Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 196 (ALL)

Rahil Khan v. Lalli Bano

2017-01-13

VIJAY LAXMI

body2017
JUDGMENT Dr. Vijay Laxmi,J. Challenge in this criminal revision is to judgment and order dated 12.06.2015 passed by the Principal Judge, Family Court, Pratapgarh in criminal case No.853/00 whereby the application under Section 125 Cr.P.C. was allowed awarding maintenance of Rs.1,500.00 to the respondent. 2. It is argued on behalf of learned counsel for the revisionist that the respondent could not prove that she was exiled from her matrimonial house. She was living separately from the revisionist without any valid reason. She has not lodged any FIR against revisionist and admitted that she was inclined to take divorce which shows that she is living with her parents on her own accord and she is not entitled to maintenance. The revisionist has not conducted any other marriage which shows that he inclined to live in the company of the respondent. The revisionist had attempted to bring the respondent to his house 3-4 times but she refused to live in his company. The decree of restitution of conjugal rights has been passed by the appellate Court in favour of the revisionist. According to the revisionist, the respondent left her company without any justification. The suit No.70 of 1992 for restitution of conjugal rights Mohd. Rahil Khan Vs Lalli Bano Alias Jatuna was filed by him in the Court of Civil Judge, Junior Division, Sadar, Pratapgarh which was dismissed by the Civil Judge by order dated 30.05.1994 but the appeal against it was allowed vide order dated 21.01.1996. The respondent has defied the order of the Court and despite the decree of restitution of conjugal rights she has refused to live with him, thus she was not entitled for any maintenance. It was wrongly held by the Court below that the income of the revisionist was Rs.5,000-6,000 per month. There was no evidence on record to prove it. 3. It is further submitted that the father of the respondent intended divorce between the two parties and to marry the respondent with the son of his relation residing in Pakistan. It is also submitted that he had not demanded any dowry at the time of marriage or thereafter nor was any dowry given. Some gifts were no doubt given to him as well as his wife which were in custody of his wife. It is also submitted that he had not demanded any dowry at the time of marriage or thereafter nor was any dowry given. Some gifts were no doubt given to him as well as his wife which were in custody of his wife. He did not torture her nor did he ever misbehave with her for the reasons that she had brought meager dowry or that she did not give birth to a child or for any other reason. However, her father was greedy and was adamant to get her divorced and to marry with one of his relation living in foreign country. The respondent was taken to her maternal home by her father under the pretext of the illness of the sister of the respondent but thereafter the father of the respondent did not permit her to come back to matrimonial home despite several efforts made by him. The reliance has been placed on the ruling of Dev Narayan Halder Vs Anushree Halder 2003 (47) ACC 897 and it is argued that his wife left him without any justification, thus she was not entitled to any maintenance under Section 125 Cr.P.C. The impugned order was liable to be set aside. 4. According to the respondent-wife she was living in her maternal home due to cruelty committed by her husband on her. The quantum of maintenance is to be awarded to her on the basis of the income/earning capacity of the husband and the status and standard of living of his family, the basic needs of wife, her status and other relevant circumstances. The amount of Rs. 1500/- per month awarded under impugned order was appropriate and the revision was liable to be set aside. 5. Smt. Lalli Bano examined herself as PW1 and her father as PW2. On the other hand, apart from examining himself as OPW1 the revisionist examined and his father Mohd. Illiyas as DW2. In her application, the respondent had given three reasons for her ill treatment by her husband's family. He was greedy for dowry. She also tortured due to she did not give birth to any child and also he did not like her taking to Hajra, her cousin. She has proved all the grounds. It is established by the evidence on record that the respondent was ill treated by her husband and the behaviour of her husband had been cruel towards the respondent. She also tortured due to she did not give birth to any child and also he did not like her taking to Hajra, her cousin. She has proved all the grounds. It is established by the evidence on record that the respondent was ill treated by her husband and the behaviour of her husband had been cruel towards the respondent. The respondent was forced by her husband to leave matrimonial home. As a result of which she was compelled to live in her maternal home. 6. In the facts and circumstances of this case the wife had fully established by the evidence on record that the husband had refused and neglected to maintain her who tortured and harassed her for not giving birth to a child, for insufficient dowry and threatened her to marry again. She was also prohibited from having talks with her cousin Hazra who was married to Tajjub Ali, one of the pattidar of her husband. Tajjub Ali was having