Court: RAJASTHAN HIGH COURT
Bench: JUSTICE M.A.A. Khan
RADHEY SHYAM & ORS. Vs. MEERA DEVI & ANR. On 11 December 1996
Karta of H.U.F. may be under statutory obligation to maintain disqualified member of H.U.F. and his wife and minor children. But summary proceedings contemplated in Section 125, Cr.P.C cannot be invoked against Karta.
Since both these Revision Petitions u/Sec. 397, Cr.P.C. arise out of the same order of the learned Addl. Sessions Judge dated April 9, 1992 passed u/Sec. 397, Cr.P.C. whereby the learned Addl. Sessions Judge reversed the order passed by the learned Addl. Chief Judicial Magistrate, Kishangarh Bas, Alwar, in Criminal Case No. 65/1990 dismissing respondents application u/Sec. 125, Cr.P.C. for grant of maintenance to them, these were heard together and are being disposed of by this common order. The main order .shall be placed on the file of S.B. Cr. Revision Petition No. 100/92 Radhey Shyam v. Smt. Meera Devi & Anr., and a copy thereof shall be placed on the file of the other petition.
2. Respondent Smt. Meera Devi and her minor son Satyanarain had filed an application u/Sec. 125, Cr.P.C. in the Court of Addl. Chief Judicial Magistrate, Kishangarh Bas, Alwar on 7.12.1990 alleging herein that Smt. Meera Devi was married to Shri Ram Avtar petitioner on 10.9.1978 according to the tenets of Hindu religion, that the wedlock produced a male issue, Satyanarain respondent No. 2 for them but after the birth of Satyanarain the relations between the husband and wife deteriorated and became strained and in September, 1985 Smt. Meera Devi was turned out of her matrimonial house and since then she had been living, alongwith her minor son, with her father. It was further alleged that Ram Avtar respondent, despite having sufficient means to maintain his wife and minor son, neglected to maintain them. The respondents, therefore, prayed that Smt. Meera Devi be granted maintenance allowance at the rate of Rs. 500/- p.m. and Satyanarain, minor son, be granted maintenance allowance at the rate of Rs. 400/- p.m. from the date of the application.
3. The application was opposed on behalf of the petitioner Ram Avtar on the ground that he, being a mentally retarded person, was dependent upon his elder brother Radhey Shyam, and was thus unable and also having no means to maintain himself, his wife and minor child. It was further averred that Smt. Meera Devi, alongwith her minor child had left the company of Ram Avtar on her own long back and had been living with her parents. In a sense, it was averred that she had deserted Ram Avtar petitioner for not good reasons and was, therefore, not entitled to any maintenance u/Sec. 125, Cr.P.C.
4. The learned Trial Court after considering the evidence of the parties produced before him held that Mr. Ram Avtar, petitioner was a mentally disabled person, that he was having no sufficient means even to maintain himself, that he was dependent for his maintenance upon his elder brother, Mr. Radhey Shyam, that Smt. Meera Devi had left the company of Ram Avtar on her own and did not want to live with him. The learned Trial Court, therefore, held that Ram Avtar respondent was neither having sufficient means to maintain the respondents nor did he neglect to maintain them. Holding thus the learned Trial Court dismissed the petition of the respondents.
5. In revision, however, the learned Addl. Sessions Judge though accepted the finding of the learned Trial Court that Ram Avtar petitioner being a mentally retarded person was unable even to maintain himself yet he fastened the liability of maintaining the respondents upon Ram Avtar’s elder brother, Mr. Radhey Shyam (Petitioner in S.B. Cr. Rev. Pet. No. 100/92), who, according to the learned Sessions Judge, was the Karta of the Hindu joint family of which Ram Avtar was a member, and as such was bound to maintain the female and the minor child of coparcener of the Hindu joint family. The learned Sessions Judge, therefore, directed that Mr. Radhey Shyam petitioner shall pay a sum of Rs. 250/- p.m. to Smt. Meera Devi arid Rs. 200/- p.m. to Mr. Satyanarain, minor child through her guardian Smt. Meera Devi towards their maintenance allowance from the date of application i.e., 7.12.1990. The order so made by the learned Sessions Judge in the petition preferred by Smt. Meera Devi and Satyanarain before him is now being challenged before this Court by Mr. Ram Avtar, the mentally retarded husband and Mr. Radhey Shyam, the elder brother of Ram Avtar through these two separate petitions.
6. At the very outset Mr. N.K. Joshi, the learned Counsel for the petitioners in both the petitions urged that in so far as the validity of the impugned order as against Radhey Shyam was concerned that cannot be upheld for the obvious reason that Radhey Shyam was neither a party to the proceedings before the two Courts below nor was he ever given any opportunity of being heard before making the impugned order, by the learned Sessions Judge.
7. Mr. Akhil Modi, the learned Counsel appearing for the respondents in the two petitions, however, urged that is the pious duty and obligation of the Karta of a Hindu joint family to maintain the members of such family particularly the females and minor children therein and if in view of such obligation of the Karta of the Hindu joint family the learned Sessions Judge passed the impugned order, such order should not be interfered with.
