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2013 DIGILAW 316 (JHR)

Anisha Bibi v. Ezaz Ahmed

2013-03-04

JAYA ROY

body2013
ORDER These two revision applications have been filed against the same impugned judgment dated 7.12.2011 passed by Principal District and Sessions Judge cum Principal Judge, Family Court, Pakur in Criminal Miscellaneous Case No.15 of 2010 by both the parties. Therefore, both the revision applications were heard together. 2. The petitioners in Criminal Revision No.548 of 2012, filed an application under Section 125 Cr. P.C. against the opposite party namely Ezaz Ahmed, who is the husband of the petitioner No.1 and father of petitioner no.2 and 3 (in Criminal Revision No.548 of 2012) before the court of Principal Judge, Family Court, Pakur, for a direction to the opposite party to pay a maintenance of Rs.30,000/-to them as he is not maintaining them. 3. The said case was registered and the court below after considering the evidence adduced by both the parties and the materials on record, directed by its judgment dated 7.12.2011 to the opposite party to pay the maintenance of Rs.3,000/-to the petitioner no.1 and Rs.1,000/-to each of the children (petitioner no.2 and 3) till they attained the age of majority. Besides this, the opposite parties are also directed to pay a sum of Rs.1,000/- as expenses of the proceeding. 4. Counsel for the petitioners, has submitted that the case in brief is that, as the petitioner no.1 is the wife of the opposite party and the petitioner no.2 and 3 are the minor children of the opposite party, but, the opposite party did not maintain them and ultimately having no alternative, the petitioners have filed the instant case under Section 125 Cr. P.C. claiming the maintenance. It is contended that the petitioner no.1 namely Anisha Bibi is legally married wife of the opposite party namely Ezaz Ahmad and their marriage was solemnized according to the islamic rites and customs few years ago. The petitioner no.2 and 3 are the minor children of the opposite party no.2 from the said wedlock. At the time of marriage, Rs.1,50,000/-was fixed as 'Den Mohar' , out of that, an amount of Rs.50,000/-was paid in cash and Rupees One Lakh was deposited with the State Bank of India, Pakur, at Chanchki Branch in the joint name of petitioner no.1 and the opposite party. At the time of marriage, Rs.1,50,000/-was fixed as 'Den Mohar' , out of that, an amount of Rs.50,000/-was paid in cash and Rupees One Lakh was deposited with the State Bank of India, Pakur, at Chanchki Branch in the joint name of petitioner no.1 and the opposite party. Both the parties lived peacefully for three years, but, thereafter, the opposite party started demanding a sum of Rupees Two Lakhs for which a complaint case was filed, but ultimately, the said case was compromised. Thereafter, the opposite party again started demanding a sum of Rupees Five Lakhs and due to non fulfillment of the said demand, the petitioner no.1 was subjected to mental and physical cruelty. Thereafter, the said amount of 'Den Mohar' i.e. Rupees One Lakh which was deposited in the Bank, was withdrawn after threatening the petitioner no.1 and ultimately, the opposite party started assaulting in such a way, the petitioner no.1 informed her brother regarding the harassment and assault and he brought to her house with the said two children. 5. Counsel of the petitioners, has further contended that the petitioners are unable to maintain themselves as they have no source of income and on the other hand, the opposite party is running a shop of readymade garments and saree. Besides this, he is also running Marshal vehicle, Sumo vehicle and Bolero vehicle which belong to the opposite party and the monthly income of the opposite party in total is more than Rs.80,000/-per month. Therefore, the petitioners are entitled a sum of Rs.30,000/-as their maintenance from the opposite party. Counsel appearing for the petitioner has submitted that though the petitioner could not produce any paper regarding the monthly income of the opposite party, but the witnesses have supported the petitioner's case and stated that the monthly income of the opposite party is Rs.60,000/-to 70,000/-per month and they have also mentioned that the opposite party does not maintain the petitioners since long. Thus the petitioners having no source of income are unable to maintain themselves. 6. Counsel appearing for the petitioners has further submitted that the O.P.W.-2 has admitted in his cross examination that the sister in law of the opposite party lives with him since the year 2008. This fact clearly shows that the opposite party has solemnized second marriage with another woman. 7. 6. Counsel appearing for the petitioners has further submitted that the O.P.W.-2 has admitted in his cross examination that the sister in law of the opposite party lives with him since the year 2008. This fact clearly shows that the opposite party has solemnized second marriage with another woman. 7. The opposite party has appeared and filed his show cause, but he has not denied the relationship between the parties, but he has denied all the allegations made against him and stated that the petitioner no.1 is a quarrelsome lady and she wanted the opposite party to live separately. As the opposite party did not accept her proposal, she left her matrimonial home. 9. Counsel appearing for the opposite party has submitted that no documentary evidence has been adduced on behalf of the petitioners and even the evidence of the witnesses examined on behalf of the petitioner does not appear to be trust worthy. It is also submitted that the petitioner no.1 is having a tailoring shop, from which she earns some amount and further she earns Rs.2,000/-per month by selling clothes in the market. 10. I find from the records that the petitioners have examined four witnesses including herself as P.W.-1 and the opposite party also examined two witnesses, but the opposite party himself has not been examined in this case and no explanation has been given for his non examination. 11. Considering the submissions made by both the parties and also considering the materials on record and the evidences of the witnesses, I find that the trial court has rightly come to the conclusion that the petitioner is the legally married wife and the petitioner no.2 and 3 are the minor children of the opposite party and further as the opposite party could not produce any evidence about the income of the petitioner no.1 to prove that she is able to maintain herself and her two minor children and on the other hand the opposite party having sufficient means, but neglects and refuses to maintain the petitioners, the petitioners are entitled to get the maintenance from the opposite party. Accordingly, the trial court has directed the opposite party to pay the maintenance of Rs.3,000/-to the petitioner no.1 and Rs.1,000/-to each of the children till they attain the age of majority and also directed to pay a sum of Rs.1,000/-as expenses of the proceeding. Accordingly, the trial court has directed the opposite party to pay the maintenance of Rs.3,000/-to the petitioner no.1 and Rs.1,000/-to each of the children till they attain the age of majority and also directed to pay a sum of Rs.1,000/-as expenses of the proceeding. I do not find any illegality in the impugned order and the amount of maintenance is also not excessive or unreasonable. Therefore, both these criminal revision petitions being Cr. Revision No.548 of 2012 and Cr. Revision No.98 of 2012, having no merit are rejected.