Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 532 (MP)

Sheikh Raheem Baqsh S/0 Maula Baqsh v. Salma @ Rukhsama W/o Sheikh Raheem Baqsh

2016-07-05

RAJENDRA MAHAJAN

body2016
ORDER : Rajendra Mahajan, J. 1. The applicant has preferred this criminal revision being aggrieved by the order dated 12.11.2014 passed by the Principal Judge Family Court, Chhindwara in M.Cr.C. No. 434/14, the parties being Smt. Salma @ Rukhsana v. Seikh Raheem Baqsh, whereby the learned Judge has directed the applicant to pay the respondent maintenance allowance under Section 125 of the Cr.P.C., @ Rs.5,000/- per month from December 2014 onwards. 2. The relevant and necessary facts for the adjudication of this revision are as under:- 2.1. The respondent had filed proceedings for grant of maintenance under Section 125 of the Cr.P.C on 23.08.2013. She has averred therein that the applicant had first entraped her into a web of love giving her assurances that he is unmarried. Thereafter, he gave her the proposal of marriage. Being illiterate and gullible, she agreed to marry him. On 06.09.1996, he got a deed executed by her before a notary called S.K. Nema, at Amarwada, whereby she has adopted Muslim religion in place of Hindu religion and kept her name Rukhsana Bi in place of Sunita. On 10.01.1997, Qazi Ishahaq of village Salva of district Sarguja performed her marriage with him as per wedding customs and rites prevailing in Muslim religion and in his caste. Her marriage with him was witnessed by Mohd. Nazir Qazi being her wakil and another person. At the time of marriage Rs. 10,101/- was fixed as Mehar. Thereafter, she lived with him as his wife in villages namely Singodi and Loniya. While leading a marital life with him, she came to know that he is already married and that he has had children with his first wife, who are living separately from him in village Harai. Thus, he married her by practising deception on her. Some time after her marriage, he had developed illicit relationship with some women. Whenever she objected to him for having illicit relations, he committed marpeet with her. Since she married him by changing her religion and name, she had no option but to tolerate his illicit relationship. Never the-less she convened a village Panchayat wherein the members of Panchayat advised him not to do so. He assured them that he would behave properly with her in future. However, he backed out the assurance. Later, he started neglecting to maintain her. 2.2. Never the-less she convened a village Panchayat wherein the members of Panchayat advised him not to do so. He assured them that he would behave properly with her in future. However, he backed out the assurance. Later, he started neglecting to maintain her. 2.2. It is further case of the respondent that she has no source of income and that she is totally illiterate. She had done manual labour to earn her livelihood, but now she is unable to do so because of her ill health. The applicant is a driver in the Forest Department of Govt. of M.P.. His salary is Rs. 25,000/- per month. In addition to that, he owns 6 to 7 Auto Rikshaws which he has hired out and wherefrom he earns Rs. 8,400/- per month as rental. He is also the owner of a pakka house situated in village Singodi. He has also given the house on rent at Rs. 25,000/- per month. He also have 5 acres of agriculture land in village Baikunthpur district Sarguja. His agriculture income is Rs. 10,000/-. Thus, he is economically capable of providing her maintenance. She needs Rs. 15,000/- per month for her maintenance. Therefore, the applicant be directed to give her maintenance @ Rs.15000/-per month. 2.3. In written reply, the applicant has admitted that he had married Shahida Bi in 1982 and that he holds the post of driver in the Forest Department of the Government of M.P. However, he has denied all the remaining allegations levelled by the respondent. He has taken the stand that the respondent got married to one Ramdas Vishwakarma, resident of Narsinghpur town, as per Hindu religion and customs. She is still his legal wife. He never married her nor did he ever live with her as her husband. Under the circumstances, she is not entitled to get maintenance from him and her maintenance application be dismissed. 2.4 In the trial Court, the respondent got examined herself as AW-1 and daughter of her sister Jyoti (AW-2) in support of her claims. In oppugnation, the applicant got examined himself as NAW-1 and brother of the respondent Ramesh (NAW-2). 2.5 Upon close analysis of the evidence on record, the learned trial Judge has held that (i) there is no evidence on record that the respondent had ever married one Ramdas Vishwakarma and their marriage still subsists. In oppugnation, the applicant got examined himself as NAW-1 and brother of the respondent Ramesh (NAW-2). 