CRLR/92/2008 of MOHSIN @ MASIM MAHGIR Vs STATE and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL REVISION NO. 92 OF 2008

Sri Mohsin @ Masim Mahgir S/o Sri Chhote, R/o Mohalla Dairia, Gokaldas School, (Near Tent House), Moradabad, District Moradabad.

……… Revisionist

Versus

State of Uttarakhand and two others.

…….Respondents

Dated: October 20, 2008

Sri G.C. Lakhchaura, Adv. for the revisionist, Sri M.A. Khan, Brief Holder for the State/respondent no.1, None for respondent nos. 2 & 3.

HON. DHARAM VEER, J.

This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19(4) of the Family Courts Act, 1984, is directed against the judgment and order dated 30.04.2008 passed by Judge, Family Court, Udham Singh Nagar in case no. 4 of 2006 Smt. Sahmima and another vs. Sri Mohsin @ Masim Mahgir, whereby the learned Judge, Family Court has allowed the petition u/s 125 Cr.P.C. filed by the wife-respondent no.2 and directed the revisionist-husband to pay maintenance to the tune of Rs. 500/- per month to the wife-respondent no.2 and Rs. 300/- per month to the son-respondent no.3 from the date of filing the application by 7[th] of every month.

2. Heard Sri G.C. Lakhchaura, Adv. for the revisionist and Sri M.A. Khan, Brief Holder for the State/respondent no.1. None is present on behalf of the respondent nos. 2 & 3. I have perused the impugned order and have also gone through the material available on the record.

3. In brief the facts of the case are that the respondent Smt. Shamima moved petition u/s 125 Cr.P.C. against the revisionist Sri Mohsin @ Masim Mahgir for award of maintenance for herself and for respondent no.3 Shahrukh with the averments inter-alia that marriage in between the revisionist and respondent no.2 was solemnized 5½ years back in accordance with Muslim rites. It is alleged that one son was born out of this wedlock. In the marriage good dowry was given beyond the status but soon after the marriage, the revisionist demanded Rs. 20,000/- as case and coloured Television and on non-fulfillment of his demand; she was removed from the house since three months back. She came to his parental home and thereafter she came at Mohalla Gularghatti, Tehsil & P.S. Ramnagar from where she filed petition u/s 125 Cr.P.C. in the Court of Judge Family Court, Nainital, which was dismissed in default in her absence. At present she is residing with her sister at Mohalla Bansforan, Kashipur. It is alleged that the revisionist did not pay any heed towards her, on account of which she is compelled to live in her various relations. It is alleged that the revisionist prepares utensils and plies Rickshaw and from all means he has monthly income of Rs. 11,000/- and he can easily pay maintenance to the tune of Rs. 7,000/- per month to the applicants. Refuting the averments made by the wife-respondent, the revisionist filed his objection. He admitted the marriage. It is submitted that the wife-respondent no.2 is residing separately without sufficient causes. He refuted the contentions made in regard to the demand of dowry. He submitted that he is poor person and plies Rickshaw. He is unable to pay maintenance. Both the parties led their evidence before the Trial Court. After hearing learned counsel for both the parties the learned trial court vide his impugned judgment and order dated 30.04.2008 allowed the petition u/s 125 Cr.P.C. filed by the wife-respondent no.2 and directed the

revisionist-husband to pay maintenance to the tune of Rs. 500/- per month to the wife-respondent no.2 and Rs. 300/- per month to the son-respondent no.3 from the date of filing the application by 7[th] of every month. Feeling aggrieved with the aforesaid judgment and order, the present revision has been preferred before this Court.

4.Learned counsel for the revisionist argued that the trial court has passed the order of maintenance in routine manner without assessing the evidence on the record, as the revisionist is poor person and he has no other source of income. Further the petitioner had left her matrimonial house without any genuine reason and the revisionist is ready to keep her alongwith the child with him. Lastly it is submitted that the amount of maintenance is excessive. But in the petition, the petitioner has categorically stated that soon after the marriage sum of Rs. 20,000/- as cash and coloured Television was demanded and on non-fulfillment of the demand she was beaten and was ousted from the house since 3 months back. On perusal of the order of the trial court it reveals that the court below has reached to the conclusion that after the petitioner was removed by the revisionist, she was compelled to live with her various relations. The trial court has held that the petitioner cannot refuse to live with her husband on account of his less income. In what circumstances, the petitioner is compelled to live separately the reason behind it that after the marriage the petitioner has to move astray in search of shelter and she is compelled to live with her various relationship. The revisionist did not, at all, care for her and his child. At present also she is residing with her sister at Mohalla Bansforan-Kashipur. The trial court also reached to the conclusion that it cannot be believed that due to less income of the husband, the wife is reluctant to live with her husband. Therefore, the petitioner has sufficient reasons to live separately from her husband. It reveals

that after the respondent nos. 2 & 3 were ousted, the revisionist did not pay any heed towards them. He neglected them to get rid of paying maintenance. The revisionist has the responsibility to maintain her wife and the children. The trial court has fully considered the petition as also the written objection of the revisionist while passing the order impugned. On one hand the petitioner in her cross-examination has stated that she has no means of livelihood, while on the other hand the revisionist does preparation of utensils and plies Tempo. The trial court has held that the revisionist has the means to make payment of maintenance to the wife and the son, as his income is proved to be Rs. 1,800/- per month by the certificate issued by the Tehsildar, Moradabad. Therefore, the trial Court has rightly directed the revisionist to pay maintenance as mentioned above. To this extent, I do not find any illegality, impropriety or incorrectness in the aforesaid judgment and order dated 30.04.2008 and to this extent the trial court has rightlypassed the order which does not warrant interference at this stage.

5. Lastly, learned counsel for the revisionist has argued that the trial court has directed to make payment of the maintenance from the date of application, which cannot said to be justified so far the income of the revisionist and his occupation is concerned. On due consideration, the order of the trial court is not justified to this extent. Consequently, the revisionist shall make payment of the amount of maintenance as warded by the trial court but not from the date of filing of the application, but from the date of passing the impugned order i.e. from 30.04.2008.

6. In view of the above facts and circumstances the revision is partly allowed. The revisionist is directed to pay maintenance to the tune of Rs. 500/- per month to the wife-respondent no.2 and Rs. 300/- per month to the son-respondent no.3 (in whole

Rs. 800/- per month) by 7[th] of every month from the date of passing the impugned order i.e. from 30.04.2008.

7. Interim order dated 23.05.2008 passed by this Court stands vacated.

NCM

(Dharam Veer, J.) 20.10.2008