Mrs Asma Khanum vs. Mr Mohammed Nawaz Shaik

This revision petition is filed modifying order of the Trial Court granting interim-maintenance of Rs.15,000/- to the wife and son considering the affidavit filed before the Trial Court.

The same is challenged before the First Appellate Court in Criminal Appeal No.1116/2025. The First Appellate HC-KAR NC: 2026:KHC:34678 Court having considered the grounds urged in the appeal, comes to the conclusion that appellant is working as daily wage Mechanic on part time basis and now, he is working as a driver and delivery boy and his income is less than that of respondent/wife, who had joined Radical Mines Technical Work and was working as Customer Care Executive from May, 2018 to 2022, thereafter, she joined Co-Gent E-Service Private Limited, where she worked from 2022 to October 2023. Thereafter, she has joined OLA ANI Technology, Bengaluru and worked there as Senior Customer Service Executive and then she has joined Auto Tech System Pvt. Ltd. and is drawing a monthly salary of Rs.50,500/- which is evident from the bank statement. Also they have furnished some online printouts that the petitioner is working. It is the contention of the respondent/wife that she is not working, but to pay the school fee of her minor son, she had borrowed money from other relatives which has been returned back which is evident from the bank statement.

In view of the contentions taken, the First Appellate Court comes to the conclusion in paragraph No.22 that HC-KAR NC: 2026:KHC:34678 respondent No.1 is well to do and she can maintain herself and her minor son. Hence, he is not ready to pay maintenance even to his minor son. In this regard, it is pertinent to note that it is the settled position of law that it is the duty of the father, who is abled body person who is working and in this case, he is capable of maintaining his two minor daughters and his second wife, but he is not ready to maintain his minor son in the first marriage. It is the duty of the father to maintain the minor son irrespective of the financial capacity of the wife till he attains majority. As such taking note that minor son is a school going child and will not just lead expenses to his day-to-day necessities but it is necessity to look after him when he is ill. But, in paragraph No.23, the First Appellate Court comes to the conclusion that petition was filed in the year 2017 and petitioner did not choose to press the application for maintenance till 2023 which clearly goes to show that she can maintain herself. It is only after the evidence the Court can come to the conclusion that respondent/wife is not capable of maintaining herself. Hence, the First Appellate Court comes to the conclusion that son is entitled for an amount of Rs.7,500/- per month till the disposal of the main petition, since he is aged HC-KAR NC: 2026:KHC:34678 about 13 years and also taken note of judgment of RAJANESH vs. NEHA and modified the judgment of the Trial Court reducing the interim-maintenance, but not awarded any maintenance in favour of the wife. The said order is challenged before this Court.

The main contention of learned counsel appearing for the petitioners before this Court is that objection statement filed before the Trial Court by the respondent herein is only to mislead the First Appellate Court and also the Trial Court and contented that he is an expert Car Mechanic by profession, who deals specifically in luxury German car repairs. It is submitted that the respondent runs/manages a Car Garage by name ‘German Car Experts’ with a slogan ‘The land of luxury car service’. It is submitted that GST Registration of the garage stands in the name of the respondent's second wife Ayesha. The registration in the name of the respondent's second wife was done in the year 2022 and the same is made only afterthought and he is having income. But, the First Appellate Court committed an error in making an observation in paragraph No.23 that she did not press the application from HC-KAR NC: 2026:KHC:34678 2017 to 2023 and the very approach of the First Appellate Court is erroneous and that too, interim-maintenance awarded for 2 persons is only is Rs.15,000/- per month and the same is just and reasonable and that is modified by reducing it to Rs.7,500/- per month by giving flimsy reasons by the First Appellate Court. Hence, the order requires to be set aside.

Per contra, learned counsel appearing for the respondent would vehemently contend that he is not having any such income as contented by learned counsel for the petitioners. The counsel also filed objections before this Court producing the documents and contend that he is getting only an amount of Rs.18,500/- per month. The counsel also contend that the First Appellate Court rightly comes to the conclusion that prosecution/wife did not press the application from 2017 to 2023 and also submits that the respondent is making payment of Rs.7,500/- per month to the son and made the payment of Rs.75,000/- till date.

Having heard learned counsel appearing for the petitioners and also learned counsel appearing for the respondent, the order of the Trial Court is very clear that the HC-KAR NC: 2026:KHC:34678 interim-maintenance is payable from the date of application at the rate of Rs.15,000/- per month to the wife and son. It is also observed by the First Appellate Court in the order that, now, the husband is married and having two children through second wife. Apart from that, counsel appearing for the petitioners also produced documents before this Court i.e., absolute sale deeds dated 22.09.2014, 22.09.2021 and 15.05.2017 and contend that while purchasing the property in the year 2021, the respondent purchased the property in the name of second wife and also produced the photographs with regard to the present house and his recent trip to Dubai and other documents. The counsel also produced documents regarding bank statement of respondent No.1 regarding loan taken from Autotech and also copy of bank statement of respondent No.1 showing payment of loan to Autotech.

