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2022 DIGILAW 158 (UTT)

Harun Rashid v. Ujma Siddhique

2022-06-24

RAVINDRA MAITHANI

body2022
JUDGMENT : The present revisions is preferred against the order dated 23.07.2016, passed in Criminal Case No. 81 of 2013, Smt. Ujma Siddhique & Another Vs. Harun Rashid, by the court of Family Judge, Nainital (“the case”). By the impugned judgment and order, an application filed by respondent no.1 under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) seeking maintenance for herself and her daughter, respondent no.2, has been allowed. The revisionist has been directed to pay Rs. 15,000/- per month as maintenance to his wife, the respondent no.1, and Rs. 5,000/- per month to his daughter, the respondent no.2. 2. Facts of the case, briefly stated, are as follows. The respondent No.1 filed an application under Section 125 of the Code, seeking maintenance for herself and her daughter from the revisionist. The revisionist and the respondent no.1 were married on 23.07.2011. The respondent no.1 has already lost her parents. After marriage, according to the application, the respondent no.1 was harassed physically and mentally for the demand of dowry. The revisionist was working in Abu Dhabi, United Arab Emirates, as a teacher. When the respondent no.1 gave birth to her daughter, the respondent no.2, she was not taken care of by any of her in-laws. She was ill-treated and expelled from the matrimonial house. She was staying in her parental house. But, again she joined the company of her husband on 16.12.2012. The revisionist returned to his job in Abu Dhabi. The respondent no.1 was further harassed. She was expelled from her matrimonial house on 23.03.2012. She was beaten and abused before her expulsion. Since then, she has been staying in her parental house. According to the application, the revisionist has been earning Rs.80,000/- per month, as his salary, as a Physical Training Instructor in a school and he also earns Rs.20,000/- from his property at Bareilly, whereas, it is submitted that the respondent no. 1 is not able to maintain herself. 3. The revisionist objected to the application and denied all the allegations with regard to harassment and dowry. According to the revisionist, he wanted to take the respondent no. 1 along with him to Abu Dhabi, but she was not ready for it. It is the case of the revisionist that the respondent no.1 has been staying away without any reasonable cause. According to the revisionist, he wanted to take the respondent no. 1 along with him to Abu Dhabi, but she was not ready for it. It is the case of the revisionist that the respondent no.1 has been staying away without any reasonable cause. In his objections, the revisionist denied the allegation of his income as averred by the respondent no.1. According to him, somehow he could maintain his mother and himself. According to the revisionist, the respondent no.1 is able to maintain herself. 4. Both the parties adduced evidence in the case. By the impugned judgment and order, the application under Section 125 of the Code has been allowed and the revisionist has been directed to pay maintenance as stated hereinabove. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the revisionist would submit that the respondent no.1 has been staying away without any reasonable cause; the respondent no.1 has also filed an FIR under Section 498 A IPC, in which after trial, the revisionist has already been acquitted. The court did not find substance in the averments made by the respondent no.1. The averments of cruelty, as stated in the instant application under Section 125 of the Code as well as in the FIR lodged by the respondent no.1, under Section 498 A IPC were identical. Not only this, it is also argued that, in fact, the respondent no.1 has also filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (“the Act”) on the similar grounds. But, it has also been rejected. Copies of both these decisions have been filed, which reveals that such decisions were given in Criminal Crime No. 498 A IPC and under the provisions of the Act in sometime, in the year 2019. 7. Learned counsel for the revisionist also raised the following points:- (i) The revisionist also maintains his mother, but this fact has not been considered at all in the impugned judgment and order, which makes it bad in the eyes of law. (ii) In order to entitle for maintenance, a wife has to show that she has reasons to stay away from her husband. (iii) The proceedings under Section 498A IPC are like regular trial and proceedings under Section 125 of the Code are summary in nature. (iv) The revisionist works in Abu Dhabi. (ii) In order to entitle for maintenance, a wife has to show that she has reasons to stay away from her husband. (iii) The proceedings under Section 498A IPC are like regular trial and proceedings under Section 125 of the Code are summary in nature. (iv) The revisionist works in Abu Dhabi. His income cannot be converted into Indian Rupees. In Abu Dhabi, he lives and spends in the currency, which he earns there. Based on conversion of the currency, the maintenance in the proceedings under Section 125 of the Code cannot be determined. (v) The revisionist has stated that his salary is Rs. 50,000/-, but the court below has wrongly held that it is Rs. 60,000/- per month. 