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2009 DIGILAW 390 (JK)

Mohd. Iqbal Shah v. Parveena

2009-08-13

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner is aggrieved of order dated 24th Nov. 2008 passed by Ld. Addl. Sessions Judge Srinagar in criminal revision titled Mst. Parveena and ors v. Mohammad Iqbal Shah. 2. The ld. Addl. Sessions Judge has set aside the order of the ld. Judicial Magistrate (City Munsiff) Srinagar who had rejected the application of the respondent seeking maintenance from the petitioner u/s 488 Cr.P.C. 3. The ld. Addl. Sessions Judge in terms of the impugned order has directed the petitioner to pay Rs.800/- per month as maintenance allowance in favour of the respondent No.1. 4. The petitioner and respondent No.1 married and out of the wedlock two children are born. They lived together for quite some time and thereafter separated from each other. The respondent No.1 filed application u/s 488 Cr.P.C against the petitioner in which she claimed maintenance for herself and for two minor children on the ground that petitioner had neglected/refused to maintain her and two minor children. 5. The petitioner filed objections to the said application in which he stated that he has been impressing upon respondent No.1 to resume the matrimonial relation. It was further stated in the objections that respondents 2 and 3 are living with petitioner and all expenses are being born by petitioner. The ld. Magistrate conducted enquiry in the matter. Respondent no.1 lead evidence in support of her claim. The respondent No.1 besides examining herself also examined Ab. Gani Darzi, and Imtiyaz Ahmed Darzi in support of her claim. 6. The petitioner on the other hand examined himself, as also Mohd Ashraf, Mushtaq Ahmad Parray, Ali Mohd and Alam Zaib to prove his claim put forth before the Ld. Magistrate. The Ld. Magistrate after considering the evidence and material available on record rejected the application of maintenance filed by respondent No.1 interalia on the grounds that the respondent No.1 had not come with clean hands to the Court as she filed maintenance petition on behalf of minor children, whereas the minor children are living with the petitioner (their father). Further that the respondent No.1 made false statement about the salary of the petitioner and the Ld. trial magistrate based his order on the findings which are reproduced as under: - "As such there is no material before this court which depict that the non-applicant ever maltreated and ill-treated and had ever came drunk and beaten the applicant No.1. Further that the respondent No.1 made false statement about the salary of the petitioner and the Ld. trial magistrate based his order on the findings which are reproduced as under: - "As such there is no material before this court which depict that the non-applicant ever maltreated and ill-treated and had ever came drunk and beaten the applicant No.1. Besides this the provision under section 488 Cr.P.C cannot be invoke in the circumstances where the wife alleged in petition that their husband are ill-treating them and not giving sufficient money for their maintenance. In such case wife should seek remedy by separating and then seeking maintenance or dissolution of marriage. Accordingly, on the basis of aforesaid analogy the petitioner/applicant failed to prove successfully this ingredient that she had been turned out of house by her husband and since then neglected to maintain her. This view is further fortified by case law." 7. Aggrieved of the said order, respondent No.1 filed revision petition which was allowed by the Ld. Addl. Sessions Judge and petitioner is directed to pay maintenance of Rs.800/- per month to respondent. Heard Ld. counsel for parties. Considered the matter. 8. Mr. Chesti, Ld. counsel for the petitioner argued the case at length. He was at pains to explain that the order of the Ld. Judicial Magistrate is legal and did not call for any interference and the order of the Ld. Addl. Sessions Judge is illegal and requires to be quashed. The Ld. counsel after reading the impugned judgment in its entirety, highlighted the following points in support of his contention that the order impugned in the petition is illegal, and deserves to be quashed, the Ld. counsel submits the maintenance application filed by respondent No.1 merits rejection as the respondent No.1 came to the court with unclean hands and gave wrong information to the court that minor children are living with her, when as a matter of fact the minor children were living with the father petitioner; secondly she made false statement about the salary of the petitioner and thirdly she refused to live with the petitioner. Ld. Counsel also referred to and relied upon judgment reported in 2008 (SLJ) 397 to support his contention that the order impugned in this petition merits to be quashed. 9. On the other hand the Ld. Ld. Counsel also referred to and relied upon judgment reported in 2008 (SLJ) 397 to support his contention that the order impugned in this petition merits to be quashed. 9. On the other hand the Ld. counsel for respondent No.1 submits that at the time of filing of the maintenance petition the minor children were in the custody of respondent No.1 but during pendency of that petition the minor children were forcibly taken away by the petitioner and for this reason the application was filed for seeking the deletion of minor children from the array of petitioners. The Ld. counsel while referring to the judgment of the Ld. trial Magistrate stated that though, respondent No.1 had offered to live with the petitioner, the Ld. Magistrate has not taken note of the same. The ld. counsel also submits that the order impugned in this petition is legal and valid and does not call for any interference. 10. The provisions of Section 488 Cr.P.C have been put on Statute book to ensure that wife and children when they claim that husband/father has neglected or failed to maintain them, then on an enquiry to be conducted by the Magistrate maintenance charges can be ordered to be paid. The provision appears to have been incorporated in the Criminal Procedure to ensure that wife/children who are entitled to claim maintenance are not subjected to starvation and the statutory duty is cast upon husband/father to pay maintenance in case it is found from the material that he has either neglected or refused to maintain the wife and children. 