PRINCIPAL COMMISSIONER OF INCOME TAX 1,BHUBANESWAR vs. BOUDH CO OPERATIVE CENTRAL BANK LTD.,BOUDH

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR REV.PET FAMILY COURT NO. 104 OF 2018 C/W REV.PET FAMILY COURT NO. 134 OF 2017 REV.PET FAMILY COURT NO. 131 OF 2019

IN RPFC NO. 104/2018 BETWEEN: SMT. S.R. ASHWINI W/O. G HARISH, OCC: HOUSEHOLD, D/O. NETRA, R/O. CHOWDESHWARI COLONY, NEAR RAILWAY GATE,. ROAD LEADS TO HONNALI, SHIMOGA CITY - 577 201 …PETITIONER (BY SRI. PRASAD B S, ADVOCATE)

AND:

G. HARISH S/O. GUDDALLI GIDDAPPA, R/O. KAZIKOPPALU, S.S. ROAD, SHIKARIPURA TOWN - 577 427, SHIMOGA DISTRICT.

R Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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…RESPONDENT (RESPONDENT NOTICE H/S V/O DATED 03.06.2021)

THIS RPFC IS FILED UNDER SEC. 19[4] OF FAMILY COURT ACT AGAINST THE ORDER DATED 20.07.2017 PASSED IN C. MISC. NO. 128/2016 ON THE FILE OF THE PRL. FAMILY COURT, SHIVAMOGGA. DISMISSING THE PETITION FILED UNDER SEC. 125 OF CR. P. C. FOR MAINTENANCE.

IN RPFC NO. 134/2017

BETWEEN:

MANUKUMARA B. M S/O B. S. MAHADEVAPPA, AGED ABOUT 13 YEARS, (DIED ON 11-09-2014)

ALL ARE RESIDING AT: YADAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK MYSORE. …PETITIONERS (BY SRI. RUPESH KUMAR S, ADVOCATE)

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AND:

WORKING AS TEACHER AT GOVERNMENT HIGHER PRIMARY SCHOOL, CHINNANAYAKANAHALLI, NEAR KARIGATTA, SRIRANGAPATNA TALUK, MANDYA DISTRICT. …RESPONDENT (BY SRI. SATHYA. D. ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE)

THIS RPFC IS FILED UNDER SEC. 19(4) OF THE FAMILY COURT ACT., AGAINST THE JUDGMENT DATED 14.02.2017 PASSED IN C. MIS. NO. 558/ 2013 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT, MYSURU, PARTLY ALLOWING THE PETITION FILED UNDER SEC. 125 OF Cr. P. C., FOR MAINTENANCE.

IN RPFC NO. 131/2019

BETWEEN:

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BOTH RESIDING AT #973, 4TH CROSS, SATHAGALLI MYSORE - 570 019. …PETITIONERS (BY SRI. MOHAN B.K, ADVOCATE)

AND:

SRI. PANKAJ ANVEKAR S/O SURENDRA ANVEKAR AGED ABOUT 36 YEARS, R/AT #418, GANDHINAGAR NAIKWADI PLOT, UPLAI ROAD, NEAR GODOWN, BARSHI - 413 411 SOLAPUR DISTRICT MAHARASTRA – 413 411 …RESPONDENT (NOTICE SERVED)

THIS RPFC FILED UNDER SEC. 19(4) OF FAMILY COURT ACT AGAINST THE ORDER DATED 17.05.2019 PASSED IN C. MIS. NO. 133/2018 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT MYSURU, PARTLY ALLOWING THE PETITION FILED UNDER SEC. 125 OF CR. PC., FOR MAINTENANCE.

THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

All the three petitions are filed by the wife calling in question the judgment and award passed by the Family Courts in dismissing the petitions filed under Section 125 of Cr.P.C. filed by the respective petitioners – wife on the ground that in spite of decree of restitution of conjugal rights is passed against the wife but the wife did not join companionship of the respondent – husband. Therefore, the Family Courts have dismissed the petitions filed for maintenance. 2. Though the above said three petitions are ordered under different facts and circumstances but one common fact involved in these cases are that the petitioners were constrained to live separately from the respondents – husband on the ground that the respondents – husband have subjected the petitioners – wife to cruelty and ill-treatment. Therefore, the petitioners are living separately and thus, filed claim petitions praying for maintenance by invoking provisions of Section 125 of

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Cr.P.C. by filing respective petitions. The Family Courts have dismissed the petitions filed under Section 125 of Cr.P.C. on the ground that respondents – husband have filed petitions invoking the provision of Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and decree is passed for restitution of conjugal rights. But the petitioners – wife did not join companionship of the respondents – husband. Therefore, on this ground that the wife did not join matrimonial home of the husband, which amounts to voluntary desertion, hence, the Family Court has concluded that the petitioners – wife are not entitled for maintenance. Accordingly, dismissed the petitions. 3. Heard the arguments from both sides and perused the records. 4. Learned counsel for the petitioners – wife in all the cases submitted that Section 125 of Cr.P.C. is the beneficial legislation achieving social justice to destitute wife, children and old aged parents. When on certain

