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Md. Nijamuddin Ansari @ … vs State Of Bihar And Anr on 2 December, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.501 of 2018
Arising Out of PS. Case No.- Year-1111 Thana- District-

MD. NIJAMUDDIN ANSARI @ NIJAMUDDIN @ NIJAMUDDIN
ANSARI, son of Md. Maneer Ansari, Resident of village-Islampur, P.S. Riga,
District-Sitamarhi

… … Petitioner/s
Versus

1. The State of Bihar

2. Sarjeena Khatoon, wife of Md. Nijamuddin and D/o Md. Isha Ansari,
Resident of village-Islampur, P.S. Riga, District-Sitamarhi

… … Respondent/s

Appearance :

For the Petitioner/s : Mr.Ajay Kr Singh No.1
For the Respondent/s : Mr.Sri Ramchandra Sahani

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date : 02-12-2019

Heard learned counsel for the petitioner and the

learned A.P.P. for the State.

The present revision petition has been filed for

setting aside the order dated 16.02.2018 passed by the learned

Principal Judge, Family Court, Sitamarhi in Miscellaneous Case

No. 159/2012 by which the learned court below has directed to

pay a sum of Rs. 3,000/- per month by way of maintenance to

the O.P. No. 2.

The brief facts of the case are that the opposite party

no. 2 had filed a case bearing Miscellaneous Case No. 159 of

2012 before the learned court of Principal Judge, Family Court,

Sitamarhi under the provisions of Section 125 Cr.P.C. for award
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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of maintenance in her favour. In the said petition, the opposite

party no. 2 has stated that her marriage with the petitioner herein

was solemnized according to Muslim customs in the month of

July, 2008 and at the time of marriage the parents of the

opposite party no. 2 had given gifts and dowry, however,

subsequently, the petitioner and her in-laws started demanding a

sum of Rs. 50,000/- and on account of non-fulfillment of the

said demand of dowry, the opposite party no. 2 is said to have

been beaten and kicked out from her matrimonial home on

26.09.2010, whereafter, an F.I.R. was also registered bearing

Riga P.S. Case No. 208 of 2010 under Section 498A of the

Indian Penal Code and Sections ¾ of the SectionDowry Prohibition

Act. It has been further stated in the said maintenance petition

that the petitioner herein is neither keeping her with him nor

maintaining her, hence the petitioner be directed to pay monthly

maintenance to the opposite party no. 2.

The learned counsel for the petitioner has submitted

that the petitioner is always ready and willing to keep his wife

and maintain her but she is not ready to continue with her

marital life and moreover, since the petitioner is a tailor by

profession, the maintenance awarded by the learned court

below i.e. a sum of Rs. 3000/- per month is quite excessive,
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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hence the same deserves to be reduced.

I have heard the learned counsel for the petitioner and

perused the materials on record as also the impugned order

dated 16.02.2018 and I find that the said impugned order has

been passed by the learned Principal Judge, Family Court,

Sitamarhi after considering the evidence of four witnesses

adduced by the opposite party no. 2 as also evidence of five

defence witnesses and upon consideration of the entire matter in

a just and legal manner. The learned court below has also come

to a finding that after the opposite party no. 2 was kicked out of

her matrimonial home, the petitioner herein had solemnized

marriage with another lady within only a week, hence it cannot

be conceived that the petitioner would keep the opposite party

no. 2 with him with dignity and due respect despite presence of

second wife, hence it is obligation of the petitioner to maintain

his legally wedded wife i.e. the opposite party no. 2. The learned

court below has further, after consideration of the facts and

circumstances of the case, fixed a meager sum of Rs. 3,000/-

per month as maintenance to be paid by the petitioner to his

legally wedded wife i.e. opposite party no. 2.

At this juncture, it would be relevant to refer to a

judgment rendered by the learned Three Judges’ Bench of the
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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Hon’ble Apex Court, reported in 2018(SCC on-line) SC 1643

(SectionReema Salkan vs. Sumer Singh Salkan), paragraph nos. 13,

14 and 16 whereof are reproduced herein below:-

“13. Be that as it may, the High Court took into
account all the relevant aspects and justly rejected the
plea of the respondent about inability to pay
maintenance amount to the appellant on the finding
that he was well educated and an able bodied person.
Therefore, it was not open to the respondent to
extricate from his liability to maintain his wife. It
would be apposite to advert to the relevant portion of
the impugned judgment which reads thus:
“79. The respondent during the cross examination has
admitted that he too is B.Com, M.A.(Eco.) and MBA
from Kentucky University, USA; the respondent is a
Canadian citizen working with Sprint Canada and is
earning Canadian $(CAD) 29,306.59 as net Annual
Salary. However, he has claimed that he has resigned
from Sprint Canada on 23.11.2010 and the same has
been accepted on 27.11.2010 and the respondent since
then is unemployed and has got no source of income
to maintain himself and his family.

80. In the instant case, the petitioner has filed the case
under Section 125 Cr.P.C., 1973 for grant of
maintenance as she does not know any skill and
specialised work to earn her livelihood i.e. in
paragraph 26 of maintenance petition against her
husband. However, the respondent husband who is
well educated and comes from extremely respectable
family simply denies the same. The respondent
husband in his written statement does not plead that
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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he is not an able bodied person nor he is able to prove
sufficient earning or income of the petitioner.

