Delhi District Court
Sh. Nadeem vs ) Almisha on 6 April, 2010
1
IN THE COURT OF SH. GURDEEP SINGH:ASJ04
NORTHEAST DISTRICT:KARKARDOOMA COURTS:DELHI
IN THE MATTER OF:
SH. NADEEM
S/o Sh. Raysuddin
R/o Y68. Lakkad Market, Welcome
Seelampur, Delhi .....Revisionist
Versus
1) ALMISHA
D/o Smt. Amir Jahan
2) NAZISH
D/o Smt. Amir Jahan
(Respondent No. 1 and 2 Through Respondent No.3)
3) SMT. AMIR JAHAN .....Respondents
Criminal Revision No. 43/09
06.04.2010
O R D E R
1. Vide this order, I shall decide the revision petition filed against the order dated 11/06/2009, passed by Ms. Shuchi Shahmiri, Ld. Metropolitan Magistrate, Delhi, in maintenance petition U/s 125 Cr.P.C whereby interim maintenance was ordered to be paid @ Rs. 1000/ (each) totaling to Rs.3000/ per month. Hence, the present revision petition.
2. Notice of the revision petition was given to the respondents. Reply was filed by the respondents.
3. I have heard Sh. Puneet Garg, Advocate on behalf of the revisionist and Sh. Abdul Rauf, Advocate on behalf of the respondents. I have also gone Cr. R.No.43/09 Page 1 of 7 2 through the record.
4. The brief facts relevant for the disposal of the present revision petition are that respondent No. 1 and 2 namely Almisha and Nazish are the daughters and respondent No. 3 Aamir Jahan is the wife of the revisionist Nadeem. An application U/s 125 Cr.P.C was filed by the respondents against the revisionist herein. Ld. Trial Court while disposing off the application for interim maintenance awarded Rs. 1000/ per month in favour of each petitioner (respondents herein) from the filing of the petition. It is averred in the revision petition that respondent No.3 namely Ms. Aamir Jahan was married to the revisionist on 01.02.2001, as per Muslim Customs at Delhi and respondent No. 1 and 2 are two children born from the said wedlock. Thereafter, differences arose between the parties due to the uncordial behavior of the respondent No. 3. She filed a false complaint against the revisionist and his family members. Thereafter, with the intervention of the family members and other respectable people of the society, the dispute between the parties was settled and compromise was arrived at between the parties vide compromise deed dated 10.06.2008. Thereafter, respondent No. 3 had not abide by the terms of the said compromise deed and continued with the present petition which was liable to be withdrawn. The compromise has been admitted by respondent No. 3 in reply. It is further averred that at the time of settlement, it was agreed that no maintenance would be claimed by respondent No. 3 and also by respondent No. 1 and 2. Therefore, the impugned order is liable to be setaside. Cr. R.No.43/09 Page 2 of 7 3
5. On the other hand, respondents filed the reply to the revision petition controverting the allegations. It is stated in the reply that revisionist and his family members started harassing and torturing respondent No.3 on one pretext or the other and they used to beat her mercilessly and kept her starved and thereafter, on the basis of statement of respondent No.3, FIR U/s 498A/406/34 IPC was registered at PS: Welcome, Delhi. It is stated in the response to the paragraph regarding compromise that parties have arrived at the compromise and signed an agreement and after signing the document, parties turned back from the compromise but the original documents retained with the petitioner and now he is misusing the same.
6. Ld. Counsel on behalf of the revisionist submitted that the compromise deed was admitted by the respondent in her replication filed in the Trial Court. He has also filed the agreement. As per the agreement which is attested by the Notary Public, the date of which is not visible, it is stated that the revisionist had divorced respondent No. 3 in the presence of panch and has returned the dowry articles and in their presence, the amount of 'meher' and 'iddat' has been paid and there is no dues left. He has further submitted that petition U/s 125 Cr.P.C is not maintainable after the pronouncement of 'Talaq' which was reduced into writing. In support of his contention, Ld. Counsel for the revisionist has cited an unreported judgment of our own High Court in case tilted as "Mohd. Irfan Versus Nisharia Begum" in Crl. M.C No. 797/2005 dated 07.08.2007. He also cited judgment of our own High Court in case of Cr. R.No.43/09 Page 3 of 7 4 " Shri Mohd. Safi Versus Mst. Mehmooda Begum", 1994 III AD (Delhi)
404.
7. On the other hand, Ld. Counsel on behalf of the respondents submitted that as regards the children, there was no compromise entered into. Even otherwise, respondent No. 3 is not competent to enter into any agreement on behalf of respondent No. 1 and respondent No. 2 and as regards, respondent No. 3, the petition U/s 125 Cr.P.C is maintainable as per law laid down by Hon'ble Supreme Court. Ld. Counsel for the respondents has cited (a) "Shabana Bano Versus Imran Khan, 2010 (1) JCC 146", judgment of Hon'ble Supreme Court, (b) "Jamana Bai Versus Mushtaq Ali, 2009 (2) RCR (Criminal) 984", judgment of Hon'ble Madhya Pradesh High Court, (c) Shri Chandra Shekhar Versus Sushree Geeta, 2009 (4) RCR (Criminal) 730, Judgment of Hon'ble Bombay High Court and (d) Danial Latifi and another Vs. Union of India, AIR 2001 Supreme Court 3958.