8. I have given my thoughtful consideration to the arguments advanced before me and have also examined the record of the inferior Courts.
9. Insofar as the validity of the impugned order as against Radhey Shyam, petitioner is concerned that cannot be approved of for the obvious reason that Radhey Shyam was neither a party to the proceedings before any of the two Courts below nor was he given an opportunity of being heard before making the impugned order. It is one of the cardinal principles of the law relating to the rights and obligations of the parties that no one is to be condemned without giving him an opportunity of being heard. This principle of natural justice now makes an integral part of our system of dispensation of justice between the parties in regard to their rights and obligations. The impugned order against Radhey Shyam, having been passed behind his back without giving him any opportunity of being heard, is against the principles of natural justice and the validity of such order cannot be approved.
10. However, the argument advanced by Mr. Modi provokes and necessitates a little discussion on the subject in the peculiar facts and circumstances of this case.
11. “The aged parents, a virtuous wife, and an infant child must be maintained every by doing a hundred misdeeds”, says Manu as cited at the Mitakshra. This famous saying from the ancient and original law given, who is reverently called the first Patriarch or the first expositor of Hindu Law, indicates the depth and extent of the normal obligation of a Hindu son, a Hindu husband and a Hindu father to maintain his parents, wife and minor child. The liability of a Hindu to maintain others, however, has two facets. In some cases such liability arises from the mere relationship of a Hindu with others and is quite independent of his possessing any property. Such a liability is personal liability which a Hindu has to discharge towards his aged parents, virtuous wife and infant child. In some other cases the liability of a Hindu to maintain others is dependent upon his possessing the property of the family to which the persons entitled to maintenance may belong. The concepts of the joint Hindu family, commonly called Hindu undivided family (H.U.F.) and the coparcenary are the two unique contributions by the Hindu Law to the way of life to any society of the human race. The joint and undivided family is the normal condition of Hindu society and possession of joint family property is not a necessary requisite for its constitution. Hindus get a joint family status by birth and /or by adoption of marriage and the possession of any joint family property by the family is only an adjunct of the joint family. Sex of members is immaterial for its constitution. A Hindu coparcenary, on the other hand, is a much narrower body than the Hindu undivided family. It is purely a creature of law and cannot be created by acts of parties, save adoption. Its essence lies in (i) male membership, (ii) possession of joint or coparcenary or more commonly called ancestral property, and (iii) unity of ownership of such property by the joint owners, called coparceners. Females, save to the extent discussed below, cannot be the members of a coparceners. The distinction between these two great concepts of Hindu Law have a bearing upon the law of maintenance of the members of a Hindu Undivided Family––some of whom may be having that relationship between the parties which lead to personal liability to maintain and some of whom would necessitate the possession of some ancestral property with the Manager of the property for their maintenance.
12. Under pure Hindu Law certain disabilities used to execute a Hindu from inheritance in the coparcenary property. But notwithstanding the changes brought about by the Hindu Inheritance (Removal of Disabilities) Act, 1928 the disqualified Hindu, his wife and children were always considered entitled to maintenance out of the property which he would have inherited but for the disability and where he was excluded from a share on partition, he, his wife and children were entitled to have a provision made for their maintenance out of the joint family property. The same is the position of law relating to maintenance of the members of the Hindu undivided family by the Manager of the joint family property. The Manager of a joint Mitakshra family is under a legal obligation to maintain these persons arises from the fact that the Manager is in possession of the family property. The liability to maintain a disqualified member is also governed by same principles.
13. The right of a Hindu wife to separate maintenance and residence used to be once regulated by the Hindu Married Women’s Right to Separate Residence Act, 1946 since repeated by Section 29 of the Hindu Adoptions and Maintenance Act, 1956. The Act of 1946, which had come into force on 23rd April, 1946 had given a statutory recognition to Hindu wife’s right to maintenance and liberalised the pure Hindu Law in her favour in several respects. But the Hindu Women’s Right to Property Act, 1937 made some very significant changes in her said right. Though her right to maintenance, as a widow, was not abolished in express terms yet the recognition of her right to a share, on partition of the Hindu undivided family property, under Sections 2 and 3 of that Act, left little for her to claim maintenance. But since there was nothing in that Act to oblige her to sue for partition after the death of her husband, her right to claim maintenance was preserved intact and she was entitled to sue for maintenance without having recourse to the remedy of partition. The Hindu Adoptions and Maintenance Act, 1956 and the Hindu Succession Act, 1956 materially changed such right to her advantage. Sections 18 to 22 of the former Act and Sections 14 and 30 of the later Act may, specifically, be referred to in this behalf. The process of her becoming a “statutory coparcener” which commenced from Sections 2 and 3 of the Hindu Women’s Right to Property Act, 1937 was completed by Section 14 of the Hindu Succession Act, 1956 by making her the absolute owner of the interest of her deceased husband in the Hindu undivided family property, inherited and possessed by her as the widow of a deceased coparcener. The progressive development of Hindu Law thus emphatically refutes the speculative theory and uncharitable objection of Sir Henry Maine, author of Ancient law, and some of his contemporaries who unmindfully objected that Hindu Law was static or staid or “amere phantom of the brain imagined by the Sanskritists without law and lawyer without Sanskrit” or merely the ideal picture of that which in the view of Brahmins, ought to be the law. The ever developing and progressive growth of Hindu Law, throughout the period of the memory of the human race, gives a befitting answer to the unmerited and unjustified criticism and re-affirms that the way of family life, propounded by the Hindu law for a civilized society, accords with the very nature and psychology of human race.
