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2024 DIGILAW 148 (JHR)

Md. Shahabuddin @ Mithu v. Sazia Khatoon

2024-02-12

SANJAY PRASAD

body2024
JUDGMENT : SANJAY PRASAD, J. This Criminal Revision No. 512 of 2020 has been filed on behalf of the petitioner challenging the Judgment dated 10.02.2020 passed by learned Principal Judge, Family Court, Giridih in Original Maintenance No. 33 of 2016 by which the petition filed under Section 125 of the Cr. P.C. by the opposite party no. 1 has been allowed and direction has been given to the petitioner to pay Rs. 15,000/- per month to the opposite party no. 1- wife namely Sazia Khatton as maintenance from the date of filing of an application and Rs. 5,000/- per month to the opposite party no. 2-son namely Md. Oais till October, 2018 (from the date of application i.e. 28.01.2016 to October, 2018 at the age of attaining majority. Petitioner was also directed to pay a sum of Rs. 3,000/- to the Opposite Party no. 1 as Litigation Cost. 2. The case of the opposite party no. 1-wife, in brief, is that she is legally married wife of the respondent and their marriage was solemnized on 24.10.1999 according to Muslim Rites and Customs and after marriage, they lived together at her matrimonial home as husband and wife for some days happily and on 30/10/2000, she blessed with one male child namely Md. Oais and after the birth of her son, she was tortured by the respondent and his family members and demanded Rs. 20.00 lac as dowry, then the petitioner replied that her father had spent Rs. 16.00 lac in her marriage and at present they are unable to give additional dowry, but due to non- fulfillment of the said demand, she was subjected to cruelty mentally and physically. The father and uncle of petitioner tried to pacify the matter and give Rs. 2.00 lac, then the respondent and his family members took the petitioner happy for some days, but again she and her son was tortured by them. It has further been alleged that lastly, the respondent solemnised 2 marriage in the year 2013 with one Jayada Navi @ Bampi and the petitioner was subjected to torture by various means and lastly, October 2015, the petitioner sent her to Mayke and threatened to give Rs. 20.00 lac dowry. It is stated that the petitioner has no source of income and the study of the son of petitioner has stopped due to money. 20.00 lac dowry. It is stated that the petitioner has no source of income and the study of the son of petitioner has stopped due to money. It has been stated that respondent had a Shoe Factory and in New Market, he had two show-room of Sandal and besides this, the father of respondent have a Fruit Market and they earn Rs. 3.00 lac per month and he had two building situated at Kolkata worth Rs. 100.00 lac. However, the Petitioner claimed Rs. 50,000/- per month for herself and her child as maintenance against respondent. 3. The case of the husband-petitioner, in brief, by filing Show Cause that the petition is not maintainable and liable to be rejected. It is an admitted fact that the respondent is the husband of the petitioner no-1 and their marriage was solemnised on 24/10/1999 according to Muslim rites and customs and there was no demand of any dowry and it is also admitted that soon after the inception of marriage, the petitioner attitude towards her marital obligation as a wife was not proper and for which the atmosphere of the house of the respondent was always disturbing. It has further been stated that no logical explanation has been given for the delay in filing the instant complaint, which occurred approximately 18 years ago and hence the petitioner no-1 has purposely tried to build up a false cause of action without any reasonable and cogent grounds. It has further been stated that respondent was all along a responsible husband who took utmost care of both the applicant- O.P. No. 1 and O.P. No. 2 in every circumstances which will be evident from the fact that the petitioner no-2 was admitted in one of the best English Medium School in Kolkata Seventh Day Adventist Sr. Sec. School and even after initiation of the instant matter, the respondent kept on paying the school fees of his son and the demand of dowry is totally false and fabricated and she was not subjected to any cruelty. It has further been stated that petitioner no-1 normally accompanied her son and voluntarily left her matrimonial home on 12/10/2015 to her native place and thereafter being brain washed and in connivance with her family members, she never turned up towards her matrimonial home again and initiated such false and baseless proceedings. It has further been stated that petitioner no-1 normally accompanied her son and voluntarily left her matrimonial home on 12/10/2015 to her native place and thereafter being brain washed and in connivance with her family members, she never turned up towards her matrimonial home again and initiated such false and baseless proceedings. It has further been stated that the husband-petitioner all along wanted and still wants to lead a happy and conjugal life with the petitioner no.1- O.P. No.2 and maintain them with his limited income as he did before and every month on and from January, 2016, the respondent sent a certain amount by way of money order in favour of his wife and he even continued paying the school fees of his son as mentioned before. It has further been stated that respondent is a shoe maker earning of Rs. 8500/- per month. It has further been stated that respondent had filed a suit for restitution of his conjugal rights at Sealdah, Kolkata, West Bengal vide T.S. no-71/2016 in which the wife- O.P. No-1 has already entered into appearance by filing Vakalatnama through her counsel advocate and receipt of an Advocate notice from the part of the respondent which was refused by the petitioner as on 21st and 22nd January, 2016, but the same notice was duly received by the officer-in-charge, Lahiri Police station at Bihar Sarif, Bihar on 23/01/2016, which clearly reflects the intention of the wife- O.P. No. 1 and husband- petitioner all long stressed to lead a happy and conjugal life as a careful husband and in spite of that the wife- O.P. No. 1 never performed her marital duties and obligation with the petitioner and has even involved the minor son in the instant matter thereby depriving him with the best facilities of proper upbringing and education. So, under the above facts and circumstances and hence no maintenance can be granted to them. 4. Heard learned counsel for the petitioner and learned counsel for the State and learned counsel for the O. P. No. 2. 5. It is submitted by the learned Counsel for the petitioner that the impugned Judgment passed by the learned Court below is illegal and arbitrary and not sustainable in the eye of law. It is submitted that the learned Court below has committed grave illegality by allowing the case of the O. P. Nos. 1 and 2. 5. It is submitted by the learned Counsel for the petitioner that the impugned Judgment passed by the learned Court below is illegal and arbitrary and not sustainable in the eye of law. It is submitted that the learned Court below has committed grave illegality by allowing the case of the O. P. Nos. 1 and 2. It is submitted that the learned Court below has wrongly relied upon the evidence of the P.W.-1, Md. Oais, P.W.