Bombay High Court
Khairunnissa Begum W/O Aslamkhan vs Aslamkhan S/O Akbar Ali Khan on 22 July, 2008
Equivalent citations: AIR 2009 (NOC) 209 (BOM), AIR 2009 (NOC) 209 (BOM.) = 2008 (5) AIR BOM R 785 (AURANGABAD BENCH), 2008 (5) AIR BOM R 785, (2008) 2 DMC 332, 2008 ALLMR(CRI) 2140, (2009) 1 BOMCR(CRI) 88, (2008) 3 MH LJ (CRI) 705
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.829 OF 1997
Khairunnissa Begum w/o Aslamkhan
Age : 26 years, Occu.Household,
R/o Panjashah Galli,
C/ Mehboob Saheb Agarbatti Wale,
Parbhani ...Petitioner
(Orig.Applicant)
- Versus -
Aslamkhan s/o Akbar Ali Khan
Age 30 years, Occu.Contractor,
Editor of Leader
R/o Kala Bawar, Near Lalit Kala Bhavan
Parbhani. ... Respondent
(Orig.Opponent)
Ms.Sarika Puri, Advocate holding for Mr.V.D.Salunke,
Advocate for petitioner/applicant.
Mr.Laikh Baba Syed, Advocate holding for
Mr.K.G.Khader, Advocate for respondent.
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CORAM : V.R. KINGAONKAR, J.
Date of Reserving the Judgment: 16.7.2008
Date of Pronouncing the Judgment: 22.7.2008
JUDGMENT
1. This application is filed under Section 482 of the Criminal Procedure Code.
2. Applicant impugns order dated 17.1.1997 rendered by learned Sessions Judge, Parbhani, in Criminal Revision Petition No.196 of 1995. She seeks quashing of the said order whereby and whereunder ::: Downloaded on - 09/06/2013 13:37:20 :::
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maintenance order rendered by learned Judicial Magistrate in Criminal Misc.Application No.258 of 1993 in her favour was set aside.
3. Indisputably, applicant was married to respondent on 27.10.1991. Their marriage was performed in accordance with customs and tenets of Mohammedan law. Out of the marriage, the applicant gave birth to a minor daughter, viz., Akbari, who was original applicant No.2 before the learned Judicial Magistrate. She filed proceedings under Section 125 of the Cr.P.C. for maintenance allowance of Rs.500/-
p.m. for
herself and Rs.300/- p.m. for her minor
daughter.
4. The applicant alleged that she was ill-treated by the respondent in the matrimonial home. He used to make unlawful demand for money from time to time.
She was subjected to matrimonial cruelty and, therefore, on 5th September 1993, she lodged a complaint against the respondent, his mother and brother for offences punishable under Section 498-A of the Indian Penal Code. The respondent neglected and refused to maintain her. He performed second marriage. She is unable to maintain herself. The respondent, on the other hand, has sufficient means to pay maintenance allowance being a Contractor and ::: Downloaded on - 09/06/2013 13:37:20 :::
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also Editor of a local newspaper. Consequently, she filed the application for separate maintenance allowance.
5. By filing his written statement (Exh.18), the respondent denied truth into the averments made in the application. He asserted that he never demanded any amount from father of the applicant nor ill-treated her during the period of consortium. He contended that he does not possess sufficient means to provide separate maintenance allowance. He further asserted that since behaviour of the applicant was improper, he has given divorce to her on 4th September 1993 as per the tenets of Personal Law and hence, she is not entitled to seek separate maintenance allowance. He asserted that the divorce was given in presence of two witnesses. Therefore, she was no more his wife and cannot claim maintenance allowance under provisions of Section 125 of the Code of Criminal Procedure.
6. The parties adduced oral and documentary evidence in support of the rival contentions. On merits, the learned Magistrate came to the conclusion that the applicant proved that she was unable to maintain herself and that the respondent had refused to maintain her. The learned Magistrate further held ::: Downloaded on - 09/06/2013 13:37:20 :::
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that the respondent has sufficient means to pay separate maintenance allowance to the applicant and the minor daughter. The learned Magistrate disbelieved the evidence regarding lawful divorce given by the respondent as alleged by him.
