Challenging and impugning the order dated 27.6.2006, passed by the Family Court(First Additional District Judge), Salem, in M.C.No.42 of 2005, this criminal revision case is focussed.
2. Compendiously and concisely the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:
(a) The revision petitioner herein filed the M.C.No.42 of 2005 before the Family Court, Salem, seeking maintenance as against her husband-the respondent herein, claiming Rs.5000/- per month as maintenance as per
Section 125 of Cr.P.C., on the ground that the husband neglected to maintain her and also failed to provide maintenance to her, even though she was not at fault and she was having no source of income to maintain herself.
(b) The respondent resisted the claim that he pronounced 'taluq' and as such, as per the Muslim Law, he divorced his wife and she was not entitled to any maintenance. Admittedly, the Family Court dismissed the petition. Being aggrieved by and dis-satisifed with the said order, this revision has been focussed on various grounds, the gist and kernal of them would run thus:-
The Family Court even though gave a finding to the effect that there was no proper pronouncement of 'taluq' and consequently there was no divorce between the husband and wife, it fell into error in simply rejecting the claim of the petitioner/wife on the ground that it was she who refused to resume cohabitation with the husband. Accordingly, the petitioner prays for setting aside the order of the lower Court and for awarding maintenance.
3. Heard both sides.
4. The point for consideration is as to whether the lower Court was perverse in dismissing the claim of the petitioner for maintenance on the ground that it was she who declined to resume cohabitation with the husband, even though the husband was allegedly ready and willing to resume cohabitation with her.
5. The learned counsel for the revision petitioner, by inviting the attention of this Court to the various documents as well as the judgement of the lower Court would develop his argument to the effect that the lower Court misunderstood the purport of the correspondence and held as though the husband was willing to resume cohabitation with the wife and that the wife was not willing to rejoin the husband.
6. The learned counsel for the respondent would submit that the order of the lower Court was correct and no interference with the said order is required; after taking into account the pros and consequence of the matter, the lower Court adjudged the petition filed under
Section 125 of Cr.P.C.and ultimately dismissed it correctly.
7. A bare poring over and perusal of the judgement of the lower Court would reveal and exemplify that the Family Court misunderstood the purport of the correspondences filed on the side of the petitioner. In fact, Ex.P2-notice itself would speak volumes that even before the issuance of advocate notice by the respondent, he made himself clear before the Islam Panchayadars that he was intending to marry one other girl and for that he sought permission. Ex.P2 is the communication dated 19.4.2004 sent by Salem Mettu Street Masjid Trust Board to the revision petitioner's father Janab Jailabhudheen Sahib to the effect that the respondent already sought permission from the said Masjit Trust Board to marry one other girl.
8. This is a crucial fact, which the lower Court failed to take into account. It is not as though the respondent sincerely and fervently longed for reunion with his wife. In fact, he planned to marry one other girl. In such a case, the lower Court was wrong in understanding as though the husband was having an open heart for resumption of cohabitation and that the revision petitioner only snapped her relationship with her husband and refused to cohabit with him.
9. The way in which the respondent approached the panchatdars are for the purpose of some how or other getting his relationship with the petitioner snapped by projecting as though he was on the right side and the wife already decided to desert him even though he had the desire for reunion. In such a case, the Family Court, while disbelieving the pronouncement of 'Taluq' by the husband should have driven the parties to settle their dispute in the matrimonial proceedings and in the meanwhile he should have awarded maintenance under
Section 125 of Cr.P.C.
10. It is a trite proposition of law that proceedings under Section 125 C.P.C. are summary in nature, where complicated matrimonial questions cannot be looked into.
11. Here it is very clear that the revision petitioner continues to be the wife of the respondent and in such a case, the husband is bound to maintain her and that too, in view of the fact that she is not having any source of income to maintain herself, so to keep the wolf from the door, to keep the pot boiling and to make both the ends meet. In order to constitute desertion there must be 'animus deserendi' on the part of the wife. Here it is in evidence that as suggested by the Muslim Trust, the father of the revision petitioner made arrangements for setting up a nucleus family and in fact, the revision petitioner and the respondent were living in the rented premises for some time and thereafter once again rift crept in their relationship. According to the respondent, in fact, it was the husband who is responsible for such rift.
12. To the risk of repetition, without being tautologies, I would like to point out that in a proceeding under
Section 125 Cr.P.C., the Family Court was not expected to delve deep into the evidence relating to 'animus deserendi' and the lower Court ought to have driven the parties to initiate matrimonial proceedings in appropriate forum and get it adjudged; till then, the Family Court should have awarded maintenance in favour of the wife, as per
Section 125 of Cr.P.C. Hence, I am of the considered opinion that the revision petitioner is entitled to maintenance from the husband. One cannot expect the wife to run from pillar to post to gather evidence and precisely adduce evidence before the Court about the financial wherewithal of the husband. In this case, the counter filed by the husband would display and demonstrate that he is a coolie, earning a sum of Rs.2,500/- per month.
13. Be that as it may. It is a settled proposition of law that a hale and healthy male is expected to maintain his wife by straining his every nerve to see that he is earning and providing maintenance to his wife, who is unable to maintain herself. In this case, there is no shard or shred, iota or miniscule, molecular or scintilla extent of evidence to show that the wife is having such means to maintain herself. Hence, in such a case, the husband should pay maintenance to her.
14. In the present day cost of living, a lady cannot live without having at least a sum of Rs.30/- per day. Accordingly if worked out, per month it comes to Rs.900/- p.m. For her medical expenses, traveling expenses and other unforeseen expenses, additionally she would require at least a sum of Rs.100/-. As such, the maintenance comes to Rs.1000/- per month, which the husband the respondent herein is directed to pay to the wife-the petitioner herein from the date of filing of the maintenance petition.
15. Accordingly, the revision is allowed, setting aside the order of the lower Court.
Msk To
1. The Family Court( First Additional District Judge), Salem