mobarak Ansari, II (1994) DMC 53 Patna.
Therefore the wife is entitled to get maintenance for the Iddat period
along with other dues such as Mahr and dehej etc. 1
The Act of 1986 has completely obliterated the right of
maintenance to divorced Muslim woman. The repeal without saving such
right means that such woman had never acquired such right and in the
view of the matter, the said right now cannot be enforced under Section
125 Cr.P.C. Even if an order granting maintenance had been passed in
favour of a Muslim divorced woman prior to the coming into force of the
Act of 1986 and has become final or is pending in the revision before
any Court or is being challenged by the husband, even in those cases, the
Muslim divorced woman is not entitled to get the Maintenance as
allowing the maintenance in those cases will be in complete
contravention of the intention of the legislature and will amount to
frustrate the very object of Act for which it has been enacted. No
exception has been made in Section 7 of the Act of 1986, which means
that neither the order passed under Section 125 Cr.P.C. nor the liability
already incurred earlier to the coming into force of the Act, 1986 has
been saved. The inevitable conclusion of passing of the Act of 1986 is
that not only right under Section 125(1) but also the remedy under
Section 125(3) Cr.P.C. are lost. Section 7 of the Act of 1986 envisaged a
complete replacement of right and remedy under Section 125 Cr.P.C. 2
Another view is that the 1986 Act does not contain a provision
enabling reopening of order passed under the provisions of the Code
which have become final. This is one more indication to show that mere
change of law cannot lead to alteration or cancellation of orders passed
under the Code which have become final. 3
The non obstante clauses is in general terms. Section 125 and 128
of the Code as such do not stand superseded. There is no provision in the
Muslim Women Act to the effect, “notwithstanding anything contained
in Section 125 to 128 of the Code maintenance of Muslim Women shall
be governed by the provisions of the Muslim Women Act or to the effect
that Section 125 to 128 of the Code shall stand repealed in so far as
maintenance of Muslim Women is concerned. It follows that the
provisions of Section 125 to 128 have been superseded only to the extent
that there is a provision in the Muslim Women Act on matters covered
under Chapter IX of the Code. It further follows that if no contrary
provision has been made either expressly or by necessary implication in
1 Sadique Ali vs. Apar Sessions Naiyai Dheesh, Basti, II (1995) DMC
222 All.
2 Abdul Hamid. vs. Mst. Asia, I (1992) DMC 522 Raj.
3 P.A. Shamsudeen vs. Sabhiya, I (1989) DMC 97 Kerala.
Muslim law—Effect of Act of 1986 on existing order 459
the Women Muslim Act, the provisions of the Code in Chapter IX shall
hold the field. Sub-section (2) of Section 3 as well as Section 4 of the
Muslim Women Act contain provisions regarding enforcement of order
of maintenance granted under the said Act as distinguished from
enforcement of an order passed under the Code where order had acquired
finality before the commencing into force of the said Act. 1
A careful consideration of the Muslim Women Act shows that
there is no provision whatsoever with regard to enforcement of an order
of maintenance which has already become final under the Code before
coming into force of the Muslim Women Act. This only implies that the
provisions with regard to enforcement of such orders contained in the
Code hold good even after coming into force of the Muslim Women Act. 2
In one case when the wife and the daughter applied for
maintenance, the 1986 Act was not in force. Similarly, the wife was not a
divorced woman. The application filed by the wife under Sub-section (3)
of Section 125 Criminal Procedure Code was for execution of the order
of maintenance. The order of granting maintenance to wife the
Magistrate was upheld by the Session Court, High Court and the
Supreme Court. Thus, the claim of wife stood finally decided and as such
she accrued a substantial right. In has become a vested right in the wife.
The amount claimed in the execution application in question was for the
period prior to the date of divorce. When such a valuable vested right to
claim certain amount was accrued to the non-applicant in her capacity as
a wife, the same cannot be taken away by the provisions of 1986 Act.
The nature of the vested right accrued to the non-applicant is as regards a
money claim. The right of a destitute wife or a minor claiming
maintenance in Chapter IX of the Criminal Procedure Code is essentially
a civil right. The remedies provides in the said chapter are in the nature
of civil rights. The proceedings under Section 125 are essentially civil in
nature. Thus when a vested right is accrued to a wife to claim her past
maintenance, the provisions of the 1986 Act therefore cannot affect her
right to institute the recovery proceedings. Even if a Muslim wife is
divorced during the pendency of her application for execution within the
meaning of Sub-section (3) of Section 125 Criminal Procedure Code her
previous claim of maintenance as a vested right will not be taken away
by the 1986 Act. The right which accrued to her as a vested right cannot
be altered or abrogated by the 1986 Act. 3
1 Hazran vs. Abdul Rehman, I (1989) DMC 509 P&H.

2 Hazran vs. Abdul Rehman, ibid.
3 Zahid Ali vs. Fahmida, II (1988) DMC 387 Bombay.

Provision of Section 125 of the Code would be applicable to the
case of a divorced Muslim woman only if both parties exercise their
options at the first hearing the application under Section 3(2) of the Act,
and not in any other case. 1
Section 125 to 128 of the Code are not applicable after coming
into force of the Act of 1986, save in so far as the parties exercise their
option under Section 5 of the Act, to be governed by the provisions of
Section 125 to 128 of the Code. 2
The divorced Muslim woman is not entitled for any maintenance
beyond Iddat period. She has to claim maintenance from her close
relatives, who are likely to succeed to her property, if not from the Wakf
Board. 3 But in a recent decision it has been held by a Constitution Bench
of Supreme Court that a Muslim husband is liable to make reasonably
and fair provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and fair provision
extending beyond the iddat period must be made by the husband within
the iddat period in terms of Section 3(1)(a) of the Act. 4
A divorced Muslim woman who has not remarried and who is not
able to maintain herself after iddat period can proceed as provided under
Section 4 of the Act against her relatives who are liable to maintain her
in proportion to the properties which they inherit on her death according
to Muslim law from such divorced woman including her children and
parents. If any of the relatives being unable to pay maintenance, the
Magistrate may direct the State Wakf Board established under the Act to
pay such maintenance. 5
Effect of delay
Sub-section (3) of Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 provides that where an application has
been made under Sub-section (2) by the divorced woman, the Magistrate
may make an order within one month of the date of filing of the
application, directing her former husband to pay such reasonable and fair
provision for maintenance to the divorced woman as he may determine as
1 Rashida Khanum vs. S.K. Salim, I (1996) DMC 328 Orissa.

2 Usman Khan Bahamani vs. Fathimunnisa Begum, AIR 1990
Andhra Pradesh 225 (FB): 1990 Cri LJ 1364.
3 Shaik Dada Sahed vs. Shaik Mastan Bee, II (1995) DMC 473 AP.
5 Danial Latifi vs. Union of India ibid.
Muslim law—Effect of delay 461
fit and proper having regard to the circumstances, he may also pass an
order for the payment of such Mehr or dower or the delivery of such
properties referred to Clauses (d) of Sub-section (1) to the divorced
woman. There is one provision to the section which prescribes that if the
Magistrate finds it impracticable to dispose of the said application within
the said period, he may, for the reasons to be recorded by him, dispose
the application after the said period. This section provides for speedy
remedy when any prayer under Section 3 of the Act is filed by a divorced
woman before a competent Court. 1
A contention was raised that such a speedy remedy could not be
made available to the divorced lady and the petition should be dismissed
as Magistrate did not record reasons for such delay in disposing of the
said application. It makes out a proposition that the legislature intended
that if no speedy remedy is made available to the destitute lady, her
application should not be considered. That can never be proposition of
enacting the special Act for the purpose of giving relief to a Muslim
Divorced lady. If the Magistrate is unable to dispose of the application
within one month as provided in Sub-section (3) of Section 3 of the Act
for the matter if he does not record the reason, a divorced lady is out of
ground for no fault of her own. For granting relief to a lady she is to file
an application with necessary details and allegations if any, and it is the
duty of Court to take speedy recourse to make available to the petitioner
the relief granted by the Legislature under the special legislation and if
he cannot do it within the period which was provided in the Act the lady
should not suffer. 2
The provision referring that the said section is directory and not
mandatory. The word “may” has been used in all the places even when in
the proviso where it has been stated that the Magistrate may record the
reason if it is not practicable from his to dispose the application within
one moth. By not following the direction, as mentioned in Sub-section
(2) of Section 3 of the Act the Magistrate has committed an illegality for
which the proceeding would be not be vitiated. 3
Section 3(3) of the Act mandates that when an application is
made under Sub-section (2) by a divorced woman, the Magistrate may, if
he is satisfied that the divorced woman is entitled to the claim made by
her, make an order within one month of the date of filing of the
application, directing her former husband to pay the amounts found by
1 Muslim @ Bhoora vs. State of U.P., I (1996) DMC 298 All.

2 Muslim @ Bhoora vs. State of U.P., ibid.
3 Muslim @ Bhoora vs. State of U.P., ibid.
him. The proviso to Section 3(3) stipulates that if the Magistrate finds it
impracticable to dispose of the application, he may, for reasons to be
recorded by him, dispose of the application after the said period. No
reason for the delay in disposing of the petition filed by the respondent is
stated in the order passed by the learned Magistrate. 1
From the context the phrase ‘Magistrate may make an order
within one month of the date of filling of an application’ used in Section
3(3), it is clear that the word ‘may’ is used to mean ‘shall’ especially
considering the fact that the proceedings under Section 3 of the Muslim
Women (Protection of Rights on Divorce) Act is a summary proceeding
intended to achieve the object of the enactment of the Act to give
immediate relief to divorce Muslim Women to whom the reliefs are not
provided by her former husband within the period of Iddat. But merely
because of the failure of the Magistrate to record the reasons for the
delay in disposal of the application, the order passed by the Magistrate
will not be rendered in valid or unsustainable. The failure, if any, on the
part of the Magistrate to give reasons for the delay in disposal of the
application within the time of one month as stipulated in Section 3(3) of
the Act should not cause any harm or prejudice to the beneficiary of the
Act in whose favour the order is passed by the Magistrate,
though belatedly. 2
Effect of dissolution of marriage

Under Muslim Marriages Act, 1939 Muslim wife is also entitled
to maintenance. A Muslim wife whose marriage was dissolved by a
decree of dissolution passed at her instance was entitled to maintenance
under section 125 of the Code of Criminal Procedure. 3 Now she is
entitled to maintenance under Act of 1986 and it has been held that
liability of Muslim husband to his divorced wife arising under Section
3(1)(a) of the Act to pay maintenance is not confined to iddat period. 4
1 Nizar vs. Hyrynneessa, I (2000) DMC 29 Kerala.

2 Nizar vs. Hyrynneessa, ibid.
3 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945: 1985
CrLJ 875: 1985 CrLR (SC) 327: 1985 SCC (Cr) 245: 1985 CAR 161:
1985 Jab LJ 489; Mst. Zohara Khatoon v. Mohd. Ibrahim, 1986
CrLJ 556: AIR 1986 SC 587: 1986 CrLR (SC) 317: 1986 CAR 35:
1986 SCC (Cr) 72: 1986(2) Rec Cr R 40: 1986(2) Crimes 143.
However the position of law is not the same after enactment of
Muslim Woman (Protection of Rights on Divorce) Act, 1986.
Muslim law—Ex parte order 463
Effect of divorce
There is some amount of dispute whether there was divorce.
Mulla in Principles of Mohammedan Law 1, has stated as follows:—
“If a man says to his wife that she had been divorced yesterday or
earlier, it leads to a divorce between them, even if there be no
proof of a divorce on the previous day or earlier”.
While considering an aspect of the Mohammedan Law, one
should not be influenced by one’s sense of rigid approach as regards
marriage and divorce applicable to Hindus. The quoted portion from
Mulla clearly shows that under the Mohammedan Law, husband is in an
advantageous position and has been conferred a special right not only to
divorce the wife orally in the manner provided under the Mohammedan
Law but also by issuing a notice or filing a written statement in defence
to maintenance claim. A similar view expressed by the Andhra Pradesh
High in Mohammed Ali vs. Faredunnisa Begum 2 was held to be laying
down the correct position in law in Sk. Mohiuddin vs. Hasina 3 and in
Sayed Nawai @ Alias Nati vs. Rasida Begum. 4
Effective date of Talaq

The respondent-husband has filed a counter in the month of May,
1994 starting that he has given Talaq to the petitioner and, therefore, he
is not liable to pay maintenance beyond Iddat period. It was held that
even assuming that the Talaq pleaded earlier was not established, the
Talaq comes into effect at least from the date of filling of the counter.
That being so, the petitioner was held to be entitled for maintenance of
the rate of Rs. 500/- per month under Section 125, Criminal Procedure
Code from June, 1993 to May, 1994 plus Iddat period. 5
Ex parte order
It will be wrong to say that since there is no express provision in
the Code, the Magistrate does not have power to dismiss the proceeding
for default of the petitioner. Supposing that the petitioner being no more
interested does not appear in the case, then should the Magistrate
helplessly adjourn the case or should he issue any process for compelling
the petitioner’s appearance or should be proceed with hearing and record
the evidence of the opposite party and finally dismiss the case on the
basis of the evidence so collected ? If these questions are answered in
1 8th Edition, page 327

2 AIR 1970 AP 298.
3 (1988) (II) OLR 163.
4 Vol. 33 (1991) OJD 212 (Criminal).
5 Yousuf Jani vs. MD. Yousufuddin, II (2000) DMC 115 AP.
affirmative, it will be an absurd proposition of law. When the petitioner

having lost interest in the case if does not turn up on the date of hearing,
it will be futile exercise to proceed with the hearing by asking the
opposite party to lead evidence in support of his defence and then pass
the order dismissing the case. 1
The matter may be judged from another angle. Assuming that the
Trial Court has no power to dismiss the case on petitioner’s default, as
observed by the Hon’ble Judge because of absence of an express
provision in the Code then in that case the order of dismissal being
without jurisdiction is non-est in the eye of law and, therefore, the
Magistrate would be competent to recall the said order and to restore the
case to its original position. 2
Rule 4 under the Act provides that all evidence shall be recorded
in the presence of the husband. Then there is a proviso which says that if
the Magistrate is satisfied that the husband is wilfully avoiding service
or wilfully neglecting to attend the Court, the Magistrate may proceed to
hear and determine the matter ex parte. Here the use of word ‘wilfully’ is
important. The magistrate gets jurisdiction to proceed ex parte only when
the husband avoids service wilfully or neglects to come to Court
wilfully. When the husband was not doing it wilfully as he was unable to
come because the defence authorities were not relieving him; it is
doubtful that Magistrate had any jurisdiction to proceed ex parte.
Therefore, the action of the Magistrate in proceeding ex parte was held
to be basically wrong. 3 It was observed as under:
‘There is not the slightest indication as to what were the
exigencies of the service. The man was not participating in a war.
No specific assignment of the urgent nature has been mentioned.
During all this period he was not on sea. For some time he has
only sent on duty to staff college. But there was insistence that he
would attend the Court during annual leave. He was even at
Headquarters. Again on the next occasion we find that
Commanding Officer writes that husband could not be spared and
he could be available at the time of annual leave in July, 89. This
gives an impression as if the Commander was merely insisting
that husband should go during annual leave and mechanically
leave was refused for attending the case without realising as to
what will be the fate of the woman whose case the Parliament
expects to be decided within a month under Sub-section (3).
Probably such insistence was unjustified, but I would not
comment on it further and in a decisive manner, because I have
1 Shabihul Hassan jafari vs. Zarin Fatma, I (2001) DMC 1 All.

2 Shabihul Hassan jafari vs. Zarin Fatma, ibid.
3 Shafaat Ahmad vs. Fashmida Sardar, I (1991) DMC 102 All.
Muslim law—Family Court 465
not heard the view point of the Commander. All the same this
Court does expect that such letters should come from defence
authorities after they have applied their mind to the entire
circumstances and facts of the case and it is better if they give
slight indication showing as to why it is not possible to spare an
officer when a destitute woman, whose case the Parliament wants
to be decided in a month, is suffering.’ 1
Exercise of option
The application had been filed by the opposite parties under sub-
section 2 of Section 3 of the Muslim Women (Protection of Rights on
Divorce) Act 1986. Proceeding continued before the Magistrate and on
the first hearing the parties did not exercise their option to continue the
proceeding under Section 125 of the Code Criminal Procedure. As
provided in Section 5 of the Muslim Women (Protection of Rights on
Divorce) Act, the option not having been exercised on the first hearing to
continue the proceeding under Section 125 to 128 of the Code Criminal
Procedure, the question of application of Section 125 of the Code does
not arise. 2
Section 3(2) of the Act enables a divorced Muslim woman where
a reasonable and fair provision and maintenance or the account of mahr
or dower due has not been or paid, to file an application before a
Magistrate for an order for payment of such provision and maintenance,
mahr or dower, or the delivery of properties, as the case may be. 3 Section
125 of Code of Criminal Procedure would apply only if both parties
exercise, their options at the first hearing of the application under
Section 3(2) of the Act as contemplated under Section 5 of the Act and
not in any other manner. Consequently the Magistrate cannot exercise his
jurisdiction under Section 125, Criminal Procedure Code in case of a
divorced Muslim woman unless an application is filed under Section 3(2)
of the Act parties exercise their options as required under Section 5 of
the Act. 4
Family Court
The Family Court Act was an earlier enactment. If the Legislature
wanted to invest jurisdiction to the Family Court they would have clearly
mentioned that fact in Section 3 of the Act 25 of 1986. The Legislature
purposely used the word “Magistrate”. Certainly, in respect of Mahr and

2 Sirajur Raheman vs. Nasim Banoo, II (1991) DMC 82 Cut.
3 Riswana Begum vs. Mlv. Motiullah, 62 (1989) CLT 353.
4 Sayed Newak Alli @ Nati vs. Rasida Begum, I (1991) DMC 319
Orissa.
other properties of divorced Muslim woman, only the Magistrate can

adjudicate and the Family Court has no jurisdiction. 1
Section 3 of the 1986 Act itself recognises certain rights of
divorced Muslim Woman, prescribes a forum for redress thereof and
prescribes the manner of execution of the made in that behalf. This
makes the Act complete in itself and does not depend for support on any
other enactment. The section beings with a non-obstante clause and it
over-rides all other provisions of then existing laws. All provisions
contrary to what is contained is Section 3 of 1986 Act, including the
Family Court, 1984, shall stand supersede by its provision. A comparison
of the provisions of 1984 and 1986 Acts would also show that the
purpose and scope of the two acts is some what different. Section 3 is
only limited to certain claims enumerated therein which also can be put
forward by a divorced Muslim Woman under the Act in the manner
prescribed. In other respects it seems to us that even a divorced Muslim
woman can press her claim in the Family Court. 2
An application under Section 3 of 1986 Act can lie only before
the Magistrate concerned and the Family Court established under the
1984 Act cannot exercise jurisdiction unless the same had been
specifically conferred upon the Family Court under the provision of
Section 2(b). 3
Invalid divorce
In one case the petitioner/wife stated that the talaq given by the
respondent was not pronounced before any witness and it was illegal and
the talaq given by the respondent to her is not in accordance with
principles of Shariat and Muslim Law. The order passed by the Court
below also showed that the Advocate appearing for the petitioner argued
before the Court below that the talaqnama pronounced by the respondent
and the talaqnama prepared by him is not as per Muslim Personal Law
and, therefore, it had no sanctity under Mohammedan Law and the
respondent was bound to offer an opportunity to the petitioner to
negotiate and to live with him. It was observed as under:
‘The divorce must be preceded among Muslims by an attempt of
reconciliation between the husband and wife by two mediators
one chosen by the wife from her family and the other by the
husband from his side. In the above view of the matter, a
Mohammedan husband cannot divorce his wife at his within or
1 Patnam Vehedullah Khan vs. P. Ashia Khatoon, II (2000)

DMC 427 AP.
2 Amjun Hasan Siddiqui vs. Salma, II (1992) DMC 1 All.
3 Amjun Hasan Siddiqui vs. Salma, ibid.
Muslim law—Liability of State Wakf Board 467
caprice i.e., divorce must be for a reasonable cause, and it must

be preceded by a pre-divorce conference to arrive at a settlement.
Even if there is any reasonable cause for the divorce, yet there
must be evidence to show that there was an attempt for a
settlement prior to the divorce and when there was no such
attempt prior to divorce to arrive at a settlement by mediators,
then there cannot be a valid divorce under Mohammedan Law.’ 1
Liability of husband
To hold that while maintenance may be payable for and during
the period of Iddat, a fair and reasonable provision shall be made by her
husband forecasting her future needs, would amount to negation of the
very object for which Act of 1986 has been promulgated. It would give
rise to a new concept of liability on the part of the husband which would
be difficult to be translated in concrete terms as it would be almost
impossible to visualize the future needs of a divorced Muslim woman
which would be depending upon several factors like her remarriage
change in the circumstances or in the style, etc. 2
The liability of the husband to provide a reasonable and fair
provision and maintenance is limited for the period of Iddat only.
Therefore, in regard to the second question as to whether the
maintenance contemplated under Section 3(1)(a) of the Act of 1986 is
restricted only for the period of Iddat or a fair and reasonable provision
has to be made for future also within the period of Iddat, it was held that
the liability to pay reasonable and fair provision and maintenance on the
part of the former husband is confined only for and during the period of
Iddat. Even if it is taken for granted for a reasonable and fair provision is
to be made separately from that of maintenance to be given to the wife,
such reasonable and fair provision is confined only for the period of
Iddat, as defined in Section 2 of the Act. 3 This decision and similar
decision are no longer good law because a Constitution Bench of
Supreme Court has recently held that liability of Muslim husband to his
divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period. 4
1 Zulekha Begum @ Rahmathunnisa Begum vs. Abdul Raheem, II

(2000) DMC 99 Karnataka.
2 Usman Khan Bahamani vs. Fathimunnisa Begum, AIR 1990 AP
225 (FB): 1990 Cri LJ 1364.
3 Usman Khan Bahamani vs. Fathimunnisa Begum, ibid.
Liability of State Wakf Board

In one case it was contended that the provision concedes
multiplicity of proceedings, broadly in the following manner: (1) the
proceedings shall in the first instance be initiated against the children of
the divorced woman; (2) if the children are unable to pay maintenance
then the second proceedings shall be initiated against the parents of the
divorced woman; (3) if the parents or any one of them is unable to pay
the respective share of maintenance then fresh proceedings be started
against the relative; (4) in case the relatives are unable to meet the claim
of maintenance, fresh proceedings be initiated against 'other relatives";
and (5) finally, when no relative exists as mentioned in sub-section (1) or
such relatives or any one of them unable to pay maintenance then another
set of proceedings be initiated against the State Wakf Board: all backed
by the orders of the Magistrate. And since the State Wakf Board comes
last, it was contended that its turn instantly has not yet arrived because
no proceedings have been initiated against the relatives. The Supreme
Court considered the above argument and held 1 as under:
‘Going by the arguments and the reasoning adopted by the
appellants, it would, in our way of thinking, have a devastating
effect on the purpose for which the provision was enacted. The
Drafter's pattern in sub-dividing the provision into sub-sections
(1) and (2) evidently was not to cause any split in the legislative
theme because the provisions, as it appears to us, is an integrated
whole. One step is dependent on another. It is futile for a
divorced woman seeking succour to run after relatives, be it her
children, parents, relatives or other relatives, who are not
possessed of means to offer her maintenance and in fighting
litigations in succession against them, dragging them to courts of
law in order to obtain negative order justificatory to the last
resort of moving against the State Wakf Board. In or our
considered view, she would instead be entitled to plead and prove
such relevant facts in one proceeding, as to the inability of her
relations aforementioned, maintaining her directing her claim
against the State Wakf Board in the first instance. It is however,
open for the State Wakf Board to controvert that the relations
mentioned in the provision, or some of them, have the means to
pay maintenance to her. In that event the Magistrate would
perfectly be justified in adding those relatives as parties to the
litigation in order to determine as towards who shall he direct his
orders for payment of maintenance. In one and the same
proceeding, one or more orders conceivably can be passed in
favour of the divorced woman, subject of course to her not re-
1 Secretary, Tamil Nadu Wakf Board vs. Syed Fatima Nachi, 1996(4)
SCC 616: AIR 1996 SC 2423: 1996 CrLJ 3488
Muslim law—Meaning of Iddat period 469
marrying and remaining unable to maintain herself. We hold

accordingly.’ 1
Mahr or dower
Mahr or dower is the sum of money which the wife is entitled to
receive from her husband in consideration of marriage. It cannot be a
consideration for divorce. It is an obligation of a husband arising from a
contract, or otherwise imposed by law or custom on the husband as a
token of his respect for his wife. The language of this sub-section itself
makes it clear that this sum becomes payable to the wife on marriage or
any time thereafter. By asking the husband to pay this amount within the
Iddat period the Legislature has emphasised the urgency of payment.
Mahr is a liability which does not get absolved as a result of any other
payment or consequence. Therefore, Section 3(1)(c) is an additional
benefit. The amount of maintenance or reasonable and fair provision
cannot be confused with mahr. In fact Mahr is no substitute for it. In a
given case a wife may take the mahr amount from her husband even prior
to divorce because of some exceptional circumstances and spend it. 2
Major children
The Mohammedan Law does not cast any responsibility upon the
father for the maintenance of the two adult sons. It was further held that
there was no evidence to show that they are unemployed. Thus the
maintenance was denied. 3
Meaning of Iddat period

The expression used is ‘within the IDDAT period’ and not ‘for
the Iddat’ period. The crucial word is ‘within’ and not ‘for’. The word
‘within’ is quite plain and the contemplation of Section 3(1)(a) is to
make the provision and to pay the maintenance within the iddat period.
The intention of the legislature has to be gathered from the words used
by it giving to the words their plain, normal and grammatical meaning.
The words ‘within’ would mean ‘on or before’, ‘not beyond’, ‘not later
than’. It cannot be said that ‘within’ means ‘for’ so as to limit the
liability of the husband to make the provision and pay the maintenance
only for the iddat period. 4 Exactly same line of reasoning has been
adopted by a Constitution Bench of Supreme Court and has held that the
1 Secretary, Tamil Nadu Wakf Board vs. Syed Fatima Nachi, 1996(4)
SCC 616: AIR 1996 SC 2423: 1996 CrLJ 3488
2 Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, II (2000)
DMC 634 Bombay.
3 Sugrabi vs. Abdul Quayum, I (1985) DMC 254 Bombay.
4 Tajuddin vs. Quomarunnisa Begum, II (1989) DMC 204 AP.
liability of Muslim husband to his divorced wife arising under Section

3(1)(a) of the Act to pay maintenance is not confined to iddat period. 1
The next rule, Simonds call it ‘elementary’, Lord Somervell of
Harrow ‘compelling and Mukherjea, J. ‘settled’, is to read the statute as
a whole so as to find out the true intention of the legislature. It is
interesting to note that Clause (b) of Section 3(1) in relation to the
children is specific in saying ‘provision and maintenance to be made and
paid by her former husband for a period of two years.’ The word used is
‘for’, and it is not so in so far as Clause (a) is concerned. Therefore, had
the legislature wanted that the liability should be confined under Clause
(a) to the IDDAT period only, it could have very well used the word ‘for’
and not ‘within’, more so when it so used the word in the very
succeeding Clauses (b). 2
Natural Justice
The principles of natural justice must be read into the unoccupied
interstices of the statute unless thee is clear mandate to the contrary. 3
Even in administrative matters where a statute does not make any
specific provision for issuing notice, it has been held that where exercise
of that administrative power results in civil consequences to citizens,
unless the statute specially rules out the application of rules of natural
justice, such rules would apply that is notice would have to be issued to
the parties and he will have to be heard. 4
The matter is to be decided by a Court judicially having civil
consequences on the rights of the parties. So, it appears necessary that
husband should be given notice and opportunity of being heard. No
doubt, Sub-Section (4) further provides that if the husband, against
whom an order has been made under Sub-section (3), fails without
sufficient cause to comply with the order, the Court may levy the amount
or order imprisonment. But this does not appear to me that since notice is
to be given under Sub-section (4), it should not be given under Sub-
section (3). The provision regarding maintenance is to be found under
Section 125 Criminal Procedure Code. If Sub-section (1) says that upon
proof of such neglect or refusal to maintain the Magistrate may direct a
monthly allowance to be given to the wife. It is after hearing the husband
and giving notice to him that action is taken under this provision and the

2 Tajuddin vs. Quomarunnisa Begum, II (1989) DMC 204 AP.
3 Institute of Chartered Accountant (1986) 4 SCC 537.
4 Baldeo Singh vs. State of Himachal Pradesh, (1987) 2 SCC 510
followed in State of Haryana v. Ram Kishen (1988) 3 SCC 416.
Muslim law—Object and scope of Act of 1986 471
Magistrate on proof of the fact may make an order. Still under Sub-
section (3) of Section 125, Criminal Procedure Code it has again been
provided virtually in the words of Sub-section (4) of the Act that if the
husband fails without sufficient cause to comply with the order, the
Magistrate may order imprisonment. Thus, again opportunity is given to
the husband. This latter opportunity is in fact provided not to determine
liability of the husband to maintain or to give the amount of maintenance
fixed by the Court but to determine the question whether there is any
sufficient cause on account of which he could not comply with the order.
Here the husband is not allowed to go back and start questioning the
order of maintenance, rather he has only to show as to why he could not
comply with it. Similar appears to be the position under the Act. Under
Sub-section (3) the Magistrate has to determine after hearing the parties
whether reliefs provided in that section should be given to the wife. Then
comes the stage of Sub-section (4). Here the husband cannot be allowed
to question the order passed under Sub-section (3) giving reliefs to the
wife; rather he can only show as to why he could not comply with the
order passed Sub-section (3). Thus, under Sub-section (3) and Sub-
section (4) different points are to be determined and the opportunity is
given to the husband on both the occasions for determining the
relevant point. 1
Object and scope of Act of 1986

Primary object of direction to the former husband to make fair
and reasonable provision for the divorced woman is to provide for her
maintenance after divorce. The quantum of provision has to be made by
the former husband in accordance with his means and standard of living
that is enjoyed by the divorced woman during the subsistence of the
marriage. The mandate to make reasonable and fair provision is not in
any way intended to harass the former husband or to enable the divorced
woman to make any unlawful gain or unjust enrichment out of the
divorce. It is a fair and equitable provision to be made by the former
husband to his divorced wife. Even though reasonable and fair provisions
has to be made by the former husband to the divorced woman within the
period of Iddat if the husband has already made such reasonable and fair
provisions in favour of the divorced woman even during the subsistence
of their marriage it certainly is a factor to be taken into account while
considering whether the former husband is liable to pay any and what
reasonable and fair provisions to the divorced woman. 2

2 Majitha Beevi vs. Yakoob, I (2000) DMC 363 Kerala.
From the provisions of the Act of 1986 and the object with which
it was enacted by the Parliament, it is clear that a divorced Muslim
woman is entitled to get the maintenance only upto the period of Iddat
and after the period of Iddat the Muslim divorced woman is not entitled
to get the maintenance from her former husband as she has lost her right
in view of the provisions of Section 3(1)(a) of the Act of 1986. The Act
of 1986 has completely obliterated the right of maintenance to divorced
Muslim woman. 1 But this view has been overruled by the decision of the
Supreme Court which has held that the liability of Muslim husband to his
divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period. 2
The repeal without saving such right means that such woman had
never acquired such right and in the view of the matter, the said right
now cannot be enforced under Section 125 Cr.P.C. Even if an order
granting maintenance had been passed in favour of a Muslim divorced
woman prior to the coming into force of the Act of 1986 and has become
final or is pending in the revision before any Court or is being
challenged by the husband, even in those cases, the Muslim divorced
woman is not entitled to get the Maintenance as allowing the
maintenance in those cases will be in complete contravention of the
intention of the legislature and will amount to frustrate the very object of
Act for which it has been enacted. No exception has been made in
Section 7 of the Act of 1986, which means that neither the order passed
under Section 125 Cr.P.C. nor the liability already incurred earlier to the
coming into force of the Act, 1986 has been saved. The inevitable
conclusion of passing of the Act of 1986 is that not only right under
Section 125(1) but also the remedy under Section 125(3) Cr.P.C. are lost.
Section 7 of the Act of 1986 envisaged a complete replacement of right
and remedy under Section 125 Cr.P.C. 3
Object behind four marriages

The original basic fundamental bedrock of the permissible right
of a Muslim to have marriage of more than one women and maximum
four was not motivated on in any way concerned with the general
unbridled right for enjoyment of life or sex or having a company. But it
was motivated with a great pious sacred object of providing protection to
those orphans girls who used to become orphans on account of war or

Muslim law—Right to property 473
other reasons and thereafter when the society was not capable of
providing them full satisfaction and looking after their necessities, then
on great prophet injunction were revealed that in such cases best way to
provide protection is to marry such orphans girls upto maximum of four
with the rider and the condition that all must be treated alike equal and
justice must be done to all of them. Any failure in this respect of the
husband to give equal treatment or to provide equal justice or to provide
equal protection would be violative of the basic intention of object and
the purpose of protecting orphans which was kept in the tenant of Kuran
Sarif by the great prophet. 1
That being so Section 125 Criminal Procedure Code enacted by
the legislature meant for providing such protection in cases where after
the conducting marriage justice is not done to the weaker spouse and the
wife is left high and dry without maintenance on account of neglect or ill
treatment or any other reason whatever the case may be. 2
It is true that the explanation added to the proviso to Sub-section
(3) taken in itself alone, from the context of other clauses of this section,
would give an impression that second marriage per se simplicitor in itself
is sufficient to claim maintenance and nothing more is required to prove.
In that context it would certainly raise a serious question of
interpretation of the constitution and all of Article 25 and whether
Section 125 Criminal Procedure Code Sub-section (iii) the proviso and
the explanation attached to it by which a Muslim woman is entitled to
claim maintenance simply on the ground of second marriage of husband
would be inconsonance with or in violation of the above tenants
injunction and next of the Muslim personal law. However that is a matter
which would not decided in such a casual manner because at the moment
neither the full text of the Muslim law has been referred to or is available
nor it has been debated or there has been dialogues nor tiring process
started so far in any legal Court. 3
Right to property
In one case a contention was raised that in view of Section
3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act
the divorced woman is entitled to all the properties given to her
before, at the time or after the marriage by the husband or any
relatives of the husband or his friends, the properties admittedly given
by the respondent to the revision petitioner during the subsistence of
1 Amir Khan vs. Mst.Maxiasm, I (1988) DMC 189 Raj.

2 Amir Khan vs. Mst.Maxiasm, ibid.
3 Amir Khan vs. Mst.Maxiasm, ibid.
her marriage will come within the ambit of Clauses (d) of Sub-section
(1) of Section 3 of the Act and as such those properties standing in the
name of the revision petitioner cannot be taken into account while
considering the eligibility of the revision petitioner for reasonable and
fair provision from the respondent and therefore, the lower Court is in
absolute error in disallowing her claim for reasonable and fair
provision under Clauses (a) of Sub-section (1) of Section 3 of the Act,
is not sustainable. The properties referred to in Clauses (d) of Section
3(1) of the Act cannot be construed as properties in its widest sense,
as the revision petitioner wants in this case. The word ‘property’
occurring in Clauses (d) of Section 3(1) should be considered on a
strict and restricted sense than the wide amplitude given to the word
in common parlance. If the word ‘property’ in Section 3(1)(d) of the
Act is interpreted so widely so as to embrace the vast properties or the
entire properties acquired by the former husband in the name of his
divorced wife during the subsistence of the marriage, it will
jeopardise the very intentment of providing reasonable and fair
provision by the former husband to his divorced wife. From the
Quranic injunction and the provisions of Section 3(1) of the Act
referred to above, it is patent that the idea behind the former husband
providing reasonable and fair provision at the time of divorce to his
divorced wife is to protect her from destitution and vagrancy due to
the divorce. Therefore, by a reasonable, pragmatic and harmonious
interpretation of the provisions of the Clauses (a) and (d) of Sub-
section (1) of Section 3 of the Act, it is clear that Clauses (d) deals
with the properties given by the former husband to the divorced wife
during the subsistence of the marriage by way of gift or otherwise.
But Clauses (d) of Sub-section (1) of Section 3 does not take in the
entire or the major portion of the property acquired by the husband
during the subsistence of the marriage in the name of his wife due to
his own reasons for such acquisition without the interim to give the
property to the wife as her exclusive property. 1
Object of granting maintenance

Primary object of direction to the former husband to make fair
and reasonable provision for the divorced woman is to provide for her
maintenance after divorce. The quantum of provision has to be made by
the former husband in accordance with his means and standard of living
that is enjoyed by the divorced woman during the subsistence of the
marriage. The mandate to make reasonable and fair provision is not in
any way intended to harass the former husband or to enable the divorced
1 Majitha Beevi vs. Yakoob, I (2000) DMC 363 Kerala.

