Supreme Court of India
Rina Kumari @ Rina Devi @ Reena vs Dinesh Kumar Mahto @ Dinesh Kumar Mahato on 10 January, 2025
Author: Sanjay Kumar
Bench: Sanjay Kumar
2025 INSC 55 Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. ………….. of 2025
(@ Special Leave Petition (Crl.) No. 5896 of 2024)
Rina Kumari @ Rina Devi @ Reena … Appellant
Versus
Dinesh Kumar Mahto @ Dinesh Kumar Mahato
and another .… Respondents
JUDGMENT
SANJAY KUMAR, J
1. Leave granted.
2. Will a husband, who secures a decree for restitution of conjugal
rights, stand absolved of paying maintenance to his wife by virtue of
Section 125(4) of the Code of Criminal Procedure, 1973, if his wife
refuses to abide by the said decree and return to the matrimonial home?
3. This intriguing question was answered in the affirmative by a
learned Judge of the Jharkhand High Court, vide order dated 04.08.2023
Signature Not Verified
in Criminal Revision No. 440 of 2022. Aggrieved, Rina Kumari @ Rina
Digitally signed by
babita pandey
Date: 2025.01.10
17:58:47 IST
Reason:
Devi @ Reena, the wife, is in appeal.
1
4. The appellant, Reena, and respondent No. 1, Dinesh Kumar
Mahto @ Dinesh Kumar Mahato, were married on 01.05.2014. They
parted ways in August, 2015, and Reena started living at her parental
home. Original (MTS) Suit No. 495 of 2018 was instituted by Dinesh on
20.07.2018 before the Family Court, Ranchi, under Section 9 of the
Hindu Marriage Act, 1955, for restitution of conjugal rights. Reena
contested the suit by filing her written statement on 25.04.2019. Dinesh
claimed that Reena left the matrimonial home on 21.08.2015 and did not
return thereafter. According to him, attempts were made during August
and October, 2017, to bring her back but she refused to come. He stated
that his parents were very old and needed to be taken care of but Reena
was not there to do so. On the contrary, Reena asserted that she was
subjected to torture and mental agony by Dinesh, who demanded ₹5
lakh to purchase a four-wheeler. She alleged that he had extramarital
relations. Further, she stated that she suffered a miscarriage on
28.01.2015 but Dinesh did not even come to see her from his workplace
at Ranchi and it was her brother who took her to Dhanbad for medical
care. She claimed that it was Dinesh who persuaded her to go to her
parental home in August, 2015, on the occasion of Raksha Bandhan and
he never truly tried to bring her back thereafter. She claimed that it was
she who had gone to her matrimonial home in the year 2017 along with
her relations but they were forced to return as Dinesh and his family
2
members treated them badly. She stated that she was ready to return to
her matrimonial home if Dinesh did not demand money to purchase a
car and if she was not ill-treated by him and his family members. Her
further conditions were that she should be allowed to use the
washroom/toilet in the house, as she was not allowed to do so earlier,
and she should also be allowed to use an LPG stove to prepare food, as
she had to do so by using wood and coal hitherto. She concluded her
written statement by asserting that the suit for restitution filed by Dinesh
was nothing but a tool to save himself from the effect of laws which were
put in place for women’s safety and prayed that the suit be dismissed
with costs. Reena, despite filing the above written statement, failed to
appear thereafter before the Family Court.
5. By judgment dated 23.04.2022, the learned Additional Principal
Judge-II, Additional Family Court, Ranchi, decreed Dinesh’s suit for
restitution of conjugal rights. Therein, it was noted that Dinesh had
attempted to bring his wife back only once but, relying on the evidence
of his witnesses, the Family Court concluded that he wanted to live with
her as husband and wife. As no evidence was adduced by Reena, the
Family Court held against her as regards her allegation that Dinesh
demanded ₹5 lakh to purchase a car and her allegation of ill treatment
and torture by him and his family members. As to her two conditions, the
Family Court noted that Dinesh was a Junior Lineman in Jharkhand
3
State Electricity Board and observed that he would be expected to
provide an LPG stove to his wife to prepare food. Opining that there
must be something more serious than the ordinary wear and tear of
married life for a wife to withdraw from the society of her husband, the
Family Court held in Dinesh’s favour. He was, however, directed to
ensure the respect and dignity of his wife and to see that her conditions
with regard to cooking and toilet facilities were complied with. Reena
was directed to resume conjugal life with Dinesh within two months.
Admittedly, Reena did not abide by this decree.
