Patna High Court
Md Murshid Alam vs The State Of Bihar on 30 August, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.657 of 2022
Arising Out of PS. Case No.- Year-0 Thana- District- Bhagalpur
======================================================
Md Murshid Alam, Son of Md. Kousar Ali, Resident of Village - Kamarganj,
P.S.- Sultanganj, Distt.- Bhagalpur.
... ... Petitioner
Versus
1. The State of Bihar
2. Nazia Shaheen, D/o Shahjad, Resident of Village - Topkhana Bazar, Munger
Sadar, P.S.- Kotwali, Distt.- Munger.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Ranjan Kumar Jha, Advocate
Mr. Rana Pratap Singh, Advocate
Mr. Vikas Kumar, Advocate
For the State : Mr. Anuj Kumar Srivastava, APP
For the O.P. No.2 : Md. Najmul Hodda, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 30.08.2025
Introduction
The present Criminal Revisions Petition has been
preferred by the Petitioner against the impugned Final Order
dated 20.03.2021 passed by learned Principal Judge Family
Court, Bhagalpur in Maintenance Case No. 15 of 2018, whereby
learned Principal Judge has directed the Petitioner herein to pay
Rs.7,000/- per month to his wife, who is the Opposite Party
No.2 herein, towards her maintenance from the date of the order
i.e 20.03.2021.
The case of Nazia Shaheen, (Petitioner before the
Family Court and O.P. No.2 herein)
2. Nazia Shaheen, who was the Petitioner in the
maintenance case before the Family Court and is Opposite Party
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No.2 herein, was married to Md. Murshid Alam on 01.12.2010
as per Muslim rites and customs and subsequent to the marriage,
she joined the matrimonial home of her husband. However, just
after few weeks, she was subjected to torturing by her husband
and his family members, and hence, she left her sasural and
started living at her maike. It was also claimed by Nazia
Shaheen that she is a pardanashi lady and she has no source of
income, but her husband Md. Murshid Alam is not paying any
maintenance to her from the year 2011, whereas he is a man of
wealth and income, working in a private company at Singapore
and she has claimed maintenance @ Rs.15,000/- per month
from her husband Md. Murshid Alam.
The case of Md. Murshid Alam, (Opposite Party before the
Family Court and Petitioner herein)
3. Md. Murshid Alam, who was the Opposite Party before
the Family Court and is the Petitioner herein, appeared before
the Family Court on notice and filed his objection by way of
written statement, in which he has admitted his marriage with
Nazia Shaheen. However, he has denied that he ever subjected
his wife to any cruelty. He has further claimed that just after
three or four days of her stay at his matrimonial home, she left
his matrimonial home and thereafter, she used to come to his
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home off and on. It was also claimed by him that his wife, Nazia
Shaheen is not a pardanashi lady and she moves everywhere
including public places like Courts, markets. She also moves
with unknown persons at different times, which casts cloud on
her character and she wants to live some luxurious life as per
her own accord. She is a lady of independent nature and she
never lives in guardianship of her parents or husband, and
hence, she had left the matrimonial home. She was also not
satisfied with general life of a middle class family.
4. As per the further case of Md. Murshid Alam, he has
filed one Matrimonial Case bearing No. 188 of 2013 for
restitution of conjugal rights against his wife, Nazia Shaheen
before Family Court, in which compromise was reached at
between them, as per which his wife was to receive a sum of
Rs.1,00,000/- towards her alimony/den mohar and expenses of
iddat and thereafter, he was not required to pay anything to her
in future. In pursuance to the compromise, he has also paid
Rs.1,00,000/- to her, and hence, the matrimonial tie between
them came to an end. Hence, she is not entitled to get any
maintenance and the maintenance petition was misconceived.
He has also stated that one false Criminal Complaint Case
bearing No. 138 of 2015 was filed by her in the Court of learned
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A.C.J.M.-IV, Bhagalpur, which is pending. He has claimed that
he has other liabilities like old ailing mother and unemployed
brother.
Dispute between the parties
5. As per the pleading of the parties, the marriage between
the parties is admitted. However, there is no claim of the
husband, Md. Murshid Alam that his wife is earning, nor has he
claimed that he has no source of income, nor has he disputed his
employment. However, he has claimed that he has other
liabilities-ailing mother and unemployed brother.
6. However, there is dispute between them regarding
reason of the wife to live separately. As per the wife, she left her
matrimonial home because she was subjected to cruelty by her
husband and his family members, whereas as per the
husband/Md. Murshid Alam, his wife left his matrimonial home
on her own without any reason.
