Shah Shabbir Hussain v. State of U.P. and Another

Court No. - 86 Case :- APPLICATION U/S 482 No. - 29989 of 2023 Applicant :- Shah Shabbir Hussain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.

¶1Heard learned counsel for the applicant, learned AGA for the State and perused the record.

¶2By means of this application, the applicant has challenged the order dated

17.7.2023 passed by Principal Judge, Family Court, Jaunpur in Case No. 407 of 2021, CNR No. UPJP020007222021 (Anjum Bano Vs. Shabbir Hussain), P.S. Line Bazar, District-Jaunpur, by which application under Section 125 CrPC has been allowed and the applicant has been directed to pay a sum of Rs. 2000/- per month as interim maintenance to the opposite party no. 2.

¶3Learned counsel for the applicant has submitted that applicant is not the husband of opposite party No. 2.

¶4Learned counsel for the applicant has next submitted that applicant is working as a labourer, as such, he has limited means and is unable to provide interim maintenance fixed by the court to his wife, as such, impugned order passed by the court below is bad in the eyes of law being too excessive.

¶5From the perusal of the record, it is evident that the Opposite Party No.2 is the wife of the applicant, who is an able bodied person. An able-bodied person has to be presumed to be capable of earning sufficient money so as to be reasonably able to maintain his wife and he cannot be heard to say that he is not in a position to earn enough to be able to maintain her according to the family standard. No cogent grounds have been canvassed as to why such able bodied person is unable for reasons beyond his control, to earn enough to discharge his legal obligation to maintain his wife.

¶6Per contra, learned AGA has submitted that the factum raised by the counsel for the applicant that the applicant is not the husband of the opposite party No. 2, is a disputed question of fact which cannot be decided by this Court in exercise of power u/s 482 Cr.P.C. and shall be considered and decided by the court below while deciding the application u/s 125 Cr.P.C. and not at this interim stage, as such the impugned order passed by the court below is just, proper and legal and do not call for any interference at this stage.

¶7Hon'ble Apex Court in the case of Shamima Farooqui Vs. Shahid Khan, reported in (2015) 5 SCC 705 has observed as under:- It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home. The statute commands there has to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right.

¶8In view of settled legal position, enumerated above and the fact that disputed question of fact regarding the applicant not being the husband of opposite party No. 2 as claimed, shall be decided at the time of final disposal of the application u/s 125 Cr.P.C. on the basis of evidence adduced at not at this stage of grant of interim maintenance. As such the impugned order is just, proper and legal and does not suffer from any illegality, infirmity or jurisdictional error.

¶9The present Application u/s 482 Cr.P.C. being devoid of merit is accordingly dismissed. Order Date :- 16.11.2023 KU High Court of Judicature at Allahabad