Orissa High Court
Abdul Rashid Khan vs Mustafiran Bibi And Ors. on 19 May, 2006
Equivalent citations: AIR2006ORI186, 2006(II)OLR94, AIR 2006 ORISSA 186, 2007 (1) ALL LJ NOC 87, 2007 (1) AJHAR (NOC) 334 (ORI), 2007 A I H C (NOC) 140 (ORI), (2006) 2 ORISSA LR 94, (2007) 2 MARRILJ 78, (2006) 34 OCR 637, (2007) 3 CIVLJ 360
Author: Pradip Mohanty
Bench: P.K. Tripathy, Pradip Mohanty
JUDGMENT Pradip Mohanty, J.
1. The above two appeals under Section 19 of the Family Courts Act, 1984 arise out of the judgment and order dated 29.01.2005 passed by the Judge, Family Court, Cuttack in Civil Proceeding No. 5 of 1992. MATA No. 11 of 2005 has been filed by the husband, who was the respondent before the Court below, and MATA No. 13 of 2005 has been filed by the wife and children, who were petitioners there. The Civil Proceeding was filed by the wife and children with a prayer for maintenance and recovery of dower dues, besides direction for return of cash and ornaments.
2. The case of the wife is that the husband was serving in military as a Jawan and was drawing salary of Rs. 2,500/- per month in the year 1983. He was sending money to his widowed mother and sister, who were spending the entire amount and not paying anything for food and clothing of the wife and children as well as for education of the children. They were also ill-treated. In July, 1990 the husband came to the matrimonial home and compelled the wife to bring cash of Rs. 50,000/- to which the wife expressed her inability and the husband wanted to kill the wife by electric shock. Her mother-in-law and sister-in-law snatched away all the ornaments from her body and assaulted her. Lastly she was driven out of the matrimonial home on 29.08.1990. On 01.09.1992, the husband came and wanted her signature on a blank paper, to which she refused, whereupon the husband threatened to murder her. In that connection, a complaint case has been instituted against the husband.
3. The case of the husband in his written statement is that he has given divorce to the wife on 31.12.1991 for her arrogance and lavish expenses. The wife never liked to stay in the matrimonial home when he was remaining in the boarder area due to his service in the defence. The parents of the wife did not allow the husband to come to his wife and children, for which the life of the husband became miserable and he divorced the wife. The husband in his written statement denied all the allegations.
4. In order to prove her case, the wife examined as many as three witnesses including herself as P.W.1 and relied on four exhibits marked Exts.1 to 4. The husband examined himself as O.P.W.1 and also relied on four exhibits marked Exts. A to D.
5. The Judge, Family Court, after conclusion of the hearing by his judgment and order dated 29.01.2005 partly decreed the case with a direction to the husband to pay monthly maintenance at the rate of Rs. 500/- per month to each of the petitioners 1, 3 and 4 before him from 07.01.1992, i.e., from the date of filing of the case. He further directed to pay monthly maintenance at the above rate to petitioner No. 2 before him from the date of filing of the petition till 01.09.2002. While the husband has filed MATA No. 11 of 2005 challenging the said judgment, the wife and children have filed MATA No. 13 of 2005 with a prayer to modify the judgment by allowing their claim of arrear maintenance and the claim for return of dowry articles or price thereof.
6. Mr. Irshad, learned Counsel for the husband, submitted that the proceeding was not maintainable and the Judge, Family Court, Cuttack had no jurisdiction to try the case. He further submitted that the petition formaintenance filed under Section 7 of the Family Courts Act was also not maintainable, since the wife claimed maintenance for herself and for children whereas the Family Court can decide the dispute only between the husband and the wife. Therefore, it is liable to be set aside. His further submission was that the Judge, Family Court should have entertained the application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 since the husband had divorced the wife and the wife also claimed return of the dower.
7. Mr. Ghose, learned Counsel for the wife, submits that the Court below fell into error in not considering the wife's claim for arrear maintenance from 01.08.1990 to 06.01.1992 and rejecting the claim for recovery of dower and dowry articles or price thereof.
8. In the instant case, the Muslim wife filed an application for maintenance for herself and for her children. The husband in his written statement pleaded that he had divorced her on 31.12.1991. In his deposition, he stated that he gave her Talaq on 31.12.1991. Except this bald statement, no other evidence has been adduced by the husband to prove the factum of Talaq. Mr. Irshad argued that the moment the written statement was filed by the husband mentioning the above fact, it should be considered that Talaq was given from that date. It has been held by the apex Court in Shatnim Ara v. State of U.P. AIR 2002 SC 3551, that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot itself be treated as effectuating Talaq on the date of delivery of copy of the written statement to the wife. In the instant case, the husband ought to have adduced evidence and proved that the pronouncement of Talaq was made on 31.12.1991. The plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of Talaq by the husband on wife on the date of filing of written statement. In the instant case, mere statement by the husband without proving anything cannot be accepted that Talaq had, in fact, taken place. The correct law of Talaq, as ordained by the Holy Quaran, is (i) that Talaq' must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife and the other chosen by the husband. If their attempts fail, 'Talaq' may be effected. In the case at hand, nothing having been proved by the husband, neither the marriage between the parties stood dissolved on 31.12.1991 nor did the liability of the husband to pay maintenance come to an end on that day. The liability of the husband to maintain his wife and children or pay maintenance for them continues till the marriage subsists. Therefore, the contention of Mr. Irshad has no force.
9. Let us now discuss the second contention raised by Mr. Irshad with regard to the jurisdiction and maintainability of the proceeding before the Family Court. Section 7 of the Family Courts Act, 1984, which deals with 'jurisdiction', is extracted hereunder:
7. Jurisdiction -(1) Subject to the other provisions of this Act, a Family Court shall-
(a) 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 the nature referred to in the explanation and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, 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) 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;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to the order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974) ; and
(b) such other jurisdiction as may be conferred on it by any other enactment.
A bare reading of the aforesaid provision would manifest that a suit or proceeding for maintenance is maintainable under Sub-section (1)(f) of Section 7 of the Family Courts Act. Sub-section (2) thereof provides the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure relating to order for maintenance of wife, children and parents. Section 8 of the Family Courts Act provides for exclusion of jurisdiction of the civil Court and criminal Court. In other words, in an ara where a Family Court has been established, no Court shall have jurisdiction to entertain both the civil proceeding and criminal proceeding with regard to maintenance. Therefore, the second contention of Mr. Irshad also fails.
10. With regard to the contention of Mr. Ghosh for return of the dower and the dowry articles or the price thereof, that question will arise only after the Talaq under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is proved. That having not been done in this case, the Family Court has rightly rejected the prayer for return of the dower and the dowry articles or the price thereof. As regards the claim of the wife and children for payment of arrear maintenance, maintenance having been granted from the date of application, this Court does not find any reason to interfere with the same.
11. In view of the above, both the appeals fail and are accordingly dismissed.
P.K. Tripathy, J.
12. I agree.