Allahabad High Court
Shahabuddin vs Smt. Shakeela & Another on 9 December, 2016
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 44 Case :- CRIMINAL REVISION No. - 983 of 2009 Revisionist :- Shahabuddin Opposite Party :- Smt. Shakeela & Another Counsel for Revisionist :- Shakti Dhar Dube, Neeraj Dube Counsel for opposite party: GA Hon'ble Amar Singh Chauhan,J.
This criminal revision has been filed against the judgement and order dated 24.2.2009 passed by the Principal Judge, Family Court, Meerut in Case No. 147 of 2003 (Shakeela Vs. Shahabuddin) whereby the learned Judge allowed the application under Section 125 Cr.P.C. moved by the applicant-opposite party No. 1 and awarded maintenance at the rate of Rs. 2000/- each per month to the wife Smt. Shakeela and daughter Km Nimmi from the date of presentation of the application.
The brief facts giving rise to the present revision are that an application under section 125 Cr.P.C. was moved by Smt. Shakeela, the applicant-opposite party No. 1 to the effect that her mariage was solemnized on 07.5.1969 with Shri Shahabuddin, the revisionist. From their wedlock two daughters and a son were born. In the meantime the revisionist has developed illicit relations with the sister of the opposite party and due to that relation the revisionist used to beat, neglect and torture opposite party. Due to the bad character of the revisionist, the sister of opposite party was got married with one Karimullah. The revisionist is doing the work of tailoring and earning Rs. 6000/- per month and expend all the money on lavishness. The applicant-respondent No. 1 claimed Rs. 10,000/- as maintenance for herself and her children. Applicant-respondent No. 1 had married her elder daughter after taking loan and due to paucity of money further education of her younger daughter discontinued after intermediate.
In his written submissions the revisionist has questioned the character of opposite party. He further stated that the opposite party earns Rs. 20,000/- and Km. Nimmi has become major on 22.1.2002. It is further stated in the written submissions that applicant put pressure on the revisionist to live with her in her Maika and hand over all the income to her. All the children of the revisionist are major. Opposite party is having illicit relations with one Abad alias Naim.
The learned Principal Judge, Family Court, Meerut after evaluating the evidence adduced by the parties, granted maintenance to the wife and daughter at the rate of Rs. 2000/- per month from the date of presentation of the application.
Heard Shri Shakti Dhar Dube, learned counsel for the revisionist, Shri Nitin Sharma, learned counsel for the opposite party Nos. 1 and 2 and learned Additional Government Advocate representing the State.
Learned counsel for the revisionist submits that once the revisionist has divorced the opposite party No. 1, she is not entitled to maintenance and the learned Principal Judge, Family Court, Meerut has erred in passing the impugned order.
Learned counsel for the revisionist further submits that the impugned order has been passed in the teeth of the order passed by this Court in Criminal Misc. Application No. 16831 of 2005 whereby this Court has directed that Km. Nimmi shall get interim maintenance till she attains majority.
Per contra, learned counsel for the respondents and learned Additional Government Advocate supported the judgement of learned Family Court.
Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.:
Order for maintenance of wives, children and parents
125. (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct."
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. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. 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.
Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The court held as under:
" 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. 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 (2005) 3 SCC 636.
In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:
"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to 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."
So far as the contention of learned counsel for the revisionist that as the revisionist has divorced respondent No. 1, she is not entitled to maintenance, is concerned, learned Family Judge has held that although an averment regarding divorce has been made by the revisionist, but the same has not been proved. Moreover, the names of the witnesses of divorce have not been mentioned by the revisionist and no efforts whatsoever has been made to reconcile the matter.
Hon'ble Supreme Court in Shamim Ara Vs. State of UP, 2002 Cr.L.J. 4726 SC has held as under:
" The correct law of Talak, as ordained by Holy Quran, is: (i) that 'talaq' must be for a reasonable cause, and (ii) that it must be preceded by an attempt to reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected.
So far as the contention of learned counsel for the revisionist that the impugned order has been passed in the teeth of the order passed by this Court in Criminal Misc. Application No. 16831 of 2005 whereby this Court has directed that Km. Nimmi shall get interim maintenance till she attains majority, is concerned, this issue cannot be considered by this Court in exercise of revisional jurisdiction. it is always open to the revisionist to approach the court concerned to lead evidence to the effect that Km. Nimmi is major and get the order modified.
Moreover, the order of the learned Family Judge is also justified that opposite party No. 1 married her daughter after taking loan and no cooperation was extended by the revisionist.
In view of what has been indicated herein above, there is no infirmity or illegality in the order dated 24.2.2009 passed by the Principal Judge, Family Court, Meerut.
The revision is accordingly dismissed.
Interim order dated 26.3.2009 stands vacated.
However, it is provided that in case the revisionist moves an application for modification of the order dated 24.2.2009 passed by the Principal Judge, Family Court, Meerut in respect of opposite party No. 2 Km Nimmi regarding her majority by leading evidence, the same shall be decided by the court concerned expeditiously in accordance with law.
Dated: 09.12.2016 Ishrat