Having heard learned counsel appearing for the petitioners and also learned counsel appearing for the respondent, in respect of these documents are concerned, learned counsel appearing for the respondent would submit that those properties came to the respondent No.1 through his HC-KAR NC: 2026:KHC:34678 father-in-law through the second wife. Hence, the question of paying the amount of Rs.15,000/- per month does not arise. Having heard learned counsel appearing for the petitioners and also counsel appearing for the respondent, it is not in dispute that the petitioner No.1 is a wife of the respondent and marriage has solemnized between both of them in 2011. Learned counsel appearing for respondent would submit that, now the first wife is divorced and he has married second wife and the fact that he has married and having two children through the second wife is also not in dispute. With regard to the documents which have been produced before the Court i.e., sale deeds of the year 2014, 2021, 2017 and other documents, learned counsel appearing for the petitioners would submit that all these documents are produced before the Trial court and case is set down for cross-examination of P.W.1 before the Trial Court and petition was filed in the year 2017. 9. Learned counsel appearing for the respondent also makes the submission that an amount of Rs.75,000/- is paid in total as maintenance and the Court has to take note of conduct of the respondent in making the payment of Rs.75,000/- when HC-KAR NC: 2026:KHC:34678 the order was passed by the Trial Court for maintenance to the wife and son to the tune of Rs.15,000/- per month and the respondent has not paid the same and also considering the revision petition, the Court has to take note of the conduct and the husband is not even paying the maintenance amount to the first wife and it is also not in dispute that son is aged about 13 years and the first wife and son have to maintain themsleves and the first wife has to provide education to her son, who is aged about 13 years.

When such being the case, the Trial Court has rightly granted an amount of Rs.15,000/- per month as maintenance and the First Appellate Court committed an error in reversing the said order, that too, giving flimsy reason in paragraph No.23 that she did not press the application from 2017 to 2023. Once the application is filed before the Court, it is the duty of the Court to consider the application and pass an order and though the order was passed in 2025 and that is the lapse on the part of the Trial Court in considering the said application and passing such an order. Hence, the wife cannot be targeted and the same was not taken note by the First HC-KAR NC: 2026:KHC:34678 Appellate Court and the First Appellate Court rejected the claim of maintenance of the wife only on the ground that the application was not pressed from 2017 to 2023 and the First Appellate Court has given flimsy reason and not applied its judicious mind while modifying the order of the Trial Court and failed to take note of the fact that Court has to take note of present cost of living and cost of education of a son, that too, when he got married second wife and having two children and he is able to maintain his second wife and two children, he did not even pay maintenance to his first wife and the amount what he has paid to the tune of Rs.75,000 as submitted by learned counsel for the petitioners is nothing but a peanut that too, for a period of almost 9 years and the First Appellate Court failed to take note of said fact into consideration. Even, though the First Appellate Court discussed in paragraph No.22 with regard to cost of living and also the educational expenses of the son, but giving a flimsy reason, reduced the same. Hence, the respondent-husband is directed to pay an amount of Rs.15,000/- per month as directed by the Trial Court and the order of the Appellate Court requires to be set aside. HC-KAR NC: 2026:KHC:34678

The matter is pending before the Trial Court from 2017 and that too, case is set down for cross-examination of P.W.1 even after lapse of 9 years. Hence, the very contention of learned counsel appearing for the respondent that he is getting only an amount of Rs.18,500/- per month and the wife is getting income has to be considered on merits after consideration of evidence of the wife as well as husband and the same has to be appreciated at the time of deciding the quantum of compensation to be payable by the husband to the wife and son and till the disposal of the petition, the respondent is directed to pay an amount of Rs.15,000/- per month to the petitioners as ordered by the Trial Court and also pay the entire arrears of maintenance at the rate of Rs.15,000/- per month within one month from today. If the respondent fails to pay the arrears of maintenance within one month, the petitioner is at liberty to enforce the order of the Trial Court. The Trial Court is directed to dispose of the petition within a time bound period of six months, since the petition is of the year 2017 and both the petitioner and the respondent and their respective counsels are directed to assist the Trial Court in disposal of the case within a time bound period of six months. HC-KAR NC: 2026:KHC:34678 Accordingly, the revision petition is disposed of. (H.P.SANDESH) JUDGE