Jharkhand High Court
Afrozi Khatoon Widow Of Late Md. Farid vs Aasma Asmin W/O Md. Jamil Akhtar on 5 January, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 221 of 2017
Afrozi Khatoon Widow of Late Md. Farid, R/o Kurpania, P.O. &
P.S. - Bermo, District - Bokaro ... ... Petitioner
Versus
1. Aasma Asmin W/o Md. Jamil Akhtar
2. Md. Wasim Akhtar S/o Md. Jamil Akhtar
3. Shagufta Asmin D/o Md. Jamil Akhtar
4. Sahela Tabasum D/o Md. Jamil Akhtar
All Resident of Quarter No.329 (M), Village - Kurpania,
Panitanki, Area Bermo, P.O. - Sandebazar, P.S. - Gandhi Nagar,
District - Bokaro at present residing at Eslamulaq, Village -
Jalwabad, P.O. & P.S. - Koderma, District - Koderma
5. State of Jharkhand
6. Md. Jamil Akhtar, S/o late Farid, Q No.- 329 (M), Village -
Kurpania, Panitanki, Area Bermo, P.O. Sandebazar & P.S. Gandhi
Nagar, District - Bokaro at present R/o Eslamulaq, village
Jalwabad, P.O. + P.S. - Koderma & District - Koderma.
... ... Opposite Parties
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mrs. Nalini Jha, Advocate
For the Private Opp. Parties : Mr. A. Allam, Senior Advocate
: Ms. Sushmita Kumari, Advocate
: Ms. Sonam, Advocate
For the State : Mr. Arup Kumar Dey, APP
---
08/05.01.2024 Heard the learned counsels for the parties.
2. This criminal revision has been filed against the judgment dated
24.11.2016 in Maintenance Case No.70 of 2009 passed by learned
Principal Judge, Family Court, Koderma.
3. Learned counsel for the petitioner while assailing the order
impugned has submitted that the amount that was fixed as STDR in
the name of the petitioner and her family members was the amount of
'Den Mehar' and no maintenance could have been awarded
concerning any interest of the amount of STDR accruing on the same.
4. The learned counsel has submitted that the applicant-wife had
applied on behalf of herself and her three children out of them, two
have become major and they are earning pretty well and, therefore,
maintenance granted to the major children cannot be sustained in the
eyes of law. However, during the course of arguments, the learned
counsel for the petitioner has submitted that the two children have
become major during the pendency of the present case.
5. The learned counsel for the State has opposed the prayer of the
petitioner.
6. The learned counsel appearing on behalf of the private opposite
parties has also opposed the prayer of the petitioner and has submitted
that the petitioner had earlier moved this Court in Criminal Revision
No.639 of 2011 which was disposed of on 27.11.2014 and the matter
was remanded back to the learned court below for passing fresh order.
The said criminal revision was allowed on the ground that the
petitioner was not made a party in the maintenance case although she
was the joint owner of the STDR. The learned counsel submits that
after the order of remand, the petitioner did not participate in the
proceedings and a fresh order has been passed, therefore, there is no
illegality in the order impugned, which does not call for any
interference. He has also submitted that the case of maintenance was
filed as back as in the year 2009 and not even a penny of the
maintenance has been ultimately come to the applicants of the
maintenance case.
7. After hearing the learned counsels for the parties and
considering the facts and circumstances of this case, it is not in dispute
that a fresh order of maintenance has been passed after the matter was
remanded to the learned court below for fresh consideration at the
instance of the present petitioner who had filed Criminal Revision
No.639 of 2011 and the said case was disposed of on 27.11.2014,
interalia, with the following findings and directions:
"11. In view of the discussions made above, it is evident that the
trial court has committed an error in law and on fact by giving a
finding that the petitioner had not been able to prove that the
said Fixed deposit was in terms of 'dain mehar' given to her
husband without noticing her and by ordering that the
maintenance amount to be paid from STDR amount which was
fixed in the name of petitioner and her two sons. The trial court
at least should have noticed the petitioner-wife before giving a
finding on this aspect when her interest is being infringed.
