C. Fakruddin vs Razia Begum

R.S. Chauhan, J.—The petitioner, Mr. C. Fakruddin Sab, is aggrieved by the order dated 28/7/2015, passed by the Principal Judge, Family Court, Bellari, whereby the learned Judge has dismissed an application filed by the petitioner under Section 127 of Cr.P.C. for modification of the order dated 26/11/2013 passed in Crl. Mis. No. 14/2013.

Briefly the facts of the case are that the petitioner, Mr. C. Fakruddin Sab was married to the respondent No. 1, Smt. Razia Begum. During the course of their wedlock, they were blessed with two children. However, subsequently, differences arose between the couple; they parted their ways. Since, Smt. Razia Begum was unable to maintain herself and her two daughters, she filed an application under Section 125 of Cr.P.C. namely, Crl. Misc. No. 92/2002. The learned Court allowed the said application, and directed the petitioner to pay a maintenance of Rs. 1,000/- to respondent No. 1, and Rs. 800/- each to two daughters, the respondent Nos. 2 and 3. Subsequently, after a lapse of 11 years, the respondent-wife filed and application for enhancement of the maintenance amount, in the form of Crl. Mis. No. 14/2013. The said application was allowed; the maintenance was enhanced from Rs. 1,000/- to Rs. 10,000/- to each respondent payable w.e.f. 26/11/2013.

Since the petitioner was aggrieved by the said enhancement, he filed a Revision Petition before this Court namely, RPFC 100056/2014. He also filed a modification application in the form of Crl. Misc. No. 119/2014 before the learned trial Court. However, due to the pendency of the revision petition before this Court, the learned trial Court has dismissed his application for modification of the order, inter alia on the ground that the said application for modification was premature as the order enhancing the maintenance was already under challenge before this Court.

Subsequently, on 17/10/2014, the petitioner withdrew his revision petition against the enhancement of order. Thereafter, he filed an application under Section 127 of Cr.P.C. in the form of Crl. M.C. No. 234/2014 praying that the enhancement order should be altered, or the maintenance award should be cancelled. However, by order dated 28/7/2015 the said application has been dismissed. Hence, this petition is before this Court.

Mr. Arun L. Neelopant, the learned counsel for the petitioner, has vehemently raised the following intention before this Court:-

Firstly, since circumstances had changed, which were in favour of the petitioner, therefore the order of enhancement should have been modified, and the amount of maintenance should have been reduced by the learned Court. According to him, when this order of enhancing the maintenance was passed, the petitioner was in service and was earning a handsome amount. However, subsequently, he was placed under suspension and eventually, his services were terminated. Therefore, the petitioner is not in a position to pay a maintenance of Rs. 10,000/- each for the respondents. According to him this fact was not brought to the notice of the learned Court while passing the impugned order. Secondly, that the impugned order has been passed on the basis of surmises and conjuncture. Therefore, the impugned order deserves to be set aside.

On the other hand, Smt. Suma Yalagur, the learned counsel for the respondents, has strenuously contended that even if the petitioner had lost his job, he had been dismissed from his service for his own fault. Since there was an allegation that he has sexually harassed his own colleague, after due enquiry, he was dismissed from his service. Therefore, he cannot be permitted to take benefit of his own fault. Secondly, during the proceedings before the court, the respondent had raised the contention that the petitioner had been earning Rs. 1,00,000/- per month, he had served over twenty years. Thus, he has saved almost Rs. 25,00,000/-. This plea, raised by the respondents, was never counter by the petitioner. Therefore, the learned Court was justified in concluding that notwithstanding the fact that he had been dismissed from his service, he has had sufficient means to maintain and pay the enhanced amount. Particularly, even other pleas raised by the petitioner were found to be faulty. Therefore, the learned Court was justified in dismissing the application under Section 127 of Cr.P.C. Thus, the learned counsel for the respondents has supported the impugned order.

Undoubtedly, the petitioner had been suspended from his service on the allegation that he had allegedly sexually harassed a colleague. According to the petitioner himself, he was dismissed from the service after enquiry was held. According to the petitioner, the order of dismissal is under challenge before the court. Nonetheless, the petitioner has his lost job, he has lost it due to his alleged misconduct. Therefore, he cannot be permitted to take the benefit of his own alleged wrongful act.

Even otherwise, poverty is not a valid defence in a case of maintenance. Thus, the petitioner cannot contend that having lost his job, he has become a pauper. Even his other plea that he has settled with his ailing mother, who needs medical attention was disbelieved by the learned Court as he had not produced any evidence to buttress to the said plea.

A bare perusal of the impugned order clearly reveals that the respondent had raised a plea that the petitioner had sufficient amount of money with him, as he has saved Rs. 25,00,000/-. Since the respondent would not have access to the petitioner''s bank account and other savings, it was incumbent upon the petitioner to counter the said plea by producing sufficient documentary evidence to clearly show the amount that was saved by him during the course of 20 years of service. However, according to the learned Court, the petitioner did not submit a iota of evidence to establish the amount that he has saved during the course of his service. Since the statement made by the respondent went un-rebutted by the petitioner, the learned Court was legally justified in accepting the plea raised by the respondents.

Considering the high rise of prices, considering the social and financial difficulties that women faces, considering the difficulty that the respondent would face having to bring up her daughters on her own, considering the fact that the daughters need to be educated and eventually married of, a maintenance of Rs. 10,000/- for each respondent, is a reasonable one.

For the reasons stated above, this Court does not find any merit in the present petition. It is, hereby, dismissed.