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2017 DIGILAW 1452 (KER)

Shahin Shahad v. Areej

2017-11-28

C.T.RAVIKUMAR

body2017
ORDER : This revision petition is directed against the order dated 3.3.2014 in M.C.No.119/2014 (M.C.No.411/2011 of Family Court, Palakkad) passed by the Family Court, Ottappalam. The revision petitioner herein was the respondent and the respondent herein was the petitioner, therein. The said petition was filed the respondent herein under Section 125(1) of the Code of Criminal Procedure, for maintenance. The Family Court allowed the petition holding that the petitioner therein/respondent herein is entitled to get monthly maintenance and accordingly, granted monthly maintenance at the rate of Rs.4,500/-. The respondent therein/revision petitioner herein was directed to pay the amount at the aforesaid rate from the date of petition i.e., from 27.12.2011. It is to be noted that the case was originally filed before the Family Court, Palakkad. It was transferred to the Family Court, Ottappalam subsequently and it was re-numbered as M.C.No.119 of 2013. The parties are referred to hereinafter in this order as,the revision petitioner' and,the respondent'. 2. The facts, in brief, necessary for the disposal of this revision petition are as hereunder:- The marriage between the revision petitioner and the respondent was held on 16.10.2010 in Sana Auditorium at Edathanattukara of Mannarkkad as per Islam religious rites. After the marriage, they started living as husband and wife in the house of the revision petitioner. Evidently, discordancy developed among them and that ultimately compelled the respondent wife to live separately from 2011 onwards. In the petition, it is averred by the respondent that she left the matrimonial home in April, 2011 and since then, she has been living with her parents. It is further stated therein that she has been living in the mercy of her parents and that she got no source of income to maintain herself. An amount of Rs.7,000/-per month was claimed towards maintenance. The further averments in the petition for maintenance, is to the effect that the revision petitioner is employed and is having an income of Rs.70,000/-per month. The revision petitioner entered appearance and contested the matter. He would admit the marriage as also the factum of their separate residence since the year 2011. But, at the same time, before the Family Court he expressed his willingness and readiness to take care of her and to maintain her provided, she lives with him. The revision petitioner entered appearance and contested the matter. He would admit the marriage as also the factum of their separate residence since the year 2011. But, at the same time, before the Family Court he expressed his willingness and readiness to take care of her and to maintain her provided, she lives with him. It was also his case that he had not neglected to take care and maintain her and there was no valid reason for the respondent to leave the matrimonial home. 3. Based on the rival contentions the Family Court framed the following points for consideration:- “(1) Whether the petitioner is entitled to get maintenance as claimed in the petition? (2) If so what is the quantum?” Obviously, in the absence of any dispute regarding the factum of marriage and also the fact that they are living separately under different roofs, the Family Court went on to consider the questions whether the respondent/petitioner was justified in living separately, whether she is being neglected and whether she is entitled to get maintenance from the revision petitioner. 4. It was the case of the respondent before the Family Court that the revision petitioner and his family members were harassing her by demanding to fetch 100 sovereigns of gold and Rs.3,00,000/-towards dowry and by saying that the revision petitioner who is an Engineer by profession would get 250 sovereigns of gold and Rs.5,00,000/-, if he marries another lady. In short, the contention is that it is the discordancy and harassment that constrained her to leave the matrimonial home and she has been residing separately since April, 2011. It is also her precise case that from 2011 onwards she has been maintaining by her parents as the revision petitioner has been neglecting to maintain her. Before the Family Court, the respondent herein was examined as PW1 and the revision petitioner was examined as RW1. The revision petitioner as RW1 would depose that presently he is unemployed and that he was working as a Data Entry Engineer at Al Hidada Company at Jeddah. He would also depose that the respondent left the matrimonial home without any valid reason and therefore, it is incorrect to say that she is a neglected wife. It is also deposed that the amount demanded for maintenance is highly excessive. He would also depose that the respondent left the matrimonial home without any valid reason and therefore, it is incorrect to say that she is a neglected wife. It is also deposed that the amount demanded for maintenance is highly excessive. The Family Court, on evaluating the evidence, arrived at the conclusion that the respondent is the legally wedded wife of the revision petitioner and from 2011 onwards she is living with her parents. The contention of the revision petitioner that she left the matrimonial home and residing separately without any valid reasons was also repelled. On such consideration, it was ultimately held that she is a neglected wife and therefore, entitled to get maintenance from the revision petitioner. The rate of monthly maintenance was fixed as Rs.4,500/-. 