The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Sheikh Sadam Cr. Rev. No.426 of 2022 --------- ... -Versus- Petitioner 1. The State of Jharkhand 2. Shahnaz Perveen 3. Samar Khan … Opposite Parties --------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner For the State For the O.P. No. 2 : Mr. Afaque Rashidi, Advocate : Mrs. Anuradha Sahay, A.P.P. : None --------- JUDGEMENT Dated: 25.01.2024 This Criminal Revision Application has been filed on behalf of the petitioner challenging “Final Order” dated 01.02.2022 in Original Maintenance Case No. 105 of 2019 passed by Sri Shambhu Lal Shaw, learned Principal Judge, Family Court, Hazaribagh by which learned Principal Judge has directed the petitioner to pay Rs. 6,000/- per month to the O.P. No. 2 (i.e. wife) and Rs. 4,000/- per month to the O.P. No. 3, (i.e. son) total Rs. 10,000/- per month from the date of the order and maintenance has been allowed to the O.P. No. 3 till attaining his majority. 2. The case of the O.P. No. 2 (i.e. wife) -the O.P. No. 3 (i.e. Son) (who were the petitioner No. 1 and the petitioner No. 2 in the learned Court below) is that marriage between the petitioner and the O.P. No. 2 was solemnised on 25.03.2014 as per Muslim rites and customs in Hazaribagh District and out of their marital wedlock, they are blessed with one child namely Samar Khan (i.e. O.P. No.3) aged about three (03) years. At the time of marriage the parents of the O.P. No. 2 had given sufficient jewellery of gold and silver and other house of articles -2- to the petitioner and his family members. However after the marriage, they started torturing her physically and mentally and committed cruelty upon her and even after some time she was not provided with proper food and living as per her requirements. It has been stated that on 25.08.2015 the petitioner and his family members confined her in the room and brutally assaulted her for non-fulfilment of demand of Rs. 50,000/- and one Hero Honda Motorcycle and ultimately she has been ousted from her matrimonial home on after snatching all her jewelleries. It is stated that the wife - O.P. No. 2 has no source of income to maintain herself and her child and they are fully dependent upon the income of her father and the husband-petitioner is not making any payment for her maintenance. It has been stated that respondent – petitioner is a man of means JCB Operator at Gujrat and earning Rs. 25,000/- to Rs. 30,000/- per month and has also agriculture land from which he earns approx. Rs. 2,00,000/- to Rs. 2,50,000/- per annum and hence a sum of Rs. 10,000/- + Rs. 10,000/- total Rs. 20,000/- be provided for maintenance of the O.P. No. 2 and O.P. No. 3 (i.e. the wife and the son) respectively by the petitioner. 3. The case of the respondent-husband i.e. the petitioner as per his show cause, in brief, is that the maintenance case is not maintainable and allegation levelled against the petitioner and his family members are false and fabricated and the petitioner had never received any dowry as pre marriage condition. It had been stated that the petitioner was maintaining the O.P. No. 2 by providing all facilities like food, clothes, shelter and social status and there is no dispute between the petitioner and the O.P.No.2. It is stated that the petitioner had also filed Matrimonial Title Suit No. 222 of the 2015 for bringing to the -3- O.P. No. 2 to his house. It has been further stated that the petitioner is working as a labour only by doing labour work and he is not a driver of any type of vehicle. It has further been stated that the respondent – petitioner is an unemployed and he is neither earning nor has got any landed property and the petitioner
Facts
has further denied any panchayati between the parties. 4.
