Code of Criminal Procedure, 1973 (2 of 1974), Section 125(4) – Maintenance u/s 125 Cr.P.C. – Wife living in adultery – DNA of son not matched – Right of -- Maintenance declined primarily on the score that petitioner No.1/wife was living in adultery and petitioner No.3/son has not been born out of the cohabitation of petitioner No.1 and the respondent -- It is evident that the DNA profile of son of petitioner No.1 had not matched with the DNA profile of the respondent – Held, in such circumstances, no error can be found with regard to the observations of the Court below that petitioner No.3 has not been born from the cohabitation of petitioner No.1 and respondent and furthermore, petitioner No.1 was living in adultery – No illegality or irregularity in the impugned order declining the claim of maintenance which may warrant any interference – Revision dismissed.

(Para 8-15)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 17, 18, 19, 20 21, 22 – Limitation under DV Act -- Argument raised that the petition filed under the DV Act is barred by limitation, the same is not sustainable in view of the judgments that there is no limitation prescribed under the DV Act to institute claim seeking relief under Sections 17 to 22 of the DV Act.

(Para 5)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(f), 2Q), 2(s) – Aggrieved person -- Domestic relationship – Respondent -- Shared household – Under the provisions of this Act, the right to claim protection against a person on account of domestic violence is not limited to a wife only -- Definition of an ‘aggrieved person’ may be read in this context wherein an aggrieved person has been defined to mean any women, who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent -- Going further, the term ‘domestic relationship’ too has been defined, which means a relationship between two persons, who live or have, at any point of time, lived together in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage etc.

(Para 7)

C. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(f), 2Q), 2(s), 12, 14, 17, 18, 19, 20, 22 -- Maintenance under DV Act -- Domestic relationship – Shared household – Void marriage – Ground of -- Argument that the complainant is not a legally wedded wife, as on the date of marriage she was not divorced from her husband has no merit -- Held, under the provisions of this Act, the right to claim protection against a person on account of domestic violence is not limited to a wife only -- There is no dispute that the petitioner was in a relationship as he married the complainant -- Question whether the marriage would be void or not is a matter of trial -- Courts below while granting interim maintenance to the tune of Rs.25,000/- per month qualified that the maintenance is subject to set off/adjustments of interim maintenance received by the respondent-complainant in the application under Section 24 of the Hindu Marriage Act – No ground is made out to interfere with the orders passed by the courts below and the same are upheld.

(Para 6-9)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 18, 20 -- Domestic violence – Prima facie case -- Summoning of -- Section 18 of the 2005 Act stipulates for a protection order in favour of a woman -- Section 20 of the 2005 Act deals with the monetary relief to the aggrieved party and the same can be granted by a Court -- Before issuing notice, the learned Magistrate has to be prima facie satisfied that there have been instances of a domestic violence.

(Para 22)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 18, 20 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Quashing of summoning order -- Abuse of process of law – Petitioners, mother-in-law aged 65 years is 40% disabled from eyes, and is suffering from old age ailments, father-in-law, aged 73 years, is a chronic kidney patient and has been on dialysis thrice a week and married sister-in-law is a Government Teacher and since her marriage in 2009, she has been residing in her matrimonial home and looking after her two minor children -- A pure matrimonial dispute between husband and wife, has been given a colour of the proceedings under the 2005 Act so as to rope in hapless parents-in-law and a married sister-in-law -- They have been roped in with an oblique motive to harass and mentally torture them -- Moreover, the allegations leveled in the complaint are vague, general and omnibus in nature -- Proceedings qua the petitioners, are nothing, but a clear abuse of process of law -- Summoning order and all consequential proceedings arising therefrom, are quashed, qua the petitioners.

(Para 33-36)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127 –Maintenance enhancement from Rs.5,000/- to Rs.9,000/- per month – Challenge to – Petitioner/ husband is getting pension of Rs.50,000/- per month -- Considering age of wife (67 years), the old age pension of Rs.2,000/- per month would not be enough even to meet her medical expenses -- Considering the pension petitioner is getting, maintenance of Rs. 9,000/- per month given to the wife cannot be concluded to be on higher side – Revision dismissed.

(Para 2, 7-10)

Hindu Marriage Act, 1955 (25 of 1955), Section 24 – Maintenance pendente lite – Right after second marriage by wife -- Only a legally wedded wife would be entitled to the maintenance pendente lite -- Applicant-wife has not been able to specifically contradict the factum of second marriage, she has lost her valuable right of maintenance pendente lite – Application dismissed.

(Para 8)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), 2(s), 12, 17 -- Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section  3, 4, 23 -- Shared household – Right of Daughter-in-law – Right of Senior Citizen – Jurisdiction of Senior Citizen Tribunal -- Claim of the appellant (daughter-in-law) that the premises constitute a shared household within the meaning of the PWDV Act 2005 would have to be determined by the appropriate forum – Held, claim cannot simply be obviated by evicting the appellant (daughter-in-law) in exercise of the summary powers entrusted by the Senior Citizens Act 2007.

