Dear Experts / Learned Counsels,
Please see the judgement. (Copy of SC judgement "Shamima Farooqi vs Shahid Khan" downloaded from Supreme Court Website)
Query
What does the SC ruling elaborates on CrPc 125 ? Is it Only for No Delay in deciding Maintenance "time frame".
How is it different from the previous ruling ?
Is the recent ruling says NO MATTER whatever the Wife does wrong she is ENTITLED for Maintenance?
What does " UNLESS DISQUALIFIED" mean?
In the Case Respodent has failed to prove her means to sustain herself…What had he proved her sustainibility lead to DENIAL of maintenance?
Previous Judgements by SC " Wife NOT entitled for Maintenance if She Deserts husband" & "maintenance for 1 year only" is it superseded by this ruling..
"her means to sustain herself" … What does CrPC 125 says for Means to sustain? (For highly qualified women Intentionally not working?)
JUDGEMNT:
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 1/13
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.564‐565 OF 2015
[Arising out of SLP (Crl.) Nos. 6380‐6381 of 2014]
SHAMIMA FAROOQUI ... Appellant
Versus
SHAHID KHAN ... Respondent
JUDGMENT
Dipak Misra, J.
Leave granted.
2. When centuries old obstructions are removed, age old shackles
are either burnt or lost their force, the chains get rusted, and the
human endowments and virtues are not indifferently treated and
emphasis is laid on "free identity" and not on "annexed identity", and
the women of today can gracefully and boldly assert their legal rights
Signature Not Verified
Digitally signed by
and refuse to be tied down to the obscurant conservatism, and
Chetan Kumar
Date: 2015.04.06
17:15:02 IST
Reason:
further determined to ostracize the "principle of commodity", and the
2
"barter system" to devoutly engage themselves in learning, criticizing
and professing certain principles with committed sensibility and
participating in all pertinent and concerned issues, there is no
warrant or justification or need to pave the innovative multi‐avenues
which the law does not countenance or give its stamp of approval.
Chivalry, a perverse sense of human egotism, and clutching of feudal
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 2/13
megalomaniac ideas or for that matter, any kind of condescending
attitude have no room. They are bound to be sent to the ancient
woods, and in the new horizon people should proclaim their own
ideas and authority. They should be able to say that they are the
persons of modern age and they have the ideas of today's "Bharat".
Any other idea floated or any song sung in the invocation of male
chauvinism is the proposition of an alien, a total stranger ‐ an
outsider. That is the truth in essentiality.
3. The facts which are requisite to be stated for adjudication of
these appeals are that the appellant filed an application under
Section 125 of the Code of Criminal Procedure (CrPC) contending,
inter alia, that she married Shahid Khan, the respondent herein, on
26.4.1992 and during her stay at the matrimonial home she was
prohibited from talking to others, and the husband not only
demanded a car from the family but also started harassing her. A
3
time came when he sent her to the parental home where she was
compelled to stay for almost three months. The indifferent husband
did not come to take her back to the matrimonial home, but she
returned with the fond and firm hope that the bond of wedlock would
be sustained and cemented with love and peace but as the misfortune
would have it, the demand for the vehicle continued and the
harassment was used as a weapon for fulfilment of the demand. In
due course she came to learn that the husband had illicit relationship
with another woman and he wanted to marry her. Usual to sense of
human curiosity and wife's right when she asked him she was
assaulted. The situation gradually worsened and it became
unbearable for her to stay at the matrimonial home. At that juncture,
she sought help of her parents who came and took her to the parental
home at Lucknow where she availed treatment. Being deserted and
ill‐treated and, in a way, suffering from fear psychosis she took
shelter in the house of her parents and when all her hopes got
shattered for reunion, she filed an application for grant of
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 3/13
maintenance at the rate of Rs.4000/‐ per month on the foundation
that husband was working on the post of Nayak in the Army and
getting a salary of Rs.10,000/‐ approximately apart from other perks.
4. The application for grant of maintenance was resisted with
4
immense vigour by the husband disputing all the averments
pertaining to demand of dowry and harassment and further alleging
that he had already given divorce to her on 18.6.1997 and has also
paid the Mehar to her.
5. A reply was filed to the same by wife asserting that she had
neither the knowledge of divorce nor had she received an amount of
Mehar.
