2025 INSC 55
SUPREME COURT OF INDIA
(HON’BLE
SANJIV KHANNA, CJI. AND HON’BLE SANJAY KUMAR, JJ.)
RINA KUMARI @ RINA
DEVI @ REENA
Petitioner
VERSUS
DINESH KUMAR MAHTO @
DINESH KUMAR MAHATO
Respondent
Criminal
Appeal No. 161 of 2025 (@ Special Leave
Petition (Crl.) No. 5896 of 2024)-Decided on 10-01-2025
Family
Criminal Procedure
Code, 1973, Section 125(4) – Evidence Act, 1872, Section 40 to 43 - Bharatiya
Sakshya Adhiniyam, 2023, Sections 40 to 43 – Maintenance -
Refusal by wife to abide by decree of restitution of conjugal rights – Maintenance – Claim
by wife - 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, 1973, if his wife refuses to abide by
the said decree and return to the matrimonial home? - Findings in the
proceedings for restitution of conjugal rights, which were partly uncontested
as Petitioner did not appear before the Family Court to adduce evidence or
advance her case after filing her written statement, did not clinch the issue
and the High Court ought not to have given such undue weightage to the
said judgment and the findings therein - The fact that the witnesses who
appeared on behalf of petitioner in the Section 125 Cr.P.C.
proceedings were not even cross-examined - It was clear therefrom that
respondent-husband did not even contest or rebut what they had stated - The
fact that petitioner was fully dependent on her brother was thus admitted -
Further, documents were placed on record in proof of Reena’s abortion in
January, 2015 - In that regard, respondent admission that he did not bear the
expenditure for her treatment and her unrebutted assertion that he did not take
her to the hospital or even come from Ranchi to see her were clear indicia of
the pain and mental cruelty meted out to her - The fact that she was
not allowed to use the toilet in the house or avail proper facilities to
cook food in the matrimonial home, facts which were accepted in the restitution
proceedings, are further indications of her ill-treatment –She, therefore, had
just cause to not return to her matrimonial home, despite the restitution
decree - 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 21 Rule 32 CPC nor did he seek a
decree of divorce under Section 13(1A)(ii) of the Hindu Marriage Act,
1955 - These factors, taken cumulatively, clearly manifest that petitioner had
more than sufficient reason to stay away from the society of her husband, 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 - Judgment passed by the High Court liable to be set aside - In
consequence, the order by the learned Principal Judge, Family Court in Original
Maintenance Case shall stand restored - Respondent No. 1 herein, shall pay
maintenance @ ₹10,000/- per month
to 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
respondent no. 1 in three equal installments, i.e., the first installment by
30.04.2025, the second installment by 31.08.2025 and the third and final
installment by 31.12.2025.
(Para
35, 37 to 39)
JUDGMENT
Sanjay Kumar, J. :- Leave granted.
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?
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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 non- compliance 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.
16. In K.
Narayana Rao vs. Bhagyalakshmi [1983
SCC OnLine Kar 190 = (1984) 1 Kant LJ 451 = 1984 Cri LJ 276 (Kant)], the
Karnataka High Court observed that the Court dealing with a maintenance claim
under Section 125 Cr.P.C. has to carefully examine and take into
consideration the decree for restitution of conjugal rights which has not been
complied with by the wife but it would not be bound by all the findings therein,
including findings on questions, such as, whether the wife withdrew from the
society of the husband; desertion on her part; or her leading
an adulterous life. Reference was made to Fakruddin Shamsuddin
Saiyed vs. Bai Jenab[AIR 1944 Bom
11] , wherein the Bombay High Court had held that the Magistrate
should not ‘surrender his own discretion’ simply because the husband was armed
with a decree for restitution of conjugal rights.
17. In Sampuran
Singh vs. Gurdev Kaur and another [Criminal
Revision No. 1562 of 1983, decided on 17.01.1985 = 1985 Cri LJ 1072
(P&H)] , the Punjab & Haryana High Court observed that a wife
can still claim maintenance in the presence of a decree for restitution of
conjugal rights if the conduct of the husband is such that it obstructs her
from obeying the decree.
18. In Amina
Mohammedali Khoja vs. Mohammedali Ramjanali Khoja and another[1985 SCC OnLine Bom 99 = 1985 Cri LJ 1909],
the Bombay High Court noted that an order of maintenance can always be passed
in favour of a wife even if her husband obtained a decree for restitution of
conjugal rights, unless it is established that she willfully deserted her
husband and was not willing to stay with him without reasonable cause or
sufficient reason. On facts, it was found that the record did not show that the
wife had deserted the husband and was unwilling to stay with him without
reasonable cause or sufficient reasons. It was further noted that, after
obtaining the decree, the husband had not taken any effective steps to get the
decree satisfied as he had made no genuine, honest and sincere efforts to see
that his wife comes back to him. It was, therefore, held that he was only
interested in a paper decree for restitution of conjugal rights, which he had
gotten ex parte.