Muslim law—Obligation of Muslim father 475
woman to make any unlawful gain or unjust enrichment out of the

divorce. It is a fair and equitable provision to be made by the former
husband to his divorced wife. Even though reasonable and fair provision
has to be made by the former husband to the divorced woman within the
period of iddat yet if the husband has already made such reasonable and
fair provision in favour of the divorced woman even during the
subsistence of their marriage it certainly is a factor to be taken into
account while considering whether the former husband is liable to pay
any and what reasonable and fair provision to the divorced women. 1
A Muslim husband is liable to make reasonably and fair provision
for the future of the divorced wife which obviously includes her
maintenance as well. Such a reasonable and fair provision extending
beyond the iddat period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act. 2
Obligation of Muslim father

Maintenance for the prescribed period referred to in Clause (b) of
Section 3(1) is granted on the claim of the divorced mother on her own
behalf for maintaining the infant/infants for a period of two years from
the date of the birth of the child concerned who is/are living with her and
presumable is aimed at providing some extra amount to the mother for
her nourishment for nursing or taking care of the infant/infants upto a
period of two years. It has nothing to do with the right of the
child/children to claim maintenance under Section 125, Cr.P.C. So long
as the condition for the grant of maintenance under Section 125. Cr.P.C.
are satisfied the rights of the minor children, unable to maintain
themselves, are not affected by Section 3(1)(b) of the 1986 Act. Under
Section 125, Cr.P.C. the maintenance of the children is obligatory on the
father (irrespective of his religion) and as long as she is in position to do
so and the children have no independent means of their own, it remains
his absolute obligation to provide for them. Insofar as children born of
Muslim parents are concerned there is nothing in Section 125, Cr.P.C.
which exempts a Muslim father from his obligation to maintain the
children. These provisions are not affected by clause (b) of Section 3(1)
of the 1986 Act and indeed it would be unreasonable unfair inequitable
and even prosperous to deny the benefit of Section 125, Cr.P.C. to the
children only on the ground that they are born of Muslim parents. The
1 Majitha Beevi vs. Yakoob, II (1999) DMC 699 Kerala.

effect of a beneficial legislation like Section 125, Cr.P.C. cannot be

allowed to be defeated except through clear provisions of a statute. 1
Both under the personal law and the statutory law (Section 125
Cr.P.C.) the obligation of a Muslim father, having sufficient means, to
maintain his minor children, unable to maintain themselves, till they
attain majority and in case of female till they get married, it absolute,
notwithstanding the fact that the minor children are living with the
divorced wife. 2
The children of Muslim parents are entitled to claim maintenance
under Section 125, Cr.P.C. for the period till they attain majority or are
able to maintain themselves, whichever is earlier, and in case of females,
till they get married, and this right is not restricted, affected or
controlled by divorcee wife’s right to claim maintenance for maintaining
the infant child/children in her custody for a period of two years from the
date of birth of the child concerned under Section 3(1)(b) of the 1986
Act. In other words Section 3(1)(b) of the 1986 Act does not in any way
affect the rights of the minor children of divorced Muslim parents to
claim maintenance from their father under Section 125, Cr.P.C. till they
attain majority or are able to maintain themselves, or in the case of
females, till they are married. 3
Payment of mehr
The quintessence of mehar whether it is prompt or deferred is
clearly not a contemplated quantification of a sum of money in lieu of
maintenance upon divorce. Indeed, dower focuses on marital happiness
and is an incident of connubial joy. Divorce is farthest from the thought
of the bride and the bridegroom when mehar is promised. Moreover,
dower may be prompt and is payable during marriage and cannot,
therefore, be a recompense for divorce too distant and unpleasant for the
bride and bridegroom to envision on the nuptial bed. Maybe, somehow
the masculine obsession of jurisprudence linked up this promise or
payment as a consolidated equivalent of maintenance after divorce.
Maybe, some legislatures might have taken it in that light, but the law is
to be read as the law enacted. The language of Section 127(3)(b) appears
to suggest that payment of the sum and the divorce should be essentially
parts of the same transaction so as to make one the consideration for the
other. Such customary divorce on payment of a sum of money among the
1 Noor Saba Khatoon vs. Mohd. Quasim, AIR 1997 SC 3280: 1997(6)
SCC 233: 1997(5) Scale 248: 1997(7) JT 104: 1997(2) Ker.LT 363:
1997(2) BLJR 1633.
2 Noor Saba Khatoon vs. Mohd. Quasim, ibid.
3 Noor Saba Khatoon vs. Mohd. Quasim, ibid.
Muslim law—Period of maintenance 477
so-called lower castes are not uncommon. At any rate the payment of
money contemplated by Section 127(3)(b) should be so linked with the
divorce as to become payable only in the event of the divorce. Mehar as
understood in Mohammedan Law cannot, under any circumstances be
considered as consideration for divorce or a payment made in lieu of loss
of connubial relationship. Under Section 127(3)(b) of the Cr.P.C., an
order for maintenance may be cancelled if the Magistrate is satisfied that
the woman has been divorced by her husband and that she has received,
whether before or after the said order, the whole of the sum which, under
any customary or personal law applicable to the parties was payable on
such divorce. Even by harmonising payments under personal and
customary laws with the obligations under Sections 125 to 127 of the
Cr.P.C., the conclusion is clear that the liquidated sum paid at the time
of divorce must be a reasonable and not an illusory amount and will
release the quondam husband from the continuing liability, only if the
sum paid is realistically sufficient to maintain the ex-wife and salvage
her from destitution which is the anathema of the law. This perspective
of social justice alone does justice to the complex of provisions from
Section 125 to Section 127 of the Criminal Procedure Code. 1
Period of maintenance
The Magistrate observe that under Section 3(1)(a) the first
respondent was entitled to get reasonable and fair provision for
maintenance for the iddat period and for his period she is not entitled to
get maintenance for the child. This proposition is clearly illegal. What
has been mentioned under Section 3(1)(a) is the reasonable and fair
provision and maintenance for the iddat period. The right of the child to
get maintenance for a period of two years from the date of birth is an
independent right which cannot be affected by the claim of the mother
for any reasonable and fair provision for maintenance due to the mother
under Section 3(1)(a) of the Act. The liability of the father to maintain
his child for a period of two years. under Section 3(1)(b) of the Act is
independent of the provision to pay reasonable and fair provision for
maintenance of wife. The Magistrate was not justified in limiting the
maintenance for a period of 21 months instead of 24 months. The first
respondent-wife is in fact entitled to get Rs. 600/- more towards
this count. 2
1 Fuzlunbi vs. K. Khader Vali, AIR 1980 SC 1730: 1980 CrLJ 1249:
1980 CrLR (SC) 524: 1980 SCC (Cr) 916: 1980 CAR 246: 1980
BBCJ 77.
2 Abdul Sathar vs. Arifa Beevi, I (1991) DMC 275 Ker.
Principles of law
The principle of law in regard to grant of maintenance to a
Muslim Law are as under:—
(i) A divorced Muslim woman is entitled to and can claim
maintenance only under the provision and in accordance with the
procedure provided under Section 3 and 4 of the Muslim Women
(Protection of Rights on Divorce) Act.
(ii) She is entitled to claim maintenance from her former husband
for and during the period of iddat and besides that she is also
entitled to claim dower amount agreed at the time of marriage and
other properties which were given to her by her relatives and
friends at the time of marriage or thereafter.
(iii) In case a divorced woman is not re-married and is not able to
maintain herself after the expiry of iddat, she may bring an action
claiming maintenance and she may be entitled to get maintenance
in accordance with the procedure provided under Section 4 of the
said Act.
(iv) After the enactment of the aforesaid Act a divorced woman is
not entitled to bring an action for the said remedy under Section
125 of the Code of Criminal Procedure.” 1
However a Constitution Bench of Supreme Court in a recent
decision, held 2 as under:
‘1. A Muslim husband is liable to make reasonably and fair
provision for the future of the divorced wife which obviously
includes her maintenance as well. Such a reasonable and fair
provision extending beyond the iddat period must be made by the
husband within the iddat period in terms of Section 3(1)(a) of the
Act.
2. Liability of Muslim husband to his divorced wife arising under
Section 3(1)(a) of the Act to pay maintenance is not confined to
iddat period.
3. A divorced Muslim woman who has not remarried and who is
not able to maintain herself after iddat period can proceed as
provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they
inherit on her death according to Muslim law from such divorced
woman including her children and parents. If any of the relatives
being unable to pay maintenance, the Magistrate may direct the
State Wakf Board established under the Act to pay such
maintenance.
1 Bibi Shahnaz @ Munni vs. State of Bihar, II (1999) DMC 589

Patna: 1999(1) HLR 137.
Muslim law—Procedure of talaq 479
4. The provisions of the Act 1 do not offend Articles 14, 15 and 21

of the Constitution of India.’
Procedure for application of Act of 1986

Section 5 of the Act, has laid down therein that if in an
application filed under Section 3(2) of the Act the divorced woman and
her former husband jointly or separately request the Magistrate on the
date of first hearing of the application that they would prefer to be
governed by the provisions of Section 125 to 128 Cr. P.C., then the
Magistrate will dispose of the application accordingly. When no
application under Section 3(2) was filed, Section 5 is not attracted at all. 2
Under section 3(2), where a reasonable and fair provision and
maintenance or the amount of mahr or dower due has not been made or
paid or all the properties given to the divorce woman before or at the
time of marriage of after her marriage by her relatives or friends or the
husband or any relatives of the husband or his friends have not been
delivered to her on her divorce, she may file an application before the
Magistrate for an order for payment of the same. 3
Procedure of talaq
The intention of the Legislature being that persons living as
husband and wife may not play fraud on the legislation or the Socialist
scheme of equitable distribution of land by pretending separation among
themselves as wife and husband to deprive the State of acquiring the
essential surplus land with them and mar the social objects of the
Legislature provided that husband and wife, not necessarily breaking
their ties of marriage by decree of annulment of marriage or divorce, yet
for reasons, living separately as separated wife and husband and that the
separation is the result of not their own act of volition but is resultant
from the decree of the Court granting judicial separation on the ground
of law such judicially separated wife or husband though their marriage
ties may continue and survive may get the benefit of expression of the
judicially separated wife or husband and such a wife or husband who has
been judicially separated is not to be considered to be the member of the
family of either for the purpose of determination of ceiling area of the
tenure-holder or for declaration of surplus land. The intention of the
framers of law appears to be that the judicially separated wife’s property
may not be subjected to any adverse effect by being clubbed with that of
1 Muslim Women (Protection of Rights on Divorce) Act, 1986

2 Nasiruddin vs. Dulari Bibi, I (1992) DMC 228 Ori.
3 Nasiruddin vs. Dulari Bibi, ibid.
her husband and similarly the husband in such a case where there has
been judicial separation under the decree of the Court may not be
deprived of his holding merely by the clubbing of the wife’s holding
with his holding and on the basis thereof his or his wife’s holding being
declared as surplus. When that is the intention then a question arises
whether it would have been the intention of the Legislature to deprive a
divorced woman of her holdings or to make her holding subject matter of
its being clubbed and being declared as the part of surplus land of her
husband, the tenure-holder and thereby she herself being deprived of her
holding of property. 1
The plight of a divorced woman can be realised and has been
realised by learned Judge of this Court. Marriage is a status which
creates vested rights and interest of cohabitation, succession and
maintenance. It brings a bloom to the life. The divorce brings a plight of
vagaries of life and upheaval in the life of a woman at times in the life of
man. Under Hindu Law the concept of divorce had not been known till
before the introduction of Hindu Marriage Act and it was for the first
time the concept of divorce stepped in. Howsoever strained relation
between husband and wife would have been it was and has been a social
and legal obligation of the husband under the law known as Hindu Law
to maintaining his wife all through his and her life. The introduction of
Hindu Marriage Act introduced concept of divorce and a divorced
woman or a judicially separated woman had been declared entitled to
claim maintenance from her husband vide Sections 24 an 25 of the Hindu
Marriage Act uptill the time she does not remarry or does not become
subject to disqualification under Sub-section 3 of Section 25 of Hindu
Marriage Act. Under Criminal Procedure Code as well it has been
provided that a divorced woman would be entitled to claim maintenance
from her husband as per Explanation (b) to Section 125 Cr.P.C. 2
Under Muslim Law the plight of a Muslim woman, divorced by
her husband is more pathetic particularly the weak one. As the state of
affairs in India under Muslim Law is claimed to exist and operate, it is
the husband who has got a free hand to divorce his wife as and when he
desires and even orally by reciting Talaq thrice or by reciting three Talaq
in one sentence. Whether that law is in consonance with the Constitution
or spirit of the Constitution. The poor Muslim woman has been held to
be entitled to maintenance for a limited period of three months and then
is left to the vagaries of fate after the expiry of period of three months
unless she succumbs to the circumstances of re-marrying someone, as a
1 Rahmat Ullah vs. State of U.P., 1994 (2) DMC 64 All.

2 Rahmat Ullah vs. State of U.P., ibid.
Muslim law—Procedure of talaq 481
divorced Muslim woman who may be entitled for the maintenance of

Iddat period of three months has been subjected to statutorily directed
litigation against such of her relatives as would be entitled to inherit her
property on her death according to Muslim Law to ay reasonable and fair
maintenance. The divorced woman and the Magistrate are required to
locate affluent relative of indigent divorcee forgetting the reality of the
life that a poor woman has ordinarily got poor relatives with insufficient
means to support and maintain her. Whether it will be just and proper to
subject such a lady to duel misery i.e. of loss of right of maintenance
from divorcing husband on one hand and on the other depriving her of
her holding by clubbing those holdings with that of her husband simply
on technical ground to the effect that she has not got a decree for divorce
and on that ground by treating her to be the family member of the
husband who has already divorced her. Law has got to be interpreted
keeping in view the basic and fundamental principles of the law of the
Constitution of India and in particular the concept of justice, social and
economic and political enshrined in the Constitution and principle of
equality before law and equal treatment of law keeping pace with
rationality or to say the reason and free from any type of bias or
discrimination on the ground of sex or religion. 1
The dissolution of marriage in these form of Ila, Zihar, Khula and
Mubarat per se shows that under these forms, the divorce by itself does
not become effective and husband and wife have been provided ample
opportunity of rethinking as well as for retracing the step taken towards
divorce before the divorce becomes effective under Ila or Zihr till before
the passing of decree for divorcee. In the same way the Khula and
Mubarat i.e. dissolution of marriage also provides for ample opportunity
to husband and wife to consider and re-consider the disputes amongst
them, to find out ways and means to obviate and remove the causes
leading to aversion and desire of separation and to come to an agreement
or Settlement to lead a fresh and happen life as husband and wife and in
particular keeping in view the disastrous consequences of dissolution of
marriage or divorce before the same takes place in irrevocable manner. It
is well known that the a moment the divorce becomes irrevocable there
can be no tracing back of the steps either by husband or by the wife
except undergoing of the wife to the harshness of what is known as
Halala or the like as referred to above on one hand and other of the poor
woman being placed to another agony of losing the right of maintenance
by husband. 2

Talaq-ul-Bidaat or talaq against the injunctions of Quoran is a

sin. It is some act which is tantamount to think against the injunction of
Allah and so immoral and irreligious. If it is irreligious than Talaq
Bidaat definitely does not come eviction the frame work of the
expression religion or “religious freedom” and such a mode of talaq as
claimed or relied on by petitioner being based on some practice or
custom which appears to have developed in breach of the basic tenets of
Islam. Right to religion under Article 25 of the Constitution does not
extend to the deeds, practice, customs, acts or actions including
acquisition or creation of property by irreligious or by immoral means or
means or modes running in conflict with the basic tenets and ordains of
the Holy Book of that religion simply on the pretence of name of that
religion, so Talaq-Bidaat is not a religious right. It appears to be against
the basic tenets of Islam or Holy Quoran. Further as I have already
mentioned this mode of Talaq being against the doctrine and principles
enshrined in various provisions of the Constitution referred to above
including the preamble of the Constitution which lays emphasis on and
grants assurance to on the dignity of individual and under Article 51A,
this mode of divorce and the period cannot be deemed to apply in India
under Section 2 of the Shariyat Application Act i.e. Act no. 26 of 1937,
read with Article 372 of the Constitution of India. Considering on both
the counts it appears that Talaq-ul-Bidaat i.e. making of irrevocable talaq
at once at one sitting in any form even if might have been part of
Shariyat Law or present law of Muslims in Arab having developed
during Ommayyade regime but the same is not operative under Section 2
of Shariyat Application Act or Article 372 of the Constitution of India
nor can be deemed to be continuing in operation. 1
Proof of divorce
In Mulla’s Book on Principles of Mohammedan Law 2, it is
mentioned that for oral Talak if the words are expressed or understood as
implying divorce, then it becomes effective for Talak. It is also
mentioned, that it is not necessary that the Talak should be pronounced
in the presence of the wife or even addressed to her.
The learned Writer has also expressed 3 that the ‘Talak
pronounced in the absence of the wife takes effect, though not
communicated to her, but for the purpose of Dower it is necessary that it
should come to her knowledge and her alimony may continue till she is
informed about the divorce.’
1 Rahmat Ullah vs. State of U.P., ibid.

2 18th Edition at pages 326 and 327
3 On page No. 327 of the same book
Muslim law—Proof of divorce 483
In one case a husband was declared to have divorced his wife in

the presence of the witnesses but at time of this declaration, presence of
the wife was not proved. From the contents of reply to the notice of the
wife, the fact of the knowledge of divorce was communicated to the non-
applicant/wife for the first time on 5.1.1989 and under these
circumstances the learned Additional Session Judge awarded an
additional amount of maintenance amounting to Rs. 7,600/- which was
held to be not in violation of any law. 1
Upon a consideration of all material as available on record
including the Talaknama executed on 10.8.1996 by the husband before
the Chief Imam of Uluberia Jamma Masjid, it was held that the factum of
divorce of the wife by the husband has been duly proved in accordance
with the provisions of Mohammedan Law and also the provisions
contained in Section 2(a) of the Muslim Women (Protection of Right on
Divorce) Act, 1986, it was held that in the fact and circumstances of the
case it cannot be said that the proceeding under Section 127 of the Code
was not applicable in this case. 2
Even through it is unilateral power of the husband to pronounce a
talak, the law prescribes certain modes of effecting even oral talak.
Whether in a particular case there is divorce or not, will always depend
on establishment of the facts which constitute the same. It will not be a
question of fact alone, but a mixed question of law and fact. The first
party being, whether talak has, in fact, taken place and the other part of
the question would be, whether that is in accordance with the principles
of Mohammedan Law. The question as to how a talak can be effected and
whether in the facts and circumstances of a given case, the talak, as
alleged by the husband was in fact effected and whether that is legal and
valid, are the questions which are required to be decided in the facts and
circumstances of each case. 3
The pleading is one thing and proof in another. Pleading is formal
allegation by the parties of their respective claims and defences to
provide a notice of what is to be expected at trial and proof is
establishment of fact by leading evidence. There is no authority to the
proposition that mere allegation in the pleading by itself should be taken
either to be a proof of the fact alleged or ever otherwise to be
independently as a declaration of existence of cessation of legal
1 Gulam Hasan vs. Johra Bi, I (1996) DMC 348 MP.

2 Kousher Ali Lasker vs. Moslema Bibi, I (2001)
DMC 350 Calcutta.
3 Saira Bano vs. Mohd. Aslam Ghulam Mustafa Khan Sherwani, I
(2001) DMC 457 Bombay.
relationship between the parties. It is, however, not legal and valid or is
not otherwise proved, the statement of the husband should itself be taken
as a declaration of divorce. 1
Pleading in course of proceeding or any statement made in the
witness-box or in any application is for the purpose of making out a case
by parties, and evidence is led for supporting the case by parties, and
evidence is led for supporting the case already pleaded. The Forum of
Judicial proceedings cannot be used for declaring existence or cessation
of legal relationship between the parties and, therefore, mere contention
in the written statement or in any application or in plaint by itself cannot
be accepted to be either an acknowledgement of divorce already given
specially even without deciding upon the validity the legality of the
earlier divorce. It can never be said to mean a fresh declaration of
divorce from the date of such assertion being made in the proceedings or
even from the date when it is stated in the proceedings. The Court
proceedings should be confined to the assertion of facts by parties and to
the proof of facts so asserted or alleged and not for any other purpose
specially for acknowledgement of declaration of divorce. It is, however,
an altogether different thing if the parties settle their disputes and the
settlement is recorded and decree on terms passed. The rights and
interests of the parties cannot be jeopardised by a unilateral statement
made during the course of proceedings by the other party either orally or
in writing. 2
Similar view has been expressed as under:
‘Written statement is a pleading. Pleading is one thing and proof
is another. Pleading is formal allegations by the parties of their
respective claims and defences to provide notice of what is to be
expected at trial. Proof is establishment of a fact by evidence or
matter before the Court or legal Tribunal . Where the parties are
in dispute as regards a material fact, in averment in the pleading
does not constitute evidence, as what is stated in the pleading is
recital of past even which is required to be proved. Under the
Evidence Act, if a material fact pleaded is not proved, it follows
that the Court considers or believes that the fact does not exist.
Therefore averment in the pleading cannot be used in favour of
the maker. This being the position, statement made by the
husband in his pleading or deposition that he has divorced his
wife is recital of past event, and, if talak pleaded is not proved
such statement shall be of no consequence. In that view of matter,
if statement made by the husband that he had divorced his wife in
his pleading or deposition is considered as an acknowledgement
1 Saira Bano vs. Mohd. Aslam, ibid.

2 Saira Bano vs. Mohd. Aslam, ibid.
Muslim law—Reconsideration of order 485
of divorce by talak, it will be against the policy of law, and it

would also amount to furnishing or providing evidence to talak,
which is against the rule of pleading and proof.’ 1
Therefore divorce must be for a reasonable cause and it must be
preceded by a pre-divorce conference, if the statement made orally in
evidence or in the written statement that the husband his divorced his
wife in a proceeding under Section 125 Criminal Procedure Code, 1973
will be valid talak from the date of making statement cannot be sustained
as it would be contrary to above conclusion. 2
Another view is as under:
‘Where in proceeding started under Section 488(old): 125(new),
Cr.P.C. by a Mohammedan wife against her husband for her
maintenance, the husband states in the written statement that he
had already divorced his wife and the Court comes to the
conclusion that divorce pleaded is not proved, then such a
statement in the written statement itself operates as an expression
or declaration of divorce by talak, and the divorce would be held
to take effect at least from the date on which the written
statement was filed by the husband. The reason for the decision is
that the statement made by the husband orally in the deposition or
in his written statement that he had divorced his wife in an
acknowledgement of talak alleged to have effected by him
already and, therefore, the divorce would be held to have effect at
least from the date upon which the acknowledgement in made.’ 3
Reconsideration of order
Sub-Section (3) of Section 127 provides that where any order has
been made under Section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from her husband, Magistrate
shall, if he is satisfied that the woman has been divorced by her husband
and that she has received, whether before or after the date of the said
order, the whole of the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce, cancel such order.
This provision will no doubt help a petitioner in case he has pleaded in
the application filed by him under Section 127, Criminal Procedure Code
that either prior to or subsequent to the order passed under Section 125
Criminal Procedure Code that opposite party received the whole sum

2 Zeenat Fatema Rashid vs. Iqbal Anwar, ibid.
3 Asmat Ullah vs. Mst. Khatun Unnisa, AIR 1939 All 592; Wahab Ali
vs. Qamro Bi, AIR 1951 Hyderabad 117, Chand Bi vs. Bandesha,
AIR 1961 Bombay 121; Abdul Shakoor vs. Kulsum, 1962(I) CrLJ
247 and Mohammad Ali vs. Fareedunisa, AIR 1970 AP 199.
which under the customary or personal law, particularly Act 25 of 1986

was payable to her divorce. 1
Refusal co-habit
The husband is bound to maintain his wife so long she is faithful
to him and obeys his reasonable orders. 2 The husband has a duty to
maintain his wife. In no uncertain terms the Article says that the husband
is bound to maintain his wife so long she is faithful to him and obeys his
reasonable orders. The husband can refuse to maintain the wife is if she
is disobedient. This, however, is also conditional in that refusal on the
part of the wife must be unjustified and that she does not leave the
husband’s house on account of his cruelty. Thus, just as the wife does
not have an absolute right to maintenance, the husband also does not
have a licence to treat the wife with cruelty. This is clarified by Article
278 which deals with order of maintenance. This Article categorically
provides that if the husband neglects or refuses to maintain the wife
without any lawful cause, the wife may sue for maintenance. The only
limit is that wife cannot sue for past maintenance unless there is an
agreement to the contrary. 3
In one case the wife had specifically pleaded allegations of
cruelty and she had also specifically pleaded the allegations of
unchastity which had been made against her. She had also categorically
stated that on one occasion the mother of defendant almost split the ear
lobe of the wife whilst trying to remove one of the ear rings from her
ear. It was held that although all these facts are sought to be denied, yet
this stage it is the word of the plaintiff against the word of
the defendant. 4
Retrospective application of Act of 1986

Vested rights of parties cannot be taken away by implication.
Significantly while under Section 5 of the Muslim Women Act there is a
specific reference to Section 125 to Section 128 of the Code in the
transitional provision contained in Section 7, Section 128 of the Code
which speaks of enforcement of order of maintenance is absent which
clearly indicates the intention of the Legislature to protect the
crystallised or vested rights of a divorced Muslim woman. Every statute
1 S.K. Nasiruddin vs. Dulari Bibi, II (1991) DMC 403 Orissa.

2 Article 277
Bombay.
Bombay.
Muslim law—Retrospective application of Act of 1986 487
is prima facie prospective in operation unless it is expressly or by

necessary implication made to have retrospective operation. The
procedural laws are normally treated to be retrospective, while the laws
relating to vested rights are prospective. Wider retrospective operation is
not to be given to a statue if its language does not necessities it. 1
The rights of a divorced woman which have been finally
determined and taken the shape of judgments or orders of Courts of law
prior to the coming into force of the Muslim Women Act will have to
remain untouched and protected. This rests on the sound principle that in
respect of transactions which are complete at the time when the new
enactment comes into force, if new disabilities or obligations are created
it will work great injustice. Courts are concerned with problems of
destitute women and their crystallised rights. The usual presumption
against retrospective will operate with greater rigour in this case. The
Muslim Women Act is not made retrospective by express words. There is
no manifestation of such intention either by express words or by
necessary implication. 2
There is obviously no express provision in the Muslim Women
Act. Nor is there any necessary intendment suggesting retrospective
operation. In fact while under Section 5 of the Muslim Women Act the
Legislature has made a specific reference to the provisions of Section
125 to 128 of the Code. Section 7 clearly omits reference to Section 128.
It merely refers to Section 125 and Section 127 of the Code. Nothing
prevented the Legislature from adding Section 128 in Section 7 of the
Muslim Women Act. This omission is intentional. It intends to keep the
vested and crystallised rights of divorced Muslim women intact. 3
Mere non-mention in the statute that it is retrospective is not
sufficient to hold that the statute has only prospective operation. The act
is a declaratory one. The presumption against retrospective operation
will not apply to declaratory statutes. The preamble of the Act sheds
sufficient light as to whether it is prospective or retrospective. The
preamble reads:
“An Act to protect the rights of Muslim woman who have been
divorced by, or have obtained divorce from, their husbands and to
provide for matters connected therewith or incidental thereto”.

DMC 634 Bombay.
2 Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh, ibid.
DMC 634 Bombay.
From the preamble it is very clear that the Act applies to Muslim
women who have been divorced or have obtained divorce from their
husbands. From a reading of the Act it is not possible to discern that it
has only prospective operation. 1
As the Act declares duties and liabilities of a Muslim husband
with a view to give adequate protection to the divorced wife and as
preamble of the Act itself states that it is applicable to every divorced
Muslim wife, contention that it has no retrospective operation is not
tenable. There is no logic in holding that the Act for the first time
introduced a burden on the Muslim husband to provide for reasonable
and fair provision and maintenance to the divorced wife. The Act should
be considered only as retrospective. Contention that the Act is only
prospective and that the respondent having been divorced prior to the
commencement of the Act is not entitled to invoke the provisions of the
Act is without any merit. 2
The question of retrospective application was considered by
Supreme Court in a recent decision 3 but no finding in this regard was
given in the operative portion of the judgement. But from the tenor and
the ultimate finding which holds a husband liable to make provision for
maintenance of wife till she is remarried, with in the period of iddat
while holding the liability of husband shall not be limited till the period
of iddat only, it appears that the existing orders are not obliterated
merely by the enactment of Act of 1986.
Return of gifts
There was no tangible evidence on record to establish that the
amount of Rs. 50,000/- is given by the father of the wife as a gift so as to
entitle her to get back the amount under Section 3(1)(d) of the Act. If it
is a loan advanced by the father of the wife, he may have his civil
remedy to recover the amount. It was held that by no stretch of
imagination the amount of Rs. 50,000/- alleged to have been paid by the
father of the wife can be construed as a gift by her father to the husband
coming within the ambit of Section 3(1)(d) of the Act. Therefore, the
order passed by the learned Magistrate directing the husband to pay
Rs. 50,000/- to the respondent under Section 3(1)(d) of the Act was held
to be absolutely illegal. 4
1 Hyderkhan vs. Meharunnissa, II (1992) DMC 382 Ker.

2 Hyderkhan vs. Meharunnissa, ibid.
4 Nizar vs. Hyrynneessa, I (2000) DMC 29 Kerala.
Muslim law—Right of child 489
Right of child
The children are entitled to maintenance for period till they attain
majority or are able to maintain themselves. The said right of children is
not restricted, affected or controlled by Section 3(1)(b) of the Muslim
Woman Protection of Rights on Divorce Act. 1
There is provision which debars the Muslim woman, who is
maintaining her child or children born to her before or after her divorce,
to claim maintenance from her former husband and, therefore, Section
3(b) of the Act cannot be said to create any bar for the Muslim woman,
who is divorced, to claim maintenance for her child or children born to
her before or after her divorce from her former husband. The legislative
intention of Section 3(b) appears to be that irrespective of any other law
and the divorce of a Muslim woman if she is maintaining the children
born to her before or after her divorce she is entitled to claim
maintenance from her former husband for a period of two years from the
respective date of birth of such children. It does not take away the right
of the minor child to claim maintenance from his or her father even after
his or her mother has been divorced. The right which is conferred on the
minor child of claiming maintenance under Section 125 of the Criminal
Procedure Code cannot be said to have been taken away by the provision
contained in Section 3(b) of the Act of 1986. The provisions of Section
125 of the Criminal Procedure Code which provide for maintenance of
both legitimate and illegitimate child are neither diluted nor made
redundant by Section 3(b) of the Act of 1986. Harmonious construction
of Section 125 of the Code of Criminal Procedure and Section 3(b) of the
Act of 1986 leads to an irresistible conclusion that the Muslim minor
child or children have to be maintained by their parents. If the conditions
requisite under Section 125 are fulfilled. While Section 3(b) entitles the
divorced Muslim woman to claim maintenance for the children born to
her before or after the divorce from her former husband for a period of
two years from the respective dates of birth of the children, the said
section does not take away the right of the minor Muslim child or
children to claim maintenance from his or her father even if the mother
has been divorced and has attained the status of divorced Muslim
woman. 2
The welfare of the child is a paramount consideration, he or she
may be of any class, caste or creed. How can the welfare of the child be
looked into if such child is not properly maintained ? If the child is born
from the wedlock or otherwise because Section 125 of the Criminal
1 Abdul Mannan vs. Saira Khatoon, I (2001) DMC 387 Patna.

2 Noor Jehan vs. State of Maharshtra, I (1996) DMC 120 Bombay.
Procedure Code entitles even the illegitimate minor child to claim

maintenance, it is the bounden duty of the parents to maintain him or her
whether the marriage is subsisting or not, if he or she was born from the
wedlock or otherwise. The maintenance of the child being an imperative
factor, the Legislature while enacting the Act of 1986 making provision
for protection of rights of Muslim woman, has not taken away the right
of the minor children to claim maintenance even after divorce of the
former spouses. 1
Section 3(1)(b) of Act of 1986, provides that a divorced woman
shall be entitled after the divorce to get maintenance allowance for
children for a period of 2 years from the date of birth. It does not deal
with the right of the children to obtain maintenance from their father
upon the divorce of their mother. The Act has been enacted to protect the
rights of Muslim woman who have been divorced from their husbands
and to provide for matters connected therewith or incidental thereto. The
Act does not supersede the provisions of Section 125 Criminal Procedure
Code insofar as they relate to the grant of maintenance allowance to
the children. 2
The maintenance was awarded much earlier to the commencement
of Act 25 of 1986 because the right conferred on a divorced Muslim
women is not taken away by Act 25 of 1986. Further, it was held that as
per Section 3 of the Act, a divorced Muslim women is also entitled to
claim maintenance for the child for a period of two years, giving an
additional safeguard to her under Act 25 of 1986. But there is no
provision under the Act, taking away the right of the child to claim
maintenance under Section 125, Criminal Procedure Code. Therefore, the
child can claim maintenance under Section 125, Criminal Procedure
Code. Therefore, even the child can claim maintenance under the
guardianship against the father under Section 125, Criminal Procedure
Code. Therefore, it was held that the court below had erred in cancelling
the maintenance granted to the child. 3
The right of the child to claim maintenance, may be by applying
through a next friend or guardian of such child if a minor, is entirely
different from the right which is conferred under Section 3(1)(b) of the
Muslim Women Act on a Muslim wife herself. The right there under is
one which is conferred not on the child but on the wife or the mother of
the child. It provides for the benefit of the divorced wife that where she
1 Noor Jehan vs. State of Maharshtra, ibid.

2 Anwaar Ahmad vs. Sabida, I (1996) DMC 177 All.
3 M.A. Hameed vs. Arif Jan, I (1991) DMC 366 AP.
herself maintains the children born to her from the husband before or
after her divorce, a reasonable and fair provision by way of a
maintenance allowance to her has to be made and paid accordingly by
her former husband for a period of two years from the respective dates of
birth of such children. It is under Section 3 of the Act. 1
The child itself would have no locus-standi to apply. The amount
for the purpose of maintenance of the child would only be entitled to be
claimed by the divorced wife as such and in the mother’s own right.
Therefore, while under the provisions of Section 125 Code of Criminal
Procedure, it will be the right of the minor child herself to claim
maintenance against her father under Section 3 of the Muslim Women
Act as such the right to claim an amount of maintenance allowance as a
fair provision, from the husband is what is given to the divorced wife,
for the purpose of the maintenance of the child. That is, the right to
claim maintenance stands vested, under the Act of 1986 in the divorced
wife and not in the child itself, for whose sake the amount of
maintenance is claimed. That distinction is much too transparent to be
confused for advancing a contention that with the attainment of the age
of two years by the opponent child, her right granted under the
provisions of Section 125(1)(b) of the Code of Criminal Procedure to
claim maintenance from her father, cannot to said to have come to be
extinguished. It remains as much intact as it was, at the date of passing
of the order under Section 125(1)(b) as it would be at the date of her
attainment of full two years of age. The right would of course of
enforceable subject only to the duration which is provided under Section
125 of the Code of Criminal Procedure itself and cannot be sought to be
curbed on the strength of the provisions of the Muslim Women Act 1986.
therefore, it is no open to the petitioner-husband to contend that he
stands free of all liability and obligation under the order passed against
him and in favour of the child, under Section 125 of Code of Criminal
Procedure the moment the minor child, the daughter attains the age of
two years. 2
As far as the contention that under the Mohammedan Law, minor
children are entitled for maintenance only for a period of two years and
not thereafter is concerned the said question cannot be raised by the
petitioner who has no interest in the lis. If at all such question is to be
raised, the same could have been raised by the husband. The husband
1 Syed Mushtaque Ahmed vs. Tasneem Kausar, I (1991)

DMC 524 Bombay.
2 Syed Mushtaque Ahmed vs. Tasneem Kausar, I (1991) DMC 524
Bombay.
having agreed and consented to maintain the children till majority as is

reflected in the orders he cannot go back on his consent. The third party
does not have any right to nullify such consent and intervene in the
matter between husband, wife and children. The provision of the Family
Court is applicable to the family as defined in the said Act. However,
stretching the scope and ambit of the said provisions, the petitioner
cannot be included in the family concerned in the proceeding
for maintenance. 1
Section 125 is a part of criminal procedural law enacted with the
object of providing quick remedy in a summary way to a class of persons
who are unable to maintain themselves. In its application it makes no
distinction amongst the members of such class on the ground of caste,
creed, sex or religion. It extends its protective and beneficial arms to all
and sundry of that class. It is thus secular in character and knows no
religious barriers, particularly in the cases of maintenance of children
who are unable to maintain themselves. Religion of the persons, who are
liable and responsible to support them does not disturb the scheme
underlying this beneficial provision having social overtones and aiming
at preventing vagrancy immorality, crime and destitution in society.
Since minor’s right for maintenance springs from the very relationship of
the minor children with his parents, it is, under Muslim’s Personal Law,
his birth right and an absolute liability of the father. Under Hindu Law
the famous words of Manu, as cited in Mitakshara and referred to by
Mulla in Hindu Law sixteenth Edition page 549 that “that aged parents a
virtuous wife and an infant child must be maintained even by doing a
hundred misdeeds” show the depth and height of the moral obligation
cast on a Hindu father to maintain besides others, his minor children. 2
The moral obligation of a father to maintain his children who are
unable to maintain themselves has since been given statutory recognition
by certain Personal Laws like the Hindu Adoptions & Maintenance Act,
1956; Muslim Persona Law (Shariat) Act, 1937, the Muslim Women
(Protection of Right on Divorce) Act, 1986, Parsi Marriage and Divorce
Act, 1936. But neither the moral sanction provided by religion to minor’s
right for maintenance by his parents nor the statutory recognition of such
right by the Personal Law of the parents disturbs the scheme underlying
Section 125 in so far as minor’s right of maintenance is concerned. So
long as a minor child to unable to maintain himself (his inability on the
ground of minority is to be considered according to the provisions of the
1 Shamim Ahmad vs. Judge, Family Court, Azmgarh, 1999(1) HLR

40 All.
2 Wafatan (Smt.) vs. Jamil Ahmed, 1999(1) HLR 242 Rahasthan.
Indian Majority Act, 1875) he is legally entitled to claim maintenance

from his father who has sufficient means to maintain him. In the very
nature of his such right neither the law relating to the subsisting or
broken marital relationship of his mother with his father and her own
right of maintenance from her husband under such law nor the sanction
of religious morality behind such a right affects the absolute and birth
right of the minor for maintenance from his father under Section 125
The law relating to and governing the guardianship of the minor
child by either of the spouse during the period of his minority also
becomes irrelevant in the application of his right under Section 125
Criminal Procedure Code. Neither any prescription of any time or period
regarding the guardianship of his person by either of his parent as or
upto a particular age nor a dispute over his guardianship between his
father and mother or his mother with-holding his custody against the
willingness and readiness of his father to maintain him is to defeat his
independent and absolute right of being maintained by his father.
Incapable as he is to exercise free will and give free consent during the
period of his minority (his will and consent may be taken into
consideration to resolve the controversy over his guardianship and not to
grant or refuse to grant maintenance to him under Section 125 Criminal
Procedure Code the conduct of his mother of not allowing him to live
with his father cannot be a good ground to reject his right to maintenance
from his father. 2
In the above sense of the matter proof of negligence or refusal by
the father of the minor to maintain him will have no bearing upon his
right for maintenance under Section 125 Criminal Procedure Code. In
this respect the right of a minor for maintenance shall have necessarily
be considered at a footing different that of his mother. Whereas a wife
may disentitle herself to maintenance if she without any lawful excuse
refuses to live with her husband and, therefore, the husband cannot be
held guilty of neglected or refusing to maintain the wife, a minor is
legally incompetent to so refuse to join the company of his father. The
act and conduct of his mother of refusing to live with her husband or not
allowing the minor to go to his father cannot defeat minor’s right for
maintenance from his father. 3
1 Wafatan (Smt.) vs. Jamil Ahmed, ibid.

3 Wafatan (Smt.) vs. Jamil Ahmed, 1999(1) HLR 242 Rahasthan.
Question of legal entitlement to the custody of the minor or right

to his guardianship according to personal law can also not be considered
in the limited scope of the summary proceedings contemplated under
Section 125 Criminal Procedure Code. 1
The Lahore High Court 2, Madras High Court 3, Andhra Pradesh
High Court 4, Orissa High Court 5, Hyderabad High Court 6, Bombay High
Court 7, Nagpur High Court 8 and Rajasthan High Court 9 have expressed
similar view on this point.
There is no prohibition under the Muslim Personal and Muslim
Women (Protection of Rights on divorce), Act, 1986 that children who
are in the inherent on lawful custody of the divorced Muslim wife are not
entitled to claim any maintenance from their father. The provisions of
the Act, 1986 and the Muslim Personal Law were discussed in upholding
the order of the Magistrate by which maintenance to two children out of
which the daughter was about 12 years of age the son was about 10 years
of age was granted. 10
However, the moving of the application for custody alone will not
be a conclusive matter. It is only when the Court decided that the father
is entitled to get the custody of the children then the wife would become
disentitled to claim maintenance for her minor sons. 11
Right of divorced wife

The earlier view was that the payment of Mehar does not absolve
the husband from his liability to pay the maintenance. 12

2 Alla Rakhi vs. Karim Elahi, AIR 1933 Lah 969 and Akhtari Begum
vs. Abdul Rashid, AIR 1937 Lah 236
3 Muniammal vs. Venkatraman Cheri, AIR 1943 Madras 768;
Kuppkla Krishtapa vs. Preme Lilamani, AIR 1942 Madras 705 and
Mohiuddin Bi vs. Bash Saheb, AIR 1937 Madras 809
4 Chamala Padamma vs. C. Narsi Reddy
5 Sri Betela Barik vs. Padm
6 in Rahimunnissa vs Mohd. Ismail
7 Dinsab Karim Sab vs. Mohd. Hussain, AIR 1945 Bombay 390
8 State vs. Anwar Bi, AIR 1962 Pun 274
9 Mohd. Yusuf Khan vs. Mst. Zrina
10 (Sayed) Mehrab Ali vs. Shahid Ali, II (1992) DMC 83 Raj.
11 (Sayed) Mehrab Ali vs. Shahid Ali, ibid.
12 Bai Tahira vs. Ali Hussain Fissalli Chothia, 1979 CrLJ 151: AIR
1979 SC 362: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC)
616 See also Mohd. Ahmed Khan vs. Shah Bano Begum, 1985
Muslim law—Scheme of Act of 1986 495
But after enactment of Act of 1986, Muslim divorced wife cannot

apply for maintenance under the provisions of Chapter IX of Criminal
Procedure Code and it is only under Section 5 of the said Act that by
agreement husband and divorced wife can approach Magistrate under
Chapter IX, Cr.P.C. The entitle scheme of the said Act has been
examined by the Full Bench for coming to the said conclusion.
Therefore, from the date of talaq, the application for maintenance under
Section 125, Cr.P.C. would not be maintainable. 1
Scheme of Act of 1986

Application for maintenance by a divorced Muslim woman must
be initiated under Sub-section (2) of Section 3 of the Act of 1986 and the
only choice should be exercised in the manner so that the proceedings
should continue under Section 125 to 128 of the Criminal Procedure
Code. In this view of the matter, so far as divorced Muslim woman is
concerned, Section 125 of the Criminal Procedure Code would apply
only if both parties exercise their option at the first hearing of the
application under Sub-section (2) of Section 3 of the Act as contemplated
under Section 5 of the Act and not in any other manner. Consequently
the Magistrate cannot exercise his jurisdiction under Section 125,
Criminal Procedure Code in case of divorced Muslim woman, unless an
application is filed under Section 3(2) of the Muslim Women’s
(Protection of Rights on Divorce) Act, 1986 and parties exercise their
option as required under Section 5 of the said Act. 2
The properties referred to in Clauses (d) of Section 3(1) of the
Act cannot be construed as properties in its widest sense, as the revision
petitioner wants in this case. The words ‘property’ occurring in Clauses
(d) of Section 3(1) should be considered in a strict and restricted sense
than the wide amplitude given to the word in common parlance. If the
word ‘property’ in Section 3(1)(d) of the Act is interpreted so widely as
contended by the revision petitioner so as to embrace the vast properties
or the entire properties acquired by the former husband in the name of
his divorced wife during the subsistence of the marriage, it will
jeopardise the very intendment of providing reasonable and fair
provision by the former husband to his divorced wife. From the Quranic
injunction and the provisions of Section 3(1) of the Act referred to
above, it is patent that the idea behind the former husband providing
reasonable and fair provision at the time of divorce to his divorced wife
CrLJ 875: AIR 1985 SC 945: 1985 CrLR (SC) 327: 1985 SCC (Cr)
245: 1985 CAR 161: 1985 Jab LJ 489.
1 Wajed Khan vs. Mohasinabi, II (2001) DMC 116 Bombay.
2 Riswana Begum vs. MLV. Motiullah, II (1989) DMC 138 Orissa.
is to protect her from destitution and vagrancy due to the divorce.

Therefore, by a reasonable, pragmatic and harmonious interpretation of
the provisions of the Clauses (a) and (d) of Sub-section 3 of the Act, it is
clear that Clauses (d) deals with the properties given by the former
husband to the divorced wife during the subsistence of the marriage by
way of gift or otherwise. But Clauses (d) of Sub-section (1) of Section 3
does take in the entire or the major portion of the property acquired by
the husband during the subsistence of the marriage in the name of his
wife due to his own reasons for such acquisition without the intention to
give the property to the wife as her exclusive property. 1
The principles 2 after the enactment of Act of 1986 can culled
as under:
(i) A divorced Muslim woman is entitled to and can claim
maintenance only under the provision and in accordance
with the procedure provided under Section 3 and 4 of the
Muslim Women (Protection of Rights on Divorce) Act.
(ii) She is entitled to claim maintenance from her former
husband for and during the period of iddat and besides
that she is also entitled to claim dower amount agreed at
the time of marriage and other properties which were
given to her by her relatives and friends at the time of
marriage or thereafter.
(iii) In case a divorced woman is not re-married and is not able
to maintain herself after the expiry of iddat, she may bring
an action claiming maintenance and she may be entitled to
get maintenance in accordance with the procedure
provided under Section 4 of the said Act.
(iv) After the enactment of the aforesaid Act a divorced
woman is not entitled to bring an action for the said
remedy under Section 125 of the Code of Criminal
Procedure.” 3
Plain reading of Section 3 of the Act of 1986 makes it clear that
this section has overriding effect on other law including Section 125,
Criminal Procedure Code. It has been provided under Section 7 of the
Act that the pending applications filed under Section 125, Criminal
Procedure Code on the commencement of the Act shall be governed by
1 Majitha Beevi vs. Yakoob, II (1999) DMC 699 Kerala.

