Abdul Wakeel S/O Abdul Sayeed … vs Rubeena Parveen W/O Abdul Wakeel on 16 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL REVISION NO.93/2016

Abdul Wakeel s/o Abdul Sayeed Sheikh,
aged about 42 years, Occ. Service,
r/o Plot No. 23, Mhasala Toli, Raza Town,
Post Uppalwadi, Kamptee Road,
Nagpur. …..APPLICANT

…V E R S U S…

Rubeena Parveen w/o Abdul Wakeel Sheikh,
D/O Mohd. Rafi, Aged about 28 years,
Occ. Household, r/o Khatikpura,
Sadar, Nagpur. …NON APPLICANT

——————————————————————————————-
Mr. S. Raisuddin, Advocate for applicant.
Mr. Sayyad Shahid, Advocate for non applicant.
——————————————————————————————-
AND
CRIMINAL REVISION NO.124/2017

Rubeena Parveen w/o Abdul Wakeel Sheikh,
D/O Mohd. Rafi, Aged about 28 years,
Occ. Household, r/o Khatikpura,
Sadar, Nagpur. …..APPLICANT
…V E R S U S…

Abdul Wakeel s/o Abdul Sayeed Sheikh,
aged about 42 years, Occ. Service,
r/o Plot No. 23, Mhasala Toli, Raza Town,
Post Uppalwadi, Kamptee Road,
Nagpur. …NON APPLICANT

——————————————————————————————-
Mr. Sayyad Shahid, Advocate for applicant.
Mr. S. Raisuddin, Advocate for non applicant.
——————————————————————————————-

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CORAM:- V. M. DESHPANDE, J.

DATED :- 16.01.2018

ORAL JUDGMENT

1. Since both these revision applications arise out of the

same judgment and order passed by the learned Judge of the

Family Court No.3, Nagpur in Petition E-327/2013, both these

revision applications are taken up together for hearing and are

being disposed of by this common judgment.

2. Rule. Rule is made returnable forthwith. Heard finally

by consent of Mr. S. Raisuddin, learned counsel for applicant-

husband and Mr. Sayyad Shahid, learned counsel for non

applicant-wife.

3. Revision Application No.93/2016 is filed by the

husband whereas Revision No.124/2017 is filed by the wife. The

parties will be referred as “husband” and “wife” in the present

judgment.

4. The wife approached to the Family Court by filing an

application under Section 125 of the Code of Criminal Procedure

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for grant of maintenance. The said application was registered as

Petition E-327/2013. According to the application, the marriage

took place on 29.10.2011 at Nagpur. After marriage, the wife

went to reside in the house of the husband who used to reside

along with his parents and sister. The application further states

that on the first night itself, the husband got annoyed on the

pretext of less dowry. The family members of the husband used to

pass taunts against the wife saying that she is a beggar. The

mother of the husband used to beat the wife with police stick. It is

pertinent to note here that the husband is serving as Constable in

police department. It is further stated in the application that the

elder sister of the husband by name Naheed Pareen was staying

with the husband along with her children. It is further stated in

the application that in the first week of February-2012, Naheed

picked up quarrel with the wife and not only abused her but gave

a beating and drove her out of the house. Thereafter the wife was

required to take shelter in her maternal home. There, she became

ill and was under medical treatment for about one month. It is

further stated that in the first week of March-2012, the husband

came to the house of the wife and forced her to write on some

stamp paper that she has left the house of husband on her own. It

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is stated that only after execution of the document, she will be

allowed enter into the matrimonial house. The wife, having left

with no other alternative, executed the said document. In the

month of November-2012, she was blamed for causing one death.

The husband asked the wife to leave her matrimonial house and

join her paternal house and extended threats. It is further stated

in the application that in January-2013, husband sent a lady by

name Shammubai to the house of the parents of the wife. The

meeting was held at the house of Mustafabhai, who was the

mediator in the marriage. However, in the said meeting, the

husband started abusing wife and her parents in filthy language.

It is further stated in the application that the husband has

neglected the wife and is not maintaining her without there being

any lawful cause. It is further stated in the application that the

husband is working in police department and his monthly salary

was Rs.30,000/-, having house and ancestral land and therefore

she demanded maintenance at the rate of Rs.15,000/- per month.

5. On being summoned, the husband put in his

appearance and filed the reply Exh.-21. The husband did not

dispute the relationship. It is also not disputed that the wife is his

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legally wedded wife. According to the husband, the wife on her

own left the company of the husband. It is further stated in the

reply that in the first week of March-2012, when the wife left the

matrimonial house, the husband visited her parents and at that

time meeting was held and in that meeting the wife accepted her

mistake and gave in writing on stamp paper on 15.09.2012.