6. During the proceeding before the learned Family Judge the
wife‐appellant examined herself and another, and the
respondent‐husband examined four witnesses, including himself.
The learned Family Judge, Family Court, Lucknow while dealing with
the application forming the subject matter Criminal Case No. 1120 of
1998 did not accept the primary objection as regards the
maintainability under Section 125 CrPC as the applicant was a
Muslim woman and came to hold even after the divorce the
application of the wife under Section 125 CrPC was maintainable in
the family court. Thereafter, the learned Family Judge appreciating
the evidence brought on record came to opine that the marriage
between the parties had taken place on 26.4.1992; that the husband
had given divorce on 18.6.1997; that she was ill treated at her
matrimonial home; and that she had come back to her parental house
5
and staying there; that the husband had not made any provision for
grant of maintenance; that the wife did not have any source of
income to support her, and the plea advanced by the husband that
she had means to sustain her had not been proved; that as the
husband was getting at the time of disposal of the application as per
the salary certificate Rs.17654/‐ and accordingly directed that a sum
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 4/13
of Rs.2500/‐ should be paid as monthly maintenance allowance from
the date of submission of application till the date of judgment and
thereafter Rs.4000/‐ per month from the date of judgment till the
date of remarriage.
7. The aforesaid order passed by the learned Family Judge came to
be assailed before the High Court in Criminal Revision wherein, the
High Court after adumbrating the facts referred to the decisions in
Anita Rani v. Rakeshpal Singh1, Dharmendra Kumar Gupta v.
Chander Prabha Devi2, Rakesh Kumar Diksh*t v. Jayanti Devi3,
Ashutosh Tripathi v. State of U.P. 4, Paras Nath Kurmi v. The
Session Judge5 and Sartaj v. State of U.P. and others 6 and came
to hold that though the learned principal Judge, Family Court had
not ascribed any reason for grant of maintenance from the date of
1 1991 (2) Crimes 725 (All)
2 1990 Cr.L.J. 1884
3 1999 (2) JIC, 323 (ACC)
4 1999 (2) 763, Allahabad J.I.C
5 1999 (2) JIC 522 All
6 2000 (2) JIC 967 All
6
application, yet when the case for maintenance was filed in the year
1998 decided on 17.2.2012 and there was no order for interim
maintenance, the grant of Rs.2500/‐ as monthly maintenance from
the date of application was neither illegal nor excessive. The High
Court took note of the fact that the husband had retired on 1.4.2012
and consequently reduced the maintenance allowance to
Rs.2000/‐from 1.4.2012 till remarriage of the appellant herein. Being
of this view the learned Single Judge modified the order passed by the
Family Court. Hence, the present appeal by special leave, at the
instance of the wife.
8. We have heard Dr. J.N. Dubey, learned senior counsel for the
appellant. Despite service of notice, none has appeared for the
respondent.
9. It is submitted by Dr. Dubey, learned senior counsel that
Section 125 CrPC is applicable to the Muslim women and the Family
Court has jurisdiction to decide the issue. It is urged by him that the
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 5/13
High Court has fallen into error by opining that the grant of
maintenance at the rate of Rs.4,000/‐ per month is excessive and
hence, it should be reduced to Rs.2000/‐ per month from the date of
retirement of the husband i.e. 1.4.2012 till her re‐marriage. It is also
contended that the High Court failed to appreciate the plight of the
7
appellant and reduced the amount and hence, the impugned order is
not supportable in law.
10. First of all, we intend to deal with the applicability of Section 125
CrPC to a Muslim woman who has been divorced. In Shamim Bano
v. Asraf Khan7, this Court after referring to the Constitution Bench
decisions in Danial Latifi v. Union of India8 and Khatoon Nisa v.
State of U.P.9 had opined as follows:‐
"13. The aforesaid principle clearly lays down that even
after an application has been filed under the provisions of
the Act, the Magistrate under the Act has the power to
grant maintenance in favour of a divorced Muslim woman
and the parameters and the considerations are the same as
stipulated in Section 125 of the Code. We may note that
while taking note of the factual score to the effect that the
plea of divorce was not accepted by the Magistrate which
was upheld by the High Court, the Constitution Bench
opined that as the Magistrate could exercise power under
Section 125 of the Code for grant of maintenance in favour
of a divorced Muslim woman under the Act, the order did
not warrant any interference. Thus, the emphasis was laid
on the retention of the power by the Magistrate under
Section 125 of the Code and the effect of ultimate
consequence.
