APSAR ALII KHAN Vs. SAIDA BEGUM

JUDGEMENT

(1.) The Petitioner has filed this application challenging the Judgment dated 19.7.2011 passed by the learned Judge, Family Court, Bhubaneswar in Criminal Proceeding No. 70 of 2011. Opposite party, filed an application under Section 125, Cr.P.C. against the present Petitioner with a prayer to direct him to pay monthly maintenance of Rs. 5,000, legal expenses of Rs. 500 and Rs. 1,00,000 towards medical expenses. Admittedly, both the Petitioner and the opposite party are husband and wife. They are Muslim. They married on 6.6.1996. One daughter and one son were born out of their wedlock. The Petitioner was working in the Indian Navy and retired, he was getting salary at the rate of Rs. 25,000 per month apart from other facilities as provided to a defence personnel. After retirement, the Petitioner is getting pension and other facilities, such as, family medical facilities, re-employment reservation, etc. He has also received retirement benefits, i.e., monthly pension, gratuity, provident fund and insurance, etc. The opposite party pleaded in her application that the Petitioner is an arrogant and proud natured person and he lost his control and balance of mind for small and petty matter. Therefore, she was being physically assaulted and subjected to cruelty. She had undergone major operation since 21st March, 2010 for which she was staying away from her husband. During the said period, the children were living with the Petitioner. Taking advantage of the said situation, the husband was not maintaining her and she was in a distress condition. Accordingly, she prayed for maintenance as per the above terms. She also stated in her application that she was entitled to Rs. 4,50,000 as her share from a fixed deposit which stood in the names of both husband and wife jointly. She further stated in the application that the husband has got a house at Barahala and has agricultural landed property. He is earning Rs. 36,000 from that source. The Petitioner after receiving notice in the said matter filed his show cause admitting the marriage and the fact that both the children are residing with him. However, he took a stand that the wife on her own volition left the matrimonial home and in spite of request she did not come. Therefore, finding no other way, he pronounced "Talaq" orally on 9.5.2010 in her presence and prepared 'Talaqnama' on 10.5.2010. The Petitioner being a divorced woman was not entitled to get any maintenance. He further stated in the show cause that he is getting Rs. 8,600 per month as pension. Both the children and his old father are depending on him. He alleged that the wife is an arrogant lady and keeps relationship with a person working in the State Bank of India at Vishakhapatnam for which he has filed Civil Suit No. 153 of 2010 for divorce before the learned Civil Judge (Junior Division), Bhubaneswar. He further alleged that she is working as a Teacher and sometimes also working in a Beauty Parlour. Since had sufficient means, she is not entitled to get any maintenance. He further stated that in order to take care of the children, he married for the second time on 10th July, 2010 and is living with the second wife.

(2.) On the above pleadings, the parties adduced oral evidence by examining themselves as P.W. 1 and O.P.W. 1. The wife filed documentary evidence which was marked as Exts. 1 to 30. The husband did not file any documentary evidence.

(3.) On the above pleadings and the evidence adduced by the parties, the Court below came to the finding that the wife is staying away from the husband. The husband is a retired Naval Officer and getting pension of Rs. 8,600 per month. He had also received pensionary benefits of Rs. 15,00,000 at the time of retirement. Both the children are residing with the husband, Considering the above and the fact that the wife had no income and keeping in view the cost of living and the medical treatment of the wife, the Court below directed the Petitioner to pay maintenance of Rs. 4,500 per month to the wife from the date of filing of the application i.e. 21.3.2011 and further directed that the arrear maintenance shall be paid within two months and the current maintenance by 10th of each succeeding month. The Court below further directed the Petitioner to pay Rs. 50,000 towards medical expenses.