Hindu Marriage Act, 1955 (25 of 1955), Section 24 -- Interim maintenance of Rs.20,000/- p.m. awarded by Lower Court to wife -- Both the parties are highly qualified – Petitioner-husband is having income of Rs. 49,500/- per month and if the payment on account of rent and loan installment is taken into consideration, the monthly income of the petitioner is Rs. 25,772/- only -- Maintenance reduced to Rs.15,000/- p.m. and litigation expenses to the tune of Rs.10,000/-

(Para 4)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 25 – Divorce – Permanent alimony -- Trial Court is competent to determine the maintenance to be paid by the spouse concerned while passing any decree exercising jurisdiction under the above Act -- But such an exercise can be invoked by the trial Court only based on an application made to it for the aforesaid purpose.

(Para 5)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 25 – Divorce – Permanent alimony -- Respondent-wife never asked the trial Court to fix the maintenance to be paid to her nor was any separate application filed by the respondent before the trial Court to fix permanent alimony u/s 25 of the Act while passing a decree for divorce -- Trial Court passed the conditional order for dissolution of marriage subject to the deduction of 40% of salary of the appellant by the Army Authorities – Held, trial Court has passed the above conditional order against the spirit of Section 25 of the Hindu Marriage Act, 1955 -- Trial Court has to determine the permanent alimony payable by the appellant to the respondent, only on moving of a necessary application under Section 25 of the Hindu Marriage Act, 1955.

(Para 6-9)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Object of provisions of Section 125 Cr.P.C -- If any person having sufficient means, neglects or refuses to maintain his wife, who is unable to maintain herself or her legitimate or illegitimate child (children) unable to maintain itself (themselves), or his father or mother who are unable to maintain himself/herself, the Court upon proof of negligence or refusal, order such person to pay maintenance to his wife or child (children) or parents, as the case may be -- Primary object is to secure relief to the deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of the society so as to be tempted to commit crime or to tempt others to commit crime in regard to them.

(Para 11)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance -- As far as 'interim' maintenance is concerned, Section 125 of the Code was originally enacted, did not expressly empower the Court to make such order and direct payment of interim maintenance -- Court is having implied power to pass such an order -- Remedy provided by Section 125 Cr.P.C. is a summary remedy securing reasonable sum by way of maintenance subject to a decree passed by the competent civil court -- In absence of any express bar or prohibition, Section 125 Cr.P.C. cannot be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application -- As per provisions of the Section, two conditions are precedent to show that the wife is unable to maintain herself and that the husband has neglected or refused to maintain his wife.

(Para 11)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife – Duty of husband -- It is the obligation of the husband to maintain his wife, he cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

(Para 14)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife – Object of provision -- When the woman leaves the matrimonial home, the situation is quite different -- She is deprived of many a comfort -- Sometimes the faith in life reduces -- Sometimes, she feels she has lost the tenderest friend -- There may be a feeling that her fearless courage has brought her the misfortune -- At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort -- That is the only soothing legal balm, for she cannot be allowed to resign to destiny.

(Para 16)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife – Husband’s income of Rs. 35,000/- per month – Wife awarded maintenance @ Rs. 20,000/-  p.m. – Once the respondent-wife has made a specific averment with regard to capacity of the petitioner then onus shift upon the husband-petitioner to prove that he does not have sufficient means to pay maintenance -- Petitioner has not brought on record his income-tax returns and has not rebutted the averments with regard to his income -- Mere denial to earn anything is not a ground to deny maintenance -- It is only in case the wife is unable to maintain herself, then maintenance is to be paid by the husband -- Nothing on record to show that respondent-wife has any independent source of income -- Appropriate maintenance commensurate with the needs of wife keeping in view the paying capacity of her husband, which is a legitimate right of the wife and same should not be denied to her -- No element of greed should be seen into genuine needs of the wife – Maintenance of Rs.20,000/- p.m. affirmed.

(Para 1,20,21)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Unable to maintain – Capable of earning -- Highly qualified wife – Nowhere it has been mentioned, the wife who is capable of earning is not entitled for maintenance -- Wife who is unable to maintain herself is entitled for maintenance.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife and children – Object of -- Section 125 Proceedings are of summary in nature and are intended to enable destitute wives and children, whether they are legitimate or illegitimate and to get maintenance in a speedy manner -- It is meant to achieve social purpose and to prevent vagrancy and destitution -- It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

(Para 14)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance to wife – An amount of Rs. 20,000/- per month has been awarded to wife as interim maintenance from the date of filing of the application -- Husband is serving in a private company and earning handsome salary i.e. Rs. 1,10,000/- per month after deduction of the tax – Awarded amount cannot be said to be on the excessive side.