number of litigations with the family of her husband, thus their relations were strained. It is proved by the wife that she made each and every effort to adjust and to accommodate her husband but she was ousted by her husband from her matrimonial home divesting her from jewellery six months before the application for maintenance was filed by her. 7. She has proved that she was also tortured mentally and physically since her husband was not satisfied with the dowry brought by her. He had the habit of beating her for petty reasons. He did not give her the respect due to a wife. She tolerated the cruel treatment meted out to her for many years and ultimately she was ousted by her husband. She had no option but to live with her parents. She had no source of income. Her husband was having sufficient source of income. She, therefore, claimed maintenance for herself. 8. The evidence on record convinced the learned Principal Judge, Family Court that the respondent was subjected to torture and harassment by the revisionist as alleged by her. It was also observed that there was sufficient evidence on record to show that revisionist is an able bodied. Even an unskilled labourer can earn Rs.200.00 to Rs.300.00/- per day in the present time. It was also observed that there was sufficient evidence on record to show that revisionist is an able bodied. Even an unskilled labourer can earn Rs.200.00 to Rs.300.00/- per day in the present time. Thus, it was concluded that he would be earning at least Rs.5,000.00 to Rs.6,000.00 per month and he is a man of sufficient resources. 9. Coming to the facts of the present case, it is not disputed that the parties solemnized their marriage about 30 years back and they are now living separately. Learned Family Court has come to the conclusion that respondent-wife is living separately from last about 26 years due to the physical and mental torture meted to her by her in-laws and her husband. The Family court concluded that the wife is unable to maintain herself. It was observed that the husband would be earning abot 5000/ to 6000/-p.m. The learned lower court has also concluded that the husband, has neglected to maintain his wife and thus has awarded a sum of 1500/- as maintenance. 10. Having heard the submissions made by learned Counsel, I have to address myself to the determination of the following questions: - (i) Whether the application for maintenance of the wife was not maintainable in law due to the decree of restitution for conjugal rights in favour of the revisionist. The wife having denied to comply it. (ii) Whether the wife established the husband's neglect and refusal to maintain her. 11. I record negative answer to the first question that is the application for maintenance cannot be rejected merely on this ground that the decree for restitution for conjugal rights was there against the wife. I record affirmative answer to the second point and allow the petition for the reasons given below: - 12. For the first point, thus it is to be stated that there has had been a change in time and certain subsequent events had taken place. According to the revisionist the main bone of contention was the father of his wife who wanted to get her divorced from revisionist. The father of the respondent has died. She is having no brother. The respondent has proved that she apprehended threat to her life in living with her husband. According to the revisionist the main bone of contention was the father of his wife who wanted to get her divorced from revisionist. The father of the respondent has died. She is having no brother. The respondent has proved that she apprehended threat to her life in living with her husband. The passage of time and the happening of events subsequent to the decree of restitution for conjugal rights changed the circumstances in which the wife's claim for maintenance has to be appraised. 13. It is worth mentioning here that the application for maintenance was pending from 1991 and the suit for restitution of conjugal rights was filed subsequently in 1992. Though it was decided in his favour by the appellate court in 1996, but in the changed circumstances after a period of about 20 years no adverse inference could be drawn against her in view of the discussion made above and in view of his conduct of concealing his income and disclosing it to be only Rs. 200/- p.m. 14. According to the respondent, her husband was having 10 bighas of land, tube-well and engine for irrigation and also one shop of sugar and kerosene oil and he was earning about Rs.10,000.00 per month. But the revisionist denied this fact rather stated his earnings only Rs.200/- per month. It appears to be a blatant lie. It means he was living below poverty line which does not stand to reason. How the revisionist could maintain himself and his wife with such a meagre amount in the modern age of high inflationary pressures? The burden of explaining the question was on the revisionist himself which he has not been able to discharge. His this statement was sufficient to prove his seriousness towards his wife. 15. The Principal Judge observed and rightly so that in the circumstances of this case, the decree for restitution for conjugal rights could not be a bar in the allowing the application for maintenance under Section 125 Cr.P.C. 16. In the cases of maintenance, the court has to see whether the wife has refused to