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2016 DIGILAW 2154 (ALL)

TARIQ ALI v. STATE OF U. P.

2016-06-07

ABHAI KUMAR

body2016
JUDGMENT : Abhai Kumar, J. This revision under Sections 397/401 of Cr.P.C, 1973, has been filed against the impugned order dated 05.03.2016 passed by Principal Judge, Family Court, Bijnor, whereby application under Section 125 of Cr.P.C. of opposite party nos. 2 and 3 was allowed. The relevant facts in brief are as follows:- Dr. Iram Fatima, opposite party no. 2 was married on 17.02.2008 to the revisionist Dr. Tariq Ali. In the month of May, 2009, the wife deserted the from the revisionist on account of non-fulfilment of demand of dowry and since then she is living separately. Application under Section 125 of Cr.P.C was being moved. After the evidence of the parties and hearing the parties, the impugned order was passed, whereby the opposite party no. 2 -Dr. Iram Fatima was awarded Rs. 5,000/-per month and the opposite party no. 3 was awarded Rs. 3,000/-per month for their maintenance from the date of application. It is submitted by the learned counsel for revisionist that opposite party no. 2 -Dr. Iram Fatima herself is a doctor and she can very well maintain herself as such the maintenance given to her is legally not sustainable. Learned counsel for the revisionist has also opposed the maintenance from the date of application but, so far the maintenance that is being awarded to the opposite party no. 3-Baby Sadiya (Km. Sadiya Fatima), no objection has been raised by the learned counsel. It is admitted fact that opposite party no. 2 married to revisionist though it is submitted by learned counsel that she has already been divorced by the revisionist but on that count the impugned order is not being challenged. This is not disputed that opposite party no. 2 is a doctor. She earns about Rs. 25,000/-per month from the practices in her home town is disputed and she has also worked in Welcome Hospital Center from 04.08.2008 to 18.05.2009 is not disputed, but it is asserted by opposite party no. 2 that after that Dr. Iram Fatima is jobless and she is not practising and as such she is entitled to maintenance for herself. Counsel for the revisionist vehemently argued that Dr. Iram Fatima is regularly practising and earning for her livelihood. Photographs of clinic are also being filed, which is in the name of Hashimi Shifakhana, wherein name of Dr. Iram Fatima is also enclosed. During the cross – examination Dr. Counsel for the revisionist vehemently argued that Dr. Iram Fatima is regularly practising and earning for her livelihood. Photographs of clinic are also being filed, which is in the name of Hashimi Shifakhana, wherein name of Dr. Iram Fatima is also enclosed. During the cross – examination Dr. Iram Fatima asserted that this medical center is of her father and she used to help her father but she is not regular practitioner and she is not earning. The trial court after considering the evidences of both the parties came to the conclusion that husband is having sufficient income to maintain his wife as well her child (daughter) and his wife and daughter are not having sufficient means to maintain themselves and accordingly passed the order. There is clear-cut observation of the trial court that Dr. Iram Fatima is a not practising at this moment and there is no source of income for herself. It is also observed by the court that no maintenance was granted by the revisionist either to the wife or his daughter. By mere producing some photographs and asserting that opposite party is sitting in clinic without any supporting evidence it cannot be said that Dr. Iram Fatima is having sufficient means to maintain herself. By mere sitting with father in a clinic without earning can not absolve revisionist from maintaining his wife. If the trial court found that this fact is correct then this Court is also refrain itself to enter in the correctness of the impugned order. So far the award of maintenance from the date of application, it is submitted by the learned counsel that there is no provision for that and maintenance should have been awarded from the date of order. Learned counsel supported his view by the principles laid down by the Hon’ble Supreme Court in Bhuwan Mohan Singh Vs. Meena & Ors. in 2014 Law Suit (SC) 551. Hon’ble Apex Court observed that if in order to cause enormous delay in disposal of proceeding under Section 125 Cr.P.C, most of the time the husband had taken adjournments then under the circumstances, if the maintenance is granted from the date of application there is no illegality in the impugned order. Learned counsel argued that in the present case opposite party no. Learned counsel argued that in the present case opposite party no. 2 – the wife herself delayed the proceedings and she can not be allowed to reap the fruits of her own fault, but learned counsel failed to give any evidence regarding the delay caused by the wife and this court is of the opinion that wife will always be willing to get the case decided expeditiously and most of the time it happens. Some order-sheets are being filed to show the delay caused by the opposite party no. 2 – Dr. Iram Khatoon, but from that no inference can be drawn that delay has been caused by the opposite party no . 2 – Dr. Iram Khatoon. Hon’ble the Apex Court in the case of Bhuwan Singh (supra) has justified the payment of award from the date of application and has observed as follows:- “43. We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in sub-section (1) of Section 125 of the Code in absence of express provision to that effect.” Although the trial court has not given any specific reason at the conclusion of the order, but from the facts, it is clear that opposite party nos. 2 & 3 were not in a position to maintain themselves since the opposite party no. 2 was deserted by the revisionist and since then she is living separately with her parents and it is her father, who is maintaining her. All these facts have been observed by the learned trial court in its order, so mere not mentioning this fact on the conclusion of the order and in operative portion and mere writing that maintenance should be paid from the date of application, cannot be said that reason has not been assigned for that. All these facts have been observed by the learned trial court in its order, so mere not mentioning this fact on the conclusion of the order and in operative portion and mere writing that maintenance should be paid from the date of application, cannot be said that reason has not been assigned for that. On the basis of above discussions I do not find any reason to interfere with order so passed by the court below. Hence the revision is liable to be dismissed. Dismissed. ——————