(Para 18)

Income Tax Act, 1961 (43 of 1961), Section 64(1A) -- Maintenance to minor – Interest thereupon -- Whether taxable – Held, Income Tax Act does not exempt interest income accruing to a minor, on an amount deposited as maintenance and his or her income is clubbed with his/her parent's/guardian, thereby requiring the minor apart from paying income tax to pay tax at the rate paid by his guardian -- Matter is, therefore, forwarded to the Law Commission of India and the Ministry of Women and Child Development, New Delhi, for consideration whether suitable amendments are required to be made in the Income Tax Act, 1961, to ensure that maintenance settled on minors is exempted from income tax or is treated differently.

(Para 5)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Section 3, 12 -- Domestic relationship -- Domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household -- The living together can be either soon before filing of petition or 'at any point of time'.

(Para 15)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Section 3, 12 -- Domestic violence – Meaning of -- Acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence -- When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act -- One has to make a distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household -- Only violence committed by a person while living in the shared household can constitute domestic violence.

(Para 16)

C. Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Section 3, 12 -- Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Section 3, 12 -- Domestic violence – Grand-daughter alleging domestic violence against grand-father – Quashing of complaint and summons -- Complainant was neither living with her grandfather nor the grand father has to maintain granddaughter in the presence of her father -- Similarly there was no domestic relationship between the complainant and the other respondents who are her aunts and uncles being related to her father -- Complaint could not have been filed by the granddaughter against the grandfather even to enforce the property rights -- Complaint filed by grand-daughter was a gross misuse of the process of the Court -- Case is not covered within the meaning of the term 'Domestic Violence' as defined under Section 3 of the Act 2005. -- Magistrate should have examined whether there existed a domestic relationship or whether there was a shared household -- Complaint and the notice ordered by the Magistrate is quashed.

(Para 16, 17)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18(2)(a)(b) – Maintenance to the wife – Separate residence to wife -- Under sub-section 2 (b), the wife is entitled to live separately without forfeiting her claim to maintenance, if the husband has treated her with cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband -- Under Clause (a), desertion or abandoning the wife is also ground to live separately.

(Para 5)

B. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18(2)(b) – Cruelty – Voice sample -- Proof of -- So far as production and proving the original audio cassette and transcript thereof required, it can be done only during the evidence of the defendant -- Further the Court is not powerless to summon any witness at the instance of the defendants to prove certain facts -- Defendant is allowed to summon and produce the original audio cassette, file the transcript thereof and then ask the wife to give the voice samples before the Court for the purpose of comparison -- However, it will always be at the option of the wife and the said witnesses whether they are willing to give the sample or not.

(Para 8,9)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim Maintenance – Final order of Maintenance – Interpretation of -- Interim maintenance @ Rs.15,000/- per month from the date of application – Rs.20,000/- as maintenance awarded from the date of final order -- Principle of merger of interim order into final order would mean that interim relief granted to a party will cease to exist on the day when the final order is passed and that from the date final order is passed, the rights conferred upon a party would be enforceable as per the final order -- It does not mean that the interim order would be nullified on passing of the final order.

(Para 8-13)

B. Interpretation of Judgment of High Court and Supreme Court -- While interpreting the judgment of Supreme Court by a High Court, the facts and circumstances of the case in which the order is passed; have to be carefully scrutinized while following the dictum.

(Para 10)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 24 -- Maintenance to wife -- Award of maintenance is in order to avoid destitution and vagrancy of wife -- Wife has also right to live her life in consonance with the status of the husband, though she is not entitled to make profit out of it so as to live in luxury and impede any future re-conciliation.

