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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
SMT. MRIDULA R. BHATKAR, J.
Mrs. Farzana Ansari
Vs.
Mr. Abid Ali Ansari
Criminal Revision Application No. 38 of 2013
Decided On: 24th February, 2014
Criminal Procedure Code, 1973 - Section 125 - Grant of maintenance to wife. - Since husband, a professor, drawing salary of Rs. 40,000/- p.m. and staying with his family hence maintenance of Rs. 5,000/- p.m. granted to wife. - While fixing the amount of the maintenance, it is necessary to ascertain the financial position of the husband. In the present case, the respondent/husband is a professor drawing Rs. 40,000/- per month as a gross salary. The applicant has produced the salary certificate of the respondent/husband which shows his take home salary is Rs. 26,105/-. It is argued by the counsel for the respondent/husband that the respondent has to pay tax so also he has to pay premium of the car loan which he has purchased three years back. It was also submitted that the respondent is staying with his family where and has to shoulder the responsibility of his parents, one brother and one sister. The document shows that he is getting net salary of Rs. 26,105/- per month. The couple does not have an issue. The father, though retired and all are staying together, it cannot be said that the father, mother, brother and sister are entirely depended On the respondent/ husband. Undoubtedly, the respondent must be sharing some financial responsibility of his family as they are staying together. So also though, this argument that has he has to pay premium towards the car loan and therefore he cannot be asked to pay the maintenance cannot be accepted and is not convincing. To pay reasonable maintenance is his legal obligation. Considering this and the financial condition of the respondent/ husband the amount of Rs. 5000/- per month towards the maintenance under Section 125 of CrPC is an appropriate amount. He is also directed to pay the arrears from the date of filing of the application under Section 125 of CrPC at the rate of Rs. 5000/- per month and the amount paid under Section 125 is to be adjusted towards the areas.
Rule. With the consent of the parties made returnable forthwith.
2. This Criminal revision is directed against the Judgment and order dated 19/11/2013 passed by the Additional Sessions Judge, FTC-II, South Goa, Margao in Criminal Revision Application No. 29/2012. The applicant/wife has filed application under section 125 of the Criminal Procedure Code before the Judicial Magistrate First Class for maintenance bearing No. 2/M/2011/C. The said maintenance application was allowed after recording the evidence of the applicant/wife and her father and the respondent was directed to pay maintenance of Rs.10,000/- per month on or before every 7th day of every month. Being aggrieved by the said order, the respondent/husband filed criminal revision before the learned Sessions Judge and the learned Sessions Judge allowed the said revision and quashed and set aside the order of maintenance passed by the learned JMFC. Hence, this criminal revision application.
3. The marriage between the applicant and respondent was solemnized on 9/11/2009 as per the Muslim rites and ceremony at Kasai District, Kushi Nagar, Uttar Pradesh. The applicant and respondent stayed together in the house of the respondent along with family members of the respondent. The marriage was consummated and after few days, the respondent as per the case of the applicant, the respondent/husband changed his behaviour. There was a demand of dowry not only from his family members but also from him. She was harassed and assaulted by the respondent/husband. The family members of the respondent/husband also contributed to the harassment. To fulfill the constant monetary demand the father of the applicant/wife paid Rs. 3.00 lakhs in cash to the respondent and also purchased L.C.D T.V. However, the matter was not settled. The demand continued so also the harassment. The applicant/wife thereafter felt that it was not possible for her to continue to stay with him and due to harassment, she was compelled to leave the matrimonial house and she returned to her father's house at Vascoda-Gama-Goa. She again went to her house, but however, she suffered harassment and therefore came back and started residing with her father. It is the case of the applicant that she is not working and is totally dependent on her the respondent/husband. At present, she is residing with her father and therefore she applied for maintenance under section 125 of Cr.P.C.
4. Learned counsel for the applicant/wife has submitted that the applicant/wife has filed application under section 125 of the Cr. P.C. in which she was granted maintenance of Rs. 10,000/- per month from respondent/husband. Similarly, she has filed a proceeding under section 22 of the Domestic Violence Act and prayed for maintenance and in the said matter also, she was awarded amount of Rs. 10,000/- towards maintenance. Learned counsel submitted that against both the orders, the respondent/husband has filed revision applications before the Sessions Court and both the revisions applications were allowed by setting aside the orders passed by the respective JMFC granting maintenance in both the proceedings i.e. under section 125 of C.P.C and so also under section 22 of the D.V. Act. He submitted that the order passed by the learned Sessions Judge is incorrect and bad in law as the applicant/wife is deprived of her right to have maintenance from her husband. Learned counsel submitted that the applicant/wife though she is B.Sc in Botany with MBA, her qualification in MBA is not from a recognized university. At present, she is jobless. It is his submission that though she is finding out a job, it is not easy to get a job in Goa. He further submitted that prior to her marriage, she was working and earning some money, however, the said job was in Bangalore that is far from her father's house and it is not possible for her to go there and get job. He further submitted that on the other hand the financial position of the respondent/husband is sound. He
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