Consequently, the learned Magistrate awarded maintenance allowance to the applicant and the minor daughter at rate of Rs.200/- (Rs.Two hundred) p.m. and Rs.100/- (Rs.One hundred) p.m., respectively from date of the application.
7. Feeling aggrieved, respondent preferred revision petition (Cri.Rev.P.No.196 of 1995) whereas, the applicant and her minor daughter preferred counter revision petition (Cri.Rev.P.No.16 of 1996).
The respondent sought reversal of the findings of the learned Magistrate in all respect. The applicant sought reversal of the findings as regards quantum of the maintenance allowance.
8. The learned Sessions Judge heard both the revision petition together. The learned Sessions Judge held that the applicant was lawfully divorced by the respondent in presence of Kazi and two witnesses on 4.9.1993. The learned Sessions Judge relied upon Talaqnama produced by the respondent and held that the applicant cannot claim maintenance ::: Downloaded on - 09/06/2013 13:37:20 :::
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allowance under provisions of the Criminal Procedure Code. At the same time, the learned Sessions Judge held that quantum of maintenance allowance granted in favour of the minor was required to be enhanced from Rs.100/- to Rs.250/-, having regard to requirements of the minor and capacity of the respondent to pay such allowance. Both the revision petitions were accordingly partly allowed. The claim of the applicant for separate maintenance allowance was rejected. Hence, this application.
9. Heard learned Advocates for the parties. I have perused Judgments of both the Courts below.
10. Mr.Syed, learned Advocate for the respondent seeks to rely on "Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh and others" 2000 (3) Mh.L.J.555.
A Full Bench of this Court held that after commencement of the Muslim Women Act, 1986, a Muslim divorced wife cannot apply for maintenance under the provisions of Chapter IX of the Criminal Procedure Code. It is only under section 5 of the Muslim Women Act that by agreement the husband and the divorced wife can approach a Magistrate under Chapter IX of the Code. The question in the present case is quite different. Basically, whether the applicant is lawfully divorced by the respondent is the question, ::: Downloaded on - 09/06/2013 13:37:20 :::
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which needs determination. This finding goes to the root of the matter. The learned Magistrate held that the divorce could not be proved by the respondent.
11. At the threshold, it may be stated that on due appreciation of the evidence, the learned Magistrate gave finding of fact that the divorce was not proved.
The respondent sought to rely upon Talaqnama (Exh.41). The learned Magistrate observed :
"
Now, it is apparent from the evidence of respondent that he has not mentioned the cause of divorce and in the light of the abovesaid authority, it cannot be said that divorce was given by respondent to the petitioner No.1 (Khairunnissabegum). Even, the respondent failed to prove the contents of Exh.41 i.e. the divorce deed. Moreover, the respondent has also not brought at the time of evidence the divorce deed (Exh.41) at the time of cross-examination of petitioner and he has not proved the contents of the divorce deed duly.(Exh.41)."
. The learned Magistrate noticed that the Talaqnama was not confronted to the applicant and that translation annexed with the same was not proved as the true translation. The learned Magistrate further held that service of the Talaqnama also was not proved. These are findings of facts. In the exercise of revisional jurisdiction, such findings of ::: Downloaded on - 09/06/2013 13:37:20 :::
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facts could be interfered with only when the learned Sessions Judge could find perversity committed by the learned Magistrate while appreciating the facts. The impugned Judgment does not show that the learned Sessions Judge found perversity in the appreciation of facts as done by the learned Magistrate. The learned Sessions Judge seems to have usurped the revisional powers as if the revision petition was an appeal. This appears to be improper approach of the learned Sessions Judge. The learned Sessions Judge observed :
"
No doubt an affidavit showing the correctness of translation is not filed on record, but from the evidence as well as from the trend of cross examination to the witnesses it seems that the contents of the document of Talaknama are not disputed by anybody. There is no cross-examination or the wife has no where contended that the document is something other than the Talaknama. Therefore, non-production of an affidavit in support of copy of translation cannot be treated as fatal and the whole document should be rejected."
