Appeal
Question of law: Can a husband excuse to pay maintenance to his wife after obtaining a decree for restitution of conjugal rights?
2. Will a husband, who secures a decree for restitution of conjugal rights, stand absolved of paying maintenance to his wife by virtue of Section 125(4) of the Code of Criminal Procedure, 1973, if his wife refuses to abide by the said decree and return to the matrimonial home?
The wife preferred this appeal after Hon’ble High Court confirms the aforesaid question
3. This intriguing question was answered in the affirmative by a learned Judge of the Jharkhand High Court, vide order dated 04.08.2023 in Criminal Revision No. 440 of 2022. Aggrieved, Rina Kumari @ Rina Devi @ Reena, the wife, is in appeal.
Facts
Matrimony dispute and result
4. The appellant, Reena, and respondent No. 1, Dinesh Kumar Mahto @ Dinesh Kumar Mahato, were married on 01.05.2014. They parted ways in August, 2015, and Reena started living at her parental home. Original (MTS) Suit No. 495 of 2018 was instituted by Dinesh on 20.07.2018 before the Family Court, Ranchi, under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights. Reena contested the suit by filing her written statement on 25.04.2019. Dinesh claimed that Reena left the matrimonial home on 21.08.2015 and did not return thereafter. According to him, attempts were made during August and October, 2017, to bring her back but she refused to come. He stated that his parents were very old and needed to be taken care of but Reena was not there to do so. On the contrary, Reena asserted that she was subjected to torture and mental agony by Dinesh, who demanded ₹5 lakh to purchase a four-wheeler. She alleged that he had extramarital relations. Further, she stated that she suffered a miscarriage on 28.01.2015 but Dinesh did not even come to see her from his workplace at Ranchi and it was her brother who took her to Dhanbad for medical care. She claimed that it was Dinesh who persuaded her to go to her parental home in August, 2015, on the occasion of Raksha Bandhan and he never truly tried to bring her back thereafter. She claimed that it was she who had gone to her matrimonial home in the year 2017 along with her relations but they were forced to return as Dinesh and his family members treated them badly. She stated that she was ready to return to her matrimonial home if Dinesh did not demand money to purchase a car and if she was not ill-treated by him and his family members. Her further conditions were that she should be allowed to use the washroom/toilet in the house, as she was not allowed to do so earlier, and she should also be allowed to use an LPG stove to prepare food, as she had to do so by using wood and coal hitherto. She concluded her written statement by asserting that the suit for restitution filed by Dinesh was nothing but a tool to save himself from the effect of laws which were put in place for women’s safety and prayed that the suit be dismissed with costs. Reena, despite filing the above written statement, failed to appear thereafter before the Family Court.
Additional Principal Judge directed reena to resume conjugal life with dinesh within two months
5. By judgment dated 23.04.2022, the learned Additional Principal Judge-II, Additional Family Court, Ranchi, decreed Dinesh’s suit for restitution of conjugal rights. Therein, it was noted that Dinesh had attempted to bring his wife back only once but, relying on the evidence of his witnesses, the Family Court concluded that he wanted to live with her as husband and wife. As no evidence was adduced by Reena, the Family Court held against her as regards her allegation that Dinesh demanded ₹5 lakh to purchase a car and her allegation of ill treatment and torture by him and his family members. As to her two conditions, the Family Court noted that Dinesh was a Junior Lineman in Jharkhand State Electricity Board and observed that he would be expected to provide an LPG stove to his wife to prepare food. Opining that there must be something more serious than the ordinary wear and tear of married life for a wife to withdraw from the society of her husband, the Family Court held in Dinesh’s favour. He was, however, directed to ensure the respect and dignity of his wife and to see that her conditions with regard to cooking and toilet facilities were complied with. Reena was directed to resume conjugal life with Dinesh within two months. Admittedly, Reena did not abide by this decree.