6. Significantly, in the meanwhile, on 10.08.2018, Reena lodged a
complaint under Section 498A IPC against Dinesh, in C.P. Case No.
3270 of 2018. As a result of this, he was sent to prison and was
consequently suspended from service for some time. The case is stated
to be pending. Thereafter, on 03.08.2019, Reena instituted Original
Maintenance Case No. 454 of 2019 against Dinesh seeking
maintenance under Section 125 of the Code of Criminal Procedure,
1973 (for brevity, ‘the Cr.P.C.’). This case was allowed by the learned
Principal Judge, Family Court, Dhanbad, vide order dated 15.02.2022,
i.e., before the decretal of Dinesh’s suit for restitution. Therein, the
Family Court noted Dinesh’s stand that he was ready and willing to keep
Reena with full dignity but held, on the evidence adduced, that she was
entitled to maintenance. Dinesh’s pay-slip (Ex-3) revealed that he was
4
working as a Junior Engineer in the Electricity Board and his net salary,
after deductions from the gross salary of ₹62,000/-, was ₹43,211/-. The
Family Court held that Dinesh, despite having sufficient means, had
neglected to maintain his wife, who was unable make ends meet on her
own. The petition was accordingly allowed and Dinesh was directed to
pay ₹10,000/- per month to Reena towards maintenance. Such
maintenance was held payable from the date of the application, i.e.,
03.08.2019, and the arrears were directed to be paid within two months.
7. Challenging this order, Dinesh filed Criminal Revision No. 440
of 2022 before the Jharkhand High Court. A learned Judge allowed the
revision by the impugned judgment dated 04.08.2023. Therein, the
learned Judge noted that Reena, who deposed as PW-1, was not even
cross-examined by Dinesh. Similarly, the other two witnesses who
appeared on her behalf were also not subjected to cross-examination. In
her deposition, Reena asserted that she was not working and this was
confirmed by her brother, Dilip Kumar Mahato (PW-3), who stated that
she was completely dependent upon him. Dinesh, in his own cross-
examination, denied that it was due to his assault that his wife suffered a
miscarriage. He also denied that he had demanded ₹5 lakh in dowry.
He, however, admitted that Reena suffered an abortion and that he did
not bear any expense in that regard. It was submitted on behalf of
Dinesh, that he was ready to pay ₹5,000/- per month to Reena, but not
5
from the date of filing of the maintenance petition, as he was suspended
from service during that period owing to his being in judicial custody in
relation to the Section 498A IPC case instituted by her. The learned
Judge, however, noted that there was a specific finding in the judgment
dated 23.04.2022 in Original (MTS) Suit No. 495 of 2018 that Reena had
withdrawn from her husband’s society without reasonable excuse and
that she had not returned to the matrimonial home despite the said
decree for restitution of conjugal rights, which she had not even chosen
to challenge by way of appeal. The learned Judge, therefore, reasoned
that Section 125(4) Cr.P.C. would come to Dinesh’s aid and, in
consequence, Reena would not be entitled to maintenance. Hence, the
learned Judge allowed the revision.
8. Before proceeding to consider the matter on merits, it would be
apposite to take note of the statutory scheme. Chapter IX of the Code of
Criminal Procedure, 1973, is titled ‘Order for Maintenance of Wives,
Children and Parents’ and comprises Sections 125 to 128. Section
125(1) Cr.P.C. provides to the effect that, if any person having sufficient
means neglects or refuses to maintain his wife or his legitimate or
illegitimate children, falling in the prescribed categories, or his parents,
who are all unable to maintain themselves, a Magistrate of the first class
may, upon proof of such neglect or refusal, order such person to pay a
monthly allowance, as thought fit, for their maintenance. Notably, Section
6
125 Cr.P.C. is not of recent origin. It is analogous to and in continuance
of Section 488 of the erstwhile Code of Criminal Procedure, 1898.
9. In its 41st Report submitted on 24th September, 1969, the Law
Commission of India, while adverting to Section 488 of the Code of
Criminal Procedure, 1898, observed that the primary justification for
placing provisions relating to maintenance of wives and children, which
is a civil matter, in the Criminal Procedure Code was that a remedy,
speedier and more economical than that available in the Civil Courts, is
provided to them. The Law Commission noted that the provision was
aimed at preventing starvation and vagrancy, leading to commission of
crime.