2 Bibi Shahnaz @ Munni vs. State of Bihar, 1999(1) HLR 137 Patna.
3 Bibi Shahnaz @ Munni vs. State of Bihar, 1999(1) HLR 137 Patna.
Muslim law—Second marriage by husband 497
the provisions of the Act. The applications filed by the Muslim wives, of
the Act under Section 125, Criminal Procedure Code the moment Talaq
is pronounced and her status changes she becomes of divorced woman,
the provisions of the Act would be applicable and the application would
not be prosecutable under Section 125, Criminal Procedure Code unless
both parties exercise their options under Section 5 of the Act and declare
in writing that they would prefer to be governed by the provisions of
Section 125 to 128 of the Criminal Procedure Code. 1
But a Muslim husband is liable to make reasonably and fair
provision for the future of the divorced wife which obviously includes
her maintenance as well. Such a reasonable and fair provision extending
period in terms of Section 3(1)(a) of the Act. 2 And the liability of
Muslim husband to his divorced wife arising under Section 3(1)(a) of the
Act to pay maintenance is not confined to iddat period. 3
Second marriage by husband

The Explanation to section 125 of Criminal Procedure Code, 1973
contemplates two kinds of matrimonial injury to a wife, viz., by the
husband either marrying again or taking a mistress. The Explanation
places a second wife and a mistress on the same footing and does not
make any differentiation between them on the basis of their status under
matrimonial law. If we ponder over the matter we can clearly visualise
the reason for a second wife and a mistress being treated alike. The
purpose of the Explanation is not to affect the rights of a Muslim
husband to take more than one wife or to denigrate in any manner the
legal and social status of a second wife to which she is entitled to as a
legally married wife, as compared to a mistress but to place on an equal
footing the matrimonial injury suffered by the first wife on account of
the husband marrying again or taking a mistress during the subsistence
of the marriage with her. From the point of view of the neglected wife,
for whose benefit the Explanation has been provided, it will make no
difference whether the woman intruding into her matrimonial life and
taking her place in the matrimonial bed is another wife permitted under
law to be married and not a mistress. The legal status of the woman to
whom a husband has transferred his affections cannot lessen her distress
or her feelings of neglect. In fact from one point of view the taking of
another wife portends a more permanent destruction of her matrimonial
1 Rafik Shah vs. Farida Bi, II (2000) DMC 115 MP.

3 Danial Latifi vs. Union of India, ibid.
life than the taking of a mistress by the husband. Be that as it may, can it
be said that a second wife would be more tolerant and sympathetic than a
mistress so as to persuade the wife to rejoin her husband and lead life
with him and his second wife in one and the same house. It will
undoubtedly lead to a strange situation if it were to be held that a wife
will be entitled to refuse to live with her husband if he has taken a
mistress but she cannot refuse likewise if he has married a second wife.
The Explanation has to be construed from the point of view of the injury
to the matrimonial rights of the wife and not with reference to the
husband’s right to marry again. The Explanation has, therefore, to be
seen in its full perspective and not disjunctively Otherwise it will lead to
discriminatory treatment between wives whose husbands have lawfully
married again and wives whose husbands have taken mistresses. 1
The Legislature being anxious that for the sake of maintenance,
the dependents should not resort to begging, stealing or cheating, etc.,
the liability to provide maintenance for children has been fixed on the
basis of the paternity of the father and the minority of the child and in
the case of major children on the basis of their physical handicap or
mental abnormality without reference to factors of legitimacy or
illegitimacy of the children and their being married or not. In the case of
wives, whether their ties of marriage subsist or not, the anxiety of the
Legislature is that they should not only not resort to begging, stealing or
cheating, etc., but they should also not feel compelled, for the sake of
maintaining themselves, to resort to an adulterous life or in the case of
divorced women, to resort to remarriage, if they have sentimental
attachment to their earlier marriage and feel morally bound to observe
their vows of fidelity to the persons whom they had married. This
position emerges when we take an overall view of sub-secs. (1), (4) and
(5). While sub-s. (4) provides that a wife shall not be entitled to receive
maintenance from her husband if she is living in adultery or if without
sufficient reason she refuses to live with her husband or if she lives
separately by mutual consent. sub-s. (5) provides that an order of
maintenance already passed can be cancelled for any of the abovesaid
reasons. Thus by reason of sub-ss. (4) and (5) a husband can avoid his
liability to pay maintenance if his wife is living in adultery.
Correspondingly a right has been conferred on the wife under the
Explanation to live separately and claim maintenance from the husband
if he breaks his vows of fidelity and marries another woman or takes a
1 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR
1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale
672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr
LJ 980
Muslim law—Second marriage by husband 499
mistress. As already stated it matters not whether the woman chosen by

the husband to replace the wife is a legally married wife or a mistress.
Therefore, the respondent’s contention that his taking another wife will
not entitle the appellant to claim separate residence and maintenance
cannot be sustained. The Explanation is of uniform application to all
wives including Muslim wives whose husbands have either married
another wife or taken a mistress. 1
The Explanation places a second wife and a mistress on the same
footing and does not make any differentiation between them on the basis
of their status under matrimonial law. If we ponder over the matter we
can clearly visualise the reason for a second wife and a mistress being
treated alike. The purpose of the Explanation is not to affect the rights of
a Muslim husband to take more than one wife or to denigrate in any
manner the legal and social status of a second wife to which she is
entitled to as a legally married wife, as compared to a mistress but to
place on an equal footing the matrimonial injury suffered by the first
wife on account of the husband marrying against or taking a mistress
during the subsistence of the marriage with her. From the point of view
of the neglected wife, for whose benefit the Explanation has been
provided, it will make no difference whether the woman intruding into
her matrimonial life and taking her place in the matrimonial bed is
another wife permitted under law to be married and not a mistress. The
legal status of the woman to whom a husband has transferred his
affections cannot lessen her distress or her feelings of neglect. In fact
from one point of view the taking of another wife portends a more
permanent destruction of her matrimonial life than the taking of a
mistress by the husband. 2
However, can it be said that a second wife would be more tolerant
and sympathetic than a mistress so as to persuade the wife to rejoin her
husband and lead life with him and his second wife in one and the same
house. It will undoubtedly lead to a strange situation if it were to be held
that a wife will be entitled to refuse to live with her husband if he has
taken a mistress but she cannot refuse likewise if he has married a
second wife. The Explanation has to be construed from the point of view
1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale
672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr
LJ 980
1987 SC 1103: 1987(2) SCC 285: 1987(2) SCR 773: 1987(1) Scale
672: 1987(2) JT 55: 1987 Ker LT 747: 1987 (1) DMC 506: 1987 Cr
LJ 980
of the injury to the matrimonial rights of the wife and not with reference
to the husband’s right to marry again. The Explanation has, therefore, to
be seen in its full perspective and not disjunctively. Otherwise it will
lead to discriminatory treatment between wives whose husbands have
lawfully married again and wives whose husbands have taken mistresses.
Approaching the matter from this angle, we need not resort to a
comparison of Muslim wives with Hindu wives or Christian wives but
can restrict the comparison to Muslim wives themselves who stand
affected under one or the other of the two contingencies envisaged in the
Explanation and notice the discrimination. A right has been conferred on
the wife under the Explanation to live separately and claim maintenance
from the husband if he breaks his vows of fidelity and marries another
woman or takes a mistress. As already stated it matters not whether the
woman chosen by the husband to replace the wife is a legally married
wife or a mistress. Therefore, the respondent’s contention that his taking
another wife will not entitle the appellant to claim separate residence and
maintenance cannot be sustained. The Explanation is of uniform
application to all wives including Muslim wives whose husbands have
either married another wife or taken a mistress. 1
Talaq without any cause

The husband is permitted to give talaq to his wife with or without
any cause. It is true that talaq is disapproved but it is not forbidden. The
institution of a divorce may be disliked and detested it but legally
divorce is provided or permitted in many of the Mohammedan laws. 2
Territorial jurisdiction
To constitute “residence” it is not necessary that the divorced
woman should have her own residence within the territorial limits of the
Court. So long as there is animus manendi or an intention to stay for an
indefinite period at a place, that place should be treated as the
“residence”. In this case, according to the divorced woman, she has taken
shelter under her maternal relatives at the Nadapuram and she intends to
reside there permanently, unlike a casual stay or a flying visit or a mere
casual residence with no intention of remaining there. In order to
constitute “residence”, the intention of the person is of utmost
importance. If the intention is to make the place that persons permanent
abode or residence, then it will constitute “residence” as contemplated by
the 1986 Act. The question as to whether the divorced woman has chosen
1 Begum Subanu ibid.

2 Banu vs. Kutubuddin Sulemanji Vimanwala, 1995 (2) DMC 390
Bom.
Muslim law—Triple pronouncement of talaq 501
to make a particular place her abode is to be gathered from the

circumstances of the case. 1
Triple pronouncement of talaq

In one case it was the assertion of wife that on a particular day
when talaq was given, she was in her menstruation. It was held that it
cannot be accepted because she had stated it for the first time the first
time in her evidence when her statement was recorded in 1988 about 5
years after the date of talaq. No such plea is taken in the plaint. This was
a question of fact, which should have been pleaded and proved. Merely
saying that the talaq is void is not sufficient. Question of fact namely,
that the talaq was void on the ground that the wife was in her menses on
the date of talaq should have been pleaded in the plaint which is not
done. It was in evidence that the wife left the house of the husband on
6.11.1982. It was also admitted by the wife that ever since 6.11.1982 till
she gave evidence in 1988, there was no cohabitation between her and
her husband. They had not lived together after 6.11.1982 till the date of
decision, talaq was given on 15.7.1984 which means there was a gap of
about one year and eight months after the wife left the house and the date
of talaq, when admittedly both parties were residing separately and at
different places. In the very nature of things, the fact that wife is in her
menstruation or not is within the special and personal knowledge of the
wife herself. Nobody else can show whether the wife is in her menses
unless she herself announces. When admittedly the husband is staying
separately and away from wife for about one year and eight months, it
can not be expected that the husband should know that on 15.7.1984, the
wife was in menstruation or not. It is impossible for the husband to know
that fact. It may be that in usual course in the talaqnama against the
relevant column it is mentioned that the plaintiff was in purity. By any
stretch of imagination it cannot be expected that a husband should know
whether the wife was in menstruation or not particularly when she is
staying away from him. Now, in such a situation, it can not be insisted
that this condition say that the talaq is void on the ground that the
husband has not proved that the wife was in her periods on the date of
talaq. It is an impossible condition for the husband since the wife and
wife alone can know whether she is in her menstruation period or not.
That is why the Text on Muslim law have provided exception to this rule.
It was held that even in the Compendium of Fatimid Law on which the
wife heavily depended, there is a provision in paragraph 212 that a
divorce can be given which takes effect immediately under five
circumstances of which one is a woman whose husband has been absent
1 Avaran Koya vs. Mariyam, 1994 (1) DMC 205 (DB) Ker
for a long time. Since there is a provision enabling the husband to give
talaq whose wife is living separately for a long time, the inference is that
court cannot insist this condition of the purity, on the date of talaq. 1
Validity of Act of 1986

A Muslim husband is liable to make reasonably and fair provision
for the future of the divorced wife which obviously includes her
maintenance as well. Such a reasonable and fair provision extending
period in terms of Section 3(1)(a) of the Act. 2 Therefore on the basis of
this interpretation it was held that the provisions of the Act do not offend
Articles 14, 15 and 21 of the Constitution of India. 3
1 Banu vs. Kutubuddin Sulemanji Vimanwala, 1995 (2) DMC 390

Bom
3 Danial Latifi vs. Union of India, ibid.
Practice & Procedure—Validity of Act of 1986 503
Chapter 12
Practice & Procedure
SYNOPSIS
Introduction....................................504 Exercise of writ jurisdiction .......... 542
Abuse of process ............................504 Ex-parte order ............................... 543
Adjustment of orders ......................505 Finding of civil court ..................... 543
Agreement or compromise .............505 Forum of Appeal ............................ 543
Alternate forums.............................506 Hearing the parties ........................ 544
Amendment of law ..........................511 Ingredients of desertion ................. 545
Amendment of petition ...................512 Inherent powers ............................. 546
Appeal ............................................513 Jurisdiction of criminal Courts ..... 546
Appeal under Hindu Marriage Legal Aid ....................................... 547
Act ..................................................514 Lien on property ............................ 547
Application of Civil Procedure Limitation for minors..................... 547
Code ...............................................520 Maintenance by agreement............ 548
Appreciation of affidavits ...............520 Modification of order .................... 548
Appreciation of evidence................521 Necessary parties .......................... 550
Burden of proof ..............................521 Neglect & refusal........................... 550
Cancellation of order .....................522 Object of summary remedy ............ 551
Challenge to consent decree ..........522 Omission to reply the notice .......... 552
Change in circumstances ...............522 Pleading......................................... 553
Condonation of delay .....................523 Pleading and libel ......................... 554
Consent order.................................523 Pleadings and proof ...................... 554
Counter claim.................................524 Precedent ....................................... 555
Creation of charge .........................524 Presumption of litigation ............... 555
Cross Examination .........................525 Presumption of marriage............... 555
Date from which amount to be Proof of marriage .......................... 556
awarded .........................................525 Proof of no income ........................ 560
Delay & laches...............................529 Proper witness ............................... 560
Determination of paternity .............530 Quashing ....................................... 561
Directions for blood test ................533 Relief in void marriage .................. 562
Dismissal in default........................537 Remedy of suit ............................... 562
Divorced wife .................................538 Resjudicata .................................... 563
Double payment .............................538 Revision ......................................... 565
Efforts for re-union ........................539 Revision & reconciliation .............. 566
Enhancement ..................................539 Revisional jurisdiction ................... 567
Ex parte order ................................539 Settlement ...................................... 568
Successive petitions........................569 Transfer of proceedings................. 571

Territorial Jurisdiction ..................569 Verification of affidavit ................. 573
Introduction
In addition to the substantive laws, the procedures devised to
impart justice is also of much importance. The courts frequently make
various interpretations in regard to different procedural laws and also
adopts certain practices to ensure that the substantive justice is done to
the parties. This chapter deals with such decisions of the courts which
lay down the procedures in the matter of seeking the maintenance or
defending the same.
Abuse of process
A party may have various alternative remedies if they are pursued
simultaneously but it cannot be said that by itself, the said action would
amount to abuse of the process of the court. It is necessary to note at this
stage that the scope of proceedings under Section 24 of the Hindu
Marriage Act is entirely different from the scope of proceedings under
Section 125 of the Code. Therefore it is not possible to agree with the
broad submission of that once the wife had applied in the court for
interim alimony under Section 24 of the said Act, she could not have
filed proceedings under Section 125 of the Code. 1
In one case it was held that the petitioner/husband appeared to
have utter disregard for the orders passed by the Court. It is also quite
evident from the multiplicity of the proceedings to which he had resorted
to, that by hook or crook, he wants to avoid making payment of
maintenance to his wife and daughter. The Session Judge, in all his three
judgements, had given a graphic account of all the events and had
narrated the chronology of event so also, the abuse of the process of law,
to which the petitioner has resorted to. It was found that the prayer made
by the petitioner in the criminal application for custody of his daughter,
was never made in the lower Court. This prayer was made for the first
time in the High Court. Considering the callous nature of the petitioner,
his utter disregard to comply with the orders passed by the Courts, his
hide and seek with the orders, his reluctance to comply with them, it was
held that the possibility cannot be ruled out that this prayer has come for
the first time, only to avoid the payment of maintenance to the daughter.
It was also held that it did not appear to have been made because of any
1 Ramesh Chandra Shambubhai Yadav vs. Dhiraj Gavri, I (1983)

DMC 10 Delhi; Sudershan Kumar vs. Deepak @ Reena Khurana, I
(1983) DMC 337 P&H.
Practice & Procedure—Agreement or compromise 505
fatherly love for the child. In these circumstances the Writ Petition
alongwith Criminal Application were both dismissed the cost of
Rs. 10,000/- (Rupees ten thousand). The cost was directed to be paid by
the petitioner to his wife and daughter, within two months from today.
The husband/father was also directed to pay the entire permissible
amount of arrears of maintenance within two months from today and
thereafter, to pay the maintenance amount regularly to his wife
and daughter. 1
Adjustment of orders
The amount of maintenance payable by the husband under Section
125 Cr.P.C. is always subject to adjustment in the amount of
maintenance awarded by the Civil Court either finally or by way of
maintenance pendente lite and therefore, it was directed that the amount
of Rs. 300/- per month which the applicant/husband was paying to the
wife under the orders of the Criminal Court shall be adjusted in the
maintenance awarded to the wife by the Civil Court in the proceedings
under Section 24 C.P.C. 2
Agreement or compromise
When the statutory obligation is husband/father to maintain his
wife and minor son who are unable to maintain themselves he cannot be
permitted to contract out of such an obligation. If he is allowed to do so,
it would certainly defeat a legal right recognized by the Court under
Section 125 of the Criminal Procedure Code. The agreement propounded
by him cannot annihilate the statutory right of claiming maintenance
under Section 125 Criminal Procedure Code. The agreement is certainly
opposed to public policy. Obviously the Court cannot enforce in illegal
agreement. A waiver in derogation of a statutory right cannot be
recognized by the Court as it affects Public Policy and as it is against the
very statutory obligation imposed on a husband to maintain his wife and
children who are unable to maintain themselves. 3
An order for maintenance made against a person would operate
until it is vacated or altered in terms of the provisions of the Code itself.
Section 125(4) provides that no wife shall be entitled to receive an
allowance from her husband under the 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. Sub-section (5) enables
1 Ansari Mohd. Riyaz Abdul Latif vs. State of Maharashtra,

2 Rangnath vs. Indira, I (1996) DMC 462 Bombay.
3 Haroon vs. Sainabha, II (1992) DMC 293 Ker.
the Magistrate to cancel the order of maintenance on proof that any wife
in whose favour an order has been made is living in adultery or that
without sufficient reason she refuses to live with her husband. Section
127 provides for certain contingencies whereby the Court can cancel the
order of maintenance. As the original order of maintenance has not been
modified or cancelled by a higher Court or is varied or vacated in terms
of Section 125 (4) or (5) of Section 127, its validity cannot be questioned
on the strength of the agreement; entered into between the petitioner and
the first respondent. 1
Alternate forums
Merely because of the order of maintenance granted by the
Magistrate in favour of the second defendant, plaintiff’s suit for
declaration cannot be dismissed. The order passed in the application filed
under Section 125 Criminal Procedure Code is really a summary order
which does not finally determine the rights of the parties as the order
was made in a proceedings under the Code of Criminal Procedure which
has been enacted to provide a summary remedy for providing
maintenance and for preventing vagrancy. The decision of the Criminal
Court granting maintenance or refusing to grant maintenance cannot
certainly operate as decisive in any civil proceeding between the parties
for determining the issues involved in the civil suit. In such a position
the civil Court has to decide it on the evidence before it uninfluenced by
the decision in the maintenance case. 2
As the proceedings under Section 125 Criminal Procedure Code
are of a summary nature and are intended to enable destitute wives and
children, the latter whether they are legitimate or illegitimate, to get
maintenance in a speedy manner the decision of the Magistrate cannot be
considered as the sole basis to the throw out a properly instituted civil
suit by the aggrieved party to the maintenance application. 3
The scope of Section 125, Criminal Procedure Code as well as
Section 24 of the Hindu Marriage Act stand on different footing. It is
true that the maintenance granted under the Hindu Marriage Act can be
adjusted out of the amount granted under Section 125, Criminal
Procedure Code. When the wife is granted interim alimony both under
Section 24 of the Hindu Marriage Act and under Section 125, Criminal
Procedure Code, in that event, the maintenance amount granted under
Section 125, Criminal Procedure Code is to be adjusted again the amount
1 Haroon vs. Sainabha, II (1992) DMC 293 Ker.

2 Sivanandan vs. Thankamma, I (1995) DMC 625 Kerala.
3 Sivanandan vs. Thankamma, ibid.
Practice & Procedure—Alternate forums 507
awarded in matrimonial proceeding. It was found that not a single

farthing had been paid to the petitioner in terms of the decree passed by
the Civil Court. In that view of the matter it was held that a wife though
divorced one, is still entitled to the maintenance in terms of Section 125,
The husband was directed to pay, under Section 125 of the Code
of Criminal Procedure, maintenance to the wife and the child of the
marriage in the sums of Rs. 300/- and Rs. 400/- respectively. Thereafter,
by the order, the Civil Court directed the husband to pay maintenance,
under Section 24 of the Hindu Marriage Act, in the sums of Rs. 1,000/-
and Rs. 800/- respectively. Therefore, the order of the High Court was
modified to the extent that the husband will only be liable to pay
maintenance to the wife and the child in the sums of Rs. 1,000/- and
Rs. 800/- respectively. 2
When by the Court intervention under the Hindu Marriage Act,
affection or disruption to the marital status has come by, at that juncture,
while passing the decree, it undoubtedly has the power to grant
permanent alimony or maintenance, if that power is invoked at that time.
It also retains the power subsequently to be invoked on application by a
party entitled to relief. And such order, in all events, remain within the
jurisdiction of that Court, to be altered or modified is future situations
may warrant. In contract without affection or disruption of the marital
status, a Hindu wife sustaining that she can live in separation from her
husband, and whether she is living in that state or not, her claim to
maintenance stands preserved in codification under Section 18(1) of the
Hindu Adoptions & Maintenance Act. The Court in not at liberty to grant
relief of maintenance simplicitor obtainable under one Act in
proceedings under the other. Both the statutes are codified as such and
are clear on their subjects and by liberality on interpretation interchange
ability cannot be permitted so as to destroy the distinction on the subject
of maintenance. 3
These two enactments keeping apart, the remaining two i.e.,
Hindu Succession Act, 1956 and Hindu Minority & Guardianship Act,
1956 are a package of enactments, being part of one socio-legal scheme
applicable to Hindus. When distinctive claims are covered distinctly
under two different statutes and agitable in the Court conceived of there
under, it is difficult to sustain the plea that when a claim is otherwise
1 Sandya Kumari vs. State of Bihar, I (2001) DMC 6 Pantna .

2 Sanjay Chopra vs. Shyama Chopra, I (2001) DMC 510 SC.
3 Chand Dhawan vs. Jawaharlal Dhawan, II (1993) DMC 110 SC.
valid, choosing of one Forum or the other should be of no consequence.

These are not mere procedural technicalities or irregularities, as termed
by one line of reasoning by some of the High Courts. These are matters
which go to the root of the jurisdiction. The matrimonial Court, a Court
of special jurisdiction, is not meant to pronounce upon a claim of
maintenance without having to go into the exercise of passing a decree,
which implies that unless it goes onwards, moves or leads through, to
affect or disrupt the marital status between the parties. By rejecting a
claim, the Matrimonial Court does make an appealable decree in term of
Section 28, but neither disrupts the marriages. It certainly does not pass a
decree in terms of Section 25 for its decision has not moved or done
anything towards, or led through, to disturb the marriage, or to confer or
take away any legal character or status. Like a Surgeon, the Matrimonial
Court, if operating, assumes the obligation of the post operatives, and
when not, leaves the patient to the physician. 1
Even pending the application made by the husband under Order 9,
Rule 4 of the Code of Civil Procedure, the wife can initiate proceedings
under Section 24 of the Hindu Marriage Act. It should be borne in mind
that, in general the husbands is bound to defray the wife’s costs of the
proceedings under the Act and to provide her with the maintenance and
support pending disposal of the proceeding. Having regard to the object
that is sought to be achieved by making provision for awarding
maintenance pendente lite and for making provisions for payment of
expenses of proceedings, the expression “proceeding under the Act:”
appearing in Section 24 cannot be given a narrow and
restrictive meaning. 2
In the case of Ramesh Dev Anand v. Smt. Devinder Kaur,
reported in 3 it has been clearly held as under:
“In the view that proceedings under Order 9, Rule 9 of the Code
for restoration are proceedings under the Act, it can safely he
held that proceedings for setting aside the exparte decree are also
proceedings under the Act”.
A reference may also usefully be made in this behalf to the
provisions of Section 21 of the Hindu Marriage Act which states the
subject to other provisions contained in this Act, and to such rules as the
High Court may make in this behalf all proceedings under this Act, shall
1 Chand Dhawan vs. Jawaharlal Dhawan, II (1993) DMC 110 SC.

2 Vinod Kumar Kehriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32
69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bom 160.
3 AIR 1985 Delhi 40.
Practice & Procedure—Alternate forums 509
be regulated, as far as may be by the Code of Civil Procedure, 1908. The

Punjab and Haryana High Court had also an occasion to consider a
somewhat similar question 1 Though the question which directly arose
there was one of granting relief to the wife under Section 24 pending an
application under Order 9, Rule 13 for setting to aside the exparte
decree, referring to the object and the rationale of the provisions of
Section 24 of the Act, it was held that to obviate against the financial
handicap of a party to the litigation, the provisions of Section 24 of the
Act can be invoked even during the pendency of the application under
Order 9, Rule 13 of the Code of Civil Procedure.
Thus having regard to the object of Section 24 of the Hindu

Marriage Act, and having regards to the ratio of the other cases 2 it was
held that the provisions of Section 24 can be invoked by the spouse even
during the pendency of an application under Order 9, Rule 4 of the Code
of Civil Procedure. In the facts of this case, therefore, the wife is entitled
to initiate proceedings under Section 24 of the Act even during the
pendency of the husband’s application for restoration of his petition
which was dismissed. 3
There is no provision in the Hindu Adoptions and Maintenance

Act for granting maintenance pendente lite and expenses of proceedings
as provided for in Section 24 of the Hindu Marriage Act, 1955. Hence, It
was held that there is nothing in the scheme of the provisions of Section
24 of the Hindu Marriage Act which is inconsistent with the provisions
of the Hindu Adoptions & Maintenance Act so as to attract the bar of
Clauses (b) of Section 4 of the Hindu Adoptions & Maintenance Act.
Undoubtedly, if there were to be any other law in force immediately
before the commencement of the Hindu Adoptions & Maintenance Act,
1956, it would cease to apply to Hindus in so far as it is inconsistent
with any of the provisions contained in the Hindu Adoption and
Maintenance Act. However, it was held that there was no inconsistency
between the provisions of Section 24 of the Hindu Marriage Act and the
provision of Section 18 of the Hindu Adoptions & Maintenance Act,
1 Madan Lal vs. Meena, AIR 1988 P&H 31.

2 viz., the decision of the Court reported in DMC page 74, AIR 1985
Delhi 40, and AIR 1988 P&H 31 ibid
3 Vinod Kumar Kejriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32
therefore, the argument based on the provisions of Clause (b) of Section

4 of the Hindu Adoptions & Maintenance Act has no force. 1
It was held that court below rightly held that having regard to the
wild and baseless allegations made by the husband in his Petition for
divorce filed in the Court, the wife could be justified in entertaining an
apprehension, that it would be dangerous for her live with the husband.
The court also relied upon the decision of the Division Bench. 2 It was
also held that, in view of the decision of the Court in Smt. Gangu
Pundlik Waghmare vs. Pundlik Maroti Waghmare, 3 it would not be
permissible to refuse to award maintenance pendente lite and the
expenses of the proceedings to the wife merely because there are wild
and baseless allegations made by the husband against the wife. It was
more so when the husband did not even want to prosecute his Petition for
divorce, meaning thereby that he did not even want to justify or prove
the allegation made by him in the Petition for divorce. 4
A party may have various alternative remedies if they are pursued
simultaneously but it cannot be said that by itself, the said action would
amount to abuse of the process of the court. It is necessary to note at this
stage that the scope of proceedings under Section 24 of the Hindu
Marriage Act is entirely different from the scope of proceedings under
Section 125 of the Code. In the proceedings under the said Act, either
spouse has a right to apply to the matrimonial court; while under Section
125 of the Code, only wife or concerned destitute parents or legitimate or
illegitimate minor child whether married or not and unable to maintain
itself, through his or her guardian can apply for maintenance. The nature
of the respective cases which are required to be pleaded and proved in
both these proceedings would also differ. Under Section 24 of the Hindu
Marriage Act, the concerned spouse has only to show that he or she has
no independent source of income sufficient for his or her maintenance.
Once this is established, interim alimony amount has to follow, keeping
in mind the economic condition of respective spouses. While in Section
125 proceeding under the Code, only because the wife alleges that she
has no independent source of income, her application cannot be
automatically granted. She has to further prove that her husband having
sufficient means has neglected or refused to maintain her. Order of
1 Vinod Kumar Kejriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32

2 A vs. B, 80 Bom LR 384
3 AIR 1979 Bombay 264.
4 Vinod Kumar Kejriwal vs. Usha Vinod Kejriwal, ibid.
Practice & Procedure—Amendment of law 511
interim alimony under Section 24 of the Hindu Marriage Act is an

interim order during the pendency of main proceedings while order under
Section 125 of the Code is a final order. Under these circumstances, it is
not possible to agree with the broad submission of that once the wife had
applied in the court for interim alimony under Section 24 of the said Act,
she could not have filed proceedings under Section 125 of the Code. 1
There can be absolutely no justification whatever for declining to
countenance the claim of the petitioner for maintenance on the ground of
the prior proceedings under Section 125, Cr.P.C. It may also be pointed
out that in proceedings under Section 125, Cr.P.C. the power of the
Magistrate is limited to an award of monthly maintenance not exceeding
Rs. 500/- in the whole, and under Section 127 (2) and (4) Cr.P.C.
provision is made for the cancellation or variation of the magisterial
order, as a consequence of a decision of a competent civil Court and for
the civil Court to take into account the amount paid to recovered by a
person, pursuant to an order under Section 125 Cr.P.C. The aforesaid
provisions do not in any manner impinge upon the specific statutory
right conferred under Section 24 of the Hindu Marriage Act, upon the
parties to a proceeding under the provisions of that Act. It would,
therefore, follow that the prior proceedings under Section 125, Cr.P.C.,
cannot be put against the petitioner, as a ground for declining to
entertain her claim, for maintenance in enforcement of her statutory right
under Section 24 of the Hindu Marriage Act. 2
Amendment of law
In the State of M.P. the provision of section 125 of Criminal
Procedure Code, 1973 was amended and the question whether the
benefit of amendment should be given to the pending applications, it was
answered in affirmative.
If the new law speaks a language which expressly or by clear
intendment, takes in even pending matters the Court of trial as well as
the Court of Appeal must have regard to an intention so expressed and
the Court of Appeal may give effect to such a law even after the
judgment of first instance. The distinction between laws affecting
procedure and those affecting vested right does not matter when the
Court is invited by law to take away from a successful plaintiff, what he
obtained under a judgment. In this case both the Court below after the
1 Ramesh Chandra Shambubhai Yadav vs. Dhiraj Gavri, I (1983)

DMC 10 Delhi; Sudershan Kumar vs. Deepak @ Reena Khurana, I
(1983) DMC 337 P&H.
2 Vanaja vs. Gopu, I (1992) DMC 347 Mad.
amendment gave the effect and directed to pay the amount of Rs. 1,000/-
as a maintenance. 1
In the light of the Statement of Object and Reasons the
amendment should be applicable on the pending proceedings and in the
case where the orders are passed after 30 th May, 1998 the Magistrate has
powers to enhance the amount of maintenance from Rs. 500/- upto
Rs. 3,000/-. The language used in the Statement of Object and Reasons
clearly intends that this amendments is applicable on the pending
proceedings. The reason, since the existing amount of maintenance
allowance has become insufficient in the present day circumstances and
the amendment further says that in view of the above it has been decided
to amend Section 125 of the Code of Criminal Procedure, 1973.
Therefore, from the plain reading of Statement of Object and Reasons it
is clear that intention of the legislature is to consider the present day
circumstances in which the amount of maintenance allowance of
Rs. 500/- has become insufficient and to prove benefit to the destitutes
and when the Legislature wants to take into consideration the present day
circumstances, it would clearly mean that the amendment shall be
applicable though prospectively with effect from 30 th May, 1998 when it
was first published in the Madhya Pradesh Gazette (Extraordinary) but
would amount to be applicable on the present day pending proceedings.
The intention of the Madhya Pradesh Legislature is very clear to provide
benefit to the members of the weaker section of the society like wife,
children or the old parents who are not having any source of income and
are unable to maintain themselves. Having regard to this social object the
amended provisions have to be given a liberal construction to fulfil and
achieve this intention of the Legislature, because dominant purpose
behind the benevolent provisions is that the wife, child and parents
should not be left in helpless state of distress, destination and starvation.
Therefore, looking to the intention spelt out by the Statement of Object
and Reasons, this Court is of the view that the amendment is applicable
to the pending proceedings and the Magistrate have power to enhance the
amount of maintenance in the cases in which the orders are passed after
30 th May, 1998. 2
Amendment of petition
The provisions of Section 125 to 128 of the Code of Criminal
Procedure constitute complete Code in itself. These provisions deal with
adjudication as regards the liability to pay maintenance to the neglected
wife and child, etc., the execution of the order and the mode of its
1 Ramfool vs. Jagarati, I (2001) DMC 125 MP.

2 Ramfool vs. Jagarati, ibid.
Practice & Procedure—Appeal 513
execution. Ordinarily, the right to claim maintenance under Section 125,

Criminal Procedure Code of the Code fructifies on the date of the filing
of the petition as the scheme of the provisions embodied in the said
section is only intended for the enforcement of a duty a default in which
may lead to vagrancy. It is not always that the Court has to grant
maintenance from the date under Sub-section (2) to Section 125 of the
Code, the Court has discretion in the matter as to from which date
maintenance under Section 125 of the Code should be granted. The Court
can award maintenance under Section 125 of the Code either from the
date of application of from the date of order taking into consideration
conduct of the parties in the proceedings, averments made in the
application and the reply thereto, hardship that may be caused to husband
and the like. 1
In this case, the learned Magistrate exercised the discretion under
Sub-section (2) of Section 125 of the Code by awarding maintenance to
the petitioners from the date of the petition. However the learned
Additional Session Judge modified the order of the learned Magistrate by
directing payment of maintenance from the date when the amended
petition under Section 125 of the Code was brought on record. It was
held that ‘It appears that the petition under Section 125 of the Code was
allowed to be amended into one based on the original cause of action.
That being so, the amendment would relate back to the date of the
presentation of the original petition. The fact that the petition was
amended by the petitioner cannot be a ground for rejecting the claim of
maintenance from the date of the petition.’ 2
Appeal
A bare reading of sub-Section (1) of Section 19 of the Family
Court Act, 1984 shows that no appeal lies against an interlocutory order
passed by a Family Court. Therefore when the interim order had been
passed for monthly maintenance till the final decision of the appeal, the
appeal was therefore, held to be liable to be dismissed on this
ground itself. 3
Section 19 of the Family Courts Act has undergone change by
virtue of the Family Courts (Amendment) Act, 1991 (Central Act No. 59
of 1991) and the said amendment has come into force on 28.12.1991. But
the said amendment does not in any way alter the sub-Section (1) of
Section 19 of the said Act. The said sub-Section (1) while providing that
1 Sneh Lata vs. Ajay Kumar Khanna, II (1999) DMC 451 Delhi.
2 Sneh Lata vs. Ajay Kumar Khanna, ibid.
3 Madulal vs. Sarojini Devi, II (1992) DMC 400 Raj.
an appeal shall lie from every judgment or order of a Family Court to

High Court says that such an appeal does not lie if the order in question
is an interlocutory order. The order directing the husband to pay
Rs. 500/- per month to the respondent wife as interim maintenance
pendente lite under the abovesaid Section 24 of the Hindu Marriage Act
is certainly and interlocutory order so an appeal under Section 19(1) will
not lie against the said order. 1
There is also no other provision under the Family Court Act
providing for a revision against such interim orders. In fact the old
Section 19(4) which is same as the present Section 19(5) after the above
said amendment, provides that, except as aforesaid no appeal or revision
shall lie to any Court from any judgment, order or decree of Family
Court. So even Section 115 Criminal Procedure Code will not apply.
Hence a revision will not lie (though before coming into force of the
Family Courts Act, a revision may lie) after the amendment of Section
28 of the Hindu Marriage Act of 1976. 2
Appeal under Hindu Marriage Act

The Hindu Marriage Act is a self-contained enactment
introducing many changes with regard to the rights and liabilities of
marriage made according to Hindu Law. It is unthinkable that in such a
self-contained Act, whereas rights are conferred under the Act, the
remedies should be left to be searched in some other law. 3
The word “under any law for the time being in force” occurring
the section, indicate that the right of appeal in dependent on some other
law and that the section, itself, does not confer any such right does not
appear to be sound. The words, referred to, only mean, that the forum
for, and the procedure for the disposal of, appeals, filed under the Act
will be determined, under the law, for the time being in force, on the
subject. In the case of Himachal Pradesh, these laws will be the
Himachal Pradesh (Courts) order, 1948 and the Code of Civil Procedure. 4
The question, whether an order, passed, under Section 24 of the
Act, is appealable, was discussed, in detail in Smt. Sobhana Sen v. Amar
Kanta Sen, 5 and it was held that such an order is appealable. The same
view was taken in Rukhmanibhai v. Kishanlal Ramlal, 6 was followed in
1 N. Balasubramanian vs. V. Chitra, II (1992) DMC 423 Mad.

2 N. Balasubramanian vs. V. Chitra, ibid.
3 Suresh Prasad vs. Manorama Debi, AIR 1973 Patna 321 (DB).
4 Shushila Devi vs. Dhani Ram, AIR 1965 HP 12.
5 AIR 1959 Cal 455.
6 AIR 1959 MP 187: AIR 1959 Cal 455.
Practice & Procedure—Appeal under Hindu Marriage Act 515
Harilal Purshottam v. Lilavati Gokaldas, 1 Dr. Tarlochan Singh v. Smt.

Mohinder Kaur, 2 Sunder Singh v. Smt. Manna Sunder Singh, 3 D.S.
Seshadri v. Jayalakshmi, 4 and Smt. Snehalata Dansena v. Jagdish
Dansana. 5 A contrary view that an appeal against an order, passed under
Section 24 of the Act, does not lie, was taken Prithyirajsinghji
Mansinghji v. Bai Shivprabhakumari, 6 Saraswathi v. Krishna Murthy, 7
and Gopendra Nath v. Smt. Prative Rani. 8 The preponderance of judicial
opinion is in favour of the view that an appeal lies, against an order,
passed under Section 24 of the Act. 9
It is but fundamental that when two interpretations are possible
that which better effectuates the intention of the Legislature would be
adopted. The question is whether the clause “may be appealed from
under any law for the time being in force” should mean in the context
that the appeals may be preferred and prosecuted in accordance with the
relevant provisions of law for the time being in force. That turns on the
intention of the Legislature as apparent from the Statute. We have
already stated that the Statute is the will of the legislature which is to be
expounded according to its intent. We have earlier pointed out that at the
time of drafting Section 28 the language of Section 55 of the Indian
Divorce Act was before the draftsman or Legislature as a model. The
meaning of that language was well established by judicial interpretation
which was uniform. It must necessarily follow that the Legislature
intended to give the same meaning to the expression deliberately
employed in the Act. The clause “May he appealed from under any law
for the time being in force” must have been intended to mean that the
right of appeal conferred by the provision has to be enforced in
accordance with the law regulating procedure, forum and other allied
matters. The intention of the Legislature to confer substantive right of
appeal under this section itself is even otherwise obvious from the state.
The avowed purpose of Section 28 from its very heading was to provide
for the enforcement of the orders and decrees passed and also give a
right of appeal. Most of the remedies provided under this Act by way of
making application were unknown to Hindu Law before the advent of the
1 AIR 1961 Guj 202.

