Abdulsattar vs Noorjahan

K.N. Phaneendra, J.—The petitioner, who is the husband and respondent before the trial Court, has called in question the order passed by the learned Principal Judge, Family Court, Hubbali, granting maintenance of Rs. 5,000/- per month in favour of the respondent herein.

After issuance of notice to the respondent, the respondent refused to receive the notice. Hence, service of notice to respondent was held sufficient.

I have heard the learned counsel for the petitioner and perused the records.

For the purpose of convenience I would like to retain the ranks of the parties, as per their ranks before the trial Court.

Smt. Noorjahan filed a petition under Section 125 of Cr.P.C. seeking maintenance of Rs. 5,000/- from the respondent-husband on the ground that she is legally wedded wife of the respondent and they lived happily with each other for some days and they are blessed with a male child and after some time their relationship was strained. Therefore, she started living separately. The respondent has taken 2nd wife and living with her. The petitioner was suffering from ill health and she has taken treatment as inpatient for three months in the year 1987 and she was not fully cured. The petitioner''s brother has spent Rs. 60,000/- to Rs. 70,000/- towards her medical expenses etc., and thereafter she started living with her parents. The respondent has not made any arrangements towards her maintenance etc. She pleaded that the respondent has neglected her and refused to maintain her though he has got sufficient sources of income. Hence, she filed a petition.

The respondent-husband appeared before the trial Court and denied all the allegations made therein and he has categorically taken up the contention that he has been looking after her by giving separate residence and also taking care of her. She voluntarily left the conjugal company and started living separately. The allegations made are reckless and unreasonable and those are concocted for the purpose of prejudicing the Court. He stated that he never refused and neglected to maintain her. Actually he has been maintaining her. Hence, he pleaded for dismissal of the petition.

Petitioner examined herself as P.W. 1 and got marked Exs. P1 to P8 and the respondent did not enter into witness box, except cross-examining P.W. 1. He has not produced any documents. The respondent merely relied upon the cross-examination of P.W. 1. The trial Court after analyzing the evidence of P.W. 1, has granted maintenance of Rs. 5,000/- per month.

The learned counsel for the husband has drawn my attention to the cross-examination portion of P.W. 1.

I have carefully perused the evidence of P.W. 1. In the evidence she has categorically stated that after the relationship being strained and she was ill-treated by the respondent she lodged a complaint before the Jamath in the year 1999, 2005 and 2006 etc. It is stated that the respondent has taken 2nd marriage and he has not made sufficient arrangements for her maintenance. He has got seven houses and he gets rent of Rs. 80,000/- per month. He is also having an auto consultancy and earning Rs. 10,000/- to Rs. 15,000/- per month. Therefore, she is entitled for maintenance as prayed for.

Of course, in the cross-examination she has admitted that in the year 1987 she sustained burn injuries and at that time she was admitted to the hospital and the respondent himself has spent the entire medical expenses. She further admitted that the respondent has taken care of her and looking after all her expenditure. It is further admitted that as and when she fell ill, her husband took her to the hospital for treatment and even as on the date of evidence also he has been taking care of her. It is also admitted that the respondent has been taking care of the child and he never neglected her at any point of time. It is further admitted that the respondent has made separate arrangement for her living by getting a house for her on rent and he has looking after all expenditure. Though he is taking all the care but not giving any incidental expenditure. It is stated that her husband earns Rs. 10,000/- to Rs. 15,000/- per month. She requires Rs. 5,000/- per month to meet her additional expenses.

Looking to the above said cross-examination, she never stated that the respondent has completely refused and neglected her and in fact as a dutiful husband he has made all arrangements so far as house and other necessities are concerned.

In my opinion the husband is discharging his duties as a dutiful husband. However, mere taking care of her by providing some necessities itself is not sufficient, there should be some amount to be paid towards incidental expenditure, whenever unforeseen incidents happen. The petitioner though not entitled for maintenance as claimed for, but she is entitled for reasonable amount towards incidental expenses. Therefore, if an amount of Rs. 1,500/- per month, is ordered to be paid by the respondent to the petitioner as incidental expenditure, it would meet the ends of justice. The trial Court without even looking into the cross-examination portion of P.W. 1 has completely ignored the provisions under Section 125 of Cr.P.C. and also the evidence therein while granting the maintenance amount as sought for and the same is liable to be interfered with by this Court.

It is made clear that if Rs. 1,500/- is not sufficient for the petitioner-wife, she has to make specific ground for maintenance. When she has categorically admitted that the husband is taking care of her by spending money towards house, electricity charges and providing groceries, there must be specific allegations as to how she is further more entitled for maintenance. Therefore, the trial Court has not properly appreciated the evidence on record, which requires to be considered by this Court.

Under the above said facts and circumstances of the case, I proceed to pass the following:

"The petition is partly allowed. The order of the trial Court is modified.

The respondent-husband is directed to pay maintenance of Rs. 1,500/- per month to the wife-petitioner from the date of petition till realisation. He has to pay every month in future till the order is altered."