Reena lodged complaint under section 498A IPC
6. Significantly, in the meanwhile, on 10.08.2018, Reena lodged a complaint under Section 498A IPC against Dinesh, in C.P. Case No. 3270 of 2018. As a result of this, he was sent to prison and was consequently suspended from service for some time. The case is stated to be pending. Thereafter, on 03.08.2019, Reena instituted Original Maintenance Case No. 454 of 2019 against Dinesh seeking maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for brevity, ‘the Cr.P.C.’). This case was allowed by the learned Principal Judge, Family Court, Dhanbad, vide order dated 15.02.2022, i.e., before the decretal of Dinesh’s suit for restitution. Therein, the Family Court noted Dinesh’s stand that he was ready and willing to keep Reena with full dignity but held, on the evidence adduced, that she was entitled to maintenance. Dinesh’s pay-slip (Ex-3) revealed that he was working as a Junior Engineer in the Electricity Board and his net salary, after deductions from the gross salary of 62,000/-, was ₹ ₹43,211/-. The Family Court held that Dinesh, despite having sufficient means, had neglected to maintain his wife, who was unable make ends meet on her own. The petition was accordingly allowed and Dinesh was directed to pay 10,000/- per month to Reena towards maintenance. Such ₹ maintenance was held payable from the date of the application, i.e., 03.08.2019, and the arrears were directed to be paid within two months.
Hon’ble High Court brought section 125(4) Cr.P.C in Dinesh aid and refused maintenance
7. Challenging this order, Dinesh filed Criminal Revision No. 440 of 2022 before the Jharkhand High Court. A learned Judge allowed the revision by the impugned judgment dated 04.08.2023. Therein, the learned Judge noted that Reena, who deposed as PW-1, was not even cross-examined by Dinesh. Similarly, the other two witnesses who appeared on her behalf were also not subjected to cross-examination. In her deposition, Reena asserted that she was not working and this was confirmed by her brother, Dilip Kumar Mahato (PW-3), who stated that she was completely dependent upon him. Dinesh, in his own cross-examination, denied that it was due to his assault that his wife suffered a miscarriage. He also denied that he had demanded 5 lakh in dowry. ₹ He, however, admitted that Reena suffered an abortion and that he did not bear any expense in that regard. It was submitted on behalf of Dinesh, that he was ready to pay 5,000/- per month to Reena, but not ₹ 5 from the date of filing of the maintenance petition, as he was suspended from service during that period owing to his being in judicial custody in relation to the Section 498A IPC case instituted by her. The learned Judge, however, noted that there was a specific finding in the judgment dated 23.04.2022 in Original (MTS) Suit No. 495 of 2018 that Reena had withdrawn from her husband’s society without reasonable excuse and that she had not returned to the matrimonial home despite the said decree for restitution of conjugal rights, which she had not even chosen to challenge by way of appeal. The learned Judge, therefore, reasoned that Section 125(4) Cr.P.C. would come to Dinesh’s aid and, in consequence, Reena would not be entitled to maintenance. Hence, the learned Judge allowed the revision.
Analysis
Chapter IX Cr.P.C [Chapter X BNSS] and its origin
8. Before proceeding to consider the matter on merits, it would be apposite to take note of the statutory scheme. Chapter IX of the Code of Criminal Procedure, 1973, is titled ‘Order for Maintenance of Wives, Children and Parents’ and comprises Sections 125 to 128. Section 125(1) Cr.P.C. provides to the effect that, if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate children, falling in the prescribed categories, or his parents, who are all unable to maintain themselves, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to pay a monthly allowance, as thought fit, for their maintenance. Notably, Section 125 Cr.P.C. is not of recent origin. It is analogous to and in continuance of Section 488 of the erstwhile Code of Criminal Procedure, 1898.
41st report of Law commission
9. In its 41st Report submitted on 24th September, 1969, the Law Commission of India, while adverting to Section 488 of the Code of Criminal Procedure, 1898, observed that the primary justification for placing provisions relating to maintenance of wives and children, which is a civil matter, in the Criminal Procedure Code was that a remedy, speedier and more economical than that available in the Civil Courts, is provided to them. The Law Commission noted that the provision was aimed at preventing starvation and vagrancy, leading to commission of crime.
Judgments analysis on section 125 Cr.P.C
Object of section 125 Cr.P.C is within constitutional sweep of Article 15(3)
10. On the same lines, in Chaturbhuj vs. Sita Bai [(2008) 2 SCC 316] this Court observed that the object of maintenance proceedings is not to punish a person for his neglect but to prevent the vagrancy and destitution of a deserted wife, by providing her food, clothing and shelter by a speedy remedy. It was held that Section 125 Cr.P.C. is a measure of social justice, especially enacted to protect women and children, falling within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution. Thus, the objective of the provision, then and now, is to alleviate the financial plight of destitute wives, children and now, parents, who are left to fend for themselves.