10. On the same lines, in Chaturbhuj vs. Sita Bai1, this Court
observed that the object of maintenance proceedings is not to punish a
person for his neglect but to prevent the vagrancy and destitution of a
deserted wife, by providing her food, clothing and shelter by a speedy
remedy. It was held that Section 125 Cr.P.C. is a measure of social
justice, especially enacted to protect women and children, falling within
the constitutional sweep of Article 15(3) reinforced by Article 39 of the
Constitution. Thus, the objective of the provision, then and now, is to
alleviate the financial plight of destitute wives, children and now, parents,
who are left to fend for themselves.
1
(2008) 2 SCC 316
7
11. In Bhuwan Mohan Singh vs. Meena and others2, this Court
observed that Section 125 Cr.P.C. was conceived to ameliorate the
agony, anguish and financial suffering of a woman, who left her
matrimonial home for the reasons provided in the provision, so that
some suitable arrangement can be made by the Court and she can
sustain herself and also her children, if they are with her. It was held that
the concept of sustenance did not necessarily mean ‘to lead the life of
an animal, feel like an unperson to be thrown away from grace and roam
for her basic maintenance somewhere else’ and the wife would be
entitled in law to lead a life in a similar manner as she would have lived
in the house of her husband. This Court further cautioned that, in a
proceeding of this nature, the husband cannot be permitted to take
subterfuge to deprive the wife of the benefits of living with dignity and
there could be no escape route, unless there is an order from the Court
that the wife is not entitled to get maintenance from the husband on
legally permissible grounds.
12. Earlier, in Badshah vs. Urmila Badshah Godse and another 3,
this Court held that the provision of maintenance aims at empowering
the destitute and achieving social justice or equality and dignity of the
individual and while dealing with cases thereunder, the drift in the
approach from adversarial litigation to social context adjudication is the
2
(2015) 6 SCC 353
3
(2014) 1 SCC 188
8
need of the hour. More recently, in Rajnesh vs. Neha and another 4, this
Court emphasized that maintenance laws were enacted as a measure of
social justice to provide recourse to dependent wives and children for
their financial support, so as to prevent them from falling into destitution
and vagrancy.
13. In Shamima Farooqui vs. Shahid Khan5, this Court noted that
the inherent and fundamental principle behind Section 125 Cr.P.C. is the
amelioration of the financial state of affairs as well as the mental agony
and anguish that a woman suffers when she is compelled to leave her
matrimonial home. It was further observed that, as per law, she is
entitled to lead life in a similar manner as she would have lived in the
house of her husband and as long as she is held entitled to grant of
maintenance within the parameters of Section 125 Cr.P.C., it has to be
adequate so that she can live with dignity. Lastly, it was noted that, a
plea is sometimes advanced by the husband that he does not have the
means to pay as he does not have a job or his business is not doing
well, but these are only bald excuses and, in fact, they have no
acceptability in law as a husband, who is healthy, able-bodied and in a
position to support himself is under a legal obligation to support his wife
and her right to receive maintenance under Section 125 Cr.P.C., unless
disqualified, is an absolute right.
4
(2021) 2 SCC 324
5
(2015) 5 SCC 705
9
14. Such disqualification, by way of an exception, was envisaged
under Section 488(4) of the old Code, which is replicated, almost
verbatim, in Section 125(4) Cr.P.C. It reads thus:
“Section 125
(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,] [Substituted by Act 50 of 2001,
Section 2 for “allowance” (w.e.f. 24-9-2001)] from her husband
under this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if they
are living separately by mutual consent.”
15. The issue, presently, turns upon the applicability of Section
125(4) Cr.P.C. to the case on hand. The question as to whether non-
compliance with a decree for restitution of conjugal rights by a wife
would be sufficient in itself to deny her maintenance, owing to Section
125(4) Cr.P.C, has been addressed by several High Courts but no
consistent view is forthcoming, as their opinions were varied and
conflicting.
16. In K. Narayana Rao vs. Bhagyalakshmi 6, the Karnataka High
Court observed that the Court dealing with a maintenance claim under
Section 125 Cr.P.C. has to carefully examine and take into consideration
the decree for restitution of conjugal rights which has not been complied
with by the wife but it would not be bound by all the findings therein,
including findings on questions, such as, whether the wife withdrew from
the society of the husband; desertion on her part; or her leading an
6
1983 SCC OnLine Kar 190 = (1984) 1 Kant LJ 451 = 1984 Cri LJ 276 (Kant)
10
adulterous life. Reference was made to Fakruddin Shamsuddin
Saiyed vs. Bai Jenab7, wherein the Bombay High Court had held that
the Magistrate should not ‘surrender his own discretion’ simply because
the husband was armed with a decree for restitution of conjugal rights.
