Mohd. Ishaq Hussain, v. Syed Rayeesa Sultana,

THE HON'BLE SRI JUSTICE T.SUNIL CHOWDARY CRIMINAL REVISION CASE No.691 of 2013 ORDER:

This Criminal Revision Case is filed under Section 397 and 40 Cr.P.C. challenging the order dated 25.02.2013 passed in M.C.No.74 2011 on the file of Additional Metropolitan Sessions Judge for the Trial JHCBBC-cum-Additional Family court-cum-XXIII Additional Chief Judg Hyderabad wherein and whereby the petition filed by the petitioners und Section 125 Cr.P.C was partly allowed awarding maintenance of Rs.1,000 to the first petitioner and Rs.1,500/- each to the petitioner Nos.2 and 3. For the sake of convenience, parties to the present petition w hereinafter be referred to as they are arrayed before the trial Court. 3 The contention of the learned counsel for the respondent (petition herein) is that the trial Court failed to consider that the respondent has n means to provide maintenance to the petitioners (respondents herein).

H further submitted that the respondents themselves left the matrimonial hom of the petitioner and hence they are not entitled to file petition under Sectio 125 Cr.P.C and seek maintenance from the petitioner herein. Per contra, the learned counsel for the petitioners (responden herein) submitted that it is the duty of the respondent to provid maintenance to the petitioners regardless of his income. He furth submitted that the findings of the Court below are supported by oral an documentary evidence available on record.

5 Now the points that arise for for determination in this Petition are: "1. Whether the petitioners are entitled to claim Maintenance from the respondent?

2. Whether there is any illegality or irregularity in the order passed by the trial Court warranting interference of this Court?"

Both the points are intertwined with each other and hence I a inclined to address both the points simultaneously in order to avo recapitulation of evidence.

7 The factual matrix that led to the filing of the present Criminal Revisio Case is as follows:

8 The marriage of the first petitioner was performed with the responde in the year 2005 as per Muslim rites and caste customs. Out of their lawf wedlock, the first petitioner and the respondent were blessed with tw children i.e. the petitioner Nos.2 and 3 herein. It is further alleged that th respondent intentionally and wilfully neglected to provide maintenance the petitioners. The petitioners have no source of income whatsoever maintain themselves. It is further alleged that the respondent is earnin Rs.40,000/- p.m.

In the said petition, the respondent filed counter admitting th relationship inter alia contending that the petitioners left the matrimoni home of the respondent without any justifiable reason and hence they a not entitled for maintenance. Hence the petition may be dismissed. Before the trial Court, to substantiate the case, on behalf of th petitioners the first petitioner examined herself as P.W.1 and got marke Exs.P.1 to P.3. On behalf of the respondent, the respondent examine himself as R.W.1. To prove the income of the respondent, one Moh Shoukat Ahmed was examined as R.W.2 and Exs.R.1 to R.

3 were marked 11 The trial Court, basing on the oral and documentary evidence and th other material available on record, came to the conclusion that th respondent wilfully and intentionally neglected to provide maintenance the petitioners and accordingly allowed the petition, granting maintenanc of Rs.1,000/- p.m. to the first petitioner and Rs.1,500/- each to the petition Nos.2 and 3 from the date of the passing of the order. Feeling aggrieved b the order dated 25.02.2013 of the trial Court, the respondent filed th present Revision Case.

12 As per the testimony of P.W.1, the respondent harassed her and b her. As per the testimony of R.W.1, the petitioners themselves left th company of the respondent without any justifiable reason. Nothing

elicited in the cross examination of P.W.1 to disbelieve her testimony. It not uncommon to make allegations and counter allegations in matrimoni cases to gain sympathy of the Court. The material available on reco clinchingly establishes that the petitioners left the house of the responde due to the harassment meted out by him. As seen from the testimony P.W.1, basing on a complaint lodged by her, police registered case Cr.no.107 of 2011 against the respondent and his family members for th offences punishable under Sections 498-A of IPC and Sections 4 and 6 Dowry Prohibition Act. This itself prima facie reveals the conduct of th respondent. Except the self serving testimony of R.W.1, there is no oth convincing evidence to prove that on 19.2.2011 the first petitioner left th house of the respondent by taking Rs.1.

00 lakh cash, passport of th respondent and other gold ornaments. If really the first petitioner left th house of the respondent with all the above things, what prevented th respondent to lodge a complaint to the police? The material available o record clearly reveals that the respondent neglected to provide maintenanc to the petitioner. The finding recorded by the trial Court on this aspect supported by oral and documentary evidence.

Except the self serving testimony of P.W.1, there is no oth convincing evidence available on record to show that the respondent wa earning Rs.40,000/- p.m. The testimony of R.W.2 is no way helpful establish that the respondent is not having sufficient means. A perusal of th Exs.P.1 to P.3 clearly reveals that the petitioner has been paying school fe to the petitioner Nos.2 and 3. As per Ex.R.3 salary certificate, th respondent was getting Rs.4,500/- p.m. The fact remains that th respondent has sufficient means to provide maintenance to the petitioners. 14 In Chander Parkash Bodh Raj v Shila Rani Chander Parkash[ wherein the Delhi High Court has opined thus:

7. ... an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is

unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.

15 In Jasbir Kaur Sehgal v District Judge, Dehradun[2] the apex cou held as follows:

"8. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate." 16 In Chaturbhuj v Sita Bai[3], the apex court rules thus: "6. Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this court in Capt.

Ramesh Chander Kaushal v Veena [4] Kaushal ", falls within the 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 [5] ."

Savitaben Somabhai Bhatiya v State of Gujarat 17 The same principle was reinstated in Shamima Farooqui v Shah Khan[6]. This being the position in law, it is the obligation of the husband maintain his wife and children. The maintenance should be awarded as p the status of the parties and financial capacity of the husband. 18 Having regard to the facts and circumstances of the case and also th principle enunciated in the cases cited supra, there is social obligation o the part of the respondent to provide maintenance to the petitioners who a his wife and children. The trial Court awarded maintenance of Rs.1,000 p.m. to the first petitioner and Rs.1,500/- each to the petitioner Nos.2 and

from the date of passing of the order. It may not be possible for the fir petitioner to look after the welfare of the petitioner Nos.2 and 3 with th meager amount of Rs.3,000/-. The amount of Rs.4,000/- p.m. is hard sufficient even for sustenance of petitioners in these days. 19 Viewed from any angle, I am unable to accede to the contention of th learned counsel for the respondent that the amount of maintenanc awarded by the trial Court is on higher side. There is no illegality irregularity in the orders passed by the trial Court warranting interference this Court. The points are answered accordingly. 20 For the foregoing discussion, this Criminal Revision Case is devoid merit and is accordingly dismissed. As a sequel, miscellaneous petitions any pending in this Criminal Petition shall stand closed. _______________________ T.SUNIL CHOWDARY, Date: 09.03.2016 Kvsn [1] 1968 SCC OnLine Del 52 [2] (1997) 7 SCC 7 [3] (2008) 2 SCC 316 [4] (1978) 4 SCC 70 [5] (2005) 3 SCC 636 [6] (2015) 5 SCC 705