8. In support of his argument, learned counsel for the revisionist has placed reliance in the principles of law, as laid down in the cases of Ms. Bindu Chaudhary Vs. Shri. Deepak Suga, 2016 SCC Online Del 5423, Agriculture Produce Marketing Committee, Bangalore Vs. State of Karnataka and Others, 2022 SCC Online SC 342, Smt. Pooja Gaur Vs. Umit @ Pinky Patel, CRR-1904 of 2015 and Deb Narayan Halder Vs. Anushree Halder (2003) 11 SCC 303 . 9. In the case of Bindu Chaudhary (supra), the Hon’ble Delhi High Court held, “if a person is working in Dubai, he earns in the currency of that country and spends also in that currency. So it is not open to the wife to just convert his income in Indian currency and then seek enhancement.” 10. In the case of Agricultural Produce Marketing Committee, Bangalore (supra), the Hon’ble Supreme Court, inter alia, observed, “the courts should adjudicate on all the issues and give its findings on all the issues and not to pronounce the judgment only on one of the issues.” 11. In the case of Smt. Pooja Gaur (supra), the Hon’ble High Court of Madhya Pradesh, denied maintenance under Section 125 of the Code to the wife considering also the fact that on an application of the wife, the husband has secured acquittal under Section 498 A IPC. 12. In the case of Deb Narayan Halder (supra), under the facts and circumstances, the Hon’ble Court found that the husband did not treat his wife with cruelty. The Hon’ble Supreme Court observed, “The court is not permitted to conjecture and surmise. 12. In the case of Deb Narayan Halder (supra), under the facts and circumstances, the Hon’ble Court found that the husband did not treat his wife with cruelty. The Hon’ble Supreme Court observed, “The court is not permitted to conjecture and surmise. It must base its findings on the evidence produced before it by the parties. The enquiry by the court is restricted to the evidence on record and the case pleaded by the parties.” 13. On the other hand, learned counsel for the respondents would submit that the impugned judgment and order is reasonable; the judgment and order, under Section 498 A IPC is under appeal, in which the revisionist has not been appearing. Learned counsel for the respondents would submit that the revisionist is getting about 3,000/- US Dollars as salary in Abu Dhabi. He would submit that he has got this information on the internet. 14. This is a revision. The scope is quite restricted. This Court cannot, like a court of appeal, appreciate the evidence in its entirety. To the extent of examining correctness, legality and proprietary, the matter has to be examined. 15. It is true that the proceedings under Section 125 of the Code is summary in nature, unlike a criminal trial in which the prosecution has to prove its case beyond reasonable doubt. 16. Reference has been made to the judgment in the Criminal Case No. 405 of 2014, State Vs. Harun Rashid and Others, passed by the court of Judicial Magistrate, Nainital on 08.08.2019, (“498 A Case”). In this case, the revisionist and others have been acquitted of the charge under Sections 498 A, 323, 506 IPC and ¾ of Dowry Prohibition Act, 1961. Reference has also been made to the judgment and order dated 07.09.2019, passed in Misc. Case No.47 of 2014, Smt. Ujma Siddhique Vs. Harun Rashid and Another, by the court of Judicial Magistrate/2nd Additional Civil Judge (Junior Division), Nainital (Case under the Act). By it, an application under Section 12 of the Act filed by the respondent no.1 has been rejected. Admittedly, in both these judgments, there is no reference to the proceedings under Section 125 of the Code, which were decided by the impugned judgment and order. Even otherwise, the standard of proof in a criminal case is quite distinct. It is heavier than what is required under Section 125 of the Code. Admittedly, in both these judgments, there is no reference to the proceedings under Section 125 of the Code, which were decided by the impugned judgment and order. Even otherwise, the standard of proof in a criminal case is quite distinct. It is heavier than what is required under Section 125 of the Code. The judgments under Section 498 A IPC and under the provision of the Act cannot have any effect like the effect of declaration of a civil court. As stated, the proceedings under Section 125 of the Code are summary in nature. 17. In the case of Sethurathinam Pillai Vs. Barbara alias Dolly Sethurathinam (1971) 3 SCC 923 , the Hon’ble Supreme Court, inter alia, observed, “It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy.” 18. In the case of Vimala Vs. Veeraswami, (1991) 2 SCC 375 , the Hon’ble Supreme Court further observed, “Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply food, clothing and shelter to the deserted wife.” 19. In the case of Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit and Another, (1999) 7 SCC 675 , the Hon’ble Supreme Court observed, “the standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 IPC. If the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption.” 20. As stated, even otherwise, in 498 A case and in the case under the Act, reference has not been made to the proceedings under Section 125 of the Code, which had been decided long before the 498 A case and the case under the Act, were decided. 21. It is true that the revisionist has also stated in his objections that with much difficulty, he could maintain his mother and himself. This is what he has stated in his affidavit even in his examination in chief. 