5. In this revision petition the main contention of the revision petitioner is that the respondent is not incapable of maintaining herself. For a proper consideration of the various contentions raised by the revision petitioner, it is only appropriate to extract grounds,B' and,C' and they read thus:- “B. As per Section 125 of Cr.P.C., a person needs to maintain his wife who is “unable to maintain herself” In the given case, there is nothing to show that the respondent-wife is unable to maintain herself. On the contrary, the evidence show that she is not minor, no physical or mental in-capacity to work, no children to take care of etc. Further, the evidence show that she is the heir of her father who is a rich man. There is nothing on evidence to show that she has been starving or not having sufficient dress or sufficient place of residence. These are the basic necessities of a person, so as to invoke the jurisdiction under section 125 of Cr.P.C. Even if for argument sake, it were admitted that, the respondent-wife is suffering poverty, there is Government Scheme to feed the poor that the Government of Kerala supplies rice for Rs.2/-(Two) per kilogram. It has been funny state of affairs that the respondent-wife used to come to the court below, during trial, by Air conditioning Motor Car and seeking maintenance under Section 125 of Cr.P.C., alleging that she has nothing to survive. The court below went wrong in this regard. It has been funny state of affairs that the respondent-wife used to come to the court below, during trial, by Air conditioning Motor Car and seeking maintenance under Section 125 of Cr.P.C., alleging that she has nothing to survive. The court below went wrong in this regard. C. Further, it is relevant to note that as per section 125 of Cr.P.C., the magistrate “may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.” This means that the court needs to order maintenance only if the revision petitioner-husband refuses to maintain the respondent-wife. It is pertinent to note that the revision petitioner-husband who has been examined as R.W-1, categorically deposed that he is ready to maintain the Respondent-wife. But the evidence further shows that the respondent wife is not ready to go and reside along with the revision petitioner-husband in his house and render her marital obligations. During cross examination, the respondent-wife deposed that she is not ready to go and reside in the house of revision petitioner husband, because he remarried. But, it is relevant to note that she filed the above M.C. for maintenance during 2011, and at that time the husband had not been remarried. So her contention is not tenable. Further, it is relevant to note that the revision petitioner-husband is a Muslim who can have four wives at a time, as per his personal law. Further, it is relevant to note that the revision petitioner husband was compelled to remarry only because of the adamant attitude of respondent wife, not to have a reunion. During counseling, the wife refused to resume cohabitation. The court below erred in that regard.” 6. Ground (C) as extracted above itself would reveal that while being cross examined, the respondent-wife deposed before the Tribunal that she was not ready to go and reside with the revision petitioner as he got re-married. The fact that he got re-married is not disputed by the revision petitioner and whereas he would admit the same. However, his contention is that his re-marriage was conducted not in the year 2011 and further that being a Muslim there would be no impediment for him to have four wives at a time, in terms of the personal law. The fact that he got re-married is not disputed by the revision petitioner and whereas he would admit the same. However, his contention is that his re-marriage was conducted not in the year 2011 and further that being a Muslim there would be no impediment for him to have four wives at a time, in terms of the personal law. It is his further case that he was compelled to re-marry only because of the adamant attitude of the respondent against his offer for reunion. Whatever that be, the fact is that the respondent had left the matrimonial home owing to discordancy developed in between them and subsequently, the revision petitioner got re-married. The contention that going by the personal law he can maintain four wives at a time and therefore, the respondent cannot raise the re-marriage of the revision petitioner as a reason for not residing with him, cannot be upheld. The very pleadings of the parties would reveal that due to difference of opinion the respondent left the house and subsequently, the revision petitioner got re-married. The revision petitioner is not at all justified in contending that she should still come and reside with him solely because the personal law permits him to have four wives at a time. The very tone of the contention of the revision petitioner itself would go to show that the revision petitioner got re-married without the consent of the respondent and therefore, he cannot have any right to persuade the respondent to come and reside with him. In such circumstances, it can only be held that the respondent is having just and justifiable reason to refuse to go along with the revision petitioner. In other words, she has a reasonable and justifiable cause to live separately contending that she was neglected. Merely because the revision petitioner offers to take care and maintain her if she comes and lives with him cannot be a reason at all to hold that she is not a neglected wife and that she is not entitled to claim maintenance from the revision petitioner. 