Landmark Judgements On Section 34 Of The Indian Penal Code, 1860 (Acts Done By Several Persons In Furtherance Of Common Intention)

Some landmark judgements on section 34 of the Indian Penal Code, 1860 i.e., acts done by several persons in furtherance of common intention, are the following

In Mahboob Shah Vs Emperor 72 I.A. 148 (P.C.) on August 25, 1943, at sunrise, Allah Dad, the deceased, with a few others left their village Khanda Kel by boat for cutting reeds growing on the banks of the Indus river. When they had travelled for about a mile downstream, they saw Mohammad Shah, father of Wali Shah bathing on the bank of the river.

On being told that they were going to collect reeds, he warned them against collecting reeds from land belonging: to him. Ignoring his warning they collected about sixteen bundles of reeds, and then started for the return journey. While the boat was being pulled upstream by means of a rope Ghulam Quasim Shah, nephew of Mohammad Hussain Shah who was standing on the bank of the river asked Ahah Dad to give him the reeds that had been collected from his uncle's lanl. But he refused.

Quasim Shah then caught the rope and tried to snatch it away. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick but it was warded off on the rope. Allah Dad then picked up the Iari ( Lari is a bamboo pole for propelling the boat, about ten feet long and six inches thick.) from the boat and struck Quasim Shah. Quasim Shah then shouted out for help and Wali Shah and Mahbub Shah came up.

They had guns in their hands. When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah, causing injuries to him.

Mahboob Shah was sentenced by the trial court to seven years rigorous imprisonment for attempt to murder. But on appeal the Lahore High Court sentenced him to death under section 302 read with section 34 of the indInd Penal Code for committing murder of Allahdad. Mahboob Shah appealed to the Privy Council and conviction for murder was set aside.

In the present case, in the opinion of their Lordships, " Evidence falls far short of showing that the Mahboob Shah and Wali Shah ever entered into a pre-meditated concert to bring about the murder of Allah Dad in carrying out their intention of rescuing Quasim Shah. But Mahboob Shah and Wali Shah had the same intention, viz, the intention to rescue Quasim if need, be by using the guns, and that in carrying out this intention the appellant picked out Hamidullah for dealing with him and Wali Shah, the deceased, and there is no evidence of common intention to commit the criminal act complained against, in furtherance of such intention. The inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. "

Also read - 9 Major Differences Between Common Intention And Common Object. 

Ingredients And Principles Of Section 34 Of The Indian Penal Code.

In Barendra Kumar Ghosh Vs Emperor 52 I.A. 40. On August 3, 1923, the Sub-Fostmaster at Sankaritolla Post Office was counting money at his table in the back room, when several men appeared at the door which leads into the room from a courtyard, and, when just inside the door, called on him to give up the money. Almost immediately afterwards they fired pistols at him. The sub-postmaster died almost at once. Without taking any money the assailants fled, separating as they ran.

One man, Barendra Kumar Ghosh though he tired his pistol several times, was pursued by a post office assistant and others with commendable tenacity and courage, and eventually was secured just after he had thrown it away. The pistol was at once picked up and was produced at the trial. Hence Barendra Kumar Ghosh was prosecuted and tried for committing murder under section 302 read with section 34 of the Indian Penal Code.

He contended that he was standing outside and had not fired at the sub- postmaster and that he was compelled to join others for robbery and had no intention to kill the deceased.

But the Privy Council agreed with the Calcutta High Court and dismissed the appeal. While holding the appeallant liable for murder the following principles were laid down by the Privy Council -

1. Even if the appeallant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things  " they also serve who only stands and wait. "

2. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention each person is liable for the result of them all, as if he had done them himself, for "that act" in the latter part of the section must the whole action covered by a "criminal act" in the first part, because they refer to it.

3. A " criminal act " means the unity of criminal behavior which results in something for which an individual would be punishable, if it were all done by himself alone, in a criminal offence.

