civil Court's decree always prevails over that of criminal court, but that theory is only applicable when identical issue falls for consideration both by the criminal court and civil court. The said theory is inapplicable in the instant case, as where in the petition for restitution of conjugal rights, the issue of cruelty which is raised here under S. 125, Cr.P.C. was neither an issue there before the civil court nor was adjudicated. Further, the factum of sterilisation is not in dispute. What remains is consideration of legal aspects as to whether such an act of husband amounts to cruelty. Even if the civil court adjudicates on this sole legal point in a different fashion, that cannot operate as a bar for adjudication independently, separately and in a different manner by the criminal court under S. 125, Cr.P.C. as it is purely a legal aspect. If the husband obtains decree for restitution of conjugal rights, to merely avoid maintenance, the said decree for restitution of conjugal rights cannot be a ground to deny the maintenance. Further, mere passing of a decree of restitution of conjugal rights would not disentitle the wife to claim maintenance. If the wife did not contest the restitution of conjugal rights petition, there cannot be any inference that she has consented to live with her husband by reason of not contesting the proceedings for restitution of conjugal rights. Further where there is legal and valid reason for the wife to live separately from the husband, mere passing of ex parte decree of restitution of conjugal rights in favour of the husband cannot disentitle the wife from claiming maintenance from her husband. When the non-compliance of decree for restitution of conjugal rights is a ground for obtaining divorce and even after such divorce, the wife is entitled for maintenance under S. 125, Cr.P.C. there is not reason to hold that mere passing of the decree of restitution of conjugal rights debars the wife from claiming maintenance.
The petitioner-wife like all other women entered into the marriage state with respondent-husband hoping to fulfil one of the most important functions of matrimony i.e. bearing of children. But the respondent-husband was selfish and unscrupulous who cared more for his sexual satisfaction and married the petitioner by concealing the factum of his undergoing sterilisation operation knowing fully well that she would be driven to barrenness. The said act of the respondent-husband in undergoing sterilisation operation and then marrying the petitioner-wife denying the latter the normal means of child bearing is an unlawful assault and a grave cruelty on the petitioner-wife and progressive hurt to her health and such a cruelty is both physical and mental. As such, there was a just and sufficient cause for the petitioner-wife to stay apart from the respondent-husband and claim maintenance.
a) whether the act of an husband in undergoing vasectomy operation and suppressing the same, marrying a woman resulting in her barrenness amounts to cruelty entitling the said wife to stay apart and claim maintenance under S. 125, Cr.P.C. and
b) whether the wife suffering a decree for restitution of conjugal rights is disabled to claim maintenance under S. 125, Cr.P.C.
2. The facts briefly stated, thus, are :
The revision petitioner (hereinafter referred to as 'the wife') and the 1st respondent (hereinafter referred to as 'the husband') got married during the year 1982. Though it was the first marriage for the wife, for the husband it was the second marriage. Through his first wife, he begot a daughter and two sons and then underwent vasectomy operation. After some time, when his first wife died, he married the petitioner. It is a confirmed finding of fact that the husband did not tell his wife before the 2nd marriage that he underwent vasectomy operation and that she cannot bear children. The wife came to know of the said fact only later as she did not find the fruits of sexual union. Then the husband revealed her that he underwent vasectomy operation even before his marriage with her and that there was no chance of her begetting any children. She counselled him to undergo recanalisation operation, but he did not heed to the same. She tried through her father, but he too failed. Then there were mediations which were also not fruitful as the husband did not budge. Misunderstandings arose. Then the wife was ill-treated by her husband as also his mother and sister. Ultimately, she was out of her matrimonial home. The Court of Magistrate before whom the maintenance claim was filed in M.C. No. 19/88 held as a finding of fact that there was a just and reasonable cause for the wife to stay apart and to claim maintenance. The defence raised by the husband that no cruelty was meted out to his wife; that she is voluntarily staying apart and that he has obtained a decree for restitution of conjugal rights which was granted ex parte was the wife did not contest and in view of the same, the wife was not entitled to claim maintenance, was repelled. The maintenance claim was quantified at Rs. 400/- per month and pending decision, for some time interim maintenance at the rate of Rs. 100/- was granted to the wife. The husband filed a revision before the court of Sessions in Crl.R.P. No. 280/92 which held that there was no just cause for the wife to stay apart and that the cruelty alleged by her was not proved holding that the misunderstanding arose resulting in strained relationship and the wife was staying apart only on the ground that she could not bear any children as her husband underwent vasectomy operation even before their marriage. It is significant to note the findings of the Court of Sessions "In all probability disputes must have arisen due to the refusal of the husband to undergo recanalisation operation and there is no prospect of begetting children through him", "It shows that PW 1 (wife) has developed dislike towards her husband and there is no reasonable and probable cause for PW-1 to refuse to join her husband." Thus, it is clear that while allowing the revision and setting aside the order of maintenance the court of Sessions based its judgment on two grounds; namely, (1) that starving a wife of children is not a sufficient reason for staying apart and claim maintenance; and (2) that decree for restitution of conjugal rights disentitled the wife to claim maintenance.
