Full Judgment Text
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PETITIONER:
RAMESH CHANDER KAUSHAL
Vs.
RESPONDENT:
VEENA KAUSHAL & ORS.
DATE OF JUDGMENT27/04/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
CITATION:
1978 AIR 1807 1978 SCR (3) 782
1978 SCC (4) 70
ACT:
Criminal Procedure Code, (Act II of 1974), 1973 Section 125-
Scope of-Construction of the words "in the whole" occurring
in s. 125.
HEADNOTE:
The petitioner sought divorce through the civil court from
the respondent and the respondent claimed maintenance from
the criminal court. As an interim measure, the district
court awarded maintenance and the High Court fixed the rate
at Rs. 400/- per mensem for the spouse as a provisional
figure. Meanwhile the Magistrate, on the evidence before
him, ordered ex parte, monthly maintenance at Rs. 1000/- for
the respondent-mother and two children together.
In this Court, the petitioner contended : (i) a civil
court’s determination of the quantum is entitled to serious
weight and the criminal court, in its summary decision fell
into an error in ignoring the former; and (ii) the awardable
maximum for mother and children, as a whole under section
125 of the Code of Criminal Procedure was Rs. 500/-, having
regard to the text of the section.
Dismissing the special leave petition, the Court
HELD (1) Though a final determination of a civil right by a
civil court must prevail against a like decision in a
criminal court, in the instant case, two factors make the
principle inapplicable. Firstly, the direction by the Civil
Court is not a final determination under the Hindu Adoptions
and Maintenance Act but an order pendente lite under section
24 of the Hindu Marriage Act to pay the expenses of the
proceeding and monthly during the proceeding, such sum as,
having regard to the petitioner’s own income and the income
of the respondent, it may seem to the Court to be
reasonable. Secondly, this amount does not include the
claim for maintenance of the children although the order
does advert to the fact that the respondent has their
custody. This incidental direction is no comprehensive
adjudication. Therefore, barring marginal relevance for the
Magistrate, it does not bar his jurisdiction to award a
higher maintenance and the Magistrate cannot be faulted for
giving Rs. 1000/- on this score. [784 D-F]
(2) Sections of Statutes calling for construction by Courts
are not petrified print, but vibrant words with social
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functions to fulfil The brooding presence of the
constitutional empathy for the weaker sections like women
and children, must inform interpretation if it has to have
social relevance. [785B-C]
(3) The provision in Section 125 of the Code of Criminal
Procedure 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 Art. 39.
[785 B]
(4) ’In the whole’ in the context means working all the
items of maintenance together not all the members of the
family put together. This interpretation accords with
social justice and semantics and, is obvious. [787 B]
(5) Each claimant for maintenance, be he or she, wife,
child, father, or mother is independently entitled to
maintenance upto a maximum of Rs 500/-. Indeed an opposite
conclusion may lead to absurdity. Therefore, courts cannot
agree to the obvious jurisdictional inequity by reading a
limitation of Rs. 500/although what the section plainly
means is that the court cannot grant more than Rs. 500/- for
each one of the claimants. The Magistrate did not exceed
his powers while awarding Rs. 1000/- for mother and children
all together.
[786G, 787A]
Prabhavati v. Sumatilal, AIR 1954 Bom. 546 (FB); Md. Bashir
v. Noor Jahan Begum, [1971] Crl. LJ. 553 (Cal.); approved.
783
(6) Mere divorce does not end the right to maintenance.
Whether the appeal ends in divorce or no, the wife’s claim
for maintenance qua wife under the definition contained in
Explanation (b) to s. 125 of the Code continues, unless
parties make adjustments and come to terms regarding the
quantum or the right to maintenance. [788 C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Special Leave Petition
(Criminal) No. 1268 of 1977.
From the Judgment and Order dated 5-9-1977 of the Delhi High
Court in Criminal Revision No. 224 of 1977.