21. It is true that the revisionist has also stated in his objections that with much difficulty, he could maintain his mother and himself. This is what he has stated in his affidavit even in his examination in chief. It is also true that categorically, the court, in the impugned judgment and order did not record as to what amount the revisionist spends in maintaining his mother. 22. But fact remains that in Para 15 of the judgment while awarding maintenance, the court has observed that such amount has been fixed keeping in view the income and other circumstances of the parties. Even otherwise, there are a few things, which are to be noted. The court did not convert the foreign currency in the Indian currency. In her application for maintenance, the respondent no.1 claimed that the salary of the respondent is Rs. 80,000/-. In his objections, the revisionist did not disclose his income. He did not write as to what is his salary. He simply denied the averments made by the respondent no.1 and has stated that with much difficulty he could maintain himself and his mother. In his affidavit filed in his examination in chief also, the revisionist did not disclose his income and reiterated his objections. Although in Paragraph 11 of his affidavit, given in his examination in chief, he tried to give some documents reflecting as to what are his expenses. 23. The Court wanted to know from learned counsel for the revisionist as to why the revisionist did not file his salary certificate. This is so because the revisionist had filed documents pertaining to his expenditure there. To it, learned counsel for the revisionist would submit that, at that time, the judgment in the case of Rajnesh vs. Neha and Another Manu/SC/0833/2020 had not come. Therefore, the revisionist was under no obligation to reveal his financial resources & liabilities as required by virtue of directions given by the Hon’ble Supreme Court in the case of Rajnesh (supra). 24. It is true that when the revisionist filed his objections or his affidavit in his examination in chief, directions in the case of Rajnesh (supra) were not in existence. But, then, the revisionist did not disclose his income on his own. He opted to reveal his expenditure. He has not been categorical with the amount he spends on his mother & where his mother stays. But, then, the revisionist did not disclose his income on his own. He opted to reveal his expenditure. He has not been categorical with the amount he spends on his mother & where his mother stays. He has stated in Para 10 of his affidavit filed in his examination in chief that he had filed a suit for restitution of conjugal rights in Bareilly. Who lives in Bareilly? Is it a rented house or does the revisionist own some house there? Who maintains it? The liability was to be spelled out by the revisionist. It is true that the respondent no.1 was to prove her case. She has stated that the revisionist works in Abu Dhabi. She has given tentative salary as per her, which she fixed at Rs. 80,000/-. The revisionist rebutted it in his cross-examination and told that he gets Rs. 50,000/- as per Indian currency. It is the revisionist, who converted the currency. The revisionist did not state as to what is his salary in the currency where he is working? What his standard of life is? How much he spends on himself? Therefore, it cannot be said that for these reasons, the impugned judgment and order is bad. 25. For the want of certificates, any assessment of income would be somehow guess work. The court always tries to reach as near as possible to the exact income of a person. Unfortunately, the courts do not have any formulae by which the salary of a person could be assessed, exactly. 26. In the instant case, the respondent no.1 has stated that the salary of the revisionist is Rs. 80,000/- in Abu Dhabi. The revisionist did not disclose his income in his objection. The revisionist did not disclose his income or his salary in Abu Dhabi in his affidavit given in his examination in chief. He simply denied the averments with regard to his salary. As stated, the revisionist tried to persuade the Court that he spends some amount on his own. He filed certain documents as Annexure 4 to 7 of his affidavit filed in his examination in chief. In his cross-examination, he revealed that he receives Rs. 50,000/-, approximately, as salary. The court fixed his salary as Rs. 60,000/-. It cannot be faulted. The court has fixed the maintenance keeping in view all the circumstances. As stated. He filed certain documents as Annexure 4 to 7 of his affidavit filed in his examination in chief. In his cross-examination, he revealed that he receives Rs. 50,000/-, approximately, as salary. The court fixed his salary as Rs. 60,000/-. It cannot be faulted. The court has fixed the maintenance keeping in view all the circumstances. As stated. The court did not divulge in the minor details as to how much money the revisionist is spending on his mother. But the revisionist also did not divulge as to how much he spends on his mother. The impugned order reveals that the order of maintenance has been passed based on the income and the circumstances in which the parties are in. 27. In view of the foregoing discussion, this Court is of the view that there appears to be nothing wrong, illegal or improper in the impugned judgment. Accordingly, there is no reason to make any interference. Accordingly, the revision deserves to be dismissed. 28. The revision is dismissed.