(Para 1, 24)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 9 -- Shifting of Tribunal – Non-appearance of respondent – Ex-parte proceedings -- Petitioner had appeared before Sub-Divisional Officer, Ambala Cantt. and, thereafter had not bothered to put in appearance when the proceedings were transferred to the Tribunal at Ambala City -- Neither it has been mentioned as to how he was not aware of the matter being transferred to the Tribunal at Ambala City or there was any hitch or disability the petitioner suffered and that he was not aware of the proceedings pending at Ambala Cantt – No sufficient case made out for not appearing before the Tribunal to defend the proceedings – Order affirmed.

(Para 8-10, 14)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 2(g), 9 – Maintenance against nephew – Maintainability of -- Once the petitioner is in possession of the property and liable to inherit the property after the death of the senior citizen, the section provides that maintenance can be claimed by a childless senior citizen as per Clause (g) of Section 2 -- Argument that the application was not maintainable in the absence of any relationship, is not made out.

(Para 3, 11, 12)

C. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), section 2(g), 9 -- Maintenance against nephew – Petitioner/Nephew  is earning from the business of the shop in which the father of the respondent No.3/Senior citizen was working -- By keeping the Senior citizen out of the said shop, he is also debarring the said respondent from earning and getting the fruits from the said shop, wherein his father was a tenant – Petitioner would come under the purview of Section 2 (g) of the 2007 Act and liability to maintain the Senior citizen would fall upon him.

(Para 13)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 340 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 – Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 -- Code of Civil Procedure, 1908 (V of 1908), Order 10 -- Constitution of India, Article 142 -- Maintenance law -- Interim Maintenance -- Supreme Court framed guidelines in exercise of powers under Article 136 read with Article 142 of the Constitution of India :

(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;

(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.

If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings -- On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC;

On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so;

The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.

(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court.

(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.

(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

(k) A professional Marriage Counsellor must be made available in every Family Court.

(Para 49)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance law -- Permanent alimony – Directions given :

(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.

(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.

(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.

(Para 49)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance Law -- Directions given in exercise of powers under Article 142 of the Constitution of India -- Overlapping jurisdiction -- To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, directions given so that there is uniformity in the practice followed by the Family Courts/ District Courts/ Magistrate Courts throughout the country:--

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(Para 63(a))

D. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance Law -- Payment of Interim Maintenance -- Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

(Para 63(b))

E. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Constitution of India, Article 142 -- Maintenance Law -- Criteria for determining the quantum of maintenance -- For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B–III of the judgment -- The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

Part B-III

-- Factors are the Status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

-- The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

-- Financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.

-- A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.

The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

-- Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source.

-- Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

-- The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde³⁷ [³⁷140 (2007) DLT 16.] laid down the following factors to be considered for determining maintenance :

“1. Status of the parties.

2. Reasonable wants of the claimant.

3. he independent income and property of the claimant.

4. The number of persons, the non-applicant has to maintain.

5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant’s liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.

10. The non-applicant to defray the cost of litigation.

11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act. 17.”

-- Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be relevant for determining the quantum of maintenance payable.

-- Age and employment of parties -- In a marriage of long duration, where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.

-- Right to residence -- Section 17 of the D.V. Act grants an aggrieved woman the right to live in the “shared household”. Section 2(s) defines “shared household” to include the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the respondent is a member.

The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja³⁸ [³⁸Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020.] (supra) held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a “shared household”. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly.

Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.

-- Where wife is earning some income -- The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.

Maintenance of minor children -- The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed.

Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.

Serious disability or ill health -- Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.

(Para 49(III), 63(c))

F. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 -- Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Maintenance Law -- Date from which maintenance is to be awarded -- Maintenance in all cases will be awarded from the date of filing the application for maintenance.

(Para 63(d))

G. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 25 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 19, 20, 22, 23 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 128 – Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 2(q), 3, 17, 18, 19, 20, 22, 23, 26, 36 – Special Marriage Act, 1954 (43 of 1954), Section 4, 36, 37 -- Code of Civil Procedure, 1908 (v of 1908), Order 21, Section 51, 55, 58, 60 -- Maintenance Law -- Enforcement / Execution of orders of maintenance -- For enforcement / execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable -- Order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

(Para 63(e))

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Contempt of Courts Act, 1971 (70 of 1971), Section 2(b), 12 -- Non-payment of arrears of enhanced maintenance u/s 125 Cr.P.C – Contempt proceedings -- High Court ordered arrears of enhanced maintenance shall be paid in three equal instalments within six months -- Respondent flouted the order with impunity -- Firstly, the order was not complied by making three equal installments -- Secondly, even Court gave chance to respondent to comply with the order, but the respondent made a self-serving statement in the context of paying of Rs.1.5 lakhs unconditionally without adhering to the payment of arrears of maintenance -- Held, respondent has wilfully and deliberately violated the order and he has no respect for the Court's order -- Respondent convicted for civil contempt u/s 2(b) and sentenced to simple imprisonment for a period of two months with fine of Rs.2,000/-.