S. T. Desai and R. Bana for the Petitioner.
Y. M. Isser, S. Balakrishnan and M. K. D. Namboodri for
the Respondent.
The Order of the Court was delivered by
KRISHNA IYER, J.-Social justice is not constitutional
claptrap but fighting faith which enlivens legislative texts
with militant meaning. The points pressed in the Special
Leave Petition, which we negative, illustrate the functional
relevance of social justice as an aid to statutory
interpretation.
The conjugal tribulations of Mrs. Veena, the respondent, who
hopefully married Capt. Kaushal, the petitioner, and bore
two young children by him, form the tragic backdrop to this
case. The wife claimed that although her husband was
affluent and once affectionate, his romantic tenderness
turned into flagellant tantrums after he took to the skies
as pilot in the Indian Airlines Corporation. Desertion,
cruelty and break-up of family followed, that sombre
scenario which, in its traumatic frequency, flaring up even
into macabre episodes consternates our urban societies. The
offspring of the young wedlock were not only two vernal
innocents but two dismal litigations one for divorce, by the
husband, hurling charges of adultery, and the other for
maintenance, by the wife, flinging charges of affluent
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cruelty and diversion of affection after the Airlines
assignment. These are versions, not findings.
We do not enter the distressing vicissitudes of this marital
imbroglio since proceedings are pending and incidental
moralizing, unwittingly injuring one or the other party, are
far from our intent and outside the orbit of the present
petition. Even so, we cannot help but observe that the
current Indian ethos rightly regards the family and its
stability as basic to the strength of the social fabric and
the erotic doctrine of ’sip every flower and change every
hour’ and the philosophy of philandering self-fulfilment,
unless combated on the militant basis of gender justice and
conditions of service, are fraught with catastrophic
possibilities. AR public sector (why, private sector too)
institutions, including the Airlines, must manifest, in
their codes of discipline, this consciousness of social
justice and inner morality as essential to its life style.
Lascivious looseness of man or wife is an infectious disease
and marks the beginning of the
784
end of the material and spiritual meaning of collective
life. The roots of the rule of law lie deep in the
collective consciousness of a community and this
sociological factor has a role to play in understanding
provisions like Section 125 Criminal Procedure Code which
seek to inhibit neglect of women and children, the old and
the infirm. A facet of this benignancy of Section 125 falls
for study in the present proceeding.
The husband sought divorce through the civil court and the
wife claimed maintenance through the criminal Court. As an
interim measure, the District Court awarded maintenance and
the High Court fixed the rate at 400/- per mensem for the
spouse as a provisional figure. Meanwhile, the magistrate,
on the evidence before him, ordered ex-parte, monthly
maintenance at Rs. 1000/- for the mother and two children
together.
Sri S. T. Desai urged two points which merit reflection but
meet with rejection. They are that : (i) a civil court’s
determination of the quantum is entitled to serious weight
and the criminal court, in its summary decision, fell into
an error in ignoring the former; (ii) the awardable maximum
for mother and children, as a whole under Section 125 of the
Code was Rs. 500/- having regard to the text of the section.
Broadly stated and as an abstract proposition, it is valid
to assert, as Sri Desai did, that a final determination of a
civil right by a civil court must prevail against a like
decision by a criminal court. But here two factors make the
principle inapplicable. Firstly, the direction by the civil
court is not a final determination under the Hindu Adoptions
and Maintenance Act but an order pendente lite, under
section 24 of the Hindu Marriage Act to pay the expenses of
the proceeding, and monthly during the proceeding such sum
as, having regard to the petitioner’s own income and the
income of the respondent, it may seem to the court to be
reasonable. Secondly, this amount does not include the
claim for maintenance of the children although the order
does advert to the fact that the respondent has their
custody. This incidental direction is no comprehensive
adjudication.
Therefore, barring marginal relevance for the Magistrate it
does not bar his jurisdiction to award a higher maintenance.
