Gujarat High Court
Aiyubsha A Razakmiya Saiyed ... vs State Of Gujarat on 1 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/1320/2012 ORDER DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1320 of 2012
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AIYUBSHA A RAZAKMIYA SAIYED THRO.SAKINABIBI AIYUBSHA
SAIYED
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Applicant(s) No. 1
MR PREMAL S RACHH(3297) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/10/2021
ORAL ORDER
1. The petitioner has come up before this Court with prayer for quashing and setting aside the order passed by the learned Judicial Magistrate First Class, Dhoraji in Criminal Misc. Application No.357/2001 under Section 125 of Cr.P.C. dated 21.02.2003 and order dated 12.09.2005 of the Presiding Officer, 9th Fast Track Court, Gondal Camp at Dhoraji; Further a prayer is made to quash and set aside the order dated 21.12.2011 passed in Criminal Misc. Application No.142/2011 in respect of recovery under section 125(3) before the learned Additional Chief Judicial Magistrate, Dhoraji; and further prayer is also made to direct the Jail Superintendent, Dhoraji to take appropriate measure for medical care of the petitioner.
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2. Advocate Mr. Samir Afzal Khan submitted that petitioner is out of jail, who was imprisoned in execution proceeding for recovery of maintenance money, thus does not pray for relief of direction to jail authority.
3. It is stated by the petitioner that he is a mentally depressed person and on account of depression he has twice attempted to commit suicide. It is stated that petitioner had married with one Sakinabibi on 19.04.1987 and he has three children.
3.1 The disputed marriage stated to be solemnized on 25.06.2000 and registered before the Registrar of Marriage Dhoraji on 01.07.2000 between the petitioner and respondent no.2, Jebunisha Umermiyan Saiyed. It is stated that at the time of marriage, respondent no.2 was a married woman and she was having three children and was aged about 43 years.
3.2 The petitioner has stated that the said marriage was solemnized by way of fraud, since there was a family enmity between both the families. It is stated that the respondent no.2 is the real aunt of the petitioner and taking undue advantage of his innocence and mental weakness, marriage was registered. It is stated by the petitioner that there was no 'Nikah-Nama' for validity of the marriage as per the Muhammadan Laws and immediately after 13 days i.e. on 08.07.2000 a Page 2 of 8 Downloaded on : Sun Jan 16 20:30:15 IST 2022 R/SCR.A/1320/2012 ORDER DATED: 01/10/2021 'Kabulatnamu' was sworn by respondent no.2 revoking and denying the said marriage in presence of the family members, where the respondent no.2 had accepted that the marriage was performed by fraud.
3.3 It is also alleged that the first husband Gulam Haider had also sworn an affidavit to the effect that he and respondent no.2 never divorced. It is also contended that information sought under Right to Information Act, reveals that the respondent no.2 was getting benefits from Government being the wife of Gulam Haider until 01.08.2003 and that she had filed an affidavit stating that Gulam Haider is her husband.
3.4 It is further contended by the petitioner that respondent no.2 is living with her husband Gulam Haider and his family. The respondent no.2 and her husband are earning members, those facts have not been appreciated by the learned Judicial Magistrate and further contended that the learned Judicial Magistrate ought to have examined the fact that the first husband was not examined during the trial and the evidence was laid by the petitioner to show that there was no valid 'Nikahnama' as per the Mohammedan Law. Under that premise, prayer is made to quash and set aside the order passed under Section 125 of Cr.P.C.
3.5 It is also contended that the petitioner had laid evidence to the effect that the respondent no.2 is a Page 3 of 8 Downloaded on : Sun Jan 16 20:30:15 IST 2022 R/SCR.A/1320/2012 ORDER DATED: 01/10/2021 married woman and she is having three children from her husband. It is also further contended that there was no matrimonial life between the petitioner and respondent no.2 as husband and wife and the learned Judge has relied on the declaration of marriage which is not even signed by the priest and the witnesses. Further stated that since the respondent no.2 was never a divorcee and as she has a first husband, she is not entitled for any maintenance under Section 125 Cr.P.C. and any recovery under Section 125(3) Cr.P.C. is bad and illegal.
3.6 Further plea has been raised that, vide maintenance order the maintenance was awarded to respondent no.2 on 24.12.2001, but she had never claimed any maintenance money from the petitioner and only after a period of 10 years she has made claim for the maintenance money which is not permissible under law.
