WP 689/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 689/2016
Abid Khan s/o Chhote Khan,
Age : 48 years, Occ : Teacher,
R/o Mulla bada, Near Dargah
Maulvi Sahab, Kandhar,
Tq. Kandhar Dist Nanded. PETITIONER
.....VERSUS.....
1. Shaista Khanam d/o Abdul Raheman,
Age : 40 years, Occ : Business,
R/o Opposite Jama Masjid,
Post Kurum Tq. Murtizapur, Dist Akola.
2. The State of Maharashtra,
(Copy to be served on Public Prosecutor
High Court Bench at Nagpur). RESPONDE
NTS
Mr. M.S. Wakil, counsel for the petitioner.
Mr. R.D. Karode, counsel for the respondent no.1.
Mr. A.R. Chutke, Additional Public Prosecutor for the respondent no.2.
CORAM : REVATI MOHITE DERE, J.
DATE : 11 TH DECEMBER, 2017.
P.C.
Heard learned counsel for the parties. Rule is made
returnable forthwith with the consent of the learned counsel for the parties and the petition is taken up for final disposal.
2. By this petition, the petitioner has impugned the common judgment and order dated 12.02.2016 passed in Criminal Revision Nos.37/2011 and 194/2011, by the learned Additional Sessions Judge, Akola, by which the criminal revision (Criminal Revision No.37/2011) preferred by the petitioner was dismissed, whereas, the criminal revision (Criminal Revision No.194/2011) preferred by the respondent no.1 was ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:49 ::: WP 689/16 2 Judgment allowed and the amount of maintenance and mahr was enhanced from Rs.3,00,000/- to Rs.5,00,000/-.
3. Learned counsel for the petitioner submitted that the petitioner is ready to pay Rs.3,00,000/- (Rupees Three Lakhs) towards reasonable and fair provision and maintenance, as awarded by the trial Court vide judgment and order dated 28.02.2011 in Miscellaneous Criminal Case No.135/2008. He further submited that there was no justification for the learned Additional Sessions Judge, Akola to enhance the amount of maintenance and mahr from Rs.3,00,000/- to Rs.5,00,000/-. He submitted that the petitioner does not have sufficient means to pay the said amount of Rs.5,00,000/- and that the learned Sessions Judge had failed to consider the salary certificate of the petitioner. He further submitted that the petitioner has several dependents on him, i.e. his aged mother, two unmarried sisters, second wife and three children from the second marriage. He further submitted that the impugned judgment and order dated 12.02.2016 be quashed and set aside, insomuch as, it enhances the amount of maintenance and mahr from Rs.3,00,000/- to Rs.5,00,000/-.
4. Learned counsel for the respondent no.1-wife opposed the petition. He submitted that no interference was warranted in the ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:49 ::: WP 689/16 3 Judgment impugned judgment and order enhancing the amount of maintenance and mahr from Rs.3,00,000/- to Rs.5,00,000/-. He submitted that merely because the petitioner has married second time and has three children, who are dependent on him, cannot be a ground for reducing the amount of maintenance and mahr from Rs.5,00,000/- to Rs.3,00,000/-.
5. Perused the papers. The respondent no.1 is the first wife of the petitioner. The respondent no.1 and the petitioner got married in the year 1997 and have one daughter from the said wedlock. It appears that in 2002, the petitioner deserted the respondent no.1 and the daughter. It is alleged that an amount of Rs.15,000/- was fixed as mahr at the time of marriage, however, the said amount was not paid by the petitioner to the respondent no.1. In 2000, the respondent no.1 filed proceedings under Section 125 of Cr.P.C. as against the petitioner in the Court of the learned Judicial Magistrate First Class, Murtizapur and sought maintenance for herself and her daughter. Several orders were passed in the said proceedings. It appears that the learned Magistrate finally awarded maintenance to both, i.e. the respondent no.1 and her daughter, however, being aggrieved by the said order of enhancing the maintenance awarded to the respondent no.1, the petitioner preferred a criminal revision in the Sessions Court, Akola. The learned Additional Sessions Judge held that since the respondent no.1 was a divorcee, as talaq was given to her, the ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:49 ::: WP 689/16 4 Judgment respondent no.1 was not entitled to claim maintenance from the petitioner, however, the learned Additional Sessions Judge maintained the maintenance awarded to the respondent no.1's and petitioner's daughter, i.e. of Rs.1,000/- per month. Admittedly, the said judgment and order has not been challenged by the respondent no.1 till date. Considering the status of the respondent no.1 as a divorcee, the respondent no.1 filed an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act (hereinafter for the sake of brevity referred to as 'the said Act') and sought a reasonable and fair provision and maintenance from the petitioner. According to the respondent no.1, as the petitioner had not paid the mahr amount of Rs.15,000/- nor had he paid the maintenance amount of Rs.10,000/- during the iddat period, she claimed Rs.50,000/- per year for herself and her daughter or a lumpsum amount of Rs.20,00,000/- for her lifetime. According to the respondent no.1, the petitioner was serving as a teacher and drawing a monthly salary of Rs.20,000/- to Rs.25,000/-.