(Para 6)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 24 -- Maintenance pendentlite to wife/children -- At the stage of awarding maintenance in terms of Section 24 of the Hindu Marriage Act, some guess work is also required to be done in addition to the evidence -- Evidently, the petitioner has come forward to say that his total earnings are Rs.45,972.42, however deductions to the tune of Rs.6,818.50 – Respondent-wife has nothing to do with the deductions -- There are some other channels of income like immovable property and other vocations of life in which monetary benefit may accrue to the petitioner -- Keeping in view the rising price index of these days and the age of the minor daughter and her studying prospects in good school, amount of Rs.20,000/- towards maintenance pendente lite and Rs.2200/- towards litigation expenses cannot be held to be on higher side -- Even if it is admitted that wife is also earning something that per se does not entitle the petitioner-husband to deny the status of living to the wife as well as minor child by parting only Rs.20,000/- from his total emoluments.

(Para 7-9)

A. Hindu Married Women’s Right to Separate, Maintenance and Residence Act, 1946 -- Right of maintenance of Hindu wife/widow – Charge on husband’s property -- Under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties -- It is equally well settled that the claim of Hindu widow to be maintained is not a mere formality which is to be exercised as a matter of concession, grace or gratis but is a valuable, spiritual and moral right -- From the judicial pronouncement, the right of a widow to be maintained, although does not create a charge on the property of her husband but certainly the widow can enforce her right by moving the Court and for passing a decree for maintenance by creating a charge -- The Act, 1946 was enacted giving statutory recognition of such right -- Right to maintenance is a pre-existing right.

(Para 15, 16)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14 -- Right of maintenance of Hindu wife/widow – Limited right – Vested right -- Will was executed in 1920 in which “S” mentioned that his first wife died, the second wife got two sons and one daughter -- Thereafter, second wife also died, then he married to third wife, who is alive -- Executant of the Will have also mentioned the description of the properties owned by him -- He, very specifically mentioned in the Will that his third wife shall enjoy for life one tiled house situated in the compound wall --  For that enjoyment, it was also mentioned in the Will that the widow shall also be entitled to fetch water from the well situated in the backyard of a different house -- In other words, the executant of the Will made arrangements for his third wife to maintain her enjoyment in the suit schedule property till her life -- Intention of the executant is therefore clear that he gave the suit schedule property to his third wife in order to hold and enjoy the suit property for her maintenance during her lifetime – No one disputed the arrangement made in the Will and she continued to enjoy the said property in lieu of maintenance -- By virtue of Section 14(1) of the Act, her limited right became absolute right to the suit property -- Trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute.

(Para 21-33)

C. Hindu Succession Act, 1956 (30 of 1956), Section 14 -- Right of maintenance of Hindu wife/widow – Limited right – Vested right -- Though no specific word has been mentioned in Will that in lieu of maintenance life interest has been created in favour of widow, in whatever form a limited interest is created in her favour who was having a pre-existing right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act.

(Para 34)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 – Maintenance to wife -- Wife deserves to be granted maintenance from the date of application, as she has resigned from Company where she was working – While taking into consideration the annual income of the husband, which was at Rs.13,63,280/-, the maintenance of Rs.15,000/- p.m. is certainly not on higher side -- Maintenance granted to wife from the date of filing of application.

(Para 15)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance -- Wife is entitled to lead a life in the similar manner as she would have lived in the house of her husband -- As long as wife is held entitled to maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate and she can not be compelled to live like a destitute or a beggar.

(Para 30)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance -- Unable to maintain – Meaning of -- In sub-section (c) of Section 125(1) there is intrinsic aid or evidence available for construing the expression "unable to maintain" -- If by this expression the legislature intended that every able bodied person who is otherwise able to earn, is not entitled to claim maintenance allowance u/s 125, then in sub-section (c) it was not necessary for the legislature to say in express terms that the child who has attained majority will be entitled to get maintenance only if by reason of any physical or mental abnormality or injury such a child is unable to maintain itself -- This provision throws light on the intention of legislature -- If the provision of sub-section (1)(a) is read in this context then, it is quite clear that while construing the expression "unable to maintain" the concept of able bodied person's ability to earn cannot be imported -- Expression "unable to maintain herself" connotes the situation wherein it is not possible for the wife to maintain herself from any other source, meaning thereby wherein it is demonstrated that but for the maintenance allowance claimed from her husband, she has no other source or means of maintenance.

(Para 32)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance – Object of provision of Section 125 -- Provisions contained in the Cr.P.C were introduced with an intention to fulfill a social purpose -- Its object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children -- By providing a simple, speedy but limited relief, it seeks to ensure that the neglected wife and children are not left beggared and destituted and thereby driven to a life of vagrancy.