17. In Sampuran Singh vs. Gurdev Kaur and another 8, the
Punjab & Haryana High Court observed that a wife can still claim
maintenance in the presence of a decree for restitution of conjugal rights
if the conduct of the husband is such that it obstructs her from obeying
the decree.
18. In Amina Mohammedali Khoja vs. Mohammedali Ramjanali
Khoja and another9, the Bombay High Court noted that an order of
maintenance can always be passed in favour of a wife even if her
husband obtained a decree for restitution of conjugal rights, unless it is
established that she willfully deserted her husband and was not willing to
stay with him without reasonable cause or sufficient reason. On facts, it
was found that the record did not show that the wife had deserted the
husband and was unwilling to stay with him without reasonable cause or
sufficient reasons. It was further noted that, after obtaining the decree,
the husband had not taken any effective steps to get the decree satisfied
as he had made no genuine, honest and sincere efforts to see that his
7
AIR 1944 Bom 11
8
Criminal Revision No. 1562 of 1983, decided on 17.01.1985 = 1985 Cri LJ 1072 (P&H)
9
1985 SCC OnLine Bom 99 = 1985 Cri LJ 1909
11
wife comes back to him. It was, therefore, held that he was only
interested in a paper decree for restitution of conjugal rights, which he
had gotten ex parte.
19. In Kavungal Kooppakkattu Zeenath vs. Mundakkattu
SulfikerAli10, the Kerala High Court noted that the expression used in
Section 125(4) Cr.P.C. is ‘refusal’ and not ‘failure’ to live with the
husband and that there is evidently some difference between the two. It
was held that ‘failure’ would mean not doing something that one is
expected to do but ‘refusal’ would mean saying or showing that one
would not do or accept something which is offered. In effect, if a
husband says he is willing to do something for the wife but she states or
shows that she does not want or accept that something which is offered
to her, then only there is refusal.
20. In Subal Das vs. Mousumi Saha (Das) and another 11, the
Tripura High Court held that a wife who refuses to comply with a decree
for restitution of conjugal rights cannot be deprived of maintenance
under Section 125(4) Cr.P.C. It was observed that it would be
incongruent to assume that a wife against whom a decree for restitution
has been passed is disentitled to maintenance while a wife who has
been divorced can still claim the same. It was further observed that the
Civil Court’s judgment for restitution can only be treated as relevant
10
2008 SCC OnLine Ker 78 = (2008) 3 KLJ 331
11
2017 SCC OnLine Tri 175 = Criminal Revision Petition No. 89 of 2016, decided on 25.07.2017
12
evidentiary material but the conduct of the wife, i.e., whether she had
sufficient reason to refuse to live with the husband, has to be assessed
by the Magistrate and only thereafter, it could be decided whether she
would be entitled to maintenance or not. It was concluded that the
restriction imposed by Section 125(4) Cr.P.C. had been substantially
diluted, if not virtually negated.
21. In Babita vs. Munna Lal12, the Delhi High Court opined that an
ex parte decree for restitution of conjugal rights would not automatically
put an end to the wife’s right to maintenance under Section 125 Cr.P.C. It
was held that, even if such a case is contested by the wife and is
decided in the husband’s favour, non-compliance therewith could be
taken to be a ground to deny maintenance, provided the Court is
satisfied on the strength of evidence that the wife had no justifiable
grounds to stay away from the husband. The mere presence of a decree
for restitution of conjugal rights was, therefore, held insufficient to
disentitle a wife from claiming maintenance, if the conduct of the
husband is such that she is unable to obey such a decree or if the
husband creates such circumstances that she cannot stay with him. It
was noted that even a divorced wife is entitled to maintenance under
Section 125 Cr.P.C. and it would be improper and unfair to deny
12
2022 SCC OnLine Del 4933 = Criminal Revision Petition No. 1001 of 2018, decided on
22.08.2022
13
maintenance to a wife merely because she refused to cohabit with the
husband, despite having sufficient grounds therefor.
22. In Shri Mudassir vs. Shirin and others 13, the Bombay High
Court noted that mere readiness and willingness on the part of the
husband to cohabit with the wife would not be sufficient to absolve him of
the liability to pay maintenance, by projecting that the wife left his
company without sufficient reason. It was held that if the grounds
justified the wife and children staying away from the husband, Section
125(4) Cr.P.C. would have no application.
