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TMI Blog2008 (3) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... g sufficient means as he is engaged in stone-quarrying. He earns Rs. 50,000/- per month out of his work. He allegedly neglected the wife and child and did not even meet any necessary expenses. She left the house of the husband along with her child because of the cruelty inflicted by her husband at his house when they were living together. The petitioner is unable to maintain herself and she claimed Rs. 500/- per month as monthly maintenance from the respondent. The respondent filed a counter statement and denied all the allegations. His case is that the first petitioner is refusing to live with him, without any valid reason. He also disputed the sufficiency of means and also the alleged neglect. 4. The respondent filed a petition against the first petitioner before the same court, seeking restitution of conjugal rights. It was tried simultaneously with the maintenance case. In the said petition, the trial court found that the first petitioner is living separately from her husband without any valid reason and hence, directed the first petitioner to resume conjugal relationship with the respondent. According to the Family Court, the said order is binding is on the parties and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able from the date of the order, or, of so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the, case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance or the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that it such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 125 of the Code, in Begum Subanu v. A.M. Abdul Gafoor held as follows: The three essential requisites to be satisfied before an order of maintenance can be passed are that (1) the person liable to provide maintenance has sufficient means; (2) that he has neglected or refused to maintain and (3) the dependant/dependents is/are unable to maintain himself/herself/themselves as the case may be. In Mohd. Ahmed Khan v. Shah Bano Begum : 1985CriLJ875 the Supreme Court held, Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves.... Neglect by a person of sufficient means to maintain these and the inability of those persons to maintain themselves are the objective criteria which determine the applicability of Section 125. (emphasis supplied) 9. But, the trial court trial court rejected the claim of the petitioner for maintenance, on the ground that an order was passed against the wife for restitution of conjugal rights, holding that the wife was living separately from her husband, without any valid reason. There is nothing in Section 125 of the code to show that if the husband obtains an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared to come and live with him, despite such offer, there is 'Refusal' on the part of the wife to live with him. But, if the husband asks the wife to come back, without any offer, there is only a mere request or invitation and not any offer. Consequently, the failure to go back does not constitute 'refusal'. 12. Thus, refusal pre-supposes an offer whereas, in the case of failure , there may not be any offer. But, what is relevant under Section 125(4), is a 'refusal to live' with the husband and not mere 'failure to live' with him. A mere 'request' made by the husband to the wife or an invitation to her to come and stay with her, in the absence of any willingness on the part of the husband to do something, does not involve an offer or a' refusal'. A 'refusal' by the wife arises when there is a willingness on the part of the husband to do something for the wife and he offers to do it for her yet, she does not accept such offer. 13. Therefore, it is not mere living separately from the husband without sufficient cause or reason which is relevant under Section 125(4) of the code. It is not the mere 'failure to live ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While interpreting the scope of any of the Sub-section of Section 125 in the code, the courts must ensure that the rights of the weaker Section of the society are protected and not defeated, without taking care to understand the import of each and every word, which the legislature has so carefully chosen and used in a provision in a particular context. Hence, in my humble view, the expression 'Refusal to live' is not mere 'petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternative which advance the cause - the cause of the derelicts vide Capt. Ramesh Chander Kaushal v. Veena Kaushal: (1978) 4 SCC 70 authored by His Lordship V.R. Krishna Iyyar, J. 17. In Kirtikant D. Vadodaria v. State of Gujarat : (1996)4SCC479 , it was held that having regard to this special object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, I find that the lower court held that the husband has sufficient means. There is nothing on record to show that the wife is able to maintain herself. The wife established by satisfactory evidence that she is unable to maintain herself and the husband could not bring any thing on record to show that she is able to maintain herself. 21. Petitioner contended that herself and the child were neglected to be maintained by the husband, even while they were living with the respondent. There is also nothing on record to show that the wife was maintained by the husband at least after she started living separately from him. The husband has no case that he paid any amount as maintenance to the wife or the child, after their separation. In fact, his case is, he is not under any obligation to maintain the wife since she is living separately from him. Having not established that she was refusing to live with her husband, he cannot shirk off his obligation or responsibility to maintain the wife. Even if the wife was withdrawn from the society of her husband without sufficient reason, unless there is proof that there is a refusal by wife, husband cannot absolve himself from his liability to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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