Aashiq Feroz Ahangar @APPELLANT@Hash Shayista Akhtar

Learned Judicial Magistrate 1st Class, Bijbehara, in terms of order dated 30 th January, 2018, in case titled "Shayista Akhter Vs. Aashiq Feroz Ahangar" has ordered payment of an amount of Rs,9000/ per month as maintenance in favour of the respondent herein. The respondent herein had filed a petition before said Court for grant of maintenance under Section 488 of Cr. P. C pleading therein that she is legally wedded wife of the petitioner herein and they were married on 17th of July, 2011. The petitioner, according to her had neglected to maintain her and he having paid no heed to the requests to resume the matrimonial life, impelled the respondent to file the application.

The petitioner herein appeared before the learned trial court and submitted his objections wherein contentions were raised that the respondent herein on 20.06.2012 left his company and so she was not entitled to maintenance. It was further pleaded in the objections that the petitioner herein is ready and willing to maintain the petitioner provided she resumes relationship.

The parties were directed to lead evidence, which has been, accordingly led. The petitioner herein also had submitted that he is having a limited income of Rs.12000. The income which he was having as a bank employee is untrue. It was further stated that the J&K Bank had terminated him from service and he was an employee of JAMKASH Automobiles. The learned Magistrate after going through the respective pleadings and the evidence on record, turned down the contention raised on behalf of the petitioner herein regarding the quantum of his income with the observation that he was not able to produce any tangible evidence which could led the Court to infer that he was having the income only to the extent pleaded.

The said order was challenged before learned Principal Sessions Judge, Anantnag, in terms of a revision petition which was dismissed on 22.12.2018. Accordingly, power of this Court in terms of Section 561-A Cr. P. C has been invoked by pleading that:

(A) The petitioner is working in a private company and is getting a salary of Rs.12000/ per month and is having no other source of income and is having liability of old ailing mother and a son from another wife to whom he has to pay Rs.2500/ per month. The salary slip was submitted before the revisional court but same was not appreciated;

(B) The petitioner has another liability in the shape of bank loans which he has availed from J&K Bank and now has to pay instalments of the said loan;

(C) The plea of the petitioner that he has been removed from the J&K Bank has not been entertained by the courts below even though the copy of removal order was produced before both the courts;

(D) The respondent could neither prove the income of the petitioner nor could prove that the petitioner was still an employee of J&K Bank and despite this fact, the learned Judicial Magistrate 1st Class, Bijbehara passed the impugned order directing payment of maintenance of Rs.9000/ per month;

(E) The learned Court of Sessions Judge, Anantnag has not appreciated the facts and the law pleaded by the petitioner in the revision petition filed against the impugned judgment of Judicial Magistrate 1st Class, Bijbehara;

(F) The impugned judgments are against facts and law.

(G) The respondent was never forced to leave her matrimonial home by the petitioner nor was any dowry demand made by the petitioner but the respondent left the matrimonial home along with her brother in the month of June, 2012 and never returned and after a gap of more than 3 years filed the complaint u/s 488 Cr. P. C only to harass the petitioner.

Heard learned counsel for the parties.

It is being contended by the learned counsel for the petitioner that the learned Magistrate was under obligation to take note of the income of the petitioner and also the liability which he had and, accordingly, fix a reasonable amount in case said Magistrate had framed a conclusion that the petitioner herein has to pay the maintenance. Liabilities of the petitioner for maintaining himself, his parents and son from another marriage have been totally ignored. It is being also submitted that an order has also been passed in the proceedings initiated on behalf of the petitioner's son born out of earlier marriage, whereby the petitioner was directed to pay an amount of Rs.2500/ in his favour. The reasons given for not accepting the evidence on record about income of the petitioner are stated to be bad. It has also been pleaded that the factum regarding liabilities of the petitioner has also come in the statement of the petitioner and has not been controverted by the other-side. In support of submissions, reliance is placed on the judgment of this Court in "Gh. Mohd. Tantray vs. Shahida Akhter" reported in 2007 1 JKJ 498. It is also being submitted that only 25% of the total income can be given to the spouse as maintenance allowance.

On the other hand, Mr. Bhat, learned counsel appearing for the respondent, has submitted that the remedy, in the circumstances in which the power of this Court is being invoked, was to file a motion in terms of Section 489 Cr. P. C. This is in view of the fact that the petitioner herein despite having in his possession the documents on which reliance is placed, has not produced the same before the learned Magistrate. Furthermore, the powers under Section 561-A Cr. P. C are to be invoked only in rarest of rare cases and the course adopted by the petitioner for frustrating the order for avoiding the payment of maintenance, cannot be accepted. Reliance is placed on the judgments of Hon'ble Apex Court in State of Orissa v. Suraj Kumar Sahoo, reported in (2005) 13 SCC 540, Madhu Limaya v. State of Maharashtra (AIR 1978 SC 47), and, "Arun Shankar v. State of U. P" (AIR 1999 SC 2554).