3. Ms. Rohini, the learned counsel for the petitioner vehemently contends that the 1st respondent has acted cruelly on the petitioner and these cruel acts have been sufficiently proved and that the order of the Court of Magistrate is valid and that there is no justification for the Court of Sessions to interfere and reverse the said order. She contends that, even if the other allegations made by the petitioner are not found to be corroborated, the court of Sessions having confirmed the finding of fact that the 1st respondent underwent sterilisation operation before marrying the petitioner and concealed the same from her, ought to have confirmed the maintenance order. According to Ms. Rohini, the act of the 1st respondent-husband in marrying the petitioner by concealing the factum of sterilisation knowing fully well that he cannot procreate children when the petitioner married the 1st respondent with dominent purpose of bearing children, amounted to cruelty in all respects - physical mental and legal and as such, the same was a just cause and a sufficient reason for the petitioner to stay apart and claim maintenance. She cited decisions in support of her contention. Mr. Venkata Ramesh, the learned counsel appearing for the 1st respondent argues otherwise and submits that the 1st respondent as the husband has got no other obligation under S. 125, Cr.P.C. other than providing food, clothing and shelter to the petitioner and no other factor can be taken into consideration and more so, an issue of barrenness like the instant one. He has also cited decisions in support of his contentions.
4. In olden days, husband making provision of 'Roti, Kapda and Makan' to his wife was held to be sufficient to discharge his obligation and the claim for maintenance under S. 488, Cr.P.C. (old) corresponding to the present provision viz. Section 125, Cr.P.C. for any other reason was considered irrelevant. Then explanation was added by legislation to the above provision stating that if a husband contracts marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. But, then the question arose whether this enumerated reason apart from 'Roti, Kapda and Makan' were the only ground could be a just ground for the wife to stay apart and claim maintenance. There was divergence of legal opinion expressed by several High Court, some saying that the enumerated grounds are the only one available to claim maintenance, while other High Courts held that some other grounds also can constitute a ground on the ground that the statutory provision is not exhaustive.
