MANOJ VANAJA Vs. GOPU

JUDGEMENT

(1.) THIS civil revision petition, at the instance of the wife, is directed against the order of the Court below dismissing the application filed by her in I.A.No.80 of 1987 in H.M.O.P.No.l71 of 1986, under Sec.24 of the Hindu Marriage Act, 1955, praying that the respondent should be directed to pay the petitioner maintenance in a sum of Rs.200 every month and Rs.750 to meet the expenses of that proceeding.

(2.) BRIEFLY stated, the facts giving rise to the civil revision petition, are as follows: On 17.9.1977, the respondent herein married the petitioner at Salem and the petitioner gave birth to a daughter. The petitioner and the respondent lived together as wife and husband till 228.1984. Misunderstandings appear to have arisen between the parties, which ultimately led to the petitioner being obliged to leave for her parents" house. On 15.7.1985, the petitioner issued a notice to the respondent, setting out the circumstances, under which she was obliged to leave the house of the respondent and demanding payment of maintenance by the respondent and other expenses, to which, on 23.7.1985, the respondent replied, requiring the petitioner to come and live with him. To this, on 29.7.1985, the petitioner sent a rejoinder and subsequently, the petitioner filed M.C.No.9 of 1985 on the file of the Chief Judicial Magistrate, Salem, under Sec.125, Code of Criminal Procedure, praying for the award of maintenance to her. In that application, the petitioner stated that the respondent was addicted to drinks and had also developed illicit intimacy with another woman and that she was beaten and driven out of the house by the respondent, justifying her living separately from the respondent and claiming maintenance. That application was resisted by the respondent disputing the grounds alleged by the petitioner. However, on 31.3.1986, in M.C.No.9of 1985, the Chief Judicial Magistrate found that the petitioner had established the grounds set out by her in that petition and also found that the petitioner was obliged to leave the respondent for a just cause and that the respondent should pay the petitioner maintenance at the rate of Rs.250 per mensem from 31.3.1986 onwards, having regard to the income of the respondent. In Crl.R.C.No.300 of 1986, the respondent questioned the correctness of that order, but by order dated 30.1.1990, this Court confirmed the order of the Chief Judicial Magistrate, Salem, in M.C.No.9 of 1985 and dismissed Crl.R.C.No.300 of 1986. It is not now in dispute and it is also indeed the finding of the court below in the present proceedings, that the respondent had not paid the maintenance amount to the petitioner, as ordered in M.C.No.9 of 1985 and confirmed by this Court in Crl.R.C.No.300 of 1986. While matters stood thus, the respondent, some time in November, 1986, instituted H.M.O.P.No.171 of 1986, Sub Court, Salem under Sec. 13(1)(i-b) of the Hindu Marriage Act, praying for the passing of a decree for divorce annulling the marriage between the respondent and the petitioner on the ground that the petitioner had voluntarily and wilfully withdrawn from the company of the respondent, withoutany valid or reasonable cause, fora period of two years from 23.8.1984. That proceeding is being contested by the petitioner on ground, which need not be noticed for purpose of the present civil revision petition. In I.A.No.80 of 1987 in H.M.O.P.No.171 of 1986, filed under Sec.24 of the Hindu Marriage Act, the petitioner prayed for a direction to the respondent to pay her Rs.200 every month towards maintenance and Rs.750 to meet the expenses of the litigation launched by the respondent. Amongst others, an objection was raised by the respondent that having regard to the prior proceeding under Sec.125, Cr.P.G in M.GNo.9 of 1985, on the file of the Chief Judicial Magistrate, Salem, confirmed by this Court in Crl.R.C.No.300 of 1986, the petitioner was not entitled to make a claim against the respondent for maintenance and that the petition deserved dismissal, as the petitioner was not entitled to any relief. The teamed Subordinate Judge, Salem found that the respondent had not paid to the petitioner the maintenance amount awarded in M.C.No.9 of 1985, as confirmed by mis Court in Crl.R.C.No300 of 1986, but that, in view of the decision in Mamta Rani v. Raj Kumar, (1985)1 M.C. 141, the peti tioner can not seek payment of maintenance from the respondent for a second time in view of the prior proceedings under Sec.125, Cr.P.C. However, the court directed the respondent to pay the petitioner Rs.300 towards litigation expenses. It is the correctness of this order insofar as it is against the petitioner that is challenged in this civil revision petition.

(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 Sec.l8(1) of the Hindu Adoptions and 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 her husband during her lifetime, Sec 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 Sec.l8(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 Sec.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 r f such right. These however may at best be characterised 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 Sec.24 of the 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 Sec.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, to 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 Sec.24 of the 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 Sec.24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions of Sec.24 of the Hindu Marriage Act. The purpose behind Sec.24 of the 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 Sec.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 Sec.24 of that Act and its purpose, are 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 Sec. 125, Cr.P.C. or under the ordinary law. Further more, in this case, the finding recorded by the court below is to the effect that the respondent had not paid to the petitioner even the amounts of maintenance awarded in the proceedings under Sec. 125, Cr.P.C, and there can, therefore, be absolutely no justification whatever for declining to countenance the claim of the petitioner for maintenance on the ground of the prior proceedings under Sec.125, Cr.P.C. It may also be pointed out that in proceedings under Sec.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 Sec.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 or recovered by a person, pursuant to an order under Sec.125, Cr.P.C. The aforesaid provisions do not in any manner impinge upon the specifical statutory right conferred under Sec.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 Sec. 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 Sec.24 of the Hindu Marriage Act.