Legal Reasoning
28. It is well settled that even if a wife is working and managing some amount and earning some little amount then also the liability of the husband is not absolved off to maintain his wife and children. 29. It is well settled that the wife i.e. O.P. No. 2 and her son i.e. O.P.No. 3 will be entitled to maintenance as per the status of income and life style of her husband. 30. It has been held in Chaturbhuj Vs Sita Bai reported in (2008 ) SCC 316 at paragraph 8, as follows: Para 8:- “In and illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that he 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 Dutt V. Kamla Devi it was observed that 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. 31. Even the wife is doing sewing work for surviving herself and for maintaining her minor child, then it cannot absolve of the right of the husband i.e. the petitioner to maintain his wife -13- and son . 32. It has been held in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.” -14- 33. It has also come on record from the evidence of the O.P-petitioner that even from the evidence of O.P.W. 1, the O.P.W. 3 and the O.P.W. 4 that the petitioner was working in J.C.B. Machine as a Helper in Gujarat, therefore the fact stands proved that the petitioner was earning in Gujarat and it is unbelievable that he was being paid Rs. 150/-200/-300/- per day for working in J.C.B. Machine in Gujarat and it clearly shows that the petitioner has supressed the real facts before the learned Court below. 34. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 that there is not straight jacket formula for deciding quantum of maintenance and it has to be decided on the basis of evidence of the parties in each case separately in the evidence used by the parties. 35. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- to be the quantum of maintenance “Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing awarded. Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subpsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be -15- material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it. Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able- bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13) “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty,equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.” Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.” 36. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-56, 59, 60 and 61 which are as follows:- “Para-56:-Similarly, in Tanushree & Ors. v A.S.Moorthy, the Delhi -16- High Court was considering a case where the Magistrate’s Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that while considering an application u/S. 12 of the D.V. Act, the Court would take into account an order of maintenance passed under Section 125 Cr.P.C., or any other law for the time being in force. The mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. There is a distinction in the scope and power exercised by the Magistrate under Section 125, Cr.P.C. and the D.V. Act. With respect to the overlap in both statutes, the Court held : (SCC Online Del para 5) “5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two proceedings are independent of each other and have different scope, though there is an overlap. Insofar as the overlap is concerned, law has catered for that eventuality and laid down that at the time of consideration of an application for grant of maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section 125 Cr.P.C. shall be taken into account.” (emphasis supplied) Para-59:- In Sudeep Chaudhary v Radha Chaudhary25 the Supreme Court directed adjustment in a case where the wife had filed an application under Section 125 of the Cr.P.C., and under HMA. In the Section 125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded under Section 125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial proceedings under HMA, and was not to be given over and above the same. Directions on overlapping jurisdictions Para-60:- It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, -17- independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant. Para-61:- To overcome the issue of overlapping jurisdiction, and avoid
Arguments