5. In Jaggavarapu Basavamma v. Jaggavarapu Setta Reddy, AIR 1922 Mad 209 : (1922 (23) Cri LJ 336), it was held that there is nothing in the Code which compels the Criminal Court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life; refusal to cohabit is no ground. This was followed an Arunachala v. Anandayammal, AIR 1933 Mad 688 (1) : (1933 (34) Cri LJ 950) holding that S. 488 of Cr.P.C. has nothing to do with ordinary conjugal rights; it deals with maintenance only. On the said case, Burn, J. observed "I cannot see that S. 488, Cr.P.C. has anything to do with ordinary conjugal rights; it deals with maintenance only and I see no reason why maintenable should be supposed to include anything more than appropriate food, clothing and lodging." The said view was followed by Hidayatulla, J. in Emperer v. Doulat Raibhan, AIR 1948 Nagpur 69 : (1948 (49) Cri LJ 52). Kerala High Court has followed the said views in Velayudhan v. Sukmari, 1971 Ker LT 443. Similar was the view taken by the Andhra Pradesh High Court in Gubbala Suryanarayana Murthy v. Gubbala Vijaya Naga Kumari, 1971 Andh Pra HCN
96. In the said case, this court held that excepting where the husband has neglected or refused to maintain the wife, no other consideration can be entertained for passing an order of maintenance and that S. 488, Cr.P.C. has nothing to do with conjugal rights. But, these views are outmoded, antiquated and archaic and have become completely out-dated and it was so held by a land mark judgment of the Supreme Court in Sirajmohmedkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972 : (1981 Cri LJ 1430) giving completely a new dimension to the claim of maintenance under S. 125, Cr.P.C. In the said case, overruling the old views, the Supreme Court held that cruelty is a ground relevant under S. 125, Cr.P.C. and that the wife can claim maintenance on the ground of cruelty even if the husband is ready to maintain the wife and stay with her. In the said case, husband was an important and could not perform sexual inter-course with his wife and when the wife petitioned for maintenance, eventually, the same was upheld by the Supreme Court holding that failure to perform sexual intercourse by the husband amounted to cruelty and the wife was entitled to stay apart and claim maintenance. Even slighting, insulting and threatening the wife were held to be acts of cruelty on the part of the husband. In Khatoon v. Mohd. Yamin, wife refusing to live with husband
because he wrote a letter to her asking her to come back to him, otherwise, the said letter would be treated as divorce, was held to be a sufficient reason for the wife to stay apart and claim maintenance treating the letter of the husband as an unreasonable threat amounting to cruelty.
6. In view of the above discussion, it is, thus, clear that the enumerated grounds mentioned under S. 125, Cr.P.C. are not exhaustive. What is a sufficient reason is a matter of evolution by judicial precedents. Mere marriage and making provision for food, clothing and lodging was not held to be sufficient by the Supreme Court in the decision referred to supra and it was held that it is cruel on the part of the husband if he is an impotent and cannot perform the physical act of sexual intercourse. Can this concept of cruelty be further stretched to the act of the husband, if he marries to have sexual union but not to have children ? The concept of cruelty in the absence of specific definition should not be static and its scope should vary with the change of social conditions in which married couple lives. New rules of social behaviour and conduct must be recognised by courts in determining what would amount to cruelty in the present set up. The need to pay a particular attention to the mind of the petitioner entitles the Courts to take into account the greater liability of a woman to psychological injury. The women all over the world have got one common instinct i.e. to bear children and that is natural. Now, the fair sex has got their rightful place in the society and there is complete emancipation of women by taking off all the old shackles and bondages. She is no more a chattel to depend upon the sweet will and mercy of the husband.
7. Marriage is a social institution and is regarded solemn all over the civilised world regardless of religions. Marriage is legally and socially sanctioned union of a man and woman that accords status to them as husband and wife implying cohabitation and procreation of children. No civilised society permits a man to marry a woman only for the purpose of cohabitation. Marriage has got a definite purpose i.e. to live together, to cohabit, to procreate children; to rear them and to have descent. The design and object of marriage is both procreation and mutual enjoyment and it is neither solely for procreation nor solely for satisfying the lust. The gratification of transient passion is not only the criterion for the husband, but in the institution of marriage, he is obligated to procreate children as a fruit of the said love. In a civilised society, the purpose of marriage is the union of two souls and bodies to share rights and liabilities, joys and sorrows, happy conjugal relationship, dominent purpose being to procreate the progeny. In fact, procreation of children is one of the main aims, constituents and ends of marriage. If the husband is potent and able to cohabit, but naturally infertile, it is not an act of cruelty and the wife as a faithful companion has to bear the same. But, if the husband is fertile and gets his fertility terminated by artificial act of sterilisation operation or practices coitus interruptus thereby preventing his wife from bearing children forcing her to barrenness is definitely an act of cruelty. The said cruelty is physical, mental and legal. This view of mine is fortified by the judgments in White v. White (1948) 2 All ER 151 where the husband practising coitus interruptus (withdrawing before emission) was held to be an act of cruelty. The same view was taken in Walsham v. Walsham (1949) 1 All ER 774 where the act of husband who formed the habit of partial intercourse by coitus interruptus from the early days of marriage life and despite repeated protests by the wife, was held to be an act of cruelty. In Cackett v. Cackett (1950) 1 All ER 677, the husband who practised coitus interruptus, thus, preventing his wife from bearing children was held to have acted with cruelty. Similar was the view in Bravery v. Bravery (1954) 3 All ER 59 where the act of husband in undergoing operation for sterilisation in disregard of his wife's wishes and natural instinct to have one more child was held to be an act of cruelty. In fact, in the said case, the couple had a child, but the wife was insistent on having another child. But, the husband without the consent of his wife and against her wishes and without her knowledge underwent sterilisation operation.