2 AIR 1961 Punj 508.
3 AIR 1962 Punj 127.
4 AIR 1963 Mad 283.
6 AIR 1960 Bom 315.
7 AIR 1960 AP 30.
8 AIR 1962 Cal 455.
9 Shushila Devi vs. Dhani Ram, AIR 1965 HP 12.
Act. Judicial separation and divorce were not available to married

persons under the Hindu Law before. As these proceeding culminating in
decrees or orders new and a creature of special enactment, the provisions
of C.P.C. were in terms incorporated so far as they were not inconsistent
with the provisions of the Act, to regulate the procedure Section 21
enacted in this behalf was confined to the proceedings under the Act
which resulted in orders and decrees. Which are the decrees and which
are the orders have been specified by the Act in its various provisions
and they alone by introduction of a statutory fiction in Section 28 were
treated for a limited purpose to be decrees and orders made in exercise of
original civil jurisdiction. It is obvious that but for this provisions those
specified decrees and orders could not have been treated as such for they
may not come within the meaning of Section 2(2) and (14) of C.P.C. nor
could they be enforced, or executed in accordance with the provisions of
the Code of Civil Procedure. This provision became necessary as the Act
itself did not make any rules for their enforcement. The power so
conferred was further regulated by the clear provision of the Act and
could not go beyond. It was confined to execution of the decrees and
orders. The provisions of appeals against decrees and orders as embodied
in the C.P.C. could not be attracted unless such powers are specifically
conferred. They being procedural must depend besides upon the
conferment of the substantive right by the Act itself. That is why the
second part of the provision has been enacted. That embodied in itself
the rights of appeal and the manner in which it is to be enforced. In that
way alone the scheme can be said to be complete. The alleged dubious
meaning of the words employed has given room for doubt. Once it is
obvious that Act XXV of 1955 is a self-contained special enactment
conferring new rights and prescribing remedies hitherto unknown to
Hindu Law, it is meaningless to expect that right of appeal in relation to
orders passed under the Act would be available in any other law. The
clause “may be appealed from under any provision of law for the time
being in force” would therefore be meaningless if it be construed to
mean that the right of appeal has been made to depends upon the
existence of any provision in that behalf in any law unless we say that
any law would also mean the Act itself. It is further significant that the
provision says “All decrees and orders may be appealed from”. There is
no law for the time being in force which contains provisions of right of
appeal against all specified order in the Act. Even C.P.C. the provisions
of which are attracted by reason of fiction introduced in relation to
decrees and orders for purpose of enforcement and execution does not
contain any provisions with regard to appeals against the orders made
under the Act. 1
It is idle to think that C.P.C. could have anticipated the advent of
the Act and made provisions therefore in its Section 104 or Order 43. If
we interpret the fiction introduced by Section 28 to mean also that it is
available for determining the right of appeal under C.P.C. or any other
law then the expression “all orders” deliberately employed by the
Legislature becomes meaningless for C.P.C. made no provision
therefore, no any other law or rules having the force of law have
provided for the same. The apart, when the right of appeal is not a mere
matter of procedure but a substantive right and has to be conferred by the
Statute, it is only natural and reasonable to expect the conferment of
right by the Act itself. It is unreasonable to think that the Legislature
which contemplated the idea of appeals against all decrees and orders
having regard to their particular importance had left the matter vague or
made it depend on the remote possibility of existence of such right in any
law which could not even anticipate the advent of this Act or the hitherto
unknown rights and remedies provided therein. It is thus manifest that if
the clause “may be appealed from under any law for the time being in
force” be interpreted to mean that the appealability depended upon the
right to be found in any other law for the time being in force, that must
necessarily lead to absurdity, inconsistency and repugnancy. It is absurd
and meaningless because it is vain to expect that a right of appeal for
orders passed under the specific provisions of any Special Act would be
found in the previous laws especially when the orders of the kind could
have no parallel in any previous law. It is repugnant and inconsistent
with the Act because whereas the Act provides for the appealability of
all orders, no known law including the Civil Procedure Code provides for
the appealability of the orders under the Act. The legislature had
definitely in mind that all orders are appealable except on subject of
costs. It cannot be said that this provision was made in vain. It becomes
otiose and would be rendered meaningless if the different interpretation
is put on the clause. 2
The language of Section 28, also makes it clear that decrees under
the Hindu Marriage Act are not decrees under the Code of Civil
Procedure, for it is stated therein that decrees under the Hindu Marriage
Act shall be enforced in like manner as decrees of a Court on its original
civil jurisdiction. The necessarily implies that though the decrees under
1 Kode Kutumba Rao vs. Kode Sesharatnamamba, AIR 1967 AP 323

(FB): (1967) 2 Addh WR 296: (1967) 2 Andh LR 245.
2 Kode Kutumba Rao ibid.
the Act are by statutory fiction treated for the purpose of enforcement as
decrees under the Code, they in fact are not such decrees. It was also not
the intention of the Legislature while giving a right of appeal under
Section 28 of the Hindu Marriage Act, to make that right indefinite and
more or less illusory by providing that the appeal under that section
would be competent only if a provision for that purpose exists in some
other law in force for the time being and not otherwise. Section 28
should be regarded as self-contained so far as appeals against decrees
and orders under the different provisions of the Hindu Marriage Act are
concerned and for this purpose it should not be necessary to look to other
laws. The words in Section 28 “and may be appealed from under any law
for the time being in force”, as I read that section, have reference only to
forum of appeal and the procedure to govern such appeals. 1
The provision in Section 21 which regulates the proceeding under
the Act is not material for deciding the question whether Section 28
itself gives a right of appeal or not. It also appears to us that the
legislature having given a right of appeal in Section 28 it also provided
in the latter part of that section for the procedure for filing the appeal
and the forum for the appeal as also the jurisdiction and power of the
Court in dealing with the appeal filed, by enacting the latter part of
Section 28 using the words “under any law for the time being in force”.
The forum for the appeal would be governed by the Bombay Civil Court
Act and if that law had to be brought into picture it could only be done
by making a general provision that the appeal would be under any law
for the time being in force and the procedure would also then be
governed by the Code of Civil Procedure. 2
Where a right of appeal is given by one law but the other matters
regarding the forum and the procedure or the nature and the extent of the
powers of the Court are to be determined with reference to the relevant
law for the time being in force, the appeal does not cease to be one under
the latter law because the appeal is still governed by that law. 3
All decrees and orders passed in a proceeding under the Hindu
Marriage Act are appealable by virtue of the provisions of Section 28
itself. The words “may be appealed from under any law for the time
being in force” have to be understood as meaning that although the right
1 P.C. Jairath vs. Amrit Jairath, AIR 1967 Pun 148 (DB): ILR (1967)
1 Pun 695.
2 Madhukar Trimbakrao Ghisad vs. Malti Madhuka Ghisad, AIR
1973 Bombay 141 (DB): 1973 Mah LJ 204: 75 Bom LR 311: ILR
(1973) Bombay 1003.
3 Gangadhar Rakhamaji vs. Manjulal Gangadhar, AIR 1960 Bom 42
of appeal is derived from this section itself, so far as the procedural

aspect of the appeal is concerned, it will be governed by the Code of
Civil Procedure, 1908 and the Rules prescribed for matters relating to the
Act by the respective High Court in this case the Civil Court Rules of the
High Court of Judicature. 1
As to decrees there is no difficulty as decrees are appealable
under the Civil Procedure Code. The difficulty arises in the case of
orders made under the Act under Section 24, 25 and 26. Section 24
provide the grant of maintenance pendente lite and expenses of
proceedings Section 25 for grant of permanent alimony and maintenance
and Section 26 for the custody of children. The Legislature intended that
order under these sections should be appealable although the language of
the section is undoubtedly not happy. 2
The provisions of S.3(b) of the Act does not define ‘District
Judge’ but a ‘district court’ and merely because the Civil Judge, Dehra
Dun becomes a ‘district court’ for purpose of the Act, does not mean that
he becomes a District Judge in the sense in which that word is used in
the Bengal, Agra and Assam Civil Courts Act.
By virtue of the special provisions of S.3(b) of the Act, the
functions of a “district court” under the Act may be performed by the
District Judge as also by the Civil Judge but that would not equate the
two and two expressions would not become synonyms. The district of
Dehra Dun is a part of the judgeship of Saharanpur and there is one
common District Judge for both the districts who sits of Saharanpur.
Instances of Civil Judges and District Judges exercising the same
jurisdiction are well known in several matters. As for example,
insolvency proceedings. Normally a District Judge is the Insolvency
Judge but powers can be conferred on the Civil Judge also in that case an
appeal would lie to the District Judge. In the Companies Act, liquidation
proceedings can be taken both before the High Court as also before the
District Judge under certain circumstances but so far no one has
contended, and no one can reasonably contend, that the Civil Judge,
while exercising the functions of an Insolvency Judge, becomes District
Judge and the District Judge, while performing the functions of the
Company Judge become a High Court. 3
1 Suresh Prasad vs. Manorama Debi, AIR 1973 Patna 321 (DB).
2 Govind Ram vs. Lila Devi, AIR 1969 Raj 253.
3 Major Dal Chand Singh Pratap vs. Swaran Pratap, AIR 1965 All 46
(DB): 1964 All LJ 186: ILR (1964) 1 All 676.
Application of Civil Procedure Code

In Chander Prakash v. Sudesh Kumari, 1 it was held that a decree
for divorce granted by District Court when found erroneous on appeal
can be substituted into one for judicial separation under Order 7, C.P.C.
In Tirukappa vs. Kamalamma 2, the Division Bench of Mysore High
Court held that provision of Order 9, Rules 8 and 9 are applicable to
proceedings under Hindu Marriage Act. So also Order 22, C.P.C. was
made applicable to a situation where a party to a proceeding under the
Hindu Marriage Act dies. 3
In Krishna Udayan vs. Chhina Pillai, 4 it was held that said
provision of C.P.C. was applicable to ex parte proceedings under Land
Acquisition Act. Similarly, in Veeramchineni Seethiah vs. Bode
Venkatasubbaih, 5 it was held that said provision were applicable to ex
parte orders passed under the Company Act.
If there are large number of decision holding number of provision
of C.P.C. applicable to proceedings under the Hindu Marriage Act, there
is no reason why provisions of Order 9, Rule 13 be not made applicable.
Section 21 of the Hindu Marriage Act does not stand in the way.
Secondly, Order 9, Rule 13 incorporates sound principle of the effective
right of being heard and provides an immediate remedy in the trial court
itself to put the defendant in a position in which he would he would have
been if no ex parte decree was passed against him. The aggrieved
defendant should not be driven to the appellate forum when the matter
can be set right in the first court itself. This avoids multiplicity of
proceedings and expenses. It is for this reason that Order 9, Rule 13 has
been made applicable in case of other special Acts. 6
Appreciation of affidavits
If the question had to be decided on the basis of the affidavits,
the court was bound to consider the question as to whose version was
more acceptable. The court cannot, with folded hands as it were, adopt,
an attitude of utter helplessness in such situation. If this attitude is
adopted, the court will not be in a position to grant alimony or expenses
in many such proceedings. That is farthest from the intention of the
Parliament. There are very many matters, including matters of great
1 AIR 1971 Delhi 208.

2 AIR 1966 Mysore 1
3 S.M. Pande vs. Monohar, AIR 1971 Bombay 183.
4 AIR 1948 Madras at page 416, 417 and 418.
5 AIR 1949 Madras 675 at Page 681.
6 Jang Bahadur Syal vs. Mukta Syal, I (1986) DMC 114 Delhi.
Practice & Procedure—Burden of proof 521
moment like writ petitions under Article 32 and 226, which are decided
on the basis of affidavit evidence. Parties to the proceedings necessarily
get relief, it circumstances justify it. The mere fact that one party has
chosen to contradict the averments in the affidavits of the other party
does not absolve the court from its solemn duty to weight the respective
contentions and come to a proper decision. 1
Appreciation of evidence
In revision evidence cannot be reassessed. But if in assessment of
evidence a legal mistake has been committed by the Trial Court, the
same can be corrected in revision. Cardinal principal is that in
matrimonial or maintenance cases solitary evidence of a spouses
attributing unchastity or adultery to the other party, should not be relied
upon because such spouse is extremely interested in the case. 2
Burden of proof
The person who seeks a remedy in a Court of law in bound to
prove the allegations and the burden of proof never shifts on the other
person. Until the initial burden cast on the person is discharged. 3
The degree of proof in a maintenance proceeding cannot be that
of strict liability. It was held that the very fact that the petitioner
husband was residing at Surat and when the respondent wife has been to
him after the child was born and the fact that the petitioner suspecting
her fidelity had brought her to her parents along with the child and left
her and thereby neglected and refused to maintain is enough to entitle the
respondent wife for maintenance. 4
In case where the party alleges a particular document to have
been obtained by fraud or coercion, the primary burden would be on the
said party to show by adducing such evidence that circumstances in
which the document was executed are suspicious or to lead such
evidence to show that the document was not acted upon at all. In this
case the document was executed and after execution of the said
document, the wife left the house of husband and started staying with her
brother. This document contains a clause that they are residing separately
1 Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
3 K. Kamaldevi vs. Kammala Kumara Sekhar, I (1994) DMC 183 AP.
4 Rajendra Devidas Hirurkar vs. State of Maharashtra, I (2000) DMC
590 Bombay.
by mutual consent. It was held that it shows that the document was
acted upon. 1
Cancellation of order
The legislative intent is manifest in the language used in Sub-
section 2 that the order needs to be cancelled or varied by the Magistrate,
if the Magistrate feels that the order of maintenance passed by him
should be cancelled or varied in view of the decision of the competent
civil court. Without such cancellation and variation, the order of
maintenance would not be rendered ineffective. The civil courts decision
must be brought to the knowledge of the Magistrate whether rendered
before or after the order and the Magistrate shall then consider the
question of cancellation or variation of the maintenance order. However,
a clear and categorical finding, if given by the competent Civil Court,
cannot be overlooked or ignored or disregarded by the Criminal Court. 2
Challenge to consent decree

The whole purpose of Section 19(2) of the Hindu Marriage Act,
1955 is that if conciliation between the parties has been arrived at, the
parties are bound by it and cannot wriggle out of it. This is the reason
why it has been provided against a decree passed on the basis of
compromise. If the arguments is to prevail it would mean that the object
of the Act, i.e. conciliation and early settlement of disputes between the
wife and husband would be fraught with danger and would be completely
outside the aims and objects of the Act. Therefore it was held that in
view of the provisions of Section 19(2) of the Act no appeal would be
maintainable against the judgment decree of divorce based on
conciliation between the parties. 3
Change in circumstances
Wife had filed the application on the changed circumstance that
husband has married again. When wife has gone out of her own accord,
she can also come back because husband has not thrown her out. By
second marriage husband has closed the door for the wife to come back.
Even if there would be no second marriage keeping a woman in the
house as concubine has the same effect. Creating circumstances which
would not be congenial to a wife to remain with her husband is a cruelty
and is also legal desertion even if husband has the desire to be with his
wife without change of circumstance. Thus, on proof of second marriage,
1 Balkirshna Jagannath Mangsule vs. Kalpana & State., II (1984)

DMC 257 Bombay.
2 Harikishan vs. Shanti Devi, I (1989) DMC 29 Raj.
3 Ajay Kapoor vs. Pramila Kapoor, I (1992) DMC 85 All.
Practice & Procedure—Consent order 523
prior Civil Court decree when there was no second marriage or keeping a
concubine would not have any effect. 1
Proceeding under Section 125, Cr. P.C. is summary in nature. On
the materials Court is to come to the conclusion whether there is second
marriage. Basing on oral evidence and birth certificate of a female child
where petitioner has been recorded to be the father, trial Court has come
to the conclusion that petitioner has married again. No material had been
brought on record by petitioner that there is another person of the same
name in the village or that the registration has been made wrongly
otherwise. In such circumstance, it was held that the finding of trial
Court cannot be said to be unreasonable to be interfered with in a
revision. Hence, it was held to have been proved by the wife that
petitioner has married again. 2
Condonation of delay
Where a certificate of doctor was produced to explain the cause
of delay it was found that the certificate of doctor filed in support was
totally false one. It is apparent by only reading it. It does not mention as
to by which ailment and if the appellant was down then of what period. It
was held that the appellant had just procured the said certificate for the
sake of production. It has no sanctity. 3
Consent order
In proceedings under Section 488 where a petition of compromise
fixing the maintenance allowance is filed by both the parties, the proper
order to be passed by Magistrate in such a case ‘Petition of compromise
filed. Order in terms of compromise’ and not ‘case amicably settled.
Petition of compromise filed. Rule discharged.’ 4
When there is an order passed by the Court, may be on the basis
of consent of the parties, it was held that the learned Magistrate and the
Sessions Judge have misread facts and law and had improperly held that
since there was no order of the Court granting maintenance under
Section 125, no application for variance of the quantum of maintenance
under Section 127 is maintainable. 5
1 Neheru Bag vs. Tapaswini Bag, I (1992) DMC 197 Ori.

2 Neheru Bag vs. Tapaswini Bag, ibid.
3 Devilal vs. Kantabai, II (2000) DMC 238 MP.
4 Debjani Biswas v. Rasik Lal Biswas, AIR 1941 Calcutta 558 DB.
5 Dagdubai vs. Mohanrao, II (1995) DMC 512 Bombay.
Counter claim
Where the wife was claiming maintenance from husband it was
held that the counter claim cannot be made by husband to seek divorce
from the wife. 1
The same are the grounds on which a Hindu husband or wife can
claim maintenance under Section 18 of the Hindu Adoptions &
Maintenance Act. In this case the husband as well as the wife were
accusing each other of desertion as well as cruelty. In a matrimonial
matter regarding the maintenance or divorce the conduct of the
respective party has to be looked into and, therefore, the proceedings for
maintenance and divorce cannot be said to be of different genus. They
arise out of the same common bond i.e. the marriage and, therefore,
unless otherwise restricted a counter-claim for divorce was held to be
maintainable under Order 8, Rule 6-A in proceeding for the grant
of maintenance. 2
Creation of charge
Justice West 3 has observed as under:
“If the heir sought to defraud her, he could not indeed, by any
device in the way of parting with the estate, or changing its form,
get rid of the liability which had come to him along with the
advantage derived from his survivorship; and the purchaser taking
from his with reason to suppose that the transaction was one
originating not in an honest desire to pay off debts, or satisfy
claims for which the estate was justly liable, and which it could
not otherwise well meet, but in a design to shuffle off a moral and
legal liability — would, as sharing in the proposed fraud, be
prevented from gaining by it. …….It was therefore immaterial
that the transferee had notice of the claim to maintenance.”
Relying on the above it was noticed that the Section 39 of
Transfer of Property Act amended in 1939 by Act 20/1939, where the
earlier wordings “transferred with the intention of defeating such right”
was amended. These wordings are found in the said section. Therefore, if
the purchaser is a transfer for consideration, it takes subject to the right,
if it is gratuitous transfer, it takes subject to the right whether he has
notice of it or not. The effect of the amendment is to make the widow to
prove the transfer made with the intention of defeating her rights. 4
1 Neelam Singh vs. Vijaya Narian Singh, AIR 1995 All 214.
2 Neelam Singh vs. Vijaya Narain Singh, ibid.
3 Lakshman vs. Satyabhama Bai, 1977 (2) Bombay 494.
4 Kanthamma vs. Nanjunda Devaru, 1999(1) HLR 213 Karnataka.
Practice & Procedure—Date from which amount to be awarded 525
Cross Examination
The petitioner got examined himself and challenged the statement
of the opposite party and her witness. He could also produce evidence of
his end to establish his version of the case in this regard. Since he did
not take any steps to contradict the opposite party or to establish his own
version, the evidence of the opposite party on the most vital point may
be accepted as it was practically ex parte. 1
Date from which amount to be awarded

Maintenance is to be awarded from the date of order, but the
Court is not debarred from awarding it from the date of application. To
make maintenance payable from the date of application, the Court must
have cogent reasons for ordering so. Normally, the reasons relate to the
conduct of the husband during the trial. The husband, who is guilty of
delaying tactics in trial and had been putting obstacles in early disposal,
can be directed to make the payment of maintenance from the date of
application. In this case, there was no such allegation. The learned Trial
Court, while awarding maintenance from the date of application, had
been influenced by the cruelty of the husband towards his wife. It was
held that it was not the relevant consideration for ordering maintenance
payable from the date of application. Cruelty can be valid ground in
awarding maintenance, but if the maintenance is to be made payable
from the date of application, this will not be a relevant ground. 2
Where the application is kept pending and the party making
application is not responsible for protracting the proceedings, in such
cases court has to bear in mind two maxims of equity which are well
settled, namely, Actus Curiae Neminem Gravabit. An act of the Court
shall prejudice no one. 3
In Broom’s Legal Maxims 4, it is explained that this maxim was
founded upon justice and good sense; and afforded a safe and certain
guide for the administration of the law. The maxim should, however, be
applied with caution. The other maxim is “Fiat Justitia”, justice be done
and that justice should be fair causing prejudice to no one. 5
11 Asraf Ali Molla vs. Mst. Manowara Khatoon Bibi, II (1986) DMC 99
Calcutta.
2 Charanjit Singh Grewal vs. Inderjit Kaur, I (1989) DMC 77 P&H.
3 Indira Gagele vs. Shaildendra Kumar Gagele, AIR 1992 MP 72:
1991 JLJ 179: 1991 MPLJ 832.
4 10th Edition, 1939 at page 73
5 Indira Gagele vs. Shaildendra Kumar Gagele, AIR 1992 MP 72:
1991 JLJ 179: 1991 MPLJ 832.
Normal rule is to award temporary maintenance to the applicant

by the Court from the date of filing of application. There may be certain
exceptions to this normal rule, but I do not find any exceptional facts and
circumstances in this case which warrant deviation from this settled
proposition of law. The hardship of husband in this case as well as his
position to unable to make payment of arrears of maintenance is hardly
of any relevance and weight. It is not consideration what to say a
relevant consideration that in case the temporary maintenance is awarded
from the date of filing of the application by wife, the husband would not
have been in a position to bear out this burden of payment of arrears. If
we go by this consideration, then for an unscrupulous husband as well as
for the reasons that the Court for its own is unable to decide the
application for a long period the wife shall be sufferer or sustain injury
though either way nothing is attributable to her in the matter. It is not
unknown to the Courts and particularly this Court that whatever may be
the nature of application, in deciding thereof, the Court needs a
reasonable time. Merely on filing the application on the same day and
without following the principles of natural justice, the Court cannot pass
the order. So the reasonable time is to be taken by the Court in following
due process of procedure to decide the application. Sometimes, it also
happens that the husband makes attempts to delay the disposal of such
application. However, neither of the Counsel for the petitioner nor
respondents have come up with any complaint of this nature against any
of the spouse. In view of this fact, it is a case where temporary
maintenance is to be granted to the wife-respondent under Section 24 of
the Hindu Marriage Act, 1955, from the date of filing of the application. 1
In the case of Gangabai vs. Shivram, 2 it was held as under:
“That when the Magistrate has given a finding that the applicant
was forcibly turned out by the husband-opponent who never cared
or tried to bring back the applicant and on the contrary married
another woman. In such circumstances, it is not difficult to
conceive that the applicant was driven to seek help and obligation
of others quite unwillingly in order to survive during the period
of litigation……… The reason for awarding the maintenance
allowance for the period of litigation i.e. from the date of
application to the date of the order is, in my opinion, implicit in
the finding given by the Trial Magistrate as aforesaid.”
The above observations were relied in a later case as well. 3
1 Natvarbhai Muljibhai Chauhan vs. Hansaba Natvarbhai Chauhan,

2 1989 MPLJ 44: 1988(2) All India Hindu Law Reporter 739 (MP).
3 Kanshiram vs. Shantibai, 1999(1) HLR 380 MP.
Practice & Procedure—Date from which amount to be awarded 527
Court should normally pass order to pay the maintenance from

the date of order, if not from the date of application for the maintenance.
Therefore, in the absence of any such specific direction to pay
maintenance either from the date of order or from the date of application,
it should be construed that the payment of maintenance is only from the
date of order in view of Section 125(2), Criminal Procedure Code. If the
Court intended to pass an order for payment of maintenance from the
date of application, it should have stated so in the order. 1
A minor girl was not granted interim maintenance. The case
remained pending for about nine years for no fault of the minor girl. It
was held that the learned Session Judge was, therefore, perfectly
justified to grant maintenance is her from the date of application. 2
Section 125(2), Criminal Procedure Code is very clear that such
maintenance shall be payable from the date of the order, or, if so
ordered, from the date of the application maintenance. Considering the
aforesaid provisions there can be no dispute on the point that ordinarily
payment of maintenance under Section 125, Criminal Procedure Code
has to be ordered from the date of the order but if the Court decides to
award maintenance from the date of application them reasons have to be
given in the judgment. 3
The plain meaning of the words used in Sub-section (2) of
Section 125, Criminal Procedure Code is that if no date is specified in
the order, the maintenance is payable from the date of the order but the
Court has a discretion to specify that the maintenance shall be payable
from the date of application.
The allegations made in the application for grant of maintenance
sufficiently revealed prima facie refusal and neglect on the part of the
petitioner to maintain his wife who has no source of income and is
unable to maintain herself. It was held that the trial Court rightly
considered the respective contentions of the parties and then passed the
impugned order. Under Sub-Section (2) of Section 125 Cr.P.C. the
maintenance allowance is payable from the date of the order or if so
ordered from the date of the application for maintenance and Court is not
1 Suraboyina Vijaya vs. Suraboyina Dharmaraju, 1999(1)

HLR 423 AP.
2 Ameen Khan vs. State of Rajasthan, 1999(1) HLR 577
Rajasthan: II (1999) DMC 536.
3 Gusai vs. Banoobai, 1999(1) HLR 624 MP.
bound to record reasons for allowing maintenance from the date

of application. 1
A bare reading of Section 125 Criminal Procedure Code and more
so Sub-section 2 will show that the allowance shall be payable from the
date of the order, or, if so ordered, from the date of the application for
maintenance. Therefore, if the Court feels that the amount of
maintenance should be ordered from the date of application there should
be some reasons for ordering so. 2
In one case, the respondent had withdrawn from the society of the
appellant much before the institution of the proceedings. There was no
notice given by her prior to the filing of the suit making demand for
maintenance. In the written statement, the appellant pleaded that he was
always ready and willing to maintain the respondent who has voluntarily
withdrawn herself from his society. He offered to maintain her and did
not resist payment of interim maintenance during the pendency of the
suit. That being so, it was held that this was a fit case where no
maintenance should be granted to the respondent for any period prior to
the suit. 3
Ordinarily, if maintenance is granted, direction is usually given
for payment of maintenance from the date of the application. Where,
however, some interim maintenance is paid, subsequently the Court may
direct that maintenance was decided in the final order may be paid from
the date of the final order. Similarly where the case is unnecessarily
lingered due to laches of the wife, the Court may for justifiable reason
direct that payment of maintenance should be from the date of order and
not from date of application. No hard and fast rule can be laid down on
this aspect and the matter is essentially one of discretion of the Court. 4 In
this case, the Magistrate had not given any reason as to why maintenance
is to be paid from the date of the order and not from the date
of application.
Applicant levelled charges of adultery against his wife, the
opposite party to the petition, without proving the same in the Court. It
was held that such habit is generally rampant and reckless charges of
corrupt life against the wife are levelled without any hesitation by the
husbands. Such a conduct on the part of the husband is incomprehensible
and this practice is to be deprecated. If such charges are levelled and not
1 Nirmal Dass vs. Usha Devi, I (1992) DMC 387 P&H.

2 Qamruddin vs. Rashida, II (1992) DMC 328 Raj.
3 Bhagwant Prasad vs. Sahodra Bai, I (1982) DMC 198 MP.
4 Kanhu Charan Jena vs. Nirmala Jena, I (2001) DMC 272 Orissa.
Practice & Procedure—Delay & laches 529
proved it cannot be said that the Court has fixed maintenance allowance
from the date of application without giving appropriate reason. This
itself constitutes one of the reason for granting maintenance allowance
from the date of application. 1
In case the Court start to grant the maintenance which includes
temporary/interim maintenance from the date of the order then the
husband who is capable of managing delay in disposal of such an
application would be benefited. The delay in the disposal of the
application in general in the case is not because of any fault of the wife
but sometimes our adversary system itself is a substantial cause of the
delay in disposing of the application. Otherwise also irrespective of the
fact that the application has been filed for grant of maintenance by the
wife, the husband has pious obligation and duty to maintain his wife. 2
Delay & laches

The couple lived together for a short span of time when wife left
the company of her husband. It was thereafter that she delivered a female
child. This happened some time in the year 1961. It was in 1972 that
husband went abroad and re-married thereafter. If wife had left the
company of her husband of her own and continued living separately for a
period of about 10 years, she could not claim any maintenance from her
husband. Without commenting upon the legality or otherwise of the
second marriage of the husband, it was held that the same would not give
any fresh cause to the wife to claim maintenance. 3
Section 5 provides for the admission of appeal or application
mentioned in the said Section after the ‘prescribed period’. The
expression “prescribed period” has been defined in Clauses (j) of Section
2 of the Act. It means the period of limitation computed in accordance
with the provisions of the Limitation Act. The of limitation computed in
accordance with the provisions of the Limitation Act. The period of
limitation as defined in Clauses (j) means the period of limitation
prescribed for any suit, appeal or application by the Schedule of the Act.
In the Schedule itself, however, an application under Section 126 of the
Criminal Procedure Code has not been mentioned. But in view of Sub-
section (2) of Section 29 of the Act where any special or local law
prescribes for any suit, or application a period of limitation different
from the period prescribed by the Schedule, for the purpose of
1 Kamal Kishore vs. State of Uttar Pradesh, I (2001) DMC 313 All.
2 Amankumar Latibhai Parekh vs. Pritiben Amankumar Parekh, II
3 Seeso @ Bakhshish Kaur vs. Pakhar Singh Jhuti, I (1991) DMC
505 P&H.
determining the period limitation prescribed for any suit, appeal or

application by such special or of local law the provisions of Section 3
shall apply as if such period was the period prescribed by the Schedule,
Provisions of Section 4 to 24 of the Act would, therefore, be applicable
for determining the period of limitation prescribed by the special or the
local law to the extent they are not expressly excluded by such special or
local law. There is nothing in Section 125 of the Criminal Procedure
Code to expressly bar the application of Section 5 of the Limitation Act.
So Section 5 may be availed of for computing the period of limitation
prescribed in Section 126. 1
Determination of paternity
The basis of an application for maintenance of a child is the
paternity of the child irrespective of its legitimacy or illegitimacy. The
section by conferring jurisdiction on the Magistrate to make an
allowance for the maintenance of the child, by necessary implication,
confers power on him to decide the jurisdictional fact whether the child
is the illegitimate child of the respondent. It is the duty of the court,
before making the order, to find definitely, though in a summary manner,
the paternity of the child. Sub-section 6 of Section 488 of old Code was
held mandatory in form and in clear terms it prescribes the procedure to
be followed by the Magistrate. Under that sub-section, all evidence under
that chapter shall be taken in the presence of the husband or the father,
as the case may be, or, when his personal attendance is dispensed with,
in the presence of his pleader, and shall be recorded in the manner
prescribed in the case of summons-cases. The word “all” with which the
sub-section opens emphasizes the fact that no evidence shall be taken in
the absence of the father or his pleader. It was conceded that Sections
200 to 203 of the Code do not apply to an application under Section 488
of the Code. As the proceedings are of a civil nature, the Code does not
contemplate any preliminary enquiry. When the terms are clear, there is
no scope for drawing inspiration from other sections of the Code, or for
deviating from the procedure prescribed to fill up an alleged lacuna. It is
said that if no preliminary enquiry be held, even in a blackmailing action
notice will have to go to the respondent. There is nothing incongruous in
this position; for, if a suit is filed in a civil court for a decree for
maintenance by a child against the alleged putative father, summons will
go to him without any preliminary enquiry. It appears that notice to the
respondent is in the interest of both the applicant as well as the
respondent while it enables the respondent to be present when evidence
1 Satrunghna Adak vs. Sonali Adak Nee Tung. II (1993) DMC 263
Calcutta.
Practice & Procedure—Determination of paternity 531
is taken against him, it lightens the burden of the petitioner, for an

honest respondent may admit his paternity of the child, if that was a fact
and may contest only the quantum of maintenance. It was therefore held
that Section 488 of the Code does not contemplate a preliminary enquiry
before issuing a notice, but lays down that all evidence under that
Chapter should be taken in the presence of the respondent or his pleader
indicating thereby that one enquiry only should be held after notice. 1
In one case it was admitted that one Gunwant(husband) had been
residing in Manorama’s house as a tenant. In fact, that is his own case.
Manorama, as the landlady, therefore, deposed, entering the witness box
for Gunwant, that Gunwant’s brother Ganesh was her tenant, that
Ganesh, his wife and Gunwant were residing in her house, that she also
knew Pushpa Vithova Butale (wife) who lived at a short distance from
her house. On cross-examination, the very clear admission which
Manorama had made is that Pushpa Butale had also been in fact, staying
with petitioner Gunwant in her house, that she gave birth to a female
child which so living in her house along with the petitioner Gunwant,
that the petitioner Gunwant had therefore left her house. She also stated
that she had no grievance against him because due rent had been paid to
her also. The establishes that the witness has no animus whatsoever
against the husband apart from the fact that she was called by him only
as his witness.
In view of above it was held that the evidence of Manorama lends
further credence to the testimony of the old man Bajirao, aged 65 years.
He has stated quite assertively that the petitioner Gunwant and Maduri’s
mother Pushpa were residing in one room as tenants, that they cohabited
for 3 years, in the said room and stating frankly at the same time that he
was not aware whether they had been legally wedded husband and wife.
According to him, they did, however, live as husband and wife. A
considerable length of cross-examination failed to achieve any result.
The witness has asserted the fact that Pushpa and Gunwant had lived as
wife and husband. In the circumstances, there is little objection that can
now be left to be taken and challenge to be raised to the order passed by
the learned Additional Session Judge. Quite obviously, there was an
error apparent on the face of the record so far as the decision given by
the learned Magistrate was concerned. It was an entirely perverse
appreciation of the evidence by the learned Judicial Magistrate making it
incumbent upon the learned Additional Session Judge to intervene and
1 Nand Lal Misra vs. Kanhaiya Lal Misra, AIR 1960 SC 882: 1960
CrLJ 1246: 1960(3) SCR 431: 1960 Ker LT (SC) 25: 1961 All WR
(HC) 53.
correct the illegality committed. that jurisdiction, upon a perusal of the

record, must be found to have been rightly exercised by the learned
Additional Session Judge. 1
Child begotten during the subsistence of valid marriage — The
husband failing to prove that he had no access to the wife during the
period of question— Presumption under section 112 of Evidence Act,
1872 is raised — The wife or child cannot be subjected to DNA testing. 2
The child was born during the continuance of a valid marriage,
i.e. (a marriage not yet established to be invalid) is conclusive proof that
the child is born to the husband unless he is able to prove that the had no
access to the wife at any time, when the child could have been begotten.
Therefore, the husband has to establish non-access to the wife after
marriage. Admittedly, they had spent, at least one night together, even
according to the husband. Even thereafter there is no proof of non-
access. Admittedly, there was in existence opportunity for marital
intercourse on the first night. Once such an opportunity is found to be in
existence, the husband falls outside the exception mentioned in Section
112 inasmuch as what is required under Section 112 is non-access, i.e.
non-existence of opportunity for marital intercourse, at any time when
the child could have been begotten. The words again are ‘could’ have
been begotten and not ‘actually begotten’. In this case, the parties having
met on the least one night for purposes of marital intercourse, the
husband has no chance to prove non-access or non-existence of
opportunity for marital intercourse. Even thereafter, there must be proof
of total non-access. 3
The mere allegation of fraud or suppression does not convert the
marriage into an invalid marriage. Fraud or such suppression can be
established only at the trial and after the Court accepts the plea. A mere
plea or fraud or suppression does not render Section 112 inapplicable. 4
If the conclusive proof afforded by Section 112 protects the child
and the mother too, the case not falling under the exception, the second
question of permitting rebuttal evidence by DNA finger-printing does not
arise at all. Such a situation could arise if the Legislature had used the
words ‘may presume’ or ‘shall presume’ instead of the words ‘conclusive
proof’; or where the case falls within the sole exception mentioned in
1 Gunwant Bhagwan Wakode vs. Maduri Gunwant Wakode, I (1992)

DMC 275 Bom.
2 Mathew vs. Annamma Mathew, 1994 (1) DMC 525 (DB) Ker.
3 Mathew vs. Annamma Mathew, ibid.
4 Mathew vs. Annamma Mathew, ibid.
Practice & Procedure—Directions for blood test 533
Section itself. Hence, unless Parliament amends Section 112 by

substituting the words ‘ may presume’ or ‘shall presume’ for the words
‘conclusive proof’ in Section 112 of the Evidence Act, it is not possible
to permit DNA finger-printing in cases which do not fall within the
exception mentioned in the Section. The said exception is the sole
exception, as the Section stands today. 1
Directions for blood test

In India there is no special statute governing this. Neither the
Criminal Procedure Code nor the Evidence Act empowers the Court to
direct such a test to be made.
In Hanumamma vs. Polavarapu Subbayya, 2 an application was
preferred under S. 151 of the Code of Civil Procedure invoking the
inherent powers of the Court to direct a blood test. It was observed
as under:
Section 151, Civil Procedure Code, has been introduced into the
Statute book to give effect to the inherent powers of Courts as
expounded by Woodroffe, J., in Hukum Chand Boid vs. Kamalan
and Singh. 3 Such powers can only be exercised ex debito justitiae
and not on the mere invocation of parties or on the mere volition
of courts. There, is no procedure either in the Civil Procedure
Code or in the Indian Evidence Act which provides for a test of
the kind sought to be taken by the defendant in the present case.
It is said by Mr. Ramakrishna for the respondent before me that
in England this sort of test is resorted to by Courts where the
question of non-access in connection with an issue of legitimacy
arises for consideration. My attention has been drawn by learned
counsel to page 69 of Taylor’s Principles and Practice of Medical
Jurisprudence, Volume 8, where it is stated thus:
“In Wilson vs. Wilson, Lancet, 1942 1.570, evidence was given
that the husband’s group was OM, that the wife’s was BM and
that the child’s was ABN. The Court held that the husband was
not the father of the child, and granted a decree for nullity.”
It is also pointed out by learned counsel that in the test books on
Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P.
Modi, (8th Edition), at page 94, reference is made to a case
decided by a Criminal Court at Mercara in June, 1941, in which
the paternity and maternity of the child being under dispute, the
Court resorted to the results of the blood grouping test.
1 Mathew vs. Annamma Mathew, 1994 (1) DMC 525 (DB) Ker.
2 (1951) 1 Mad LJ 580: AIR 1951 Mad 910 (1).
3 1906) ILR 33 Cal 927.
That may be. But I am not in any event satisfied that if the parties
are unwilling to offer their blood for a test of this kind this Court
can force them to do so.”
The same view was taken by the Kerala High Court 1:—
“A special protection is given by the law to the status of
legitimacy in India. The law is very strict regarding the type of
the evidence which can be let in to rebut the presumption of
legitimacy of a child. Even proof that the mother committed
adultery with any number of men Will Dot of itself suffice for
proving the illegitimacy of the child. If she had access to her
husband during the time the child could have been begotten the
law will not countenance any attempt on the part of the husband
to prove that the child is not actually his. The presumption of law
of legitimacy of a child will not be lightly repelled. It will not be
allowed to be broken or shaken by a mere balance of probability.
The evidence of non access for the purpose of repelling it must be
strong, distinct, satisfactory and conclusive (See Morris v.
Davies. The standard of proof in this regard is similar to the
standard of proof of guilt in a criminal case. These rigours are
justified by considerations of public policy for there are a variety
of reasons why a child’s status is not to be trifled with. The
stigma of illegitimacy is very severe and we have not any of the
protective legislations as in England to protect illegitimate
children. No doubt, this may in some cases require a husband to
maintain children of whom he is probably not their father. But,
the legislature alone can change the rigour of the law and not the
court. The court cannot base a conclusion on evidence different
from that required by the law or decide on a balance of
probability which will be the result if blood test evidence is
accepted.
There is an aspect of the matter also. Before a blood test of a
person is ordered his consent is required. The reason is that this
test is a constraint on his personal liberty and cannot be carried
out without his consent. Whether even a legislature can compel a
blood test is doubtful, Here no consent is given by any of the
respondents. It is also doubtful whether a guardian ad litem can
give this consent. Therefore, in these circumstances, the learned
Munsiff was right in refusing the prayer for a blood test of the
appellant and respondents 2 and 3. The learned Judge is also
correct in holding that there was no illegality in refusing a blood
test. The maximum that can be done where a party refuses to have
a blood test is to draw an adverse inference (see in this
connection Subayya Gounder v. Bhoopala, 2 and the earlier
decision of the same court in Venkateswarlu v. Subbayya. 3 Such
1 Vasu vs. Santha, 1975 Ker LT 533

2 AIR 1959 Mad 396.
3 AIR 1951 Mad 910 (1).
Practice & Procedure—Directions for blood test 535
an adverse inference which has only a very little relevance here

will not advance the appellant’s case to any extent. He has to
prove that he had no opportunity to have any sexual intercourse
with the Ist respondent at a time when these children could have
been begotten. That is the only proof that is permitted under S.
112 to dislodge the conclusive presumption enjoined by the
Section.”
Madhya Pradesh High Court, 1 held as under:—
“The blood grouping test is a perfect test to determine questions
of disputed paternity of a child and can be relied upon by Courts
as a circumstantial evidence. But no person can be compelled to
give a sample of blood for blood grouping test against his will
and no adverse inference can be drawn against him for this
refusal.”
Blood grouping test is a useful test to determine the question of
disputed paternity. It can be relied upon by courts as a circumstantial
evidence which ultimately excludes a certain individual as a father of the
child. However, it requires to be carefully noted no person can be
compelled to give sample of blood for analysis against her will and no
adverse inference can be drawn against her for this refusal.
In Raghunath vs. Shardabai, 2 it was observed blood grouping test
have their limitation, they cannot possibly establish paternity, they can
only indicate its possibilities.
In Bhartiraj vs. Sumesh Sachdeo, 3 it was held as under:—
“Discussing the evidentiary value of blood tests for determining
paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this
to say:—
“Medical Science is able to analyse the blood of individuals into
definite groups: and by examining the blood of a given man and a
child to determine whether the man could or could not be the
father. Blood tests cannot show positively that any man is father,
but they can show positively that a given man could or could not
be the father. It is obviously the latter aspect that proves most
valuable in determining paternity, that is, the exclusion aspect,
for once it is determined that a man could not be the father, he is
thereby automatically excluded from considerations of paternity.
When a man is not the father of a child, it has been said that there
is at least a 70 per cent chance that if blood tests are taken they
will show positively he is not the father, and in some cases the
chance is even higher: between two given men who have had
1 Hargovind Soni vs. Ramdulari, AIR 1986 MP 57.

