Gulam Raza vs Smt Razia Bano on 4 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 577 / 2017
Gulam Raza S/o Shri Maqbul Mohammed, Aged about 26 years,
R/o Inside Telipara, Gulabpura, Tehsil Hurda, District Bhilwara
(Raj.)
—-Petitioner
Versus
Smt. Razia Bano W/o Gulam Raza D/o Shri Abdul Aziz, Presently
R/o Momin Mohalla, Mangla Chok, Bhilwara (Raj.)
—-Respondent
__
For Petitioner(s) : Mr. Usman Ghani.
For Respondent(s) : Mr. N.K. Choudhary.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
04/01/2018

The instant revision petition is filed by petitioner-husband to

challenge impugned order dated 29th of September, 2016, passed

by Family Court, Bhilwara (for short, ‘learned Court below’)

granting maintenance to respondent-wife @ Rs.10,000/- per

mensem, while accepting her application under Section 125 Cr.P.C.

The facts, in brief, giving rise to this revision petition are that

respondent-wife submitted a petition under Section 125 Cr.P.C.

against petitioner for claiming maintenance and other expenses to

the tune of Rs.40,000/- per month. It was

specifically averred by the respondent, in her petition, that both of

them entered into matrimony as per Muslim rites and rituals on 6 th

of April, 2015 at Bhilwara but, soon after marriage, petitioner

started ill-treating her with demand of dowry. The petition further

unfurled that atrocious behavior petitioner of continued
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[CRLR-577/2017]

unabatedly for demand of dowry. Against atrocious and cruel

behavior, respondent lodged FIR against petitioner for offence

under Section 498A, 406 354 IPC. A fact, that petitioner and

other members of in-laws family ousted respondent from

matrimonial home, also find mention in the petition. For claiming

maintenance, respondent pleaded in the petition that she is living

with her parents and is unable to maintain herself, therefore,

petitioner may be directed to pay maintenance @ Rs.40,000/- per

month. With a view to quantify the amount of maintenance,

respondent has specifically averred in the petition that petitioner

is doing business of tailoring at Gulabpura with the assistance of

fifteen co-workers and is earning Rs.3,000/- per day. That apart,

agricultural income of the petitioner is also shown as Rs.10,000/-

per month. The petition filed by the respondent-wife is contested

by petitioner-husband and reply to the same is submitted with

bare denial of all the averments. In the reply, no endeavor was

made by the petitioner-husband to refute the allegations.

After submission of reply, respondent-wife herself appeared

in the witness box and testified on oath but despite availing many

opportunities no evidence was tendered by petitioner-husband.

Learned Court below, thereafter, heard final arguments and by the

order impugned partly allowed petition under Section 125 Cr.P.C.

and awarded maintenance to the tune of Rs.10,000/- per month.

I have heard learned counsel for the parties at length,

perused the impugned order and thoroughly scanned the record of

the case.
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[CRLR-577/2017]

The remedy provided under Chapter IX Cr.P.C. primarily

aimed to give social justice to women and children to prevent their

destitution and vagrancy. Therefore, Section 125 Cr.P.C. is

intended to achieve the social purpose. A bare reading of this

section makes it abundantly clear that it is a fundamental duty of

a man to maintain his wife, children and parents so long they are

unable to maintain themselves. In substance, proceedings under

Section 125 Cr.P.C. are not punitive but remedial, and therefore,

to ensure early disposal of such applications summary procedure

is also provided.

In the instant case, respondent-wife is has pleaded all the

relevant facts for claiming maintenance but on behalf of

petitioner-husband a very vague and cryptic reply is filed. That

apart, respondent-wife has substantiated all the averments

contained in the petition by appearing in the witness box and

contrary to it no evidence is tendered by the petitioner-husband.

Therefore, in totality, the evidence tendered by respondent-wife

remained uncontroverted to the extent of factum of matrimony,

her vagrancy and earnings of the petitioner-husband. It is really

strange, that on behalf of petitioner-husband before learned Court

below no objection was raised about validity of marriage between

both the parties but before this Court it is vociferously canvassed.

Submission of learned counsel for the petitioner that at the

time of marriage, respondent was already married and was not

divorced by her previous husband, and therefore, marriage was

not in accordance with Muslim Law, appears to be quite attractive

but then factum of living together as husband and wife remained
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[CRLR-577/2017]

undisputed cannot be overlooked by the Court. Moreover,

launching of criminal case against him and his family members by

respondent for offence under Sections 498A, 406 354 IPC is also

significant to prima facie show matrimony.

Upon consideration all these arguments, which are

absolutely alien to the pleadings of petitioner and fall short of

requisite proof, I am constrained to observe that unlike

matrimonial proceedings, in a proceeding under Section 125

Cr.P.C. strict proof of marriage is not essential. The standard of

proof in a proceeding under Section 125 Cr.P.C. is not akin to

matrimonial proceedings as these proceedings are summary in

nature meant to prevent vagrancy. My this view is also fortified

by a judgment of the Supreme Court in case of Chanmuniya Vs.

Chanmuniya Virendra Kumar Singh Kushwaha Anr. [(2011) 1

SCC 141], wherein the Court held:

“46.We are of the opinion that a broad
and expansive interpretation should be given
to the term `wife’ to include even those
cases where a man and woman have been
living together as husband and wife for a
reasonably long period of time, and strict
proof of marriage should not be a pre-
condition for maintenance under
Section 125
of the Cr.P.C, so as to fulfil the true spirit and
essence of the beneficial provision of
maintenance under
Section 125.”

Therefore, in the backdrop of peculiar facts and

circumstances of the case, as there is no specific denial by

petitioner-husband about matrimony and further he has not

tendered any evidence to authenticate his so called defence, in my

considered opinion, learned Court below has not committed any
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[CRLR-577/2017]

error much less manifest error in relying on unimpeached

testimony of respondent-wife. It is also noteworthy that regarding

his per month income also petitioner did not place any concrete

proof on record before the learned Court below, nor he tendered

requisite evidence, yet the learned Court below has taken a

lenient view in assessing the monthly maintenance to the tune of

Rs.10,000/-.

In above view of the matter, upon examining the impugned

order in exercise of revisional jurisdiction, I am unable to find any

illegality or impropriety so as to interfere with the same.

Resultantly, the revision petition fails and same is hereby

dismissed.

(P.K. LOHRA),J.

Twinkle Singh/20

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