The petitioner herein, opposed the grant of any relief under Section 3 of the said Act. According to the petitioner, the respondent no.1 herself had put her matrimonial life in turmoil and had created circumstances which compelled him to divorce the respondent no.1. The petitioner denied having not paid any amount towards a reasonable and fair provision and maintenance during the iddat period. According to the ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:49 ::: WP 689/16 5 Judgment petitioner, after his divorce with the respondent no.1, he had re-married in 2002 and from the said wedlock, has three daughters. He also contended that he had an aged mother and two unmarried sisters to look after. The learned Magistrate, after considering the rival submissions advanced by the parties, concluded that the petitioner had neither paid mahr nor the maintenance amount during the iddat period, to the respondent no.1. The learned Magistrate also came to the conclusion that the respondent no.1 was unable to maintain herself and that the petitioner had sufficient means to pay maintenance to the respondent no.1 and accordingly awarded Rs.3,00,000/- to the respondent no.1 as reasonable and fair provision and maintenance.
6. Being aggrieved by the inadequate grant of maintenance, the respondent no.1 preferred Criminal Revision No.194/2011 and sought enhancement of maintenance and mahr amount; whereas the petitioner herein, also challenged the impugned judgment by filing Criminal Revision No.37/2011, and sought quashing and setting aside of the order passed by the learned Magistrate. The learned Additional Sessions Judge, Akola vide judgment and order dated 12.02.2016 dismissed the criminal revision filed by the petitioner herein, and allowed the criminal revision filed by the respondent no.1 for enhancement of the amount of maintenance and mahr and accordingly enhanced the maintenance and ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:49 ::: WP 689/16 6 Judgment mahr amount from Rs.3,00,000/- to Rs.5,00,000/-. The petitioner being aggrieved by the said enhancement of maintenance and mahr amount from Rs.3,00,000/- to Rs.5,00,000/- has preferred this petition. Admittedly, the respondent no.1 has not challenged the said judgment and order dated 12.02.2016.
7. The learned Additional Sessions Judge, after considering the material on record has considered what could be the fair and reasonable provision and maintenance, that can be awarded to the respondent no.1. The learned Additional Sessions Judge has considered the salary certificate of the petitioner and has come to the conclusion that the petitioner is having sufficient means to make reasonable and sufficient provision for the respondent no.1. Although, the respondent no.1 had sought total maintenance of Rs.20,00,000/- as lifetime maintenance, after considering the material on record and after considering the capacity of the petitioner to pay the same, the learned Additional Sessions Judge came to the conclusion that Rs.5,00,000/- would be a reasonable and fair provision and maintenance for the respondent no.1. As noted earlier, the said judgment and order passed by the learned Additional Sessions Judge has not been challenged by the respondent no.1-wife. No infirmity or perversity could be found in the impugned common judgment and order dated 12.02.2016, warranting interference in writ jurisdiction. The trial ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:50 ::: WP 689/16 7 Judgment Court has rightly came to the conclusion that the petitioner had sufficient means to make a fair and reasonable provision and maintenance of the respondent no.1, considering the inflation.
8. Considering the aforesaid, no interference is warranted in the impugned judgment and order. Accordingly, the petition is dismissed. Rule stands discharged.
9. All parties to act on the authenticated copy of this order.
JUDGE APTE ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:50 :::