In Kripal Singh Vs State of U.P., AIR 1954 S.C. 706 their Lordships of the Supreme Court refused to infer common intention to murder. In this case three appellants namely Bhopal, Sheoraj and Kripal  were working the well that morning. When they saw Man Singh and Sher Singh going past the well they asked them where they were going. On being told that they were going to harvest Jiraj's sugarcane field they abused them and told them not to go there but to work for them. Man Singh and Sher Singh did not listen to them and walked on.

When they had gone 30-40 paces, the three appellants rushed at them and began to beat them with the handles of spears which were in the hands of Bhopal and Kripal and with a lathi which was in Sheoraj's hand. Jiraj arrived at the spot and asked the appellants why they were beating his labourers and stopped them from beating them. Sheoraj hit him on the legs with his lathi and he fell down. Kripal stabbed him with his spear near the ear. Bhopal then stabbed him with his spear on the left jaw, put his legs on his chest and extracted the spear blade from his jaw. Just as the blade came off, Jiraj died".

The High Court upheld the conviction under section 302 read with section 34 of the Indian Penal Code for committing the murder. The case went in appeal to the Supreme Court.

Their Lordships of Supreme Court observed : " Having regard to the sequence of assaults, the parts of the body on which the assaults of Kripal and Sheoraj were aimed and actual results of these assaults as above indicated, it is difficult to attribute to either of them any intention to kill the deceased. Nor it is reasonable to suppose that on the spur of the moment the common intention of the appeallants which was at first merely to beat the two labourers developed suddenly into a common intention to kill Jairaj when he intervened in the altercation."

" We are, therefore unable to uphold the view taken by the High Court that any common intention to kill the deceased can be attributed to the three appellants. Therefore the only common intention that can be attributed to all the three appellants, in so far as assault on Jairaj is concerned, is the common intention to beat Jairaj also with the weapons in their hands which were likely to produce grievous injuries. "

A persual of the above cases would show that to invoke section 34, prior concert or a pre-arranged plan has to be established. Though common intention has to be inferred from the act or conduct of the accused and other relevant circumstances, it is not necessary that any overt act must have been done by any particular accused. It would be enough if the criminal act has been done by one of the accused in furtherance of the common intention. The common intention must be to commit the particular crime although the actual crime may be committed by any one sharing the common intention and then all others can be held guilty of the crime.


References -
Ratanlal & Dhirajlal- THE INDIAN PENAL CODE-33rd Edition
Criminal Law: Cases and Materials - Sixth Edition - K.D.Gaur
Prof. S.N.Misra - INDIAN PENAL CODE- 15th Edition




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Ingredients And Principles Of Section 34 Of The Indian Penal Code, 1860 (Acts Done By Several Persons In Furtherance Of Common Intention)

Section 34 of the Indian Penal Code deals with acts done by several persons in furtherance of common intention. According to it " When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. "

Ingredients of Section 34 of Indian Penal Code (acts done by several persons in furtherance of common intention) :-

To attract the principle of joint liability under section 34 there should be -
1. Some criminal act.
2. Criminal act done by more than one person.
3. Criminal act done by such persons in furtherance of the common intention of all of them.
4. Common intention in the sense of a pre arranged plan between such persons.
5. Participation in some manner in the act constituting the offence by the persons sought to be prosecuted.
6. Physical presence at the time of commission of crime of all the persons, but physical presence of all is not necessary in some cases.

Criminal act used in section 34 does not refer to individual acts where a crime is committed by a group of persons. Where a crime is committed by several persons in furtherance of common intention of all of them, each of them doing some act, similar or diverse, big or small shall be liable for that act. That act refers to the 'criminal act' used in section 34 which means the unity of criminal behavior which results in something for which an individual would be punishable if it were all done himself alone in an offence.

Section 34 enunciates the principle of joint liability. If two or more persons intentionally do an act jointly, it is just the same as if each of them had done it individually. This section was meant by the framers of the Code to deal with those cases where it may be difficult to distinguish precisely the part taken by each individual; it was deemed necessary to declare all the persons liable for the criminal act.

However, section 34 is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is element of participation in action.

Also read - 9 Major Differences Between Common Intention And Common Object. 

Landmark Judgements on Section 34 of The Indian Penal Code. 

