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2005 DIGILAW 928 (BOM)

Syed Abdul Khader v. Akthari Sultana

2005-07-22

M.VENKATESWARA REDDY

body2005
JUDGMENT:- This criminal revision case by husband is directed against an order, dated 9-8-2001, made in M.C. No.139 of 2000, on the file of the Additional Metropolitan Sessions Judge for the Trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court, Hyderabad, allowing an application filed under Section 125 of the Criminal Procedure Code (for short "Cr.P.C.") and awarding maintenance of Rs.500/- per month to the petitioner therein (wife) against the respondent husband. 2. For convenience of reference, the revision petitioner and the respondent will be referred to as per their array before the lower Court, viz., wife as the petitioner the husband as the respondent. 3. The marriage of the petitioner and the respondent was solemnized on 24-6-2000. After consummation of the marriage, the petitioner joined the society of her husband and stayed with him till 15-11-2000. It was on 15-11-2000, as per the case of the petitioner, she was beaten and driven out of the house by the respondent and relatives making demand for an additional dowry of Rs.50,000/-. The respondent also does not dispute the date on which the petitioner left his society. A complaint was also lodged before the police in Crime No.318 of 2000 of P.S. Humayun Nagar against the husband and in-laws by the petitioner for the offences punishable under Sections 498A of the Indian Penal Code, Sections 4 and 6 of the Dowry Prohibition Act, 1961 and the said case is still pending for disposal in the Court of the III-Additional Chief Metropolitan Magistrate, Hyderabad. Thus, the petitioner's case is that she was harrased for dowry and was driven out of the house on 15-11-2000 by her husband and the latter neglected and refused to maintain her. 4. The case of the respondent is that soon after setting up of the family, the petitioner demanded him to set up a separate family and he did not accede to her request and that was the cause of the trouble and she left the house on her own. 5. Admittedly, the respondent has four brothers and three sisters. Two sisters and four brothers are residing with him. The petitioner and the respondent used to live in a separate room in the same building. The cooking is common to all. P.W.2, the father of the petitioner, is running a public telephone booth. He has two more daughters besides the petitioner (P.W.1). Those two daughters are unmarried. Two sisters and four brothers are residing with him. The petitioner and the respondent used to live in a separate room in the same building. The cooking is common to all. P.W.2, the father of the petitioner, is running a public telephone booth. He has two more daughters besides the petitioner (P.W.1). Those two daughters are unmarried. Both the petitioner and the respondent hail from Hyderabad city only and the respondent is working as an Attender in the High Court of Andhra Pradesh getting a salary of Rs.3,000/-. It is as against the above background, I have to come to a decision in this case. 6. I would consider two points in the revision namely; (1) Whether the respondent neglected and refused to maintain the petitioner? And (2) Whether the petitioner is entitled to insist her husband, the respondent, to set up a separate family? 7. Point No.1: The evidence adduced on behalf of both the sides is interesting. On behalf of the petitioner, there is her own testimony as P.W.1 and the evidence of her father as P.W.2, while on behalf of the respondent it is his own testimony. Thus, the evidence adduced on behalf of both sides is self-serving and it is oath against oath. Each has stuck to their own version. P.Ws.1 and 2 say that the petitioner was driven out of the house while the respondent maintains that the petitioner on her own left the house. Therefore, in the circumstances, the conduct of the parties and weight of preponderance of probabilities gain relevance. The respondent has three sisters and four brothers living with him. Therefore, there was no urgent need for him to have a female in his house to attend to cooking etc. The petitioner left the house on 15-11-2000. Though the petitioner examined her father, the respondent has not examined any of the inmates of his house either any sister or brother to corroborate his testimony that the petitioner left the house on her own. The grievance of the respondent is that the petitioner demanded him to set up a separate family, which I am considering separately. He has not examined any neighbour also. It may be difficult for the petitioner to get a neighbour of the respondent as a witness, but it is not so in the case of the respondent. The grievance of the respondent is that the petitioner demanded him to set up a separate family, which I am considering separately. He has not examined any neighbour also. It may be difficult for the petitioner to get a neighbour of the respondent as a witness, but it is not so in the case of the respondent. Though he has been working as Attender in the High Court of Andhra Pradesh and a man of some exposure towards men matters and law and in fact in a position to give legal advise, he has not thought it fit to issue any notice to his wife asking her to join him. In those circumstances, ipsi dixit of the respondent cannot be taken for granted. Therefore, I feel that the lower Court was right in believing the evidence of P.Ws.1 and 2. In fact, the petitioner was forced to file a dowry harassment case even against the respondent. P.W.2 has two more unmarried daughters besides the petitioner. Being a person eking out his livelihood by running a telephone booth, he can ill-afford to maintain a married daughter. Keeping a married daughter in his house and filing criminal cases against the son-in-law would have a devastating effect on the prospects of the marriage of the other two t daughters. Therefore, the circumstances of the I case, the weight of preponderance of the 1 probabilities make the Court believe the version put forward by P.Ws.1 and 2 and the lower Court is right in believing the respondent's evidence. Thus, on the first point I hold that the respondent has neglected and refused to maintain the petitioner. 