Sabnam Parveen Alias Shabnam Parveen vs. State Of Jharkhand
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The petitioner, Sabnam Parveen, filed a criminal revision challenging a judgment dated May 28, 2019, by the Additional Family Court, Dhanbad. The lower court had rejected her petition under Section 127 Cr.P.C. seeking enhancement of maintenance from Rs. 4,000/- to Rs. 12,000/- per month. The petitioner argued that the lower court erred by not enhancing the maintenance despite a change in circumstances. She claimed the opposite party (O.P. No. 2), Md. Shamshad Ansari, is the Director of M/S Hindustan Enterprises, an E-Riksha showroom, and not merely an employee as he alleged. The petitioner also presented evidence of her own educational qualifications (MBA and LLB) and practice as an advocate. The opposite party contended that the impugned order was proper and that he had lost his job as an employee of Sultan Ansari, earning Rs. 7,000/- per month, and is 42% physically handicapped.
Held
The High Court held that the petitioner was able to show that the lower court committed an error by rejecting her claim for alteration of the enhanced maintenance amount. The Court found that the opposite party had suppressed several material facts from the learned Court below. The Court considered the educational qualifications of the petitioner (MBA, LLB) and her practice as an advocate, along with the spiraling inflation and cost of living, as factors warranting an enhancement. It also took into account the Supreme Court's pronouncements in cases like Reema Salkan v. Sumer Singh Salkan and Badshah v. Urmila Badshah Godse, emphasizing the need for purposive interpretation of Section 125 Cr.P.C. to achieve social justice and the importance of considering the financial capacity of the husband. The Court set aside the impugned order and directed the opposite party to pay Rs. 6,000/- per month to the petitioner from the date of filing the petition under Section 127 Cr.P.C., noting that the petition was filed within two years. The Court also directed the payment of arrears within four months and granted the petitioner liberty to institute a fresh case for enhancement if advised. The issue of whether the opposite party was practicing civil courts was not explicitly decided but was implicitly addressed by the Court's findings on his financial capacity and suppression of facts.
Key Issues
1. Whether the learned Court below committed an illegality by not altering and enhancing the maintenance amount from Rs. 4,000/- to Rs. 12,000/- per month due to a change in circumstances, as per Section 127 Cr.P.C.? Petitioner's arguments: The petitioner contended that the impugned order was illegal and unsustainable. She argued that the opposite party falsely deposed about his employment and that he is, in fact, the Director of M/S Hindustan Enterprises, dealing in E-Rikshaws, evident from a brochure (marked X/1). She also highlighted that the opposite party had previously filed a maintenance alteration case (Maintenance (Alt.) Cases No. 26 of 2017) which was dismissed. The petitioner asserted her own educational qualifications (MBA, LLB) and current practice as an advocate, suggesting a change in her circumstances and the opposite party's ability to pay. She relied on the principle that maintenance is dependent on factual situations and the court should consider the status and capacity of parties. Revenue/State's arguments: The State opposed the prayer, arguing that the impugned order was fit and proper and required no interference. They submitted that the initial maintenance order was passed in Maintenance Case No. 58 of 2015, and the petitioner filed the alteration petition under Section 127 Cr.P.C., and the lower court committed no illegality. The O.P. No. 2 adopted the State's submissions and further argued that the revision was devoid of merit. He claimed to be an employee earning Rs. 7,000/- per month, who lost his job and is 42% physically handicapped. He also pointed out that the petitioner is pursuing LL.M. and questioned whether she is practicing in civil courts.
Sections Cited
Section 127 Cr.P.C., Section 125 Cr.P.C.
AI-generated summary — verify with the full judgment below
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 774 of 2019
--------- Sabnam Parveen @ Shabnam Parveen ... Petitioner
-Versus-
The State of Jharkhand
Md. Shamshad Ansari
… Opposite Parties
--------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD
---------
For the Petitioner
: Mr. Lukesh Kumar, Advocate
For the State
: Mr. Abhay Kr. Tiwari, A.P.P.
