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Judgment
This is a petition under Section 482 of the Code of
Criminal Procedure against order dated 30.06.2016 passed by
learned Additional Sessions Judge, Khategaon, District
Dewas in Criminal Revision No.23/2016, whereby and
whereunder the learned revisional Court has declined to
interfere with the order dated 22.01.2016 rendered by Judicial
Magistrate First Class, Khategaon in MJC No.14/2013
directing the petitioner to pay maintenance allowance to the
respondent @ Rs.2,000/- per month.
The order passed by the Magistrate, which has been
maintained by the learned revisional Court, has been
challenged on the ground that firstly, the prayer for
maintenance was made after about 24 years; secondly, that
the respondent has married again and thirdly, that the
petitioner is not earning sufficiently so as to pay Rs.2000/-
per month by way of maintenance to the respondent. It is also
submitted that the respondent was duly divorced by the
petitioner and, therefore, under the Muslim law, he is no more
liable to pay maintenance to her.
Per contra, learned counsel for the respondent has
submitted that all the aforesaid factors were duly taken into
consideration not only by the learned Magistrate but also by
the learned revisional Court also and, therefore, in this
petition, which is nothing but a second revision against the
revisional order, no scope for interference is there.
Heard the learned counsel for the parties and perused
the record.
The learned revisional Court has considered in para-17
that a Muslim wife even after divorce is entitled to get
maintenance from her previous husband till her remarriage.
Reliance in this regard has rightly been placed on the decision
of the apex Court in Shabana Bano vs. Imran Khan, AIR
2010 SC 305, para 23 whereof runs as under:
"29. Cumulative reading of the relevant
portions of judgments of this Court in Danial
Latifi (2001 AIR SCW 3932) and Iqbal Bano
(2007 AIR SCW 3880) (supra) would make it
crystal clear that even a divorced Muslim
woman would be entitled to claim
maintenance from her divorced husband, as
long as she does not remarry. This being a
beneficial piece of legislation, the benefit
thereof must accrue to the divorced Muslim
women."
Therefore, the plea that the parties are Muslims and the
petitioner is not under an obligation to pay maintenance
because the respondent has been divorced by him is
unsustainable.
As regards delay in filing the petition for grant of
maintenance, the learned revisional Court has dealt with this
aspect in para-18 of the impugned judgment. It has been
held that delay by itself cannot be a ground to deny
maintenance to the wife because the provision for
maintenance is to sub-serve a social purpose and to prevent
vagrancy. In this connection a reference can be made to the
pronouncement of this court in Sakun Bai (Smt.) vs. Ramji,
1998 (I) MPWN Note 166, relevant observations whereof are
as under:
"Now the other point, considered
sufficient by the Courts'' below, for
dismissing the petitioner''s application for
grant of maintenance, that the
petitioner/wife had approached the Court
quite late i.e. after about 7 years of her
having obtained divorce from her husband.
At the first place, the Code of Criminal
Procedure does not prescribe any period of
limitation for filing of an application, under
Section 125, for grant of maintenance.
Secondly, there may be various reasons for
the delay in filing the application under
Section 125, of the Cr.P.C. As under the
scheme, maintenance cannot be granted
beyond the date of the filing of the
application, the husband, in the event of
delay in filing the application under Section
125 Cr.P.C., must thank his wife for not
approaching the Court early, or else he
would have to pay the maintenance for that
period also. Delay in filing an application
under Section 125 Cr.P.C., can never be a
ground for debarring the wife, who is
otherwise legally entitled to receive
maintenance from her husband, from
seeking maintenance under Section 125 of
the Cr.P.C."
In Golla Seetharamulu vs Golla Rathanamma and
Anr. 1991 CriLJ 1533, a D.B. of the A.P. High Court dealing
with the plea of limitation for seeking maintenance under
section 125 Cr.P.C. has held as under:
"Simply because the wife has not claimed
maintenance for a long period, it does not mean that
she has completely abandoned her right or voluntarily
given up her right to claim maintenance. In her
application she pleaded that she has no other source of
income and she is unable to maintain herself. She
might be living with her parents to the utter
humiliation of other ladies and without any courtesy
and respect which a daughter is entitled to in her
parental house if she is living quite happily and
peacefully with her husband, with the only fond hope
of reunion. But when all her hopes are shattered away,
and when there is no other source of income and when
she feels herself a burdensome to her parents or
brothers, she has approached the Court claiming
maintenance. Apart from that, Section 125 Cr.P.C. has
not restricted the period of limitation to claim
maintenance. When the statute has not prohibited any
wife to claim maintenance with (within) any period of
limitation, the petitioner is not entitled to plead that
she has waived her right to claim maintenance due to
the long lapse of 10 or 12 years after she left his
house. Due to the changed circumstances in her
parents house, her parents may not be willing to
maintain her and they may not be in a position to
maintain her since other children have grown up and
some other problems might have cropped up in her
family."
In view of the aforesaid, it cannot be said that either the
respondent waived her right to claim maintenance by not
filing a petition for pretty long time or that she forfeited her
right to claim maintenance under Section 125 of ''the Code.
As regards the plea that the petitioner is not able to earn
sufficiently, so as to pay maintenance to the respondent, the
learned revisional Court has dealt with this issue in para-22,
23, 24 & 25 of the impugned order and referring to various
authorities has come to the conclusion that a husband who is
physically fit cannot be allowed to take shelter under the plea
that he is not having any income.
The issue as to the sustainability of the plea raised by the
husband that he does not have means to pay, has been
considered at length by the apex Court in Shamima Farooqui
vs. Shahid Khan, (2015) 5 SCC, 705. The relevant part of the
judgment runs as under:
"There can be no shadow of doubt that an order
under Section 125 CrPC can be passed if a person
despite having sufficient means neglects or refuses to
maintain the wife. Sometimes, a plea is advanced by
the husband that he does not have the means to pay,
for he does not have a job or his business is not doing
well. These are only bald excuses and, in fact, they
have no acceptability in law. If the husband is healthy,
able bodied and is in a position to support himself, he
is under the legal obligation to support his wife, for
wife''s right to receive maintenance under Section 125
CrPC, unless disqualified, is an absolute right."
Though it is contended that the respondent has entered
into a second marriage, however, the petitioner in his
statement recorded before the learned Magistrate has not
deposed in this regard.
In view of the above, this petition having no force,
deserves to be and is accordingly, hereby dismissed.