NOOR MUHAMMED Vs. SULKIYA

JUDGEMENT

(1.) Revision is against the order in a proceeding under Section 125 of the Code of Criminal Procedure directing the revision petitioner/husband to pay a sum of Rs. 1,500/- as maintenance to the respondent/claimant in the proceeding. Feeling aggrieved, he has filed this revision.

(2.) The wife claimed maintenance at the rate of Rs. 4,000/- per month from the husband alleging neglect on his part to maintain her and also her lack of means, with a further allegation that he is a trader of foreign goods getting an income of Rs. 7,24,000/- per month. He was employed in a gulf country for several years and apart from having the vocation as a trader as aforesaid; he is doing real estate business was her further case, to sustain the claim made at the rate stated from him. Resisting the claim, the husband contended that the wife is employed as a tailor earning Rs. 3,000/- per month. She is living separately from him without justifiable cause and that too after an order of restitution of conjugal rights has been passed directing her to join him and fulfill the matrimonial obligations, was his further objection resisting the claim of the wife. The evidence in the case consisted of the testimony of the wife as PW 1 and that of the husband as RW 1, and that alone. On the materials so tendered, the evidence of the parties, one against the other, the Judge, Family Court, found the claim made by the wife just and reasonable and the objections put up by the husband unworthy of any merit. Even as a coolie he is capable of generating income of Rs. 250/- per day the learned Judge assessed his income potentiality and ordered him to pay maintenance of Rs. 1,500/- per month to the wife. Propriety, legality and correctness of that order is assailed by him in the revision.

(3.) The main thrust of challenge canvassed by the counsel for the husband is built upon the order of restitution of conjugal rights, which he has obtained exparte against the wife and its noncompliance by her, stressing upon that her living separately from. him after such an order has been passed by the Judge, Family Court (Civil Court) could be treated only as without justifiable cause. Admittedly, he has not taken any steps till date to execute the exparte order of restitution of conjugal rights to compel the wife to join him and fulfill her obligations as such. He did not offer to maintain her when a claim was made for maintenance against him. Even if an order of restitution of conjugal rights has been obtained by the husband, that alone would not be sufficient for him to resist the claim of maintenance by the wife, which is a statutory right enforcible where it is shown that there was neglect on his part to maintain her and also her inability due to lack of means for sustenance in life. The laudable objective behind S. 125 of the Code can never be lost sight of in appreciating the objections raised to resist the claim of the wife and children, as its very intend is to avoid vagrancy and to provide succor to destitutes. More over it has also to be taken note of what is contemplated under S. 125 of the Code for determination of the disputes canvassed in relation to a claim of maintenance is only by way of a sumrdary trial, leaving the parties to agitate complicated questions affecting their substantive rights in appropriate forum. When that be so, and also that the husband has not set forth any offer to maintain the wife when the claim for maintenance was made against him, resistance to such claim banking upon the exparte order of restitution of conjugal rights cannot be given unmerited consideration. The learned Judge, Family Court has accepted the version of the wife that she suffered matrimonial cruelty and harassment from the husband, to hold that she has justifiable reason to live separately from him. Within the narrow compus covered by the revisional jurisdiction, where under a finding on fact entered by the inferior court is not open to interference unless it is shown to be perverse or that it could not have been formed on the materials produced, in the given case where the materials consisted only of the testimony of the parties examined as PW 1 and RW 1, the conclusion formed by the learned Judge, Family Court, as above, who had the opportunity to watch the demeanour and deportment of the witnesses while recording their testimony, without anything shown in what way it suffered from infirmity, is not open for interference. I do not find any infirmity in the order of the court below holding that the wife is entitled to claim maintenance from the husband. So far as the quantum fixed also, it cannot be stated as unreasonable. No interference thereof is also called for.