14. Slightly recently, in Shabana Bano v. Imran Khan10, a
two‐Judge Bench, placing reliance on Danial Latifi (supra),
has ruled that:‐
"21. The appellant's petition under Section 125
CrPC would be maintainable before the Family
Court as long as the appellant does not remarry.
The amount of maintenance to be awarded under
7 (2014) 12 SCC 636
8 (2001) 7 SCC 740
9 (2014) 12 SCC 646
10 (2010) 1 SCC 666
8
Section 125 CrPC cannot be restricted for the
iddat period only."
Though the aforesaid decision was rendered interpreting
Section 7 of the Family Courts Act, 1984, yet the principle
stated therein would be applicable, for the same is in
consonance with the principle stated by the Constitution
Bench in Khatoon Nisa (supra)."
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 6/13
In view of the aforesaid dictum, there can be no shadow of doubt
that Section 125 CrPC has been rightly held to be applicable by the
learned Family Judge.
11. On a perusal of the order passed by the Family Court, it is
manifest that it has taken note of the fact that the salary of the
husband was Rs.17,654/‐ in May, 2009. It had fixed Rs.2,500/‐ as
monthly maintenance from the date of submission of application till
the date of order i.e. 17.2.2012 and from the date of order, at the rate
of Rs.4,000/‐ per month till the date of remarriage. The High Court
has opined that while granting maintenance from the date of
application, judicial discretion has to be appropriately exercised, for
the High Court has noted that the grant of maintenance at the rate of
Rs.2,500/‐ per month from the date of application till date of order,
did not call for modification.
12. The aforesaid finding of the High Court, affirming the view of the
learned Family Judge is absolutely correct. But what is disturbing is
9
that though the application for grant of maintenance was filed in the
year 1998, it was not decided till 17.2.2012. It is also shocking to
note that there was no order for grant of interim maintenance. It
needs no special emphasis to state that when an application for grant
of maintenance is filed by the wife the delay in disposal of the
application, to say the least, is an unacceptable situation. It is, in
fact, a distressing phenomenon. An application for grant of
maintenance has to be disposed of at the earliest. The family courts,
which have been established to deal with the matrimonial disputes,
which include application under Section 125 CrPC, have become
absolutely apathetic to the same. The concern and anguish that was
expressed by this Court in Bhuwan Mohan Singh v. Meena and
Ors.11, is to the following effect:‐
"13. The Family Courts have been established for adopting
and facilitating the conciliation procedure and to deal with
family disputes in a speedy and expeditious manner. A
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 7/13
three‐Judge Bench in K.A. Abdul Jaleel v. T.A.
Shahida , while highlighting on the purpose of bringing in
12
the Family Courts Act by the legislature, opined thus:‐
"The Family Courts Act was enacted to provide for
the establishment of Family Courts with a view to
promote conciliation in, and secure speedy
settlement of, disputes relating to marriage and
family affairs and for matters connected
therewith."
11 AIR 2014 SC 2875
12 (2003) 4 SCC 166
10
14. The purpose of highlighting this aspect is that in the
case at hand the proceeding before the Family Court was
conducted without being alive to the objects and reasons of
the Act and the spirit of the provisions Under
Section 125 of the Code. It is unfortunate that the case
continued for nine years before the Family Court. It has
come to the notice of the Court that on certain occasions
the Family Courts have been granting adjournments in a
routine manner as a consequence of which both the parties
suffer or, on certain occasions, the wife becomes the worst
victim. When such a situation occurs, the purpose of the
law gets totally atrophied. The Family Judge is expected to
be sensitive to the issues, for he is dealing with extremely
delicate and sensitive issues pertaining to the marriage and
issues ancillary thereto. When we say this, we do not mean
that the Family Courts should show undue haste or
impatience, but there is a distinction between impatience
and to be wisely anxious and conscious about dealing with
a situation. A Family Court Judge should remember that
the procrastination is the greatest assassin of the lis before
it. It not only gives rise to more family problems but also
gradually builds unthinkable and Everestine bitterness. It
leads to the cold refrigeration of the hidden feelings, if still
left. The delineation of the lis by the Family Judge must
reveal the awareness and balance. Dilatory tactics by any
of the parties has to be sternly dealt with, for the Family
Court Judge has to be alive to the fact that the lis before
him pertains to emotional fragmentation and delay can feed
it to grow. We hope and trust that the Family Court Judges
shall remain alert to this and decide the matters as
expeditiously as possible keeping in view the objects and
reasons of the Act and the scheme of various provisions
pertaining to grant of maintenance, divorce, custody of
child, property disputes, etc." [emphasis
supplied]
13. When the aforesaid anguish was expressed, the predicament was
not expected to be removed with any kind of magic. However, the fact
remains, these litigations can really corrode the human relationship
11
not only today but will also have the impact for years to come and has
the potentiality to take a toll on the society. It occurs either due to
the uncontrolled design of the parties or the lethargy and apathy
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 8/13
shown by the Judges who man the Family Courts. As far as the first
aspect is concerned, it is the duty of the Courts to curtail them.