Wife can be deprived of maintenance only from legally permissible grounds
11. In Bhuwan Mohan Singh vs. Meena and others [(2015) 6 SCC 353] this Court observed that Section 125 Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman, who left her matrimonial home for the reasons provided in the provision, so that some suitable arrangement can be made by the Court and she can sustain herself and also her children, if they are with her. It was held that the concept of sustenance did not necessarily mean ‘to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else’ and the wife would be entitled in law to lead a life in a similar manner as she would have lived in the house of her husband. This Court further cautioned that, in a proceeding of this nature, the husband cannot be permitted to take subterfuge to deprive the wife of the benefits of living with dignity and there could be no escape route, unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on legally permissible grounds.
Section 125 Cr.P.C was enacted as a measure of social justice
12. Earlier, in Badshah vs. Urmila Badshah Godse and another [(2014) 1 SCC 188] this Court held that the provision of maintenance aims at empowering the destitute and achieving social justice or equality and dignity of the individual and while dealing with cases thereunder, the drift in the approach from adversarial litigation to social context adjudication is the need of the hour. More recently, in Rajnesh vs. Neha and another [(2021) 2 SCC 324] this Court emphasized that maintenance laws were enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.
Section 125 Cr.P.C aims to improve the financial situation and address the mental agony a woman faces when forced to leave her matrimonial home
13. In Shamima Farooqui vs. Shahid Khan [(2015) 5 SCC 705] this Court noted that the inherent and fundamental principle behind Section 125 Cr.P.C. is the amelioration of the financial state of affairs as well as the mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. It was further observed that, as per law, she is entitled to lead life in a similar manner as she would have lived in the house of her husband and as long as she is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity. Lastly, it was noted that, a plea is sometimes advanced by the husband that he does not have the means to pay as he does not have a job or his business is not doing well, but these are only bald excuses and, in fact, they have no acceptability in law as a husband, who is healthy, able-bodied and in a position to support himself is under a legal obligation to support his wife and her right to receive maintenance under Section 125 Cr.P.C., unless disqualified, is an absolute right.
Section 125 (4) Cr.P.C [section 144 (4) BNSS]
14. Such disqualification, by way of an exception, was envisaged under Section 488(4) of the old Code, which is replicated, almost verbatim, in Section 125(4) Cr.P.C. It reads thus:
“Section 125 (4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for “allowance” (w.e.f. 24-9-2001)] 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.”
15. The issue, presently, turns upon the applicability of Section 125(4) Cr.P.C. to the case on hand. The question as to whether noncompliance with a decree for restitution of conjugal rights by a wife would be sufficient in itself to deny her maintenance, owing to Section 125(4) Cr.P.C, has been addressed by several High Courts but no consistent view is forthcoming, as their opinions were varied and conflicting.
Hon’ble Supreme court now quoting several High Court judgments in paragraphs 16 to 26
The mere failure of a wife to live with her husband is not sufficient to disqualify her from receiving maintenance
27. Now, turning to the decisions of this Court on the point, in Kirtikant D. Vadodaria vs. State of Gujarat and another [(1996) 4 SCC 479], it was held that Section 125 Cr.P.C. has to be given a liberal construction to fulfil and achieve the intention of the legislature and, therefore, the passing of a decree for restitution of conjugal rights against the wife would not, by itself, defeat her right to maintenance under Section 125(1) Cr.P.C. It was further observed that the mere ‘failure’ of the wife to live with her husband would not be sufficient to disentitle her from receiving maintenance from him, especially as the crucial word carefully chosen in the relevant provision is ‘refusal’.
Wife has reasonable grounds not to join her husband hence entitled for maintenance
28. In Amrita Singh vs. Ratan Singh and another [(2018) 17 SCC 737], this Court held, on facts, that the plea of the husband that his wife had deserted him without reasonable cause and that he was ready to take her back was falsified by the fact that the wife was treated with cruelty and subjected to persistent demands for dowry, resulting in her being ousted from the matrimonial house, whereupon she was compelled to file a criminal complaint under Section 498A IPC ending in the conviction of the husband and his father. The wife was held to have reasonable grounds not to join the husband, thereby entitling her to maintenance.