2.5 Upon close analysis of the evidence on record, the learned trial Judge has held that (i) there is no evidence on record that the respondent had ever married one Ramdas Vishwakarma and their marriage still subsists. (ii) Though the respondent has not proved her marriage with the applicant by direct evidence, there is ample indirect evidence on record that proves the respondent’s marriage with the applicant as per Muslim customs and rites, after she had changed her religion from Hindu to Muslim and name from Sunita to Salma @ Rukhsana. There is also evidence on record that the applicant and the respondent had lived in the company of each other as husband and wife for more than 15 years. Moreover, for grant maintenance under Section 125 of the Cr.P.C., strict proofs of the marriage are not required. (iii) Since the applicant and the respondent profess Muslim religion and as per Muslim law, a Muslim man can have four wives at a time, the marriage of the respondent with the applicant is not vitiated in law on the ground that prior to his marriage with the respondent, the applicant was already married. (iv) the respondent has proved that the applicant is neglecting to maintain her. (v) The respondent has no source of income and she earns her livelihood by doing manual work. (vi) It is proved by the admission of the applicant himself that his salary is Rs. 22,000/- per month. However, it is not proved that he has other source of income. On the basis of his salary he is financially capable of maintaining the respondent. Upon the aforesaid findings, the learned trial Judge has allowed the maintenance application and directed the applicant to pay the respondent maintenance @ Rs. 5000/- (five thousands) per month from December, 2014 onwards. 3. The learned counsel for the applicant has submitted that the respondent’s brother Ramesh (NAW-2) has specifically stated in his evidence that the respondent is still married wife of one Ramdas Vishwakarma. However, the learned trial Judge has not relied upon his statement without any cogent reason. He submitted that the respondent has failed to prove by direct evidence that she got married to the applicant. However, the learned trial Judge has not relied upon his statement without any cogent reason. He submitted that the respondent has failed to prove by direct evidence that she got married to the applicant. In direct evidence is not of such a nature that an inescapable conclusion can be drawn that the applicant got married to the respondent or they had ever lived as husband-wife. He submitted that the maintenance granted to the respondent is excessive. Upon these arguments, he submitted that findings of the learned trial Judge are erroneous, in law and on facts. Hence, the impugned order is liable to be set aside. 4. Per Contra, the learned counsel for the respondent has submitted that Ramesh (NAW-2) is annoyed with the respondent because she married the applicant by adopting Muslim religion. In this background, he has given the evidence in favour of the applicant. Therefore, the learned trial Judge has not erred in disbelieving his testimony. He submitted that it is settled in law that for grant of maintenance under Section 125 of the Cr.P.C. strict proofs of marriage are not required. On the basis of indirect evidence, the respondent has proved that she got married to the applicant. Thus, the learned trial Judge has rightly drawn the conclusion by indirect evidence that the respondent is the wife of the applicant. He submitted that the maintenance fixed by the learned trial Judge is the most reasonable in view of high costs of living and it is in proportion to the applicant’s salary. Upon these submissions, he prayed for dismissal of the revision. 5. I have anxiously considered the rival submissions, perused the impugned order and evidence on record carefully and meticulously. 6. The first point for determination before me is that whether the respondent had ever married one Ramdas Vishwakarma and her marriage with him still subsists? The initial burden of proving this fact is upon the applicant because he has claimed so. Applicant Seikh Raheem Baqsh (NAW-1) has merely stated in his examination-in-chief that the respondent married one Ramdas Vishwakarma resident of Narsinghpur and she has not taken so far divorce from him. In para-7 of the cross-examination, he has admitted that he has no photographs of marriage of the respondent with Ramdas Vishwakarma. He has also admitted that he has no documents to prove the respondent ever married Ramdas Vishwakarma. In para-7 of the cross-examination, he has admitted that he has no photographs of marriage of the respondent with Ramdas Vishwakarma. He has also admitted that he has no documents to prove the respondent ever married Ramdas Vishwakarma. Thus, the applicant statement on the point of the alleged marriage of the respondent is termed as a bald statement. Hence, his testimony cannot be relied upon. Ramesh (NAW-2), the brother of the respondent, has deposed that the respondent married Ramdas Vishwakarma 18 years ago and that she has not taken so far the divorce from him. However, he has not substantiated his statement with material and cogent evidence. There is no denying the fact that the respondent has changed her name and religion. Therefore, it could be said with certainty that this witness is annoyed with the respondent because of aforesaid reasons. Actuated by said annoyance, he has given the evidence against his own sister/respondent. Hence, it is totally unsafe to rely upon his testimony. Respondent Salma @ Rukhsana (AW-1) in her deposition has totally denied that she had ever married