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Kalimuddin Khan vs State Of Bihar & Anr on 6 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.844 of 2016
Arising Out of PS. Case No.- Year- Thana- District- Saran

Kalimuddin Khan Son of Md. Moinuddin Khan Resident of Mohalla- Nai
Bazar, P.S. Bhagwan Bazar, District Siwan.

… … Petitioner/s
Versus

1. The State of Bihar

2. Ismat Parveen Daughter of Md. Shahabuddin khan Resident of Village-
Gurdahan Khurd, P.S manjhi, District Saran.

… … Respondent/s

Appearance :

For the Petitioner/s : Mr. Rajesh Kumar
For the Respondent/s : Mr. SRI BRAJENDRA NATH PANDEY

CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date : 06-03-2018

This criminal revision application has been filed

putting to challenge the judgment and order, dated 25.06.2016,

passed by the learned Principal Judge, Family Court, Saran at

Chapra in Maintenance Case No. 25 of 2002, whereby

exercising power under Section 125 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘the Code’), learned

Court below has directed the petitioner to make payment of a

sum of Rs. 18,000/-(Eighteen thousand) per month with effect

from the date the Opposite party No.2 started getting salary of

Rs. 12,000/- per month in her capacity as Panchayat Teacher.

2. The application under Section 125 of the Code was
Patna High Court CR. REV. No.844 of 2016 dt.06-03-2018
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filed by the Opposite party No.2 on 13.08.2002. Considering

the cost of living at that point of time, the Court below directed

the petitioner, by the impugned order, to pay a sum of Rs.

8,000/- per month for maintenance to Opposite party No.2 and

for education and health of their son, till the month of December

2006. In the month of December 2006, the Opposite party No.2

had joined as Panchayat Teacher and was getting a salary of Rs.

8,000/-. Considering her salary and the cost of living taking into

account the status of the petitioner, the Court below directed

payment of Rs. 6,000/- per month from the month of January

2007 to month of December 2010. From January 2011, the

petitioner has been made liable to pay a sum of Rs. 18,000/- per

month to the Opposite party No.2. The Court below has also

made provision for enhancement of the maintenance amount

proportionate to the increment of the salary of the petitioner, as

well.

3. What is not in dispute as is evident from the

impugned judgment and order and the materials on record that

the petitioner and Opposite party No.2 were married to each

other. Whereas the Opposite party No.2 had asserted that the

marriage between the petitioner and the Opposite party No.2

was solemnized on 10.12.1996, the petitioner asserted that they
Patna High Court CR. REV. No.844 of 2016 dt.06-03-2018
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were married on 10.12.1986. The factum of the marriage

between the two was never in dispute. Though there is assertion

made by the petitioner in his reply before the Court below that

the petitioner had pronounced talak but the respondent refused

to put signature on the talaknama, the Opposite party No.2

disputed the case of talak developed by the petitioner. On the

ground that the petitioner had already divorced the Opposite

party No.2, relying on Section 3 of Muslim Women ( Protection

of Rights on Divorce) Act, 1986, the petitioner had questioned

the very maintainability of a petition under Section 125 of the

Code. The objection so raised was rejected by the learned Court

below by an order, dated 24.11.2005 itself. No such plea,

however, has been taken in the present proceeding inasmuch as

no ground has been set up in the criminal revision application

on the question of maintainability of the application filed by the

Opposite party No.2 before the Court below. There is, thus, no

dispute over the factum of marriage between the petitioner and

the Opposite party No.2. The plea of the petitioner that he had

divorced the Opposite party No.2 has been disputed by the

Opposite party No.2. In any view of the matter, this is not the

case of the petitioner that the Opposite party No.2 has re-

married. The petitioner had also set up a case before the Court
Patna High Court CR. REV. No.844 of 2016 dt.06-03-2018
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below that he had obtained decree of divorce from the Court of

learned Sub Judge-I, Patna and for that reason also he was not

liable to pay the maintenance amount under Section 125 of the

Code. It transpires from the impugned order that an application

filed by the Opposite party No.2 under Order-IX Rule 13 of the

Code of Civil Procedure, 1908, for setting aside the ex parte

decree of divorce was pending before the concerned Court.

4. Learned Court below, however, has recorded in the

impugned order that even if it was presumed that there was

divorce by the petitioner, he could not escape the liability of

payment of maintenance there being no case that the Opposite

party No.2 had re-married, relying on Supreme Court’s decision

in case of Daniel Latifi and another Vs. The Union of India

reported in (2001)7 SCC 740 and subsequent decision in case

of Khatoon Nisa Vs. State of Uttar Pradesh and others

reported in 2014(12) SCC 646.

5. The Court below, thereafter proceeded to consider

the case of the contesting parties on the point as to whether the

petitioner, though having sufficient means had neglected or

refused to maintain the Opposite party No.2 being his wife and

if so what amount of maintenance she was entitled to.

