Zubeda Khatoon vs The State of Jharkhand and Another

Jaya Roy, J.—In this case, both the parties appeared before me and I had a talk with them but they were not ready to compromise the matter.

The Petitioner his filed this revision application against the judgment dated 23rd June 2009 passed in M.P. case No. 23 of 1998 by the Principal Judge, Family Court, Dhanbad, whereby, the trial court directed the husband opposite party to pay a sum of Rs. 1500/- per month as maintenance to the Petitioner for her maintenance from the date of the Judgment i.e. 23rd June 2009. The trial court by the aforesaid order refused to grant any maintenance to the daughter of the Applicant-Petitioner. The applicant Petitioner who is the wife of the opposite party No. 2 namely Abdul Rauf Ansari has filed the instant revision challenging only to the extent that the lower court has been pleased to allow the maintenance amount only from the dale of the judgment i.e. 23.6.2009 and not from the date of the institution of the case i.e 7.2.1998.

The counsel of the Petitioner has submitted that the opposite party No. 2 has not disputed the marriage neither he has disputed the fact that his wife is living separately from him.

The Petitioner�s case, in brief, is that she was married with the opposite party and after the marriage they lived together as husband and wife. From the said wedlock, two daughters were born. But after sometime, the opposite party and his family members started torturing and assaulting the present Petitioner and used to neglect her. Ultimately, she was ousted from their in-laws house oh 8.7.1989 and since then, Petitioner is living with the parents. Regarding the torture, she has also filed a complaint case being C.P Case No. 154 of 1989 and she has also filed a M.P. Case No. 39 of 1990 for her maintenance. Put on the basis of an undertaking given by her husband, she went to her husband. But from there, she was taken to the native place of her husband in 1997. Again, she was assaulted there and even she was not provided any food and doth. On 3rd December 1997, her LTI was taken forcibly on a compromise petition which was filed in C.P. Case No. 154 of 1989 as she objected and filed an objection petition in he said complaint case against the compromise petition, hit husband and his family members threatened to kill her. Ultimately, she again left the house of her husband. Her further case is that her husband is a teacher in a Government school and as he has huge agricultural lands and he also earns Rs. 30,000/- per annum from the said land.

The opposite party appeared and filed his show cause and admitted the marriage with the Petitioner and also admitted that the two daughters were born from him. He has further admitted that there was a compromise between them in the Family Court and he had taken his wife to his village home. But according to him, his in laws forcibly taken away his wife from him. In this case, the Petitioner has examined two witnesses including herself to prove her case. The opposite party has also examined himself as a solitary witness in this case. The Petitioner has very specifically proved her case. Though the opposite party admits the marriage and birth of two daughters but the Petitioner has slated in BB evidence that she is living in her Maike since 1997 with her two daughters as her in laws did not allow her to live with him nor his husband is keeping her with him in his house.

From the impugned order, I find that it is not disputed that the Petitioner and her two daughters are living separate from the opposite party No. 2 and the opposite party No. 2 is not maintaining them since 1997 as she along with her two daughters living with her Maike. It has also come in the evidence that the opposite party No. 2 is a teacher in the Government School.

The learned Counsel for the Petitioner submits that the Petitioner must get maintenance from the dale of the application i.e. from 7.2.1998 not from the date of order 23.6.2009. In this context, he has cited a decision of the Hon�ble Apex Court reported in Shail Kumari Devi and Another Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak, in which the Hon''ble Apex Court has held:

Para. 46. Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast-upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court 1 called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in ''lie affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of "special reasons" though the must record reasons as envisaged by Sub-section (6) of Section 354 of the Code in support of the order passed by him.

In this case, the trial court has granted maintenance to the Petitioner from the date of the judgment and the said judgment has not been challenged by the opposite party (the husband). Therefore, the only question is to consider is whether the Petitioner is entitled for maintenance from the date of the impugned judgment or from the date of the application u/s 125 Code of Criminal Procedure filed by her? In view of the aforesaid decision of the Hon''ble Apex Court; in try opinion, the trial court is totally erred in not granting the maintenance amount to the Petitioner from the date of the application i.e. dated 7.2.1998. According to the aforesaid decision of the Hon''ble Apex Court and as the Amendment Act 2001 came into force on 24.9.2001, the Petitioner is entitled to an amount of Rs. 1500/- per month only from the date if when the Amendment Act came into force i.e. 24.9.2001 and before the said period she is naturally entitled the maintenance amount only Rs. 500/- per month i.e. from 7.2.1998 to 23.9.2001 as that was the limit of maintenance at (hat time.

As discussed above, I direct the opposite party to pay the Petitioner a sum of Rs. k 500/- for her maintenance for the period from February 1998 to September 2001 and thereafter, a sum of Rs. 1500/- per month from October 2001. It is further directed that the opposite party will pay the current maintenance i.e. 1500/- per month on or by 10th day of the each month according to the English Calendar. Regarding the arrears amount, the opposite party is directed to pay the entire amount in Right (8) equal installments and Two (2) installments per year and on or by December 2014, he must pay the entire arrears amount to the petitioner. Regarding the mode of payment, the Petitioner will open a Saving Account in any Nationalized Bank in her name and the opposite party ill deposit the maintenance amount as directed above.

With the aforesaid direction, I set aside the part of the impugned judgment dated 23.6.2009 and the revision application is partly allowed to the extent indicated above.