Aziz Mohammad vs Mst. Islam Bi

I. Panda Ranga Rao, J.—This revision is preferred by the husband against the award of maintenance at Rs. 200/- per month to the non-applicant wife from the date of her application dated 29th February 1980.

Originally, the Trial Court has dismissed the application filed by the wife by order dated 29.2.1988. On revision, the learned Addl. Sessions Judge has set aside the decision of the trial Magistrate and awarded maintenance at Rs. 200/- per month.

The decision of the learned Revisional Court is challenged by the learned Counsel for the applicant firstly on the ground that the marriage between the non-applicant and her first husband having been admitted and in the absence of proof of divorce between her first husband and the non-applicant, the award of maintenance to the non-applicant is illegal. The learned Counsel for the non-applicant has relied upon the finding of the Learned Additional Sessions Judge that divorce by custom between the non-applicant and her former husband is proved. In support of that finding, the learned Counsel for the non-applicant referred to the evidence of the non-applieant in paragraph-10 of her deposition stating that customary divorce is prevalent in her community and that there was customary divorce between her and her former husband. She further deposed that after the customary divorce, she was married to the applicant under Muslim Rites & Customs. The learned Counsel for the non-applicant submitted that this evidence of the wife as P.W. 1 was not rebutted of the husband in his evidence. The learned Counsel for the applicant tried to argue that though P.W. 1 stated in her evidence that at the time of customary divorce, the parents of the husband and the parents of the wife should be present, she did not depose in her evidence that the parents of herself or her husband were present and. therefore, there is no valid customary divorce. But the cross-examination of the P.W. 1 does not reveal that it is elicited from P.W. 1 that her parents or her husband''s parents were not present at the time of the customary divorce. Therefore, in the absence of any rubutted evidence by the husband, the Learned Additional Sessions Judge did not commit any error in relying upon the evidence of P.W. 1 and The finding that the divorce between P.W. 1 and her husband by custom is proved.

The learned Counsel for the applicant submitted that the non-applicant was earning Rs. 500/- per month as spoken to by P.W. 2 and, therefore, the order awarding maintenance by the learned Additional Sessions Judge cannot be sustained. It is no doubt stated by P.W. 1 in her evidence that prior to her marriage with the applicant her family members were running a business, but there is no material to show that after her marriage with the applicant, the non-applicant still continued to carry on the business and that she is earning and amount. Even assuming that the non-applicant was engaged in rolling of bidis, for which there is no satisfactory proof, it cannot be said that she has sufficient means to maintain herself.

The evidence of non-applicant that she was married to the applicant under Muslim Law, is not challenged and it is stated that both of them resided together for 22-23 years after their marriage as husband and wife. Under these circumstances, the award of maintenance at Rs. 200/-per month is perfectly correct.

The learned Counsel for the applicant submitted that the award of maintenance from the date of application is not justified. But, the order-sheet of the revision shows that prior to the granting of stay by this Court on 26,11.1991, the applicant did not choose to make payment of the maintenance amount, In spite of the specific direction of the Court dated 24.7.1992 that the applicant should deposit the maintenance amount every month, it is submitted by the non-applicant''s Counsel that the said order has not been complied with. Having regard to the conduct of the applicant in not depositing the maintenance in spite of the order dated 24.7.1992. I hold that no indulgence can be shown to the applicant with regard to the award of maintenance from the date of application, which is the normal rule. There are no special reasons to deviate from that rule and direct payment of maintenance from the date of order.

The revision petition is accordingly dismissed.