6. On the basis of the evidence adduced in the
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proceeding under Section 125 of the Code, the Court below

noticed that the Opposite party No.2 was residing at her parental

house ever since 11.06.2000 without having any source to

maintain herself and her minor son who was studying in

International Public School, Patna. At the time of filing of the

application for maintenance before the Court below, admittedly,

she was not engaged in any kind of employment and was in

search of her livelihood. Only in the year 2006, she got a job of

Panchayat Teacher on fixed pay as remuneration. The Court

below noticed the fact that the petitioner was, on the other hand,

holding a respectable post and earned handsome salary as an

Officer in the Central Excise Department of the Government of

India. Noticing the status of the petitioner vis-a-vis that of the

Opposite party No.2, the Court below concluded that the

petitioner had failed to maintain the Opposite party No.2 and

their minor son and that the Opposite party No.2 was not able to

maintain herself and live in reasonable comfort, considering her

status and the mode of the life she was used to lead, when she

lived with her husband.

7. On the date of passing of the impugned order, the

Opposite party No.2 was getting fixed salary to the tune of Rs.

12,000/- per month as Panchayat Teacher and a plea was
Patna High Court CR. REV. No.844 of 2016 dt.06-03-2018
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accordingly taken on behalf of the petitioner before the Court

below that since the Opposite party No.2 was able to maintain

herself, she was not entitled to any maintenance either under

the provision of Section 125 of the Code or under the

provisions of the Muslim Women ( Protection of Rights on

Divorce) Act, 1986. Learned court below responding to the said

objection raised on behalf of the petitioner referred to this

Court’s decision in case of Shamima Faruqui Vs. Shahid

Khan reported in 2015(3) PLJR 58 and accordingly concluded

that a wife can be said to be able to maintain herself if she is in a

position to maintain standard of living, which is neither

luxurious nor penurious but what is consistent with the status of

a family, referring to and relying on Supreme Court’s decisions

in case of Chaturbhuj Vs. Sita Bai reported in (2008) 2 SCC

316 and in case of Bhagwan Vs. Kamla Devi( AIR 1975 SC

83).

8. After having held so, learned court below has

elaborately considered the amount, which the petitioner was

earning as salary in his capacity as an Officer in the Central

Excise Department, Government of India. The Court below

noticed that the gross pay of the petitioner was more than Rs.

70,000/- and he had to look after his parents as well as his
Patna High Court CR. REV. No.844 of 2016 dt.06-03-2018
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second wife though he was getting net pay of Rs. 51,200/- after

G.P.F. deduction of Rs. 10,000/-. On the other hand the Opposite

party No.2 was getting only Rs. 12,000/- as fixed salary as on

the date of the passing of the order for maintaining herself and

the minor son. What I find from the order of the Court below

that it has taken into account the amount which the Opposite

party No.2 had been earning in the year 2006, when she was

first appointed as Panchayat Teacher which was a sum of Rs.

8,000/- per month as fixed salary. The reason for fixing the

maintenance amount as noted above, has been elaborately given

in paragraph 20 of the judgment and order impugned, which is

being reproduced herein below:-

“20. Since, the maintenance petition is
filed on 13.08.2002 and on that very day the petitioner
was unemployed and the cost of living was not so
high, hence I think that Rs. 8,000/- ( Eight thousand)
per month for maintenance of the petitioner as well as
for education and health of her son will sufficient and
the opposite party is under obligation to pay Rs.

8,000/- (Eight thousand) per month from the date of
filing of the case on 13.08.2002 till the month of
December, 2006, the date on which the petitioner
joined as a teacher in Bihar Govt. From the month of
January, 2007 to the month of December, 2010 since
the petitioner was getting salary of Rs. 8,000/- (Eight
thousand), hence the opposite party will be under
obligation to pay Rs. 6,000/- (six thousand) per month
from the month of January, 2007 to the month of
December, 2010 and as stated above from the month
of January, 2011 till date and in future the Opposite
party will pay Rs. 18,000/- ( Eighteen thousand)n per
month to the petitioner. The maintenance amount will
be paid by the Opposite party of a month in first week
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of next month. In order to avoid difficulty for
enhancement or remission or alteration in
maintenance amount I think that it will be proper to
enhance the maintenance amount to the petitioner at
the half of the percent of increment of the salary of the
Opposite party. For example if the salary of the
Opposite party is increased at the rate of 3% of the
maintenance amount, that is on Rs. 18,000/-. It is
needless to say that if the opposite party has paid any
amount to the petitioner from the date of filing of the
case that amount shall be set off and adjusted from the
earlier amount of maintenance to be paid by the
Opposite party to the petitioner.”