For the O.P. No. 2
: Mr. Raj Nandan Chatterjee, Adv.
---------
Order No. 06/ Dated: 28.06.2023
This Criminal Revision has been filed on behalf of the petitioner by challenging the judgment dated 28.05.2019 passed in Maintenance (Alt.) Case No. 19 of 2017 passed by the Additional Principal Judge, Additional Family Court, Dhanbad , by which the petition filed under section 127 Cr.P.C. on behalf of the for enhancement of maintenance amount from Rs. 4,000/- to Rs.12,000/- per month has been rejected.
Heard learned counsel for the petitioner, learned A.P.P. and learned counsel for the O.P. No. 2 .
Learned counsel for the petitioner has submitted that impugned order passed by the learned Court below is illegal and not sustainable in eye of law. It is submitted that learned Court below has committed illegality by not altering and enhancing the account of Rs. 4,000/- to Rs. 12,000/- per month due to change in the circumstances of the case. It is submitted that the petitioner has falsely deposed before the learned Court below that he is the employee of D.W. 1 namely –Sultan Ansari and as a matter of fact, the petitioner is the Director of E-Riksha Showroom namely M/S Hindustan Enterprises which is evident from brochure marked as X/1 for the identification. It is further submitted that even the
-2 opposite party has filed the Maintenance (Alt.) Cases No. 26 of 2017 which was dismissed by the learned Court below. It is submitted that after passing of judgment in Original Maintenance Case No. 58 of 2015 on 01.08.2015 the opposite party got the case compromised and took the petitioner with him in his residence for a few days and thereafter on the basis of said compromise , the opposite party was acquitted in Dhanbad P.S. Case No. 528 of 2015 which is document marked for identification as X/4 and X/5 respectively . It is submitted that document marked for identification X/3 is agreement showing that the petitioner is giving the rent of Rs. 2,500/- and also paying other necessary expenses. During course of the argument learned counsel for the petitioner has submitted that the petitioner is a M.B.A Graduate and also completed LL.B Degree and presently he is doing practice in Civil Court Dhanbad. It is submitted that although in Alteration Case filed before the learned Courts below it has been stated that the petitioner is running his own business, however the learned Court below it has been disbelieved the case of the petitioner and has wrongly rejected the enhancement of maintenance amount from Rs. 4,000/- to Rs. 12,000/- per month and hence impugned judgment may be set-aside and this Criminal Revision Application may be allowed.
On the other hand, learned counsel for the State opposed the prayer of the learned counsel for the petitioner and submitted that impugned order passed by the learned Court is fit and proper and no interference is required . It is submitted that initially the order for payment of maintenance amount was passed in Maintenance Case No. 58 of 2015 on 01.08.2015 and the petitioner has filed the petition for alteration of maintenance case under section 127 Cr.P.C. and as such learned Court below has
-3 committed no illegality and hence this Criminal Revision may be dismissed.
Learned counsel for the O.P. No. 2, after adopting the submission of the learned A.P.P. has further submitted that this Criminal Revision is devoid of merit . It is submitted that the O.P. No. 2 is an employee of one Sultan Ansari and was earning Rs. 7,000/- per month by doing job in M/S Hindustan Enterprises, however after institution of the case the O.P. No. 2 has lost his job . It is submitted that the Exhibit A, Exhibit B and Exhibit C are the documents in the name of said Sultan Ansari of his firm M/S Hindustan Enterprises. It is further submitted that the O.P. No. 2 is 42% physically handicapped person. It is evident from document marked as Y/1 for identification. It is further submitted that the document Y/2 is an Appointment Letter of the O.P. No. 2 which shows that the salary of the O.P. No. 2 is Rs. 7,000/- per month and due to pendency of several cases, the O.P. No. 2 has lost his job. It is further submitted that the petitioner is presently pursuing LL.M., however the learned counsel for the O.P. No.2 has failed to give reply as to whether the O.P. No. 2 is practicing Civil Courts Dhanbad or not. It is submitted that as the maintenance order has alredy been passed in 01.08.2015 and as such filing of Alternation Case in the year 2017 is devoid of merit and such the learned Court below has committed no illegality by rejecting the Maintenance (Alt.) Cases No. 26 of 2017. It is further submitted that even the father of the O.P. No. 2 had disowned him from his house as well as his properties and issued the declaration to that effect. It is submitted that even the O.P. No. 2 has remained in the custody for around three (03) months due to the case instituted by the petitioner. It is submitted that the petitioner is doing part time job at Hindustan Enterprises as a salesman from 21.12.2016 for
-4 fixed period of one (01) year for a limitation of Rs. 7,000/- and hence this Criminal Revision may be dismissed.
