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Himachal Pradesh High Court · body

2015 DIGILAW 410 (HP)

Vijay Kumar v. Vijay Laxmi

2015-04-28

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. This petition, under section 482 Cr.P.C., is directed against the order passed by learned Addl. Sessions Judge, Kangra on 25.8.2014 affirming the orders passed by learned Judicial Magistrate Ist Class, Baijnath, District Kangra, whereby the respondents had been awarded maintenance at the rate of Rs.3000/- per month (Rs.2000/- for respondent No.1 and Rs.1000/- for respondent No.2) in proceedings initiated by the respondents under sections 125 Cr.P.C. 2. At the outset, it may be noticed that relationship inter se the parties as husband and wife and respondent No. 2 being their minor child is not in dispute. The petitioner admittedly did not contest the petition and had been proceeded exparte and respondent No. 1 in her exparte evidence had proved on record that petitioner despite Whether the reporters of the local papers may be allowed to see the Judgment? Yes having sufficient means had neglected and refused to maintain the respondents. She further examined two other witnesses including her father as PW 3 who had duly proved on record all these facts. 3. The petitioner has raised two-fold submissions. Firstly, that he had not been served in the proceedings and secondly that he being unemployed is not in a position to maintain the respondents. 4. The learned counsel for the petitioner in support of his first submission has vehemently argued that petitioner had not been served before the trial court and therefore, the exparte proceedings against him are bad in law. A perusal of the record would show that initially notice was issued to the petitioner for 17.6.2009 but he could not be served and thereafter despite repeated notices, the petitioner was not served. Ultimately, notice under registered-AD cover was issued on 3.5.2011, which was not received back. The trial Magistrate by invoking the provisions of section 27 of General Clauses Act, 1897 carried out exparte proceedings against the petitioner. 5. It has vehemently been argued that notwithstanding section 27 of General Clauses Act, the petitioner could not be deemed to have been served in view of peculiarity of facts and circumstances of the case. I find no merit in this submission because a perusal of the address given in the postal receipt is the same as given by the petitioner in his affidavit filed in support of the petition. 6. Section 27 of the General Clauses Act, 1897 reads thus:- “27. I find no merit in this submission because a perusal of the address given in the postal receipt is the same as given by the petitioner in his affidavit filed in support of the petition. 6. Section 27 of the General Clauses Act, 1897 reads thus:- “27. Meaning of service by post—Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expression “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 7. The Hon’ble Supreme Court in M/s Madan and Co. vs. Wazir Jaivir Chand (1989) 1 SCC 264 , while dealing with the question as to whether the duty of the landlord was complete by sending of notice with reference to the presumption under section 27 of the General Clauses Act held that once there is proper tender of the demand notice at the correct notice then there is service of demand notice in view of the presumption as per section 27 of the General Clauses Act. It was reported that:- “6. We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to Cl. (i) of S. 11(l) and the proviso to S. 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on. and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O. V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned. it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him I gets served on, or is received by, the tenant.” 8. This Court in Satish Kumar vs. Smt. Ram Piari and others 1995 (1) Sim. L.C. 292 had the occasion to consider a similar question and it was held:- “4. Challenging the findings of both the Courts below, Sh. Bhupender Gupta, learned Counsel appearing for Satish Kumar, has pointed out that the certificate of the postal authorities, Ex P-3, production of which was objected to, could not be relied upon by the Courts below as it was not proved by either producing the record of the postal authorities or the official who issued it. Sh. Bhupender Gupta, learned Counsel appearing for Satish Kumar, has pointed out that the certificate of the postal authorities, Ex P-3, production of which was objected to, could not be relied upon by the Courts below as it was not proved by either producing the record of the postal authorities or the official who issued it. Sh. Gupta further submits that in view of the denial of Satish Kumar that he did not receive the notice Ex. P-l and the certificate of postal authorities Ex. P-3 does not bear his signatures, no presumption arose under section 114 of the Indian Evidence Act read with section 27 of the General Clauses Act that the notice Ex. P-1 was delivered to Satish Kumar. 5. This Court does not find any substance in the submission made by Sh. Gupta. Section 106 of the Transfer of Property Act provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property not for agricultural or manufacturing purposes is terminable on fifteen days' notice expiring with the end of month of tenancy and every such notice must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at the residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. 6. Section 27 of the General Clauses Act provides that where any act authorises or requires any document to be served by post whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 7. As provided in these provisions of law, in the case in hand, the notice Ex. 7. As provided in these provisions of law, in the case in hand, the notice Ex. P-1 was in writing, signed on behalf of Prithvi Chand, the then owner landlord of the premises in dispute and was sent by registered post, as such, the service of it was deemed to have been effected on Satish Kumar. From the statement of Surender Kumar, the postal receipt Ex. P-2 produced by him and the statement of Satish Kumar himself, proper addressing, pre-paying and posting of letter containing notice Ex. P-1 by registered post stood proved, therefore both the Courts below were right in deriving presumption by applying the provisions of section 27 of General Clauses Act and Illustration (f) given in section 114 of the Indian Evidence Act that in the common course of business which would have been followed in the present case, the notice Ex. P-l was deemed to have been delivered to addressee Satish Kumar at the time at which the letter would be delivered in the ordinary course of the post. 8. In the words of the learned Judges of the Supreme Court in Ear Charan Singh v. Shiv Rani and others, AIR 1981 SC 1284 , section 27 of the General Clauses Act, ",........raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon without anything more". The learned Judges further observed, "......similar presumption is raised under Illustration (f) to section 114 of the Indian Evidence Act where under it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumption both under section 27 of the General Clauses Act as well as under section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise........." (Please also see Memon Adambhai Haji Ismail v. Bhaiya Ramdas Badridas and others, AIR 1975 Guj 54 ; Shiv Dutt Singh v. Ram Doss, AIR 1980 All 280 ; Kirloskar Bros. Ltd. Indore v. Engineering Machinery Mart, Narsinghpur M.P., AIR 1982 MP 75 and Mis. Madan and Co, v. Wazir Jaivir Chand, (1989) 1 SCC 264 ). 