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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

J U D G M E N T

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 and refuse to  

be  tied  down to  the  obscurant  conservatism,  and further  

determined to ostracize the “principle of commodity”, and

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the  “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  

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

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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 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

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when all her hopes got shattered for reunion, she filed an  

application for grant of 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  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

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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 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 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

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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  Dikshit  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  

others6 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  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  

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

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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 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 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  

7  (2014) 12 SCC 636

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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  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  

8  (2001) 7 SCC 740 9  (2014) 12 SCC 646 10 (2010) 1 SCC 666

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principle  stated  by  the  Constitution  Bench  in  Khatoon Nisa (supra).”

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 that though the application for grant of

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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  three-Judge  Bench  in K.A.  Abdul  Jaleel v. T.A.  Shahida12,  while  highlighting on the purpose of  bringing in  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  

11  AIR 2014 SC 2875 12 (2003) 4 SCC 166

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in,  and  secure  speedy  settlement  of,  disputes relating to marriage and family  affairs  and  for  matters  connected  therewith.”

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

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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 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 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

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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 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

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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  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 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

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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.”   

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 ruled that:-

13  (1997) 7 SCC 7 14  (2008) 2 SCC 316

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“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 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  

15 (1978)  4 SCC 70 16 (2005) 3 SCC 636 17  AIR 1968 Delhi 174

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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.   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 Family Judge is not

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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

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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 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 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.

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........................................J.     [DIPAK MISRA]

........................................J.                     [PRAFULLA C. PANT] NEW DELHI APRIL 06, 2015.