2004 ALL MR (Cri) 101
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA, J.

Mohammad Aslam S/O Shaikh Hussain Vs. Smt. Qamarunnisa W/O Mohammad

Criminal Revision Application No.34 of 2000

6th October, 2003

Petitioner Counsel: Shri. R. A. KHAN
Respondent Counsel: Shri. T. A. MIRZA

Criminal P.C. (1973), S.125 - Maintenance - Application for - Application filed by wife - Wife to prove only the fact that husband having sufficient means but neglected her or refused to maintain her - Acquittal of husband from the charge made against him under S.498-A of IPC - Acquittal will no way take away the right of wife to claim maintenance under S.125 from her husband.

The contingencies contemplated under Section 498-A of Indian Penal Code revolve around act of cruelty committed by the husband or relatives of husband against the woman whereas Section 125 of Code of Criminal Procedure operates in completely distinct and different situation and pertains to grant of maintenance to wife, children and parents, if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself as well as his legitimate or illegitimate minor child, whether married or not and is unable to maintain himself, etc. Since these two provisions operate in entirely different areas and merely because prosecution failed to prove cruelty against the husband for the offence punishable under Section 498-A of Indian Penal Code, it does not take away the right of the wife and children, which is given to them under Section 125 of Code of Criminal Procedure and the wife is only required to prove that her husband having sufficient means neglected her or refused to maintain her and she is unable to maintain herself. In the instant case, respondent wife has proved the ingredients of Section 125 of Code of Criminal Procedure, which are independent in nature and, therefore, acquittal of the applicant by the competent Criminal Court for the offence punishable under Section 498-A of Indian Penal Code does not in any way affect right of the respondent wife under Section 125 of Code of Criminal Procedure. [Para 7]

JUDGMENT

JUDGMENT :- Heard Shri. Khan, learned Counsel for the applicant, and Shri. Mirza, learned Counsel for the respondent.

2. The revision is directed against the judgment and order dated 22.1.2000 passed by the Family Court, Nagpur in Petition No.E-49/1997 whereby petition filed by the respondent wife under Section 125 of Code of Criminal Procedure for grant of maintenance was allowed and applicant was directed to pay maintenance at the rate of rupees five hundred per month to respondent wife and rupees three hundred per month to Master Mohammad Mohsin (son of applicant). The applicant is directed to pay total amount of rupees eight hundred per month towards maintenance.

3. The case of the respondent wife, in nutshell, is as follows :

The respondent (original petitioner no.1) is the legally wedded wife of the applicant and original petitioner no.2 Master Mohammad Mohsin is the child born out of this wedlock. The case of the respondent is that applicant used to beat her under the influence of liquor and demand rupees ten thousand from the respondent to be brought from her father towards dowry. The applicant used to threaten the respondent with dire consequences, if she fails to bring rupees ten thousand from her father. It is the case of the respondent wife that mother, brother and sister-in-law of the applicant also used to harass her and on 11.7.1996, they forced her to leave the matrimonial house and since then, she is residing with her parents. It is the further case of the respondent wife that applicant despite having sufficient means neglected her and refused to maintain her and, therefore, she and her child are entitled for maintenance.

4. Shri. Khan, learned Counsel for the applicant, states that the respondent wife had initiated proceedings against the applicant for the offence punishable under Section 498-A of Indian Penal Code on the ground of cruelty. However, those proceedings have resulted in acquittal of applicant and, therefore, allegations of cruelty made by the respondent wife against applicant husband are misconceived and, therefore, respondent is not entitled for any maintenance. It is contended by the learned Counsel that so far as demand of rupees ten thousand is concerned, there is a discrepancy in the evidence of the respondent wife and, therefore, she failed to prove this fact and hence, she has not made out a case of grant of maintenance under Section 125 of the Code of Criminal Procedure. It is further contended that income of the applicant is only rupees three hundred per month and, therefore, it is not possible for him to provide maintenance as directed by the Family Court. It is further argued by the learned Counsel for the applicant that respondent wife left her matrimonial home on her own and deserted the applicant and, therefore, she is not entitled for maintenance.

