Patna High Court
Bulbul Khatoon vs The State Of Bihar on 7 July, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.509 of 2021
Arising Out of PS. Case No.- Year-0 Thana- District- Purnia
======================================================
1. Bulbul Khatoon Wife Of Md. Shamshad @ Md. Samsad, Daughter Of Md.
Hafizuddin Resident Of Village - Sadhubaili, P.S. - Kasba, District - Purnea
Presently Residing At Village - Chandi, Aga Tola, P.S. - Sadar Mufassil,
Dist. - Purnea.
2. Danish Raza @ Rahul Son Of Md. Shamshad @ Md. Samsad Through His
Mother Bulbul Khatoon, Resident Of Village - Sadhubaili, P.S. - Kasba,
District - Purnea Presently Residing At Village - Chandi, Aga Tola, P.S. -
Sadar Mufassil, Dist. - Purnea.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Md. Shamshad @ Md. Samsad Son Of Late Md. Zamil @ Late Bahru Jamil
Resident Of Village - Sadhubaili, P.S. - Kasba, District - Purnea.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Md Fazle Karim, Advocate
For the State : Mr. Anuj Kumar Shrivastava, APP
For the Informant : Mr. N.K. Agrawal, Sr. Advocate
Dr. Bidhu Ranjan, Advocate
Mr. Saroj Kumar Choudhary, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 07-07-2025
Introduction
The present Criminal Revision Petition has been
preferred by the petitioners, praying for setting aside the
impugned judgment/order dated 04.04.2020 and direct the O.P.
No. 2 to pay Rs. 20,000/- per month to the petitioners towards
their maintenance. The impugned order dated 04.04.2020 has
been passed by learned Principal Judge, Family Court, Purnia in
Maintenance Case No. 295 of 2017, whereby O.P. No. 2/Md.
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Shamshad has been directed to pay maintenance to the
petitioner No. 2/Danish Raza @ Rahul at the rate of Rs. 4,000/-
per month from the date of order i.e. 04.04.2020. However,
petitioner No. 1/Bulbul Khatoon has been denied any
maintenance holding that she is not entitled to get any
maintenance from O.P. No. 2.
The Case of the Petitioners
2. The petitioners have filed Maintenance Case No.
295 of 2017 on 30.10.2017 before the Family Court, Purnia
under Section 125 Cr.PC against O.P. No. 2 herein/Md.
Shamshad, who is husband of the petitioner No. 1/Bulbul
Khatoon and father of petitioner No. 2/Danish Raza @ Rahul,
stating that the marriage between Bulbul Khatoon and Md.
Shamshad was solemnized on 18.02.2013 as per Muslim Rites
and Customs and after the marriage, Bulbul Khatoon joined the
matrimonial home of her husband/Md. Shamshad and
subsequently, Danish Raza @ Rahul was born out of the
wedlock in March, 2014. It was further stated that during the
pregnancy, Bulbul Khatoon came back to her parental home on
account of ill behavior of relatives of her husband and after the
birth of the child, her husband and his family members started
demanding Rs. 5 lac towards additional dowry and they
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threatened that in case, she failed to pay the additional dowry,
Md. Shamshad would solemnize second marriage with other
girl. As per further case, on account of failure of Bulbul
Khatoon to pay the additional dowry, she was ousted from the
matrimonial home on 17.07.2017 along with newly born child
and even her ornaments were snatched from her. It was further
stated that after ousting his wife Bulbul Khatoon, Md.
Shamshad solemnized second marriage with one Kajal Khatoon,
daughter of Md. Naseem. It is also stated that Bulbul Khatoon
was unable to maintain herself and her minor son, whereas Md.
Shamshad has sufficient means to maintain his wife and child
having ten acres of agricultural land, tractor and corn factory
machine and having Rs.5 lac annual income. Bulbul Khatoon
and her son Danish Raza @ Rahul had claimed for monthly
maintenance @ Rs.20,000/-.
The Case of the Respondent No. 2
3. On notice, Md. Shamshad appeared before the
Family Court and filed his written statement contesting the
maintenance petition filed by Bulbul Khatoon and her son.
However, he has admitted his marriage with Bulbul Khatoon
and his paternity of Danish Raza @ Rahul. However, he claimed
in his written statement that after the marriage, Bulbul Khatoon
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joined his matrimonial home and thereafter, she went back to
her maike and thereafter, she was again taken back to the
matrimonial home. However, during her stay at his matrimonial
home, she developed illicit relationship with one Md. Tarikat.
He further claimed that Md. Tarikat hatched conspiracy to entice
his wife away from his house and under his conspiracy, his wife
Bulbul Khatoon left the matrimonial home on 14.06.2017 and
went back to her maike and thereafter ran away from her
parental home with Md. Tarikat along with her son. Thereafter,
at 9 O'clock on 16.06.2017, Md. Shamshad called a panchayat
at Library Bhawan at Sadhubaili under the Chairmanship of
former Sarpanch/Md. Firoz, which was appointed by the present
Mukhiya, Sarpanch and other dignitaries of the village.
Panchayat was attended by Md. Hasim, father of Md. Tarikat
and elder brother of Bulbul Khatoon. After hearing both the
parties, the panch entrusted the responsibility to Md. Hasim,
father of Md. Tarikat and elder brother of his wife to search
Bulbul Khatoon and her son and hand them over to Md.