9. The reasoning as to why the Opposite party No.2

should be allowed Rs. 18,000/- per month as maintenance

amount has been given in paragraph 19 of the impugned

judgment, which is also noted herein below:-

“19. I have heard on the point of
quantum of maintenance to the both parties and
perused the pay slip, which is filed by the opposite
party. The pay slip shows that the date of increment
of the pay is in the month of July and the pay slip is
for the month of May. Admittedly, the contribution of
the GPF is income of the Opposite party, which will
be refunded to the contributory employee. It has also
come in the evidence that the Opposite party has to
maintain his second wife and old father. In view of
the above facts, to may mind the total expenditure to
be incurred by the petitioner along with expenses to
meet out the education as well as health to the son of
the petitioner is more than Rs. 30,000/- per month,
which is required to the petitioner. Since, the
petitioner is getting Rs. 12,000/- per month hence it
will be just and proper, if the opposite party is
directed to pay Rs. 18,000/- per month to the
petitioner from the date, when she was allowed Rs.
12,000/- per month as salary of a teacher.”

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10. The reasoning assigned by the Court below for

fixing the quantum of maintenance amount in my view, is sound

and suffers from no infirmity.

11. Learned counsel appearing on behalf of the

petitioner has, however, asserted that the Court below has

miserably failed to appropriately consider and apply the

Supreme Court’s decision, which have been referred to in the

impugned order on the question as to whether the Opposite

party No.2 was able to maintain herself with her earnings as

Panchayat Teacher. A plea has also been taken that admittedly

the Opposite party No.2 had refused to accept the cheque

amount of Rs. 1,53,000/-, which the petitioner had deposited

towards her Dein Mehar for her sustenance to support the

contention that she was able to maintain herself. It is also the

plea on behalf of the petitioner that there was no material

available on record to show that the Opposite party No.2 was

leading a life of penury. When the matter was take up on

21.02.2017, following order was passed:-

“The petitioner is, admittedly, a
gazetted officer, working under the Central
Excise Department. He is aggrieved by an
order, dated 25.06.2016, passed by learned
Principal Judge, Family Court, Saran, at
Chapra, in Maintenance Case No. 25 of 2002,
whereby he has allowed monthly maintenance
allowance in favour of Opposite party No.2
and her son at the rate of Rs. 18,000/- per
Patna High Court CR. REV. No.844 of 2016 dt.06-03-2018
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month with effect from January, 2011, in
exercise of power under Section 125 of the
Code of Criminal Procedure, 1973.

The order is being assailed
mainly on the ground that Opposite party
No.2 is earning an amount of Rs. 12,000/- per
month in her capacity as Panchayat Teacher,
working in some School at Chapra and,
therefore, it cannot be said that she is living
in penury. The said amount has been allowed
for the maintenance of Opposite party No.2
and son of the petitioner and the Opposite
party No.2.

Considering the status of the
petitioner, who is said to be serving as a
gazetted officer in Excise Department of the
Central Government, I am of the tentative
view that the quantum of monthly
maintenance allowance for maintenance of
Opposite party No.2 and the child is not
adequate and needs to be substantially
enhancd.

Let the petitioner file his
response within four weeks from today.

List this case, under the same
heading, on 21st March, 2017.”

12. A reply has been filed in the present proceeding

on behalf of the petitioner to the counter affidavit filed on

behalf of Opposite party No.2. It has been stated, inter alia, in

the said reply that the son of the petitioner and Opposite party

No.2 has attained majority and is, therefore, not entitled to any

maintenance. It has also been stated that the Opposite party

No.2 is now earning a sum of Rs. 18,000/- in a month in her

capacity as Panchayat Teacher.

13. I find that the learned Court below has rightly
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invoked the ratio laid down by the Supreme Court in case of

Khatton Nisa Vs. State of Uttar Pradesh and others (supra) to

maintain the claim of the Opposite party No.2 of her

maintenance on the grounds mentioned under Section 125 of

the Code.

14. Learned Court below has rightly followed the law

laid down by the Supreme Court in case of Jasbir Kaur

Sahgal Vs. District Judge Dehradun and others reported in

(1997) 7 SCC 7 and this Court’s decision in case of Shamima

Faruqui Vs. Shahid Khan (supra). The Supreme Court

observed in case of Jasbir Kaur Sahgal Vs. District Judge

Dehradun (supra), that a sustenance would not mean and can

never be allowed to be meant a mere survival. The Supreme

Court categorically held that a woman is entitled to lead a life

in a similar manner as she would live in the house of her

husband and that is where a status and strata of the husband

comes into play and that is where the legal obligation of the

husband becomes a prominent one. In no uncertain terms, the

Supreme Court has held that as long as the wife is held entitled

to grant of maintenance within the parameters of Section 125

of the Code, it has to be adequate so that she can live with

dignity as she would have lived in her matrimonial home.

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15. The quantum of maintenance amount, which has

been fixed by the Court below in view of the reasons assigned

in the order impugned, can in no way be said to be

unreasonable on the higher side. As a matter of fact, the Court

below has tried to strike a balance between the interest of the

parties while undertaking the exercise of fixing the quantum of

maintenance, as is noticed from the reasons assigns, relevant

portion of which have been quoted above.

16. I do not find any reason to interfere with the

judgment and order impugned. I do not find any merit in this

application, accordingly.

17. This application is, accordingly, dismissed.

(Chakradhari Sharan Singh, J)
arun/-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 07.03.2018
Transmission Date 07.03.2018

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