(Para 34)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Maintenance declined to wife -- Earning wife – Aged parents of husband – Duty of the Magistrate is 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 – Needs and requirements of the wife for such living 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 -- Wife is income-tax payee, she is maintaining a car, she is earning for herself and is highly educated – Considering the income of the wife and taking into account that there are other liabilities on the husband i.e. his aged parents and no other liability on the wife, it can be said that the income she is earning is sufficient for her maintenance -- It can not be said that she was unable to maintain herself -- Court below failed to record a specific finding in this regard -- There is no finding that the income she was earning was insufficient for herself -- Order awarding maintenance to the wife is set aside.

(Para 33-36)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife/child -- Petitioners have failed to establish the income of the respondent, as projected in the application u/s 125 Cr.PC before learned Family Court -- Family Court in its wisdom has assessed the income of the husband at Rs.12,000/- per month and accordingly, awarded maintenance to the petitioners @ Rs.4,000/- per month i.e. Rs.2500/- per month to wife and Rs.1500/- to child, which seems to be reasonable in the light of status of the parties.

(Para 7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Object of provision of 125 Cr.P.c. -- Interim maintenance -- Maintenance includes entitlement to food, clothing and shelter to the wife, children and parents – It is provided as a measure of social justice and natural duty of a husband to maintain his wife and children when they are unable to maintain themselves -- Object behind this provision is to prevent vagrancy by compelling the husband to pay maintenance to the wife and children who are unable to support themselves -- Although, there is no specific provision in the Code with regard to interim maintenance, however, the Hon'ble Apex Court and various High Courts in catena of judgments have held that since finalization of maintenance petition takes time, interim maintenance can be awarded by the Court as an interim measure.

(Para 6)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance -- Trial Court fixed the case eight times for consideration on the application for interim maintenance, but counsel for the husband did not turn up, rather the Court was compelled to pass the order in his absentia – It is the bounden duty of the petitioner-husband, who is an able-bodied man, capable of earning and has sufficient means, to maintain his wife and children -- Once the wife has made a specific averment with regard to capacity of the husband, then onus shifts upon the husband to prove that he does not have sufficient means to provide maintenance – Husband has not brought on record income tax returns and has not rebutted the averments and this is a case of bare denial – Estranged wife and minor child cannot be reduced to destitute before deciding a main petition seeking maintenance for herself and her child – As an interim measure, interim maintenance has been awarded and if the Court comes to the finding that income of the husband was lesser, the same can be adjusted towards final maintenance that may be awarded.

(Para 9, 10)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 – Interim maintenance to wife – Rent for alternate accommodation to wife -- Salary of husband is proved to be Rs.30,963/- p.m. and income from other sources is not being added to this, the grant of Rs.10,000/- towards interim maintenance and Rs.5,000/- as rent for alternate accommodation cannot be held to be on higher side.

(Para 18,19)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Divorced Muslim woman -- Applicability of Section 125 Cr.P.C. -- Section 125 Cr.P.C is applicable to divorced Muslim woman.

(Para 10)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance application – Speedy remedy -- Application for grant of maintenance was filed in the year 1998, it was not decided till 17.2.2012 -- There was no order for grant of interim maintenance – Held, delay in disposal of the application is an unacceptable situation, it is, in fact, a distressing phenomenon -- An application for grant of maintenance has to be disposed of at the earliest.

(Para 12)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife by Family court – Interference by Revisional Court – Scope of -- Husband was getting a monthly salary of Rs.17,654/- -- High Court, without indicating any reason, has reduced the monthly maintenance allowance from Rs.4,000/- to Rs.2,000/- -- In today’s world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs.2,000/- per month – Order of Family court is based on proper appreciation of evidence on record -- No revisional court should have interfered with the reason on the base that it would have arrived at a different or another conclusion -- When substantial justice has been done, there was no reason to interfere -- There may be a shelter over her head in the parental house, but other real expenses cannot be ignored -- Solely because the husband had retired, there was no justification to reduce the maintenance by 50% -- It is not a huge fortune that was showered on the wife that it deserved reduction -- Order not sustainable.