-2, Md. Mustak Alam and P.W.-3, Sazia Khatoon while passing the impugned judgment. It is submitted that the wife i.e. O. P. 1 has failed to prove the income of the petitioner. However, the petitioner has been saddled to pay the amount of maintenance of Rs. 15,000/- to the O. P. No. 1-wife and Rs. 5,000/- to his son – O. P. No. 2 i.e. Md. Oais till October, 2018. It is submitted that the income of the petitioner has not been proved. It is submitted that the petitioner has led his evidence from the witnesses namely D. W. -1, Md. Akif Asraf and D. W. -2, Md. Shahabuddin and has marked the certain documents as Ext.- A, Ext.-B, Ext.- C, Ext.- D and Ext.- E. It is submitted that the petitioner is getting salary of Rs. 8,500/- per month from his Employer and is working in a Workshop. It is submitted that the petitioner is paying the school fee of his minor son i.e. the O. P. No. 2. However, the learned Court below has not considered this aspect. It is submitted that learned court below has failed to consider the income of the petitioner in absence of the evidence shown by the opposite party no. 1, who is the wife of the petitioner. It is submitted that the present maintenance case, filed by the opposite party no.1, should not have been entertained by the learned Family Court and should have dismissed the same. It is submitted that learned court below ought to have appreciated that the present maintenance case has been filed by opposite party no.1 just to harass the petitioner and to extort money illegally from him. It is submitted that even after entering her appearance in Title Suit No. 71 of 2016 before the Court of learned 2nd Civil Judge (Junior Division) at Sealdah, Kolkata, West Bengal, the opposite party no. It is submitted that even after entering her appearance in Title Suit No. 71 of 2016 before the Court of learned 2nd Civil Judge (Junior Division) at Sealdah, Kolkata, West Bengal, the opposite party no. 1 had not contested the case and as such, the learned Court below has allowed the petition filed by the petitioner ex-parte for the suit for Restitution of Conjugal Rights was passed in favour of the petitioner and against the O. P. No. 1 vide judgment dated 03.05.2018. It is submitted that the Maintenance Case ought to have been dismissed by the learned Principal Judge, Family Court, by considering the case of the petitioner for Restitution of Conjugal Rights allowed by the learned 2nd Civil Judge (Junior Division) at Sealdah, Kolkata, West Bengal. It is submitted that in the said Title Suit No. 71 of 2016, the notice was issued to the opposite party no. 1 and she has appeared by filing Vakalatnama through her Advocate but she did not contest the suit for the reason known to her in spite of several dates being fixed and the appearance has been given by the opposite party no.1. Lastly in the said suit, Title Suit No. 71of 2016 was kept for ex-parte argument on03.05.2018 and after hearing the Advocate for the plaintiff of the said title suit, the ex-parte decree has been passed for restitution of conjugal right and accordingly, the decree was prepared. It is submitted that in spite of several positive steps taken by the petitioner, opposite party no.1, who is the wife of the petitioner, did not take any step for restitution of conjugal right and till date the petitioner wants to keep the opposite party no. 1 with him with full honour and dignity but the opposite party no. 1 is not accepting the offer given by the petitioner (husband) The opposite party no. 2, who is the son of the petitioner, has become major in the year 2018 itself. From the documents, as enclosed in this application, it is crystal clear that for the purpose of school fee etc. to the opposite party no.2, the petitioner was sending money through money order and other means the opposite party no. 1 has not accepted the money-order and that was returned and, therefore, all the receipts, whereby the petitioner has sent the money have also been exhibited in the maintenance case. to the opposite party no.2, the petitioner was sending money through money order and other means the opposite party no. 1 has not accepted the money-order and that was returned and, therefore, all the receipts, whereby the petitioner has sent the money have also been exhibited in the maintenance case. It is submitted that once again the petitioner is willing to keep the opposite party no. 1, who is the wife of the petitioner with him. It is submitted that even the petitioner has paid Rs. 1,00,000/- opposite party no. 1 during conciliation proceeding before the Learned Secretary, DLSA, Giridih vide order dated 12.04.2022 passed by this Court. It is submitted that once the petitioner has obtained decree of restitution of conjugal right in his favour, the maintenance case filed before the learned Court below was fit to be dismissed and as such, the judgment dated 10.02.2020 passed by learned Principal Judge, Family Court, Giridih in Original Maintenance No. 33 of 2016 may be set aside in the interest of justice and this Criminal Revision may be allowed. 6. On the other hand, learned counsel for the State has submitted that the impugned order passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that the petitioner is the husband of the opposite party no. 1 and the marriage between the parties is still admitted. It is submitted that P.W.-1, Md. Oais, P.W.-2, Md. Mustak Alam and P.W.-3, Sazia Khatoon have fully supported the case of the petitioner and as such, no illegality has been committed by the learned Court below by passing the impugned judgment and as such, the criminal revision application may be dismissed. 7. On the other hand, learned counsel for the opposite party no. 1, after adopting the submission of the learned A.P.P., has further submitted that this Criminal Revision Application is devoid of merit. It is submitted that the impugned judgment passed by the learned Court below is fit and proper and no interference is required by this Court. It is submitted that the wife i.e. O.P. No. 1 is legally wedded wife of the petitioner. It is submitted that P.W.- 1, Md. Oais, P.W.-2, Md. Mustak Alam and P.W.-3, Sazia Khatoon have fully supported the case of the opposite party no. 2. It is submitted that evidence DW.-1, Md. It is submitted that the wife i.e. O.P. No. 1 is legally wedded wife of the petitioner. It is submitted that P.W.- 1, Md. Oais, P.W.-2, Md. Mustak Alam and P.W.-3, Sazia Khatoon have fully supported the case of the opposite party no. 2. It is submitted that evidence DW.-1, Md. Akif Asraf and DW.-2 Md. Shahabuddin and documents marked as Ext.-A, B, C and D are not reliable. It is submitted that even after allowing the case of restitution of conjugal right, the learned Court below can pass the order for grant of maintenance. It is submitted that the petitioner has performed 2nd marriage with one another lady Jayada Navi @ Bampi in the year 2013 and thereafter she has been ousted from her matrimonial home and as such, there is no force in the argument of the petitioner to keep his wife i.e. opposite party no. 1 with full honour and dignity. It is submitted that father of the opposite party no. 1 is maintaining her and her son and is also being paid the school fee of her child and as such impugned judgment passed by the learned Court below is fit and proper and as such, this Criminal Revision may be dismissed. 