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allegations that the respondents – husband have subjected the petitioners – wife into cruelty, ill-treatment and harassment to bring dowry amounts constraining the petitioners – wife to live separately. The wife is entitled social protection and maintenance under Section 125 of Cr.P.C., which is enacted for providing maintenance to the wife. Therefore, submitted that just because a decree for restitution of conjugal rights is obtained by husband and wife do not join husband that does not mean that the wife is not entitled for maintenance from the husband. He also submitted that just because the wife does not join companionship of husband in spite of decree of restitution of conjugal rights, that does not amount to voluntary desertion by the wife. Therefore, submitted that the Family Court without following principles of law laid down by the Hon’ble Supreme Court and the spirit of enacting Section 125 of Cr.P.C. has erroneously dismissed the petition filed for maintenance. He further submitted that when a divorced wife is entitled for maintenance but denying maintenance to the destitute wife though divorce

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is not obtained is amounting to discrimination among the wife. Therefore, irrespective of decree of restitution of conjugal rights, the wife is entitled for maintenance. Therefore, prays to allow the petitions and grant maintenance to wife. 5. On the other hand, learned counsel for the respondents – husband submitted that when a decree for restitution of conjugal rights is obtained by the husband and if wife does not join matrimonial house of the husband, it amounts to voluntary desertion by wife which attracts the provisions of Section 125 (4) of the Cr.P.C. Therefore, the Family Court is justified in dismissing the claim petitions. Hence prays to dismiss the petitions. 6. Learned counsel for the respondents – husband places reliance on the following judgments:- i. Sri.Subbaraya V. Manja vs. Smt.Rajalaksmi and another in R.P.F.C.No.110/2012 dated 24.04.2014 (subbaraya case);

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ii. In the case of Khursheed Ahmad vs. Smt.Zakira reported in 2006 SCC Online P & H 900 (Khursheed Ahmad case); 7. Upon hearing arguments from the respective learned counsels following point arises for my consideration:- Whether, under the facts and circumstances involved in the case, upon the allegation made by wife against her husband that he had subjected the wife to cruelty, harassment, torture and wife decides to live separately from the husband and file petition under section 125 of Cr.P.C. for maintenance; then husband files petition under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and obtains decree for restitution of conjugal rights against the wife; then in spite of decree for restitution of conjugal rights, the wife do not join matrimonial home of husband, whether, it amounts to voluntary desertion by wife under section 125(4) of Cr.P.C. thus not entitling wife for claiming maintenance against husband as per section 125(1) of Cr.P.C.? 8. The facts in all the cases are that petitioners are wife of respondents respectively. The relationship

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between the parties as wife and husband is not disputed. On certain allegations made against the respondents, the petitioners have left matrimonial home and started living separately. The allegations made by the petitioners against the respondents are that the respondents have subjected the petitioners to cruelty, ill-treatment, harassment etc. The petitioners have felt that there is threat to their lives. Therefore, they have started to reside separately. When the wife has become destitute for sustaining in life and to lead normal life, to get fundamental necessity i.e., food, cloth, medicine etc., they have filed petitions seeking maintenance under Section 125 of Cr.P.C. The Family Court has dismissed the petitions filed under Section 125 of Cr.P.C. on the reason that the respondents have obtained decree for restitution of conjugal rights and the wife did not join matrimonial home of the respondents – husband, hence it amounts voluntary desertion under sub-section (4) of section 125 of Cr.P.C and thus, they are not entitled for maintenance and accordingly, dismissed the petition.

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dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 4. Article 15(3) of the Constitution of India provides that: "Nothing in this article shall prevent the State from making any special provision for women and children." 5. Article 15 (3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time. 6. Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors1. held that the object of maintenance laws is: "9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections

1 (1978) 4 SCC 70(AIR 1978 SC 1807)

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like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts. 7. The legislations which have been framed on the issue of maintenance are the Special Marriage Act 1954 ("SMA"), Section 125 of the Cr.P.C. 1973; and the Protection of Women from Domestic Violence Act, 2005 ("D.V. Act") which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities.

(d) Section 125 of the Cr.P.C. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions: (i) the husband has sufficient means; and (ii) "neglects" to maintain his wife, who is unable to maintain herself.

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In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court/family court in an appropriate proceeding, such as the Hindu Marriage Act, 1956. In Bhagwan Dutt v Kamla Devi(1975) 2 SCC 386: (AIR 1975 SC 83) the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is "unable to maintain herself" is entitled to seek maintenance. The Court held: "19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments."