14. The provisions contained in Chapter IX of the Code of Criminal Procedure, 1973, supplement the personal laws of the parties concerned relating to maintenance. It applies to all irrespective of the personal law of the parties. Section 125 contained in this Chapter provides for a summary procedure for securing maintenance and does not cover the entire subject and, therefore, findings recorded by a Magistrate under Chapter IX are not final. The same rights may be legitimately agitated before a Civil Court as well.
15. Section 125 occurring in Chapter IX relates to the case of neglect or of refusal to maintain ones wife, minor child, or the parents who are unable to maintain themselves. A husband, a father and a son respectively who, having sufficient means, neglects or refuses to maintain his wife, minor child or parents, therefore, fall within the net of these summary proceedings. The words ‘any person’ used in the phraseology of Sub-section (1) of Section 125 has a relevance to wife, minor child and father or mother mentioned in Clauses (a), (b), (c) and (d) of that sub-section. A Karta of the Hindu undivided family or the Manager of the joint family property may be under statutory obligation to maintain a disqualified member of the Hindu undivided family and his wife and minor children but the summary proceedings contemplated in Section 125, Cr.P.C. cannot be invoked against him. They may seek their remedy against the Karta of the Hindu undivided family or the Manager of the joint family Property before the Civil Court according to the personal law governing their rights for maintenance out of joint family property. In that sense of the matter, Radhey Shyam petitioner, the Karta of the joint family or the Manager of the joint family Property, who may be liable to maintain the mentally disabled brother, Ram Avtar, his wife and minor son, the respondents, under the personal law cannot be called upon under an order passed u/Sec. 125, Cr.P.C. to maintain them. His petition should, therefore, succeed on the merits of the case also.
16. I had to approach this case in the manner discussed above for the reason that the question of maintenance of a mentally disabled member of the Hindu undivided family and his wife and minor son was involved and the allowing of this petition on the short technical though legal ground might have conveyed wrong message and create confusion in the way of legal rights for maintenance of the respondents and the mentally disabled Ram Avtar. Their rights under the personal law are not to be adversely affected in any way by this order.
17. Insofar as the petition of Ram Avtar, the mentally retarded husband, is concerned there is the concurrent finding of the two Courts below that he is a mentally retarded person, a person unable of even maintaining himself. There is no finding of even the learned Addl. Sessions Judge that Ram Avtar was having any means to maintain even himself. Since Ram Avtar himself being a person unable of even maintaining himself and is not proved to be having sufficient means to maintain his wife and minor child, he cannot be asked to maintain them. In fact the very finding of the learned Sessions Judge that Ram Avtar’s elder brother Radhey Shyam was bound to maintain the respondents goes to show and affirms that Ram Avtar is unable to maintain himself and is having no sufficient means to maintain others, including his wife and minor son. The application of 125, Cr.P.C. stands attracted only in those cases where a person having sufficient means neglects or refuses to maintain his wife, minor child or parents. Indeed the capability to earn is also regarded as ability to earn and maintain ones dependents but in the present case the mental conditions of Ram Avtar clearly speaks that he is unable to even earning his own livelihood. Under such circumstances he cannot be asked to maintain his wife and minor child.
18. On going through the various letters written by the father of Smt. Meera Devi to Radhey Shyam and Ram Avtar, petitioners, it is gathered that Smt. Meera Devi was not at all willing to live with Ram Avtar she had left the company of Ram Avtar of her own and was not ready to come to her in-laws house despite efforts. She may be right in her action and conduct as her husband was mentally retarded person not only unable to maintain her and her minor child but also unable to give the required protection or the feeling of protection which a wife and minor child may reasonably expect of a husband or father as the case may be. The argument that Smt. Meera Devi could not be forced to live with her sister-in-law and brother-in-law and would, therefore, be entitled to separate residence and maintenance though appeals to my reasons in the facts and circumstances of this case, but that hardly affects the final decision in the case.
19. To sum up I hold that Sh. Ram Avtar, mentally disabled person, was not having sufficient means to maintain the respondents and for that reason he did not neglect or refuse to maintain them. He cannot, therefore, be asked to maintain the respondents as per provisions of Section 125, Cr.P.C. The respondents may seek their remedy under other laws in view of the fact that Ram Avtar, who had an obligation to maintain them u/Sec. 125, Cr.P.C. but, for the reasons recorded above, is unable to discharge such obligation.
20. For reasons recorded above, the impugned order as against Radhey Shym cannot be sustained.
21. In the result, the impugned order is set aside and both the petitions are hereby allowed.
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