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2012 DIGILAW 270 (MP)

Shano v. Arshad Qureshi

2012-03-06

S.R.WAGHMARE

body2012
JUDGMENT 1. This criminal Revision under section 397 read with section 401 of the CrPC has been filed by the wife Smt. Shano W/o. Arshad Qureshi being aggrieved by the order dated 27.10.09 passed in Miscellaneous Criminal Case No. 33/08 by the Additional Principal Judge, Family Court, Ujjain dismissing the application of the petitioner wife filed under section 125 of the CrPC for grant of maintenance. 2. Brief facts necessary for elucidation are that the petitioner was married to the non-applicant husband Arshad Qureshi according to Muslim rites on 23.4.06 at Ujjain and within a period of six months, the matrimonial discord became evident and there was a separation on 23.12.06 and the wife started residing with her parents and filed application for grant of maintenance on 22.11.07. The applicant refused to go back to the husband. However during the pendency of the proceedings the parties arrived at compromise in March 2008 and the wife returned to her matrimonial home. However, very shortly the applicant wife attempted to commit suicide by burning and therefore returned home to her parents. Thereafter, the applicant served notice to the respondent non-applicant husband, however, the notice failed to take into account that Rs. 30,000/- had already give to the wife on the compromise. 3. Counsel for the petitioner however vehemently urged that the application for maintenance was wrongly turned down by the trial Court and thereafter by the appellate Court without considering the facts available on record. Counsel also urged that both the Courts below had erred in rejecting the claim on the basis of the statements of Parvin PW 3. Counsel stated that undoubtedly she was the counsin sister and sister-in-law of the applicant and had deposed in Court that the applicant had tried to burn herself. This evidence was obtained by the husband party under duress because Parvin was still staying with the in-laws and counsel contended that it was not a good ground for rejecting the grant of maintenance. Counsel urged that the applicant husband was making only show of compliance by stating that he was willing to keep the wife whereas there was evidence of cruelty and demand of dowry available on record. Counsel urged that the impugned judgment be set aside and a sum of Rs. Counsel urged that the applicant husband was making only show of compliance by stating that he was willing to keep the wife whereas there was evidence of cruelty and demand of dowry available on record. Counsel urged that the impugned judgment be set aside and a sum of Rs. 4,500/- be awarded as maintenance per month to the wife since the husband was a tailor by profession and had more than sufficient means to pay the maintenance. 4. Counsel for the respondent/husband, on the other hand, has opposed the submissions and stated that the husband was willing to stay with the wife and hence had even worked out the compromise in the year 2008. Whereas the wife was making false allegations against him and his family members by alleging that they had poured kerosene over the applicant and caused burn injuries, which was not true. The witnesses had examined Smt. Shabra Khatun (PW 2) and Smt. Parvin (PW 3) had completely exonerated the present husband respondent, it was also noted that on slightest pretext the applicant threatened that she would commit suicide. Besides the Court had also taken into consideration that Rs. 30,000/- had already been paid to the wife, her demand according to the compromise and no further ground remained for her to refuse to return to the matrimonial home. Under these circumstances, Counsel stated that the wife Shanno (PW 1) had not resided more than 15 days in her matrimonial home and was now turning around in making such serious allegations against the husband and making a demand of maintenance which was not at all justified under the circumstances. 5. Relying on Smt. Munesh Kumar v. Shri Raj Singh and another [2003 CriLJ 215] Counsel stated that the Court had held that there must be a positive finding of fact recorded by the trial Court that the husband had failed to maintain the wife and neglected her. It was further held that interference by revisional Court by substituting its own finding by and setting aside the order granting maintenance, was an order without jurisdiction. 6. Counsel vehemently urged that there was no fault on the side of the husband. It was further held that interference by revisional Court by substituting its own finding by and setting aside the order granting maintenance, was an order without jurisdiction. 6. Counsel vehemently urged that there was no fault on the side of the husband. He made all possible and reasonable attempts to bring about reconciliation; in fact this Court has itself made three attempts which have been frustrated by the applicant/wife and this Court had observed in the order dated 22.4.10 that the husband and wife could not possibly live together peacefully in the matrimonial house and it would be futile to bring about a compromise. Thus he stated that reconciliation was not possible and prayed that the petition was without merit and prayed for dismissal of the application. 7. Considering the above submission I find that the marriage has irreparably broken down between the parties and there are no chance of reconciliation. It would be futile to consider as to who is to blame. The very fact that there was an episode of the wife trying to burn herself indicates that the matrimonial discord is not an illusion and there are serious differences between the husband and wife. Under these circumstances considering the objectives of section 125 of the CrPC. I find that it is a beneficial of legislation made for protection of women and the wife could be entitled to the grant of maintenance. Both the Court’s have failed to consider this aspect. Moreover, it cannot under any circumstances be said that the wife was refusing to live with the husband without any good reasons. 8. Placing reliance on Kamlabai v. Amritram [1990 (II) MPWN 166] I find that mere offer to live together may be just an excuse to ward off liability to pay mainteance and merely because the wife was herself left the matrimonial home is no ground to disentitle her from maintenance (Mannava Satyawati and others v. Manmnava Malleswara Rao and others [1995 SCC (Cri.) 836 relied on]. Thus on considering the both the impugned judgments of the Court below I find that there is no finding regarding the income of the respondent/husband. Thus on considering the both the impugned judgments of the Court below I find that there is no finding regarding the income of the respondent/husband. In this view of the above this petition is partly allowed to the extent that the wife is entitled to the maintenance under section 125 of the Cr.P.C. however, the matter is remanded to the trial Court to give a finding regarding the earning of the husband. Both the parties shall lead in this regard and the maintenance shall be awarded by the trial Court to the wife in accordance with the provisions of law after hearing both the parties. 9. The petition is partly allowed to the extent herein above indicated.