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2015 DIGILAW 1117 (JHR)

Sajema Bibi v. State of Jharkhand

2015-09-16

RAVI NATH VERMA

body2015
JUDGMENT : The petitioner Sajema Bibi and her minor daughter Sahina Praveen have preferred this revision against the order dated 09.03.2010 passed by the Principal Judge, Family Court, Pakur in Criminal Miscellaneous Case No. 107 of 2007 whereby and whereunder, the court below has refused to grant any maintenance to the petitioner no.1- wife but directed the opposite party no.2 to pay maintenance to his minor daughter petitioner no. 2 a sum of Rs. 200/- per month from the date of the order. 2. At the instance of the present petitioner no.1, who is the wife of opposite party no.2, the aforesaid case was filed before the Principal Judge, Family Court, Pakur with the allegation that she is legally married wife of present opposite party no.2 and their marriage was solemnized about four years ago according to the Islamic Custom and after marriage, they lived together and out of their wedlock, one female baby was born, who is present petitioner no.2 but after birth of the daughter, opposite party no.2- the husband started quarreling with his wife petitioner no. 1 and even assaulted her on several occasion by making false allegation that she is not taking care of her step sons and daughter properly. On 22.03.2006, even the opposite party no.2 tried to burn her by pouring kerosene oil on her body but she anyhow managed to escape from there and took shelter in parents’ house. Since then she has been living in her father’s house along with her minor daughter. She has no independent source of income and her father is also a poor person. It is very difficult for her father to maintain her and her minor daughter though her husband has sufficient means to maintain her. Hence, she claimed Rs. 3,000/- per month as maintenance for herself and for her daughter. It is also stated that she had earlier filed a criminal case against her husband for the offence under Section 498-A/34 I.P.C. and in that case, her husband-the present opposite party no.2, after trial has been convicted and sentenced for one year with fine of Rs.1,000/-. 3. 3,000/- per month as maintenance for herself and for her daughter. It is also stated that she had earlier filed a criminal case against her husband for the offence under Section 498-A/34 I.P.C. and in that case, her husband-the present opposite party no.2, after trial has been convicted and sentenced for one year with fine of Rs.1,000/-. 3. After notice, the present opposite party no.2 appeared in the court below and filed his show cause admitting the petitioner no.1 as his wife and has also stated that after the death of his first wife, he solemnized his second marriage with the present petitioner no.1 to look after his six children. He has admitted that the present opposite party no.2 is his daughter. The further pleading is that his wife Sajema Bibi is earning Rs. 50/- per day from binding Bidi and that it is the petitioner no.1, who disassociated herself from her matrimonial house and from his company. 4. After examining the pleadings and evidences adduced on behalf of the respective parties, the court below directed the opposite party no.2 to pay the maintenance of Rs.200/-per month to the minor daughter petitioner no.2 but declined to pay any maintenance to the wife-petitioner no.1 holding that Sajema Bibi, who has deserted her husband willfully without any valid reason, is not entitled to get any maintenance from her husband -the opposite party no. 2. Hence, this revision. 5. Learned counsel appearing for the petitioners while assailing the order impugned as perverse and bad in law seriously contended that the court below without considering the factum of torture and assault and demand of dowry at the hands of the opposite party no.2 wrongly held that the wife had deserted her husband willfully without any valid reason though in a case filed by the present petitioner no.1 under Section 498-A of I.P.C., the present opposite party no.2 has been convicted by a competent court. It was also contended that the court below without appreciating Ext.-A and A/1, the two sale deeds wrongly held that Sajema Bibi is not a helpless lady and she can maintain herself from the lands transferred in her favour by the two sale deeds but failed to appreciate that lands of the sale deeds never came in possession of this petitioner no.1 rather being the husband, it was the opposite party no.2, who was in possession of the land and he has been enjoying the usufruct of those lands. 6. Refuting the aforesaid submissions, the learned counsel appearing for the opposite party no.2 submitted that this court sitting in revision has a very limited jurisdiction and cannot re-appreciate the evidences available on record and the finding recorded by the court below is based on proper appreciation of the evidence available on record. It was also submitted that the lands of the two sale deeds stand in the name of petitioner no.1 and she is in possession of those two lands. 7. Having heard the learned counsel and after going through the evidences on record and the order impugned, I find that the court below has not appreciated the evidence in right perspective and without any evidence on record held that the wife had deserted the company of the husband, which is wrong and perverse. Even by this Court, several opportunities were given to the opposite party no.2 to show that the lands under the two sale deeds are in possession of the petitioner no.1 but nothing was brought on record to show the possession of the petitioner no.1 over those lands. 8. Apparently, there is no clear finding on the sufficiency of the means or the income of the opposite party no.2 in the order impugned. The opposite party no.2 has nowhere denied either in his show cause or in his evidence that he is not earning anything or he is unemployed. It was the social responsibility and moral duty of the opposite party no.2 to maintain his wife, who has no independent source of income. Even if it be considered that the petitioner no.1 was earning Rs.50/- per day but it was in a situation when her family was starving, she had no option than to earn for maintenance of her family. 9. Even if it be considered that the petitioner no.1 was earning Rs.50/- per day but it was in a situation when her family was starving, she had no option than to earn for maintenance of her family. 9. The provision of Section 125 of the Code of Criminal Procedure is enacted for social justice and specially to protect women, children as also the old and infirm poor parents and falls within the constitutional sweep of Article 15(3) and also under Article 39 of the Constitution. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. It is true that this Court sitting in revision has not to re-appreciate the evidence available on record but when the court below has recorded a finding in negative and has denied to grant any maintenance to the destitute wife, this Court has a jurisdiction to interfere in the order impugned and to re-appreciate the evidence. The judgment of the criminal case in which the opposite party no.2 has been convicted under Section 498-A of I.P.C. has been filed along with this revision application and from perusal of the said judgment, it is clear that the opposite party no.2 and his mother have been convicted by the court below under Section 498-A of I.P.C. This finding of a competent court clearly demolishes the findings of the Family Court that Sajema Bibi had deserted her husband willfully without any valid reason. 10. In view of the above discussion, the order impugned dated 09.03.2010 passed by the learned Principal Judge, Family Court, Pakur refusing to grant maintenance to petitioner no.1 is, hereby, set aside. However, I am not inclined to interfere with regard to second part of the order impugned by which the opposite party no.2 has been directed to pay maintenance of Rs.200/- per month to petitioner no.2. 11. Accordingly, this revision application is allowed. The opposite party no.2 Basir Seikh is, hereby, directed to pay maintenance of Rs.1,000/- per month to his wife-the petitioner no.1 from the date of this order. He is further directed to pay the maintenance amount in the first week of each succeeding month according to English Calendar.