8. Perused the Lower Court Records and considered the submission of both the sides. 9. It transpires from the records that the marriage between the petitioner and the opposite party no. 1 has been solemnized as per the Muslim Customs on 24.10.1999 and she has given birth to a child namely Md. Oais i.e. opposite party no.2 and thus, the marriage between the petitioner and opposite party no. 1 is admitted. 10. It transpires that the wife –opposite party no.1 has filed maintenance case against the petitioner under Section 125 of the Cr. P. C. against the petitioner on 28.01.2016 for grant of maintenance of Rs. 50,000/- per month to her and her son and for education of her son. It is stated in the petition filed under Section 125 of the Cr. P. C. that even after solemnization of nikah between the petitioner and opposite party no.1 on 24.10.1999 upon payment of Rs. 16,00,000/-, opposite party no. 1 was tortured physically and mentally. It has been stated that at the time of Eid in the year 2005, the parents of the opposite party no.2 had given Rs. P. C. that even after solemnization of nikah between the petitioner and opposite party no.1 on 24.10.1999 upon payment of Rs. 16,00,000/-, opposite party no. 1 was tortured physically and mentally. It has been stated that at the time of Eid in the year 2005, the parents of the opposite party no.2 had given Rs. 2,00,000/- cash to the petitioner and opposite party no.1 and petitioner, O.P. No. 1 and O.P. No.2 were living for few days, but again the petitioner has assaulted her and started demanding Rs. 20,00,000/-. 11. It appears that in the year 2014, the petitioner has performed 2nd Nikah with one Jayada Navi @ Bampi and started torturing to the opposite party no. 1 and her son and ultimately the petitioner got ousted the opposite party no.1 from her matrimonial home on 13.10.2013 due to non-fulfillment of demand of Rs. 20,00,000/-. It is asserted that the petitioner is having factory of Sandal and has got two showroom of Sandal in New Market and earning Rs. 3,00,000/- per month. It is also stated that father of the petitioner has got one big fruit shop and is earning Rs. 3,00,000/- and has also got two houses in Kolkata city, which are in value of crores of rupees and as such, Rs. 50,000/- be paid to her. 12. The wife-opposite party no.1 has got examined three (3) witnesses, who are as follows:- (i) P.W.1- Md. Oais i.e the son of the opposite party no. 1 (ii) P.W.2- Md. Mustak Alam i.e. the father of the O. P. No. 1 and (iii) P.W.3- Sazia Khatoon, the opposite party no.1 herself. 13. However, opposite party no.1 has not marked any documents as Exhibits in support of her case. 14. The husband –petitioner has examined two (2) witnesses, who are as follows:- (i) D.W.-1, Md. Akif Asraf and (ii) D.W.-2, Md. Shahabuddin. 15. The petitioner, in support of his claim, has got marked the following Exhibits, which are as follows:- (i) Ext.- A is the scanned copy Certificate issued by the proprietor of Foot Tech Ltd. on 03.01.2017. (ii) Ext.-B and B/1 are the two railway tickets of up and down Train dated 06.01.2016 and 08.01.2016 respectively from Howarh Junction to Bakhtiarpur Junction and Baktiarpur Junction to Hawarh Junction. (iii) Ext.-C is the legal notice sent by the lawyer of the petitioner to the opposite party no. (ii) Ext.-B and B/1 are the two railway tickets of up and down Train dated 06.01.2016 and 08.01.2016 respectively from Howarh Junction to Bakhtiarpur Junction and Baktiarpur Junction to Hawarh Junction. (iii) Ext.-C is the legal notice sent by the lawyer of the petitioner to the opposite party no. 1 on 16.01.2016 asking the opposite party no. 1 to lead conjugal life with the petitioner. (iv) Ext.-D is the scanned copy of the certified copy of money order receipt from January, 2016 to November, 2017. (v) Ext.-E, judgment and decree dated 03.05.2018 passed in TMS No. 71 of 2016 by the learned Civil Judge (Junior Division) Sealdah, Kolkata 16. Thereafter, the learned Court below, after considering the submission of both the sides, had directed to the petitioner to pay Rs. 15,000/- per month to the opposite party no. 1- wife namely Sazia Khatton as maintenance and Rs. 5,000/- per month to the opposite party no. 2-son namely Md. Oais till October, 2018 (from the date of application i.e. 28.01.2016 to October, 2018 at the age of attaining majority. 17. So far as oral evidence is concerned, P.W.-1 is Md. Oais i.e the son of the petitioner and opposite party no. 1. He has stated during his evidence that till 13.10.2015, he along with his mother and father and had remained in Kolkata. However, in the year 2013, his father i.e. the petitioner had performed 2nd marriage with one Jayada Navi @ Bampi and thereafter he started assaulting his mother and the petitioner used to demand Rs. 20,00,000/- from her mother and he used to ask his mother to pay Rs. 20,00,000/- from her father, but it could not be fulfilled by her mother and as such her father ousted her mother to him and his mother and leave at the home of his grand-mother. He admitted that he used to go Seventh Day Adventist Sr. Secondary School, Kolkata, however, his study has been discontinued since last one year after his ouster from the house of his father and presently he is studying in Sadar Alam Memorial School, Biharsharif. He has also stated that his father has got factory of Sandal and is owner of two showrooms and has got two big houses and from which, the petitioner is earning Rs. 3,00,000/- per month, but his mother has no source of income. He has also stated that his father has got factory of Sandal and is owner of two showrooms and has got two big houses and from which, the petitioner is earning Rs. 3,00,000/- per month, but his mother has no source of income. During cross-examination, he has stated that his father used to maintain the expenses of his mother. He denied the suggestion that his father was sending expenses to her mother by money-order, which was refused by her mother. He has shown ignorance regarding pendency of case between his father and mother at Sealdah. However, he has further stated that even if his father want to keep him and his mother in his house, it is dangerous for their life. 18. Thus, from securitizing the evidence of P.W.-1, Md. Oais, it is evident that he is the son of the petitioner and opposite party no.1 and is a minor boy, aged about 15 years and he was discharged on 04.12.2017 after his evidence by the learned Principal Judge, Family Court, Giridih and as such, the evidence of P.W.-1 can be relied to the extent of relationship between the petitioner and the opposite party no.1 as husband and wife and till that date, ex-parte decree of divorce was not passed. 