Heard Mr. Afaque Rashidi, learned counsel for the petitioner and Mrs. Anuradha Sahay, learned A.P.P. However no one appears on behalf of the O.P. No. 2 to argue the case on 22.09.2022, 27.09.2022 and 20.10.2022 respectively, although one Mr. Aditya Kumar Jha , Advocate had filed the Vakalatnama for appearing on behalf of the O.P. No. 2 and as such the order of this case was reserved in absence of any argument advance of the O.P. No. 2 . 5. It transpires from the record that the Wife i.e. the O.P. No. 2 has got examined three (03) witnesses in support of her case , who are as follows:- (i) Shahnaz Perveen (i.e. the wife), (ii) Mohd. Afroz and (iii) Salim Khand. 6. However, no document has been marked as Exhibit on behalf of the Wife-O.P. No. 2. 7. The respondent- petitioner has got examined four (04) witnesses in support of his case who are as follows: (i) Mohd. Ishak Anari, (ii) Sheikh Sadam (i.e. the petitioner-husband), (iii) Sheikh Jahur and (iv) Sajid Khan. 8. The following documents has been marked as the Exhibits on behalf of the husband-petitioner :- -4- i) Exhibit A is Certified Copy of judgment of Original Suit No. 222 of 2015 which has been marked as public documents by the learned Court below. 9. Thereafter the following issue had been framed by the learned Court as follows:- (i) Whether the petitioner No. 1 is legally wedded wife of O.P. and petitioner No. 2 –son born out of said wedlock? (ii) Whether the petitioners are unable to maintain themselves? (iii) Whether the OP has sufficient means and what is his income? (iv) Whether the OP has been voluntarily neglecting to maintain the petitioners? (v) Whether the petitioner No. 1 has sufficient cause to live separately? (vi) Whether the petitioners are entitled of maintenance from O.P. and if yes then quantum? 10. The learned Court below has decided point No. 1 in favour of the wife- O.P. No. 2 and the son-O.P. No. 3 (i.e. the petitioner No. 1 and the petitioner No. 2 in the learned Court below). The learned Court below has held that the petitioner No. 1 i.e. the O.P. No. 2 is legally wedded wife of the O.P. - the husband (i.e. the petitioner in this Criminal Revision Application). While the petitioner No. 2 –O.P. No. 3 is son born out of said marital wedlock. Learned Court below has decided the point No. 2 and held that although the husband did not plead anything regarding the source of income of the O.P. No. 2 but one O.P.W. 1 had deposed that the petitioner No. 1- i.e. O.P. No.2 is working as -5- Tailor in her house, and point No. 2 thus was adjudicated accordingly. On the question of point No. 3, the learned Court below has held that though there is no proof of income of the Opposite party i.e. the petitioner but being an able bodied person, he is supposed to be earning and enough to maintain himself and family. The learned Court below has decided the point No. 4 against the O.P.- petitioner and has decided the point No. 4 is a cryptic manner by simply observing that the O.P. himself , while been examined as O.P. W. 2, had admitted and stated in cross examination that in last Ramzan he paid Rs. 2,000/- via mobile to the petitioners i.e. O.P. No. 2 and O.P. No. 3 respectively on demand and held that it is not proved that husband- petitioner has given maintenance to the petitioners – O.P. No. 2 and O.P. No. 3 on regular basis. Learned Court below has decided the point No. 5 as to whether O.P. No. 2 has sufficient cause to live separately and answered that the O.P- husband himself and other OPWs have admitted that the O.P has contracted second marriage and though second marriage is not illegal among Muslims( as the parties are Muslims) , yet it is sufficient ground even for a Muslim wife to live separately and decided the point No. 5 in favour of the Wife- petitioner No. 1- O.P. No. 2. Learned Court below on the question of point No. 6 on the point of entitlement of maintenance from the O.P., i.e. the petitioner and has held that petitioners i.e. O.P. No. 2 and O.P. No. 3 are entitled to maintenance from the O.P. – the petitioner. However the learned Court below has decided the quantum of maintenance by simply directing the petitioner ( O.P. in the -6- learned court below) to pay Rs 6,000/- to Shanaz Perveen- petitioner No. 1 i.e. wife and has further directed the O.P. – the petitioner to pay Rs. 4,000/- per month to Samar Khan-petitioner No. 2 i.e. the O.P. No. 3 till majority from the date of passing of the order . 11. Therefore, the learned Court below has held on the basis of evidence of the parties and documents relied on their behalf that the O.P. No. 2 and O.P. No. 3 are entitled to maintenance as the O.P. No. 2 is legally wedded wife of the petitioner whereas the O.P. No. 3 is own son of the petitioner and the petitioner has neglected her without any reason and the learned Court below has further held that the O.P.