The obligation of a husband to provide maintenance to his wife and children under Section 125 of the Cr.P.C, even after divorce, and the consideration of evidence regarding neglect and assault.

This revision is directed against the order dated 21.09.2013 passed in Cr. Misc. Petition No. 23 of 2010 by the Principal Judge, Family Court, Dumka, whereby the petitioner-husband was directed to pay the maintenance amount @ of Rs. 2,000/-to O.P. No.2/wife and Rs. 1500/-each to her two minor sons per month.

2. Mr. Durga C. Mishra, learned counsel for the petitioner has submitted that the court below has failed to consider the fact that the petitioner had given 'talak' (divorce) to O.P. No.2 on 13.10.2009. The said talak was communicated through talaknama sent under certificate of posting on 15.10.2009. This has been supported by witnesses namely, O.P.W.1-Nazir Ansari, O.P.W.2-Suraj Ansari and O.P.W.-4 the petitioner himself. It has been argued that in the face of the talak O.P. No.2 is not entitled to maintenance as she can claim maintenance under the provisions of Muslim Woman (Protection of Rights on Divorce) Act, 1986. That in view of the provisions of the said Act the impugned order has been passed without appreciating the fact that the a divorced Muslim women cannot claim maintenance under Section 125 of the Cr.P.C.

It is urged that there is no assessment regarding the income of the petitioner thus the order granting of maintenance @ Rs. 2,000/-is exorbitant and excessive. It is submitted that the petitioner had never driven the opposite party out of the house rather she has left the house on her own accord. That there is no just ground for her to live separately from the petitioner. It is contended that O.P. No.2 has 20 bighas of cultivable land and she is running a stationery shop. On the above ground, it is contended that the said order is not sustainable in law or on facts and is fit to be set aside.

3. Mr. Indu Shekhar Gupta, learned counsel for the O.P. No.2 has countered and contended that the petitioner had not filed the talaknama. That the witnesses have made contradictory statements regarding the factum of talak. The petitioner has failed to adduce any evidence that the talaknama was received by O.P. No.2. That there is evidence that the petitioner has solemnized a second marriage with Rinky who was living with him as a concubine. That when the O.P. No.2 protested to such relationship she was driven out of the matrimonial house along with her two minor sons. That O.P. No.2 has no source of income or means to maintain herself and her minor sons that she is dependent on her father, who is a poor man. That the petitioner has agricultural land and has sufficient means of income.

4. Heard. Perused the impugned order. On the factum of divorce or talak the petitioner has examined O.P.W.-1-Nazir Ansari in the court below, in cross-examination the said witness has deposed that the present case was instituted for divorce and he had seen the O.P. No.2 about three years back and he has no knowledge about the matter between the husband and wife. This witness does not know when the O.P. No.2 was married with the petitioner. The court below has rightly held that O.P.W.-1 does not have any knowledge about the facts of the case. O.P.W.2-Suraj Ansari has deposed that he does not know when the petitioner and O.P. No.2 were married. That he was not present at the time of marriage. In cross-examination, he stated that he was present at the time of talak where Rafique Ansari, Sultan Ansari, Riyasat Ansari and Munna Ansari were present, but no rituals were performed. That the petitioner pronounced talak three times, however no 'dain meher' was paid and he had reached the meeting at the eleventh hour. He has further stated that the petitioner and the O.P. No.2 have only one son and denied that they have two sons.

O.P.W.-3 Riyasat Ansari is the brother-in-law of the petitioner-husband. He has stated that one son was born to Rahima from the wedlock. He does not know about the second son. This shows that he is suppressing the fact of birth of two sons.

O.P.W.4-Nasim Ansari is the petitioner himself and he has deposed that he cannot say