Shamshad by 21.06.2017. However, his wife and son were not
handed over and hence, panchayat was again called on
21.06.2017
, in which Md. Hasim, father of Md. Tarikat
promised that he would ensure that the wife of Md. Shamshad
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and his son would be present after Eid. Thereafter, panchayat
was called on 01.07.2017, but Md. Hasim refused to attend that
panchayat and hence, Md. Shamshad was advised by the
panchayat to move Court. Thereafter, Md. Shamshad went to
Darul Kaja Edara Sharia, Koshi Commissionary, Purnia and he
informed it that his wife had become characterless, because she
had run away with some other man and hence, he divorced her
and got a certificate of divorce from Darul Kaja Edara Sharia. It
was further claimed by Md. Shamshad that Bulbul Khatoon has
been living with Md. Tarikat since 14.06.2017 without any valid
reason and she has been already divorced and hence, she is no
longer his wife. He has also claimed that he was not given any
gift or dowry at the time of marriage. Only item of Rs.10,000/-
to 15,000/- was given to him on the occasion of marriage. He
has also denied that any demand of dowry was made by him. He
has also categorically denied that he ousted Bulbul Khatoon
from his matrimonial home and as a matter of fact, there was
illicit relationship between Bulbul Khatoon and Md. Tarikat and
hence, she had fled away from the matrimonial home. Hence, he
claims that he is not liable to pay any maintenance to Bulbul
Khatoon. He has further claimed that he is a landless laborer
earning hardly Rs. 3,000/- to Rs. 3,500/- per month, with no
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other source of income.
Disputes Between the Parties
4. From the pleadings and the submissions of the
parties, it clearly emerges that marriage between Bulbul
Khatoon and Md. Shamshad is not disputed and it is also not
disputed that Danish Raza @ Rahul is legitimate son of Md.
Shamshad. Hence, the disputes/points which arise for
determination by this Court are as follows:-
(i) whether Bulbul Khatoon has been validly divorced
by her husband Md. Shamshad;
(ii) whether Bulbul Khatoon has left the matrimonial
home without any rhyme and reason, and;
(iii) whether Bulbul Khatoon has been living in
adultery, and;
(iv) whether Bulbul Khatoon is entitled to get
maintenance and if yes, what should be the amount;
(v) whether the maintenance at the rate of Rs. 4,000/-
per month awarded in favour of Danish Raza @ Rahul is just
and proper;
(vi) Maintenance awarded should be payable from the
date of filing the Maintenance petition or from the date of the
impugned order.
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Evidence of the Petitioners
5. During trial, Bulbul Khatoon has examined
altogether three witnesses, including herself. Md. Azimuddin,
brother of Bulbul Khatoon has been examined as P.W.-1, Bulbul
Khatoon has been examined as P.W.-2 and Firoza Khatoon, a
co-villager of Bulbul Khatoon of her maike, has been examined
as P.W.-3. However, no documentary evidence has been
adduced by Bulbul Khatoon in support of her maintenance
petition.
6. On perusal of the evidence adduced on behalf of the
petitioners, I find that petitioner/Bulbul Khatoon has been
examined as P.W.-2. In her examination-in-chief, she has
reiterated her statements as made in her maintenance petition
filed under Section 125 Cr.PC. In her cross-examination, she
has deposed that she has left her matrimonial home for about 5-
6 months and her son was born at her maike and she has made
4-5 visits from sasural to maike. She has also lodged one
criminal complaint against her husband/Md. Shamshad.
However, she has not lodged any complaint to the police
regarding assault by her husband. She has not got her injury
treated. She is also not able to show any document in regard to
landed property belonging to her husband. She has also failed to
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produce any document in support of claim that her husband has
tractor. However, she has denied the suggestion that her husband
is landless laborer and she is having illicit relationship with one
Md. Tarikat. She has also denied the suggestion that she had fled
away with Md. Tarikat on 14.06.2017. She has also denied the
suggestion that any panchayat was held. She has also denied the
suggestion that she has divorced by her husband. She has also
denied the suggestion that she has been living with Md. Tarikat.
P.W.-1, Md. Azimuddin, who is brother of Bulbul Khatoon has
also supported the case of his sister. P.W.-3 is Firoza Khatoon,
who is a co-villager of Bulbul Khatoon, has also supported the
case of Bulbul Khatoon.
Evidence of Respondent No. 2
7. Respondent No. 2/Md. Shamshad has also
examined seven witnesses including himself in support of his
case. He has also got exhibited panchnama dated 16.06.2017 as
Ext.-A, panchanama dated 01.07.2017 as Ext. A/1 and
application dated 21.06.2017 has been exhibited as Ext.-B.
8. Md. Shamshad has been examined as OP.W.-5. In
his examination-in-chief, by way of affidavit, has reiterated his
statements as made in his written statement. During cross-
examination, he has deposed that Bulbul Khatoon is no longer
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his wife, because she has fled away with Md. Tarikat. However,
he has admitted that Danish Raza @ Rahul is his son. He has
further deposed that he has solemnized second marriage and he
has one daughter born out of the second marriage and he has
been maintaining his second wife and his daughter. He is a
labourer and his father has no landed property and he earns
Rs.5000/- per month by doing labour work. He has divorced
Bulbul Khatoon through Darul Kaja. He has filed one
application to Darul Kaja for divorce upon which Darul Kaja
had issued notice, but Bulbul Khatoon did not appear before it
and he had given divorce in writing. However, talaknama does
not bear the signature or thumb impression of Bulbul Khatoon.