23. In its recent judgment in Smt. S.R. Ashwini vs. G. Harish14, the
Karnataka High Court held that there is nothing in law to bar the grant of
maintenance under Section 125 Cr.P.C. even if a decree for restitution of
conjugal rights is secured by the husband. It was noted that, at the most,
such a decree would enable the husband to take that defence in the
maintenance proceedings initiated by the wife but, for the Court, it would
not be the sole factor to refuse maintenance to her. In the result, it was
held that a petition under Section 125 Cr.P.C. could be considered on its
own merits independently, without being influenced by the decree for
restitution of conjugal rights. It was further held that, even if there is a
decree for restitution of conjugal rights, and the wife still does not choose
to join the matrimonial home that would not amount to voluntary
13
Criminal Revision Application No. 268 of 2022, decided on 09.02.2023
14
NC: 2024: KHC: 14466 = RPFC No.104 of 2018, decided on 23.02.2024
14
refusal/desertion which would bar her claim to maintenance under
Section 125 Cr.P.C.
24. On the other hand, the Gujarat High Court, in Girishbhai
Babubhai Raja vs. Smt. Hansaben Girishchandra and another 15,
observed that when the Civil Court orders the wife to go and stay with
her husband and fulfil her marital obligations, it presupposes that she
has no justification to be away from the husband and refuse to perform
her corresponding marital obligations.
25. A similar view was taken by the Himachal Pradesh High Court
in Hem Raj vs. Urmila Devi and others 16, wherein it was held that,
once a Civil Court found in a contested proceeding that the wife had no
just or reasonable cause to withdraw her society from the husband, she
cannot claim maintenance under Section 125 Cr.P.C. It was observed,
on facts, that the wife had not pleaded any subsequent event or
circumstance which justified her staying away from her husband in spite
of the decree for restitution of conjugal rights passed against her.
26. On the same lines, in Ravi Kumar vs. Santosh Kumari17, a
Division Bench of the Punjab & Haryana High Court held that a wife
against whom a decree for restitution of conjugal rights has been passed
by the Civil Court would not be entitled to claim maintenance under
15
1985 SCC OnLine Guj 161 = (1986) GLH 778
16
1996 SCC OnLine HP 116 = (1997) 1 HLR 702
17
1997 SCC OnLine P&H 529 = (1997) 3 RCR (Cri) 3 (DB)
15
Section 125 Cr.P.C. if, in the proceedings of restitution, a specific issue
was framed as to whether the wife refused to live with her husband
without sufficient reason and the parties were given an opportunity to
lead evidence, whereupon specific findings were recorded by the Civil
Court against the wife on the issue. It was, however, added that in the
event the husband got an ex parte decree for restitution, such a decree
would not be binding on the Criminal Court exercising jurisdiction under
Section 125 Cr.P.C. It was also clarified that if the decree for restitution
of conjugal rights was obtained by the husband subsequent to the order
for maintenance passed by the Magistrate under Section 125 Cr.P.C.,
then the decree would not ipso facto disentitle the wife to her right to
maintenance and the husband would have to approach the Magistrate to
get the order granting maintenance cancelled.
27. Now, turning to the decisions of this Court on the point, in
Kirtikant D. Vadodaria vs. State of Gujarat and another 18, it was held
that Section 125 Cr.P.C. has to be given a liberal construction to fulfil and
achieve the intention of the legislature and, therefore, the passing of a
decree for restitution of conjugal rights against the wife would not, by
itself, defeat her right to maintenance under Section 125(1) Cr.P.C. It
was further observed that the mere ‘failure’ of the wife to live with her
husband would not be sufficient to disentitle her from receiving
18
(1996) 4 SCC 479
16
maintenance from him, especially as the crucial word carefully chosen in
the relevant provision is ‘refusal’.
28. In Amrita Singh vs. Ratan Singh and another 19, this Court
held, on facts, that the plea of the husband that his wife had deserted
him without reasonable cause and that he was ready to take her back
was falsified by the fact that the wife was treated with cruelty and
subjected to persistent demands for dowry, resulting in her being ousted
from the matrimonial house, whereupon she was compelled to file a
criminal complaint under Section 498A IPC ending in the conviction of
the husband and his father. The wife was held to have reasonable
grounds not to join the husband, thereby entitling her to maintenance.
29. Thus, the preponderance of judicial thought weighs in favour of
upholding the wife’s right to maintenance under Section 125 Cr.P.C. and
the mere passing of a decree for restitution of conjugal rights at the
husband’s behest and non-compliance therewith by the wife would not,
by itself, be sufficient to attract the disqualification under Section 125(4)
Cr.P.C. It would depend on the facts of the individual case and it would
have to be decided, on the strength of the material and evidence
available, whether the wife still had valid and sufficient reason to refuse
to live with her husband, despite such a decree. There can be no hard
and fast rule in this regard and it must invariably depend on the
19
(2018) 17 SCC 737
17
distinctive facts and circumstances obtaining in each particular case. In
any event, a decree for restitution of conjugal rights secured by a
husband coupled with non-compliance therewith by the wife would not
be determinative straightaway either of her right to maintenance or the
applicability of the disqualification under Section 125(4) Cr.P.C.
