High Court

1. Instant criminal revision has been preferred against the impugned judgement and order dated 10.1.2024 passed by learned Principal Judge, Family Court, Rampur in Criminal Case no. 208 of 2022 under section 125 Cr.P.C. whereby learned court below has awarded maintenance to the respondent/applicant Smt. Shaziya Bee and her minor son Mohd. Shazan at the rate of Rs. 10,000/- per month and Rs. 5000/- per month respectively which is payable from the date of filing of application dated 7.5.2022.

2. Heard learned counsel for the revisionist, learned counsel for the respondent no. 2, learned AGA for the State and perused the record.

3. Learned counsel for the revisionist submitted that this is admitted fact that the marriage of revisionist was solemnized with respondent no. 2 on 27.12.2020 according to Muslim rites and rituals as both parties belong to Muslim community. The respondent no. 2 came to her matrimonial home after marriage, however some matrimonial discord took place between the spouse mainly for reason that respondent no. 2 used to chat with two boys of her locality on whatsapp by her mobile phone and when revisionist objected to this, she took strong exception to this, she was also not ready to live with mother of the revisionist who was residing with him from very beginning. She was insisting on to live in a separate house in Delhi where she could live with the revisionist but this was not possible for him as he cannot leave his ill mother in unattended position. She wants to live in free atmosphere without any family restraints.

4. It is further submitted that this is admitted fact that the revisionist's monthly income of Rs. 63000/- per month but out of that he has to bear a substantial amount towards treatment of his mother, house rent and house hold expenditure as well as caste of litigation which is running between the parties. The revisionist has filed a suit for reconciliation of conjugal right under Islamic law before competent court but even that respondent no. 2 is not ready to live with him. She has also kept minor son of the revisionist with her forcefully.

5. He also submitted that revisionist has filed whatsapp chat of his wife with some other persons and he filed some screenshot of whatsapp chat in his evidence before the learned trial court. Respondent no. 2 has wrongly stated in her statement that she does not use mobile and she has not been engaged in whatsapp chat with any other person. He lastly submitted that the claim of maintenance made by respondent no. 2 is barred under section 125(4) Cr.P.C. which provides as under:- "(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

6. In present case also, the respondent no. 2 is living separately from revisionist without any sufficient cause and with her own willingness. Revisionist is still ready to keep her with him along with his minor son but she insisted to live separately from him and for that revisionist is not entitled to give her maintenance.

7. Per contra, learned counsel for the respondent no. 2 submitted that during the pendency of the present maintenance case, learned Magistrate has awarded Rs. 4000/- per month as maintenance under section 12 Domestic Violence Act but revisionist has not complied with the order passed by learned Magistrate also. He further submitted revisionist has not paid entire amount of maintenance awarded in impugned order and has paid only Rs. 95000/- as maintenance to the respondent no. 2.

8. It is further submitted that the revisionist is paying Rs. 20,000/- per month from his salary account: Rs.15000/- towards regular maintenance and Rs. 5000/- towards arrears. The learned trial court has awarded amount of maintenance to the respondent no. 2 on determination of monthly income of revisionist Rs. 70,000/- per month.

9. The facts of the case in brief are that applicants Shaziya Bee and Mohammad Shazan, the minor son of applicant no. 1 and opposite party Siraj Ahmad filed an application under section 125 Cr.P.C. before Principal Judge before Family Court, Rampur with averment that marriage of applicant no. 1 was solemnized with opposite party Siraj Ahmad on 27.12.2020. Her father had given sufficient gifts and dowry in the marriage and spent around Rs. 10 lakhs. Applicant no. 1 was sent off to the place of her in-laws after marriage where she came to know that her husband and in-laws were greedy people. They started demand Rs. 5 lakhs in cash and four wheeler from her, they used to taunt and tease her for bringing lesser dowry. Her Dever (brother-in-law) having evil eye on her and on 13.4.2022 at around 4 P.M. on finding her alone in the house, did obscene act with her. She told this incident to her husband but instead taking heed to her complaint, he abused her and she was eventually turned out from matrimonial home, due to non fulfillment of additional dowry. She came to her parental house anyhow along with her minor son Shazan.

