Allowed

G. Mehtaj Begum v. T. Haji Vali

Telangana HC26 Oct 2009CRLRC/1193/2009

Case brief

AI extract

What is this about?

A revision challenging the dismissal of a maintenance petition was allowed. The High Court held that the respondent must maintain his minor son and cannot cite the child's procedural delay as an excuse. For the divorced wife, the court held that failure to adduce evidence did not justify denial of interim maintenance, setting aside the lower court's order and directing payment.

What did the court decide?

Impugned order set aside. Respondent directed to pay interim maintenance of Rs.1000/- per month each to petitioners pending disposal of the main case.

G. Mehtaj Begum Vs T. Haji Vali — Maintenance and Alimony | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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Criminal Revision Case No. 1193 of 2009

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Date: 26.10.2009

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Between:

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G. Mehtaj Begum and another.

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.. Petitioners/Petitioners

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And

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T. Haji Vali and another

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.. Respondents/Respondents.

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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Criminal Revision Case No. 1193 of 2009

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Judgment:

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This revision case has been filed challenging the order dated 01.07.2009 passed by the Judicial Magistrate of First Class, Dharmavaram, in Crl. M.P. No. 4751 of 2007 in M.C. No.9 of 2007, whereby and whereunder the petition filed by the petitioners praying to grant interim maintenance to them was dismissed.

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In spite of service of notice, none appeared for the first respondent nor is there any representation made on his behalf.

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Heard the learned counsel for the petitioners.

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The brief facts of the case are as follows. The first petitioner is the wife of the respondent and the second petitioner is their minor son aged about 1 ½ years as on the date of filing of the petition before the lower Court. The petitioners filed M.C. No.9 of 2007 against the respondent seeking maintenance of Rs.3,000/- per month each. The specific case of the petitioners is that they are unable to maintain themselves and that they have no source of income and therefore they may be granted interim maintenance of Rs.1500/- per month each, totaling to Rs.3,000/- per month. Their further case is that the respondent is doing business and he is looking after four silk houses, namely Ramani Silk house, Rajitha Silk house, Rajya lakshmi Silk house, Vinoda lakshmi Silk House, which are income tax assesses. It is also the case of the petitioners that the respondent is having 10 houses and getting an amount of Rs.10,000/- per month towards rents

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and the income from four silk houses and the rents from the houses put together are shown at Rs.40,000/- per month. The petitioners also gave the door numbers of the houses of the respondent.

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The respondent filed his counter contending that he had divorced the first petitioner on 07.12.2006. Thus the specific case of the respondent is that the first petitioner is not entitled to seek maintenance from him. As far as the second petitioner is concerned, the respondent’s case is that he is ready to take the second petitioner with him. It is also his case that he is working as a Gumasta in a silk house by name Rajya Lakshmi Silks on a monthly salary of Rs.1100/only for the last four years. His further case is that the first petitioner is a degree holder in bachelor of science and she is working as a teacher in a private school on contract basis and that she knows the tailoring work and hand work on silk sarees and earning about Rs.4,000/- per month.

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None were examined either on behalf of the petitioners or on behalf of the respondent and also no documents were marked before the lower Court.

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The lower Court, when it was argued that the first petitioner is not entitled for maintenance on the ground that the respondent had divorced her, observed that at the interlocutory stage the Court would not look into the merits of the case. Further, the lower Court observed that the respondent filed his counter on 11.01.2008 and the matter was posted for enquiry, but since then the petitioner has not come forward to adduce evidence till today and these circumstances go to show that the petitioner herself dragged on the matter without adducing any evidence and therefore the petitioners are not entitled to any interim maintenance from the respondent and accordingly dismissed the petition.

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The learned counsel for the petitioners, relying on the judgment i n Usman Khan Bahamani v. Fathimunnisa Begu m^[1] , submitted that even a divorced muslim woman is entitled to maintenance till she remarries and that the reasoning assigned by the lower Court in dismissing the petition is not reasonable.

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The only point that arises for consideration is whether the petitioners are entitled to interim maintenance?

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On the face of it, the order of the lower Court is illegal and the same is liable to be set aside, because on admitted facts it is clear that the second petitioner is the son of the respondent and the second petitioner was aged about 1 ½ years on the date of filing the petition and no evidence is required to say that the second petitioner is unable to maintain himself and it is obligatory on the part of the respondent to provide maintenance to his minor son. The child cannot be held responsible for the delay, if any, caused in commencing the trial. Therefore, the impugned order of the Court below is liable to be set aside on this ground alone.

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Coming to the case of the first petitioner, the lower Court itself observed that the disputed questions of fact cannot be decided at the interlocutory stage and therefore, there is no need to discuss whether a divorced muslim woman is entitled to seek maintenance or not. However, in Usman Khan Bahamani’s case (1 supra), the issue appears to have been answered in favour of a divorced woman. Merely because the first petitioner failed to adduce evidence in the maintenance case for some period, it cannot be said that she is not entitled for interim maintenance. Therefore, the lower Court is not justified in not granting interim maintenance to the first petitioner.

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Having regard to the facts and circumstances of the case and considering the rival contentions, the revision case is allowed and the

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impugned order is set aside. The respondent is directed to pay interim maintenance of Rs.1000/- (Rupees One Thousand) per month each to the petitioners 1 and 2, pending disposal of the maintenance case, from the date of filing of Crl. M.P. No. 4751 of 2007 in M.C. No.9 of 2007. The trial Court is also directed to dispose of the M.C No. 9 of 2007 as early as possible, preferably within a period of six months from the date of receipt of a copy of this order.

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______________________ B. CHANDRA KUMAR, J. Date: 26.10.2009 Nsr

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[1] 1990 Cri LJ 1364 = AIR 1990 AP 225 (FB)

G. Mehtaj Begum v. T. Haji Vali

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G. Mehtaj Begum v. T. Haji Vali

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