Abdul Hak vs Smt. Najma Khatoon and Another

B.K. Rathi, J.—This is a revision u/s 397/401, Code of Criminal Procedure against the order dated 15.9.1997 passed by the Judge, Family Court, Azamgarh, in Criminal Case No. 185 of 1994 by which he awarded maintenance of Rs. 500 per month to opposite party No. 1 and Rs. 200 to opposite party No. 2 from 2.8.1994, i.e., from the date of application u/s 125, Code of Criminal Procedure.

I have heard Sri J.J. Munir, learned Counsel for the applicant, Sri J.P. Singh, learned Counsel for opposite parties and have perused the order.

The only contention raised before me in this revision is that the order of the learned Judge, Family Court, is against the law. It is contended that the applicant from the very initial stage offered to keep the opposite parties with him, but the opposite parties were not ready to live with the applicant. It is contended that they are not entitled for maintenance unless there is sufficient reason for separate residence, as has been provided by the proviso to Section 125, Code of Criminal Procedure It is contended that there is no finding recorded by the Judge, Family Court on the point of separate residence and maintenance. The learned Counsel for the revisionist has referred to the case of Abdul Ahad Vs. Smt. Nasreen Bano, . This is a Division Bench case of this Court. It was observed in this case that in case of refusal by the wife to live with her husband, who made offer to keep her, the Court has to satisfy about the refusal before passing the order of maintenance.

I have perused the order and found that the trial court has observed that the applicant has not paid any amount to the opposite parties, which shows that he is not ready to keep the opposite parties. In this case the applicant has offered to keep the opposite parties. The opposite parties, on the other hand, have claimed separate residence and maintenance. Therefore, it was for the opposite parties to prove that they are entitled to separate residence and maintenance. There is no such finding and therefore, the order of the Judge, Family Court is fit to be set aside.

The revision is accordingly allowed and the impugned order of the Judge, Family Court dated 15.9.1997 passed in Criminal Case No. 185 of 1994 is set aside and the matter is sent back to the trial court to re-decide the matter in the light of the observations made in the body of the judgment. However, the applicant shall pay Rs. 500 as interim maintenance to the opposite parties, to opposite party No. 1 from the date of order of the trial court, i.e., from 15.9.1997. The matter shall be disposed of by the Judge. Family Court expeditiously.