 (Para 15, 19)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 –Maintenance to wife u/s 125 Cr.P.C. – Object of -- Inherent and fundamental principle behind Section 125 Cr.P.C is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home -- Statute commands there has to be some acceptable arrangements so that she can sustain herself -- Principle of sustenance gets more heightened when the children are with her -- Sustenance does not mean and can never allow to mean a mere survival -- She is entitled to lead a life in the similar manner as she would have lived in the house of her husband – She cannot be compelled to become a destitute or a beggar -- An order u/s 125 Cr.P.C can be passed if a person despite having sufficient means neglects or refuses to maintain the wife.

 (Para 15)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 –Maintenance to wife u/s 125 Cr.P.C. -- Husband not earning – Plea of -- These are only bald excuses and, in fact, they have no acceptability in law – Husband cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning -- If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 Cr.P.C, unless disqualified, is an absolute right.

(Para 15, 16)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 --  Maintenance to wife u/s 125 Cr.P.C. – Object of -- Husband is on a higher pedestal when the question of maintenance of wife and children arises -- When the woman leaves the matrimonial home, the situation is quite different -- She is deprived of many a comfort -- At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort -- That is the only soothing legal balm, for she cannot be allowed to resign to destiny -- Therefore, the lawful imposition for grant of maintenance allowance.

(Para 18)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 128, 362 – Maintenance u/s 125 Cr.P.C. – Correction in – Power of -- Maintenance awarded by the J.M.I.C. from the date of filing of the order – Executing court interpreted the order from the date of application – The words “from the date of filing of the order” appearing in the order coupled with a direction to petitioner-husband of giving one month's time to make the payment of all due maintenance amount clearly indicates that intention of the Court was to grant maintenance from the date of filing of the application -- Magistrate has power to correct the same under Section 362 of the Code -- It is only a typographical/clerical error which has been rightly rectified.

(Para 2, 10, 16, 17)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 –Maintenance u/s 125 Cr.P.C. – Object of -- Section 125 of the Code and other provisions under which maintenance can be enforced, are designed to prevent vagrancy and destitution and provides a summary and speedy remedy -- The provisions have been enacted only to save starving children, parents and wives -- The object of these provisions is to secure much needed relief for discarded wives, helpless and deserted children -- The object is not to punish for the past neglect but to prevent vagrancy by compelling those who can do so to support those who are themselves unable to do so and have a moral claim to be supported -- These provisions are not penal but are merely intended to enforce a duty.

(Para 15)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 296, 311 – Application for maintenance – Affidavit tendered in evidence by wife – Application u/s 311 at the stage of arguments -- Certainly, wife being the petitioner in the petition u/s 125 Cr.P.C. was not a formal witness and could not have been examined by way of affidavit – Wife was examined-in-chief by way of affidavit -- At the time of her examination-in-chief, by way of affidavit, there was no objection from the side of the husband -- It was only a suggestion put to her in the cross-examination that her evidence could not be recorded by way of affidavit and she expressed ignorance to that -- Mere fact that wife is an educated lady and a doctor by profession, it is not expected that she is well-conversant with the technical procedure of the Court regarding the evidence -- If due to mistake on the part of her counsel, she was not examined-in-chief as per the provisions of the law, her request to recall and examine herself u/s 311 in support of her petition cannot be declined -- Mere fact that the application was moved by the wife at the stage of arguments is no ground to decline request of the respondent-wife -- Examination of the respondent-wife is essential to the just decision of the case – Application u/s 311 was rightly allowed.

 (Para 11-20)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 354(6) – Maintenance – Final order – Speaking order -- Every final order u/s 125 of the Cr.P.C. must contain points for determination, the decision thereon and the reasons for such decision -- Section 125 and Section 354 (6) must be read together -- It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance -- Court should record reasons in support of the order passed by it, in both eventualities.

(Para 6, 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Maintenance from the date of application – For awarding maintenance from the date of the application, express order is necessary.

(Para 8)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Maintenance from the date of application – High Court has not given any reason for not granting maintenance from the date of the application – Wife had worked before marriage and had not done so during her marriage -- There was no evidence of her income during the period the parties lived as man and wife – Husband shall pay the amount of maintenance from the date of the application for maintenance.

(Para 9)

Hindu Marriage Act, 1955 (25 of 1955), Section 25 -- Permanent alimony – Monthly expenses -- Finding of High Court that wife requires Rs.40,000/- per month to meet expenses, became final – Wife has prayed that having regard to the fluctuating rate of interest on fixed deposits, the amount of Rs.40 lakhs will not constantly fetch an interest of Rs.40,000/- per month, an appropriate order be passed to ensure that she gets a monthly sum of Rs.40,000/- towards her maintenance – Court finds justification in the demand made by the wife – Husband is directed to pay another Rs.15,00,000/- (rupees fifteen lakhs) to the appellant wife towards permanent alimony.

