SYED MUKHTAR AHMAD Vs. MOONIS FATMA AND A

JUDGEMENT

(1.) This revision arises out of proceedings under Section 125 Cr. P. C. and has been filed by the husband against the order dated July 31, 1979 of Special Judicial Magistrate, 1st Class, Agra. Smt. Moonis Fatma, opposite party No. 1 (hereinafter to be referred as wife) moved application under Section 125 Cr. P. C. on 12-5-75 claiming maintenance allowance for herself and her daughter Kumari Mutahara Rana. She came with the allegations that she was married to Syed Mukhtar Ahmad the present applicant (hereinafter to be referred as husband) on 12th June 1955 and prompt dower of Rs. 17,000/- was fixed. She performed her marital obligations faithfully. A daughter Mutehara Rana was born to her and she (daughter) was aged about 15 years and reading in IIth Standard in St. Patrick Convent at Agra. She alleged that the husband treated her with cruelty and turned her out and thereafter divorced her in November 1967. Thereafter the husband did not care to pay any maintenace allowance to her or her daughter. Her father was old. The husband was working as a Telephone Operator and getting a salary of Rs. 565. The husband contested the application. He admitted his liability to maintain the daughter till the age of puberty. He denied his liability to pay any maintenance allowance to the wife. He inter alia, contended that the behaviour of the wife towards Lim was very insulting from the very beginning and a divorce was in a way forced on him. The Magistrate observed that the wife had not pleaded in the petition that she was unable to maintain herself but she had made a statement to that effect at the time of the enquiry. The parties had led evidence on this aspect of the matter. The Magistrate held that the wife was unable to maintain herself and was, therefore, entitled to claim maintenance. He refused to go into the circumstances prior to the divorce and observed that after divorce the wife was entitled to claim maintenance allowance under the new Code of Criminal Procedure. He also held that the wife and the daughter had been neglected by the husband. The Magistrate, therefore, allowed maintenance allowance at the rate of Rs. 90/- per month to the wife and at the rate of Rs. 100/-per month to the daughter till she attained majority. Feeling dissatisfied by the above judgment of the Magistrate, the husband has filed this revision. The learned counsel for the husband applicant has stated that the applicant was not challenging his liability to pay maintenance allowance to his daughter till she attained the age of majority. The applicant was challenging the order of maintenance allowance passed in favour of the wife. This revision was admitted on one ground, though a number of grounds were taken up in the memorandum of revision. The learned counsel for the husband-applicant insisted to argue on some other points as well and I accorded him permission to address me on all such points. The first contention of the learned counsel for the husband applicant is that the wife had agreed to relinquish her right to maintenance allowance and therefore she was not entitled to claim maintenance allowance in view of the provisions of Section 127 (3) (c) of the Code. The husband had sent a letter to the wife on 29-11-1965 (Kha-3) making a conditional offer of divorce and fixing a limit for a reply. The wife did not care to answer. The husband sent two persons namely his brother Intazar and a friend Mahfooz Alam Khan to the house of the father of the wife to persuade the wife to come and live with the husband. At that time the father and the wife both declined the request and the wife said that she would not claim any maintenance allowance or Mehar. When these persons came back, notice dated 10-12-1965, Ex Kha-5 was sent by the husband to the wife, mentioning this fact in it. All this amounted to relinquishment of the wife's right to claim maintenance allowance from the husband. I have carefully considered the above submission of the learned counsel and, in my opinion, it has no merit. It is noteworthy that the alleged representation by the wife to Syed Intizar Ahmad and Mehfooz Alam Khan was not set out in the written statement Only this much was said that these persons went to persuade the wife but she and her father refusedand said that the wife would never live with the husband except at the house of the wife's father. Thereafter the husband divorced the wife in the year 1965. Since no plea about the alleged relinquishment was taken up by the husband in his written statement, the wife and her father did not say a word in connection with the alleged relinquishment: not a word was put to them on this point in cross-examination. No doubt Syed Intizar Ahmad said about this relinquishment in his statement. He is an interested witness. It is note worthy that Mehfooz Alam D. W. did not say a word about this relinquishment. In these circumstances solitary statement of Syed Intizar Ahmad about the alleged relinquishment cannot be accepted. Under the Muslim Personal Law a divorced wife is not entitled to any maintenance allowance after the expiry of the period of Iddat. For this reason too there could be no question of the wife saying that she was relinquishing her right to claim maintenance allowance. No reply to the aforesaid letters of the husband was given by the wife. Her silence would not amount to acceptance of the terms and conditions contained in those letters and it cannot legally be inferred that by her silence the wife was relinquishing her right to claim maintenance allowance from the husband. The Code of Criminal Procedure 1973 has conferred a right on a divorced wife to claim maintenance allowance from her ex-husband. In Bai Tahira v. Ali Hussain Fissalli Chothia and another (1979 Cr. L. L. J. 151 (S. C. ).) There was a settlement between the husband and the wife in the year 1962; that settlement was set up by the husband in defence of a claim of maintenance allowance under Section 125 Cr. P. C. The Supreme Court did not accept that settlement and observed thus:- " The last defence, based on mehar payment, merits more serious attention. The contractual limb of the contention must easily fail. The consent decree of 1962 resolved all disputes and settled all claims then available. But here is a new statutory right created as a projection of public policy by the Code of 1973, which could not have been in the contemplation of the parties when in 1962, they entered into a contract to adjust their then mutual rights. No settlement of claims which does not have the special statutory right of the divorce under Section 125 can operate to mitigate that claim. " In view of the above the first contention of the learned counsel for the husband is repelled as having no merit on fact or in