ORDER
K. Hema, J.
1. Can the court dismiss a petition for maintenance filed under Section 125 of the Code of Criminal Procedure ('the Code', for short), on the ground that a decree is passed against the wife, in a petition for restitution of conjugal rights
2. The revision petitioners are the wife and minor son of the respondent herein. They filed petition before the Family Court, claiming maintenance from respondent, under Section 125 of the code. The claim made by the wife was rejected, but maintenance was ordered in favour of the child at the rate of Rs. 500/- per month. The challenge in this revision is only against rejection of maintenance to the wife. It is made clear at the time of hearing that the quantum of maintenance allowance ordered in favour of the child is not being challenged.
3. The parties were married in 1998 and the second petitioner was born in the wedlock. The respondent is having sufficient means as he is engaged in stone-quarrying. He earns Rs. 50,000/- per month out of his work. He allegedly neglected the wife and child and did not even meet any necessary expenses. She left the house of the husband along with her child because of the cruelty inflicted by her husband at his house when they were living together. The petitioner is unable to maintain herself and she claimed Rs. 500/ - per month as monthly maintenance from the respondent. The respondent filed a counter statement and denied all the allegations. His case is that the first petitioner is refusing to live with him, without any valid reason. He also disputed the sufficiency of means and also the alleged neglect.
4. The respondent filed a petition against the first petitioner before the same court, seeking restitution of conjugal rights. It was tried simultaneously with the maintenance case. In the said petition, the trial court found that the first petitioner 'is living separately from her husband without any valid reason' and hence, directed the first petitioner to resume conjugal relationship with the respondent. According to the Family Court, the said order is binding is on the parties and hence, there is no necessity to consider 'the question regarding the separate living of the parties in this petition again'. The claim made by the wife for maintenance was rejected on the above ground. Is it correct, legal or proper?
5. To answer this question, an in-depth reading of Section 125 of the Code is essential. Section 125 reads as follows:
Section 125: Order for maintenance of wives, children and parents.- (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 abnormally 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:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application such person.
Explanation.- For the purposes of this Chapter,-
(a) 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is deemed not to have attained his majority:
(b) 'wife' inc ludes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, of so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the, case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance or the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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:
Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that it such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing,
Explanation - If a husband had contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
6. A reading of Section 125 of the Code shows that they only provision in the code which enables or empowers the court to pass an order for maintenance in favour of the wife is Sub-section (1) of Section 125 of the Code. None of the other Sub-sections of Section 125 deals with powers of the court to 'Grant' maintenance in favour of the wife. As per Section 125(1), if a husband having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself ('wife' includes a divorced or divorcee wife who has not remarried) and 'upon Proof of such Neglect or Refusal', such husband may be ordered to make a monthly allowance for the maintenance of his wife and to pay the same to her.
7. Going by the plain language in Sub-section (1) of Section 125 of the Code, only three factors are to be established for passing an order against the husband to pay maintenance allowance in favour of the wife. Those three factors are; i) that the 'wife' is unable to maintain herself ii) that her husband is having sufficient means iii) that such husband neglected or refused to maintain the wife. Section 125 does not envisage establishment of any other factor than the above-said three factors, to pass order for maintenance allowance in favour of the wife, under Sub-section (1) of Section 125. If the above three factors are established, the curt is bound to pass an order in favour of the wife for maintenance allowance.
8. The Supreme Court, while considering the scope of Section 125 of the Code, in Begum Subanu v. A.M. Abdul Gafoor held as follows:
The three essential requisites to be satisfied before an.order of maintenance can be passed are that (1) the person liable to provide maintenance has sufficient means; (2) that he has neglected or refused to maintain and (3) the dependant/dependents is/are unable to maintain himself/herself/themselves as the case may be.
In Mohd. Ahmed Khan v. Shah Bano Begum : 1985CriLJ875 the Supreme Court held,
Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves.... Neglect by a person of sufficient means to maintain these and the inability of those persons to maintain themselves are the objective criteria which determine the applicability of Section 125.
(emphasis supplied)
9. But, the trial court trial court rejected the claim of the petitioner for maintenance, on the ground that an order was passed against the wife for restitution of conjugal rights, holding that the wife was living separately from her husband, without any valid reason. There is nothing in Section 125 of the code to show that if the husband obtains an order for restitution of conjugal rights against the wife, the court can reject the claim of the wife for maintenance on that sole ground. None of the Sub-sections of Section 125 also provides that the court can dismiss the petition for maintenance, if the wife is living separately from the husband without any valid reasons.