(Para 10-13)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) Section 3(b)(ii), 20, 23(2)(b) -- Family Courts Act, 1984 (66 of 1984), Section 7(f) – Court Fees Act, 1870 (7 of 1870), Section 7 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Marriage expenses/Maintenance claim by daughter – Ad-valorem Court fees – Right to maintenance or the quantification of a reasonable amount to defray marriage expenses by the applicant can only be a rough estimate of expenses likely to be incurred as an incidence of marriage -- Claim cannot be predicted or predicated with any reasonable certainty -- It is not possible to estimate at the money value of the subject matter of the dispute before the declaration of rights inter se the parties is granted or denied by the court -- Therefore, the applicant cannot on first principles be called upon to affix ad valorem court-fee on the petition instituted under the special Act on the claimed amount of Rs. 50 lacs and was liable to affix only a fixed court fees and when paid would suffice to maintain the suit or application before the Family Court -- Nothing wrong in the trial court declining the application under Order 7 Rule 11 CPC.

(Para 9-15)

A. Indian Evidence Act, 1872 (1 of 1872), Section 112 – Legitimacy of child – Presumption of -- DNA Test – DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl-child – Condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded – Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable -- While the truth or fact is known, there is no need or room for any presumption -- Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof -- Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue –When there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

(Para 16)

B. Indian Evidence Act, 1872 (1 of 1872), Section 112 – Legitimacy of child – Presumption of -- Distinction between a legal fiction and the presumption of a fact -- Legal fiction assumes existence of a fact which may not really exist -- However presumption of a fact depends on satisfaction of certain circumstances -- Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

(Para 18)

C. Indian Evidence Act, 1872 (1 of 1872), Section 112 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to child -- Legitimacy of child – Presumption of – DNA Test – Value of -- Husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report – Court cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary – Innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports Court cannot forestall the consequence -- “Truth must triumph” is the hallmark of justice.

(Para 1, 19, 21)

A. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 23 -- Object and reason of the Act – Literal interpretation – Provisions of the Maintenance Act have to be interpreted in the light of the object and reasons – Provisions are to be construed on literal interpretation, besides taking into consideration the intention of the Legislation.

(Para 12,13)

B. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 23 -- Ejectment of premises -- Maintenance Act is not restricted to only providing maintenance but cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives -- One of the major aims was to provide for the institutionalization of a suitable mechanism for the protection of ‘life and property of older persons’ – An order of ejectment can be passed by the Tribunal in favour of a senior citizen.

(Para 17)

C. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 23 – ‘Transfer’ -- ‘otherwise’ – Meaning of -- Property transferred by gift or otherwise would include the transfer of the possession of a property or part of it by a senior citizen -- The word “otherwise” used under Section 23 (1) of the Maintenance Act by the legislation would include transfer of ownership, transfer of possession by way of a lease deed, mortgage, gift or sale deed – Even a transfer of possession to a licencee by a senior citizen will also fall under the ambit of Section 23 (1) of the Maintenance Act -- The word “otherwise” cannot be ignored for the objective of Section 23 (1) of the Maintenance Act -- In context to the objectives of the Act, “transfer” would mean that transfer of property by senior citizen need not be a gift only but it could be any transfer within the meaning of Transfer of Property Act or would even include transferring of any right of the nature of title or possession.

(Para 20)

D. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 23 – Transfer of property – Non-providing of amenities and physical needs to senior citizen -- If the transfer is subject to a condition that transferee shall provide basic amenities and basic physical needs to the transferor and transferee refused to do so, the transfer of property shall be deemed to have been made by fraud, coercion or undue influence and would be declared so by the Maintenance Tribunal on the option of transferor -- A senior citizen who had transferred his right, title or interest to any other person by gift or otherwise (which would include transfer of possession by lease, mortgage or licence) would become void in the event of transferee refusing to provide amenities and physical needs -- The said transfer in such circumstances would be termed as fraud and would be void.

