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2012 DIGILAW 978 (CAL)

In re : Dildar Hossain v. .

2012-10-18

TOUFIQUE UDDIN

body2012
JUDGMENT This revision arose out of order dated 20.2.2010 passed by the learned Chief Judicial Magistrate, Murshidabad in M.R. Case No. 1450 of 2006 thereby directing the petitioner to pay maintenance as per provisions of Section 125 of the Code of Criminal Procedure, 1973 to the O.P. No. 2 @ Rs. 15000/- p.m. and @ Rs. 10000/- p.m. for her minor children. 2. In the background of this revision the fact in a nutshell is that an application was filed by the Opposite Party No. 2 before the learned Chief Judicial Magistrate, Murshidabad thereby praying for granting of maintenance in terms of provisions of Section 125 of the Code of Criminal Procedure for herself and her minor child @ Rs. 20000/- p.m. and Rs. 10000/- p.m. respectively. The petitioner filed objection therein contending that Opposite Party No. 2 was divorced by him and as such the provision of Section 125 of the Code of Criminal Procedure has no application as the parties were Muslims. The Opposite Party No. 2 was entitled to protection as per provisions of Muslim Woman (Protection) of Rights and Divorce Act, 1986 and not under Section 125 of the Code of Criminal Procedure, 1973. The Opposite Party No. 2 had initiated proceedings under Section 498A/302 IPC against the petitioner and his family members. Subsequently, an amicable settlement was arrived at between the parties whereby the Opposite Party No. 2 agreed to accept a one time future maintenance, the amount towards iddat period and a sum of Rs. 5 lacs for herself and her minor son. The said amount was also duly received by the Opposite Party No. 2 and acceptance of such sum of money was recorded in an affidavit duly executed by the Opposite Party No. 2. So, she is not entitled to any further sum as maintenance. The amount already paid was sufficient to provide maintenance for her and her minor child. The petitioner is an unemployed person and is living under the supervision of his father who provides for his fooding and clothing. 3. After hearing both the sides, the learned Chief Judicial Magistrate, Murshidabad was pleased to grant initially an interim maintenance to the Opposite Party No. 2 @ Rs. The petitioner is an unemployed person and is living under the supervision of his father who provides for his fooding and clothing. 3. After hearing both the sides, the learned Chief Judicial Magistrate, Murshidabad was pleased to grant initially an interim maintenance to the Opposite Party No. 2 @ Rs. 500/- p.m. Thereafter, the learned Chief Judicial Magistrate, Murshidabad on consideration of evidence of both sides and submission made by the parties, by his order dated 20.2.10 allowed the prayer of the Opposite Party No. 2 and directed the petitioner to pay maintenance in terms of Section 125 of the Code of Criminal Procedure to the Opposite Party No. 2 @ Rs. 15000/- p.m. and Opposite Party No. 3 @ Rs. 10000/- p.m. payable by 7th of each succeeding month. The arrear, if any, was ordered to be paid by 28.2.2010. The said order was to take effect from the date of passing. 4. I have heard the submissions of the learned counsel for the rival parties and carefully examined the impugned order. 5. It was contended by the learned counsel for the petitioner that the impugned order is bad in law because in terms of present position of law as propounded in (2007) 3 SCC (Cri) 266 [Danial Latifi & Anr. vs. Union of India] and (2007) 3 SCC (Cri) 258 [Iqbal Bano vs. State of U.P. & Anr.], the Opposite Party being a divorced lady is not entitled to get any maintenance. 6. On the other hand, the learned counsel for the Opposite Party vehemently raised objection against the contention of the learned counsel for the petitioner. 7. It was contended by him that the talaq has neither been proved nor established and PW 1 herself categorically denied it in her examination-in-chief as well as cross-examination. 8. It was further contended by him that the petitioner admitted that Opposite Party No. 2 is his married wife. It was further contended that according to law there is no communication of talaq or proof of the same. 8. It was further contended by him that the petitioner admitted that Opposite Party No. 2 is his married wife. It was further contended that according to law there is no communication of talaq or proof of the same. In support of his contention, the learned counsel for the Opposite Party cited before me the decision as reported in (2006) Cr LR (Cal) 619 wherein it was held while dealing with the petition under Section 125 of the Code of Criminal Procedure, 1973 that when the talaq was not valid the petitioner was entitled to maintenance until she was remarried and another decision as reported in (2010) 1 SCC 666 wherein it was held that even a divorced Muslim woman would be entitled to claim maintenance from the divorced husband as long as she does not remarry. Further decision as reported in 2008 (2) SCC (Cri) 490 was cited in support of his submission. 9. The learned trial court in its impugned order has dealt with the question of talaq in the light of the decision vide (2002) C Cr LR 1071 and came to a finding that talaq was not legally proved and accordingly granted maintenance to the petitioner. 10. Now, even if for argument’s sake (without admitting), it is accepted that Opposite Party No. 2 is a divorced wife, yet on the very face of the decision as propounded in (2007) 3 SCC (Cri) 266 (supra) and aforesaid other decision the divorced woman is entitled to get maintenance from her former husband under Section 125 of the Code of Criminal Procedure. Above all, the decision as reported in (2012) 2 C Cr L R (Cal) 232 settles the matter that even after the iddat period, a divorced woman is entitled to get maintenance from her husband till her death or remarriage, whichever is earlier. 11. Next comes the question of amount of maintenance. This aspect relates to a question of fact. The learned court below though did not get any documentary evidence as regards the income of the petitioner, yet on due consideration of the attending circumstances, came to a finding that the family of the petitioner was an affluent one and has substantial income. True it is that in case of non-salaried employee, it is very difficult to get documentary evidence as to income. The actual income is known only to the concerned person. 12. True it is that in case of non-salaried employee, it is very difficult to get documentary evidence as to income. The actual income is known only to the concerned person. 12. Here I look into the evidence that a one-time payment of Rs. 5 lacs is reported to have been agreed by the petitioner. Further the petitioner appeared to have inherited his father’s ‘Bidi’ and Biscuit manufacturing business. I may take aid from the decision as reported in (2005) 1 C Cr L R (Cal) 150 on this score. 13. However, from the evidence it is not clear about the life-style of the Opposite Party No. 2 and detailed expenses for the child. So, considering the available materials on record and circumstances, I am of the view that presently the maintenance amount of Rs. 10000/- p.m. and Rs. 8000/- p.m. for the Opposite Party No. 2 and 3 respectively will serve the ends of justice. 14. Thus, the impugned order stands modified to the above extent and CRR No. 1922 of 2010 stands disposed of accordingly. Urgent certified copies, if applied for, to be issued according to rules.