(Para 21, 22)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 362 -- Petition u/s 125 Cr.P.C dismissed in default – Restoration application also dismissed – Review or amend – Power of -- Criminal court cannot allow or review its own order except correcting clerical errors in it, it is well settled as there is no provision for review under the Code -- Held, order dismissing the petition for maintenance in default can be recalled or set aside and the case can be restored to its original position for effective adjudication on merits – Impugned order set aside and petition u/s 125 of the Code is ordered to be restored to its original position to be heard on merits.

(Para 2,3,6-11)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 -- Maintenance u/s 125 Cr.P.C. – Maintenance under DV Act – Liability of husband to pay – Both proceedings are independent, however, while fixing the maintenance to the wife, earning capacity of the husband has to be seen as well -- Husband ordered to pay Rs.8,000/- p.m. u/s 125 Cr.P.C. and Rs.8,000/- p.m. under DV act – Held, petitioner-husband is at liberty to pay the said amount either in the terms of the order u/s 125 Cr.P.C. or under the D.V. Act.

(Para 7-14)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12, 19 -- House rent for accommodation – JMIC awarded Rs.5,000/- p.m. towards house rent -- Rs.8,000/- p.m. maintenance out of pension of Rs.23,000 p.m. already awarded -- An additional amount of Rs.5000/- towards rent would mean he is paying a total of Rs.13,000/- out of Rs.23,000, which is more than 50% what he gets -- No doubt, the petitioner being the husband is duty bound to maintain his wife and allow her to live life with dignity according to their social status and strata, but it has to be within his means -- Amount of Rs. 5000/- towards rent is highly excessive – Amount reduced to Rs. 1000/- per month.

(Para 14)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18 -- Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Sections 2(s), 19 -- Residential unit – Shared household -- A married woman is entitled to live, subsequent to her marriage, with rest of her family members on the husband’s side, in case it is a joint-property -- If she resides in an accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit.

(Para 9)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Sections 3(iv), 19 – Economic abuse – Immovable assets -- Alienation of -- Alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act.

(Para 9)

C. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(s) – Matrimonial home – Dis-housing from – Procedure of -- A Magistrate having jurisdiction u/s 19 of the said Act is empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household -- But for a husband to compel his wife to live in a separate household, which is not her matrimonial home, an order from appropriate legal forum would be necessary -- There cannot be forcible dis-housing of a wife from her matrimonial home.

(Para 9)

D. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(s), 19 – Constitution of India, Article 226, 227 -- Matrimonial home – Residence order – Power of -- Wife has been out of her matrimonial home since the year 2000 – Such right cannot be enforced invoking the writ jurisdiction -- Moreover, the original building that constituted her matrimonial home has been demolished -- Large portions of the redeveloped building on the same plot has been parted with -- Now going by its traditional meaning, her matrimonial home at present would be the premises in which her husband is residing -- In this complex perspective, a judicial forum having fact-finding jurisdiction would be the proper forum for adjudicating her claim of this nature.

(Para 11)

A. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of Maintenance – Execution Proceedings -- Power of Civil imprisonment – Court has the discretion to decide against detention in civil imprisonment and order either; the judgment-debtors detention in custody of an Officer of the Court for maximum fifteen days, or release him on furnishing security for appearance on a specified date if the decree is not sooner satisfied -- There exist sufficient safeguards at each stage against the detention of the judgment-debtor, which the Court cannot circumvent.

(Para 15, 16)

B. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of maintenance – Execution of – Service upon parties – Presumptive service – Process of law -- Legal fictions cannot be created extensively to infringe on the liberty of a citizen and then pack him off to prison based on a presumption of service without following the due process of the law.

(Para 20)

C. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of maintenance – Execution of – Family Court acting under the Hindu Marriage Act is not exercising the powers of the Magistrate u/s 125 (3) of Cr.P.C., who can order imprisonment for a month in default of payment of maintenance determined under that provision on failure of a warrant of arrest for levying the amount due, which presupposes due service of the order in the proceeding.

(Para 20)

D. Family Courts Act, 1984 (66 of 1984), Section 3 -- Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 37, Section 51 – Hindu Marriage Act, 1955 (25 of 1955), Section 24, 26 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Recovery of maintenance – Execution of -- Default imprisonment -- Question of putting the defaulter in prison, to be sent in the proverbial hand-cuffs, does not arise in the proceedings in enforcement of arrears of maintenance by the ex-wife -- It is unheard of to straightaway issue a warrant of imprisonment without first enforcing attendance -- Family Court must avoid an identity crisis sitting as Family Court (Civil) and Magistrate (Criminal) and alternating between the two different jurisdictions from the same dais to achieve different results -- Judge appears to have mixed up the two elements by a concoction and that too by following an illegal procedure in terrorem with an inherent defect to start with resulting from non-service of notice upon the husband – Order set aside.

(Para 20, 48, 51)

E. ratio decidendi -- Precedent – Conclusion of case – Reliance upon -- Question is how to read judgments for the law and principle/s laid down therein in the context of key facts and relevant circumstances of a case decided and how they are treated by the Judge and what it means to apply its ratio decidendi [the reason for the legal decision] as a precedent in another case, while distinguishing its obiter dictum and non-essential facts recorded in the narration of facts upon which the ratio may not be based.

