Orissa High Court
Mr. Abdul Raheman vs Nurjahan @ Nuri Bibi on 13 December, 1999
Equivalent citations: 2000(1)ALT(CRI)14, 2000CRILJ1949, I(2000)DMC720
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard further argument.
2. After a prolonged hearing, it is found that the position of law as stated in the case of Abdul Rauf Khan v. Haleman Bibi and Anr., 67 (1989) CLT 285=1 (1990) DMC 315, is applicable keeping in view the facts and circumstances of this case.
3. The relevant facts may be stated as hereinafter, Misc. Case No. 25-I of 1979 under Section 125, Cr. P.C. filed by the opposite party was heard and disposed of by the learned S.D.J.M., Bhadrak on 11.1.1983 allowing her claim for maintenance and awarding monthly maintenance of Rs. 120/- in her favour That order was confirmed with modification by the Sessions Judge, Balasore in Criminal Revision No. 4/25 of 1983 vide judgment dated 23.2.1984. Learned Sessions Judge, reduced the monthly maintenance amount from Rs. 120/- to Rs. 80/-. The monthly maintenance was made payable from 11.1.1983. When the opposite party filed application for execution, petitioner filed Misc. Case No. 146 of 1990 under Section 127(3)(b) (though wrongly noted as under Section 127(3)(b), Cr. P.C.): In that application; petitioner contended that he had divorced the opposite party in customary manner on 10.8.1988 and in view of the provisions in Muslim Women's (Protection of Rights on Divorce) Act, 1986 (in short 'the Act 1986') read with Section 127(3)(b), Cr.P.C., the maintenance order in favour of the opposite party be cancelled. Opposite, party filed her objection denying the allegation of talaq and stated that customary payment; such as Iddat and Mahr were never paid nor the talaq was given or communicated.
4. Petitioner adduced evidence of himself and two witnesses as P.Ws. 1 to 3 and the opposite party examined herself as the solitary witness from her side. On assessment of that evidence and upon consideration of the position of law, learned S.D.J.M. on 4.3.1993 allowed the application on the grounds that in view of the provision in the Act, 1986 and the provisions of law under Section 127(3), Cr. P.C. petitioner has forfeited the right of maintenance. Opposite party preferred a revision against that order. Learned Additional Sessions Judge, Bhadrak in Criminal Revision No. 20 of 1993 set aside the aforesaid order of the S.D.J.M. on the ground that the order of maintenance was passed prior to the Act, 1986 came into force, provisions in Section 3 therein is not retrospective in its operation and therefore, by virtue of that law right of the opposite party to claim maintenance cannot be forfeited. He further held that provisions in Section 127(3), Cr. P.C. is of no help to the petitioner because he had not pleaded in his application that he made all payments at or after the talaq in accordance with the custom and their personal law and as a consequence Section 127(3)(b), Cr. P.C., cannot be banked upon to defeat the claim of maintenance granted in favour of the opposite party. He further held that the maintenance as ordered in the Misc. Case No. 25-1 of 1979 is payable by the petitioner. That order is challenged in this revision.
5. In the case of Abdul Rauf Khan (supra) this Court on examination of the scope and applicability of the Act, 1986 has held that the law in question has no retrospective operation. Mr. D.P. Dhal, learned Counsel for the petitioner after obtaining some adjournments to find if a contrary decision of this Court or Apex Court is there or not, fairly concedes that there is no contrary decision directly on the point to over rule the ratio in the above cited case. While conceding to the correctness of the said ratio, he does not press into service the citations noted in his notes of argument. The position of law is, thus, clear that petitioner is not protected by the provision in the Act of 1986 to defeat the order do maintenance granted in favour of the opposite party.
6. Mr. Dhal, however, contends that notwithstanding non-applicability of the Act, 1986, in view of the provisions of law in Section 127(3)(b)(ii), Cr. P.C., order passed by the S.D.J.M. is dependable and defendable as against the impugned order of Additional Sessions Judge. Mr. Irshad, learned Counsel for the opposite party on die other hand, argues supporting the finding of learned Additional Sessions Judge.
