Right to Maintenance

Section 125 of the Code of Criminal Procedure reads as follows:

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained     majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

Who are entitled ?  

           
A person is bound to maintain his wife, children and aged parents, who are unable to maintain themselves. While ordering maintenance the Court has to consider the income and the status of the person who is liable to pay maintenance and also the income and status of the person claiming maintenance. Though a wife can file a suit for maintenance in Family Court, this Section is provided to get maintenance as early as possible. 

The wife can refuse to live with her husband if he lives with a mistress. No wife shall be entitled to receive maintenance from her husband under this Section if she is living in adultery, or husband and wife are living separately by mutual consent. The petitioner can file any number of petitions under Section 125 Cr.P.C for enhancement of maintenance when the circumstances change. The Court after considering the change of circumstances can enhance the maintenance accordingly. 

Quantum of Maintenance

Right of Maintenance under Hindu Law is a substantive right and a continuing right and it is variable from time to time. The Family Court or the District Court may in satisfaction of change of circumstances modify, recind or enhance the maintenance allowance. On proof of change and circumstance, the family Court has jurisdiction under Section 127 Cr.P.C. to revise the earlier order passed under Section 125 of the Code. Uma Vs. Lalit Kumar Sharma (1999 (1) DMC 83). In Ekradeshwari Vs. Homeswar (AIR 1929 PC 128), the privy council held, that fixation of maintenance depends upon a number of factors and the same must be determined on the facts of a particular case. The said ruling was rendered prior to the enactment of Hindu Adoption and Maintenance Act 1956.

The Apex Court in Kulbhusan Vs. Rajkumari (AIR 1971 SC 234) approved the said observation by the Privy Council under Section 23(2) of the said Act. See also K.Sivakumar Vs. K.Sambasiva Rao (2001 (1) DMC 75) and G.C.Gosh Vs.Sushmita Gosh (2001 (1) DMC 469). The wife is entitled to have the same status as her husband. She must have the necessary medical facility, food, clothing etc.. While fixing the amount of maintenance, the Court should also take into account considering the inflation and cost of living and his obligation to support the minor child and his parents. S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699).

There is no fixed Rule, while arriving at the Quantum, in respect of permanent Alimony. It is only the independent income of the payee which is to be considered. While granting relief of permanent alimony, the court has to keep in view the following considerations:

i) Husband's own income.
ii) Income of the Husband from other property;
iii) Income of the Applicant.
iv) Conduct of parties.

Ramlal Vs. Surender Kaur (1995 (1) (iv) L.J 204 (Punjab)

In Vanaja Vs. Gopa (1992 (1) DMC 347) the High Court Madras has held that the fact that the wife has already got maintenance under Section 125 Cr.P.C. is no bar to her getting alimony pendante lite under Section 24 of the Hindu Marriage Act.

Enforcement

After ordering maintenance if the respondent husband fails or refuses to pay the maintenance without sufficient cause the magistrate can issue warrant for levying the amount due in the manner provided for levying fines and may also sentence such person for the whole or any part of each month's allowance 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.

SC: Recall of Order even if signed by Judge

Supreme Court has ruled that Judge can recall the Order and change his mind even if the draft copy is signed and dictated in the open Court.

In Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat (SLP (Crl.) No.453 of 2014) the Bench comprising of Justices B.S. Chauhan, J. Chelameswar and M.Y. Eqbal took a view that in certain circumstances the Order can be recalled and altered even if it was dictated in the open Court.

The petition was filed against the interim Order dated 27.12.2013 passed by the High Court of Gujarat at Ahmedabad. Petitioners were Police Constables who were in charge of escorting an accused in Narcotics Case. Accused absconded from the custody. The petitioners were charged and found guilty for the offence punishable under Section 222 Indian Penal Code.

Petitioners preferred an appeal before the High Court and at the first instance the appeal was allowed on the ground that sanction of the State Government under Section 197 of the Code of Criminal Procedure, 1973 was necessarily required for the conviction.

The Order was recalled on the ground that the Court wanted to examine the issue further as to whether in the facts and circumstances of the case where the accused had been police constables; the offence could not be attributed to have been committed under the discharge of their duty where sanction under Section 197 Cr.P.C. would be attracted.

Petitioners contented that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or Order passed in criminal case once it has been pronounced and signed.

Court relied upon its own decision in Sangam Lal v. Rent Control and Eviction Officer, Allahabad & Ors which the Court came to the conclusion that until a judgment is signed and sealed after delivering in Court, it is not a judgment and it can be changed or altered at any time before it is signed and sealed.

Court heavily relied upon its Judgment in Surendra Singh & Ors. v. State of U.P which observed as follows;

               “Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of ‘locus paenitentiae’ and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full-fledged judgment and become operative. It follows that the Judge who “delivers” the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind”.