8. The petitioner-wife like all other women entered into the marriage state with respondent-husband hoping to fulfil one of the most important functions of matrimony i.e. bearing of children. But the respondent-husband was selfish and unscrupulous who cared more for his sexual satisfaction and married the petitioner by concealing the factum of his undergoing sterilisation operation knowing fully well that she would be driven to barrenness. The said act of the respondent-husband in undergoing sterilisation operation and then marrying the petitioner-wife denying the latter the normal means of child bearing is an unlawful assault and a grave cruelty on the petitioner-wife and progressive hurt to her health and such a cruelty is both physical and mental. As such, there was a just and sufficient cause for the petitioner-wife to stay apart from the respondent-husband and claim maintenance.
9. Then the next question to be answered is whether the decree of restitution of conjugal rights obtained by the husband against his wife in a civil court bars the wife from claiming maintenance under S. 125, Cr.P.C.
10. It is not disputed that since the month of April, 1986, the petitioner-wife is not staying in the matrimonial home and is staying with the parents at a far off place from that of the 1st respondent-husband. The 1st respondent-husband filed O.P. No. 33/1988 on the file of the court of the Subordinate Judge, Amalapuram and there is no difficulty in holding that the same was filed only to pre-empt the petitioner-wife from claiming maintenance. In fact, the circumstances were such that from a far off place, the helpless and hapless petitioner-wife could not go over and contest the case. In the result, she was set ex parte and decree for restitution of conjugal rights was granted. But, there was no triable issue with regard to the cruelty on the part of the 1st respondent-husband in forcing the petitioner-wife to be barren by his voluntary act of undergoing sterilisation operation before marriage and concealing the same. It is no doubt true that civil Court's decree always prevails over that of criminal court, but that theory is only applicable when identical issue falls for consideration both by the criminal court and civil court. The said theory is inapplicable in the instant case, as where in the petition for restitution of conjugal rights, the issue of cruelty which is raised here under S. 125, Cr.P.C. was neither an issue there before the civil court nor was adjudicated. Further, the factum of sterilisation is not in dispute. What remains is consideration of legal aspects as to whether such an act of husband amounts to cruelty. Even if the civil court adjudicates on this sole legal point in a different fashion, that cannot operate as a bar for adjudication independently, separately and in a different manner by the criminal court under S. 125, Cr.P.C. as it is purely a legal aspect. If the husband obtains decree for restitution of conjugal rights, to merely avoid maintenance, the said decree for restitution of conjugal rights cannot be a ground to deny the maintenance. Further, mere passing of a decree of restitution of conjugal rights would not disentitle the wife to claim maintenance. If the wife did not contest the restitution of conjugal rights petition, there cannot be any inference that she has consented to live with her husband by reason of not contesting the proceedings for restitution of conjugal rights. Further where there is legal and valid reason for the wife to live separately from the husband, mere passing of ex parte decree of restitution of conjugal rights in favour of the husband cannot disentitle the wife from claiming maintenance from her husband. When the non-compliance of decree for restitution of conjugal rights is a ground for obtaining divorce and even after such divorce, the wife is entitled for maintenance under S. 125, Cr.P.C. there is not reason to hold that mere passing of the decree of restitution of conjugal rights debars the wife from claiming maintenance. In the circumstances, I hold that passing of a decree for restitution of conjugal rights in O. P. 33/88 instituted by the 1st respondent-husband against the petitioner-wife does not disentitle the latter from claiming maintenance.