9. In view of the clear position of law, this Court holds that both the Courts below have rightly come to the conclusion that on the proof that notice Ex. P-1 was sent on the correct address to Satish Kumar by pre-paying and posting it by registered post and also that it was not received back, the presumption did arise, that the notice Ex. P-1 was duly served upon Satish Kumar and that he did receive it. So far the certificate of postal authorities Ext P 3 is concerned, this Court finds that it does not bear the signatures of Satish Kumar and the words written thereon are, ' Sd/ Sh. Satish Kumar c/o D.E.O. Shimla 171001". Therefore, Satish Kumar was right in stating in his cross-examination that it was not signed by him. In the ordinary course, he was not supposed to sign the certificate issued by the postal authorities in respect of delivery of registered letter in question It is also correct that this certificate of postal authorities has not been proved in accordance with law but even if it is not taken into account, the presumption that notice Ex. P-1 was served upon and received by Satish Kumar was complete.” 9. P-1 was served upon and received by Satish Kumar was complete.” 9. In C.C. Alavi Haji vs. Palapetty Muhammed and another (2007) 6 SCC 555 , a three Judges Bench of Hon’ble Supreme Court upon reference to it made by a Division Bench had the occasion to consider the provisions of section 114 of the Evidence Act, 1872 alongwith the provisions of section 27 of General Clauses Act and it was observed that when section 114 of Evidence Act, 1872 is applied to communication sent by post, it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee, but the presumption that is raised under section 27 of the General Clauses Act, 1897 is a far stronger presumption, while section 114 of the Evidence Act refers to general presumption, section 27 of the General Clauses Act refers to a specific presumption. 10. No doubt the presumption that arises under section 27 of General Clauses Act, 1897 is rebuttable but then the petitioner has failed to rebut such presumption more particularly when the address given in the notice is the same as given by the petitioner himself in the affidavit filed before this court in support of the petition. 11. The learned counsel for the petitioner would then vehemently argue that since the petitioner is unemployed, he cannot be fastened upon the liability to pay maintenance to the respondents. This submission has been raised simply to be rejected. It can never be forgotten that the inherent and fundamental principle behind section 125 Cr.P.C. is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of such sustenance gets more heightened when the children are with her. Be it clarified that such sustenance does not mean and can never be allowed to mean a mere survival. A woman, who is constrained to leave the matrimonial home should not be allowed to feel that she has been fallen from grace and move heather and thither arranging for such sustenance. Be it clarified that such sustenance does not mean and can never be allowed to mean a mere survival. A woman, who is constrained to leave the matrimonial home should not be allowed to feel that she has been fallen from grace and move heather and thither arranging for such sustenance. As per law, she is entitled to lead her life in the similar manner as she would have lived in the house of her husband. 12. As long as the wife is held entitled for grant of maintenance within the parameters of section 125 Cr.P.C, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under section 125 Cr.P.C. can be passed, if a person despite having sufficient means neglects or refuses to maintain the wife. But here a plea is advanced by the husband that he does not have the means to pay for he does not have a job. These submissions have been regarded as bald excuses by the Hon’ble Supreme Court and it has further been held that such excuses have no acceptability in law. If the husband is able-bodied like in the present case and is in a position to support himself, he is under legal obligation to support his wife, for wife(s) right to receive maintenance under section 125 Cr.P.C. unless disqualified, is an absolute right. 13. In this context it shall be advantageous to refer to a recent judgement of Hon’ble Supreme Court in Shamima Farooqui vs. Shahid Khan JT 2015 (3) SC 576, where the Hon’ble Supreme Court held as follows:- “15. …… Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 Cr.PC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife’s right to receive maintenance under Section 125 Cr.PC, unless disqualified, is an absolute right. While determining the quantum of maintenance, this Court in Jabsir Kaur Sehgal v. District Judge Dehradun & Ors. [JT 1997 (7) SC 531 : 1997 (7) SCC 7 ] has held as follows:- “The court has to consider the status of the parties, Their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.” 16. Grant of maintenance to wife has been perceived as a measure of social justice by this Court. In Chaturbhuj v. Sita Bai [JT 2008 (1) SC 78 : 2008 (2) SCC 316 ], , it has been ruled that:- “Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal [ 1978 (4) SCC 70 ] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [JT 2005 (3) SC 164 ].” 16.1 This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 17. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 17. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash [AIR 1968 Delhi 174] wherein it has been opined thus:- “An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodies person to show to the Court cogent grounds for holding that he is unable to reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.” 18. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.” 14. In view of the aforesaid discussion, I find no illegality, irregularity or impropriety in the orders passed by the learned courts below and accordingly there being no merit in this petition, the same is dismissed, leaving the parties to bear their own costs.