1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL REVISION APPLICATION NO.47/2008 . Shri Mohammad Jamir Ali, Near Milagres Chappel, Mala Bhat, Vaddy Merces, Ilhas Goa. ….... Petitioner. Versus Smt. Ravin Khatun, r/o. Molok, Merces, Ilhas Goa. .….... Respondent. Ms. Asha Dessai, Advocate for the petitioner. Mr. Ryan Menezes, Advocate under Free Legal Aid for the respondent. CORAM :- U. D. SALVI, J. DATE : 24 th November, 2009 ORAL ORDER Heard. Perused application, annexures therewith and the record. 2. One Mohammad Zamir Ali, retired Havaldar from the defence services and husband of the respondent Mrs. Ravina 2 Khatun has moved this revision petition challenging the judgment and order dated 29.4.2008 passed by the learned District and Sessions Judge, North Goa, Panaji granting maintenance of Rs.1000/- to his wife. 3. Issue of maintenance arose as a result of other woman Zahira Begum joining the happy home of petitioner/respondent and according to the respondent building up illicit relations with her husband and consequent break down of matrimonial relations between the two. The respondent(wife) moved an maintenance application bearing no. 2/2003/A under section 125 of the Code of Criminal Procedure 1973 in the Court of Chief Judicial Magistrate, Panaji Goa, contending that she was driven out of the house by her husband and she had to eke out living by doing household work despite the fact that her husband had sufficient means to maintain her. Learned Chief Judicial Magistrate, Panaji Goa observed that there was no justification for the respondent/wife herein to live separately, and the petitioner/husband herein has to maintain himself and his son Mohammad Rafik within his pension of Rs.2500/- and income earned through selling of household articles 3 by moving on a bicycle. On the basis of this observation made from the evidence led before him the learned Chief Judicial Magistrate, Panaji Goa, rejected the maintenance application. 4. The respondent(wife) preferred Criminal Revision application in the Court of Sessions Judge North Goa Panaji, being Criminal Revision no. 70/2007 challenging the order of learned Chief Judicial Magistrate rejecting the maintenance to her. Record and proceedings of maintenance case no. 2/2003/A were called for and examined by the the learned Sessions Judge, North Goa Panaji. On going through the evidence led by the parties, learned Sessions Judge reached the conclusion that for the respondent/wife there exist circumstances for her to stay apart from her husband and these circumstances could be seen from the fact that the husband was living with Zahira Begum. Learned Sessions Judge after taking into consideration incomes and the liabilities of the parties, was of the view that the casual work of washing utensils in the hotels done by the respondent/wife to make her living is not a permanent service and the amount which she earns thereby cannot be said to be sufficient for maintaining herself. Based on this 4 premise learned Sessions Judge proceeded to grant maintenance of Rs.1000/- per month to the respondent. 5. Learned Advocate Ms. A. Dessai focused her submission on the vital ingredient of the section 125 of the Code which allows grant of maintenance to a married woman who is unable to maintain herself upon proof of either neglect or refusal to maintain such woman on the part of her husband having sufficient means. She pointed out from the judgment of the learned Chief Judicial Magistrate his legitimate concern about the financial means of the rival parties. Reading from the evidence of the petitioner/respondent in the maintenance application as well as respondent/applicant in the maintenance application that they earned about Rs.4000/- each every month and the petitioner husband has to bear responsibility of maintaining their son, she argued the facts weighed heavily in favour of the petitioner husband to say that the respondent/wife had ability to maintain herself and she deserved no maintenance. She further argued that the respondent/wife out of vindictiveness had put to misuse section 125 of the Code not as a preventive measure against vagrancy but 5 as a punitive weapon against her husband. She relied upon judgments reported in AIR 1975 Supreme Court 83, Bhagwan Dutt Vs. Smt. Kamla Devi and another, 2008 ALL MR (Cri) 860( S.C) Chaturbhuj Vs. Sita Bai, in order to emphasize her submission that there is an inseparable condition that the wife was unable to maintain herself which has also to be satisfied before granting any maintenance under section 125 of Code of Criminal Procedure. 6. Learned Advocate Mr. Ryan Menezes drawing strength from the judgment in Chaturbhuj Case ( Supra) argued that mere fact that the respondent was earning some income is not sufficient to rule out application under section 125 of Code of Criminal Procedure and it was necessary to establish further that with the amount she earned she was able to maintain her self. He further argued that though the respondent/wife while responding to cross examination had given the figure of her income then, yet the fact that she would continue to earn this income in future was no where reflected in her cross examination. It is in this context that the learned Session Judge while dealing with the issue of income 6 of respondent/wife had observed that the casual work of washing utensils in the hotels was not a permanent service and therefore grant of maintenance under the said provisions of law made to prevent vagrancy was justified. In support of his submission he placed reliance on the judgment of Hon'ble Madras High Court reported in 1998 Cri. L. J. 2689, R. Sivakumar Vs. Manimegalai. Learned Advocate Mr. R. Menezes further submitted that while exercising jurisdiction as the Court of revision under section 397, it is not expected of the Court to minutely examine the evidence and come to contrary findings. In his view, there was ample justification by the respondent/wife for refusal to live with her husband as her husband was living with another woman and this fact alone would entitle the respondent/wife to live separately and it amounts to neglect or refusal by her husband to maintain her. In support of this submission he relied on judgment reported in 1999 SC 2374 Rajathi Vs. C. Ganesa. 7. Learned Advocate Ms. A. Dessai for the petitioner made a statement across the Bar that the nature had removed the other force which apparently destroyed the matrimonial relations 7 between the parties with the death of Zahira Begum and the petitioner/husband is ready to resume co-habitation with the respondent wife and maintain her as before if she is willing to join him. This proposal put up to mend broken matrimonial ties was welcomed by the learned Advocate Mr. R. Menezes representing the respondent/wife as worth considering. However, he later on responded on instructions that the respondent/wife was no more interested in returning to the petitioner as she was deeply hurt by the past conduct of the petitioner. This Court was therefore left with no alternative but to decide the issue on the basis of the rival submissions. 