2 AIR 1986 Bom 386 at 388.
3 AIR 1986 All 259.
sexual intercourse with the mother at the time of conception, both

of whom undergo blood tests, it has likewise been said that there
is a 80 per cent chance that the tests will show that one of them is
not the father with the irresistible inference that the other is
the father.
The position which emerges on reference to these authoritative
texts is that depending on the type of litigation, samples of blood,
when subjected to skilled scientific examination, can sometimes
supply helpful evidence on various issues, to exclude a particular
parentage set up in the case. But the consideration remains that
the party asserting the claim to have a child and the rival set of
parents put to blood test must establish his right so to do. The
court exercises protective jurisdiction on behalf of an infant. In
my considered opinion it would be unjust and not fair either to
direct a test for a collateral reason to assist a litigant in his or her
claim. The child cannot be allowed to suffer because of his
incapacity; the aim is to ensure that he gets his rights. If in a case
the court has reason to believe that the application for blood test
is of a fishing nature or designed for some ulterior motive, it
would be justified in not acceding to such a prayer.”
In matters of this kind the court must have regard to Section 112
of the Evidence Act. This section is based on the well known maxim
pater est quem nuptioe demonstrant (he is the father whom the marriage
indicates). The presumption of legitimacy is this, that a child born of a
married woman is deemed to be legitimate, it throws on the person who
is interested in making out the illegitimacy, the whole burden of proving
it. The law presumes both that a marriage ceremony is valid and that
every person is legitimate. Marriage or affiliation (parentage) may be
presumed, the law in general presuming against vice and immorality.
It is a rebuttable presumption of law that a child born during the
lawful wedlock is legitimate, and that access occurred between the
parents. This presumption can only be displaced by a strong
preponderance of evidence, and not by a mere balance of probabilities.
The Courts in India can not order blood test as a matter of course.
Principles for exercise of jurisdiction were laid down 1 as under:—
(1) that courts in India cannot order blood test as a matter of
course;
(2) wherever applications are made for such prayers in order to
have roving inquiry, the prayer for blood test cannot be
entertained.
1 Goutam Kundu vs. State of West Bengal, AIR 1993 SC 2295: 1993
CrLJ 3233: 1993 CrLR (SC) 487: 1993(2) Crimes 481: 1993(3) SCC
418.
Practice & Procedure—Dismissal in default 537
(3) There must be a strong prima facie case in that the husband
must establish non-access in order to dispel the presumption
arising under Section 112 of the Evidence Act.
(4) The Court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have the
effect of branding a child as a bastard and the mother as an
unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
marriage came into existence as essential rites were not performed. 1
Dismissal in default
Delhi High Court 2 was of the view that an application for
maintenance, if it is dismissed for default of the appearance before
evidence is recorded, could be restored because the order of dismissal
was an administrative order and not a judicial order and the Magistrate
has power to set it aside. This case was subsequently considered by
Allahabad High Court, 3 and the Court had dissented from the view taken
by the Delhi High Court. It was held that an order passed under Section
125 Criminal Procedure Code cannot be deemed to be administrative
order. It is a judicial order because the revision lies against such final
order. Modification of the order can be made under the provisions of the
Criminal Procedure Code and for default in carving out the order of
maintenance the defaulter can even the sent to jail for the whole or any
part of each month’s allowance remaining unpaid after the execution of
the warrant. Therefore Allahabad High Court held 4 that an order of this
nature cannot be considered to be an administrative or executive order.
It is to be borne in mind that a petition filed under Section 125,
Cr.P.C. is not a complaint and the person who is arrayed as the opposite
party is not an accused. The proceedings under Section 125, Cr.P.C. is a
proceeding of a Civil nature in which the Magistrate can invoke the
inherent powers to recall his earlier order finally disposing a proceeding
of this nature provided sufficient grounds are shown. 5
2 Prema Jain vs. Sudhir Kumar, 1980 Crl.LJ 80.
3 Akhtari Begam vs. Ahmad Hussain, 1984 All Cr Cases (Summary
of Cases at page 85).
4 Pramod Kumar Mittal vs. Kanchan Devi, I (1988) DMC 159 All.
5 S.K. Alauddin @ Alai Khan vs. Khadiza Bibi @ Mst. Khodeja
Khatun, I (1992) DMC 268 Cal.
Disposing of the application under Section 125 of Criminal

Procedure Code merely on the basis of an affidavit, is an error in the
order of maintenance. 1
Divorced wife
Normally divorced spouse will only be living separately and the
question whether it is by mutual consent or not does not arise. Obligation
to live with the husband and sufficient reason for refusing to live with
the husband will arise only during subsistence of the marriage. The bona
fides of the husband in the offer to maintain the divorced wife if she
comes and lives with him itself is not a matter to be considered even
though patently the male fides is clear from the fact that divorce is
ordered at his instance. After divorce the wife is not bound to discharge
marital obligation including her company and submission to conjugal
rights of the husband. The husband has equally no right to request her to
come and reside along with as a condition precedent to payment of
maintenance Marital rights and obligations are available only during the
subsistence of the marriage. There is no question of showing good
grounds for separate residence. 2
The provision to award maintenance by a summary procedure to a
divorced wife has been incorporated in the new code by way of public
policy in order to avoid vagrancy. The only disqualification provided in
the case of a divorced wife are remarriage and ability to maintain herself.
Evidently these two conditions are there because they are not
inconsistent with the public policy. She need not satisfy any other
condition to make herself eligible for maintenance and the husband
cannot impose any condition in order to avoid liability. To ask for the
company of a divorced wife and make it a condition precedent for the
liability for maintenance is opposed to the entire provisions. 3
Double payment
Double payment of maintenance is not intended by law. If any
money has been paid or deposited towards payment of maintenance in
the divorce petition, the same is liable to be adjusted in the payment of
maintenance ordered under Section 125 Criminal Procedure Code. 4
1 Shankar Gohane (Gavale) vs. Kalpana Gohane (Gavale), 1999(1)

HLR 126 Bombay.
2 Velukutty vs. Prasannakumari, II (1985) DMC 447 Kerala.
3 Velukutty vs. Prasannakumari, ibid.
Practice & Procedure—Ex parte order 539
Efforts for re-union

If the wife on account of her past experience about the husband
has been scared so much that she is not even prepared to give a second
thought to the proposal to going back to the matrimonial home, then the
Court cannot with a view to settle the matrimonial dispute send back the
wife. If some thing untoword happens thereafter none of the parties
concerned in this litigation including the lawyers and the court itself
would be able to sleep with an easy conscience. Examining all witnesses
who have repeated the same story as that of the husband’s genuine desire
to get back the wife were unable to convince the Magistrate. It was held
that the learned Magistrate who had the additional advantage of viewing
witnesses before his own eyes was a better judge of the Character of the
witnesses and the tenor of their evidence. 1
Enhancement
In view of the ever increasing trend in the prince index of the
essential commodities the maintenance allowance granted to the
applicant deserves to be enhanced to meet the demand of cost of living. 2
The pendency of a Section 482, Criminal Procedure Code,
application may not therefore, be a bar for the wife to file an application
for enhancement of the maintenance amount. 3
Keeping in view the disability of the wife, who is said to be a
hump lady and the ever increasing trend in the price index of the
essential commodities it was held that the maintenance allowance
granted to the applicant deserves to be enhanced to Rs. 500/- per month
which shall be payable to the applicant from the date of the order of the
Judicial Magistrate. 4
Judicial notice can be taken of rising prices with the result that
the cost of bare existence is regularly rising, rather mercurially. 5
Ex parte order
It is a cardinal rule of interpretation of statutes that ordinarily
words in a statute must be given their plain, ordinary and natural
1 Lilaben Hazarak Chandbhai vs. Laljibhai Hirabhai Bhagat,

2 Durgwatiyabai vs. Govinddas, II (1995) DMC 58 MP; II (1995)
DMC 490 MP.
3 Bharat Sen vs. State of Uttar Pardesh, 1999(1) HLR 363 All.
4 Durguatiyabai vs. Govinddas, II (1995) DMC 58 MP; II (1995)
DMC 490 MP.
meaning in the absence of ambiguity. Where the language of a statute is

clear, the clear meaning must be given effect to deviation should be
resorted to only in a case where it is absolutely necessary to carry out the
scheme of the statute or to prevent mischief and advance remedy in
accordance with the true intention of the legislature. 1
On the basis of above preposition of law, it was held that a plain
reading of the proviso to Section 126(2) would leave no room for any
doubt that the period of three months is to be computed from the date of
ex parte order and not from the date of the knowledge. It could be seen
from the provisions of the Limitation Act of 1963 that whenever the
legislature intended to prescribe date of knowledge as starting point of
limitation it has specifically done so. The period limitation prescribed in
Article 123 of the Limitation Act is 30 days commencing from the date
of the decree, but where summons or notice was not duly served it has
been specifically provided that period of limitation has to be reckoned
from the date of knowledge. The expression “date thereof” in the second
part of the proviso to sub-section (2) of Section 126 of the Code can only
mean that the period of three month is to be reckoned from the date
of order. 2
First part of the proviso empower the Magistrate to proceed to
hear and determine the case ex parte, if he is satisfied that the person
against whom an order for maintenance is proposed is wilfully avoiding
service or wilfully neglecting to attend Court. Second part of the proviso
states that “any order so made” that is, any ex parte order so made, may
be set aside for good cause shown an application made within three
months from the “date thereof”, that is the date of the order. The view
accepted in some of the decisions is that unless the ex parte order is
properly or correctly made after arriving at the requisite satisfaction, it
cannot be regarded as an “order so made” and that bar of limitation
applies only if the “order so made” is sought to be set aside. In other
words, if the ex parte order is one wrongly passed or passed without
arriving at the requisite satisfaction or without due service actual or
attempted, it is not an “order so made” and hence bar of limitation
cannot apply or at any rate the “date thereof” must be interpreted as
“date of knowledge of the order”. This view loses sight of the
significance of the feature of the proviso viz., that it is only “an order so
made” which can be set aside and that too on an application if made
within the period of limitation and on good cause being shown. If an
illegal or even defective or irregular ex parte order is not an order “so
1 Damodaran vs. Chellamma, II (1987) DMC 114 Kerala.

2 Damodaran vs. Chellamma, ibid.
Practice & Procedure—Ex parte order 541
made”, it cannot be set aside by the Magistrate under the second part of
the proviso since, according to this view, it is only an “order so made”
which can be set aside. An ex parte order cannot be regarded as void or
non est. There is no lack of jurisdiction to pass an ex parte order since it
is not service or process which confers jurisdiction on the Magistrate
over persons. Logical conclusion of the view taken in the decisions
referred to above would mean that the remedy under second part of the
proviso would be available only against proper and valid ex parte orders
and not defective or irregular or even illegal ex parte orders. This
conclusion would lead to absurdity. such a result would not have been in
the contemplation of the Legislature. Whether the ex parte order is
defective or not, it can be set aside on good cause being shown, provided
the application is made within three months from the date of the order. 1
It is also open to the party aggrieved by the order to invoke
revisional jurisdiction of the Court of Session or the High Court under
Ss. 397, 399 or 401 of the Code. Until the order made ex parte is
annulled or set aside by resorting to any of the methods recognised in
law, the order is binding on the parties and cannot be treated as non-set
or null and void on the ground that the satisfaction of the Magistrate was
not well founded error was committed by the Magistrate in strictly
conforming to the requirement of the first part of the proviso in
proceeding to determine ex parte. 2
A person against whom such an ex-parte order has been passed
has the right to file an application before the Magistrate to set aside the
ex-parte order, provided the application is filed within a period of three
months from the date of the order. Even if there is delay in filing the
application, it is open to him to invoke Section 5 of the Limitation Act.
At the same time, remedy of the person who suffers an ex-parte order is
not confined to filing an application to set aside the ex parte order before
the Magistrate concerned. It is open to him to challenge the order by way
of revision before the Revisional Court in terms of Section 397 of
the Code. 3
In one case the husband was afforded more than ample
opportunities for making the payment did not pay the maintenance
pendente lite allowed to the wife under Section 24 of the Act. The Judge
1 Damodaran vs. Chellamma, II (1987) DMC 114 Kerala.

2 Damodaran vs. Chellamma, ibid.
Cri LJ 224.
Family Court thereupon rightly struck off the defence of the appellant
who was respondent in the divorce petition. On top of this the husband
for reasons best known to him did not appear on 5.1.1997 when the case
was fixed for evidence of the wife and instead resorted to the stratagem
of filling an application through a brother seeking adjournment on a
ground that was transparently manufactured. It was held that his
application was rightly dismissed by the trial Judge. Assuming that the
appellant husband had a right of cross-examination by absenting himself
he chose not to exercise that right. As he was absent he was rightly
proceeded against ex parte by the trial Judge. As the evidence of wife
consisting of her sole statement was found by the trial Judge to be
worthy of implicit reliance he committed no error not to speak of a
grievous error by acting upon her statement on oath and allowing her ex
parte decree of divorce on the ground of cruelty. There was no
requirement under the law that there should always be some
corroboration and if the evidence of a solitary witness is found worthy of
implicit reliance as in the instant case that could always be acted upon. 1
Exercise of writ jurisdiction

It would not be proper to exercise jurisdiction much less
extraordinary jurisdiction of this Court to interfere in such matters which
are left by the Legislature to the final judgment of the court below. It is
true that the jurisdiction of this Court under Article 227 of the
Constitution of India is very wide and very large. It is neither appellate
jurisdiction nor revisional jurisdiction. It is special extraordinary
supervisory jurisdiction invested in this Court, to correct flagrant
violation of law cure substantial miscarriage of justice. The jurisdiction
cane be invoked only in extraordinary cases where the courts below have
acted in disregard of the provisions of law or have refused to follow
jurisdiction vested in it or followed a jurisdiction which does not vest in
them. It is impossible to say that in such cases, the Magistrate and the
learned Session Judge have no jurisdiction to deal with the matter, even
if their findings both on law and facts or for a moment, taken to be
wrong, mere erroneous, decisions on facts and law will not furnish any
ground for any applicant to move the High Court for exercising
extraordinary power under Article 227 of the Constitution of India.
Therefore, it would be proper if in such cases the High Court acts with
some self-imposed limitation and self-restraint. 2
1 Om Prakash vs. Babli, 1999(1) HLR 292 Rajasthan.

2 Hem Chandra Shridhar vs. Hemangi Hemchandra Nair, I (1983)
DMC 1 Bombay.
Practice & Procedure—Forum of Appeal 543
Ex-parte order
The ex-parte order of maintenance has to be passed only on sound
principles of law and not on surmises and conjunctures and it should be a
reasoned order as giving reasons is one of the fundamentals of good
administration of justice. 1
Finding of civil court

Once, there is a clear finding of the Civil Court on the point of
desertion, neglect and cruelty which is answered in the negative it is not
open for the Criminal Court to give different finding on the same issue.
The findings recorded by the Civil Court are binding on the Criminal
Court for the purpose of deciding application for maintenance under
Section 125 of Criminal Procedure Code. 2
Forum of Appeal
In view of Orissa Amendment provision of Section 115, Civil
Procedure Code there cannot be any doubt that if the valuation of the
proceeding/suit is more than rupees one lakh, an appeal or revision, as
the case may be, is to be filed in the High Court and in other cases,
revision is to be filed before the District Judge. Against a final decision
in any proceedings under the Hindu Marriage Act, appeal is to be filled
before the Court on the basis of pecuniary jurisdiction. In many cases, it
has been observed that where no valuation has been given in proceeding
under the Hindu Marriage Act, the forum relating to filing of appeal and,
consequently, revision would depend upon the notional valuation. 3
Similar view has been expressed by another High Court 4
Where an appeal is filed before the District Judge, evidently, a
second appeal is maintainable before the High Court subject of course, to
be limitations envisaged in Section 100, Civil Procedure Code. Since
from the aforesaid decisions, particularly that of the Orissa High Court,
it is apparent that an appeal can be filed before the District Judge if the
valuation is within the pecuniary limit envisaged, there is no rhyme or
reason why a revision cannot be filed before the District Judge against
interlocutory orders where the valuation is rupees one lakh or less. 5
1 R.B. Gurubasavaiah vs. M.G. Preme, II (1992) DMC 520 Ker.

2 Tulsidas Madhavdas Sharma vs. Shantiben Tulsidas Sharma,
3 Paras Ram vs. Janki Bai, AIR 1961 All 395 (FB).
4 Tarabati Pandeyani vs. Jogendra Pandey, ILR 1978 Cuttack 559
(DB)
5 Basanti Bose vs. Civil Judge (Senior Division), Balasore, I (2001)
DMC 113, Orissa.
Though under the Hindu Marriage Act a proceeding can be

initiated in the Principal Civil Court of the District in view of the
Notification such proceedings can be filed before and decided by the
Subordinate Judge (presently, known as Civil Judge, Senior Division).
The appeal under Section 28 is to be filed as if the appeal is against the
decree of the Court deciding the matter. If in other cases, appeal can be
filed before the District Judge depending upon the valuation, it is not
understood as to how decision of the Civil Judge (Senior Division) in a
proceeding under the Hindu Marriage Act cannot be challenged before
the District Judge subject, of course, to the question of pecuniary jurisdiction.1
If appeals against all such decision of the Civil Judge (Senior
Division) irrespective of the question of valuation could be filed only
before the High Court, there would not have been any necessity for the
aforesaid Division Bench of the Court 2 to consider the maintainability of
an appeal on the basis of the valuation. In this case it was apparent that
the District Judge and obviously the Lawyers who were representing the
parties before the District Judge without noticing any of the decisions
holding the field, jumped to the conclusion without any rhyme or reason
that an order passed by the Civil Judge (Senior Division) in a proceeding
under the Hindu Marriage Act cannot be challenged in appeal before the
District Judge. It appeared that even the Counsel, who was appearing for
the petitioner had so conceded before the Appellate Court regarding non-
maintainability of the appeal/revision before the District Judge. But it
was held that since the concession of a Lawyer on a question of law is of
no consequence, it has to be ignored. 3
Hearing the parties

It was the duty of the Presiding Officer or the learned Judge to
record his satisfaction after hearing the parties and making such inquiries
as may be necessary. Read and re-read the whole order, there is not a
slightest reference that the parties were heard except recording the both
the parties are present. It is not reflected in the impugned order that the
learned Judge has applied his mind to the basic requirements to be
fulfilled before acceptance of a compromise petition. There is neither
hearing nor the required satisfaction. It was held that to say the least the
impugned order is perilously bordering on perversity and it is liable to be
quashed on this short ground. 4
1 Basanti Bose vs. Civil Judge (Senior Division), Balasore, I (2001)

DMC 113, Orissa.
2 In Tarabati Pendayani ibid
3 Basanti Bose vs. Civil Judge ibid.
4 Banani Deb vs. Debabrata Deb, 1999(2) CCC 122 Gau (DB).
Practice & Procedure—Ingredients of desertion 545
Ingredients of desertion
The essential ingredients that constitute the matrimonial offences
of desertion take on different complexions, human nature and its
complexities being what they are. The simplest form of desertion,
defined by the commentators as actual desertion involves the fact of
separation (factum desirandi) and the intention to desert (animus
desirandi). This contemplates a situation where the spouses have
physically parted company, in the first instance and it is demonstrated
that there is an intention on the part of one of them to withdraw from the
company of the other. In order words, it is not merely a fact that the
parties are staying apart from each other for sometime, which may be
due to a variety of reasons, but the fact that this is accompanied by the
intention to put and end to the married state and to the marital
obligations. A slight variation of this situation could arise in case where
the offending spouse and, in fact, the guilty one is not the party who has
departed but the one who stays behind, such as the familiar situation
where, for reasons of sever mental and/or physical cruelty, it becomes
unsafe or impossible for the wife to continue to live with her husband
and she is forced to leave. Undoubtedly, in such a situation, it would not
be open for the husband to contend that the wife has been guilty of
desertion. There also arise the restricted category of cases where Courts
have held that wilful neglect of an extreme type could be construed as
desertion, a typical situation being one where the spouses, though
residing under the same roof, one of them has nothing to do with the
other and virtually puts an end to the marital status, though neither of
them have physically moved out of the premises. 1
Desertion, as pleaded or alleged, may assume one or more of the
aforesaid complexions and it is, therefore, essential for the Court to
examine the material on the basis of which the charge is sought to be
established. It is equally necessary to guard against certain familiar
situations to which there exists a total defence, for instance, where it is
alleged that the wife left the matrimonial home without the husband’s
consent and refused to return in spite of several requests. It would be a
valid defence if the Court is satisfied that the grounds which have forced
the wife to live separately are genuine and cogent. It is equally well-
settled law that where one spouse has left without any valid justification
that the law does not insist on the other spouse making any special of
undue efforts to bring the deserting spouse back. It is true that by making
such efforts, the innocent party would establish its bona fide, but merely
1 Kishorilal Govindram Bihani vs. SOU. Dwarkabai Kishorilal

Bihani, II (1992) DMC 578 Bom.
because no such efforts were made, it would be incorrect to presume that

there is a acquiescence of the act of desertion. 1
Undoubtedly, it is not totally obligatory on the part of one spouse
to keep on persuading the party that has left him to resume cohabitation.
But in the situations where this is done, it would certainly be an
indication of bona fides. It would also be highly supportive evidence of
the fact that the party concerned is not the guilty one and was not
responsible for the breakdown of the relationship. 2
Inherent powers
Court in rare cases interferes with the orders of lower Court in
exercise of powers under Section 482, Criminal Procedure Code where
Court is satisfied that to prevent abuse of process of Court or otherwise
to secure ends of justice the interference would be necessary. 3
In a suit for maintenance interim maintenance can be granted in
exercise of inherent power. Wrong nomenclature by mentioning the
petition to be one under section 24 of the Hindu Marriage Act would not
defeat the relief to the wife and Court is not deprived of the exercise of
inherent power under Section 151 Civil Procedure Code. 4
Every Court has inherent power to grant relief during the
pendency of the proceedings if the interest of justice so requires. 5
Jurisdiction of criminal Courts

A harmonious interpretation of Section 3, 7, 8 and 20 of Family
Courts Act, clearly indicates that there is no bar against the parties from
approaching other Courts outside the jurisdiction of the Family Court.
The exclusion of the jurisdiction of the Courts is confined to the area
over which the family Court exercises jurisdiction.
Though the wife submitted herself to the jurisdiction of the
Family Court by entering appearance and filing counter, it is her right to

3 Varchand vs. Guddibai, 1999(1) HLR 635 MP.
4 Somanath Jena vs. Sabitri jena, I (1987) DMC 92 Orissa: 1998(2)
CCC 355 (Ori); see also Suresh Chandra Biswal @ Biswalo vs.
Maluni Biswalo, 1985(1) OLR 486
5 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC
185 Del
Practice & Procedure—Limitation for minors 547
seek independent relief for maintenance under Section 128 Cr.P.C. is not
taken away. 1
Legal Aid
Legal aid is meant for the purpose to assist the persons of the
category of the petitioner not to suffer injustice for lack of funds, or
legal assistance. It was therefore directed that under such circumstances,
if so required petitioner may apply for legal aid and in that case it may
be granted to her in accordance with the provision, but expeditiously and
preferably within fifteen days from the date of her application. 2
Lien on property
It is only a right to receive maintenance etc. from the profits of
immovable property that could be enforced against the transferee of that
property that too in the event of the same being transferred to him
gratuitous or if transferred for consideration, he had notice of the said
right and therefore, the learned counsel in right in contending that the
provisions of Section 39 of the Transfer of Property Act, 1882 cannot be
made use of for creating a charge on the property which is still in the
hands of the husband because Section 39 authorise overreaching the
property in the hands of the transferee. 3
Limitation for minors

Section 6 dealing with legal disability is applicable in view of
Section 29(2) of Indian Limitation Act, 1963 as the application of
Section 6 there of is not specially excluded under Chapter IX of Criminal
Procedure Code. The minors are not sui juris and the mere fact that they
can be represented by mother, father or other guardians is of no
consequence. Section 6 of the Indian Limitation Act, 1963 keeps the
limitation in abeyance if the person is a minor, insane or an idiot. In so
far as the other order of maintenance under Chapter IX of Criminal
Procedure Code is concerned, once a minor attains majority and if the
said person after attaining of majority is not suffering from any mental
or physical handicap, the maintenance order passed in his favour
automatically disappears. Even then for arrears accrued by the time of
his attaining the majority, petition can be filed within one year of the
attaining of said majority. But, so long as the said minor does not attain
the majority for the enforcement of the order of maintenance, there can
be no fetter of limitation prescribed under the 1 st proviso to Sub-section
3 of Section 125 Criminal Procedure Code and the said provision has to
1 P. Jayalakshmi vs. V. Ravichandran, I (1992) DMC 273 AP.

2 Madhu vs. State of Delhi, II (1999) DMC 660 Del.
3 Biker Singh vs. Gurmito, I (1982) DMC 167 P&H.
be read down that the said limitation is only applicable to major-

maintenance holders and not minor-maintenance holders. 1
Maintenance by agreement
An agreement to maintain an illegitimate child, for which the
Mohammedan Law as such makes no provision, will not have the effect
of defaulting the provisions of any law. As a matter of fact, maintenance
of illegitimate children has been statutorily recognized under Section 488
of the Code of Criminal Procedure in our country and it is in consonance
with this wholesome public policy that the offspring born under such
circumstances are to be provided for and should not be left to the
misfortunes of vagrancy and it attendant social consequences. It was
therefore, held that the consideration for the agreement if permitted
would not defeat the provisions of any law. 2
Section 127, on its plain reading, furnishes the grounds on which
the Court passing an order under Section 125, Criminal Procedure Code
can modify that order and enhance the maintenance on proof of a charge
in the circumstances, but such an order for alteration of allowance can be
made only from the date of order passed under this section and not from
the date of application seeking alteration. Under Sub-clauses (2) to
Section 125, Criminal Procedure Code the legislature has left it to he
discretion of the Magistrate to award maintenance from the date of
application for maintenance though normally it shall be payable from the
date of the order in the petition. But under Section 127, Criminal
Procedure Code no such discretion is left to the Magistrate to pass such
order in the application seeking alteration of enhanced maintenance,
from the date of filling of that application, since the legislature itself did
not provide, under Section 127, Criminal Procedure Code that the
Magistrate could date back the order or alteration to the date of
application. Hence it is not open to the Magistrate or the Revisional
Court to exercise such jurisdiction and enhance the compensation from
the date of filing of that application. The Courts have to act within the
strict limitations set out for the exercise of its jurisdiction and they
cannot over-step the same on any equitable grounds. 3
Though there was an agreement or compromise upon which the
first application under Section 127 of the wife was disposed of it will not
operate as estoppel or waiver in case of subsequent application under
1 Laxmi vs. Nakka Narauan Goud, I (1994) DMC 224 AP.

2 Sukha vs. Ninni, AIR 1966 Raj 163: 1966 Raj LW 195.
3 Pilli Venkanna vs. Pilli Nookalamma, 1999(1) HLR 337 AP.
Practice & Procedure—Modification of order 549
Section 127 in a changed circumstances. Section 127 application is for

modification of the order passed under Section 125 in a changed
circumstances. That is the provision of law and no agreement can put a
bar for such an application or subsequent application under Section 127
while there is a changed circumstances. 1
The applicant can approach the Civil Court for claiming
adjustment in case any question regarding the payment of maintenance
arose as observed by the learned Session Judge. The order of the learned
Session Judge is just and proper and needs no interference. Counsel
made a submission though the objection was raised in a proceeding
initiated by wife under Sub-section (3) of Section 125. The learned
Magistrate ought to have treated the same as one under Section 127. I am
unable to accept this submission. It would not have been in the fitness of
things. The applicant ought to have moved the Court for any alteration or
modification of the quantum in view of the maintenance awarded by the
Civil Court. The learned Magistrate was, therefore, justified in not taking
into account the contention in a proceeding initiated by wife under Sub-
section 3 of Section 125 of the Code. 2
Section 125 is a provision to protect the weaker of the two
made against the deserter, it will operate until vacated or altered in terms
maintenance is modified or cancelled by a higher Court or is varied or
vacated in terms of Section 125(4) or (5) of Section 127, its validity
survives. It is enforceable and no plea that there has been co-habitation
in the interregnum or that there has been a compromise between the
parties can hold good as a valid defence. 3
Relying on the ex parte divorce decree, it was urged that since the
competent Civil Court has now dissolved the marriage by decree of
divorce and that too on account of desertion by the wife, the petitioner
will not be entitled to maintenance. Whether or not a wife would be
entitled to maintenance, after a decree of divorce passed by a competent
Civil Court on the ground of desertion by her, need not be gone into by
this Court in this matter for the simple reason that, an appeal preferred
from the said ex parte decree was pending. Therefore, it was held, the
1 Joydel Kumar Biswas vs. Maduri Biswas, I (1996) DMC 12

Calcutta.
2 Ganpatrao vs. Jyoti, II (1988) DMC 65 Bombay.
3 S. Ragendran vs. Revathy, II (1994) DMC 448 Madras.
decree of divorce has not assumed finality. In is subjudice in the Court

and this Court may even set aside the same. Therefore, assuming that the
wife is not entitled to maintenance after decree of divorce on the ground
of desertion by her, in the facts of the present case, she cannot be denied
maintenance on that ground. As per Explanation (b) to Section 125 of the
Code a “wife” means a person who has been divorced by or has obtained
a divorce from her husband and has not remarried. In the facts of this
case, it was held that there is no difficulty in granting maintenance
in her. 1
In an English case it was held that a distinction has to be drawn
between the restrictions imposed by the Matrimonial Causes Act 1973 on
varying lump sum orders or property adjustment orders which cannot be
varied, and the power to set aside an order which has been obtained by
fraud or mistake, or by material non-disclosure. The essence of the
distinction is that the power to very usually reflects changes of
circumstances subsequent to the date of the order, whereas the power to
set aside arises when there has been fraud, mistake or material
nondisclosure as to the facts at the time the order was made. From the
point of view of convenience, there is a lot to be said for proceedings of
this kind taking place before a judge at first instance, because there will
usually be serious and often difficult issues of fact to be determined
before the power to set aside can be exercised. These can be determined
more easily, as a rule, by a judge at first instance. 2
Necessary parties
Once, it is found that a necessary party has not been impleaded
and in any case even the parties who were impleaded have not been
served as per requirements of law, the order suffers from serious
jurisdictional errors and a glaring material irregularity, calling for
immediate remedial action by this Court. 3
Neglect & refusal

Section 488 Criminal Procedure Code provides that if any person
having sufficient means neglects or refuses to maintain his wife or
children, he will be liable to pay a monthly allowance for their
maintenance under the provisions of Section 488 Criminal Procedure
1 Mangala Suresh Kanase vs. Suresh Dadu Kanase, II (2000) DMC

527 Bombay.
2 Robinson vs. Robinson, (1982) 2 All ER 699: (1983) I DMC (BJ) 6:
Smethurst vs. Smethurst, (1977) 3 All ER. 1110: (1983) II DMC
(BJ) 21; Griffiths vs. Griffiths, (1985) DMC (BJ) 11.
3 Akbari vs. Sabri, II (1992) DMC 531 P&H.
Practice & Procedure—Object of summary remedy 551
Code. No order for maintenance can be passed under the Section unless
neglect or refusal to maintain by the husband or father is proved. The
provision has been made with an object to grant the maintenance to the
deserted wives and children and cannot be used as a measure of and a
liver to harass or pressurize a bona fide husband. The onus of proof lies
upon the wife to show that she was justified in living separately for
claiming maintenance. The existence of circumstances in a particular
case may justify the wife to claim maintenance by living separately but
in all other cases it has to be presumed that a wife under the normal
circumstances is bound to live with and under the roof and protection of
her husband. This would imply the wife to prove the existence of
circumstances justifying her not living with the husband. If the wife fails
to prove that she had been forced to live separately or that the doors of
the matrimonial home have been shut by the husband or that her living
with the husband is dangerous to her life and health or that the husband
has incurred some disqualification under any statute to have her
company, she would not be entitled to the grant of maintenance. Neglect
or refusal need not be specific and can be inferred from words, conduct
and circumstances of the matrimonial life of the parties. Existence of
justifiable grounds for wife’s refusal to live with her husband can be a
ground to presume the neglect attributable to the husband to maintain his
wife. A woman is however entitled to live with her husband with that
amount of decency and dignity which prevails in her class and the
environments of the society to which she belongs. If the treatment of the
husband does not permit wife to lead such a decent an dignified life the
same may amount to neglect or/and refusal to maintain her under the
peculiar circumstances of each case. The circumstances justifying the
wife to live separately cannot be exhaustive but can be only illustrative.
The Courts below adjudicating upon the disputes under Section 488
Criminal Procedure Code have to keep in mind the facts and
circumstances of each case. keeping in view the class, social status, and
the position of the parties which they hold in the society to determine
neglect or refusal to maintain. It the wife fails to prove that the husband
neglected or refused to maintain her, she will not be entitled to claim any
maintenance. 1
Object of summary remedy

This provision provides a speedy remedy against starvation by
way of a summary procedure. It is not co-extensive with the civil
liability of a husband. It gives effect to the fundamental and natural duty
of a man to maintain his wife. The basic idea behind the provision is that
1 Satya Devi, vs. Gurdeep Singh I (1988) DMC 267 J&K.

no wife should be left helpless so that she may be tempted to commit

crime. This provision enables a Magistrate to take summary action for
prevention of destitution. 1
A proceeding under Section 125 of the Code of Criminal
Procedure is an independent proceeding. Section 125 gives effect to the
fundamental and natural duty of a man to maintain his wife, children and
parent when they are unable to maintain themselves. It is applicable and
enforceable whatever may be the personal law the persons concerned are
governed. Section 24 and 25 of the Hindu Marriage Act, 1955 do not
stand in the way of relief under Section 125 Criminal Procedure Code
Section 4(b) of the Hindu Adoptions & Maintenance Act, 1956 does not
override the provisions of Section 125. Similarly, the provisions of
Section 18 or 20 of the Hindu Adoptions & Maintenance Act, 1956 have
not affect the right of the wife or the child under this Section. The
existence of a previous order for alimony does not oust the jurisdiction
of the Magistrate to order maintenance under Section 125 of the Criminal
Procedure Code. The Section contains no direction that an order under
Section 125 cannot be made if there is order of Civil Court for
maintenance. It cannot, therefore, be said that the present application
under Section 125 of the Criminal Procedure Code is not maintainable
simply because an order of alimony pendente lite has been passed under
Section 24 of the Hindu Marriage Act in a matrimonial proceeding
between the parties. There is also no question of staying the proceeding
under Section 125 Criminal Procedure Code till disposal of the
matrimonial suit. The amount paid as alimony pendente lite in the
matrimonial suit may, however, be adjusted against the maintenance
payable by the impugned order. 2
Omission to reply the notice

Conduct in certain circumstances may include silence as well. But
the silence by itself, to amount to conduct, must be what may be styled
‘positive-silence’ and in the context of a clear duty to speak. Silence, it
is said, is golden except where there is a clear duty to speak. It is true
that mere silence, without, more, might not be susceptible of
implications of conduct admitting of any adverse inference. Under
normal circumstances it might be too much to say that a man by merely
omitting to answer a letter must be held to admit the truth of the
statements contained therein. There is, it is said, no general duty cast
upon a recipient of letter to answer it and his omission to do so does not
1 Purnamasi Pradhan vs. Suresh Pradhan, II (1985) DMC 475

Orissa.
2 Gossai Chandra Das vs. Beauty Das, II (1992) DMC 274 Cal.
Practice & Procedure—Pleading 553
amount to any admission of the truth of the statement contained in the

letter. But it may be somewhat different where the relationship between
the parties and the context in which and the purpose for which the letter
is addressed are all such that a reply might properly be expected. There
may be conceivable cases where if the written communication does not
draw for the an indignant repudiation it may be a circumstance which
may not altogether be ignored in assessing the truth or otherwise of the
statements contained in the communication. The conduct indicated by
silence must, of course, be assessed with all other relevant circumstances
and the only fair way of stating the rule of law is that in every case one
must look at all the circumstances under which the letter was written and
determine whether the circumstances are such that the refusal to reply
amounts to a piece of conduct which might admit of and carry with it an
element of admission. 1
Pleading
It is the fundamental principle in the law of pleadings that no
amount of evidence can be looked upon in support of a plea having no
foundation in the pleading, and a decision of a case cannot be based on
grounds outside the pleadings. If the wife had pleaded that she has spent
for the marriage and what amount she has spent and what are the items of
expenses for which she spent, the first defendant would have had an
opportunity to meet this case of her’s by filing a written statement. In
this position only because she has stated in the courses of her evidence
that she has spent for the marriage a decree cannot be passed in
her favour. 2
Apart from there being no pleadings, the evidence also is not
sufficient to come to a conclusion that she has spent any definite amount
either for jewels or for other expenses. Thus viewed, the finding of the
trial Court that she has spent Rs. 20,000/- for jewels and Rs. 5,000/- for
expenses cannot be sustained. Here it may be relevant to note that as per
Section 20 of the Hindu Adoptions & Maintenance Act besides father,
mother also is bound to maintain her daughter. 3
The facts stated in the application under section 125 and the
affidavit filed in support thereof did not indicate existence of any such
custom. The argument that the parties have to lead evidence and
1 Shankerappa vs. Sushilabai, II (1984) DMC 414 Karnataka: (1984)`

Kant LC 265: AIR 1984 Kan 112.
2 R. Durairaj, vs. Seethalakshmiammal, AIR 1992 Madras 242:
(1992) 1 LW 574.
3 R. Durairaj, vs. Seethalakshmiammal, AIR 1992 Madras 242:
(1992) 1 LW 574.
therefore the absence of such averment at this stage is inconsequential is

unacceptable because the issue of interim maintenance must be decided
on the basis of material available on record and not on the hypothesis of
material likely to be adduced at the time of parties’ evidence. In absence
of averment of custom in the petition and the affidavit filed by non-
applicant there was no material before the magistrate to come to a prima
facie conclusion of the status of non-applicant as petitioner’s wife. 1
Pleading and libel

Section 195 of the Criminal Procedure Code principally deals
with prosecution for contempt of lawful authority of public servants for
offences against public justice and for offence relating to document
given in evidence. It is only that class of offences which go to affect the
administration of justice and the sanctity of the evidence and documents
tendered before the Court which are covered under Section 195 of the
Criminal Procedure Code and if such offences do take palace in a
proceedings before the Court, then no other court shall take cognizance
of such offences as provided under Section 195 of the Criminal
Procedure Code, except on a complaint in writing of that Court or of
some other Court to which that Court is subordinate. 2
Therefore, section 195 of the Criminal Procedure Code would not
apply when the allegations per se defamatory have been made in writing
under the signature of the party and, further, he has deposed on oath
before the Court making defamatory allegations against his wife. These
allegations constitute the offence of defamation per se and is a non-
cognizable offence for which the wife is entitled to seek remedy by way
of private complaint. 3
Pleadings and proof

It appears that in the written objection the petitioner has not
stated that she has means to support herself and her daughter and did not
even make any such allegations in his evidence nor was it suggested to
the opposite party when she was examined as witness that she has means
to support herself and her child. In the situation even though the learned
Magistrate has not recorded a finding on this point still it does not
appear that it has causes any failure of justice and therefore there need
not be any revisional interference by this Court. 4
1 Naresh Chandra vs. MST. Reshmabai, I (1992) DMC 46 MP.

2 Chakor Maganlal Raool vs. Prerana, I (1986) DMC 258 Bombay.
3 Chakor Maganlal Raool vs. Prerana, ibid.
4 Sambhunath Jaiswal @ Sambhu Jaiswal vs, Anjana Jaiswal,
II (1990) DMC 354 Cal.
Practice & Procedure—Presumption of marriage 555
Where the wife had miserably failed to prove that the husband
had been cruel to her or that she had justification to live separate from
him, she was not entitled to any maintenance allowance and the petition
was rightly dismissed by the learned Magistrate. 1
Precedent
The late Lord Reid said in an address in 1971 that, in the search
for a middle way between certainty and justice, judges must prevent
precedent becoming master, and with this in view a court should have
regard to common sense, legal principle and public policy in that order.
While remembering that common sense may not always be common to
all men or women, and that it may very from generation to generation. 2
Presumption of litigation
Under Section 112 of the Evidence Act there is a presumption
that if a child is born during continuation of a valid marriage, it shall be
the conclusive proof that the child is the legitimate issue of the husband
unless it can be shown that the parties to the marriage had no access to
each other at any time when the child could have been begotten. 3
Presumption of marriage
The husband himself has admitted that the wife lived with him
after marriage. It is difficult to believe that a girl will live in her
husband’s house for such a long time without any marriage having taken
place. He has further admitted that she has been holding out that she was
his wife. If she were not, he would not allow her to do so. He cannot be
asked to take advantage of his own fraud. In such a case, even after the
passing of the Hindu Marriage Act, 1955, the doctrine of factum validity
should be invoked. If the parties are recognized as man and wife, there is
a strong presumption in favour of the validity of marriage from and
ceremony of the marriage and the legitimacy of its offspring. 4
In another case it was observed that where a man and woman had
lived together as man and wife, the law will presume, until the contrary
is proved that they were living together by virtue of a legal marriage and
not in concubinage. Such presumption can be rebutted only by showing
1 Shareef Ahmed vs. Hanifa Begum, I (1989) DMC 150 All.

