Smt. Vakila & Another vs State Of U.P. & Another
2016 Latest Caselaw 7678 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                 RESERVED
 

 
Court No. - 44
 

 
Case :- CRIMINAL REVISION No. - 3375 of 2008 
 

 
Revisionist :- Smt. Vakila & Another 
 
Opposite Party :- State Of U.P. & Another 
 
Counsel for Revisionist :- S.S. Shah,Sushil Kumar Shukla 
 
Counsel for Opposite Party :- Govt. Advocate,Sushil Kumar Pandey 
 

 
Hon'ble Amar Singh Chauhan,J. 

This criminal revision has been preferred against the judgement and order dated 24.9.2008, passed by the Judicial Magistrate-Ist Class, Baghpat in Case No. 986 of 2008 (Smt. Vakila and another vs. Isab Ali alias Bhura) under section 125 Cr.P.C., Police Station Baraut, District Baghpat whereby the application of the revisionist-applicant no. 1 Smt. Vakila moved under section 125 Cr.P.C. for maintenance, was rejected.

The facts which are requisite to be stated for adjudication of this revision are that an application under section 125 Cr.P.C. was moved by Smt. Vakila on behalf of herself and her minor daughter Km. Nargis on the ground that marriage of revisionist no. 1 and opposite party no. 2 was solemnized in the year 1983 in accordance with Muslim Rights and Customs in which 152.5 tola silver was fixed as Mehar. After the marriage the applicant-revisionist no. 1 came to live at her matrimonial house in District Muzaffar Nagar and performed her marital obligation towards her husband and other family members to the satisfaction of all concerned and all family members and husband were pleased with the behaviour and working of the applicant no. 1. That for some time all went well but after some time the opposite party no. 2 and other family members started taunting and ill treating Smt. Vakila, applicant no. 1 for bringing for sufficient dowry. In the mean time, the opposite party no. 2 applied for the post of Constable in Border Security Force (B.S.F.) and for that purpose Rs. 50,000/- was demanded from the parents of the applicant no. 1. In order to support, Rs. 50,000/- was given in cash to the opposite party no. 2. The opposite party no. 2 was selected in B.S.F. and from the wedlock a daughter was borne out in the year 1987. Due to birth of female child, the husband of applicant-revisionist no. 1 started sarcasting remark and used to ill treat her female child and after some time for want of proper care and treatment female child died. With the consent of Smt. Vakila, applicant-revisionist no. 1, the opposite party no. 2 adopted one female child namely Nargis. In the year 2005, the opposite party no. 2 married further with one Shakila without obtaining consent of Smt. Vakila. Out of wedlock of the opposite party no. 2 and Shakila one male child was born in the year 2006 and due to birth of the male child, the position of applicant no. 1 became more worse and she was beaten up petty issues by the husband and other family members. Ultimately, she was ousted from the house of her husband on 01.07.2007. Thereafter she along with her father came back in Maika. Since the time of her return the opposite party no. 2 had not taken any care of applicant no. 1 and 2 and no maintenance was given. Her husband is getting salary Rs. 20,000/- per month. The applicant no. 1 is unable to maintain herself and her daughter. She tried many times to contact her husband but her husband refused to either take her back or to maintain hence finding no other alternative the applicant no. 1 filed an application under section 125 Cr.P.C. to get maintenance.

The opposite party no. 2 filed written objection denying the allegation and stated that his marriage was performed without dowry. He neither made any comments nor taken Rs. 50,000/- for recruitment. According to Muslim law, there is no provision of adoption and after taking divorce from the applicant, he contracted the second marriage with Shakila. On 25.4.2005, He had given divorce by saying Talak, Talak, Talak and also handed over her articles, Mehar and maintenance during Iddat. Applicant no. 2 is not entitled to get maintenance. He is getting salary near about Rs. 7,000/- per month.

After hearing the parties learned Judicial Magistrate-Ist Class, Baghpat and evaluating the evidence comes to the conclusion that applicant-revisionist is living separately without sufficient cause and, therefore, rejected the application.