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(emphasis supplied) Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs. 500 "in the whole". In view of the rising costs of living and inflation rates, the ceiling of Rs. 500 was done away by the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment Act states that the wife had to wait for several years before being granted maintenance. Consequently, the Amendment Act introduced an express provision for grant of "interim maintenance". The Magistrate was vested with the power to order the respondent to make a monthly allowance towards interim maintenance during the pendency of the petition. Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days' from the date of service of notice on the respondent. In Chaturbhuj v. Sitabai (2008) 2 SCC 316: (AIR 2008 SC 530) this Court held that the object of

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maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 of the Cr.P.C. is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution. Proceedings under Section 125 of the Cr.P.C. are summary in nature. In Bhuwan Mohan Singh v Meena and Ors (2015) 6 SCC 353: (AIR 2014 SC 2875). this Court held that Section 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able -bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim u/S 125 Cr.P.C. came up for the consideration in

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Chanmuniya v. Virendra Kumar Singh Kushwaha and Anr. (2011) 1 SCC 141: (2011 Cri LJ 96 (SC)) before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term "wife," to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre-condition for grant of maintenance u/S. 125 Cr.P.C. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage. The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings u/S. 125

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Cr.P.C. such strict standard of proof is not necessary.” 10. Section 125 of Cr.P.C. is a social beneficial legislation. The object of this provision is to achieve social justice by providing social security to the destitute. Even divorced wife is entitled for maintenance as per Section 125 of Cr.P.C. as per law laid down by the Hon’be Supreme Court in the catena of decisions. When this being the facts, if husband obtains decree for restitution of conjugal rights and wife refuses to join companionship of husband, whether it takes away right of wife for claiming maintenance is the question to be considered in the present case. 11. Section 9 of the Hindu Marriage Act, 1955 reads as follows:- “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition

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and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.” 12. As per sub-section (4) of section 125 of Cr.P.C., if there is no reason for the wife to desert husband or wife deserts husband voluntarily on her own will then the wife is not entitled for maintenance under Section 125 of Cr.P.C. After passing decree for restitution of conjugal rights and if wife does not join husband whether amounts to voluntary desertion or what are the reasons for the wife to reside separately is to be considered. 13. These type of situations are to be considered on the aspect that what compels the wife to leave matrimonial home of husband. There are so many facts compelling wife to leave matrimonial home of husband such as, ill-treatment, cruelty, dowry harassment, threat to life etc. No women in Bharatha leaves voluntarily matrimonial home of husband. The bondage between husband and wife is sacred one as per Hindu traditions and customs. The solemnization of marriage between a

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male and female among Hindus is not a mere contract but it is a sacred celebration of union of two souls. When such being the traditions we have, if a wife decides to leave husband and takes decision to start residing independently/separately from husband, then what mental agony might have occurred to the wife and apprehending feelings of wife, what bad experiences the wife must have undergone to take such extreme step of residing separately from husband is not a simple factor just to give maintenance or not to give maintenance. Hindu concept of marriage: Marriage as a sacrament Among Hindus.—Manu laid down: Wife is a divine institution given by Gods. One should not think that one has obtained her by choice. Her unity (with her husband) is established by the Vedas A woman is half of her husband and completes him (Ardha Narishwara).

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A Women must be honoured by her father, brother, husband and brother-in-law, who desires their own welfare. Where women are honoured, the Gods are pleased, but where they are not honoured, no sacred rites yield any reward. Neither by sale nor desertion can a wife be released from her husband, this, we understand is the law ordained by the creator in former times.

Let mutual fidelity continue till death, this in few words, may be considered as the highest Dharma of husband and wife. Let a man and woman united in marriage constantly be beware lest at any time disunited, they violate their mutual fidelity. The objects of a Hindu marriage have been to have offsprings, to be able to perform religious rites and sacrifices (which a man can perform only along with his wife) and to have highest conjugal happiness and heavenly bliss for the ancestors and oneself the achievement of all these objectives are dependent upon the wife. Manu declared that a man who has not taken a wife has not fully perfected his personality and must be regarded as incomplete and imperfect. His personality is developed and completed, manu declared, only upon the union of his wife, himself

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and his offspring. This is the significance of unity of personality of man and his wife under Hindu law. Thus, according to the Grihyasutras, marriage is not a contract but a spiritual union, a holy bond of unity. The words addressed to the bride after the saptapadi are: Into my will, I take thy heart, thy mind shall follow mine. Probably, no other people have endeavoured to idealize the institution of marriage as the Hindus have done. Even in the patriarchal society of the Rig vedic Hindus, marriage was considered as a sacramental union. And it continued to be so in the entire Hindu period, and even in our contemporary world most Hindus regard their marriage as a sacrament. We find the following passage in the Manu Smriti: I hold your hand for saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and by the learned people. Manu enjoins on the wife that she should become a paturnuvarte, i.e., she should follow the same principles as her husband. According to the Rig Veda: Be thou mother of heroic children, devoted to the Gods, be