-- The head-note made by a reporter in a law journal of reported cases indicates only the broad outlines of the case or the type it falls in and is the last thing to rely on in a judgment or order.

-- Determining the true ratio of a case is not as simple as identifying the reason for the decision in a complex case. There are cases without ratio but with conclusions. A conclusion does not constitute precedent.

(Para 43)

F. Reliance on judgments -- Tendency of placing blind reliance on judgments should not be the judicial reflex, as they have to be applied carefully to the fact situation from case to case since only the ratio binds and one different material point or relevant fact can alter the entire aspect.

(Para 47)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Maintenance to wife – Wife running play-way school – Non-production of Pan card and Bank account details by wife – Effect of -- Held, once the respondent-husband had taken a specific plea that the petitioner-wife was running a play-way school and coupled with her own admission that she is maintaining a bank account and had a PAN card, the petitioner should have adduced evidence to substantiate that she had no source of income -- Family Court rightly came to the conclusion that the petitioner had not approached the court with clean hands and is not entitled to any maintenance.

(Para 14)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(s) – Constitution of India, Article 141 -- Shared household -- Self-acquired property of parents-in-law – Right of -- Issue is not res integra and stands answered in S.R. Batra and Another’s case, 2007 (3) SCC 169 by the Supreme Court, and held that the wife is only entitled to claim a right to residence in a shared household, which would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member – Judgement passed by the Supreme Court directly on the issue is binding on the Courts under Article 141 of the Constitution of India -- Appeal filed by daughter-in-law dismissed.

(Para 1-10)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 11 – Void marriage – Maintenance – Right of -- It is well settled that a marriage which is null and void is no marriage in the eye of law -- Where the marriage is a nullity application for maintenance is liable to be set aside on that ground alone.

(Para 26)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 11, 13, 15 – Void marriage -- Divorce decree -- Marriage during pendency of appeal – Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.

(Para 31)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15 – Decree of divorce – Appeal after limitation – Condonation of delay – Right to re-marry -- Section 15 is not at all attracted, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal -- Bar, if any, u/s 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.

(Para 34, 35)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127, 362 – Maintenance u/s 125 Cr.P.C. -- Court not to alter judgment – Applicability of -- Magistrate does not become functus officio after passing an order u/s 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time -- Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. clearly enumerated the circumstances and incidents where Court passing a judgment or final order disposing the case can alter or review the same -- Embargo as contained in Section 362 is, thus, clearly relaxed in proceeding u/s 125 Cr.P.C.

(Para 25, 26)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127, 362 -- Settlement between the parties – Non-honouring of – Maintenance u/s 125 Cr.P.C. -- Court not to alter judgment – Applicability of -- Maintenance rights of wife -- When the appellant-husband did not honour its commitment under settlement, can the wife be left in lurch by not able to press for grant of maintenance on non-compliance by the appellant of the terms of settlement -- The answer is obviously ‘No’ -- Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted -- Held, order passed by Family Court reviving the maintenance application of the wife u/s 125 Cr.P.C. by setting aside order passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. -- Family Court has done substantial justice in reviving the maintenance application of the wife.

(Para 29-32)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Permanent alimony u/s 25 of HM Act – Maintenance u/s 125 Cr.P.C. – Power of -- Whether after grant of permanent alimony u/s 25 of the Act, a prayer can be made before the Magistrate u/s 125 of the Code for maintenance over and above what has been granted by the Court while exercising power u/s 25 of the Act.

--    Section 25(1) of the Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court.

--      At the stage of passing a decree for dissolution of marriage, the Court thus considers not only the earning capacity of the respective parties, the status of the parties as well as various other issues. The determination so made by the Court has an element of permanency involved in the matter.

--       However, the Parliament has designedly kept a window open in the form of sub-sections (2) and (3) in that, in case there be any change in circumstances, the aggrieved party can approach the Court under sub-section (2) or (3) and ask for variation/ modification.

--     Since the basic order was passed by the concerned Court u/s 25(1), by very nature, the order of modification/variation can also be passed by the concerned Court exercising power u/s 25(2) or 25(3) of the Act.

Held, since the Parliament has empowered the Court u/s 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance -- Application preferred u/s 125 of the Code shall be treated and considered as one preferred u/s 25(2) of the Act.

(Para 10-17)

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 2(e), 22, 32(f) -- Constitution of India, Article 14, 300A -- Punjab Maintenance and Welfare of Parents and Senior Citizens Rules, 2012, Rule 23 -- Punjab Action Plan, 2014, Clause 1,2,3 – Haryana Maintenance of Parents and Senior Citizens Rules, 2009, Rule 24 – Haryana Action Plan, 2015 (1)(2)(3) -- Eviction from property/residential building of Senior Citizen/parent – Held, Maintenance Tribunal is not an Eviction Tribunal -- Clauses 1 to 3 of The Punjab Action Plan, 2014 are ultra vires the provisions of Act, 2007 and Rules, 2012 and are accordingly struck down as unconstitutional – Action Plan arbitrarily introduces a concept foreign to the scheme in MWPSC Act, that is, “eviction” or ejectment and is therefore, declared arbitrary, unreasonable, oppressive, harsh and unconstitutional and contrary to the doctrine of the Rule of Law and Separation of Powers as the basic features of the Constitution of India and thus violate oppressively Articles 14 and 300A against those who possess tangible and intangible rights that can be determined only by the civil court -- This principle would also apply to the Haryana Action Plan, 2015 as it is a mirror image of the Punjab Action Plan, 2014 and suffers from the same infirmities.

