Karnataka High Court
Dr Ayub Ahmed vs Smt Qurrath Sadiya on 8 August, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO. 23674/2018
C/W
WRIT PETITION N O. 49243/2017 (GM-FC)
Between:
Dr. Ayub Ahmed,
S/o Abdul Haq,
Aged about 55 years,
Working as Senior Specialist (ENT)
ESI Hospital (Dispensary), Gokul Road,
Hunsur Town,
Mysuru-571105
Mysuru District. ...Common Petitioner
(By Sri.R.S. Ravi,Advocate)
And:
1. Smt. Qurrath Sadiya,
Aged about 36 years,
W/o Ayub Ahmed,
D/o Amanulla Khan.
2. Master Haseeb Ahmed Danish,
Aged about 18 years
... Common Respondents
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Both are residing at Door No.77A,
6th Cross, 3rd Main,
1st Stage, Brindavana Extension,
Mysuru-60.
(Now residing at No.630, 2nd Main,
14th Cross, B.M. Sri Nagar,
Mysuru - 570016)
(By Sri.K.A. Chandrashekara, Advocate for R1)
These writ petitions are filed under Article 227 of
the Constitution of India to quash the order dated
22.03.2018 made on the application for interim
maintenance filed by the respondents before the Prl.
Judge, Family Court, Mysuru in C.Misc. 467/2016.
These writ petitions coming on for Preliminary
Hearing this day, the court made the following:
ORDER
Though these writ petitions are listed for preliminary hearing by consent of learned counsel appearing for the parties, these matters are taken up for final disposal.
2. Short point that arises for consideration is:
"Whether C.Mis.No.467/2016 filed by first respondent herein (wife) before the jurisdictional Family Court invoking -3- Section 125 of Cr.P.C is maintainable or not?"
3. The contract of marriage between petitioner and first respondent was entered into on 14.02.1999, which is said to have been ended in Talaqnama on 24.10.2011 before the Islamic Court, Darul Uloom Siddiquia Arabic College, Siddiqua Nagar, Mysuru-570
015.
4. Respondents herein have filed Crl.Misc.No.12/2012 before the Family Court, Mysuru under Section 125 of Cr.P.C seeking maintenance and an order came to be passed awarding maintenance. Contention was raised in the said petition that petition was not maintainable and respondent cannot invoke Section 125 of Cr.P.C, since she is a divorced Muslim lady, would be governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 of 1986) (herein after referred to as 'Act' for short). -4-
5. An interim order came to be passed on 24.08.2012 granting interim maintenance in Crl.Misc.12/2012 awarding Rs.10,000/- and Rs.5,000/- to respondents herein. Being aggrieved by the same, petitioner was before this Court in Writ Petition No.39303/2012, which came to be dismissed on 24.01.2013, by affirming the order passed by the trial Court. Same has reached finality. When the matter was pending before the trial Court, a joint memo came to be filed by the parties whereunder they agreed to live together and by placing the said joint memo on record and after explaining the contents of joint memo to both the parties in the language known to them i.e., in Kannada and after explaining the contents of the same which came to be accepted as true and correct, joint memo came to be accepted and Crl.Misc. No.12/2012 was disposed of by order dated 06.02.2016. -5-
6. It is subsequently thereafter present petition in question, namely, C.Misc.467/2016 came to be filed before the Family Court, Bengaluu by the respondents herein seeking maintenance. In the said proceedings, objections came to be filed by the petitioner herein contending interalia that petition is not maintainable since first respondent herein is a divorced Muslim lady and as such, she would be governed by the Act. Hence, petitioner herein sought for dismissal of C.Misc.No.467/2016. Learned trial Judge by impugned order dated 21.08.2017, held that petition is maintainable in view of joint memo having been filed in Crl.Misc.No.12/2012, which ended in a settlement on 06.02.2016 and as such, the contention of the petitioner about the maintainability of the C.Misc.No.467/2016 came to be rejected. Hence, petitioner has filed W.P.No.49243/2017. -6-
7. Subsequently, adjudicating the interim application for grant of maintenance which has been filed by first respondent under Section 125(1) of Cr.P.C, an order came to be passed on 22.3.2018 awarding maintenance at the rate of Rs.15,000/- per month to the first petitioner and Rs.10,000/- to the second petitioner till he attains majority and it was also held that he would be entitled for educational expenses. Petitioners therein i.e., first and second respondents herein were also held to be entitled to litigation expenses of Rs.5,000/- by order dated 22.03.2018 Annexure-'H', which is impugned in W.P.No.23674/2018.