5. On the other hand, Shri. Mirza, learned Counsel for the respondent, supported the impugned judgment and order and contended that the respondent was ill-treated by the applicant and was driven out of the house on 11.7.1996 and since then she is residing with her parents. It is contended that applicant has not issued any communication or notice to the respondent for restitution of conjugal rights, which reveals the ill intention of the applicant. It is further contended that applicant is working with his brother, who is owning ribbon factory and, therefore, amount of maintenance awarded by the Family Court to the respondent and her child is just and proper.

6. I have considered the contentions canvassed by the learned respective Counsel for the parties. It is not in dispute that the respondent is the legally wedded wife of the applicant and Master Mohammad Mohsin is the son born out of the said wedlock. It is also not in dispute that the respondent is residing with her father since 11.7.1996 and applicant has not issued any communication or notice to the respondent for restitution of conjugal rights. The Court below on the basis of evidence on record has observed that applicant is doing business of ribbon manufacturing along with his brother and is earning rupees seven thousand to ten thousand per month from the said business. As against the above mentioned version of the respondent wife, the applicant's case is that his father is a hawker and selling ribbon by going to door to door and the ribbon factory is owned solely by the brother of the applicant and applicant is merely working in the said factory as labour and earning rupees three hundred per month. It is also not in dispute that no registration certificate of proprietorship of the factory showing brother of the applicant alone as the owner of the factory, is placed on record. On the basis of evidence, the Family Court has come to the conclusion that applicant has sufficient means to maintain respondent and her child and he has refused to maintain them without sufficient reasons. The Family Court is also justified in holding that in absence of any notice from the applicant for restitution of conjugal rights, it is difficult to presume that the applicant wanted that the respondent wife should come back and cohabit with him. On the backdrop of these aspects, I am of the view that if applicant really wanted respondent to come and cohabit with him, he ought to have issued some communication to indicate his intention to respondent wife. However, applicant has neither issued notice to the respondent wife for restitution of conjugal rights nor there is anything on record to demonstrate that the applicant really wanted to bring her back after 11.7.1996.

7. The contention of the learned Counsel for the applicant that the applicant is acquitted of the offence punishable under Section 498-A of Indian Penal Code and, therefore, the Family Court has erred in holding that the respondent wife is entitled for maintenance under Section 125 of Code of Criminal Procedure is misconceived and devoid of substance. The provisions of Section 498-A of Indian Penal Code are attracted when a woman is subjected to cruelty by her husband or relatives of husband. For the purpose of Section 498-A of Indian Penal Code 'cruelty' means any wilful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health or with a view to coerce her on any person related to her to meet any unlawful demand for any property or valuable security. It is, therefore, evident that the contingencies contemplated under Section 498-A of Indian Penal Code revolve around act of cruelty committed by the husband or relatives of husband against the woman whereas Section 125 of Code of Criminal Procedure operates in completely distinct and different situation and pertains to grant of maintenance to wife, children and parents, if any person having sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself as well as his legitimate or illegitimate minor child, whether married or not and is unable to maintain himself, etc. Since these two provisions operate in entirely different areas and merely because prosecution failed to prove cruelty against the husband for the offence punishable under Section 498-A of Indian Penal Code, it does not take away the right of the wife and children, which is given to them under Section 125 of Code of Criminal Procedure and the wife is only required to prove that her husband having sufficient means neglected her or refused to maintain her and she is unable to maintain herself. In the instant case, respondent wife has proved the ingredients of Section 125 of Code of Criminal Procedure, which are independent in nature and, therefore, acquittal of the applicant by the competent Criminal Court for the offence punishable under Section 498-A of Indian Penal Code does not in any way affect right of the respondent wife under Section 125 of Code of Criminal Procedure.

8. In view of the above referred facts and circumstances and for the reasons stated hereinabove, no case is made out for showing any indulgence. The criminal revision application is dismissed.

Application dismissed.