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IN THE COURT OF ADDL. SESSIONS JUDGE, F.T.C.,
NAGOAN :: (ASSAM)
Criminal Motion No. 79(N) /2013
Present:- Smti S.P.Khound (MA,LLB)
Addl. Sessions Judge, F.T.C.,
Nagaon (Assam)
Babul Ahmed.................Petitioner
-Vs1. Gule Rahana Begum.......Respondent
2. State of Assam
Advocate for the Petitioner
Advocate for the respondent
Advocate for the state
:
:
:
Abul Hassim
Mofisuddin
Mr. K. Choudhury, Addl. P.P.
Date of argument
Date of Judgment
:
:
03.06.14
25.07.14
JUDGMENT
1.
This revision petition is directed against the judgment and order
dated 8-7-13 passed by the learned JMFC in M.R. case No. 455/09, U/S
125 of the Code of Criminal Procedure (Cr.PC in short).
2.
The genesis of the case was that the MR Case No.455/09 was
initiated on the basis of the petition filed by the complainant Mustt. Gule
Rahana Begum figuring as opp.party in this case. The learned trial Court
directed the revisionist Babul Ahmed to pay Rs.1500/- per month as
maintenance to Gule Rahana and a sum of Rs.2000/- as maintenance to her
son Zulfiquar Ahmed till he attains his majority. Citing several infirmities
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in the judgment and order Babul Ahmed has prayed for revision of the
judgment and order impugned by him.
3.
Through her petition U/S 125 of the CrPC Gule Rahana contented
that she entered into marriage with Babul Ahmed on 25-12-1998, and
started her conjugal life in his house. They were blessed with a son
Zulfiquar Agmed. Gule Rahana has alleged that in the year 2004 Babul
Ahmed deserted her and her son and since then he has neglected to
maintain them. Babul Ahmed also remarried and this left the opp.party in
the dire straits.
4.
Through her petition Babul Ahmed filed written statement inter-alia
denying the allegation against him but at the same time he accepted his
marriage with the opp.party and birth of his son. On the contrary, he alleged
that he and Khairul Islam caught his wife red handed in a compromising
situation with Nurul Faruk. So he apprehended social stigma and
repercussions resulting from the Act. He has denied neglecting his wife and
his son and asserted that he has been maintaining them.
5.
In support of her stance Gule Rahana Begum adduced her evidence
as PW-1 and adduced the evidence of Mousema Begum as PW-2, whereas
Babul Ahmed adduced his evidence as DW-1 and the evidence of Siddque
Ali as DW-2.
6.
This case was decided in two counts :
(1) Whether Babul Ahmed having means neglected to maintain his
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lawfully married wife and legitimate son ?
(2) Whether Gule Rahana Begum and her son are entitled to
maintenance ?
Decision thereon and reasons for the decision.
8.
Gule Rahana's evidence reiterates her petition. She testified as PW-1
that her marriage was solemnized with Babul Ahmed on 25-12-11 and they
were blessed with a son Zulfiquar out of their wedlock. The marriage and
legitimacy of Zulfiquar is admitted by Babul but according to him Gule
Rahana Begum is now divorced and as a result she is not entitled to
maintenance. However the trial Court apptly held relying on the decision of
Hon'ble The Supreme Court in Shah bano Vs. Imran Khan reported in AIR
2010 SC 305 held while reiterating the settled position that “Even if a
Muslin woman has been divorced, she would be entitled to claim
maintenance from her husband under Section 125 of the Cr.P.C after the
expiry of period of iddat also, as long as she does not remarry.”
9.
Again DW-1 testified that Gule Rahana has an illicit relationship
with her brother-in-law Nur Md. and so he divorced her severing all ties
with her. He claimed that she is not entitled to maintenance because she
lead an adulterous life. In support of his evidence Sidduque Ali testified as
DW-3 that there was marital discord between both the parties because the
opp.party indulged in an illicit relationship with her brother-in-law. Now it
is to be found out whether the order of maintenance was appropriate
because according to section 125(4) CrPC.