12. I do not subscribe to above view taken by the learned Sessions Judge. The burden was not on the wife (applicant) to prove anything in regard to the contents of the envelope wherein the Talaqnama was sent to her. The envelope was not opened by her nor service of the same is duly proved.
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13. Coming to the fact situation of the present case, it may be mentioned that DW-1 - Aslamkhan (respondent) admitted that he was unable to locate exact date of the Talaqnama. He examined DW-2 Syed Musa in order to prove the Talaqnama (Exh.41). He is Kazi. He states that the respondent visited his office on 4.9.1993 alongwith witnesses and expressed intention to divorce the wife. So, he scribed the Talaqnama. He also states that the Talaqnama bears signatures of two witnesses, viz., Mohammad Ibrahim and Md.Jainoddin alias Babusaheb. He admits that registers are maintained as regards the Talaqnama.
He did not bring the register of Talaqnama (divorce) whilst was in the witness box. He did not issue any notice to the wife prior to the divorce. Nor he states that any Arbitrator was appointed to convince the parties in order to arrive at settlement.
14. Even assuming that the said Talaqnama was sent by the respondent to the applicant, it is not sufficient to bring an end to the marital relation between them. There is no iota of evidence on record to show that the Talaq was preceded by an attempt for reconciliation by an Arbitrator. The respondent did not state that any attempt was made by the Kazi to dissuade him from granting talaq to the wife though the Kazi says so. The respondent does not remember ::: Downloaded on - 09/06/2013 13:37:20 :::
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the date of talaq.
15. A Full Bench of this Court in "Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan" 2002 (3) Mh.L.J.602, Mh.L.J.602 held that Talaq by husband, under the Mahomedan Law, must be for reasonable cause and shall be preceded by attempts of reconciliation between husband and wife by Arbitrators for a valid Talaq. The conditions preceding to the stage of giving of Talaq are also required to be proved. In the present case, whether the Talaq is in the form of "Biddat" or "Bidai" is not clear.
16. The Apex Court, in "Shamim Ara vs.State of U.P.and another" 2002 (7) Supreme 39 held that Talaq must be for a reasonable cause and it must be preceded by an attempt of reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the other by husband from his. So, if their attempts fail, "talaq" may be effected by pronouncement.
17. Considering the fact situation of the case in hand, it will have to be said that there was no attempt to seek help of any Arbitrator for reconciliation. The Talaq is said to be lop-sided action of the respondent (husband). The onus lies on ::: Downloaded on - 09/06/2013 13:37:20 :::
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husband to furnish strict proof of his alleged divorce. The husband cannot simply rely on alleged communication of divorce without furnishing proof regarding sufficiency of the reasons and fulfilment of the conditions required for a valid divorce. A Single Bench of this Court, in "Naimunbee v.
Sk.Sikandar Sk.Rehman and another" (2003 CRI.L.J.3257), CRI.L.J.3257) held that divorce pleaded by the husband must be established through cogent evidence.
It is observed that there is no presumption in favour of a divorce. The divorce pleaded by the respondent (husband), in the case in hand, is not proved.
18. To conclude, it will have to be said that the impugned Judgment of the learned Sessions Judge is erroneous and amounts to miscarriage of justice.
Considering the present hike in the prices of essential commodities, need of the wife and the fact that the respondent has sufficient means, I am inclined to hold that from date of present application, the applicant is entitled to claim at least Rs.1,000/- (Rs.One thousand) p.m. Hence, the impugned Judgment is set aside. The application is allowed and the respondent is directed to pay maintenance allowance to the applicant/wife as per the rate awarded by the learned Magistrate uptill the date of filing of the application under Section 482 ::: Downloaded on - 09/06/2013 13:37:20 :::
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of the Cr.P.C. and from date of the application in this Court at rate of Rs.1,000/- (Rs.One thousand) p.m. The applicant will be entitled to recover costs of Rs.5,000/- (Rs.Five thousand) from the respondent.
( V.R.KINGAONKAR ) JUDGE (vvr/criappln829.97) ::: Downloaded on - 09/06/2013 13:37:20 :::