(Para 20)

E. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 23 – Fraud -- Word “fraud” used in the Maintenance Act has to be understood in context to its meaning given by different Courts at different times :

(i)    An act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. “fraud” vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.  S.P. Chengalvaraya Naidu Vs. Jagannath, AIR 1994 SC 853

(ii)   fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata. Ram Chandra Singh Vs. Savitri Devi and others, (2003) 8 SCC 319.

(Para 21,22)

F. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 23 – Transfer of property – Non-providing of amenities and physical needs to senior citizen -- Possession of property has been handed over to the petitioners with an implied latent promise that the petitioners transferee would at least vouch for the welfare of the transferor – Petitioners/transferee have apparently failed to provide for the amenities, physical needs or even care for the welfare of respondent No.5 giving a cause of action to respondent No.5 to seek the protection of Section 23 (1) of the Maintenance Act and get the transfer by way of possession declared void bringing the act of the petitioners under the definition of fraud -- In view of the law that fraud vitiates all proceedings and vests no right in anybody, respondent No.5 would be entitled to enforce his legal right to declare the transfer i.e. transfer of possession which falls under the definition of ‘otherwise’ under Section 23 (1) of the Maintenance Act, void.

(Para 23)

G. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 16 – Haryana Maintenance of Parents and Senior Citizens Rules,  2009, Rule 17 – Appeal by transferee – Maintainability of -- Appeal is not maintainable under Section 16 (1) of the Maintenance Act on behalf of the transferee, as it is only a senior citizen or a parent who has been given authority to file appeal, in case any adverse order is passed by the Tribunal against him.

(Para 26)

H. Maintenance and Welfare of Parents and Senior Citizens  Act, 2007 (56 of 2007), Section 7 – Allegation of biasness against the member of Tribunal – Principle of estopple -- Contention that one of the members of the Tribunal had bias against the petitioners being an attesting witness to the Will of respondent No.5 – Held, it transpires that the said plea had not been taken before the Tribunal -- Once the petitioners had surrendered to the jurisdiction of the Tribunal, they cannot later on raise a plea regarding the competence of the Tribunal -- The said plea of bias is barred by the principle of estoppel.

(Para 27)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 -- Domestic violence case -- Limitation -- In case of decree of divorce, the limitation to file proceedings is only one year -- In case of subsisting relationship of husband and wife, there is no limitation -- Complaint under the D.V. Act can be filed at any time as the physical and mental harassment within the family is a continuing offence.

(Para 6)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Section 498A -- FIR u/s 498A IPC – Maintainability of complaint under DV act -- Whether complaint under D.V. Act, is maintainable where a case under Section 498-A of the Indian Penal Code is already pending? -- Both the cases are of different nature and have no bearing upon each other -- However, a Magistrate in proceedings under the D.V. Act, can also add Section 498-A IPC in order to inflict punishment upon the offender -- Held, both proceedings are of different nature and can be filed separately -- Proceedings under the D.V Act can continue on the same set of facts of a case under Section 406, 498-A IPC.

(Para 8, 9)

A. Hindu Succession Act, 1956 (30 of 1956), Section 14(2), 30 – Property of Hindu Female – Absolute right -- A female is entitled to claim absolute right, if she has a pre-existing right or the property is held by her in lieu of maintenance or arrears of maintenance or acquired by inheritance, under a partition or any gift from any person before or after her marriage or acquired such property by her own skill or exertion or purchased or by prescription -- Where a female acquires a property by way of a gift or under a Will or any other instrument or the decree or award conferring a restricted estate, in such property she cannot claim any expansive right therein.

(Para 8)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14(2), 30 – Will – Limited property rights to wife -- Executor of Will gave limited interest in the property to second wife during her life time and it devolves upon his sons of first wife after her death and in the event the sons pre-deceased her, property goes to children of his son -- Intention of the testator is clear to convey/bequeath the property ultimately to the son/ or/and his children and under no situation any right was conferred over the property as an absolute owner upon second wife – Children from second wife acquire no rights on death of their mother.

(Para 8-10)

Hindu Marriage Act, 1955 (25 of 1955), Section 5,9,10,11,12,13 -- Bigamous marriage – Void declaration – Maintenance pendentlite – Permanent alimony -- Held, when the legislature has used such wide expression as ‘at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights u/s Section 9, judicial separation u/s 10, declaring marriage as null and void u/s 11, annulment of marriage as voidable u/s 12 and Divorce u/s 13 -- Keeping into consideration the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent.

(Para 13)