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Gauhati High Court · body

2019 DIGILAW 389 (GAU)

Syed Mujaffar Hussain v. Syeda Nahida Montaz

2019-03-27

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard the Mr. S.A. Ali, learned counsel for the petitioner as well as Mr. P.K. Garodia, learned counsel appearing for and on behalf of the respondent. 2. By filing this revision under section 482, Cr.PC, the petitioner has sought for quashing of the proceeding pertaining to EC. (Crl.) Case No. 194/2016, pending before the learned Principal Judge, Family Court No. 1, Kamrup at Guwahati and the impugned order dated 1.12.2016, whereby the learned trial court has directed the present petitioner to pay interim maintenance @ Rs. 2,500 per month to the respondent. 3. The respondent who is the wife of the present petitioner filed a maintenance petition before the Family Court No. 1, Kamrup at Guwahati, praying for maintenance for herself and her minor daughter which was registered as F.C. (Crl.) Case No. 194/2016, under section 125, Cr.PC. 4. In the maintenance, the respondent-wife has submitted that they entered into marriage on 3.5.2009, according to the Muslim rites and out of their wedlock, a child was bom on 14.7.2010. But after the birth of the baby, the behavior of the respondent/present petitioner changed and he began to ask the petitioner to bring money to the tune of Rs. 10 lakhs from her father to expand his business. According the respondent wife managed to pay Rs. 2.5 lakhs for the sake of their daughter but despite the same, the husband started to ill-treat her by demanding her to bring more money, otherwise he threatened to divorce her. Due to inability to pay the demanded amount, her husband increased physical and mental torture upon her with a threat that he will marry another woman. Ultimately on 8.4.2011, the respondent-wife was beaten up badly by her husband and on 3.5.2011, she was driven out of the house after beating her badly. Finding no alternative, she started to reside in her parental home along with her eight months old baby. It is stated in the petition that her husband never tried to bring her back, rather he served a legal notice for giving divorce upon the respondent-wife. Under the circumstances, the respondent-wife filed the maintenance petition before the Family Court, claiming maintenance for herself and her minor child. 5. The present petitioner being the respondent also filed the written statement admitting the marriage and birth of the child but denied the other allegations. Under the circumstances, the respondent-wife filed the maintenance petition before the Family Court, claiming maintenance for herself and her minor child. 5. The present petitioner being the respondent also filed the written statement admitting the marriage and birth of the child but denied the other allegations. By narrating long details about various facts, the husband/present petitioner tried to blame his wife with certain other allegations that she has love affairs with another person, etc., and submitted that she herself willfully left the matrimonial house without there being any fault on the part of her husband. It is stated that he has also filed a petition for restitution of conjugal rights vide F.C. (Civil) No. 842/2016, on 14.12.2016. 6. The learned trial court after perusing the pleadings between the parties and on the prayer of the respondent-wife, vide order dated 1.12.2016 has directed the present petitioner to pay monthly maintenance to his wife and their minor daughter @ Rs. 2,500 per month from the date of order, considering the fact that the petitioner has a wholesale shop having income of Rs. 30,000 per month. 7. Now the present petition has been preferred by the petitioner/husband for quashing the aforesaid maintenance petition on the ground that the wife herself for her own conduct, left the matrimonial home at her own will, without there being any role on the part of the present petitioner and is living an adulterous life. It contends that in view of subsection (4) of section 125, Cr.PC, the respondent wife is not entitled to claim maintenance and the learned Family Court failed to consider the aforesaid aspect. 8. On the other hand, in view of the petition filed by the petitioner for restitution of conjugal rights, there cannot be any question of neglect on the part of the present petitioner. Under the circumstances, the petitioner has preferred the present petition for quashing. 9. I have heard the submission of learned counsel for the petitioner/husband as well as learned counsel for the respondent-wife. 10. The learned counsel for the petitioner has referred to the provisions of Family Court under sections 10, 19 and 20 of the Family Courts Act, which provides special procedure for adjudication of such family matters by the court itself. Accordingly it has been contended that there is no scope to entertain such petition under section 482, Cr.PC, by this court. 11. Accordingly it has been contended that there is no scope to entertain such petition under section 482, Cr.PC, by this court. 11. On the other hand, the learned counsel for the respondent has submitted that as he has already filed the Restitution Petition, till decision of the aforesaid petition, coupled with the fact that the respondent-wife choose to remain separate at her own will, such a proceeding under section 125, Cr.PC is not maintainable and the wife is not entitled to any maintenance, in view of sub-section (4) of section 125, Cr.PC. 12. In support of the contention that the wife is not entitled to maintenance as she left the matrimonial house without any justifiable ground, the learned counsel for the petitioner has relied upon the decision of the Hon’ble Apex Court in Deb Narayan Haider v. Smt. Anushree Haider, (2003) 11 SCC 303 : AIR 2003 SC 3174 . 