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1991 SCC OnLine Guj 10 : (1991) 1 GLH 227 : (1991) 32 (2) GLR 805 : (1992)
1 HLR 19 : (1991) 2 DMC 485 : 1992 Cri LR (Guj) 106

Gujarat High Court

(BEFORE J.N. BHATT, J.)

Vanitaben Naranbhai and Others … Petitioners;

Versus
N.R. Makwana and Another … Respondents.
Special Criminal Application No. 430 of 1990
Decided on January 19, 1991*

Page: 228

The Judgment of the Court was delivered by

J.N. BHATT, J.:— Petitioners herein are the original applicants, who claimed
maintenance by invoking the aide of the provisions of Section 125 of the Criminal
Procedure Code, 1973 (‘Code’ for short, hereinafter) from respondent No. 1
herein/original opponent, by filing a Criminal Miscellaneous Application No. 30 of
1987. Petitioner No. 1 is the wife and petitioners No. 2 and 3 are the minor children of
the opponent. The wife claimed Rs. 400/- for her maintenance and also claimed Rs.
300/- by way of maintenance for each child per month from the opponent.
2. She inter alia contended that her husband is a man of means and doing whole
sale business of kerosene. She further contended that her husband is also owning one
taxi-rickshaw, and also some building. According to her contention, her husband was
earning Rs. 10,000/- to Rs. 12,000/- per month, she was unable to maintain herself
and her two children. She was staying separate. Therefore she claimed maintenance
from the opponent for herself and for her two children by filing application in the Court
of the learned Judicial Magistrate, First Class, at Jamnagar. Opponent/husband
appeared and resisted the claim for maintenance. Allegations made in the application
for maintenance were denied. It was denied that fee was earning Rs. 10,000/- to Rs.
12,000/- a month. The opponent/husband contended that he is a small hawker selling
kerosene. He denied to have possessed or owned any immovable property or vehicle.
3. On assessment of evidence, the learned Magistrate was pleased to award Rs.
100/- to the wife and Rs. 50/- to each minor child by way of maintenance from the
date of the application.
4. Being aggrieved by the said order of maintenance, both the parties preferred
revision applications. Original applicants/wife and minor children filed Criminal
Revision application No. 76 of 1987 and the original

Page: 229

opponent/husband filed Criminal Revision Application No. 96 of 1987 before the

Sessions Judge, at Jamnagar. The learned Additional Sessions Judge, at Jamnagar,
was pleased to dismiss both the revision applications without cost on 21-10-1989.
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5. Being dissatisfied, the original applicants have, now, come up before this Court
challenging the legality and validity of the quantum of maintenance order passed by
the learned Magistrate, by riling this petition.
6. Learned Counsel Mr. Budhbhatti for the respondent/original opponent contened
that in view of the limited scope in the present petition, the petition is required to be
rejected. It is true that the jurisdictional sweep of this Court in this petition is very
much circumscribed. Unless and until illegality, misreading or perversity is,
successfully, pointed out, this Court would be at loath to interfere with the impugned
order of maintenance.
7. The learned Counsel for the petitioner herein, vehemently, contended that the
fixity of quantum of maintenance by the learned Magistrate is not only perverse but is
illegal. He further contended that this is most appropriate case to interfere with and
enhance the quantum of maintamance.
8. Having examined the facts and circumstances of the present case, this court is
satisfied that the finding with regard to the quantum of maintenance arrived at by the
learned Magistrate and subsequently confirmed by the learned Additional Sessions
Judge, at Jamnagar is, totally perverse and requires to be interfered with.
9. The marriage between the husband and wife took place 14 years before filing of
the petition for maintenance. There is no dispute about the fact that the wife is living
separate at her brother's place. The original applicants/wife and minor children have
no separate source of income of their own. The wife is unable to maintain herself. She
is staying separate from her husband with two minor children. She is shouldering the
responsibility of maintaining the minors and the minors are school going children.
Minor son, “Sachin” was aged about 12 years and minor daughter “Mamta” was aged
about 9 years at the time of filing of application for maintenance. They are studying in
school. Minor son was studying in 6th standard and minor daughter was studying in
4th standard at the relevant time. The applicant/wife is aged 27 and the
opponent/husband is aged about 35 years. These facts are not in controversy.
10. The controversy revolves round about the income of the husband. The husband
has contended that he is not earning more than Rs. 180/- per month whereas the wife
has contended that her husband is earning Rs. 10,000/- to Rs. 12,000/- a month.
11. The learned Magistrate has observed in his judgment that since the specific
income of the opponent/husband could not be ascertained from the evidence it was
ordered to award Rs. 100/- to the wife and Rs. 50/- to each child per month. This
observation of the learned Magistrate, with due respect to him, is perverse Onus to
show that the husband has sufficient means is on the wife. No dispute about that. But
the onus to show that no sufficient means are there is on the part of the husband.
Besides, what is the exact earning of the husband is within the special knowledge of
the husband. The wife cannot be compelled to prove the income of her husband
precisely and beyond reasonable doubt. At the best, what she could say in the
circumstances of the case has been said. Whether her evidence is acceptable or
reliable or not is to be considered. But one thing is certain in the present case and that
is that the opponent/husband in the present case is a young man and able-bodied
person. He is doing business of selling kerosene as a hawker. The husband has
admitted in his evidence that he was selling 3000 litres of kerosene per month at