11. In view of what is stated supra, the order passed by the Court of the III Additional Sessions Judge, Kakinada in Crl.R.P. No. 119 of 1991 is set aside, restoring the order passed by the Court of III Additional Judicial First Class Magistrate, Kakinada in M.C. No. 19/1988. The 1st respondent-husband is granted two months time to clear off all the arrears of maintenance and is further directed to be prompt in payment of monthly maintenance from the month of April, 1994 and the monthly maintenance shall be payable before 10th day of each English calendar month commencing from 10th April, 1994. In default of the compliance of this order, coercive steps of enforcement of the order both by attachment and realisation out of the property of the 1st respondent-husband and simultaneously committing him to the prison can be taken.
12. The Criminal Revision Case is allowed.
13. Revision allowed.
Print Page
The petitioner-wife like all other women entered into the marriage state with respondent-husband hoping to fulfil one of the most important functions of matrimony i.e. bearing of children. But the respondent-husband was selfish and unscrupulous who cared more for his sexual satisfaction and married the petitioner by concealing the factum of his undergoing sterilisation operation knowing fully well that she would be driven to barrenness. The said act of the respondent-husband in undergoing sterilisation operation and then marrying the petitioner-wife denying the latter the normal means of child bearing is an unlawful assault and a grave cruelty on the petitioner-wife and progressive hurt to her health and such a cruelty is both physical and mental. As such, there was a just and sufficient cause for the petitioner-wife to stay apart from the respondent-husband and claim maintenance.
Andhra High Court
Kamadi Bhavani vs Kamadi Lakshmanaswamy Lakshmana ... on 11 March, 1994
Equivalent citations: 1994 (1) ALT 472, 1994 (1) ALT Cri 580, 1994 CriLJ 1827
1. This Criminal Revision raises an important question arising under S. 125 of Criminal Procedure Code (for short 'Cr.P.C.') as to :a) whether the act of an husband in undergoing vasectomy operation and suppressing the same, marrying a woman resulting in her barrenness amounts to cruelty entitling the said wife to stay apart and claim maintenance under S. 125, Cr.P.C. and
b) whether the wife suffering a decree for restitution of conjugal rights is disabled to claim maintenance under S. 125, Cr.P.C.
2. The facts briefly stated, thus, are :
The revision petitioner (hereinafter referred to as 'the wife') and the 1st respondent (hereinafter referred to as 'the husband') got married during the year 1982. Though it was the first marriage for the wife, for the husband it was the second marriage. Through his first wife, he begot a daughter and two sons and then underwent vasectomy operation. After some time, when his first wife died, he married the petitioner. It is a confirmed finding of fact that the husband did not tell his wife before the 2nd marriage that he underwent vasectomy operation and that she cannot bear children. The wife came to know of the said fact only later as she did not find the fruits of sexual union. Then the husband revealed her that he underwent vasectomy operation even before his marriage with her and that there was no chance of her begetting any children. She counselled him to undergo recanalisation operation, but he did not heed to the same. She tried through her father, but he too failed. Then there were mediations which were also not fruitful as the husband did not budge. Misunderstandings arose. Then the wife was ill-treated by her husband as also his mother and sister. Ultimately, she was out of her matrimonial home. The Court of Magistrate before whom the maintenance claim was filed in M.C. No. 19/88 held as a finding of fact that there was a just and reasonable cause for the wife to stay apart and to claim maintenance. The defence raised by the husband that no cruelty was meted out to his wife; that she is voluntarily staying apart and that he has obtained a decree for restitution of conjugal rights which was granted ex parte was the wife did not contest and in view of the same, the wife was not entitled to claim maintenance, was repelled. The maintenance claim was quantified at Rs. 400/- per month and pending decision, for some time interim maintenance at the rate of Rs. 100/- was granted to the wife. The husband filed a revision before the court of Sessions in Crl.R.P. No. 280/92 which held that there was no just cause for the wife to stay apart and that the cruelty alleged by her was not proved holding that the misunderstanding arose resulting in strained relationship and the wife was staying apart only on the ground that she could not bear any children as her husband underwent vasectomy operation even before their marriage. It is significant to note the findings of the Court of Sessions "In all probability disputes must have arisen due to the refusal of the husband to undergo recanalisation operation and there is no prospect of begetting children through him", "It shows that PW 1 (wife) has developed dislike towards her husband and there is no reasonable and probable cause for PW-1 to refuse to join her husband." Thus, it is clear that while allowing the revision and setting aside the order of maintenance the court of Sessions based its judgment on two grounds; namely, (1) that starving a wife of children is not a sufficient reason for staying apart and claim maintenance; and (2) that decree for restitution of conjugal rights disentitled the wife to claim maintenance.