Principles of Section 34 (Common Intention) Of The Indian Penal Code :- 
In Mahboob Shah Vs Emperor 72 I.A. 148 (P.C) the Privy Council laid down the following principles:-

1. Under Section 34 of the Penal Code, essence of liability to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.

2. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention; if this is so then liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone.

3. Common intention within the meaning of section 34 implies a pre- arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan.

4. It is difficult, if not impossible, to procure direct evidence to prove the intention of an individual, in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.

5. Care must be taken not to confuse same or similar intention with common intention; the partition which divides  "their bounds" is often very thin nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of Justice.

6. The inference of common intention within the meaning of the term under section 34 should be reached unless it is a necessary inference deductable from the circumstances of the case. 

References -
Ratanlal & Dhirajlal- THE INDIAN PENAL CODE-33rd Edition
Criminal Law: Cases and Materials - Sixth Edition - K.D.Gaur
Prof. S.N.Misra - INDIAN PENAL CODE- 15th  Edition




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Whether Anticipatory Bail Can Be Granted Even After Warrant or Summons Has Been Issued? Detailed Discussion with Landmark Judgements

Section 438 applies to all non-bailable offences. It is not confined to duly those non-bailable offences which are punishable with death or imprisonment for life anticipatory bail can be granted in respect of non bailable offences whether they are cognizable or non-cognizable offences.

In view of the decisions of the various High Courts and the Supreme Court it is now settled that anticipatory bail can be granted even after the Criminal Court has taken cognizance, and summons or warrant has been issued by the Court

In the following cases it was held that anticipatory bail can be granted even after the Criminal Court has taken cognizance, and summons or warrant has been issued by the Court.

1. In Sheik Khasim Bi vs The State AIR 1986 AP 345 a Full Bench of Andhra Pradesh High Court  held that "the filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not pub an end to the power to grant bail under section 438(1), Cr. P. C., and on the other hand we are of the view that the High Court or the Court of Session has power to grant anticipatory bail under section 438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person. "

It was also held that 
"A notice to the Public Prosecutor can be issued after the application is filed, and after hearing both sides the court will have the necessary information particularly regarding the fact of charge-sheet having been filed and the warrant having been issued, and if the High Court or the Session Court is satisfied that there are certain exceptional circumstances, then it may in its discretion, instead of directing the applicant to obtain bail under Section 437 or Section 439 Cr. P. C., grant anticipatory bail under Section 438 Cr. P. C., with suitable directions and impose necessary conditions."

" Of course, as pointed by the Supreme Court in Gurbaksh Singh's case, it is purely within the discretion of the court, but the fact that the charge-sheet is filed and warrant is issued is yet another strong circumstance which the court should keep in view while exercising this extraordinary power. However, the non-exercise of this extraordinary power ordinarily is not due to lack of jurisdiction. The discretion to exercise such power is always there, but it always depends upon various facts and circumstances of each case. "

2.  A Division Bench of the Punjab and Haryana High Court in Puran Singh v Ajit Singh 1985 Cri LJ 897 held that
"The main governing factor for the exercise of jurisdiction under section 438 Cr. P. C., is the apprehension of arrest by a person accused of the commission of a non-bailable offence. The section makes no distinction whether the arrest is apprehended at the hands of the police or at the instance of the Magistrate. The issuance of a warrant by the Magistrate against a person, thus, justifiably gives rise to such an apprehension and well entitles a person to make a prayer for his anticipatory bail."

" The High Court or the Court of Session may, however, decline to exercise its powers under section 438(1), Cr. P. C. Keeping in view the fact that the Magistrate has summoned the accused through bailable warrant i.e., a relief almost similar to what can be granted by the court under section 438(1) Cr. P. C., yet that does not mean that the court has no jurisdiction to grant anticipatory bail to such an accused person. The grant of bail under section 438(1)by the High Court or the Court of Session is, to my mind, dependent on the merits of a particular case and not to the order of the Magistrate choosing to summon an accused through bailable or non-bailable warrant".