19. P.W.2- Md. Mustak Alam i.e. the father of the O. P. No. 1 and has stated that marriage between his daughter Sazia Khatoon was performed with the petitioner- Md. Shahabuddin i.e. her husband on 24.10.1999 and she has given birth to a male child on 30.10.2000 namely Md. Oais. After six moths, the petitioner has started demanding Rs. 2,00,000/- and he managed to pay him Rs. 2,00,000/- cash at the time of Eid and after keeping his daughter for few days, he has started assaulting her daughter and has ousted her from matrimonial home in the year 2014. He further stated that the petitioner has performed 2nd marriage with one Jayada Navi @ Bampi in the year 2013 and thereafter he had brought her daughter to his house in the year 2015. He further stated that his grand-son is studying in Class-IX. He further stated that his son in-law has got two factory and two showroom of Shoe and Sandal and apart from his he has got one fruit market and he has also got atleast 3-4 flats and as per his knowledge, the petitioner is earing Rs. He further stated that his grand-son is studying in Class-IX. He further stated that his son in-law has got two factory and two showroom of Shoe and Sandal and apart from his he has got one fruit market and he has also got atleast 3-4 flats and as per his knowledge, the petitioner is earing Rs. 3 to 3.5 lakh per months and as such, his daughter and his grandson are required Rs. 50,000/- per month as maintenance. During cross-examination, he has stated that he will not sent his daughter to the house of the petitioner, even if he is ready to keep her with full honour and dignity. He admitted that his son12 law has maintained his daughter and Nati from the year 2000 to 2015. However, he also admitted the pendency of a case of restitution of conjugal right by his son in-law in Sealdah, but he has not aware that his daughter has appeared in the said case or not. He has shown ignorance for not receiving the amount send by his son in-law from January 2016 to January, 2017. He denied the suggestion that husband –petitioner is an employee of Foot Tech shop and is earning Rs. 8,500/- per month. This witness was discharged after cross-examination on 23.10.2017. Thus, from scrutinizing the evidence of P.W.2- Md. Mustak Alam, it is evident that he has fully supported the case of his daughter i.e. the O. P. No. 1 and has stated that the petitioner has ousted her from her matrimonial home since the year 2015 after performing 2nd marriage with one Javida Navi @ Bampi. However, the P.W.-2 could not say the details of factory and showrooms of the petitioner and had not filed any documents of the income of the petitioner. However, from the evidence of P.W.- 2, relationship between the parties is admitted. 20. P.W.3- Sazia Khatoon, the opposite party no.1 herself and she has stated that has stated that her marriage was solemnized with the petitioner- Md. Shahabuddin i.e. her husband on 24.10.1999 and she has given birth to a male child on 30.10.2000 namely Md. Oais, however, after six moths, the petitioner and his mother have started demanding Rs. 2,00,000/- and her parents managed to pay him Rs. Shahabuddin i.e. her husband on 24.10.1999 and she has given birth to a male child on 30.10.2000 namely Md. Oais, however, after six moths, the petitioner and his mother have started demanding Rs. 2,00,000/- and her parents managed to pay him Rs. 2,00,000/- cash at the time of Eid and after keeping her for few days, he has started assaulting her and has ousted her from matrimonial home. She further stated that the petitioner has performed 2nd marriage with one Javida Navi @ Bampi n the year 2013 and thereafter he had brought her to the house of his father since 12.10.2015. She further stated that her husband has got two showroom of sandal at New Market and one factory besides his house and apart from this he has got one fruit market and the petitioner is earning Rs. 4.00 to 5.00 lakh per month and There are two flats in the name of her mother in-law and as such, she and her son are required Rs. 50,000/- per month as maintenance. However, during her cross-examination, she has stated that marriage was performed after proper ascertaining each other. She has stated that at present, she is living at Pihara i.e. her Maike and the house of his elder brother is in Bihar Sharif. He has admitted that her son Md. Oais was earlier studying in Seventh Day Adventist Sr. Secondary School, at Park Street up to Class-9 in the English Medium and his education expenses were born by his father. She has further stated that she has not instituted any complaint before local police station or any officer for demanding Rs. 20 lakh from her husband, but she has denied receipt of any letter through the counsel by the petitioner to join the company of her husband with her son on 16.01.2016. She has further admitted in para-21 of cross-examination that her husband and her father inlaw had gone to Bihar Sharif on 06.01.2016 for taking her, but she had refused to accompany her as her husband was not willing to leave the 2nd wife as her pre condition and she does not want to live with the petitioner in the presence of his 2nd wife, but her husband has not shown tickets for taking her and her son. She has also admitted that there is no documentary evidence of torture of assaulting between 1999 to 2015. She has also admitted that there is no documentary evidence of torture of assaulting between 1999 to 2015. She further admitted that her husband had instituted a case in Sealdah being T. S. No. 71 of 2016 for restitution of conjugal right and she has appeared in that case. However, she has further stated that her husband used to send Rs. 1,000/- per month from January, 2016 for expenditure, but she refused to take that amount as the amount was very little even her husband had not sent Rs. 2,000/- and cloth at the time of Eid in the year 2016. However, she has denied for having received of letter sent by the lawyer of her husband and as such, she instituted the present case. She has further stated that she and her son will go to her husband, if he takes her with full honour and dignity, but only after giving divorce to his 2nd wife. She has also admitted that her son is studying in Class-IX in the School at Bihar Sharif. He has also admitted that she has not filed any documentary paper for shop and factory of her husband and she is not in position to file the same. She has denied the suggestion that her husband is doing job as Salesman in Food Tech Company and is earning Rs. 8500/- per month. This witness has been discharged after crossexamination on 05.08.2017. 21. Thus, from perusal of the evidence of P.W.-3 i.e. wife – opposite party no.1, it is evident that she has fully supported her case in the year 2015 as her husband is not maintaining her and her son, who are presently living in Bihar Sharif in the house of her brother. Although she has insisted that she will accompany her husband to his house only after her husband give divorce to 2nd wife. She has further stated that reason for refusal of money order of Rs. 1,000/- sent by her husband as the amount was much less to maintain her and her son. From perusal of Ext.-C, which are money order receipt from January, 2016 to November, 2016, it would reveal that certain amount were being sent by petitioner-husband of the opposite party no.1 i.e. wife, but no such amount is mentioned. 1,000/- sent by her husband as the amount was much less to maintain her and her son. From perusal of Ext.