7. Now, I will deal with the contention of the revision petitioner that going by the provisions under Section 125 Cr.P.C., a person needs to maintain his wife only if she is unable to maintain herself. The said contention appears to be an acceptable preposition. 7. Now, I will deal with the contention of the revision petitioner that going by the provisions under Section 125 Cr.P.C., a person needs to maintain his wife only if she is unable to maintain herself. The said contention appears to be an acceptable preposition. But, the ground raised by the revision petitioner would reveal that his attempt is to get interpreted the expression “unable to maintain herself” employed in Section 125, Cr.P.C., to mean,not capable of earning'. The contention of the revision petitioner is that she is capable of earning and therefore, not entitled to be maintained. In the context of the contentions it is relevant to refer to the decision of the Hon'ble Apex Court in Rajathi v. Ganesan ( AIR 1999 SC 2374 ), the decision of the High Court of Karnataka in Tejaswini v. Aravinda Tejas Chandra (2010 KHC 7132) and the decision of the High Court of Allahabad in Major Ashok Kumar Singh v. VIth Additional Sessions Judge, Varanasi and others (1991 Crl. L.J. 2357). 8. Paragraph 6 of the decision in Rajathi's case (supra) assumes relevance in the context of the contentions. It reads thus:- “If we refer to proviso to sub-section (3) of Section 125 where a husband offers to maintain his wife on the condition of her living with him and she refuses to live with him a Magistrate may consider any ground of refusal stated to her and nevertheless make an order notwithstanding such offer, if the Magistrate is satisfied that there is just ground for so doing. Explanation to the proviso states that if a husband has contracted marriage with any other woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.” (emphasis supplied) It is evident from the said decision that even if the husband offers to maintain the wife on condition of her living with him and if she refuses the said offer, it is for the Magistrate to consider whether there is any good ground for refusal to stay with him. If the Magistrate satisfies that there is just ground for denying so, despite such an offer, an order for maintenance has to be made. 9. If the Magistrate satisfies that there is just ground for denying so, despite such an offer, an order for maintenance has to be made. 9. Going by the explanation to Section 125(3) Cr.P.C., it is evident that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. In the revision petition as also before the Family Court the revision petitioner had not specifically stated the date of his remarriage. That apart, going by the averments, the specific case of the respondent was that the revision petitioner and his family members were coercing her to fetch 100 sovereigns of gold more and Rs.3,00,000/-further dowry and it is her precise case that she was being mentally tortured by stating that if he had married another lady, he would have had 250 sovereigns of gold and Rs.5,00,000/-. Thus, it is evident that it is the mental harassment, according to the respondent that constrained her to leave the matrimonial home. True that, the revision petitioner denied such allegations. But, at the same time, the fact is that it is raising such grounds that she started to live separately in her paternal home. She has categorically stated that she is now living with the mercy of her parents. At the same time, the evidence before the Family Court as also the specific pleadings in this revision petition would reveal that after the respondent parted with his company and starting living in her paternal home, he contracted another marriage. As noticed hereinbefore, he has not disclosed the date of the second marriage. Whatever be the date of his second marriage, the fact is that subsequent to her leaving the matrimonial home the revision petitioner got remarried. When that be the indisputable position obtained in this case, the respondent wife is certainly entitled to refuse the offer of the revision petitioner to maintain her provided, she lives with him. In such circumstances, her refusal on that ground cannot be a reason at all in the light of the decision in Rajathi's case (supra) as also the explanation to Section 125(3) Cr.P.C., to hold that she is not entitled to maintenance. In other words, it would go to show that she is being neglected and therefore, entitled to claim maintenance. 10. In other words, it would go to show that she is being neglected and therefore, entitled to claim maintenance. 