3. In  Shamim Ahmed And Ors. vs State And Ors.2003 CriLJ 2815. A three judge bench of Calcutta High Court held that " there is no bar in filing an application under Section 438 after the filing of the charge-sheet or after the issuance of a process under Section 204 of the Code or after the issue of warrant of arrest in a complaint case. We also come to the conclusion that such an application is quite maintainable at post-cognizance stage of a case instituted on police report or complaint after the Court issues process like warrant of arrest for production of a person of having committed a non-bailable offence. "

It was observed that
" Under section 438 the question posed before the High Court or the Court of Session is whether a person if arrested on an accusation of having committed a non-bailable offence, can be released on bail. The apprehension of such an arrest is possible only when the person is being haunted by the police or other authority. In many of the cases such haunting of a person is possible only after the issuance of the warrant of arrest after the filing of the charge-sheet or after the steps under Section 204 of the Code are taken." 

" At this juncture a person cannot move the Courts under Section 437 or under Section 439 because he is not in custody. But he can very well approach the High Court or the Court of Session under section 438 for an appropriate order. The High Court or the Court of Session in its turn is competent to examine the case of the person and his suitability to be enlarged on bail after the arrest and then only an order under section 438  is passed. "

" So filing of an application under section 438  itself does not mean that the applicant will be entitled to an order thereof. It is already settled that an order under section 438 can be passed after examining each case cautiously and carefully inasmuch as it is an order converting a non-bailable offence into a bailable one and protecting a person for some time from going to the custody after the arrest. "

It was also observed that
" As regards other aspects of maintainability of an application under Section 438 at a post cognizance stage, we like to point out that while passing an order under Section 438 the High Court or the Court of Session, wherever such an application is presented for consideration, is required to consider the application on merits, and in the order imposes conditions, in the light of the facts of a particular case, as may be thought fit and proper."

" In Section 438(2) it is further clarified that the conditions which could be imposed under Section 438(3) can also be imposed, "as if the bail were granted under that section". This particular aspect of the legislation is required to be taken into account while considering the maintainability of an application under Section 438 at a post cognizance stage. There is nothing in Section 438 authorising an applicant to get an order mandatorily. On the other hand, it is clarified by the Apex Court in several judgments that the passing of an order under Section 438 is entirely at the discretion of the Court where such an application is filed. "

" So mere filing of an application under Section 438  neither can stall an investigation or inquiry nor it can stand on the way of a trial of a case after filing of the charge-sheet or after issuance of process under Section 204 or 209 of the code. "

The other cases in which similar view was taken are 
1.Pankaj Lochan Sahoo v. State 1995 C.Cr. LR (Cal) 244  
2. P.V.Narashima Rao vs State (CBI)  1997 Cri LJ 961 
3. Nirbhay Singh And Anr. vs State Of Madhya Pradesh 1995 CRI. L.J. 3317, 
4. Ravindra Saxena Vs State of Rajasthan  (2010) 1 SCC 684 
5. Ragupathi vs. Govindan  2006(2) MLJ (Cri) 336
6. Neela.J.Shah Vs State of Gujrat  1998 1 G.L.H. 594 , etc

However in the under mentioned case, contrary view has been taken.

1. Ashok Kumar V. State of Orissa, 2000 Cr.LJ 1975 it was held that the powers of the Court of Session and of the High Court Under section 438 (1) Cr.P.C  can be invoked by a party at a stage when there is reason to apprehend that he may be arrested in respect of accusation for a non- bailable offence when the investigation is in progress and the police has neither completed its investigation nor filed the charge-sheet. The Magistrate neither has taken cognizance nor issued process against the person. Once this is done, the stage of invoking the power of the Court of Session or of High Court is over. 