30. Another contention that was urged before us is that the findings
in the judgment for restitution of conjugal rights by the Family Court,
being a Civil Court, would be binding on the Court seized of the petition
under Section 125 Cr.P.C, as they are to be treated as criminal
proceedings. This specious argument needs mention only to be rejected
outright. No doubt, in Shanti Kumar Panda vs. Shakuntala Devi 20, this
Court held that a decision by a Criminal Court would not bind the Civil
Court while a decision by the Civil Court would bind the Criminal Court.
However, maintenance proceedings are essentially civil in nature and
the reason for inclusion of the provisions dealing therewith in the Code of
Criminal Procedure was clarified by the Law Commission of India in
September, 1969. Significantly, as long back as in the year 1963, in Mst.
Jagir Kaur and another vs. Jaswant Singh 21, a 3-Judge Bench of this
Court held that proceedings under Section 488 of the Code of Criminal
Procedure, 1898, the precursor to Section 125 Cr.P.C., are in the nature
of civil proceedings; the remedy, being a summary one; and the person
20
(2004) 1 SCC 438
21
AIR 1963 SC 1521
18
seeking that remedy, ordinarily being a helpless person. Therefore, even
if non-compliance with an order for payment of maintenance entails
penal consequences, as may other decrees of a Civil Court, such
proceedings would not qualify as or become criminal proceedings.
Nomenclature of maintenance proceedings initiated under the Code of
Criminal Procedure, as those provisions find place therein, cannot be
held to be conclusive as to the nature of such proceedings.
31. Further, in Iqbal Singh Marwah and another vs. Meenakshi
Marwah and another22, while dealing with the contention that an effort
should be made to avoid conflict of findings between Civil and Criminal
Courts, a Constitution Bench pointed out that there is neither any
statutory provision nor any legal principle that the findings recorded in
one proceeding may be treated as final or binding in the other, as both
the cases have to be decided on the basis of the evidence adduced
therein.
32. The Indian Evidence Act, 1872, distinguishes between
judgments in rem and judgments in personam and Sections 40 to 43
therein stipulates the relevance of existing judgments, orders or decrees
in subsequent proceedings in different situations. The relevant
provisions are extracted hereunder for ready reference:
22
(2005) 4 SCC 370
19
40. Previous judgments relevant to bar a second suit or trial: –
The existence of any judgment, order or decree which by law
prevents any Court from taking cognizance of a suit or holding a trial
is a relevant fact when the question is whether such Court ought to
take cognizance of a such suit, or to hold such trial.
41. Relevancy of certain judgments in probate, etc., jurisdiction: –
A final judgment, order or decree of a competent Court, in the
exercise of probate, matrimonial admiralty or insolvency jurisdiction
which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to any such
character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any
such legal character, or the title of any such person to any such thing,
is relevant.
Such judgment, order or decree is conclusive proof—
that any legal character, which it confers accrued at the time
when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to
be entitled, accrued to that person at the time when such judgment,
[order or decree] declares it to have accrued to that person;
that any legal character which it takes away from any such
person ceased at the time from which such judgment, [order or
decree] declared that it had ceased or should cease;
and that anything to which it declares any person to be so
entitled was the property of that person at the time from which such
judgment, [order or decree] declares that it had been or should be his
property.
42. Relevancy and effect of judgments, orders or decrees, other than those
mentioned in section 41: –
Judgments, orders or decrees other than those mentioned in section
41, are relevant if they relate to matters of a public nature relevant to
the enquiry; but such judgments, orders or decrees are not
conclusive proof of that which they state.
Illustration:
A sues B for trespass on his land. B alleges the existence of a public
right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A
against C for a trespass on the same land in which C alleged the
existence of the same right of way, is relevant, but it is not conclusive
proof that the right of way exists.
20
43. Judgments, etc., other than those mentioned in sections 40 to 42, when
relevant. –
Judgments, orders or decrees, other than those mentioned in
sections 40, 41 and 42, are irrelevant, unless the existence of such
judgment, order or decree, is a fact in issue, or is relevant under
some other provisions of this Act.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of
them. C in each case says, that the matter alleged to be libellous is
true, and the circumstances are such that it is probably true in each
case, or in neither.
