Allahabad High Court
Mohammad Kaish vs State Of U.P. & 3 Others on 10 January, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 14 Case :- CRIMINAL REVISION No. - 25 of 2020 Revisionist :- Mohammad Kaish Opposite Party :- State Of U.P. & 3 Others Counsel for Revisionist :- Pramod Kumar Shukla Counsel for Opposite Party :- Govt. Advocate Hon'ble Virendra Kumar Srivastava,J.
1. The instant criminal revision has been filed against the judgment and order dated 7.12.2019 passed by Principal Judge, Family Court, Barabanki in Misc. Case No. 568 of 2017, under Section 125 Cr.P.C. (Nasreen Fatima and others vs. Mohd. Kaish), whereby, the learned Judge has allowed the application for maintenance, filed by the opposite party nos. 2 to 4 and granted the maintenance of Rs. 3,000/- per month to the opposite party no. 2, Nasreen Fatima (wife of the revisionist) and Rs. 1,000/- each in favour of respondent nos. 3 and 4, namely, Tuba and Raiyan (minor children of the revisionist).
2. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
3. Learned counsel for the revisionist submits that the revisionist is a poor person having no means of income; his income is only Rs. 5,000/- per month in view of the certificate issued by the competent authority/Tehsildar, Mahmoodabad (annexure no. 2). Learned counsel further submits that the amount of maintenance granted in favour of respondent nos. 2 to 4 is too high and the revisionist is not in a position to pay the same. Learned counsel further submits that the amount of maintenance granted in favour of respondent no. 2 to 4 be reduced so that the revisionist may pay the same.
4. Learned A.G.A. has vehemently opposed the submission made by the learned counsel for the revisionist and submits that as per the evidence and material available on record, it is clear that the revisionist is the owner of an Omni van, a shop of battery service and also an owner of four plots which shows that the revisionist has sufficient money to pay the maintenance amount granted by the lower Court. Learned A.G.A. further submits that the opposite party nos. 2 to 4 have been expelled by the revisionist from his house. They are the wife and minor children of the revisionist having no means to survive. Hence, the impugned order is legal and requires no interference.
5. Since only Rs. 3,000/- per month has been granted to the respondent no. 2 and Rs. 1,000/- each has been granted to the respondent nos. 3 and 4 (total Rs. 5,000/-) as maintenance, in view of the facts and circumstances of this case, no notice is required to respondent no. 2 to 4 in the interest of justice and the instant revision is being decided only upon hearing of learned counsel for the revisionist and learned A.G.A. for the State.
6. Admittedly, respondent no. 2, Nasreen Fatima is the wife of the revisionist, whereas, respondent no. 3, Tuba aged about 8 years and respondent no. 4, Raiyan aged about 5 years are minor children of the revisionist who are not residing with the revisionist due to a matrimonial dispute arisen between the revisionist and his wife.
7. Record reveals that respondent no. 2, Nasreen Fatima, filed an application under Section 125 Cr.P.C. with the allegation that she is legally wedded wife of the revisionist, and their marriage was solemnized on 8.12.2009 and during their wedlock, the respondent no. 3, Tuba and respondent no. 4, Raiyan came into existence who are residing with the respondent no. 2. It was further alleged in the said application that due to some matrimonial disputes, the revisionist used to beat and torture her and also had escaped with a girl, named, Manthasha. It was further alleged that without any sufficient cause, the revisionist had abandoned the respondent nos. 2 to 4. Respondent no. 2 is residing with her parents along with respondent nos. 3 and 4. She is a Pardanasheen poor lady and unable to maintain herself as well as her children. It was further alleged that the revisionist is healthy and able bodied person having four plots; a building in village Pateypur and a four wheeler car; he is very healthy and prosperous and also owner of a shop named as Mohd. Kaish Battery Services of Inverter Battery, electronic as well as electrical goods. It was further alleged that the revisionist's income is Rs. 2,00,000/- per month. It was prayed that Rs. 15,000/- for the maintenance of respondent no. 2 and Rs. 5,000/- each for the maintenance of respondent nos. 3 and 4 (total Rs. 25,000/-) be granted to the respondent nos. 2 to 4 as maintenance.