Ramdas Vishwakarma. She was put to grueling cross examination on behalf of the applicant but there is no iota of evidence in her cross examination regarding the existence of the said marriage. Upon the aforesaid analysis of the evidence, I hold that the applicant has utterly failed to prove that the respondent had married wife of Ramdas Vishwakarma and their marriage is still in existence 7. The second point for determination before me is that whether the respondent is wife of the applicant? The respondent has stated in her examination-in-chief that in the year 1996 she married the applicant by changing her name from Sunita to Salma Rukhsana and religion from Hindu to Muslim. She has also deposed that her marriage with the applicant was performed as per the wedding customs and rites prevailing in Muslim religion in village Bainthpur. Her aforesaid evidence is materially corroborated by Jyoti (AW-2) who is the daughter of the respondent’s sister. However, the respondent has not produced Nikahnama of her marriage with the applicant. In this regard, she has given explanation in her cross-examination to the effect that Nikahnama and other documents are with the applicant. Thus, it is evident that there is no documentary proofs on record with regard to the respondent’s marriage with the applicant. However, the respondent has not produced Nikahnama of her marriage with the applicant. In this regard, she has given explanation in her cross-examination to the effect that Nikahnama and other documents are with the applicant. Thus, it is evident that there is no documentary proofs on record with regard to the respondent’s marriage with the applicant. Now, it is to be seen whether there is other evidence on record. The respondent is not cross-examined at all on the point as to why she had changed her religion and name. Hence, her oral evidence is fully reliable that in order to marry the applicant she has accepted Muslim religion and assumed Muslim name and thereafter the applicant married her. Further the applicant has admitted in his evidence that the respondent has been living in a house of his ownership since 1997 or 1998 in which he is also residing. According to him, the respondent is living as his tenant not as his wife. But the applicant has not adduced any evidence to prove that the respondent is her tenant. Moreover, in para-11 of his cross-examination, the applicant could not give a reasonable explanation when the respondent is her tenant then why her name has been mentioned in the Rashan Card issued to him. Thus, upon the aforesaid evidence it is held that the relationship between the applicant and the respondent are as husband and wife. 8. The third point for determination before me is that whether the applicant is neglecting the maintenance of the respondent? The respondent has testified that she got married to the applicant in the year 1996. The applicant kept him with dignity for the first eight to nine years of her marriage. Thereafter, he has developed illicit relations with some women and that he used to bring them to their house. Upon her protest, he used to beat and badly treated her. In the year 2012, he deserted her. Since then, she has been living in one room of the house where the applicant also resides. She further deposed that she has no source of income and the applicant neglects her maintenance. Her aforesaid evidence is corroborated by Jyoti (AW-2). Both the witnesses are subjected to grueling cross-examinations on behalf of the applicant. But, there is nothing in their cross-examination to disbelieve them. She further deposed that she has no source of income and the applicant neglects her maintenance. Her aforesaid evidence is corroborated by Jyoti (AW-2). Both the witnesses are subjected to grueling cross-examinations on behalf of the applicant. But, there is nothing in their cross-examination to disbelieve them. Upon the aforesaid analysis of the evidence, I hold that applicant is neglecting the maintenance of the respondent since the year 2012. 9. The forth point for determination before me is that whether the maintenance granted by the learned trial Judge to the respondent is excessive. The applicant has admitted in his reply to the maintenance application and in para-12 of his evidence that he holds the post of driver in the Forest Department of the Govt. of M.P., and his monthly salary is Rs.21,900/-. As per the impugned order, the learned trial Judge has ordered the applicant to give the respondent maintenance allowance @ Rs.5000/- per month. Taking into consideration, the salary of the applicant and the rising costs of living, I hold that the maintenance allowance granted to the respondent by the learned trial Judge is just and proper and the applicant is capable of paying it without experiencing any financial hardships. 10. Upon the aforesaid findings, I come to the ultimate conclusion that the impugned order of learned Judge directing the applicant to pay to the respondent monthly maintenance allowance @ Rs.5000/- is based on proper appreciation of evidence on record. Hence, this revision being merit-less and devoid of substance, is hereby dismissed affirming the impugned order. 11. Accordingly, this revision is finally disposed of.