By:- Tejas Patel
|In The Supreme Court Of India
|Name of the case:
|Shamima Farooqui vs shahid khan
|Air 2015 sc 2025
|Date of the case:
|6th april 2015
|Deepak mishra and prafulla c. Pant
|Statutes/ constitution involved:
|Article 39a constitution of India, section 7 family courts act, 1984, section 125 of code of criminal procedure (crpc)
There are certain cases of matrimonial disputes regarding the torture, certain demand from the family and other kinds of disputes which leads to divorce. This type of cases is entertained in the Family Court. As in India, marriage is considered as the holy thing but as we go forward, certain disputes arises in the marriage in which there are certain possibilities that the husband and wife may get divorced or there can be a settlement between husband and wife which results in continuing their marriage.
The present case is regarding the marriage dispute and deciding the maintenance amount which is to be given to the wife.
In the ancient times, there was the superiority of the males where the females do not have their own rights and opinion about anything and they are not allowed to go outside and do the work they like when a girl marries a boy after that her whole life was spent working in the house and following the instructions of her husband. The earlier women did not know about the personal rights and they were suffering by the males of the family and got tortured, still, they cannot refuse to follow them because at that time the females were not aware of the basic rights of a person which should not be violated by any of the people.
But in today’s life, the scenario is different, the people are aware now and they know about their basic rights and duties which they must follow and if someone violates their rights then they know how to proceed. In today’s world, the females are becoming strong and independent and there are no old rituals or limitations which hold the females back in the house and suffer. There are several female activists which help other females who are suffering from domestic violence or any kind of problem.
The present case is regarding the domestic violence and extra marital affair.
FACTS OF THE CASE:
The facts of the case are that the appellant (Shamima Farooqui) and the respondent (Shahid Khan) were married on 26.04.1992 but after the marriage, the husband was demanding the car from her wife’s family and during the time when she is living with his husband, her husband refused her to talk to anyone and pressurize her for the car and started harassing her. One day she was compelled by her husband to stay at his parent’s house for three months, but her husband never came back to take her home. One day she goes back to her husband’s house in the hope that everything will be fine, and the love and affection will be restored but she was wrong.
When she came back to her husband’s house, she again gets tortured and harassed for the demand of a car from her parents, she was mistreated and beaten by her husband, she also found out that her husband has an extramarital affair with women and he plans to marry her. This was the limit for her, and she calls her parents to take her with them. Her parents came and took her to their house in Lucknow. After that, she filed an application for a grant of maintenance from her husband. The maintenance set by her was Rs. 4000/- per month as her husband was working on the post of Nayak in the Army and getting a salary of Rs. 10000/- and other perks.
- Whether the High Court’s order of reducing the maintenance allowance after the retirement of the respondent was sustainable?
- Whether Shahid Khan is liable for an extramarital affair?
ARGUMENTS OF THE PETITIONER:
- Petitioner argued that she was been harassed by her husband because her family did not fulfill the demand of a car for her husband.
- She also argued that while she was at her parental home for three months after that when she came back to her matrimonial house, she noticed that her husband has an extramarital affair and he was planning to marry her.
- She also argued that she was not aware of the divorce which was given by her husband on 18.06.1997 and hasn’t received any Mehar from her husband.
- She also argued that, as her husband was working on the post of Nayak in the Army and earning around Rs. 17,654/- she should be getting Rs. 4000/- per month as her allowance money.
ARGUMENTS OF THE RESPONDANT:
- Respondent argued that he has given divorce earlier on 18.06.1997 and claims that he has given the Mehar amount to her when this divorce was called.
- He also argued that he has not harassed her and not even pressurize her for any demand.
This case includes several provisions: –
- Article 39A of the Indian Constitution-
Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. Articles 14 and 22(1) of the Constitution also make it obligatory for the State to ensure equality before the law and a legal system that promotes justice based on equal opportunity to all. In the year 1987, the Legal Services Authorities Act was enacted by the Parliament which came into force on 9th November 1995 to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society based on equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate the implementation of legal aid programs and to lay down policies and principles for making legal services available under the Act.
- Section 7 Family Courts Act, 1984-
- Subject to the other provisions of this Act, a Family Court shall- -(1) Subject to the other provisions of this Act, a Family Court shall-“
- Have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of nature referred to in the explanation; and
- Be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation. -The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely: –
- A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
- A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person.
- A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.
- A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship.
- A suit or proceeding for a declaration as to the legitimacy of any person.
- A suit or proceeding for maintenance.
- A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
- Subject to the other provisions of this Act, a Family Court shall also have and exercise-
- the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children, and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
- such other jurisdiction as may be conferred on it by any other enactment.
- Section 125 of code of criminal procedure-
Order for maintenance of wives, children, and parents.
- If any person having sufficient means neglects or refuses to maintain-
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or 1. Subs. by Act 45 of 1978, s. 12, for” Chief Judicial Magistrate” (w. e. f, 18- 12- 1978).
- 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
- 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 not exceeding five hundred rupees in the whole, 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. Explanation. – For the purposes of this Chapter, –
- ” 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.
- ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
- Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
- If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issued 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 allowances 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
The 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 just ground for his wife’s refusal to live with him.
- No Wife shall be entitled to receive an allowance 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.
- 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.
- The judgement was given by Justice Deepak Mishra that, in today’s climate, it’s impossible to imagine the respondent being able to make ends meet on less than Rs. 2,000 a month. A woman who is forced to leave the marital home should not be made to feel as if she has dropped out of favours and is desperately looking for food.
- According to the constitution, she can live in the same way as she would have in her husband’s home. If the woman is found to be entitled to maintenance under s. 125 of the Code of Criminal Procedure, it must be sufficient for her to remain with peace as she would have in her matrimonial home.
- The husband will make an argument that he does not have the financial resources to pay because he is unemployed, or his company is failing. These are merely flimsy justifications that can never be accepted in a court of law. It is the husband’s responsibility to help his child.
- He cannot say that he is unable to support his wife due to financial difficulties if he is capable of earning. There was no need to cut the upkeep by half simply because the husband had retired. It was not such a large sum of money that the wife deserved a reduction. It just represents a lack of mental application. Hence, this court was unable to sustain the said order.
In the present case, it was based on the maintenance amount which is to be given to the wife from the husband as they are getting divorced. In this, the petitioner has demanded the amount of Rs. 4000/- per month as the alimony because his husband was working as a Nayak in the Army and has a salary of Rs. 17,654/-, but he retires on 01.04.2012 and due to the reduction in the salary, his pension was reduced so the court held that the maintenance amount should also be reduced to Rs. 2000/-. Later the decision made by the court was, the wife is entitled to get the alimony of Rs. 2000/- per month. In this, if they had kids then the first person who is entitled to get custody is the mother of the child.
The concept behind this decision was that the maintenance amount which is given to the wife is about 25% of the husband’s net monthly salary or 1/5th or 1/3rd of the husband’s net worth which is the benchmark set by the Supreme Court of India. Because that is the minimum amount for a person to survive for a month. According to the Supreme Court, the alimony amount is the only help for the divorced women if she is not earning money and the amount is decided as per the basic needs of women for a month.
- Code of Criminal Procedure (section 125)
- Family Courts Act, 1984 (section 7)
- Indian Constitution (Article 39A)