There need not be hurry but procrastination should not be manifest,
reflecting the attitude of the Court. As regards the second facet, it is
the duty of the Court to have the complete control over the proceeding
and not permit the lis to swim the unpredictable grand river of time
without knowing when shall it land on the shores or take shelter in a
corner tree that stands "still" on some unknown bank of the river. It
cannot allow it to sing the song of the brook. "Men may come and
men may go, but I go on for ever." This would be the greatest tragedy
that can happen to the adjudicating system which is required to deal
with most sensitive matters between the man and wife or other family
members relating to matrimonial and domestic affairs. There has to
be a pro‐active approach in this regard and the said approach should
be instilled in the Family Court Judges by the Judicial Academies
functioning under the High Courts. For the present, we say no more.
14. Coming to the reduction of quantum by the High Court, it is
noticed that the High Court has shown immense sympathy to the
12
husband by reducing the amount after his retirement. It has come on
record that the husband was getting a monthly salary of Rs.17,654/‐.
15. The High Court, without indicating any reason, has reduced the
monthly maintenance allowance to Rs.2,000/‐. In today's world, it is
extremely difficult to conceive that a woman of her status would be in
a position to manage within Rs.2,000/‐ per month. 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
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 9/13
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
13
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. While determining the
quantum of maintenance, this Court in Jabsir Kaur Sehgal v.
District Judge Dehradun & Ors.13 has held as follows:‐
"The court has to consider the status of the parties, their
respective needs, the capacity of the husband to pay having
regard to his reasonable expenses for his own maintenance
and of those he is obliged under the law and statutory but
involuntary payments or deductions. The amount of
maintenance fixed for the wife should be such as she can
live in reasonable comfort considering her status and the
mode of life she was used to when she lived with her
husband and also that she does not feel handicapped in the
prosecution of her case. At the same time, the amount so
fixed cannot be excessive or extortionate."
13 (1997) 7 SCC 7
14
16. Grant of maintenance to wife has been perceived as a measure of
social justice by this Court. In Chaturbhuj v. Sita Bai14, it has been
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 10/13
ruled that:‐
"Section 125 CrPC is a measure of social justice and is
specially enacted to protect women and children and as
noted by this Court in Captain Ramesh Chander Kaushal v.
Veena Kaushal15 falls within constitutional sweep of Article
15(3) reinforced by Article 39 of the Constitution of India. It
is meant to achieve a social purpose. The object is to
prevent vagrancy and destitution. It provides a speedy
remedy for the supply of food, clothing and shelter to the
deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and
parents when they are unable to maintain themselves. The
aforesaid position was highlighted in Savitaben Somabhai
Bhatiya v. State of Gujarat16."
This being the position in law, it is the obligation of the husband
to maintain his wife. He cannot be permitted to plead that he is
unable to maintain the wife due to financial constraints as long as he
is capable of earning.
17. In this context, we may profitably quote a passage from the
judgment rendered by the High Court of Delhi in Chander Prakash
Bodhraj v. Shila Rani Chander Prakash17 wherein it has been
opined thus:‐
"An able‐bodied young man has to be presumed to be
capable of earning sufficient money so as to be able
14 (2008) 2 SCC 316
15 (1978) 4 SCC 70
16 (2005) 3 SCC 636
17 AIR 1968 Delhi 174
15
reasonably to maintain his wife and child and he cannot be
heard to say that he is not in a position to earn enough to
be able to maintain them according to the family standard.