(Para 117)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 20 – Interim ex-parte maintenance – Setting aside of -- Categoric statement that petitioners were not made aware of the proceedings in the appeal regarding direction to appear before Trial Court -- Petitioners have cleared all arrears of interim maintenance and Counsel’s statement at Bar that petitioners would continue to make the said payment of interim maintenance by 7th of every month – Held, person should not made to suffer on account of lapse that might have occurred on the part of his counsel – By setting aside the impugned ex-parte order, no prejudice would be caused to the respondent-wife except some delay, for which she compensated by payment of costs of Rs.15,000/- -- Revision allowed.

(Para 6)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 18, 19, 24 -- Domestic violence before coming into force of DV Act -- Divorce between parties – Maintainability of petition under DV Act -- Protection order as per section 18 of the Act, maintenance and compensation order, accommodation/Residence order u/s 19 of the Act passed alternatively monthly rental charges allowed by Ld. JMIC affirmed by Appellate Court – Held, even if petitioner has taken divorce from the respondent-wife, still the petitioner is amenable to the jurisdiction of DV Act -- Even if the domestic violence met by the complainant before coming into force the DV Act, still she can maintain the petition under the DV Act -- Impugned judgments passed by ld. JMIC as well as Additional Sessions Judge, affirmed.

(Para 1,8-11)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 – Widow and her son – Shared house of her husband along with the petitioners (parents and brother) as well as his grandparents -- Accommodation right -- Respondent being a widow can definitely enforce her claim to the residence where she along with her husband resided before his death -- Widowed daughter-in-law does not have any means to look-after herself and her child -- Parents-in-law and brother-in-law cannot escape from their moral and legal duty to let her and her child reside in the said house in question – Accommodation right granted by Trial Court and Appellate Court, affirmed.

(Para 3, 5, 7, 8)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 20 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Petition u/s 20 of DV Act – Maintenance awarded u/s 125 Cr.P.C. – Jurisdiction of -- Once the learned Magistrate declined to grant maintenance for reasons specified, it was not open for him to assume jurisdiction in a proceeding u/s 125 of the Cr.P.C. which was not pending before him -- Order is without jurisdiction and therefore wholly unjustified and unsustainable.

(Para 6)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce on the ground of desertion by wife – Maintenance u/s 125 Cr.P.C. – Right of -- Husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce on the ground of desertion by wife – Earlier maintenance not claimed – Effect of -- Mere fact that the wife did not file a petition for grant of maintenance during the pendency of the matrimonial proceedings, is no ground to hold that she is not entitled to file such a petition later on.

(Para 10)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance u/s 125 Cr.P.C. -- Earning wife – Proof of – Issue raised was that Wife being a qualified architect from a reputed university would be presumed to have sufficient income -- No evidence has been led to show what is the income of the wife or where the wife is working -- It was for the husband to lead such evidence -- In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.

(Para 11)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 401 – Ex-parte maintenance – Execution of -- Stay of -- Maintenance @ Rs.10,000/- p.m. each to wife and son – Application for setting aside rejected – In criminal revision High Court passed the order “Trial Court record be requisitioned. List on 25th November, 2019. in the meantime, execution proceedings be kept in abeyance.” – Held, this order shows total non-application of mind on the part of the High court -- High Court without recording any reason whatsoever, has stayed the grant of maintenance both to the wife and to the minor son -- This should not be done -- A husband/father is duty bound to maintain his wife and child -- Unless there are very special reasons, the higher Court should not normally stay such an order – Supreme Court set aside the impugned order.

(Para 2-4)

Hindu Marriage Act, 1955 (25 of 1955), Section 11, 25 -- Null and Void marriage – Permanent alimony – Right of wife -- Wife would be entitled to permanent alimony u/s 25 of the Act dehors the fact that the decree has been passed u/s 11 of the Act.

(Para 20)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(f), 2(q), 2(s), 12 – Shared household – Domestic relationship -- Interim maintenance – Husband/Father died -- Liability of brother of Husband/Father -- Prima facie case -- Complaint prima facie indicates that the case of the complainants is that the house where the first respondent and her deceased spouse resided, belong to a joint family -- Appellant and his deceased brother carried on a joint business -- Appellant resided in the same household -- Ultimately, whether the requirements of Section 2(f); Section 2(q); and Section 2(s) are fulfilled is a matter of evidence which will be adjudicated upon at the trial -- At this stage, for the purpose of an interim order for maintenance, there was material which justifies the issuance of a direction in regard to the payment of maintenance.