Perused the records of this case and considered the submission made by both the sides.
It transpires from the record that marriage between the petitioner and the O.P. No. 2 was solemnized on 11.03.2013 under the Special Marriage Act and thereafter marriage between the petitioner and O.P. No. 2 was solemnized under the Muslim Rites and Custom on 04.06.2014. The O.P. No. 2 has claimed that he has given Talak to the petitioner, however no such specific date has been disclosed.
It has also transpires that earlier the petitioner has filed the maintenance case for grant of maintenance bearing M.P. Case No. 58 of 2015 under section 125 Cr.P.C. before the learned Principal Judge, Family Court, Dhanbad and which was allowed vide judgment dated 01.08.2015 by the learned Principal Judge, Family Court, Dhanbad by directing the O.P. No. 2 to pay Rs. 4,000/- per month to the petitioner as maintenance amount from date of filing of the application has allowed after contested.
It further transpires that after passing of the judgment dated 01.08.2015 in M.P. Case No. 58/2015, the O.P. No. 2 convinced the petitioner for compromise and thereafter they had filed a joint compromise petition in connection with Dhanbad P.S. Case No. 528/2015 on 08.09.2015 and compromise petition and permission petition were marked as Ext. X/4 and Ext. X/5 respectively .
At this stage , it is relevant to mention here that in the said joint compromise petition even the parents of the O.P. No. 2- Md. Shamshad Ansari and other family members Yunush Ansari, Khalid Khan, Anwar Ahmad Khan and Md. Azaz were also parties .
-5 11. It transpires that on the basis of said compromise the petitioner and four (04) other family members namely Yunush Ansari, Khalid Khan, Anwar Ahmad Khan and Md. Azaz were acquitted by the learned Court below.
It transpires that thereafter the petitioner was compelled to file the maintenance ( Alteration Case No.19/2017) under section 127 of the Cr.P.C. on 04.07.2017 by stating therein that the O.P. No. 2 has concealed his real income before the learned Court below and he is actually Owner –cum-Proprietor of the Hindustan Enterprises which deals in the Electronic Rickshaw and which is situated near City School By Pass Road Mandar Pala and he is earning approx. Rs. 15,000/- per month . She had also stated that apart from Rs. 4,000/- per month and she has no other source of Income to maintain herself and prices of the house hold articles are increase many times.
It transpires that the O.P. No. 2 had appeared and filed his the show cause on 12.06.2018 and has refuted the averments of the petitioner , He further submitted that he was taken in custody due to the case instituted by the petitioner . He further stated that he was doing part time job at Hindustan Enterprises as a Salesman from 21.12.2016 for the fixed period of one year and was earning Rs. 7,000/- per month which was extended for one year . It has been also stated that the petitioner is running a business and is earning Rs. 20,000/- per month .
It transpires that the petitioner has got examined two (02) witnesses in support of her case who are as follows:- (i) P.W. 1 is Sabnam Parveen i.e. petitioner herself and (ii) P.W. 2 Akhtar Alam is the Land Lord of petitioner .
