Ahmad Sheikh vs Asma Khatoon

Amitav Kumar Gupta, J.—In this application the petitioner has challenged the correctness of the order dated 26.11.2011 passed in Miscellaneous Case No. 38/2002 whereby and whereunder the maintenance amount under Section 125 of Cr.P.C. was enhanced to Rs. 2,000/- per month.

It has been urged by the learned counsel for the petitioner that the order for payment was stopped in 1989 and the opposite party did not challenge the said order and after almost 13 years she filed the application claiming maintenance at an enhanced rate. It is contended that non-claiming of maintenance for such a long time shows that she is capable and has sufficient means to maintain herself. In support of the contention, learned counsel for the petitioner has relied upon decision reported in 2014 (4) JBCJ, 447 (Sunita Kachwaha and Ors. v. Anil Kachwaha). He has also relied on the decision rendered in the case of D. Velusamy Vs. D. Patchaiammal, , and referred to para 6 of the said judgment which reads as follows:--

"6. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14-9-1986, and that he left her after two or three years of living together with her in her father''s house. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein." 3. Relying on the aforesaid decision of the Hon''ble Apex Court, learned counsel for the petitioner submitted that the impugned order has been passed without appreciating the above facts and is therefore liable to be set aside.

On the other hand, learned counsel for the opposite party has submitted that the application has been filed under Section 125 Cr.P.C. as has been rendered in the case of Rajathi Vs. C. Ganesan, it has been stated as follows:--

"...7. The words " unable to maintain herself "would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow...." 5. Learned counsel for the opposite party has relied upon a decision rendered in the case of Veena Devi Vs. Ashok Kumar Mandal, ; that the quantum of maintenance awarded should be seen with respect to the relevant time as to the ability or otherwise of the wife maintain herself. In the instant case the wife had filed an application as she was unable to maintain herself and she also had to provide for the food, clothing and needs of her unmarried daughter. The trial court has rightly awarded maintenance, hence it requires no interference.

The moot question which arises for determination is as to whether in the facts of the present case is, whether the non-filing of any application by the wife for her maintenance after the stoppage of the said payment in 1989, will lead to conclusion that she was capable to maintain herself. It is settled that an order under Section 125 Cr.P.C. can be reviewed by the Court as it is not an order in terms of Section 362 Cr.P.C.

On going through the impugned order, it would be evident that the maintenance was being paid till 1989 and it was cancelled on the application of the husband claiming that after the enactment of Muslim Women (Protection of Right of Divorce) Act, 1986 the divorced Muslim wife is not entitled to maintenance, and the Court below, after considering the provision of law, stopped the payment.

Apparently, the opposite party had filed applications for setting aside the cancellation of the maintenance and enhancement of maintenance of the minor daughter from Rs. 100/- to Rs. 400/- which the Court below rejected on the ground that it had no power to recall or review its own order. The said order was not challenged by the petitioner. Thereafter, opposite party had preferred a Revision being Criminal Revision No. 254 of 2004 whereby the Court set aside the order and remanded the matter for deciding the same in accordance to the provision of law.

On the basis of the said order the petitioner has led evidence resulting in the present impugned order.

The decision cited by the learned counsel for the petitioner in the case of the Sunita Kachwaha and Ors. v. Anil Kachwaha (Supra) it has been held-

"9. 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 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." 11. In the instant case, it is evident that opposite party has averred that she is unable to maintain herself and her daughter. It is urged by the learned counsel that O.P.''s daughter has been married of during the intervening period and this shows that she has sufficient means to maintain herself. The above contention of the learned counsel is not sustainable as in the case of Rajathi v. C. Ganesan (Supra) it has categorically been held that the maintenance should be with respect to the standard or status in which she was being maintained by her husband and would not include the efforts made by her to survive somehow. The petitioner has not brought any evidence on the record in the trial court to show that opposite party has the source or means of income by which the opposite party has been maintaining herself or had the means to solemnize the marriage of her daughter.

Admittedly, the opposite party is the divorced Muslim wife but this does not deprive her or bar her from claiming maintenance under Section 125 Cr.P.C. and it is not disputed or denied that she has not re-married. The word wife means and is inclusive of the women who is a divorcee and is not re-married as defined under Section 125 Cr.P.C.

The Court below has rightly held that the daughter of the petitioner was married and has declined to grant maintenance to the daughter of O.P.

The decision relied upon in the case of D. Velusamy v. D. Patchaiammal (Supra) discussed above, is also not applicable in the present case, since in the said case, the petition under Section 125 Cr.P.C. was filed almost after 12 years of divorce. Here in the instant case the facts can be distinguished on the ground that the opposite party had filed application under Section 125 Cr.P.C. and the said maintenance allowance was cancelled when the petitioner filed an application under the provision of Muslim Women (Protection of Right of Divorce) Act, 1986 and it would be evident that the opposite party had challenged the cancellation order and also the enhancement of the maintenance. Therefore, it cannot be said that the opposite party kept silent for 12 to 13 years and she is not entitled to any maintenance. It is well settled that the order under Section 125 Cr.P.C. can be reviewed by the Court as it is not an order in terms of Section 362 Cr.P.C. The Court below has passed the order of enhancement of maintenance after reviewing the earlier order after discussing the material facts and evidence on record.

The petitioner has retired from service and he is getting pension of Rs. 4,700/- per month and he has also got the retiral benefits. Thus, in the facts and circumstances, the order dated 17.06.2006 is modified and the petitioner is directed to pay the maintenance @ Rs. 1,500/- per month from the date of passing of the order by the Family Court i.e. from 26.11.2011. With the aforesaid modification in the impugned order, this Cr. Revision is hereby disposed of.