He has also admitted that he has not paid any Denmehar to
Bulbul Khatoon. Talaknama has been signed by a witness,
namely, Sahraj Maulana, who is a co-villager. He has further
claimed that he had heard about illicit relationship of Bulbul
Khatoon with Md. Tarikat and he has witnessed to it also. He
can prove the illicit relationship between the two. He had denied
the suggestion that he is a contractor of labourers and he earns a
lot out of work of contractor. He has also denied the suggestion
that he had tortured Bulbul Khatoon for dowry and grant of
divorce. He has also denied the suggestion that he had ousted
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Bulbul Khatoon from his matrimonial house. He has also denied
the suggestion that Bulbul Khatoon had never illicit relationship
with Md. Tarikat.
9. OP.W-1, Ibrahim Khan, who is co-villager of Md.
Shamshad, has supported the case of Md. Shamshad. He was
also signatory on the panchnama dated 16.06.2017. However, he
has deposed that he has not seen Bulbul Khatoon fleeing away
with Md. Tarikat. However, he had seen her thereafter. He has
further deposed that he had seen Bulbul Khatoon establishing
illicit relationship with Md. Tarikat. However, he had not seen
Bulbul Khatoon fleeing away with Md. Tarikat. He came to
know Md. Shamshad that his wife had fled away.
10. OP.W-2, Salim, who is also a co-villager of Md.
Shamshad, has supported the case of Md. Shamshad. In his
cross-examination, he has deposed that he has seen Bulbul
Khatoon establishing illicit relationship with Md. Tarikat but he
does not remember the date. He had seen Md. Tarikat and
Bulbul Khatoon establishing relationship in the courtyard and he
had informed Md. Shamshad about it, but he does remember the
date but after two or four days, he had informed Md. Shamshad
about this occurrence but he has not informed it to any co-
villagers. He is also not aware whether Md. Shamshad has
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lodged any complaint to the police regarding his wife. He has
also deposed that he had not seen Bulbul Khatoon fleeing away
with Md. Tarikat. He has also deposed that he had attended the
panchayat and put his signature the attendence on panchanama.
Md. Shamshad has no landed property and he works as a laborer
earning Rs. 150 to Rs. 200 per day. Md. Shamshad has not
solemnized any second marriage. Md. Shamshad has never
visited the maike of his wife. He does not pay any maintenance
to Bulbul Khatoon. He is also not aware whether Md. Shamshad
is paying any maintenance for his child.
11. OP.W-3, Md. Manir, has also supported the case
of Md. Shamshad. In his cross-examination, he has deposed
that he had attended the panchayat on 01.06.2017. Md.
Shamshad earns Rs. 200 per day as a laborer and his father has
no landed property.
12. OP.W-4, Md. Merajuddin, in his examination-
in-chief, he has also supported the case of Md. Shamshad. In his
cross-examination, he has deposed that Md. Shamshad has
entered into second marriage with Kajal Perween about 1 and ¼
years ago. The house of Md. Shamshad is situated at the
distance of 500 meter from his house. Information about love
and relationship between Md. Tarikat and Bulbul Khatoon has
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been informed to him by Md. Shamshad. He has also put his
signature on panchanama dated 16.06.2017 as a witness. He is
not aware where Bulbul Khatoon is living at present. He is also
not aware that after desertion of Bulbul Khatoon by Md.
Shamshad and when Md. Shamshad had gone to see her. He has
also deposed that Md. Shamshad has not landed property but he
takes care of his second wife. There is one child with second
wife. He did not try to know from Md. Shamshad that who
maintain Bulbul and her son.
13. OP.W.-6, Md. Manzoor Ali, who is also a co-
villager and he is also attended the panchayat dated 16.06.2017
and he has put his signature on the panchayatnama as a witness.
In his cross-examination, he has deposed that there is no
signature of Bulbul Khatoon on the panchanama and in that
panchayat, the brother of Bulbul Khatoon is present. Md.
Shamshad had divorced Bulbul Khatoon in his presence by
Trible Talaq in the absence of Bulbul Khatoon. He got
information from the villagers that Bulbul Khatoon is a
characterless lady and she has established physical relationship
with men other than the husband. He is also one of the accused
in criminal case filed by Bulbul Khatoon under Section 498A.
Md. Shamshad has entered into second marriage.
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14. OP.W-7, Sitabuddin, who is also a co-villager
and he has also supported the case of Md. Shamshad in his
examination-in-chief, filed by way of affidavit. In his cross-
examination, he has deposed that he was informed that Bulbul
Khatoon has illicit relationship with Md. Tarikat. As per the
cross-examination, he is the hearsay witness in regard to claim
of Md. Shamshad that Bulbul Khatoon has illicit relationship
with Md. Tarikat.
Findings of the Trial Court
15. After trial, learned Family Court passed the
impugned order rejecting the application of Bulbul Khatoon for
her maintenance, however, maintenance @ Rs.4,000/- per
month was directed to be paid to Danish Raza @ Rahul, son of
Bulbul Khatoon.
16. Being aggrieved by the impugned order, the
petitioners have preferred the present criminal revision petition.
Submissions of the Parties
17. I heard learned counsel for the petitioners, learned
APP for the State and learned counsel for the Respondent No. 2.
18. Learned counsel for the petitioners submits that on
account of perverse appreciation of evidence on record, learned
Family Court has erroneously found that petitioner No. 1/Bulbul
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Khatoon is not entitled to get any maintenance from O.P. No.
2/husband. He further submits that there is no evidence on
record to prove that Bulbul Khatoon has been living in adultery.
19. He further submits that as a matter of fact, Bulbul
Khatoon was ousted from her matrimonial home by her
husband/Md. Shamshad and she has been living at her parental
home having no source of income and her husband/Md.