10. Of course, the scope of Section 125(4) of the code requires a detailed consideration in this context. It is laid down Section 125(4) that no wife shall be entitled to 'receive' an allowance for the maintenance if, without any sufficient reason, she refuses to live with her husband. Even if it is taken for arguments sake that Section 125(4) will be a bar for a wife to claim maintenance under certain circumstances referred to therein, it is clear from the provision itself that the bar applies only if there is refusal to live.
The expression used in Section 125(4) is 'Refusal' to live and not, 'Failure to live' with the husband. There is evidently some difference between 'failure' to live with the husband and 'refusal' to live with the husband. 'Failure' means, 'not doing something that one is expected to do'. A wife is expected to live with the husband and if she does not do so, there is a failure on her part do so. But 'refusal' means, 'an act of saying or showing that you will not do or accept something which is offered'. 'Offer' means 'to say that one is willing to do something for somebody'. Therefore, if a husband says he is willing to do something for her i.e., wife is 'offered' something but she states or shows that she does not want or accept that something, which is offered to her, then only, there is 'refusal'.
11. For example, if the husband tells the wife that he will look after her affectionately and will not trouble her any more if she comes and lives with him and asks her to come back, (as usually done in a case where the wife leaves the husband's house) there is an 'offer'. But, it the wife then says or shows that she is not returning to the matrimonial house, without accepting the offer, there is 'refusal'. To cite another example, if the husband tells the wife that he will maintain the wife on condition of her living with him, then also there is an 'offer' (vide Section 125(3) of the code). If the wife says she is not prepared to come and live with him, despite such offer, there is 'Refusal' on the part of the wife to live with him. But, if the husband asks the wife to come back, without any offer, there is only a mere request or invitation and not any offer. Consequently, the failure to go back does not constitute 'refusal'.
12. Thus, 'refusal' pre-supposes an offer whereas, in the case of 'failure', there may not be any offer. But, what is relevant under Section 125(4), is a 'refusal to live' with the husband and not mere 'failure to live' with him. A mere 'request' made by the husband to the wife or an invitation to her to come and stay with her, in the absence of any willingness on the part of the husband to do something, does not involve an offer or a' refusal'. A 'refusal' by the wife arises when there is a willingness on the part of the husband to do something for the wife and he offers to do it for her yet, she does not accept such offer.
13. Therefore, it is not mere living separately from the husband without sufficient cause or reason which is relevant under Section 125(4) of the code. It is not the mere 'failure to live' with the husband which leads to the fatal consequence under Section 125(4) and (5) of the code. But, it is the 'REFUSAL' to live with the husband as discussed above which results in the consequence of disentitlementto receive maintenance allowance under Section 125(4). So, there must be materials before the court to show that there was an offer by the husband and a refusal to live with him and only such refusal will disentitle the wife to receive maintenance allowance from her husband.
14. In a petition for restitution of conjugal rights, the offer by a spouse and the refusal by the other may not always arise. What is to be decided there is whether the wife has 'withdrawn' from the society of the husband without any without reasonable excuse or not. Such 'withdrawal' from the society of the husband is evidently different from 'refusal' to live with the husband, as discussed above. What is relevant under Section 125(4) of the code is not 'withdrawal' from the society of the husband but it is 'refusal' to live with him. Therefore, it will not be legal to dismiss a petition for maintenance under Section 125 of the code, on the ground that a decree for restitution of conjugal rights is passed against the wife or that in that proceedings, it is held that the wife is 'living separately from the husband without valid reasons'. Such living involves only a 'failure' to live and not a 'refusal' and therefore, the claim of the wife cannot be rejected on the basis of such failure.
15. Even if there is 'failure' on the part of the wife to live with the husband, such mere failure may not be of any consequence in a petition under Section 125 of the code. If there is only mere failure to live with the husband, Section 125(4) of the code will not be a bar for a wife to 'receive' maintenance allowance, because what is crucial under the said provision is 'refusal' to live with the husband without sufficient reason and not 'failure' to live to with the husband. It is reminded by the Supreme Court in several context that 'the provision under Section 125 cannot be utilised for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of social environment', vide Savitaben Somabhai Bhatiya v. State of Gujarat : 2005CriLJ2141 .
16. While interpreting the scope of any of the Sub-section of Section 125 in the code, the courts must ensure that the rights of the weaker Section of the society are protected and not defeated, without taking care to understand the import of each and every word, which the legislature has so carefully chosen and used in a provision in a particular context. Hence, in my humble view, the expression 'Refusal to live' is not mere 'petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker Sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternative which advance the cause - the cause of the derelicts' vide Capt. Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 authored by His Lordship V.R. Krishna Iyyar, J.
