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Madhya Pradesh High Court · body

2016 DIGILAW 488 (MP)

Mohd. Mustaq Khan v. Rihana Bano

2016-06-21

N.K.GUPTA

body2016
ORDER 1. Both the revisions are filed against the order dated 1.7.2015 passed by the Principal Judge, Family Court, Ashoknagar in Miscellaneous Criminal Case No.01/2015, therefore, decided by the present common order. 2. In Criminal Revision No.660/2015, the husband applicant has filed the present revision against the grant of maintenance of Rs.4,000/- each per month to the respondents No.1, 2 and 3. 3. In Criminal Revision No.1001/2015, the applicants have filed the present revision for enhancement in aforesaid maintenance amount. 4. The facts of the case, in short, are that the applicant husband is husband of the original claimant No.1 Rihana Bano and the father of the claimants No. 2 and 3. The claimants have filed an application under section 125 of the CrPC that marriage of the claimant No.1 took place with the applicant husband on 14.5.2005. Appropriate gifts were given by her father. After that marriage, two children have born. However, behaviour of the applicant husband was cruel to the claimants. Ultimately she was sent to the house of her father in June, 2014 after beating her. At that time, the claimant No.1 was seriously ill and in such situation, she was sent to house of her father. Her treatment was done by her parents. The claimants have pleaded about the income of the applicant husband and claimed maintenance of Rs.20,000/- in all for the claimants. 5. In reply to the application, applicant husband denied all the allegations. He took a plea that the claimants went to attend marriage ceremony of Wasim brother of the claimant wife in June, 2014 and thereafter the applicant husband while coming back gave a sum of Rs.2,000/- with the direction that for next educational session of the children, it was for the claimants to come before 1st July, 2014. However, the claimants did not visit the house of the applicant husband. He has pleaded that he was prosecuting a small shop on footpath. He has a house of two rooms and one courtyard. He is not competent to give any maintenance to the claimants if they are not residing with him. 6. After recording the evidence of the parties, the Principal Judge, Family Court, vide order dated 1.7.2015 granted a maintenance of Rs.4,000/- per month each to the claimants. 7. I have heard the learned counsel for the parties at length. 8. He is not competent to give any maintenance to the claimants if they are not residing with him. 6. After recording the evidence of the parties, the Principal Judge, Family Court, vide order dated 1.7.2015 granted a maintenance of Rs.4,000/- per month each to the claimants. 7. I have heard the learned counsel for the parties at length. 8. The applicant husband has raised a point that he was prosecuting a small business of clothes and his earning is Rs.5,000/- per month and, therefore, maintenance granted by the trial Court is at higher side, whereas it is the case of claimants that maintenance granted by the trial Court is at lower side. In this connection, if evidence recorded by the parties is considered then initially the applicant husband has pleaded that he was prosecuting the business with a shop on footpath, whereas the claimant husband Mustaq Khan (DW1) did not mention in his statement that his shop was a footpath shop. He has accepted that he was prosecuting a business of clothes and, therefore, he was earning a sum of Rs.5,000/- per month. When he has accepted that he was prosecuting a shop of selling of clothes then the trial Court has rightly assessed his income. If a person is prosecuting a shop, which was not on footpath then certainly it was for him to prove his turnover according to the commercial tax or VAT records to show that his income was only a sum of Rs.5,000/- per month and, therefore, if the trial Court has presumed his income to be more than Rs.12,000/- per month and he can pay such amount of maintenance then it cannot be said that the trial Court has presumed the income of the applicant husband without any reason and, therefore, no second view can be taken in favour of the applicant husband. 9. However, when the claimants have pleaded the income of the applicant husband to be at higher side then it was for them to prove his income by independent evidence. No document was filed by the claimants to show the income of the husband and, therefore, there is no reason to accept the claim of the claimants that income of the applicant husband was at higher side and their maintenance may be enhanced. No document was filed by the claimants to show the income of the husband and, therefore, there is no reason to accept the claim of the claimants that income of the applicant husband was at higher side and their maintenance may be enhanced. However, it is to be made clear that if the claimants are in a position to prove the income of the applicant husband at higher side then they would have a liberty to file an application under section 127 of the CrPC for enhancement of the maintenance amount. At present on the evidence led by the parties, it cannot be said that the applicant husband is competent to pay more maintenance as granted by the trial Court. Hence, plea of both the parties relating to change in amount of maintenance cannot be accepted. 10. The applicant husband has also raised a plea that the claimant wife was not entitled to get maintenance without residing with the applicant husband and unless the applicant husband would have taken the custody of the children by an order passed by the competent Court. So far as the objection raised by the applicant husband against his wife is concerned, it was the case of wife that she was ousted by the applicant husband when she was seriously ill and she was dealt with cruelty. 11. On the other hand, it was the reply of the applicant husband that the claimants went to attend the marriage ceremony of brother of the claimant No.1 and thereafter they did not come back. It is the case of oath against oath and, therefore, it was for the trial Court to assess the statements of the parties given on oath according to the circumstances. If the evidence given by the applicant husband is accepted as it is then he gave a sum of Rs.2,000/- to the wife and directed her to come back to the house of husband so that there should be no loss in the studies of the children. However, the applicant husband did not say a single word about the illness of the claimant wife. No fix date was given of marriage of Wasim. The applicant husband could not give any explanation that after opening of the school when the claimants did not come back to the house of applicant husband then whether he took any step to bring them to his house. No fix date was given of marriage of Wasim. The applicant husband could not give any explanation that after opening of the school when the claimants did not come back to the house of applicant husband then whether he took any step to bring them to his house. On the basis of evidence given by the applicant husband, it is clear that neither he went back to being the claimants to his house nor he gave any notice to the claimant wife that she was not coming back. 12. On the other hand, the applicant husband Mustaq Khan has accepted in Para 11 of his cross-examination that without getting a divorce from the claimant wife, he entered into a second marriage. The conduct of the applicant husband clearly indicates that his plea is not acceptable and, therefore, in case of oath against oath, statement of on oath given by the claimant wife appears to be acceptable and the trial Court has rightly found that the wife was ousted by the applicant husband and, therefore, he cannot claim that he would not pay maintenance unless the claimant wife comes and resides with him. Though being a muslim, he could enter into a second marriage but ground of second marriage is available to the first wife for her refusal to reside with her husband. Hence, the trial Court has rightly found that the claimant wife was entitled to get maintenance under section 125 of the CrPC from her husband without residing with him. 13. On the basis of the aforesaid discussions, no illegality or perversity is visible in the impugned order and, therefore, revisions filed by the parties cannot be accepted. Consequently revisions filed by the applicant husband as well as the claimants are hereby dismissed. 14. A copy of the order be sent to the Court concerned along with its record for information. F. A. Shah for applicant; Sohit Mishra for respondents.