Decree of restitution of conjugal rights secured by husband straightaway does not disqualify maintenance under section125(4) Cr.P.C
29. Thus, the preponderance of judicial thought weighs in favour of upholding the wife’s right to maintenance under Section 125 Cr.P.C and the mere passing of a decree for restitution of conjugal rights at the husband’s behest and non-compliance therewith by the wife would not, by itself, be sufficient to attract the disqualification under Section 125(4) Cr.P.C. It would depend on the facts of the individual case and it would have to be decided, on the strength of the material and evidence available, whether the wife still had valid and sufficient reason to refuse to live with her husband, despite such a decree. There can be no hard and fast rule in this regard and it must invariably depend on the distinctive facts and circumstances obtaining in each particular case. In any event, a decree for restitution of conjugal rights secured by a husband coupled with non-compliance therewith by the wife would not be determinative straightaway either of her right to maintenance or the applicability of the disqualification under Section 125(4) Cr.P.C.
30. Another contention that was urged before us is that the findings in the judgment for restitution of conjugal rights by the Family Court, being a Civil Court, would be binding on the Court seized of the petition under Section 125 Cr.P.C, as they are to be treated as criminal proceedings. This specious argument needs mention only to be rejected outright. No doubt, in Shanti Kumar Panda vs. Shakuntala Devi [(2004) 1 SCC 438], this Court held that a decision by a Criminal Court would not bind the Civil Court while a decision by the Civil Court would bind the Criminal Court. However, maintenance proceedings are essentially civil in nature and the reason for inclusion of the provisions dealing therewith in the Code of Criminal Procedure was clarified by the Law Commission of India in September, 1969. Significantly, as long back as in the year 1963, in Mst. Jagir Kaur and another vs. Jaswant Singh [AIR 1963 SC 1521], a 3-Judge Bench of this Court held that proceedings under Section 488 of the Code of Criminal Procedure, 1898, the precursor to Section 125 Cr.P.C., are in the nature of civil proceedings; the remedy, being a summary one; and the person seeking that remedy, ordinarily being a helpless person. Therefore, even if non-compliance with an order for payment of maintenance entails penal consequences, as may other decrees of a Civil Court, such proceedings would not qualify as or become criminal proceedings. Nomenclature of maintenance proceedings initiated under the Code of Criminal Procedure, as those provisions find place therein, cannot be held to be conclusive as to the nature of such proceedings.
Civil proceeding nor Criminal proceeding is final or binding on other
31. Further, in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another [(2005) 4 SCC 370], while dealing with the contention that an effort should be made to avoid conflict of findings between Civil and Criminal Courts, a Constitution Bench pointed out that there is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.
32. The Indian Evidence Act, 1872, distinguishes between judgments in rem and judgments in personam and Sections 40 to 43 therein stipulates the relevance of existing judgments, orders or decrees in subsequent proceedings in different situations. The relevant provisions are extracted hereunder for ready reference:
“40. Previous judgments relevant to bar a second suit or trial
41. Relevancy of certain judgments in probate, etc., jurisdiction
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant”
33. Sections 34 to 37 of the Bharata Sakshya Adhiniyam, 2023, correspond to Sections 40 to 43 of the Indian Evidence Act, 1872, with some modifications. Section 41, as is clear from the extraction hereinabove, specifically deals with instances where an earlier judgment, order or decree constitutes conclusive proof whereas Section 42 provides that an earlier judgment is relevant if it relates to matters of public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of that which they state. These provisions were considered in detail by a 3-Judge Bench of this Court in K.G. Premshankar vs. Inspector of Police and another [(2002) 8 SCC 87], in the context of when a judgment in a civil proceeding, on the same cause of action, would be relevant in a criminal case, and it was observed thus:
“30. What emerges from the aforesaid discussion is – (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2)..; (3)..; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.
31. Further, the judgment, order or decree passed in previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. … Hence, in each and every case, the first question which would require consideration is – whether judgment, order or decree is relevant, if relevant – its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case.”
Civil court proceedings and section 125 Cr.P.C are altogether different
Decisions of this Court manifest that judgments passed on merits in civil proceedings have been accepted as sufficient cause to discharge or acquit a person facing prosecution on the same grounds. This dictum is applied especially in cases where civil adjudication proceedings, like in tax cases, lead to initiation of prosecution by the authorities. Such cases are, however, different as there is a direct connect between the civil proceedings and the prosecution which is launched. The facts and allegations leading to the prosecution directly arise as a result of the civil proceedings. Moreover, the standard of proof in civil proceedings is a preponderance of probabilities whereas, in criminal prosecution, conviction requires proof beyond reasonable doubt. We do not think the said principle can be applied per se to proceedings for maintenance under Section 125 Cr.P.C. by relying upon a judgment passed by a Civil Court on an application for restitution of conjugal rights. Further, the two proceedings are altogether independent and are not directly or even indirectly connected, in the sense that proceedings under Section 125 Cr.P.C. do not arise from proceedings for restitution of conjugal rights.
