The High Court dismissed an appeal against an order granting monthly maintenance to a wife under Section 125 CrPC. The Court held the husband failed to prove the alleged divorce and affirmed the lower court's award despite claims of long separation.
None granted in the criminal appeal. Maintenance of Rs.1300/- per month upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO. 155 OF 2008
Sayyed Ahmed Aajamiya @ A. A. Sayyad, Aged : 49 years, Occ : Service, R/o G.M. Telicom, OFC Project, 2nd Floor, Near Wireless compound, Juhu Varali, Santa Cruse, Mumbai – 54.
... PETITIONER ( Ori. Non-Applicant)
V E R S U S
... RESPONDENTS ( No.1 Ori. Applicant)
Mr. R.H.Wagh, Advocate i/b Mr. B.V.Wagh, Advocate for the Petitioner. Mr. M.G.Mustafa, Adv. and Mr. A.G.Ansari, Adv. for Respondent No.1. Mr.S.R.Palnitkar, APP for Respondent No.2.
CORAM : T.V. NALAWADE, J. DATE : 11th December, 2014.
JUDGMENT:
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Criminal Revision No.131 of 2006, which was pending in the Court of Additional Sessions Judge-2, Ahmednagar. The revision was filed by the present Petitioner against the judgment and order of Criminal Miscellaneous Application No.2 of 2003, which was pending in the Court of Judicial Magistrate (First Class), Ahmednagar. The J.M.F.C. has allowed the proceeding filed by the present Respondent, the wife of the Petitioner, for maintenance under Section 125 of the Code of Criminal Procedure and the learned J.M.F.C. has granted maintenance at the rate of Rs.1300/- per month (decision dated 27th April, 2006).
2 It is the case of the wife that her marriage with the present Petitioner was solemnized in the year 1973 and the marriage is still in existence. It is her case that she cohabited with the present Petitioner initially in Mumbai. It is her case that during cohabitation, she delivered one daughter and two sons. The daughter is married, but two sons are not yet married. It is the case of the wife that her husband had extramarital affairs and he was not taking care of the family and he was not providing anything for their maintenance. It is her case that she cohabited for many years with the hope that one day the things will improve. It is her case that her husband then drove her out of the matrimonial house and she started living in the house of her parents. It is her case that in the year 2002, a notice was sent to the husband
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through an Advocate, but he did not give response to the notice.
3 It is the case of the wife that she is not able to maintain herself and she is required to pay for rent, medicines etc. It is her case that the husband is not providing anything for her maintenance. It is her case that the husband is working in Railway and his monthly salary is more than Rs.22,000/-. It is her case that the husband owns house property in Mumbai and he gets Rs.5,000/- to Rs.7,000/- per month by way of rent. She had claimed monthly the maintain of Rs.1500/-.
4 The husband contested the proceedings. He admitted that
he had married with the original Applicant. He contended that dispute started in the year 1979 as the behaviour of the wife was not proper. It is his case that the wife was asking him to live separate from parents and for that he was not ready. It is his case that the wife left his company on her own and even after making many attempts, she refused to return to the matrimonial house.
5 It is the case of the husband that he had not kept any relation with the wife after the dispute and then he gave irrevocable divorce on 3rd October, 1980 before Chief Kazi of Mumbai. He contended that after the divorce, he did not keep any relations with the wife, and so, the wife has no right to claim maintenance in the
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proceedings, which was filed in the year 2003 under Section 125 of the Code of Criminal Procedure.
6 Both the sides gave evidence before the J.M.F.C.. The wife produced record like copy of the notice issued to the husband for settling the dispute. She produced the record of the property of the husband and also salary slip of the husband. The husband gave evidence and he produced the record to prove that he had given Talaq.
7 The learned J.M.F.C. has held that the husband has failed to prove that he had given Talaq. In view of the defence taken by the husband and the evidence given by the wife, the learned J.M.F.C. granted maintenance at the rate of Rs.1300/- per month.
8 The learned counsel for the Respondent place reliance on some reported case like 2010 Cri. L. J. 521, Supreme Court,
(Shabana Bano Vs. Imran Khan) , 2012 All MR (Cri) 1180, Bombay High Court, Nagpur Bench, (Alhaj Ezaj Hasan s/o. Akhtar Hasan Vs. Smt Shabana Anjum d/o. Samsherkhan and another) and 2010 Cri. L. J. 1506, Karnataka High Court, (Hussain S/o Goususab
Mujawar Vs. Smt. Nagina and another) .
9 It is now settled position of law that even if there is Talaq, it
is the responsibility of the husband to make provisions for maintenance
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of the divorced wife during Iddat period. He should make such provision, which will be sufficient for her maintenance during the remaining period of her life. If he is not in a position to give lumpsum amount, he can take installments and he can pay monthly maintenance to the divorced wife. Such relief can be claimed under the provisions of Muslim Women (Protection of Rights on Divorce) Act. If the husband is not able to prove the divorce, then the maintenance can be claimed even under Section 125 of the Code of Criminal Procedure. On facts, the criminal Court is required to ascertain as to whether there is sufficient material for presumption that the divorce was given. Inquiry, which is required to be made in a proceeding filed under Section 125 of
the Code of Criminal Procedure is of summary nature. The Courts below have held that the husband has failed to prove Talaq. Thus, on both the counts, the husband cannot dispute the right of original Applicant Smt. Sayyad Jarinabi Ahmed to get maintenance from him.
10 The submissions made by the learned counsel for the husband that after many years of starting living separate she filed proceedings and so she is not entitled to get maintenance, is also not acceptable. The wife must have become aged now and if due to age and other factors, she is not able to make income, the husband is bound to make some provisions for her maintenance. Considering the status of the
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parties, meager amount of maintenance was granted. Not much was
argued on the point of quantum of maintenance.
11 In the result, the petition stands dismissed.
[ T.V. NALAWADE, J. ]
ndm
3 issues framed by the court
Whether a divorced wife can claim maintenance under Section 125 CrPC when the husband fails to prove the divorce.
Whether a wife entitled to maintenance can delay her claim after living separately for many years.
What is the quantum of maintenance to be granted to an aged wife.
Colour shows how this judgement treated each authority
Shabana Bano Vs. Imran KhanReferred¶31
2010 Cri. L. J. 521, Supreme Court · Who else cites this
Alhaj Ezaj Hasan s/o. Akhtar Hasan Vs. Smt Shabana Anjum d/o. Samsherkhan and anotherReferred¶31
2012 All MR (Cri) 1180, Bombay High Court
Hussain S/o Goususab Mujawar Vs. Smt. Nagina and anotherReferred¶31
2010 Cri. L. J. 1506, Karnataka High Court · Who else cites this
2 provisions across 2 enactments
Sayyed Ahmed Aajamiya @ A. A. Sayyad
Smt. Sayyad Jarinabai Ahmed
State of Maharashtra
T.V. NALAWADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