10. Opposite party is B.Sc. passed out. He is skilled in computer operator and from which he earns around Rs. 50,000/- per month. He also runs a shop of mobile from where he earns Rs. 50,000/- per month. He also deals in hardware and building materials. His earning from all sources is around Rs. 2 lakhs per month. She claimed 50,000/- per month each for maintenance of herself and her minor son.

11. Opposite party had filed a suit for Rukhsati (Vidai) against applicant Shaziya Bee, his wife on 30.5.2022 which is after filing present case under section 125 Cr.P.C. wherein she has stated Rs. 11,786/- was settled as Mehar at the time of marriage between the parties. His wife is a fashionable lady. She was a pampered child at her parental place. She would speak to strangers on phone several times and when opposite party and his family members started objecting to this, she became furious and abusive. Her behavior towards opposite party and his family members turned cruel during course of time. She engaged in regular chatting with her cousin Shahrukh and Javed in intimate manner. Couple were blessed with a son Shazan on 13.11.2021 at Anmole Hospital Kashipur District Udhamsingh Nagar, Uttarakhand. The father and brother of Shaziya Bee visited the place of applicant on 13.4.2022 and took her along with her child with them without knowledge of the applicant. They also took away ornaments and valuable things kept in the house. His wife is not ready to come back with him despite several efforts.

12. Applicant Shaziya Bee in her evidence has supported in her pleading made in application for maintenance and stated that she was turned out of her husband and in-laws due to non-fulfillment of demand of dowry and she has to took shelter at her parental place. She is six sibling in toto. She has completed intermediate in the year 2016. Her father bears expenses of witness and her minor son. Her husband has not taken care of her after departure from the place of her husband. Her son is symbol of lovely relations of the parties. She has problem with family members of her husband. She can reside with her husband separately. Her mother-in-law remain sick. She does not operate mobile. She does not use whatsapp. She is not having mobile phone. She will ready to live with her husband if he keeps her separately from her family.

13. D.W. 1 Siraj Ahmad has stated in her statement that he does not turned out his wife from his home. He earns Rs. 25,000/- per month at the time of marriage and he always take care of her necessary things after marriage. Applicant was never tortured or harassed by him or his family members. He works in a company in Delhi but he can not divulge its details. He never tried to enter into compromise with his wife. He never went to place of his in- laws to meet his son.

14. Learned court below has given a finding in impugned judgement that the applicant Shaziya Bee is legally wedded wife of opposite party Siraj Ahmad and Mohd Shazain who was born out of their wedlock is his son. Applicant is not having any income to maintain herself and her minor son. The opposite party possess of sufficient means to maintain him.

15. Learned court below has addressed the issued no. 5 in detail which is " whether applicant has refused to live with opposite party without sufficient cause." Learned court below has observed that the opposite party has stated in his written statement that he is inclined to keep his wife and son together with him and he has filed a suit for restitution of conjugal rites under Muslim rites in family court Moradabad. The applicant has stated in her evidence that she is ready to live with her husband if he lives separately from her family with her. She has problem with his family, therefore, she has not refused to live with opposite party. He has not stated in his pleadings that he tried to bring back his wife and son after their separation from him. Only in view of a facts that he has filed a suit for restitution of conjugal rites, it cannot be inferred on the fact of the case that he is really and willing to keep his wife with him.

16. With above discussion , the learned court below has given a finding that opposite party could not prove this fact that applicant has refused to live with opposite party without sufficient cause.

17. The above finding of the fact made by learned court below is not liable to be disturbed in present revision without cogent reasons and contradictory evidence.

18. Consequently, I find no illegality, irregularity or perversity in the impugned order passed by the learned court below. The learned court below has clarified in the impugned order that any amount obtained by the revisionist as interim maintenance or proceedings under Domestic Violence Act, will be liable to adjustment towards amount payable to the applicants pursuant to this judgement. The revision is devoid of merit and deserves to be dismissed.