2 Per Sir George Baker in Smethurst vs. Smethurst, (1977) 3 All ER.
1110: (1983) II DMC (BJ) 21.
3 Mahesh Kumar Shrivastava vs. Shobha Shrivastva, I (1982) DMC
86 MP.
4 Maujilal vs. Mussammas Chandrawati Kumari, 38 IA 122
that the marriage was most highly improbable and not reasonable
possible, marriage can be proved and intention to enter into wedlock. 1
After all rites and ceremonies only serve to provide proof of
marriage as registration does. It is otherwise very difficult after some
lapse of time to lead a Pandit to the witness box to prove that the
marriage had been solemnized. No documentary evidence is even
possible to find. Many of the witnesses disappear meanwhile. No
evidence the hard fact of living together survives. In this case the
husband has not been able to displace such a presumption based upon his
own conduct. It was therefore, hold that the marriage of the parties was
validly solemnized. 2
Proof of marriage
No rule of construction warrants that the Court should presume
existence of a custom which the wife chooses not to plead either because
there is no such custom of for reasons beat known to her. Traditional
form of Hindu marriage is not by exchange of garlands. It requires
certain essential ceremonies like ‘Hom’ and ‘Saptapadi. Therefore unless
the spouse states that such form of marriage by exchange of garlands is
sanctioned by custom in her caste or community no inference of a valid
marriage having taken place can be drawn. The facts stated in the
application under section 125 and the affidavit filed in support thereof
did not indicate existence of any such custom. The argument that the
parties have to lead evidence and therefore the absence of such averment
at this stage is inconsequential is unacceptable because the issue of
interim maintenance must be decided on the basis of material available
on record and not on the hypothesis of material likely to be adduced at
the time of parties’ evidence. In absence of averment of custom in the
petition and the affidavit filed by non-applicant there was no material
before the magistrate to come to a prima facie conclusion of the status of
non-applicant as petitioner’s wife. 3
In another case the impugned order was bristling with surmises
like the unsigned stamps paper produced by wife must have been
executed by the husband but he cunningly omitted to sign it to defraud
her, and that in the photograph of marriage produced with the application
the face of the green is not clearly visible because the took advantage of
the raised hand of the bride to conceal his face. It was held that the
principle that the judge is aided by his life experience in evaluation of
1 Rajagopal Pillai vs. Pakkaim Ammem, 1968 MLJ 411.

2 Ashok Kumar vs. Usha Kumari, II (1984) DMC 210 Delhi.
Practice & Procedure—Proof of marriage 557
evidence referred to by Additional Session Judges does not permit free

flight of imagination which is likely to destroy the fabric of due process
of law. Even if all that is assumed for argument’s sake it only proves that
the parties intended to marry by traditional Hindu form as mentioned in
the unsigned and undated stamp paper yet instead of going through the
essential ceremonies of Hindu marriage they resorted to exchange of
garland in a temple, which does not constitute traditional Hindu
marriage. In such circumstances, even if the parties so intended non-
applicant did not attain the status of applicant’s wife as the material or
record does not show that their caste custom permits the marriage by
exchange of garlands. 1
The position hence emerges that a Gandharva form of marriage is
not ipso facto void if it is accompanied with the usual ceremonial rites.
Since that is so, it may become necessary to establish, in the event of
challenge, that the marriage was accompanied with such rites. 2
Strict proof of marriage and the standard of proof required in
matrimonial suits the same standard of proof was not required in
proceedings under Section 125 Criminal Procedure Code which were
more or less a summary nature. In a case under Section 125 Criminal
Procedure Code the Courts should not be too rigid, dogmatic and
technical in evaluating the over all evidence on record. On the contrary
the whole approach should be pragmatic keeping in view the status of the
parties the, social environment in which they live and their illiteracy and
backwardness, if any. 3
In proceeding under Section 125 of the Code of Criminal
Procedure only this much is to be proved that there has been marriage
between the two and not the woman had been putting up with the man as
his mere “Mistress”. In proceedings under Section 125 of the Code of
Criminal Procedure strict proof of marriage is not required. Strict proof
of marriage is required if there be a suit for declaration by the plaintiff
that the defendant is not his wife and that she should not claim herself to
be wife or if there be proceedings under the Hindu Marriage Act
between them. 4
It has been held that evidence to the effect that the couple was
living as husband and wife was enough to substantiate the claim for
maintenance even in the absence of proof of the performance of

2 Dukihia Naik vs. Basanti Dei, II (1994) DMC 431 Orissa.
3 Shiv Narain vs. Dasodiya, II (1994) DMC 554.
4 Vinod Kumari vs. Surinder Singh, 1999(1) HLR 444 P&H.
Saptapadi etc. 1 The quantum of proof necessary to establish a marriage is

not rigid and that it suffices, so far as the claim of maintenance is
concerned, only to establish that the marriage had been gone through.
Indeed, even when the marriage is not proved, it is sufficient to establish
that the parties were living as husband and wife and were recognised as
such by the community where they lived. 2 In another case the evidence
of petitioner’s father was that though he himself had not gone with the
Barat being busy in marriage of his other son he had entrusted the task of
performing petitioner’s marriage to one of his relations and petitioner’s
Barat returned back with the bride and thereafter they lived as husband
and wife. It was held that the finding of the Revisional Court was
perfectly legal as the standard of proof of marriage u/sec. 125 Cr.P.C. is
not so high as in case of prosecution u/Sec. 494, 497, or 498 I.P.C. 3
There was a custom in the community of ‘Nata’ marriage. It was
then proved by the evidence of the wife that ‘Nata’ marriage was
solemnised after performing the required ceremonies. It was, therefore,
held that Applicant had successfully established her status as wife. The
proceedings under Section 125, Criminal Procedure Code are summary in
nature. The object is to provide swift and summary remedy to a
neglected wife. In such proceedings, the standard of proof required for a
marriage is not so high as is required in connection with the proceedings
under the India Penal Code for the offence of Bigamy. 4
The case of the petitioner was that she was residing in the District
of Dhanbad with her father and when the application was presented she
was residing there with his brother. Therefore, the place of marriage was
quite irrelevant and only because she did not state the place where she
was married with the opposite party, her story of marriage could not be
disbelieved, especially when in course of evidence, the witnesses
examined by her had stated that her marriage with the opposite party was
performed at the place of her father at village Bhera in the district of
Bhagalpur and therefrom she was taken to Mohalla Ishaq-chak of
Bhagalpur town where the family of the opposite party was then and
even now, was residing. The Principal Judge had disbelieved the
evidence of the petitioner, simply because she failed to name the priest
and the barber who had participated in the marriage. This can hardly be a
1 Sudama Prasad Pyasi vs. Shail Bala, II (1994) DMC 325 MP.
2 Dukihia Naik vs. Basanti Dei, II (1994) DMC 431 Orissa.
3 Jalandar Gorakh v. Sobhha (1972) 74 Bom LR 755; Sadhu v.
Sarathibala , 1985 Cr.LJ. 979 (Cal).
4 Roopsi @ Roop Singh vs. State of Rajasthan, II (1999) DMC 318:
1999(1) HLR 622 Raj.
Practice & Procedure—Proof of marriage 559
ground for disbelieving the factum of marriage, because every bride or

bridegroom is not expected to recollect the name of the priest or barber
even after lapse of twenty years of the marriage. 1
It is true that under section 50 of the Evidence Act, the conduct
of the parties can be taken into account to find out whether they are
husband and wife so if a man and woman live together as husband and
wife and treated as such by the community and the man treated the
woman as his wife then there will be presumption that they are husband
and wife but Section 125 debar the husband to second marriage without
having divorced the first wife and this presumption can be drawn in the
case of first wife and not for the second wife. 2
Regarding the fact that she was not informed that the non-
petitioner had first wife nor had any knowledge when she married will
not he in the petitioner as per the intention of the legislature as the
provision does not apply to a de facto wife where the marriage is void ab
initio. In this case admittedly the non-petitioner has his first wife and the
illegitimate son had become major. Therefore it was held that the
petitioner was not the wife of the non-petitioner within the meaning and
scope of Section 125 and was not entitled to maintenance. 3
Executing a registered document and making a declaration therein
that the executants would live as husband and wife would not confer
upon them the status of a husband and wife as it is not one of the
recognized forms of marriage for a Hindu. Nor is it possible to hold that
first respondent marriage the petitioner under the Special Marriage Act.
Here execution of a registered document does not amount to valid
marriage. When P.W.1’s evidence does not reveal any solemnization of
marriage with proper ceremonies and in due form, it is difficult to accept
her case that she has the status of a wife. To constitute traditional
marriage involving the fire and performing Saptapadi around the sacred
fire were considered by the Supreme Court as the basic requirements.
But there can be marriages without observing the above two rites if the
custom prevailing among the community do not insist upon them. 4 But
P.W.1 does not say anything about a customary marriage. She relies only
on Agreement and no other evidence to prove the marriage. It was
therefore held that the learned Session Judge went wrong in holding that
the unequivocal declaration in Agreement is sufficient to uphold the
marriage set up by her and she is entitled to maintenance only merely on
2 Surjeet Kaur vs. Hardam Singh, I (1992) DMC 226 Raj.
3 Surjeet Kaur vs. Hardam Singh, ibid.
4 Sumitra Devi vs. Bhikan Choudhary, AIR 1985 SC 765; relied.
the strength of said document. When the wife has no case that she and
the petitioner married under the Special Marriage Act and Agreement
cannot be construed as proof of a valid marriage between them, a mere
declaration in the agreement would not be sufficient to hold that she is
the legally wedded wife of the petitioner. That being the position, she
cannot claim maintenance under Section 125 of the Code of
Criminal Procedure. 1
Proof of no income
In one case it was stated that the claimant was living in her
matrimonial home and has no source of income. It was held that a
negative statement like this does not require any positive statement to
prove the same and hence the statement supported by an affidavit already
on record could not have been improved in any manner. This situation
however was denied by the non-applicant. According to him the
applicant was having land in her name on which she was doing
cultivation. This fact, the non-applicant claims to have come to his
knowledge on the basis of the information given by the applicant herself.
There is however nothing on record to justify such a statement. If the
applicant owns some land at the place where she is staying at the present
it should have been possible for the non-applicant to obtain copies of
revenue record from the authorities and file the same in the Court. The
revenue record would even disclose the name of person cultivating the
land. The non-applicant has however not cared to place this material on
record. Under the circumstances, there is nothing to hold that the
applicant is having sufficient income to maintain herself and also to meet
the legal expenses. In this view of the matter it was held that the
applicant is entitled to maintenance and legal expenses under Section 24
of the Hindu Marriage Act. 2
Proper witness
A party in proceeding of such a nature is a competent witness and
its statement has to be taken on its normal worth and it cannot be
rejected merely on the ground that it is a statement of a party to the
litigation itself. Similarly, in matrimonial matters, it is only the near
relations of the parties or their close friends and associates, who can be
expected to be acquainted with the facts relating to the parties and,
therefore, their statements also cannot be discarded merely on the ground
that they are relations or are friendly to the parties concerned. That
1 Punnakkal Sreedharan vs. Vellali Padmini, II (1992) DMC 296 Ker.

2 Uma Devi vs. Ram Avtar Tiweri, II (1985) DMC 398 MP.
Practice & Procedure—Quashing 561
evidence also has to be considered on its normal merits and demerits and
it cannot be discarded merely on the ground that it is partisan evidence. 1
Quashing
The right of a child to get maintenance is an independent right. A
child does not live either with the father or with the mother on its own
volition and cannot be deprived of it’s right. 2
In another case the Gujarat High Court has held that child’s right
to maintenance is quite independent and is not effected even by the
provisions of the Muslim Women (Protection of Divorce) Act. 3
The mere fact that the application for maintenance was filed after
filing of the Habeas Corpus petition is not a ground to quash the
proceedings under section 125 Cr.P.C. All relevant facts can be suitably
decided only in the proceeding under Section 125 Criminal
Procedure Code. 4
The position of law cannot be disputed that in exercise of
inherent powers under Section 482 this Court can interfere in the
impugned order to prevent abuse of process of Court or to secure the
ends of justice. Now it is settled that petition under Section 482 is not
maintainable against the order passed in revision confirming the order of
the Magistrate. Thus, so for as that part of the impugned order is
concerned whereby the order of the learned Magistrate was confirmed
the petition under Section 482 is not maintenance. Of course, the order
through which the amount of maintenance was enhanced can be
challenged provided the applicant succeed in showing that there was
abuse of the process of the Court or it was necessary for the ends
of justice. 5
After the disposal of the criminal writ petition by the Division
Bench, the petitioner has filed this petition under Section 482 of the
Code of Civil Procedure for the same relief. It was held that the
petitioner was taking undue benefit and advantage of the situation that he
is appearing in person and is not bound by the procedure of law or any
norms. It was further held that this petition was a total abuse of the
process of law. The petitioner cannot be allowed to abuse the system
indefinitely just because he chooses to appear in person. The petitioner
1 Harbans Kaur vs. State of Rajasthan, I (1986) DMC 342 Raj.

2 Jahan Begum vs. Rizvan Ulla, 1979 ACC 3; Balveer Singh vs.
Hardeep Singh, 1976 Cr.LJ 1136; relied
3 Abdulla vs. State of Gujarat, AIR 1988 Guj 141.
4 Sardar Anoop Singh vs. State, II (1994) DMC 450 All.
5 Rakesh Kumar Sexena vs. Sadhna Saxena, II (1994) DMC 614 MP.
harassed wife for several years by filing multiple proceedings in the

Courts and not paid maintenance and circumvented the Court’s order.
Any further indulgence to the petitioner would lead to serious
miscarriage of justice. Petition was accordingly dismissed with costs of
Rs. 10,000/-. The Registry was also directed not to entertain any petition
filed by the petitioner in connection with the maintenance unless the
costs as directed is paid and a proof of the same is placed on record. 1
Relief in void marriage

A person not being a legally married wife of the appellant for the
reasons as aforesaid, is not entitled to get any maintenance from the
appellant under the Hindu Adoptions & Maintenance Act, 1956. 2
In this case the appellant lived with the respondent for quite some
years, as a result of which a child was born and it is obvious that no
woman would not surrender to a man completely, for years together,
unless, there is some assurance and/or act on the part of the man which
may induce the woman at least to believe that she is his wife. In this
case, the appellant undoubtedly had lived with the respondent for years
to together and it is obvious that for such living with the respondent, he
must have induced the respondent by his acts and conduct to believe that
she was his wife and accordingly, the respondent surrendered her to the
appellant completely. For such immoral activities, the appellant should
not be spared altogether, thought the damage that has been caused by the
appellant to the respondent both physically and mentally cannot be
compensated in any way, it was directed the appellant to pay to the
respondent Rs. 30,000/- as damages for his above misdeeds within four
months from the date of drawing up of the decree. 3
Remedy of suit
In one case, placing reliance upon the provisions of Hindu
Adoptions & Maintenance Act, 1956 urged that for enforcing
maintenance, the plaintiff might to have filed a suit under the provisions
of the said Act in which eventuality the Court would be entitled to
exercise its discretion, as envisaged under Section 18 of the Act in fixing
the amount of maintenance having regard to the factors mentioned in
Section 23. Needless to add that it is the case of the
1 S.L Sehgal vs. State of Delhi, I (200) DMC 524 Delhi.

2 Ranjit Kumar Bhattacharyya vs. Sabita Bhattacharyya, AIR 1996
Calcutta 301 (DB): 1996 (1) Cal HN 360: 1996 (1) Cal LJ 465: 1996
(1) Hindu LR 520.
3 Ranjit Kumar Bhattacharyya vs. Sabita Bhattacharyya, AIR 1996
Calcutta 301 (DB): 1996 (1) Cal HN 360: 1996 (1) Cal LJ 465: 1996
(1) Hindu LR 520.
Practice & Procedure—Resjudicata 563
plaintiffs/respondents that the suit has not been laid for claiming
maintenance under the provisions of Hindu Adoptions & Maintenance
Act, 1956. As such there is no question of applicability of Section 23(1)
of the Hindu Marriage Act. On a plain reading of the plaint, it can be
seen that it is not a suit for maintenance but a pure and simple suit
seeking enforcement of the settlement arrived at between plaintiff and
the defendant/appellants. It was held that there is no provision in the
Hindu Adoptions & Maintenance Act, 1956, which debars filing of such
a suit. The Act is not an exhaustive on the law relating to maintenance
among Hindus. It is an Act to amend and codify the law relating to
adoptions and maintenance among Hindus. 1
Resjudicata
The finding of the Civil Court regarding desertion which is
binding on the Criminal Court. If it was a case of a decree of annulment
of marriage then such decision of the Civil Court per se would be
sufficient to disentitle the wife to claim the maintenance. But such was
not the position here. The contention in this case was that the Civil
Courts’ finding that the wife had deserted her husband and had not
joined the matrimonial home on her will and desire is binding on the
Criminal Court. It was therefore incumbent on the part of the Courts
below to scrutinise the judgment passed in the civil suits and ascertain if
any such finding had been recorded therein. A further question which
need to be examination in the case is that if such a finding was recorded
by the Civil Court whether in the averments made in the petition filed
under Section 125, Criminal Procedure Code and in the evidence led in
the proceeding there is anything to show that subsequent to the decree of
the Civil Court there has been a material change in the fact position or a
supervening circumstances has taken place which entitles the wife
to maintenance. 2
The Hindu Law as well as the common law cast a duty on the
husband to maintain the wife. In India, long before 1955, when the Act
was brought into force, such a duty of the husband was given statutory
recognition in the India Divorce Act, the Parsi Marriage and Divorce Act
and the Special Marriage Act. 3
The amount of maintenance, whether it is fixed by a decree or
agreement is liable to be increased or diminished whenever there is a
1 Ravi Singhal vs. Manali Singhal, II (2000) DMC 732: 1999(1) HLR
648 Delhi.
2 Jasholal Agarwala @ Jain vs. Puspabati Agarwala, II (1994) DMC
169 Orissa.
change of circumstances as would justify a change in the rate…..It may

be asked why it is that the rate of maintenance, though fixed by
agreement may be varied by the Court in a suit brought for that purpose.
The answer is that the right to maintenance does not rest on contract, but
on the provisions of the Hindu Law which expressly govern the rights
and duties of different members of the Hindu family. 1
Thus, the Hindu Law recognised that the right of maintenance
was a substantive and continuing right and the quantum and maintenance
was variable from time to time. Neither the provisions of Section 11 of
the Code of Civil Procedure nor the principles of resjudicata will bar a
suit for maintenance on an enhanced rate for a different period under
altered circumstances even though on an earlier occasion a maintenance
decree had been passed and a certain rate of maintenance had been fixed
thereunder. The reason being that such a decree as to the rate of
maintenance is not final. 2
It was contended in one case that since orders for maintenance in
favour of the wife have been denied under Section 125 Cr.P.C., for the
same reasons, pendente lite maintenance under Section 24 of the Hindu
Marriage Act should also be quashed. It was held that the both these
provisions operate in different spheres and they are independent of
each other. 3
During subsistence of the marriage both the husband and wife
may have rights and corresponding duties. Wife may be bound to
discharge marital obligations. She has the duty to keep company with the
husband and submit to other martial obligations to which the husband is
entitled. She may be justified in keeping away from the husband only for
a valid and justifiable reasons. If she is not so justified, she may not be
entitled to claim separate maintenance. During the subsistence of the
marriage, refusal by wife to submit to a decree for restitution of conjugal
rights may bar her claim for separate maintenance. But after divorce,
whatever be the circumstances of divorce, she has no obligation to
discharge the marital duties and none of those ground will prevail against
her claim. In such cases, in the absence of any disqualification available
under law she is entitled to get maintenance. The fact that she had filed
an earlier application when the marriage was subsisting and suffering a
1 Mulla Hindu Law Thirteenth Edition Para 568.

3 Prem Nath Sarvan vs. Prem Lata Sarvan, II (1986) DMC 40 Delhi:
(1986) 2 Hindu LR 91: (1986) 2 Cur LJ (Civ & Cri) 389: 1986
Marriage LJ 541: (1987) 91 Pun LR (D) 24: (1987) 1 Hindu LR 80:
1987 Mat LR 20: (1987) 1 Rec Cri R 362: (1987) 2 Cur CC 729.
Practice & Procedure—Revision 565
dismissal of the same on grounds available only against a wife whose

marriage is subsisting is no reason to dismiss her application in the
capacity as a divorced wife. The second application in such cases in a
different capacity under a distinct and independent cause of action
unconnected with the previous one and it cannot be treated as a second
application itself. During the subsistence of the marriage, the husband
could get the application of the wife dismissed on grounds more than one
which are not available to him after divorce. 1
Another authority 2 which was also relied in this decision may also
be referred, wherein Bhat, J. observed:
“Altogether she has filed two application; but the earlier one was
filed when she had the status of the wife and the latter application
was filed at a time when she had ceased to be wife and as a
divorced wife on the strength of the extended definition of the
expression “wife” occurring in Explanation (b) to Section 125(1).
Therefore, the present application cannot be treated as a second
application at all. There is no incompetency attached to the latter
application.
So far as the question of finding of fact recorded by the criminal

court in proceeding under Section 125 Cr.P.C. is concerned, they are
irrelevant for the for the purpose of the petition under Section 24 of the
Act. Whatever, has been said in a criminal case about the relationship of
the parties is of no consequence. A finding, if at all, given in a criminal
case, does not operate as res judicata is a civil suit/petition. 3
Revision
The inherent powers under Section 482 of the Code cannot be
utilised for exercising powers which are expressly barred by the Code.
Hence the High Court had clearly erred in entertaining the second
revision. In this view of the matter the petition under Section 482
Criminal Procedure Code was held not maintainable. 4
The questions whether the appellant No. 1 was the married wife
of the respondent and whether the appellant No. 2 was the. legitimate or
The Magistrate after considering the evidence, as adduced by the parties,
1 Mampekkattu Nanu vs. Mampekkat Vasantha, II (1986) DMC 109

Kerala.
2 Nanu vs. Vasantha, 1984 Ker LT 382: 1984 Cri LJ 1206.
3 Harpal Singh vs. Additional Session Judge, 1999(3) CCC 232 (All).
4 Pooran Singh vs. Sabobai, II (1994) DMC 629 MP.
held that the appellant No. 1 was not the wife of the respondent. He
further held on the basis of the evidence on record that the appellant No.
2 was the illegitimate child of the respondent. Thereafter the learned
Judge of the High Court, committed an error in making a re-assessment
of the evidence and coming to a finding that the appellant No. 2 was not
the illegitimate child of the respondent. The High Court in its revisional
jurisdiction was not justified in substituting its own view for that of the
It was urged that the applicant who was working in the Police
Department was later suspended and he was been getting only a
suspension allowance of Rs. 11,00/- and now the position is that he has
been dismissed and, therefore, he does not get anything by way of salary.
However, when the order was passed, these circumstances were not the
circumstances which prevailed and the consequent changed
circumstances could be matter for appropriate relief to be pleaded by the
husband upon proof of certain aspects if the husband needed any
notification into the order from the Trial Court. however, neither there
are any clear facts nor any proper date not the wife and the daughter
have been represented by any one, and it is really unsafe to record any
observation on this aspect of the matter, which has been thus advanced. 2
Revision & reconciliation

Where revision against rejection of application seeking recovery
was also rejected by a non-speaking order, it was held that such summary
rejection of revision petition was not proper. 3
When the revision was filed under Section 397, Criminal
Procedure Code while it ought to have been filed under Sub-section (4)
of Section 19 of the Family Court Act, it was held that the revision
cannot be thrown out because out because of mentioning of wrong
Section 397, Criminal Procedure Code instead of mentioning Sub-section
(4) of Section 19 of Family Courts Act. Due to oversight or for any other
reason if present revision has been filed under Section 397, Criminal
Procedure Code, it will not affect the maintainability of the revision,
inasmuch as the phraseology of Sub-section (4) of Section 19 of the
1 Pathumma vs. Muhammad, AIR 1986 SC 1436: II (1986) DMC 208

SC.
2 Ramdas vs. SAU. Bayaatal, I (2000) DMC 601 Bombay.
3 Kuldip Kaur vs. Surinder Singh, AIR 1989 SC 232: 1989 CrLJ 794:
1989 SCC (Cr) 171: 1989 CAR 9: 1989 CrLR (SC) 25: 1989 (1)
Crimes 1: 1989 MPLJ 1.
Practice & Procedure—Revisional jurisdiction 567
Family Court Act are pari materia to the phraseology used Section 397,
Procedure adopted by the Revisional court in calling the parties
in the chamber and discussing the matter with them was not
contemplated in the Code of Criminal Procedure as the entire procedure
in respect of grant of maintenance has been exhausted under Section 125,
126, 127 and 128 Criminal Procedure Code. It is further contended by
the learned counsel for the applicant that since the revisional order could
be challenged before the High Court in the absence of any document in
the form of nothing relating to what had transpired in the chamber, it was
not possible for the High Court to know as to what had really transpired
in the chambers and to what extent the observations of the revisional
court in that respect were correct. It is contended that this procedure of
the Revisional court resulted in an additional evidence of which the High
Court had no record and as such it is not possible either for this court or
for the parties to gauge as to what extent that additional evidence was
responsible to affect the mind of the revisional court and whether the
observation based on that evidence was legally justified or not. This
contention of the applicant appears to be correct. Unlike the procedure
prescribed under the Hindu Marriage Act. Section 125 and 126, Criminal
Procedure Code do not prescribe that the Court should make any effort
for reconciliation by talking to the parties. In any case, the Revisional
court ought to have recorded a note in detail duly signed by both the
parties as to what had transpired in the chambers, if at all this procedure
had not been objected by the parties and it could be only thereafter the
he could have treated it as evidence in setting aside the order of the
Magistrate on the point. 2
In the fitness of the things and the interest of justice it would be
expedient that different revisions arising out of the same order, to be
heard and decided by the common forum. 3
Revisional jurisdiction
Section 397 Criminal Procedure Code empowers the Courts
specified therein to call for the records of inferior criminal courts and
examine them for the purpose of satisfying themselves as to whether a
sentence, finding or order passed therein is legal, correct or proper or
whether the proceedings of such inferior Courts are regular. Under the
circumstances, it may be examined if the grant of Rs. 300/- per month as
1 Prem Singh vs. Madhu Bala, II (1995) DMC 603 Rajasthan.

2 Dhiraj Singh vs. Rajeshwari Devi, II (1989) DMC 308 All.
3 Chanda vs. Shankarrao Chiwane, I (1989) DMC 378 Bombay.
maintenance was proper. Order fixing proper amount of maintenance is

an order passed in exercise of discretion by the trial Magistrate. It
necessarily involves some amount of guess-work. As long as the power
has been properly exercised by the Magistrate, it will not be within the
jurisdiction of the Revisional Court to take a contrary view thereof, only
because it feels otherwise. The question that this Court would ask in such
a case is whether an amount of Rs. 300/- per month for maintenance of a
child living in the city of Bhopal was excessive, so as to be characterised
as illegal exercise of discretion ? Taking into consideration the present
level of prices of essential commodities and other amenities as also
facilities, this Court would think that Rs. 300/- per month cannot by any
stretch of imagination be characterised as excessive. What has to be
appreciated is that an amount of maintenance granted under Section 125
Criminal Procedure Code is expected to provide for a standard of life,
wherein the beneficiary is able to keep his body and soul together. This
takes within itself not only the expenses for food and clothing’s, but also
expenses involved in meeting other necessities of life. 1
The Court is not expected to adopt a rigid dogmatic or technical
stand in such a matter and keep in mind that the provision has a social
purpose. In this view of the matter, there was no justification whatsoever
for holding that the amount of Rs. 300/- per month was excessive. 2
Settlement
There has been an outburst of matrimonial disputes in recent times.
The marriage is a sacred ceremony, the main purpose of which is to enable
the young couple to settle down in life and live peacefully. But little
matrimonial skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in which elders of the
family are also involved with the result that those who could have counselled
and brought about rapprochement are rendered helpless on their being arrayed
as accused in the criminal case. There are many other reasons which need not
be mentioned, for not encouraging matrimonial litigation so that the parties
may ponder over their defaults and terminate their disputes amicable by
mutual agreement instead of fighting it out in a Court of law where it takes
years and years to conclude and in that process the parties lose their “young”
days in chasing their “cases” in different Courts.3
1 KU. Saba vs. Syed Mohammad Fazil, I (1991) DMC 262 MP.
2 KU. Saba vs. Syed Mohammad Fazil, ibid.
3 G.V. Rao vs. L.H.V. Prasad, I (2000) DMC 385 SC.
Practice & Procedure—Territorial Jurisdiction 569
Successive petitions
Where a suit is dismissed, wholly or partly, under Rule 8 of
Orders 9 of the Code of Civil Procedure, the plaintiff shall be precluded
from filing a fresh suit in respect of the same causes of action. The
question is whether the provisions of Rules 8 and 9 of Order 9 of the
Code of Civil Procedure are applicable to petition under the High
Marriage Act. Subject to the other provisions of the Hindu Marriage Act
and the rules made by the High Court, “all proceedings” under the Hindu
Marriage Act, shall be regulated, “as far as may be”, by the Code of
Civil Procedure governs the proceedings under the Hindu Marriage Act.
The words “as far may be” no doubt, qualify the application of the Code
of Civil Procedure to the proceedings under the Hindu Marriage Act.
There words merely mean that the provisions of the Code of Civil
Procedure, which, by reason of their nature are incapable of application
to the proceedings under the Hindu Marriage Act, may not be applicable.
For instance the provisions as to the place of suing the institution of suits
by presentation of plaints and such other provisions of the Code of Civil
Procedure as are inconsistent with provisions of the Hindu Marriage Act,
may be not be applicable to matters in respect of which Hindu Marriage
Act has different provisions. However there is no provision of the Hindu
Marriage Act or Rules made there under, which suggests exclusion of the
application of Rules 8 and 9 of Order 9 of the Code of Civil Procedure.
Therefore, Rule 9 of Order 9 of the Code of Civil Procedure was held
applicable to the proceedings under the Hindu Marriage Act. 1
Every citizen has a right to litigate his cause and seek justice
from a Court of law. It is of the essence of this right that it is exercised
bona fide. To use this right to seek remedy by misuse, wrong or bed use
of the judicial process is, to abuse the process of the Court. In legal
thinking abuse of process of the Court is a term generally applied to a
proceeding which is wanting in bona fides and is frivolous vexation or
oppressive”. Abuse of process of the Court, however, takes various
forms. For instance accruing an injunction to protect one’s possession
when he is not in possession, filing successive suits in respect of the
same cause, accruing a relief by suppression of facts and so on. 2
A specific plea is taken by the husband that he and the appellant
lived together at Bangalore, which was specifically denied by the
appellant in her objection statement. No point for determination of that
1 G. Sarla vs. K. Nalinakshan, I (1992) DMC 360 Ker.

2 G. Sarla vs. K. Nalinakshan, I (1992) DMC 360 Ker.
pleading was ever raised by the Court below to give jurisdiction under
clauses (iv) of Sub-section (1) of Section 31 of the Act. Now apparently
the Family Court came to the conclusion that on the date the petition was
presented by the husband, the appellant was residing outside the
territories to which the Act extended and therefore, it had jurisdiction. In
other words, the expression ‘residing outside’ has been construed by it
literally, which was held to be not correct. 1
Residing outside the territories to which this Act extends’
occurring in clause (iv) of Sub-section (1) of Section 31 of the Act must
be construed to mean residing the intention of permanently residing and
has acquired domicile of the other country to which the Act does not
extend. If any other, limited meaning is given, then the jurisdiction can
be created by including the other party to go on a pleasure trip to a
country to which the Act does not apply. It was held 2 that the Family
Court should have formulated following two points for determination in
order to determine its own jurisdiction with reference to the pleading:
(i) Whether or not the appellant-wife and the respondent-husband
last lived together within the jurisdiction of the Family Court at
Bangalore? and
(ii) Whether the appellant-wife was a permanent resident of had
acquired the domicile in England at the time petition was
presented in the Family Court at Bangalore?
It was further held that the word ‘domicile’ was used with the
specific intention that the Family Court must go by what domicile in
Municipal and International Law means and it should invite evidence
from the parties in regard to the two points above as the jurisdiction will
depend on the facts to be established on the point formulated. Therefore,
the order under appeal was set aside and the matter was remitted to the
Family Court to decide the question afresh in the light of the points
formulated above and after inviting the evidence to be adduced by the
parties in order to decide the jurisdiction of the Family Court. 3
Under Criminal Procedure Code when the revisional jurisdiction
is invited by the litigation it is not as a matter of right but it is
discretionary power vested in the Court to examine the proceedings of
the courts below in certain circumstances. If the petitioner or his
advocate is heard and system has developed and we have been following
that the advocates are present and the petitioners are present, they are
heard in the interest of justice. But there is no obligation on the Court to
1 Nandita Menon vs. P. Anand Menon, I (1991) DMC 521 Kar.

2 Nandita Menon vs. P. Anand Menon, ibid.
3 Nandita Menon vs. P. Anand Menon, I (1991) DMC 521 Kar.
Practice & Procedure—Transfer of proceedings 571
wait for the party in revisional jurisdiction. The Court itself examine the
record and the petitioner cannot be blame as a matter of right of not
hearing if he chose to remain absent. It is true that the courts are not
supposed to decide the matters in the absence of the parties or their
advocates, but then it is also equally true that the advocates who
themselves filed the petition and especially when they are appearing
before the Revisional Court it is desirable that some responsibility is
attached to them also. 1
Under Section 18 of the Hindu Adoptions & Maintenance Act, the
petitioner is entitled to maintenance provided she first proved that she
was treated by the husband with such cruelty as to cause a reasonable
apprehension in her mind that it would be harmful or injurious for her to
live with him. The various acts of cruelty and desertion in the instant
case took place at Kalyan and, therefore, it was held that the cause of
action or any part thereof accrued in Kalyan and not in Bombay. 2
Transfer of proceedings
The meaning and purpose of Section 21A of the Hindu Marriage
Act is clearly to prevent the catastrophic possibility of two different
Courts passing conflicting judgments and differing decrees, one granting
divorce and another denying it. In order to avert this danger, Section 21A
of the Hindu Marriage Act takes away discretion from the Court and by
use of the word ‘shall’ mandatorily directs the appropriate Court or
Government to consolidate for trial the two applications filed separately
by the husband and wife seeking divorce or judicial separation by
transferring the application filed later in point of time to the Court where
a similar first application is filed and pending. The aforesaid Section
21A of the Hindu Marriage Act is concerned only with two of the several
situations that may call for transfers. Dealing with that situation Section
21A of the Hindu Marriage Act provide more for the performance of an
uniform duty by the Court and almost for an involuntary joint trial
without any reference to the will of the parties. Section 21A of the Hindu
Marriage Act has nothing to do with the power to be exercised by the
Court on the basis of individual cases. Section 21A of the Hindu
Marriage Act, proceeding on the basis of above policy does not,
therefore, leave any discretion either to the Court or to the parties in the
matter of transfer, not even in the matter of deciding which application
should be transferred to which Court. Legislature has settled all these
1 Hem Chandra Shridhar vs. Hemangi Hemchandra Nair, I (1983)

DMC 1 Bombay.
2 Neeta Deelip Kumar Suchak vs. Deelip Kumar Mohan Lal Suchak,
II (1984) DMC 200 Bombay: AIR 1984 Bom 235.
questions and decided every essential detail. But outside that limited area
there can be several situation calling for transfer with or without joint
trial. Those situations are still left to be dealt with by Section 24 of the
C.P.C. They are still left to be governed by the general provisions of
Section 24 of the C.P.C. Appropriately under Section 24 of C.P.C., what
is given to the Court to deal with those situation is a discretionary power
enabling the High Courts and the District Court to transfer cases on
individual basis. There is wide discretion available to the Courts under
Section 24 of C.P.C. The subject matter of these two statutory provisions
and the area of their operation and the purpose for which they are
intended to be used, cannot, therefore, be said to be the same. 1
The purpose of Section 24 of C.P.C. is merely to confer on the
Court a discretionary power. A Court acting under Section 24 of the
C.P.C. may or may not in its judicial discretion transfer a particular
subsequent application to be tried along with a particular earlier
application. Now Section 21A of the Hindu Marriage Act substitutes a
mandatory duty in the place of this discretionary power denying
discretion altogether to the Court to a situation to which 21A of the
Hindu Marriage Act applies. It is for this reason that Section 21-A is
enacted. By confining Section 21A to that area alone that Section is
rendered neither meaningless nor superfluous. Outside the situation
covered by 21A of the Hindu Marriage Act, there is therefore no reason
to hold that the discretionary power of transfer given to the High Court
and the District Court under Section 24 of the C.P.C. is altogether
abrogated in the matter of transfer of matrimonial cause under the Hindu
Marriage Act. 2
Section 21 of C.P.C. is a remedial provision. Such a provision
should not be nullified by interpretation except for compelling reason of
language or purposes of the Statute. 3
In one case it was contended by the petitioner that on the
previous occasions when the petitioner went to attend the Court on the
dates of hearing, the opposite party with her father and some anti-social
elements threatened him with consequences, if he again attended the
Court to contest the case. It was held that the provisions of Section 407,
Criminal Procedure Code can not be applied on such a ground. If really
any such incident takes place, the remedy lies elsewhere. Transfer of the
case to another place on this ground cannot be called for or justified.
1 T. Ramadevi vs. T.V. Subrahmanyam, I (1982) DMC 113 AP.

2 T. Ramadevi vs. T.V. Subrahmanyam, I (1982) DMC 113 AP.
3 T. Ramadevi vs. T.V. Subrahmanyam, ibid.
Practice & Procedure—Verification of affidavit 573
Such threat has nothing to do with the venue of the proceeding and may
occur anywhere irrespective of the place where the Court is situated and
it cannot be made a ground for transfer. It was also held that such a story
unaccompanied by any complaint of Diary while original to have been
lodged with the police by the petitioner loses its credibility. 1
It was also the case of the petitioners that the petitioner No. 1
being employed at Bhotan has to come long way in order to attend the
Court on the dates of hearing. This contention was held to be not very
impressive for the reason that in any event he had to come to Jalpaiguri
from the place of his work. Judicial notice was taken of the fact that the
Cooch Behar district is contiguous to the Jalpaiguri district and the
distance between Jalpaiguri Court and Cooch Behar Court can be covered
by only few hours journey by bus. It was held that it should not be
forgotten that the other party was the wife of the petitioner and was a
female person. The amended Section 126, Criminal Procedure Code has
bestowed upon her the right of having the venue of the proceeding in the
District in which she presently resides. To transfer the case to a Court of
Jalpaiguri district will be to deprive her of this privilege frustrating the
intention of the Legislature. If comfort is provided to the male party, that
will be at the cost of the female party’s convenience. If he is allowed to
have the Court in the vicinity of his house, the member of the weaker
section will be forced to travel a longer distance every time there is a
date for hearing. Moreover, it should be borne in mind that the
expression used in Section 407(1)(c) of the Code, namely, that the order
“will tend to the general convenience of the parties or witnesses” is
designed to draw a line between the inconvenience affecting a group of
persons in general and that affecting a single person in individual
capacity. In this case the wife is the 1 st party at whose instance the
proceeding has been started and she is supposed to have the burden of
proving her case with the help of witnesses hailing from her locality.
From this point of view also the language of the law was held to be in
her favour. 2
Verification of affidavit
The wife in her application for pendente lite maintenance has
stated that the husband “is a medical practitioner and has got a lucrative
practice and earns at least Rs. 8,000/- per month” and that he also “own a
fairly big house at Calcutta” which fetches and is capable of fetching
1 Subodh CH. Majumder vs. Mina Majumder (Misra), I (2000) DMC

676 Calcutta.
676 Calcutta.
decent income”. But in the affidavit in support this application all the
statements in the application have been affirmed as “true to the best of
my knowledge and belief” without specifying in any way which
statement are true to her knowledge and which are true to her belief and
also without stating starting the grounds of such belief. Under the
provisions of Order 19, Rule 3(1) of the Code of Civil Procedure, in
affidavits relating to interlocutory applications, statements of the
deponent’s belief may be admitted, provided however, “the grounds
thereof are stated”. It was therefore held that the statements in the
affidavit of the wife could not, in law, be taken into consideration. 1
1 Ashit Mukherjee vs. Susmita Mukherjee, II (1986) DMC 254

Calcutta.
Scope of jurisdiction—Alternative forums 575
Chapter 13
Scope of jurisdiction
SYNOPSIS
Introduction....................................575 Inherent powers ............................. 580
Alternative forums..........................575 Pecuniary jurisdiction ................... 581
Appropriate forum .........................578 Revisional jurisdiction ................... 582
Court of record ..............................579 Revision and merger ...................... 582
Family Court ..................................579 Summary jurisdiction .................... 585
Finding on legitimacy ....................579 Territorial Jurisdiction .................. 586
Introduction
The right to seek maintenance flows from various legislative
provisions as also, in some cases under the ancient Hindu law. Similarly
there are various courts/forums which are entitled to deal with different
situations and petitions. This chapter deals with such forums and the
precedents which have resolved the questions relating to the scope of
jurisdictions of these forums.
Alternative forums
The amount awarded under Section 125 of the Cr.P.C. for
maintenance is adjustable against the amount awarded in the matrimonial
proceedings and is not to be given over and above the same. 1
The main aim of Section 125 Criminal Procedure Code is that the
women are not thrown out to the vagrancy as there is no maintenance to
them. To safeguard their right to live by getting maintenance. Section
125 Criminal Procedure Code, is provided. Under Section 125 Criminal
Procedure Code, the women can approach the Court, where she is living
whereas that is not the position under the Hindu Marriage Act.
Considering the proceeding under Section 488 Old Criminal Procedure
Code (equivalent to Section 125 of the present Criminal Procedure Code)
Chinnappa Reddy, J. held 2 as under:
1 Sudeep Chaudhary vs. Radha Chaudhary, AIR 1999 SC 536: 1999

CrLJ 466: 1998 SCC (Cr) 160: 1999(5) Bom CR 813: 1998 CrLR
(SC) 262.
2 S.Seshamma, In re:, 1968 (2) An WR 98
“The object of Section 488, Criminal Procedure Code is the

prevention of vagrancy and to provide neglected wives and
children a cheap and speedy remedy. This remedy is irrespective
of other remedies such neglect wives and children may have
under their personal law or under any statute. The existence of
other mere efficacious remedy is no bar to the maintainability of
a petition under Section 488, Criminal Procedure Code. Indeed it
is irrelevant. Similarly the pendency of other proceedings where
the status of the parties is in question of where a husband seeks
some matrimonial relief is no bar to the maintainability of a
petition under Section 488. Criminal Procedure Code. Nor can the
proceedings under Section 488 Criminal Procedure Code be made
to await the result of such other proceedings. Otherwise the
object of Section 488, Criminal Procedure Code providing for a
cheap and speedy remedy will be frustrated. However, where a
competent Civil Court declares the rights of the parties, the
Magistrate passing an order under Section 488, Criminal
Procedure Code is empowered to cancel or suitably very the
order. This is provided under Section 489(2), Criminal Procedure
Code and this provision amply protects the rights of the parties as
may ultimately be determined by the Civil Court.”
The sum and substance of the above judgment is that the right of
the wife under Section 125 Criminal Procedure Code is independent of
the right provided under the Hindu Marriage Act and where the
maintenance is awarded under Section 125 Criminal Procedure Code, and
again Civil Court also awards maintenance under the Hindu Marriage
Act and Maintenance & Guardianship Act, the husband can file a petition
under Section 127 Criminal Procedure Code to alter the maintenance
granted under Section 125 Criminal Procedure Code. 1
Ramaswamy, J (as he then was) has held 2 as under:
“The remedies under Section 24 of the Hindu Marriage Act and
under Section 125 Criminal Procedure Code are not alternative
but they are concurrent and optional to the party entitled to make
avail of. They are remedial measures intended to alleviate
hardship that may be caused to either spouse i.e., the application
under Section 125 Criminal Procedure Code or the respondent
under Section 24 of the Hindu Marriage Act. Therefore, the mere
possibility of availability of the remedy under Section 24 of the
Hindu Marriage Act does not take away the power and
jurisdiction of the Court under Section 125 Criminal Procedure
Code to grant relief. Therefore, the contention that the Criminal
Court has no jurisdiction when an application under Section 13 of
1 G. Sundara Babu vs. Udaya Bhanu, II (1991) DMC 211 AP.