2.Mansa Murmu and Anr. v. State of Orissa : (1989) 2 OCR 439 while considering the stage of grant of anticipatory bail the learned Judge held that the application Under section 438 is maintainable at a stage prior to arrest when a person apprehends arrest in some non- bailable offences, but such an application is not maintainable after the arrest or production before the Court or after warrant of arrest has been issued. It has been observed that if the Magistrate has already taken cognizance of an offence and has issued non-bailable warrant of arrest, the stage for invoking the jurisdiction of the High Court or the Court of Session for anticipatory bail is already over

3. Bhramar alias Bhramarbar Mohapatra and Anr. v. State : 51 (1981) CLT 391 held that the person who is an accused and is not under any restraint and apprehends arrest in a non- bailable offence may move the Court of Session or the High Court for grant of anticipatory bail Under section 438(1) of the Code, but it is not applicable to an accused against whom the Court has already issued process after taking cognizance of the offence. 

4.Mohan Behera and others v. State: 59 (1985) CLT 110, this Court has held that anticipatory bail Under section 438 Cr.P.C is not to be granted if the Magistrate has already taken cognizance and issued process. 

5. Kundal Majumdar Vs. State of Tripura, 2002 Cr. L. J. 353 (Gau). also similar view was taken.

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Is Filing Of A FIR Is A Condition Precedent To The Exercise Of The Power To Grant Anticipatory Bail Under Section 438 Of Criminal Procedure Code ? Detailed Discussion With Landmark Judgements

Anticipatory bail is granted under Section 438 of the Criminal Procedure Code. According to it, “  Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail;  “

Therefore, filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. What Section 438 Cr.P.C. requires is that the applicant is apprehending his arrest on accusation of having committed a non-bailable offence. It is not necessary that at the time of applying for anticipatory bail, the police must have already registered the FIR. Anticipatory bail can be applied even before registration of FIR, provided there is a real apprehension of arrest on accusation of having committed a non-bailable offence.

In this regard it is relevant to point out that
In Gurbaksh Singh Sibbia Etc vs State Of Punjab  1980 AIR 1632, a constitutional bench of supreme Court held that   the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438 . The imminence  of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Section 438 of the Code  lays down a condition which has to be  satisfied before  anticipatory bail can be granted. The  applicant must  show that he has "reason  to believe” that he may be arrested for a non-bailable offence.

The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere  'fear' is not  'belief', for which reason it is not enough for the applicant to show that he has some sort  of a vague apprehension that some one is going to make an accusation against  him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant  is based  that he may be arrested for a non-bailable offence,  must be  capable of being examined by the court objectively, because it is then alone that the court can determine  whether the  applicant has  reason to believe that he may be so  arrested, therefore, Section 438(1) cannot be invoked on the basis  and  general allegations, as if to arm oneself  in perpetuity against a possible arrest. 

In K. Rajasekhara Reddy vs State Of A.P.  1998 (4) ALD 677, it was held  that filing of an FIR and registration of a crime by the Police is not a condition precedent to the exercise of the power under Section 438 of Cr.P.C. Jurisdiction of the Court can be invoked by any person even in the absence of registration of a crime and there is no requirement of furnishing the crime number as such. There is also no requirement that a copy of the F.I.R. should be made available for the purpose of considering the application under Section 438 of Cr.P.C.

But it Does not  mean that an applicant is entitled for the relief under Section 438 of Cr.P.C. on the basis of mere apprehension. The belief entertained by an applicant that he may be arrested for a non-bailable offence must be capable of examining by the Court objectively. There must be clear and definite material before the Court to examine the basis on which the applicant entertained such apprehension. A person invoking the jurisdiction of the Court under Section 438 of Cr.P.C. is duty bound to make available such material to the Court to enable the Court to examine that material objectively and to discern as to whether the apprehension entertained by such person is a reasonable one or not. "a belief can be said to be founded on reasonable ground only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine." In the absence of such material, the Court cannot issue necessary directions to release the applicant in the event of his arrest, as the Court would not be in a position to specify as to in what connection and in respect of what accusation the applicant is required to be released. The Court is bound to indicate as against what accusation a person is required to be released by the Police in the event of arrest. In the absence of tangible material, any direction to release an applicant under Section 438 of Cr.P.C. would amount to grant of a blanket order of anticipatory bail.