Similarly, it is stated in the reply that the meeting was called by

Shammubai in the month of January-2013, in the house of

Mustafabhai for amicable settlement between the parties. He

therefore submitted that the husband is not responsible for making

any payment.

6. Wife and the husband both entered into the witness

box. Except their oral evidence, no other oral evidence was

adduced before the Court below. Salary certificate of the husband

is at Exh.-40 and it is dated 03.09.2014. The agreements, which

according to the husband was executed by the wife on 15.09.2012

and 20.03.2012, are filed on record and they are at Exh.-37 and

38. The learned Judge, Family Court, after appreciating the

evidence as brought on record found that for no reason, the

husband has neglected the wife. It is also the finding recorded by

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the learned Judge of the Court below that there was no reason for

the wife to leave the her matrimonial house. The learned trial

Court, after appreciating the salary certificate, found that the wife

is entitled to receive the amount of Rs.7,000/- by way of

maintenance looking to his net salary which was found to be

Rs.23,820/-. It was also found that the wife is not having any

source of income independently to maintain herself and passed the

judgment impugned.

Since both; husband and wife are not satisfied with the

verdict given to him, they are before this Court.

7. Mr. Raisuddin, learned counsel for the husband

submitted that he is ready to pay Rs.5,000/- per month. He

submitted that the husband has to bear the expenses of his

brother, who is having back pain. He furthers submitted that the

husband has also married with other lady and he has to take care

of the said lady and also his sister and therefore the learned

counsel for the husband submitted that the maintenance amount

be scaled down from Rs.7000/- per month to Rs.5000/- per

month.

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8. Per contra, Mr. Sayyad Shahid, learned counsel for the

wife submitted that the learned Judge of the Family Court has

accorded maintenance at the lower rate. He submitted that

presently, the applicant is getting more than Rs.40,000/- as salary

and therefore prays that the revision filed by the wife be allowed.

9. In the light of the submissions of the learned counsel

for the applicant, it is clear that the husband has not challenged

the verdict that the wife has not left the house on her own. Even

from the fact that the documents at Exhs.37 and 38, in my view

cannot extend any helping hand to the husband in view of the fact

that the wife is a Pardanasheen woman therefore it is difficult that

she will go to purchase the stamp paper. The stamp papers Exh.-

37 and 38 are in the name of the wife. Further, it is the case of

the husband that in the meeting, these two documents were

executed. In my view, the learned Judge of the Court below has

rightly considered this fact and has rightly disbelieved those

documents by recording a finding that it was the duty of the

husband to adduce evidence of the mediator and other persons

who were present in the said meeting. Once again, in view of the

fact that the husband is working in police department and

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therefore he knows the importance of execution of the document

on the stamp paper, the wife is the Pardanasheen lady and right

from the beginning, it is the case of the wife that she was forced to

sign the stamp paper, in my view, the learned Judge of the Court

below has correctly probabilized the said aspect and has recorded

a finding about rejection of those documents.

10. Insofar as the income is concerned, the payment slips

show that the gross salary of the husband is Rs.31,640/-. While

reaching to the figure of net income or net salary, only the

statutory deductions have to be considered. According to the

salary slips, Exh.-24 and 25, after deduction, the salary was shown

to be Rs.23,820/-.

11. Insofar as today’s salary concerned, in my view, it will

not be helpful for the wife since that particular document was not

before the learned Judge of the Family Court. Therefore, merely

because the wife is stating that the presently the salary of the

husband is more than Rs.40,000/-, it is not sufficient. It is always

open for the wife to take necessary proceeding by moving an

appropriate application before the Court below.

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12. The amount of maintenance is fixed at the rate of

Rs.7,000/- per month considering the salary to be Rs.23,820/- per

month, which in my view, is incorrect. Insofar as reduction of

maintenance on the ground that the husband has to maintain his

second wife, his ailing brother and sister, is concerned, they are

totally misconceived inasmuch as from the perusal of the

paragraph 14 of the impugned judgment, the learned Judge has

found that the brother of the husband and husband have

constructed a new house and they have made their respective

contribution. Further, there is no evidence on record that the said

ailing brother is not doing any work. Insofar as the second

marriage is concerned, merely because the husband has married

with any other lady, that does not absolve his liability to maintain

his wife especially when there is no legal divorce between them.

13. In that view of the matter, the revision field by the

husband being Revision No.93/2016 is required to be rejected and

it is accordingly rejected.

Insofar as the revision of wife being Revision

No.124/2017 is concerned, it is partly allowed. The wife is

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entitled to the enhanced maintenance at the rate of Rs.8,000/- per

month instead of Rs.7,000/- per month from 16.04.2016 i.e. from

the date of the judgment delivered by the Family Court.

Rule accordingly.

JUDGE

kahale

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