Bombay High Court
Sumaiyya Parveen Sheikh Shafique vs Sheikh Shafique Sheikh Gafur on 20 January, 2025
2025:BHC-NAG:1039
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO. 180 OF 2022
PETITIONER : Sumaiyya Parveen Sheikh Shafique,
Aged about 22 years, Occupation:
Household, R/o Lakshmi Nagar, Akot file,
Akola Tq. District Akola.
VERSUS
RESPONDENT : Sheikh Shafique Sheikh Gafur,
Aged about 29 years, Occupation: Service
(C.R.P.F) (C.T. Carpenter), R/o Panchmori,
near Dargah, Akola. At present
c/o Bataliyan No.113, Gaon Dhanura,
District Gadchiroli.
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Mr. M.N.Ali, counsel for the petitioner.
Ms. Nazia Pathan, counsel h/f Mr. S.V.Sirpurkar, counsel for
respondent.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 20/01/2025
ORAL JUDGMENT :
1. Heard.
2. Admit.
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3. Heard finally by consent of learned counsel appearing
for the parties.
4. By this revision application, the petitioner/wife has
challenged the order of rejection of application for grant of
maintenance by the Family Court, Akola, by impugned judgment
and order dated 27/04/2022.
5. The facts of the case show that the petitioner and the
respondent are the husband and wife. Their marriage was
solemnized on 10/02/2019 at Akola as per Muslim Rites and
Customs. After marriage, she resumed cohabitation at the house of
the respondent. It is alleged that due to the ill-treatment at the
hands of the present respondent, she was constrained to leave the
matrimonial house and took shelter at the house of her parents.
Her husband is serving in CRPF and drawing a salary of
Rs. 82,000/-. Despite being a salaried person, he has not made any
arrangements for her maintenance, and therefore, she is
constrained to file an application for grant of maintenance. It is
further alleged that as the respondent insisted her for abort the
child, but she was not willing to abort the child, and thereafter, the
respondent had demanded Rs. 5 lakhs from her. It is further
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alleged that the respondent has forcefully administered some pills
to her, due to which her child was aborted, and the medical papers
to that extent are filed on record.
6. The said application was strongly opposed by the
respondent on the ground that without any sufficient cause, she
has left his company and is staying along with her parents, and
therefore, she is not entitled for any maintenance. It is further
submitted that he is ready to cohabit with her, but she has not
accepted the proposal of the present respondent of joining his
company, and therefore, she is not entitled for any maintenance.
7. After recording the evidence of both sides, the learned
Family Court rejected the application by observing that the entire
application was filed on the ground that it was the present
respondent who insisted her to abort the child and thereafter
administered her some pills, due to which her child was aborted,
but the said fact is not established by the wife by adducing
evidence. Mere producing the documents on record is not
sufficient to prove the said fact, and the sufficient and reasonable
cause for living separately from her husband is not established,
and therefore the application was rejected.
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8. Heard learned counsel Mr. M.N. Ali for the petitioner,
who submitted that the impugned judgment shows that the mere
production of the document by the respondent is considered by the
court, but the same rule of evidence is not made applicable to the
present petitioner, and no opportunity was granted to her to
adduce the evidence to establish that the medical report shows her
child was aborted due to the administration of the said pills. He
prays for remand of the matter by giving her the opportunity to
adduce the evidence.
9. Learned counsel for the respondent submitted that
the reasoning given in the impugned judgment sufficiently shows
that after sufficient opportunity, the petitioner failed to adduce the
evidence to support her contention, and thus, the sufficient and
reasonable cause for staying apart from her husband is not
established by her, and therefore, learned Family Court rightly
rejected the application, and no interference is called for.
10. After hearing learned counsel for the petitioner and
learned counsel for the respondent, perused the impugned
judgment as far as the evidence on record. The entire allegation of
the petitioner is that after marriage, she resumed the cohabitation
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at the house of the present respondent. However, she was not
treated well, and she was insisted for aborting her child, for which
she was not ready. Therefore, the amount of Rs. 5 lakhs was
demanded by the respondent from her parents. It is her specific
case that the respondent has administered some pills and
therefore, her child was aborted. She was admitted to the hospital
and treated for the said reasons. She has produced medical papers
on record, which are not considered. Admittedly, to establish the
fact she has not examined the medical officer or the medical
practitioner, who has treated her for the reason that the child was
aborted as some pills were administered. The impugned judgment
shows that as the petitioner has not established that she is residing
separately from her husband, as the husband has administered her
pill, and therefore her child was aborted. Thus, considering that
though medical papers were there, but it was not proved by the
applicant. Therefore, the maintenance was refused to her. Both
parties have agreed that if the matter is remand back by giving the
opportunity, they would cooperate with the court to dispose of the
application at the earliest. In view of that, one opportunity is
required to be granted to the present petitioner to establish her
case before the Family Court. In view of that, it would be in the
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interest of justice to remand back the application to the Family
Court Akola for consideration of the medical evidence after giving
him the opportunity to the petitioner to adduce the evidence in
support of her contention. In view of that, I proceed to pass the
following order.
a] The criminal revision application is allowed.
b] The Petition No. E-11/2020 filed by the applicant for
grant of maintenance is remanded back to the Family
Court, Akola.
c] The parties to appear before the Family Court, Akola,
on 04/02/2025.
d] The applicant shall adduce her evidence before the
Family Court, and the Family Court shall give an
opportunity to the respondent to cross-examine the
witness. The Family Court shall dispose of the
application at the earliest within three months..
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 03/02/2025 17:36:12