(Para 16)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia)(iii) – Custody of child – Study of child – Son aged 10 year is not willing to study in School at Delhi attached with the Boarding House – He wanted to study on old School at Shahjanpur – Held, Child cannot be compelled to study at Delhi – In the interest and welfare of child, he shall be allowed to continue his study at Shahjanpur, where mother reside.

(Para 3-7, 14)

B. Maintenance to wife – One Forum -- High Court directed the appellant-wife to elect one forum from which she wants to get the maintenance -- As the same is not in conformity with the law, the said direction is liable to be set aside.

 (Para 14)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia)(iii) – Custody of child – Visitation right to father – Father is entitled to visitation rights – Permission given to husband to visit his child and he is entitled to take the child from the House of the appellant on any Sunday’s and public holiday’s whenever he visits Shahjanpur -- Appellant-wife shall allow the child to leave along with the respondent-father at 09:00 a.m., and the respondent-husband to return the child at the house of the appellant-wife before 06:00 p.m. on the same day.

(Para 15)

A. Mutation – Nature of -- Mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title -- It only enables the person in whose favour mutation has been ordered, to pay the land revenue.

(Para 14)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14(1) – Absolute right of women – Mere possession as maintenance – Effect of -- Property gifted by owner to his second wife for her maintenance in 1950 -- Second wife continued to have rights over property only during life time of her husband – On his death, the land in dispute would devolve upon his heirs as per their entitlement and after the registered will has been upheld by the High Court and attained finality, its consequence was to follow accordingly -- Appellant (Daughter of second wife) although was holding possession but not under any of the devise referred to under explanation to Section 14(1) of the Act, 1956 and mere possession would not confer pre-existing right of possession over the subject property to claim full ownership rights after the Act, 1956 came into force by operation of law.

(Para 2,14-20)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- High Court awarded Rs.9,000/- maintenance per month -- Maintenance on the basis of notional minimum income as per the current minimum wages, is untenable -- Regard must be had to the living standard of the respondent and his family – Respondent is highly qualified and an able-bodied person; his monthly income while working in Canada in the year 2010 was over Rs.1,77,364/- -- Supreme Court had prima facie found in earlier appeal that the cause of justice would be subserved if the appellant is granted an interim maintenance of Rs.20,000/- p.m. commencing from November 1, 2014 – Keeping in mind the spiralling inflation rate and high cost of living index today, respondent shall pay a sum of Rs.20,000/- p.m. to the appellant towards the maintenance w.e.f. January 2010 and @ Rs.25,000/- p.m. w.e.f 1st June, 2018 until further orders.

(Para 2,13-15)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 3 – Domestic violance – ‘Domestic violence' is not limited to, physical abuse or the limited scope of cruelty under Section 498-A IPC, but has been expanded to also include sexual abuse, verbal and emotional abuse as well as economic abuse.

(Para 11)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 20 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127 -- Hindu Marriage Act, 1955 (25 of 1955), Section 24 -- Maintenance under D.V. Act – Wife already getting maintenance u/s 125 Cr.P.C. – Effect of -- Wife would be entitled to claim maintenance u/s 20 of the Domestic Violence Act, even though she is already getting maintenance u/s 125 of the Cr.P.C. -- However, the courts, while deciding quantum of maintenance have to take into account the maintenance being awarded to the aggrieved person under other provisions of law, be it under Section 125 Code of Criminal Procedure, Section 24 of the Hindu Marriage Act or any other provisions applicable thereto, while awarding maintenance.

(Para 13)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 24 – Divorce petition -- Maintenance Pendentlite -- ITR of Advocate-husband -- Income Tax Returns may not reflect the true income -- Minimum income of husband cannot be less than Rs.1,00,000/- per month -- Wife is highly qualified, she was previously working in Australia – Order passed by learned Addl. District Judge disallowing any maintenance pendente lite is set aside -- Husband is ordered to pay Rs.25,000/- per month as maintenance pendente lite to the wife from the date of filing of the application until she is shown to have got a job in private/public sector or till the decision of the divorce petition, whichever is earlier.

(Para 3-13)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 1 -- Statement of objects and reasons -- In spite of provisions of maintenance under Section 125 Cr.P.C., it was deemed necessary that there should be simple, inexpensive and speedy provisions to claim maintenance for the parents -- The 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 find out a suitable mechanism for the protection of `life and property of older persons.'

(Para 14)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 2(f), 6 -- Property – Meaning of – Definition of property within the meaning of the Act is wide and comprehensive with the object of securing the interest of the elders -- It is to be read along with Section 6 which makes the provisions of the said Act to have overriding effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act including any instrument having effect under any other Act -- Property means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and even includes rights or interest in such property.

(Para 14,15, 26)

C. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 17(1) – Daughter-in-law – Right of -- Daughter-in-law cannot be said to have a right in the house of father-in-law/mother-in-law who lodged a complaint, where litigation is pending between the parties.

(Para 26)

A. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a “restricted estate” in the property.

(Para 41)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Where property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a “restricted estate” in the property.