Shamshad is not providing any maintenance to her as well as
her minor son, despite the fact that he is a man of means having
source of income, earning Rs. 4 lac to 5 lac per annum.
20. He further submits that even the quantum of
maintenance awarded by the Family Court in favour of minor
son at the rate of Rs. 4,000/- per month is also on the lower side.
21. He further submits that by the impugned order,
learned Family Court has directed Md. Shamshad/O.P. No.2 to
pay the maintenance from the date of the order, whereas under
Section 125 Cr.PC, the maintenance must be payable from the
date of filing of the maintenance petition.
22. However, learned APP for the State and learned
counsel for the O.P. No. 2 vehemently support the impugned
order submitting that there is no illegality or infirmity in it.
23. He further submits that under Revisional
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Jurisdiction, this Court has limited scope to interfere in the
impugned order.
24. He also submits that there is no perversity in
appreciation of the evidence. Learned Family Court has rightly
dismissed the application of Bulbul Khatoon for maintenance,
because she has been living in adultery with Md. Tarikat.
Moreover, she has bee divorced and she has also left the
matrimonial home on her own and has been living separately
without any rhyme and reason.
25. Learned counsel for the O.P. No. 2 also submits
that there is no illegality or infirmity regarding the quantum of
maintenance awarded by learned Family Court in favour of his
son Danish Raza @ Rahul.
26. I considered the submissions advanced by the
parties as well as perused the materials on record.
Extent and Scope of Revisional Jurisdiction of the
High Court
27. Before I proceed to consider the rival submission
of the parties, it is desirable to see the extent and scope of
revisional jurisdiction of High Court. As per the statutory
provisions and judicial precedents, it is settled principle of law
that the revisional jurisdiction conferred upon the High Court is
a kind of paternal or supervisory jurisdiction under Section 397
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read with Section 401 Cr.PC in order to correct the miscarriage
of justice arising out of judgment, order, sentence or finding of
subordinate Courts by looking into correctness, legality or
propriety of any finding, sentence or order as recorded or passed
by subordinate Courts and as to the regularity of any proceeding
of such inferior Courts.
28. However, the exercise of revisional jurisdiction by
the High Court is discretionary in nature to be applied
judiciously in the interest of justice.
29. Under revisional jurisdiction, the High Court is
not entitled to re-appreciate the evidence for itself as if it is
acting as a Court of appeal, because revisional power cannot be
equated with the power of an Appellate Court, nor can it be
treated even as a second appellate jurisdiction. Hence,
ordinarily, it is not appropriate for the High Court to re-
appreciate the evidence and come to its own conclusion on the
same when the evidence has already been appreciated by the
Trial and Appellate Court, unless there are exceptional situations
like glaring error of law or procedure and perversity of finding,
causing flagrant miscarriage of justice, brought to the notice of
the High Court. Such exceptional situations have been
enumerated by Hon’ble Apex Court on several occasions which
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are as follows:-
(i) when it is found that the trial court has no jurisdiction
to try the case or;
(ii) when it is found that the order under revision suffers
from glaring illegality or;
(iii) where the trial court has illegally shut out the evidence
which otherwise ought to have been considered or;
(iv) where the judgment/order is based on inadmissible
evidence, or;
(v) where the material evidence which clinches the issue
has been overlooked either by the Trial Court or the Appellate
Court or;
(vi) where the finding recorded is based on no evidence or;
(vii) where there is perverse appreciation of evidence or;
(viii) where the judicial discretion is exercised arbitrarily
or capriciously or;
(ix) where the acquittal is based on a compounding of the
offence, which is invalid under the law.
30. However, it has been cautioned by Hon’ble
Supreme Court that the aforesaid kinds of situations are
illustrative and not exhaustive.
31. In regard to revisional jurisdiction, one may refer
to the following judicial precedents:
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(i) Akalu Ahir and Ors. vs Ramdeo Ram
(1973) 2 SCC 583
(ii) K. Chinnaswami Reddy vs State of A.P.
1962 SCC Online SC 32
(iii) Duli Chand Vs Delhi Administration
(1975) 4 SCC 649
(1992) 4 SCC 305
(1998) 7 SCC 323
(vi) State of Kerala Vs. Puttumana I. J. Namboodiri
(1999) 2 SCC 452
(vii) Thankappan Nada & Ors. Vs. Gopala Krishnan
(2002) 9 SCC 393
(viii) Jagannath Chaudhary Vs. Ramayan Singh
(2002) 5 SCC 659
(ix) Bindeshwari Prasad Singh @ B.P. Singh & Ors.
Vs. State of Bihar (Now Jharkhand) & Anr.
(2002) 6 SCC 650
(x) Manju Ram Kalita v. State of Assam
(2009) 13 SCC 330
(xi) Amit Kapoor v. Ramesh Chander
(2012) 9 SCC 460
(2014) 1 SCC 87
(2015) 2 SCC 721
(xiv) Sanjaysinh R. Chavan Vs. D. G. Phalke
(2015) 3 SCC 123
(xv) Malkeet Singh Gill v. State of Chhattisgarh
(2022) 8 SCC 204Present Case
32. Coming to the case on hand, I find that the
petitioners have sought maintenance under Section 125 Cr.PC.
Hence, it is imperative to discuss the statutory provisions of
Section 125 Cr.PC and the relevant case laws.
Section 125 Cr.PC.
