Marriage is the normal state in this country and people who habitually live below the poverty line (their number is quite substantial) and even beggars marry in this country. Ordinarily such people cannot even maintain themselves in a proper way. Marriage does not endow them with any ability not only to maintain their own selves but also their wives in a proper way. In that view of the matter it is difficult to understand why from the very fact a person is able-bodied, it is to be presumed that he is in a position to pay sufficient maintenance to his wife, whether in fact he is in such a position or not. That will be going against the provision of the section itself which only saddles the husband with the burden of paying maintenance to his wife when he has sufficient means and yet neglects to do so.
2. It is urged from the side of; the petitioner-husband that both the courts below arrived at the finding on the point of marriage more on surmise than on evidence and further that they both erred in finding again without evidence that he had sufficient means to pay any maintenance to the respondent-wife.
3. The present seems to be a very unhappy case. It appears that the parties who are neighbours fell in love with each other and a registered marriage followed. Out of some wrangling over payment of dower etc. the girl could never go to the boy's parental house to live there with him as his wife. Subsequently misunderstanding developed between the two and admittedly the present petitioner has married again another girl and is now the father of a child.
4. The factum of marriage between the parties has been amply established by oral evidence and true copy of a certificate of marriage. The petitioner's contention that the marriage between him and the respondent has not been satisfactorily established cannot therefore be entertained.
5. Next comes the point of the petitioner's ability to pay any maintenance to the respondent. The evidence on this point is really very meagre. The respondent's case as per her evidence was that the petitioner had vast landed property, that he also had a business in paddy and rice and thus he earned 8/9 hundred rupees per month. No effort was made to establish that the petitioner actually used to run any business. No effort was also made to establish how much land he actually possessed. All that came out in cross-examination of the petitioner himself was that his father had given him 2 bighas of land and that he himself purchased 1 bigha. He also admitted that he worked as a private tutor. He earned about Rs. 100/- per month approximately from those two sources. Relying on this evidence and the social status of the parties the learned Magistrate concluded that the present petitioner had sufficient means to pay Rs. 100/- per month as maintenance to the respondent. His finding in this regard was upheld by the learned Sessions Judge who to the above materials also added the fact that the petitioner was wearing a wrist-watch and a golden ring and further that he was in clothes worth about Rs. 150/-, to reach the conclusion that he was in a position to pay maintenance at least at the rate of Rs. 75/- per month if not Rs, 100/- per month. It is urged from the side of the petitioner that the conclusions were drawn up by both the learned Magistrate and the learned Sessions Judge without any factual basis whatsoever.
6. I think that there is considerable strength in the argument made from the side of the petitioner. To saddle the petitioner with the burden of paying maintenance to the respondent, it must be established first that the petitioner has sufficient means to pay the same. All that has been established in this case is that the petitioner has only 3 bighas of land. There is no material whatsoever to show how much is left of the produce of these 3 bighas after meeting all the costs of cultivation. It cannot be considered proper to come to any definite finding on the point of one's means merely on the basis of what one may be found to be wearing at a particular point of time. It cannot be said therefore that sufficient means of the petitioner has been satisfactorily established in this case.
7. The learned Advocate for the respondent urges at the first instance that the present proceeding which has arisen out of an application under Article 227 of the Constitution restricts the powers of this Court only to see that the subordinate courts kept within the bounds of their authority and not for any other purpose. It is true in Waryam Singh v. Amar Nath , Nagendra v. Commr.
, Babhut Mal v. Laxmi Bai , Md. Yunus
v. Md. Mustagim the Hon'ble Supreme Court held again and again that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited to seeing that an inferior court or tribunal functions within the limits of its authority. From that it does not ; follow however that this Court while exercising jurisdiction under Article 227 of the Constitution cannot look into the evidence on record to see as to whether the findings recorded were not passed on any material or were otherwise perverse. That has been specifically laid down in Nibaran v. Mahendra Nath AIR 1963 SC 1895. What is necessary is that the perverseness of the finding should be apparent on the face of the records and that it should not be apparent only when evidence has been gone into in details which falls within the exclusive powers of the appellate court.
