MOHD SHAMIM Vs. NASEEM JAHAN BEGUM

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure, 1973. It arises from a proceeding by the opposite party wife under Section 125 of the Code. The learned Magistrate directed the applicant-husband to pay Rs. 60/- per month by way of mainten ance to his wife the opposite party. On revision, the learned Sessions Judge has confirmed that order. Mr. H. S. Joshi, learned counsel for the husband who is the applicant in this court, urged that both the courts below had failed to take into account the unrebutted evidence that the wife was an expert in 'bin9 making and was earning money sufficient to maintain not only herself but her mother too. Now, under Section 125 of the Code, a wife who applies for maintenance must be one "unable to maintain herself". In view of the husband's allegations that the wife was an expert in making 'biris' and that was the reason why her mother did not allow her to come back to him. It was incumbent on the wife to have rebutted that allegation and to have proved that she was unable to maintain herself; and learned Magistrate could not have ordered the husband to pay maintenance to her unless he found it as a fact that the wife was unable to main tain herself. The learned Magistrate considered only the income of the husband and the question whether he had divorced her as alleged by her although in the course of the considera tion of the evidence, he did remark that the evidence of the witnesses on the question whether the wife was earning money by making biris was not believable because in the cross- examina tion the wintnesses expressed ignorance of the Biri factory where she worked and stated that she had heard that she made biris. The reason given by the learned Magistrate for disbelieving the witnesses is that it was not possible to believe that a wife may allege that she had been divorced, without having been divorced by the husband and then leave the husband's place for ever, and although she is young she may not marry again. The reason given is wholly conjectural. A wife who has been divorced by her husband is bound to live away from him and if her only relative happens to be her mother then it is natural that she should go and live with the mother and if the mother does not have sufficient means to maintain them both% there is nothing unusual in the wife making a living by doing some work which she knows. The husband stated on oath that the wife makes biris9. The wife did not deny on oath that she knew biri 'making. The learned Sessions Judge has also not recorded any finding on the question whether the wife was unable to maintain herself. He only observed that the husband claimed that his wife was an expert in preparing Biris and that was the reason why her mother kept her at her house but that did not fit in with the circumstances of the case specially in view of the fact that nothing has been alleged against the wife's conduct and the husband was claiming that the wife was faithful. I am unable to see how the husband's claim that the wife was faithful or his allegation that he had not divorced her is inconsistent with the allegation that the wife was an expert in preparing 'biri and that her mother did not allow her to return to the husband for that reason. Nor is the fact that the husband had divorced the wife as found by the two courts below incon sistent with her making a living out of making 'biris' Direct evidence of witnesses should not be brushed aside in the light of any circumstances unless the existence of the fact in issue is inconsistent with or rendered improbable on proof of the existence of that circumstances. Further, in assessing the husband's income, the learned Sessions Judge found that his income, as a teacher in a school run by a mosque, was Rs. 50/- or ks. 60/- per month; that he did not inherit along with his brother some 25 to 30 bighas of land ; and that the peti tioner's income there from must be more than Rs. 100/ -. Even if that was so, the total income of the husband as found by the learned Sessions Judge would come to Rs. 150/- or Rs. 160/- per month. The husband has been ordered to pay Rs, 60/- per month as main tenance to the wife. I do not think that a husband must starve himself in order to maintain his wife; and to me the order directing the husband to pay Rs. 60/- per month as maintenance to the wife seems to be wholly unjustified. More particularly in view of the fact that it was the wife's own case that she had been divorced by the husband. The proper course for the wife in such a situation was to have taken steps for recovery of her dower debt if any, in a civil court of competent jurisdiction and if she came to the criminal courts, the first two things which she ought to have proved were that she was unable to maintain herself while her husband had sufficient, means and yet neglected or refused to maintain her. From the finding of the two courts below, it does not appear either that the husband had sufficient means to maintain the wife while she was living separately from him and yet neglected to do so and that she was unable to maintain herself. It, therefore, appears to me that the proceedings under Section 125 of the Code that were initiated by the wife amounted to an abuse of the process of the criminal court, and the ends of justice require that they must be quashed. However, leaving it open to the parties to settle their matrimonial dispute in a civil court of competent jurisdiction. In the result, the application succeeds and is allowed. The proceedings initiated by the opposite party under Section 125 of the Code of Criminal Procedure, 1973 and the orders passed therein including the order dated 26th November, 1977, of the court of Sri Jamil Raza Khan, special judicial Magistrate 1st class, Rampur in Misc-case no. 7 of 1977 Nasim Jahan Begum v. Mohd. Shamim, and the order dated 13th November, 1978 of the court of the Sessions Judge, Rampur in criminal revision no. 92 of 1977; Mohd. Shamim v. Nasim Jahan Begum are all quashed. .