Apparently the finding has been given in absence of any
evidence to this effect or an opportunity of hearing to the
petitioner. Accordingly, the impugned order is not sustainable
and is hereby set aside.
12. The matter is remitted to the court below and the
parties are at liberty to adduce evidence and the court below,
after giving an opportunity of hearing to the parties, shall pass
order in accordance with law.
13. With the said observations and directions this revision
is hereby disposed of."
8. The learned court below has recorded that in compliance with
the direction of the High Court, Aforzi Khatoon was noticed, and she
appeared on 02.02.2015 and filed a petition. It has also been recorded
that in view of the High Court's direction, the parties were directed to
adduce evidence, if any, in support of their respective claims.
However, in utter disregard of the High Court's direction, Aforzi
Khatoon did not adduce any evidence in support of her claim that the
amount of Rs.5,00,000/- kept in fixed deposit was given as 'Den
Mehar' by her husband. It is not in dispute that Aforzi Khatoon (the
petitioner) thereafter did not appear before the learned court below
and ultimately the learned court below passed a fresh order as quoted
above.
9. The perusal of the impugned order reflects that the applicants,
in support of their case, presented a total of three witnesses. Amongst
them, A.W.1 Eslamul Haq, the father of applicant No.1, A.W.2 Aasma
Aasmin, applicant No.1 herself, and A.W.3 Wasim Akthar, applicant
No.2 himself, were examined. In addition to the oral evidence, certain
documents were submitted on behalf of the applicants.
10. The learned court below considered the oral and documentary
evidence and ultimately recorded findings at paragraph nos.11 and 12
as follows:
"11. After having heard the learned counsel for the parties
and upon considering the evidence available on record, I am
satisfied to find and hold that admittedly the applicant No.1 Asma
Ashmin is the legally wedded wife of the opposite party Md. Jamil
Akhtar and their marriage was solemnized on 23.04.1998 as per
Muslim rites & custom. It is also admitted that out of their wedlock
a son namely, Md. Washim Akhtar and two daughters namely,
Shagufta Ashmin and Saleha Tabasum were born and at present
they are aged about sixteen years, thirteen years and twelve years
respectively. Admittedly the applicant along with her son and
daughters is not living with the opposite party-her husband in her
matrimonial house since 6-7 years. It has been alleged that the
applicant herself left her matrimonial house by taking huge amount
from the grocery shop of the O.P. but nothing has been brought on
record to show that in fact she had voluntarily left her matrimonial
house and she has kept a huge amount of the earning by grocery
shop. The opposite party has although averred in his show-cause
that he is ready and willing to keep his wife and children with him
but his conduct has exposed him. It has been alleged that the
applicant dishonestly collected money from his shop's income and
wanted to debar the brother of O.P. from the income of shop.
Admittedly, no document has been brought on record in this regard
to prove the said fact but from his admission it can be safely
inferred that at that time O.P. had joint family and much after the
expulsion of the applicant from his house partition took place
amongst the brothers. Thus, there appears ample evidence on the
record on the basis of which it can be safely presumed that the
opposite party has refused and neglected to maintain the applicant
his wife and his minor children. It can also be presumed that in the
facts and circumstances of the case now there is no scope for
restitution of their conjugal rights and therefore, the applicants are
held entitled for maintenance allowance from the O.P.
So far the quantum of maintenance allowance is
concerned, there is no any document to show authentically
regarding the business and income of the O.P at present. But in
view of Ext.1 and Ext. 1/1 it can be safely held that the O.P has
substantial source of income from landed properties left by her
deceased father. Similarly, from the oral evidence adduced on
behalf of the applicants, it can be held that the opposite party has
substantial income from the grocery shop and rent from his house
at Islampur, Gaya. The O.P. himself has averred that he executed
registered sale deed of his land at Hazaribagh and rest lands were
also given to the children's of O.P by way of "Wasiyat" (will) and
all the documents are in possession of the applicant No.1.
