Delhi High Court

Tayeeb vs Kauhhar & Anr. on 19 January, 2016

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.M.C. 4229/2015 & Crl.M.A. 15143/2015
                                Date of Decision : January 19th, 2016
    TAYEEB                                                 ..... Petitioner
                         Through      Mr.M.T. Malik, Advocate.
                         versus

    KAUHHAR & ANR.                                         ..... Respondents
                Through               None.

           CORAM:
           HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present petition under Article 227 of the Constitution of

India read with Section 482 of the Code of Criminal Procedure, 1973

(hereinafter shall be referred to as the "Cr.P.C.") has been filed by the

petitioner for setting aside the order/judgment dated 02.08.2014,

passed by the learned Principal Judge, Family Courts, South, Saket

Courts, New Delhi and for stay of the proceedings of the Execution

Petition No.27/15, pending in the Court of learned Principal judge,

Saket Courts, New Delhi. Vide judgment dated 02.08.2014, the

respondents-herein have been awarded maintenance of Rs.10,000/-

per month i.e. Rs.5,000/- per month each from the date of filing of the

petition and directed the petitioner-herein to pay the same on or

before the 10th day of each month. He is also directed to clear the

arrears within six months.

2. Factual matrix, emerges from the record, is that the respondent

no.1-wife, namely, Smt. Kaushar and her minor daughter Ms.Ziya/

respondent No.2-herein filed a petition under Section 125 Cr.P.C.

claiming the maintenance @ Rs.25,000/- per month. It was averred in

the petition that the marriage between the petitioner and respondent

no.1-wife was solemnized on 25.02.1996 according to Muslim rites

and customs. In the marriage, the parents of the respondent no.1-wife

spent more than Rs.6,00,000/-. After marriage, the respondent no.1-

wife was taken to her matrimonial home at Meerut and she stayed

there for only three days and thereafter she came back to her parental

home in Delhi. It was agreed between the parties that the respondent

no.1-wife would not go again to her matrimonial house till next three

years as she was only 14 years old. After expiry of the said three

years, the petitioner-husband along with his family members took the

respondent no.1-wife to her matrimonial home. It was alleged that the

petitioner-husband and his parents demanded more cash and dowry

from the respondent no.1-wife and her parents. In the year 1999, due

to certain heart problem, the father of the respondent no.1-wife sold

his house for a consideration of Rs.15,00,000/-. On coming to know

about this, the petitioner-husband started demanding Rs.2,00,000/-

from the father of respondent no.1 for starting a new business.

Thereafter, the respondent no.1-wife was tortured and harassed.

Father of the respondent no.1-wife expired on 08.10.2006 and after

that the respondent no.1-wife gave birth to a male child who died

immediately after birth. In the year 2008, the respondent-wife gave

birth to a girl child/respondent no.2-herein due to which the

respondent-wife was given beatings and she had to reside at her

parental house for about 9-10 months. When she came back to her

matrimonial house, she came to know that the petitioner-husband

eloped with some other girl and he returned back home after a month

along with his second wife. The respondents-herein were thrown out

of the matrimonial house and thereafter, the respondents-herein

started residing in Delhi on rental basis.

3. The petitioner-husband filed the written statement and denied

the averments made in the petition. The learned Principal Judge vide

judgment dated 02.08.2014, allowed the petition and directed the

petitioner-husband to pay the maintenance @ Rs.5,000/- per month

each to the respondents-herein. Thereafter, the respondents-herein

preferred the execution petition for execution of judgment dated

02.08.2014.

4. Feeling aggrieved by the passing of the impugned judgment

and the initiation of execution proceedings, the present petition has

been preferred by the petitioner.

5. The arguments advanced by the counsel for the petitioner are

that the petitioner had filed a case for restitution of conjugal rights in

the Family Courts, Meerut, Uttar Pradesh which is pending for

disposal. It is further argued that the Trial Court has failed to

appreciate that the respondent no.1 herself admitted that she had gone

back to her native place i.e. Secunderabad, Bulandshahar, U.P. where

her family members were residing. In the petition, the address of

New Delhi was given by the respondent no.1-wife just to create

jurisdiction of the Courts at Delhi, whereas the Courts at Delhi have

no jurisdiction to try the case as it was contended by the petitioner

that the respondent no.1-wife was a permanent resident of

Bulandshahar, U.P. It is further submitted that the petitioner-herein

did not appear before the Trial Court after filing of the written

statement as he was under the impression that mere filing of the

written statement was sufficient to place all the facts on record.

6. It is not in dispute that the marriage of petitioner with the

respondent no.1 was solemnized. The petitioner has also not disputed

the birth of the girl child i.e. respondent no.2-herein out of the said

wedlock. It was specifically contended by the respondent no.1-wife

in her petition that the petitioner-husband is running his business of

Ayurvedic Medicines Store and is also running a school in the name

and style of Asif Sagar School. From his sources, the petitioner-

husband is earning a sum of Rs.40,000/- per month. It was further

contended that the respondent no.1-wife has no source of income to

maintain herself and her girl child.

7. The petitioner-husband filed the written statement and denied

the case of the respondent no.1-wife. But the fact remains that after

filing of the written statement, he did not appear in the Court. He

chose to stay away from the proceedings and had not contested the

same.

8. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, the Hon'ble

Apex Court held that :

"Section 125 CrPC 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 Kaushal15 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 13 (1997) 7 SCC 7 14 (2008) 2 SCC 316 15 (1978) 4 SCC 70 16 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 Gujarat16."

9. In Shamima Farooqui v. Shahid Khan, AIR 2015 SC 2025 it

was held that :

"From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny."

10. In view of the facts and circumstances discussed above and the

laws laid down in Chaturbhuj's case (supra) and Shamima

Farooqui's case (supra), this Court is of the considered opinion that

Section 125 Cr.P.C. is a measure of social justice and has been

enacted to protect women and children who have been deserted by the

husband so that they are able to maintain themselves. It has been

inserted keeping in view the guarantee enshrined in Article 15(3) and

39 of the Constitution of India. It provides a speedy remedy for the

supply of food, clothing and shelter to the deserted wife. By entering

into a marriage, the husband is duty bound to maintain and support his

wife and children who have been deserted. The underline principle of

Section 125 Cr.P.C. is loud and clear. It is based on a principle that