19. In Kavungal
Kooppakkattu Zeenath vs. Mundakkattu SulfikerAli[2008 SCC OnLine Ker 78 = (2008) 3 KLJ 331] , the Kerala High
Court noted that the expression used in Section 125(4) Cr.P.C. is
‘refusal’ and not ‘failure’ to live with the husband and that there is
evidently some difference between the two. It was held that ‘failure’ would
mean not doing something that one is expected to do but ‘refusal’ would mean
saying or showing that one would not do or accept something which is offered.
In effect, if a husband says he is willing to do something for the wife but she
states or shows that she does not want or accept that something which is
offered to her, then only there is refusal.
20. In Subal
Das vs. Mousumi Saha (Das) and another [2017
SCC OnLine Tri 175 = Criminal Revision Petition No. 89 of 2016, decided on
25.07.2017], the Tripura High Court held that a wife who refuses to comply
with a decree for restitution of conjugal rights cannot be deprived of
maintenance under Section 125(4) Cr.P.C. It was observed that it
would be incongruent to assume that a wife against whom a decree for
restitution has been passed is disentitled to maintenance while a wife who has
been divorced can still claim the same. It was further observed that the Civil
Court’s judgment for restitution can only be treated as
relevant evidentiary material but the conduct of the wife, i.e., whether
she had sufficient reason to refuse to live with the husband, has to be
assessed by the Magistrate and only thereafter, it could be decided whether she
would be entitled to maintenance or not. It was concluded that the restriction
imposed by Section 125(4) Cr.P.C. had been substantially diluted, if
not virtually negated.
21. In Babita
vs. Munna Lal[2022 SCC OnLine Del 4933 =
Criminal Revision Petition No. 1001 of 2018, decided on 22.08.2022], the
Delhi High Court opined that an ex parte decree for restitution of conjugal
rights would not automatically put an end to the wife’s right to maintenance
under Section 125 Cr.P.C. It was held that, even if such a case is contested
by the wife and is decided in the husband’s favour, non-compliance therewith
could be taken to be a ground to deny maintenance, provided the Court is
satisfied on the strength of evidence that the wife had no justifiable grounds
to stay away from the husband. The mere presence of a decree for restitution of
conjugal rights was, therefore, held insufficient to disentitle a wife from
claiming maintenance, if the conduct of the husband is such that she is unable
to obey such a decree or if the husband creates such circumstances that she
cannot stay with him. It was noted that even a divorced wife is entitled to
maintenance under Section 125 Cr.P.C. and it would be improper and
unfair to deny maintenance to a wife merely because she refused to cohabit
with the husband, despite having sufficient grounds therefor.
22. In Shri
Mudassir vs. Shirin and others [Criminal
Revision Application No. 268 of 2022, decided on 09.02.2023], the Bombay
High Court noted that mere readiness and willingness on the part of the husband
to cohabit with the wife would not be sufficient to absolve him of the
liability to pay maintenance, by projecting that the wife left his company
without sufficient reason. It was held that if the grounds justified the wife
and children staying away from the husband, Section 125(4) Cr.P.C.
would have no application.
23. In
its recent judgment in Smt. S.R. Ashwini vs. G. Harish [NC: 2024: KHC: 14466 = RPFC No.104 of 2018, decided on
23.02.2024], the Karnataka High Court held that there is nothing in law to
bar the grant of maintenance under Section 125 Cr.P.C. even if a
decree for restitution of conjugal rights is secured by the husband. It was
noted that, at the most, such a decree would enable the husband to take that
defence in the maintenance proceedings initiated by the wife but, for the
Court, it would not be the sole factor to refuse maintenance to her. In the
result, it was held that a petition under Section 125 Cr.P.C. could
be considered on its own merits independently, without being influenced by the
decree for restitution of conjugal rights. It was further held that, even if
there is a decree for restitution of conjugal rights, and the wife still does
not choose to join the matrimonial home that would not amount to
voluntary refusal/desertion which would bar her claim to maintenance
under Section 125 Cr.P.C.
24.
On the other hand, the Gujarat High Court, in Girishbhai Babubhai Raja vs.
Smt. Hansaben Girishchandra and another [1985 SCC OnLine Guj 161 = (1986) GLH 778] , observed that
when the Civil Court orders the wife to go and stay with her husband and fulfil
her marital obligations, it presupposes that she has no justification to be
away from the husband and refuse to perform her corresponding marital
obligations.
25.
A similar view was taken by the Himachal Pradesh High Court in Hem Raj vs.
Urmila Devi and others [1996 SCC
OnLine HP 116 = (1997) 1 HLR 702] , wherein it was held that, once a
Civil Court found in a contested proceeding that the wife had no just or
reasonable cause to withdraw her society from the husband, she cannot claim
maintenance under Section 125 Cr.P.C. It was observed, on facts, that
the wife had not pleaded any subsequent event or circumstance which justified
her staying away from her husband in spite of the decree for restitution of
conjugal rights passed against her.
26.