-6
The petitioner has got marked the following document as the Exhibits, which are as follows :- (i) Exhibit-1is certified copy of documentary evidence viz certified copy of deposition of the O.P. No. 2 in Maintenance Case No. 26/2017, (ii) Exhibit -2 is certified copies of judgment passed in Maint. Case No. 26/2017 .
Apart from this, following documents are marked for identification which are as follows:- (i) Exhibit –X is Photograph of respondent, (ii) Exhibit X/1 is scan copy of prospect of Hindustan Enterprises, (iii) Exhibit –X/2 is CC of mini statement filed in Maint. Alt Case No. 26/2017, (iv) Exhibit X/3 is Agreement , (v) Exhibit X/4 is compromise petition in connection with Dhanbad P.S. Case No. 528 of 2015 , (vi) Exhibit X/5 is permission petition in connection with Dhanbad P.S. Case No. 528 of 2015, Although , the Court has marked the document Ext. X to Ext. X/5 respectively for identification but it ought not marked as Exhibits rather it ought to be marked as X, X/1, X/2,X/3, X/4 and X/5 for its identification .
On the other hand , the O.P. No. 2 has examined two (02) witnesses in support of his case which are as follows: (i) D.W. 1 Sultan Ansari is the employer of the respondent and (ii) D.W. 2 Shamshad Ansari is the O.P. No. 2 himself.
-7
The O.P. No. 2 has got marked the following documents marked which are as follows:- (i) Exhibit A is an estimate of service connection of J.S.E.B. Sultan Ansari (ii) Exhibit B is Commercial Tax Registration Certificate (iii) Exhibit C is Trade Certificate of Md. Sultan Anari
Apart from this, the O.P. No. 2 has got marked the following documents for identification as follows:- (i) Exhibit –X for identification is photocopy of GST Registration , (ii) Exhibit –Y for identification is photocopy of the Adhar Card and Pan Card , (iii) Exhibit –Y/1 for identification is the Original Handicapped Certificate of the O.P.No. 2 and (iv) Exhibit Y/2 for identification is Appointment Letter of the O.P. No. 2 .
It transpires that thereafter hearing both the sides, learned Court below has disbelieved the document marked as X/1 for identification .
It transpires that the learned Court below On the other hand it has considered the documents Y/1 for the identification which is the Handicapped Certificate of the O.P. No. 2 and has also considered marked the documents as marked as Exhibit A, Exhibit B and Exhibit C on behalf of the D.W. 1 Sultan Ansari and has rejected the claim of the enhancement .
This is the case of the O.P. No. 2 appears to have taken into confidence the petitioner on the one hand and has got the case compromised i.e. Dhanbad P.S. Case No. 528 of 2015 and got himself acquitted and other family members are also acquitted by
-8 filing joint compromise petition and permission letter marked as Exhibit X/4 and X/5 for identification and thereafter the O.P. No. 2 appeared to have ousted the petitioner again .
Although the petitioner has not shown challenging the acquittal of the O.P. No. 2 and his family members in connection with Dhanbad P.S. Case No. 528 of 2015 before any Court but document X and X/4 reveal that they had filed petition for compromise .
It appears from the document Y/2, which is appointment letter that same was issued on 05.01.2018 and the O.P. No. 2 has shown as Salesman part time i.e 5.01.2018 on consolidated amount of Rs. 7,000/- per month as salary , therefore on the date of filing of maintenance alteration case, the O.P. No. 2 was working in said Hindustan Enterprises .
It transpires from perusal of Exhibit A, Exhibit B and Exhibit C respectively that the same were issued on 3.11.2016 by the office of the Deputy Commissioner of the Commercial Tax , Nagariya Anchal Dhanbad and thus the said documents also reveals that the D.W. 1 is the new Proprietor of the said firm Hindustan Enterprises.
Even document- X marked for identification reveals that Sultan Ansari is the Proprietor since 01.07.2017 and date of issuance of Registration Certificate is described on 17.07.2017 and identity of D.W. 1 reveals that he belongs to the State of West Bengal .