We cannot, therefore, fault the Magistrate for giving Rs.
1000/- on this score.
The more important point turns on the construction of
section 125, Crl. Procedure Code which is a reincarnation
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of section 488 of the old Code except for the fact that
parents also are brought into the category of persons
eligible for maintenance and legislative cognizance is taken
of the devaluation of the rupee and the escalation of living
costs by raising the maximum allowance for maintenance from
Rs. 100/- to Rs. 500/-. The relevant portion of the section
reads
"125. (i) if any person having sufficient
means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
785
(b) his legitimate or illegitimate minor
child, whether married or not, unable to
maintain itself, or
a Magistrate of the first class may, upon
proof of such neglect or refusal, order such
person to make a monthly allowance for the
maintenance of his wife or such child, father
or mother, at such monthly rate not exceeding
five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to
time direct."
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 sec-
tions 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 advance the cause he cause of the
derelicts.
Sri Desai contends that section 125 of the Code has clearly
fixed the ceiling of the monthly allowance "for the
maintenance of.... wife or such child, father or mother, at
such monthly rate not exceeding five hundred rupees in the
whole". Assuming the Parliament not to be guilty of
redundancy it is argued that the words "in the whole" mean
that the total award- for wife, child, father or mother
together cannot exceed Rs. 500/-. We do not agree. Both
precedentially and interpretatively the argument is
specious.
The words which connote that the total, all together, cannot
exceed Rs. 500/- namely "in the whole’ have been inherited
from the previous Code although some ambiguity in the sense
of the clause is injected by these words. Clarity,
unfortunately, has not been a strong point of our
draftsmanship, at least on occasions, and litigation has
been engendered by such deficiency. Luckily, these words
have been subject to decisions which we are inclined to
adopt as correct. A Full Bench of the Bombay High Court in
Prabhavati v. Sumatilal(1) has held that the sum specified
is not compendious but separate. Chagla C.J. explained the
position correctly, if we may say so with respect :
"The suggestion that the jurisdiction of the
Magistrate is limited to allowing one hundred
rupees in respect of maintenance of the wife
and the children jointly is, in our opinion,
an impossible construction once it is accepted
that the right of the wife and of each child
is an independent right. Such a construction
would lead to extremely anomalous results.
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If, for instance, a wife applies for
maintenance for herself and for her children
and the Magistrate allows a maintenance of one
hundred rupees, and if thereafter an
(1) A.I.R. 1954 Bom. 546
786
illegitimate child were to come forward and to
make an application for maintenance, the
Magistrate having allowed an allowance to her
up to the maximum of his jurisdiction would be
prevented from making any order in favour of
the illegitimate child. Or, a man may have
more than one wife and he may have children by
each one of the wives. If the suggestion is
that maintenance can be, allowed in a
compendious application to be made and such
maintenance cannot exceed one hundred rupees
for all the persons applying for maintenance,
then in a conceivable case a wife or a child
may be deprived of maintenance altogether
under the section.
The intention of the Legislature was clear,
and the intention was to cast an obligation
upon a person who neglects or refuses to
maintain his wife or children to carry out his
obligation towards his wife or children. The
obligation is separate and independent in
relation to each one of the persons whom he is
bound in law to maintain. it is futile to
suggest that in using the expression "in the
whole" the Legislature was limiting the
jurisdiction of the Magistrate to passing an
order in respect--Of all the persons whom he
is bound to maintain allowing them maintenance
not exceeding a sum of one hundred rupees."
Meeting the rival point of view Chief Justice
Chagla held :
". . . . we are unable to accept the view
taken by the Division Bench that the
jurisdiction of the Magistrate is confined to
making a compendious order allowing one
hundred rupees in respect of all the persons
liable to be maintained."
A recent ruling of the Calcutta High Court in Md. Bashir v.