No wife shall be entitled to receive an [allowance for the maintenance or
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the interim maintenance and expenses of proceeding, as the case may
be,] from her husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her husband, or if
they are living separately by mutual consent.
10.
The learned trial Court evaluated the evidence and laid stress that the
allegation of the 2nd party that she is leaving an adulterous life was not be
substantiated by any evidence. He did not lodge any FIR against the
paramour of the 2nd party with allegation of adultery. Thus his allegation of
adultery is bereft of evidence.
12.
A mere friendship with any man cannot tantamount to living in
adultery. The Hon'ble Supreme Court in a catena of decision has
elaborately spoken on adultery and explained that the ''expression 'living in
adultery' in the sense in which it is used in section 125 Cr.PC connotes a
wife living in perpetuity, or semi-perpetuity as a wife with a male, other
than her husband and having sexual relationship with him. But sporadic
instance of sexual relationship with a man other than her husband would
not fall within the ambit of the said expression.” Thereafter mere stray or
single lapse is not sufficient to constitute 'living in adultery' and the proof
of continuous course of adulterous conduct is necessary to forfeit the claim
of wife getting maintenance under the law. The Hon'ble Gauhati High
Court in Abdul Sattar Vs. State of Assam which is reported in 2008 (4)
GLT 838 has held that, ''The expression living in adultery conveys
present continuous tense. That is to say that a wife disentitles herself
from receiving maintenance from her husband only during the period
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when she lives in adultery. When she does not live in adultery or ceases
to live in adultery, even she had lived in adultery in the past, the
husband cannot refuse to maintain her on the ground that she had in
the past lived in adultery.” Situated thus. It can be said in the instant case
that even if the allegations of Babul Ahmed is to be believed, then also the
earlier conduct of Gule Rahana Begum disentitle her to the claim of
maintenance from Babul Ahmed now on.
13.
In fact the petitioner Babul has failed to prove any act of adultery as
reflected in the evidence of the independent witness being his neighbour.
DW-2 has categorically stated that the fight between the parties was with
regard to Gule Rahana Begum having illicit relation with her brother-inlaw, as told to him by the Babul Ahmed. He submits that he is not willing
to take back his wife home or pay for her maintenance because of her
adulterous nature. Although he claims to have never disagreed to pay for
his son's upkeep and was still willing to pay for his living and education.
Now, the very fact that Babul Ahmed has raised the allegations of adultery
against the Gule Rahana Begum makes it difficult for her to go back to the
environment of distrust and stigma. On the other hand, as discussed even if
it is to be believed that the allegations leveled against her is to be found
true, that does not in itself take away her right to claim maintenance. The
evidence of Babul Ahmed has not been able to substantiate the allegations
of adultery against her beyond any doubt. All of these must make it very
difficult for Gule Rahana Begum at the present stage to go back to her
husband’s home inspite of having a son and she cannot be said to be
willfully living away from her husband.
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14.
Thereby the learned trial Court has aptly held that Gule Rhana
Begum deserves maintenance. Babul Ahmed himself has agreed to
maintain his son. The decision of the learned trial Court that Babul Ahmed
having sufficient means has neglected to maintain his wife and his son.
Regarding the quantum of maintenance it is clear that the learned trial
Court has not imposed any huge amount upon the respondent. He is a
school teacher who incidentally draws around Rs.25.000/- (Rupees twenty
five thousand) per month as salary. He will be appointing his son and
maintain upto the time only he attain majority. We all know that as well as
a person attain majority job will not found into his lap. He will have to look
for employment or pursue further studies. I did not find any necessity to
interfere with the order of the learned trial Court.
15.
In view of my foregoing discussion appeal is hereby dismissed and
judgment and order of the learned trial Court is upheld.
Judgment is signed, sealed and delivered in the open Court on the
25th day of July, 2014.
Send a copy of this Judgment and order alongwith with the LCR.
Dictated & corrected by me:
Addl. Sessions Judge (F.T.C.)
Nagaon :Assam
Addl. Sessions Judge (FTC)
Nagaon : Assam.