live with her husband without any sufficient reason and it is also to be seen whether the husband has neglected to maintain his wife without any valid reasons. In the cases of maintenance, the court has to see whether the wife has refused to live with her husband without any sufficient reason and it is also to be seen whether the husband has neglected to maintain his wife without any valid reasons. In the present case, admittedly, the parties are living separately from about last 26 years and the reason for living separately is physical and mental cruelty meted out to the wife. It is also not denied that the husband has not paid any maintenance to his wife under Section 125 , Cr.P.C. till date. 17. So far as the question of award of maintenance under the Act is concerned, grant of maintenance to wife has been perceived as a measure of social justice by this Court where certain conditions are to be satisfied before grant of maintenance. In Chaturbhuj v. Sita Bai MANU/SC/8141/2007 : (2008) 2 SCC 316 , it has been ruled that: But there is an inseparable condition which has to be satisfied that the wife was unable to maintain herself. This condition is in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself. In an illustrative case where wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. 18. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. 18. In Bhagwan v. Kamla Devi MANU/SC/0205/1974 : 1975 CriLJ 40 it was observed by Supreme Court about the quantum of compensation that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. 19. I have carefully examined the judgment of the court below. The Family Court has analysed the evidence and held that the revisionist wife was unable to maintain herself. The impugned order declares that husband has neglected to maintain his wife who was entitled to grant of maintenance within the parameters of Section 125 Code of Criminal Procedure which does not suffer from any illegality, impropriety, perversity or jurisdictional error. It is well reasoned and based on appreciation of evidence and hence the same cannot be said to be perverse or perfunctory or illegal. 20. Now coming to quantum of compensation, the Family Court, has awarded the monthly maintenance allowance of Rs. 1500/- to the wife. In today's world, it is extremely difficult to conceive that a woman would be in a position to manage her livelihood in lesser than Rs. 1500/- per month. In Shamima Farooqui Vs. Shahid Khan, MANU/SC/0380/2015, the Supreme Court observed that it can never be forgotten that the inherent and fundamental principle behind Section 125 Code of Criminal Procedure is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands that there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband according to the status and strata of the husband. To quote the relevant para: As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Code of Criminal Procedure, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order Under Section 125 Code of Criminal Procedure can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance Under Section 125 Code of Criminal Procedure, unless disqualified, is an absolute right. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance. 21. While determining the quantum of maintenance, the Supreme Court in Jasbir Kaur Sehgal v. District Judge Dehradun and Ors. MANU/SC/0835/1997 : (1997) 7 SCC 7 has held as follows: The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. 22. The Supreme Court in Captain Ramesh Chander Kaushal v. Veena Kaushal MANU/SC/0067/1978 : (1978) 4 SCC 70 observed that Section 125 Code of Criminal Procedure falls within constitutional sweep of Article 15(3) reinforced by Article 39of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat MANU/SC/0193/2005 : (2005) 3 SCC 636 . 23. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. 23. This being the position in law, it is the obligation of the husband to maintain his wife. He cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning. In this context, I may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila Rani Chander Prakash MANU/DE/0028/1968 : AIR 1968 Delhi 174 wherein it has been opined thus: An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him. 24. In the instant case, as is seen, learned Family Judge has awarded the amount of maintenance of Rs. 1500/-per month. When the husband did not disclose to the Court the exact amount of his income, rather he tried to conceal his real income and stated that his monthly income was 200/-per month, the presumption could be easily raised against him. Learned Principal Judge, Family Court raised a presumption and concluded under such circumstances and rightly so the monthly income of the revisionist to be Rs.5000/ to 6000/- and awarded Rs. 1500/ p.m. as maintenance to her. There may be a shelter over her head in the parental house, but other real expenses cannot be ignored. In fact, when the order is based on proper appreciation of evidence on record, and when substantial justice has been done, there was no reason to interfere. 25. Thus, on a sum total of the evidence and the circumstances mentioned above and considering the reasons given by the Judge, Family Court for awarding Rs. 1500/ p.m. as maintenance to the petitioner, I am of the opinion that findings recorded by the court below are well-merited. 26. The revision is accordingly dismissed.