ABDUL HUSSAIN KADRI Vs. NISAR FATIMAH
LAWS(HPH)-1997-8-10
HIGH COURT OF HIMACHAL PRADESH
Decided on August 12,1997

Abdul Hussain Kadri Appellant
VERSUS
Nisar Fatimah Respondents


Referred Judgements :-

NOOR SABA KHATOON V. MOHD. QUASIM [REFERRED TO]
SECRETARY TAMIL NADU WAKF BOARD VS. SYED FATIMA NACHI [REFERRED TO]


JUDGEMENT

SURINDER SARUP,J. - (1.)THIS judgment shall dispose of two revision petitions filed by the husband and wife respectively, and both of them are directed against the same impugned order of the learned Addl. Sessions Judge, Sirmour as common question of law and facts arise.
(2.)BRIEFLY the facts are that Nisar Fatima, wife, filed an application under Section 125, Code of Criminal Procedure for maintenance for herself as well as her minor children Kaushal Ali, Abida Khatna and Abdul Quaume. It has been pleaded by her that she had married Abdul Hussain in the year 1973 according to Muslim rites. Above mentioned three minor children were born from this wedlock. She is looking after them at present. The husband had left the company of the wife and minor children in February; 1990 and started living with his brothers. He also refused to maintain them. The matter was taken to the Panchayat, but the respondent did not agree. He is in the service of the Government of Himachal Pradesh as Compounder posted at Majra in Ayurvedic Dispensary and is getting a salary of Rs. 3,000/ per month. According to the wife, her requirement as well as that of her three minor children was Rs. 1500/ per month for their maintenance.
In his reply, the respondent admitted the marriage as also the fact that three minors were his children from Nisar Fatima. According to him on 4.4.1990, the wife alongwith her family members gave severe beatings to him and forcibly turned him out from the house situated in Upper Gulabgarh, Tahsil Paonta Sahib. His articles and cash were also snatched. Thereafter he lodged the report with the police at Paonta Sahib on the same day. Since that date, he is living with his brothers in lower Gulab Garh. Subsequently, because of the conduct and behaviour of Nisar Fatima and her father, the respondent is alleged to have divorced her on 7.5.1990. He admitted that he is in Government service. According to him the wife and the minor children are living separately without any cause and they are not entitled to maintenance. Moreover, as the wife Nisar Fatima is a divorced lady, she is not entitled to get any maintenance from the husband beyond the Iddat period.

(3.)THE Court of Shri R.K. Sharma, Judicial Magistrate 1st Class, Court No. II, Paonta Sahib, District Sirmour which was seized of the matter after going through the pleadings of the parties and the evidence led by them came to the conclusion that Nisar Fatima being divorced wife, is not entitled to get maintenance under Section 125, Code of Criminal Procedure, but he allowed maintenance at the rate of Rs. 350/ per month to the minor children. This order was passed by him on 16.4.1991.


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