Syed Mohammed Khaja Hussaini vs Atiya Nasreen and Others

K.N. Phaneendra, J.—Petitioners in the above two petitions have called in question the order dated 08.02.2013 passed by the District Judge, Family Court, Gulbarga, in Criminal Miscellaneous No. 42/2011 awarding maintenance of Rs. 5,000/- per month to respondent No. 1/wife from 17.02.2011 to 04.08.2012 and Rs. 3,000/- to respondent No. 2 in RPFC No. 543/2013 from the date of the petition till petitioner No. 2 attains the age of majority. For the purpose of easy understanding and convenience, I would like to retain the ranks of the parties, as per their ranks before the Trial Court.

Petitioners before the Trial Court by name Atiya Nasreen and her son Syed Amanullah Hussaini have filed petition under Section 125 of Cr.P.C., against the respondent-Syed Mohammed Khaja Hussaini alias Sarfaraz seeking maintenance of Rs. 25,000/- per month in all. Absolutely, there is no dispute with regard to the relationship between the parties i.e., respondent is the husband of petitioner No. 1 and father of petitioner No. 2. It is the case of petitioner No. 1 that she is a qualified Ayurvedic doctor and she did her BAMS from Rajiv Gandhi University and she was given in marriage to the respondent. Petitioner No. 1 and the respondent led happy married life for some time. It is further case that, the respondent is a qualified engineer and he was unemployed at the time of marriage, but later he got employment and he is having sufficient income from other sources. As some differences arose between petitioner No. 1 and the respondent, petitioners and respondent started living separately i.e., petitioners have sheltered themselves in the parental house of petitioner No. 1. As the respondent has not made any arrangements for their maintenance, on several grounds petitioners have approached the Trial Court for grant of maintenance. It is the specific case of the petitioners that respondent has neglected and refused to maintain them and they need Rs. 20,000/- and Rs. 5,000/- respectively per month for their maintenance. The respondent who appeared before the Trial Court has denied the other allegations except the relationship. He has specifically taken up the contention that he was unemployed at the time of his marriage, father of petitioner No. 1 was working in Gulf country and he is still in service and the respondent has no income to maintain himself and he is depending upon his parents. Comparatively, petitioner No. 1 is an educated lady. Therefore, she is not a lady who is unable to maintain herself. Therefore, he pleaded that he is not liable to pay any maintenance.

The Trial Court has recorded evidence of the parties. The petitioner examined herself as PW. 1 and got marked Exs. P1 to P17. The respondent also examined himself as DW. 1 and got marked Exs. D1 to D6. After analyzing the entire oral and the documentary evidence on record, the Trial Court has come to the conclusion that petitioner No. 1 was earlier practicing and admittedly earning Rs. 5,000/- to Rs. 6,000/- per month. According to her pleading, she stopped doing work. The Court, on analysis of the materials on record, particularly, admission of petitioner No. 1 that she was earning Rs. 5,000/- to Rs. 6,000/- per month when she was working as private practitioner, has observed and interpreted that Ex. D1 is a prescription given by petitioner No. 1 to her clients on 05.08.2012. The Court has observed that the respondent has produced certain material to show that she has been practicing from 05.08.2012 and she is earning more than Rs. 10,000/- per month from 05.08.2012. Though in the examination-in-chief of petitioner No. 1 and in the cross-examination of respondent, it is tried to establish before the Court that she is not having any work, but her own admission with regard to the fact that she was earlier practicing as private practitioner and earning Rs. 5,000/- to Rs. 6,000/- and admitted fact of prescription dated 05.08.2012 as per Ex. D2 makes it abundantly clear that petitioner No. 1 is an educated lady capable of earning money for herself and she is not a lady unable to maintain herself. Considering the above facts and the documentary evidence, the Trial Court has properly appreciated the materials on record and held that she is only entitled for maintenance up to 04.08.2012 from the date of the petition. Looking to the facts and circumstances, unless it is shown to the Court that she is incapable of practicing medicine by means of private practice or she is not practicing for various reasons, which can be taken into consideration to draw an inference that she is unable to maintain herself, till that point of time, the Court has to hold that she is able to maintain herself. Therefore, I do not find any strong reason to differ from the opinion expressed by the Trial Court so far as this aspect is concerned and rejecting petition for granting future maintenance from 05.08.2012 to petitioner No. 1. Therefore, the order of the Trial Court is proper and correct so far as that aspect is concerned.

The Trial Court has awarded an amount of Rs. 3,000/- to petitioner No. 2. Petitioner No. 2 was aged two months at the time when the petition was filed in the year 2011. The Trial Court has observed that petitioner No. 2 is a small child require lot of nourishment and petitioner No. 1 has to spend money for its education, clothing, medical expenses etc. It is not that the respondent is not a person who is unable to maintain the child and wife. But when the wife is able to maintain herself, he is absolved from maintaining the said lady. It does not mean to say that he can escape by paying meager amount of Rs. 3,000/- per month to child. In fact, the respondent has admitted in the evidence, as observed by the Trial Court, that he had been to Gulf country thrice and he was in Gulf country up to 2012. He was getting Rs. 25,000/- per month as salary in Gulf country. It is also observed that though he denied that he used to get Rs. 55,000/- per month as income but it cannot be easily brushed aside. When he himself has admitted that he was getting Rs. 25,000/- per month and he is capable of earning the said amount, if he does any avocation because he is a qualified B.E. graduate. The Trial Court observing all these aspects has granted Rs. 3,000/- per month to petitioner No. 2, in my opinion, is not sufficient considering the status of the parties which they lived together when they married each other and the child has to be developed in the same fashion under the above status of the parents. Therefore, considering surrounding circumstances and capacity of the respondent, I am of the opinion that second petitioner is entitled for maintenance of Rs. 5,000/- per month instead of Rs. 3,000/- per month. In my opinion, to that extent, petition of the wife in RPFC No. 539/2013 deserves to be allowed. Consequently, the petition filed by the husband for totally setting aside of the judgment of the Trial Court deserves to be dismissed. Accordingly, I pass the following:

RPFC No. 539/2013 is partly allowed. The maintenance amount awarded by the Trial Court so far as the second petitioner is concerned is enhanced to Rs. 5,000/- per month from the date of the petition before the Trial Court till the petitioner No. 2 attains the age of majority. Rest of the order of the Trial Court is not disturbed.

RPFC No. 543/2013 filed by the husband is dismissed.

However, petitioner No. 1 is at liberty to approach the Trial Court for maintenance in future on changed circumstances.