Court found no merits in the appeal and dismissed holding that no exception can be taken to the procedure adopted by the High Court

Court has made a remark as follows;

               “A Judge’s responsibility is very heavy, particularly, in a case where a man’s life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture. Therefore, one cannot assume that the Judge would not have changed his mind before the judgment become final”.

Third party clause under RTI is applicable between Husband and Wife

The Central Information Commission (CIC) recently refused a request by husband to get hold of information about his wife’s locker. 
  
The appellant had filed his RTI application on 02.05.2012 seeking information pertaining to operation of a locker of his wife. The PIO of the bank denied information to the appellant under section 8(1)(d),(e) and (j) of the RTI Act. The first appellate authority (FAA) also upheld the decision of PIO. The appellant then filed a second appeal on 18.07.2012 with the Commission.

The appellant referred to his RTI application of 02.05.2012 and stated that he is seeking information regarding the operation of his wife’s locker. The appellant submitted that he has strained relations with his wife and he wanted to know on what dates and how many times, the locker was operated by his wife during a certain period. The appellant also requested for statement of wife’s savings bank account and details of fixed deposits till date.

The CIC ruled that the approach of respondent bank was in conformity with the provision of RTI Act and hence it upheld the decision of PIO and FAA.

Applicability of RTI Act in Private Schools: Chief Information Commission

In the significant decision, Ms. Sadhana Dixit Vs. Directorate Of Education, the Central Information Commission (CIC) ruled that private schools cannot deny to provide information on service records and salaries of an employee. The Chief Information has ruled that private schools governed by laws like the Delhi Education Act will have to provide the information.

The Appellant an ex-employee of Jindal Public School under the Directorate of Education had filed an RTI to obtain a certified copy of service book, copies of her appointment letter  and staff statements of all the employees. The Directorate of Education provided all the information available with them but the school did not share any of the information asked by the appellant on the grounds that the RTI Act did not apply to a private institution.

The Appellant preferred a second appeal before the Commission after she was unsatisfied with the information provided by the Public Information Officer (PIO) of the Directorate. Information Commissioner Sridhar Acharyulu directed the school to provide her with the information requisitioned under Section 2(f) of the RTI Act and said that the school “has a duty under sections 4 and 8 of the Delhi Education Act 1973, to abide by the regulatory conditions of service, payment of salaries as prescribed, etc for which the school has to maintain the records, which provide an inherent and implied right to information to their employees.”

The Commissioner also noted that, “Under Right to Education Act 2009 also, the recognized school is under an obligation to appoint eligible teachers and provide them with prescribed wages. This also reveals that it has given inherent Right to Information to the teachers from their employers.”The Commissioner then directed the school to furnish the information sought by the appellant under the law to the Directorate of Education who in turn would provide it to the appellant.

This decision by the Information Commission will now ensure transparency in the service records of teachers and other staff among private schools governed by the Delhi Education Act.

PIL seeking Uniform Civil Code turned down by Delhi High Court

A public interest litigation (PIL) for implementation of apex court’s direction to provide a uniform civil code applicable throughout the Indian jurisdiction turned down by the Delhi High Court.A bench of Chief Justice G Rohini and Justice R S Endlaw dismissed the plea citing various verdicts of the Supreme Court.

The PIL, submitted by Mool Chand Kucheria, referred to the case of Sarla Mudgal vs Union of India of 1995 adjudicated by the Supreme Court. The said legal suit opined to the then government to “secure for the citizens a uniform Civil Code throughout the territory of India” and the execution of it be done in a time-bound manner. He had also sought a direction “for constitution of a committee of religious gurus or experts to see the smooth implementation of the said guidelines."

Disposing of the plea, the high court said, "Nevertheless the fact remains that the Supreme Court, in spite of having held so, did not issue any direction as the petitioner is asking us to issue. We, therefore, do not find any ground to entertain this petition which is dismissed." The high court also noted in its verdict that the apex court in Sarla Mudgal judgment had observed that "the Government would be well advised to entrust the responsibility to the Law Commission to bring about the comprehensive legislation in keeping with modern day concept of human rights."

In the Sarla Mudgal judgment the apex court had held as void the second marriage of a Hindu man who got married again after converting to Islam.

Explaining the Sarala Mudgal Judgment Supreme Court in Lily Thomas Vs. Union of India, it is held that “any direction for the enforcement of Art. 44 of the Constitution could not have been issued by only one of the Judges in Sarla Mudgal’s case. In fact, Sarla Mudgal’s case was considered by this Court in Ahmedabad Women Action Group v. Union of India and it was held that the question regarding the desirability of enacting a Uniform Civil Code did not directly arise in Sarla Mudgal’s case ”.