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2004 DIGILAW 955 (JHR)

Saheen Saba Banoo v. Md. Manzoor Alam

2004-09-17

M.Y.EQBAL, VISHNUDEO NARAYAN

body2004
ORDER 1. Both First Appeal No. 88 of 2000 and Criminal Revision No. 39 of 2000 have been filed by the wife Saheen Saba Bano against the judgment and decree dated 14.12.1999 passed by the Principal Judge, Family Court, Dhanbad whereby the Court bffelow has decreed the suit filed by the plaintiff-respondent for restitution of conjugal right Under Section 281 of the Mohammadan Law and dismissed the criminal case filed by the wife Under Section 125, Cr PC for maintenance. Since both the eases arise out of the common judgment, they have been heard together and will be governed by this common judgment. 2. The facts of case lie in a narrow compass : The appellant was married with respondent Md. Manzoor Alam on 22.3.1994 and out of the wedlock one son and one daughter were born. The plaintiffs respondentss case was that after solemnization of marriage to appellant went to the matrimonial house and both of them started living marital conjugal life. In the year 1999 the appellant, alleged to have returned to her parents house for the reason, inter alia that the respondent started behaving with her in a cruel manner and used to assault her. It was alleged that some dowry was also demanded. 3. On the other hand, the appellant wife filed a complaint case Under Section 498A IPC. Because of the complaint case the relationship became very tense which led to filing of suit for restitution by the respondent-husband which has been decreed by the Principal Judge, Dhanbad, as aforesaid, after recording a finding that the wife-appellant, without any reasonable excuse left the house of the husband. 4. Aggrieved by the said judgment and decree dated 14.12.1999 the appellant- wife has preferred this appeal-against the decree of restitution and also a criminal revision against the order of refusal for payment of maintenance. During pendency of these two cases several attempts were made for reconciliation of the matter but all went in vain. The respondent-husband, in the meantime, married second wife and is living with her. Before these cases were taken-up for hearing, this Court made attempt by order dated 3.9.2004 for conciliation between the parties but the respondent- husband has now refused to take her back and ahead a conjugal life with her. The appellant-wife is also not agreeable to live with the respondent-husband for the reason that the respondent has already married second wife. Before these cases were taken-up for hearing, this Court made attempt by order dated 3.9.2004 for conciliation between the parties but the respondent- husband has now refused to take her back and ahead a conjugal life with her. The appellant-wife is also not agreeable to live with the respondent-husband for the reason that the respondent has already married second wife. She has also refused to live with the respondent even in another room along with the second wife of the respondent. 5. In view of the subsequent development particularly the fact that the respondent has married another lady and has expressed his unwillingness to live with the appellant and the appellant on the other hand also, for the reasons mentioned herein above has refused to live with the respondent, in such a situation the decree for restitution of conjugal right which is the subject matter of the first, appeal, has become infructuous. We have, therefore, no option but to dispose of the appeal by issuing appropriate direction to the respondent for payment of maintenance to the appellant. 6. The Court below disallowed maintenance to the appellant on the ground that, the appellant, without any reasonable excuse, refused to live with the respondent and left her matrimonial house. 7. Taking into consideration the denial of the respondent, who is present in Court, to keep the appellant with him and also the denial of the appellant to live with the respondent-in the same house along with the second wife and also keeping in view the provisions of the explanation of Sub-section (3) of Section 125 Code of Criminal Procedure denial of the appellant to live with the respondent is a reasonable and justified ground since the respondent-husband has already performed marriage with another woman. We, therefore, allow Criminal Revision No. 39/2000 and direct the respondent-husband to pay a total sum of Rs. 1500/- by way of maintenance per month. Out of the aforesaid amount Rs. 500/- each shall be the maintenance of the children and rest amount of Rs. 500/- shall be by way of maintenance to the wife appellant. The daughter of the appellant shall be entitled to maintenance till her marriage and the son till he attains his majority. 8. 1500/- by way of maintenance per month. Out of the aforesaid amount Rs. 500/- each shall be the maintenance of the children and rest amount of Rs. 500/- shall be by way of maintenance to the wife appellant. The daughter of the appellant shall be entitled to maintenance till her marriage and the son till he attains his majority. 8. Since the appellant and the respondent have decided to love separately, it is desirable that both the parties should come to compromising terms in all the criminal cases pending between them in the Courts below. The amount of maintenance, as indicated above, shall be paid by the respondent to the appellant on the 17th day of the every following calendar month by Money Order at the cost of the respondent himself. 9. Accordingly First Appeal No. 88/2000 is allowed and the judgment and decree of restitution of conjugal right is set aside. Consequently, Matrimonial Suit No. 148/99 is dismissed.