7. In that connection, learned S.D.J.M. after stating in brief the substance of the evidence led by both parties abruptly concluded that petitioner divorced the opposite party with effect from 10.8.1988 and paid Rs. 200/- (two hundred rupees) as maintenance towards the iddat period. Learned Additional Sessions judge on the other hand stated that in the absence of pleading by the petitioner, necessary payment of iddat amount, evidence adduced by him in that respect is not acceptable and accordingly, the provision of law in Section 127(3)(b)(ii) is not available in his favour.
8. On perusal of the petition filed by the petitioner under Section 127, Cr. P.C. (Misc. Case No. 146 of 1990), it is seen that except making the averments that on 1018.1998, petitioner divorced the opposite party and communicated the same through gentleman and in registered post with A.D., he has not stated anything regarding payment of the customary amount of Iddat or Mahr. Petitioner as P. W. No. 1 in his examination-in-chief stated about communicating the fact of divorce and regarding sending Rs. 200/- through P.W. No. 3. In cross-examination he has stated that he cannot say for which period that Iddat amount was paid and he admitted that 'Das Mahr' amount has not been paid by him. Sk. Kallimudin, the P.W. No. 3 stated in his examination-in-chief that divorce was given in his presence but opposite party was not present at the spot and that he communicated the fact of talaq and paid Iddat amount of Rs. 200/-. In the cross-examination, he stated that he cannot say on which account that amount was paid. He also could not say what was the 'Das Mahr' amount fixed at the time of marriage. P. Ws. 1 to 3 stated in their evidence regarding the talaqnama reduced to writing by one Moulabi but neither that talaqnama was produced and proved in the case nor that Moulabi was examined. Opposite party on the other hand denied about the talaq, intimation of talaq having received either from P.W. No. 2 or through registered post and regarding receipt of iddat or Mahr amount.
9. Learned S.D.J.M. did not properly scanned and appreciated the evidence and accepted the version of the petitioner and his witnesses on their face value and without taking note of the above glaring deficiencies in such evidence regarding proof of talaq and payment of Iddat and Mahr. Learned Additional Sessions Judge, however, not taking note of such deficiency in the evidence tendered by the petitioner rejected the plea on the ground of absence of requisite pleadings, i.e., required averments in the Misc. petition.
10. Be that as it may, it is clear from the above discussed evidence that though petitioner has stated that he divorced his wife i.e., the opposite party, but evidence tendered by him does not prove that at or after the said divorce petitioner has paid whole of the sum which was payable by him to the opposite party according to their personal law and/or custom. In that respect, there is not a wish per in the application he filed and the evidence as discussed above, does not inspire confidence to accept the stand that Rs. 200/- was paid towards Iddat.
11. At this juncture reference to Section 127(3)(b), which reads as hereunder, is relevant:
"127. Alteration in allowance :
(1) XXX XXX XXX XXX XXX XXX (2) XXX XXX XXX XXX XXX XXX (3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that-
(a) xxx xxx xxx xxx xxx xxx
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i) in the case where such sum was paid before such order, from the date on which order was made,
(ii) in any other case/from the date of expiry of the period, it any, for which maintenance has been actually paid by the husband to the woman;
xxx xxx xxx xxx xxx xxx".
12. Above quoted provision of law authorises the Magistrate to upset an order of maintenance only when the husband proves to the satisfaction of the Magistrate that he has divorced the wife and she has received the whole of the sum which she is entitled to receive under the personal law or custom by which they are governed.
13. In view of the above noted factual findings that petitioner has failed to state in his application and has not proved the factum or payment of any sum much less the whole sum at or after the divorce he is not entitled to the relief claimed. In other words, petitioner's prayer to recall or cancel the order of maintenance, under the given facts and law, is not entertainable. Hence while affirming the impugned judgment of the Additional Sessions Judge, Bhadrak, this Court dismisses this revision.