8. Revisionist-opposite party appeared before the Family Court and while admitting that the respondent nos. 2 to 4 are his wife and children, he filed an objection/written statement to the effect that he had purchased a plot of Rs. 10,00,000/- in favour of respondent no. 2 and also purchased a Life Insurance Policy of Rs. 10,00,000/-. It was further stated by the revisionist that the respondent nos. 2 had suo-moto abandoned him; she had gone from his house and not ready to return in his house despite several requests. According to him, an application for restitution of conjugal rights has been filed by him which is pending before the Family Court, Sitapur. It was also alleged in objection filed by the revisionist that the respondent no. 2 is skilled in stitching and is able to maintain herself as well as respondent nos. 3 and 4 whereas the revisionist is a poor labourer, any how to maintain and manage himself and is not capable to pay any amount as maintenance.
9. Before the Family Court, the opposite party no. 2 examined herself as PW-1 and Mohd. Rafiq as PW-2 and filed a documentary evidence whereas revisionist examined himself as DW-1 and Shoaib as DW-2 and also filed some documentary evidence.
10. From perusal of record it reveals that the revisionist had admitted during the proceeding that he was owner of Mohd. Kaish Battery Services and a four wheeler car; although, he stated that he had sold that shop and the car is also not in use. DW-2, Mohd. Shoaib brother of revisionist has also admitted the same fact as stated by the revisionist that the alleged shop and car were sold by the revisionist. He has further admitted that the car was sold by the revisionist just 1 1/2 or 2 months ago.
11. Upon considering the evidence and material on record produced by both parties, the learned Judge, Family Court while placing reliance upon Abdul Salim vs. Smt. Najima Begum (1980) Cr.L.J. 232; Ashok Kumar vs. Additional Sessions Judge, Varanasi (1991) ALJ 925 and Mithlesh Kumari vs. Bindhawasani (1989) ALJ 443, allowed the maintenance application filed by the applicant and granted the maintenance as above.
12. Law relating maintenance as provided by Section 125 Cr.P.C. is based on social justice as well as on humanitarian ground, whereby, the husband/father is legally bound to maintain his wife and children according to his status and capacity. Hon'ble Supreme Court in Chaturbhuj vs. Sita Bai (2008) 2 SCC 316, while dismissing the appeal filed by appellant (Husband) and discussing the legal position in this regard as held as under:-
"6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. 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. Mrs. Veena Kaushal and Ors. 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 and Ors.
7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent wife was able to maintain herself.
8. In an illustrative case where wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C."
13. Hon'ble Supreme Court in the aforesaid case has held that if the husband of the deserted wife has succeeded to place some material on record to show that his wife was earning some income, the maintenance application cannot be rejected.
14. So far as the submission of learned counsel for the revisionist that the revisionist is poor man and is not able to pay the maintenance granted in favour of the respondent nos. 2 to 4, is concerned, from perusal of record it reveals that the revisionist is healthy, aged about 31 years and able bodied person. He was running a shop named Mohd. Kaish Battery and Inverter Service, Electronic and Electrical Goods and also was owner of four wheeler. In my opinion, only on the ground that after the dispute arisen between them, he sold his shop and car as stated by revisionist, he cannot be exempted from his liability to maintain his wife and children.
16. In my view, the quantum of maintenance granted in favour of respondent nos. 2 to 4 i.e. total Rs. 5,000/- is neither illegal nor excessive and no interference is required at this stage.
17. The learned judge has passed the impugned order after applying his judicial mind and in the light of submission made by the learned counsel for both the parties and also considering the evidence and material available on record. The impugned order is well discussed, well reasoned and there is no illegality or impropriety in it.
18. The revision lacks merit and is, accordingly, dismissed.
19. Office is directed to send a copy of this order to the concerned lower Court for necessary information and compliance.
Order Date :- 10.1.2020 saurabh