34. Long ago, in Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal and others [(1978) 4 SCC 70], this Court noted that it is valid to assert that a final determination of a civil right by a Civil Court would prevail against a like decision by a Criminal Court but held that this principle would be inapplicable when it comes to maintenance granted under Section 24 of the Hindu Marriage Act, 1955, as opposed to maintenance granted under Section 125 Cr.P.C. It was noted that the latter provision was a measure of social justice specially enacted to protect women and children falling within the constitutional sweep of Article 15(3) reinforced by Article 39.
36. Pertinently, in Parveen Mehta vs. Inderjit Mehta [(2002) 5 SCC 706], this Court held that mental cruelty is a state of mind and feeling of one of the spouses due to the behavioral pattern by the other and, unlike physical cruelty, mental cruelty is difficult to establish by direct evidence. It was observed that a feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on cumulatively assessing the attending facts and circumstances in which the two spouses have been living. In a case of mental cruelty, per this Court, it would not be the correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the spouse has been subjected to mental cruelty due to the conduct of the other.
Dinesh neither sought execution of the decree nor sought a decree of divorce
37. Applying this standard, Dinesh’s conduct in completely ignoring his wife, Reena, after she suffered the miscarriage of their child would have been the proverbial last straw adding to her suffering due to the ill-treatment in her matrimonial home. She, therefore, had just cause to not return to her matrimonial home, despite the restitution decree. Further, the events thereafter or rather, the lack thereof, is relevant. The restitution decree came to be passed on 23.04.2022. Admittedly, there was no attempt made at reconciliation after 2017. However, having secured the said restitution decree, Dinesh did nothing! He neither sought execution of the decree under Order XXI Rule 32 CPC nor did he seek a decree of divorce under Section 13(1A)(ii) of the Hindu Marriage Act, 1955.
Since the wife has sufficient reason to stay away from the society of her husband the High Corut erred in applying section 125(4) Cr.P.C by holding the wife is not entitled to maintenance
38. The reason for this is not far to gather. In Rohtash Singh vs. Ramendri (Smt.) and others [(2000) 3 SCC 180], this Court clarified that a wife, who suffered a decree of divorce on the ground of deserting her husband, would not be entitled to maintenance under Section 125 Cr.P.C. as long as the marriage subsisted, but she would be entitled to such maintenance once she attained the status of a divorced wife, in the light of the definition of a ‘wife’ in Explanation (b) to Section 125(1) Cr.P.C. Dinesh, therefore, sought to protect himself from a claim by Reena for maintenance by projecting the disobeyed restitution decree as a defence and as long as she did not attain the status of a divorced wife, that protection would endure to his benefit. This stalemate of sorts created by Dinesh clearly reflects his lack of bonafides and demonstrates his attempt to disown all responsibility towards his wife, Reena. These factors, taken cumulatively, clearly manifest that Reena had more than sufficient reason to stay away from the society of her husband, Dinesh, and her refusal to live with him, notwithstanding the passing of a decree for restitution of conjugal rights, therefore, cannot be held against her. In consequence, the disqualification under Section 125(4) Cr.P.C. was not attracted and the High Court erred grievously in applying the same and holding that Reena was not entitled to the maintenance granted to her by the Family Court.
Conclusion
Appeal allowed and directed the husband to pay maintenance
39. The appeal is accordingly allowed, setting aside the judgment dated 04.08.2023 passed by the High Court of Jharkhand at Ranchi in Criminal Revision No. 440 of 2022. In consequence, the order dated 15.02.2022 passed by the learned Principal Judge, Family Court, Dhanbad, in Original Maintenance Case No. 454 of 2019 shall stand restored. In furtherance thereof, Dinesh, respondent No. 1 herein, shall pay maintenance @ 10,000/- per month to Reena, the appellant, on or before the 10th day of each calendar month. Such maintenance would be payable from the date of filing of the maintenance application, i.e., 03.08.2019. Arrears of the maintenance shall be paid by Dinesh in three equal installments, i.e., the first instalment by 30.04.2025, the second instalment by 31.08.2025 and the third and final instalment by 31.12.2025.
Parties
Rina Kumari @ Rina Devi vs. Dinesh Kumar Mahto @ Dinesh Kumar Mahato and anr – Criminal Appeal No. 161 of 2025) S.L.P(Crl.) No. 5896 of 2024 – January 10, 2025
