Bombay High Court
Elaz Gaysoddin Shaikh vs Femidabi Ejaz Shikh on 5 December, 2016
Bench: V.K. Jadhav
1
13 CRI. WRIT PETITION NO.292 OF 2009.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 292 OF 2009
Ejaz Gaysoddin Shaikh,
Age 64 yrs, Occ. Nil,
R/o House No.56, Gulshan Society,
Chalisgaon Road, Dhule,
Tq. & Dist. Dhule. ... PETITIONER
(Orig. Petitioner/Opponent)
V E R S U S
Femidabi Ejaz Shaikh,
Age 52 yrs, Occ. Household Work,
R/o C/o Kamruddin Abdul Shaikh,
Shani Nagar, Moglai, Dhule,
Tq. & Dist. Dhule. ... RESPONDENT
(Orig. Respondent/Applicant)
...
Mr. M. H. Patil, Advocate for the Petitioner.
Mr. B. S. Shriram, Advocate for the Respondent.
...
CORAM : V. K. JADHAV, J.
DATE : 05th December, 2016.
ORAL JUDGMENT:
. Being aggrieved by the judgment and order passed by the
Judicial Magistrate First Class, (Court No.2), Dhule dated 27th
February, 2006, in Criminal Miscellaneous Application No.110 of 1999
13 CRI. WRIT PETITION NO.292 OF 2009.odt
and the judgment and order passed by Additional Sessions Judge,
Dhule dated 27th November, 2008, in Criminal Revision Application
No.54 of 2006, the original opponent has filed the present criminal writ
petition.
2 Brief facts giving raise to the present criminal writ petition
are as follows:
i.
Respondent / divorced wife has filed an application under
Sections 3 and 7 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 (hereinafter referred to as
"the Act of 1986") for reasonable and fair provision of
maintenance. It has contended in the said application that
the marriage with present Petitioner was performed on 11th
December, 1995 and Mehr of amount of Rs.2,500/- was
fixed in the marriage. Further the household Dahej articles
vide Exhibit - 33 came to be given. It has further
contended in the application that at the instance of first
wife of Petitioner, the Respondent / wife was subjected to
cruelty. Even on one occasion, the Petitioner / husband
had tried to kill her. Respondent / wife, therefore,
13 CRI. WRIT PETITION NO.292 OF 2009.odt
constrained to initiate maintenance proceedings being
Criminal Miscellaneous Application No.129 of 1997.
However, in the said proceedings, it was found that the
Petitioner / husband had given Talaq to Respondent / wife.
Consequently, this application came to be filed under the
provisions of the Act of 1986.
ii. The Petitioner / husband has strongly resisted the said
application by filing his say at Exhibit - 8. It has
contended that the first wife of the Petitioner / husband is
bedridden and therefore, he has performed the second
marriage with the Respondent / wife only with an intention
that she would look after his first wife. However, the
Respondent / wife had not taken care of his first wife.
Even she used to go to her parent's house. Furthermore,
she on her own went to her parent's house and filed a
complaint against the Petitioner / husband under Section
498-A of the Indian Penal Code. Thus, he gave Talaq to
her in presence of Panchas. He also came to be acquitted
in the said complaint filed under Section 498-A of the
Indian Penal Code. Her maintenance proceedings being
13 CRI. WRIT PETITION NO.292 OF 2009.odt
Criminal Miscellaneous Application No.129 of 1997, also
came to be disposed of. Thus, the Respondent / wife has
filed false application seeking fair provision of her
maintenance.
3 Both the parties led oral and documentary evidence in
support of their rival contentions. The learned Magistrate vide its
judgment and order as aforesaid, partly allowed the application and
thereby directed the Petitioner / husband to make a reasonable and
fair provision of maintenance to the tune of Rs.1,50,000/-. Being
aggrieved by the same, the Petitioner / husband has filed Criminal
Revision Application No.54 of 2006 and by the impugned order dated
27th November, 2008, the learned Additional Sessions Judge, Dhule
has partly allowed the said revision application and thereby reduced
the fair amount of maintenance from Rs.1,50,000/- to Rs.1,00,000/-.
Hence, the Petitioner / husband filed this criminal writ petition and the
learned counsel submits that the criminal writ petition is restricted to
the extent of quantum of maintenance.
4 The learned counsel for the Petitioner submits that there
is no income proof of the Petitioner / husband. The Respondent / wife
13 CRI. WRIT PETITION NO.292 OF 2009.odt
has failed to prove before the Courts below that the Petitioner /
husband is working as an estate agent and he gets income of
Rs.50,000/- to Rs.60,000/- per month. Even the learned Additional
Sessions Jude, Dhule has observed that the Respondent / wife has
exaggerated the income of the Petitioner / husband. The learned
counsel submits that the Petitioner / husband was 52 years of age at
the time of recording his evidence, however, at present he is more
than 70 years of age. The learned counsel submits that the Petitioner
/ husband is not in a position to pay the amount as directed by the
Revisional Court. The learned counsel for the Petitioner / husband
submits that pending this writ petition, the Petitioner / husband has
deposited Rs.50,000/- before this Court and the same has been
withdrawn by the Respondent / wife. In the alternate, the learned
counsel for the Petitioner submits that the Petitioner / husband is
ready to pay the remaining amount as directed by the Revisional
Court, if reasonable installments are granted.
5 The learned counsel for Respondent submits that the
Respondent / wife has stated on oath before the Court that the
Petitioner / husband is working as an estate agent and getting income
13 CRI. WRIT PETITION NO.292 OF 2009.odt
of Rs.50,000/- to Rs.60,000/- per month. Furthermore, the Courts
below have accepted that the Petitioner / husband is having his own
house. The learned counsel submits that the Respondent / wife has
no independent source of income and she is entirely depending upon
the amount determined by the Courts below as a reasonable and fair
provision of her maintenance. No interference is required.
Since this writ petition is restricted to the extent of
quantum of maintenance, both the Courts below have observed that
the Petitioner / husband is in a position to pay the maintenance to the
Respondent / wife. The learned Additional Sessions Judge has
observed that the Respondent / wife has exaggerated the income of
the Petitioner / husband and accordingly, reduced the maintenance
amount from Rs.1,50,000/- to Rs.1,00,000/-, I do not find any fault
with the judgment and order passed by the learned Additional
Sessions Judge, Dhule.
7 So far as the alternate prayer of paying the amount in
installments is concerned, considering the age of the Petitioner /
husband, I am inclined to accept the said request. Hence, the
following order:
13 CRI. WRIT PETITION NO.292 OF 2009.odt
O R D E R
I. The criminal writ petition is hereby dismissed with the
following directions:
The Petitioner / husband shall pay the
remaining amount of Rs.50,000/- (Rupees Fifty
Thousand only) in ten installments of
Rs.5,000/- (Rupees Five Thousand only) each
to be payable on 10th day of every month,
before the Magistrate after four weeks from the
date of this order.
II. Criminal writ petition is accordingly disposed of. Rule
discharged.
[ V. K. JADHAV, J. ]
ndm