2 Ajjarapu Surya Sri Rama-Chandra Murthy vs. Ajjarapu Tejo
Satyasathi mani 1983 (2) APLJ 374 (HC)
Scope of jurisdiction—Alternative forums 577
the Hindu Marriage Act has been filed to grant maintenance to

the Ist respondent is devoid of substance and accordingly it is
rejected.”
Similarly P. Kodandaramayya, J 1. has held that the order of a
Magistrate granting maintenance to wife under Section 125 Criminal
Procedure Code is not a bar for ordering interim maintenance to her
pending the proceedings under Section 24 by the husband. However, it
was observed that it is open to the petitioner therein to apply and satisfy
the Magistrate that the order passed by him may be rescinded, in view of
the order passed by the Civil Court.
The husband had filed the suit for divorce and, as such, under
Section 24 of the Act, a party who is not in position to maintain herself
or himself, may file an application under Section 24 of the Act. It is for
the Court to consider on the evidence on record as to whether he or she is
in a position to maintain herself or himself. In such view of the matter,
the Court below was held to have acted with material irregularity by
refusing monthly allowance to the petitioner solely on the ground that
she lost the proceeding under Section 125 Criminal Procedure Code. 2
There is no inconsistency between the Maintenance Act and
Section 488, Criminal Procedure Code. Both can stand together. The
Maintenance Act is an Act to amend and codify the law relating to
adoptions and maintenance among Hindus. The law was substantially
similar before and nobody ever suggested that Hindu Law, as in force
immediately before the commencement of this Act, in so far as it dealt
with the maintenance of children was in any way inconsistent with
Section 488, Criminal Procedure Code. The scope of the two laws is
different. Section 488 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. 3
When by Court intervention under the Hindu Marriage Act,
affectation or disruption to the marital status has come by, at that
juncture, while passing the decree, it undoubtedly has the power to grant
permanent alimony or maintenance, if that power is invoked at that time.
It also retains the power subsequently to be invoked on application by a
party entitled to relief. And such order, in all events remains within the
1 in Varda Kota Satyanarayana vs. Varada Parvathi 1986 (1) ALT 201.
2 Abha Prasad @ Abha Sharma vs. Bimal Kishore Prasad, II (1995)
DMC 458 Patna.
3 Nanak Chand vs. Chandra Kishore Aggarwal, 1970 CrLJ 522: 1970
AIR (SC) 446: 1970(1) SCR 565: 1969(3) SCC 802: 1969 All WR
(HC) 711: 1970 Mad LJ (Cri) 94.
jurisdiction of that Court, to be altered or modified as future situations

may warrant. In contrast, without affectation or disruption of the marital
status, a Hindu wife sustaining that status can live in separation from her
husband, and whether she is living in that state or not, her claim to
maintenance stands preserved in codification under Section 18(1) of the
Hindu Adoptions and Maintenance Act. The Court is not at liberty to
grant relief of maintenance simpliciter obtainable under one Act in
proceedings under the other. As is evident, both the statutes are codified
as such and are clear on their subjects and by liberality of interpretation
interchangeability cannot be permitted so as to destroy the distinction on
the subject of maintenance. 1
Relief to the wife may also be due under Section 125 of the Code
of Criminal Procedure whereunder an order of maintenance can be
granted after contest, and an order of interim maintenance can be made at
the outset, without much contest. This provision however has two
peculiar features:
(i) the provision applies to all and not only to Hindus; and
(ii) maintenance allowance cannot exceed a sum of Rs. 500/-per
mensem.
But this is a measure in the alternative to provide destitute wives. 2
Appropriate forum
The filing of the petition under Section 125 of the Code of
Criminal Procedure does not debar the Matrimonial Court, from fixing
maintenance pendente lite under Section 24 of the Act. If the Court fixes
maintenance under Section 125 of the Code of Criminal Procedure, the
husband will be entitled to claim adjustment for the maintenance paid
pendente lite under Section 24 of the Act. The order passed by the
Matrimonial Court under Section 24 of the Act cannot be rendered
nugatory because no proceeding under the Act was pending. The order
under Section 24 of the Act can be enforced like a decree. 3
The Hindu Adoptions & Maintenance Act provides for a right to
claim maintenance to the wife under Section 18. The remedy under
Section 125 Criminal Procedure Code is summary in nature and quicker
than the one provided under the Act. Therefore, merely because the party
can approach the civil court, the same is not a bar to claim maintenance
1 Chand Dhawan vs. Jawaharlal Dhawan, 1993 CrLJ 2930: 1993 (3)
SCC 406.
2 Chand Dhawan vs. Jawaharlal Dhawan, ibid.
3 Om Prakash vs. Chander Wati @ Chamderpali, I (1991) DMC 352
P&H.
Scope of jurisdiction—Finding on legitimacy 579
under Section 125 Criminal Procedure Code. But however, if a party

approaches the civil court after maintenance is granted under Section 125
Criminal Procedure Code and gets the decree for maintenance then the
decree of the civil court prevails. Therefore, it was held that even in the
case of negligence in payment of maintenance as per the terms of the
agreement between the parties, the wife can claim maintenance under
Section 125 Criminal Procedure Code even though she has a right to
approach the civil court for grant of maintenance. 1
Court of record
The High Courts in India being superior Courts of record with
original, appellate and supervisory jurisdiction, subject to the appellate
jurisdiction of the Supreme Court, have unlimited jurisdiction to
interpret as well as to determine authoritatively the law, codified law or
uncodified law as well as to declare the law and to apply the relevant law
to the facts of the case. The High Courts are Court of unlimited
jurisdiction and repository of all judicial power under the Constitution
but subject to any other exception specifically provided by the
Constitution. Being Courts of records the High Courts have jurisdiction
to determine their own powers as well. Being expositor of law and the
intent and will of the Parliament the legislature and the framers of the
Constitution under the provisions of the Constitution of India as well, the
framers of the Constitution have assigned a new role to the
Constitutional Courts i.e. Courts constituted under the Constitution, to
ensure the rule of law. 2
Family Court
The claim for maintenance includes claim for marriage expenses.
Explanation (f) of Section 7 of the Family Courts Act though does not
deal with marriage expenses, the word ‘maintenance’ there takes in
marriage expenses of the unmarried daughter. Hence, the suit is
exclusively triable by the Family Court and not by a Civil Court. 3
Finding on legitimacy
should have been conceived even before the respondent had
consummated the marriage. Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an improbable or impossible
1 Chimata Nigarathnamma vs. Chimta Nathaniel, I (1991) DMC 459

AP.
3 Sivadasan vs. Santha, I (2000) DMC 198 Kerala.
event. The proper course for the High Court, even if it is entitled to
interfere with the concurrent findings of the Courts below in exercise of
its powers under S. 482, Cr.P.C., should have been to sustain the order of
maintenance and direct the respondent to seek an appropriate declaration
in the Civil Court, after a full fledged trial, that the child was not born to
him and as such he is not legally liable to maintain it. Proceedings under
S. 125, Cr. P.C., it must be remembered, are of a summary nature and are
intended to enable destitute wives and children, the latter whether they
are legitimate or illegitimate, to get maintenance in a speedy manner.
The High Court was, therefore, held to be in error in quashing the order
of maintenance in favour of the child. 1
Inherent powers
It is not for High Court to go through the whole case over again
or to find out whether it could interfere with the findings on a different
approach to the question which this Court may choose to make. Such an
exercise would be uncalled for and beyond the scope of the power under
Section 482. The Court should guard against such a situation and should
not be tempted to interfere merely because, if the court has occasion to
go through the evidence afresh perhaps it may choose to take a view
different from that taken by the court below. 2
Where right of maintenance to a woman is denied on untenable
grounds, quashing such an order can be considered the object of securing
the ends of justice within the meaning of Section 482 of Criminal
Procedure Code. 3
The wife in order to claim maintenance from her husband has to
prove that her husband, having sufficient means, has neglected or refused
to maintain her and further that she was unable to maintain herself. The
ingredients of Section 125(1) Criminal Procedure Code, which the wife
has to prove is the neglect or refusal on the part of the husband to
maintain her and further that she is unable to maintain herself. In the
instant case, there is dispute regarding the fact the petitioner/husband has
neglected or refused to maintain the respondent/wife. There is also
dispute regarding the fact that the respondent/wife is unable to maintain
herself. Till the respondent/wife proves these ingredients against the
husband and shows that she has legal and justifiable reasons for living
separately from her husband and that she is unable to unable to maintain
1 Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049.

2 M. Chandran vs. B. Jagadamma, II (1982) DMC 174 Kerala.
DMC 199 AP.
Scope of jurisdiction—Pecuniary jurisdiction 581
herself, the petitioner/husband would be required to pay maintenance to

her till the reasons for separate living disappear and the husband is
willing to keep his wife with him. The ingredients of Section 125(1)
Criminal Procedure Code are dependents upon proof of the allegations
contained in the petition. Undoubtedly, Section 397(3) Criminal
Procedure Code bars a second revision filed by the same person, who has
already availed the remedy of a revision before the Sessions Judge.
There is also no dispute about the fact that the bar of Section 397(3)
Criminal Procedure Code cannot be overcome merely by filling an
application under Section 482 Criminal Procedure Code if in substance
and reality the intention of the party is to file a second revision. But in
case the learned Additional Session Judge while dealing with the
revision has not decided the revision according to law, then High Court
can certainly intervene under its inherent powers under Section 482
Pecuniary jurisdiction
Although what the section 125 of Criminal Procedure Code, 1973
plainly means is that the Court cannot grant more than Rs. 500/-for each
one of the claimants. “In the whole” in the context means taking all the
items of maintenance together, not all the members of the family put
together. 2
If a woman has a dozen children and if the man neglects the
whole lot and, in his addiction to a fresh mistress, neglects even his
parents and all these members of the family seek maintenance in one
petition against the delinquent respondent, can it be that the Court cannot
award more than Rs. 500/- for all of them together? On the other hand if
each filed a separate petition there would be a maximum of Rs. 500/-
each awarded by the Court. Therefore, this obvious jurisdictional
inequity was refused to be read in the provision by reading a limitation
of Rs. 500/- although what the section plainly means is that the Court
cannot grant more than Rs. 500/- for each of the claimants. ‘In the
whole’ in the context means taking all the items of maintenance together,
not all the members of the family put together. This interpretation
accords with social justice and semantics and, more than all, is obvious. 3
1 Kulwant Singh Bhullar vs. Sukhwant Kaur, 1999(1) HLR 155 P&H.
2 Captain Ramesh Chander Kaushal vs. Veena Kaushal, 1979 CrLJ
3: AIR 1978 SC 1807: 1978 CrLR (SC) 348: 1978 CAR 336: 1978
SCC (Cr) 508: 1979 MPLJ 10: 1979 Mah LJ 1.
3 Captain Ramesh Chander Kaushal vs. Veena Kaushal, ibid.
Revisional jurisdiction
In case of dispute about valid marriage of claimant and
legitimacy of child the High Court in exercise of revisional jurisdiction,
substituted its own finding in substitution of finding of Magistrate. It
was held that such inference with finding of fact was not proper. 1
Section 397 Criminal Procedure Code empowers the Courts
specified therein to call for the records of inferior criminal courts and
examine them for the purpose of satisfying themselves as to whether a
sentence, finding or order passed therein is legal, correct or proper or
whether the proceedings of such inferior Courts are regular. Under the
circumstances, it may be examined if the grant of Rs. 300/- per month as
maintenance was proper. Order fixing proper amount of maintenance is
an order passed in exercise of discretion by the trial Magistrate. It
necessarily involves some amount of guess-work. As long as the power
has been properly exercised by the Magistrate, it will not be within the
jurisdiction of the Revisional Court to take a contrary view thereof, only
because it feels otherwise. 2
The question that High Court would ask in such a case is whether
an amount of Rs. 300/- per month for maintenance of a child living in the
city of Bhopal was excessive, so as to be characterised as illegal exercise
of discretion ? Taking into consideration the present level of prices of
essential commodities and other amenities as also facilities, it was held
that Rs. 300/- per month cannot by any stretch of imagination be
characterised as excessive. What has to be appreciated is that an amount
of maintenance granted under Section 125 Criminal Procedure Code is
expected to provide for a standard of life, wherein the beneficiary is able
to keep his body and soul together. This takes within itself not only the
expenses for food and clothing’s, but also expenses involved in meeting
other necessities of life. The Court is not expected to adopt a rigid
dogmatic or technical stand in such a matter and keep in mind that the
provision has a social purpose. 3
Revision and merger

Section 397, Criminal Procedure Code vests a right of revision in
the husband as also in the wife against the order granting or refusing
maintenance apart from their right to seek enhancement or reduction of
1 Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986 CrLJ 1070:

1986 SCC (Cr) 212: 1986 CrLR (SC) 223: 1986 Guj LH 788: 1986
All WC 732.
2 KU. Saba vs. Syed Mohammad Fazil, I (1991) DMC 262 MP.
3 KU. Saba vs. Syed Mohammad Fazil, ibid.
Scope of jurisdiction—Revision and merger 583
the maintenance, if awarded by the trial Court. Further, Section 397,

Criminal Procedure Code provides concurrent jurisdiction in High Court
as well as in the Session Court. It is in view of this provision of
concurrent jurisdiction, the petitioners moved the Session Judge for
enhancement of the maintenance while the husband approached this
Court challenging the very award of maintenance. This Court dismissed
the revision filed by the husband through the order quoted supra. In view
of this order of dismissal the learned Session Judge held that the order of
the Magistrate got merged in the order of this Court and therefore he
could not pass an order contrary to the orders of this Court. Accordingly
the revision filed by the petitioners was dismissed. No doubt, since two
revisions were filed one before this Court and the other before the
Session Judge they ought to have been disposed to together by the
superior court after calling for the papers in the case pending before the
lower Court. For some or other reason that did not take place in the
instant matter. 1
The scope and applicability of the doctrine of merger is laid down
in a nut-shell by the Supreme Court 2 thus:
“The doctrine of merger is not a doctrine of rigid and universal
application and it cannot be said that wherever there are two
orders, one by the inferior authority and the other by a superior
authority, passed in an appeal or revision, there is a fashion or
merger of two orders irrespective of the subject-matter of the
appellate or Revisional order and the scope of the appeal or
revision contemplated by the particular statute. The application of
the doctrine depends upon the nature of the appellate or
Revisional order in each case and the scope of the statutory
provisions conferring the appellate of Revisional jurisdiction.”
In another case 3 the conviction of the accused when challenged in
appeal was affirmed by the High Court. Therefore, he could not file any
further revision against his conviction or for reduction of sentence.
However, as soon as the State applied for enhancement of sentence by
way of a revision, the accused becomes entitled under Section 439(6).
Criminal Procedure Code again challenge his conviction. The Supreme
Court has categorically held that the State cannot contend that the
accused cannot challenge the very conviction in the revision filed by the
State on the ground that the appeal against his conviction filed earlier
was dismissed.
1 Anwar Jahan vs. Mohammad Osman Ali, I (1991) DMC 356 AP.
2 State of Madras vs. Madurai Mills, AIR 1967 SC 681.
3 U.J.S. Chopra vs. State of Bombay, AIR 1955 SC 633.
A case before AP High Court came up for consideration. That

was a case where on an earlier occasion the Director of settlements
dismissed a petition filed for condition of delay in filing a revision
against the grant of patta by the Settlement Officer. Later, when the
Director sought to exercise his suo motu powers of revision, the
objection was that he could not do so since earlier he dismissed the
petition for the very condonation of delay in filing the revision, which
had the effect of dismissing the revision itself. Considering this question,
a Division Bench of the Court held that in the facts and circumstances of
that case there was no room either for saying that he has exercised once
his powers of revision, nor can it be said that the order of Settlement
Officer got merged with the order of the Director of Settlements and
therefore, there was no order of Settlement Officer which may be
available for being revised on the second occasion. 1
In one case the husband had assailed the very grant of
maintenance. It did not seem to have been contended that the quantum of
maintenance awarded was excessive and calls for lowering down, much
less there is any reference to the question of quantum of maintenance.
Thus, the question regarding the sufficiency or otherwise of the quantum
of maintenance awarded has not been adverted to by High Court. What
all High Court held was that there was no reason to interfere with the
grant of maintenance. Therefore, quantum of maintenance awarded is not
an aspect that was decided by this Court for purposes of holding that this
Court had refused to interfere with the quantum the thereby the revision
filed by the petitioners for enhancement of the maintenance awarded gets
dislodged. To the extent of grant of maintenance, no doubt, this Court
gave a categorical finding that the wife and daughter (the petitioners
herein) were entitled to the maintenance. But is so far as quantum of
maintenance is concerned, neither it was challenged before the Court not
there was any finding in either way, viz. lowering down or refusing to
lower down. The subject matter as also nature of the Revisional order are
thus distinct and different from the subject-matter of the revision filed by
the petitioners for enhancement of the maintenance awarded.
Accordingly, it cannot be said that the quantum of maintenance awarded
by the Magistrate was the subject-matter in the revisional order nor the
nature of revisional order passed by the Court related to the quantum of
maintenance so as to enable the husband to invoke the doctrine of merger
to dislodge the revision filed by the wife before the Sessions Judge. 2
1 Mirza Muzumdar Hussain vs. Dodla Bhaskara Reddy, (1987) 2

Andh LT 383.
2 Anwar Jahan vs. Mohammad Osman Ali, I (1991) DMC 356 AP.
Scope of jurisdiction—Summary jurisdiction 585
Summary jurisdiction
In a case for maintenance under Section 125 of the Criminal
Procedure Code, it is not necessary that the marriage is established
beyond reasonable doubt, it is enough for the Magistrate that prima facie
case is made out, in order to afford the immediate and speedy relief of
the suffering party, under Section 125 Criminal Procedure Code, while
leaving open to the aggrieved party the right to agitate his plea before
the civil court, if he is so advised. 1
In a proceeding under Section 125 of the Criminal Procedure
Code (Chapter IX) the Court does not determine the status of parties and
it does not given any finding having the value of res judicate in respect
of the parentage or matrimonial status. The provisions of the Chapter are
meant to preserve peace and avoid strife in society by providing
immediate relief to parties who are neglected, and who otherwise would
resort to vagrancy, mendacity or other anti-social activities. In a
proceeding under Chapter IX, Criminal Procedure Code, the role of the
Magistrate is only to find out whether there is a prima facie case in the
claim of the person approaching the court for an immediate relief. He has
no time, no jurisdiction to embark upon an elaborate enquiry. 2
The Code by virtue of Section 125 provides a summary remedy
for awarding maintenance to all neglected wives irrespective of castes,
creed, community or religion to which they belonged. It carves out an
independent sphere of its own and is a general law providing a summary
machinery for determining the maintenance to be awarded by the
Magistrate under the circumstances mentioned in the Section. It provides
a summary procedure, its findings are not final and the parties can
agitate their rights in Civil Court. 3
The liability imposed by Section 125 to maintain relatives,
detailed in the provision who are indigent is founded upon the
individual’s obligation to the society to prevent vagrancy and destitution.
The forerunners of present Section 125 are Section 488, 489 and 490 of
the Code of Criminal Procedure, 1898. Said provisions constituted one
family. In the words of Sir James Fitzstephen they provided a more of
preventing vagrancy, or at least preventing its consequences. They are
intended to fulfil a social purpose. Their object is to compel a man to
perform the moral obligation which he owes to society in respect of his
1 Muniandi vs. Jothi, I (1987) DMC 88 Madras.

2 K.M.S. Mani vs. Tamizharasi, I (1988) DMC 275 Madras.
3 Narayan Hadipa vs. Jayasudha Nagabansha @ Hadipa, II (1999)
DMC 639 Orissa.
wife and children. Objects of Section 125 is to provide a simple, speedy

remedy but limited relief. It seeks to ensure that the neglected wife and
children are not left beggared and destitute on the scrap heap of society
and thereby driven to a life of vagrancy, immorality and crime for their
subsistence. Chapter IX of the Code does not in reality create any serious
new obligation unknown to Indian Social Life. It is the duty of the Court
to interpret provisions of Chapter IX of the Code in such a way that
construction placed on them would not alter the very object of
the legislation. 1
When the statute nowhere dictates that residence must always be
permanent, it can not deemed to be so. If it were meant to be so, nothing
prevented the legislature to spell out its intention by giving a meaning to
the expression ‘resides or resided’ to the effect that such residence was
to be permanent character and not of a temporary nature. There is,
however, a distinction between the expression ‘reside’ and ‘stay’. The
expression ‘reside’ implies something more than ‘stay’. The expression
‘stay’ and means remaining at a place for a temporary period. The
expression ‘reside’ according to Oxford dictionary means, “to dwell
permanently or for a considerable time, to have one’s settled or usual
abode; to live in or at particular place”. A person can be taken to reside
at a place even if lives in a rented house, if such residence is not for a
purely temporary period. The real test is whether he has a permanent
place of living to which he intends to go back. If a person has no
permanent place of living, it can safely be inferred that the place where
he lives is the place where the resides. 2
According to Section 126(1)(b) of the Criminal Procedure Code
territorial jurisdiction of the Court may be determined by the present
residence of the wife as given in her petition under Section 125, Criminal
Procedure Code, irrespective of where the cause of action might have
arisen. In that view of matter, transfer of the case to another Court on
this ground will not be permissible. 3
Where the respondents did not raise the objection regarding
jurisdiction in the Trial Court and took the chance of getting order in
their favour, it cannot be said that there was failure of justice or the case
of the respondent had been prejudiced because the case was tried by the
1 Narayan Hadipa vs. Jayasudha Nagabansha @ Hadipa, II (1999)

DMC 639 Orissa.
2 Dhiren Kumar vs. Rebati Das Mallik, I (1987) DMC 1 Orissa.
676 Calcutta.
Scope of jurisdiction—Territorial Jurisdiction 587
Magistrate exercising power in that place. They should have raised the
objection at the early stage of the proceedings. Failure to do so proves
conclusively that there was no prejudice or failure of justice. 1
1 Santi Seetharamayya vs. Santi Yegna Narayana Murthy, II (1999)

DMC 329 AP.
Chapter 14
Miscellaneous entitlement
SYNOPSIS
Introduction....................................588 Litigation expenses ........................ 589
Compensatory cost .........................588 Necessary expenses of the proceedings
Delivery expenses...........................589 ....................................................... 593
Expenses after conclusion of Travelling expenses ....................... 594
proceedings ....................................589 Written Application ....................... 596
Introduction
In addition to the maintenance, a party is also entitled to various
other compensations or payments which do not strictly fall with in the
term maintenance but are none the less associated to the grant of
maintenance. This chapter deals with such entitlements.
Compensatory cost
The petitioner in one case had to attend the Ajmer Court on every
date. she was in service and therefore she had to take leave. Not only this
she had to accompany her brother and thereby had to spend lot of money.
Under these circumstances, it was directed to the non-petitioner to pay to
the petitioner Rs. 300/- on each date of hearing when she comes to attend
the Court. In addition to this following directions were also given to
enforce this payment:
‘The respondent will pay the arrears to the petitioner also at the
aforesaid rate. It there is any direction by the Trial Court in this
respect the same is modified to this extent. If the respondent has
paid any amount to the petitioner for expenses of coming and
going and of stay at Ajmer, they shall be deducted from the
arrears. The respondent will pay arrears to the petitioners within a
period of three months from today. The respondent is further
directed to give an undertaking before the Family Court that he
will not harass in any way to the petitioner when the she comes to
Ajmer to attend the Family Court. The Judge, Family Court is
also directed to see that the petitioner is not in any way harassed
by the respondent and his friends or colleagues.’ 1
1 Laxmi vs. Eshwar Maudiyani, II (1992) DMC 59 Raj.

Miscellaneous entitlement—Litigation expenses 589
Delivery expenses
A child was delivered by the wife in city clinic. However, there
was no evidence and it could not be there, as to how much expenses was
incurred by the petitioner on the delivery. Since there was no indication
of expenses it was held to be not possible to award the amount claimed.
Considering the fact that the delivery was in a fairly posh clinic, the
minimum expense that would have to be incurred is Rs. 1000/-.
Accordingly, the petitioner was held to be entitled to further sum of
Rs. 1000/- to reimburse her for the delivery expenses which she must
have incurred. 1
Expenses after conclusion of proceedings

The whole object of the provision in Section 36 is that the wife
should not be at a disadvantage in contesting the proceeding as against
her husband but should be put in a position in which she would be able
to contest the proceedings effectively, or to secure “that the wife should
be heard in the cause”. Having regard to that object, no order for
payment of the expenses of the proceeding can be made under Section
36, once the proceeding itself has come to en end, for it cannot thereafter
subserve the purpose for which it was intended viz., to enable the wife to
contest the proceeding. 2
Litigation expenses
If the Legislature intended that the spouse whose income is not
sufficient to pay maintenance to the other should not be asked to pay the
same, there is no reason why the Legislature should think that that
spouse should be obliged to pay the expenses of the proceeding to the
other spouse even if the former has no means to pay the same. While
ordering payment of the expenses of the proceeding the Court has to take
into consideration the income of the respondent i.e. the spouse from
whom such expenses are sought. 3
In another case both the learned attorney/counsel for the parties
admitted that income of both the spouse was more than Rs. 5000/-. When
the husband filed the appeal, wife was required to be summoned for
reconciliation proceedings. For that purpose, the Division Bench passed
an order that the husband should pay Rs. 5000/- to her to come to
1 Vibha Saroop Nee @ Vibha Sexena vs. Nigmendra Saroop, I (1983)

DMC 30 Delhi.
Bombay 82: 75 Bom LR 532: 1973 Mah LH 1051.
3 Gangu Pundlik Waghmare vs. Pundlik Maroti Waghmare, AIR 1979
Bom 264: 1979 Mah LJ 555: 1979 Mat LR 337.
Chandigarh, but later on when he wanted to have refund of this amount,

his petition was dismissed holding that he was bound to pay the litigation
expenses to his wife. It was held that no doubt, in the High Court wife
had not filed any application under Section 24 of the Act, but since the
husband had dragged her into this litigation, it was thought proper that
he should pay at least Rs. 5000/- to the wife as litigation expenses as this
was an additional burden of her income. 1 The same High Court has
however taken a somewhat different view in respect of original
proceedings. It has held that:
‘If the income of the spouse against whom litigation has been
commenced is sufficient to incur the expenses of legal
proceedings, such a spouse cannot claim litigation expenses on
the ground that the litigation has been foisted upon such spouse.
The amounts to pre-judging the matter. Until and unless the
litigation has been finally decided and it is found as a fact on the
basis of evidence led before the court that such a spouse has been
dragged into litigation made fide, no such conclusion can be
drawn simply because one of the spouse has come to the Court
and filed divorce petition. Assuming that the case of the spouse
who has come to the court and initiated divorce proceedings is a
meritorious one, surely such a person at the initial stage cannot
be blamed for initiating the proceedings by observing that the
litigation has been foisted on the other side.’ 2
Under Section 24 of the Hindu Marriage Act an application was
made for awarding Rs. 7,500/- (Rs. 550 towards litigation expenses,
including the counsel’s fee) and Rs. 2000/- towards journey expenses
from Barailly to Allahabad. Looking to the facts and circumstances of
the case it was considered appropriate to award a sum of Rs. 5,000/- as
legal expenses of the appeal. 3
In another case it was held that may be the amount of Rs. 2000/-
that has been awarded for expenses sounds rather high when one looks at
the costs allowable on taxation but one of the grounds on which this high
amount of expenses was allowed was that the wife will have to travel a
long distance from Jullundur to Agra defending the case. Moreover,
looking to the status of the husband and his income it was not possible to
say that the payment of this amount would put such a heavy burden on
him as to cause any irreparable injury. After all the order does not
determine the rights of the parties. It is only an interim order meant to
put the indigent spouse into funds so as to enable her to defend or
prosecute the case and to keep her body and soul together during the
1 Bhavenesh Kumar vs. Shushma Sharma, 1999(1) CCC 20 (P&H).

2 Hardeep Singh vs. Paramjit Kaur, I (1991) DMC 156 P&H.
3 Ashwani Kumar Kohli vs. Anita, 1998(3) CCC (All) (DB).
Miscellaneous entitlement—Litigation expenses 591
pendency of the case at the cost of the other spouse in case the latter is in
a position to foot the same. 1
It is not fair for wife to spend luxuriously the amount in litigation
and burden the husband whose total pay package is of Rs. 6,116,50 p.m.
This claim may be with the object and purpose to harass the husband.
Both the parties so long as their relation of husband and wife is tied up
should take care of each other and to see that wife also minimise, her
expenses of litigation and more so when after the Act of 1987 she is
entitled for free legal aid. From the order of the Court, it was found that
the amount of Rs. 1,500/- awarded as special costs may not be final
figure of the amount of expenses of litigation. It is still open to the Court
to reconsider the matter but at the same time the Court will keep in mind
that the petitioner-wife is entitled for free legal services. As a result of
the aforesaid discussion, the claim of the petitioner for sum of
Rs. 23,350/- towards litigation expenses, was held to be merit less. 2
Gujarat High Court has also taken the view that in view of
availability of legal aid, the wife is not liable to be awarded any
litigation expenses. It has held as under:
‘The petitioner may not know she is eligible for free legal aid but
the Advocate and the Presiding Officer of the Court in which the
matter was pending are suppose to know for this entitlement of
this litigant. A litigant who has been ordered to be granted
Rs. 2,000/- per month as maintenance, how she will bear out all
these expenses and wherefrom she has borne out all these
expenses and how in future she will borne out these expenses is a
matter of realisation. It is very very difficult for this lady and
equally very harsh on the part of the Advocate to put burden of
heavy litigation expenses over this poor lady more so when she is
entitled for free legal aid. This is not the only case but I am
seeing cases after cases where very sad stories are being told by
the litigants of this class either in the Court or in the Chamber
when the matters are being placed for conciliation proceedings.
There seems to be something wrong somewhere in our efforts to
make known to this class of litigants for their right to get free
legal aid. Though under Section 24 of the Hindu Marriage Act,
the husband is under legal obligation to bear out the expenses of
litigation of the wife but that is the Act of the year 1956. After
this Act of 1987 where this class of litigants are entitled for free
legal aid still a husband who belongs to lower middle class may
be saddled with all these costs or a question does arise whether he
is in a position to bear out such a luxurious litigation expenses of
1 Iqbal Singh Cheema vs. Adarsh Cheema, I (1982) DMC 282 All.
2 Sangitaben Rasiklal Jaiswal vs. Sanjaykumar Ratilal Jaiswal,
Mehsana, I (2001) DMC 19 Gujarat.
the wife. Now after this Act of 1987 possibly and legitimately the
husband may not be made responsible for the litigation expenses
of he wife. However, this is not the matter to be considered at this
stage and decided in this case. I am only concerned with the
shocking facts which have come on record that how this class of
litigants are being exploited. I find fault with the system of which
I am also the part. It is unfortunate that despite of having all these
legal literacy camps. Lok Adalats etc. we are unable to give a
message and make known to this class of litigants that they are
entitled for free legal services. Out of the total population of the
country, very nominal percentage thereof are involved in
litigation. So what is important is that there must be some system,
method or modality to make known to this class of litigants about
their right of free legal aid at the State expenses. It is not
unknown and what our system is that on receipt of summons/
notices of proceedings of the Court, a litigant will do one thing to
approach to an Advocate. So the first duty falls on the Advocate
who has been approached by this class of litigant and more so a
class of litigant who is eligible for free legal services under
Section 12 of the Act, 1987 to make her known of the fact that
she may not engage him as she is entitled for free legal aid and
may approach to the concerned Authorities. This is required to be
done at the grass root level and where the two important persons
to give this message or to make known of this right to this class
of litigants are Advocate and the Judicial Officer concerned. If
the Advocate, a professional, does not give this information to the
litigant of this category or make know him/her of this right then it
comes on the Court on the first hearing of the case to make
known him/her of their entitlement of free legal aid. If such
category of litigant appears through an Advocate, it is the duty of
the Court also to ascertain and to make know to the litigant that
he/she is entitled for free legal aid. If it has been done then only
these programmes with be successful and beneficiaries thereof
will be benefited. The Courts know this but still these litigants
are not made known of their right of free legal aid.
The petitioner is entitled for free legal aid. She should have
approached to the Authority concerned for free legal services.
Merely because she was not knowing of her this right or it was
not being made known to her by the Advocate, this burden cannot
be put on the shoulder of the husband. It was the duty of the
Advocate when she approached to him to let her know that she is
entitled for free legal services. It is not done in Trial Court as
well as in this Court also, which is clearly borne out from the fact
her also she is appearing through a paid Advocate. In this Court
also, the Advocate should have made known to her that she is
entitled for free legal services. It is unfortunate that this
programme of free legal services is not successful to the extent to
what it should have been because of this non-cooperative attitude
of the members of the Bar. The judicial officers are also equally
Miscellaneous entitlement—Necessary expenses of the proceedings 593
responsible for this non-availability of these benefits to this class

of litigants. In each case where a woman or child is a party, it is
equally a duty of the Judicial Officer concerned to let them know
that they are entitled for free legal aid. Be that as it may. It is still
open to the petitioner to approach to the Authority concerned
before the Trial Court and get free legal aid. She can also apply
for free legal aid before this Court to the Authority concerned. In
case the amount which is paid by her to Counsel and the amount
of expenses exceed the amount which is being sanctioned in her
favour towards the expenses of litigation by Authority in lower
Court, the balance has to be borne out by her. Here also she has
to bear the balance of amount of expenses which she incurred in
this revision application where the amount which is ultimately
sanctioned by the legal services Authority in her favour here in
this Court is less. However, it is expected from the learned
Counsel that they will in that eventuality not charged from his
lady the amount towards their fees exceeding the amount
sanctioned in her favour by the Authority in the lower Court and
the Court.’ 1
Necessary expenses of the proceedings
The expression employed in Section 24 of the Act is ‘the
necessary expenses of the proceedings’. In order to allow such expenses
the Court will first determine whether as a question of fact some
expenses was incurred. Then will arise the question whether such an
expenses was necessary. The second question is not always easy to
answer but it will be regulated by the circumstances of each case. A
litigant often acts on the advice of the Advocate. If the Advocate advises
a certain step or proceeding often enough the litigant helplessly follows
such an advice and incurs the expenses. Unless that advice by the
Advocate lacked care and caution or was merely intended to delay the
proceeding or to harass the husband, it will be difficult to call it
unnecessary. Whether the expenses was necessary or not is sometimes
judged by the result. It is a helpful factor but it could not be said to be
always decisive. Likewise a husband should not be saddled with
mounting expenses because a cantankerous wife adopt such an attitude.
It is quite conceivable that a husband of poor means could be well nigh
ruined in a given case by a litigious wife.
Section 7 of the Indian Divorce Act, 1869 provides that subject to
the provisions of the said Act the principles and rules of matrimonial
causes in England may be followed. These observations, therefore,
however apt for the Indian Divorce Act are no more than guides under
1 Kaliben Kalbhai Desai vs. Alabhai Karamshibhai Desai, I (2001)