3. Ms. Rohini, the learned counsel for the petitioner vehemently contends that the 1st respondent has acted cruelly on the petitioner and these cruel acts have been sufficiently proved and that the order of the Court of Magistrate is valid and that there is no justification for the Court of Sessions to interfere and reverse the said order. She contends that, even if the other allegations made by the petitioner are not found to be corroborated, the court of Sessions having confirmed the finding of fact that the 1st respondent underwent sterilisation operation before marrying the petitioner and concealed the same from her, ought to have confirmed the maintenance order. According to Ms. Rohini, the act of the 1st respondent-husband in marrying the petitioner by concealing the factum of sterilisation knowing fully well that he cannot procreate children when the petitioner married the 1st respondent with dominent purpose of bearing children, amounted to cruelty in all respects - physical mental and legal and as such, the same was a just cause and a sufficient reason for the petitioner to stay apart and claim maintenance. She cited decisions in support of her contention. Mr. Venkata Ramesh, the learned counsel appearing for the 1st respondent argues otherwise and submits that the 1st respondent as the husband has got no other obligation under S. 125, Cr.P.C. other than providing food, clothing and shelter to the petitioner and no other factor can be taken into consideration and more so, an issue of barrenness like the instant one. He has also cited decisions in support of his contentions.
4. In olden days, husband making provision of 'Roti, Kapda and Makan' to his wife was held to be sufficient to discharge his obligation and the claim for maintenance under S. 488, Cr.P.C. (old) corresponding to the present provision viz. Section 125, Cr.P.C. for any other reason was considered irrelevant. Then explanation was added by legislation to the above provision stating that if a husband contracts marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. But, then the question arose whether this enumerated reason apart from 'Roti, Kapda and Makan' were the only ground could be a just ground for the wife to stay apart and claim maintenance. There was divergence of legal opinion expressed by several High Court, some saying that the enumerated grounds are the only one available to claim maintenance, while other High Courts held that some other grounds also can constitute a ground on the ground that the statutory provision is not exhaustive.
5. In Jaggavarapu Basavamma v. Jaggavarapu Setta Reddy, AIR 1922 Mad 209 : (1922 (23) Cri LJ 336), it was held that there is nothing in the Code which compels the Criminal Court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life; refusal to cohabit is no ground. This was followed an Arunachala v. Anandayammal, AIR 1933 Mad 688 (1) : (1933 (34) Cri LJ 950) holding that S. 488 of Cr.P.C. has nothing to do with ordinary conjugal rights; it deals with maintenance only. On the said case, Burn, J. observed "I cannot see that S. 488, Cr.P.C. has anything to do with ordinary conjugal rights; it deals with maintenance only and I see no reason why maintenable should be supposed to include anything more than appropriate food, clothing and lodging." The said view was followed by Hidayatulla, J. in Emperer v. Doulat Raibhan, AIR 1948 Nagpur 69 : (1948 (49) Cri LJ 52). Kerala High Court has followed the said views in Velayudhan v. Sukmari, 1971 Ker LT 443. Similar was the view taken by the Andhra Pradesh High Court in Gubbala Suryanarayana Murthy v. Gubbala Vijaya Naga Kumari, 1971 Andh Pra HCN
96. In the said case, this court held that excepting where the husband has neglected or refused to maintain the wife, no other consideration can be entertained for passing an order of maintenance and that S. 488, Cr.P.C. has nothing to do with conjugal rights. But, these views are outmoded, antiquated and archaic and have become completely out-dated and it was so held by a land mark judgment of the Supreme Court in Sirajmohmedkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972 : (1981 Cri LJ 1430) giving completely a new dimension to the claim of maintenance under S. 125, Cr.P.C. In the said case, overruling the old views, the Supreme Court held that cruelty is a ground relevant under S. 125, Cr.P.C. and that the wife can claim maintenance on the ground of cruelty even if the husband is ready to maintain the wife and stay with her. In the said case, husband was an important and could not perform sexual inter-course with his wife and when the wife petitioned for maintenance, eventually, the same was upheld by the Supreme Court holding that failure to perform sexual intercourse by the husband amounted to cruelty and the wife was entitled to stay apart and claim maintenance. Even slighting, insulting and threatening the wife were held to be acts of cruelty on the part of the husband. In Khatoon v. Mohd. Yamin, wife refusing to live with husband
because he wrote a letter to her asking her to come back to him, otherwise, the said letter would be treated as divorce, was held to be a sufficient reason for the wife to stay apart and claim maintenance treating the letter of the husband as an unreasonable threat amounting to cruelty.
