Madhya Pradesh High Court
Smt.Birjis Jehan Begum vs Abdul Saleem on 10 January, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 10 th OF JANUARY, 2024
CRIMINAL REVISION No. 273 of 2003
BETWEEN:-
SMT.BIRJIS JEHAN BEGUM W/O ABDUL SALEM D/O
KALLU KHAN, AGED ABOUT 35 YEARS, BEHIND GUDDU
KIRANA STORE , WARD NO. 11 SANJAY NAGAR
SHAHJAHANABAD (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT VERMA - ADVOCATE WITH SHRI VAIBHAV
VISHWAKARMA - ADVOCATE)
AND
ABDUL SALEEM S/O ABDUL RAHIM, AGED ABOUT 48
Y E A R S , RAILWAY STATION BARKHED TEHSIL
GOHARGANJ (MADHYA PRADESH)
.....RESPONDENT
(NONE FOR THE RESPONDENT)
This revision coming on for hearing this day, the Court passed the
following:
ORDER
This is a criminal revision filed by the applicant/wife assailing the order dated 28.11.2002 passed by the Sessions Judge, Bhopal in Criminal Revision No. 162 of 2002.
2. It is contended by the counsel for the applicant that marriage of the applicant was solemnized with the respondent somewhere in the year 1990. After marriage, the applicant/wife was subjected to cruelty. On account of matrimonial disputes, the applicant/wife had to approach the Judicial Magistrate First Class, Bhopal by filing an application under Section 125 of Cr.P.C. The Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 1/12/2024 11:02:01 AM 2 said application was decided by the Judicial Magistrate First Class, Bhopal vide order dated 1.4.2002 passed in in M.J.C. No. 1 of 2000 directing the respondent/husband to pay maintenance to the tune of Rs.1000/- per month to the applicant/wife. The order dated 1.4.2002 passed by the trial Court was assailed by the respondent/husband by filing a revision before the Sessions Judge, Bhopal. The Sessions Judge, Bhopal vide order dated 28.11.2002 allowed the revision filed by the respondent/husband and set aside the order dated 1.4.2002 passed by the Judicial Magistrate First Class, Bhopal and concluded that as the applicant/wife was divorced by the respondent/husband in past, the application under Section 125 of Cr.P.C. was not maintainable, on the contrary, an application under Section 3/4 of the Muslim Women (Protection of Right on Divorce) Act, 1986 (hereinafter referred to as the Act of 1986), ought to have been filed.
3. It is contended by the counsel for the applicant/wife that the order impugned passed by the revisional Court suffers with the infirmity and perversity, inasmuch as, in Paragraph 8 of its order, the revisional Court has concluded that as the factum of divorce was brought to the notice of the applicant/wife in the written statement, which was filed by the respondent/husband, the application filed by the applicant/wife under Section 125 of Cr.P.C., according to the revisional Court, was not maintainable. It is further contended by the counsel that identical controversy has been taken note by the Apex Court in the case of Shamim Ara Vs. State of U.P. and another
- 2003 Cr.L.R. [SC] 24 whereby the Apex Court has considered the aspect that the a divorce pronounced in past cannot itself be treated as effective divorce (talaq) on the date of delivery of the copy of the written statement to the Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 1/12/2024 11:02:01 AM 3 wife. It is further contended that the factum of divorce is required to be proved by adducing evidence and pronouncement of talaq cannot be based merely on account of plea in the written statement. Thus, it is submitted that the impugned order passed by the revisional Court be set aside.
4. Heard the counsel for the applicant and perused the material available on record.
5. A perusal of the record, reflects that the order dated 1.4.2002 passed by the Judicial Magistrate First Class, Bhopal of grant of maintenance to the applicant to the tune of Rs.1000/- per month was assailed by the respondent/husband by filing a revision before the revisional Court and the revisional Court vide impugned order dated 28.11.2022 concluded that as there was a divorce in past, which was brought to the knowledge of the applicant/wife by filing written statement, therefore, by virtue of the provision of Section 3 of the Act of 1986, the applicant/wife was not entitled for any maintenance under Section 125 of Cr.P.C. On the contrary, the applicant ought to have taken recourse to the remedy available under Section 3/4 of the Act of 1986. The revisional Court while arriving at the aforesaid conclusion observed in Para 8 as under:-
"8. The present applicant Abdul Saleem has given categorically statement before the trial court that he had divorced the non-applicant, the divorce did as per Ex.D/1 which has been proved by the statement of non-applicant. As regards the intimation of divorce it may be true that previously the non- applicant has got no intimation about the divorce but after filing the written statement the non-applicant has knowledge of this divorce, and on the basis of this knowledge, it can be held that from the date of filing of this written statement the non-applicant Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 1/12/2024 11:02:01 AM 4 wife has got knowledge of the said divorce. The relevant provisions of Section 3 of the said Act are as under :-
"Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to - (a) a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband"
6. From perusal of aforesaid, it is evident that the factum of divorce was brought to the knowledge of the applicant/wife by making averments in written statement by the respondent/husband. It is also not in dispute that no evidence has been adduced to prove the factum of divorce (Talaq) in terms of the judgment of the Apex Court in Shamim Ara (supra). The Apex Court in the case of Shamim Ara (supra) held in Para 16 as under:-
"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 Centuary 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 effectuating 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 Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 1/12/2024 11:02:01 AM 5 in the decided cases referred to by Mulla and Dr. Tahir Mahmood 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 followed by 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."
7. The Apex Court, while taking into consideration the aspect where mere a bald plea was taken in the written statement pertaining to divorce, concluded that such divorce is required to be established by adducing evidence and mere plea in the written statement is not sufficient to hold that there was a divorce in past.
8. In view of the decision of the Apex Court in Shamim Ara (supra), in the considered view of this Court, the revisional Court has committed error in passing the impugned order dated 28.11.2002. It is also evident that the revisional Court has not taken into consideration the judgments referred to by the Judicial Magistrate First Class, Bhopal in Paragraph 8 of the order dated 1.4.2002.
9. Resultantly, the criminal revision is allowed. The impugned order dated 28.11.2022 passed by the Sessions Judge, Bhopal in Criminal Revision No. 162 of 2002 stands set aside and order dated 1.4.2002 passed by the Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 1/12/2024 11:02:01 AM 6 Judicial Magisrate First Class, Bhopal in M.J.C. No. 1 of 2000 is hereby restored.
(MANINDER S. BHATTI) JUDGE PB Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 1/12/2024 11:02:01 AM