In K. Dayanand Rao And Ors. vs State Of A.P. 1992 (3) ALT 21 it was held that "Section 438 Cr.P.C. does not contain a condition that unless the crime number is mentioned or the FIR is filed no application thereunder would lie. Therefore reading into the Section such a condition not imposed by the Statute. Mentioning of crime number in the application under Section 438 Cr.P.C. is not a pre-requisite for its maintainability.”

In Thayyanbadi Meethal Kunhiraman vs S.I. Of Police 1985 CriLJ 1111 the Kerala High Court observed that:

"In order to invoke the provision, it is not necessary that a case has already been registered or even a first information has been lodged."

Similar is the view taken by the Calcutta High Court in Re: Digendra Sarkar and others, 1982 Crl.LJ. 2197. The Calcutta High Court observed:

"The filing of an FIR is not a condition precedent to the application for anticipatory bail and in such case, the person having reason to believe that he may be arrested on an accusation of non-bailable offence may appear before the High Court or the Court of Session, not for the purpose of being taken into custody of the Court but for getting an order for his release in case he is arrested."

Thus the filing of first information report is not a condition precedent to the exercise of the power under section 438 Cr. P.C. But the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

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Interim Maintenance Of Qualified Wife Under Section 24 Of The Hindu Marriage Act- Detailed Discussion With Landmark Judgments

A wife is entitled to get pendente lite alimony from the husband in view of provisions of Section 24 of the Act if she happens to be a person who has no independent income sufficient for her to support and to make necessary expenses of the proceedings. 

The object behind Section 24 of the Hindu Marriage Act, 1955 is to provide for maintenance, pendente-lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds. 

A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equi-status and respect that the spouse would have enjoyed if he/she continued to live with other spouse. 

The provisions of Section 24 are beneficent in nature and the power is exercised by the Court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse.

Therefore, the question arises is whether a woman having good qualifications and sufficient income is entitled to claim pendente lite alimony from her husband in a matrimonial petition which has been filed against her for divorce on the ground of cruelty. 

The question also here is Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure ? and Whether such spouse should be permitted to get pendente lite alimony at higher rate from other spouse in such condition ? 

These questions were considered in detail in 

Smt. Mamta Jaiswal vs Rajesh Jaiswal  II (2000) DMC 170,  where the petitioner Mamta Jaiswal has acquired qualification as MSc. M.C. M.Ed, and was working in Gulamnabi Azad. College of Education, Pusad, Distt. Yeotmal (MHS). The husband Rajesh Jaiswal is sub-engineer serving in Pimampur factory. The order which is under challenge by itself shows that Mamta Jaiswal, the wife was earning Rs. 4,000/- as salary when she was in service in the year 1994. The husband Rajesh Jaiswal is getting salary of Rs. 5,852/-. 

The Matrimonial Court awarded alimony of Rs. 800/- to Mamta Jaiswal per month as pendente lite alimony, Rs. 400/- per month has been awarded to their daughter Ku, Diksha Jaiswal. Expenses necessary for litigation has been awarded to the tune of Rs. 1,500/-. The Matrimonial Court has directed Rajesh Jaiswal to pay travelling expenses to Mamta Jaiswal whenever she attends Court for hearing of them matrimonial petition pending between them. 

Matrimonial petition has been filed by husband Rajesh Jaiswal for getting divorce from Mamta Jaiswal on the ground of cruelty. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court. 

And the Court answered the above questions thus 

" Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself Or herself in spite of sincere efforts made by him or herself. 

A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose.

In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C. M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service ? It really puts a bug question which is to be answered by Mamta Jaiswal with sufficient cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. 

A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition.

Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a 'dole' to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, site idle and puts his burden on the wife and waits for a 'dole' to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolent as well idles so also does not want an army of self made lazy idles. 

Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. 

If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself .

That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours

The Court held that  

"  In the present case the husband has not challenged the order of alimony pendente lite therefore, no variation or modification was made in the order. This revision petition arises on account of rejection of the prayer made by Mamta Jaiswal when she prayed that she be awarded the travelling expenses of one adult attendant who is to come with her for attending Matrimonial Court such revision petition stands dismissed"

Here are some of the judgments where interim maintenance to a qualified wife was altogether denied or reduced.

