Md. Ajffar Hussain @ Ajaffar Shekh v. State Of Bihar
2007-01-29
GHANSHYAM PRASAD
body2007
DigiLaw.ai
Judgment Ghanshyam Prasad, J. 1. Heard. 2. This revision has been preferred against the order/judgment dated 6.10.2005 passed by Principal Judge/Family Court, Sasaram in Maintenance Case No. 20 of 2001 filed u/s. 125 Cr.P.C. thereby and thereunder the learned Principal Judge has directed the petitioner to pay Rs. 2,000.00 per month to the opposite parties as maintenance. 3. The opposite party No. 2, Salma Bibi is wife of petitioner and opposite party Nos. 3 to 5 are their minor children. The opposite parties filed the above mentioned maintenance case against the petitioner on the ground of neglect and ill treatment and claimed maintenance of Rs. 2,000.00 per month. The petitioner contested the case and raised several grounds including divorce and also his incapacity to pay maintenance as claimed by opposite parties. However, ultimately, the learned lower court allowed the case and awarded maintenance of Rs. 2,000.00 per month to the opposite parties. 4. The submission of the learned Counsel for the petitioner is that the petitioner has already divorced the opposite party No. 2 much before filing of the case and, therefore, he is not liable to pay maintenance to the opposite parties beyond the Iddat period. Now she can claim maintenance only under Sec. 4 of the Muslims Women (Protection of Rights on Divorce)Act, 1986 and not u/s. 125 of the Cr.P.C. The second submission is that the quantum of maintenance is in much excess of the capacity of the petitioner. 5. So far plea of divorce is concerned, the court below after consideration of the oral evidence adduced on behalf of both the parties as well as law as decisions applicable thereto, particularly 2002 Supreme Court 3551 (Shamim Ara v. State of U.P.), dis-believed the same and held that opposite party No. 2 was never validly and legally divorced by the petitioner. The learned Counsel for the petitioner in course of submission has failed to show any illegality in the above findings of the court below. He has rightly held that the talaq must be held for reasonable cause and must be preceeded by an attempt of re-conciliation between the couple. Mere bald statement of talaq un-accompanied by cogent reason and other legal details is not acceptable in the eve of law. 6. The marriage under Mohammadan law is not sacrament.
He has rightly held that the talaq must be held for reasonable cause and must be preceeded by an attempt of re-conciliation between the couple. Mere bald statement of talaq un-accompanied by cogent reason and other legal details is not acceptable in the eve of law. 6. The marriage under Mohammadan law is not sacrament. It is pure and simple contract for certain purposes and object and hence it attracts all the incidents of a civil contract as stipulated in the Contract Act. Therefore. unilateral repudation of marriage should also conform the basic requirements of provisions of Contract Act apart from Mohammadan Law. Therefore, taking into account of all the facts and circumstances as well as the findings of the court below, I am not inclined to interfere in the above findings of the learned court below. 7. So far other submission is concerned, the same has also got no merit. By any standard the amount of Rs. 2,000.00 is not excessive rather it is in sufficient to maintain opposite parties who are four in number. While determining the quantum of maintenance amount the court has to take into account of all relevant factors including needs of wife and children for moderate living, earnings of the husband and also his capacity to earn. Considering all the factos, I am of the opinion that the amount of maintenance awarded by the court below is just and legal. 8. Thus, having regard to the facts and circumstances of the case, this revision application is dismissed an admission stage.