Karnataka High Court
Smt.Ummesalma W/O. Israullhaq ... vs Sri.Israrulhaq Zahiruddin ... on 30 May, 2022
Bench: E.S.Indireshpresided Byesij
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RPFC No. 100019 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REV.PET FAMILY COURT NO. 100019 OF 2019 (-)
BETWEEN:
SMT.UMMESALMA W/O. ISRARULHAQ NAMAKWALE
AGE:31 YEARS, OCC:NIL,
R/O. C/O. TAJUDDIN A MUJAWAR,
H.NO.4323/D, GHEE GALLI,
BELAGAVI.
...PETITIONER
(BY SRI. N S PATTAR.,ADVOCATE)
AND:
SRI. ISRARULHAQ ZAHIRUDDIN NAMAKWALE
AGE:34 YEARS, OCC:ELECTRICAL CONTRACTOR,
R/O. PLOT NO.13,VI CROSS,
AZAM NAGAR,
BELAGAVI.
Digitally
signed by ...RESPONDENT
VN
VN BADIGER
BADIGER Date:
(NOTICE TO RESPONDENT SERVED)
2022.06.02
11:23:48
+0530 THIS RPFC FILED UNDER SEC.19(4)
OF THE FAMILY COURT
ACT, 1984, AGAINST THE JUDGMENT AND ORDER DATED
21.12.2018, IN CRL.MISC. NO.517/2015, ON THE FILE OF THE
FAMILY COURT JUDGE, BELAGAVI, DISMISSING THE PETITION FILED
UNDER SEC.125 OF CR.P.C.
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RPFC No. 100019 of 2019
THIS PETITON COMING ON FOR ADMISSON THIS
DAY, THE COUR T MA DE THE FOL LOWI NG:
ORDER
1. In this revision petition, petitioner has assailed the
order 21/12/2018 passed in Crl.Misc.No.517/2015 on the
file of the Prl. Judge, Family Court, Belagavi, dismising the
petition.
2. The relevant facts for the adjudication of the petition
are that the marriage between the petitioner and the
respondent had taken place on 6/10/2013 at Empire
marriage hall, Veerbahdra Nagar, Belagavi in accordance
with the customs of the parties. It is the case of the
petitioner that the respondent started harassing and
neglecting the petitioner and accordingly, the Petitioner left
the matrimonial home and started residing with the
parents. It is further stated in the claim petition that, the
petitioner was constrained to leave the matrimonial home
as the respondent and his mother have demanded dowry
and the same was not meted out by the father of the
RPFC No. 100019 of 2019
petitioner and further the respondent mentally and
physically harassed the petitioner and as such petitioner
was constrained to file Crl.Misc. No.517/2015 on the file of
the Family Court, Belagavi, seeking maintenance.
3. On service of notice, the respondent entered
appearance and filed detailed objections denying
averments made in the claim petition. In order to prove
their case, the petitioner was examined as PW.1 and
produced 4 documents and the same were marked as
Ex.P.1 to Ex.P.4. The respondent examined three witnesses
as RW.1 to RW.3 and produced 13 documents which were
marked as EX.R.1 to EX.R.13. The Family Court, after
considering the material on record, by order dated
21/12/2018, has dismissed the petition. Feeling aggrieved
by the order of the Family Court, the petitioner has
presented this petition.
4. I have heard the learned counsel appearing for the
parties.
RPFC No. 100019 of 2019
5. Learned counsel appearing for the petitioner
contended that the petition came to be dismissed by the
Prl. Judge, Family Court, Belagavi on the ground that the
respondent is having physical disability and it is not the
basis to deny legitimate maintenance to the wife.
Accordingly, he sought for interference of this Court.
6. Per contra, learned counsel appearing for the
respondent sought to justify the impugned order.
7. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully
examined the appreciation of the evidence by the Family
Court. It is not in dispute that the marriage of the
petitioner with the respondent had taken place on
6/10/2013 at Empire marriage hall, Veerbahdra Nagar,
Belagavi and petitioner has left the matrimonial home for
the reason set out in her evidence. Perusal of the findings
recorded by the Family Court would indicate that the
respondent had femur fracture with left distal end radius
fracture. It is also forthcoming from the impugned order
RPFC No. 100019 of 2019
that the as per the physical disability certificate-EX.R.12,
the respondent has sustained permanent disability to the
extent of 55% on the left lower limb. It is reflected from
the impugned order that the respondent herein was
working as a electrical contractor and his father is said to
have been a retired Health Inspector. PW.1 has stated in
her evidence that the respondent is having multistoried
building and let it out on rent basis and getting handful of
earnings. In that view of the matter, reasons assigned by
the Family Court at para 17 of the impugned order is
contrary to the scope and ambit of Section 125 of Cr.P.C.