- the petitioner has performed second marriage also. 12. From perusal of the evidence of the parties , it would appear that P.W. 1 is the wife-O.P. No. 2 and she has stated during her evidence that her marriage was performed with the petitioner on 25.03.2014 and she stayed for around 1 ½ ( one and half year) to 2 (two) years in her matrimonial home and her husband is plying J.C.B. Machine in Gujrat , however she was assaulted in her matrimonial home by her Father-in –Law, Mother-in-Law and other In-Laws members and whenever she used to inform her husband about this fact then her husband used to take side of his parents . She further stated that on 25.08.2015, the O.P. No. 2 was ousted by the parents of the petitioner and since then she is living in her Mayke. Thereafter the husband–the petitioner had filed a case for Bidai of the O.P. No. 2 which was disposed on 18.12.2019. She has stated that her husband is earning Rs. 25,000/- to Rs. 30,000/- per month by plying J.C.B. machine and had sufficient landed properties and has got three ponds and he is earning Rs. 50,000/- to 60,000/- per month. He has further -7- stated that even her father-in-law is working in Dubai. 13. During her cross-examination she stated that she has also instituted a case of dowry torture against her husband which is pending and her husband had not taken her to her matrimonial home, however she has admitted that the case of Dowry Prohibition Act has been dismissed but she has seen the Agriculture Produced and paddy & Mahua were agriculture produce and fishes were taken from three (03) ponds. However, she has got no documentary evidence of the income of her husband. 14. Thus, from the scrutinizing the evidence of P.W.1 (i.e. the O.P. No.2), it is the evident that she has fully supported her case and stated that she has been ousted from her Matrimonial home by the parents of the petitioner on 25.08.2015 She further admitted for doing Sewing work in the Bidai Case. Thus a wife may not have expected to prove the income of the petitioner through documentary evidence, if he is working outside the State but at the same time she has emphatically stated that her husband has got sufficient agricultural property and has got three (03) ponds and even her father-in-law is working in Dubai. Thus the family of the husband-petitioner appears to be well to do. 15. From, perusal of the evidence of P.W. 2 Mohd. Afroz, it appears that he is the cousin of the O.P. No. 2 and has supported the case of the O.P. No.2 during his evidence and as such the same is not being repeated here. During cross-examintion he also admitted that he has not seen any paper of income of the O.P. and has stated about the agriculture land of the O.P. No. 2. -8- Thus, P.W. 2 is a hearsay and formal witness but he has supported the fact that the O.P. No. 2 is living in her maike for around 4 ½ years . 16. P.W. 3 is the Maternal Uncle of the O.P. No.2 and he has also supported the case of the petitioner during his evidence. During his cross-examination he could not say the plot Number of the land of the petitioner but has asserted that the O.P. –petitioner has got land at the four corner of the village. He had admitted that he never gone to Gujrat and had not seen the petitioner taking any salary . Thus P.W. 3 has supported the case of the wife – O.P. No. 2 on the point of their marriage and on the point of living separately in her Maike and the O.P.- the petitioner is not maintaining her . 17. Before discussing the evidence of the husband- petitioner, it will be relevant to refer Exhibit A which has been marked by the learned Court below on behalf of the O.P.-the petitioner. 18. Exhibit A is the photocopy of certified copy of the judgment dated 18.12.2019 passed in Original Suit No. 222 of 2015 filed by the P.O. – the petitioner against the O.P. No. 2, O.P. No. 3 and one Nazani Khatoon i.e. the mother of the O.P. No. 2 under section 281 of the Mohamddan Laws for restitution of conjugal right and by the said judgment by the learned Principal Judge , Family Court Hazaribag had dismissed the suit filed by the O.P.- the petitioner to bring back his wife –O.P. No 2 and son-O.P. No. 3 in his house under Rule 281 of the Mohamddan Laws on merit. Therefore, the claim of the petitioner had not been found genuine by the learned Court below . -9- 19. So far, oral evidence of the husband – petitioner is concerned, O.P.W.1 is Md. Ishak Ansari and he stated that the applicant –O.P. No. 2 has voluntarily gone to her Maike and she is doing Sewing work and giving tuition to the child . He has further stated that the O.P-petitioner is a Khalasi in Poclain Machine and he is not working since last 6-7 years. However, during cross-examination he stated in para 12 that after lockdown the O.P.-petitioner was in his house but earlier prior to that he was working in Gujarat but he has never gone to Gujarat. He further admitted in para 21, 23 and 24 of his cross-examination that the O.P.-petitioner has got his own house which is double storeyed house and built on 1-2 decimal land and father of the O.P.- the petitioner has got some land. Thus from scrutinising the evidence of the O.P.W. 1, it is the evident that the O.P- the petitioner was working in Gujarat at the time of marriage and is said to have been seen in the house after the lockdown period. He further stated that the O.P.