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thou Queen in thy Father-in-law’s household. May all Gods unite the hearts of us two into one. Wife is also ardhangini (half of man). According to the satpatha Brahmana: “The wife is verily the half of the husband. Man is only half not complete until he marries.” The Taittiriya samhita is to the same effect, “half is she of the husband that is wife”. From this notion of unity of personality of husband and wife, mutual fidelity of husband and wife is implied. Manu declared that mutual fidelity between husband and wife is implied. Manu declared that mutual fidelity between husband and wife is the highest Dharma. Manu further said that once a man and a woman are united in marriage, they must see that there are no differences between them, and that they remain faithful to each other. In the Shastra, husband and wife are referred to by several names. The husband is known as Bharta, because he is to support his wife, he is also known as pati, because he is to protect her. On the other hand, the wife is known as jaya, because one’s own self is begotten on her. According to the Mahabharata, by cherishing woman, one but virtually worships the goddess of prosperity herself; by afflicting her, one but afflicts the goddess of prosperity. A man’s half is

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his wife: the wife is her husband’s best of friends; the wife is the source of Dharma, Artha and Kama, and she is also the source of Moksha. In the Ramayana, the wife is said to be the very soul of her husband. She is grihani (the lady of the house) in her husband’s household, sachiva (wise counsellor), sakhi (confidante) to her husband and dearest disciple of her husband in the pursuit of art. She is grihalakshmi, ardhangini and samarajyi. Thus, Hindus conceived of marriage as a sacramental union, as a holy union. This implies several things. Firstly, the marriage between man and woman is of religious or holy character and not a contractual union. For a Hindu marriage is obligatory, for begetting son, for discharging his debt to his ancestors and for performing religious and spiritual duties. Wife is not merely a grihapatni but also dharmapatni and sahadharmini. (courtesy – Law of Marriage & Divorce, Paras Diwan, Seventh Edition, LexisNexis Publications, page No.14, 15, 16.) 14. Therefore, marriage among Hindus is a sacrament; celebration of union of two souls and is not a contract. When there is such a divine concept of institution of marriage among

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Hindus, and wife leaves her parents home and decides to join her husband’s matrimonial home, with all dreams of building her life, if the wife decides to live separately from the husband, then one can apprehend how much mental agony, frustration, hardship has undergone in the mind of wife. 15. No woman in Bharat for flimsy reasons takes decision to live separately from husband. There must have been some reason compelling the wife to reside separately. Therefore, just because there is a decree of restitution of conjugal rights is obtained by the husband, how far it is correct to compel the wife to join matrimonial home of husband when wife is going to turmoil. Therefore, these two aspects are to be considered under the principles of decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act, vis- à-vis., right of claiming maintenance under section 125 of the Cr.P.C. is to be appreciated. 16. The Delhi High Court in the case of Babita vs. Munna Lal in Crl.Rev.P.1001/2018 decided on 22.08.2022 has held that mere existence or non compliance of decree of restitution of conjugal rights by itself could not debars

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or disentitles the wife within the meaning of section 125 of Cr.P.C. from getting an order of maintenance. The Division Bench of Punjab and Haryana High Court in the case of Ravi Kumar vs. Santosh Kumari, in Crl.R.44 of 1992 decided on 22.04.1997 has held at paragraph No.11 as follows: (11) We, therefore, answer the question of law referred to us as follows:-

1) The wife against whom a decree of restitution of conjugal rights has been passed by the Civil court, shall not be entitled to claim allowance under Section 125 of the Code of Criminal Procedure if in the proceedings of restitution of conjugal rights before the Civil court, a specific issue has been framed that whether without sufficient reason, the wife refuses to live with the husband, and the parties have been given an opportunity to lead evidence and thereafter specific findings are recorded by the Civil Court on this issue;

2) But in case the husband has got an ex parte decree of restitution of conjugal rights from the Civil Court, such decree shall not be binding on the Criminal Court in exercise of its jurisdiction under Section 125 of the Code of Criminal Procedure;

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3) In case the decree for restitution of conjugal rights has been obtained by the husband subsequent to the order for maintenance passed by the Magistrate under Section 125 Cr.P.C., then the decree ipso facto, shall not disentitle the wife to her right of maintenance and in that case, the husband will have to approach the Court of the Magistrate under sub-section (5) of Section 125 of the Code of Criminal Procedure for cancelling the order granting maintenance under Section 125 Cr.P.C.;

And

4) The wife against whom decree of restitution of conjugal rights in the manner indicated in our first conclusion has been passed, will get the right to claim maintenance from the husband with effect from the date when she is granted divorce and she will continue getting this maintenance till she re-marries. 17. The High Court of Himachal Pradesh in the case of Hem Raj vs. Urmila Devi and others, reported in 1996 SCC Online HP 116, has held that if husband obtains a decree for restitution of conjugal rights, and if wife does not joint the husband, then the wife is not entitled for maintenance under section 125 of Cr.P.C.

