Delhi High Court
Mohd. Shakeel vs Smt. Shaeehna Parveen, And Others on 6 November, 1986
Equivalent citations: 1987CRILJ1509, 1987(1)CRIMES115, 31(1987)DLT171, 1987(12)DRJ127
ORDER
1. By this order, I propose to dispose of the present writ petition of Mohd. Shakeel against his wife Smt. Shahina Parveen, who has been awarded maintenance at the rate of Rs. 300/- per mensem by the Courts below.
2. Most of the facts are not in dispute. On 3-8-1981, the respondent-applicant filed a petition under S. 125 of the Criminal P.C. claiming maintenance at the rate of Rs. 500/- per mensem from the petitioner alleging therein that she was married to the petitioner according to Mohammedan rites on 12-11-79; that after the marriage, the parties started living together as husband and wife at the house of the petitioner; that out of the said wedlock, one female child was born on 21-11-80 at the house of the respondent's parents; that the said child, however expired on 8-7-1981.
3. Narrating the circumstances under which she was compelled to leave her matrimonial home, the respondent alleged that right from the date of marriage, the behavior of the petitioner and the members of his family towards her was very rude and cruel; that the petitioner also used to give her severe beating every now and then as she was not in a position to fulfill their demands for more dowry; that within a span of 4 months, she was ultimately given a severe beating and turned out of the house when she was in an advanced stage of pregnancy; that thereafter the petitioner never cared to maintain her or look after her comforts; that the petitioner even did not enquire about the welfare of the female child and did not provide for any expenses of her maintenance; that the respondent also did not care even to see the face of the child who ultimately died within 8 months of her birth.
4. The respondent is not in a position to maintain herself and is in fact wholly dependent upon her parents and other close relations; that the petitioner, on the other hand, is working as a carpenter and is earning not less than Rs. 1000/- p.m.; that he has no other liability to meet as he is living with his father and other family members.
5. The petitioner (respondent therein) in reply did not challenge the marriage, or the birth or the death of the child. He, however, denied having treated the respondent with cruelty or at any time raised any demand of more dowry. As per the averments, the respondent herself has left the matrimonial home on the pretext of attending a marriage at Meerut and thereafter never cared to come back in spite of repeated attempts on the part of the petitioner. On one occasion, when the petitioner tried to bring back the respondent, he was given beating as a result of which proceedings under S. 107/151 Cr.P.C. were initiated by the Police against both the parties. He also filed a complaint under S. 325/34 I.P.C. against the father and the brother of the respondent who are responsible for not allowing her to come back and join the matrimonial home. The respondent in fact is living separately without any sufficient reason and as such is not entitled to any maintenance. The petitioner is not earning any amount but is working along with his father and other brothers and all of them have a joint mess. The petitioner further prayed for the dismissal of the petition for maintenance.
6. In support of the claim for the maintenance, the respondent-wife examined herself while the petitioner-husband besides appearing as his own witness, produced three more witnesses.
7. The learned Lower Court on consideration of the entire material on record came to the conclusion that the petitioner (respondent therein) had an income of about Rs. 900/- p.m. and has no other liability to meet. He awarded a sum of Rs. 300/- as maintenance to the petitioner (therein), per month from the date of the petition.
8. That the petitioner's revision before the Addl. District Judge challenging the finding of the learned Lower Court was rejected. The present writ petition is by way of a Second Appeal for the setting aside of the Judgments of the Lower Courts. During the course of hearing arguments, learned Counsel for the petitioner pressed three points for the acceptance of the writ petition. The first contention is that before the filing of the petition under S. 125 of the Cr.P.C., the petitioner had already filed a Suit for the restitution of conjugal rights against the respondent. The Court of the Addl. District Judge had passed a Decree for that in his favor, by holding that the respondent had withdrawn from the company of her husband without any reasonable excuse. In spite of the order, she did not care to come and live with the petitioner and on that account alone, she is not entitled to get any maintenance. This fact is not disputed by the respondent but her contention is that this very Judgment of the Addl. District Judge, Delhi is under appeal and is pending in this Court. Unless and until the final verdict is given, the petitioner cannot deprive the respondent of the maintenance as ordered by the learned Lower Courts. The learned Lower Court has acceded to this argument with which I am also in complete agreement. The reasons are not far to seek.
9. The Suit for restitution of conjugal rights was filed by the petitioner in the Court of Senior Sub Judge, Delhi on 13-3-1981. This suit was still at the preliminary stage when the respondent petitioner therein filed and application claiming maintenance in the Court of A.C.M.M. Delhi on 3-8-81. The petition for restitution of conjugal rights was dismissed by the order of Shri V. K. Jain, Sub Judge, Delhi on 4-11-81. Shri S. P. Singh Chaudhary, Addl. District Judge, Delhi accepted the appeal of the petitioner in the restitution suit on 28-1-83. The respondent filed the Second appeal in this Court and the same was admitted for hearing on 21-3-83. In the meantime, Shri Akshaya Kumar, M.M. Delhi, allowed the maintenance to the respondent vide order dated 25-1-84 and the revision of the petitioner against this order was dismissed by Shri V. B. Bansal, Addl. District Judge, Delhi on 4-5-84. From the facts narrated above, it is quite clear that at the time of the filing of petition under section 125 Cr.P.C., a decree for restitution of conjugal rights had not been passed. It only came into existence on 28-1-83 which is under challenge. At this stage, it will be relevant to mention that the said regular second appeal is also being disposed of by me in my separate Judgment by which I have accepted the appeal and dismissed the suit for restitution of conjugal rights. In this way, the impediment in the grant of maintenance, if any, has since been removed.