8. I have heard the arguments of Sri. R.S.Ravi, learned counsel appearing for petitioner and Sri.R.A.Chandrashekara, learned counsel appearing for the respondents and perused the records. -7-
9. It has been the contention of Sri. R.S.Ravi, learned counsel appearing for the petitioner that there being no dispute to the fact that first respondent has been divorced by Talaqnama, which was accepted by the Islamic Court under the Shariat Law and granting a decree of divorce on 24.10.2011, first respondent would acquire the status of divorced Muslim lady and as such, her rights, if any, would be governed by the Act and she cannot invoke the provisions of Section 125 to 128 of Cr.P.C unless the ingredients prescribed under Section 5 of the Act is satisfied. He would also draw the attention of the Court that first respondent's remedy is to file an application under Section 3(3) of the Act before the jurisdictional Magistrate, who would examine the said application as per the Act viz., Section 3(3) and as such, the petition for maintenance was not maintainable. He would also draw the attention of the court to Personal law governing the parties namely, the Shariat Law i.e., Section 313 to buttress his arguments -8- that there has been a Talaqnama between petitioner and the respondent and it is irrevocable. Hence, he prays for allowing the petition by setting aside the impugned order and dismissing C.Misc.No.467/2016 as not maintainable.
10. Per contra, Sri.K.A.Chandrashekara, learned counsel appearing for the respondents would support the impugned order and contend that petitioner is estopped by raising such plea in view of earlier order, which ended in a settlement by filing a joint memo and as such, plea now put forward is not sustainable and liable to be rejected.
Discussion on point formulated above:
11. In the light of above said contentions, it requires to be noticed that undisputedly there was a Talaqnama which came into existence between the parties on 24.10.2011, namely, the marriage which was contracted between the petitioner and first respondent -9- was put an end by Talaqnama. No doubt the parties are governed by the Shariat Law. Sections 312 and 313 of the Shariat Law would throw light as to when the Talaqnama becomes irrevocable in respect of three types of Talaqnamas. At the same time, this Court cannot lose sight of the fact of Section 336 of the Shariat Law, which allows remarriage between the divorced Muslim couple governed by the Shariat Law. However, the factum of divorce or dissolution having taken place under Talaqnama being irrevocable, a presumption arises in its favour unless it is repudiated or demonstrated that presumption has been rebutted. If the parties to the divorce resume co-habilitation, the presumption stands rebutted.
12. In the instant case, keeping these principles in mind namely, Sections 311, 312, 313 and 336 of Shariat Law, when facts on hand are examined, it would clearly disclose that in the earlier round of litigation,
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when first respondent herein filed Crl.Misc.No.12/2012 by invoking Section 125 of Cr.P.C and sought for maintenance, an interim order came to be passed awarding maintenance and it was affirmed by this Court as already noticed herein above and when the said matter was pending before the trial Court, a joint memo came to be filed by the parties. Recording the said joint memo, on 06.02.2016, the petition came to be disposed of in terms of joint memo as dispute settled between the parties. In fact, under order dated 21.08.2017 Annexure-'G' (subject matter of W.P.No.49243/2017), the contents of joint memo as well as the order passed thereon has been extracted. As such, it would not be necessary to extract the same, suffice it to say that order accepting the joint memo has become final.
13. Furthermore, pleadings of the petition in question i.e., C.Misc.No.467/2016, namely, the objections filed by writ petitioner herein to maintenance
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petition, writ petitioner admits about filing of joint memo, orders passed thereon and consent being given by him for filing such joint memo, in the words of writ petitioner, his admission reads as under:
"18. The averments made xxxxxxxxxxxxxxxxxxxxxxx Exhibits. The Respondent with a good intention, welfare and Education of his son i.e. the 2nd Petitioner had compromised with the Respondent in the said C.Misc.No.12/2012. The other allegation xxxxxxxxxxx proof of the same.
19. The averments and allegations xxxxxxxxxxxxxxxxxxxxxxxx the 2nd petitioner. The Respondent in view of the welfare of the family, particularly in the interest and future of the 2nd Petitioner, consented for filing the Joint Memo before this Hon'ble Court in C.Mis.No.12/2012 with a fond hope to lead a happy marital life. In fact, the Respondent xxxxxxxxxxxxxxxx as claimed by her".
(Emphasis supplied by me)
14. Above admission would clearly indicate the presumption of irrevocability arising under Section 313
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of Shariat Law had stood rebutted as indicated under Section 336(5). As such, petitioner cannot be heard to contend that status of first respondent is that of a divorced Muslim lady and as such, she would be governed by the provisions of the Act. In that view of the matter, contention raised by the learned counsel appearing for the petitioner cannot be accepted and order passed by the learned trial judge, upholding the order of maintainability cannot be found fault with, as it does not suffer from any illegality calling for interference.
15. In so far as order of maintenance is concerned, which is impugned in W.P.No.23674/2018, it would disclose that learned trial Judge having taken note of the fact that second petitioner is studying in PUC and require to spend amount towards his educational expenses and he would also be required to spent amount towards his maintenance and the fact
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that first petitioner is without any avocation, has awarded maintenance of Rs.15,000/- and Rs.10,000/- respectively.
16. In the background of petitioner being a qualified Doctor with sufficient income to meet the expenses so awarded and findings of trial Court being based on factual evaluation, this Court is of the view that it does not suffer from any infirmity calling for interference.
No grounds. Hence, writ petition is hereby rejected.
SD/-
JUDGE PYR/AG