11. The evidence recorded by the Ld. trial Magistrate would show that respondent No.1 has specifically stated in her statement before the Court that though she has been forcibly thrown out of the matrimonial home but she is ready to live with the petitioner. Her witnesses Ab. Gani Darzi and Imtiyaz Ahmed Darzi in unequivocal terms stated that respondent No.1 off and on remains ill because of this reason she was thrown out of matrimonial house by the petitioner. In cross examination the said witnesses stated that the dispute between parties was resolved by Masjid Committee but the petitioner did not adhere to the compromise so arrived at. The petitioner has also appeared as his witness and besides four other persons have appeared as witnesses of the petitioner. In cross examination the said witnesses stated that the dispute between parties was resolved by Masjid Committee but the petitioner did not adhere to the compromise so arrived at. The petitioner has also appeared as his witness and besides four other persons have appeared as witnesses of the petitioner. In his statement the petitioner admitted that he is government employee and drawing Rs.5500/- as salary per month. He has further asserted in his statement that respondent No.1 left the house of the petitioner on her own free will, because of this he has not paid any maintenance to the respondent No.1. He has further stated that respondent No.1 is not ready to live with the petitioner. The other witnesses examined by petitioner have stated that the respondent No.1 was not thrown out by the petitioner from his matrimonial house. It has been further stated that the dispute between parties was resolved by Masjid Committee. These witnesses, however, have stated that they are not aware about the main cause of the dispute between the spouses. 12. After referring to the evidence the Ld. Judicial Magistrate recorded finding that there is no material before the court to show that respondent No.1 has been ill-treated by petitioner. The Ld. Judicial Magistrate has further recorded finding that maintenance petition u/s 488 Cr.P.C is not maintainable in these circumstances as when wife alleges that the husband is ill-treating her and is not providing her sufficient money for her maintenance, she may have some other remedy. 13. The Ld. Magistrate in his wisdom, thus, recorded a finding in such circumstances the wife should seek remedy by separating and then seeking maintenance or dissolution of marriage. It is on this finding recorded by Ld. Judicial Magistrate the petition of respondent No.1 was dismissed. 14. The finding recorded by Ld. Magistrate on the face of it is bereft of reason. The claim of ill treatment meted out by the husband to wife, is no ground in the law to direct wife to live separately and seek dissolution of marriage. 15. The finding of the Ld. Judicial magistrate that the wife should first separate then seek maintenance or dissolution of marriage cannot be said to be in consonance with the settled principles of law and to refuse maintenance u/s 488 Cr.P.C. The Ld. 15. The finding of the Ld. Judicial magistrate that the wife should first separate then seek maintenance or dissolution of marriage cannot be said to be in consonance with the settled principles of law and to refuse maintenance u/s 488 Cr.P.C. The Ld. Magistrate has even failed to take cognizance of the fact that the respondent No.1 in her statement had made an offer that she is ready to live with the petitioner. The Ld. Judicial Magistrate having not dealt with this offer made by respondent No.1, speaks volumes as to how casually the matter has been dealt with by the Ld. Judicial Magistrate. The Ld. Judicial Magistrate also has not recorded reasons as to how the evidence of respondent No.1 regarding the factum of throwing out of her from matrimonial house by petitioner is not acceptable to the court. The evidence has not been referred to, nor any reason has been recorded. This is not the case of misappreciation of evidence, this is the case of misreading of evidence/non consideration of evidence. The order passed by Ld. Judicial Magistrate in these circumstances cannot be sustained in law. 16. The Ld. Additional Sessions Judge in the impugned order has taken cognizance of these facts. The Ld. Additional Sessions Judge in the fact position obtaining in this case was duty bound to consider evidence. The Ld. Additional Sessions Judge while considering the evidence recorded reasons for allowing the revision petition. The reasons recorded by Ld. Addl. Sessions Judge are valid and legal. The order of Ld. Addl. Sessions Judge does not call for any interference. 17. It is argued by the Ld. counsel for the petitioner that the respondent No.1 has come with unclean hands to the court, but this cannot be a ground for rejecting the maintenance application, if otherwise it is proved that the claim of maintenance is bonafide and genuine. As already stated evidence lead by parties does show that petitioner has failed to maintain respondent No.1 and is thus liable to pay maintenance. The judgment of this court referred to (supra) by the Ld. counsel for the petitioner is distinguishable on facts for the reason that in the present case the respondent No.1 has taken specific stand before Ld. As already stated evidence lead by parties does show that petitioner has failed to maintain respondent No.1 and is thus liable to pay maintenance. The judgment of this court referred to (supra) by the Ld. counsel for the petitioner is distinguishable on facts for the reason that in the present case the respondent No.1 has taken specific stand before Ld. Judicial Magistrate that she is ready to live with the petitioner and in the case cited at bar it was the wife who refused to live with the husband without any just cause. In the said case the wife had made three contradictory statements at three different stages of the proceedings and this was other reason for which the maintenance application of the wife in that case was held to have been rightly rejected. It is settled law that judgment cannot constitute a precedent if there is differences in facts of the two cases. Facts in two cases are materially different, the said judgment cannot be precedent viz-a-viz the facts of this case. 18. For the above stated reasons, this petition is dismissed along with all connected CMPs.