AIR 2015 SUPREME COURT 2025
AIR 2015 SUPREME COURT 2025
SUPREME COURT
DIPAK MISRA, J. and PRAFULLA C. PANT , J.
Criminal Appeal Nos. 564-565 of 2015 (arising out of SLP (Cri) Nos. 6380-6381 of 2014), D/-6-4-2015
Shamima Farooquiv.Shahid Khan
(A) Criminal P.C. (2 of 1974),S.125- Maintenance - Muslim divorced woman - Can apply for
maintenance under S. 125. (Para10)
(B) Criminal P.C. (2 of 1974),S.125- Application for maintenance -Delay in disposal - An
unacceptable situation - Application has to be disposed of at earliest - Apathetic attitude of family
courts towards S. 125 application, deprecated - Family court Judges should have proactive
approach in such matters - Judicial academies asked to instill such approach in family court
Judges. (Paras1213)
(C) Criminal P.C. (2 of 1974),S.125- Maintenance - Fixation of quantum - Object of S. 125 is
amelioration of financial status of wife so that she can sustain herself - Sustenance cannot mean
mere survival - Quantum of maintenance has therefore to be so fixed that she is entitled to lead a
life in similar manner as she would have lived in house of her husband. (Para14)
(D) Criminal P.C. (2 of 1974),S.125- Maintenance - Absolute right of wife - Cannot be defeated on
pleas that husband does not have means to pay, for he does not have a job or his business is not
doing well - If husband is healthy, able bodied and is in a position to support himself, he is under
legal obligation to support his wife. (Paras1516)
(E) Criminal P.C. (2 of 1974),S.125,S.401- Maintenance order - Revisibility - Quantum of
maintenance fixed on proper appreciation of evidence - Revisional court cannot interfere only on
base that it would have arrived at different conclusion. (Para19)
(F) Criminal P.C. (2 of 1974),S.125,S.127- Maintenance - Reduction -Retirement of husband -
Cannot be sole ground to reduce maintenance by 50%. (Para19)
Cases Referred Chronological Paras
AIR 2014 SC 2875:AIR 2014 SC (Cri) 1858:2014 AIR SCW
4201:2014 Cri LJ 3979 12
AIR 2014 SC (Supp) 463:AIR 2014 SC (Cri) 1446:2014 AIR
SCW 3369 10
(2014) 12 SCC 646 10
AIR 2010 SC 305:2009 AIR SCW 7490 10
AIR 2008 SC 530:2007 AIR SCW 7416:2008 Cri LJ 727 16
AIR 2005 SC 1809:2005 AIR SCW 1601:2005 Cri LJ 2141 16
AIR 2003 SC 2525:2003 AIR SCW 2710 12
AIR 2001 SC 3958:2001 AIR SCW 3932:2001 Cri LJ 4660 10
2000 (2) JIC 967 (All) 7
1999 (2) JIC 323 (ACC) 7
1999 (2) 763 Allahabad J. I.C 7
1998 Cri LJ 1084:1998 All LJ 77 (All) 7
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Cases Referred Chronological Paras
AIR 1997 SC 3397:1997 AIR SCW 3474 15
1991 (2) Crimes 725 (All) 7
1990 Cri LJ 1884 (All) 7
AIR 1978 SC 1807 16
AIR 1968 Del 174:1968 Cri LJ 1153 17
S. R. Setia, for Peititoner.
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Judgement
1.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 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 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 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
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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 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 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 Judge5and Sartaj v.
State of U.P. and others6and 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
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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.
1. 1991 (2) Crimes 725 (All).
2. 1990 Cri LJ 1884.
3. 1999 (2) JIC 323 (ACC).
4. 1999 (2) 763 Allahabad JIC
5. 1999 (2) JIC 522 All : (1998 Cri LJ 1084 (All)).
6. 2000 (2) JIC 967 All.
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.
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In Shamim Bano v. Asraf Khan7, this Court after referring to the Constitution Bench decisions in Danial
Latifi v. Union of India8and Khatoon Nisa v. State of U.P.9had opined as follows:
7. (2014) 12 SCC 636 : (AIR 2014 SC (Supp) 463).
8. (2001) 7 SCC 740 : (AIR 2001 SC 3958).
9. (2014) 12 SCC 646.
"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:-
10. (2010) 1 SCC 666 : (AIR 2010 SC 305).
"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 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 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
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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:-
11. AIR 2014 SC 2875.
@page-SC2029
"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:-
12. (2003) 4 SCC 166 : (AIR 2003 SC 2525).
"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."
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 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
forever." 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 proactive approach in this regard and
@page-SC2030
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 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
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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 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 and Ors.13has held as follows:-
13. (1997) 7 SCC 7 : (AIR 1997 SC 3397).
"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:-
14. (2008) 2 SCC 316 : (AIR 2008 SC 530).
"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 Kaushal15falls 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
15. (1978) 4 SCC 70 : (AIR 1978 SC 1807).
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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."
16. (2005) 3 SCC 636 : (AIR 2005 SC 1809).
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 Prakash17wherein it has been opined thus:-
17. AIR 1968 Delhi 174.
"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 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 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
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AIR 2015 SUPREME COURT 2025
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
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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.
Appeal Allowed.
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