Javed Sayyed vs Reshma and Others

B. Veerappa, J.—The husband filed this revision petition against the judgment and order dated 18.11.2013 in Crl.Misc. No. 253/2012 on the file of the Prl. Judge, Family Court, Hubli granting maintenance of Rs. 4,000/- to the 1st petitioner-wife and Rs. 2,000/- to the 2nd petitioner-son from the date of petition until further orders.

It was the case of the respondents who are the petitioners before the Family Court that the 1st petitioner was the legally wedded wife of the respondent-husband and their marriage was solemnized as per Shriat of Islam on 21.06.2005 at Hubli in the residence of 1st petitioner''s parents and after the marriage, they lead happy married life and out of their wedlock two children were born and since birth of first child itself the respondent was harassing the petitioner No. 1 for no fault of her and when the second child was born, the respondent illegally and high handedly abandoned the petitioners and since last about two months she is residing at her parents and prior to that also, the petitioner No. 1 was illegally and high handedly chased by the respondent for about two years and with the advise of the elders the petitioner No. 1 again joined the respondent to lead her married life. But, since the harassment of the respondent and his family members petitioners were chased out by the respondent and even he failed to give the custody of the minor daughter Mahin and hence, she is in the forceful custody of the respondent. Since for the last more than two months, the petitioners are residing at the mercy of her parents and the respondent failed to maintain them, though many requests were made by the petitioners, their elders and other elders of the locality. The respondent is running A.J.E. Industry at Shivashaktim Nagar Angol, and also running a scrap business and apart from that he is doing the avocation of driving etc., Hence, the respondent is having a handsome income of more than Rs. 25,000/- per month. Though he is having sufficient monthly income, he is miserably failed to maintain the petitioners.

The petitioner-husband was appeared before the Family Court and filed the objection. In the objection statement, he has admitted the relationship of the petitioners and denied the other averments and also contended that he is an Auto rickshaw driver and earning Rs. 100/- per day and out of his meager income, he has to maintain his aged parents and provide them medicine, food, cloth etc and he has no other source of income. The 1st petitioner is giving tuition privately to the students and also she is privately working and earning Rs. 3,000/- and above per month and hence, she is quite capable to maintain herself. Therefore, the petitioners are not entitled any maintenance. Accordingly, prays for dismissal of the petition.

The 1st petitioner-wife examined herself as PW.1 and another witness has been examined as PW.2 and Exs. P1 to P5 were marked on behalf of the respondent-wife. The husband-respondent himself examined as RW.1 and Exs. R1 to R4 were marked.

After considering the entire material on record, the Family Court by its impugned order granted maintenance amount of Rs. 4,000/- to the petitioner No. 1 and Rs. 2,000/- per month to the petitioner No. 2 from the date of petition until further orders. Being aggrieved by the maintenance granted by the Family Court, the husband filed this petition.

Smt. Hemalekha K.S. learned Counsel for the petitioner has contended that the impugned order passed by the Family Court is exorbitant and without any proof of income as contended by the respondent. She also contended that out of the wedlock, they have got two children. Male child is with the mother and female child is with the father. The 1st petitioner without there being just and proper reason has left the house of the respondent-husband making false allegations and the respondent is an auto rickshaw driver earning Rs. 100/- per day and out of this meager income, the respondent-husband has to maintain his age old parents and a daughter and also contended that the respondent has denied that has no owning a factory and earning Rs. 25,000 to Rs. 30,000/- . Therefore, she sought to set aside the impugned order passed by the Family Court.

I have given my thoughtful consideration to the arguments advanced by learned Counsel for both the parties and perused the material on record.

After considering the entire material on record, the Family Court recorded a specific finding that the 1st petitioner-wife has proved that the respondent has neglected and refused the petitioners to maintain even he is having sufficient means. Therefore, it is the duty of the respondent-husband to pay maintenance to the wife and son as contemplated under the provisions of Section 125 of Code of Criminal Procedure. The Family Court after the considering entire material on record has recorded finding against both husband and wife and allowed the petition in part. At the same time, the wife has failed to prove that the petitioner-husband is running a factory viz., A.J.E. Industry at Shivashakti Nagar, Angol and earning Rs. 25,000/- to Rs. 30,000/- per month. Having recorded such findings, the Family Court taking into consideration the cost of living and the capacity of the petitioner-husband that he can maintain the wife and son, has granted Rs. 4,000/- to the wife and Rs. 2,000/- to the son. Admittedly, both the respondent and petitioner before the Family Court are residing at Hubli Town. Taking into consideration the price raised on the essential commodities, granting of the maintenance is insufficient. In spite of the same, the respondents have not able to prove that the petitioner is earning Rs. 25,000/- to Rs. 30,000/- .

Therefore, taking into consideration the peculiar circumstance of the case, the interim maintenance granted by the Family Court is just and proper. The Hon''ble Supreme Court while considering the provisions of Section 125 of Code of Criminal Procedure in the case of Bhuwan Mohan Singh Vs. Meena, AIR 2014 SC 2875 : (2014) AIRSCW 4201 : (2014) 8 JT 359 : (2014) 8 SCALE 573 has held as under:

"3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order form the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

On re-appreciation of the oral evidence of PWs.1 and 2 and RW.1 and material document at Exs. P1 to P5 and R1 to R4 and in view of the declaration made by the Apex Court, this Court is of the considered opinion that the impugned order passed by the Family Court is just and proper.

Accordingly, petition is dismissed.