Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 148 (JK)

Shabir Ahmad Kant v. Rifat Jabeen

2015-04-03

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT The respondent filed maintenance application under section 488 Cr.PC against the petitioner herein. The application was considered and decided by the Electricity and Passenger Tax Magistrate, Srinagar vide order dated 26th October, 2013, whereunder, the petitioner herein has been directed to pay an amount of Rs. 5000/- to the respondent-claimant. The order has been made operative from the date of filing of maintenance application. This order was called in question in a Revision petition which has been disposed of by the learned 2nd Additional Sessions Judge, Srinagar vide order dated 22nd April, 2014. The petitioner feeling aggrieved of the same has challenged it by filing petition under section 561-A Cr. PC. Learned counsel for the petitioner submitted that while deciding the maintenance application, the learned Magistrate has not recorded finding about the means of income of the petitioner. Learned counsel submitted that the direction for payment of maintenance has to be made with reference to earning capacity of the petitioner. Learned counsel submitted that the learned Magistrate has not adverted its attention to the aforesaid proposition propounded by learned counsel and submitted that order passed by the learned Magistrate is illegal inasmuch as, he has only directed for payment of maintenance with reference to issue of living status of the parties. In Law, it is duty of the husband to maintain his wife. The maintenance can be denied only on the recognised legal grounds. The court while considering the application for grant of maintenance has to consider the relevant factors which may at times include the earning capacity of the husband. However, the maintenance cannot be denied to the wife on the ground that the husband has no means of income. The husband is duty bound to maintain his wife and for that he may even work as a labourer or do any other kind of lawful work. The husband cannot refuse to maintain his wife by stating that he has no means of income and he is an idle person. The Court has perused the statement of the petitioner herein, which is part of the original record. In his statement recorded on 31st May, 2013, he has given details about the circumstances which culminated in the marriage between the petitioner and the respondent as also his claim of divorcing the respondent. The Court has perused the statement of the petitioner herein, which is part of the original record. In his statement recorded on 31st May, 2013, he has given details about the circumstances which culminated in the marriage between the petitioner and the respondent as also his claim of divorcing the respondent. In the examination-in-chief, the petitioner has said nothing about the means of income, however, in cross examination petitioner before the learned Magistrate has stated that his monthly income is Rs. 6000/- to 8000/-. It is further stated that his father is retired employee, who is in receipt of the pension. In his statement, petitioner has not stated that which type of business he is conducting. On the other hand he simply stated that he is a business man. Respondent-claimant has stated that petitioner is Pharmaceutical Distributor. Whereas, one of the witness of petitioner herein Mr. Imtiyaz Ahmad Beigh has stated that his monthly income ranges from Rs. 8000/- to 10,000/- and is a Pharmaceutical Distributor. In view of the aforesaid fact situation, the submission of learned counsel for the petitioner that means of income is not considered by the learned Magistrate pales into insignificance. It is admitted that the petitioner is a business man and his income ranges from Rs. 6000/- to 8000/-. He has not disclosed to the Court as to which type of business he is conducting. Though normally Court does not re-appreciate the evidences under section 561-A Cr. PC, but in order to meet out the justice to the parties, it was deemed necessary in view of the submission made by learned counsel for the petitioner to appreciate the evidence as well. No other argument was made by learned counsel for the petitioner in support of his petition. The very fact that the petitioner is a Pharmaceutical Distributor would show that he has sufficient means to pay maintenance @ Rs. 5000/- per month to respondent-claimant. In the present times, when prices are sky rocketing, it is otherwise very difficult for a person to maintain himself on a meagre amount of Rs. 5000/- per month. This is minimum amount which has been ordered to be paid to the respondent. No illegality has been committed by Subordinate courts in awarding maintenance. For the above stated reasons, this petition is held to be meritless and is accordingly dismissed alongwith connected IA(s).