1999 ALL MR (Cri) 1670
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.D. UPASANI, J.

Sau. Shameembegum Asgarali Jahagirdar Vs. Shri Asgarali Ashrafali Jahagirdar & Anr.

Criminal Writ Petition No.763 of 1992

21st April, 1999

Petitioner Counsel: MR. M.A. PATIL
Respondent Counsel: MR. M.R. DESHPANDE, MRS. USHA V. KEJARIWAL, A.P.P.

Criminal P.C. (1973), S.125- Maintenance- Husband employed and getting about Rs.2000/- P.M. as salary- He had to maintain his second wife, who was also legally wedded as per muslim law, and four children - Income from agricultural land not proved - Held Rs.300/- P.M. granted to her was reasonable and warranted no interference.

JUDGMENT

JUDGMENT :- This Criminal Writ Petition is filed by the Petitioner- wife, being aggrieved by the order dated 7th January, 1992 passed by the VI Additional Sessions Judge, Solapur, partly allowing her Revision Application No.131 of 1990, directing the Respondent No.1 husband to pay the amount of Rs.300/- by way of monthly maintenance to the Petitioner-wife, instead of Rs.200/- per month, as awarded by the Judicial Magistrate, First Class, Solapur. This maintenance amount was directed to be given from the date of application made by the Petitioner i.e. from 1st February, 1989 till the date of divorce of the parties i.e. till 5th October, 1989.

2. Few facts which are required to be stated are as follows:

The Petitioner Shameembegum Asgarali Jahagirdar was the legally wedded wife of Asgarali Ashrafali Jahagirdar. Their marriage was solemnised at Solapur on 26th December, 1985 as per Muslim Personal Law.

3. The Petitioner went to reside with Respondent No.1 at the matrimonial home at Salgaon. For two years, she stayed with Respondent No.1. Thereafter, she came to her parents' place for delivery, and daughter Fahim was born out of said wedlock. Respondent No.1 was informed about the birth of daughter Fahim, however, neither Respondent No.1, nor any other person from his family came to see the Petitioner or the newly born daughter. After few days, the Petitioner herself went to the matrimonial home, on her own accord, for cohabiting with Respondent No.1. However, Respondent No.1 did not allow her to enter the house and refused to accept her. As per the case of the Petitioner, Respondent No.1 told her that he did not like her, and therefore, she could not reside with him. The Petitioner was therefore, constrained to reside outside the matrimonial home for 22 days. Ultimately, persons from their community intimated the fact to Petitioner's parents, and she came back to Solapur from Saigaon with her brother, and since then, she is residing with the brothers only. Attempts for reconciliation were made, but Respondent No.1 refused to accept the Petitioner.

4. Case of the Petitioner further is that Respondent No.1 performed second marriage and had children from his second wife. He failed and neglected to maintain the Petitioner. Petitioner's brother used to look after her, but later on, they also were not ready to look after her. They arranged the marriage of Petitioner's daughter Fahim, but Respondent No.1 did not come to attend the said marriage also, nor did he make any provision for maintenance of the Petitioner for the last 20 to 25 years and continued to neglect her.

5. Petitioner's case was that she had no independent source of income, and she was unable to maintain herself. According to her, her husband/Respondent No.1 was serving in Health Department and was earning Rs.2,000/- per month as salary. He also had, according to her, 20 acres of agricultural land at Saigaon, and was earning Rs.50,000/- per year from the said agricultural lands. The Petitioner is not willing to reside with Respondent No.1 husband, since he has performed the second marriage, and is residing with his second wife and their children. In view of this situation, application dated 1st February, 1989 was made by the Petitioner in the court of the Judicial Magistrate, First Class, Solapur, under Section 125 of the Code of Criminal Procedure, 1973, praying that she be awarded Rs.500/- per month as maintenance.

6. Respondent No.1/husband Asgarali Jahagirdar resisted the said application by filing written statement. He admitted that Petitioner was his legally wedded wife, and that, daughter Fahim was born out of the said wedlock. However, his contention was that the Petitioner was very much attached to her parents house, and that, she was under their pressure, and wanted to stay there only. He further stated that after delivery, despite his attempts to bring her back, the Petitioner was not willing to stay with him, and therefore, he was constrained to perform second marriage. He admitted that he had two sons and two daughters from the second wife. He denied that he was having agricultural lands, though he admitted that he was employed. He also filed additional written statement and mentioned that he gave divorce to the Petitioner on 5th October, 1989.

7. The learned Judicial Magistrate, First Class, Solapur, after hearing both the sides, gave a finding that Petitioner has succeeded in proving that her husband had failed and neglected to maintain her, and that, she was unable to maintain herself. He therefore, by his Judgment and order dated 18th June, 1990, partly allowed the application of the Petitioner, and ordered the opponent/husband to pay Rs.200/- per month as maintenance from the date of the Petitioner's application till 5th October, 1989. He also ordered that the husband should pay the cost of Rs.100/- to the Petitioner.

8. Being aggrieved by the Judgment and Order passed by the Judicial Magistrate, First Class, Solapur, the Petitioner Shameembegum Asgarali Jahagirdar filed Criminal Revision Application No.131 of 1990. It was her grievance that the manitenance amount of Rs.200/- per month, which was awarded to her, was inadequate, and that, considering the income of the Respondent No.1, maintenance amount of Rs.500/- per month ought to have been awarded.

9. The learned VI Additional Additional Sessions Judge, Solapur, after hearing both the sides, partly allowed the said revision, and enhanced the maintenance amount of Rs.200/- per month to Rs.300/- per month. However, the Petitioner was not happy with this verdict also, and has approached this Court, by way of present Writ Petition, praying that both the Courts committed error in not awarding maintenance of Rs.500/- per month.

10. I have heard Mrs. Usha V. Kejariwal, the learned A.P.P. appearing for Respondent No.2. I have also perused Judgments of both the lower Courts. In my opinion, the maintenance amount, awarded by the Sessions Court is reasonable, in view of the fact that the only admitted position is that the husband is employed and is getting about Rs.2,000/- per month as salary. It is also an admitted position that he has to maintain his second wife, who is also a legally wedded, as per the Muslim Personal Law, and four children. As against this, the Petitioner, it appears, has not been able to prove anything about the so-called agricultural land of Respondent No.1/husband. Just a statement is made that he is getting Rs.50,000/- per year from the agricultural lands. The Respondent No.1 has specifically denied this. The finding of the Lower Court is that the agricultural land is a joint-family property and that, further it is not irrigated land, and therefore, the amount awarded by the learned VI Additional Sessions Judge, Solapur, appears to be reasonable, which does not warrant interference. In view of this, following order is passed:

Criminal Writ Petition No.763 of 1992 is dismissed. Rule discharged.

Petition dismissed