8. One may not embark in depth survey of the evidence led by the parties but at the same time the law enjoins upon the Court to examine the record and the proceedings before the inferior Court for the purpose of satisfying itself as to correctness, legality or propriety of the findings or the order passed by the inferior Court. As regards the findings of the learned Sessions Judge, on the point of petitioner's neglect or refusal to maintain his wife it is worthwhile to examine the evidence led by the parties in 8 light of the judgment in Rajathi's case(Supra). While delivering the judgment in Rajathi's case the Hon'ble Apex Court voiced the difficulty of a woman to establish second marriage of her husband and held on the basis of a mere fact of her husband living with another woman as convincing justification for a wife to refuse to live with him. In the instant case, there is ample evidence of the fact besides admission of the petitioner that the petitioner was living with Zarina Begum and that matrimonial ties had turned sour as a result of Zahira Begum. Findings of the learned Sessions Judge in favour of respondent/wife on this aspect, therefore, cannot be considered as incorrect, illegal or improper. 9. In Bhagwan Datta case( Supra), the Hon'ble Apex Court while discussing parallel provisions under old Code i.e section 488 of the Code of Criminal Procedure, 1898 observed that the financial resources of the wife are also relevant consideration in determining the measure of maintenance due to the wife under the said provision. Discussion on the said provision also brought forth the dynamic nature of the said provision which allows it to provide answer to the question of maintenance to a wife in changing 9 circumstances. The Hon'ble Apex Court observed thus:- Para 21:- Keeping in view the object, scheme, setting and the language of these associate provisions in chapter XXXVI, it seems to us clear that in determining the amount of maintenance under section 488(1), the Magistrate is competent to take into consideration the separate income and means of the wife. Para 23:- Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the sections as a punitive weapon against their husbands. Even with the advent of legal thought with the passage of time, one finds that there has been little change in manner of applying the measures given under section 125 of Code of Criminal Procedure, 1973. In the matter of determination of the maintenance to destitute wife and children, the Hon'ble Apex Court in Chaturbhuj case while discussing the law on the subject made following observation:- “The object of the maintenance proceedings is 10 not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase “unable to maintain herself” in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow..... Para 7:- But there is an in separable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has to placed material to show that the respondent/wife was earning some income. That is not sufficient to rule out application under section 125 of Code of Criminal Procedure. It has to be established that with the amount she earned the respondent wife was able to maintain herself.” In the light of these observations of Hon'ble Apex Court, 11 it is necessary to evaluate worth of the evidence led by both the parties in the present proceedings. 10. Evidence of the petitioner/respondent in the trial Court reveals that he was getting pension of Rs.2500/- per month as ex- serviceman in addition to average earning of Rs.1500/- made from vending chocolates, biscuits etc, on the bicycle and had to maintain besides himself and his college going son. On the other hand there is evidence of respondent/wife( petitioner before trial Court) that during the period of absence of her husband she used to maintain herself and her son Mohamad Rafik by doing some work of washing utensils in many houses and from the time she left the matrimonial home she has been working at two hotels at Merces as well as in some households and earning Rs.3000/- to 4000/- per month by washing utensils and she gets lunch in one of those hotels named Lucky hotel. She further revealed that she spends Rs.900/- on rent and Rs.200/ on water and electricity charges. Nowhere in her evidence the fact that her work was of temporary nature figures. Certainly these facts do not show vagrancy or in ability to support herself. Her evidence also shows that the work 12 of washing utensils is not new to her. Her evidence also fails to show that she is managing to survive herself somehow. On the contrary, it is seen that the respondent is in position to pay rent of Rs.900/- and electricity and water charges to Rs.200/- every month. What remains in hand thereafter is comparatively substantial sum which is available to her for maintaining herself. In the light of such evidence it was not open for the learned Sessions Judge to hold that the respondent/wife was engaged in causal work and had no sufficient means to maintain herself. He could have possibly done so if the evidence before him permitted him to draw such conclusion. In absence of any clear evidence in that regard, his conclusions are incorrect. There is also no discussion in the impugned judgment as to how the income earned by the respondent/wife is not sufficient for maintaining herself. 11. The Hon'ble Madras High Court in R. Sivakumar case was prompted to grant maintenance to the respondent/wife in the said case, despite the fact that she was earning some income from her work in a Noon Meal Centre, for the reason of the evidence of the fact that the work she was doing was not a permanent one and 13 her job could be terminated from the said Noon Meal Centre at any time. Such is not a case in the present proceedings. 12. In the result, the finding of the learned Sessions Judge justifying the grant of maintenance of Rs.1000/- per month is erroneous. Order granting maintenance dated 29.4.2008 passed by learned Sessions Judge, North Goa, Panaji is, therefore, set aside. However, it is observed that it shall be open for the respondent/wife to move a separate application under section 125 of the Code of Criminal Procedure 1973 for maintenance, if she is unable to maintain herself in view of the changed circumstances and the Court dealing with such an application shall not be influenced by any of the factual observations made herein. No order as to costs. U. D. SALVI, J. vn*