JUDGMENT
A.S. Qureshi, J.
1. The petitioner herein is the lawfully wedded wife of the respondent No. 1. She has challenged the judgment and order dated 7-12-1985 passed by the Metropolitan Magistrate Court No. 3, Ahmedabad, rejecting her application for maintenance under Section 125 of the Criminal Procedure Code. She has also claimed in this Revision Application the enhancement of the amount of maintenance of Rs. 200 p.m. awarded to each of the two children of the couple.
2. The trial Court rejected the petitioner-wife’s application for maintenance on the ground that she did not prove that the respondent-husband had failed and neglected to maintain her. In coming to the said conclusion, the trial Court had taken into consideration the correspondence between the parties, especially Exhs. 4, 5, 6, 7, 17, 18 and 19. From the aforesaid letters, the trial Court drew the conclusion that there was no evidence of beating or torture or harassment by the husband to the wife. It also inferred that the wife left the husband voluntarily. The Court further held that the Civil Suit filed by the husband showed that he was ready and willing to keep the wife but she willfully refused to live with him.
3. On going through the aforesaid exhibits and other documents on record, this Court has come to the conclusion that the trial Court was not justified in holding that the respondent-husband had not failed or neglected to maintain the petitioner-wife and consequently rejecting her application for maintenance. The reasoning given by the trial Court that the letters Exhs. 5, 6 and 7 written by the wife do not show that she was being tortured or harassed, is not correct, because normally an average Indian wife puts up with a lot of mental and physical torture and deliberately does not disclose many things to her parents so that her matrimony may not be endangered. In this case there is evidence to show that there was harassment by the husband. The petitioner-wife in her letter Exh. 4 dated 29-3-1984 had stated that even after her mother and brother had come and gone, the harassment continued. She has also referred to another woman named Jyoti, who used to come to their house often. In the said letter she has stated that both her husband as well as the other woman Jyoti have been harassing her and beating her up. She has also stated that she was threatened to be killed by showing her a knife. It seems that the cause of quarrel is the other woman called Jyoti. The respondent-husband is a qualified Doctor in the E.S.I. Dispensary at Surat. The other woman Jyoti is said to be a nurse working in that dispensary. In her deposition, the petitioner-wife had stated that she had gone with her brother to her father’s house on 29 3-1983. But thereafter on account of the persuasion by her parents, she went back to her husband’s place at Surat. According to her, again she was beaten up and that while she was at her husband’s place she had second pregnancy. These facts, when objectively seen, would clearly indicate that there was tussle and tension in the matrimonial home partly because of the possible involvement of another woman. Be that as it may, the fact is that it appears quite unfair and unjust to bold that the wife was not neglected by the husband. The petitioner-wife went to her parent’s place for second delivery on 21-6-1984. The delivery took place on 29-9-1984. Only twelve days before the delivery, the respondent-husband sent a legal notice dated 17-9-1984 Exh. 8, through his Advocate Mr. C J. Khatiwala, making serious allegations regarding her taking away gold and silver jewellery, National Savings Certificate and valuable clothes in two suit-cases. It was further alleged that she had taken away all the valuables, as a result of conspiracy between herself, her parents and brother. According to him, it was done with evil intentions. It was further alleged that the wife and given threats to the husband and committed attrocities on him with a view to extract more money from him. In the said notice, the respondent-husband also alleged that the intention of the petitioner-wife was not to live with her husband, but to live permanently with her father and obtain an order of perpetual maintenance. Finally, in the said notice it was stated that the petitioner-wife should come back to her husband immediately and that he would take care to see that her delivery is looked after properly. It was also stated that if she failed to come back with all the afore-mentioned articles and property, he would take appropriate legal steps against her. The contents as well as the tenor of the said notice Exh. 8 clearly show that the respondent-husband was totally estranged from and deeply hostile to the wife. Although in the notice, it was stated that the wife should come back immediately, the allegation regarding her carrying away jewellery. National Savings Certificate and valuable clothes with ulterior motives and which she was asked to bring back, shows that the husband’s call to return was not sincere or bona fide. The wife categorically denies having taken away any of those things. There is nothing on record to show that the wife bad taken away the articles and property as alleged by the husband. If she had in fact not taken away any of those things, she would not be able to bring them back and it would give the husband convenient excuse to refuse to let her in, which actually happened when the wife recently went to husband’s house in compliance of the decree of restitution of conjugal rights obtained by the husband from the Civil Court at Surat. This latter episode will be dealt with latter in this judgment.