-C, which are money order receipt from January, 2016 to November, 2016, it would reveal that certain amount were being sent by petitioner-husband of the opposite party no.1 i.e. wife, but no such amount is mentioned. During show cause filed on behalf of the petitioner on 07.01.2017, it would appear that the petitioner-husband has not mentioned the amount, which is used to send to his wife per month, rather the petitioner has taken plea that he is a shoe maker and is earning Rs. 8500/- per month and he has filed suit for restitution of conjugal right bearing T. S. No. 71 of 2016. Even the petitioner has not denied the assertion of O. P. No. 1 performing 2nd marriage with Jayada Navi @ Bampi. 22. So far as evidence of the petitioner is concerned, D.W.-1 is Md. Akif Ashraf, who is the owner of a shoe and sand company namely Foot Tech and has stated during his evidence that the petitioner is working in his workshop and he is also paying him Rs. 8500/- per month towards his salary. He has further proved the certificate issued by him as the proprietor of Foot Tech, which has been marked as Ext.-A. During cross-examination, he has stated that both he and the petitioner are living in Mofidul Islam Lane, but he does not know about his family matter and about children of the petitioner- Md. Shahabuddin. He has further stated that he has come to give evidence on information of Md. Shahabuddin i.e. the petitioner for stating the correct fact for filing certificate. He has stated that 8-12 staffs are working in his workshop, but his workshop is not registered with the Labour Department. However, he has own stated that there is a casual labour and there is no deduction of gratuity of the staff. He has further admitted that GST, CST and Registration Number is not mentioned in the certificate (i.e. Ext.-A filed before the learned Court below). He has shown ignorance about two showrooms of Sandal and one factory of Sandal in the name of Md. Shahabuddin i.e. the petitioner and has also shown ignorance of Fruit shop and is earning more than Rs. 3,00,000/- per month by the petitioner. D.W.-1 has discharged after his crossexamination on 16.09.2017. 23. He has shown ignorance about two showrooms of Sandal and one factory of Sandal in the name of Md. Shahabuddin i.e. the petitioner and has also shown ignorance of Fruit shop and is earning more than Rs. 3,00,000/- per month by the petitioner. D.W.-1 has discharged after his crossexamination on 16.09.2017. 23. Thus, from scrutinizing the evidence of D.W.-1, Md. Akif Ashraf is the evident that he has come before this Court under the influence of husband-petitioner and although he has claimed to be an Employer of the husband-petitioner and paying Rs. 8500/- per month, but GST, CST and Registration Number of his shop has not been mentioned in the certificate marked as Ext.-A, which was issued by him in the capacity of proprietorship of Foot Tech. Thus, the evidence of D.W.-1 cannot be relied upon and learned Court below has committed no illegality by rejecting the evidence of D.W.-1. 24. D.W.-2 is Md. Shahabuddin i.e. the petitioner himself and has stated during his evidence that his marriage with Sazia Khatoon was solemnized on 24.10.1999 by faith of Islamic rites and rituals and no dowry was demanded from his side and after marriage, they lived together as a husband and wife and blessed with one male child in the year 2000 namely Md. Oais and he is styding at Kolkata at Park Street in a Seven days School and all the educational expenses were beard by him. He further stated that on 12/10/2015, Sazia went with her father with his permission to her naihar for 15 days and when she did not return, then he talked with his father-in- law and went to her native place at Nawada Biharsarif, but she had not gone to him and told that he came with his parents, then Bidai took place and on 06/01/2016, he alongwith his father went to Nawada Biharsarif for Bidai and he had two Railway Tickets, but she did not come with him. He further identified to Railway tickets as Ext.-B and B/1 respectively. He further identified to Railway tickets as Ext.-B and B/1 respectively. He further stated that he tried his level best for bringing the O.P. No.1, but she did not come, then he sent Advocate notice on 19/01/2016 for his Bidai by speed post, but no reply was given, then he filed a suit for restitution of his conjugal rites at Sealdah court bearing no- 71/16, which is still pending and Sazia had appeared in that very case and he had filed Advocate Notice and receipt in the court, which is in six pages which is marked as Ext-C. He further stated that from January, 2016 to January, 2017, he send Rs. 1000/- per month to Sazia as maintenance, but she refused to take the said amount and the postal receipts marked as Ext-D. He further stated that his 2nd marriage was solemnised in April 2014 and he solemnised the 2nd marriage by the oral permission of Sazia and his both wives live happily with him and he further stated that he is working in Foot Tech company and he is getting salary of Rs. 8500/- per month. He denied that he demanded dowry and his father-in-law had given additional dowry of Rs. 2.00 lac and he assaulted the petitioner and ousted her from matrimonial house. He further stated that the claim of Wife- O.P. No.1 as Rs. 50,000/- per month is false and he is unable to pay the said amount to her and he has no shop in his house and he is still ready to keep the Wife- O.P. No.1 and his child with him. He further stated that he solemnized 2 marriage, for take care of his old mother and one paralyzed brother. 25. During cross-examination D.W.-2 is Md. Shahabuddin stated that the distance of school is 1 km from his house and the School fee is Rs. 2200 per month and he denied that the school is at a distance of 10 km and he also denied that he had paid Rs. 30,000 for traveling charges of his son. He further stated that he had a rented house at Kolkata and the rent was Rs. 200, but it is not believable and he had not any house at Kolkata in the name of his father or mother. 30,000 for traveling charges of his son. He further stated that he had a rented house at Kolkata and the rent was Rs. 200, but it is not believable and he had not any house at Kolkata in the name of his father or mother. He further stated that he is doing work in Foot tech company and he is getting cash salary and he had not paid any paper regarding salary and he had not getting gratuity and group bima and he had not remember the registration no. of Foot Tech company. He further stated that he had no knowledge hat after the filing of this case, he filed the case as TMS-71/16 or not He further stated that all the amount paid through Money-order by him to Sazia, but she did not take the said amount and all the amount was returned to him. He further denied that he expanses Rs. 1.00 lac per month for maintenance of his wife and child and he also denied that he separately maintained his 2nd wife. He further denied that he had a factory of shoes and in New Market, he had two showrooms of Sandles, he had fruit market and two houses at Kolkata and his monthly income is Rs. 3.00 per month and he denied everything. He further stated that he had one paralyzed brother namely Md. Humaui. He further denied that his brother Md. Humaui had married with one Bengali girl and he had his own business and he also denied that his mother is in a good condition and she is not ill. He further stated that he never visited for Bidai at village Pihara, Distt-Giridih. He further denied that the naihar of Sazia is at Pihara not in Biharsarif and Sazia is resided at Pihara. He has denied the suggestion that he used to spend Rs. 1,00,000/- in the maintenance of his wife and children and for his education. However, he has admitted that there is no entry of his name in the Labour Department for working in Foot Tech. He has also admitted that he cannot file any certificate of salary for working in Foot Tech and is getting cash amount in salary. D.W.