WP 689/16 1 Judgment

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 689/2016
Abid Khan s/o Chhote Khan,
Age : 48 years, Occ : Teacher,
R/o Mulla bada, Near Dargah
Maulvi Sahab, Kandhar,
Tq. Kandhar Dist Nanded. PETITIONER

…..VERSUS…..
1. Shaista Khanam d/o Abdul Raheman,
Age : 40 years, Occ : Business,
R/o Opposite Jama Masjid,
Post Kurum Tq. Murtizapur, Dist Akola.

2. The State of Maharashtra,
(Copy to be served on Public Prosecutor
High Court Bench at Nagpur). RESPONDE
NTS

Mr. M.S. Wakil, counsel for the petitioner.
Mr. R.D. Karode, counsel for the respondent no.1.
Mr. A.R. Chutke, Additional Public Prosecutor for the respondent no.2.

CORAM : REVATI MOHITE DERE, J.
DATE : 11 TH DECEMBER, 2017.
P.C.

Heard learned counsel for the parties. Rule is made

returnable forthwith with the consent of the learned counsel for the

parties and the petition is taken up for final disposal.

2. By this petition, the petitioner has impugned the common

judgment and order dated 12.02.2016 passed in Criminal Revision

Nos.37/2011 and 194/2011, by the learned Additional Sessions Judge,

Akola, by which the criminal revision (Criminal Revision No.37/2011)

preferred by the petitioner was dismissed, whereas, the criminal revision

(Criminal Revision No.194/2011) preferred by the respondent no.1 was

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allowed and the amount of maintenance and mahr was enhanced from

Rs.3,00,000/- to Rs.5,00,000/-.

3. Learned counsel for the petitioner submitted that the

petitioner is ready to pay Rs.3,00,000/- (Rupees Three Lakhs) towards

reasonable and fair provision and maintenance, as awarded by the trial

Court vide judgment and order dated 28.02.2011 in Miscellaneous

Criminal Case No.135/2008. He further submited that there was no

justification for the learned Additional Sessions Judge, Akola to enhance

the amount of maintenance and mahr from Rs.3,00,000/- to

Rs.5,00,000/-. He submitted that the petitioner does not have sufficient

means to pay the said amount of Rs.5,00,000/- and that the learned

Sessions Judge had failed to consider the salary certificate of the

petitioner. He further submitted that the petitioner has several

dependents on him, i.e. his aged mother, two unmarried sisters, second

wife and three children from the second marriage. He further submitted

that the impugned judgment and order dated 12.02.2016 be quashed and

set aside, insomuch as, it enhances the amount of maintenance and mahr

from Rs.3,00,000/- to Rs.5,00,000/-.

4. Learned counsel for the respondent no.1-wife opposed the

petition. He submitted that no interference was warranted in the

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impugned judgment and order enhancing the amount of maintenance and

mahr from Rs.3,00,000/- to Rs.5,00,000/-. He submitted that merely

because the petitioner has married second time and has three children,

who are dependent on him, cannot be a ground for reducing the amount

of maintenance and mahr from Rs.5,00,000/- to Rs.3,00,000/-.

5. Perused the papers. The respondent no.1 is the first wife of

the petitioner. The respondent no.1 and the petitioner got married in the

year 1997 and have one daughter from the said wedlock. It appears that

in 2002, the petitioner deserted the respondent no.1 and the daughter. It

is alleged that an amount of Rs.15,000/- was fixed as mahr at the time of

marriage, however, the said amount was not paid by the petitioner to the

respondent no.1. In 2000, the respondent no.1 filed proceedings under

Section 125 of Cr.P.C. as against the petitioner in the Court of the learned

Judicial Magistrate First Class, Murtizapur and sought maintenance for

herself and her daughter. Several orders were passed in the said

proceedings. It appears that the learned Magistrate finally awarded

maintenance to both, i.e. the respondent no.1 and her daughter, however,

being aggrieved by the said order of enhancing the maintenance awarded

to the respondent no.1, the petitioner preferred a criminal revision in the

Sessions Court, Akola. The learned Additional Sessions Judge held that

since the respondent no.1 was a divorcee, as talaq was given to her, the

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respondent no.1 was not entitled to claim maintenance from the

petitioner, however, the learned Additional Sessions Judge maintained

the maintenance awarded to the respondent no.1’s and petitioner’s

daughter, i.e. of Rs.1,000/- per month. Admittedly, the said judgment

and order has not been challenged by the respondent no.1 till date.