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wife like torture, ill-treatment, making insult etc.,. Some reasons cannot be expressed open to the society like impotency or any other diseases of the husband, which cannot be expressed to anyone else in the society, even some times to her parents also. Therefore, there are various reasons for the wife to take extreme step of desertion to reside separately from the husband. When the wife becomes destitute, she has to struggle hard for her maintenance. 21. Therefore under these circumstances if husband files a petition under section 9 of the Hindu Marriage Act, for restitution of conjugal rights, then some times it may not be possible for the wife to contest the said petition due to her economical incapacity. Even though the wife contest the petition, it is not possible for her to express all the sensitive matters/issues to the Court openly for the reason that to preserve prestige and honour of the family of both her parents and her husband’s. Though the petition is contested and decree for restitution of conjugal rights is

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passed, but compelling the wife to join her husband is nothing but putting forcefulness on the mind of the wife to join the husband infringing her privacy and her willingness and wish. Therefore, no force can be applied either to husband or wife to join the spouses. The existence of wife is not a mere physical body, but it is about feelings, mental decision, physical decision, emotions and thus, wife is not a mere physical entity like any other object. Wife is a human being. Hence she cannot be forced to join her husband against her will and wish. Though the husband obtains a decree for restitution of conjugal rights, but it cannot be executed unless wife is willing to join the company of husband on her own will and wish. 22. Section 9 of the Hindu Marriage Act is legislated with above object making a platform to make to unite husband and wife. But just because decree of conjugal rights is granted, it cannot be executed against the feelings and emotions of wife compelling her to join husband, as the wife is not a mere object of physical

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entity. Though the Civil Court while considering the petition for restitution of conjugal rights can see only evidence produced before it, but some things cannot be expressed openly. Even wife takes a prudent approach, which is better to say, which is not better to depose all the things before the Court to preserve prestige and honour of the family of both the husband and wife. Therefore, just because restitution of conjugal rights decree is passed, such a decree cannot be executed, otherwise it amounts to put pressure and compulsion on the mind of the wife to join the husband and in this regard the wife’s status has become the only physical entity. This is forcing the wife to join the husband on the basis of a decree for restitution of conjugal rights is nothing but violation of Article 21 of the Constitution of India. The wife is not mere animal existence or a physical body entity. It is a law of nature that no one can be forced to commit the act against his/her own will. Therefore just because the decree of restitution of conjugal rights is obtained, though it is contested, not only exparte decree and when the wife do

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not join the matrimonial home of the husband, it does not amount to voluntary desertion of husband as per sub- section 4 of section 125 of Cr.P.C. 23. There is a recent development that section 9 of the Hindu Marriage Act is used as a platform to obtain a decree of divorce before invoking section 13 of the Hindu Marriage Act to make a ground that the wife has deserted husband voluntarily. Therefore, the petition under section 9 of the Hindu Marriage Act is filed and obtained a decree of restitution of conjugal rights, then, if the wife does not join the husband, it enables the husband to raise a ground of desertion by the wife in divorce petition. Therefore, just because there is a decree of restitution of conjugal rights, it always does not mean that really husband wants wife. Therefore, law is being used in this context also. Hence it cannot always be said that just because contested petition for decree of conjugal rights proves that wife has on her own willingness refused to join the companionship of the husband. Therefore, though the decree for restitution of

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conjugal rights is passed irrespective of exparte or contesting the petition, the destitute wife is entitled for maintenance under section 125 of Cr.P.C. 24. Even a divorced wife is entitled for maintenance. When the divorced wife is entitled for maintenance, why not for a destitute wife during subsisting marriage. Therefore it is discrimination that divorced wife is entitled for maintenance and a destitute wife just because living separately is not entitled for maintenance. Thus, it is violative of Article 14 of the Constitution of India. 25. When a petition is filed under section 9 of the Hindu Marriage Act, the proceedings is summary in nature and moreover the Civil courts are having normal tendency to allow the petition for restitution of conjugal rights. Decreeing the petition for restitution of conjugal rights is a general rule. Dismissal of petition is exception. When the proceedings under section 9 of the Hindu Marriage Act is summary in nature, and though whatever evidence is

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produced before the Civil Court, decree of restitution of conjugal rights will be passed. As above stated, just decree for restitution of conjugal rights is passed, it cannot be forced the wife to join the husband. External force cannot be applied compelling the wife to join the husband against her will. 26. The Hon’ble Supreme Court has upheld the constitutional validity of section 9 of Hindu Marriage Act. In the case of Smt.Saroj Rani vs. Sudarshan Kumar Chadha, reported in (1984) 4 Supreme Court Cases 90, it is held that the concept of restitution of conjugal rights is based on the idea that marriage is a sacrament and it is the duty of the parties to live together. Section 9 of the Hindu Marriage Act is an aid to make an attempt to re-union husband and wife through the process of law. Section 9 of the Hindu Marriage Act is for protecting institution of marriage and its objective is to maintaining marital harmony. Thus, its constitutional validity is upheld by the Hon’ble Apex Court.