4. At a very early stage of the bearing, this Court felt that the parties were estranged too much and the chances of reconciliation appeared dim, yet this Court tried its utmost to bring about reconciliation between the husband and wife because the break up between them would harm the future of the two innocent children. Moreover, the wife herself as well as her parents and brothers, who attended the Court on almost all the dates of hearing for last about two years, showed great keenness for the reconciliation. The wife, when asked separately in the chamber whether she would be inclined to take divorce in view of the allegation that the husband was living with yet another woman named Miss Daksha Kansara by whom the respondent-husband is alleged to have one child and wife strongly refused to seek divorce and showed her willingness to stay with the respondent-husband even though he had another woman living with him and had a child by her. The parents of the wife also during the discussion in the chamber implored the respondent-husband to forgive them for any mistake they may have committed knowingly or unknowingly. The respondent-husband who mostly did not attend the Court under the pretext that he was serving and he could not get leave even on dates of hearing. After long persuasion and several adjournments, he attended the Court. In the chamber discussion, he alleged that he was insulted and harassed in the past by his wife’s parents and brothers. His strong feeling against one brother of the wife, who according to him, had particularly insulted and harassed him quite a lot. The brother who was present in the chamber, denied the allegation, but with a view to conciliation, had actually touched the feet of the husband and begged him to forgive so that his sister could go back to her husband’s house. It was indeed touching that the wife, her parents and brothers were imploring the husband for taking home his wife. The husband after considerable persuasion by the Court, agreed to take the wife with him. But soon after going out of the chamber, he told his Advocate Mr. Panwala that although he had agreed to take her in the presence of the Court but he does not really want to take her. The learned Advocate Mr. Panwala for the respondent-husband thereupon felt disgusted with his client and informed this Court that he will not appear in this matter any further as his client had given a false assurance to this Court to take away the wife and immediately after going out, he turned round and disclosed that under no circumstances will he take home his wife. In the circumstances, the Court granted permission to Mr. Panwala to retire. The respondent-husband thereafter engaged Mr. K.S. Zaveri who has appeared in this matter since then.
5. The conduct of the respondent-husband althroughout the hearing in this matter for more than two years, have been negative. Firstly, he did not want to attend the Court under one pretext or the other. Secondly, all suggestions for reconciliation were turned down by him on different grounds. Earlier also he had agreed to take the wife home on two or three occasions, he backed out subsequently. Once it was agreed by him before the Court that he will not take away the wife himself, but he will accept her when she comes accompanied by any of her relatives. The wife went there with her relatives but was not allowed to enter the house by the husband.
6. While he was behaving like this before this Court, he was also proceedings with an application for restitution of conjugal rights, which he filed in the Civil Court at Surat, probably as a counter-blast to the wife’s application for maintenance. Ultimately, he succeeded to obtaining a decree for conjugal rights recently. In view of the said decree and at the suggestion of this Court, the husband agreed that he will allow his wife to come to his house. The date and time was fixed by this Court and it was agreed that she will be accompanied by two of her relatives. Some apprehension with regard to safety of the wife was expressed by the wife’s relatives in view of the fact that there was alleged to be another woman in the husband’s house. Therefore the Court asked both husband and wife to file undertakings before this Court that the parties will maintain cordiality and there would be no danger to the life of either of them. In filing the said undertaking, the husband dilly-dalied for quite some time but ultimately he did file such an undertaking which is on the record of this case. But when the wife actually went to the husband’s house at the appointed date and time accompanied by them Police Sub Inspector of Salabatpura Police Station, Surat, on 30-8-1988 at about 8 00 A.M., the husband, as usual, refused entry to the wife. Once again the excuse was that she did not bring the jewellery, National Savings Certificate, costly clothes etc. which allegedly she had taken away. The wife had to come back a second time humiliated and in clear contravention of the husband’s assurance to this Court that he will accept the wife and inspite of the fact that he had obtained a decree of restitution of conjugal rights from the Court.
