PETITIONER: MAJOR ASHOK KUMAR SINGH Vs. RESPONDENT: VITH ADDL. SESSIONS JUDGE,VARANASI AND OTHER DATE OF JUDGMENT06/09/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1996 AIR 333 1996 SCC (1) 554 JT 1995 (7) 151 1995 SCALE (5)422 ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
This appeal by special leave arises from the order of
the Single Judge dated December 17, 1990 of the High Court
of Allahabad made in Civil Misc. W.P. No.706 of 199. The
undisputed facts are that the appellant and Mrs. Geeta, the
respondent, are legally married couple. Their marriage was
solemnized on November 22, 1981. The respondent laid the
proceedings under Section 125 of the Code of Criminal
Procedure, 1973 [for short,`the Code’] on July 14, 1987 for
maintenance on the ground that the appellant is impotent and
he neglected her and that, therefore, she claimed
maintenance for separate residence from the appellant. The
learned magistrate awarded a sum of Rs.500/- per month
w.e.f. the date of filing of the petition. On revision the
Sessions Judge confirmed the same. The High Court dismissed
the writ filed under Article 226 of the Constitution of
India by the impugned order. Thus, this appeal by special
leave.
The only question raised by Shri S.C. Birla, the
learned counsel for the appellant, is that the appellant had
not neglected to maintain Mrs. Geeta. The very foundation
for claiming maintenance under s.125 of the Code is that the
appellant had neglected to maintain the respondent and that
the respondent was not having sufficient means for her self
maintenance. We are unable to agree with the appellant.
Section 125(1) of the Code envisages that:
“(1) If any person having sufficient
means neglects or refuses to maintain-
(a) his wife, unable to maintain
herself, or
(b) xxxxxxxxxxxxxxxx
(c) xxxxxxxxxxxxxxxx
(d) xxxxxxxxxxxxxxxx
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 not exceeding five
hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the
same to such person as the Magistrate
may from time to time direct.”
The courts below found as a fact that the appellant was
impotent and he was not capable of giving sexual
satisfaction to the respondent, in consequence, it amounts
to cruelty and that, therefore, the respondent is entitled
to live separately from the appellant. Since she was unable
to maintain herself, she is entitled to seek maintenance
from the appellant. We find that the view taken by the High
Court is well justified. The controversy is no longer res
integra.
In Sirajmohmedkhan Janmohanadkhan vs. Hafizunnisa
Yasinkhan and Anr. [(1982 1 SCR 695], this Court considered
the questing arising in the proceedings under s.125 itself.
This court held that:
“If this is so, can it be said by any
stretch of imagination that where a wife
refuses to live with her husband, if he
is impotent and unable to discharge his
marital obligation, this would not be a
just ground for refusing to live with
her husband when it seems to us that the
ground of impotence which had been held
by a number of authorities under the
civil law to be a good ground not only
for restitution of conjugal rights but
also for divorce. Indeed, if this could
be a ground for divorce or for an action
for restitution of conjugal rights,
could it be said with any show of force
that it would not be a just ground for
the wife to refuse to live with her
husband. The matter deserves serious
attention from the point of view of the
wife. Here is a wife who is forced or
compelled to live a life of celibacy
while staying with her husband who is
unable to have sexual relationship with
her. Such a life is one of the perpetual
torture, which is not only mentally or
psychologically injurious but even from
the medical point of view, is
detrimental to the health of the woman.
Surely, the concept of mental cruelty
cannot be different in a civil case and
in a criminal case when the attributes
of such a cruelty are the same.
xxxx xxxx xxx
We hold that where it is proved to
the satisfaction of the court that a
husband is impotent and is unable to
discharge his marital obligations, this
would amount to both legal and mental
cruelty which would undoubtedly be a
just ground as contemplated by the
aforesaid proviso for the wife’s refusal
to live with her husband and the wife
would be entitled to maintenance from
her husband according to his means.”
Accordingly, it was held that the wife would be
entitled to maintenance under s.125 (1) of the Code. The
woman would go to the marital home of her husband, with a
fond hope and expectation that she would have not only a
happy but also peaceful conjugal society with her husband.
When she found that her husband is unable to perform sexual
obligation, which is one of the important factors to cement
bondage of affection and cordial relationship in marital
home, it would be perpetual agony for the wife to continue
to live in peace in the conjugal home. Cruelty is a ground
for divorce or judical separation in civil law. Under these
circumstances, she would be well justified to live
separately with the husband and at the same time keep
maintaining married status.
It is seen that in the letter addressed on June 27,
1985 by the appellant himself to his father-in-law, he had
stated that “the root cause of their problem” with the
respondent “is failure of sexual life”. He admitted therein
that his father-in-law advised him to read certain
literature thereon. In his cross-examination he admitted
that his wife had advised him medical treatment. It would
mean that apart from other problems that had come in their
way, the main problem is the failure on his part of sexual
life. It would be seen that the respondent had not
immediately rushed to severe her marital relations with the
appellant. She had sufficiently waited for long time to see
whether there would be any improvement in the potency of the
appellant. Having found no hope, she chose to live
separately from the appellant. Therefore, it could safely be
concluded that the respondent having tried all means to
sustain the marital relations but having found that it was
impossible for the appellant to gain potency, she had chosen
to live apart from the appellant. Therefore, there was
sufficient ground for the wife to live separately.
It is next contended for the appellant that the
respondent had sufficient means and she can live herself
comfortably and is thus not entitled to claim any
maintenance from the appellant. We find no force in the
contention. It is seen that the appellant is an Army officer
and is having sufficient means to maintain his wife. The
amount of Rs.500/- per month being the maximum provided
under the Code, the learned Magistrate is well justified,
under the circumstances, to award this meagre sum to the
respondent towards her maintenance.
The appeal is accordingly dismissed.