Noon Jahan Begum(1) has taken a similar view reviewing the
case law in India on the subject. We agree with Talukdar,
J. who quotes Mr. Justice Macardie:
"All law must progress or it must perish in the esteem of
man."
In short the decided cases have made a sociological approach
to, conclude that each claimant for maintenance, be he or
she wife, child, father or mother, is independently entitled
to maintenance up to a maximum of Rs. 500/-.
Indeed, an opposite conclusion may lead to absurdity. If a
woman has a dozen children and if the man neglects the whole
lot and, in his addiction to a fresh mistress, neglects even
his parents and all these members of the family seek
maintenance in one petition against the delinquent
respondent, can it be, that the Court cannot-
(1) 1971 Crl.L.J. 547@553.
787
award more than Rs. 500/- for all of them together ? On the
other hand if each filed a separate petition there would be
a maximum of Rs. 500/- each awarded by the Court. We
cannot, therefore, agree to this obvious jurisdictional
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inequity by reading a limitation of Rs. 500/- although what
the section plainly means is that the Court cannot grant
more than Rs. 500/- for each one of the claimants. "In the
whole" in the context means taking all the items of
maintenance together, not all the members of the family put
together. To our mind, this interpretation accords with
social justice and semantics and, more than all, is obvious
:
"It is sometimes more important to emphasize the obvious
than to elucidate the obscure."
-Attributed to Oliver Wendell Holmes.
We admit the marginal obscurity in the diction, of the
section but mind creativity in interpreting the provision
dispels all doubts. We own that Judges perform a creative
function even in interpretation.
"All the cases in this book are examples, greater or
smaller, of this function".
writes Prof. Griffith in the Politics of the Judiciary.(1)
The conclusion is inevitable, although the argument to the
contrary is ingenious, that the Magistrate did not exceed
his powers while awarding Rs. 1000/- for mother and children
all together.
We have been told by Shri S. T. Desai that the divorce pro-
ceeding terminated adversely to his client but an appeal is
pending. If the appeal ends in divorce being decreed, the
wife’s claim for maintenance qua wife comes to an end and
under section 127 of the Code the Magistrate has the power
to make alterations in the allowance order and cipherise it.
We make the position clear lest confusion should breed fresh
litigation.
The special leave petition is dismissed.
ORDER (22-8-78)
Noticing a patent error which has unfortunately crept in the
above judgment in the last paragraph thereof, counsel on
both sides were given notice to appear and they were heard.
Section 125(1), Explanation (b) of the Cr. P.C. reads
"Wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried."
The last paragraph in the judgment concludes with the
statement "If the appeal ends in divorce being decreed, the
wife’s claim for
(1) J.A.G. Griffith ’The Politics of the Judiciary’ p. 175.
788
maintenance qua wife comes to an end and under section 127
of the Code, the Magistrate has the power to make
alterations in the allowance order and cipherise it."
The judgment would seem to indicate that once divorce is
decreed the wife ceases to have any right to, claim
maintenance and that such an impact can be brought about by
an application u/S. 127 of the Code. It is clear that this
conclusion contradicts the express statutory provision. The
advocates on both sides agree that this is a patent error
and further agree that the law may be correctly stated and
the contradiction with the statute eliminated. Therefore,
we direct that in substitution of the last paragraph, the
following paragraph will be introduced.
"We have been told by Shri S. T. Desai that the divorce
proceeding has terminated adversely to his client but that
an appeal is pending: Whether the appeal ends in divorce or
no, the wife’s claim for maintenance qua wife under the
definition contained in the Explanation (b) to sec. 125 of
the Code continues unless parties make adjustments and come
to terms regarding the quantum or the right to maintenance.
We make the position clear that mere divorce does not end
the right to maintenance."
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We regret the error and pass this order under Art. 137 of
the Constitution with the consent of both sides so that the
ends of justice and the law that this Court lays down may be
vindicated.
S. R. Petition dismissed.
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