8. It is urged next from the side of the respondent that since the present petitioner is an able-bodied young man, it is to be presumed that he is capable of earning sufficient means so as to be able to reasonably maintain his wife and that it is for him to establish cogent grounds for holding that he is unable for reasons beyond his control to earn enough to maintain his wife. Chander Parkash v. Smt. Sila Rani is cited in this connection. With all respect to the Hon'ble Judge who delivered this judgment it must be pointed out that there is really no such presumption in law and that such, a presumption cannot also be spelt out from the language of the Section 125 Cr. P.C. Marriage is the normal state in this country and people who habitually live below the poverty line (their number is quite substantial) and even beggars marry in this country. Ordinarily such people cannot even maintain themselves in a proper way. Marriage does not endow them with any ability not only to maintain their own selves but also their wives in a proper way. In that view of the matter it is difficult to understand why from the very fact a person is able-bodied, it is to be presumed that he is in a position to pay sufficient maintenance to his wife, whether in fact he is in such a position or not. That will be going against the provision of the section itself which only saddles the husband with the burden of paying maintenance to his wife when he has sufficient means and yet neglects to do so.
9. Be that as it may, the learned Sessions Judge cut down the amount of maintenance payable by the petitioner to the respondent to the amount of Rs. 70/- per month. The learned Advocate for the petitioner suggests that the amount be cut down to Rs. 50/- per month. Considering the circumstances of the case the difference in between Rs. 70/- and Rs. 50/- being not much, I am of the view that the learned Sessions Judge's decision in this regard need not be interfered with the relief obtainable from a husband under Section 125 Cr. P.C. being a temporary one.
10. In that view of what has been stated above the present application under Article 227 of the Constitution is hereby rejected. Send the case records back to the learned Magistrate immediately.
11. The rule is hearby discharged.
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Calcutta High Court
Dasarathi Ghosh vs Anuradha Ghosh And Anr. on 19 March, 1986
Equivalent citations: 1988 CriLJ 64
1. This application under Article 227 of the Constitution is directed against an order being order No. 2 dt 6-4-81 passed by Shri R. K. Kar, learned Sessions Judge, Hooghly in Criminal Motion No. 20 of 1981. This criminal motion was preferred by the present petitioner husband against the judgment and order passed in M. C. case No. 198 of 1978 by Shri S. I. Saha, learned S.D.J.M., Hooghly allowing the respondent-wife's petition under Section 125 Cr. P.C. and allowing her Rs. 100/- per month by way of maintenance. In the aforementioned criminal motion the present petitioner-husband challenged both the findings of the learned Magistrate on the points of marriage as well as his ability to pay the maintenance in question and the quantum thereof. The learned Sessions Judge upheld the learned Magistrate's finding on the point of marriage but finding that the petitioner's ability to pay Rs. 100/- per month by way of maintenance was not established very satisfactorily, he cut-down the amount to Rs. 75/- per month. Hence, this application under Article 227 of the Constitution.2. It is urged from the side of; the petitioner-husband that both the courts below arrived at the finding on the point of marriage more on surmise than on evidence and further that they both erred in finding again without evidence that he had sufficient means to pay any maintenance to the respondent-wife.
3. The present seems to be a very unhappy case. It appears that the parties who are neighbours fell in love with each other and a registered marriage followed. Out of some wrangling over payment of dower etc. the girl could never go to the boy's parental house to live there with him as his wife. Subsequently misunderstanding developed between the two and admittedly the present petitioner has married again another girl and is now the father of a child.
4. The factum of marriage between the parties has been amply established by oral evidence and true copy of a certificate of marriage. The petitioner's contention that the marriage between him and the respondent has not been satisfactorily established cannot therefore be entertained.
