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2017 Supreme(Pat) 826
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Dr. Shayan Ahmad, Son of Late Dr. Salahuddin Ahmad - Petitioner
Versus
The State of Bihar & Ors. - Opposite Parties
Criminal Miscellaneous No.6787 of 2017
Decided On : 15-09-2017
For the Petitioner:Mr. Mukesh Kumar Singh, Advocate
For the Opposite Parties :Mr. Jharkhandi Upadhyay, Mr. Sandeep Kumar Advocate, Mr. Sahid Salim Khan Advocate, Mr. Kaushal Kishore, Advocate
The duty to award maintenance arises when the husband neglects and refuses to maintain the wife, considering his capacity to pay.
Headnote:
Section 125 of the Cr.P.C. - Maintenance - 125 - Summary: The court upheld the order for interim maintenance of Rs.15,000 per month to the wife under Section 125 of the Cr.P.C. considering the husband's sufficient means and the wife's inability to maintain herself.
Fact of the Case:
The petitioner challenged an order directing him to pay Rs.15,000 per month as interim maintenance to his wife in a marital discord case.
Finding of the Court:
The court found that the wife had no income and the petitioner, a dental surgeon with clinics and other properties, had sufficient means to support her.
Issues: Marital discord, claim for maintenance, petitioner's financial capacity, and wife's inability to maintain herself.
Ratio Decidendi: The court emphasized that the right to claim maintenance is not dependent on who is at fault in matrimonial disputes, and the duty to award maintenance arises when the husband neglects and refuses to maintain the wife, considering his capacity to pay.
Final Decision: The court dismissed the application, upholding the order for interim maintenance of Rs.15,000 per month to the wife.
By way of the present application preferred under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), the petitioner has challenged the order dated 14.12.2016 passed by the learned Additional Principal Judge, Family Court, Patna in Maintenance Case No. 353 (M) of 2015 whereby the petitioner has been directed to pay a sum of Rs.15000/- per month to opposite party no. 2 as interim maintenance.
2. This is a case of marital discord. Brief facts of the case leading to this application are that the petitioner and the opposite party no. 2 got married on 04.09.2011 according to Muslim rites and customs. After marriage, the petitioner was taken to her matrimonial house at Jehanabad where she started to lead a happy conjugal life. Subsequently, the relationship between the parties got strained. The opposite party no. 2 filed a case under Section 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act against the petitioner, vide Gardanibagh P. S. Case No. 370 of 2015, for subjecting her to cruelty for non-fulfilment of dowry.
3. In August, 2015, the opposite party no. 2 filed Maintenance Case No. 353 (M) of 2015 under Section 125 of the Cr.P.C. in the court of Principal Judge, Family Court, Patna.
4. In the maintenance case, she has claimed Rs.1,00,000/- per month as maintenance allowance and also a sum of Rs.1,00,000/- to meet the expenses of her litigation with the petitioner. She has also claimed Rs.1,00,000/- per month as interim maintenance.
5. In the said application under Section 125 of the Cr.P.C., she has pleaded that she was doing a job in CBSE Regional Office at Patna since before her marriage, but she had to leave her service under instruction of the petitioner after the marriage. Thereafter, she became totally dependent upon him. She continued to live in her matrimonial home despite atrocities from the petitioner and his family members with an expectation that she would be accepted by her in-laws but misfortune continued in her matrimonial life. She witnessed the petitioner in an objectionable condition with a woman in his clinic at Patna to which she objected, which got the petitioner further annoyed with her.
6. She has further pleaded that she was ousted from her matrimonial house on 05.05.2014 as such she had to take shelter in her maika as the petitioner did not give a single penny towards her maintenance. She has pleaded that her father is predeceased and her mother has a small income from rent and she has to depend upon her brother as she has become a jobless lady and is quite unable to maintainable herself at her own.
7. She has further pleaded that her husband is a Dental Surgeon practicing since 2009 and his income from his two clinics both at Patna and Jehanabad is approximately Rs.1,50,000/- per month. Apart from that he owns Flat No. 101 in Shrazeta Complex, South Gandhi Maidan, Patna which earns monthly rent of Rs.18,000/-, one marriage hall at Jehanabad from which he earns more than Rs.50 lacs per year, landed property at Khagaul, Patna and two cars and a flat at Nausha, Patna, but despite the aforesaid valuable property and monthly income thereof approximately Rs.5,65,000/-, he does not pay a single farthing to her towards maintenance.
8. The said application is contested by the petitioner contending that he is a young dental doctor struggling for his future for which he has opened a clinic at Patna and sometimes he also goes to Jehanabad depending upon availability of patients. He is struggling for bread and butter whereas the opposite party no. 2 thinks that he is playing in millions, which is the bone of contention and the opposite party no. 2 had deserted the petitioner.
9. Learned counsel for the petitioner submitted that the petitioner’s wife is an educated and highly ambitious lady and since the petitioner is unable to bear all her expenses, she has deserted him. He submitted that the learned Principal Judge, without proper appreciation of the income of the