In Rupali Gupta Vs Rajat Gupta MAT.APP.(F.C.) 143/2014 The wife had petitioned against the Family Court’s verdict denying interim maintenance to her considering her qualifications and supposed financial independence, given her 13 years of experience as a Chartered Accountant. An amount of ₹22,900 per month towards the maintenance to her two children was, however, awarded by the court. 

The couple got married on July 16, 2005, in Delhi, had two children and lived together till 2013. The woman is a CA while her husband is an Electrical Engineer but runs his own business. 

After the filing of divorce petition by the husband, the wife filed an application seeking interim maintenance for a sum of ₹3 lakh per month for herself and the two children, and ₹1.1 lakh towards litigation expenses. 

The family court had struck down the demand and also observed that the parties were indulging in jugglery of accounts to present a misleading picture of their financial status. The petitioner’s claim that she was earning only ₹7000 per month was put down by the court on  on the basis of illogicality of the claim. 

The appellate Court observed that

" Section 24 of the Hindu Marriage Act makes a provision for award of interim maintenance to a spouse who has no independent income sufficient to support herself and fight the legal battle. "

The court held that "the decision taken by the Family Court was a balanced one and did not call for any interference. The impugned judgment was thus upheld."

In Manokaran @ Ramamoorthy Vs. M. Devaki, AIR 2003 Mad 212 the High Court of Madras while construing the provision of Section 24 of the Hindu Marriage Act and relying on its earlier decision reported as Kumaresan Vs.Aswathi held that for grant of maintenance, the party should not have sufficient independent income for her/his support. 

The Court therefore observed and held that 

" In the light of the materials available it is established that the petitioner/husband herein is getting only Rs.70/- per day or Rs.2000/- per month. On the other hand it is the admitted case of the respondent/wife that she is employed in a private Satelite T.V. drawing a salary of Rs.4,500/-and earning for her livelihood staying with her brother, therefore it cannot be construed that she is not having sufficient independent income." 

" The Family Court lost its sight to consider the above material aspect and therefore the impugned order of the Principal Family Court granting interim maintenance at the rate of Rs.750/- per month and litigation expenses of Rs.1,500/-, is set aside and the Civil Revision Petition is allowed."

In Manish Kumar vs Pratibha (2009) ILR 2 Delhi 246 The Delhi High Court while dealing with a petition under Article 227 of the Constitution of India filed by the petitioner/husband against an order passed by the trial court granting a interim maintenance of Rs.7,500/- per month to the respondent wife under Section 24 of the Hindu Marriage Act (HMA) observed that - 

" The benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can

claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act."

" The provisions of this Section are not meant for equivalising the income of wife with that of husband but are meant to see that where divorce or other proceedings are filed, either of the party should not suffer because of paucity of source of income and the Court should pass an order even during the pendency of such a petition, for maintenance and litigation expenses."

" Where a wife has no income or is without any support for maintaining herself, the Court has to pass an order considering the income and living status of the husband. However, where the wife and her husband both are earning and both are having good salary, merely because there is some salary difference, an order is not required to be passed under Section 24 of HMA."

In this case the court finds that

" The salary slips of the wife has been placed on record which show that she was having salary in the range of around Rs.50,000/- per month. Her statement of salary account from February 2007 to January 2008 shows that she had a take-home salary during this year of Rs.6,80,188/-. The average monthly salary was thus Rs.56,682/-"

And therefore held that

" A person who is earning this much of salary can very well maintain herself with such a standard which may be envy of many and under no stretch of imagination it can be said that the income earned by her was not enough to maintain her. There was no other liability on her. There is no offspring from this wedlock."

"  The trial court has wrongly allowed maintenance to the respondent wife and therefore the impugned order granting maintenance of Rs.7500/- per month to the wife, is hereby set aside. However, the petitioner would be liable to pay the litigation expenses, as ordered by the trial court."