8. Firstly, the factual position must be cleared. The said agreement/compromise deed does not talk about the children i.e respondent No. 1 and 2. Even otherwise, respondent No. 3 cannot come to the compromise on behalf of respondent No. 1 and 2 and with respect to their statutory right. Therefore, respondent No. 1 and 2 are entitle to the maintenance and revision petition with respect to respondent No. 1 Almisha and respondent No. 2 Nazish is dismissed with cost of Rs. 5000/ to be paid to the respondent No. 1 and 2 before the Trial Court.
Cr. R.No.43/09 Page 4 of 7 5
9. Now coming to the cited judgments on behalf of the revisionist. The judgment tilted as " Shri Mohd. Safi Versus Mst. Mehmooda Begum"
stands overruled, as per the law laid down by Hon'ble Supreme Court. As regards the judgment of "Mohd. Irfan Versus Nisharia Begum" , in the said case the petition U/s 125 Cr.P.C was filed by the muslim woman against her husband stating that she has been abandoned by the petitioner. The petitioner replied and stated that he had divorced her and filed the talaqnama and also stated that the consent for preferring the petition U/s 125 Cr.P.C has not been given by him. The wife/respondent did not file rejoinder to the reply filed by the petitioner and the application U/s 125 Cr.P.C was dismissed by court, after satisfying itself that the talaq has been pronounced, the order dated 02.11.1996 attained finality. Thereafter in the year 2001, another application U/s 125 Cr.P.C was filed which was opposed on the ground the previous application has attained finality. The interim application was dismissed by Ld. Metropolitan Magistrate vide order dated 11.08.2004. Respondent challenged the order dated 11.05.2004 and Ld. Additional Sessions Judge held that interim application as maintainable and grant the maintenance to the wife. The Hon'ble High Court held that since there was order dated 2.11.1996, although the same does not operate as res judicata, yet it is primafacie in favour of the respondent that the said matter requires inquiry and Hon'ble Court upheld the order of Ld. Metropolitan Magistrate. The said judgment is not applicable to the facts of the present case where it is the first application U/s 125 Cr.P.C and no previous application has been dismissed.
Cr. R.No.43/09 Page 5 of 7 6
10. Now coming to the second submission that after divorce, the application U/s 125 Cr.P.C is not maintainable. That again is no more res integra. The Hon'ble Supreme Court in celebrated judgment titled as Danial Latifi and another Vs. Union of India (SUPRA), while upholding the validity of Muslim Women (Protection of Rights on Divorce) Act, 1986, held as follows:
"Court holds that (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (1) (a) of the Act.
(2) Liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to iddat period. (3) A divorced muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
(4) The provision of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
11. Now only the question remains to be answered is whether the application under Muslim Women Act is required to be preferred or application Under Section 125 Cr.P.C. The Hon'ble Supreme Court in the recent pronouncement in Shabana Bano Versus Imran Khan (SUPRA) held that proceedings U/s 125 Cr.P.C are civil in nature and merely the title of Cr. R.No.43/09 Page 6 of 7 7 the petition cannot take away the right of the petitioner if it is wrongly titled. In the said case, the Hon'ble Supreme Court held that the application U/s 125 Cr.P.C will be maintainable after the woman has been divorced, even, after the expiry of iddat period, so long as she does not remarry. Therefore, contention of Ld. Counsel on behalf of the revisionist on this aspect is also fallacious. Accordingly, the revision petition in respect of respondent No. 3 is also dismissed.
12. Accordingly, as per the discussion above, I am of the opinion that the revision petition is dismissed with cost of Rs. 5000/ to be paid to the respondent No. 1 and 2 before the trial court and there is no illegality or impropriety committed by the trial court which calls for interference. The revisionist is also directed to make the payment of entire arrears to be payable to respondent No. 3 within the period of one month from today. The revision petition is accordingly dismissed. Copy of the order be sent to the Trial Court. Revision file be consigned to record room. Announced in the open Court today i.e on 06/04/2010 (GURDEEP SINGH) Additional Sessions Judge Karkardooma Courts, Delhi Cr. R.No.43/09 Page 7 of 7 8 Cr. R. No. 43/09 Nadeem Vs. Almisha & Ors.
06.04.2010
Present: Ld. Counsel for the revisionist.
Ld. Counsel for the respondent.
Heard.
Vide my separate order announced today, the revision petition is dismissed.
Copy of the order be sent to the Trial Court. Revision file be consigned to record room.
(GURDEEP SINGH) ASJ/KKD/06.04.2010 Cr. R.No.43/09 Page 8 of 7