Bombay High Court
Shahebaz Khan Sarwar Hayat Khan Alias ... vs Fatema Tarannum Shahebaz Khan And ... on 20 September, 2025
2025:BHC-AUG:25778
901-REVN-254-25.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 254 OF 2025
WITH
CRIMINAL APPLICATION NO. 3105 OF 2025
Shahebaz Khan Sarwar Hayat Khan
@ Naim Khan ..APPLICANT
VERSUS
Fatema Tarannum Shahebaz Khan and Another ..RESPONDENTS
....
Mr. Hasrat Khan Z.K. Pathan, Advocate for the applicant
....
CORAM : ABHAY J. MANTRI, J.
DATE : 20th SEPTEMBER, 2025
ORAL JUDGMENT:
1. Heard finally at the admission stage.
2. The applicant has preferred the revision application challenging
the judgment and order dated 04th July, 2025, passed by the learned Principal
Judge of the Family Court, Aurangabad, in Petition No. E-280 of 2023
whereby the applicant-husband is directed to pay maintenance to
Respondent No.1 - wife and Respondent No.2 - son of Rs. 5,000/- per month
each from the date of filing the petition.
3. At the outset, it appears that the respondents, being the wife and
son of the applicant, filed an application for the grant of maintenance under
Section 125 of the Cr. P. C. against the applicant. The learned Judge, after
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considering the evidence on record, held that the applicant is liable to pay
maintenance of Rs. 5,000/- each per month to the respondents from the date
of the application and accordingly passed the impugned order.
4. It is pertinent to note that the applicant is not disputing his
relationship with the respondents, i.e. Respondent No.1, as is his wife, and
Respondent No.2, as is his son. Similarly, he does not dispute the fact that he
is liable to maintain the respondents. His contention is only that he does not
have sufficient means to maintain the respondents. He further argued that
the learned Family Court has neither considered those facts nor appreciated
the material on record in its proper perspective, and erred in holding to grant
maintenance of Rs. 5,000/- per month to each respondent.
5. He further drew my attention to the relieving-cum-experience
letter annexed with the petition (pg.no.40) and submitted that the applicant
has been jobless since July 2022. Similarly, due to the filing of the criminal
case against him, nobody is giving him a job, and therefore, he is unable to
earn money. As such, he urged setting aside the impugned judgment and
order.
6. Having considered the submissions of learned counsel for the
applicant, as well as after going through the impugned judgment and record,
it is evident that the applicant is not disputing that he is liable to pay the
maintenance to the respondents. Similarly, the relieving-cum-experience
letter produced on record indicates that he was earning an amount of Rs.
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18,000/- per month. It is not disputed that the applicant is a graduate and an
able-bodied person who can earn money. However, the applicant has not
adduced cogent and reliable evidence to show that he is unable to earn
money or maintain the respondents. The learned Judge while considering the
aspect of the income of the applicant in paragraph no.8 of the impugned
judgment has dealt with the material on record and held that in absence of
the income proof of the applicant, it was necessary to grant maintenance of
Rs.5,000/- to the respondents considering basic needs of them for food,
clothing, medical expenses, etc. and further needs for the son i.e. nurturing,
clothing and health care, and therefore, granted maintenance. However,
learned counsel for the applicant failed to point out that the said finding is
manifestly perverse. Moreover, nothing perceptible shows that the order is a
sanctuary of error. In fact, the order is passed on proper appreciation of
evidence. It is pertinent to note that it is an obligation of the husband to
maintain his wife and children. It is not permitted for him to plead that he is
unable to maintain them due to financial constraints, as long as he is capable
of earning. It is to be noted that the husband is duty-bound to maintain his
wife and son, and for their day-to-day livelihood, he is duty-bound to provide
a maintenance amount to his wife and son to live their life as per his status.
In such an eventuality, it is necessary to grant maintenance to them. Besides,
judicial notes can be taken that there is a rise in the prices of essential
commodities. Therefore, the maintenance amount granted to the respondents
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also appears to be too meagre to satisfy their daily needs.
7. Apart from that, it is apparent that though the applicant appeared
in the matter, he has not examined himself and filed the evidence closing
pursis. He has neither entered into the witness box nor denied the
contentions of the affidavi as well as the evidence of Respondent No.1. Had
it been the fact that he is jobless and not earning any amount, then certainly
he would have entered the witness box and depose the same and also denied
the contentions of Respondent No.1. But non-entering into the witness box
itself denotes that the applicant is not disputing the contentions and evidence
of Respondent No.1. Therefore, there is no reason to disbelieve her
contentions.
8. It is pertinent to note that Section 125 of the Code of Criminal
Procedure is a social welfare provision, which must be subjected to an
extensive beneficial concern, and this understanding has been extended to
maintenance. Similarly, it must be borne in mind that the right to
maintenance under Section 125 of the Code of Criminal Procedure is not a
benefit received by the wife but rather a legal and moral duty owed by the
husband to maintain his wife and son. Undoubtedly, the wife and son do not
reside with the husband, and the husband does not pay them anything for
their maintenance. This itself is sufficient to grant maintenance to them.
9. Thus, on perusal of the record and the impugned order, it appears
that the applicant has failed to maintain the respondents when he has
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sufficient means to maintain them. As such, the order passed by the learned
Judge appears just and proper. Hence, I do not find substance in the
contentions of learned counsel for the applicant to interfere in the impugned
judgment and order
10. As a result, the revision application being devoid of merit, stands
dismissed. No order as to costs. Inform the order to the learned Family
Court.
11. In view of the dismissal of the revision application, nothing
survives in the criminal application; hence, the same stands disposed of
accordingly.
( ABHAY J. MANTRI, J. )
SSD