6. In view of the above discussion, it is, thus, clear that the enumerated grounds mentioned under S. 125, Cr.P.C. are not exhaustive. What is a sufficient reason is a matter of evolution by judicial precedents. Mere marriage and making provision for food, clothing and lodging was not held to be sufficient by the Supreme Court in the decision referred to supra and it was held that it is cruel on the part of the husband if he is an impotent and cannot perform the physical act of sexual intercourse. Can this concept of cruelty be further stretched to the act of the husband, if he marries to have sexual union but not to have children ? The concept of cruelty in the absence of specific definition should not be static and its scope should vary with the change of social conditions in which married couple lives. New rules of social behaviour and conduct must be recognised by courts in determining what would amount to cruelty in the present set up. The need to pay a particular attention to the mind of the petitioner entitles the Courts to take into account the greater liability of a woman to psychological injury. The women all over the world have got one common instinct i.e. to bear children and that is natural. Now, the fair sex has got their rightful place in the society and there is complete emancipation of women by taking off all the old shackles and bondages. She is no more a chattel to depend upon the sweet will and mercy of the husband.
7. Marriage is a social institution and is regarded solemn all over the civilised world regardless of religions. Marriage is legally and socially sanctioned union of a man and woman that accords status to them as husband and wife implying cohabitation and procreation of children. No civilised society permits a man to marry a woman only for the purpose of cohabitation. Marriage has got a definite purpose i.e. to live together, to cohabit, to procreate children; to rear them and to have descent. The design and object of marriage is both procreation and mutual enjoyment and it is neither solely for procreation nor solely for satisfying the lust. The gratification of transient passion is not only the criterion for the husband, but in the institution of marriage, he is obligated to procreate children as a fruit of the said love. In a civilised society, the purpose of marriage is the union of two souls and bodies to share rights and liabilities, joys and sorrows, happy conjugal relationship, dominent purpose being to procreate the progeny. In fact, procreation of children is one of the main aims, constituents and ends of marriage. If the husband is potent and able to cohabit, but naturally infertile, it is not an act of cruelty and the wife as a faithful companion has to bear the same. But, if the husband is fertile and gets his fertility terminated by artificial act of sterilisation operation or practices coitus interruptus thereby preventing his wife from bearing children forcing her to barrenness is definitely an act of cruelty. The said cruelty is physical, mental and legal. This view of mine is fortified by the judgments in White v. White (1948) 2 All ER 151 where the husband practising coitus interruptus (withdrawing before emission) was held to be an act of cruelty. The same view was taken in Walsham v. Walsham (1949) 1 All ER 774 where the act of husband who formed the habit of partial intercourse by coitus interruptus from the early days of marriage life and despite repeated protests by the wife, was held to be an act of cruelty. In Cackett v. Cackett (1950) 1 All ER 677, the husband who practised coitus interruptus, thus, preventing his wife from bearing children was held to have acted with cruelty. Similar was the view in Bravery v. Bravery (1954) 3 All ER 59 where the act of husband in undergoing operation for sterilisation in disregard of his wife's wishes and natural instinct to have one more child was held to be an act of cruelty. In fact, in the said case, the couple had a child, but the wife was insistent on having another child. But, the husband without the consent of his wife and against her wishes and without her knowledge underwent sterilisation operation.