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33. Section 125 Cr.PC, which deals with the order for
maintenance of wife, children and parents, reads as follows:-
“125. Order for maintenance of wives, children
and parents.- (1) If any person having sufficient means
neglects or refuses to maintain –
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality
or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such
child, father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such
person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct:
Provided also that an application for the monthly
allowance for the interim maintenance and expenses of
proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of
the service of notice of the application to such person.]
Explanation. – For the purposes of this Chapter, –
(a) “minor” means a person who, under the provisions
of the Indian Majority Act, 1875 (9 of 1875) is deemed
not to have attained his majority,
(b) “wife” includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has
not re-married.
(2) Any such allowance for the maintenance or
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payable from the date of the order, or, if so ordered, from
the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may
be.
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate may,
for every breach of the order, issue a warrant for levying
the amount due in the manner provided for levying fines,
and may sentence such person, for the whole or any part
of each month’s allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless
application be made to the Court to levy such amount
within a period of one year from the date on which it
became due:
Provided further that if such person offers to maintain
his wife on condition of her living with him, and she
refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make an
order under this section notwithstanding such offer, if he
is satisfied that there is just ground for so doing.
Explanation. – If a husband has contracted marriage
with another woman or keeps a mistress, it shall be
considered to be just ground for his wife’s refusal to live
with him.
(4) No wife shall be entitled to receive an [allowance
for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be, from her
husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual
consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in adultery, or
that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.”
(Emphasis supplied)
34. As such, as per Section 125 Cr.PC, wife is entitled
to get maintenance from her husband, if she is living separately
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from her husband with sufficient reason, but not living in
adultery, and she has no means to maintain herself and the
husband, who has sufficient means, neglects or refuses to
maintain her.
35. As per the Explanation 2 to Section 125(1)
Cr.PC, it also transpires that “wife” includes a woman who has
been divorced by her husband, but has not remarried.
36. In Mohd. Ahmed Khan Vs. Shah Bano Begum
& Ors., popularly known as Shah Bano Case as reported in
(1985) 2 SCC 556, Hon’ble Constitution Bench of Apex Court
has held that Section 125 Cr.PC is secular in nature and it is not
in conflict with any particular religion or personal law. There is
also no conflict on the question of muslim husband’s obligation
to provide maintenance to a divorced wife who is unable to
maintain herself. The right of a divorced muslim woman to
claim maintenance under Section 125 Cr.PC is not affected by
personal law.
37. Subsequent to the pronouncement of the judgment
in Shah Bano Case (supra), a controversy arose regarding
obligation of a muslim husband to pay maintenance to his
divorced wife, particularly beyond iddat period. Hence,
Parliament as an attempt to clarify the position brought about
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the Muslim Women (Protection of Rights on Divorce) Act,
1986. Hon’ble Supreme Court got occasion in Danial Latifi Vs.
Union of India as reported in (2001) 7 SCC 740 to decide the
meaning and import of the Act, particularly with reference to
obligation of husband to pay maintenance to the divorced wife,
38. In Danial Latifi case (supra), Hon’ble
Constitution Bench of Supreme Court upheld the
constitutionality of the Act. However, it held that liability of a
muslim husband to pay maintenance to his divorced wife is not
confined to iddat period, if he fails to make a reasonable and fair
provision for future of a divorced wife during the iddat period
and the divorced wife has not re-married and she is unable to
maintain herself. Reasonable and fair provision may include
provision for her residence, her food, her clothes and other
articles. The relevant paragraphs of the judgment read as
follows:-
“28. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a reasonable
and fair provision for maintenance. It was stated that
Parliament seems to intend that the divorced woman gets
sufficient means of livelihood after the divorce and,
therefore, the word “provision” indicates that something is
provided in advance for meeting some needs. In other
words, at the time of divorce the Muslim husband is
required to contemplate the future needs and make
preparatory arrangements in advance for meeting those
needs. Reasonable and fair provision may include
provision for her residence, her food, her clothes, and
other articles. The expression “within” should be read as
Patna High Court CR. REV. No.509 of 2021 dt.07-07-2025
23/37“during” or “for” and this cannot be done because words
cannot be construed contrary to their meaning as the word
“within” would mean “on or before”, “not beyond” and,
therefore, it was held that the Act would mean that on or
before the expiration of the iddat period, the husband is
bound to make and pay maintenance to the wife and if he
fails to do so then the wife is entitled to recover it by filing
an application before the Magistrate as provided in
Section 3(3) but nowhere has Parliament provided that
reasonable and fair provision and maintenance is limited
only for the iddat period and not beyond it. It would
extend to the whole life of the divorced wife unless she
gets married for a second time.
36. While upholding the validity of the Act, we may sum
up our conclusions:
(1) A Muslim husband is liable to make reasonable and
fair provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act.
(2) Liability of a Muslim husband to his divorced wife
arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to the iddat period.
(3) A divorced Muslim woman who has not remarried and
who is not able to maintain herself after the iddat period
can proceed as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion
to the properties which they inherit on her death according
to Muslim law from such divorced woman including her
children and parents. If any of the relatives being unable
to pay maintenance, the Magistrate may direct the State
Wakf Board established under the Act to pay such
maintenance.
(4) The provisions of the Act do not offend Articles 14, 15
and 21 of the Constitution of India.”
(Emphasis supplied)
39. Danial Latifi Case (supra) has been still holding
the field and being followed by all the Courts in India.