DMC 295 Gujarat.
the Hindu Marriage Act the awarding of costs appears to be a judicial

discretion, the exercise whereof has to be regulated by well known
principles of sound reason, good conscience and natural justice. The
conduct of parties often reflects their motives and can always be taken
into account for granting expenses or not. Neither it is easy nor desirable
to lay down rigid rules for exercising such a discretion. The broad
principles of judicial conscience would regulate decisions in such
disputes and the Court would be well justified in refusing to finance a
wife who is apparently harassing a husband. 1
Travelling expenses
In one case the petition for divorce had been filed at Pali and the
wife lived with her parents at Hyderabad in Andhra Pradesh. It was held
that in Indian Society, it is difficult to expect that a young lady should
travel all alone this long distance from Hyderabad to Pali without
accompanying with her of a near relative. Youth cannot travel alone. The
husband should bear the travelling charges of the wife from Hyderabad
to Pali on the dates on which she actually comes to Pali to defend the
petition for divorce and to that extent the cross-objection filed by the
wife was allowed. 2
In another case the Court had clearly directed that the Family
Court will insist on the husband not only depositing the to and fro travel
expenses for the wife and her companion but also an amount sufficient
for their stay in Bombay on each visit. Even according to the Family
Court the second class fare from Bombay Central to Delhi by mail train
and from Delhi to Ghaziabad comes to Rs. 326+Rs. 12 i.e. 338/- for two
persons. The Family Court, therefore, awarded Rs. 700/- by way of
expenses and added that she will be paid an additional amount of
Rs. 150/- per day if she has to stay for more then one day. To say the
least, the Family Court has been far from just to the wife who was
required to travel a long distance from Ghaziabad to Bombay Central to
defend herself. Nothing has been allowed by way of transport charges
and lodging and boarding charges even if she has not to stay for an
additional day in Bombay. Where does the Family Court expect her to
put up in Bombay after a 24 hour journey? If the case is adjourned it
seems it the Family Court expect her to leave on the same day post-haste
for Delhi. Even on reaching Bombay after a tiring journey of 14 hours
1 Priti Parihar vs. Kailash Singh Parihar (Flt. Lt.), AIR 1975 Raj 52
(DB): 1974 Raj LW 420.
2 Dharamichand vs. Sobha Devi, AIR 1987 Raj 159: (1987) 6 IJ Rep
203: (1987) 1 Rajasthan LR 481: 1987 Raj LW 363: (1987) 2 Hindu
LR 267.
Miscellaneous entitlement—Travelling expenses 595
she is not provided any expenses by way of hotel charges, lodge and
board, for the day. Does the Family Court expect her to rush the Court
from the station and rush back to station from the Court on the
proceedings being adjourned for the day? Even the meagre payment of
Rs. 150/- is made available to her if she has to stay in Bombay for an
additional day. Holding this amount to be unjust it was observed
as under:
‘The Family Court, with respect, also did not realize that it would
be impossible to find a modest living place for two for Rs. 150/-
per day in a costly like Bombay, leave aside the expenses for
meals, etc. It seems to us that the interim order passed by the
Family Court is, for reasons best known to it, highly based. This
is more so because it had before it this Court’s order granting
Rs. 2,500/- by way of expenses to visit Bombay which provided
sufficient guideline determining the quantum of expenses to be
awarded. Besides, the Family Court has not awarded any amount
to meet the cost of the proceedings on the specious plea that she
is gainfully employed. To say the least the order is far from
satisfactory and has resulted in gross denial of justice. The order
made it impossible for the wife to meet the expenses of frequent
visits to Bombay and facilitated an ex-parte divorce decree in
favour of the husband.’ 1
The cost of the litigation shall also include what is spent by the
applicant for travelling a distance from place of her residence to the
Court. In this case the applicant was residing at Amalner which was
admittedly at a distance of about 500 to 550 kms. from Buldhana. It was
observed as under:
‘Even now a day it is not possible for a woman to undertake such
a long and tedious journey and certainly she requires help of a
male person to accompany with her. If that is the case, it is
necessary that the non-applicant-husband should pay separately
the costs of travelling of the wife and any person who will be
accompanying her and also to pay some additional charges for
their dearness allowance. The trial Judge has certainly lost sight
of this particular aspect of the case. However, henceforth
direction is given to the trial Judge that he shall direct the non-
applicant to pay the additional amount as stated above to the
applicant-wife. However, in case if the adjournment is sought by
the wife or her Advocate on any ground, in that case she will not
be entitled to get the said amount of expenses from the husband.
1 Anita Laxmi Narayan Singh vs. Lami Narayan Singh, II (1992) DMC
202 SC.
This particular amount will be in addition to the amount of the

costs of the litigation, if the same is ordered by the Court.’ 1
Written Application
The provision of the Act are for the purpose of dealing with the
matrimonial aspects of the spouses. The provisions embodied in the Act
in context with the alimony are benevolent. No strict rule has to be
applied in dealing with a prayer made by the wife in matrimonial cases
for getting alimony. Due important has to be given to the words “any
court exercising jurisdiction under this Act may at the time of passing
any decree or at any time subsequent there to”. These words mean that
the Court is empowered to consider the prayer of the wife in matrimonial
cases for permanent alimony at any time subsequent to be passing of the
decree. The total meaning of words used in Section 25 empowers the
court to grant permanent alimony to a wife in matrimonial cases in
absence of separate application, if such a prayer has been made by the
wife in the matrimonial petition itself. 2 It is submitted that the above
observation shall also apply to the other payments as well, which have
been discussed in this chapter.
1 Sadhana Deepak Naik vs. Deepak Laxman Naik, I (1993) DMC 112
Bom.
2 Kanahaiyalal vs. Chandabai, 1998(2) CCC 60 (MP).
Words & Phrases—Child 597
Chapter 15
Words & Phrases
SYNOPSIS
Introduction....................................597 Maintenance .................................. 607
Child...............................................597 Means ............................................ 608
Circumstances ................................598 Mother ........................................... 608
Decree ............................................598 Moveable property ........................ 608
During the proceedings..................599 Mutual Consent ............................. 609
Expenses.........................................600 Proceeding..................................... 610
Habitually resides with a concubine600 Property ......................................... 610
Having regards to ..........................600 Reasonable .................................... 610
His ..................................................601 Reasonable & fair provision ......... 611
Illicit relationship...........................602 Reside and residence ..................... 611
Income and means..........................602 Support .......................................... 612
Living in adultery ...........................602 Unable to maintain herself ............ 613
Living separately............................606 Waive ............................................. 613
Magistrate ......................................607 Wife................................................ 613
Introduction
Every branch of law has its own special vocabulary. It has some
time special and some time not so special definitions of the terms
frequently used in that branch of law. This chapter deals with such words
and phrases which are frequently used in this branch of law and have
been judicially considered, one way or the other.
Child
The fact that such an interpretation would be expedient and
convenient is not always a sure guide, as the legislature, if necessary,
can intervene to fill up any lacuna. In this view it was held that the
expression “child” in Section 488 Crl. P.C. while it postulates the
immediate relationship of the claimant for maintenance with the person
who is called upon to pay maintenance by the closely following neutral
pronoun “itself” signifies and emphasizes the infancy of the claimant.
The inability to maintain “itself” is related to infancy. The expression
“child” of course cannot be confined to a child of tender years, a person
below 14 or 16, as has been contended for in some cases, since in that
case there can be no doubt about its inability to maintain itself. The
question of ability to maintain one-self can arise only in the case of
young persons during adolescence. The meaning of the word ‘child’ in
Section 488 must be taken to be a minor whether under the Indian
Majority Act or the Court of Wards Act or the Guardians & Wards Act
and, thus the court differed from the decisions which have taken the view
that any person who is unable to maintain himself or herself of whatever
age, without limit would be a child under Section 488, because he is a
child of his father. The result would be a son or daughter under 18 would
be a child under the Act and where a guardian is appointed by court, the
childhood for the purpose of Section 488 would continue during the non-
age or legal infancy, that is, till the completion of 21 years. 1
Circumstances
The “circumstances” contemplated by Section 489(1) of old Code
must include financial circumstances and in that view, the inquiry as to
the change in the circumstances must extend to a change in the financial
circumstances of the wife. 2
Decree
Marriage can be based on contract or, they can be based on
sacrament. No doubt, marriage as understood in civilized society was
mostly based on religious custom. Religion treated marriage as a
sacrament. Marriage were made in Heaven and, therefore, not capable of
being brought to an end by human beings. This almost universal idea
prevailed for a long period in Man’s history. This concept of divorce
existed even in Roman times and was certainly accepted by the Quran.
However, it was unknown to Hindu Law and it was also unknown to
Christian Law. A decree of divorce was originally granted by the Pope in
the form of divorce a vinculo matrimonii. No Court whatsoever, either
Civil or Criminal or Ecclesiastical could grant such a decree. King Henry
VIII of England was anxious to divorce his wife who was the sister of
the King of Spain. The Pope refused to oblige him, so Henry was forced
to form his own Church called the Church of England and was able to get
a divorce to marry Anne Boleyn. This divorce eventually led historically
to the concept of the Ecclesiastical Courts granting a divorce which was
generally known as a divorce a mensa at thoro. For a long time in
1 Amirthammal vs. K. Marimuthu, AIR 1967 Madras 77 (DB): 1966

Mad LW (Cri) 153: (1966) 2 Mad LJ 506: 1966 Mad LJ (Cri) 832:
1967 Cri LJ 205.
2 Bhagwan Dutt vs. Kamla Devi, AIR 1975 SC 83: 1975 CrLJ 40:
1975(2) SCC 386: 1975(2)SCR 483: 1975Mad LJ (Cr) 81.
Words & Phrases—During the proceedings 599
English legal history, a divorce could only be granted by the

Ecclesiastical Courts and no by the ordinary Court. The form of the
divorce was a decree. The ordinary English Courts gave their decisions
through Judgments, but there was no decree as is understood in Indian
Law. The decision of the Court operated as enforceable decree. Even the
Letters Patent issued by the King to create the Indian High Courts used
the word ‘judgment’ and not the word ‘decree’. Thus, it was a matter of
historical evolution that the term decree was used the matrimonial
decisions recorded by the Church; the ‘decree’ was a kind of edict,
whereas the Civil Courts used the term ‘judgment’. When the English
legal system was reformed and the jurisdiction to deal with matrimonial
cases was withdrawn from the Ecclesiastical Courts and given to the
ordinary Civil Courts for historical reasons, the term ‘decree’ continued
to prevail as far as divorces and judicial separations were concerned.
When a person approached the Matrimonial Courts, what he sought was
decree for divorce or nullity, etc. If he got such a decree, the marriage
came to an end. If he failed to get such a decree, then the
marriage subsisted. 1
During the proceedings

The words “During the proceedings” in Section 24 may in the
first flush show that the party is entitled to claim maintenance only
during the pendency of the proceedings, but on a close scrutiny these
words clearly apply not only to the proceedings before the trial court but
also during the pendency of proceedings in appeal as well as during the
period between the termination of proceedings in the trial court and
filing of appeal. The appeal is only continuation of the suit of
proceedings in the trial court, without there being a suit or proceedings
in the trial court there cannot be an appeal, therefore the proceedings in
the appeal being continuation of the proceedings, the party is entitled to
claim maintenance during the period between the date of the decree and
the date of filling of the appeal. Merely because the party is unable to
file an appeal within a particular period and that too after deducting the
time for obtaining the copies, it does not mean that the party is not
entitled to claim maintenance during that period. If this interpretation is
accepted, it would be defeating the purpose of the provisions enabling a
party to claim interim maintenance pending proceedings under this Act.
‘Proceedings’ means proceedings under the Act and it is referable to the
Act only. 2
1 Sushma vs. Satish Chander, II (1983) DMC 255 Delhi.

2 M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 AP.
Expenses
The word “expenses” is a word of wider connotation and includes
“costs”, but is not limited to the costs that would be payable on a party-
and-party taxation under the rules of the Court. 1
Habitually resides with a concubine

A word which should be noted carefully is “habitually”. That is
an adverb drawn from the noun “habit” that connotes ordinary course of
behaviour, custom, accustomedness and therefore, “habitually” would
mean “as a usual practice”. The next term on which some controversy
centres in the word “reside”. It has several meanings and would take in
the sense of “dwelling in a place” or “act of living” and would indicate
that in which something permanently inheres or has its seat. What is of
relevance and importance is the adoption of a way of life by the husband.
The emphasis of entire clause (e) is on the practice of keeping a woman
by a married man and that should be kept in view while considering all
the relevant terms. If, therefore, upon evidence it is shown that a
husband has kept a mistress though at a different place, it should be
sufficient to answer the latter part of clauses (e) the whole phrase
“habitually resides with a concubine elsewhere” is indicative of a
customary behaviour of a married man though he might not have changed
his ordinary place of residence. His course of conduct spread over a
period his mental attitude in visiting the place of concubine his
assertions his involvement with such other woman should all enter the
ken of consideration to find out whether he habitually resides with such a
keep or not. By the term “habitually resides”, that emphasis is on the
“habit” and not on “residence”. If he brings the mistress in his house
where his wife is living the first part in full force applies but where he
does not bring such a mistress and keeps her outside, the second part
should always apply. 2
Having regards to
The expression “having regard to” in Section 24 conveys a
mandate that the Court shall have regard to the income of the parties.
The expression “having regard to”, “have regard to” and other allied
expressions have been the subject of judicial interpretation by our apex
Courts. The expression “have regard to” in Section 168 of the Madras
Estated Land Act, 1908, came up for consideration before the Privy

Bombay 82: 75 Bom LR 532L 1973 Mah LH 1051.
2 Kesarabai vs. Haribhau, AIR 1975 Bom 115: ILR (1974) Bom 1273.
Words & Phrases—His 601
Council. 1 The view taken by the majority of the Collective Board of

Revenue in that case was that “that requirement ‘have regard to’ the
provisions in question has no more definite and technical meaning than
that of ordinary usage and only requires that those provisions must be
taken into consideration”. Their lordships approved 2 this view which
appears to their Lordships to be “fairly clear as a matter of English” also.
These observation of the Privy Council have been quoted with approval
by the majority of the Supreme Court. 3
The Supreme Court has observed in another case 4 that “where the
law requires the court to have regard to certain provisions and the Court
does not pay that regard, it can not but be said that the trial has not been
according to law”.
In another case 5 when it was urged before the Supreme Court that
since Section 47 of the Motor Vehicles Act requires that the Regional
Transport Authority, in considering an application for stage carriage
permit, shall have regard to certain matters, the Authority must take them
into consideration and that failure to do so would be “clearly in breach of
Section 47” and would vitiate the order, the Supreme Court, while
accepting the argument, observed that “there is great force in this
contention”.
In this view of the law, it was held that the Court having been
required by Section 24 of the Hindu Marriage Act to have regard to the
in case of the parties in ordering payment of pendente lite maintenance
by one spouses to the other, must take into consideration such income in
making such order and if the Court does not do so or does not pay the
regard, then it can not but be said that the Court has acted in breach of
the relevant provisions of law and has, therefore, “acted illegally” within
the meaning of Section 115 (1)(c) of the Code of Civil Procedure to
warrant intervention in revision. 6
His
It is true that Cl. (d) of section 125 of Criminal Procedure Code,
1973 has used the expression “his father or mother” but the use of the
1 Ryots of Garabandho vs. Zamindar of Parlakiedi, AIR 1943 PC 164.

2 At page 180
3 Mysore State Electricity Board , AIR 1963 SC 1128 at 1136.
4 V.K. Verma vs. Radhey Shayam, AIR 1964 SC 1217 at page 1320.
5 Patiala Bus (Sirhind) (P) Ltd. Vs. State Transport Appellate
Tribunal Punjab, AIR 1974 SC 1174: 1974 (2) SCC 215
6 Ashit Mukherjee vs. Susmita Mukherjee, II (1986) DMC 254
Calcutta.
word ‘his’ does not exclude the parents claiming maintenance from their
daughter. Section 2(y), Cr. P.C. provides that words and expressions
used herein and not defined but defined in the Indian Penal Code have
the meanings respectively assigned to them in that Code. Section 8 of the
Indian Penal Code lays down that the pronoun ‘he’ and its derivatives are
used for any person whether male or female. Thus, in view of Section 8,
IPC read with S. 2(y), Cr. P.C. the pronoun ‘his’ in Cl. (d) of S. 125(l),
Cr. P.C. also indicates a female. Section 13(1) of the General Clauses
Act lays down that in all Central Acts and Regulations, unless there is
anything repugnant in the subject or context, words importing the
masculine gender shall be taken to include females. Therefore, the
pronoun ‘his’ as used in Cl. (d) of S. 125(l) Cr. P.C. includes both a male
and a female. 1
Illicit relationship
The word illicit is defined in the dictionaries as: Unlawful; not
authorised or allowed; Not sanctioned by law, rule or custom. In other
words it is one which is not sanctioned by law, rule or custom. In this
scheme sexual indulgence is not essential though there may be a strong
possibility of its existence. 2
Income and means

In the statutory law relating to maintenance operating in our
country for about a century, the expression ‘means’ or ‘sufficient means’
are well-known to out legislature. As early as in 1898, the expression
‘sufficient means’ was used by legislature in Section 488 of the Code of
Criminal Procedure of 1898 and has again been used in Section 125 of
the present Code of Criminal Procedure of 1973. That being so, it would
be perfectly legitimate to infer that the legislature intended a departure
and has deliberately used in word income instead of the word means to
exclude all means not yielding any income. 3
Living in adultery
The words used ‘living in adultery’ in sub-Section (4) of Section
123 Criminal Procedure Code are of limited amplitude, inasmuch as it is
for the husband to prove that the wife is continuously committing
1 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987
CrLJ 977: 1987 AIR (SC) 1100: 1987 CAR 87: 1987 (2) SCC 278:
1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553.
2 Kiran Sharma vs. Shardha Nand Sharma, I (1991) DMC 402 Delhi.
3 Gita Chatterjee vs. Probhat Kumar Chatterjee, II (1987) DMC 139
Calcutta: (1987) 2 Hindu LR 292: 1987 Cal LT (HC) 152: (1988) 92
Cal WN 302: (1988) 2 Hindu LR 20: (1988) 2 Civ LJ 416.
Words & Phrases—Living in adultery 603
violation of the marriage bed, indulging in adulterous life, i.e., living in

quasi permanent union with the person with whom she was caught red
handed. To establish this, more than one instance of adultery has to be
brought home to the knowledge of the wife, thereby constituting the term
‘living in adultery’ within the meaning of sub-Section (4) Section 125
If a husband has contracted a marriage with another woman, it
shall be considered to be just ground for his wife’s refusal to live with
him. If wife developed intimacy and even sexual relations with another
while the husband was at Assam, the husband is more to be blamed than
the wife. In any event, it cannot be said by wife’s intimacy with a single
person that the wife was living in adultery. 2
A learned Judge of Madras High Court 3 considered the decisions
of various High Courts and held that this term ‘living in adultery’ has
been consistently held to mean an outright adulterous conduct where the
wife lives in a quasi-permanent union with the man with whom she is
committing adultery.
The trial court in a case of this nature must consider the evidence
on record to ascertain as to whether the present petitioner was living
with in a quasi-permanent manner as held. This being absent in the
judgment of the trial court, the Session Judge was held to be right in
remanding the case for re-trial. 4
The phase ‘living in adultery’ used in Section 488(4) of the
Criminal Procedure Code 1898 which is akin to Section 125(4) of the
present Cr.P.C. has been considered by various High Court in India and
have taken the uniform view that living in adultery denotes a continuous
course of conduct or living in the state of quasi-permanent union with
the adulterer.
The Rangoon High Court 5 has observed as follows:
“Emphasis must be laid upon the words living in ‘adultery’. The
words used are not ‘committed adultery’ and there is clearly a
great distinction between ‘committing adultery’, and ‘living in
adultery’. ‘Living in adultery’ denotes a continuous course of
conduct and not isolated acts of immorality. One or two lapses
from virtue would be acts of adultery but would be quite
1 Ravendra Singh vs. Kapsi Bai, II (1991) DMC 422 MP.

2 Sarla vs. Mahendra Kumar, II (1989) DMC 145 Rajasthan.
3 Kasturi vs. Ramasamy, 1979 Crl LJ 741 Madras.
4 Bilawati Pegu vs. Phukan Pegu, I (1988) DMC 95 Gauhati.
5 Ma Mva Khin vs. N.L. Godenho, AIR 1936 Rangoon 446.
insufficient show that the woman was ‘living in adultery’, which

means, so far as I understand the expression, that she must be
living in a state of quasi-permanent union with the man with
whom she is committing adultery.”
The Madras High Court 1 has also held that living in adultery is
something different from leading an unchaste life and unless the wife is
actually living in adultery at or about the time of the applicant, she is not
disentitled to obtain maintenance and continued adulterous conduct and
not occasional lapses from virtue constitutes sufficient reason for
refusing maintenance.
A Division Bench of the Mysore High Court 2 after adverting to
various decisions of several High Courts in India 3, held that:
“It is not a stray act or two of adultery that disentitles a wife from
claiming maintenance from her husband but it is a course of
continuous conduct on her part by which it can be called that she
is living an adulterous life that takes away her right to claim the
said maintenance.”
Kerala High Court 4 after considering the decision of several High
Court has held that an occasional lapse from virtue, or immoral conduct
long before the time maintenance is applied for does not disentitle a wife
for relief under Section 488 of Cr.P.C., 1898 and observed as follows:
“The provision that the wife is disentitled to maintenance if she is
‘living in adultery’ means that the husband can withhold his aid
only when her adulterous conduct has continued for some length
of time suggesting thereby that she has found another albeit less
honourable haven from the chill winds of penury.”
The same Court in another decision 5, has held that “living in
adultery means something different from leading an unchaste life”. One
or two lapses from virtue would be acts of adultery but would be quite
insufficient to show that the woman was living in adultery.
In Kasthuri vs. Ramasamy, 6 while construing the phrase ‘living in
adultery’ used in Section 125(4) of the Cr.P.C. the Madras High Court
has observed that “The term” ‘living in adultery’ has now been
consistently held to mean an outright adulterous conduct where the wife
1 Laksmi Ambalam vs. Andiammal, AIR 1938 Mad 66; Kista Pillai vs.
Amirthammal, AIR 1938 Mad 833.
2 Subramaniyam vs. Ponnakshiammal, AIR 1958 Mysore 41.
3 Patala Atchamma vs. Patala Mohalakshmi, ILR 30 Madras 332
4 Nesamma vs. Hentri, Kerala LT 964.
5 Mercy vs. Varghese, 1968 Ker. LT 154.
6 1979 Cri. LJ 741.
Words & Phrases—Living in adultery 605
lives in a quasi-permanent union with the man with whom she is

committing adultery’. In another case it has been observed as under:
“As already stated, even assuming for a moment, that the
respondent had committed adultery with Kunni Raman on that
day, it does not affect the merits of the case for maintenance,
because it was only a single incidence and it cannot be construed
as ‘living in adultery’. There is no evidence on the side of the
husband that after that incident she has been continuously living
with her paramour. 1
It is clear from the consistent view taken by the various High
Court referred to above that the phrase ‘living in adultery’ used in
Section 125(4) of the present Cr.P.C. and in Section 488(4) of the
Cr.P.C., 1898 contemplates a continuous course of conduct on the part of
the wife with the adulterer or paramour as the case may be and a single
act of unchastity or a few lapses from virtue will not disentitle the wife
from claiming maintenance from her husband under Section 125 of the
The phrase ‘living in adultery’ refers to course of guilty conduct
and not a single lapse from virtue. The term “adultery” is to be
understood in the light of the social ideas of the community as being a
serious breach of the matrimonial tie. “Living in adultery” — mere
friendship with a man does not amount to adultery within the meaning of
Section 125(4), Criminal Procedure Code. “Living in adultery” means
the following of a course of continuous adulterous conduct. While
determining the factum of “living in adultery” the Court must consider
evidence on record to ascertain as to whether the wife was living in
quasi-permanent union with a man with whom she was allegedly
committing adultery. It is for the husband to prove that the wife is
continuously committing violation of the married bed, indulging in
adulterous life, by living in quasi permanent union with her paramour. In
other words, “living in adultery” means an outright adulterous conduct
where the wife lives in a quasi permanent union with a man with whom
she is committing adultery, ‘shortly’ before or after the petition
for maintenance. 3
The words “living in adultery” are merely indicative of the
principle that the single or occasional lapse from virtue is not a sufficient
1 Narayanan Nair vs. Karthiyayini, (1983) MLJ (Cri) 115.

2 Naranath Thazhakuniyil Sandaha vs. Kottayat Thazhakuniyil
Narayanan, I (2000) DMC 508 Kerala.
3 K. Veeriah vs. Muthulakshmi, II (1999) DMC 287 Madras:
1999(1) HLR 181.
reason for refusing maintenance. To reiterate the continued adulterous

conduct is what is meant by “living in adultery”. 1
The phrase “living in adultery” used in Section 125(4) of the
present Criminal Procedure Code and in Section 488(4) of the Criminal
Procedure Code., 1898 contemplates a continuous course of conduct on
the part of the wife with the adulterer or paramour as the case may be
and a single act of unchastity or a few lapses from virtue will not
disentitle the wife from claiming maintenance from her husband under
Section 125 of the Criminal Procedure Code. 2
The expression “if she is living in adultery” undoubtedly
connotes a course of adulterous conduct more or less continuous. An
occasional lapse would not be a sufficient reason for refusing
maintenance with the ambit of Sub-section (4). Therefore, a Magistrate
has to prove and find out whether at or about the time of the application,
there has been an adulterous conduct on the part of the wife. Further,
there must be clear proof of adultery. A suspicion nurtured by the
husband will not disentitle the wife to receive the maintenance under the
Code. It is true that direct evidence of adultery can seldom be given, but
at the same time there must be some evidence to prove the allegations of
adultery and a mere bazaar gossip would not prove adultery. Since Sub-
section (4) is in the nature of an exception to the main section, it is for
the husband claiming protection under the said provision to show that the
said sub-section is applicable, that is to say, the husband must establish
that the wife is living in adultery. 3
The words “is living in adultery” have been considered in Section
488 to Criminal Procedure Code. Many High Court have held them to
mean a continuous course of adulterous life as distinguished from one or
two lapses from virtue. Living in adultery is wider than mere living as a
concubine or as a kept mistress. The word “is living” cannot mean “was
living”. It is true that it would not be possible to lay down any hard and
fast rule. Each case must be decided upon its own facts. 4
Living separately
Living separate by mutual consent can not be equated with living
separate because of consent decree. The fact that the applicant consented
1 K. Veeriah vs. Muthulakshmi, II (1999) DMC 287 Madras: 1999(1)

HLR 181.
2 Sandha vs. Narayanan, II (1999) DMC 411 Kerala.
3 Rachita Rout vs. Basanta Kumar Rout, II (1986) DMC 448 Orissa.
4 Pattayee Ammal vs Manickam Gounder, AIR 1967 Mad 254: (1966)
79 Mad LW 620: 1967 Cri LJ 900.
Words & Phrases—Maintenance 607
to a decree for judicial separation would only indicate that he agreed

with the charges levelled against them. Consenting to the charge levelled
by the non-applicant cannot in law be accepted as consenting to live
separately. The test in such cases is to find out if the agreement between
the parties was for purposes of living separately or was forced by
circumstances. 1
In Ajitsingh Hakamsingh vs. Labhkaur, 2 the Gujarat High Court
took the view that living separately because of force of circumstances
does not amount to living separately by mutual consent. In Ram Chand v.
Jiwan Bai, 3 it was held that whether a particular compromise amounted
to live separately by mutual consent or not is a question of fact in each
case. In an old case, 4 it was held that living separately under an
agreement settled by Panchayat to whom disputes between the husband
and wife were referred is not living separately by mutual consent.
It is, therefore, clear that what is relevant for the case is not the
factum of living separately but the consent to live separately. When a
perusal of the consent decree for judicial separation indicated that there
was no consent as such to live separately, it was held that this cannot
amount to her agreeing to live separately by mutual consent. 5
Magistrate
The words “the Magistrate” would mean the Magistrate who had
passed the first order of maintenance, because this interpretation is
strengthened by the fact that Section 128 Cr.P.C. which is the section for
enforcement of the order of maintenance specifically provides that such
petition under Section 125 Cr.P.C. may be presented before “any
Magistrate”. Therefore, in these circumstances the petition under Section
127 Cr.P.C. will have to be filed before the Magistrate who has passed
the first order of maintenance. 6
Maintenance
Heading of Section 24 of the Hindu Marriage Act, 1955 is
“Maintenance pendente lite and expenses of proceedings”. The section,
however, does not use the word “maintenance”, but it appears that the
words “support” and “maintenance” are synonymous. “Support” means
“to provide money for a person to live on”, like “he supports a family” or
1 Raghunath vs. Suman, I (1988) DMC 282.

2 1971 Cr LJ 888.
3 AIR 1958 Punjab 431.
4 Tekchand vs. Kalavantibai, AIR 1941 Sind 214.
5 Raghunath vs. Suman, I (1988) DMC 282.
6 G. Balraj vs. Mallamma, II (1984) DMC 232 AP.
“he supports his old mother”. Maintenance is “an act of meaning”, i.e. to
support with money. For example, “he is too poor to maintain
his family”. 1
Means
The expression “means” in Section 125 of the Code does not
signify only the visible income, such as, real property or regular source
of income or a definite employment. A person who is able-bodied and
who does not suffer from any physical or mental incapacity can be
considered as a person who has the capacity to earn sufficient income
because his physical and mental capacity provide him the capacity to
earn. Therefore, even if a person who has no definite source of income or
a regular source of income, he cannot escape his liability to
pay maintenance. 2
Mother
The words “his mother” includes natural mother and not step
mother. The right of the step mother in the coparcenary property does not
justify her claim under Section 125, Cr.P.C. It has for this reason that no
explanation was appended in this Section to show that even a step mother
is included within the connotation of mother. 3
Moveable property
The definition of “moveable property” given in the Penal Code, is
basically meant for the provisions contained in the Indian Penal Code
itself. The Penal Code classifies the offences under various heads. Many
of those heads deal with various items of moveable property. 4
When the framers of the Indian Penal Code were aware of and
were, in fact intending to provide for defining and penalising the
offences pertaining to moveable property, both tangible and intangible,
the connotation of the expression ‘moveable property’ ought to be
restricted to certain types of property when the intention was to deal with
tangible moveable property alone. This does not mean that the Indian
Penal Code, by itself, does not recognise the distinction between the
tangible moveable property and intangible moveable property at all.
When the Indian Penal Code itself does not do away with this distinction
and when it purports to deal with tangible moveable property under
(1991) DMC 485 Guj.
3 Sarju Prasad vs. Damyanti, II (1984) DMC 251 All.
Words & Phrases—Mutual Consent 609
certain provisions and intangible moveable property under other

provisions, it could hardly be said the definition of ‘moveable property’
as corporeal property of every description was supposed to apply for
all purposes. 1
It is not unknown that the law defines the same expression
differently in different manner to serve the different purposes for which
various legislations are made. The context and the use of the expression
“moveable property” in Section 421 of the Code of Criminal Procedure is
altogether when that provision is to be read in the context of the civil
right which are to be adjudged upon and settled by a decision of punitive
law proceedings under Chapter IX of the Code of Criminal Procedure
than the context and the use of that expression in punitive proceedings.
The definition of expression “moveable property” given in the Indian
Penal Code cannot be legally inducted in to the aforesaid provisions for
the purpose of determining the scope of the application of the aforesaid
provisions, much less for the enforcement of the right determined and
settled in proceedings like proceedings under Chapter IX of the Code of
Criminal Procedure. 2
Mutual Consent
“Mutual consent” as used in sub-section (4) of section 125 of
Criminal Procedure Code, 1973 means a consent on the part of the
husband and wife to live apart, no matter what the circumstances may be.
Where a wife refuses to live with the husband on some specific ground
such as cruelty, or the fact that he is keeping another wife, it cannot be
said that the husband and wife are living apart by mutual consent if the
husband does not insist that the wife should live with him. 3
The test therefore should be to find out if the agreement for
separate living and payment of maintenance was the outcome of the
desire of both parties, independently reached by each of them, or if one
of the parties was forced to submit by circumstances to such agreement.
Where the wife is not prepared to live in a separate house but insists on
living with the husband, but he starts living separate, or where the
husband having an option to live with his wife chooses to live separate,
it cannot be said that they are living separately by mutual consent. But
where each party finds it impossible to live amicably and comfortably

2 Bhagwat vs. Baburao, ibid.
3 Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi,
AIR 1965 Manipur 49: 1965 (2) Cri LJ 785.
with the other and each party and there is consent that they should live
separately, the separate living is by mutual consent. 1
Proceeding
The word “proceeding does not have a fixed connotation with a
definite meaning attached to it. The ambit of the meaning of this phrase
will be governed by the context. The word “proceeding:” ordinarily
relates to forms of law, to the modes in which judicial transactions are
conducted. The word “proceeding” in a general sense means “the form
and manner of conducting of judicial officer”. 2 It can include within
itself suit, appeal and second appeal. In the context, the word
“proceeding” would include the appeal as well, particularly when for the
“proceeding”, the words “suit” has already been written. The intention of
the Parliament appears to be that even the appeals pending on the date of
enforcement of the Act, should be decided in accordance with the
amended law. 3 An appeal under Section 28 of the Act is a proceeding for
the purposes of Section 24 of the Act. 4
Property
It would be quite wrong and unjust to exercise that discretionary
power to enable her to do something by a side door which one could not
otherwise do. Therefore the pump sum payment can not be included in
the term property. 5
Reasonable
The expression “reasonable” is a relative term. What may be
reasonable in one case may not be necessarily reasonable in another case.
Reasonableness of the quantum of compensation has not to be
determined by merely having regard to the petitioner’s own income and
the income of the respondent but also by having regard, as far as may be,
to the standard of life maintained by the family to which the parties
belong. The rule that is no case maintenance should be granted at a rate
or more than one-fifth of the husband’s income is not only unreasonable,
1 Laisram Nipamacha Singh vs. Khaidem Ningol Sakhi Devi,

AIR 1965 Manipur 49: 1965 (2) Cri LJ 785.
2 Black’s Law Dictionary, page 1368
3 Ram Narain Pathak vs. Urmila Devi, AIR 1980 All 344:
1980 All WC 281.
4 Arya Kumar Bal vs. Smt. Ila Bai, AIR 1968 Calcutta 276: Sushil
Kumar Gupta vs. Susma Gupta, I (1982) DMC 207 Delhi.
5 Pace vs. Doe, (1977) 1 All ER 176: (1982) 2 DMC (BJ) 74.
Words & Phrases—Reside and residence 611
but also irrational which may some time defeat the very object of
avoiding vagrancy; the reason d’etre of Section 30. 1
Reasonable & fair provision

The two phases ‘reasonable and fair provision’ and ‘maintenance’
carry distinct meaning is also clear from the fact that the Legislature has
chosen to employ the said expression in one section. If they were to
convey the same meaning there was no reason for the Legislature to use
two different expressions. The legislature does not use toutologous
language in this manner. It does not use words unnecessarily. Every part
of a statute should be given as far as possible its full meaning and effect
and no word or clause should ordinarily be rejected as superfluous.
Lord Hewart, C.J. has observed:
“It ought to be the rule, and we are glad to think that it is the rule,
that words are used in an Act of Parliament correctly and exactly,
and not loosely and inexactly. Upon those who assert that that
rule has been broken the burden of establishing their proposition
lies heavily. And they can discharge it only by pointing to
something in the context which goes to show that the loose and
inexact meaning just preferred.” 2
The two expression must, therefore, carry two different meaning.
This view is fortified by the manner in which these two words are
employed in the sections. Section 3(1)(a) says “reasonable and fair
provisions and maintenance to be made and paid to her within the Iddat
period”. The words ‘to be made’ must obviously follow the word
“reasonable and fair provision” to make it read as “reasonable and fair
provision” to be made to her within the Iddat period. The words ‘to be
paid’ must follow the words maintenance to make it read as
“maintenance to be paid within the Iddat period”. Any other arrangement
of the words would make no sense. 3
Reside and residence

The Dictionary meaning of “resides” is “to droll permanently or
continuously; have a settled abode for a time; have one’s residence or
domicile”. “Reside” means something more than a flying visit or a casual
stay. There shall be an intention to stay for a period, the length of which
1 Rakesh Chandok vs. Vinod, II (1982) DMC 325 J&K.: AIR 1982
J&K 95: 1982 Srinagar LJ 127.
2 Spiller Limited vs. Cardiff (Borough) Assessment Committee and
Pritchard (Revenue Officer for the Cardiff Assessment Area),
(1931) 2 KB 21.
DMC 634 Bombay.
depending upon the circumstances of each case. A person resides in a

place if he makes it his abode permanently or even temporarily. In order
to find out whether the petitioners actually resided or they had some
intention to remain at a place and nor merely to pay a casual visit, it
should be considered whether the period of stay was merely for a visit or
for residence although temporary. 1
When the statute nowhere dictates that residence must always be
permanent, it can not deemed to be so. If it were meant to be so, nothing
prevented the legislature to spell out its intention by giving a meaning to
the expression ‘resides or resided’ to the effect that such residence was
to be permanent character and not of a temporary nature. There is,
however, a distinction between the expression ‘reside’ and ‘stay’. The
expression ‘reside’ implies something more than ‘stay’. The expression
‘stay’ and means remaining at a place for a temporary period. The
expression ‘reside’ according to Oxford dictionary means, “to dwell
permanently or for a considerable time, to have one’s settled or usual
abode; to live in or at particular place”. A person can be taken to reside
at a place even if lives in a rented house, if such residence is not for a
purely temporary period. The real test is whether he has a permanent
place of living to which he intends to go back. If a person has no
permanent place of living, it can safely be inferred that the place where
he lives is the place where the resides. 2
Support
Section 24 of Hindu Marriage Act, 1955 uses both terms,
“Maintenance” in the margin and “Support” in the body of the section.
The word “support” is doubtless one of the most elastic in the language.
“Maintenance” means the act of maintaining, and denotes the regular
supply of food, clothing and lodging, the provisions of the necessaries
and the conveniences of life. These will in each case depend in part on
the standing of the parties, their wealth and the environment to which
they in their married state have been accustomed, as every case will be
different and no case may be decided except upon its particular facts. 3
In Preeti Archana Sharma vs. Ravind Kumar Sharma, 4 it was
observed that “Section 24 uses the word “support” and does not uses the
1 Sadasivuni Pushpa vs. S. Divakar Rao, I (1985) DMC 380 Orissa:

Ananth Gopal Pai vs. Gopal Naryana Pai, II (1984) DMC 470
Karnataka.
2 Dhiren Kumar vs. Rebati Das Mallik, I (1987) DMC 1 Orissa.
3 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi I : 1984
4 AIR 1979 Allahabad 29.
Words & Phrases—Wife 613
word “standard” or “status”. Dissenting from this decision it was held

that the word “support” is of wide import. Support has to be according to
the standard of the parties. Maintenance has to be fixed according to the
standing of the parties, their wealth and the environment to which they in
their married state have been accustomed. 1
Unable to maintain herself

The phrase “unable to maintain herself” means unable to earn a
livelihood. This obviously means that the earning is such that the wife
can maintain herself without depending upon others. But merely because
a deserted wife earns a paltry sum by engaging herself in some
profession which may not even be sufficient to give one meal per day it
cannot be said that she is able to maintain herself with the income she
earns. The income must be such which would be sufficient for an
ordinary person to be maintained out of the same. 2
Waive
The word ‘waive’ according Chambers 20 th Century Dictionary
means, “to put away, reject, to abandon, forsake to vacate, to resign: to
outlaw (a woman—her status in the eyes of the law being such that the
usual term was not applicable to her) (hist); to abandon (stolen goods):
to give up voluntarily, as a claim or a contention (law); etc”. Simply
because the wife has not claimed maintenance for a long period, it does
not mean that she has completely abandoned her right or voluntarily
given up her right to claim maintenance. 3
Wife
The term “wife” appearing in Section 125(1) of the Code means
only a legally wedded wife. 4 Section 5 of Hindu Marriage Act, 1955 lays
down, for a lawful marriage, the necessary condition that neither party
should have a spouse living at the time of the marriage. A marriage in
contravention of this condition, therefore, is null and void. Such
marriage must, therefore, be treated as null and void from its very
inception. The attempt to exclude altogether the personal law applicable
to the parties from consideration also has to be repelled. The section has
been enacted in the interest of a wife, and one who intends to take
benefit under sub-section (1)(a) has to establish the necessary condition,
2 Namitarani Bose vs. Dipak Kumar, II (1986) DMC 50 Orissa.
4 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, II (1982)
DMC 434 Bombay.
namely, that she is the wife of the person concerned. This issue can be
decided only a reference to the law applicable to the parties. It is only
where an applicant establishes her status or relationship with reference to
the personal law that an application for maintenance can be maintained. 1
Though wording used in the Explanation is ‘includes’, it does not
make the expression “wife” inclusive in the Explanation. The additional
categories of women sought to be covered by the explanation are
exhaustive, in the context. The word ‘includes’ has been used here to
mean “extends” to the categories mentioned in the Explanation. Even if
it is assumed that the categories of divorce women mentioned in the
Explanation are inclusive then also the Explanation cannot be held to
cover a woman against whom a decree of divorce has been obtained by
her husband, for the aforesaid incongruous situation it may lead to. The
Legislature cannot be deemed to have intended to enact a law which may
lead to an anomaly. 2

1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93:
HLR 579 Bombay.

Law of Maintenance by Shashi Kiran

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Chapter 1

Permanent alimony and maintenance.— (1) Any Court exercising

Section 31 of J&K Hindu Marriage Act, 1980 is also in verbatim

not leading a chaste life, it may, at the instance of the husband

Provided that if the husband afterwards from any cause becomes

The above provisions are though not identical except some

defiant debaucherous conduct. There may be cases where the opponent is

1 Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985)

Agreement between parties

49 of Registration Act, 1908. Such document cannot be looked into for

1 Nanigopal Chakravarty vs. Renubala Chakravarty, AIR 1965 Orissa

1 Winfred Dhanraj Sameul vs. Betsy Ratnakumari, II (1992) DMC

1 Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB).

taken as a relevant factor in assessing the conduct of the parties and in

1 Rajagopalan vs. Kamalammal, I (1982) DMC 171 Madras: AIR 1987

Section 25 of the Act the effect of non-reconciliation on the part of the

1 Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP.

Considerations for granting alimony

After all, court cannot be expected to adopt a mechanical

In another case arising out of Hindu Marriage Act, 1955 it was

1 Aruna Basu Mullick vs. Dorothea Mitra, II (1983) DMC 289

have proceeded on the assumption that this sub-section vests no

1 Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985)

the type mentioned earlier. If a decree is refused, then no order for

1 Sushma vs. Satish Chander, II (1983) DMC 255 Delhi.

The divergence of judicial opinion of different High Courts as

Distinction with maintenance

use the word ‘application’. Thus, the Legislature made a distinction

Divorce due to mental disorder

1 Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184:

be no occasion to refuse to grant permanent alimony since

is responsible, she cannot persuade this Court for grant of such

Effective date of modification

1 Umesh Chand Sharma vs. Rmeshwari Devi, II (1982) DMC 261

Entitlement only after divorce

Grant of alimony in civil suit

1 Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP.

1 Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi.

It was also directed that the husband shall pay alimony of a

Maintenance continued as alimony

1 Mahir Narayan Mohanty vs. Sadyalaxmi Patnaik, I (1991) DMC

Meaning of ‘husband’ and ‘wife’

1 Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983

always conferred power upon the court to alter the amount of

restitution of conjugal rights, decree for annulment of marriage and

1 Kuldip Chand v. Geetha AIR 1977 Delhi 125, Govindarao v.

In regard to the rights of a woman whose marriage is void or

1 Shantaram Tukaram Patil vs. Dagubai Tukaram, 1987 (2) AIHLR

aspect of the matter and if on perusal of that evidence it could be

Powers of Appellate Court

1 Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H.

in adultery or was leading an immoral life, her application for permanent

Gynaecology and as such she was capable of earning substantial income

1 Lokeshwari vs. Srinivasa Rao ibid

Where the parties had agreed that a total consideration of

1 Balwinder Singh vs. Raj Rani, I (2001) DMC 427 P&H.

Right after passing of decree

Stage of granting alimony

passing of decree or at any time subsequent thereto. There is nothing in

Act. Therefore, the reasonable interpretation to be placed, would be that

1 Darshan Kaur vs. Malook Singh, II (1983) DMC 302 P&H.

1 Umarani vs. D. Vivekannandan, II (2000) DMC 422 Madras.

maintenance. If not, she is entitled to a lump sum or a periodical

1 Sheela vs. Tungal Singh ibid.