81. It is an admitted fact emerging on record that both
the parties got married as per Hindu Rights and
Customs on 24.03.2002 and since then the petitioner
was living with her parents from 10.08.2002 onwards,
and the parents are under no legal obligation to
maintain a married daughter whose husband is living
in Canada and having Canadian citizenship. The plea
of the respondent that he does not have any source of
income and he could not maintain the wife is no
answer as he is mature and an able bodied person
having good health and physique and he can earn
enough on the basis of him being able bodied to meet
the expenses of his wife. In this context, the
observation made in SectionChander Prakash v. Shrimati
Shila Rani, AIR 1968 Del 174 by this Court is
relevant and reproduced as under:

“7………an able bodied young man has to be presumed
to be capable of earning sufficient money so as to be
able reasonably to maintain his wife and child and he
cannot be heard to say that he is not in position to
earn enough to be able to maintain them according to
the family standard. It is for such ablebodied person
to show to the Court cogent grounds for holding that
he is unable, for reasons beyond his control, to earn
enough to discharge his legal obligation of
maintaining his wife and child.”

82. The husband being an ablebodied person is duty
bound to maintain his wife who is unable to maintain
herself under the personal law arising out of the
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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marital status and is not under contractual obligation.
The following observation of the Apex Court in
SectionBhuwan Mohan Singh v. Meena, AIR 2014 SC 2875,
is relevant:

“3…..Be it ingeminated that Section 125 of the Code of
Criminal Procedure (for short “the Code”) was
conceived to ameliorate the agony, anguish, financial
suffering of a woman who left her matrimonial home
for the reasons provided in the provision so that some
suitable arrangements can be made by the court and
she can sustain herself and also her children if they
are with her. The concept of sustenance does not
necessarily mean to lead the life of an animal, feel like
an unperson to be thrown away from grace and roam
for her basic maintenance somewhere else. She is
entitled in law to lead a life in the similar manner as
she would have lived in the house of her husband.
That is where the status and strata come into play, and
that is where the obligations of the husband, in case of
a wife, become a prominent one.

In a proceeding of this nature, the husband cannot
take subterfuges to deprive her of the benefit of living
with dignity. Regard being had to the solemn pledge at
the time of marriage and also in consonance with the
statutory law that governs the field, it is the obligation
of the husband to see that the wife does not become a
destitute, a beggar. A situation is not to be maladroitly
created where under she is compelled to resign to her
fate and think of life “dust unto dust”. It is totally
impermissible. In fact, it is the sacrosanct duty to
render the financial support even if the husband is
required to earn money with physical labour, if he is
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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ablebodied. There is no escape route unless there is an
order from the court that the wife is not entitled to get
maintenance from the husband on any legally
permissible grounds.

(emphasis applied)

83. The respondent’s mere plea that he does not
possess any source of income ipso facto does not
absolve himself of his moral duty to maintain his wife
in presence of good physique along with educational
qualification.”

14. The view so taken by the High Court is
unassailable. Indeed, the respondent has raised a plea
to question the correctness of the said view, in the
reply affidavit filed in this appeal, but in our opinion,
the finding recorded by the High Court is
unexceptionable.

16. We, therefore, direct the respondent to pay the
enhanced maintenance amount, as determined in
terms of this order, to the appellant within a period of
eight weeks from today after duly adjusting the
amount already deposited in Court/paid to the
appellant till date. The appellant will be entitled to
forthwith withdraw the maintenance amount deposited
by the respondent in Court, if any. The impugned
judgment of the High Court is accordingly modified in
the aforementioned terms.”

A bare perusal of the aforesaid judgment rendered by

the Hon’ble Apex Court in the case of Reema Salkan (supra)

would demonstrate that an able body young man is presumed to
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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be capable of earning sufficient money so as to be able to

reasonably maintain his wife and child and he cannot be heard

to say that he is not in a position to earn enough to be able to

maintain them according to the family standard. It is equally a

well settled law that Section 125 Cr.P.C. was conceived to

ameliorate the agony, anguish and financial suffering of a

woman who left her matrimonial home so that some suitable

arrangement can be made by the Court and she can sustain

herself as also her children, if there are any, and it is the

obligation of the husband to ensure that his wife leads a life in a

similar manner as she would have lived in the house of her

husband, hence it is the sacrosanct duty of the husband to render

her financial support and he cannot take subterfuges to deprive

her of the benefit of living with dignity, thus any plea by the

husband that he does not possess any source of income, ipso

facto does not absolve him of his moral duty to maintain his

wife.

Having regard to the aforesaid principle of law

evolved by the Hon’ble Apex Court in the case of Reema

Salkan (supra) as also in the case of Bhuwan Mohan Singh

(supra) and Chandar Prakash (supra), this Court finds from the

facts of the present case that the petitioner is under an obligation
Patna High Court CR. REV. No.501 of 2018 dt.02-12-2019
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to maintain his legally wedded wife i.e. the opposite party no. 2

and the learned Principal Judge, Family Court, Sitamarhi, has

awarded a meager amount of maintenance of Rs. 3,000/- per

month vide the impugned judgment dated 16.02.2018, thus this

Court is of the considered view that the maintenance amount so

awarded by the learned court below is not excessive specially

keeping in mind the spiraling inflation rate and high cost of

living index, prevailing today.

Having regard to the aforesaid facts and

circumstances of the case as also for the reasons mentioned

herein above, this Court is of the opinion that neither there is

any apparent error nor any infirmity in the impugned order

dated 16.02.2018 passed by the learned Principal Judge, Family

Court, Sitamarhi, hence the same does not require any

interference. Accordingly, the present petition stands dismissed.

(Mohit Kumar Shah, J)
S.Sb/-

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 09.12.2019
Transmission Date 09.12.2019

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