- petitioner has got his own house which is double storeyed house and he has also got agricultural land. 20. O.P.W. 2 is the O.P. i.e. the petitioner himself and he has admitted his marriage with the O.P. No. 2 on 25.03.2014 and she remained in her matrimonial home for three (03) months and earlier the conjugal right was satisfactory but after arrival of mother of the O.P. No. 2, she was taken to her in Maike and even the Panchayati was held . Thereafter, on instruction of his father, he send his wife in Bidai for seven days but he alongwith his father arrived to take Bidai to his wife, then they had faced brick batting. Thereafter, they went to police station but nothing was done. He further stated that he also filed a case for Bidai and stated that he is maintaining his wife and child. He also stated that -10- he is doing the work of Khalasi in Guajrat and getting Rs. 200/- per day. He has stated that even his parents are ready to live with her in the house so that he alongwith his wife and children may live but his wife desires that he i.e. her husband should live in her Maike and behave like her brother. 21. However, during his cross examination he stated that after giving birth to a son, his wife had gone to her Maike and he merely stated that he has evidence of giving maintenance amount to his wife and child and he had paid Rs. 2,000/- by mobile to his wife. He further stated in para 19 of his cross- examination that he has performed second marriage in year 2019 in Allahabad and his legally wedded wife and one girl child are also living with him. He has denied the suggestion for demanding additional dowry and for torturing this petitioner. 22. Thus, from the scrutinizing the evidence of the O.P.W. 2 i.e. the O.P.- petitioner, it is evident that he has tried to conceal his wrong act and trying to save his family members and his evidence is a bundle of lies as he is not aware as to on which ground his Bidai case i.e. suit filed under Rule 281 of the Mohammadan Laws which was dismissed. Although he stated for giving maintenance to his wife and child but on being cross-examined, he failed to show any proof of payment of wife and children except to Rs. 2,000/- by way of mobile in the last Ramzan at the time of his deposition and for which there is no documentary evidence. He also admitted that he has performed second marriage and he is living with his second wife and girl child and even he had concealed the name of his second wife. 23. O.P.W.3 is father of the petitioner and he stated that after marriage between parties on 2014 his daughter-in-law lived in house in two months and thereafter her mother took her to her -11- Maike and she use to do cruelty with them and she has not returned to her matrimonial home. His son has instituted a case for bringing back his wife which has been disposed of and his son was earning 3,000/- per month by doing Khalasi work. However during cross-examination he admitted in para 9 that the case, instituted by his son for bringing back his wife, has been dismissed. He also admitted that his son was doing work in Gujarat in J.C.B. Machine and worked as a ‘Helper’. He further admitted that he got performed second marriage of his son but he is not aware of the name and the address of his second daughter – in-law, although second daughter-in –law living in his house with him. Thus, it is evident of O.P.W. 3 i.e. the father of the petitioner that the petitioner has even performed second marriage and the petitioner was working in Gujrat at the time of marriage and O.P.W. 3 has also concealed and supressed the fact and hence evidence of O.P. No.3 is not reliable. 24. O.P.W. 4 is Shazid Khan, who has stated that same fact stated by O.P.W. 2 and the O.P.W. 3 in their respective evidence and the same is not being repeated here. However during cross examination he admitted that the petitioner has performed second marriage and he i.e. the petitioner is living in his house at P.S. –Bishnugarh, Hazaribagh and therefore it is evident that O.P.W. 1, the O.P.W. 3 and the O.P.W. 4 have been set-up by the O.P. No. 2 i.e. the petitioner and the husband-petitioner denied maintenance amount to the O.P. W. 2 and O.P. W. 3. 25. Although, there is no specific proof of income of the O.P.- petitioner before the learned Court below and even proper cross examination has not been done but still the fact remains and -12- admitted by both the sides that the O.P.W. 2 and O.P.W. 3 are the wife and the son of the petitioner . 26. It has also come on record that the husband - petitioner has performed second marriage in the year 2019 and he is living with his second wife and one girl child and he is maintaining them. 27. It is well settled from a catena of decisions that it is bounden duty of the husband to maintain his wife and children and to save her from the destitution.
