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2024 DIGILAW 1036 (AP)

Shaik Mahboob Subhani v. Shaik Azima

2024-08-08

V.R.K.KRUPA SAGAR

body2024
ORDER : V. R. K. KRUPA SAGAR, J. A Muslim husband filed this Criminal Revision Case under Sections 397 and 401 of Code of Criminal Procedure (‘Cr.P.C.’) impugning that part of the order of the learned trial Court which has gone against his interest. 2. Respondent No.1 is a woman who claimed maintenance before the Court below and she is stated to be the wife of the revision petitioner. Respondent No.2 is the State. 3. Heard Sri Mekala Ramamurthy, the learned counsel for revision petitioner and Sri Subba Rao Jandhyam, the learned counsel for respondent No.1. 4. A few facts are to be noticed: Smt. Shaik Azima filed a petition under Section 125 Cr.P.C. claiming a monthly maintenance of Rs.10,000/- and for costs and other reliefs. That case was registered as M.C.No.7 of 2018. She made this claim against Sri Shaik Mahaboob Subhani, who is the revision petitioner here. On 14.10.2018 learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole disposed of the said maintenance claim by granting monthly maintenance of Rs.5,000/- to the petitioner therein. At paragraph No.3 of the said order, it is stated that the respondent- Sri Shaik Mahaboob Subhani was served with notice but failed to make appearance by himself or through his counsel on 09.06.2018 and failed to file counter and therefore, he was set ex parte. Thus, it was an ex parte order of maintenance. As could be noticed from paragraph No.9 of the said order, prior to the disposal of this main claim for maintenance, the learned Judge had also granted interim maintenance to the woman. How it must be adjusted is mentioned in the operative portion of the maintenance order. 5. Sri Shaik Mahaboob Subhani filed Crl.M.P.No.353 of 2020 in M.C.No.7 of 2018 before the learned Family Judge praying to set aside the ex parte maintenance order. Smt. Shaik Azima filed her counter. After due hearing, the learned Family Judge by order dated 06.02.2023 allowed that petition and the operative portion of the order available at paragraph No.11 is extracted here: “In the result, the petition will be allowed, subject to payment of arrears of amount of Rs.45,000/- covered under Crl.M.P.No.150 of 2018 on or before 06.03.2023, otherwise the petition shall stand dismissed.” 6. Sri Shaik Mahaboob Subhani is satisfied with the order of setting aside the ex parte order of maintenance but is aggrieved for the other condition prescribed in the said order whereunder he was asked to pay Rs.45,000/-. Challenging that part of the said order, he filed the present revision. Therefore, the only question that falls for consideration here is: “Whether the learned Family Judge committed any legal error in directing this revision petitioner to deposit Rs.45,000/- while setting aside the ex parte order of maintenance?” 7. In the grounds mentioned in the revision and the submissions made by the learned counsel for revision petitioner, it is stated that the marriage between the spouses stood dissolved on 23.09.1990 whereunder he had agreed to pay and actually paid Rs.5,000/- to his wife Smt. Shaik Azima towards her permanent alimony and Rs.10,000/- to their minor child towards his permanent alimony. It is in the above referred circumstances the submission of the learned counsel is that there was no more obligation on part of the revision petitioner to pay any maintenance and the learned Family Judge erred in directing him to pay Rs.45,000/- towards arrear maintenance. 8. As against it, the learned counsel for respondent No.1 submitted that the impugned order is in accordance with law and what is urged here is yet to be established by him by filing necessary counter in M.C.No.7 of 2018 and despite orders from the competent Court, the wife has not been receiving anything and therefore, the just order passed by the Family Judge is sought to be upset on unjust grounds. 9. 9. On considering the rival submissions and the material on record, the following aspects are to be stated: Proviso to Sub-Section (2) of Section 126 Cr.P.C. reads as below: “Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case Ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.” As per the above law, the learned Family Judge was competent to set aside maintenance order passed ex parte if he was shown good cause. The order of the learned Family Judge in setting aside the ex parte order and the legality of it is not questioned here. The above provision further reads that the Court setting aside such an ex parte order of maintenance is empowered to pass an order on such terms as it thinks fit and proper. Now, the learned Family Judge felt that there was his order of interim maintenance and that there was his final order of maintenance and that there were no payments coming from the respondent/husband. In such circumstances, he thought it fit to set aside the ex parte order and in the given circumstances he thought it was just and reasonable on his part to direct him to deposit Rs.45,000/-. Thus, the order impugned was one and that was passed by the competent Court and it was passed as was empowered by the statute permitting the Court to impose terms and thus, there was no wrongful exercise of jurisdiction. From what is seen from the record this Court does not find any illegality, irregularity or impropriety in such an order and therefore, there arise no occasion to interfere with it. The contention of the revision petitioner that he had already paid permanent alimony and his wife was not entitled to claim any more maintenance and that he already married another woman and begot two children are facts to be contested by him in the main claim for maintenance. The contention of the revision petitioner that he had already paid permanent alimony and his wife was not entitled to claim any more maintenance and that he already married another woman and begot two children are facts to be contested by him in the main claim for maintenance. Be it noted, in terms of Section 125 Cr.P.C., a woman is entitled to litigation expenses, claim maintenance and gain maintenance in terms of the facts and law. Therefore, directing the husband or the erstwhile husband to make a deposit of some amount of money cannot be called as irregular exercise of jurisdiction. There are no facts available before the trial Court at that juncture to say that Smt. Shaik Azima was never entitled for any maintenance. In the final event if it is found that she is not entitled for any amount of money and since Rs.45,000/- is to be made by the directions of the Court, whatever requisite order that may be required to be passed is well within the competence of the trial Court and both parties could agitate their grievance at the relevant stage when the main M.C.No.7 of 2018 is dispose of in accordance with law. Therefore, this Court finds no merit in this revision. 10. In the result, this Criminal Revision Case is dismissed. The impugned order dated 06.02.2023 of learned Judge, Family Court-cum-VIII Additional District Judge, Prakasam at Ongole in Crl.M.P.No.353 of 2020 in M.C.No.7 of 2018 stands confirmed. In view of this order, the petitioner is granted time to make deposit that was ordered in the impugned order of the trial Court within three (3) weeks from the date of receipt of a copy of this order by the trial Court. As a sequel, miscellaneous applications pending, if any, shall stand closed.