40. In the case on hand, I find that Respondent No.
2/Md Shamshad has also taken plea that he has divorced his
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wife by pronouncing Triple Talaq. Hence, it becomes imperative
to refer to Shayara Bano Vs. Union of India as reported in
(2017) 9 SCC 1, wherein Hon’ble Constitution Bench of Apex
Court has held that the practice of Triple Talaq is arbitrary and
illegal, holding as follows:-
“104. Given the fact that Triple Talaq is instant and
irrevocable, it is obvious that any attempt at reconciliation
between the husband and wife by two arbiters from their
families, which is essential to save the marital tie, cannot
ever take place. Also, as understood by the Privy Council
in Rashid Ahmad v. Anisa Khatun, 1931 SCC OnLine PC
78 : AIR 1932 PC 25, such Triple Talaq is valid even if it
is not for any reasonable cause, which view of the law no
longer holds good after Shamim Ara v. State of U.P.,
(2002) 7 SCC 518. This being the case, it is clear that this
form of talaq is manifestly arbitrary in the sense that the
marital tie can be broken capriciously and whimsically by
a Muslim man without any attempt at reconciliation so as
to save it. This form of talaq must, therefore, be held to be
violative of the fundamental right contained under Article
14 of the Constitution of India. In our opinion, therefore,
the 1937 Act, insofar as it seeks to recognise and enforce
Triple Talaq, is within the meaning of the expression
“laws in force” in Article 13(1) and must be struck down
as being void to the extent that it recognises and enforces
Triple Talaq. Since we have declared Section 2 of the
1937 Act to be void to the extent indicated above on the
narrower ground of it being manifestly arbitrary, we do
not find the need to go into the ground of discrimination in
these cases, as was argued by the learned Attorney
General and those supporting him.
395. In view of the different opinions recorded, by a
majority of 3 : 2, the practice of “Talaq-e-Biddat” —
Triple Talaq is set aside.”
(Emphasis supplied)
41. In the year, 2019, the Muslim Women
(Protection Of Rights On Marriage) Act, 2019 was also
enacted by Parliament. By this Act, the Parliament has declared
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pronouncement of Triple Talaq by a muslim husband upon his
wife as void and illegal. Even punishment has been provided for
such pronouncement and it has been further provided that
despite such pronouncement of Triple Talaq, the muslim wife is
entitled to receive subsistence allowance from her husband and
for her dependent children.
42. Without reference to the recent judgment of
Mohd. Abdul Samad Vs. State of Telangana & Anr. as
reported in (2025) 2 SCC 49, the discussion on the law under
Section 125 Cr.PC would be incomplete. In this judgment,
Hon’ble Division Bench of Apex Court has elaborately
discussed the law of maintenance as provided under Section 125
Cr.PC and other statutory provisions. In this case, Hon’ble Apex
Court has also discussed the implications of the Muslim Women
(Protection Of Rights On Marriage) Act, 2019 and concluded
the law in the following words after scanning all the relevant
judicial precedents:
“115. What emerges from our separate but concurring
judgments are the following conclusions:
115.1. Section 125CrPC applies to all married
women including Muslim married women.
115.2. Section 125CrPC applies to all non-Muslim
divorced women.
115.3. Insofar as divorced Muslim women are
concerned,
115.3.1. Section 125CrPC applies to all such Muslim
women, married and divorced under the Special Marriage
Act in addition to remedies available under the Special
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115.3.2. If Muslim women are married and divorced
under Muslim law then Section 125CrPC as well as the
provisions of the 1986 Act are applicable. Option lies with
the Muslim divorced women to seek remedy under either
of the two laws or both laws. This is because the 1986 Act
is not in derogation of Section 125CrPC but in addition to
the said provision.
115.3.3. If Section 125CrPC is also resorted to by a
divorced Muslim woman, as per the definition under the
1986 Act, then any order passed under the provisions of
the 1986 Act shall be taken into consideration under
Section 127(3)( b )CrPC.
115.4. The 1986 Act could be resorted to by a
divorced Muslim woman, as defined under the said Act,
by filing an application thereunder which could be
disposed of in accordance with the said enactment.
115.5. In case of an illegal divorce as per the
provisions of the 2019 Act then,
115.5.1. Relief under Section 5 of the said Act could
be availed for seeking subsistence allowance or, at the
option of such a Muslim woman, remedy under Section
125CrPC could also be availed
115.5.2. If during the pendency of a petition filed
under Section 125 CrPC, a Muslim woman is “divorced”
then she can take recourse under Section 125CrPC or file
a petition under the 2019 Act.
115.5.3. The provisions of the 2019 Act provide
remedy in addition to and not in derogation of Section
125CrPC”.
(Emphasis supplied)
43. Criteria for determining quantum of maintenance
have been elaborately discussed by the Hon’ble Division Bench
of Supreme Court, observing as follows:
“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.
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
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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
subsistence 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 :
79. In Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 :
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.
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]
81. A careful and just balance must be drawn between all
relevant factors. The test for determination of maintenance
in matrimonial disputes depends on the financial status of
the respondent, and the standard of living that the
applicant was accustomed to in her matrimonial home.
[Chaturbhuj v. Sita Bai, (2008) 2 SCC 316] The
maintenance amount awarded must be reasonable and
realistic, and avoid either of the two extremes i.e.
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maintenance awarded to the wife should neither be so
extravagant which becomes oppressive and unbearable for
the respondent, nor should it be so meagre that it drives
the wife to penury. The sufficiency of the quantum has to
be adjudged so that the wife is able to maintain herself
with reasonable comfort.