-2 was discharged after his cross-examination on 16.12.2017. 26. Thus, after scrutinizing the evidence of D.W.-2, Md. He has also admitted that he cannot file any certificate of salary for working in Foot Tech and is getting cash amount in salary. D.W.-2 was discharged after his cross-examination on 16.12.2017. 26. Thus, after scrutinizing the evidence of D.W.-2, Md. Shahabuddin i.e.the petitioner, it is evident that he has denied the claim of opposite party no. 1 i.e. the wife that he was making his good expenditure in bringing the Welfare of his child by sending him in Seventh Day Adventist Sr. Secondary School, at Park Street and its transportation charges was Rs. 30,000/- per month. Although, it is not explained that it is yearly or monthly, but it is transportation charges. On the one hand, the petitioner has admitted his son in English Medium School in Kolkata i.e. Seventh Day Adventist Sr. Secondary School, at Park Street and as such, assertion wife-opposite party no.1 can be taken into consideration that the petitioner was making huge expenditure for education of his son. However, the petitioner has admitted during his evidence at para 20 that he has residential building in Kolkata city, but it is on name of his mother and he is getting rent of approx. Rs. 200/- which cannot be believed. Thus, the evidence of the petitioner shows that he is supressing the real facts before the learned Court below. Although P.W.-3 i.e. O. P. No. 1 i.e. the wife has asserted during her evidence in para -8 that there are two Flats in the name of her mother in-law in Kolkata. 27. Normally in the maintenance case, it is difficult that wife to give actual flat number, area, muhulla of the work place or the factory of her husband or her parents, but she has emphatically stated that her husband has two Showrooms at New Market and there is one factory near his house. Hence mere flat denial on the part of the petitioner for not having any property in his name of in the name of his father or mother has got no significance. Even the denial of the petitioner that his own brother has married with one Bengali girl and is doing his own business separately is not sufficient to disprove the case of wife to some extent. Even the denial of the petitioner that his own brother has married with one Bengali girl and is doing his own business separately is not sufficient to disprove the case of wife to some extent. No doubt that the petitioner has offered to keep his wife and son with full honour and dignity only in his show cause, but during his evidence in the learned Court below and even during cross-examination of the wife-O. P. No. 1 i.e the P.W.-3 before the learned Court below, but also before this Court by making averments in criminal revision application. However, his wife i.e. O. P. No. 1 has refused to accompany with him in view of the fact that he has performed 2nd marriage with Jayada Navi @ Bampi. From the assertion of the petitioner that there is provision of 2nd marriage or more than one marriage in Muslim Law is permissible, dignity of the wife cannot be compromised as the petitioner himself admitted before the learned Court blow during his show cause and even during his evidence was examined as D.W.-2 before learned Court below and also in the averment made in this Criminal Revision Application. This Court is of the view that if there is provision of more than one marriage in Muslim Custom, but it is equally inferred that he is obliged and bound to maintain his both wife and opposite party no.1 is the first wife of this petitioner, who had been married to him on 24.10.1999. 28. Even as per provision of Section 125, CrPC, a wife can refuse to live with the husband if her husband has performed 2nd marriage. 29. It transpires from the Lower Court Records that although the evidence of the parties were finally closed and D.W.-2 was finally discharged on 18.11.2017, but the case was kept for evidence of the petitioner on 16.12.2017 and the evidence of the was closed on 14.02.2018 and the case was fixed for argument on 27.02.2018. Thereafter the matter was fixed for argument on 27.03.2018 and on 02.05.2018 and partial argument was advanced on behalf of the opposite party no. -1 i.e. wife on 02.06.2018 and the case was fixed for further argument on 23.06.2018. Thereafter the matter was fixed for argument on 27.03.2018 and on 02.05.2018 and partial argument was advanced on behalf of the opposite party no. -1 i.e. wife on 02.06.2018 and the case was fixed for further argument on 23.06.2018. However, on 23.06.2018, certified copy of the judgment and decree of T. S. No. 71 of 2016 was marked as Ext.-E by the learned Court below as a public document on filing of a petition by the learned Court below. 30. It transpires that on 23.06.2018, the wife has filed a petition to call for the Credit Card of the husband-petitioner of ICICI Bank and the case is remained pending on 21.07.2018, 30.07.2018 and 06.08.2018 and ultimately on 18.08.2018, the application of the wife was rejected and the case was fixed for final argument on 07.09.2018. 31. It also transpires from the Lower Court Records that the efforts were made for conciliation between both the sides by the learned Court below before the Mediation Centre, but it was not successful and ultimately the impugned judgment was passed on 16.02.2020. 32. From perusal of Ext. –E, which is certified copy of the Judgment and decree dated 03.05.2018 passed in T. S. No. 71 of 2016 passed by the learned 2nd Civil Judge (Junior Division), Sealdah, it reveals that ex-parte judgment was passed, which runs in two pages only and in which first page case of the petitioner has been mentioned and the name of the document in page-1 and 2 and the judgment has been passed in the 2nd page itself in four paragraph, which read as follows:- “Considered all the oral and documentary evidences. Considering all the evidences and other materials on record, I find no reason to disbelieve the unchallenged testimony of the plaintiff. Thus, the Court is satisfied that the plaintiff has been able to prove his case. Thus, the plaintiff is entitled to get a decree as has been prayed for.” Thus in order passed by the learned 2nd Civil Judge (Junior Division), Sealdah is non speaking. 33. It further reveals that even from the impugned judgment that the petitioner has supressed the fact of contesting Maintenance Case No. 33 of 2016 filed by the opposite party no. 33. It further reveals that even from the impugned judgment that the petitioner has supressed the fact of contesting Maintenance Case No. 33 of 2016 filed by the opposite party no. 1 against the petitioner before the learned Principal Judge, Family Court, Giridih, otherwise, learned 2nd Civil Judge (Junior Division), Sealdah, would mentioned the said fact in its impugned judgment and decree. 