Considered the rival contentions made in the light of material available before me.

It has been noted hereinabove that the learned revisional court has dismissed the revision petition filed by the petitioner herein while observing that:

"I have considered the arguments and have gone through the record of the revision petition. The order passed by the ld. Trial court in the application for maintenance dated 30/01/2018 is also perused. In its order, ld. Trial court appears to have considered desirability of granting maintenance in favour of the respondent herein. Ld. Trial court directed maintenance of Rs.9000/ to be paid in favour of respondent herein. On apparent perusal of the impugned order it appears that the ld. Trial court has properly appreciated the facts and circumstances concerning the petitioner and of the respondent. Respondent is legally wedded wife of the petitioner, as such, the respondent is entitled for maintenance from the petitioner.

The petitioner in the revision petition has stated that he has been removed from his services in the J&K Bank Lt but no such removal/termination order has been placed on record by the petitioner before this Court. Even if it is presumed that petitioner is out of service still he is under obligation to maintain his wife, he cannot escape from the said liability. The quantum of maintenance awarded by the trial court cannot be said beyond the financial capacity of the petitioner-husband. Petitioner's plea that he has been removed from service is of no importance as he is obliged to maintain his wife/respondent herein. Even an able bodied husband having no income cannot be divested of the responsibility to maintain his wife. These observations and conclusions drawn by the ld. Trial court which are probable to be taken in the light of the record available with the ld. Trial court. Therefore, the grounds raised by the petitioner in his revision petition are devoid of any merit.

Accordingly, I find there to be no illegality or perversity in the impugned order. Ld. Trial court has followed the procedure in letter and spirit and there is absolutely no irregularity in conducting proceedings. Therefore, there is no merit in the revision petition which is as such rejected. Order passed by the court below is upheld. Petition is disposed of accordingly."

The pertinent plea of the petitioner herein that he was not having the income to the extent referred by the petitioner herein as a bank employee has not been touched on the analogy that no document is placed on record. Contention of the petitioner is that it was on record and so reference so made is uncalled. The learned Magistrate has also not accepted the contention raised on behalf of the petitioner that he had been removed from the bank job and his earnings were limited to the extent as referred in the objections. It is being observed on the analogy that no bank employee was produced to support the contention. A negative statement made in terms of any pleadings and which is not exclusively within the knowledge of that person, has be proved by the person asserting it. In the instant case, it was for the respondent herein to prove that the petitioner herein had earnings of more than Rs.12000/ and he was a bank employee. Merely because any official was not produced by the petitioner herein in support of his contention or that no original document was not produced would be too technical and narrow view of the matter. Similarly, the liabilities which the petitioner herein had stated he had, having direct nexus with the allowance to be fixed, same was required to be given a proper thought by the trial Magistrate. A tentative assessment of the income of the petitioner along with his capacity to earn and the dependents he had to maintain were the relevant factors to be considered. What had been the routine expenses of the spouses when they were living together, was also a pointer in fixing the quantum. Benevolence to one member of family should not result in being harsh to another. View of the Calcutta High Court in "Saheda Khatoon vs Gholam Sarwar" reported in 2002 Cr.LJ 4150, that general reasonable rule would be to given the wife 1/5th of the income of husband. In view of this, it can be safely stated that impugned order has traits of occasioning failure of justice necessitating interference by this Court in exercise of powers under Section 561-A of the Code of Criminal Procedure.

There is no alternate remedy available with the petitioner herein of which he could have taken resort.

The contention raised by learned counsel for the respondents that the petitioner herein can move an appropriate motion under Section 489 Cr. P. C is fallacious. There is not a change of circumstances. There has been an omission on the part of learned Magistrate to appreciate the relevant contention raised in this behalf properly. In this view of the matter, I am of the opinion that it would be proper to quash the impugned order by invoking power under Section 561-A Cr. P.C. Accordingly, the petition is allowed and the order impugned is quashed. Learned Magistrate is directed to pass fresh orders in conformity with the provisions governing the field after hearing the parties and taking into account income of the petitioner herein as well as liabilities while fixing the allowance. Capacity to earn and other relevant factors in this regard need also to be gone into. Till the exercise of passing fresh orders is completed by the learned trial court, the petitioner herein shall pay a monthly allowance of Rs.3000 (rupees three thousand) to the respondent from the date filing of instant petition before this Court. The observations made hereinabove shall not be treated as an expression of opinion of main merits.

Copy of this order be sent to the Court of Judicial Magistrate 1st Class, Bijbehara, for information and compliance.