Physical disability along of the respondent itself is not a
ground to deny the maintenance. The Family Court has not
appreciated the evidence of PW.1 with regard to the rental
income that may be accrued to the respondent by letting
out the premises for lease. Therefore, I am of the view that
the reasons assigned by the Prl. Judge, Family Court
declining to entertain the petition under Section 125 of
Cr.P.C. is incorrect and the same requires reconsideration,
RPFC No. 100019 of 2019
in the light of the judgment of the Hon'ble Apex Court in
the case of Smt. Sudha Devi and another V/s. State of UP,
reported in, 2015 Cri. L.J.3339, wherein at Paragrahs No.
14, 15 it is held as under:
"14. Now it may not be out of place to extract the
relevant section of 125(2) of Cr.P.C. herein below :-
"125. Order for maintenance of wives, children and
parents.-(2) Any such allowance for the maintenance
or interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so
ordered, from the date of the application for
maintenance or interim maintenance and expenses of
proceeding, as the case may be."
15. As is obvious that the aforesaid section does not
contain any such requirement that the reasons ought
to be accorded or assigned by the court while
directing the maintenance to be paid from the date of
application, there is no reason to read in the section
something which is not written there. At several
places in several sections of the Code of Criminal
Procedure there is a statutory mandate to record the
reasons while adopting a particular course which a
court may deem fit to adopt. There is no reason to
attribute negligence or ignorance to the wisdom of
the legislature. If the legislation in its wisdom has not
chosen to lay down condition or has not chosen to
RPFC No. 100019 of 2019
mandate a certain course or modality to be adopted
while doing something, then the language of the
statutes ought not to be strained or tortured to give
out to a particular meaning or a particular
interpretation. Such a construction will be all the
more bad if it leads to the disadvantage of one for
whose benefit the legislation has been brought in
existence and the statute enacted. The very object of
introducing Section 125 of Cr.P.C. has been to save
the vagrancy of destitute wives who had been
suffering neglect at the hands of their husbands who
were under the legal as well as moral obligation to
maintain their wives and children. It appears that the
two phrases used in Section 125 of Cr.P.C. that,
"from the date of order, or, if so ordered from the
date of the application", might have been aimed to
indicate a guiding presumption for those cases where
it may not have been specifically mentioned in the
judgment as to from which date the amount of
maintenance shall be payable. If in a given case the
court simply passes the order that certain amount is
to be paid to the wife and it has not been made
explicit or express in the order as to from which date
it shall be payable it shall be then presumed that the
husband shall be liable to pay the amount of
maintenance from the date of the order. But, if the
court specifically orders the payment from the date of
the order, there is no need entering in any
presumption. That's why the legislation in its wisdom
seems to have used the particular phraseology in the
sub-section which it did. If a court wants to make the
RPFC No. 100019 of 2019
husband liable to pay the amount of maintenance
from the date of institution of the suit it is always
open for the court to do so and it will have to make
an order to that effect also. The use of the word, "if
so ordered" does not indicate anything more. To
impute any interpretation to the sub-section which
makes it a legal requirement to assign reasons before
making an order in the event of fixing up the amount
of maintenance from the date of application is, in the
view of this Court, not a very sound interpretation.
With greatest respect to the views expressed by the
Hon'ble Judges in the aforesaid judgments, this Court
has not been able to persuade itself to agree with the
same. The Division Bench decision given in Jagat
Narain's case too has a binding effect on the Benches
of lesser strength, and even in that view of the
matter also this Court adopts the same view."
Hence, it is the bounden duty of the husband to look
after the wife and to provide basic necessities for her
livelihood.
8. In the light of the observations made above, I pass
the following:
ORDER
1. The Revision Petition is allowed;
RPFC No. 100019 of 2019
2. Order dated 21/12/2018 in Crl. Misc.
No.517/2015 by the Prl. Judge, Family Court, Belagavi
is set aside and the matter is remitted back to the
Family Court, Belagavi for fresh consideration, after
affording opportunity of hearing to both sides;
3. In order to avoid further delay in the matter,
parties are directed to appear before the Family Court,
Belagavi on 15/6/2022 without awaiting for notice;
4. Learned Family Judge is directed to dispose of
the petition within six months from the date of the
receipt certified copy of this order;
5. It is made clear that Prl. Judge, Family Court
shall not be influenced by the observations made by
this Court in this order.
Sd/-
JUDGE
VB
