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2010 DIGILAW 762 (JHR)

Md. Tohid Alam @ Tohid Alam v. State of Jharkhand

2010-07-29

JAYA ROY

body2010
Order Jaya Roy, J.-Heard the learned counsel for the petitioner and the learned counsel for the opposite party. 2. The petitioner has filed the instant revision application against the order dated 24.2.2010 passed by Sri Harikesh Chand, the Principal Judge, Family Court, Palamau in Misc. Case No. 76 of 2007 whereby the petitioner is directed to pay a sum of Rs.1,500/- as maintenance allowance to the opposite party no. 2 Monima Khatoon from the date of filing of the case i.e. 30.7.2007. He is further directed to pay the said maintenance allowance on or before 10th of every succeeding month. The arrears of the maintenance allowance shall be paid by the Opp. Party No. 2 to the petitioner in six equal installments, within a period of six months from the date of this order. 3. The facts, in brief, is that the applicant opposite party who is the wife of the petitioner filed an application before the Principal Judge, Family Court, Palamau at Daltonganj under Section 125 Cr.P.C. against her husband for grant of maintenance which was registered as Misc. Case No. 76 of 2007. The case of the applicant opposite party that she was married with the present petitioner on 5th May, 2002 according to Muslim religion, rites and customs and after marriage, she went to her Sasural where she started her conjugal life peacefully. But after six months of their marriage, her husband (the petitioner) alongwith his family members started demanding dowry, a cash of Rs. one lakh and Hero Honda Motorcycle. As the demand was not fulfilled, they started torturing the applicant opposite party and ultimately, drove her from their house. Her further case is that she is living in her mother's house for the last few years and she has no source of income. Her husband though claimed to be divorced her but no Talak was given to her in her presence. Her further case is that Panchayaty was also held in this regard but the petitioner did not care to follow the decision of the Panchayat. Her husband is Raj Mistry and he earns Rs.1015 thousand per month. Moreover, he has got landed property from which he also earns Rs. one lakh per annum. 4. Her further case is that Panchayaty was also held in this regard but the petitioner did not care to follow the decision of the Panchayat. Her husband is Raj Mistry and he earns Rs.1015 thousand per month. Moreover, he has got landed property from which he also earns Rs. one lakh per annum. 4. Counsel for the petitioner submits that after received the notice the petitioner-opposite party appeared and tiled his show-cause stating therein that the application opposite party has herself left the house of the petitioner and has broken all relationship with him and for this reason the petitioner has given her "Talak". In these circumstances the petitioner is only liable to pay "Den Mohar" and to provide maintenance amount only up to the period of iddat. He is not under any obligation to provide maintenance beyond the period of iddat to his divorced wife, even if she is unable to maintain herself. 5. It is further contended by the counsel of the petitioner that the petitioner is Daily Wages labourer and earns Rs.1,0001- per month. He has no landed property or any other source of income. He is living with his old parents whom he has to maintain. Therefore, in these circumstances, he is not in a position to pay a separate maintenance allowance to the opposite party no. 2. 6. From the impugned order, I find that the petitioner has not disputed his marriage with the application opposite party no. 2. She has examined altogether four witnesses on her behalf including herself to prove the case. All of them has stated that after the marriage, the petitioner/opposite party started demanding 'cash amount and when his demand was not fulfilled, he started torturing to the applicant and ultimately drove her out from his house. A Panchayaty was held in this regard but the petitioner-opposite party did not obey the verdict of the Panchayat. It is further stated that the petitioner has also been corwicted under Section 498A I.P.C. Regarding his income, the applicant opposite party has stated that the petitioner is Raj Mistry and he earns RS.1015 thousand per month. Furthermore, he has got landed property for about six big has of land and from the said land he earns Rs.1,00,000/- (one lacs) per annum. She has denied that her husband has given her any Talak in her presence. Practically, she has proved her case without any doubt. Furthermore, he has got landed property for about six big has of land and from the said land he earns Rs.1,00,000/- (one lacs) per annum. She has denied that her husband has given her any Talak in her presence. Practically, she has proved her case without any doubt. 7. The petitioner opposite party has also examined three witnesses on his behalf including him. Both the witnesses O.P.W. 1 and O.P.W. 2 have admitted that the petitioner has found guilty under Section 498A I.P.C. O.P.W. 2 in his cross-examination has also admitted that father of the petitioner has got landed property and they are living jointly which clearly proves that the petitioner earna at least some amount from the said land. 8. The trial court after considering the materials and evidence' available on the record, has come to a finding that the petitioner and the applicant opposite party were legally married and they were living as husband and wife for some time and at present applicant opposite party as tortured by the petitioner, left him and residing in the house of her parents. The petitioner opposite party is not maintaining her. Admittedly, the petitioner has solemnized his second marriage with another lady. The applicant opposite party does not earn anything and she has not yet remarried. 9. In case of Shobana Bano vs. Imran Khan reported in 2010(1) S.C.C. 666 , the Hon'ble Apex Court has held:"21. The appellant's petition under Section 125 Cr.P.C. would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 Cr.P.C. cannot be restricted for the iddat period only." I.O. Considering the aforesaid decision and upon considering of the entire matters as discus,sed above. I see no reason to interfere with the order impugned. Accordingly, the revision application is dismissed.