82. Section 23 of the HAMA provides statutory guidance
with respect to the criteria for determining the quantum of
maintenance. Sub-section (2) of Section 23 of the HAMA
provides the following factors which may be taken into
consideration : (i) position and status of the parties, (ii)
reasonable wants of the claimant, (iii) if the
petitioner/claimant is living separately, the justification for
the same, (iv) value of the claimant’s property and any
income derived from such property, (v) income from
claimant’s own earning or from any other source.
83. Section 20(2) of the DV Act provides that the
monetary relief granted to the aggrieved woman and/or the
children must be adequate, fair, reasonable, and consistent
with the standard of living to which the aggrieved woman
was accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat Hegde v. Saroj
Hegde, 2007 SCC OnLine Del 622, laid down the
following factors to be considered for determining
maintenance : (SCC OnLine Del para 8)
“1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to
maintain.
5. The amount should aid the applicant to live in a similar
lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education,
medical attendance and treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the
income of the non-applicant when all the sources or
correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is
adjustable against the amount awarded under Section 24
of the Act.”
85. Apart from the aforesaid factors enumerated
hereinabove, certain additional factors would also be
relevant for determining the quantum of maintenance
payable.”
44. In Rajnesh Case (supra), Hon’ble Supreme
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Court has also held as follows:-
“90.4. An able-bodied husband must be presumed to be
capable of earning sufficient money to maintain his wife
and children, and cannot contend that he is not in a
position to earn sufficiently to maintain his family, as held
by the Delhi High Court in Chander Parkash v. Shila
Rani 1968 SCC OnLine Del 52. The onus is on the
husband to establish with necessary material that there are
sufficient grounds to show that he is unable to maintain
the family, and discharge his legal obligations for reasons
beyond his control. If the husband does not disclose the
exact amount of his income, an adverse inference may be
drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan
(2015) 5 SCC 705 cited the judgment in Chander Parkash
v. Shila Rani, 1968 SCC OnLine Del 52 : with approval,
and held that the obligation of the husband to provide
maintenance stands on a higher pedestal than the wife.”
(Emphasis supplied)
45. In view of rival submissions of the parties, it is
also relevant to mention that Section 125(2) Cr.PC confers upon
the Court discretion to award maintenance from the date of
application or from the date of order. However, in the interest of
justice and fair play, maintenance is required to be awarded
from the date of application, because the period during which
the Maintenance Proceeding remains pending is not within the
control of the applicant. Hon’ble Apex Court in the case of
Rajnesh (supra) has issued general direction to the Courts
concerned to award maintenance from the date of application
and not from the date of order.
46. In view of submission of the parties, it would be
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also pertinent to see what is adultery. Adultery is an offence
against one’s spouse. If a married person establishes sexual
relationship with someone other than his/her spouse, he/she
commits adultery. Under Section 125 Cr.PC wife/petitioner is
disqualified for getting maintenance from her husband if she is
living in adultery.
47. Moreover, “living in adultery” is distinct from
“committing adultery”. “Living in adultery” denotes a
continuous course of conduct and not isolated acts of
immorality. One or two lapses from virtues would be acts of
adultery but would be quite insufficient to show that the woman
was “living in adultery”. A mere lapse, whether it is one or two,
and a return back to a normal life can not be said to be living in
adultery. If the lapse is continued and followed up by a further
adulterous life, the woman can be said to be “living in adultery”.
In this regard, one may refer to the following judicial
precedents:
(i) Hitesh Deka Vs. Jinu Deka
2025 SCC OnLine Gau 259
(ii)Sukhdev Pakharwal Vs. Rekha Okhale
2018 SCC OnLine MP 1687
(iii) Ashok Vs. Anita
2011 SCC OnLine MP 2249
(iv) Sandha Vs. Narayanan
1999 SCC OnLine Ker 64
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1997 SCC OnLine Bom 264
Findings and Order of this Court in the Present Case
48. Coming back to the case on hand, I find that
Respondent No. 2/Md. Shamshad has pleaded that he has
divorced his wife/Bulbul Khatoon, who is petitioner No. 1
herein, by pronouncing Triple Talaq in the presence of one
witness in one sitting. He has also adduced evidence in support
of such pleadings. However, there is no claim that he has paid a
single paisa to his wife during iddat period towards her
maintenance, let alone making any provision for her life. It is
also admitted that he has not paid even Dainmehar to his wife.
In such situation, in view of the law discussed above, Triple
Talaq is illegal and invalid in view of ruling of Hon’ble Apex
Court in Shayara Bano Case (supra), wherein Triple Talaq has
been held to be arbitrary and illegal. The Muslim Women
(Protection Of Rights On Marriage) Act, 2019 also declares
Triple Talaq void and illegal. Hence, Bulbul Khatoon cannot be
held to be a divorced wife. There is also no pleading or evidence
on record to prove that Bulbul Khatoon has been divorced by
Md. Shamshad by any other legal mode.
49. Even if, it is presumed for a moment that
petitioner No. 1/Bulbul Khatoon is divorced, the liability of Md.
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Shamshad to maintain his former wife is still there, because to
escape from liability to pay monthly maintenance to his wife, he
was required not only to pay maintenance to his wife not during
iddat period, he was also required to make provision for life of
his former wife during iddat period. But nothing of the sort has
been done by Md. Shamshad in favour of his former wife.
Admittedly, even Dainmehar has not been paid by him to his
former wife.
50. Now, question is whether the petitioner
No.1/Bulbul Khatoon fulfills other conditions to get
maintenance under Section 125 Cr.PC.
