LexRAJATHI versus C. GANESAN
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RAJA THI v. C. GANESAN JULY 22, 1999 [S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] Criminal Law : Criminal Procedure Code, 1973 : Section 125(3) Explanation to Second Proviso-Husband lived with another woman-Wife/ailed to prove his second marriage under S.494 !PC- Held : Under such circumstances, wife entitled to live separately. A B c Section 125(3) Explanation to Second Proviso-Maintenance Petition-Wife lived separately-Duration of such living not pleaded-Held D : wife is not required to plead as to since when she was living separately-- This not a relevant consideration. Section 125(J)(a)-Expression "unable to maintain herself'-Meaning of-Held: Would mean the means available to the wife while she was living E with her husband and not after her desertion-Onus on the husband to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain his wife-Statement of wife that she was unable to maintain herself would be enough-It would be for the husband to prove otherwise. Section 125-Maintenance proceedings-Conduct of-By trial court- Scope-Held: Trail court is to take a prima facie view of the matter-Trial court not required to go into the matrimonial disputes between the parties in detail. Sections 397(3) and 482-Second revision-Bar of-First revision dismissed by Sessions Court-However, High Court allowed second revision- Held : Inherent powers of High Court not a substitute for second revision- Hence, High Court wrongly exercised its jurisdiction under under S. 482. Words and Phrases: 1047 F G H 1048 SUPREME COURT REPORTS [1999] 3 S.C.R. A "Unable to maintain herself'-Meaning of -In the context of S. 125(J)(a) of Criminal Procedure Code, 1973. The appellant-wife presented a petition under Section 125 of the Criminal Procedure Code, 1973 against her husband respondent alleging that her husband having sufficient means neglected or refused to maintain B her and that she was unable to maintain herself. The Magistrate granted maintenance at the rate of Rs. 200 per month to the appellant-wife. The revision petition filed by the respondent-husband was dismissed by the Sessions Court. But the High Court allowed the respondent's petition under Section 482 Cr. P.C. Hence this appeal. c Allowing the appeal, this Court HELD : 1.1. In the pres~nt case the wife alleged that her husband had contracted a second marriage. She filed a complaint for an offence under Section 494 of the Penal Code, 1860, which was dismissed and the husband D was acquitted. The High Court took this circumstance against the wife and adversely commented on her refusal to live with her husband. The High ' Court lost sight of the fact that it would be difficult for the wife to prove the second marriage. To prove the second marriage as a fact essential ceremonies constituting it musfbe-pi:oved and if second marriage is not proved to have been validly performed by observing essential ceremonies and customs in the E community, conviction under Section 494 IPC ought not to be made. The fact, however, remains in the present case that the husband is living with another woman. Proviso to Section 125(3) of the Criminal Proceedure Code, 1973 would squarely apply and justify refusal of the wife to live with her husband. There can be, however, other grounds for the wife to refuse to live with her F husband, e.g., if he subjects her to cruelty. [1052-F-H] 1.2. This was a case where the husband neglected or refused to maintain his wife. The High Court did not consider the question if husband was having sufficient means. It rather unnecessarily put the burden on the wife to prove that she was unable to maintain herself. The words "unable to maintain G herself'' would meaJJ.!hat means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 of the Code is enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not H neglect or refuse to maintain them or any one of them. The High Court also 0 .. RAJATHI v. C. GANESAN [D.P. WADHWA, J.] 1049 observed that the wife did not plead as to since when she was living separately. A This is not quite a relevant consideration. Ev
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