19. The revision is dismissed accordingly. Order Date :- 10.1.2025/SY

1. Instant criminal revision has been preferred against the impugned judgement and order dated 10.1.2024 passed by learned Principal Judge, Family Court, Rampur in Criminal Case no. 208 of 2022 under section 125 Cr.P.C. whereby learned court below has awarded maintenance to the respondent/applicant Smt. Shaziya Bee and her minor son Mohd. Shazan at the rate of Rs. 10,000/- per month and Rs. 5000/- per month respectively which is payable from the date of filing of application dated 7.5.2022.

2. Heard learned counsel for the revisionist, learned counsel for the respondent no. 2, learned AGA for the State and perused the record.

3. Learned counsel for the revisionist submitted that this is admitted fact that the marriage of revisionist was solemnized with respondent no. 2 on 27.12.2020 according to Muslim rites and rituals as both parties belong to Muslim community. The respondent no. 2 came to her matrimonial home after marriage, however some matrimonial discord took place between the spouse mainly for reason that respondent no. 2 used to chat with two boys of her locality on whatsapp by her mobile phone and when revisionist objected to this, she took strong exception to this, she was also not ready to live with mother of the revisionist who was residing with him from very beginning. She was insisting on to live in a separate house in Delhi where she could live with the revisionist but this was not possible for him as he cannot leave his ill mother in unattended position. She wants to live in free atmosphere without any family restraints.

4. It is further submitted that this is admitted fact that the revisionist's monthly income of Rs. 63000/- per month but out of that he has to bear a substantial amount towards treatment of his mother, house rent and house hold expenditure as well as caste of litigation which is running between the parties. The revisionist has filed a suit for reconciliation of conjugal right under Islamic law before competent court but even that respondent no. 2 is not ready to live with him. She has also kept minor son of the revisionist with her forcefully.

5. He also submitted that revisionist has filed whatsapp chat of his wife with some other persons and he filed some screenshot of whatsapp chat in his evidence before the learned trial court. Respondent no. 2 has wrongly stated in her statement that she does not use mobile and she has not been engaged in whatsapp chat with any other person. He lastly submitted that the claim of maintenance made by respondent no. 2 is barred under section 125(4) Cr.P.C. which provides as under:- "(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

6. In present case also, the respondent no. 2 is living separately from revisionist without any sufficient cause and with her own willingness. Revisionist is still ready to keep her with him along with his minor son but she insisted to live separately from him and for that revisionist is not entitled to give her maintenance.

7. Per contra, learned counsel for the respondent no. 2 submitted that during the pendency of the present maintenance case, learned Magistrate has awarded Rs. 4000/- per month as maintenance under section 12 Domestic Violence Act but revisionist has not complied with the order passed by learned Magistrate also. He further submitted revisionist has not paid entire amount of maintenance awarded in impugned order and has paid only Rs. 95000/- as maintenance to the respondent no. 2.

8. It is further submitted that the revisionist is paying Rs. 20,000/- per month from his salary account: Rs.15000/- towards regular maintenance and Rs. 5000/- towards arrears. The learned trial court has awarded amount of maintenance to the respondent no. 2 on determination of monthly income of revisionist Rs. 70,000/- per month.

9. The facts of the case in brief are that applicants Shaziya Bee and Mohammad Shazan, the minor son of applicant no. 1 and opposite party Siraj Ahmad filed an application under section 125 Cr.P.C. before Principal Judge before Family Court, Rampur with averment that marriage of applicant no. 1 was solemnized with opposite party Siraj Ahmad on 27.12.2020. Her father had given sufficient gifts and dowry in the marriage and spent around Rs. 10 lakhs. Applicant no. 1 was sent off to the place of her in-laws after marriage where she came to know that her husband and in-laws were greedy people. They started demand Rs. 5 lakhs in cash and four wheeler from her, they used to taunt and tease her for bringing lesser dowry. Her Dever (brother-in-law) having evil eye on her and on 13.4.2022 at around 4 P.M. on finding her alone in the house, did obscene act with her. She told this incident to her husband but instead taking heed to her complaint, he abused her and she was eventually turned out from matrimonial home, due to non fulfillment of additional dowry. She came to her parental house anyhow along with her minor son Shazan.