7. From the facts and circumstances of this case, it becomes absolutely clear that the husband had decided to abandon his wife long ago and that he was bent on not accepting her under any circumstance. His behaviour althroughout has been ungentlemanly. He does not give an impression of being sincere or reliable. Time and again he assured this Court of certain behaviour and subsequently acted quite contrary to it. It is understandable that he is in a difficult situation, as there is on allegation that he has another woman in the house and has begotten on issue by her. Accepting his wife in the same house would mean perpetual quarrels and possibly some violence which may result in injury to or even the death of one or other. But this predicament is of his own creation. Earlier there was an allegation regarding his association with a nurse called Miss Jyoti. Now it is Miss Daksha Kansara living with him. Be that as it may, the husband had a liability to maintain his lawfully married wife and children under Section 125 of Criminal Procedure Code. The husband cannot escape that liability to maintain by alleging that he was harassed by his wife and by resorting to the subterfuge of filing Hindu Marriage Petition for restitution of conjugal rights in a Civil Court. In the facts and circumstances of the case, it is abundantly clear that the petition for restitution of conjugal rights was filed with ulterior motive to avoid the liability to pay maintenance to the wife under Section 125 of Criminal Procedure Code. Looking to the record of the husband, it is quite possible that to avoid paying maintenance to the wife under this order, he may agree to take the wife for some time and torture or drive her out later. But the wife would be fully justified in refusing to live with the husband in view of the allegations that he is living with another woman and has an issue by her. In law, the position is absolutely clear that a wife can refuse to live with the husband and yet claim maintenance under Section 125 of Criminal Procedure Code, if he has re-married or is living in adultery with another woman. A wife has a right to exclusive association of her husband undefiled and unpoluted by any other woman.
8. The learned Metropolitan Magistrate Court No. 3, Ahmedabad, was clearly wrong in holding that the petitioner-wife was not entitled to maintenance under Section 125 of Criminal Procedure Code on the ground that she had not proved that the husband has failed and neglected to maintain her. The objective facts and circumstance including the correspondence on the record, very clearly show that the respondent-husband hag in fact and in law failed and neglected to maintain his wife and two children. Hence, the impugned judgment and order dated 7-12-1985 by the trial Court is set aside. It is held that the petitioner-wife is entitled to maintenance from the respondent-husband. As regards the quantum of maintenance allowance, there is a limit of Rs. 500 which the Court can allow under Section 125 of Criminal Procedure Code. It is strange that this amount has remained the same over decades although the cost of living has gone high enormously. There is an urgent need that this amount be suitably raised by a proper amendment by the Parliament. As the position stands today, the amount of maintenance allowance under Section 125 of Criminal Procedure Code, cannot exceed Rs. 500. The income of the husband is shown by producing the pay order which is produced on the record of the case and is not disputed by the other side. According to the pay order dated 29-10-1988, the respondent husband’s salary for the month of October, 1988 is Rs. 4,140 gross, out of which Rs. 420 are deducted for Provident Fund, E.S.I. Scheme, House Rent and Professional Tax. Thus, the respondent gets net amount of Rs. 3,720. In view of the limit set out in Section 125 of Criminal Procedure Code, a sum of Rs. 500 per month are directed to be paid by the respondent-husband to the petitioner-wife as maintenance allowance for herself from the date of her application before the trial Court. As regards the amount of maintenance for the children, the learned Magistrate has awarded a sum of Rs. 200 for each of the two children. In view of the high cost of living and in view of the education expenses of children, a sum of Rs. 200 for each of the two children does not seem to be adequate. Considering the income and status of the respondent-father, each child is entitled to the maintenance of Rs. 300 per month from the date of the application before the trial Court.
9. In the result, the Revision Application is allowed. The impugned judgment and order of the trial Court is set aside. The respondent-husband is directed to pay a sum of Rs. 500 per month to the petitioner-wife and Rs. 300 per month for each of the two children from the date of the application before the trial Court. The respondent-husband will also pay a Rs. 1,000 for costs to the petitioner-wife. The respondent husband will pay out the arrears within a period of two months from today. Rule made absolute.
10. At this stage, Mr. Zaveri brings it to the notice of this Court that the respondent-husband has been paying a sum of Rs. 400 per month in the Hindu Marriage Petition which may be taken into account while computing the arrears of maintenance. The request is reasonable and is granted. While computing the arrears of maintenance of the petitioner-wife, the amounts which have been paid by the respondent-husband will be taken into account and the balance amount will be payable by the respondent-husband.