Page: 230

the relevant time. He was holding, as the owner, one Hero Majestic Moped bearing No.
GUP 7705. He had also one auto-rickshaw No. GTP 980 in 1986.
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12. The learned Magistrate has adopted, not only conservative approach but a very
perverse view while fixing the quantum of maintenance in the light of the facts of the
persenl case. Unfortunately, the learned Additional Sessions Judge has also failed to
appreciate that it is not the income of the husband only is to be considered but the
capacity to earn is also required to be borne in mind along with the basic necessities of
life of wife and children while fixing the quantum of maintenance. While examining the
observations of the learned Additional Sessions Judge in the impugned judgment and
order, it leaves no any manner of doubt that he has misread the evidence on record
and has, totally failed to appreciate the most relevant and material aspect while
determining the quantum of maintenance, which could, undoubtedly, warrant the
interferance of this Court in this petition.
13. Learned Additional Sessions Judge has also observed that the
opponent/husband cannot be believed that he has no other source or income other
than the income out of kerosene selling work. He has also held that the
opponent/husband must be earning something more by running auto-rickashaw. It is
also observed by him that it cannot be believed that the opponent/husband is an
ordinary miscellaneous kerosene hawker. He has also observed that it is possible that
the opponent/husband must have some other source of income out of some business
wherein he might have invested money after disposal of the auto-rickshaw. The
opponent/husband is staying with his mother and brother, who are also earning. The
learned Additional Sessions Judge has observed that all the three aforesaid persons,
staying jointly have been earning. Despite of all these observations and finding, the
learned Additional Sessions Judge, unfortumately, found that there is no sufficient
ground to enhance the quantum of maintenance fixed by the learned Magistrate. The
aforesaid observations are used for rejecting the revision application filed by the
opponent/husband. However, the aforesaid ob-servatins could have been considered
for enhancing the quantum of maintenance while dealing with the revision application
filed by the wife. Needless to repeat that the two revision applications arose out of the
order of the learned Magistrate came to be disposed of by the learned Additional
Sessions Judge by a common judgment and order. The learned Additional Sessions
Judge has committed a serious error which is apparent on the face of the record. It
may be that the learned Additional Sessions Judge might have lost sight of the said
observations made by him while reaching to the final conclusion. Be as it may. The
conclusion with regard to the fixity of quantum of maintenance is, totally, perverse
and deserves to be interfered with by this Court in this petition.
14. Although the expression “maintenance” occurring in Section 125 of the Code
has not been statutorily defined, it includes, undoubtedly, the expenses for food,
clothing, residence, medical education and other such incidental expenses, relating to
the normal pursuits of life. The Court is also required to bear in mind the inflation
prevalent in the market. To overlook the sharp fall in value of rupee while deciding
such a point, would, obviously, will entail injustice to the persons entitled to the
maintenance under Section 125 of the Code. It is not only the earning or the income
of the person bound to provide maintenace is to be considered alone, his capaicty to
earn and his potentiality for earning should also be given due weightage. These
important aspects are, unfortunately; not considered by the courts below. There are
several factors which would influence the mind of the Court while fixing the quantum
of maintenance under Section 125 of the Code, such as:
(1) The earnings of the person bound to provide maintenance or his capacity to
earn.

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(3) The basic requirement of the person entitled to maintenance.