10. Opposite party is B.Sc. passed out. He is skilled in computer operator and from which he earns around Rs. 50,000/- per month. He also runs a shop of mobile from where he earns Rs. 50,000/- per month. He also deals in hardware and building materials. His earning from all sources is around Rs. 2 lakhs per month. She claimed 50,000/- per month each for maintenance of herself and her minor son.

11. Opposite party had filed a suit for Rukhsati (Vidai) against applicant Shaziya Bee, his wife on 30.5.2022 which is after filing present case under section 125 Cr.P.C. wherein she has stated Rs. 11,786/- was settled as Mehar at the time of marriage between the parties. His wife is a fashionable lady. She was a pampered child at her parental place. She would speak to strangers on phone several times and when opposite party and his family members started objecting to this, she became furious and abusive. Her behavior towards opposite party and his family members turned cruel during course of time. She engaged in regular chatting with her cousin Shahrukh and Javed in intimate manner. Couple were blessed with a son Shazan on 13.11.2021 at Anmole Hospital Kashipur District Udhamsingh Nagar, Uttarakhand. The father and brother of Shaziya Bee visited the place of applicant on 13.4.2022 and took her along with her child with them without knowledge of the applicant. They also took away ornaments and valuable things kept in the house. His wife is not ready to come back with him despite several efforts.

12. Applicant Shaziya Bee in her evidence has supported in her pleading made in application for maintenance and stated that she was turned out of her husband and in-laws due to non-fulfillment of demand of dowry and she has to took shelter at her parental place. She is six sibling in toto. She has completed intermediate in the year 2016. Her father bears expenses of witness and her minor son. Her husband has not taken care of her after departure from the place of her husband. Her son is symbol of lovely relations of the parties. She has problem with family members of her husband. She can reside with her husband separately. Her mother-in-law remain sick. She does not operate mobile. She does not use whatsapp. She is not having mobile phone. She will ready to live with her husband if he keeps her separately from her family.

13. D.W. 1 Siraj Ahmad has stated in her statement that he does not turned out his wife from his home. He earns Rs. 25,000/- per month at the time of marriage and he always take care of her necessary things after marriage. Applicant was never tortured or harassed by him or his family members. He works in a company in Delhi but he can not divulge its details. He never tried to enter into compromise with his wife. He never went to place of his in- laws to meet his son.

14. Learned court below has given a finding in impugned judgement that the applicant Shaziya Bee is legally wedded wife of opposite party Siraj Ahmad and Mohd Shazain who was born out of their wedlock is his son. Applicant is not having any income to maintain herself and her minor son. The opposite party possess of sufficient means to maintain him.

15. Learned court below has addressed the issued no. 5 in detail which is " whether applicant has refused to live with opposite party without sufficient cause." Learned court below has observed that the opposite party has stated in his written statement that he is inclined to keep his wife and son together with him and he has filed a suit for restitution of conjugal rites under Muslim rites in family court Moradabad. The applicant has stated in her evidence that she is ready to live with her husband if he lives separately from her family with her. She has problem with his family, therefore, she has not refused to live with opposite party. He has not stated in his pleadings that he tried to bring back his wife and son after their separation from him. Only in view of a facts that he has filed a suit for restitution of conjugal rites, it cannot be inferred on the fact of the case that he is really and willing to keep his wife with him.

16. With above discussion , the learned court below has given a finding that opposite party could not prove this fact that applicant has refused to live with opposite party without sufficient cause.

17. The above finding of the fact made by learned court below is not liable to be disturbed in present revision without cogent reasons and contradictory evidence.

18. Consequently, I find no illegality, irregularity or perversity in the impugned order passed by the learned court below. The learned court below has clarified in the impugned order that any amount obtained by the revisionist as interim maintenance or proceedings under Domestic Violence Act, will be liable to adjustment towards amount payable to the applicants pursuant to this judgement. The revision is devoid of merit and deserves to be dismissed.

19. The revision is dismissed accordingly. Order Date :- 10.1.2025/SY