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Allahabad High Court · body

2017 DIGILAW 1363 (ALL)

Naved Khan v. State of U. P.

2017-05-23

MAHENDRA DAYAL

body2017
JUDGMENT Mahendra Dayal, J. 1. The revisionist has filed this criminal revision against the judgment and order dated 05.01.2016 passed by Principal Judge, Family Court, Lucknow in Criminal Misc. Case No. 462/2007, whereby the revisionist has been directed to pay maintenance to the opposite parties No. 2 and 3 @ Rs. 1,000/- and Rs. 500/- per month respectively with effect from the date of the application i.e. 06.06.2007 upto December, 2008; @ Rs. 2,000/- and Rs. 1,000/- per month respectively with effect from January 2009 to December, 2010; a sum of Rs. 2,500/- and Rs. 1,500/- per month respectively with effect from January, 2011 to December, 2014 and Rs. 3,000/- and Rs. 1,500/- per month respectively with effect from January, 2015. It has also been provided that in case, the opposite parties No. 2 and 3 are getting the maintenance in any other case, the same shall be adjusted towards the quantum of maintenance. 2. I have heard learned counsel for the parties and perused the record. 3. It is an admitted fact that the revisionist was married to the opposite party No. 2 in the year 2004 and the opposite party No. 3 is the son, who was born out of their wedlock. According to the opposite parties No. 2 and 3, even after the birth of the opposite party No. 3, the demand of dowry and cruel treatment with the opposite party No. 2, by the revisionist and his family members, continued and it reached to such an extent that on 11.01.2006, both of them were forcibly evicted from the matrimonial home. It is said that even after that, the revisionist did not stop his demand of motorcycle and Rs. 5.00 lacs cash. With the aforesaid allegations, the opposite parties No. 2 and 3 filed an application under Section 125 Cr. P.C. It was also stated by them that the revisionist is working as Manager in M/s. Azam Ali Alam Ali, from where he gets Rs. 15,000/- per month as salary. 4. The revisionist filed objection denying the allegations made by the opposite party No. 2 and stated that the opposite party No. 2 herself left his company and started living with her parents. When the revisionist asked her to live with him, she insisted the revisionist to live in her parental home, to which the revisionist did not agree. 4. The revisionist filed objection denying the allegations made by the opposite party No. 2 and stated that the opposite party No. 2 herself left his company and started living with her parents. When the revisionist asked her to live with him, she insisted the revisionist to live in her parental home, to which the revisionist did not agree. Since then the opposite party No. 2 started harassing the revisionist in various ways. With regard to his income, it was stated by the revisionist that he works as labourer in M/s. Azam Ali Alam Ali and his salary is only Rs. 6,000/- per month. He also stated that his aged mother also lives with him; while the opposite party No. 2 is a teacher in Spring Bird School. 5. The parties led oral evidence before the Court in support of their contentions and the learned Principal Judge, Family Court, Lucknow, by the impugned judgment and order, allowed the application filed by the opposite parties No. 2 and 3 and directed the revisionist to pay maintenance in the manner as stated aforesaid. 6. It has been submitted by the learned counsel for the revisionist that without recording any finding as to the income of the revisionist, he has been directed to pay so much amount of maintenance, which is slightly less than his total salary. The quantum of maintenance is to be fixed, keeping in view the income of the husband and their living standard. The amount of maintenance granted to the opposite parties No. 2 and 3, is highly excessive looking to the income of the revisionist. It has also been submitted by the learned counsel for the revisionist that the maintenance has been awarded from the date of application i.e. 06.06.2007 without recording any reason as to why the maintenance was being awarded from the date of the application and not from the date of the order. For this reason also, the impugned judgment and order is illegal. 7. It is also submitted on behalf of the revisionist that in order to claim maintenance under Section 125 Cr.P.C., the wife has to prove that she is living apart for some sufficient cause. The learned court below has not considered this important aspect of the matter and has not recorded any finding to the effect that the opposite party No. 2 was living separately for any sufficient reason. The learned court below has not considered this important aspect of the matter and has not recorded any finding to the effect that the opposite party No. 2 was living separately for any sufficient reason. In support of his argument, he has relied upon a judgment of this Court, reported in 2015 (2) JIC Page 567. In this case, a Coordinate Bench of this Court has held that in order to receive the amount of maintenance from her husband, the wife has to prove reasonably that she has got just cause to live separately from her husband. 