A obtains a decree against C for damages on the ground that C failed
to make out his justification. The fact is irrelevant as between B and
C.
(b) A prosecutes B for adultery with C, A’s wife.
B denies that C is A’s wife, but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A’s
lifetime. C says that she never was A’s wife.
The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him, B, is convicted.
A afterwards sues C for the cow, which B had sold to him before his
conviction. As between A and C, the judgment against B is irrelevant.
(d) A had obtained a decree for the possession of land against B, C,
B’s son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a
crime.
[(e) A is charged with theft and with having been previously convicted
of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel
and that A was convicted and sentenced is relevant under section 8
as showing the motive for the fact in issue.
33. Sections 34 to 37 of the Bharata Sakshya Adhiniyam, 2023,
correspond to Sections 40 to 43 of the Indian Evidence Act, 1872, with
some modifications. Section 41, as is clear from the extraction
21
hereinabove, specifically deals with instances where an earlier judgment,
order or decree constitutes conclusive proof whereas Section 42
provides that an earlier judgment is relevant if it relates to matters of
public nature relevant to the inquiry, but such judgments, orders or
decrees are not conclusive proof of that which they state. These
provisions were considered in detail by a 3-Judge Bench of this Court in
K.G. Premshankar vs. Inspector of Police and another 23, in the
context of when a judgment in a civil proceeding, on the same cause of
action, would be relevant in a criminal case, and it was observed thus:
“30. What emerges from the aforesaid discussion is – (1) the
previous judgment which is final can be relied upon as provided
under Sections 40 to 43 of the Evidence Act; (2)..; (3)..; (4) if the
criminal case and the civil proceedings are for the same cause,
judgment of the civil court would be relevant if conditions of any of
Sections 40 to 43 are satisfied, but it cannot be said that the same
would be conclusive except as provided in Section 41. Section 41
provides which judgment would be conclusive proof of what is stated
therein.
31. Further, the judgment, order or decree passed in previous civil
proceeding, if relevant, as provided under Sections 40 and 42 or
other provisions of the Evidence Act then in each case, the court has
to decide to what extent it is binding or conclusive with regard to the
matter(s) decided therein. … Hence, in each and every case, the first
question which would require consideration is – whether judgment,
order or decree is relevant, if relevant – its effect. It may be relevant
for a limited purpose, such as, motive or as a fact in issue. This
would depend upon the facts of each case.”23
(2002) 8 SCC 8722
Decisions of this Court manifest that judgments passed on meritsin civil proceedings have been accepted as sufficient cause to discharge
or acquit a person facing prosecution on the same grounds. This dictum
is applied especially in cases where civil adjudication proceedings, like in
tax cases, lead to initiation of prosecution by the authorities. Such cases
are, however, different as there is a direct connect between the civil
proceedings and the prosecution which is launched. The facts and
allegations leading to the prosecution directly arise as a result of the civil
proceedings. Moreover, the standard of proof in civil proceedings is a
preponderance of probabilities whereas, in criminal prosecution,
conviction requires proof beyond reasonable doubt. We do not think the
said principle can be applied per se to proceedings for maintenance
under Section 125 Cr.P.C. by relying upon a judgment passed by a Civil
Court on an application for restitution of conjugal rights. Further, the two
proceedings are altogether independent and are not directly or even
indirectly connected, in the sense that proceedings under Section 125
Cr.P.C. do not arise from proceedings for restitution of conjugal rights.
34. Long ago, in Captain Ramesh Chander Kaushal vs. Mrs.
Veena Kaushal and others24, this Court noted that it is valid to assert
that a final determination of a civil right by a Civil Court would prevail
against a like decision by a Criminal Court but held that this principle
24
(1978) 4 SCC 70
23
would be inapplicable when it comes to maintenance granted under
Section 24 of the Hindu Marriage Act, 1955, as opposed to maintenance
granted under Section 125 Cr.P.C. It was noted that the latter provision
was a measure of social justice specially enacted to protect women and
children falling within the constitutional sweep of Article 15(3) reinforced
by Article 39.