13. The learned counsel for the respondent on the other hand has relied upon the decision reported in Md. Akil Ahmad v. State of Bihar, (2016) 0 Supreme (Pat.) 584, wherein the hon'ble Apex Court has lucidly discussed that the challenge to the interim maintenance under section 125, Cr.PC, by Family Court, by a petitioner under section 482, Cr.PC is not maintainable, as the provision under section 125, Cr.PC is confined only before the Family Court under the proceedings of Chapter 9 of the Code. The learned counsel for the respondent has also elaborated the provision of sections 19, 10 and 20 of the Family Courts Act. 14. Obviously the present proceeding is pending before the Family Court pertaining to maintenance under section 125, Cr.PC. The intent and purport of introducing the Family Court Act is to provide prompt and immediate relief to the aggrieved party in matrimonial matters like divorce, restitution of conjugal rights as well as maintenance. While incorporating the provisions in the Special Act, the Legislature in its wisdom has incorporated certain provisions whereby, procedure has been prescribed while adjudicating such petitions. It provides that save and except the procedure prescribed in the Family Court Act, no appeal shall lie from the decree or order passed by the Family Court except due procedure of law as prescribed. It provides that save and except the procedure prescribed in the Family Court Act, no appeal shall lie from the decree or order passed by the Family Court except due procedure of law as prescribed. Even the High Court can examine any matter of its own for the purpose of satisfying as to the correctness and illegality and impropriety of the order but section 19(4) of the Family Court Act made it clear that there can be no such Revision or Appeal against an interlocutory order. 15. In the Md. Akil Ahmad (supra), it has been held that such an interlocutory order is neither amenable to appeal under section 19(1) of the Family Court Act nor revision envisaged under section 19(4) of the Act and under sub-section (5) of section 19 of the Act, puts an express bar regarding the appellate and revisional jurisdiction in the matter of judgment, order or decree of a Family Court, except as provide under section 19 of the Act. It is further held that from the conjoint reading of sections 10 and 20 of the Act, the inherent power of the High Court under section 482, Cr.PC cannot be invoked, against the order granting interim maintenance under section 125, Cr.PC, in as much as the applicability of the provisions of Code of Criminal Procedure is confined only before the Family Court under the proceedings of Chapter 9 of the Code. 16. We are aware that the provision of section 482, Cr.PC can be invoked in certain exceptional circumstances, so as to prevent the abuse of the process and to prevent miscarriage of justice. The application of the provision is an exception not the rule. 17. As has been discussed above, the provisions of section 125, Cr.PC has been incorporated under the Act to protect and prevent the legally married wife of a person from vagrancy so that the family of a distorted relation should not be scattered for want of maintenance. Providing of maintenance in the terms of money or other pecuniary relief, is only aims to provide livelihood to a person which is a bare substance. Keeping in mind the aforesaid provision the Legislatures have by way of amendment has incorporated the provision of interim maintenance which was not in the provision prior to such amendment. 18. Providing of maintenance in the terms of money or other pecuniary relief, is only aims to provide livelihood to a person which is a bare substance. Keeping in mind the aforesaid provision the Legislatures have by way of amendment has incorporated the provision of interim maintenance which was not in the provision prior to such amendment. 18. As per the law, the court can grant such interim maintenance of its own, even not prayed for by the parties, considering the necessity of the person concerned. It is extremely hard to accept that such a proceeding under section 125, Cr.PC, is sought to be quashed by an order of this court which is neither justifiable nor desirable in the fact as well as in law. Till resolution of dispute one has to survive and it will against interest of justice if a legally married wife or a child is allowed to run to hardship, without providing any sort of relief by its counterpart who has a legal obligation to provide such maintenance to his wife. In extreme case of divorce also, the husband is under obligation to make arrangement to provide maintenance in the shape of alimony. Thus, during the subsistence of the marriage and even after the divorce also, the husband is under obligation to provide maintenance to his wife and children, subject to fulfillment of such condition as has been incorporated in section 125, Cr.PC. 19. It is discernable that the petitioner herein has come up before this court soon after filing the written statement, whereas the allegation of his wife as well as of the present petitioner is not yet substantiated and which is only possible only through evidence produced before the trial court. The trial court will decide the authenticity of the allegation and/or entitlement of maintenance of the respondent wife and the child as per law. This court find no illegality or irregularity while awarding the interim maintenance. 20. In view of all, as discussed above, the present petition stands dismissed with a direction to the petitioner to continue to pay the interim maintenance, as directed by the learned Family Court. Further, the petitioner will clear the arrear maintenance in three installments, within three months, if not possible in one. 21. The interim order, passed by this court, stands vacated. 22. Further, the petitioner will clear the arrear maintenance in three installments, within three months, if not possible in one. 21. The interim order, passed by this court, stands vacated. 22. The learned trial court will now proceed with the trial as per law and both parties are directed to appear before the trial court on 23.4.2019. 23. The petition stands disposed of accordingly.