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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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