8. Point No.2: The fact that the respondent is living with his four brothers and two sisters cannot go unnoticed. Going by the present standards of the society and mindset of the present generation, whether the demand for setting up of separate family can be said to be unreasonable? My conclusion on point No.1 demonstrates that the petitioner was not leading peaceful life in the family of the respondent consisting of himself, (the respondent) two sisters and four brothers. The petitioner was subjected to ill-treatment. It is difficult for two minds to come together now-a-days and it will be futile to expect as many as eight minds to pull together. The brothers and sisters would have possessive instinct on respondent. P.W.1 is a stranger to the family. The petitioner was subjected to ill-treatment. It is difficult for two minds to come together now-a-days and it will be futile to expect as many as eight minds to pull together. The brothers and sisters would have possessive instinct on respondent. P.W.1 is a stranger to the family. Therefore, there are bound to be bickerings. Is not P.W.1 justified in those circumstances to ask for setting up for a separate family? Even otherwise, times have changed. Days are gone when it was said 'East is East and West is West and they would never unite'. There is explosion in information technology. The world has shrunken into a global village. The mind set of youth has undergone a radical change. Women are also in the forefront in all fields of life. There is a demand from all corners for gender justice. In its gradual evolution the society has drifted to a stage where the economic empowerment of the women is felt a must. Change is the essence of an evolving society. Old changeth yielding place to new. Courts cannot turn a blind-eye to the societal changes and afford to be oblivious of the hard realities of life. Therefore, it is far-fetched to say that P.W.1 insisting on putting up a separate family is not a justifiable ground. In fact, the Madras High Court also had an occasion to deal with a similar situation. In Narkarunai Flora Sahayarani Vs. M. Uthirayasami, 1997(2) ALT (Cri.) 223 (Mad.), who is relying upon an earlier decision of the said Court rendered in M. Ponnambalam Vs. Saraswathi, which was rendered as long back as in the year 1957, it was held that the wife cannot be found fault with for demanding the husband to set up a separate family. For profit of appreciation, I shall extract the relevant portion hereunder: “5. Learned Counsel for the petitioner cited a decision of this Court in Juliet Vasantha Vs. Saraswathi, which was rendered as long back as in the year 1957, it was held that the wife cannot be found fault with for demanding the husband to set up a separate family. For profit of appreciation, I shall extract the relevant portion hereunder: “5. Learned Counsel for the petitioner cited a decision of this Court in Juliet Vasantha Vs. Antony Marimuthu, 1985 LW (Cri.) 107, wherein it has been held as follows: “The case of the revision petitioner is that the stand taken by the appellate Court was wrong and that a wife cannot be refused maintenance for the mere reason that she refused to live in a place where it was impossible for her to lead a normal and peaceful life." In support of his above contention, learned Counsel for the revision petitioner produced a decision of this Court in M. Ponnambalam Vs. V. Saraswathi. In that decision it was observed as follows: “It is now settled law in England, America and India, that a wife is entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy at times the husband may have to choose between his parents, mother or his wife. He must come to his own conclusion in his own mind and must not insist upon the incompatible parties like his own wife and mother living together and making life a hell for them, it cannot be said that the wife had disentitled herself to separate maintenance by saying that she would live only with the husband and not with the step-mother added to the bargain. But times have changed. Hardships which wives were prepared to endure in the past they are not prepared to endure now and the Court cannot impose upon them ante-diluvian requirements of domestic, Hindu households at the present times”. The decision was rendered in the year 1957 and from then the evolution has been more and more towards strengthening the right of the wife seeking from her husband a residence of her own separate from that of in-laws." 9. Society has undergone a total metamorphosis since 1957. The decision was rendered in the year 1957 and from then the evolution has been more and more towards strengthening the right of the wife seeking from her husband a residence of her own separate from that of in-laws." 9. Society has undergone a total metamorphosis since 1957. The need for recognition, clamour and right of a wife for claiming separate residence, that too when she is not treated well by the in-laws has become more imperative and imminent now. The joint family has almost become extinct. The assertion of the individuality has made deep roots into the family life. Marital life is demanding privacy and comforts. P.W.1 is a city-bred girl, not hailing from pastoral regions of the State. Thus, the inevitable conclusion that emerges from my aforesaid discussion is that the wife is entitled to demand her husband to set up a separate family to have privacy and marital comfort. 10. In view of the aforesaid reasoning, I do not find any merit in this revision case. The criminal revision case is accordingly dismissed. Revision dismissed.