Family Law Presentation

CAPTAIN RAMESH CHANDER
KAUSHAL
V.
MRS. VEENA KAUSHAL &
ORS.
[AIR 1978 SC
1807]
Malika Tiwari
17bbl027
Varada Jahagirdar
17bbl060
RELEVANT LEGAL
PROVISIONS
HMA - Sec 24:
Maintenance Pendente Lite and
Expenses of Proceedings
Where in any proceeding under this Act it appears to the
court that either the wife or the husband, as the case
may be, has no independent income sufficient for her or
his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the
husband, order the respondent to pay to the petitioner
the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the
petitioner's own income and the income of the
respondent, it may seem to the court to be reasonable:
[Provided that the application for the payment of the
expenses of the proceeding and such monthly sum
during the proceeding, shall as far as possible, be
RELEVANT LEGAL
PROVISIONS
Sec 125 CrPC
Order for maintenance of wives,
children and parents.
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, a Magistrate of
the first class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for
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
Factual Matrix of the
Case
 Captain Ramesh (the Petitioner) was married to Mrs. Veena
(the Respondent) and two children were born out of the
wedlock.
 After the marriage, the husband took up a job of a pilot in

the Indian Airlines Corporation.
 According to the wife, although her husband was affluent

and once affectionate towards her, his romantic tenderness
turned into flagellant tantrums after he joined the job in the
Airlines as a pilot.
PETITIONS FILED BY THE PARTIES
As a result of this, two separate litigations were filed by
the parties –
 The husband filed a petition for divorce in the civil

court, hurling the charges of Adultery.
 The wife accused the husband of desertion, cruelty and

break-up that traumatized not only her but also the two
children born out of the wedlock.
 Thus, she filed a case in the criminal court, claiming

maintenance from Mr. Ramesh.
DECISION OF DECISION OF THE
THE CIVIL COURT CRIMINAL COURT
The District Court The magistrate,

and the High Court carried out an ex-
awarded parte proceedings
maintenance at a and ordered Rs.1000
fixed rate of per month of
Rs.400 per month maintenance for the
as provisional mother and the two
figure. children together.
Thus there was a clash between the

judgments of both the courts
ISSUES
RAISED
ISSUES RAISED
Issue 1. Whether the decision of the civil court

regarding the maintenance could out-weigh the
quantum decided by the criminal court?
Issue 2: Whether the award of Rs.1000 was

permissible, when the maximum amount of
maintenance under Sec 125 of Cr.PC is set at Rs.500?
ARGUMETNS ADVANCED BY THE
PETITIONER
Two points were raised by the

petitioner –
1. The Magistrate (criminal court)
had ignored the determination of
the quantum of the civil court and
therefore has committed an error
by having made such ignorance.
2. Section 125 of the Code of
Criminal Procedure states that the
maximum awardable
maintenance “in the whole” is
Rs.500 wherein the term “in the
whole” includes wife, children,
The Court held
that the sum
specified is not a
compendious sum
DE NT S
but separate.
ceiling put on the
PRE CE
Further, the is
maintenance S
E DE NT
highly
PRE C
unreasonable for a
woman with
Prabhavati
multiple children,
accepting that the v.
right of the wife Swnatilal
and of each child [Bombay High
is an independent Court]
right. The
Legislature intends
The Hon’ble
Court held that
the object of the
law is to progress DE NT S
PR E CE
and not perish
DE NT S
and therefore
PR E CE
each claimant for
maintenance Md. Bashir
irrespective of it v.
being the wife,
Noon Jahan
child, father or
mother is
Begum
independently [Calcutta High
entitled to a Court]
maximum of
JUDGMENT
The (ISSUE 1) in
court held that
the ordinary course,
the decision of the civil
court should prevail
over that of the
criminal court.
However,
given by the civil court is not a final the direction
determination under the Hindu Adoptions and
Maintenance Act but only an interim order.
Further, under Sec 24 of the Hindu Marriage Act,
the expenses of the litigation must be borne by
keeping in mind the income of both parties.
Hence, the order passed by the magistrate is
 The Court rejected JUDGMENT
the claim and
accepted the (ISSUE 2)
ambiguity of
provision.
 Its impossible to
accept that the
jurisdiction of the
magistrate is limited
to providing a
maintenance of
responsibility
Rs.100 to the onwifethe person who neglects his
wife andchildren.
and the children.
 The intention
obligationofisthe
separate with respect to each
person.
legislation was to
 “In
castthe
a whole” means taking all the items of
IMPORTANT POINTS DISCUSSED BY

THE COURT
All public sector (why, private sector too) institutions,
including the Airlines, must manifest, in their codes of
discipline, this consciousness of social justice and inner
morality as essential to its life style.
 Section 125 of CrPC is a measure of social justice and
specially enacted to protect women and children. For
achieving the real purpose of such provisions, the court
can be selective in picking that interpretation out of two
alternatives which advance the cause of the weaker
and the neglected sections of the society.
 While deciding the case, the court dealt with the
question - If a woman has a dozen children and if the
man neglects them all as well as his own parents, in his
addiction to a fresh mistress, and if all these members
of the family seek maintenance in one petition against,
can it be that the Court cannot award more than
THE PATENT ERROR IN THE
The last paragraph ofJUDGMENT
the judgment stated that the
divorce was granted under the parallel divorce
proceeding, but an appeal was pending from that
decision. If the appeal ends in divorce being decreed, the
wife's claim for maintenance comes to an end.
Later, a patent error was found in this paragraph of the

judgment.
As per Section 125(1), Explanation (b) of the Cr.PC, “Wife"
includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not
remarried.
The express statutory provision was in clear contradiction
with the erred judgment which said that the wife will lose
her right to maintenance if the divorce is finalized in the
appeal.

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CAPTAIN RAMESH CHANDER

 After the marriage, the husband took up a job of a pilot in

 According to the wife, although her husband was affluent

 The husband filed a petition for divorce in the civil

 The wife accused the husband of desertion, cruelty and

 Thus, she filed a case in the criminal court, claiming

The District Court The magistrate,

Thus there was a clash between the

Issue 1. Whether the decision of the civil court

Issue 2: Whether the award of Rs.1000 was

Two points were raised by the

Later, a patent error was found in this paragraph of the

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