Rajathi V. C. Ganesan [Sc 1999]

Wife presented a petition under Section 125 of the Code claiming from her husband, the respondent, maintenance for herself and her two daughters. She alleged that her husband having sufficient means neglected or refused to maintain her and that she was unable to maintain herself.

Judicial Magistrate granted her maintenance only at the rate of Rs.200 per month. Still feeling aggrieved husband filed a petition under Section 482 of the Code in the Madras High Court. This was allowed by learned single Judge, who by the impugned order, dismissed the petition of the wife for maintenance.

Proceedings under Section 125 of the Code are of summary nature. This Section is meant to provide immediate relief to the wife, minor children and parents, who are unable to maintain themselves. This will be when the husband having sufficient means neglects or refuses to maintain her, she being unable to maintain herself. 

Explanation to the proviso to sub-section (3) of Section 125 states that if a husband has contracted marriage with any other woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

In the present case wife alleged that her husband had contracted a second marriage. She filed a complaint for an offence under Section 494 of the Indian Penal Code. It is stated that the complaint was dismissed and husband was acquitted. High Court took this circumstance against the wife and adversely commented on her refusal to live with her husband.

High Court, it would appear, lost sight of the fact how it would be difficult for the wife to prove the second marriage. This Court has held that to prove the second marriage as a fact essential ceremonies constituting it must be proved and if second marriage is not proved to have been validly performed by observing essential ceremonies and customs in the 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 sub-section (3) 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 husband, e.g., if she is subjected to cruelty by him.

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 herself” would mean that 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 is enacted on the premise that it is 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 neglect or refuse to maintain them or any one of them.

Even though wife was unable to prove that husband has remarried, yet the fact remained that the husband was living with another woman. That would entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise.

We are not going into the question if the High Court on examining the case on merit was correct in coming to the conclusion that the wife was possessed of sufficient means and was able to maintain herself. In the present appeal, we are only concerned to see if the High Court was justified in invoking its inherent powers under Section 482 of the Code and we do not think the High Court was right.

In the present case, the High Court minutely examined the evidence and came to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. All this High Court did in exercise of its powers under Section 482 of the Code which powers are not a substitute for a second revision under sub-section (3) of Section 397 of the Code. The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles.

It was not necessary for the High Court to examine the whole evidence threadbare to exercise jurisdiction under Section 482 of the Code. Rather in a case under Section 125 of the Code trial court is to take a prima facie view of the matter and it is not necessary for the court to go into the matrimonial disputes between the parties in detail.

Whatever may be the merit of the case, High Court wrongly exercised its jurisdiction under Section 482 of the Code in passing the impugned order.