Although, this fact has not been proved by any cogent evidence but
it can be inferred that he had landed property at Hazaribagh. Apart
from that nowadays it is almost well settled that "an able bodied
young man has to be presumed to be capable of earning sufficient
money so as to be able to maintain his wife and child and he can
not be heard to say that he is not in a position to earn enough to be
able to maintain them...It is for such able bodied person to show to
the court cogent grounds for holding that he is unable to, due to
reasons beyond control, to earn enough to discharge his legal
obligation of maintaining his wife and child..."
Keeping in view the aforesaid settled principles of law
and the discussions made above, it is amply clear that the opposite
party is an able bodied person and has sufficient means to provide
for the maintenance to the applicant-wife as per the mandate of
law. Be that as it may, the O.P. cannot shirk his legal and moral
responsibility to provide support by paying the maintenance
amount to the applicant-wife and minor children. In view of the
provisions of law it is the moral and legal duty of the opposite party
to fulfill his social obligation by providing for the maintenance of
applicant-wife and his children.
12. Having regard to the aforesaid facts and circumstances
of the case coupled with the evidence on record, I am satisfied to
find and hold that the applicants have been able to prove their case
and they are entitled for maintenance allowance from the opposite
party as per provisions contained u/s 125 of Cr.PC. Keeping in
view the income of the opposite party and the economic inflation at
present, it is hereby
ORDERED
That the O.P. Jamil Akhtar shall make payment of a sum
of Rs. 5,000/- (Rupees five thousand only) per month to the
applicant No.1 Ashma Ashmin, his wife and Rs. 2,000/- per month
each to the applicant Nos.2, 3 & 4, his son namely, Md. Washim
Akhtar and two daughters namely, Shagufta Ashmin and Saleha
Tabasum for their maintenance from the date of the order of the
case i.e 24.11.2016. It is hereby further ordered that 1/3rd of the
quarterly accruing interest of the fixed deposit of Rs. 5 lacs having
STDR No. 01291006032 (now changed to No. 1147800781 in CBS
system) in the name of Afrozi Khatoon, Jamil Akhtar and Shamim
Akhtar shall be paid to the applicants. It is made clear that the
principal amount of the said fixed deposit shall not be allowed to be
encashed by anyone even after its maturity and it will be renewed
from time to time so that maximum benefit of the accrued interest
of the same would be available for the maintenance of the
applicants. The opposite party is further directed to make the
payment of remaining sum of maintenance allowance within a
period of thirty days from the date of this order, failing which the
applicants shall have right to get the maintenance allowance
through the process of the court. The opposite party is also directed
to make the payment of maintenance allowance to the applicants of
each month in the first week of every next month of the calendar
year."
11. So far as the point that the amount of STDR was a part of 'Den
Meher' is concerned, the same is essentially a question of fact and the
petitioner having not contested the case before the learned court below
despite remand, cannot raise such an issue in revisional jurisdiction.
So far as the case of the petitioner that two dependent children out of
the three have become major and have good sources of livelihood, this
aspect of the matter also cannot be adjudicated under revisional
jurisdiction. The petitioner has a remedy in terms of Section 125 (3) of
the Code of Criminal Procedure for seeking appropriate relief before
the learned court below.
12. The Hon'ble Supreme Court in the case of Bakulabai and
Another Vs. Ganga Ram and Another reported in (1988) 1 SCC 537
at paragraph no.7 was of the view that in circumstances where no error
of law is discovered in the judgment passed under Section 125 of the
Code of Criminal Procedure, the revisional court is not justified in
making a reassessment of evidence and substitute its views.
13. This Court has gone through the impugned order and finds that
the same is a well-reasoned order considering every aspect of the
matter. No illegality or perversity as such has been pointed out by the
learned counsel for the petitioner seeking any interference in the order
impugned.
14. The interim order granted vide 01.05.2017 has already been
vacated by this Court vide order dated 28.09.2021.
15. This criminal revision is accordingly dismissed.
16. Let this order be communicated to the court concerned through
FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Saurav
