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Jharkhand High Court · body

2019 DIGILAW 685 (JHR)

Khabiruddin Ansari v. The State Of Jharkhand

2019-03-08

DEEPAK ROSHAN

body2019
JUDGMENT Deepak Roshan, J. - This revision application has been filed under section 19(4) of the Family Courts Act, against the judgment dated 01.08.2014, passed by the learned 2. The facts of the case is that the petitioner herein was married with opposite party no.2 on 08.01.2009 as per muslim customs and rites. After a lapse of 2 months of marriage, the 1st wife of the petitioner started to torture the opposite party no.2 and the petitioner along with his 1st wife created pressure on opposite party no.2 to bring Rs. 50,000/-from her father''s house as dowry. The petitioner along with his 1st wife also assaulted the opposite party no.2 during her pregnancy and they have also tried to administer poison to her. However, the opposite party no.2 has given birth to a male child. Finally on 30.11.2011 the petitioner along with his 1st wife has ousted the opposite party no.2 from their house. 3. Pursuant to that, the opposite party no.2 informed the Mahila Police, Pakur, wherein a case was also registered against the petitioner. At the time of grant of bail the petitioner assured before the court that he will take care of and he will ensure bidai of opposite party no.2 within a month after his release. But after getting bail the petitioner never visited opposite parties, rather gave threatening to kill them. The further case of the opposite party no.1 before the learned trial court was that the petitioner is a man of means. He has % bighas of fertile land and he is also involved in business, whereby he earns about Rs. 10,000/- per month and as such the opposite party no.1 claimed Rs. 1,500/- maintenance each for her and her son from the petitioner. 4. The petitioner herein filed a show-cause before the learned trial court, where he has admitted about the marriage however, he has denied the demand of dowry. He has also admitted that he has no issue from his first wife so he has married opposite party no.2 to get a child. The petitioner further stated before the trial court that the opposite party no.1 was herself not ready to stay with the petitioner. It was also stated by him that he had pronounced ''talaque'' on 21.12.2010 thrice time and as such he has given divorce. The petitioner further stated before the trial court that the opposite party no.1 was herself not ready to stay with the petitioner. It was also stated by him that he had pronounced ''talaque'' on 21.12.2010 thrice time and as such he has given divorce. He further stated that he is not entitled to pay maintenance as he has already paid the prompt dower of Rs. 1,500/- to her at the time of marriage. 5. There were four witnesses examined on behalf of the opposite parties and all of them supported the case of opposite party no.2. All of them have also supported the demand of dowry. P.W.-2 and P.W.-3 are independent witnesses, who have supported the case of opposite party no.2. They have categorically deposed that the petitioner has demanded the dowry of Rs. 50,000/- and upon refusal the petitioner has assaulted the opposite party no.2 and ousted them. 6. The petitioner was also examined before the trial court, he admitted the marriage however, he denied the allegation of torture and finally the appellant has divorced her, for which, he has also filed documentary evidence Ext.A, which is an affidavit to show that the petitioner has divorced the opposite party no.2. The learned counsel for the petitioner has argued at length and said that the petitioner is a poor person and he is suffering from hardship. He further argued that the order of maintenance, passed by the learned trial court is not maintainable as the petitioner has divorced her and given prompt dower of Rs. 1,500/- at the time of her marriage and further the petitioner is ready to pay the amount of maintenance for Iddat period @ Rs. 1,500/- per month and as such the opposite party no.2 is not entitled to get maintenance. 7. I have perused the entire records and evidence available on the record. It is admitted fact that opposite party no.2-Safeda Bibi is the legally wedded wife of petitioner. It is admitted fact that opposite party no.3-Aabed Sheikh is minor son of petitioner and opposite party no.2. It is also admitted fact that petitioner has contracted marriage with two ladies and he is living with his 1st wife. It is also admitted fact that O.P. no.2-Safeda is living at her parents house along with her minor child Sakirul Sk.. It is admitted fact that opposite party no.3-Aabed Sheikh is minor son of petitioner and opposite party no.2. It is also admitted fact that petitioner has contracted marriage with two ladies and he is living with his 1st wife. It is also admitted fact that O.P. no.2-Safeda is living at her parents house along with her minor child Sakirul Sk.. It is also admitted fact that a case of section 498A I.P.C. is pending against the petitioner and he is facing the charge at the hand of his own wife the O.P. no-2. Apart from that it is also admitted fact that during the pendency of this case he has not given any maintenance to the opposite party. He has neglected and refused to pay maintenance to them. Petitioner has taken a plea that he has divorced O.P. no.2-Safeda Bibi and she is not entitled to get maintenance form him after divorce and Section 125 Cr.P.C., 1973 has no application in the case of muslim. I find no force in the contention of counsel of petitioner. It is settled law that a muslim is also entitled to get maintenance under section 125 Cr.P.C., 1973 till her re-marriage. Even if the averment is accepted that he has divorced her, in spite of that she is entitled to get the maintenance from the petitioner. 8. The inherent and fundamental principle behind Section 125 Cr.P.C, 1973 is for amelioration of the financial state of affairs as well as mental agony and anguish that a 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. 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. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. 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. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr. P.C, 1973 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. 9. The present case squarely comes under the aforesaid para-meters. The learned trial court, after going through the entire evidence as well as capacity of petitioner''s income, fixed the maintenance and directed for the maintenance of Rs. 1,000/- each to the opposite party no.2 and 3 herein which is very reasonable. I further opine that the contention of the counsel that the petitioner is not entitled to pay maintenance to her wife i.e. opposite party no.2 because Section 125 Cr.P.C, 1973 has no application in case of muslim, is misconceived and there is no force in this contention. It is settled law that a muslim wife is also entitled to get maintenance under Section 125 Cr.P.C, 1973 till her re-marriage. 10. In view of the aforesaid facts and circumstances, provision of law and evidences available on record, I am of the opinion that there is no error in the impugned order which needs any interference from this Court and as stated herein above, the amount of maintenance is more than reasonable. Accordingly, having found no merit in this application, the same is hereby dismissed. As the main criminal revision is dismissed, consequently, I.A. No. 576 of 2016 also stands disposed of.