In Anirudha Mishra vs Dr. Sujata Acharya AIR 2004 Ori 1 The Orissa High Court while dealing with a petition filed by the petitioner/husband against an order passed by the trial court granting a interim maintenance of Rs.800/- per month and litigation expenses of Rs. 3,000/-, to the opposite party - wife under Section 24 of the Hindu Marriage Act (HMA) observed that -

" The opposite party is working as a teacher in St. Xavior School. and is drawing salary of Rs 3240/- every month. However, on the other hand it also appears that the present petitioner is working as a News Reporter in O.T.V., Bhubaneswar and is drawing a salary of Rs. 3496/- per month. If comparison is made so far as salaries of the respective parties are concerned, it appears that the petitioner is earning a little more than that of the opposite party. The expenditure incurred by both the parties include treatment of their respective parents. The mother of the opposite party is getting family pension whereas the mother of the present petitioner is yet to get family pension and she is also suffering from cancer.”

" Thus the opposite party stands on much better footing than that of the present petitioner and since she is earning Rs. 3240/- every month towards salary from the school where she is working, it cannot be said that she is not in a position to maintain herself. We are, therefore, of the view that there was no reason for the revisional Court to allow interim maintenance of Rs. 800/- per month. So far as litigation expenses are concerned, we are of the view that there is no reason for us to interfere with the same.”

In Anu Kaul vs Rajeev Kaul CIVIL APPEAL NOS.1789-1790 OF 2009 the Supreme Court finds that

" The Respondent-husband is working as a Senior Head of Mukund Steel Ltd., having its head office at Mumbai and drawing a salary of Rs.40,000/- per month and is entitled to claim perks for the education of his children was not denied by the respondent by filing his counter affidavit or reply statement."

" In the application filed, the appellant admits that she is employed and drawing a salary of Rs.9,000/- per month. However, she asserts, she has to pay an amount of Rs.3,000/- by way of rent to the tenanted premises which she is presently occupying in view of the lis between the parties."

The Court held that " since the appellant is employed and is drawing a salary of Rs.9,000/- per month, we do not intend to enhance the litigation expenses awarded by the High Court during the pendency of the appeal filed by the husband " but no interim maintenance was given. 

But there are many Judgments where though the wife was a qualified one was awarded with maintenance like -

In Smt. Chandana Guha Roy vs Goutam Guha Roy AIR 2004 Cal 36, The wife-petitioner filed an application under section 24 of the Hindu Marriage Act praying for maintenance pendente lite with litigation cost. After that the husband-respondent also filed an application claiming maintenance from the wife. The trial court rejected both the applications on the ground that petitioner-wife is a graduate whereas the O.P.-husband, though a diploma Engineer, has been living a life of vagabond and is totally dependent upon the brothers. Then, on aggrieved by this order the filed an revisional application before the Calcutta High Court. 

The Calcutta High Court observed that

" The learned Trial Judge was wrong in the calculation that if an Arts Graduate lady can do something and should not sit idle then the learned Trial Judge also should have considered that the petitioner-husband is a Diploma Engineer and he also should not sit idle being able-bodied."

" It cannot be said to be believable that in a private firm named Garrison Engineering Company which is a reputed organization has appointed the O.P.-husband as store-in-charge without appointment letter and has also terminated his job without any letter of termination, far less without any disciplinary proceeding or without any enquiry It is also surprising that the learned trial Judge accepted that the service of the O.P.-husband in these hard days was terminated and he did not proceed with any legal proceeding challenging the order of dismissal from service. "

The Court held that

" The impugned order passed by the Trial Court is therefore, set aside. The learned Trial Judge is directed to hear the application afresh filed by both the wife and the husband. Till the learned trial Judge arrives at a decision the court direct the respondent/husband to pay Rs. 1800/-(Rupees One thousand eight hundred only) per month as maintenance to the petitioner/ wife and will go on paying the same month by month by sending the same to the petitioner/wife through Money Order. The respondent-husband is also directed to pay Rs. 5000/- (Rupees Five thousand) only in two equal installments within three months from date to the petitioner/wife towards litigation costs. "

Thus the position is that a qualified wife may entitled to get interim maintenance provided she has no independent income sufficient for her support.  

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