Patna High Court
Rashid Nazfi Alias Rashid Najfi vs Shahin Gulab on 11 August, 2005
Equivalent citations: 2005(3)BLJR1897, 2005CRILJ4290, 2005 CRI. L. J. 4290, 2006 (1) AJHAR (NOC) 1 (PAT), 2006 (1) ALL LJ NOC 73, 2006 (2) AJHAR (NOC) 245 (PAT), 2006 (1) AKAR (NOC) 1 (PAT), 2005 (3) BLJR 1897, 2005 BLJR 3 1897, (2005) 35 ALLINDCAS 887 (PAT), (2006) 1 RECCRIR 365, (2006) 1 RECCIVR 119, (2005) 3 BLJ 681, (2006) 1 HINDULR 157, (2006) 1 MARRILJ 555, (2006) MATLR 169, (2005) 3 PAT LJR 741, (2006) 1 ALLCRILR 623
ORDER Ram Nandan Prasad, J.
1. The petitioner has filed this revision petition against the order dated 25-2-2005 passed by Additional Principal Judge, Family Court, Patna in Maintenance Case No. 56(M) of 2003 whereby interim maintenance has been allowed to the opposite party.
2. The opposite party filed the above-mentioned maintenance case under Section 125 of the Code of Criminal Procedure stating therein that she was married to the petitioner on 22-4-2000 and she is his legally married wife. She was mentally and physically tortured on the ground of demand of dowry. The petitioner is not ready to live with her as husband-wife and is trying to marry again and as such she has been compelled to reside with her sister at Alamganj, Patna City and she has no means for her maintenance. The petitioner is an Engineer earning Rs. 28.000/- per. month and as such, prayed for maintenance at the rate of Rs. 15,000/- per month and also Rs. 40,000/- as legal expenses.
3. Notice was issued to the petitioner but in spite of service of notice he did not turn up and as such the case was taken up for ex parte hearing and two witnesses were examined. During the pendency of ex parte hearing the petitioner appeared in the case and filed a petition for recall of the order of ex parte hearing stating therein that he has already divorced the opposite party on 7-11-2002 and as such she is not entitled to maintenance.
4. The opposite party thereafter filed an application for interim maintenance denying the claim of the petitioner that she has been divorced and also that she is entitled to maintenance as there is no allegation that she has remarried. The petitioner filed rejoinder to the said petition stating therein that the petition is not maintainable as he has already divorced her on 7-11-2002, she has also own source of income from tuition, the period of Iddat has already expired and he has to maintain his younger brother also.
5. The Court below after hearing the parties and on consideration of the materials on record passed the order holding that the opposite party is entitled to maintenance and allowed interim maintenance at the rate of Rs. 5000/- per month and Rs. 10,000/-as legal expenses of litigation which has been impugned in this civil revision.
6. Learned counsel for the petitioner submitted that the case under Section 125, Cr. P.C. for grant of maintenance is not maintainable as the petitioner has divorced the opposite party. On the other hand, learned counsel for the opposite party denied the claim of the petitioner that he has divorced her. Moreover, there is no allegation that she has remarried and as such she is entitled to maintenance as has been directed by the Court below.
7. On consideration of the submissions .made by the counsel for the parties this much is obvious that there is no dispute that the opposite party was married to the petitioner on 22-4-2000. It is also not in dispute that the petitioner is an Engineer and is in job. However, the claim of the petitioner is that he has divorced the opposite party on 7-11-2002 which has been confirmed by Imarat-e-Shariya, the period of Iddat has already expired and as such the petition of the opposite party under Section 125, Cr. P.C. is not maintainable.
8. Learned counsel for the petitioner in support of his submission relied upon a decision in the case of Danial Latifi v. Union of India, , wherein the Apex Court considered the provisions of Section 125, Cr. P.C. and the validity of Muslim Women (Protection of Rights on Divorce) Act, 1986, hereinafter referred to as 'the Act'. The Apex Court on consideration of the scope and object of the provisions of Section 125, Cr. P.C. and Sections 3 and 4 of the Act, 1986 has held as follows (Para 36) :-
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 provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
9. Learned counsel also relied upon a decision in the case of Ibrar Alam v. State of Bihar, 1999 (3) Pat LJR 1, wherein a Division Bench of this Court has held that once it is proved that a Muslim woman has been divorced in accordance with law, her right to claim maintenance under Section 125 of the Code of Criminal Procedure ceases unless both parties agree for disposal of their case in terms of provisions of Section 125 of the Code of Criminal Procedure. But prior to divorce her claim for maintenance in case of refusal or neglect by the husband is governed by Section 125, Cr. P.C. for simple reason that before divorce she is wife of the Muslim husband and he is liable to pay maintenance to his wife in case of fulfillments of the conditions as mentioned in Section 125 of the Code.
10. It is thus, obvious from the discussions made above that on proof of divorce, the petition under Section 125, Cr. P.C. is not maintainable but prior to divorce the petition under Section 125, Cr. P.C. is maintainable.
11. In the instant case it is the specific case of the opposite party that she is legally married wife of the petitioner and she has not been divorced. The claim of the petitioner that she has been divorced is false and fabricated. Therefore, it is to be determined as to whether the opposite party has been divorced in accordance with law. Except in the written statement/rejoinder to the petition for interim maintenance filed by the petitioner to the effect that he has divorced the opposite party there is no proof of divorce on the record either by evidence or by documents. In the case of Shamima Ara v. State of U.P., AIR 2002 SC 3551 : 2002 Cri LJ 4726, the question crept up for determination as to whether the plea taken in the written statement that the wife has been divorced is sufficient to hold that divorce is complete and genuine. The Apex Court on consideration of the different provisions and also different decisions of the Court, held that the correct law of Talaq as ordained by Holy Quaran is (1) that Talaq must be for 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 from her family and the other by the husband from his family. If their attempts fail, 'talaq' may be effected. The Apex Court has also held that mere plea taken in the written statement is not sufficient to hold that it is a valid Talaq as follows (Para 16) :-
We are also of the opinion, that the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to utter, to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A 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 the written statement in the Court following for delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as relevant and of any value.
12-A. In the case in hand, it appears from the materials on record that except the plea taken in the written statement/rejoinder to the interim petition that the petitioner has divorced the opposite party no documentary evidence/oral evidence has been produced to hold that his plea of divorce is legal and valid. It appears from the case decided by the Supreme Court in the case of Shamima Ara, 2002 Cri LJ 4726 (supra) that Talaq must be for reasonable cause and also preceded by an attempt of reconciliation between the husband and the wife by two arbiters chosen by wife and the husband and also that mere plea in the written statement is not sufficient to hold that Talaq is valid. In this case there is nothing on the record to show that there was an attempt of reconciliation except the plea of divorce taken and as such, the claim of the petitioner that opposite party has been divorced cannot be held to be valid and as such the opposite party is entitled to interim maintenance.
13. Learned counsel for the petitioner however, next contended that the amount of maintenance is excessive. In support of his submission he pointed out that the petitioner's basic pay is Rs. 14,800/-, along with other benefits provided by the Company to him. The Court proceeded on the basis of the said plea of the petitioner and has granted interim maintenance to the tune of Rs. 5.000/- per month and Rs. 10.000/- as cost of litigation. Obviously, even if the claim of the petitioner is accepted the amount of maintenance is l/3rd of his basic salary and as such, it cannot be said to be excessive.
14. Thus, on consideration, as discussed above, 1 find no merit in this revision petition which is accordingly dismissed.