law. The next contention of the learned counsel for the husband applicant is that there was no neglect on the part of the husband to maintain the wife, in this connection the learned counsel has laid great stress on the conduct of the wife prior to the date of the divorce. He has taken pains to show that the wife was at fault and was not willing to live with the husband: there was no mal-treatment or acts of cruelty on the part of the husband. Since the wife was not willing to live with the husband, therefore, the latter had no option left but to divorce her. The Magistrate did not discuss the conduct of the wife prior to divorce, in his judgment and this has been adversely criticised before me. In my opinion, the Magistrate was right in not dealing with that part of the life of the husband and the wife. Once, the husband divorces the wife or the wife obtains a divorce from her husband she becomes entitled to claim maintenance from her 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 end only if she remarries or lives in adultery or if she voluntarily surrenders her right to maintenance. In the instant case none of these eventualities has come to pass. The story of voluntary surrender has been found untenable. There is nothing in Chapter IX to warrant the inference that the ground of divorce or the previous conduct of either spouse are to be looked into and the wife is to be held entitled to a right to maintenance only if she was not guilty of any faulty conduct. Hence, a consideration of the previous conduct of the divorced wife is wholly irrelevant in a case under Section 125 Cr. P. C. The wife asserted that the husband had neglected to maintain her. The husband pleaded in his written statement that he was paying a certain a mount to the wife for her and her daughter's maintenance. He however did not produce any cogent and convincing evidence on this point. Hence, the wife's assertion on this point remained underbutted. The learned counsel for the husband-applicant too has not argued before me that in fact there was no neglect of the wife and the husband had been making regular payments to the wife for her maintenance. In view of the above it must be held that the husband had neglected to maintain the wife. It has not been argued on behalf of the husband applicant that the wife has means to maintain herself and she does not come within the category of Unable to maintain herself. The Magistrate discussed the means of the wife and recorded a finding that she had no means to maintain herself. It is a well discussed and well reasoned finding and no defect or illegality has been pointed out in it and, therefore, this finding must be accepted The learned counsel for the husband applicant has urged that the wife did not plead in her application for grant of maintenance that she was unable to maintain herself. In the absence of such a plea she could not give any evidence on the point of her inability to maintain herself. The evidence which was given before the Magistrate on this point should be ignored. In support of this contention, the learned counsel has placed reliance on the following decisions Siddik Mahomed Shah v. Mt. Saran and others (A. I. R. 1930 P. C 57 (1 ).), Messrs Trojan and Co. v. R. M. N. N. Nagappa Chettiar (A. I. R. 1953 S C. 235.), Bhagat Singh and others v. Jaswant Singh (A. I. R. 1966 S. C. 1861), Smt. Ramsurat Devi v. Smt. Satraji Kuer and others (A. I. R. 1975 Pat. 168), State of West Bengal v. Mir Fakir Mohammad (A. I. R. 1977 Cal. 29.), Firm Sriniwas Ram Kumar v. Mahabir Prasad and other s (A. I. R. 1951 S. C. 177.)and State of Bihar v. Motilal Chamaria and another. (A. I. R. 1964 Pat. 127.) The learned counsel for the wife has conceded that the fact that wife was unable to maintain herself was not pleaded in the application for grant of maintenance. But he has pointed out that the wife was allowed to adduce evidence on this point and the husband did not raise any objection at that stage the husband cross examined the wife and her evidence on this point. Not only this, the husband gave evidence in rebuttal to establish that the wife had means to maintain herself. In these circumstances, it was not open to the husband to raise the question of v ant of plea in the application. The learned counsel has further, urged that the strict rules of pleadings applicable in a civil matter are not applicable in a proceeding under Section 125 Cr. P. C. which is meant to give relief to wives and children who have no source of livelihood, I have carefully considered the submissions of the learned counsel for the parties The aforesaid seven decisions cited by the learned counsel for the husband relate to civil matters. No doubt in these cases, it was held that if a party had not pleaded a particular case it could not be allowed to lead evidence and further, evidence on such a non-pleaded point cannot be looked into. In my opinion, these strict rules of pleading and proof which are applicable to civil matters should not be extended to cases under Section 125 Cr. P. C. This section contains a beneficial socioeconomic provision for the assistance of un provided for and discarded wives and children and, therefore, this provision is to be construed liberally so far as the question of taking up a plea in the application is concerned. If no plea is taken up in the application and to evidence is led to prove that the wife is unable to maintain herself, her claim for maintenance may be negatived but where the parties have joined issue on this important point at the time of enquiry and have led evidence then the technical contention that the plea was not taken up in the application, should not be allowed to prevail. Clause (a) of sub-section (1) of Section 125 Cr. P. C. clearly says that a wife who is unable to maintain herself can claim maintenance allowance from her husband if some other conditions are also fulfilled. It does not specifically lay down that this plea must be raised by the wife in the application. A party is not to be taken by surprise and it is for this reason that it is necessary and desirable that the plea sought to be relied upon is set out in the application. However, in a case where the plea was not mentioned in the application but was raised at the time of enquiry and the parties joined issue on it and led evidence, it cannot be said that the other party (here the husband) was taken by surprise or was prejudiced in his defence. In the above circumstances I am unable to accept the contention of the husband and to reject the claim of maintenance of the wife on this ground. The order of the Magistrate has in the result this revision has no merit and must fail. The revision is dismissed. The stay order, if any, is hereby vacated. The record be sent back to the lower Court at a very early date. .