(Para 41)

C. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Self acquired house – Life interest to wife by Will – Right of -- Case of wife does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act -- Wife received only “life interest” in the suit house by the Will from her late husband and such “life interest” was neither enlarged nor ripened into an absolute interest in the suit house and remained “life interest”, i.e., “restricted estate” till her death under Section 14(2) of the Act. For the reasons:--

--       First, the testator being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.

--       Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership -- At the same time, he gave only “life interest” to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.

--       Third, such “life interest” was in the nature of “restricted estate” under Section 14(2) of the Act which remained a “restricted estate” till her death and did not ripen into an “absolute interest” under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.

--       Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. Wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.

--       Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.

--       Sixth, it is a settled principle of law that the “life interest” means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the “life interest” only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her “life interest” in the suit house was extinguished on her death.

(Para 42-50)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance to wife/minor son -- Respondent /wife claims that the petitioner is serving in private company and has been earning Rs.25,000/- per month -- Amount of Rs.7,000/- per month by no stretch of imagination can be said to be on higher side for maintenance of the wife and minor son especially in the present scenario of high rise in the cost of living.

(Para 5)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 – Interim maintenance -- Ex-parte judgment -- Appeal against ex parte judgment was allowed primarily on the ground that there was no proper service of the petitioners but at the same time interim maintenance to the respondents at the rate of Rs.5,000/- p.m. maintained – Held, once the Court of appeal has held that the petitioners have not been duly served, the Court of appeal possibly could not assess any interim maintenance payable to the respondents.

(Para 5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Live-in-relationship -- Maintenance to lady -- Petitioner was a married man and hence was legally not competent to enter into a matrimony -- Court cannot lose sight of the fact that twins were born out of this relationship which would be of some indication that the couple had gone for this relationship to give it some permanence and that can entitle her to claim interim maintenance, based on the evidence added -- Family Court has to determine whether or not the relationship was akin to a marriage or not.

(Para 17-19)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 12 – Hindu Marriage Act, 1955 (25 of 1955), Section 10 -- Judicial separation – Aggrieved person – There is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped – Finding of High Court that the parties having been judicial separated, the wife has ceased to be an “aggrieved person” is wholly unsustainable.

(Para 22)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a), 12 – Hindu Marriage Act, 1955 (25 of 1955), Section 10, 13 -- Judicial separation – Divorce – Stridhan – Claim of – Limitation period to file complaint -- Whether retention of stridhan by the husband or any other family members is a continuing offence or not – Held, as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act -- As the status between the parties is not severed because of the decree of dissolution of marriage, the concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians – In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan -- Application was not barred by limitation.

(Para 31)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 4, 19 – Self acquired property -- Maintenance to daughter-in-law – Liability of -- Suit for mandatory injunction seeking direction against daughter-in-law to vacate the premises – Held, any obligation on the part of in-laws on account of rule or interpretation of law or custom or usage as a part of law before commencement of the Act are no longer valid -- Any liability in respect of maintenance of daughter-in-law on death of son cannot be fastened upon the self-acquired property of the parents-in-law -- Held, daughter-in-law cannot claim right to live in the house of the parents-in-law against their wishes.

(Para 1-3, 26)

B. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 4, 19 – Self acquired property -- Maintenance to daughter-in-law – Liability of -- In statutes like Hindu Adoption and Maintenance Act, the maintenance of wife is the personal obligation of the husband -- Such an obligation cannot be satisfied from the self-acquired property of the parents of the husband – Properties shown exclusively in the name of parents cannot be subject matter of any attachment or enforcement of any right of maintenance of wife against her husband – Held, daughter-in-law cannot claim right to live in the house of the parents-in-law against their wishes.

(Para 26)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 2(a),(f), 12 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Quashing of complaint -- Domestic relationship – Aggrieved person -- Divorced wife – Right of –Use of the word is any woman 'who is' or 'has been' -- Both the expressions are in the present tense -- Legislature has not used the word 'who was' or 'had been' -- This means the domestic relationship has to be in the present and not in the past -- The definition requires that on the date Act come into force, the woman should be in domestic relationship -- Domestic relationship between the aggrieved person and the respondent must be present and alive at the time when the complaint under Domestic Violence Act is filed -- Where the domestic relationship ceases, the provisions under the Domestic Violence Act cannot be invoked -- Present complaint is an abuse of the process of the Court -- Complaint and the proceedings therein are quashed.

(Para 18-30)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Wife deserting husband -- Decree of divorce -- Maintenance to wife – Right of -- Claim of the divorced wife even when she had deserted the husband would be maintainable but not for the period prior to the passing of the decree u/s 13 of the Hindu Marriage Act -- Wife would be entitled to maintenance only from the date of decree of divorce.

(Para 7-9)

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (No. 56 of 2007), Section 4, 5 – Senior citizen’s right to maintenance -- Petitioner-son is getting rent out of the quarters and the shops in question and is having a monthly income of Rs. 18,000-20,000/- from the same – Old age person suffering from heart problem, cannot be left in lurch -- It is the duty of the children to maintain their old age parents – Maintenance of Rs.5,000/- p.m. affirmed.