7. There is also dispute regarding the subsistence of the
marriage between them. As per the husband, Md. Murshid
Alam, the marriage has come to an end as a consequence of
compromise between them and payment of Rs.1,00,000/- to his
wife, Nazia Shaheen towards her alimony, Den Mohar and
maintenance for the iddat period, whereas as per his wife/ Nazia
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Shaheen, the marriage is still subsisting.
Evidence adduced by Nazia Shaheen
before the Family Court
8. During the trial, Nazia Shaheen has examined four
witnesses, including herself as P.W.-1. Naushad Alam has been
examined as P.W.-2, Sanjeev Kumar Raj as P.W.-3 and Jahan
Ara Bano as P.W.-4.
9. In her examination-in-chief, Nazia Shaheen, P.W.-1
has reiterated her statement as made in the maintenance petition.
To Court question, she has deposed that her husband, Md.
Murshid Alam, is working in Merchant Navy, having monthly
salary of Rs.1,00,000/- up to 2015. A restitution petition was
filed by her husband but the same has been compromised. The
other witnesses have also supported the case of the wife/ Nazia
Shaheen.
Evidence of Md. Murshid Alam
adduced before the Family Court
10. Md. Murshid Alam has however not examined any
witness in support of his case. But, he has filed the certified
copy of an affidavit of Nazia Shaheen and the compromise
petition filed in the Matrimonial Case No.188 of 2013, but the
same has not been brought on record by way of making them
exhibits.
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Findings of the Family Court
11. On the basis of the evidence and other materials on
record and hearing submissions of the parties, learned Family
Court did not accept the claim of the husband/ Md. Murshid
Alam that marriage between him and his wife/Nazia Shaheen
has been dissolved by mutual agreement. It found that the claim
of the husband regarding dissolution of marriage between the
parties was based on the compromise petition, but the same was
disputed by his wife/Nazia Shaheen, claiming that her signature
on the compromise petition was fraudulently taken by her
husband. Learned Court also found that there was no evidence
adduced on behalf of the husband to prove his claim.
12. Learned Family Court also found that the
husband/Murshid Alam works in a company at Singapore
earning Rs.1,00,000/- per month, whereas his wife/Nazia
Shaheen has no source of income.
13. It was also found by learned Family Court that Md.
Murshid Alam is neglecting his wife/Nazia Shaheen to maintain
her without sufficient reason.
14. Hence, learned Family Court directed Md. Murshid
Alam to pay Rs.7,000/- to his wife/Nazia Shaheen per month
towards her maintenance from the date of the order i.e. on
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20.03.2021
.
Submissions on behalf of the
Petitioner herein/Md. Murshid Alam
15. Learned counsel for the Petitioner, Md. Murshid Alam
submits that the impugned order is not sustainable in the eye of
law on account of erroneous appreciation of law and facts,
allowing the maintenance petition filed by his divorced wife,
Nazia Shaheen and directing him to pay monthly maintenance
to her @ Rs.7,000/-.
16. He further submits that the marriage between him and
Nazia Shaheen stands dissolved by mutual agreement
(Mobarat) and in pursuance of the mutual agreement regarding
divorce, he has already paid Rs.1,00,000/- to his divorced wife
towards her alimony, Den Mohar and maintenance for the iddat
period. Thereafter, as per learned counsel for the Petitioner, the
Petitioner Md. Murshid Alam has no legal liability towards his
divorced wife for any maintenance.
Submissions on behalf of the State and
Opposite Party No.2 Nazia Shaheen
17. Learned APP for the State as well as learned counsel
for the Opposite Party No.2/Nazia Shaheen defend the
impugned order submitting that there is no error or illegality or
impropriety in the impugned order, and, hence, there is no
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requirement of any interference by this Court in it.
18. They further submit that the marriage between Md.
Murshid Alam and Nazia Shaheen is still subsisting and Md.
Murshid Alam is neglecting his wife to maintain his wife
without any sufficient reason. Hence, learned Family Court has
rightly directed Md. Murshid Alam to pay his wife maintenance
@ Rs.7,000/ per month-
Extent and Scope of Revision &
Jurisdiction of the High Court
19. 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
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.
20. However, the exercise of revisional jurisdiction by the
High Court is discretionary in nature to be applied judiciously in
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the interest of justice.
21. 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 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
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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.
22. However, it has been cautioned by Hon’ble Supreme
Court that the aforesaid kinds of situations are illustrative and
not exhaustive.
23. In regard to revisional jurisdiction, one may refer to
the following judicial precedents:
(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
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(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 204Section 125 Cr.PC
24. Coming to the case on hand, I find that liability of
Muslim husband to pay maintenance to his divorced wife under
Section 125 Cr.PC is the question of law which is involved in
the case. Hence, it is imperative to discuss the statutory
provisions of Section 125 Cr.PC and the relevant case laws.