35. Viewed thus, the findings in the proceedings for restitution of
conjugal rights, which were partly uncontested as Reena did not appear
before the Family Court to adduce evidence or advance her case after
filing her written statement, did not clinch the issue and the High Court
ought not to have given such undue weightage to the said judgment and
the findings therein. In the process, certain crucial factors were
overlooked. Particularly, the fact that the witnesses who appeared on
behalf of Reena in the Section 125 Cr.P.C. proceedings were not even
cross-examined. It was clear therefrom that Dinesh did not even contest
or rebut what they had stated. The fact that Reena was fully dependent
on her brother was thus admitted. Further, documents were placed on
record in proof of Reena’s abortion in January, 2015. In that regard,
Dinesh’s admission that he did not bear the expenditure for her
treatment and her unrebutted assertion that he did not take her to the
hospital or even come from Ranchi to see her were clear indicia of the
pain and mental cruelty meted out to her. The fact that she was not
24
allowed to use the toilet in the house or avail proper facilities to cook
food in the matrimonial home, facts which were accepted in the
restitution proceedings, are further indications of her ill-treatment.
36. Pertinently, in Parveen Mehta vs. Inderjit Mehta 25, this Court
held that mental cruelty is a state of mind and feeling of one of the
spouses due to the behavioral pattern by the other and, unlike physical
cruelty, mental cruelty is difficult to establish by direct evidence. It was
observed that a feeling of anguish, disappointment and frustration in one
spouse caused by the conduct of the other can only be appreciated on
cumulatively assessing the attending facts and circumstances in which
the two spouses have been living. In a case of mental cruelty, per this
Court, it would not be the correct approach to take an instance of
misbehaviour in isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty. The approach
should be to take the cumulative effect of the facts and circumstances
emerging from the evidence on record and then draw a fair inference
whether the spouse has been subjected to mental cruelty due to the
conduct of the other.
37. Applying this standard, Dinesh’s conduct in completely ignoring
his wife, Reena, after she suffered the miscarriage of their child would
have been the proverbial last straw adding to her suffering due to the
25
(2002) 5 SCC 706
25
ill-treatment in her matrimonial home. She, therefore, had just cause to
not return to her matrimonial home, despite the restitution decree.
Further, the events thereafter or rather, the lack thereof, is relevant. The
restitution decree came to be passed on 23.04.2022. Admittedly, there
was no attempt made at reconciliation after 2017. However, having
secured the said restitution decree, Dinesh did nothing! He neither
sought execution of the decree under Order XXI Rule 32 CPC nor did he
seek a decree of divorce under Section 13(1A)(ii) of the Hindu Marriage
Act, 1955.
38. The reason for this is not far to gather. In Rohtash Singh vs.
Ramendri (Smt.) and others26, this Court clarified that a wife, who
suffered a decree of divorce on the ground of deserting her husband,
would not be entitled to maintenance under Section 125 Cr.P.C. as long
as the marriage subsisted, but she would be entitled to such
maintenance once she attained the status of a divorced wife, in the light
of the definition of a ‘wife’ in Explanation (b) to Section 125(1) Cr.P.C.
Dinesh, therefore, sought to protect himself from a claim by Reena for
maintenance by projecting the disobeyed restitution decree as a defence
and as long as she did not attain the status of a divorced wife, that
protection would endure to his benefit. This stalemate of sorts created by
Dinesh clearly reflects his lack of bonafides and demonstrates his
26
(2000) 3 SCC 180
26
attempt to disown all responsibility towards his wife, Reena. These
factors, taken cumulatively, clearly manifest that Reena had more than
sufficient reason to stay away from the society of her husband, Dinesh,
and her refusal to live with him, notwithstanding the passing of a decree
for restitution of conjugal rights, therefore, cannot be held against her. In
consequence, the disqualification under Section 125(4) Cr.P.C. was not
attracted and the High Court erred grievously in applying the same and
holding that Reena was not entitled to the maintenance granted to her
by the Family Court.
39. The appeal is accordingly allowed, setting aside the judgment
dated 04.08.2023 passed by the High Court of Jharkhand at Ranchi in
Criminal Revision No. 440 of 2022. In consequence, the order dated
15.02.2022 passed by the learned Principal Judge, Family Court,
Dhanbad, in Original Maintenance Case No. 454 of 2019 shall stand
restored. In furtherance thereof, Dinesh, respondent No. 1 herein, shall
pay maintenance @ ₹10,000/- per month to Reena, the appellant, on or
before the 10th day of each calendar month. Such maintenance would be
payable from the date of filing of the maintenance application, i.e.,
03.08.2019. Arrears of the maintenance shall be paid by Dinesh in three
equal installments, i.e., the first instalment by 30.04.2025, the second
instalment by 31.08.2025 and the third and final instalment by
31.12.2025.
27
In the circumstances, parties shall bear their own costs.
………………………..,CJI.
(SANJIV KHANNA)
………………………..,J
(SANJAY KUMAR)
January 10, 2025;
New Delhi.
28