34. Thus, the judgment obtained by suppression of material fact is fraud and not binding upon the wife and son i.e. O. P. No. 1 and O. P. No. 2 as the learned Court below had not taken care to the effect that in absence of information of appearance of the wife, some steps should have been taken to provide legal aid to the wife to protect her interest. 35. The petitioner has sent legal notice to his wife through counsel in January, 2016 itself to join his company and it clearly shows that the petitioner is a smart person and well aware of the consequences of the legal proceeding and as such, after filing of Maintenance Case by his wife i.e. O. P. No. 1 before the learned Principal Judge, Family Court, Giridih and he has instituted T. S. No. 71 of 2016 before the Court of Sealdah, which was finally disposed by the learned 2nd Civil Judge (Junior Division), Sealdah on 03.05.2018. It further transpires that evidence of both the sides were closed on 14.02.2018 and the case was fixed for argument and as such, the proceeding initiated by the O. P. No. 1- wife on 28.01.2016 was the first proceeding, which was instituted as O.M. No. 33 of 2016 by the wife against the petitioner whereas the petitioner had instituted T. S. No. 71 of 2016. It transpires that Ext.-C i.e. the legal notice sent by one Md. Tawqueer, Advocate on behalf of the petitioner to the wife-O. P. No. 1 asking her to join the company of her husband along with her minor child, otherwise the petitioner has to reluctantly take legal aid against her in competent forum. It is surprising that Ext.-C sending along with the copy of School of the child and Train Tickets and Copy to the Officer In-charge, Beniapukur Police Station, Kolkata and The Officer In-charge, Lahiri Police Station, Katra, Bihar Sharif Pin Cod- 803101, District-Nalandah, State-Bihar. 36. It is surprising that Ext.-C sending along with the copy of School of the child and Train Tickets and Copy to the Officer In-charge, Beniapukur Police Station, Kolkata and The Officer In-charge, Lahiri Police Station, Katra, Bihar Sharif Pin Cod- 803101, District-Nalandah, State-Bihar. 36. Thus, the conduct of the petitioner shows that the petitioner is a smart person and is well aware of the consequences of the legal proceeding and he has set up his defence by way of sending notice to the wife-O. P. No. 1 and given copy to the concerned police station at Kolkata and also at Bihar Sharif and this act cannot be anticipated earlier by common person, who is merely earing Rs. 8500/- per month only. 37. This Court cannot compel the petitioner to look into the condition of his wife-O. P. No. 1 to remaining in his house, but this Court is of the view that refusal of the wife-O. P. No. 1 is fair and sufficient for not presiding in the house of the petitioner in the presence of the 2nd wife. Even the petitioner cannot compel his wife-O. P. No. 1 to live in his house with the 2nd wife namely Jayada Navi @ Bampi. Therefore, in the view of the above more filing of T. S. No. 71 of 2016 in the year 2016 and after passing the judgment and decree dated 03.05.2018 passed by learned 2nd Civil Judge (Junior Division), Sealdah. The petitioner cannot refuse to pay maintenance amount to his wife and child as his wife i.e. O. P. No. 1 along with his son had instated a Maintenance Case No. 33 of 2016 against the petitioner on 28.01.2016 whereas the petitioner has filed the Title Suit No. 71 of 2016 only after having knowledge of Maintenance Case No. 33 of 2016. Thus, the judgment and decree passed by the learned 2nd Civil Judge (Junior Division), Sealdah cannot stand in the way of the order granting maintenance amount to the O. P. No. 1-wife and O. P. No. 2-son. 38. Thus, this Court below has correctly come to the conclusion that wife –O. P. No. 1 will be entitled to maintenance from the date of filing of application and the learned Court blow has correctly held that O. P. No. 2, her son will be entitled for maintenance till he attains the age of majority i.e. October, 2018. 39. 38. Thus, this Court below has correctly come to the conclusion that wife –O. P. No. 1 will be entitled to maintenance from the date of filing of application and the learned Court blow has correctly held that O. P. No. 2, her son will be entitled for maintenance till he attains the age of majority i.e. October, 2018. 39. The petitioner has admitted during his evidence while examined as D.W.-2 that he has paying even Rs. 2,200/- per month in the school of his son. 40. Thus, the person having income of Rs. 8500/- will not in a position to pay tuition fee of Rs. 2200/- to his child. Even if the evidence of D.W.-2 is taken into consideration in this aspect only, he admitted that he is paying rent in the house of two rooms. However, he has not shown any document for payment of his house rent. It is also unbelievable that in the city like Kolkata, two rooms will be available on mere payment of Rs. 200/- per month in absence of any rent receipt. 41. It has been held in the case of Sunita Kachwaha and Others vs Anil Kachwaha reported in 2014 (16) SCC 715 at para 7, 8 and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.” 42. It has been held in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy reported in 2017 Vol (14) SCC 200 at paragraph 15, as follows:- “Para 15:- The review petition under Order 47 Rule 1 CPC came to be filed by the respondent wife pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge before this Court. As pointed out by the High Court, in February 2015, the appellant husband was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs 12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs 95.527. Following Kulbhushan Kumar v. Raj Kumari, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Since in February 2016, the net salary of the husband was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount. However, since the appellant has also got married second time and has a child from the second marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of Rs 23.000 to Rs 20.000 per month as maintenance to the respondent wife and son. 43. It has been held in the case of Dr. Swapan Kumar Banerjee Vs. State of West Bengal and Another reported in 2020 (19) SCC 342 , that even a wife who has been divorced on ground of desertion is entitled to claimed maintenance and it has been held at para 5 and 7 which are as follows:- “Para 5. Thereafter, in Rohtash Singh v. Ramendri this Court took a similar view: (SCCP 184, para 11) 11. The learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights. Duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her." “Para 7. No doubt, as urged by Mr Debal Banerjee. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her." “Para 7. No doubt, as urged by Mr Debal Banerjee. Explanation II to Section 125 9 CrPC by deeming fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her husband can still claim maintenance under Section 125 CrPC. The question is how we should read the provisions of sub-section (4) in this regard, especially when we deal with those women, against whom a decree for divorce has been obtained on the ground that they have deserted their husband. Once the relationship of marriage comes to an end, the woman obviously is not under any obligation to live with her former husband. The deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the exhusband. The husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that event after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr Debal Banerjee.” 