10. In the decision in Rajathi's case (supra), the Hon'ble Apex Court had considered the meaning of the expression “unable to maintain”. In paragraph 7, the Apex Court dealt with the said position. Paragraph 7 of the decision, in so far as it is relevant reads thus:- “.......... High Court did not consider the question if husband was having sufficient means. It rather unnecessarily put the burden on the wife to prove that she was unable to maintain herself. The words "unable to maintain herself" would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 is enacted on the premise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them.....” In Tejaswini's case (supra), a learned Judge of the High Court of Karnataka considered the meaning of the expression “unable to maintain herself”. In paragraph 17 therein, after an elaboration consideration of the issue it was held:- “Keeping in view the aforesaid principle of interpretation of statute, in the instant case, as already observed by me earlier, a plain reading of the expression,unable to maintain herself' cannot lead to the meaning,capable of earning for herself'. Therefore, what is not contemplated by the legislature cannot be read into it by the Court. The expression which is under discussion does not take into account the potential earning capacity of the wife but all that it says is that if the wife is unable to maintain herself and if she satisfies other requirements of the section namely a person having sufficient means neglects or refuses to maintain his wife, the petition by the wife for maintenance cannot be rejected merely on the footing that a wife is capable of earning for herself.” In such circumstances, there can be no doubt the expression “unable to maintain herself” could not be taken to mean “incapable of earning herself”. In the decision in Major Ashok Kumar Singh's case (supra), the claim of the wife for maintenance was sought to be resisted taking up the contention that she is an educated lady and therefore, she was capable of securing an employment. Evidently, the said contention raised was rejected by the court holding that merely because a woman is educated and therefore capable of securing employment, she could not be deprived of her right to get maintenance under Section 125 of Cr.P.C. Essentially, the revision petitioner herein also takes up such a contention. According to him, the respondent-wife is an educated lady and she was earlier having a job and therefore, being an educated lady, she is capable of securing employment. The said contention cannot be sustained at all. Being an educated lady and thereby capable of getting an employment are not at all reasons to deny the right available under Section 125 Cr.P.C. The question is whether she got means to maintain herself. Since the revision petitioner could not succeed in establishing that the respondent-wife got means to maintain herself he cannot escape from his liability and obligation to maintain her, by taking up the contention that being an educated lady she is capable of getting an employment. The learned counsel made a further totally unacceptable contention that even if the liability is admitted and even if it is taken that the wife is suffering from poverty, there is Government Scheme to feed the poor and Government of Kerala used to supply rice at Rs.2/-per kilogram and therefore, she is not entitled to approach the court for seeking maintenance. The said contention besides being wholly unacceptable, is highly deprecatory. After going through the grounds extracted as above and also the decisions referred hereinbefore, I do not find any reason to interfere with the order passed by the Family Court. 11. The said contention besides being wholly unacceptable, is highly deprecatory. After going through the grounds extracted as above and also the decisions referred hereinbefore, I do not find any reason to interfere with the order passed by the Family Court. 11. While being examined as PW1 before the Family Court, the respondent gave the reasons for leaving the matrimonial home as has been pleaded in the petition and mentioned hereinbefore and the subsequent development as has been admitted by the revision petitioner in the petition before the Family Court as also in the revision petition would reveal that after her departure from the matrimonial home he got remarried and in such circumstances, the order of the Family Court holding that the respondent-wife is entitled to get maintenance under Section 125 Cr.P.C. needs no interference. 12. The next question is whether fixation of Rs.4,500/-as monthly maintenance has to be taken as exorbitant warranting interference? The contention of the revision petitioner is that the respondent requires only Rs.1,000/-per month for her maintenance. As noticed in Rajathi's case (supra) it is for the revision petitioner to show that he got no sufficient means to discharge his obligation and that he is not neglecting or refusing to maintain the respondent-wife. Except the bald denial of employment, the revision petitioner had not produced any evidence to establish that he got no means to discharge his obligation or that he is not neglecting her. As noticed hereinbefore, he had admitted that he was employed abroad. Considering the fact that only Rs.4,500/-was fixed as the amount payable to the respondent for her maintenance the revision petitioner is not justified in contending that the said amount fixed by the Family Court is highly excessive warranting an interference, especially taking note of his failure to establish that she is capable of maintaining herself. The fact that he is a qualified Engineer is not disputed. In such circumstances, it can only be held that the revision petitioner had failed miserably to establish that he got no means to maintain the respondent-wife. In the above circumstances, I do not find any reason at all to exercise the revisional jurisdiction to interfere with the order passed by the Family Court. In the result, this revision petition is liable to fail and accordingly, it is dismissed.