25. 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
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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
interim maintenance and expenses for proceeding shall be
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
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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)
26. As such, as per Section 125 Cr.PC, wife is entitled to
get maintenance from her husband, if she is living separately
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.
27. 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.
28. 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
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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.
29. 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
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 his divorced wife.
30. 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
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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
“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
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(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)
31. Danial Latifi Case (supra) has been still holding the
field and being followed by all the Courts in India.
32. 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.
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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
Marriage Act.
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 )Cr.PC.
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 Cr.PC, 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)
33. Criteria for determining quantum of maintenance have
been elaborately discussed by Hon’ble Apex Court in Rajnesh
Vs. Neha & Anr., (2021) 2 SCC 324, observing as follows:
“77. The objective of granting interim/permanent alimony
is to ensure that the dependent spouse is not reduced to
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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
educated and professionally qualified; whether the
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
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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.
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 Cr.PC is
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
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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.”
34. In Rajnesh Case (supra), Hon’ble Supreme
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)
Findings and Orders of this Court in the Present Case
35. Coming back to the case on hand, I find that the
Petitioner herein, Md. Murshid Alam is denying his liability to
maintain his wife, Nazia Shaheen on the ground that the
marriage between him and his wife has come to an end by way
of Mobarat (divorce by mutual agreement). His claim is based
on the compromise petition filed by the parties in the
Matrimonial Suit bearing no. 188 of 2013 filed by husband/Md.
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
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Murshid Alam for restitution of conjugal rights.
36. Here, it becomes imperative to find what is
divorce by mutual agreement under Muslim Law. Khula and
Mubarat are two modes of divorce by mutual agreement under
Muslim Law. Here, it would be profitable to refer to Mohd. Arif
Ali v. Afsarunnisa, 2025 SCC OnLine TS 368, where High
Court of Telangana has observed as follows:
“11. ‘Khula’ literally translates to relinquishment in
Arabic. It is a mode of dissolution of marriage when the
wife does not want to continue with the marital tie and can
settle the matter privately by consulting a Mufti (Jurist
Consult) of her School. The Mufti gives an advisory
decision (Fatwa) based on the Shariat of his School. In a
Khula divorce, the wife proposes to her husband for
dissolution of marriage which may or may not be
accompanied by an offer on the part of the wife to give
something in return. The wife may however offer to
relinquish her claim to Mahr (Dower) as an option
available to her but which is not a pre-requisite for a
Khula divorce. When approached by the wife, the Mufti
gives a Fatwa/advisory decision based on Shariat of his
School. However, if the matter cannot be settled privately
and is carried to litigation, the Judge (Qazi) is required to
deliver a judgment (Qaza) based upon the Shariat :
Masroor Ahmed v. State (NCT of Delhi) (2008) 103 DRJ
137.
12. The difference between a Khula divorce and a
Mubaraat divorce is that the former is initiated by the wife
whereas both spouses desire a separation in a Mubaraat
divorce. In essence, a wife’s right to Khula is parallel to a
husband’s right to Talaq and both forms of divorce are
unconditional.”
37. Here, it would be also relevant to refer to Hasina
Bano v. Mohd. Ehsan, 2024 SCC OnLine All 5194, wherein
Allahabad High Court has held as follows:
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
22/26“17. The extra-judicial divorce by way of mubara’at
is complete, the moment spouses enter into a lawful
mutual agreement to put an end to their matrimonial tie. In
the case of mubara’at, if the Court is prima-facie satisfied
that the parties have duly entered into a mubara’at
agreement, it shall endorse the same and declare the status
of the parties as divorced by passing an order to that effect
as provided under Section 7 of the Family Courts Act,
1984. Needless to observe that it is always open to the
parties to challenge the validity of the aforesaid divorce in
accordance with law before the competent forum and in
the event where the divorce itself is held legally
unsustainable by competent authority the declaration
endorsing the extra-judicial divorce made under Section 7
of the Family Courts Act, 1984 shall abide the said
decision.”
38. Again it would be profitable to refer to Asbi K.N.
v. Hashim M.U., 2021 SCC OnLine Ker 3945, wherein Kerala
High Court has held as follows:
“5. The unilateral extrajudicial divorce under Muslim
Personal law is complete when either of the spouse
pronounce/declare talaq, talaq-e-tafweez or khula, as the
case may be, in accordance with Muslim Personal Law. So
also extrajudicial divorce by mubaarat mode is complete
as and when both spouses enter into mutual agreement.