(4) The liabilities on the part of the person to provide maintenance.
(5) Independent source of earnings of the person entitled to maintenance and its
quantum.
(6) Inflationary trends prevalent in the market and the value of rupee.
15. The aforesaid points are required to be considered seriously while fixing the
quantum of maintenance. It is true that the amount of maintenance should not be
luxurious so as to prompt the wife to remain away from the husband nor it should be
penurious so as to deprive the wife or children the basic necessities of life. The Court is
obliged to address itself to all these important aspects while determining the quantum
of maintenance. In the background of the parties and the objects for which provisions
of Section 125 of the Code are incorporated, it may be noted that the provisions of
Section 125 of the Code are benevolent provisions designed to prevent vagrancy and
destitution. It is found from the evidence on record that the educational expenses for
the minors per month came to almost to Rs. 40/- for each at the relevant time.
Needless to repeat that minor son was studying in 6th standard and minor daughter
was studying in 4th standard at the relevant time. Receipts for the educational
expenses were also produced. Apart from the expenses pertaining to term fees, tuition
fees, the expenses for uniform, books, for better private tuition, for transport charges
from residence to school and back, etc., are also to be considered. The amount of Rs.
50/- to each child, preactically, would be wiped out by the education expenses. What
about the food, clothing, medical and other expenses of life which are basic necessities
of life? Similarly, a rejected and dejected wife, who is at the mercy of her brother
staying at his residence, cannot get her two ends meet within a paltry amount of Rs.
100/- In fact, she is entitled to reasonable expences for residence, for her food,
clothing and other such expenses of day-to-day life so as to prevent vagrancy and
Section 125 of the Code is, in reality, intended for ensuring reasonably supply of food,
clothing and shelter to such deserted wife and children. That is the reason why the
Parliament in its wisdom incorporated these provisions in Section 125 of the Code so
as to provide speedy and summary remedy against vagrance and starvation for a
deserted wife, child or indigent parents. These are the important question to which the
court while dealing with an application for maintenance should invariably be looked
into. Unfortunately, in the present case, the courts below have failed to properly
examine and appreciate the aforesaid points.
16. The expression “means” in Section 125 of the Code does not signify only the
visible income, such as, real property or regular source of income or a definite
employment. A person who is able-bodied and who does not suffer from any physical
or mental incapacity can be considered as a person who has the capacity to earn
sufficient income because his physical and mental capacity provide him the capacity to
earn. Therefore, even if a person who has no definite source of income or a regular
source of income, he cannot escape his liability to pay maintenance. It cannot be
contended, even for a moment, that the person who is not earning or who is not
sufficiently earning, cannot be fasten with the liability for providing maintenance to his
wife or children. He is liable to pay reasonable maintenance to the wife and children so
as to see that they get their two ends meet.
17. A person, who has the capacity to earn, is liable under Section 125 of the Code,
even if he is an insolvent, unemployed, a professional beggar, highly indebted, a
Sadhu or a monk. It is for the husband to show that he has incurred incapacity

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or he has no sufficient means and he has no capacity to earn. It will be relevant to

mention at this stage that in a Division Bench decision of the Bombay High Court in
the case of Muni Kantivijayaji v. Empecor, reported in AIR, 1932, Bombay, 235, it was
held that a ground by merely becoming a Sadhu (Jain Sadhu) is not an excuse for not
maintaining his wife. It was further held in the said case that it is for the husband to
show that he is not an able-bodied or that he has incurred incapacity to earn.
Therefore, the rightful claim for maintenance cannot be refused on the ground that the
person who is liable for payment of maintenance is not earning. What is required to be
considered is the capacity to earn. The quantum of maintenance is required to be fixed
in the light of the aforesaid all relevant facts and circumstances.

18. Unfortunately, the courts below adopted, totally, an erroneous approach and
took perverse views while fixing the quantum of maintenance. What was the income of
the opponent was a matter of special knowledge of the opponent-husband. It cannot
be said in the present case that he could not have shown his earnings at the relevant
point of time. He failed to show his real income. He cannot be paid premium or he
cannot be offered benefit by concealing his real income. In fact, the courts below have
failed to draw adverse inference against the opponent/husband. Apart from that, a
permissible inference about the earnings of the husband considering his capacity to
earn has also resulted into miscarriage of justice, which is required to be obliterated.
In fact, there is no hesitation in holding that the finding of the courts below with
regard to the quantum of maintenance is not only erroneous but is tainted with
perversity which would warrant the interference of this Court.
19. Having regard to the facts and circumstances of the present case, the
applicant/wife would be entitled to at least a sum of Rs. 200/- per month from the
date of the application and each minor child would be entitled to Rs. 100/- per month
from the date of the application.
20. In the result, the impugned judgment and order is required to be modified
accordingly and the petition is required to be allowed to that extent.
21. At the request of the leanred Counsel for the respondent-husband/original
opponent, he is granted time of four months to pay the additional amount of
maintenance. In other words, the difference of amount between the original order and
the order of this court shall be paid on or before the expity of four months from today.
In the result, this petition is, partly, allowed. Looking to the facts and circumstances of
the case, respondent No. 1/original opponent/husband is directed to pay Rs. 500/- by
way of cost of this petition. Rule is made absolute to the aforesaid extent accordingly.
(RPV)
22. Rule made absolute to the extent indicated.
———
*
Petition challenging order dated 21-10-89 passed by the learned Additional Judge, Jamnagar in Criminal Revision
Application Nos. 76 of 1987 against order passed by J.M.F.C. in Cri. Misc. Application No. 30 of 1987.
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