5. Next comes the point of the petitioner's ability to pay any maintenance to the respondent. The evidence on this point is really very meagre. The respondent's case as per her evidence was that the petitioner had vast landed property, that he also had a business in paddy and rice and thus he earned 8/9 hundred rupees per month. No effort was made to establish that the petitioner actually used to run any business. No effort was also made to establish how much land he actually possessed. All that came out in cross-examination of the petitioner himself was that his father had given him 2 bighas of land and that he himself purchased 1 bigha. He also admitted that he worked as a private tutor. He earned about Rs. 100/- per month approximately from those two sources. Relying on this evidence and the social status of the parties the learned Magistrate concluded that the present petitioner had sufficient means to pay Rs. 100/- per month as maintenance to the respondent. His finding in this regard was upheld by the learned Sessions Judge who to the above materials also added the fact that the petitioner was wearing a wrist-watch and a golden ring and further that he was in clothes worth about Rs. 150/-, to reach the conclusion that he was in a position to pay maintenance at least at the rate of Rs. 75/- per month if not Rs, 100/- per month. It is urged from the side of the petitioner that the conclusions were drawn up by both the learned Magistrate and the learned Sessions Judge without any factual basis whatsoever.
6. I think that there is considerable strength in the argument made from the side of the petitioner. To saddle the petitioner with the burden of paying maintenance to the respondent, it must be established first that the petitioner has sufficient means to pay the same. All that has been established in this case is that the petitioner has only 3 bighas of land. There is no material whatsoever to show how much is left of the produce of these 3 bighas after meeting all the costs of cultivation. It cannot be considered proper to come to any definite finding on the point of one's means merely on the basis of what one may be found to be wearing at a particular point of time. It cannot be said therefore that sufficient means of the petitioner has been satisfactorily established in this case.
7. The learned Advocate for the respondent urges at the first instance that the present proceeding which has arisen out of an application under Article 227 of the Constitution restricts the powers of this Court only to see that the subordinate courts kept within the bounds of their authority and not for any other purpose. It is true in Waryam Singh v. Amar Nath , Nagendra v. Commr.
, Babhut Mal v. Laxmi Bai , Md. Yunus
v. Md. Mustagim the Hon'ble Supreme Court held again and again that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited to seeing that an inferior court or tribunal functions within the limits of its authority. From that it does not ; follow however that this Court while exercising jurisdiction under Article 227 of the Constitution cannot look into the evidence on record to see as to whether the findings recorded were not passed on any material or were otherwise perverse. That has been specifically laid down in Nibaran v. Mahendra Nath AIR 1963 SC 1895. What is necessary is that the perverseness of the finding should be apparent on the face of the records and that it should not be apparent only when evidence has been gone into in details which falls within the exclusive powers of the appellate court.
8. It is urged next from the side of the respondent that since the present petitioner is an able-bodied young man, it is to be presumed that he is capable of earning sufficient means so as to be able to reasonably maintain his wife and that it is for him to establish cogent grounds for holding that he is unable for reasons beyond his control to earn enough to maintain his wife. Chander Parkash v. Smt. Sila Rani is cited in this connection. With all respect to the Hon'ble Judge who delivered this judgment it must be pointed out that there is really no such presumption in law and that such, a presumption cannot also be spelt out from the language of the Section 125 Cr. P.C. Marriage is the normal state in this country and people who habitually live below the poverty line (their number is quite substantial) and even beggars marry in this country. Ordinarily such people cannot even maintain themselves in a proper way. Marriage does not endow them with any ability not only to maintain their own selves but also their wives in a proper way. In that view of the matter it is difficult to understand why from the very fact a person is able-bodied, it is to be presumed that he is in a position to pay sufficient maintenance to his wife, whether in fact he is in such a position or not. That will be going against the provision of the section itself which only saddles the husband with the burden of paying maintenance to his wife when he has sufficient means and yet neglects to do so.
9. Be that as it may, the learned Sessions Judge cut down the amount of maintenance payable by the petitioner to the respondent to the amount of Rs. 70/- per month. The learned Advocate for the petitioner suggests that the amount be cut down to Rs. 50/- per month. Considering the circumstances of the case the difference in between Rs. 70/- and Rs. 50/- being not much, I am of the view that the learned Sessions Judge's decision in this regard need not be interfered with the relief obtainable from a husband under Section 125 Cr. P.C. being a temporary one.
10. In that view of what has been stated above the present application under Article 227 of the Constitution is hereby rejected. Send the case records back to the learned Magistrate immediately.
11. The rule is hearby discharged.
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