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husband. This is the concept of restitution of conjugal rights. 28. In the case of Sunita Kachwaha vs. anil Kachwaha, reported in (2014) 16 SCC 715, the Apex Court had occasion to observe how to exercise the discretionary jurisdiction under Section 125 of the Cr.P.C. It was observed as under: “6. The proceeding under Section 125 Cr.P.C. is summary in nature. In a proceeding under Section 125 Cr.P.C., it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant-wife and the Respondent and observing that the appellant-wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of appellant-wife and the factual findings, as recorded by the Family Court.

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deciding the petition under section 125 of Cr.P.C. for maintenance but not solely being influenced by the decree of restitution of conjugal rights. As discussed above, there cannot be forceful circumstances for the wife to join the husband that may not be coming in the proceedings under section 9 of the Hindu Marriage Act. Therefore the Court has to consider the case in summary way and observe what are the compelling circumstances to reside separately and to decide the petition filed for maintenance. 30. Therefore, granting the decree for restitution of conjugal rights to the husband, ifso facto shall not debar the wife from claiming maintenance. Therefore, section 125 of Cr.P.C. and section 9 of the Hindu Marriage Act are to be interpreted for which reason and object they are enacted. Here, while considering the case for grant of maintenance, the purposeful interpretation shall be made. While interpreting, applying section 9 of the Hindu Marriage Act and section 125 of Cr.P.C, both the provisions are meant for achieving social justice.

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Protection and preservation of institution of marriage is also social justice. Therefore, just because the decree of restitution of conjugal rights is granted and the same is not complied with by the wife, that cannot defeat the social justice given to the wife and the way of law has been provided to the wife under section 125 of Cr.P.C. Therefore, these two legislatures shall be interpreted achieving social justice in general and social protection to wife. 31. As observed above, sometimes section 9 of the Hindu Marriage Act is a tool for husband to negate maintenance to the wife and sometimes making a platform to obtain decree of divorce. Therefore, for this reasons also just because the decree of restitution of conjugal rights is passed and wife is not willing to join the husband, it does not always amount to voluntary refusal of wife to join the husband. Therefore the petition filed under section 125 of Cr.P.C. are to be dealt with independently whether the wife is entitled for maintenance or not. The Courts

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while considering the proceedings under section 125 Cr.P.C., has to conduct independent enquiry by appreciating the evidence which is before the Court to reach conclusion whether wife makes out a ground and fulfill conditions for grant of maintenance. There is nothing in law to bar grant of maintenance under section 125 of Cr.P.C. in case a decree of restitution of conjugal rights is possessed by the husband. There is no express bar to grant maintenance to the wife against whom a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act has been passed, therefore there is no bar to entertain the petition for grant of maintenance. 32. The decree for restitution of conjugal rights at the hands of the husband at the most enures him to take defence in the proceedings initiated by wife under section 125 of Cr.P.C., but for the Court it shall not be a sole factor to refuse grant of maintenance to wife. Therefore the petition filed under section 125 of Cr.P.C. can be considered on its own and independently after receiving

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evidence on record, but without being influenced by the decree of restitution of conjugal rights. 33. Another aspect is that as observed above, if the non compliance of decree of restitution of conjugal rights, it may result into divorce by taking a ground by the husband. It is settled law that even divorced wife is entitled to claim maintenance. Therefore, it is improper and unfair to deny maintenance to wife when she becomes destitute. Accordingly the point for consideration is answered that though there is decree of restitution of conjugal rights against wife and wife does not join the matrimonial home of the husband, that does not amount to voluntary refusal/desertion of husband, barring to claim maintenance under section 125 of Cr.P.C. 34. In these cases the petitions filed by wife were dismissed solely on the reason that the husband has obtained decree of restitution of conjugal rights and wife did not join the husband, therefore amounting to voluntary desertion of husband by wife, hence, wife is not entitled

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for maintenance under section 125 of Cr.P.C. These findings and conclusions of the Family Courts are hereby set aside. Therefore in these three petitions wife is entitled for maintenance. 35. Now let me consider the quantum of maintenance to be granted in each case as follows: RPFC No.104/2018. 36. In the present case the relationship between the petitioner and respondent as wife and husband is not disputed. It is also not disputed that the petitioner is legally wedded wife of the respondent. It is alleged that the relationship between the petitioner and respondent was strained. Therefore she filed petition under section 125 of Cr.P.C. for maintenance and that is dismissed. For the above stated reasons, the reasons assigned by the Family Court dismissing the petition are set aside. Thus the petitioner being wife of the respondent and is a destitute wife is entitled for maintenance and quantified as follows.