4. Mr. Samir Afzal Khan, learned advocate for the petitioner reiterating the facts of the matter and the grounds raised in the petition submitted that, the petitioner is a mentally depressed person and to corroborate the same fact documents of medical treatment of the petitioner is placed on record. He stated that specific plea was taken that the respondent no.2 had never taken divorce from her earlier marriage and the documents which have been procured under the Right to Information Act, shows that the respondent no.2 was taking all the benefits from the Government Authorities Page 4 of 8 Downloaded on : Sun Jan 16 20:30:15 IST 2022 R/SCR.A/1320/2012 ORDER DATED: 01/10/2021 as wife of first husband.
5. Countering the arguments, Advocate Mr. Dhaval Kansara for Mr. Premal S.Rachh, learned advocate for respondent no.2, stated that all the grounds raised in the petition are not maintainable since the order under Section 125 of Cr.P.C. was passed on 21.02.2003. He submitted that the order of the Judicial Magistrate, Dhoraji, clarifies that the maintenance amount was provided only to the respondent no.2 and no such relief was granted in favour of the minor children, who were born out of the earlier marriage.
5.1 Mr. Dhaval Kansara stated that, plea of her earlier marriage and the claim that respondent no.2 had not taken divorce from first marriage, was considered by the Court during the trial and was not believed. Mr. Kansara stated that the marriage registration itself shows the status of the respondent no.2 as being divorcee and the documents, produced by the petitioner, procured under Right to Information Act, clarifies that she had taken the benefits under the government scheme till 01.08.2003, as a deserted wife of the husband and, because of the marriage with the petitioner the benefits were surrendered.
5.2 Mr. Kansara stated that false pleas are raised to avoid the payments of the maintenance money; Execution petition under Section 125(3) of Cr.P.C. was Page 5 of 8 Downloaded on : Sun Jan 16 20:30:15 IST 2022 R/SCR.A/1320/2012 ORDER DATED: 01/10/2021 also filed and no grounds remained for challenging the order of maintenance passed by the Judicial Magistrate First Class, which was passed nine years ago, prior to the present petition.
6. Criminal Misc. Application No.357/2001 was moved by respondent no.2 under Section 125 of Cr.P.C. and applicant nos.2 to 4 therein were the minors. The learned trial Court Judge had considered the reply of the present petitioner and has also considered the facts of their customs adopted in the Muslim community and after appreciating all the evidence had come to the conclusion of granting maintenance amount only to respondent no.2.
7.1 Even after appreciation of the documents in the maintenance proceeding, the present petitioner has not gone for any declaration of it being fake marriage and not gone before the appropriate Court for declaration of the marriage documents being fraud or fabricated.
7.2 The learned trial Court Judge has believed the registration of marriage before the Registrar office, Dhoraji, the fact of petitioner along with respondent no.2 having visited Hyderabad after marriage, the evidence to that regard had been appreciated by the learned Judge. The trial Court believed respondent no.2 to be legal wife of petitioner and had came to the conclusion that without any fault of respondent no.2, illegally had deserted her.
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8. The plea has been taken that the present petitioner is not mentally fit and therefore order of maintenance would not have been passed. The said fact of mental illness cannot be appreciated at this stage, since the petitioner himself has given his deposition before the trial Court. The documents of marriage registration has been appreciated by the learned Judicial Magistrate, First Class. Against that order, Criminal Revision Application No.28/2003 was preferred by the present petitioner. The same came to be dismissed for default on 12.09.2005 and after a long period, the present petition in the year 2012 has been preferred. There is no reason to interfere with the order passed by the learned Judicial Magistrate, First Class and even the order of the Revisional Court.
9. In view of the above discussions and observations, the petition stands rejected. Rule is discharged.
10. After the above order was dictated in the Court, learned advocate Mr. Samir Afzal Khan for the petitioner, prayed to stay the operation of the order and also prayed for sending the matter for Mediation.
10.1 While objecting the same Mr. Kansara, learned advocate for respondent no.2 submitted that, this is a maintenance order and hence stay would affect the life of the respondent no.2.
Page 7 of 8 Downloaded on : Sun Jan 16 20:30:15 IST 2022R/SCR.A/1320/2012 ORDER DATED: 01/10/2021 10.2 The request for staying the operation of the present order and sending the matter to Mediation Centre is not accepted, since the maintenance order is dated 21.02.2003.
(GITA GOPI, J.) Pankaj Page 8 of 8 Downloaded on : Sun Jan 16 20:30:15 IST 2022