44. It has been held in the case of Abhilasha Versus Parkash and Ors. reported in (2021) 13 SCC 99 , at para 27 to 31, which are as follows:- “Para-27:- Muslim Law also recognises the obligation of father to maintain his daughters until they are married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held: (SCC p. 196) “40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. He is also bound to maintain his daughters until they are married. [See: Mulla's Principles of Mohammedan Law (19th Edn.) page 300]” Para-28:- Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property. Para-29:- Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20. Para-30:- We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233 , which was a case under Section 125 Cr.P.C. A Muslim wife with her two daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The trial court allowed the maintenance to the wife and children from her husband. The husband after divorcing the wife filed application in the trial court seeking modification of the order in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The trial court modified the order insofar as the grant of maintenance of wife was concerned but maintained the order of maintenance to each of the three minor children. The husband challenged the order by means of revision, which was dismissed by the Revisional Court. An application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court accepted the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a Muslim wife is entitled to claim maintenance from her previous husband for her children only for a period of two years from the date of birth of the child concerned. The High Court held that minor children were not entitled for maintenance under Section 125, Cr.P.C. A special leave to appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed to be defeated except through clear provisions of a statute. This Court held that there is no conflict between the two provisions. Para-31:- This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations made by this Court in paragraph 7 of the above judgment: (Noor Saba Khatoon Case, SCC pp. 238-39) “7....Under Section 125, CrPC the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his absolute obligation to provide for them. Insofar as children born of Muslim parents are concerned there is nothing in Section 125 CrPC which exempts a Muslim father from his obligation to maintain the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 CrPC to the children only on the ground that they are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC, cannot be allowed to be defeated except through clear provisions of a statute. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. We do not find manifestation of any such intention in the 1986 Act to take away the independent rights of the children to claim maintenance under Section 125 CrPC where they are minor and are unable to maintain themselves. A Muslim father's obligation, like that of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is absolute and is not at all affected by Section 3 (1)(b) of the 1986 Act.” (emphasis in original) 45. It has been held in the case of Rajneesh Vs. Neha and Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- “Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7 ; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290] Para-79:- In Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712 this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it. Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is ablebodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339] Para-112:- In Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51, the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13) “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.” Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.” 46. It has been held in Kiran Tomar & Ors Vs State of Utter Pradesh & Another reported in 2022 live law (SC) 904 at paragraph 10 & 11, as follows:- “Para-10:- On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met.” “Para 11:- In this view of the matter, the High Court was not justified in setting aside the order of the Family Court on the basis of the reasoning which has been extracted above in the earlier part of this order.” 47. It is well settled that the husband is well earning person that he is entitled to maintain his wife and children. Although the wife has failed to prove the documentary evidence of the income of the petitioner. It is well settled that the husband is well earning person that he is entitled to maintain his wife and children. Although the wife has failed to prove the documentary evidence of the income of the petitioner. However, the fact cannot be denied that she has remained with this petitioner in Kolkata for about 15 years and as such she is aware of his social status and the his work place. 48. So far as the maintenance amount of Rs. 5,000/- per month to the opposite party no. 2-son of the petitioner namely Md. Oais is concerned the same requires no interference as the petitioner has himself admitted in his show cause and during his evidence while examined as D.W.-2 that he had got admitted his son in one of the best English and as such amount of Rs. 5,000/- per month is sufficient and proper. However, it is obligatory duty of the father to take care of education and social needs of his son in view of the judgment reported in the case of Rajneesh Vs. Neha reported in 2021 (2) SCC 324 . 49. So far as the maintenance of Rs. 15,000/- per month to the opposite party no. 1- wife namely Sazia Khatton is concerned, though the same appears to be from certain higher side, but the leaned Court below has considered that the petitioner is having two showroom of Shoe and Sandal at New Market and one shoe factory and has got two storeyed building situated at Kolkata worth of Rs. 100.00 lac and the husband is earning Rs. 3,00,000/- per month, the maintenance amount of Rs. 15,000/- to his wife i.e. O. P. No. 1 is not so excessive. 50. After giving anxious consideration and on the facts and in the circumstances of this Court and also in view of the fact that it is own admission of the petitioner for having married with one any another lady in the year 2014, this Court is of the view that maintenance of Rs. 15,000/- per month to the opposite party no. 1- wife namely Sazia Khatton as maintenance and Rs. 5,000/- per month to the opposite party no. 2-son namely Md. Oais till October, 2018 (from the date of application i.e. 28.01.2016 to October, 2018 at the age of attaining majority) requires no interference by this Court. 51. However, amount of Rs. 15,000/- per month to the opposite party no. 1- wife namely Sazia Khatton as maintenance and Rs. 5,000/- per month to the opposite party no. 2-son namely Md. Oais till October, 2018 (from the date of application i.e. 28.01.2016 to October, 2018 at the age of attaining majority) requires no interference by this Court. 51. However, amount of Rs. 1,00,000/- paid by the petitioner to the O. P. No. 1 by way of Demand Draft shall be adjusted in the maintenance amount passed by the learned Court below. 52. Accordingly, the Criminal Revision No. 512 of 2020 is dismissed.