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his wife. Therefore it is hereby ordered the respondent shall pay maintenance amount of Rs.10,000/- per month to the petitioner from the date of petition till the life time of petitioner wife or till she re-marries. Therefore the petition in RPFC No.104/2018 is liable to be allowed accordingly. RPFC No.134/2017 38. In the present case the petitioners are wife and two minor children of the respondent. The relationship between the parties is not disputed. At the time of filing the petition, the 2nd petitioner son was alive and he died on 11.09.2014 during the pendency of the petition. Therefore the Family Court has not granted maintenance to the 2nd petitioner. The Family Court has rejected the petition filed by the 1st petitioner wife and granted maintenance of Rs.6,000/- per month to the 3rd petitioner daughter till she get married. 39. The Family Court has rejected the maintenance to the 1st petitioner wife on the reason that the 1st

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petitioner wife is doing coolie work in the agricultural lands and also grazing cattle and hence is earning. Also another reason for rejection of maintenance to the wife is that she has not joined the husband in spite of decree of restitution of conjugal rights. 40. Just because the 1st petitioner wife goes for coolie work, the work in agricultural land and grazing cattle that does not mean that the wife is capable to earn and it is not the reason to shirk the responsibility of the husband to maintain the wife. When the wife become destitute, inevitably the wife has to work for her livelihood and for feeding the children. Therefore this does not mean that the respondent is not liable to pay maintenance. The wife and children could not await decree from the Family Court granting maintenance. Therefore for satisfying starvation of herself and children, inevitably without any alternative way, wife starts to work and therefore this is not the reason holding that the husband is not liable to

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pay maintenance. Therefore this approach of the Family Court is hereby set aside. 41. The respondent is proved to be teacher working in a Government Higher Primary School. Ex.P.5 is the certificate issued by the Block Education Officer, Srirangapattana, stating that the respondent husband is a Government Teacher. Ex.P.6 is the school fees paid receipts paid by the 1st petitioner giving education to her children. Further, Ex.P.7 to P.17 are the RTC extracts which prove the father of respondent is owner of agricultural land in which the respondent is having share definitely. Exs.P.18 to P.24 are the school fees paid receipts paid by the 1st petitioner wife of her children education. Therefore, when this being the evidence produced by the petitioner, it is proved that the 1st petitioner is wife and petitioners No.2 and 3 are children and respondent is working as a teacher in the Government Higher Primary School. It is defence of the respondent that the 1st petitioner’s parents are financially potential persons

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and thus the 1st petitioner is not entitled for maintenance from the respondent. Just because the parents or other relatives of the 1st petitioner have entered into agreement of development of their land, how this is concerned to the 1st petitioner in order to negate the petitioner to claim maintenance is not forthcoming. The parents of 1st petitioner may be financially potential persons, but that does not mean that the 1st petitioner is not entitled for maintenance from the husband. Inevitably the 1st petitioner after desertion started to live along with her parents and the parents and other relatives may be financially potential persons, but that cannot be the reason to shirk the responsibility to pay maintenance to the wife. 42. Ex.R.14 is the salary certificate of respondent showing gross salary of Rs.29,638/-. The respondent might have obtained loan such as housing loan, personal loan and other loans that would ultimately to the benefit of the respondent and therefore whatever instalments to be paid towards such loans and deductions might have been

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made in the salary slip of the respondent, that cannot be deducted while considering the quantum of maintenance. Ex.R.52 is the copy of sale deed of site, which proves that the respondent has purchased site in Mysuru City. The respondent might have availed loan for purchasing the said site and is paying instalments towards repayment of the said loan. But whatever instalments are paying and made deductions in the salary slip, that cannot be deducted while considering the quantum of maintenance to be determined, payable to the wife, for the reason that those loans availed or any deductions are made are ultimately to the benefit of the respondent. Therefore, considering the evidence that the respondent is a Government employee, working as a teacher in the Government Higher Primary School and as per Ex.R.14 salary certificate, issued by the Block Education Officer, Srirangapattana stating that the respondent was receiving gross salary of Rs.29,638/- as on 14.09.2015, though the deductions are shown as Rs.19,074/- and take home

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salary is Rs.10,564/-, such deductions cannot be considered for determining the quantum of maintenance. 43. In certain circumstances the husband makes arrangement for more quantum of deductions by creating artificial deductions so as to show lesser take home salary for the purpose of negating compensation to the wife or an attempt to make awarding lesser quantum of maintenance. Only the tax collected towards income tax and professional tax are to be deducted. Whatever the other deductions are ultimately to the benefit of the husband. Therefore, after deductions in the salary slip towards KGID, GPF, LIC, society loan, SBI loan, cannot be deducted for the purpose of quantifying the maintenance. Therefore, considering the gross salary is Rs.29,638/- and the respondent being Government servant is having other facilities and perks such as medical reimbursement, etc., therefore, for the purpose of quantifying the maintenance, gross salary minus tax paid towards income tax and professional tax is considered. Accordingly it is ordered