Although the document Y/3 reveals that the O.P. No. 2 is physically handicapped of 42% in soldier but on absence of examination of the Doctor, the said Physically Handicapped Certificate cannot be relied upon.
It transpires from the evidence of P.W. 1 that she has fully supported her case that she is wife of the O.P. No. 2 and she has filed
-9 the case for enhancement from Rs. 4,000/- to 12,000/- per month as maintenance amount and it is difficult to her to live in Rs. 4,000/- only and she has claimed that her husband is living in house and studying LL.B .
It transpires that P.W. 2 is the father of the landlord of the petitioner and who has given the house on rent of Rs, 2,500/- per month .
From the evidence of D.W. 1 Md. Sultan Ansari, it appears that he claimed to an employer of the O.P. 2 and stated that he had issued the Appointment Letter in 2016 and paying Rs. 7,000/- per month but he had removed the O.P. No. 2 from the job in the year 2018 , however , he has not mentioned as to when he has removed the O.P. No. 2 from the job although he has issued Appointment Letter on 05.08.2018 itself . Even during cross-examination he has stated that he is the driver of the father of O.P. No. 2 and also admitted that he has not issued any letter for removing the O.P. No. 2 from the job. Although he had denied the suggestion in para 13 of the cross-examination that the O.P. No. 2 is the Director of the Hindustan Enterprises but he has admitted in para 31 of his cross examination that his shop Hindustan Enterprises is running in the house of one Yusuf Ansari who is father of the O.P. No. 2. 31. At this stage, from perusal of the document marked as X/1 , it transpires that O.P. No. 2 is shown as the Director of Hindustan Enterprises and which has been produced before the learned Court below and therefore it is the evident that the O.P. No. 2 had tried to conceal the real income before the learned Court below and the petitioner being lady could not collect the proper evidence or the required evidence but she has been able to show that the O.P. No. 2 has concealed the several facts before the learned Court below including the fact that he is working as the Director of said Hindustan
-10 Another reported in 2021 (2) SCC 324 at Para-77, 78, 79, 80, 112 and 113, which are as follows:- “Para-77:- The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
Para-78:- The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subpsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]
Para-79:- In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.
Para-80:- On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]
Para-112:- In Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51] , the Supreme Court was considering the interpretation of Section 125 CrPC. The Court held : (SCC p. 196, para 13)
-11 “13.3. … purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve “social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”
Para-113:- It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts, by directing that maintenance be awarded from the date on which the application was made before the court concerned. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.”
It has been held in the case of Sunita Kachwaha and 8 and 10 as follows:- “Para-7:- Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. Para-8:- The learned counsel for the respondent submitted that the appellant- wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely
-12 because the wife was earning something, it would not be a ground to reject her claim for maintenance. Para-10:-The impugned order of the High Court dated 26.06.2008 passed in Criminal Revision No. 2303/2007 is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3,000/- per month to the appellant-wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant-wife within the period of eight weeks.”
Therefore , it is evident that the petitioner has able to show that Court has committed error by rejecting the claim of the petitioner for alteration of enhanced maintenance amount and the O.P. No. 2 has suppressed several material facts from the learned Court below.
In view of the above the impugned order passed by the learned Court below is set-aside and O.P. No. 2 is directed to pay Rs. 6,000/- per month to the petitioner from the date of filing of the petition under section 127 Cr.P.C. as the petitioner has filed the said petition within two (02) years .
This Court is not enhancing the amount for more than Rs. 6,000/-, however the petitioner will be at liberty to institute a fresh case for enhancement of maintenance amount in accordance with law , if so advised.
The O.P. No. 2 is directed to pay of the Arrears within four (04) months from the date of passing of this Judgment.
Thus, this Criminal Revision No. 774 of 2019 is allowed and stands disposed of.
(Sanjay Prasad, J.)
Bibha/
Reproduced from the public record of the Jharkhand High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.