8. Learned counsel for the opposite parties No. 2 and 3 has on the other hand submitted that the allegations against the revisionist are that, soon after the marriage, he started demanding dowry and continued his ill-treatment with the opposite party No. 2, till she was evicted from the house. This itself is a sufficient ground to live separately. The learned counsel for the opposite parties No. 2 and 3 has relied upon a decision of the Hon’ble Apex Court rendered in S.L.P. (Criminal) No. 4377 of 2012 - Shamim Bano v. Asraf Khan, in which, the Hon’ble Apex Court has held that when a woman leaves the matrimonial home, she is deprived of many comforts. The only comfort for the law can impose is, that the husband is bound to give monetary comfort. It is the obligation of the husband to maintain his wife. It has also been observed by the Hon’ble Apex Court that the husband cannot be permitted to plead that he is unable to maintain the wife due to financial constraint as long as he is capable of earning. 9. It has also been submitted by the learned counsel for the opposite parties No. 2 and 3 that it is not disputed that the opposite party No. 2 is the wife of the revisionist and the opposite party No. 3 is his son. Since the opposite party No. 2 is living separately for sufficient cause, therefore, the revisionist is under obligation to maintain his wife and son. The court below has, therefore, not committed any illegality in passing the order granting maintenance to the opposite parties No. 2 and 3. Since the opposite party No. 2 is living separately for sufficient cause, therefore, the revisionist is under obligation to maintain his wife and son. The court below has, therefore, not committed any illegality in passing the order granting maintenance to the opposite parties No. 2 and 3. With regard to the quantum of the maintenance, the submission of the learned counsel for the opposite parties is that the proceedings were pending since 2007, therefore, the learned court below has granted maintenance allowance considering the pendency of the application. The quantum of maintenance has been fixed considering the various facts and circumstances of the case. 10. After giving my anxious thought to the facts of the case and the submissions of the learned counsel for the parties and also on perusal of the impugned orders, I find that there is a dispute with regard to the income of the revisionist. According to the opposite party No. 2, the income of the revisionist is Rs. 15,000/- per month while as per the revisionist, he gets salary @ Rs. 6,000/- per month. The learned court below has not recorded any finding as to what is the income of the revisionist. Unless the income of the husband is fixed or ascertained, the quantum of maintenance cannot be decided. It has been held by this Court as well as by other High Courts that the reasonable amount of maintenance should be around of 1/3rd of the income of the husband. Apart from the quantum of maintenance, the court below has also not recorded any finding that the opposite party No. 2 is living separately for any sufficient cause. It is condition precedent that unless the wife proves that she is living apart for some reasonable cause and she is unable to maintain herself, she cannot claim the maintenance from her husband. It has also not been discussed in the judgment as to how the interim maintenance awarded to the opposite parties No. 2 and 3 was just and proper looking to the income of the revisionist. The date of award of maintenance is a relevant factor in such cases. In the present case, the proceedings under Section 125 Cr.P.C., were pending since 2007 and the same were decided after nine years in 2016. It has also not been discussed in the order as to for whose fault, the proceedings took such a long time. The date of award of maintenance is a relevant factor in such cases. In the present case, the proceedings under Section 125 Cr.P.C., were pending since 2007 and the same were decided after nine years in 2016. It has also not been discussed in the order as to for whose fault, the proceedings took such a long time. The normal rule of law is that the maintenance is granted from the date of order and in case the court proposes to grant the maintenance from the date of application, the Court has to record reasons for doing so, but in the present case, no reason has been shown as to why the maintenance was being awarded to the opposite parties No. 2 and 3 with effect from the date of the application. 11. For the aforesaid reasons, I am of the view that the order passed by the court below, is not in consonance with the judicial pronouncements and the law. Therefore, the impugned order dated 05.01.2016 is liable to be quashed with direction to the Court concerned that the matter be decided afresh in accordance with law after giving opportunity of hearing to the parties. 12. In the result, the revision is allowed and the order dated 05.01.2016 is set aside and the matter is remitted back to the court concerned with direction that the learned court below shall decide the same afresh in the light of the observations made by this Court keeping in view the provisions of Section 125 Cr.P.C.