On the same lines, in Ravi Kumar vs. Santosh Kumari[1997 SCC OnLine P&H 529 = (1997) 3 RCR (Cri) 3 (DB)] , a
Division Bench of the Punjab & Haryana High Court held that a wife against
whom a decree for restitution of conjugal rights has been passed by the Civil
Court would not be entitled to claim maintenance under Section
125 Cr.P.C. if, in the proceedings of restitution, a specific issue was
framed as to whether the wife refused to live with her husband without
sufficient reason and the parties were given an opportunity to lead evidence,
whereupon specific findings were recorded by the Civil Court against the wife
on the issue. It was, however, added that in the event the husband got an ex parte
decree for restitution, such a decree would not be binding on the Criminal
Court exercising jurisdiction under Section 125 Cr.P.C. It was also
clarified that if the decree for restitution of conjugal rights was obtained by
the husband subsequent to the order for maintenance passed by the Magistrate
under Section 125 Cr.P.C., then the decree would not ipso facto
disentitle the wife to her right to maintenance and the husband would have to
approach the Magistrate to get the order granting maintenance cancelled.
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’.
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.
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.
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: -
The existence of any
judgment, order or decree which by law prevents any Court from taking
cognizance of a suit or holding a trial is a relevant fact when the question is
whether such Court ought to take cognizance of a such suit, or to hold such
trial.
41. Relevancy of certain judgments in probate, etc.,
jurisdiction: -
A final judgment,
order or decree of a competent Court, in the exercise of probate, matrimonial
admiralty or insolvency 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, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any such
legal character, or the title of any such person to any such thing, is
relevant.
Such judgment, order
or decree is conclusive proof— that any legal character, which it confers
accrued at the time when such judgment, order or decree came into operation;
that any legal
character, to which it declares any such person to be entitled, accrued to that
person at the time when such judgment, [order or decree] declares it to have
accrued to that person;
that any legal
character which it takes away from any such person ceased at the time from
which such judgment, [order or decree] declared that it had ceased or should
cease;
and that anything to
which it declares any person to be so entitled was the property of that person
at the time from which such judgment, [order or decree] declares that it had
been or should be his property.
42. Relevancy and
effect of judgments, orders or decrees, other than those mentioned in section
41: -
Judgments, orders or
decrees other than those mentioned in section 41, are relevant if they relate
to matters of a public nature relevant to the enquiry; but such judgments,
orders or decrees are not conclusive proof of that which they state.
Illustration:
A sues B for trespass
on his land. B alleges the existence of a public right of way over the land,
which A denies.
The existence of a
decree in favour of the defendant, in a suit by A against C for a trespass on
the same land in which C alleged the existence of the same right of way, is
relevant, but it is not conclusive proof that the right of way exists.
43. Judgments, etc., other than those mentioned in
sections 40 to 42, when relevant. -
Judgments, orders or
decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant,
unless the existence of such judgment, order or decree, is a fact in issue, or
is relevant under some other provisions of this Act.
Illustrations
(a) A and B separately
sue C for a libel which reflects upon each of them. C in each case says, that
the matter alleged to be libellous is true, and the circumstances are such that
it is probably true in each case, or in neither.
A obtains a decree
against C for damages on the ground that C failed to make out his
justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for
adultery with C, A's wife.
B denies that C is A's
wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for
bigamy in marrying B during A's lifetime. C says that she never was A's wife.
The judgment against B
is irrelevant as against C.
(c) A prosecutes B for
stealing a cow from him, B, is convicted. A afterwards sues C for the cow,
which B had sold to him before his conviction. As between A and C, the judgment
against B is irrelevant.
(d) A had obtained a
decree for the possession of land against B, C, B's son, murders A in
consequence.
The existence of the
judgment is relevant, as showing motive for a crime.
[(e) A is charged with
theft and with having been previously convicted of theft. The previous
conviction is relevant as a fact in issue.
(f) A is tried for the
murder of B. The fact that B prosecuted A for libel and that A was convicted
and sentenced is relevant under section 8 as showing the motive for
the fact in issue.
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.”
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.
35.
Viewed thus, the findings in the proceedings for restitution of conjugal
rights, which were partly uncontested as Reena did not appear before the Family
Court to adduce evidence or advance her case after filing her written
statement, did not clinch the issue and the High Court ought not to have given
such undue weightage to the said judgment and the findings therein.
In the process, certain crucial factors were overlooked. Particularly, the fact
that the witnesses who appeared on behalf of Reena in the Section
125 Cr.P.C. proceedings were not even cross-examined. It was clear
therefrom that Dinesh did not even contest or rebut what they had stated. The
fact that Reena was fully dependent on her brother was thus admitted. Further,
documents were placed on record in proof of Reena’s abortion in January, 2015.
In that regard, Dinesh’s admission that he did not bear the expenditure for her
treatment and her unrebutted assertion that he did not take her to the hospital
or even come from Ranchi to see her were clear indicia of the pain and mental cruelty
meted out to her. The fact that she was not allowed to use the toilet in
the house or avail proper facilities to cook food in the matrimonial home,
facts which were accepted in the restitution proceedings, are further
indications of her ill-treatment.
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.
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.
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.
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.
In
the circumstances, parties shall bear their own costs.
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