It is for such able‐bodies person to show to the Court
cogent grounds for holding that he is unable to reasons
beyond his control, to earn enough to discharge his legal
obligation of maintaining his wife and child. When the
husband does not disclose to the Court the exact amount of
his income, the presumption will be easily permissible
against him."
18. From the aforesaid enunciation of law it is limpid that the
obligation of the husband is on a higher pedestal when the question
of maintenance of wife and children arises. When the woman leaves
the matrimonial home, the situation is quite different. She is
deprived of many a comfort. Sometimes the faith in life reduces.
Sometimes, she feels she has lost the tenderest friend. There may be
a feeling that her fearless courage has brought her the misfortune.
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 11/13
At this stage, the only comfort that the law can impose is that the
husband is bound to give monetary comfort. That is the only
soothing legal balm, for she cannot be allowed to resign to destiny.
Therefore, the lawful imposition for grant of maintenance allowance.
19. In the instant case, as is seen, the High Court has reduced the
amount of maintenance from Rs.4,000/‐ to Rs.2,000/‐. As is
manifest, the High Court has become oblivious of the fact that she
has to stay on her own. Needless to say, the order of the learned
16
Family Judge is not manifestly perverse. There is nothing perceptible
which would show that order is a sanctuary of errors. In fact, when
the order is based on proper appreciation of evidence on record, no
revisional court should have interfered with the reason on the base
that it would have arrived at a different or another conclusion. When
substantial justice has been done, there was no reason to interfere.
There may be a shelter over her head in the parental house, but other
real expenses cannot be ignored. Solely because the husband had
retired, there was no justification to reduce the maintenance by 50%.
It is not a huge fortune that was showered on the wife that it deserved
reduction. It only reflects the non‐application of mind and, therefore,
we are unable to sustain the said order.
20. Having stated the principle, we would have proceeded to record
our consequential conclusion. But, a significant one, we cannot be
oblivious of the asseverations made by the appellant. It has been
asserted that the respondent had taken voluntary retirement after the
judgment dated 17.2.2012 with the purpose of escaping the liability
to pay the maintenance amount as directed to the petitioner; that the
last drawn salary of respondent taken into account by the learned
Family Judge was Rs.17,564/‐ as per salary slip of May, 2009 and
after deduction of AFPP Fund and AGI, the salary of the respondent
17
was Rs.12,564/‐ and hence, even on the basis of the last basic pay
(i.e. Rs.9,830/‐) of the respondent the total pension would come to
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 12/13
Rs.14,611/‐ and if 40% of commutation is taken into account then
the pension of the respondent amounts to Rs.11,535/‐; and that the
respondent, in addition to his pension, hand received encashment of
commutation to the extent of 40% i.e. Rs.3,84,500/‐ and other retiral
dues i.e. AFPP, AFGI, Gratuity and leave encashment to the tune of
Rs.16,01,455/‐.
21. The aforesaid aspects have gone uncontroverted as the
respondent‐husband has not appeared and contested the matter.
Therefore, we are disposed to accept the assertions. This exposition
of facts further impels us to set aside the order of the High Court.
22. Consequently, the appeals are allowed, the orders passed by the
High Court are set aside and that of the Family Court is restored.
There shall be no order as to costs.
........................................J.
[DIPAK MISRA]
........................................J.
[PRAFULLA C. PANT]
NEW DELHI
APRIL 06, 2015.
18
ITEM NO.1A COURT NO.5 SECTION II
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Crl.A. Nos.564‐565 of 2015 @
Petition(s) for Special Leave to Appeal (Crl.) Nos.6380‐6381/2014
SHAMIMA FAROOQUI Petitioner(s)
VERSUS
SHAHID KHAN Respondent(s)
Date: 06/04/2015 These appeals were called on for pronouncement
of Judgment today.
For Petitioner(s)
Mr. S. R. Setia, AOR
For Respondent(s)
4/8/2015 courtnic.nic.in/supremecourt/temp/sr 6380638114p.
txt
https://courtnic.nic.in/supremecourt/temp/sr%206380638114p.
txt 13/13
Hon'ble Mr. Justice Dipak Misra, pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mr. Justice Prafulla C. Pant.
Leave granted.
The appeals are allowed in terms of the signed
reportable judgment.
(Chetan Kumar) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)