Considering the status of the respondent no.1 as a divorcee, the

respondent no.1 filed an application under Section 3 of the Muslim

Women (Protection of Rights on Divorce) Act (hereinafter for the sake of

brevity referred to as ‘the said Act’) and sought a reasonable and fair

provision and maintenance from the petitioner. According to the

respondent no.1, as the petitioner had not paid the mahr amount of

Rs.15,000/- nor had he paid the maintenance amount of Rs.10,000/-

during the iddat period, she claimed Rs.50,000/- per year for herself

and her daughter or a lumpsum amount of Rs.20,00,000/- for her

lifetime. According to the respondent no.1, the petitioner was serving as

a teacher and drawing a monthly salary of Rs.20,000/- to Rs.25,000/-.

The petitioner herein, opposed the grant of any relief under

Section 3 of the said Act. According to the petitioner, the respondent

no.1 herself had put her matrimonial life in turmoil and had created

circumstances which compelled him to divorce the respondent no.1. The

petitioner denied having not paid any amount towards a reasonable and

fair provision and maintenance during the iddat period. According to the

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petitioner, after his divorce with the respondent no.1, he had re-married

in 2002 and from the said wedlock, has three daughters. He also

contended that he had an aged mother and two unmarried sisters to look

after. The learned Magistrate, after considering the rival submissions

advanced by the parties, concluded that the petitioner had neither paid

mahr nor the maintenance amount during the iddat period, to the

respondent no.1. The learned Magistrate also came to the conclusion that

the respondent no.1 was unable to maintain herself and that the

petitioner had sufficient means to pay maintenance to the respondent

no.1 and accordingly awarded Rs.3,00,000/- to the respondent no.1 as

reasonable and fair provision and maintenance.

6. Being aggrieved by the inadequate grant of maintenance, the

respondent no.1 preferred Criminal Revision No.194/2011 and sought

enhancement of maintenance and mahr amount; whereas the petitioner

herein, also challenged the impugned judgment by filing Criminal

Revision No.37/2011, and sought quashing and setting aside of the order

passed by the learned Magistrate. The learned Additional Sessions Judge,

Akola vide judgment and order dated 12.02.2016 dismissed the criminal

revision filed by the petitioner herein, and allowed the criminal revision

filed by the respondent no.1 for enhancement of the amount of

maintenance and mahr and accordingly enhanced the maintenance and

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mahr amount from Rs.3,00,000/- to Rs.5,00,000/-. The petitioner being

aggrieved by the said enhancement of maintenance and mahr amount

from Rs.3,00,000/- to Rs.5,00,000/- has preferred this petition.

Admittedly, the respondent no.1 has not challenged the said judgment

and order dated 12.02.2016.

7. The learned Additional Sessions Judge, after considering the

material on record has considered what could be the fair and reasonable

provision and maintenance, that can be awarded to the respondent no.1.

The learned Additional Sessions Judge has considered the salary

certificate of the petitioner and has come to the conclusion that the

petitioner is having sufficient means to make reasonable and sufficient

provision for the respondent no.1. Although, the respondent no.1 had

sought total maintenance of Rs.20,00,000/- as lifetime maintenance, after

considering the material on record and after considering the capacity of

the petitioner to pay the same, the learned Additional Sessions Judge

came to the conclusion that Rs.5,00,000/- would be a reasonable and fair

provision and maintenance for the respondent no.1. As noted earlier, the

said judgment and order passed by the learned Additional Sessions Judge

has not been challenged by the respondent no.1-wife. No infirmity or

perversity could be found in the impugned common judgment and order

dated 12.02.2016, warranting interference in writ jurisdiction. The trial

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Court has rightly came to the conclusion that the petitioner had sufficient

means to make a fair and reasonable provision and maintenance of the

respondent no.1, considering the inflation.

8. Considering the aforesaid, no interference is warranted in the

impugned judgment and order. Accordingly, the petition is dismissed.

Rule stands discharged.

9. All parties to act on the authenticated copy of this order.

JUDGE

APTE

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