Patna High Court - Orders
Mumraz Ahmad vs State Of Bihar & Anr on 2 July, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.1284 of 2010
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Mumtaz Ahmad son of late Noor Mohammad Khan R/O village-Chainpur,
P.S. Chainpur, Distt-Kaimur (Bhabhua).
.... .... Petitioner/s
Versus
1. The State Of Bihar
2.Rukhsana Khatoon wife of Mumtaz Ahmad, D/O late Shamim Ahmad
Khan R/O village-Chainpur, P.S. Chainpur, Distt-Kaimur (Bhabhua) at
present R/O village-Biur (Manpur), P.S. Chainpur, Distt-Kaimur (Bhabhua)
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Syed Asgher Najmi, Adv.
For the O.P. No.2 : Mr. Sunil Kumar Tiwari, Adv.
For the State : Mr. P.K. Jha, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
9 02-07-2013Heard learned counsel for the petitioner, learned counsel for Opposite Party No.2 as well as learned APP for the State.
2. Petitioner has challenged order dated 30.04.2010 passed by Principal Judge, Family Court, Kaimur at Bhabhua in Maintenance Case No. 47 of 2008 whereby and whereunder allowing the prayer of O.P. No.2, petitioner/husband has been directed to make payment of Rs. 3000/- per month in lieu of maintenance.
3. Two fold arguments have been advanced on behalf of the petitioner while challenging the order impugned. The first one is that O.P. No.2/wife on her own volition left the place and in spite of offers made by petitioner/husband, she declined to join hands with petitioner/husband and therefore, this part of O.P./wife Patna High Court CR. REV. No.1284 of 2010 (9) dt.02-07-2013 2 attracts application of Section 125(4) of the Cr.P.C. on account of which she is not at all entitled for maintenance. In addition thereto it has also been argued that O.P. No.2/wife herself divorced the petitioner/husband by declaring 'Khula' and again on this score O.P.No.2/wife is not at all competent enough to raise her plea for maintenance against the petitioner/husband. Furthermore, it has also been submitted that there is complete absence of evidence on the score of means, consequent thereupon, directing the petitioner/husband to pay Rs.3000/- not only appears cumbersome rather contrary to the facts available on the record.
4. On the other hand, learned counsel for O.P. No.2 submitted that the learned lower court after going through the materials available on the record minutely decided the issue as well as also took notice over earning of the petitioner/husband, therefore, the order passed by the learned lower court is fit to be confirmed.
5. Learned APP endorsed the view of O.P. No.2.
6. After going through the record, it is apparent that the status of the O.P. No.2/wife is an admitted one with whom the petitioner/husband had married after death of his first wife and has four children therefrom. It is also apparent from the record that some sort of skirmishes visualized during their marital life and on account of which the O.P. No.2/wife was forced to leave her Patna High Court CR. REV. No.1284 of 2010 (9) dt.02-07-2013 3 marital home and is residing at her Maika since long. It is also an admitted fact that during the intervening period in between the parties a proceeding under Section 498A also erupted.
7. In the aforesaid admitted position, the allegation happens to be on behalf of O.P. No.2/wife that as the petitioner/husband did not care to look after her necessitated for filing of petition under Section 125 Cr.P.C. whereunder she had given the source of means being an owner of a stationery shop as well as also in possession of cultivable land. On the other hand, neither during filing of show-cause nor during cross-examining the witnesses including O.P. No.2/wife, the event of 'Khula' has been brought in picture nor so suggested but subsequently, while the O.P. was being examined, he had disclosed the aforesaid event however the same is itself found to be controverted under his cross-examination in para-2 and 3 along with examination of OPW No.2, his brother, Md. Israr who too had not supported the factum of 'Khula' , moreover OPW No.3, Saddab Khan had narrated the event of 'Talaq' .
8. 'Khula' and 'Talaq' are two different things exercised by two different identities on the basis of two different grounds. Virtually, 'Khula' and 'Talaq' are not synonyms to each other. 'Khula' is exercised by wife while 'Talaq' is prerogative of the husband. Therefore, on account of inconsistent testimony on Patna High Court CR. REV. No.1284 of 2010 (9) dt.02-07-2013 4 behalf of the petitioner/husband as well as on account of non disclosure of the aforesaid event in the show-cause as well as not cross-examining the witnesses on behalf of O.P. No.2/wife including the wife herself on this very score, the story of 'Khula' and 'Talaq' did not inspire.
9. With regard to leaving of place of petitioner/husband by the O.P. No.2/wife, apart from disclosure made in the petition regarding torture as well as institution of a case under Section 498A IPC against the petitioner/husband, it is evident from the evidence of witnesses that, that aspect has not been challenged. Even under para-9, on court question the O.P. No.2/wife had stated that on account of danger on his life, she is not in a position to go to the place of petitioner/husband. Contrary to it, it is evident from the evidence of petitioner/husband that neither any kind of assurance nor an undertaking has been offered which could be found justified for reposing confidence.
10. Now coming to source of means, O.P. No.2/wife has been examined as applicant witness no.1 wherein at para-2, she had disclosed that husband is earning Rs.15,000/- per month. While cross-examining this PW, from para-8 a suggestion has been given to this witness that it is wrong to say that Opposite Party has got no landed property or is running shop. Furthermore, she had disclosed that she had not seen the document with regard Patna High Court CR. REV. No.1284 of 2010 (9) dt.02-07-2013 5 to land but the shop happens to be at Chainpur Bazar and further detailed the things which are being sold there and is found supported with the evidence of other PWs.
11. On the other hand, petitioner/husband has himself got examined as OPW No.1 wherein he has disclosed that he earns, anyhow, Rs. 800/- per month. O.P. No.2/wife is engaged in doing Biri business from which she earns Rs. 8000/- or 10000/- per month. During cross-examination a suggestion has been given that he runs stationery shop as well as he has got landed property. When his evidence is gone through minutely, it is apparent that he had not denied the positive assertion of the petitioner with regard to running of a stationery shop as well as having landed property. During his examination-in-chief non denial by the petitioner/husband is another factor to be taken up against the petitioner. This part is further found supported with the fact that OPW No.2 happens to be full brother of petitioner/husband, had not spoken anything on the score of means and that happens to be the status of OPW No.3.
11. Thus, after scrutinizing the evidence on record, it is apparent that the learned lower court has rightly construed that there is non application of Section 125 (4) Cr.P.C. because of the fact that there was no willful act at its own end of O.P. No.2/wife in deserting the petitioner/husband rather evidence goes contrary Patna High Court CR. REV. No.1284 of 2010 (9) dt.02-07-2013 6 to it.
12. It is further traced from the conduct of the petitioner/husband that the story of 'Khula' as well as 'Talaq' has subsequently been introduced with mala fide intention to get rid of the instant proceeding anyhow. With regard to sources of means, again the petitioner/husband failed to deny the same with cogent material against the evidence led by the wife.
13. Hence, I do not see any illegality in the order impugned and on account thereof, the instant petition is found devoid of merit and is, accordingly, rejected.
(Aditya Kumar Trivedi, J) perwez