The seal of the Court is not necessary to the validity of
any of these modes of extra judicial divorce. The
endorsement of extrajudicial divorce and consequential
declaration of the status of the parties by the Family Court
invoking S. 7(d) of the Act is contemplated only to have a
public record of the extrajudicial divorce. Hence, detailed
enquiry is neither essential nor desirable in a proceeding
initiated by either of the parties to endorse an extrajudicial
divorce and to declare the marital status. The Family
Court has to simply ascertain whether a valid
pronouncement/declaration of talaq or khula was made
and it was preceded by effective attempt of conciliation. In
the case of khula, it has to be further ascertained whether
there was an offer by the wife to return the “dower”. It
could be ascertained by perusal of the recitals in talaq
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
23/26nama/khula nama or its communication (if it is in writing)
or by recording the statement of the parties. No further
enquiry as in the case of an adversarial litigation like chief
examination and cross-examination of the parties are not
at all contemplated in such a proceedings. If the Court is
prima facie satisfied that there was valid pronouncement
of talaq/khula/talaq-e-tafweez, it shall endorse the same
and declare the status of the parties. In the case of
mubaarat, if the Court is prima facie satisfied that
mubaarat agreement has been executed and signed by both
parties, it shall endorse the same and declare the status of
the parties. The Court shall pass formal order declaring the
marital status without any delay. If any of the parties want
to challenge the extrajudicial divorce by talaq, khula,
mubaarat or talaq-e-tafweez mode, he/she is free to
challenge the same in accordance with law in appropriate
forum. The declaration granted by the Family Court u/s
7(d) endorsing the extrajudicial divorce shall be subject to
the final outcome of such proceedings, if
any……………………….”
39. As such, it emerges that under Muslim Law,
marriage may be dissolved by the parties by mutual agreement.
However, if there is any dispute between the parties regarding
mutual agreement for dissolution of their marriage, the marital
status of the parties has to be decided by the Family Court
which is competent court in this regard under Section 7 of the
Family Courts Act, 1984. The disputed question of fact
regarding marital status of the parties cannot be decided in a
proceeding under Section 125 of the Cr.PC which is summary in
nature and it is not a case of the petitioner/Md. Murshid Alam
that he has got any decree of competent Court to the effect that
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
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his marriage with Nazia Shaheen has been dissolved by
Mubaraat on the basis of mutual agreement, whereas such
decree was necessary in view of the stand of his wife/Nazia
Shaheen who has claimed that her signature on the compromise
petition was fraudulently obtained by her husband/Md. Murshid
Alam.
40. Here it would be also pertinent to point out that except
the copy of compromise petition filed by Md. Murshid Alam on
record, there is no any other evidence to prove that marriage
between Md. Murshid Alam and Nazia Shaheen has been
dissolved by mutual agreement. Even the compromise petition
has not been brought on record by way of exhibit. It was simply
filed, and hence, his wife/Nazia Shaheen could not get any
opportunity to cross-examine on the point of genuineness of the
compromise petition. In such situation, the compromise petition
has hardly any evidentiary value in the eye of law, and hence, it
cannot be the basis for finding of the Court that marriage
between Md. Murshid Alam and Naziya Shaheen has been
dissolved by mutual agreement.
41. As such, I find that marriage between Md.
Murshid Alam and Nazia Shaheen is subsisting as of now for
want of any evidence to the contrary and any decree to the effect
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
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of divorce between Md. Murshid Alam and Nazia Shaheen by
mutual agreement.
42. I further find that even if it is presumed for the
sake of argument for a moment that Md. Murshid Alam has
divorced his wife, even then, Nazia Shaheen would be entitled
to get maintenance from her ex-husband as a divorced wife,
because it is not a case of Md. Murshid Alam that his divorced
wife has remarried or he has made a reasonable and fair
provision for future of his divorced wife during the iddat period.
The only claim of Md. Murshid Alam is that subsequent to the
mutual agreement for divorce between him and his wife, he paid
Rs.1,00,000/- to his divorced wife towards permanent alimony,
den mohar and expenses for the iddat period. A reasonable and
fair provision includes provision for her residence, food,
clothes and other articles. Here it would be also pertinent to
point out that the amount of Rs.1,00,000/- paid by Md. Murshid
Alam to his wife includes even den mohar, which is even
otherwise entitlement of his wife to receive.
43. Considering the aforesaid facts and
circumstances, I find that there is no illegality or perversity in
appreciation of evidence committed by learned Court below
while passing the impugned order.
Patna High Court CR. REV. No.657 of 2022 dt.30-08-2025
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44. Hence, the impugned order is upheld,
dismissing the present criminal revision petition filed by the
petitioner/Md. Murshid Alam for want of any substance.
45. LCR be sent to the court below forthwith, along
with a copy of this Judgment.
(Jitendra Kumar, J.)
Chandan/
Ravishankar/-
AFR/NAFR A.F.R CAV DATE 29.07.2025 Uploading Date 30.08.2025 Transmission Date 30.08.2025
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