17. In Kirtikant D. Vadodaria v. State of Gujarat : (1996)4SCC479 , it was held that 'having regard to this special object the provisions of Section 125 of the Code have to be given a liberal construction to fulfil and achieve this intention of the legislature'. Therefore, keeping the object which the legislature seeks to achieve, going even by the plain language of Section 125 of the code itself, I find that the decree passed against the wife for restitution of conjugal rights by itself will not defeat her right to get an order under Section 125(1) of the Code. The mere failure of the wife to live with the husband by itself will not be sufficient to disentitle a wife to receive maintenance allowance from her husband, especially since the crucial word carefully chosen in the relevant provision is 'refusal'.
18. Learned Counsel for the petitioner cited a few decisions to argue that the order passed in restitution of conjugal rights is not sufficient to reject the maintenance claim. Those are reported in Usha v. Kunjumon 2002 (2) KLT SN 107, Halza Pashava v. Gulzar Banu 2002 (2) KLT 773 and in Gopala Pilla v. Padmikni Amma 1978 KLT 485. But the dictum laid down in those decisions are clearly distinguishable on facts. In one of the cases the court found that the order passed in the petition for restitution of conjugal rights was an ex-parte order and it was a case where the wife could not even contest because of the incapacity and hence it was held that 'the ex parte decree for restitution of conjugal rights obtained by the petitioner against his wife is not an absolute bar to the consideration of the petition under Section 125 of the Crl.P.C.' In another case, the marriage was established and hence it was found that the decree of restitution of conjugal rights is not quite relevant.
19. In yet another case, this court held that it is unnecessary to prove sufficient reason for refusal to live, since she is not in any obligation to live with the husband. It was a case of a divorced wife and hence it was held in 1978 KLT 485 that 'an order for restitution of conjugal rights by itself is not a ground for refusal of maintenance under Section 125 of the Code of Criminal Procedure unless it is made out that the person in whose favour it was made was willing to discharge his obligations as a husband and did not secure the order as a ruse to get rid of the wife in a subsequent proceeding for divorce'. But, there is no contention for the wife in this case that the decree was obtained as a ruse to get rid of the wife and hence, this decision also cannot be applied to the facts of this case.
20. Now coming to the facts, I find that the lower court held that the husband has sufficient means. There is nothing on record to show that the wife is able to maintain herself. The wife established by satisfactory evidence that she is unable to maintain herself and the husband could not bring any thing on record to show that she is able to maintain herself.
21. Petitioner contended that herself and the child were neglected to be maintained by the husband, even while they were living with the respondent. There is also nothing on record to show that the wife was maintained by the husband at least after she started living separately from him. The husband has no case that he paid any amount as maintenance to the wife or the child, after their separation. In fact, his case is, he is not under any obligation to maintain the wife since she is living separately from him. Having not established that she was refusing to live with her husband, he cannot shirk off his obligation or responsibility to maintain the wife. Even if the wife was withdrawn from the society of her husband without sufficient reason, unless there is proof that there is a refusal by wife, husband cannot absolve himself from his liability to pay maintenance under Section 125(1) of Cr.P.C. In such circumstances, the court below ought to have granted maintenance in favour of the child, since the neglect was established.
22. Thus, having established all the requirements of Section 125(1) of the code and the court below ought not to have rejected the petition filed by the petitioner, particularly in the absence of any legally sustainable ground to reject the claim made by the petitioner. As already held by me, the decree passed in the petition for restitution of conjugal rights by itself, is not sufficient to deny maintenance to the wife. The considerations in a petition for restitution for conjugal rights and a petition for maintenance under Section 125(1) Cr.P.C. are totally different. The court below committed an illegality in refusing maintenance to the wife without taking note of the difference. The petitioner is entitled to get an order for maintenance allowance from her husband and the order rejecting her claim is unsustainable.
In the result, considering the means of the husband, the need of the wife, the long period of the neglect etc., I pass an order directing the respondent-husband to make and pay maintenance allowance at the rate of Rs. 500/- per month from the date of disposal of the maintenance petition by the curt below.
It is however, made clear that if the respondent makes any 'offer' as referred to in Section 125(3) of the code, it will be still open to the court below to consider the same at that stage and pass appropriate orders. There will be also no bar for the respondent to apply for cancellation of this order under Section 125(5), if there are sufficient grounds to do so, and if so advised.
The Revision Petition is allowed.