10. Even otherwise, maintenance to the wife which is her right and who has been able to establish it under S. 125 Cr.P.C. cannot be denied merely because the husband has obtained a decree for restitution of conjugal rights against her. The two proceedings, one under S. 125 Cr.P.C. and the other under the respective personal laws of the spouses operate in different spheres though in a very limited area, they do overlap. Generally, they are intended to serve different purposes. The remedy under section 125 of the Code is purely a discretionary one. It is not so, to that extent under the personal law. The aim and object of this provision under section 125 and other provisions in Chap. IX of the Code is to help the weaker of the two to obtain assistance of the Code in getting maintenance. Discarded or helpless wives, deserted children and destitute parents can get much relief by invoking S. 125 of the Code. This was so observed in the Judgment reported as K. Narayan Rao v. Bhagyalakshmi, 1984 Cri LJ 276 (Kant). This Judgment fairly applies to the facts of the present case. The rule seems to be that in the presence of a Decree for restitution of conjugal rights against the wife, she can still claim maintenance if the conduct of the husband is such as obstructs her to obey such a Decree. However, in view of the fact that suit for restitution of conjugal rights has already been dismissed, this contention loses all importance.
11. It is well settled that the order for grant of maintenance under section 125 Cr.P.C. is not to be made merely for the asking but only on certain conditions being satisfied viz. that the person having sufficient means neglects or refuses to maintain the wife and further the condition that the Magistrate, upon proof of such neglect or refusal, orders grant of such maintenance as may be deemed necessary. It is, therefore, necessary and mandatory for the party claiming maintenance to establish neglect or refusal to maintain on the part of the opponent. In cases where the husband indulged in "cruelty" and attributed immorality to his wife, it would justify her right to live separately and claim maintenance. With this background, let us examine the facts of the present case as to whether the petitioner has withdrawn from the company of her husband without any valid excuse or not. The husband is not obliged to maintain his wife if she is not willing to live with him and discharge her marital obligations without any justification.
12. The case of the respondent is that from the very day of her marriage, she has been maltreated not only by the petitioner but also by the other members of his family. She also states that the stay of the respondent with the petitioner was for about 4 months and during this period, she was pressed to bring more dowry and in her inability to meet their demands, she was given severe beatings off and on. Ultimately, she was driven out of the house with wearing apparels, and since then she has been living with her parents, for more than 3/4 years. The petitioner has not bothered about her welfare nor has he paid any money towards her maintenance. He also neglected to discharge his duties towards the new-born female child who died within a span of 7/8 months. Even though the petitioner has denied each and every allegation of cruelty but on consideration of the entire evidence on this aspect, the learned Lower Courts have come to a definite conclusion that the respondent has a justifiable cause for withdrawing from the company of the petitioner, which finding I hereby confirm. Moreover, the respondent has a reasonable apprehension in her mind that in case she is forced to live with her husband, her life will be in danger. This conclusion is reached if one refers to the criminal litigation which is pending between the parties. It is not disputed that on one occasion, the petitioner went to the house of the father of the respondent and created a row, a quarrel took place between the parties, as a result of which both of them were booked under S. 107/151 Cr.P.C. For the same occurrence, the petitioner also filed a complaint under S. 325/34 I.P.C. against the brother and father of the respondent. In the said complaint case, both the parties led evidence and fought it tooth and nail. Furthermore, the petitioner also filed a complaint against the respondent and her relations under S. 304-A, I.P.C. for having caused death of female child by negligence. This complaint was also hotly contested. It is now stated at the bar that all these complaints have been dismissed.
13. Another circumstance which has prevented the respondent from reverting to the matrimonial home is the writing of the letter Ex. P.W. 1/B by the petitioner to his wife. The bare reading of this letter indicates that he not only expressed suspicion against his wife on account of coming of a person to her house but also used threatening words that in case she failed to join him, there would be a blood shed. The indication from the letter appears to be that under all circumstances, the petitioner wanted his wife to return to him under threats. The adoption of such a course is certainly a good ground for the respondent to decline the offer to her husband to live with her. All these circumstances taken together, leave no doubt in my mind that the courts below were justified in holding that the respondent has justifiably withdrawn and has a reasonable excuse to live separately from her husband and to claim the maintenance.
14. On the quantum of maintenance, I do not propose to have a second thought. The petitioner is an adept carpenter and according to the respondent has more than Rs. 1000/- as income. The petitioner has not denied the fact of his being a carpenter but has tried to avoid mentioning his income by alleging that he is working with his father and brothers and all of them are messing together. Certainly he has no other obligation to meet and considering his earning at Rs. 30/- per day, the learned Court rightly came to the conclusion that the amount of Rs. 300/- p.m. as maintenance cannot be said to be on the higher side. I, therefore, uphold the order of maintenance. The Writ Petition stands dismissed with no order as to costs.
15. Petition dismissed.