Heard Sri Sushil Kumar Shukla, learned counsel for the revisionists as well as learned AGA but none appeared for opposite party no. 2.

Learned counsel for the revisionists submitted that lower court below did not record any finding regarding neglect or refusal on the part of the husband and by putting whole blame on the revisionist, rejected the application filed under section 125 Cr.P.C. The court below failed to appreciate the fact of the continuous torture and harassment by the opposite party no. 2 is a sufficient cause for living separately. The revisionist has no sufficient mean to maintain herself and she is at the stage of starvation. It is further submitted that she was never divorced by her husband.

In this revision, the main point of determination is that whether the opposite party despite having sufficient means neglect or refuse to maintain his wife. More than there is sufficient reasons before the revisionist to live separate from her husband and there is effective divorce between the parties and if so, its effect.

Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.:

Order for maintenance of wives, children and parents

125. (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct."

From perusal of the aforesaid provisions, it is clear that an order under section 125 Cr.P.C. 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 as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. 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.

Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The Court held as under:

"Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636.

A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.

In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:

"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."

After going through the record, it is clear that revisionist has left the house of her husband on being harassed and tortured by the opposite party no. 2. Almost no wife is supposed to leave the house of the husband without any rhyme or reason. Wife's right to claim maintenance can be denied in the circumstances only provided under section 125(4) Cr.P.C. which runs as follows:

Section 125(4)- No wife shall be entitled to receive an allowance [for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

In the case, in hand the applicant-revisionist no. 1 and opposite party no. 2 opened a joint account in the State Bank of India after the very date 25.4.2005 on which triple Talak is said to have been given. Divorce is said to be given by saying the word Talak, Talak, Talak. Her name was also enlisted in the voter list after the above mentioned date of Talak. It is also a question of fact that opposite party no. 2 has filed his suit for divorce before the Civil Judge Senior Division, Muzaffarnagar. The aforesaid points inspired that there is no effective divorce given by the opposite party no. 2 to the applicant-revisionist.

So far as validity of triple Talak given by opposite party no. 2 is concerned the Hon'ble Supreme Court in Shamim Ara vs. State of U.P., 2002 Cri.L.J. 4726 SC has held as under:

"the correct law of Talak, as ordained by Holy Quran, is: (I) that 'talaq' must be for a reasonable cause, and (ii) that it must be preceded by an attempt to reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected."

But in the case in hand, pre-requisite conditions are not fulfilled, therefore, the said Talak cannot be given effect to. The plea of triple Talak was taken first time in written statement by the husband-opposite party. It was held in case of Wali Mohammed vs. Batulbai 2003 Cr.L.J. 2755 M.P. (F.B.) that mere setting of plea of previous divorce in written statement is no proof of divorce so as to disentitle her from claiming maintenance under section 125 Cr.P.C.

The Hon'ble Supreme Court in Laxmi Bai Patel vs. Shyam Kumar Patel 2002 (44) ACC 1102 SC has held as under:

"To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under sub-section (4) of the said section."

Principle is that when prima facie marriage is established, maintenance should be awarded because section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The object is to achieve social purpose and to prevent vagrancy and destitute.

The applicant-revisionist is trying to get maintenance through this application since 2008 but not even a single penny in lieu of maintenance has been received from her husband. The proceeding under section 125 Cr.P.C. provides a speedy remedy for supply of food, clothing and shelter to the deserted wife whereas the opposite party no. 2 has failed to establish that applicant-revisionist without any sufficient reason refused to live with him.

In view of what has been indicated above, the impugned order passed by the Judicial Magistrate-Ist Class, Baghpat is not justified. Therefore, the impugned order is not liable to be sustained.

The revision is allowed.

The impugned order, passed by the Judicial Magistrate-Ist Class, Baghpat in Case No. 986 of 2008 (Smt. Vakila and another vs. Isab Ali alias Bhura) is hereby set aside and the matter is remanded back to the court concerned for decision afresh expeditiously after hearing the both parties.

Office to communicate this order to the court concerned.

Order Date :-21.12.2016

Puspendra