Qualified wife can't sit idle and claim maintenance: Bombay High Court 24 Jan 2015

IN THE FAMILY COURT MUMBAI AT BANDRA

PETITION NO. E­ 119 OF 2013

Firdos Mohd. Shoeb Khan .. Petitioner Vs.

Mohd.Shoeb Mohd.Salim Khan .. Respondent

ORDER BELOW EXH.27

1. This is an application moved by petitioner­Firdoz Mohd. For grant of maintenance from her husband Mohd.Shoeb, during the pendency of petition for grant of maintenance u/s 125 of Cr.P.C. It is submitted by the petitioner that at the time of Nikah Meher amount of Rs.14 lakhs was fixed, yet said amount was not paid by the respondent. Throughout their cohabitation at the matrimonial house the respondent and his family members had illtreated her, harassed her physically and mentally for bringing less dowry. The respondent and his family members had demanded more Rs.50 lakh as dowry and gold ornaments, Mercedes Benz Car etc. from her parents. Due to demand of dowry the petitioner was forced to live separately from April 2011, since then she is residing with her parents. She has no source of income and she is totally depend upon the mercy of her parents. The respondent is capable to pay maintenance to her but he has neglected and refused to pay maintenance.

2. The respondent is a successful businessman, his family is business family. The respondent alongwith his family members was doing business not only in India but also in Dubai and other countries. They are running their business jointly and earning the income more than Rs.15 lakh per month. The respondent and family members were having property at Mumbai, Bangalore, Dubai and other places. The respondent is having six companies, 20 bank

 

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accounts at Mumbai, Dubai and Bangalore. His younger brother is working at London, his two siblings are in family business. The respondent is travelling abroad for garment business work. Considering the status of her husband she prayed for grant of maintenance @ Rs.2 lakhs per month.

3. The respondent has filed his reply below Exh.29. According to him, the petitioner­wife is not entitled to get maintenance as she is not legally wedded wife. The marriage between petitioner and respondent was dissolved by way of Talaq on 7.09.2014. Secondly, the petitioner is well qualified having good experience and good income therefore, she is not entitled for grant of maintenance. The petitioner has given false address before this Court, actually all earlier communication was made on the address of ancil Tower, New Mill Road, Kurla.

4. The petitioner is living luxurious life, she has huge investment including over rs.1 crores worth of gold and diamond jewellery hidden in separate locker. She is flying international destination at least thrice every year for 15 to 30 days. The petitioner is graduate and working independently in a prime institute likely Nair hospital, Larsen & Tubro etc. Presently she is practicing as a dietitian. Her income is not less than Rs.50,000/­­per month. She is having sufficient means from her own source, on that count also she is not entitled for grant of maintenance hence, respondent prayed for rejection of application.

5. Heard learned counsel for petitioner and respondent. It is argued by the learned counsel for respondent that on 7.9.2014 their marital tie was dissolved as he had given talaq to her therefore, petitioner has lost the status of wife and being divorcee Muslim wife she is not entitled to get maintenance from the respondent. The Mohd. Law is drastically changed in a recent era. Now a days a Muslim woman who is divorcee or who obtained divorce from her husband is entitled to get maintenance from her husband till she gets

 

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remarried. Apart from this, Section 125 of Cr.P.C., itself has given defination of 'wife' which includes divorcee wife. Section 125 explanation (b) read as under :(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

6. The above clause clearly shows that the wife though divorcee is entitled to get maintenance from her husband and divorcee wife is included by Legislature in the defination of wife for the purpose of maintenance. The Law in respect of maintenance of Muslim wife is day by day changing. First time in the case of Shabana Banoo Vs. Inbram Khan, reported in I (2010) D.M.C. 37, (SC), the Hon'ble Supreme Court has held that the Muslim Divorcee wife is entitled to get maintenance from her husband.

7. While dealing with the case of Parveen Rao Vs. State of Utterakhand and another, reported in I (2013) D.M.C., 743, the Hon'ble Utterakhand High Court in para No.12 held that,

In view of proposition of law laid down in aforesaid precedent, it is abundantly clear that the Muslim woman cannot be forced to claim maintenance under the Act only. She is well entitled to claim maintenance u/s 125 of Cr.P.C. irrespective of fact whether she has been divorced or not provided she has not remarried herself.
8. In the anvil of above legal position it is clear that the Muslim woman who is either divorcee or who obtained divorce entitled to get maintenance till her remarriage. In such circumstances the story brought by respondent that on 7.09.2014 talaq took place between them does not affect the right of petitioner to claim maintenance. The story brought by the respondent that on 7.9.2014 he had given talaq to her is the subject matter of evidence and it can be proved during the course of proceeding but at this stage, the status of respondent cannot be denied. She is having status of wife