Decision
conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.” 37. However the learned Court below should have granted the maintenance amount to the wife and the child i.e. the O.P. No. 2 and O.P. No. 3 from the date of filing of the application under section 125 Cr.P.C. instead of date of the order . Hence the O.P. No. 2 and O.P. No. 3 will be entitled to maintenance amount of from the date of filing of application under section 125 Cr.P.C. 38. It has been held in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy reported in 2017 Vol (14) SCC 200 at paragraph 15, as follows :- “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In -18- February 2016, the net salary of the appellant is stated to be Rs 95.527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23.000 to Rs 20.000 per month as maintenance to the respondent wife and son. 39. It has been held in the case of Dr. Swapan Kumar Banerjee Vs. State of West Bengal and Another reported in 2020 (19) SCC 342, that even a wife who has been divorced on ground of desertion is entitled to claim the maintenance. 40. It has been held in 2020 (19) SCC 342 at para 5 and 7 which are as follows:- “Para 5:- Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11) 11. The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A -19- woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her." “Para 7:- No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex- husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee.” 41. It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99, at para 27 to 31, which are as follows :- “Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. -18- Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20. Para-30:- We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, which was a case under Section 125 Cr.P.C. A Muslim wife with her two daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision, which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court held that minor children were not entitled for maintenance under Section 125, Cr.P.C. A special leave to appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear -19- provisions of a statute. This Court held that there is no conflict between the two provisions. Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) “7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act.” 42. It has been held in the case of Sanjeev Kapoor Versus Chandana Kapoor and Ors. reported in 2020 (13) SCC 172 at paragraphs Nos. 23, 26 and 27 as follows:- “Para-23:- Before we proceed to look into the Legislative Scheme of Section 125 Cr.P.C., we need to notice few rules of interpretation of statutes when court is concerned with interpretation of a social justice -20- legislation. Section 125 Cr.P.C. is a social justice legislation which order for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced. This Court had occasion to consider the interpretation of Section 125 Cr.P.C. in Badshah versus Urmila Badshah Godse. In paragraphs 13.3 to 18, following has been laid down: (SCC pp. 196-98) “13.3. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society. ……………………………………………………………………… ……………………………………………………………………… “18. The court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonise results with justice through a method of free decision — libre recherché scientifique i.e. “free scientific research”. We are of the opinion that there is a non-rebuttable presumption that the legislature while making a provision like Section 125 Cr.P.C., to fulfil its constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano to Shabana Bano guaranteeing maintenance rights to Muslim women is a classical example. Para-26:- The above Legislative Scheme indicates that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is -21- expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions. Para-27:- Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125. The Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or final order disposing the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding under Section 125 Cr.P.C. as indicated above. 43. In view of the discussion made above and in view of the law laid down by the Hon’ble Supreme Court this Court finds that “Final Order” passed in Original Maintenance Case No. 105 of 2019 by the learned Principal Judge, Family Court, Hazaribagh is fit and proper no interference is required. 44. However, it will be open to the O.P.No. 2 to take necessary steps in accordance with law for recovery of her arrears of Maintenance amount as well as the current Maintenance amount on behalf of herself and for her minor son and the learned Court below is directed to take all necessary steps against the petitioner as such an application is filed by the O.P. No. 2 before the learned Court below. 45. Thus, this Criminal Revision No. 426 of 2022 is hereby dismissed with the modification on the part of payment of maintenance amount. Let a copy of this order be sent to the learned Court below for needful by “FAX”. Bibha/ (Sanjay Prasad, J.)