Allahabad High Court
Virendra Prasad Srivastava vs Smt. Radha Rani And 2 Ors. on 1 October, 2013
Bench: Arvind Kumar (Ii)
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
Case :- MISC. SINGLE No. - 3179 of 2008
Petitioner :- Virendra Prasad Srivastava
Respondent :- Smt. Radha Rani And 2 Ors.
Counsel for Petitioner :- Shivam Sharma
Counsel for Respondent :- C.S.C., Manoj Kumar Misra
Hon'ble Arvind Kumar Tripathi (II),J.
1. This writ petition has been filed by Virendra Prasad Srivastava challenging the order dated 6.6.207 passed by the learned Additional Chief Judicial Magistrate, Gonda by which he has allowed the application of Smt. Radha Rani, adn directed the petitioner to pay Rs.1000/- per month as maintenance.
2. Heard Shri Shivam Sharma, learned counsel for the petitioner, and Shri Manoj Kumar Misra, learned counsel for respondent no.1.
3. It is admitted case of Smt. Radha Rani that her father died in 1990, and her mother died in 1998, and she has inherited the entire agricultural land of about 18 bighas, Thus, the questions involved are that whether on this ground she is not entitled for maintenance from her husband, and if yes, from which date.
4. Admittedly, the relationship between Virendra Prasad Srivastava and Smt. Radha Rani is of husband and wife. It has also been alleged in the application under Section 125 Cr.P.C. that about ten year earlier, the husband left his wife Smt. Radha Rani in her paternal house, and after that he contracted a second marriage with Mangeshlata Srivastava, daughter of Shri Jugal Kishore..
5. Smt Radha Rani has admitted that she has not sown any crop on the land, and the land is in her joint holding along with twelve other bhoomidhars, and the income is not sufficient so that she may maintain herself.
6. Maintenance is a right, which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation, but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question, which the court is called upon to consider is whether she was justified to live separately from her husband, and still claim maintenance from him? If the reply is in affirmative, she is entitled to claim maintenance.
7. In the case of Chaturbhuj v. Sita Bai, AIR 2008 SC 530 the Apex Court has held as under: -
"The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, AIR 1978 SC 1807 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short the 'Constitution'). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and others, 2005 Cr.L.J. 2141. (para 5)
Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. (para 6)
In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi, AIR 1975 SC 83 it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. " (para 8)
8. As discussed above, the wife is entitled for maintenance, even though she might be earning some meager amount from the agricultural land. The meager income is not sufficient to rule out application under Section 125 Cr.P.C. It has to be established that with the amount she earns, the respondent wife was able to maintain herself.
9. In the instant case, the petitioner has not proved that the wife was earning so much amount, which was sufficient for her maintenance, according to her status of being his wife.
10. Now, the only consideration, which is left is quantum of maintenance. The court below has allowed, and awarded Rs.1000/-per month from the date of filing of application.
11. A perusal of application under Section 125 Cr.P.C. reveals that the marriage was solemnized on 22.2.1972, and bidai took place on 24.2.1972. The wife was left in her maika ten years prior to filing of the petition, and since then not a single penny was paid to the wife till the filing of application under Section 125 Cr.P.C..
12. From the material on record, it is clear that the wife is residing in a house of her parents, which, now, after their death, belongs to her. It is true that the petitioner could not state as to what was the actual amount received by the wife from the cultivation of land, and the wife herself has not stated the amount of income she is receiving from the agricultural land, but this is one of the consideration, which is relevant and material while fixing amount of maintenance.
13. Admittedly, the husband is a central government employee, and also has some agricultural land. The petitioner has admitted in his cross examination that he is employed since 1984. Considering the status of the petitioner, the amount, which the Magistrate has granted, cannot be said to be excessive, and also it cannot be said that the Magistrate has erred in amounting the maintenance from the date of application.
14. In the case of Shail Kumari Devi and another v. Krishan Bhagwan Pathak, (2008) 9 SCC 632, the Apex Court has held that "it is open to the Magistrate to award maintenance from the date of application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in sub Section (1) of Section 125 Cr.P.C. in absence of express provision to that effect."
15. Considering the fact that the wife was deserted ten years prior to filing of the petition, I am of the opinion that the learned court below has not erred in granting maintenance amount from the date of application
16. In view of what has been stated above, this writ peition is liable to be dismissed, and is hereby dismissed. .
Order Date :- October 1, 2013
Anupam
(Justice Arvind Kumar Tripathi - II)