8. The petitioner-wife like all other women entered into the marriage state with respondent-husband hoping to fulfil one of the most important functions of matrimony i.e. bearing of children. But the respondent-husband was selfish and unscrupulous who cared more for his sexual satisfaction and married the petitioner by concealing the factum of his undergoing sterilisation operation knowing fully well that she would be driven to barrenness. The said act of the respondent-husband in undergoing sterilisation operation and then marrying the petitioner-wife denying the latter the normal means of child bearing is an unlawful assault and a grave cruelty on the petitioner-wife and progressive hurt to her health and such a cruelty is both physical and mental. As such, there was a just and sufficient cause for the petitioner-wife to stay apart from the respondent-husband and claim maintenance.
9. Then the next question to be answered is whether the decree of restitution of conjugal rights obtained by the husband against his wife in a civil court bars the wife from claiming maintenance under S. 125, Cr.P.C.
10. It is not disputed that since the month of April, 1986, the petitioner-wife is not staying in the matrimonial home and is staying with the parents at a far off place from that of the 1st respondent-husband. The 1st respondent-husband filed O.P. No. 33/1988 on the file of the court of the Subordinate Judge, Amalapuram and there is no difficulty in holding that the same was filed only to pre-empt the petitioner-wife from claiming maintenance. In fact, the circumstances were such that from a far off place, the helpless and hapless petitioner-wife could not go over and contest the case. In the result, she was set ex parte and decree for restitution of conjugal rights was granted. But, there was no triable issue with regard to the cruelty on the part of the 1st respondent-husband in forcing the petitioner-wife to be barren by his voluntary act of undergoing sterilisation operation before marriage and concealing the same. It is no doubt true that civil Court's decree always prevails over that of criminal court, but that theory is only applicable when identical issue falls for consideration both by the criminal court and civil court. The said theory is inapplicable in the instant case, as where in the petition for restitution of conjugal rights, the issue of cruelty which is raised here under S. 125, Cr.P.C. was neither an issue there before the civil court nor was adjudicated. Further, the factum of sterilisation is not in dispute. What remains is consideration of legal aspects as to whether such an act of husband amounts to cruelty. Even if the civil court adjudicates on this sole legal point in a different fashion, that cannot operate as a bar for adjudication independently, separately and in a different manner by the criminal court under S. 125, Cr.P.C. as it is purely a legal aspect. If the husband obtains decree for restitution of conjugal rights, to merely avoid maintenance, the said decree for restitution of conjugal rights cannot be a ground to deny the maintenance. Further, mere passing of a decree of restitution of conjugal rights would not disentitle the wife to claim maintenance. If the wife did not contest the restitution of conjugal rights petition, there cannot be any inference that she has consented to live with her husband by reason of not contesting the proceedings for restitution of conjugal rights. Further where there is legal and valid reason for the wife to live separately from the husband, mere passing of ex parte decree of restitution of conjugal rights in favour of the husband cannot disentitle the wife from claiming maintenance from her husband. When the non-compliance of decree for restitution of conjugal rights is a ground for obtaining divorce and even after such divorce, the wife is entitled for maintenance under S. 125, Cr.P.C. there is not reason to hold that mere passing of the decree of restitution of conjugal rights debars the wife from claiming maintenance. In the circumstances, I hold that passing of a decree for restitution of conjugal rights in O. P. 33/88 instituted by the 1st respondent-husband against the petitioner-wife does not disentitle the latter from claiming maintenance.
11. In view of what is stated supra, the order passed by the Court of the III Additional Sessions Judge, Kakinada in Crl.R.P. No. 119 of 1991 is set aside, restoring the order passed by the Court of III Additional Judicial First Class Magistrate, Kakinada in M.C. No. 19/1988. The 1st respondent-husband is granted two months time to clear off all the arrears of maintenance and is further directed to be prompt in payment of monthly maintenance from the month of April, 1994 and the monthly maintenance shall be payable before 10th day of each English calendar month commencing from 10th April, 1994. In default of the compliance of this order, coercive steps of enforcement of the order both by attachment and realisation out of the property of the 1st respondent-husband and simultaneously committing him to the prison can be taken.
12. The Criminal Revision Case is allowed.
13. Revision allowed.
No comments:
Post a Comment