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that the respondent husband shall pay maintenance amount of Rs.10,000/- to the 1st petitioner wife and Rs.8,000/- per month to the 3rd petitioner daughter who is studying, from the date of petition till her life time in the case of 1st petitioner or she remarries and till marriage in the case of the 3rd petitioner daughter. Therefore, the petition filed by the petitioners in RPFC No.134/2017 is liable to be allowed accordingly. RPFC No.131/2019. 44. In this case the relationship of the parties as 1st petitioner is wife and 2nd petitioner is minor daughter of the respondent is not disputed. The Family court has granted maintenance of Rs.7,000/- per month only to the 2nd petitioner daughter, but rejected claim of maintenance to the 1st petitioner wife on the ground that the 1st petitioner wife is working. The Family Court has observed and came to the conclusion that since the 1st petitioner has not honoured the decree of restitution of conjugal rights obtained by the respondent husband, and the

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petitioners have left the matrimonial home of the respondent, therefore rejected the claim of the 1st petitioner and granted maintenance of Rs.7,000/- per month to the 2nd petitioner daughter. The Family Court has observed that before the marriage the 1st petitioner might have been working but there is no evidence to show that as on the date of filing the petition the 1st petitioner was working and having source of income. PW.1 in her evidence deposed that she is doing fashion designing course. Just because the 1st petitioner was pursuing fashion designing course, that does not mean that the 1st petitioner wife is working and earning income and it is not the reason for shirking responsibility of the respondent husband to maintain the wife and child. 45. Upon considering the evidence on record and averments taken in the petition and statement of objection of the respondent, it is proved that the 1st petitioner is not working and does not have any source of income. Whereas it is case of the respondent husband that he is an engineer

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working at Mahindra Tech Company at Pune and receiving lucrative salary. The respondent has taken contention that he has purchased a plot in Pune for Rs.44,00,000/- out of his savings. Therefore, this proves that the respondent is a financially capable person. Therefore, upon considering the entire case on all its preponderance of probabilities, in the background of their pleadings and averments in the petition and admissions made in the statement of objections and evidence on record, it is proved that the respondent is an engineering graduate working in a private company and when he was able to purchase plot worth of Rs.44,00,000/- in Pune, which proves the financial capacity of the respondent. Though for the sake of assumption respondent might have purchased property worth of Rs.44,00,000/- by raising loan, unless having capacity to repay the loan either by way of interest or by equal monthly instalments, the respondent husband could not have ventured to purchase the plot worth of Rs.44,00,000/-. Therefore, this shows the financial capacity of the respondent. Therefore, the respondent

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husband is liable to pay maintenance. Considering the factors discussed above, it is hereby ordered that the respondent to pay maintenance amount of Rs.25,000/- to the 1st petitioner wife and Rs.10,000/- to the 2nd petitioner daughter from the date of petition till the lifetime of the 1st petitioner wife or she remarries and till the marriage in the case of 2nd petitioner daughter. 46. Therefore, for the aforesaid reasons, the petitions filed by the wife and children above stated are liable to be allowed. Hence, I proceed to pass the following: ORDER i) All the three revision petitions are allowed. ii) The order dated 20.07.2017, passed in Crl.Misc.No.128/2016, by the Family Court, Shivamogga, is hereby set aside. iii) The Crl.Misc.No.128/2016, on the file of the Family Court, Shivamogga, is hereby allowed.

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iv) It is hereby ordered that the respondent husband in Crl.Misc.No.128/2016 (RPFC No.104/2018) shall pay maintenance amount of Rs.10,000/- (Ten Thousand Rupees) per month to the petitioner from the date of filing of the petition till the life time of petitioner wife or till she re-marries. v) The order dated 14.02.2017, passed in Crl.Misc.No.558/2013, by the Prl. Judge, Family Court, Mysuru, is hereby modified. vi) It is hereby ordered that the respondent husband in Crl.Misc.No.558/2013 (RPFC No.134/2017) shall pay maintenance amount of Rs.10,000/- (Ten Thousand Rupees) per month to the 1st petitioner wife and Rs.8,000/- (Eight Thousand Rupees) per month to the 3rd petitioner daughter, from the date of filing of the petition till her life time in the case of 1st petitioner or she re-marries and till the marriage in the case of the 3rd petitioner daughter.

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vii) The order dated 17.05.2019, passed in Crl.Misc.No.133/2018, by the I Addl. Prl. Judge, Family Court, Mysuru, is hereby modified. viii) It is hereby ordered that the respondent husband in Crl.Misc.No.133/2018 (RPFC No.131/2019) shall pay maintenance amount of Rs.25,000/- (Twenty-Five Thousand Rupees) per month to the 1st petitioner wife and Rs.10,000/- (Ten Thousand Rupees) per month to the 2nd petitioner daughter, from the date of filing of the petition till the lifetime in the case of the 1st petitioner wife or she re-marries and till the marriage in the case of 2nd petitioner daughter. ix) No order as to costs.

Sd/- JUDGE

MH List No.: 2 Sl No.: 1