(Para 3-6)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Maintenance to wife/son -- Income of husband assessed as Rs.25,000/- per month – Rs.5,000/- awarded to wife and Rs.2,500/- p.m. to 1-1/2 year old son – Trial Court had kept the income of 3 years into consideration while taking out the average – Husband-LIC agent is not having a fixed salary, it depends upon the number of policies he is able to sell -- Amount that has been allowed to the wife is found to be sufficient.

(Para 3, 7-12)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 24 – Divorce petition – Maintenance pendente lite -- Mere fact that at one point of time, the wife was earning is no ground to decline the maintenance pendente lite – Similarly, the fact that the wife is capable of earning is also no ground to decline her the maintenance pendente lite -- Maintenance pendente lite can only be denied u/s 24 of the Act, if the wife had sufficient income to maintain herself.

(Para 5)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 24 – Divorce petition – Maintenance pendente lite -- ITR of husband shows that he had gross salary of more than Rs. 6 lacs -- Wife is also entitled to the same standard of living as being enjoyed by the husband – No illegality committed by Ld. Trial Court granting maintenance pendente lite to the wife at the rate of Rs.18,000/- per month from the date of the application.

(Para 6)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce – Cruelty – Non-payment of maintenance -- Whether non-payment of amount of maintenance to the wife during pendency of appeal or during pendency of divorce petition amounts to cruelty or not? -- Husband in his categoric stand submitted that he is not in a position to pay any maintenance pendente lite to the appellant-wife – Leaving the wife in penury by the husband without offering anything to sustain her life, despite the order of the Court amounts to cruelty -- Appeal is allowed, dissolving the marriage by decree of divorce.

(Para 7-10)

Hindu Marriage Act, 1955 (25 of 1955), Section 24 -- Maintenance pendente lite – Maintenance @ Rs. 15000/- per month from the date of application awarded by Ld. Trial Court – Husband has taken the plea that he is unemployed in Germany and is dependent upon social help for livelihood provided by the German Government – Held, husband is residing in Germany i.e. a European Country and it is not expected that he must be without any job -- Even, the persons doing manual labour earn handsome wages in those countries -- So, he must be earning handsome by doing some work in Germany -- No evidence on record to show that wife is earning sufficient income to maintain herself -- It is moral as well as legal duty of the petitioner to maintain the wife – No illegality in the impugned order passed by the learned trial Court.

(Para 5-7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 (3) – Default in payment of maintenance – Imprisonment of one month – Meaning of -- Power to sentence is in respect of the whole or any part, of each month's allowance defaulted and therefore for the default in respect of each month, there can be a sentence of imprisonment upto one month -- A month's imprisonment for every month's default is the maximum penalty under S.125 (3) and not a maximum of a month's imprisonment for the total default.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 (3) – Default in payment of maintenance – Imprisonment of one month – Meaning of -- A month's imprisonment for every default is not the rule and sentencing cannot be mechanical -- Court has to apply its mind, consider the circumstances of each case and then decide about the quantum of punishment, having due regard to the statutory limit of the maximum punishment of one month for each default.

(Para 8)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 (3) – Default in payment of maintenance – Imprisonment of one month – Meaning of – Composite sentence – Power of Court -- Confinement can extend to only one month and if even after the expiry of one month the delinquent husband does not make the payment of maintenance then the wife can approach the Magistrate again for a similar relief but the confinement of the husband must be only for one month -- In one stroke no composite confinement can be directed by the Court. Shahad Khatoon’s case 1999(5) SCC 672 relied.

(Para 9)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 20 -- Interim maintenance – Trial Court awarded interim maintenance to children -- Both are major and earning handsome amount, more so, they have also received a lump-sum amount of Rs. 34,000/- -- Petitioner himself is a pensioner; he is more than 68 years of age and suffering from various ailments -- As such, the order awarding interim maintenance is legally not sustainable.

(Para 1, 8)

Protection of Women from Domestic Violence Act, 2005 (43 of 2005),  Section 12 – Domestic violence -- Interim Maintenance -- Petitioner was married in 2001, her husband had died almost 10 years after marriage -- A perusal of the FIR shows that the petitioner had claimed that after the death of her husband she had left the matrimonial home after 13 days -- No allegations were leveled there that she had been illegally dispossessed -- Petitioner is not in possession of any ration card to show that the petitioner had lived in that house ever and it was the shared house hold at this stage – Petitioner is yet to lead her evidence – Interim maintenance declined.

 (Para 2,12,13)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Indian Evidence Act, 1872 (1 of 1872), Section 112 -- Maintenance to illegitimate child -- DNA test -- Marriage between the parties is not in dispute and moreover, both the parties have resided together in their matrimonial home for a considerable long time and it cannot be doubted in any manner that son was not born out of the matrimonial relationship of both the parties – Even the illegitimate child is also entitled for maintenance -- Application for DNA test dismissed.

(Para 1, 2, 13, 14)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Illegitimate child – Right of maintenance -- As per provisions of Section 125 Cr.P.C, the illegitimate child is also entitled for maintenance.

(Para 13)