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2011 DIGILAW 612 (UTT)

SAMSHAD BEGAM v. STATE OF UTTARAKHAND

2011-09-27

PRAFULLA C.PANT

body2011
Judgment Heard. 2. By means of this petition, moved under section 482 of Code of Criminal Procedure, 1973, the petitioner has sought quashing of the order dated 25.06.2010, passed by Sessions Judge, Pithoragarh, in Criminal Revision No. 04 of 2010, whereby said court has set aside the order passed by the trial court (Chief Judicial Magistrate, Pithoragarh), in Criminal Misc. Case No. 22 of 2009 directing the respondent no. 2 to pay Rs. 3,000/- per month to the present petitioner (wife) under section 125 of Cr.P.C. 3. Heard learned counsel for the parties and perused the affidavits. 4. Brief facts of the case are that, petitioner Samshad Begam got married to respondent no. 2 Shakir Ahmed Khan on 14th of December 1995, following the Muslim Rites, and two daughters namely Kumari Shabnam and Kumari Ashna born out of the wedlock in the year 1998 and 2003 respectively. It appears that thereafter relations between the parties to matrimony soured. It is alleged by the petitioner in her application under section 125 of Cr.P.C. that her husband (respondent no. 2) who used to live in far of place with the Border Road Organization did not come and neglected to maintain her. It is also alleged by the petitioner that respondent no. 2 neither maintained her, nor his two children. It is also pleaded in the application that respondent no. 2 earn Rs. 15,000/- per month as salary from the Government Job he is doing. Consequently, maintenance at the rate of Rs. 4,000/- for herself, and Rs. 2,000/- per month, for children was sought by the petitioner. 5. The respondent no. 2 contested the application under section 125 of Cr.P.C., before the trial court, but he admitted that the petitioner is his wife and Kumari Shabnam and Kumari Ashna are his daughters. However, he denied that he neglected to maintain his wife or children. It is alleged by him that petitioner used to live in her parental house, and did not discharge her matrimonial obligations. 6. The trial court recorded evidence of both the parties, and found that the petitioner is entitled to maintenance at the rate of Rs. 3,000/- for herself and Rs. 2,000/- per month, per child living with her. Consequently, total amount of Rs. 7,000/- per month was directed to be paid by respondent no. 2 to the petitioner. 6. The trial court recorded evidence of both the parties, and found that the petitioner is entitled to maintenance at the rate of Rs. 3,000/- for herself and Rs. 2,000/- per month, per child living with her. Consequently, total amount of Rs. 7,000/- per month was directed to be paid by respondent no. 2 to the petitioner. Aggrieved by said judgment and order dated 25.06.2010, passed by Judicial Magistrate, Pithoragarh, under section 125 of Cr.P.C., respondent no. 2 filed the criminal revision no. 04 of 2010, and the revisional court (Sessions Judge, Pithoragarh) vide order dated 25.06.2010, affirmed the order directing the respondent no. 2 to pay maintenance at the rate of Rs. 2,000/- per month, per child but set aside the impugned order, so far as it relates to the direction to pay maintenance to the wife (present petitioner). Hence this petition. 7. Admittedly, petitioner and respondent no. 2 are wife and husband. It is also not disputed that Kumari Shabnam and Kumari Ashna are their daughters. As to liability to pay maintenance at the rate of Rs. 2,000/- per month, per child, by the respondent no. 2 is concerned, the same is not questioned before this court, and stands finalised. The only dispute before this court is whether the revisional court (Sessions Judge, Pithoragarh) erred in law in setting aside the direction of the trial court to pay maintenance at the rate of Rs. 3,000/- per month to the petitioner (wife). 8. Perusal of the impugned order shows that the revisional court has referred sub section (4) of section 125 of Cr.P.C. and observed that the wife has deserted her husband without sufficient reason as such she is not entitled to the maintenance. However, on going through the papers on record, this court finds that the observation and reason mentioned by the revisional court is against the evidence on record and erroneous in law. Admittedly, the husband is employed with Border Road Organization. He was posted earlier in Assam and thereafter in Jammu and Kashmir (presently said to be posted in District Chamoli). The couple has their home in District Pithoragarh. It is not a case of the respondent no. 2 that he has family quarter, at the place he is posted as Driver, or that the wife is refused to join his company there. The couple has their home in District Pithoragarh. It is not a case of the respondent no. 2 that he has family quarter, at the place he is posted as Driver, or that the wife is refused to join his company there. Had it been the case, husband was living in ancestral village or ancestral house it could have been said that the wife has deserted company of her husband, by going to her parental house and staying there. But when the husband is not living in his ancestral house or ancestral village, the wife can not be faulted with for staying in her parental house, and it can not be said that she has deserted company of her husband. She may have deserted company of her father in law or mother in law but that does not disentitle a woman from claiming maintenance under section 125 of Cr.P.C. Morally, it can be said that wife should have been living in her laws place but legally speaking she has not deserted company of her husband, as the husband himself not living in his ancestral house, and posted in border area where probably he has no family quarter. It has also come on the record that once in a year, the husband comes to his house, but it is not shown that he informed his wife that she had to come there to join his company. 9. In the above circumstances, this court finds that the revisional court has erred in law in holding that the wife has withdrawn from the society of her husband. However, considering the facts and circumstances, and salary of the respondent no. 2 in addition to Rs. 2,000/- per month to Kumari Shabnam and Rs. 2,000/- per month to Kumar Ashna (both daughters), only Rs. 2,000/- per month may be further directed to be paid by the respondent no. 2 to his wife Samshad Begam for her maintenance. Accordingly, this petition under section 482 of Cr.P.C. is disposed of with the direction that respondent no. 2 shall not only pay Rs. 2,000/- per month to Kumari Shabnam and Rs. 2,000/- per month to Kumari Ashna (both daughters), but he shall further pay Rs. 2,000/- per month to his wife (Shamshad Begam) 125 of Cr.P.C. To that extent the orders passed by the courts below stand modified it. 2 shall not only pay Rs. 2,000/- per month to Kumari Shabnam and Rs. 2,000/- per month to Kumari Ashna (both daughters), but he shall further pay Rs. 2,000/- per month to his wife (Shamshad Begam) 125 of Cr.P.C. To that extent the orders passed by the courts below stand modified it. It is clarified that the payment of maintenance to the wife shall be made from the date as directed by the trial court, and the respondent no. 2 is allowed to pay make payment of arrears of maintenance to the wife in three equal installments within one year from today. Future maintenance at the rate of Rs. 2,000/- per month to the wife shall be paid alongwith the amount payable to the daughters by the 10th of every next month, as directed by the trial court.