51. From perusal of the pleadings and evidence on
record, I find that Bulbul Khatoon has left her matrimonial
home, but there are rival claims of both the parties regarding the
reason behind leaving the matrimonial home by Bulbul
Khatoon. Bulbul Khatoon in her evidence has deposed that on
account of her failure to meet unlawful demand of additional
dowry by her husband/Md. Shamshad, she was ousted from the
matrimonial home by her husband on 17.07.2017 along with her
newly born child and hence, she has been living at her parental
home since then and she has also filed one criminal complaint in
this regard against her husband which is still pending. Such
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evidence could not be demolished by the Respondent No. 2 in
cross-examination, nor is any evidence on the part of
Respondent No. 2 to prove that Bulbul Khatoon had been living
in adultery and she had left her matrimonial home to lead
adulterous life with Md. Tarikat. Nobody has seen Bulbul
Khatoon leaving the matrimonial home in the company of Md.
Tarikat. There is also no evidence that she has run away from
her parental home in the company of Md. Tarikat.
52.There is also nothing on record to show that any
criminal complaint has been filed by Md. Shamshad against Md.
Tarikat in regard to his alleged adulterous life with his
wife/Bulbul Khatoon. As per the allegation of Md. Shamshad,
his wife/Bulbul Khatoon has been living in adulterous life with
Md. Tarikat since much prior to the year, 2018, when Section
497 IPC providing for punishment for adultery was declared
unconstitutional in Josehph Shine Vs. Union of India as
reported in (2019) 3 SCC 39.
53. There is also no cogent evidence on record to
show that Bulbul Khatoon is living with Md. Tarikat, nor
anybody is a direct witness to adulterous life of Bulbul Khatoon
with Md. Tarikat. No witness, examined on behalf of Md.
Shamshad, has given any date, time and place of such
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adulterous relationship of Bulbul Khatoon with Md. Tarikat.
54. On the other hand, there is sufficient evidence on
record on behalf of Bulbul Khatoon that she has been living at
her parental home along with her minor son.
55. From the perusal of the evidence, it transpires that
Md. Shamshad heavily relies upon the panchayat held in regard
to leaving of Bulbul Khatoon from her matrimonial home. But
this panchayat, at most, has dealt with the issue of leaving of
matrimonial home by Bulbul Khatoon. It, however, does not
prove that Bulbul Khatoon has been living in adultery with Md.
Tarikat.
56. Hence, I find that Respondent No. 2/Md.
Shamshad has failed to prove that Bulbul Khatoon has been
living in adulterous life with Md. Tarikat.
57. It is also not a case of Md. Shamshad that he got
any decree of restitution against his wife/Bulbul Khatoon, nor
has he claimed that he has been acquitted in the criminal
complaint filed by Bulbul Khatoon.
58. As such, I find that Bulbul Khatoon has left the
matrimonial home on account of ill-treatment by Md. Shamshad
due to her failure to meet his illegal demand of dowry and
hence, she is constrained to live at her maike along with her
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minor son.
59. As such, Bulbul Khatoon is entitled to get
maintenance from her husband/Md. Shamshad, because Bulbul
Khatoon has no means to maintain herself, whereas Md.
Shamshad is an able-bodied person and doing the work of
laborer.
60. However, I find that learned Family Court by the
impugned judgment/order has denied maintenance to Bulbul
Khatoon on account of his finding that she has been living in
adultery with Md. Tarikat, whereas there is no such cogent
evidence on record. As such, the findings of learned Family
Court is based on no evidence or perverse appreciation of
evidence. Accordingly, the impugned order is not sustainable in
the eye of law and hence, it is set aside to this extent and it is
held that the petitioner No. 1/Bulbul Khatoon is also entitled to
get maintenance from her husband/Respondent No. 2 herein.
61. However, coming to the quantum of maintenance
payable to Bulbul Khatoon and her minor son/Danish Raza @
Rahul, I find that as per the evidence on record, Md. Shamshad
earns as a laborer. I also find that Md. Shamshad has entered
into second marriage with one Kajal Perween and one minor
daughter born out from the second marriage. As such, Md.
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Shamshad has four dependents upon him viz., Bulbul Khatoon
and her son/Danish Raza @ Rahul and second wife of Md.
Shamshad viz., Kajal Perween and her minor daughter born out
of the wedlock and learned Family Court has also directed Md.
Shamshad to pay Rs. 4,000/- per month to Danish Raza @
Rahul towards his maintenance. In view of such facts and
circumstances, payment of Rs. 2,000/- per month to his
wife/Bulbul Khatoon by Md. Shamshad towards her
maintenance from the date of filing of maintenance petition
would meet the ends of justice. But, there is no scope to enhance
the quantum of maintenance payable by Md. Shamshad to his
son/Danish Raza @ Rahul.
62. However, Md. Shamshad is liable to pay
maintenance to his son Danish Raza @ Rahul at the rate of Rs.
4,000/- per month from the date of filing of the maintenance
petition i.e. 30.10.2017 in view of Section 125 Cr.PC.
63. The present petition is allowed, accordingly.
64. Interlocutory applications, if any, stand disposed
of. LCR be sent back to the Court concerned along with a copy
of this order forthwith.
65. Learned Registrar General is directed to circulate
a copy of this judgment/order amongst all the Family Courts of
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Bihar, besides sending a copy of it to Bihar Judicial Academy
for discussion in the training programmes for the Presiding
Officers of the Family Courts.
(Jitendra Kumar, J)
shoaib/ravi shankar
S. Ali
AFR/NAFR A.F.R.
CAV DATE 26.06.2025.
Uploading Date 07.07.2025.
Transmission Date 07.07.2025.